Volume 115, 2013 • $6.95
Where the Jobs Are
Charles Volkert The Rainmaker’s Mindset for Associates
David King Keller
Second-Language Skills Increasingly Important in Legal Field
Preparing for Successful Mediation
Steven H. Kruis The Management Imperative
MEDIATOR OF THE MONTH
Attorney of the Month
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TABLE OF CONTENTS features MEDIATOR OF THE MONTH
6 Ken Rose by Jennifer Hadley
10 The Rainmaker’s Mindset for Associates
Many Associates say, “I Want to Succeed and I Understand the Need for Business Development, But Where Do I Find the Time?”
by David King Keller
12 COMMUNITYnews 15 Where the Jobs Are
EXECUTIVE PUBLISHER Brian Topor
Litigation to Offer Greatest Opportunities in 2013; Challenges Finding Top Talent Reported.
EDITOR Nancy Deyo
by Charles Volkert
CREATIVE SERVICES Skidmutro Creative + Layout
ATTORNEY OF THE MONTH
16 James Iagmin
CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Charles Volkert David King Keller Diane Domeyer Gerry Riskin Steven H. Kruis Jennifer Hadley Karen Gorden 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.
by Jennifer Hadley
22 Russell Kohn by Jennifer Hadley
24 The Management Imperative
A Leader Can be Forgiven for Doing the Wrong Thing on Occasion But What About Failing to Manage at All? by Gerry Riskin
26 Second-Language Skills Increasingly Important in Legal Field The Value of Bilingual Abilities. by Diane Domeyer
28 Preparing for Successful Mediation Learn Ways to Manage Your Client’s Expectations and Develop an Effective Strategy that Will Enhance the Likelihood of a Successful Mediation. by Steven H. Kruis
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 2013 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA
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Ken Rose’s Move To Mediation
Natural PROGRESSION A
By Jennifer Hadley
“I’m at a point in my legal career where I can be very effective at getting parties, particularly in employment disputes, to settle cases with a win-win result,”says Ken
Rose, principal of Rose Mediation, which he officially launched in November of 2012. Certainly after nearly four decades of representing both companies and employees in employment law disputes, there are few San Diego-based attorneys with his sheer breadth of expertise in the field. Moreover, there are still fewer who can claim, in addition to 36 years of experience, the renown Rose has earned over his career. As an AV-Preeminent rated attorney, Rose has been recognized by American Lawyer Media as a Top Rated Lawyer in Labor & Employment and as an outstanding attorney in the International Who’s Who of Management Labour & Employment Lawyers. He’s been included in San Diego Super Lawyers, and based on peer voting for listing in the Guide to the World’s Leading Labour and Employment Lawyers, was the leading nominee from California and among the top five in the United States. But what many don’t know is that in addition to serving as plaintiffs’ and defense counsel in employment and labor disputes, Rose has been a practicing mediator for the past few years. To him, the decision to make mediation the focus of his career moving forward is just a natural progression and the best use of his vast legal experience and expertise. 6
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“As part of my law firm’s services, I’ve always done some ADR as a mediator and arbitrator. I’m now in the process of growing my mediation practice. Attorneys and corporate officials who know me, know me as an advocate representing clients in employment matters,” Rose says. “I’ve represented both companies and employees in legal disputes that have covered the gamut of factual scenarios and employment law issues,” he adds. Those disputes have included many jury trials, and even the opportunity to cross-examine the US Postmaster General, as a young lawyer representing plaintiffs in a law suit to enforce a settlement agreement entered into with the US Postal Service in a wage law class action.
Rose became interested in the law as a young boy growing up in New York City. “My dad was a detective with the New York City Police Department. He frequently testified in criminal court. He’d talk with me about cases he worked on, including his regard for the lawyers from the DA’s office and the criminal defense lawyers,” Rose recalls. “Had my dad not grown up during the Great Depression and been given the same educational opportunities my parents made sure were available for me, he could have been a sensational lawyer.” Rose also remembers looking up to a cousin who was an attorney. “He was revered by our family and I admired the assistance that he gave to all of us whenever we had legal questions,” Rose says. With the seeds planted for a career in law at an early age, Rose’s interest was strengthened while pursuing his college degree. “I studied labor relations in college at the Cornell University School of Industrial and Labor Relations. It’s a very interesting field and involves dealing with people. It was a natural progression that when I attended law school I chose
After litigating employment law cases for four decades, Ken Rose puts his extensive labor and employment expertise to work helping businesses and employees resolve their disputes.
OF THE MONTH
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“I get right to the root of the issues and the practical realties and uncertainties of hard fought litigation,”
to take labor and employment law courses and became a Law Clerk for the National Labor Relations Board, as I wanted to specialize in that field.” After earning his J.D. degree at George Washington University, Rose immediately went to work. From 1976-1984, Rose worked with law firms in Washington, D.C specializing in union-management labor law and employee benefits law. In 1985, after receiving a job offer from the Procopio firm in San Diego, Rose and his wife headed west to San Diego, where Rose would start the labor and employment law practice at Procopio. After a decade, he joined Littler Mendelson, the largest national boutique labor and employment law firm, before launching The Rose Group, APLC in 2006. As a labor and employment specialist, Rose’s clients have spanned the spectrum, from businesses of all sizes and industries that needed employment representation, to executive level employees who required legal advice, particularly with respect to employment contracts and severance pay agreements. Eventually, due to his expertise, he also cultivated a following among attorney colleagues seeking a seasoned employment law specialist to mediate their clients’ disputes and litigation.
A Segue Into Solutions
Rose’s interest in helping to resolve employer/employee disputes began to grow as he found himself being called upon more and more frequently by fellow attorneys who needed his expertise. “I get right to the root of the issues and the practical realties and uncertainties of hard fought litigation,” Rose says. “For example, to a greater extent than companies often want to acknowledge, defending employment lawsuits is a no win predicament for them. Even prevailing at trial can be a hollow victory; given that the company will have incurred substantial legal fees that rarely can be recovered. Skilled employment defense lawyers do not come cheap. Conversely, I will address
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what I see as unrealistic expectations held by the employee.” I am not hesitant to tactically point out to employees, in their counsel’s presence, that although they may feel wronged, few cases are a slam dunk,” he says. “I have actually gotten some “Thank You’s for explaining to their clients’ what their attorney was struggling to get them to understand,” he says of feedback he receives from employee-side attorneys. There’s little doubt that Rose’s ability to assess employment disputes quickly, and address the real issues directly, stem from his breadth of in the trenches experience. “I’ve seen it all, and understand the dynamics of employment litigation. If I believe there are holes in your case or in your defense, I point out what they are,” he adds. Continuing, he says, “I’ve been in jury trials, I understand the leverage each party has, and the financial and personal costs and loss of productive work time caused by prolonged litigation. Because I’ve often been there myself, I can approach disputes from the standpoint of ‘You could win, but you could lose, and you could lose even if you win. Isn’t it better to make best efforts to resolve the case now?’” he adds. To that end, as Rose began to see that mediation would eventually comprise a larger portion of his practice, he took logical steps to strengthen his skills and experience in the field. He was asked to become a mediator for the California Department of Fair Housing & Employment, and continues in that role today. He also became a Judge Pro Tem for the California Superior Court several years ago, serving in the Small Claims Court and as a Settlement Conference Judge. “I admire anyone who takes the time to come to court,” he says of the four to six small claims cases he hears each month. “The plaintiffs and defendants have prepared as best as they can, but they are not lawyers, so I have to listen very carefully to what they say. It’s helped me improve my listening skills, which is obviously good for my mediation practice as well.
For Rose, the path towards a mediation practice just made sense. “I’ve done enough mediations to know that I’m good at resolving cases and I relish the challenges each new dispute brings. Now is an opportune time to transition further into alternative dispute resolution. The demand for good mediators continues to increase due to severe court budget cutbacks, costly discovery, crowded court dockets, and so on,” he says. Rose’s specialized knowledge of employment and labor law makes him a natural selection for counsel that have elected to mediate an employment dispute. Moreover, Rose looks forward to offering his employment law dispute resolution services in two innovative areas. First, Rose has plans in place to assist corporations interested in pre-litigation mediation as an option for resolving non-frivolous employee complaints. “I will be working with corporations to encourage them to consider bringing in an independent neutral mediator when faced with serious employee complaints that if unresolved may end up in litigation. Once a lawsuit is filed, each stage beginning with commencement of discovery adds substantial legal fees, and I believe mediation early on is a viable, cost-effective option for employers and employees,” he says. Secondly, Rose, already well-known globally for his international employment law expertise, is taking his mediation services across continents. “I’ve developed a specialization in international employment law. I plan to now make myself available to mediate cross-border employment disputes that involve expat employees who either work in the US for non-US based employers, or work overseas for a US based employer,” he explains. Although Rose will focus attention on his developing mediation practice, he isn’t completely switching gears. He will continue practicing employment law, representing businesses and executives, conducting workplace investigations, and making himself available as an arbitrator. With decades of experience in his niche field, Rose has earned himself a position as a California, US, and global expert on matters labor- and employment-related. As he turns his eyes towards the future, it seems clear that a focus on mediation was bound to be the next natural progression in his accomplished legal career. n Contact: Ken Rose | The Rose Group, APLC | Rose Mediation www.rosegroup.us | www.rosemediation.us www.linkedin.com/in/rosegroup | email@example.com 619.822.1088
Evolution of A Specialization
» LEGAL CAREER
• T he Rose Group, APLC, San Diego, CA and Washington, D.C.2006-present • Littler Mendelson, San Diego, CA 1996-2006 • Procopio Cory Hargreaves and Savitch, San Diego, CA 1985-1996 • Private practice in Washington, D.C. 1976-1984 • National Labor Relations Board (Law Clerk), Washington, D.C. 1975-1976
• K en received his law degree from the George Washington University Law School in 1976 and a B.S. from the Cornell University School of Industrial and Labor Relations in 1972.
» LEGAL CAREER HIGHLIGHTS
• A s a young lawyer cross-examined the US Postmaster General in a lawsuit to enforce a settlement agreement entered into with the US Postal Service in a wage law class action • Successfully defended a pregnancy discrimination lawsuit brought by the federal Equal Employment Opportunity Commission and obtained an award of attorneys fees from trial judge • Successfully defended a local high tech company in a employment disability discrimination lawsuit with jury verdict issued within 30 minutes after close of trial • Co-counsel for Plaintiff in a wrongful termination lawsuit against a Fortune 50 Company resulting in a jury verdict of $9.5 million
• M artindale-Hubbell’s AV-Preeminent rating • Guide to the World’s Leading Labor and Employment Lawyers • Top Rated Lawyer in Labor & Employment, American Lawyer Media • Southern California’s Top Rated Lawyers • The International Who’s Who of Management Labour & Employment Lawyers and Business Lawyers • Who’s Who Legal • San Diego Super Lawyers
• Author of Lawful Hiring: A Primer for California Employers • Co-author, “U.S Employment and Labor Law” chapter, International Handbook on Contracts and Employment, published by the International Bar Association
Many Associates say, “I want to succeed and I understand the need for business development, but where do I find the time?” Of course, you’re busy. So, too, are all Rainmakers. Like anything important, you must set aside time to do it. But how do you do that when everything is a high priority? The Rainmaker never “waits” to have the time, because that will never happen. Rainmakers know that time is not given to you—you have to take command of it.
“The best time to do business development is when you’re busy.” — Paul Kawakami, Partner, Sedgwick Detert Moran & Arnold LLP
The Rainmaker’s Mindset for Associates by David Keller David King Keller is the award-winning author of 100 Ways to Grow a Thriving Law Practice and the ABA best seller, The Associate as Rainmaker: Building Your Business Brain. Keller is an Ethics M/CLE instructor and delivers business development training within an Ethics CLE titled Ethical Business Development Strategies. This Ethics MCLE is accepted by State Bars, law firms, Bar associations and ABA annual conference CLE seminars. David is a respected keynote speaker and trainer on strategies for increasing firm revenue, including The Neuroscience of Quickly Going From Stranger To Trusted Adviser. Contact David for a free copy of his Social Media For Lawyers article or a review copy of his two law firm business development books at firstname.lastname@example.org or call him at (415) 2890544, cell: (415) 444-6795.
One reason for statements like Attorney Paul Kawakami’s is the belief that when business is good and keeping you fully occupied, you’re confident, feeling successful, you have winner’s eye contact, and winner’s posture, and winner’s tone in your voice, and this confidence will be obvious to the potential clients. Corporate management experience has proven that busy people, in many cases, are well organized and, given a high priority task, will find a way to work it in and get it done. Do you set aside time for a Managing Partner’s request? Of course you do. If you’re assigned a meeting with a VIP client of the firm, you will you find time to make it to that appointment, won’t you? So, think of your Business Development Time with the same level of priority as a meeting with a VIP client of the firm that has been assigned to you. Time may not be the only issue holding someone back from tackling business development. Just using the word “tackling” with all its conscious and unconscious football images, pain, hard work and required physical strength could actually chip away at enthusiasm and provide unconscious support for procrastination. As individuals and managers, we need to pay close attention to how we phrase an initiative. How we “construe” the elements of a task can cause procrastination. Business development needs to be thought of as several separate, easy to accomplish tasks, with positive nomenclature attached.
“If an associate says, ‘I don’t have time for business development,’ I tell him or her to make the time. It’s the most important part of your week.” — Terry Gaffney, Partner, Eckert Seamans, Washington DC
Business Development Time Slots Every week, you must set aside time for business development. However, business development might come easier to you if you simply think about your time as conducting a meeting. One option is not to put your primary attention on the necessity of business development, or any kind of quotas you might have. Rather, if you go into these weekly time slots with a genuine passion for the law and with the mindset that this is a chance to help someone and share your passion, you’re more likely to rise to the opportunity. Think about those business development “meeting” time slots as a chance to expand the universe of people who get to experience your excitement for the law.
Creating Your Business Development Time Slots To solidify your weekly business development commitment, open your electronic calendar and pick a weekly time slot. Then hit recurrence “weekly.” Locking in a time slot for the next year is absolutely essential. Now you have 52 meetings calendared specifically for rainmaking. How long your business development meeting time slot should last depends on how much experience you have and how daunting setting aside that time slot feels to you. One approach would be to start very, very small and build from there. Maybe, if you are feeling extremely overwhelmed by the idea of adding just one more thing, then set aside just one to five minutes for those first few scheduled business development activity meetings. Others can use the following schedule as a guideline knowing that the size of the firm will influence how soon and how often you’ll need to conduct business development activities:
within 12 weeks; then grow to 120 minutes within 24 weeks. Add more time as time goes on. Fourth year Associates: • If new to business development, start out at 45 minutes per week; grow to 90 minutes within 8 weeks, 120 minutes within 16 weeks. Add more time as time goes on. Fifth year Associates and up: • If new to business development, start out at 45 minutes per week; grow to 90 minutes within 4 weeks, 120 minutes within 8 weeks. Increase as time goes on.
“I tell the Associates to set aside 2 hours of business development a week. Maybe it’s Monday 9a.m. to 11a.m, or it’s a half an hour during lunch break every day. But make the commitment and keep it.” — Terry Gaffney, Partner, Eckert Seamans, Washington DC
First year Associates: • If new to business development, “BD” for short, start easy with short BD activity “meetings,” just 10 minutes to build your business development muscles. • Find a 10 minute business development time slot in next week’s calendar. (Don’t worry yet what, exactly, you’ll be doing with that time; just make sure the time is set aside. BD activity details will follow.) • Click on “Recurrence” and click on “Every Week.” • Every 4 weeks, add 10 minutes to meeting time • Over time, grow business development meeting length to 45 minutes or more Second year Associates: • If new to business development, start out at 20 minutes per week minimum; grow to 45 minutes within 6 weeks, and then grow to 90 minutes or more. Third year Associates: • If new to business development, start out at 45 minutes per week; grow to 60 minutes within 8 weeks, 90 minutes
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COMMUNITY news nFish & Richardson has been named “Intellectual Property Practice Group of the Year” and “Life Sciences Practice Group of the Year” by Law360 for the size, complexity, and significance of its 2012 litigation wins. This is a particularly prestigious honor since only five firms – out of hundreds of nominations – are selected in each practice area. Fish was named “Life Sciences JUANITA BROOKS Practice Group of the Year” for its impressive wins for Mayo Clinic, W.L. Gore, Cephalon, Inc., Allergan, Inc., and Fresenius Medical Care Holdings, Inc. For Cephalon, Fish won an important Federal Circuit ruling that clarified parties’ respective burdens of proof when a defendant seeks to invalidate a patent. This issue, seen in almost every Hatch-Waxman pharmaceutical litigation, has now been resolved in branded pharmaceutical’s favor. Fish has 12 offices worldwide, including one in San Diego. Leading the firm’s life science litigation practice locally is Juanita Brooks, who was involved with several of the victories that Law360 highlighted. Brooks is recognized nationally for her superior litigation skills and winning record. She is considered a leader in the emerging area of Hatch-Waxman litigation. nMeagan E. Garland has joined Brown Law Group as a new associate. Ms. Garland comes to Brown after serving for more than six years as a litigation associate at Baker & McKenzie, LLP, San Diego, CA and New York, NY. Ms. Garland’s litigation practice focused on representing corporations and individuals in state and federal courts (criminal and civil) in a variety of MEAGAN E. GARLAND litigation matters. In 2005, Ms. Garland interned with the United Nations, Office of the Prosecutor, at the International Criminal Tribunal for the Former Yugoslavia in The Hague, Netherlands. She is affiliated with Inn of Court (Louis M. Welsh Inn). Other affiliations have included serving as the Founder and CoChair (2007) of Diverse Women’s Task Force of the Lawyer’s Club of San Diego; and as mentoring coordinator and board members of the Earl B. Gilliam Bar Association. Ms. Garland is the recipient of the Earl B. Gilliam Bar Association Award for Distinguished Service (2007) and the Pro Bono Service Award, Baker & McKenzie, San Diego (2006, 2007, and 2011). Ms. Garland earned her Juris Doctorate from Boston College Law School and her Bachelor of Arts, summa cum laude from Spelman College, Atlanta, GA.
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nSolomon Ward Seidenwurm & Smith, LLP is pleased to announce that Michael C. Cato has been elected a partner of the firm. Cato has practiced real estate and finance law in San Diego for over a decade. “We are delighted to add Michael as a partner,” said Michael Breslauer, Solomon Ward’s Managing Partner. “As a broad-based real estate and MICHAEL C. CATO finance lawyer, he will strengthen those components of our expanding transactional department for years to come.” Cato represents local and national real estate owners, developers and investors. He specializes in office, industrial, retail and multi-family projects. Prior to joining Solomon Ward as of counsel in 2011, Cato worked for over nine years with Latham & Watkins and Sheppard Mullin Richter & Hampton. “I am very excited for this opportunity,” Cato said. “At Solomon Ward, we are more than a great group of lawyers – we are entrepreneurs who strive to understand our clients’ businesses and to deliver excellent legal services with significant value. I look forward to building on Solomon Ward’s tradition and success as one of the best law firms in Southern California.” nRon Ball, the former city attorney of Carlsbad, has joined Best Best & Krieger LLP as an of counsel attorney. Ball, who retired from his Carlsbad position in December after 26 years, will practice in BB&K’s San Diego office where he will be a member of the firm’s municipal law practice group, one of the largest in California. Ball has an extensive background in legal issues that affect cities. RON BALL During his tenure in Carlsbad, Ball worked on several high-profile and cutting-edge legal matters, including the creation of California’s first financing district, the defense and implementation of the city’s growth management plan, the drafting of the city’s first development agreement for Legoland, the drafting of the second agreement for the proposed Carlsbad desalination plant, the largest of its kind in the United States, drafting and implementing changes to Carlsbad’s city charter and participating in proceedings. Ball is the California State Chair, International Municipal Lawyers’ Association. He is also a member and former director of the North County Bar Association of San Diego County, and a director and former president of the San Diego Stanford Club.
COMMUNITY news nA Los Angeles jury has awarded a young victim represented by Estey Bomberger a verdict of $23 million resulting from sexual abuse by his former elementary school teacher, Forrest Stobbe. The Los Angeles Unified School District must pay $6.9 million in damages for its failure to provide proper supervision. This is believed to be the largest verdict ever leveled against STEPHEN ESTEY LAUSD in a molestation case involving a single victim. In 2010, Stephen Estey argued a molestation-related case in San Jose, California that resulted in a $30 million verdict, the largest verdict in California history for a single person sex abuse case. The trial against LAUSD lasted 15 days in Los Angeles Superior Court. Estey had asked for a $25 million verdict at the time of trial. nThe Gomez Law Firm is proud to announce the addition of two new trial lawyers, Dave Fox and Stephanie Poli. Dave Fox is a trial attorney who focuses his practice on representing individuals who have suffered catastrophic personal injuries. Dave has successfully tried over a dozen cases to verdict, including both civil and criminal cases. Dave came to the DAVE FOX firm from the United States Attorney’s Office where he investigated and tried cases involving weapons trafficking, drug trafficking, robbery, fraud, assault, and public corruption. Notably, Dave prevailed in a high profile six week trial against corrupt United States Border Patrol agents found guilty of bribery and smuggling illegal aliens. Dave also worked at a top international law firm, STEPHANIE POLI Cooley LLP, where he represented individuals and companies in complex employment, business, and product liability disputes. Dave graduated from the University of San Diego School of Law with honors and served as a judicial law clerk for the Honorable Janis L. Sammartino in the United States District Court for the Southern District of California. Stephanie Poli is a trial attorney practicing in the Mass Torts Division with a strong interest in catastrophic injury and products liability. She graduated from the University of Arizona with a B.A., majoring in Psychology with a minor in Business Administration. Upon graduation, she began working as a legal assistant at an Arizona law firm before attending the University of California Hastings College of the Law. She participated in the Hastings Business Law Journal, Hastings’ Appellate Advocacy program, Moot Court courses, Hastings Trial Law Association, and Inter-Journal Writing Competition committee. She also devoted time to serving as a student legal advocate
nNicole Barvié has joined McCormick & Mitchell, APC. Ms. Barvié received her Bachelor’s Degree in Political Science from the University of Arizona in 2005. In her junior year, Ms. Barvié spent a semester in Madrid, Spain. Ms. Barvié is fluent in Spanish. Following her undergraduate studies, Ms. Barvié moved to San Francisco, before migrating south to NICOLE BARVIÉ San Diego to receive her Juris Doctor from California Western School of Law in 2011. During law school, Ms. Barvié was a member of the International Law Society and the Student Bar Association. Additionally, Ms. Barvié completed a clinical internship and post-bar clerkship at International Practice Group in San Diego. At McCormick and Mitchell, Ms. Barvié’s practice focuses on civil litigation. Ms. Barvié is admitted to practice law in California. Additionally, she is a member of the California Bar Association, the American Bar Association, San Diego La Raza Lawyers Association, and the San Diego County Bar Association. nSan Diego Volunteer Lawyer Program, Inc. (SDVLP), a nonprofit organization that provides free civil legal services to thousands of disadvantaged clients every year, will hold its seventh annual LAF-Off (Lawyers Are Funny) event on Thursday, March 21, 2013 at the House of Blues in downtown San Diego. In celebration of SDVLP’s 30th anniversary, this year’s competition will feature LAF-Off All Stars – some of the most popular, crowd-pleasing contestants from the six previous competitions. LAF-OFF not only raises money for SDVLP, it also proves that lawyers can be funny. The hilarious stand-up comedy show features members of the San Diego legal community showcasing their comedic talents by competing for the title of funniest attorney in town. Each contestant is given five minutes to perform their comedy routine. After the performances, three equally funny “judges,” along with the audience, determine who wins a year’s worth of bragging rights. LAF-Off will kick off with VIP and general cocktail receptions at 5:00 p.m., followed by the comedy competition at 6:00 p.m. VIP tickets are $100 each and general admission tickets are $60 each. Tickets are available on-line at www.lafoff. com. All proceeds from LAF-Off support the work of SDVLP.
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Attorney Journal | Volume 115, 2013
Attorney Journal | Volume 113, 2013
Where the Legal Jobs Are Litigation to Offer Greatest Opportunities in 2013; Challenges Finding Top Talent Reported By Charles Volkert Robert Half Legal is the legal staffing division of Robert Half International. The company provides law firms and corporate legal departments with highly skilled professionals, including lawyers, paralegals and legal support personnel, on a project and full-time basis. With North American and global locations, Robert Half Legal also offers managed review and e-discovery services. More information, including online job search services, can be found at www.roberthalflegal.com.
hich specialty areas are predicted to yield the most prospects for legal job seekers in the year ahead? Almost one-quarter (22 percent) of lawyers recently interviewed by Robert Half Legal expect litigation will generate the greatest number of job opportunities in 2013. General business/commercial law and healthcare ranked an equal second, with each practice area receiving 19 percent of the response. Legal professionals with expertise in high-demand practice areas may have employers vying for their attention: more than half (57 percent) of survey respondents cited at least some challenge in finding legal talent. The survey was developed by Robert Half Legal, a legal staffing firm specializing in lawyers, paralegals and other highly skilled legal professionals. It was conducted by an independent research firm and based on 200 telephone interviews with lawyers in the United States: 100 of the respondents are employed at law firms with 20 or more employees and 100 are employed at companies with 1,000 or more employees. All of the respondents have hiring authority within their organizations. Lawyers were asked, “Which one of the following practice areas, in your opinion, will offer the greatest number of job opportunities in 2013?” Their responses: Litigation................................................... 22% General business/commercial law......... 19% Healthcare................................................. 19% Labor and employment................................ 8% Bankruptcy/foreclosure................................ 8% Intellectual property..................................... 5%
Environmental law........................................ 2% International law........................................... 2% Other............................................................ 6% Don’t know/no answer................................. 9% Lawyers also were asked, “How challenging is it for your law firm/company to find skilled legal professionals today?” Their responses: Very challenging....................................... 12% Somewhat challenging............................ 45% Not challenging.......................................... 37% Not applicable/not looking........................... 5% Don’t know/no answer................................. 1% “As law firms expand their teams to meet client requests and enhance service offerings, competition for highly skilled legal professionals is rising,” said Charles Volkert, executive director of Robert Half Legal. “Although the market for entry-level associates should remain conservative, lawyers with five-plus years of experience, solid business development skills and client contacts in the hottest practice areas will likely see lateral opportunities increase at small and midsize firms in 2013.” Volkert noted that corporate legal departments also are seeking experienced lawyers and paralegals to handle more commercial transactions, litigation and employment-related matters in-house, and to contain outside counsel costs. “With a growing number of law firms and companies looking to hire from the same talent pool, many employers are bolstering their retention efforts to avoid losing valued staff members to other organizations,” said Volkert. n Attorney Journal | Volume 115 2013
A FIRM BY ANY OTHER NAME By Jennifer Hadley
hen James Iagmin joined The Gomez Firm in 2008, he brought more than a decade of experience as a plaintiff’s trial attorney to the established firm. Having first worked under the mentorship of William L. Veen in San Francisco before joining Schoville & Arnell in San Diego, Iagmin was well-versed in the field of personal injury law. He’d worked within all aspects of complex injury cases, including premises liability, employment, government liability, wrongful death and product liability cases. In fact, he’d been active in the work-up of a product liability case that resulted in a record $369,000,000 jury verdict. However, Iagmin was yearning to try more cases. The opportunity to do just that arose when he accepted an offer from powerhouse personal injury attorney John Gomez. Joining the Gomez Firm would prove to be a landmark career decision for Iagmin. In his time with the firm, Iagmin has not only been named one of the Top 100 Trial Attorneys by the National Trial Lawyers, but has also racked up four Outstanding Trial Lawyer Awards from the Consumer Attorneys of San Diego. Moreover, he’s been named a Top 10 Personal Injury Attorney by the San Diego Daily Transcript, and listed in Super Lawyers for the past three years. Suffice to say, Iagmin has worked hard at perfecting his craft. The hard work has paid off. Just five years after joining forces with John Gomez, Iagmin is widely regarded as one of the best trial attorneys in San Diego. Moreover, he’s become managing partner of one of the city’s largest plaintiffs firms- the recently renamed Gomez Iagmin Trial Attorneys.
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The Gomez Firm Blossoms into Gomez & Iagmin Trial Attorneys, But Remains Rooted in Excellence As Standard.
OF THE MONTH
A Budding Star
“Since passing the bar in 1997, I have represented only plaintiffs,” says San Diego born and raised Iagmin. “My practice gives me the best opportunity to help people. There is no insurance company or corporation between my client and me. My typical client is a very good person going through a very hard time. They have been catastrophically injured, or are the families of those who have been killed because of negligence by some other person or entity. If I can bring comfort to them, while they are coming to grips with economic, physiological, emotional and physical changes that result from traumatic injury; and set them up so that they can live a life of dignity, I feel extremely satisfied,” he explains. “I’m really a nuts and bolts attorney. I love to take depositions. I love to go to trial. And I particularly love cross examinations in trial,” he adds. To that end, Iagmin found himself with the perfect opportunity to go to any lengths to help his clients, through joining the Gomez Firm. “We are committed to trying cases. John Gomez is a two-time recipient of CASD’s Trial Lawyer of the Year Award.” Iagmin’s desire to try more cases has indeed come to fruition in his time with the firm. To date, he has obtained multiple jury verdicts in excess of $1 million dollars, including the first application of the elder abuse laws to an arm’s length real estate transaction. Collectively, Gomez Iagmin Trial Attorneys have tried and won plenty of other cases since Iagmin joined the firm. “Over the last several years, we’ve tried nearly a dozen cases and recovered nearly $100 million dollars in verdicts and settlements,” he says.
“IT COMES DOWN TO GREAT LAWYERING… FROM THAT, ALL GOOD THINGS FLOW.” 18
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In joining forces with Gomez, Iagmin was also counting on the opportunity to use creativity to meet the challenges his clients face. “The work is challenging, and stimulating, and involves everything from medical aspects to engineering aspects. There are also countless human elements involved in a catastrophic injury case,” Iagmin says. To that end, because no two cases are alike, the firm’s attorneys are encouraged and required to think creatively. “One of the great things about John is that he has always allowed me to define my own role in the firm. He gave me the platform to do whatever I want. I can think as broadly as I want, I can take any case I want, and I can be creative,” Iagmin says. By way of example, Iagmin talks of a recent case that the firm handled in which his need to think outside of the box for the benefit of his client was supported in full by Gomez. “We just finished a case in which we helped a small boy who suffered a severe brain injury after being hit by a car.” In order to prove that the defendant did have responsibility in the accident, Iagmin realized that he would have to fully recreate the scenario, as the facts on paper weren’t doing the boy’s case justice. As such, “we basically made a movie,” Iagmin says. “We went to the accident site on a Sunday, we worked around traffic, we staged the scene, we had cars with cameras mounted in them, we had cameras on light posts and we recreated the entire scenario.
This wasn’t an animation, but an actual movie showing what the defendant saw,” he says. The effort was worth it. “We were able to secure a very large recovery. The trust we set up will purchase a home for the boy and his family. He can now receive the education and therapy he needs. Not only that, but he will also have a guaranteed income, under the control of a professional fiduciary, for the rest of his life. It is extremely satisfying to me that we were able to assist him in these most challenging circumstances,” he says.
Commensurate with Iagmin’s promotion to Managing Partner and the firm’s subsequent name change, the firm has also expanded its base of operations this year. “We’ve always had a vision to expand, and we’ve always done a lot of mock trials, and utilized focus groups,” Iagmin says. He adds, “since we try a lot of cases, we like to practice, so we have moved to state of the art facilities, complete with a full size courtroom.” Located on the 17th floor of 655 West Broadway, Iagmin continues, “we took the whole northeast corner of our office and built a courtroom. It has a jury box, a gallery, the works,” he says excitedly. “It’s a real place to practice, and we will also make it available to interested parties and for other continuing legal education. We encourage colleagues to visit and experience this very unique space,” he adds. The firm’s bigger office also allowed Gomez Iagmin Trial
Attorneys to hand select promising new attorneys to join its team. Most recently, the firm added four new trial attorneys to its acclaimed team. Dave Fox, Parisima Roshanzamir and Ben Coughlan are trial attorneys dedicated to helping individuals who have suffered catastrophic personal injuries. Stephanie Poli has also joined the firm as a trial attorney practicing in the Mass Torts Division with a strong interest in catastrophic injury and products liability. As managing partner, Iagmin explains that his growing list of responsibilities will include training and strategizing with the firm’s young lawyers. “I get to help young lawyers be the best lawyer they can be, not only for our clients, but also for their own growth,” he says.
Rooted in Excellence
While there seems to be no stopping the growth of Gomez Iagmin Trial Attorneys, there is really no big secret to the firm’s success. “It comes down to great lawyering,” Iagmin says. “From that, all good things flow. We take the time to explain the process to our clients and help them through difficult and frequently tragic times in their lives. We work as hard as we can to provide our clients with the best representation and service possible,” he adds. That hard work is one of the reasons the firm receives so many referrals from colleagues. “Attorneys can feel confident that Gomez Iagmin Trial Attorneys will take good care of their family, friends and clients. We help people through difficult Attorney Journal | Volume 115, 2013
times and maximize their recovery. We enjoy collaborating on cases if an attorney wants to stay involved. We can handle the most sophisticated cases, so attorneys also opt to refer the biggest cases to our firm,” Iagmin says. As a show of appreciation for the referrals, Gomez Iagmin Trial Attorneys frequently pays generous referral fees, often in the six-figures. In fact, in 2012 alone, the firm paid out more than $1 million in referral fees. But for Gomez and Iagmin, the work they do within the legal community is but a part of a larger commitment to serving the entire San Diego community as a whole. “Everyone at Gomez Iagmin Trial Attorneys contributes time, talent and treasure to the community. It is one of our guiding principles. Year after year, I organize a team to race in NFAR’s Race for Autism. John Gomez has walked and run for causes, and performed stand-up comedy and the quick step in a dance competition to raise money and awareness for underserved youth in San Diego. Organizations such as the March of Dimes, The New Children’s Museum, San Diego La Raza Lawyers, Malashock Dance and San Diego Volunteer Lawyers also benefit from our firm’s commitment to improving the community in which we live,” Iagmin explains.
A Flourishing Future
Whether it comes to thinking creatively, mentoring young attorneys, giving back to the community or going to any lengths to help clients, “Gomez Iagmin Trial Attorneys sets excellence as the standard. We investigate cases thoroughly and efficiently. We have the people and resources to take the biggest cases from investigation through trial,” he says. Case in point: John Gomez is currently trying the nation’s first DePuy defective hip prosthetic case. “We represent over 100 patients who received these dangerous implants,” Iagmin says. “We are also currently representing the families of victims killed in the nation’s most infamous case of unintended acceleration,” he adds. As far as the future of the newly named firm is concerned, the plan is to stay the course. “Gomez Iagmin Trial Attorneys will continue to represent people who have suffered catastrophic injuries and families who have lost loved ones. We will also continue to expand our representation of large groups of people injured by dangerous and defective products. We are the vanguard in the field, and we will continue to be at the forefront of the legal community,” Iagmin says. But for all the firm’s sophistication, it’s almost certain that their future success will be based on a relatively simple philosophy. “We simply try to do the best job, to get the best resolution, and all of the good things that continue to come our way seem to flow as a direct result of that,” Iagmin concludes. n Contact: James Iagmin | Gomez Iagmin Trial Attorneys 655 West Broadway, Suite 1700, San Diego, CA 92101 www.thegomezfirm.com | email@example.com 619-237-3490
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• Loyola Marymount University, B.A. 1991 • University of San Francisco, J.D. 1997
» CITED CASES
• Crowe v. County of San Diego (9th Cir. 2010) 608 F.3d 406 • Ohton v. California State University (2010) 180 Cal. App.4th 1402 • Ohton v. California State University (2007) 148 Cal. App.4th 749 • Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525
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Attorney Journal | Volume 115, 2013
Helping Hand By Jennifer Hadley
Russell Kohn extends his hand to personal injury plaintiffs and attorneys launching solo practices
FEATURED PROFESTSHIOENMAOLNPTROFILE OF
am a people person. I could not be happy working for a corporation or insurance company. I enjoy the personal and professional satisfaction that comes from helping injured people obtain full and fair compensation,” says Oceanside-based personal injury attorney Russell S. Kohn. Furthermore, he also notes that over his nearly 30 year career, he’s found a great deal of satisfaction in helping other attorneys attain the same satisfaction that he realized upon opening his solo practice in 1994. Originally from Chicago, Illinois, Kohn attended the University of Arizona in Tucson, earning his Juris Doctor in 1984. By 1985, he’d been admitted to practice in both California and Arizona. Kohn spent his first couple of years as an associate for a general practitioner, handling everything from mechanics liens, to criminal defense, and personal injury claims. There he handled his first jury trial, defending a client charged with drunk driving and hit and run. The jury acquitted the client of being under the influence and of hit and run, but convicted the client on the blood alcohol level charge.
Grasping Opportunity Kohn enjoyed the personal injury work so much that he soon joined a firm that exclusively represented injured victims in personal injury matters. “I’m glad I got into the field of personal
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injury,” Kohn says. “I really wouldn’t want to do anything else. I empathize with my clients, and I take the time to understand the unique effects of the injuries to the specific lifestyle of each client,” he adds. For the next seven years, Kohn worked as an associate attorney, sharpening his trial skills. “When I was a young attorney, I handled many court ordered judicial arbitration hearings. While many of these were non-binding, they honed my trial presentation skills by requiring preparation and presentation of opening statements and closing arguments, preparation of clients and witnesses, and direct and cross examination of witnesses,” he says. Unfortunately, for new attorneys starting out today, “the courts no longer order cases to arbitration, and thus young attorneys have a tougher time getting trial experience necessary to be successful going solo. I had a leg up that gave me the confidence that I could handle cases on my own through trial,” Kohn explains. With substantial trial experience in place, Kohn was ready to make the move to solo practitioner. However, he admits that a generous break from attorney Gary Nell gave him the final nudge to open his own doors. “Gary Nell owns the office building in which I have practiced since hanging out my shingle 19 years ago. He agreed to allow me to initially rent office space on a month to month basis, when I was unsure of my successful venture into practice on my own,” Kohn says.
Kohn’s apprehension wouldn’t last long, however. He earned his first clients through an advertisement in the Penny Saver, and delved into networking within the legal community. Within just two years of opening Kohn Law Office, he was appointed Chair of the Personal Injury section of the North County Bar Association, and was one of the Association’s most active members. He went on to serving on the Board of Directors, and as the Association’s Treasurer, before becoming President of the NCBA in 2004. Over the next three years, from 2005-2008, he held the elected position as a Director for the San Diego County Bar Association. Referrals from satisfied clients make up a large portion of Kohn’s caseload. Kohn believes “that a successful resolution of a case is only achieved if the client is satisfied with the result; I believe that a satisfied client is one who is fully informed about the applicable law, facts and available options.” Not surprisingly, this philosophy proved to further cement Kohn’s reputation as not only an experienced attorney, but as an attorney of integrity as well. In 2007 he was amongst the top 5% of attorneys endorsed by Super Lawyers for outstanding achievement.
Expanding His Reach Over the years, Kohn has also helped fellow attorneys launching their own firms. “About 12 years ago, attorney John Hansen was considering venturing out on his own. He came in to talk with me about how I grew my solo practice. I told him that I’m living proof that you can go out on your own and be successful,” Kohn says. Advice that Kohn routinely gives to attorneys starting their own practices includes “being responsive to clients, and keeping them informed. If your clients like you, then they will refer others who need help to you,” he says. Moreover, Kohn encourages those looking to start a solo practice to help the legal community as a whole. “I suggest that attorneys starting their own practices give back to the legal profession by volunteering with local bar associations, and getting to know other local
attorneys and judges. Potential clients like to know that you are well-connected in the legal community.” In addition to offering his own successful strategies to others, Kohn has financially assisted other attorneys launching their solo careers by associating them into cases. “In helping my clients achieve a full measure of justice, I began associating with other attorneys who are establishing their own practices. I am able to help so that they have income coming in during the start up years.” For example, Kohn has associated into his cases attorneys John Hansen, Lionel Halsey and Suzanne Skolnick. Kohn readily admits that attorneys he associates with “have some experience, so I am not teaching them from square one,” but his assistance has been greatly appreciated by those who have worked with him. “Lionel once attested that I fed his family while he was establishing his practice,” Kohn chuckles. Clearly, for Kohn, helping others is just a part of what he does, and what he’s always done. According to Suzanne Skolnick, “When I first started my personal injury practice in North County San Diego, Russell was a source of great advice, insight and referrals. His warm and welcoming attitude helped launch my practice and his continuous support and encouragement exemplifies all that is right with the plaintiff’s bar today,” she says. Attorney John Hansen agrees. “Russell helped me get started when I decided to go out on my own. Instead of viewing me as a competitor, he saw me as a new friend. Russ values friendships.” Whether he’s helping to level the playing field for his injured clients, or helping a fellow attorney launch their own practice; whenever anyone reaches out for a hand; Russell Kohn will make sure his is there. n Contact: Russell Kohn www.Kohnlawoffice.com firstname.lastname@example.org | 760-721-8182
The Equalizers: John Hansen, Russell Kohn, Suzanne Skolnick, Lionel Halsey
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The Management IMPERATIVE by Gerry Riskin
A leader can be forgiven for doing the wrong thing on occasion but what about failing to manage at all? In a corporate setting, this would be perceived as abdication and likely result in dismissal. In many law firms, however, leaders are excused from their management responsibilities. They simply have to mention the important legal work they are doing for a significant client and they can miss meetings and fail to follow through on almost any management initiative. Even in enlightened firms where the managing partner has minimal or no client responsibilities, the practice group leaders and department heads usually continue to carry major client loads and therefore fall prey to the same syndrome. So the summary goes like this: in most law firms the “CEO” (Managing Partner) spends too much time on the shop floor making the widgets, not fulfilling a leadership role. In those firms where the “CEO” actually does lead, the question is, “leading whom”? Even if the “CEO” isn’t consumed with the making of widgets, you can bet the “VP’s” are (VP’s in this case being the practice and industry group leaders and perhaps department heads). A partnership cannot appreciate the cost of the absence of de facto management until it understands what effective management can (and should) achieve. At the highest level of abstraction, management is about getting peak performance from people who are harmoniously striving to achieve personal and firm-enhancing objectives. In a managed firm, individuals are understood so well that their leader finds synergy between personal aspirations and firm success and manages people accordingly. This is no different from what symphony orchestra conductors or sport team coaches do. Management creates a learning culture where knowledge is not fragmented and lost but instead is organized and harnessed. 24
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Synergistic teams are assembled to attract ever-better work and to enhance the quality and value of the service offerings. Management ensures that the firm is healthy enough to adequately compensate individuals and, beyond that, create an environment that fosters appreciation and respect to create glue that transcends compensation. Management encourages innovation that yields more effective and efficient practices. Why then do we tolerate the absence of meaningful management in most firms? Because… • Legal work is perceived as being more important than management; • Fear that management is an excuse to produce less; • Lawyers are ferociously independent and resist being managed; • Critical and analytical thinking negates most progressive ideas; • There is no time to execute the ideas that survive the debates. Then what, pray tell, might a firm do to ensure that it managed effectively? Here is the beginning of a checklist for your consideration: • Ensure that the managing partner has no client responsibilities, or; • If the managing partner is concerned about returning to active practice after serving, then legislate that the managing partner’s client activities be limited to a predetermined level but in no case more than 1/2 of the billable hour target of the average partner; • Create minimum management-focused non- billable hour targets for practice group leaders and industry group leaders (absolute minimum 300 hours per year); The allocation of time for management is necessary but not sufficient. The operative ingredient is the willingness of the managing partner to actually manage and this means setting objectives against which performance can be measured. The managing partner must “manage the managers.” Indicia that the managing partner is actually managing include the following:
•G etting to know the practice group and industry group leaders in terms of their personal aspirations as well as their views about the firm’s potential and how their respective groups might contribute; • Interactively setting customized objectives with practice group and industry group leaders for their respective groups; •A gree on sensible expectations of each practice group and industry group leader in terms of the difference they will make to the group each leads; •M eeting informally with practice group and industry group leaders to ask how they are progressing, to provide ideas, perhaps options, and to offer help; •E nsure that leaders are delegating to members of their respective groups and/or to support professionals in the firm so that the progress of the group is not limited to the time resources of the leader—also to ensure that the leaders delegate in areas where they lack personal aptitude or desire. For example, some leaders are reluctant to coach their individuals but have others in their groups who are well-suited to the task; •R eplace practice group and industry group leaders who fail to perform (or worse, who passively sabotage firm efforts).
Effective management is highly customized. At a minimum, each group should improve service offerings, create learning environments, become more efficient, attract better work, attract good people and lower turnover. However, true management requires a primary focus on one or two of these. For example, a highly proficient practice group may focus on attracting better clients while a group serving premium clients may focus on enhancing client satisfaction to protect them from competitors. Managing partners, therefore, need to let go of the idea that management is a symmetrical matrix. Like children in the family, each group is unique and requires appropriate primary objectives and highly customized encouragement. In an increasingly competitive world, the partnerships that tolerate the absence of effective management will pay the price… maybe a worthy topic for an upcoming partnership meeting. n Gerald Riskin is a Principal of Edge International and the former managing partner of an international law firm. He can be reached by e-mail at email@example.com or by telephone at (800) 707-6449. Attorney Journal | Volume 115, 2013
In an increasingly global and multicultural marketplace, lawyers and other legal professionals with bilingual abilities are being sought by law firms and legal departments alike to meet the needs of their clients. According to a new survey by Robert Half Legal, 42 percent of lawyers interviewed said they are seeing rising demand for attorneys with second-language skills. The survey involved interviews with 200 lawyers with the largest law firms and corporations in the United States. Spanish was identified by 88 percent of attorneys as the language in greatest demand. Chinese ranked second with 9 percent of the survey response, and 3 percent cited â€œother.â€? Needs Reflect Changing Demographics
Second-Language Skills Increasingly Important in Legal Field by Diane Domeyer Diane Domeyer is a District Director for Robert Half Legal, a leading staffing service specializing in the placement of attorneys, paralegals, legal administrators and other legal professionals with law firms and corporate legal departments. The company also provides managed review and e-discovery services. Based in Menlo Park, Calif., Robert Half Legal has offices in major North American and international markets.
Part of the burgeoning demand for lawyers with multilingual abilities identified in the survey can be tied to the nationâ€™s shifting demographics, most notably an increase in the Hispanic population. In November 2012, The Pew Research Hispanic Center reported that there are 53 million Hispanics in the U.S. who comprised 17 percent of the total population and this segment is growing. California, of course, is experiencing much of this demographic change. Recent projections released by the California Department of Finance indicated that the number of Hispanics in the state will equal that of white non-Hispanics by mid-year and exceed it in early 2014 for the first time. In the San Diego legal services market, law firms and corporate legal departments frequently request Spanishspeaking attorneys and legal support professionals (paralegals, secretaries and legal administrators) to meet the needs of their clients. Many are hiring for project-based roles, as both law firms and general counsel often require short-term assistance with document reviews and translation work related to litigation or business expansion into Latin American markets. In addition, law firms as well as nonprofit organizations that provide legal services to Spanish-speaking immigrants often have a need for bilingual attorneys or legal support professionals on a full-time or consulting basis.
Litigation Driving Demand for Second Language Skills Requests for Spanish language skills are common in the greater Los Angeles legal market, which is somewhat similar
to that of San Diego. In addition, Robert Half Legal’s account executives in its downtown Los Angeles branch, which serves the greater metropolitan area, Orange County and the Inland Empire, are seeing an increase in the number of requests for legal professionals who possess fluency in Asian languages, particularly knowledge of Mandarin. Cantonese, Japanese and Korean language skills. Bilingual legal professionals are being sought with greater frequency by law firms and companies for international litigation, patent filings and intellectual property matters. In both San Diego and Los Angeles, the need for Asian language fluency is being driven by a surge in patent prosecution in the high-tech industry, especially among software and cell phone companies that are either based in Asia, doing business there or litigating suspected patent infringement by Asian-based competitors. A recent lawsuit between two technology giants over smartphone patents illustrates on a large scale what is taking place in numerous markets across the U.S. One of the parties engaged dozens of contract attorneys and document reviewers who were fluent in Korean to examine litigation-related documents provided by opposing counsel. As the number of multinational transactions and disputes grows, this trend toward both law firms and corporate legal departments hiring bilingual attorneys on a project basis to assist with e-discovery and document review is likely to continue. Other sectors are actively hiring bilingual professionals to assist with document translation and analysis. For instance, litigation in the financial services, telecommunications and automotive industries is sparking demand for document reviewers who can bring both foreign language and legal skills to the task at hand, helping to winnow down a daunting amount of information and pinpoint what is worthy of closer scrutiny.
populations of Hispanic-origin residents behind California. A review of legal job postings also suggests that Spanishspeaking legal professionals are in high demand in other areas of the country, including Arizona, Colorado, Massachusetts, New York and North Carolina. In addition to immigration, a number of law firms, especially those in Texas and Florida, are seeking Spanish-speaking legal staff with experience in family law and labor and employment matters. Some local government entities in states with large Hispanic populations also are trying to attract bilingual legal professionals for fulltime positions. Unquestionably, this is a good time to be a bilingual legal professional. Not only is being bilingual an important differentiator in today’s job market, but having the cultural literacy to accompany second-language proficiency will be a highly marketable attribute as globalization continues to impact the legal profession in the years ahead. n
Immigration and Globalization • Few organizations now operate within a single country. As a result, many law firms are providing legal counsel to Americanbased corporations with multinational business interests, offering legal services to foreign clients with business ties and investments in the U.S. and handling an increasing number of global transactions and litigation matters. To better meet their clients’ needs, law firms are seeking attorneys who are not only bilingual but who also understand the nuances of international law. • Immigration is another legal practice area where attorneys with foreign language skills are needed. States that are experiencing strong demand for Spanish-speaking legal professionals include Texas and Florida, which have the largest
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What are effective ways to manage the client’s expectations and develop an effective strategy that will enhance the likelihood of a successful mediation?
Preparing for a Successful Mediation by Steven H. Kruis, Esq. Steven H. Kruis, Esq. has mediated and litigated thousands of cases over the past 32 years. A former managing partner of Higgs, Fletcher & Mack, he began mediating in 1993, and handles real property, business, probate, employment, and injury matters. He is a full-time mediator with Kruis Mediation. www.kruismediation.com
Managing Client Expectations. Two California published opinions provide a cautionary tale of what can happen when the mediation outcome differs from the client’s expectations. In Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, LLP) (2011) 51 Cal. 4th 113, a federal trademark and copyright case, the parties attended a 14-hour mediation and reached a $1.25 million settlement. Later believing that he did not get enough, the plaintiff sued his lawyers for malpractice, claiming that they forced him to settle in mediation. The case was thrown out because mediation confidentiality trumped the malpractice claim. The lawyers’ statements in mediation allegedly forcing the client to settle, although made to the client in private and outside the presence of the mediator, were inadmissible. In Wimsatt v. Superior Court (Kausch) (2007) 152 Cal. App. 4th 137, plaintiff Cory Kausch was involved in an aviation personal injury claim. Kausch attended a successful mediation with his lawyer, William Wimsatt. Kausch then sued Wimsatt claiming the settlement amount was not enough because Wimsatt, reduced the pre-mediation demand from $3.5 to $1.5 million without his knowledge or consent, thereby reducing the amount achieved in settlement. He sought to discover Wimsatt’s mediation brief and emails to the mediator sent before the mediation. Essentially eviscerating the plaintiff’s case, the court of appeal concluded that mediation briefs and e-mails sent to the mediator before the mediation are protected communications under mediation confidentiality statutes and therefore not discoverable. While both cases concluded successfully for the lawyers, they demonstrate the importance of managing the client’s expectations going into mediation. Whether representing plaintiff or defendant, it is imperative that the client understand the value or exposure of the case and that the outcome of the mediation is consistent with those expectations. Use of Resources to educate the client. The process of educating the client begins well before mediation. Case evaluation should be done at the outset by reviewing jury verdicts and reported settlements. Seasoned counsel will have insight based upon experience, while newer attorneys should consult with experienced colleagues. Provide the client with this evaluation and the basis for it. With clients, particularly plaintiffs who have unrealistic expectations, an excellent resource to consider is a study of civil lawsuits. In “Let’s Not Make a Deal: An Empirical Study Of Decision Making in Unsuccessful Settlement Negotiations,” Journal of Empirical Legal Studies, Volume 5, Issue 3, 551-591, September 2008, the authors reviewed 2,054 civil cases over a three-year period and found that plaintiffs made the wrong decision in going to trial 61% of the time. The amount of their recovery was less than what had been offered.
Conversely, defendants made the wrong decision 24% of the time. They ended up paying more after trial than if they had accepted the plaintiff’s last demand. In only 15% of the cases did the parties make the right decision in going to trial – plaintiff recovered more than defendant offered, and defendant was found liable for less than what plaintiff demanded. Developing an effective mediation strategy — who should attend the mediation? In your pre-mediation meeting with the client, determine the identity of all participants who should attend the mediation. That includes all of the client’s “constituents” needed to have settlement authority. With elderly clients, “constituents” may include adult children or other influential individuals. Spouses and significant others may also be necessary. In trust cases, they may include all beneficiaries and the trustee. If the case is contingent on establishing certain facts or damages, consider having fact sources available as well. In business or commercial disputes, this may include accountants. In construction-related matters, expert witnesses could be helpful. The mediation process. Explain the mediation process and dynamics to the client so that he or she will know what to expect. This may include a joint session and private caucuses with the mediator and discussions that are cloaked in the mediation privilege. While all mediations and mediators are different, in general terms, mediation will include at least three phases. The first is an effective exchange of information. This begins with the mediation briefs, especially if they are exchanged, and continues
with a joint session or attorney meeting with the mediator. The second phase, usually done in the break-out meetings between the mediator and individual parties, is the reality testing portion of the mediation. The mediator may ask questions and share neutral impressions to help the parties assess the risk of their own position by better understanding the opposing party’s case. The third and final phase is the negotiation and, if done successfully, will lead to a settlement that is normally reduced to a stipulation for settlement or settlement agreement supplied by either the mediator or counsel. Strategy for negotiation. Discuss with the client the negotiation process and positional bargaining, a process that will involve a series of demands and offers. For the plaintiff, be prepared to make a reasonable demand. Conversely, the defendant should be prepared to make a reasonable offer. Most settlements are near the midpoint of the first reasonable demand and the first reasonable offer. Make sure the client is on-board with your thinking, and understands that the first moves are not as important as those toward the end of the negotiation process. Be prepared to draft a settlement agreement. Explain to the client the importance of a written settlement agreement that must be signed by all parties in order to be enforceable. Bring a settlement agreement to the mediation that can be finalized and signed if settlement is reached. By following these suggestions, you and your client can be prepared for and enhance the likelihood of a successful mediation. n
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