Industry Insight

A change in leadership in Washington always brings uncertainty, and law firms are watching closely. A new administration always sparks speculation about what’s ahead for businesses and the legal industry. While law firm marketing isn’t directly dictated by who’s in the White House, economic policies, regulatory shifts and changes in corporate priorities can all influence how law firms position themselves. So, will legal marketing change under the Trump administration? Maybe, but not in the ways you might think. Here’s how your law firm can prepare and stay ahead of industry shifts, client expectations and market trends. What Might Shift and What to Do About It 1. A Renewed Focus on Corporate and Regulatory Work If financial regulations, antitrust enforcement or environmental policies change, law firms will need to adjust their marketing strategies. Clients in heavily regulated industries such as banking, healthcare and energy will likely pay close attention to potential policy shifts. What can firms do? Get ahead of client concerns with timely thought leadership and client briefings. Write client alerts, host webinars, invest in podcasts and videos, and publish LinkedIn posts analyzing regulatory updates and their practical impact. Make it easy for clients to find your firm’s expertise. If your firm handles compliance work, ensure your website and marketing materials reflect the specific challenges clients may face under the new administration. 2. Potential Uptick in Private Equity and M&A Activity If corporate tax policies shift or regulatory oversight on deals changes, private equity and M&A activity may also increase. When the business environment favors deal making, law firms with strong transactional teams should be ready to capitalize on it. What can firms do? Ensure your lawyers are visible in the right places. Speak at industry conferences, contribute guest articles in financial publications and build strategic partnerships with deal-making organizations. Refresh your deal highlights. If your website or pitch materials don’t reflect recent transactions, now is the time to update them. Potential clients want to see what you’ve done and how you’ve handled similar deals. Be sure your lawyers update their bios as well. Leverage LinkedIn. Posting about deal trends, client successes (when appropriate) and industry insights can position your firm as a go-to resource. Prioritize content marketing. Consistently sharing insights through blogs, newsletters and thought leadership pieces helps demonstrate expertise and keeps your firm top of mind for potential clients. 3. A Continued Spotlight on Litigation and Investigations No matter who is in office, companies will face disputes. Commercial litigation, SEC enforcement and white-collar investigations will remain top concerns for businesses navigating a shifting regulatory landscape. What can firms do? Be proactive with content marketing. Litigation teams should consistently publish updates on key cases, regulatory enforcement trends and risk mitigation strategies. Use case studies strategically. While confidentiality is key, anonymized case studies or past wins that reflect the depth and breadth of your expertise can help build credibility and visibility. Use case studies in new business pitches, on your website and as social media posts. Strengthen relationships with the media. Litigation teams should cultivate relationships with legal and business reporters to ensure their perspectives are included in industry coverage. 4. Client-Centric Marketing Will Matter More Than Ever Regardless of political changes, the firms that succeed will be those that focus on their clients, not themselves. Marketing that simply highlights how great a firm is won’t be effective. Clients want to work with firms that understand their industry, their challenges and their specific legal needs. Client-centric marketing strategies are imperative to be a successful law firm today. What can firms do? Make content relevant to your audience. If you’re publishing insights, avoid generic overviews and focus on what your clients actually care about. Get more personal in your outreach. Targeted, thoughtful emails or LinkedIn messages based on a client’s current challenges will be far more effective than generic firm announcements or a checking in email. Showcase your lawyers as industry insiders. Encourage lawyers to write, speak and engage with clients and prospects in meaningful ways. 5. A Strong Digital Presence Will Continue to Be Essential If there’s one thing that won’t change, it’s the importance of having a strong online presence. The way firms market themselves has evolved dramatically in recent years, and that shift isn’t slowing down. Firms that invest in content marketing, video, podcasts, LinkedIn and SEO-driven strategies will have an edge over those that don’t embrace these strategies. What can firms do? Audit your firm’s digital presence. Is your website up to date? Are your lawyers’ LinkedIn profiles complete? How about their LinkedIn presence? If not, now is the time to fix it. Invest in high-quality content. Whether it’s LinkedIn posts, blogs or videos, firms that create consistent, valuable content will stand out. Use data to refine your approach. Look at engagement metrics to see what’s working and adjust your strategy accordingly. 6. The Power of Content Marketing in Uncertain Times One of the best ways to stay relevant in a shifting landscape is through content marketing. Timely topics create opportunities to connect with your audience, demonstrate thought leadership and provide real value. In times of uncertainty, people seek insights that help them understand how changes will impact them. What can firms do? Create content that answers the questions your clients are asking. If clients’ express concerns about regulatory changes, litigation risks or deal flow, use that as a prompt for your next webinar, blog post or LinkedIn post. Be nimble. Content marketing isn’t just about long-term strategy, it’s also about responding quickly to what’s happening now. Keep a pulse on engagement. If a topic resonates, lean into it. Write a follow-up post, do a podcast, host a webinar and share additional insights based on client feedback. What Comes Next for Legal Marketing A new administration always brings change, and law firms need to be ready. Shifts in regulations and client concerns will shape marketing strategies, but the firms that succeed won’t just react, they’ll stay ahead by anticipating what’s next and adjusting their approach. At the end of the day, legal marketing is about relationships, expertise and visibility. No matter what happens in Washington, the firms that consistently show up and provide value will be the ones clients turn to when they need guidance. Make sure that your firm is at the top of that list. 

The way we work is changing rapidly and changing in ways that legal professionals never expected. Expectations are different. The pace is faster, and managing the complexity of information is growing at a pace that the industry hasn’t faced before. With 79% of law firm professionals now incorporating AI tools into their daily work, and corporate legal departments being even more proactive in adopting AI technologies, legal professionals are no longer asking if they should adopt AI but how they can do so effectively. With so much advancement in the world of AI, what should legal professionals be aware of and prepare for throughout the next year? Based on research and input from hundreds of industry experts and professionals across legal, the 2025 Legal Tech Trends report by NetDocuments shares top trends shaping the future of AI-driven legal practice, why these trends are making such an impact in legal, and what your team can do to prepare. Here’s a sneak peek at what’s covered. AI Abilities and Knowledge Take Center Stage AI is accelerating legal workflows, including document interaction, summarizations, and contract review and analysis, and more. It’s no surprise that the use of artificial intelligence by law firm professionals increased 315% from 2023 to 2024. It’s not just law firms that see the value of using AI: 67% of corporate counsel expect their law firms to use cutting-edge technology, including generative AI. The legal industry’s interest in AI reflects a broader trend of workforce transformation, where 75% of survey respondents expect to change their talent strategies within two years in response to advancements in GenAI. Law schools are responding to the demand for AI skills by integrating generative AI training for new junior lawyers. Organizations that don’t adapt their roles and job architecture to the new norms of an AI-powered workforce could miss out on top talent. And with almost one-third of legal professionals considering leaving or having already left the industry due to mental health, burnout, or stress, AI presents a unique opportunity to ease the burden of many time-intensive tasks and curb the mental drain currently being felt. AI Agents Become a New Secret Weapon For the legal sector, agentic AI has the potential to be transformative. In 2025, early adopters will gain a new superpower—effectively adding a new legal assistant to their team. When they no longer need to constantly supervise AI, legal professionals will be able to deliver services better and quicker than ever before. This trend reflects a user-centric approach to software, where technology serves as a natural extension of workflows and enables professionals to focus entirely on delivering results. With 37% of law firm employees and 42% of their corporate counterparts saying they experience challenges in integrating GenAI with existing legal systems and processes, this will be the year that legal tech heads toward an agent-to-agent world, where AI agents facilitate instant access to information, providing answers to complex queries across various platforms and contexts. Legal professionals increasingly expect AI tools to work invisibly within their existing platforms. Embedding AI capabilities into familiar environments eliminates the need to switch between tools, allowing legal teams to manage their work more efficiently. By bringing AI to content, rather than requiring content to be migrated to standalone AI platforms, legal teams can maximize the value of these technologies while minimizing disruption. They can also deploy much faster. Proof of AI Will Be the Dealmaker of 2025 Leading vendors in the legal tech space are increasingly viewed as essential collaborators who can help organizations integrate AI-driven tools tailored to the unique demands of the legal profession. These partnerships facilitate faster deployment, access to ongoing innovation and the ability to stay ahead of emerging trends. “Nearly half of Am Law 100 firms report relying on external partners for AI implementation and support, citing cost efficiency and access to innovation as primary drivers.” Echoing this sentiment in the broader business landscape, “Traditionally, only large enterprises with deep pockets could afford to build advanced AI infrastructure. Today, strategic collaborations are democratizing AI, making it accessible to businesses of all sizes.” If a service provider doesn’t have a clear strategic plan for the use and advancement of AI, it could influence whether a partnership continues or a contract is renewed. DMS 2.0 as Legal’s AI Powerhouse An intelligent DMS enables legal teams to bring AI to their content versus taking content to the AI. With 67% of firms indicating plans to upgrade their DMS by 2025, AI-driven features will be essential capabilities to support businesses strategic goals. AI capabilities are being built into the DMS so that content can stay within the platform rather than having to move the content into a separate AI tool. Semantic search capabilities allow legal professionals to query systems using everyday language. For example, if searching for “dog,” it would know to also look for terms like “Labrador” and “Poodle.” This will finally give lawyers the type of search experience they’ve always wanted—without the manual effort of adding tags or metadata. -generation DMS platforms are also introducing automation and intelligence into document workflows. Tasks like tagging, compliance checks and version control are now automated, freeing legal teams from repetitive administrative work. For example, an intelligent DMS can extract renewal dates from contracts and trigger a renewal email alert three months prior to the date. These DMS platforms are also highly scalable, ideal for ambitious legal teams. Greg Lambert, speaking at the KM&I conference this year, adds this observation, “The adaptability of AI-powered DMS is another significant advantage. These systems can scale with a firm’s needs, automatically adjusting to changes in data volume, practice areas or client demands.” Ethics and Transparency Reign in AI’s Next Frontier As AI adoption accelerates across the legal industry, ensuring ethical use and transparency is crucial. While AI offers immense potential, it also presents challenges, including accuracy, bias in algorithms, lack of explainability and data security concerns. Addressing these issues is essential for building trust in AI-driven solutions and ensuring compliance with emerging regulations. Privacy and data security are critical in the legal sector, where sensitive client information must be protected. AI systems must adhere to stringent security protocols, including data anonymization and encryption, to meet regulatory standards. The American Bar Association Standing Committee on Ethics and Professional Responsibility released its first formal opinion this year covering the growing use of generative artificial intelligence (GAI) in the practice of law, with more guidelines sure to follow. While AI can automate tasks and generate insights, legal professionals must validate these outputs to maintain accountability. Workflows must incorporate reviews by qualified lawyers before finalizing AI outputs. Transparency is equally important, particularly as AI systems increasingly influence legal decisions. Explainable AI models, which include interpretability layers, allow legal professionals to understand how conclusions are reached. AI Will Reshape Legal Billing More than half of legal professionals expect AI-driven efficiencies to impact the prevalence of the billable hour. Some firms have already shifted toward flat fees, subscriptions and hybrid models. Firms can use the same approaches for AI-assisted work. For example, firms might charge a fixed fee for AI-assisted document review while continuing to bill for strategy development and client consultations on an hourly basis. These alternative arrangements provide greater predictability for clients and align costs with outcomes rather than time spent. Alternative fee models support client expectations as well, with 42% of surveyed firms exploring hybrid models to account for AI’s impact on efficiency and clients increasingly demanding alternative fee arrangements. Clients now expect law firms to use AI where possible to improve efficiency so they can spend appropriate time on strategic thinking for their cases Additionally, as clients demand faster, more transparent services, fixed or subscription-based fees provide clarity and flexibility. This approach aligns objectives, encourages deeper collaboration and helps firms differentiate themselves in a competitive market.

CALIFORNIA SUPREME COURT Real Property JJD-HOV Elk Grove, LLC v. Jo-Ann Stores, LLC (2024) _Cal. 5th_, 2024 WL 5164746: The California Supreme Court affirmed the Court of Appeal decision that upheld a cotenancy provision in a commercial lease as reflecting the parties’ agreement regarding acceptable alternative performance of agreed upon contract obligations. The California Supreme Court declined to follow the analysis of the Fifth Appellate District Court of Appeal in Grand Prospect Partners, L.P. v. Ross Dress For Less, Inc. (2015) 232 Cal.App.4th 1332, 1336 that had concluded that a cotenancy provision operated as an unenforceable penalty under California Civil Code section 1671. The trial court and Court of Appeal in this case properly analyzed the cotenancy provision as a form of alternative performance because the provision allocated risks and benefits between the two parties and provided plaintiff a realistic choice between accepting lower rent or taking additional efforts to increase occupancy rates or secure replacement anchor tenants. The lease and cotenancy provision were enforceable because they simply created a rent scheme in which there were two applicable rents. (December 19, 2024.) CALIFORNIA COURTS OF APPEAL Arbitration Leeper v. Shipt, Inc., et al. (2024) _ Cal.App.5th _, 2024 WL 5251619: The Court of Appeal reversed the trial court’s order denying defendants’ motion to compel arbitration of plaintiff’s action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The trial court denied the motion based upon its conclusion that plaintiff’s PAGA action did not allege any individual claims subject to arbitration under the parties’ arbitration agreement. The Court of Appeal disagreed and reversed. Based on the unambiguous, ordinary meaning of the relevant statutory language and the legislative history of that language, the Court of Appeal concluded that every PAGA action necessarily includes an individual PAGA claim. The Court of Appeal reversed the trial court and directed the trial court to enter a new order (1) compelling the parties to arbitrate plaintiff’s individual PAGA claim and (2) staying the representative PAGA claim portion of the lawsuit. (C.A. 2nd, December 30, 2024.) Employment Chavez v. Cal. Collision (2024) _ Cal.App.5th _, 2024 WL 5064368: The Court of Appeal reversed the trial court’s order awarding defendants’ costs against plaintiff Samuel Zarate because he had rejected defendants section 998 offer and recovered a smaller amount at trial, it affirmed the trial court’s award of attorney fees to plaintiffs Jorge Chavez and Aldo Isas (for work performed before they accepted 998 offers), and attorney fees for Zarate (for work performed before he was served a 998 offer that he ignored), and it concluded it had no jurisdiction to hear plaintiff Zarate’s challenges to two interlocutory orders (pretrial motion for summary adjudication and motion for a directed verdict) because he failed to file a notice of appeal from the final judgment entered after trial. The Court of Appeal found no abuse of discretion in the trial court’s award of attorney fees of $5,705 to Isas, $8,300 to Chavez, and $260 to Zarate. The trial court erred in awarding costs to defendants and against Zarate under section 998 because the award violated Labor Code sections 1194 and 218.5 which specified the costs and fees that could be recovered in Zarate’s action. The trial court was directed to enter a new order denying defendants’ motion for costs and a new judgment reinstating Zarate’s total award of $26,804.91. (C.A. 1st, December 10, 2024.) Medical Malpractice Ng v. Super. Ct. (2025) _ Cal.App.5th _, 2025 WL 323098: The Court of Appeal granted a writ petition that directed the trial court to vacate its earlier order granting defendant Los Alamitos Medical Center, Inc.’s (defendant) motion to strike portions of plaintiff’s complaint seeking two MICRA caps in an action for wrongful death and a survival action. The dispute was whether recent amendments to the cap on noneconomic damages (Civ. Code, § 3333.2) under the Medical Injury Compensation Reform Act of 1975 (MICRA) and to the availability of noneconomic damages in survival actions (Code Civ. Proc., § 377.34) permitted plaintiff to recover noneconomic damages under one or two MICRA caps. The Court of Appeal concluded that the recent amendment to Code of Civil Procedure section 377.34, which authorized a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for himself or herself and one for the decedent) under Civil Code section 3333.2. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps. (C.A. 4th, January 29, 2025.)

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).