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Circle of Legal Trust

The Art of Negotiation in Mediation
Is Timing Everything? Negative SEQ
Have you been hit?
Effective Attorney
Marketing for 2014
Attorney Fee Sharing
Civility in Depositions
s Vegas 2013
e first ever COLT
get together
C.O.L.T. contents
Table of Contents
Publisher's Foreword ..... ... ..... ..... ... .. ... .. ... ................ ..... ..... ... .... . 2
Michael Ehline
Admission of OSHA Regulations to
Prove Negligence in W orksite Injury ....................................... 3
Jonathan Rosenfeld
Negative SEO .. ..... ... ..... ..... ... .. ... .. ... ................ ..... ..... ... ..... ..... ... ... 7
Steven Sweat
. 1 . D . . 10
IVI 1ty In epos1t1ons ... .. .. ... .. .. .. .. .. ... .. ... ... ..... .... .. .. .. ... .. .. .. .. ... . .
Anthony Castelli
Don't Destroy Your Personal Injury Claim with
your Personal Social Media Posts ......................................
Seth Price
Ethical Rules on Attorney Advertising & Fee
Sharing Get Tested in Rhode Island ...................................... 6
David Slepkow
Information That Is Kept From Juries in
Personal Injury Trials: Secrets Revealed ................................ 20
Matthew Dolman
Effective Attorney Marketing in the
Digital World for 2014 and Beyond! .... ..... ... ..... ..... ... ..... .... .. .. . 23
Gerrid Smith
The Art of Negotiation at Mediation
. . E h. ? 28
s 1m1ng ver-yt 1ng ..... ..... ... ..... ..... ... ..... .... .. .. ... .. .. ... ... ..... ..... .
Michael Ehline
Editor's Closing .. ... ..... ..... ... .. ... .. ... ................ ..... ..... ... ..... ..... ... .. . 33
Steven Sweat
October 2013
Page 1
C.O.L.T. publisher's foreword
Hello and welcome to our honorary society of vetted
lawyers and search engine experts. I am attorney
Michael Ehline. I am the founder of the
Circle of Legal Trust.
Representing a grand experiment in "understanding attorney search", the Circle of Legal Trust is a
trust based system, designed to protect and promote and develop trusted branding and prospective
client relations for licensed attorneys, internationally. As our motto states, it is the place "where the
law meets the semantic web."
As the rules state, there are various levels of membership. The highest levels of membership starts
with being "patched in". Authorized members have their own column in COLT Journal and are en-
tered into a trusted "whitelist" at http:/ /
The Journal is a fusion of internet related issues, as well as related legal issues presented to users of
the world wide web. From video taped depositions conducted via satellite, e-discovery, online legal
ethics, social media, all the way to attorney marketing. Prior to April of 2012, there was a serious void
for busy trial lawyers, barristers, solicitors and litigators trying to take advantage of the cutting edge
technology afforded by Google, Bing, and Yahoo!. There was no peer support offered to law firms
who had been hit by the Google Panda and Penguin updates, or who had hired unworthy SEO com-
panies and in house marketers. Something had to be done to lift the "Sword of Damocles" of igno-
rance from the heads of worthy lawyers.
Enter the Circle
In the summer of 2012, several attorneys who were the very first users of Google Plus began to col-
laborate and realized that "one is none, two or more is one", and we started to share information
about attorney search, proper online etiquette, understanding and interpreting the often vague, am-
biguous and unintelligible local and organic search engine quality guidelines. We all decided that in
order to do well online, one could not hire someone to run their online destiny. We discovered that
one must integrate the search engines into their practice and consider it to be no different than filing a
motion with the court. This is really what sets us apart. Our members learn what the experts know,
and then mentor other members in their chapters. Being a member of COLT is a brand insurance
policy that comes with fraternal support.
We are proud to announce exponential growth in membership since its formation in the summer of
2012. In fact, this very journal commemorates our first annual Las Vegas Convention. See you live or
at the HOA and enjoy our magazine and various web properties. Michael Ehline, Esq.
October 2013
C.O.L.T. worksite injury
The Admission of OSHA Regulations
to Prove Negligence in Worksite Injury Cases
By Jonathan Rosenfeld
Background Information and History of the
Occupational Safety and Health Act (OSHA)
The Occupational Safety and Health Act healthful working conditions and to
(OSHA) was passed by Congress in 1970 preserve our human resources."
for the purpose of ensuring a safe work-
place for employees and defining an
employer's standard of care in a work-
place. The Act contains both health and
safety standards that have been effec-
tive in assisting worker-plaintiffs in
recovering damages against employer-
defendants and other third parties.
Prior to the enactment of OSHA stan-
dards, workers in the United States had
few protections available to them under
the law. The economy of mass product
in the United States did not function in
a manner to make workplace safety a
priority. Instead, it was more affordable
for employers in mass production in-
dustries to replace a dead worker than
it was to place safety measures onto the
Throughout the 18oos and early 1900s,
workers continued to be injured during
World War I and World War II. The in-
crease of industrial production during
World War II left over 14,000 workers
dead and 2 million individuals injured
due to inadequate workplace standards.
It was not until the eventual passage of
OSHA in 1970 that Congress sought to,
"assure so far as possible every working
man and woman in the Nation safe and
October 2013
Admissibility of OSHA Regu-
lations in Work Accidents
And Construction
Site Injury Cases
The majority view is that OSHA viola-
tions are admissible as evidence in tort
cases. Some courts only view OSHA vio-
lations as "some evidence" that will not
fully prove negligence. ( contd)
C.O.L.T. worksite injury
The Admission of OSHA Regulations contd.
to Prove Negligence in Worksite Injury Cases
There are also a minority of jurisdic-
tions that hold OSHA violations are
"per se" negligence or do not qualify as
any evidence in negligence cases.
The states that have chosen to exclude
evidence of OSHA violations entirely
are Arizona, California, Maryland,
Michigan and Mississippi. As to federal
circuits that allow OSHA violations to
be entered as some evidence, these in-
clude the Third, Fourth, Eighth and
Ninth Circuits.
Understanding the Different
Industries Governed by
To decide which OSHA regulations are
applicable in a negligence case, it is
necessary to consider the type of indus-
try in which an injury has occurred. The
OSHA standards are divided into the
following categories: General Industry,
Construction, Maritime and Agricul-
The specific regulations under each in-
dustry "type" then convey the standards
for inspections, general safety and
health provisions, occupational health
and environmental controls, fire protec-
tion and prevention, scaffolds, fall pro-
tection, use of equipment and informa-
tion as to toxic and hazardous substanc-
es. As to the construction industry,
there are also specific standards for ex-
cavations, steel erection, masonry con-
struction and underground construc-
October 2013
For plaintiffs who wish to use a citation
in a negligence case, it will be necessary
to consider the work environment in
which the accident occurred. A plaintiff
can then find the specific standards put
forth by the Occupational Safety and
Health Administration for this particu-
lar industry.
For example, a plaintiff injured by a
broken scaffold may wish to admit evi-
dence of an employer's failure to main-
tain the scaffold according to OSHA
regulation 1926 Subpart L. Under 1926
Subpart L, the Administration is very
careful to state that certain scaffolds
(those with direct connections to floors
or roofs) must be able to hold at least
four times the tipping moment by the
Proving "Duty Owed" in
OSHA Cases
In addition to setting forth standards
for the maintenance of equipment and
other aspects of workplace safety, the
OSHA regulations also set forth the
"duty owed" for fall protection systems.
Statutes that discuss the "duty owed" by
an employer, such as the duty to have
fall protection in place, can be highly
relevant for proving the duty element in
a negligence case.
This type of statute typically discusses
the actions that an employer must take
to improve the safety of a workplace. As
to the fall protection systems statute, an
employer must determine if (contd)
C.O.L.T. worksite injury
The Admission of OSHA Regulations contd.
to Prove Negligence in Worksite Injury Cases
walking surfaces have structural integ-
rity to support employees. There are
also requirements that an employer add
a guardrail to systems that have unpro-
tected sides that are six feet or taller. If
an employee was using equipment that
did not contain this protective guardrail
at the time of an accident, then photo-
graphs of the unprotected equipment or
other evidence could be admitted to
show how the employer failed to meet
his or her requisite duty of care under
the law.
In jurisdictions that allow OSHA viola-
tions to be admissible in cases involving
negligence per se, then a single viola-
tion could confer liability on an employ-
er in a personal injury case without a
need for additional evidence or proving
other legal elements. In personal injury
cases, negligence per se refers to a legal
doctrine that enables a plaintiff to prove
negligence by virtue of the violation of a
statute or regulation. In this type of
case, the plaintiff will need to prove that
the defendant was in violation of the
statute, there is a criminal penalty im-
posed under the statute, an action
caused harm that the statute was in-
tended to prevent and that the plaintiff
was a member of the protected class
under the statute.
Most jurisdictions that allow OSHA vio-
lations to be admitted in negligence per
se cases will require that the plaintiff by
an employee of the employer. This is
due to the interpretation that these
courts have in which OSHA regulations
October 2013
are intended to protect harm to employ-
ees on worksites. An independent con-
tractor may still be considered to be an
employee when OSHA violations are
used, as courts have found that OSHA
imposes a duty on employers to protect
the safety of every employee at an
employer's worksite. This means that
even independent contractors are con-
sidered protected under the statute.
Use of Other General OSHA
Standards in Personal Injury
There are also other instances in which
OSHA standards may apply more gen-
erally in personal injury cases. Current-
ly, there is no specific statute under
OSHA that protects employees from
violence at the workplace. Rather,
OSHA goes on to define a standard of
care under a general provision that
states employers must provide employ-
ees with a place of employment that is
"free from recognizable hazards that are
causing or likely to cause death or seri-
ous harm to employees." This means
that an employer does have a legal duty
to ensure that an employee can work
within a worksite that is free of hazards
that could cause him or her to experi-
ence serious injuries, physical harm or
even death.
Those employees who have been subject
to intimidation, threats or other in-
stances of violence may have legal re-
course available to them due to a viola-
tion of Section 5(a)(1). (contd)
C.O.L.T. worksite injury
The Admission of OSHA Regulations contd.
to Prove Negligence in Worksite Injury Cases
Researching OSHA Regulations for Negligence Cases
Those plaintiffs who are interested in asserting a legal claim against an employer
can find a full listing of the OSHA regulations at http:/ / The website
contains a "regulations" part that lists the black letter law for workplace standards.
Plaintiffs can also work with attorneys who have a specialty in this field and under-
stand how OSHA regulations may be used in a particular jurisdiction. A violation
of an OSHA regulation may be a crucial aspect of proving one's personal injury
case before a judge and jury, and a lawyer can help choose the appropriate regula-
tions to use in one's case.
Jonathan Rosenfeld is a personal injury attorney in Chicago and
regularly handles serious construction accident cases on behalf of
injured workers and their families. For more information on Chi-
cago construction accidents and other personal injury matters
visit http:/ /
C.O.L T. Initiatives
An attorney managed site providing consumers access to value added informa-
tion on a state based platform. Members of the Circle of Legal Trust may be al-
located a state or city based website or category which provides the attorney an
additional online marketing channel
THEe ire leOFt:il\
Attorneys assisting attorneys in search and social issues surrounding marketing
your law firm online. COLT members meet regularly on Friday mornings and
generously donate their time in helping their peers get better results from digi-
tal marketing efforts.
October 2013
C.O.L.T. negative seo
Negative ny steven sweat
The Ethical and Legal Implications of Negative
Search Engine Optimization (SEO) Tactics For
Attorneys and Their Agents
As attorneys we have to face the fact that we are
in a competitive business where we are market-
ing our services and trying to convince the
public to hire us rather than another lawyer. The
arena where this competition to gain clients is
probably as fierce as any other is the internet.
Like all business persons offering services for
hire, attorneys can and, I believe, must assert
their presence on the web. There are several
ways to do internet marketing as an attorney
which include buying placement through paid
advertising the most popular of which are "pay
per click" campaigns such as Google Adwords.
The generic term for trying to gain placement
with search engines through natural language
searches in the so-called "organic" (i.e. non-paid
listings) is called "Search Engine Optimization"
(SEO), which has been broadly defined as fol-
lows: "the process of affecting the visibility of a
website or webpage in a search engines natural
search results."
Can (and Should) Attorneys
Engage in "Positive" Search
Engine Optimization to Pro-
mote Their Online Content
For the Purpose of Gaining
There are many different ways to engage in
positive and ethical SEO practices as an attor-
neys. These include flrst and foremost provid-
ing good, original content targeted towards
your potential clients. Providing good on-page
October 2013
content will tend to draw your target audience
towards your website and share this informa-
tion with others which will increase trafflc and
visibility and affect your "pagerank" with the
various search engines like Google. Social
media is also a great way to promote content
on websites and blogs where a lawyer has pro-
vided good information that can attract poten-
tial clients. There are various other ways that a
lawyer can "shine a light" on their content and
attract the attention of the search engines and I
think every lawyer can and should be constantly
engaging in providing relevant, original content
on a weekly if not daily basis for the purpose of
spreading information about their practice and
their expertise in their area of law. This is a
long-term process that can take months or
years to see results by way of higher search
rankings but, once you have established a well
designed, original site or blog and continue to
promote it, it will no doubt begin to appear for
searches relevant to a lawyer's practice. (Contd.)
Page 7
C.O.L.T. negative seo
NegatiVe SEO (contd.) ny stevensweat
What is "Negative SEO" and
Are Attorneys Or Their
Agents Engaging in These
Unfortunately, the room for organic or natural
search results appearing on the first page of
Google or any other search engine is small and,
some think, continuing to shrink. For example,
on average, there are about 10 natural search
result slots on the average first page of Google
and sometimes less depending upon the
number of local search results and sponsored
listings for any given term. This has led some
SEO practitioners and their clients to try to
"knock off' the competition from page one so
that their site appears higher. One way which,
in my opinion, is a bit insidious, is to attempt to
negatively affect the rankings of competitor's
sites through various tactics including
surreptitious linking of the competitor's site to
other sites and resources which the search
engines view as negative associations. This can
lead to penalties from Google and other search
engines which lower the competitor's site
Unfortunately, in larger markets like Los
Angeles and in the more competitive practice
areas like personal injury or criminal defense,
these tactics have begun to be employed by
lawyers and the persons or businesses they hire
to do SEO services. I have seen this in my
practice and other practitioners have also seen
more and more evidence of this in recent years.
What Are the Ethical and
Legal Rules Which May Affect
A Law Firm or Their SEO
Consultants if They Choose to
Engage in "Negative" SEO?
In my opinion (and the opinion of Google
executives including Matt Cutts and others)
negative SEO tactics are not only not very
effective but, also completely unethical from a
business standpoint. If a site owner proves
that a competitor has been engaging in negative
SEO practices, this would obviously give rise to
potential civil liability against either the
practitioner or their client (i.e the competing
law flrm). Most every state has both common
law and statutory causes of action for
intentionally interfering with a prospective
economic advantage. In California, for
example, the tort is defined as follows:
"The tort of intentional or negligent
interference with prospective economic
advantage imposes liability for improper
methods of disrupting or diverting the business
relationship of another which fall outside the
boundaries of fair competition." Settimo
Associates v. Environ Systems, Inc. (1993) 14
Cal..App.4th 842, 845.
Additionally, California Business and
Professions Code section 17200 provides for
injunctive relief, restitution and attorney's fees
for "any unlawful, unfair or fraudulent business
act or practice and unfair, deceptive, untrue or
misleading advertising. " (con td.)
Steven M. Sweat is a founding partner of Glotzer & Sweat, LLP, a personal injury
law firm based in Los Angeles, California. He is a proud member of the
Circle of Legal Trust and Editor-in-Chief of the COLT Magazine.
October 2013
C.O.L.T. negative seo
Negative SEO
By Steven Sweat
Going beyond the potential for civil claims for
injunctions or money damages, attorneys are
also bound by rules of professional conduct
related to advertising efforts. Most State Bar
Associations or other regulating bodies have
established these rules based upon the Model
Rules of Professional Conduct set forth by the
American Bar Association. The potential rules
implicated in negative SEO practices.
Model Rule 7.1: "A lavvyer shall not make a
false or misleading communication about the
lawyer or the lawyer's services" in relationship
to any effort to advertise a lawyer's services.
Model Rule 7.2: Requires any communications
or publications related to advertising a lawyer's
services include the "name and office address
of at least one lawyer or law firm responsible
for its content."
For all these reasons it is neither good business
practice nor ethical legal practice, in my
opinion, to engage in "negative SEO" tactics.
There are so many positive ways to influence
your own search rankings and exposure on the
internet and a lawyer's time and resources
should be devoted to building a positive brand
and image. I t is not worth the risk of potential
civil claims and ethical claims not to mention
"bad blood" that is created among colleagues in
the legal profession for the very limited chance
that one's negative SEO techniques might
actually knock a competitor off page one for
some, limited period of time. Google has been
October 2013
tracking this issue and has taken many steps
recently to adjust their algorithms to negate the
effect of such campaigns and simply tools like
disavowal of links can be used to fairly easily
defeat negative SEO efforts. As with
everything else in life, it is better to play fair
and work hard!
Resources and Citations:
Wikipedia: Search Engine Optimization:
http:// en.
American Bar Association, Rules of Professional
Conduct -
http:/ / groups/ professional_re
sponsibility /publications I model_rules_ of_profession
Google Webspam Team Head, Matt Cutts Youtube
Discussion of Ineffectiveness and Remedies for
Negative SEQ:
http:/ /
C.O.L.T. civility in depositions
CiVilitY. in By Anthony Castelli
The public's perception of an attorney is that they
will demean and be derogatory to witnesses every
chance they get.
This article will examine why this
is usually a misconception in the
context of a deposition. During
the course of a lawsuit the attorney
for the other side will want to take
the deposition of witnesses includ-
ing the person bringing the law-
As I only represent injured parties,
my clients always have much
worry as to what goes on in a de-
position, what they will be asked
and how they will be treated by the defense at-
torney hired by the insurance company. I allay
their fears by explaining the process, role playing
and preparing them. Very few lawyers are abu-
sive although some can be . That is why the legal
profession led by State Bar Associations and Su-
preme Courts have moved for Rules of Civility
and Professionalism.Cl) In Ohio the profession-
alism commission is now over 20 years old.
What is a Deposition and Why
Combine Civility With It
A deposition is a sworn statement with
notice to the other side to be present and
cross examine if they like. This is usually a
question and answer session with a court
reporter typing the testimony or a video-
grapher recording the testimony. This is
October 2013
distinguished from an affidavit which is
simply a statement in writing that is sworn
to be true in front of a notary. Depositions
are tools to find out what knowledge wit-
nesses have. It is part of the discovery
process. Although in certain cases depo-
sitions can be introduced at trial.
As depositions are usually held in lawyer's of-
fices there is no judge present to enforce the
rules. So there is no one there to police the
lawyer's conduct , but themselves. That is why
civility defined as:
ucivility is claiming and caring
for one's identity, needs and be-
liefs without degrading some-
one else's in the process," <
Continued ....
C.O.L.T. civility in depositions
Civility in Depositions
con tel.
... is critical in a deposition setting.
The Ohio Committee on Professionalism
Civility in Deposition Guidance
The Ohio commission has issues a list of does
and don't regarding depositions. Although they
do not have force of law they are in essence
guideline to civility regarding depositions. <
Some of the do's they
recommend are:
., Cooperate on scheduling. Don't just sched-
ule a deposition \.Vithout calling your oppos-
ing counsel so they can coordinate their cal-
., If a deposition needs to be rescheduled t1)' to
cooperate to get it done unless your clients
rights are adversely affected.
., If you are going to use documents or photos
try to have multiple copies so all attorneys
get a copy.
., Try to agree on a reasonable time limit for
the deposition
., Treat the other attorney and the witness with
October 2013
., If you have a problem with the other attor-
ney ask to go off the record and go outside
and try to agree on any problem issues. If
you can not agree consider calling the Judge.
(I consider this a bad idea as what Judge
wants to be interrupted and make a decision
off he cuff over the phone. ) The Ohio civil
rules as do most jurisdictions have a proce-
dure for handling abusive questions or ac-
tions. <
Some of the recommended
dont's are:
X Making
Speaking objections
which are
often an attempt to coach the witness.
Simply say object from and substance and
you should be protected.
X Insttuct a witness to refuse to answer unless
the testimony is privileged, work product,
or self incriminating or you believe the
questioning is conducted to unreasonably
annoy, embarrass, or harass.
X Make rude and degrading comments to the
witness or opposing counsel.
X Take a break with your client deponent
while a question is pending . The obvious
implication is that you will be coaching the
witness on the answer.
But What if The Deponent Is Recalcitrant
Sometimes the deponent will not cooperate.
This is not a question of Civility but a question
of what you can do under the law. You need to
C.O.L.T. civility in depositions
Civility in Depositions
keep control of the deposition. I f it gets too bad you should ask to adjourn the deposition and ask
the court for sanctions. The video below is a rather comical example. Caution it has obscenity in
it. Watch it at your own risk. Let me know if you ever had a deponent like this after you get done
http:/ /
Anthony Castelli is an Ohio personal injury trial lawyer with over 32 years
experience and 25 civil jury trials. You can learn more about Anthony at
W\ . He handles accident and injury claims through out
the State of Ohio and especially in Cincinnati, Columbus, Dayton, West
Chester and Mason, Ohio
1. http:/ /
2. http:/ / /Boards/CP /default. asp
3. http:// /Publications/Depositions.pdf
4. http:/ / /LegalResources/Rules/ civil/ CivilProcedUle.pdf
October 2013
Page 12
C.O.L.T. social media
Don't Destroy Your Persona/Injury Claim
With Your "Personal" Social Media
By Seth Price Posts
By now, most everyone with a digital presence has
heard the warning multiple times ....
Whether you're a student, an employee,
or a business operator, you're likely
aware that posting status updates,
tweets or photos that depict you acting
irresponsibly could cause you unwanted
trouble in your public life.
Assuming you pay attention to your
own social media activities and those
with whom you're connected, it's rela-
tively easy to determine which posts
and statuses are free of risk and which
might cause you problems. For most
responsible people who've been using
the Internet for more than a little while,
all it takes is a little common sense.
But in the legal system, and personal
injury cases in particular, the threshold
starts to become much smaller when we
examine what sorts of behaviors are
"safe." Certainly, most forward-think-
ing people would hesitate before tweet-
ing about being intoxicated in public, or
posting pictures that show them riding
a motorcycle without a helmet. But if
you're a personal injury plaintiff, these
are far from the only avenues by which
social media can jeopardize your claim
to restitution. Depending on the details
of your injury claim, status updates,
photos and various other online activi-
ties even one that seem innocuous to
October 2013

the everyday observer, can offer evi-
dence that will destroy your case.
As soon as you become part of a person-
al injury case, you enter a situation in
which the opposing side will attempt to
discredit your claim in any way pos-
sible. One of the greatest advantages to
obtaining legal representation as soon
as you can is to guard you against
making mistakes that might imperil
your claim. Most injury victims who've
read a few lawyer sites know they
should avoid making statements to in-
surance adjusters or representatives of
the defendants. Most know they should
be wary of discussing the details of their
case with anyone other than their own
attorneys. With such a large portion of
our everyday lives now depicted online,
however, even the most routine activi-
ties can be used to undermine your
claim to compensation.
Let's suppose, for example, that you
break an ankle in a slip and fall acci-
dent. If you pose for a picture while
being supported by a friend, the opposi-
tion might be able to argue .... (contd)
Page 13
C.O.L.T. social media
Don't Destroy Your Persona/Injury Claim
With Your Personal Social Media Posts contd.
in the future that you were able to stand
on your own, thus calling into question
the severity of your injuries. For non-
economic damages, such as pain and
suffering, social media becomes even
more potentially destructive. In these
instances, even the most mundane de-
tails, such as your facial expressions in
photos, can be used by the defendant's
attorneys to argue that the accident did
not cause as much damage as you are
claiming to your happiness or the qual-
ity of your life.
These tactics are not just hypothetical;
they come up frequently in personal
injury suits, often with case-altering re-
sults. Consider the story of a personal
injury claimant in Gwinnett County,
Georgia. The plaintiff, a 22-year old
hairstylist who had broken an arm and
suffered a laceration to her forehead in
a car accident, said that her injuries had
kept her away from work and caused
her pain and suffering. The damage
amount awarded by the jury, initially
$237,000, was lowered to $142,000
after the defense presented the jurors
with an account of the plaintiffs Twitter
activities following her injury. She hap-
pily tweeted about being able to carry a
purse with the arm that had previously
been broken, and in further updates re-
ferred to an "epic weekend" spent in
New Orleans and posted photos with
friends on the beach. Both the
defendant's and plaintiffs attorneys
later agreed that her Twitter activities
had damaged the credibility of her case.
October 2013
Even if you don't offer any evidence that
can be used against you by the opposing
lawyers, your social media activities can
still threaten the value of your settle-
ment. For example in the Georgia case
above, the plaintiffs attorney, while in-
sisting that none of his client's Twitter
posts had contradicted the earlier state-
ments she made about the injuries, ad-
mitted that her activities may have made
the jury less sympathetic.
~ ~ ~ t i l

es OC co
The safest suggestion for personal injury
victims is to stay off social media alto-
gether until the case is successfully liti-
gated, but unfortunately - even when
presented with the stakes - not every
claimant is willing to heed this advice.
Especially for those in their twenties or
younger who've grown up with the Inter-
net, the prospect of deactivating their
Facebook account or halting all tweets
may be unthinkable. If after having had
the possible consequences explained to
them, your personal injury client is still
Page 14
C.O.L.T. social media
Don't Destroy Your Personal Injury Claim
With Your Personal Social Media Posts contd .
unwilling to suspend his or her social
media accounts, encourage them to at
least audit them thoroughly.
This Means:
.., Adjusting settings to make their pro-
files private and non-searchable.
.., Not accepting friend requests from
anyone they do not know personally,
and de-friending or blocking anyone
they do not seriously trust.
.., Not uploading photos or videos any
time between the moment of the
injury and the resolution of the
claim. If such items have already
been uploaded, they should be taken
down as soon as possible.
.., Being extremely wary about what
their friends and acquaintances post,
especially if those users have public
profiles. Sometimes a friend may
unknowingly tag a plaintiff in a post
or photo that later gives the opposi-
tion the opportunity to discredit his
or her claim.
.., Not discussing any element related
to the case with anyone online. This
obviously includes the discussions
claimants have with their lawyers,
but also includes any details pertain-
ing to the accident, the injury, or the
plaintiffs recovery. Posting any-
thing about "recovering well," for in-
stance, can cause serious problems
later on when a judge or a jury is
trying to determine what a plaintiff
is owed.
As more and more of our daily lives get
wrapped up in the internet, there is less
and less conscious thought that what we
post online instantly and permanently
enters the watchful eye of the public.
With opposing attorneys seizing any op-
portunity to fight a claim, a conversa-
tion on safe, responsible use of social
media needs to be a staple of the attor-
ney-client relationship in a personal
injury case. The minimal message a
client should take away is this - don't
post anything online if you don't want
the other side to see it.
Sources: Technorati
Seth Price is a founding partner of Price, Benowitz LLP, a prominent
personal injury law firm based in Washington, D.C. with offices in
Virginia and Maryland. You can find more information on his
law firm at: http:/
October 2013
Page 15
C.O.L.T. attorney fee sharing
Ethical Rules on Attorney Advertising
& Fee Sharing Get Tested in Rhode Island
Perhaps, the most significant By David Slepkow
case regarding the ethical implications of out of
state attorney advertising and attorney to attorney
referral fees in personal injury cases derives from
the little State of Rhode Island.
In re application for Registration by the
Law offices of James Sokolove, LLC,
was a heavily fought out spat between a
bunch of local Providence area injury
lawyers against James Sokoloves' well-
oiled national advertising machine. The
Ocean State Lawyers who battled James
Sokolove all the way to the Top Tribu-
nal in Rhode Island are some of the best
known and experienced Injury Attor-
neys RI has to offer. Apparently, these
big name local Injury players did not
want Sokolove's Law Firm, the modern
day Goliath, competing on their turf.
The Sokolove Law Firm
According to a 2009 Groundbreaking
Sokolove expose by Boston Magazine:
In 2007 Sokolove
"paid over $20 million to promote
., his firm, twice as much as the next-
biggest spender."
"Sokolove's firm is currently keeping
., tabs on some 10,000 open cases. Ap-
proximately 300,000 calls and e-
mails come into his office each year,
more than at any other firm."
October 2013

* {!
{1 tr

Synopsis of Rhode Island Injury
Lawyer's Battle to Keep James So-
kolove From Opening a RI Law
The lawyers in Rhode Island waged
battle with James Sokolove on three
fronts to keep him out of Rhode Island.
The first front was an "initial complaint,
filed with the Disciplinary Counsel and
referred to the Disciplinary Board, al-
leged that Sokolove's television and
print advertisements violated numerous
provisions of the Rules of Professional
Conduct, specifically those concerning
attorney advertising when the lawyer is
not licensed to practice law in Rhode
Island." Id. This complaint was dis-
missed by a screening panel summarily.
I d.
Page 16
C.O.L.T. attorney fee sharing
Ethical Rules on Attorney Advertising
& Fee Sharing Get Tested in Rhode Island
After the dismissal, the second front was
immediately filed which was "a com-
plaint with the UPLC, essentially alleg-
ing the same violations that had been
raised before the disciplinary proceed-
ings." I d. The UPLC is the Unauthorized
Practice of Law Committee. Their ef-
forts were thwarted once again. Accord-
ing to the RI Supreme Court decision:
"The UPLC found that there was prob-
able cause to proceed; however, Soko-
love and his counsel met informally with
the UPLC and reached an informal reso-
lution agreement" Id.
The third and final attempt played out
on the front pages of the local newspa-
pers and in front of the RI Supreme
Court. In 2009, these Attorneys dug in a
proverbial trench in in their last stand in
front of the highest court in the state,
The RI Supreme Court! The petition
that was filed by these injury attorneys
stated that they were, "objecting to the
application of the respondent, James
Sokolove (Sokolove), to register and
practice law as a Rhode Island limited li-
ability entity (Sokolove Law, LLC)" I d.
In the end, Sokolove was allowed to
open a personal Injury law firm in
Rhode Island when the Court clearly and
succinctly declared "We approve the ap-
plication." Id. These accident lawyers
appeared to have lost all the battles and
the war when the Court rejected their ar-
guments and allowed Sokolove's law
firm to do business in Rhode Island
October 2013
in January 2010.
This litigation raises the question of
whether the time and funds expended
would have been better used competing
with Sokolove rather than trying to ban
his firm from the State.
Court Opines on Fee Splitting
between Lawyers and Attorney
Most states, including Rhode Island,
follow the Model Rules of Professional
Conduct from the American Bar Asso-
ciation to some degree or another in
drafting their own rules as to how attor-
neys may advertise and divide case fees.
ABA Model Rule 1.5 (e) states as follows:
" (e) A division of a fee between lawyers
who are not in the same firm may be
made only if:
(1) the division is in proportion to the
services performed by each lawyer or
each lawyer assumes joint responsi-
bility for the representation;
(2) the client agrees to the arrange-
ment, including the share each
lawyer will receive, and the agree-
ment is confirmed in writing; and
(3) the total fee is reasonable."
Page 17
C.O.L.T. attorney fee sharing
Ethical Rules on Attorney Advertising
& Fee Sharing Get Tested in Rhode Island
In a related rule on Attorney advertising,
Model Rule 7.2, the guidelines state:
"(b) A lawyer shall not give anything of
value to a person for recommending the
lawyer's services except that a lawyer
may ... refer clients to another lawyer or
a non-lawyer professional pursuant to
an agreement not otherwise prohibited
under these Rules that provides for the
other person to refer clients or custom-
ers to the lawyer, if
(i) the reciprocal referral agreement
is not exclusive, and
(ii) the client is informed of the exis-
tence and nature of the agreement."
The Rhode Island Rules of Professional
Conduct are basically modeled after
these rules. However, there is an addi-
tional provision (Rule 7.2(f)) which also
states as follows:
"Any lawyer or law firm who adver-
tises that his or her practice includes
or concentrates in particular fields of
law and then refers the majority of
cases in those fields of law or of that
type to another lawyer, law firm or
group of lawyers shall clearly state
the following disclaimer: "1. 'Most
cases of this type are not handled by
this firm, but are referred to other at-
torneys[,]' or if applicable: 2 . 'While
this firm maintains joint responsibil-
ity, most cases of this type are re-
ferred to other attorneys for principal
October 2013
In the Sokolove Case, the Court stated
"Clearly, the Rules of Professional Con-
duct anticipate and permit attorney-to-
attorney referrals; fee-splitting, how-
ever, is regulated more stringently to
protect the client from unscrupulous
practitioners." The court noted that
Attorneys are prohibited from paying
non-lawyers or anyone else for funnel-
ing business or "channeling profession-
al work" but, that attorney to attorney
fee splitting is basically permitted so
long as it complies with the guidelines
set forth in the rules stated above. The
court allowed Sokolove to continue ad-
vertising in the state under these rules
and continue to refer cases to other law-
yers for a share of the fee.
What Can Lawyers Glean From
The Rhode Island Sokolove Case?
The lesson to be learned in this instance
is to carefully review your own State Bar
guidelines on both fee sharing among
lawyers and advertising. Many times,
attorneys want to advertise for different
practice areas in different geographic
locations for the purpose of obtaining
some portion of the attorney's fees de-
rived from these cases. This can be a
perfectly legitimate and ethical practice
but, it is important to know if the juris-
diction in which the advertisements are
placed has restrictions or requirements
on fee sharing such as full disclosure to
the clients, some (contd)
Page 18
C.O.L.T. attorney fee sharing
Ethical Rules on Attorney Advertising contd
& Fee Sharing Get Tested in Rhode Island
"joint responsibility" for the cases, etc. It is also crucial to know whether that par-
ticular state bar association requires disclaimers for such ads in the event that the
referring attorney will not actually be handling the claim from start to finish.
David Slepkow is an attorney in Rhode Island and a founding
member of the Circle of Legal Trust. He writes on various legal
topics of interest for family law, criminal defense and personal
injury. His personal injury blogs can be found at the following
URLs: and
Editor's Hot Tip
No Time To Blog!?! Try A Little Content Curation!
No matter whether your goal is to rank well in the organic search results, stay fresh in the
minds of your potential referral sources and clients or both, every attorney must continue to
put out original, relevant content on the internet to be noticed. One of the best tools for
doing this is blogging. The problem is that lawyers are not full time marketers and we have
to also engage in the practice of law and, hopefully, have some time for family and a personal
life. So, what can you do when you don't have an extra 2-3 hours in a week to research, draft,
edit and publish a full length (700 to 1000 word) blog post?
One solution I have found is what is termed "content curation" or what I call "blogging-lite".
If you can find relevant news articles, blogs from other attorneys, information from resource
websites and other information that is both interesting and relevant to your practice area,
you can provide some, brief commentary or insight about the piece, share it on social media
and it has almost as much effectiveness as a full blog post. This can be done on various plat-
forms including your main practice blog, through content curation tools like
http:/ / or setting up micro-blogs that are separate from your main practice blog
on a platform like: http:/ or http:/ that can focus
on a "niche" within your practice area. An example would be to find a recent news article
about car safety or accident claims, provide insight from your own perspective as a personal
injury lawyer, and publicize the piece through all your social media outlets like your firm
Facebook page, your Google plus profile or business page, your Linkedin personal or busi-
ness profile, etc. Here are some recent illustrations of what I have done:
http:/ california-car-accident-and-injury-attorney
These types of posts take about 10 to 15 minutes as opposed to several hours for a full blog
post. Because you are sharing the content of others and just commenting upon it, you can still
get your message out even in a time crunch week!
October 2013
Page 19
C.O.L.T. jury secrets revealed
Information That Is Kept From Juries in
Persona/Injury Trials: Secrets Revealed
By Matt Dolman
Many people assume that juries participating in a
personal injury or wrongful death case have all the .
information relevant to deciding the case on the mer1ts.
That is not entirely true ...
In fact, some information is deliberately
kept away from the juries by the Courts.
In Florida, there is a long standing rule
that forbids a Plaintiff from telling a
jury about the defendant's insurance
coverage in personal injury trials. Carl's
Markets, Inc. v. Meyer, 69 So.2d
789,793 (Fla.1953). Consequently, big
insurance companies hide behind laws
such as FL Statute 627.4136, the Non-
Joinder of Insurers Statute. Non-Join-
der is defined as "omitting a party or
cause of action that should have been
included in the lawsuit." In a nutshell,
the Non-Joinder Statute shields the in-
surance company's name and involve-
ment during trial. In other words mem-
bers of the jury are kept from any
knowledge of the at fault
driver's insurance coverage
Plaintiffs can only be named
in a personal capacity when
suit is filed. For example, if
the Defendant has USAA
Insurance, USAA cannot be
named as a party even though
they are defending the claim.
They can't be named as a
October 2013
party even though they are paying for
the attorney's fees, medical experts, and
Before trial, this rule gives insurance
companies another reason to fight in-
jured people and rely on sympathy for
their insured to ask for artificially lower
settlement s and force people to trial
when they shouldn't be doing so. Even
before a trial takes place, these insur-
ance companies are determining how
much money is being offered and not
the person who caused the accident.
At trial, the insurance companies use
this law and portray the Defendant very
sympathetically. It is believed that
juries will be hesitant to award damages
greater than that which the Defendant
can afford. ( contd)
C.O.L.T. jury secrets revealed
Information That Is Kept From Juries in
Persona/Injury Trials: Secrets Revealed contd.
By Matt Dolman
Verdicts are low so as not to bankrupt
the Defendant, while the jurors are un-
aware that it is actually the insurance
companies, and not the personal Defen-
dant, who is paying the injured party.
Because of this law, insurance compa-
nies can hire the same doctor repeat-
edly to conduct a compulsory medical
examination of Plaintiff. These doctors
are consistently used by the insurance
companies, and almost always render
opinions that favor defendants in litiga-
tion. Often an insurance company can
hire a doctor and pay them over a thou-
sand dollars for an examination that
takes less than 30 minutes to perform.
Some medical providers are hired hun-
dreds of times within the same year by
these insurance companies. Some earn
more than half a million dollars a year
performing litigation exams for Defen-
dant insurance companies. Some doc-
tors earn millions annually for their
opinions in personal injury claims.
A prime example of an insurance
company's 'hired hand' would be Dr.
Michael J. Katz, a New York orthopedist
who conducted over a thousand medical
legal exams every year for insurance
companies. He was frequently hired to
defend personal injury cases. It was re-
vealed through a secret video that al-
though Dr. Katz testified that his inde-
pendent medical examinations took
10-20 minutes on a particular Plaintiff,
the exam actually took less than 2 min-
utes. There was no way that Dr. Katz
could've made all the findings he testi-
fied about within that short period of
time. This doctor made over a million
dollars a year just from his medical
legal practice. Unfortunately, circum-
stances like what happened to Dr. Katz
probably happen regularly in the con-
text of medical expert/insurance com-
pany relations.
So if you are ever called to jury duty on
a personal injury or wrongful death
case, remember these two things:
1) the doctor performing the examina-
tion on the injured party or testifying
as to their injuries is likely paid by the
insurance company to regularly give
testimony in hundreds of cases and
2) the named defendant might be the
driver, but they are not the person
overseeing the lawsuit, paying the at-
torneys, paying the doctors, or even
paying the injured party. That would
be the Insurance Company.
Matthew Dolman is a well-recognized personal injury trial lawyer
based in the Tampa-St. Petersburg, FL area. He is one of the original
founding members of the Circle of Legal Trust. For more information
on him or his practice, The Dolman Law Group, visit his website here:
October 2013
Page 21
C.O.L.T. advertisement
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with a severe drop in rankings.
And that means less traffic .... and less business.
Even worse, if your site has accumulated a lot of incoming links over the years, you may be in
danger of a Penguin penalty and not even know it. And if you have been intentionally building
links, no matter how careful you were, you might be in even worse danger.
Until now all you could do is watch your rankings and traffic and hope Penguin overlooked you.
Until Penguin Analysis
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getting hit by Google Penguin.
But there's more: you can receive an optional report that will provide you with actionable steps
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October 2013
C.O.L.T. attorney marketing
Effective Attorney Marketing in the
Digital World for 2014
By Gerrid Smith
and Beyond!
You d?n't need me to tell you that marketing isn't
what 1t used to be. Just a few decades ago, capital
was all you needed to get your name out there.
Drop a stack of cash into a national
television ad campaign, and everyone
would know your name in a few weeks.
Run an ad through a few major maga-
zines, and your target audience would
think of you when they had need for
your services. The strategy was simple.
Pick one of about five advertising av-
enues, and then beat it to death with
wads of cash.
In today's world, there are no more
marketing guarantees. The sheer quan-
tity and vast diversity of media con-
sumed by the public makes effective
marketing more like performing a deli-
cate surgery than bashing in a pinata.
Throwing money at your marketing
problems won't fix anything. The digital
age requires a much craftier approach,
and if you want to be effective, it starts
with financial efficiency.
Make Every Dollar Pay
Every dollar you put into your market-
ing campaign is an investment. Every
dollar needs to be tracked, scrutinized,
and optimized so that you are making
the smartest decisions possible with
your limited capital. I spoke with a law
firm the other day, one of the largest of
its kind in the state where they practice.
They have hundreds of city pages, well-
optimized practice area pages, and a
wide variety of niche websites. I asked
the managing partner, "what is your
conversion rate"? and he answered
"honestly, Gerrid, I have no idea". I'm
not talking about some solo law firm
here; I'm talking about the largest firm
of its kind in the state - over 13 attor-
neys working across the entire state.
Five years ago, this was an acceptable
answer - but not anymore. With tools
like Google Analytics, Captorra, !fEy-
Phone call tracking, etc. we should con-
stantly be tracking and acquiring a
better understanding of our marketing
campaigns, their overall effectiveness,
and the specific ROI's they are produc-
ing. We have statistics available on a
second-by-second basis, (contd)
C.O.L.T. attorney marketing
Effective Attorney Marketing in the
Digital World for 2014 and Beyond!
yet we're not maximizing, or in some
cases even utilizing, these tools to their
fullest potential.
Establishing trust with resource
centers and niche websites.
No attorney has grasped this concept
better than Jonathan Rosenfeld of When
Jonathan develops a website, his goal is
to create the most authoritative website
in that niche. When Jonathan wants to
target a niche on his website, such as
"car accidents", he doesn't create a car
accident page; he creates a car accident
resource center, with 10-15 pages on the
topic, in order to help establish himself
as a car accident expert in the eyes of
users (improving his conversions) and
Google (improving his traffic)!
Think about it this way: if your child
was injured during the birthing process,
would you hire a law firm that had a
single page on his/her website about
birth injuries, or would you hire the
firm with an entire collection of birth
injury articles and resources, designed
to help you get through an incredibly
difficult process?
October 2013
Maximizing every dollar spent
with conversion optimization
Increasing your conversion rate in-
creases the effectiveness of all market-
ing channels (social media, PPC,
SEO ... etc). Place a dollar value on every
visitor that comes to your website.
These aren't bots reading your in forma-
tion, these are prospects that need your
services! Why aren't you converting
more visitors into clients? What can you
do to better explain the services you
provide and make your prospective
client feel that your firm is the right
firm for the job?
Competition is increasing. Your com-
petitors are getting smarter. Stop
spending all your time getting people to
your website, and start focusing on
what you can do to get more people
contacting your firm once they arrive.
The time, energy, and resources you
spend on the conversion process will
maximize the ROI of every dollar you've
already spent on getting people to your
sit e.
I've also noticed that conversion opti-
mization needs to happen within the
law firm as well. Most law firms only
track leads that become intakes. What
about the person who called your firm
to ask about your experience with birth
injury cases, but due to less-than-
knowledgeable intake personnel, hung
up and called a competing firm. (contd)
Page 24
C.O.L.T. attorney marketing
Effective Attorney Marketing in the contd.
Digital World for 2014 and Beyond!
We have known for awhile that mobile
Do you track your inte:nal responsive is important, yet so few at-
Do you put equal care Into arranging torney websites are truly responsive.
every step of the conversion process? When a customer pulls up your site on
You simply cannot afford any weak his or her smartphone, it's not going to
links. matter that your website cost you
You can spend $50 per click to get
someone onto your site and even main-
tain thousands of dollars in well-written
copy across your site's pages, but if it
takes you an entire 2 hours to follow up
on a site-generated lead, recent studies
say you've already lost that expensive
lead! Look at your conversion rate from
every angle and seek to maximize the
effectiveness of your website, and sub-
sequently, your law firm. Again, you
simply cannot afford weak links in the
conversion process.
Don't forget mobile!
Many of your prospective clients will
never again type "Los Angeles personal
injury lawyer" into Google on their
desktop computer. Nowadays, that
search will occur while they are sitting
on their sofa browsing their iPad or
iPhone. They might skip Google alto-
gether and simply say, "Siri, a
personal injury lawyer that
in birth injuries". Thanks to Apple s his-
tory as a market leader, this feature
could become a complete game-changer
for us. Regardless, long-tail searches
are the future, as Google's latest update
with Hummingbird demonstrated!
October 2013
$so,ooo eight years ago. Poor usability
on mobile devices will kill your chances
of converting mobile traffic. Five years
ago, ignoring mobile traffic might not .
have hurt your bottom line. But today IS
another story. In most law niches,
12-20% of Web traffic is mobile.
12-20%! We can't afford to wait any
longer! A non-responsive website is,
simply put, an extremely poor reason to
miss out on even 10% of web-generated
Develop a better sales process
on your website
SalesForce, the billion-dollar, publicly
traded "anti-software" CRM company,
perfected the sales process through the
use of sales specialists. When you call
the company, you don't speak to a mini-
mum wage call-center t ech, you speak
to Joe, an intentionally-placed special-
ist tasked with delivering a compelling
overview of the company's services.
Joe's job is simply to better understand
your needs and match those needs with
the appropriate service. Once those
needs have been uncovered - once Joe
understands exactly why you are call-
ing, not simply what you are calling
about -you are then transferred to
Susan, who specializes in solving
Page 25
C.O.L.T. attorney marketing
Effective Attorney Marketing in the contd.
Digital World for 2014 and Beyond!
. 3) Treat the sub pages of your web-
the specific problem you're De- site as qualifying pages, both for Y?U
pending on the level of service you re- and the consumer. The consumer IS
quire, a VP might even jump in on the trying to figure out if you can handle
call once you're ready to close the deal. a certain practice area. They
Now, think about how we setup our
websites for our visitors. Maybe some-
one lands on our homepage. Maybe
they land on a practice area page or a
city page. Is it possible for us to effec-
tively detail our services on every page
of the website? Of course not. That's
like asking Joe to close in the above ex-
ample. Joe knows the product, it's
Susan job to fix your problem; Its the
VP's responsibility to close the sale. So
how can we harness this proven strat-
egy for the purpose of internet market-
1) Understand that choosing a .
lawyer is a big decision for your cli-
ents. Consumers are smarter now
than ever before. They are used to
researching everything before
buying. The days of customers call-
ing because they remembered your
name from the TV jingle are long
2) Don't give potential clients the
hard close on every page of your
website. Sure, include information
about your firm and make your con-
tact details readily available, but also
understand that the average con-
sumer will want more info from you
than what can be provided on a
single web page.
October 2013
searched Google for "city brain
injury lawyer" and found your web-
site. The goal is that they will read
through your brain injury page and
arrive at the conclusion that you do
indeed know a thing or two about
brain injuries.
4) For the consumer that wants
more information on "the firm" -
give it to them! End each page with
your contact information and "f?r
more information, read the 7 things
that make our law firm different".
This is where you send them to a
"closing page." The closing page is
Susan; it's the VP making your com-
plete sales pitch. If the customer has
clicked-through to this page, he or
she is asking for the full argument.
Communicate, in a personable, con-
versational tone, exactly what makes
your firm qualified, unique most
importantly, the very best t?
meet your customer's need. Wnte It
like you would write a letter to a
friend. Be genuine and sincere.
Maybe even sign your name at the
end of it. This is the page where you
want the reader to understand who
you are, resonate with the "why" of
your firm (not just the what), and
make the phone call.
Page 26
C.O.L.T. attorney marketing
Effective Attorney Marketing in the
Digital World for 2014 and Beyond!
Build your network and help others
The last thing I want to stress is that you are NOT alone. There are literally hun-
dreds of attorneys and legal marketers active on Google+, and they are all helping
each other succeed in today's digital marketplace through the Circle of Legal Trust
(COLT) . The age of digital marketing may come with an abundance of new chal-
lenges, but it also has its advantages. You can now connect and learn from attor-
neys across the U.S. to see what's working and what isn't. You can exchange guest
posts, reciprocate shares and +l's, and so much more. If you're ready to take things
to the next level, join the group, get active, and let's build a smarter law practice ...
October 2013
Gerrid Smith has been a law firm digital marketing
strategist for over six years. He runs SmithSEO
and just started a new blog covering various as-
pects of law marketing, Go Black Fin. Questions?
You can reach him by email or on Google+.
Ronnie Bincer, known as The Hangout Helper, has
created a great membership site for those that want
to learn from the best about hangouts. Signup to
keep up: /HangoutMastery
Ronnie Bincer
**Hangouts are Magical, Let me show you why!**
Ronnie on + RonnieBincer
Add me to your Circles on Google Plus
Stay up-to-date & Become a Hangout Master
C.O.L.T. negotiation & timing
In the Art of Negotiation at Mediation,
is Timing Everything?
By Michael Bhline
Can your case be settled or is there an impasse?
In my practice, which is primarily a
tort law practice, one of the most as
well as harrowing experiences, can be a
or judge mediation. Attorneys
when a case does not settle in mediation. Th1s 1s
is especially true when the parties spent signifi-
cant money hiring a former judge, or profes-
sional mediator, since it drains resources that
could be put to better use, like hotel fees for that
far way jury trial in the case at bar.
But why didn't the case settle? Was there one
outstanding reason that the parties could not
come to an agreement? In many cases it can be
the old adage that "timing is everything," _which
means that whether a case settles or not m me-
diation can be dependent on the timing of the
negotiations. It is similar to dating. do the
dance, and at some point, the stars can line up.
Much of the literature about mediation focuses
on the negotiation aspect, rather than having in-
formation on the timing of the negotiations be-
tween the parties that can be key in it being a
waste of time or having a successful outcome.
Going into mediation with parties that believe
there is little to lose and it will not be a real fi-
nancial burden taking the case to court if they
lose. Then both parties will have little incentive
to seriously negotiate a settlement. Often this is
the case that the leo-al professional who is expe-
o .
rienced in mediation should realize that lt may
be of little benefit to attempt negotiating a
settlement, since it is not the right time.
John Hopkins University professor I. William
Zartman said that the parties involved in nego-
tiations will settle basically if they are in a "costly
dilemma." (1.) Taking this advice, for attorneys
in any practice area to be successful in settling
through mediation, they will need to be able to
October 2013
read the situation, and create a a situation that
focuses on the strengths of their own case, and
the weaknesses of the other side's claim. Once
both sides basically come to detente that nei-
ther case is perfect, we can at least get the par-
ties to focus on "being mentally ready" to re-
solve the claim, and come out of their trenches
under a flag of parlay.
Of course not all of these cases are the
-) type litigation as described above,
but when money is involved, they often are. So
I am writing this piece, under the assumption
that both sides are ego driven, sharp, and com-
petitive, no matter how civil they appear to be.
After all, to be a high level litigator, in big
dollar cases, both sides have already been
through many hard fought campaigns, and are
not new to discovery battles, motions to
compel, and red faced arguments and
objections that often accompany many deposl-
tions and oral arguments. This can often have
both sides in a Mexican standoff. Defense
counsel, insurance adjustor, and plaintiffs at-
torney, all wanting different things from the
other, and refusing to budge.
Page 28
C.O.L.T. negotiation & timing
In the Art of Negotiation at Mediation,
is Timing Everything? (contd.J
Zartman has c_oined a Mutually Hurting
Stalemate, wh1ch he says 1s the first thing to
evaluate. This is one of the factors in determin-
ing when or if the parties are ready to reach a
resolution. What this phrase relates to is when
the parties involved are not able to come to a
mutual decision and instead it is to overwhelm-
ing for both sides, even if there is not the same
amount of anguish. There is the legal aspect that
should be considered, the plaintiff and defen-
dant, as to whether litigation will cause them to
pain. Conducting a cost-benefit analysis
will help to determine the emotional, financial
and the beneficial cost there may be in continu-
ing litigation as compared to a medicated settle-
One of the times that a mediation can be diffi-
cult to have a successful resolution is when the
plaintiff feels they have a strong case against a
defendant. They have facts and documentation
that are not able to be disputed, like in a car acci-
dent case, where the laws are very clear and
were multiple witnesses and video tape
ev1dence. It may be possible that the defendant
has little knowledge about traffic violations,
October 2013
even though they know there are
traffic laws. The defendant is not sure
how he violated these laws and has never had
any legal.dealings, and his or her hourly billing
attorney 1s not being realistic about the over-
whelming evidence against the client with the
client, or the adjustor.
The client may not even realize he or she has
any personal asset exposure, even though it
could be great. If that is the case, the insurance
nor the client feels the expense to
case would not be costly. Having
belief that the cost of litigation and aver-
dict cost that is low, will generally make this
case one that mediation is not going to be suc-
until both parties realize that they will
mcur s1zable economical and emotional cost
during litigation.
This can change if the plaintiff understands
that there may be sizeable costs associated with
litigation that could result in a deadlock. The
must also recognize that this type of
may cause damage to their business,
the1r personal life and have a costly verdict.
!hen would be more triumphant
mvolvmg the1r clients in mediation to resolve
the case and reach a .... (contd.)
Page 29
C.O.L.T. negotiation & timing
In the Art of Negotiation at Mediation,
is Timing Everything? (contd.J
negotiated settlement.
If the plaintiff realizes the expense of litigating
this type of case, but the defendant does not rec-
ognize how costly it could be, then mediation
may not have the desired effect for either party.
The attorney for the defendant should inquire if
they understand the mediation process and how
it can be an advantage in some cases, rather than
going through litigation. There are some defen-
dants that do not completely understand the
entire situation and in these cases the defendant
may feel the plaintiff does not have a solid case
and \.villlower the amount they would settle the
claim. Instead it can be a learning experience for
both parties, especially the defendant, but me-
diation can help to resolve the case when both
parties know what they can expect from the pro-
cess as compared to going through the litigation
The plaintiffs attorney can ask the defense what
they expect prior to going into mediation to
ensure that both parties have the same basic
thoughts about this process. This can be done
without inquiring what they are valuing the
claim and the legal issues. Another thing the
lawyer can do is to question the factual and legal
issues, such as the plaintiffs attorney question-
ing the defense how strong they believe the de-
fense case may be. The one thing that the plain-
tiff has on their side and their lawyer will know
this, is the fact that out of 500 cases, they can
generally count the number of verdicts that are
in favor of the defendant.
The defense lawyer may expect that mediation
may lighten the demand and in this respect the
plaintiffs attorney may question just why the
defense wants to use mediation as a way to re-
solve the case. If issues are raised about whether
attorneys fees or other question may signal that
the defense is not ready to attend mediation. In
the event that either side questions the process
or goes into it with the idea if they aren't pleased
October 2013
they can continue with litigation and gain the
verdict they want, the parties are not usually
ready for mediation to resolve the case.
In cases where mediation is the best answer to
resolve the case for the plaintiffs emotional
and financial well being, or for the defense, the
lawyers may be able to change the other sides
opinion about heading to court. If one side
feels they have strong facts, then it is essential
to try to discover facts to counter the party's
facts. By changing the outlook by either party
by the other party's attorney can help the me-
diation process to resolve the case. But only
when the parties are convinced this is a process
that will be in their best interests, ratl1er than
going to court and litigating.
How Power
Affects Mediation
One of the things that attorneys for the plain-
tiff and the defendant will need to determine,
before heading into mediation, is what power
the other side believes they have to litigate the
case. If the mediator successfully conveys this
information to the other party, then the timing
is ripe to settle. When one or even both sides
feel they have more power than the other side,
and feel they can litigate vvithout incurring a
large expense. Then this party or both parties
feeling this way are not ready to go to media-
tion to negotiate a settlement Even in cases
where the plaintiff or defendant has a stronger
litigation case, it still may be possible for me-
diation to take place to resolve it and obtain a
settlement, if each side is able to evaluate the
weakness and strength of their case. This point
is addressed by the University of Colorado
Conflict Research Consortium (
.), stating when
the parties know which side is more powerful.
They still can generally negotiate a settlement
that matches the power structure at a lower
cost. (contd)
Page 30
C.O.L.T. negotiation & timing
In the Art of Negotiation at Mediation,
is Timing Everything? (contd.J
If for instance the case involves a slip and fall ac-
cident, where there was minimal harm caused to
the plaintiff when they were in a retail store.
~ a t the attorney(s) would know, is that there
are surveillance cameras that would show when
the store clerk had cleaned the floor. This could
give power to the defendant, or the plaintiff, de-
pending on what the tapes demonstrate, which
may or may not be enough for the defendant to
win going to trial. Even if the plaintiff did win,
the verdict would be low perhaps and end up
costing the defense less than the demands of the
other side. What the plaintiff and defendant may
also realize in this type of case, is that the cost to
litigate at trial would be more costly than settling
through a mediated settlement for the defense.
In negotiating the defense could be at a disad-
vantage as far as the cost of litigation that the
plaintiff can effectively use as a negotiating
point. While each side has power in this type of
situation, if they are ready to go through the me-
diation process, then it is possible to arrive at an
equitable settlement. In the event the plaintiff or
defendant does not realize the power they have,
it will be up to their lawyer to use this leverage
on their behalf.
Mediation the Alternative to
Mediation is an alternative to mediation that can
work effectively when both parties are ready to
negotiate. This is a less costly way to resolve a
case, than going through the litigation process at
trial. It is important for both parties to feel this
can be a way to resolve the case, but if one side
makes it clear they will not make any conces-
sions, it is doubtful mediation will be successful.
When the plaintiff and defendant go into media-
tion with a level of trust that the other party will
have good faith in negotiating and that good
communication is a part of the mediation. The
best way for attorneys to approach a good bal-
ance is by finding things in common with the
October 2013
other side to create an element of trust. By
building a rapport it can make each side feel
more comfortable during the mediation negotia-
tions and then when the bottom figure is
reached this can be believed, rather than con-
tinuing with the negotiations.
Elemental Factors
Knowing the factors that can show when a case
is ready to enter the mediation phase is impor-
tant, but it does not mean that it will just
happen. It will be necessary for one or both
sides to ensure the elements are in place to get
into mediation. Professor Zartman addressed
this in saying parties are not always ready and it
is important to have evidence the case is ready
for this action. Letting the other side know that
there is an interest in going into mediation to
reach a resolution is a step that can be taken.
It is essential for success in negotiations for the
parties to be ready to avoid a dispute that is at an
impasse. There are ways the legal professional
can help, by questioning if the parties have an
interest in negotiating. If one of the parties is
hesitant they can ask why to know if there is a
way to change this opinion. In some cases the
question may arise, if all of the parties need to be
involved in the negotiation. Does the other side
understand what litigation may entail and what
might make a negotiated settlement enticing to
the other party?
\Vhat might the financial and emotional costs be
by not settling using mediation. Is there enough
knowledge about your case and the other side's
case to go into mediation to negotiate an equi-
table settlement? These are facts that should be
known in order to be successful, if entering me-
diation to negotiate and resolve the case with
enough trust on both sides for it to avoid issues
that may cause mediation to be a failure.
Page 31
C.O.L.T. negotiation & timing
In the Art of Negotiation at Mediation,
is Timing Everything? (contd.J
I hope you liked this piece, and if you want to learn more about mediations, or tort law, feel free
to contact me at:
Ehline Law Firm PC
198 N Arrowhead Ave. #20
San Bernardino, CA
1. Changes in the Diplomatic [-<'unction and Theil: Impact on Intcmational Negotiations PDf-'
http:/ /
2. Adelson attomey out after judge cites 'Rambo litigation tactics' http:/ /
3. University of Colorado Conflict and Research Consortium
http:/ /
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