SAN DIEGO
Volume 112, 2012 • $6.95
Legal Business Development What to do With the Leads You Acquire at a Conference
Controlling Witnesses on Direct and Cross
Paula Black
Ben Rubinowitz & Evan Torgan
Keep These Documents Close at Hand for When Your Presentation Needs a Boost
Trey Ryder
Clues to Consider During an Investigative Interview
James A. Stavros & Jeffrey Baresciano
Law Firm of the Month
Thorsnes Bartolotta McGuire Financial Measures that Matter
Linda Julian AJ_Dec112_Cover.indd 1
Marketing for Lawyers and Writing for Relationships Using a Personal Approach
The Key to Time Management‌ and Achieving Work/Life Balance
Gary L. Sasso
David Lorenzo
4 Factors that Determine Buyer Behavior
Tom Trush
11/20/12 3:03 PM
SHUSTAK FROST & PARTNERS P.C. Attorneys At Law
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TABLE OF CONTENTS features
2 0 1 2 E d i t i o n — N o .112
4 Marketing for Lawyers and Writing for Relationships Using a Personal Approach Before a Client Will Trust You, They Must Feel as Though They Know You and Like You. by David Lorenzo
8 Clues to Consider During an Investigative Interview
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How Does the Interviewer Know Whether an Interviewee is Being Truthful?
by James A. Stavros, CPA, CFF and Jeffrey Baresciano, CPA
10 Keep These Documents Close at Hand for When Your Presentation Needs a Boost Here are Tools You Can Use to Turn Your Prospect’s Hesitation Into an Enthusiastic Yes!
Executive Publisher Brian Topor
by Trey Ryder
12 Communitynews 15 Legal Business Development: What to do With the Leads You Acquire at a Conference How to Turn Those Leads Into Relationships!
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by Paula Black Law firm of the Month
16 Thorsnes Bartolotta McGuire by Jennifer Hadley
22 The Key to Time Management— and Achieving Work/Life Balance A New Way of Solving an Everyday Challenge. by Gary L. Sasso
25 4 Factors that Determine Buyer Behavior Ways to Influence Potential Clients to Buy Your Services. by Tom Trush
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26 Controlling Witnesses on Direct and Cross Ways to Deal with the Out-of-Control Witness. by Ben Rubinowitz and Evan Torgan
29 Financial Measures that Matter
Professional Services Firm Requires Assessment of More than Simple Personal Fee Production. by Linda Julian
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
Editor Nancy Deyo Creative Services Skidmutro Creative + Layout Circulation Angela Watson Photography Bronson Pate Vinit Satyavrata Staff Writers Jennifer Hadley Bridget Brookman Karen Gorden Contributing Editorialists David Lorenzo James A. Stavros Jeffrey Baresciano Trey Ryder Paula Black Gary L. Sasso Tom Trush Ben Rubinowitz Evan Torgan Linda Julian WEBMASTER Chase Jones 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.
When it comes to marketing for lawyers, building a relationship with your prospective client is critical. Before a client will trust you, they must feel as though they know you and like you. This is where regular writing can be a big help.
Marketing for Lawyers and Writing for Relationships Using a Personal Approach
By regular writing, I mean using a blog, a newsletter or a weekly email to keep up communication with your base of clients and prospective clients. Writing and sharing these articles with some frequency will allow your readers to gain an insight into your mindset. It allows them to project themselves into your world and they can actually develop a relationship with you through your writing. You Write for Two Audiences: Clients and Referral Sources When I introduce this as an important component of marketing for lawyers, I always receive some resistance. This comes from criminal lawyers, immigration lawyers, personal injury lawyers and family lawyers. They tell me that people will not even visit their website until they have a need for their services. While this may be (partially) true, when they do visit your website, they will read EVERYTHING that is up there. If the information is only about you and your law firm, they will not have a full understanding of how you can help them. It is far better to have them read an ongoing narrative of your thoughts than to read a canned bio. Referral sources will also regularly read everything you write. It is critically important that your referral sources know you, like you and trust you. If you can keep them interested in what you have to say, on a daily, weekly or monthly basis, you will be amazed at the business that comes your way. Think about the member of the clergy who wants to refer immigration cases to you or the financial planner who needs to refer a divorce attorney to a client. If they want to send this referral to you, how will they gain any insight into who you are and your philosophy?
How To Write
By David V. Lorenzo Dave Lorenzo helps solo attorneys, large law firms and small independent law practices make a great living and live a great life. People say his down-to-earth personality reflects more of his street smarts than his Ivy-League education.
When attorneys start writing on a regular basis, they complain about the amount of time it takes. It does take time to organize your thoughts and put them into a coherent format for print or Internet consumption. But it is not like writing an academic research paper. You are writing to develop a relationship. Nobody is grading you. While including facts and figures is good, sometimes people are more interested in what you think and how you feel about the topic. That is how relationships are developed. You do not build a relationship in a sterile environment with
clinical information. It is messy and emotional. That’s life and that’s how you should write. There are four elements that should be included in an article you are writing for the purpose of building a relationship. These elements are summarized by using the acronym P.O.K.E. That stands for Personality, Opinion, Knowledge and Entertainment. Those are the four things readers are looking for when they read your writing. Below are some ways to incorporate each of these elements into your writing style.
Personality Each of us has a distinct “voice” when we write. Legal writing tends to dull that voice. You need to find it and put in on display in your marketing. Be a real person. Demonstrate some emotion. People are not hiring a robot when they need a lawyer. They are hiring a flesh and blood human being and they expect you to act like one. Show them who you are through your writing.
Opinion What do you think? How do you feel about this topic? Those are the questions running through the mind of the reader while they are reading your article. If you take a stand, offer an opinion, some people will disagree with you. Some may even be turned off. But others will bond with you forever. Have some courage. Give your opinion. Your readers want it.
your point across to your audience. Think of the story as an educational opportunity. Grab the audience and pull them into the story but wrap it up with an educational message. The third party story blends an emotional appeal with the appearance of a logical fact pattern.
Case Studies Case studies are a more academic version of the third party story. They contain actual facts, case information and often will contain citations. Many people use case studies when they want to make a logical appeal to their audience. Some people find this methodology to be more sterile and academic.
Personal Experience This is the most effective form of writing. When you tell a story about yourself, it allows the audience member to paint a mental picture of the entire situation. The receiver of your message will suspend disbelief and “get into” the story. They will feel the emotions you felt. They will relate to you. These three additional methods of emotionally engaging the audience of your message are all highly effective. The only decision you need to make is which method makes the most sense for you. Experiment with each writing style in your attorney marketing. n
Knowledge Educational marketing is fantastic for demonstrating knowledge. Your challenge is to do this in a way that is not condescending or demeaning. Help your readers discover the truth; do not beat them over the head with it. You are helping people explore, grow and understand; you are not teaching. There is a huge difference.
Entertainment People want to feel something when they walk away from reading your work. You must engage them emotionally. That is what entertainment is all about. You must, at some point, tap into their emotions and stir up some kind of feeling in them. That is the only way to truly develop a relationship with them. Writing this way is an acquired skill. It takes practice. Start by thinking about how you tell a story and model your writing after that. Then go back and look for each of the elements of the P.O.K.E. method in your article. If you can identify them, you’ve done well. If you can’t, see what’s missing and add it in later. It’s also very important to remember is that all of these elements must be interesting to the reader. This can be done in three different ways:
Third Party Stories Telling a story about a third party is an effective way to get Attorney Journal | Volume 112, 2012
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Attorney Journal | Volume 112, 2012
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Attorney Journal | Volume 112, 2012
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nterviews are often conducted during fraud investigations, audits, and other accounting and consulting engagements to solicit background and other relevant information.
But how does the interviewer know whether an interviewee is being truthful? The AICPA’s Practice Aid 07-1, Forensic Accounting—Fraud Investigations provides insight for CPAs conducting interviews. It indicates that skepticism should be maintained, regardless of whether the witness is friendly, neutral, or adverse. Beyond the apparent answers given during the interview, unintended verbal and nonverbal behavioral traits can help an interviewer decide on how to proceed and what conclusions to derive. The Association of Certified Fraud Examiners’ (ACFE) Fraud Examiners Manual, which is updated annually, provides examples of verbal and non-verbal behaviors that may be exhibited by a deceitful individual. What follows is a brief overview of the many examples in the ACFE publication.
Verbal Behaviors In most people, lying produces stress. The human body can attempt to relieve this stress through verbal behaviors.
Clues to Consider During an Investigative Interview
Repeating the Question – Awkward moment? Repeat the question. In an attempt to gain more time, an interviewee may repeat a question or ask the interviewer to repeat a question. Selective Memory – An individual may have a detailed memory of insignificant information, but little knowledge of important facts of the issue at hand. At this point, we are reminded of good parental advice: the truth is much easier to remember. Feigned Indifference – Truthful individuals act seriously, and likewise take the interview seriously. A dishonest individual may exhibit weak attempts at humor. Oaths – “To tell you the truth” or “to be perfectly frank with you” are common oaths liars use to emphasize their credibility.
by James A. Stavros, CPA, CFF, and Jeffrey Baresciano, CPA James A. Stavros, CPA, CFF, is a director and co-founder of Forensic Resolutions Inc. in Haddonfield, N.J., and is a member of the Pennsylvania CPA Journal Editorial Board. He can be reached at jstavros@forensicresolutions.com. Jeffrey Baresciano, CPA, is an associate at Forensic Resolutions. He can be reached at jbaresciano@ forensicresolutions.com. Reprinted with permission from the Pennsylvania CPA Journal, a publication of the Pennsylvania Institute of Certified Public Accountants.”
Attempts to Continue Interview – Liars are sometimes persistent in attempts to continue an interview in an effort to convince the interviewer of innocence. An honest person may have no reluctance to end an interview. Tolerant Attitudes – Dishonest people have a more tolerant attitude toward bad conduct. In an internal theft case the interviewer may ask, “What should happen to this person if they are caught?” The honest person would say, “They should be fired/prosecuted.” A dishonest person may say, “I don’t know,” or “Maybe they were having problems and should be given a second chance.”
Nonverbal Behaviors Look for nonverbal behaviors during an interview, too. The examples here are skewed toward conducting a fraud interview, but they can be applied in any situation in which a formal interview of a party is conducted. Posture Watch – A common defensive reaction to an uncomfortable situation is to cross the arms over the body. Feet Pointing toward the Door – A dishonest person may take on the appearance of “fleeing,” with their face turned towards the interviewer and their feet toward the door. Increase in Hand Illustrations – During threatening inquiries, hand gestures may be used more frequently to express points while speaking. Busy Hands – Some guilty parties will play with various objects, such as pencils, to relieve stress and reduce nervousness. This may be combined with the hand illustrations example. Increased Breathing or Perspiration – These behaviors may appear obvious here in print, but be sure to look for them when conducting an interview. They are worth noting.
There are, of course, limitations on all of these potential “cues.” The air conditioner may have been broken in the interrogation room, or the interviewee’s train may have been delayed and they ran to the appointment. The environment of the interview and overall comfort of the situation can also invoke several of the mannerisms discussed. A tremendous amount of work must be put into the interview before the first words are spoken, such as factfinding, research, interviews of others, and the corroboration of contended issues. Ideally, two people should be used for each interview. One reason is to properly record what was said, and another would be to look at the verbal and nonverbal gestures. It is more efficient and insightful to have one person asking the questions and the other recording what was said, how it was said, and the interviewee’s reactions in answering key questions. After the interview, both can compare notes and get a better picture of whether the interviewee was being truthful. Remember that interviews are only one of the many components of performing an investigative inquiry. This article has only covered some aspects. n
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DTIGlobal.com Attorney Journal | Volume 112, 2012
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our prospect is in your office. You’ve explained everything in detail. Yet for some unknown reason, he hasn’t agreed to move forward. Here are tools you can use to turn your prospect’s hesitation into an enthusiastic Yes!
CREDIBILITY
Keep These Documents Close at Hand for When Your Presentation Needs a Boost by Trey Ryder Trey Ryder specializes in Education-Based Marketing for lawyers. He offers three free articles by e-mail: 11 Brochure Mistakes Lawyers Make, Marketing Moves Most Lawyers Miss, and 13 Marketing Misconceptions That Cost Lawyers a Fortune. To receive these articles, send your name and e-mail address to trey@treyryder. com and ask for his free packet of marketing articles.
These tools help overcome your prospect’s hesitancy if it is due to his lack of trust in you or your ability to solve his problem or achieve his goal. Written Schedule of Fees. Prospects feel more comfortable when they see your fees in writing. Some prospects assume lawyers set their fees based on what they think the prospect can afford. Handing your prospect a schedule of fees on paper helps overcome this skepticism. Reprints of Articles You Wrote. Few things boost credibility as quickly as seeing published articles with your name in the by-line. Prospects immediately conclude you’re an expert when they see that editors have published your writings. And the more wellknown the publication, the more credibility they attach to it. Testimonials From Past Clients. Like published articles, comments from clients, colleagues and referral sources cause your credibility to soar. The more testimonials you have, the better. If a prospect is in doubt about hiring you, showing him 10, 20 or 50 testimonials melts away skepticism. (Check your rules of professional conduct. Not all bar associations allow lawyers to use testimonials.) Client Service Guarantee. Show your client the guarantees you make in writing. You might guarantee the quality of your services, the highest level of personal attention, to return phone calls promptly, to meet all deadlines, to always have a lawyer available, to not exceed the quoted fee, and so forth. Overview of Services. In some cases, prospects aren’t entirely sure what you plan to do for them. By having a written overview of what you do for clients—and a breakdown of the major steps under each service, you help your prospects see on paper what you will do. Also, by having these services in writing, you reinforce that what your prospect is asking you to do is consistent with what you do for many clients.
URGENCY These tools help overcome your prospect’s hesitancy if he knows he should take action, but his desire to delay outweighs his desire to move forward. Actual Case Histories: Prospects are persuaded when they see that you have helped other clients who had situations similar to theirs. The more similar the case history is to your prospect’s situation, the more persuasive it will be. Also, the more similar the client is to your prospect, the more your prospect will be swayed. What Your Prospect Gains From Acting Now: List the many ways your prospect benefits from hiring your services today. You might call the document: How you benefit from retaining (your name) (or your firm name). Mention a case history about someone who took action immediately — and the ways he and his family (or firm) benefited. What Your Prospect Risks or Loses by Not Hiring You Today: List the many ways your prospect’s situation can deteriorate and what he loses by not acting now. Mention a case history about someone who chose not to act—and the terrible consequences that person paid. Emphasize the unpredictability of your prospect’s situation and your sincere desire to minimize or eliminate his risk.
UNDERSTANDING These tools help overcome your prospect’s hesitancy if his reluctance is due to his lack of understanding about what you’ll do or what outcome you can achieve. Frequently Asked Questions. You help your client when you have a document that answers most questions prospects ask. The more questions you answer—before your prospect raises the issues—the more your prospect trusts that you are forthcoming with information. If your prospect has to draw information from you, you risk his concluding that you would not have disclosed these facts had he not asked. Glossary. If your prospect doesn’t understand the terms you use to describe what you’ll do, he might be happy to receive a glossary of relevant terms. Often, prospects won’t admit when they don’t understand. The more you do to help, the better they feel. Outcomes. List on a sheet the various outcomes that could result from your efforts. Ask your prospect to assume that you will get a positive result, and then ask them to identify whatever choices he will make at that point. By helping
your prospect see past your efforts to future decisions he will face, he will assume you have already succeeded and are thinking far into the future.
UNINVOLVED These tools help overcome your prospect’s hesitancy if he feels distant or uninvolved in the process. In some cases, getting your prospect involved or making small decisions calms his nerves and helps him move forward. Objectives. Hand your prospect a form that includes a list of the many objectives typical prospects want to achieve. Ask him to identify the objectives that are most important to him. This helps clarify to him what you’ll do—and helps him conclude that you understand what he wants to achieve. Contact Information. Asking your prospect to provide you with his contact information gives him something easy to write down. Other Facts You Need. Regardless of your area of law, you probably need some type of information from your prospect before you proceed. The easier it is for your prospect to provide this information, the more helpful it will be in calming his nerves and helping him move forward. Minor Decisions. If you’ve read sales books, you may know the story of the car buyer who was afraid to make the expensive decision to buy a Mercedes. The salesperson asked, “What initials do you want me to mount on the driver’s door?” The man responded by giving his initials and, at that point, agreed to the major purchase. By asking the buyer to make a minor decision, which he perceived as no big deal, the salesperson effectively sold the car. When you educate your prospect—when he understands what you’ll do—when he understands what you’ll charge — and when he trusts you, he has no reason not to move forward. When you use Education-Based Marketing™, you don’t need to “close the sale.” The “sale” closes itself through your process of answering your prospect’s questions. Eventually, your prospect says, “What do I need to do to hire you?” You show your prospect where to sign and ask for a check, which by this time are the only logical steps to take. And you’ve won a new client. n
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COMMUNITY news nAngela M. Jae has joined Casey Gerry as its newest associate attorney. Jae will join the team specializing in personal injury, as well as product liability litigation. Prior to joining Casey Gerry, Jae spent six years as a senior associate in the litigation department at San Diego-based Tosdal, Smith, Steiner & Wax. Jae earned her J.D. from California Western School of Law in 2006. While there, she received the Wiley ANGELA M. JAE M. Manual Award for pro bono legal services for her work with the Legal Aid Society of San Diego and was also a co-founder and president of the Korean Law Society and co-founder and marshal of the school’s chapter of Phi Alpha Delta, an international legal fraternity. Additionally, she was active in the Asian-Pacific American Law Student Association and served as its vice president and secretary. She worked as a law clerk at the Equal Opportunity Commission in Washington, D.C. and the Los Angeles City Attorney’s Office and as a legal assistant at Endres and Estle in San Diego. nFish & Richardson has been named the #1 Overall Litigation firm and #1 IP Litigation firm for America’s largest corporations in Corporate Counsel’s 2012 “Who Represents America’s Biggest Companies” survey. Fish was the #1 “Litigation King” according to Corporate Counsel with 16 mentions from Fortune 100 companies including Microsoft; Google, Inc.; Amazon, and Bank of America Corporation. Corporate Counsel searched public Ann cathcart chaplin records to determine the outside counsel most frequently used by Fortune 100 companies in five different practice areas, including intellectual property litigation, patent prosecution, contracts litigation, labor litigation, and torts litigation. The results are based on data from 2011. “It is an honor and a privilege to have so many of America’s largest corporations trust us to handle their most important high stakes litigation,” said Ann Cathcart Chaplin, Litigation Practice Group Leader for Fish & Richardson. “We have topped the IP Litigation survey for the past three years because we consistently deliver the quality, results, and value that our Fortune 100 clients expect.” Corporate Counsel, which is published by ALM, is a monthly business magazine for chief legal officers and in-house counsel at corporations.
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Attorney Journal | Volume 112, 2012
nJohn Gomez, Founder and Lead Trial Attorney of The Gomez Law Firm recently received two Outstanding Trial Lawyer Awards from the Consumer Attorneys of San Diego. John Gomez, along with managing partner Jim Iagmin, was recognized for his results in Zaccaglin v. Starbucks. This was followed by a second Trial Lawyer Award this year for Novak v. Pizza Hut, for which he was recognized, along with Joe John gomez LaVelle. Gomez has also previously received the Trial Lawyer of the Year recognition on two occasions from the CASD. nCasey Gerry has expanded its class action litigation practice team with the addition of veteran attorney Mark Ankcorn. Ankcorn, whose practice has been concentrated on consumer actions, is joining the firm as an attorney of counsel and will work closely with partner Gayle M. Blatt in representing clients on complex litigation matters, including national mark ankcorn class actions against the largest banks in the world. The firm is actively prosecuting cases against JPMorgan Chase Bank, Bank of America and Discover Financial Services, among others. “Mark brings us a wealth of expertise, ranging from leading a team that prosecuted the largest financial services companies in the world to representing insurance companies in major health care fraud litigation,” said Casey Gerry’s managing partner David S. Casey, Jr. “His knowledge of finance, regulatory compliance and risk exposure will be particularly important to our class action work, as well as our personal injury and product liability practices.” Prior to joining Casey Gerry, Ankcorn was in private practice in San Diego, handling national consumer class actions, with more than $9 million in settlements to date. He was also an associate with boutique litigation firms in Century City, Calif., and Orlando, Fla. After graduating as a member of the prestigious Order of the Coif – given to only the top ten percent of the class – from the McGeorge School of Law in Sacramento, Calif. – Ankcorn began his legal career as a deputy district attorney in Orange County, Calif. He earned his Bachelor of Arts degree cum laude from the University of Redlands in Redlands, Calif., where he lettered in football and basketball.
COMMUNITY news nMarks, Finch, Thornton & Baird, LLP, is proud to announce the admission of three new partners effective January 1, 2013; Danielle C. Humphries, David W. Smiley and Nowell A. Lantz. Ms. Humphries is a prominent trust and estate lawyer serving the estate planning, trust administration and probate needs of high net worth individuals. She is a graduate of Southern Methodist University Danielle c. humphries and the University of San Diego, where she received her J.D. and an LL.M. in Taxation. Prior to joining the firm, Danielle was associated with two boutique trust and estate planning firms. Mr. Smiley practices in the areas of business litigation, construction law, construction defect, and insurance coverage. He is a graduate of University of Colorado at Boulder and Creighton University where David w. smiley he received his J.D. degree. Prior to joining the firm, David was associated with a Denver, Colorado firm and gained extensive experience in the field of insurance litigation. Mr. Lantz practices in the areas of construction law, business litigation, and government and regulatory. He also practices Probate Litigation. The scope of his representation includes all aspects of litigation, from complaint filing through jury trial and judgment Nowell a. lantz collection. He is a graduate of the University of California at Berkeley, and of the University of San Diego, where he received his J.D. degree. Nowell started with the firm as a law clerk and has spent his entire professional career with Marks, Finch, Thornton & Baird, LLP. nWingert Grebing Brubaker & Juskie congratulates Charles R. Grebing for being named a Certified Legal Malpractice Specialist by the California State Bar. Mr. Grebing was one of the original 14 certified legal malpractice specialists in San Diego.
nFish & Richardson principal Juanita Brooks has been named one of California’s 2012 Top 100 Lawyers by the Daily Journal. Daily Journal, the largest legal newspaper in California, looks for lawyers who have “moved the needle, had an impact on the legal industry, the state, the nation and the world” to make California’s Top 100 juanita brooks Lawyers list. More than 1000 lawyers were considered. As one of California’s 2012 Top 100 Lawyers, Brooks was recognized for her tenacious patent infringement work in the Federal Circuit Court of Appeals. Representing Microsoft Corp., she appealed a $358 million jury award to Lucent and was able to reduce the award to $26.3 million after a second trial. Brooks considered the award to be still too high and appealed a second time. She was able to reach a confidential settlement for Microsoft for far less than the jury award. Since then, that case, Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301 (Fed. Cir 2009) has given the Federal Circuit guidance on setting similar patent infringement damages and is often referenced in other like cases. nKlinedinst PC is pleased to announce the launch of its Complex Litigation practice group, made up of attorneys across California with significant pre-trial, trial, and appellate experience in large, highexposure matters. Complex litigation regularly involves intensive pre-trial litigation and discovery, thousands of documents, huge repositories of james crosby electronically-stored information (ESI), multi-district litigation (MDL), and multi-million dollar damages. Multi-week trial support and an ability to excel under intense litigation pressures and media scrutiny are often needed to aggressively represent clients and protect their reputations and interests. “More and more, we are seeing these intense cases involving layers of complicated issues, the need to respond or seek relief immediately to protect the client, significant case management and discovery challenges, and ‘bet the business’ damages,” says James D. Crosby, the San Diegobased Shareholder who has been selected to chair the group. “These cases, and the risks and challenges they present, can be daunting for clients of any size. Thanks to the unparalleled experience of our group’s members, our Complex Litigation team can create and tailor a plan to handle any complex matter efficiently and effectively.”
charles grebing
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COMMUNITY news nMitch Dubick, Higgs Fletcher & Mack’s senior tax partner, and his wife of 38 years, Julie Dubick, were the recent recipients of the AntiDefamation League’s Torch of Liberty award. This award is one of the League’s highest honors; the Dubicks are the first individual San Diego recipients. The award goes to individuals exemplifying a commitment to promoting respect, counteracting mitch dubick hatred and bigotry, and supporting fair treatment of all. The Dubicks were recognized for their commitment to the ideals of the League for over three decades, as well as giving their time and expertise in the community. Mr. Dubick has been Chairman of the Board for Seacrest Village, San Diego Senior Community Centers and Second Chance, and is a National Commissioner and National Executive Committee Member of the Anti-Defamation League. In 1995, he received the League’s first National Young Leadership Award. Mr. Dubick has been a practicing attorney for more than 30 years. At Higgs, he concentrates his practice on tax controversy matters, representing individual and corporate clients before the IRS and state taxing authorities, as well as business, real estate, and tax planning. nProcopio, Cory, Hargreaves & Savitch announced the addition of 6 attorneys to their San Diego and Del Mar Heights offices. Raymond K. Chan, Dave Deonarine, and Cecilia O’Connell Miller have joined the firm as senior counsel and Jamie L. Altman, Jamie D. Quient, and Victor Sai have joined as associates. With over 130 attorneys in 3 tom turner offices throughout San Diego County, Procopio reported a growth of 20 attorneys from August 2011-July 2012. “We are thrilled to be able to bolster our intellectual property and litigation practices with the addition of these six outstanding young attorneys,” said Procopio managing partner Tom Turner. Altman’s practice includes representation of plaintiffs and defendants in all manners of commercial and civil litigation, including breach of contract, fraud, unfair business practices, and complex litigation. Her practice also encompasses various bankruptcy matters, including debtor/creditor relations. Chan’s practice focuses primarily on intellectual property litigation. He has extensive experience litigating utility patent, design patent, trade dress, and trademark cases, and has represented clients from the automotive, biotechnology, chemical engineering, computer, and consumer product industries. Deonarine’s practice focuses on complex intellectual property litigation. He represents clients in the pharmaceutical, biotechnology, chemical manufacturing, entertainment, apparel, food, and consumer product industries. Miller focuses her practice on complex commercial litigation and pre-litigation counseling with a specialization in insurance coverage recovery. 14
Attorney Journal | Volume 112, 2012
nFish & Richardson has been named an elite “National First-Tier” law firm in five practice areas – Patent Law, Technology Law, Trademark Law, Intellectual Property (IP) Litigation, and Patent Litigation – in U.S. News/ Best Lawyers 2013 “Best Law Firms” rankings. Fish was also recognized as the “Law Firm of the Year” in IP Litigation and Patent Litigation. Only one law firm in each practice area – from among thousands of firms nationally – roger denning is selected to receive “Law Firm of the Year” honors, making this a particularly significant achievement. Fish’s offices in San Diego, Austin, Boston, Dallas, Delaware, Houston, Minneapolis, New York, and Washington, D.C. also received top “First-Tier” rankings. “Receiving once again the first-tier ranking for our southern California practice – and our other offices – is a great compliment and one we do not take lightly,” stated Roger Denning, managing principal of the Fish’s San Diego office. “The fact that our clients and colleagues view us in such high regard is a major accomplishment for which we are quite proud.” The rankings are based on a rigorous evaluation process that includes collecting client and lawyer evaluations and peer review from leading attorneys in their field. Fish’s high rankings and designation as “Law Firm of the Year” signal a unique combination of depth and breadth of expertise and unparalleled excellence. nDLA Piper’s Darryl Steinhause has been honored with the Distinguished Service Award from the Real Estate Investment Securities Association (REISA), a national trade association of decision makers that influence over 20,000 professionals who offer and manage alternative investments. A partner in the firm’s Corporate practice and in the Real Estate Capital Markets subgroup in San Diego, Steinhause structures funds for a wide Darryl steinhause variety of significant clients across the country, acting as lead counsel on several billion dollars of fund and debt offerings. The REISA Distinguished Service Award recognizes an individual who has provided exceptional service to REISA, the industry REISA serves or the community. Steinhause was honored with this recognition during REISA’s annual conference in Las Vegas.
Have a Press Release you would like to submit for our Community News? Email it to PR@AttorneyJournal.us
Legal Business Development What to do With the Leads You Acquire at a Conference by Paula Black Paula Black is a legal business development and branding expert, author, consultant and coach. She has advised individual lawyers and law firms around the globe on everything from powerful and innovative design to marketing and business development strategy and implementation. She is the awardwinning author of “The Little Black Book” series and the Amazon-best selling “The Little Black Book: A Lawyers Guide To Creating A Market Habit In 21 Days.” For more information visit: inblackandwhiteblog.com or paulablack.com.
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worked with a client the other day to figure out what strategy she should put into place to maximize the 60 business cards she picked up during a 2-day conference that was truly filled with people who are her target market. First and foremost, it’s about building relationships, so where do we begin? The first “touch” needs to be a very personal email, referring to the interaction at the conference. This presented a problem for my client since she couldn’t remember something specific about each of the 60 individuals she met. It’s not unusual...60 people are too many unless all you are going to do is turn the names and emails over to your marketing department to add to your data base. And the probability of turning those people into clients is slim to none. There is another way. Since the attendees of this conference are her target market, she needs to make sure these 60 individuals do not slip through her fingers. Hence, it will take a bit of time but could have great rewards if done right. 1. Do research on each person. When she sees their photo, it may jar her memory or she will find something in the bio that will be relevant. 2. Sort them into A, B and C possibilities. A being the hot leads.
3. The A’s need to be sent with the VERY personal message. And include something you are giving them. A piece of information or some gesture that would be valued. You need to give something before you ask for something. 4. R epetition, repetition, repetition! It’s important that you schedule your future touch points, at least 3 for this “after conference follow up.” So, “touches” number 2 and 3 need to be planned out. All three should happen within 2 weeks of the conference. 5. On-going follow-up. A’s could be once a month, B’s could be once a quarter and C’s twice a year. Each time, refer to something that happened at the conference or some personal conversation. The idea with the “A” leads is to stay top-of-mind. With B’s and C’s, it is to move them up the chain. Think of reasons to get together. A football game, a concert, etc. Remember that generally people don’t have work just waiting for the right attorney. They find YOU and then it’s a matter of time...when you will be thought of...for work. Building the relationship is the name of this game...play it well, my friend! n
Attorney Journal | Volume 112, 2012
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CriticaL
Mass By Jennifer Hadley
S
ince 1978, the plaintiff firm, which was founded by Vincent J. Bartolotta Jr. and Michael T. Thorsnes (retired), has consistently proven its ability to produce incomparable results for its clients, while maintaining the lean inner dynamics of a well-oiled machine. In fact, since the inception of the firm, their verdicts and settlements have surpassed more than $1 billion. Yet, that’s not the reason any of the firm’s five partners chooses to practice law. “It just isn’t about the money. It’s about being given the opportunity to help people whose lives have been devastated. It’s about making a difference through good works,” declares Managing Partner Bartolotta. Indeed, one ideology has remained consistent throughout the firm’s history, no matter the number of partners or associates: “When you care, you put your clients’ interests first. Practicing law is all about helping people, and all of our partners are absolutely likeminded that way,” he adds. As the firm enters into its 35th year, its partners continue to operate as a formidable force when its client’s lives are disrupted as a result of ineptitude, catastrophe or injustice. However, that’s not to say that the firm has ever pigeonholed itself as a firm specializing in one particular field. On the contrary, it’s the firm’s diversity of interests and strengths which cumulatively come together as individual cogs in a wheel, proving a powerful ally for plaintiffs.
Service in TBM’s DNA Thorsnes Bartolotta McGuire’s history is steeped in service, beginning long before the firm was founded in 1978. Namesake partners Vincent J. Bartolotta and John “Mickey” McGuire shared a common interest in service as a whole, years before serving individuals as trial attorneys. Both men have decorated military service records. Bartolotta received an honorable discharge as a Major from the United State Marine Corps, following active duty in Southeast Asia where he served as a radar intercept officer, Wing Legal Merriam-Webster defines Officer, and earned his negotiator’s stripes. Similarly, McGuire, a U.S Naval Academy graduate, served a 14 month tour of duty, wherein he received three critical mass as a “size, combat medals for valor under fire, including the Purple Heart. He completed number, or amount large his service work at the Pentagon, where he served as press officer for Secretaries of Defense Laird, Richardson and Schlesinger. He too was honorably discharged enough to produce a particular after years of service, with the rank of Lieutenant. result.” In San Diego’s The similarities between the men who have shared a firm for four decades don’t end there. Upon graduation from law school, both military veterans legal community, Thorsnes pursued careers in law, and initially began their careers in the field of defense, Bartolotta McGuire can but neither attorney reaped much personal satisfaction from the work. Instead, they realized that their true passion was to help those faced with tragedy, injury, easily be described as a critical and injustice. mass in the flesh. The decision to pursue careers in plaintiff’s work did yield that personal reward that both Vincent and Mickey sought as individuals. More importantly, the underlying goal worked for the firm as a whole. Just three years after the 16
Attorney Journal | Volume 112, 2012
From Patents To Personal Injury; Victims of Catastrophic Events Turn To the Team of Thorsnes Bartolotta McGuire To Bring About Significant Change In Their Lives
LAW FIRM
OF THE MONTH
2012
two partnered up, Thorsnes Bartolotta McGuire had earned the designation in 1982 by American Lawyer Magazine as one of 20 outstanding new firms in the nation, and one of four from California. In 1983, the firm was selected as one of the seven leading firms in San Diego by San Diego Magazine. Individually, Vincent and Mickey each continued to earn recognition in the San Diego legal community. Both men were named to Woodward White’s Best Lawyers in America in 1987-the first year the list was publicizedand continue to be included each year. Each has received multiple Outstanding Trial Lawyer awards, and both have been honored to receive the Daniel T. Broderick Award for
Civility, Integrity and Professionalism. But where there are similarities, there are also differences. Vincent’s practice has an emphasis on business disputes, condemnation and major injury cases, which have often had him in the public spotlight. Mickey considers himself as a general litigator, who refuses to be tied to any specific categories of law. From bet-the-company litigation to personal injury, his practice has included trying cases including construction defects, landslide and subsidence claims, medical and legal malpractice, insurance company fraud, to products liability. Many of his largest victories for clients will never be available for public consumption Attorney Journal | Volume 112, 2012
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Kevin F. Quinn
Ian Fusselman
Karen R. Frostrom
food industry standards to protect the public against tainted meat. Similarly, Peake v. City of San Diego/U.S. Government (1988) was filed after two boys were killed when buried ordnance exploded in Tierrasanta. The outcome resulted in stringent standards being imposed on the military for clean-up of its old sites.
Enriching an Established Firm however, because as one partner put it, “when Mickey gets involved, the defense wants to settle quickly and quietly.” Bartolotta and McGuire had clearly alighted upon a formula that was working. Individual clients were being compensated for injuries caused by others such as in the case Doe v. Roe Company & Moe Contractors, which resulted in a settlement in excess of $14.5 million dollars for a personal injury case. The firm was also winning big for homeowners in construction defects cases including Albert J. Reed, et al. v. Davidson, et al. Equally important to the firm is a sense of duty the partners feel in regards to leveling the playing field in fights against big, national corporations as in Davis v. USAA (1995), which established that an insurance company must notify a policy holder if a renewal results in a reduction in benefits. Similarly, Shepard v. Cal Farmers Insurance (1993) established the requirement that a health insurer advise a policy holder that a disability leading to Medicare coverage would result in restricted private coverage. While there may have been only one plaintiff, the results of these cases would ultimately benefit generations to come. In other cases, the attorneys at Thorsnes Bartolotta McGuire were fighting essentially to make the world a safer place for everyone, such as in Foodmaker v. Vons (1998) which helped to create tougher
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Attorney Journal | Volume 112, 2012
As the firm continued to earn acclaim for its work on the behalf of plaintiffs in San Diego and beyond, McGuire and Bartolotta recognized that there are always areas to improve upon, in order to help not only clients, but the legal community at large. As a result, the firm became one of the pioneers of the use of laser disks and bar-coded evidence for the instantaneous retrieval and presentation of evidence to a jury. Indeed, it was the firm’s successful handling of Del Coronado Santee Townhomes Assoc. v. LAR Development/ D.G. & Associates (1993) which helped to revolutionize procedures for litigation of complex cases, and won the applause of judges ever anxious to reduce unnecessary court time. The firm has also always held that service extends beyond the courtroom. According to Bartolotta, “we work hard to improve the quality of life for our clients and then enjoy sharing the rewards of our legal practice by improving the quality of life in our community. We take as much pride in our giving as we do in our courtroom work.” To that end, Thorsnes Bartolotta McGuire has always sought out ways to be of service to its neighbors and fellow citizens through pro-bono work
Vincent J. Bartolotta, Jr.
and charitable giving. “Members of the firm participate in various legal-oriented programs such as the American Inns of Court, Law Week, the Lawyers Club, Consumer Attorneys of San Diego, Friends of Legal Aid, Volunteers in Parole, the 9/11 Victims Compensation Fund, and other non-profits that benefit both the public and the profession,” says McGuire. In fact, Thorsnes Bartolotta McGuire was among the first law firms in the nation to volunteer as pro-bono representatives for the 9/11 victims before the Special Master. Elite firms across the nation have all agreed to represent the victims on a pro-bono basis, absorbing all the costs of doing so. 100% of the funds awarded go to the victim’s heirs. To date, the firm has obtained more than $12 million for victims of the attack. All of this goes to clearly show that “it is the people at Thorsnes Bartolotta McGuire who make the positive impact on the world around them,” according to McGuire. To that end, Vincent and Mickey knew exactly what they were looking for when it came to adding new partners. In Kevin Quinn, they found a likeminded attorney hungry to fight for justice, due to his own nightmarish ordeal with a surgeon. Quinn, who had studied at the United States Military Academy at WestPoint before suffering an injury so severe that he was honorable discharged, had experienced personal suffering as the result of medical malpractice. “I had injured my knee skiing and needed surgery,” Quinn says. “When I woke up from surgery, the surgeon’s assistant said to me ‘Look, we’re sorry, but we operated on the wrong knee first,’” he recalls. Furious that as a result of the mistake he would require another surgery, he sought the advice of an attorney. “The
John F. McGuire, Jr.
attorney got my surgeon to agree to pay for my next surgery, so it wouldn’t cost me anything. Then a couple of weeks later I saw that same attorney holding a press conference with the surgeon. He was his attorney too. I was so angry; I decided immediately that I was going to go to law school, to make sure nothing like this ever happened to anyone else.” Quinn’s drive to ensure that others aren’t subjected to the same fate he was led him to a practice primarily in medical malpractice. To illustrate his commitment to achieving that objective, it was Quinn’s client who won the first settlement against Shiley heart valves in 1993. Not surprisingly, within just a few years, Quinn received an Outstanding Trial lawyer award for one of the first elder abuse death cases tried under a newly enacted state law.
Diversifying The Partnership As TBM has continued to evolve, its partners have clearly proven to themselves that core principles such as hard work and integrity are mandatory characteristics that any attorney interested in joining the firm must have. However, unlike many firms which are dedicated to a highly niche practice, TBM prefers diversity in its cases and its team. It’s not surprising then, that after associate Karen Frostrom won an Outstanding Trial Lawyer award for her work on Mesdaq v. City of San Diego et al, it was clear that her sheer talent in the courtroom, coupled with her focused efforts and expertise in the areas of Eminent Domain and Real Estate, had earned her a position as partner in the firm. Since then, she has gone on to win two more consecutive Outstanding Trial Lawyer Awards in 2007 and 2008, for Southern v. University of California and Anderprises adv. Caltrans, respectively. Attorney Journal | Volume 112, 2012
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» Vincent J. Bartolotta, Jr. • Best Lawyers, Lawyer of the Year 2012
Reaching Critical Mass While each and every partner of the Thorsnes Bartolotta McGuire team has been recognized for their individual efforts, none underestimate the value of the overall team support they receive from their colleagues, and supporting staff. According to Quinn, “Everyone has a team mentality. We have a lot of sports and military background, which emphasizes the team. Of course, there is friendly competition among us, but it works. We all share ideas and everyone is absolutely equal.” Seconds Fusselman, “the system we have put together is incredible. From our graphics and A/V support to our paralegals, to our secretarial staff, we have such diverse backgrounds, that it sounds cliché, but we really are like a family.” Frostrom agrees. “We are on our way to the moon. It is crazy busy, and we’ve built a great team that can take it on.” However, as Vincent is quick to point out, there would be no team, and therefore no team success, were it not for the underlying desire of each partner to do what is right, and give their all to every client. “There is really no secret about what we do. We really care for our clients and each case gets a piece of our souls.” For the last four decades at least, that has clearly been enough to bring about sufficient change for thousands of clients, and fellow citizens. n Contact: Thorsnes Bartolotta McGuire LLP 2550 Fifth Avenue, 11th Floor San Diego, CA 92103 Office: 619-236-9363 Fax 619-236-9653
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Attorney Journal | Volume 112, 2012
• CAL-ABOTA (American Board of Trial Advocates) Selection to Statewide Board of Directors. • 2006 Daniel T. Broderick Award for Civility, Integrity and Professionalism • American Board of Trial Advocates California Trial Lawyer of the Year: 2003 • One of the 100 Most Influential Lawyers in California — Personal Injury: 2002-2003 California Law Business (Los Angeles Daily Journal, San Francisco Daily Journal) • Trial Lawyer of the Year, Border Business Park v. City of San Diego: 2001 Consumer Attorneys of San Diego • Best Lawyers In America - Personal Injury: 2006, 19992000, 1995, 1994, 1993, 1992, 1991, 1989, 1988, 1987
Experience
In 2012, TBM was eager to add another attorney to its partnership, and found just the right mix of determination to help people and a unique specialization that would allow the firm to diversify its caseload in Ian Fusselman. Fusselman, who’d been a cadet in the Civil Air Patrol and first flew a plane solo at 16 years old, had spent his early years in the legal field clerking for a complex litigation firm which specialized in representing victim of catastrophic aviation and automobile accidents. Upon graduation, he joined a Los Angeles defense firm, and found himself representing the target defendant in the litigation that arose from folk singer John Denver’s fatal airplane crash. He uses his expertise in aviation law as one branch of a comprehensive practice that also includes catastrophic personal injury cases, insurance litigation and construction litigation. To date, in his 8 years with the firm, he’s helped the team at Thorsnes Bartolotta McGuire to recover more than $100 Million for clients. Fusselman became the firm’s fifth partner in 2012.
• Outstanding Trial Lawyer, County of San Diego v. Rancho de la Fuente: 1991 • Outstanding Trial Lawyer, Fontanini v. City of San Diego: 1989 • Outstanding Trial Lawyer, Peake v. City of San Diego, et al.: 1988 • Outstanding Trial Lawyer, Arendsee v. San Diego Gas & Electric: 1981 » John F. McGuire, Jr. • Best Lawyers, Lawyer of the Year 2012 • 2010 Daniel T. Broderick Award for Civility, Integrity and Professionalism • 2009 Recognized as one of “San Diego’s Top Influentials” by the Daily Transcript • President, San Diego Chapter, American Board of Trial Attorneys • Best Lawyers In America, Personal Injury: 2006, 19992000, 1995, 1994, 1993, 1992, 1991, 1989, 1988, 1987 • Outstanding Trial Lawyer, La Jolla Village v. Donald Bren Co.: 1990 • Outstanding Trial Lawyer, Pacific Panorama Owners’ Association v. Jack H. Allen, et al: 1989 • Trial Lawyer of the Year, Baldwin et al v. Carlton Santee Corp.: 1983 • Outstanding Trial Lawyer, Baldwin et al v. Carlton Santee Corp.: 1982 » Kevin F. Quinn • Outstanding Trial Lawyer Award, Roberts v. Council: 2005 Consumer Attorneys of San Diego • American Board of Trial Advocates: 2004 • Trial Lawyer of the Year, Hildebrand v. Donaldson, Bonillas v. Kaiser, Pancoast v. LeWinn, M.D., Cooper v. Kaiser: 1998 » Karen Frostrom • 2008 Outstanding Trial Lawyer Award State of California v. Anderprises, Inc. • 2007 Outstanding Trial Lawyer Award Sarka Southern, Ph.D v. Regents of the University of California
EXCELLENCE TRIAL LAWYERS • Business
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Attorney Journal | Volume 112, 2012
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G
ood time management does not consist of following numerous rules for handling emails, telephone calls, errands, crises, or the myriad assignments and distractions we face every day. Instead, it comes down to one fundamental rule: Do everything now that you now know you have to do. This may sound like mumbo jumbo or a fortune cookie message, but it is actually quite simple, relevant, and potentially life changing.
The Key to Time Management— and Achieving Work/Life Balance by Gary L. Sasso
Gary Sasso represents business clients in securities fraud and consumer fraud class actions and other complex litigation at the trial and appellate level, in the financial services industry, energy sector, products manufacturing industry, and services sector. Mr. Sasso has tried cases in the areas of securities fraud, business contracts, products liability, professional malpractice, employment discrimination and termination, eminent domain, bankruptcy, construction, administrative law, and land use in Florida, Maryland, Pennsylvania, and Virginia.
What does it mean? At any given time, we can list many things we know at that time we have to do. Some of these tasks have imminent deadlines, while others have seemingly distant ones (several days, weeks, or even months away). Most people plan formally or intuitively to start and complete these tasks at or around the time they are “due,” i.e., close to the actual deadline. This is a formula for disaster. Why? Because what we know about the future at any given moment will be overtaken in the coming days, weeks, and months by other events we cannot foresee. Deadlines may be pushed up, and more and more tasks—and opportunities—will arise between the current day and our deadlines. So if on any given day, we calendar everything we then know we have to do, and plan to start and complete those tasks only as we approach their deadlines, we risk lacking sufficient time to finish those tasks due to the emergence of intervening events. Waiting to tackle assignments presents another problem, too. Because none of us can fully appreciate the scope of any task until we start it, we almost always fail to appreciate certain of its aspects. As a result, we typically underestimate the complexity of what we must do and the time required to do it well. Therefore, when we plan to start an assignment right before the deadline, we risk not allowing ourselves enough time for preparation, care, reflection, refinement, revision, and follow-up. How do we cope with these challenges? Within reason, and with some appreciation of priorities, we must start and substantially complete right away everything we know at any given time we will have to complete eventually. Obviously, this requires some ranking of tasks to address those that simply cannot wait (e.g., true emergencies or fielding calls or emails requiring an immediate response). But subject to addressing our most pressing obligations, we must strive to start now—and make serious headway on—everything we know we have to do, even those matters with more distant deadlines. There are corollaries to this rule. Within reason, it requires us to work “overtime” on projects that do not have imminent deadlines. I often work evenings and weekends to start, and substantially complete, tasks that are not due for many weeks or
even months. This helps me identify the contours of the project and allows me sufficient time to conduct any necessary follow-up. Importantly, it allows me to reflect on projects while they sit. I am also able to circulate my work or thoughts to others involved, giving them plenty of time to provide meaningful input at their convenience. This process immeasurably enhances the quality of my work, almost always ensures that I get it done “early,” and, most important, virtually eliminates stress or the crises that often occur when we are confronted with true deadlines. Does this mean we must work slavishly without reprieve day in and day out? Actually, it means just the opposite. If we stay ahead of our work, we can integrate into our schedules time for ourselves, our families, and our friends. We are less likely, however, to squander time that we should use productively on our work or more purposefully in our personal lives. We are also less likely to experience guilt or anxiety when we do choose to take time for ourselves, families, or friends. To manage the thousands of daily chores and interruptions that cross our desks, we simply apply the same rule to everything we do. This means we let nothing wait. Within reason, we must constantly move through emails, phone calls, and other assignments to ensure we are always on top of them. Obviously, some work requires concentration, and we shouldn’t interrupt it by checking email every 30 seconds. And sometimes we simply can’t, as when we are in a meeting, at a hearing, or driving. But we should check in when we reach logical break points. If our day gets consumed by the urgent, we need to work late to deal with the important, even when no actual deadlines loom. This keeps us from pushing those projects off to the eve of their deadlines, compromising the quality of the most important things on our calendars. When we are personally swamped with one project (e.g., a trial or closing), delegation comes into play. Even when we can’t personally move the ball forward on projects we know we have to address, we can task someone else with doing so, making sure they understand they must approach the project at the earliest possible time, too, and not on the eve of its deadline. I’m convinced following this rule is the only truly effective means to achieve work/life balance. Doing so gives you control over your life in a way that nothing else can. You will always be ahead of your work. So if you plan to work an evening or weekend to start or complete something that is not actually due for many days, weeks, or even months, and you would like to take that time off instead for something important to you—for example, to see a play, spend time with your loved ones, visit friends, read a book, exercise, or pursue a hobby—you can “give yourself the night off.” But if you have waited until the eve of a true deadline to complete the assignment, you’re stuck. You have to forfeit your family or personal time because you’ve given yourself no flexibility. If you are always working against continual deadlines, you will always be out of balance in your personal life. Conversely, when
you stay ahead of your work, you are truly working for yourself on your own terms. When you allow your life to be controlled by imminent deadlines, you are always working for somebody else. That is oppressive, and you will resent it over time. This leads to a feeling that you lack work/life balance. Occasionally, of course, we all face true emergencies. But we rarely resent those. They are often challenging in a positive way, and managing them can be very rewarding. But we are able to plunge into them aggressively and effectively, without imperiling other obligations, only if we have other matters under control. Emergencies we create through our own procrastination, by contrast, must be avoided. There is a much greater risk that these “faux” emergencies will arise frequently and become a way of life, creating needless stress and personal tradeoffs. Finally, if you follow this rule, you will always be free to jump on unexpected professional opportunities. If your work is under control, you can leave it for awhile to pitch a new client or handle an exciting piece of work on a short fuse. I am not alone in advocating this rule. Abraham Lincoln once said: “Leave nothing for tomorrow which can be done today.” Well said, Mr. President. n
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4
Factors THAT DETERMINE
BUYER BEHAVIOR by Tom Trush
Apple is often seen as the poster child for business brilliance. The company rarely makes a wrong move. Major media devotes extensive coverage to every new product. And Apple fans are arguably the most loyal of any brand in the business world. That’s why it’s interesting to see Apple’s response to actions from what some see as the company’s primary competition in the smartphone market -- Samsung. From a marketing perspective, both sides know their audiences and target them well. This is a major difference from many business owners and entrepreneurs who mistakenly market as if anyone with a wallet is a valid prospect. In one of its latest commercials, Samsung, for example, seeks to push away the statusseeking crowd often associated with Apple products. In fact, the company blatantly alienates a huge audience. Is this a smart move? Well, I’m not a fan of attack tactics. But I understand the reasoning behind Samsung’s strategy. The company’s marketing staff recognizes that many of their prospects see themselves among an anti-Apple crowd. Now, I’m not here to decide whether or not Samsung’s tactics sell more smartphones. Instead, the lesson worth noting from both companies is the importance of who you target with your marketing. Keep in mind, prospects buy products and services for four basic reasons -- they either need, want, wish or desire what you offer. For example, a prospect may buy a criminal defense attorney’s services because he needs help after getting arrested for a violent
crime. He may buy a Toyota Prius because wants to make a strong statement about his environmental beliefs. He may buy a larger house because he wishes to “keep up with the Joneses.” Or he may buy a highpowered speed boat because he desires the attention it attracts while skimming across the lake. As you can see, there’s a purpose for every purchase. And it’s that purpose the drives the sale — not the product or service. So what motivates your prospects to take action? What’s their biggest desire? What problems or frustrations keep your prospect from achieving this outcome? Once you incorporate the reasons behind people’s purchases into your marketing, you increase the odds of getting greater responses. n
Tom Trush is a Phoenix-based direct-response copywriter who helps business owners craft lead-capturing marketing materials. He is the author of “The ‘You’ Effect: How to Transform Ego-Based Marketing Into Captivating Messages That Create Customers” and “The Reluctant Writer’s Guide to Creating Powerful Marketing Materials: 61 Easy Ideas to Attract Attention and Get More Customers.” More of his educational articles, videos and expert interviews are available on his website at writewaysolutions.com.
Attorney Journal | Volume 112, 2012
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Controlling Witnesses
On Direct and Cross by Ben Rubinowitz and Evan Torgan
i
n virtually any case you try, you will be confronted with the uncontrollable witness. Unfortunately, an out-of control witness can destroy a case. Your job is to prevent this from occurring. There are many ways to deal with the out-of-control witness, but the starting point is to listen to the witness and to pay attention to each answer. As attorneys, we are very good at speaking to people, giving advice and pontificating, but often not so adept at listening to what people have to say. During a trial, although oratorical skills are important, good listening skills are critical. Moreover, although most trial attorneys are worried about controlling the adverse witness, controlling their own witness is just as important.
Direct Examination
of transition, are permissible.
Most attorneys, while proud of their cross-examination skills, neglect the required devotion to artful direct examination. The first step to control on direct examination is to understand the parameters. While control is paramount, understanding that direct examination must be generally conducted in a nonleading format is crucial. Most leading questions will draw objections, so take control of your direct by utilizing questions that elicit narrative responses. Questions that begin with words such as who, what, where, when, how and why should always elicit narrative responses. Therefore, most questions during direct examination should begin with such words. Here is an example: Q: What is your name? Q: Where do you live? Q: How long have you lived there? Q: Who else lives there? Q: When did they move in with you? Q: Why did you move there?
Q: I direct your attention to June 12, 2010, at approximately 6 o’clock in the evening, and I ask you: Where were you at that time? Q: Did there come a time that the police arrived? Q: Directing your attention to the bottom of the page titled nursing notes, whose signature appears there?
To continue to exercise control, you need to use transitional phrases to direct the witness into a new area of inquiry. Such transitional phrases are leading in nature, but because they include words 26
Attorney Journal | Volume 112, 2012
Following up answers with words that cajole the witness to respond also help you exercise control over the witness: Q: What happened next? Q: Continue. Q: Proceed. Q: Go on. Q: Describe. Of course, even with artful questioning and thorough preparation, you can run into an unresponsive and out-of-control witness. Take your client, for example, who has never testified in court before. Nervousness and adrenaline can take control of the situation, and the direct can end up going something like this: Q: Where do you live? A: I have lived there for 20 years. Q: How many children do you have?
A: I love them. They are all wonderful. Q: Did there come a time that an ambulance arrived? A: I was in agony, writhing in pain on the ground. To prevent these types of answers from destroying the direct examination, you must listen to and scrutinize the responses. Many lawyers, even on direct examination, are tied to their notes, preparing for what they will ask next. Conducting a direct is not the time to be tied to your notes. On the contrary, you must pay close attention to your witness’ answers. Q: Where did you feel the pain? A: It was the worst pain I have ever felt in my life. I couldn’t believe it. I couldn’t even breathe and my life flashed … Q: I understand it was very bad, but I’m asking specifically where you felt that pain. A: It was in my lower back. The same type of control should be exercised with the expert witnesses you call as well. Many times, expert witnesses will ramble on after first being responsive
a yes or no answer. When asking a leading question, state a fact and get the witness to agree with it. Q: You are the defendant in this case, true? Q: On the day of this incident you were driving a truck, correct? Q: That truck was quite heavy, right? Q: As a matter of fact, it weighed over 32,000 pounds, didn’t it?
to your questions. It is important to rein them in. For example, take the following approach when a physician rambles on beyond the scope of the question: Q: Do you have an opinion, to a reasonable degree of medical certainty, as to whether or not these injuries are permanent? A: Yes. They are permanent, and they will prevent her from working in the future and will require a lifetime of medical care. Moreover, because the disc is impinging on the spinal cord it will… Q: Let me stop you there, and we will get to the rest of those issues later. First of all, why do you say they are permanent? Q: In addition to finding the injury is a permanent one, do you have an opinion, to a reasonable degree of medical certainty, as to whether or not she will ever be able to return to work? Q: What is the basis for your opinion? A: She can’t work because her herniated disc prevents her from sitting. However,
she will require a lifetime of physical therapy— Q: Permit me to interrupt you for a second. Why does that herniated disc prevent her from sitting down to work? With an expert, as with your client or any other witness, you can exercise control while staying polite and keeping the flow of the examination going smoothly. Even though your witnesses on direct are generally friendly and cooperative, it is still an important skill to be able to maintain control over them.
Cross-Examination Although maintaining control is important on direct examination, it is critical on cross. Witnesses who are adverse generally have an axe to grind and can hurt your case if given the opportunity. The key is to never allow them the opportunity. Just as nonleading questions are the rule on direct, leading questions define cross. Leading questions are those that contain within them the answer, questions that suggest the answer, and questions that call for
When cross-examining a witness, you are basically making a summation to the jury, and getting the witness to agree with you. There is not much wiggle room when the questions are leading, tight and suggestive. However, it is just as important to pay attention to the witness’ answers and not be tied to a script. You must be able to distinguish answers that are responsive, answers that are unresponsive, and answers that are in fact responsive, yet add gratuitous information. Q: You are the defendant in this case, true? A: Yes, but someone served me in the middle of the night. Q: On the day of the incident you were driving a truck, correct? A: On the day of the accident it was raining real hard and impossible to see. Q: That truck was heavy, wasn’t it? A: Not as heavy as a lot of rigs on the road that day. Q: As a matter of fact, that truck weighed over 32,000 pounds, true? A: I didn’t have a scale. You can follow your script, ignore the answers, continue with your notes and lose the case. A better way, however, would be to pay attention to the witness and demand responsive answers. Here is one way that examination could go: Q: You are the defendant in this case, true? A: Yes, but someone served me in the middle of the night. Q: I didn’t ask you when you were Attorney Journal | Volume 112, 2012
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served, but there is in fact no question that you were served, correct? A: Yes. Q: And you are the defendant in this case, true? A: True Q: On the day of the accident, you were driving a truck, correct? A: On the day of the accident it was raining real hard and impossible to see. Q: Sir, my question was simple: on the day of the accident, you were driving a truck, correct? A: Correct. Q: And because it was raining very hard, you had to exercise caution, true? A: True. Q: Because when it rains hard, it makes visibility more difficult, true? Q: And as a result you have to be even more careful than usual, right? A: Right. Q: And you, Sir, as a professional truck driver, had an obligation to keep a proper lookout, correct? A: Correct. Q: And to maintain safe distance from the vehicle in front of you, true? A: True. Q: That truck was heavy, wasn’t it? A: Not as heavy as a lot of rigs on the road. Q: I’m not asking you about other rigs, Sir, I am specifically asking about yours: You’d agree with me that the truck you were driving was heavy? A: What do you mean by heavy? Q: Sir, your truck weighed over 32,000 pounds, true? A: I didn’t have a scale. Q: But you did have an owner’s manual, didn’t you? A: Yes.
Q: And you also had a side door, right? A: Right. Q: And both the owner’s manual and the side door indicated that the truck weighed 32,700 pounds, correct? A: Yes. Q: And you would admit, wouldn’t you, that the front of your truck struck the back of my client’s vehicle? A: Yes. Q: No doubt about it, right? A: Right. There are other ways to procure responsive answers on cross examination. One way is to simply repeat the same question over and over again until you get a responsive answer Q: Doctor, you would agree with me that my client has a scar on his face, true? A: It is not very big. Q: Doctor, you would agree with me that my client has a scar on his face, true? A: I can hardly see it. Q: Doctor, you could agree that my client has a scar on his face? A: Yes. Another way is to add preambles to your questions such as “that wasn’t my question, Sir”; “my question was simple”; or “Sir, that is all well and good, but mine was a different question”: Q: Dr. Smith, your examination of my client took less than 15 minutes, true? A: My examination was thorough, and I did all I had to do. Q: Sir, that wasn’t my question. My question was specific: Your examination of my client took less than 15 minutes, true? A: It took close to 15 minutes.
Q: And by close to 15 minutes you mean less than 15 minutes, correct? A: Yes. Yet another way to get responsive answers is by getting the court’s assistance. However, this should be done sparingly. This should only be done after a pattern of abuse by the witness, and only if you know you will get assistance from the court. Q: Dr. Smith, you would agree that the report of the radiologist in evidence shows a herniated disc at L4-L5, right? A: Yes it does, but it also shows a severely degenerated disc with arthritic changes that took years to develop. Q: My question was, the report shows a herniated disc, true? A: It does, but I’m telling you it is not causally related to the accident. It is from years of degeneration. Q: Sir, the radiologist called it a herniated disc at L4-L5, true? A: Yes but it has nothing to do with the accident. Q: Your honor, I move to strike everything the doctor said after “yes” as unresponsive. The court: Granted. Controlling witnesses is a very important part of trial practice: during direct examination, by asking nonleading, open-ended questions that call for narrative responses, sprinkled with appropriate uses of transitional questions; during cross-examination, by asking tight, leading questions that contain within them the answer and simply call for agreement by the witness. Most importantly, on both direct and cross, pay careful attention to the answers before thinking of your next question, and always obtain responsive answers. n
Ben Rubunowitz is a partner at Gair, Conason, Steigman, Mackauf, Bloom & Rubinwitz and an adjunct professor at Hofstra University School of Law and Cardozo Law School. Evan Torgan is a member of Torgan & Cooper. They can be reached at speak2ben@aol.com and info@torgancooper.com. Richard Steigman, a partner at Gair, Gair, assisted in the preparation of this article.
28 Attorney Journal | Volume 112, 2012
Financial measures
that matter
Properly dimensioning individual financial and strategic contributions to the success of any professional services firm requires assessment of more than simple personal fee production. by Linda Julian Linda Julian is Managing Partner of Julian Midwinter & Associates and author of “The passionate professional – creating value, success, prosperity,” which is packed with practical business development advice for lawyers.
A
bsolutely, measuring personal billings matters: we mustn’t lose sight of accountability for direct, current contribution to revenues and financial health of the firm. Just as assessment of the strategic health of the professional service firm must take account of factors beyond financial performance in the current period, so individual contribution to fee earning needs to take account of more than mere personal fees rendered this month, last month, and this year. For some firms and practice groups, two or three simple metrics are sufficient. But in many areas, a wider range of contributions are worth measuring. All of these are worth considering and will take you a long way to gaining a comprehensive picture of contributions to your firms’ fees. Current year personal fees: • a ctual personal fees—which is the thing which is most likely to be accurately measured right now • f ees billed subsequently uncollectible and/or written off - which reflects poor relationship management, inadequate project control, misunderstandings and communication failures, client disappointment, deficient billing practices • personal fees trend line: - are you going in the right direction ? - is this an impressive performance coming off a low base ? • current charge rates • standard, achieved •n umber of chargeable hours to produce fees and current realisation rate
- are you going up the value curve, or not ? •n umber of annual working hours to produce fees—that is, the true effective realisation rate - what is it taking in business development, client relationship management, practice administration, and people management to produce these fees ? Current year work group fees: • actual work group fees—total fees for all team members • work group fees trend line • work group realisation rate—that value curve thing again ! • current realisation rate • true effective realisation rate. Approximation for real gross profit (before partner returns, but after taking into account all other production costs including financing) for fees, measured for: • individual professional • workgroup • practice group • firm • trend lines for each of these. So often, we find that professional service firms love what’s simple. However, a single simple metric is a “rear vision mirror” take on what’s going on with an individual fee earner or workgroup, reflecting the business development effectiveness of the past. Looking at actual fee production in isolation: • hides or disguises important realities
• encourages short-term focus on the single behaviour being measured (fee production now) • fails to track the behaviours and strategies which correlate with future financial and strategic success. At its worst, relying on the traditional single fee production measure: • breeds cynicism—“the firm says it wants me to go and spend time getting business, and to spread it round the firm, and to leverage our relationships for the firm as a whole, but the only thing it measures and the highest medal of honour goes to the highest personal fee earner “ • encourages focus only on making one’s own fee target • rewards client-hugging • may be a disincentive to fee sharing and leveraging relationships for wide benefit • encourages short-termism • discourages medium and long-term investment • may not value business development efforts and success of non-partner lawyers as they aspire to progression. Obtaining an assessment of financial contribution to the firm is difficult, especially as size increases. It’s healthy to emphasise “now”—we have this year’s bills to pay and need to be attractive and financially healthy to realise future potential. But measure widely rather than narrowly to track what really matters to the finances of the firm. n Attorney Journal | Volume 112, 2012
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