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2011 Edition | Attorney Journal

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2 0 1 1 E d i t i o n — N o .101

TABLE OF CONTENTS features

Executive Publisher Brian Topor

2011 E d i t i o n – NO .101

Editor LeAnn Gerst Creative Director Julianne Gleaton Circulation Angela Watson Photography Bronson Pate Vinit Satyavrata

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8

TREY RYDER

8 What are Law Firms Doing to Develop the Next Generation

10 Attorney of the Month WILLIAM M. BERMAN

WEBMASTER S. Chorng

18 What’s Our Deal?

PAMELA DONISON

jan mills spaeth, Ph.D. & rosalind r. greene, J.D.

30 Investigative Series: What’s in a Name? JENNIFER MANNINO

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Editorial Inquiries 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

28 The Rambling Witness

Advertising Inquiries info@AttorneyJournal.us

DAVID MAISTER

26 Revolutionary Thoughts: Revamping Family Law

Staff Writers Jennifer Hadley Nalen Green Karen Gorden Contributing Editorialists Jennifer Mannino Cordell Parvin Trey Ryder David Maister Pamela Donison Jan Mills Spaeth, Ph.D. Rosalind R. Greene, J.D.

CORDELL M. PARVIN

4 17 Fatal Marketing Mistakes

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Address Changes Address corrections can be made via fax, email or postal mail. 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 2011 Edition | Attorney Journal 3


Lawyers

who rely on traditional marketing methods

are fast discovering that many no longer work.

Lawyers

“time-proven

methods”

could dramatically improve

their marketing results by avoiding the following mistakes and heeding this updated advice.

MISTAKE #1: Relying on referrals. When you depend on referrals as your sole source of new business, you allow middlemen to control your flow of new clients. You may discover that whether you receive referrals has nothing to do with your knowledge, skill or experience. Instead, it may be based on your ability to return the referrals. ADVICE: In addition to referrals, make sure your marketing program attracts inquiries directly from prospects. This allows you to manage your marketing program, rather than relying on third parties over which you have little or no control.

17 Fatal Marketing Mistakes by trey ryder

Trey Ryder specializes in Education-Based Marketing for lawyers. He offers three free articles by e-mail:  11 Brochure Mistakes Lawyers Make, Marketing Moves Most Lawyers Miss, and 13 Marketing Misconceptions That Cost Lawyers a Fortune.  To receive these articles, send your name and e-mail address to trey@treyryder.com and ask for his free packet of marketing articles.

MISTAKE #2: Depending on media exposure. Without question, articles in the print media and interviews on radio and television can help you attract new clients. But many lawyers rely on publicity as their entire marketing program. True, exposure can increase your credibility. But, often, exposure by itself isn’t enough. Lawyers routinely report, “We were very happy with the number of articles about our firm, but we didn’t get a single new client!” In addition to exposure, you need to interact with prospects. ADVICE: Make sure your marketing program brings about interactions between you and your prospects, such as over the telephone or in person. Interaction is a critical step in the marketing process—and the step most law marketing programs overlook.

MISTAKE #3: Relying on networking groups as a primary source of new business. Networking is a time-consuming exercise in meeting prospects and cultivating referrals. And while networking may bear fruit, lawyers often underestimate the time required. ADVICE: Pursue opportunities to meet and talk with genuine prospects, but don’t put networking above other marketing strategies.

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Attorney Journal | 2011 Edition


MISTAKE #4: Competing on low price. When you lower your fee to attract new clients, (1) you undermine your credibility because clients conclude your services were not worth what they previously paid, (2) you attract clients who will leave you when competing lawyers offer fees lower than yours (clients who are loyal to the dollar are never loyal to you!), and (3) you’ll probably lose money because the cost of attracting a volume of new clients is often greater than the profit you can earn from those clients. ADVICE: Instead of competing on price, compete on value. You’re better off being the most expensive lawyer in town and having prospects appreciate your knowledge than being the cheapest lawyer and having prospects question your skill.

MISTAKE #5: Delivering an incomplete marketing message. Many lawyers believe common marketing methods don’t work because those lawyers didn’t get the results they wanted. But usually the problem isn’t the marketing method, it’s the message. If your message lacks even one essential element, your efforts could fail. An estate planning lawyer delivered a seminar to 84 prospective clients, yet no one came into his office for a free consultation. After I reviewed his presentation, we added less than five minutes of information to his program. At his next seminar, 10 of the 11 couples in attendance requested appointments. ADVICE: Before you implement your marketing program, make sure you create a complete, competent marketing message. Without a powerful message, your marketing program is doomed.

MISTAKE #6: Not effectively reaching your target audience. A tax attorney who represents doctors before the IRS advertised his services in a weekly shopper newspaper distributed free to homes. Not surprisingly, he was disappointed with the response. Before running the ad, the lawyer could have saved his $2000 investment had he asked himself, “Will doctors look for a tax attorney in a free weekly newspaper?” I don’t know about doctors, but that’s certainly not where I would look. ADVICE: Choose different methods that you believe will reach your prospects. Then test each method on a small scale before you invest serious dollars. This way you’ll know which method most

effectively reaches your target audience and how well it attracts the clients you want. MISTAKE #7: Making decisions by committee. The quality of a marketing decision is based on how long it takes to make the decision and how much the decision has been watered down by compromise. One person working alone has the potential to make good decisions. When two people work together things begin to bog down. And if you’re waiting for three people to agree, well, don’t hold your breath. Marketing is like football. Can you imagine how long it would take if the entire team offered their ideas and everyone had to agree before they could make the next play? ADVICE: Choose one quarterback to direct your program. If you don’t get the results you want, change strategies or change quarterbacks. But don’t compound your quarterback’s problems by bringing in more people to help make decisions.

MISTAKE #8: Not taking the leadership position in your market. When prospects perceive you as the leader in your field, you have a substantial advantage over other lawyers. Yet, many marketing programs aren’t designed to seize this powerful, profitable position. ADVICE: Look at your position in the marketplace. From your prospects’ point of view, is any lawyer clearly the leader in that category? If not, design your marketing program so you take control of your niche. If that niche is already dominated by other lawyers, create a new category for yourself. Then promote the category so prospects see you as first in that new area. One of my clients created a new category and successfully dominated his niche for five and one-half years, when he decided to pursue another area of law. You gain an extraordinary advantage when prospects perceive you as the leader.

MISTAKE #9: Not delivering your marketing message until prospects come into your office. Lawyers usually have no problem persuading prospects to hire their services once the prospect is in their office. But getting prospects through the door is another matter.

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ADVICE: Develop materials you can send to prospective clients. Then create a marketing program that uses the print and broadcast media to attract inquiries from prospects who ask to receive your information. When prospects call your office, you respond by mailing your packet and adding their names to your mailing list. This allows you to put your marketing message into their hands regardless of their location, rather than waiting for them to come to your office. If your materials are powerful and persuasive, you’ll find that prospects call you and request appointments. One of my lawyer clients received 426 calls from prospects after offering his materials on a radio talk show, over 500 calls after a mid-day television news interview, and another 400 calls after an article appeared in a local newspaper.

MISTAKE #10: Not marketing to your practice mailing list. Your mailing list is your own personal area of influence. It should contain the names of all your past clients, current clients, prospective clients and referral sources. ADVICE: Make sure you mail your newsletter at least monthly. And don’t think that you must make your newsletter an 8- or 16-page treatise. A simple educational letter of even one or two pages works fine. Your newsletter’s size is not nearly as important as how often you mail it and the value of the information you present.

MISTAKE #11: Taking marketing shortcuts. Lawyers who achieve success often trim back their marketing programs hoping to save money by eliminating the bells and whistles. What they often don’t realize is that many of the so-called “bells and whistles” are not bells and whistles at all. They are the essential components that make their programs work. An attorney hired me to refresh his marketing message, which had grown stale. When we kicked off his new program, he attracted 247 prospects to five seminars, an average of 49 people at each program. His calendar filled up almost overnight. After six months, he took his marketing in-house and started cutting corners. Within 90 days, his results were as dismal as they had been before he called me. ADVICE: When you shortcut your marketing on the front end, you slash the number of new clients 6

Attorney Journal | 2011 Edition

on the back end. If you want to streamline your marketing and determine if any steps might not be needed, start slowly and track results. Be careful not to cut away steps responsible for your success.

MISTAKE #12: Not making marketing a priority. For most lawyers, practicing law is their highest priority. When they get busy, they often reduce their marketing efforts because they need that time to work on their clients’ behalf. They operate under the false hope that their momentum will attract new business long into the future. But when they cut their marketing efforts, they actually shift their marketing into neutral. As a result, inertia takes over and things slowly coast to a standstill. ADVICE: Make marketing a priority for you or someone in your office. Or hire an outside consultant so you make sure the work gets done. Don’t turn your marketing on and off like a light switch. Keep your program in gear so you always attract an ongoing flow of new clients.

MISTAKE #13: Writing an intricate marketing plan that becomes impossible to carry out. Many marketing plans look like jigsaw puzzles with dozens—or even hundreds—of pieces. And while the plans might work, most lawyers and their staffs don’t have the hours needed to carry out the plans. ADVICE: Make sure your marketing plan is built on simple steps that have proved to be effective and efficient. In my 33 years in marketing, the most profitable, efficient and effective method I’ve found is my method of Education-Based Marketing.

MISTAKE #14: Never completing—and therefore never implementing—your marketing plan. Many lawyers get so caught up in gathering facts that they never stop designing their plan. They collect data, add more steps, collect more data, revise their plan, collect more data.... ADVICE: Implement your plan at the earliest possible moment. A poor marketing plan that is up and running is far more profitable than the “perfect plan” that never gets off your hard drive.


MISTAKE #15: Delaying your marketing program until your cash flow improves. More often than not, lawyers who use this reason never start marketing because they aren’t aware that their logic is backwards. Their cash flow won’t improve until they start their marketing program. ADVICE: Maintaining an effective marketing program is the most important investment you can make. Why pay for an office and staff if you don’t have enough business to justify the overhead? Start your marketing program now so you have an ongoing flow of new clients.

MISTAKE #16: Carrying out a marketing program that does not achieve the five essential steps for success. Your marketing program must: (1) establish your credibility (2) identify how you’re different from other lawyers (3) generate interactions between you and your prospects (4) gain your prospect’s commitment (5) maintain your client’s loyalty. Programs that don’t achieve all five steps will fail. ADVICE: Any time you evaluate a marketing opportunity, consider how well that method will accomplish these steps.

MISTAKE #17: Promoting your services. When you promote your services, you take on the role of a salesperson hawking his wares. This method, called selling-based marketing, undermines your credibility and causes prospects to question whether they can trust you. ADVICE: Instead of promoting your services, promote your knowledge by educating prospects. EducationBased Marketing gives prospects what they want, information and advice, and removes what they don’t want, a sales pitch. It attracts prospects who come to you because of your knowledge, skill, judgment, and experience. 

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It’s

almost a brand new year.

What

are law firms doing

to develop the next generation of successful lawyers and rainmakers in

2012

and beyond?

The

answer to that

question depends in part on how the firm is doing in the current economy and whether the firm views the development efforts to be a cost or an investment.

What are Law Firms Doing to Develop the Next Generation? Developing Successful Lawyers and Rainmakers by cordell m. parvin

Cordell M. Parvin built a national construction practice during his 36 years of practicing law. In 2005, he left the firm and started Cordell Parvin LLC. He now works with lawyers and law firms on career development and planning and client development. The Practical Lawyer reprint. He may be reached at 214-866-0550 or cparvin@cordellparvin.com.

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Many firms, which have historically had institutional clients, have cut back on their development of the next generation. Those firms view development of their next generation as a “cost” and as soon as the economy deteriorated, developing the next generation was one of the first things to be cut. Those firms are no longer hiring outside trainers and coaches to work with their associates. Instead, they are turning to their own partners who do not have time for training and coaching because of the increased pressure to get their own billable hours. In those firms, instead of focusing on the next generation of successful lawyers and rainmakers, they are laying off the next generation in record numbers. I am fortunate to teach and coach lawyers in many entrepreneurial law firms. One great example is Fox Rothschild, a Philadelphia-based firm with offices along the East and West Coasts. Fox Rothschild’s firm leaders, and leaders of other entrepreneurial firms, believe that developing their next generation of lawyers is a sound investment. I know from my own work with those firms that the return on the investment is substantial. “We believe in investing in our associates and young partners. Our investment has made them more successful and created more of a team spirit in the firm. Several associates and partners who have participated have greatly increased their business and brought new clients to the firm. As a result, we have a waiting list of lawyers wanting to participate.” Jean A. Durling, Fox Rothschild’s Chief Talent Officer. Entrepreneurial Firms Realize: •Business development will be natural for few and a challenge for many. •They need to focus on raising the level of emotional intelligence. •One size does not fit all (they customize the training to the individual). •They need to teach associates to set goals and prepare a plan. •Career and client development training that is interactive and experiential is more effective. •Training and development that includes follow-up individual coaching is significantly more effective than one-shot training programs. •Training and development programs for junior associates are designed differently than programs for more senior associates and junior partners.


Developing the Next Generation Many entrepreneurial firms begin developing the next generation when they arrive at the firm for orientation. In that first week at the firm, young associates are taught how to start right for career success. Junior associates are told that their primary task is to learn the skills to become the best lawyer they can possibly be. They set specific learning goals: “At the end of my first year, I will have learned to _______.” They learn how to prepare a development plan with goals on what they want to learn. Junior associates are encouraged to treat their supervising attorney as their client and practice their “people skills” by asking good questions and listening to that supervising attorney. Senior associates are taught to become more visible and credible to a target market. The training includes writing and speaking to get hired, networking, building trust and rapport, asking good questions, and listening. Coaching Senior Associates Fox Rothschild and some other entrepreneurial firms begin

individual and group client development coaching programs with their senior associates who will soon be eligible for partner. The firms that have experienced the greatest return on investment have chosen the right candidates to participate in their coaching and training program. They know that the lawyers who “need” coaching the least will put the most into it and will get the most out of it. The training and coaching programs in those entrepreneurial firms include both group and individual activities. Lawyers set group and individual goals and action plans to achieve them. The group goals and activities are designed to build a team and to hold each lawyer on the team accountable. The individual goals and activities recognize that each lawyer has unique skills, dreams, and challenges. Conclusion Is developing your next generation of outstanding lawyers a “cost” to be cut every time the economy dips, or is it an “investment” in your firm’s future? How you answer that question will determine your approach to developing your next generation of successful lawyers.n

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Attorney Journal | 2011 Edition


On Top of his Game:

WILLIAM M.

BERMAN I

by jennifer hadley

ph oto gra phy by Bronson Pa te

n the game of life, there is often a common driving force shared amongst those who achieve the kind of success that results in earning the status of “expert.” That force is, unequivocally, a relentless commitment to hard work. In the case of William M. Berman, founding and managing partner of Berman & Riedel, LLP, this commitment to hard work has earned him the wide-reaching reputation as the “go-to guy” in both his legal career and in the playing field of life.

launched his own personal injury firm, and within 2 years he’d accomplished a careerdefining achievement. With a single case, he earned himself a position of status as one of the top elder abuse attorneys in the State of California. The status was achieved through a wrongful death case that involved a 76year-old resident in an elder care facility. Berman pursued it under relatively new statutory law designed to protect the elderly against the facility and its ownership group. For 12 months, Berman Makings of an MVP worked tirelessly for the victim’s family. The product of a modest upbringing in Although hard work didn’t intimidate Los Angeles, Berman was the first member Berman in the least, that doesn’t mean he of his immediate family to graduate from missed the opportunity to make his case college, earning his Bachelor’s even stronger by recruiting of Science from Arizona State expert co-counsel to assist University, with a Major in him. On the verge of trial, Justice Studies. The hard and recognizing the strengths ATTORNEY undergraduate work paid off, of the case, he pulled out OF THE MONTH and he was soon accepted all of the stops for his client 2011 into California Western in an effort to provide his School of Law in San Diego, clients with the strongest the city he’s called home ever since. case possible. It was a wise decision, Immediately upon graduating cum laude and one he encourages fellow attorneys with his Juris Doctorate in 1997, Berman to remember to consider as well. “Early

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during your career, being willing to bring in another experienced attorney to assist with your cases, even if that means having to formally associate another attorney as co-counsel and share in the rewards of the case, is crucial,” he says. In this career-defining case, Berman’s hard work, and dogged diligence paid off. Not only did the case end up being resolved on the eve of the trial for a jawdropping $2.2 million, but Berman immediately carved himself a niche as the go-to attorney for all elder abuse cases in California based upon a truly unique condition in the settlement of the case: he and his clients absolutely refused to settle the case with any terms of confidentiality, which was certainly not the norm at the time. But conventional or not, it was imperative to Berman and his clients that the public be made aware of the harms being committed against the elderly and dependent adult population. They did just that. The strengths of the case that Berman exposed during the 12 months of litigating, coupled with his unwavering determination to convince the court that the case warranted discovery into the defendants’ financial worth/condition were pure magic; the defendants and its carrier agreed to resolve the case, and without confidentiality. The ensuing media attention was immediate and instantly 12

Attorney Journal | 2011 Edition

positioned Berman as an undisputed expert in the field. Not surprisingly, he soon found himself in a position of being highly sought after as co-counsel from other attorneys, who valued his unique expertise. Now, more than 10 years later, Berman is still consistently pulled into cases where other attorneys need the unmatched expertise and experience Berman has cultivated in this niche specialty. Berman remained true to his word and commitment to bring about public awareness surrounding harms being committed against the elderly and dependent adult population. So much so, that following the settlement, Berman and his clients encouraged members of the State Legislature to initiate a new law, making it improper to settle elder abuse and neglect claims under the cloak of confidentiality. The law Berman and his clients initiated, an anti-secrecy provision regarding settlements involving claims of elder abuse and neglect, was formally enacted and placed into California’s Code of Civil Procedure, under section 2017.310 in 2003, becoming operative in 2005. In 2000, shortly after his accomplishment, Berman was recognized by the San Diego County Bar Association as a “Rising Star.” Since then, Berman’s star has indeed continued to rise. His firm, which now consists of 6 attorneys and a support staff of 7 more, has received


an AV rating and has been recognized as a Top-10 San Diego Personal Injury firm for the past two years. He and his team divide their time focusing on catastrophic personal injury cases and elder abuse/nursing home cases. Today, the firm’s elder abuse/nursing home division is widely considered one of the most respected practices in California. In fact, an incredible 70% of Berman & Riedel’s cases are direct referrals from fellow attorneys, or are cases in which Berman has been called in as a formal co-counsel. Moreover, Berman & Riedel is unequivocally the go-to firm for numerous public agencies, watchdog groups, and other practitioners throughout the state to help guide or assist on the handling of complex civil elder abuse cases. In keeping with his determination to “prepare each case with utmost diligence, including completing all of the proper channels of discovery, the right motions and readying the case,” Berman is quick to point out that as an attorney, recognizing a case’s inherent strengths and weaknesses is paramount to winning cases. “It is better to know your case and its problems early than to find out after you have invested hundreds of hours and a lot of costs in a case,” he says. To that end, he does not underestimate the value of retaining reputable experts, even though the cost of experts may be high. “Again, it is better to have good experts who are willing to call it like it is than to get into a situation where you are forced to try a case with experts who won’t be believed or won’t hold up under the pressures of trial,” he adds. While Berman’s career may have been propelled by the staggering result achieved in a landmark elder abuse case, one shining victory will not hold a practice in such high-esteem indefinitely, nor did Berman ever have a desire to be a one-hit wonder. To the contrary, his victory in that case only served to drive him to continue to fight for victims, and in the ensuing years, Berman and his firm have successfully tried and won countless cases totaling more than $100M for his clients and victims of elder abuse and catastrophic personal injury. As evidenced by the staggering victories Berman has fought for and won in the years since that first game-changing case, it’s clear that in the courtroom, his strategy involves a combination of preparedness and assertive tactics that warrant accountability. These days, as a well recognized litigator, Berman is not afraid to try even the most complex personal injury cases. In

fact, in just the second half of 2011, Berman tried three high-end injury cases to verdict, including a hip injury case, a chronic pain injury case, and a mild traumatic brain injury case. The cases lasted three weeks, two weeks, and four weeks long respectively, and Berman and his team had a meager three weeks in between each case to decompress and move into the next trial. However, with thorough work-up of every matter from the inception of the case, Berman’s litigation team was able to keep stride. Champion Off The Field Berman is not only competitive and hardworking in the practice of law. Many of the strategies he uses as a legal expert, he employs in his life outside of the office wearing completely different hats. At age 41, Berman still plays competitive baseball where he pitches in relief for the San Diego Knights, a team comprised of many former professional athletes which plays in the 18+ division of the West Coast circuit of the MABL. In 2011, the San Diego Knights won the Las Vegas Kickoff Classic to begin the season and advanced to the SemiFinal game of the MABL 18+ National Division World Series before losing a tough game to the eventual champions, 3-2. In the World Series, Berman pitched four innings in relief, allowing no runs, while striking out three and only giving up three hits. No matter the game, Berman serves as the go-to guy. A knuckleball specialist, Berman jokes that he has been able to stay competitive playing in the top tier 18+ division because he “doesn’t throw hard enough to get hit hard,” 2011 Edition | Attorney Journal

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he says. “Guys most often see my 60-mph knuckleball after our starting pitcher has been throwing in the low 80s, and it is too hard for them to adjust,” he explains. Even Berman’s teammates get a smile when he takes the mound for his warm-ups. Seeing his “fastball” float up to the plate, he is often underestimated by the opposing batters. “The eyes of the opposing batters light up and they get over anxious seeing the “soft” throwing

Together with his wife of 14 years and legal partner Kelley Berman (a former litigator who now handles primarily the business and administrative matters for the firm), they’re instilling the same passion for justice, competition, and true sportsmanship with their children Sara Michelle (10), Allyson Paige (8), and Judge Benjamin (5). As a family, they are season ticketholders for the Padres and the Chargers, and

“In handling the type of high-exposure injury cases that we do, we are constantly facing the best, most experienced, elder abuse and personal injury defense attorneys. It definitely gives us reason to be prepared and focused; while at the same time serves to enhance our personal growth as attorneys.”

Berman,” said Britton Scheibe, a former minor league player with the San Diego Padres organization who not only plays baseball with Berman but has hired Berman’s firm to represent his company in several cases over the past 2 years. “But when they step in the box, Berman then works in his knuckleball, and he has a knack of consistently making those who are overconfident in facing him look foolish.” In addition to being one of San Diego’s most trusted personal injury and elder abuse specialists as well as a competitive athlete, Berman also champions his role as a husband and father to three young children. 14

Attorney Journal | 2011 Edition

they also have a small stable of race horses that train and compete throughout Southern California at such renowned tracks as Santa Anita, Hollywood Park, and Del Mar. But to Berman these extracurricular activities are just another way for his family to enjoy the healthy thrill of competition, while taking a break from the demands of his litigation practice. After all, “litigating at this level is a constant challenge,” says Berman. “In handling the type of highexposure injury cases that we do, we are routinely facing the best, most experienced, elder abuse and personal injury defense attorneys.  It definitely gives us reason to


Experience

be prepared and focused; while at the same time serves to enhance our personal growth as attorneys.”   There is no doubt that Berman’s insatiable appetite for hard work in all arenas has laid the foundation for past successes and will continue to help him grow his already established firm. However, he has no plans to change the underlying game plan his firm employs, which is to continue to focus on select high-end, serious personal injury cases and elder abuse/nursing home cases, rather than high volumes of cases. To that end, he typically holds the firm’s active caseload to no more than 60 cases at a time, so that the attorneys with the firm can give every case the high degree of analysis, work-up and attention to detail that it deserves. Berman’s willingness to work hard in all areas of his life has indeed paid off. From starting his own firm directly out of law school; to becoming one of the state’s leading elder abuse attorneys two years later; to solidifying his position as the lawyer who other experts, agencies, and attorneys turn to for advice, counsel, and to win their cases, Berman’s enduring status as the goto attorney for elder abuse and personal injury cases has not been handed to him; it has been earned. But the best part of it all, he explains, is that this equates to deserving victories for his clients. n

»»Education:

• Law School/Year: California Western School of Law, 1997, cum laude • College/Year: Arizona State University, 1993

»»Areas of Practice/Focus:

• Serious Personal Injury • Wrongful Death • Elder Abuse/Neglect • 90% of Practice Devoted to Plaintiffs’ Personal Injury and Wrongful Death Litigation

»»Bar Admissions:

• California State Bar, 1997 • U.S. District Court Southern District of California, 1998 • U.S. Supreme Court, 2003

»»Formal Education:

• California Western School of Law, San Diego, California, January, 1997, Juris Doctor, cum laude • Arizona State University, May 1993, Bachelor of Science (Major: Justice Studies, Minor: Communications)

»»Honors and Awards:

• Outstanding Advocate Award, Consumer Attorneys of San Diego, 2000 - Present • Lawyers to Watch in 2000, San Diego County • Bar Association, 2000 - Present

»»Professional Associations and Memberships:

• Member, Consumer Attorneys of San Diego, 1997 - Present • Member, San Diego County Bar Association, 1998 - Present • Member, American Trial Lawyers Association, 1999 - Present

»»Past Legal Positions:

• Law Offices of William M. Berman, Sole Practitioner, 1997 - 1999 • Berman & Walton, LLP, Founding and Managing Partner, 2000 - 2005 Berman & Riedel, LLP, Founding and Managing Partner, 2005 - present

»»Pro Bono Activities: Berman & Riedel, LLP 12264 El Camino Real, Suite 300 San Diego, CA 92130 p (858) 350-8855 f (858) 350-9855 e wberman@bermanlawyers.com www.bermanlawyers.com www.preventelderabuse.com

• Trial Lawyers Care, Inc. (September 11 Fund Pro Bono Program), 2002 - 2004

»»Ancillary Businesses:

• Professional Sports Management

»»Hobbies:

• Sports, Travel, Recreation

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16 Attorney Journal


WHAT’S OUR DEAL? by david maister

At a recent conference, I heard a number of successful firm leaders describe how their firms had achieved significant growth and profitability. A common phrase used by each and every one of these firm leaders was “making sure that all the key people were ‘on the same page.’” Clearly, it was important that something was agreed to and shared among the members of these firms. But what? What does “being on the same page” really mean? And how is it done?

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Attorney Journal | 2011 Edition

A Hierarchy of Concepts A common collection of integrating concepts might include choosing: • Purpose / Mission, then • Vision / Direction, then • Values / Principles, then • Culture / Rules of Behavior An organization that begins with an agreed-upon purpose (or mission), would be able to communicate externally and internally WHY it is in existence. This would allow the organization to communicate more easily a vision of its future, and hence its objectives and direction. (What it was trying to achieve.) It could then, theoretically, derive a set of values or principles that the firm is going to operate by. (HOW it plans to operate in order to achieve the purpose, the vision and the objectives.) The set of values and principles would then define the firm’s culture, the way things are done around here, and hence its rules of behavior. (This is more “HOW.”) That’s just one approach. Notice that it leaves out the word “strategy” and makes no reference to specific objectives or targets. Unfortunately, in practice, these various integrating concepts rarely achieve what is hoped for when they are developed, and many people have become (appropriately?) cynical about these concepts. For example, many more firms have “mission statements” than actually have missions, and it is the rare organization where everyone believes that the officially declared statement of values is strictly adhered to. Have all of these concepts lost their practical value? Should firms and their leaders still take the


time to attempt to build consensus around things like purpose, mission, vision and values? If so, how can it be done in a way that actually has a practical, real-world impact? Where does one begin? Tempting as it might be, it would be a mistake to abandon all uses of these

easier (at all levels) by being tested against whether or not they advance or inhibit the organization’s purpose. Things will happen more smoothly, more efficiently and with fewer false starts. • The organization can

partnership, if there are hundreds (or thousands) of them scattered over many distinct departments, numerous service lines, cities, countries and continents. It’s also worth stressing that the practical test of whether having a declared purpose (or mission) helps your organization achieve greater

terms. Some mixture of these things is almost certainly needed to: • create a sense of common, joint enterprise • define the organization, • set its boundaries, • give it a direction, and • mobilize the organization’s members. If you were a real-world CEO or managing partner trying to lead your organization, where would you begin to grapple with these concepts?

attract energetic, committed employees who believe in and share the purpose (and, what may be equally as beneficial, scare away people who don’t want to participate in that purpose) • Less heavy-handed oversight and management will be required to keep things on track, since everyone will be using the same principles to guide their interactions and decision-making.

things is not whether the marketplace believes what you claim to stand for, but whether or not the people inside the organization truly believe that all decisions are actually made (or should be made) on the basis of that purpose or mission. Only if they believe the purpose or mission is real will you actually elicit the extra levels of energy, commitment, collaboration, dedication and longterm thinking that will produce the superior results. This is, of course, a researchable,

Starting with Purpose

Among others, Nikos Mourkogiannis stresses the importance of beginning with “purpose” in his book Purpose: The Starting Point of Great Companies (Palgrave Macmillan, 2006.) Howard Schultz, CEO of Starbucks, has been quoted as saying that “People want to be part of something larger than themselves. They want to be part of something they’re really proud of, that they’ll fight for, sacrifice for, trust.” Where a clear, believable, palpable purpose exists for the organization, where its reason for existence and what it is trying to achieve is clear, a multitude of business virtues follow almost automatically. Among these are: • Decision-making can be made

Notice what the proponents of “purpose” are saying. The argument is that by (credibly) eliciting commitment to a “cause” other than maximizing shareholder value, shareholder value (and other measures of financial performance) will actually increase, not decrease, because people will contribute their extra efforts and dedication. Purely financial purposes, the argument goes, will fail to elicit this extra energy. “Work hard to maximize the owners’ profitability” is not much of a rallying cry if you are not an owner, and may not even be that effective among (for example) the partners/owners themselves in a large

testable proposition. You could survey all of your people, right now, and ask them how well they think your organization is living up to its purpose, mission, vision or values. If they say it is, there’s a high probability that you are reaping the commercial benefits. If they say it is not, (or if you’re not sure you want ask or disclose the findings,) you have to question whether, in purely practical terms, you have learned how to make purpose, mission, vision or values work for you. Achieving a functioning purpose is hard. It is not only a problem of management actually possessing an “ideology” and having the discipline 2011 Edition | Attorney Journal

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to always act in accordance with it. It requires that the organization attracts (only) those who are prepared to help pursue the organization’s purpose, and not keep substituting their own agenda. Not all people are pre-disposed to enjoy mutually dependent activities designed to build for the future. Mr. Schultz of Starbucks may be right about most people being eager to seek out a cause, but not all people. I’m not saying building a common purpose cannot happen, nor that it’s not immensely powerful where it does exist. I’m merely reporting that it’s incredibly scarce. There are relatively few organizations that are credible and convincing to their people that they won’t take advantage of other (“offpurpose”) opportunities to advance net shareholder value. Note that this is not (primarily) a moral or aesthetic point, but a practical one. Contrary to what many leaders seem to believe, there’s no point declaring that your organization has purpose or mission if your people don’t think you will stick to it — unwaveringly. As one of my clients said recently: “Inconsistency is very demoralizing.” Not to mention confusing — and unproductive. You cannot get your people to dedicate themselves to a cause you stick to only occasionally. As one managing partner said: “You can be certain that, as night follows day, that any ambiguity will be construed against you, particularly internally.” And you cannot build an organization committed to a purpose, mission, vision or values if you hire (otherwise exceptional) people who are not susceptible to such appeals and do not share a dedication to achieving them.

Building Committment 20

Attorney Journal | 2011 Edition

So, if you think that your organization does not (yet) have an energizing, motivating purpose, should you try to take your people through some kind of process to see if they are willing to sign up for one? Maybe. But let’s be practical about what would be required. Whether you are talking about purpose, mission, vision, values, goals, objectives or almost ANY of the traditional concepts that people use, the only practical way to make it real is to do two (simultaneous) things: • stop talking about the future destination, and start thinking about the rules you would have to live by in order to get there; and • translate the generalities of the organization’s purpose, mission, values or principles into what it would mean for individuals and confirm that the organization’s members are, in fact, prepared to be held accountable and live by those individual rules. I explored aspects of this in my article “Strategy and the Fat Smoker.” Saying that you “aim to get fit” doesn’t really indicate that you have chosen anything. It certainly doesn’t, by itself, persuade the listener that you are committed to that goal. However, if you stop talking in the language of destinations (goals, targets, purposes, missions and aspirations,) but instead discuss whether you are prepared to accept (strictly-observed) operating rules such as “I will exercise for 30 minutes five times a week and eat no more than XX calories per day”, then it becomes both clear and convincing that you are committed to (and will, with high probability) achieve the goal. We all know that, as a practical matter, it is insufficient to say “We will try to exercise for 30 minutes five times a week and eat no more than XX calories per day.” In both personal and business life, we know that the minute you allow ambiguity or uncertainty

(i.e. loopholes and exceptions) into the statement, the less certain people will be about what you will actually do as a leader, what they are buying into and what they are required to do. So, to see if your firm is willing to pursue a particular purpose, mission, vision or values, the discussion you must have would be: Are people willing to have all decisions, large and small, judged in accordance with that purpose? Are they willing to be personally and individually accountable for progress toward that purpose, mission, vision, value or principle? Imagine, for example, a group of partners or firm leaders sitting around discussing their firm’s future. Imagine that someone proposes that the firm should commit itself to the purpose or mission of being “the leading firm” in its area. What would be needed would be an in-depth discussion which explored such questions as: What might this mean in practical terms? Does this mean that everyone agrees that the firm should only do high-end work and turn away work if it does not command premium fees? If not, what is the rule going to be? Does it mean, as an example, that the firm will only work for chief executives and no-one else in the client organization? Does it mean that the firm will only employ those who are truly superior and will ask the merely competent to leave? If it means none of these things, then what, if anything, would it mean to be a “leading firm?” As a means of discussing people’s understanding and commitment to what is being proposed, notice that it often makes propositions a great deal more clear if they are phrased in the negative. To say “we want to be the leading experts” is not the same thing as saying, for example, “We will not stay in a business that we cannot charge a premium for.” Usually, saying what you will NOT do communicates more than what you say you will do.


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If you cannot articulate a set of binding rules that people will agree to be governed by, then you probably do not have a purpose, mission, vision or values. As always, this is meant to be a pragmatic point, not a moral or aesthetic one. It used to be said that your culture was what people did when no-one was looking. That’s not a bad way of summarizing all this. If the people in the organization share (and use) a common set of decision-rules throughout your organization whenever they are faced with choices, the likelihood that you have an integrated firm with a common purpose, mission, vision or values is high. If they don’t (or won’t) accept the same (clear, unambiguous) decisionrules, then you may have a successful firm, but it’s not clear that all parts of your firm will be “on the same page.” In my 1997 book, “True Professionalism,” I wrote that the test of the existence of values in an organization was whether or not it had in place “consequences for noncompliance.” I believe that this is still a good test for the operational effectiveness of any of the concepts we are investigating here. You don’t have a purpose or mission (or a set of values) when you declare them. You have such things when you put in place processes that respond to each and every instance when the organization (or individual) fails to adhere to the purpose, the mission, the values or the culture.

service to. It doesn’t matter whether you choose to start by discussing purpose, mission, values or culture (or anything else.) Whichever you begin with, it will turn out to be the rules you choose to live by that determine your future, not the targets you aim at. You must start by asking yourselves – what are we going to be uncompromising about? This will tell the world (inside and outside the organization) who you are, what you are, and what are your vision, mission, purpose and values. There are a number of other perspectives that shed light on this conclusion. Political science (and history) teaches us that you can determine the very nature of a society by agreeing upon its constitution: establishing the core, inviolable principles and regulations as to how decisions will be made. By stating, concretely, the rules that would be followed in making decisions and, equally important, the rights and obligations of citizens in the community, the very identity and character (and its future potential) of the society can be determined. So it is with business organizations. When “doing strategy,” it can be difficult, if not impossible, for firm leaders to say definitively what businesses the organization will get into, what services it will offer and in what parts of the globe it will offer its services. In fact, making and declaring choices in these areas can be politically risky if they do not include, as priority

However, if firm leaders can propose, and build support for, the decisionmaking processes and rules (i.e. the constitution) that the firm will follow in all of its decisions, then something both meaningful and powerful can be created. Another insight into this was provided by Cristian Mitreanu in a fascinating article called “Is Strategy a Bad Word?” He wrote: • “What explains the relative failure of most organizations to create effective strategy? Part of the problem …can be traced to their interpretation of the word strategy itself… • In war, objectives can often be clearly defined, and so strategy is thought of as a means to a specific end. ....By contrast, goal orientation becomes arguably inappropriate when success has to be indefinitely sustained.” I call this “acting as if there is no final whistle.” It means running the organization not to attain particular targets in a particular time frame, but recognizing that, one way or another, the organization will continue into the indefinite future. It’s rather like thinking of an organization as a biological entity or a species. It’s not in the choice of objectives that a species differentiates and sustains itself, but through its special ways of adapting and responding to shifts in its environment. Consider also the well-known computer simulation that, by specifying, in advance, some basic parameters (including the rules of

targets, areas of the business that the organization is already in. No-one wants to be identified as being in an “off-priority” part of the business.

reproduction) and then allowing the game of begin, wonderful patterns emerge, and some species flourish while others die out.

Strategy as Journey, Not Destination

What all this reveals is that “doing strategy” is not really about selecting objectives, targets or future states. (“We aim to be the best”) That’s too imprecise, and too easy to pay lip22

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The differences between these “species” are not differences in objectives, targets, purpose or mission. The differences which really determine the future are the rules they employ to make their decisions when faced with choices. A final metaphor may be instructive. In game theory (a branch of mathematics about decision making) the term “strategy” doesn’t refer to any particular decision, or group of decisions. Rather, it is a way to go about making decisions. Defined that way, it’s a close correlation to the concepts of “values, ideology and principles” embedded in the organization’s decision-rules. Where clear, unambiguous decisionmaking rules exist, there is the opportunity for a clear rallying cry for people either to buy into or to leave, and it makes delegation of decisionmaking upwards, downwards and sideways a lot easier. Everyone knows the REAL rules.

Participation

It is a well-established principle that people are more likely to live in accordance with rules that they have played a role in shaping (I wrote about this process of establishing ground rules for mutual accountability, mutual contribution and shared values in my co-authored book, “First among Equals”). It is also well established that an organization’s “rules of engagement” have a tendency over time to be taken for granted. They can fall into neglect not through malice but by being taken for granted. The slow accretion of small decisions and actions, none of them actually seriously wrong, can nevertheless cause an organization to operate in ways contrary to its declared core beliefs, principles and the rules that enshrine them. Accordingly, even if an organization thinks it has a clear, unequivocal

agreement on purpose, mission, vision and values, it is nevertheless a good idea periodically to revisit the organization’s rules and trace through what rights and obligations they imply for individuals, top to bottom. Even for established organizations that are confident that they are “on track”, there is tremendous power in giving people the opportunity to discuss whether they still wish to be governed by the rules that define the organization, and have the chance to affirm (or re-affirm) their “pledge of allegiance” to those rules. At what level do you try and obtain buy-in to these “rules of engagement?” It is a common tendency to draw up a set of a “values” or “principles” (or, as I would have it, decision-rules) and present them simultaneously to all of the key players at some annual meeting or specially-convened strategic planning meeting or retreat. I believe this is a mistake. As noted above, an organization may be worse off, not better off, by pretending to advocate a set of standards it is not actually prepared to live by. And everyone in the organization will be looking “upwards” to see if “those guys” are truly serious before they commit themselves to the cause. Accordingly, the best process for approaching all of this is to begin with a very small inner circle of top management leaders, who can look each other in the eye and ask: “Are these really the decision-rules we are prepared to stick with? If we advocate them, will our people believe that we will keep the faith to adhere to these strategies?” Only when true commitment has confidently been obtained at that level will it be time to (slowly) roll it out to the next level, making the case as to why the organization should live by the decision-rules, and building the consensus and buy-in necessary. Only when the top-level is truly committed will it be time to try

and convince the junior staff in the organization that the firm is serious. And only then, when everyone internally has signed on, will it be time to let the outside world know what the organization is determined to do.

DecisionMaking Rules

So what might some possible decision-making, constitution-forming rules be? Drawing upon a variety of sources (including the best practices among super-successful firms that I identified in my 2001 book “Practice What You Preach”) here are some suggestions for firms to consider. • All decisions will be made on the principle that we put the clients’ interest first, the firm’s second and the individual’s last. We do not accept people who fail to operate in this way. • We will achieve levels of client satisfaction that result in client referrals becoming our main source of new business. • We will have no room for individualists – those who put their personal agenda ahead of the interests of their team. • Reward systems will be driven by a judgmental assessment of overall contribution to the success of the firm, not on short-term individual performance. • Everyone will be required, not just encouraged, to learn and develop new skills. The organization has an obligation to help each individual achieve this. • Each year, we will invest a significant amount of time in things that will pay off in the future. • Those in managerial roles will be selected, evaluated and remunerated primarily on the success of their group, rather than their individual 2011 Edition | Attorney Journal

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performance. • Individually and collectively, we will operate with a “stewardship” mentality toward our junior people, accepting the obligation to coach, mentor and develop those who report to us. • We will not tolerate abuse of power or position, a lack of respect in dealing with other people at any level in the firm, politicking, individuals who cannot be relied upon to keep their word, or shirking or dumping of responsibility. Only those of the highest honor and integrity will be allowed to retain membership in the firm. These are, of course, only possible decision-making rules. They are not necessarily the best (although a case can be made for their effectiveness in creating organizational success) and they are not the only choices a firm could make.

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Indeed, my whole point is that different organizations will have different rules that they are prepared to live by, and that, in focusing on them as non-negotiable decision-making rules, firms will better achieve clarity and effectiveness in their operations. Once the decision-making rules are in place, it should be easier to trace through the “rights and obligations” that members of the organization have: what they agree to sign up for when they join, what they agree to be held accountable for, and what they can reliably expect from the organization (and other individuals in the organization.) My recommendation is not: Accept the rules offered here. Rather, it is: Figure out which rules you, your management and all your people are prepared to accept and never compromise. When you are done, you will know your purpose, your mission, your values and your strategy. n

By David Maister STRATEGY AND THE FAT SMOKER, Spangle Press, 2008 pages 59-73.


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“You say you want a revolution – Well, you know – We all want to change the world – You tell me that it’s evolution Well, you know – We all want to change the world” … Paul McCartney / John Lennon

Revolutionary Thoughts: Revamping Family Law by pamela donison

Following a 15-year career in journalism and book publishing, Pamela attended the University of Arizona James E. Rogers College of Law, graduating in 1999. After a few too many high-conflict litigation cases, Pamela created Donison Law Firm, PLLC in 2005, with an emphasis on out-of-court solutions including mediation, arbitration, collaborative law, and negotiated settlements. Pamela has an undergraduate degree in Business Management which she uses to assist clients in Double Divorce. www.donisonlaw.com 26 Attorney Journal | 2011 Edition 26 Attorney Journal

It’s time for a revolution in the family law world. Most people practicing in this area of law for any period of time will agree that the “system” is not very good at managing families. But we have yet to devise a better mousetrap. One of our young colleagues, Rebecca Stahl, is in New Zealand on a Fulbright Scholarship studying for an LLM. Rebecca has yet to be tainted by the world of billable hours and cynical opposing counsel, so she is bringing a fresh eye to the world of family law. Her blog,“Family Law: Shifting the Paradigm,” (http://famlawshiftingparadigm. blogspot.com/) is a challenge for us to think (again) about how to approach the riddle of family law from a systems viewpoint. Rebecca’s blog has suggested that we incorporate interdisciplinary services in a unified court. As for the interdisciplinary model, it’s already here in the form of collaborative practice and it dovetails well with a unified court; however, I have come to believe that the whole notion of families interacting with a “court” misses the mark. I also believe that we need to extend our horizons because, as our society ages and the definition of “family” changes, we are going to see more family-type partnerships that fall outside of intimate relationships: people living together for community, economics, and safety. We must be prepared in our processes to manage the inevitable disputes that will arise from such arrangements. Creating a Better Mousetrap So here are some ideas for creating a better family law mousetrap, but I know you have a few of your own! First, let’s eliminate the dabblers, who have so little commitment to the field that they only visit opportunistically and do more harm than good. It’s a common but serious misunderstanding of the complexities of human relationships to assume that family law is “easy” to do. Second, let’s make the zealots (as in “zealous advocacy”) obsolete. Third, let’s insist on wellness and balance in our lawyers so that they can focus on the whole family instead of becoming aligned and enmeshed with the position du jour. Finally, let’s scrap the whole “family law” system, toss out the statutes, rules, and cases, and start over. (Oops. Did I say that out loud?) Dabbling Is Not Best Practice One way to cure the dabbling offender is to require basic family law training prior to being accepted to practice before


the family bench. While that may sound like an administrative nightmare or an unacceptable barrier to entry, consider that admission to the patent bar requires underlying education in science or engineering. Shouldn’t admission to the family bar require education in psychology, child development and family dynamics, when so much is at stake? Zealous is a Four-Letter Word The zealots are tough to convert because so many are heavily invested in perpetuating litigation as a business model. In addition, zealots often receive a personal reward (beyond money) for being antagonistic, surly, and obstructionist. Is this what our bench and bar approve of as acceptable practices? Some of you will answer with an emphatic NO, and for that I’m grateful. But if stirring up the emotional pot in order to generate income and an adrenalin rush is not acceptable, how do we end it? The extra education for admission to the family bar will manage much of that behavior, but perhaps we should mandate that our attorneys, judges, and mental health providers be trained in facilitative mediation and collaborative practices. That step, in conjunction with the basic education requirements for practicing family law (above) would help to minimize the occurrence of self-serving, family-damaging litigation tactics. Wellness Goes Beyond Physical Fitness As for the wellness and balance component, if you are like most lawyers, you know intellectually that you need to do certain things to take care of yourself, but do you actually engage in the practice? I know I’m not alone in having come face-toface with someone on the other side of a case who is so deeply out of touch that they act as if the issues at stake were their own. That type of over-identification and alignment is not only an impediment to providing quality legal services, it is detrimental to the attorney-client relationship and seriously damaging to the mental health of the attorney. Do what you can with the resources you have but make time for yourself – for the sake of all of us! Of course, we can’t mandate wellness, but the State Bar of Arizona is one resource that should be educating the profession about the necessity of self-care. The Bar dipped a toe in that pool with a workshop that my friend, Alisa Gray (Fassold & Gray, PC), and I co-chaired earlier this year called “Beyond Burnout: Practical Approaches to Transform Your Practice and Your Life.” As a CLE, this was a voluntary activity, so I go back to the notion of mandatory education. The Bar requires three hours of ethics per year, leaving another 12 hours to our discretion. Given the alarming statistics regarding mental illness and substance abuse among lawyers, why not require three hours of wellness education and leave the remaining nine hours as electives? Those who can prove their regular

attendance at some type of good-for-you program (yoga, fitness training, meditation, etc.) can get a waiver. What if Legal Marriage Went Away? We currently have two systems of marriage: religious and legal. What bubbles up in my thinking of this issue is that we must un-hitch our legal wagon from the idea of the traditional family. The religious marriage (i.e., the wedding mass, or whatever iteration you like) is not part of this discussion and I think everyone should enjoy the ceremony of their choice in that regard. It’s the legal marriage that is problematic because the system was employed to confer property rights. Period. Fast forward a few hundred years and we have a cobbledtogether system of some civil law that’s been tweaked and some economics applied to childrearing costs and some watered down social science that passes for a best-interests inquiry regarding parenting rights and responsibilities. So what happens if we scrap the statute book? How do Sam and Sarah (the prototypical nuclear heterosexual family) “untie the knot”? How are property rights conferred and protected? How are parenting rights determined? And what if Sam and Sarah had a fabulous synagogue marriage ceremony but never actually got around to being legally married – a practice which is becoming the norm in many communities? What comes to mind for me is a system of residential partnership (RP), similar to the system we currently use for creating a corporation. RPs would apply to couples (including same sex), roommates, members of communal housing arrangements, inter-generational families, and anyone else who shares a residential household. If you want your RP (no matter what its flavor) to be recognized as a “legal” RP, then you must pay your fee and register with the state. What the parties would register is an RP agreement, similar to an Operating Agreement: a contract to set forth separate and joint property rights and (for couples) the method for which parenting issues will be resolved in the future. This type of agreement could be form-driven for the do-it-yourself (pro se) client or customized contracts for those with more resources and/or complexity. If parties fail to register an RP agreement and then have a property dispute, they would fall within civil contract law. For disputes regarding children and support, parties would be referred to mandatory binding arbitration. The arbitration panel would include an attorney-arbitrator, a child specialist to advise regarding best interests of children, and a financial specialist to advise regarding support. These are just a few ideas for revamping our system to make the practice of family law more humane (for us and for our clients). I can almost hear the gasps of outrage from some of my colleagues and my response is this: if you have a better idea, let’s hear it! n 2011 Edition | Attorney Journal

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The Rambling Witness by jan mills spaeth, Ph.D. & rosalind r. greene, J.D. Advanced Jury Research

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Question: How do you prepare a talkative witness who rambles instead of answering questions directly? If you don’t have a sock handy, use a stopwatch or an hourglass. Literally. Your rambling witness can be trained to answer concisely when watching the clock. This will teach the talkative witness to shrink responses under pressure and stress, stress that will also occur in the deposition or courtroom. Continue this practice throughout the witness prep session. It will take time for the witness to become skilled and comfortable with short responses. Some answers can be done in 5 seconds or less, some 10. Few answers need more than 20 seconds. Count out 20 seconds. A lot can be said in this timeframe, and research has shown that jurors and fact finders can lose interest in longer answers. Even when a witness has much to say, like an expert, observers pay more attention when the attorney frequently interjects a question or comment, even if it is something simple like “Please tell us more” or “Can you elaborate?” This also ensures that the attorney maintains control of the testimony, and avoids the “runaway witness” syndrome! In addition, this keeps the interest of jurors and others because, out of curiosity, they want to know the answers to the

questions. In addition, in witness preparation, we ask witnesses to answer a question in one or two sentences, a short paragraph at the most. Have witnesses visualize this in terms of size. They can then better translate this to their responses. Another approach is to ask witnesses to visualize the headlines and first few sentences of a newspaper article. This is where most readers focus. If important points are made in the middle of the article, they are often missed. Teach your witnesses to make their points quickly, up front, like newspaper articles. When asked a “yes” or “no” question, teach talkative witnesses to answer with an affirmative or negative response first if they can before providing an explanation. Otherwise, the explanation can not only be perceived as an excuse or evasive, but observers can lose interest by the time the question is actually answered. Of course, if neither a “yes” or “no” response is correct, the witness needs to politely state this before providing an explanation. Lastly, videotape the witness in both a rambling state and a concise state so the witness can view the difference. If all else fails, show a videotape of the rambling witness to office staff or a focus group, get their feedback, and share this with the loquacious witness. This often provides the needed motivation for change! n Jan Mills Spaeth, Ph.D. Since 1980, Dr. Spaeth has worked nationally as a trial consultant on mock trials, focus groups, witness preparation, jury selection and case strategy. She has written extensively on legal issues, and published a series of DVDs on witness preparation with the American Bar Association. She is a member of the American Society of Trial Consultants, the American Bar Association, and the American Psychological Association. She can be reached at 866-505-4131, www.adjuryresearch.com, and jms@adjuryresearch.com.


Investigative Series: What’s In a Name?

T

S. Jennifer Mannino is a principal of RISC® a global due diligence and investigative consulting firm based in Phoenix, Arizona. Jennifer manages full cycle investigations and oversees the investigative strategy on background investigations for M&A deals and asset searches for commercial litigation disputes. She can be reached at 602-277-7472, ext. 105 or www.risc-llc.com.

o the general public,

Name is a personal reference point. a

We use it to create familiarity and to be personable. In the business and legal communities, parties will contract with a

Name

and in adversarial situations, will sue the

Name. In the investigative Name is an identifier; it

sector, a

is the nucleus of the investigative process, as the majority of information systems and data warehouses today are namesearch driven.

De-Coding a Name There are three key considerations when launching an investigation of a Name. The first is to decipher whether the Name at hand is a given legal name, surname, married name, or moniker. The second is to determine the possible spelling variations of the Name. The third is to understand the possible cultural nuances behind the Name. Using my Name as an example, one must investigate my given legal name, my middle name because this is how I am known in the business community (Jennifer), my maiden surname, and my married surname (Mannino). If I intend to be strategic with the usage of my Name, I may execute investment contracts in my legal name, and would consider being litigious using my name as it is known within the business community (Jenn Mannino). 30

by jennifer mannino

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Tracing Footprints of a Name Now that we have de-coded the Name, we need to trail it. As a starting point, ties to a specific jurisdiction are derived from a person’s employment background (current and past); property ownership records (current and sold); corporate registrations (active and inactive); professional licensure (active and lapsed); and academic affiliations. Trailing the footprints of a Name is particularly important to the investigative process in order to analyze our information systems and data warehouses, and decipher whether those jurisdictions are available.

Researching a Name in the “Public Record” When we search a Name in the “Public Record,” we must understand the resource we are searching and how it functions before we utilize it. For example, a common Public Record resource that is electronically utilized in San Diego is the Superior Court at www.sdcourt.ca.gov. In reading the website’s disclosure statement: “Civil Limited records may only be available for 10 years for some court locations. Juvenile cases are not included in this index.” Your options to search are using a strict name search or case number. The disadvantage to online searchable Public Record websites is that they do not support free text querying, meaning if a clerk uploads data into an agency’s system and misspells the name, a strict name search will not yield important

information and may have drastic effects on your imminent investment or pending lawsuit.

Researching a Name through “Data Warehouses” One solution to protect against the strict name search pitfalls is to subscribe to Data Warehouses, or more commonly, Proprietary Databases that have packaged information (for the permissible use) by the legal and financial communities. The benefit to these subscriptions is that they have the capabilities of running natural language and Boolean searches. As indicated above, it is still critical to understand the search tool and how it functions because there is no single proprietary database that is all-encompassing and providing nationwide coverage of every agency and court system within the United States. Therefore, without such an understanding, there may be potential gaps in the data that you uncover from your search. These Proprietary Databases are very transparent about what is and is not covered through their systems. For example, an excerpt from one of the Data Warehouses reads: “Database contains records concerning civil lawsuits from courts in more than 500 counties in 45 states….” From an investigative perspective, it is critical to know which of those counties are included, as there are actually over 3,000 counties in the United States, meaning that particular search tool only covers an estimated 16% of the counties in the United States. n


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Attorney Journal, San Diego, Volume 101  

Attorney Journal, San Diego, Volume 101