ajointpublicationof losangeleslawyer · pdf fileajointpublicationoflosangeleslawyerandthe ......

A JOINT PUBLICATION OF LOS ANGELES LAWYER AND THELOS ANGELES COUNTY BAR ASSOCIATION BARRISTERS SECTION

INSURING LAW FIRMS ONE POLICY AT A TIME

WWW.AHERNINSURANCE.COM T 800.282.9786 LICENSE #0C04825

ENDORSED INSURANCE BROKERENDORSED INSURANCE BROKER

http://www.aherninsurance.com

CONTENTS

From the Editors 4

SSTTAARRTTIINNGG OOUUTT

Integrity Is Everything 5By Judge Charles W. McCoy Jr.

Forget (Some of) What You Learned in Law School 6By Susan Estrich

Much to Learn, You Still Have 7By Benjamin G. Shatz

Networking Tips for the New Associate 9By Art Jalandoni and Jennifer A. Grady

The Challenges of Time Management for Associates 10By Felix Woo

Achieving Financial Balance 11By Ben Fagerlind

Questions and Answers about Professional Liability Insurance 14By W. Brian Ahern

SSHHAAPPIINNGG YYOOUURR CCAARREEEERR

What Joining an Association Can Do for You 15By David Reinert

How to Work with Senior Partners 16By Michael A. Geibelson

In New Attorneys We Trust: How to Make In-House Counsel Happy 17 By Mhare O. Mouradian

Weighing the Benefits of Being an In-House Counsel 18By David Schnider

Career Transitions 20By Adam J. Post

Dispelling the Common Myths about Careers in Public Interest Law 21By Hernán Vera

The Essential Role of New Lawyers in Pro Bono Work 22By Blaine H. Evanson and Vania M. Gauthreaux

Assessing the Risks and Rewards of a Solo Career 24By R. J. Molligan

Effectively Handling High-Profile and Celebrity Cases 25By Thomas A. Mesereau Jr.

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August and a special issue in the fall, by the Los Angeles County Bar Association,1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription priceof $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeksin advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055.

VISIT US ON THE INTERNET AT www.lacba.org/lalawyerE-MAIL CAN BE SENT TO [email protected]

EDITORIAL BOARD

ChairKENNETH W. SWENSON

Articles CoordinatorDENNIS PEREZ

JERROLD ABELES (PAST CHAIR)ETHEL W. BENNETTERIC BROWNCAROLINE BUSSINPATRICIA H. COMBSCHAD C. COOMBS (PAST CHAIR)MICHELLE WILLIAMS COURTELIZABETH L. CROOKEBEN M. DAVIDSONANGELA J. DAVIS (PAST CHAIR)GORDON ENGDONNA FORDSTUART R. FRAENKELMICHAEL A. GEIBELSON (PAST CHAIR)GABRIEL G. GREENSHARON GLANCZTED HANDELJEFFREY A. HARTWICKSTEVEN HECHT (PAST CHAIR)JOSHUA S. HODASLAURENCE L. HUMMERAMY K. JENSENGREGORY JONESMARY E. KELLYKENNETH K. LEEKATHERINE KINSEYKAREN LUONGPAUL MARKSAMY MESSIGIANMICHELLE MICHAELSCOMM. ELIZABETH MUNISOGLURICHARD H. NAKAMURA JR. (PAST CHAIR)CARMELA PAGAYADAM J. POSTGARY RASKIN (PAST CHAIR)JACQUELINE M. REAL-SALAS (PAST CHAIR)DAVID A. SCHNIDER (PAST CHAIR)STEVEN SCHWARTZLOUIS SHAPIROMAYA SHULMANALYSON SPRAFKINHEATHER STERNDAMON THAYERTHOMAS H. VIDALKOREN WONG-ERVINSTAFFPublisher and EditorSAMUEL LIPSMAN

Senior EditorLAUREN MILICOV

Senior EditorERIC HOWARD

Senior EditorKAREN KING

Art DirectorLES SECHLER

Director of Design and ProductionPATRICE HUGHES

Advertising DirectorLINDA LONERO BEKAS

Sales and Marketing CoordinatorAARON J. ESTRADA

Administrative CoordinatorMATTY JALLOW BABY

Copyright © 2011 by the Los Angeles County Bar Association. All rights reserved.Reproduction in whole or in part without permission is prohibited. Printed by R. R.Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA).

The opinions and positions stated in signed material are those of the authorsand not by the fact of publication necessarily those of the Association or its members.All manuscripts are carefully considered by the Editorial Board. Letters to the editorare subject to editing.

1 SurvivalGuide2011_master.qxp 8/24/11 3:05 PM Page 1

2 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011

PPRRAACCTTIICCEE BBAASSIICCSS

Beyond Liability, Damages, and Collectibility: 27The Importance of Vetting a Plaintiff ’s CaseBy Stuart R. Fraenkel

To Share Fee-Splitting Arrangements Is Human, to Disclose Is Divine 29By Jeffrey D. Wolf

Mitigating the Challenges of Managing Your Practice 30By Christopher T. Anderson

Triggering General Liability Insurance Coverage for a Third-Party Claim 31By Michael L. Cohen and Heather M. McKeon

Finding the Best Expert Online: A Direct Examination of 34Directories and Referral ServicesBy Ashley Miller

How to Succeed with Expert Witnesses 36By David Nolte

Dos and Don’ts of Paper Discovery 39By Justice Richard C. Neal (ret.) and Barbara Reeves Neal

California E-Discovery Basics: Tips for the E-Competent Litigator 41By Diane E. Barry and Judge James L. Smith (ret.)

Cloud-Based Electronic Discovery Is in Your Future 43By Robert J. Ambrogi

Advancing the Long-Term Strategy of Changing the Law 45By Blair Schlecter

Applying the “Usual Stipulations” at a Deposition 46By Heather E. Stern

AATT TTHHEE CCOOUURRTTHHOOUUSSEE

How to Survive—and Even Succeed—in the Los Angeles Superior Court 48By Judge Lee Smalley Edmon

Litigation Tips for Tight Times 50By Judge Michael L. Stern

Expedited Jury Trials Offer Quick Trial Experience 52By Steven P. Goldberg

The Rewards and Pitfalls of Class Actions 53By Brian S. Kabateck and Dominique Nasr

Making the Last Word Count: Guidelines for Writing an Effective Reply Brief 55By Damon Thayer

Protecting the Record for Appeal 57 By Robin Meadow

TTHHEE WWOORRKK OOFF AA LLIIFFEETTIIMMEE

The Practice of Law: Your Job, Your Career, or Your Calling? 59By Timothy A. Tosta

CONTENTS

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2548Telephone 213.627.2727 / www.lacba.org

ASSOCIATION OFFICERSPresidentERIC A. WEBBERPresident-ElectRICHARD J. BURDGE JR.Senior Vice PresidentPATRICIA EGAN DAEHNKEVice PresidentLINDA L. CURTISTreasurerMARGARET P. STEVENSAssistant Vice PresidentPAUL R. KIESELAssistant Vice PresidentHELEN B. KIMAssistant Vice PresidentELLEN A. PANSKYImmediate Past PresidentALAN K. STEINBRECHERExecutive DirectorSALLY SUCHILAssociate Executive Director/Chief Financial OfficerBRUCE BERRAAssociate Executive Director/General CounselW. CLARK BROWN

BOARD OF TRUSTEESSEYMOUR I. AMSTERP. PATRICK ASHOURIROBERTA B. BENNETTORI S. BLUMENFELDMARRIAN S. CHANGKENNETH CHIUBRIAN K. CONDONDUNCAN W. CRABTREE-IRELANDBRIAN S. CURREYJEFFERY J. DAARANDREW S. DHADWALANTHONY PAUL DIAZLOUIS R. DIENESDAVID C. EISMANCHRISTINE C. GOODMANJACQUELINE J. HARDINGANGELA S. HASKINSHARUMI HATALAWRENCE C. HINKLE IIBRIAN D. HUBENLILLIAN VEGA JACOBSEVAN A. JENNESSRUTH D. KAHNSAJAN KASHYAPMICHAEL K. LINDSEYSARAH E. LUPPENHON. RICHARD C. NEAL (RET.)ANNALUISA PADILLADEBORAH C. SAXE LINDA E. SPIEGELBRUCE IRA SULTAN

AFFILIATED BAR ASSOCIATIONSBEVERLY HILLS BAR ASSOCIATIONBLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC.CENTURY CITY BAR ASSOCIATIONCULVER-MARINA BAR ASSOCIATIONEASTERN BAR ASSOCIATION OF LOS ANGELES COUNTYGLENDALE BAR ASSOCIATIONIRANIAN AMERICAN LAWYERS ASSOCIATIONITALIAN AMERICAN LAWYERS ASSOCIATIONJAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELESJOHN M. LANGSTON BAR ASSOCIATIONKOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIALESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELESMEXICAN AMERICAN BAR ASSOCIATIONPASADENA BAR ASSOCIATIONSAN FERNANDO VALLEY BAR ASSOCIATIONSAN GABRIEL VALLEY BAR ASSOCIATIONSANTA CLARITA BAR ASSOCIATIONSANTA MONICA BAR ASSOCIATIONSOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIASOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC.SOUTHEAST DISTRICT BAR ASSOCIATIONSOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATIONWHITTIER BAR ASSOCIATIONWOMEN LAWYERS ASSOCIATION OF LOS ANGELES


A BETTER WAY. Rather than spend millions to buy, manage and support complicated e-discovery software, plug into the Catalyst grid. You get immediate access to an easy-to-use, automated platform, backed by a support team with decades of experience. Processing, ECA, search, analysis, review and production. Pay only for what you need, when you need it.

THE POWER OF THE GRID. Catalyst’s grid-based, e-discovery platform gives corporations and counsel the power to handle the biggest and most complex litigation and regulatory matters—in over 70 languages. Our secure cloud technology provides all the control of a local appliance, but with more power, lower costs…and none of the headaches.

Looking for a Better Way to Manage E-Discovery?

Plug Into the Power of the Grid

877-557-4273 | [email protected]


http://www.catalystsecure.com/

The Survival Guide for New Attorneys inCalifornia is a compilation of articles thatwere selected to assist new lawyers withtheir pursuit of truth, justice, and the

American way. Okay, the articles and theknowledge they bestow will not make a newlawyer “faster than a speeding bullet, morepowerful than a locomotive, and able to leaptall buildings in a single bound.” Nevertheless,they do provide new law-yers with critical insight,guidance, and direction.The editors of the SurvivalGuide designed the publica-tion to impart valuable in-formation to new lawyers—the type of knowledge thatnew lawyers did not learnas students in law school.

All of us lawyers—newand not so new—recallthat in law school we weretaught, for the most part,black letter law, how toIRAC, and the philosophyof the law. After gradua-tion we studied voraciouslyfor the California bar examand then took that nasty little three-day test.Our reward for our herculean efforts wasmonths of stress and agony as we awaited ourresults.

During that wait for bar results, whentime seems to stand still, most of us enjoyed—as we had the two summers before—the lux-ury of working as a law clerk for a firm or solopractitioner. In the process we used our finelytuned new skill set to write legal briefs andotherwise assist senior counsel with the grunt

work that they did not want to do them-selves. Finally the big day came when welearned we passed the bar exam. We weresworn in amid congratulations and an enjoy-able party or two.

Somehow, for some inexplicable reason,the world—including those who taught younaught during your clerkships—thinks thatsince you passed the bar exam and were

sworn in, you now possess the knowledge ofProsser and Witkin and are able to expertlynavigate the tumultuous waters of the courtsystem, sagely avoid the land mines of litiga-tion, and steer unerringly around the twistsand turns of transactional dealmaking.Fortunately, enough of us have not forgottenour shared rites of passage, including thepainful and seemingly endless searches weengaged in to gain the knowledge and find theguidance to help us traverse through yet

another legal challenge.The transformation from student to pro-

fessional can be difficult. The good news is thatexcellent resources are available, includingthe Survival Guide, for new lawyers seeking tominimize the obstacles on their road tobecoming proficient attorneys. This third edi-tion of the Survival Guide—along with itspredecessor editions in 2005 and 2006, which

are also available at the LosAngeles County Bar Assoc-iation Web site—is a collec-tion of nuts and bolts prac-tice tips for litigators andtransactional attorneys alike.These articles will assist newlawyers with the develop-ment and direction of theirlegal careers. We know thestakes for new lawyers arehigh and trust that this guidewill help new lawyers gain acompetitive advantage overthose who fail to see the lightand fall prey to the kryp-tonite of ignorance.

The members of theSurvival Guide’s Editorial

Committee are Ethel Bennett, Ori Blumenfeld,Robert Glassman, Ted Handel, MichelleMichaels, Mhare Mouradian, Adam Post,David Reinert, Naeun Rim, Heather Stern,Damon Thayer, Koren Wong-Ervin, AndrewYen, and myself, Stuart R. Fraenkel. On behalfof Clark Kent, the Man of Steel, and all of theauthors and editors of the Survival Guide, Iwish you all the very best and trust that inyour pursuit of truth and justice, you willprevail. ❖


Stuart R. Fraenkel is the co-founding partner of the Los Angeles office of Kreindler & Kreindler LLP. His practiceinvolves representing plaintiffs in high-profile and complex personal injury, wrongful death, business litigation,entertainment, qui tam, and insurance-related matters. He is a member of the Editorial Committee of the SurvivalGuide for New Attorneys in California. The other members are Ethel Bennett, Ori Blumenfeld, Robert Glassman,Ted Handel, Michelle Michaels, Mhare Mouradian, Adam Post, David Reinert, Naeun Rim, Heather Stern, DamonThayer, Koren Wong-Ervin, and Andrew Yen.

From the Editors

B y S t u a r t R . F r a e n k e l


Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 5

During my first year in law school I hada 3L mentor who took me under hiswing. He started me in a study groupand showed me around the library.

Soon he offered what he said was his mostvaluable advice of all: How to take a lawschool exam. I was all ears. He lowered hisvoice to a near whisper as he passed along hisnugget of wisdom to me.

“Never miss a class,” he said. “Write downevery word the professor says. Take notes atevery turn—in your study group, when read-ing cases, even when you wake up at nightwith a bright idea. You will end up with per-haps 1,000 pages of notes, too much toremember for the exam. So outline your notes.Keep the outline to under 50 pages. Eventhat is too much to remember, so outlineyour outline to no more than 10 pages. On thenight before the exam, boil it all down to 1page, then to a paragraph, then a sentence,then one word, and finally a single letter.Cram yourself into the shape of that letter, andgo take the exam.”

His advice, while certainly offered as ahumorous comment on law school exams,made a crucial point. Life’s large tasks aremastered by finding themes, overarchingtruths, silver threads woven into life’s fabric.And, for those aspiring for success in the pro-fession of law, searching for those truths andremaining true to them is essential.

Law school exams are only the first in along series of professional tests determiningwhether lawyers and judges master the essen-tial theme. The “final examination” is not onethat will be taken while enrolled in law schoolbut rather throughout a whole professionallifetime.

Is there a single theme that, if mastered,will allow law professionals to graduate withhonors when their careers are ended? If it all

could be reduced to a single letter, what wouldbe that letter? I suggest there is one letter,and that letter is “I.” Not “I” as in “me,” but“I” as in “integrity.”

For lawyers and judges, integrity is morethan an ethical imperative. Integrity is every-thing. The word, by standard definition,includes notions of personal credibility, inte-gration within the professional community,and a balance that comes from wholeness inone’s personal and professional lives—integrityin the ethical sense, integrity in the integra-tion sense, and integrity in the wholenesssense.

Ethical Integrity

Personal credibility is the quality of characterand judgment that attracts clients to lawyers,gives lawyers the capacity to win consistentlybefore judges and juries, and gives judgesthe ability to do justice as well as ensure thatthe public sees that justice has been done. Thiscredibility attaches itself not only to the argu-ment or ruling of the moment but also to thereputation of the person making the assertionsor rendering the decision. It is built day by daythrough countless interactions with others,from the moment one first aspires to the pro-fession. The wise lawyer and judge knowsthat every word and deed has, at least, thepotential for enhancing one’s personal credi-bility, and that credibility is more easily lostthan gained.

Integration

Integration within the professional communityis the great advantage of having a network ofprofessional relationships upon which onecan consistently rely for encouragement, infor-mation, and assistance in time of real need.The loner is often the loser in cooperativematters. A profession is a body of persons

engaged together in a calling, and the legalprofession is a body demonstrably greaterthan the sum of its many parts. The job oflawyer and judge is one of the most compli-cated, demanding, and risk-ridden under-takings imaginable. Those who fully integratethemselves within the professional body gen-erally tend to be more productive, work moreefficiently, and benefit greatly from the helpand cooperation of their professional col-leagues.

Wholeness

Wholeness in one’s personal and professionallives generates the wisdom and empower-ment that flow from living a balanced exis-tence. While lawyers and judges often special-ize in their professional focus, specializationin this sense should not be taken as a synonymfor narrowness. Any lawyer standing before ajury to argue a cause knows the skills mostneeded to win are often learned outside thelaw arena in the world where ordinary peo-ple live.

The trial lawyer out of touch with commonfolks will likely strike out in court—and mostespecially in communicating with jurors. Outof touch judges may produce technically cor-rect decisions, but they will not necessarilyconvince the public that justice has beendone. For the scales of justice to remain bal-anced, those who operate them, both at benchand bar, must themselves live balanced lives.Those who do that most successfully will beempowered in their work far beyond thosewho do not.

A legal career is a test of character. We whodevote our careers to law want to pass that testwith honors. And one key to winning topgrades here is found in the silver thread thatholds the fabric of our profession together—the imperative of integrity. ❖

Charles W. McCoy Jr is a Los Angeles County Superior Court judge and past presiding judge.

Integrity Is Everything

B y J u d g e C h a r l e s W . M c C o y J r .

S TA R T I N G O U T



How often do law school professors adviseyou to forget what you have learned?While I don’t advocate throwing out thebaby with the bath water, consider the

following to help you survive in the real world.WRITE SIMPLY. I think there is something

in the water at law schools that turns perfectlygood writers into terrible ones. People whoonce knew how to express an idea or argumentin a simple sentence with a noun and a verbcome to believe that legalese requires so muchmore. All of a sudden, a straightforward pointgets loaded up with “therefores” and “where-fores” and “but howevers.” But however?

Bad. Just bad.Law is a discipline, not a language. Write

in English. Write simply. Write so that some-one who is not a lawyer can understand whatyou are saying, even if the reader may not bein a position to know if you are right.

By the time I began my clerkship withJustice John Paul Stevens of the U.S. SupremeCourt, I think it is fair to say that my writinghad become a caricature of legalese. I couldbarely say something without at least a fewcommas, semicolons, and dashes in the sen-tence. Justice Stevens, who had been a lawyerin practice for years before becoming a judge,laid down the law. If we wanted to writedrafts he could use, they had to be written theway he wrote. Simple English. Short sen-tences. Clear statements. First, second, andthird. No “wherefores” or “therefores.”

If you can’t make the argument in simpleEnglish, it is almost certainly because there issomething wrong with the argument. Yourjob is not to cover it up but to figure it out.

Some easy legalese to spot:“Thus” almost always means, “Of course

this doesn’t follow from that, but I was hop-ing you wouldn’t see that if I said ‘thus.’”

“Therefore” is even worse. “Therefore”

almost always signals “not therefore.” “There-fore” tells you that there is a missing link youare trying to hide; otherwise, the “therefore”would be superfluous.

But my absolute favorite worst sentencebegins with “Thus, for example,” whichmeans, “Not only does this not follow fromthat, but this is the only example I have.”

RESEARCH CREATIVELY. Many, manyyears ago, attorneys performed legal researchusing books. I kid you not. You would findone case, which would lead you to another,and another. It was a little like following a path in the woods, especially if you came tothe task knowing nothing. Very inefficient I suppose by modern standards, but youlearned that the best legal research really is anexercise in creativity. I often tell my undergrad-uate students that if, like Rabbi Hillel, one ofthe most important figures in Jewish history,I had to summarize all of the law while stand-ing on one leg, my answer would simply be,“Like cases get treated alike, and the role oflawyers and judges is to define in a principledway (even if ideology and values are hiddensomewhere behind the rhetoric) those casesthat really are alike.”

You can’t do that just by conducting a keyword search. And don’t expect the com-puter—no matter how well programmed—to produce the obscure case that can win theargument. Only a person can do that. Iremember a new lawyer explaining to methat after literally days (maybe even weeks) of research, he was only able to come up withtwo on-point cases for what seemed to me a proposition that had to have generated moreauthority. He explained all the things that he had done on the computer with keywordsearches, even the keywords he used, as if that would convince me that there really wasno authority.

So I decided to try the old-fashionedmethod—not keyword searches, but naturallanguage—which produced more results thanI could read. I picked a few that looked likegood ones, read them, and those decisions sentme to some others. Lo and behold, whilethere were, in fact, only two cases interpret-ing the state law in question, there were at leasthalf a dozen others interpreting analogousstatutes that were clearly relevant—except tothe computer.

So view legal research not as drudgerybut as a chance to be creative, to approach anissue from a different direction. Legal researchis not simply a computerized exercise but—dare I say it—a forum for creative artistry,which is also a much better way to think of what you’re doing in front of the computerat midnight.

DON’T FORGET WHY YOU WENT TO

LAW SCHOOL. Law students tend to forgetwhy they came to law school in the first place.All those students who wrote those wonder-ful essays—about international work, bring-ing the rule of law to other countries, using lawas a vehicle for social change, prosecutingand defending, working for the governmentor public interest or in underserved areas—suddenly decide all that matters is getting a jobin a top corporate firm. Big Law Rules!

Nothing against top firms. I am fortunateto be a partner in one. But it is not the onlypath. And these days, it is not a path availableto most law students, not because they don’tdeserve the work or couldn’t do it but simplybecause of the economy.

If your definition of success is getting a cer-tain job and then you realize you aren’t goingto get it or you don’t have it, you have leftyourself no option but to see yourself as a fail-ure. And why? Because you didn’t get a jobthat you really didn’t even want until you

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at USC and a partner in the law firmof Quinn Emanuel Urquhart & Sullivan LLP.

Forget (Some of) What You Learned in Law School

B y S u s a n E s t r i c h




saw everyone else rushing up the escalator inthe hope of getting it?

I have been teaching now for 30 years.That gives me a pretty big group of former stu-dents who serve as my eyes and ears. Many ofthem started at big firms and found that theenvironment did not suit them at all, whichis just fine. Pay back those loans before youput on the golden handcuffs of a condo youreally can’t afford and a fancy car you don’treally need. You may not be in a position tofollow your heart in your first job; you maylove Big Law. But don’t forget that even if noone can have it all at once, you don’t have togive up your dreams because of what it costto earn that J.D. My happiest former studentsare the ones doing things that they love—pros-ecuting, defending, practicing law in the fourcorners of the world, starting new firms andbusinesses, and yes, practicing in big lawfirms that really do suit them.

Try to remember. What was it you wantedto be? Even if you can’t do it today, don’t giveup on doing it tomorrow. Hold onto yourdreams. Build toward them.

At the end of the day, as in all things, it isnot the hand you are dealt but how you playit. Not where you went to law school but whatyou do with that degree. Not what your first jobis but where you choose to make your mark.

There are good days and bad days in thepractice of law—tedium and excitement, chal-lenge and disappointment. But more thanthree decades after graduating from lawschool, I am still in love with the law—inlove with the way we think and analyze, thepush and pull, with the struggle to create alegal system that commands and deservesrespect, and most of all, with the feeling ofdoing well by my client. Years ago, I revieweda law review article submitted by a distin-guished professor, the gist of which was “thelawyer as friend.” How silly and simplistic, Ithought at the time, and with the arroganceof a third-year law student, I rejected it. Iwas wrong.

People may hate lawyers, but when theyare in trouble, they want the best. Clients puttheir businesses, their lives, their careers, andtheir families in your hands. It is a greatresponsibility but also an act of trust andrespect. We go out into the world and do ourbest by them, standing by our clients whetherthey are right or wrong, serving as their advo-cates but not their judges. To be that kind offriend is a noble act, a blessing that our edu-cation allows us to offer. ❖

Congratulations on joining our profession.Presumably you arrived here at the startof your career after several years of lawschool. That experience should have

provided you with a new vocabulary and avariety of skills to enable you to think like alawyer. You probably have already discov-ered, however, that law school does not actu-ally prepare you to practice law. Thus, you rec-ognize the need to continue your educationthrough practical training. But before rushingoff to expand your knowledge by building onthat law school foundation, you must evalu-ate that foundation and shed some bad habitsyou probably picked up along the way.

One vocal critic of the bad practices fos-tered by law school is Ninth Circuit ChiefJudge Alex Kozinski, who recently quipped,“Every year I hire as law clerks some of thebest and brightest law students in the coun-try, and spend a year wringing out of them allthe wrong-headed ideas their law professorstaught them.”1 Or as Jedi Master Yoda said toLuke Skywalker in The Empire Strikes Back,“You must unlearn what you have learned.”

Here’s what you really need to rethinkfrom your law student days.

READ ENTIRE OPINIONS. Students spendgreat amounts of time reading appellate opin-ions in law school. Actually, what studentsread in all those casebooks are excerpts fromappellate opinions, edited to focus on a par-ticular facet of a decision. Only rarely do theyread a full opinion. Typically, the edited-for-teaching version omitted, at the very least, fac-tual and procedural details, and may haveomitted additional analysis and concurring ordissenting opinions. The habit of reading onlypart of an opinion can be very dangerous. Toparaphrase Professor Emeritus Gideon Kannerof Loyola Law School, “Every opinion carrieswithin it the seeds of its own destruction.” If

you fail to read the entire opinion, you maymiss something important—something youradversary is likely to find and use againstyou. At some point in law school, your pro-fessors warned against relying on headnotes.Heed that advice, and break the habit of read-ing only selected portions of cases. Read thewhole megillah every time.

ALWAYS THINK CROSSOVER. Back inlaw school, you knew that if it was Tuesdaymorning, it must be torts. Wednesday after-noon was property. Friday was ethics. Classtopics were a given, so you knew what toexpect. Later, for the bar exam, you preparedfor the dreaded crossover questions, whichinvolved more than one area of law at a time.Beyond law school, every day is a crossoverday. Real world legal problems aren’t con-fined to a single subject. You must canvass theentire spectrum of conceivably relevant topicareas in every case and revisit that analysis asthe case progresses.

PROCEDURE IS CRITICAL. The abridgedcasebook opinions you studied probably lackedprocedural details (except, of course, in yourcivil procedure class), and thus, all proceduralaspects could be safely ignored while you dili-gently pondered the substantive law. After lawschool, you’ll quickly learn that procedure per-meates everything. The procedural basis for amatter supplies the critical context for all otherissues. You may have thought that procedure—simply a bunch of complicated and randomrules—is not “real law,” but, in fact, masteringprocedure is not optional. Though woefullyundervalued in law school—which tends toemphasize the big picture and deep think-ing—procedure and evidence are often asimportant as substantive law.

STRONG WRITING WINS CASES. Speak-ing of undervalued topics and skills, youprobably had only one legal research and

Benjamin G. Shatz, a certified appellate specialist, cochairs the AppellatePractice Group at Manatt, Phelps & Phillips, LLP, and is immediate past chairof the Los Angeles County Bar Association’s Appellate Courts Committee.

Much to Learn, You Still Have

B y B e n j a m i n G . S h a t z




WALTER R.ANDERSONINSURANCESERVICES,INC.has specializedexclusively in placing lawyer professionalliability insurance forthe past 30years.

Stop by our newwebsite today andlet us get started ona free, no hasslequote for you.

Or give us a call:

949-955-7950

Now with two officesto better serve you:

1834 Bath StreetSanta Barbara, CA93101805.682.8885

895 Dove Street #300Newport Beach, CA92660949.955.7950w

ww

.Law

yers

-Insu

ranc

e.co

m

www.

Lawyers-Insurance.com

writing class in law school. It may have beenungraded or worth only a couple credits ortaught by an unappreciated adjunct professor.The course probably was required but notrespected as were “real, hardcore” classes suchas constitutional law or tax. Gauging by howlaw schools treat them, one would think legalresearch and writing are minor, pesky parts oflawyering. Believing that is a huge mistake. Infact, cases are won and client goals achieved—and that is the point, isn’t it?—by writtenadvocacy (with oral advocacy a distant second).

If you haven’t started already, it’s time to hitthe books again. Surely, you remember BryanGarner, editor of the Black’s Law Dictionary thatyour auntie gave you when you started lawschool. Get your hands on some of his prac-titioner books, such as The Winning Brief orMaking Your Case, or similar books by otherauthors, such as Ross Guberman’s Point Made,to jumpstart your legal education to the nextlevel.

FORGET EXAM-STYLE WRITING. Most ofyour law school writing probably consisted oftimed exams on single subjects. Because theclock was ticking, you took a lot of approvedshortcuts, such as using silly abbreviations andfrantically bounding from one issue to another,cramming in various discussion points. Themore you wrote, the more issues you could hitand the more exam credits you could earn. Yourfocus was to display your accumulated knowl-edge. There was no time for editing. That hur-ried and scattered form of writing served aparticular purpose. Consider it history.

Successful legal writing in the real worldrequires conciseness, directness, multiplerounds of editing, and as much engaging styleas you can muster. Clients and courts wantproblem solving, not recitation of information.Law school exam answers must rank amongthe most mind-numbing screeds on earth.But outside law school, if you want yourpapers to be read and understood, you mustmarshal facts to tell compelling tales, findjust the right—and right amount of—sup-porting legal authority, and persuade thereader to agree with you—all using the fewestpossible words. And while literary style helpscapture your reader’s interest, don’t mistakeaggressiveness or sarcasm for flair. Cases arewon on the facts and the law, not on who con-cocts the cleverest put-down.

THE FACTS MATTER—A LOT. In lawschool, the focus, naturally, was on the law.Procedure and writing skills received shortshrift. So, too, did facts. Yet in the real world,

the facts drive the outcome. How valuable arethe facts and their presentation? AssociateJustice Robert S. Thompson, who served onthe California Court of Appeal from 1968 to1979, revealed that he almost always decidedhow a case would be resolved after reading the statement of facts and that reading the legal discussion rarely changed his mind.Accordingly, appellate attorney Ellis J. Horvitzis known for making this offer to adversaries:“If I can write the statement of facts in yourbrief, you can write the legal arguments inmine.” You may not have gone to law schoolto become a detective or a storyteller, butwithout ability in those roles, your masteryover the law may be meaningless.

NEVER CRY “UNPREPARED.” The morepopular law school professors probably pro-vided you with a chance to respond “pass”when called on in class. There is no such lux-ury in court. In the real world, pleading unpre-pared is an invitation to professional ridiculeand malpractice. Nor can you make up ananswer on the spot to see how it plays out.From now on, adopt the Boy Scout motto: Beprepared. And when the question you can’tanswer eventually does come your way, politelyask the court for an opportunity to quicklysupply a supplemental written response.

No doubt many other law school teachingssuffer in real-world practice:

• Law school often focuses on federal law andpractice, yet most litigation is done in thestate courts.

• Law school emphasizes trial and appellatepractice over more common activities, such asdiscovery, client counseling, and settlement.

• Law school emphasizes case law analysis,yet practice requires much, if not more, analy-sis of rules and statutes.

• Law school teaches legal research throughthe use of digests, online searches, and caselaw, but lawyers more often use treatises andpractice guides.

• Law school frequently presents conceptsthrough twisty, jerky, circuitous routes ofdeveloping common law, yet real practiceprizes pinpoint directness.

To return to the wise words of MasterYoda: “Much to learn, you still have.”

Ditching some bad law school habits willforge a clearer path for you. ❖

1 Book jacket blurb by Alex Kozinski, U.S. Court of Appealsjudge, in WALTER OLSON, SCHOOLS FOR MISRULE: LEGAL

ACADEMIA AND AN OVERLAWYERED AMERICA (Cato 2011);see also Alex Kozinski, In Praise of Moot Court—Not!, 97COLUMBIA L. REV. 178 (Jan. 1997).


http://www.lawyers-insurance.com/


Networking in any profession is not onlyvital to career growth but also criticalto professional success. In today’sincreasingly competitive market, new

associates face an even greater challenge thanthe mere billable hour requirement. Theymust also build their professional network.Proactively leveraging contacts from lawschool, business, and social and professionalevents can help elevate an attorney’s career tothe next level by providing personal satisfac-tion and financial success.

Although networking seems intimidatingat first, the foundation of a strong professionalnetwork can easily begin with friends, family,and former law school classmates and profes-sors. Once people in this inner circle becomeaware of your areas of expertise, they can keepyou in mind for future referrals. Following upwith holiday cards, occasional e-mails, orelectronic status updates on social network-ing sites can keep you fresh in their mind.

Technology also provides an easy way tobegin making a name for yourself in yourfield. Joining alumni and bar associationgroups on LinkedIn can provide a list ofpotential contacts with whom you may havesomething in common, and if you have amutual friend or colleague, that person canmake an introduction on your behalf throughthe site. In addition, specialty-specificgroups—such as the Asbestos ProfessionalsNetwork or the Products Liability Defensegroup—provide access to a virtual network ofattorneys, experts in the field, and even legalrecruiters who are looking to place attorneysin that particular specialty.

Another way to expand your network is to become a member of organizations, barassociations, and nonprofits. Groups such asthe Los Angeles County Bar AssociationBarristers and the Los Angeles Young Lawyers

Association are specifically designed to assistnew lawyers in obtaining a vast network ofpeer attorneys and legal professionals withwhich to share ideas and referrals. Beyond providing access to potential clients, joiningan organization or volunteering can increasethe chances of being selected for a job.

Managing partners and hiring directors oftenchoose one attorney over similarly qualifiedapplicants when the attorney is involved involunteer organizations or legal clinics, whichshows the candidate’s conscientiousness andcommunity involvement.

Infinite networking possibilities exist in Los Angeles through local and ethnic barassociations, chambers of commerce, in-housecounsel associations, and trade associations.Less obvious, but no less important, are socialoutlets such as Meetup.com, which allowsits members to join groups of people withwhom they already share enthusiasm for com-mon interests and activities. Networking canbe a little less intimidating when discussingyour profession over happy hour, a group-ledhike, political committees, or a team sport.

Oftentimes, networking opportunitiesalready exist at your current firm. Simpleways to show your commitment to your jobinclude becoming a member of the market-ing committee, volunteering to take a current

or potential client out to lunch, or writing anarticle for the firm’s newsletter. If your firmoffers seminars to potential or current clients,volunteer to be a speaker. Doing so will showinitiative and will provide you the opportu-nity to become further acquainted with par-ticular legal issues in your area of specialty. Do

not be afraid to take on new responsibilitiesand ask your supervisor for support.

Finally, never underestimate the power ofyour reputation. Performing excellent workand being cordial to opposing counsel or co-counsel can also result in future referrals oreven job opportunities. If you prove yourselfto be an invaluable member of the team onyour cases, other attorneys in the communitywill notice your skills and professionalism incourt, at mediation, or even through moreroutine case tasks such as discovery.

Laying the foundation for business devel-opment early on will provide immense ben-efits for your career. Networking takes time,commitment, and the persistence to followthrough and maintain lasting professionalrelationships. Even if the results do notbecome immediately apparent, the actionsyou take to build your network now willundoubtedly help your career in the futurewhen you are looking for new clients, a newjob, or to make partner. ❖

Art Jalandoni is a principal at Prestige Legal Search. Jennifer A. Grady practices employment law, products liability, and government entity defense at Hurrell Cantrall LLP in Los Angeles.

Networking Tips for the New Associate

B y A r t J a l a n d o n i a n d J e n n i f e r A . G r a d y


The actions you take to build your networknow will undoubtedly help your career in thefuture when you are looking for new clients,a new job, or to make partner.


At any law firm, chances are you willhear associates asking, “When do youwant this?” As a junior associate, I askedit more times than I can remember, and

now I hear it whenever I assign work to asso-ciates. While the question may be ubiqui-tous, the answers could not be more varied.

Just how long should that project take? Ioften mentor associates, with tongue in cheek,that there is an inverse relationship betweenthe number of years a lawyer has been prac-ticing and the accuracy with which he or shewill make that estimate. Many senior lawyershave forgotten their earlier years and set unre-alistic deadlines for completing an assign-ment, whether it is research or a draft of abrief. Understandably, associates compoundthis problem by failing to push back.

There is no better time than the beginningof your career to develop effective time-man-agement skills and set reasonable expecta-tions with your colleagues about your abilityto do the highest-quality work. Putting offthis part of your development or taking shortcuts will inevitably cause issues in the future.As senior lawyers become more familiar withyour work, rather than being assigned thediscrete, one-off project, you will be staffed oncases or transactions as part of a team. As thejunior member of the team, you will be respon-sible for many of the most time-consumingactivities, often with deadlines that competewith work for other assigning lawyers.

Learning to manage the time you spend onprojects and the expectations of more seniorlawyers is critical to your success.• As a new associate, I found that more sen-ior associates or junior partners were my bestresource within the firm for learning howlong a particular assignment should take (aswell as how to go about completing it). Theyprovided me with templates (often work prod-

uct that had been completed for the samepartners who had assigned a project to me)and gave me a good time estimate.

• Look for templates, especially from pastcases involving the lawyer who has given youthe assignment. Save your time and the client’smoney by avoiding reinvention of the wheel.When you receive a research assignment orsome drafting activity, ask other associates ifthey have any similar research or templates, orgo to the firm’s document management systemand look for examples. This is especially truewith motions and discovery. Even better, findsimilar documents created by or for yourassigning partner.

• Factor in time for your learning. Your firstfew major projects will take longer than youthink. This is true even if you receive guidance.It is especially true with motions and briefs.Some lawyers are naturally talented writersand can whip up a brief with little time andeffort. The rest of us take more time. Start early,work late, and plan ahead.

• Early in your career, do not fixate on billablehours. This piece of advice may be controver-sial—firms always tell associates to bill all theirtime and let partners write off what they feel isexcessive. Firms also say this practice allowspartners to realize that their time expectationsmay not have been well founded. You mustcommunicate the amount of time you spend ona project to the assigning lawyer, but do not letthe billable hours be an impediment to creat-ing the best possible work product.

The time you spend on an assignmentand the time you bill are different. Learn to dothe best, most thorough work that you pos-sibly can, and be prepared not to bill some ofyour time when you fill out your time sheets.Early in your career—when you are establish-ing work relationships around the office andbuilding trust with more senior lawyers—

spending additional time that you do not billto make sure that memoranda, briefs, or dis-covery responses are as good as they can bewill reap benefits. Partners will rememberthe quality of the work product, not necessar-ily how much time you spent on it. If the workproduct is not up to par, even efficient billingwill be viewed as a waste of the client’s money.

• Asking “when?” is not the same as “howlong?” Do not be afraid to ask how muchtime the assigning lawyer thinks a projectshould take—or sometimes more important,how much time the lawyer wants you tospend. With research projects, most assigninglawyers will say, “Spend ‘x’ number of hours,and then come back to me with the results.”If you get the infamous “this should only takea couple of hours,” always say, “I’ll spend twoor three hours on this, and let you knowwhat I have come up with before spendingmore time on it.” If the time spent is insuffi-cient to complete the project, you implicitlyeducate the assigning lawyer as to how muchtime the project should take.

• Avoid memos, unless you are asked to pre-pare one. Do not hand in a lengthy memo thatplods through the facts and holdings of alitany of cases when all that is needed is a cita-tion that can be dropped into a letter or brief.If you are asked to research a point, once youfind the best case or cases to support a par-ticular point, drop the summarized holdingsand salient quotes into an e-mail messageand send it to the assigning lawyer. He orshe will appreciate that you saved time by get-ting the information quickly.

• Do not be afraid to go back to an assigninglawyer empty-handed. Not all research assign-ments yield the desired result. Treat the assign-ment like a high school math exam, and beprepared to show your work. Explain whatsources, databases, and treatises you research-


HEADLINE

B y l i n e

S E C T I O N N A M E

Felix Woo is a partner in the Los Angeles office of SNR Denton, where he practices general commercial liti-gation.

The Challenges of Time Management for Associates

B y F e l i x W o o




ed, what types of cases and authorities youexamined, and what search strings you used.Be prepared to offer your analysis as to howthe research you performed advances theclient’s position, even if the cases offer nodirect support. You will earn higher regardfrom your colleagues if you leave them withmore than the perception that you did not findanything useful.

• Learn to say “yes, but.” Most associates donot want to say no when asked to take on newprojects or cases. Associates may fear reject-ing a more senior lawyer or worry that if theyreject an assignment they will not be askedagain. Associates can often find themselvesaccepting more work than they can handle.This problem is compounded by failing to ade-quately budget how much time it will take tocomplete the projects. As a result, deadlinesare missed, work product declines, all-nightersare pulled, and work-related stress is exacer-bated; your career suffers.

“Yes, but” is simply a statement that youwould be happy to help on a case, or workon a project, but you have other deadlines towhich you are already committed, and if thenew assigning lawyer is willing to acceptthose other demands, then the two of you canwork out the details. For this approach towork, you have to be honest about thoseother projects. You may not want someoneelse to get the assignment, but at least with“yes, but,” the partner makes that decisionrather than you.

• Be proactive when faced with demandsfrom competing assigning lawyers. Firms tellassociates that they should let partners hashout the associates’ competing deadlines andworkload demands. This advice is sound, butit is easier given than followed. While partnersor assigning lawyers certainly should talk, donot leave the communication up to them.Reasonably or not, some of them willinevitably harbor some resentment that youput them in that situation. Instead, beassertive, and map out deadlines and commu-nicate expectations. It is far more productiveto have discussions about workload before youfall behind than it is to tell an assigning lawyera day or two before an expected draft or workproduct is due that you are too busy.

Being proactive and managing expecta-tions about how much work you can do, andhow long it will take you to do it, will go along way toward establishing the workingfoundation you need to succeed in any firmor practice. ❖

Headline

B y l i n e

As you well know, this is one of the tough-est times to start a legal career. It is likelythat as a new lawyer, you are startingyour career already in debt. The amount

of debt that many new lawyers accrue in lawschool is growing each year as the cost of edu-cation continues to rise. When I speak to newattorneys about their finances, the ability tomanage debt is their most common concern.

Further, given the recent economic reces-sion and consolidations in the legal industry,just having a full-time job is an achievement.There are thousands of experienced lawyersout of work. When law firms hire, they tendto be selectively looking to bring on experi-enced lawyers—often those who can bring orgenerate business—at entry level price tags.In addition, the top clients of these law firmsare leveraging their relationships by lookingfor ways to cut expenses.

This triple whammy of increasing debtloads, job insecurity, and lower salaries can bedevastating to your bottom line. That is why,as a new lawyer, it is vital that you begin tomap your financial future as early in yourcareer as possible. There are some simple butimportant steps you can take.

Find a Professional for Advice

If you do not already have a relationship witha financial adviser or banker, an easy way tostart would be for you to find out where yourlaw firm banks and ask for an introduction tothe banker or “relationship manager” who isassigned to your firm.

If you still want other options, do not hes-itate to ask your family, colleagues, or friends—including people with whom they work—for an introduction to a financial professional.You will find that if people are pleased withtheir financial adviser or banker, they willjump at the chance to refer him or her.

Once you establish that relationship, youwill thank yourself later when you have sometype of banking emergency or a need thatgoes beyond planning advice. Such a futureneed can include buying a home, obtaining aline of credit, or taking out a partnershiploan. Working with someone who knowsyou, understands the nuances of your busi-ness, and, most importantly, has the ability toprovide some flexibility and customizationto your needs is vitally important.

Ultimately, now that the economy is on itsway back on track, so should you try to geton track with respect to your personal (orfamily) financial plan. If you make basic finan-cial planning a priority today, the more com-plicated planning will be easier for you toimplement down the road. Here are someimportant steps to follow to help establishyour financial health.

• Create a balance sheet (all your assets andliabilities) and a personal cash flow statementin an electronic spreadsheet. The balancesheet should detail all your liabilities (with cor-responding interest rates on loans, creditcards, and so on) and, in a separate column,all your assets (cash, real estate, stocks/bonds,personal items of value, etc.). When you sub-tract the value of your liabilities from yourassets, the resulting number will be your networth. Do not be alarmed if the number isnegative; it is not uncommon to have a neg-ative net worth as a new lawyer. In the balancesheet’s cash flow statement, detail everymonthly recurring expense that you have inyour budget (rent or mortgage payment, carpayments, insurance, student loan payments,dry cleaning, utilities, your $4 daily lattes,meals out, groceries, entertainment expenses,and so on—everything!). Then, deduct thismonthly expense total from your net after-taxincome (your take-home pay that reaches

Ben Fagerlind is a senior private banker at City National Bank in CenturyCity.

Achieving Financial Balance

B y B e n F a g e r l i n d

A D V E R T I S E R S P O N S O R E D F E AT U R E



©20

11 C

ity N

atio

nal B

ank

!ere’s a reason more than 2,400 law firms bank with City NationalIt’s called experience. A successful law firm requires a trusted advisor. Tailored banking solutions for the firm. Personal banking and wealth management strategies for its partners and associates. City National has the team of experienced financial professionals to help you and your firm succeed.

Experience the Difference. Call Kendra Edson at (866) 780-7404 or visit us at cnb.com/lawfirms.

City National Legal Banking Services Member FDIC


http://www.cnb.com/

your bank account). This resulting cash flow,which should be a positive number, is yourmonthly savings. This savings, in turn, shouldgo to your rainy day fund. If you have a neg-ative balance on your monthly cash flow, thenit is time to trim the expenses by getting ridof unnecessary expenses and by reducingyour overhead fixed costs (such as rent, insur-ance, entertainment, etc.). Once a positivemonthly cash flow is established, the nexttip applies.

• Set up a recurring monthly transfer to a sep-arate bank account. Open a separate bankaccount and try to save a portion of yourmonthly net income and your bonuses (or atleast a portion of them). It is wise to use thisaccount to pay down your debt. Pay thehigher interest debt first. Your salary shouldgo toward your recurring monthly obliga-tions, but what is left over should go to pay-ing off debt and savings. Once you haveenough cash saved up, begin an investmentstrategy that fits your risk tolerance. Be sureto start your investment conversations with alicensed investment professional at your bankor investment management firm.

• If you do not know where to start, simplyfind out the name of the person with whomyour law firm does its banking business and askto be introduced to that banker or financialadviser. If you feel that you connect well withthat person, seek his or her advice. Lawyers arenot expected to be financial planners orbankers, and likewise, bankers should notlook to represent themselves in legal matters.So hire a professional who not only is a goodpersonality fit for you but also someone whohas experience in providing financial advice.

• Make it a goal to save up an emergency fundthat can cover at least six months of yourmonthly expenses. If you cannot quite getthere, work to save enough for three months.You just never know when you might need todip into your emergency savings.

• Always pay off your most expensive debtfirst. This is especially true for credit cards andpersonal loans. Your law school loans shouldbe consolidated as much as you can at the low-est interest rates possible. If you still haverelatively high rates, consider your options.You may be able to consolidate your studentloans into a home equity line of credit, for example. This applies only if you are ahomeowner and have available equity to borrow. This type of consolidation may allowfor interest-only payments, which mayenhance your cash flow (by reducing the

amount of your minimum payment due) andpotential tax deductibility.• Contribute to your firm’s 401k plan or toyour IRA account regularly, but only to theextent that you can afford it. Paying yourmonthly obligations must take precedence, but try to force yourself to put away moneyevery month. Your retirement contributionsreduce your taxable income and allow your investments to grow, tax-deferred, fordecades to come. The best way to do this is to set up pretax automatic withdrawalsfrom your regular paycheck and automaticwithdrawals from your bank account that gointo your IRA contributions. In a way, this isforced savings, as the money goes towardyour retirement before it even reaches yourbank account.

If your firm matches a portion of your401k contribution, that is free money to you, so take advantage! Consider it a raise inyour overall compensation. Also, be sure toinvest in your 401k with each pay period. Asmuch as possible, buy during dips in thefinancial markets. This allows you to loweryour cost basis with your investments. As anew attorney, you have time on your side, soinvesting more aggressively can make sense,

if doing so fits your risk tolerance. Discussyour 401k asset allocation with your investment adviser.

If you do not have the time, ability, orinterest in doing your own tax returns, youshould hire a CPA. Consider it likely that inthe long run, an accounting professional’sservices will be more efficient, reliable, andhelpful to you than your own (especially in theevent of an IRS audit). As a new professional,hiring professionals to do the things that willhelp make your already busy life easier canmake a lot of sense. Your banker or financialadviser can offer referrals.

Finally, consider basic estate planning—especially if you are married, have children,or own real estate. Basic estate plans andinsurance policies are affordable and will startyou down the path of responsible planning foryour heirs in the event of an accident, disabil-ity, sickness, or untimely death. Your bankeror financial adviser will have referrals forestate planners and insurance providers.

Although these initial steps may seembasic, you would be surprised how many ofyour peers do not actually follow through. Byimplementing these steps, you will be farmore prepared than most. ❖


Twenty-four years plaintiff & defense experience

’

’ , CA AttorneyGeneral’s Office

Orthopedic–Spinal Expert Witness

ORTHOPEDIC SPINAL SURGEON

American Board of Orthopedic Surgery-Board Certified Orthopedic Surgeon

Fellow, American Academy of Orthopedic Surgeons

www.gpurcellmd.com email: [email protected]

GRAHAM A. PURCELL, MD, INC.Assistant Clinical Professor of Orthopedic Surgery, UCLA


http://www.gpurcellmd.com/


Professional liability insurance is an im-portant part of a lawyer’s practice man-agement. While having liability insur-ance is not mandatory in California, it is

important to understand the benefits of havinginsurance and the risks of not being insured.

WHAT DOES PROFESSIONAL LIABILITY

INSURANCE COVER? A professional liabil-ity policy covers an attorney’s defense costsand indemnity resulting from a claim of pro-fessional negligence and personal injury fromprofessional services.

WHAT ARE THE TYPES OF LEGAL SERV-

ICES THAT ARE COVERED UNDER THE

POLICY? Covered services may include pro-viding legal advice for a client, acting as amediator, arbitrator, notary public or a titleagent, as an administrator, conservator, execu-tor, guardian, trustee, receiver or in any sim-ilar fiduciary capacity, provided that such serv-ices are performed in connection with andincidental to an attorney’s practice of law.

Additionally, acting as a member of a barassociation or other legal/ lawyer related ethics,peer review, accreditation, licensing board,committee, or organization is covered. Actingas an author also may be covered, but only forthe publication or presentation of researchpapers or similar work, and only if the feesgenerated annually from all such work are lessthan $25,000.

WHAT TYPES OF PERSONAL INJURY

CAN BE COVERED? Personal injury encom-passes malicious prosecution, abuse ofprocess, defamation, false imprisonment, andwrongful eviction.

WHAT IS ERP COVERAGE AND SHOULD

MY FIRM HAVE IT? Extended ReportingPeriods (ERPs) or “tail” provisions give a lawfirm the right to report claims after a policyhas expired or been canceled. ERPs do not,however, increase or reinstate the policy’s

limit of liability. If your firm dissolves, merges,or is not renewed by its current carrier and thenew carrier is unwilling to provide full prioracts or retroactive coverage to the date pro-vided under the expiring policy, then youshould consider an ERP.

WHAT CLAIMS SHOULD BE REPORTED?

Report all claims. Failure to report couldresult in denial of coverage. Your duty toreport is especially important when fillingout an application or renewal form. If you dis-close a potential claim on an application to anew insurer, they will specifically excludethe claim. By concurrently reporting thepotential claim to the firm’s current carrier,this claim will be covered under the expiringpolicy.

HOW DOES MY FIRM GO ABOUT GET-

TING A POLICY? Working with an insurancebrokerage that has access to multiple insur-ance carriers can help you determine whattype of coverage you need. A brokerage willbe able to compare rates as well as help youthrough the application process. Obtaininginsurance shouldn’t be just about getting thebest price. You must also consider the carrier’srating and its financial size, policy form, thereputation of the insurance company, andhow it handles claims.

ARE THERE ANY STRATEGIES THAT CAN

HELP ENSURE COST SAVINGS WHILE

OBTAINING THE BEST COVERAGE AVAIL-

ABLE? Positioning your practice in a way thatappeals to insurance underwriters is key tomaximizing savings. When applying for pro-fessional liability insurance, indicate whichattorneys are full time, part time, or of coun-sel. Indicating the number of hours an attor-ney bills can save you from being charged a fullrate for attorneys working part time.Underwriters want to see that your firm is wellmanaged. Provide the insurance company with

a description of your client intake methods. Ifyour firm has trust accounts, use “evergreen”retainer agreements, which require that a min-imum balance be maintained within the trust.Note what seminars your firm attorneys attendthat contribute to their practice and risk man-agement skills. Be diligent about your accountsreceivable. Underwriters don’t want to see thatyour clients owe you significant amounts ofmoney or that suits for fees are a norm.

If your firm offers services out of the norm,provide a detailed explanation of the services.Be sure that the skills you state on your insur-ance application mirror those on your Website. Web site text can be held as misrepresen-tation in a malpractice claim, so accurately andthoroughly state what you do.

ARE THERE SPECIFIC INSURANCE

REQUIREMENTS FOR LLPS? California CodeSection 16956 requires all law firms that areLLPs and have five or fewer licensed attorneysto hold an insurance policy and/or policiesamounting to no less than the total annualaggregate limit of liability of $1 million. ForLLPs with more than five legal professionals,an additional $100,000 of insurance must beobtained for each additional licensed profes-sional. The maximum amount of insurance isnot required to exceed $7.5 million.

MUST MY FIRM DISCLOSE THAT WE

DO NOT HAVE INSURANCE? Rule 3-410 ofthe California Rules of Professional Conductrequires that attorneys who are not coveredby professional liability insurance must soinform clients. Additionally, if an attorneyhas had insurance but elects to drop his or hermalpractice coverage, clients must be advisedin writing within 30 days of the terminationof the insurance coverage. The rule applies toany legal matter that will require four hoursor more of legal representation but does notapply to emergency legal services. ❖

W. Brian Ahern, RPLU, is president/CEO of Ahern Insurance Brokerage, one of the largest independently ownedinsurance brokerages specializing in the insurance needs of law firms.

Questions and Answers about Professional Liability Insurance

B y W . B r i a n A h e r n




Something you hear at any law schoolgraduation ceremony is, “Welcome tothe practice of law.” The practice of lawis not limited to writing memos or

motions or contracts for a specific side orclient. It includes becoming a member of aprofession, with all the attendant rights andresponsibilities of membership. I believe thatgetting involved in a bar organization is anintegral part of practicing law.

Law school offers an orderly predictabil-ity that, for many, ends with graduation. Weand our friends took the same classes in thesame buildings and spent hours workingtoward the day that we would all finally prac-tice. Once we graduated, passed the bar, andbegan our lives as lawyers, things changed.Now, classmates are practicing on their own,often in what can appear to be a line of workthat is absolutely distinct from our own. Somego to court and argue for their side, while oth-ers have no interest in ever seeing the insideof a courtroom. If you picked 50 bar membersat random, you could likely find 25 differentareas of practice.

When the practice of law proves to bemore varied than its study, it is helpful tothink about what we share. We share dutiesto society by virtue of our membership inthe state bar. Unless we are lucky enough tobe part of a large organization that includesmany different areas of law and provides itsown culture, however, it can be easy to losethe feeling of place that was available in lawschool. And even if we practice law with alarge institution, we are exposed only to arelatively small set of lawyers who, like us, are working within the confines of ouremployment.

To address this issue, I suggest a way toparticipate in the practice of law that goesbeyond one’s employment setting. In Los

Angeles and across California, numerous vol-untary bar associations offer practitioners theopportunity to find commonality by practicearea, geography, ethnicity, and other criteria.Just as law school unites people who arestudying law, these associations unite people

who are practicing law. Regardless of practicearea, bar associations provide the opportunityto expand our craft. They expose us to peo-ple we never thought we would meet, andthey allow us to build friendships, relation-ships, and know-how. Associations foster rela-tionships among new attorneys and veteranand former attorneys, many of whom aretruly impressive people.

For example, MCLE courses are oftentaught by people you would not otherwisemeet. But you should not join a bar associa-tion merely to get MCLE credit, because yourmembership is good for more than that. Joina bar association to learn to be a better lawyer.When you find a group that fits you well,you will have access to years of insight into thelegal world, and you will find people who ear-lier made the same mistakes you have made(or now will not make) and who have suc-ceeded in the practice of law.

Many associations have law school chap-ters. At any given school you can find a vari-ety of ethnic and local bars. However, when

it comes to bar associations, do not limityourself to what you have already experi-enced. For example, the Los Angeles CountyBar Association has hundreds of programsand lots of people who want to help you bea better lawyer.

Being a LACBA member and leader myselfmakes me a bit biased, but when you arelooking at California organizations, theAssociation is a great place to start. It is thelargest metropolitan voluntary bar associa-tion, with sections covering virtually all prac-tice areas, and it comes with a long list of affil-iated associations. The Association’s membersare spread wide, geographically and demo-graphically, and thus it is likely that you willfind other members near you. If you want tosucceed in a particular practice area, there islikely to be a LACBA section for the practicearea in which you work or want to work.

It is easy for us to become consumed byour day-to-day duties as lawyers and lose theability to look beyond our project or assign-ment. It’s just as easy to rely too much on theInternet and become lax about developingprofessional relationships. I believe that bylooking only to the task of the day, you are nottruly practicing law. Join the Association. Getinvolved. You will learn what it means topractice law in every sense of that term. ❖


HEADLINE

B y l i n e


David Reinert is the immediate past president of the Los Angeles County Bar Association Barristers Section anda Los Angeles County deputy district attorney.

What Joining an Association Can Do for You

B y D a v i d R e i n e r t

S H A P I N G Y O U R C A R E E R

Bar associations provide the opportunity toexpand our craft. They expose us to peoplewe never thought we would meet, and theyallow us to build friendships.


Iguarantee that only those with egos big-ger than their offices revel in being referredto as senior partners. The title impliesthat the attorney is experienced, is a rain-

maker, or is a thought leader. But truth betold, being a senior partner just means you’reold. Of course, “old” is a relative term. Ithought my fourth grade teacher, Mrs.Tjomsland, was old. She was in her late twen-ties at the time.

In a law office, “old” just means someoneis separated by a gap of a generation or expe-rience. The gap entitles the person with thesubstantially lower bar number to rule yourworld—quietly and benevolently, or with aloud voice and an iron fist. While some wouldhumorously compare the relationship of part-ner and associate to that of dog and master,the relationship of a younger attorney with asenior partner is much more symbiotic.

Senior partners rely on you. You makethem profitable. You make it possible forthem to be out of the office to develop morebusiness, to play golf, and to do whateverelse they want to do instead of meeting andconferring about the impropriety of the objec-tions to Request for Production number 143.

So, assuming you want to become a sen-ior partner one day, or at least develop expe-rience before hanging out a shingle of yourown, consider the following in approachingsenior partners. I’ll write it in the first personfor ease—and, hopefully, humor.

BRING A PAD AND PENS. When youcome to my office, bring a pad and pens. Ihave pearls of wisdom to impart. They fallfrom the sky like rain when you’re in myoffice. Now I know that’s mixing metaphors,but don’t point it out when senior partners mixmetaphors. Whenever we talk, have a pad tocatch them.

This is my desk. These are my pens. I

have our central services person order themfor me special. They have the gel ink I like thatsmears on glossy paper but makes my signa-ture and atrocious handwriting look moreimportant. Don’t touch my pens. Bring twopens of your own to every meeting. One willrun out when you need it most.

UNDERSTAND WHAT YOU ARE SUP-

POSED TO DO. My time is more valuable, orat least more expensive, than yours. And themore time I spend with you, the less time Ispend with my kids and playing golf. Don’twaste my time making me repeat an assign-ment. When you leave my office, know whatyou’re supposed to do. And know how andwhen I expect it to be done. Understand theclient’s deadlines for review as well. If wedon’t meet the client’s deadlines, we won’thave the opportunity to do so in the future.

So, when we’re talking about the assign-ment, the first time is the time to nail it down.If there is any question in your mind aboutwhat you’re supposed to be doing, write anoutline first and send it to me to look at. If Idon’t respond and you follow the outline,my bad.

Of course your research and writing mayreveal a different path to pursue. Talk to meabout it before spending much time that Idon’t think is valuable (e.g., because I didn’tthink of it).

BE A PROBLEM SOLVER. Everyone getsstumped from time to time. And not every the-ory is a path to summary judgment or victoryat trial. But if we (the royal “we”) want tomake an argument and have no support forit, I can’t exactly say, “Gosh, Judge, I couldn’tfind any case authority. And I can’t think of anyground in logic, reason, or public policy tosupport my argument. But I think you shouldfind in my client’s favor anyway.” That’s aproblem. So too is anything else you uncover

that negatively impacts a case. But you’re alawyer. Figure it out. Then talk to me aboutit. In other words, don’t come into my office(and interrupt me booking my next tee time)with a problem that you’ve spent two weeksunsuccessfully researching and expect me tohave a flash of genius. Come to me with arange of possible solutions based upon legalauthority, or at least reason. Whether I like itor not, you did the research and are in a bet-ter position than I to say whether there issupport for any of the solutions you’ve createdor others I concoct while you’re sitting there.

BE CREATIVE, TO A POINT. You do notwork on an assembly line. You have the trueprivilege of working on different cases thatpresent unique legal and factual problems.You’re smart and curious. And your tasks arenot ends in themselves but are parts of largerendeavors for your clients’ cases and causes.Your luxury of time thinking about issuesmay span substantially longer periods thanmine. So if you’re doing your job, you’ll bethinking creatively about the next steps in thecase. Some of your ideas we can laugh abouttogether. Others may be case dispositive.Don’t let the former prevent you from disclos-ing the latter. I want to know your ideas.Some senior partners will view any idea thatis not their own as a bad idea. Play to it inyour presentation if necessary. And I want tohave your ideas presented in a way thatdoesn’t cost the client much, if anything. Inother words, be deliberate about the tan-gents you pursue before we collectively godown a path.

RESEARCH OFF THE INTERNET. It’s very easy to look for electronic gadgets andrestaurant reviews on the Internet, whereyour search results are driven by the key-words you use and algorithms you’ll never see.But I use less scrutiny when I am looking for

HEADLINE

B y l i n e



Michael A. Geibelson is a business trial lawyer with Robins, Kaplan, Miller & Ciresi L.L.P., where he handles unfaircompetition, trade secret, and class actions. He was the 2010-11 chair of the Los Angeles Lawyer Editorial Board.

How to Work with Senior Partners

B y M i c h a e l A . G e i b e l s o n



In today’s economic paradigm, businessesnot only are more closely scrutinizing theirexpenditures but are also particularly con-scious of their legal fees. Nevertheless,

this can work to your advantage as a newoutside attorney. Since you bill at a lower ratethan the partners in your firm, you may be theone who performs the bulk of the work. Butfees are not the sole issue in keeping in-housecounsel happy. The most important factor isestablishing trust.

DO YOUR HOMEWORK. The phrase “Doyour homework!” may foster memories ofyour parents’ nagging, but knowing yourclient is vital to providing the best represen-tation and will, in turn, keep in-house coun-sel pleased about retaining your services.Countless books and literature address theimportance of understanding your client’sbusiness, and with the advent of the Internetand other sources of social media, research-ing the type of business your client conductsdoes not pose an exceptionally difficult task.Your research will impress in-house counsel,and if your study happens to reveal a fewgaps in your comprehension, then a discus-sion with in-house counsel will help buildtheir confidence in your ability to properlyhandle the case.

DEVELOP A RELATIONSHIP. Where pos-sible, always make personal contact. Typically,your supervisor will inform in-house counselthat you are working on the matter with them.However, before contacting in-house counsel,make sure that your supervisor has given youthe authority to do so. Then set up a face-to-face meeting, preferably at their office. Donot wait for the senior partner to make the formal introduction.

Because everyone’s time is valuable, themeeting can be short and concise dependingon the circumstances. Conducting business in

person allows you to work together closelyand enables in-house counsel to get to knowand trust you.

PREPARE BEFORE YOU DIAL. Speakingto in-house counsel as a new attorney can benerve-racking. However, being prepared beforeyou place your phone call will go a long wayin calming your nerves. Unless it is an emer-gency, resist the impulse to immediately returncalls. First make sure you have your supervi-sor’s authority to contact counsel. Don’t waithours or days before dialing, but do researchthe issue quickly and construct an outline ofyour points and any additional questions youmay have. By being prepared before you dial,your return call will go much more smoothly.

INVOLVE IN-HOUSE COUNSEL. Whetheryou are a litigation attorney or a transactionalattorney, you can involve in-house counselwith your case in a number of different ways.Who will know your client’s business betterthan in-house counsel?

In litigation cases, in-house counsel can help you figure out what types of ques-tions should demand your focus during depositions, or whose depositions you oryour partner should take. When you areresponding to discovery, first draft a responsecontaining all the information you have, and then ask in-house counsel to fill in anygaps. Once you are done, set up a meetingwith in-house counsel to review the draftstogether in person or telephonically.

Invite in-house counsel to attend deposi-tions or mediations; if a specific issue arisesof which you may not be aware—such asprior lawsuits in which the company took aspecific defense (especially important whendealing with a national company)—in-housecounsel can help make sure you do not devi-ate from prior positions.

If you are working on a dispositive motion


Headline

B y l i n ethe best gluten-free pizza than when I amlooking for case authority.

Thanks to the Internet, keywords havebecome the worst form of blinders, often pre-venting people from analyzing the hierarchy ofresults the keyword searches create. And theymost certainly divert thinking about analogiesto other situations that might exist in the cases.

Old lawyers and I were trained with books.If I find something in a book that you missedin your keyword searching, tighten up yourresume. In other words, when you hit a stum-bling block, go to the books (codes, digests,etc.) or their electronic equivalent.

WRITE LIKE ME. I care about the way I amperceived by judges and juries. I care aboutmy reputation and credibility. And when yousign something that is submitted to a client orthe court, you’re doing it for a client I repre-sent. My name is at the top. So write like me.

You will not know how to do this on dayone. You will have to learn how to do it. It maybe demoralizing for the first several assign-ments you see covered in red ink (or other-wise all marked up). Sentence structures willbe changed. Adjectives and adverbs will bechanged or deleted. Ad hominem attacks willvanish. A court’s “findings” will be correctlyrecharacterized as holdings.

Either get used to it or get a new job. Andremember, the more redlining I have to do, theless golf I play. The less golf I play, the lesshappy I am. The less happy I am, the less I careabout whether your pride of authorship comesthrough in the final work product, and themore redlining I do. It’s a vicious cycle.

MORE WORK IS A COMPLIMENT. Whilepraise is nice, don’t expect it. Don’t evenexpect an evaluation. If you get more work,consider it praise. Here’s where senior lawyersobserve the generation gap most. In recentyears, little leagues have given out large tro-phies to every player. Everyone is a winner, thephilosophy goes. Not so for lawyers of the pastgenerations. Not everyone gets praise. And noteveryone keeps their job.

There is a time and a place for evalua-tions—some frequent, some annual, and somenot at all. Don’t ask the senior partner for anevaluation of your work at an inappropriatetime. If you’re not getting enough evaluation,express an interest in it, and set a lunch to talkabout it—away from the office.

If you do senior partners the favor of under-standing and fulfilling their needs and respect-ing their time, they will do you the favor ofpractice development. If they don’t, leave. ❖

Mhare O. Mouradian is a senior associate in the Los Angeles office ofMurchison & Cumming, LLP, where he focuses his practice in the areas ofcomplex civil litigation and business litigation.

In New Attorneys We Trust: How to Make In-House Counsel Happy

B y M h a r e O . M o u r a d i a n




Headline

B y l i n e

such as a summary judgment, forward it to in-house counsel in advance of your deadlineto allow for their input. In transactional mat-ters, find out what other types of agreementsyour client has engaged in and what terms are

most essential.PROVIDE DETAILED DESCRIPTIONS

WHEN YOU BILL. More often than not, in-house counsel will review the legal billsfrom outside counsel. Unfortunately, for mostnew attorneys, adequately describing billabletasks can be difficult. After all, most lawschools do not provide a class on billing. Themost important rule to remember is to use thefive Ws—who, what, when, where, and why.For example, if you bill for review of medicalrecords, state the reason why you conductedthe review (such as “in preparation of damagessection of mediation brief”).

Follow these key recommendations, andyou’ll be on your way to keeping in-housecounsel happy. Although your primary obliga-tion is always to your firm, you’ll make valu-able connections that you may need in thefuture. ❖

Since you bill at alower rate than thepartners in your firm,you may be the onewho performs thebulk of the work.But fees are not thesole issue in keep-ing in-house counselhappy. The mostimportant factor isestablishing trust.

Do you remember Kermit the Frog sittingin a boat, strumming a banjo, singing“The Rainbow Connection”? It’s aninspirational tune about finding an idyl-

lic place. Long after my first hearing of “TheRainbow Connection,” I began my legal careeras an associate in a large litigation firm. Ilearned that the legal profession has its ownversion of the rainbow connection. Firmlawyers whispered of a pleasant place wherelawyers work in harmony with other peopleand don’t spend their days scrambling tomeet deadlines and scrapping with oppos-ing counsel, where lawyers don’t have to sac-rifice their personal lives to earn their keep.They called this happy place “in house.”

No one really knew how to get there. Weall knew lawyers who had, but each one ofthem had a different story of how to arrive. Itwasn’t like the Emerald City, to which therewas a yellow brick road where you just putone foot in front of another. Then, one day, mytime came. There wasn’t much warning. Therewere no signs leading to the end. Like a spiritabandoning its earthly shackles, I left theworld of litigation and passed through thepearly gates of corporate counsel.

The truth is, most in-house counsel startedtheir careers at law firms. Companies gener-ally look for experienced lawyers to assistthem with specific needs, so they are lesslikely to recruit straight from law school.Instead, most companies are looking forlawyers with existing experience in particularfields who can help deal with the immediateproblems the business is facing. Of course,there are lawyers who begin their careers inhouse, often with internships at larger com-panies. But the majority spend at least a fewyears at a firm before moving in house.

You may expect that particular practiceareas are a better path to in-house positions,

and corporate and transactional experience islikely to be useful to a company. But in-houselawyers have very diverse backgrounds, andmany come from litigation or any number ofother disciplines. Some practice areas do notlend themselves well to transitioning in house.Few companies need a criminal lawyer orfamily law practitioner on staff. But a surpris-ingly large number of practice areas can leadto an in-house career. Businesses deal withcorporate, intellectual property, product liabil-ity, real estate, insurance, compliance, andother issues regularly, so lawyers who havepracticed in those areas may have an in-houserole. There is no one field that creates the bestpath to a career in house, but gaining experi-ence with issues that are the most likely toaffect businesses on a regular basis doesincrease the chance that a candidate will fit abusiness’s needs when a position opens up.

Perhaps it should be no surprise that agood way to position yourself for an in-housejob is also the best way to secure your positionat a firm. Do quality work that motivates yoursuperiors to work with you again. Develop rela-tionships with coworkers and clients. Learnyour field well, and get your name out thereas an expert. When companies go looking forcounsel, they want people who they believe canresolve their challenges and work with theiremployees. An outside attorney with whomthey have already established a relationshipmay qualify, especially if the attorney has theresume, qualifications, and personality to getthe job done. The more successful you are asoutside counsel, the more likely that somecompany will want you as in-house counsel.

However, being a good lawyer is notenough to increase the likelihood of findingan in-house position. A recent survey by theAssociation of Corporate Counsel revealedthat the majority of in-house lawyers found

David Schnider is general counsel for Leg Avenue, Inc., a leading distributor of costumes and apparel.

Weighing the Benefits of Being an In-House Counsel

B y D a v i d S c h n i d e r



their position through networking or busi-ness connections rather than by responding toa job listing.1 I made the transition by devel-oping a relationship as outside counsel for aclient. Once the client became large enough toneed in-house counsel, I was the first choice.The best way to position yourself for an in-house position is to develop relationships withbusinesspeople by reliably giving them usefuladvice as outside counsel. Attending network-ing events and social events with in-housecounsel can also help develop relationships thatcan lead to being considered when an appro-priate in-house opportunity opens.

Pluses and Minuses

Do you really want to go in house? On the sur-face, in-house positions appear very attractive.But know what you are getting into, becausethey are not for everyone. There are certainlysome benefits to most in-house positions.For many attorneys, the first benefit of beingan in-house counsel that comes to mind isbilling. In a firm setting, the pressure to billis so constant that many lawyers end upthinking in six-minute increments. Most in-house positions do not require billing, andeven those that do are rarely as rigorous aboutrecording time. As a result, performance forin-house lawyers is far more likely to be meas-ured by quality of work and value to the busi-ness than sheer hours billed.

In part as a result of the lack of billablehours, most in-house jobs require less work,even if they are not 9-to-5 jobs. Corporatecounsel still put in long hours that can includetravel and weekends. When the companyneeds you, you’re expected to be there, but thejob is typically less intense than one at a firm,where 80-hour weeks are not uncommon.

Further, even though the hours of an in-house position may not be as demanding asthey are at a firm, an in-house attorney, sim-ply by virtue of representing a single client, maygenerally become much more deeply involvedin the client’s business. It is not unusual for in-house counsel to transition into other seniorbusiness positions. Even entry-level corpo-rate counsel have a closer relationship withtheir business counterparts than outside coun-sel. It is rewarding to feel directly involved inhelping to build a business. Businesspeoplesometimes see the familiarity that attorneyshave with the law as almost magical and trustour reading of documents, even when thosedocuments are in plain English.

Professional respect and an end to the

tyranny of the billable hour, however, areonly half the story. To make the transition inhouse, most firm lawyers have to take a paycut. Most attorneys can earn more working fora firm. Leaving a firm to go in house alsomeans accepting a significant change in workenvironment. Given the variety of in-housepositions, it is hard to generalize about thatchange. A lawyer going into a smaller com-pany may find that he or she is the only

lawyer at the company. At a firm, an attorneymay get used to spending time with otherlawyers, and it can be a shock to be sur-rounded by people who don’t get jokes aboutthe rule of perpetuity. Even in a large companywith many lawyers, the legal team is rarely themost important part of the company. In afirm, every person, every piece of equipment,and every outside vendor is there to servethe lawyers. In a company, on the other hand,lawyers may be seen as a necessary evil.

Furthermore, while working for a singleclient allows an in-house attorney to becomedeeply involved in the business, that meansfar less variety. Firm lawyers with many clientsare able to handle a wider assortment of mat-ters. The in-house counsel must focus on thespecific challenges of only one business.

Another downside of representing a singleclient is that your fortunes are tied to that com-pany. To some extent, the same could be saidabout firm lawyers, whose firm could go outof business. But lawyers at firms are generallyat far less risk of losing their jobs. When lawfirms tighten their belts, they fire staff first.Companies tightening their belts see lawyersas staff, and expensive staff at that. Further-more, firm lawyers who have a book of busi-ness can continue to represent clients regard-less of what may happen to the firm or to oneclient. If one client cuts legal work or goesunder, attorneys at a firm still have others torely on for business. When you have only oneclient, its demise is the end of your job.

It is also harder to transition out of an in-house position. Unlike a law firm partner,

in-house lawyers rarely bring any portablebusiness with them. Going back to a firmessentially means starting over from scratchtrying to build a client base. In addition,because in-house lawyers usually have a lessdiverse practice than firm lawyers, they aremore likely to be pigeonholed by the indus-try or type of work they handled in house. Anemployment lawyer coming from a firm haslikely handled a variety of issues for different

types of businesses and brings all that expe-rience to any interview. By contrast, an in-house employment lawyer’s experience is lim-ited to the types of issues handled for a singlecompany in a single industry.

The greatest challenge in-house lawyersface is explaining their value. At a law firm,the lawyers are the producers. They bill thehours that bring in the money that pays foreveryone and everything at the firm. In house,the situation is the opposite. Lawyers are usu-ally a very large cost that seems to do noth-ing but eat away at profits. In many ways, itis difficult to justify to a businessperson whythat cost is worthwhile. When a salespersonmakes a big sale, measurable amounts ofmoney roll into the company. When a lawyerwrites a contract so airtight that it is unchal-lengeable, nothing happens. Even worse,doing a good job may mean telling business-people that they can’t do what they wantbecause of risk to the company. Saying no maybe the right way to protect the client, but it canmake businesspeople feel that the legal depart-ment is merely an obstacle to growth.

In short, while there are plenty of advan-tages to being an in-house counsel, there arejust as many disadvantages. Being an in-houseattorney is not a one-size-fits-all dream job.While outside counsel may hear “The RainbowConnection” in their heads when thinking ofbeing in house, corporate counsel may hear“It Ain’t Easy Being Green.” ❖

1 ASSOCIATION OF CORPORATE COUNSEL, THE 2011 IN HOUSE

COUNSEL COMPENSATION SURVEY (2011).


The more successful you are as outside counsel, the more likely that some companywill want you as in-house counsel.


HEADLINE

B y l i n e



For some of you, your first job may mir-ror those of days gone by, when associ-ates stayed at their first firm for theirentire career. However, the majority of

new practitioners will become part of theincreasing trend of lawyers changing legalfields or even careers. Many paths can lead toa fulfilling career in the law, but lawyers oftenmay question where their individual path will lead.

In these rough economic times, withhordes of new lawyers competing not only forthe top firm jobs but also for all legal jobs, newlawyers need to maintain perspective—whichcan be especially hard when student loansbecome due.

In today’s job market, some new attor-neys—who as students arrived at law schooldreaming of becoming an entertainmentlawyer—find themselves now accepting jobs at large insurance defense firms. In fact,many new lawyers are not lucky enough tobegin in the practice area of their choice. Thekey is to not lose hope if you find yourself ina position that does not fit your long-termcareer goals.

While searching for that first position, oneoption available to lawyers who find them-selves in career flux is to perform temporarylegal contract work. Many legal staffing com-panies list short-term and long-term projectsthat require the assistance of temporarylawyers. Even document review for a legalstaffing company can be a good way to buytime to network with other lawyers while stillbringing in an income.

If you want to stay in the law and changeyour practice area, consider the idea of dis-covering your own way of moving ahead. For many new lawyers who realize that theyare unhappy in their initial legal job, spend-ing time and effort to find a better fit within

one of the many niches of the law may very well pay off. Many new lawyers realizethat the remedy to finding themselves at thewrong firm or area of the law is to transfer toa new firm or to start their own practice.These options allow a new lawyer or a lawyerwith a few years’ experience to avoid com-pletely abandoning the practice of law byshifting gears.

Ask yourself if your dissatisfaction withyour current legal job is based on the firm cul-ture where you are employed or on your areaof practice. This question will allow you todetermine how to focus your efforts.

If you are considering a change in yourpractice area, one of the best ways to do thisis to contact your law school alumni office andfind local experienced attorneys who practicein your newly targeted area of practice.

For example, one lawyer friend of minepracticed civil litigation for several years beforedeciding that he was interested in estate plan-ning and tax law. He slowly started to speakto other attorneys who practiced in this field,taking them out for lunch or coffee. This ledto his researching LL.M. degrees and subse-quently enrolling at one of the nation’s topLL.M. taxation programs.

Now, instead of being an unhappy civil litigation associate, he has found happiness inpracticing estate planning at a small firm. Hisjourney to find his place in the law took himjust a few years of introspection and retrain-ing to prepare for a new practice area. Justthink what he would have missed if he hadchosen to simply abandon the practice of law completely.

A re-exploration of your legal interestsmay not be applicable if you have certaingoals that a career as a lawyer just may not ful-fill. If you have had an epiphany that youreally want to become a professional painter,

a firefighter, or a musician, then merely find-ing a different legal field probably will notresolve your current dissatisfaction with yourinitial job.

You will not be the first to leave the prac-tice of law altogether. Go follow your dreams,but there is one caveat. You must take the req-uisite time and self-reflection to make sure youwant to enter a field unrelated to law, becauseif you wish to return to the practice of law ata law firm someday, a few hiring partnersmay look at your venture as a black mark onyour resume. However, this will be of littleimportance if you do not ever see yourselfreturning to the billable hour and the firmcareer track.

Fight the feeling that you might havewasted your time and money by going to lawschool if you eventually decide that you wantto change careers. You can still apply your legaltraining to your new position. Remember,the analytical and decision-making skills thatyou gained by studying the law apply to abroad range of fields, including banking, busi-ness, and government.

For example, a law school friend of minejoined the U.S. Army as an officer, and anothercolleague has applied to work for the FederalBureau of Investigation. Both of them viewtheir time spent in law school and in the legalprofession as invaluable assets that they canbring to their new careers.

After incurring law school debt, manyattorneys who decide to leave the law don’tknow where to begin. The next step can seemoverwhelming. Talk with people you knowwho are in careers that interest you. Don’tthink that your professional path in the lawor in another field needs to mirror that ofyour law school colleagues. As lawyers, ourcareer paths are as different and varied as ourindividual personalities. ❖

Adam J. Post is a criminal defense attorney and a former deputy district attorney who began practicing law in Californiain 2004 after graduating from UC Davis School of Law.

Career Transitions

B y A d a m J . P o s t




Do you want to create public schools thatoffer every child a chance to excel? Areyou eager to tackle the tough issues ofpoverty affecting millions of Americans?

These challenges, and more, are the dailywork of public interest lawyers. Despite theopportunities, talented would-be public inter-est lawyers sometimes are sidetracked by com-mon misconceptions about the profession.For those of you who dream of becoming apublic interest lawyer, the first step is to learnthe facts too often obscured by the myths sur-rounding this exciting area of the law.

MYTH 1: PUBLIC INTEREST LAWYERS

SHOULD NOT BEGIN THEIR CAREERS AT

PRIVATE LAW FIRMS. Perhaps the most per-sistent myth is that lawyers seeking to makea career in public interest law must headstraight to a public interest organization fortheir first job as lawyers. This is untrue forthree reasons.

First, public interest opportunities are verytough to find for new lawyers just graduatedfrom law school. Most public interest organ-izations only hire first-year lawyers if they areable to secure a fellowship—and the compe-tition for these rare and coveted slots is fierce.

Second, faced with paying back hefty stu-dent loans, more and more students have nochoice but to spend some time at a private lawfirm before they are in a position to jump intoa public interest job. That’s just a reality, andpublic interest employers are well aware of it.

Finally, public interest employers, likeeveryone else hiring attorneys, want practition-ers with experience. In fact, the halls of mostpublic interest organizations are increasinglyfilled with former private firm lawyers. That’show I got started as a litigator at O’Melveny& Myers LLP. Many attorneys committed topublic interest law join firms with the inten-tion of obtaining valuable litigation experience

and skills. Years at a firm can provide anattorney with an intensive, world-class edu-cation about all levels of complex litigation.Firms also provide new attorneys with men-tors who can demonstrate in direct and per-sonal terms what people of conscience canaccomplish in a business environment.

While at a firm, however, you absolutelymust show a continued commitment to pub-lic interest law—either through significantpro bono work, volunteering on boards ofnonprofit organizations, or other forms ofpublic service. Public interest organizationsroutinely receive impressive applications fromlawyers working at large firms in which thestated commitment of these lawyers to pub-lic interest law is belied most strikingly by theirlack of pro bono service during their time attheir firms. These applicants do not go far.

Seek out high-quality opportunities atyour firm that complement the interests andgoals you have for public interest work. Ifyour dream is to litigate high-impact civilrights cases, immerse yourself in complexclass actions. Take as many depositions asyou can, and volunteer for any cases going totrial. If you are interested in economic devel-opment issues, seek out opportunities in thetransactional departments at your firm. Manyof these departments can provide you with thecorporate and tax experience that you willneed to be an effective advocate on affordablehousing, redevelopment, zoning, and similarissues. Be strategic in your workload choices.

MYTH 2: PUBLIC INTEREST WORK IS

LESS SOPHISTICATED THAN HIGH-END

TRANSACTIONAL MATTERS OR CORPO-

RATE LITIGATION. Another common mis-conception is that public interest work is notas intellectually challenging as the transactionalor litigation work performed at well-regardedprivate law firms. Many outsiders assume

that the public interest profession, while eth-ically satisfying, does not require the mostrefined levels of legal analysis and skill.

This is simply not true. To succeed, a goodpublic interest lawyer must be an excellentwriter, oral advocate, negotiator, social worker,and theorist. Tackling poverty is no smalltask. It requires an enormous amount of cre-ativity. Whether constructing novel constitu-tional theories to attack cuts in social servicesor litigating on behalf of a single mother aboutto lose her home in foreclosure, a public inter-est lawyer is usually fighting an uphill battlenot just to apply the law but often to expandcurrent interpretations of the law. Doing thiswith limited resources for clients with a com-plex mix of legal, social, and economic prob-lems requires the very best from any attorney.

The rewards of this daily work, however,are immense. Public interest attorneys rise inthe morning with a clearly defined sense ofpurpose, knowing they are part of a largermovement of advocates dedicated to creatinga more equitable society. Like any attorney,those of us who are public interest attorneyswant to win for our clients. We take seriouslythe realities of poverty, unequal opportunity,discrimination, and economic injustice.

MYTH 3: PUBLIC INTEREST ATTOR-

NEYS DO NOT BRING ABOUT MAJOR

SOCIAL CHANGE. Many attorneys in the pri-vate sector believe that the work of publicinterest lawyers is limited to one-on-one rep-resentation of low-income clients. Because ofthis myth, attorneys routinely ask those of usin public interest organizations, “With somuch poverty in our communities, how canyour attorneys make a larger impact?”

The truth is that virtually every sophisti-cated legal services organization devotes sig-nificant time and resources to addressing sys-temic issues. Impact litigation, policy advocacy,

Hernán Vera is the president and chief executive officer of Public Counsel. He also serves on the board of direc-tors of the State Justice Institute and is one of 12 lawyer representatives of the Ninth Circuit Judicial Conference.

Dispelling the Common Myths about Careers in Public Interest Law

B y H e r n á n Ve r a



and community education are among thearrows that public interest attorneys have intheir quiver to attack the broader problems fac-ing their clients.

Impact litigation is a good example of howpublic interest organizations can improve thelives of tens of thousands of people at once.Public interest lawyers have been involved instatewide settlements that garnered millions ofdollars in benefits for special-needs childrenand the disabled as well as class actions thatexpanded the rights of detained immigrants,students, homeowners in foreclosure, and thehomeless.

Likewise, public interest attorneys havebeen very active in sponsoring and advocatingfor state legislation affecting the communitiesthat they serve. Public policy advocacy is animportant part of public interest lawyering.Much of the recent legislation protecting fos-ter children and consumers and providingaffordable housing and healthcare has beenpassed with the on-the-ground work of pub-lic interest lawyers.

MYTH 4: PUBLIC INTEREST LAWYERS

LACK THE RESOURCES TO TACKLE THE

BIG ISSUES. Many believe wrongly that stateand federal government enforcement agenciesare the only organizations well equipped tohold corporations and other groups account-able. While it is certainly true that most pub-lic interest organizations have lean budgets,this does not mean that they are powerless totackle major issues. The principal meansallowing public interest firms to leverage enor-mous resources is, of course, pro bono.

Virtually all of the firms from The AmLaw 100 have a keen interest in supportingpro bono litigation. Those firms that are espe-cially active often assign large teams of part-ners, associates, and paralegals for complexpro bono cases that last years. Moreover,legions of attorneys—from solo practitionersto small firms to plaintiffs’ attorneys—areeager to get involved by becoming cocounselwith public interest firms. This enormousreservoir of pro bono talent, passion, andresources allows public interest organizationsto be at the forefront of efforts to address theimportant legal issues of our time—and isan amazing credit to our profession.

A career in public interest law offers a vari-ety of opportunities for creating social change.Whether you find your way to public interestwork after toiling at a firm or fresh from lawschool, don’t let these myths about the profes-sion deter you from your dream. ❖


Legal work that attorneys perform probono publico (for the public good) is thefoundation of our legal system. Suchwork is routinely responsible for land-

mark legal decisions that have establishedthe principles of our modern jurisprudence.Pro bono services also fill critically impor-tant needs by providing legal assistance toindividuals facing extreme consequences. Andfor lawyers, performing services pro bono ismore than just an obligation. New membersof the bar will find that pro bono work affordsimportant and enriching opportunities to par-ticipate in litigation in ways that traditionalpractice typically does not allow.

Pro bono legal representation is not a newconcept. Aristocrats provided free legal advicein ancient Rome.1 In medieval England, advo-cates were required by statute to serve the poorfor free or face possible disbarment.2 Duringthe American colonial era, religious opposi-tion to litigation led to restrictions on thepractice of law, including a Virginia statute that

banned lawyers from charging a fee.3 ThePuritans and their ideal that all were “calledto serve” contributed to a strong pro bono tra-dition in early America.4

Our modern legal culture has continuedthis tradition of supporting pro bono repre-sentation. For example, in 1974, Congresscreated the Legal Services Corporation, a non-profit that serves as the single largest providerof civil legal aid for the poor in America.5

The American Bar Association promotes theidea that every attorney has a duty to renderservices to the indigent and should aspire toat least 50 hours of service each year.

Landmark Cases

Numerous examples throughout our nation’shistory show how top lawyers have taken onthe most difficult cases on behalf of individ-uals who could not afford to pay for theirservices. An early example is John Adams,who represented the British soldiers accusedof perpetrating the Boston Massacre. Although

Blaine H. Evanson and Vania M. Gauthreaux are litigation associates inthe Los Angeles office of Gibson, Dunn & Crutcher LLP.

The Essential Role of New Lawyers inPro Bono Work

B y B l a i n e H . E v a n s o n a n d V a n i a M . G a u t h r e a u x

AM

AN

E KAN

EKO




Adams described the experience as “the mostexhausting…causes I ever tried,” he wrotethat “it was…one of the most gallant, gener-ous…and disinterested actions of my wholeLife, and one of the best pieces of service I everrendered my country.”6 As a volunteer attor-ney for the American Civil Liberties Union,Clarence Darrow represented the teacheraccused of teaching evolution in the 1925Scopes “monkey trial” case.7 Chief JusticeJohn Roberts and Justice Ruth Bader Ginsburgboth engaged in significant pro bono workbefore they joined the bench.8 JusticeGinsburg, in particular, was one of the nation’sleading advocates for gender equality duringthe 1970s.9

Many of the most fundamental legal deci-sions that have shaped American jurispru-dence are the result of this rich tradition of probono representation. Indeed, constitutionallaw casebooks are full of cases brought by probono attorneys. Some of these landmark U.S.Supreme Court cases include:

• Miranda v. Arizona, which requires police toinform individuals of their rights before acustodial interrogation.10

• Gideon v. Wainwright, which establishes aSixth Amendment right to counsel for seriousstate criminal offenses.11

• R.A.V. v. St. Paul, which declares that con-tent-based distinctions in speech regulationsaimed at unprotected speech violate the FirstAmendment except in limited circum-stances.12

• Loving v. Virginia, which abolished lawsprohibiting interracial marriage.13

Pro bono attorneys were also critical inhelping then-lawyer Thurgood Marshall argueand win Brown v. Board of Education of Topeka,which struck down laws that establishedracially segregated schools.14

It is hard to imagine our legal system with-out these and myriad other important prece-dents that simply would not exist were it notfor attorneys who agreed to represent individ-uals who lacked the resources to pay for liti-gation.

The Pro Bono Crisis

Most attorneys will not have the opportunityto brief and argue a landmark Supreme Courtcase, but there are numerous areas of the lawfor which pro bono legal representation isurgent and essential. These opportunities givelawyers with any level of experience thechance to have an important impact.

As Samuel Johnson said, “A decent provi-

sion for the poor is the true test of civiliza-tion.”15 And every day, low-income Americansface life-altering challenges such as deporta-tion, eviction, foreclosure, unsafe housing,bankruptcy, domestic violence, and child cus-tody disputes. The consequences of losing inthese matters can be disastrous, includingthe breaking apart of families, loss of a home,serious injury, or even death. Individuals lack-ing resources at such critical moments in theirlives simply cannot afford even basic legalrepresentation, nor can they navigate the legalsystem without the aid of an attorney.

The problem is that at least 80 percent ofthose who need civil legal assistance do notreceive any.16 One report concluded that “thenumber of free legal service needs per year inthe United States could be as high as 150million.”17 These are startling figures thatshould motivate every new attorney to increasehis or her commitment to serving those inneed. According to a 2004 ABA survey, theaverage number of pro bono hours per yearwas 77, with 46 percent of attorneys provid-ing 50 or more hours of pro bono serviceduring the year.18 This level of participationwill need to rise substantially to even comeclose to filling the needs of individuals andfamilies.

New lawyers are in perhaps the best posi-tion to help close the critical gap betweenthe need for pro bono legal services and theavailability of lawyers to perform the work. Probono work offers new lawyers critical litiga-tion experience that helps them gain skills ear-lier in their careers than they might otherwiseobtain from working on cases for payingclients.

The reason for this is not a mystery. Clientsthat spend hundreds of dollars per hour fortheir representation want experienced attor-neys arguing motions, taking depositions,and examining witnesses. The learning curvefor these tasks is steep, and clients do not wantto spend money training the associates work-ing on their matters. For example, clientswant associates that have been previouslytrained on depositions in other cases to takethe depositions in their cases—and under-standably so.

What results is somewhat of a cycle for newattorneys. The oral arguments and deposi-tions are given to more senior attorneysbecause the junior attorney lacks the experi-ence. By missing out on the depositions thatare passed up the seniority ladder, the juniorattorney is denied the experience necessary to

be able to take the deposition in the next case.Pro bono clients generally do not have

the same demanding requirements as payingclients. They are usually thrilled to have legalrepresentation and are willing to allow theattorneys taking their case to do some learn-ing on the job. As a result, newer lawyers areable to take on far more significant roles in probono cases than they would in other similarlycomplex cases for paying clients. This allowsattorneys to develop their skills and gainexperience that transfers directly to their dailymatters, because clients value experience,regardless of whether the work was for a pay-ing client or a pro bono client.

The immediate need for pro bono servicesis clear and present. Our legal system needslawyers to offer pro bono representation forthe millions of individuals who are strugglingthrough crises without any legal assistance.The lawyers who are willing to do so willbenefit in several ways. In addition to fulfill-ing a key civic responsibility, new lawyerswho perform pro bono work will gain expe-rience far more rapidly than they otherwisewould at their paying jobs.

Pro bono work is therefore not only a crit-ical societal investment. It is also important forthe development of a new attorney’s career.❖

1 Judith L. Maute, Changing Conceptions of Lawyers’ ProBono Responsibilities: From Chance Noblesse Oblige to StatedExpectations, 77 TUL. L. REV. 91, 97 (2002).2 Id. at 97-98.3 Id. at 98.4 See id. at 100-01.5 About LSC: What is LSC?, http://www.lsc.gov/about/lsc.php (last visited Feb. 22, 2011).6 Ted Frier, Echoes of John Adams and the Boston Massacre,THEY GAVE US A REPUBLIC…, Mar. 7, 2010, http://www.theygaveusarepublic.com/diary/5094/echoes-of-john-adams-and-the-boston-massacre (last visited Feb. 22,2011).7 Bruce J. Ennis, ACLU: 60 Years of Volunteer Lawyering, 66A.B.A. J. 1080, 1081 (1980).8 See Richard A. Serrano, Roberts Donated Help to GayRights Case, L.A. TIMES, Aug. 4, 2005, at A1; see also Ennis,supra note 7, at 1082.9 Ennis, supra note 7, at 1082.10 Miranda v. Arizona, 384 U.S. 436 (1966).11 Gideon v. Wainwright, 372 U.S. 335 (1963).12 R.A.V. v. St. Paul, 505 U.S. 377 (1992).13 Loving v. Virginia, 388 U.S. 1 (1967).14 Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954).15 JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 182 (1791).16 Evelyn Nieves, 80% of Poor Lack Civil Legal Aid, Study Says,WASH. POST, Oct. 15, 2005, at A09.17 See Leslie Boyle, Meeting the Demands of the IndigentPopulation: The Choice between Mandatory and VoluntaryPro Bono Requirements, 20 GEO. J. LEGAL ETHICS 415, 417(2007).18 ABA STANDING COMMITTEE ON PRO BONO AND PUBLIC

SERVICE, SUPPORTING JUSTICE: A REPORT ON THE PRO BONO

WORK OF AMERICA’S LAWYERS 13 (2005).



According to the U.S. Bureau of LaborStatistics, about 25 percent of attorneysare self-employed.1 Many solo practi-tioners say that they prefer to be the

master of their destiny, and many clients pre-fer the reduced rates and personal treatmentavailable from a solo practitioner. The bigfirm pyramid does not suit all attorneys orclients.

At a big firm, the lowest compensationgoes to those at the bottom of the pyramid andthe highest to the top, which is reserved forequity partners. Most attorneys occupy the bot-tom. As associates climb up, their salariesincrease. However, toward the top of the pyra-mid, compensation approaches the billablerate, and the firm’s profit margin diminishes.The more senior a lawyer becomes, the lessprofit an equity partner makes from his orher billed hours. This is why many big firmlawyers are let go in their 7th through 10thyears. (On the other hand, many big firms losemoney training new lawyers who leave afteronly four or five years). Given the realities ofthe pyramid, many attorneys who work for bigfirms begin to sense, sooner or later, that theyare just grist for the mill. This is why manyleave in their fourth and fifth years. Moreover,after a few years, many feel confident enoughin their legal abilities to go solo.

Doing the Math

A solo practitioner billing at $250 per hour(and working 1000 rather than 2000 hours)can earn a gross income of $250,000. Thus,a solo can gross about the same as a big firmlawyer while working half as much. A moreambitious solo could work 2000 instead of1000 hours per year and gross $500,000.What is more, the solo can be his or her ownboss, set his or her own hours, and workfrom home in pajamas and bunny slippers.

And for as little as $350 per month (a littleover an hour’s worth of work) the solo prac-titioner can lease a virtual office with call for-warding and use of a conference room asneeded. However, major issues remain forthe would-be solo’s consideration.

First, the solo practitioner may not fill a fullbook of business. Few clients are willing to pay$250 per hour forever. Landing one client forone job certainly seems possible, but sinceoverhead is ongoing, so too must be the solo’sstream of income. This is especially true for solopersonal injury lawyers who must have signif-icant capital to advance costs to fund litigation,which is usually taken on contingency.

Building a client base that can sustain a lawpractice can be a very slow process involvinga major commitment to networking, whichmany lawyers consider to be beneath them.Attorneys who cannot ask for business may notbe candidates for solo practice. Those who canmarket themselves have myriad networkingopportunities, including joining bar associa-tions and committees in their areas of practice,joining the boards of organizations, and attend-ing sponsored events. These activities are gen-erally scheduled after hours, however, andcan extend a working day well into the night.

Running a Business

A second issue is that a solo without clear pri-orities risks creating a private hell. Mostlawyers become lawyers because they want topractice law. Lawyers often find that theywant nothing to do with the tasks involved inrunning a business. These include case man-agement, human resources, collecting onaccounts receivable (a major time vortex),office administration, fixing the copy machine,and all the other basic business operations thatare necessary for a firm to thrive. Also, unlessyou have an MBA, you can expect to need to

learn a lot about how to operate a business. In 1989, author Stephen Covey published

a bestseller called The 7 Habits of HighlyEffective People.2 The habits are in harmonywith what Covey calls natural law. One ofthese laws is best illustrated by Aesop’s fableof the goose and the golden eggs.

You probably remember the story of apoor farmer who discovers a golden egg in thenest of his goose. He cannot believe his goodfortune and becomes more incredulous thenext day when he finds another golden egg.Day after day he awakens to rush to the nest.He is becoming rich, and it all seems toogood to be true. Impatient with this morningritual of retrieving the golden egg, the farmerdecides to kill the goose and get all the eggsat once. But when he opens the goose, he findsit empty. There are no golden eggs and no wayto get them anymore.

Covey suggests, “[W]ithin this fable is anatural law, a principal—the basic definitionof effectiveness. Most people see the effective-ness from the golden egg paradigm: the moreyou produce…the more effective you are.But, as the story shows, true effectiveness isa function of two things: what is produced(the golden eggs) and the producing asset orcapacity to produce (the goose).”3

Covey warns, “If you adopt a pattern of lifethat focuses on golden eggs and neglects thegoose, you will soon be without the asset thatproduces the golden eggs. On the other hand,if you only take care of the goose with no aimtoward the golden eggs, you soon won’t havethe wherewithal to feed yourself or the goose.Effectiveness lies in the balance.…”4

Unfortunately, balance is often woefullylacking in the lives of solo practitioners.

The third and most important considera-tion is the reality of the lives of many solopractitioners. Although some no doubt work

R. J. Molligan is a solo practitioner specializing in tort and business litigation. She is also current co-chair of Soloand Small Firm Practice Committee for the Women Lawyers Association of Los Angeles and is a member of theAmerican Board of Trial Advocates.

Assessing the Risks and Rewards of a Solo Career

B y R . J . M o l l i g a n



Society, and the legal profession, are fix-ated on high-profile cases. Althoughthe infamous O. J. Simpson case in1994-95 riveted the nation like no other

previous case, high-profile and celebrity caseshave always had a prominent role in U.S. his-tory. Lawyers who find themselves in a casethat is generating intense media interest shouldproceed proactively on a number of fronts.

First, it is essential that the lawyer notlose focus. No matter how intense the mediaspotlight may be, the most important personin the courtroom is the client. Every deci-sion a lawyer makes should put the client’swelfare before the lawyer’s.

While I was defending actor Robert Blakein his homicide case, he told me that cameraswere like a drug—and no one is immune.He was correct. For whatever reason, lawyershave a tendency to change their countenanceand alter their values when cameras loom. Thisis dangerous.

Many of the reasons behind this phenom-enon begin with societal values. On somelevel, most human beings seek recognition andapproval—consciously and subconsciously.The boundaries of this need may extend nofurther than one’s immediate social group,such as a school, club, athletic team, or pro-fessional association. However, this desire forrecognition is reaching absurd heights in a cul-ture that seems to have gone beyond the goalof 15 minutes of fame to constant 24/7celebrity. Social media—including Facebook,YouTube, and other Web sites—are enablingeveryone to obtain some form of celebritystatus.

But lawyers have a unique role. When werepresent clients, we have their lives and wel-fare in our hands. What we do can save ordestroy someone’s life, financial welfare, rep-

utation, and freedom. It is paramount that thelawyer’s approach to the media constantlyand consistently places the client’s interestahead of the lawyer’s.

Trials are won in the courtroom. Thelawyer’s primary focus should be on 13 indi-viduals—the judge and the jury. If a triallawyer forgets this cardinal fact and wastes toomuch time on media strategy and its inevitablecomponent of self-promotion, a winnabletrial can easily be compromised. The bestpublic relations for a lawyer is a reputation forprofessionalism and success. Never violatecourt orders or the canons of professionalethics.

Media outlets are powerful. They have anenormous capacity to influence public percep-tion. The media’s goal is never justice. Ratings,revenue, and advertising dollars are the media’sonly concern. They will constantly look for theentertainment value in criminal and civil casesand exploit whatever furthers their profit.

It often becomes necessary for lawyers tocalculate how best to “spin” their client’s posi-tion. Before a lawyer can effectively do this, heor she has to understand not only the client’scase but also exactly who the client is. You can-not humanize someone that you don’t under-stand. Great effort must be made to studythe facts and evidence as well as the client’spersonal situation.

Developing a Media Strategy

Lawyers tend to be more effective at master-ing cold evidence than understanding human-ity. Law school does not train us in compassion,empathy, sympathy, and human emotion. Butthese are often the ingredients that affect mediastrategy the most.

In preparing a media strategy, first createa list with two columns—positive and nega-


Headline

B y l i n econtentedly in bunny slippers, more oftenthan not, financial stress is a big part of theequation. This can and does lead to depres-sion, which can lead to drug and alcoholabuse and even suicide.

The California Bar Journal states, “Althoughattorneys who practice in large firms also feelintense pressure to…produce heavy billablehours, they usually do not struggle with thesame kind of financial pressure a sole practi-tioner faces. ‘A sole practitioner has to be incharge of marketing, human resources, busi-ness development and information technol-ogy at the same time he has to be an attor-ney.…’ Faced with such pressures, somesuccumb to the temptation to self-medicate.”5

In 2003, the California Legislature estab-lished the Lawyer Assistance Program, whichis a confidential service of the California StateBar that helps judges and lawyers with sub-stance abuse and mental health concerns suchas anxiety and depression. The program’s2009 report states, “Consistent with a trendthat started in 2003, 60 percent of the attor-neys who entered the structured recoverycomponent during 2009 have a mental healthdiagnosis [primarily depression] either singu-larly or in combination with a substance abusediagnosis.”6 According to the report, nearlythree quarters of those who sought help fordepression and substance abuse were solopractitioners. In addition, the study foundthat more than four out of five are male.Significantly, 58 percent of the participantswere over the age of 50—a testament to thecumulative nature of stress.7

Life can be overwhelming for the solopractitioner who must be the rainmaker, theoffice administrator, the copy maker, the holepuncher, and the person who does all thelegal work. This may explain why only 25 per-cent of the legal population is self-employed.

Is going solo really worth it? For many solopractitioners, the answer is still yes. However,this response is more typical of lawyers whohave left big firms. Whatever your decision,remember to be good to the goose. ❖

1 U.S. BUREAU OF LABOR STATISTICS: LAWYERS, 2010-2011OCCUPATIONAL OUTLOOK HANDBOOK.2 STEPHEN COVEY, THE 7 HABITS OF HIGHLY EFFECTIVE PEOPLE:POWERFUL LESSONS IN PERSONAL CHANGE 54 (1989).3 Id.4 Id.5 Nancy McCarthy, Statistics tell story of stress, addiction inlives of lawyers, CAL. BAR J. (Nov. 2000), available athttp://archive.calbar.ca.gov/calbar/2cbj/00nov/page1-1.htm.6 LAWYER ASSISTANCE PROGRAM, 2009 ANNUAL REPORT 7(2009).7 Id.

Thomas A. Mesereau Jr. is a partner in the firm of Mesereau & Yu, LLP, inCentury City. Mesereau has represented numerous clients in high-profilecases in California and the Deep South. Among his clients was MichaelJackson, who was acquitted on all charges in a criminal trial in 2005.

Effectively Handling High-Profile andCelebrity Cases

B y T h o m a s A . M e s e r e a u J r .



tive. List the positive facts that favor the clientand then do the same for the negative ones.

Identify those human qualities that willbest place the client in a positive light in themedia. For example, the client may have arecord of public or charitable service thatmilitates against any civil or criminal charges.The client may have surmounted enormousobstacles in his or her personal life to obtaina valued position in society.

Further, you must identify precisely howthe media has or may target the client fornegative commentary. In a criminal case, thecharge itself provides fodder for damagingcommentary and innuendo. Prepare a com-pelling counterattack, in the form of a story.

Experts in marketing and advertising oftendiscuss emotional “hooks.” A hook can be lit-tle more than a theme that succinctly andpowerfully associates the client’s case withsomething desirable. It also can be a vehiclefor turning your opponent’s negative per-spective about your client into a positivemessage.

In the Michael Jackson case, the mediaconsensus was very much against Jacksonfrom the beginning. The public is often morerepelled by charges of child molestation thaneven murder. Because Jackson devoted anenormous portion of his life to charity forchildren, my colleagues and I decided to tryto turn the prosecution’s allegations into mis-interpretation and misguidance. We focusedon the fact that Jackson lacked a normal child-hood because of his talent and being forcedto work at an early age. While other childrenvisited the playground, Jackson was rehears-ing in the studio until three in the morning.He was signing contracts at the age of five. Wesought to use information to explain why anadult would construct a home like Neverlandand conduct his life with an emphasis onchildren.

Rather than run away from Jackson’s focuson children, we embraced it. We emphasized

his desire to champion the cause of childrenfrom violent and impoverished backgrounds.We discussed his history of helping childrenwith AIDS and degenerative diseases. We alsoportrayed his childlike tendencies as a key tohis music and choreography. What the pros-ecution portrayed as monstrous, we portrayedas harmless and beneficial.

The goal was to reduce the prosecution’spresentation to one, simple question: “Given

that Michael Jackson is a childlike personwith innocent explanations for his focus on theworld’s children, did his behavior ever crossthe line into sex?” If the prosecution could notprove that it did, acquittal was required. Thisis what happened.

In the O. J. Simpson case, the defenseeffectively emphasized Simpson’s charismatic,larger-than-life athletic and entertainmentcareer. He was portrayed as a target of dishon-est and racist police officers. Because the trialwas televised, the defense had a daily forumto emphasize these themes. They also tookadvantage of the racial tension and fears ofpolice misconduct that characterized LosAngeles at that time. A proper media strategywill take into account the social environmentsurrounding the case.

Celebrities are often targets of unscrupu-lous reporting. In defending a celebrity, alawyer may want to inquire into every circum-stance that suggests unfair targeting.

The savvy lawyer also develops contacts inall forms of media. If the lawyer has a repu-tation for integrity and professionalism, thelawyer is more likely to be treated favorably.If a lawyer feels that he or she should not com-ment on a particular issue, the lawyer shouldsay so. Don’t intentionally mislead media rep-resentatives. Once burned, they don’t forget.

Cameras in the Courtroom and

Gag Orders

In a high-profile case, the lawyer may need todecide whether or not to oppose television

cameras in the courtroom. In the Robert Blakecase, I favored them for the three-week pre-liminary hearing. The media’s treatment ofBlake had been horrific. I felt that I couldchange public opinion by attacking the pros-ecution’s case and witnesses in public. As aresult, CourtTV’s polling registered thebiggest change in public opinion that it hadever recorded. Before the hearing, the pollsshowed that more than 80 percent of thepublic thought Blake was guilty. Three weekslater, the same percentage viewed him asinnocent.

In the Michael Jackson case, I opposedhaving cameras in the courtroom. I felt thattelevision coverage would emphasize thecircuslike atmosphere that already existedaround the case. I did not want potentialwitnesses watching what other witnessessaid. I also felt that excluding cameras wouldsend a message to the trial judge and the pub-lic that the defense was serious, focused,and not trying to emphasize publicity at theexpense of the client.

Fashioning a media strategy also meansdetermining whether or not to seek a gagorder. Gag orders preclude lawyer commen-tary on the merits of a case. In the Blake case,I was against any type of gag order and felt thatopen commentary would allow me to levelwhat appeared to be an uneven playing field.It was clear that the prosecution and police hadrepeatedly poisoned the media with negativeinformation on Blake.

In the Jackson case, I favored a gag orderand wanted the case to be primarily tried inthe courtroom. Again, I felt this would senda message that Jackson’s defense was going tobe characterized by professionalism and focusrather than cheap theatrics.

Of course, trial lawyers also can speak tothe media through filed pleadings. As a result,the trial judge in the Jackson case forced sala-cious pleadings to be filed under seal.

How one spins the media varies from caseto case. However, lawyers should alwaysremember that the best media spin is effectivetrial lawyering in the courtroom. Americanjuries tend to be very independent and, whilenot perfect, they try to be fair.

Don’t get too carried away with the media.The media overwhelmingly predicted that O. J. Simpson, Robert Blake, Michael Jackson,and Casey Anthony would be convicted. Theywere wrong. The media also predicted anacquittal or hung jury in the Scott Petersoncase. He now sits on death row. ❖


The media overwhelmingly predicted thatO. J. Simpson, Robert Blake, MichaelJackson, and Casey Anthony would be con-victed. They were wrong.



Vetting a plaintiff’s case is a very challeng-ing task and should not be taken lightly.It is an ongoing process that does notend once a retainer agreement is signed.

The consequences of not thoroughly analyz-ing and evaluating a case can be severe. On theextreme, lawyers have been subject to State Barproceedings and malpractice actions due totheir failure to properly vet a case. Additionally,even with a detailed and methodical evalua-tion of a case, success cannot be guaranteed.However, the likelihood of success is signifi-cantly increased if a comprehensive and con-tinuing case analysis is undertaken.

In addition to analyzing the big-three fac-tors—liability, damages, and collectibility—there are myriad other factors that need to bereviewed. Some of these include competencyand resources to handle the case, potentialconflicts of interest, client and witness cred-ibility, access to evidence, choice of law andforum, statutes of limitations, and what typeof experts may be needed. Gathering theinformation necessary to evaluate these factorswill require multiple meetings with a prospec-tive client and witnesses, thorough documentcollection and examination, and meticulouslegal research and investigation.

Generally, the first contact with a prospec-tive client is by telephone or e-mail. This firstcontact should be used to gather basic infor-mation about the client and the alleged claimand to determine whether there are any relatedlegal proceedings currently pending. You needto gather enough information to determinewhether you would like to set up a face-to-facemeeting to explore the matter further and inmore detail or reject the matter.

The basic information about the prospec-tive client should include his or her name, res-idential and business addresses, telephonenumbers, e-mail addresses, Facebook or other

social media accounts,1 and the contact infor-mation for an individual who will always beable to reach the prospective client if he or shemoves or changes jobs. Although it may seemmundane, the identity of a contact personcan be very informative. Additionally, alwaysask the prospective client whom you should

thank for sending the client to you. This infor-mation will let you know, among other things,if the prospective client found you on theInternet or has spoken with (and perhapswas rejected by) another attorney. Alwayssend a nice note to any attorney or other per-son who recommended you as counsel,whether you accept the matter or not.

During your initial conversation, makesure to ask the prospective client not onlyabout the general nature of the issue, occur-rence, or dispute but also what he or shewould like you to do for him or her. It isimportant to find out right up front what theprospective client wants from you. Theprospective client may be seeking some typeof remedy that you are not able to assistwith—or, more importantly, a remedy notprovided for in the law. Further, make sure todetermine the operative facts of the matter, theimportant dates relating to the issue, who arethe main players, who are the relevant wit-nesses, what documents relate to the matter,and any other issues or facts that you or theprospective client feel are important.

This basic information should be adequateto determine whether to invite the prospec-tive client for an in-person meeting. If youdetermine that you cannot or will not acceptthe matter, it is critical that you send a writ-ten communication to the prospective clientadvising him or her that you are not going to

be taking the case. Make sure the letter advisesthe prospective client that you are rejecting thematter, that there may be statute of limitationsor other applicable claim issues, and that youare not giving the individual any legal adviceregarding these prospective statutes, claims,the merits of their case, or any other legalissues. Most plaintiff’s lawyers will also adviseprospective clients to seek other counsel assoon as possible if they are still interested inpursuing the matter.

It is also very prudent to have an in-per-son, face-to-face meeting with the prospectiveclient prior to any written agreement. Youare afforded not only the opportunity to beginthe process of establishing a trusting and pro-fessional relationship but also the occasion toassess the prospective client’s demeanor, cred-ibility, and his or her ability to articulate,recall, and explain the facts of the case. Casesare won and lost on the prospective client’sperformance during a deposition or on thestand at trial. Skilled plaintiff’s lawyers will usethis meeting to query the prospective clientand to see how he or she will hold up under

Beyond Liability, Damages, and Collectibility: The Importance of Vetting a Plaintiff’s Case

B y S t u a r t R . F r a e n k e l

The applicable jury instructions will give youa road map to the elements of the claim andthe proof that will be required.

Stuart R. Fraenkel is the cofounding partner of the Los Angeles office of Kreindler & Kreindler LLP. His practicefocuses on high-end aviation, auto, trucking, motorcycle, rail, maritime, premises, products liability, personal injuryand wrongful death actions, and insurance bad faith matters.

P R A C T I C E B A S I C S


mild cross-examination. However, before youbegin to grill the prospective client, makeclear what you are attempting to do so you donot upset him or her and lose the opportunityto represent a person with a valid claim.

Prior to signing an engagement letter, it isimportant to conduct detailed legal researchon all relevant issues. Researching the appli-cable law will help you determine what addi-tional details and information you will need,and more critically, will allow you to determinethe applicable deadlines. Are there any statuteof limitations issues? Is this a matter in whichtolling of the statute may apply? Does this mat-ter require the filing of an administrativeclaim or a Standard Form 95?2

Most lawyers will focus their legal researchon generic Lexis or Westlaw searches, appli-cable practice guides, and law review arti-cles. Seasoned trial lawyers, however, alwaysstart with the jury instructions. The applica-ble jury instructions will give you a road mapto the elements of the claim and the proof thatwill be required. It is also essential that youresearch the applicable defenses to the claim,choice of law issues, and forum issues. Oneof the more relevant issues will be whetherthere is jurisdiction over all potential parties.Also, consider in what court the matter willlikely be venued. Is this a matter that can beremoved to federal court? Are you licensed topractice in the specific federal district court ifthe matter is removed?

Prior to signing up any case, it is alsoessential to conduct a conflicts-of-interestanalysis. The California Rules of ProfessionalConduct are an excellent source to assist youin determining whether any such conflictsexist. For example, do you or another lawyerin your firm have a relationship with a party,witness, opposing counsel, or other entity,that must be disclosed? Have you, or anotherlawyer in your firm, ever represented theprospective defendant? Are you, or anotherlawyer in your firm, currently representinganother plaintiff in the same action?3 It ismuch better to determine up front whethersuch conflicts exist and whether an informedwritten disclosure can cure them.

Once you have gathered the preliminaryfacts and have conducted the initial legal andother research, you need to evaluate whetheryou have the competence to handle the mat-ter and the time, resources, and finances avail-able to properly prosecute the case. Performinglegal services competently means to applythe diligence, learning, skill, and mental,

emotional, and physical ability that is rea-sonably necessary for the performance of theservices that are required.4

In lay terms, do you have the background,training, and experience necessary to compe-tently handle the case? If you do not person-ally have the expertise, you must consultwith, associate with, or refer the matter toan attorney who you believe is competent, andwho has the additional time, resources, andfinances available to handle the case. Forexample, many complex products liabilitymatters require hundreds of thousands ofdollars to prosecute. Further, these cases areusually defended by large defense firms, whichwill staff the case with numerous lawyers,object to everything you attempt to do, buryyou with motion practice, and create otherresource-consuming tasks, all in the name ofzealously defending their clients. If you do nothave the expertise, money, and staffing toaggressively prosecute the case and handlethe barrage from the defense, it is clear thatyou should not handle the case by yourself.You will be doing a serious disservice to yourclient—and you may subject yourself to amalpractice claim if things go wrong.

Vetting a plaintiff ’s case is an ongoingprocess that must be handled with skill, com-petency, and care. If you need help, guid-ance, or advice, do not be bashful. Ask for it.Not only is it the right thing to do, there aremany very skilled practitioners who would bevery happy to assist you. ❖

1 Social media accounts can be a valuable source of infor-mation about a prospective client and witnesses, and canalso be very detrimental to the case, if information isshared in this quasi-public setting. Many plaintiff attorneysroutinely instruct their clients to cease and desist fromengaging in all social media until after the case resolves.Others advise their respective clients that they can continueon the sites but to be very careful about what they post.2 For example, although most personal injury or wrong-ful death matters are governed by a two-year statute of lim-itations, “In an action for injury or death against a healthcare provider based upon such person’s alleged professionalnegligence, the time for the commencement of action shallbe three years after the date of injury or one year after theplaintiff discovers, or through the use of reasonable dili-gence should have discovered, the injury, whichever occursfirst. In no event shall the time for commencement oflegal action exceed three years unless tolled for any of thefollowing: (1) upon proof of fraud, (2) intentional conceal-ment, or (3) the presence of a foreign body, which has notherapeutic or diagnostic purpose or effect, in the personof the injured person….” CODE CIV. PROC. §340.5.Additionally, claims against governmental entities havevarying filing deadlines and may require specific forms tobe filled out, such as a Standard Form 95 preceding aFederal Tort Claims Act matter.3 See RULES OF PROF’L CONDUCT R. 3-310, 3-320.4 See RULES OF PROF’L CONDUCT R. 3-110.


• Case Assessment

• Foodborne Illness Review

• Industry Standards of Performance

• Food Allergies, Burns and Foreign Objects

• Kitchen Accidents

• Health Dept. Inspection Analysis

• Food Quality and Spoilage

____________________________

35 Years Experience

Food Safety Inspections,Audits, Training, GMP's, HACCP,

SOP's, Restaurants,Manufacturers, Distributors,Supermarkets, Casinos and

Long Term Care.

EXPERT WITNESSSERVICE & CONSULTING

Jeff Nelken

www.Foodsafetycoach.com

818.703.7147

FOOD SAFETY


http://www.foodsafetycoach.com/


Fee-sharing arrangements among attorneyscan be a useful tool, providing incentivesfor attorneys in one discipline to refercases to attorneys in another. They allow

solo attorneys to associate in larger firms thatwill assist or handle cases needing the financialbacking or workforce made possible by a largefirm. These arrangements encourage attorneysto collaborate for the benefit of the client.However, fee-sharing arrangements must beproperly documented and disclosed, and attor-neys must be mindful of the rules that apply.

Attorneys may only share fees with otherattorneys. A fee-sharing arrangement betweena licensed attorney and a nonattorney is an ille-gal contract and a violation of Rule 320(A) ofthe California Rules of Professional Conduct.1

For example, an attorney is prohibited fromsplitting attorney’s fees with an investigator.2

The California Supreme Court has stated thatsuch a relationship between an attorney anda nonattorney would tend to encourage solic-itation and lead to the practice of law bylaypersons.3 (Interestingly, however, at leastone court held that an investigator may enforcean agreement with an attorney and collecthis or her share of the attorney’s fees.4)

Rule 2-200 of the Rules of ProfessionalConduct regulates fee-sharing arrangements.Its focus is on disclosure, and its purpose isto “protect the public and promote respect forand confidence in the legal profession.”5 Therule is intended to safeguard the client’s rightsand ensure the client knows how the fees arebeing charged.6 It addresses the concern thatthe total fee might be higher because the feeis divided between two attorneys. In fact, thetotal fee cannot be greater than the fee wouldhave been absent the fee-sharing agreement.7

To accomplish these goals, Rule 2-200(A)emphasizes that attorneys must disclose inwriting to the client the nature of the fee-shar-

ing arrangement.8 To the extent that there willbe a division of responsibility between thetwo attorneys, that also must be disclosed.9 Theclient then must provide written consent to thearrangement after receiving full disclosure.10

The best practice is to obtain the client’swritten consent to any fee-sharing arrange-ment at the outset. However, by law, writtenconsent need only be obtained after disclosureof the arrangement and prior to the divisionof the fees.11 In Mink v. Maccabee, the court ofappeal concluded that an attorney compliedwith the consent requirement by obtainingconsent after the conclusion of the represen-tation but before the fee was split.12 That said,an attorney still has an obligation to keep aclient “reasonably informed” of significantdevelopments in a case that could include thedevelopment of a fee-sharing agreement.13

Failure to comply with the requirements ofRule 2-200 renders the fee-sharing arrange-ment void and unenforceable.14 Consequently,an attorney who is brought in to work on a casein exchange for a split of the fee should ensurethat the client has provided written consent tothe arrangement. Without client consent, theattorney has no protection that he or she willreceive the negotiated amount of the fee.

If the attorney loses the negotiated percentof the fee because the written consent was not

obtained from the client, the attorney’s onlyrecourse is to obtain a quantum meruit recov-ery from the other attorney.15 The quantummeruit recovery is not considered a divisionof fees and is not subject to the disclosure

requirement of Rule 2-200.16 It involves noapportionment of the fee and is based solelyon the reasonable value of the attorney’s serv-ices. However, the quantum meruit recoverymay only be obtained from the other attorney;the client is not liable to pay any fees to thelater-retained attorney because there would beno enforceable agreement.17

The disclosure requirements of Rule 2-200 apply when the fee is split between twoattorneys. However, the rule does not apply ifthe attorneys are members of the same firm.Rule 2-200 expressly exempts a relationshipbetween attorneys who are partners, associates,or shareholders in the same firm.18 This excep-tion does not extend to contract attorneys orother attorneys who work in the same suite.19

One form of fee-sharing arrangement is astraight referral fee. Early ethics rules pro-hibited these types of fees and only allowed fora division of fees when there was a true divi-sion of services to be performed. However, themodern approach and current rules permitreferral fees regardless of whether the referringattorney performs work. The rationale is that

Jeffrey D. Wolf is a partner at Heimanson & Wolf, LLP in Los Angeles, where he tries complex injury cases and represents victims of securities and financial fraud, medical malpractice, and defective products.

To Share Fee-Splitting Arrangements Is Human, to Disclose Is Divine

B y J e f f r e y D . W o l f

Without compliance with the disclosure andconsent requirements, the newly associatedattorney will lose the benefit of the agreed-upon split of the fee.



Law school did not prepare you for someof the most daunting challenges you willface as a new attorney. Building yourpractice can be a terrifying experience,

especially if you are doing it solo or with asmall team. As you uncover these new chal-lenges, you will soon realize something youdidn’t learn in law school—how to run abusiness. Don’t panic or go running for thehills. Tools exist to keep your business run-ning efficiently while allowing you to focus on what you do best—practice law. The solu-tion? A practice management tool likeLexisNexis® Firm ManagerTM.

Designed specifically for independentattorneys, the LexisNexis Firm Managerapplication enables you to optimize yourpractice and also provide superior services toyour clients with all the features and bene-fits you need to run your practice smoothlyanywhere, anytime.

BE CONNECTED.. Renowned for busyschedules and hectic lifestyles, attorneys needto be connected no matter where they are.LexisNexis Firm Manager has addressed thisby making sure all your information is avail-able to you—anywhere, anytime. With a spe-cially designed user interface for your mobiledevices, you can access all your informationwhether you are in the office or on the go.With instant access to all your information,you no longer need to carry around piles ofpaper or worry whether you have everythingyou need.

Running late? No problem. Your associatesand staff can update and upload new docu-ments, contacts, and appointments intoLexisNexis Firm Manager, and you will stillhave instant access to them. LexisNexis is soconfident that you can rely on LexisNexisFirm Manager applications anywhere, any-time, that it provides a 99.9 percent applica-

tion availability guarantee (excluding plannedoutages). You will never find yourself strandedbecause you will always have your impor-tant records at your fingertips whether you aremobile or at your desk.

INCREASE PROFITS. While not every-one will readily admit it, one of the reasonsthat you work so hard is to receive a return onyour investment of time and energy. One of themost obvious benefits of your hard work isprofit, which you want to maximize wheneverand wherever you can. To do so, you mustwork efficiently and effectively and at thesame time continue to grow your business bymeeting your clients’ needs. LexisNexis FirmManager allows you to run your practice any-where on any mobile device, turning down-time into uptime. You can focus on the moreimportant parts of your business—practic-ing law and attracting new clients—and lesstime managing the business. You can maxi-mize your billable hours and make the mostof your time, every time, with LexisNexisFirm Manager.

STAY FOCUSED. Your days are busy, andsometimes you need help targeting the mostcritical tasks and appointments to handleeach day. LexisNexis Firm Manager offers avariety of tools and features to help keep youon track with centralized views and auto-matic updates concerning your calendar andother matters.

Fears of missing a filing deadline or acourt appearance are a thing of the past withtools like the Case and Matter Dashboard andthe Daily Digest e-mails. Don’t waste yourmost valuable asset—time—by spending it ondetermining your priorities or your next cru-cial step. Let LexisNexis Firm Manager help.

REDUCE RISK. No one understands riskthe way attorneys do. LexisNexis works sideby side every day with attorneys like you and


Headline

B y l i n ea referral is many times in a client’s best inter-est. It makes an attorney more likely to refera case to a more competent attorney or onewho is more capable of handling the largecosts required by larger cases.20 Consequently,the current rule is that a referring attorney doesnot need to accept any responsibility for areferred matter; he or she must only ensurecompliance with Rule 2-200.21

Fee-sharing arrangements among attor-neys are commonplace. Attorneys often asso-ciate with other counsel for many reasons. Anattorney might not have the time or theresources to handle a matter. Or a case mightinvolve an area of law that requires specificexpertise. In most instances, the fee-splittingarrangement works to the benefit of the attor-neys and to the client who receives betterlegal representation because of the associationof the new counsel. Both attorneys shouldensure compliance with Rule 2-200. However,as a practical matter, the newly associatedattorney (the one without the signed retaineragreement with the client) should be the mostconcerned about ensuring proper compli-ance. Without compliance with the disclosureand consent requirements, the newly associ-ated attorney will lose the benefit of theagreed-upon split of the fee. At best, the attorney will be left with a quantum meruitrecovery that is usually much less than theagreed-upon fee division. ❖

1 McIntosh v. Mills, 121 Cal. App. 4th 333, 343-46 (2004).2 Hildebrand v. State Bar, 18 Cal. 2d 816 (1941).3 Crawford v. State Bar, 54 Cal. 2d 659, 665 (1960).4 Lyons v. Swope, 154 Cal. App. 2d 598 (1957). Yet, if theinvestigator was found to be in pari delicto, or in equal fault,such as when he or she had knowledge of the illegality ofthe agreement and participated in the scheme, a courtwould likely refuse to enforce the agreement. McIntosh, 121Cal. App. 4th 333.5 Chambers v. Kay, 29 Cal. 4th 142, 157 (2002).6 Huskinson & Brown, LLP v. Wolf, 32 Cal. 4th 453(2004).7 CAL. R. OF PROF’L CONDUCT R. 2-200(A)(2).8 In a class action, the fee-splitting agreement must also bedisclosed to the court. CAL. R. CT. 3.769(b).9 CAL. R. OF PROF’L CONDUCT R. 3-500.10 CAL. R. OF PROF’L CONDUCT R. 2-200(A)(1).11 Mink v. Maccabee, 121 Cal. App. 4th 835, 838 (2004).12 Id.13 CAL. R. OF PROF’L CONDUCT R. 3-500; BUS. & PROF. CODE

§6068(m).14 Chambers v. Kay, 29 Cal. 4th 142, 156-61 (2002).15 Huskinson & Brown, LLP v. Wolf, 32 Cal. 4th 453, 459(2004).16 Id.17 Strong v. Beydoun, 166 Cal. App. 4th 1398, 1404 (2008).18 CAL. R. OF PROF’L CONDUCT R. 2-200(A).19 Los Angeles County Bar Ass’n, Prof’l Responsibility &Ethics Comm., Formal Op. No. 470.20 Moran v. Harris, 131 Cal. App. 3d 913, 921-22 (1982).21 Id.

Christopher T. Anderson, previously a managing partner of an eight-attorney full-service law firm, is now the product manager for theLexisNexis Firm Manager application.

Mitigating the Challenges of ManagingYour Practice

B y C h r i s t o p h e r T. A n d e r s o n





Headline

B y l i n eknows what you are up against. You want apractice management solution that works foryou from a company you can trust.

The LexisNexis Firm Manager applicationis your product. It provides the confidential-

ity that you and your clients need. Any datayou input into LexisNexis Firm Manager will be kept private and stored in a secureenvironment in SAS 70 Type II attested world-class data centers located exclusively in theUnited States.

LexisNexis Firm Manager never owns oraccesses your information, unlike some otherpractice management solutions. With exclu-sive features like a global conflict of interestsearch, LexisNexis Firm Manager has youcovered in more ways to help minimize yourrisk in every way. Have questions? Don’t beafraid to ask. Your security is the first prior-ity of LexisNexis Firm Manager.

Still not sure LexisNexis Firm Manager isright for you? Try it now free for 30 days athttp://www.myfirmmanager.com/try-it-now/and see the difference. ❖

You will soon realizesomething you didn’tlearn in law school—how to run a busi-ness. Don’t panic orgo running for thehills. Tools exist tokeep your businessrunning efficientlywhile allowing you tofocus on what you dobest—practice law.

Insurance policies help clients hedge againstrisks, including the risk of litigation. Whena client is sued for bodily injuries or prop-erty damage or other claims specifically

listed in a policy, such as malicious prosecu-tion, the client’s insurance policy can be thekey to a satisfactory resolution to the case. Thepolicy may require the insurer to pay for theclient’s defense in the case. It also may requirethe insurer to pay to settle the case and avoidthe potential that the client may be foundliable for a judgment in excess of policy lim-its. Additionally, the plaintiff will want toreview the policy to explore, among otherthings, the assets against which it might exe-cute a potential judgment. Therefore, whetheran attorney is on the plaintiff side or thedefense side, it is critical to know the basicsof what must be done to trigger coverageunder an insurance policy—that is, the stepsan insured must take to obligate an insur-ance company to fulfill its promises made inthe policy.

TENDERING A CLAIM. A “tender” of theclaim to the insurer commonly refers to a

request that an insurer provide a defense andindemnity under a policy. The first basic ruleof a tender is that it should comply with theprovisions of the insurance policy. Insurancepolicies are contracts. Before tendering theclaim, make sure that the parties named in thelawsuit are the same ones listed on the dec-larations page of the insurance policy as aninsured or fall within the “Who Is an Insured”provision of the policy. For instance, a lawsuitfiled against a business and its owner as anindividual may trigger coverage only for thebusiness if the business is the only namedinsured and the owner does not fall within thepolicy’s definition of who is an insured. Ifthere is any question regarding who is aninsured under the policy, provide informationto the carrier at the time of tender explainingwhy all named defendants should be cov-ered under the insurance policy.

Most policies include provisions thatinstruct the policyholder on how to make a claim. Read the policy carefully, and followthe steps for notifying the company aboutthe claim.

Michael L. Cohen and Heather M. McKeon, principals in Cohen McKeonLLP, represent policyholders in insurance-related matters and plaintiffsin other civil matters.

Triggering General Liability InsuranceCoverage for a Third-Party Claim

B y M i c h a e l L . C o h e n a n d H e a t h e r M . M c K e o n

AM

AN

E KAN

EKO



Submit a tender in writing to the insurancecompany and send it by certified mail orother means by which the date of delivery ofthe correspondence can be tracked and provenif necessary. The written request should includeidentification of the insured or insureds mak-ing the tender; an identification of the policynumber or numbers pursuant to which theclaim is being tendered; a request for a copy

of all relevant policies; a copy of the summons,complaint, and other pertinent pleadings orpapers relevant to the tender; an unambigu-ous request that the insurer accept the client’sdefense and indemnity in the action; a requestto be notified of the claim number andadjuster to whom the claim is assigned; and,if there might be a question as to coverage ofthe claim, an explanation of why the insurancecompany has a duty to defend and indemnifythe client in this particular case. In someinstances, notification to the carrier can bedone through the insured’s insurance agent orbroker. The insurance agent or broker canoften assist insureds in tendering the claim, orat a minimum can give instructions on howto tender a claim for the specific carrier.

COVERED RISKS. The risks covered by aninsurance policy—the circumstances underwhich an insurer will agree to accept a client’sdefense and/or indemnity in a particularaction—will vary depending on the type ofinsurance policy purchased by the client.

Assuming the client has a general liabilitypolicy, the grant of coverage in a typical lia-bility insurance policy reads something likethis: “We will pay sums that an insuredbecomes legally obligated to pay as damagesfor bodily injury or property damage arisingfrom an occurrence to which this policyapplies and which is covered by the policy.”An “occurrence” is typically defined as “anaccident including continuous or repeatedexposure to substantially the same generalharmful conditions during the policy period

resulting in bodily injury or property damage.”Thus, when requesting that the insurancecompany provide your client with a defense,highlighting the accidental nature of the harmis important. The policy also will containspecified exclusions, such as the exclusionfor intentional acts. For a claim to be covered,it must fall within the grant of coverage andnot be ruled out by any exclusion.

DUTY TO DEFEND. As part of triggeringinsurance coverage, the insured must under-stand the broad nature of the duty to defend,as distinguished from the duty to indemnify.The duty to defend is the insurance com-pany’s obligation to defend the insured fromclaims brought against the insured. If there isa potential for coverage at the beginning of thelawsuit, there is a duty to defend, even if ulti-mately there is no duty to indemnify—i.e., topay for the liability incurred by the insured,up to the policy limits—at the end of thelawsuit.1 Once tendered, an insurance com-pany must defend any claim that is potentiallycovered under the policy.2 In determiningwhether there is a duty to defend, “the insuredneed only show that the underlying claimmight fall within policy coverage; the insur-ance company must prove that it cannot.”3

The insurer also has an obligation todefend the entire lawsuit as long as there iseven one claim that is potentially covered—even if other, noncovered claims predomi-nate.4 Once you show that at least one claimis potentially covered, the duty to defendobligates an insurer to defend immediately.5

The courts have imposed a broad duty todefend on insurers based on public policyand not on the language of the insurancecontract.6 Hence, the basic axiom of third-party insurance law is that “the duty to defendis broader than the duty to indemnify.”7

In Gray v. Zurich Insurance Company, theCalifornia Supreme Court held that an insur-ance company is excused from its duty to

defend only “if the third party complaint canby no conceivable theory raise a single issuewhich could bring it within the policy cover-age.”8 Any doubt as to whether the facts estab-lish the existence of the defense duty must beresolved in the insured’s favor.9 The duty todefend extends to any claim in the complaintthat creates a potential for coverage, whetherit is true or not.10 The duty to defend attacheseven if the covered claims are frivolous.11

The insurer may not decline to defend a suitmerely because it is devoid of merit or becausethe allegations are false.12

An insurer must provide the policyholderwith a defense “as long as the complaint con-tains language creating the potential of liabil-ity under an insurance policy...even thoughit has independent knowledge of facts not inthe pleadings that establish that the claim isnot covered.”13 However, if an insured hasindependent facts or allegations that sup-port coverage that are not in the complaint,such as interrogatory answers or an amendedcomplaint, the insured may use these facts orallegations to trigger coverage. The carriershould be notified immediately upon receiptof any information that supports coverage, ifthe carrier initially refused to provide adefense.14

INTENTIONAL ACTS EXCLUSION. Themost common reason a carrier will deny aduty to defend is the intentional acts exclu-sion. Intentional acts are generally excludedfrom coverage in liability policies. Althoughsome policies provide coverage for specificintentional acts such as malicious prosecution,Insurance Code Section 533 prohibits indem-nity for intentional acts. Therefore, at most, aliability policy provides a defense for inten-tional acts but not indemnity.

Even if the complaint alleges only inten-tional acts, the claim still should be tenderedto the insurer. Since at least 1966—when the state supreme court decided Gray, theleading case on this principle—the general rulein California is that a defense must be providedeven for allegations of intentional conduct,because there is always the potential that theplaintiff will be able to establish only negligentacts.15 The court found coverage for theinsured’s alleged assault and battery becausethe insured claimed self-defense, which wouldnot be considered an intentional act. There-fore, when tendering a complaint against aclient in which intentional acts are alleged, youmust explain the negligent or accidentalaspects of the claim.


More information seldom results in a carrierwithdrawing a defense, but not providingenough information can result in a denial ofthe duty to defend.



California law generally finds conduct to beaccidental when the event leading to the injurywas unintended by the insured and a matter offortuity.16 Courts look to the nature of theinsured’s conduct, not to his or her state ofmind.17 As an example, a shopkeeper at clos-ing time might intentionally lock the storagevault but forget that he or she had sent anemployee inside to take inventory. Even thoughthe shopkeeper deliberately engaged the lock-ing mechanism, courts have said that the con-duct could be negligent and accidental withinthe meaning of the insurance policy because itpotentially arises from extrinsic causes, such asthe employee’s unexpected or chance distrac-tion, or the carelessness of the shopkeeper.18 Incontrast, there is no coverage for a deliberateact that is alleged to have been a sexualassault—such as grabbing someone’s wrist—when the insured contends only that his or hersubjective state of mind was not intentional.19

On occasion, an insured may be sued fornegligence—such as negligent hiring or neg-ligent failure to supervise—that is alleged tohave contributed to a co-insured’s intentionalact. Coverage of the negligence claims maydepend on whether the policy excludes cov-erage for intentional acts committed by “aninsured” as opposed to a policy that excludescoverage for intentional acts by “the insured.”Courts have held that “an” is the equivalentof “any,” and therefore excludes coverage forall insureds, while “the insured” refers only tothe intentional acts of a single insured anddoes not exclude coverage for negligence byadditional insureds.20 Coverage also maydepend on whether the policy contains a“separate insurance” clause providing, “This insurance applies separately to eachinsured.”21 Counsel should review the policyterms and relevant law as part of the tenderprocess and be prepared to address this issuewith the insurer.

DEFENSE UNDER A RESERVATION OF

RIGHTS AND CUMIS COUNSEL. One responseto a tender may be a reservation of rights. Thisresponse is common when there is a possibil-ity that the claimed act was intentional asopposed to accidental. Because an insurer’sfailure to defend can result in damages that arenot covered by the policy—for example, dam-ages arising from an intentional tort, or exem-plary damages—insurers may defend theirinsureds under a reservation of rights. A reser-vation of rights informs the insured that theinsurer will provide a defense, even though theinsurer questions whether there is actually

coverage for the loss. If the insurer provides adefense subject to a reservation of rights, thecarrier may revoke its defense if a court deter-mines that there is no coverage or if the poten-tially covered claims are no longer a part of thelawsuit against the insured.

If the insurer provides a defense without areservation of rights, the carrier may chooseand retain the attorney who will represent theinsured because there is no conflict of interest.But when an insurer reserves its rights on agiven issue and the outcome of that coverageissue can be controlled by counsel retained bythe insurer, a conflict of interest exists.22 Whenthat happens, the insurer must allow theinsured to select its own counsel pursuant tothe rules set forth in Civil Code Section 2860.Based on the decision in San Diego Navy FederalCredit Union v. Cumis Insurance Society, Inc.,23

an insured’s right to select its own counsel isreferred to as Cumis counsel.

Not every reservation of rights letter cre-ates a conflict of interest requiring Cumiscounsel.24 The cases require an actual conflictas opposed to a potential conflict before Cumiscounsel must be appointed.25 Civil CodeSection 2860(b) states that the existence ofallegations seeking punitive damages or dam-ages that exceed the policy limits are insuffi-cient grounds to create a Cumis counsel issue.The test for an insured’s right to Cumis coun-sel is whether the resolution of the part of theunderlying lawsuit would dictate the cover-age dispute between the insured and insurer.26

DUTY TO SETTLE AND INDEMNIFY. Thesecond duty that is imposed on a liabilityinsurer is the duty to settle. An insurer mustaccept a reasonable settlement offer within policy limits or it might be responsible for the entire judgment against its insured, eventhose amounts in excess of the policy limits. “The duty to settle is implied in law to pro-tect the insured from exposure to liability inexcess of coverage as a result of the insurer’sgamble—on which only the insured mightlose.”27 “California authorities establish that aninsurer who fails to accept a reasonable set-tlement offer within policy limits because itbelieves the policy does not provide coverageassumes the risk that it will be held liable forall damages resulting from such refusal,including damages in excess of applicablepolicy limits.”28

Finally, the insurer assumes the duty toindemnify an insured for any judgmentsentered against that insured for damages cov-ered under the policy. “Standard comprehen-

sive or commercial general liability insurancepolicies provide, in pertinent part, that theinsurer has a duty to indemnify the insuredfor those sums that the insured becomeslegally obligated to pay as damages for anycovered claim.”29

The more information that you can providea carrier—demonstrating why the claim iscovered, or if the insurer issues a reservationof rights letter, why Cumis counsel should beappointed—the better for your client. Youmay have to explain why the conduct could beconstrued as accidental as opposed to inten-tional to trigger coverage. And to get Cumiscounsel appointed, you may need to spell outthe conflict for the carrier. More informationseldom results in a carrier withdrawing adefense, but not providing enough informationcan result in a denial of the duty to defend. Thiswill leave your client to defend himself orherself in a lawsuit, which can be detrimentalboth financially and emotionally. ❖

1 Valentine v. Membrila Ins. Serv., Inc., 118 Cal. App. 4th462, 473 (2004).2 Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 29 (1995).3 Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287,300 (1993).4 Waller, 11 Cal. 4th at 29; Horace Mann Ins. Co. v.Barbara B., 4 Cal. 4th 1076, 1086 (1993); Buss v. SuperiorCourt, 16 Cal. 4th 35, 38-39 (1997).5 Buss, 16 Cal. 4th at 49 (holding that “[t]o defend mean-ingfully, the insurer must defend immediately”).6 Presley Homes, Inc. v. American States Ins. Co., 90 Cal.App. 4th 571, 576 (2001).7 Montrose, 6 Cal. 4th at 295.8 Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275 (1966).9 Montrose, 6 Cal. 4th at 299-300.10 Id. at 298.11 Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076,1086 (1993).12 Montrose, 6 Cal. 4th at 298.13 CNA Cas. of Calif. v. Seaboard Sur. Co., 176 Cal. App.3d 598, 606 (1986).14 See Marie Y. v. General Star Indem. Co., 110 Cal. App.4th 928, 957 (2003).15 Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 271-76 (1966).16 Lyons v. Fire Ins. Exch., 161 Cal. App. 4th 880 (2008).17 Id.18 Id.19 Id.20 See, e.g., Fire Ins. Exch. v. Altieri, 235 Cal. App. 3d 1352(1991).21 Minkler v. Safeco Ins. Co. of Am., 49 Cal. 4th 315(2010).22 CIV. CODE §2860(b); San Diego Navy Fed. Credit Unionv. Cumis Ins. Soc’y, Inc., 162 Cal. App. 3d 358, 364(1984).23 Cumis, 162 Cal. App. 3d at 364.24 Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App.4th 999, 1006-07 (1998).25 Id. at 1007.26 Cumis, 162 Cal. App. 3d at 364.27 Murphy v. Allstate Ins. Co., 17 Cal. 3d 937, 941 (1976).28 Johansen v. California State Auto. Ass’n Inter-Ins. Bureau,15 Cal. 3d 9, 12 (1975).29 Buss v. Superior Court, 16 Cal. 4th 35, 45 (1997).



It is no secret that today we can use theInternet to find just about anything weneed. And in the legal industry, it is alsothe medium of choice in finding expert

witnesses. Besides seeking referrals from thosewhom you know, going online is the newfirst step in an attorney’s search.

More often than not, a search engine willfirst generate Web sites for either expert wit-ness directories or expert witness referralservices. Both can produce a positive out-come to your search for an expert, and bothcan offer their experts potential exposure thatleads to work with attorneys—especially in thecompetitive age of the Internet. Practitioners,however, should be aware of the structural dif-ferences between the two.

ONLINE DIRECTORIES. Experts whochoose to submit their qualifications pub-licly often pay to do so via online expert wit-ness directories. Directories are practicalavenues for attorneys who presumably havetargeted exactly what they need to researchand also have the time to scroll through typ-ically large databanks of experts’ informationto meet that need. Besides finding solo experts,you also may come across multi-expert con-sulting firms and related service providers.These same parties, as well as law firms, oftenadvertise on these popular sites.

Well-categorized directories offer advancedsearches via keywords, name of expert, topicof expertise, or geographic area. Once a poten-tial match is made, connecting with the expertis relatively simple. Directories are gearedtoward making experts’ information readilyavailable. Many directories offer downloadablecurricula vitae, links to experts’ Web sites,and direct contact information.

REFERRAL SERVICES. The other viablesolution is an expert witness referral service.

Perhaps an attorney is short on time or helpor simply needs to explore several optionsbefore making a decision. Referral teams canassist in this process. They are your initialpoint of contact and remain a dedicated, serv-ice-oriented liaison throughout your case.While these groups may vary in their levels ofservice, a reputable firm will provide you—its client—with an objective, quality-con-trolled selection of experts. The decision toretain an expert is ultimately yours. However,premier referral firms will practice due dili-gence, so screening and qualifying experts isstandard procedure.

No two experts’ resumes are identical. Areferral group can offer cross-disciplined,cohesive presentations of handpicked candi-dates who can provide precisely what isneeded. The diverse backgrounds of prospec-tive experts enable attorneys to compareangles, strategize, and determine the expertbest suited to shape their case. Moreover,referral services have an inside track to expertswho can recommend others. If the perfectexpert for your case does not yet exist in areferral pool, the group’s recruiters can use anentire support system of professionals at theirfingertips. First-rate firms will even do addi-tional recruiting for free.

When teaming with a referral group, par-ticularly regarding complex cases, provide asmany elements of your case as possible.Information is key. Issues of confidentialitycould limit the information that you divulge,of course, but a trustworthy firm will checkfor conflicts and pair its product with yourneeds as seamlessly and accurately as possi-ble. Like any organization with a solid foun-dation of client service, a referral firm willstrive to constantly keep the communicationlines open in every case.

You will notice common componentsamong the Web sites for referral services.They typically include a disciplines index, a keyword search, an online request for an expert, accolades, and experts’ blogs.Discipline indexes and keyword searchingmay lead you to experts’ bios, credentials,and locations served. An online request willprompt you for your contact information, aswell as the type of expertise needed or casebackground. (Competitive firms generallyadvertise quick response times to inquiries andpromise to adhere to your deadlines, althoughhigh-quality products and services should be the compelling factors.) Visit the testimo-nials section on these sites. Occasionally, youwill read praise from the referral firm’s ownexperts in addition to satisfied attorneys.

Today, expert directories and referral serv-ices alike maintain an online media edge.Blogging is becoming increasingly prevalenton these Web sites as well as on the experts’own sites. Experts may gain exposure andmarket their skills to attorneys through thisinteractive vehicle.

In addition to information for attorneys,referral sites often reserve a section for expertsor professionals seeking to apply or register asexperts. Potential experts may learn the ben-efits of joining a referral service and whateach registration process entails.

Both online expert witness directories andexpert witness referral services share a com-mon goal—to help attorneys select the bestexperts for their cases. Finding the perfectexpert online is no easy task, but it is not asdaunting as it seems. Armed with a few strate-gic tips, your search can be as many layersthick as you need: useful databanks or a com-prehensive service to help you every step ofthe way. ❖

Ashley Miller is an expert witness recruiter at ForensisGroup, Inc., a referral service that has been providing expert witnesses and consultants to the nation’s top law firms for 20 years. ForensisGroup also assists attor-neys with defining the type of expert needed for simple and complex matters. The company specializes in recruit-ing, matching, and delivering difficult-to-find experts to serve on unique cases.

Finding the Best Expert Online: A Direct Examinationof Directories and Referral Services

B y A s h l e y M i l l e r





http://www.forensisgroup.com


HEADLINE

B y l i n e


Expert witnesses are more important thanever. Most complicated cases do not set-tle until after the experts have issuedcomprehensive reports or have been

deposed. This trend will accelerate becauseeducation has not kept pace with the contin-uing increase in knowledge, causing an ever-widening gap between what the average per-son knows and what specialists know.

The selection of an expert should beginwith consideration of the candidates’ resumes. • Select someone who was previously success-ful as a witness and is enthusiastic about doingit again. Serving as a witness is an unusual andrigorous job. Many people aren’t suited to itsrequirements. The first time we do anything,we’re not likely to be good at it. The same istrue when serving as an expert witness.• Select experts who have the premier creden-tial in their field. Avoid the nearly meaning-less credentials requiring little more than anapplication fee and a basic test that most peo-ple pass. Also troubling are credentials givenby using a point system to credit unrelatedexperience. In contrast, most noteworthy cre-dentials require difficult tests, lengthy expe-rience requirements, and peer evaluation.• Insist that the expert’s firm perform a com-prehensive conflict check. This is particularlytrue of large expert referral firms that havemultiple service offerings. Learning of a con-flict after you have committed yourself can becostly. A conflict could even disqualify you.

After qualifying under these screens, meetwith (or have an extended phone discussionwith) the candidate. This meeting should pre-view how the person will act in the expert role.• Be careful when your potential expert wit-ness agrees with your position too quickly.As a better alternative, the expert shouldunderstand the opposing party’s position andthoughtfully explain why it is incorrect. An

expert who is too agreeable may either becometoo agreeable with an opponent who providesadditional information or may not have thecharacter strength to tell you the weaknessesin your position. You are better off with anexpert who can reach a conclusion thought-fully and hold to it under pressure.• Test an expert’s ability to provide short anddirect answers. Experts who regularly providelonger-than-necessary answers will get them-selves and your case into trouble.• Select witnesses who can explain their craftto the jury. Most experts primarily work withhighly educated, motivated peers who havethe training necessary for their specializedfield. These people are not on the jury. Beforeemploying experts, test their ability to explaindifficult concepts quickly in simple terms.• Identify people with energy and enthusiasm.Experts should be quick to offer an illustration,chart, or analogy to enliven technical explana-tions. Don’t presume a candidate will becomeengaging and charismatic with your coaching.• Gain a general understanding of themethodology that your proposed expert willuse. Does it appeal to common sense? Inquirewhether the methodology will meet the stan-dards required of the Daubert/Kumho cases infederal court or the applicable state standard,which in California is Kelly/Frye.• Investigate the proposed expert’s writings.In some fields, being published regularly indi-cates accepted expertise. But prior publicationsalso are a minefield of potentially conflictingpositions or nuances that your opponent canexploit. Most jurors will quickly grasp theimportance of a contradictory position.However, since they do not live in the aca-demic world, they will probably not care if theexpert is publishing. If you have two other-wise suitable experts, the safest course is toavoid the well-published one.

IMPROVING YOUR EXPERT’S CHANCE

FOR SUCCESS.. You and your expert shouldoutline the analytical procedures to be per-formed and create a related schedule. Reachagreement about how much time it willrequire, and ensure this works with otherdeadlines. Although seemingly basic, sched-uling can be a problem because your oppo-nent sometimes has key records that yourexpert needs. Regardless of the reason for thedelay, experts cannot produce good workinstantaneously after receiving information.Anticipate discovery battles for critical recordsand build this into your schedule.

Make sure your expert understands howhis or her opinions fit into the overall casearguments. Communicate the time line for keyevents and their consequences. In complex lit-igation, the expert often must address multi-ple key dates. To avoid reworking conclu-sions and flawed analyses, ensure that yourexpert uses data pertinent to those dates.

Well before your expert reaches final con-clusions, meet to discuss how the work isprogressing, including the good news and thenot-so-good news. The expert should explain:• Favorable and unfavorable facts.• Available testing methods to address poten-tial challenges.• False or weak assumptions, or other inad-equate work.• Opinions upon which reasonable expertsmay differ.• Possible “long shots” worth investigating.

Your opponent will usually discredit anexpert who does not adhere to the profession’sanalytical rigor. Insist that your expert supportconclusions with analysis, testing, and inspec-tion. Descriptions beginning with phrasessuch as “I saw,” “I heard,” and “I examined”provide the strongest support for the conclu-sions. Judges and juries find summaries begin-

David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years’ experience performing forensic account-ing, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.

How to Succeed with Expert Witnesses

B y D a v i d N o l t e





ning with “in my opinion” or “based on myexperience” less persuasive than more positivephrases such as “my analysis indicates,” “thedata supports,” or “the market tells us.”

Discuss whether there is government dataor studies to corroborate your position. Thisinformation can be highly credible to a judgeor jury. Learned treatises or academic publi-cations are not as useful. They are as numer-ous as the experts who prepare them. If youfind a treatise to support your argument, youcan probably find another by an equally qual-ified author that conflicts with your position.

If you have several experts on the samecase, set up a joint meeting to discuss theirmethodology and tentative conclusions. Manylitigators avoid this because the meeting is sub-ject to discovery. While disclosure is a risk, abigger problem is having your experts impeachone another with inconsistent testimony.

Avoid the temptation to ask experts toaccept additional responsibility in areas inwhich they are not truly qualified. Expertswho are discredited in these areas will losecredibility in the areas of their true expertise.

Your expert’s work is not complete until it is supported with charts, graphs, or other

visually appealing exhibits. A superior, expe-rienced trial expert should be able to preparegood graphics with little assistance. Expertswho prepare their own graphics provide sev-eral advantages:• The work is usually less costly since theexpert already is familiar with the entire effort.• The graphics will be more faithful to yourexpert’s methodology.• The expert will be more convincing due topersonal involvement with their creation.

Help your expert avoid accidentally sup-porting the opponent’s case. The fact that youdidn’t hire an expert to address a certain sub-ject doesn’t prevent the opponent from askingquestions about that subject. Forewarn yourexpert about surprise attacks, and preparehim or her with related potential questions.

The importance of all these issues requiresthat you begin employment of experts early.Your litigation plan should allow time 1) toidentify the right expert, 2) for the expert toperform sufficient analysis—as a confiden-tial consultant—so you will know whether theconsultant’s testimony will be helpful, and 3) for you to alter your plan based on the con-sultant’s preliminary conclusions.

TAKING AN EFFECTIVE DEPOSITION OF

YOUR OPPONENT’S EXPERT. Before thedeposition of an opponent’s expert begins,determine whether you plan to use the dep-osition for persuading your opponent to set-tle or to prepare for trial. Each strategy willinvolve tradeoffs. For example, if you aggres-sively cross-examine during the deposition,you may get exact admissions and a betterchance of settlement. However, you will alsoshow your attacks, allowing your opponent tocreate responses between the deposition andtrial. This is particularly troubling with experts,who presumably are required to modify theiropinions as new information is learned.

On the other hand, if you just ask for theexpert’s opinion and the basis for the opinion,your opponents are more likely to remainunaware of their vulnerabilities. However,you will also lose opportunities to obtainvaluable concessions.

Your preparation for your opponent’s deposition should include a session with yourown expert, who should be able to provideyou with years’ worth of insights and under-standing. Your expert can educate you aboutweaknesses and flaws in the opposing posi-

Distinguished career in the practice of real estate law in California since 1968; Former Vice President-Legal Affairs at

the California Association of Realtors; UCLA Law Review; Order of the Coif; Adjunct Professor of Law; Real Estate

Broker; President, Beverly Hills Bar Association; Lecturer, CEB (Real Estate Broker Practice); California Mortgage

Association; Graduate Realtors Institute, 2011 Spirit of CEB Award winner.

LAWRENCE H. JACOBSON AB, UCLA 1964, JD, UCLA School of Law 1967

Law Offices: 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 90212

Tel (310) 271-0747 | Fax (310) 271-0757 | E-mail [email protected] | www.lawrencejacobson.com

There are Expert Witnessesand there are

Expert Witnesses

LAWRENCE H. JACOBSON’s record of success as an expert witness in a widerange of real estate and business related court trials is without peer. Clients willtell you why. His expertise encompasses:

• Standard of Care • Real Estate and Mortgage Brokerage• Custom & Usage Real Estate Transactions/Documents• Lawyer Malpractice (in real estate and business transactions)

EffectiveEffective


http://www.lawrencejacobson.com

tion as well as the jargon necessary to under-stand what is being said. Your expert alsomay know information about your opposingexpert that you would otherwise have diffi-culty learning.

Since the deposition is your time to learn,ask plenty of questions that you would neveruse at trial. Most examiners make insufficientuse of open-ended questions that force the wit-ness to explain what work was done and therationale for the conclusions. Questions thatstart with who, what, where, when, why, andhow will generate information that you would

never get with questions that demand a yes-or-no response, which should be limited toareas in which you already know or wish toclarify the expert’s conclusion and rationale.

Add questions that usually challengeexpert witnesses. Make extensive use of sim-ple follow-up questions such as “How do youknow that?” or “Why is that true?” Also askquestions that elicit limitations in or con-cerns with the opposing expert’s work.Examples include:• What assumptions did you make?• What is the factual basis for this opinion,

and how do the facts lead to your conclusion?• What information have you relied on thatwas provided by counsel or your client?• What concerns do you have regarding yourconclusions?• Under what circumstances would you usea different methodology?• What alternative hypotheses could explainwhat you observed?• What other work would you have liked toperform?

Use hypothetical questions to move anexpert witness off of the established scriptthat opposing counsel is presenting.Hypothetical questions can be used to turn anopposing expert into your witness when adifferent set of facts is presented. Hypotheticalquestions also can support the positions ofyour other witnesses.

Reverse psychology is sometimes the bestway to isolate a witness. Test the limits ofhow far the opposing expert will go to sup-port the untenable. Discredit an extreme wit-ness by taunting him or her into taking posi-tions that most will see as silly.

Most depositions spend too much time onthe expert’s background. Unless the expert istruly inexperienced in the relevant field(s),many background questions can be coveredby asking the expert whether his or herresume or curriculum vitae is accurate.However, spend time looking for areas wherethe current testimony contradicts or isimpeached by:• The witness’s writings. Has he or she writ-ten or testified previously with conclusionsinconsistent with those taken in your case?• Authoritative works in the field, includingtexts that the witness uses as references or inclasses taught by the witness. Get the expertto acknowledge which works are authoritative.• The witness’s testimony in other matters.Some of this can be obtained through data-bases that provide such information for a fee.• On whose behalf the expert usually testifies.An impartial expert can ply his or her tradeon behalf of both plaintiffs and defendants.

These same questions also can help yourown expert prepare. Review these issues withyour expert before the deposition, and allowsufficient time for your expert to performwhatever additional work is cost-justifiable toremedy the problems you uncover.

Experts often make a huge difference, butserving as an expert witness is a difficult job.Selecting an experienced witness will makethat challenging task much easier. ❖


Do You Have A Case Involving Dogs?

— EVALUATIONS, CONSULTATION, BITE INVESTIGATIONS —

Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected]

www.jillkessler.com

Specializing inRottweilers and Pit Bulls

• aggression • behaviors • training

• breeding• rescue • protocols

• temperament• cruelty• hoarding


http://www.jillkessler.com

http://www.sandiego.edu/law/academics/llm/graduate_tax_program/

For new litigators, the importance ofknowing everything about “paper” dis-covery—particularly document requestsand interrogatories—will be apparent

during their first days on the job. Counselmust learn how to propound them andrespond to them. New attorneys also need tomaster the practices and procedures sur-rounding disputed responses. By keeping afew general guidelines in mind and avoidingcommon mistakes, practitioners can use dis-covery efficiently and effectively.

Discovery was not always an integral partof American litigation. It was not knownunder the English common law—the parentof our system—but was invented in the UnitedStates in the mid-twentieth century. The aspi-ration of those who created discovery wasthat disclosure of information relevant toclaims and defenses would lead to more andearlier settlements and dispositions moreclosely based on the true merits of the dispute.Experienced practitioners know that discov-ery instead has become, in many cases, asource of protracted and expensive preliminarybattles in litigation, often without significantadvancement of the original goals.

Well thought out, focused, reasonable dis-covery still can achieve the benefits originallyenvisioned by its founders. Discovery can dothis while avoiding the pitfalls of needlessdelay and expense.

Discovery Plan

Before the first document requests, interroga-tories, and requests for admissions are drafted,prepare a written discovery plan. This shouldpreliminarily identify the kinds of documen-tary evidence that will be requested, the per-sons who will be deposed, and any subjectsthat can be explored effectively with interroga-tories and requests for admissions.

Preparing the plan requires a beginningunderstanding of what proof will be neededto sustain claims and defenses. Some good triallawyers create a first draft of their closingargument at the beginning of case preparation,modifying it as the case develops. This prac-tice forces early and continuing considera-tion of exactly what must be put before ajudge or jury to win—or in mediation, toobtain a favorable settlement.

The statutory scope of discovery is verybroad. A discovery request is permissible if theinquiry is reasonably calculated to lead to thediscovery of admissible evidence. The smartlawyer, though, wants information that is rel-evant and reliably revelatory about case weak-nesses. The lawyer wants to get that informa-tion with minimal sifting through documentsthat “might lead to the discovery of admissi-ble evidence” but are not really helpful. So thegoal is to frame focused discovery requests thatwill yield the most useful information with theleast amount of extraneous material.

Do consider the cost of the discovery inrelation to the stakes in the litigation. Whenmaking a discovery plan, selectivity is espe-cially important if the amount in controversyis limited. Conversely, if the stakes are high,broad and deep discovery may be warranted.

Document Requests

Discovery usually begins with requests fordocument production. Writings created atthe time of the disputed events are the bestsource of reliable evidence. They show thepositions of the parties before either begins toshade its position to enhance its arguments ina lawsuit. Remember that counsel prepareresponses to interrogatories and requests foradmissions. Moreover, practitioners usuallyprepare their clients for deposition testimony.By contrast, contemporaneous documents

are free of the taint of litigation.Do focus the requests. Don’t ask for “any

and all documents that refer or relate in any wayto [insert subject].” Code of Civil ProcedureSection 2031.030(c)(1) requires the party mak-ing the request to designate the informationbeing sought “by specifically describing eachindividual item or by reasonably particulariz-ing each category.” “Any and all” requests usu-ally do not comply with this requirement.Further, the requesting party does not need “anyand all documents,” and gathering them maybe burdensome. Adversaries will seize on thephrase as evidence of overbreadth, and judgesand referees are likely to agree.

For example, if lost profits are at issue, atypical document demand might ask for “anyand all documents relating to plaintiff’s finan-cial performance for the last eight years.”Arguably, this request calls for every invoice,purchase order, check, statement of account,bank statement, and every accounting entryin every journal and ledger. Production of allthese items could be time-consuming, expen-sive, and most likely unnecessary for therequesting party’s purpose. On the other hand,annual profit and loss statements, balancesheets, and cash flow statements—audited ifavailable—for the relevant years probablywill suffice. Consider making a request for“documents sufficient to accurately showplaintiff’s revenues and profits for the [yearsinserted], including profit and loss statements,balance sheets, and cash flow statements.”

Additional relevant documents identifiedas discovery proceeds may be requested withnew targeted requests. Have the plaintiff’saccounts payable become an issue in profitsanalysis? Send a supplemental request, or aska question in deposition.

Some lawyers defend the “any and all doc-uments that refer or relate” formula as neces-


Justice Richard C. Neal (ret.) and Barbara Reeves Neal are arbitrators and mediators with JAMS in Los Angeles.Their practices focus on commercial cases and employment, class action, and construction disputes.

Dos and Don’ts of Paper Discovery

B y J u s t i c e R i c h a r d C . N e a l ( r e t . ) a n d B a r b a r a R e e v e s N e a l



sary to ensure that the opposing lawyer will not omit possibly responsive materialsfrom production. But remember, discoveryis an honor system. A conscientious lawyer responding to a request for “documents rea-sonably sufficient to accurately show” willproduce the relevant documents. Conversely,a lawyer abusing his or her discovery dutiesand withholding relevant material likely willnot be forestalled by the breadth of an “anyand all” documents request.

Do keep the number of requests reasonable.Your adversary will be less likely to resist, anda court, referee, or arbitrator will be less likelyto view the request as burdensome.

Do not preface your request with extensivedefinitions. Use succinct, plain English andrely on its clarity if a dispute arises.

Responses

Responding to document requests typically isa two-step process. First, you tender a writ-ten response confirming that the requesteddocuments will be produced and/or statingobjections to some categories. Second, youdeliver the requested documents (usuallycopies rather than originals) to the other side.

Do become familiar with the statutoryrequirements for a Statement of Compliancein Full or in Part and a Statement of Inabilityto Comply, found in Code of Civil ProcedureSections 2031.220 and 2031.230. Theseaffirm what documents will be produced andexplain what will not be produced and why.

Do not preface written responses with arecitation of every possible objection. Un-fortunately, this practice has become an indus-try standard, and written responses to docu-ment requests routinely begin with a half toa full page of objections. This refrain of boil-erplate objections hardly ever accomplishesany useful purpose. Not only that, it also killstrees—and creates the appearance that theresponding party is obstructionist.

Assert only those objections that are realand material. If the document requested trulyis an attorney-client communication, by allmeans object. Ditto if there is some otherclear-cut ground. But don’t dilute the force ofmaterial objections by burying them in a seaof marginal ones.

Do not object on the grounds that therequest is a burden before thoughtful consid-eration of the validity of this objection.Quantify any burden in a way that can be per-suasively presented to the court or referee inthe form of admissible evidence.

Do not use the phrase “discovery is con-tinuing” as part of your response. It has nolegal meaning or purpose nor any effect otherthan to create an impression of evasion. Thelegal obligation of the responding party is toproduce the requested documents. A respond-ing party is entitled, and indeed required, tosupplement its responses if additional docu-ments are later discovered. The obligation toproduce is not avoided or ameliorated byreciting that “discovery is continuing.”

Do comply with the statutory command ofCode of Civil Procedure Section 2031.280(a).Documents must be produced in the orderthat “they are kept in the usual course ofbusiness” or “labeled to correspond with thecategories” in the document request.

Interrogatories and Requests for

Admissions

Interrogatories and requests for admissionsshould be carefully, and sparingly, used. Theseforms of discovery are generated by the hun-dreds or thousands in civil litigations, yet theresponses only infrequently find their waybefore the trier of fact. The opposing lawyergenerally crafts the responses to provide theminimum useful information that will passmuster if challenged by a motion to compel.

Interrogatories may be useful in obtaininginformation that usually is not controver-sial—for example, the names and contactinformation for persons with knowledge of rel-evant events. Contention interrogatories canbe helpful in ferreting out the particulars of theopponent’s claims. Standard form interroga-tories developed by the California JudicialCouncil use this format.

Do, though, bear in mind that interroga-tories can have a negative effect. An adversarymay retaliate by serving as many, or twice asmany, as he or she received, and respondingto interrogatories is hard, tedious, dull work.Further, as one of our mentors once observed,forcing your opponent to do that work mayhave the unintended consequence of enhanc-ing his or her case preparation.

In addition, the results of motions to com-pel responses to interrogatories are frequentlyunsatisfactory. The court can force an adversaryto provide an answer, or supplemental answer,but has little control over how useful or gen-uinely responsive the answer is. Counsel canexpend large amounts of time, effort, andmoney to force supplemental interrogatoryresponses that are ultimately of little value.

The approach for responses is the same as

for responding to document requests. Avoidlitanies of objections and assert only those thathave merit and are material. Provide frank,substantive answers. Forceful, direct, accuratearticulation of favorable information helpsthe responding party’s case, while obfuscationdoes not. Also, the rules require disclosure ofunfavorable information. Sooner or later, theother side usually learns the “bad” information.

Discovery Disputes

If you find yourself in a dispute over discov-ery, your first step should be an attempt toresolve the dispute informally through discus-sion with opposing counsel. This is the notionunderlying requirements for meeting andconferring.

Do attempt to meet face-to-face withopposing counsel. Be prepared to earnestlydiscuss ways in which objections can beresolved and necessary information producedwithout undue burden. For example, if oneside objects to a wide-ranging request phrasedas “all documents related to,” a genuine meet-and-confer process should be the opportunityto narrow that request by agreeing to identifythe subset of useful documents.

Do not rely on meet-and-confer letters.The heart of the meet-and-confer process is“confer.” An exchange of argumentative posi-tion letters without conferring is unproduc-tive. An exchange of noninflammatory let-ters can be useful, though, as a first step inmeeting and conferring.

However, do not send copies of these let-ters to judges, referees, or arbitrators. If thejudge, referee, or arbitrator is available, do con-sider requesting an informal conference aboutthe dispute before filing a full-fledged motion.

If motions are unavoidable, present the dis-pute in an efficient, compressed, and stream-lined fashion. Judges, referees, and arbitratorsfrequently will require a joint statement inwhich the parties are admonished to includeeverything needed to resolve the dispute.

In preparing briefs and joint statementsin discovery disputes, do not use templates toreplicate identical arguments multiple times fora series of similar disputed requests. Do grouptogether all requests raising the same issue. Setforth one request as an example, and list par-enthetically the numbers of the other requeststhat are similar or raise the same issue. Then,make the arguments once. The judge, referee,or arbitrator will be powerfully grateful, andmoreover, more likely to carefully considerand thoughtfully dispose of the arguments. ❖



Today, most corporate information origi-nates electronically, making electronicdiscovery an integral part of discovery invirtually every case. Using e-discovery

entails more than just an understanding of thetechnology involved. Attorneys must developstrategies for successfully obtaining and pro-ducing electronically stored information (ESI).

START EARLY. The ESI discovery obliga-tions of counsel and clients start earlier thanmost counsel expect. Therefore, as soon as acivil litigation matter comes to the desk ofcounsel, they should hear the ESI discoveryclock ticking. Two items should be attendedto immediately: litigation hold and prepara-tion for the early meeting of counsel.

Litigation hold is the process whereby aparty contacts the custodians of its informa-tion and acts to preserve discoverable infor-mation.1 There is no specific statute thatimposes this duty. Rather, it is the conse-quence of other duties owed. If parties donot preserve relevant evidence, the entirelegal system will be undermined. Therefore,courts hold that every party has a duty topreserve relevant evidence if litigation or gov-ernment investigation is reasonably antici-pated.2 In California, the destruction of rele-vant information once the duty to preserveattaches is a sanctionable discovery abuse.3

The primary problem in litigation-holdpractice is that it is painfully unclear to par-ties when litigation investigations are “rea-sonably imminent” and preservation shouldcommence. For example, in some cases, courtshave found that obligations should havestarted years before parties actually began thepreservation process.4 Litigation hold must beof particular concern to counsel, as litigationhold duties run first to counsel and onlythereafter to clients.5 Attorneys must con-sider litigation hold obligations and counsel

their clients specifically, especially with regardto ESI records.6 Therefore, as soon as a newmatter is received, counsel should ask pointedquestions about litigation hold proceduresand, particularly, whether those procedures areadequate to preserve relevant ESI. If no pro-cedures have been set in place, or if the pro-cedures need to be more robust, this shouldbe the first order of business. A litigation holdshould be made in writing, as failure to do socan constitute “gross negligence,” support-ing an imposition of sanctions.7

In addition to fulfilling litigation-holdtasks immediately, counsel should also beginpreparing for the early meeting of counseland then the case management conference(CMC). The CMC must be held no later than120 days out from the service of the com-plaint. California Rule of Court 3.724 requiresthat counsel meet no later than 30 calendardays prior to the case management conferenceto discuss discovery-related items, includingeight specifically related to ESI discovery. Thismeans that counsel must talk with their clientsand meet and confer with opposing counselto address discovery, and specifically ESI dis-covery, within the first 90 days after service ofthe complaint to complete the early meeting30 days before the CMC.

Failure to adequately prepare—and cometo the early meeting prepared—can be con-strued as failure to meet and confer in goodfaith, which is sanctionable as discovery abuse.To prepare adequately, courts advise thatcounsel speak personally to “key players,”core custodians including individuals whoare involved in the subject matter and createESI documents as well as IT custodians whokeep data such as e-mail servers, humanresources databases, and accounting data-bases on behalf of the company.8 They shouldbe questioned about what data they produce

in general, what data they have that is relevant,where it is located, and whether there is any-one else who should be contacted.

If the other side comes to the early meet-ing of counsel unprepared to meet and confermeaningfully on these topics, be sure to filewith the court a written account of this failureprior to the case management conference.Data difficulties do not improve with time,and failure to address the points made in Rule3.724 early on will increase the already highcosts of discovery. If you wish to show thejudge that the other side is not taking the dis-covery seriously or is willfully refusing to meetits discovery obligations, there is no time likethe case management conference to start show-ing the court the other side’s true colors andhighlighting your client’s diligence.9

E-DISCOVERY REQUIRES SUBSTANTIAL

COOPERATION AMONG COUNSEL. Courtsunderstand that the costs of ESI discoveryincrease exponentially when counsel will notcooperate. Indeed, courts appreciate whencounsel bring their A game to the meet-and-confer table and are helpful in solving e-dis-covery problems. However, this requires sub-stantial preparation. Counsel must know whatESI exists and how it can be made available.They must know at least the basics on how tosearch and cull the ESI sources to find relevantmaterials and also how long that process takes.They must be prepared to bring IT personnelinto the conversation who can address andresolve systems and data issues. ESI discoveryis an area of the law that rewards proactivelawyering and creative problem solving.

On the flip side, ESI discovery is an areain which courts have little patience with coun-sel and clients who refuse to work through thedata issues in an efficient manner. Courts havean impressive panoply of pressures that theycan bring to bear on attorneys who appear to


Diane E. Barry is an attorney and the director of Discovery Strategy and Management, International Litigation Services.James L. Smith is a retired Orange County Superior Court judge who currently serves as a full-time arbitrator, discovery referee, and mediator with JAMS.

California E-Discovery Basics: Tips for the E-Competent Litigator

B y D i a n e E . B a r r y a n d J u d g e J a m e s L . S m i t h ( r e t . )



be hiding the ball or otherwise holding up thediscovery.10 Don’t be an easy target.11

FORMAT MATTERS. The California Codeof Civil Procedure permits requesting partiesto specify the format for producing ESI.12

Requesting parties should ignore the “may”language. Always specify a format becausethere is one that will invariably work better foryour client and legal team. Specification of areasonable format has a strategic advantage. Ifyou specify a format and the oppositionobjects, the ensuing discussion before a courtor discovery referee usually begins with ask-ing why the responding party cannot giveyou what you asked for. If the other party isthe first to specify a format and you object, thediscussion will probably begin with question-ing why you cannot accept what the other sideis offering. By specifying a format, you oftenreceive what you ask for. If there are problems,you set the starting point for negotiations.

What format should you ask for? Knowwhere the data will go after you obtain it. Forexample, if it will go into an in-house electronicdocument review platform, then TIFFs and aselection of metadata in platform-specific loadfile format are fine. If the legal team will use asophisticated analysis tool that requires accessto the original native ESI, ask for that. Your tech-nology group or litigation support vendorshould write a specification for how the datashould be delivered. Use the spec as AttachmentA to your inspection demand. Better yet, pro-vide it at the early meeting of counsel, andalso attach it to the formal inspection demand.

Responding parties should be mindful that,if the other side asks for a load file for a basic,commercially available litigation support data-base, the cost of objection is probably greaterthan the cost to make the load file. However,if counsel asks for a product that imposessubstantial extra costs, a “reasonably usable for-mat” is not a bad standard to fall back on.Courts interpreting that phrase look to theusefulness of the data format being offered.Does the proposed format degrade the search-ability of the ESI? Consider e-mails: In theiroriginal format, e-mails are fully searchable andcan be sorted by field. However, if the produc-ing party provides only a TIFF of the e-mail,it cannot be searched or sorted. The TIFF is nota reasonably usable format for the e-mail ESI.But if the proposed format offers TIFFs andsome fielded searchable data (such as author,subject, or body text), even if it is not the pre-cise format preferred by the requesting party,it is probably reasonably usable.13

The Code of Civil Procedure states that aproducing party need not produce the same ESItwice.14 ESI is generally less expensive to dealwith than the same information in paper for-mat. State in your discovery demand that if thesame information is available in both paper andESI format, you want ESI rather than paper.

NEGOTIATE COST-SHARING/COST-SHIFT-

ING OPTIONS EARLY. The Code of CivilProcedure authorizes the producing party toseek a protective order when ESI is “not reason-ably accessible due to undue burden or cost.”15

If discovery is ordered, the court can requiresharing of costs.16 The Code of Civil Procedurealso provides that when data must be “trans-lated,” the requesting party must pay reason-able costs. The cost shifting of translation is different from federal practice, where the defaultposition is that the producing party pays.

Under Code of Civil Procedure Section2031.280(d)(2), a court considering “undueburden or costs” will look to the cost of theproduction, the probable value of the ESI inquestion, and the overall amount at stake. Isthe cost undue given the amount in contro-versy and the usefulness of the target ESI? Costalone does not prove undue burden.

It isn’t clear what processes are referencedby the term “translation.” In Toshiba v. SuperiorCourt,17 the court stated that the backup tapesin question required translation but did notexplain what translation meant. As a guideline,consider that producing ordinary ESI itemsfrom active data sources is probably not con-sidered “translation.” However, if accessing thedata requires specialized IT work, such asbringing it back from compressed archivingor writing scripts to search a database, it prob-ably qualifies as translation.

The value of these rules is that you canidentify potentially expensive items from thediscovery process early when only minimalcosts have been expended for them. The dutyto preserve this material remains, but youcan avoid spending costs to collect, process,review, analyze, produce, and present it unlessthe other side pays part or all of the remain-ing production costs, or a court orders you toproduce. Done properly, the only costs borne100 percent by your client would be forpreservation. This kind of early exclusion cansave 70 percent or more of the discovery coststhat might otherwise be paid for these items.

Identify items for cost sharing/shifting at theearly meeting of counsel, identify them as ex-cluded items in any written discovery response,consider bringing a motion for a protective

order (or make the other side bring a motionto compel), and document your cost claimswith items such as written vendor estimates. ❖

1 See Doppes v. Bentley Motors, 2009 Cal. App. LEXIS 904,at *28-31 (2009) (describing late and inadequate litigationhold effort regarding corporate e-mails).2 See William T. Thompson Co. v. Nutrition Corp., 593 F.Supp. 1443, 1445 (C.D. Cal. 1983); Cedars-Sinai Med. Ctr.v. Superior Court, 18 Cal. 4th 1, 12 (1998).3 New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th1403, 1429-30, 86 Cal. Rptr. 3d 457, 477-78 (2008)(Destruction of evidence after litigation commences ordestruction in anticipation of discovery request would besanctionable abuses of discovery under the Code of CivilProcedure.); see Dodge, Warren, & Peters Ins. Servs., Inc.v. Riley, 105 Cal. App. 4th 1414 (2003) (upholding injunc-tion requiring party to submit computers to preservationby neutral expert).4 See, e.g., Pension Comm. of the Univ. of Montreal PensionPlan v. Banc of America, 685 F. Supp. 2d 456 (S.D. N.Y. 2010).5 Green v. McClendon, 262 F.R.D. 284, 2009 U.S. Dist.LEXIS 71860 (S.D. N.Y. 2009); Qualcomm Inc. v. BroadcomCorp., 05 Civ. 1958-B, 2008 U.S. Dist. LEXIS 911 (S.D. Cal.Jan. 7, 2008) vacated in part on other grounds, 2008 U.S. Dist. LEXIS 16897; In re NTL, Inc. Sec. Litig., 244 F.R.D.179, 197-98 (S.D. N.Y. 2007) (quoting Chan v. Triple 8Palace, Inc., 03 Civ. 6048, 2005 WL 1925579, at *6 (S.D.N.Y. 2005)); see also Fayemi v. Hambrecht & Quist, Inc.,174 F.R.D. 319, 326 (S.D. N.Y. 1997).6 Green v. McClendon, 262 F.R.D. 284, 2009 U.S. Dist.LEXIS 71860 (S.D. N.Y. 2009); Qualcomm Inc., 2008U.S. Dist. LEXIS 911; In re NTL, Inc. Sec. Litig., 244F.R.D. at 197-98; see also Fayemi, 174 F.R.D. at 326.7 Pension Comm. of the Univ. of Montreal Pension Plan,2010 U.S. Dist. LEXIS 1839; In re Napster Inc. CopyrightLitig, 462 F. Supp. 2d 1060, 1070 (N.D. Cal. 2006); Doev. Norwalk Cmty. Coll., 248 F.R.D 372 (D. Conn. 2007)(Determining defendant’s failure to suspend destruction ofelectronic documents at any time after receiving notifica-tion of litigation did not satisfy good faith requirement ofFederal Rule of Civil Procedure 37(f) and was at leastgrossly negligent, if not reckless, thereby justifying adverseinference and costs.). See also National Ass’n of RadiationSurvivors v. Turnage, 115 F.R.D. 543 (9th Cir. 1987).8 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218(S.D. N.Y. 2003) (Counsel should make every attempt tospeak personally with information source personnel.).9 See id.; Zubulake v. UBS Warburg LLC, 229 F.R.D. 422(S.D. N.Y. 2004).10 See, e.g., Chen v. Dougherty, 2009 WL 1938961 (W.D.Wash. 2009) (Court refused a costs bill, stating that the leadattorney’s skills were so deficient in the area of ESI discov-ery that she could not command the fee she had requested.).11 See Sedona Conference Cooperation Proclamation, available at http://www.thesedonaconference.org/content/tsc_cooperation_proclamation.12 CODE CIV. PROC. §2031.030(a)(2).13 See, e.g., DE Techs., Inc. v. Dell, Inc., 2007 U.S. Dist.LEXIS 2769 (W.D. Va. 2007) (TIFFs alone are not a rea-sonably usable format where the original media was ESI;TIFFs plus data in a load file is reasonably usable.).14 CODE CIV. PROC. §2031.280(d)(2).15 CODE CIV. PROC. §2031.060(c); CODE CIV. PROC.§2031.280(e); Toshiba v. Superior Court, 124 Cal. App. 4th762 (6th Dist. 2004) (requesting party pays for “translated”data).16 The new Code of Civil Procedure Section 2031.060(e)on “not reasonably accessible” is based on Federal Rule ofCivil Procedure 26(b)(2)(B).17 Toshiba v. Superior Court, 124 Cal. App. 4th 762 (6thDist. 2004).



Lawyers have a reputation for exertingcaution when it comes to embracingadvances in technology. So it was with thefax machine. So it was with e-mail. So it

was with the Internet. And so it is now withcloud computing.

But once they understand the benefits andallay their fears, lawyers not only embracenew technology, they run with it. So it waswith these earlier technologies, and so, again,it is with cloud computing.

Over the last few years, legal profession-als have begun using the cloud for every-thing from practice management to clientrelations. Even so, one area of legal practicestands out as particularly well suited to thecloud—electronic discovery and the handlingof electronically stored information (ESI).

In electronic discovery, the cloud offersdistinct advantages: power, flexibility, mobil-ity, economy of use, and ease of deployment.In fact, in a 2010 report on electronic discov-ery, the technology research firm Gartner,Inc. concluded that the future of electronic dis-covery technology is in the cloud. A cloud-based e-discovery platform, Gartner said,“offers benefits that on-premises software orapplications cannot.”

WHY THE CLOUD FOR E-DISCOVERY?

As a new lawyer, you are entering a professionthat is increasingly unbounded. The busi-nesses you represent—even small and mid-sized ones—will be global in their opera-tions. The cases you take will require you tointerface and collaborate with people all overthe country, if not the world.

And everything you do will be driven bydata. Whereas lawyers once pushed paper,they now deal with electronic information—and lots of it. Even relatively run-of-the-millcases can involve megabytes of electronicdocuments and e-mails stored on any num-

ber of servers in any variety of locations. Bigcases can reach into terabytes.

At a time when the information thatlawyers deal with is electronic, the cloud isuniquely well suited to the task.

Consider the following:

• When a single case can involve multiple ter-abytes of data, cloud computing offers virtu-ally unlimited power and scalability.

• As enterprises increasingly become global,cloud computing enables the loading andprocessing of data from locations anywhere inthe world.

• When multiple languages threaten Babel-like confusion, cloud computing simplifiessorting and searching.

• When legal teams are likely to be spreadacross multiple venues, cloud computingenables them to collaborate seamlessly.

• As litigation costs spiral out of control,cloud computing eliminates capital and main-tenance costs, cuts staff requirements, andenhances efficiency.

• When time is of the essence, cloud comput-ing allows rapid deployment, faster process-ing, and quicker review.

Whereas the early development of e-dis-covery technology was centered in locallyinstalled appliances, the future is in the cloud.And that future is already here.

WHAT IS CLOUD COMPUTING? Think ofcloud computing as a method of harnessingcomputer power, as much or as little as youneed for the task at hand—available when youneed it and out of sight when you don’t. Using

nothing more than a laptop or iPad, you cantap into virtually limitless computing power.

Vivek Kundra, named by President Obamaas the nation’s first chief information officer,compares cloud computing to the public watersupply. Where once each household had tofind and maintain its own water supply, wenow turn on a tap when we need water andturn it off when we’re done. By drawing on thepublic supply, our lives are greatly simplified.

Kundra led the charge to move the federalgovernment’s IT infrastructure to the cloud.“By using cloud services, the federal govern-ment will gain access to powerful technologyresources faster and at lower costs,” he wrote.“This frees us to focus on mission-criticaltasks instead of purchasing, configuring, andmaintaining redundant infrastructure.”

Just as the public-works utility delivers a vir-tually unlimited supply of water to your kitchentap, cloud computing delivers virtually unlim-ited power to your local computer. Instead ofpipes and reservoirs, cloud computing usesthe plumbing of the Internet to tap into files andapplications on remote computers.


HEADLINE

B y l i n e


Robert J. Ambrogi is a lawyer and the director of communications for Catalyst Repository Systems, Inc., a pioneer in providing cloud-based document repositories for e-discovery and other complex legal matters.

Cloud-Based Electronic Discovery Is in Your Future

B y R o b e r t J . A m b r o g i

You use your computer to access data andapplications located elsewhere on computerswith far more firepower and capacity thanyour paltry PC could ever provide.




THE DIGITAL HUB IN THE CLOUD. WhenApple CEO Steve Jobs unveiled the com-pany’s iCloud service in June 2011, hedescribed a world in which our data is increas-ingly disembodied from our devices. Thesolution, Jobs said, is “moving the digital hubinto the cloud.”

Jobs’s notion of a digital hub in the cloudis an apt description for cloud computing. Inreality, of course, the data is not “in the cloud.”It is stored on a server somewhere and perhapson multiple servers. Rather than access dataand applications directly on your computer,you use your computer to access data andapplications located elsewhere on comput-ers with far more firepower and capacity thanyour paltry PC could ever provide.

The National Institute of Standards andTechnology (NIST) says that cloud computingis defined by five essential characteristics:

• On-demand self-service. The user can accessthe system unilaterally whenever needed.

• Broad network access. The system is avail-able over the Internet and accessed throughstandard computing devices such as laptops,mobile phones, and PDAs.

• Resource pooling. The provider pools itscomputing resources to serve multiple con-sumers, with different physical and virtualresources dynamically assigned and reas-signed according to demand.

• Rapid elasticity. Capabilities can be rapidlyand elastically provisioned to quickly scale upand rapidly released to quickly scale down.

• Measured service. Cloud systems automat-ically control and optimize resource use, providing system monitoring, control, andtransparency.

Cloud-computing services are deliveredaccording to various models, NIST says. Theone most familiar and applicable to e-discov-ery is Software as a Service. With SaaS, theconsumer uses applications that run on theprovider’s cloud infrastructure.

ADVANTAGES OF THE CLOUD FOR E-

DISCOVERY. So, what does all this have to dowith e-discovery? Consider the following.Your client, a multinational corporation,recently concluded an intricate and intercon-nected series of major commercial transactionsin Eastern Europe, Europe, and Asia. Now itis under investigation by the U.S. Departmentof Justice for possible violations of the ForeignCorrupt Practices Act. The DOJ has demandedthat your client produce all documents relatedto those transactions—and that it producethem within 90 days.

Complying with the request will requirecollection and review of some 500 gigabtyesof ESI, which translates to more than 30 mil-lion pages. The documents reside in the cus-tody of many individuals in various divisionsand subdivisions on computers in far-flunglocations—including Russia, Italy, andChina—and are written in at least a dozen different languages.

You face the daunting task of collecting,translating, indexing, searching, reviewing,and producing the documents, with little timeto do it. How does a cloud-based e-discoveryprovider help? Here are some of the ways:

• Zero to 60 in a flash. Appliance-based sys-tems require purchase, installation, and setup,consuming precious time. With a cloud-basedapplication, no time is wasted getting up tospeed, because a computer and Web browserare all you need.

• Universal access. When your case is far-flung, your team may be also. Lead counselmay be in New York. One review team mightbe in the Midwest. Foreign-language review-ers might work in Hong Kong. Whereveryour team is working, at whatever hour, thecloud provides easy access to the system andthe data.

• Unbridled power. When you face a massivedocument review, sluggish computers don’tcut it. With a cloud-based system, you tap intoan expandable grid of high-capacity process-ing power. With an appliance-based system,you can hit the wall, but in the cloud, thereare no walls.

• Capability of handling multiple languages.Cloud systems often have specialized tools andapplications not available in locally installedsystems. Some cloud platforms offer sophis-ticated multilanguage capabilities, translat-ing documents on the fly and searching acrossmultiple languages.

• Elasticity to meet demand. Cloud platformsare built using high-capacity storage deviceswith massive processing power. If your proj-ect suddenly scales up, you need not rush outto buy more hardware. The system scales tothe demand.

• Reliability and security. With cloud-basedplatforms, you have no maintenance worries.Hardware systems become redundant.Software is always up to date. And electronicdiscovery companies are zealous about system security.

• Lower costs. Cloud-based systems are themost economical because they do not requireup-front investment for hardware and soft-

ware, nor additional IT staff. Training is sim-plified, and project time is reduced.

Lower costs translate to an added plus forlawyers in smaller firms. With a cloud-basedsystem, small firms stand on a level playingfield with their larger firm counterparts.

CAUTIONS REGARDING CLOUD COM-

PUTING. Before you conclude that cloudcomputing is all pie in the sky, a new lawyershould consider certain cautions when select-ing a cloud provider.

One is ethics. Lawyers are duty bound toensure the confidentiality and security ofclient documents and communications. Ahandful of state ethics panels have examinedwhether it is ethical for lawyers to store theirclients’ documents in the cloud and use cloud-based applications. Every panel so far hasconcluded that cloud computing is on solidethical ground.

At the same time, these panels urge lawyersto exercise common sense in selecting a cloudprovider. In particular, they urge lawyers tothoroughly vet a provider’s security and sta-bility. That means you should look for aprovider with an established reputation, notonly for the strength of its security but also forthe viability of its business. An establishedprovider can supply you with detailed infor-mation regarding its system security and itspractices regarding backup and disaster recov-ery. Once you are satisfied, be sure to enterinto an express, written nondisclosure agree-ment with the provider.

In addition to ethical considerations, theremay be legal issues. One involves the locationof the data. A U.S.-based company shouldfully understand the legal implications beforeusing a provider whose servers are outside theUnited States. The converse is equally true: Aforeign company may not want to use a U.S.provider unless the provider also has non-U.S.data centers.

Of course, lawyers’ use of any technologyshould be guided by caution and commonsense. In e-discovery, however, the choice oftechnology is increasingly driven by the sheermagnitude of the task at hand. As megabytesbecome gigabytes and then terabytes, as datais stored in multiple locations in multipleformats and in multiple languages, as the taskof document review becomes more complexand the consequences of mistakes becomemore severe, one form of technology standsout as having the power, capability, and flex-ibility to handle the task. In e-discovery, thefuture is in the cloud. ❖



New attorneys may find, as they pro-ceed in their practices, an aspect of thelaw of unintended consequences thatI call “law by accident.” Even a brief

immersion in the legal system will revealthat rules and doctrines are established moreby accident than by design. As practitionershandle the daily tasks of moving cases for-ward, they should consider the bigger pictureof how to use a case to actually establishnew law or advance a legal rule or theory thatwill benefit the long-term interests of theirclients.

Practitioners generally focus on a case inlight of a client’s short-term interests in win-ning or defending the case. The client and theattorneys share one goal: reaching a success-ful conclusion in the case in front of them. Theresolution of the case may involve the emer-gence of an important legal issue that ulti-mately must be settled on appeal—and thatappeal leads to a legal precedent. However, thelitigants actually do not anticipate or planthis result. It is, in many ways, an accident.The new rule is established essentially byhappenstance.

But the development of new law does nothave to occur by chance. Rules that have longawaited a bright-line revision or a reversalcontinue to be unchallenged because litigantsfail to look ahead, determine their long-termgoals, and plan accordingly.

The short-term approach is understand-able. After all, the job of attorneys is to resolvesuits in their clients’ favor. Still, the disadvan-tages to purely short-term thinking cannot beoverlooked. For one, thinking only about thetask in front of you can result in an issuebeing inadequately presented to the court.Counsel may present a possible legal defensewith potentially broad implications in a cur-sory fashion, resulting in the court rejecting

the argument. Or an important argument orcase is completely left out of a motion or briefto the court, resulting in the issue beingwaived. Further, the possible ramificationsof a legal challenge to the current state of thelaw are not fully examined, resulting in a

missed opportunity or an argument that back-fires. The result of failing to plan ahead isthat infrequent and promising chances tochange the law may be lost—sometimes per-manently.

Some laws continue to sit on the bookswhen clearly they are likely to be reversed ifchallenged. Alternatively, other laws changemore as a result of chance or luck, withoutmuch planning. This is not an effective wayto create a set of rules and laws favorable toyour clients.

Thinking Ahead

The best players in the game of chess arethose who can visualize several moves ahead,anticipate their opponent’s moves, andrespond accordingly. Similarly, the best andmost effective attorneys are those who thinkseveral steps ahead to anticipate what theiropponent and the courts are likely to do andact accordingly.

Instead of waiting for issues to arise,attorneys (and their clients) should consider

1) what they want the law to be, 2) the like-lihood of achieving the change they seek, and3) the steps they must take to realize theirgoal.

Deciding what you want the law to be isgenerally the easy part. Attorneys should

review recent litigation in their area of prac-tice to determine emerging issues as well asthose that seem to be most frequently arisingin appeals. In addition, they should prioritizewhat issues are most important.

Attorneys should next determine thechance of success in establishing a new legalprecedent or reversing unfavorable law. It isimpossible to make an absolute determinationof one’s chance of success. However, thereare often signals as to whether particular legalissues are good candidates for challenge:

• There is no binding law on your issue. If anissue is not already resolved in your favor, thismay be the ripest target, since you are free toargue what the law should be. This situationis even more appealing if courts in other juris-dictions with generally persuasive opinionshave recently ruled in favor of the theory youare advancing.

• The courts are split on your issue. Appellatecourts at the state and federal levels are fre-quently divided. Sometimes all circuit courtsbut one have ruled in a favorable manner on


Headline

B y l i n e

Advancing the Long-Term Strategy of Changing the Law

B y B l a i r S c h l e c t e r

When you are presented with a new case,don’t think merely about its resolution. Thinkabout whether your client’s case raises sig-nificant issues beyond its particular facts.

Blair Schlecter is a partner with Hurrell Cantrall, LLP in Los Angeles. His practice focuses on municipal liabilityand appellate law, including the defense of claims against government officials and entities.




Headline

S E C T I O N

an issue—and the one holdout is the court inwhich your case is venued. You may be ableto argue that recent changes in the law inother jurisdictions support a change in the lawin your court as well.

• The U.S. Supreme Court has recently issueda decision that applies a new rule favorable toyour client, but the parameters of the rule havenot yet been fully defined by the lower courts.Practitioners can use the new authority toargue that an issue should be decided in theirfavor.

The next step is determining how to seeka change in the law. Once again, thinkingahead about long-term goals is key. Whenyou are presented with a new case, don’tthink merely about its resolution. Think aboutwhether your client’s case raises significantissues beyond its particular facts. Discernwhether the case implicates a law you seek toaffect. Develop a strategy at the beginning ofthe case for how to address these cutting-edge issues.

Careful Planning

You should revisit your goals at regular inter-vals throughout the case. Is there a legal claimor defense you should preserve at the begin-ning of the case for a dispositive motion, trial,or appeal? Is there a fact you need that wouldhelp obtain the change you seek? Is there atrial exhibit or testimony you should use topreserve an argument for later presentation onappeal? Be prepared to challenge the law in aclear and convincing fashion and to use theappropriate authority to do so.

Of course, every strategic legal plan facespitfalls. Pursuing a long-term strategy mayresult in an adverse ruling to your client.Additionally, an ill-advised argument couldresult in unnecessary costs and legal proceed-ings. As you pursue the long-term goals, nomatter how much they may ultimately bene-fit your client, you always need to consider theclient’s short-term interests as well.

With careful planning, you can avoid anapproach to law that merely addresses one fileat a time and never considers how the lawshould be changed. A long-term approachhas the potential of establishing favorablelegal precedent for future cases. It will also saveyour current clients money by avoiding theneed for making claims or asserting defensesto issues that are now already established inyour clients’ favor.

In short, think several steps ahead, just likea chess player. You will be glad you did. ❖

The last question has been asked, the lastobjection has been made, and the witnesshas given the last answer. Finally, thedeposition has concluded. One of the

lawyers asks, “The usual stipulations?” For anew lawyer unfamiliar with this custom, thisquestion can spark anxiety and self-doubt.With a little preparation, however, the lawyercan respond with confidence.

Deposition stipulations are often enteredinto among counsel at the conclusion of adeposition in a case pending in state court.These stipulations may be used to change therules imposed by the Discovery Act concern-ing the handling of the transcript.1

In truth, there is no such thing as the“usual stipulations.” Most of the time, they areentered into orally and transcribed by thecourt reporter as part of the record. Theychange the duties that the law would other-wise impose on the court reporter, thelawyers, and the deponent regarding the han-dling of the deposition transcript. If there isa video or audio recording of the deposition,

the stipulations may also address the handlingof the recordings.

As an initial matter, lawyers typically stip-ulate that the court reporter is relieved of hisor her duties under the Code of Civil Pro-cedure, which is often referred to simply as“the Code.” Some lawyers do not agree tothis broad stipulation, which relieves thereporter of the duty to transcribe the recordaccurately. A narrower stipulation can be pro-posed that relieves the court reporter of his orher duties under the Code concerning thecustody of the transcript and notification toother parties of any changes to the transcript.

The purpose of this stipulation is simplyto eliminate the default application of thestatute to the handling of the deposition tran-script.2 The default rules concern the amountof time a deponent is given to make anychanges to the transcript, the means by whichthe transcript is reviewed and approved orrejected by the deponent, and who has cus-tody of the transcript following its preparation.If counsel stipulate to relieve the court reporter

Applying the “Usual Stipulations” at aDeposition

B y H e a t h e r E . S t e r n


Heather E. Stern is a partner with the law firm Kralik & Jacobs LLP inPasadena. She specializes in real estate and business litigation.

AM

AN

E KAN

EKO



of his or her duties, counsel should also agreeon the alternative obligations.

Review of the Transcript

By statute, deponents have 30 days to reviewthe written transcript of the deposition, makeany changes, and approve or refuse to approvethe transcript. The statutory 30-day periodbegins when the court reporter provides therequired written notice to the deponent andall parties attending the deposition that thetranscript is available for reading, correcting,and signing.3

In many circumstances, counsel attendingthe deposition stipulate to a different deadlinefor the deponent to review the transcript. Animpending trial or motion date may leadcounsel to stipulate to a shorter period. Adeponent’s upcoming vacation or pressingwork obligations may lead counsel to stipu-late to a longer one.

In addition, counsel typically stipulatethat the transcript, once prepared, shall be sentto the deponent or to the deponent’s counselfor review. Counsel then typically agree thatthe agreed-upon time for the deponent toreview the transcript begins on the date thatthe transcript is sent to the deponent or thedeponent’s counsel, rather than the date onwhich the court reporter advises the depon-ent that the transcript is available for reviewat the court reporter’s office.

In the absence of a stipulation to the con-trary, any changes to the transcript are eithermade by the deponent in person at the officeof the court reporter or “by means of a letterto the deposition officer signed by the depon-ent which is mailed by certified or registeredmail with return receipt requested.”4 Lawyersusually stipulate that the transcript, once pre-pared, shall be sent directly to the deponentor to the deponent’s counsel (usually by aspecified means, such as overnight mail) sothat the review does not need to occur inperson at the court reporter’s office. In addi-tion, lawyers may stipulate to a differentmeans by which parties are notified of anychanges ultimately made to the transcript.

One common stipulation obligates thelawyer for the deponent to provide writtennotice within a stipulated period by regularU.S. mail (or some other means) to all partiesof any changes that are made to the tran-script after receiving notification of the changesfrom the deponent. If the deponent is notrepresented by counsel, the stipulation typi-cally imposes those duties on the lawyer for

the deposing party. With an impending motionor trial date, the terms of this stipulation canbe important. No one wants to file a motionfor summary judgment on the basis of keyadmissions made in a deposition, only to findout after filing the moving papers that thedeponent has changed the transcript to dis-avow the admissions. If timing is critical,negotiate a shorter period for the deponent toreview the transcript and an obligation toreport any changes by electronic mail or fac-simile rather than by postal mail.

Custody of the Transcript

By statute, after the review period expires,the court reporter is obligated to certify anddeliver the sealed original transcript to theattorney who noticed the deposition.5 Thatattorney is then obligated to store the origi-nal transcript “under conditions that will pro-tect it against loss, destruction or tamper-ing.”6 Counsel sometimes agree instead thatthe original transcript shall be maintained bycounsel for the deponent, or by someone elseother than the lawyer for the party noticing thedeposition. For example, if the deposing partyis likely to be dismissed in the near future,counsel may stipulate that the original bemaintained by someone else to avoid impos-ing ongoing duties on a party that is likely tobe no longer involved. The stipulation alsosometimes specifies that the original tran-script must be maintained until after finaljudgment in the action, unless otherwiseordered by the court. By statute, counsel mustretain the transcript until six months afterfinal disposition of the action.7

Counsel also usually stipulate that thelawyer with custody of the transcript is obli-gated to make the transcript available upondemand of any party for any trial, hearing, orother purpose in the litigation.

While a stipulation as to how many daysa deponent has to review a completed tran-script is useful, deponents often fail toexpressly approve, disapprove, or make a sin-gle change to a transcript after receiving it.Lawyers therefore often stipulate that if thedeponent fails to approve or provide notice ofany changes to the transcript within the allot-ted period, the deposition shall be given thesame force and effect as though it had beenapproved and signed without corrections. Bystatute, this would be the same result in theabsence of a stipulation.8

A deponent may never return the originaltranscript that he or she was sent, or an attor-

ney may have difficulty obtaining the originaltranscript from the lawyer with custody of itwhen the trial occurs years later and thelawyer with custody is no longer involved inthe case. To cover these scenarios, lawyerstypically stipulate that if the original tran-script is for some reason lost, stolen, or oth-erwise unavailable, that an unsigned certi-fied copy can be used in lieu of the original.

Rare outside Southern California.

While deposition stipulations may be commonpractice in Southern California, in other areas,customs differ. For example, lawyers inNorthern California do not ordinarily enter intostipulations at the conclusion of depositions.If you are attending a deposition outsideSouthern California, find a moment during abreak to ask the other lawyers attending thedeposition whether the common practiceincludes deposition stipulations. And if it doesnot, be sure to familiarize yourself with thedefault rules under the Code, since they are theguide for handling the transcript.

Although there are common topics coveredby a deposition stipulation, the details—suchas the number of days for the deponent toreview the transcript and who retains cus-tody of the original transcript—will differfrom case to case depending on the circum-stances. So if at the conclusion of the depo-sition, you are asked to stipulate to the usualstipulations, you should not hesitate to ask thelawyer to offer a particular proposed stipula-tion for your consideration. In listening tothe proposal, make sure that the proposedstipulations suit the client’s needs, particularlyregarding the timing of the review of the tran-script. Assuming that the stipulation is satis-factory on these grounds, you should feelcomfortable responding with the customary“so stipulated.”

Similarly, if you are counsel for the depos-ing party, be ready to offer a proposed stipu-lation of your own. Assuming that it covers thenecessary topics and addresses any uniqueneeds of the deponents or the lawyers inattendance, you can end your deposition witha smooth invocation of this SouthernCalifornia tradition. ❖

1 CODE CIV. PROC. §2016.030.2 See CODE CIV. PROC. §2025.520.3 CODE CIV. PROC. §§2025.520(b), 2025.520(a).4 CODE CIV. PROC. §2025.520(c).5 CODE CIV. PROC. §2025.550(a).6 Id.7 CODE CIV. PROC. §2025.550(b).8 CODE CIV. PROC. §2025.520(f).



You have recently graduated from lawschool. You have passed one of thetoughest bar exams in the country. Icongratulate you on these achievements,

and I promise you that they are just the startof what will be exciting and fulfilling profes-sional careers. We bench officers on the LosAngeles Superior Court look forward to hav-ing you appear before us.

Obviously, one of the best ways to be suc-cessful in court is to have a great case onboth the facts and the law. But even if you donot have the world’s greatest case, there aretechniques you can use to do the best jobwith the facts and the law that you do have.Applying these tips can make appearancesless stressful for you and keep bench officershappy. Although these techniques are offeredwith a civil practice in mind, many of theconcepts are applicable in any courtroom.

BE PREPARED. This is the overarchingrule: Do not go into any hearing unpre-pared. Understand the facts of your case,and know the law. It is important to read thepapers and be ready to respond to ques-tions from the judge. The judge will not besatisfied if you say you cannot answer his orher question because you are only making anappearance for another lawyer, either in yourfirm or as an accommodation to cover a con-flict for a colleague. Additionally, if the hear-ing is to schedule a future hearing or trialdate, make sure you know the schedule forall attorneys, experts, and other witnesseswhose appearance will be necessary for thehearing or trial.

As you read on, you will see that this prin-ciple of being prepared manifests itself inmany of the practices that make a successfultrial lawyer.

KNOW YOUR JUDGE. Every judge is dif-ferent and likes his or her courtroom run in

particular ways. If at all possible, visit thecourtroom in advance of your hearing andwatch the judge in action. Find out how heor she likes things done. If you do so, you willknow the layout of the courtroom and whereto stand, which will increase your comfortlevel at your hearing. If you will be in trialbefore that judge, watch a trial in action in thatcourtroom. At the break, talk to the lawyersabout their experiences in front of the judgeand ask about the judge’s likes and dislikes.

For example, different judges have differ-ent styles in terms of presentation—some likelawyers to present argument from behindcounsel desk or a podium; others let youmove about. In trial, in some courtrooms,you have to ask to approach the witness.Other judges do not require you to ask; youcan simply approach the witness. Now, if youdo things a way the judge does not like, youwill hear about it and have an opportunity tomodify your behavior; but it is far better forthe judge to see that you are doing thingsright from the start and to develop credibil-ity with the judge that you may need later.

In addition, if the judge is not on thebench when you visit the courtroom andcourt staff is free, consider introducing your-self to the court staff. They can be of greatassistance to you while your case is pendingbefore that judge, so it is helpful to be pleas-ant to them from the inception of your case.For example, if you intend to use any audio-visual equipment during your hearing or trial,you can talk to court staff about how andwhat equipment you need to bring in andwhen and where it should be set up. In all ourcourts, the courtroom personnel in everyposition are critical components of the oper-ation of the court. The judges value themhighly and respect them. You should too.

There are a number of sources available to

help you conduct some research about yourjudge. The Los Angeles County Bar Associ-ation has online biographies of many judges.Additionally, the Daily Journal has publishedbiographies of most of the judges, and manyother local bar associations have profile infor-mation available.

ALWAYS BE PROFESSIONAL. Many believethat in our aggressive and competitive profes-sion “Rambo tactics” are effective and civilityis a luxury they cannot afford. But that couldnot be further from the truth. Law is a profes-sion with professional standards—differentfrom other businesses. You are bound to thehigh ideals of the profession and you can beprofessional and assertive at the same time,always demonstrating respect for others and forthe justice system. Practicing professionalismand civility does not mean giving up being anadvocate for your client; indeed, it enhancesyour advocacy. A reputation for civility willbenefit your client in the long run. Treatingopposing counsel with the utmost profession-alism and courtesy will enhance your reputa-tion with the judicial officer hearing your caseand will make it easier to settle.

Judges do not want to become involved inpersonal fights between lawyers over discov-ery scheduling issues, such as the start timesand locations of depositions. Nor is the courtinterested in reviewing countless nasty e-mails and letters exchanged between counselover issues that could have been resolved if thelawyers had just picked up the phone. Inyour written papers and oral advocacy beforethe court, avoid hostile attacks on your oppos-ing counsel—simply stick to the facts andissues which will help the court resolve thelegal problem at hand.

Remember that your professional reputa-tion is at stake. Always treat the court, courtstaff, and opposing counsel with respect and

Judge Lee Smalley Edmon is the presiding judge of the Los Angeles Superior Court.

How to Survive—and Even Succeed—in the Los Angeles Superior Court

B y J u d g e L e e S m a l l e y E d m o n

AT T H E C O U R T H O U S E



dignity. You should prefer to have the judgeremember you for your professionalism ratherthan your incivility. Remember too that if youcome into court and are disrespectful to courtstaff, the judge will assuredly hear about it.

Of course, civility is not just a one-waystreet. Civility is required of all participants inthe system—not just advocates, but also liti-gants, witnesses, court staff, and judges.Indeed, judges may have the highest obliga-tion to act civilly in order to set the tone andto insist on civility in matters before them.

Finally, a part of being professional isdressing appropriately for your appearancesin court. Today many firms have a policy ofinformality at work, which may be fine inthe office, but is not fine when appearing incourt. This applies to both men and women.

PROVIDE THE COURTROOM WITH

COURTESY COPIES OF PAPERS FILED

SHORTLY BEFORE THE HEARING. This isa practice tip that is optional, strongly encour-aged by the court, and may help you succeed.Budget cuts and substantially reducedresources to run the system often result indelays that cause papers filed shortly beforethe hearing from being delivered to the court-room in time for the judge to read thembeforehand. Accordingly, it is advisable todeliver a file-stamped courtesy copy of plead-ings filed during the last seven days prior toa hearing immediately after they are filed, sothat the judge can be fully prepared.

BE BRIEF. Unfortunately it usually takesmore time to make your arguments brief, butit is worth it. Be concise and clear about whatyou are seeking. A succinct argument thatgets the judge’s attention is more likely to besuccessful. This is truer now than ever before.Due to recent budget cuts—which resulted inlayoffs of court staff and closure of some civilcourtrooms, even as case filings were rising—the caseloads of Los Angeles Superior Courtjudges have grown. As a result, there are morematters heard on the daily law and motion cal-endars, and there is often a massive amountof reading for the judge to prepare for eachday’s calendar. Keep that in mind as you pre-pare your papers.

In your pleadings, include only the argu-ment and evidence that are absolutely neces-sary to the result you are trying to obtain.Organize it in a way that will be easy for thejudge to find, follow, and understand.

The same is true with oral argument: Getto the point, be respectful, and address yourcomments to the court rather than opposing

counsel.BE ON TIME. Be respectful of the time of

court, court staff and opposing counsel bybeing on time. And never keep a jury waiting.Because you cannot anticipate the delays youwill encounter in traffic, in parking, and inlong security lines, the better approach issimply to plan to arrive early. That way, youwill have the opportunity to address any last-minute issues that may arise, have a cup of cof-fee, relax on a court bench, and be fully pre-pared to address the matter to be heard by thecourt. If you are going to be late, and it is sim-ply unavoidable, at a minimum you shouldgive the court and counsel a phone call, andit should be a very good excuse.

LOS ANGELES SUPERIOR COURT LIT-

IGATION PROGRAM. Twice a year on aSaturday, typically in March and August, anumber of judges of our court present a day-long program for young lawyers who haverecently passed the bar. The program iscosponsored by the Los Angeles SuperiorCourt Judges Association as well as the LosAngeles County Bar Association and itsLitigation Section. Attendees meet at theStanley Mosk Courthouse downtown andhear from judges about the civil litigationprocess in the Los Angeles Superior Court,including presentations about how and wherecases are filed, a discussion of alternative dis-pute resolution, law and motion, pretrialappearances, and trial. Written materials areprovided, covering information on virtuallyevery aspect of civil cases. I can assure you thespeakers will elaborate on some of the tips Ihave discussed in this short article. Informa-tion and registration for this program appearregularly at http://www.lacba.org/calendar.

WELCOME TO OUR COURTROOMS. Eachyear the court welcomes hundreds of newlawyers to our courtrooms. While it some-times is frustrating to deal with the mistakescaused by inexperience, judges generally aremore than willing to help new lawyers with pro-cedures and practices that take time to learn.After all, we were all new lawyers at one time.However, these tips to success can be mas-tered by the newest lawyer and should beheeded by the most experienced. Your inexpe-rience is not an excuse for not following them.If you don’t follow them, you can quickly wearout your welcome; but if you follow themstarting right now at the beginning, you willbuild a strong professional reputation in thecourthouse, and you will be serving yourclients well. ❖

www.expert4law.org

Target Your Online

Search for Experts

Quickly, Easily

Need an Expert? Find one here!

www.expert4law.orgThe Legal Marketplace

THE LOS ANGELES COUNTY BARASSOCIATION’S OFFICIAL ONLINE

DIRECTORY

• expert witnesses

• legal consultants

• litigation support

• lawyer-to-lawyer referrals

• dispute resolution serviceproviders



Attorneys entering the legal professionare no doubt hearing from their moreseasoned colleagues that the recentchanges in trial court operations, client

imperatives, and law office economics havebeen a seismic jolt to the legal landscape.Compared to previous decades when theeconomy was robust, attorneys now mustwork harder than ever to earn a decent living.They must adjust their litigation practices tomeet client challenges and maintain an edgeover the competition.

During their student days, new attorneysbegan to read the unhappy news, which hascontinued to dominate legal headlines, aboutvenerable large law firms crashing, merging,laying off attorneys, and cutting back on newhires. The economic downturn has affectedlaw firms of all sizes. Indeed, firms continueto struggle as longstanding clients—busi-nesses and individuals—become “slow pays”or “no pays,” simply unable to muster thefunds to pay lawyers to litigate. At the sametime, rivalry for clients is stiff, and rewardsseem harder to reap.

Major developments in California’s trialcourts are also having an impact on the man-ner in which cases are litigated. The eco-nomic downturn has caused the number andcomplexity of new court filings to dramaticallyincrease, after many years at a fairly constantlevel. The result is that civil trial courts arebusier than ever, with more pretrial matters,settlement conferences, and jury and benchtrials. Meanwhile, the number of courtroomsdevoted to civil matters has shrunk. Courtshave laid off employees, implemented hiringfreezes, and introduced monthly furloughdays during budgetary crunches.

There are no indications that court work-loads will be reduced soon or that additionalfunding is forthcoming. Simply put, the fis-

cal woes currently experienced by the courtstranslate into more crowded calendars andgreater difficulties in adjudicating civil cases.These conditions directly affect the ability ofattorneys not only to resolve their casespromptly but also to ensure that they areproperly compensated.

Under these changed circumstances, canattorneys assist the courts, their clients, andthemselves to more economically expeditecivil cases to resolution? The answer is yes.New attorneys as well as more experiencedpractitioners need to examine and tightentheir litigation practices to realize efficienciesfor all. A variety of practical tips may lead tomore cost-effective and successful litigation.

Truly Responsive Pleadings

For years, rumblings have echoed in variousquarters that too much attorney time andclient money is spent on initial pleadings.Certainly a well-conceived demurrer ormotion to strike by a defendant challengingthe adequacy of a complaint or claim candefine the scope and direction of a lawsuit. Inan era of longer court calendars and preciousclient resources, however, attorneys shouldtake more thoughtful precautions regardingthe filing of these types of pleadings and theirresponses. With increasingly longer waitingperiods for a court hearing, counsel mustreevaluate whether some of these calendar-clogging motions are fully worthwhile.

For plaintiff’s counsel, avoiding the possi-bility of a demurrer means carefully draftinga complaint that neither pleads nonessentialcauses of action nor offers a litany of every pos-sibility. Attorney time is too valuable to besquandered producing slapdash complaintsthat are easily demurred. For that matter, fewclients are impressed by—or want to payfor—a complaint that throws in the kitchen

sink along with more well-considered claims.Attorneys faced with a demurrer or motion tostrike should swallow their pride and file a firstamended complaint using the defendant’ssuggestions as a recipe for improvements orsimply seek a stipulation for an order for a fur-ther pleading.

On the defendant’s side, certainly a demur-rer or motion to strike that hits a home runis worth the effort. Many are not. So whydraft these pleadings when their only purposeis to educate the opposition about the prob-lems of the case? If some claims in a complaintwill plainly survive a demurrer, a defendant’scounsel can save a lot of bother—and theclient’s treasury—by moving the litigationprocess forward with an answer rather thantaking potshots at the complaint in the formof nondispositive demurrers or motions. If thefacts or legal theories seem deficient, devotethe client’s budget to pretrial discovery inanticipation of filing a motion that mightactually put the case to rest.

Timing Is Everything

As the fiscal ax falls more heavily on civilcourts, it will take longer for cases to come totrial or reach other types of dispositions. Thiscan lead to procrastination by counsel in theirpretrial preparations. Delay, however, is apoor strategy. Knowledge is essential to suc-cessful litigation. Counsel will improve theirchances of winning by obtaining key docu-ments and testimony as early as possible whilecrucial information is still available.

Old-timers—those who practiced in thedays before the institution of streamlined,expedited, trial-setting procedures—like totell their younger counterparts that it is amistake to wait until the trial bell rings (per-haps five years after filing a complaint) tostart conducting pretrial discovery. Too many

Michael L. Stern is a Los Angeles Superior Court judge.

Litigation Tips for Tight Times

B y J u d g e M i c h a e l L . S t e r n




veterans learned the hard way that early dis-covery makes sense because parties and wit-nesses move, relationships change, and mem-ories cloud. In addition, while a case lingersin limbo, concerned clients may be wonder-ing if their attorney is actually on the job,prosecuting or defending their case.

Whether counsel’s objective in conductingpretrial discovery is finding out what hap-pened or preserving testimony for summaryjudgment or trial, those who have waited fortrial in the long lines of yesterday advise thatit is good practice to start discovery early.This also avoids those last-minute races tothe courthouse to file motions compellinglong-delayed discovery or seeking a trial con-tinuance. Get the most bang for the discoverybuck by focusing, before the evidence trailcools, on the principal actors in the case fordeposition testimony.

More Action, Less Motion

Targeted written discovery is an integral partof a well-conceived pretrial discovery plan.Preparing and responding to written discov-ery takes a lot of time. Since time is money,practitioners should consider making a strate-gic judgment to dispense with nonessentialform and special interrogatories. Indeed, thistype of discovery may elicit responses moreoften from attorneys rather than parties.

Notwithstanding the high costs of litiga-tion, certain attorneys seem to spend inordi-nate amounts of time churning paper in thediscovery process. This species of advocateappears to have perfected the art of preparingvague written discovery requests designedmore to make the other side labor than obtainadmissible evidence. These practitioners areknown to propound written discovery by theinch and, inevitably, after their wishes for fee-ble responses come true, they seem to delightin filing motions to compel by the pile.Attorneys on the receiving end of oppressivediscovery requests should not hesitate to seekprotective orders placing limits on such non-productive make-work.

When discovery responses are incomplete,evasive, or simply not forthcoming, a mean-ingful meet-and-confer process should lead toa reconciliation of differences. A motion tocompel ought to be a last resort and avoidedat all costs. Moreover, counsel should takenotice that some judges are offended by dis-covery motions. Indeed, judges presume thatcounsel are professionals who are capable ofresolving discovery disputes on their own—

especially when the differences involve sim-ple matters such as setting deposition dates orresponding to form interrogatories. It is bestnot to lean upon a court’s time with a motionto compel discovery until all avenues for res-olution have been exhausted. If a motion tocompel becomes necessary, counsel arerequired to prepare a thorough, and preferablyjoint, statement.

Alternative Dispute Resolution

Judges frequently ask, “What have the partiesconsidered for ADR in this case?” Given thatcounsel hold the destinies of their clientswithin their grasp, the responses to thisinquiry can be exasperating. Attorneys toooften tell judges, “We haven’t gotten thereyet,” “We’re going private,” “Panel please,” orperhaps just stare back at the court with adeer-in-the-headlights expression. Most every-one appreciates the value of ADR programsand mechanisms, but too often the determi-nation of what form of ADR would be appro-priate is made with insufficient thought.

In today’s dollar-conscious legal world,attorneys have the responsibility to under-stand the nature of all the different ADR alter-natives and how each might best apply totheir cases. ADR is not a one-size-fits-allproposition.

Judges anticipate that counsel will per-sonally discuss ADR before a case managementor trial setting conference. It also is a good ideato know in advance about a particular judge’sprocedures and preferences.

One way to determine what to expect is tocontact the judge’s clerk in advance of theconference to find out whether the court auto-matically sets mandatory settlement confer-ences, waits for counsel to make a request, orrefers counsel to another judge for settlementpurposes. Surprisingly, this method of findingout the what and when of court proceduresis seldom employed. It should be—but not onthe day that the hearing is set. Discussing

this information by telephone or in personwith opposing counsel before an initial hear-ing—not just sending a pro forma e-mail orletter—can ensure that the appropriate ADRroute is selected.

Most California courts have different butsimilar in-house ADR programs available tomeet the requirements of litigants. These pro-grams would not be in place if judges did not

believe them to be cost-effective methods forresolving cases. Knowing in advance howthese in-house programs work is time-savingand perhaps even client-saving.

Aside from a traditional settlement confer-ence with the trial judge, these programs mayinclude mediation through a court-adminis-tered ADR office, voluntary early neutral eval-uation by experienced attorneys, a judicialofficer (other than the trial judge) conductinga settlement conference, “crash” settlementprograms using attorneys to conduct settle-ment conferences, or even referral to a volun-teer retired judge. It is an attorney’s respon-sibility to know how to take best advantage ofthese no-fee court ADR services.

With client funds at stake, practitionersshould thoroughly investigate the feasibility ofusing an alternative known as the SecondJudiciary: firms of retired judges, attorneys,and independents who arbitrate, mediate,and work as referees for a fee. In consideringthe selection of a nonjudicial ADR provider,ask these critical questions: Will the clientactually save time and money by opting forprivate adjudication? What is best for thecase: the convenience, informality, and privacyoffered by nonjudicial ADR or the force of thejudiciary’s imprimatur and procedures in apublic forum?

Expedited Jury Trials

Word is finally getting around aboutCalifornia’s recently enacted provisions forexpedited jury trials.1 Under these proce-

Too many veterans learned the hard way thatearly discovery makes sense because partiesand witnesses move, relationships change,and memories cloud.



The California Legislature and the JudicialCouncil have approved a new jury trialscheme that went into effect this year.1

There will be a bright future for this newmethod of adjudication when the potentialplayers figure out that an expedited jury trial(EJT) is good for clients, lawyers, and thecourts—not to mention the jury pool. Andnew lawyers will find that EJTs provide realtrial lawyer experience.

California borrowed the idea for EJTs froma program that began in Charleston, SouthCarolina, called Summary Jury Trials.Charleston implemented a system for tryingcivil cases before six-member juries in a sin-gle day. After a time, contingent fee lawyersand business interests in Charleston realizedhow cost-effective the program was, and theydecided to use it whenever possible. Charles-ton lawyers and the litigants (especially insur-ance carriers) became so enamored with thenew program that it soon was adopted acrossSouth Carolina.

By choosing an EJT, parties largely give upthe right to an appeal.2 There are only limitedcircumstances, such as fraud or jury or judi-cial misconduct, under which an appeal willbe allowed.3 In return, parties get an inexpen-sive trial in about one full court day.4 As withany matter, an attorney and client shouldcarefully consider what type of proceeding willbest serve the client’s goals. Mediation or arbi-tration may be better for a particular matter,or perhaps a traditional jury trial if preserv-ing rights is a concern. But in many cases,clients will be pleased to accept the risks of anEJT in return for its speed and finality.

Additional Rules

An EJT may not be required in advance by anycontract,5 but parties may stipulate to an EJT6

no later than 30 days before the date that is

set for trial.7 Without good cause, the courtmust permit an EJT if one is requested by theparties.8 To accomplish a civil jury trial inone day, there will be advanced exchanges andevidentiary rulings before trial, so partiesmust be cognizant of the EJT’s pretrial dead-lines, which are different from those of a tra-ditional jury trial.

Twenty-five days before the EJT, the par-ties must exchange evidence to be introducedat trial, witness lists, proposed jury instruc-tions, proposed jury questionnaires, proposedspecial verdict forms, motions in limine, andany technical glossary.9 Twenty days before theEJT, a supplemental evidentiary exchangetakes place.10 Any documents or evidencefirst discovered at an expert’s deposition isautomatically deemed exchanged for pur-poses of this supplemental exchange.11 Fifteendays before the EJT, the judge conducts apretrial conference and rules on evidentiaryissues and motions in limine.12 Deadlines forposttrial motions are unaffected.

An EJT is designed to be inexpensive andcompleted in one full court day.13 The rulescontemplate flexibility of judicial officers andcounsel14 and allow for innovative ways topresent evidence to a jury.15 EJTs are perfectfor a new attorney, and they can be held in lim-ited or unlimited jurisdictions.

EJT rules generally provide that there willbe eight jurors chosen after about a 45-minutevoir dire, with three peremptory challenges perside (unless fewer jurors are agreed upon by thelitigants).16 The judge and each side receive15 minutes to inquire of the jury panel.17 Sixof the eight jurors are needed to render a ver-dict, the same proportion required in a tradi-tional civil jury trial.18 Each side has three hoursto present its case, with cross-examination timecharged to the examiner’s three hours. Timecan be allocated unevenly if the parties agree.19

Steven P. Goldberg is a partner with Goldberg & Gille in Los Angeles.

Expedited Jury Trials Offer Quick TrialExperience

B y S t e v e n P . G o l d b e r gdures, courts may conduct quicker, less expen-sive jury trials lasting no more than a day, thuseffecting great savings in certain less com-plex cases.

The basic provisions for an expeditedjury trial are straightforward. All partiesmust waive their rights to appeal. Each sidehas three hours to put on all its witnesses,show the jury its evidence, and argue itscase. Eight jurors will be chosen to decide the case, with each side allowed threeperemptory challenges. Reaching a verdictrequires six jurors. The jury may decide thatone or more defendants will pay money tothe plaintiff, or the plaintiff is not entitled toan award. The court will enter a judgmentbased on the verdict. In addition, the partiesare allowed to agree before trial that a defen-dant will pay a certain amount to the plain-tiff even if the jury decides that a lower payment, or no payment at all, is due. Alt-ernatively, the parties may cap an amount tobe paid to the plaintiff even if the jury returnsa higher amount. (See Steven P. Goldberg,“Expedited Jury Trials Offer Quick TrialExperience,” at 52.)

Civility Pays Dividends

The greater difficulty in scheduling courthearings and trials under the new budgetconstraints is no excuse for attorneys to lowertheir standards for acting professionally withone another. The duty to act ethically withopposing counsel does not diminish becausethe court system is congested. New strains onattorneys and their clients require heightenedcooperation among counsel to ensure thatlitigation is accomplished in a responsiblemanner. Experience indicates that open linesof communication yield better results.

Most importantly, judges expect counsel totruly behave as officers of the court. Judicialofficers are not interested in petty bickeringor nonessential differences between attorneysor their clients. Those who use quarrelsomeor stonewalling tactics to secure advantagesshould remember that judges are extremelymindful of the adage “It all catches up withyou, sooner or later.”

Times are tough. No one ever said that thepractice of law would be easy. However, apply-ing some of these suggestions can make liti-gating a little more efficient, economical, andprofitable. ❖

1 See CODE CIV. PROC. §§630.01-630.12 and CAL. R. CT.3.1545-1552.




Counsel may make confidential high-low agree-ments; in South Carolina, they are a hallmark ofthe program.20 Parties to a suit enter theseagreements, which specify a minimum amountof damages guaranteed to the plaintiff and themaximum damages that a defendant will beliable for, regardless of the jury’s verdict. Usuallyinsurance policy limits serve as the high. Courtreporters are not needed under EJT rules, sincethe parties waive the right to appeal.21 If youwant a court reporter, you pay for one.

There are a host of suggestions within theEJT rules for additional stipulations betweencounsel. These are calculated to help the par-ties complete the EJT within the time allotted.Some notable suggested stipulations concernmodifications of time lines, limits to the num-ber of witnesses, evidentiary matters, exhibits,and video depositions.22

Most likely, the EJT process will primarilybe used by parties when there are small dam-ages, the issues are limited, or the parties justwant a jury to decide the issue. But even if thejury award has the potential to be very large,parties may still opt for a cost-effective EJT.

EJTs will serve as a way for lawyers to gaintrial experience, especially younger and lessexperienced counsel. Further, since lawyersmust actually work together on the stipulationsrequired for an EJT, the process should fostercivility between counsel. EJTs allow the courtsto move cases through the system faster andwith much less expense. Thus, judges will beable to increase efficiency and accomplishmore. Finally, jurors should be pleased toknow that—except for their unlimited delib-eration time—the whole trial should take justa single day. ❖

1 CODE CIV. PROC. §§630.11—630.12.2 CODE CIV. PROC. §630.09(a).3 Id.4 CAL. R. CT. 3.1550.5 CODE CIV. PROC. §630.03(c).6 Id.7 CAL. R. CT. 3.1547(a)(1); see also CODE CIV. PROC.§630.03(a).8 CODE CIV. PROC. §630.03(d).9 CAL. R. CT. 3.1548(b).10 Id.11 CAL. R. CT. 3.1548(f).12 CAL. R. CT. 3.1548(g).13 CAL. R. CT. 3.1550.14 See generally CODE CIV. PROC. §630.03.15 CAL. R. CT. 3.1551.16 CODE CIV. PROC. §630.04; CAL. R. CT. 3.1549.17 CAL. R. CT. 3.1549.18 CODE CIV. PROC. §630.07(b).19 CAL. R. CT. 3.1547(b)(4).20 CODE CIV. PROC. §630.09(d).21 See CODE CIV. PROC. §630.09(a).22 CAL. R. CT. 3.1547(b); see also CAL. R. CT. 3.1550.

The Rewards and Pitfalls of ClassActions

All you need is 40 people to level theplaying field against corporate America.If this sounds too good to be true, youare probably right. Having enough peo-

ple to form a class merely establishes one of thefour mandatory prerequisites for class certifi-cation. A class proponent must also demon-strate commonality, typicality, and adequacy.1

Popular culture suggests a distinct imageof class action litigation. In addition to legaltechnicalities, the predominating perceptionsare of big players and big settlements. Never-theless, despite its reputation, class action lit-igation is replete with risk for plaintiffs. Whilesmall individual claims can be transformedinto a supersized class action lawsuit, substan-tial expense and difficulty can await inexpe-rienced counsel. For those who are about toundertake their first class action litigation,here is a road map for success.

IF THIS IS YOUR FIRST TIME AT THE

DANCE, BRING A DATE. Traditionally, soci-ety runs on the concept of “first come, first

served.” In the legal community, this is knownas the first-to-file rule. The more appropriateslogan for a class action filing is “approachwith caution.” This is because the first lawyerto file suit will not automatically attain leadcounsel status. Rather, the mere sign of classactivity will easily fuel a lawyer lineup, inwhich many await the opportunity to expandon your ideas and potentially nullify yourefforts as lead counsel.

When the courts designate lead counsel,they are looking for someone with dedication,knowledge, and—more importantly—stay-ing power. If you are working in a small office,have few resources, and have little experi-ence in class actions, it is always best to finda partner and associate with a firm that has thenecessary resources and experience to pros-ecute complex litigation.

EVERY TEAM NEEDS A STRONG CAP-

TAIN. Behind every class representative standsa large group of people, who will learn that theclass is only as good as its representative. As

Brian S. Kabateck is a consumer rights attorney and founder of KabateckBrown Kellner LLP. He represents plaintiffs in class actions, mass tort lit-igation, personal injury, insurance bad faith, insurance litigation, and com-mercial contingency litigation. Dominique Nasr is an attorney at KabateckBrown Kellner LLP, where she practices in the areas of consumer classactions, mass tort litigation, and insurance litigation.

B y B r i a n S . K a b a t e c k a n d D o m i n i q u e N a s r

AM

AN

E KAN

EKO



a precautionary measure, conduct thoroughdue diligence when determining the suitabil-ity of a prospective representative. First andforemost, confirm the person’s ability to han-dle a long-term strategy. If the person is in theaction for the duration, whatever that may be,the person’s cooperation will see the matterthrough, and he or she will potentially serveas a good witness. It is also essential to verify

the individual’s capability of making rationaldecisions on behalf of purported class mem-bers. Psychiatric problems, memory loss, anda lack of common sense likely signal an unsuit-able class representative.

ONE AND THE SAME. To satisfy therequirement of typicality, a class representative’sclaims must be similarly situated to the claimsof other class members. In some circumstances,it may appear that a potential representative issuffering the effects of an unlawful commonscheme. However, only verification throughcoworkers, common knowledge, or Internetresearch can reveal if the potential representa-tive’s claim simply results from a singular badexperience. Beware of disgruntled employeesmasquerading as victims of a collective wrong.

A REAL CLASS ACT. Do not assume thata large number of injured individuals equateswith class action status. Mass tort litigation isnot at all like class action litigation.

The media regularly analogizes class actionlitigation to the battle of David versus Goliath.This reflects the ability of the class to providestrength and validity to a host of individualdamage claims too small to bring by eachindividual plaintiff.

Mass tort litigation, unlike the class con-cept, often combines large individual damagesin one trial. Therefore, in a mass tort setting,aggregate damages and class action prerequi-sites are usually rendered unnecessary.

DO CLASS MEMBERS HAVE SOME-

THING IN COMMON? A class may sue or besued only when there are questions of law orfact common to the class. The analysis shouldfocus on the defendant’s conduct and its com-

monality among class members.By contrast, mass tort actions address a

large number of individual questions of lawor fact. For example, medical injury suitsalmost never meet class action status becausethe injuries are so specific to each individualclaimant. Therefore, filing a class action is abad idea if individual determinations must bemade or if each plaintiff’s claim contains inher-

ent peculiarities.POWER IN NUMBERS. When battling

the corporate giant, how does one quantify themagic number for the size of the class?According to Rule 23(a) of the Federal Rulesof Civil Procedure, the proposed class must be“so numerous that joinder of all members isimpracticable.” Courts decode this rule tomean that, generally, the “numerosity” of aclass is at least 40 members.2 However, classactions against big businesses may requireeven bigger numbers.3 For example, Wal-Mart had been facing the possibility of a classof 1.5 million members. Recently, however, theU.S. Supreme Court denied certification, argu-ing that the class members did not share com-monality.4 Only the circumstances of eachcase will determine whether the numerosityrequirement has been satisfied.

CAFA MAY COME FIRST. In 2005,Congress enacted the Class Action FairnessAct, which expanded federal jurisdiction overclass action lawsuits. Federal courts now havejurisdiction to hear class actions in which theamount in controversy exceeds $5 millionand any class member has diverse citizen-ship from any defendant. In practice, thismeans you should be prepared to litigate infederal court, irrespective of your position asa plaintiff or defendant. While this act origi-nally received criticism as a boon for big busi-ness, in practice plaintiffs often choose the fed-eral forum. This is because the force of anationwide class is unlike any other.

ANTICIPATE YOUR WEAKNESSES.

Consumers, shareholders, and employeeshave long championed the class action as the

go-to remedy for corporate wrongdoing. Still,class actions are not free from disadvantages.In AT & T Mobility LLC v. Concepcion, the U.S.Supreme Court recently held that consumerarbitration agreements may include classaction waivers.5 Such a ruling has many pro-ponents seriously questioning the viability ofthis litigation method. Further, large actionsmean added costs, and more likely than not,class counsel will advance these costs on acontingency basis. In addition, the class rep-resentative must learn to put others first.Many representatives have difficulty under-standing that the needs of many outweighthe needs of one, especially when the defen-dant offers to settle.

A CASE OF THE GOTCHA. The gotcha sys-tem of liability occurs when statutory damagessubstantially outweigh any actual harm. Whatis the appropriate remedy? On the one hand,class certification is denied because the defen-dant should not have to compensate plaintiffsfor enormous statutory damages. On the otherhand, nothing good can come from turning ablind eye to statutory misconduct. In the clas-sic debate of policy versus procedure, the U.S.Court of Appeals for the Ninth Circuit weighedin on behalf of procedure.6 As a result, defen-dants have been warned that a mere technicalviolation may also be another class action law-suit waiting to happen.

CROSS YOUR T’S AND DOT YOUR I’S.

As class action lawsuits are a unique methodof litigation, counsel pursuing this type oflitigation will likely face significant ethicalchallenges. From beginning to end, your rep-resentation must always conform to theCalifornia Rules of Professional Conduct. Donot let your quest for the perfect class repre-sentative steer you into the unethical realm ofclient solicitation. Remember that as classcounsel you are acting on behalf of a largegroup of victims who have come to you notonly seeking relief but also, more importantly,protection. It is your continuous duty to pro-vide them with competent and ethical repre-sentation. ❖

1 FED. R. CIV. P. 23(a).2 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) (citing 1 NEWBERG ON CLASS ACTIONS

2d §3.05 (1985)), cert. denied, 515 U.S. 1122 (1995).3 See id., 47 F. 3d at 483.4 Wal-Mart Stores, Inc. v. Dukes, ___ S. Ct. ___, 2011 WL2437013 (June 20, 2011).5 AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (Apr.27, 2011).6 Bateman v. American Multi-Cinema, Inc., 623 F. 3d 708(9th Cir. 2010).


Behind every class representative stands alarge group of people, who will learn that theclass is only as good as its representative.


Having the last word on an issue is valu-able. This is especially true in a closecase. So why do lawyers often treatreply briefs like an afterthought?

Lawyers may paint a masterpiece in theiropening brief—whether it is in support ofsummary judgment, an appeal, or a simplediscovery issue—but when it comes time tocompose a reply brief, they use broken paint-brushes and leftover paint. By following 10simple guidelines you can master the art ofwriting an effective reply brief and in theprocess increase your chances of prevailing inany given case.

1. FILE A REPLY BRIEF UNLESS THERE

ARE STRATEGIC REASONS NOT TO DO

SO. Given that reply briefs are optional, thethreshold consideration is always whether tofile one at all. Most judges and lawyers agreethat the opportunity to have the last word onan issue should not be squandered absentextraordinary circumstances. So unless theanswering brief suffers from serious deficien-cies or is simply incomprehensible—meaningthat responding to it might give opposingcounsel’s arguments more credit than theydeserve—you should almost always file areply brief.

2. FOCUS ON RESPONDING TO OPPOS-

ING COUNSEL’S ARGUMENTS. Believe it ornot, lawyers sometimes forget the basic pur-pose of a reply brief. A reply brief is not a con-densed version or executive summary of theopening brief. The focus of any reply briefshould be to respond to opposing counsel’sarguments. You should get to the heart of thematter as quickly as possible. The overarch-ing goal of an effective reply brief is to boil thefactual and legal issues down to their bareessentials, fairly present both side’s positions,and—in an ideal world—leave the court won-dering why opposing counsel is fighting you

over such an obvious issue.If opposing counsel conceded any signif-

icant issues in the answering brief, point thatout for the court. If opposing counsel didnot address an issue raised in the openingbrief, highlight that fact and consider arguingwaiver. If the circumstances warrant such adiscussion, unmask the misguided policyunderlying opposing counsel’s arguments and explain to the court why your position is sounder.

But always remember the differencebetween attacking opposing counsel’s argu-ments and attacking opposing counsel. Havingthe last word on an issue does not give you freerein to take a cheap shot at opposing counsel.In most instances, this will hurt your causemore than it will help it, even if opposingcounsel is in fact a liar and a cheat.

3. LEAVE OUT WEAK ARGUMENTS.

Your reply brief should highlight the strengthof your case. Focus on the important, win-nable issues. Recite only the crucial facts and

leading authority supporting your position.Weak arguments undermine your credibility.In the immortal words of U.S. Supreme CourtJustice Oliver Wendell Holmes, “Strike forthe jugular, and let the rest go.”1

Sometimes a misguided lawyer will throwevery conceivable issue and argument intoan opening brief and hope that somethingsticks. That is bad enough, but do not makematters worse by revisiting one of your flimsyarguments in the reply brief. Some judges,such as Judge W. Eugene Davis of the U.S.Court of Appeals for the Fifth Circuit, mayinterpret this as a signal that your entire caseis weak.2 Or, as cautioned by U.S. SupremeCourt Justice Ruth Bader Ginsburg, becausebusy judges “work under the pressure of arelentless clock,” a “kitchen-sink presenta-tion may confound and annoy the readermore than it enlightens her.”3

4. MAINTAIN CREDIBILITY. Having thelast word on an issue imposes a heightenedduty of candor. While you should always


Damon Thayer is an associate at Jenner & Block LLP in Los Angeles, where his trial and appellate practice spansa wide array of subjects involving complex commercial litigation.

Making the Last Word Count:Guidelines for Writing an Effective Reply Brief

B y D a m o n T h a y e r

AM

AN

E KAN

EKO



strive to maintain credibility with the courtby being fair with the facts and the law, thisis a particularly momentous duty in replybriefs. Expect close scrutiny of what yousay, as courts are usually extra cautious aboutbelieving what is asserted in a reply brief.Simply put, aggressively represent yourclient’s interests, but if one of your con-tentions does not pass the straight-face test,leave it out of your reply brief.

5. EMBRACE A THEME. Although thisis important in all legal writing, it is critical for a reply brief to have a theme, otherwiseknown as a theory of the case. The themeshould take center stage in the beginning of the reply brief and should be woventhroughout the brief in your presentation ofarguments and facts. The theme should pre-sent the court with your client’s fundamentalview of the motion or appeal. It should be asimple, commonsense, and, if at all possible,emotive message that radiates the righteous-ness of your position. At the end of the day,a busy court might not remember anythingelse about your case except your theme. Makeit count.

6. DO NOT BE AFRAID TO GIVE YOUR

REPLY BRIEF SOME FLAVOR. If adding atouch of personal flavor to your case is amust, as it is for many lawyers and clients,then the reply brief presents a perfect vehiclefor doing so. The opening brief is the time togain credibility with the court through rock-solid reasoning and careful analysis. Makeno mistake, the reply brief still needs to showlucid analysis of opposing counsel’s argu-ments. But with your credibility already estab-lished, you can use your reply brief as anopportunity to inject a punchy phrase, collo-quialism, or metaphor into the case that sup-ports your view. To get the most bang foryour buck, the best place to add this flavor isgenerally in the reply brief ’s introduction or conclusion.

Of course, you should always take heed ofyour audience and determine whether therisk of using such a tactic is worth the possi-ble reward. Sometimes rhetoric will drive apoint home, but other times it may do moreharm than good.

7. MAKE THE REPLY BRIEF A STAND-

ALONE DOCUMENT. An effective reply briefwill make your case comprehensible to thecourt as a stand-alone document. A little-known fact about the judicial process is thata number of judges and law clerks read replybriefs before reading any other brief to get a

sense of what the case is about and whatissues are paramount. Even when the briefs areread sequentially, your reply brief may beread days or weeks after the other briefs havebeen read, meaning that the court may notremember much about your case.

Always keep in mind that judges are gen-eralists who deal with a diverse array of legalissues. Law clerks, especially at the federallevel, are often fresh out of law school and mayhave no experience whatsoever in your case’ssubject area. With that audience in mind,your reply brief needs to convey the legalprinciples necessary to adjudicate the dis-pute. At the same time, however, your replybrief should discard any superfluous legalprinciples. Knowing exactly what informa-tion to put into the reply brief and what tokeep out can be a delicate balancing act.

As one obvious example of what not to do,Ninth Circuit Chief Judge Alex Kozinski haspoked fun at the following sentence that wascontained in a brief he read: “LBE’s complaintmore specifically alleges that NRB failed tomake an appropriate determination of RTPand TIP conformity to SIP.”4 The lesson hereis that if you absolutely have to use acronymsor abbreviations in your reply brief, be sureto reintroduce what those space savers standfor before using them. A judge should nothave to jump back to your opening brief to fig-ure out what you are talking about.

Almost as bad as inundating the courtwith acronyms and abbreviations is usingunnecessarily complicated jargon. The courtshould not have to refer to your opening briefor look up the words you use to understandyour case. As astutely noted by Seventh CircuitJudge Richard Posner, “Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocab-ulary accordingly.”5

8. WRITE A REPLY BRIEF THAT IS NO

LONGER THAN NECESSARY. Just like know-ing that the sky is blue and the grass is green,many lawyers seem to believe that every replybrief needs to fill the maximum number ofpages allowed. Do not accept this as yourmantra. A reply brief should only be as longas it needs to be to persuade the court thatyour side should prevail.

Court rules generally prescribe a maxi-mum length of 10 to 20 pages for reply briefs.In addition, a judge’s “local local” rules mayimpose even stricter page limits, so be sure toread them. Sometimes the maximum numberof pages is necessary. Other times four pages

will suffice. On rare occasions, such as witha very complex case, you may correctly decideto request to file an oversized brief. And, oncein a blue moon, a pithy one-paragraph replybrief will strike a nail into the coffin of oppos-ing counsel’s case. Do not shy away from fil-ing a short reply brief if it will get the job done.A short reply brief tells the court that you areconfident about your position, and the pointsthat you do make will likely receive greaterattention than these arguments would receiveif they were contained in a brief overloadedwith unnecessary text.

9. PAY ATTENTION TO DETAILS. Whendrafting a reply brief, it is common for lawyersto paraphrase arguments or facts from theiropening brief. There is nothing wrong withthis practice, assuming that you reexamine thecited authorities and record before filing. Byparaphrasing, you may have subtly changedthe meaning of your previous arguments orfactual statements, thereby leaving your asser-tions unsupported, lacking in precision, tooaggressive, or not aggressive enough.

Do not underestimate the harm that canbefall your credibility and ultimately yourcase if you mess up a case or record citationor otherwise engage in sloppy cite checking.As an obvious example, the cases that yourelied on in your opening brief may no longerbe good law.

10. TELL THE COURT EXACTLY WHAT

YOU WANT. A surprising number of liti-gants conclude briefs without stating specif-ically what they want the court to do. Do notexpect the court to read your mind. Shouldsummary judgment be granted on all claimsand as to all parties, or just some? Should thecomplaint be dismissed with or without prej-udice? Is a straight reversal in order? Is aremand, perhaps with instructions to thelower court, necessary? Is any alternativerelief requested?

If you have a decent case and follow these10 guidelines when drafting your reply brief,the court should be prepared to give youwhat you want by the time it reads your con-clusion. Do not forget to be specific aboutwhat exactly that is. ❖

1 OLIVER WENDELL HOLMES, SPEECHES 77 (1934).2 Bryan A. Garner, Judges on Briefing: A National Survey, 8SCRIBES J. LEGAL WRITING 1, 7 (2001–2002) (interviewwith Judge W. Eugene Davis).3 Id. at 10 (interview with Justice Ruth Bader Ginsburg).4 Alex Kozinski, The Wrong Stuff, 1992 BYU L. REV. 325, 328(1992).5 Indiana Lumbermens Mut. Ins. Co. v. Reinsurance Results,Inc., 513 F. 3d 652, 658 (7th Cir. 2008).



It’s hard enough learning how to try a casewithout having to think about what hap-pens after the trial. But practitioners mustnever forget that what happens next may

depend entirely on how well they preserve therecord for appeal. In learning how to do this,new lawyers should pay particular attentionto the areas in which even very experiencedtrial lawyers make mistakes.1

MAKING A RECORD. The court of appealhas “at least three immutable rules” for appel-late law practitioners: “[F]irst, take great careto prepare a complete record; second, if it isnot in the record, it did not happen; andthird, when in doubt, refer back to rules oneand two.”2

If there is no reporter present, there is norecord. But simply ensuring that a reporter isrecording the proceedings does not guaranteethat the words on the printed page of thereporter’s transcript will make sense to thecourt of appeal. Descriptions that may beclear to those watching whoever is speak-ing—“about this big,” “coming from thatdirection,” “please compare that documentto this one”—are unintelligible to someonewho was not in the courtroom observing whattook place. Practitioners should use words,and witnesses should use words, to make allindications precise on the page. If witnessesare not specific, practitioners should add thewords themselves—for example, “let therecord reflect that the witness is indicatingabout two feet.”

Ensure that your exhibits are both identi-fied and admitted. You should confirm the sta-tus of exhibits with the clerk, the reporter, andopposing counsel at the end of every trialday, and with the court before the jury beginsdeliberations.

VIDEO DEPOSITIONS. Video depositionsand other sound recordings pose a special

problem, because ordinarily the reporter doesnot transcribe them. Comply with Rule 2.1040of the California Rules of Court and submit atranscript. If you do not, the testimony “didnot happen.”

EVIDENTIARY OBJECTIONS AND

OFFERS OF PROOF. Most practitionersknow that an objection not made is waived.Here is another truism: In many situations,an objection not ruled on is also waived.3

Be sure the court rules—and does so aspromptly as possible.

A fundamental principle of appellate prac-tice is that a trial court’s error cannot supportreversal unless it was prejudicial.4 When anerror results in the admission of evidence,the record will generally show the error’simpact. But the exclusion of evidence posesa problem: There is no way the appellatecourt can gauge prejudice without knowingwhat the evidence would have shown. If thisis not obvious from the record, you mustmake an offer of proof.

The requirements are strict. The offer“must set forth the actual evidence to beproduced and not merely the facts or issuesto be addressed and argued.”5 The best wayto do this is by a written submission thatincludes all the documents and testimony theparty is offering. If possible, draft the offer of

proof before trial so you can be sure it is suf-ficient. This is far more effective than impro-vising when the court sustains an objection.

JURY INSTRUCTIONS. Jury instructionsare such a fertile source of error that they are

one of the first places an appellate lawyerlooks to for a basis for reversal. But triallawyers often do not spend enough timepreparing the instructions, and they also failto keep track of what happens to them.Complicating the situation is the fact thatwaiving instructional errors is extremely easy.Here are some basics:

• By statute, all jury instructions are “deemedexcepted [i.e., objected] to.”6 However,because there are many exceptions to thisrule, it is a mistake to rely on this automaticobjection.7 State your position clearly on therecord.

• It is essential that the record reflect the ori-gin of each instruction, including any changesmade to it. The appellant cannot challenge ajury instruction that the appellant requested,so “[i]f the record does not show which partyrequested an erroneous instruction, the review-ing court must presume that the appellantrequested the instruction and therefore cannotcomplain of error.”8

• If the court requires you to settle juryinstructions off the record, be sure to state your


Robin Meadow is a senior partner with the appellate firm of Greines, Martin, Stein & Richland LLP. He has writ-ten and lectured extensively about appellate law and technology for appellate lawyers.

Protecting the Record for Appeal

B y R o b i n M e a d o w

If witnesses are not specific, practitionersshould add the words themselves—for exam-ple, “let the record reflect that the witness isindicating about two feet.”




position on the record regarding any instruc-tions as to which the record is not alreadyclear. This is particularly important when thecourt crafts its own language.

• Be sure to make every instruction you offerpart of the record, either by filing it or read-ing it into the record.

• Answers to questions from the jury duringdeliberations are effectively supplementalinstructions. The same rules about making arecord apply.

SPECIAL VERDICTS. In a special verdict,the jury only finds facts, and the court entersjudgment based on those facts.9 Special ver-dicts can be valuable. They explain the jury’sverdict and may provide ways to attack or sup-port the verdict in posttrial motions and onappeal. However, they are also fraught withrisks. The most important is the possibility thatthe special verdict may fail if it omits an indis-pensable finding:

The requirement that the jury mustresolve every controverted issue is oneof the recognized pitfalls of special ver-dicts. The possibility of a defective orincomplete special verdict, or possi-bly no verdict at all, is much greaterthan with a general verdict that is testedby special findings.10

Another risk is inconsistencies. A generalverdict with special findings “will not be setaside unless there is no possibility of recon-ciling the general and special verdicts underany possible application of the evidence andinstructions.” However, “there is no suchpresumption in favor of upholding a specialverdict.”11

To achieve the desired results from a spe-cial verdict, you should:

• Review a proposed special verdict carefullyfor omissions and inconsistencies.

• Be sure that no answer to a question cantrigger uncertainty about how the jury shouldanswer other questions.

• Scrutinize the verdict as rendered to besure there are no omissions or inconsistencies.Problems sometimes do not become apparentuntil the verdict has been rendered.

• If there is a problem, speak up before thejury is discharged. Failure to do so may waiveany error.

STATEMENTS OF DECISION. Few triallawyers—and surprisingly few judges—understand statements of decision. Mostlawyers see them as an opportunity to rearguethe case, but they are not. Their one purposeis to nail down the basis of the trial court’s

decision in a bench trial for purposes of appel-late review.

Statements of decision involve the doctrineof implied findings, a principle of appellate lawthat “requires the appellate court to infer thetrial court made all factual findings neces-sary to support the judgment.”12 According tothe court of appeal:

The doctrine is a natural and logicalcorollary to three fundamental prin-ciples of appellate review: (1) a judg-ment is presumed correct; (2) allintendments and presumptions areindulged in favor of correctness; and(3) the appellant bears the burden ofproviding an adequate record affirma-tively proving error.13

If there is no statement of decision, theappellate court will presume that the trialcourt relied on whatever properly admittedevidence and legal analysis support the judg-ment and that it rejected all contrary evi-dence and argument. But if the appellantproperly requested a statement of decisionand objected to any omissions or ambiguitiesin a proposed statement of decision, the courtof appeal may not presume unfavorable find-ings as to those issues.14 Moreover, a state-ment of decision may reveal that the trialcourt did not actually rely on certain evi-dence, relied only on inadmissible evidence,or reached its decision by an erroneous legalanalysis.

For these reasons, only the appellant wantsa statement of decision; the respondent isbetter off without one. So except for one-daytrials, for which you must request a state-ment of decision “prior to the submission ofthe matter for decision,”15 wait to see what thecourt decides.

A statement of decision is available “uponthe trial of a question of fact” and in certainother proceedings.16 They generally are notavailable for motions except when the motionis more akin to a fact-finding trial—in whichcase the one-day-trial requirement governs.17

Always check the governing statutory schemeand case law.

The request should seek the factual andlegal basis for the court’s decision “as to eachof the principal controverted issues at trial.”18

It should not reargue the case. The state-ment-of-decision process presupposes thatyou have lost and that your goal is simply tohave the trial court explain why. Likewise, theprimary reason for you to respond to oppos-ing counsel’s proposed statement of decision

is to identify omissions—such as failures toaddress principal controverted issues—orambiguities.

NOTICE OF APPEAL. Timing is every-thing. The deadline for filing a notice of appealis jurisdictional. Missing the deadline meansthat your client’s appellate rights are absolutely,irretrievably gone. Because posttrial motionscan extend the deadline for filing the noticeof appeal, it is crucial to review every appli-cable statute and rule carefully and to calcu-late, and recalculate, the time.19

And remember: unlike almost every othertrial-level litigation deadline, the deadline forfiling a notice of appeal (as well as most post-trial motions) runs from the date of mailingof the notice of entry of judgment—with noextension for service by mail.20 ❖

1 For more detailed discussions on appellate law topics,visit the Los Angeles County Bar Association’s onlinepublication Appellate Tips for Trial Lawyers, for membersonly at http://www.lacba.org/showpage.cfm?pageid=8556.2 Protect Our Water v. County of Merced, 110 Cal. App.4th 362, 364 (2003).3 See Gallant v. City of Carson, 128 Cal. App. 4th 705,712-13 (2005); City of Long Beach v. Farmers & Merchs.Bank of Long Beach, 81 Cal. App. 4th 780, 784 (2000).Although, as these cases note, it used to be the rule thatunruled-on objections were also waived in summaryjudgment motions, the California Supreme Court disap-proved that rule last year. Reid v. Google, Inc., 50 Cal. 4th512, 527 n.5 (2010).4 Soule v. General Motors Corp., 8 Cal. 4th 548, 574, 580(1994).5 People v. Schmies, 44 Cal. App. 4th 38, 53 (1996); seeEVID. CODE §354.6 CODE CIV. PROC. §647 (Automatic exception applies to“giving an instruction, refusing to give an instruction, ormodifying an instruction requested.”).7 See Agarwal v. Johnson, 25 Cal. 3d 932, 947-51 (1979),overruled on other grounds by White v. Ultramar, Inc., 21Cal. 4th 563, 574 n.4 (1999).8 Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th655, 678 (2008) (emphasis added).9 CODE CIV. PROC. §624.10 Myers Bldg. Indus., Ltd. v. Interface Tech., Inc., 13 Cal.App. 4th 949, 960 (1993) (internal quotation marks,brackets, and citation omitted).11 City of San Diego v. D.R. Horton San Diego HoldingCo., Inc., 126 Cal. App. 4th 668, 679 (2005) (internalquotation marks and citation omitted); see generallyZagami, Inc. v. James A. Crone, Inc., 160 Cal. App. 4th1083, 1091-92 (2008).12 Fladeboe v. American Isuzu Motors Inc., 150 Cal. App.4th 42, 58 (2007) (citation omitted).13 Id.14 CODE CIV. PROC. §634.15 CODE CIV. PROC. §632.16 Id.; see also CODE CIV. PROC. §1291; FAM. CODE §§2127,3022.3.17 See, e.g., Gruendl v. Oewel P’ship, Inc., 55 Cal. App. 4th654, 660-61 (1997) (motion to add judgment debtor).18 CODE CIV. PROC. §632; see CAL. R. CT. 3.1590.19 See CODE CIV. PROC. §§659-663a and CAL. R. CT. 8.104,8.108. See also Honey Kessler Amado, Beat the Clock,LOS ANGELES LAWYER, Mar. 2010, at 26.20 CODE CIV. PROC. §1013.


After seven years as a hospice volunteerand four years as an integral coach to thelegal community, I have witnessedtremendous suffering—remarkably,

more among those “living” in our legal com-munities than those dying in our public hos-pitals. What is it about our work that bringsabout such outcomes?

In 2002, a middle-aged partner of a promi-nent San Francisco law firm was exiting theUCSF Cancer Center after a quarterly check-up. It had been 10 years since his originalprognosis when he was told that he might onlyhave two years left to live. As he reached thestreet door of the center, which also gaveaccess to the adjacent hospital, he ran into afounding partner of his firm, a man 15 yearshis senior whose cancer was metastatic andhighly advanced. They had seen one anotherat the office that morning, but this would bethe last time that they would meet. The sen-ior partner died three days later. The surviv-ing partner then vowed that his last day in lifewould not be in the office, unless his workbecame his calling.

It is said that one’s work is either a job, acareer, or a calling. A job is something that youdo for money and little more. A career is a lad-der that you climb for status, power, andmoney. It is externally referenced, and successis based upon meeting the expectations ofothers, not your own self-fulfillment. A call-ing may include status, power, or money, butit is self-referencing. It is a professional lifelived in congruence with your passions.

Passions are rarely confined to the profes-sional domain. If your professional life is yourcalling, it is because you are in pursuit ofyour life’s purpose, which extends well beyondyour work existence. Consider Martin LutherKing. Do you think he ever considered his

work as a “job?” Were his sacrifices, as a civilrights leader, part of a “career?” Is there anydoubt that his work as a preacher, as a civilrights leader, as a community member werenot coherently joined, sustained, and invigor-ated by his “calling” to change racial relationsin this country, once and for all?

The example of King shines a light onwhat is at the heart of a fulfilled life—yourrelationship to your own mortality. You knowthat your death is inevitable and that your lifespan is decreasing continuously. You knowthat your life expectancy is uncertain andthat death will come whether or not you areprepared. You also know that when deathcomes all of the status, power, and money thatyou have accumulated cannot help you. Sowhat really matters? What do you believeyou are here to do? What is your purpose?What gives your life meaning?

One of the difficulties of our modern lifeand upbringing is that we rarely are invited toconsider these fundamental issues. As youproceed through primary and secondaryschool, acquiring skills and making a recordadequate to allow you to compete for space ina university of your choice, little time is givenover to introspection. Perhaps in college youare able to study philosophy or psychology,but then the quest for graduate school entryleaves little room for actual contemplation ofthe great ideas of human existence offered inyour undergraduate years. In law school, thefunctional equivalent of boot camp forlawyers, there is the constant pressure andcompetition for top grades and then the antic-ipation of, and preparation for, the dreaded barexam, all serving as a constant source of dis-traction. Having run that tortuous gauntlet, youmay have been offered a job—not necessarilythe one you sought, but a job nonetheless.

When, in that hectic period, do most peoplemake the time to inquire into life’s meaning?

But, ask yourself now: How do youapproach this finite existence called “life?” Isit a container to be filled? Or is it, by thenature of its inevitable closure, a gift to besavored? If the former, you will find plenty tokeep you busy. You will find a mate, procre-ate, raise your progeny, acquire things, pur-sue status, compete, and conquer. If the lat-ter, you will find yourself slowing down andheightening your awareness of all that isaround you. You will observe life in all its par-ticulars, opening up your awareness to allthat it offers, expanding your curiosity ofwhat more you want to experience, learn,explore, and discover. You will build and sus-tain meaningful relationships.

Imagine that you are 95 years old. Your lifehas gone exactly as you had wished. You arefulfilled, happy, and at peace. As you look backfrom that place, imagine what your life wouldhave to have been to deliver you there. Howimportant were your contributions to yourcommunity? How significant were your rela-tionships with family and friends? Did youleave time to follow your passions? If so, whatwere they? Did they include travel, music,art, further education, public service, or char-itable works? Is the life that you are leadingnow likely to take you to that place of fulfill-ment, happiness, and peace? If not, why not,and what are you going to do about it?

Recognize that the answer lies in pursuinga path. Outcomes flow from the journey itself,not from reaching the destination. Awarenessis fundamental. Can’t you find a precious fewmoments each day for quiet introspection? Itmay be meditation, a yoga practice, prayer, orplaying music. The object is to create space forsilence, to allow you to drop deeper into


HEADLINE

B y l i n e


The Practice of Law: Your Job, Your Career, or Your Calling?

B y T i m o t h y A . To s t a

T H E W O R K O F A L I F E T I M E

Timothy A. Tosta is a cancer survivor, seasoned hospice volunteer, and a partner in the San Francisco officeof Luce, Forward, Hamilton, & Scripps LLP, where he specializes in land use law.


yourself, to allow the myriad of thoughts rac-ing through your mind to be observed but notacted upon. They are, after all, only thoughts.As you learn to create space in your mind youwill find that your awareness grows. Withyour growing awareness you can open yourcuriosity and find new perspectives that shiftyour beliefs and judgments about how lifeshould be. You become aware of your inher-ent goodness and generosity. You learn the sig-nificance of human relationships.

From this awareness, you acquire an ini-tial inkling of what your purpose in life mightbe. It doesn’t come all at once. As you proceedfurther down the path of awareness, yourpurpose evolves and becomes more elabo-rate. As your purpose takes shape, somethingextraordinary happens. You find an ability toidentify goals and set priorities which supportyour purpose. Other to-dos, largely creaturesof your habitual thinking imbedded fromyour culture and upbringing, can fall by thewayside, since they are not truly yours.

As you pursue your goals by followingyour priorities, you find relationships thatsustain and nurture you. Your life becomesbalanced because there is an alignmentbetween who you are and what you do. You

will find yourself in the company of thosewho naturally support you because you arefollowing your passions and are generous,open, and forthcoming. This all takes time. Itdoesn’t happen at once. In fact, it can’t, becauseyou are continuously evolving, discovering,and modifying your life to fit the ever-chang-ing circumstances of the world in which youlive. But this time is neither futile nor frustrat-ing, because you are pursuing your path andnot that of someone else.

So how does all of this fit into where youfind yourself now? First, you cannot begin toconsider what to change until you knowwhere you might be going. Take time to bewith yourself. That time exists in your life,right now—even if you think otherwise. Asyou begin to pay attention to the subject ofpurpose, you will find it beginning to emergefrom what you are reading, or listening to,from conversation, and from inspiration.

Second, what parts of your current lifesupport what you anticipate your purposemight be? Observe yourself, keep a journal. Tryto expand those elements of what you do to seeif more is truly better. Third, study your rela-tionships. Spend time with people who inspire,support, and nurture you. Avoid those who are

toxic to you. You know who they are. Fourth,take care of your body. Take up a slow move-ment practice such as yoga or Qi Gong tolearn where and how you carry stress in yourbody so that you may find ways to dischargeit. It will make for better health and mentalclarity. Fifth, listen—truly listen—to others.While giving others the gift of your attention,you allow them to go deeper into their ownthoughts and allow yourself to becomeacquainted with the sources of your reactions.You will learn that there are minds that oper-ate quite differently from your own. You willcreate a capacity for understanding those dif-ferences and develop tools for reconcilingthem, always of help in effective lawyering.

All along you are building capacity toattain that fulfilled, happy, peaceful life youseek. You will make choices that feed your pas-sions. You will build relationships that nurtureyou as you increase your capacity to nurtureothers. You will bring your life into balance.And, if you find that your current work is notallowing you to follow your path, you mayelect to change your workplace, your spe-cialty, or even your career. Remember, if it isn’tyour “calling” then it’s just work. You deservemuch more, as does the world from you. ❖


THE BARRISTERS SECTION brings opportunities for professional devel-opment and networking to new and young lawyers in Los Angeles Countyand throughout California. If you are a member of LACBA and are either36 years of age or younger or have been admitted to practice for fiveyears or less, you are eligible for Barristers membership.

Volunteers are always welcome!

Here are just some of the many opportunities available to Barristers:

TThheerree’’ss SSttrreennggtthh iinn NNuummbbeerrss

✔ Bench and Bar Committee

✔ Law Student Outreach Committee

✔ Continuing Legal EducationCommittee

✔ Government Relations Committee

For more Information, check out the Barristers’ Web pages at

www.lacba.org/barristers

PLEASE DON’T FORGET: To join the Barristers for 2012, include the $35 Section

dues when you renew or sign up for your general LACBA membership this fall.

the Los AngelesCounty Bar AssociationBarristers and become

part of the action of

California’s strongestassociation of new and

young lawyers

Join

✔ Legal Profession Committee

✔ Networking Committee

✔ Pro Bono Committee


daytrialoffer30

myfirmmanager.com/try-it-now

Don’t let the fear of running your practice eat you alive.

Firm Manager ™

http://www.lexisnexis.com/

http://www.fulcruminquiry.com