Attorney Journal, San Diego, Volume 163

SAN DIEGO

Volume 163, 2017 $6.95

Learning to Learn

Mike O’Horo Delegate, Don’t Abdicate, Client Trust Accounting

Sheila M. Blackford

Five Ways to Know What’s Up with Clients and Staff

Merrilyn Astin Tarlton

Law Firm of the Month

McIntyre’s Civil Alert Organized Succinct Summaries

Monty A. McIntyre

Seven Disciplines Of a Leader

Jeff Wolf

Gomez Trial Attorneys San Diego Out of the Shadows: Into Survival

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2017 EDITION—NO.163

TABLE OF CONTENTS 6 Your Network is Your Net Worth

by Ruth Carter

8 Learning to Learn

by Mike O’Horo

10 Five Ways to Know What’s Up with Clients and Staff

by Merrilyn Astin Tarlton

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12 COMMUNITYnews EXECUTIVE PUBLISHER Brian Topor EDITOR Wendy Price CREATIVE SERVICES Skidmutro Creative Partners

16 Gomez Trial Attorneys San Diego Out of the Shadows: Into Survival

CIRCULATION Angela Watson PHOTOGRAPHY Chris Griffiths STAFF WRITERS Jennifer Hadley Patricia Klier Karen Gorden

LAW FIRM OF THE MONTH

by Jennifer Hadley

24 Delegate, Don’t Abdicate, Client Trust Accounting

by Sheila M. Blackford

26 McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre

28 Seven Disciplines Of a Leader

by Jeff Wolf

CONTRIBUTING EDITORIALISTS Mike O’Horo Monty McIntyre Jeff Wolf Ruth Carter Sheila Blackford Merrilyn Astin Tarlton 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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Your Network Is Your Net Worth

by Ruth Carter

On a recent call with my business mastermind group, one member shared how quickly he was able to overcome a challenge in his company by tapping into his network for suggestions. He summed up the process with, “Your network is your net worth.”

He’s absolutely right­—success doesn’t happen in a vacuum.

WHAT DOES YOUR NETWORK MEAN TO YOU? When I look at my own journey as a lawyer and business owner, much of my success can be attributed, in part, to working with amazing lawyers; using a skilled accountant, bookkeeper, graphic designer, business coach and marketers; and being part of local, national and international communities. I’m part of a cadre of phenomenal people I can turn to when I need help and to whom I can refer others who need them. Even when I was a solo practitioner, I never felt like I was alone.

I kicked the quote from my mastermind group out to some of the people in my network and asked for their feedback. The diversity and thoughtfulness of their responses was inspiring.

They gave me the warm fuzzies, and made me proud to know so many amazing people.

PERSONAL CONNECTIONS Networking is more than going to events and exchanging cards with people. It’s about relationships, real relationships.

Everyone in your network should be someone you’d want to share a meal with. Hopefully, you can make it a priority to see them in person, or at least to talk by phone or via Skype.

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Rackham Karlsson, owner of Zephyr Legal Services in Cambridge, Mass., shared: Anytime you’re building your career, there’s no substitute for personal connections. That’s true whether you’re a rainmaker looking for clients or an employee searching for the right job.

Someone who knows you is in a much better position to send you a solid referral or connect you with an opportunity that might not have been available to you otherwise.

His sentiment was echoed by Mitch Jackson, a California personal injury lawyer and founder of Legal Minds: Networking isn’t about keeping score. It’s about helping others, adding value, and building relationships. Networking is one of the most important things we do each day.

START BY BEING HUMAN Getting business is a byproduct of being active in a strong network. Relationships only develop over time, and connections need to be nurtured if they’re going to be beneficial. It’s not just about promoting yourself as an attorney. Be a person first.

When people connect with and like you, they’ll send you their business. Former securities lawyer Katy Goshtasbi is the founder of Puris Personal Branding, a global brand development company for lawyers. In her own words: I always tell my lawyer clients that their brand is made up of so many different factors, stemming first from being an authentic human. Once you realize that it’s all about you the person, not you the lawyer, then you can start to choose to see your network

differently. Your network is not just fellow lawyers who can send you business. Your network is very vast and rich. It’s made up of humans that can support you and receive support from you—both on a personal and professional level.

I shut a guy down during a networking coffee when he tried to give me his pitch about his company. I wanted to know who he was as a person.

I was going to remember that much more than his investment company’s services—and friends don’t give friends bad referrals.

HOW TO IMPROVE YOUR NETWORK Michelle Ogborne, a family law and estate planning lawyer in Phoenix, is one of the most well-connected lawyers I know. And she does a phenomenal job of keeping up with everyone and facilitating connections.

If you think you need to put more energy into developing your network, she suggests this course of action: 1. Make a list of the professions that complement but do not compete with yours (remember to think outside the box).

2. Call two professionals today and set up meetings to discuss ways to collaborate.

3. Start every networking meeting by asking what you can do to help that person build their business (if they are a good referral partner, they should ask you the same question).

Your main network should consist of people whose company you enjoy and with whom you can have a strategic relationship where you support each other. This is one of the reasons I love being in a mastermind group of all types of entrepreneurs—photographers, lawyers, graphic designers, marketers. Everyone brings something of value to the table, and we benefit from learning from one another’s experiences as business owners.

FIVE SIMPLE WORDS The value of a network is not limited to lawyers. It can help any entrepreneur or professional. Any person, really. But remember, having a network is a privilege, contingent on reciprocation and trying to give more than you hope to get. Keynote speaker, author and entrepreneur Peter Shankman stated it eloquently: The goal of a network is to figure out what YOU can provide to IT, and not the other way around. Do that, and everything you want will come to you. Why? Because people tend to distribute opportunities to people they trust, and the best way to be trusted starts with five simple words: How can I help you? n Ruth Carter is a lawyer, writer and speaker. She is Of Counsel with Venjuris, focusing her practice on intellectual property, social media, First Amendment and flash mob lab. Named an ABA Journal 2012 Legal Rebel, Ruth is the author of the ABA book The Legal Side of Blogging for Lawyers, as well as Flash Mob Law: The Legal Side of Planning and Participating in Pillow Fights, No Pants Rides, and Other Shenanigans. In Nothing But the Ruth, she writes about the lessons she’s learning while building her practice. She blogs at UndeniableRuth.com. Follow her on Twitter @ rbcarter. Previously published in Attorney at Work.

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Learning to Learn

by Mike O’Horo For 20 years, Mike O’Horo has been known by lawyers everywhere as The Coach. He trained more than 7000 of them, generating $1.5 billion in new business. Mike can be reached at mikeohoro@rainmakervt.com.

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any lawyers struggle to learn business development skills, in no small part because they don’t embrace the need to get better at it. Oh, sure, they say all the right things, but when it comes down to setting aside time (and sometimes money) and committing to learning, applying, getting feedback, and practicing, they have lots of reasons why it can’t happen. It brings to mind the quote by entrepreneur Jim Rohn: “If you really want to do something, you’ll find a way. If you don’t, you’ll find an excuse.”

I borrowed today’s title from an article in the March 2016 issue of Harvard Business Review, which points out that today’s pace of change forces us to understand and quickly respond to big shifts in the way companies operate. The author talks about “resisting the bias against doing new things, scanning the horizon for growth opportunities, and pushing yourself to acquire radically different capabilities—while still performing your job. That requires a willingness to experiment and become a novice again and again: an extremely discomforting notion for most of us.”

We know from the seminal work of Dr. Larry Richard that lawyers’ low resilience score makes this discomfiture particularly acute for them.

The HBR authors identified four attributes required to surmount this: • Aspiration • Curiosity • Self-Awareness • Vulnerability

We must truly want to understand and master new skills; see ourselves very clearly; constantly think of and ask good questions; and tolerate our own mistakes as we progress along the learning curve.

Here are some mental tools you can develop to boost all four attributes.

Aspiration It’s easy to see this as a fixed, binary thing: You want to learn a new skill or you don’t; you have ambition and motivation or you lack them. But great learners can raise their aspiration level from resistance, where we focus on the negative and unconsciously reinforce our lack of aspiration, to embrace by focusing on the positive—what we’ll gain from learning— and reaping the rewards of progress. Shifting your focus from challenges to benefits is a good way to increase your aspiration to do things that are beneficial, but that you don’t really want to do.

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When I discuss goals with the lawyers I coach, I ask “Why do you want that? Why is that important? What will it do for you?” Visualizing the practical result of reaching a goal makes it real, and increases their willingness to do what’s necessary to get there.

Self-Awareness When it comes to the need for learning, assessing what we know and don’t know, what skills we have and don’t have, we come up short. In one study, 94% of college professors reported that they were doing “above average work.” Statistically, almost half must be wrong. Only 6% saw themselves as having a lot to learn. When you don’t perceive a deficiency, you have little appetite for improvement. This is known as “Unconscious Incompetence.”

Curiosity Curiosity makes us try something until we can do it. Instead of focusing on and reinforcing initial disinterest in a new subject, ask yourself “curious questions” about it and follow those questions up with actions. You can increase your willingness to tackle necessary tasks by thinking about how you could do the work differently. In other words, shift from “I don’t like BD,” to “How might I do it differently to make it more interesting?”

Take just one step to answer the question: Read an article, query an expert, find a teacher, join a group—whatever feels easiest. Ask “Why are others excited about BD?” Seek out the answers. Find just one thing about BD that sparks your curiosity.

Vulnerability Lawyers are reluctant to do things they’re not good at. (There’s that resilience issue again.) The idea of being bad at something for weeks or months; feeling awkward and slow; having to ask “I-don’t-understand…” questions; and needing step-by-step help and coaching over and over is scary. However, to progress, you’ll have to accept that beginner state. The ideal mindset for a beginner is both vulnerable and balanced: I’m going to be bad at this to start with, because I’ve never done it before. However, I know I can learn to do it over time. Acknowledging your novice status will make you feel less foolish and more relaxed.

The ability to acquire BD skills and knowledge quickly and continually is crucial to success in the modern law business. Try some of these self-talk techniques to help you overcome inertia and get started. n

Chihak & Martel MEDICAL MALPRACTICE | MAJOR PERSONAL INJURY | PRODUCTS LIABILITY | INSURANCE BAD FAITH

CYNTHIA CHIHAK AND AMY ROSE MARTEL

TRIAL LAWYERS, NOT SETTLEMENT LAWYERS Many personal injury lawyers who call themselves trial lawyers only settle their cases. At Chihak & Martel, our job is to obtain the best possible recovery, and nothing less. We are not afraid to try your case in court. Your recovery comes first.

Chihak & Martel celebrates its firm members being named to the San Diego Super Lawyers list, and to its principal Cynthia Chihak for being selected to the Top 25 Women Lawyers in San Diego for eleven consecutive years.

12555 High Bluff Drive, Suite 150 l San Diego, CA 92130 l (858) 481-7252 l www.chihaklaw.com

Five Ways to Know What’s Up with Clients And Staff

by Merrilyn Astin Tarlton

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he first Sunday New York Times Magazine after the 2017 presidential inauguration featured a cover story titled “To Obama With Love, and Hate, and Desperation” by Jeanne Marie Laskas. It is an excellent article and, regardless of your political leanings, I recommend it to you.

It tells the story of the 50 staff members, interns and many volunteers in the White House mailroom charged with reading every single letter and email delivered to the Office of Presidential Correspondence during Barack Obama’s time in office. Their goal? To each day select 10 letters to place at the back of that evening’s briefing book for the president — so he could “sample” the unfiltered story of the nation.

Every leader needs feedback. (Some need a little too much!)

But, truly, how can you do your job without understanding what’s going on in the lives of those impacted by your work?

In the case of a lawyer, I’m thinking, of course, of your clients.

But the lives, moods and opinions of your staff and colleagues count just as much.

“Big Data” Be Damned!

Sure, gathering oceans of information into a single succinct chart or graph can ease comprehension in the aggregate. But if the leader of the free world found it just as important to hear stories from the real lives of those around him, maybe you should, too.

So here are five ways to stay in touch with what’s going on with your clients, colleagues and staff. But, most of all, just make it your M.O.!

1. Ask. Inside your firm, start with a coffee meeting to explain a new resolve to stay more personally in touch this year.

Encourage people to talk with you personally if they have questions or problems—or send you a note or email if they feel shy. (Promise confidentiality if they wish, and deliver it, too!) For clients, finish every gig with a request for ongoing feedback. Be clear that you will make the time for their input—then make sure you do exactly that. Randomly select a few clients each month to share lunch with—and don’t make it about business development, it’s just staying in touch. Make sure that agenda is clear.

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2. Tell. Let the people around you know what is going on in your life—at home and at work. New client? Explain who it is and how and why they have engaged you. New baby? Share your photos and lack of sleep. Don’t be afraid to express it if you’re feeling tired or stressed; people like to know you are human, too. And when you need help, ask for it. Sometimes that is the most flattering thing you can do.

3. Organize. There are any number of ways to get official or institutional about the telling of stories and sharing of information. A suggestion box, perhaps? For clients, include a stamped, addressed blank postcard in the end-of-matter packet each one receives, asking for debriefing thoughts.

Institute a routine all-hands celebration at the successful close of a client matter. Someone’s birthday? Gather around the cake and ask for stories of birthdays gone by.

4. Share. If you receive a particularly interesting note (good or bad!) from a client, make sure you share it with all involved.

Yes, with your assistant as well as the senior partner. It’s a great way to learn how things look from the other side of the desk, to know how to handle a similar matter next time, and to identify systems or technology bugs that need sorting out.

5. Allow anonymity. It’s only fair, if you plan to share information or a story from someone, that you get their permission first or remove their name. It’s their story to tell. This is even especially true as it applies to sharing client stories or quotes on your website. n Merrilyn Astin Tarlton is the author of the new Attorney at Work book “Getting Clients: For Lawyers Starting Out or Starting Over.” She has been helping lawyers and law firms think differently about the business of practicing law since 1984. She is a founding member of the Legal Marketing Association, an LMA Hall of Fame inductee, and a past President of the College of Law Practice Management. Merrilyn was a founding partner of Attorney at Work. Follow her on Twitter @astintartlton.

Previously published in Attorney at Work.

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L AW Y E RS H E L P I N G OT H E RS

MATT HE W L I E D L E FIGHTING CANCER, PIECE BY PIECE

Matthew Liedle is a long-time board member for Hope For A Cure Foundation, a nonprofit that raises money to purchase and donate cancer research equipment. His countless hours of work have been instrumental in keeping HFAC moving forward in the fight against cancer.

Since 2004, HFAC has donated 17 pieces of equipment to cutting edge researchers at local cancer centers, including UCSD Moores Cancer Center, Salk Institute, Scripps Research Institute, and Sanford Burnham Prebys Institute.

Most recently, HFAC donated a sonic dismembrator to UCSD Moores Cancer Center. The device helps researchers discover genes that can be tested for mutations, in order to select treatment options for certain cancer patients.

Visit www.hopeforacurefoundation.org to donate or volunteer. You can also support HFAC by playing in the Society of Marketing Professional Services annual golf tournament on June 2, 2017.

Proceeds will benefit HFAC. Sign-up at www.smpssd.org.

An AV Rated partner with Liedle Larson Lidl & Vail, LLP, Matt’s practice includes construction, surety, general liability, product liability, professional malpractice, business disputes, and government matters Matthew Liedle is not affiliated with the Law Office of Steven C. Vosseller.

After each case, we donate a portion of attorney’s fees to a nonprofit chosen by the client.

P L A I N T I F F P E R S O N A L I N J U RY

858-429-4062 www.vosslawyer.com

L AW O F F I C E O F

STEVEN C. VOSSELLER

COMMUNITY news n Estey & Bomberger, LLP has announced that Stephen J. Estey has been tapped as the newest member of the National Crime Victim Bar Association (www.victimbar.org). An affiliate of the National Center for Victims of Crime, the association is the nation’s first professional group comprised of attorneys and expert witnesses dedicated to helping victims seek STEPHEN J. ESTEY and achieve justice through the civil system.

As part of the outreach services it provides to the community, the National Center for Victims of Crime hosts seminars throughout the country. These Civil Justice for Victims of Crime seminars help to increase an awareness of the civil actions that are available to victims, connecting National Crime Victim Bar Association members with victim service providers and advocates, prosecutors, law enforcement and other community resources.

In accepting this opportunity to further contribute to a cause to which he committed his career, Estey remarked, “I am excited to join this prestigious and collaborative group, to continue to be a part of the solution that helps those affected by crime transition from victims to survivors. n Effective January 1, 2017, Suzanne Varco and S. Wayne Rosenbaum have formed Varco & Rosenbaum Environmental Law Group LLP. The firm was formerly known as Opper & Varco LLP The Environmental Law Group. In addition to Varco & Rosenbaum, Linda Beresford SUZANNE VARCO & S. WAYNE ROSENBAUM will continue with the firm as a partner and Eric Grant has joined the firm as an associate. Richard Opper has left the practice.

“Over the 13 years since we first established our practice, environmental law and related areas have continued to be our focus. Our new name highlights our significant expertise in this ever-evolving area of law,” says Varco, who remains as managing partner of the firm. “We are proud that we will also continue to be a woman-owned firm.”

The firm provides services in a broad range of environmental law areas ranging from litigation and appeals to transaction, compliance, advice and advocacy. The firm will maintain its offices in downtown San Diego and will continue to serve clients throughout California.

n Wilson Turner Kosmo LLP is pleased to announce that it has elected three new partners—Robert K. Dixon, Daniel C. Gunning, and Marissa Lyftogt.

Dixon defends corporations in product liability, personal injury, consumer class action, ROBERT K. DIXON and other complex litigation in both state and federal courts, particularly with respect to claims under state and federal consumer protection laws. His practice also includes defending so-called “junk fax,” “blast text,” robocalls, and Do-NotCall class actions brought under the federal Telephone DANIEL C. GUNNING Consumer Protection Act. Gunning concentrates his practice on defending employers in discrimination, harassment and retaliation litigation and wage and hour class actions. Mr. Gunning has extensive experience in both state and federal courts, the Equal Employment MARISSA LYFTOGT Opportunity Commission, the Department of Fair Employment and Housing, and the Division of Labor Standards Enforcement. In addition to litigation, Mr. Gunning advises employers on ADA/FEHA accommodation and interactive process issues, leave rights, wage and hour and California Labor Code compliance.

Lyftogt represents employers in all aspects of employment law, including defending against claims of harassment, retaliation, discrimination, failure to accommodate, wrongful termination and wage and hour class actions. She also has experience litigating matters in state and federal courts, in arbitration and representing employers before state and federal administrative agencies.

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

Email it to PR@AttorneyJournal.us

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COMMUNITY news n CaseyGerry has announced the addition of Ethan Litney to its growing legal team. As the firm’s newest associate attorney, Litney will work closely with CaseyGerry’s complex litigation team with a focus on class actions, mass torts and complex pharmaceutical litigation.

Most recently an attorney with R. ETHAN LITNEY Rex Parris Law Firm in Lancaster, Calif., where he represented over 7,000 individuals affected by the Porter Ranch gas leak, the largest natural gas leak in U.S. history, Litney has focused his practice exclusively on complex litigation, including class actions and mass torts.

Litney is a member of the Consumer Attorneys of San Diego, the Consumer Attorneys of California, the San Diego County Bar Association and the American Bar Association.

He earned his J.D. from U.C. Davis, and holds bachelors’ degrees in both political science and philosophy from U.C. Santa Cruz. n Joseph Potocki and Karen Holmes of the law firm of Balestreri Potocki & Holmes have been selected to the 2017 San Diego Super Lawyers list in the field of construction litigation.

Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation JOSEPH POTOCKI experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas. His professional awards and honors include the Top 25 Attorneys in Construction and Real Estate Law, San Diego Daily Transcript, and Super Lawyers.

Holmes is a successful litigator and trial attorney specializing in professional liability defense and civil KAREN HOLMES litigation. She handles contract review and negotiation as well as the defense of construction delay, extras and defect claims on behalf of architects, engineers and contractors. Holmes has extensive trial experience and has served as Judge Pro Tem as well as arbitrator and mediator for the San Diego Superior Court. She is the recipient of many professional awards and honors including being named a San Diego Super Lawyer since 2007.

n Crosbie Gliner Schiffman Southard & Swanson LLP (CGS3) announced today the addition of three attorneys to its expanding commercial real estate practice: Michael Cato as partner and Jamie Altman Buggy and Collin Waring as associate attorneys.

CGS3’s newest partner, Cato is a San Diego real estate and finance MICHAEL CATO attorney who represents both local and national real estate developers, owners and investors. Previously a partner at Solomon Ward Seidenwurm & Smith LLP, he specializes in the buying, selling, leasing and financing of commercial properties in the office, industrial, retail and multi-family sectors.

Most recently with San Diego-based Procopio, Cory, Hargreaves & Savitch, JAMIE ALTMAN BUGGY LLP, Buggy represents business owners and individuals in all areas of real estate disputes, including breach of contract, fraud, insurance coverage, partnership disputes and breach of fiduciary duty.

Formerly an associate at Troutman Sanders in Del Mar, Waring adds longevity to CGS3’s established COLLIN WARING transactional team. His expertise includes the full range of commercial real estate transactions, and he advises clients on variety of operational and corporate agreements including licensing agreements, operating agreements, subscription agreements and private placement memorandums. n Paul E. Robinson, a senior partner at Hecht Solberg Robinson Goldberg & Bagley LLP, has been unanimously reappointed to the board of the San Diego Regional Airport Authority by the county Board of Supervisors. A member of the airport board since 2010, he serves as vice chair and Executive Committee PAUL E. ROBINSON member. Robinson is also chair of the Audit Committee and one of four board members appointed to the ad hoc search committee, charged with finding a replacement for the Airport Authority President/CEO Thelia F. Bowens.

Robinson, a lifelong civic leader and authority on land use and real estate law, currently serves as chair of the Mission Bay Park Committee, the Mission Bay Park Improvement Fund Oversight Committee, the De Anza Revitalization Plan ad hoc committee and the Downtown Parking Management Group.

Attorney Journal San Diego | Volume 163, 2017

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Bonnie Rabinovitch-Mantel CERTIFIED FAMILY SPECIALIST AND HER TEAM AT PRIMUS FAMILY LAW GROUP Bringing you zealous advocacy for what is right and reasonable through a big picture approach that carefully considers your future and the future of your children.

2635 Camino Del Rio South, Suite 204 San Diego, CA 92108 619.574.8000 PrimusFamilyLawGroup.com

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Out of the Shadows Into Survival

Gomez Trial Attorneys’ Newly Dedicated Brain Injury Division Shines as a Beacon of Hope, Help, Experience, and Expertise for Brain Injury Victims and Families

by Jennifer Hadley

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ccording to the CDC, more than 2.5 million people are diagnosed with traumatic brain injuries in the United States each year. More than 50,000 of them will lose their lives as the result of these devastating injuries. The remaining millions will be forced to live with the after-effects of a brain injury, effectively joining a growing population of brain injury survivors.

However, brain injuries continue to be overwhelmingly misdiagnosed, insufficiently treated, and altogether misunderstood even by most doctors. Consequently, countless brain injury victims in San Diego and beyond suffer horribly year after year, with few resources, little support, and a lack of support as they attempt to navigate their way through life, given their “new normal.”

“Brain injuries are unique in that they aren’t always outwardly apparent. If you meet someone on the street you may have no idea that they have a brain injury, but that does not mean that a victim isn’t suffering. Regardless of the severity of the injury, suffering a brain injury can be a life-altering event, not just for the survivor, but also for their families,” says John Gomez, founder and lead Trial Attorney at Gomez Trial Attorneys. “The aftermath of a brain injury can take an enormous toll both financially and emotionally on the victim and their entire family,” he adds.

“People who come to us after suffering a brain injury are coming to us because they can’t get the help they need anywhere else. They don’t know where to turn,” says Gomez. Indeed, after years of fighting for the rights of brain injury victims, Gomez recently decided that enough is enough, and decided to take formal, intentional action, within his firm.

The result is the creation of the Gomez Trial Attorneys 16

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Dedicated Brain Injury Division—an entire practice group dedicated exclusively to helping brain injury survivors to obtain treatment they need, the resources and support they deserve, and the opportunity to rebuild their lives after suffering a brain injury through no fault of their own. In addition to Gomez, Senior Trial Attorney Ben Coughlan, who has served on the Board of Directors of the San Diego Brain Injury Foundation for years, and Senior Trial Attorney Jessica Sizemore will helm the newly created division. They are supported in the new practice group areas by their Trial Attorney colleagues Kacie Wagner and Max Halpern.

“We are endeavoring to create an atmosphere for brain injury survivors that goes far beyond their case needs, and focuses on their life needs. While we can’t help everyone, we are uniquely situated to provide resources to our clients that no one else can,” Gomez explains.

Long History of Helping Brain Injury Victims GTA is uniquely qualified indeed, to provide these much-needed services, as the firm has a long history of representing clients in these overwhelmingly complex, expert-laden, labor-intensive and expensive lawsuits. Yet, even in the face of these obstacles, Gomez has never shied away from taking these cases to trial.

On the contrary, he’s been on the forefront of some of the most highly publicized brain injury cases in the nation.

For example, in Novak vs. Pizza Hut (2010), Gomez represented a mother and daughter who were severely injured after a Pizza Hut delivery driver crossed over into oncoming traffic

© Bauman Photographers

LAW FIRM

OF THE MONTH

2017 2014

Top Left to Right: Kacie Wagner, Max Halpern and Ben Coughlan

© Bauman Photographers

Left to Right: John Gomez, Jessica Sizemore and Max Halpern

and crashed into the women. Shari Novak suffered permanent brain damage, while her mother suffered a broken neck and other injuries. In this case, Gomez was able to prove that the driver, who had only had a license for three months, and had documented episodes of blacking out, should never have been hired as a delivery driver. In this case, the jury awarded Gomez’s clients a total of $10.8 Million.

Again, in Zaccaglin v. Starbucks (2011), Gomez recovered $7.5 Million for his client who suffered a brain injury after slipping on a wet floor at a Starbucks. “He was able to walk out, and attempted to return to work. He was initially diagnosed with a concussion,” Gomez recalls. However, the defense attorneys refused to believe that Zaccaglin was seriously injured. “They distrusted his story, and essentially called him a liar the entire time, even though he was suffering horrible emotional problems including mood swings, irritability, and was completely overwhelmed by any kind of stimuli. His executive functioning, including cognition and memory, was badly damaged.” Gomez prevailed in the case, despite the defense’s final settlement offer of $75,000.

More recently, Gomez was a public face of justice involving mass tort litigation against the NFL, following the suicide of Junior Seau. “A mass settlement has been reached, with all of those cases being resolved,” Gomez says. With these and numerous other successful brain injury recoveries secured for clients, Gomez says it was time for his firm to up its efforts in helping this underserved market of victims. He subsequently tapped Coughlan and Sizemore to lead the department in early 2017.

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“Ben brings unique experience to this practice area that few other lawyers have. His experience in advocating for survivors inside and outside of the courtroom makes him the ideal choice to lead us forward,” Gomez says. “In addition, Senior Trial Attorney Jessica Sizemore, who has developed and tried numerous TBI cases, will work closely with Ben to develop this practice area into an unmatched Brain Injury Department.”

“When John brought me the idea to develop a unique brain injury practice which focused on survivors’ legal, medical and emotional needs I was thrilled,” says Coughlan. “John understands that a brain injury is a disease process that affects each survivor in a different way. He understands that often survivors are just looking for support. I am certain we will help a lot of people moving forward.”

Together with Sizemore, Coughlan says the pair have been immersed in the scientific, medical and technological advancements being made to help victims of brain injuries for more than five years. “Jessica and I have been keeping a library of information for years, reading all new literature that comes out, attending all relevant conferences, and keeping on the forefront of this growing field, where even doctors still have so much to learn. If doctors or lawyers aren’t keeping up with the latest technologies, including sensitive imagining tests, they are doing a disservice to very seriously injured people,” Coughlan explains. However, GTA is certainly at the precipice of all emerging science, and technology. “We have been among the first in the state to get several different types of brain imaging techniques including PET Scans and Diffusion Tensor Imaging scans admitted into evidence at trial in mild traumatic brain injury cases,” Gomez confirms.

Focused on Building Relationships & Providing Resources

© Bauman Photographers

What’s important to note, however, is that the Brain Injury Division at GTA is not only focused on the litigation of brain injury cases. Instead, the group is dedicated first and foremost to ensuring the well-being, through necessary treatment for the survivor, while doing all they can to assist the family in recovering or adapting to the significant changes their loved one has undergone. To that end, the group is devoted to providing access to resources, serving as a liaison between victims and specialists, and championing the recovery efforts of the victim and family.

Sizemore explains, “We become very close with these clients.

Often the way that information is processed by those who have a traumatic brain injury is very different from that of a victim with a purely physical injury. You have to slow down, and take your time. Cognition is often compromised, and these clients need and deserve face to face time with their advocates. They are relying on us to be the intermediary in not only litigation, but in helping them to decipher what their doctors are saying. We are part of their advocacy team, alongside their doctors. These people need resources, and they need hope. The result is we form very, very close relationships with our brain injury survivors.”

Coughlan couldn’t agree more. “Our survivors often cannot express themselves. They are searching for their voice, and they are often very lost. They don’t know what is happening to them, and they don’t know where to go. They are lost in not just the

legal world, but in the medical world, because many times their doctors don’t know what is happening either. So, they are not getting to the specialists who can help, they wind up seeing staff doctors who are not up to date on the latest research and treatment, and they don’t get the treatment they need,” he says.

Continuing he adds, “Every TBI is different, but these are not invisible injuries. They are actually the most real injuries.

What other injury affects our very essence? These are injuries to a person’s entire identity. Some of them literally become different people. They are trying to navigate their way through the medical and the insurance systems, all the while dealing with frustration, mood changes, memory issues and cognitive problems.”

Fortunately, Gomez, Coughlan, and Sizemore do know exactly how to help these victims, where others can’t. Their immersion in the field has led to strong relationships with not only their clients, but with the medical specialists who focus on treating brain injured patients. In addition, their long history of working with brain injury victims has enabled them to connect brain injury survivor clients to individuals currently dealing with the devastating consequences of a brain injury. “This is really one of the neatest things we can provide to our clients,” says Coughlan.

“It is so important for victims to know that they can survive, so by connecting them with others who have been through it, we can provide even more support to clients dealing with this lifealtering event.”

Moreover, through the launch of GTA’s Brain Injury Division, Gomez, Sizemore and Coughlan are doing all that they can to promote public awareness of the seriousness of even seemingly minor brain injuries. “The defense will say that victims are

Attorney Journal San Diego | Volume 163, 2017

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© Bauman Photographers

suffering from anything other than a brain injury. They will say they are depressed, they will say our clients drink too much caffeine,” Gomez says. “That’s why these victims need attorneys who are specialists in this area. Generalists are not going to be able to overcome, and prove through the latest imaging techniques, through the neuropsychologists, through advanced MRIs that these victims have sustained serious injuries. A lot of these cases do wind up going to trial, and victims need their attorney to understand the latest science, and to put in the work with their families, to find out exactly how the injury has affected the victim. Most attorneys simply don’t have the expertise necessary to win these cases, and they don’t have the time to become the experts they need to, in order to win for their clients.”

In addition to the launch of the new Brain Injury Division, Sizemore and Coughlan have authored and published articles about the practice of brain injury representation for the local Trial Bar News. Likewise, Coughlan is a co-author and editor of the book Journey Toward Recovery: A Brain Injury Guide for Survivors, which was released by the San Diego Brain Injury Foundation.

More Survivors as True Measure of Success For Gomez, Coughlan and Sizemore, helping brain injury victims to transition into brain injury survivors is both their greatest driving force, and their greatest reward. The cases in and of themselves are often life-saving. “By virtue of the outcome of these cases, we can change lives for our victims, as the injuries will more often than not prevent them from 20

Attorney Journal San Diego | Volume 163, 2017

earning a living,” says Gomez. However, there is also an element of vindication that he says, helps change lives. “These victims have been called liars the whole time. When we can prove that they have never been liars, that instead they have been victims of a horrible injury, there is a huge psychological reward that our clients deserve and finally receive.”

Likewise, Coughlan says, “I don’t think you can be in the practice of injury law without a passion for fighting for people who are going through the worst time of their lives.

Particularly with brain injured victims, when we are dealing with people who don’t understand what is happening to them, the ability to be able to help those who are struggling so badly, feels incredible. I think the passion that drives us as personal injury attorneys is ramped up even more when we are able to help a brain injury victim to finally get the help that they need, and to have access to resources that will continue to help them as they recover.”

“There is no such thing as a mild brain injury. Any injury to our brain, which is our control system, is a serious injury.

So, we’re incredibly focused on supporting survivors, through changing the narrative about these types of injuries,” he says. n Contact Ben J. Coughlan ben@gomeztrialattorneys.com Jessica Sizemore jessica@gomeztrialattorneys.com Gomez Trial Attorneys 655 West Broadway, Suite 1700 San Diego, CA 92101 (619) 237-3490 gomeztrialattorneys.com

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Delegate, Don’t Abdicate, Client Trust Accounting

by Sheila M. Blackford

W

ell-meaning lawyers who struggle to balance their personal checking account may think the safest way to protect their client trust account is to find a knowledgeable bookkeeper or CPA to take charge of it. In practice, though, this can add up to an ethics violation for shirking responsibility to properly manage the trust account.

The problem arises when the lawyer doesn’t merely delegate responsibility but actually abdicates responsibility for the trust account. What is the difference? Let’s look at two lawyers in action and inaction.

Bringing in the Bookkeeper John has hired Karen, an experienced bookkeeper, to track all deposits to and withdrawals from his trust account using QuickBooks. Initially, John tracked each client’s trust account funds, but realized that doing it by hand was not efficient or error-free. His CPA recommended he hire a bookkeeper experienced in using QuickBooks to manage a law firm trust account. After interviewing a number of candidates, he hired Karen, who is very familiar with setting up individual subaccounts to properly track each individual’s trust account.

Karen clearly understands that money deposited on behalf of a client needs to be actually collected and in the trust account before writing any checks, or else the check will be drawing down funds belonging to a different client. Assured that the funds have been collected by John’s bank, Karen writes checks from three different client trust sub-accounts and presents the checks with the underlying invoices along with each client’s ledger card report showing all the transactions and current balances. John reviews the documentation for each expense and each respective client ledger card report. Finding everything in

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order, he signs the checks and initials the report at the line item.

Karen then goes over a three-way reconciliation of the overall trust account: After adding the balances of all of the client ledgers, she compares this total balance of all the client subaccounts with the total balance of the overall trust account.

The total balance of the overall trust account is determined by reviewing the trust account journal of transactions, which, like a checkbook register, provides a record of all deposits and withdrawals. Karen then reconciles the trust account monthly bank statement by adding outstanding deposits not yet credited to the account and subtracting outstanding deposits not yet cleared. The three balances must be the same: total of client ledgers, trust journal of transactions, and reconciled trust account bank statement. All three numbers equal each other so Karen and John are confident the client trust account is in order.

Although John has delegated the details of trust accounting in QuickBooks to his bookkeeper, he consistently reviews her work. He does not write a single check without verifying that the charge is accurate and that there is adequate trust account money held on behalf of the specific client for whom the check will be written. Otherwise, John could be using money belonging to another client to cover the expense.

Meanwhile, On Another Floor ...

Stacy is a solo practitioner like John, but she handles her trust accounting differently. Realizing that she has no aptitude for handling bank accounts, she has entrusted her law clerk, Jacob, with handling her bookkeeping.

Jacob is very smart but had never used QuickBooks or handled a trust account before being hired six months ago.

Jacob carefully follows the directions. He notates what each

trust account check is written for in the memo field, but he does not separately track each client trust sub-account.

Jacob has never done a three-way reconciliation but he looks at the bank statement and reviews the online account balance before paying any invoices from the trust account.

Stacy believes that as long as the trust account balance in QuickBooks is compared to the trust account bank account statement, that Jacob is doing everything right.

As long as the bank and her trust account are in balance, she is happy.

Last month, however, something went wrong and Jacob could not get the two numbers to equal. Stacy told him to just use the balance the bank showed. Accordingly, Jacob made a trust account reconciliation adjustment to correct a bookkeeping error.

Stacy is too busy practicing law to handle the billing and banking. Jacob thinks he is doing too much bookkeeping and not enough legal work.

A few days later, while opening the office mail, Jacob sees an envelope marked “personal and confidential” from the state bar. When Stacy finally opens it up, she sees that it is asking for trust accounting records for a client who has complained that she never provided an accounting of his money. She now must provide an accounting of the client’s trust funds along with bank statements covering the duration of the client matter. Stacy begins to panic when she realizes that Jacob only kept statements long enough to review their balances, and that there is no way to reconstruct any accounting of the client’s trust account money for the nine months she held his client funds.

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Sheila M. Blackford is an attorney and Practice Management Advisor for the Oregon State Bar Professional Liability Fund. She received her J.D. with Tax Law Concentration from McGeorge School of Law. She is the author of the ABA book “Trust Accounting in One Hour For Lawyers,” co-author of “Paperless in One Hour for Lawyers,” and a past Editor-in-Chief of the ABA’s Law Practice magazine. Sheila is a Fellow of the American Bar Foundation and member of the OSB eCourt Task Force and Public Service Advisory Committee. She writes the Just Oregon Lawyers Blog. Follow her @SheilaBlackford.

Previously published in Attorney at Work.

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McIntyre’s Civil Alert Organized Succinct Summaries

by Monty A. McIntyre, Esq.

Monty A. McIntyre has over 30 years of experience as a mediator and arbitrator. More than 35 years of experience as a civil trial lawyer representing both plaintiffs and defendants in business and commercial, bad faith, brain injury, construction, land use/CEQA, medical malpractice, personal injury, real property and wrongful death cases. To schedule a meeting with Monty A. McIntyre contact Kelsey Hannah at ADR Services, Inc. at 619-233-1323 or kelsey@adrservices.org

CALIFORNIA SUPREME COURT Civil Procedure (Motion for New Trial) Kabran v. Sharp Memorial Hospital (2017) _ Cal.5th _, 2017 WL 218033: The California Supreme Court affirmed the judgment of the Court of Appeal that upheld the trial court’s order granting a motion for new trial even though the plaintiff had failed to timely file the necessary filing fee for expert affidavits in support of the motion. Defendant did not object to the timeliness of the affidavits in the trial court. However, on appeal it argued for the first time that, under Erikson v. Weiner (1996) 48 Cal.App.4th 1663 (Erikson), because the affidavits were not timely filed, the trial court lacked jurisdiction to rely on them in hearing the new trial motion. The California Supreme Court ruled that the 30-day aggregate period for the submission of affidavits under Code of Civil Procedure section 659a is not jurisdictional, and disapproved Erikson to the extent it was inconsistent with the decision. Because defendant failed to assert the timeliness objection in the trial court, it could not raise this argument for the first time on appeal. The lack of timeliness did not deprive the trial court of jurisdiction to consider the affidavits. (January 19, 2017.)

Government Association of California Insurance Companies v. Jones (2017) _ Cal.5th _, 2017 WL 280822: The California Supreme Court reversed the decision of the Court of Appeal affirming the trial court’s order ruling that the California Insurance Commissioner had exceeded his authority in issuing a 2011 regulation covering replacement cost estimates for homeowners insurance (California Code of Regulations, title 10, section 2695.183). The California Supreme Court ruled that the statutory authority supported the Insurance Commissioner’s regulation. Because the regulation had been invalidated below solely under the Administrative Procedure Act and plaintiff’s remaining challenges to the regulation had not yet been considered, the matter was reversed and remanded for further proceedings consistent with the opinion. (January 23, 2017.)

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CALIFORNIA COURTS OF APPEAL Civil Code (Civil Code section 895) Acqua Vista Homeowners Association v. MWI, Inc. (2017) _ Cal. App.5th _, 2016 WL 371379: The Court of Appeal reversed a judgment for plaintiff against defendant in the sum of $23,955,796.28 following a jury trial. Plaintiff alleged, and the jury agreed, that defective cast iron pipe manufactured in China was used throughout the building. The claim was brought under Civil Code section 895 et seq. (“the Act”). The Court of Appeal ruled that the Act requires homeowners suing a material supplier under the Act to prove that the material supplier caused, in whole or in part, a violation of a particular standard as the result of a negligent act or omission or a breach of contract. The Court of Appeal held that the trial court had erred in denying defendant’s motions for directed verdict, and later motion for judgment notwithstanding the verdict, on the basis that plaintiff had failed to present any evidence that defendant had caused a violation of the Act’s standards as a result of defendant’s negligence or breach of contract. The matter was remanded to the trial court with directions to grant defendant’s motion for a directed verdict and to enter judgment in favor of defendant. (C.A. 4th, January 26, 2017.)

Civil Procedure Chen v. L.A. Truck Centers (2017) _ Cal.App.5th _, 2016 WL 192724: The Court of Appeal reversed a jury verdict and judgment for defendant because the trial court had declined to reconsider its earlier choice of law ruling to apply Indiana law after the only Indiana defendant settled with plaintiffs. Chinese citizen plaintiffs sued a California tour bus distributor for strict products liability for injuries and deaths suffered in a bus rollover accident in Arizona. The trial court initially applied Indiana law because the tour bus had been manufactured in Indiana by an Indiana manufacturer. This ruling, like an in limine ruling, was subject to reconsideration at any time before the submission of the case. The trial court erred in failing

to reconsider the choice of law question once the Indiana defendant settled. On the choice of law issue, the Court of Appeal held that California’s interest in imposing its rules of strict products liability in this case, in which a California dealership ordered an allegedly defective product, imported it into the state, and sold it to a California tour company for use on California roads, was strong. After the Indiana manufacturer defendant settled, Indiana’s interest in protecting its resident product manufacturers was no longer implicated by this case.

(C.A. 2nd, January 18, 2017.)

Stueve v. Buchalter Nemer (2017) _ Cal.App.5th _, 2017 WL 192727: The Court of Appeal reversed the trail court’s order granting a motion to dismiss under Code of Civil Procedure section 583.310 et seq. for failure to bring the action to trial within five years of the filing of the complaint. “In an action tried to a jury, the action is brought to trial when the jury is impaneled and sworn.” (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 723.) Three days before the five-year statute expired, a panel of 75 potential jurors was assembled and sworn. Seven days later, while voir dire was still in progress, defendants moved to dismiss under the five-year dismissal statute, and the trial court granted the motion, finding that the jury had not yet been impaneled and sworn. The Court of Appeal reversed, ruling that the jury was “impaneled” when the panel of prospective jurors assembled in the courtroom for voir dire, and the panel was “sworn” when the prospective jurors took an oath to respond truthfully, so the action was timely brought to trial. (C.A. 4th, January 18, 2017.)

have provided for a pro rata cost allocation but chose to omit reference to any specific formula or methodology and instead set forth a number of factors that must be considered in setting a wheeling rate. In light of the statutory language, rates must be set on a case-by-case basis, and in this case, defendant failed to consider all of the appropriate factors, including incremental costs and the value of offsetting benefits from the wheeling.

The rates set ran counter to an analysis of competitive pricing and violated the statutes’ directive that such rates be reasonable.

(C.A. 3rd, filed December 27, 2016, published January 25, 2017.)

Torts Leyva v. Crockett & Co. (2017) _ Cal.App.5th _, 2017 WL 192980: The Court of Appeal affirmed the trial court’s order granting summary judgment for defendant golf course owner/ operator under the trail immunity in Government Code section 831.4. Plaintiffs sued after a golf ball struck plaintiff Miguel Leyva in the eye while he and his wife walked along a public path adjacent to the Bonita Golf Club. The Court of Appeal ruled that trail immunity extends to a trail’s design and location. (C.A. 4th, filed January 18, 2017, published January 25, 2017.) n

Education San Jose Unified School District v. Santa Clara County Office of Education (2017) _ Cal.App.5th _, 2017 WL 345136: The Court of Appeal affirmed the trial court’s judgment granting a writ petition and issuing a peremptory writ of mandate directing the Santa Clara County Board of Education to rescind its resolution, approved under the alleged authority of Government Code section 53094, exempting from local zoning ordinances property to be used by Rocketship Education for a charter school. The Court of Appeal ruled that section 53094 does not authorize county boards of education to issue zoning exemptions for charter schools. (C.A. 6th, January 24, 2017.)

Government Central San Joaquin Water v. Stockton East Water District (2017) _ Cal.App.5th _, 2017 WL 7438688: The Court of Appeal affirmed the trial court’s judgment that defendant’s 2010 and 2011 wheeling rates (water transportation charges) could not be upheld under the Wheeling Statutes (Water Code, section 1810 et seq.). The trial court correctly ruled that the Wheeling Statutes must be read as a whole and the language read in light of the purposes and policies of the statutes to facilitate the voluntary exchange of water, noting that the Legislature could Attorney Journal San Diego | Volume 163, 2017

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Seven Disciplines Of a Leader

by Jeff Wolf

A

ll the competitive advantages—strategy, technology, finance, marketing—that we’ve pursued in the past are gone. The disciplines haven’t disappeared, but they have lost their power as meaningful competitive advantages, as real differentiators that can set your company apart. Why? Virtually every organization has access to the best thinking and practices on those topics. As information has become ubiquitous, it’s almost impossible to sustain an advantage based on intellectual ideas.

However, one simple, reliable, and virtually free competitive advantage remains—team health. Healthy teams all but eliminate politics and confusion from their cultures. Thus, productivity and morale soar, and good people almost never leave. For those leaders who are a bit skeptical, rest assured that none of this is touchy-feely or soft. It is as tangible and practical as anything else … and even more important.

Even the smartest team will eventually fail if it is unhealthy.

But a healthy team will find a way to succeed. Without politics and confusion, it will become smarter and tap into all of the intelligence and talent it has.

Team health requires real work and discipline, maintained over time, and the courage to objectively confront problems hindering true team achievement. Leaders must confront themselves, their peers, and the dysfunction within their teams with honesty and persistence. Persistent leaders walk into uncomfortable situations and address issues that prevent them from realizing the potential that eludes them.

Four Disciplines To get healthy, leaders need to take four simple, but difficult, steps:

1. Build a cohesive leadership team. Get the leaders of the organization to behave in a functional, cohesive way. If the people responsible for running a team, department, or organization are behaving in dysfunctional ways, then that dysfunction will cascade down and prevent organizational health. And yes, there are concrete steps a leadership team can take to prevent this.

2. Create clarity. Ensure that the members of that leadership team are intellectually aligned around simple but critical questions. Leaders need to be clear on topics such as why

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the organization exists and what the most important priority is for the next few months, and eliminate any gaps between them. Then people who work one, two, or three levels below have clarity about what they should do to make the organization successful.

3. Overcommunicate clarity. After the first two steps (behavioral and intellectual alignment), leaders can take the third step: over-communicating. Leaders of healthy organizations constantly repeat themselves and reinforce what is true and important. They err on the side of saying too much, rather than too little.

4. Reinforce clarity. Leaders use simple human systems to reinforce clarity in answering critical questions. They custom design any process that involves people from hiring and firing to performance management and decision-making to support and emphasize the uniqueness of the organization.

Healthy teams get better at meetings. Without making a few simple changes to the way meetings happen, a team will struggle to maintain its health. Healthy teams rarely fail. When politics, ambiguity, dysfunction, and confusion are reduced to a minimum, people are empowered to design products, serve customers, solve problems, and help one another. Healthy teams recover from setbacks, attract the best people, and create exciting opportunities. People are happier, the bottom line is stronger, and executives are at peace when they know they’ve fulfilled their most important responsibility: creating a culture of success.

Applying the principles of great performance is hard, but the effects of deliberate practice are cumulative. The more of a head start you get in developing people, the more difficult it will be for competitors to catch you. n Jeff Wolf is the author of Seven Disciplines of a Leader and founder and president of Wolf Management Consultants, LLC, a premier global consulting firm that specializes in helping people, teams and organizations achieve maximum effectiveness. A dynamic speaker and highly requested executive coach, he was named one of the country’s top 100 thought leaders by the prestigious Leadership Excellence Magazine. For more insights from Jeff Wolf, check out his book, Seven Disciplines of a Leader.

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