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Volume 173, 2018 $6.95

Why Are Law Firms Falling Behind?

Jim Bliwas

Ethical Issues in Using Social Media

Jeffrey Jacobs Being a True Giver When Networking

Steve Fretzin Overcoming the Isolation of Being a Solo Practitioner

From Papyrus to Email: The History of Newsletter Marketing

Steve Klinghoffer Workplace Harassment: In Life as in Art!

Kit Goldman and Memo Mendez

Terrie S. Wheeler

Attorney of the Month

Mark L. Deniz, Always Preparing for the Next Move

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2018 EDITION—NO.173

TABLE OF CONTENTS

16

6 Why Are Law Firms Falling Behind?

by Jim Bliwas

10 Ethical Issues in Using Social Media

by Jeffrey Jacobs

12 Being a True Giver When Networking

by Steve Fretzin

EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Jim Bliwas Jeffrey W. Jacobs Steve Fretzin Terrie S. Wheeler Steve Klinghoffer Kit Goldman and Memo Mendez

WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

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ATTORNEY OF THE MONTH

16 Mark L. Deniz, Law Offices Of Mark L. Deniz, APLC, San Diego Always Preparing for the Next Move by Dan Baldwin

24 From Papyrus to E-mail: The History of Newsletter Marketing by Steve Klinghoffer

26 Overcoming the Isolation of Being a Solo Practitioner

26 24

by Terrie S. Wheeler

28 Workplace Harassment: In Life as in Art! by Kit Goldman and Memo Mendez

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 2018 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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Why Are Law Firms

Falling Behind? by Jim Bliwas

This news ought to be deeply disturbing to managing partners and lawyers everywhere, regardless of the size of their firm: Attorneys are losing their once-revered position as a business’ most-trusted advisor. Other professionals are edging them out, especially accountants and consultants. How did this happen? More precisely, why did lawyers let it happen? Something of a parallel might be found in what happened to the American auto industry in the 1970s when Japanese and European manufacturers made their first serious inroads into Detroit’s dominant market position. Several years later, Lee Iacocca—who saved Chrysler from near collapse and liquidation—was asked by the CBS News show Sunday Morning how the Big Three could have allowed this to happen. His answer was blunt and accurate: “Nothing is more vulnerable than entrenched success.” A similar earthquake is shaking up the business of law. As recently as 10 years ago, often a lawyer was the most-reliable and easily available source of advice to executives, managers and business owners. So, the entrenched success of traditional law firms created a window for new competitors to make inroads into the dominant market position of the profession. 6

Attorney Journal San Diego | Volume 173, 2018

Business people discovered other sources of advice that often charged less to give it: • Accounting firms launched law firm divisions to go after the high-premium, high-value files of corporate clients; • A growing number of foreign-based firms began opening offices in the U.S., Canada and the U.K., often staffed with “business authorities” to help companies from their home country make the transition to doing business in America and other Western nations; • Consulting firms began hiring lawyers, not to practice law per se but to provide advice when business issues had a legal component; • Virtual “NewLaw” firms operating under a low-cost economic model started attracting day-to-day commodity work from businesses that always paid the light bill for regular law firms; and • Clients are keeping more work in-house, both as a costsaving measure and because lawyers in the general counsel’s office are more likely to know more about the business and thus offer better, more focused advice. So along with competition for actual work, lawyers are suddenly playing a game of tug-of-war with the other sources of advice open to clients that didn’t exist a decade ago.


Value v. Price Contributing to firms losing their “trusted advisor” status: Clients don’t feel they are getting sufficient value for what they are paying. A new study from Nisus Consulting finds “clients feel they are paying through the nose and that the (law firm’s) profits are excessive,” and as a result they are not getting value for money. According to LegalFutures, the survey shows that the top three factors driving client views of the law firms they use haven’t changed—strategic thinking, personal chemistry and problem solving—yet responsiveness, which lawyers believe is the most important factor, came eighth. Price also is driving clients away from seeing their attorneys as an advisor. Indeed, there is a growing reluctance on the part of executives to call outside counsel on simple, routine matters or to run something by them that isn’t a big deal. “Unless it’s really vital, I avoid calling our lawyers because it’s gotten too costly,” the general counsel of a midsized, fast-growing, high-tech company told me not long ago. “A few months ago, I phoned him with a quick question. We spoke for maybe 10 minutes and at the end of the month a $150 charge appeared on my invoice. “Our CFO tells me that the CPA firm he uses never charges for that kind of a call,” he added. “Why do law firms start running the meter every time the phone rings?” Attorneys have fallen a long way in their client’s eyes. In early October, The Global Legal Post reported that along with pricing issues, the client-attorney relationship is undergoing a fundamental shift thanks to the rise of artificial intelligence, which is changing the how firms must package and price services. As law futurist Chrissy Lightfoot has been writing for several years, “The incremental change everybody talks about I actually believe has begun to be exponential … Now is the time to actually do the deep research and the deep thinking on how it’s going to impact all of us, our livelihoods, our career, but in a positive way.” Law firms have done a lousy job of differentiating what they do by quantifying their value. Instead, they have fallen a long way in their client’s eyes in a relatively short period of time.

Recovering Lawyers can still recapture their role as the client’s trusted advisor. But it will take a different mindset and a sustained marketing effort to convince clients that the firms are sincere. Attorneys can begin the process by thinking about these six ideas:

1. Start listening to your clients, they’re trying to say what they want to do. I’ve lost track of how many business people told me in focus groups and client satisfaction interviews, “They don’t hear what I’m saying. I tell them I just need a dining room chair and they come back with six chairs, a table and a sideboard. They were at the meeting so why is this so difficult?”

2. Stop over-lawyering files. Don’t put three partners on a file when two can do the job. If I were a client, I’d explode hearing, “I asked Joe to help on the file because he needs the hours” – which I’ve overheard in hallways too many times over the years. Unless the client is the Lawyer’s Relief Charity Fund, let Joe find his own hours.

3. Don’t charge for bringing young associates to meetings. Yes, they need the experience and observing a deal being structured is a valuable learning exercise. But don’t bill for every minute of the associate’s time; training young lawyers is a cost of doing business for the law firm, not the client, and charging for the time is unprofessional.

4. Turn off the meter. Billing for a 10-minute phone call where you answer a quick question may be ethical but it’s bad business. The executive will believe that you see them as a paycheck, not as a colleague, and it only deepens the crack in the “trusted advisor” relationship.

5. Invite clients to a free “What are your plans?” meeting annually. Invite the key executives in for a lunch where they can explain how they plan to grow their business over the next few years. Tell them the meter is off, and have some of your partners attend. Just ask questions, don’t use it to tout the expertise of a tax partner the client has never met. It will absolutely generate new files.

6. Learn to get by giving. A well-written, readable blog is the best way to establish an attorney’s thought leadership and provides clients, potential clients and referral sources with things they should think about in running their company. If you give away good ideas, you’ll get files that help an executive implement them. I hope you’ll find my outlined reasons why I think lawyers may be losing their valued status as a “trusted advisor” to clients and suggestions for turning things around helpful toward increasing your overall level of success in this new year!   n

Law marketing veteran Jim Bliwas has spent most of his career working in and with law firms in the U.S. and Canada. He is senior marketing and communications strategist for Professional Services Marketing LLP, and managing director of Leaner Law Marketing Strategies. Reach him at Jim@PSM-Marketing.com.

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Ethical Issues in Using Social Media by Jeffrey Jacobs

Why should lawyers care about social media, and whether they are using it ethically? Obviously, lawyers should be concerned about compliance with ethical requirements in everything they do, but there may be some hidden ethical pitfalls in the use of social media about which they need to be aware, both on behalf of themselves and their clients. The use of social media is everywhere – your associates and partners are using it, your competitors are using it, and your clients are using it and want you to use it, too. The effective (and ethical) use of social media falls squarely within every lawyer’s duty of competence, as set forth in ABA Model Rule 1.1 and California Rule of Professional Conduct (CRPC) 3-110. Comment 8 to the ABA rule provides that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (Emphasis added.) About 80 percent of Fortune 500 companies have a Facebook page, 83 percent of Fortune 500 companies have Twitter accounts, and the content is all discoverable. That is an important thing to keep in mind when advising a client on creating a social media policy, regulating who can post to or must review the content on such accounts, or preserving social media evidence when necessary to help implement a client’s litigation hold. Providing such advice not only implicates the ethical duty of competency, but also requires lawyers to consider ethical requirements when seeking the social media evidence of opposing parties. Whichever side of a matter you are on, information contained on social media and in electronic communications can be very helpful in all sorts of litigation contexts, from family law (divorce and custody) proceedings to personal injury/insurance, trade secret theft, intellectual property, non-compete, employment discrimination, and even commercial dispute matters. Keep in mind that although lawyers may view public areas of social media accounts, communicating with an unrepresented person through social media may be problematic (ABA Rule 4.3), as is “friending” a party, witness or juror under false pretenses in order to access non-public information (ABA Rule 4.1(a)). As San Diego Bar Ethics Opinion 2011-2 stated, “[the] rules bar an attorney from making an ex parte friend request of a represented

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Attorney Journal San Diego | Volume 173, 2018

party … We have further concluded that the attorney’s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request.” And although employers are more and more frequently searching social media in connection with background checks on potential employees, they need to be aware that uncovering information, even inadvertently, about an applicant’s age, race, religion, national origin, disability or other characteristics may give rise to a claim that such information was used inappropriately in making hiring or other employment-related decisions. In addition to using social media in their representation of clients, lawyers and law firms typically have websites, Facebook and LinkedIn pages, and Twitter accounts of their own, and need to be aware that such content may be considered regulated attorney communications. Under CRPC 1-400, a “communication” is “any message or offer made by or on behalf of a member [of the bar] concerning the availability for professional employment of a member of a law firm directed to any former, present, or prospective client…” Accordingly, the content of such pages and accounts may need to be retained for a period of time that varies by state (for example, two years in California, one year in New York). In addition, when considering what to put on a Facebook page or other social media account, lawyers need to keep in mind their ethical duties of candor (ABA Rule 3.3, CRPC 5-200(B); maintenance of client confidences (ABA Rule 1.6(c), CRPC 3-100), and duty to supervise (ABA Rule 5.3(c)), for it should go without saying that subordinates cannot be permitted to engage in conduct that lawyers could not perform themselves under the rules of professional conduct. Lawyers should also be wary of the distinction between providing legal information versus legal advice through social media, lest they run afoul of restrictions on unauthorized practice of law outside the jurisdiction of their state licensure (ABA Rule 5.5) or inadvertently create an attorney-client relationship. These are just some of the ethical issues that can arise in lawyers’ use of social media, and readers are encouraged to attend CLEs on the topic for a fuller treatment of these and related issues.  n Jeffrey Jacobs, Esq., CEDS, is a senior counsel and senior director of litigation readiness consulting for Epiq. Learn more at: DTIGlobal.com


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Being a True Giver When Networking by Steve Fretzin

O

ver the past 10–15 years there has been a dramatic increase in the number of people actively focusing on networking. Increasing competition, along with more widespread attention on building a strong network, is encouraging businesspeople to flock to networking functions in droves. This is as true for the legal profession as for any other. However, it can be an especially difficult challenge for an attorney to simultaneously balance a clogged office inbox with a devotion to developing a book of business. As we’ve established, simply “getting out there” isn’t enough in the contemporary networking scene. It’s more critical now than ever before to employ a thoughtful approach to networking in order to find success. Many attorneys I work with express discomfort at the notion of networking due to fruitless past attempts, which makes the whole endeavor seem a waste of valuable time. However, applying an efficient and effective process to networking will ensure you get optimal results from your time investment. I’ve categorized business networkers into three groups. In addition to identifying which group you might belong to, it’s important to quickly identify which group others fit into as well. Identifying which group the person you’re speaking with falls into can make or break your results.

Networker Type 1: The Taker A “Taker” is an individual who attends numerous events and racks up an imposing collection of names and business cards as a way to push appointments and close sales. Unfortunately, these sometimes-aggressive creatures can burn enough people that word “gets around” and ultimately helps to dissolve their reputations. You may even start to observe people physically positioning themselves away from a Taker at consecutive events. Although avoidance seems an appropriate strategy, the Taker should not be dismissed outright. For some people, simply obtaining new sales (however generated) is and always will be their focus. Perhaps a compassionate view toward seemingly aggressive Takers is the best way to view them. After all, many entrepreneurs require sales quotas of their employees to retain their jobs as a strategy to keep the business viable. Some Takers simply haven’t been taught the art of networking, or are confused on how best to utilize networking in order to achieve long-term results. That being said, if you can detect a Taker early on at an event, try to avoid the next step: the one-on-one meeting. This important 12

Attorney Journal San Diego | Volume 173, 2018

meeting is where you schedule a time to meet for coffee or lunch after the initial networking event where you met with a potential business connection. If you find yourself inadvertently ensnared in a meeting with a Taker, this meeting can make for a rough few hours consisting of a sales pitch for the Taker’s product or service, whether you have a need for it or not. It could also turn into a “name grab” by the new acquaintance for the names of your contacts so that he or she can make a sales pitch to them. Whatever the case, identifying and avoiding a Taker at an event or by phone before committing to a coffee meeting can save you time and emotional energy. Feel free to thank the person for his or her time and express appreciation for the invitation, but tell the “wannabe” contact directly that you’re not available and/ or not interested in his or her product or service. It’s perfectly acceptable to say you’re happy with your current vendor. The most important thing to remember when dealing with a Taker is to use whichever response best fits your situation, get it said, and move on as quickly as possible. Your ability to identify a Taker and then to remove yourself and focus on more promising prospects is a critical component of effective networking.

Networker Type 2: The Apparent Giver The Apparent Giver is the most common networker type. Apparent Givers are those people who, sometime during their careers, have heard and taken very much to heart the concept that “givers gain” or “give to get” as a mantra relating to networking. They believe they understand how to network and think of themselves as major players in the networking game, but often they miss the boat on the important component of follow-through. Where Apparent Givers stumble is in failing to execute the promises they’ve made to new contacts in an effort to gain their trust. While an Apparent Giver may actually have altruistic intentions in the beginning, promises are worthless if the networker doesn’t follow up and carry out the pledge made to the new contact. Some Apparent Givers become too distracted by other commitments and simply forget to act on their earlier promises. Some with less philanthropic motives may drop the ball when they realize the new contact may not be able to immediately reciprocate. For most people in this age of information overload, if something isn’t scheduled and written down, it probably won’t happen. The most obvious downside to turning into an Apparent Giver is that failure to follow through will tarnish your reputation if you come to be viewed as someone who doesn’t act on a pledge to a


new contact. On the receiving end of the networking exchange, Apparent Givers present a distraction from your ultimate goal of disqualifying this contact type as a potential strategic partner due to empty promises. When I meet an Apparent Giver, I always perform a small test. I ask this potential Apparent Giver to make an introduction for me to a third party to observe the person’s follow-through. If the Apparent Giver seems to stumble on the action portion of the equation, I may step in and try to help the person out with a reminder e-mail or phone call to discuss progress on the referral that was offered. After that, if my prompts don’t bear fruit, I begin to seriously question my new contact’s ability to become a referral source for me. This low-commitment testing process provides me with an opportunity to gauge the new contact’s mettle in terms of living up to promises before spending time on someone who’s unable to be an active part of my network due to inertia. The same approach can work for you.

Networker Type 3: The True Giver The ultimate networking aspiration is to become a True Giver and to seek to interact with others of this type. True Givers understand the “big picture” when it comes to networking. This networker’s mantra is “I’ll give selflessly, regardless of what’s in it for me personally.” As a True Giver, I can tell you that giving selflessly to everyone you meet is a fulfilling way of life in and of itself. The amount of good karma I’ve stockpiled over the years of true giving is impressive, if I do say so myself. I’ve built a mega network 15,000 people deep with a stellar reputation as a dependable person. The downside of being a True Giver comes down to a math problem. When I started networking many years ago, I attended three or four networking events each week. Depending on the type of event, I’d meet from three to 20 new people at each event. Early on, I filled up my calendar with anyone, including C-classified contacts, who’d meet with me. There were days I’d go to five coffee meetings back-to-back. As a newbie True Giver, I felt that in order to succeed at networking on a high level, I had to help each and every person I met for a cup of joe. However, even if I met for only three coffees each day, in a month of 20 working days, that would have amounted to 60 individuals that I was trying to assist with referrals—and I was making as many as three connections for each person I met for coffee. When I make a referral, it’s typically a call on the contact’s behalf for optimal results, which could take three minutes, minimum. All this adds up to 540 minutes of referral time, give or take, each month. That’s nine hours each month just making phone calls, in addition to the time spent meeting with the contacts in the first place—which is untenable, even for the most committed True Giver. As a busy attorney, you’re probably reading this and shaking your head in disbelief due to not just the sheer number of meetings, but the astonishing amount of time I’d spend introducing contacts to each other. Even if you had only five

short coffee meetings in a month, it might be problematic to then make one quality introduction for each. That’s why being a True Giver has to be balanced with a deliberate process. First and foremost, remember that you don’t have to meet with everyone you encounter at a networking event, as we’ve already established. By using the system outlined in Chapter 5 to qualify the best people for you to endeavor to meet and possibly refer to another connection, you’ll focus in on quality connections. Second, don’t feel obligated to promise referrals for every person you meet. Not everyone is worthy of your “endorsement” by way of an introduction to another one of the contacts you’ve nurtured. It’s fairly easy to disqualify Takers and industry nonexperts as people not to make pledges to or introduce to others. Finally, while of course the Golden Rule tells us we should be nice to everyone, you should focus your networking energy on helping those people you identify as True Givers and those who appear to have the ability to be a strategic partner over the long haul. One major key to successful networking is to qualify people as you go. This is critical because, from a temporal standpoint, you should be following up as close in time to the networking event as possible. Because all networkers are not created equal, you should make sure they’re tested and then tested again. You’ll learn more about your new contact with each interaction. For example, after meeting someone for coffee and rating her as an A, I may try to make one or two introductions for her. Along the way, I watch her reaction and reciprocation. While I don’t necessarily expect “tit for tat,” if there isn’t some level of reciprocity, I know I’ve met someone who’s probably not a True Giver, which informs my interactions surrounding this person going forward. While other networking resources might suggest that being a True Giver requires never asking the “return on investment” question, I posit that effective networking requires informed, judicious giving of your time and connections to the right people for the right reasons. After all, there just aren’t enough hours in the day to run around doing good deeds for every person who crosses our paths. On another note, I may meet a contact I rate as a C and try to make one small connection for him or her or provide some sound advice if asked. I don’t necessarily expect much from a C in return, but this is where the “networking karma” kicks in. My father always said, “If you can’t make a sale, make a friend.” This is a surefire way to build up a following of people who like you and might think about referring you down the road.  n Steve Fretzin is the Chicago area’s premiere business development coach and marketing trainer for attorneys. Fretzin is driven, focused and undeniably passionate in his pursuit to help attorneys reach their full potential. He has redefined the business development experience, transforming hundreds of attorneys into top performers. His clients are thrilled because of the growth that happens after completing his program. A typical client should expect to double or triple their book of business within 12-16 months of working with him. Learn more at Fretzin.com. Attorney Journal San Diego | Volume 173, 2018

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NEXT MOVE “What is going to happen to me?”

That question is one of the first and most fear-laden asked by someone arrested on a DUI charge. The attorneys and staff of the Law Offices of Mark L. Deniz, APLC are dedicated to quickly finding the right answer and to seeing that their DUI clients receive the best possible resolution. “We use a dual-track approach of always working, fighting for a dismissal while at the same time trying to negotiate the best terms possible with the given facts for the client. The core focus of our office is ‘work hard, be proactive, and find solutions,’” says founder Mark L. Deniz.

Be Proactive and Find Solutions Everything begins with the proven strategy that “the better the chances of winning at trial, the better the offer from the prosecution is likely to be.” The office works to find a way to favorably resolve a case. The office slogan, “Be Proactive and Find Solutions,” is the guiding principle behind the firm’s growth. The firm uses a “two tracks made of three parts” approach. The “two tracks” run at the same time—one fighting for a dismissal and one negotiating for the best possible resolution. The “three parts” process breaks the case into segments: First, and most importantly, the team finds legitimate points of argument that weaken the prosecution’s case. This consists of examining and scrutinizing the evidence and investigating the integrity of the investigation. The firm begins to obtain evidence even before the first court date. “The faster we get our hands on the evidence, the faster we can examine it,” says Deniz. Second, they gather information to help the prosecution and judge see their client as an individual. That’s where their “put a face to the case” approach comes into play. The prosecution considers the character of the person and their actions to determine their stance on a case. “The better light we can place our client in, the better chance we have of getting a more favorable resolution,” Deniz says. Third, Deniz anticipates the flow of the case and sets a plan for the client to begin to show the prosecution and judge the client wants to make an impression to earn a more favorable resolution. “Clients have so much nervous energy. They are dying to help in any way they can. Getting started in a class or some other measure goes a long way in demonstrating to the judge and court of their character. The combination of all these parts produces solid results,” says Deniz. Deniz and his staff take this unique approach to handling DUI cases and he compares it to a triple-option offense in football due to having built-in options within the framework. Each

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ATTORNEY

OF THE MONTH

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2018 2016

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From Left to Right: Alyssa Buffaloe, Esq., Alicia Freeze, Esq., Mark L. Deniz, Esq., Case Manager Sydnee Cable, Case Manager Kelly Brady.

“I love that we have a crew that is dedicated to changing people’s lives” –Mark Deniz case at the firm is handled according to a carefully structured plan, but it can be changed as the case develops. One case may be built on the science of blood alcohol levels while another case may be based on other facts where the blood alcohol level is of no issue. You want to be fluid and not be a one-trick pony,” Deniz says. The staff makes a priority of helping navigate each client through the process and keeping them updated. When a case is opened, the attorneys set up dates and times to reach out to let them know where they are in the process and to answer questions.  “I really try walking in our clients’ shoes to anticipate their questions and concerns. For example, it normally takes three to four weeks to obtain police reports on a DUI case. The time between retaining our firm and receiving the reports is often quite stressful for the client. Early on, we reach out to the client and let them know it is natural to feel a tad anxious. We let them know that even though there may be some radio silence in their case, it is actively being worked on,” explains Deniz. “At that point, we usually begin crafting a proactive plan. Utilizing this strategy  really builds trust with the client and lets them know we care and are fighting for them. That trust allows the defense case to move smoothly and with direction,” says Deniz. 18

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From Prosecutor to Private Practice Deniz practices a philosophy he calls “embracing the blank slate,” something available only in private practice. As a prosecutor, you are trained with an established process of how cases are to be handled. “After almost ten years as a prosecutor, it was time to implement my own vision of how to improve the handling of DUI cases,” says Deniz. Opening the firm was a scary proposition after spending nearly a decade as a prosecutor. He got business models from other defense attorneys on how to handle cases and more importantly, the business side of his practice. He took nuggets of wisdom from colleagues, but no particular business plan was fitting with the vision he had for the firm. At the time it was quite stressful. He says, “One day it hit me. For ten years, I had bottled my ideas and opinions in how a case should be approached and how an office was to be run with efficiency. Now, I have a blank slate and can construct what I feel is the best way to get the results I want. It was the blank slate that I once feared, that I am now embracing it. I have not looked back.”


Changing Paradigms DUI penalties have gotten stiffer in the last several years. The key to working effectively for Deniz and his team is to quickly identify issues within the case and implement a plan. Deniz’s nearly ten years as a prosecutor, the last two of which was handling high-profile San Diego DUI cases, provides a basis for valuable information from the prosecution and defense perspectives. Deniz says that while working for the San Diego City Attorneys Office, he worked with some of the finest DUI prosecutors in the state. “The San Diego City Attorneys office takes pride in being tough on DUIs. They are now very

formidable counterparts, who force the defense to work that much harder to find weaknesses in their cases. It was a great experience for me because there are so many layers in DUI cases. Once you open the hood of a case you will usually be able to find issues that require examination. In the end, DUI cases are made up of humans and machines, both of which make mistakes. The blend of science and everyday human actions is fascinating. There are many issues to delve into. If you love strategy, this is a great type of case for you,” Deniz says.  As a former prosecutor, Deniz works to anticipate the next move. He says, “I love strategy. I was a college football player and later a coach and teacher. I thought my career was going to be in coaching. Having been a prosecutor in multiple agencies, I gained valuable experience. First, I learned how to prove a case. Second, the arguments that the defense needed to make to get a favorable resolution for their clients. Knowing how the prosecution will respond to evidence or arguments is key in the process. That experience is second to none,” he explains.  A case that stands out to Deniz: People v Espinosa, which occurred in 2007. Deniz was a young felony prosecutor in Tulare County. The case involved a carjacking, robbery, and auto theft in which the defendant had multiple previous strikes against him. The event was more than a year old and defense counsel was highly regarded. Before that case, Deniz had been a misdemeanor and general felony deputy and he was not looking to move up the ranks and take on the more serious cases. He says he just wanted to get his feet wet in criminal law. “My supervisor threw this case on me and challenged me. You have a choice to wiggle out of the case or take it. I jumped all in. It

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He began the firm in 2013 after serving nearly a decade as a prosecutor in both the San Diego City Attorney’s office and the Tulare County District Attorneys Office. Today the firm employs a half dozen people in multiple locations around San Diego County. Although the focus currently is on DUI cases, Deniz says, “I would like to expand the firm in other types of criminal defense cases. I spent years as a prosecutor handling domestic violence, auto-theft, and three strike cases before taking on high-profile DUI prosecutions,” he says. “I love helping people facing DUI charges, but there is always the thought to expand into different areas of criminal law. From there, we have a plan to expand our firm to some neighboring counties. We are getting the logistics in place, and our firm blueprint for the next few years is very exciting.”

From Left to Right: Chase, Mark, Dylan, and Stacey Deniz. Tom and Susan Nuveman (In-laws).

“I always make time and find the energy to saddle up for an adventure with my family.” –Mark Deniz Attorney Journal San Diego | Volume 173, 2018

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Family and Fun Finding and maintaining the balance between business and family is challenging, but Deniz says, “my wife, Stacey Nuveman Deniz, is my muse and my rock. We are the consummate teammates and I know she has my back.” Both are former college athletes and coaches. She is a threetime Olympian and gold medalist, a former ESPN analyst, and is in the UCLA Athletics Hall of Fame. They are natural sports fans. The couple has two boys, Chase, age ten, and Dylan age three. They enjoy exploring San Diego County, whether hiking a new trail, the tide pools or just strolling through Balboa Park. “Our life is one continuous E-ticket ride,” he says. “It seems like it is non-stop. Keeping that work-life balance is a strategy all in itself I am trying to perfect,” says Deniz. n Contact Mark L. Deniz Law Offices of Mark L. Deniz, APLC 2831 Camino Del Rio South Suite 307 San Diego, CA 92108 (858) 751-4384 DenizDefense.com 20

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EXPERIENCE

was an amazing case and I got the conviction. That case was paramount to me because I loved competition and challenges. However, this challenge was not out on a football field, but a courtroom. That case gave me the confidence to take on whatever case was placed on my desk. That case really changed my paradigms about how I was going to handle criminal law cases from there on out.” A recent case illustrates the firm’s approach. Client KP was charged with DUI with a refusal. As standard practice, the DMV suspends a driver’s license for one year with no chance of obtaining a restricted license if they make a finding that there was a refusal. KP had a commercial license and a suspension would cost him his job. The firm started immediately with subpoenas for the police reports and videos, and for the officer’s testimony at the hearing.  The charges were eventually dismissed, but then the firm and the client faced several DMV hearings over the issue of refusal. There were several witnesses over the course of multiple hearings. A few weeks after the hearings they learned that their client’s license was suspended for a year. KP lost his job and he lacked the funds to continue the case. Deniz waived his legal fees and recommended appealing the decision, which the client agreed to pursue. Three weeks later, the DMV reversed itself and the suspension was set aside. “There was so much ebb and flow of emotions with this case. We had to stay true to our plan. It was so awesome to help him get past this situation,” Deniz says.

» EDUCATION

• BS Political Science—Northern Arizona University, 1995

• J.D.—John F. Kennedy University • Summer Session Graduate—National College for DUI Defense – Harvard Law School • SFST Student Course Graduate • Certification Qualified Standardized FST Administration— La Pier National Highway Transportation and Safety Administration and International Association of Chiefs of Polices

» HONORS & AWARDS

• Better Business Bureau A-Rating • Yelp—Top 100 Trial Lawyers—2018 • Yelp Reviews—Average Rating of 5 Stars from 73 Reviews!—12/2018 • AVVO—Top Contributor Award—2018 • AVVO Clients Choice Award—2018 • AVVO 10.0 “Superb” Rating—Average Rating of 5 stars from 133 Reviews!—12/2018 • National Academy of Criminal Defense Attorneys—Top 10 Attorneys Award for the State of California—2018 • Top 100 Trial Lawyers—National Trial Lawyers Association—2018 • Lawyer.com—Premium Status—2018 • Deputy City Criminal Attorney—San Diego City AttorneyCriminal Division-Trial Unit • Criminal Law Mock Trial Champion—County of Tulare Bar Association • Deputy City Attorney Criminal Prosecutor of the Month—San Diego Attorney-Criminal Division-Trial Unit

» PROFESSIONAL ASSOCIATION MEMBERSHIPS

• California DUI Lawyers Association • San Diego Bar Association • California State Bar Association • Criminal Law Trial California Delegate—United States Department of Justice—Criminal Trial Advocacy Center, Columbia, SC


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From Papyrus to E-mail: The History of Newsletter Marketing by Steve Klinghoffer

F

rom e-mail marketing to social media marketing, it seems that every year or two there is a new trend for you to keep in touch with your clients. Today, using ever-evolving technology that was nonexistent a generation ago, you can reach thousands of people with a click of a button. As new as it may sometimes seem, your content marketing strategy—whether paper, digital or both—is rooted in principles that predate Cleopatra. As the oldest known piece of direct marketing, most marketers cite a 3,000-year-old papyrus from Thebes offering a reward for a runaway slave. And long before the computer and even the printing press, Babylonian merchants advertised their products to new audiences on clay tablets. Soon after the appearance of these marketing pieces, we see some of the first known examples of newsletters: Handwritten reports from the Roman Empire and China’s Tang Dynasty kept literate adults informed about what was happening around them. But with so few people able to read and write—not to mention the lack of technology—examples such as these are few and far between until after Gutenberg’s 15th century innovation: movable type.

New technology spurred newsletter marketing The invention of the printing press hastened the spread of knowledge and information, along with raising literacy rates. It also paved the way for the mass production of not only books but also flyers, brochures, newspapers and newsletters. Publications that we might now recognize as newsletters began to appear in the 16th and 17th centuries. One example is a 17th century newsletter distributed in England featuring accounts of events and people from the colonies. By 1704, a publication considered the United States’ first known newsletter appeared, The Boston News-Letter—a single sheet printed weekly that contained information from England of interest to Colonial Americans. These early newsletters evolved into what we today know as newspapers. Printed for 72 years, The Boston NewsLetter is considered the first continuously published newspaper in North America.

Early newsletters paved the way for content marketing While the term “content marketing” traces its use to 2001, we can find the first examples of content marketing in the 24

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mid-1700s. For example, in 1734, Benjamin Franklin began publishing Poor Richard’s Almanack  to promote his printing business. He did this by printing weather predictions, recipes, trivia and other advice people considered valuable, selling 10,000 copies a year. Later examples of content marketing include the following: • In 1882, the Edison Electric Lighting Company Bulletin helped spread the word about the benefits of electric lighting. • In 1888, Johnson & Johnson launched a publication, Modern Methods of Antiseptic Wound Treatment, one of the company’s three publications that provided useful information to physicians and the larger medical community. • In 1900, Michelin launched the Michelin Guide, a publication that helped motorists maintain their automobiles and find lodging while traveling. The iconic red-covered guide is still published today. • Adapting to new technology in the 1930s, Proctor and Gamble launched radio programs featuring entertainment and valuable information for housewives. The term “soap opera” originated with these radio programs. The early 1900s saw a new flourishing of newsletters, such as  The Kiplinger Letter, which forecasts financial trends for its readers and is currently read by 5 million people each month. Throughout the 1900s, newsletters covering myriad topics, from business and industry to farming and fashion, could be found.

The Internet changed life— and newsletter marketing Just as the birth of the Internet in the 1990s transformed life as it had been known for centuries, it also revolutionized marketing. E-mail actually predates the Internet, as does the first e-mail marketing message, which was sent in 1978 by a Digital Equipment Corp. employee name Gary Thuerk. He sent an e-mail blast to 400 recipients that resulted in $13 million in sales. This is also considered to be the first spam message. With the 1996 launch of the first web-based e-mail service, Hotmail, what began as a communications tool for business professionals and academics turned into a common means of personal communication. This innovation made free e-mail available to anyone with access to the Internet, even if only from a library or business center. Smart marketers seized on the


newsletter marketing opportunities of this new technology. Large companies and small professional firms alike use e-mail marketing to send eNewsletters to clients and prospects on a regular basis. While some eNewsletters contain links back to a company website to increase web traffic, many more are content-rich publications full of information. Like the paper newsletters that came before them, these eNewsletters have helped turn prospects into customers, or one-time customers into repeat customers. E-mail technology continues to evolve. For example, in the mid-2000s, e-mail service providers began allowing senders to receive feedback. As a result, marketers today can measure open rates, clicks and other data, helping them to hone and improve their e-mail marketing to better meet their needs and those of their audiences. In 2015, an estimated 2.5 billion people were using e-mail, though 50% of all e-mails sent were believed to be spam. These figures underscore the importance of sending newsletter marketing e-mails that contain information useful and valuable to the reader.

The lasting value of newsletters The handwritten pieces circulated in the Roman Empire and the mass e-mails sent today share several characteristics: Chief among them, they contain valuable information that readers want to 2015 absorb. It’sSD Attorney this key that has Fragomen Journalcharacteristic - 1st Proof.pdf 1 10/6/2015 7:45:44made PM

newsletter marketing a successful tool throughout history. Newsletters not only inform but they also position the sender as an expert in a specific field. As a newsletter marketer for more than 30 years, I know this to be true. I started in this business helping accounting firms successfully market their practices with a monthly accounting newsletter that is still published today, in both print and digital formats. Today, our services have expanded to help accounting, legal, financial, medical, dental and physical therapy practices market themselves with print and electronic newsletters—using modern technology and long-standing, tried-and-true marketing principles. The next time you click “send” on your e-mail newsletter, know that you are following a long line of content marketers that includes Benjamin Franklin, the Edison Company and even the first soap opera.  n Steve Klinghoffer, along with his wife Lori, founded WPI Communications, Inc., in 1984. After practicing law for almost ten years, Steve directed his entrepreneurial interests toward helping professionals market their practices through a wide range of editorial-based tools, such as client and patient newsletters, referral-generating newsletters and Web site content. Over the last 33-plus years, Steve has worked with thousands of physicians, dentists, physical therapists, accountants, attorneys, financial planners and other professionals to help them build their practices. For additional information, please visit: www.wpicommunications.com.

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Overcoming the

Isolation Of Being a Solo Practitioner by Terrie S. Wheeler

Do you ever feel a little isolated as a solo practitioner? Like you’re hanging out, doing all the right things to market and grow your practice, yet the results just aren’t happening? If you’re in a small firm or a solo practitioner, isolation can be debilitating, particularly when you are trying to build a “firm” mentality with your clients and prospects. Plus, I have to admit, at least in Minnesota, weather does become a factor. You were planning to attend that morning networking event, and you hear on the morning news that traffic is at a standstill and your trip “in” will take another hour. Guess what? I’d cancel too! I am simply acknowledging that you need to approach your marketing efforts with commitment, but also with a degree of flexibility. So as you are sitting atop your perch today, looking out at the world, what can you do to propel your practice to the next level? 26

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Use Technology as a Solo Practitioner Between email, Skype, GoToMeeting, and other technologies, you can bridge the gap into the outside world. At PSM we have clients across the country. We definitely feel more connected to our clients when we can talk “live” with them on Skype.

Spend Time on LinkedIn Truly—LinkedIn is one of your best marketing tools. You can sit in your office and connect with your contacts. You can comment on posts they have made, and post links to articles and websites you find interesting. In addition, you can check out the ability to answer questions prospective clients have about your area(s) of practice, or to conduct advanced searches for people YOUR contacts could introduce you to.

Write a Blog Content is king, and the best way for you to share your content is to regularly post blogs to your website, then promote them on social media. Clients want to see that you have done what they need, so don’t be afraid to share your expertise—it’s what makes a client hire you!


Schedule a Lunch Everyone has people to whom they have said, “Let’s get together sometime soon!” Well, now’s the time to act! Take your in-office time and reach out to a couple of those people to schedule lunch or coffee; now or after the holidays.

Develop your Marketing Plan for 2018 Rather than wondering where your next client will come from or why the phone isn’t ringing, take action. Develop a proactive marketing plan for your practice by identifying your most important target audiences, what makes you unique and differentiates you from other lawyers, who your best contacts are (referral sources and prospective clients), and what your overall objectives are for next year. How much money do you want to earn? What practice areas offer the greatest growth for you? Once you have answered these questions, you can find out how to implement your plan by reviewing The Four Pillars of Marketing—best practices for lawyers who want to grow!

Focus on your Referral Sources Take a look at your clients from 2017. Go through each client you would like to do more business with or who was what you consider to be an A-Level client, and identify how you got the

client. As you know, most of your new business comes to you from referrals. Who were your best referral sources in 2017? How can you continue to engage with these people and keep your expertise top of mind with them? Nurturing relationships with referral sources offers a very productive and efficient way to spend some well-earned marketing time. It’s a lot easier to market to someone who has access and entrée into possibly hundreds of prospective clients for you versus trying to attract one new individual or business client. If you’re a family lawyer, build relationships with therapists and financial advisors. If you’re a business lawyer, get to know your local CPAs and bankers. You get the idea! If you find yourself perching on a proverbial branch as a solo practitioner, wondering what the future holds for you, now is the time to take action by implementing the ideas above. Remember that over the holidays is a great time to reach really busy people. They’re likely perching too!  n Terrie S. Wheeler, MBC, is the founder and president of Professional Services Marketing, LLC. Terrie has worked with lawyers and law firms throughout the country to help them develop targeted strategies to develop new business. She teaches marketing and client service at two law schools, and serves as Vice Chair of the Lawyers Professional Responsibility Board. Terrie loves talking and brainstorming with lawyers! There are numerous free webinars for lawyers on our website, www.psm-marketing.com. You can also reach Terrie at 651-295-5544, or at Terrie@psm-marketing.com.

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Workplace Harassment: In Life as in Art! by Kit Goldman and Memo Mendez

A

while back, Ellen DeGeneres did a game with guests on her show. She compared harassment training videos to real life situations and challenged guests to guess the real from the fiction. One of our videos was used to stump the guests. This was well before the Harvey Weinstein, Roy Moore, Al Franken and Matt Lauer revelations and all those in the aftermath—which, sadly, and I mean that, makes our work more crucial than ever. The devastation harassment can wreak on the targets of the misconduct, brands, companies, careers is in the harsh light of day. OK, let’s play. Take a look at this situation and decide … real or fiction? Welcome to EveryCo, a fictional company in your industry. Meet Roger, a respected, likable, high-producing manager with a touchy feely style and edgy sense of humor. Everyone knows he’s got a good heart and doesn’t mean anything by his kidding around, right? Today, Roger is meeting with Margo, an employee, about a promotion. When Margo arrives, Roger’s on the phone, joking lightheartedly with a fellow manager about a gay employee. Margo’s embarrassed by the phone conversation—also by the picture on Roger’s desk of his wife on the beach in Rio. Enough said. Margo’s easily offended. That irritates Roger and raises concerns regarding the promotion. Roger speaks with her candidly, says she’s the most qualified for the opening and he wants her to succeed, but she’s uptight, makes people paranoid. He tells her she needs to loosen up, be part of the team, show up at the parties and the happy hour. After all, she’s Irish, isn’t in her DNA to hit a pub once in a while? Jokingly, he says she “…needs to liberate herself from that Catholic School upbringing.” Well, call it. Real or fiction? Actually, this is part of the opening moments of a powerful, issue-packed episode I and my training partner, Memo Mendez, perform in our “edutainment”-style harassment prevention 28

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training, on-site and online. Think Roger’s behavior is over the top? Think it doesn’t happen except in Hollywood and Washington, D.C.? Not here, not now in our enlightened, politically correct workplaces? Please. Give me your rose-colored glasses and get me a latte with an extra shot. That kind of situation and a vast number of other high-risk scenarios happen all the time, even in world-class workplaces. It’s often unintentional, unrecognized, and unreported—until a lawsuit is filed or the EEOC comes calling. It’s a ticking litigation time bomb which can be defused via meaningful harassment education which teaches:

Awareness

Prevention

Recognition

Response

So—any harassment in Roger’s office? Probably. If so, Margo and Roger, like your employees and managers, have legal rights and responsibilities they need to exercise and fulfill. Do your employees and managers know how to recognize harassment and how to respond should it occur? You need them to! Here are three of the core concepts they need to understand:

Harassment is Unwelcome Conduct If it’s welcome, it’s not necessarily harassment. But welcome to whom? Roger was in a private conversation with a fellow manager when Margo walked in. Maybe the conversation had sexual or homophobic overtones, but it was welcome to the people having it. However, we work in an environment. Sound carries. Images carry. We can’t just think about what’s welcome in our direct interactions, but also to those in the work environment.


Intent vs. Impact Harassment is about impact not intent. It’s defined 100% by the impact on the other person. Intentions are irrelevant. Like the NFL. You’re offside, you get caught, there’s a penalty, whether you meant it or not. As mentioned, Roger is good hearted. He doesn’t mean anything by it. He’s just being himself. Unfortunately, unless he’s enlightened, he’s a runaway train rumbling toward a cliff with the company’s good name and resources aboard.

Consenting vs. Welcome If someone consents to something, it’s probably welcome, right? Let’s say you get off work, it’s dark, you’re in the parking lot, a stranger comes up behind you, puts a 9mm to your head, says “Give me your wallet.” You going to give it up? Darn Skippy. Did you consent? Yes. Did you welcome giving up your wallet? Of course not. The law recognizes that in the workplace people consent to things they don’t welcome for a variety of reasons. Effectively educating your workforce about harassment prevention and proper response to complaints is a great investment, especially when compared with the costs of lawsuits, settlements and compliance audits.

And if, heaven forbid, you end up in court, your efforts at prevention and proper response by management can be major factors in the outcome. Effective training can provide an affirmative defense to a harassment suit. Sadly, some employers choose not to do harassment prevention education. Here are some common reasons why: • Training will just stir things up • It’s a can of worms • Why open Pandora’s Box? • Let sleeping dogs lie On this last point, as we are seeing now, those sleeping dogs do eventually wake up. When they do, effective training is a very good thing.  n Kit Goldman and Memo Mendez are nationally acclaimed trainers, facilitators and experts with Wolf Management Consultants on legal and human issues in the workplace. Kit and Memo’s unique “edutainment” methodology harnesses the power of entertainment to enlighten and educate on dozens of workplace topics, and achieves unsurpassed levels of engagement and retention. Over the past 15 years, their entertainment-based courses have engaged 800,000+ executives, managers, and employees in a vast array of industries. They have appeared frequently as workplace experts in the national media. Call 858-638-8260 or email madams@wolfmotivation.com to learn more.

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Attorney Journal, San Diego, Volume 173