Industry Insight

Contentious divorces often involve years-long battles over child custody, asset division, and spousal support. False claims of infidelity, domestic violence, child abuse, or financial misconduct are unfortunately common in high-conflict family law cases. One party may attempt to control the narrative by defaming their former spouse on social media. They may create fake profiles, connect with their ex’s contacts, and post lies designed to inflict maximum reputational harm. For these situations, family law attorneys should consult defamation counsel to evaluate any potential claims, remove unwanted online content, unmask anonymous online actors, and mount an aggressive defense. Benefits of Working with a Defamation Attorney on Family Law Matters Determining the necessity of a defamation lawsuit Are the false statements made by an ex-spouse or in-laws actionable? Could a properly worded demand letter stop the defamation and harassment and return your client’s leverage? Defamation counsel can roadmap a potential lawsuit—separate from the family matter—including the likelihood of success and claim valuation. Family law clients must consider that a new defamation lawsuit may increase hostilities between the parties—is it worth it? Would a defamation lawsuit serve the client’s overarching family law matter or make matters more acrimonious? Preventing client liability Amidst emotional turmoil, family law clients may be tempted to retaliate by making their own accusations online. Defamation counsel can educate clients on defamation laws and help them avoid liability while still defending themselves. Enforcing non-disparagement agreements Non-disparagement agreements may be essential components of a resolution plan for family law matters. Defamation counsel can provide proper language for those agreements to ensure they are enforceable, clear, and can be used to navigate alleged breaches of those agreements. Crafting effective demand letters Attorneys without defamation legal experience can draft a demand letter involving complained-of speech—but it’s unlikely to be an effective one. A mediocre demand letter does nothing more than inform your adversary that you hired counsel—a waste. A defamation attorney can help you to create a proper demand letter that explains why the offending speech is defamatory (i.e., specifically, why is it unlawful rather than merely disparaging). Is a defense or privilege implicated by their offending speech? Address it in the demand letter explaining why it is inapplicable. Pre-emptively defanging their defense will leave them with nothing other than the fear of an adverse verdict. Your defamation attorney will follow up the letter with a call to discuss what you truly want and to explore paths there. How Family Law Attorneys Can Work with a Defamation Lawyer Consult early Address defamation concerns at the outset of a case to prevent long-term damage. Defamation claims must usually be brought within one-to-three years from publication (depending on the state). Monitor online activity Monitor social media and public statements that could harm a client’s reputation. Take immediate legal action Issue demand letters, request content removals, and file lawsuits when necessary. Include reputation protection in settlements Non-disparagement agreements requiring prompt arbitration for breaches with attorney fees flowing to the prevailing party. These should be non-negotiable terms. Defamation attorneys should not charge for those consultations or case work-ups (we don’t). False accusations and online defamation can derail a family law case, affecting everything from custody arrangements to personal and professional reputations. By consulting with a defamation attorney, family law attorneys can provide a more comprehensive legal strategy for their clients.

Kenneth Economy v. Sutter East Bay Hospitals, et al. was a California wrongful termination case in which the trial court found a hospital liable for restricting a physician’s privileges without providing notice and a hearing. The hospital was ordered to pay damages for lost income, future lost income and tax neutralization. On appeal, the hospital only challenged the trial court’s damage award for tax neutralization. The Court of Appeal opinion filed on February 4, 2019 confirmed the lower court did not err in awarding an additional amount of damages intended to offset the tax consequences of a lump- sum award for lost earnings. The opinion further indicated there were no reported California decisions regarding the concept of tax neutralization and that federal appellate courts had endorsed it. The Court held that a tax neutralization award was consistent with Civil Code section 3333 which provides for damages to include “the amount which will compensate for all the detriment proximately caused by the wrongful conduct.” The purpose of a tax neutralization calculation as stated in the appeal was “to offset the increased tax burden on plaintiff resulting from a lump sum award of damages as compared to what plaintiff would have owed in taxes if the earnings had been received sequentially each year.” This tax neutralization award will neutralize the adverse tax consequences a plaintiff will face from having to pay taxes on a lump sum award in a single year instead of paying taxes at a lower rate over several years. Additionally, it will account for any changes in tax burden resulting from changes in income in both the past and future periods. I will illustrate this point with a simple example. In this example, Mr. Brown was terminated from his job as a supervisor at Common Industries and filed a wrongful termination lawsuit against his former employer. At the time of his termination, Mr. Brown received $85,000 per year in earnings and an additional $15,000 per year in benefits, for a total of $100,000 annually. At the time of his termination, he had a remaining statistical work-life expectancy of 20 years. If he had worked for the company for an additional 20 years, he would have received a total of $2,000,000 in earnings and benefits ($100,000 per year times 20 years). Mr. Brown prevailed in his litigation against Common Industries and received a total judgment of $2,000,000. The award is taxable; therefore, Mr. Brown will pay taxes on $2,000,000 in the year the award is paid. Total federal and state taxes are estimated to be 50%, or $1,000,000. If Mr. Brown had not been terminated from Common Industries and earned $2,000,000 in earnings and benefits over 20 years, the total amount he would have paid in taxes would have been less. His total earnings were $85,000 per year and the remaining $15,000 was the value of the benefits he received. He would have only paid taxes on the $85,000 per year. Mr. Brown would have been in a lower tax bracket earning $85,000 per year than he was in the year he received $2,000,000. If total federal and state taxes are estimated to be 30%, Mr. Brown will pay $25,500 each year for 20 years for a total of $510,000. In this simplified example, Mr. Brown should receive not only his lost earnings and benefits of $2,000,000 but also an additional $490,000 to account for the additional taxes he will now have to pay. However, this conclusion does not take into consideration several other factors which affect a tax neutralization calculation. One factor that needs to be considered is the time value of money. In the example, Mr. Brown will have to pay $1,000,000 in taxes in the present day compared to $510,000 in taxes over 20 years. Due to the time value of money, the $510,000 Mr. Brown would have paid over 20 years should be discounted to present value. This is the same type of calculation which would have been performed when analyzing his loss of earnings and benefits and any offset earnings and benefits. All future amounts are discounted to present day dollars. This present value adjustment will decrease the value of the taxes paid over 20 years—thereby increasing the amount necessary to compensate him for his additional tax burden. For example, $25,500 per year for 20 years discounted at a 4.0% net discount rate is $346,554, instead of $510,000 prior to discounting. Once the time value of money is taken into consideration, the difference between taxes Mr. Brown would have paid had he not been terminated and the lump sum taxes he will now pay is $653,446, a 28% increase in the original tax neutralization amount of $510,000. A second consideration is what additional amounts comprise Mr. Brown’s taxable earnings in any given year. The previous example assumes the only data necessary to determine Mr. Brown’s annual taxable income is his earnings from employment. However, in most instances this is not accurate. There are multiple other types of income which need to be considered when determining one’s total taxable income. Examples are spouse’s income, dividends, interest, Schedule C income, capital gains and losses and rental income. These amounts can be considerable and drastically alter an individual’s tax burden. Additionally, one should consider the plaintiff’s tax filing status, the type of deductions the plaintiff would have claimed and any changes in the status of dependents. A review of historical tax returns is helpful in determining how each of these items should be accounted for in a tax neutralization calculation. In a wrongful termination matter, post-termination or offset earnings are subtracted from the but-for earnings to determine a plaintiff’s economic loss prior to consideration of any tax neutralization amount. These post-termination earnings are also a factor when analyzing a change to a plaintiff’s tax burden. If the plaintiff is earning more or less than they had been prior to their termination, this will affect their tax burden. Taxes on this stream of income are considered along with taxes on the lump sum award when calculating the total taxes that will be paid by the plaintiff in his or her current situation. The same additional considerations are relevant for this income stream when calculating the total taxes that will now be owed: income to be included in taxable income, deductions, filing status and status of dependents. Once the initial tax neutralization calculation has been performed, this is not the end of the analysis. I will illustrate this with a continuation of the previous example in which Mr. Brown was awarded $2,000,000. Assuming the economic expert calculated a tax neutralization amount of $650,000, the result is total damages of $2,650,000. Therefore, the lump sum award is no longer $2,000,000 but instead is $2,650,000. The tax neutralization calculation now needs to be based on this updated award amount, which results in an increase to the tax neutralization amount. Each increase to the total lump sum amount awarded needs to be taken into consideration in the tax neutralization calculation. In conclusion, a tax neutralization calculation can be a considerable component of damages in a wrongful termination matter. As the total amount of damages increases, so too does the tax neutralization amount. Depending on the specific facts of a case, this additional calculation can increase a total award by 50% or more. As illustrated with the Brown v. Common Industries example, a multitude of factors need to be considered when performing this type of calculation. It is a detailed and complex calculation with multiple inputs. Considering the complexities and possible economic magnitude of this type of calculation, one will want to ensure they engage an economic expert who is familiar with this type of calculation and the nuances involved.

We have been writing about the personal traits and professional skills litigators need to be successful in pretrial discovery practice for a long time. Whether it’s offering tips on how to master remote depositions, pointing out the need to thoroughly understand deposition-related procedural rules, reporting on the professional imperative to develop and maintain technology competence, or tracking evolving professional obligations to conduct depositions ethically and securely, we’ve endeavored to offer helpful information for litigators working in a rapidly changing, increasingly tech-driven environment. Seasoned litigators, presenting their views during a “Top Ten Tips for New Litigators” discussion sponsored by the ABA Litigation Section’s Pretrial Practice and Discovery Committee, said that ethical conduct, preparation, technology competence, and professional development were among the leading keys to success for new trial attorneys. So, we were heartened when several of these themes were mentioned by litigation experts during a recent American Bar Association presentation. Seasoned litigators, presenting their views during a “Top Ten Tips for New Litigators” discussion sponsored by the ABA Litigation Section’s Pretrial Practice and Discovery Committee, said that ethical conduct, preparation, technology competence, and professional development were among the leading keys to success for new trial attorneys. Their “Top 10” tips were: Know all procedural and evidentiary rules applicable to the case Allow no surprises Be prepared Be the trusted person in the room Be a good teammate Maintain your reputation Take responsibility for professional development Be receptive to criticism Be willing to ask for help Practice self-care Several of the tips mentioned above have a direct relationship to pretrial practice in general and deposition practice in particular. Know Procedural and Evidentiary Rules A thorough knowledge of the rules governing pretrial matters—whether it’s a deposition or summary judgment motion—is critical. In deposition practice, litigators must be familiar with the rules on making and preserving objections to deposition questions. Making unwarranted objections, or directing witnesses not to answer appropriately asked questions, can be expensive. And some attorneys mistakenly believe that “remote depositions” are the same as “video depositions,” an error that the American Bar Association recently pointed out in its 2023 Best Practices for Remote Depositions guidance. Joseph Schaeffer, a Pittsburgh-based commercial and environmental and energy litigator in Babst, Calland, Clements and Zomnir P.C.’s litigation practice group, remarked that he’s frequently heard partners complain that new associates often fail to learn applicable court rules. “There’s no easier way to frustrate a partner and even worse to frustrate a court than not having read the rules before taking some type of action,” Schaeffer said. Applicable rules can come from several sources: jurisdiction-wide rules, local rules, and court orders. Familiarity with case-specific orders is also vital. Scheduling orders, case management orders, and stipulated e-discovery protocols need to be consulted and understood. Mark Romance, a commercial and business litigator and partner in Day Pitney L.L.P.’s Miami office, pointed out that making assumptions about which rules apply can be dangerous business. For example, he said, the court rules for the Southern District of Florida are different than those applicable just north in the Middle District of Florida. Court rules frequently change too, he added. “You really have to take the extra time to read the rules, read the rules, and read the rules again to make sure that you’re familiar with them in the jurisdictions in which you are practicing,” Romance said. Be Prepared In 2025, judges have no patience for litigators who have not mastered the technology used in depositions and court hearings. They didn’t have all that much patience for technology foot-draggers in 2022 either. “In terms of technology, I would say being prepared includes, if you’re going to be on a Zoom, for example, and you’re going to share documents, make sure your documents are ready,” Romance said. “Anticipate what you might want to use so that you’ve got it at your fingertips, and you can pull it right up whether it’s at a hearing or a meeting with clients or your team, and also knowing how the technology works.” Romance added that new litigators should make an effort to find out exactly which types of technologies are in use in the courtrooms where they will be practicing. Maintain a Good Reputation A reputation built by painstaking trial preparation and adherence to the highest standards of the legal profession is an asset that litigators can draw on, for themselves and their clients, throughout their legal careers. In deposition practice, this means unfailing honesty, reasonableness, courtesy, and reliability as far as knowing the law and meeting obligations to clients, the courts, and opposing counsel. Monette Davis, an insurance defense and commercial litigator with Stone Pigman Walther Wittmann L.L.C. in New Orleans, remarked that cultivating a reputation for trustworthiness will advance a new litigator’s legal career. “You want to be the person that the partner or the superior can go to and they know that they’re going to be able to rely on you, and even if it’s a small test, if it’s research, if it’s something you know that may not be the end-all, be-all for the case,” Davis said. Doing a good job on a small matter will build trust and lead to bigger assignments down the road, she said. Schaeffer remarked that being disrespectful to court staff is a sure way to get on a judge’s bad side. Romance added that, for attorneys whose reputation is not quite what they want it to be, it’s not too late to build a better one. Do you have a reputation that you’re the person who’s always late? Do you have a reputation as the person who’s known to be difficult, doesn’t give extensions, or requires three or four follow-up calls or emails before responding? “What is the reputation that you want,” Romance asked. “Take steps affirmatively to establish that reputation. Start one by one, little by little, re-establishing the reputation that you want to have in your community, in your firm, and it just takes one step and then another and another.” Take Responsibility for Professional Development Legal education and other professional development activities are necessary for success in the fast-changing practice of law. This is particularly true in the area of technology competence, a topic that crops up everywhere these days: electronic filing, e-discovery, data security, and remote depositions and virtual court hearings. Several states (Florida, North Carolina, and New York) have all mandated technology education in recent years. New Jersey is considering adding a technology education component to its lawyer regulations as well. Beyond strict legal education requirements, new litigators should learn how to network and add skills beyond those related to trial practice. New litigators are responsible for their own professional development, Davis said. Their law firm won’t necessarily do it for them. She advised new lawyers to “put themselves out there,” so to speak—to meet new people, to grow their network, and be open to new experiences. Pro bono work, joining a firm committee or a bar committee, serving on a non-profit organization’s board of directors all present opportunities to develop professionally. “Putting yourself out there, it can be scary, especially as a new lawyer, but being able to get out and open yourself up can help with your professional development,” she said. Practice Self-Care Wellness is a topic of growing interest within the litigation community even before COVID-19, which added rapid change, uncertainty, and social isolation to the list of challenges lawyers were already coping with. In 2020, for example, the Illinois Supreme Court Attorney Registration & Disciplinary Commission noted 29% of sanctioned attorneys had cited mental impairment or substance abuse as a contributor to their alleged ethical lapses. Davis said that she believes there is a connection between wellness and client service. Taking vacations and paying increased attention to physical fitness and emotional health will translate into delivering a better work product for clients. Romance advised finding time to take vacations longer than just a three-day weekend. The first day of a short weekend break is spent wondering about work left undone at the office and the last day is spent worrying about the week ahead. Ergo, no vacation at all. Schaeffer recommended that new lawyers find a hobby or some other fulfilling outside activity so that their sense of self-worth is not strictly tied to their sense of how their law practice is going. He added that the busiest lawyers he knows also take the most vacation time. It keeps them at the top of their game, Schaeffer said.

CALIFORNIA SUPREME COURT Civil Procedure Madrigal et al. v. Hyundai Motor America (2025) _Cal. 5th_, 2025 WL 943693: The California Supreme Court decided a narrow question regarding the interplay between Code of Civil Procedure section 998 and the recovery of costs as the prevailing party under Code of Civil Procedure sections 1032 and 1033.5. The trial court ruled that section 998 did not apply because the parties settled before the trial was concluded. The Court of Appeal and the California Supreme Court disagreed, ruling that cost shifting under section 998 is not limited to cases resolved by trial or arbitration. The California Supreme Court ruled that when a plaintiff rejects a 998 offer or allows it be deemed withdrawn, and later agrees to settle before trial, section 998 sets the default rule regarding cost shifting if its terms are met, but the parties are free to agree to their own allocation of costs and fees as part of the settlement agreement. (March 20, 2025.) Torts Escamilla v. Vannucci (2025) _Cal. 5th_, 2025 WL 943692: The California Supreme Court reversed the Court of Appeal and the trial court, ruling that an action for malicious prosecution against an attorney, brought by formerly adverse parties and not by the attorney’s clients or the intended beneficiaries of the attorney’s clients, is governed by the two-year statute of limitations in California Code of Civil Procedure section 335.1, not the one-year limitations period in California Code of Civil Procedure section 340.6 for actions against attorneys. (March 20, 2025.) CALIFORNIA COURTS OF APPEAL Arbitration Arzate v. ACE American Insurance Company (2025) _ Cal.App.5th _, 2025 WL 309326: The Court of Appeal reversed the trial court’s order that reversed its earlier order granting defendant’s motion to compel and lifted the stay of litigation after neither of the parties took any action to initiate arbitration. The underlying action was a wage and hour action by employees against defendant employer. The arbitration agreements at issue required any person having employment related legal claims to submit them to arbitration. They also required the party who wanted to start the arbitration procedure to begin the process by filing a demand for arbitration. The trial court concluded that the defendant had the obligation to commence arbitration, which is why it lifted the litigation stay after no one initiated arbitration. The Court of Appeal disagreed and reversed the trial court, concluding that under the arbitration agreements the party wanting to assert a claim governed by the arbitration agreements had the obligation to commence arbitration. In this case that was the plaintiffs. Defendant did not breach the arbitration agreements or waive its right to arbitration by failing to submit the plaintiffs’ claims to arbitration. (C.A. 2nd, filed January 27, 2025, published February 19, 2025.) Employment Lowry v. Port San Luis Harbor Dist. (2025) _ Cal.App.5th _, 2025 WL 615281: The Court of Appeal affirmed the trial court’s order granting defendant’s motion for summary judgment against plaintiff’s single cause of action alleging that defendant violated the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) when it concluded that plaintiff was not eligible for relief under FEHA and denied plaintiff’s request for disability retirement payments after plaintiff suffered a workplace injury rendering him unable to perform his essential functions as a harbor patrol officer even with reasonable accommodations. The Court of Appeal concluded that the denial of disability retirement payments is not an adverse employment action under FEHA. Disability retirement payments do not facilitate a qualified employee’s continued employment, job performance, or opportunity for advancement. They serve as income replacement for employees who can no longer work. An individual who is not a qualified employee cannot bring a disability discrimination claim under FEHA for the denial of disability retirement payments. (C.A. 2nd, February 26, 2025.) Contracts Miles v. Gernstein (2025) _ Cal.App.5th _, 2025 WL 942514: The Court of Appeal affirmed the trial court’s judgment, following a bench trial, concluding that an oral traditional surrogacy agreement that plaintiff (a single lesbian) entered into with defendant (a single gay man) controlled the relationship between plaintiff and the child born following that agreement, and plaintiff was not a parent to the child under that agreement. The Court of Appeal affirmed the trial court’s judgment, concluding that the law does not require that a traditional surrogacy contract be in writing, that Family Code section 7610 did not mandate a finding that plaintiff was the child’s mother, California case law did not prohibit the oral surrogacy agreement, and public policy supported the enforcement of the oral surrogacy agreement. (C.A. 3rd, March 28, 2025.) Insurance Prahl v. Allstate Northbrook Indemnity Co. (2025) _ Cal.App.5th _, 2025 WL 942513: The Court of Appeal affirmed the trial court’s order denying plaintiff’s petition to compel arbitration of his underinsured motorist claim. The accident occurred in 2016. After settling with the two other drivers, plaintiff initiated his underinsured motorist claim with defendant and defendant agreed to arbitrate the claim on May 29, 2018. The matter was set for arbitration in November 2022, but was continued due to the unavailability of plaintiff’s counsel. In late 2023, plaintiff contacted defendant to reschedule the arbitration, and defendant took the position that the arbitration could not go forward because the five-year deadline to complete arbitration set forth in Insurance Code section 11580.2(i) had expired. The trial court properly denied the petition to compel arbitration, properly concluding that arbitration was barred by Insurance Code section 11580.2(i) and Judicial Council emergency rule 10 (Cal. Rules of Court, appen. I, emergency rule 10) did not extend the deadline. (C.A. 3rd, March 28, 2025.)

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

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

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

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

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