Attorney Journal, San Diego Edition, Volume 109

Page 1


Volume 109, 2012 • $6.95

My Night with a Few Multimillion-Dollar Rainmakers

Stacy Clark


James Holtz James Hennenhoefer Jonathan Montag

Winning New Business with Legal Process Improvement

Roger Ledin

Where Have You Gone Flat?

Barbara Mencer Attorney of the Month

Lisa Damiani

Survey Finds Slow Adoption of Alternative Fee Arrangements for Legal Services

Larry Bodine


is pleased to congratulate our partner; Thomas C. Frost, for being named A Top Attorney 2012. We are proud of your recognition and pleased to have you honored for your tireless commitment to our clients and the legal system.

We represent: • Brokerage firms & financial institutions • Financial & investment advisors & financial planners • Defrauded investors (over $900 million recovered for our clients) • Companies & individuals in complex securities & business disputes Call or email us for a confidential analysis of your situation

erWIn J. sHUstAK, esQ.

tHOMAs C. FrOst, esQ.

• AV rated by Martindale Hubbell (highest level of professional excellence)

• AV rated by Martindale Hubbell (highest level of professional excellence)

• Named a “Top Influential for 2012” by The San Diego Daily Transcript

• Selected as a “Top Attorney” for 2012 – Corporate Litigation by The San Diego Daily Transcript

• Named a Southern California SuperLawyer® in 2007, 2008, 2009 (securities & business litigation) • Selected as a “Top Attorney” of 2005 by the editors of The San Diego Daily Transcript

• Member “Million Dollar Advocates Forum” having obtained a number of multi-million dollar awards for firm clients

• 36 years extensive legal experience

401 West A Street, 23rd Floor San Diego, CA 92101 619-696-9500

570 Lexington Avenue, 16th Floor New York, NY 10022 212-688-5900


2 0 1 2 E D I T I O N — N O .109


4 Music to his Ears

Peer Recognition for Doing What He Loves Is the Sweet Sound of Success FOR James Holtz. by Jennifer Hadley

8 Winning New Business with Legal Process Improvement



10 Fulfilled and Fascinated

40+ Years of Family Law and an Infinite Future in ESI Keep James Hennenhoefer Fulfilled and Fascinated With the Legal Field.


by Jennifer Hadley



16 The Face of Civility

The Damiani Law Group’s Criminal and Civil Defense Practice is the face of San Diego’s Unpopular and Vilified Defendants.

PHOTOGRAPHY Bronson Pate Vinit Satyavrata

by Jennifer Hadley



25 Immigration Innovation Attorney Journal’s September Snapshot by Jonathan Montag

28 Survey Finds Slow Adoption of Alternative Fee Arrangements for Legal Services.


by Larry Bodine 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

STAFF WRITERS Jennifer Hadley Bridget Brookman Karen Gorden CONTRIBUTING EDITORIALISTS Roger Ledin Barbara Mencer Stacy Clark Larry Bodine WEBMASTER S. Chorng

26 My Night with a Few MultimillionDollar Rainmakers by Stacy Clark

EDITOR Nancy Deyo CREATIVE SERVICES Skidmutro Creative + Layout


22 Where Have You Gone Flat?


ADVERTISING INQUIRIES SUBMIT AN ARTICLE OFFICE 10601-G Tierrasanta Blvd., Suite 131 San Diego, CA 92124 P 858.505.0314 • F 858.524.5808 ADDRESS CHANGES Address corrections can be made via fax, email or postal mail.

Music to his J

Peer Recognition for Doing What He Loves Is the Sweet Sound of Success for James F. Holtz

Ears by Jennifer Hadley

ames F. Holtz, Founding Partner of Stutz Artiano Shinoff & Holtz APC can still remember the day he learned that he’d been awarded Martindale Hubbell’s AV Preeminent rating in California, more than fifteen years ago. “This meant that my peers valued me,” he explains. For Holtz, who’d been with his firm since 1983, this recognition had a profound impact as an earmark of success. He’d found something he loved to do – practicing law – and was not only earning a living doing so, but was also being recognized by his professional colleagues for his expertise in the field. However, unlike many peers who wanted to practice law all their lives, Holtz never set about to become an attorney; instead he found himself attending graduate school to obtain a degree in English. One look at the job board while in grad school was all it took for him to shift gears. In his own simple terms, what made him want to become an attorney was “the prospect of unemployment… as a Ph.D. in English.” Holtz moved west from Wisconsin and enrolled in law school at USD.


Finding His Rhythm Following graduation, as an associate under the mentorship of Sidney Stutz, a Harvard Law grad, and winner of the Daniel T. Broderick Award for Civility, Holtz spent the first 15years of his legal career in coverage analysis and workers’ compensation. The work demanded that Holtz have a thorough understanding not only of insurance law, but of scientific and medical issues as well. Workers’ compensation suits required Holtz to understand medical records, and he delved into the studies. From working one-on-one with doctors, to studying the science of medicine and injuries,

4 Attorney Journal | Volume 109, 2012

Holtz spent years doing his own “mental analysis of how an injury happens,” he says. “It was very interesting. I like to try new things, and that’s why being a lawyer is a great job,” he explains. As a result of these years of dedication to learning the ins and outs of insurance coverage, Holtz had earned himself recognition in the field of insurance law as a true expert. In fact, his expertise lent itself to the next move in Holtz’ career, which was to share what he’d learned with others. “I decided it might be fun to be a law professor,” Holtz says candidly. With the same determination that led him

Photograph by Bronson Pate.





to enter law school in the first place, Holtz earned a position as an Adjunct Professor of Law at California Western School of Law, where he’s now taught Insurance Law and Litigation for more than a decade. “I understand how insurers function as well as understanding coverages of the policy,” he says simply. The ongoing desire to share that expertise extended beyond the classroom, and he soon published multiple articles on topical subjects in both legal and trade publications, including the Pacific Law Journal and the Insurance Journal.


Curiosity Proves Instrumental For all of his expertise in insurance, Holtz is at root, a man with a curious mind. Because of that, his working exclusively in insurance law felt limiting, and he began to branch out into other fields of business litigation, which coincided with his firm’s move from insurance defense into full service law. In particular, environmental law piqued his interest, as he found himself involved in the Duck Pond Landfill Dispute adjacent to National City’s ‘Mile of Cars.’ “That kind of environmental cleanup in the dealer’s suit for the City’s breach of contract was very stimulating. After a month of trial, before closing argument, I was able to put together a settlement of plaintiff’s claims against the City and establish a fund for monitoring and maintaining the landfill in perpetuity, with money from insurance companies who had pollution exclusions.” This case prompted Holtz to pursue a career which would ultimately result in a now 30+ year career in trial and appellate work in complex business and corporate litigation. As a result of his broadening areas of expertise, his clients grew to include Fortune 500 companies, local businesses and

individuals. To date, he has successfully handled cases involving business and contractual disputes, real estate and environmental liability, trademark and copyright infringement, employment discrimination, product liability, personal injury, medical and pharmacist malpractice and class actions. Moreover, Holtz has tried wrongful death and catastrophic injury cases, and has a specialized knowledge of medical and pharmacology issues.


6 Attorney Journal | Volume 109, 2012

Expertise Sets the Tempo However, for all of his success in various areas of law, Holtz’s deep-seated and thorough understanding of insurance policies and coverages makes him unique as a business litigator. “Most business litigators don’t have a background in insurance,” he says. This undoubtedly accounts for the large portion of his client base, which stems from referrals from other respected litigators who call on Holtz to assist in situations where clients have coverage problems including denial of coverage. “With more than 30 years of experience in the insurance industry, and as an adjunct professor teaching insurance law and litigation, I know how insurance companies think, as well as understanding coverages of the policy. As a consultant and advisor, I can often get a denial of coverage reversed with a letter or two. For defense work, I believe I am more thorough than most on scientific and medical issues,” he says. The thoroughness with which Holtz prepares, advises and consults with clients is largely rooted in the underlying M.O. of Stutz Artiano Shinoff & Holtz. “Because the client is

life as well. What started as fun grew to be a lucrative side gig for Holtz and his band members who-with the help of an agenthave played weddings, company events, and other venues since 1997. He admits to being surprised and delighted by being paid to do what he loved, and in fact was able to put one of his three daughters into private school from the money earned as a working musician. More recently, culling from a decades old experience wherein he discovered his love of blues harmonica, he’s begun playing at Hennessey’s Tavern at 4th & G Streets for The Stoney B. Blues Band Jam on Monday Nights. (Holtz’s unusual stage name, Mudbone was bestowed upon him by Stoney B. himself ).


Recognition Resonates Loudly

putting their trust in you, it is critical to listen and respond to clients, and put their interests first,” he summarizes. Yet it’s also rooted in Holtz’s natural predilection toward finding the work fascinating. He sheepishly admits that while most people would groan at taking, for example, an economist’s deposition, he finds the work interesting and stimulating. Moreover, he’s found that being able to work with “doctors, engineers, and software designers” fulfills his many diverse interests and his natural born love of learning and trying new things.


To The Beat of His Own Drum Holtz’s inquisitive nature, coupled with his can-do approach to learning, extends far beyond the law. In fact, it extends to music, which plays no small part in his life away from the office. He taught himself bass guitar at the age of 40 and began to pursue success as a musician. As a member of the six person band Legal Tender, (of which half of the members are attorneys), Holtz earned a great deal of success in doing what he loved in his personal

For Holtz, obviously the greatest accomplishment of his career has come from being able to do what he loves, and being successful at those things he loves. But what makes the success all that much sweeter is the recognition that he’s received from his peers. Much like those first feelings of accomplishment years ago when he earned the AV Rating in California from Martindale Hubbell, he’s recently been honored with that same AV Rating in the State of Nevada. Moreover, every year since 2008, he’s been recognized as a Super Lawyer, in the field of “Business Litigation.” The organization of Law & Politics performs the polling, research and selection of Super Lawyers in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers is a comprehensive and diverse guide to outstanding attorneys, representing a wide range of practice areas. Only 5 percent of the lawyers in each state or region are named Super Lawyers. Holtz is also listed in the 2012 Top Rated Lawyers, published by The American Lawyer Magazine. Holtz can’t seem to say enough how much it means to him to be recognized for his work by his peers, and counts himself very lucky to have the “great job of being a lawyer.” And while he’s thrilled with the success he’s had to date, he’s not comfortable with keeping things at the status quo. When asked about his plans for his professional future, he can’t keep the curiosity from showing through even when simply stating: “I look forward to continuing to do new things.” n

Contact: James F. Holtz Stutz Artiano Shinoff & Holtz 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106 Phone: (619) 232-3122 Fax: (619) 232-3264

Attorney Journal | Volume 109, 2012 7


hen a potential client asks why they should do business with your firm, do you struggle for an answer more substantive than, “because we’re really good lawyers?” Clients increasingly want to see the “why” that sets your firm apart — and Legal Process Improvement (LPI) can help provide the answer.

Winning New Business with Legal Process Improvement by Roger Ledin Roger is an executive consultant with over 25 years of experience at Fortune 500 companies as well as at small- to medium-size companies. He has an extensive background in developing and implementing strategies and processes at over 30 companies across a wide variety of industries. For the past 6½ years, Roger has worked on strategy and process efforts for Faegre Baker Daniels. Roger’s experience includes corporate and executive roles at IBM, Wells Fargo, and UnitedHealth Group, as well as consulting roles for numerous clients.

LPI helps you understand, and therefore better market, the detail behind your services. On many occasions for RFPs and marketing presentations, I have provided process diagrams of proposed services that clients can immediately relate to and then use as a benchmark for competitor comparisons. Setting the standard leaves a lasting impression and can significantly improve your chances of winning the business. The following simple example shows the roles, responsibilities, and sequence of tasks from drafting through signature of a real estate purchase agreement. These process diagrams should be easy to understand, with the boxes representing key tasks and the color coding designating responsibilities. This task and assignment information can then be used to set expectations for responsibilities and delivery of service. Getting everybody on the same page helps eliminate dropped handoffs and missed assignments. Clients really like these visuals because of the clarity they provide. In addition, with many clients already employing process improvement disciplines, speaking the “language of process” provides a distinct advantage. Your firm, in turn, reaps the benefits from the process improvements that help not only your firm’s bottom line, but also client satisfaction as delivery of services is more consistent and predictable. n



Attorney Journal | Volume 109, 2012

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Photograph by Bronson Pate.




40+ Years of Family Law and an Infinite Future in ESI Keep James Hennenhoefer


With the Legal Field

by Jennifer Hadley


ames Hennenhoefer, one of San Diego’s most well-recognized family law attorneys, is the first to admit that I “did not choose my area of expertise, it chose me.” In his case, that’s not merely a catchy cliché. As a junior officer in the Navy, Hennenhoefer initially planned a career in federal prosecution. “I was assigned collateral, investigative and legal duties on a major combatant. I really enjoyed the process of investigating criminal activity and the Court Marshal process itself,” he says. But in 1970, when he graduated from law school, he found himself facing a stonewalled system. “There was a massive hiring freeze,” he says. This drove him instead to join a firm that handled primarily personal injury and criminal matters. A “Forced” Niche Becomes a Forte “As the youngest and newest attorney, I was assigned the work that no one else wanted to do at that point. My first task was to handle or resolve a number of family law cases which came to the firm as a result of handling other matters for clients. In 10 Attorney Journal | Volume 106, 2012

short order, I realized that although no one else wanted to do this work, I enjoyed it,” he reflects. “[Family law is] more labor intensive than perhaps any other area of the law and involves handling matters that sometimes involve a person’s entire life. It involves helping people through one of the most difficult

periods of their life in most cases. It involves decision-making related to very complicated assets, business, and investments, and the custody and safety of minor children. Unlike most other areas of the law, it does not involve a single contract or an activity that took place at a moment in time. You are often dealing with events and activities that go back 30-40 years,” he says. Pleasantly surprised to find how much he enjoyed the work, Hennenhoefer knew that in order to devote himself thoroughly to the field he’d grown to love, he’d need to venture out on his own. In 1971, he opened the offices of James A. Hennenhoefer, A.P.C. “I decided to start my own firm simply because unless you practice family law, it is difficult to grasp the labor intensive nature of the cases. Larger firms tended to under-staff family law,” he says. Moreover he believes that “in order to properly represent someone, you must have control of the staffing, and ultimately control over the quality of the legal representation.” Hennenhoefer set about to build a firm that would offer that specific type of service to clients. Referring to his firm, he says that “we are unique in that most family law firms are small boutique operations that usually are not equipped to handle very large complicated cases. Our structure allows us to do so.” The structure that Hennenhoefer is referring to includes his team of four lawyers who are all California State Bar Certified Family Law Specialists. However, that’s really just the tip of the iceberg. “We have a retinue of specialists who work with us,” he says. From tax advisors to lawyers exclusively devoted to handling discovery, Hennenhoefer has built a firm of the “crème de la crème” of experts, working together as a “blue ribbon team” for clients. The ability to build these powerhouse teams is of course a virtue, and frankly, Hennenhoefer’s clients demand it. “Our client niche is cases with substantial assets wherein the parties enjoy a high income lifestyle,” he says. In dissolving these marriages, Hennenhoefer notes that most of the time, both parties are concerned with “making smart business decisions, with fewer tax problems.” Indeed he caters to a sophisticated clientele, which means that he’s also up against similarly equipped and sophisticated opposing attorneys. “You don’t get bored,” he chuckles. “There are constant variables that you don’t have in other areas of laws. This is not dividing up pots and pans. Every form of property, funds, or businesses can be at stake. There may be a restaurant business, or a coal business, and I wind up being an expert in those fields. It is therefore endlessly interesting,” he says.

Fascination Leads to Expertise in the Field of the Future It’s more than likely that this natural fascination with learning new fields is also what drove him to become a national expert in what he deems the “future of law.” Much like his introduction to the field of family law, although he never

intentionally chose ESI as a field in which he intended to become an expert, he soon found an untapped passion. Around the time that the California Discovery Act was signed in 2009, Hennenhoefer was working with a large CPA organization. The firm had planned a large seminar on Electronically Stored Informations and there was a gaping hole in their agenda. Hennenhoefer offered to fill the spot. He admits to a bit of an ‘uh-oh’ moment, but didn’t skip a beat, and teamed up with attorney Gordon Cruse before signing up for a crash-course in the field. “The management of data and how we discover it protect it and get it into evidence certainly comes into play in family law,” he says. Emails on one spouse’s computers which confirm the hiding of assets and skullduggery can be case making or breaking evidence. However, as Hennenhoefer asks “How do you get that information legally? How do you get it into evidence?” Following his initial crash course, Hennenhoefer immersed himself in the timely and topical field of ESI. Attending seminar after seminar, including the National ESI Academy in Washington D.C. and Georgetown Law School’s ESI Academy, Hennenhoefer quickly earned a reputation as an authority on the subject of ESI. He soon began lecturing all over the United States in the areas of ESI, electronic discovery and the use of electronic evidence at trial. In fact, were he to be new to the legal field again, he wouldn’t think twice about selecting a specialization in ESI as his primary career path. “All of us were afraid of the act when it was introduced in 2009. But ignoring it won’t help.” It’s a matter of how we deal with this, because ESI is absolutely the future of law,” he says. As Hennenhoefer became more familiar with the laws pertaining to the handling of electronically stored information, he found the field equally as invigorating as he finds family law. “Once you learn this, it’s great,” he says, as a way of encouraging other attorneys to embrace the field. For his part, Hennenhoefer is all around, an extremely happy attorney. With a well-established firm, awards and recognitions galore as testimony to his expertise in family law; he’s thrilled to be at the forefront of the latest technological advances, where he gets the same satisfaction from doing what he’s done for more than four decades. “It is incredibly rewarding to sort through a person’s problems and solve them as quickly as possible.” n

Contact: James Hennenhoefer 316 S. Melrose Drive, Suite 200, Vista, CA 92081 760.941.2260

Attorney Journal | Volume 109, 2012 11

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

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COMMUNITY news nThis year’s San Diego Volunteer Lawyer Program annual “Justice For All Celebration” is slated for September 13 at the San Diego Museum of Man in Balboa Park. Doors open at 5:30 p.m. for networking, generous hors d’oeuvres and a no host bar. The program begins at 7 p.m. The event will feature awards for outstanding pro bono contributions as well as a presentation by a SDVLP client about the services they received. AMY FITZPATRICK SDVLP’s 2012 Pro Bono Service Award recipients are: Pro Bono Attorney of the Year: Gary Holt; Law Firm of the Year: Procopio, Cory, Hargreaves & Savitch LLP; Community Service Award: August Larsen, AJL Litigation Media Inc. “SDVLP is only as strong as the volunteers who give so selflessly of their time and expertise,” states Amy Fitzpatrick, executive director of SDVLP. “These honorees are tremendous examples of why our program has been able to provide such high quality legal representation for our county’s most vulnerable citizens; these honorees are some of our region’s most talented legal professionals.” nBest Best & Krieger LLP has the nation’s fourth-highest percentage of women equity partners, placing it among only five of the largest law firms across the country whose percentage is above 25 percent, according to the National Law Journal. Women at BB&K, which has about 200 attorneys working in nine offices across California and in Washington D.C., make up 26.7 percent of the firm’s equity partners, more than 12 ARLENE PRATER percentage points above the average. Women equity partners at BB&K oversee the firm’s two largest offices: Cynthia M. Germano is the managing partner for the Riverside office and Arlene Prater is the managing partner for the San Diego office.


nWingert Grebing Brubaker & Juskie LLP congratulates its partner, Christopher Todd, on his election to the State Bar Board of Trustees. The Board of Trustees meets approximately eight times a year to debate organizational, policy and professional issues affecting the legal profession. Trustees are elected to three-year terms. Wingert Grebing is confident Chris will be an excellent and effective representative for District 4 and is

14 Attorney Journal | Volume 109, 2012

proud of his leadership within our community. In addition to his service on the Board of Trustees, Chris maintains an active litigation practice focused on business, real estate, insurance/ bad faith, professional malpractice and injury disputes. Craig R. McClellan received the Daniel T. Broderick III Award on August 10, 2012 at the Red Boudreau Dinner, which brings together legal professionals from all areas of San Diego’s civil justice system. Each year, the award is presented to an accomplished San Diego trial attorney who “upholds the highest standards of civility, integrity, and professionalism.” nWilson Turner Kosmo LLP has hired three new associates, bringing the total number of attorneys at the firm to 26. Carolina Bravo-Karimi, James Leonard and Christina Tapia will practice in the firm’s employment law group. Bravo-Karimi comes to Wilson Turner Kosmo after being a law clerk to the Honorable Louisa S. Porter in the United States District Court for the Southern District of California. CAROLINA BRAVO-KARIMI She also teaches appellate advocacy at University of San Diego School of Law. She received her J.D. from the USD School of Law, a Masters in gender studies from the London School of Economics andPolitical Science and her B.A. in government from Harvard University. Leonard was formerly with Paul, Plevin, Sullivan & Connaughton. In addition to employment litigation, he has extensive experience with First Amendment issues, including JAMES LEONARD California’s anti-SLAPP statute. Leonard was a Rose Foundation Fellow for the First Amendment Project in 2008. He earned his J.D. from the University of San Francisco School of Law and his B.A. in European history from University of California, San Diego. Tapia was most recently in Gordon & Rees’s San Diego office employment practice group and previously was a deputy attorney general in the Correctional Writs and Appeals CHRISTINA TAPIA Section of the Attorney General’s Office. She has represented clients at trial and administration hearings. She earned her J.D. from the University of Southern California Gould School of Law and her B.A. in political science from the University of California, San Diego.

COMMUNITY news nMcClellan has obtained 95 verdicts and settlements in excess of one million dollars each, and is a threetime recipient of the “Outstanding Trial Lawyer Award” from the Consumer Attorneys of San Diego for cases in which million and multimillion dollar verdicts were obtained. He is the first and only San Diego attorney selected for admission to the Inner Circle of Advocates, a prestigious invitation-only group CRAIG R. McCLELLAN of top plaintiff’s attorneys, limited to 100 members nationwide. He is a Fellow of the American College of Trial Lawyers and a member of the American Board of Trial Advocates, where he served as President of the San Diego Chapter. He has appeared on public radio and television programs, including 60 Minutes, 20/20, and the McNeilLehrer Report. nJenny Goodman, an attorney at Sullivan Hill Lewin Rez & Engel, was elected President of the Rotary Club of San Diego Downtown Breakfast for 2012-2013, effective July 1, 2012. Goodman has been actively engaged in Rotary since 2004, serving on numerous committees and has been on the Board of the Rotary Club of San Diego Downtown Breakfast for the last two years. Active in the local community, JENNY GOODMAN Goodman formerly served as the chair of the San Diego County Bar Association’s Animal Law Section, was a former President of the Indiana University Alumni Club—San Diego Chapter and served two terms on the Board of Directors for San Diego Coastkeeper. Currently, she is on the Board of Directors for the Pacific Youth Soccer League and serves as its Director of Recreational Coaching. The Rotary Club of San Diego Downtown Breakfast supports a wide variety of community organizations and health and social causes in the San Diego metropolitan area and throughout the world. The chapter focuses primarily on fundraising and service opportunities for charities and issues related to children, seniors, military families and the environment.


nJim Peterson, an employment law attorney and partner of Higgs Fletcher & Mack LLP, was selected by the Daily Journal as one of the 2012 top

labor and employment attorneys in the state. Mr. Peterson was the only San Diego “management side” or employment defense attorney selected for this prestigious award. Only 75 labor and employment attorneys in the state receive this recognition. Mr. Peterson has been practicing employment law in San Diego for over 24 years and currently serves as the Chair of Higgs Fletcher & Mack’s Business Litigation Department and the Labor and Employment Practice Group. He advises and litigates disputes for a number of national and regional business clients on various aspects of the employment relationship including discrimination, retaliation, harassment, compensation (including wage and hour class actions) misappropriation of trade secrets and proprietary information, breach of contract, and wrongful termination. As part of his employment law consulting practice, Mr. Peterson counsels clients on hiring practices, wage and hour compliance, employment agreements, policy manuals, employee handbooks, termination decisions, lay-offs, and disability management. nThe Gomez Law Firm has purchased 10 Charger season tickets in the “family section” of Qualcomm Stadium, which will be made available via non-profit organizations to kids might not ordinarily have the opportunity to see the Chargers in action. The family section prohibits profanity and alcohol and is a safe place for children. The Gomez Firm team’s vision of philanthropy consists of giving JOHN H. GOMEZ back time, talent and treasure as a firm as well on an individual level. The Gomez Law Firm Founder and Lead Trial Attorney John Gomez has mastered the quickstep, in order to compete as a local luminary in Malashock’s So You Think You Can Dance fundraiser - raising funds to make their programs accessible to children. He has polished his stand-up comedy routine to give people access to legal guidance as part of the San Diego Volunteer Lawyer Program’s LAF-Off. John does voice-overs for the radio PSAs showcasing MADD (Mothers Against Drunk Driving) efforts to combat drunk driving. The Gomez Law Firm team also participates in Walk for the Cure, Race on behalf of Children with Autism, and Raise the Red Boot for the Ronald McDonald House.

Have a Press Release you would like to submit for our Community News? Email it to

Attorney Journal | Volume 109, 2012 15



Civility By Jennifer Hadley

The Damiani Law Group’s Criminal and Civil Defense Practice is the face of San Diego’s Unpopular and Vilified Defendants.




Photograph by Bronson Pate.


f Lisa Damiani looks familiar, chances are that it’s not because she’s on the cover of this magazine. In recent weeks, Damiani has been thrust into the national spotlight as the attorney representing the family of James Holmes. Holmes has been charged with the movie theater killings in Aurora, Colorado, which left 12 dead and 58 others wounded. In Damiani’s own words, the days and weeks following the crime have been nothing short of “chaotic” even for a 24 year veteran of criminal defense. Damiani is not, however, new to local and even statewide media attention. As a highly visible attorney in the exceedingly complex and lengthy cases stemming from conflict of interest accusations against Trustees of the San Diego City Employees’ Retirement System, Damiani obtained dismissals for her client, former Trustee Sharon Wilkinson, in People of the State of California v. Cathy Lexin, et al., which went to the California Supreme Court, People of the State of California v.

Lawrence Grissom et al., and San Diego City Employees Retirement System v. San Diego City Attorney Michael Aguirre, et al. Later, she represented Wilkinson as a Plaintiff in Torres et al. v. The City of San Diego, where she recouped civil defense costs from the city. Suffice to say, Damiani has gotten to know the local media well. She acknowledges that defense work is not necessarily for the faint of heart, and quotes Clarence Darrow: “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated and lonely person ... few love a spokesman and active defender for the despised and the damned.” Still, Damiani was astounded by the instant, overwhelming presence of the media and outpour of contacts from around the world after she came forward as the Holmes family’s attorney. “Yes, I expected media coverage,” she says, “but I was not fully prepared for the emotional reactions the case generated.” Attorney Journal | Volume 109, 2012 17

“It started out as a normal morning. I had consultations scheduled, it was a regular day,” she says. That all changed with a phone call. In the blink of an eye, news vans were set up outside of her gated community. The scene she greeted when arriving at the Holmes residence was unnerving. The home was swarming with media outlets as Damiani made her way into the home to consult with her clients. In spite of the commotion, relating as a mother of a young boy, she instinctively did what she’s been trained to do. “When I meet with my clients, I tell them ‘Now that I am here, you can transfer all of your problems to me. That weight on your shoulders, all of those troubles, are now mine to reconcile.’” FIRST STEPS TOWARD THE LEGAL FIELD For Damiani, the idea that our justice system works was instilled in her from the minute she entered the world. Born to first generation Americans, Damiani credits her father with first piquing her interest in law. “He brainwashed me into believing that, armed with knowledge of the law, my voice could make a difference in this world. His parents were born in Italy and he experienced a great deal of discrimination as a child gowing up in Oakfield, New York. He was proud to be American and had great respect for lawyers. He discussed many of them, including Clarence Darrow, F. Lee Bailey, Richard “Racehorse” Haynes, and Melvin Belli with me. We read To Kill a Mockingbird and other stories about lawyers and even watched The Paper Chase, a 1973 film about a first year Harvard law student, together. At dinner, he would hold court, when my siblings and I had an argument, and let us each present our case,” she recalls fondly. “His wish was for me to become a lawyer.” Suffice to say, her father was less than ecstatic when she told him of her plans to pursue a career in journalism following graduation from NYU. However, happenstance put Damiani in a legal conflict with her landlord in Manhattan, where she was fighting for her right to maintain a lovely rent-controlled apartment. The landlord forced her out for higher rent. Following that experience, she was determined to learn the law for herself. “I remember the day I told my father I was going to be a lawyer. He was the happiest I had ever seen him,” she says. After six years as a New Yorker, living in the city that never sleeps, Damiani was eager to find NYC’s antithesis. A road trip with girlfriends from Los Angeles through to San Diego and into Mexico was all it took for Damiani to be sold on law school in San Diego. There were not many female law students, let alone female attorneys at the time. California Western School of Law wanted to bring more women into the field, so it recruited her. “I wanted to focus on criminal cases because I found them to be fastpaced, challenging and rewarding,” she says. Upon admittance to the California Bar in 1988, Damiani launched her own firm, and began the work of building a criminal defense practice in what was then very much a male-dominated field. “The styles men used in the courtroom, like Atticus Finch, did not fit me. Rather than act like them, I wanted to be myself. I wore, and continue to wear, skirts in court as testament to the power of femininity. I also learned from jury consultants that jurors like to see women in court today,” she says proudly. After five years as a criminal defense attorney, Damiani was hand selected and recruited by Robert S. Brewer to join the white collar practice group at McKenna & Cuneo LLP (now McKenna, Long & Aldridge 18 Attorney Journal | Volume 109, 2012

LLP). Damiani was enlisted on the firm’s employment defense matters and immediately took to it. “Although it seems to be very different from my criminal practice, the emotions between an employee and employer can be similarly explosive. We spend more time with our fellow employees than we do with our own spouse and children. The relationships we build while working can be very complex. They help to form our identities. For most people, maintaining our livelihood is as important as maintaining our liberty. Both fields fascinate me.” DEVELOPING A THICK SKIN Early in her career, she had several profound experiences that helped shape her into the attorney she is today. First, she got to know Juanita Brooks and Cynthia Aaron, “two phenomenal, brilliant trial lawyers who are respected and admired by the legal community.” They were her mentors. The second experience was equally valuable; it was learning to develop a thick skin, even when representing those who the community at large views as despicable. In 1994, Damiani participated in a five month federal trial in the case of United States v. Jeffrey Rutgard, a marked experience comparable to climbing Mt. Everest. “Unexpectedly, I was asked to assist the McKenna team in the defense’s case in chief, after Racehorse Haynes, lead counsel, was relieved. The judge didn’t appear to like the defendant, and as part of his defense team, didn’t appear to like counsel either. I felt hatred coming from the bench, the jury box and the prosecutors,” she explains. “The allegations were serious against our client. This was the type of case that generated a lot of hostility in the community. On top of that, many bizarre things happened. For instance, one of the client’s family members had a heart attack in the courtroom while we were in session. During direct examination of a defense witness, a patient who had good things to say about our client, the judge actually lunged at me over the bench, red-faced and spitting, ordering me to sidebar,” she recalls. “When you represent someone who is denigrated by the prosecution and media, people look at you the same way they look at your client.” Recalling the experience, Damiani likened it to “boot camp.” The case was hard-fought and forced her to see that her role as a defense attorney was not always going to make her the most popular person. However, it also reinforced her belief in our judicial system as a whole. “Our legal system is built for the wrongfully accused. Everyone is presumed innocent. Unless the one pointing the finger can prove guilt beyond a reasonable doubt, we must find innocence. I’m not the judge and I’m not the jury. I am much more comfortable in defending than in finger-pointing,” she says. COMING INTO HER OWN-CREATIVELY After seven years at McKenna & Cuneo LLP, which Damiani recalls as a “wonderful experience, where I met talented defense lawyers and had abundant resources,” she decided

she wanted the flexibility afforded by running her own firm again. She also wanted to take on plaintiff cases. To that end, she launched the Damiani Law Group APC in 2000, and created a practice that would bring together her various areas of specialty and passion. “Typically, I represent those accused of crimes and other unlawful acts, including fraud, racketeering, homicide, assault, battery, rape, hit and run, laundering, and drug offenses in state and federal courts. A majority of my matters are referred to me by other civil attorneys who are savvy enough to see criminal

implications or criminal defense lawyers who need advice on the civil side. Getting me in the case early helped to keep their client’s exposure limited. Past clients also refer me cases because they know how I work. Many of them have retained me in parallel criminal and civil proceedings, involving a variety of claims, like fraud, theft of trade secret and unfair business practices. I love the challenge. Most of my present civil cases involve defending and consulting with employers on labor and employment matters,” she says. In order to sufficiently provide the representation that her clients deserve, Damiani has cultivated a firm which has been known to employ unconventional and creative means of discovery. From taking out ads in local newspapers encouraging readers to contact her if they’ve had experience with particular expert witnesses, to printing up fliers and distributing them in neighborhoods where a home builder’s ethics were questioned, Damiani is not afraid to push the envelope. She recalled opposing counsel filing for a protective order and sanctions to stop her flyer distribution, which he claimed defamed his client. The judge didn’t see it that way though, allowing Damiani to carry on and even complementing her on her creativity. “We think outside of the box in strategizing the case. Every move we make is designed to show our client in a different light and achieve that strategy. We don’t care if it upsets our opposition.” Attorney Journal | Volume 109, 2012 1919

Contact: Damiani Law Group APC 701 B Street, Suite 1110 San Diego, CA 92101 (619) 239-0170

20 Attorney Journal | Volume 109, 2012


COMFORTABILITY IN HER OWN SKIN For a woman who has built a career representing clients in the face of palpable adversity, Damiani is not only comfortable with her position, but counterintuitive to what one may think about the effect such a demanding profession may have on one’s spirit; Damiani is an exceedingly nice and friendly woman. More importantly, she’s proud of the work she does. “Somebody has to do this job,” she says. “You’ve got to be able to be in a position where you may not look so good…there is always someone who views you as despicable because of their experiences in life or they don’t fully understand the case and our system. I’m ok with that.” Certainly her clients are grateful that Damiani is willing to take the heat, especially her employer clients, who have asked her to deliver the “pink slips” in lay-offs or stand up to accusations of discrimination. But the entire legal community has also recognized the hard work, success and creative tactics that Damiani utilizes to the benefit of her clients. Respect from peers has resulted in an AV Peer rating through Martindale-Hubbell every year since 2008. Since 2010 she’s also earned the AV Preeminent rating, an award bestowed on less than 5% of female lawyers. For the talented attorney and rising public figure, Damiani is looking forward to a bright future, wherein she plans to continue to “grow her business to fit the firm,” but has no plans to expand her fields of practice. She’s happy with her career, which is a fairly even mix of business, employment and criminal defense. Her professional life extends well beyond the office or the courtroom though; as an active member of local legal organizations such as the William B. Enright American Inn of Court. Damiani’s leisure time is often spent in the company of colleagues and peers, including judges and fellow members of the Bar. She’s also very happy to be a mother to her 9 year old son Nikolay whom she adopted from Russia in 2003. Something tells me that for all of these reasons, her father, who first shared with her his love of the law so many years ago, is very proud that Damiani is indeed using her knowledge of the law as a voice that can and does make a difference in the world. n


• 1983 B.A. degree from New York University • 1986, while in law school, formed Paper Chase Legal Clerks, assisting sole practitioners by providing them with law clerks for research, drafting and other legal assistance. • 1988 J.D. degree from California Western School of Law (CWSL)


• Staff Writer with the CWSL Law Review • Comment published in the CWSL International Law Journal • 1988 Won the Richard D. Westbrook Trial Advocacy Award for trial skills • 1988-present, Member of the California Bar • AV peer rating through Martindale-Hubbell every year since 1998 • AV Preeminent Rating from 2010 through 2012 • Selected to the Bar Register of Preeminent Women Lawyers in its inaugural 2011 edition and in 2012. Less than 5% of women lawyers have been recognized with an AV Preeminent Rating • Named San Diego Super Lawyer 2010 – 2012 • Lectured on various topics for the California State Bar, the National Institute of Trial Advocacy (NITA), the National Association of Professional Employer Organizations (NAPEO), Continuing Education of the Bar (CEB) and Federal Defender’s Inc. of San Diego


• Member, American Inn of Court, William B. Enright Chapter (past board member) • Member, Association of Trial Lawyers of America (ATLA), now American Association for Justice (past Chair of the Criminal Law Section) • Member, National Employment Lawyers Association (NELA) • Member, National Association of Criminal Defense Lawyers (NACDL) (former Legislative Coordinator) • Member, California Attorneys for Criminal Justice (CACJ) • Facilitated ABA sponsored program “Core Skills of Creative Problem Solving”



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Attorney Journal | Volume 109, 2012 21


ere’s a brain teaser for you. How is it possible to add … a lot … to an already very full plate and wind up feeling less burdened and more energized as a result? Here’s a hint. It depends on what you’re adding.

Where Have You Gone Flat?

We hear and read a lot about living a joyful life and seeking to achieve balance between work life and the rest of life. But what does achieving balance actually entail? What exactly are we balancing? Work life and personal life? Sure, but let’s drill down a little. We’re multi-dimensional beings who require care and feeding on several different fronts … the physical, spiritual, emotional, financial, family/ friends, and career fronts to name just some of the most basic ones. And when certain aspects of who we are fail to find expression in our everyday activities, we experience that lack as “something missing.” We don’t feel as fulfilled, as “together,” or as complete as we might. Add in those activities and your experience of life changes. Shine your light in new or neglected areas and you feel re-energized. And that brings us to the answer to our little riddle. You can add quite a bit to your plate, as long as it’s something that expands and completes who you are, rather than piling on more of the same. In my case, as a business owner, more of the same would be work, and I’m guessing that would be the case for a lot of you. Ugh. Just thinking about it makes me tired. Don’t get me wrong. I love the work I do, but there are plenty of other things I want to do to and it seems I never get around to doing them. And the older I get, the more I’m beginning to resent the amount of time I spend working. Rather than continue to feel resentful of work, always stressed for time, and woeful about a lack of focus on other aspects of my life, I decided that 2012 would be my year to simplify and renew. This simplification and renewal is both physical and spiritual. On the physical side, my husband and I rented two dumpsters and have begun to clean out 28 years of accumulated junk in our garage, storage sheds, and my office. One more dumpster load and we’ll be done!

by Barbara Mencer

The Wheel of Life

Let’s look at the six major aspects of your life. • Ask your self how satisfied you are with each aspect of the wheel… from 0-100% 100% • Place a dot at the point r e corresponding to your chosen e r Ca percentage on each of the two spokes that support the part of the wheel you’re rating. • Connect these two dots to form an arc from one spoke to the other. 0% • Repeat for each aspect until the six arcs combine to form a single shape.

Ph y








Fa m

22 Attorney Journal | Volume 106, 2012


To achieve more balance in your life, which aspects need more of your time and attention?

a Fin

How smoothly and effortlessly would it roll?


How well rounded and balanced is it?








Barbara Mencer is a professional coach and co-founder of Business BreakThrough Institute, a coaching, consulting and training company dedicated to helping business owners and professional service providers grow their businesses. A past marketing director in midsized law firms, Barbara focuses her work on helping lawyers build their practices. Barbara can be reached at

On the spiritual side, we joined a church we love and I’ve become very active, joining the worship team, volunteering in various church activities, and participating in a weekly Bible study group. I’ve also enrolled in nutrition school. I’m a competitive athlete. I’m absolutely passionate about health and nutrition. Over the last year, the appeal of gaining more formal education in this area has grown, and so rather than waiting until the “perfect” time, I jumped in and enrolled in a year-long program at the Institute for Integrative Nutrition. And I’m feeling more alive, joyful, and balanced since I added these things into my life. If someone had told me at the beginning of my “year of simplification and renewal” that I would actually ADD things to my already crazy schedule and feel more joyful, happier, more purposeful, and balanced as a result, I would’ve said they were crazy, but it’s true. And the bonus is that I now have more energy, enjoyment, and space for my business. I’m working fewer hours, but I’m doing MORE! Why? Because adding to my load actually helped lighten my being. So, how might this work in your life? Are you familiar with “The Wheel of Life?” It’s a quick exercise that helps you evaluate where your life might be out of balance. The idea is simple. A wheel that’s flat in one spot doesn’t roll very well. It’s out of balance. Why not take a few moments to assess where you might benefit from concentrating more of your time and attention as a way to round out your experience of life. Do more and feel less stressed? I wouldn’t have believed it was possible if I hadn’t experienced it, but maybe putting less on your plate isn’t necessarily always the answer to achieving a more joyful, less stressful life. Maybe paying attention to and adjusting what you’re doing is just as important. n

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215.439.8188 Attorney Journal | Volume 109, 2012 23

Photograph by Bronson Pate.

Attorney Journal’s September Snapshot JONATHAN D. MONTAG

Immigration INNOVATION

by Karen Gorden

“A lot of law involves fighting over money—whether it’s [a party generally struggling with one of four major issues: immigrating seeking] compensation, a breach of contract, or even in family family members; those facing deportation for criminal or matters. Immigration law has little to do with fighting over money. immigration violations; those seeking to become citizens or It’s more about keeping families united or to prove that they are citizens; and those helping people get into and stay in the United seeking asylum. While he may not have a States so that they can live the American typical client, he does have a typical feeling Dream,” says Jonathan D. Montag. about his work. FEATURED For Montag, who has concentrated “Immigration law is complex. I get to PROFESTSHIOENMAOLNPTROFILE his practice on immigration law since use my knowledge to help people. It is H OF graduating from the University of San very rewarding and fulfilling work. When 2012 Diego School of Law in 1994, this type of someone is in big trouble, or really needs to work was something he more or less fell stay here, I get to help,” he says. into, after employment as an associate in immigration practice. In turn, his efforts in the field have been widely well-received. Montag certainly had an interest in global relations, choosing A regular speaker and writer for the American Immigration to double major at the University of Pennsylvania in Near Lawyers Association, he’s also had numerous published Eastern Studies and International Relations. He also spent a decisions including Beltran-Tirado v. INS, (2000) and Larayear studying abroad in Cairo, Egypt, and two years studying Cazares v. Gonzales, (2005). Economics in a graduate program at Uppsala University in Montag is a Certified Specialist in Immigration and Uppsala, Sweden. Coupled with his travels during his five years Nationality Law designated by the State Bar of California in the military; the decision to pursue immigration law seemed Board of Legal Specialization. Montag is a Super Lawyer as a natural fit. “A lot of people look to become a lawyer to designated by Super Lawyer Magazine, was selected as one of establish a particular lifestyle. Others do it for the competition, San Diego’s Top Attorneys in Immigration Law from San Diego the combat. I think of it as an intellectual pursuit,” he says. Metro Magazine and San Diego Magazine, and as a Best Lawyer While Montag doesn’t have a ‘typical’ client, most clients are by U.S. News and Best Lawyer. n JOURNAL

Attorney Journal | Volume 109, 2012 25

My Night with a Few

MULTIMILLION DOLLAR Well — it wasn’t exactly a night, but I know I have your attention now!

In the last few months, I have had conversations with four multimillion-dollar rainmakers from firms of various sizes. They ranged in age from 50-65. I mention their ages because several times, they reminded me that nothing happened to them overnight, and indeed “slow and steady” most certainly did win the race for them. Their books of business range from $2 million to over $25 million. I thought I would share with you some of their best tips and some observations of my own.

By Stacy Clark Stacy West Clark has been helping Pennsylvania lawyers and law firms expand their practices for 25 years. She is a former attorney with Morgan, Lewis & Bockius and was its first marketing director. She is president of Stacy Clark Marketing ( Reprint permission from Stacy West Clark. The Legal Intelligencer©.

Tip: View your role as a lawyer who needs to bring in business to the firm and your partners — not to yourself. More than anything else, lawyers who look to cross-sell a client to other sections and lawyers in their firm quite simply make more money. It’s easy to understand why. There is only so much you can bill as an individual. So ... if you focus on having the client served by numerous lawyers in your firm, your revenue numbers will grow. And importantly, the more practice groups handling matters for your client, the less likely it is that the client will leave. Remember, to successfully sell your firm and your partners, you need to figure out what they do, whether they are any good at it and whether the client needs that expertise. Observation: Early on in their careers, these million-dollar babies all decided to pursue a hobby, which turned into a passion. One took up golf, another, tennis, and still another took up supporting the arts. These lawyers took up these interests because they really enjoyed them — not at all initially for business development purposes. But because they chose endeavors they really loved, each was able to use the activity very successfully to develop business.

For the last decade, the golfer has scheduled golf dates months in advance with clients at top courses at which clients are excited to play. The tennis player has had a regular standing game with three other professionals and also plays challenge matches to meet more people. The arts supporter started off helping organizations (orchestra, ballet, museums) by volunteering for the most dreaded job — fundraising — and through her tremendous efforts is now on the boards of several major arts institutions. Her position on these boards has brought her in touch with so many business leaders and owners — whom she befriended — and, incidentally, now calls clients. Observation: None of the rainmakers I spoke with is a snob. They are open and friendly to everyone, despite their education and income level. They are upbeat and create energy in every room they walk into. You can do this, too. Tip: Follow every client, no matter where she or he goes. These rainmakers had clients over the years who lost their jobs or whose jobs were changed because of mergers, bankruptcies and more. Each made a point to help any client who lost his or her job — sending their resumes around, speaking to contacts and arranging meetings for the client. When the client landed on his or her feet, a pattern developed: The client would try very hard to steer legal work to the lawyer who had been there for him or her over the years. Observation: None of the rainmakers smokes or has had more than one alcoholic drink with a client — ever. They are all very physically fit as well. Observation and Tip: Over the years, all four report being told “no” by prospective clients. And none of them cared. They did not suffer feelings of rejection. In fact, it made them want to get the target even more. So they kept trying. That’s right: The target said “no,” but they kept in communication in ways that were useful to the target. One reported to me that it took 10 years to bring a Fortune 100 company in to the firm — but he did — and he did it by learning everything he could about its operations and how it made money, and by constantly bringing to its attention legal news that could affect its business. Persistence paid off. As one of them said to me, don’t be afraid to fail. If you fail to get a piece of business or a client, you are no worse off than you were before.

Tip: Keep your business antennae up — no matter where you are. These rainmakers assess everyone they meet and every situation they are in to spot possible new business. In short, they are rarely “off” because they have changed their DNA to think about people in a new way. They were not born like this — they made a decision to be like this. Tip: Dress the part. Throughout their careers, to a letter, all four of them — whether on a casual day or otherwise — deliberately made sure they looked “well-dressed.” They bought their clothes at nice, but not ridiculously expensive, stores, and they made sure they always looked highly professional. Ready for a serendipitous encounter with a client — they always looked the part of being smart. Don’t ever forget that appearance does matter — a lot. Tip: Go where clients are in your personal and professional life. That’s right; if you want corporate clients, hang out where professionals “live” — their trade associations, their alumni reunions, their charitable endeavors, their pastimes. If you want consumer clients, be active in your community; talk up what you do with the local barber, your pharmacist and others who can be walking ambassadors for your practice. Tip: Be uber-responsive to clients You love the targets you want — 24/7. They will feel the love and never ever feel like they are not your top priority. One of the rainmakers I spoke to not only takes calls at midnight — but calls clients before work each morning to wish them happy birthday — and he is a nationally renowned management employment lawyer. Tip: Make sure your invoices are as perfect as your briefs. They will be pored over by your clients, so make them detailed and indicate where you have provided value and done anything for free or at a discount. Look at the bill and ask, “Did the client get a good value?” If not, adjust it. Always assume that several people at the client organization will be reviewing the invoice. Tip: Don’t confuse title with authority. Although it is nice to know the general counsel of a company, most legal engagements are done at lower reporting levels. Get to know those people and deliver outstanding service to them. I want to thank all my “undercover” rainmakers for their candor. Now it is up to you. I am rooting for you. Get up, get started, and get going. n


Survey Finds Slow Adoption of Alternative Fee Arrangements for Legal Services

his just in from ALM: In spite of all the buzz, an increase in the use of AFAs is proving to be much more gradual than forecast in aftermath of 2008-2010 recession. [See the chart below for the reasons behind the slow adoption of AFAs.] According to results from a new survey conducted by ALM Legal Intelligence, alternative fee arrangements (AFAs) for legal services — billing methods based on metrics other than an hourly rate — are becoming more pervasive, but still failing to gain the traction that was predicted by industry experts in recent years. The survey report, “Speaking Different Languages: Alternative Fee Arrangements for Law Firms and Legal Departments,” indicates that only 6 percent of law firm respondents used an AFA in 2011 for more than half of their legal work, with the majority (67 percent) using AFAs for less than one quarter of their billing. Similarly, only 12 percent of legal department respondents said they used AFAs for more than half of the legal work they assigned to outside counsel in 2011. Perhaps even more telling about the lackluster adoption of AFAs is that 6 percent of legal departments and 17 percent of law firms did not even know what percentage of their legal work was billed using a method other than the billable hour or discounting. These results are among the thought-provoking findings of the survey, which was conducted last month by ALM Legal Intelligence and sponsored by LexisNexis® CounselLink®. To download a free copy of the report, please go to “To get an all-around and fresh take on the adoption of AFAs, we connected with more than 200 law departments and more than 200 large law firms in the U.S.,” said Kevin Iredell, vice president of research and continuing education products at ALM. “The results of this survey suggest that the billable hour remains entrenched, despite widespread What do you believe to be the THREE biggest obstacles to the growth of AFAs?

Law Firms Law firms are more comfortable with the billable hour.


Firms have insufficient experience defining or managing work on an AFA basis.


Absent better metrics and data, it is difficult to determine AFAs.


Corporate law departments have insufficient experience defining or managing work on an AFA basis.


There is not sufficient billing history or pricing methodology to know how to bill AFAs.


Corporate law departments are more comfortable with the billable hour. Alternative arrangements are too difficult to negotiate or hold to.

40% 13%

Compensation models at the firm are still based on hours billed. AFAs are too risky for the firm’s overall revenue.

By Larry Bodine

24% 10%

Partners object or refuse to cooperate.


Other (please specify):


Law Departments

Larry Bodine is Editor in Chief of,, the top online destination for legal news that consumers can use. He is a lawyer, blogger and lifelong journalist. See larrybodine. Follow Larry on Twitter: @larrybodine.

Law firms are more comfortable with the billable hour.


Absent better metrics and data, it is difficult to determine AFAs.


Law firms resist alternative fee arrangements.


Corporate law departments have insufficient experience defining or managing work on an AFA basis.


There is not sufficient billing history or pricing methodology to know how to bill AFAs.


Corporate law departments are more comfortable with the billable hour. Legal department personnel lack the time to structure AFAs.

28 Attorney Journal | Volume 109, 2012


Firms have insufficient experience defining or managing work on an AFA basis.

15% 13%

Alternative arrangements are too difficult to negotiate or hold to.


There is insufficient technology to analyze billing history or pricing methodology.


Other (please specify):


reports that clients are dissatisfied with the practice. However, we also found that the vast majority of both corporate legal executives and law firm partners expect the adoption of AFAs to continue to rise in the next five years.” According to Iredell, other highlights of the survey findings included the following: • Law firms’ and companies’ opinions differ as to who they think is responsible for the lag in AFA adoption. According to law firms, the top obstacle to increased use of AFA billing focuses on either side feeling more comfortable with hourly billing in general. Legal departments agree, but they go on to find lack of experience in defining and managing work and billing matters on a basis other than hourly as a big stumbling block for both parties. • Despite the slow adoption rate, the use of AFAs is clearly growing. About 62 percent of law firms saw an increase in the use of AFAs in 2011, with only 2 percent citing a decrease and the remainder seeing no change. Half of legal departments saw an increase, with 49 percent saying that the number remained the same and only 1 percent experiencing a decrease. • The top three choices for types of alternative fee arrangements used by both firms and departments were: flat fee (89 percent of departments, 93 percent of firms); blended rate (47 percent of departments, 89 percent of firms); and capped fee (57 percent of departments, 83 percent of firms) • About 70 percent of legal department responses predicted an increase of AFA use from 2012 to 2016, with 26 percent thinking the amount will stay the same and just 4 percent expecting a decrease. Almost three-quarters of law firms (74 percent) expect an increase in AFA work over the same time period, while 14 percent think that things will be the same and, again, just 2 percent expect a decrease. “Both corporate counsel and law firms continue to struggle to find ways to make alternative fee arrangements work for them,” said Kris Satkunas, director of Analytic Consulting for LexisNexis CounselLink. “LexisNexis has developed advanced solutions to help both law firms and corporate legal departments identify the types of matters that best lend themselves to AFAs, to model different fee arrangements and pricing scenarios to achieve better cost predictability, and to track performance throughout the lifecycle of the engagement.” n

Attorney Journal | Volume 109, 2012 29



Post Falls, ID PERMIT NO. 32