Attorney Journals, San Diego, Volume 209

SAN DIEGO

Volume 209, 2021 $6.95

The Top 10 Workflows to Automate for 2021

Aneesa Needel

Legal Marketers Drive Progress

Keep Your Performers Close and Get the Others off Your Team

Davis Brown Law Firm California Case Summaries

Monty A. McIntyre

Law Firm of the Month

Ioana Good A Rapidly Developing Law Firm Profitability Battle

Michael Short

5 Tips for Litigation in the Time of COVID-19

Morgan Wiener

The Injury Brothers, LLP, San Diego

Employing the Personal Touch for a 100 Percent Success Rate

AC C O M P L I S H E D . I N N OVAT I V E .T R U S T E D

Select Affiliations President, ABOTA San Diego, 2021 President, 22nd District Agricultural Association, 2013-2016 Board of Governors, American Association for Justice, 2010-present Robert L. Habush Endowment Board of Directors, American Association for Justice President, Civil Justice Foundation, 2005-2006

“There is no greater honor than the opportunity to further a mission that aligns so truly with ones beliefs and life-long work.”

FREDERICK SCHENK , Partner, CaseyGerry President, ABOTA San Diego Chapter

President, Lawrence Family Jewish Community Center, 2000-2002 President, Consumer Attorneys of San Diego, 1994 Emeritus Board Member, Consumer Attorneys of California Select Awards San Diego’s Top 50 Influential Leaders, The Daily Transcript, 2019 Lawyer of the Year, Mass Tort Litigation/Class Actions, Best Lawyers 2018; 2014 Community Service Award, San Diego County Bar Association, 2016 Reader’s Choice, Top Influentials San Diego Daily Transcript, 2015

The American Board of Trial Advocates (ABOTA) is dedicated to defending and preserving the 7th amendment, especially, the right to trial by jury.

Diplomate of Trial Advocacy, American Association for Justice, 2014 Best of the Bar, San Diego Business Journal, 2014 Outstanding Trial Lawyer Award, Consumer Attorneys of San Diego, 2011; 2000 Top Attorneys, San Diego Daily Transcript, 2010

Dedicated to the Pursuit of Justice Since 1947.

As one of San Diego’s most established plaintiffs’ law firms, we have successfully represented thousands of individuals and recovered billions of dollars for our clients. Most recently, we set groundbreaking precedent in ecommerce liability, holding online retail giants accountable to consumers. Above all, we remain dedicated to our civil justice system, and to our community.

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2021 EDITION—NO.209

TABLE OF CONTENTS 6 Five Tips for Litigation in the Time of COVID-19

by Morgan Wiener

10 Legal Marketers Drive Progress in Times of Change

by Ioana Good

12 The Top 10 Workflows to Automate for 2021

EXECUTIVE PUBLISHER Brian Topor

by Aneesa Needel

EDITOR Wendy Price

LAW FIRM OF THE MONTH

16 The Injury Brothers, LLP, San Diego Employing the Personal Touch for a 100 Percent Success Rate

CREATIVE SERVICES Penn Creative CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin Jennifer Hadley CONTRIBUTING EDITORIALISTS Davis Brown Law Firm Ioana Good Monty A. McIntyre Aneesa Needel Michael Short Morgan Wiener WEBMASTER Mariusz Opalka ADVERTISING INQUIRIES Info@AttorneyJournals.com SUBMIT AN ARTICLE Editorial@AttorneyJournals.com OFFICE 30211 Avenida De Las Banderas Suite 200 Rancho Santa Margarita, CA 92688 www.AttorneyJournals.com ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

6

by Dan Baldwin

16

22 Keep Your Performers Close and Get the Others off Your Team … Promptly

by Davis Brown Law Firm

26 California Case Summaries

by Monty A. McIntyre

28 A Rapidly Developing Law Firm Profitability Battle

by Michael Short

28

Editorial material appears in Attorney Journals as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journals.

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5 Tips for Litigation in the Time of COVID-19

by Morgan Wiener

B

ack in March, when we naively believed we’d be working from home for a few weeks and then things would be back to normal, much of our litigation came to a halt. Our group had several trials continued, lawyers on all sides needed filing extensions as they adjusted to working remotely, and we wondered how we would conduct upcoming mediations and depositions when we couldn’t gather in person. Now, nine long months later, we’ve learned that the law (like all of us) is remarkably adaptable and cases are proceeding more or less as usual.

Over the last nine months, the lawyers in the Trust & Estate Litigation group have participated in all manner of remote litigation proceedings. We’ve been involved in multiple mediations, depositions, and court hearings, including a multiweek trial in the Denver Probate Court that was conducted entirely via WebEx. Below are a few of our takeaways and tips from this ongoing experiment in remote litigation.

 MEDIATION STILL WORKS Before we’d done several of them, we (and our clients) were concerned that remote mediation would not be as effective as in-person mediation because you wouldn’t be able to build that all important connection and trust with the mediator over video conference. Now, after having done several of them, we are happy to report that remote mediations have been similarly as effective as in-person mediations. We’ve settled a number of cases this way and have heard from mediators that their settlement success rate hasn’t materially changed with the switch to remote mediation.

 EXPECT THE UNEXPECTED While the technology for remote proceedings has worked surprisingly well overall, there are bound to be some issues

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Attorney Journals San Diego | Volume 209, 2021

along with way. Witnesses may have trouble connecting, participants may lose their audio or video signal in the middle of the proceedings, there may be issues displaying exhibits, and participants who aren’t actively speaking may forget to put themselves on mute. When an issue inevitably comes up, stay calm and know that it happens to everyone.

In our experiences, other lawyers, mediators, and judges are very understanding and the proceedings quickly get back on track once the issue is resolved.

 PRACTICE, PRACTICE, PRACTICE While issues are bound to happen, the best way to minimize them is to practice before the proceeding. Not only should the lawyers and paralegals participating in the proceeding familiarize themselves with the virtual platform, including how to display and navigate through exhibits, so should your clients and witnesses. While it may seem shocking to those of us on Zoom calls all day, your clients and witnesses (especially lay witnesses) do not have the same experience litigating virtually so holding practice sessions with them will help your proceeding run more smoothly. The first time your client accesses the virtual exhibit platform should not being during his deposition. In our experience, court reporting services and court staff have been willing to host pre-deposition and pre-trial sessions to walk through the virtual platform and test participants’ connectivity, and we would encourage you to take advantage of those opportunities.

 YOU HAVE OPTIONS WITH EXHIBITS One of the trickier aspects of remote proceedings is working with exhibits. There can be complications with displaying exhibits so that they are large enough to be legible while

still being able to see the other participants (seeing the faces of your witness and the judge during questioning is important!), and it can also be cumbersome to effectively navigate the witness through an exhibit when he doesn’t have his own copy in front of him. Thankfully, you should have a few options and can choose the one that works best for you and your proceeding. For example, some court reporting services have a separate exhibit platform within the virtual deposition platform that you can use, you can display exhibits by sharing your screen, or you can consider mailing the witness paper copies in advance. For our multiweek trial to the Denver Probate Court, the parties hired trial support specialists to display exhibits using Trial Director, and this was key to helping a long, complex trial run smoothly.

Peterson Reporting.

Providing nationwide service since 1986.

 ENJOY THE COST SAVINGS One of the benefits to your clients of remote proceedings is the potential for cost savings. Among other things, remote proceedings eliminate the need for travel (both long distance and between your office and the court or deposition) and may be more efficient as video calls tend to not last any longer than is necessary. The understanding that everyone is participating remotely may also eliminate the need to prepare motions for telephonic appearances or testimony. Remote mediations also allow lawyers to take advantage of the infamous downtime more readily during mediation by working on other matters (and not billing the client whose case is being mediated) during breaks when the client wants to leave the virtual mediation room.

While I personally can’t wait to get back to holding the majority of our proceedings in person and the intangible benefits doing so provides (I’d much prefer to depose a key witness in person instead of over Zoom), the fact that we are able to litigate remotely so effectively is truly remarkable. Many of these takeaways and tips will continue to be relevant when we are hopefully able to transition back to in-person proceedings next year (you should always expect the unexpected at trial), and we should consider incorporating the best parts of remote proceedings into our practice going forward. n Morgan Wiener advises her clients on a variety of matters involving probate and fiduciary litigation, including disputes involving trusts, estates, and protective proceedings. She also assists clients with estate planning and administration.

Morgan is an active speaker on trust and estate matters and blogs about these and related issues at Fiduciary Law Blog (www.fiduciarylawblog.com).

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GOING TO TRIAL – NEED EXPERIENCED HELP?

SPECIALIZING IN BET-THE-COMPANY CASES OVER 65 YEARS OF COMBINED EXPERIENCE REFERRALS/SUBSTITUTIONS ACCEPTED AT ALL STAGES OF LITIGATION, INCLUDING TRIAL • Complete defense jury verdict in real estate dispute and more than $400,000 collected for attorneys’ fees and costs in Batter v. McElhinney, et al. (2019)(Jason Kirby).

• $2.1 million jury verdict for firm client in Doe v. San Diego Unified School District, et al. (2018)(Jason Kirby & Michael Kirby).

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501 West Broadway | Suite 1720 | San Diego, CA 92101 | 619-487-1500 | www.kirbyandkirbylaw.com

Legal Marketers Drive Progress in Times of Change—Law Firm Leaders Weigh In

by Iona Good

In today’s competitive business landscape, many lawyers and law firm leaders understand that it is no longer enough to provide stellar legal services, lawyers also have to understand their client’s business and become their trusted advisors to help them grow. With COVID-19 thrown in the mix, firms leaders have worked more closely than ever with their in-house legal marketers and consultants to lead the charge and help law firms stay ahead of their competition. Below we highlight various marketing partners, general counsel and other lawyers who understand the power of marketing. We also offer examples on how lawyers have grown in partnership with their marketing team. Let’s get to know them: Ed Christian

CEO & Managing Partner, Burr & Forman LLP

How does your marketing and business development department drive strategic plans and lead the charge in a time of change?

Our marketing and business development department has created and leads a crossfunctional team called the office of client value. This team assesses the needs of the firms’ clients through direct support of the client relationship partners and assistance with client-focused teams. This enables us to enhance firmwide client service. The office of client value seamlessly works with the rest of our marketing and business development department to align and drive forward the firm’s strategic plans so that our clients and their needs are always the sole focus of our firm. I’m proud of this platform established by our marketing and business development team, which has provided meaningful conversations and feedback with our clients so that we can continually offer value as a firm.

Michael E. Hollingsworth II

Managing Partner, Atlanta; Member, Executive Committee; Co-Chair, Mergers & Acquisitions; Co-Chair, Investment Management, Nelson Mullins Riley & Scarborough LLP

How have your marketing efforts evolved during the last five years?

Over the past several years, the popularity of social media networks like LinkedIn and Twitter has continued to grow in the legal space, even among attorneys.

I have used more of the LinkedIn posts developed by our marketing group to increase brand awareness among my network and it has worked. When it comes to my personal marketing efforts, I have concentrated my focus on smaller meetings where I can learn more about their needs.

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Attorney Journals San Diego | Volume 209, 2021

How has working closely with your marketing department been beneficial to the firm in the months since COVID-19 began?

Sharing valuable content with connections on LinkedIn and Twitter can be done in a matter of seconds thanks to our marketing department, which produces an array of valuable offerings to get us out there. With the pandemic forcing us to shift our client events from in-person to online, the team has been very creative in coming up with various virtual events that appeal to a broad spectrum—from bourbon tastings to cooking classes.

Mat Rosswood

Chief Operating Officer, Kramer Levin Naftalis & Frankel LLP

What are some new marketing initiatives that your firm has worked on as a result of COVID-19?

Our firm launched a COVID-19 legal response team and a COVID-19 legal resources blog.

The team comprises more than 40 lawyers, who have published more than 150 alerts and updates since forming and launching the blog on March 16, 2020.

We’ve also formed multidisciplinary teams focused on the economic downturn and changing market conditions. Our distressed real estate team, for example, combines Kramer Levin’s market leading real estate and bankruptcy and restructuring practices to help clients navigate real estate workouts, restructurings and recapitalizations. n Ioana Good is the co-chair of LMA’s Professional Advocacy Working Group and served on LMA’s Communications Mapping Group. She is a published author and lectures about new media at Rollins College. She can be reached at Ioana. good@lowndes-law.com.

COMPASSIONATE Treatment RELENTLESS Pursuit of Justice RESULTS-Driven Practice Areas: • Auto Accidents/Car Crashes • Brain Injuries • Construction Injuries • Dog Bites • Medical Malpractice • Premises Liability/Slip and Fall • Product Liability/Dangerous Products • Sexual Assault and/or Harassment • Spinal Injuries • Toxic Tort Injuries • Whistleblower/Qui Tam • Wrongful Death

Results: $5,000,000 Motorcycle Collision/Wrongful Death $3,250,000 Medical Malpractice/Brain Injury $2,100,000 Slip and Fall/Brain Injury $2,000,000 Horse Accident/Brain Injury $1,800,000 Jury Verdict: Car Accident/Neck Injury $1,800,000 Construction Accident/Neck Injury

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The Top 10 Workflows to Automate for 2021

by Aneesa Needel

W

hether this year went too fast (or way too slow), we are somehow almost into 2021 already. There has been a lot of change within corporations and organizations, but one thing remains constant—how can your team do more with less?

Based on what we’ve heard from our clients and what we’re noticing in the market, there are ten processes that stand out as needing to go from manual to automated in the coming year. Whether all of these apply to your department or just one, they’ll help you achieve faster time-to-value and reach your business objectives more easily.

Automating your high-volume processes leads to greater agility for your team and an improvement in the production of higher-value work. How? By reducing the time and resources spent on highly repetitive manual requests and follow-ups.

Here are 10 workflows that are crying out for business process automation in 2021:

1. Legal Services Request Portal It will be a while before someone can physically pop into an office and ask a quick question. With a barrage of emails, conferencing tools, and different ways to communicate?

It’s important that employees have a go-to place to reach out with their legal questions or requests and Legal has the space to triage the most critical while still getting the right answers out in time for everyone. An automated Legal Services Request Portal provides exactly that.

Bonus: Departments across the organization, not just Legal, are constantly being asked questions or their resources being requested; a Services Request Portal can be customized to help any team.

2. Vendor Onboarding How many departments in your organization are onboarding vendors? All of them. How many are ensuring their new vendors have passed all the guidelines your legal and security teams have set in place? Not as many as you should.

Companies are often working off word processors or spreadsheet checklists to ensure that any new vendors,

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Attorney Journals San Diego | Volume 209, 2021

partners, and outside firms have the internal signoffs to start the formal onboarding process. By employing fullcycle automation, Procurement and Legal can work handin-hand to ensure that the correct vendor information is input, syncs with your current systems across the enterprise, and can ensure that onboarding protocols that teams have are complete and have a verified audit trail.

3. Diversity and Inclusion The topic of diversity and inclusion has been increasingly a priority among many executives and legal departments.

There is no one way to take on new requirements from states, associations, and changing company policies. Most companies are looking at Diversity, Equity, and Inclusion from two perspectives: Internally: What are teams doing to make sure that employees feel heard and understood by the company?

How is recruitment currently done and are there ways to open up and become more inclusive?

Externally: Who are the vendors and firms we’re choosing to do business with and are they diverse? How do we ensure we’re picking vendors that are right for us based on specialties and knowledge experts?

Being able to ask the questions you need to address your changing business values in an efficient and effective way is why many companies are turning to automated processes. It also helps that an automated process can provide 100% anonymous functionality so people feel good about responding.

4. Contract Management From initiation of a request through approvals and e-Signatures to storing completed contracts, there’s an importance on secure, virtual contract management that’s become more prevalent as employees are dispersed.

Traditional processes, even before the pandemic, could be riddled with potential errors and time costs in follow-ups, reminders, and pinging questions. Automated contract management that’s customizable to your organization’s processes has the capacity to eliminate or

identify human error and thereby reduce ensuing costs. If the wrong contract is uploaded, a delegate declines to sign, or language needs to be modified, the right stakeholders are notified and can take appropriate action immediately.

No more lost emails or duplicate requests for information.

5. Deal Desk Sales and services teams stop for no one. When a deal is ready, it’s hard to not go straight into contracts. However, most companies require a final step where cross-functional teams must come together to discuss the deal, question, and make decisions, and ultimately approve (or reject) it. This can slow down a sales cycle, and that’s a cardinal no!

Ensure your deals close faster by automating a process built to collect the right information for each stakeholder to review, comment, and add questions, and auto-notify and escalate in a timely manner. It might have once taken days to simply gather the requirements; now it can be streamlined into a far faster end-to-end experience.

6. Self-Service NDAs and Agreements No matter your business, you can’t escape agreement creation, approval, and execution. Templates are normally the way to go, but what happens when both companies want to use their own NDA? Weeks, sometimes months of redlines might fly back and forth. There are other agreements and contracts that need more focused attention and automation allows this process to go much more quickly.

KP Labs, a Mitratech partner, found that by streamlining an NDA process not only were 44% of non-negotiated NDAs completed under one hour, 80% of these NDAs were executed within one day.

We don’t live in a perfect world where NDAs don’t receive redlines and requested modifications; KP Labs also found that 53% of negotiated NDAs, when automated, were completed within 5 days, and 71% were executed in under 10 days. The time savings of your paralegals, lawyers, and general counsel alone make automation a necessity.

7. Anonymous Reporting There are a lot of reasons to build workflows where employees and others can make anonymous reports. From internal company concerns to IP infringement to whistleblowing on other matters, there’s a fair chance that you’re not receiving mission-critical feedback on what might prove to be costly issues. So, allow people the comfort of filing reports and alerts in the first place by automating the process.

8. RFP Selection RFPs are some of the most important workflows and forms used by your procurement team and other departments.

These are vital, and can be complex and time-intensive processes, mostly tracked on intricately designed spreadsheets to capture all information. What do you do when vendors don’t fill out the cells as intended or come back again and again to request more guidance about the process?

Designing an all-inclusive, templatized online smart form that accommodates company need and regulatory-defined mandates makes your vendor and contractor selection processes streamlined and easier. Automating this will help immensely when you send to multiple potential vendors.

9. Employee Onboarding This process, and who is included in it, looks different at every company. Visibility can be lost as this proceeds from recruitment to HR to a multitude of other departments who are enlisted in the employee onboarding process. It’s also a process that sees a lot of time spent on following up with colleagues and the employee.

Ensure that you’re responding quickly and maintaining your onboarding SLAs with an automated workflow that incorporates all the details your organization needs to be handled, resulting in a smoother first day for the new hire.

That, in turn, gives them a positive initial impression of your enterprise, helping with retention.

10. Back-to-Office Continuity The advent of COVID-19 and the fact of how everyone needed to pivot to work-from-home situations has changed the way businesses look at their resiliency plans. Knowing what processes and actions to set up in response to current conditions, or in consideration of future developments, will ease any potential disruptions to business as usual.

Workflow automation has been pivotal in setting up an agile environment that’s able to manage changes that can happen almost instantly.

In the case of the pandemic? Businesses must deal with the issue of who’s requesting to stay remote versus who is willing to return to the office. But they’ll also have to securely request and route the information that will help HR and executives make the decisions on in-office employees and staff versus who gets to keep working in their bunny slippers. Automating these processes will make it far easier for all concerned. n Aneesa Needel is a Product Marketing Manager for Legal Operations and is dedicated to ensuring Mitratech’s platform and tools are understood and provide continuous value in the market.

Attorney Journals San Diego | Volume 209, 2021

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Attorney Journals San Diego | Volume 209, 2021

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INJURY BROTHERS

© Bauman Photographers

THE

©

Law Firm Co-Founders: Macyh Nawaey and Elias Nawaey

JOURNALS

Employing the Personal Touch for a 100 Percent Success Rate

LAW FIRM

OF THE MONTH

2021 2020

by Dan Baldwin

Clients want, and need, a personal touch to their case. They need an attorney they can call, text, or e-mail and get a fast response. More than that, they need someone they can open up to and confide in with their problems. We are a family-based law firm.

Support and care are at the very core of our principals,” says Macyh Nawaey, Founding Partner of The Injury Brothers, LLP, a personal injury firm. His co-founder in law and in life is his brother Elias Nawaey. The firm has a 100 percent success rate in just its first year in business.

Nawaey says that times have changed radically for the legal profession and that now more than ever the personal touch is required. Billboards and expensive advertising may generate interest for a firm, but technology and the expertise to use that technology for one-on-one service is supplanting the old ways of attracting and doing business.

The advent of social media, for example, has made the world of communication smaller, which gives smaller and more savvy law firms a real competitive edge in the marketplace.

Nawaey says, “It’s amazing that so many people in our profession think the everyday person is impressed with Big Law, when in fact they are not. Big Law is hurting financially and will be downsizing in the near future. Those of us who early on saw the need for restructuring for better and more efficient service are already ahead of them.”

Aspiring to Inspire by Living the American Dream Macyh and Elias Nawaey immigrated to the United States from Afghanistan because of the Cold War and the invasion by the Soviet Army. Nawaey says Afghanistan was a democracy, and it was invaded by the Communists due to the leaders refusing to change their system/beliefs. “We couldn’t live under such a system.”

They have lived in San Diego ever since moving to America, 26 years ago. Their father started a small business

that was enough to allow them to eventually move from an apartment and become homeowners. Their mother was a stay-at-home mother/wife, who made sure the brothers pursued their education for a better future. “Both of our parents are simply real-life angels to us. They instilled the values that we have carried into our careers and have carried into our law practice,” Macyh says.

Although their family had been very wealthy in Afghanistan, they arrived in America virtually penniless.

The brothers grew up in a world of financial hardship. Elias worked while Macyh finished law school, so that the family would have some income and could survive. After Macyh finished law school, he worked to help the family while Elias went to law school. These challenges were a hardship which lasted several years, yet through teamwork, hard work and dedication, they not only survived, but eventually began to prosper. “The key is to never give up on your dreams and work towards them daily. I’ve never had a plan B and that’s why I’m here today.”

“Growing up we never knew a single attorney, and the thought of becoming an attorney seemed a million miles away. We worked hard and chased our dreams to become attorneys. The understanding of the legal system and the beauty of our constitution and justice system, made us want to be a part of it.

“Elias and I are immensely proud of our heritage, but we came to America and have achieved the American Dream. We are extremely grateful to this country and to the opportunities we have been given. Our commitment to serving people through the law is one of our most profound ways of expressing that belief,” Nawaey says.

Part of that dream, something that was never far from his mind, was the concept of creating a successful and profitable law firm with his brother. “I know the work ethic and experience my brother brings to the table and I’ve seen the success he’s already had. Partnering up was an easy decision.”

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SD Lawyer Becomes The Injury Brothers, LLP

© Bauman Photographers

Macyh Nawaey started his own firm, SD Lawyer, immediately upon graduating from law school.

“I could have gone the more traditional route through work at a large firm or for some government entity, but I have always believed in the value of chasing your dreams and that God will open the right doors for you. Despite the lack of faith some of my friends and fellow students expressed, I knew I could do it,” he says.

Lacking experience as an attorney and as the manager of a business, Macyh was confident, believing in himself and that if he tried hard enough, applied himself, and continued to learn he would slowly, inevitably figure it all out. He ran the firm for almost six years and built it into a successful and profitable firm.

The long-held dream of owning a law firm with his brother remained foremost in his mind, but Elias had moved to the Bay Area where he practiced Workers Compensation law.

Three years later he moved back to San Diego. The timing was perfect. The slow-down in business due to the COVID-19 outbreak was in one way beneficial to his plans. “Although I wish we never had to deal with this virus, I realized how I

could use this down-time to my advantage. Life will always throw us curveballs and we are going to have many ups and downs. But I try and adapt my best to not only survive, but to thrive,” he says.

He and his brother formed The Injury Brothers. They now focus their efforts to help clients with work-related incidents, car accidents, dog bites, slip and falls, motorcycle accidents, and even independent contractors who work on another’s property.

Macyh Nawaey has a passion for TBI cases and has had significant success fighting for clients who have suffered a TBI. The firm works with top-notch neurologists, neuropsychologist, brain MRI centers, and other specialists and health care providers. They believe firmly that the human brain is something priceless and must always be rigorously evaluated and represented in any serious injury.

Elias Nawaey specializes in work-related injuries. One of the challenges the firm faces are flaws in a Worker’s Compensation system that leaves unrepresented applicants vulnerable to getting nothing and even ending up having to pay their own medical bills for injuries that happened on the clock and were due to no fault of their own. “Insurance companies and employers are increasing denying legitimate claims and seeing who is smart enough to call an attorney.” The firm does not

Macyh Nawaey and his beautiful wife Sahar

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Attorney Journals San Diego | Volume 209, 2021

© Bauman Photographers

Elias Nawaey, his beautiful wife Mariam and their son Noah

just settle for what defense firms and insurance companies think an injured worker is worth. They fight vigorously to get their clients to earn a figure that compensates them for the permanent disabilities they have sustained, and the lifetime of hardship and future medical expenses involved. “When someone gets hurt at work, they already have a target on their back from their employer. Their friends from work will show up and testify against them. It gets ugly. Not only do they have a life-altering injury, but stand losing their home, spouse, you name it.”

Nawaey says a large part of their motivation for going the extra distance for their clients is a commitment to seeing that others are not denied the benefits of the American Dream. They have recovered several millions of dollars in settlements and verdicts. They are proud to say their truly landmark cases are those where they fight for a client who was turned away by other firms.

The case of a grandmother who was attacked by a pit bull is just one example. She suffered a heart attack due to the high levels of stress from the attack. The defense/insurance fought it claiming that she was old and that she had a history of heart issues. They even claimed that the pit bull only knocked her down but did not bite her. Nawaey says, “Of course, we were successful, and got every single dollar out of

that homeowner’s insurance policy. We did not back down nor did we settle for anything less.

“Believe it or not, two other firms turned this family away.

They came to us and seemed so broken, like they had given up. You can’t imagine how rewarding it is to help someone put back together the pieces of a broken life.”

“ … You can’t imagine how rewarding it is to help someone put back together the pieces of a broken life.”

“Despite the obvious risks associated with high-risk occupations, workers still face pushback from their employers and the fear of retaliation keeps them from reporting their injuries or seeking an attorney. Police officers, firefighters, healthcare workers, etc. routinely get denied and these are some of the toughest jobs. Now, more than ever, it’s really a privilege to help our first responders and those on the frontlines of COVID-19; CA has recently amended state policy, so workers compensation coverage extends to COVID-19 infections.”

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© Bauman Photographers

Working with Others Today While Looking to the Future Nawaey says the brothers have an aggressive and attorneyfriendly referral policy. “We love being referred a case and for that referring attorney to be listed as a co-counsel attorney who can learn about how we handle these cases and who can have a legitimate percentage in the outcome of the case. We are very honest and stand by our word. We make sure each attorney who refers us a case gets a share in the case. We will go as far as co-counseling the case with the referring attorney, to ensure they have a generous percentage and interest in the case.” Approximately 25 percent of the firm’s business is in working with other attorneys and legal firms.

Nawaey has big plans for The Injury Brothers. “Success requires dreaming and dreaming big. Whenever I share my thoughts, people always think I am reaching too far. But as dreamers, we must work hard and continue to dream. I see

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Attorney Journals San Diego | Volume 209, 2021

The Injury Brothers becoming a statewide firm that has multiple offices throughout the state and handles thousands of cases,” he says. They are now developing plans for expansion into Nevada, Arizona, and other states in the near future.

Nawaey says, “At the end of the day, we all do this, so that we can feed our families and take care of them. The legal profession deserves better advocates, it deserves attorneys who share the riches of bigger cases with those who helped them or who referred them the case. It’s our dream and our goal to be those attorneys.” n Contact The Injury Brothers, LLP 101 W. Broadway, Suite 1770 San Diego, CA 92101 858-800-4000 www.TheInjuryBrothers.com

Jan M. Eckermann MD, FAANS Diplomate, American Board of Neurological Surgery Brain and Spine Surgeon

Jan M. Eckermann, MD, FAANS is a boardcertified neurosurgeon with over 10 years of experience in managing complex neurosurgical patients.

We partner with personal injury attorneys to better serve your clients.

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Dr. Eckermann has two locations: Newport Beach Office 1617 Westcliff Drive, Suite 203 Newport Beach, CA 92660 Phone: 949-514-7456 Fax: 949-209-4687

janeckermannmd.com

Bakersfield Office 2323 16th Street, Suite 407 Bakersfield, CA 93301 Phone: 661-479-7240 Fax: 661-843-7882

Keep Your Performers Close and Get the Others off Your Team … Promptly

by Davis Brown

O

ur experiences with COVID-19 demonstrated something that your grandmother probably already told you—a problem ignored is not a problem solved. While procrastination can sometimes be a good thing, like Brussels sprouts that go bad and then you don’t have to eat them, it can also set you up for failure.

Consistently, beginning in March, employment attorneys heard about the problems managers were having with various members of their teams—“I know I should have dealt with this months ago but … ” or, “I really wish I would have dealt with this before COVID-19 hit,” demonstrating the additional stress that poorly functioning teams had on simply getting the job done.

Ostrich Approach Many take the ostrich approach hoping a problem will simply go away if they don’t pay any attention to it.

Unfortunately, problems with teams and how teams are structured rarely magically disappear. We know it can be hard to focus on team structure and dynamics for a variety of reasons: • It can be difficult to speak with others about how their communication or workstyles impact a team, especially when these elements are not easily quantified • Upper-level managers might duck difficult discussions because they are afraid of hurting people’s feelings or simply because they don’t have time However, the problem is a leaky faucet that not only drives you crazy with the drip, drip, drip but also loses you hundreds of gallons of water per year. The same can be true of your team when you lose quality employees, momentum, and good ideas to problems that you simply choose not to resolve.

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Failed Promotions You have a great employee. He or she is wonderful, fabulous, you love them, and then you promote them out of their skillset. All of a sudden, they fail to perform, and the team starts to suffer. The issue to review here is whether this promotion was truly out of the anticipated skillset of the employee. In other words, is this something that we may be able to fix with training, or is this fundamental to how this person interacts as a team lead or manager? If there is potential that additional training may address the performance concerns, you need to do that sooner rather than later before bad habits get ingrained and the team itself is demoralized.

Discipline Avoidance Employees may be relatively scary for a wide array of reasons, personality, fear of litigation, or fear of the amount of disruption the employee will cause when counseled.

Employers frequently say, “I try not to discipline him because he pouts for weeks on end and everything is an uproar when we try to do it.”

When the employment attorney asks whether he/she improved performance, a typical response is, “for a day or two but really not consistently.” These problems require direct, specific, and fairly straightforward communication, potentially a performance improvement plan and if consistent and sustained improvement is not seen, further disciplinary action including termination. Work with your attorney to manage litigation risk and timing but also remember that if you are scared of an employee, what about their subordinates and fellow co-employees? How disruptive will keeping them be to the team?

No Time Yep, we get it. Nobody has time. Nobody wants the drama.

Nobody wants to deal with it, and everyone has something better to do. However, how much more time will it take when you have to rehire an entire team because everybody else walked out the door and how much time does it take every day to deal with the minor irritations, the poor performance, or the problems amongst your team members?

Small Workforce Pool

We Know Marketing Like You Know The Law

It’s hard to hire good people. Here in Iowa, we have a lot of jobs that might remain unfilled for a significant period of time, especially in rural areas. But like the prior categories, a bad employee only places burdens on other employees to pick up the slack and do the work and creates significant emotional stress in the workplace.

Teamwork Other issues can sometimes result when each individual member of the team is fine, but they don’t work together well, or you are missing crucial elements. COVID-19 certainly impacted employers across the board. If your team didn’t have a problem solver and someone who would think strategically and long term, you are likely to have suffered significant issues given the fast pace of business response to the pandemic as well as shifting regulations and requirements. Teams require a balance of skills and talents before the crisis hits.

Expectations Be transparent with expectations, goals, and what it takes to be a success. Employees can’t meet a standard you won’t tell them about. Accidentally sabotaging your team because you are too busy or worried about who gets credit hurts everyone, including you.

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

• Writing for the layperson • Putting together a presentation • Developing a marketing strategy

The Big Picture

• Sprucing up your website

Much of the COVID post-game assessment focuses on the issues of being kind, giving grace, and taking a deep breath.

All wonderful advice—but kindness includes being clear about performance expectations and skillsets. No one likes to come to work every day knowing they are failing—you do your employees, yourself, and your company a service by providing clear feedback and expectations. n

• Designing an ad, booklet, flyer or brochure • Establishing a better logo, mission statement or tagline

Founded in 1929, Davis Brown Law Firm provides comprehensive legal services to clients ranging from private individuals to Fortune 500 corporations, as well as multinational corporations, not-for-profit groups, the state and its agencies and political subdivisions, hospitals, and regulated industries. The firm’s clients conduct business on a local, state, national and international basis. Learn more at www.davisbrownlaw.com.

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California Case Summaries New California Civil Cases

by Monty A. McIntyre, Esq. These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https://californiacasesummaries.mykajabi.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty’s case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.

CALIFORNIA COURTS OF APPEAL Arbitration Brown v. TGS Management Co., LLC (2020) _ Cal.App.5th _ , 2020 WL 6040053: The Court of Appeal reversed and remanded the trial court’s order confirming an arbitration award in favor of defendant in an employment contract dispute with defendant’s former employee, plaintiff. The arbitrator ordered plaintiff to pay defendant $652,243 for the refund of a deferred 2014 bonus, plus interest from December 24, 2016, through the date of the award in the amount of $134,031. It also awarded defendant $2,462,721 for its attorney fees and $172,682 for its costs, and interest on the entire award from the date of the award until paid. The Court of Appeal concluded the arbitrator’s decision was inconsistent with plaintiff’s right to work in his chosen profession as protected by Business & Professions Code, section 16600 (section 16600). The confidentiality provisions in section 4 of the employment agreement severely restricted plaintiff’s right to work in clear contravention of section 16600. Despite the facial invalidity of these provisions, the arbitrator did not declare them void and unenforceable. Instead, the arbitration award allowed the provisions to stand as a perpetual restriction on plaintiff’s right to compete with defendant. Because the arbitration award was inconsistent with the protection of plaintiff’s rights under section 16600, the award exceeded the arbitrator’s powers, and the trial court erred in denying the petition to vacate the arbitration award and in entering judgment on the award. The arbitrator also erred in finding that plaintiff forfeited the deferred bonus. (C.A. 4th, filed October 13, 2020, published November 12, 2020.)

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Olson v. Lyft, Inc. (2020) _ Cal.App.5th _ , 2020 WL 6336102: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration in response to plaintiff’s complaint alleging six claims under the Private Attorney General Act (PAGA; California Labor Code § 2698 et seq.). Plaintiff’s terms of service with defendant included an agreement he could not bring a PAGA claim in court and that disputes with defendant must be resolved by individual arbitration. Based upon the analysis in Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, the Court of Appeal rejected defendant’s argument that Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 was no longer good law in light of the 2018 opinion of the United States Supreme Court in Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612. (C.A. 1st, October 29, 2020.)

Business and Professions Code Quidel Corporation v. Super. Ct. (2019) 39 Cal.App.5th 530: The Court of Appeal granted a writ petition directing the trial court to vacate the summary judgment it granted in favor of defendant.

The Court of Appeal ruled that Business & Professions Code 16600 does not invalidate all contractual noncompete provisions outside the employment context. The Court of Appeal issued its original opinion in 2019. After that opinion was issued, a petition for review with the Supreme Court was filed, which the court granted and deferred pending consideration of Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130 (Ixchel).

Ixchel held “a rule of reason applies to determine the validity of a contractual provision by which a business is restrained from engaging in a lawful trade or business with another business.”

(Id. at p. 1162.) After the Supreme Court issued its decision in

Ixchel, it transferred this matter back to the Court of Appeal. The Court of Appeal reconsidered the case and again determined that the trial court improperly extended, beyond the employment context, the holding from Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937 to a provision in a business agreement between two companies. (C.A. 4th, November 6, 2020.)

Civil Code Brennon B. v. Super. Ct. (2020) _ Cal.App.5th _ , 2020 WL 6689639: The Court of Appeal denied a petition for writ of mandate seeking to overturn the trial court’s order sustaining a demurrer, without leave to amend, to petitioner/plaintiff’s cause of action alleging violation of the Unruh Civil Rights Act (Unruh Act; Civil Code, section 51). Ruling on issues of first impression, the Court of Appeal concluded that public school districts are not business establishments subject to the provisions of the Unruh Act. The Unruh Act’s statutory language makes explicit that any violation of the Americans With Disabilities Act (ADA; 42 U.S.C. section 12101 et seq.) by a business establishment is also a violation of the Unruh Act. Because public school districts are not business establishments, they are not liable under the Unruh Act for discriminatory conduct actionable under the ADA. (C.A. 1st, November 13, 2020.)

Niedermeier v. FCA US LLC (2020) _ Cal.App.5th _ , 2020 WL 6375408: The Court of Appeal reversed the trial court’s order, after the jury returned a verdict for plaintiff in her action for damages under the Song-Beverly Consumer Warranty Act (the Song-Beverly Act; Civil Code, section 1790 et seq.), denying defendant’s motion to reduce plaintiff’s damages by the $19,000 credit plaintiff received towards the purchase price of a new vehicle when she traded in her defective Jeep to a GMC dealer.

The jury awarded plaintiff damages of $39,584.43 (including $39,799 for the purchase price of the Jeep plus certain specified charges, taxes, and fees; $5,000 in incidental and consequential damages; and a deduction of $5,214.57 reflecting the use plaintiff obtained from the vehicle before first bringing it in for repairs) and also awarded a civil penalty of $59,376.65, one-anda-half times the damages award, for a total award of $98,961.08.

As a matter of first impression, the Court of Appeal ruled that restitution under the Song-Beverly Act does not include amounts recovered from the trade-in of a defective vehicle.

Granting plaintiff a full refund from defendant in addition to the proceeds of the trade-in, would put her in a better position than had she never purchased the vehicle, a result inconsistent with “restitution.” The Court of Appeal reduced the award to plaintiff to $61,753.29, reflecting damages of $20,584.43 and a civil penalty of $41,168.86 (the maximum allowed of 2 times actual damages). The judgment, as modified, was affirmed.

(C.A. 2nd, October 30, 2020.)

Civil Procedure Cornerstone Realty Advisors, LLC v. Summit Healthcare etc.

(2020) _ Cal.App.5th _ , 2020 WL 6304989: The Court of Appeal affirmed in part, and reversed in part, the trial court’s orders awarding defendants over $586,600 in sanctions in addition to terminating sanctions against plaintiffs. The Court of Appeal concluded that, with the exception of the amount of attorney fees incurred by defendants before July 12, 2016, the trial court’s decision to impose monetary sanctions in the amount of $586,600 was consistent with the relevant law and principles governing discovery sanctions and was a reasonable exercise of the court’s discretion. Although defendants had requested over $2 million in monetary sanctions, the trial court was not required to accept that figure, and had the authority and the duty, under the applicable principles, to determine for itself the reasonable amount of attorney fees resulting from the misuses of discovery to impose as monetary sanctions. The Court of Appeal also concluded that substantial evidence supported the trial court’s finding that plaintiffs’ law firm did not advise the misconduct resulting in the discovery sanctions. (C.A. 4th, October 28, 2020.)

Torts Hoffman v. Young (2020) _ Cal.App.5th _ , 2020 WL 6375391: The Court of Appeal reversed the judgment for defendants, following a jury trial, on plaintiff’s causes of action for general negligence and premises liability. The jury had found defendants were immune from liability for the collision under the recreational use immunity in Civil Code section 846 (section 846). Plaintiff was seriously injured when her motorcycle collided with another motorcycle ridden by defendant Gunner Young (Gunner) on a motocross track located on real property owned by Gunner’s parents who were also named defendants. Both Gunner and his parents lived on the property. Gunner invited plaintiff to come onto the property, drove his truck to her house, loaded her motorcycle into the bed of the truck, and drove her to the property. There was no evidence that Gunner’s parents prohibited him from inviting guests onto the property. The Court of Appeal concluded that the exception to the recreational use immunity, when the injured person is expressly invited onto the property by the landowner (section 846(d)(3)), applied to this case. The Court of Appeal held that, where a child of a landowner is living with the landowner on the landowner’s property and the landowner has consented to this living arrangement, the child’s express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of section 846(d)(3), unless the landowner had prohibited the child from extending the invitation. In this case Gunner’s express invitation of plaintiff stripped his parents of the immunity that would otherwise have been provided to them by section 846.

(C.A. 2nd, October 30, 2020.) n

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A Rapidly Developing Law Firm Profitability Battle

by Michael Short

A

s a result of the global pandemic and the impact that it has had on law firm operations, platforms, and business models, there is a rapidly developing competitive threat that could, particularly in small markets (by geography or by the small number of participants in a highly competitive space), upset the competitive balance among law firms. This newfound disruptor emerges from the broad concept of “profitability” because any law firm partnership, right now, can create a more disruptive operation over the coming years by keeping a significant portion of its reduced remote-working expense structure, thus generating relatively higher profits, and putting those profits to good and disruptive uses. Such an outcome could throw any longstanding set of firm rankings and pecking-orders out of whack and would, in turn, necessitate a strategic response from others. The net result would be a profitability “arms race.”

Due to the pandemic and remote working, the two largest expense line-items in most law firms’ profit and loss statements—occupancy and staff compensation—are in play, allowing them to potentially be reset at much lower levels. This is an unprecedented situation and a unique opportunity for any partnership that wants to make a strategic move of any degree.

The simplest example of this involves expiring leases. What if your firm’s largest lease doesn’t expire for 10 years but a major competitor has an expiring lease and gives back 20% of the occupied space in its largest office, while also resetting rents in a down market? Due to circumstances beyond your control, you now have a competitive imbalance to address. If your competitor invests much of its newfound profits in programs such as focused recruiting, strategic business development, and/or innovative improvements that clients notice and value, you will have an ever-increasing competitive imbalance across a decade that allows this firm to either catch up with, or pull away from, your firm’s strategic position.

A much more remote, but not impossible, example would be a lesser competitor who is tired of being a lesser competitor taking full advantage of this situation, allowing a significant portion, or all, of the lawyers and staff to continue to work remotely and reducing the number of administrative support staff to the number needed for a truly remote operation (which is fewer than the number needed for full inoffice operations). The resulting increase in profits from such decisions would be very significant and would—if applied effectively—create major marketplace disruption.

To be successful, all law partnerships must find the profitability level that is commensurate with the value of the services rendered and also: • Retains existing talent.

• Attracts required talent.

• Funds needed capital improvements.

• Pays for needed strategic investments; and • Is reasonably close to the profitability level of key competitors.

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Many law partnerships are currently planning how they will operate in a post-COVID-19 world. Such discussions feature questions such as: • Who gets to continue to work remotely?

• Can we properly develop young talent remotely?

• What is needed to maintain the firm’s culture and connect it to young lawyers and staff?

• How many administrative support staff members do we really need? And what kind of skills should they have? (Do we even have the right people?)

• What are we going to do with each expiring lease?

Most partnerships approach these questions with an implicit goal of minimizing change and disruption while reaping as much benefit as possible from each opportunity. They also generally assume that all competitors will respond in roughly the same manner and there will be no resulting outliers … as is often the case in the law firm world.

For those partnerships that choose to return to a more traditional approach to practicing law (i.e., how they operated in February of 2020), everything will be fine unless/until a key competitor either a) benefits from good fortune and timing (of an expiring lease per my example above) or b) chooses to take a more aggressive posture.

The resulting profitability gap—particularly in a small market— can develop into a major disruptive and re-defining force that will require an equally aggressive and challenging response from the traditional partnership.

Our industry (and, of course, our world) changed dramatically this year but our situation remains dynamic and developing. Now is NOT the time to be sentimental and drawn back to the old days. Rather, now is the time to: • Keep the “wins” realized while working remotely (e.g., paperless practice, speeding up the billing and collections cycle, getting time entered regularly).

• Evolve and push any changes to the platform, systems, and processes right up to the point of serious discomfort, rather than slipping back into the high comfort zone of February; and • Watch the moves and changes that key competitors are taking or considering and respond quickly when appropriate.

Failure to do these will result in short-term ease and comfort … and, quite possibly, serious long-term threats that will require very painful and costly changes later on. The choice is yours. n Michael Short is a founding Principal of LawVision. He counsels law firms around the world on strategic, management, compensation, and financial issues. Over the course of his over three-decade long career as a consultant to the legal industry, Michael has worked with well over 700 law firms. His client base ranges from small, “local” firms in many countries to large, multinational operations.

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