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The Art of Negotiation in Mediation Is Timing Everything? Negative SEQ

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Effective Attorney Marketing for 2014

Attorney Fee Sharing Civility in Depositions

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C.O.L.T . contents

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

C. ·1· . D . . 10 IVI 1ty In epos1t1ons ... .. .. ... .. .. .. .. .. ... .. ... ... ..... .... .. .. .. ... .. .. .. .. ... . . 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 T. . E h . ? 28 s 1m1ng ver-yt 1ng ..... ..... ... ..... ..... ... ..... .... .. .. ... .. .. ... ... ..... ..... .

Michael Ehline

Editor's Closing .. ... ..... ..... ... .. ... .. ... ................ ..... ..... ... ..... ..... ... .. . 33 Steven Sweat

October 2013 Page 1

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:/ /web-o-trust.org.

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

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 healthful working conditions and to (OSHA) was passed by Congress in 1970 preserve our human resources." for the purpose of ensuring a safe work-place 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.

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.

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

October 2013

Admissibility of OSHA Regu­lations in Work Accidents

And Construction Site Injury Cases

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)

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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)

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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.

In jurisdictions that allow OSHA viola­tions to be admissible in cases involving negligence per se, then a single viola­tion could confer liability on an employ­er in a personal injury case without a need for additional evidence or proving other legal elements. In personal injury cases, negligence per se refers to a legal doctrine that enables a plaintiff to prove negligence by virtue of the violation of a statute or regulation. In this type of case, the plaintiff will need to prove that the defendant was in violation of the statute, there is a criminal penalty im­posed under the statute, an action caused harm that the statute was in­tended to prevent and that the plaintiff was a member of the protected class under the statute.

Most jurisdictions that allow OSHA vio­lations to be admitted in negligence per se cases will require that the plaintiff by an employee of the employer. This is due to the interpretation that these courts have in which OSHA regulations

October 2013

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

There are also other instances in which OSHA standards may apply more gen­erally in personal injury cases. Current­ly, there is no specific statute under OSHA that protects employees from violence at the workplace. Rather, OSHA goes on to define a standard of care under a general provision that states employers must provide employ­ees with a place of employment that is "free from recognizable hazards that are causing or likely to cause death or seri­ous harm to employees." This means that an employer does have a legal duty to ensure that an employee can work within a worksite that is free of hazards that could cause him or her to experi­ence serious injuries, physical harm or even death.

Those employees who have been subject to intimidation, threats or other in­stances of violence may have legal re­course available to them due to a viola-tion of Section 5(a)(1). (contd)

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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:/ /www.osha.gov. 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.

Legal

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:/ /www.rosenfeldinjurylawyers.com

C.O.L T. Initiatives

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

C.O.L.T . negative seo

Negative ny steven sweat

SEO 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.)

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C.O.L.T . negative seo

NegatiVe SEO (contd.) ny stevensweat

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.

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

C.O.L.T . negative seo

Negative SEO (contd.) By Steven Sweat

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.

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."

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

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October 2013

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:

Wikipedia: Search Engine Optimization: http:// en. wikipedia.org/wiki/Search_engine_optimiz ation

American Bar Association, Rules of Professional Conduct -http:/ /www.americanbar.org/ groups/ professional_re 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: http:/ /www.youtube.com/watch?v=HWJUU-gSU_I

GET STARTID NOW

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C.O.L.T. civility in depositions

CiVilitY. in By Anthony Castelli

Depositions 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.Cl) In Ohio the profession­alism 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 ....

C.O.L.T. civility in depositions

Civility in Depositions con tel.

... 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 guideline to civility regarding depositions. <3)

Some of the do's they recommend are:

., Cooperate on scheduling. Don'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.

., If you are going to use documents or photos try to have multiple copies so all attorneys get a copy.

., Try to agree on a reasonable time limit for the deposition

., Treat the other attorney and the witness with courtesy.

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., 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 ac­tions. <4)

Some of the recommended dont's are:

X Making 11Speaking objections11 which are often an attempt to coach the witness. Simply say object from and substance and you should be protected.

X 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.

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.

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

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:/ /youtu.be/I_fxNu_MRCo

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 W\vw.castellilaw.com . 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. http:/ /www.instituteforcivility.org/wbo-we-are/what-is-civility 2. http:/ /www.supremecourt.ohio.gov /Boards/CP /default. asp 3. http:// www.supremecourt.ohio.gov /Publications/Depositions.pdf 4. http:/ /www.supremecourt.ohio.gov /LegalResources/Rules/ civil/ CivilProcedUl·e.pdf

October 2013 Page 12

C.O.L.T . social media

Don't Destroy Your Persona/Injury Claim

With Your "Personal" Social Media By Seth Price Posts

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

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.

October 2013

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.

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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)

Page 14

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 pro­

files 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:/ jwww.pricebenowitzlaw.com/

October 2013 Page 15

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 next­

biggest spender."

"Sokolove's firm is currently keeping ., tabs on some 10,000 open cases. Ap­

proximately 300,000 calls and e­mails come into his office each year, more than at any other firm."

October 2013

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*J;;t* Synopsis of Rhode Island Injury

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

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 immediately filed which was "a com­plaint with the UPLC, essentially alleg­ing the same violations that had been raised before the disciplinary proceed­ings." I d. 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 reso-lution 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

contd. 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 arrange­ment, including the share each lawyer will receive, and the agree­ment is confirmed in writing; and

(3) the total fee is reasonable."

(contd)

Page 17

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, 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 exis­tence 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

contd. 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

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: www.ripersonalinjurylaw.com and www.rhodeislandpersonalinjuryattorneyblog.com

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:/ /www.scoop.it or setting up micro-blogs that are separate from your main practice blog on a platform like: http:/ jwww.blogspot.com or http:/ jwww.wordpress.com 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:/ jwww.scoop.it/t/ california-car-accident-and-injury-attorney http:/ jvictimslawyercalifornia.blogspot.com/

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

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)

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:/ jwww.dolmanlawgroup.com

October 2013 Page 21

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October 2013

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

C.O.L.T . attorney marketing

Effective Attorney Marketing in the Digital World for 2014 and Beyond!

contd.

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 RosenfeldlnjuryLawyers.com. 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 in forma­tion, 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

C.O.L.T . attorney marketing

Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond!

We have known for awhile that mobile Do you track your inte:nal conver~ions? responsive is important, yet so few at-Do you put equal care Into arranging torney websites are truly responsive. every step of the conversion process? When a customer pulls up your site on You simply cannot afford any weak his or her smartphone, it's not going to links. matter that your website cost you

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!

October 2013

$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) Page 25

C .O.L.T . attorney marketing

Effective Attorney Marketing in the contd. Digital World for 2014 and Beyond!

. 3) Treat the sub pages of your web-the specific problem you're ~acing. De- site as qualifying pages, both for Y?U pending on the level of service you re- and the consumer. The consumer IS quire, a VP might even jump in on the trying to figure out if you can handle call once you're ready to close the deal. a certain practice area. They

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

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

C.O.L.T. attorney marketing

Effective Attorney Marketing in the Digital World for 2014 and Beyond!

contd.

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.

October 2013

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+ .

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Page27

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. Then both parties will have little incentive to seriously negotiate a settlement. Often this is the case that the leo-al professional who is expe-o . 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 "Rambo"C2-) 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. Defense counsel, insurance adjustor, and plaintiffs at­torney, all wanting different things from the other, and refusing to budge.

(contd)

Page 28

C.O.L.T . negotiation & timing

In the Art of Negotiation at Mediation, is Timing Everything? (contd.J

Zartman has c_oined a phra.se 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

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.

The defense lawyer may expect that mediation may lighten the demand and in this respect the plaintiffs attorney may question just why the defense wants to use mediation as a way to re­solve the case. If issues are raised about whether attorneys fees or other question may signal that the defense is not ready to attend mediation. In the event that either side questions the process or goes into it with the idea if they aren't pleased

October 2013

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 me­diation to take place to resolve it and obtain a settlement, if each side is able to evaluate the weakness and strength of their case. This point is addressed by the University of Colorado Conflict Research Consortium (3.), stating when the parties know which side is more powerful. They still can generally negotiate a settlement that matches the power structure at a lower cost. (contd)

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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.

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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-' http:/ /www.pin-ncgotiation.otg/uscrElcs/imagcs/pinpoints/PP26.pdf

2. Adelson attomey out after judge cites 'Rambo litigation tactics' http:/ /www.t·eviewjoumal.com/jobn-1-smith/adclson-artomey-out-after-judge-cites-rambo-litigation-tactics

3. University of Colorado Conflict and Research Consortium http:/ /www.colorado.edu/conflict/indcx_ot·ig.html

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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:/ /www.circleoflegaltrust.com Or join us for a Friday morning Google hangout:

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October 2013 Page 33