[1/20/2022 Zoom Meeting] Ethical Traps for the Unwary

Ethical Traps for the Unwary

Jonathan Arons will cover various California rules of professional conduct and related statutes, including:

  • Rule 1.2 – Scope of Representation and Allocation of Authority
  • Rule 1.4.2 – Disclosure of Professional Liability Insurance
  • Rule 1.8.5 – Payment of Personal or Business Expenses Incurred by or for a Client
  • Rule 5.5 – Unauthorized Practice of Law, Multijurisdictional Practice of Law
  • Rule 8.5 – Disciplinary Authority, Choice of Law

Please note this video is not offered for MCLE credit. We are only authorized to give credit to those who attend at the time of the presentation.

[9/3/20 Zoom Meeting] Deposition Practice: Tips and tricks to help you win your client’s case

The “Deposition Practice: Tips and tricks to help you win your client’s case” talk was presented by Marc R. Stimpert.

Taking or defending a deposition can be one of the most important yet stressful experiences for any litigation attorney. An artfully extracted admission here or a carelessly answered question there can make or break a case. In this presentation, Marc will provide tips and tricks which can help new attorneys and seasoned veterans alike in taking or defending a deposition.

Topics will include:

  • Deposition timing and strategy
  • How to deal with difficult deponents and their attorneys
  • How to prepare your client for the worst while hoping for the best, and
  • How to leverage your deposition transcript to achieve a favorable outcome for your client.

Please note this video is not offered for MCLE credit. We are only authorized to give credit to those who attend at the time of the presentation.

The Most Important Things Lawyers Can Do in the Wake of COVID-19

The COVID-19 pandemic has exacerbated the already terrible inequality we have in the United States. Prior to the outbreak, income inequality was the highest it had been in fifty years. Now, with more than 30 million people unemployed, it’s likely to get even higher for the foreseeable future.

This inequality is not only an economic problem, but it’s also a legal one. The bigger the disparity in resources, the more the wealthy will be able to consolidate power. The more power they have, the more they are able to influence the law to work in their favor. And the more the law works in their favor, the greater inequality becomes. I consider myself an optimist, but I worry that if we don’t do something major to stop this trend soon, we will end up living in a feudal society.

Lawyers will have a huge role in determining how this plays out.

On a micro-scale, the rich are better able to afford legal services, which means they have an advantage in negotiating contracts, handling lawsuits, or exploiting the law to work in their favor. As someone who has been party to a handful of lawsuits over the course of my career, I know exactly how much value a good lawyer can provide. And while the other parties in these situations usually had more resources than me, I know that, as a successful business owner, I have an advantage over most other people who find themselves in these situations.

At the most sophisticated levels, we see wealthy individuals and corporations donating money to influence elections, appointments, and our education system so that those in charge of setting law and policy will do so in a way that favors their personal interests. This imbalance has been playing out for decades but is likely to get worse if we don’t intervene.

What you can do to reverse inequality

As lawyers, you have the power to help reverse this course. Here’s how.

Educate the public

As lawyers, you understand the gravity of your role in interpreting the law. And your beliefs about how the law is supposed to work will naturally influence this interpretation. People naturally want to work with lawyers who interpret the law in a way that favors their interests. And since the wealthy have inherently more access to legal services, we end up with a legal–and by extension an economic and justice–system that heavily favors them.

Over time, people can begin to misconstrue these interpretations as truths so that those who are less educated in the law will assume that the way things are is the way they’re supposed to be. For example, the law in Washington State does not explicitly say that a corporation must act in the best interest of shareholders, but many people assume that is the case. As such we have a society in which business leaders are taught this is the only right way to do business and have created a system in which those who choose to do business otherwise are at a disadvantage.

The best way to combat this is through education. What do people tend to misunderstand about your practice area? What is fact and what is opinion? What does the law actually state and how does that differ from how people discuss it? Education creates empowerment, and only when everyone is empowered can we create a truly just society.

Strive for sustainability, not profitability

As mentioned above, we as a society have been led to believe that a business’s number one priority is to make as much money as possible. But if you’re not legally required to do so, what is the purpose of maximizing profit? Of course, a business needs to make money in order to survive, and the more money it makes, the more it can invest back into providing the products, services, and innovations that help consumers.

But at a certain point, a business simply doesn’t need to make any more money in order to fulfill its function. And the more it focuses on making money at all costs, the more it neglects other considerations. How often do executives choose to harm customers, employees, communities, or the environment in the name of profit?

It’s no secret that the law can be an extremely lucrative profession. But in order to maximize your profits, you have to ally yourselves with those who have the most money. Of course, in certain cases, this may be the right thing to do (the wealthy are not inherently less worth defending than the poor), but when you make decisions based on money, you will inevitably be forced to make decisions that make our society less equal and more unjust.

When considering which clients to take on, ask yourself why you’re doing so. And when thinking about finances, consider only what you need to be sustainable instead of what you need to be the most well off.

Remove harmful incentives

Money is a powerful motivator, but it often motivates people to make the wrong decisions. Several years ago, we decided to stop paying commissions to our sales team. We knew that if someone was worried about how they were going to pay their mortgage, they would not be incentivized to make the best decision for our clients, which would ultimately hurt everyone involved. When considering pay or other incentive structures at your firm, ask yourself how they affect people’s decision making. Are people being rewarded for making decisions in line with your firm’s values, or are they doing so in order to make the most profit?

Go against the grain

The only way to prove there’s a better way of doing something is to prove it. In 2015, when I decided to raise the minimum wage at my company to $70,000 a year, people told me it wasn’t possible. But I believed that our business would be better off if we paid our employees a living wage than it would if we simply paid them market rates. A lot of people talk about raising the minimum wage or the problem of inequality, but few people actually take steps to do something to fix it. What problems do you wish you could fix in society? How can you take a small step in doing so through your own work?

What about your clients? What do they value and how do they want to run their business? What would be the legal ramifications of doing so? Often, the main reason people don’t act is because of fear. But knowing that they are legally protected and/or understanding the legal ramifications of a policy or program they want to enact might be enough to convince them something is worth trying.

People like to joke about lawyers, but good lawyers are essential to creating a just and prosperous society for all. There are countless ways you can use your knowledge and influence to make the world a better place. How you do so is up to you.

Dan Price is CEO of Gravity Payments. He is best known for implementing a $70k minimum salary for everyone at the company and other unorthodox business practices. Through the Gravity Legal payments platform, Dan and Gravity help law firms reduce the cost and administrative burden of accepting client payments and trust deposits.

What I Learned About Visuals While Serving On a Jury

Have you ever wondered whether the advice you give to clients is always as sound in practice as it is in theory? Recently I was selected to serve as a juror on a 3-week medical malpractice trial. I had always wanted to serve on a jury. I felt it would be a golden opportunity to see what the visual presentation of a case looks like from the perspective of a juror – as opposed to the creator. Somewhat like a doctor who suffers injury or illness might experience treatment from the point of view of a patient, instead of their usual mindset as a medical professional.

Both the plaintiff’s attorney and defense attorney were experienced trial lawyers with excellent oratory and tactical skills. Their visual presentations could have been significantly improved, however, by adhering to the basic principles we preach as visual presentation experts. These include:

Both lawyers packed too much information into each slide. On their timelines and document slides, the text was too small, so the jury couldn’t read it. In addition to rendering these visuals useless, a number of my fellow jurors expressed irritation with the lawyers. Some wondered if they might be trying to hide something. In general, we felt burdened by information overload. Strive to include on a slide the minimum amount of information needed to convey the intended point.

One of the attorneys used a PowerPoint slide deck for all of his visuals. When experts were on the stand, he would cycle back and forth until he landed on the desired slide, sometimes taking a minute or two. While PowerPoint is sequential and appropriate for a step-by-step opening or closing, it is not nimble enough for direct or cross-examination. TrialDirector software is the way to go (if your budget allows, hire a courtroom technician to run it for you). Neither attorney used poster-boards. Key graphics should be printed on them and left displayed on an easel while the PowerPoint is also displayed. The combination can be an effective way to mix media and keep jurors’ attention.

During the trial, we were inundated with documents, with just a few images from anatomy books sprinkled in between. A handful of well-conceived, understandable graphics using icons or illustrations would have been considerably more impactful and persuasive than what we saw. Neither attorney was effectively able to focus and communicate his case themes. Both sides would have benefitted from using use text callout graphics – aka “text pulls” – where the key language is enlarged, instead of highlighted document pages, whenever possible.

On a typical document page shown by the plaintiff’s attorney, he had highlighted in yellow numerous lines. On top of that, he had underlined in red some of that already highlighted text, presumably to add additional emphasis. The result was that we didn’t know where to direct our attention. Ask yourself what the key point of an excerpt is and highlight only the text that is truly necessary to make the point. Consider using red bold text instead of yellow highlighting. Avoid using both at the same time.

The plaintiff’s attorney used a style template with a black and red background. While black can be associated with power and strength, more often than not it carries a negative connotation (fear, death, the unknown). Similarly, while red may be used to attract attention, it is often associated with bad, evil, or danger. A better choice might have been the use of blue tones, which project trust, strength, and confidence. Color subconsciously influences our thinking and is a subtle yet powerful thing. Either rely on a professional designer for appropriate color choices or familiarize yourself with basic color psychology.

One of the lawyers used no demonstratives during his lengthy closing, and the other had a standard bullet point PowerPoint presentation. As good as their arguments may have been, it was difficult to focus without having visuals. Closing arguments are the perfect time to illustrate analogies, use comparison charts, summary graphics, etc. In your last opportunity to sell your case to the jury, why not place it in an attractive package that jurors will want to buy?

Seeing visuals through the eyes of a juror was a valuable opportunity. As expected, I learned that the core principles that guide trial graphics experts are as true in practice as they are in theory.

Digital Afterlife: An Estate Plan for Your Facebook Account

Did you ever wonder what happens to your digital footprint when you pass away? Well you should, particularly if you are part of the 77 percent of Americans who go online every day. As the internet has become more of an integral part of our lives, our information — pictures, videos, financial, emails, social media accounts, and other personal information — is constantly being stored online. All of this information is known as your “digital assets.” While the internet has made our lives easier by allowing us to access our information with the simple push of a button, it may be difficult for our loved ones to do the same once we are gone.

Digital Estate Planning

Digital assets encompass any of your information that you store or use online – this includes social media accounts such as Facebook. While you may not consider these digital assets as having much monetary value, they store critical information or have sentimental value. Consequently, when you plan for your estate you should include your digital assets because they are an asset owned by you. Indeed, when it comes to your digital assets you will have to make special advanced arrangements so your executor – the person in charge of your estate when you pass away – can access them upon your passing. Many online providers, such as Facebook, Google, and Yahoo!, have specific procedures for handling your account upon your passing. In order to ensure that your wishes are carried out, you must follow their rules. Strictly speaking, providing usernames and passwords to another person, even your executor or successor trustee, may be a violation of the terms of service for many online accounts, and could cause trouble for your executor or successor trustee. You should also consider access to your computer and back-up hard drives, tablets, and smartphones. Being proactive is key when it comes to your digital assets so that they may be accessed when needed. And, as with any estate plan, regularly revisiting your plan for your digital assets is key.

Coordinating Your Digital Assets With Your Estate Plans

Depending on where you live your digital estate plan may need to be formalized into a legal document. You can then name an executor specifically for your digital assets or, alternatively, name someone with whom your traditional executor can work with in order to settle your digital estate. Make sure to instruct your executor as to the location of your digital asset inventory for easy access. Keep in mind that because your will becomes a public document upon your death due to probate, you should never put any of your username or password information in your will. Instead, have your will refer to an outside document that contains all the needed information regarding your digital assets.

If you have questions about handling your digital assets and how they fit in with your existing estate plan, please give me a call. As with any estate plan, make sure to keep me and any financial advisors you have up to date on the status of your digital assets so that I can ensure your overall plan properly handles them and adapts to any changes in the law or circumstances.

Successor to Your Family’s Business? What You Need to Know!

Baby Boomers are retiring in ever-increasing numbers—10,000 per day by one estimate! Many of these Boomers are retiring from a business they have carefully and lovingly built over many years of sweat, tears, and much fulfillment. And as the child of a Boomer, you’re now faced with the possibility of succeeding your parents in owning and managing that business. Or perhaps your interests and careers are elsewhere, and you want to see that business successfully transferred to someone outside the family who will continue to serve the business’s clients as well as your parents have. Or, realistically, you and your parents want to reap the full value of that business when it is dispositioned.

So, how can you and your parents ensure that transition is successful? What do you need to know, and who do you need to consult? Business exit planning does not have to be overly complicated. But it does have to be thoroughly planned and executed, ensuring the critical aspects are adequately addressed.

As the daughter or son of a retiring family business founder/owner, you will want to ensure your parents are well-prepared for a life of retirement and perhaps of travel, volunteering, time with grandchildren, and worry-free leisure. Your discussion with your parents about their retirement often begins with: What are they going to do now that they’re retired? How will they ensure they have meaning and purpose in their lives since these are so closely related to living a long, healthy, fulfilling life as they enter their later years. See “I’m Retired! Now What?” for more on leading a long and fulfilling life after retirement.

The second topic of discussion with your parents usually revolves around the question of what to do with the business when they leave. Will you or your siblings want to take over leadership of their business? Are you ready to do so? These are often very difficult discussions to have, yet very necessary. Has your family had open, frank discussions about what will happen to the family business—especially if it’s not clear who should manage the business when more than one of you wants to take on that role?

Or will you want to see the business successfully sold to a key employee or other third-party? Are you prepared to help your parents make that choice if they seek your advice? Is this a family decision, or one to be left solely up to your parents?

These are only the beginning discussions and actions that need to be undertaken as part of business retirement exit planning. We’ve covered this topic much more extensively in “Business Retirement Planning: It’s a Team Effort!” and suggested that an exit planning coach can be of much value in guiding a retiring business owner through the process.

Business succession planning requires allowing enough time to consider all the choices to be made and enough time to implement those choices. It’s important to start your planning early and to put the plan in writing. Whether you choose to work with an exit or succession planning coach, a business coach or consultant, or do it yourself, start early. Starting to plan too late or failing to plan at all are the two primary reasons so many business transitions fail, an outcome which is totally avoidable. So, start planning now!

[June 2019 Video] Business Succession Planning in the Internet Age | Doug Bend and Megan Yip

About the Event
“Business Succession Planning in the Internet Age” presented by Doug Bend and Megan Yip.

Doug Bend is the founder of Bend Law Group, PC, a law firm focused on advising small businesses and startups. He has been featured in numerous publications, including The Washington Post, The Huffington Post, Fox Business, MSN, Inc., and Forbes. Megan Yip helps attorneys, tech companies, families, and organizations address how to better plan for difficult situations presented by incapacity and death, in a world with an ever-changing tech landscape. She provides legal assistance, information, tools, and resources to guide you through the maze of what should be done with digital assets in the case of incapacity or death. She has helped families with estate planning, and post-death administration while working at Legal Aid of Marin, while working on the Policy Team at Twitter, and now in her own private practice.

The key learning points are:

  • The Importance of thinking about worst-case scenario planning for your business, including contemplating an injury that affects your ability to work or your death.
  • Why should consideration and intentional use of your technology infrastructure be part of your personal estate plan and especially your business succession plan?
  • How to include your technology infrastructure as part of your estate and succession plan. – How to build a team of professionals who can help you keep your technology and worst-case scenario plans working together.

3 Reasons You Want to Avoid Probate

When you pass away, your family may need to visit a probate court in order to claim their inheritance. This can happen if you own property (like a house, car, bank account, investment account, or other asset) in only your name. Although having a will is a good basic form of planning, a will does not avoid probate. Instead, a will simply lets you inform the probate court of your wishes – your family still has to go through the probate process to make those wishes legal.

Now that you have an idea of why probate might be necessary, here are 3 key reasons why you want to avoid probate if at all possible.

1. It’s all public record.

Almost everything that goes through the courts, including probate, becomes a matter of public record. This means when your estate goes through probate, all associated family and financial information becomes accessible to anyone who wants to see it. This doesn’t necessarily mean account numbers and social security numbers, since the courts have at least taken some steps to reduce the risk of identity theft. But, what it does mean is that the value of your assets, creditor claims, the identities of your beneficiaries, and even any family disagreements that affect the distribution of your estate will be available, often only a click away because many courts have moved to online systems. Most people prefer to keep this type of information private, and the best way to ensure discreteness is to keep your estate out of probate.

2. It can be expensive.

Thanks to court costs, attorney fees, executor fees, and other related expenses, the price tag for probate can easily reach into the thousands of dollars, even for small or “simple” estates. These costs can easily skyrocket into the tens of thousands or more if family disputes or creditor claims arise during the process. This money from your estate should be going to your beneficiaries, but if it goes through probate, a significant portion could go to the courts, creditors, and legal fees, instead.

Of course, setting up an estate plan that avoids probate does have its own costs. Benjamin Franklin wrote, “an ounce of prevention is worth a pound of cure.” Like the “ounce of prevention,” costs you incur now to put a plan in place are more easily controlled than uncertain costs in the future, especially when you consider your family may be making decisions while grieving. With proper planning, you can minimize the risk of costly conflict and also reduce or eliminate some costs, like court costs and executor fees; if there’s no probate case there won’t be any probate costs.

3. It can take a while.

While the time frame for probating an estate can vary widely from state to state and by the size of the estate itself, probate is not generally a quick process. It’s not unusual for estates, even seemingly simple or small ones, to be held up in probate for 6 months to a year or more, during which time your beneficiaries may not have easy access to funds or assets. This delay can be especially difficult on family members going through a hardship who might benefit from a faster, simpler process, such as the living trust administration process. Bypassing probate can significantly speed the disbursement of assets, so beneficiaries can benefit sooner from their inheritance.

If your assets are located in multiple states, the probate process must be repeated in each state in which you hold property. This repetition can cost your family even more time and money. The good news is that with proper trust-centered estate planning, you can avoid probate for your estate, simplify the transfer of your financial legacy, and provide lifelong asset and tax protection to your family.

Planning Your Summer Vacation? 5 Things to Consider Now

In many states, winter has thawed and now flowers are budding. This can only mean one thing: summer vacation planning season is here now. As vacation planning kicks into high gear, here are a few important things to add to your vacation readiness checklist.

Guardian nomination

If it’s just you and a spouse leaving for a getaway this summer, who is going to take care of the kids while you’re gone? And, heaven forbid, who will care for them if you don’t return? Double check your guardian nomination for your minor children so you know that if, on the very slight chance something goes wrong, your children will be in the right hands.

If you have not completed or updated a guardian nomination, now is the time to do so. Without this nomination, the court will determine who will raise your child if something were to happen to you, and it may not be the person you want.

For example, Sally has two boys. She’s concerned about who will raise them if she is not able to do so. Sally’s younger sister, Carey, is fairly wealthy (thanks to a favorable divorce settlement), is unemployed, and lives a life of leisure. Her carefully curated social media would have you believe she’s a well-off, stable jetsetter. On the other hand, Sally’s older sister Tracy is the total opposite. She recently adopted a boy with special needs from the foster system, and although she works incredibly hard at a museum, she does not earn much income. If a court were to look compare them, Carey could very well be the clear winner for guardianship. But, Carey is the last person Sally would ever want raising her kids because Carey does not share the same values or respect for hard work. Sally is also concerned that Carey would fight hard to win custody of the boys just so she would gain access to the boy’s inheritance.

Unfortunately, situations like Sally’s are a common occurrence for parents who haven’t named a guardian, and the courts do not have the resources to do a deep-dive into everyone’s background. This is why the nominations are so important. The guardianship nominations give you the opportunity to make your wishes known to the court. By having the guardianship nomination prepared, Sally can ensure that Tracy, who shares her values, will be the one raising her boys.

Beneficiary designations and other funding issues

Many people have an out-of-date beneficiary designation, or, at the very least, one that hasn’t been looked at in a while. Taking 10-15 minutes to log into your IRA, 401(k), and life insurance company’s website to double check your beneficiary designations is an easy way to put your mind at ease so you can relax on a tropical beach or explore the sights of a brand new city stress-free.

Beyond beneficiary designations, other funding issues with trust-based plans are sadly common. But many can be easily and quickly fixed. If you’ve opened a new bank or investment account, or bought a different home, let us know so we can work with you to update the funding of your trust. This type of work is just like touching up the paint at your house – quick and painless if you do it on a regular schedule – but a much bigger project if you let it wait. The great news is that you’ll rest easy on your vacation, knowing everything is in order back home.

Advance directive and powers of attorney

Getting sick or injured while traveling is stressful enough without the added worry of not having advance directives and powers of attorney in place. Knowing that your care will be handled according to your wishes makes travel easier. If you need a fresh copy of these documents, give me a call so we can make sure you have a readily accessible copy.


Are your will, trust, and other documents still unsigned? Maybe you’ve been reviewing them. It’s better to have a plan in place that addresses your big issues and concerns before leaving rather than waiting until it’s “perfect.” If you haven’t yet signed, give us a call so we can make sure your documents get signed properly. Remember, with a will or revocable trust you can always make changes in the future.

Stay organized

Where do you keep your hard copy and digital copy of your estate planning documents? Choose a safe location in your home to store at least one printed hard copy, and create a folder on your hard drive or personal cloud storage site so that you’ll always have access to a backup digital copy as well. Checking this to-do off your list before your vacations means one less thing to keep track of later. If you need a fresh copy because you’ve misplaced yours, give me a call. I am happy to help.

Client Communication Best Practices

By Alice Shikina

As a mediator, people come to me when their avenues of communication have completely broken down and they can no longer express ideas and be heard by the other side. Before you get to a place of impasse, you may want to revisit some common-sense ground rules during conflicts in your own clients. Use these guidelines early on in the relationship, so that you get plenty of practice and become a skilled communicator. When you do come to difficult moments in your client and personal relationships, your diligent practice will serve you well.

DON’T interrupt.

Interrupting is one of the biggest causes of conflict. When people are constantly being interrupted, they don’t feel heard and the channels of communication begin to break down. Have a sheet of paper and a pen to write down your thoughts during emotional conversations. When it is your turn to talk, refer to your notes.

DON’T call names.

Sometimes people resort to name calling to belittle the other person and make them feel small. No one likes to be called names. It isn’t conducive to solving problems, so just refrain from doing this.

DON’T yell.

When in conflict, some people yell as an intimidation tactic or because they do not feel heard by the other side. Unfortunately, yelling does not achieve the goal of being heard. It frequently results in escalating the situation.

DON’T be judgmental.

When couples have been together for some time, they develop filters through which they hear their partner. They begin to expect a certain viewpoint from the other side and don’t necessarily hear what is being said. Clients also develop judgment against their attorneys. As a relationship deteriorates, judgment grows, and defensiveness does as well. The less judgmental you can remain, the more information you will be able to elicit from your client during high conflict conversations. No one wants to be vulnerable and open if someone is going to be judging them. Keep this in mind when you are listening to your client’s side of the story.

DO actively listen to your client.

Active listening means you are purely listening to your client, and not simply waiting for your turn to speak. You are not judging what they are saying, but just listening. Practice active listening on a regular basis when not in conflict. If your client has a tendency to ramble, set time limits to how long they are allowed to talk. For instance, you can say, “Give me a brief description, about five-minutes’ worth, of what happened.” This will accomplish two things: 1. It will give your client an idea of how long they have to say their piece. 2. It gives you permission to interrupt them if they are going much past five minutes.

DO mirror your client

Once your client speaks, make sure you understand what was said by restating what you heard them say. Use phrases such as, “This is what I heard you say” or “If I understand you correctly, you are saying…”

DO approach issues from an interest-based stance instead of a position-based stance.

Position-based refers to each person’s position, such as “I want to go to Hawaii for vacation.” Interest-based stance refers to the underlying needs of each party. If you start from here, you may be able to come to a win-win agreement instead of a win-lose agreement. Instead of arguing about where you will go for vacation, consider that both parties want to go somewhere warm, not too far away and where there are beaches. Once you uncover what both sides’ interests are, you are better able to solve the problem for everyone.

DO ask questions…MANY questions.

Instead of asking questions that lead your client to agree with your side, ask genuinely curious questions about why they feel a certain way or what about your side of the argument makes them uncomfortable. Allow them to explore their thoughts and values through thought-provoking questions. Good questions to ask are, “What about this solution makes you uncomfortable?” “What are some of your reasons for declining this offer?”

DO keep issues separate.

Don’t start an argument about one thing and then add multiple issues to the conversation. Get through one issue at a time. If the argument is about who whether or not your client wants to settle the case, do not add the issue of how they have been a difficult client up to this point to this same argument. Discuss them separately.

DO be willing to compromise.

Relationships take compromise and if you are not open to both parties compromising, you won’t get very far. Be creative when it comes to what you can offer to the other side to get them to compromise.