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If you are looking to refer a personal injury case, go with a winning team. We handle San Diego’s biggest serious personal injury, wrongful death, products liability and mass torts lawsuits. We also love working with other lawyers and pay generous referral fees. Give us a call.

www.thegomezfirm.com

For more information, please contact: Yolanda S. Walther-Meade, VP, 858.504.0188 | yolanda@thegomezfirm.com 625 Broadway, Suite 1200 | San Diego, CA 92101


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TABLE OF CONTENTS features VOLUM E 102, 2012

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STEPHEN FAIRLEY

8 Are You Referable? DAVID V. LORENZO

4 3 Keys to Improve Your Law Firm Marketing Efforts & Make This Your Best Year Yet!

10 LAW FIRM OF THE MONTH ESTEY BOMBERGER

18

EDITOR LeAnn Gerst

16 Cyber Liability: Do You Need to Safeguard Your Firm Against Cyber Crimes? STEVE BROOKS

EXECUTIVE PUBLISHER Brian Topor

18 ATTORNEY OF THE MONTH STACY FODE

22 The Art of Error Recovery NORM HULCHER

26 REAL ESTATE ADVISOR OF THE MONTH JEFFREY CHASAN 30 What to Say When the Client Says, “I Want to Think About It” DAVID WARD

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CREATIVE DIRECTOR Julianne Gleaton CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Nalen Green Karen Gorden CONTRIBUTING EDITORIALISTS Stephen Fairley David V. Lorenzo Steve Brooks Norm Hulcher David Ward WEBMASTER S. Chorng ADVERTISING INQUIRIES info@AttorneyJournal.us EDITORIAL INQUIRIES Editorial@AttorneyJournal.us

Editorial material appearing in Attorney Journal is an informational service to 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 2011 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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Welcome to the New Year! If you’re like many attorneys I’ve talked to lately, you are glad last year is over. Hopefully, we have turned off the nightmare street called “Recession” and are back on the “Road to Recovery!” Even still, there are many sectors in the economy that are still stagnant, like estate planning or even contracting—think real estate. Many attorneys have found they are working twice as hard to capture the same amount of clients. Law firms that “never had to market before” are having to make the choice of either getting serious about legal marketing (instead of just paying lip service to it) or losing their prospects, clients, and referral sources to more sophisticated and dedicated law firms who are not afraid to aggressively promote their services both online and offline.

3 Keys to Improve Your Law Firm Marketing Efforts & Make This Your Best Year Yet! by stephen fairley

Stephen Fairley is CEO of The Rainmaker Institute, the nation’s largest law firm marketing company that specializes in helping small and solo law firms generate more referrals and build lifestyle law firms. Over 6,000 attorneys have benefitted from applying their proven Rainmaker Marketing System. For more information visit: www. TheRainmakerInstitute.com or call 888-588-5891.

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Attorney Journal | 2011 Edition

Here at The Rainmaker Institute, we specialize in helping small law firms and solo practitioners generate more leads, convert more prospects into paying clients, and significantly increase their referrals and repeat business. One of the many reasons why over 8,000 attorneys have made the right decision to trust us with their marketing efforts is because we stay on the cutting edge of how to market a small law firm in a professional manner. We analyze economic, business, and consumer-related trends and how they apply to the legal industry. Over the next 12 to 18 months, we believe there will be some significant changes in the legal marketplace. Specifically, we see four types of law firms emerging: • Firms Who Fail—Attorneys who either stick their collective heads in the sand, refuse to acknowledge that the marketplace has forever changed, or simply fail to take decisive action in response to the prolonged recession climate may see themselves go under. While each law firm must carefully evaluate the options, choices may include, but are certainly not limited to: changing their practice area (from bankruptcy to tax or from insurance defense to commercial litigation), refocusing their limited marketing budget (from yellow pages to blogs and internet marketing), or even removing Partners who are not performing. • Firms Who Merge—Although this has been a trend among mid and large firms for some years now, we see this trend affecting smaller firms who will merge for one of three reasons: (a) to provide additional services to their existing clients, (b) to prepare for the eventual retirement of an older partner, or (c) perceived or real cost benefit savings by sharing expenses or combining offices. • Firms Who Barely Survive—As we, hopefully, end this difficult economic cycle, we are seeing a growing number of attorneys who waited too long to respond and now have nothing left. In times past, these attorneys would go in-house or would “merge” with a larger firm who wanted access to their clients, but with firms continuing to lay off attorneys and larger companies looking for ways to reduce their in-house legal staff, these types of people may be searching for months before they are forced to take a less than fulfilling position. • Firms Who Thrive—A few, select attorneys and law firms will use our country’s current economic downturn to reposition themselves, to aggressively increase their market share, and


attract top talent who were let go by other firms. In every crisis lies opportunity. Some of today’s most successful companies were started in a recession, including Apple® and Microsoft®. I recently met with the Managing Partner of a 40-person law firm on the east coast who is rapidly expanding their territory by buying up other law firms. His stated goal is to go from 40 attorneys to over 100 by 2013. His next buyout of a 22attorney firm is set to take place in Q1 of this year, so he is well on his way. By now, the question you should be asking is, “How do I ensure my law firm is the one that thrives?” In Part 1 of this series, we will cover several specific steps you can take to recession-proof your law practice and turn these troubled times into an opportunity for your law firm. 1. Focus on profits—not just growth. Growth is a good thing and so are revenues; however, profits are better. Do not make the mistake of only focusing on your top-line revenues. Analyze your profit margins on all the legal services you provide. In tough economic times, you generally cannot afford to have “loss leaders”—services where you “lose a dollar on every sale, but promise to make it up on volume.” The only exception to this is if you have a higher back-end service with a much higher profit margin and you can demonstrate that at least 50% or more of your clients eventually upgrade to the higher-end service. I was recently working with a small law firm generating almost $1.5M in revenues, but the profits were less than $400,000 annually. Barring the unusual, top-performing law firms should generate at least 30 to 40% Net Operating Income (NOI). We analyzed the law firm’s profit and loss (P&L) statements and found their accounts receivables were extremely high, an especially dangerous situation to be in given the state of the economy. Meet with your partners and business manager to analyze your profit margins. Specifically, look at the following factors: • Top 10 accounts—How can we serve them better? Are they obtaining legal services from other law firms that our firm can provide? What do we need to do to convince them to send more business to our law firm? How can we serve them better by “micromanaging the client experience”? How do we find more clients like them? How can we encourage them to refer our firm to other people or companies that have similar characteristics or profiles to them? • Bottom 10 accounts—How much time do we and our staff spend on managing our bottom ten accounts? Do these accounts have the potential to become at least “B” clients or should we terminate them so we can better focus on our top ten accounts? We have often seen the bottom 10 (or 10%) of a law firm’s clients take up 30 to 50% of the attorney’s or staff’s time and attention. Unless there is a compelling reason, most firms are better off if they look to replace those bottom 10% with better accounts and then politely ask the

bottom 10% to find another firm (perhaps refer them to your competitor?). • Services that you have used as “loss leaders”—Should we start charging a consultation fee, even a small one, to reduce the number of “tire kickers”? Can we delegate most of the work for managing this service to either a staff member or an associate? What percent of people who use the loss leader service actually convert into a higher-end/paying client? Consider significantly changing the service or eliminating it entirely unless you have at least 50% of people or companies converting from the loss leader into a higher-end service or you have a service that is perceived as having high value, but does not cost you much to provide. One of our law firm clients works with small businesses uses incorporations as a loss leader. He gives them away for free! Here’s the catch: if you retain him to create your operating agreement and buysell agreement, he will incorporate your new company for no additional fee, other than fees paid directly to the state for registration. Over the years, he has recognized that he forms a much stronger bond with partners who have him create their operating or buy-sell agreements, especially as compared to people who have him set up an LLC for them. Several of his largest clients have directly come from the relationship he built with them during the process of creating their operating agreements or helping them set up a buy-sell agreement. • Major services that most of your clients use—This area has the potential to generate significant revenues for your law firm. If you have a handful of services that most of your clients use, how can you make those services more efficient or more valuable? For example, how can you refine the process or system you use to make those services more streamlined and efficient, thereby increasing the net profits? Can you delegate a lot of the process to a staff member to increase the profit margins without damaging the client relationship? What could you add to the basic service to give a percentage of your clients the opportunity to upgrade to the “concierge level?” • Accounts receivables—See below. 2. Focus on cash flow. As Bill Martin, one of my mentors, repeatedly states, “Cash flow solves a lot of problems!” I have encountered several law firms lately that have made major mistakes in marketing their practice because they did not have a handle on their cash flow. Pay yourself first, your staff second, and your vendors third. Sit down with your accountant and go over your cash flow situation and seek their expert advice on ways you can improve it. Ask for longer payment terms from your vendors. Forgo buying that new computer or expensive phone system when your current one is ok. Don’t upgrade to the latest version of your software program just because they added a few more bells and whistles. Cash in the points you have accumulated with your VISA rewards card for office supplies, airline miles,s or Attorney Journal | Volume 102, 2012

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other commonly used items. Emphasize to your staff that invoices must be sent out on a regular basis. By delaying sending out invoices, you’re encouraging clients to delay paying you! This is especially true of litigation firms. There is one piece of advice I give to all my litigation clients: bill more frequently—at least monthly. If it’s a 5-figure invoice then send out smaller invoices byweekly. I am not kidding! No business owner likes to get a 5-figure bill. For a smaller business this can have a major impact on cash flow or making payroll that week, so they end up delaying payment. It’s must easier to pay two smaller bills every month (most companies do payroll twice each month). When you delay sending out invoices for 15 or even 30 days and your client questions or disputes the bill, it ends up negatively affecting your cash flow even more. Far too many law firms let these types of situations quickly spiral out of control. 3. Require every single employee to either make you money or save you money. You cannot afford to have employees who are 100% overhead. Every single person you employ should be able to identify at least two ways they can either save you money or make you money. I recall one of the last conversations I had with one of my former employees a few years ago when she politely explained to me, “Stephen, I don’t make you any money; I’m pure overhead.” That attitude is fine if you’re in a Fortune 500 company (her previous employer), but not in a small business. Within 30 days she was replaced. Here are a few ways your employees can either save you money or make you more money: • Fix your follow-up! Follow up with every single prospect who has called, emailed, or contacted your office for any reason in the last six months. I don’t care if your staff doesn’t want to do it! I hate to say it, but most law firms are very lazy when it comes to follow up and it’s one of the biggest mistakes they make in marketing. You have no idea if that potential client ended up hiring someone else or if they decided not to hire anyone and file pro se or if they are still satisfied with the legal counsel they received or if they are looking for a different attorney because their current one never returns their phone calls. Fix your follow up! • Make sure your invoices go out on time! If an invoice is over a certain amount then start billing them more frequently. • Set a limit to suspend or stop services. If a client is over a certain amount and your staff has tried to contact them several times to collect the overdue amount, then you, as the business owner, need to call and email the client to inform them that, unfortunately, unless this overdue amount is taken care of by a certain date, you will be forced to suspend services and even drop out of the case. I always take the position that I would rather not do the work and not get paid, then to do the work and not get paid. 6

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• Collect an overdue payment from a former client. Many attorneys have had great success in giving their business manager a “bonus” for each overdue payment collected. It does not have to be a large amount, perhaps $50 or so. Be sure to give them a de minimus flat fee, not a percentage of the amount collected as this may be perceived as “fee splitting with a non-attorney.” • Analyze every bill you receive to check for errors; then look for ways to reduce recurring fees. Assign a staff person to look over your monthly cell phone bill, Yellow Pages, and advertising bills to ensure no “feature benefits” have been added without your authority. • Assign a staff person to track bills that do not come on a monthly basis as they are much harder to track and leave you susceptible to fraud or charges for previously cancelled services. • Have a staff member or office manager use your VISA reward points to purchase gift cards to an office supply store. One of my staff members did this and saved us over $600. • Book your travel on Southwest Airlines instead of a higherpriced one. In my experience, they still have the best frequent flyer awards program in the industry and no extra charges for baggage. • Create a monthly online newsletter or e-zine to keep in touch with current and former clients, prospects, and referral sources. We recommend ConstantContact.com or, if you need help, we can provide a “Done For You” newsletter. • Call your bank to get them to reverse minimum balance charges and other miscellaneous fees on your checking account. With the recent changes in the banking laws restricting fees that banks can collect, a number of more “creative” fees have been cropping up on statements. • Chase down the promised referral fee from an attorney. Better yet, have your staff create a written system for tracking when referrals are sent out, when cases are taken, and when the fees come in. • Have your associates turn their billable hours in every week so invoices can be sent out faster. • Have your staff contact and set up a breakfast, lunch, or coffee with a potential referral partner at least two to three times every month. Not all of them will work out, but some will. I’ve never seen a law firm that could not improve their efficiency at least 20-30%. Hold a brainstorming session with your staff on how the firm can save money or reduce expenses and then either ask for volunteers or assign responsibility for who will take action on specific items. Meet on a monthly basis to hold your team accountable and report the progress they have made to date. It’s in times like these that every single team member needs to be working as hard as possible to help the firm survive. Stay tuned for the next issue where we will discuss more strategies to help you save money, increase your referrals, and recessionproof your law practice. Welcome to the New Year and the New Realities of Doing Business! 


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Attorney Journal | Volume 102, 2012

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As I

sat in the waiting room of a successful personal injury

attorney,

I was struck by what was missing. On the walls were Each one was signed and numbered by the artist. They were a nice touch and tasteful (some might even say classy) paintings.

a departure from the usual press clippings and brag articles you find adorning the walls of most trial lawyers.

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

8 Attorney Journal | Volume 2011 Edition 102, 2012 8 Attorney Journal

The receptionist was immaculately groomed and conservatively dressed. The furniture was clean and comfortable with a relaxed living room feel. The location of the office—a class “A” building in the good section of a lower income neighborhood—struck me as an unusual choice. Most of the lawyers in town were near the courthouse. Jim Jenkins selected a high-traffic shopping district for his office location. It was a place everyone could easily find. When I met Jim, I noticed his clothing and demeanor seemed consistent with everything else in his law firm. Jim was smart but used everyday language. He built his personal injury practice almost exclusively by referral. There were no billboards around town with his photo. His face was not plastered on the side of a bus. He spent no money on television or radio advertising and he didn’t even have a website. Yet everyone in town knew him and respected him as a fantastic trial lawyer. How did this average lawyer (by his own admission) who graduated from an average law school, develop a law firm that routinely, year after year, netted over seven figures in personal injury settlements and judgments? He focused on making himself “referable.” And he used some highly effective, ethical techniques that make him the logical choice for legal advice for the people in his community. Let’s look at how Jim, and the hundreds of lawyers like him, become magnets for referrals. How To Become More Referable There are three elements necessary for a client to pass your name along to another person as a potential client. These elements make you referable. If you want to receive more referrals people must: • Know you • Like you • Trust You Being Known and Being Remembered The first quality of a referable lawyer is visibility. This means that people know who you are, they know what you do, and they know how to describe what you do. Obviously your clients and your former clients know who you are, but you want to constantly remind them. They must remember what makes you different from everyone else who does what you do. They must remember the benefits to working with you. And they must be able to describe these things specifically to others. To make sure people can accurately describe who you are, how you help people, and what makes you different, you have to give them some examples of your work. Give them a story to tell. This not only allows the referring party to understand the type of person you can help, and specifically, what you can do, it also helps them describe how you can potentially help others.


Likability The second quality of a referable lawyer is likability. People are not going to refer others to you if they don’t like you. It is a pretty rare occasion when someone says to a friend, “This guy is a real jerk, but you must hire him immediately.” Don’t be phony. Be yourself. Be a regular person. Match your language to your potential client base. Don’t use twenty words when three or four will do. Do not try to impress your client with your expansive vocabulary or your knowledge of legal terms. Speak with them using professional yet easy to understand language. Always make sure you balance their understanding with respect for their intelligence. Don’t talk down to people. Be courteous. Common courtesy is not all that common. Here’s a refresher in three simple steps: First whenever you are meeting someone, whether it’s a formal appointment or an informal appointment, show up on time. Your respect for someone’s time shapes their perception of your integrity. If you show up thirty minutes late for a meeting with me, it shows you have no respect for me. If you don’t respect me, I certainly will not like you. Second, be positive. Speak positively about life in general. Nobody wants to be around someone who is full of negative energy. Look for positive qualities in others. People do not send their friends, relatives or clients to meet with negative people. Finally and most importantly of all, take pride in your appearance. Be clean, well groomed and appropriately dressed. If you are not proud enough of yourself to be clean and well dressed (not expensively dressed but appropriately dressed),

people will not be proud enough of you to recommend you to others. You should always meet your clients wearing professional attire. Those are the three elements of likability: 1) Show up and be on time, 2) have a positive attitude, and 3) Take pride in your appearance. Establishing Trust The final quality of the referable lawyer is trust. Trust is made up of two components: credibility and believability. When it comes to your credibility, honesty and integrity are of the utmost importance. Do not cut corners or try to embellish the facts to look good. Review your website and all of your biographical profiles. Make sure all information is accurate and complete. There is no room for even the slightest exaggeration. Believability begins with how you conduct a conversation with the client. Listen carefully and respond to him realistically. It is your job to discuss alternative approaches to the client’s situation in a non-judgmental way. If you have seen this situation before, say so. If most of the time, it doesn’t end well, you must be direct with him and give him an honest assessment. Jim Jenkins has mastered the art of being referable but he didn’t do it overnight. Put these referral-driving habits into practice now and you will reap the rewards throughout your career. If you want to build a law firm that does business “by referral only” you must be worthy of the referrals you would like to receive. While many of these ideas may seem like commonsense, it is their consistent application that leads to results.n

Pre-Settlement Funding Solutions

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p hotograp hy by Bronson Pate 10

Attorney Journal | Volume 2011 Edition 102, 2012


THE

STEPHEN ESTEY & MIKE BOMBERGER SUCCESSFULLY MIX BUSINESS WITH PLEASURE

BEAT LAW FIRM

OF THE MONTH

2012

T

by jennifer hadley

“Don’t even think about going into a business partnership with your best friend.”

his was the advice from colleagues and friends of Stephen Estey and Mike Bomberger who repeated the widely accepted belief that going into business with your friend is likely to have disastrous results. Fortunately, Stephen Estey and Mike Bomberger founders of Estey & Bomberger, LLP, ignored this advice and represent the clear exception to the rule. In fact, the two—who met while attending California Western School of Law in the late 1980s- have not only managed to avoid disaster but, on the contrary, have built one of the most successful and highly regarded personal injury firms in San Diego.

However, there were some bumps in the road. “Law school was a big change for me from college,” says Mike. “The sometimes cutthroat atmosphere I saw in my first year was different from college, where everyone freely shared notes and helped each other.” As a result of his disenchantment, Bomberger left law school after his first year and returned to his native Pennsylvania with no intention of returning. However, after eight months, Stephen talked him into returning to school. In fact, it was Stephen who flew to Pennsylvania to accompany Mike on the cross-country drive (through blizzards and all) back to

law school. The two studied together, lived together, and attended law school together until they both graduated in 1992. Once again, Mike decided to return to Pennsylvania with every intention of staying, and even sat for the Pennsylvania Bar. However, two months of continuous rain and snow had him heading back to the West Coast after taking the Pennsylvania Bar, where he lived in Steve’s living room when studying for the California Bar, and subsequently getting his first job. Both went on to work in the field of personal injury, and by 1997, Mike had won a birth injury case Attorney Journal | Volume 102, 2012

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the capital required for the two to collaborate in their own venture. “Enjoying work has always been more important than making money,” Mike says. Thus, they bought the building which housed the firm Mike worked for, bought out his boss, and Estey & Bomberger was formed as a true 50/50 partnership.

Mike and Steve understand that the success of their firm is due mainly to their collaboration on cases, understanding one another’s strengths and using this to structure their firm. Mike tends to do a great deal of the pre-trial work, analyzing prospective clients, and steering the direction of the cases the firm will take on. Mike also handles damages while working with all of

well-known published opinions, including Cervantes v. United States of America (9th Cir 2003) 330 F. 3d 1186, and the case that he argued and won before the California Supreme Court in Morris v. DeLaTorre (2005) 36 Cal. 4th 260. But neither has more say when it comes to decisionmaking than the other. “We have to agree on which cases we take on,” says Steve. To that end, the team which handles exclusively high value personal injury cases—where the typical client is one that has suffered psychological or physical injuries that will affect them over their lifetime—is very selective about which cases it will take on. “We only take a handful of cases each year, which allows us to spend a lot of time working up each case,” says Steve. Brain injuries, wrongful deaths,

the medical experts in their large damage cases. Stephen handles liability on most cases and “is able to effectively distill many facts into a compelling story as cases are prepared for trial,” says Mike. Steve also handles all of the appeals for the firm which have resulted in two

orthopedic injuries, and cognitive disorders that will require lifetime medical care are Stephen and Mike’s specialty, and knowing what they do well has been a major factor in their overwhelming success. The firm has received an AV rating from Martindale-Hubbell,

Down to Business

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and both partners have been included in Law & Politics’ San Diego Super Lawyers list, as well as selected by the American Trial Lawyers Association (”The Association”) as two of the 100 Top Trial Attorneys in the state of California. Steve was also selected by his peers for inclusion in The Best Lawyers in America® 2012. “The success of your practice is as much dependent upon the cases that you turn down as it is for the cases that you accept,” Steve says. This has certainly proven to be true for Estey and Bomberger who wholeheartedly believe in being proactive rather than reactive in litigating their cases because “we understand that what we do for our clients is going to affect them over their lifetime. That is a great responsibility,” Mike adds. For this reason, they prepare much of the case prior to even

on catastrophic injury cases, for teaching them how to work up and prepare large injury cases for trial. “Don taught us much of what we know and practice from initial intake to depositions in working up our large injury cases,” says Mike. Consequently, the pair who account a substantial part of their business as a direct result of referrals from fellow attorneys have learned that they need to invest a great deal of time, energy, and money into their cases in order to be successful. “The types of cases we take on can require us to spend anywhere from $50K-$500K to put together our teams,” Steve says. But the referrals continue to pour in because Mike and Stephen win big, resulting in substantial referral fees for fellow attorneys. The firm recently paid out $600,000 to an Orange

filing a lawsuit.

County criminal defense attorney who referred a case to the team; such payments are not uncommon. “I really don’t think that anyone gets more recovery for injury victims,” Steve says honestly. “As a team, we work up the case so hard that the defense settles or we go to

A True Team Mike and Steve credit one of their attorneys, Don Beck, who worked for 20 years for Booth and Koscoff

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the outset of the case in order to form a bond with that client,” Mike explains. And building those relationships is incredibly important to both men. According to Mike, “We represent real people with real problems, not large corporations, insurance companies or other faceless entities. We are fortunate that we can meet with and spend time with the clients that we represent. Doing so is necessary to effectively represent them so that we can understand them and how their injuries have affected their lives. In doing so, we become more emotionally invested in the outcome of their cases. We feel that it is a privilege that people whose lives have been wrecked, have put their faith in us to help them.” For that reason and others, Mike and Stephen are willing to go to lengths far and above what other attorneys may,

trial where we have done very well.” Estey Bomberger have the record to prove it, having won both a $30 million child molestation verdict and an $11 million construction accident verdict in the past year alone. Not surprisingly, as a result Stephen has also been nominated for and won multiple trial lawyer awards in California and San Diego, including the coveted Consumer Attorneys of San Diego 2011 Trial Attorney of the Year. These victories are a testament to the painstaking work that Mike and Stephen are committed to. However, Mike and Steve realize that these victories cannot be attained without the other members of their team. Although they have a fulltime staff of just eight, “we owe a great deal of our success to our team, which we use on almost every case,” Mike says, recognizing investigators Mike Soresi and Gus Herrera; research attorney Mike Eisengart; attorney Ljubisa Kostic; and trial consultants Finlay Boag and Ed Semansky. “We know we could not obtain the results we have without them,” says Mike. Yet Mike and Stephen are still both the backbone and the face of Estey & Bomberger. “We don’t use office staff or investigators to meet with our clients. Steve or I meet individually with each one of our clients from 14

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in an effort to ensure victory for their clients. One of the ways they do so is through their extensive use of focus groups. “The use of focus groups has transformed our practice,” says Steve. “We conduct focus groups sometimes even before determining whether we want to take a case. We do focus groups on specific issues within each case. We also do focus groups in order to prepare for a particular deposition. Our trial verdicts would not have occurred without the dozen of focus groups that we do on each case,” says Steve.

Work Hard and Play Hard For all the serious nature of their business, when it boils down to it, Stephen and Mike’s friendship remains as close as ever. They discuss cases over lunch nearly every day. The heckling of one another, which initially sparked their friendship, remains to this day. All of these years later, they still live just moments away from one another. They’ve both coached their respective childrens’ sports teams together, and their families regularly vacation together, and attend many of the same social activities. While enjoying the practice of law together, both Mike and Steve maintain a fiercely competitive streak, which has aided in their success, since the competition has never been against one another. Mike wrestled for 20 years, coached briefly after college, and was nationally ranked at his weight class while in college. He now cycles almost daily and races to get his endorphin fix. From as early as he can remember, Steve has always


few attorneys, so be it. We like keeping our firm a size that we can comfortably oversee where we can be involved in all cases.” When asked if he is surprised by just how successful Estey Bomberger has become, Mike candidly says “No. We work really hard. But we are surprised at how enjoyable it can be while still being successful.” And if the past is any indication of the future for Mike and Steve, there is a lot more working hard and playing hard in store. So much so, that the two are eagerly awaiting the time when they can sit down and write a memoir of the cross-country trip they took so long ago to get Mike back in law school. “It is fascinating to look back and see when we met to where we have come since then. We are very much the same people we were many years ago, just two best friends driving across country, eating cheeseburgers on a budget and trying to survive Steve driving off the road into snow drifts,” Mike says. n

EXPERIENCE

raced anything he can get his hands on from motocross to off-road vehicles. He currently races the Estey Bomberger sponsored off-road, short-course vehicle which Mike refers to as “the money pit.” Mike recalls when Steve insisted on racing a wheelchair over an obstacle course he had set up in the moot courtroom while in law school. “I admire Steve’s willingness and desire to keep racing given that he never wins,” says Mike. Naturally, with a friendship and partnership running as deep as theirs, it only makes sense that they share a common vision for the future of Estey Bomberger. Unlike other firms, “we do not have a desire for our firm to grow in size,” says Mike. “Our desire is to try more cases and continue to get great results for our clients and the attorneys that refer us their cases. If that means adding a

»»EXPERIENCE:

• Selected 2008, 2009, 2010 and 2011 Super Lawyers (less than 5% of U.S. attorneys) • Received highest rating from Martindale- Hubbell for ethics and legal skills - AV Rated • Both founding partners named National Trial Lawyers - Top 100 Trial Lawyers • Selected for inclusion in Best Lawyers in America® 2012 • Life Members of Multi-Million Dollar Advocates Forum & Million Dollar Advocates Forum (less than 1% of U.S. attorneys)

Estey Bomberger 2869 India Street San Diego, CA 92103 p (800) 810-6113 e mike@estey-bomberger.com e steve@estey-bomberger.com

• Chosen for Martindale-Hubbell Bar Register of Preeminent Lawyers TM (less than 5% of U.S. attorneys) • AAA-Highest rating from State Bar Certified Attorney Referral Service

www.estey-bomberger.com www.esteyandbomberger.com Volume 102, 2012 | Attorney Journal

15


CYBER LIABILITY:

DO YOU NEED TO SAFEGUARD YOUR FIRM AGAINST CYBER CRIMES? by steve brooks

It’s

no secret that cyber crime is

on the rise.

From

identity theft, to

credit card fraud, cyber criminals become more sophisticated by the day.

That

means that data breaches are

skyrocketing and victims of online theft are multiplying exponentially.

Furthermore,

there is an emerging

trend in cyber crime that is slowly starting to make headlines.

That

being that victims of cyber crimes are

no

longer

just

major

credit

card companies or large businesses.

In

fact,

according

to

an

article

Wall Street Journal a whopping 63% of data breaches occurring in 2010 were at companies with less than 100 employees. published in the in

July

of

2011,

There are plenty of reasons that more and more hackers are targeting smaller businesses. But at root it boils down to the fact that smaller businesses generally don’t have the resources to afford the level of security needed to prevent hackers from stealing their sensitive information. Moreover, small companies (particularly those that aren’t in direct sales businesses) generally don’t 16

Attorney Journal | Volume 102, 2012

see the threat of cyber theft as something they need to be overly concerned about. Yet these types of businesses—say for example, law firms—may very well find themselves on the hook for damages caused by cyber theft, or in worse cases, find themselves as defendants in a lawsuit stemming from a breach of information. It is important to note that any sensitive or personal information that is stored on any computer belonging to the firm, or an attorney with the firm, that is leaked or stolen can ultimately wind up costing thousands of dollars and countless hours of headache to you and your firm. That’s without taking into account damages your attorneys or your firm may suffer as a result of being publicly named in any sort of defamation lawsuit. However, due to the fairly new emergence of cyber liability insurance, you can protect yourself and your firm from just such a nightmare. Here are five things you should consider in regards to cyber liability protection. 1. You Have A Lot To Lose Imagine a hacker breaks into your computer and steals all of your client data. Names, addresses, phone numbers,

bank accounts, Social Security numbers, and credit card accounts may be just the tip of the iceberg of sensitive information that is now out in the open. Should any of this information be used to harm your clients, and an investigative audit traces the breach to your server or system, you may be financially liable for damages. In cyber liability speak, this is considered a third-party loss, which specific policies will cover. You also have a lot to lose personally. If your computer stores your firm’s finances, account numbers, credit card information, and so on, your own sensitive information can be stolen, resulting in a “first-party loss.” Again, you can protect against this with a customized policy. 2. You Can Cause A Lot of Damage (and Be Held Accountable for It) As unfair as it sounds, if any computer belonging to your firm sends an email or link containing a virus to another company, you may be financially responsible for the loss of wages or earnings suffered by any party the virus affects. That means that you may have no idea you’ve transferred a virus, but


still have to foot the bill if the cyber trail leads back to your firm. 3. Most Business Insurance Does Not Cover Cyber Liability Unless specifically noted in your business policy, chances are that no financial protection is offered to you if you fall victim to cyber theft. Likewise, the cost of defense needed to fight any lawsuits stemming from a cyber breach is almost certainly not covered under your firm’s policy. In fact, some carriers explicitly state that data and technology risks are excluded from coverage. 4. A Stolen Laptop Can Be Incredibly Costly It’s important to note that not all cyber theft occurs as a result of hacking. Consider a common scenario such as leaving a laptop in the car even just momentarily while running to grab a cup of coffee. In less than five minutes

your laptop is gone, and any private information you had stored on it—yours or a client’s—is up for grabs. Before you can even get the theft claim into your insurance carrier, and before your I.T. specialist can fortify your system with additional security, you can find yourself in a mess of legal problems, and not just stemming from viruses or sensitive information. Although it sounds like a stretch, harmful or malicious postings online by anyone accessing your social media accounts, websites, or blogs can have you in the hot seat, facing potential libel or defamation claims. 5. Cyber Liability Insurance Doesn’t Have to Cost a Fortune As with any type of insurance, the cost of cyber liability insurance will depend upon the size of your firm, the level of risk, and the type of coverage you need. But generally speaking, policies may be

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as little as $1500 for the year. These five item considerations should be deemed a very general overview of the necessity of Cyber Liability Insurance. There are dozens of additional benefits to such coverage. Likewise, there are many more potential pitfalls that may arise from not protecting your firm’s sensitive information. To remove the potential financial trouble that can occur from not being protected, consider that any sort of lawsuit against your firm may very well result in negative publicity, which can have devastating consequences on your future livelihood. An ounce of prevention is often worth a pound of cure, and that’s certainly the case when it comes to protecting your attorneys and your firm from cyber crimes. However, you’ll need to work with a trusted insurance broker to determine just what type of Cyber Liability Coverage is right for you. n

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Attorney Journal | Volume 102, 2012

17


it UP

Stacy Fode Discusses the Beauty of Diversity in Litigation and the Brown Law Group

MIXING I

t was the millionaire Malcolm Forbes who famously encapsulated the true power of diversity when he described it as “Diversity: the art of thinking independently together.” For Stacy Fode, Partner with Brown Law Group, this definition couldn’t be any more accurate, nor could the diversity in her professional life yield any greater rewards. From the internal diversity of the Brown Law Group, to the out-of-the box business principals the firm practices, to the wide range of business litigation and employment law the firm specializes in, to the clients represented by her and her colleagues; variety is indeed the spice of life.

by karen gorden

18

Attorney Journal | Volume 102, 2012


ATTORNEY

OF THE MONTH

2012

Attorney Journal | Volume 102, 2012

19


“Diversity: the art of thinking independently together.” Malcolm Forbes

Diversity as Art

“I was attracted to law (as opposed to other fields) because I liked the idea that I could do something to make a difference in people’s lives and society as a whole. I also liked the variety in law—no two cases are the same—and what I do day-to-day varies greatly, which I enjoy,” Fode says when reflecting on her decision to become an attorney. Since that time, she’s spent her professional career savoring that perfect blend of service and diversity. Fode, who has been with Brown Law Group since its inception in 2003 (and worked at its predecessor firm, Vantage Law Firm prior to that), was the first in her family to obtain a post-college degree, earning her JD from the University of Oregon School of Law. Following her admission to the California Bar in 1998, Fode spent the early years of her career as an Associate with SanDiego based Smaha & Daley, before finding her niche with the team that would become Brown Law Group. “Brown Law Group specializes in business litigation with an emphasis on employment law,” Fode explains. “Our niche is defending companies of all sizes—from small to Fortune 100—in their employment and business litigation matters in San Diego, Orange County, and Los Angeles. We also emphasize what we call preventative law, which involves working with companies to prevent employment lawsuits,” she explains. “My specialty is the representation of business clients in all aspects of employment law cases including wrongful termination, discrimination, sexual harassment, retaliation, whistle blower, and wage and hour matters,” Fode adds. With such a broad range of services, and just seven attorneys comprising the boutique firm, how is that Brown Law Group attracts the type of Fortune 50, 100, and 500 clients that it does? According to Fode, much of it is due to the unique business practices and principals of the firm, under the direction of its Founder, Janice Brown. “We attract incredible attorneys,” Fode says. “Our 20

Attorney Journal | Volume 102, 2012

lawyers have been asked to work in international, national, and large firms, but have chosen Brown Law Group because of its commitment to excellence and its positive work environment,” she adds. As a certified Minority Business Enterprise (MBE) by the National Minority Supplier Development Council and as a Women-Owned Minority Business Enterprise (WMBE) by the Public Utilities Commission-State of California Utility Supplier Diversity Program, Fode is proud that the diversity of the team she works for is often initially what draws in some of the firm’s larger corporate clients. Initiatives to support diversity in corporate business are in abundance, and with good reason. “We give a different perspective,” Fode says simply, in regards to why a firm such as Brown Law Group would appeal to government and national corporate clients alike. But that different perspective isn’t just a by-product of the diversity of the attorneys themselves. It’s also a direct result of how Brown Law Group runs its firm.

Thinking Independently Together

“We are team oriented, rather than in competition with each other,” Fode says of the collaborative effort of the firm. “Our boutique size works to the client’s advantage as every member of Brown Law Group knows the client, and that status of the client’s case,” she adds. Moreover, the team shares a unified commitment to preventative law meaning that whenever practicable, the team helps its clients to avoid lawsuits. However, Fode is quick to point out that clients are attracted to the fact that unlike other firms which may emphasize preventative law, the attorneys at Brown Law Group have substantial trial experience. “We are fierce, but practical advocates, if a lawsuit must proceed,” she explains. It’s no coincidence that the focus on prevention seems more like a business plan than a plan to make-a-profitat-any-cost strategy. And that’s because Brown Law Group is run like a business, something that obviously appeals to its business clientele. “Attorneys submit their billable hours on a daily basis, billing only for time spent in accordance with our clients’ written billing practices. We never charge for faxes or copies. We are extremely organized, to the point of invoices being sent to the client by the fifth day of each month,” Fode explains. “Cases are carefully staffed so that we accomplish our tasks well in advance of the due dates, often with drafts presented to clients a week in advance,” she adds. Because of the team effort and highly efficient systems in place, it’s not surprising that Brown Law Group resolves an overwhelming majority of its clients’ disputes, well before trial is necessary. In fact, through mediation and motion summary judgments, a whopping 95% of Brown Law Group’s cases will never make it to


EXPERIENCE

trial. Estimating the number of disputes prevented altogether as a result of Brown Law Group’s commitment to educating their business clients is frankly impossible. But suffice to say, the referrals the firm receives from satisfied clients, combined with the types of clients the firm attracts, is proof enough of the value of Brown Law Group’s preventative law practices. Given the diverse make-up of the team of attorneys at Brown Law Group, it’s understandable that outside of business hours, the group’s passions and commitments are as diverse as their client base. “Brown Law Group’s attorneys are very active in both the San Diego legal community and give many, many hours to charitable and non-profit organizations,” Fode says proudly. Fode for example, has served on the Board of Directors of the San Diego County Bar Association, as a past president of the Lawyers Club of San Diego, and is an active member in dozens of other professional organizations. She’s also involved in many community associations such as the Girl Scouts, San Diego-Imperial Council, I Love A Clean San Diego (where she is honored to offer pro bono legal services), and served as a coach for the University City High School mock trial team. A rewarding professional career, coupled with a fiercely strong commitment to the benefits of diversity, Fode’s natural thirst for variety is sated by blending the personal with the professional. Married to Dr. Matthew Spydell, an oceanographer at Scripps Institution of Oceanography, Fode is a proud mother to a 5year-old daughter and is eagerly anticipating the arrival of her son in early 2012. In her time away from work, Fode enjoys time at the beach, yoga, spending time with family and friends, and mentoring other women lawyers, particularly those who are balancing the demands of being a working mother. Because that’s who she is; an attorney as inherently diverse personally as the team she collaborates with professionally at Brown Law Group. n

»»EDUCATION:

• University of Oregon School of Law J.D., 1998 • University of California, Santa Barbara - B.A., Law and Society, cum laude 1994 • Admitted to the CA Bar: 1998

»»AWARDS:

• 2009 recipient of the San Diego Business Journal’s Women Who Mean Business Award • Semi-finalist for the San Diego Daily Transcript’s 2007 Top Attorneys • Finalist for the San Diego Business Journal’s 2005 “Women Who Mean Business” Award

»»PRESS & MEDIA:

Stacy L. Fode 600 B Street, Suite 1650 San Diego, CA 92101 619.330.1700 fode@brownlawgroup.com

• Ms. Fode has been a speaker on employment and diversity related topics and has published articles on these subjects. She has appeared on television segments relating to Sexual Harassment, Wrongful Termination and Recent Developments in Employment/Labor Laws

»»MEMBER

• San Diego County Bar Association • American Business Trial Lawyer’s Association • American Bar Association • California Women Lawyers • Past president of the Lawyers Club of San Diego

Attorney 2011Attorney Edition Journal |Journal Attorney | Volume 21 Journal 102, 2012 21 21


R O R R E F O T R A E H T Y R E V O C RE ulcher

h by norm

W

hen you make a mistake that puts a client behind the eightball, your appropriate response can salvage— and even strengthen— the client relationship

When Alexander Pope wrote, “To err is human, to forgive divine,” he probably hadn’t just gotten off the phone with his attorney. If he had, he might have tacked on this qualifier: “. . . unless the erring party has an ‘Esq.’ after his name and whose hourly rate is greater than the GDP of Cambodia.” I can’t say why for sure (although I have a few theories), but there’s something about interacting with an attorney that often exposes people’s dark sides. Consider an otherwise kind, charitable soul whose closest-ever brush with 22

Attorney Journal | Volume 102, 2012

violence grew out of a brief debate over the best key in which to sing “Amazing Grace.” But tell them that their lawyer made a mistake in handling their matter, and in the bat of an eye they become about as rational and forgiving as Cujo. Like it or not, you are human and, try as you might to avoid mistakes, you are doomed to make them. The big question is: How do you respond when you make a mistake that affects a client? It’s worth considering—in advance— because there may be no more important factor in whether you hang on to your clients and how successful you are in growing your practice. Range of Errors, Reactions As an attorney, your potential for committing errors knows no bounds. Your mistakes can cover the entire spectrum, from No Big Deal (missing a typo, being late for a meeting, etc.) to Screwing the Pooch (recording a lien in Santa Cruz County, Arizona, instead of Santa Cruz County, California; thinking the trial was set for two weeks from yesterday, not yesterday, etc.).

From a client relations standpoint, the gravity of the blunder may not be as important as the client’s reaction to it. You probably have clients who, if you told them that you’d made a small goof and that their $10 million claim had been thrown out, would say, “Oh, well, we all make mistakes,” and others who, on learning that the demand letter you promised by noon won’t be ready until 12:15, report you to the Bar. Even though no two mistakes, or your clients’ reactions to them, are the same, you should still develop an errorrecovery procedure that you can follow when the stuff hits the fan, or looks like it’s about to. Beat Your Client to the Punch If you find out you’ve made an error before your client does, and if there is any chance that he will learn about it whether you tell him or not, do the smart and honorable thing: tell him before he learns about it on his own or from someone else. This takes guts, but it’s a lot better than sitting around with the Sword of Damocles hanging over your head, cringing whenever the phone rings,


and feeling around under your steering wheel before every start-up, wondering if the client knows what you’ve done and what he’s going to do to you when he finds out. Here are some benefits to full disclosure: • After he finishes swearing at you and telling you how much he’s going to enjoy reading about your license being yanked, he may give you credit for being courageous. Sloppy and incompetent, perhaps, but courageous. • Conversely, if you let him find out on his own, a certain amount of time will elapse between discovery and response. During that period, he can work up a pretty uncharitable attitude toward you that, by the time you get to discuss your mistake with him, may be irreversible (especially if he thinks you’ve been ducking him). • If you alert your client to the mistake, you can tell him, in appropriate detail, what you’ve done to make things right (if that’s possible), and/or you can propose some method of atonement, such as a fee adjustment, free services, an offer to help out around the house, etc. (Caution: Don’t be too quick to make such offers. If the client turns out to be less upset than you expected, you may needlessly give away the store. Further, your resolution plan should not include lavish gifts, cash, prostitutes, or other phony attempts to get back in his good graces.)

Fix the Error, If You Can Make fixing the error your top priority. The longer the problem goes unaddressed, the longer the client has to worry, think evil thoughts about you, and memorize the names of professional liability attorneys. Face The Music If the magnitude of the error, or the client’s reaction to it, warrants a face-toface meeting, break the news in person. Offer to meet at his home or office. Meeting at your office may not be a good idea—it’s bad enough that you’ve made a mistake at his expense; don’t make matters worse by making him come see you. Besides, he’s less likely to bust up the furniture if he’s in his own home or office, and if he starts screaming, there won’t be other clients within earshot. Accept Responsibility No matter who actually committed the error, you must be the responsible party. If you made the mistake, it’s your fault. Likewise, if your secretary or paralegal or clerk or the mailman or sunspots caused the problem, it’s your fault. You’re the attorney, you make the big bucks, and you’re the one who’s supposed to be getting your clients out of trouble, not digging a deeper hole for them. Claiming, “Hey, it wasn’t me, it was my secretary,” isn’t going to calm him down. (“Oh, it was your secretary. Why didn’t you say so? Here, let me call my other lawyer right now and tell him to just forget about that silly old lawsuit.”) Don’t Be Defensive This is a close cousin to “accept responsibility.” The client is less interested in why or how the mistake was made than in what you’re going to do

about it. Thus, explaining that the error was caused by your working too hard or too late, by incompetent help, by your crack habit, etc., is a waste of breath and will only make him madder. Say, “I’m sorry.” An apology won’t make the problem go away, but any resolution of the fiasco should include your looking your client in the eye (or in the receiver) and telling him that you’re sorry. But don’t grovel, unless you think the sight of you down on your knees at his front door, blubbering and begging for one more chance, will make him forget about your foul-up. Also, be careful about putting your apology in writing. You don’t want to give your client something he can pull out and re-read when he’s drunk or in a litigious mood. Respect the Client’s Concern If the client pitches a major fit over your mistake, let him know that you feel nearly as bad about things as he does. If he feels terrible, you feel terrible. Trying to cheer him up or make him think it’s not that big a deal will likely backfire. Let him decide when it’s no longer that big a deal. On the other hand, if the client takes your mistake in stride and wants to get on with things, let him. Even if you’re still embarrassed and upset by the error, don’t keep bringing it up and saying how sorry you are and how you don’t deserve to live. He might eventually agree with you. Don’t Hang Your Client Out to Dry. If your mistake lands your client in a ditch with someone else—a lender, a buyer, his bookie—make contacting that person and accepting the blame a part of your proposed resolution. There are at least four good reasons to make that offer: It’s the right thing to do, and maybe Attorney Journal | Volume 102, 2012

23


it will assuage your conscience a little bit. Your client will probably appreciate your trying to get him off the hook, and if he ever speaks to you again he may even tell you so. You are likely to use less critical and colorful language to describe your error, your character, and your lineage than your client might use. Ironically, your candor and courage may make a net favorable impression on the third party. Instead of being known only as a dangerous idiot who nearly screwed up your client’s life, you may be the only attorney that person knows who demonstrates honor and integrity and is willing to own up to his mistakes. Don’t Keep Your Error a Secret If the problem is a major one, and if it carries the potential for big problems for you and/or the firm, get the perspective of trusted colleagues who may be more

skilled in damage control and malpractice avoidance than you are. Even if the problem doesn’t hold grave consequences, consider discussing the error with any other attorneys and staff who are likely to come into contact with that client. Filling them in may keep them from saying or doing something out of ignorance that may only make matters worse. Conclusion At the very least, adequate error-recovery skills may salvage a client relationship that otherwise would have gone down in flames. Moreover, attorneys who react well to their own errors know that an appropriate response can not only save but actually strengthen their ties with a client. Honest. n

Across the globe. Across the country. Across the kitchen table. Ryan Ashton Financial Advisor 1200 Prospect Street, Suite 500 La Jolla, CA 92037 858-729-5251 800-231-9628 ryan.ashton@ubs.com

NORM HULCHER (HULCHER & HAYS, LLC) IS A PHOENIX-BASED LAW FIRM MARKETING CONSULTANT (WWW.HULCHER.NET)

As you look to protect and grow your wealth, it’s important to work with a firm that has a unique global perspective, translated through the relevant and trusted advice of a Financial Advisor. Together, we’ll craft your own unique plan, and work with you every step of the way to help you achieve it—on your terms. Advice you can trust starts with a conversation.

ubs.com/fs As a firm providing wealth management services to clients, we offer both investment advisory and brokerage services. These services are separate and distinct, differ in material ways and are governed by different laws and separate contracts. For more information on the distinctions between our brokerage and investment advisory services, please speak with your Financial Advisor or visit our website at ubs.com/workingwithus. Neither UBS Financial Services Inc. nor any of its employees provides legal or tax advice. You should consult with your personal legal or tax advisor regarding your personal circumstances. UBS Financial Services Inc. is a subsidiary of UBS AG. ©2011 UBS Financial Services Inc. All rights reserved. Member SIPC. 31.17_Ad_7x4.875_VR1220_AshR

2431.17_Ad_7x4.875_VR1220_AshR Attorney Journal | Volume 102, 2012 Created

09/02/10

Dimensions Inks

7x4.875" cmyk


Attorney Journal 25


GOOD OLD-FASHIONED SERVICE

(MEANS DOING MORE THAN IS EXPECTED)

JEFFREY CHASAN ENSURES THAT ATTORNEYS GET MORE BANG FOR THEIR BUCK by jennifer hadley

p hotograp hy by Bronson Pate

A

JOURNAL

FEATURED REAL ESTATMEOADVISOR OF THE

NTH

2012

ny attorney knows that experienced, wellrounded, expert testimony can make or break a case for their client. Often times it is a single expert’s testimony in a legal dispute that becomes the ‘ace-in-the-hole’ for the attorney and their clients. The reason is simple. Experts bring to the table information that neither the attorney nor the client can testify to with the same degree of certainty as someone who has made it their life’s work to study and understand highly specialized subject matter. No matter how hard an attorney or their client tries, they simply “can’t know what they don’t know.” It is precisely this adage that has made Jeffrey Chasan, Senior Vice President of Grubb & Ellis, such an incredible ally for attorneys for more than 25 years. Volume 102, 2012 | Attorney Journal

27


Value Added Expertise

Chasan, who holds an MBA from Pepperdine University, has been working with attorneys since the start of his career. Originally retained by clients to assist in locating, negotiating, and securing desirable commercial office space for his clients, he inadvertently began carving a niche for himself as the commercial real estate broker of choice for countless law firms and attorneys. He achieved this by becoming a true expert in a field that is indeed highly specialized. In his early years in the real estate industry, it was Chasan’s meticulous attention to detail that drew in attorney clients. He explains that while working with a small business owner, for example, the thoroughness with which he negotiated leases, to the extent that additional clauses were written into lease agreements to protect them from potential pitfalls that they didn’t even know existed, his clients’ attorneys took notice. When reviewing the final contracts for clients prior to their signing the lease, it was impossible for attorneys not to notice just how methodical and detailed Chasan had been in negotiation. Soon enough the attorneys themselves were coming to Chasan to secure new office space for their firms. As the years passed, Chasan continued to evolve as an expert. In addition to representing tenants, Chasan would ultimately become a real estate company owner, 28

Attorney Journal | Volume 102, 2012

where he then sat on the flip side of the coin from those tenants he had represented. This only served to give him an even deeper understanding of commercial real estate transactions, as he was able to clearly identify loopholes that would ultimately benefit the landlord, often at the detriment of the tenant. Yet, he still had room to grow as an expert, and that he continued to do, utilizing his expertise in other fields of specialty at no cost to the client, but to tremendous benefit. With a background in construction and design in place, Chasan was clearly becoming much more to clients than merely a tenant representative. He sat in on construction planning meetings for clients. He provided suggestions conducive to the specific needs of law firms including at times even assisting with designing reception desks for firms, always taking into consideration the firm’s budget, cost control, and growth plan. Time after time, he helped clients save money in areas that other commercial brokers just weren’t able to, because of his well-rounded background in the multi-faceted areas of commercial real estate. These additional services he provided at no additional charge to the client. In addition to offering his expertise in these areas, Chasan brought added expertise in the field of IT and telecommunications to his clients’ tables. When working with construction companies in a designated commercial space, for example, he culled from his years of experience


working with MCI and many other telecommunication companies, to offer suggestions on wiring, pointing out potential technological needs for the firm moving into the space.

More Bang For Your Buck

To Chasan, offering his expertise is just part of the fun of providing his clients with the best possible advisory services, which frankly makes him an anomaly in the field of commercial real estate brokering. “I’ve been negotiating for over 25 years. I’ve been on the landlord’s side. I’ve formed my own companies and signed leases for my own office spaces. I’m not interested in going out, finding a space, negotiating and being done. I become my clients’ advisor and advocate in many of the areas of commercial real estate.” It’s certainly one thing to say this, but do Chasan’s claims stand up under examination? Absolutely. In fact, he not only uses his expertise to protect his own clients, but he uses his expertise to educate attorneys he’s never worked with, and may never work with. As a regular seminar speaker for the San Diego Bar Association, and a contributor to the association’s published materials, Chasan has spent countless hours teaching attorneys how to protect themselves from things they just might not know. “The small law firm is the biggest harm to itself,” when it comes to securing office space, Chasan says. To that end he regularly presents information to attorneys on potential consequences that may arise from trying to secure their own space. It’s not that attorneys aren’t seasoned in reviewing contracts, he assures. It’s just that there are things that one would only know through painstaking research and experience, time that many attorneys don’t have. “How landlords measure space is a big issue,” Chasan says. “How buildings are measured, the rentable versus usable space, operating expenses, tenant improvements, and the underlying tenant protection mechanisms available during that specific market cycle, are all multi-faceted aspects that people just don’t know to ask about their lease,” he adds. Moreover, it is not often easy to identify the hidden agendas of the landlords. “Will the office be remeasured in a few years? These are the things that need to be asked and need to be included in the contracts,” Chasan explains. And these are precisely the types of things he spends his spare time teaching attorneys through his position as an expert consultant for the San Diego Bar Association. But to Chasan, it’s all in a day’s work. “I care,” he says simply about working with attorneys. “I will be as involved as a client wants me to be. If you need a furniture vendor referral, I’ve got it. If you need me to sit in on construction meetings on your behalf because

you’re opening an office in San Diego, and you’re in Minnesota, I’ll do it. I do this every day, and I want to do more than just good work for my clients. I care about my clients and the results. I want my clients to come back to me, and so far this has worked really well. I have clients from almost 25 years ago who come back to me to assist them with their leases.” Although Chasan doesn’t charge extra for the additional services he offers, his standing as a true expert in the field of assisting attorneys and law firms with securing the perfect space for their practice has made him an absolutely invaluable commodity to countless attorneys throughout San Diego.

Jeffrey Chasan Senior Vice President Grubb & Ellis Company 4250 Executive Square, Suite 500, La Jolla, CA 92037 Office 858.875.3610 • Cell 858.395.5740 Fax 858.875.3636 jeffrey.chasan@grubb-ellis.com www.grubb-ellis.com CA License # 01067885

Volume 102, 2012 | Attorney Journal

29


WHAT TO SAY WHEN THE CLIENT SAYS,

“I WANT TO

THINK

ABOUT IT” by david ward

W

hen prospective clients tell you, “I have to think about it” or “I have to talk to my [spouse],” do you know what to say? Here’s how to overcome those common objections and “close” more clients. First, when the appointment is made, ask if they are married or have a significant other and if so, tell them they both need to be present at the appointment. If they balk, ask if they can make a decision to go ahead without their spouse, and if they say yes, ask again! Asking, “Are you sure?” will often cause them to admit they probably need to have their spouse with them. Second, before you present your “solution” to their problem, take some time to discover what it is that they want to accomplish. Ask questions about why they contacted you and about their most pressing 30

Attorney Journal | Volume 102, 2012

concerns or objectives. Only then should you show them how your services can help them get what they want. When they tell you they want X and later say, “I have to think about it,” you can remind them that they told you they wanted X and ask them, “Has that changed?” or “Did I misinterpret?” By involving them in the process right from the beginning, they will tell you what you need to do or say in order to get “the sale.” Third, when they say, “I have to think about it,” ask them WHAT they have to think about. Make them tell you. Remind them of the benefits they get when they go forward, and what they lose or risk losing if they do not.  When someone says they have to think about it, money is often the real issue. Don’t hesitate to ask if this is what is causing them to hesitate.

When they admit that it is, make sure there are no other objections by asking, “So, if it wasn’t for the money, you’d go ahead?” Or, “If we can work out the money part, would you go ahead today?” If they have previously admitted that they want the benefits you offer and have no other objections, a payment plan may be all you need to offer to get them to go forward. Finally, you can increase your closing percentage by pre-qualifying prospects before they come to see you. In addition to asking about their ability to make a decision (with or without their spouse, partner, superior, or committee), you can give them an idea of what your services may cost and see if that’s going to be a problem. A few hours spent with books on sales can provide more ideas for closing more prospects. A good one to start with is Tom Hopkin’s classic,


“How to Master the Art of Selling”. Okay, so the client is sitting in your office and it’s time to sign your retainer agreement. Does she? Are you “closing” as many clients as you would like? If not, here are seven things you can do to improve your

percentages: 1. Have your retainer agreement out, in advance. If you hide it and whip it out when it’s time to sign, people get nervous. Put them at ease by letting them get used to seeing the paperwork sitting on your desk during the consultation. You should also point to the documents with the pen you will ask them to sign with. Let them get used to seeing it out and open. 2. Assume they will sign. Everything you do and say should be consistent with them becoming your client. Say, “When we get your case started…” not, “If you decide to hire me….” Here are examples of an assumptive close: “Go ahead and put your name here and I’ll get started on this immediately.” “Where do you want me to send your copies of the documents we file

in your case?” “I have everything I need; how soon would you like us to get started working on this?” 3. Have them fill out the “easy” stuff first. When it’s time to sign, give them something to fill out or something non-threatening to sign (i.e., authorizations), first. Let them get into the habit of signing; it will be easier to go with the flow when you present your retainer agreement. 4. Ask a question, break eye contact, start filling out the agreement. When it’s time to sign, ask them, “Where would you like us to send your copies?” or “What is your social security number?” Then break eye contact, look at the agreement, pen poised to fill it out, and wait for them to speak. Don’t utter another word–wait for them to respond. When they do, fill out the agreement for your new client. 5. Don’t ask them to “sign.” Words are important, and the wrong words can intimidate. Instead of asking them to “sign the contract,” say, “I need you here” or “put your name on this line.” 6. Let them choose. Instead of choosing between (a) hiring you, and (b) not hiring you, give them two (not more than three) choices that are all good for you: “So do you want to get started with the trust AND the lease right now or just the trust?” “Would you prefer to take care of

all of this now or half now and half in 60 days?” “Would you like to start on Tuesday or is Thursday better for you?” 7. If they hesitate, remind them of their pain. If you start filling out the agreement and they say they’re not sure or not ready, remind them about why they came to see you in the first place. “You did say you wanted to protect your children, didn’t you?” Most people don’t shop and compare lawyers. If someone hesitates to sign, the odds are they either can’t afford you or they don’t want to spend the money. If they can’t afford you: a. Show them how they CAN afford you (payments, credit cards), or b. Offer them a lower-cost partial solution (another service), or c. Refer them to a young colleague. If they don’t want to spend the money, it’s your fault, not theirs. As a professional advisor, your job is to persuade people to take action that you believe is in their best interests. In fact, you have a duty to do so. This means you must use all of your energy and creativity to show them the benefits of going forward, as well as the detriments if they don’t.  Prove to them that the cost of NOT hiring you is far greater than what you charge. The burden of proof is yours. n

BY DAVID WARD David Ward learned how to market his legal services the hard way. He was sworn in at 23 and started his practice shortly thereafter. He had no experience as a lawyer, no business contacts, no secretary, and no clients. After five years of mistakes and frustration, he learned a few marketing ideas and put them to work. Eventually he became really good at marketing and his practice took off. He practiced for more than 20 years and now runs two businesses from home. David can be reached at: The Attorney Marketing Center, o: 949-888-2800, e: info@attorneymarketing.com

Attorney Journal | Volume 102, 2012

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Attorney Journal | Volume 102, 2012

Attorney Journal, San Diego Edition, Volume 102  

Attorney Journal, San Diego Edition, Volume 102

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