Passionate Lawyering with Josh Borger

In this episode, Alay Yajnik and Josh Borger, partner at Berliner Cohen, discuss how his passion and enthusiasm for practicing law have helped him build his practice, develop referral sources, and establish himself as a thought leader.

  • Practicing the law is an honor. You should embrace that honor and love being a lawyer.
  • Discover a niche in the law where there are lots of questions, yet no good answers. Study this area and write articles that clarify areas of confusion.
  • The best marketing you can do is to do good work for your clients.
  • Be responsive to your clients. If you’re working with them on a case, they will want to hear from you ASAP.
  • If you are relatively new to the field of law, your fresh perspective is an asset and you may have a unique perspective to offer.

Alay Yajnik: Welcome to Lawyer Business Advantage. This podcast is dedicated to helping attorneys earn more money, get better clients and spend more time with family. I’m your host, Alay Yajnik, founder of Law Firm Success Group. Smart business guidance for small law firms begins in 3…2…1….

Alay Yajnik: And it’s my pleasure to welcome to the show today. Josh Berger, partner at Berliner Cohen. Josh, how are you doing?

Josh Borger: I’m doing wonderfully. How are you doing?

Alay Yajnik: I’m doing very well, thank you. Thank you so much for joining Lawyer Business Advantage. I’m very excited to be talking with you today.

Josh Borger: I’m looking forward to it as well.

Alay Yajnik: And you and I are both members of Provisors. And there are a number of litigators in that networking group. There are a number of litigators in every metro area, but most litigators do things a little bit differently. And so what I’d love to hear from you is what are the types of cases that you absolutely love?

Josh Borger: My cases run the gamut because they come from other lawyers. And what the lawyers tell me is they look to the fact pattern. They scratch their head. They threw up their hands and said, “Yeah, I don’t know.” And then they tossed it over to me. So the fact patterns I love are the complex ones, the convoluted ones, the really fascinating ones. I will find something fascinating about every case that I have. I’ve had cases where people lost hundreds of thousands of dollars in a wire fraud scheme. It runs the gamut. But because of that, I absolutely love it.

Alay Yajnik: This definitely plays into something I wanted to talk about, because whenever I speak with you and you talk about the law, you communicate with such passion and such enthusiasm. I know you have a whole history around this, so I’d love to hear from you: why is it that you decided to become a lawyer? Take me a little bit on that journey.

Josh Borger: Oh, I always knew I was going to be a lawyer. I wrote my first contract in sixth grade. It was between my brother and my parents because he didn’t want to take piano lessons anymore. And I remember being in high school when they were playing Christmas music over the loudspeaker. And I researched whether you could, and I went to the principal and said you have violated the Establishment Clause of 1804. My aunt, who’s in her 90s, said, “Josh, you’ve always been like this.”

Josh Borger: So I love the research aspect of it. I love the history of it. In my free time, I researched the history of laws. I remember yelling at 3:00 in the morning, “I can’t believe that!!” My wife woke up and said, “What’s happening?” And I said, “Do you know what’s in the Magna Carta?” She still reminds me of that because I couldn’t sleep. And why would you not read the Magna Carta at 3:00 in the morning? To be a lawyer for the money is just absolutely wrong. It is way too much work. It’s not worth it. And nothing is worth it for that.

Josh Borger: But if you’re a lawyer, because you think what we do is fascinating, because you’re part of this incredible continuum going back thousands of years, going back to when the Norman smacked into England, and you are part of this history of developing common law, then it’s a pleasure and an honor. And you wake up every morning jazzed about being able to do what you do. I’ll tell you, I had a trial that went on for weeks, phase one alone. And at the end of phase one, there were three firms on the other side. I was lead on mine. One of the lawyers in charge of his firm, well-known firm in San Jose, leaned over and said, “You get way too much joy out of this.” You can’t get too much joy out of this. It’s an honor to practice. And if you view it like that, you’re going to be salivating at every case that comes your way because there’s something about it that’s just fascinating.

Alay Yajnik: You have such a dynamic personality, were you always this way with this kind of personality, this enthusiasm, this energy, or is that something that developed over time?

Josh Borger: Always, always this way, every one of my family has said Josh takes over a room, even from the time he was young, he would go in and he would take over the room. I think it’s probably being third child. You have to make yourself known.

Alay Yajnik: No one’s going to hand you anything. You’ve got to get attention.

Josh Borger: No, but I do remember also let me say that with permission of the principal, I didn’t skip school, but I took a day off in high school and I went to see a trial in court and sat there for the whole day. And I was probably hooked in being a lawyer long before that, but that was also fascinating. I still remember that to this day as a learning experience, everything is.

Alay Yajnik: Well you’re such a high energy guy. How has that factored into your career and helped your career as an attorney?

Josh Borger: It has absolutely helped my career and I think makes me a better lawyer than I would be otherwise, because, again, lawyering is like a deluge of water just flying at you. And if you don’t love it, you’re going to get smacked down by the water. You’re going to drown. But if you love it, you’re going to accept the challenge of swimming to the top of the wave and riding the waves with as it comes at you. And so given that I find everything coming my way fascinating, I would always tell people I have young children, so I have no where to be on Saturday night. So I end up researching issues.

Josh Borger: That’s how I was able to get back money in this wire fraud scheme that I mentioned before where someone lost hundreds of thousands. I published articles on it because I thought it was fascinating and I thought the laws that were written were wrong and I couldn’t find anyone that had talked about this. I don’t like researching, writing about areas that everyone else has talked about. I like seeing what are the problems people are impacting and how can the law address that in ways that nobody has thought of. And so I’ve written articles. I ended up getting calls from NBC a few times. They came to my office to talk to me. They said they’ve been reading my articles. I had a call from someone who was in the Secret Service previously to talk about my articles.

Josh Borger: With this administration, I was constantly reading about whistleblowers, for example, and I thought, what can you take from your employer since their employers documents and, for example, give to the government and not get sued for in? The answer was nobody knows. There’s no clear answer. And so I researched it and I researched it and I researched it. And I published an article on this in the Daily Journal, it’s online. Clients followed but I never did this to get the client. I did it because I was fascinating about these issues I was reading about and thought the law can help.

Alay Yajnik: Well, this is a terrific segue into business development. And clearly, when you do business development and marketing, a lot of of what you do probably comes from the work that you’ve published, the cases that you’ve done, just how you’ve practiced law since probably the moment you got into the legal field. But I’m curious to hear your general approach to business development. What does that look like for you?

Josh Borger: Very different avenues. First, with respect to when you’re meeting other people, get to know them as people. Don’t do the hard sell, nobody likes it. Figure out how you can help them. Get to know them as a person, hopefully you like them as a person in turn. In due time, business will follow. But I think it’s a mistake when I see people at events who just have a stack of business cards and hand them out. Nobody’s going to do business with a business card. They want to get to know you as a person. And if you’re at an event and you only spend the entire time speaking and getting to know one person, that’s success. That’s not a failure. The failure is coming home with one hundred business cards. And then what everyone does is throw them away. So there’s that. Publishing and speaking. Find things that you find fascinating again that other people need to know about.

Josh Borger: Billions were lost in wire fraud and no one was talking about it because no one thought the law could help. I thought that was a mistake. People who think they have a whistleblower claim but are afraid to do something about it, need to know what their rights are and you as a lawyer have the privilege of being able to scratch your head and figure out and advise them. And so do that. You want to become the authority. If you’re just regurgitating what everyone else has said online, you’re not the authority, you’re just plagiarizing. But if you can figure out an avenue that other people wrestle with, that they’re not getting advice on and you can become the authority on that business, success will follow.

Alay Yajnik: And Josh, when you talk to attorneys that are kind of junior, their careers just getting started, looking to build a book of business, the things we have just discussed and you just shared with me: building really high quality relationships, becoming a thought leader by actually doing some research, finding a new angle, finding a new idea and bringing that to the legal community and then speaking in, writing on that. Those are things we’ve heard so many different times. You have a really awesome spin on that. And other successful attorneys have their own unique take on it. How do you communicate with someone who is junior their career and looking to build their business and get involved in business development?

Josh Borger: Being junior in your career, while some more senior lawyers may look down upon you as thinking you don’t know what you’re doing, but you come with a fresh pair of eyes. And some of us older ones, as I look in the mirror, my hair goes grayer, you get used to doing something in a certain way and your eyes may gloss over it and it may be wrong. I was working as a staff attorney for an environmental nonprofit my second year out of law school. I started off. I was a federal law clerk. And I filed a CEQA case against the State of California. And everyone was telling me you wouldn’t be able to do it based on this, it didn’t make sense. But it made sense to me and the case ended up going forward. In fact, Jerry Brown threw down a bill in the state legislature because of this case. It became huge. And it’s the thing that you would only do when you have a fresh pair of eyes and you look at a problem. And while everyone else is saying, we haven’t been doing it that way for 30 years, that’s not how we read it. But you’ve read it now, the statute for the first time, and that’s how you decided it should be read. And it turns out I wasn’t wrong. I was just talking to people who had been doing the same thing over and over and decided because of that, that’s how it should be done. A fresh pair of eyes is a wonderful thing. So take advantage of that. When you’re a lawyer, there’s things you can learn, but you can also teach others. Find your niche. You’re never too young to find your niche and educate others.

Alay Yajnik: And how do you do that? How do you go about finding your niche?

Josh Borger: There’s no one way, and this is where you have to love what you do, you have to read the paper and see what are the problems people are encountering and what can I do that other people aren’t doing. To respond to that, you have to look around. I ask people, instead of lecturing you about realtors, for example, about real estate problems, I ask them, what are the problems you’re encountering? I will research, figure out how to respond to that and advise you. But you who are on the ground need to tell me what are the problems you’re encountering? I can’t tell you what those problems are. I find that to be a very successful angle, because if if a few of them tell you that’s the problem they’re encountering, the odds are they’ve all encountered it or will in the future. And they appreciate that you’ve gone out to help them answer that problem versus the problem that you already know the answer to. And you just want to talk about it.

Alay Yajnik: You know, I think this is where attorneys have such a huge advantage over so many other professions. Law is everywhere. Law has been everywhere for a very long time, like you said, dating to back when the Normans invaded England. There are bodies and bodies and bodies of case law and legislation and situations that are relevant. And so there really is every opportunity in the world for an attorney to find some area of the law that they have genuine interest and genuine passion about. And then just start digging, get deep, find areas, find those gray areas, find the areas of conflict, learn it, research it and start to provide some opinions on it and just stay focused on that. And if you can maintain the passion and the interest, the rest of it will follow, like you said. And you are going to have a nice practice and it’s going to be a niche in an area that you love. And most industries, most professions, they can’t do that. It’s really a cool thing about being an attorney.

Alay Yajnik: So as you started to build your book of business and as you’ve built your book of business over the years, tell me a story about a key lesson that that you learned as you’re building your book.

Josh Borger: I give my clients my cell. Litigation is very stressful, and one of the mistakes that I think that I hear quite often is that lawyers aren’t responsive to people. The two people that have to be responsive are your lawyer and your doctor. When you contact them, they’re the two people you can you can never lie to the people that have to be most responsive when you contact them. It is because you are involved in a very stressful situation. And if they don’t respond promptly, it adds to the stress of it. My clients have my cell. I try to be very quick in responding. I put myself in my client’s shoes. If I were being sued, what would I want from my lawyer? And given that I think promptness and being very genuine in your responses has led to my success as an attorney.

Alay Yajnik: That attorney client relationship is oftentimes about business, it’s oftentimes about personal situations, but whatever it is, it’s an intensely personal relationship, no matter what the situation is. And I’ve heard this and I’ve said it on this podcast before, there’s a lot of jokes about lawyers, but when people have a big, big problem, their attorney is their best friend, really. And the work that attorneys do is life changing to the people that are involved in the companies that are involved.

Josh Borger: I have been at parties where people were sitting around telling lawyer jokes, and a lot of the people telling the jokes had hired me to do work for them. Not the other people didn’t know you will be the butt of the joke, but when the “sh” hits the fan, you’ll also be the first phone call and you have to accept that and you just deal with it and you roll with it. You are the confidant. You are the secret that they don’t want to tell. And that’s your job.

Alay Yajnik: For other litigators who want to build their books. What’s the piece of advice that you would give to them?

Josh Borger: Do incredibly good work for people. Take a case that was unwinnable and make it winnable. Every case is winnable and then word will get out. It’s that simple. Do a fabulous job. Doing a fabulous job is the best way to get a good client.

Josh Borger: I get my clients from two sources, lawyers who continuously send me their clients in litigation because I continuously get their clients good results.

Alay Yajnik: And the clients who achieve those results for other attorneys to refer to because of the legal work you do is something that I think is a real opportunity for litigators. Can you help me connect the dots? How is it that when you do good work for you in a case that word gets out to other attorneys?

Josh Borger: Well, if the attorney sends me the case and there are some where I’ve knocked that out of the park, as they say, for their clients over the years, then when their clients need litigation, they keep sending their clients my way. Those clients oftentimes are involved in groups, have other friends, know other people that will be in a similar situation. And so they tell those people then: You have have a problem you should reach out to Josh. I hired him. He did a good job. It was fair, the price. And I was very happy with it. It’s really that simple.

Alay Yajnik: That’s that is really one thing I’ve heard and I’d love to get your comment on this, is I had heard from other attorneys that when you do a great job in court, this other attorneys that are watching and they see you in court and then they get impressed and they send and they send cases to you. What’s been your experience with that?

Josh Borger: I have someone who was opposing counsel who sends me cases quite often. I settled the case, but it was an area of the law that I was learning. And I did very well when my client did very well on it. And as a result, after that, whenever he gets these calls and he does quite a bit, he sends them over to me. And that was opposing counsel. The some of the people who sent me the most cases started as opposing counsel, and I treated them with dignity. I was very professional, but I got a good result for my client. So the combination is. I told people it’s very simple, if you want a lawyer to send you a case, they have to like you and they have to think you’re good at what you do there. I synthesize five hundred pages. It’s that simple. And that is the relationship that I’ve built. So I do have a lot of people who started off as opposing counsel who send me work. Absolutely.

Alay Yajnik: And Josh as we’re wrapping things up today, what excites you about the future, Berliner, and with your practice?

Josh Borger: Oh, everything excites me about the future of my practice, the thought of expanding it into areas that I. Didn’t know about that I can learn about is absolutely fascinating. I was speaking to lawyers about artificial intelligence the other day and all the ramifications of that. And one of the lawyers is at a big firm in Palo Alto said, this is great, maybe we’ll have a case together. And that would be fascinating to have a case dealing with artificial intelligence. I was speaking to another about shareholder activism, and I admit that what I thought it was was something completely different. And he educated me as to that, he thought he said, well, maybe we’ll have something together. That would be fascinating. So what fascinates me? What what am I excited about? The same thing I’ve always been excited about: of being brought into new and fascinating areas of the law and learning about it, the laws. The ability to keep learning! What an amazing thing to do with your life! To have a career where you get to keep learning and scratching your head and you can do it until forever and a day. I think Jim Brosnahan is still practicing and he must be in his 80s because you love it, because you’re still learning. And when you view it like that, why would you ever stop? You’re going to give your client your all and you’re going to love giving your all. And because of that, you’re going to be very good at giving your all. Your work product is going to be good because you don’t view it as torture. You view it as an honor.

Alay Yajnik: There are attorneys listening, who have some really interesting cases with crazy fact patterns, and they will probably be reaching out and giving you a call. So if they want to connect with you and reach out to you, what’s the best way for them to do that?

Josh Borger: I am a Berliner Cohen in San Jose, Like most people, I’m working from home right now, but you can send me an email through the site, or leave me a message. I check my voicemail constantly and I will get back to you right away.

Alay Yajnik: Josh, thank you so much for being on the podcast today. Great insight, very entertaining. Lots of great tidbits and takeaways. Thank you so much. Everyone, that is Josh Berger, partner at Berliner and an amazing litigator.

Josh Borger: Thank you so much for having me.

Alay Yajnik: And that’s a wrap for this episode of the Lawyer Business Advantage podcast. One thing that would really help both us and other new potential listeners is for you to rate this show and leave a comment in iTunes, Stitcher or wherever you tune in to listen. And I want to hear from you. So connect with me on LinkedIn and let me know what you think of this episode. And if you are a solo or an owner of a small law firm and you’re looking to earn more money, attract better clients or reduce your stress, we would love to talk with you to see how we can help. Request your free law firm assessment by visiting We look forward to talking with you soon. Thank you for listening. My name is Alay Yajnik. Until next time, remember: you can seize freedom. You can embrace happiness. You CAN build your perfect practice.


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