Attorney Journal, Orange County, Volume 122

ORANGE COUNTY

Volume 122, 2016 • $6.95

How to Move Forward with Good Plans… Instead of Waiting for Perfection

Paula Black

Understanding and Preventing Mental Health Issues for Legal Professionals

James Eischen

Marketing for Lawyers and Writing for Relationships Using a Personal Approach

David Lorenzo

Defining “Must Do”

Mike O’Horo

A Lawyer’s Guide to Using Social Media for Business Development

Stephen Fairley

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre Demurring, Conferring and Amending—Everything Changed in 2016

Alena Shamos

Law Firm of the Month

Gomez Trial Attorneys, Costa Mesa Officially Arrive in Orange County

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.122

TABLE OF CONTENTS 6 Demurring, Conferring and Amending—Everything Changed in 2016

by Alena Shamos

8 Understanding and Preventing Mental Health Issues for Legal Professionals

by James Eischen

EXECUTIVE PUBLISHER Brian Topor

8

10 A Lawyer’s Guide to Using Social Media for Business Development

by Stephen Fairley

12 COMMUNITYnews

EDITOR Wendy Price

14 Marketing for Lawyers and Writing for Relationships Using a Personal Approach

CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson

by David Lorenzo

PHOTOGRAPHY Chris Griffiths

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden Ariel Dixon CONTRIBUTING EDITORIALISTS Alena Shamos Bob Denney James Eischen Stephen Fairley Paula Black Mike O’Horo David Lorenzo Monty McIntyre 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.

16

LAW FIRM OF THE MONTH

16 Gomez Trial Attorneys, Costa Mesa Officially Arrive in Orange County

by Jennifer Hadley

22 How to Move Forward with Good Plans… Instead of Waiting for Perfection

by Paula Black

24 Defining “Must Do”

by Mike O’Horo

26 McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre

22

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

COURT REPORTING ACCESS WHEREVER YOU GO Easily schedule a court reporter and access your deposition transcripts & exhibits using our mobile app.

DEPOSITION SERVICES •Certified Court Reporters •Court-Appointed Official Reporters •Certified Legal Interpreters •24/7, Last Minute Scheduling •Nationwide Deposition Coverage •Deposition Suites, Conference Centers •Realtime Depositions •Electronic Transcripts •Electronic Transcript CD •Litigation Support Software Integration •Complete Case Management

VIDEO SERVICES •Certified Legal Videographers •Video Conferencing •Video Deposition Streaming •Video Transcript Synchronization •Digital Deposition Streaming •Video Editing Tools ONLINE & MOBILE SERVICES •Online Deposition Scheduling •Online Document Repository •Jilio-Ryan Mobile App •Mobile Transcripts •Productivity Enhancing Transcript Tools

DOWNLOAD OUR FREE APP TODAY!

Contact us today for more about our newest time-saving deposition and litigation support services.

JILIO-RYAN COURT REPORTERS

W W W. J I L I O R YA N . C O M

800.454.1230

Demurring, Conferring and Amending— Everything Changed in 2016

by Alena Shamos Alena Shamos is a senior litigator at Lounsbery Ferguson Altona & Peak. Her civil litigation practice includes trial, real estate and business litigation, partition and quiet title actions, government tort liability, writ practice, appellate practice, constitutional challenges, unlawful detainer, municipal litigation, elections law, contract disputes, tort disputes, environmental litigation (CEQA and NEPA), inverse condemnation and construction defect litigation.

Ms. Shamos represents government entities, businesses and individuals. www.lfap.com

R

ules regarding challenges to complaints changed significantly in 2016, with the enactment of Code of Civil Procedure § 430.41, and the amendments to Code of Civil Procedure §§ 472 and 472a. . Before January 1, 2016, if a party objected to a complaint, cross-complaint or answer, they could file a demurrer and follow the regular motion process to ruling.

Now, a party planning to demur is faced with strict meet and confer requirements, which are geared to avoid the demurrer entirely. Both parties are required to participate in the meet and confer effort and observe new limits on the right to amend.

These changes are intended to limit the number of demurrers heard in California’s already overburdened courts, so judges will be taking compliance seriously.

New Rules to Live By The best approach is to call your opposing counsel or schedule an in-person meet and confer meeting before sending a letter.

Then you will know if you have to write a lengthy meet and confer letter, or simply document the terms of your agreement to resolve your objections to the pleading.

Act quickly to initiate the meet and confer process, and make sure to set limits on your opposition’s response time. Under the new rules, the meet and confer must be completed within five days of your deadline to file a responsive pleading, unless you obtain an extension (CCP § 430.41, subdiv. (a)(2)).

A thirty-day extension is available under CCP § 430.41 if meet and confer efforts take longer than expected by filing a declaration. The extension starts on the day the demurrer or 6 Attorney Journal Orange County | Volume 122, 2016

responsive pleading was originally due. Any further extensions require a court order based on a showing of good cause.

Take careful notes during the meet and confer process, as you need to describe these efforts in a declaration if you ultimately file a demurrer. Expect that any email, letter or fax you exchange with your opposition will end up in front of the judge, as an exhibit to an opposing declaration. As meet and confers are required before demurring to amended pleadings, take note whether the other side is amending in good faith or to delay and harass.

Keep in mind that if you ultimately file a demurrer and the court sustains your demurrer with leave to amend, you cannot file another demurrer on “any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version” of the pleading (CCP § 430.41, subdiv. (b).). The opposing side can no longer file an amendment after the due date for their opposition to your demurrer without a stipulation documenting your agreement (CCP §472, subdiv. (a).).

The 2016 laws also set a new three amendment limit for a complaint or cross-complaint, which limits the court’s ability to sustain a demurrer with leave to amend.

The court can only grant leave to amend, in excess of the three-amendment limit, if you can demonstrate the additional facts create a “reasonable possibility” the defect in the pleading can be corrected to state a cause of action (CCP §§ 430.41, subdiv. (e)(1) and 472a, subdiv. (c).). This rule also applies if you file an amended pleading by way of a stipulation. Include language in your stipulation that the amended pleading

contains additional facts that cure pleading defects or risk rejection of your amendment.

There are important restrictions to the application of the three-amendment limit. It only applies to amendments filed “in response to a demurrer and prior to the case being at issue” (CCP § 430.41, subdiv. (e)(1).). That means the limit does not apply: (a) before the other side files its first demurrer, and (b) after a case is deemed at issue, which occurs once every cause of action in your complaint, or crosscomplaint, is responded to by way of an answer (CCP § 430.41, subdivs. (e)(1) and (2).).

For example, the three-amendment limit in CCP § 430.41 does not apply to an amendment made without leave of court before the first demurrer is filed under CCP §472, subdiv. (a), or to a motion for leave to amend filed later in the case.

Courts have eagerly anticipated the enactment of these rules as a means to ease their burden. Your compliance, or lack thereof, can set the tone of your case. Make sure to review the rules carefully, or enlist the help of an experienced litigator when needed. n

Attorney Journal Orange County | Volume 122, 2016 7

Understanding and Preventing Mental Health Issues for Legal Professionals Tips, Anecdotes & Apps to Improve Coping Skills

by James Eischen

T

he legal profession is stressful, but mental health challenges impact our entire country. According to the National Alliance on Mental Illness (NAMI), 1 in 5 adults in America experience a mental illness in a given year.

While depression is the leading cause of disability worldwide, the National Institute of Mental Health revealed that 2.4 million American adults live with schizophrenia, 6.1 million live with bipolar disorder, 16 million live with depression and 42 million live with anxiety disorders. Those figures are unnerving. We cannot presume legal professionals are immune to this risk. We actually may face statistically greater risks.

Legal professionals are subject to unforgiving deadlines, heightened duties and high expectations. We connect with profound losses and financial stress, while expected to analyze and interpret reality (whether in disputes or transactions) in a strategic and logical fashion. We digest and retain massive data and analysis loads. At times, we’re counted on to make split-second decisions in court, or while negotiating, that cannot be easily undone. We engage in conflict and navigate uncertainties without guaranteed positive outcomes. With all these responsibilities, it’s no wonder legal professionals are susceptible, and not immune from, mental health problems.

According to the American Bar Association’s article, Mental Health Initiative Tool Kit for Student Bar Associations and Administrators, practicing lawyers exhibit clinical anxiety, 8 Attorney Journal Orange County | Volume 122, 2016

hostility and depression at rates that range from 8 to 15 times the general population. In addition, lawyers rank 5th in incidence of suicide and exhibit very high levels of substance abuse. We are not immune, we are very susceptible and people depend on us.

So what can legal professionals do to deal with professional distress? The good news is that there are resources available to both practicing lawyers and law students. For example, the State Bar of California offers its Lawyer Assistance Program (LAP) that helps lawyers and State Bar applicants who are struggling with stress, anxiety, depression, substance use or concerns about their career. Participation is confidential as mandated by California Business and Professions Code §6234. In addition, meditation has been encouraged.

According to Law Practice Management Advisor, lawyers who meditate have larger brains (if that is possible) and less depression. Meditation leads to an improved ability to deal with highly emotional or stressful events.

There are various coping mechanisms that work for each individual. For example, exercising, eating healthy, listening to music, reading, volunteering, creating a flexible work schedule and connecting with friends and family are just a few of my own personal coping mechanisms. As the legal profession deals with often conflicting versions of reality, we all must become familiar with “cognitive distortions” and work on recognizing them not only in others, but also ourselves. This could greatly

enhance attorney professionalism and courtesy. Perhaps that is the essence of our collective journey toward a judicial temperament. We all need to make that journey.

Outside of the traditional legal obligations of working toward judicial temperament, and charitable work, I have also discovered a less traditional resource: apps. There are a plethora of free and paid apps available for mobile phones and tablets. Here are seven to consider, and many, many more are available:

1. Moodnotes This app implements cognitive behavioral therapy (CBT) through simple daily questions that allow users to keep a log of their mood. My favorite aspect of this app is that if an individual logs negative moods, it takes them through a series of cognitive distortions and asks if perhaps they are getting their thoughts “caught” in a distortion. If so, it provides a brief curative reminder to help overcome the distortion.

2. Streaks This app allows users to select any behavior or habit they’re working on (journaling, exercise, etc.) and track on a daily basis if they accomplish the habit. This app is easy to use, not negative and very useful.

3. Mindfulness This is a simple meditation app that will deliver a gentle bell ring for 5, 10, 15, 20 or 30 minutes for when an individual wants to meditate. It delivers a “ping” when the user concludes the time selected, which can be helpful.

4. Gratitude This is a daily gratitude journal app, which allows users to electronically jot down things they’re grateful for and keep a digital log of those entries. It’s quick and easy to use.

5. MyFitnessPal This free app (sponsored by Under Armour, which also offers a paid version) lets users track their food intake and exercise on a daily basis, enter basic health data and establish a daily caloric intake goal with an eye toward either losing or maintaining a healthy weight. In addition, this app interacts with Health, the Apple health data tool kit. Users can use other apps to track exercise and have the data automatically loaded into MyFitnessPal to log calories burned.

6. Phraseology This is a good daily writing/diary system that offers some nice features for writing entries and is easier to use than the basic note-taking feature on most tablets.

7. WOOP This app was created by Gabriele Oettingen, the author of “Rethinking Positive Thinking.” The app is designed to help people create goals, ponder obstacles and then plan to succeed with a combination of positive thinking plus realistic assessment of necessary steps.

Another resource was recently reported in The Atlantic (A First Aid Class for Mental Health, February 12, 2016,

by Meagan Morris): “Since 2001, the National Council for Behavioral Health has attempted to combat that [mental illness] stigma with its Mental Health First Aid program, which teaches participants how to recognize when someone is going through a mental-health crisis, and how to help them get through it.” The training assessment algorithm is summarized with the acronym ALGEE: Assess risk of suicide/harm, Listen non-judgmentally, Give reassurance and information, Encourage appropriate professional help and Encourage self-help and other strategies.

It’s important to understand that no app, anecdotal truism or mental health acronym can replace mental health counseling and intervention when needed. Legal professionals should get the professional help they need without delay. In the absence of crisis, however, it remains crucial for legal professionals to find their identity and meaning outside of their careers. Be someone more than purely a legal professional—be a complete person with interests, friends and resources. Be yourself, get a life, find new challenges and keep learning. If you suspect you need more help than lifestyle diligence, get the assistance needed. After all, family, friends, clients and colleagues are depending on you. In the end, you are the product, the source of important guidance and representation. If you are not well, then your ability to help others is impaired. So to the extent possible, be well. Or as the wise psychologist in the movie Silver Linings Playbook recommended to the Bradley Cooper character struggling to overcome mental health challenges: You need a strategy. We all do. n James Eischen is a Partner at Higgs, Fletcher & Mack LLP with more than 29 years of experience as an attorney in California.

Eischen handles corporate, real estate and healthcare matters.

He received his Juris Doctor from the University of California at Davis School of Law in 1987. Eischen is involved in numerous professional organizations, including the San Diego County Bar Association Law & Medicine Section, Attorney-Client Relations Committee, American Academy of Family Physicians healthcare compliance educator, American Academy of Private Physicians corporate secretary and chair of the Legal Compliance Committee.

Attorney Journal Orange County | Volume 122, 2016 9

T

he sheer number of attorneys competing for business today, especially in consumer law, makes it virtually impossible to grow a law firm organically by word of mouth. You must be much more proactive and intentional about your business development efforts than just sitting back and letting your work speak for itself.

One of the best reasons for attorneys to use social media for business development is because of its reach and cost effectiveness.

But you have to have a system and a process in place to maximize the benefit from social media for business development. Here is a 5-step process we have used over the years that has resulted in generating hundreds of new leads every month, both for our company and our clients:

A Lawyer’s Guide to Using Social Media for Business Development

by Stephen Fairley Two-time international bestselling author, Stephen Fairley is CEO of The Rainmaker Institute, LLC, the nation’s largest law firm marketing company specializing in marketing and lead conversion for small to medium law firms. Over 10,000 attorneys nationwide have benefited from learning and implementing the proven Rainmaker Marketing System. Over the last 12 years, he has become a nationally recognized legal marketing expert and been named, “America’s Top Marketing Coach.”

He has spoken numerous times for over 35 of the nation’s largest state and local bar associations and has a large virtual footprint with his highly successful Rainmaker legal marketing blog and has over 150,000 followers on Facebook, Twitter and LinkedIn. For more information, please visit www.

TheRainmakerInstitute.com or call 888.588.5891.

10 Attorney Journal Orange County | Volume 122, 2016

1. Set up a targeted landing page. Your landing page is separate from—but can be connected to—your website. It should feature content that addresses the specific needs of your target market and have one compelling call-to-action that gets them to connect with you.

2. On the landing page, offer them something of value. Offer visitors a free special report on a topic of interest to them.

Again, it must address a specific need of your target market.

Remember, clients may not care about legal precedents, but they are very likely to care about how to save money during a divorce.

3. Drive traffic to your landing page by promoting it via your social media networks. You can announce your free special report on your Facebook fan page, post a Tweet or promote by including the link to your LinkedIn account. You can also hone in more directly on your target market through Facebook Ads, which you can run for just a few dollars a day.

4. Visitors to your landing page can only obtain your valuable information if they give you their contact information (name and email address) and by agreeing to opt into your database and be contacted by your law firm for further follow-up.

5. Use their contact information to follow up with them. When you connect with visitors to your landing page, you qualify them to see if they are a good prospect for you and then offer them a complimentary consultation, if that’s part of your business model.

At The Rainmaker Institute, we have successfully used this exact process with attorneys across the country for more than a decade, generating thousands of qualified leads for lawyers directly from social media. Attorneys we have worked with regularly receive 100250 new leads every month just from efforts online and via social media. Follow this process, and you can, too! n

COMMUNITY news n Bick Law Group is pleased to announce that Alan N. Bick, a pre-eminent environmental lawyer with more than 25 years of experience, has joined the firm as its new co-managing partner.

Mr. Bick joins the firm following his retirement from Gibson, Dunn & Crutcher LLP, where he was a partner in the ALAN N. BICK Orange County office. Mr. Bick practiced environmental law at Gibson Dunn & Crutcher for more than 25 years and cochaired the Environmental Practice Group.

Mr. Bick has extensive experience in cost recovery actions under CERCLA, RCRA, and the state equivalents; defense of agency enforcement actions; mass and toxic tort defense; natural resource damage actions; and CEQA, NEPA and ESA litigation. He also advises clients on environmental compliance issues and environmental audits, and provides legal advice on due diligence and allocation of risks in real estate and corporate transactions.

Mr. Bick graduated from Stanford Law School. He received his Bachelor of Arts degree in economics and government from Dartmouth College, where he graduated summa cum laude and Phi Beta Kappa. Between college and law school, Mr. Bick worked on Wall Street in investment banking. n Pamela Liosi and Eric Traut recently spoke at the Ventura County Trial Lawyers Association April 26th event on Expedited Jury Trials. Called the “Nuts and Bolts of California Expedited Jury Trials,” Traut and Liosi presented a 1-hour MCLE addressing the statutory requirements of expedited jury PAMELA LIOSI trials. Pamela Liosi is a plaintiff’s attorney with 20 years’ experience handling personal injury, wrongful death, assault, sexual assault, dog attacks and slip-and-fall cases. With a track record of legal leadership, Liosi served two terms as President of the Italian American Bar Association of Orange County – Lex Romana in 2013 and 2014 and maintains memberships and board positions with the California State Bar Association, Italian Bar Association of Orange County – Lex Romana, the Orange County Trial Lawyers Association, the Banyard Inn of Court, and many others.

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

Email it to PR@AttorneyJournal.us 12 Attorney Journal Orange County | Volume 122, 2016

n Newmeyer & Dillion is pleased to announce that April E. Frisby has joined the firm as of-counsel in the Newport Beach office.

April has over fifteen years of corporate and securities experience representing public and private companies and other business professions in a wide range of business matters including entity APRIL E. FRISBY formation and compliance, contracts, private placements and M&A. She also is experienced in estate planning and administration.

April has served as an adjunct law professor at both Whittier Law School and Western State College of Law teaching courses such as Transactional Legal Writing, Contract Drafting, Securities Regulation and Wills & Trusts. April is a contributing writer to the Continuing Education of the Bar (CEB) blog and is currently authoring a chapter on conversions of corporations for its corporate series. n The Daily Journal and California Lawyer magazine recently honored Snell & Wilmer attorney Lindsey Martínez, who helped secure a groundbreaking victory for transgender women seeking asylum and legal protection in the United States.

In March 2015, Martínez argued the case before the United LINDSEY MARTÍNEZ States Court of Appeals for the Ninth Circuit seeking to overturn an intermediate immigration court’s decision to refuse her client’s claim for legal status in the United States based upon alleged past and future persecution and torture. The case was one of three brought by the Public Law Center, along with pro bono counsel from three separate law firms, on behalf of transgender asylum seekers and all three cases were argued on the same day before the same Ninth Circuit judicial panel.

Decisions were rendered on the same day for all three cases, and the published opinion in Avendano-Hernandez v. Lynch is far reaching and precedent setting.

At Snell & Wilmer, Martínez concentrates her practice on business, franchise, intellectual property and construction litigation in state and federal court. She is also active in pro bono work assisting indigent non-immigrant victims of crime.

Martínez received the California State Bar’s President’s Pro Bono Service Award in the recently admitted category in 2014 and the Wiley W. Manual Certificate for Pro Bono Legal Service from 2012-2015.

COMMUNITY news n Maria Z. Stearns, an Employment Partner at Rutan & Tucker LLP, has been selected as President of the Harvard Law School Women’s Alliance (HLSWA), a global organization for women alumnae of Harvard Law School which provides a forum for discussion, networking, and mentorship. She has been President of the group’s Southern MARIA Z. STEARNS California chapter since its inception 5 years ago.

“This is an exciting opportunity for me to lead a group that is dedicated to building a strong global network of Harvard Law School alumnae,” says Stearns, who graduated from Harvard Law in 2002.

Stearns is active in various professional associations, including serving as a Board Member of the Association of Business Trial Lawyers, Orange County Chapter; committee member of the Orange County Bar Association; and legal update speaker for the Association of Corporate Counsel and the National Human Resources Association. She has been listed as one of the Daily Journal’s Top 100 Women lawyers in California each year since 2014 and a Super Lawyer since 2014. For 2016, Stearns was one of five employment attorneys selected to Law360’s national list of top attorneys under 40.

SOUTHERN CALIFORNIA’S LEADERS IN… • ESI Processing & Hosting • Data Acquisition & Forensics • Managed Document Review • Paper-based Discovery Services • Court Reporting With offices in LA Downtown, LA Century City, Irvine and San Diego DTIGlobal.com

FREE MCLE SEMINARS! Call us for information to schedule a complimentary in-person or webinar MCLE seminar on a variety of electronic discovery topics.

16842 Von Karman Avenue, STE 375, Irvine, CA 92606 Office: (949) 622-0650 Attorney Journal Orange County | Volume 122, 2016 13

MARKETING FOR LAWYERS AND WRITING FOR RELATIONSHIPS USING A PERSONAL APPROACH

by David V. Lorenzo

When it comes to marketing for lawyers, building a relationship with your prospective client is critical. Before a client will trust you, they must feel as though they know you and like you. This is where regular writing can be a big help.

By regular writing, I mean using a blog, a newsletter or a weekly email to keep up communication with your base of clients and prospective clients. Writing and sharing these articles with some frequency will allow your readers to gain an insight into your mindset. It allows them to project themselves into your world and they can actually develop a relationship with you through your writing.

14  Attorney Journal Orange County | Volume 122, 2016

YOU WRITE FOR TWO AUDIENCES: CLIENTS AND REFERRAL SOURCES When I introduce this as an important component of marketing for lawyers, I always receive some resistance. This comes from criminal lawyers, immigration lawyers, personal injury lawyers and family lawyers. They tell me that people will not even visit their website until they have a need for their services. While this may be (partially) true, when they do visit your website, they will read EVERYTHING that is up there. If the information is only about you and your law firm, they will not have a full understanding of how you can help them. It is far better to have them read an ongoing narrative of your thoughts than to read a canned bio.

Referral sources will also regularly read everything you write.

It is critically important that your referral sources know you,

like you and trust you. If you can keep them interested in what you have to say, on a daily, weekly or monthly basis, you will be amazed at the business that comes your way. Think about the member of the clergy who wants to refer immigration cases to you or the financial planner who needs to refer a divorce attorney to a client. If they want to send this referral to you, how will they gain any insight into who you are and your philosophy?

HOW TO WRITE When attorneys start writing on a regular basis, they complain about the amount of time it takes. It does take time to organize your thoughts and put them into a coherent format for print or Internet consumption. But it is not like writing an academic research paper.

You are writing to develop a relationship. Nobody is grading you. While including facts and figures is good, sometimes people are more interested in what you think and how you feel about the topic. That is how relationships are developed.

You do not build a relationship in a sterile environment with clinical information. It is messy and emotional. That’s life and that’s how you should write.

There are four elements that should be included in an article you are writing for the purpose of building a relationship. These elements are summarized by using the acronym.

P.O.K.E. That stands for Personality, Opinion, Knowledge and Entertainment. Those are the four things readers are looking for when they read your writing. Below are some ways to incorporate each of these elements into your writing style.

PERSONALITY Each of us has a distinct “voice” when we write. Legal writing tends to dull that voice. You need to find it and put in on display in your marketing. Be a real person. Demonstrate some emotion.

People are not hiring a robot when they need a lawyer. They are hiring a flesh and blood human being and they expect you to act like one. Show them who you are through your writing.

OPINION What do you think? How do you feel about this topic? Those are the questions running through the mind of the reader while they are reading your article. If you take a stand, offer an opinion, some people will disagree with you. Some may even be turned off. But others will bond with you forever. Have some courage. Give your opinion. Your readers want it.

KNOWLEDGE Educational marketing is fantastic for demonstrating knowledge.

Your challenge is to do this in a way that is not condescending or demeaning. Help your readers discover the truth; do not beat them over the head with it. You are helping people explore, grow and understand; you are not teaching. There is a huge difference.

ENTERTAINMENT People want to feel something when they walk away from reading your work. You must engage them emotionally. That is what entertainment is all about. You must, at some point, tap into their emotions and stir up some kind of feeling in them.

That is the only way to truly develop a relationship with them.

Writing this way is an acquired skill. It takes practice. Start by thinking about how you tell a story and model your writing after that. Then go back and look for each of the elements of the P.O.K.E. method in your article. If you can identify them, you’ve done well. If you can’t, see what’s missing and add it in later.

It’s also very important to remember that all of these elements must be interesting to the reader. This can be done in three different ways:

THIRD-PARTY STORIES Telling a story about a third-party is an effective way to get your point across to your audience. Think of the story as an educational opportunity. Grab the audience and pull them into the story but wrap it up with an educational message. The thirdparty story blends an emotional appeal with the appearance of a logical fact pattern.

CASE STUDIES Case studies are a more academic version of the third-party story. They contain actual facts, case information and often will contain citations. Many people use case studies when they want to make a logical appeal to their audience. Some people find this methodology to be more sterile and academic.

PERSONAL EXPERIENCE This is the most effective form of writing. When you tell a story about yourself, it allows the audience member to paint a mental picture of the entire situation. The receiver of your message will suspend disbelief and “get into” the story. They will feel the emotions you felt. They will relate to you.

These three additional methods of emotionally engaging the audience of your message are all highly effective. The only decision you need to make is which method makes the most sense for you. Experiment with each writing style in your attorney marketing. n David V. Lorenzo is the Chairman and Founder of Rainmaker Lawyer Consulting. He and his team help attorneys “make a great living and live a great life.” If you’d like a FREE CD from Dave, titled: The Five Secrets to Making a Great Living and Living a Great Life as a Lawyer, visit: www.LawyerSecretsCD.com or call 888-692-5531

Attorney Journal Orange County | Volume 122, 2016 15

GOMEZ TRIAL ATTORNEYS Officially Arrive in Orange County Focused on Fighting for Justice Wherever They Are Needed, Gomez Trial Attorneys Opens New Office in Orange County and Continues to Evolve into Emerging Practice Areas

LAW FIRM

OF THE MONTH

22016 0 14

by Jennifer Hadley

W

ith hundreds of millions collected in verdicts and settlements for injured plaintiffs across the state and nation, high-profile media cases galore, and an indisputable track record demonstrating proven success in fighting (and winning) massive financial awards from some of the nation’s largest insurance companies, corporations, medical device manufacturers, government entities and more, Gomez Trial Attorneys is certainly not your average personal injury firm.

Indeed, there is no mistaking that Gomez Trial Attorneys is different by design. Trying more cases to verdict than virtually any other law firm in the state, Gomez Trial Attorneys is quite simply, a firm comprised of real trial lawyers. Yet founder and lead trial attorney John Gomez is noticeably humble when describing the reasons that he, and his team of more than 20 attorneys, are successful. “We take huge risks. We try cases. We hire good human beings and we treat our team members well,” Gomez says.

The firm has certainly gambled on cases time and again, emerging victorious for plaintiffs over and over. To date, the firm has nearly 100 awards of $1 Million or more. Those are in addition to jaw dropping jury verdicts including $106 Million for a wrongful death claim (Devillers v. County of San Diego), and groundbreaking cases such as Kransky v. DePuy, which was the first case tried nationally in the largest mass tort litigation in the country against DePuy hip replacements and resulted in

16 16

Attorney Journal Orange County | Volume 122 2016

an $8.3 million verdict.

While the firm remains at the forefront of emerging litigation in the rapidly evolving practice areas such as Environmental Litigation, Children’s Rights, and even Mental Health Issues (including litigation against the makers of some antidepressants, and wrongful death claims against two drug and alcohol treatment facilities), Gomez Trial Attorneys keeps a firm footing in practice areas it has excelled in for years. From auto accidents resulting in brain injuries, to automotive defects, to defective products and vehicular accidents of all kinds, every case Gomez Trial Attorneys takes has one thing in common.

“We hold wrongdoers responsible for their conduct through the civil justice system, and we make the world a safer place through litigation,” Gomez says. As the result, the Gomez name has become synonymous with success for countless injured and innocent victims, and has become a name insurance companies aren’t eager to face as a defendant.

But Gomez Trial Attorneys isn’t just known for successful representation, and keeping others safe. A beacon of service to both the legal community, and the local communities the firm serves, Gomez leads his team by example when it comes to making our communities a better place. “I believe that trial lawyers have an obligation to make their communities a better place—both through litigation and community service,” he says. To say that Gomez ‘walks the walk’ as opposed to ‘talking the talk’ is quite frankly, an egregious understatement.

Attorney Journal Orange County | Volume 122, 2016  17

A past winner of the San Diego County Bar Association’s Community Service award, Gomez and his colleagues donate time, money and resources to a staggering number of charities and causes. Some of the many events, fundraisers, donations, and more that the firm has actively spearheaded, led, participated in, and/or volunteered resources to include organizations and events benefitting kids-at-risk, foster children, Latino causes, preventing drunk and distracted driving, local hospitals and supporting services and organizations, along with the March of Dimes.

As far as service to the legal community goes, Gomez shines again as an example of giving back. A former Board Member of both the San Diego County Bar Association, and the San Diego Volunteer Lawyers Program, he served as the 2012 President of the Consumer Attorneys of San Diego, and proudly enjoys the opportunity to serve the community through his membership in the American Board of Trial Advocates, and the Summit Council, an elite trial lawyers association limited to less than 30 lawyers nationwide, who are all recognized by their peers as top civil justice advocates.

about wrongs being committed and then have the ability and courage to carry that truth to the people who can do something about it—the jury—then I can make a positive impact in this world,” says Montevideo.

The desire to help others is more or less a part of Montevideo’s DNA. He comes from a strong family-line of trial attorneys in the local area, and he’s felt a duty to serve others his whole life. In fact, after earning his undergraduate degree from Loyola Marymount University, Montevideo dedicated a year of service to the Jesuit Volunteer Corps in Houston, TX. He also served full-time with Vita Living, Inc., a non-profit working with those with mental and physical developmental disabilities.

With lawyering in his DNA, an inherently compassionate nature, and a love of service to others, it was through service work that Montevideo reaffirmed his hunch that work as a trial lawyer was his proverbial ‘calling.’

After graduating near the top of his class from Howard University School of Law, in Washington, D.C., Montevideo went on to work for the largest business and litigation firm in South Carolina, followed by Meeting of the experience at two prominent Like-Minded Los Angeles and Orange County With results that speak for plaintiffs trial firms, along with themselves, it’s no surprise that a stint in public service via the Gomez Trial Attorneys are in government sector through demand throughout the state. working with the Department Though Gomez says the firm of Justice in their Environmental has had a presence in Orange and Natural Resources Division; County for some time, he was Environmental Enforcement reluctant to open and staff Section. an office until he found the Suffice it to say, Montevideo John Michael Montevideo right person to lead trials and has earned an extraordinary run the day-to-day operations. reputation for both his trial Fortunately, he found that in John Michael Montevideo, an skills, and his commitment to the Orange County legal Orange County native with an incredible track record of his community and his hometown community. He is a past Finalist own, who is leading the Orange County-based office of Gomez for the prestigious state-wide CAOC Street Fighter of the Year Trial Attorney into new practice areas, based on his own unique Award in 2013 for a successful trial verdict in Orange County skill set and experience. in which he obtained 9 times the amount of the last offer A chance meeting through Gerry Spence’s Trial Lawyers before trial. He was named a Super Lawyer Rising Star in 2014, College would set the stage for the official launch of Gomez 2015 and 2016 (reserved for only the top 2.5% of lawyers). In Trial Attorneys in Orange County. Both graduates of the addition, Montevideo is an active member in the local Orange extensive trial lawyer training, Montevideo and Gomez each County and state-wide California legal community as a Board recognized similar goals and values mirrored within the other of Director for Orange County Trial Lawyers Association and in late 2015, Montevideo joined forces with Gomez to (OCTLA) and a Board of Governor of Consumer Attorneys guide the new office. of California (CAOC). He is immersed in community and “I became a trial attorney to help people. I found early on service work, as a natural byproduct of who he is, and his that if I was willing to dig deep enough to find out the truth desire to help others extends far beyond his professional life 18 Attorney Journal Orange County | Volume 122, 2016 18

and comprises a huge part of his family life. “My wife Christine is the Volunteerism Manager with Second Harvest Food Bank right here in Orange County,” he says proudly.

Thus, after meeting Gomez through Gerry Spence’s Trial Lawyer College, Montevideo says that Gomez’s encouragement and support of him has always been sincere and unrivaled, thus making the decision to join Gomez Trial Attorneys an easy one.

The synergy between the two trial attorneys was reinforced

by Montevideo’s admiration of the firm’s fearlessness. “The attorneys of GTA will try any case that needs to be tried.

Period. I wanted to be with the best and have the resources and access to cases that will impact the entire state and nation. The creativity, energy and sincerity of this firm to protect the rights of its clients is infectious and inspiring,” says Montevideo.

Gomez is equally excited about Montevideo helming their new office in Orange County, as according to him, Montevideo shares similar values, most notably a desire to help others in the courtroom and the community. “I became an attorney largely by default.

I lacked sufficient athletic, musical or dramatic talents to make it on the big stage,” Gomez jokes.

But there is a bit of truth in his self-deprecating jest, as Gomez is candid when saying, “I grew up under circumstances that put me very much at risk for social failure.” Attending three separate San Diego public high schools and Grossmont Junior College before going on to graduate from Yale Law School, Gomez’s first legal job included clerking for a federal judge, before joining the international law firm of Latham & Watkins, and serving as an Assistant United States Attorney, until he decided to go into private practice representing people.

“I learned as a federal prosecutor that I was a naturally gifted trial lawyer,” he says simply. “I also realized ideologically that I did not want to work any longer for the government or big business. That made being a trial lawyer for people a natural choice.” He launched his own practice in 2005, by himself, and has since risen to become one of California’s most recognized, awarded and accomplished trial attorneys, amassing awards such as national Lawyer of the Year (Lawyers USA), 2 awards for San Diego Trial Lawyer of the Year, 9 Outstanding Trial Lawyer Awards (Consumer Attorney of San Diego) and is included

amongst the Los Angeles Daily Journal’s list of Top 100 California Attorneys. To boot, he was voted by peers as the top attorney in San Diego for 2015 and 2016 overall in polling conducted

by Super Lawyers rating service. Best Lawyers in America named him the San Diego 2011 and 2012 Plaintiffs Products Liability Attorney of the Year and the 2015 Class Action and Mass Tort Attorney of the Year. Avvo rates him a 10.0 out of 10.0 and he has been voted by his peers as a top ten San Diego litigator in three separate fields: Personal Injury, Insurance and Corporate Litigation. Today, Gomez Trial Attorneys has three offices, more than 20 attorneys, and more than 50 employees.

Fearless & Forward Thinking “GTA has the guts, ability and resources to try difficult cases and win,” says Montevideo.

The firm’s case results speak to this truth, and often wind up revealing new practice areas wherein the firm’s skills and resources are needed to help people obtain justice.

By way of example, Gomez Trial Attorneys is actively litigating emerging environmental claims, as evidenced by lawsuits filed by various California and Washington cities against Monsanto, which have received international media attention.

Furthermore, father-of-three Gomez says that he’s also excited about the firm’s new “Children’s Rights” practice which focuses on protecting children from sexual abuse, bullying and neglect.

John Gomez In addition, Montevideo explains that the firm currently has two cases against a drug and alcohol rehab facility that negligently treated and cared for their clients/patients in a manner that ended up causing the deaths of two men seeking help at their lowest and most vulnerable moment. “We represent the two families in two separate actions against the same drug and alcohol [treatment] companies for the wrongful death of our clients’ husband and father. The wrongful conduct we’ve found in these cases is unbelievable, and we are doing everything we can to bring justice to our clients,” he says.

Incidentally, the ABC news program 20/20 will soon air a program focused on those cases and other deaths.

Suffice it to say, Gomez Trial Attorneys have never spared any expense when it comes to helping those who have been injured at the hands of others. With a full mock courtroom housed in Attorney Journal Orange County | Volume 122, 2016 19

©Christopher TODD Studios

their 20,000 square foot office in San Diego where the firm runs focus groups and mock trials, an in-house trial consultant, and an in-house graphics department, the team of trial attorneys truly goes to all lengths to ensure victory and justice for their clients.

This deep-seated drive to help others at virtually any cost also extends to fellow attorneys. Aside from having paid many millions of dollars in referral fees over the years, Gomez says that a full half of the firm’s caseload directly involves working with other attorneys or law firms. “We have a long and proven track record of co-venturing and co-counseling cases with referring lawyer and obtaining record-setting trial results. The lawyers we work with universally tell us they enjoy the experiences and their clients enjoy the value we add to their case even when we drop in as ‘last minute’ trial counsel,” says Gomez.

Staying True to Their Beliefs Though Gomez is excited about having an official, fulltime presence in Orange County, he has no specific plans to open additional offices, until the time is right, as it was in Orange County. “I don’t know if we’re going to open more offices.

We’re not growing just for the sake of growing. We are growing into practice areas and communities where we are excited and challenged, and needed. We do a lot of work in Orange County, and in the Inland Empire. The need or demand for our services will dictate if we open additional offices. Right now, this is just 20 Attorney Journal Orange County | Volume 122, 2016 20

the next natural move,” Gomez says.

But rest assured, the firm certainly won’t stray from its core vision, principles and values, including its commitment to giving back to the local communities where they work each day.

“I started my own firm because I wanted to make a community difference my way,” says Gomez. It’s no surprise therefore, that the firm is already aligning itself with local Orange County non-profit organizations and associations. “We will be working with the Public Law Center, One OC, and the Second Harvest Food Bank to start,” says Montevideo.

Continuing he says, “It’s an exciting time. We are honored to be able to bring a full team of real trial lawyers with a fulltime presence to Orange County. Together, we will try cases and win, and do our best to serve the Orange County community in any way we can.” n Contact: John Michael Montevideo Gomez Trial Attorneys www.gomeztrialattorneys.com johnmichael@gomeztrialattorneys.com 714-881-0319 Office 714-881-0320 Direct Center Tower 650 Town Center Drive Suite 870 Costa Mesa, CA 92626

Being a perfectionist can be an asset as a lawyer. It’s VERY important for you to get the details right when working on a client matter or appearing in court.

But in other ways, being a perfectionist can actually hold you back. Especially when it comes to business development. Being a perfectionist can keep you from making progress with plans that are good but perhaps not quite “perfect”… plans that would move your practice forward. Instead of sitting still.

Here are three specific opportunities to STOP waiting for perfection and instead make progress. I’m sure there are many more that you could identify for yourself.

How to Move Forward with Good Plans…

Instead of Waiting for Perfection

by Paula Black Drawing on over twenty years’ experience in branding and positioning, Paula Black has advised law firms around the globe on everything from powerful and innovative design to marketing strategy and business growth. She is the award-winning author of “The Little Black Book on Law Firm Branding & Positioning,” “The Little Black Book on Law Firm Marketing and Business Development,” and “The Little Black Book: A Lawyer’s Guide To Creating A Marketing Habit in 21 Days,” as well as founder and President of Miami-based Paula Black & Associates. For more information visit www.paulablacklegalmarketing.com.

22

Attorney Journal Orange County | Volume 122, 2016

1. Articles and blog entries. How many articles do you have on your computer that are mostly completed but you haven’t finalized yet? You may think they are not quite perfect yet… but meanwhile, how many opportunities have you missed out on because potential clients or referral sources haven’t seen the articles? If the articles or blog entries are very good… get them published and start building your credibility!

2. Leadership roles in your organizations. I encourage most of my clients to get very involved in a small number of strategically important organizations. This involvement is a chance for the lawyer to build key relationships and demonstrate his or her expertise in front of an important audience. But so many lawyers are afraid to put the wheels in motion because they haven’t figured out EXACTLY how they will respond to every possible contingency that may come up in the next year. Don’t overthink it. Have confidence in yourself, in your abilities, and in your plan!

3. Your overall business development plan. Unless you’ve got all the business you could ever want, both currently and in your pipeline for the future, it’s important to have a business development plan. And you need to devote time and strategic thought to creating this plan.

But you can’t let your perfectionism make you obsessed with getting every single detail of every single initiative exactly right. Get started! Get out there! Build relationships and generate business! Don’t feel the need to figure out every last detail… you can adjust and adapt your plan as necessary. The important thing is that you’re out there doing it. n

100% of Practice Devoted to Litigation As a victim or fellow attorney, your complex, hard-fought injury case calls for a PROVEN, DYNAMIC TRIAL TEAM. We put experience gained in MORE THAN 100 JURY TRIALS to work for clients.

•

Plaintiff’s Personal Injury Cases; taking cases at all stages of litigation, including trial

•

Wrongful Death

•

Catastrophic Injury

•

Auto Accidents

•

Select State & Federal Criminal Defense Cases

BRUNO 4675 MacArthur Court, Suite 1270 Newport Beach, CA 92660

NALU Toll Free: (800) 844 6907 Phone: (949) 988-0932 www.brunonalu.com

Defining “Must Do”

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

W

hether we’re talking about professional business development or our personal lives, there’s always a long list of things that we don’t get done, despite our declarations that we coulda, shoulda, woulda, oughta, wanta do them. So, which do we actually get done? Only those we must do. What defines “must,” and how does it differ from those other, aspirational, descriptions?

It’s simple. We must do something when the consequences of not doing it are a) known and b) deemed unacceptable.

Why is this important for lawyers and others trying to develop business?

To answer, let’s first look at the progression of the biggest problems faced by salespeople of any description: 1. High “no-decision” percentage, which leads to 2. Long sales cycle, which causes 3. High cost of sales In the case of lawyers, who rarely track or measure cost of sales, we can substitute “time” as a proxy for dollars. Lawyers waste most of their time trying to get potential clients to reallocate a slice of their current legal spend to them. You don’t think of it this way, but you’re asking prospects to make two decisions: 1. To change existing (perhaps longstanding) buying habits 2. To make you the beneficiary of the shift You may think that your inability to accomplish this twopart mission is a reflection on your skills, experience, or reputation, or on the quality or duration of your relationship, or the strength of the incumbent’s relationship. That’s possible, but very unlikely. Far more likely is benign neglect. After all, most clients don’t have to make either of those decisions.

What will happen if they ignore those decisions completely?

Nothing at all. There’s no negative impact. Their cost of doing nothing is zero.

24 Attorney Journal Orange County | Volume 122, 2016

Think about the pros and cons here. The only pro is that maybe they gain some as-yet-unknown advantage by awarding you a slice of the current pie—but only maybe. That’s a pretty fuzzy value that won’t motivate many people at all. There are a lot more cons, and they’re far better understood.

• They don’t want to have to manage another law firm • They don’t want to disappoint, or explain the reapportionment to, the incumbent lawyers

• They’re too busy to devote time and attention to a decision that’s of minimal significance

• Decisions involve risk, and we only take risks when they’re necessary to get something important or valuable

Unless prospects perceive that failing to decide will produce sufficient negative consequences that cause unacceptable impact, they’ll decide not to decide.

By now, you should recognize that your interests are best served, and align best with those of prospects and clients, by helping them more fully assess and appreciate their Cost of Doing Nothing relative to the decision on the table. If that turns out to be low, both the prospect and you can abandon the problem as not being important enough to require a decision.

On the other hand, if your facilitated examination reveals far more strategic, operational, economic, and career impact than they previously recognized, they’ll recognize that they must make a decision, and that you’ve helped them reach this degree of clarity. You’ve performed a valuable service and delivered meaningful value.

The alternative is to make your pitch, then wait around for a long time for a decision that likely will never come. Why be an anxious spectator? Instead, conduct yourself in a way that you be welcome as part of the decision. Isn’t that a better position to be in than that of pitchman begging for a slice of the pie? 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

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

CALIFORNIA SUPREME COURT Arbitration (Employment) Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: The California Supreme Court affirmed the Court of Appeal’s ruling reversing the trial court’s order denying a motion to compel arbitration on the basis that the arbitration agreement was both procedurally and substantively unconscionable. The arbitration agreement was procedurally unconscionable because it was written on a preprinted form and offered on a take-it-or-leaveit basis, making it a contract of adhesion. But the ability of the parties to seek preliminary injunctive relief in the superior court, as is authorized by California Code of Civil Procedure section 1281.8(b), did not render the arbitration agreement substantively unconscionable. (March 28, 2016.)

Employment Baltazar v. Forever 21, Inc. (2016) _ Cal.4th _ , 2016 WL 1176599: See summary above under Arbitration.

Kilby v. CVS Pharmacy, Inc. (2016) _ Cal.4th _ , 2016 WL 1296101: The California Supreme Court answered questions certified by the Ninth Circuit Court of Appeals regarding California wage order requirements that an employer provide suitable seating for employees under certain circumstances. The wage orders at issue state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (California Code of Regulations, title 8, sections 11040, subdivision 14(A) (Wage Order No. 4-2001), 11070, subdivision 14(A) (Wage Order No. 7-2001).) The California Supreme Court answers were as follows: (1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. (2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the 26

Attorney Journal Orange County | Volume 122, 2016

work, not an individual employee’s characteristics. (3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

(April 4, 2016.)

CALIFORNIA COURTS OF APPEAL Arbitration (Attorney Fees, Employment) Ling v. P.F. Chang’s China Bistro, Inc. (2016) _ Cal.App.4th _ , 2016 WL 1169307: The Court of Appeal affirmed the trial court’s order correcting and remanding an arbitrator’s attorney’s fees award under the California Arbitration Act (Code of Civil Procedure section 1280 et seq.), The arbitrator exceeded his power by awarding statutory attorney’s fees to a defendant employer for work performed in defeating an employee’s inextricably intertwined claims, contrary to public policy embedded in Labor Code section 1194’s one-way fee shifting provision. The trial court’s remedy—correcting the award and remanding to the arbitrator to determine plaintiff’s reasonable attorney fees and costs as the prevailing party—was proper. However, the Court of Appeal vacated the trial court’s award of attorney fees to plaintiff for her petition to vacate the arbitrator’s first award because that fee award was not authorized by either a statute or the arbitration agreement. (C.A. 6th, March 25, 2016.)

Civil Procedure (Anti-SLAPP, Collateral Estoppel, Demurrer, Motion to Strike) Baughn v. Department of Forestry and Fire Protection (2016) _ Cal.App.4th _ : The Court of Appeal affirmed the trial court’s order denying an anti-SLAPP motion to strike because defendant California Department of Forestry and Fire Protection failed to demonstrate that plaintiffs’ action arose from conduct taken by defendant in furtherance of its right of speech in connection with a public issue or an issue of public interest. (C.A. 3rd, March 11, 2016.)

Staniforth v. The Judges’ Retirement System (Chiang) (2016) _ Cal.App.4th _ , 2016 WL 1224501: The Court of Appeal affirmed the trial court’s order sustaining a demurrer without leave to amend because the statute of limitations had expired.

The action involved a subgroup of 10 retired jurists alleged by petition to have been underpaid, the last underpayment occurred in early 1987, and every potential member or beneficiary allegedly

underpaid the benefits by JRS was deceased by January 1, 2005.

The action, pleading a common count for “money owed” to the heirs of those deceased jurists, was not filed until 2012. The Court of Appeal found it was unnecessary to definitively divine the theory of liability to identify the applicable statute of limitations because it was satisfied that, under any and all of the possible theories underlying petitioners’ common counts, all claims by the heirs based on underpaid pension payments accrued at least seven years (if not decades) before the present action was filed, and the longest of the possible statute of limitations periods on the claims would have expired well before petitioners commenced the present action. (C.A. 4th, filed March 14, 2016, published March 29, 2016.)

Construction City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: The Court of Appeal affirmed the trial court’s order denying a writ petition seeking to prevent enforcement of Labor Code section 1782, which prohibits a charter city from receiving or using state funding or financial assistance for a public construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with the state prevailing wage laws. The Court of Appeal affirmed the trial court’s judgment upholding the constitutionality of section 1782 against a “home rule” challenge under Article XI, section 5(a) and Article XIII, section 24(b) of the California Constitution that was brought by several charter cities. (C.A. 4th, March 29, 2016.)

Employment and Labor Castro-Ramirez v. Dependable Highway Express, Inc. (2016) _ Cal. App.4th _ , 2016 WL 1298637: The Court of Appeal reversed the trial court’s summary judgment for defendant in an action alleging disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (FEHA) (Government Code, § 12900 et seq.), as well as wrongful termination in violation of public policy. The Court of Appeal found that a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member. (C.A. 2nd, April 4, 2016.)

City of El Centro v. Lanier (State Building and Construction Trades Council of California, AFL-CIO) (2016) _ Cal.App.4th _ , 2016 WL 1221948: See summary above under Construction.

Davis v. Farmers Insurance Exchange (2016) _ Cal.App.4th _ , 2016 WL 1182718: The Court of Appeal affirmed in part and reversed in part decisions by the trial court in a case alleging wrongful termination in violation of public policy and failure to pay wages. The Court of Appeal affirmed the trial court giving to the jury CACI instructions amended to reflect the holding in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The Court of Appeal affirmed the trial court’s denial of plaintiff’s post-trial request for declaratory and/or injunctive relief after the jury awarded plaintiff no damages for wrongful termination. While the

jury found that plaintiff’s age was a substantial motivating factor in his termination, it concluded that defendant would have made the same termination decision for legitimate reasons. However, the Court of Appeal reversed the trial court’s directed verdict for defendant on the wage claim, finding that plaintiff had presented sufficient evidence to allow the wage claim to go to the jury. (C.A. 2nd, March 28, 2016.)

Evidence Kirchmeyer v. Phillips (2016) _ Cal.App.4th _ , 2016 WL 1183324: The Court of Appeal affirmed the trial court’s denial of a petition by the Executive Director (Director) of the Medical Board of California to compel production of a patient’s medical records from a psychiatrist under an investigatory subpoena duces tecum. The psychiatrist was being investigated regarding an alleged improper sexual relationship with the patient. Both the psychiatrist and the patient objected to production of the records.

The Court of Appeal ruled that the medical records sought by the subpoena were protected by the psychotherapist patient privilege in Evidence Code section 1014. Because the psychotherapist patient privilege is grounded in the patient’s constitutional right of privacy, the Director had to show a compelling interest justifying production of the medical records, and failed to do so.

The Director also failed to establish any exception to the privilege.

(C.A. 4th, March 28, 2016.)

Real Property (CEQA) Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) _ Cal.App.4th _ , 2016 WL 1169302: The Court of Appeal affirmed the trial court’s denial of a writ petition seeking to set aside, under the California Environmental Quality Act (CEQA) (Public Resources Code, section 21000 et seq.), an ordinance prohibiting mobile medical marijuana dispensaries in the City of Upland. The Court of Appeal concluded that the ordinance was not a project under CEQA. (C.A. 4th, March 25, 2016.)

Torts (Elder Abuse, Government Immunity) Fenimore v. Regents of the University of California (2016) _ Cal.App.4th _ , 2016 WL 1191530: The Court of Appeal affirmed in part and reversed in part the rulings of the trial court on a demurrer and motion to strike in a case alleging elder abuse, negligence, negligent hiring and supervision, and wrongful death. The issues on appeal only related to elder abuse. The Court of Appeal reversed the order sustaining the demurrer to the elder abuse cause of action. Allegations that the defendant knew of staffing regulations, violated them by being understaffed, and had a significant pattern of doing so could allow a jury to find that the defendant was reckless. The order granting a motion to strike the claim of general damages was reversed to the extent it held that general damages are not recoverable for elder abuse. (C.A. 2nd, filed March 9, 2016, published March 28, 2016.) n Attorney Journal Orange County | Volume 122, 2016 27

S

To Develop Business, Just Remember One Word

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.

everal years ago I conducted a half-day workshop on Business Development at the firm retreat of an AmLaw 100 firm. I closed by saying the following: “If you don’t remember anything we have discussed in the last three hours, then just remember one word.”

Then I printed it on the flip chart—and explained what it stood for.

Since then, whenever I have been with an attorney—partner or associate—who was at that retreat, he or she never fails to bring up that word and say something like, “As you can tell, I’ve never forgotten that. It really works.”

What was the word? PALER! And what does it stand for?

Plan how you’re going to approach the client or prospect.

Ask questions. What are the problems they are dealing with? What are the issues they are facing and what are their plans for addressing these issues?

Listen to their answers.

Educate them on how you could help solve their problems or assist them in achieving their plans. Don’t try to sell.

Request the business. In your own words and in your own way, “ask for the order.”

Needless to say, ever since then, whenever I discuss Business Development with attorneys, I tell them it’s not complicated. Just remember one word. n

why you should refer your child sexual abuse or adult sexual abuse case to us: We have unmatched experience handling child sexual abuse cases for over twenty years.

We have redefined the value of childhood sexual abuse cases and sexual abuse cases involving adults.

victories for children since 2012 high seven-figures paid seven-figures paid seven-figures paid seven-figures paid

Teacher touching two students in the classroom Teacher sexually assaulting student athlete Teacher putting student on lap in classroom 5-year-old girl molested by 5-year-old boy

victories for adults since 2012 high seven-figures paid seven-figures paid

Patient improperly touched by physician during exam Patient fondled by physician before surgery

groundbreaking privacy rights victory for child sexual abuse victim M.G. v. Time Warner, Inc., (2001) 89 Cal.App.4th 623 Generous referral fees paid pursuant to state bar rules.

the cifarelli law firm, llp 28 Attorney Journal Orange County | Volume 122, 2016

www.CifarelliInjuryLaw.com

1.888.703.7833 ● 949.502.8600

We’ll help you put your best foot forward.

From logos and brochures to websites, strategy, writing and beyond, we’ve got you covered!

Jenny Strauss, Partner (215) 460-0835 jenny@skidmutro.com

©2016 Executive Law Group, Inc.

IS YOUR LAW FIRM MAKING THE BEST IMPRESSION?

ELG Will Help Him Weather The Storm

The Preferred Referral for Executives and Professionals!

ELG

® ✓Crisis

Executive Law Group®

Legal Services for Executives and Professionals in Transition

Counseling

✓Severance Packages ✓Employment Contracts ✓Litigation

Refer executives and professionals to execlaw.com or contact us toll-free for a free pre-consultation.

View our portfolio at skidmutro.com 30 Attorney Journal Orange County | Volume 122, 2016

888.920.EXEC (3932)

R. Craig Scott, Esq. Founder and Managing Partner “AV Preeminent® ” Rated

UNRIVALED JURY VERDICTS S ETTLEMEN T S PERSONAL SERVICE REFERRAL FEES

PANISH SHEA & BOYLE is happy to discuss how

we may assist you in your case. Please contact

the Honorable Judge Peter Polos (Ret.) for more information at polos@psblaw.com.

WWW.PSBLAW.COM

310.477.1700

1.877.800.1700

PRSRT STD U.S. POSTAGE

PAID

Post Falls, ID PERMIT NO. 32

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