Attorney Journals, Orange County, Volume 169

ORANGE COUNTY

Volume 169, 2020 $6.95

Treat Your Credibility as Central, Not Peripheral

Dr. Ken Broda-Bahm 7 Things You Must Know Before Starting Your Own Firm

Valerie McConnell An Overlooked List That Holds Hidden Profit Opportunities

Tom Trush

Attorney of the Month

Clark H. Fielding, Fielding Law, APC, Irvine A Relentless Pursuit of Excellence

California Case Summaries

Monty A. McIntyre How to Launch a Law Firm Podcast in 6 Steps

Tom Nixon

Turn Negatives into Positives Using the Contrast Principle

Trey Ryder

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2020 EDITION—NO.169

TABLE OF CONTENTS 6 How to Launch a Law Firm Podcast in Six Steps

by Tom Nixon

10 Treat Your Credibility as Central, Not Peripheral

by Dr. Ken Broda-Bahm

10 EXECUTIVE PUBLISHER Brian Topor

12 Community News

EDITOR Wendy Price

ATTORNEY OF THE MONTH

16 Clark H. Fielding, Fielding Law, APC, Irvine A Relentless Pursuit of Excellence

CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson

by Dan Baldwin

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Dr. Ken Broda-Bahm Valerie McConnell Monty A. McIntyre Tom Nixon Tom Trush Trey Ryder 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.

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22 An Overlooked List That Holds Hidden Profit Opportunities

by Tom Trush

24 Turn Negatives into Positives Using the Contrast Principle

by Trey Ryder

26 California Case Summaries

by Monty A. McIntyre

28 Seven Things You Must Know Before Starting Your Own Firm

by Valerie McConnell

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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.

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How to Launch a Law Firm Podcast in 6 Steps

by Tom Nixon

If “Podcasts are the New Black for Law Firm Business Development,” as has been argued, there is no time like the present for legal marketers to get en vogue and launch their firm’s audio thought leadership into the arena of ideas.

Decision makers are increasingly turning to audio formats …

Everywhere you look, research and data keep pointing to the same new reality: Decision makers are increasingly turning to audio formats to consume content and mine expertise. If your firm and its attorneys are not claiming their seats at the table, there is a good chance your competitors are.

In all likelihood, you’ve considered embarking on a podcasting initiative for your firm, but for whatever reason— be it strategic, tactical or logistical—you haven’t completed the journey. Consider this, then, your roadmap to get from positing to podcasting … from production to promotion.

1 Find Your Niche Performance goals should reflect a company’s business strategy.

While it may seem obvious, in setting compensation performance goals, a company should ask two key questions—first: “what is our business strategy?” and second: “what performance goals will help us motivate employees to further that strategy?” Don’t be afraid of including “soft” or non-financial goals, such as rewarding the CEO for completing certain steps in a succession plan or for increasing customer satisfaction. … attract devoted fans in a narrow but deep domain of specific subject matter …

The goal (at least, realistically) is not to amass a large audience of lightly engaged, occasional listeners, but rather, a deeply engaged cadre of true fans who make your content a priority in their otherwise time-pressed lives.

You’re not endeavoring to be the next Joe Rogan or Adam Corolla. You are trying to attract devoted fans in a narrow but deep domain of specific subject matter in which you can be positioned credibly as a true expert and thought leader.

Remind yourself that this is a business development initiative, not a vanity project or popularity contest.

Once the niche has been articulated, everything going forward becomes easier.

It’s more intuitive to build a content calendar (because you’ll 6

Attorney Journals Orange County | Volume 169, 2020

know what a very specific audience truly cares about), it will feel natural to market your podcast to more easily identifiable decision makers, and it will open doors for future syndication opportunities in target-market media outlets. If, alternatively, you try to create a platform that attempts to appeal to an illdefined, broadly brushed and nebulous audience of “general counsel” or the like, you’ll be met with greater competition, increased user skepticism, and far more difficulty staking claim to the mantle of “thought leader.”

2 Develop a Content Calendar Once you know who you’re talking to, and what that audience cares about, you’ll be able to formulate a content strategy that answers the questions your constituents grapple with professionally.

Start by creating a list of questions you believe these individuals are asking, or what problems they are looking to solve. If you get stuck, start jotting down the questions your clients pose in meetings or via email. Chances are, if your clients are asking those questions, so are your prospects. And so, too, will your podcast audience tune in to learn about.

Next, take that list and prioritize them as best you can. Your top-five are the topics of your first five episodes.

3 Define Form and Format You’ll next want to outline a format and frequency to which you can reasonably commit for the foreseeable future. Things you should define before committing your valuable time and resources—so you don’t fall victim to the “podfade” phenomenon—include: • Format: Am I interviewing guests? Do I have a host interviewing me? Do I solo-cast? We typically caution against solo-casting, as being the lone voice on a microphone is a very uncommon skill. Typically, we encourage a conversational format, with two or more personalities casting at once—whether this is you and another attorney or you and a guest (who may be a prospect you can invite on the show!).

• Frequency: How often can you find the time to carve out for recording an episode per month? Usually, busy professionals can at least do this monthly, but no more than weekly. Somewhere in that range, you will find the frequency that’s right for you. But, whatever you choose, stick to the commitment you’ve made to your audience!

• Episode Architecture: Determine an intended length for each episode and stick to that as well. Be honest about the audience you’re looking to attract, in terms of how much time that likely busy individual will be willing to spend on your podcast. In our experience, 30 minutes is a good place to start...about the same duration as a typical office commute.

4 Get the Tech Right Based on how you’ve defined your podcast’s formatting (above), you’ll need to make modest investments in hardware and, possibly, software, to produce your podcast as professionally as possible. Remember, this podcast is an expression of your (and your firm’s) brand. Handle with care.

• Microphone: Though you can find “free” ways to get audio input into editing software, we strongly encourage that podcasters purchase a good microphone. It doesn’t even have to be a professional-grade microphone used in recording studios. But for $100-200, you can find decentsounding mics that integrate with the USB ports on your computer, or good-quality microphones you can use for live recordings (say, in a conference room setting). For our podcast, The Thought Leadership Project, we like the Blue Yeti mic, which is a compression microphone ideal for podcasting and which plugs right into your USB port.

• Audio Interfacing: Again, depending on your formatting decisions established earlier, you will likely be interviewing guests or conducting a conversation with a co-host. If those guests are remote to your office location, you’ll want to invest in a high-quality Web conferencing software solution, such as Zoom, which allows for session recording and audio compression. If you plan to record your episodes face-to-face in a conference room location or similar, you may need to invest $100-$200 in a fouror six-channel audio mixer with USB interface capability.

(I recommend starting your search at Sweetwater.)

• Editing Software: If you’re on a Mac platform, the Garage Band software that comes on board with your computer offers more than enough editing capability to produce and publish your podcast. There are other free or low-cost options out there for non-Apple users as well, such as Audacity.

5 Invest in the Brand A podcast is every bit as important as any other brand asset your firm will launch into the marketplace and should be regarded as such. In your zeal to get your podcast launched, don’t overlook the branding basics that will help to properly position and promote your podcast: • Naming: Not only should you ideate to come up with a unique name for your podcast that is both descriptive and alluring, you need to do some advanced planning to make sure you’re landing on something distinctive.

As you create your short list of possible names, do some searching in Apple Podcasts to make sure it’s not already taken, nor that there are too many others with similar sounding names.

• Domain: A great way to promote your podcast is to promote it as its own distinct entity, and not some obvious marketing initiative that could potentially scare away potential listeners. One way to do that is to secure and ultimately promote a domain name that markets your podcast by name, such as “The Intellectual Property Cast Dot Com,” or the like. Invest in the domain, even if you ultimately decide to map that URL to a podcast page on your firm’s website. It’s far better than directing listeners to “visit Nixon Law Dot Com, scroll to the bottom of the page, then click on Podcasts, then click on the Intellectual Property Cast,” for example.

• Branding: You’ll also need some identity assets developed, such as a logo. Once you’ve established a visual image that matches the tone and intent of your podcast, you can deploy that brand into your podcast’s thumbnail photo (the image that appears in Apple Podcasts, etc.), and a “cover photo,” which is like a header image for your podcast in publishing directories (similar to your header image on LinkedIn or Facebook).

6 Focus on Hosting and Syndication Once you’ve produced the first four to five episodes of your podcast, you can launch into the podverse. You’ll need to establish two primary properties, one for hosting and one for syndication: • Hosting: Your audio files will need to live somewhere— somewhere that can produce a subscription feed for the syndicators (such as Apple Podcasts and Google Play) to pull your content from as you publish it. WordPress websites can be configured with popular plugins to accommodate the hosting of a podcast, and Squarespace Attorney Journals Orange County | Volume 169, 2020

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We Know Marketing Like You Know The Law

sites offer this capability as part of most subscription packages. Third-party hosting providers will host your podcast at no (Anchor) or little (Podbean, Soundcloud, and others) cost, as well.

• Syndication: To get your project on the popular apps that syndicate podcasts, you will need to establish and configure accounts on Apple and Google Play. Once configured, you will connect these services to the RSS or subscription feeds where your podcast is hosted and—voila!—your podcast is available for listeners to hear, download and subscribe to.

Other popular podcasting apps, such as Spotify, Stitcher, Overcast and others will automatically pick up podcasts syndicated by Apple and Google.

You’ve Only Just Begun Congratulations! You’re a published podcaster! Of course, the project doesn’t end there, but rather moves on to the next chapter: promotion. You’ll want to take active steps to grow your audience in perpetuity. This includes activities like: • Promoting your podcast on social media and announcing new episodes as they go live.

• Using your firm’s existing marketing channels to gain attention for your content, such as a prominent position on the firm’s home page and regular notifications in firm emails and newsletters.

Let us “do the time” to get your project right!

• Writing for the layperson • Putting together a presentation • Developing a marketing strategy • Sprucing up your website • Designing an ad, booklet, flyer or brochure • Establishing a better logo, mission statement or tagline

215-550-1435 • penn-creative.com 8

Attorney Journals Orange County | Volume 169, 2020

• Finding syndication opportunities. Remember that narrowly defined audience you identified earlier? Seek out the content communities and trade media to which that audience flocks. Inquire into opportunities to have your podcasts featured or promoted via those channels. If your content is targeted to a niche and legitimately provides subject matter expertise and insights, you might be surprised how willing industry influencers are to share or even syndicate your podcast.

• Leveraging your podcast as a business development initiative. Looking to open a dialogue with a targeted prospect that’s difficult to reach? Invite him or her to be a guest on your podcast. That’s an invitation that’s unlikely to go unanswered!

If you’re ready to get going on launching your podcast and need a little help getting organized, I invite you to download and complete this “Podcasting for Lawyers Checklist,” which will walk you through these steps and others, and set you on a path to podcasting proficiency.

Congratulations … you’ll soon be wearing the “new black!” n Tom Nixon is a principal with Harrington Communications, a thought-leadership marketing agency serving lawyers and law firms.

He co-hosts The Thought Leadership Project podcast with the firm’s founder, Jay Harrington. Connect with Tom on LinkedIn; follow his latest on JD Supra.

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Treat Your Credibility as Central, Not Peripheral

by Dr. Ken Broda-Bahm The lawyer preparing their case likely goes through a long list of, “What will they think about …” questions, relating to the facts, the evidence, the arguments, and the law. Eventually, that attorney might get to the question, “And what will they think about me?”

Or, maybe not. I think attorneys tend to think of their own credibility as the icing on the cake—something that might matter in grabbing the jury’s attention, for example—but they expect it to be the strength of evidence that wins out. However, that may not be the case. New research shows that jurors treat credibility as a substantive or core part of the message, comparable to evidence, and not just as a peripheral or heuristic cue.

The research team, including consultants from the firm Courtroom Sciences and academics from the University of Nevada, Reno, published the results of their study in the Journal of Applied Social Psychology (Wood et al., 2019). They found, not just that credible attorneys do better (they do), but also that when it comes to damages, attorney credibility matters more than evidence. And this result is coming not so much from the jurors who are half-paying attention, but from those that seem to be thinking most deeply about the case. In fact, those with a higher “need for cognition,” defined as a tendency to engage in and to enjoy effortful thinking, were more influenced by a credible attorney than those with a lower need for cognition. That seems to suggest that, based on the way that credibility is treated, it is the cake rather than the icing. They conclude, “Jurors view attorney credibility as a piece of case evidence and not a peripheral cue as is often assumed.”

We have known for a long time that highly credible sources are more persuasive. But that question has not been fully researched with attorneys, and in a legal setting, we have not had a full understanding of how credibility interacts with evidence and with juror characteristics.

In this study, the team engaged 446 research participants who heard a video-recorded civil trial including opening statements, witnesses, closing arguments, and instructions. They manipulated the strength of evidence, and manipulated credibility using a scale that was developed to assess attorney believability, the Behavioral Assessment of Trial Attorney (BATA) scale, and also measured jurors’ Need for Cognition (NFC), or preference for engaging in difficult mental work, or not.

What they found is that when the evidence is strong or ambiguous, more credible plaintiff attorneys fare better than less credible plaintiff attorneys. Interestingly, attorney credibility was the only significant predictor of compensatory damages, not evidence strength. Apparently, the more credible plaintiff’s attorney is able 10

Attorney Journals Orange County | Volume 169, 2020

to be more persuasive and to evoke more anger, they concluded; “attorneys do matter to the outcome of cases.”

It was really the finding regarding NFC that attracts the most attention, however. In previous research on NFC, which we have written about here, the typical finding is that people who are high in the trait (agreeing, for example, that they “prefer complex to simple problems”) are more attuned to the evidence, while those who are lower in the trait (agreeing, for example, that “thinking is not my idea of fun”) would focus more on peripheral traits, like credentials or likability. These typical findings led the team to expect that the tendency to focus on factors other than evidence would be solved when we have a more sophisticated or higher NFC jury.

But, they found the opposite: Attorney credibility mattered for high, but not for low NFC jurors. The fact that those with a higher preference for cognitive work would emphasize attorney credibility more rather than less leads them to believe that credibility is being treated as a substantive dimension, not a superficial one. “Source credibility is not inherently a heuristic or peripheral cue,” they concluded; instead attorney credibility, “can act as an additional piece of information that jurors use when making verdict decisions.”

One implication is to see it all as substance. Attorneys should treat their own credibility as one of the factors that jurors will consider in deciding whether their client has a strong case or not. The researchers write, “Attorneys must approach each case with a heightened understanding that strong evidence will not necessarily carry the day. There will be instances in which the jurors will integrate the attorney’s perceived credibility into their decisions.”

The other implication is to prepare one’s credibility and defend it as much as you would prepare and defend your evidence. Practicing and assessing your own presentation and streamlining and refining your message is as important a step as discovering and organizing the evidence. It is not a matter of having to display excellence at every step, but it is a matter of being clear, honest, and useful, and in showing respect to jurors. Your case facts and evidence certainly matter, but a credible attorney will always have an edge.

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 21 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

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Attorney Journals Orange County | Volume 169, 2020

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COMMUNITY news n Brown & Charbonneau, LLP is pleased to announce that attorney Mark M. Higuchi has been named as the firm’s newest partner. A graduate of UCLA and Thomas Jefferson School of Law, Higuchi is a member of the Orange County Bar Association, Orange County Trial Lawyers MARK M. HIGUCHI Association, Japanese American Bar Association, Association of Business Trial Lawyers, and Los Angeles County Bar Association. He joined Brown & Charbonneau, LLP as an associate in 2014. Higuchi handles all forms of business and commercial transactional work such as commercial contracts, entity formation (corporations, limited liability co’s, limited partnerships), licensing agreements, partnership and shareholder agreements and employment contracts. Most recently, he served as cotrial counsel on two high-profile trial victories for Brown & Charbonneau, LLP including a $4,800,000 post-trial settlement on behalf of his clients, and a $2,930,000 jury verdict for clients in a fraud and breach of contract case. n Cathy T. Moses joined Cox, Castle & Nicholson’s Litigation team as senior counsel in 2017.

Her experience spans a wide range of business and real estate litigation matters, including business torts, contracts, partnership disputes, and employment litigation. She has CATHY T. MOSES achieved successful outcomes for the firm’s clients at all stages of litigation, including pre-litigation negotiations, dispositive motion practice, trial, and appeal.

Outside of the office, she serves on the board of directors of the Constitutional Rights Foundation Orange County. She graduated magna cum laude and Order of the Coif from the University of Michigan Law School, and earned her bachelor’s degree, cum laude, in history and literature from Harvard University.

After graduating from law school, she served as a law clerk to The Honorable M. Margaret McKeown of the United States Ninth Circuit Court of Appeals. From 2011 to 2012, she served as a Trial Attorney with the United States Department of Justice, Civil Division, Commercial Litigation Branch, in Washington, D.C.

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Attorney Journals Orange County | Volume 169, 2020

n Judicate West, one of California’s leading providers of private dispute resolution services, welcomes recently retired U.S. District Judge Andrew J. Guilford to its roster of neutrals. Judge Guilford will be based in the Santa Ana office and is available for mediations, arbitrations and private judging assignments nationwide.

“Andy Guilford has built an incredible ANDREW J. GUILFORD resume over the course of his career. He has done so much during his more than 45 years in the legal arena, especially in the Orange County community, that if there were an Orange County legal hall of fame, he’d be a first ballot certainty. He has been a leader and a difference maker in all he does, and to say we are excited to have him on the Judicate West team would be an understatement,” said Alan Brutman, President of Judicate West.

With nearly 14 years on the bench, which followed more than 31 years as a trial lawyer, Judge Guilford has overseen numerous jury and bench trials involving many areas such as intellectual property, securities, unfair competition, finance and professional liability. As a judge, he has been very involved with many class actions and multidistrict litigation matters. Following U.S. Senate confirmation, Judge Guilford was appointed to the U.S. District Court for the Central District of California in 2006 where he served by designation with the Federal Circuit Court of Appeals and Ninth Circuit Court of Appeals. He also served as a Patent Pilot Program Judge and on the Multidistrict Litigation Panel.

Additionally, Judge Guilford served on the Ninth Circuit Jury Instructions Committee. Before his appointment, he served as an arbitrator and Judge Pro Tempore for the Orange County Superior Court. n Marjorie J. Burchett, a partner with Crosbie Gliner Schiffman Southard & Swanson LLP (CGS3) who specializes in residential, commercial, mixed-use and master planned real estate developments, was recently installed as a member of Lambda Alpha International (LAI) during its annual Crystal Globe Gala on Saturday, February 1, at the Westgate Hotel in San MARJORIE J. BURCHETT Diego. Burchett joins fellow CGS3 partner Bob Bell in the distinguished honor society.

Membership to LAI is selective and honorary and via nomination only by a current member. To be considered, a nominee must have 10 years of experience in his/her field, have made an outstanding contribution to land economics and demonstrate a commitment to public service and professional ethics.

"I am honored to join this very selective and special group of professionals,” said Burchett. “I am deeply passionate about improving the lives of others and will do my best to exemplify the meaningful standards LAI demands of its members.”

n Fish & Richardson, a global market leader in intellectual property litigation, continues growing its range of industry knowledge with the addition of Jeff Burton and Tim Rawson in the firm’s San Diego-based, Southern California office.

Burton, a former Navy Explosive Ordnance Disposal (EOD) Officer who JEFF BURTON completed two overseas deployments, focuses his patent litigation practice on electrical and computer technologies, telecommunications, medical devices and nanotechnology. During law school, he served as a law clerk for both the U.S. Senate Homeland Security Permanent Subcommittee on Investigations and the U.S. House of Representatives Permanent Select TIM RAWSON Committee on Intelligence. Today, Burton maintains an active Top Secret/ Sensitive Compartmented Information security clearance.

Rawson’s practice involves all aspects of IP litigation and advising, with an emphasis on patent litigation. He works predominately with clients in the telecommunications, gaming, automotive, food and beverage, consumer products and semiconductor industries. He has also represented lowincome startups and nonprofits on a pro bono basis regarding intellectual property matters.

Before joining Fish, Rawson practiced IP law in the Los Angeles office of a large international law firm for three years and served as a Judicial Law Clerk for the Honorable Jimmie V. Reyna of the U.S. Court of Appeals for the Federal Circuit as well as the Honorable K. Nicole Mitchell of the U.S. District Court for the Eastern District of Texas. A Licensed Professional Engineer in Texas, he has extensive mechanical engineering experience in missile control and aircraft system design.

n The San Diego-based law firm of Seltzer Caplan McMahon Vitek announces that David Gouzoules has joined the firm’s Litigation Department as an associate. Gouzoules has more than six years of experience representing individuals and corporate clients in all manner of disputes, including commercial litigation, DAVID GOUZOULES government investigations and shareholder causes of action. He has represented clients in securities fraud litigation, derivative lawsuits alleging breach of fiduciary duty, breach of contract matters, SEC and DOJ investigations, property disputes and probate litigation. Prior to joining SCMV, Gouzoules worked at a large, international law firm. Gouzoules is an active member of both the Association of Business Trial Lawyers and the San Diego County Bar Association. He received his J.D. from the University of Virginia School of Law in 2013 and his B.A. in Political Science and History, with highest distinction, from the University of North Carolina – Chapel Hill in 2010. Gouzoules is admitted to practice law in California and Georgia.

n The California Appellate Law Group, a 16-attorney appellate specialty boutique with offices in San Francisco and Los Angeles, is proud to announce that it is expanding to San Diego with the addition of Johanna Schiavoni.

Johanna has nearly two decades of experience handling state and federal JOHANNA SCHIAVONI appeals, and she is a certified appellate specialist by the State Bar of California.

She is also the 2020 President of the San Diego County Bar Association, which serves 10,000 members in and around California’s second-largest city. Johanna is a former law clerk to Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit.

Attorney Journals Orange County | Volume 169, 2020

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“You can’t check your principles at the door when you arrive at the workplace. And you can’t quit on a case, a client or yourself just because the going gets tough. You must have the drive to do the right thing and the willingness to stick with it regardless of the challenges,” says Clark H. Fielding, Founding Principal of Fielding Law, APC. His firm’s motto reflects that attitude: Integrity and Tenacity.

Fielding began applying those principles to the practice of law in 2007 and has specialized in plaintiff personal injury since 2010. He founded Fielding Law, APC in March of 2019.

Today his firm practices in the area of personal injury and maintains offices in Irvine, California and Tempe, Arizona.

Clients confirm his determined commitment to the highest ethical standards. For example, “Clark and his team were excellent. They constantly fought hard to combat the ridiculous liens the medical facilities filed against my case. Always on their game, they left no stone unturned.

Additionally, they kept me informed at every step along the way, never hiding their intention. Their integrity and transparency are unmatched.”

Calling the contingency fee arrangement “the great equalizer,” Fielding says that structure allows a homeless person to get the same access and caliber of attorney as a multimillionaire. Fielding has represented thousands of wronged and injured clients throughout multiple states, successfully and strategically handling complex and catastrophic and fatal injury cases, which include tragic cases of wrongful death, quadriplegia and traumatic brain injuries. Many of these cases involve individual people and families unable to afford legal counsel.

Empathy Is No Snow Job Much of the empathy and compassion Fielding expresses comes from personal struggles, such as a November 2011 accident in which he blew out both knees snowboarding in 16

Attorney Journals Orange County | Volume 169, 2020

Park City, Utah. He suffered excruciating pain and required emergency surgery. A few days later he experienced terrifying complications in the middle of the night that required an EMS team of firefighters and a life-or-death rush to the emergency room.

Fielding was in a wheelchair and, in his words, “an absolute mess” when he returned home to California, and struggling to hang on to his job. He says his “ride or die” wife Moranda would load him into his wheelchair, strap their one-year-old baby to her back, and wheel him up to his office and desk.

The road to recovery was long, grueling, uncertain and required several reconstructive surgeries and countless painful and exhausting physical therapy sessions. “That hellacious and darkest period of my life blessed me with empathy for my clients and their devastating injuries and excruciating pain, and their fear of future surgeries, of losing employment and of their life falling apart. It also taught me the power of faith, hope and perseverance,” he says.

Character Counts An example of how integrity and tenacity are necessary elements of success is found in one of Fielding’s recent legal victories for a motorcycle accident victim in Phoenix, Arizona. A motorist failed to yield and made a negligent left turn causing damages requiring multiple ankle surgeries for his client. The case was disputed from the start with Fielding first facing in-house counsel and then three separate defense firms in conservative Maricopa County. In December 2019, the case was settled at mediation for a confidential, excess policy limits, seven-figure amount.

Not all cases are so dramatic, but they do reflect positive client response to Fielding’s approach. A client wrote, “Right away I was impressed with Clark’s integrity and high-level, high-touch customer service. My vehicle will be repaired, and I will not be without use of a vehicle while repairs are being

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The Fielding Law Team

made. I couldn’t be more impressed with Clark’s legal knowledge, counsel, and most of all his CHARACTER.” Noting that hospitals and primary care physicians often “drop the ball” with traumatic injuries, the firm is a strong advocate for the proper diagnosis and treatment of their clients. Fielding says, “I enjoy the intersection of law and medicine and interacting with doctors. I also love the numbers aspect (he previously worked as a forensic accountant for an expert witness firm) and evaluating damages and negotiating. And our clients enjoy the benefits of that combination of interests and skills.”

Controlling His Destiny Fielding grew up wrestling in school and is a practitioner of Brazilian Jiu-Jitsu, disciplines that require extraordinary physical, mental and emotional control. He says that it is impossible to read about the Jiu-Jitsu technique, the moves, or even see the technique demonstrated in-person, and then be able to proficiently execute the technique. Mastering the skill requires drilling countless times on the mats and then incorporating the technique into live training or grappling. “There is a saying that ‘Black Belts are simply White Belts who didn’t quit.’ It’s the same in the law. We train. We learn. We keep on learning and we excel.”

The ability to fully control who works for his firm (and who doesn’t) and the professional level of service provided to his clients were key motivators in his decision to form his own firm.

“In my practice area as a plaintiff personal injury attorney and consumer advocate, opening my own shop seemed to be the natural progression.”

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Fielding is also a long-time practitioner of Bikram Yoga, which in many ways reflects the flexible nature of his management style. Fielding manages a horizontal business structure. “I’m actively in the trenches shoulder-to-shoulder with my people.

My management style is the servant-leader. It’s not me sitting on top of some vertical organizational structure where I’m a stern taskmaster barking orders or at the other extreme, the absentee boss. I am involved in all of the cases in my firm.”

Getting the Right Team “On the Bus” Finding, hiring, training and maintaining the top professionals is an ongoing goal. Fielding Law offices are staffed with selfstarters—people who can think outside the box, who are creative and ambitious. Fielding uses the “on the bus” concept of how he manages the growth of the firm. As Jim Collins in Good to Great teaches, igniting the transformation of getting from here to there is not to focus on the destination, but to first get the right people “on the bus” (and keep the wrong people off) and then move toward the destination.

Fielding believes that the right people don’t need to be tightly managed or overly motivated. They will be self-motivated by the inner drive to produce the best results and to be part of creating something great. His earlier experiences in what he calls the “military taskmaster” and “pressure cooker” and “do as I say, not as I do” business environments are counter-productive.

As an attorney / manager, Fielding sees to it that his team gets the broadest experience possible. He does not want his people to limit their experience to a single task. They are continually

© Rachel Thurston Photography / www.rachelthurston.com

challenged to use more of and develop their individual, natural aptitudes and talents.

“We take care of our team members and work hard to create and foster a positive and vibrant and collaborative working environment and develop (educate and train) them and challenge them so they are fulfilled and happy. The goal is for them to become the best version of themselves and to be patient and empathetic when interacting with our clients, healthcare providers, insurance companies, and defense attorneys and the courts,” he says.

Out-of-the-box thinking led Fielding to create a Quarterly Book Club for members of his team and friends of the firm. He has also established a Spanish Department specifically for members of the Hispanic community who do not speak English.

“If we can’t take care of our own team members, how can we and they be expected to take care of our clients? One of the reasons our offices are such a positive environment is because I find top professionals, give them the support and tools and resources, and then pretty much get out of their way. I am proud of the veteran team that I have assembled, they are the best in the business,” Fielding says.

Works Well With Others Approximately 25 percent of the firm’s cases are referrals rom other attorneys. “I believe wholeheartedly in collaboration and enjoy working with other attorneys and law firms. I am humble enough to realize when I need to associate with more knowledgeable and experienced counsel.”

Fielding says he plans to pay out an impressive amount in referral fees over the next five years.

“I believe the best referrals come from satisfied clients,” he says.

One of those clients agrees wholeheartedly. “Clark from the start took a human approach to my case. A drunk driver hit me on the freeway.

The moment m y family called him, his eam took matters into t heir own hands. His team was always calling and answering my family’s questions since I was in the hospital for weeks. Once I was out, they had all the patience to hear me out. My case took about two years to close.

Nevertheless, they always gave me understanding. It was for my best interest. It surely was. During this time period my very close friend also had an accident that caused him to have a personal injury. I made sure to get him connected to this powerful lawyer, Mr. Clark Fielding.”

Sensei Paulo Guillobel and Clark and his daughters Violet and Dahlia “Dolly”, at Guillobel Brazilian Jiu-Jitsu San Clemente Academy, San Clemente, CA, January 25, 2020

© Natalie Fielding Gerstner Photography / www.nataliegerstner.com

Work Hard, Serve Hard, Play Hard Fielding believes in the motto: work hard, serve hard, play hard and applies that to his life. When Fielding has time to read for pleasure, he reads biographies. Recently a family legend was corroborated after doing some research. Moranda is the firm’s Creative Director and Director of Client Relations, and she has a fascinating connection to history and the law. Her maiden name is Goings and she is a direct descendant of Melissa Goings, who killed her abusive husband in self-defense and was accused of murder. An attorney by the name of Abraham Lincoln helped Goings escape from the courthouse so that she could move on and live a happy and productive life. Lincoln later said, “I did not run her off. She wanted to know where she could get a good drink of water, and I told her there was mighty good water in Tennessee.” The extraordinary situation is even mentioned in Spielberg’s film Lincoln.

“Moranda and I have two beautiful daughters, Violet Bryn (9) and Dahlia “Dolly” Blair (6) and a handsome son, Rio Zephyr (1). Violet and

Fielding Family, Thanksgiving Day 2019, Park City, Utah Attorney Journals Orange County | Volume 169, 2020

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Eulogy Virtues Fielding is representing the widow of Police Officer Nathan Martin who was tragically killed on his motorcycle. While at the funeral service in February to honor Martin’s legacy and exceptional family life and life of public service, Fielding reflected on his own life choices and career and the forces that keep him motivated. Referencing a thought from T he Road to Character by David Brooks, Fielding said, “I’ve been thinking deeply about the difference between what people write in their resumes compared to what others say about them in their eulogies. Those virtues on the resume reflect marketable skills that enhance the applicant’s viability and likelihood of success in business. The things people say in eulogies reflect the core of that person’s being—his or her ethics, honesty, bravery, trustworthiness, quality of relationships formed, and such. Ultimately, it is the eulogy virtues that have the truest meaning for me.”

Fielding Law, APC Orange County, California office: The Boardwalk, 18575 Jamboree Road, Suite 600 Irvine, CA 92612 Maricopa County, Arizona office: The Watermark, 410 North Scottsdale Road, Floor 10 Tempe, AZ 85281 fieldinglawfirm.com Instagram @fieldinglawfirm 20

Attorney Journals Orange County | Volume 169, 2020

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EXPERIENCE

Dahlia are fellow Jiu-Jitsu practitioners,” Fielding says.

He is a certified scuba diver who also enjoys snorkeling. Other passions include snowboarding, traveling, and reading biographies.

Fielding is active in his community. He is a former Treasurer and Member of the Executive Committee of San Clemente Little League; managed teams for San Clemente Little League for the past four years and is an assistant coach for this spring season. He managed both daughters’ San Clemente Little League baseball teams.

He serves as his Church congregation’s Clerk as a member of the Bishopric, responsible for, among other things, finances, the budget, processing donations, welfare payments for rent, utilities, food for individuals in need, the records, material orders, reports and statistics.

He served a two-year Church Mission to Rio de Janeiro and Minas Gerais, Brazil. He speaks Portuguese and has a television satellite to pick-up one Brazilian TV station to keep up with the language.

» EDUCATION • Brigham Young University – Marriott School of Business, Bachelor of Science in Management with a Finance Emphasis • Brigham Young University – Hawaii • Congressional Intern for the U.S. House of Representatives for Congressman Jeff Flake of Arizona (former U.S. Senator) in Washington, D.C. • Vanderbilt University Law School in Venice, Italy – International and Comparative Law • Arizona State University – Sandra Day O’Connor College of Law, Juris Doctor | Pedrick Scholar | Pro Bono Distinction • Judicial Extern, Maricopa County Superior Court – The Honorable Timothy J. Ryan • Judicial Extern, United States District Court – The Honorable James A. Teilborg

» AWARDS AND RECOGNITION • Super Lawyers Southern California Rising Star (2018, 2019, 2020) • 10 Best Attorneys – Exceptional and Outstanding Client Service – California, American Institute of Personal Injury Attorneys (2019, 2020) • Elite Lawyer (2020) • Civil Plaintiff – Top 40 Under 40, The National Trial Lawyers (2015 – 2020) • Avvo 10.0 rating since 2015 • Avvo Clients’ Choice Award (2015, 2016, 2017, 2018, 2019) • Certificate of Recognition with Thanks, City of Irvine, California (2019) • 10 Best Law Firms – Exceptional and Outstanding Client Service – California, American Institute of Personal Injury Attorneys (2019, 2020)

» LICENSES • The State Bar of California • The State Bar of Arizona

» ASSOCIATIONS • • • • • • • • • •

Founding 50 of Justice HQ, Inc., Member The Million Dollar Advocates Forum, Member The National Association of Distinguished Counsel, Fellow The National Trial Lawyers, Member American Association for Justice, Member Consumer Attorneys of California, Member Consumer Attorneys of Los Angeles, Member Orange County Bar Association, Member Orange County Trial Lawyers Association, Member Boy Scouts of America, Eagle Scout rank

» SERVICE • Two-year Church Mission to Rio de Janeiro and Minas Gerais, Brazil • Former Treasurer – Member of Executive Committee – Board Member and Team Manager of San Clemente Little League

» OTHER LANGUAGES • Speaks Portuguese Clark’s greatest joy is his family; he is a loving and proud husband and father of two beautiful girls and a handsome boy.

Orange County’s Premier

REAL ESTATE, BUSINESS, TRUST & ESTATE PLANNING ATTORNEYS

5.0

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200 North Tustin Avenue, Suite 110 | Santa Ana, California 92705 | 714-941-8122 | www.Burris-Law.net

An Overlooked List That Holds Hidden Profit Opportunities

by Tom Trush

I just stole something for you …

As you know, my job gives me behind-the-scenes insight into how some of the world’s greatest marketers handle “selling” problems in different ways. It’s a great education that never quits.

And recently I saw a tremendous client reactivation idea ... tremendous because it works like magic and is rarely used in marketing efforts.

Credit goes to Ferd Nauheim. I recently bought his book, Salesman’s Complete Model Letter Handbook, in which he shares many overlooked opportunities for communicating with clients and prospects. The book is especially helpful for those times when you want to contact someone but can’t figure out what to say without sounding like a pushy salesman.

Anyway, I stole one of Nauheim’s letters and reworked it for you. Don’t worry, though, I’m certain he doesn’t mind.

If fact, he states at the beginning of his book, “In many cases, salesmen and sales managers will be able to use letters in this book with little or no change. But even where a complete change is required to fit a particular set of circumstances, the model letters point the way.”

In one section, Nauheim shares letters of appreciation to customers. The one I revised for you is designed to reactivate lost clients or those who haven’t bought from you in a long time.

Use the following letter (right) as a model. Simply copy the text to your letterhead, make adjustments to fit your law firm, and then mail—with a stamp on a handaddressed envelope—the letters to your lost clients.

(Watch your mailbox. You may even see one of these letters from me.)

Sure, this letter isn’t perfect. You could do things differently. And you may even think the text won’t work for you.

But that’s not the point.

The fact to remember is you likely have a list of lost clients that hold hidden profit opportunities.

Contact these people now.

Please feel free to share this message with the people in your network. n

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Dear (enter client’s first name), It’s been some time since I expressed my heart

felt thanks.

While looking at my calendar earlier this week, I thought about the thank-you notes I should send to two new clients.

Then it suddenly occurred to me that, while saying thanks to folks who just bought from me may be good business, I never took the time to express my sincere appreciatio n to you for your loyalty over the years.

I’m concerned that something I did caused you to stay away for so long. If so, please contact me at (ente r phone number) or (enter email address) so I can correct the problem.

Then again, maybe life’s events just got in

the way.

Whatever the case, I suppose I’m no more guilt y than most people. We are so concerned with day-to-day business needs that we seldom take time out to show the great gratitude we feel for our most important business friends ... those who keep coming back and who thoughtfully send other s to us.

I appreciate your continuing support.

Gratefully, (enter your name/signature) P.S. (Use this space to share an appealing offer and/or provide a strong reason to respond).

Tom Trush is a Phoenix, Ariz.-based direct-response copywriter who helps entrepreneurs and executives craft lead-generating marketing materials. Pick up his latest book, Escape the Expected: The Secret Psychology of Selling to Today’s Skeptical Consumers, for free (just cover shipping) at www.writewaysolutions.com/blog/free-book-offer/.

Attorney Journals Orange County | Volume 169, 2020

Turn Negatives into Positives Using the Contrast Principle

by Trey Ryder

N

o lawyer has all positive qualities. When prospects think about hiring your services, they see both strengths and weaknesses.

Positive qualities that distinguish you from other lawyers are your competitive advantages. Negative qualities are your competitive disadvantages.

Naturally, you hope prospects conclude that your positives outweigh your negatives. And to help make your case, you try to neutralize negatives, so prospects think they are not important. Still, you can’t be sure what impact those negatives will have on your overall presentation.

Here is your marketing challenge: How do you take negative aspects of your services and change them into positives so the negatives don’t cause your prospect to hire another lawyer?

In his book, Influence (Morrow, 1984), psychology professor Robert Cialdini discusses principles that persuade people at the subconscious level. One of these, the contrast principle, allows you to change how prospects perceive facts.

The contrast principle says: You can change how a person perceives something by changing the event that precedes it.

Since prospects’ perceptions are their reality, when you change their perception, you change what they believe is true.

Here is how the contrast principle works. (Yes, you can try this at home): Prepare three buckets of water. One with cold water. One with hot water. And one with water at room temperature. Place one hand in the cold water and your other hand in the hot water. Then at the same time, place both hands into the room temperature water.

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Your surprise illustrates the contrast principle. The hand that was first in cold water now feels like it is in hot water. And the hand that was in hot water now feels like it is in cold water.

Yet, you can plainly see both hands are in the same water.

How each hand perceives the room-temperature water depends on the event that preceded it, namely whether your hand was first placed into water that was cold or hot.

Another example: A man goes into a fashionable clothing store and tells the clerk he wants to buy a three-piece suit and a sweater. If you were the clerk, which would you show him first?

The contrast principle says always sell the more costly item first. Because after the man buys the suit, the cost of a sweater —even an expensive sweater—will seem small by comparison.

If the clerk first showed the man a $500 sweater, the man might hesitate because that sounds expensive for a sweater. But if the man had just purchased a $2000 custom-tailored suit, $500 for a sweater does not seem out of line.

How the man perceives the price of the sweater changes depending on whether it is the first item he considers, or whether he first buys the expensive suit.

Now, to your law practice: Identify something you believe prospects perceive negatively about you or your services. To make it easy, let’s use your fee. If you want your prospect to perceive your fee as fair and reasonable, before you state your fee, quote something much higher. Then when your prospect hears your fee, he will perceive it as lower than he would have had you not quoted the higher number.

EXAMPLE #1: Wrong: “Mr. Jones, I can prepare your estate plan for $12,000.” Mr. Jones, in shock, thinks, “$12,000! That’s more than I paid for my first house!” (This is an old example, when estate taxes were a bigger problem than they are today.)

Right: “Mr. Jones, this estate plan will save your family over $200,000 in federal estate taxes. I can prepare this estate plan for you and your family for just $12,000.” Now Mr. Jones thinks, “Not much at all compared with the amount of taxes my family will save. What a bargain!”

EXAMPLE #2: Wrong: “Ms. Smith, I can represent you in your injury claim and my fee will be one third of the recovery.” Ms. Smith thinks, “This lawyer gets one third of my money!”

Right: “Ms. Smith, to handle an injury claim like yours, some lawyers charge as much as 40 percent of the recovery, and even 50 percent if the case goes to trial. But, Ms. Smith, I’ll be pleased to represent you—and aggressively protect your interests—for just one third of the amount we collect.” Ms. Smith thinks, “This lawyer is much more generous than those other greedy lawyers.”

The contrast principle holds true for any information you need to disclose, whether it is your fee, turnaround time for projects,

even the number of years your client might spend in prison.

“Mr. Criminal, most people who commit armed robbery get 10 to 15 years in state prison. The district attorney has offered us a plea bargain that will make you eligible for parole in just five years. I recommend that you accept this plea bargain.”

Five years sounds short after you quote 10 to 15 years. But five years would have sounded like a long time if you had not quoted the other numbers first.

“Ms. Client, under normal circumstances I would need three to four weeks to complete this project. But I understand this matter is a priority for you, so I promise to complete it and have it on your desk within ten days.” By itself, ten days might seem like a long time, but not when first compared with three to four weeks.

When you reach the point in your discussion where you must disclose a fact that might be perceived as negative, describe something more extreme in the preceding sentence. Then your prospect will perceive the information you disclose as more reasonable. In fact, you might turn a competitive disadvantage into an advantage based simply on how you present it. n Trey Ryder shares his marketing method with lawyers through a wide range of publications. In addition, he writes and publishes his free e-zine, The Ryder Method™ of Education-Based Marketing. And he maintains the Lawyer Marketing Advisor at www.treyryder.com. He can be reached at: trey@treyryder.com

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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://californiacasesummaries.mykajabi.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 Evidence Mathews v. Becerra (2019) _ Cal.5th _ , 2019 WL 7176898: The California Supreme Court reversed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiffs’ complaint alleging that the amended and expanded definition of the Child Abuse and Neglect Reporting Act’s (CANRA; Stats. 1987, ch. 1459.) term “sexual exploitation”, approved in Assembly Bill 1775, violated the plaintiffs’ patients right to privacy under the state and federal Constitutions. The California Supreme Court held that plaintiffs had asserted a cognizable privacy interest under the California Constitution and their complaint survives demurrer. This holding does not mean the reporting requirement is unconstitutional. It means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward. The case was remanded for further proceedings to determine whether the statute’s purpose of protecting children is actually advanced by mandatory reporting of psychotherapy patients who admit to possessing or viewing child pornography. (December 26, 2019.)

Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.

The Supreme Court did not decide whether an heir who was never a trust beneficiary has standing under the Probate Code to challenge the trust. (January 23, 2020.)

CALIFORNIA COURTS OF APPEAL Appeals PG&E “San Bruno Fire” Cases (2019) _ Cal.App.5th _ , 2019 WL 6888248: The Court of Appeal dismissed an appeal challenging the trial court’s allocation of attorney fees and costs after the settlement of consolidated San Bruno Fire Derivative Cases against PG&E. The settlement agreement provided that settling plaintiffs’ counsel would be paid in the aggregate $25 million in attorney fees and $500,000 in costs. The Court of Appeal dismissed the appeal because the operative settlement agreement unequivocally deemed the trial court’s allocation determination to be final and not subject to appellate review. (C.A. 1st, December 18, 2019.)

Probate

Arbitration

Barefoot v. Jennings (2020) _ Cal.5th _ , 2020 WL 372523: The California Supreme Court reversed the Court of Appeal decision that had interpreted Probate Code section 17200(a) to only allow a currently named beneficiary to file a petition challenging the validity of disinheriting amendments in probate court on grounds such as incompetence, undue influence, or fraud. The California Supreme Court ruled that the Probate

Fabian v. Renovate America, Inc. (2019) _ Cal.App.5th _ , 2019 WL 6522978: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration. The trial court properly denied the petition.

Defendant offered no evidence about the process used to verify plaintiff’s electronic signature via DocuSign, including who sent plaintiff the contract, how the contract was sent to her, how plaintiff’s electronic signature was placed on

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the contract, who received the signed contract, how the signed contract was returned to defendant, and how plaintiff’s identification was verified as the person who actually signed the contract. Defendant’s DocuSign authentication argument was therefore unsupported and unpersuasive. Moreover, by not providing any specific details about the circumstances surrounding the contract’s execution, defendant’s declaration offered little more than a bare statement that plaintiff “entered into” the contract without offering any facts to support that assertion. (C.A. 4th, filed November 19, 2019, published December 4, 2019.)

Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2020) _ Cal.App.5th _ , 2019 WL 7790891: The Court of Appeal reversed the trial court’s order denying a petition to compel arbitration. Plaintiff’s insurance policy was issued to Future Farmers of America for an event it was holding inside the Fresno Convention Center. Future Farmers licensed the use of the convention center from defendant, its property manager. As part of the license, Future Farmers agreed to obtain coverage for itself and to name defendant as an additional insured. The policy provided coverage for “managers, landlords, or lessors of premises” as well as for any organization “as required by contract” and also contained an arbitration clause for coverage disputes. The Court of Appeal reversed the trial court and held defendant could be compelled to arbitrate. Defendant was an intended third party beneficiary to the contract. Defendant was estopped from claiming it was not subject to arbitration because it had previously tendered a request for defense and indemnity to plaintiff. Finally, the arbitration agreement encompassed the dispute at issue. (C.A. 3rd, filed December 31, 2019, published January 28, 2020.)

Attorney Fees Hance v. Super Store Industries (2020) _ Cal.App.5th _ , 2020 WL 373070: The Court of Appeal reversed the trial court’s order awarding class action attorney fees and dividing them in accordance with an alleged fee division agreement between the attorneys. The trial court abused its discretion by enforcing the fee division agreement because the undisputed facts showed a clear violation of former rule 3-410, requiring disclosure to potential clients that one of the attorneys had no malpractice insurance, and this rendered the fee agreement unenforceable. The matter was remanded for the trial court to determine whether the uninsured lawyer should recover compensation for his attorney services on a quantum meruit basis, and, if so, how much he should recover. (C.A. 5th, January 23, 2020.)

Civil Code Hensel Phelps Construction Co. v. Super. Ct. (2020) _ Cal. App.5th _ , 2020 WL 370445: The Court of Appeal denied a writ of mandate seeking an order directing the trial court to vacate its order denying petitioner’s motion for summary

judgment in an underlying construction defect lawsuit.

Petitioner argued that the plaintiff’s construction defect claim was barred by the 10-year statute of limitations in Civil Code section 941. Petitioner was the general contractor on a project. Petitioner argued that substantial completion under the statute had the same meaning as substantial completion in its construction contract with the developer. The construction defect plaintiff, however, was not a party to that contract. The Court of Appeal ruled that petitioner offered no authority for its novel proposition that certain parties may, by contract, conclusively establish the date when a limitations period begins to run on another party’s cause of action. Moreover, petitioner did not show that the statute should be interpreted to adopt the provisions of the construction contract. (C.A. 4th, January 22, 2020.)

Civil Procedure Dalessandro v. Mitchell (2020) _ Cal.App.5th _ , 2019 WL 6872301: The Court of Appeal affirmed the trial court’s order denying judgment creditor’s motion to compel production of documents and imposing $3,456.70 in sanctions against judgment creditor’s attorney for discovery abuses. The Court of Appeal ruled the post-judgment order was not an appealable order but treated the appeal as a writ petition. The trial court properly denied the motion to compel, finding service of the demand to be ineffective because there was no postage affixed to the envelope. The trial court properly issued sanctions for abuse of the Discovery Act (Code of Civil Procedure, section 2023.010 et seq.). For such sanctions, there was no requirement for a party to meet and confer with the opposing party to alert him to defects in his discovery requests, particularly when they were not validly served. Nor was the trial court required to make a finding of a lack of substantial justification. Finally, a separate motion was not required, nor was a separate hearing on discovery sanctions. (C.A. 2nd, filed December 17, 2019, published January 3, 2020.)

Torts Loeb v. County of San Diego (2019) _ Cal.App.5th _ , 2019 WL 6838736: The Court of Appeal affirmed the trial court’s order granting a nonsuit in defendant’s favor on the issue of trail immunity (Government Code, section 831.4.). Plaintiff sued for personal injuries she allegedly sustained when she tripped on an uneven concrete pathway in a park. The trial court had previously denied motions for summary judgment on the basis that disputed facts existed regarding whether the pathway was used for recreational purposes. However, when plaintiff conceded during argument over the proposed special verdict forms that the pathway was used, at least in part, for recreational purposes, the trial court properly granted the nonsuit. (C.A. 4th, filed November 19, 2019, published December 16, 2019.) n

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7 Things You Must Know Before Starting Your Own Firm

by Valerie McConnell

I

was in my seventh year of practice and suffering from a classic case of burnout when I convinced myself that I would be happier at a small firm. I daydreamed about setting the litigation strategy for all of my cases without worrying about my decisions being overruled by the BigLaw bureaucracy. So, I paid off my law school debt and left one of the largest law firms in the world to join a law firm that employed exactly two people. But I soon learned that the world of small firms and solo practitioners was not what I thought it would be.

I used my own hard-learned lessons from small firm life, as well as the advice I received from colleagues who started their own firms, to compile a list of do’s and don’ts for anyone who is thinking about going solo.

 Don’t underestimate the value of legal support personnel Do you know how to file documents with the court? Or how to format your legal documents exactly according to your court’s local rules? Or how to bates-stamp documents or redact confidential material? If your answer is “no” or “I hate that stuff,” then you may want to think twice about starting your own firm.

After I left BigLaw (and an amazing team of legal support personnel), I quickly discovered that proof-reading, citechecking, formatting, and filing legal briefs on PACER or with your local state court is a ton of work. It can take hours to finalize and file a simple motion. Don’t get me started 28

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on how long it takes to file a brief with copious exhibits or text that needs to be redacted or filed under seal. And going through discovery (collecting documents, bates-stamping, redacting, etc.) without a dedicated legal support team is, frankly, terrible.

So, if you want to go solo, be prepared to do all of those tasks entirely by yourself—or hire a fantastic administrative assistant or paralegal to help you.

 Be prepared to work hard Big law firms have armies of people that handle all aspects of a successful practice: people who promote the firm to bring in business, people in charge of billing and collections so that the firm actually gets paid, people in charge of office management and IT infrastructure so that the firm has working computers, Internet, and everything else needed to practice law in the 21st century, legal support personnel to handle time-consuming administrative tasks (see No. 1 above) and, of course, the attorneys doing the actual billable work. When you hang out a shingle, you have one person to do all of that.

That observation may sound obvious, but when I joined a small firm, I was floored by how much time we spent on tasks besides practicing law. And since practicing law is already time-consuming, adding business development and generating invoices creates a very long to-do list.

 Don’t get burned out While you will need to work hard to succeed as a solo practitioner or small firm attorney, you still need to eat, sleep, and stay sane. But when you work for yourself, work can easily take over your life. There is no one to cover for you when you are sick, no office policy on holidays or vacation days, and no clear separation between your work life and your home life.

Also, when you work for yourself, there is a strong financial incentive to work all the time, as every dollar that the firm gets is money in your pocket. Under those circumstances, it can be easy to fall into a pattern where you are working all the time. However, over-extending and exhausting yourself is a recipe for burnout–and also increases the risk of mistakes and possible malpractice. Be sure to take care of yourself so that you stay sharp and motivated.

 Get a mentor One of the best aspects of working in a law firm is that you have colleagues that you can speak to about problems in your cases. You can grab lunch with a fellow associate and bounce ideas off of them. You can pick the brain of a partner at your firm and hear their thoughts on a particular judge or case strategy. Your firm also provides a built-in audience that you can use to moot an important hearing. All of that goes away when you start your own practice.

You need a replacement for that support structure, which is why you need a mentor. Find an attorney that you can talk to on a regular basis about any thorny issues in your practice. The best mentor has more experience than you, but just talking to another attorney can help provide the clarity and perspective you need to figure out a solution to a problem.

 Don’t be an island As a natural introvert, I hate to say this, but you cannot practice law completely by yourself. Even if you have a solo practice, you need to network with other attorneys. Networking leads to referrals, which leads to clients and income. Many attorneys find friendships (and referrals) by going to conferences or joining a local bar association. Or if you (like me) have trouble making small talk at a cocktail party full of attorneys, get involved in pro bono work. I made several friends and received a number of referrals by volunteering alongside other attorneys for a cause I cared about.

 Your credibility is everything For better or worse, having the power and prestige of a big firm behind you can help you look more credible in the courtroom. But when you hang out a shingle or work for a small firm, your credibility rests entirely on the quality of your legal representation. You may find (as I did) that your legal arguments are subject to greater scrutiny and skepticism by the courts and opposing counsel when you strike out on your own. Without a big law firm brand behind you, you need to take great care to build and maintain your credibility. A judge or opposing counsel might be willing to give an attorney from a top firm the benefit of the doubt, but a small firm attorney rarely gets that benefit. If you are thinking about rushing through your legal research or filing a less-than-stellar brief with the court, think again. Although you may find that you are pressed for time and resources (see above), you need to triple-check your briefs for miscited cases, flawed arguments, and other landmines. Once your credibility is lost with a judge, it is almost impossible to gain back.

 Don’t buy things you don’t need Watching what you spend is sound life advice, but you need to be especially careful about money when you are starting your own firm. If no new clients walk through the door, or if a case settles for far less than expected, or if a client simply refuses to pay you, you don’t want to be unable to pay your rent.

To protect yourself against the lean times, make sure that you are only buying what you actually need to practice law. For example, to save on rent, consider an inexpensive office-sharing arrangement, or work from home and meet clients at their offices. And instead of shelling out thousands of dollars a year for a Westlaw or Lexis subscription, take advantage of free and affordable legal resources. One great list of those resources can be found here: casetext.com/lexiswestlaw-guide n Valerie McConnell is a litigation attorney with experience in a wide range of practice areas, focusing in particular on intellectual property issues and is licensed in California and Missouri. Learn more by visiting www.casetext.com.

Attorney Journals Orange County | Volume 169, 2020

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