Industry Insight

A year or so ago, I became a full-time mediator. While mediation had been a routine component of my 35-plus years as a trial lawyer, conducting mediations as the mediator is a strikingly different role and has taught me some valuable lessons. Many of these lessons I anticipated because of the fine formal (shoutout to Tracy Leissner and Robert Hughes and the University of Houston Law Center’s 40-hour training program) and informal training I did beforehand, as well as the countless mediations in which I participated as an advocate. But some surprised me, and they may surprise other new mediators—as well as attorneys who are new to mediation. Here are six mediation lessons I want to share. A Dispute Can Settle Early On A case—even a dispute that has yet to be filed—really can settle before the parties spend substantial sums in discovery and motion practice. There is a caveat: The parties and their lawyers must put work into the mediation process. I was skeptical at first, but I have seen it happen firsthand. Trying to resolve disputes early on—the process is now often called early dispute resolution or EDR—seems to be gaining popularity. That is no surprise as litigation continues to get more and more expensive. When I have seen it work, I have noticed at least three things were present: The lawyers had convinced their clients (or maybe it was vice versa) to come to mediation with open minds and positive attitudes about how to reach an early resolution. The parties and their lawyers worked diligently during the mediation process to bridge material information gaps. The lawyers (and therefore their clients) had good handles on their claims, defenses and potential damages. Preparation Matters When a lawyer shows up to the mediation having provided her client with a true assessment of the risks of the case, she has served the mediation process and her client well. When a lawyer shows up without having assessed the risks, he has potentially hindered the settlement process. As a young trial lawyer coming out of Baylor Law School’s Practice Court and starting as an associate in the premier trial firm of Strasburger & Price, I was taught to draft a jury charge as soon as you knew enough about your case and then assess the chances of winning the answers that you want. That meant that you were also assessing the chances of winning or losing issues as a matter of law. Did I—and do we trial lawyers—always do that? Of course not. But the more I can tell a lawyer at mediation has done that kind of work, the better I feel about our chances of success on the day of mediation. One Person Can Derail a Mediation Even when the parties are adequately prepared, one “rogue” lawyer or party can derail a mediation. To help avoid this, I have learned to do as much as possible before the mediation, or at least at its very beginning, to unmask that person. It is usually not hard to spot him or her. What is harder is predicting whether that person’s attitude will change during the day. I try to learn more about the person’s motivation for being difficult. Sometimes it is emotion. Sometimes it is an unrealistic view of the case. Sometimes it is a person being overly aggressive for aggression’s sake. The more I learn, the better I can enlist other participants to help me bring the rogue in line. An Opening Session May Be Productive—or Not I have learned to handle whether to have an opening session on a case-by-case basis. By the end of my days as a trial lawyer handling mostly large, complicated commercial disputes, it was customary to skip an opening session. While training to mediate full time, I questioned whether skipping an opening session was always the right thing to do. Sometimes it absolutely is, but sometimes it is not. I have watched opening sessions do their part to advance the parties more quickly to a settlement. I have also skipped opening sessions only to get together later in the day to tackle an issue that we could have taken care of upfront. But I have also had mediations where certain folks should not have been in the same room together. So, I have learned to address whether to have an opening session in my pre-mediation calls, and I have found myself encouraging opening sessions when I notice some reason for participants to eyeball each other at the beginning of the day. Pre-Mediation Calls and Video Teleconferences Matter Pre-mediation telephone calls and/or video teleconference sessions are a valuable part of the mediation process. A year ago, I wondered how many busy lawyers would take the time for such a call. So far, every one of them have chosen to. We have used them to do many things, such as identifying missing information needed for effective negotiations, encouraging a more fulsome risk assessment, discovering the potential rogue, discussing whether an opening session makes sense or just getting to know each other if we did not already. These calls help set the stage for a successful mediation. Following up Can Make the Difference Finally, lawyers appreciate persistent follow-up when a settlement was not reached the day of mediation. (No, I’m not batting 1000%.) By persistent, I mean following up until the lawyers tell me to go away. I have learned that such follow-up may lead the parties to realize that much of the groundwork for a settlement was already laid, and we may be able to achieve after the mediation what we were not able to do the day of mediation. Originally published in The Texas Lawbook—December 2024 and reprinted with permission. 

CALIFORNIA SUPREME COURT Civil Procedure California Capital Insurance Company v. Hoehn (2024) _Cal. 5th_, 2024 WL 4812045: The California Supreme Court overruled the rule in Rogers v. Silverman (1989) 216 Cal.App.3d 1114 (Rogers) and its progeny that Code of Civil Procedure section 437.5’s two-year time limit applies to Code of Civil Procedure section 473(d) motions to vacate a judgment that is void, stating that procedural hurdles that are unnecessary to the fair adjudication of default judgments should not stand in the way of the vindication of a defendant’s due process rights. In the underlying case plaintiff attempted to serve defendant in 2010 and allegedly obtained substituted service on defendant’s girlfriend. In 2011 plaintiff obtained a default judgment of $486,528 against defendant. In 2018 plaintiff assigned the default judgment rights, and in 2020 after the judgment creditor tried to garnish defendant’s wages. Defendant then filed his motion to set aside the default judgment which the trial court denied based upon Rogers, and the Court of Appeal affirmed. (November 18, 2024.) North Am. Title Co. v. Superior Court (2024) _ Cal.5th _ , 2024 WL 4599235: The California Supreme Court reversed the decision of the Court of Appeal regarding disqualification of the trial judge. The Court of Appeal ruled that the nonwaiver provision set forth in Code of Civil Procedure section 170.3(b)(2) precluded waiver of a party’s right to seek judicial disqualification when the claim would otherwise be barred by the requirement in section 170.3(c)(1) that a claim for disqualification should be at the earliest practicable opportunity. The Supreme Court disagreed, concluding that the nonwaiver provision of section 170.3(b)(2) applies only in circumstances of judicial self-disqualification, where a judge has determined himself or herself to be disqualified and, absent an explicit waiver of disqualification by the parties, would recuse himself or herself from the proceedings. (§ 170.3(a)(1) & (b)(1).) The nonwaiver provision is inapplicable when a party seeks disqualification by filing a written verified statement of disqualification. (October 28, 2024.) CALIFORNIA COURTS OF APPEAL Attorney Fees Ofek Rachel, Ltd., et al. v. Zion (2024) _ Cal.App.5th _ , 2024 WL 4849692: The Court of Appeal affirmed the trial court’s order awarding defendant Chaim Cohen (Cohen) to pay the judgment creditors $185,095.20 for their attorney fees and $8,964.71 in costs. Cohen was not involved in the original lawsuit leading up to the judgment. In a post-judgment debtor’s examination and other discovery, the judgment debtor admitted that his friend Cohen was paying all of the judgment debtor’s expenses, often with American Express credit cards in Cohen’s name. Cohen then became involved in post-judgment enforcement proceedings. The Court of Appeal concluded that under Code of Civil Procedure section 1218(a), a trial court has authority to impose attorney fees against a person who violated a court order compelling discovery issued during the post-judgment enforcement proceedings—even though that person was not a party to the lawsuit giving rise to the judgment being enforced. (C.A. 2nd, November 21, 2024.) Civil Procedure Gorobets v. Jaguar Land Rover North America, LLC (2024) _ Cal.App.5th _ , 2024 WL 4456864: In this important new case dealing with CCP 998 offers, the Court of Appeal affirmed the trial court’s order holding that because defendant had sent one valid CCP 998 offer that plaintiff rejected, and plaintiff failed to get a more favorable result at trial, plaintiff’s costs and attorney fees were limited and defendant was awarded its post-offer costs. The twist in this case was that defendant made two simultaneous 998 offers that it labeled as “alternative offers.” After plaintiff leased a new 2016 Land Rover LR4 from defendant, he experienced numerous defects and nonconformities that defendant was unable to repair. Plaintiff sued defendant in a lemon law case under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) and alleged (1) breach of express warranty, (2) breach of implied warranty, and (3) breach of the duty to return the vehicle from service without defects within 30 days. Defendant sent two simultaneous 998 offers. One was a lump sum offer, offering to pay plaintiff $85,000.00 to return the vehicle with free and clear title. There was no dispute that this was a valid CCP 998 offer. The other offer was a category-based offer with a dispute resolution mechanism where defendant agreed to pay undisputed damages and allowed plaintiff to pick a dispute resolution process to resolve disputed damages. For both alternative offers defendant offered to pay plaintiff’s attorney fees and costs in either (1) a flat amount of $7,500 or (2) an amount to be determined by the court. The Court of Appeal concluded that simultaneous offers to the same party are not effective under CCP 998 because such offers do not allow the trial court to determine whether a judgment is more favorable than the offer. The Court of Appeal also concluded that category-based offer was invalid. However, the Court of Appeal ruled that when an offeree makes two simultaneous offers, one of which is invalid and the other valid, this does not make the independently valid offer ineffective. The trial court properly evaluated the valid 998 offer and concluded that plaintiff was limited to recovering his pre-offer costs and attorney fees and was required to pay defendant’s post-offer costs. (C.A. 2nd, October 10, 2024.) Haidet v. Del Mar Woods Homeowners Association (2024) _ Cal.App.5th _ , 2024 WL 4677484: The Court of Appeal affirmed the trail court’s order entering a dismissal with prejudice against defendant, and awarding defendant $48,229.08 in attorney fees. The trial court entered these orders due to plaintiffs actions in filing a first amended complaint that did not name the original sole defendant (instead naming other defendants), and later seeking to dismiss the original defendant without prejudice, after the trial court had sustained defendant’s demurrer with leave to amend as to two causes of action and sustained the demurrer without leave to amend as to the other cause of action, in plaintiffs’ action alleging causes of action for breach of contract, breach of fiduciary duty, and declaratory relief against defendant. After plaintiffs filed their first amended complaint defendant requested that it be dismissed with prejudice. Plaintiffs could have dismissed defendant without prejudice by filing a dismissal before filing the first amended complaint, or by naming the defendant in the first amended complaint and then dismissing that defendant without prejudice. Plaintiffs failed to exercise either option. Instead, plaintiffs elected to amend their complaint and then, several days later, sought to dismiss, thereby forfeiting the right to voluntary dismissal without prejudice. (Code of Civil Procedure, section 581(f)(2).) The trial court had discretion to dismiss with prejudice or without prejudice, and it did not abuse its discretion in dismissing with prejudice. The trial court did not abuse its discretion in awarding defendant its attorney fees. (C.A. 4th, November 5, 2024.) Real Property JCCrandall v. County of Santa Barbara (2024) _ Cal.App.5th _ , 2024 WL 4599704: The Court of Appeal reversed the trial court’s order denying a petition for a writ of administrative mandate seeking to overturn respondent’s decision granting a conditional use permit (CUP) for the cultivation of cannabis where a private easement over a neighbor’s land was the only access to the land subject to the CUP. The Court of Appeal disagreed with the trial court and reversed its order because under federal law cannabis is illegal in California and everywhere else in the United States. The servient tenant’s objection on this ground was sufficient to defeat the CUP. (C.A. 2nd, October 29, 2024.)

Many law firm owners and managers want to grow or scale their firms. If they can increase their firm, they can pay themselves and their employees more. With more income, law firms can do other great things, like buy new equipment, obtain better benefits, and maybe even expand their law firm. It can even allow a law firm manager or owner to retire sooner. What’s the Average Growth Rate? Many law firm owners and managers have no idea what the average growth rate of a law firm is when trying to grow it. Knowing the average growth rate can allow a law firm to have reasonable expectations. By having realistic expectations, law firms can budget and plan accordingly. According to a recent American Bar Association article, the first half of 2024 was relatively strong for law firms, with an average growth rate of 11.4 percent. In 2023, the average growth rate was less than half at 4.4 percent. The article says: “The rate growth was highest—at 10%—for firms among the nation’s top 50 for gross revenues. Those firms also had the highest revenue growth, with a 13.8% increase.” What Do These Numbers Mean for Your Firm? Average growth rates do not necessarily mean a lot for every law firm. Some law firms exceed national averages, while others fall below them. However, knowing the averages can be a good guide for budgeting and planning as a starting point. If a law firm plans to exceed these averages, it will likely have to be aggressive. Being aggressive likely means opening new satellite locations, increasing the advertising budget, and hiring attorneys and staff to handle the increased workload. Scaling a law firm can be a risky endeavor. A law firm owner or manager may be in a tough spot if it does not work. But if it works, the reward can be significant. It is often true that it can be easier to grow a law firm out of the gates quickly, but that growth can slow down the larger the law firm because the firm can become hard to manage. For example, a law firm that can double its income in its early stages will find that almost impossible to replicate once the firm reaches seven or eight figures. There are law firms that exceed these expectations each year and receive awards from organizations such as Law Firm 500. However, it can be hard to exceed national averages if a law firm does not open new locations, advertise, hire with a degree of speed, and have the proper infrastructure. Some law firm managers and owners may try to scale their firms unsuccessfully. Many do not succeed because they lack a solid marketing plan, do not budget carefully, or do not have a process for making good hires. Rising Costs Are Also an Issue Rising costs and inflationary factors can also impact law firms. Even if a law firm increases its gross revenues, the cost of just about everything increases for law firms. Increasing costs include insurance, rent, taxes, salaries, and advertising. Thus, to scale a law firm successfully, the growth rate does have to exceed inflationary factors. However, when a law firm’s revenue numbers become static or even decrease, with increasing costs, many law firms can shrink when considering rising prices. Thus, many law firms will want to aspire for some growth to maintain the status quo.

Having served as a mediator for over 30 years, I have observed in-house counsel trying, with varying success, to manage outside counsel and others in the mediation process, including the neutral. Optimal results in mediation are not assured simply by retaining highly qualified outside counsel and mediators. As a result of my experience, I offer in-house counsel the following practical tips to make better use of these chosen professionals to achieve more favorable outcomes for your company. These tips also provide guidance to outside counsel and other neutrals as they seek to work with in-house counsel and each other to improve their own effectiveness as well as that of each participant in this important dispute resolution process. One of the most critical steps in optimizing use of outside counsel and mediators is to establish clear roles and expectations from the outset. This clarity helps prevent misunderstandings, streamlines the process and helps everyone work toward the same goals. When working with outside counsel, start by drafting a detailed negotiation strategy that outlines: The scope of the negotiation strategy Key performance indicators (KPIs) and success metrics Reporting requirements and frequency Budget constraints and billing procedures Decision-making authority and escalation processes Make clear to your mediators: The desired outcome of the mediation from your company’s long-term business perspective Any non-negotiable terms or deal-breakers The level of settlement authority granted to the mediation team Whom you may need to consult to obtain different authority, either as to amount or non-monetary terms By setting these parameters early, you create a framework for accountability and efficiency. Regular check-ins to review and adjust these expectations as needed will help maintain alignment throughout the process. Effective communication is the cornerstone of any successful litigation management strategy. As in-house counsel, you play a pivotal role in facilitating open and transparent communication between all parties involved. Implement the following practices to enhance communication: Schedule regular status meetings with outside counsel to discuss case progress, strategy adjustments and any emerging issues. Establish a secure, centralized platform for document sharing and collaboration. This procedure helps provide all parties with access to the most up-to-date information and reduces the risk of miscommunication. Encourage direct communication between outside counsel and key stakeholders within your company when appropriate. This action can help outside counsel better understand the business context and tailor their strategy accordingly. Create a clear escalation protocol for urgent matters or decisions that require immediate attention. Consider organizing and participating in pre-mediation conferences with the mediator to discuss case dynamics, potential roadblocks and strategies for moving negotiations forward. By fostering a culture of open communication, you will be better positioned to address challenges proactively and capitalize on opportunities as they arise. Many in-house counsel make the mistake of viewing mediation as a last resort or a mere formality before trial. However, engaging with a mediator early in the dispute resolution process can provide significant advantages. Consider the following approaches: Involve the mediator in case assessment: A skilled mediator can offer valuable insights into the strengths and weaknesses of your case from a neutral perspective. This can help you refine your strategy and set realistic expectations for settlement. Use the mediator to facilitate information exchange: In complex cases, mediators can help structure and oversee the exchange of key information between parties. This procedure can streamline the discovery process and potentially lead to earlier resolutions. Explore creative solutions: Mediators often have experience with a wide range of dispute resolution techniques. Engaging them early allows for the exploration of innovative settlement structures that may not be available through traditional litigation. Address emotional barriers: In high-stakes disputes, emotions can often hinder productive negotiations. Skilled mediators can help diffuse tension and create an environment conducive to settlement discussions. Conduct pre-mediation sessions: These sessions can help identify and address potential roadblocks before the formal mediation begins, increasing the chances of a successful outcome. By leveraging the mediator’s experience throughout the dispute resolution process, you can often achieve more favorable outcomes more efficiently. While outside counsel will be responsible for much of the day-to-day case management, as in-house counsel, you play a crucial role in developing and overseeing the overall case strategy. This strategy should align with your company’s broader business objectives and risk tolerance. To develop a comprehensive case strategy: Conduct a thorough risk assessment: Work with key stakeholders to identify potential impacts on the business, including financial, reputational and operational risks. Set clear objectives: Define what constitutes a “win” for your company, whether it is a specific settlement amount, preserving a business relationship or setting a legal precedent. Develop decision trees: Map out various scenarios and decision points to help guide your approach as the case progresses. Allocate resources effectively: Determine which aspects of the case require the most attention, and allocate your budget and personnel accordingly. Plan for contingencies: Anticipate potential challenges or setbacks, and develop response plans in advance. Align the strategy with business goals: The legal strategy should support the company’s overall business objectives and should not create unintended consequences. By developing a comprehensive strategy and sharing it with outside counsel and the mediator, you are increasing the likelihood that all efforts are aligned and focused on achieving the best possible outcome for your company. The conclusion of a mediation, whether successful or not, presents a valuable learning opportunity. Conducting thorough post-mediation debriefs can help you refine your approach for future disputes and continuously improve your use of outside counsel and mediators. Key elements of an effective post-mediation debrief include: Outcome analysis: Evaluate the mediation outcome against your initial objectives. Identify areas where you achieved your goals and where you fell short. Strategy assessment: Review the effectiveness of your overall strategy and tactics. Determine what worked well and what could be improved. Team performance: Assess the performance of both in-house and outside counsel. Identify strengths to leverage and areas for improvement. Mediator effectiveness: Evaluate the mediator’s performance and consider whether you would use them again for similar cases. Lessons learned: Document key takeaways and insights that can be applied to future disputes. Process improvement: Identify any procedural or systemic issues that hindered the mediation process, and develop plans to address them. Client feedback: If appropriate, solicit feedback from key stakeholders within your company about their perceptions of the process and outcome. By consistently conducting these debriefs, you create a feedback loop that allows for continuous improvement in your approach to dispute resolution. As in-house counsel, effectively managing outside counsel and mediators is crucial to achieving favorable outcomes in complex legal disputes. By implementing these five tips—clearly defining roles and expectations, facilitating open communication, leveraging mediator experience early, preparing comprehensive case strategies and conducting post-mediation debriefs—you can significantly enhance the value you derive from these professional relationships.

CALIFORNIA SUPREME COURT Civil Procedure/Discovery City of Los Angeles v. Pricewaterhousecoopers, LLP (2024) _ Cal.5th _ , 2024 WL 3894042: The California Supreme Court reversed the Court of Appeal decision that had reversed the trial court’s order concluding that plaintiff had been engaging in an egregious pattern of discovery abuse as part of a campaign to cover up its misconduct, and ordering plaintiff to pay $2.5 million in discovery sanctions to defendant. The Court of Appeal concluded that the trial court did not have the authority to issue the order under the general provisions of the Civil Discovery Act concerning discovery sanctions, Code of Civil Procedure sections 2023.010 and 2023.030. The California Supreme Court disagreed, concluding that under the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court had the authority to impose monetary sanctions for plaintiff’s pattern of discovery abuse. The trial court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery. (August 22, 2024.) Employment Turrieta v. Lyft, Inc. (2024) _ Cal.5th _ , 2024 WL 3611975: The California Supreme Court affirmed the Court of Appeal’s decision that had affirmed the trial court’s order denying motions, by other employees who had filed separate PAGA actions against defendant employer, to intervene in this PAGA action and submit objections to the settlement and to vacate the judgment. This case involved what has become a common scenario in PAGA litigation: multiple persons claiming to be an “aggrieved employee” within the meaning of PAGA file separate and independent lawsuits seeking recovery of civil penalties from the same employer for the same alleged Labor Code violations. The California Supreme Court observed that a PAGA plaintiff may use the ordinary tools of civil litigation that are consistent with the statutory authorization to commence an action such as taking discovery, filing motions, and attending trial. However, the California Supreme Court concluded that it would be inconsistent with the scheme the Legislature enacted for PAGA cases to allow other PAGA plaintiffs to intervene in an ongoing PAGA action of another plaintiff asserting overlapping claims, to require the trial court to consider objections to a proposed settlement in that overlapping action, and to allow other PAGA plaintiffs to move to vacate the judgment in that action. This conclusion best comports with the relevant provisions of PAGA as read in their statutory context, in light of PAGA’s legislative history, and in consideration of the consequences that would follow from adopting the interpretation requested by the other PAGA plaintiffs. (August 1, 2024.) Torts Rattagan v. Uber Technologies, Inc. (2024) _ Cal.5th _ , 2024 WL 3894629: The California Supreme Court answered a question posed by the United States Court of Appeals for the Ninth Circuit: Under Robinson Helicopter v. Dana Corp. (2004) 34 Cal.4th 979 (Robinson), may a plaintiff assert a tort claim for fraudulent concealment arising from or related to the performance of a contract? The California Supreme Court said the answer is a qualified yes. A plaintiff may assert a fraudulent concealment cause of action based on conduct occurring in the course of a contractual relationship if the elements of the claim can be established independently of the parties’ contractual rights and obligations, and the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the contract. The economic loss doctrine does not apply if defendant’s breach caused physical damage or personal injury beyond the economic losses caused by the contractual breach and defendant violated a duty flowing, not from the contract, but from a separate, legally recognized tort obligation. (August 22, 2024.) CALIFORNIA COURTS OF APPEAL Arbitration Anoke v. Twitter (2024) _ Cal.App.5th _ , 2024 WL 4230621: The Court of Appeal affirmed the trial court’s order denying plaintiffs’ petition for an order compelling defendants to pay plaintiffs’ arbitration-related attorney fees under Code of Civil Procedure section 1281.97 for failure to pay the initial arbitration fees within 30 days of the original invoice. The arbitration provider sent an invoice to all counsel for the initial fees of defendants of $27,200. Plaintiffs’ counsel paid the fees the same day. When defense counsel checked the system the next day, the arbitration provider’s system showed the fees were paid in full. Plaintiffs’ counsel notified the arbitration provider of his mistake this same day. The arbitration provider sent a refund to plaintiffs’ counsel, and later sent an invoice for defendants’ initial arbitration fees which defendants paid within 30 days of that invoice. The trial court properly denied plaintiffs’ petition. Because the arbitrator nullified the first invoice after plaintiffs’ attorney mistakenly paid it, and defendants timely paid the second invoice, defendants met the statutory deadline. (C.A. 1st, filed August 27, 2024, published September 18, 2024.) Insurance Fox Paine & Co., LLC, et al. v. Twin City Fire Insurance Co. et al. (2024) _ Cal.App.5th _ , 2024 WL 4093921: The Court of Appeal affirmed the trial court’s order sustaining demurrers, without leave to amend, by two defendant excess carriers named in plaintiffs’ third amended complaint against three excess carrier defendants alleging, among other things, that they had failed to pay covered claims in underlying litigation and alleging causes of action for breach of contract, declaratory judgment, breach of covenant of good faith and fair dealing, aiding and abetting breaches of fiduciary duty . The trial court properly overruled the demurrer of defendant excess carrier Twin City Fire Insurance Company (who issued the first excess and third excess policies), properly concluding that plaintiffs had sufficiently alleged exhaustion of the primary insurance policy such that the first excess coverage policy was triggered. The trial court properly sustained, without leave to amend, the demurrers of the other two excess carrier defendants (who issued the second and fourth excess policies), properly concluding that plaintiffs did not allege exhaustion of the underlying policies. The trial court also properly rejected plaintiffs argument that excess carrier defendant St. Paul Mercury Insurance Company had waived or was estopped from asserting lack of exhaustion as a coverage defense because it had settled with other insured entities in a separate action. (C.A. 1st, September 5, 2024.) Legal Malpractice Grossman v. Wakeman (2024) _ Cal.App.5th _ , 2024 WL 4034844: The Court of Appeal reversed the judgment for plaintiffs, following a jury trial, that awarded plaintiffs damages totaling $9.5 million. Plaintiffs were the sons and grandchildren of decedent Dr. A. Richard Grossman. Defendants were the attorney (and his law firm) who represented decedent, Dr. Grossman, in preparing estate planning documents in 2012 which disinherited plaintiffs. Decedent left his entire estate to his fourth wife, Elizabeth Grossman, whom he married in 2000 and whom he remained married to until his death in 2014. The jury concluded that plaintiffs were the intended beneficiaries of the estate planning documents, and defendants had breached the standard of care owed to plaintiffs in the preparation of the documents and plaintiffs were damaged by defendants’ negligence. The Court of Appeal disagreed, concluding that the evidence was insufficient to show that defendant owed a duty of care to plaintiffs because there was no clear, certain and undisputed evidence of decedent’s intent to benefit plaintiffs by leaving his estate to them instead of to Elizabeth Grossman. (C.A. 2nd, September 4, 2024.) Torts Kim v. Uber Technologies, Inc. (2024) _ Cal.App.5th _ , 2024 WL 4259284: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s action for personal injuries suffered when his car was hit by an Uber driver who had turned his Uber App to “offline” about four minutes before the accident and more than a mile away from the accident site. Plaintiff argued that Uber drivers can go from “offline” to “available” within 30 seconds and they are able to see an Uber map showing areas of high demand for rides even when they are “offline,” claiming there was a triable issue of fact as to whether the driver was operating his vehicle with the intention of switching back to available status at the time of his collision with plaintiff. The trial court properly concluded that plaintiff’s arguments were speculative and properly granted the motion for summary judgment. (C.A. 2nd, filed August 30, 2024, published September 20, 2024.)

If you read our past article on what makes up a modern marketing technology stack, you know that thousands of platforms are available to help with virtually every facet of running your law firm’s day-to-day marketing. Moreover, implementing, maintaining, and optimizing your law firm’s Marketing Technology Stack is not a simple, streamlined process. Unfortunately, too many law firms end up implementing technology they don’t use because vendors over-promised. In general, there are 6 mistakes law firms make when selecting and adopting marketing technology solutions. We’ll cover them here, so your firm can avoid these pitfalls when considering new marketing technology. 1. You Believe That Integration Will Be Easy It’s a vendor’s job to promise that installation will be simple, but that’s rarely the case. Every law firm is different, which means implementing new technology is more complex than what an outside vendor can understand from brief interactions. Make sure you drill down into the process and ask detailed questions on any platform. Ask vendors if they’ve worked with your specific systems before, and let them know if you have any custom code. Be sure to get references and take the time to call and discuss the potential platform. While some technologies are easy to implement, you should know that those are the exception, not the rule. 2. You Get Excited About too Many New Platforms Perhaps you’ve just been at a legal tech conference, and you come back invigorated about new technology options. Maybe you have a new marketing director at your firm eager to make some changes. Whatever the reason, firms often end up biting off more than they can chew when they try to implement multiple new systems simultaneously. Every implementation requires resources from your teams, and those resources aren’t infinite. It’s important to scale into new technologies. We suggest building a long-term roadmap of the technology needs of your team, accounting for how long it will take to integrate each other and how they impact each other. Rank any new technology according to priority and need. When you implement new systems, start slow and keep it simple—scale up to the full capabilities. 3. You Think That Bigger Is Always Better Many law firms are only comfortable buying from the best-known brands or biggest names. Just remember that even the most prominent brands have issues. For one thing, they tend to be more expensive. It can also be tricky to see how integrated each of their solutions are. We suggest also looking at younger or smaller companies, as they often offer better customer service (and you’re bound to have questions in the early adoption phase!), and they may have features better tailored to your firm’s needs. 4. Your Law Firm’s Internal Teams Are Not Aligned It’s crucial to involve key stakeholders in choosing technology that affects them. Beyond the marketing team, consider who might need input on any platforms. The technology could impact business development, client service and secretaries, your CIO or CFO, and others. Anyone who will ultimately be an end user should have some say. Having your technology team on board is also essential, and ensuring proper resources will be allocated to an installation. Make sure the entire team involved is on board and engaged from the beginning, or you could potentially waste months not using the technology you pay monthly for. 5. You Assume the Job Is Finished After the Implementation Most advanced technologies require more than financial investment—they take time. Technology can only go so far. You must provide the right training and tools to help your team make the most of the technology you’ve invested in. Training, onboarding, and ongoing support are critical components of success in any marketing technology that you implement. Otherwise, you’ll have wasted dollars on platforms your team doesn’t know how to use. 6. Overlooking Data Security and Compliance Risks One of the most critical, yet often overlooked aspects of choosing new marketing technology is ensuring it meets data security and compliance standards. As law firms handle sensitive client information, any software you adopt must comply with legal industry regulations, such as data protection and confidentiality standards. Vendors should provide detailed documentation on how their platforms address security, encryption, and compliance issues. Always prioritize solutions that offer robust security features to protect your firm’s and clients’ data and avoid costly breaches or legal risks. Key Takeaway The fact is that there are plenty of marketing technologies out there that can help law firm marketing teams do their jobs more effectively. It’s important to invest the proper time and effort into implementing any new system to see a return on investment (ROI). 

CALIFORNIA SUPREME COURT Arbitration Quach v. Cal. Commerce Club, Inc. (2024) _ Cal.5th _ , 2024 WL 3530266: The California Supreme Court reversed the Court of Appeal decision which had reversed the trial court’s decision denying defendant’s motion to compel arbitration of plaintiff’s complaint alleging wrongful termination, age discrimination, retaliation, and harassment. The trial court denied the motion to compel arbitration concluding that plaintiff had shown he would suffer prejudice if arbitration was compelled. The Court of Appeal disagreed with the trial court, finding that defendant did not waive its right to compel arbitration and concluding the trial court’s finding that plaintiff had shown prejudice was not supported by substantial evidence. Two weeks after the Court of Appeal’s decision, the United States Supreme Court issued Morgan v. Sundance, Inc. (2022) 596 U.S. 411 ( Morgan ), holding that federal law does not require a showing of prejudice to establish waiver of the right to arbitrate. ( Id. at pp. 413–414.) Because the California law requiring a showing of prejudice had been based upon earlier federal case law that was reversed by Morgan, the California Supreme Court abrogated the prejudice rule in light of Morgan and reversed the Court of Appeal’s decision. (July 25, 2024.) Torts Downey v. City of Riverside (2024) _ Cal.5th _ , 2024 WL 3491142: The California Supreme Court reversed the Court of Appeal’s order affirming the trial court’s orders sustaining defendants’ demurrer, without leave to amend, to plaintiff’s complaint alleging negligence under Dillon v. Legg (1968) 68 Cal.2d 728 ( Dillon ). Plaintiff, the mother of daughter Jayde Downey, was giving driving directions to her daughter over a cell phone and heard the event when her daughter was severely injured in a car crash. The trial court, and later the Court of Appeal, concluded that plaintiff could not recover emotional distress damages against the defendants unless at the time of the crash she was aware of a causal connection between her daughter’s injuries and the defendants’ alleged negligence in maintaining the intersection. The California Supreme Court disagreed, concluding that under Dillon it is the awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters. Neither precedent nor considerations of tort policy supported requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries. (July 22, 2024.) CALIFORNIA COURTS OF APPEAL Attorney Fees Dickson v. Mann (2024) _ Cal.App.5th _ , 2024 WL 3421751: The Court of Appeal affirmed the trial court’s order denying the third party claim of law firm Higgs, Fletcher & Mack LLP (HFM) where it claimed ownership of $585,000 in funds it received from HFM client and defendant Jack Mann pursuant to a flat fee agreement for future legal representation that HFM entered into with defendant, and its denial of HFM’s motion for reconsideration. After defendant stipulated to the entry of a $12 million judgment in favor of plaintiff, judgment was entered on August 8, 2022. On August 22, 2022, plaintiff served HFM with a notice of levy for any money it was holding in trust for defendant, and HFM later filed its third party claim. The trial court properly rejected plaintiff’s claim that the funds were still defendant’s as long as they remained in the client trust account. The trial court properly denied the third party claim because HFM presented no evidence that it had earned the flat fee. HFM argued that the flat fee was earned once it was deposited. However, Rule 1.5(d) of the California Rules of Professional Conduct clearly provides that a flat fee is not earned until services are provided. The trial court also properly denied the motion for reconsideration. (C.A. 4th, July 18, 2024.) Civil Code Medina v. St. George Auto Sales, Inc. (2024) _ Cal.App.5th _ , 2024 WL 3548620: The Court of Appeal affirmed the trial court’s order overruling defendants’ demurrer to plaintiff’s complaint, and its later denial of a motion for summary judgment and a motion for nonsuit. Plaintiff purchased a used car and sued defendants asserting a claim under the Consumer Legal Remedies Act (the CLRA; Civ. Code, § 1750 et seq.) for misrepresenting that the car’s engine was properly functioning and concealing extensive repairs to the car’s engine to induce plaintiff into purchasing the car. Plaintiff and defendants settled the case and agreed to a stipulated judgment after the jury concluded that plaintiff had timely brought his action within three years after discovering defendant’s conduct. The settlement allowed defendants to appeal the issue of whether plaintiff’s complaint was untimely because it was not filed within the three-year statute of limitations under the CLRA. (See § 1783.) Defendants argued that the discovery rule does not apply the CLRA’s statute of limitations. Finding no case law on this point, the Court of Appeal concluded that the discovery rule applies to the CLRA’s statute of limitations. All of defendants’ other arguments were rejected. (C.A. 4th, July 26, 2024.) Saurman v. Peter’s Landing Property Owner, LLC (2024) _ Cal.App.5th _ , 2024 WL 3548509: The Court of Appeal reversed the trial court’s orders granting defendant’s motion for summary judgment, and granting defendant’s motion for sanctions against plaintiffs’ attorney. Plaintiff husband, the successor in interest of his disabled wife who was allegedly killed by an unlawful access barrier in a restaurant, brought action against the current restaurant owner and the entity that previously owned the restaurant when plaintiff’s wife died, alleging violations under Americans with Disabilities Act’s (ADA) public accommodation provision, and violations of state’s disability access laws (the Unruh Act and the Disabled Persons Act (DPA). The trial court granted defendant’s motion for summary judgment as to the ADA cause of action, concluding that plaintiff husband lacked standing to bring a lawsuit for injunctive relief. It granted defendant’s summary judgment motion as to the state causes of action (Unruh Act and DPA) because plaintiff submitted no evidence to show any act, omission, or error by defendant current owner in relation to the action. Finally, the trial court granted the motion for sanctions, ordering plaintiff’s attorney to pay defendant $100,000 for pursuing what the trial court found to be frivolous claims. The Court of Appeal disagreed on each issue. It concluded that plaintiff husband had standing to commence an ADA claim on his deceased wife’s behalf in the superior court. It concluded that the Unruh Act and the DPA allowed plaintiff husband to seek injunctive relief from the current owner defendant. Finally, the Court of appeal concluded that the ADA, Unruh Act, and DPA claims that were supported by facts developed at the summary judgment stage were arguably legally meritorious and the trial court erred by imposing the attorney sanctions award. (C.A. 4th, July 26, 2025.) Limited Liability Companies Camden Systems v. 409 North Camden (2024) _ Cal.App.5th _ , 2024 WL 3506697: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment in plaintiff’s action seeking declarations that certain actions taken by members of defendant, including distributions to the members, were invalid and seeking return of the distributed funds. The trial court properly concluded that while some of the actions taken by its members at the company’s February 2021 annual meeting were invalid in light of defective notice of the meeting, at the February 2022 annual meeting a majority of the members ratified the prior actions, thereby curing any defect in the 2021 notice. The Court of Appeal affirmed, observing that the California Revised Uniform Limited Liability Company Act (the Act; Corp. Code, § 17701.01 et seq.), which governs the management and operation of limited liability companies, provides that a limited liability company generally “shall have all the powers of a natural person in carrying out its business activities.” (§ 17701.05.) Because a natural person has the power to ratify acts taken on the person’s behalf, limited liability companies likewise may, through their members, ratify actions previously taken on behalf of the company. In addition, the trial court also properly upheld the resolution adopted by the majority of defendant’s members to indemnify its members and advance defense costs and expenses incurred in the lawsuit filed by plaintiff. (C.A. 2nd, July 23, 2024.)

CALIFORNIA SUPREME COURT Arbitration Harrod v. Country Oaks Partners, LLC (2024) _ Cal.5th _ , 2024 WL 1319134: The California Supreme Court affirmed the Court of Appeal, which had affirmed the trial court’s order denying defendant’s motion to compel arbitration of plaintiff’s complaint alleging negligence and elder abuse. Plaintiff signed a power of attorney for health care appointing his nephew, Mark Harrod, as his “health care agent” to make “health care decisions” should plaintiff’s primary physician find plaintiff unable to make those decisions himself. Plaintiff later fell, broke a femur, became unable to walk and was admitted to defendant skilled nursing facility to obtain living assistance and rehabilitative treatment. During the admission process Mark Harrod signed two agreements. The first was an admission agreement that was state-mandated and unalterable. The second was an arbitration agreement. The California Supreme Court concluded that the execution of the optional contract for arbitration was not a health care decision within the health care agent’s authority, and defendant’s owners and operators could not rely on the agent’s execution of the second agreement to compel arbitration of claims arising from the principal’s alleged maltreatment alleged in his complaint. (March 28, 2024.) Civil Procedure TriCoast Builders, Inc. v. Fonnegra (2024) _ Cal.5th _ , 2024 WL 763422: The California Supreme Court affirmed the Court of Appeal’s decision that affirmed the trial court’s order denying plaintiff’s motion for relief from waiver of a jury trial. Plaintiff did not make a jury fee deposit because defendant did so. On the day of trial, defendant said he was waiving his request for a jury trial. Plaintiff asked for a jury trial and offered to post the jury fee deposit. The trial court denied this request concluding that plaintiff had waived its right to a jury trial by not timely depositing the jury fee deposit. (Code of Civil Procedure, section 631.) Although the trial court observed that plaintiff could challenge the ruling by filing a petition for an extraordinary writ, plaintiff did not do so. After a seven day bench trial the trial court found against plaintiff. The California Supreme Court concluded that a trial court is not required to always grant relief from a jury waiver if proceeding with a jury would not cause hardship to other parties or to the trial court. A request for relief from jury waiver always calls for consideration of multiple factors in addition to hardship, including the timeliness of the request and the reasons supporting the request. The California Supreme Court also concluded that when a litigant challenges the denial of relief from jury waiver for the first time on appeal of the judgment of the trial court, where the constitutional right of jury trial has been validly waived, prejudice from the denial of section 631(g) relief will not be presumed but must be shown. (February 26, 2024.) CALIFORNIA COURTS OF APPEAL Arbitration Davis v. Nissan North America, Inc. (2024) _ Cal.App.5th _ , 2024 WL 1130508: The Court of Appeal affirmed the trial court’s order denying defendants’ motion to compel arbitration in plaintiffs’ action for claims including violations of the Song-Beverly Consumer Warranty Act (Song-Beverly Act; Civ. Code, § 1790 et seq.) regarding a Nissan with an allegedly defective transmission. The Court of Appeal, joining with four other Court of Appeal decisions that had rejected Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, and noting the California Supreme Court has granted review to resolve the conflict, affirmed the trial court. (C.A. 4th, March 15, 2024.) Attorney Fees Gramajo v. Joe’s Pizza on Sunset, Inc. (2024) _ Cal.App.5th _ , 2024 WL 1250214: The Court of Appeal reversed the trial court’s order denying plaintiff’s request for attorney fees of $296,920 and costs in the amount of $26,932.84 under Labor Code section 1194(a) after the jury awarded plaintiff $7,659.93 in plaintiff’s action for Labor Code violations in connection with plaintiff’s work as a pizza delivery driver. Relying on Code of Civil Procedure section 1033(a), which gives trial courts discretion to deny prevailing plaintiffs their litigation costs when plaintiffs file their case as an unlimited civil proceeding but only recover an amount available in a limited civil case, the trial court denied all attorney fees and costs, concluding that plaintiff’s counsel severely over-litigated the case and the requested fees and costs were grossly disproportional to plaintiff’s limited trial success. The Court of Appeal disagreed, concluding the trial court did not have discretion to deny plaintiff’s fees and costs in their entirety under Code of Civil Procedure section 1033(a), and plaintiff was entitled to an award of reasonable attorney fees and costs. (C.A. 2nd, March 25, 2024.) Civil Procedure Ayers v. FCA US, LLC (2024) _ Cal.App.5th _ , 2024 WL 805660: The Court of Appeal reversed the trial court’s order awarding plaintiff attorney fees and costs totaling $187,747.75 after defendant accepted plaintiff’s January 2021 Code of Civil Procedure section 998 offer to settle plaintiff’s “lemon law” causes of action under the Song-Beverly Consumer Warranty Act (Song-Beverly; Civil Code section 1790 et seq.) for $125,000 plus costs, expenses and attorney fees pursuant to Civil Code section 1794(d). Before the settlement, the parties had exchanged earlier 998 offers, including a 998 offer from defendant in February 2018 to settle for $143,498. The trial court rejected defendant’s arguments that the February 2018 998 offer should have stopped plaintiff’s ability to collect attorney fees, concluding that section 998’s limitations on expense and cost recovery do not apply when the case is resolved by a pretrial settlement, and concluding that an intervening change in law that reduced the maximum amount plaintiff could recover at trial exempted him from the usual consequences of section 998. The Court of Appeal disagreed, concluding that Section 998 applies to awards of attorney fees and costs pursuant to Civil Code section 1794(d), section 998 applies even where the litigation is terminated by settlement, and section 998 makes no exception for an intervening change in law. The case was remanded and the trial court was instructed to enter a new judgment exclusive of any costs, as such term is used in section 1032(b), incurred by plaintiff after the date of defendant’s February 16, 2018 section 998 offer. (C.A. 2nd, February 27, 2024.) Torts Fraser v. Farvid (2024) _ Cal.App.5th _ , 2024 WL 510111: The Court of Appeal affirmed the trial court’s order granting defendant landlord’s motion for judgment notwithstanding the verdict after the jury found for plaintiff against defendant and awarded plaintiff $600,000 for the injuries he suffered after he was attacked by two pit bulls who escaped from a single-family residence. Under California law a landlord is only liable if they have actual knowledge that the dog of a tenant is dangerous. In this case, while the evidence established the landlords knew there were dogs on the property, plaintiff failed to prove that defendants had actual knowledge the dogs were dangerous. (C.A. 2nd, February 9, 2024.) Settlement BTHHM Berkeley, LLC, et al. v. Johnston (2024) _ Cal.App.5th _ , 2024 WL 1336433: The Court of Appeal affirmed in part, and struck in part, the trial court’s order enforcing a settlement term sheet and entering judgment against defendant pursuant to Code of Civil Procedure section 664.6 (section 664.6). The Court of Appeal affirmed in part, concluding that the settlement term sheet was enforceable under section 664.6, the liquidated damages of $250,000 was not unreasonably out of proportion to the $2.2 million settlement, and defendant failed to show the liquidated damages provision was unreasonable under the circumstances as required by Civil Code section 1671(b). However, the trial court erred in awarding prejudgment interest. Section 664.6 authorizes a trial court to enter a judgment reflecting the terms of the parties’ settlement agreement—nothing more, and nothing less. Prejudgment interest is not a cost, but an element of damages. By awarding prejudgment interest to compensate plaintiff for damages it suffered by virtue of defendant’s failure to pay, the trial court entered a judgment that differed materially from the terms of the parties’ agreement, and to that extent it was unauthorized. The portion of the judgment providing for prejudgment interest was stricken. (C.A. 1st, March 28, 2024.)

All law firms have stories to tell. Stories of triumph. Stories of tragedy. Stories that often fuel movie plots and leave people wanting more. So how do you draw those stories out to help build your brand? You’ll need to start with a source, an inspiration for the story you want to tell. And that shouldn’t be hard. Lawyers are fortunate to work with a treasure trove of interesting people and tackle a ton of fascinating topics in their careers. Here are four sources of inspiration that you could tap into: 1. Your Clients Helping people is the reason you do what you do, and winning for clients can make a huge difference in their lives. Your clients can tell stories that people can relate to, especially those who may find themselves in the same boat. While you were focused on the nitty-gritty facts of their case, your clients were likely on an emotional roller coaster. They can share that emotional side of what they have been through, and how your firm helped them get through the dark times and find hope. Your clients’ stories can breathe life into your impressive (but sometimes impersonal) list of case results. 2. Your Attorneys and Staff You are so much more than a headshot or a commercial tagline, and you need to show that. Consider telling your own stories: What motivated you to go into law? What pushed you to start your own firm? What cases have kept you up at night and why? Is there one case that has changed the way you look at the world? Is there a client whom you have kept in touch with for many years because you formed a special bond? What are your interests outside of work that keep you fulfilled? These types of stories help make your personality stand out from all the buzzwords and advertising hype. They show who you are as a person and help potential clients connect with you. And never underestimate the wealth of stories among your staff. These are your brand ambassadors­—answering the phones, greeting people who walk in the door, digging for information for panicked clients. Which staff members have been with you the longest, and why do they love working for your firm? Do your staff members participate in hobbies or volunteer work that has helped them connect to clients? You never know who may have a story to tell until you ask. 3. Your Professional Partners There are plenty of people you work with every day who have extremely interesting jobs and loads of stories related to cases they have worked on with you. For example, the average person has probably never heard of an accident reconstructionist, let alone what that job entails. And think of all the emotional cases your life-care planning experts have worked on with you. Consider tapping into those partners who help you help clients. What drives them to do what they do? What makes their jobs interesting? What do they add to your brand, and how do all their puzzle pieces come together to make a strong case for your clients? 4. Big Data or Patterns of Information Beyond the personal stories, keep an eye on the news and information coming out of the agencies you deal with frequently. For example, the police may release a list of the city’s most dangerous intersections. That report may refer to crash data from the state, which could be used to tell a much bigger story about dangerous local roads. Keep in mind that not all stories are told through videos and long narratives. Many data-driven stories can be told through graphics and maps, such as this one that our team created for the Tate Law Offices in Texas (http://www.tatelawoffices. com/texas-triangle-tragedies). Often, data can tell a story that provides useful information, impacts people’s everyday lives, and emphasizes your brand’s mission of serving the public. Structure Your Stories in a Way That Keeps People Interested When thinking about how to structure your brand’s stories, keep some of your favorite movies in mind. What do they have in common structurally that you should incorporate? Most likely, they are built on: A good guy A bad guy (or bad situation) Supporting cast An interesting opening A struggle to overcome A surprising twist A satisfying conclusion Not every story you tell will include all of these elements, but it helps to outline your structure with these factors in mind. In addition, take into account: The average person’s attention span is 8 seconds (shorter than a goldfish’s), according to a well known 2015 past study from Microsoft. This means you have very little time to hook your audience and keep them interested in your story. If you are telling your story through video or text, focus on a great opening and interesting character development from the start. If you are sharing stories through a graphic or multimedia asset, make sure it is visually interesting and easy to navigate at a glance. The conclusion to your story shouldn’t be the end. Your stories should leave your audience wanting more—and give them ways to find it. Direct them to your website, invite them to contact you, point them to more stories. Remember, one of the goals of brand storytelling is to build a personal connection with your audience, so you have to keep that connection going. How Will You Tell Your Brand’s Story? When considering the best ways to boost your brand through storytelling, take all of your communication channels into account. Share your stories on your firm’s website, through social media, on your blog, and in press releases. Capture emotions through videos that people will relate to and want to share. Collect letters, notes, and photos from clients. And write your own stories in your own voice, so your personality can shine through. In the end, the stories you tell should reflect a consistent image of your brand. They should be impactful, insightful, and—most of all—leave people with the desire to learn more about your law firm.