By David C. Carr
Part of California’s new revised Rules of Professional Conduct is entirely new Rule 5.1(a) that addresses the responsibilities of a managing lawyer in a law firm. It provides,
By Lawrence A. Huerta
One of the most difficult jobs of an advocate is making a strong opening offer that generates a reasonable counter-offer. There are no standard formulas, so how is a strong and realistic opening offer calculated? In the context of litigation, when should an opening offer be conveyed? Conventional wisdom is to open with an extreme offer to test the other party and to explore their flexibility. Unfortunately, if the opening offer is perceived as extreme, it can lead to an early breakdown in negotiations. Another piece of conventional wisdom is to make a “throwaway” offer without any reasonable expectation of launching a productive negotiation and for the primary purpose of probing the other party’s willingness to negotiate in a certain range. In 26 years of mediating litigated cases, throwaway offers have been the source of many early stalemates or, at the very least, extensive time devoted to bringing the opening offer into a reasonable range. In the worst cases, throwaway offers can poison an entire negotiation by negatively influencing all remaining counter-offers, including final offers.
The case in question serves as a graphic reminder that ad hominem attacks on judicial officers, even seemingly clever ones, not only fail, but carry professional responsibility jeopardy
Gregg F. Relyea
Opening a Negotiation
A case must be strategically positioned before meaningful negotiation can take place. An invitation to negotiate can be perceived as premature if there are significant gaps in information about liability and damages. Negotiation can be viewed as too late if the parties have waited too long, costs have become prohibitive, or the parties have become entrenched in their positions.
By William Marshall
Transactional attorneys refer simply to “reviewing” a contract. However, I have identified different modes of review and found that thinking about them can be helpful in improving my review practices. The following are nine modes of review that I, to varying degrees, am adopting as I review an agreement. Some of them overlap and, of course, I very often perform multiple or even all of these modes in a single reading of an agreement. However if time permits, separate readings focused on one or two of these modes at a time can result in a better, more comprehensive assessment and markup of a document.
By Edward McIntyre
Benjamin Pavone represented his client in an employment-related lawsuit. The trial court denied class-action certification—a decision the court of appeal affirmed. The jury trial was successful, but perhaps a pyrrhic victory—$1,080 in economic damages; $7,000, noneconomic damages.
By Marta Manus
Life has a funny way of giving us exactly what we need practice in. Nearly nine years into my career as a class action attorney, I burned out big time. Years of living in a constant state of stress reaction mode in a toxic work environment led to multiple ER visits, a prescription for anxiety meds, chronic headaches, and constant muscle pain in my neck and shoulders. Ordinary tasks that used to take me a few hours began taking much longer and I found it increasingly difficult to focus on anything work-related. I was disengaged, disillusioned and dissatisfied. I wasn’t simply having a few bad days, this was serious burnout, and while I knew that something needed to change, I didn’t quite know how or what.
By Sheila A. Grela and June Hunter
For the second year, SDCBA Law + Technology Summit has provided stellar speakers addressing a wide-range of legal technologies. The summit provided details regarding necessary tools, skills and knowledge to help legal professionals from sole practitioners to those working in big law, to effectively incorporate legal technology into their workflow. Adriana Linares, Member Technology Officer for SDCB
You are a young prosecutor preparing for your first domestic violence trial. Fortunately it’s “only” a misdemeanor charge—domestic battery—Penal Code § 243 (c)(1) ...
By Christine Pangan
You’ve likely seen the hashtag, finding it funny, obnoxious, or even used it yourself. A quick survey of social media friends shows that #adulting or #adultingsohard has a range of definitions and uses, from “comically framing the drudgery of being a grown up” as a friend describes it, to referring to more challenging scenarios one faces as an adult such as caring for aging parents. A term mostly used by millennials, it can leave older generations scratching their heads wondering what is so difficult or noteworthy about an adult acting like an adult.
As traditional markers of adulthood are delayed well beyond 18 years old for many in their 20s to even 40s these days, “adulting” refers to behaving in an adult manner or doing activities associated with being a grown-up, with the element of perhaps not really wanting to or being proud of finally being able to do these things. Adulting includes being responsible (i.e. paying bills on time), having a career, buying a house or car, delaying instant gratification to achieve more mature goals, taking basic care of yourself and possibly others, and meeting typical “grown-up” obligations. In today’s legal world, what would #attorneyadulting look like?
Paying back student loans
For recent graduate Julie Houth, one marker of attorney adulthood is paying back student loans. “The transition from law student to lawyer can be a grueling journey because students must evolve from a student lifestyle to an adult lifestyle, like holding a 9 to 5 job and ultimately becoming a respectable professional in society,” Houth says. Many graduates of the past decade deferred their student loans for years after graduation due to difficulty in finding jobs or starting a practice that paid enough to make basic living expenses as well as repay loans. “Paying back student loans were probably delayed because millennials had other responsibilities like finishing up grad school and other bills like rent, food, and gas for their cars,” says Houth. Like the traditional adult financial responsibility of paying a mortgage, the ability to pay back student loans has become a form of “adulting” for many new attorneys.
Having an efficient, “grown-up” practice
Inefficient time management or the luxury of time-wasting seems to separate the less mature from the grown-ups. In the legal setting, there comes a time when many practitioners move from not having enough clients to finding it overwhelmingly challenging to keep track of everything going on with each client. As caseload increases, some new solos find that working from home or a coffee shop becomes increasingly difficult and would prefer (and can now afford) an actual office space. For sole practitioner Alara Chilton, “adulting” as an attorney includes examining your business systems and determining if you are implementing ones that are efficient. “For some attorneys, that may mean adding a law practice management system and/or an accounting system,” says Chilton. Other attorneys discover they need to hire someone to help rather than do everything themselves. But the business side is just one aspect of being a grown-up in the legal profession for Chilton who notes, “Adulting is not complete until you have become familiar with and are aware of your ethical obligations as an attorney.”
Meeting ethical obligations
Perhaps one of the least favorite parts of becoming an adult is no longer being able to do (or get away with doing) whatever you want due to adult obligations. As a law student or post-bar, you may have had some leeway, and working under attorney supervision were not expected to know all the rules. As an attorney, however, you now have ethical obligations. “For example, the new California Rules went into effect in November 2018 — in addition to rule revisions there are several new rules that also went into effect. Attorneys also have obligations under the State Bar Act,” Chilton says. “Ultimately, knowing your ethical obligations will result in a more rewarding and efficient practice, not to mention allow you the privilege of keeping your bar card.”
Being a responsible adult (lawyer)
Attorneys balance many duties to clients and the legal system that they may not have had previously. As one thoughtful attorney put it, “adulting” as an attorney includes keeping up to date with changes in laws and new precedent, zealously advocating for clients, maintaining client confidentiality, upholding one’s duty of candor to the tribunal, respecting all members of the legal profession, volunteering in the community and doing pro bono work, and adhering to ethical obligations under the Model Rules of Professional Conduct. In a largely self-regulated profession, attorney adulting is more than just growing up and having a job to take care of yourself. It includes taking on the grave responsibility of upholding our legal system through being competent, ethical, and diligently promoting justice for all members of society.
Christine I. Pangan is a lead attorney at the Legal Aid Society of San Diego and Co-Editor of San Diego Lawyer Magazine.
