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Attorney Journal | Volume 106, 2012




GIVING TRIAL LAWYERS • Business • Wrongful Death

• Personal Injury • Mass Torts


Yolanda S. Walther-Meade, VP, Business Development 858.504.0188 | yolanda@thegomezfirm.com 625 Broadway, Suite 1200 | San Diego, CA 92101

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Attorney Journal | Volume 106, 2012


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2 0 1 2 E D I T I O N — N O .106

4 Preventing Partnership Implosions Before It’s Too Late







22 The Volunteers of SDVLP: 26

The $4 million Difference! TERESA WARREN


28 Top Competencies a Lawyer Needs to Succeed Today


30 Staff Infection -

Whether your legal secretary is a marketing asset or liability depends mostly on you NORM HULCHER


30 Editorial material appears in Attorney Journal as an informational service for readers. Article contents are the opinions of the authors and not necessarily those of Attorney Journal. Attorney Journal makes every effort to publish credible, responsible advertisements. Inclusion of product advertisements or announcements does not imply endorsement. Attorney Journal is a trademark of Sticky Media, LLC. Not affiliated with any other trade publication or association. Copyright 2012 by Sticky Media, LLC. All rights reserved. Contents may not be reproduced without written permission from Sticky Media, LLC. Printed in the USA

EXECUTIVE PUBLISHER Brian Topor EDITOR Nancy Deyo CREATIVE DIRECTOR Julianne Gleaton CIRCULATION Angela Watson PHOTOGRAPHY Bronson Pate Vinit Satyavrata STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Larry Bodine Teresa Warren Nancy Jones Norm Hulcher WEBMASTER S. Chorng ADVERTISING INQUIRIES info@AttorneyJournal.us SUBMIT AN ARTICLE Editorial@AttorneyJournal.us OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 www.AttorneyJournal.us ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

Preventing Partnership Implosions Before It’s Too Late by nancy byerly jones Nancy Byerly Jones is enthusiastically and tirelessly dedicated to helping her clients build business success stories that last...and as a family law and workplace mediator, she is a passionate advocate for helping keep folks out of the courtroom and moving positively forward with their lives.  Please visit her website (http://LawBusinessTips.com), on Twitter (http://Twitter.com/lawbusinesstips) or on LinkedIn (http://www.linkedin.com/in/nbjones). If you have any questions for Nancy, she’d enjoy hearing from you by email too: nbj@nbjconsulting.com


Attorney Journal | Volume 106, 2012

TO OUTSIDERS, LAW FIRM PARTNERSHIPS MAY APPEAR SUCCESSFUL AND WELL-RUN BY A UNITED LEADERSHIP TEAM. INSIDE, HOWEVER, THE TRUE STORY COULD BE WORLDS APART FROM PERCEPTIONS.  All too often, we hear about law firms in the midst of highly emotional, extremely costly disputes or dissolutions.   Many implode despite the partners’ prior individual and joint successes, their shared professional bonds or many years of working together. These conflicts can be over many little things that have built up over time or abrupt implosions due to newly discovered deceits and other harmful behaviors. Firm leaders are often unsure as to how to deal with the crisis and until they determine the best course of action, valuable time is lost and damages continue accruing.   We must never underestimate the extensive harm done by substance addiction, greed, desperation and deceit.  Nor should we discount the damaging fallout (to all employees) within a law office due to longstanding, unresolved disputes between partners. Challenging economic times can make these destructive scenarios more likely and more costly.   Below are a few “starter” tips (far from all-inclusive) to consider when partner disputes arise.  They may not always help prevent the ultimate dissolution of a firm. They have proven, however, to help sparring parties avoid destructive fallout and to move more quickly and productively toward resolution.  1. If you have an “issue” or disagreement with a partner, don’t bury your head in the sand or otherwise procrastinate. Talk things over sooner rather than later.  Squarely face the conflict and real issues at hand. Keep civil, respectful discussions moving forward for as long as it takes to find a fair resolution, to find better and productive ways to communicate and to salvage relationships worth holding on to. 2. Search for and find the real facts. Not doing so means you may be unknowingly (or in some cases very knowingly!) relying upon malicious gossip, incorrect and/or possibly intentionally false information. 3. When discussing the disputed issues, ensure your imaginary “thick skin” is on at all times so as to maximize continuing progress towards resolution and to minimize any emotional meltdowns (including the spewing of words you may later regret and can never retrieve once they have parted from your mouth). 4. Give any and all discussions your undivided attention: no multitasking, displays of impatience

(including negative body language!) or any other actions that indicate you have more important priorities than the discussions at hand. Be a consistently active listener. Be willing and open to hear and try to understand the other side’s perspective. Commit to keeping an open mind and acting with class and respectfulness toward all. This commitment must be ongoing and steadfast as everyone works his/her way through the painful, unpleasant and sensitive issues that need to be addressed and resolved. 5. If you feel you lack the emotional stability and/ or necessary communication skills to work patiently and steadfastly toward resolution, hire a third party neutral such as a mediator. A retired judge may also be willing to help guide leadership through the labyrinth of emotions and decision-making via an ombudsman-type role. The bottom line is that the right facilitator can help you navigate the waters of awkwardness, miscommunications, false impressions, the pain of conflict and/or the points of strong disagreement. 6. Bring in other facilitators or experts to assist with the process when their expertise would be helpful to the process (e.g., accountants, human resource managers, communication coaches). 7. Understand that if you do choose to handle conflicts disrespectfully, hastily or harshly there will no doubt be more harm done along with long-term negative consequences – many of which you may never have anticipated and will live to regret. Through my years as an attorney, mediator and law office management consultant, I have seen firsthand what runaway greed, deceit and unresolved conflicts can do to a law firm.  It’s never pretty, always costly and there are truly no winners. We can, however, minimize the risks of costly litigation and the tragic repercussions of destroyed partnerships, friendships and long-term professional relationships. We can do so by addressing our conflicts – whether big or small – wisely, timely, resourcefully, honestly, calmly and respectfully. This is easier said than done, but so worth our time and efforts for all concerned -- not to mention the clients we serve. n

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Attorney Journal | Volume 106, 2012

photogra phy by Bronso n Pa te 8




Attorney Journal | Volume 106, 2012




omething about Matthew Terry is likable from the very start. He’s working from home on the day of our interview, since he was in his office until 10:30 the previous evening. He lets me know that putting in long hours at the office is not an aberration for him; it has been the case since he was in law school. But Terry isn’t the slightest bit bitter about logging such long hours. On the contrary, I can almost hear his smile through the phone when he says that practicing DUI defense isn’t work at all. He enjoys the work, he’s a self-professed bookworm, and he loves to write. So late night writs and appeals aren’t groan-inducing. Nor does he consider staying in the office late to read up on some of the greatest trial lawyers of the century to be a chore. Instead the long hours of reading and writing appear to a quench a cerebral thirst Terry has for studying and understanding concepts of law. Moreover, he adds that as a bonus, he’s been lucky in getting to know the graveyard shift employees in his building, and in the buildings he’s previously worked in. (See what I mean? It’s frankly kind of hard not to like someone like that.)

time-as a defendant. He’d logged a couple of stints in various juvenile halls, and wound up a ward of the court, under the custody of the State of California. “As I sat in a cell in Juvenile Hall in Oakland, becoming a trial lawyer was more of an aspiration for me than playing wide receiver for the Raiders. Sitting in court back then, I was absolutely fascinated with the few passionate and magically articulate lawyers on both sides of the room. I learned at a very young age how essential the ability to advocate for yourself truly is, and how few people can do it well. To now be in the position to advocate effectively for another human being, gives me a satisfaction beyond words,” Terry says. “I relate to my clients. I see someone in a situation they never thought they’d be in; a fish out of water. I’ve been there. Good people end up in the criminal justice system. I know what they’re going through. I’ve been on that side of the desk, I know how terrifying it is, and the vast majority of my clients (normally responsible, hard working professionals) have learned their lesson by the time they walk through my doors with a DUI,” he says.

BEEN THERE, DONE THAT Terry’s sort of rough and tumble childhood makes him pretty likable too. Coming from a “great middle class family in the Bay area” as a kid Matthew found his share of trouble. His mischievous nature didn’t go unnoticed by law enforcement, and at just thirteen years old, Terry was introduced to courtrooms for the first

LESSONS FROM BAD & GOOD DECISIONS Indeed, as a teenager, Terry had gotten himself in enough trouble to know that he was in over his head, which naturally lent itself to some serious self-doubt. “My struggle was in believing Attorney Journal | Volume 106, 2012


I could ever make it this far. I took my high school proficiency exam when I was 15, in a group home in Oakland. I never graduated. Although I was a voracious reader, I never thought I was one for school,” he continues. So instead of heading to college, he decided to enlist in the Marine Corps. Although Terry scored a perfect 99 on the ASVAB (Armed Services Vocational Aptitude Battery), qualifying him for many opportunities he chose the Military Occupational Specialty of an Infantry Rifleman, also known as an 0311. While these four numbers mean nothing to a civilian, they represent the pride of the Marine Corps – the frontline combat troops. Although he was never deployed, “the lessons in self-discipline I learned during training in both boot camp and infantry school gave me an entirely new self-image. It reinforced personal pride in my work ethic, but most importantly – to simply never quit; to finish what I started at all costs.” Soon, Terry decided to go back to school, and decided to employ the same strategy that he’d learned so well during his time in the Corps. “Starting college, I refused to quit or even miss an assignment. Never really believing I’d finish, my personal rule was simply never to quit. I made the decision to fail before I ever quit,” he explains. The strategy paid off. Terry earned a degree in finance, and with his confidence boosted, “I decided to go for broke and take my best shot at law school,” he says. This decision was sound enough, yet Terry still found a way to improve upon it by logging hours watching trials and trial attorneys in particular. “I went to the courthouse, watched a number of criminal trials throughout the summer prior to my first semester of law school and stumbled upon a DUI trial where I watched this guy Cole Casey. His ability in the courtroom immediately jumped out at me,” he says. “He had that same magical articulate ability I’d seen so many lifetimes ago. I immediately approached him and asked if I could work for him, for free.” 10

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Casey was agreeable to having Terry come and work with him, and Terry dove into the work with gusto. The internship quickly became a paid position. Because he was attending law school full time, and putting in a minimum of 40 hours a week at Casey’s firm, Terry got used to late hours at the office. Unfortunately, as he neared the end of law school and was gearing up for the bar exam, Terry was dealt a terrible blow. His little brother, whom he refers to as the best friend he ever had, died suddenly. Admitting to being in a “haze,” Terry once again was stricken with self-doubt about whether or not he could finish, let alone pass the bar. Yet drawing from his resolution to fail before he would ever dare to quit, he not only finished school, but he passed the bar on his first attempt. For this, he credits his “beautiful wife Sarah. Without her by my side over these last few years, I don’t know where I’d be. My little family is the greatest thing that’s ever happened to me.” (His wife Sarah, a 1st grade teacher, gave birth to his only son, now 18 months old and “the apple of his eye”; they named him Philip Terry II, after Terry’s brother.) FOLLOW THROUGH FUELS FORWARD MOMENTUM Having worked for Casey throughout law school, Terry was already in the thick of DUI defense. He’d begun arguing DMV administrative hearings daily, cross-examining dozens of police officers & civilian witnesses every month. As he sharpened his advocacy skills, he began winning DMV hearings that many considered lost causes. For his part, Terry can see why people automatically assume the DMV hearing is an exercise in futility. “Less than 8% of DMV hearings are won each year,” he says. However, because he’d rather fail than not fight, Terry’s personal rate of success for clients is “3 or 4 times higher than that” due to the preparation he puts into these hearings.

“Win or lose, if you use the DMV hearing properly - taking the effort and expense to subpoena the arresting officer for testimony, that effort significantly increases your clients’ chances of winning at trial,” Terry says. For Terry, who planned to be taking plenty of cases to trial, this burgeoning expertise would serve him and his clients very well in the future. In fact, as word of his successes in DMV hearings began to spread, outside firms began approaching him to train their own employees, and still others hired him to argue on the behalf of their clients on a perhearing basis. Terry had begun making a name for himself. His forward momentum in the field of DUI defense continued to gain steam due to his excellence in oral advocacy. He was certified by the State Bar under the PTLS program; he was successfully arguing multiple motions to suppress evidence which resulted in full dismissals; he was even arguing before the Court of Appeals, on the same day he learned he’d passed the California bar. He second chaired multiple DUI trials with Casey, including vehicular manslaughter trials. Four months after becoming a lawyer, he was rewarded with a partnership at Casey’s firm. Terry learned a great deal from the legendary trial lawyers who came before him. Aside from simple inspiration, much of what he has learned and continues to learn has shaped his current professional philosophy. “I attended a seminar where attorney Mike Tigar was speaking. I’ll never forget something he said. ‘Most lawyers negotiate first, then prep for trial. I think that’s backwards. I prepare for trial… and then begin to negotiate. What a concept.’ Those words struck me. I decided then and there that I would prepare every single case as if it were going to trial first, and then negotiate,” Terry says. With his long history of sticking to his guns, it’s not surprising that Terry continues to abide by this professional principle. Moreover, he’s utilized his rigorous self-discipline to create other guiding principles for his practice. “Nobody is going to outwork

me. This has been said before, but this is my core belief. People may be more talented than me, they may even beat me in trial, but they will not outwork me,” he says. Whether that means he’s in the office until daybreak, or he’s taking on a case with 14 hours notice before jury selection (a case in which he hung the jury on all counts), Terry will not shy away from hard work and long hours. Likewise he will never pass up any opportunity to learn more, whether that comes from additional training, from reading, or from looking to his idols. He answered ready for seven trials in 2010, all DUI’s. He readily admits he lost two. The other five ended without a single conviction of DUI on any count – including a 2nd offense DUI allegation – with a hit and run; verdict of not guilty on all counts. “Cole happened to be in the courthouse on another matter that day and it was pretty cool to turn around and see him smiling proudly.” He capped off 2010 with an appeal that overturned a DUI conviction, based on a 4th Amendment challenge to the detention. Additionally, in 2010, he graduated from the National College of DUI Defense Summer Session, held at Harvard Law School. In 2011, he graduated from La Pier’s rigorous DWI Detection and Standardized Field Sobriety Testing course; he is now certified in Standardized Field Sobriety Tests under NHTSA (National Highway Traffic Safety Administration). He recounts the careers of Gerry Spence, Edward Bennett Williams and Clarence Darrow as inspiring, and spends free time reading about all of them. “My long term goal is to build the West Coast equivalent of Williams & Connolly.” “I want to be like that. I’ve got one life to live and I just want to do something worthwhile, something extraordinary,” he says. For him, that means defending those who have also found themselves in over their heads, ashamed and remorseful. “The people I defend are by and large good people. They are professional people with good values, are often extraordinary Attorney Journal | Volume 106, 2012


ONWARD AND UPWARD As Terry’s star continues to rise, he remains steadfastly committed to the principles that have proven so profound in his career thus far. By looking to the life work of attorneys he admires, by continuing to study concepts of law, by welcoming hard work, and by always preparing for a fight, Terry’s main objective is to further mastery of his craft. “To master your craft, to be the absolute best lawyer you can be, you have to get in the fight,” he says. “The skill and determination on the prosecuting side of the courtroom is second to none. If you are a defense attorney in San Diego, representing a client accused of DUI — and you try cases with any sense of regularity, you know one thing to be true: a defense attorney that is almost as prepared as a prosecutor will lose every time. Regardless of innocence or guilt. But here’s the second part: if you are a DUI defense attorney going to trial in San Diego County, and you are equally prepared and as practiced as the prosecutor across from you, you will lose every time. Regardless of innocence or guilt. To even have a chance at winning DUI trials in San Diego County, or to obtain the best possible plea bargain during a DUI defense / prosecution in San Diego County, you must be the most prepared advocate in the courtroom — every time. You must have a commitment to excellence in everything you do for your client. If you don’t, the end result is predictable. And it won’t necessarily be justice.” Spoken like a true idol for future attorneys, wouldn’t you say? n Matthew Terry, Esq. Law Offices of Matthew Terry, A.P.L.C.  3111 Camino Del Rio North - Suite 400 San Diego, CA 92108 T (619) 630 5301 F  (619) 878 2480 www.TerryDefense.com


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citizens who participate in lots of extracurricular activities for the good of the community. I see them when they come in, and they have generally always learned their lesson, and now need someone to help them. I’m going to do whatever it takes to help them,” he says. To the good fortune of his clients, Terry is more than happy to help, because he enjoys what he does so much. “Winning is addictive,” he says simply. While he loves to win at trial, he admits that he doesn’t get to go to trial as often as he’d like due to pretrial maneuvering, causing a case to settle for significantly reduced charges. He sheepishly admits to calling for prosecutorial misconduct in one particular case, which admittedly “ruffled some feathers.” But he makes no apologies for upsetting opposing counsel when it comes to saving his clients. Perhaps it is precisely this willingness to go the extra mile that has earned Terry a tangible acknowledgement as a rising star in the field of DUI defense. At just 35 years old, in January of 2012, he was awarded the position of State Delegate for California representing the National College of DUI Defense, an honor bestowed upon only one attorney per state. This year he also launched his own practice, The Law Offices Of Matthew Terry, A.P.L.C.


• Chico State University: Bachelor of Science in Business Administration / Financial Management • Thomas Jefferson School of Law: Juris Doctor


• National College of DUI Defense, Summer Session at Harvard Law School • DWI Detection and Standardized Field Sobriety Test Certification Program (La Pier) • Nominated for 2011 Outstanding Young Attorneys for the SD Daily Transcript

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Attorney Journal | Volume 106, 2012





nSan Diego Neutrals, LLC has announced that Michael Briggs, Arbitrator and Mediator, has been appointed to the roster of neutral mediators by the Financial Industry Regulatory Authority (FINRA). Mr. Briggs has been a premier arbitrator on the panel of neutral arbitrators of FINRA and the American Arbitration Association plus other dispute resolution panels for over 15 years. Mr. Briggs is also a mediator on the San Diego Superior Court Civil Mediation Panel.

n Fish & Richardson has been named a 2012 “Go-To Intellectual Property Law Firm” for the top Fortune 500 companies. According to April issue of Corporate Counsel magazine, this “noteworthy achievement” is an honor that puts Fish “in an elite group that delivers exceptional work for the Fortune 500.”  Fish was named a “GoTo IP Law Firm” by nine Fortune 500 companies including Allergan, Inc., Google, Inc., and Target Corporation.

“Clients come to Fish with their most important, bet-thecompany patent cases and their toughest IP challenges because they know we will consistently deliver quality, results, and value,” said Peter J. Devlin, President of Fish & Richardson.  “It is an honor to have the trust of America’s largest companies and to see that reflected in this survey.”



nDLA Piper is proud to announce that 58 lawyers have been promoted to its partnership across a wide spectrum of practice areas throughout 15 countries. In San Diego, Erin P. Gibson was named partner, then working in the practice areas of Intellectual Property and Technology. Her concentrations lie in civil trial practice in federal courts with an emphasis on patent litigation and International Trade Commission (ITC) proceedings. Gibson is an

Attorney Journal | Volume 106, 2012

adjunct professor at the University Of San Diego School Of Law, an officer of the San Diego County Bar Association’s Legal Ethics Committee and a member of DLA Piper’s Pro Bono Committee in San Diego.

nChris Shoff has been promoted to partnership at DLA Piper, focusing his practice on corporate and securities law with an emphasis on representing emerging growth and established technology, clean technology, medical device, biotech and healthcare services companies and the venture capital firms, strategic investors and investment banks that finance CHRIS SHOFF these companies. Shoff’s venture capital financing experience includes representation of companies and investors in over 200 equity and debt financings. His core practice consists of representing companies in these transactions, which have been led by some of the leading venture capital firms, strategic investors and angel investors. Shoff also regularly represents corporate investors such as Pfizer Inc. (PFE) in their strategic investments. Shoff has represented issuers and underwriters in IPOs and other public offerings of companies such as Altiris, Inc. (acquired by SYMC), Halozyme Therapeutics, Inc. (HALO), Myriad Genetics, Inc. (MYGN), NPS Pharmaceuticals, Inc. (NPSP), Omniture, Inc. (OMTR) and Overstock.com, Inc. (OSTK). Shoff is General Counsel, pro bono, to Operation Homefront, Southern California, a non-profit organization which provides financial and other assistance to the families of military service members and wounded warriors.

nFish & Richardson principal Juanita Brooks has been named one of California’s Top 75 Intellectual Property Litigators by the Daily Journal. Four attorneys from San Diego were included on the list, with Brooks being the only local female attorney. JUANITA BROOKS

The Daily Journal honor included a summary of Brooks‘ representation of Irvine-based Allergan Inc. against generic pharmacetuical companies in

COMMUNITY news 2011Hatch-Waxman bench trials in which she persuaded judges in two cases that the patents for Allergan’s drugs were valid. In one case, the court’s decision stated the defense expert’s credibility was “eviscerated on cross examination” by Brooks. The Daily Journal also noted her representation of Microsoft in its longstanding patent infringement suit with Lucent Technologies. Brooks has received many honors for her trial work throughout her 35 years of legal practice. Every year since 1987, Brooks’ peers have voted her as one the Best Lawyers in America.

nThe Lawyers Club of San Diego, representing more than 1,000 attorneys in San Diego, has become the latest Bar Association to support the candidacy of Superior Court Commissioner Terrie Roberts for the office of Superior Court Judge Office 24. Roberts was selected by Superior Court Judges in 2008 to serve as a Superior TERRIE ROBERTS Court Commissioner. Roberts has already received the endorsements of Sheriff Bill Gore, police and over 90 Superior Court Judges and Commissioners. In addition, the following Bar Associations have endorsed Roberts: San Diego La Raza Lawyers of San Diego, Filipino-American Lawyers of San Diego, Earl B. Gilliam Bar Association, Pan-Asian Lawyers of San Diego, Iranian American Bar Association, South Asian Bar Association, Korean American Bar Association, and Tom Homann Law Association. The Lawyers Club of San Diego seeks to advance the status of women in the law and society. Lawyers Club is a specialty bar association, comprised of female and male attorneys, judges, law students and others in the San Diego community who share common interests and goals.


nOn May 1, 2012 more than 300 lawyers, judges and members of the community gathered to honor the San Diego County Bar Association Community Service Award Winners. The Gomez Law Firm founder and Lead Trial Attorney John Gomez was recognized for his work on behalf of numerous community organizations including the Ronald McDonald House Red Shoe Day, the March of Dimes, The National Latino Police Officers Association, The California

Youth Athletic Center and the Chicano Federation. Other organizations benefiting from his generosity include the Makea-Wish Foundation and Rady Children’s Hospital. TGLF team members and John’s family turned out to cheer him on, in keeping with the firm’s commitment to public service.

n Yosina Lissebeck, bankruptcy attorney at Solomon Ward Seidenwurm & Smith will be awarded with the SafeKids San Diego Person of the Year award this June, for her dedication to injury prevention in children. Lissebeck’s daughter Rylie nearly drowned at 14 months old in a kiddie pool at day care, prompting Lissebeck to raise awareness of YOSINA LISSEBECK drowning prevention. She chairs the Drowning Prevention Task Force with SafeKids San Diego, volunteering tirelessly for the organization, of which she is also the current President. “Without the compressions and rescue breaths provided to Rylie by the [childcare] provider, I do not believe my daughter would have recovered from this terrible accident,” she says.

nSandra L. Shippey, Partner at Procopio and co-founder of the group, acknowledged that “Our Aviation Practice Group brings to each aircraft acquisition and sale transaction a multidisciplinary approach that combines aviation regulatory, financing and tax planning expertise to provide clients with a complete end to end solution for their specific needs.” The group consists SANDRA L. SHIPPEY of an experienced team of attorneys from multiple practice areas, including business, finance, regulatory, intellectual property, litigation, real estate and tax and estate planning. The core group also includes Eli W. Mansour, Partner at Procopio; Dana R. Bessenecker, Real Estate Attorney; Jon P. Schimmer, Tax Attorney; Edward C. Walton, litigator.


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Class Act by karen gorden

From Defending International Companies to Class Action Suits, Nicholas & Butler LLP is a Sophisticated, Word-Of-Mouth Practice Where People Come First.


or Craig Nicholas, founding partner of Nicholas & Butler LLP, the first inkling that he wanted to start his own practice began in early 2005 when he read a quote by Theodore Roosevelt, who said “It is hard to fail but it is worse never to have tried to succeed.” Nicholas, who was already growing restless in his position as a partner with a San Diego business and antitrust litigation firm, was spending his time wondering “what it would be like to take a risk and start a law firm built around my idea of what a law firm could be,” he recalls. Then came the backbreaking straw, which prompted him to make the change. “I sat in a partners meeting and one of the partners said that the people don’t matter, that we are all replaceable. I disagreed completely and decided then and there that I would leave that firm, and start a new firm based on a different concept of what a law firm could be, because not only do the people matter; the people you work with and the clients you work for are everything.” Finding The Perfect Partner Nicholas, who comes from a family of attorneys (his father, twin brother, older brother, and sister are all practicing attorneys), needed to find a partner who shared his vision for forming a people-centric firm. He found that perfect partner ironically, in opposing counsel.


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“When we met in court, Matt Butler did not have the facts on his side, but he fought hard, with courage and tenacity. He was a tiger in litigation! I admired that and we became friends when we served together on the California State Bar Young Lawyers Board of Directors,” Nicholas says. Moreover, as their friendship grew, they recognized that they shared a similar vision for what a law firm ought to be, and how it ought to serve its clients. “We knew we had to make the entire firm results driven. That is what the client cares about, not how many hours you or an associate bill in a year. They don’t care whether your office has a chandelier or not. A lawyer and client must have the same objective: winning. When that is the clear goal for the client and the lawyers on the team, a path to victory will appear,” Nicholas says. Equally as important as knowing what their firm should be was knowing exactly what they would not allow it to be. “The single biggest client development mistake lawyers make is not recognizing that it is not about what other people can do for you. New lawyers in particular should focus on the hard work of learning how to be a trial lawyer rather than developing clients, because you must have top notch skills to sell before anyone will buy them,” he adds. By way of example, his partnership with Butler made sense as both had extensive experience as trial attorneys on both plaintiff and defense sides. “Lawyers that




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represent one side have a tough time seeing the whole picture. It’s important to know the perspective, goals and strategy of your opponent to be successful and practicing on both sides enables that.” With Nicholas’ platform of business trial work, together, the two have the resources which very few exclusively plaintiff law firms have to fight on behalf of wronged consumers and employees in a class action case. The foundation was thus laid for the two to join forces, with the end goal to be in a position to represent local, national and international companies in trials and also be able to champion the rights of individuals in class actions. Indeed, Nicholas & Butler, LLP was built and designed to handle large, high-risk trials on either the plaintiff or defense side. That means That means that the team is often representing ‘death of a company’ suits. A case in point was Nicholas & Butler LLP’s recent obtainment of a certification of a landmark ERISA $200 million class action against an insurance company. Nicholas acknowledges that this is unusual for a firm of less than 10 attorneys, but says “We don’t shy away from the big case or opponent, we embrace it.” Nicholas and Butler clearly agreed on the client base the firm would target, but how would they reach those clients? For a firm that didn’t advertise, how were people even going to know about them? Collaborating with Colleagues Good old-fashioned word-of-mouth referrals get credit for the success of Nicholas & Butler LLP. In fact, Nicholas estimates that a whopping 70% of the firm’s clients are referrals, with the remaining clients being existing clients returning with new matters. “We don’t advertise,” Nicholas says honestly. continuing, he adds, “But we didn’t start out with $200 million class action suits,” he says, laughing. We started out much smaller. $200,000 grew to $5 million, and so on,” he says. Understandably, however, the size of the cases started growing exponentially as Nicholas & Butler became victorious in more than 80% of their trials. “We are business trial lawyers, not just litigators. We’ve obtained dismissals on behalf of international companies of lawsuits claiming more than $10 million, while achieving settlements of $5 million and $10 million on behalf of consumer and employees. We’ve appeared at the United States Supreme Court to fight a consumer rights case against Fortune 500 Companies. We welcome high-risk litigation. We thrive on the tough case against the biggest opponent,” Nicholas says. As a result of the victories the firm has achieved for clients in these high-stakes cases, in recent years, Nicholas & Butler LLP has realized an enormous bump in business as a result of joint ventures with other firms and attorneys. “We co-counsel a large percentage of our cases as jointventures,” Nicholas says. We enjoy joint venturing cases with other law firms and bringing different ideas and talents into a 18

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case. It’s very common for us to be contacted by a colleague who has a great case on an individual basis, but they aren’t sure if they can make it a class action. We will work side by side with them in a joint venture,” Nicholas says. This venturing pays huge rewards for the referring attorney, and not just in referral fees, (although Nicholas & Butler LLP insists upon paying a fee for each referral). The referring attorney often gets linked to a major case, which builds credibility and publicity. Moreover, they stay involved in the case, retain their client and get to be a part of something much bigger than an individual suit. Certainly however, the main reason that Nicholas & Butler LLP receives so many joint-venturing cases is due to the tireless work the 7 attorney office puts into the cases. “The in-house and outside attorneys we work with have put their reputations on the line by referring us a case or a client. We have to do everything possible to make sure that we honor that referral and get the results the client and referring attorney want,” Nicholas adds. Like Attracts Like Of course, to take on the cases that Nicholas & Butler so successfully tackle, the two attorneys need the support of their firm, which includes seven attorneys and several supporting staff members. However, in Nicholas’ mind, no one in the firm is merely a hired hand. Sticking to his convictions that people

do matter, in all areas of law, Nicholas has no desire to hire a “clock-puncher.” “I interview everyone who comes to work at Nicholas & Butler, LLP. From the part-time file clerk and up, I want to know what to know what their core motivations are,” he says. That same drive to understand the motivations of potential candidates extends to attorneys the firm has hired as well. “I spend a lot of time with potential attorneys to get to know them,” he says. But what he absolutely doesn’t do is hire attorneys based upon an academic resume. “I don’t hire academics. I hire trial lawyers because that is what the clients want. I find lawyers that can go to court, work with clients, are passionate about their work and win trials.” Nicholas admits this is mandatory for his small firm. “Lots of people can write great briefs. In a large firm, attorneys may only write briefs, and that works fine. But in a small firm, we don’t have the luxury of hiring attorneys with limited skills. They must be able to write great briefs, of course. But they also may be second chair, interfacing with clients, and more. We need a diverse skill set, which isn’t necessarily reflected in their law school ranking,” he says. Naturally, all attorneys at the firm are also of the mindset that “we’re not going to talk about hours. We’re going to talk about getting the win,” Nicholas continues. Similarly, the team is committed to having a positive attitude, as “it is difficult to build a great practice if anyone is too cynical or negative.” Attorney Journal | Volume 106, 2012


The Risk Proves Worth The Rewards Clearly, Craig Nicholas has come a long way from merely daydreaming about what a law firm could be. He is convinced that Roosevelt was right on the money, and that it certainly has been better to try and fail than to have never taken the chance to build a new firm with a new vision. Fortunately, Nicholas didn’t fail, but that wasn’t mere luck. By ensuring that everyone –from clients to colleagues, referring attorneys to co-counsel, to attorneys within his own firm - know just how much they matter to him; he’s carved a niche as a proverbial Little Engine That Could (and would) take on the behemoths and fight to a successful finish. In regards to the future, Nicholas & Butler remains firmly planted in what it knows and does best, complex business trials, with an emphasis on high-risk cases. Nicholas predicts that the firm will double in size within the next five years, due to the volume of referrals receiving, and the size of the cases the firm is taking on. However, no matter how big the case, nor how large the firm grows, Nicholas is quick to note that people will always, always matter most. n


Associates also abide by the firm principle of paying referral fees. “Your word is your bond. If you promised to pay a referral fee, pay it. If you agree to a share a fee, split it fairly. When your peers know you can be counted on and trustworthy, it pays off,” he states. Finally, Nicholas explains that at Nicholas & Butler, “we celebrate and advocate for our peers and they will do the same. The insecure lawyers who put down their colleagues don’t get ahead.” To show appreciation for the hard work that associates put forth alongside Craig and Matt, “lawyers at Nicholas & Butler are rewarded for successful outcomes more than hours billed. The point is to align the client’s goal - success in trial - with the lawyer’s goals. We reward team members for taking risks without worrying about failure. Clients need attorneys that can see a path to success, rather than being overcome by the fear and risks of litigation,” Nicholas says.

»»EDUCATION: • B.A. Political Science, University of California at San Diego, cum laude honors • J.D. University of Arizona College of Law, cum laude honors

»»ASSOCIATIONS AND AWARDS: • San Diego Super Lawyers 2008, 2009, 2010, 2011, 2012 • Top Attorney, San Diego Daily Transcript 2009 • Fellow, Litigation Counsel of America Trial Lawyer Honor Society • Executive Board of Directors, William Enright Inn of Court, 2001 • President and Board Member, State Bar

Nicholas & Butler, LLP 225 Broadway, 19th Floor San Diego, California 92101 t 619 325 0492 f 619 325 0496 www.nblaw.org E-Mail: cnicholas@nblaw.org 20

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of California Young Lawyers, 2000

»»AREAS OF PRACTICE: • Class Actions • Unfair Competition and Trade Secrets Litigation • Business Litigation • Labor and Employment Litigation • Wage and Hour Law

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Attorney Journal | Volume 106, 2012


THE VOLUNTEERS OF SDVLP: by teresa warren

he $4 million Difference!


arie Rose was just two years old when her mother passed away. The adorable little girl had been brought to San Diego by her mother from Haiti without proper documentation. Now living in the foster care system, the federal government wanted to return Marie Rose to Haiti. A social worker contacted San Diego Volunteer Lawyer Program and requested help. Marie Rose’s extremely young age, lack of any known family members in Haiti,


Attorney Journal | Volume 106, 2012

and the poor country conditions - particularly after the devastating earthquake - would have made it virtually impossible for her to survive in Haiti. SDVLP quickly took action by successfully applying for temporary protective status on behalf of Marie Rose and obtaining a green card based on her special immigrant juvenile status.  With this status, Marie Rose’s deportation case will be closed, and she will be able to remain permanently and safely in the United with a caring family.

Above from LEFT to RIGHT: Volunteer lawyers help staff SDVLP’s annual Women’s Resource Fair held at Golden Hall in downtown San Diego. The fair draws hundreds of women who need a variety of community services. SDVLP staff attorney Leslie Shields works with a client on a guardianship matter during a clinic at SDVLP’s downtown San Diego location.

Marie Rose’s story is, unfortunately, not unique. She is just one of the 5,000 individuals that SDVLP helps each year through difficult, often tragic, situations that require the special skills and care only an attorney can provide. SDVLP is often the only place these special clients can turn. Without the volunteer efforts of more than 300 private practice attorneys each year, Marie Rose and the many others like her would go without help. Some in the legal industry believe that it is a lawyer’s ethical responsibility to provide pro bono assistance. Others do it as a way to give back to the community. Still others do it for pure enjoyment and the special feeling of knowing they are making a difference. “My first pro bono case was one regarding financial elder abuse/identity theft in which I assumed representation of an 82-year old victim who was facing potential eviction,” states Andrew Kessler, an associate with Procopio Cory Hargreaves & Savitch and SDVLP’s 2011 Attorney of the Year. “Although the case took some time and required learning a new area of the law, it was simple to do. More importantly, my reward, in the form of the client’s heartfelt appreciation, is something I will never forget. “ Founded in 1983, SDVLP is the largest provider of pro bono legal services in San Diego. Unlike other local free legal service providers whose good works are done primarily by staff attorneys, SDVLP is based upon a volunteer model. According to Amy Fitzpatrick, SDVLP’s executive director, “Volunteers are the heart of our organization. We simply could not exist without the local attorneys who come forward and give of their time.” Each year, SDVLP provides legal services valued at $5.5 million, all at no charge to clients. Amazingly, this is done with a budget of just $1.5 million that covers a staff of 21 at SDVLP’s four locations throughout the county. Volunteers provide the $4 million difference. One such volunteer attorney made a significant, life-long difference in the life of 12-year old Katie. After coming to SDVLP’s walk-in Guardianship Clinic, Katie’s brother, Brian, and his wife, were introduced to volunteer lawyer Rebecca Levine, who was assigned to help. The couple was seeking custody of Katie, who had been living with them since her mother attempted to set fire to their house while under the influence of alcohol. Katie’s father was unwilling to care for her, and, due to her mother’s alcoholism, it was not safe for Katie to remain in her mother’s care. San Diego County’s Child Welfare Services indicated that if Katie was returned to the mother, CWS would have to put Katie into foster care. After months of contested court proceedings, Brian and his wife were awarded custody and Katie is now in a stable home where she is happy and safe.  On her last report card, she received straight A’s.           SDVLP has two Guardianship Clinics, one located in

downtown San Diego and the other in Vista. Each year, the clinics assist hundreds of relatives and non-relative caretakers in obtaining legal guardianship of children in their care. Both clinics have walk-in hours each week during which a SDVLP staff member greets them and learns more about their situation. From there, the case is assigned to a volunteer, assuming the client meets SDVLP’s financial eligibility requirements. Because there is no charge for any of SDVLP’s services, potential clients are carefully screened. SDVLP sponsors a variety of other clinics and provides a broad range of services in addition to guardianship law, including domestic violence prevention, family law, AIDS law, immigration law, children & youth law, class action and impact cases, elder law, services to the homeless and support to non-profit organizations. “SDVLP gives attorneys the opportunity to provide services in an area of interest to them, even if they have no experience in that particular area,” states Fitzpatrick. “We have IP attorneys doing impact litigation and real estate lawyers assisting domestic violence victims. All that is required is the desire to help.” The organization provides training for lawyers and staff support, as needed. Volunteers can donate as little as three hours a month. Many provide hundreds of hours per year. In 2011, SDVLP awarded 65 Distinguished Service Awards to volunteers who gave 150 hours or more and 147 Wiley Manuel Awards to those who donated 50 hours or more. Lawyers aren’t the only ones who support SDVLP through volunteerism. Many of the award honorees were law students who find the experience of working with SDVLP not only rewarding but a tremendous opportunity to develop legal skills and experience. Students from the local law schools of USD, California Western and Thomas Jefferson regularly participate in clinics and work with clients. “We understand that not all attorneys can give of their time…some practices are busier than others,” says Fitzpatrick. “We always welcome and appreciate financial support from individuals and law firms. Without the generosity of the local bar, we’d be hard pressed to make our budget each year.” SDVLP is also recognized for holding one of the most creative and unique fundraisers in San Diego: LAF-Off (Lawyers are Funny). A comedy competition held each year in the spring, LAF-Off features young and seasoned lawyers pontificating on the amusing side of practicing law and life as a lawyer. A panel of distinguished judges and former LAF-Off participants crown the winner. “We’re told by judges and lawyers alike that it is a yearly event not to be missed,” says Fitzpatrick. All proceeds from LAF-Off go toward supporting the nonprofit. For more information about San Diego Volunteer Lawyer Program, please visit www.sdvlp.org. n Attorney Journal | Volume 106, 2012


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

Many law firms talk about value as if it’s a new concept. At Fisher & Phillips LLP, our commitment to value dates back to the founding of the firm nearly 70 years ago. So how do we provide this value? We do only one thing: Represent employers in labor and employment matters. You benefit from our deep and broad expertise in the area of the law we know best. Our attorneys treat your legal problems as business problems, and help you avoid legal disputes. We are responsive, we are economical, and we reward our associates for quality work, not just for billable hours. We are national and local, with attorneys in 27 offices around the U.S. For more on the Fisher & Phillips Value Statement, go to www.laborlawyers.com/value.

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

Spencer C. Skeen Partner sskeen@laborlawyers.com

Fisher & Phillips attorneys at law


Solutions at WorkÂŽ

Attorney Journal | Volume 106, 2012



Attorney Journal | Volume 106, 2012








or more than 70 years, Higgs Fletcher & Mack has stood as a pillar of legal stability in San Diego. With a history reaching back to 1939, the firm is not only one of the oldest law firms in the city, but today is one of the largest. However impressive those statistics are, they


Attorney Journal | Volume 106, 2012

are not the defining characteristics of the firm. Instead, what sets Higgs Fletcher & Mack apart is its ability to identify the needs of the citizens and the businesses of San Diego, and most importantly, its willingness to adapt and evolve to meet those needs. In a twist of irony, it is precisely Higgs Fletcher

& Mack’s flexibility that has made them so stable. Adaptability As A Tool For Growth To John Morrell, Chairman and Managing Partner of Higgs Fletcher & Mack since 1997, being flexible means that the firm abides

by a principle of constant awareness to ensure that it is always providing the services that the people of San Diego specifically need. “In the last ten years, the firm has greatly evolved to focus on the San Diego region, and the business community within it; we have been built to handle what happens here,” says Morrell. While “local focus” is a pillar of their business, so is their “universal expertise,” which has allowed them to have an impact beyond the San Diego region. “It might be something that comes cross border with Mexico or Latin America, handled by our Cross Border Team, or conceivably from China, where we have added talent to address that expanded need.”  “We are very mindful of what our community looks like. San Diego’s main business thrust is small and medium-sized businesses. There are very few Fortune 500 businesses with headquarters in San Diego. We are a middle market community. “ That means, of course, that there are certain costs those businesses are able to absorb when it comes to their legal needs, and Higgs Fletcher & Mack is committed to providing those services at prices that their clients can afford. Moreover, the firm is committed to being highly in-tune with the economic climate in San Diego, whatever that may be. “We have to change the way the economy changes. Internally, our business has had to change to represent the new economy,” he says. Diversity Drives Development In response to San Diego’s drastic cosmopolitan shift over the decades since Higgs Fletcher & Mack’s inception, the firm has made it a point to ensure that the skill sets, and, indeed, the composition of the attorneys of the firm mirror the everchanging demographics of the city. Higgs Fletcher & Mack has accomplished this through numerous diversity initiatives. For years, the

firm has been a sponsor of minority bar group events, including Lawyers Club of San Diego, Tom Homann Law Association, Earl Gilliam Bar Association, Jackie Robinson Y, and the Iranian American Bar Association. Similarly, the firm was one of the first in San Diego to sign the San Diego County Bar Association Diversity Pledge in 2007. This pledge serves as a guideline for fostering diversity within the legal profession in San Diego. Higgs Fletcher & Mack took this basis of the pledge one step further, and implemented a Diversity Committee within its own practice to remain committed to the importance of an increasingly diverse law firm. Further, in 2010, the firm publicly declared its dedication to diversity through the establishment of a $10,000 Diversity Scholarship at the University Of San Diego School Of Law, making it the first of its kind at USD. Higgs Fletcher & Mack clearly demonstrates its commitment to diversity in the community at large. Not surprisingly, the firm’s outward efforts perfectly mirror the inner workings within the walls of the Columbia Center, which houses the firm’s nearly 70 attorneys. Diversity is unequivocally the driving force in the firm’s ongoing development and continuing success. Like Attracts Like (Mindedness) “We don’t hire labor,” says Morrell. “When we are looking for a new hire, we are looking for someone who has a skill set that will enable them to move up the ladder to ownership. We expect those who come in for a position to have a skill set that we need. We aren’t just trying to fill a certain labor need. We hire those with raw talent, and then nurture them so that they build and grow their own practice. If we don’t specialize in a certain area of practice, we want them to be excited that they can grow their

own,” he adds. Because of the firm’s eagerness and dedication to nurturing new attorneys, it’s not surprising that Morrell doesn’t worry about talent being romanced away by a competing firm. Of course, all potential hires are subject to a high level of scrutiny prior to being brought on board with the firm. “We need to make sure that not only are they a good lawyer, but they are a good person,” Morrell says. “The Firm Management allows lateral talent that has been vetted for excellence in skill and compatibility to run their own practices consistent with the Firm’s standards without micro management.” For this reason, Higgs is an attractive place for an attorney with their own book of business. This fluid management style is paying off for Higgs Fletcher & Mack and, more importantly, for their clients. The firm, which lists more than 20 practice areas on its newly designed website, recognizes the importance of expanding its practice in order to serve its clients as well as its new and longstanding attorneys. Indeed, this vast scope of practice areas positions the firm to handle all or most of a specific client’s needs, rather than forcing them to go to multiple law firms to have their legal needs met. An Evolving Image for An Ever Evolving Firm As for the new look, logo, branding and marketing efforts Higgs Fletcher & Mack unveiled in May of 2012? It’s all just a part of the firm’s long history of keeping up with the times. The updates to its website reflect its growing pool of attorneys and their various interests and passion projects. But most importantly, the sophisticated new look is a direct reflection of the changing dynamics of the city of San Diego that Higgs, Fletcher & Mack intends to serve for at least another 70 years. n

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THE TOP 3 COMPETENCIES OR STRATEGIES FOR A LAWYER TO SUCCEED TODAY ARE THE ABILITY TO GENERATE NEW BUSINESS, TO LEARN THE BUSINESS OF THEIR CLIENTS, AND NETWORKING. The first is an ability to generate new business. A partner in a law firm is not only someone who knows the law and can do the work for clients, but is also an entrepreneur who has to generate enough work for himself or herself as well as all the associates. Just like any entrepreneur, you need to build a business around yourself. It’s a critical element, today more than ever, that you not only be able to do good work but also generate new business, so that you have work for yourself as well as all of the people you work with. A second skill lawyers need to cultivate is to learn the business of their clients. This means going beyond the legal affairs of the client and actually getting to know the client on an extra-legal level on which you are really asking of the client: • • •

Top Competencies a Lawyer Needs to Succeed Today by larry bodine, Esq. Larry Bodine, Esq., is the Editor in Chief of Lawyers. com, the top online destination for finding a lawyer and the latest legal news for consumers. He has 11 years of experience as business development trainer who helped more than 250 law firms generate revenue and get new business. A former litigator, Mr. Bodine has operated 4 websites, and currently updates three blogs every day


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How does your business make money? What are your most profitable lines of services and products? What about your competitors? How are they threatening your client right now? You want to start a business conversation with your clients. That’s how you get a client for life. The third ability would be networking. It is more than just going into a room full of people that you don’t know and passing out a bunch of business cards. It’s more a relationship-building skill where you can walk into a room of people and, hopefully, you have done some homework, and you already know some of them. It’s not walking up to people and telling them “I do this and I have these great credentials.” Instead, you approach them and ask questions, such as, “Tell me about yourself.” It goes right back to Dale Carnegie, who said that a person’s most favorite topic is themselves, so why not bring that up in conversation? MOST COMMON BUSINESS DEVELOPMENT PROBLEMS The three most common reasons people call me are: • “Our firm just lost a major client.” • “All of our senior rainmakers are in their 70s.” • “None of the junior partners have ever originated a file.” They’ve discovered late in the game that they should have been working on business development all along, during the fat years and when there was plenty of work to go around. Now that the lean years are either upon them or threatening them, they call and say, “What should we do? Should we buy what? My response is, “No. I would recommend instead that you need business development training. You need to have someone spend a day with the attorneys away from the office, away from the telephones and interruptions, and basically spell out the different business development techniques.” The good news is that business development is a learnable set of skills. I started out as one of the most introverted, shy, tubby little boys that you could ever possibly imagine. Today, I’ve gotten to the point where I just love going out on a sales call. When I was a kid, if you told me that I would turn out this way, I would have

been astounded. The point is that business development can be learned, although it needs to be taught. Anybody who is smart enough to get through the bar exam and survive in a law firm has all the mental ability that is required to grasp a learnable set of skills. The key part is to have a training session. In the training session, you spell out the techniques, so that not only do the attorneys understand what to do, they know how to do it, because I find that in most law firms business development gets hung up on tactics. The lawyers want to know: What do I say? How do I make them like me? What do I do when I’m at a trade association meeting? If you can explain all those steps, then all of a sudden, business development becomes a lot easier. PERSONAL BUSINESS DEVELOPMENT PLAN Part two is the attorneys need to sit down and write a personal business development plan. It needs to be written down, just as you would write an entry in your calendar or it won’t get done. If you don’t write something down, you’re just not going to do it. It’s not real until you write it down. Focus on things in the following order. Focus first on your current clients. That’s the low hanging fruit. These are people who like and trust you and are sending you checks. And you just need to see if you can serve them and help them in additional ways. Focus on referral sources. These are people who are just as good as clients; they love you, they trust you, they send you business. The only thing missing is they don’t send you a check, but otherwise, they are just as good as a client. Find an organization in which to become active. The point is to join an organization of client, and not just to be a mere member of the organization. You don’t want to be a face in the crowd. You want to be on the board of directors; you want to be the program director; you want to be the newsletter editor; you want to have some position that’s visible so that you will become known to everyone in the organization. NO COLD CALLS You need to generate some new business and you need some education on what the techniques are; it then becomes so much less scary. You don’t need to make any cold calls; you don’t need to put yourself in any uncomfortable situations. I hate cold calls. My first job was selling encyclopedias and it was all cold calls. I just loathed the job and I remember swearing to myself, “I’m going to find a way to make a living that does not involve cold calls.” The wonderful thing about business development is, as was mentioned earlier, it’s all about building relationships. Start with the people that you already know. You probably have a huge network and you’ll never have to make a cold call. You just need to see the menu of techniques you can choose from, so you can pick the ones you like. But then you’ve got to write them down your plans and there’s got to be a date attached to each activity. Then when you actually start, it’s like the Nike slogan: “just do it.” And then when you do it, amazingly enough, new business comes in.

ASKING QUESTIONS, NOT SELF PROMOTION One lawyer asked me, “I realize that the reason I haven’t gotten enough clients is that I am afraid of promoting myself. There is a conflict going on inside of me. Promoting me feels like I’m not being authentic and true to the profession and myself. I am trying to portray an extremely valuable service and yet my feelings tell me I am not valuing myself highly and to believe my own words when trying to get clients. How do you deal with fear of self-promotion?” Let me make clear that good business development is not selfpromotion. In fact, what you should not do is go out and hype yourself or brag or really push yourself on or take advantage of people. That’s not how you generate new business. Think of the last time you went to buy a new car and one of the salespeople came over and started selling you and pushing something on you and asking you how big a monthly payment you could afford. That was totally repellent. I would encourage you not to promote yourself. That’s going to drive people away. You’re right; it doesn’t serve the profession. Rather, the attitude that I would recommend you adopt is: you want to get to know people, get to know your clients and potential clients, and ask them what is going on in their business. You want to start a business conversation. You want to find out, “Where are they making their money? What do they like about their business? Do they have any new products coming out?” Get executives to talk about their business and then along the way, probe for what we in sales call “pain.” You want to probe for business issues that they’re facing . . . problems they need to overcome, editors that are nipping at their heels. The old saying is “what keeps them up at night.” You’re not pushing anything. You’re asking questions. You want to draw out of them what their business pain is. Find out what their business problems are and then all you need to do is listen for an opportunity to say, “I can help you with that.” And that’s how you open a file. You really have to remember that legal services are not sold. Nobody is ever really able to sell legal services. Legal services are bought.; they are bought by business people and individuals who have a problem that they needed to have fixed, and they found a lawyer to do that for them. What you want to do is put yourself in a position where you’re constantly inquiring and looking for that person who has a need. The only way that you can find out about that need is to ask questions. It may turn out they have no needs. In any event, you’ve accomplished something by developing a new relationship or deepening one that already exists; and at the very best, you found out that they really have something that’s troubling them and you can help them. I think that’s the highest calling of this profession. n

Attorney Journal | Volume 106, 2012


Staff Infection Whether your legal secretary is a marketing asset or liability depends mostly on you by norm hulcher Hulcher & Hays, LLC is a Phoenix-Based Law Firm Marketing Consultant. Please visit www.hulcher.net for more information


Attorney Journal | Volume 106, 2012

“Ken” was having a bad day. Late and unprepared for a hearing that morning, he’d incurred the wrath of the judge, who took it out on Ken’s client. Another client, fed up with Ken’s not returning her calls, had just picked up her file en route to an appointment with her new lawyer. Two thirds of his accounts receivable were in the 90-day-plus category, one of which had been on the books for so long that he had to do his collecting in probate court. It had been weeks since he’d received a referral from anyone except sadistic attorneys whose mission statements include: If Someone Comes To Me With No Money, No Case or No Address, I Will Send Him or Her to Ken. His partners had just informed him that he – and he alone – wouldn’t be getting a draw for the next few months. And now he had to put up with me, my laptop, PowerPoint presentation and laser pointer, enumerating all the uncompleted tasks in his marketing plan. Staring longingly at the bottle of Cuervo 1800 on his credenza, Ken seemed to long for a Faustian bargain to deliver him from his plight. Finally, he said, “You know, sometimes I think I’m my own worst enemy.” Clearly, he needed a lift, and I was just the guy to give it to him. “Ah, come on, Ken, don’t be so hard on yourself. As your enemies go, you’re probably no worse than second worst.” He brightened. “Really?” “Absolutely,” I assured him, clapping him on the back and leading him over to his office door, which was slightly ajar. “Your worst enemy is right outside your door here.” Our heads vertically aligned, we peered through the narrow opening. He gasped. “No,” he whispered. “You can’t mean Constance.” “Yes, Ken,” I said. “Watch.” “Constance” was on the phone with a client who was doing most of the talking. Her patience obviously wearing thin, Constance was performing a seated, demonic pantomime of an angry caller, making flapping jaw gestures with the hand that wasn’t full of Cheetos. Her performance might have inflicted little immediate damage on Ken’s practice, but for the two slack-jawed clients-in-waiting who comprised her audience. “What in the world is she doing?” Ken whispered. “She’s working, Ken,” I said. “Haven’t you ever noticed this before? How long has she been with you, anyway?” “Three years, but I had no idea ... and why didn’t she tell me those clients are here?” At that moment, the caller must have stopped for a breath, because Constance took charge of the conversation. “Well, he can’t talk to you right now. He’s working on something. And he has important clients waiting to see him. I don’t know. What’s your number. What? No. I don’t know when he’ll be able to get back to you. (Pause) What? Well, you know, like, that’s your choice and” – the phone rings – “wait, I’m going to put you on hold now.” Instead of answering the other line, she stood up, hissed something about “these damn people,” and stomped off toward the kitchen. Ken sprang abruptly from his crouched position, the top of his head opening a large gash in my chin, my upper and lower incisors converging sharply on the tip of my tongue. While I rifled through his desk drawers, looking for something to staunch the flow of blood and wondering if my tongue had tied its last cherry stem in a knot, he paced frantically around his office. “This is terrible. What can I do? I can’t fire her – then I’d have to train somebody else, and that might take weeks.”

“Lissem oo me, Kem,” I said, blotting the tears from my eyes, “Laby Macbeff wou’ be be’er ‘an ‘at woma’. You haf oo kalk koo huh.” “’Talk to her?’ Look, you’ve tried to get me to do some crazy things but I am not going to do that. She might quit!” “Wha’eveh,” I said. “Iss you’ prakiss.” TEMPTING THE HANDS OF FATE No matter how successful you are in attracting new clients, and no matter how caring and sensitive you are to their needs, if you ignore the role of your secretary or receptionist in client relations, you’re tempting the hand of fate. Imagine that you’ve been courting a prospective business client for several months. You’ve done everything right: researched the company and its legal needs, taken the CEO to a Diamondbacks game (in San Francisco), written big checks to his favorite charities, changed your political affiliation and church membership so he’d know you’re his kind of people, and helped him clean out his garage. One morning, all of your schmoozing and bootlicking pays off: The CEO calls. Unfortunately for you, you never bothered to tell your secretary that you were courting this guy. So instead of interrupting your debate with a well-read clerk over which of Tom Clancy’s books was his best, she takes a message. And then you go to lunch. And then to court. And by the time you get his message and breathlessly return his call, he’s decided to use that other lawyer who did such a nice job waxing Mrs. CEO’s Hummer last weekend. INVOLVING YOUR SECRETARY In the interest of self-preservation, let me emphasize, con mólto passióne, that this is not an indictment of secretaries and receptionists. Rather, these more-or-less hypothetical anecdotes are offered as a warning to attorneys not to view their secretaries merely as organic extensions of their computer and phone. Your secretary can almost certainly do more to support your practice than type your documents, take calls, manage your calendar and pick up your dry cleaning. She can be a valuable partner in building your practice, if you’ll just take the time to involve her more in the strategic side of things. You and your secretary should meet at least once a week to keep each other current on a whole slew of important topics: new clients; important clients; problem clients; important items on your calendar; your work priorities for the week; complaints and compliments from clients; prospective clients and the things you’re doing to attract their business; appropriate thanks to recent referral sources; other client development projects; what she’s doing well, and what she could be doing better; and what you could do to help her be more effective in her work. THE SECRETARY’S ROLE IN CLIENT DEVELOPMENT Here’s how your secretary can help you in your client development efforts. She should: •

Solicit client feedback – Are you happy with our service? Is there anything you’d like us to do differently? Is there some way we could serve you better? – and tell you what she learns ... good or bad. Thank critical clients for their comments and tell you about them as soon as you have a free moment. She should also feel free to suggest how you might respond.

• • •

• •

• •

Help exceed clients’ expectations by underpromising and overdelivering. Always find out who referred clients and remind you to thank your referral sources. Familiarize herself with the expertise of other members of your firm and make effective internal referrals if you’re not available to speak with a prospective client whose needs are outside your practice area. Be tenacious in reminding you to return phone calls. Always sound pleasant on the phone and thank everyone – clients, prospects, adverse parties, opposing counsel, your marketing consultant, you name it – for calling. Be prepared to describe your practice to others – accurately, thoroughly, and positively. Be able to describe to others all of your firm’s major services.

BEWARE OF EXCESSIVE CANDOR In your supervisory role, keep a sharp ear for indelicate candor, such as: • “He’s hasn’t come in yet today.” • “He’s late.” • “Are you kidding? It’s only 9:30.” • “He’s still at lunch.” • “He doesn’t want to talk to you.” • “He’s reading the newspaper.” • “He’s in the bathroom.” • “He’s asleep.” • “This is his golf day. You must be new.” • “He’s getting his massage.”” • “He’s practicing his putting.” • “He’s fighting with his wife.” Obviously, discretion isn’t the only trait of a good secretary or receptionist. She should also exhibit: • • • • • • •

Sensitivity to the emotional conditions of clients; Cheerfulness and warmth in greeting clients; The ability to ask clients to fill out an intake form without making them think they’re at a doctor’s office; The ability to take accurate, complete phone messages that convey the caller’s sense of urgency; Restraint in badmouthing you or your clients in the presence of clients (or, for that matter, anyone else); The right balance of familiarity with, and professional distance from, your clients; and Professional manner and appearance.

SUPERVISING MADE EASY Your ability to assess your secretary’s work habits and your willingness to appropriately praise and reprimand her are two of the cornerstones of being a good supervisor. More important, though, is allowing your secretary and other support staff to be a functioning and contributing part of your practice and the process by which you hope to develop it. An axiom of leadership is, “People tend to support that which they helped create.” Give your staff creative input into your practice, and the resulting support they give you just might make growing your practice – and managing them – more productive and enjoyable. n

Attorney Journal | Volume 106, 2012




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Attorney Journal | Volume 106, 2012

Profile for Attorney Journals

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