Attorney Journal, Orange County, Volume 123

ORANGE COUNTY

Volume 123, 2016 • $6.95

Shared Qualities of Top Sellers

Mike O’Horo Memo to Senior Partners: Motivating Younger Lawyers to Generate New Business

Larry Bodine

Avvo’s Business Model Faces Scrutiny

Guy Loranger

3 Keys to Reaping the Rewards of Relationships

Stephen Fairley

Challenges & Adjustments in a Merger

Bob Denney

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre

Law Firm of the Month

Keller/Anderle LLP, Formidable Force

Irvine

Specialization matters.

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

— JASON HUGHES President & CEO, Hughes Marino

ORANGE COUNTY CORPORATE REAL ESTATE ADVISORS

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

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

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

ORANGE COUNTY LOS ANGELES SAN DIEGO SAN FRANCISCO SILICON VALLEY

2016 EDITION—NO.123

TABLE OF CONTENTS

10

6 Challenges and Adjustments in a Merger

by Bob Denney

8 Memo to Senior Partners Motivating Younger Lawyers to Generate New Business

by Larry Bodine

10 Shared Qualities of Top Sellers

by Mike O’Horo

12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor

EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths

16

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden Ariel Dixon CONTRIBUTING EDITORIALISTS Bob Denney Stephen Fairley Mike O’Horo Monty McIntyre Larry Bodine Guy Loranger WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

LAW FIRM OF THE MONTH

16 Keller/Anderle LLP, Irvine Formidable Force

by Jennifer Hadley

22 3 Keys to Reaping the Rewards of Relationships

by Stephen Fairley

26 Avvo’s Business Model Faces Scrutiny

by Guy Loranger

28 McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre

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

Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement.

Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2016 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

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Challenges and Adjustments in a Merger

by Bob Denney Bob Denney is a recognized authority on strategy, management and leadership for law firms and companies. He serves as an outside Director on company boards and has also served as an interim CEO in turnaround and crisis situations.

For further information visit our website at www.robertdenney.com.This article appeared in a recent edition of Of Counsel. It is reprinted with permission.

T

here is a drama that is acted out every day on the stages of hundreds of law firms throughout the world. Firm A, which may have been a local, regional or even national firm, has recently merged into (read “acquired by”) Firm B, a larger national or international firm and the partners from Firm A are adjusting to being part of such a huge firm.

Some of these partners may compare this situation to their first semester at a college that was many times the size of the high school from which they had recently graduated. Others may compare it to the first few months of marriage (at least the first marriage) after the honeymoon was over. Both of those situations require learning and adjustment. However, for most partners, nothing compares to the experience of having their firm of 50 or 100 or 200 lawyers merge into a firm of 800 or 1,000 or 1,500 lawyers. For some it is exciting and energizing. For most, however, it is unsettling and can sometimes be traumatic.

There are many pluses to becoming part of a much larger firm—but there are also many differences and challenges. If the merger is to be successful, the partners in Firm A must anticipate the differences and challenges and Firm B must recognize them.

Let’s look at those before we discuss the pluses.

Some of the Differences In addition to sheer size, there can be many other differences, which the partners in Firm B may not recognize. Here are some of them:

• Firm A may have had only one, or several, offices. Firm B has many more, some of which may be in other countries.

• Firm A may have had 10-15 practice groups with no more

than 20 lawyers in a group. Firm B has 30-40 practice groups, some of which may have 100 lawyers in the group and these lawyers are located in different offices.

• Firm B’s technology is probably far more advanced than Firm A’s was.

• The partners in Firm A knew, or at least recognized, each

other. Some of the partners in Firm B may never have met each other.

6 Attorney Journal Orange County | Volume 123, 2016

• Firm A may have had a participatory form of governance whereas Firm B has a corporate form where the senior management group makes most decisions.

• Firm B probably has far more policies and procedures.

• Some of the partners from Firm A may now have far less contact with each other and, as a result, feel a loss of collegiality.

• The Firm A lawyers will almost certainly experience “E-mail overload” as a result of the increased need to use e-mail for communication with the larger firm.

• The compensation system may be different.

• And the culture is almost definitely different.

Some of the Challenges and Adjustments The partners from the merged-in firm should expect to face certain challenges and to go through a period of learning and adjustment. One of the first challenges will be learning the policies and procedures of their new firm, i.e., its way of doing things. This will take time. To accelerate the process, large firms that have been through several mergers usually have an indoctrination program for the new lawyers, similar to the program for entry-level associates.

Another challenge for the new partners will be learning the array of additional services and expertise available in their new firm and building relationships in the firm so that they can use and market these services. This will take even more time.

In fact, to be blunt about it, some of the partners in Firm B may not know all of their firm’s capabilities either. This challenge can be addressed in several ways:

• Meetings of the lawyers in the practice groups from both

firms. These should have been started before the merger was finalized and must continue after;

• The partners from both the former Firm A and Firm B referring work to each other; or

• The new partners visiting some of the other offices in Firm B.

Practice Group Differences

The Pluses

In addition to learning about the services and expertise available in the larger firm, the partners (and also the associates) must learn the styles and philosophies of certain practice groups. One example is Litigation. Firm A’s approach may have been to take every possible case to trial while Firm B may emphasize settlement, arbitration or ADR to a great degree. Most of the new partners will feel some loss of autonomy, particularly in accepting new matters or clients. The principal cause of this will probably be the increased potential for legal or business conflicts in the larger firm and the need to deal with them. If Firm B has a policy of not accepting certain types of matters or clients, this can also cause the new partners to experience a loss of autonomy, particularly if it means they must “fire” some clients they served in their prior firm.

Some of the adjustments can be traumatic. Adapting to a different culture is often one of them, particularly if Firm A had a relaxed and informal culture that most large firms do not have. Another adjustment, which may seem minor to some lawyers, can arise if a Firm A partner, who worked in a downtown office, is moved to a suburban office which he or she may interpret as being sent to “Siberia.” The reverse can also be upsetting if a partner, who enjoyed working in a suburban office five minutes from home, is moved downtown and must now commute an hour each way in heavy traffic.

What is often overlooked in a merger of this type is its impact on the support staff of the merged-in firm. In some ways it can be as unsettling and even traumatic as it is to the partners.

Unless, or until, the acquiring firm focuses on integrating them, Firm A’s support staff will probably feel like they are in a small boat that is being tossed about in a bad storm.

The partners—and everyone—in the merged-in firm will find it much easier to face the challenges and make the necessary adjustments if they keep in mind the pluses that should result for them from the merger. These can include: • The access to far greater resources, not only legal but also financial, technology, staff support and marketing;

• The opportunity for greater professional development and for upgrading their practices;

• The opportunity to “retool” their practices or sub-specialize; • A bigger platform to grow their practices and the marketing resources to do so;

• Greater firm name recognition; • The opportunity to increase their income; • Financial security, particularly if their former firm was undercapitalized or was in financial difficulty; and

• A funded pension or deferred income program.

There is little or no honeymoon period after the marriage of a smaller or even mid-size firm with a much larger one. However, the drama that results from the merger need not—and should not—end in tragedy for the lawyers and staff from the acquired firm. This will only happen, however, if all the casts of both firms know their roles and play them. n

“Us” Instead of “We” and “They” There are a few challenges that must be recognized and adjustments that must be made by the acquiring firm. Most important of these is the need to devote the time and effort needed to integrate the acquired firm. This process should be started even before the merger—such as with the practice group meetings above—and must be continued after the merger. It will take time, at least a year and possibly longer.

The key to successful integration after a merger is the attitude of the acquiring firm. It is understandable if the lawyers and staff of Firm A refer to themselves as “we” for a while and refer to their new firm as “they.” However, it is not understandable— or acceptable—if the lawyers and staff of Firm B do the same.

“They” should never be part of Firm B’s vocabulary. From the first day of the merger, everyone in the acquiring firm should adopt the attitude that it’s now “us.”

It is also critical for Firm B to listen to the problems and concerns of the personnel from Firm A and to acknowledge and address them. These can include compensation or desire for a role in management, which are often resolved through guarantees for several years after the merger.

Attorney Journal Orange County | Volume 123, 2016 7

“You will motivate more people by capturing their imagination with an idea than with money.”

Memo to Senior Partners

Motivating Younger Lawyers to Generate New Business

by Larry Bodine

Larry Bodine is a Sr. Legal Marketing Strategist. Former litigator, former New York Daily News journalist, former American Bar Association publisher, ABA Edge Award recipient and frequent CLE speaker. Larry has been a recognized authority in legal marketing for two decades.

As you may have noticed, there is a generation gap in your law firm. You and your colleagues would like to plan your exit strategy, but meanwhile the younger generation is not ready to step up to become the new leadership.

The associates and income partners may resent being asked to generate new businesses. Some of the associates don’t even care if they become a partner! Some will leave just after they finish paying off their student loans —perhaps to enter another field entirely. The income partners don’t have their own clients and say it’s your fault their hours are low because you’re not giving them enough assignments.

The younger generation doesn’t have the same work ethic that you do.

They say they want “work-life balance” when you suspect they just want to go home early. The new associates are rude, lazy and lacking in social skills.

How do you motivate these “drone” lawyers?

As you’ll see, there is a way to spur them to do business development activities, and even get them to make more money for you.

The Rosetta Stone to this mystery is understanding that the younger generation grew up very differently from you. Your parents lived through the Depression, and taught you the value of a dollar and not to waste food.

You listened to rock music through stereo speakers. You passed notes in class. You lived through the scary times of the assassinations of Martin Luther King and Robert Kennedy, and the Vietnam War. You watched the first man step onto the moon on TV. You probably had a set of World Books in your living room. Vacations usually involved a very long car drive. You had to negotiate what channel was on the family TV and perhaps shared a room with a sibling. You had a college deferment from the military and hoped to get a high draft number. When you began your law practice, your job came before personal interests, and your colleagues were mostly white men. You came to work early, were not afraid of hard work, and caught up in the office on weekends.

Contrast that with how they grew up: • They grew up in the best of times. Their parents had second homes, jet skis and SUVs.

• They always had their own rooms with their own TVs. They didn’t need to share.

• The Vietnam War is ancient history—it ended 33 years ago. Kids today

don’t even face the draft. The critical events of their lifetime were 9-11 and the Iraq and Afghanistan wars.

• Their world is culturally diverse. They never remember a time when only white people were on TV. Family vacations were in foreign countries reached by jet.

• They grew up with cell phones, instant messaging and text messages.

E-mail is something that older people use. They don’t buy records; they download music and listen to it on iPods. And they like hip-hop music with singers like Flo Rida, Chris Brown and Alicia Keys, whom you’ve probably never heard of.

• They get their news online and watch videos on YouTube. They use

Wikipedia as their encyclopedia, and look up phone numbers on Google.

8 Attorney Journal Orange County | Volume 123, 2016

And here’s the key difference: law practice to them is just a job. They don’t view it as one of the learned professions (law, medicine and clergy). It’s a place to make money and, yes, pay off their loans. They view you, senior partner, to be selfrighteous, a workaholic, and clueless with technology.

• Introduce the younger lawyer to the key contacts at your

The Solution

• Find a way to give your protégé the origination credit for

Make the practice of law cool again.

You need to bring back the élan of Perry Mason getting a confession on the witness stand, or Paul Newman winning in “The Verdict,” or how a personal injury lawyer represented families whose children died of leukemia in “A Civil Action.”

What they see now are slimy lawyers played by George Clooney in “Michael Clayton,” and “Boston Legal” with the bloated William Shatner playing the unethical Denny Crane.

The younger lawyers already understand that running a law firm is a business. They’ll take a pay cut to work at a different place that they think is a happening office that’s fun to work in.

What they need to understand is that being a lawyer is a great profession, that in the past lawyers once primarily held the halls of Congress and our national leadership, that being a lawyer comes with a lot of respect and authority.

Where to start?

Show some leadership. Close the firm at 4:30 one day and take everyone out for a happy hour. Relax the dress code and let people work in business casual clothes. Be somebody they want to work with. Share your strategy of a case and tell the young lawyers the importance of where they fit in, so they feel a sense of teamwork. People will stay at a firm if they like the people they work for, especially if they admire and look up to you. Becoming a leader builds camaraderie and positions you as a leader.

Be a mentor. Take a serious look at the next generation and pick out the lawyer you’d like to groom to turn into a rainmaker.

You and your protégé are going to market together. Your young lawyers won’t succeed in business development unless they have a silver-haired lawyer with business experience show them how it’s done. Enter into an express understanding with the protégé that you will show them how to get clients if they make the effort in return. For example:

• Before you meet with a prospective client, ask your protégé to research the company and come up with five good questions you can both ask during the meeting.

• Take the young lawyer on meetings with prospective clients and have your protégé handle the follow-up contacts.

• At the meeting with the potential client, let the younger

lawyer hear what you say and see what you do to attract the client. Give your protégé a speaking role at the meeting. Debrief the meeting afterwards to point up the lessons to draw from it.

clients. Arrange a “how’s businesss” meeting with the client, and ask the client to bring along some of their young people.

Assign your protégé to get to know people his or her own age at the client. Afterward, de-brief the young lawyer about what’s going on at the client company. generating new business. At the very least, split the credit that you would get as a partner.

Skill-build and educate. Alongside this type of mentoring, there are a host of ways you can build the skills of a younger lawyer…and stir the kind of excitement and comfort with business development that will prove invaluable for both of you:

• When a younger lawyer brings in a new file, find a way to make him or her be the handling lawyer. Having responsibility makes a young lawyer feel important.

• You are probably overcommitted with organizations and

associations you belong to. Select one that you will transfer to the younger lawyer. Attend one of the trade associations meetings together with your protégé, make some initial introductions, and then give your protégé the responsibility to get new clients from the organization. This will free you up to concentrate on the groups that generate clients for you.

• Ask the younger lawyer to write up the important elements

of a matter he or she worked on, particularly one that other clients (or prospects) would be interested in. Then, polish it together. Direct the young lawyer to stress the problems the client was facing and the special value the legal team delivered in that case. Publish the piece jointly in a firm newsletter and other publications to give your protégé public recognition.

• Tell your protégé that you want to present a web seminar,

record a podcast or start a blog together. You will supervise the content of the marketing vehicle. But you want the younger lawyer to figure out the technology, and have a speaking/ writing role as well

Create a personal relationship. Ask the younger lawyer why they decided to go to law school, and what they like best about law practice. Open up, and give your protégé the same information about yourself. Tell war stories about the great lawyers you have known, including specific details about the difference they made in your firm or community. Invite your protégé and his spouse to your home for dinner. Young people want to be inspired and are looking for role models.

Recommend that they take a vacation to Washington, D.C. and see the original copy of the Declaration of Independence and the Constitution.

Make them realize why law is one of the great professions.

Certainly, running a law firm is a business. But give them an emotional reason to be a rainmaker at your law firm. n

Attorney Journal Orange County | Volume 123, 2016 9

Shared Qualities of Top Sellers S

elling is a learned skill, which means anyone can become good at it if they commit to it. Like any other skill, some will have less difficulty than others learning it, but anyone can learn.

Cultivating the following traits and mindsets will accelerate your learning curve and raise the ceiling on how good you can become.

Here is what a Harvard Business School study identified as the common traits of top salespeople:

• Don’t take “no” personally. This is more difficult for lawyers,

who tend to score in the 30th percentile for “resilience,” i.e., the ability to recover from setbacks or bounce back from disappointment. If you sell the right way, a negative decision will never be about you; it will be about the truth revealed by the high-integrity investigation you conducted. That should make it easier not to take it personally.

• High levels of self-confidence prevent disappointment from

becoming devastation. This relates to the resilience factor, but shouldn’t be necessary. If you’re honestly trying to help the buyer make the best-informed decision for her, you don’t need confidence because, recognizing that you’re focused solely on what’s good for her, she’ll be cooperating with you.

• 100% acceptance of responsibility for results. They don’t

blame the economy, the competition or their firm for dips in sales. The worse things are, the harder they work to make negatives work to their advantage.

• Above average ambition and desire to succeed. This affects

priorities and how they spend their time on and off the job, with whom they associate, etc. This is where lawyers can make the greatest improvement even before they acquire reliable skills. Too often, business development is the last item on a list that too few lawyers ever get to the end of, so BD loses out.

• High levels of empathy, which is the ability to put themselves

in the client’s shoes, imagine needs and concerns and respond appropriately. Those of you who pride yourself on your skill at developing personal relationships should take steps to make yourself more aware of whatever enables you to do this, so you can do it in a conscious, focused effort.

• Intensely goal-oriented. Always knowing what they’re going

after and how much progress they’re making keeps distractions from sidetracking them. If you struggle with BD, forget about grand outcome goals and declare what they’ll accomplish this week. Not what they’ll do, but what they’ll accomplish.

Be outcome-oriented rather than activity-oriented. When you define the outcome, the activities become obvious.

Arbitrary goals are counter-productive. They’re not real, so

10 Attorney Journal Orange County | Volume 123, 2016

by Mike O’Horo they have no credibility with you, and can easily set you up for discouragement. Define what achieving your goals will do for you, professionally, financially, and how it will affect the areas of your life that are most important to you.

• Above-average will power, determination, self-discipline. No

matter how tempted they were to give up, they persist toward goals. This also relates to lawyers’ low resilience, and is therefore the second most opportune area. If your BD efforts are sporadic, episodic and easily distracted, your goal will be undefined and thus unattainable. If you’ve defined real goals that matter to you for concrete reasons, this will be easier.

• Impeccably honest with themselves and clients. No matter

what the temptation to fudge, these winners resisted and gained ongoing client trust. Of all the traits listed, this is where lawyers are best prepared and most naturally suited.

Call me Pollyanna, but in the 25 years I’ve been doing this, I don’t recall working with a single lawyer who seemed likely to cut corners or shortchange their clients.

• Ability to approach strangers even when it’s uncomfortable.

I accept Harvard’s data, but I think it’s very easy to eliminate the discomfort in approaching strangers, which would make this trait unnecessary. The reason we’re uncomfortable approaching strangers is because we fear we won’t be received well. That’s a byproduct of predicating doing business together on first having a personal relationship. Instinctively, we know that only a small percentage of people are likely to become our friends. A much easier approach is to focus on relevance.

If you know a lot about capitalizing or financing startups companies, and you’re interested in the views of someone who has done that, or is now trying to, there shouldn’t be any discomfort in asking someone to express their opinion on a topic. People love being asked their opinion.

Selling takes concentration and focus. And clarity of purpose. How do you rate yourself? What should you be doing to help yourself? The critical, and enabling, question is “How important is it, really, for you to bring in $_______ more business?” Until you have a satisfactory “why,” you’ll just be going through the motions occasionally, hoping for the best. n 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 mikeohoro@rainmakervt.com

COMMUNITY news n As part of its ongoing Diversity Initiative, Selman Breitman is celebrating the one-year anniversary of its joining the Orange County Coalition for Diversity in the Law (“OCCDL”), a collaborative effort of professionals from leading Orange County law firms and other community ASIR FIOLA partners committed to achieving cultural diversity in recruiting and retaining law students and attorneys in Orange County.

The members come from some of the leading firms in Orange County, and across California.

The OCCDL delves deeply into the O.C. community.

There is a wide range of groups that the OCCDL collaborates with, and to whom assistance is provided. Some of the groups include Project SELF (placing local high school students in paid summer internships); UC Irvine School of Law Pre-Law Outreach (helping disadvantaged college students with the law school application process); and Public Law Center (provider of pro bono services for low-income residents). n TLD Law, also known as Tredway Lumsdaine & Doyle LLP, has officially launched a new corporate identity. The new brand direction stems from TLD Law’s evolution to a nextgeneration concierge law firm.

“Since 1961, T-L-D has served more than 30,000 clients across Southern California, so it’s natural DANIEL R. GOLD, that this name change reflect our rich history and brand identity,” said Daniel R. Gold, managing partner of TLD Law. “TLD Law was founded to set clients up for success through any life stage, and our client journeys will continue at the same high service level our firm has provided for more than five decades.”

In addition to the new company marquee, TLD Law also unveiled a corporate identity video, logo, and mobilefriendly website. The firm also is debuting TLD Law PLUS, a legal concierge program that provides businesses of all sizes with timely legal services, across multiple disciplines. For a fixed quarterly rate, companies will have access to the firm’s trusted legal partners and associates for advice on a variety of legal concerns that may arise during a typical business day.

For complex projects, TLD Law PLUS members can create tailored programs to fit their business needs, at preferred rates.

12 Attorney Journal Orange County | Volume 123, 2016

n Recently Newmeyer & Dillion LLP teamed up with developer clients Lennar Corporation, The New Home Company and Toll Brothers, to deliver more than 26,000 diapers to Angel Stadium of Anaheim as part of the annual Builders For Babies Diaper Drive for HomeAid Orange County. To emphasize developer support, Newmeyer & Dillion attorneys Laura Watkins Ives, Ryan Manning, and Bahaar Cadambi made the delivery to the drop-off at Angel Stadium in a dump truck donated and driven by Alberto Pianelli, owner of F&B Rentals. The truck, filled to the brim with diapers and wipes, was enthusiastically received

by HomeAid staff.

This is the fourth consecutive year that Newmeyer & Dillion has participated in this diaper drive. “HomeAid Essentials’ Donation Drive is an annual effort in partnership with the Children and Families Commission of Orange County to collect basic essential items for homeless families,” said Newmeyer & Dillion partner Ives, who heads the drive every year. “To join our clients and the builder community in helping the people in our community receive such a basic need is incredibly rewarding.”

LAURA WATKINS IVES

RYAN MANNING

BAHAAR CADAMBI

n Managing Partner Craig Simon of Berger Kahn and Larry Arnold of Cummins & White will speak to a group of public adjusters on “Fostering Communication and Cooperation Between the Public Adjuster and the Carrier,” June 17th at 10am at the NAPIA Annual Meeting. Offering a total of seven continuing education CRAIG SIMON (CE) credits for public adjusters, the 3½ day event takes place at the Montage Laguna Beach from June 15-18, 2016.

For more than 60 years, National Association of Public Insurance Adjusters members throughout the United States have joined together for the purpose of education, certification, marketing opportunities, legal and legislative representation, scholarship and research, and promotion of the public adjusting profession.

COMMUNITY news n Snell & Wilmer is pleased to announce that partners Susan Grueneberg and Elizabeth Weldon have been named as 2016 Legal Eagles by Franchise Times.

Grueneberg is a partner in the firm’s Los Angeles and Orange County offices. She is certified as a Franchise & Distribution Law Specialist by the California Board of Legal SUSAN GRUENEBERG Specialization. Grueneberg focuses on advising clients on franchise and distribution law, including regulatory compliance.

Her practice emphasizes both domestic and international franchising and licensing, as well as area development arrangements and sub-franchises. In addition to her twelfth consecutive appearance on the Legal Eagle list, she was also selected for ELIZABETH WELDON inclusion in Southern California Super Lawyers— Franchise/ Dealership (2006-2016), the Best Lawyers in America®, Franchise Law (2006-2016), Who’s Who Legal, Franchise (2004-2016) and also Chambers USA, Franchising, Nationwide (2007-2015).

Weldon is a partner in the firm’s Los Angeles and Orange County offices. She concentrates her practice on business litigation, franchise litigation and intellectual property litigation. This is Weldon’s sixth consecutive appearance on the Legal Eagle list. She was also selected for inclusion in the Southern California Super Lawyers—Rising Stars Edition for Franchise/Dealership/Business Litigation (2007-2015) and the Best Lawyers in America®, Franchise Law (2016).

n Greenberg Traurig’s Craig Glorioso was recently recognized as a 2016-2017 Komen Orange County Pink Tie Guy at the Susan G. Komen Orange County 10th REGINALD GILYARD, CRAIG GLORIOSO, Annual Pink Tie Ball. A Pink MARK RUTHERFORD, JOE STEIN, Tie Guy title is given to men PHILIPPE SCHAISON AND LUPILLO RAMIREZ who promote breast cancer awareness in the business world and the community.The pink-tie affair united nearly 600 Susan G. Komen Orange County supporters at AV Irvine and included a host of special elements. Glorioso joins a list of 70 other men chosen as Pink Guy Ties over the past decade.

The 2016-2017 Pink Ties also included Reginald Gilyard, dean, Chapman University’s Argyros School of Business; Douglas S. Ingram, CEO, Chase Pharmaceuticals Corporation; Lupillo Ramirez, MBA, hispanic product/private label and differentiation director, Northgate Markets; Mark Rutherford, senior vice president, human resources, First American Financial Corporation; Philippe Schaison, EVP and president, Allergan Medical; and Joe Stein, consultant, Simply Innovative.

“For more than a decade, our Pink Tie Guys have leveraged their strong community ties to help us engage more community leaders, raise more funds in support of the Komen mission and bring breast health awareness to their employees,” said Lisa Wolter, executive director of Komen Orange County.

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

Email it to PR@AttorneyJournal.us

Attorney Journal Orange County | Volume 123, 2016 13

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by Jennifer Hadley

“W

e’re unique among law firms. The two name partners are women. We have more than 250 jury trials to verdict between us, in an era when many lawyers have never seen a jury except on TV. We try bet-the-company cases against some of the nation’s largest law firms—and win them,” says Jennifer Keller, Founding Partner of Keller/Anderle LLP. Moreover, according to Co-Founder Kay Anderle, “There are only 14 lawyers at Keller/Anderle, yet our cases have billions at stake. Our attorneys went to the finest law schools and trained at some of the most prestigious firms in American but choose to be here. We represent both plaintiffs and defendants in a wide variety of litigation, from business disputes to intellectual property to bad faith to securities to white collar defense. In short, if it’s headed to trial, we’re the ones you want.”

HIGH PROFILE, HIGH RISK CASES YIELD HUGE RESULTS Keller and Anderle are in no way exaggerating the successes of their firm, as evidenced by the enormous cases they’ve taken on, and far more often than not, won. Some of the many civil and criminal cases the firm has tried to verdict and won, include the famous Mattel v. MGA “Barbie v. Bratz” retrial, which Keller took on as lead counsel just twelve days before the jury trial began, and captained MGA to achieve what Reuters called an “astonishing loss for Mattel.” Similarly, the LA Times called the victory a “stunning reversal of fortune for MGA.” Keller would go on to win the California Lawyer of the Year Award (CLAY) from California Lawyer Magazine as the result.

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In another amazing victory, Keller/Anderle represented the plaintiff in Auerbach v. Daily, winning a jury verdict of $350 million for its venture capitalist client—the largest business verdict of the year in California in 2009. Keller and Anderle have also obtained a slew of multi-million dollar settlements for their clients. As Anderle says, “You want to settle on the best possible terms? Bring a great trial lawyer with you. No one’s afraid of a lawyer who never tries cases. With us, our opponent knows we’re not bluffing.”

With these and countless other victories to their credit, it’s no wonder that Keller/Anderle’s calendar is booked solid, including plenty of headline-making cases. According to Anderle, “We are looking forward to an August trial for our plaintiff developer client on his breach of partnership and fiduciary duty case, which involves the development of the largest luxury shopping mall in Beijing.” After that, the firm is planning a successful defense of their client MassMutual in a bellwether class action jury trial.

Later in the fall of 2016, the firm is scheduled to try a billiondollar real estate partnership case. In late October, Keller will defend another developer in an alleged $100 million “pay-toplay” white-collar jury trial.

If all of that weren’t enough, the firm will defend super-agent Michael Ovitz—founder of the Creative Arts Agency and former chair of the Walt Disney Company—against allegations made by a reporter who claims Ovitz hired Anthony Pellicano to intimidate her. In that case, the reporter is seeking more than $30 million in damages. Following that, Keller/Anderle will be defending its client AIG in a high-stakes bad faith action,

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which the firm has deemed unfounded. Beyond that, Keller and Anderle are looking forward to prevailing in their defense of billionaire Broadcom co-founder Henry Nicholas against a $60 million “palimony” claim by an ex-girlfriend.

So, what is it about these two powerhouse women attorneys that keeps them on the short list of trial attorneys to whom some of the nation’s biggest companies, most powerful corporations and high-profile individuals come to for help?

Certainly the list of awards they have amassed, and their membership in elite, invitation-only trial lawyer’s associations, is testament to their trial skills. But beyond the headline victories and national recognition, what lies beneath is a fairly simple philosophy that the women share, about the way law should be practiced.

RECIPROCAL RESPECT By the time she was just 12 years old, Orange County native Jennifer Keller had made the decision to pursue a career as an attorney, regardless of the fact that the profession was overwhelmingly dominated by men. “I was addicted to debating and to Perry Mason,” she says with a laugh. Meanwhile, fellow

Orange County native Kay Anderle had been nurturing a lifelong competitive streak, distinguishing herself as a championship tennis player before pursuing her career as a trial attorney. She too acknowledges that as a woman, she would undoubtedly be viewed as a proverbial ‘underdog’ in a male-dominated profession.

But for someone who relishes competition as much as Anderle, her underdog status only made her all the more determined to go toe-to-toe with her opponents, and emerge victorious.

Though driven to become trial attorneys for different reasons, both Keller and Anderle astutely recognized that the best and fastest way to get trial experience, was to begin their careers in criminal law. As such, for 8 years Keller served as a Deputy Public Defender, while Anderle honed her chops as a prosecutor with the District Attorney’s office for 12 years. “We both liked the fast-paced, action-packed atmosphere of the criminal courts, where you’re in the middle of news as it’s breaking,” says Keller.

Both women would go on to become star attorneys in their offices, and continue to count their time serving the public while gaining extensive trial experience as absolutely invaluable. But beyond that, their experience as opposing counsel in the public sector would bring them together more than once, and would

Attorney Journal Orange County | Volume 123, 2016

17

ultimately serve as the catalyst for the two women to join forces.

“Jennifer and I were on opposite sides of a case years ago. I was the prosecutor, and she was defense counsel. I folded on the case, because quite frankly, my evidence was weak and I knew she would tear apart the complaining witness on cross and ultimately win the trial, so I settled it for greatly reduced charges. If I were facing any other defense attorney I would have taken it to trial.

But Jennifer was well-known for winning almost every case she tried.” The two attorneys soon became friends, and after years in public service, both decided to explore other options. “I had left the DA’s office, and was working in another area of law, which wasn’t particularly interesting,” Anderle recalls, although Keller’s recollection of the event was different. “Kay wasn’t using her considerable skills to her best ability, and although she was financially successful, she was in a field that was not challenging enough for her.”

It wasn’t long before Keller and Anderle’s burgeoning friendship and mutual respect prompted them to begin associating into cases together. By 2008, the two had developed a partnership of respect, based on reciprocal admiration for the other’s strengths.

More importantly though, they recognized that as partners, they could create a firm whose clients would benefit by their vast trial experience, they could take the cases they wanted, control their own destinies, and practice law the way they both agreed it should be practiced. “We see law as a profession first, and a business second,” says Keller.

Thus the firm would no longer focus exclusively on criminal matters, but would begin seeking out—and then winning— massive civil trials. Defending murder and other serious criminal cases in Orange County against seemingly insurmountable odds and finding ways to win them or greatly mitigate the damage had given Keller the confidence to believe she should easily prevail in most civil trials as well. “A trial is a trial. The rules of evidence are the same. The rules of persuasion are the same. It’s about telling a story, and simplifying complex information, without talking down to the jury,” she says.

Anderle’s experience was similar. Prosecuting serious felonies had not only honed her trial skills but gave her great sympathy for victims of crime. This would evolve into compassion for those accused of crimes, and the ensuing havoc that can be caused by a single, momentary mistake. Together the two realized that with few exceptions, their respective experiences would make them a formidable force, whether they were representing plaintiffs in civil matters, or defendants in criminal matters.

“We saw we had something unique to offer. There was a niche that needed to be filled by attorneys with our extensive trial experience,” says Keller. “Most of the civil litigation bar is comprised of lawyers who don’t try cases. We also knew we were up to the intellectual challenge of transitioning from exclusively criminal cases to far more complicated business trials.” The two formalized their partnership in 2008.

18 Attorney Journal Orange County | Volume 123, 2016 18

GREAT MINDS THINK ALIKE From the firm’s very start, Keller and Anderle got along wonderfully. “We agree on almost all decisions about the firm and our cases,” says Keller. However, that doesn’t mean that they don’t have distinctive roles at Keller/Anderle.

“This firm would fall apart without Kay,” Keller states earnestly.

“She is constantly in the courts, handling our white-collar criminal matters, and is the face people in the legal community see most often. Kay also knows everything that is going on in this office. She assigns the teams for each case. She is the go-to person on everything. She knows what is in progress on every case. She answers our clients’ questions. She manages the budget, the vendors, the billings, manages the lawyers and supervises the law clerks. She just handles things,” Keller says. “As a matter of fact, we would be broke if it weren’t for her, because I am a terrible business woman,” she adds with a laugh.

Anderle is equally enthusiastic about singing her law partner’s praise. “Jennifer is the most talented trial lawyer I’ve ever seen.

She is unrivaled when it comes to cross-examination. During one of our particularly high-profile cases, the judge actually invited other judges in to watch her cross. Her ability to think on her feet is remarkable. Jennifer connects with jurors of all types and has a deep understanding of people. The bottom line is that she and I are not what our friend John Keker calls ‘conference-room lawyers.’ We relish battle, know our way around a courtroom, and have a great deal of respect for the jury system.”

What the two won’t do, however, is resort to chest-pounding, intimidation, or dirty tricks. “We prize civility,” says Anderle.

“We have both been in too many cases to engage with anyone trying to push our buttons. We don’t engage in posturing or bluster, which is normally a sign of tremendous insecurity. Jurors don’t like a nasty attorney. They want to hear the story from someone who is honest, doesn’t twist facts, hide things or trade in sarcasm. We’d rather be collegial with our colleagues. And we don’t take ourselves too seriously,” she says.

“We take our cases and our clients seriously, but we don’t go around acting self-important. I’ve seen some lawyers who could give Donald Trump a run for his money, and we’re the anti-that,” she jokes.

Part of taking their clients seriously, however, means that Keller and Anderle are selective about their cases, and truthfully, they can afford to be. With a business that is 100% referral based, Anderle explains what the firm looks for in a new case. “We’ve resisted taking bread-and-butter, template-based cases from institutional clients, because we don’t want to be pigeonholed in a particular field or do boring work. We’re old-fashioned barristers who enjoy trying all kinds of matters. Our specialty is jury trials.

We love that 20% of our practice is white-collar criminal defense, and the other is a diverse array of major commercial cases. On the civil side we represent both plaintiffs and defendants, and take only what we believe to be meritorious cases. We like to make a difference,” she says.

With roughly one-third of their cases involving collaboration with other firms or attorneys, Anderle says, “We respect attorney referrals and would never interfere with the underlying relationship the attorney has with that client. We’re good partners. We don’t overbill and are scrupulously honest. If there’s an easy way or an expensive way to accomplish the same thing, we find the way that saves the client money. We use alternative fee arrangements all of the time, and tailor them to the case.”

Keller agrees, saying, “We like to have ‘skin in the game’ so our interests are fully aligned with our clients’ interests, especially on plaintiff cases. We frequently enter into hybrid fee agreements where the firm charges a reduced hourly rate in return for a success bonus. We know our way around a courtroom and are unafraid without being arrogant. We understand how judges think and enjoy great credibility with them. Our cases are thoroughly litigated and prepped, and if we can win with great pretrial motions, that’s even better. Our young lawyers are the best and the brightest, and their credentials are impeccable.”

Anderle confirms this, jesting, “Jennifer and I often joke about how we’re so selective, we couldn’t even get hired at our own firm.”

FUTURE OF THE FEMALE OWNED POWERHOUSE FIRM Keller and Anderle have clearly established themselves as a force to be reckoned with, but both confirm this is the result of sheer determination and hard work. “We have no typical client. We represent individuals, closely-held companies, and some of the nation’s largest corporations. Several of our clients are billionaires, but we also represent on pro bono matters people who have nothing. There is no one type of case we try, and there is no one-size-fits-all approach for our clients,” says Anderle. “We want to find out what their goals are, and achieve them.”

Furthermore, their well-deserved recognition and reputation makes them an anomaly in the legal field as a whole in yet another way. “Most firms handling major litigation are not headed by women. There are still very few women first-chairing major business trials. There is no other firm in the country that I know of, featuring two women name partners who have tried over 250 cases to jury verdict between them, and have won over $850 million in judgments in seven years,” she adds.

Make no mistake however, these successes are hard-fought by hard-working attorneys. Along with a non-negotiable work ethic, Keller explains that those who seek to become standout

Attorney Journal Orange County | Volume 123, 2016 19

trial lawyers should begin to earn their stripes early on, as she and Anderle did. “Young people who aspire to be trial attorneys almost have to begin their careers in the criminal justice system—there is simply no other way to get substantial trial experience these days.

But to build a reputation they also need to become involved in the legal community, by joining bar associations, meeting other attorneys, serving on committees and giving back as a volunteer.

No great lawyer or law firm can be made out of a 40-hour work week. If lifestyle is a major concern, you’ll never become even a good trial lawyer, let alone a star.”

For their part, Keller and Anderle donate considerable time, money and resources to practically too many organizations to name. Anderle is particularly devoted to working with BEADS for Education, Inc. Through this organization Keller/Anderle LLP proudly sponsors two young Kenyan women to attend boarding high schools, in an effort to “educate the women who can then take their education back to their villages.” Other causes close to the hearts of Keller and Anderle include education (to date they have endowed four university or law school scholarships, and Keller is a Trustee of Chapman University), politics (Keller serves on the board of the Democratic Foundation of Orange County), local bar charities (Keller was President of the OCBA, and Kay served on the board of its Charitable Fund), the arts ( including Segerstrom Center, LA Opera, South Coast Repertory Theater), women’s associations (such as the International Women’s Forum and Orange County Women Lawyers), and organizations that serve the poor (including The Catholic Worker). In addition, the firm annually adopts two local families in need through Share Ourselves, for which the firm does all holiday shopping.

20 Attorney Journal Orange County | Volume 123, 2016 20

With such success already to their credit, just where do Keller and Anderle intend to go from here? According to Keller, “I have worked with many lawyers over the years who toiled behind the scenes to provide me with support and sterling legal work. I must say however, that I have never worked with as brilliant a group of young minds as surround us now. They are fabulously talented.

Our terrific trial consultant, Lee Meihls of Trial Partners, has also been an integral part of our success on our biggest cases.”

So, it’s safe to say that Jennifer and Kay more or less intend to stay the course for the foreseeable future. Says Keller, “We have no interest in merging with another firm, although opportunities have presented themselves. We don’t want to lose control of the autonomy we enjoy. We’re not interested in growth for growth’s sake, or having a steady stream of cookie-cutter cases. We could easily be two to four times our current size if we did. Instead, what we really want for the future is to continue taking highstakes, bet-the-company jury trials, equally balanced between plaintiff and defense, against the biggest firms out there. That’s where the challenges lie, and that’s where we can make the critical difference to a client.” n Contact Kay Anderle Keller/Anderle LLP 18300 Von Karman Ave, Suite 930 Irvine, CA 92612 949.476.0900 info@kelleranderle.com www.kelleranderle.com

3 Keys to Reaping the Rewards of Relationships

by Stephen Fairley

Stephen Fairley is an international best-selling author of 9 books and 5 audio programs, including Practice Made Perfect for Lawyers (2005) and Becoming a Rainmaker: Business Building Strategies for Lawyers. Stephen has spoken to thousands of attorneys at state and local bar associations on topics related to marketing strategies for solo practitioners and small law firms. Sign up to receive Stephen’s report “Top 10 Mistakes Attorneys Make and How to Avoid Them” at www.rainmakerretreat.com

I

was recently coaching an attorney at a small east coast law firm who was lamenting how slow new business has become in the past few months. As we talked, I asked him, as I ask dozens of legal professionals every week, “What have you done in the past 3 months to build relationships with potential referral partners?” He mentioned going to lunch a few times and speaking with a couple over the phone when they made a referral to him.

I asked him to open up his Outlook contact database; there were more than 200 non-client contacts in it including: accountants, financial planners, angel investors, business brokers, and private investment bankers.

Here are the 3 keys I shared with him to develop the relationships in his “golden Rolodex.”

Take an Active Role, Not Passive There is an old Jewish saying: “A man who has friends must show himself to be friendly.” Don’t wait for someone to take the initiative and contact you—be the first to reach out. In the last year we have coached and trained more than 2,500 attorneys and the Rainmakers are the ones who make at least 3-4 contacts with potential referral sources every week.

Action Step: Take 2 minutes and scan your contact list. Select 12-15 names of potential or current referral sources and send them an email or better yet, pick up the phone and call them with an invitation for lunch or coffee. Set up 3 face-to-face meetings per week for the next month.

Here’s a sample script: “It’s been a while since we’ve connected. I was wondering what your schedule looks like for the next week. I’d like to get together with you for lunch or coffee, just to catch up— my treat. Let me know what dates would work better for you.”

Increase Frequency of Contact Try as we might, it’s difficult with our hectic schedules to meet with every potential referral source on a regular basis. Here’s one strategy I teach legal professionals: Set up a Google Alert 22

Attorney Journal Orange County | Volume 123, 2016

for a specific phrase that would be of interest to your referral sources such as “becoming a rainmaker.” Collect interesting articles and keep them in a separate folder (Referral Articles).

Once a month pull one out, print off a bunch of copies and attach a brief handwritten note on each copy (“I thought you might enjoy this article.”). Enclose your business card and mail a copy of the article to all of your referral sources. Several of my clients have doubled and tripled their referrals in 6 months using this simple technique to stay in front of their referral sources on a frequent basis. You can set up a Google alert at: www.google.com/alerts

Focus on Serving Not Selling When you meet with referral sources don’t make the mistake of dominating the conversation. You are there to listen and learn, not hear yourself talk. Any attempt to “sell” them on your services will be a complete waste. Look for ways you can serve them and their clients by connecting them with other resources or pointing them in the right direction regarding a legal issue. Ask a lot of questions about their business. For example:

• How did you first get started in your line of work?

• What are some of the major trends in your industry?

• What kinds of challenges do you face?

• What do you like best/worst about your job?

• And here’s the most important question: How will I know if I’m talking to someone who’s a good referral for you?

Educate them about your Ideal Target Market and how you can benefit their clients only after you have carefully listened to them.

Rainmakers don’t wait for the door to knock or the phone to ring or the referral to come in. They take the initiative, stay in touch, and focus on serving their referral sources, not selling them a service. Remember, people will forget what you tell them. They may even forget your name, but they will never forget how you made them feel. n

“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

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AVVO’S BUSINESS MODEL FACES SCRUTINY

by Guy Loranger

M

any lawyers have fully embraced use of the online legal directory, Avvo. They may highlight on their website that they have a five-star Avvo client rating or a 10.0 Avvo rating. They may also use marketing services such as Avvo Advertising or Avvo Pro. In the past, we have published articles about how Avvo can be effectively used as part of a law firm’s overall online marketing campaign. (See, for instance, “Tips to Boost Your Avvo Attorney Rating.”)

However, since Avvo.com launched in 2007, the Seattlebased company has also faced its share of critics. This is likely due to Avvo’s “like it or not” approach, as Catherine Sanders Reach of the Chicago Bar Association describes in a comment to Crain’s Chicago Business.

Avvo’s business model has faced legal challenges as well.

While the company has successfully fended off those challenges in the past, two new ones have surfaced: Putative class-action lawsuits filed in California and Illinois.

Essentially, both lawsuits allege that Avvo has been using the identities and likenesses of attorneys who do not advertise or market on Avvo.com to generate revenue without the attorneys’ consent.

You should watch these cases as they develop to see if they end up striking at the heart of Avvo’s business model—or fare as poorly as previous claims against the company.

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Attorney Journal Orange County | Volume 123, 2016

Lawsuits Challenge Avvo Advertising, Avvo Pro Services A San Francisco attorney, Aaron H. Darsky, filed the first lawsuit in December 2015 in the U.S. District Court for the Northern District of California. (Docket No. 3:15-cv-05495HSG) Moria Bernstein, a Chicago attorney, filed the second lawsuit in February 2016 in Illinois’ Cook County Circuit Court.

(Docket No. 2016CH01631) As both lawsuits note, Avvo has compiled a free online directory of lawyers from states across the country based on information from public records such as bar admissions. Each listed lawyer receives an Avvo profile page, regardless of whether the lawyer has asked for one. A lawyer can claim the profile and manage the information that is listed or simply leave it alone.

The profiles, in and of themselves, generate no revenue for Avvo, the lawsuits claim. Lawyers do not have to pay for the profiles, and consumers do not have to pay to view them.

Instead, according to the lawsuits, Avvo makes money by selling advertising and marketing space on the lawyer profile pages. The two marketing services that are specifically at issue in the lawsuits are:

• Avvo Advertising—Attorneys pay Avvo a monthly fee, and in exchange, their ads are displayed as “sponsored listings” that can be found within the profile pages of other attorneys, the complaints state.

• Avvo Pro—In exchange for a monthly fee, Avvo keeps other attorneys’ sponsored listings off an attorney’s profile page, according to both lawsuits.

Bernstein’s lawsuit, in particular, claims that Avvo Pro is meant to “coerce” a lawyer into paying a marketing fee so that Avvo “will not misappropriate” the lawyer’s identity or sell advertising space to the lawyer’s competitors.

Both Darsky and Bernstein state in their complaints that they have subscribed to neither Avvo Advertising nor Avvo Pro. They complain in their respective lawsuits that Avvo, without their consent, created profile pages bearing their identities and likenesses. Furthermore, without their consent, Avvo sold marketing space on their profile pages to Avvo Advertising subscribers, the lawsuits allege.

According to Bernstein, who practices family and residential real estate law, the attorneys who were sold advertising space on her profile page practice “in the same geographic location and in the same practice areas” as she does.

In his complaint, Darsky admits that Avvo’s attorney listings “may be a permissible First Amendment exercise.” However, he claims, “Avvo’s business practices go far beyond that mere exercise” by using the names and likenesses of the attorneys in their directory, without their consent, to sell advertising or marketing services to other attorneys.

Darsky’s lawsuit points out that, according to a July 2015 Bloomberg News article, Avvo had a valuation of $650 million and raised $132 million in funding.

“The revenues generated by Avvo come almost exclusively from its unauthorized use” of the names and likenesses of attorneys who, like Darsky, refrain from using Avvo’s advertising and marketing services, the complaint alleges.

Lawsuits Bring Right of Publicity, Misappropriation Claims Both Darsky and Bernstein have asserted that Avvo’s business practices violate their respective states’ “right of publicity laws:”

• California—Cal. Civ. Code § 3344 • Illinois—765 ILCS 1075.

Generally speaking, those laws prohibit the use of a person’s identity (name, signature, photograph, image, likeness or voice) for commercial purposes without having obtained previous consent from the person.

The lawsuits also allege common law, or tort, misappropriation claims. Darsky’s complaint, additionally, asserts a violation of the California Unfair Competition Law. Both lawsuits seek an injunction that would stop Avvo from using the likenesses and identities of the named plaintiffs and other putative class members. They also seek statutory, compensatory and punitive damages.

Avvo Has Fought Off Previous Lawsuits As noted above, this is not the first time Avvo has been challenged in court.

Shortly after Avvo.com launched in 2007, two Seattle lawyers sued the company over its ratings system, claiming the company engaged in “unfair and deceptive trade practices by falsely claiming to be objective, reliable and factual,” the Seattle Times reports.

Just a few months after that putative class action lawsuit was filed, the U.S. District Court for the Western District of Washington in Seattle dismissed it, finding that Avvo’s lawyer ratings were a form of protected free speech.

Another lawyer brought a claim against Avvo in 2010. That lawsuit, which alleged false advertising and misrepresentation, was initially filed in Florida and transferred to the same federal court in Seattle where the first lawsuit was ruled on.

It failed as well. As Geekwire explains, the court dismissed the lawsuit under Washington’s anti-Strategic Lawsuits Against Public Participation (SLAPP) law, which is aimed at protecting free speech rights. The lawyer who brought the claim wound up paying legal fees and a fine.

How Will Avvo Fare against New Legal Challenges?

Unlike those previous claims against Avvo, the Darsky and Bernstein lawsuits do not challenge the company’s lawyer rating system. Instead, they attack Avvo’s business model.

So, the fate of previous legal claims against Avvo may not give much indication on how these latest court challenges will fare.

(You might want to check out an analysis of Bernstein’s right of publicity claim on Law360.com by J. Michael Keyes, a Seattle intellectual property attorney.)

Josh King, Avvo’s chief legal officer, described Bernstein’s lawsuit to the ABA Journal as being “bizarre” and “completely ludicrous.” He told the Journal that he expects the case to be dismissed. To date, Avvo has yet to file an answer to Bernstein’s complaint.

However, according to the ABA Journal, Avvo responded to Darsky’s complaint with a motion to strike under the California anti-SLAPP law. It should be noted that there is a similar Illinois anti-SLAPP law.

At Consultwebs, we won’t take a position on either side of these lawsuits or attempt to analyze the merits of the claims.

However, because the cases could end up impacting law firms, including our clients who utilize Avvo in their marketing efforts, we do think it will be important to track the status of these cases in the months ahead. We will make sure to keep you updated as they develop. n Guy Loranger is the Web Content Editor for Consultwebs. com. His role allows him to interact regularly with clients on developing website pages, press releases, blogs and other Web content that promotes their firm’s practice areas and enhances their search engine rankings. He is also Google Analytics IQ certified. www.consultwebs.com.

Attorney Journal Orange County | Volume 123, 2016 27

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 kelsey@adrservices.org

UNITED STATES SUPREME COURT Employment Heffernan v. City of Paterson, New Jersey _ U.S. _ (2016), 2016 WL 1627953: The United States Supreme Court reversed the district court and the Third Circuit Court of Appeals. The First Amendment not only prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity, it also prohibits dismissal or demotion based upon an incorrect belief that the employee had engaged in protected political activity. (April 26, 2016.)

CALIFORNIA SUPREME COURT Civil Procedure (Vexatious Litigants) John v. Superior Court (Chan) (2016) _ Cal.4th _ : The California Supreme Court affirmed the Court of Appeal. Code of Civil Procedure section 391.7’s prefiling requirements do not apply to a self-represented litigant previously declared a vexatious litigant seeking to appeal an adverse judgment or interlocutory order in an action where he or she was the defendant. (May 5, 2016.)

Medical Malpractice Flores v. Presbyterian Intercommunity Hospital (2016) _ Cal.4th _ : The California Supreme Court reversed the judgment of the Court of Appeal, finding that the trial court had properly sustained a demurrer without leave to amend because the applicable statute of limitations was Code of Civil Procedure section 340.5 not section 335.1. Because plaintiff’s injury resulted from alleged negligence in the use and maintenance of equipment needed to implement a doctor’s order concerning her medical treatment, plaintiff’s claim was for professional negligence not ordinary negligence. (May 5, 2016.)

CALIFORNIA COURTS OF APPEAL Arbitration Espejo v. Southern California Permanente Medical Group (2016) _ Cal.App.4th _ , 2016 WL 1613487: The Court of 28 Attorney Journal Orange County | Volume 123, 2016

Appeal reversed the trial court’s order denying a petition to compel arbitration of wrongful termination and whistleblower retaliation claims. The Court of Appeal concluded that defendants met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing plaintiff’s electronic signature. Once plaintiff challenged the validity of that signature in his opposition, defendants were then required to establish by a preponderance of the evidence that the signature was authentic. The trial court erred in striking a supplemental declaration offered by defendants on this issue on the basis that it was untimely because it had to be filed with the original petition papers. (C.A. 2nd, April 22, 2016.)

Attorneys Osborne v. Todd Farm Service (2016) _ Cal.App.4th _ , 2016 WL 1756753: The Court of Appeal affirmed the trial court’s order dismissing plaintiff’s complaint for personal injuries during a jury trial as a sanction for the repeated violations by plaintiff’s counsel of the court’s in limine orders excluding hearsay and opinion testimony. The terminating sanction was an appropriate response to counsel’s repeated flagrant misconduct and was consistent with the trial court’s inherent authority to compel obedience to its judgments, orders and process. (C.A. 2nd, May 2, 2016.)

Civil Procedure (Anti-SLAPP, Costs, 998 Offers, Vexatious Litigant) Abuemeira v. Stephens (2016) _ Cal.App.4th _ , 2016 WL 1702427: The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike relating to the distribution of a video-recording of a private brawl. A videorecording of the brawl, no matter how wide its distribution, was far removed from a citizen’s constitutional right of petition or free speech involving a public issue. The trial court properly denied the anti-SLAPP motion because defendant’s conduct did not involve an act in furtherance of his constitutional right of petition or free speech in connection with a public issue.

(C.A. 2nd, April 27, 2016.)

Boxer v. City of Beverly Hills (2016) _ Cal.App.4th _ , 2016 WL 1678864: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend in a case alleging inverse condemnation against defendant due to

impairment of views from plaintiffs’ backyards caused by the planting of coastal redwood trees by defendant in a park. The demurrer was properly sustained because plaintiffs alleged only impairment of their views and a speculative risk of fire danger, neither of which constituted a taking of their property. (C.A. 2nd, April 26, 2016.)

Goodrich v. Sierra Vista Regional Medical Center (2016) _ Cal. App.4th _ , 2016 WL 1702035: The Court of Appeal affirmed the trial court’s determination that plaintiff was a vexatious litigant under Code of Civil Procedure section 391(b)(2) and (3). After the trial court denied plaintiff’s petition for writ of administrative mandate challenging the decision of defendant to terminate her from its medical staff, plaintiff, acting in propria persona, filed three motions attempting to relitigate the court’s final judgment on the petition. The Court of Appeal concluded that substantial evidence supported the finding. After it denied the second motion, the trial court admonished plaintiff that she could be declared a vexatious litigant “if similar unsubstantiated motions continue to be filed without any reasonable likelihood of success.” Plaintiff, however, failed to heed the admonition. (C.A. 2nd, April 27, 2016.)

J-M Manufacturing Company, Inc. v. Phillips and Cohen LLP (2016) _ Cal.App.4th _ , 2016 WL 1757286: The Court of Appeal reversed the trial court’s order denying an anti-SLAPP motion to strike. Plaintiff sued defendant after it issued a celebratory press release following a verdict in false claims act litigation in which the jury found that plaintiff had knowingly misrepresented to defendant’s governmental clients over a 10-year period that its polyvinyl chloride pipe had been manufactured and tested in a manner that assured it had the strength and durability required by applicable industry standards. Plaintiff conceded that the action arose from protected activity. The trial court erred because plaintiff could not establish a likelihood that it would prevail on the merits.

Defendant’s description of the evidence at trial and the jury’s special verdict in the press release fell comfortably within the permissible degree of flexibility and literary license afforded communications to the media concerning judicial proceedings. The substance of the report was accurate and the release was absolutely privileged under Civil Code section 47(d). (C.A. 2nd, May 2, 2016.)

Sanford v. Rasnick (2016) _ Cal.App.4th _ , 2016 WL 2585250: The Court of Appeal reversed the trial court’s order finding defendants’ 998 offer was valid and awarding defendants some expert witness and other costs. The trial court also erred in denying plaintiff attorney service charges and court-ordered mediation costs. The 998 offer was invalid because it required plaintiff to enter into a “settlement agreement and general release.” Moreover, no settlement agreement or release was attached to the 998 offer. The trial court erred when it did not respond to plaintiff’s counsel’s request to have the court explain how its discretion was exercised. The trial court also erred in stating that the two cost items were not allowed under the statute. (C.A. 1st, April 25, 2016.)

Construction Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) _ Cal.App.4th _ , 2016 WL 1757290: The Court

of Appeal reversed the trial court’s order denying a request to amend the subcontractor’s prevailing party attorney fee judgment against the general contractor to add the insurance carrier for the general contractor. Because the carrier had obtained an assignment of the general contractor’s contractual indemnity rights and was controlling the litigation, it was a real party in interest and the trial court abused its discretion in refusing to amend the judgment. (C.A. 1st, May 2, 2016.)

Education McGee v. Balfour Beatty Construction, LLC (2016) _ Cal.App.4th _ , 2016 WL 1449591: The Court of Appeal reversed a portion of the trial court’s order sustaining a demurrer without leave to amend. The gravamen of plaintiffs’ lawsuit was that lease-leaseback agreements entered into by defendants were a sham to avoid the competitive bid process and were void. The trial court properly sustained the demurrer to plaintiffs’ claims that the school district was required to seek competitive bids. The school district complied with the requirements of section Education Code section 17406.

The plain language of section 17406 does not require use of the competitive bid process. While the Legislature has amended the statute, it has not amended it to require competitive bidding in lease-leaseback agreements. The trial court, however, erred in sustaining a demurrer to the allegations of conflict of interest under Government Code section 1090 because plaintiffs had alleged a cause of action for conflict of interest. (C.A. 2nd, filed April 12, 2016, published May 4, 2016.)

Employment (Arbitration, Rest Breaks) Espejo v. Southern California Permanente Medical Group (2016) _ Cal.App.4th _ , 2016 WL 1613487: See summary above under Arbitration.

Rodriguez v. E.M.E., Inc. (2016) _ Cal.App.4th _ , 2016 WL 1613803: The Court of Appeal reversed part of the trial court’s order granting summary adjudication for defendant, related to plaintiff’s allegation that defendant failed to provide required rest breaks. The Court of Appeal found that section 12(A) of Wage Order 1-2001 obliged defendant to provide a 10-minute rest break in the middle of the work periods occurring before and after the 30-minute meal break insofar as practicable. Defendant was obliged to demonstrate the absence of triable issues regarding its departure from the preferred rest break schedule set forth in Wage Order 1-2001. While defendant’s evidence was sufficient to shift the burden on summary adjudication to plaintiff, plaintiff’s responsive showing raised triable issues requiring the denial of summary adjudication. (C.A. 2nd, April 22, 2016.)

Government (Inverse Condemnation) Boxer v. City of Beverly Hills (2016) _ Cal.App.4th _ , 2016 WL 1678864: See summary above under Civil Procedure.

California Public Records Research, Inc. v. County of Stanislaus (2016) _ Cal.App.4th _ , 2016 WL 1730087: The Court of Appeal reversed the trial court’s order denying a writ petition that sought to compel defendant to reduce the fees it charged for copies of official records. The Court of Appeal concluded that the record Attorney Journal Orange County | Volume 123, 2016 29

lacked evidence showing that the fees charged reflected defendant’s actual costs and defendant’s board of supervisors abused its discretion when it set the copying fees. (C.A. 5th, April 28, 2016.)

McGee v. Balfour Beatty Construction, LLC (2016) _ Cal.App.4th _ , 2016 WL 1449591: See summary above under Education.

Insurance Cummins Corporation v. United States Fidelity and Guaranty Company (2016) _ Cal.App.4th _ , 2016 WL 1726079: The Court of Appeal affirmed the trial court’s order sustaining, without leave to amend, defendants’ demurrer to a complaint for declaratory relief. The parent company of the insured company lacked standing to bring the declaratory relief action against the carriers. (C.A. 1st, filed March 30, 2016, published April 28, 2016.)

Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) _ Cal.App.4th _ , 2016 WL 1757290: See summary above under Construction.

Intellectual Property Ryder v. Lightstorm Entertainment, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1615574: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendants James Cameron and Lightstorm Entertainment, Inc. on claims that defendants fraudulently expressed interest in developing plaintiff’s science fiction story KRZ and used parts of that story

in Cameron’s 2009 film Avatar. The Court of Appeal found that plaintiff’s contract and fiduciary duty claims failed because it found no similarity between the projects as a matter of law.

Plaintiff’s fraud claims failed because he did not offer evidence raising a triable issue of material fact. (C.A. 2nd, filed March 25, 2016, published April 22, 2016.)

Judgment Li v. Yan (2016) _ Cal.App.4th _ , 2016 WL 1757282: The Court of Appeal affirmed the trial court’s order compelling the judgment debtor to produce income tax returns pursuant to a subpoena duces tecum at a judgment debtor exam. (C.A. 1st, May 2, 2016.)

Real Property Daniels v. Select Portfolio Servicing, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1688595: The Court of Appeal reversed the trial court’s orders sustaining a demurrer and granting a motion for judgment on the pleadings. When a lender acquires by assignment a loan being administered by a loan servicer, the lender may be liable to the borrower for misrepresentations made by the loan servicer, as the lender’s agent, after that assignment. And, a loan servicer may owe a duty of care to a borrower through application of the factors in Biakanja v.

Irving (1958) 49 Cal.2d 647, even though its involvement in the loan does not exceed its conventional role. (C.A. 6th, April 26, 2016.) n

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