Attorney Journal, San Diego, Volume 138 by Attorney Journals

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Volume 138, 2015 • $6.95

Attract & Retain

Mike O’Horo Understanding and Working with Anxiety

Jeena Cho

Why a QDRO is Needed and Common Pitfalls Awaiting the Unwary Family Law Attorney

Marc S. Schechter The President’s Executive Action on Immigration: What Does it Mean?

Understanding People’s Natural Fears

Tom Hopkins McIntyre’s Civil Alert

Monty A. McIntyre

Mitch Wexler

20 Law Practice Empowerment Tips

Peggy Gruenke & Alan J. Klevan Law Firm of the Month

Smith & Scatizzi MOVING LIFE FORWARD

2015 EDITION—NO.138

TABLE OF CONTENTS features

6 Attract & Retain by Mike O’Horo

10 Understanding and Working with Anxiety by Jeena Cho

12 COMMUNITYnews 14 The President’s Executive Action on Immigration EXECUTIVE PUBLISHER Brian Topor

What Does it Mean? by Mitch Wexler

EDITOR Wendy Price

CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson

STAFF WRITERS Monty A. McIntyre Marc Schechter Mike O’Horo Mitch Wexler Tom Hopkins Peggy Gruenke Alan J. Klevan

WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

Moving Life Forward by Jennifer Hadley

22 Why a QDRO is Needed and Common Pitfalls Awaiting the Unwary Family Law Attorney

PHOTOGRAPHY Bauman Photographers

CONTRIBUTING EDITORIALISTS Johnny Lee Norm LaCroix Roger Neu Monty McIntyre

LAW FIRM OF THE MONTH

16 Smith & Scatizzi

by Marc S. Schechter

24 McIntyre’s Civil Alert by Monty A. McIntyre

26 Understanding People’s Natural Fears by Tom Hopkins

28 20 Law Practice Empowerment Tips by Peggy Gruenke and Alan J. Klevan

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 2014 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

It wasn’t all that long ago that lawyers’ concept of turnover was limited to showing empathy when their corporate clients bemoaned its disruptive effect and insidious cost. A client moving down the street was rare. Like other symbols of the cherished days of expanding demand, what the American lawyer called the Golden Age of law firms, client turnover is now a daily threat. These days, the name of the game is attract and retain. Each year, roughly 20 percent of successful firms’ clients disappear. This means that 20 percent of your hard-earned marketing and sales success is consumed simply staying even. There are many reasons for this. Some have nothing to do with how well you served those clients and aren’t controllable, e.g., consolidation, failure, relocation, etc. It is said that ours is an 80-20 world, meaning 80 percent of any effect is from 20 percent of the causes. Law firms’ difficulty in getting and keeping clients stems from the following causal factors.

DON’T UNDERSTAND CLIENT’S BUSINESS This is the biggie. In survey after survey, and GC panel after GC panel, clients consistently bemoan their primary outside law firms’ lack of knowledge about their business. This frustrates clients because they expect these firms to bring fresh thinking and creative ideas to the table; that’s hard to do when you don’t understand the game the client is trying to win. That also translates into direct overhead, as clients must pay those lawyers by the hour to learn how to be relevant.

NO DIFFERENTIATION

Attract & Retain by Mike O’Horo Mike O’Horo is a “serial innovator” in the law business. His current venture, RainmakerVT (www.rainmakervt.com), is the world’s first interactive online rainmaking training for lawyers, by which lawyers learn how to attract the right kind of clients without leaving their desks. For 20 years, Mike has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com.

Most firms’ messages are variations on the “Quality Legal Services/We’re Great Lawyers” theme, and too many firms assiduously avoid attracting attention, preferring to look just like the other “quality” firms. Research indicates that corporate buyers think all established firms are of relatively equal quality, and can’t appreciate the minor distinctions that lawyers cite in intramural discussions.

TOO FEW LAWYERS SELLING A small group of rainmakers brings in most of the business. Most everyone else services those clients and assumes that enough business will continue to show up somehow – after all, it always has. This “rainmaker,” “rain-catcher,” “mistmaker” culture is costly, especially now that rainmakers are demonstrating their willingness to move to greener pastures where their book will yield them a bigger piece of the profit pie.

CHASING FOOL’S GOLD All sales opportunities are not created equal. In fact, research reveals that, in 30 percent of selling situations, nothing is purchased, no decision is made. No law firm has a 30 percent market share, so we lose to competitors far less frequently than we lose to “No Decision.” Few lawyers know how to qualify and avoid investing precious time on a stillborn sales initiative. Fewer still have much of an appreciation for the concept of cost-of-sales.

PITCHING Pitching is telling a prospect all about your firm, your services and yourself, and hoping that the innate attractiveness of your firm and its services will motivate the prospect to go through the cost and dislocation of replacing an incumbent. Selling means using the questioning and listening skills that made you a great lawyer, in a disciplined way, to learn which of this prospect’s many problems and challenges are not being solved satisfactorily. Learn which problem this prospect already wants to say “Yes” to having help with.

TUNNEL VISION This means looking for business only in your own practice area, e.g., tax lawyers looking only for tax work, employment lawyers seeking only employment work, etc. 6

Attorney Journal San Diego | Volume 138, 2015

One corporate lawyer, seeking to groom biotech startups, had begun a relationship with a university’s business incubator. During a coaching session, he complained of a recent meeting at which the department heads kept steering the discussion back to a technology transfer problem. Exasperated, this lawyer told me: “But I wanted to talk about getting into the incubator’s startup stream.” Accepting technology transfer as the easy entry point and bringing in his IP colleagues didn’t occur to him.

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FAILURE TO CROSS-SELL Studies show that, on average, firms’ Top 100 clients buy only a handful of the two dozen services typically offered. Tunnel vision is a major cause of this failure, but so is the productorientation that prevents lawyers from seeing that demand for their services is based on the importance of the underlying business problem that the client must overcome or control, not on how skilled they are as lawyers.

NEW PARTNER SHOCK Even today, despite a decade of evidence of the criticality of business acquisition, some newly-minted partners still awaken belatedly to the harsh reality that partnership includes developing business, whether the firm and they have prepared for it or not.

PRODUCT CYCLE BLINDERS Law firms are premium-priced manufacturers of custom products tailored to client needs. But needs change. Nothing is in demand or commands a premium price forever. Lawyers must learn how to recognize emerging needs that yield great value and command premium prices.

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Despite two decades of marketing evolution, some law firms still fear that bold, assertive sales and marketing will alienate their clients. But, those same corporate clients invest billions in sales and marketing. They know it’s critical, and they know it works. Law firms have always sought the best people. Now, the definition of “best” has changed. Besides top legal work, the best need marketing and sales skills that once were a luxury, found only in what were (falsely) perceived as “natural” rainmakers. What was once the ceiling is now the floor. Lawyers know the importance of these skills, and they know they must acquire them—either at their current firm or at another one. Progressive law firms are overcoming obstacles to attracting and retaining clients through proper business development education, training and guidance. Education provides the knowledge and a common language with which to propagate it. Skill building requires coaching and continuous guidance while the skill is practiced. Ideally, lawyers apply sales and marketing lessons in real situations, guided by the unseen hand of their coach. Today, marketing, sales and client service training is a strategic tool that, used consistently, delivers dramatic results. And, winning is a great learning tool. Learn now. The first-est get the most-est. n

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Attorney Journal San Diego | Volume 138, 2015

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UNDERSTANDING & WORKING WITH

ANXIETY by Jeena Cho This was originally published on Lawyerist on July 29, 2014.

ace it: anxiety is a part of your life. As lawyers, we are constantly pressured to deliver results for our boss, opposing counsel, the court, and most importantly, our clients. Regardless what can be controlled, we are expected to foresee what could go wrong with every correspondence, motion, hearing, email, settlement agreement, and contract. It is no wonder that so many lawyers suffer from anxiety, among other illnesses. For most lawyers, anxiety is just another facet of life. In our do more culture, this means billing as many 0.1 increments as possible. Often, we do not realize how much stress we are under until we go on vacation—assuming we left our computers and phones behind. Despite the prevalence of anxiety among lawyers, we rarely discuss healthy ways of managing it. To learn more about anxiety, I reached out to Joe Gilbert, a Licensed Professional Counselor in Raleigh, NC. Gilbert says: Our brains are hardwired to scan our environment for potential threats. This served a purpose when our cavemen/ cavewoman ancestors faced legitimate threats of starvation, attack by another tribe, or being an appetizer to a large animal. “Fight or flight” was necessary to stay alive. Thinking about anxiety as an evolutionary response is helpful, as we often try to understand our anxiety from a logical place. According to Gilbert: Most of us don’t face matters of life or death on a regular basis, [yet our] brain still tries to justify why we are feeling anxious. We may wake up feeling restless, irritable, or worried, and then our brain tells us “there must be a reason for this!” and works hard to find an answer to justify these feelings. In our culture of “knowing,” we believe that

Attorney Journal San Diego | Volume 138, 2015

if we can find the logical answer, then we’ll feel better. Unfortunately, logic and analytics don’t always apply to human behavior. Often, stress and anxiety fuels our motivation and drive. As a caffeine-fueled insomniac, I was certainly no exception. I would suffer from stomachaches starting on Sunday evening, which mysteriously subsided in time for Friday happy hour. However, I did not see this as a problem, as many lawyers I knew also lived this way. Our anxiety gives us a feeling of purpose and meaning; after all, the work must be important if it is making us miserable. After nearly a decade of living with persistent anxiety, I finally took action, and found healthier ways of working with anxiety. I started practicing mindfulness and meditation daily, and went through cognitive behavior therapy. What I know now is that debilitating anxiety does not have to be a part of law practice.

TIPS FOR HEALTHY WAYS OF RELATING TO ANXIETY Breathe. Breathe. And Breathe: This is Gilbert’s first piece of advice, and has consistently worked for me. Our breath is a gift that is always under our nose. It is an anchor in stressful situations, and reminds us that we are living beings, not machines that are supposed to run perfectly. Reciting a mantra or prayer can help as well. Two of Gilbert’s favorites are: “This too shall pass” and “Easy does it.” Smile: Smiling loosens up the facial muscles and helps us relax. Focus on where the tension is in your body. Many of us carry anxiety in our forehead, throat, shoulders, chest, abdomen, and hands. If we can relax those parts of our body, it might help relax our mind as well.

Honesty: One of the most powerful—and paradoxical—tools we have at our disposal is being honest, and naming what we feel. A surefire way to diffuse anxiety is to name it. Change Your Behavior: Gilbert offers the following mantra to his clients suffering from anxiety, “Move a muscle, change a thought.” If you are having an anxious thought, chances are that further rumination is unnecessary. Go for a walk or a run. Talk to a friend. Pick up a pen and journal. Toughing it out or fighting through anxiety may be a way to avoid the underlying issue. He encourages people to “put down the boxing gloves, and learn to dance with anxiety.” Write Your Worries: Slow your thoughts down to the speed of writing by journaling (with pen and paper, not on a computer). Ask for help, even though this can be hard. Talk with a trusted friend. Everybody experiences anxiety, even if they have a different word or definition for it. Good vs. Bad: According to Gilbert, labeling anxiety as bad can actually make it worse. In the field of mental health, there is a saying that may help explain this: “It’s not important how you feel, but how you feel about the way that you feel.” So when I feel anxious do I add a layer of judgment to this feeling? Am I mad at myself for feeling anxious? Do I believe I shouldn’t feel anxious? Rather than thinking about anxiety in terms of “good vs. bad,” I suggest focusing on healthy or unhealthy ways of relating to our inevitable anxiety. 2014 Fragomen Attorney Journal - 2nd Proof.pdf 1 11/16/2014 4:55:42 PM

Back to Basics: It is important to maintain adequate sleep

(typically 8 hours a night), exercise regularly, eat healthy foods, drink plenty of water, and cut out vices such as sugar and tobacco. Try meditation, yoga, or another form of mind-body awareness practice.

KNOWING WHEN TO GET HELP How do you know when it is time to get help for your anxiety? “If you’ve been using the tools mentioned above for 90 days, and you still feel that anxiety is causing significant problems in your life domains [family, work, social, physical], seek professional help,” says Gilbert. I was not aware of how anxious I was until I learned to stop living with it. Today, I feel grounded, happier, and at ease. It was not an easy process. Having spent over a decade with anxiety, it was a part of my life and identity. However, the payoff from getting help was immense. I no longer suffer from insomnia, headaches, backaches, or stomachaches. Additionally, I am a better lawyer because I can stay calm and present in difficult situations. Start addressing your own anxiety with these tips from Dr. Gilbert, and seek help if you need to. n Jeena Cho is a partner at JC Law Group PC, a bankruptcy law firm in San Francisco, CA. In addition to her legal practice, Jeena teaches mindfulness and meditation to lawyers. Her second book, The Anxious Lawyer (ABA), will be released in 2015. You can find her on Twitter @jeena_cho.

Attorney Journal San Diego | Volume 138, 2015

COMMUNITY news nCrosbie Gliner Schiffman Southard & Swanson LLP (CGS3) announced today the addition of Amelia Sanchez as Senior Counsel. Sanchez brings to CGS3 more than 18 years of commercial real estate and transactional experience representing national, regional and local companies. She has deep expertise in supporting and advising AMELIA SANCHEZ business clients on real estate portfolio and asset acquisitions, dispositions and a variety of leasing transactions including office, retail, industrial, flex and telecommunications leases. As former Senior Legal Counsel handling the real estate interests of Cricket Communications, Inc. (now Cricket Wireless) and former Regional General Counsel for the northwest territory of Newland Communities, LLC, Sanchez also has an intimate understanding of what it takes to “get deals done” in ways that meet the business needs of the clients she represents. She graduated from Dartmouth College with a Bachelor of Arts degree in Psychology. She earned her J.D. from the University of San Diego School of Law. nMelissa N. Engle joined Bellatrix PC as a litigation and employment law associate. Ms. Engle comes to the firm with a background in intellectual property, litigation and trial work. Ms. Engle also teaches at the University of San Diego and Southwestern Community College courses in Intellectual Property Law, Legal Research and Civil Litigation MELISSA N. ENGLE Procedures. Bellatrix PC is a woman-owned law firm with offices in Saint Louis, Missouri and San Diego, California. The firm handles civil matters in all areas of business, employment, real estate and election law, including trials, appeals and general counsel work. Bellatrix PC’s clients come from a diverse portfolio of industries such as manufacturing, restaurants, political, retail, software, and human capital.

Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us

nPatrick E. Monroe, of counsel in the San Diego office of Best Best & Krieger LLP, has been appointed to the State Bar of California Business Law Section Corporations Committee for a four-year term. Monroe will work to educate members of the Bar on recent developments and current issues in all fields of corporate law, as well as help the Corporations PATRICK E. MONROE Committee communicate with the general public, the California Legislature, regulatory agencies, business trade associations and other interested groups. Monroe’s legal practice focuses on providing corporate lawrelated legal services to privately owned businesses and nonprofits, with an emphasis on mergers and acquisitions, corporate transactions and intra-company dispute resolution. In addition, Monroe represents clients, ranging from start-ups to mature companies, in a variety of legal matters, including contracts, entity formation, corporate governance, licensing, intellectual property, fundraising, securities and tax matters. Before becoming an attorney, he held senior management positions for 10 years in both small businesses and Fortune 500 companies. nSolomon Ward Seidenwurm & Smith, LLP is pleased to announce that Mark Angert has been made a partner of the firm, effective January 1, 2015. After obtaining a degree in Neuroscience and Mammalian Physiology from University of California San Diego, Angert traveled the world working for MARK ANGERT M&M International Trading Corporation. While at M&M International, he led the development of that company’s subsidiary, Golden Brazil, a coffee manufacturing and trading company. Angert made Golden Brazil a multi-million dollar international success, which was eventually spun-off. While at M&M International, Angert became a co-owner of both companies and eventually committed his full time to the practice of law. At Solomon Ward, Angert represents various clients in business disputes locally and abroad, ranging from breach of contract and breach of fiduciary duty disputes, to intentional interference claims and fraud. In addition to legal skills, Angert’s business background allows him to obtain unique, efficient and effective results for his clients, and his fluency in Russian and ability to speak several languages has proved to be a valuable asset for many clients.

Attorney Journal San Diego | Volume 138, 2015

COMMUNITY news nPartner Jim Peterson, with Higgs Fletcher & Mack, and his family were recently named the 2014 Make-A-Wish San Diego’s “Friends and Family” honoree. The recognition was based on all of their contributions this past year after being introduced to the JIM PETERSON AND HIS FAMILY organization when their daughter, Tina, battled non-Hodgkin’s lymphoma. Since then, the entire family has gotten involved in MakeA-Wish. Tina has become an unofficial Make-A-Wish “ambassador” and is presently an intern in their wish-granting department while studying business and music at San Diego State University. Kim Peterson is a founding member of the organization’s “Wish Circle,” a group of women. Last April, Jim was elected to the Make-A-Wish Foundation San Diego Board of Directors and is the only “wish parent” currently doing so. Tina’s older sister, Danielle, also volunteers for the organization as a “wish granter” and in various other capacities. nThe San Diego Legal Secretaries Association (SDLSA ®) recently announced Lawrence (Larry) Kouns of McKenna Long & Aldridge, LLC as winner of SDLSA®’s 2014 Boss Cum Laude award. Mr. Kouns is a trial partner in the Business/ Complex Litigation practice group at McKenna, and was nominated by his legal secretary of 19 years and LAWRENCE KOUNS SDLSA® member, Renee Evans. “As an experienced and accomplished litigator, [Mr. Kouns] has a true appreciation of and respect for the law,” stated Ms. Evans in her Boss Cum Laude entry essay. “He conducts himself with the utmost integrity, is committed to learning each client’s wishes, and communicates very effectively. Our clients have complete trust in him.” In her entry, Ms. Evans also highlighted Mr. Kouns’ availability to fellow attorneys and staff, and his longtime community involvement, including support of the Helen Woodard Animal Center, Imperial Beach Elementary School Playground Project, and SDLSA®. Past winners of the award include Hon. David M. Gill, Hon. Rudi M. Brewster, Hon. Leo S. Pappas, Ret., Daniel L. Stanford, Esq., Cary W. Miller, Esq., R. William Bowen, Esq., and Douglas A. Glass, Esq.

nWilson Turner Kosmo LLP, has received four 2015 Tier 1 Metro rankings from U.S. News— Best Lawyers in the categories of Employment Law Management; Labor Law Management; Litigation – Labor & Employment; and Product Liability Litigation—Defendants. Achieving a Tier 1 Metro ranking CLAUDETTE WILSON signifies that a firm has a combination of a quality law practice and breadth of legal expertise in the geographic region in which it practices. “We are honored to once again be recognized by U.S. News—Best Lawyers in our key legal practice areas,” states Wilson Turner Kosmo founder and partner Claudette Wilson. “As these rankings are based upon feedback from our clients and peers, we are especially pleased to be selected.”

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Attorney Journal San Diego | Volume 138, 2015

The President’s Executive Action on Immigration What Does it Mean? by Mitch Wexler Mitch Wexler is a Partner with the international immigration law firm, Fragomen, Del Rey, Bernsen & Loewy, LLP. He manages the firm’s Irvine & Los Angeles offices. He has been practicing immigration law for over 29 years and is a Specialist in Immigration & Nationality Law, certified by the State Bar of California, Board of Legal Specialization. He welcomes all queries to mwexler@fragomen.com or (949) 660-3531. You may also contact Gary Perl in the San Diego office at gperl@fragomen.com or (858) 793-1600.

On November 20, 2014, President Barack Obama announced a number of administrative fixes to the enforcement and process of US immigration law that could positively affect noncitizen family members who do not have lawful immigration status. There are also numerous employment-related provisions that are not the subject of this article. On the family-based front, the President’s message was that the US government was going to use its resources to deport “felons, not families.” After these changes in enforcement priorities, there are three programs that could greatly benefit undocumented immigrants who have significant ties in the US: (1) Deferred Action for Parental Accountability (DAPA); (2) an expansion of Deferred Action for Childhood Arrivals (DACA); and (3) an expansion of a “stateside Provisional Waiver.” If you are no longer in lawful immigration status or never had lawful immigration status, depending on your circumstances, you may qualify for one or more of these programs. Both DACA and DAPA are nearly identical in terms of the benefits derived from these programs. Successful applicants for both programs will receive relief from deportation and a work permit for three years. If DAPA is like DACA, it will be renewable after the initial approval period. Additionally, there is a possibility that DACA and DAPA recipients can receive permission from the Department of Homeland Security (DHS) to return home and reenter the US without forfeiting their newly acquired legal status. To qualify for DAPA, the foreign national must have (1) a US Citizen or lawful permanent resident (LPR) child; (2) five years of physical presence in the US; (3) not be deportation priority (including not having certain criminal convictions); and (4) have paid taxes. DACA requires a similar set of considerations, except the noncitizen must have been physically present in the US since before the age of 16 and have graduated or be currently enrolled in high school at the time the application is filed. Fortunately, DACA expanded its eligibility from people who were 31 and younger at the time of the initial announcement to anyone at any age, so long as they entered

Attorney Journal San Diego | Volume 138, 2015

before turning 16. Additionally, the DACA validity period was expanded from two to three years. It is important to note, however, receiving relief under DACA or DAPA is not the same as having a green card and, though unlikely, the programs could be cancelled by future presidents. President Obama also expanded the class of eligible people for the stateside waiver program. Under some circumstances, marriage to an LPR or US citizen will not enable the foreign national to apply for a green card in the US. If the noncitizen does not qualify to receive their green card in the US, foreign nationals will need to return to their home country and apply at the consulate. Unfortunately, depending on the circumstances of entering the US and of the amount of time resided in the US without permission, a noncitizen may be subject to a 3/10 bar upon exit of the US. There is a waiver for the 3/10 bar, but that process can be lengthy and in some cases take up to 18 months. The significant amount of time being separated from many foreign nationals’ loved ones served as a deterrent to applying for this waiver. Thus, in January 2013, President Obama announced a provisional waiver that would allow qualified applicants to wait for their consular interviews inside the US. One of the biggest criticisms of the initial program was that only foreign nationals with US Citizen Spouses could request the waiver, though green card holders could also request a waiver for their spouse, if the undocumented spouse without status was willing to wait outside the country. Fortunately, the Obama Administration changed the rules on who can apply to be in line with the consulate rules. Now, a US Citizen Spouse or an LPR Spouse, whose visa is immediately available, can file for a waiver of the 3/10 year bar and the undocumented spouse can remain in the US while waiting for the green card interview at the US consulate abroad. Although highly controversial, through these programs President Obama is making strides to create an immigration system that tries to keep families together and to give people with deep roots in the US an opportunity to stay. n

MOVING

LIFE

FORWARD

At the family law firm of Smith & Scatizzi, LLP, the power of forwardthinking women coupled with big firm experience helps families to successfully navigate their way through challenging times. by Jennifer Hadley

“O

ur approach isn’t clinical, it’s human,” says Rachel Scatizzi, partner at Smith & Scatizzi, LLP. “Our entire team of five women has been touched by family law in some way, so our personal experiences supplement our legal training to give our clients the most well-rounded and thoughtful approach to helping them through the pain of some of their darkest times. We know how difficult this is for our clients and that understanding forms the foundation of our approach to the practice of family law,” she adds. Partner Marnie Smith adds, “Family law comprises 100% of our practice. We offer a full range of legal services within that niche, including divorce and legal separation, child custody and visitation, child support, spousal support, complex asset division, domestic violence restraining orders, paternity, negotiation and review of marital settlement agreements, and pre-marital, post-marital and cohabitation agreements.” Smith, who is also a certified mediator through the National Conflict Resolution Center, continues, “In addition, our family law practice also extends into guardianship, adoption and assisted reproductive technology (ART) fields that most general family law practitioners shy away from. Over the past five years, Rachel has traveled the country receiving training on adoption, surrogacy contracts, and sperm/egg donation agreements. ART is a cutting edge arena, with new law emerging seemingly every month. We are proud to be one of the first family law firms in San Diego to offer this expertise.”

PERSONAL FORWARD MOMENTUM What’s perhaps most unique about Smith & Scatizzi is that neither partner set out to become family law attorneys. Raised along with her twin sister by a single father for several years, 16

Attorney Journal San Diego | Volume 138, 2015

Smith recalls watching The Paper Chase as a young girl. “Professor Kingsfield’s line about students entering law school with a skull full of mush and leaving thinking like a lawyer was compelling to me. I decided to become a lawyer when I was 12, and it stuck.” Scatizzi says, “As a journalism major at the University of Missouri, I had to take a course on communications law. Most of my classmates literally slept through it but I found it fascinating. Family law is a far cry from the First Amendment law work I set out to do, but I wouldn’t have traded the path I took to get here for anything.” That path is remarkably similar to Smith’s, which was the basis for the friendship that eventually emerged between the women as the result of working together as civil litigators. Indeed, both Smith and Scatizzi spent many years in a vastly different practice area. In fact, Smith, formally a partner at Seltzer Caplan McMahon Vitek (SCMV), was assigned as Scatizzi’s supervisor when Scatizzi came to the firm as an associate in 2007. “The mentoring and experience we received at SCMV was invaluable. We both trained under one of San Diego’s most legendary practitioners in a large local practice,” Smith says. Though both enjoyed their work as civil litigators, each had their own experiences with family law, which made them begin to consider the possibility that transitioning to the field would not only be satisfying for the attorneys, but would bring the San Diego legal community a new type of family law attorney. “We came from a big firm that handled complex, multifaceted litigation. So we have a wealth of knowledge and skill in areas such as the Evidence Code, discovery, the Code of Civil Procedure, and we think like civil litigators,” Scatizzi says. “When it comes to dividing assets and money between parties, family law is not all that different from litigating a business dispute.”

LAW FIRM

OF THE MONTH

2015 2014

Attorneys Rachel Scatizzi, Marissa McArthur and Marnie Smith

Still, Smith and Scatizzi both admit they more or less fell into the practice of family law. “My mentor, Jerry McMahon, asked me to help on a family law case, and I happily waded in and never left. I found it to be more rewarding than any other area of law I had practiced,” says Smith. Similarly, despite having dropped her family law course in law school to make more time for trial competition, Scatizzi likewise had the opportunity to dabble in family law while she was working for a former firm in St. Louis, MO. “It was such a natural fit for my personality,” she says. After six years of working closely together on nearly all of their cases at SCMV, Scatizzi says, “We realized our approach and style had grown exceptionally compatible and we’d also become good friends. Several times over the years we had discussed in a big picture sense what opening a boutique family law firm would look like.” Smith adds, “The driving force behind our decision to go out on our own was a sense that we had reached a point in our careers at which we had the training to run a successful firm and there was no time like the present to implement our vision of offering big firm expertise with small firm attention.” Admitting that it was a difficult decision to leave their previous firm, Scatizzi says, “Ultimately we wanted to be able to offer our services to a broader range of clients and to do it in a smaller environment. It was time to move forward. We are proud to still work closely with SCMV, including serving as cocounsel on a number of cases, and remain grateful to the firm for giving us the tools to help us succeed.”

FORWARD-THINKING FAMILY LAW FIRM “We had a lot of credibility when we launched Smith & Scatizzi,” says Smith. “We had a strong base of clients, and we 18

Attorney Journal San Diego | Volume 138, 2015

weren’t just two young attorneys starting our own firm. We also decided to continue to focus exclusively on family law, so referring attorneys never had to worry that their clients would come to our firm for other legal services.” Scatizzi also explains that they held themselves accountable to a few guiding principles. “We started our firm with the goal of being as green as possible. We are paperless for the most part, everything is scanned and saved on a secure cloud server then shredded or recycled so we do not accumulate reams of paper in our file cabinets. We do not maintain a file room or an onsite server. We also use technology to make our lives and our clients’ lives a bit easier. For example, our phone system allows us to send and receive text messages and faxes to our direct number using our cell phones so we can conduct business anywhere we have cellular reception. Our billing system is also entirely electronic, and we are continuing to explore e-signing options to save our clients’ time and money.” Smith and Scatizzi’s practice quite frankly exploded from the start, and it is partly due to a natural division of labor commensurate with each partner’s respective strengths. “Because we were mentored by the same lawyer, our litigation styles and courtroom personalities are quite similar,” says Smith. “Within our firm, however, we’re yin and yang. My background in finance lends itself to serving as the firm’s managing partner, responsible for looking after our bottom line. Rachel’s advertising degree and community volunteer experience uniquely qualify her to handle our marketing and business development.” Scatizzi adds, “While we both have a great deal of training and experience in all areas of family law litigation, we have a time-tested and client-approved style of teamwork.” To that

end, Smith & Scatizzi has added additional team members as the firm has continued to grow. That team included Marissa McArthur, associate, who has practiced exclusively in the field of family law for five years. Danielle Vasquez serves as the team’s file clerk, while Suzanne Mascarena’s responsibilities include serving as secretary, paralegal and office manager. Continuing, Scatizzi says, “We were lucky in that we already knew each other well and had worked together for years before venturing out to start Smith & Scatizzi. The five of us are a close-knit group with years of both friendship and shared work history. The trust and affection our team shares make coming to work a pleasure. We have such a strong sense of camaraderie and loyalty. We have built a true teamwork approach that enables us to give our clients the attention they need, whenever they need it, while maintaining balance in our own lives.” As a team, Smith says that all five women meet regularly to informally brainstorm and to formally update one another on the status of cases in trial. “We all know what is going on with each case. A client will not be told that his or her attorney is out of the office, so we cannot help. We jump in for one another, and consider everything we do to be very much a team effort.” In regards to the fact that the team is entirely women, Smith says that it wasn’t, in the slightest bit, intentional, but the women are now proud of the fact. “I don’t exactly know how we became an all-women firm. It just kind of happened, and one day we looked around and realized it was all women, and since then we’ve embraced it.” The team at Smith & Scatizzi, LLP has also embraced the fact that they are fulfilling their goal to take on cases that perhaps would not have made sense for larger firms to take. “We have a good range in our rates, and we are able to take on a broad array of cases,” Scatizzi says. She reports that the majority of the

The all-women legal team of Smith & Scatizzi (left to right): Danielle Vasquez, Suzanne Mascarena, Marnie Smith, Rachel Scatizzi and Marissa McArthur

firm’s first-time clients are referred from past clients or word-ofmouth referrals. “Marnie and I were trained that if you do good work, the clients will come, and they have. In addition, other attorneys know we are not a threat to their business, because we only practice family law, so they have referred a lot of cases to us.” Furthermore, as a forward-thinking firm, the attorneys at Smith & Scatizzi are incredibly dedicated to serving the San Diego community and the legal community as a whole. Both Scatizzi and McArthur are heavily involved in the Junior League of San Diego (JLSD)—which works in the community, in part, to train women to be leaders and volunteers—with Scatizzi having served three terms on the Board of Directors and Executive Management Team as the Vice President, Fund Development Director and Nominating Chair. McArthur has served as the chair of one of JLSD’s most note-worthy fundraising events and as the leader responsible for recruiting new members to the organization. For her part, Smith helped run the Lawyer’s Club golf tournament for years, while Scatizzi served three years on the Women’s Resource Fair Task Force.

MOVING THE FIRM INTO THE FUTURE “We started our practice with the idea that we could take our big-firm training and couple it with the attention and kindness clients receive in a more intimate environment, to offer family law representation unlike any other firm in San Diego,” says Scatizzi. The fact that both Smith and Scatizzi recently were certified as Family Law Specialists by the California State Bar Board of Legal Specialization serves as testament to just how serious they are about being on the forefront of their chosen field. “With over 30 years of experience amongst our attorneys and over 30 years of experience amongst our administrative staff, there is no facet of family law that we have not handled.”

Contact: Smith & Scatizzi, LLP www.smithscatizzi.com rms@smithscatizzi.com 619-344-0440 600 B Street Suite 2150 San Diego, CA 92101 20

Attorney Journal San Diego

The partners’ personal resumes speak to this accomplishment as well. The attorneys at Smith & Scatizzi have been celebrated as San Diego Top Family Law Attorneys, Super Lawyers Rising Stars, and San Diego “Women Who Mean Business.” They have handled numerous appellate matters in state and federal courts, have published cases, and have been featured speakers on topics ranging from “Estate Planning from a Divorce Attorney’s Perspective” and “Legal Ethics in California.” With such a meteoric rise in just two years, what do Smith and Scatizzi have in store for the future? “We have already seen growth beyond our expectations in the first two years our firm has been open,” says Scatizzi. What started in the spring of 2013 as two women meeting with clients in coffee shops while their office space was built out, and wearing all of the hats of office management, has turned into team of legal powerhouses with three lawyers and two administrative professionals. “Our downtown office space has already grown too small, and we are working on expanding both sides of our suite to add additional conference rooms and offices. We anticipate bringing in another paralegal and one or two more administrative professionals. If our firm and case load continues to grow at the rate it has over the first two years, we will bring in another associate attorney,” says Smith. Suffice it to say, Smith and Scatizzi are both incredibly humbled by their success, and grateful for the referrals, and support from the San Diego legal community. Scatizzi sums up the primary cause of such success so quickly by simply saying, “It is true. When you give your heart to your work, people can tell.” n

EXPERIENCE MARNIE SMITH

RACHEL SCATIZZI

» EDUCATION & EMPLOYMENT

BACKGROUND

• Bachelor of Science in Finance, 1993, California State University—Sacramento • Juris Doctorate, cum laude, 1996, University of the Pacific McGeorge School of Law • Trained as a mediator by the National Conflict Resolution Center • Significant experience in family law and complex business litigation • Practiced at Magana, Cathcart & McCarthy in Los Angeles and was a shareholder at Seltzer Caplan McMahon Vitek in San Diego prior to founding Smith & Scatizzi, LLP in 2013 • Has handled numerous appellate matters in state and federal court, including the California Second and Fourth Appellate Districts, the California Supreme Court, the United States Ninth Circuit Court of Appeal, the United States Second Circuit Court of Appeal and the United States Supreme Court • Publications include Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332.

» HONORS • Named one of 2008’s top family law attorneys by the San Diego Daily Transcript

» PROFESSIONAL & COMMUNITY AFFILIATIONS & ADMISSIONS

• Admitted to the State Bar of California, the U.S. District Court for the Southern District of California, the U.S. District Court for the Central District of California, the U.S. District Court for the Northern District of California, and the U.S. Ninth Circuit Court of Appeal • Certified Family Law Specialist • Member of Lawyer’s Club of San Diego, San Diego County Bar Association, and the San Diego Family Law Bar Association • Has been a featured speaker on “Estate Planning from a Divorce Attorney’s Perspective,” “Women in the Law,” “Navigating Waivers, an Ethics Presentation,” and “Legal Ethics in California”

BACKGROUND

• Bachelor of Journalism in Advertising, magna cum laude, 2001, University of Missouri—Columbia • Juris Doctorate, 2005, Washington University in St. Louis School of Law • Practiced at Carmody MacDonald in St. Louis, Missouri, where she also served as the firm’s pro bono coordinator, and at Seltzer Caplan McMahon Vitek in San Diego prior to founding Smith & Scatizzi, LLP in 2013. • Clerked for the Hon. Michael J. Reagan of the U.S. District Court for the Southern District of Illinois and with the United States Attorney’s Office for the Southern District of Illinois.

» HONORS • Named a 2015 Super Lawyer’s Rising Star, an honor which is bestowed on no more than 2.5% of lawyers in the state • Named as a finalist for the 2014 San Diego Business Journal’s “Women Who Mean Business” Awards • Named one of 2011’s Top Young Attorneys by the San Diego Daily Transcript • Received the Milton F. Napier award for Excellence in Trial Advocacy in St. Louis in 2005

» PROFESSIONAL & COMMUNITY AFFILIATIONS & ADMISSIONS

• Admitted to the State Bar of California, the State Bar of Missouri, the State Bar of Illinois and the United States District Court for the Eastern District of Missouri • Certified Family Law Specialist • Has been a featured speaker on topics such as “Intellectual Property Rights Under a Community Property Regime” and “Planning for a Stable Financial Future,” and, outside the law, regularly speaks to women’s groups and organizations regarding work/life balance, as well as promoting voluntarism and women in leadership in community organizations

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DTIGlobal.com Attorney Journal San Diego | Volume 138, 2015

In most cases, a married couple’s wealth is typically measured by their home, automobile, and pension assets. Because homes and automobiles are generally encumbered, a couple’s pension is often the single most important marital asset. As the divorce rate continues to rise, so does the concern about the proper division of marital property. As a result, family law practitioners should be placing a high priority on pension issues when dividing the marital assets.

WHY A QDRO IS NEEDED AND COMMON PITFALLS AWAITING THE UNWARY FAMILY LAW ATTORNEY by Marc S. Schechter Marc S. Schechter has been an ERISA/employee benefits and business law attorney for thirty years. He has extensive experience in drafting all types of qualified retirement plans, fringe benefit programs, and stock option plans. He has provided counseling to a wide variety of clients and non-benefits law legal counsel relating to employee benefits issues, fiduciary responsibility, prohibited transactions, and, since the passage of the Retirement Equity Act in 1984, QDROs. For more information visit: www.bsllp.com or email: mschechter@bsllp.com.

Attorney Journal San Diego | Volume 138, 2015

The Employee Retirement Income Security Act of 1974 (“ERISA”) was enacted to protect the interests of participants in employer-sponsored pension plans. ERISA and the Internal Revenue Code (“Code”) impose numerous requirements on most pension plans. One such requirement is that a participant’s benefits cannot be assigned or alienated to another person. This antialienation provision and ERISA’s broad preemption provisions often conflicted with state laws designed to ensure that individuals satisfy their family support obligations. In response to this conflict, the Retirement Equity Act of 1984 (“REA”) established the qualified domestic relations order (“QDRO”) exception to the antialienation provisions of ERISA and the Code. The QDRO exception was intended to provide a means of dividing the community property interest in retirement benefits while maintaining a high level of equity regarding pensions for participants, their spouses and, in certain cases, dependents of the plan participant. REA recognized, at the federal level, the status of marriage as an economic partnership whereby the spouse who worked within and/or outside the home was considered to have made substantial contributions to that partnership, resulting in a community property interest in the benefits earned during the marriage. When pensions are part of the marital assets, complex federal laws directly impact upon state court proceedings. Moreover, in addition to substantive state law issues, a QDRO must be prepared to satisfy certain federal requirements as a prerequisite to dividing pension benefits. In addition to being familiar with the federal laws that govern pensions, the family law practitioner must also possess a thorough understanding of both the plan document and the plan’s QDRO procedures to be able to draft an order that the plan administrator will deem to be a “qualified” domestic relations order. For example, family law practitioners often utilize model QDRO language provided by the plan administrator which may expedite the QDRO review process, and yet such boilerplate language may not equitably secure the former spouse’s or dependent’s interest in the participant’s benefits. Under the Code, the former spouse or dependent recovering a portion of the participant’s pension benefits is referred to as the “alternate payee.” Retirement plans covering employees of federal, state, and local governmental entities are exempt from ERISA. Because governmental plans are not subject to ERISA, each governmental entity can establish laws and regulations that govern its pension plan. Additionally, each such plan has procedures that must be followed when pension benefits are assigned pursuant to a divorce. While the ERISA exempt plans are not subject to the

QDRO rules under the Code, most, if not all, such plans still require an order to divide the community property which, in almost all respects, essentially mirrors the provisions that must be contained in a QDRO. Since the enactment of the QDRO rules thirty years ago (yes, thirty years now), there has been a remarkable increase in the complexity of QDROs, both because plan sponsors have become more sophisticated as to what their own procedures require and thirty years of litigation has added to what counsel drafting a QDRO needs to include to protect the client’s interest. Due to the substantial dollar amount often involved, the numerous types of plans covering employees, the ambiguities in the QDRO statute, and the absence of regulatory guidance, it is not surprising that federal and state QDRO litigation have increased dramatically. With careful drafting and an understanding of both how the community property interest is to be determined and the optional forms such benefits can take, much of the litigation could be avoided. Some of the frequent problems we encounter when retained to draft a QDRO post divorce include marital settlement agreements (“MSAs”) which leave open the issue

of whether survivor benefits are to be elected and, if so, who, between the participant and alternate payee, bears the cost to provide the survivor benefit; use of the term “Brown formula” or “time rule” to divide the interest in retirement plans where the benefit is not based upon years of service; attempting to have the plan pay benefits at a time before benefits are actually payable under the terms of the plan; attempting to provide for attorneys’ fees in the dissolution proceeding to be paid directly to family law counsel by the plan; and, in the case of a QDRO, to be drafted to provide dependents support, an improper attempt to transfer the income tax liability on payments received by a non-spouse alternate payee. With the importance that the division of pension-related marital assets plays in most divorce proceedings, we suggest coordinating with benefits counsel at the MSA stage to minimize the post-divorce disputes and a return to court to clarify many of the pension division issues left unresolved by the MSA. While there may be other issues involving postdivorce proceedings to resolve, engagement of competent and experienced benefits counsel can prevent issues relating to retirement benefits from being one of these areas. n

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Attorney Journal San Diego | Volume 138, 2015

McIntyre’s Civil Alert Organized Succinct Summaries by Monty A. McIntyre, Esq. Monty A. McIntyre has over 29 years of experience as a mediator and arbitrator. More than 34 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 COURTS OF APPEAL Arbitration Ruiz v. Moss Bros. Auto Group, Inc. (2014) _ Cal.App.4th_ , 2014 WL 7335221: The Court of Appeal affirmed the trial court’s denial of a petition to compel arbitration. The Court of Appeal concluded that Moss Bros. did not present sufficient evidence to support a finding that an electronic signature on its proffered arbitration agreement was the act of Ruiz. (See Civil Code section 1633.9; Evidence Code section 1400.) (C.A.4th, December 23, 2014.) Bower v. Inter-Con Security Systems, Inc. (2014) _ Cal. App.4th_ , 2014 WL 7447677: The Court of Appeal affirmed the trial court’s denial of a petition to compel arbitration of a putative class action alleging failure to provide meal and rest breaks and other claims. The Court of Appeal observed that the rules regarding waiver of arbitration are similar under both Federal law and California law. The trial court properly ruled that Inter-Con waived its right to compel arbitration by engaging in class-wide discovery, and properly inferred from Inter-Con’s actions that it made a tactical decision to resolve the matter on a class-wide basis in the judicial forum when the class size appeared to be small. (C.A. 1st, December 31, 2014.) Montano v. The Wet Seal Retail, Inc. (2015) _ Cal.App.4th _ , 2015 WL 84677: The Court of Appeal affirmed the trial court rulings denying defendant’s petition to compel arbitration and granting plaintiff’s motion to compel discovery responses. The trial court properly ruled that plaintiff could not waive her PAGA claims (see Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348), and therefore the arbitration agreement’s nonseverability provision made the entire agreement void and unenforceable. The trial court was not barred by Code of Civil Procedure section 1281.4 from ruling on the discovery motion, because that motion was decided after the petition to compel arbitration was denied. (C.A.2nd, January 7, 2015.) 24

Attorney Journal San Diego | Volume 138, 2015

Civil Procedure Hardy v. America’s Best Home Loans (2014) _ Cal.App.4th _ , 2014 WL 7247385: The Court of Appeal reversed the trial court’s order granting a motion for judgment on the pleadings. Because only California law claims were alleged in the current state court action, California law applied when ruling on the effect of a prior federal court dismissal of an action alleging both federal and state law claims. Under California law, collateral estoppel did not bar the state court action because the prior dismissal for failure to prosecute was not a final decision on the merits. (C.A. 5th, December 22, 2014.) J.B.B. Investment Partners, Ltd. v. Fair (2014) _ Cal.App.4th _ , 2014 WL 7421609: The Court of Appeal reversed the trial court’s ruling granting a motion for a judgment under Code of Civil Procedure section 664.6. A settlement agreement cannot be enforced under section 664.6 unless it is signed by all of the parties. Defendant Fair’s printed name at the end of an email, on the document sought to be enforced as a settlement, was neither an electric signature as required the California Uniform Electronic Transactions Act (Civ.Code, § 1633.1 et seq.), nor did it constitute a signature under contract law. (C.A.1st, filed December 5, 2014, published December 30, 2014.) Mesa Shopping Center-East, LLC v. O Hill (2014) _ Cal. App.4th _ , 2014 WL 7335226: The Court of Appeal reversed the trial court’s order denying defendant’s motion to vacate the plaintiff’s dismissal of the action without prejudice. Because the court action and an arbitration proceeding were not separate proceedings, Code of Civil Procedure section 581 did not allow plaintiffs to dismiss the court action after the arbitrator had issued a interim award in favor of the defendants. The case was remanded for the trial court to rule on attorney fees. (C.A. 4th, December 23, 2014.)

Construction Pittsburg Unified School District v. S.J. Amoroso Construction Co., Inc. (2014) _ Cal. App.4th _ , 2014 WL 7250115: The Court of Appeal affirmed the trial court’s denial of the contractor’s motion for preliminary injunction regarding retention funds.

A public entity owner that has entered into an agreement providing for a retention may unilaterally determine, before any judicial determination has been made, that a contractor has defaulted on its obligations under the construction agreement and draw on funds or securities held in a retention account. (C.A. 1st, December 22, 2014.)

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Settlement J.B.B. Investment Partners, Ltd. v. Fair (2014) _ Cal.App.4th _ , 2014 WL 7421609: See summary above under Civil Procedure.

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State Ready Mix, Inc. v. Moffatt & Nichol (2015) _ Cal.App.4th _ , 2015 WL 109869: The Court of Appeal upheld the trial court’s order sustaining a demurrer, without leave to amend, to a crosscomplaint for indemnity and contribution. State was sued for preparing a bad batch of concrete used to construct a pier. State cross-complained against the civil engineer. The cross-complaint was barred by the economic loss rule. (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) State could not seek equitable indemnity or contribution for damages caused by the breach of its own contract. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041-1044.) (C.A. 2nd, January 8, 2015.) n

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888.920.EXEC (3932) Attorney Journal San Diego | Volume 138, 2015

Understanding People’s Natural Fears By Tom Hopkins Since 1976, Tom Hopkins International has been dedicated to providing the finest sales training strategies and techniques to individuals and companies alike. Tom Hopkins is world-renowned as The Builder of Sales Champions. His selling skills and sales strategies have helped millions of sales professionals and business owners in industries from A to Z to serve more clients, make more sales and earn millions in income. Think for a moment about what the greatest enemy is to the process of helping people decide to use your legal services. What is it that jumps in and brings presentations that were previously sailing smoothly along to a screeching halt? You may think it’s the financial aspects of your offering. Perhaps you think it’s the prospective client’s inability to make a decision. The bottom line is that they’re afraid. Fear stops more people from getting what they want in life than anything else. Fear is the greatest enemy you’ll ever encounter in your legal career.

What do your clients and potential clients fear? 1. Your prospective client is initially afraid of you. This is simply because they see you as a salesperson—someone who wants to charge them a fee for information they may not truly understand. Even if you are going to help someone you already know—a friend or acquaintance or even a relative—when you get down to business, certain fears will arise. It’s bound to happen in 99% of your presentations. (I’ll give you a 1% non-fear situation with your parents or grandparents, simply because in most cases they’ll believe in you and trust you no matter what role you play with them.) What do you do about the others? Accept it. There are some people who are going to be afraid of you just as there are patients who are panic-stricken when they have appointments with doctors or dentists. What you need to do to conquer this fear is to master the skill of putting people at ease. Learn to use a relaxed manner and tone of voice. Use rapport-setting comments and questions that show them you are interested in them, not just in closing the sale. 2. They have a fear of making a mistake. We all have that one, don’t we? We’ve all made decisions we’ve later regretted. Perhaps we relied on someone when we weren’t sure of his or her knowledge on the matter. When you are the one asking for the business, your prospective client must recognize you as a legal expert. You know this business. You have knowledge that they haven’t even considered. To help people overcome the fear of making a mistake, you need to lay out all the details they require in an easy-to-understand manner. Once they gain confidence in your knowledge, making a decision will be easy. 3. They fear being lied to. This is where your literature, testimonial letters and referrals come in. People are more likely to believe the written word than the spoken word, so let them read the good news about your firm for themselves. 4. They’re afraid of owing money. Most people have a tremendous fear of debt. Covering the financial details very carefully is critical here. Take as much time as they need to comprehend what they’re agreeing to. Ask them questions to assure you and them that they do understand the benefits of the particular arrangement you’re recommending. Your next move 26

Attorney Journal San Diego | Volume 138, 2015

would be to re-iterate everything you will do for them. Again, sell the value of the service you and your practice provide. 5. Many people are afraid of losing face. Have you ever made a poor decision that was big enough that most of your friends and family members knew about it? If you have, you know exactly what I mean. If not, believe me when I say it can be totally demeaning and embarrassing. Often a situation like that makes you feel like a child again—insecure and powerless. For that reason, many potential clients will stall making the decision to use your services. Knowing that this could be a challenge, your primary goal should be to help them feel secure with you. Let them know they are not relinquishing total power to you. You are simply acting in their behalf, performing a legal service they need. 6. They are afraid of the unknown. A lack of understanding is a reasonable cause for delaying any transaction. If your company has national name recognition, that should help eliminate some of this fear. If you work for a local company, I suggest you work with your fellow associates to earn a great local reputation. It will save you a lot of time over the years. Some of the most common fears may seem irrational to you, but remember, you are an educated, professional expert. You have eliminated the unknown from being a potential fear through your own education and personal experience. You have already been involved in more transactions in your career than the average person will be in his or her entire lifetime (unless they join the ranks of sales professionals themselves). Become an educator and they will respond by becoming clients. 7. Your clients may have had a bad past experience with another firm. Have they ever made a decision like this before? If they have, what kind of experience was it for them? You need to ask the proper questions to get those answers. If they hesitate to tell you, you may assume it was a bad past experience and you’ll have to overcome a lot more fear than if they’ve never hired your type of services before. 8. Their fear may be based on third-party information. Someone they admire or respect may have given them some advice that holds them back from making a decision. That third party will stand between you and them until you convince or persuade them that you can help them more than that person because you are the expert. You’ll have to work hard to earn their trust. You may even have to enlist the aid of some of your past happy clients as references. Form the mindset of constantly asking yourself “What fear is this person demonstrating and how can I address it?” Draw from experience with other clients and be patient in helping potential new clients develop their level of trust in you. n

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Law Practice Empowerment Tips

At the American Bar Association’s annual GPSolo National Solo and Small Firm Conference in October, practice management experts Peggy Gruenke and Alan Klevan presented “60 Practice Empowerment Tips in 60 Minutes”—focused on the nuts-and-bolts of running a successful law practice. We asked the pair to zero in on their favorite practice-boosting pointers. 1. Write a simple business plan—for you, not the bank or a potential business partner. The goal is for you as a business owner to see the big picture and understand exactly who you are, why you’re unique and who you are best equipped to serve. Creating a plan will help you answer questions like: Do I have a profitable business?

l l

Am I making money?

Am I spending too much?

How can I get more clients?

2. Build a budget. If you don’t have a budget, you are flying blind. Create some basic financial spreadsheets so that you can keep an eye on (a) where you are spending money and (b) how much money is coming in. If clients are paying but your bank account remains low, it’s a sign to look more closely at your monthly expenses and cash flow. Don’t get bogged down in the details or try to re-create

Attorney Journal San Diego | Volume 138, 2015

by Peggy Gruenke and Alan J. Klevan

past accounts—that is paralyzing. Starting today, add a column for the current month and begin entering the money you spend and the money you receive. Your financial spreadsheets will evolve over time, but at least you now have a place to keep track of your business. 3. Know how much money you need to make each month to keep the doors open. You should know this number by heart. (If you don’t, go back to tip 2.) Write it down and put it where you can see it every day (e.g., on your wall or computer monitor). Put a picture of your family or next vacation spot next to it. Every day, write down how much money came in. Keep a running total so you can see how close you are to reaching your monthly “need to collect” (or “monthly nut”) number. Any amount over that is yours to take home. 4. Know where your good clients come from. This means asking them how they found you. Most really good clients will come from one of three sources: Your really good current or prior clients.

Other lawyers or referral sources whom you know and trust.

Your family and friends.

These sources have three important things in common: They know you, they like you, and they trust you. This is your gold mine—tend to it and mine it often. You can’t buy “know, like and trust.” You earn it over time.

5. Don’t pay good money for bad clients. When you spend money on advertising and marketing, keep close track of how many new clients are coming from these sources and whether they are good or bad clients. The good ones pay on time and say good things about you. The bad ones don’t pay on time and make you very grouchy. 6. Take care of your referral sources. When you get a new client from those good referral sources, what are you doing to thank them? Here are a few ideas that have some “stickiness.” Send a donation to a charity they are involved in and let them know you did it. Use LinkedIn to get this type of charity information.

Pick up the phone and call—now, not next week. Let them hear the excitement in your voice for the new client you just signed up. You will be less likely to make the call a few days later and the excitement level will be lower.

Send them a gift card to a local coffeeshop. If someone is sending you referrals, you can bet that person is doing some networking and can use the card.

If you recently read a good book you think they would enjoy, send them a copy and ask them to pass it along when they are done.

7. Make sure your client service is exceptional. This sounds so basic. But step back and look at all the ways your clients are interacting with your firm. Your website. The initial phone call. The first visit to your office. Email conversations. How they get documents from you. Interactions with your support staff. Returning phone calls. Pretend you are a client working with your law firm. Critique each interaction and grade yourself and your staff. People remember good client service, but they will talk about exceptional client service. You want to be talked about the next time your client is out with friends—and you want it to be because you did something exceptional. 8. All businesses need systems—what are yours? If you haven’t already read the books “Checklist Manifesto” and “The E-Myth Attorney,” add them to your holiday wish list. Once you’ve read them, you will start to understand the power of building processes to increase efficiency and deliver a better product. Within your practice, you have tasks you do repeatedly. Documenting what you do—the steps you have to follow to file a bankruptcy or handle an eviction, for example—opens up a window to help you see how to improve upon it. There is power to writing down your processes.

9. Remember, you’ll never find new clients sitting behind your desk. Get to know different types of referral sources, then get out there and leverage your networking activities. Referral resources are people who respect you enough to be willing to open doors for you, as well as knowing others’ needs and what it takes to address them.

Centers of influence are leaders in their industry, or within your community. They make things happen.

Connectors are people who delight in bringing likeminded people together. You can find and connect with them on LinkedIn.

10. Follow-up and consistency are the cornerstones of a strong business. Often it’s the little things in life that count. Clients will remember that you follow up, ask good questions and regularly keep in touch. You are creating the foundation for great client relationships when you focus on these behaviors. Be sure to create a good system to help you remember to follow up. 11. Sit next to a stranger. The adage is, “There is no such thing as a stranger, only a friend you haven’t met.” The same holds true for lawyers and prospective clients and referral sources. The next time you’re at a social event, get out of your comfort zone. You have your “power talk”; the best way to perfect it is to keep using it, and there’s no better way to do that than by expanding your circle of contacts. 12. Volunteer. Nearly everyone is engaged in some sort of civic activity, be it an educational, religious or social group. All of these organizations need volunteers to do some work. Why shouldn’t that person be you? All it takes is a small amount of time weekly or semimonthly, and it will open the door to “sitting next to a stranger” and getting your word out. 13. Make it all about your client. When you meet a client, prospective or existing, turn off your mouth and let the person talk. As a lawyer, you are skilled in your field, but your clients don’t want to hear about that—they want to know what you can do for them. If you want to gain their trust, let them tell their story. 14. Learn to say no. There must have been a class in law school that purged the word from lawyers’ vocabularies. Just because a prospective client walks into your office, you don’t have to accept the case. Be mindful of the “80/20” rule. In this case, 20 percent of your clients will cause you 80 percent of your headaches. Which leads us to the next tip.

Attorney Journal San Diego | Volume 138, 2015

15. Know your ABC’s. Think about categorizing your clients from “A” to “D.” The “A” client appreciates your work, calls only when there is something relevant to discuss, and is a good source of referrals. Typical “D” clients only care about how much they are paying you, call incessantly, and will either not tell the truth or withhold information. Get rid of your “D” clients. 16. Set the rules. When meeting with a client for the first time, provide a road map for how you expect the case to proceed and have an honest discussion about the result they can expect. If it is a litigation matter, lay out the steps for preparation and trial. 17. Look them in the eye. When explaining fees and payment to clients, be it contingency or retainer, be confident. Look them in the eye. This will be the first indicator of whether or not your retainer will be regularly replenished. If they look down or away, be wary. If they nod their head or smile lightly, history has shown that not only do they have the ability to pay, they understand your ground rules. 18. Do not negotiate your fee. When a prospective client tells you that Lawyer Smith is willing to do the same work for $2,000 less, tell the person kindly that he can then retain Lawyer Smith. When you reduce your fee, you will have lost the trust of your prospective client. Odds are, in time, that client will leave Lawyer Smith and retain you to handle the mess that Lawyer Smith made. 19. Bill early, often and strategically. Clients appreciate the services you provide, but it is the value you are providing that is most important. To that end, bill when your perceived value is the greatest. As each day passes after an event, the perception of your value is diminished. If you send out the bill even two weeks afterward, the client won’t perceive the value to be as high. 20. Say goodbye with affection. The end of the case shouldn’t mean the end of the relationship. Your current clients are your absolute best referral sources, especially immediately after the matter is closed. Always conduct an exit interview, and when you send a closing letter, consider it a marketing letter, too. Ask for a review on one of the relevant sites, like Google or Avvo. Remember, though, the goodbye should be all about them. Follow up (see tip 9) to keep the relationship alive! n

Peggy Gruenke is owner of LegalBizSuccess, a company whose mission is to help solo and small firm lawyers build better businesses. Peggy is active in the ABA GPSolo Division, where she heads the technology committee and is vice-chair of the national conference committee. Follow her on Twitter @PeggyGruenke. Alan J. Klevan is President of Law Practice Strategies, a firm dedicated to consulting with small law firms and sole practitioners on how to use technology to build more efficient and profitable practices. He also practices personal injury law. Follow him on Twitter @AlanKlevan. Previously published in Attorney at Work.

Attorney Journal San Diego | Volume 138, 2015

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