Attorney Journals, San Diego, Volume 189

SAN DIEGO

Volume 189, 2019 | $6.95

Adapting to Survive

Roger Hayse

Silence Your Inner Critic, Step Outside of Your Comfort Zone, and Achieve Greater Success

The Three Cons: High-Pressure Selling vs. Dignified Marketing

Trey Ryder

Stefanie Marrone

California Case Summaries: Freetm

A Simple Exercise to Rethink and Refocus Exceptional Client Service

Monty A. McIntyre, Esq.

Kevin McMurdo

Law Firm of the Month

Dunn DeSantis Walt & Kendrick, San Diego Business Lawyers for Business People 8 Key Takeaways from #LMA19

Rich Bracken

Five Ways to Normalize Your Damages

Dr. Ken Broda-Bahm

Network Now for Success Later

Nathan Peart

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

• $1.1 million arbitration award for firm clients on cross-complaint after zeroing plaintiff on $6 million damage claim in Step Strategy Advisors v. Solid Gold Health Products for Pets, Inc., et al. (2018)(Jason Kirby lead counsel).

• Michael Kirby received the 2019 Best Lawyers in America® distinction for (1) Bet-the-Company Litigation, (2) Commercial Litigation, (3) Litigation – Real Estate, and (4) Litigation – Securities.

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

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2019 EDITION—NO.189

TABLE OF CONTENTS 6 Network Now for Success Later

by Nathan Peart

8 Adapting to Survive

by Roger Hayse

10 How to Silence Your Inner Critic, Step Outside of Your Comfort Zone, and Achieve Greater Success

by Stefanie Marrone

12 Five Ways to Normalize Your Damages

EXECUTIVE PUBLISHER Brian Topor

by Dr. Ken Broda-Bahm

EDITOR Wendy Price

14 High-Pressure Selling vs.

Dignified Marketing

CREATIVE SERVICES Penn Creative

by Trey Ryder

CIRCULATION Angela Watson

LAW FIRM OF THE MONTH

PHOTOGRAPHY Chris Griffiths STAFF WRITERS Dan Baldwin CONTRIBUTING EDITORIALISTS Rich Bracken Dr. Ken Broda-Bahm Roger Hayse Trey Ryder Nathan Peart Stefanie Marrone Monty A. McIntyre, Esq. Kevin McMurdo 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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16 Dunn DeSantis Walt & Kendrick, San Diego Business Lawyers for Business People

by Dan Baldwin

24 Eight Key Law Firm Strategy Takeaways

by Rich Bracken

26 California Case Summaries: Freetm

by Monty A. McIntyre, Esq.

28 A Simple Exercise to Rethink and Refocus Exceptional Client Service

by Kevin McMurdo

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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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Network Now for Success Later T

oday, the art of conversation has changed with the use of technology and our ability to text, instant message, or upload a story to Instagram. The idea of going to an event that requires some level of face-to-face networking is daunting—and a bit of a foreign concept to those of us who interact through our phones more than in person (i.e., us Millennials). It’s truly awkward and uncomfortable to walk up to a stranger and say hi, but to engage in a full conversation with someone more senior than you is scary and pushes us way outside our comfort zone.

Young associates, however, need to embrace the act of networking because the connections you make are the ones that will help you in your career in the long run. While you may feel like you have nothing to add to a conversation so early in your career, consider that the people you are meeting were once where you are now and have a plethora of knowledge they are more than willing to share with you. These new connections you will make are likely to become your mentors and sponsors, future clients or coworkers, and potential collaborators for writing and speaking engagements.

Make New Friends To start networking, begin with baby steps and work within your comfort zone: • Look within your firm first. Chances are there are partners you don’t regularly interact with or members of other teams that you only smile at in passing. Attend firm functions where you have the opportunity to mingle with people outside of your team and immediate office. Because you work at the same firm, you will have common ground to talk about, which will make starting a conversation easier and ease you into the practice of networking.

• Attend client events. Showing up to events hosted by your clients is a smart business decision. The more you interact with your clients, the more they get to know you and trust you, which will ideally lead to continued work in the future. Take the time to introduce yourself to the other employees and the other guests your client has invited. You are again starting with a bit of common ground that you can talk about since “how long have you worked with XYZ” can be a good icebreaker. If showing up alone to a client event feels too risky, take a buddy with you so you can work the room together.

• Go back to law school for alumni events. Having gone to the same law school or even university for your undergraduate degree is always an easy topic of conversation. You can reminisce about past experiences from your time at that institution. You have shared an experience and that connection will make people more willing to help down the line—as long as you nurture that new contact.

The next step is to branch out and join associations and diversity groups. You don’t have to be in a specific diverse category to go to a diversity event, allies are often welcomed, too. Yes, it will be scary but you just have to go. It’s an interesting way to 6

Attorney Journals San Diego | Volume 189, 2019

by Nathan Peart

meet people, and people will want to talk to you because they are curious about your interest in the group or cause and your (possible) connection to that.

How to Navigate a Networking Event Go into any networking situation with a rough game plan. There is no need to stay the entire time, but plan on staying at least an hour and talking to a set number of people—set yourself a goal. What do you want to get out of this event? Prepare your elevator pitch and have a few questions ready to ask that will start a conversation, whether about work or personal interests, so that you feel fully prepared. Follow these pointers when you arrive: • Arrive 10–15 minutes after registration time, not too early so people will be there already and you aren’t awkwardly standing around waiting.

• Drop your bag, coat, etc., if possible, so that your hands are free and you can greet people appropriately when you meet them.

• Keep some business cards with you at all times to hand out.

• Dive in. Grab a drink and find somebody else who is on their own and approach them. There will always be people (who are probably as nervous as you) interested in starting a conversation.

You have your questions ready, so just ask them! Remember you are all there for the same reason.

After the event, connect with the people you met on LinkedIn and start building a rapport with them. Send them a small note and initiate next steps with them, whether that’s simply staying in touch or engaging them on a project you want to work with them on in the future.

An Eye Toward the Future At any stage of your career, you never know the direction your career path will take you, so building your connections will be paramount to your success. Having an internal champion in your firm will help you make internal moves into that sexy practice you are dying to join or act as your advocate when partnership comes up. If you decide to go in-house, often your first move will be at mid-level and through people you know or lawyers you have worked with on the other side.

Or in the event you choose to leave law practice to explore teaching, banking, consulting, or recruiting, a network of people who know you and your work product will be helpful for you in making these types of moves and industry introductions.

Business is all about interacting with people no matter the business you are in. Push out of your comfort zone and start getting to know others in and out of the industry. The benefits will be endless. n Nathan Peart is a Managing Director at Major, Lindsey & Africa in the Associate Practice Group based in New York. An expert in cross-border relocation, Nathan works closely with associates to help them make lateral moves into law firms whether in New York City, on the East Coast or internationally.

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

Adapting to Survive

by Roger Hayse

Charles Darwin said so profoundly, “It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is the most adaptable to change.”

O

ur practice is seeing an increasing number of firms tested by their ability to adapt. The news reflects a growing number of firms in obvious transition. From high-profile names to lesser-known partnerships, the leaders of each firm face pivotal decisions. Some of these firms will restructure or otherwise embark on a turnaround strategy. Others opt for merging with another group or offering themselves as an acquisition target in an effort to avoid dissolution. History has shown far too many ends in a messy liquidation.

Identifying the Path that Leads to Decline The decline of a once vibrant partnership rarely has much to do with the quality of lawyers engaged in the practice. And though the marketplace is certainly tumultuous, what is at the heart of survival and success for some, and the dire straits of a struggle to survive for others?

In his book Corporate Turnaround, Dan Bibeault identifies four key mistakes that lead to organizational decline. These mistakes, paraphrased to the legal profession are: • Failure to respond effectively to a changing competitive environment • Poor control over operations • Overexpansion • Operating with excessive financial leverage Let’s look at each one a bit more closely.

Failure to Respond to Change Effectively Every leader knows that the only constant in business is change.

And no one need tell the leader of a law firm that our industry is changing at breakneck speed. Specifics of the changes virtually every firm leader must contend with include: • Increasing mobility and declining loyalty of attorneys

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Attorney Journals San Diego | Volume 189, 2019

• Client imposed pressure on pricing • Non-traditional competitors and alternative service providers • Technology’s role in driving certain lines of service to commodity status • Consolidation Counsel/Advice—Effective law firm leadership establishes a formal mechanism through which change is routinely addressed.

These mechanisms identify emerging changes to the business of law, and collaboratively craft appropriate responses.

Control Over Operations Operational challenges are varied and abound. If the leaders of a firm are continually surprised to find threats to profitability and stability, the firm is well on its way to a potentially painful transition process. On the other hand, keeping an eye out for these early warning signs can result in averting crisis: • Loss of a significant client relationship resulting from continued service delivery issues, or the departure of a key partner • Firm-threatening malpractice claims resulting from failure to engage in client problem management • Shortage of working capital resulting from continuing cash flow deficits.

• Excess capacity in terms of space and people resulting from failure to manage attrition of clients and or lawyers Counsel/Advice—Leadership must establish control mechanisms that spot these (and any evolving) early warning signs. These mechanisms may include: • Operating and capital budgets • Client feedback systems • Attorney and non-attorney review systems such as 360 reviews that register building frustration

Over-Expansion Imprudent growth may be the number one mistake law firm leaders make. There is a tremendous bias for numerical growth in our industry. Unfortunately, the growth in which we engage is often far from strategic, and about little more than becoming bigger. As a result, most lateral expansion is not—in the long run—beneficial to the partners of the expanding firm. Most growth changes the numbers but adds little value. Growth is expensive, tests culture, strains the limits of the management and leadership infrastructure and is just plain risky.

too far, organizational failure. Edwin Reese has an excellent article here on law firm capital.

Counsel/Advice—Better to be safe than sorry. We recommend that firms maintain a balance of contributed capital that is equal to 25-45% of annual owner compensation and that monthly distributions to owners be based on a distribution of 60-70% of projected annual income with the balance distributed at year-end.

Follow Basic Guidelines and Avoid Crisis

Excessive Leverage

Serious law firm decline can almost always be avoided if leadership understands the trajectory of its current path. To improve your firm’s odds of avoiding deterioration, monitor and proactively address change, tightly control legal and administrative operations, expand cautiously and maintain a healthy level of financial leverage.

In a statement often associated with leadership and innovation, Wayne Gretsky said, “I skate to where the puck is going to be, not to where it has been.”

What might law firm leaders be doing today, to better predict where firms end up in the coming months and years? n

The general inclination in most law firms is to maximize immediate cash flow to owners while minimizing the amount of owner cash tied up in contributed capital. The combination of these two often leads to operational stress, and—if extended

Roger Hayse has spent more than 30 years closely advising law firm management and legal industry service providers. His career is highlighted by consistently providing the counsel and leadership critical to successful law firm transitions. Learn more at HayseLLC.com.

Counsel/Advice—Add institutional capacity only when existing capacity has been significantly and consistently utilized.

Until that threshold has been achieved, learn to use contract, temporary and outsourced solutions.

Restrict lateral growth to individuals or groups that meet strategic criteria and have been documented to be accretive through objective analysis. Increasingly, business that is thought to be “portable” is actually far from it. Vet relationships. Add laterals in a manner consistent with strategic direction of the firm.

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Attorney Journals San Diego | Volume 189, 2019

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How to Silence Your Inner Critic, Step Outside of Your Comfort Zone, and Achieve Greater Success

by Stefanie Marrone

“Yes, you can … ” Many professionals want to step outside of their comfort zones and try different types of branding activities such as public speaking, article writing, taking a leadership role on a committee, joining a nonprofit board, or starting a blog, but something inside holds them back from doing so.

Here’s what I say to those feelings of self-doubt and negativity (and what you should say too), “Yes, you can, and you will!”

It’s not easy to tame our inner critic, but nothing in life that’s worth it ever is easy, right?

We all have tons of self-doubts in our head that wreak havoc on our self-confidence. It’s so important to believe in yourself; in fact, your career depends on it. A positive mindset goes a long way in determining whether your endeavors fail or succeed. Harsh self-reflections can be very damaging to your psyche and your career. To succeed, you must consciously silence these negative thoughts, replace them with proactive thoughts and actions and generally just be kinder to yourself.

I used to be in this category of people who just didn’t believe in themselves and who were overly critical of themselves—let’s just say that I was not the most charismatic public speaker (in fact, I was terrible!) and I beat myself up over it watching videos of myself, critiquing my performance and asking others for feedback where I obsessed over the negative comments. But I kept at it, I strove to improve what I could, I didn’t give up and I didn’t say no to future speaking engagements just because I had a few so-so experiences. And neither should you.

So, what if your speaking engagement is only good, not great, or if your article just receives a lukewarm reception?

You’ll learn from each of these and do better next time. After all, practice really does make perfect.

If you work hard for the things you want, they will happen.

The next time you hear that negative voice in your head, I want you to promise to do the following:

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1. Stop overthinking and driving yourself (and likely others around you) crazy You aren’t perfect, but guess what, no one is! And that’s ok. If you can take constructive feedback, admit when you fail or are wrong, and learn from your mistakes, you’re in good shape.

2. Silence your inner negative voice by being your own best friend Every time you hear that voice that says “you can’t do this” or “you are a major screw up,” instead talk to yourself as you would a good friend. You’d likely reframe that same sentence to your friend as, “If you put hard work into this, you can do it” or, “Okay, so you made a mistake, but it will be okay.”

It’s amazing how mean we can be to ourselves, and how easy it is to talk ourselves down from a very negative place.

3. Remind yourself that you can handle the toughest of situations Is the worst situation that could arise from putting yourself out there really something that could actually happen? Probably not. So, envision it and then move on. What you will often realize is that you are stronger than you think, and your anxiety has no basis in reality.

4. Accept that not everyone is going to like you or think that you know your stuff and that’s okay I recently learned a hard lesson—not everyone is going to like you, and it’s okay.

There are a lot of people out there who will just not get you or who will not think you know your stuff, and that’s also okay. Different strokes for different folks, or so they say. The important lesson here is to never feel like you have to keep a low profile just because you’re afraid of what some mean girls

(or guys) may say about you. Oftentimes they are too chicken to have a public voice like you do and that’s why they are being mean—because you being in the public eye makes them feel bad about themselves that they wish they could do. It is good old-fashioned jealousy rearing its ugly head.

My mentor and good friend Wendy once told me that we only have control over our own actions, so take the high road, do good things for people and pay no mind to those who don’t like you. Another wise industry friend, Tim, told me that if you have people who say negative things about you for no reason, it means you made it in the industry, which is a very positive way of thinking about things!

My point here is to never let the fear of others squash your drive and excitement to write, speak and to be yourself— there’s more than enough room for all of us in the professional world. Ignore your haters.

5. Believe that you can do it A funny thing happened when I started believing that I could speak publicly and become a published author … I started to public speak and become a published author. Go figure! Here’s the thing—if you believe in yourself, you often will be able to find the confidence to achieve what you want.

6. Change what you can but accept yourself for you Recognize those areas in which you can genuinely improve and enhance your skills and do something about them. But

sometimes no matter how much we try to improve ourselves there are just certain things that we can’t change. Some of us are self-enlightened enough to know what those things are, and others of us must learn about them the hard way. Either way, you can only twist yourself into a pretzel and change so much. So consciously make the positive enhancements about yourself that you can—and then learn to live with the imperfectly perfect you. Again reference #1 on this list—no one is perfect. I repeat no one, so don’t feel too badly about the fact that you strive toward perfection is not perfect.

Each of us is a work in progress with valuable attributes and skills, and that’s what makes us so complicated, unique and interesting. Sure, we all have areas of improvement and we all wish that we had talents in certain areas that we don’t, but I know if you’re like me, you’re trying every day to be a better version of yourself and that counts for a lot. So, keep up the good work—and don’t forget to be yourself! n Stefanie Marrone helps law firms effectively tell their stories and find their unique voices. Over the last 17 years, she has worked with some of the most prominent and innovative law firms in the world, developing and executing global revenue generating business development and communications strategies, including media relations, branding, and multi-channel content marketing and social media campaigns.

She is very passionate about using social media for lead generation and brand building. She has a diverse range of experience in both Big Law and mid-size/small-law firms. To Learn more, please visit www.TarterKrinsky.com.

Attorney Journals San Diego | Volume 189, 2019

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Five Ways to Normalize Your Damages

by Dr. Ken Broda-Bahm

W

hen civil litigation is being discussed by those outside the courtroom and outside the legal field, what stands out is often the perception, at least, of very high damages. The high-dollar figure being awarded, based on a questionable claim, is the poster child for the abuses of litigation. But for some reason, inside the courtroom and specifically inside the jury room, juries are often able to get to those high numbers—numbers that some of those same individuals would have scoffed at had they heard about it in the news instead of having been part of it in the deliberation room. Part of that, of course, is because as jurors they have heard the evidence. But part of it is also that, over the course of the trial, the high numbers have started to seem less shocking and more normal. Both plaintiffs and defendants care about this numbers effect, with plaintiffs wanting to place the figure as high as possible, and defendants—often, but not always—wanting to offer and to normalize a counter number of their own.

In our own experience running mock trials, we don’t often get the chance to see mock jurors really dig into the details

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Attorney Journals San Diego | Volume 189, 2019

of the damages case. Generally, they will spend minutes and not hours or days talking about the damage figures. But within those minutes, I do think we often get to see the most important parts of damages deliberation: The parts where jurors develop an orientation, talk about an approach, and decide if they want the numbers to be high or low. A lot goes into how a jury will view the numbers offered by both parties, and how they determine what is typical, what is credible, and what is valid. In this post, I am going to share the top five factors gleaned from practical experience for making damages numbers acceptable and normal to a jury.

One: Make It a Number I have talked with attorneys on both sides who are afraid to offer a number on damages. For one category, or even for the case as a whole, they will want to leave it as a blank that the jury fills in based on an open-ended, “Give what you think is fair” message. For plaintiffs, the fear is, “What if they would have given more and my number lowers it?” And for defendants,

the fear is, “What if they would have given less, or what if mentioning the number makes me look guilty?” It isn’t always an easy call in the context of a given case. But in the context of the social science research, there is a clear answer: Giving a number that jurors can “anchor” on helps. A high anchor from a plaintiff helps push damages higher than they would have otherwise been, and a low anchor from a defendant does the opposite. It is a delicate matter to decide on a number, but if you do your homework and offer one, you will have more influence on the final result. And what advocate doesn’t want more influence?

Two: Address the ‘Gist’ More recent research on damages shows that jurors don’t decide on a number in a single step or just calculate their way to a final damages number. Instead, they will first decide on what the ‘gist’ of damages should be, and then they work their way to a number that fits that gist. By ‘gist,’ I mean the subjective sense that the number ought to be “Low,” or “Average,” or “High,” or “Stop the presses and send a message high.” Before they get into specific numbers, individuals and groups will want to ground their decision in one of those subjective categories, and often the arguments during deliberations are not about numbers but about which of those categories is the right one in this particular case. So when it comes to plaintiff’s requested damages or defense’s counter, don’t just talk about the numbers, talk about whether this is a case that jurors might think of as typical, or as a case that has some special circumstances that should push damages in a higher or lower direction.

Three: Talk About It Early When the plaintiff is offering an amount, it is nearly inevitable that there will be some initial “sticker shock” over the amount. They will compare it to what they earn in a year, or to what they are paying for their house, and for most cases in most venues, that comparison is not going to help a plaintiff. However, the more jurors hear the number, the more they start to become desensitized to it. It starts to sound normal. So as early as possible in the trial, start mentioning the number. That often means during voir dire.

Plaintiffs might be able to strike people who would have trouble with that number. But even without that, it is a good idea to get them used to the numbers. For defendants, it is a trickier matter to decide when to bring up a counter number. In some cases, you want to build that solid “no liability” case first so it is very clear that the damages number is an “even if … ” argument. But if your strategy centers on reducing damages, it will make sense to start normalizing those low anchors as early as possible as well.

Four: Contrast It With the Extremes Jurors want to compromise. They don’t want to listen to one side and say, “Okay, I agree,” and implement that preferred verdict. Instead, they want to reach their own decision, and that means adjusting based on the anchors that the parties have given. Offering a contrast to your own numbers can serve as one check on that adjustment. That is, if you can give the message that the compromising has already been done, then that can limit the adjustments that jurors are motivated to make. For a plaintiff, that means that it is often a good idea to focus on some categories and some amounts that you are not asking for. A damages expert might say, for example, that it would be reasonable to budget for full-time life care starting now, but that the injured plaintiff doesn’t feel she needs it right now. In contrast to the higher figure, the amount you are asking for now doesn’t feel as high.

Defendants can do the same in the opposite direction. The defense expert, for example, could say that it is uncertain whether a second surgery is needed or not—if we excluded it, here is what our amount would be—but we are including it just to make sure we are being fair. Now, in contrast to the lower figure, the defense’s amount seems more generous.

Five: Show Your Work How did you arrive at a number? What does the number mean? How would a jury unpack it to decide whether it is reasonable or not? How you got to the number matters as much as the number itself. To the jury, it matters more.

So, use an expert who is able to explain the process in an understandable and engaging way. The message isn’t, “Trust me, I’m an expert,” it is, “Let me show you how to arrive at a good number … ” Ideally, the damages expert is telling a story and helping jurors solve the mystery of how one puts a reasonable value on this case. Ultimately, they may not end up with your preferred number, but if you have influenced the road they take to arrive at a number, you have influenced a lot. n Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 21 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

Attorney Journals San Diego | Volume 189, 2019

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High-Pressure Selling vs. Dignified Marketing Depends on How You Use the Three Cons

by Trey Ryder

L

awyers often ask me to explain how selling-based marketing differs from Education-Based Marketing.

I point out the standard differences about giving prospects what they want, information and advice—and removing what they don’t want, a sales pitch.

But the fine points of Education-Based Marketing go much deeper.

You and I, as consumers, want people to respect the fact that we have a brain—and that we can make our own decisions without someone else (the salesperson) telling us what to do.

This important point clearly defines how the respected authority (you) differs from the pushy salesperson (everyone else).

The difference is in the three cons: Convince. Control.

Conclude. The salesperson tries to “convince” you that you need what he’s selling and take “control” of your decision.

(We refer to this as sales pressure.) On the other hand, the authority offers facts and advice that allow you to “conclude” that you need what he offers—and you need it right now. He never tries to control your decision.

Here are two typical examples:

Example #1 Salesperson: “This service will save you time and money.

Sign here and I’ll finish the paperwork in two minutes.” (He tells you what will happen and tells you what to do.)

Authority: “From the facts I have provided, I think you’ll agree that you’ll save considerable time and money by choosing option A over option B.” (The authority respects the person’s ability to listen to the information, draw his own conclusions, and make his own decision.)

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Example #2 Salesperson: “You must sign up for this service now.

Otherwise, I can’t be held responsible.”

Authority: “From the case history I’ve just presented, I hope you see how important it is that you act now, without delay.”

My Advice: When you talk with prospects, make sure you provide facts, case histories, information and advice that allow prospects to conclude they need what you offer—and soon.

The moment you turn the tables and tell them what they need, they see you as a salesperson. This undermines your credibility and they lose all respect for you.

In summary …

Selling-based marketing creates these problems: 1. Prospects go out of their way to avoid you because they are tired of selling and sales pressure. They don’t like to be approached by salespeople who have something to sell. Prospects don’t think they can trust you because all of us have been burned by salespeople who gave us “inaccurate” and even false information in their eagerness to earn a commission.

2. Prospects are defensive and protective because they expect you to try to pressure them into buying something they don’t want or need.

Education-Based Marketing provides these solutions: 1. You give prospective clients what they want, information and advice—and you remove what they don’t want, a sales pitch.

2. You maintain your dignity because you never make any effort to sell.

3. You establish yourself as an authority because prospective clients see you as a reliable source of information.

4. You don’t seek out prospects; instead, they contact you.

5. You reach prospects during the first stage of the decisionmaking process, often before they call your competitors.

6. You identify even marginal prospects who are not yet ready to speak with you, but who won’t hesitate to ask for your free information.

7. You prove that calling your office is nothing to be afraid of.

In fact, it’s a positive experience.

8. You save money because you don’t need expensive brochures.

9. You receive calls from qualified prospects who are genuinely interested in your services and you screen out people who are not your prospects.

10. You establish your credibility and make a positive first impression by offering helpful information and advice rather than a sales pitch.

11. You save time by answering common questions in your marketing materials, ads and seminars, rather than answering the same questions over and over in person.

12. You begin to earn your prospect’s loyalty because you’ve made an effort to help him, even if he doesn’t hire your services.

13. You know precisely how well your marketing works because you can count the number of prospects who respond—and the number who go on to become clients.

14. You gain a competitive advantage simply by using this innovative method because few, if any, of your competitors use it.

15. You benefit from the synergy of several educational methods reinforcing each other.

16. You earn a true profit, rather than just creating more work and more overhead.

Now you understand why the American Marketing Association featured this innovative approach on the front page of its national publication, Marketing News.

Now you’re invited to profit from this unique method. n Trey Ryder shares his marketing method with lawyers through a wide range of publications. In addition, he writes and publishes his free e-zine, The Ryder Method™ of Education-Based Marketing. And he maintains the Lawyer Marketing Advisor at www.treyryder.com. He can be reached at: trey@treyryder.com

DEFENDING THOSE WHO DEFEND US ALL Military Defender: 20+ Years of Active Duty Southern California bases served: • Camp Pendleton, San Diego Navy Base • Miramar, Marine Corp Recruit Depot • 29 Palms, Fort Irwin Referrals Appreciated. Consultations Available.

Phillip Stackhouse, Attorney 427 C Street, Suite 220 San Diego, CA 92101 760-456-5386 stackhouse@militarydefender.com www.militarydefender.com

Attorney Journals San Diego | Volume 189, 2019

15

Business Lawyers for

Business People

by Dan Baldwin

Dunn DeSantis Walt & Kendrick Gather Momentum and Carve a Unique Path Forward

N

Assembling a Dream Team of Business Lawyers

early three years ago Dunn DeSantis Walt & Kendrick opened its doors, after integrating three longstanding Southern California practice groups into one firm, bringing together a talented group of experienced attorneys under one umbrella. But the six founding partners knew—and worked well with—each other in various ways prior to the formation of the new firm.

Kevin DeSantis and Beth Dunn have worked together for 30 years and brought Jim McFaul and David Cardone onto their team more than a decade ago. Together, they collaborated with Chris Walt on various matters for many years. The final piece to the puzzle—veteran Orange County business lawyer John Kendrick—rounded out the dream team roster, and these wellacquainted teammates formally opened the doors on their new firm on September 1, 2016.

Managing Partner DeSantis reflects that “the team came together at the right time.” Focusing on the synergy of the group—and its three Southern California offices—he explains that the success and growth since 2016 is a credit to the efforts of “like-minded professionals who truly enjoy working together.” But the real focus is on servicing the firm’s business clientele.

“DDWK delivers legal services on par with the largest law firms, but we do so in a personal, custom-tailored way. While our clients have come to us in a variety of ways over the course of many years, we find that they return— and become longstanding clients—because they recognize that our way of 16

Attorney Journals San Diego | Volume 189, 2019

practicing law is, at core, fundamentally just a little bit different. It’s the responsiveness, our flexibility, and a personalized attention to detail that, I believe, distinguishes us.”

The firm focuses on representing businesses in transactional matters, commercial litigation, all species of employment law, real estate, and intellectual property matters. With two dozen experienced attorneys, the firm can “punch above our weight class,” DeSantis explains. “We are

JOURNALS

LAW FIRM

OF THE MONTH

© Bauman Photographers

2019

From left: Kevin DeSantis, John Kendrick, Jim McFaul, Zach Rowland, Beth Dunn, David Cardone, Chris Walt

in practical effect a big firm, but on a smaller scale. In many respects, we are focused on the same suite of services available at much larger firms, but we do so our way, and at a price point that is more accessible to local, closely-held businesses.” By playing a role akin to “outside general counsel” to a wide variety of businesses, the firm’s stability is buoyed.

The concept of being “outside general counsel” was developed by DeSantis while working for several decades at a boutique litigation-only firm. Stymied by the one-case-at-atime approach of a litigation-only practice, DeSantis moved in

a different direction. “I developed different and much deeper relationships with clients that went beyond just handling litigation. They regularly asked me for help in other areas, including risk management, strategy, and contract drafting.” He explains that the practice shifted to “keeping the clients out of trouble, rather than getting them out of trouble.”

That paradigm shift signaled a sea change in practice, and in developing client relationships. “I prefer that our clients think to call upon us as a resource to assist with their business needs, rather than as a ‘lawyer,’ which to many people remains Attorney Journals San Diego | Volume 189, 2019

17

Top Row: David Cardone, Dino Buzunis, Remy Robalino, Josh Emory, Adam Yarbrough Middle Row: Mike Li, Teagan Dow, Kevin DeSantis, Beth Dunn, Lauren Davey, Dorota Guczalska, Teresa Sullivan, Doug Gillie, Mike Townsend, Kari Unruh, Micaela Ryan Bottom Row: Chris Walt, Jim McFaul, John Kendrick, Christine Dixon, Zach Rowland

a necessary evil to be called upon only when there’s a problem. And so, we focus collaboratively with our clients on how to avoid risk, minimize risk, and transfer risk, the big picture goal being to pursue growth and success, and avoiding and escaping litigation at minimal cost.” Founding partner Cardone echoes those thoughts, “From the beginning we wanted to take a different approach, to work with our business clients but with a different and more progressive philosophy. And we have grown alongside our clients. Their success is important to us, but it is also critical to our own success.”

Making it Personal and Being Nimble Taking a personal approach, a “one-on-one” approach, to client relationships is a focal point of the DDWK model.

Being small allows for flexibility. “For example, in a litigation matter there might be a need for multiple attorneys from multiple disciplines. We are able to custom tailor our services to meet each client’s 18

Attorney Journals San Diego | Volume 189, 2019

unique needs, because we have the resources, but we do so in a nimble, efficient way,” says DeSantis.

Barbara Mencer, marketing consultant and business development coach and principal of Rainmaker Strategies, Inc., sees DDWK as a firm with a unique approach to client relationships. “One of the things that DDWK does differently than other firms is approaching clients in a holistic way. Typically, law firms approach a client’s legal needs as a ‘matter,’ whether it be transactional or litigation, etc. But the DDWK approach is unique: The firm focuses first on the relationship with the client, to gain an understanding of the whole, and they communicate with the client about goals for each individual matter. In that way, it is made clear to the client that the firm is focused first on their overall enterprise. It’s understanding the industry the client is in, and the challenges and unique forces they operate in, as part of approaching legal services. The DDWK team looks carefully to identify what is a win for the client. It’s the business

that DDWK is to be a ‘forever home.’ We’re not looking for people who see us as a stepping stone in their career.

We’re looking for people who want to be here and who can see themselves retiring here. We say that at every interview. That’s the attitude and commitment we’re looking for. We want them to say, ‘This is the best place to work in southern California for a young lawyer.’”

© Bauman Photographers

A Philosophy of Sharing

‘as a whole’ and the client as whole rather than just ‘here’s the problem let’s fix it and move on.’ And from my perspective that is a very big difference.” Commenting on the firm’s growth and success, Mencer observes, “Clearly it’s resonating with clients.”

Building a Sustainable Law Firm A key building block of DDWK’s current and future success is the concept of creating a sustainable, multi-generational law firm. Before opening its doors, the new firm was already focused on how it will evolve, and how leadership will be groomed to continue the firm’s hallmark approach. Young lawyers are empowered to develop clients and build sustainable practices as part of the firm’s plan for long-term sustainability. And it starts with recruiting talent to the firm.

The partners stress the high caliber of the firm’s young attorneys, people who have worked at or have the credentials to work at larger firms, but who have made the strategic choice to build a practice at DDWK. DeSantis says, “We look for people who truly understand

The f ocus on s ustainability o f the fi rm is re inforced at every turn. DDWK offers their young lawyers unique opportunities to forge direct, substantive relationships with the firm’s clients. “We find that attorney candidates are attracted to our business model of sharing clients,” Cardone explains, emphasizing that “We genuinely work to help young attorneys grow their own books of business.

The specter of having lots of ‘big firm experience’ but no book of business makes our approach a breath of fresh air to the beleaguered associate who is used to billing 2000 plus hours on a senior partner’s clients’ files, but who has had no primary case-handling experience and even less client interaction.” This approach is an essential component of professional development of its younger lawyers in a novel way. In most firms, client relationships are hoarded by senior lawyers, and jealously guarded.

Young lawyers are discouraged from developing their own clients, yet simultaneously told that growing a book of business is essential to partnership opportunities. By building a team of independent, intelligent thinkers who are truly committed to growing a suite of clients through collaboration, DDWK is able to confidently deploy all of its attorneys knowing that, through the recruiting and hiring process, and with the benefit of teamwork, any task can effectively be accomplished in line with each client’s needs and budgetary guidelines.

DeSantis says, “We don’t set any business generation metrics for our young attorneys. There i sn’t a c ertain number of clients they must bring in, or dollar amounts we expect in terms of revenue generation. Instead, we give them encouragement and tools. We provide Barbara’s oneon-one client development and professional development coaching services to all the attorneys in the office. Sh e works with each attorney to develop detailed plans for each attorney to grow alongside the firm. And to that end, Barbara has played an essential, important role in all our success to date."

DeSantis explains that the firm’s y oung l awyers a re told early how important it is to develop meaningful relationships with the business owners who are DDWK’s core clientele. “We want our attorneys to understand that for the long-term sustainability of their careers they need to develop those relationships, whether that’s by earning the Attorney Journals San Diego | Volume 189, 2019

19

© Bauman Photographers

From left: Dale Heller, Greg Walt, Tanya Smith, Brad Lebow, Micaela Ryan

trust of the firm’s existing clients or by bringing in their own clients and having the support of the firm in doing that.”

Founding partner Jim McFaul explains it similarly, “It is essential to our business model that young attorneys have the skills and confidence needed to handle opportunities rarely shared with associates at larger firms. And we also have no 'eat what you kill' attitude. Instead, we promote teamwork at all levels, and when the firm does well, everybody does well. We reject the old-school concept of holding your clients close to your vest and excluding young lawyers from meaningful client interaction.” DeSantis sums it up best: “We banned the use of the phrase ‘my client’ here.

All clients are clients of the firm. I think if you asked most people in the hallways here, ‘Whose client is that?’ the answer would be, ‘I don’t know. It’s our client.’ We’re attempting to set a precedent that the focus must be on the client not on whose client it is.”

Cardone adds, “We wanted to create—and have created— a place where sharing in the hard work results in everyone sharing in the rewards. T here’s no individual success; it’s all group success.”

The Team that Makes the Team Work DDWK’s behind-the-scenes staff is a key part of how consistent professional services are delivered every day. Most of the firm’s staff has been with the team for a dozen years or more. Attorney 20

Attorney Journals San Diego | Volume 189, 2019

and staff turnover is very low. Solid roots and an experienced team empowered and encouraged to work collaboratively has led to nothing but the promise of future success. The firm has more than doubled in size in less than three years. In addition to offices in downtown San Diego, La Jolla, and Irvine, the firm has a presence in Dallas and will soon be opening an office in Phoenix. And while growth is not itself a goal, a growing roster of loyal clients signals that the firm’s appetite to acquire new talent will also continue to grow.

The law firm that came together in pieces has carved out a unique position in serving business clients, and quickly taken a leadership position in a diverse and highly competitive legal marketplace. DeSantis reflects on DDWK’s first three years saying, “From day one, our goal was to be exactly where we are today: A group of talented attorneys who enjoy working together, sustained by a group of loyal clients who appreciate our unique way of practicing law.”

Contact Dunn DeSantis Walt & Kendrick 750 B Street, Suite 2620 San Diego, CA 92101 (619) 373-0457 www.ddwklaw.com

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8 Key Law Firm Strategy Takeaways From the #LMA19 National Conference

by Rich Bracken

T

he Legal Marketing Association’s National Conference was held in Atlanta recently; over 1,500 professionals gathered to learn from industry experts, take pointers from key outside consultants and, most importantly, hear from clients.

Several key themes continued to arise in conversations and presentations: 1. Client service and experience is more critical than it’s ever been.

2. Law firms need to take a cue from the Big 4 by focusing more on operating like a business through a new approach to sales and client service.

3. Firms and attorneys need to focus on differentiation in the marketplace through expertise, branding, and thought leadership.

Below is a list of some of the key takeaways that legal marketers and consultants should be implementing ASAP at their firms. These are key strategies and tactics to be aware of as we approach the halfway point of 2019.

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Attorney Journals San Diego | Volume 189, 2019

1. Clients Are Talking, Are You Listening?

As the voice of the client should always be the priority, there were several key takeaways from the in-house counsel panel discussion, which included Mark Smolik of DHL, Alexia Mass of Volvo Financial Services and Will Barnette of The Home Depot.

• Mark Smolik, general counsel and chief compliance officer at DHL Supply Chain Americas, says the average cost of a senior member of his in-house legal team is $174 an hour.

He had a very direct message for the packed room of legal marketing professionals to take back to their firms: “I can’t afford to pay you $800 an hour.”

• “With the incredible amount of innovation and change we’re seeing in our industry, this is resulting in fundamental business model changes for us, which should be impacting you,” said Alexia Maas, senior vice president and GC at Volvo Financial Services. When referring to compliance, “it is no longer good enough for us and thus for you to be just a support function. We are changing so you have to find ways to change with us.”

• “We will continue to look for [alternatives] in discrete areas like technology or document review, but the real threat for firms are other firms that become better partners with their clients than your firms,” said Will Barnette, associate general counsel at The Home Depot.

• “You’re failing to recognize that the company behind us is run by entrepreneurs, and they’re expecting us to act that way, and we’re expecting you to act that way,” Smolik said. “The law firm that speaks as a businessperson first and lawyer second is going to get more and more of our business.”

2. Create a Dedicated Client Service Culture • A 2% increase in customer retention through a dedicated client experience and elevated client service provides the same profits as cutting costs by 10%.

• Raising the satisfaction of happy clients vs. putting out the fires of negative clients provides up to 9x more revenue.1

5. Let Technology Help You Make Revenue Partner with technology to create products and services that can work while you sleep. “69% of people would use online legal services over attorneys.” – Harris Poll, Legal Tech News Dec. 20186 6. Outsourcing Is a Great Resource The largest firms outsource 11.6% more non-lawyer functions (e.g. marketing, CRM, presentations, etc.). There was an increase of around 10% of survey respondents who felt that outsourcing legal work and non-lawyer functions have made positive impacts on their firm.7 7. Be Ready for Your Closeup Video & podcasts are becoming the main tactics in thought leadership/brand creation. Instead of stressing over posting on all channels, meet the clients where they view content (LinkedIn, Twitter, JD Supra, YouTube). Types of videos to create: • Blog

Client service leaders:

• FAQ

• 37% higher revenue growth

• Testimonial

• 48% higher profits

• Breaking news

• 33.1% higher client retention2 How to enhance client service:

8. Fine Tune Your Sales Skills from the Big 4

• Put a business professional at the table with clients.

Numerous client conversations yielded the same sentiment that a business focused professional needs to be present in conversations who has a larger view of the client, and firm’s business alignment.

• Training is most effective when done early and often.

• Coaching can change work habits that stick!

• Third-party coaches/trainers can add scalability and validation to internal programs. Leveraging client-facing sales professionals can have a huge impact on growth!

• Create client teams to interact with, and serve the needs of, the various members of your client’s team.3 3. Focus Your Expertise to Align with Your Clients Industry/sector marketing is key to differentiation moving forward for firms. By identifying your top client industry trends and dissecting the services provided, you can identify gap opportunities for additional services.4 4. Be Open to Change The industry is changing whether you like it or not. By adapting to change and creating efficiencies on delivery, you can differentiate yourself in the market. However, “69% of partners in law firms resist most change efforts.” – Altman Weil Flash Survey5

• Cultural pushback to sales professionals is common yet can be overcome.8 n Rich Bracken, Director of Coaching for Society 54, advises attorneys and professional services firms on revenue generation initiatives by leveraging data analytics, client service strategies and differentiated branding. He is also the Chair of the Legal Marketing Association of Kansas City, a frequent conference speaker and a regular contributor on Fox 4 News in Kansas City. Connect with Rich on LinkedIn and www.Society54.com.

Rich Bracken & Heather McCullough, Society 54 Deborah McMurray, Content Pilot, LLC 3 Doug Tumminello, Lewis Roca Rothgerber Christie LLP 4 Elizabeth Duffy, Acritas & Gillian Ward, Baker Botts 5 Brenda Plowman, Fasken & Deborah McMurray, Content Pilot 6 Liz Patrick, Patrick Law Group/Kevin Miller, Legal Sifter 7 Panel presentation; Altman Weil Flash Survey Statistics 8 Tom Lutz, Deloitte & Doug Ott, Doug Ott Consulting

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California Case Summaries: Free™ 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 SUPREME COURT Civil Procedure Sweetwater Union High School Dist. v. Gilbane Bldg. Co. (2019) _ Cal.5th _ , 2019 WL 962324: The California Supreme Court affirmed the Court of Appeal’s decision that affirmed the trial court’s denial of defendants’ anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. In the second stage of an anti-SLAPP hearing, when determining a plaintiff’s probability of success, a court may consider statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California. In this case, change of plea forms, factual narratives, and excerpts from grand jury testimony satisfied this requirement. A court may consider affidavits, declarations, and their equivalents only if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable. (February 28, 2019.)

Employment Cal Fire Local 2881 v. Cal. Pub. Employees’ Retirement System (2019) _ Cal.5th _ , 2019 WL 1008413: The California Supreme Court affirmed the decisions of the Court of Appeal and the trial court that concluded that the California Public Employees’ Pension Reform Act of 2013’s (PEPRA; Stats. 2012, ch. 296, §

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15; see Government Code, sections 7222 et seq.) elimination of the opportunity to purchase additional retirement service (ARS) credit did not violate the Constitution. The California Supreme Court ruled that the opportunity to purchase ARS credit was not a right protected by the contract clause. There was no indication in the statute conferring the opportunity to purchase ARS credit that the Legislature intended to create contractual rights. Unlike core pension rights, the opportunity to purchase ARS credit was not granted to public employees as deferred compensation for their work, and the Court found no other basis for concluding that the opportunity to purchase ARS credit was protected by the contract clause. In the absence of constitutional protection, the opportunity to purchase ARS credit could be altered or eliminated at the discretion of the Legislature. (March 4, 2019.)

Goonewardene v. ADP, LLC (2019) _ Cal.5th _ , 2019 WL 470963: The California Supreme Court reversed the Court of Appeal decision that had allowed an employee to bring causes of action for unpaid wages against a payroll company for the employer for breach of the payroll company’s contract with the employer under the third party beneficiary doctrine, negligence, and negligent misrepresentation. The California Supreme Court ruled that an employee may not be viewed as a third party beneficiary who may maintain an action against the payroll company for an alleged breach of the contract between the employer and the payroll company with regard to the payment of wages. Moreover, an employee who alleges that he or she has not been paid wages that are due cannot maintain tort causes of action for negligence and negligent misrepresentation against a payroll company. (February 7, 2019.)

CALIFORNIA COURTS OF APPEAL Arbitration Bravo v. RADC Enterprises, Inc. (2019) _ Cal.App.5th _ , 2019 WL 1417852: The Court of Appeal affirmed in part and reversed in part the trial court’s order regarding defendants motion to compel arbitration. The trial court properly severed and stayed the PAGA claims. The trial court properly compelled arbitration on three of plaintiff’s individual claims.

The Court of Appeal reversed the portion of the trial court order denying the motion to compel as to plaintiff’s remaining six individual claims by plaintiff on the basis that California Labor Code section 229 prohibited arbitration of those wage claims. The Court of Appeal ruled that the California choice of law provision in the arbitration agreement required that all of plaintiff’s individual claims be arbitrated. (C.A. 2nd, March 29, 2019.)

Correia v. NB Baker Electric, Inc. (2019) _ Cal.App.5th _ , 2019 WL 910979: The Court of Appeal affirmed the trial court’s order granting a petition to compel arbitration of all causes of action in a wage and hour case, except the Private Attorney General Act of 2004 (PAGA; Labor Code, section 2699 et seq.) claim, and staying the PAGA claim until the conclusion of the arbitration. The trial court acted within its discretion in considering plaintiffs’ response to the arbitration petition even though plaintiffs filed the response after the statutory deadline. The California Supreme Court decision of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which held unenforceable agreements to waive the right to bring PAGA representative actions in any forum, remains binding on California courts. The recent decision of the United States Supreme Court, in Epic Systems Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612] (Epic), does not change this result. While Epic reaffirmed the broad preemptive scope of the Federal Arbitration Act, it did not address the specific issues before the Iskanian court involving a claim for civil penalties brought on behalf of the government and the enforceability of an agreement barring a PAGA representative action in any forum. The trial court also properly declined to compel arbitration of the PAGA claim and stayed that issue until after the arbitration. (C.A. 4th, February 25, 2019.)

Civil Procedure Sunrise Financial, LLC v. Super. Ct. (2019) _ Cal.App.5th _ , 2019 WL 476095: The Court of Appeal denied a writ petition challenging the trial court’s denial of a Code of Civil Procedure section 170.6 challenge by several defendants to the trial judge on the basis that it was untimely filed. The Court of Appeal ruled that the trial court properly found defendants’ section 170.6 challenge was untimely because it was filed more than 15 days after they made an appearance in the action by filing an

opposition to a Code of Civil Procedure section 403 transfer/ consolidation motion in the judge’s department. While the section 170.6 time deadlines were not written with section 403 transfer motions in mind, this conclusion best effectuates the legislative intent when viewing the specific words of the statute and the statutory purpose and objectives. (C.A. 4th, February 7, 2019.)

Elder Abuse Darrin v. Miller (2019) _ Cal.App.5th _ , 2019 WL 337088: The Court of Appeal reversed the trial court’s order denying a petition for a restraining order under Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act; Welfare & Institutions Code, section 15600 et seq.). The trial court erred in denying the petition because the restraining order was requested against a neighbor. The Court of Appeal ruled that the plain language of the Elder Abuse Act authorizes a trial court to issue a restraining order against any individual who has engaged in abusive conduct, as defined by statute, toward a person age 65 or older regardless of the relationship between the alleged abuser and victim. (Welfare & Institutions Code, sections 15610.07(a)(1) and 15657.03.) (C.A. 1st, filed January 28, 2019, published February 21, 2019.)

Employment Su v. Stephen S. Wise Temple (2019) _ Cal.App.5th _ , 2019 WL 1091112: The Court of Appeal reversed the trial court’s order granting defendant’s motion for summary judgment on the basis that plaintiff’s action for wage and hour law violations regarding preschool teachers employed by defendant was barred by the “ministerial exception.” The Court of Appeal ruled that while defendant’s preschool curriculum had both secular and religious content, its teachers were not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to defendant’s theology. Moreover, defendant did not refer to its teachers as “ministers” or the equivalent, nor did the teachers refer to themselves as such. Accordingly, the teachers were not “ministers” for purposes of the ministerial exception.

(C.A. 2nd, March 8, 2019.)

Partnerships Jarvis v. Jarvis (2019) _ Cal.App.5th _ , 2019 WL 1254013: The Court of Appeal affirmed the trial court’s order granting a motion to disqualify lawyer William Roscoe, III, who had been hired by one partner to represent the partnership in an action brought by the other partner for partition by sale of a two-acre parcel owned by the partnership. Each partner owned a 50 percent interest in the partnership, and they could not agree on what to do about the two-acre parcel. The trial court properly granted the motion to disqualify because there was not a majority of partners in this two-partner business that agreed on hiring an attorney for the partnership. (C.A. 6th, March 19, 2019.) n

Attorney Journals San Diego | Volume 189, 2019

27

A Simple Exercise to Rethink and Refocus Exceptional Client Service

by Kevin McMurdo

Fifteen years ago, celebrated business guru Jim Collins published Good to Great with the help of a team of researchers. The book is widely regarded as a modern classic of management theory.

The author tracked 28 successful companies to uncover those characteristics that separate great companies from good companies.

What makes a great company? In 2004, Collins found that factors such as CEO compensation, technology, mergers and acquisitions and change management initiatives played relatively minor roles as success factors. Great companies were the beneficiaries of what Collins called “Level 5 leaders” who possessed an unusual mix of determination and humility. They reflected a culture of discipline in all things and in particular a disciplined, clear focus on what the company does best. Greatness in simplicity.

Today, I would posit that great companies are also defined— perhaps more importantly, given the competitive nature of just about any industry—by what they offer individual clients and customers. Each time I work with my colleagues at Wicker Park Group, I am reminded of the WPG mantra: “One size fits one.”

For companies, that means that what I want from their product or service may be different from what others want or expect.

Over the past couple of months, I have been working with a new client developing a program to improve group leadership skills. In one of the group exercises, members are asked to identify companies that provide exceptional (dare we say “great”?) service,

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agree on characteristics of exceptional service and explore how to adopt those characteristics to the law firm. After a number of sessions, some well-known names emerged along with a few that were new to me. Amazon, Nordstrom, Stitch Fix, Chick-Fil-A, DoorDash, Southwest Airlines and Chewy all were cited as good examples. Common characteristics of these companies are: 1. Ease of use and a personal connection (Many of the companies identified in the exercise are ecommerce companies, offering services that require little or no personal connection. Yet if problems arise, the companies make it easy to connect with a real person.)

2. S ervice that exceeds expectations to the delight of the customer What companies might your lawyers and staff place on their list of great companies? More importantly, which of the “great” behaviors could your firm adopt as a result?

From my experience, this simple exercise generates lively discussion, healthy debate and often a surprising list of ideas and suggestions to make the practice and delivery of legal services distinctive from the competition. Try it at practice and industry group meetings, client team meetings and firm retreats. The results will surprise—and even delight—your firm. n Kevin McMurdo is founder and principal of McMurdo Consulting, which helps professionals create successful business development strategies. To learn more, please visit www.WickerParkGroup.com

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Attorney Journals San Diego | Volume 189, 2019

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