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Write Your Way to New Business by Writing for Magazines
Presentation is Key: A Successful Combination Of Words and Visuals
Selecting the Mediator
You’re in Sales, Get Over It
Steven H. Kruis
David King Keller
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TABLE OF CONTENTS 6 Selecting the Right Mediator for Your Dispute
by Steven H. Kruis
8 Write Your Way to New Business by Writing for Magazines by David Lorenzo
12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson
ATTORNEY OF THE MONTH
14 Jon Mitchell Jackson, Laguna Hills People Skills, Digital Leadership, Empowered Clients
by Dan Baldwin
20 You’re in Sales, Get Over It
PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Steven H. Kruis David Lorenzo David King Keller Lori McElroy 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
by David King Keller
22 Peter Maretz, Stokes Wagner, ALC White Glove Service for Orange County’s Hospitality Industry by Jennifer Hadley
28 Presentation is Key: A Successful Combination Of Words and Visuals
by Lori McElroy
ADDRESS CHANGES Address corrections can be made via fax, email or postal mail. 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 2017 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
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Selecting the Right Mediator For Your Dispute by Steven H. Kruis, Esq.
hat should you consider when selecting a mediator? This article addresses the salient factors that will enhance the likelihood of a successful mediation.
Timing. When is a dispute ripe for a productive mediation? Generally speaking, it is when the parties possess enough information to intelligently discuss liability, causation, and damages. Once the dispute evolves to that point, and the parties share a genuine interest in reaching resolution, mediation is timely. Selecting the mediator. One size does not fit all. The personality types and needs of the parties, the level of client control, your relationship with opposing counsel, and the nature of the dispute all factor into determining the best mediator for each particular dispute. Regarding mediation styles, on one side of the spectrum is the facilitative model and purist mediator who works toward finding creative solutions that meet the interests and needs of the parties, ascribing relatively little importance to their legal rights. The best cases for the facilitative model are those more about emotions than money, especially when the parties will continue their personal or business relationship. The mediator is a facilitator, not evaluator. On the other side of the spectrum is the evaluative model, in which the mediator evaluates the case and tells the parties what it is worth. The case is solely about money, and the emotional aspects of the case are not highly relevant. The hybrid model is in the middle of the spectrum, where the mediator is a skilled facilitator who shares neutral impressions with the parties to help them better evaluate the matter. Instead of assigning a value to the case and prevailing upon the parties to agree with that value, the hybrid-model mediator endeavors to get the parties to agree with each other as to what the case is worth. Emotions—hurt feelings, anger, animosity—are important in that they must be addressed before getting down to the business of negotiating a settlement, but these cases are ultimately about money. The subject matter of the dispute and the personalities of the mediation participants will dictate the best type of mediator. A strong-willed and successful business client may not react well to an aggressive evaluative mediator, but instead will require a much more nuanced approach, whereas an unsophisticated but 6 Attorney Journal Orange County | Volume 138, 2017
hard-to-control client with unrealistic expectations may benefit from that approach. Interviewing the mediator. Once you have determined the type of mediator most appropriate for your matter, is it appropriate to call a prospective mediator and discuss the case and mediator’s style? Many practitioners are reluctant to make such a call as an ex parte communication. However, remember that mediation is nothing more than a series of ex parte communications. Since the mediator is not making a decision, there is no ethical or legal prohibition to a pre-mediation communication. In fact, the law encourages such communications by cloaking them in mediation confidentiality. California Evidence Code § 1115 (c) defines a “mediation consultation” to include a call to a mediator “for the purpose of initiating, considering … or retaining a mediator.” Under § 1119 (a), communication during a mediation consultation is subject to all of the protections of mediation confidentiality as if made during the mediation itself, even if the prospective mediator is not ultimately retained to mediate the dispute. When interviewing the prospective mediator, consider inquiring about mediation style, training, experience, strengths, and weaknesses. Other appropriate questions include: have you previously worked with my opposing counsel? What is your view of your role in mediation? What lessons has your mediation experience taught you? Do your unsuccessful mediations have common characteristics that the parties could have avoided? What effort will you make to follow up if we do not settle the case? What advice do you have for me in preparing for mediation? Getting opposing counsel to embrace your suggested mediator. Once you have decided on the mediator with whom you are comfortable for your case and want to propose to opposing counsel, how can you enhance the likelihood that counsel will agree to your suggestion? Ideally, the mediator will have previously mediated with you and opposing counsel. If you have used the mediator before, but opposing counsel has not, disclose that fact up front. Explain why you believe the mediator would be a good fit for the case, and invite counsel to call the prospective mediator. Also, provide opposing counsel in the current case with the name and contact information of the attorney or attorneys who opposed you in the prior case mediated by the prospective mediator. Good mediators generally have positive experiences
with such opposing counsel, who will most likely provide favorable input. There is no better recommendation than that coming from your adversary in a prior case that was successfully mediated by the mediator you are proposing! Tell the mediator what you need. If possible, speak with the mediator before the mediation. If a pre-mediation call cannot occur, let the mediator know at the outset of the mediation that you would like to speak in private. Either in the pre-mediation call or private meeting at the outset of the mediation, let the mediator know how he or she can help you either with your client or opposing counsel. Be prepared to discuss any client control issues, client constituents that may have influence on the client, the relationship, if any, between the parties, and how you interact with opposing counsel. Mention your thoughts about a joint session, and any other salient points that will help the mediator understand the dynamics underlying the case, and any impediments to settlement. By following these suggestions, you can find the right mediator for your case and enhance the likelihood of a successful mediation. n Steven H. Kruis, Esq. has mediated and litigated thousands of cases for the past 32 years. A former managing partner of a major San Diego law firm, he began mediating in 1993, and handles real property, business, probate, employment, and injury matters. He is a full-time mediator with Kruis Mediation. www.kruismediaton.com
Attorney Journal Orange County | Volume 138, 2017â€ƒ 7
Write Your Way To New Business By Writing for Magazines
by David Lorenzo
ne of the best ways for attorneys to get their name out and to position themselves as experts in their field is to get published. We live in a multitasking society. Doctors and lawyers are writers, fitness experts create vitamin supplements, and dog trainers get their own TV shows. One of the great things about being an attorney is that you’re already credentialed. You don’t have anything to prove. Use your legal credentials to your advantage and write your way to new clients. People like experts. When the chips are down and potential clients are hunting for an attorney, they want someone who seems to really know their stuff. If your name is continually referenced within your niche market, this can only lead to more exposure and more business. The bottom line is that as an attorney, you have to market not only your law firm and its services, but yourself as well. Don’t feel squeamish about this. Done the right way, marketing yourself does not diminish your reputation. On the contrary, it builds your reputation to the point where you will be turning clients away because your firm is in such high demand.
The Basics Magazines need freelance writers and they love ones that come with credentials. If you notice that many of your clients make the same mistakes, maybe not having a living will or something along those lines—something that relates to a wide audience, write about it. Again, you have legal credentials, so you are already one step ahead of the competition. You can hire another writer to do some of the leg work for you if you truly can’t find the time to do it yourself, just make sure that you follow it up by putting your own personal touch on it. It needs to feel like it was written in your voice, with your unique style. As a matter of fact, you should work to develop your own personal writing style. If someone follows articles that are written in your legal field, over time, you want them to be able to tell which ones probably came from you. This can sometimes be difficult for attorneys. They’re used to writing things that are going to be read because they are critical to a legal case. Writing in a way that needs to be interesting to keep readers engaged can be a challenge. Don’t be daunted. Ask friends, family, anyone who is not a lawyer to read over your work to help you determine if it is interesting and accessible. 8 Attorney Journal Orange County | Volume 138, 2017
Getting Ideas Study articles and books written by other lawyers. The goal here is not to try to copy or repeat what they’ve done, but simply to help generate ideas. Watch the news. If there are stories or themes that keep reoccurring, ask yourself if there is a legal element that you discuss. Your writing does not need to exactly correlate with a legal case or a particular legal issue. Think of it as looking at everyday tasks through a legal lens.
Where to Publish This is where you pitch your story idea to the magazine editor and detail your plan for writing it. First, decide to which magazine you’d like to pitch your idea. While there are numerous national magazines that accept work from freelance writers, there are also a multitude of regional magazines or trade magazines that may be a good place to get your feet wet. One of the best places to start is Writer’s Digest. You can buy one in almost any major bookstore in America, or you can get all the information online with a paid membership. Going online for the information is often the best plan because the information is regularly updated. There you’ll find lists of thousands of magazines, some with readerships as small as 25,000. Remember that your main goal is to get clips that you can send out to clients and to others to increase your credibility.
Writing the Query Letter What editors are looking for in a query letter is evidence that you can pull off writing the article. If you need to interview someone for the article, be sure to contact them for permission before you submit your query letter. Use the query letter to outline your plan for writing the article. Before setting out to write the perfect article, know your rights. Conduct some research about copyright law. Then, when you get published, don’t keep it a secret. Let people know what you’re doing, either in your blog, monthly newsletter, or even just an individual mailing about your work. n David Lorenzo helps solo attorneys, large law firms and small independent law practices make a great living and live a great life. People say his down-to-earth personality reflects more of his street smarts than his Ivy-League education. He can be reached at 888.692.5531.
Keller/Anderle LLP BUSINESS TRIAL LAWYERS
Business and Partnership Matters & Board/Association/Property Controversies “Shannon is a well-respected litigator who is committed to getting her clients the best possible results. She is smart, hard-working, and experienced. I would not hesitate to refer my clients and colleagues to her for business litigation matters.” –Marie DiSante, Labor & Employment Attorney, Managing Partner – Carothers DiSante & Freudenberger LLP
Shannon Lamb has successfully negotiated and resolved more than 2,000 matters on behalf of individuals, companies, and boards. She is also rated AV® Preeminent™.
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COMMUNITY news n Newmeyer & Dillion LLP is pleased to announce that four of the firm’s Business Litigation attorneys— Michael B. McClellan, Jennifer L. Ferrentino, Eric J. Rollins, and Jason Moberly Caruso—were selected to the Southern California Super Lawyers 2017 Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by Super Lawyers to receive this honor. The attorneys will be recognized in the July 2017 issues of Super Lawyers Magazine, Los Angeles Magazine and Orange Coast Magazine. In addition, twelve of the firm’s Newport Beach attorneys were selected to the 2017 Southern California Super Lawyers list, an honor given to no more than five percent of the lawyers in California. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. The Rising Stars list is developed using the same selection process except a candidate must be either 40 years old and younger or in practice for 10 years or less.
MICHAEL B. MCCLELLAN
JENNIFER L. FERRENTINO
ERIC J. ROLLINS
JASON MOBERLY CARUSO
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 138, 2017
n For the second consecutive year, Super Lawyers Rising Stars has selected Easton & Easton partner Matthew D. Easton among the Up-and-Coming Top 100 in Southern California and Up-and-Coming Top 25 in Orange County. While the Rising Stars selection, which Matt has received each of the past 4 years, is reserved for the top 2.5% of attorneys under the age of 40 in MATTHEW D. EASTON Southern California, the Up-and-Coming designations provide an even greater level of distinction within the Rising Stars. In addition, Matt was recently inducted as a Fellow into the American Bar Foundation, a nonprofit honorary society of lawyers and jurists limited to 1% of the attorneys practicing in the United States. Recognized as a premier legal research institute in the United States, the ABF conducts cutting-edge, interdisciplinary, empirical research regarding critical questions at the intersection of law and society, such as access to justice, jury efficacy, law and health, etc. Matt was also selected for the fourth consecutive year to The National Trial Lawyers Top 40 Under 40 and rated AV Preeminent by Martindale-Hubbell for the third consecutive year. n Umberg Zipser LLP is pleased to announce that Mei Tsang and Ryan Dean have joined the firm as partners. Mei and Ryan work with companies of all sizes—from small businesses to Fortune 500 institutions—both domestically and internationally. Mei has an international intellectual property practice focused on helping clients formulate their IP strategy, MEI TSANG and shepherding their IP through various business cycles to achieve their business goals worldwide. Mei has substantial experience in patent and trademark portfolio development, and in all aspects of IP enforcement, including negotiation, licensing, and litigation at various courts at the federal, state, and administrative levels. Ryan specializes in global patent and trademark prosecution for clients of all RYAN DEAN sizes, and focuses primarily in the areas of mechanical and aerospace engineering, process engineering, household and consumer products, medical devices, and fluid conditioning systems. He also has substantial experience with licensing, defense and enforcement of both patents and trademarks, including at the U.S. Patent and Trademark Office and in Federal Court. Ryan manages portfolio development for domestic and international clients, developing tailored strategies to best protect clients’ intellectual property while providing clients with cost certainty. Ryan has led global enforcement efforts in the U.S., Europe, Japan, China and other countries around the world.
n For the fifth consecutive year, Berger Kahn Partner Erin Mindoro has been named to the Southern California Super Lawyers “Rising Stars” list. Erin has achieved this designation from Super Lawyers through a detailed research process, peer evaluation, and because of her demonstration of excellence within the first ten years of practicing law. Berger Kahn congratulates Erin for her recognition. n Bisnar Chase Managing Partner Brian Chase recently received the Top 1% of Attorneys in America Award from the Distinguished Justice Advocates, while Partner Scott Ritsema was awarded the Top 1% Award by America’s Most Honored Professionals. In addition, the Newport Beach-based firm was named one of the 10 Best Law Firms by the American Institute of personal Injury Attorneys for 2016-2017.
n The 2016 Thomas A. Mesereau Cup was recently presented to white collar criminal defense lawyer Kay Anderle, managing partner of Keller/Anderle LLP. The award is given by the Litigation Counsel of America, an elite invitation-only trial lawyer honorary society representing less than one-half of one percent of American lawyers. KAY ANDERLE According to the LCA: Each year the LCA awards the Thomas A. Mesereau Cup to a deserving lawyer, judge or scholar practicing in the area of criminal law. The award recognizes excellence and commitment at the highest level. Candidates are generally leaders in the legal profession who seek justice for or preside over individuals within the court system whose rights and freedoms depend on the selfless and courageous efforts of committed professionals. The award honors visionaries who have created constituencies and inspired, mobilized and/or unified others in seeking equity and equality within the system and in furtherance of the common good. Recipients are those whose leadership has had national or international impact, who practice the art of advocacy at a preeminent standing and who are committed to those they represent in the pursuits to which they are assigned.
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Attorney Journal Orange County | Volume 138, 2017 13
Jackson & Wilson Showcase the Human Side of Law and Business with Cutting-Edge Technology and a Focus on the Exemplary Client Experience by Dan Baldwin
“As lawyers, we have an opportunity to make the world a better place. I encourage everyone to go through their day with that in mind. We enjoy helping people and we enjoy not only making a difference in our local community, but across the world using social media and a digital platform,” says Jon Mitchell “Mitch” Jackson, Senior Partner at Jackson & Wilson, Inc.” The firm’s other senior partner is Lisa M. Wilson, Jackson’s wife and according to Jackson, “one of the most caring people and brightest and most talented trial lawyers I’ve ever met.” Jackson & Wilson practice areas are personal injury, wrongful death, and business litigation. Jackson says, “Helping people is what it’s all about. I think when it comes to branding themselves and their practices, too many attorneys get too wrapped up in sharing their degrees and accomplishments as opposed to showing the consumer how they can help. If you want to connect, you’ve got to realize we’re all in this together and let the consumer know that, as one human being to another, we can help each other.”
14 Attorney Journal Orange County | Volume 138, 2017
Rolling the Dice Jackson grew up on a ranch in Tucson, AZ and the seed to make a difference through a legal career was planted during his high school years. His dad and mom told him if he wanted to make a difference, he’d have to get involved. Fred N. Belman, a neighbor who was a local district attorney, and Jackson would go scuba diving in the Sea of Cortez. During their trips, he listened carefully to Belman’s courtroom stories and realized that his neighbor was someone who was making a difference. After expressing that he wanted to do the same, Belman suggested that becoming an attorney would provide the vehicle.
OF THE MONTH
Jackson says, “I really didn’t know what I was getting myself into. But, with that nudge from Fred, I followed his advice and rolled the dice and went for it. Looking back 30 years later it was the best decision I’ve ever made.” The first member of his family to attend college, he graduated from the University of Arizona in Tucson with a B.A. in Business Administration. During his college years he waited tables, tended bar and worked the front door at local drinking establishments. Jackson credits those experiences with teaching him the value of people skills. He says, “I tell young trial lawyers there’s so much more to being successful in court than knowing the evidence code or civil procedure. You must be genuine, trustworthy, and have good people skills to succeed in the courtroom. I think this also applies in business and life.” Before starting law school, Jackson spent two years working as a front desk clerk and night manager at Caesar’s Tahoe. Although he enjoyed skiing in the winter and sailboarding in the summer, he realized, “that it wasn’t enough for me internally. In other words, I wanted to do more. I wanted to contribute more to society. And I mean that. It’s just in my DNA.” He walked away from a pay raise, a promotion and the lifestyle of living in a ski resort community. Returning to Tucson, he focused on studying for the LSAT to take his life down a different path. That path led to earning a J.D. from Western State School of Law in California. “My experience in Lake Tahoe was fantastic, but I wanted to 16 Attorney Journal Orange County | Volume 138, 2017
raise the bar and take things to another level, and that’s why I decided to focus on becoming a lawyer. It was one of the best decisions of my life. I met my wife in law school and we’ve enjoyed a very rewarding, and frankly, fun life for the past three decades practicing law and being involved with our community,” Jackson says.
Jumping to Success He began his law career as a sole practitioner on an extremely limited budget and working out of a conference room owned by another lawyer, a room big enough to hold his entire client base at that time. All his case files were maintained in the back of his car. Realizing the value of networking, especially to a newcomer to the field, Jackson took a unique approach. His daily schedule included playing basketball most days in Laguna Beach, and in between games, returning calls, and networking. “The more jump shots I hit the more friends I made, and the more friends I made the more referrals I got. That’s how I started off in the mid-eighties. I love people and I just started meeting more and more people and expanding out and eventually, leasing a small office space,” he says. Expansion continued with the addition of Lisa M. Wilson as a senior partner. Husband-wife teamwork was a tradition for both families. Jackson’s parents worked together at the guest ranch. Wilson’s parents had a dairy distributorship. Teaming up as business partners was a natural step. “Two years after founding
the company, Lisa came in with me. She was with a large firm and when we left for our honeymoon she gave notice, took the high road and gave them plenty of time, and when we came back she came in with me. And that’s when we became Jackson & Wilson,” he says.
Creating an Exemplary Experience for the Client “There are a lot of amazing attorneys and outstanding firms in southern California. What makes them good and what makes our firm standout is that we enjoy what we’re doing and our dedication to do our best to make sure our clients’ experience is an exemplary one. If a client wants us to communicate with him or her using text message, or private message on Facebook, or private DMs on Twitter, then that’s the way we’ll communicate with that client,” he says. He credits much of his firm’s success to maintaining an awareness to the human side of the law. “As human beings we’re here to help, we’re here to assist, we’re here to help our clients fix their problems. And by keeping the focus on that, it’s allowed us to consistently get good results. It’s allowed us to make a difference in the community. It’s allowed us to enjoy the profession of practicing law. Look, I’ve been practicing 30 years. I’m more excited today about getting up, getting to the office and practicing law than ever before. I don’t know many lawyers who feel this way after practicing for three decades. I think it shows that we’re going about things the right way.”
His management philosophy is based on two principles: lead by example and always do the right thing. He says there are no exceptions to that rule. The goal is to constantly, on a day-today basis, take action and keep moving forward, realize that mistakes happen, and that it is essential to learn from those mistakes, make the necessary adjustments, and then move on. He adds that the learning the art of delegation is also essential. “If you’re bringing in employees, if you’re building a team the right way, then you’re empowering everyone to do the same and it makes delegation much easier and much more effective.” Jackson’s personal philosophy is equally simple: out-hustle the other side. When it comes to building a brand, if an attorney or a firm is doing things like everyone else in town, then they’re probably doing things the wrong way. He says, “What I enjoy most about my work, and what I’ve learned over the years, is that if I prepare and out-hustle the other side, I’m usually going to get the results my clients are looking for. That mindset is my success formula. It’s my advantage. I don’t enjoy the paperwork, but I enjoy winning and fixing my clients’ problems, which are a result of the hustle and the hard work.”
Using Technology to Showcase the Human Side “I enjoy traveling around the country and speaking about marketing, branding and social media. Because of the other experts I meet, I feel like I have my finger on the pulse of evolving technology and the digital world. It’s something I Attorney Journal Orange County | Volume 138, 2017 17
Photo by Rajiv Sankarlall
Mitch and David Meerman Scott share marketing tips at Tony Robbins Business Mastery.
Contact Jackson & Wilson 23161 Mill Creek Drive, Ste 150 Laguna Hills, CA 92653 949-655-8751 800-661-7044 JacksonandWilson.com https://Streaming.Lawyer Social Media: Mitch.Social 18 Attorney Journal Orange County | Volume 138, 2017
enjoy doing and talking about. The law firms who take advantage of social media and other digital outlets are the ones who will be successful over the long term,” Jackson says. He recently shared similar thoughts about business development from the stage at the Tony Robbins Business Mastery event and will be speaking about Augmented Reality, Virtual Reality, Mixed Reality, and Artificial Intelligence at the Clio Cloud conference in New Orleans. He believes that over the next five to ten years, these new technologies are going to change everything in business and in the practice of law. Jackson says, “This is the technology that’s going to change the world as much as the printing press, Internet and smartphones. That’s how powerful ARVRMRAI is going to be. You’re going to see more exponential change over the next five years than you saw over the last 50. If you don’t embrace this technology you’re probably going to become an afterthought.” For example, in addition to the firm’s website and other social media platforms, Jackson shares his experiences and thoughts revolving around technology at his blog, the Streaming.Lawyer. It’s a platform where he shares much of his social media, digital and live-streaming efforts. “It’s also a place where we try to show our other passions and interests outside the office. We really enjoy doing that. I think more lawyers and more professionals should show their human side. That’s what it’s all about—helping people,” Jackson says. “I’m a firm believer that you have to design and live a life that works for you. Everyone has ideas, but to find success in law, business and life, you must consistently execute and take action. Along the journey, you also need to put your health first, family and friends second, and then focus on your career. Get this order of priorities mixed up and you’re in for a bumpy ride. n
• University of Arizona – Business Administration • Western State School of Law – Juris Doctor • Member: Local and National Trial Lawyer Organizations
» PRACTICE AREAS • Personal Injury • Wrongful Death
• Business (Digital) Litigation
• California Litigation Attorney of the Year Award (CLAY Award) – 2013 • Orange County Trial Lawyer of the Year (OCTLA “Top Gun”) – 2009 • Top “AV” Rating by Martindale-Hubbell | Bar Register of Preeminent Lawyers • Southern California Super Lawyer • AVVO “Excellent” (10 out of 10) • Top 50 Social Media Influencers – 2017 • Mashable’s “50 Snapchat Marketing Influencers” – 2016 • Contributing Consultant: California State Bar’s “Effective Introduction of Evidence in California – Chapter 54 Electronic and Social Media Evidence” – 2017 • Contributing Expert: “Shame Nation” by Sue Scheff with the forward by Monica Lewinsky
• Fourth generation Rotarian • Jackson and Wilson are former Presidents of the Monarch Beach Sunrise Rotary Club and Mitch is the former Interact District Governor
You’re in Sales, Get Over It by David King Keller
Every communication involves selling. Every utterance is a sales call. Every time you speak you are making a sales pitch. “Hi honey, how was your day?” That is a sales call. You’re selling the idea that you care about “honey,” that you care about honey’s day, and that he/she still accepts the title of being called your honey. The expression had three sales in one “harmless” phrase. So, just accept that everything is sales. Sales is just another word for communication. You’re in the communication business, and as a lawyer, you’re an expert. So, you’re already an expert in sales. You simply need to hone those sales/ communication skills to maximize cash return. In fact, you’re not interested in “sales” per se, if the word “sales” is an abstraction to you. You’re interested in communication that retains revenue-generating relationships and creates new revenue-generating relationships. So, it’s simply customized communication that creates revenue, or new cash. A “sale” occurs when someone moves cash from their account to your account, or enters into an agreement to do so. At any given moment we are operating from the “higher functioning” prefrontal cortex portion of the brain or the lower primate base section of the brain. Some say we are either expressing love (prefrontal cortex) or fear (fight or flight section of the primate brain). Both help the Rainmaker. The good ones learn how to appeal to both directive portions of another’s brain. Again, some may do this unconsciously. The task here is to make it conscious for you at first, then, as it becomes a habit, it will slip into competent unconscious behavior. There are 4 stages of competence: unconscious incompetence (you don’t know what you don’t know), conscious incompetence (you know you don’t know), conscious competence (you consciously practice your competent skills), and unconscious competence (you practice your competency without consciously thinking about it.) When you think of selling, think about breathing, seeing 20 Attorney Journal Orange County | Volume 138, 2017
and hearing, all things that come easily and naturally to you. Selling is a very normal, natural and essential aspect of being human. Get over the word, selling. You are already a consummate salesperson. You sold yourself on your law school application. You sold yourself to a law firm. Over your life you have sold any number of people on the idea that you are likable, even lovable. Neuroscience enlightens us here. Selling is a neutral word. It only has the meaning we give it, called its complex equivalence. Remember that when addressing a jury, a judge, or the other side of a negotiation, everyone brings their own “definitions” to the table, the sights, sounds, feelings, even smells and tastes. Like a fingerprint, everyone has a unique “complex equivalence” for the words and phrases you are presenting to them. As do you. By knowing this, you can make it work for you. Let’s take a moment to improve your complex equivalence of the word, “selling.” Imagine your favorite activity. I know you have many to select from. Pick one that’s forming in your mind now. Right, that activity. Go with that one. See it now in all 3 dimensions. Now, as you see it, breathe into it. Notice your favorite activity and how you feel while being fully associated with it. Don’t watch it like a movie. Step into it as a lead character. What do you see? What do you hear? What do you feel? Any smells or tastes? Put them all there. Be in that pleasant space now. As you are living this delightful experience, place the word “selling” on top of it, or as very large see-through letters suspended in air going from the left edge of what you see to the right edge. Stay in this favorite activity for a while with the word “selling” layered on top of it or fully within it, and hear the word selling as you continue to enjoy your favorite activity. Stay with this experience for a short while. Now think of your favorite food. I know you have many
to select from. Pick one that’s forming in your mind now. Right, that favorite food. Go with that one. Smell it. Taste it. Mmmmm….. yummmmm. Be in that space with your favorite food. Now. Smell it. Taste it. See what you see. Hear what you hear. Feel what you feel. Breathe in the experience fully. As you are fully enjoying your favorite food, place the word “selling” over the whole experience as you enjoy your favorite food. See the word, “selling,” possibly as translucent letters from one edge of the scene to the other, and hear the word, “selling,” as you continue to enjoy your favorite food. Stay with this experience for a few more moments. Now think of one of your proudest moments: being complimented, praised, receiving a certificate or award, a raise, a good grade, an applause, a smile, a hug or a kiss. I know you have many to select from. Pick one that’s forming in your mind now. Right, that one. Go with that one. See now what you saw then. Hear now what you heard then. Feel now what you felt then. Smell or taste now any smell or taste you had then. Be fully present with the experience. Make it a full body experience. Breathe into that experience now. And as you fully experience that proud moment, place the word “selling” over the whole experience as you re-live that proud moment. See the word, “selling,” possibly as translucent letters from one edge of the scene to the other, and hear the word, “selling,” as you continue to enjoy and fully experience that proud moment.
Stay in this pleasant experience for a few more moments. Now think of the word “selling” and flash back to the favorite activity, favorite food, and proud moment you’ve just been experiencing. Enjoy those thoughts and feelings for a few moments. Possibly a slight smile and positive feeling is being experienced. Good. Excellent. If you’re like many others, just going through the above process will give you a pleasant change in the bodily experience of the word “selling.” If you are not like other people, then you have already worked out a unique solution to have a better relationship with something you’ve been doing your entire life, selling. n David King Keller is the award-winning author of 100 Ways to Grow a Thriving Law Practice and the ABA best seller, The Associate as Rainmaker: Building Your Business Brain. Keller is an Ethics M/CLE instructor and delivers business development training within an Ethics CLE titled Ethical Business Development Strategies. This Ethics MCLE is accepted by State Bars, law firms, Bar associations and ABA annual conference CLE seminars. David is a respected keynote speaker and trainer on strategies for increasing firm revenue, including The Neuroscience of Quickly Going From Stranger To Trusted Advisor. Contact David for a free copy of his Social Media for Lawyers article or a review copy of his two law firm business development books at firstname.lastname@example.org or call him at 415-289-0544, cell: 415-444-6795.
Attorney Journal Orange County | Volume 138, 2017 21
White Glove Service for San Diego’s Hospitality Industry Driven by Passionate People, Stokes Wagner Provides 5-Star Legal Services to Those in the Business of Spectacular Service by Jennifer Hadley
“Because high touch service is at the heart of our clients’ operations, it is likewise a part of our fabric at Stokes Wagner,” says Shareholder Peter Maretz. “With San Diego being a premier tourism destination, the Stokes Wagner brand is fortunate to represent many different businesses of all sizes, but our typical client is a high-end hotel or restaurant,” he adds. For his part, the patently energetic and incredibly friendly Maretz says that although he didn’t set out to work in hospitality, or even employment law, he’s eternally grateful that the chance presented itself. “The opportunity to focus on hospitality really found me, but I love it and it matches who I am so well. The commitment to customer service drives me to the hospitality industry,” he explains. Plus, he adds, “One of my favorite things to do in all the world is to cook, so I love being around chefs, cooks, sommeliers, restaurateurs, and the like. God help the cook being interviewed by me! It’s all I can do to not talk about recipes or techniques,” he says with a smile. Better yet, to hear Maretz tell it, his colleagues at Stokes Wagner all share a similar enthusiasm for their work with hospitality clients, which is one reason why so many benchmark establishments such as Four Seasons Hotels & Resorts, Kimpton Hotel Group, Viceroy Hotels & Resorts, the Mandarin Oriental, and Nobu Hotels have come to rely on the experienced employment lawyers at Stokes Wagner. 22 Attorney Journal Orange County | Volume 138, 2017
Origins of the One-of-a-Kind Firm “We trace our roots to a firm that began in San Diego in 1987,” says Maretz. However, since the firm’s inception, it’s fair to say that Stokes Wagner has undergone a unique metamorphosis, transforming into a truly niche firm, with principles, values, and energy unmatched by others in the hospitality law arena. Maretz attributes this evolution to the leadership of renowned trial attorney and name partner Arch Stokes. “He’s our patriarch, and the firm is a reflection of his passion, expertise, and enthusiasm,” says Maretz. “Plus, he’s been trying—and winning—cases forever,” he adds. Indeed, the firm which is comprised of 17 Shareholders, Senior Counsel and Associates, with offices in San Diego, Los Angeles, Pittsburgh, Atlanta, and Ithaca, NY, has a long history of success in trial representing some of the world’s most recognized hospitality brands. That success however, has nothing to do with luck, but is the direct result of the firm’s principles, values, and flat out passion for what they do.
Â© Bauman Photographers
ÂŠ Bauman Photographers
“We are often hired to try the very difficult cases and we believe our success comes from looking at cases differently and presenting them differently. For example, we recently faced one of LA’s known plaintiff’s attorneys in a wrongful termination/ discrimination case on behalf of an iconic 5-Star hotel. We were fortunate to have worked with that particular hotel since its opening, and helped craft its culture. This is not unusual for us, and in discussing the case with jurors following the defense verdict, they relayed that they could not accept that the conduct our client was accused of could exist in the strong positive culture of the hotel. We were humbled by that affirmation,” Maretz says. Helping hospitality brands to build harmonious cultures, is possible due to the firm’s dedication to risk mitigation, through the practice of preventative law. To that end, Maretz says that very specific strategies, principles and practices are in place at Stokes Wagner, to ensure that the attorneys know their clients’ business from A to Z. For example, the flat fee retainer relationship that Stokes Wagner offers fosters frequent communication between clients and attorneys. “By offering reasonable flat fee retainers, we encourage our clients to call us at any time, with any question, without worrying about a meter running,” Maretz says. “We removed the biggest barrier, by encouraging clients to reach out. This makes for smarter clients who call us before issues arise that lead to a lawsuit. We have found this to be incredibly helpful in avoiding many problems. In fact, many of our clients won’t engage in major discipline, or a termination without bringing us in. That’s the advantage of the flat fee retainer. “We want them to call us, and they do.” Moreover, clients can feel comfortable in calling the attorneys at Stokes Wagner day or night as well. “Hotels are open 24/7 and issues arise at any time. That’s why every one of my clients has my cell number, and knows they can call me any time, day or night. Frankly, while I’d much prefer everything was always running smoothly for my clients, I like getting the calls at 1 or 2 in the morning when an emergency arises. My clients know they can look to me in a crisis, and I like that,” he says sincerely. Hospitality clients also feel comfortable calling on Maretz and his colleagues, because they know the attorneys at Stokes Wagner truly understand their operations. That’s in part attributable to the fact that the vast majority of attorneys and support staff at Stokes Wagner have a background in hospitality themselves. However, any who don’t happen to have that background, will get hands-on experience in learning their clients’ business from the ground floor up, through a unique program created at Stokes Wagner. “Not only have many of our attorneys worked in the hospitality field, but we have a program where we send our associates on mini ‘internships,’ where they actually join a client’s workforce and work their business. This affords us an invaluable perspective into our clients’ business.” Stokes Wagner goes even further in getting to know the ins and outs of the clients it represents, in many cases through the use of
the wholly comprehensive 360-degree Lawdit® audit, which was the brainchild of Arch Stokes. “We are the first lawyers to apply a holistic approach to auditing hotels using the Lawdit process,” Maretz says. “We understand our primary job is to prevent problems before they happen. Rather than stoking the flames of conflict, we proactively seek to eliminate risk, by continually developing the best practices within the ever-evolving world of legal compliance in the hospitality industry. It’s just another of many innovative approaches we take to servicing our clients,” Maretz says. Continuing he explains, “We take the time to get to know their people. We understand the heartbeat of the hotel or restaurant. We spend a lot of time in their property, and make it a point to learn their sensitivities, to learn what their goals are, and to get to know the personalities of their staff,” he explains. “This has proven invaluable when lawsuits do arise.”
Successful Cases Speak to Client-Centric Service Though the team at Stokes Wagner are broadly defined as “employment lawyers,” make no mistake, the firm has fierce trial lawyers in its ranks, as evidenced by multiple trial victories on behalf of their clients. Maretz summarizes a few of them. “A career defining case for me was Dupree v. Sajahtera, Inc., a multi-plaintiff case involving an iconic 5-Star hotel in Beverly Hills. It was our first case for that hotel, and we were hired over the hotel’s long-time counsel, a national labor and employment firm. The suit was being followed by everyone at the hotel. The line employees with no direct involvement in the case were deeply interested in the outcome and it was clear they viewed it as a baseless attack on the strong culture they had worked so hard to create. The litigation lasted over 3 years, and the trial took 5 weeks. Our client was elated with news of the defense verdict,” he recalls. In another case, O’Brien vs. Sajahtera Inc., Maretz says the Stokes Wagner trial team pulled out all the stops in court, using a $2,000 bottle of wine as an exhibit. In that case, they again prevailed, in what was the first case, wherein a sommelier was found exempt under the learned professional exemption. Likewise, the team at Stokes Wagner settled a dispute favorably on behalf of Pick Up Stix in Chindarah v. Pick Up Sticks, which established a basis for settling directly with employees in a putative wage and hour class action.
Ethos of the Firm: Energy, Experience, Enthusiasm Although the firm’s success in trial, extra-mile efforts to provide easy access to advice and counsel, and innate understanding of the way its clients operate, are reasons for the firm’s success, none of them would have been possible without the passion driving the people at Stokes Wagner. “Arch deserves the credit for the incredible people at Stokes Attorney Journal Orange County | Volume 138, 2017 25
Contact Peter Maretz Stokes Wagner, ALC One America Plaza 600 West Broadway, Suite 910 San Diego, CA 92101 619.237.0909 email@example.com www.stokeswagner.com
Wagner. He’s been asking potential hires, and even jurors “What is your favorite thing to do in the world?’ for years. We always want to know what makes people tick. We want to know what makes jurors tick, what our clients are passionate about, and what potential hires are passionate about. Of course, we look to hire people who are interesting. But, more than that, we look for people who are interested. I don’t care if it’s sailing or Minnesota wild rice, show passion for things if you want to work with us,” Maretz says. For Maretz personally, a career as an advocate and ally for those in the hospitality industry evolved incredibly naturally, after initially catching him off-guard. “My father was a transactional lawyer, and a very good one. I spent so much time at his office as a kid—whether working there or just hanging out—and I thought what he did was so boring. I knew I’d be anything but a lawyer when I grew up. But when I was in college I took a psychology and the law class, and we studied the psychological aspects of trying a lawsuit. I fell in love with the artistry of being a trial lawyer. I also inherited from my father, an unwavering commitment to client service. He would 100% walk through fire for his clients, no matter what. That was very cool to me then, and I still think it’s what being a lawyer is all about.” Rest assured, Maretz spends his days with like-minded colleagues who feel the same way about the practice of law, and the end result is a culture at Stokes Wagner unlike anything he’s seen in his 27 years of practicing law. “I’m in this firm because I love the people in my firm. I love my partners, the associates and all the staff. I want to work with these people. We are all doing something we love to do. The dynamic in our firm overall, and the San Diego office in particular, is just magic. Everyone gets along amazingly well, and we have so much fun working together. Arch Stokes is a terrific mentor. The opportunities he’s made possible for me, and for all of us are way too numerous to mention. There’s not another lawyer like him. He’s unbelievably well-read, and has an unquenchable thirst for life. It’s just fun being around him.” Maretz feels a similar fondness for the clients Stokes Wagner works with from coast to coast. “I love my clients, and I’m genuinely interested in who they are, and what makes them tick. I crave knowing how their kids are doing, what music they like, what their favorite thing to do in all the world is, you name it.” As far as the future of Stokes Wagner is concerned, Maretz says the firm intends to grow commensurate with the exploding San Diego hospitality industry, but the growth and addition of new attorneys and support staff will be done carefully. “We want to preserve the magic in our firm. We insist on maintaining an environment where everyone is excited about what we’re doing. Where we all enjoy what we do. Of course, you can run a law firm without that palpable feeling of enthusiasm, but why would you want to?” n
» EDUCATION • University of California, Hastings College of the Law, J.D. – 1989 • Executive Editor, Hastings Law Journal • Dartmouth College, A.B. Psychology – 1984
» PRACTICE AREAS • Hospitality Business Disputes • Employment Litigation • Preventive Law • Labor Relations • Federal Contractor Compliance
» HONORS & AWARDS • AV Preeminent Martindale Hubbell Rating, 2017 • San Diego “Top Lawyers” – San Diego Magazine, 2013-2017
» PROFESSIONAL MEMBERSHIPS AND ACTIVITIES
• Member, Board of Directors, California Restaurant Association, San Diego Chapter • Member, Hospitality in Human Resources Association • Member, Society for Human Resources Management
» CALIFORNIA BAR ADMISSIONS • U.S. District Court Southern District of California • U.S. District Court Central District of California • U.S. District Court Northern District of California • U.S. Court of Appeals, 9th Circuit
26 Attorney Journal Orange County | Volume 138, 2017
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Presentation Is Key by Lori McElroy
fter all of the painstaking discovery work that goes into a case, what a win or loss really comes down to is presentation during trial. A successful presentation will prove its point through a combination of words and visuals in a manner that builds confidence and trust with the audience. Attorneys are often very well versed in the art of language, but are not always so comfortable with the creation and use of visual aids. Visual communication can play a major role in persuading how a jury interprets information. Studies show that over a 72-hour period, visual aids can increase viewer retention by 45%! Statistics like this make it obvious that a tool as powerful as visual aids should not be overlooked or underutilized, as it could be the key to ensuring a win. The two most common forms of presenting visually in the courtroom are traditional hard boards and digital projection, both of which have benefits and shortcomings that should be taken into consideration. Traditional hard boards are not given the credit they deserve in the technological society in which we live. Many seem to think that high tech is the way to go, but boards definitely still have their place, and probably always will. However, they do have some faults, such as the fact that they can be cumbersome transporting to, and maneuvering within, the courtroom. They also need to be completely finalized ahead of time, because last-minute edits and reproduction can be problematic. The benefits of boards when applicably used are vast though. There are no surprises or technical mishaps to worry about. Even if boards have an interactive aspect such as flipping pages or dry erase capabilities, their performance is a known entity. In cases that are document heavy, boards are ideal for key exhibits in conjunction with a digital presentation. They remain in front of the jury box, emphasizing their point, burning into the memory of the jurors, and are often taken into deliberation. Boards have an unspoken tangible value due to the increased use of the internet. Technology allows anyone to post anything they want or be anyone they like, from the far reaches of the universe with anonymity. Thus, boards are subconsciously
28 Attorney Journal Orange County | Volume 138, 2017
given more validity, “It’s here, it’s real, I can touch and see it, so it’s true.” Boards also offer an interactive aspect which many disregard. They allow the attorney a reason to get up close and personal with the jury. Pivotal information can be left off and scribbled in by hand for impact and shock value, drama that typing just doesn’t achieve. It also allows for theatrical embellishments such as waving arms, pointing and thumping to emphasize an argument. This sort of passionate execution has an immeasurable impact on jury attentiveness, retention, and the attorney-juror relationship. On the other hand, digital presentations are extremely popular. They are the premium solution for document-rich cases, where not every item is a crucially important exhibit. Pretreatment and on-the-fly customization can be made to exhibits. For example, you can easily highlight and call out one important sentence within a text document so that the jury doesn’t lose focus on extraneous information. Digital presentations are good for maintaining attention (especially that of younger jurors), because they are more similar to watching television or surfing the World Wide Web. The two most widely used trial software programs, Sanction and TrialDirector, have wonderful tools for the organization of documents. Folders can be created for the various stages of trial, and there are various methods of searching to find specific exhibits quickly and easily. One of the most impressive benefits of using these programs is the capability to import video testimony or depositions and have the synchronized transcript scrolling right beside it. Digital presentations are absolutely sensational if done properly, but if not, the consequences can be punishing. Creating a precise presentation magnifies the authors’ responsibilities. First and foremost, they must be completely comfortable with the software and hardware being used, or be willing to hire someone who is. A lot of practice is required in making sure the presentation is seamless and error free. Planning and preparation for any foreseeable problem, such as bringing extra projector bulbs, is a must. The propane always runs out during your game day barbecue, not when you’re just cooking for yourself. Even with all of the rehearsal
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in the world, the potential for computer issues beyond your control still exists. Regardless of the presentation style that works for the attorney, or if it is a combination of the two, there are some key factors to keep in mind for success. A complicated, confusing, or poorly executed presentation can do more harm than good, as it reflects those attributes on the attorney and their client. Train with the chosen media and play to its strengths while working around its weaknesses. All presentations should be clear, simple and brief (a good rule for most things in life). “Our life is frittered away detail . . . Simplify, simplify.” – Henry David Thoreau. n Lori McElroy is the creative director of REDROMAN Creative, a design studio specializing in legal communications. Lori contracts through DTI and Esquire Solutions, consulting with attorneys and paralegals throughout San Diego County, to develop concise and professional corporate identities, marketing materials, newsletters, presentations, proposals, and trial exhibits.
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30 Attorney Journal Orange County | Volume 138, 2017
My goal is to help my clients identify, understand and conquer their business-related legal risk. Gregory M. Clement, Partner BKCG
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Attorney Journal, Orange County, Volume 138