Circle of Legal Trust Law Journal 1st ed


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Practicing lawyers share articles on the finer points of practicing law and marketing their law practice. Topics range from lawyer advertising to conducting a deposition and much more. Want to learn about attorney search and practicing law. Download the pdf law journal. Learn how to work on your legal practice as well as in it

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Circle of Legal Trust Law Journal 1st ed

  1. 1. - - Circle of Legal Trust - The Art of Negotiation in Mediation Is Timing Everything? Negative SEQ Have you been hit? Effective Attorney Marketing for 2014 Attorney Fee Sharing Civility in Depositions s Vegas 2013 e first ever COLT get together
  2. 2. contents C.O.L.T . Table of Contents Publisher's Foreword ....................... ..... ..................................... 2 Michael Ehline Admission of OSHA Regulations to Prove Negligence in W orksite Injury ....................................... 3 Jonathan Rosenfeld Negative SEO ......................... ..... ................................................ 7 Steven Sweat .. . ·1· . CIVI 1ty In Depos1t1ons ... .... ..... .... .... ..... ................. .... ..... .... ..... .. 10 Anthony Castelli Don't Destroy Your Personal Injury Claim with your Personal Social Media Posts ...................................... ~3 Seth Price Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island ...................................... ~6 David Slepkow Information That Is Kept From Juries in Personal Injury Trials: Secrets Revealed ................................ 20 Matthew Dolman Effective Attorney Marketing in the Digital World for 2014 and Beyond! .... ........ ..... ........ ..... .... .... .23 Gerrid Smith The Art of Negotiation at Mediation . . . ..... I s T1m1ng Ever-yth 1ng? ........ ..... ........ ..... .... .... ..... ........ ..... ..... .28 Michael Ehline Editor's Closing .................... ..... ............................................... .33 Steven Sweat October 2013 Page 1
  3. 3. C.O.L.T. publisher's foreword Hello and welcome to our honorary society of vetted lawyers and search engine experts. I am attorney Michael Ehline. I am the founder of the Circle of Legal Trust. Representing a grand experiment in "understanding attorney search", the Circle of Legal Trust is a trust based system, designed to protect and promote and develop trusted branding and prospective client relations for licensed attorneys, internationally. As our motto states, it is the place "where the law meets the semantic web." As the rules state, there are various levels of membership. The highest levels of membership starts with being "patched in". Authorized members have their own column in COLT Journal and are entered into a trusted "whitelist" at http:/ / The Journal is a fusion of internet related issues, as well as related legal issues presented to users of the world wide web. From video taped depositions conducted via satellite, e-discovery, online legal ethics, social media, all the way to attorney marketing. Prior to April of 2012, there was a serious void for busy trial lawyers, barristers, solicitors and litigators trying to take advantage of the cutting edge technology afforded by Google, Bing, and Yahoo!. There was no peer support offered to law firms who had been hit by the Google Panda and Penguin updates, or who had hired unworthy SEO companies and in house marketers. Something had to be done to lift the "Sword of Damocles" of ignorance from the heads of worthy lawyers. Enter the Circle In the summer of 2012, several attorneys who were the very first users of Google Plus began to collaborate and realized that "one is none, two or more is one", and we started to share information about attorney search, proper online etiquette, understanding and interpreting the often vague, ambiguous and unintelligible local and organic search engine quality guidelines. We all decided that in order to do well online, one could not hire someone to run their online destiny. We discovered that one must integrate the search engines into their practice and consider it to be no different than filing a motion with the court. This is really what sets us apart. Our members learn what the experts know, and then mentor other members in their chapters. Being a member of COLT is a brand insurance policy that comes with fraternal support. We are proud to announce exponential growth in membership since its formation in the summer of 2012. In fact, this very journal commemorates our first annual Las Vegas Convention. See you live or at the HOA and enjoy our magazine and various web properties. Michael Ehline, Esq. October 2013 Page2
  4. 4. C.O.L.T . worksite injury The Admission of OSHA Regulations to Prove Negligence in Worksite Injury Cases By Jonathan Rosenfeld Background Information and History of the Occupational Safety and Health Act (OSHA) The Occupational Safety and Health Act (OSHA) was passed by Congress in 1970 for the purpose of ensuring a safe workplace for employees and defining an employer's standard of care in a workplace. The Act contains both health and safety standards that have been effective in assisting worker-plaintiffs in recovering damages against employerdefendants and other third parties. healthful working conditions and to preserve our human resources." Prior to the enactment of OSHA standards, workers in the United States had few protections available to them under the law. The economy of mass product in the United States did not function in a manner to make workplace safety a priority. Instead, it was more affordable for employers in mass production industries to replace a dead worker than it was to place safety measures onto the market. Throughout the 18oos and early 1900s, workers continued to be injured during World War I and World War II. The increase of industrial production during World War II left over 14,000 workers dead and 2 million individuals injured due to inadequate workplace standards. Admissibility of OSHA Regulations in Work Accidents And Construction Site Injury Cases It was not until the eventual passage of OSHA in 1970 that Congress sought to, "assure so far as possible every working man and woman in the Nation safe and The majority view is that OSHA violations are admissible as evidence in tort cases. Some courts only view OSHA violations as "some evidence" that will not fully prove negligence. (contd) October 2013 Page3
  5. 5. C.O.L.T . worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases There are also a minority of jurisdictions that hold OSHA violations are "per se" negligence or do not qualify as any evidence in negligence cases. The states that have chosen to exclude evidence of OSHA violations entirely are Arizona, California, Maryland, Michigan and Mississippi. As to federal circuits that allow OSHA violations to be entered as some evidence, these include the Third, Fourth, Eighth and Ninth Circuits. Understanding the Different Industries Governed by OSHA To decide which OSHA regulations are applicable in a negligence case, it is necessary to consider the type of industry in which an injury has occurred. The OSHA standards are divided into the following categories: General Industry, Construction, Maritime and Agriculture. The specific regulations under each industry "type" then convey the standards for inspections, general safety and health provisions, occupational health and environmental controls, fire protection and prevention, scaffolds, fall protection, use of equipment and information as to toxic and hazardous substances. As to the construction industry, there are also specific standards for excavations, steel erection, masonry construction and underground construction. October 2013 For plaintiffs who wish to use a citation in a negligence case, it will be necessary to consider the work environment in which the accident occurred. A plaintiff can then find the specific standards put forth by the Occupational Safety and Health Administration for this particular industry. For example, a plaintiff injured by a broken scaffold may wish to admit evidence of an employer's failure to maintain the scaffold according to OSHA regulation 1926 Subpart L. Under 1926 Subpart L, the Administration is very careful to state that certain scaffolds (those with direct connections to floors or roofs) must be able to hold at least four times the tipping moment by the scaffold. Proving "Duty Owed" in OSHA Cases In addition to setting forth standards for the maintenance of equipment and other aspects of workplace safety, the OSHA regulations also set forth the "duty owed" for fall protection systems. Statutes that discuss the "duty owed" by an employer, such as the duty to have fall protection in place, can be highly relevant for proving the duty element in a negligence case. This type of statute typically discusses the actions that an employer must take to improve the safety of a workplace. As to the fall protection systems statute, an employer must determine if (contd) Page4
  6. 6. C.O.L.T . worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases walking surfaces have structural integrity to support employees. There are also requirements that an employer add a guardrail to systems that have unprotected sides that are six feet or taller. If an employee was using equipment that did not contain this protective guardrail at the time of an accident, then photographs of the unprotected equipment or other evidence could be admitted to show how the employer failed to meet his or her requisite duty of care under the law. are intended to protect harm to employees on worksites. An independent contractor may still be considered to be an employee when OSHA violations are used, as courts have found that OSHA imposes a duty on employers to protect the safety of every employee at an employer's worksite. This means that even independent contractors are considered protected under the statute. Use of Other General OSHA Standards in Personal Injury Cases In jurisdictions that allow OSHA violations to be admissible in cases involving There are also other instances in which negligence per se, then a single violaOSHA standards may apply more gention could confer liability on an employ- erally in personal injury cases. Currenter in a personal injury case without a ly, there is no specific statute under need for additional evidence or proving OSHA that protects employees from other legal elements. In personal injury violence at the workplace. Rather, cases, negligence per se refers to a legal OSHA goes on to define a standard of doctrine that enables a plaintiff to prove care under a general provision that negligence by virtue of the violation of a states employers must provide employstatute or regulation. In this type of ees with a place of employment that is case, the plaintiff will need to prove that "free from recognizable hazards that are the defendant was in violation of the causing or likely to cause death or seristatute, there is a criminal penalty imous harm to employees." This means posed under the statute, an action that an employer does have a legal duty caused harm that the statute was into ensure that an employee can work tended to prevent and that the plaintiff within a worksite that is free of hazards was a member of the protected class that could cause him or her to experiunder the statute. ence serious injuries, physical harm or even death. Most jurisdictions that allow OSHA violations to be admitted in negligence per Those employees who have been subject se cases will require that the plaintiff by to intimidation, threats or other inan employee of the employer. This is stances of violence may have legal redue to the interpretation that these course available to them due to a violacourts have in which OSHA regulations tion of Section 5(a)(1). (contd) October 2013 PageS
  7. 7. C.O.L.T . worksite injury The Admission of OSHA Regulations contd. to Prove Negligence in Worksite Injury Cases Researching OSHA Regulations for Negligence Cases Those plaintiffs who are interested in asserting a legal claim against an employer can find a full listing of the OSHA regulations at http:/ / The website contains a "regulations" part that lists the black letter law for workplace standards. Plaintiffs can also work with attorneys who have a specialty in this field and understand how OSHA regulations may be used in a particular jurisdiction. A violation of an OSHA regulation may be a crucial aspect of proving one's personal injury case before a judge and jury, and a lawyer can help choose the appropriate regulations to use in one's case. Jonathan Rosenfeld is a personal injury attorney in Chicago and regularly handles serious construction accident cases on behalf of injured workers and their families. For more information on Chicago construction accidents and other personal injury matters visit http:/ / C.O.L T. Initiatives Legal arch An attorney managed site providing consumers access to value added information on a state based platform. Members of the Circle of Legal Trust may be allocated a state or city based website or category which provides the attorney an additional online marketing channel THEe ire leOFt:il LEGAL TRUST~ Attorneys assisting attorneys in search and social issues surrounding marketing your law firm online. COLT members meet regularly on Friday mornings and generously donate their time in helping their peers get better results from digital marketing efforts. October 2013 Page6
  8. 8. C.O.L.T . negative seo Negative SEO ny steven sweat The Ethical and Legal Implications of Negative Search Engine Optimization (SEO) Tactics For Attorneys and Their Agents As attorneys we have to face the fact that we are in a competitive business where we are marketing our services and trying to convince the public to hire us rather than another lawyer. The arena where this competition to gain clients is probably as fierce as any other is the internet. Like all business persons offering services for hire, attorneys can and, I believe, must assert their presence on the web. There are several ways to do internet marketing as an attorney which include buying placement through paid advertising the most popular of which are "pay per click" campaigns such as Google Adwords. The generic term for trying to gain placement with search engines through natural language searches in the so-called "organic" (i.e. non-paid listings) is called "Search Engine Optimization" (SEO), which has been broadly defined as follows: "the process of affecting the visibility of a website or webpage in a search engines natural search results." Can (and Should) Attorneys Engage in "Positive" Search Engine Optimization to Promote Their Online Content For the Purpose of Gaining Business? There are many different ways to engage in positive and ethical SEO practices as an attorneys. These include flrst and foremost providing good, original content targeted towards your potential clients. Providing good on-page October 2013 content will tend to draw your target audience towards your website and share this information with others which will increase trafflc and visibility and affect your "pagerank" with the various search engines like Google. Social media is also a great way to promote content on websites and blogs where a lawyer has provided good information that can attract potential clients. There are various other ways that a lawyer can "shine a light" on their content and attract the attention of the search engines and I think every lawyer can and should be constantly engaging in providing relevant, original content on a weekly if not daily basis for the purpose of spreading information about their practice and their expertise in their area of law. This is a long-term process that can take months or years to see results by way of higher search rankings but, once you have established a well designed, original site or blog and continue to promote it, it will no doubt begin to appear for searches relevant to a lawyer's practice. (Contd.) Page 7
  9. 9. C.O.L.T . negative seo NegatiVe SEO What is "Negative SEO" and Are Attorneys Or Their Agents Engaging in These Practices Unfortunately, the room for organic or natural search results appearing on the first page of Google or any other search engine is small and, some think, continuing to shrink. For example, on average, there are about 10 natural search result slots on the average first page of Google and sometimes less depending upon the number of local search results and sponsored listings for any given term. This has led some SEO practitioners and their clients to try to "knock off' the competition from page one so that their site appears higher. One way which, in my opinion, is a bit insidious, is to attempt to negatively affect the rankings of competitor's sites through various tactics including surreptitious linking of the competitor's site to other sites and resources which the search engines view as negative associations. This can lead to penalties from Google and other search engines which lower the competitor's site ranking. Unfortunately, in larger markets like Los Angeles and in the more competitive practice areas like personal injury or criminal defense, these tactics have begun to be employed by lawyers and the persons or businesses they hire to do SEO services. I have seen this in my practice and other practitioners have also seen more and more evidence of this in recent years. (contd.) ny stevensweat What Are the Ethical and Legal Rules Which May Affect A Law Firm or Their SEO Consultants if They Choose to Engage in "Negative" SEO? In my opinion (and the opinion of Google executives including Matt Cutts and others) negative SEO tactics are not only not very effective but, also completely unethical from a business standpoint. If a site owner proves that a competitor has been engaging in negative SEO practices, this would obviously give rise to potential civil liability against either the practitioner or their client (i.e the competing law flrm). Most every state has both common law and statutory causes of action for intentionally interfering with a prospective economic advantage. In California, for example, the tort is defined as follows: "The tort of intentional or negligent interference with prospective economic advantage imposes liability for improper methods of disrupting or diverting the business relationship of another which fall outside the boundaries of fair competition." Settimo Associates v. Environ Systems, Inc. (1993) 14 Cal..App.4th 842, 845. Additionally, California Business and Professions Code section 17200 provides for injunctive relief, restitution and attorney's fees for "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." (con td.) Steven M. Sweat is a founding partner of Glotzer & Sweat, LLP, a personal injury law firm based in Los Angeles, California. He is a proud member of the Circle of Legal Trust and Editor-in-Chief of the COLT Magazine. October 2013 PageB
  10. 10. C.O.L.T . negative seo Negative SEO Going beyond the potential for civil claims for injunctions or money damages, attorneys are also bound by rules of professional conduct related to advertising efforts. Most State Bar Associations or other regulating bodies have established these rules based upon the Model Rules of Professional Conduct set forth by the American Bar Association. The potential rules implicated in negative SEO practices. (contd.) By Steven Sweat tracking this issue and has taken many steps recently to adjust their algorithms to negate the effect of such campaigns and simply tools like disavowal of links can be used to fairly easily defeat negative SEO efforts. As with everything else in life, it is better to play fair and work hard! Resources and Citations: Model Rule 7.1: "A lavvyer shall not make a false or misleading communication about the lawyer or the lawyer's services" in relationship to any effort to advertise a lawyer's services. Model Rule 7.2: Requires any communications or publications related to advertising a lawyer's services include the "name and office address of at least one lawyer or law firm responsible for its content." Wikipedia: Search Engine Optimization: http://en. ation American Bar Association, Rules of Professional Conduct sponsibility/publications I model_rules_of_profession al_conduct/model_rules_of_professional_conduct_ta ble_of_contents.html Google Webspam Team Head, Matt Cutts Youtube Discussion of Ineffectiveness and Remedies for Negative SEQ: For all these reasons it is neither good business practice nor ethical legal practice, in my opinion, to engage in "negative SEO" tactics. There are so many positive ways to influence your own search rankings and exposure on the internet and a lawyer's time and resources should be devoted to building a positive brand and image. I t is not worth the risk of potential civil claims and ethical claims not to mention "bad blood" that is created among colleagues in the legal profession for the very limited chance that one's negative SEO techniques might actually knock a competitor off page one for some, limited period of time. Google has been VPS HOSTIING HOSTGATOR.COM • 1-866-96-GATOR • October 2013 GET STARTID NOW Page9
  11. 11. C.O.L.T. civility in depositions CiVilitY. in Depositions By Anthony Castelli The public's perception of an attorney is that they will demean and be derogatory to witnesses every chance they get. This article will examine why this is usually a misconception in the context of a deposition. During the course of a lawsuit the attorney for the other side will want to take the deposition of witnesses including the person bringing the lawswt. As I only represent injured parties, my clients always have much worry as to what goes on in a deposition, what they will be asked and how they will be treated by the defense attorney hired by the insurance company. I allay their fears by explaining the process, role playing and preparing them. Very few lawyers are abusive although some can be . That is why the legal profession led by State Bar Associations and Supreme Courts have moved for Rules of Civility and Professionalism.C In Ohio the professionl) alism commission is now over 20 years old. What is a Deposition and Why Combine Civility With It A deposition is a sworn statement with notice to the other side to be present and cross examine if they like. This is usually a question and answer session with a court reporter typing the testimony or a videographer recording the testimony. This is October 2013 distinguished from an affidavit which is simply a statement in writing that is sworn to be true in front of a notary. Depositions are tools to find out what knowledge witnesses have. It is part of the discovery process. Although in certain cases depositions can be introduced at trial. As depositions are usually held in lawyer's offices there is no judge present to enforce the rules. So there is no one there to police the lawyer's conduct , but themselves. That is why civility defined as: ucivility is claiming and caring for one's identity, needs and beliefs without degrading someone else's in the process," <2> Continued....
  12. 12. civility in depositions C.O.L.T. Civility in Depositions contel. ... is critical in a deposition setting. The Ohio Committee on Professionalism Civility in Deposition Guidance The Ohio commission has issues a list of does and don't regarding depositions. Although they do not have force of law they are in essence 3 guideline to civility regarding depositions.< ) Some of the do's they recommend are: . , If you have a problem with the other attorney ask to go off the record and go outside and try to agree on any problem issues. If you can not agree consider calling the Judge. (I consider this a bad idea as what Judge wants to be interrupted and make a decision off he cuff over the phone. ) The Ohio civil rules as do most jurisdictions have a procedure for handling abusive questions or ac4 tions. <) Some of the recommended dont's are: X Making 11 Speaking objections 11 which are often an attempt to coach the witness. Simply say object from and substance and you should be protected. X . , If you are going to use documents or photos try to have multiple copies so all attorneys get a copy. Insttuct a witness to refuse to answer unless the testimony is privileged, work product, or self incriminating or you believe the questioning is conducted to unreasonably annoy, embarrass, or harass. X Make rude and degrading comments to the witness or opposing counsel. . , Try to agree on a reasonable time limit for the deposition X Take a break with your client deponent while a question is pending . The obvious implication is that you will be coaching the witness on the answer. . , Cooperate on scheduling. D on't just schedule a deposition .Vithout calling your opposing counsel so they can coordinate their calendar. . , If a deposition needs to be rescheduled t1)' to cooperate to get it done unless your clients rights are adversely affected. . , Treat the other attorney and the witness with courtesy. But What if The Deponent Is Recalcitrant Sometimes the deponent will not cooperate. This is not a question of Civility but a question of what you can do under the law. You need to October 2013
  13. 13. C .O .L .T . civility in depositions Civility in Depositions contd keep control of the deposition. I f it gets too bad you should ask to adjourn the deposition and ask the court for sanctions. The video below is a rather comical example. Caution it has obscenity in it. Watch it at your own risk. Let me know if you ever had a deponent like this after you get done laughing. http:/ / Anthony Castelli is an Ohio personal injury trial lawyer with over 32 years experience and 25 civil jury trials. You can learn more about Anthony at . He handles accident and injury claims through out the State of Ohio and especially in Cincinnati, Columbus, Dayton, West Chester and Mason, Ohio Cita.tions: 1. 2. 3. 4. http:/ / /Boards/CP/default. asp http:// http:/ /·e.pdf October 2013 Page 12
  14. 14. C.O.L.T . social media Don't Destroy Your Persona/Injury Claim With Your "Personal" Social Media Posts By Seth Price By now, most everyone with a digital presence has heard the warning multiple times .... Whether you're a student, an employee, or a business operator, you're likely aware that posting status updates, tweets or photos that depict you acting irresponsibly could cause you unwanted trouble in your public life. Assuming you pay attention to your own social media activities and those with whom you're connected, it's relatively easy to determine which posts and statuses are free of risk and which might cause you problems. For most responsible people who've been using the Internet for more than a little while, all it takes is a little common sense. But in the legal system, and personal injury cases in particular, the threshold starts to become much smaller when we examine what sorts of behaviors are "safe." Certainly, most forward-thinking people would hesitate before tweeting about being intoxicated in public, or posting pictures that show them riding a motorcycle without a helmet. But if you're a personal injury plaintiff, these are far from the only avenues by which social media can jeopardize your claim to restitution. Depending on the details of your injury claim, status updates, photos and various other online activities even one that seem innocuous to October 2013 ~ ~ the everyday observer, can offer evidence that will destroy your case. As soon as you become part of a personal injury case, you enter a situation in which the opposing side will attempt to discredit your claim in any way possible. One of the greatest advantages to obtaining legal representation as soon as you can is to guard you against making mistakes that might imperil your claim. Most injury victims who've read a few lawyer sites know they should avoid making statements to insurance adjusters or representatives of the defendants. Most know they should be wary of discussing the details of their case with anyone other than their own attorneys. With such a large portion of our everyday lives now depicted online, however, even the most routine activities can be used to undermine your claim to compensation. Let's suppose, for example, that you break an ankle in a slip and fall accident. If you pose for a picture while being supported by a friend, the opposition might be able to argue .... (contd) Page 13
  15. 15. C.O.L.T . social media Don't Destroy Your Persona/Injury Claim With Your Personal Social Media Posts contd. in the future that you were able to stand on your own, thus calling into question the severity of your injuries. For noneconomic damages, such as pain and suffering, social media becomes even more potentially destructive. In these instances, even the most mundane details, such as your facial expressions in photos, can be used by the defendant's attorneys to argue that the accident did not cause as much damage as you are claiming to your happiness or the quality of your life. These tactics are not just hypothetical; they come up frequently in personal injury suits, often with case-altering results. Consider the story of a personal injury claimant in Gwinnett County, Georgia. The plaintiff, a 22-year old hairstylist who had broken an arm and suffered a laceration to her forehead in a car accident, said that her injuries had kept her away from work and caused her pain and suffering. The damage amount awarded by the jury, initially $237,000, was lowered to $142,000 after the defense presented the jurors with an account of the plaintiffs Twitter activities following her injury. She happily tweeted about being able to carry a purse with the arm that had previously been broken, and in further updates referred to an "epic weekend" spent in New Orleans and posted photos with friends on the beach. Both the defendant's and plaintiffs attorneys later agreed that her Twitter activities had damaged the credibility of her case. Even if you don't offer any evidence that can be used against you by the opposing lawyers, your social media activities can still threaten the value of your settlement. For example in the Georgia case above, the plaintiffs attorney, while insisting that none of his client's Twitter posts had contradicted the earlier statements she made about the injuries, admitted that her activities may have made the jury less sympathetic. ~ ~ ~.til • • • 000 es OC co The safest suggestion for personal injury victims is to stay off social media altogether until the case is successfully litigated, but unfortunately - even when presented with the stakes - not every claimant is willing to heed this advice. Especially for those in their twenties or younger who've grown up with the Internet, the prospect of deactivating their Facebook account or halting all tweets may be unthinkable. If after having had the possible consequences explained to them, your personal injury client is still (contd) October 2013 Page 14
  16. 16. C.O.L.T . social media Don't Destroy Your Personal Injury Claim With Your Personal Social Media Posts contd. unwilling to suspend his or her social media accounts, encourage them to at least audit them thoroughly. This Means: . . , Adjusting settings to make their profiles private and non-searchable. . . , Not accepting friend requests from anyone they do not know personally, and de-friending or blocking anyone they do not seriously trust. . . , Not uploading photos or videos any time between the moment of the injury and the resolution of the claim. If such items have already been uploaded, they should be taken down as soon as possible. . . , Being extremely wary about what their friends and acquaintances post, especially if those users have public profiles. Sometimes a friend may unknowingly tag a plaintiff in a post or photo that later gives the opposition the opportunity to discredit his or her claim. . . , Not discussing any element related to the case with anyone online. This obviously includes the discussions claimants have with their lawyers, but also includes any details pertaining to the accident, the injury, or the plaintiffs recovery. Posting anything about "recovering well," for instance, can cause serious problems later on when a judge or a jury is trying to determine what a plaintiff is owed. As more and more of our daily lives get wrapped up in the internet, there is less and less conscious thought that what we post online instantly and permanently enters the watchful eye of the public. With opposing attorneys seizing any opportunity to fight a claim, a conversation on safe, responsible use of social media needs to be a staple of the attorney-client relationship in a personal injury case. The minimal message a client should take away is this - don't post anything online if you don't want the other side to see it. Sources: Technorati Seth Price is a founding partner of Price, Benowitz LLP, a prominent personal injury law firm based in Washington, D.C. with offices in Virginia and Maryland. You can find more information on his law firm at: http:/ October 2013 Page 15
  17. 17. C.O.L.T . attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island Perhaps, the most significant By David Slepkow case regarding the ethical implications of out of state attorney advertising and attorney to attorney referral fees in personal injury cases derives from the little State of Rhode Island. In re application for Registration by the Law offices of James Sokolove, LLC, was a heavily fought out spat between a bunch of local Providence area injury lawyers against James Sokoloves' welloiled national advertising machine. The Ocean State Lawyers who battled James Sokolove all the way to the Top Tribunal in Rhode Island are some of the best known and experienced Injury Attorneys RI has to offer. Apparently, these big name local Injury players did not want Sokolove's Law Firm, the modern day Goliath, competing on their turf. The Sokolove Law Firm According to a 2009 Groundbreaking Sokolove expose by Boston Magazine: In 2007 Sokolove "paid over $20 million to promote . , his firm, twice as much as the nextbiggest spender." "Sokolove's firm is currently keeping . , tabs on some 10,000 open cases. Approximately 300,000 calls and emails come into his office each year, more than at any other firm ." October 2013 ~*l? * {1 {! tr ~ ~ p};J. *J;;t* Island Injury Synopsis of Rhode Lawyer's Battle to Keep James Sokolove From Opening a RI Law Firm: The lawyers in Rhode Island waged battle with James Sokolove on three fronts to keep him out of Rhode Island. The first front was an "initial complaint, filed with the Disciplinary Counsel and referred to the Disciplinary Board, alleged that Sokolove's television and print advertisements violated numerous provisions of the Rules of Professional Conduct, specifically those concerning attorney advertising when the lawyer is not licensed to practice law in Rhode Island." Id. This complaint was dismissed by a screening panel summarily. I d. (contd) Page 16
  18. 18. C.O.L.T . attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island After the dismissal, the second front was contd. immediately filed which was "a complaint with the UPLC, essentially alleging the same violations that had been raised before the disciplinary proceedings." Id. The UPLC is the Unauthorized Practice of Law Committee. Their efforts were thwarted once again. According to the RI Supreme Court decision: "The UPLC found that there was probable cause to proceed; however, Sokolove and his counsel met informally with the UPLC and reached an informal resolution agreement" Id. The third and final attempt played out on the front pages of the local newspapers and in front of the RI Supreme Court. In 2009, these Attorneys dug in a proverbial trench in in their last stand in front of the highest court in the state, The RI Supreme Court! The petition that was filed by these injury attorneys stated that they were, "objecting to the application of the respondent, James Sokolove (Sokolove), to register and practice law as a Rhode Island limited liability entity (Sokolove Law, LLC)" I d. In the end, Sokolove was allowed to open a personal Injury law firm in Rhode Island when the Court clearly and succinctly declared "We approve the application." Id. These accident lawyers appeared to have lost all the battles and the war when the Court rejected their arguments and allowed Sokolove's law firm to do business in Rhode Island October 2013 in January 2010. This litigation raises the question of whether the time and funds expended would have been better used competing with Sokolove rather than trying to ban his firm from the State. Court Opines on Fee Splitting between Lawyers and Attorney Advertising Most states, including Rhode Island, follow the Model Rules of Professional Conduct from the American Bar Association to some degree or another in drafting their own rules as to how attorneys may advertise and divide case fees. ABA Model Rule 1.5 (e) states as follows: " (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrange- ment, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable." (contd) Page 17
  19. 19. C.O.L.T . attorney fee sharing Ethical Rules on Attorney Advertising & Fee Sharing Get Tested in Rhode Island In a related rule on Attorney advertising, contd. Model Rule 7.2, the guidelines state: "(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may ... refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the exis- tence and nature of the agreement." The Rhode Island Rules of Professional Conduct are basically modeled after these rules. However, there is an additional provision (Rule 7.2(f)) which also states as follows: "Any lawyer or law firm who advertises that his or her practice includes or concentrates in particular fields of law and then refers the majority of cases in those fields of law or of that type to another lawyer, law firm or group of lawyers shall clearly state the following disclaimer: "1. 'Most cases of this type are not handled by this firm, but are referred to other attorneys[,]' or if applicable: 2 . 'While this firm maintains joint responsibility, most cases of this type are referred to other attorneys for principal responsibility."' October 2013 In the Sokolove Case, the Court stated "Clearly, the Rules of Professional Conduct anticipate and permit attorney-toattorney referrals; fee-splitting, however, is regulated more stringently to protect the client from unscrupulous practitioners." The court noted that Attorneys are prohibited from paying non-lawyers or anyone else for funneling business or "channeling professional work" but, that attorney to attorney fee splitting is basically permitted so long as it complies with the guidelines set forth in the rules stated above. The court allowed Sokolove to continue advertising in the state under these rules and continue to refer cases to other lawyers for a share of the fee. What Can Lawyers Glean From The Rhode Island Sokolove Case? The lesson to be learned in this instance is to carefully review your own State Bar guidelines on both fee sharing among lawyers and advertising. Many times, attorneys want to advertise for different practice areas in different geographic locations for the purpose of obtaining some portion of the attorney's fees derived from these cases. This can be a perfectly legitimate and ethical practice but, it is important to know if the jurisdiction in which the advertisements are placed has restrictions or requirements on fee sharing such as full disclosure to the clients, some (contd) Page 18
  20. 20. C.O.L.T . attorney fee sharing Ethical Rules on Attorney Advertising contd & Fee Sharing Get Tested in Rhode Island "joint responsibility" for the cases, etc. It is also crucial to know whether that particular state bar association requires disclaimers for such ads in the event that the referring attorney will not actually be handling the claim from start to finish. David Slepkow is an attorney in Rhode Island and a founding member of the Circle of Legal Trust. He writes on various legal topics of interest for family law, criminal defense and personal injury. His personal injury blogs can be found at the following URLs: and Editor's Hot Tip No Time To Blog!?! Try A Little Content Curation! No matter whether your goal is to rank well in the organic search results, stay fresh in the minds of your potential referral sources and clients or both, every attorney must continue to put out original, relevant content on the internet to be noticed. One of the best tools for doing this is blogging. The problem is that lawyers are not full time marketers and we have to also engage in the practice of law and, hopefully, have some time for family and a personal life. So, what can you do when you don't have an extra 2-3 hours in a week to research, draft, edit and publish a full length (700 to 1000 word) blog post? One solution I have found is what is termed "content curation" or what I call "blogging-lite". If you can find relevant news articles, blogs from other attorneys, information from resource websites and other information that is both interesting and relevant to your practice area, you can provide some, brief commentary or insight about the piece, share it on social media and it has almost as much effectiveness as a full blog post. This can be done on various platforms including your main practice blog, through content curation tools like http:/ / or setting up micro-blogs that are separate from your main practice blog on a platform like: http:/ or http:/ that can focus on a "niche" within your practice area. An example would be to find a recent news article about car safety or accident claims, provide insight from your own perspective as a personal injury lawyer, and publicize the piece through all your social media outlets like your firm Facebook page, your Google plus profile or business page, your Linkedin personal or business profile, etc. Here are some recent illustrations of what I have done: http:/ http:/ These types of posts take about 10 to 15 minutes as opposed to several hours for a full blog post. Because you are sharing the content of others and just commenting upon it, you can still get your message out even in a time crunch week! October 2013 Page 19
  21. 21. C.O.L.T . jury secrets revealed Information That Is Kept From Juries in Persona/Injury Trials: Secrets Revealed By Matt Dolman Many people assume that juries participating in a personal injury or wrongful death case have all the . information relevant to deciding the case on the mer1ts. That is not entirely true ... In fact, some information is deliberately kept away from the juries by the Courts. In Florida, there is a long standing rule that forbids a Plaintiff from telling a jury about the defendant's insurance coverage in personal injury trials. Carl's Markets, Inc. v. Meyer, 69 So.2d 789,793 (Fla.1953). Consequently, big insurance companies hide behind laws such as FL Statute 627.4136, the NonJoinder of Insurers Statute. Non-Joinder is defined as "omitting a party or cause of action that should have been included in the lawsuit." In a nutshell, the Non-Joinder Statute shields the insurance company's name and involvement during trial. In other words members of the jury are kept from any knowledge of the at fault driver's insurance coverage whatsoever. Plaintiffs can only be named in a personal capacity when suit is filed. For example, if the Defendant has USAA Insurance, USAA cannot be named as a party even though they are defending the claim. They can't be named as a October 2013 party even though they are paying for the attorney's fees, medical experts, and verdict. Before trial, this rule gives insurance companies another reason to fight injured people and rely on sympathy for their insured to ask for artificially lower settlements and force people to trial when they shouldn't be doing so. Even before a trial takes place, these insurance companies are determining how much money is being offered and not the person who caused the accident. At trial, the insurance companies use this law and portray the Defendant very sympathetically. It is believed that juries will be hesitant to award damages greater than that which the Defendant can afford. (contd)
  22. 22. C.O.L.T . jury secrets revealed Information That Is Kept From Juries in Persona/Injury Trials: Secrets Revealed contd. By Matt Dolman Verdicts are low so as not to bankrupt the Defendant, while the jurors are unaware that it is actually the insurance companies, and not the personal Defendant, who is paying the injured party. Because of this law, insurance companies can hire the same doctor repeatedly to conduct a compulsory medical examination of Plaintiff. These doctors are consistently used by the insurance companies, and almost always render opinions that favor defendants in litigation. Often an insurance company can hire a doctor and pay them over a thousand dollars for an examination that takes less than 30 minutes to perform. Some medical providers are hired hundreds of times within the same year by these insurance companies. Some earn more than half a million dollars a year performing litigation exams for Defendant insurance companies. Some doctors earn millions annually for their opinions in personal injury claims. A prime example of an insurance company's 'hired hand' would be Dr. Michael J. Katz, a New York orthopedist who conducted over a thousand medical legal exams every year for insurance companies. He was frequently hired to defend personal injury cases. It was revealed through a secret video that although Dr. Katz testified that his independent medical examinations took 10-20 minutes on a particular Plaintiff, the exam actually took less than 2 minutes. There was no way that Dr. Katz could've made all the findings he testified about within that short period of time. This doctor made over a million dollars a year just from his medical legal practice. Unfortunately, circumstances like what happened to Dr. Katz probably happen regularly in the context of medical expert/insurance company relations. So if you are ever called to jury duty on a personal injury or wrongful death case, remember these two things: 1) the doctor performing the examination on the injured party or testifying as to their injuries is likely paid by the insurance company to regularly give testimony in hundreds of cases and 2) the named defendant might be the driver, but they are not the person overseeing the lawsuit, paying the attorneys, paying the doctors, or even paying the injured party. That would be the Insurance Company. Matthew Dolman is a well-recognized personal injury trial lawyer based in the Tampa-St. Petersburg, FL area. He is one of the original founding members of the Circle of Legal Trust. For more information on him or his practice, The Dolman Law Group, visit his website here: http:/ October 2013 Page 21
  23. 23. C.O.L.T. advertisement Could A Penguin Pound Your Site to Pieces? They're cute and cuddly in our zoos, but on the web there's one Penguin who could kill your website with one swipe of his flipper. The Google Penguin update is Google's mass attack on sites with manipulative-looking link profiles. Google has been aware for a long time that many sites have employed manipulative and spammy linkbuilding techniques in an attempt to manipulate search rankings. Penguin is designed to detect these link patterns, and where it finds anything that looks suspicious, penalize the site with a severe drop in rankings. And that means less traffic .... and less business. Even worse, if your site has accumulated a lot of incoming links over the years, you may be in danger of a Penguin penalty and not even know it. And if you have been intentionally building links, no matter how careful you were, you might be in even worse danger. Until now all you could do is watch your rankings and traffic and hope Penguin overlooked you. Until Penguin Analysis Penguin Analysis is a new tool that lets you know your probable risk of being hit by a Penguin penalty. Using highly advanced statistical methodologies, we analyzed hundreds of sites with known Penguin penalties, and identified over 60 factors that likely contributed to their being hit. Penguin Analysis takes your site and your most important keywords and returns a Penguin Vulnerability Score (PVS). A high positive PVS may mean that your site has an above-average risk of getting hit by Google Penguin. But there's more: you can receive an optional report that will provide you with actionable steps you can take to reduce your PVS and decrease the likelihood that Penguin will stomp on your site. Get started on your Penguin Analysis today at http:/ / Penguin Analysis is an innovation of Remove'em, the leading Penguin recovery tool, and Virante Search Marketing October 2013
  24. 24. C.O.L.T. attorney marketing Effective Attorney Marketing in the Digital World for 2014 By Gerrid Smith and Beyond! You d?n't need me to tell you that marketing isn't what 1t used to be. Just a few decades ago, capital was all you needed to get your name out there. Drop a stack of cash into a national television ad campaign, and everyone would know your name in a few weeks. Run an ad through a few major magazines, and your target audience would think of you when they had need for your services. The strategy was simple. Pick one of about five advertising avenues, and then beat it to death with wads of cash. In today's world, there are no more marketing guarantees. The sheer quantity and vast diversity of media consumed by the public makes effective marketing more like performing a delicate surgery than bashing in a pinata. Throwing money at your marketing problems won't fix anything. The digital age requires a much craftier approach, and if you want to be effective, it starts with financial efficiency. Make Every Dollar Pay Every dollar you put into your marketing campaign is an investment. Every dollar needs to be tracked, scrutinized, and optimized so that you are making the smartest decisions possible with your limited capital. I spoke with a law firm the other day, one of the largest of its kind in the state where they practice. They have hundreds of city pages, welloptimized practice area pages, and a wide variety of niche websites. I asked the managing partner, "what is your conversion rate"? and he answered ' "honestly, Gerrid, I have no idea". I'm not talking about some solo law firm here; I'm talking about the largest firm of its kind in the state - over 13 attorneys working across the entire state. Five years ago, this was an acceptable answer - but not anymore. With tools like Google Analytics, Captorra, !fEyPhone call tracking, etc. we should constantly be tracking and acquiring a better understanding of our marketing campaigns, their overall effectiveness, and the specific ROI's they are producing. We have statistics available on a second-by-second basis, (contd) Page23
  25. 25. C.O.L.T . attorney marketing Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond! yet we're not maximizing, or in some cases even utilizing, these tools to their fullest potential. Establishing trust with resource centers and niche websites. No attorney has grasped this concept better than Jonathan Rosenfeld of When Jonathan develops a website, his goal is to create the most authoritative website in that niche. When Jonathan wants to target a niche on his website, such as "car accidents", he doesn't create a car accident page; he creates a car accident resource center, with 10-15 pages on the topic, in order to help establish himself as a car accident expert in the eyes of users (improving his conversions) and Google (improving his traffic)! Think about it this way: if your child was injured during the birthing process, would you hire a law firm that had a single page on his/her website about birth injuries, or would you hire the firm with an entire collection of birth injury articles and resources, designed to help you get through an incredibly difficult process? October 2013 Maximizing every dollar spent with conversion optimization Increasing your conversion rate increases the effectiveness of all marketing channels (social media, PPC, SEO ...etc). Place a dollar value on every visitor that comes to your website. These aren't bots reading your information, these are prospects that need your services! Why aren't you converting more visitors into clients? What can you do to better explain the services you provide and make your prospective client feel that your firm is the right firm for the job? Competition is increasing. Your competitors are getting smarter. Stop spending all your time getting people to your website, and start focusing on what you can do to get more people contacting your firm once they arrive. The time, energy, and resources you spend on the conversion process will maximize the ROI of every dollar you've already spent on getting people to your site. I've also noticed that conversion optimization needs to happen within the law firm as well. Most law firms only track leads that become intakes. What about the person who called your firm to ask about your experience with birth injury cases, but due to less-thanknowledgeable intake personnel, hung up and called a competing firm. (contd) Page 24
  26. 26. C.O.L.T . attorney marketing Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond! Do you track your inte:nal conver~ions? Do you put equal care Into arranging every step of the conversion process? You simply cannot afford any weak links. You can spend $50 per click to get someone onto your site and even maintain thousands of dollars in well-written copy across your site's pages, but if it takes you an entire 2 hours to follow up on a site-generated lead, recent studies say you've already lost that expensive lead! Look at your conversion rate from every angle and seek to maximize the effectiveness of your website, and subsequently, your law firm. Again, you simply cannot afford weak links in the conversion process. Don't forget mobile! Many of your prospective clients will never again type "Los Angeles personal injury lawyer" into Google on their desktop computer. Nowadays, that search will occur while they are sitting on their sofa browsing their iPad or iPhone. They might skip Google altogether and simply say, "Siri, fin~ ~e a personal injury lawyer that special~ze~ in birth injuries". Thanks to Apple s history as a market leader, this feature could become a complete game-changer for us. Regardless, long-tail searches are the future, as Google's latest update with Hummingbird demonstrated! We have known for awhile that mobile responsive is important, yet so few attorney websites are truly responsive. When a customer pulls up your site on his or her smartphone, it's not going to matter that your website cost you $so,ooo eight years ago. Poor usability on mobile devices will kill your chances of converting mobile traffic. Five years ago, ignoring mobile traffic might not . have hurt your bottom line. But today IS another story. In most law niches, 12-20% of Web traffic is mobile. 12-20%! We can't afford to wait any longer! A non-responsive website is, simply put, an extremely poor reason to miss out on even 10% of web-generated business. Develop a better sales process on your website SalesForce, the billion-dollar, publicly traded "anti-software" CRM company, perfected the sales process through the use of sales specialists. When you call the company, you don't speak to a minimum wage call-center tech, you speak to Joe, an intentionally-placed specialist tasked with delivering a compelling overview of the company's services. Joe's job is simply to better understand your needs and match those needs with the appropriate service. Once those needs have been uncovered - once Joe understands exactly why you are calling, not simply what you are calling about -you are then transferred to Susan, who specializes in solving (contd) October 2013 Page 25
  27. 27. C .O .L .T . attorney marketing Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond! . the specific problem you're ~acing. Depending on the level of service you require, a VP might even jump in on the call once you're ready to close the deal. Now, think about how we setup our websites for our visitors. Maybe someone lands on our homepage. Maybe they land on a practice area page or a city page. Is it possible for us to effectively detail our services on every page of the website? Of course not. That's like asking Joe to close in the above example. Joe knows the product, _b~t it's Susan job to fix your problem; Its the VP's responsibility to close the sale. So how can we harness this proven strategy for the purpose of internet marketing? 1) Understand that choosing a . lawyer is a big decision for your clients. Consumers are smarter now than ever before. They are used to researching everything before buying. The days of customers calling because they remembered your name from the TV jingle are long gone. 2) Don't give potential clients the hard close on every page of your website. Sure, include information about your firm and make your contact details readily available, but also understand that the average consumer will want more info from you than what can be provided on a single web page. October 2013 3) Treat the sub pages of your website as qualifying pages, both for Y?U and the consumer. The consumer IS trying to figure out if you can handle a certain practice area. They searched Google for "city brain injury lawyer" and found your website. The goal is that they will read through your brain injury page and arrive at the conclusion that you do indeed know a thing or two about brain injuries. 4) For the consumer that wants more information on "the firm" give it to them! End each page with your contact information and "f?r more information, read the 7 things that make our law firm different". This is where you send them to a "closing page." The closing page is Susan; it's the VP making your complete sales pitch. If the customer has clicked-through to this page, he or she is asking for the full argument. Communicate, in a personable, conversational tone, exactly what makes your firm qualified, unique an~ most importantly, the very best choi~e t? meet your customer's need. Wnte It like you would write a letter to a friend. Be genuine and sincere. Maybe even sign your name at the end of it. This is the page where you want the reader to understand who you are, resonate with the "why" of your firm (not just the what), and make the phone call. (contd) Page 26
  28. 28. C.O.L.T. attorney marketing Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond! Build your network and help others The last thing I want to stress is that you are NOT alone. There are literally hundreds of attorneys and legal marketers active on Google+, and they are all helping each other succeed in today's digital marketplace through the Circle of Legal Trust (COLT) . The age of digital marketing may come with an abundance of new challenges, but it also has its advantages. You can now connect and learn from attorneys across the U.S. to see what's working and what isn't. You can exchange guest posts, reciprocate shares and +l's, and so much more. If you're ready to take things to the next level, join the group, get active, and let's build a smarter law practice ... together. Gerrid Smith has been a law firm digital marketing strategist for over six years. He runs SmithSEO and just started a new blog covering various aspects of law marketing, Go Black Fin. Questions? You can reach him by email or on Google+ . Advertisement Ronnie Bincer, known as The Hangout Helper, has created a great membership site for those that want to learn from the best about hangouts. Signup to keep up: /HangoutMastery Ronnie Bincer **Hangouts are Magical, Let me show you why!** Ronnie on + RonnieBincer Add me to your Circles on Google Plus Stay up-to-date & Become a Hangout Master October 2013 Page27
  29. 29. C.O.L.T . negotiation & timing In the Art of Negotiation at Mediation, is Timing Everything? By Michael Bhline Can your case be settled or is there an impasse? In my practice, which is primarily a C~fornia tort law practice, one of the most rewardi~g, as well as harrowing experiences, can be a pnv~te, or judge mediation. Attorneys o~te?- ques~o? when a case does not settle in mediation. Th1s 1s is especially true when the parties spent significant money hiring a former judge, or professional mediator, since it drains resources that could be put to better use, like hotel fees for that far way jury trial in the case at bar. But why didn't the case settle? Was there one outstanding reason that the parties could not come to an agreement? In many cases it can be the old adage that "timing is everything," _which means that whether a case settles or not m mediation can be dependent on the timing of the negotiations. It is similar to dating. Yo~ do the dance, and at some point, the stars can line up. Much of the literature about mediation focuses on the negotiation aspect, rather than having information on the timing of the negotiations between the parties that can be key in it being a waste of time or having a successful outcome. Going into mediation with parties that believe there is little to lose and it will not be a real financial burden taking the case to court if they lose. T hen both parties will have little incentive to seriously negotiate a settlement. Often this is the case that the leo-al professional who is. expeo rienced in mediation should realize that lt may be of little benefit to attempt negotiating a settlement, since it is not the right time. John Hopkins University professor I. William Zartman said that the parties involved in negotiations will settle basically if they are in a "costly dilemma." (1.) Taking this advice, for attorneys in any practice area to be successful in settling through mediation, they will need to be able to October 2013 read the situation, and create a a situation that focuses on the strengths of their own case, and the weaknesses of the other side's claim. Once both sides basically come to detente that neither case is perfect, we can at least get the parties to focus on "being mentally ready" to resolve the claim, and come out of their trenches under a flag of parlay. Of course not all of these cases are the 2) "Rambo"C- type litigation as described above, but when money is involved, they often are. So I am writing this piece, under the assumption that both sides are ego driven, sharp, and competitive, no matter how civil they appear to be. After all, to be a high level litigator, in big dollar cases, both sides have already been through many hard fought campaigns, and are not new to discovery battles, motions to compel, and red faced arguments and speakin~ objections that often accompany many deposltions and oral arguments. This can often have both sides in a Mexican standoff. D efense counsel, insurance adjustor, and plaintiffs attorney, all wanting different things from the other, and refusing to budge. (contd) Page 28
  30. 30. C.O.L.T . negotiation & timing In the Art of Negotiation at Mediation, is Timing Everything? (contd.J Z artman has c_oined a Mutually Hurting Stalemate, wh1ch he says 1s the first thing to evaluate. This is one of the factors in determining when or if the parties are ready to reach a resolution. What this phrase relates to is when the parties involved are not able to come to a mutual decision and instead it is to overwhelming for both sides, even if there is not the same amount of anguish. There is the legal aspect that should be considered, the plaintiff and defendant, as to whether litigation will cause them to s~ffer pain. Conducting a cost-benefit analysis will help to determine the emotional, financial and the beneficial cost there may be in continuing litigation as compared to a medicated settlement. One of the times that a mediation can be difficult to have a successful resolution is when the plaintiff feels they have a strong case against a defendant. They have facts and documentation that are not able to be disputed, like in a car accident case, where the laws are very clear and th~re were multiple witnesses and video tape ev1dence. It may be possible that the defendant has little knowledge about traffic violations, October 2013 even though they know there are traffic laws. The defendant is not sure how he violated these laws and has never had any legal.dealings, and his or her hourly billing attorney 1s not being realistic about the overwhelming evidence against the client with the client, or the adjustor. The client may not even realize he or she has any personal asset exposure, even though it could be great. If that is the case, the insurance ~~mpany, nor the client feels the expense to li~gate ~e case would not be costly. Having t~s belief that the cost of litigation and averdict cost that is low, will generally make this case one that mediation is not going to be suc~essful~ until both parties realize that they will mcur s1zable economical and emotional cost during litigation. This can change if the plaintiff understands that there may be sizeable costs associated with litigation that could result in a deadlock. The ~~fen?ant must also recognize that this type of lit1~at1on may cause damage to their business, the1r personal life and have a costly verdict. !hen ~e att~rneys would be more triumphant mvolvmg the1r clients in mediation to resolve the case and reach a .... (contd.) Page 29
  31. 31. C.O.L.T . negotiation & timing In the Art of Negotiation at Mediation, is Timing Everything? (contd.J negotiated settlement. If the plaintiff realizes the expense of litigating this type of case, but the defendant does not recognize how costly it could be, then mediation may not have the desired effect for either party. The attorney for the defendant should inquire if they understand the mediation process and how it can be an advantage in some cases, rather than going through litigation. There are some defendants that do not completely understand the entire situation and in these cases the defendant may feel the plaintiff does not have a solid case and .villlower the amount they would settle the claim. Instead it can be a learning experience for both parties, especially the defendant, but mediation can help to resolve the case when both parties know what they can expect from the process as compared to going through the litigation process. The plaintiffs attorney can ask the defense what they expect prior to going into mediation to ensure that both parties have the same basic thoughts about this process. This can be done without inquiring what they are valuing the claim and the legal issues. Another thing the lawyer can do is to question the factual and legal issues, such as the plaintiffs attorney questioning the defense how strong they believe the defense case may be. The one thing that the plaintiff has on their side and their lawyer will know this, is the fact that out of 500 cases, they can generally count the number of verdicts that are in favor of the defendant. they can continue with litigation and gain the verdict they want, the parties are not usually ready for mediation to resolve the case. In cases where mediation is the best answer to resolve the case for the plaintiffs emotional and financial well being, or for the defense, the lawyers may be able to change the other sides opinion about heading to court. If one side feels they have strong facts, then it is essential to try to discover facts to counter the party's facts. By changing the outlook by either party by the other party's attorney can help the mediation process to resolve the case. But only when the parties are convinced this is a process that will be in their best interests, ratl1er than going to court and litigating. How Power Affects Mediation One of the things that attorneys for the plaintiff and the defendant will need to determine, before heading into mediation, is what power the other side believes they have to litigate the case. If the mediator successfully conveys this information to the other party, then the timing is ripe to settle. When one or even both sides feel they have more power than the other side, and feel they can litigate vvithout incurring a large expense. Then this party or both parties feeling this way are not ready to go to mediation to negotiate a settlement Even in cases where the plaintiff or defendant has a stronger litigation case, it still may be possible for meThe defense lawyer may expect that mediation diation to take place to resolve it and obtain a may lighten the demand and in this respect the settlement, if each side is able to evaluate the plaintiffs attorney may question just why the weakness and strength of their case. This point defense wants to use mediation as a way to re- is addressed by the University of Colorado solve the case. If issues are raised about whether Conflict Research Consortium (3.), stating when attorneys fees or other question may signal that the parties know which side is more powerful. the defense is not ready to attend mediation. In They still can generally negotiate a settlement the event that either side questions the process that matches the power structure at a lower or goes into it with the idea if they aren't pleased cost. (contd) October 2013 Page 30
  32. 32. C.O.L.T . negotiation & timing In the Art of Negotiation at Mediation, is Timing Everything? (contd.J If for instance the case involves a slip and fall accident, where there was minimal harm caused to the plaintiff when they were in a retail store. ~at the attorney(s) would know, is that there are surveillance cameras that would show when the store clerk had cleaned the floor. This could give power to the defendant, or the plaintiff, depending on what the tapes demonstrate, which may or may not be enough for the defendant to win going to trial. Even if the plaintiff did win, the verdict would be low perhaps and end up costing the defense less than the demands of the other side. What the plaintiff and defendant may also realize in this type of case, is that the cost to litigate at trial would be more costly than settling through a mediated settlement for the defense. In negotiating the defense could be at a disadvantage as far as the cost of litigation that the plaintiff can effectively use as a negotiating point. While each side has power in this type of situation, if they are ready to go through the mediation process, then it is possible to arrive at an equitable settlement. In the event the plaintiff or defendant does not realize the power they have, it will be up to their lawyer to use this leverage on their behalf. Mediation the Alternative to Litigation Mediation is an alternative to mediation that can work effectively when both parties are ready to negotiate. This is a less costly way to resolve a case, than going through the litigation process at trial. It is important for both parties to feel this can be a way to resolve the case, but if one side makes it clear they will not make any concessions, it is doubtful mediation will be successful. When the plaintiff and defendant go into mediation with a level of trust that the other party will have good faith in negotiating and that good communication is a part of the mediation. The best way for attorneys to approach a good balance is by finding things in common with the October 2013 other side to create an element of trust. By building a rapport it can make each side feel more comfortable during the mediation negotiations and then when the bottom figure is reached this can be believed, rather than continuing with the negotiations. Elemental Factors Knowing the factors that can show when a case is ready to enter the mediation phase is important, but it does not mean that it will just happen. It will be necessary for one or both sides to ensure the elements are in place to get into mediation. Professor Zartman addressed this in saying parties are not always ready and it is important to have evidence the case is ready for this action. Letting the other side know that there is an interest in going into mediation to reach a resolution is a step that can be taken. It is essential for success in negotiations for the parties to be ready to avoid a dispute that is at an impasse. There are ways the legal professional can help, by questioning if the parties have an interest in negotiating. If one of the parties is hesitant they can ask why to know if there is a way to change this opinion. In some cases the question may arise, if all of the parties need to be involved in the negotiation. Does the other side understand what litigation may entail and what might make a negotiated settlement enticing to the other party? Vhat might the financial and emotional costs be by not settling using mediation. Is there enough knowledge about your case and the other side's case to go into mediation to negotiate an equitable settlement? These are facts that should be known in order to be successful, if entering mediation to negotiate and resolve the case with enough trust on both sides for it to avoid issues that may cause mediation to be a failure. Page 31
  33. 33. C.O.L.T . negotiation & timing In the Art of Negotiation at Mediation, is Timing Everything? (contd.J I hope you liked this piece, and if you want to learn more about mediations, or tort law, feel free to contact me at: Ehline Law Firm PC 198 N Arrowhead Ave. #20 San Bernardino, CA 909-693-5417 Citations: 1. Changes in the Diplomatic [-<'unction and Theil: Impact on Intcmational Negotiations PDf-' 2. Adelson attomey out after judge cites 'Rambo litigation tactics' http:/ /www.t· smith/adclson-artomey-out-after-judge-cites-rambo-litigation-tactics 3. University of Colorado Conflict and Research Consortium http:/ /·ig.html Join our Regular Friday Morning Hangouts Sam PST https:/I October 2013 Page 32
  34. 34. If you want to be found, yesterday's SEO techniques won't cut it anymore. Google Semantic Search tells you what to do in the new web - in plain English.
  35. 35. C.O.L.T. editor's closing EditOr'S ny stevensweat closing "United we stand, divided we fall. Let us not split into factions which must destroy that union upon which our existence bangs." Patrick Henry - 1 789 This phrase epitomizes the philosophy of the Circle of Legal Trust. We believe that by helping our fellow lawyer, we build a firm foundation for us all from which we can build strong businesses that are both profitable and ethical. We hope you have enjoyed reading our first online magazine. We hope to publish an edition on at least a quarterly basis from here. If you are an attorney charged with marketing your law firm and would like the benefit of being able to "pick the brains" of other lawyers in your same boat regarding law office online presence, visit our website: http:/ / Or join us for a Friday morning Google hangout: https:/ / H C1rc LEGAL T October 2013 Page 33