Attorney Journal, San Diego, Volume 108

SAN DIEGO

Volume 108, 2012 • $6.95

Social Network Addiction and Your Next Case

Charles Sevilla

Does Your Employee Evaluation System Need a Boost?

Nancy Jones

Presentations: A Way to Become a Magnet for New Business

Hot Weather Means Dress Codes Are a Hot Topic for Employers

Jeff Wolf

David Monks

The Next Big Thing In Attorney Marketing

The Future of Health Care for Law Firms Is Amended Becomes Stronger, Smarter, and Broader Reaching

David Lorenzo Developments in Forensic Audio Enhancements

Steven Driss

Sean Coetzee

PROFESSIONAL PROFILE OF THE MONTH

NCRC’s Land Use & Environmental Mediation Group

Attorney of the Month

Adryenn Cantor

WINNING

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GIVING TRIAL LAWYERS • Business • Wrongful Death

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Attorney Journal | Volume 108, 2012

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TABLE OF CONTENTS features

2 0 1 2 E D I T I O N — N O .108

4 Social Network Addiction and Your Next Case

by Charles Sevilla

8 Does Your Employee Evaluation System Need a Boost?

by Nancy Byerly Jones

10

PROFESSIONAL PROFILE OF THE MONTH

10 Breaking Ground

NCRC’s Land Use & Environmental Mediation Group

by Karen Gorden

14 COMMUNITYnews

16

ATTORNEY OF THE MONTH

16 All Roads Lead to San Diego

by Jennifer Hadley

26 Presentations: A Way to Become A Magnet for New Business

The Future of Health Care for Law Firms Is Amended, Becomes Stronger, Smarter, and Broader Reaching

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by Steven Driss

30 The Next Big Thing In Attorney Marketing

By David Monks

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

Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement.

Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2012 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Sean Coetzee Charles Sevilla David Lorenzo Steven Driss David Monks Nancy Byerly Jones Jeff Wolf WEBMASTER S. Chorng

By David V. Lorenzo

31 Hot Weather Means Dress Codes Are a Hot Topic for Employers

CREATIVE SERVICES Skidmutro Creative + Layout

PHOTOGRAPHY Bronson Pate Vinit Satyavrata

by Sean Coetzee

28 Health Savings Accounts

EDITOR Nancy Deyo

CIRCULATION Angela Watson

22 Developments in Forensic Audio Enhancements

by Jeff Wolf

EXECUTIVE PUBLISHER Brian Topor

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

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veryone is familiar with the widespread use of social networking and the electronics needed to access them. Every day we see people with their heads down walking busy streets, or worse, driving, while texting on their iPhones or Droids, checking email, or posting the latest news about their busy day.

This phenomenon is a major cultural shift in the way we live and communicate. Today, people are in constant touch with their friends and others (including, like it or not, enemies), revealing all sorts of data about themselves through their daily postings.

Naturally, if such a social movement affects the universe, it inevitably affects the legal world. And it has. In a big way.

The cyberworld is far too immense for a discussion of all the legal issues that arise in it. The purpose of this article is to suggest ways for counsel to talk to clients, witnesses and staff about their uses of cyberinformation and alert practitioners to issues that will undermine a case and a client.

Social Network Addiction

Social Network Addiction and Your Next Case

Many users are addicted to their social media and electronics.

Psychologists like Dr. Michael Fenichel have popularized the notion of a Facebook Addiction Disorder (FAD) — that is, an obsession that causes individuals to spend so many hours of the day on Facebook that their lives are adversely affected. So many hours of the day on Facebook that one’s life is adversely affected.

Such an addiction can affect our clients.

Problem Examples The varieties of mischief clients and witnesses can create for themselves on the Internet or with cell phones and other electronic equipment are almost endless. A few include: • a juror contaminates the verdict in a long trial by daily posting on Facebook or Twitter about how the case is going; • a trial witness is destroyed on cross-examination by having her testimony exposed as a lie by her Facebook postings made the previous day;

By Charles Sevilla Charles Sevilla is a San Diego attorney and practices exclusively in the area of criminal law, both trial and appeals, in California State and Federal Courts. He is a frequent speaker and presenter at legal conferences.

Chuck has published books on legal humor and two novels about a fictional New York City defense lawyer, John Wilkes. He has authored numerous law review articles and is the co-author of a legal text, California Criminal Defense Practice, used by lawyers and in law schools throughout the country. CharlesSevilla.com 4

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• a client is discovered running an illegal cocaine business through Craig’s List; • a miscreant runs an anonymous (or so he thinks) libelous cybersmear campaign via webposts against a person’s small business; • a bully, using a fake social network profile, repeatedly attacks a person on another person’s social network causing the latter to commit suicide.

All these things have occurred. Lawyers have a duty to be aware of the problems attendant to social networking. Many people cannot stop using their electronic devices to communicate about themselves no matter what the outcome. It is thus immensely frustrating for judges who have instructed jurors not to use their

electronics and discuss the case as it proceeds through trial only to learn post-verdict that jurors have done just that. Trials have been overturned as a result. New legislation passed this year attempts to address the problem.1 Lawyers need to take affirmative steps to make sure that the addiction does not corrupt their cases.

First Interview Checklist When interviewing a new client (or witness thought to be favorable to the case), inquiries must be made of the use of social media. Clients, and particularly younger ones, may see older attorneys as technological dinosaurs and tend to dismiss lawyerly admonitions. Thus, it is important to carefully explain the potential self-destruction that comes with misuse. The following list of suggested questions provides a start to client counseling.

An explanatory introduction to these questions could begin with: Because the Internet could be a source of much public information about yourself, I need to know what presence, if any, you have there.

Law enforcement routinely checks available resources on the Internet to discover information about persons of interest. This has led to persons being criminally prosecuted simply based upon what they have placed on the online, or perhaps what their friends have posted about them. To properly advise you, I need to know the following: 1. Do you have a profile on a social network like Facebook, Twitter, Linked-in, MySpace, Google Plus, etc.? Is it in your name? How many such profiles do you have? Are they it open to the public? What is posted? Where else do you post your communications? Have you commented on articles, blogs, or pictures on other people’s social media sites?

2. Do you have your own website? How long have you had it?

When did you first launch the site?

3. Do you have a blog? What do you post there?

4. Do you post material on YouTube? What exactly?

5. Do you buy or sell on eBay, Craigslist, or similar services?

6. Does your cell phone have video? Do you have a Flip Video or other similar recorder? Where is the content stored? Do you upload any of it to the net?

7. Do you email from a computer, Blackberry, iPhone, iPad, iPod, iTouch or other smart phone? Do you use Skype or Gchat? FaceTime? Instant Message?

8. Do you text message from your cell phone?

9. Do you use LimeWire or similar peer-to-peer programs? Why? 10. On what media do you store files or photos: a PC, Mac, laptop, PDA, DVD, CD, Compaq Flash cards, or do you

backup files to an Internet site such as DropBox, iCloud, Mozy or similar resource?

Caveat Depending on the answers, each of the above questions may trigger follow up questions. And this raises an important point.

What if clients tell you they post material on their website or blog that may well have evidentiary value to the case? What if this material may undermine the client’s credibility or implicate the client in criminal activity? How does one advise a client?

If the social media site has obvious harmful “evidence” on it, counsel surely cannot advise taking down the material without running afoul of ethical2 and legal3 mandates about destroying evidence. All counsel can do is advise, as stated in the introduction to the checklist, that social network surveillance occurs continuously in the cyberworld. Counsel should also strongly advise the client never to discuss the case with others in emails, blogs, or network sites, i.e., outside the confines of the attorney-client privilege.

First Interview Warning About Confidentiality Any discussion with others about the case and particularly about communications with counsel, be they verbal or in writing (e.g., email, blog or social network posts) can destroy the confidentiality of that communication and thus the attorney-client privilege. This means the communication is

Effective January 1, 2012, California law states that jurors must be instructed not to conduct research, disseminate information, or converse by any form of electronic or wireless communication. Penal Code section 1122(a)(1); CCP section 611. Violations are punishable by civil or criminal contempt.

CCP section 1209(6); Penal Code section 166(6). 2 California Rule of Professional Conduct 5-220 states: “A member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or to produce.” 3 See People v. Meredith, 29 Cal.3d 682 (1981)(counsel cannot deprive the prosecutor of evidence of a crime found and retrieved by a defense investigator); Calif. Penal Code section 135 makes it a misdemeanor for a person who knows that material is about to be part of an authorized investigation destroys or conceals it.

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fair game for collection and use by outsiders. As one court stated: “When a client reveals to a third party that something is ‘what my lawyer thinks,’ she cannot avoid discovery on the basis that the communication was confidential.”4 The client should also be warned not to attempt to contact adverse witnesses. Even anonymous email contacts can be discovered both technologically and legally.5 Such contacts, if threatening or harassing, may also be criminal. (E.g., In re Rolando S. (2011) 197 Cal.App.4th 936 [the defendant accessed the victim’s Facebook account, altered her profile, and posted obscene messages and comments purporting to come from her; held, this constituted identity theft in violation of Penal Code section 530.5(a) and also violated section 653m, subd. (a) by using an electronic communication device to contact another person with obscene language and an intent to annoy].)

Further, if the client uses computer shareware such a LimeWire, which allows access to the computer to anyone in the cyberworld, there is no confidentiality about anything on the computer. Such publicly accessible file-sharing computer programs are deemed the same as having a website open to the public. There is no expectation of privacy in such computers.6 Clients should be instructed not to use such shareware because all communications by email with counsel will be open for public inspection and may destroy the confidentiality of those

communications. Also, the typical use of such shareware is to violate copyrights by downloading as music, TV shows and movies, all of which are illegal.

Investigation Whatever attorneys cannot do, the same rules also apply to staff, hired experts and investigators. We have a duty to make sure they all understand the rules.7 One of the obvious investigative temptations is for the investigator to “friend” an adverse witness on Facebook. Is this permissible? Assume the investigator truthfully identifies himself but does not reveal that the purpose of the “friendship” is to gather information about the witness on a pending case. Several bar associations, including San Diego’s, have found this practice unethical.8 There are also legal problems with such an investigative tactic. Penal Code section 1054.8 says that witnesses whose names have been disclosed in formal discovery in a criminal case cannot be questioned without the defense interviewer complying with disclosure requirements of the statute. This law has obvious application when contacting such witnesses via a social network or email.

Generally, however, using Internet tools to investigate witnesses can be very fruitful. Just “Googling” a name often provides valuable information and is permissible. A host of pay sites will drill deep into the cyberworld to gather even more information about a person.

Conclusion This short article offers a view of some of the issues presenting themselves when the cyberworld meets the representation of clients. The message here is to make inquiries about clients and witnesses use of the social networks, keeping in mind the above limitations of the law and ethical standards. Counsel’s timely advice may forestall a client’s thoughtless conduct that comes back to damage the case. n

Lenz v. Universal Music Corp. (N.D. Cal. 2010) 2010 WL 4789099; 2010 U.S. Dist. LEXIS 125874. Note: this case involves opposing counsel getting a discovery order from the court for such communications.

5 O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446 (“where a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions.”)

6 United States v. Borowy (9th Cir. 2010) 595 F.3d 1045, 1048.

7 The Comment to Rule 3-110, Rules of Professional Conduct, states the duties of the rule “include the duty to supervise the work of subordinate attorney and non-attorney employees or agents.” See also Crane v. State Bar (1981) 30 Cal.3d 117, 123) and Pincay v. Andrews (9th Cir. 2004) 389 F.3d 853, 856.

8 The Philadelphia Bar Association Professional Guidance Committee stated that an attorney cannot ethically ask a third party [read investigator] to “friend” a witness on a social network. (Opinion 092, March 2009.) The San Diego Bar Association Ethics Committee agrees. It opined that a lawyer may not “friend” a represented party or, without disclosure, even an unrepresented person. (Ethics Opinion 2011-2.)

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Does Your Employee Evaluation System Need a Boost?

by Nancy Byerly Jones

T

oo many law offices have sloppily put together employee evaluation systems. These mostly ineffective systems are typically used haphazardly, inconsistently and hurriedly. This means that they result in unfair and inaccurate results.

Does it really matter in the big scheme of things?

The answer is a resounding “Yes” if you want a steadily productive, loyal, efficient and top-notch legal team in your corner. Good evaluation systems are well worth the time and effort put into their creation, implementation and monitoring. They help management stay in touch with the proper placement of employees, their value to the firm and whether they are doing their jobs well, poorly or somewhere in-between.

Employees like well-designed evaluation systems because: (1) they help clarify what the firm expects from them: (2) they keep them informed in a timely manner as to whether they are performing satisfactorily; and (3) timely evaluations provide the opportunity for a professional exchange of ideas, concerns and questions.

Whether your office’s employee evaluation methods need to be established, could stand to be updated or perhaps entirely overhauled, the starter tips below are intended to help you get the ball rolling: ❍❍ Know the purposes of your evaluation system (e.g., improve job performance, maintain top quality legal teams, help employees reach their professional goals, fix issues needing attention before they fester and implode, ensure healthy morale by keeping a check on and eliminating chronically poor attitudes or trouble-making employees, etc.).

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❍❍ Ensure employees understand the “whys” behind an evaluation process (e.g., to enhance the team’s and each individual’s strengths and skills, to keep small issues from becoming big ones, to help make promotional and/or repositioning decisions, for strategic planning, bonus determinations, efficiency and more). ❍❍ Create a clear, written policy statement of how and when evaluations are conducted, the length of time involved, how final results are reached and when evaluation results will be shared with employees (e.g., objective and/or subjective evaluations, work-in-progress reports and observations, including specific examples of work well done and/or of poor work product).

❍❍ Provide detailed, written instructions regarding employee rebuttal/appeal options (e.g., during the interview, after the interview, how to submit concerns, to whom, within what time limits, what response time is to be expected from management, etc.). ❍❍ Know how confidentiality is protected and explain safeguards within your policy (e.g., how many copies of the evaluation documents are kept by the employer, who has access, the firm’s non-retaliation policies and how to report alleged retaliation, breaches or potential breaches of confidentiality, etc.). ❍❍ Provide clearly written documentation as to how the firm follows up on decisions made as a result of evaluations, including possible outcomes for typical areas needing attention (e.g., mentoring of employees, one-onone coaching for organizational or better communication skills, anger management, conflict resolution, additional substantive training, etc.).

If your firm has conducted evaluations on an ad hoc or on-off basis, I strongly recommend that you implement a consistent employee evaluation plan immediately.

❍❍ Design an evaluation checklist or form to be used by everyone in the firm to record topics to be discussed and responses of the employee — and that supervisors and employees both sign and date at the conclusion of the evaluation process.

❍❍ Determine if your firm will ask employees to submit self-evaluation checklists. If so, create one, hopefully after asking for attorney and staff input as to the form’s content. The same holds true for establishing a method for employee feedback regarding co-workers and supervisors.

Establish a policy that ensures confidentiality and that all employees are held accountable to participate.

❍❍ Create an annual “employee action plan” form that includes goals expected to be reached, areas of improvement needed, new skills to be learned, etc. ❍❍ Have your evaluation policy and process reviewed by outside, experienced employment counsel to ensure that all related laws, regulations and other guidelines are strictly followed in the design and actual implementation of your system.

The list above is not intended to be all-inclusive, but as a starter road map to assist small law firms in strengthening, creating or overhauling their current systems. The huge majority of attorneys and staff I’ve been blessed to work with through the years are strongly in favor of fairly and comprehensively designed and regularly implemented evaluation systems.

If your firm has conducted evaluations on an ad hoc or on-off basis, I strongly recommend that you implement a consistent employee evaluation plan immediately. Your time and effort will be rewarded multifold for years to come — in team loyalty, improved morale, increased efficiency, higher productivity and healthier and timelier inter-office communications. n Nancy Byerly Jones is enthusiastically and tirelessly dedicated to helping her clients build business success stories that last...and as a family law and workplace mediator, she is a passionate advocate for helping keep folks out of the courtroom and moving positively forward with their lives. Please visit her website (http://LawBusinessTips.com), on Twitter (http://Twitter.com/lawbusinesstips) or on LinkedIn (http://www.linkedin.com/in/nbjones). If you have any questions for Nancy, she’d enjoy hearing from you by email too: nbj@ nbjconsulting.com

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BREAKING GROUND

JOURNAL

FEATURED PROFESTSHIOENMAOLNPTROFILE OF

2012

H

by Karen Gorden

NCRC’s Land Use & Environmental Mediation Group, With A Combined 150+ Years Of Expertise, Is California’s First Mediation Group Dedicated To Resolving Environmental, Land Use, Energ y And Public Policy Issues.

L

and use and environmental disputes can be complex and contentious. They pit preservation of the natural environment against new housing for a growing population.

Or sacred Native American sites against new energy facilities.

Or historical resources against new infrastructure. Such standoffs almost always result in years of drawn out, emotional litigation, with both sides frequently unhappy with the outcome, particularly in California.

According to Cary Lowe, one of the founders of the National Conflict Resolution Center’s new Land Use & Environmental Mediation Group, “In other parts of the country, mediation can be mandated in land use disputes. In California, however, the laws do no more than encourage its use.” For Lowe, a land use lawyer and certified urban planner with 35 years of experience representing public agencies, developers, Indian tribes and non-profit organizations, there had to be a better way to solve these contentious disputes. “I got to the point where I was very frustrated with how intense land use conflicts had become.” His initial forays into mediation convinced him that this was a better option, and he decided to become trained and certified.

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Building the Framework Michael Jenkins happened to be one of Lowe’s instructors. Jenkins’ 20 years of mediating expertise, including teaching mediation at law schools and for the National Conflict Resolution Center, coupled with 25 years working with public agencies, had brought him to a similar view on land use disputes. According to Jenkins, “Mediation is a proven method for resolving a wide variety of business, financial and personal conflicts, with a success rate of over 80%, so why not apply it to land use issues?” Their mutual interest in bringing mediation to land use and environmental disputes began to take shape.

Soon after, Lowe was introduced to John Reaves, an attorney for more than 25 years of experience specializing in environmental and business disputes and litigation, with special expertise involving hazardous materials. His interest was piqued immediately by the ideas Lowe and Jenkins were formulating. The three of them decided to form the new group, and Reaves quickly earned his mediation credential as well.

At the same time, Jenkins’ colleague Barbara Filner, the founding director of the National Conflict Resolutions Center’s Training Institute, had just retired from NCRC after

Photography by Bronson Tate

by teresa warren

25 years. Her expertise included designing and conducting workshops around the United States and Europe on mediation, facilitation, and conflict resolution. She had published numerous articles and co-authored three books on culture and conflict resolution, and taught negotiation at USD School of Law. Like Jenkins, she had personally mediated over 500 cases.

Most importantly, she had expertise in facilitating resolution of conflicts with large numbers of disputants, as often occurs in land use and environmental conflicts.

Lastly, Reaves approached Richard Caputo, an engineer and mediator who had spent much of his career with the NASA Jet Propulsion Laboratory and had decades of expertise in energy issues. He had been recognized as a Mediator of the Year in Los Angeles County and, like Filner, had experience in facilitating dispute resolution involving large groups. Caputo had recently retired to Julian. Frustrated over unresolved conflicts affecting the region’s energy future, Caputo eagerly joined forces with the others.

Together, the five founders of the newly formed Land Use & Environmental Mediation group have more than 150 years of practical experience relating to the resolution of environmental, land use, energy, and public policy issues.

teams involving dozens of projects, resulting in resolution of a host of working disputes.

Why Mediation?

Ribbon Cutting Ceremony:

As Filner explains, “In mediation, unlike in court or in regulatory proceedings, the mediator does not rule in favor of one side or the other. The mediator’s job, instead, is to facilitate a negotiation among the parties and assist them in reaching a mutually acceptable agreement. Sometimes, the settlement is based on simple compromise, but just as often, it involves finding creative solutions.”

Mediation allows exploration of settlement terms that cannot easily be considered in litigation. For example, Jenkins mediated a California Environmental Quality Act lawsuit over a city road project that threatened to impact a local business.

The owner sued, claiming that the environmental review was inadequate. However the lawsuit came out, the project ultimately would have gone forward, but only after great delay and with increased cost. Instead, through mediation, the parties identified a cost-saving change that minimized project impact to the business, and the lawsuit was dismissed.

A similar situation involved a suit by an environmental group over the impacts of a large residential development. After years of litigation, Lowe mediated a settlement which satisfied the environmentalists, improved aspects of the project at an affordable cost to the developer, and eliminated a political headache for the city.

Mediation has also proven to be valuable in minimizing strains between the disputing parties. Through mediation, Lowe helped an organization of neighborhood residents and a local bar resolve a long-running, acrimonious conflict over noise and other disturbances from the bar and its patrons.

Similarly, Caputo facilitated a lengthy process among scientific

In late 2011, as a metaphorical ribbon cutting, the Land Use & Environmental Mediation Group decided to go big, and pro bono, by offering its services to resolve the high-profile dispute over reconstruction of the Plaza de Panama in Balboa Park.

With the agreement of the parties, Lowe began serving as their mediator. Although the issue is still unresolved, the fact that both parties in dispute agreed to take the issue to mediation before litigation is a marked success for not only the Land Use & Environmental Mediation Group, but for the future of mediation in this field as a whole.

As far as the future of the not yet one-year-old group goes, Reaves says “Environmental conflicts are increasing in frequency, Most of them continue to be fought out through regulatory proceedings and litigation. Neither of those processes is very effective at resolving the issues and concerns which underlie these disputes. We are demonstrating that such disputes can be resolved more quickly, more creatively and at less cost than through the traditional, conflict-based methods.” n

Defining Areas of Service The group is seeking to educate developers, environmental organizations, businesses and public agencies, as well as their attorneys and consultants, about the benefits and opportunities of using mediation in solving land use and environmental disputes. They hope to apply mediation and public facilitation to conflicts over: new development; environmental regulatory issues, including CEQA, air quality, water quality, and endangered species protection; permits and permit conditions; water supply and water rights; siting of energy and other facilities; natural resource development and restoration projects; soil and ground water contamination; toxic torts; climate change impacts and adaptation, including compliance issues under the California Global Warming Solutions Act; “green” advertising or product claims; environmental insurance claims; neighborhood and homeowners association disputes; nuisances and other community conditions; and public policy development, including public and private stakeholder meetings.

Contact: Land Use and Environmental Mediation Group, National Conflict Resolution Center 625 Broadway, Suite 1221, San Diego, CA 92101 www.ncrconline.com/MediationEnvironmentalLandUse.php Cary Lowe, carylowe@cox.net, tel. (619) 255-3078 Michel Jenkins, eradbami@cox.net, tel. (619) 871-7498 Barbara Filner, renlifb@gmail.com, tel. (619) 840-5039 John Reaves, john@lawreaves.com, tel. (619) 525-0035 Richard Caputo, sdsurich@gmail.com, tel. (760) 765-3157 Attorney Journal | Volume 108, 2012

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COMMUNITY news n Best Best & Krieger LLP ranked 15th among the nation’s most racially diverse law firms, with nearly 20 percent of its attorneys hailing from minority backgrounds, according to The American Lawyer’s annual Diversity Scorecard, published in the magazine’s June issue.

BB&K, with 200 attorneys in nine offices including San Diego, placed in the Top 20 for the 5th year straight. In all, 233 of the nation’s ARLENE PRATER largest and highest-grossing firms responded to this year’s survey, placing BB&K’s No. 15 ranking in the top 6.5%. The survey showed clearly showed BB&K’s percentage of minority attorneys, at 18.5% is nearly 5 % higher than the national average of 13.6%. The percentage of BB&K’s minority attorneys who are partners, at 14.4%, was the 9th highest overall. Arlene Prater, managing partner of the firm’s San Diego office, noted the results also placed the firm 9th overall for the highest percentage of minority partners. nHiggs Fletcher & Mack, a San Diego-based, full-service law firm for more than 70 years, announces the hiring of a new associate, Ed Boniske.

Boniske will join the firm’s Labor & Employment practice group.

The addition of Boniske brings Higgs Fletcher & Mack’s total lawyer count to 67 up from 63 at this time last year.

“There are a number of exciting changes happening at Higgs this year,” said John Morrell, Managing ED BONISKE Partner of Higgs Fletcher & Mack.

“We are continuing to add talented attorneys like Ed while undertaking a re-branding initiative. We look forward to continued growth and expansion in several practice areas.”

Boniske is a talented litigator focusing in commercial litigation in federal and state courts and in private arbitration. He is a 2009 graduate of the University of San Diego School of Law and has an undergraduate degree in Political Science from University of California Berkeley. Ed comes to Higgs Fletcher & Mack from Duckor Spradling Metzger & Wynne where he was a member of their employment and real property practice groups.

Boniske will join the firm’s Labor & Employment practice group.

The addition of Boniske brings Higgs Fletcher & Mack’s total lawyer count to 67 up from 63 at this time last year.

“There are a number of exciting changes happening at Higgs this year,” said John Morrell, Managing Partner of Higgs Fletcher & Mack. “We are continuing to add talented attorneys like Ed while undertaking a re-branding initiative. We look forward to continued growth and expansion in several practice areas.”

Boniske is a talented litigator focusing in commercial litigation in federal and state courts and in private arbitration. He is a 2009 graduate of the University of San Diego School of Law and has an undergraduate degree in Political Science from University of 14

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California Berkeley. Ed comes to Higgs Fletcher & Mack from Duckor Spradling Metzger & Wynne where he was a member of their employment and real property practice groups.

Boniske will join the firm’s Labor & Employment practice group. nJohn H. Gomez, Founder and Lead Trial Attorney of The Gomez Law Firm was featured on the recent cover of Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

JOHN H. GOMEZ John was also named one of 20 Men Who Impact San Diego by SD Metro Magazine. John garnered this recognition for the second year in a row, recognized as an individuals who is making outstanding contributions to their communities and their professions.

The Gomez Law Firm, with its continued commitment to the San Diego community has also purchased 10 Charger season tickets in the “family section” of the Stadium. The family section prohibits profanity and alcohol and is a safe place for kids.

These tickets will be used to benefit kids who ordinarily may never see the San Diego Chargers in action. Law-enforcement initiatives involving kids, non-profit organizations whose focus is children and interested parties may submit their request for consideration to yolandawm@hotmail.com. n Fish & Richardson today announced that its Patent Prosecution and Patent Litigation practices have received top national rankings in the inaugural edition of IAM Patent 1000: The World’s Leading Patent Practitioners.

Fish’s regional practices in California, Delaware, the District of Columbia, Massachusetts, Minnesota, and Texas were also named in the guide.

In addition, 20 Fish attorneys — the highest of any U.S. firm — were JUANITA BROOKS selected for inclusion as “top patent practitioners” including Juanita Brooks and Jonathan Singer of the firm’s San Diego/Southern California office.

Compiled by a team of researchers from Intellectual Asset Management magazine, the IAM Patent 1000 is a guide to top patent practitioners as well as leading patent law and attorney firms in 33 of the world’s most important jurisdictions and 16 U.S. states. Based on interviews with in-house professionals and attorneys in private practice, the IAM Patent 1000 looks at the full range of patent services, from creation through management to dispute resolution. According to IAM, “this unique guide is destined to become an indispensable source of information for the identification of world-class patent expertise.”

COMMUNITY news nSan Diego-based Estey Bomberger recently reached a premises liability settlement, recovering $2 million for a San Diego, CA woman who was seriously injured when she tripped and fell several years ago while shopping at a big box retail store in the San Diego area. The woman hit her head on the concrete floor and suffered a concussion and other injuries. The financial settlement Estey Bomberger obtained will allow MIKE BOMBERGER her to receive the medical care she will need to deal with the lifelong effects of her injuries. nProcopio, Cory, Hargreaves & Savitch LLP announced today the formation of its new incubator program, Procopio LaunchPad, which will assist entrepreneurs and startups in the formation, early funding, and growth of their companies. The incubator, to be housed in Procopio’s new Del Mar Heights office, will PROCOPIO, CORY, HARGREAVES & SAVITCH’S provide a basic legal start-up package, NEW DEL MAR OFFICE collaborative workspace, specialized mentoring, counseling and contacts for entrepreneurs to grow their company as well as secure funding so they can take their endeavor to the next level within six to twelve months.

“San Diego is a hotbed for innovative entrepreneurs, and so many of them can benefit hugely from some extra nurturing to move from concept to funding,” said Procopio’s Managing Partner, Tom Turner. “We are pleased to be able to provide these highly motivated individuals not only free workspace, but also valuable internal and external resources that are crucial to promoting long-term sustainability, success and fundability of their burgeoning companies.” nRandy Kay, an intellectual property partner in Jones Day’s San Diego office, received recognition from the Los Angeles/San Francisco Daily Journal as one of California’s 2012 “Top Intellectual Property Litigators.”

The Daily Journal selected Kay based on his recent wins in patent and trade secret cases for clients including Micron Technology and Histogen.

The Daily Journal reported that in the past year, Kay’s handling of “bet RANDY KAY the company” cases has included handling claims disputing more than 450 trade secrets. On June 26, 2012, Kay addressed members of the European Parliament and the European Commission as well as heads of IP for major European enterprises. At a conference held in Paris, Kay spoke on how U.S. intellectual property principles could serve as a model in the ongoing effort to harmonize European IP laws.

nThe law firm of Balestreri Potocki & Holmes is pleased to announce that Danielle G. Nelson and Douglas C. Reinbold have joined the firm as associates.

Nelson practices in the areas of insurance defense, construction defect, business litigation, real estate litigation, construction law, general liability litigation, and business and real estate transactional matters.

Nelson received her Bachelor of Arts DANIELLE G. NELSON degree from the College of Charleston in 1997. She earned her Juris Doctor from the Thomas Jefferson School of Law in 2001.

Reinbold’s practice includes litigating and resolving a variety of complex construction and design professional cases, as well as handling a wide array of transactional matters.

Reinbold received his Bachelor of Arts from Butler University in 2002 and his Juris Doctor, cum laude, from Thomas Jefferson School of DOUGLAS C. REINBOLD Law in 2006.

Balestreri, Potocki & Holmes is a boutique law firm that provides high-quality representation to a diverse range of business clients with an emphasis on the legal advocacy and consultation of business owners and companies working in or related to the construction, transportation and hospitality industries. nFisher & Phillips LLP has added Brooke Tabshouri as a new associate to its La Jolla-area office. Tabshouri brings extensive knowledge to the law firm, focusing her practice on representing employers and management in a variety of aspects of labor and employment law. These capacities include wrongful termination litigation, wage and hour violations, including class action disputes, wrongful termination, and employer training and counseling.

BROOKE TABSHOURI Prior to joining Fisher & Phillips LLP, Tabshouri held a position as a research attorney for Hon. Richard D. Huffman of the California Court of Appeal, Fourth District, Division One, in San Diego, Calif.

Tabshouri received her law degree from Boston University School of Law in 2011. During that time, she worked as a legal writing fellow for the Legal Research and Writing Program and served as a moot court participant. In her third year, she attended University of San Diego School of Law as a visiting student, where she was a member of the Journal of Climate and Energy Law. Tabshouri also served as a judicial extern for the California Court of Appeal in San Diego.

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Attorney Journal | Volume 108, 2012

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All Roads Lead To

San Diego

By Jennifer Hadley

a

dryenn Cantor’s Expertise in Litigation and Mediation of Family Law has led her from city to city, and finally back home, complete with a map for the future of family law, in Cooperative Divorce

AV® Martindale-Hubble-rated attorney Adryenn Cantor is no stranger to San Diego, nor to the California State Bar, particularly the California Family Law Executive Committee. She graduated from law school in San Diego (at what was in 1979, Western State University College of Law, but is now Thomas Jefferson School of Law) and has spent years serving the State Bar. But even those noteworthy efforts on her part aren’t necessarily why she’s so well known. That reputation for expertise and experience in family law stems from her years of running litigation and mediation practices in cities up and down the coast of California, and more than a decade of work training others in mediation, developing a revolutionary mediation paradigm aptly titled the Adryenn Cantor Mediation Process.

law school. Within 3 and one-half years of taking that final, she became a lawyer, unfortunately, at the same time she was in the process of getting a divorce.

Cantor had decided that if there was one field she wasn’t interested in pursuing, it was family law.

However, she couldn’t help but notice that at that time, there were very few women practicing law, and “family law was the only place we were really accepted.” Still, she had no interest in the field.

A couple of phone calls changed her mind. The first was from an electrician, who queried as to whether or not she would handle his divorce. Because she was now on her own and the sole support of herself and the children in her care, she said yes. To hear Cantor tell it, “and there I am…in family law court.” The case was resolved with a favorable Every Day Is A outcome for her client, who then Winding Road referred another client (this time a Cantor’s path to the top of family plumber, also needing a divorce) law litigation and mediation was and Cantor had begun to rethink nothing if not a winding road. her staunch adversity to practicing R N O EY ATT M O E N H T T H F O Married at 19, Cantor was a family law and decided to ride mother of four children aged 3-14 the horse in the direction it was 2012 when she went back to college, running, opening her first fullintent on becoming a psychologist. time family law practice.

As she prepared to take her Spanish final, her husband A second pivotal call helped launch Adryenn Cantor suffered an intracranial hemorrhage. Though he would into her family law career. The call came from Mitchell, fully recover, the very real possibility that she would Ashworth, Keeney, Barry & Pike attorney Gary Pike. be alone to provide for four children prompted her to “Gary called and asked if I would interview with their consider a different career path. She set her sights on firm. They’d never hired a woman. I became the first 16

Attorney Journal | Volume 108, 2012

Photography by Bronson Tate

Left to Right Linda Weatherred, Paralegal; Adryenn Cantor, CFLS; Sydney Sterling; Mitchell Sterling, Sterling Services Attorney Service

woman attorney with the firm, and they went on to hire 7 women associates after that,” she recalls proudly. She spent the next couple of years with the firm, with great success.

But in 1982, a case would change Cantor’s trajectory, both legally and geographically. “I was the third attorney to work on the case. My client wanted an order in place whereby her ex-husband and son’s father would only be able to see the child in Arizona. Her goal was to make sure that he did not have his son in his life. I won that case. But when I looked at the boy’s father, I saw the cost of that win on his face. I was disgusted, and saddened,” she says.

Cantor made a decision as a result, which had her moving with her daughter to Monterey to begin training as a mediator.

She became actively involved in helping initiate a mandate to educate the Family Law Bar statewide about mediation through C.E.B courses. With training under her belt, she would spend the next five years mediating and litigating in greater metropolitan San Francisco.

At the time, she recalls “there was a stigma in Southern California that ‘weak’ attorneys became mediators. In Northern California, the opposite was true. Good litigators made for good mediators.” Eager to further the awareness of mediation 18

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as an alternative to litigation, Cantor moved back to Southern California, where she was hired by Arlene Coleman Schwimmer, who had a thriving litigation practice “to the stars” but who allowed Cantor to litigate for her firm while also mediating with some of her clients. This led to Cantor relocating a solo litigation and mediation practice in Santa Monica, founding and directing Legal Alternatives Mediation Services, which would ultimately have her on the road once again.

On The Road Again Adryenn took her expertise on the road for the next decade.

She’d developed a mediation training program that was highly sought after by those both in and outside of the legal community. “I developed a mediation model used widely in California, by many who have taken my introductory and advanced seminars. I wrote, produced, lectured and taught this model in California and Nevada beginning in 1993,” she says. Simply titled the Adryenn Cantor Mediation Process, she loved the mobile work of training attorneys, judges, financial professionals, psychologists and others in effective mediation.

The value of this work did not go unnoticed. “Several judges in the California courts implemented a pro bono mediation

program for family law litigants and trained lawyer mediators, after receiving this training,” she says. Moreover, the California Bar began to take notice of her skills, and Cantor became a respected participant and speaker on various panels held by the California State Bar, Continuing Education of the Bar (C.E.B) and for many local Bar Associations seminars, including San Francisco, Los Angeles and San Diego. She also began contributing to legal journals and other publications on family law issues and served for a time as the Mediation Editor for the California State Bar Family Law News. She also appeared as a regular guest on radio and television programs, speaking on current California family law issues.

Simultaneously, of course, she was mediating cases of her own. “I would attend therapy appointments, I went into homes, I had an office in a box,” she laughs. But for Cantor, who attributes her success to knowing that if you “do what you love, the money will follow,” it has never mattered whether she’s working from a Bluetooth or lecturing to a group of judges. Her passion for helping people through the process of divorce has never waned.

However, after more than a decade of constant travel up and down the California coast and in Nevada, Cantor decided to once again set down roots. She opened a practice in litigation and mediation in Irvine, California and launched a year-long Mentorship Program assisting litigation attorneys in having a mediation practice. Shortly thereafter, she became interested in Collaborative Law, and by 2005, she was a Collaborative Law Lawyer.

Cantor says, as the attorneys involved therefore owe “allegiance to the team.” That means, on occasion, the attorney may have to break attorney-client confidentiality, which doesn’t sit well with Cantor. Moreover, with a collaborative law contract, should the process fail, the parties are not permitted to use their collaborative attorney in court.

As an attorney who counts litigation as 75-80% of her business, whereas only 20-25% stems from mediation, Cantor finds herself in court often. Working with clients in a Collaborative Law setting prohibits her from seeing her clients’ cases through to trial if necessary. Moreover, she explains, litigating a divorce has become a “horrendous problem. The courts are really clogged, and it is difficult for people to get the job done that needs to be done in a timely and cost-effective way.”

All Signs Point to San Diego In 2006, Adryenn, started to notice that all signs were pointing her back towards her San Diego roots. It had been about 25 years since she’d left, and her mother was getting older, and Cantor frankly knew a ton of people in San Diego. Her collaborative law practice was in full swing, and she was litigating and mediating as well. Ultimately, the decision was made quickly, knowing that the business would follow from Irvine to San Diego. She soon found herself back in her old stomping ground, and back to business in the local market, a market she was determined to serve with the best options for divorce.

“I believe in Collaborative Law. I was trained in it, and it works very well for a lot of people,” she says. However, there are a couple of glitches with Collaborative Law that can be problematic, as Cantor sees it. “Collaborative Law is a process by contract. Each party has an attorney; the requisite neutral financial professional is involved, as well as other members, such as mental health professionals which comprise the ‘team’ that is involved in the dispute.” That can lead to problems,

Paving the Road to the Future of Family Law Cantor started looking at other alternatives for divorce. She alighted upon something she calls Cooperative Divorce, and this year, she launched the Cooperative Divorce Project.

Cooperative Divorce, like Collaborative Law, also works from a contract. However, should the cooperative process fail, clients are still granted the opportunity to keep their same attorney.

“I’m in the fleshing out stage,” she explains. However, she notes that Cooperative Divorce is philosophically aligned with the present court system, so there is no re-training necessary for attorneys to understand the process. Each party has an attorney, and together, the parties and their attorneys will determine if litigation is necessary, or if the divorce may be settled with a neutral financial person and/or mental health

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Contact: Law Office of Adryenn Cantor 8880 Rio San Diego Drive, 8th Floor San Diego, CA 92108 (619) 546-7652 adryenn@adryenncantor.com www.adryenncantor.com

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Attorney Journal | Volume 108, 2012

EXPERIENCE

professions, or other experts.

For now, Cantor acknowledges that there is little “talk of Cooperative Divorce.” So, keeping true to her innovative nature, she’s launching the project on her own, forging relationships with likeminded colleagues who understand that there are alternatives to litigation, and there are alternatives to mediation. Cantor sees the Cooperative Divorce as the future for divorcing parties.

“I’ve always loved that I work in an area of law that is steeped in history. However, it’s also a profession that has archaic and arcane views.

Our forefathers had no idea that we would have Google,” she says. “Things change. The legal arena has to change along with it.”

But it’s precisely this ever changing nature of law that has always appealed to Cantor. “When I became involved in mediation, it was the cutting edge of the law. That appealed to me, because I always want to remain a lifelong student of the law” she says.

Along with that constant drive to learn new and better ways of handling family law legal matters comes Cantor’s unwavering commitment to using her decades of expertise and specialization in the area of family law, sometimes as a committee member of the Family Law Section of the California State Bar, which culminated in being Chair of their Executive Committee, or working for every local Family Law Bar in the cities where she practiced. In fact, next year she’ll serve as the Chair of the Certified Family Specialists Committee in San Diego.

Indeed the road home to San Diego was long for Cantor, but she wouldn’t change a thing. From a late-blooming law school graduate to one of the most respected Family Law Specialists in the State, every twist and turn in her travels was absolutely necessary, so that she could return home and provide her clients with only the most expert family law representation and mediation skills in the state. n

» EDUCATION • Certified Family Law Specialist of the California State Bar since 1985 • Thomas Jefferson School of Law, J.D., 1978 • Western State University, B.S.L., 1976

» AREAS OF PRACTICE • Litigation • Family Law • Child Support • Mediation, Collaborative & Cooperative Divorce • Divorce

» ASSOCIATIONS & AWARDS • Past Chair of the Executive Committee of the Family Law Section of the California State Bar • Formerly with Western State University Law Review.

• Recipient, American Jurisprudence Award in Trial Practice.

• Co-Author, with Richard Sherman, “The Life, Death and Transformation of Legislation,” Family Law News, Vol. II, No. 3.

CEB Panelist, CYLA-CEB Practice Skills Training Program • San Diego Super Lawyers 2009-2012

Fisher & Phillips Value Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City

Many law firms talk about value as if it’s a new concept. At Fisher & Phillips LLP, our commitment to value dates back to the founding of the firm nearly 70 years ago.

So how do we provide this value?

We do only one thing: Represent employers in labor and employment matters. You benefit from our deep and broad expertise in the area of the law we know best.

Our attorneys treat your legal problems as business problems, and help you avoid legal disputes. We are responsive, we are economical, and we reward our associates for quality work, not just for billable hours.

We are national and local, with attorneys in 27 offices around the U.S. For more on the Fisher & Phillips Value Statement, go to www.laborlawyers.com/value.

Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland

San Diego 4747 Executive Drive Suite 1000 San Diego, CA 92121 phone: (858) 597-9600 toll free: (866) 424-2168 fax: (858) 597-9601 San Francisco Tampa Washington, DC

Spencer C. Skeen Partner sskeen@laborlawyers.com

Fisher & Phillips attorneys at law

Solutions at WorkÂŽ www.laborlawyers.com

LLP Attorney Journal | Volume 108, 2012

21

W

e may still be far from what we see on television in shows such as CSI as the enhancement of audio recordings can still require hours of intense analysis, but with a combination of cutting edge audio enhancement technology and an examiner with extensive training and experience within the field of forensic audio enhancement, we can now achieve far greater results than what was possible just a couple of decades ago.

Developments in Forensic Audio Enhancements

by Sean Coetzee

Sean Coetzee is the owner of Prism Forensics LLC which provides forensic audio enhancement and authentication. He is a graduate of Brighton University in the UK, a listed expert with the Los Angeles Superior Court and a Certified Forensic Consultant with the American College of Forensic Examiners Institute.

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In his book, “The Acoustics of Crime: The New Science of Forensics Phonetics” which covers a wide range of subjects in relation to the analysis of audio recordings for evidentiary purposes, Mr. Harry Hollien, a noted expert in the field of forensic phonetics, describes a number of audio enhancement techniques that were developed in the 1990’s. He stated at that time, “… none of these techniques currently appear to be fully operational (i.e., valid and inexpensive); most are extremely complex, time consuming and costly. At least, they are too costly to apply to the routine material produced for law enforcement, business, security or military purposes.”

Two of the techniques detailed by Hollien are cross channel correlation and adaptive filtering and with the development of computer programming over the course of the last twenty years, these techniques have now become common and invaluable tools to the forensic audio examiner.

In covert recordings, audible changes in the environment may occur unpredictably and interfere with the source of interest. For example, the recorder may have been placed inside or in close proximity of an air conditioning unit, making the conversation unintelligible. The noise coming from the air conditioner will be constant in frequency and amplitude throughout the recording, making it highly predictable; this is where adaptive filtering becomes very useful. This filter uses a signal predictor to identify these time-correlated (predictable) sounds within recordings.

Once the time correlated sounds have been detected, the predictor can then memorize the pattern of the noise and estimate what will occur next. The predicted signal can then be subtracted from the original recording, attenuating the noise from the air conditioning unit and leaving the speech unaffected. Adaptive filters do tend to

work better with low frequency type noises, such as electrical and vehicle motors, but can also be effective with the reverb and echo that can often occur in police interview recordings.

The presence of loud music, television or radio can often be present in covert recordings, intended conceal a potentially incriminating conversation. These types of interference can be a major issue, especially if they are of equal volume or louder than the source of interest and, unlike time-correlated sounds, they are unpredictable over time. Using cross-channel correlation, such interferences can be significantly attenuated either during the recording or during enhancement process. For cross channel correlation to be successful, a reference source is required; therefore, in a live situation two microphones would be needed. One microphone would be used to record the conversation and a second microphone to record the signal coming from the television or the radio for example. Both signals are then time aligned and the filter will determine which elements of the recordings have similar patterns and then attenuate these identical frequencies increasing the intelligibility of the source of interest. The interfering noise will often be within the same bandwidth frequency as the conversation; therefore, cross correlation filters will enable the examiner to control the amount of attenuation applied to avoid affecting the source of interest and introducing unnatural sounding artifacts produced by the filter from over-processing. Cross correlation filters can also be used in non-real time situations by time aligning a music track from a CD with the inaudible recording. This process is very time consuming as it requires perfect alignment of the two recordings by eye and ear and filtering of the reference signal to make it sound similar to the music obstructing the audibility of the conversation.

Cross-correlation filters will have a delay feature built-in to help with the alignment of both recordings but it will only allow for adjustments of a few milliseconds. Due to these delay issues, cross-correlation filters will often produce better results with digital recordings rather than analogue recordings because of the inconsistent speed of the motors inside of an analogue recorder, which will create a greater delay between the reference signal and the covert recording. A study titled “Music & Noise Fingerprinting and Reference Cancellation Applied to Forensic Audio Enhancement� by Anil Alexander, Oscar Forth and Donald Tunstall was recently presented at the 46th AES Forensic Audio Conference, demonstrating an automated method for cross-correlation filtering which yielded very promising results.

Even though many environmental aspects of a covert recording scenario are outside of the operator’s control, many of the issues degrading the intelligibility of a recording can easily be avoided during the recording process. The quality of the recording will only be as good as the quality of the

recorder and microphone being used. Many small and inexpensive recorders do not have the ability to accurately record the entire vocal bandwidth and the operator will often sacrifice recording quality for recording time. Poor recording levels can also introduce a poor signal to noise ratio should the levels be set too low. Every component of the recorder will introduce noise into the recording; this noise is called the noise floor. For the recording to be intelligible, the volume of the recorded source must be at a level significantly higher than that of the noise floor. If the levels are set too high, the recorded speech will sound distorted and crucial information will be inaudible.

Computer technology has provided the forensic audio examiner with an arsenal of invaluable tools such as adaptive and cross-correlation filters. With the combination of an optimum recording procedure and the audio enhancement process, significant improvement to the recordings intelligibility can be achieved and should certainly be considered. Providing the jury with an intelligible recording may greatly improve the impact of the evidence and potentially play a greater role within the outcome of a case. n

Attorney Journal | Volume 108, 2012

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PRESENTATIONS

A WAY TO BECOME A

MAGNET FOR NEW BUSINESS

BY JEFF WOLF

Y

ou are trying to build your book of business. With the competition getting nimbler and more aggressive, it hasn’t been easy. Clients are unfaithful yet they’re demanding more of your time. You have tried to be a consultative business developer, working on building relationships. You’ve been trying to do as much as you can with limited time.

One way to become a proven winner in business development — for yourself, the firm and your colleagues — is to get out there and give a talk to a roomful of people. Presenting your positions shows you as an expert, or better, THE expert, in your area of specialty. Speaking to a captive audience allows you to make your points and deliver your strongest messages.

The crowd will hang on your every word. You are the authority everyone came to see and hear. If you do it well, you’ll find this form of business development is incredibly successful. It attracts new clients. You become a people magnet. They’ll walk up to you, engage you in conversation, slip you their business cards and say, “Please call me.” Translation: “I like your message and think you are the type of lawyer with whom I want to do business.” The calls and emails will continue for several weeks as word of mouth spreads through the business community.

Sadly, most speaking opportunities for lawyers end up wasted. All that worry about the presentation, the pressure of the prep work and, at last, the performance, result in an empty-handed return to the office. What if you could come back with a list of potential clients who are excited about working with you and your firm?

As a professional speaker and presentation skills coach, I have seen lawyers speak in front of audiences over and over.

Most have no clue how to give their audiences a motivating and memorable experience.

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A Golden Opportunity Wasted I recently gave a keynote address in Los Angeles and, prior to my talk, the association had a lawyer give the membership a legal update. His thirty-minute monologue of facts and figures, presented in a droning, monotone voice while leaning on the podium, was a disaster. I watched in disbelief as a golden opportunity to connect with the audience slipped away, second by second. Every two or three minutes, groups of people got up and walked out.

Flabbergasted, I watched an audience of over 500 people, previously excited to be there, shrink by about 50%. When the speaker finally finished, he garnered a smattering of halfhearted applause — mostly because he had finished. The emcee thanked him and asked, diplomatically, if we could all take a 10-minute break — so they could regroup everyone for the next presentation — mine.

This is one of many sad examples of lawyers wasting not only their own valuable time, but also the audience’s valuable time while leaving a bad impression in the minds of 500 potential clients. When I talk with lawyers who have just given a presentation, they usually think they have done a tremendous job. Yet, no one comes up afterward or they never receive any calls or emails from the members of the audience. They then tell me, “Speaking is a waste of time and it just doesn’t generate business.” My answer to these lawyers is very simple and straightforward: “If you give a great speech, business will follow.”

The Key to Success If you are going to be a presenter, the expert, the font of wisdom, you must remember one central fact. It’s not about you. It’s about them, the audience, the listeners and people who are investing their precious morning, afternoon or evening to hear and see you.

They listen intently with one question in mind: what’s in it for me? As well, they want to be engaged by your personality and passion for your subject matter. If you are passionate about your topic, your listeners will become excited about it too. If you deliver your message with enthusiasm, voice variance and convincing inflections, staying clear of the podium and employing dramatic body language, you will become a people magnet.

That podium puts a wall between you and the audience.

Ditch it and connect with the people you want to win over.

Don’t let the podium be a barrier — that just tells those folks you’re nervous and uncertain. Remember, you’re the expert.

You know your material frontwards, backwards and insideout. Come out in the open and be open. Stand tall and confident. Connect. Smile and use a tone of voice that makes people feel good.

Here’s something to take to heart…

A famous study on communication found that:

55% of communication is body language

38% is tone of voice 7% is the actual words A Success Story Last year I spoke at an event attended by over 700 people from companies large and small. After my speech, I sat in on a couple of workshops. One was a presentation by an attorney to about 75 people. A podium stood at the front of the room but she didn’t go near it. Instead she walked from side to side and up and down a few rows. Why? To connect with her audience.

She carried herself with poise and dignity and was passionate about her subject, corporate tax law. Everyone could see that she knew her stuff and was well-prepared.

She gave her talk with energy, passion and style. When it was over, I counted 25 people who came up to her and handed her their cards, saying they were interested in speaking further with her. I heard them say so. After the room emptied, and while she was packing up her things, I walked up to her and introduced myself. We talked about how her presentations were generating new business for her firm and self-evident benefits for herself.

She said she had been doing approximately eight to 10 presentations a year. Each year, her speaking had led to increased revenues. We shared a knowing laugh when I told her our consulting firm has seen the same results. When I asked her what the key to her success was, she said, “Most lawyers think it is a waste of time to speak because they don’t want to make the effort to practice. Most of my colleagues have the attitude that it is always about them but, in the real world outside of law, it is all about the needs of the audience. That’s why I continue to speak and keep growing my practice at an unbelievable rate each year.”

Jeff Wolf is one of America’s foremost executive business coaches, speakers and management consultants. In December 2010, prestigious Leadership Excellence Magazine named him one of the Top 100 Thought Leaders for his accomplishments in leadership development, managerial effectiveness and organizational productivity. His strategic focus on solving corporate and human issues has garnered continuing raves from myriad global organizations. Jeff can be reached at: (858) 638-8260 and jeff@wolfmotivation.com.

Attorney Journal | Volume 108, 2012

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THE FUTURE OF HEALTH CARE FOR LAW FIRMS IS AMENDED, BECOMES STRONGER, SMARTER, AND BROADER REACHING

Health Savings Accounts

by Steven Driss

C

onsider this concept: we’ve always done things one way. Is there any reason that we should believe there isn’t a better way? Of course not. Even the U.S. Constitution has had to be amended when it was discovered that positive changes needed to be made. As a country, we not only adapted to the amendments, but we became grateful for them, wondering how we ever survived prior to their passing. In a similar way, the same openminded philosophy should be given consideration when it comes to health insurance. Health care coverage has evolved over time to meet the changing needs and demands of our nation’s residents. From paying for medical treatment and procedures out of pocket, to HMOs to PPOs, health insurance policies have been forced to evolve, lest they go the way of the dinosaurs.

Likewise, as a law firm partner, or owner or manager of a legal vendor company, just because you’ve always provided your employees with a particular form of health benefits does not mean that there isn’t a better, more forward-thinking way. However, reluctance to change is understandable. As we all know, the constitution has been amended less than 30 times in more than 200 years. Ten of those were our own Bill of Rights, which we take as given rights even though they didn’t appear in the original Constitution. But, when the change was for the better, we all signed up. So why wouldn’t we do the same for the benefit of our firms, practices or companies, particularly if the changes will result in saving money, while continuing to provide and even improve upon health coverage for our associates or employees. It’s simply narrow-minded to refuse to consider the change.

The latest and most pragmatic opportunity for law firms and legal vendors to save money while still providing the same quality of benefits to employees & associates has emerged in the form of Consumer Driven Health Plans (CDHPs). Of these policies, the most innovative is the emergence of Health Savings Accounts (HSAs).

HSAs are attractive to managing partners, HR departments, and office managers for three key reasons.

The first is evident in the fact that offering employees or associates an HSA will almost certainly save the firm money.

That’s a direct benefit to the firm as a whole. By offering your staff an HSA, as employers, you are opting for a highdeductible policy, which always drives down the premium on the policy.

Before assuming that changing to a high deductible health plan is a slap in the face to your valuable associates and staff, consider the following example. A firm was offering a rich PPO plan, at the rich price of $30K per month. This plan gave employees a $500 deductible, and required them to pay $30 out-of-pocket for office visit. When switching to the HSA plan, employees now faced a $2500 deductible, but then all Well Care visits were covered at 100%.

As a result of this change, the firm now paid only $18K/ month. However, in order to show their employees that this by no means disregarded their their health and wellbeing, the firm invested those savings into $2500 Health Savings Accounts for each employee. The verdict? The firm reduced its monthly premiums to $25K. Employees, for their part, reaped 100% employer-paid and 100% covered health plan from their company. The firm still saved 20% on health care costs each month. Suffice to say, both parties felt victorious.

(Of course, not all firms will apply their savings towards HSAs, but those who do; those who do so retain quality employees by being mindful of employee morale and satisfaction).

A second attraction to HSAs for law firms and vendors lies in the fact that all employees using this type of CDHP automatically receive the Wellness Benefit, at 100%. Indeed, that means that even those associates who aren’t prone to go for a yearly physical may be more inclined to do so when it’s free. Research has clearly shown that preventative medicine such as yearly physicals covered by the Wellness Benefit are influential in reducing employees’ out of pocket future health care costs.

The third attractive benefit stems from its broader appeal.

In short, the more businesses that transfer to this kind of plan, the greater the nation’s overall health care savings. This is because CDHP products such as HSAs increase in price at a lower rate than traditional PPOs because they shift control to the consumer. But they also come with a higher deductible.

In the insurance world, the higher the deductible, the lower the premium. As a beneficial by-product, the less you’re paying in health insurance premiums, the more money you’ll have to invest in additional associates or support staff, a second location for your firm, high tech upgrades to your firm practices and so on. All of these can certainly help our nation’s overall economic health.

Lastly, consider that the money that goes into an HSA is a tax deduction for the employer or firm, as well as the employee or associate. That is, in terms of tax deductions, there is no difference between a CDHP compared to a PPO. So, if you’re willing to consider that sometimes your firm’s practices need amending, and you are also open to saving money, it is clearly worth the time to meet with your insurance agent to discuss options for your firm. n

Steven Driss is President of Lifeline Employee Benefits in Tarzana, CA. Lifeline Employee Benefits was established in 1985 to help individuals and small businesses identify and purchase affordable health insurance, life, disability and other group insurance. For additional information visit www. health-quotes.net or contact Steven directly at (818) 7741003 or via email at steve@health-quotes.net

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The Next

BIG THING In Attorney Marketing

By David V. Lorenzo David V. Lorenzo is the Chairman and Founder of Rainmaker Lawyer Consulting. He and his team help attorneys make a great living and live a great life®. If you’d like a FREE CD from Dave, titled: The Five Secrets to Making a Great Living and Living a Great Life as a Lawyer, visit: www.LawyerSecretsCD.com or call 888.692.5531

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Attorney Journal | Volume 108, 2012

y philosophy on attorney marketing is simple. Marketing is communication that educates, informs and develops relationships with clients and potential clients. The person who provides this educational information is perceived as an expert.

People gravitate toward this person when they have a problem they feel he can solve.

Technology helps enable attorney marketing. Many attorneys are becoming recognized experts by publishing articles regularly on their websites. The tool that makes this possible is called a blog (short for weblog). A blog is simply a website that can be updated frequently.

While less than 20% of the attorney population is blogging, those that do write and post new articles to their website a few times each month are reaping the benefits. Clients love new, fresh, interesting content. This is the fastest way to be perceived as an expert.

To put the power of blogging into perspective, imagine that the editor of a newspaper in your town came to you and offered you the opportunity to write a weekly column. Let’s say he told you that you could write it on any topic you wanted. How would you feel about that? Would that enhance your credibility? Would that be valuable?

Blogging provides you with that kind of platform.

Now let’s imagine that someone came to you and offered you the opportunity to host your own daily TV show. You can talk about anything you want as long as it is under five minutes in length.

You can send this show to as many people as you’d like, as often as you’d like and they can view it whenever they feel like it. You can essentially become the Oprah or Larry King of your area of interest.

That platform exists and few attorneys are taking advantage of it.

In case you have not noticed, YouTube videos are the next big thing in marketing and they will be the next big thing in attorney marketing. People love to watch videos and they love to watch them on the Internet.

Here are some interesting facts: In 2009, 12.2 billion videos per month were viewed on YouTube. According to Nielsen Media Research, the average American internet user watches 182 on-line videos per month. While there are some “power users” who watch hundreds of videos, over 82% of all Americans watch at least one video per month on-line.

What this should say to you is that it just became easier to develop relationships with your clients. Video is an intimate form of media.

We all feel as though we have a personal relationship with people we see in a video. It is a psychological phenomenon. You can speak directly to your audience, in your own words, as often as you’d like.

You may be thinking that you do not have access to production studios and you don’t have time to rehearse and you can’t edit video yourself. Well, fancy production is not what this form of media is all about. It is about direct, authentic communication between you and people who are interested in what you have to say.

This means no makeup. It means no slick production. It means no fancy editing. It is you having a conversation with your audience.

You can purchase one of a dozen cameras that come with built-in software and you can get started in minutes.

The next big thing in attorney marketing is here. You can start developing deeper relationships with your clients today. n

Hot Weather Means Dress Codes Are a Hot Topic for Employers

By David Monks Monks is a recognized expert in the field of employment law, particularly difficult issues faced by employers and employees. He is a past president of the San Diego Society for Human Resource Management and a member of the National Society for Human Resource Management (SHRM). Monks has litigated cases in the areas of employment law, public entity defense, insurance bad faith and personal injury. He has successfully resolved disputes involving claims of wrongful termination, harassment, discrimination, defamation, breach of contract and Labor Code violations. He has spoken and written extensively on employment and labor issues and has been published in the San Diego Daily Transcript Law Journal, Employment Practices Liability Consultant and Los Angeles Daily Journal.

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ummer brings to all of us a spirit of relaxation, of freedom, and of fun. While work ethics remain strong (hopefully), attitudes may change regarding issues such as dress codes.

The already wide latitude available under many “casual attire” policies can be stretched further by employees wearing dresses with shorter hemlines, jeans with “fashionable” holes, Hawaiian-style shirts, tank tops, flip-flops, and other revealing or “super-casual” clothes. Do you go with the flow or take a hard-line approach?

Like all employment policies, dress codes are written to inform employees of the employer’s workplace expectations.

The most effective policies are those that provide clear guidance to employees. However, particularly when it comes to dress codes that approve “business casual” attire, summertime causes many employees to focus on the “casual” aspect rather than the “business” aspect. “Business casual” generally refers to dressing comfortably yet professionally and neatly. Employees’ broad interpretation of the dress code policy during the summer months can create problems for employers. For one, the existence of more revealing clothes increases the risk of inappropriate comments and other conduct that can potentially give rise to claims of sexual harassment. Moreover, some employees might be offended by the revealing nature of some summer wear.

Another concern among many organizations is that a relaxed approach to employees’ attire could lead to an unprofessionally relaxed approach to customer service, collaboration among employees, and other aspects of work. These problems would adversely affect public image and workplace relationships.

What can you do to reduce the risk of such problems? Keep these guidelines in mind: • Decide whether your current dress code policy needs more detail to provide employees with proper guidance about what is and is not acceptable during the summer months.

If necessary, define “business casual” and, if appropriate, prohibit employees from wearing T-shirts, shorts, flip-flops, and other overly-casual attire.

• Clearly communicate the dress code policy and the reasons behind it. If flip-flops, cutoff shorts, and T-shirts are not appropriate in your workplace, state that in a professional written memo and inform employees during staff meetings.

• Remind employees of your organization’s policy against harassment. In doing so, it can be helpful to specify that comments about an employee’s clothing constitute inappropriate conduct that violates the policy.

• Enforce the dress code in a consistent manner. Make sure that employees know the consequences for non-compliance.

• Notwithstanding the detailed nature of the policy, application of the dress code should be flexible enough to account for cultural or religious obligations of some employees.

For any company that values a positive public image and professionalism among its employees, a dress code makes good business sense. Proper implementation of a sufficiently detailed policy will help you navigate the additional dress code challenges that come with summer. n Attorney Journal | Volume 108, 2012

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