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					PLUS   So You Have a Case in Alameda                                  When the State Bar Comes Knocking:
       County: What You Should Know                                    Practical Tips to Avoid Bar Troubles
                         John Hill                                                           Joseph R. Carlucci




             Trial Lawyer
       The                                                                                                    SUMMER 2010


             Serving the members of the San Francisco Trial Lawyers Association since 1950




                                                               IN THIS ISSUE

                       From Disbarment to Reinstatement:
                        A Lawyer’s Long Road in Recovery
                                                                    by Sam Bellicini
Feature
SFTLA CALENDAR OF EVENTS

                                                                            Trial Lawyer
                                                                      The




Calendar                                                              2010 Officers
                                                                      Linda Scaparotti, President 	 	
                                                                      Jonathan Gertler, President-Elect	
                                                                      Kathryn Stebner, Vice President	        	
	                                                                     Todd Schneider, Secretary	 	
                                                                      Terrence Coleman, Treasurer	 	


Upcoming MCLE’s
                                                                      Doris Cheng, Parliamentarian		          	

                                                                      Board of Directors
                                                                      Robert S. Arns             Lee Harris
                                                                      June Bashant               John Hill
                                                                      Karine Bohbot              Anthony Label
                                                                      Boone Callaway             Micha Star Liberty
July	27:	Roundtable	-	Waivers & Releases                              Robert Cartwright, Jr.     Wesley Lowe
                                                                      Sanford M. Cipinko         J. Kevin Morrison
                                                                      Terrence J. Coleman        Monique Oliver
August	24:	Roundtable	-	Five Star Offense in Premise Liability        Quinton Cutlip             Rebecca Paul
                                                                      Anthony P. David           Shaana Rahman
                                                                      Daniel Dell’Osso           Randall Scarlett
September	14:	MCLE	(PM)-	All About Liens	                             Christopher Dolan          Steven B. Stein
                                                                      Shannan Dugan              Albert G. Stoll, Jr.
                                                                      Amy Eskin
September	28:	Roundtable	–	Reading Your Adversary in Mediation        Linda Fong
                                                                                                 Stephen Tigerman
                                                                                                 Christopher Viadro
– sponsored by the Women’s Caucus                                     Charles Geerhart           Guy Wallace
                                                                      Rebecca Grey               Alice Wolfson
                                                                      Dawn L. Hassell            Mark Zanobini
October	19	-	MCLE:	Strategic Deposition Techniques
                                                                      Committee Chairs
November	9:	MCLE	(PM)-	Interactive Jury Selection                     ADR Oversight: Stephen Murphy and Steve Stein
                                                                      Committee on Directors: Steve Tigerman, Linda
                                                                      	       Scaparotti, Jon Gertler
November	16:	Roundtable	-	Ethics/Legal Malpractice                    The Carlene Caldwell Scholarship: Anthony Label
                                                                      Community Involvement: Shannan Dugan
                                                                      Diversity Committee: Monique Olivier,
December	7:	MCLE-	Making the Invisible Injury Visible                 Shaana Rahman
                                                                      Education Committee: Amy Eskin
                                                                      Finance Committee: Todd Schneider
December	14:	Roundtable	-	Multi-Media Workshop                        Magazine Committee: Chuck Geerhart
                                                                      Membership: Rebecca Paul
                                                                      New Lawyers Division: Micha Star Liberty;
                                                                      Seth Rosenberg
                                                                      Trial Court Oversight: John Hill, Mark Zanobini
                                                                      Women’s Caucus: June Bashant




Upcoming Events                                                       AD Hoc Committees & Liaison Positions
                                                                      Website: , Linda Fong, 	
                                                                      CAOC Liaison: Chris Dolan
                                                                                                    	

                                                                      AAJ Liaison: Randy Scarlett
                                                                      Trial Watch Liaison: Al Stoll

                                                                      Executive Director
                                                                      Juliette Bleecker
August	12:	New Lawyers Division	-	Happy Hour Takeover
                                                                      Magazine Editor
                                                                      Chuck Geerhart
September	9:	New Lawyers Division	-	Happy Hour Takeover
                                                                      Contributing Editors
                                                                      Linda Scaparotti, Rebecca Paul
September	22:	Women’s Caucus	-	Women Referring Women

October	8:	Event	-	Judge’s Dinner Dance                               The Trial Lawyer is published by
                                                                      The San Francisco Trial Lawyers Association

November	3:	Women’s Caucus	-	What I Learned from My Cases I’ve Lost   225 Bush Street #357 San Francisco, CA 94104

                                                                      Phone: (415) 956-6401 FAX: (415) 956-6680
November	11:	New Lawyers Division	-	Happy Hour Takeover               email: admin@sftla.org     www.sftla.org


November	6:	Event	-	Mock	Trial
                                        Trial Lawyer
                                The



                                                                SUMMER 2010




Contents	                                                                              ADVERTISERS INDEX



features                                                                               Tristar Investigations
                                                                                       eclaris
                                                                                                                            2
                                                                                                                            2
	 16	 From Disbarment to Reinstatement: A Lawyer’s Long Road in Recovery               Robert M Hirsch                      2
	     	    by	Sam	Bellicini                                                            Myers Stevens Mello                  3


columns
                                                                                       CSC Anatomy Arts                     3
                                                                                       Premerie Global Services             5
                                                                                       Barbagelata & Associates             4
      07	 Verdicts	by	Rebecca	Paul
	 	        Noteworthy	Verdicts		For	Deserving	Plaintiffs				                           Colour Drop                          6
	                                                                                      Millennium Settlement Consulting     6
      11	 PRACTICE TIPS	by	Joseph	R.	Carlucci							 	
                                                                                       Atlas Settlement Group, Inc          8
	     	    When	the	State	Bar	Comes	Knocking:		Practical	Tips	to	Avoid	Bar	Troubles	
                                                                                       Juris Productions                    9
      13	 PRACTICE TIPS	by	David	Mann						 	                                          Fishkin Slatter LLP                 10
	     	    The	Substance	Abusing	Attorney:		A	Problem	in	Search	of	a	Solution	
                                                                                       Hon Thomas Dandurand                10
      20	 EVENTS	Photography	by	Juliette	Bleecker                                      InXpress                            15
								   2010	Fellowship	Launch	Party                                                ADR Services                        15

	     23	 COURT SIDE	by	John	Hill
								   So	You	Have	a	Case	in	Alameda	County:	What	You	Should	Know		
                                                                                       LLC/Mass Mutual
                                                                                       Vasylionis Investigations
                                                                                                                           17
                                                                                                                           18
                                                                                       A Maggie Saunders & Associates      19

departments                                                                            Court Call
                                                                                       Mobile Transcript
                                                                                                                           19
                                                                                                                           21
	 IFC	Calendar of SFTLA Events
                                                                                       JAMS                                22
	 	 MCLE Calender
	                                                                                      Trialsmith                          25
	 04	 President’s Note	by	Linda	Scaparoti                                              Lesti Structured Settlements, Inc   26
	 	 We’re	at	Our	Best	when	We	Join	Together
                                                                                       Aragon-Haas                         27
	 05	 Editor’s Message	by	Chuck	Geerhart                                               Homeputer                           29
	 	 In	An	Emergency,	Read	This	Magazine                                                Patrick & Company                   29

      06	 SFTLA Diversity Corner	                                                      Karp Capital Managment              30
                                                                                       Peachtree Pre-Settlement Funding    31
      18	 CAOC Corner	by	Nancy	Drabble                                                 Doc Impact                          33
	     	    Does	Arnold	Schwarzenegger	Drive	a	Toyota?
                                                                                       Fix LLP ad page                     BC
	 32	 Closing Argument	by	Arkady	Itkin
	 	 Losing	With	Grace	is	Winning
                                                                                                             SUMMER 2010 | 1
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2 | T H E T R I A L L AW Y E R
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                                                                                                                                                                SUMMER 2010 | 3
                                   PRESIDENT’S MESSAGE | by Linda Scaparotti


                                   We’re at Our Best when We Join Together

                                   I
                                         n this issue of the magazine we            to CAOC and our issues. It felt particularly
                                         explore some of the issues surround-       satisfying when the budget was passed
                                         ing attorneys and addiction, worka-        and funding for the courts was reinstated,
                                   holism being the one with which we are           a key issue for which we lobbied.It also felt
Linda Scaparotti is a sole prac-   all most familiar. Not only do we all work       particularly good that SFTLA worked with
  titioner in San Francisco and    tirelessly for our clients, we also work         CAOC to accomplish these goals.
 currently serves as President.    with dedication on the issues and politics          I appreciate and encourage every
                                   we care most about. While I have had to          member to give as much as he or she can
                                   accept as much as anyone that balance is         to SFTLA through speaking on our CLE

                                   “I am still grateful for the time and effort our Board and
                                    other members contribute to SFTLA. ”
                                   necessary between personal life and work,        panels, writing articles for the magazine,
                                   I am still grateful for the time and effort      purchasing a table for an event, attending
                                   our Board and other members contribute           our CLE’s, encouraging others to become
                                   to SFTLA.                                        members, and applying for a position on
                                      Every week SFTLA hosts a plethora of          the Board.
                                   educational, social, sponsorship, support,
                                   and recognition events. In the past several
                                   months the Board and staff have hosted
                                   the Trial Lawyer of the Year event, attended
                                   Lobby Day in Sacramento, planned our
                                   annual goal setting retreat, chosen our
                                   judges of the year, mapped out the Judges’
                                   Dinner Dance, hosted the new attorneys’
                                   bar, honored our diversity fellows, listened
                                   to our female judges, offered the best open-
                                   ing and closing arguments in a variety of
                                   cases, shared the best trial tactics known
                                   to the plaintiffs’ bar, presented the impor-
                                   tance of our legal system and the right to
                                   a jury trial to middle school students, put
                                   together a comprehensive manual of depo-
                                   sitions of a well known defense expert,
                                   and that’s just a portion! I have chosen just
                                   one of our events to review.
                                      SFTLA members, including many Board
                                   members, attended a very successful Lobby
                                   Day in Sacramento hosted by CAOC.
                                   CAOC did an outstanding job of organiz-
                                   ing the event, identifying key pieces of leg-
                                   islation , pairing the constituents with the
                                   legislators, and providing excellent written
                                   materials for our own education and that of
                                   the legislators and their staff. It’s hearten-
                                   ing to see the attention the legislators pay

 4 | T H E T R I A L L AW Y E R
  EDITOR’S MESSAGE | by Chuck Geerhart


 In an EmErgEncy,
 read this magazine
I
      f this issue of Trial Lawyer were a CLE   are among the most “popular” along with
      program, it would be called “Lawyer       the old standby, failure to pay monies           Chuck Geerhart is the editor
      Emotional Distress and Substance          owed to the client?                              of the Trial Lawyer and a
Abuse.” Alas, we are not offering CLE               Also in this issue, John Hill has written    Member of the Board of
credits here, but this could be the most        a detailed, invaluable primer on how to          Directors of SFTLA. He is a
important issue of a legal magazine you         litigate a case in Alameda County. John          partner with Paoli and
ever read, because it could save a career or    solicited a lot of input from the judges for     Geerhart, a San Francisco
even a life. Here’s why: as David Mann’s        this article, so read it and heed it.            Firm specializing in
article points out, substance abuse is far          So, this issue is about helping other law-   personal injury.
more prevalent among lawyers than the           yers who may be in trouble with alcohol,
general       population—roughly      double.   drugs, emotional issues, or a combination


 “This could be the most important issue of a legal magazine you
  ever read, because it could save a career or even a life.”

David is the Northern California Consul-        of the three, which tend to go hand in hand.
tant for the Other Bar, a confidential recov-   Please read the featured articles—they will
ery organization aimed solely at lawyers        give you tools that may help someone on
and judges, and independent of the State        the brink of disaster.
Bar. (It was founded by Ed Caldwell, past
president of SFTLA.) The odds are very
good that anyone reading this magazine
either has had substance abuse issues or
knows someone who has. Addiction is a
family disease—it affects everyone around
the addict or alcoholic, including law part-
ners and colleagues. David’s article offers
some “real world” practical tips on how to
help someone who may be flushing his or               Try ReadyConference Plus Two Weeks for
life down the drain before it’s too late.                             FREE!
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of alcohol abuse in the 1990s. Sam’s cover                     for your firm? It’s easy to find out.
story recounts his long road back to sobri-          TWO-WEEK FREE TRIAL. As a SFTLA member, you are
ety, and the labyrinth the State Bar made             authorized for a no-cost, no obligation, two-week trial.
him run through—twice—in order to finally
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helps lawyers in trouble with the Bar.              To activate your service,
    Joseph R. Carlucci, Supervising Trial           call 800-707-8688 or go to
Counsel for the State Bar, offers up the            www.premconfaffinity.com.
most common pitfalls that lead to lawyer
discipline—did you know that failure to
return phone calls and return client files

                                                                                                    SUMMER 2010 | 5
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6 | T H E T R I A L L AW Y E R
  VERDICTS | by Rebecca Paul


noteworthy Verdicts
For Deserving Plaintiffs

T
                                                                                               Rebecca Paul is a columnist
        hree cases are included this edition    time of impact. Plaintiffs used the defense    with The Trial Lawyer and is
        of noteworthy significance. In all,     liability expert’s own scene diagram to show   a Member of the Board of
        the plaintiffs suffered significant     that he was. Following that, the judge gave    Directors of SFTLA. She is a
and serious injuries. Don Krentsa and Walter    the jury an instruction from the bench that    solo practitioner in San Fran-
Walker represented a man struck while           plaintiff was within an unmarked crosswalk     cisco specializing in Elder
walking across an intersection; Mike Kelly      when he got hit.                               Law, including Conservator-
represented a baby who was injured during                                                      ships, Elder Abuse, Neglect
birth; and Anna Dubrovsky and George            Verdict: On October 25, 2009, after two        and Financial Abuse, Per-
V. Choulos represented a man struck by a        days of deliberation marked by a take-         sonal Injury and Medical
tanker truck while riding his motorcycle. All   it-or-leave-it offer of $1,000,000 from        Malpractice.
faced tremendous obstacles during trial.        defendant, the jury returned a verdict of
                                                $5,558,823, finding Mrs. Thrasher 49%
Case: YAO v. THRASHER                           responsible and Mr. Yao 51% respon-
Court: San Mateo County Superior Court          sible, for a net to Mr. Yao and his wife of
(October 29, 2009); Hon. Judge Mittlesteadt     $2,738,232.

Plaintiff’s Counsel: Don Krentsa, Esq.,
Meisel & Krentsa, 300 Sansome Street, Suite     Case: RODGERS v AFFILIATED COMMUNITY MEDICAL
600, San Francisco (415) 788-2035; associ-      CENTER & RICE HOSPITAL
ated Walter Walker, Esq., Walker, Hamilton      Court: 8th Judicial District Court, Kan-
& Koenig, 50 Francisco, San Francisco (415)     diyohi County, Minnesota (February 11,
986-3339, as trial counsel                      2010); Case No: 9320-1052; Hon. Judge
                                                Donald M. Spilseth
Defense Counsel: Farmers Insurance Com-
pany In-house counsel Andrew Lauderdale         Plaintiff’s Counsel: Michael A. Kelly, Esq.,
and Rick Peterson of San Jose, despite Mrs.     Walkup Melodia Kelly & Schoenberger,
Thrasher’s $5.5 million of insurance            San Francisco, California, (415) 837-1375,
Facts: Han Yao was a 70-year old retiree,       pro hac vice; local attorney Ed Matonich of
recently emigrated from China, where he         Matonich and Persson, Hibbing, Minne-
had been an aerospace engineer. On July         sota.
19, 2008, he was hit by an automobile while
he was walking across the intersection          Defense Counsel: David Alsop/Angela
of Lago Street and Los Prados in his new        Nelson, Gislason & Hunter 701 Xenia Ave.,
neighborhood.                                   South Suite 500, Minneapolis, Minnesota
   Mr. Yao was thrown 47 feet by the impact.
He sustained brain damage and tetraplegia.      Facts: Elise Rodgers went into labor on
He underwent five-level fusion of his cer-      June 5, 2007. She was a first time mother,
vical vertebrae and installation of multiple    22 years old and past due. Because she
plates and screws in his left shoulder.         was post term, her doctor elected to induce
   At mediation, Farmers offered $0.            her labor. Gabrielle Vencel-Olsen MD was
                                                a family practice physician employed by
Trial: The major liability issue was whether    Defendant ACMC, a clinic operator that
plaintiff was in an unmarked crosswalk at       employs more than 160 physicians in a

                                                                                                  SUMMER 2010 | 7
variety of specialty disciplines.                              exceed 6 years. Plaintiff’s expert said life expectancy
After roughly 22 hours of chemical management with             was at least 18 years.
Cytotec and Pitocin, Elise’s cervix was still not fully           Past medical bills totaled $1,600,000. For future med-
effaced and had dilated to only 4 cm. The fetal moni-          ical bills dependent on life expectancy: defense assumed
toring strips indicated troubling changes in the baby’s        a 5 year life expectancy with attendant care expenses at
baseline heart rate, decreased variability, and late decel-    3 million dollars; plaintiffs projected a life expectancy of
erations.                                                      12- 15 additional years at cost of 9 - 15 million dollars.
   The nurse charged with watching the strip failed
to recognize the problem and did not call a physician.         Verdict: The jury awarded the plaintiffs a total sum of
Instead, an on-call obstetrician, who was randomly             $23,200,000: $1,700,000 - past health care expenses;
checking the progress of laboring women from home,             $10,000,000 - future health care expenses; $1,000,000
saw the alarming fetal monitoring strip. He immediately        - past general non-economic damages; $9,000,000 -
called into the hospital for an emergency Caesarian sec-       future pain, suffering, disability and emotional distress;
tion.                                                          and $1,500,000 - loss of earning capacity.
   As a result of oxygen deprivation during the labor
and delivery course, the baby, Kylie Rodgers, suffered         Commentary: This verdict was the first plaintiff’s ver-
brain damage, resulting in spastic quadriplegic cerebral       dict in a medical malpractice case in Kandiyoh County,
palsy, cortical impairment, neurological difficulties, and     Minnesota. (In fact, it was the first plaintiff’s verdict of
seizures.                                                      any kind in this western Minnesota town of 16,000 in at
                                                               least the last nine years according to the Court admin-
Trial: During the liability portion of the trial, the plain-   istrator.) Mike Kelly was asked to try the case after all
tiffs were able to show that after 20 hours of chemical        factual discovery was completed. He had not met any of
induction of labor, a regular and acceptable contraction       the defendants or defense witnesses. He was required
pattern was never obtained.                                    to cross examine all six defense experts without know-
    The defense proffered a pediatric neurologist to tes-      ing their opinions prior to trial because Minnesota does
tify that the child’s likely future life expectancy did not    not have pretrial expert depositions. Also, in Minnesota,




8 | T H E T R I A L L AW Y E R
the defense argues first and Plaintiff rebuts. The defen-   way 92, in San Mateo County, at approximately 11:30
dants were the lone hospital and primary medical clinic     a.m., Plaintiff Clayton Miranda DaSilva was riding his
in town. During trial, the defense arranged to have the     2005 Yamaha motorcycle with a group of 3 friends, in
jurors’ doctors come and watch the proceedings – pre-       a southbound direction. Defendant Ramon Ornelas, an
sumably to pressure them into a finding in favor of the     employee of defendant Thompson & Harvey Transpor-
local healthcare providers. The plaintiff’s mother is a     tation, Inc. was operating a 2007 Freightliner Classic
young unmarried mom and was no longer living in the         tractor, pulling a 2001 Beall Tanker, owned by defen-
town where the care occurred.                               dant employer Thompson & Harvey Transportation,
                                                            Inc. Mr. Ornelas was driving on Highway 35 in a north-
                                                            bound direction. The southbound and northbound lanes
Case: CLAYTON MIRANDA DASILVA v. RAMON ORNELAS AND THOMP-   are single lanes divided by a double yellow line. Mr.
SON & HARVEY TRANSPORTATION, INC.                           DaSilva was negotiating a blind right hand curve on an
                                                            uphill grade right before the incident. Mr. Ornelas was
Court: San Mateo County Superior Court (March 26,           negotiating a left hand curve on a downhill grade. At
2010); Hon. Judge Joseph Bergeron; Case No. CIV             some point, as the two vehicles met, the rear wheel of
474496                                                      the tanker struck Mr. DaSilva’s motorcycle. Mr. DaSilva
                                                            contended that Mr. Ornelas was driving his truck too
Plaintiff’s Counsel: Anna Dubrovsky, Esq., George V.        fast for conditions and was not able to keep his truck and
Choulos, Esq., Choulos, Choulos & Wyle, LLLP, 425           trailer within its lane while negotiating a left hand turn.
California Street, Suite 1800, San Francisco, California    The rear wheels of the tanker off tracked to the inside
(415) 474-7800                                              and came across the double yellow line into Mr. DaSil-
                                                            va’s lane of travel. Defendants contended that plaintiff
Defense Counsel: Norman LaForce, Narayan & Hudson,          was attempting to pass two of his friends to his right
560 Mission Street, #2100, San Francisco, CA 94105          while going around right hand turn, was too close to the
Facts: On September 15, 2007, on Highway 35 (also           double yellow lane, lost control of his motorcycle and
known as Skyline Boulevard), just south of High-            ran into the rear wheels of the tanker.




                                                                                                 SUMMER 2010 | 9
Injuries and damages: Following the incident, plaintiff               past non-economic loss - $925,000; future non-eco-
was airlifted to Stanford Medical Center. He sustained                nomic loss - $2,350,000. Following the comparative
multiple fractures and underwent 17 surgeries at Stan-                fault against plaintiff of 25%, the final award to plaintiff
ford Medical Center. As a result of his injuries plaintiff            was $3,522,171.75.
lost the use of 85% of his left hand, walks with a limp and
it is unknown if he will ever regain full use of his left leg.
    Plaintiff sustained past medical expenses of approxi-
mately $507,229.06 and past wage loss of approximately
$132,207. Plaintiff’s medical experts Dr. Schwartz and
Dr. Feinberg testified that plaintiff would incur future                    San Francisco Superior Court (Retired)
medical expenses of approximately $949,277 and would
incur future loss of household services between $84,559
to $284,250.
                                                                          Mediation	and	Arbitration	Services
Settlement Discussions: Plaintiff served an Offer of
Compromise in the sum of $4,500,000; defendants
                                                                                 At	Affordable	Rates
countered offered with an Offer of Compromise in the
sum of $450,000. Mediation was held on December 15,

                                                                                       Hearings
2009 before Jack Williams, Esq., where, defendants
reduced their expired Offer of Compromise to $150,000.

                                                                                     $250	per	hour
Following mediation plaintiff served a new Offer of Com-
promise in the sum of $3,400,000. Defendants renewed
their offer of $450,000 before trial.


Verdict: Following a month long trial and two and a                                    (415)	955-0503
half days of deliberation, the jury returned a verdict of
$4,696,229.00 (less 25% comparative fault for plaintiff)
                                                                                 425 Market Street, Suite #2200
and awarded plaintiff: Past wage loss - $120,000; past                             San Francisco, CA 94105
medical expenses - $507,229; future medical expenses
- $709,000; future loss of household services - $85,000;


   FishkinSlatter LLP
         attorney professional responsibility and conduct
                                                                 1111 Civic Drive, Suite 215 Walnut Creek, California 94596
                                                                 T 925.944.5600 F 925.944.5432 www.fishkinlaw.com




        ATTORNEY CONDUCT MATTERS

      State Bar Defense                                     Ethics Advice                    Expert Witness

        J EROME F ISHKIN | L INDSAY K OHUT S LATTER | S AMUEL C. B ELLICINI
                                                            Attorneys at Law

           Every few days, new court decisions affecting California attorney conduct are filed.
               We summarize these cases on a What’s New page at www.fishkinlaw.com


                                     Jerome Fishkin is A-V Rated by Martindale-Hubbell


10 | T H E T R I A L L AW Y E R
  PRACTICE TIPS | by Joseph R. Carlucci


When the State Bar Comes Knocking:
Practical Tips to avoid Bar Troubles

F
        ew attorneys set out to commit pro-         section 6068(m)).
        fessional misconduct. Yet each year                                                       Joseph R. Carlucci is
        hundreds of attorneys find them-            Failure to perform services for client        Supervising Trial Counsel
selves the subject of State Bar disciplinary        (R.P.C. rule 3-110(A)).                       Office of Chief Trial Counsel
proceedings and the recipients of disci-                                                          State Bar of California.
pline. One reason is that some attorneys            Failure to refund unearned fees, illegal
have adopted bad habits in their practices          or unconscionable fees (R.P.C. rules
that are a prescription for a State Bar com-        3-700(D)(2) and 4-200).
plaint. Not surprisingly, most complaints
to the State Bar come from clients. The             Improper handling of client money
way to avoid discipline is to stay out of the       (R.P.C. rule 4-100).
State Bar disciplinary system altogether.
The best way to do this is to give your cli-        Failure to return client files (R.P.C.
ents no reason to complain against you.             rule 3-700(D)(1)).	
   Rather than discussing any particular
rule, I am going to highlight some bad              Improper withdrawal from employ-
practices of attorneys that I see every day         ment (R.P.C. rule 3-700(A)(2)). Oth-
as a State Bar prosecutor. I will also offer        erwise known as abandonment, often
some advice on how to avoid these traps.            it is not intentional, but is the result
Hopefully, this article will make you think         of neglect of a difficult client and/or
about your own practice and whether it’s            case that the attorney regrets taking.
susceptible to these pitfalls. For most,        	        	        	      	         	      	
what follows will seem so elementary as         Attorneys can avoid these common com-
to be silly. Still, every day the State Bar     plaints. Many clients complain to the State


 “Many clients complain to the State Bar only as a last resort
  after giving their attorney several opportunities to respond...”

receives complaints concerning attorneys        Bar only as a last resort after giving their
who failed to heed the advice that follows.     attorney several opportunities to respond
   Attorneys must first understand that the     to their inquiries. Practicing the legal
State Bar does not limit its investigation      equivalent of “good bedside manner” is the
to the subject matter of the complaint. If      best way to avoid most performance-based
during the investigation there is probable      complaints. Good bedside manner can be
cause to believe other misconduct not           as simple as keeping your client informed
complained about occurred, the State Bar        of the status of their case. Don’t let the bill
will broaden the scope of its investigation.    be the only thing the client receives from
                                                you. Clients just want to know what is
The most common complaints to the State         going on, even if it means nothing is going
Bar are:                                        on. I have encountered several cases where
                                                clients were forced to complain to the State
    Failure to return a client’s telephone      Bar just to get the attorney to return their
    call (R.P.C. rule 3-500; B&P Code,          phone call.

                                                                                                   S U M M E R 2 0 1 0 | 11
    Communication doesn’t always have to be a letter to      should be the only signatory. Don’t leave pre-signed
or phone call with the client. Copy your client in on any    checks in the office for emergencies or when you are out
significant correspondence or pleading you draft. Also,      of town. And never have a stamp made of your signature.
tickle your file every 60 to 90 days to send the client a       Failing to keep sufficient records, financial or other-
status letter. Even if there is nothing new to report, the   wise, is another bad practice that can cause an attorney
client will appreciate confirmation that their case is not   to find themselves the subject of disciplinary proceed-
being neglected. Another crucial component of good           ings. Concerning financial records, R.P.C. rule 4-100(C)
communication is to admit mistakes immediately to the        seems easy enough to follow. It requires that an attor-
client. Don’t let the cover-up become worse than the         ney: 1) maintain a written ledger for each client’s money
crime, so to speak. Simple negligence or even innocuous      and each account; 2) maintain bank statements and can-
mistakes can become serious misconduct by concealing         celled checks for each account; and 3) conduct monthly
the information or lying to a client.                        reconciliations that balance out client ledgers and
    Through thoughtful client and case selection, many       accounts. Often, however, attorneys being investigated
complaints can be avoided before an attorney even            have not kept some, or even any, of the required records.
accepts employment. The decision to take a case or           This never helps the attorney. The State Bar has access
client is yours. During these difficult economic times,      to and will obtain your trust account records, even if you
it may be difficult to turn away work. But there may be      won’t.
compelling reasons to do so. Before taking any case,            Besides financial records, it is important to document
make sure you are competent to do so by answering            communication of significant information to clients.
these questions: 1) Do I have the legal competence to        Every conversation with a client should be memorial-
handle this case? 2) Do I have the time competence to        ized. This prevents a he said/she said situation of what
handle this case, i.e. can I devote the time necessary to    was discussed and will help corroborate your version of
the case and client or do I have too many cases already?     events should it be necessary to do so.
3) Do I have the emotional competency? Or am I expe-            Even if you believe you may prevail, avoid fee dis-
riencing personal or other problems in my life that will     putes with a client, especially suing a client for fees.
prevent me from performing? and 4) Do I have the fiscal      Instead, consider refunding disputed fees to disgruntled
competence? Can I afford to front costs and finance the      clients. In the long run, the time and money you will
litigation of this case if necessary? If the answer to any   save by avoiding arbitration and State Bar complaints
of these questions is not an unqualified “yes,” pass on      will make up for earned money refunded. Many times,
the case.                                                    when a client complains to the State Bar about a fee dis-
    Another cause of client complaints that is often over-   pute, evidence of other misconduct is uncovered.
looked by attorneys is the over-delegation of authority         Finally, if the State Bar does contact you, respond!
and tasks to non-attorney staff. Remember, you duties        An attorney is required to cooperate with a State Bar
to your client are non-delegable and you will be held        investigation pursuant to B&P Code, section 6068(i).
responsible in State Bar Court for the misdeeds of your      Failure to do so is cause for discipline. The majority of
staff. Therefore, it is vital that you properly train and    State Bar complaints are closed at the initial intake stage
supervise your staff. Make it a priority to know what they   after receiving the attorney’s response. And remember,
are doing. Make sure staff members know the limits of        candor and honesty to the Bar is essential. Don’t fall into
what tasks they are permitted to perform. Don’t assume       a situation where your cover-up is worse than the origi-
your staff is aware of the Rules of Professional Conduct.    nal complaint.
They are not bound by them, but you are. Thus, time
should be spent familiarizing staff with the rules.
    Never delegate client intake to support staff. Though
it may seem inconceivable, my office has many investi-
                                                                      Save the date
gations where the client has never met, seen or talked to
their attorney. Instead, all communication, beginning at
                                                                   Judge’s Dinner Dance
intake, has been with non-attorney staff. This practice is          October 8, 2010 ritz carlton Hotel
fraught with peril. Besides exposing yourself to allega-
tions of aiding and abetting the unauthorized practice of                            honoring
law by a non-attorney or worse, you will be stuck with a
client you didn’t choose.                                                 Hon. maria Elena James &
    Also, open and read all of your mail. Keep your bank
accounts, especially your trust accounts, to yourself. You                       Hon. mary Wiss


12 | T H E T R I A L L AW Y E R
  PRACTICE TIPS | by David Mann


The Substance Abusing Attorney:
a Problem in Search of a Solution

The Problem                                     quantity just for the user to function and      David Mann is
Substance abuse has always been identi-         feel normal. These phenomena combine            a Stanford Law graduate
fied with the legal profession. The stereo-     to create habituation, or regular, repeated     and the Northern California
type of the “old drunken trial lawyer” has      use. Habituation over time becomes full-        Consultant for The Other
existed since the 18th century. Unfortu-        blown addiction: the state where the user       Bar. More information is
nately, recent revelations have confirmed       craves the substance, can no longer con-        available at TheOtherBar.
the validity of this stereotype.                trol his or her intake, and continues to use    org, or by calling the toll-free
   Those who study and claim to know            in spite of adverse consequences.               hotline at 1.800.222.0767.
about such things tell us that there is an          So, predictably, a certain percentage of
unusually high incidence of alcoholism          attorneys end up in trouble. At that point,
and drug addiction in the legal profes-         we face the same dilemma all alcoholics
sion. It is estimated that approximately        and addicts face: we must become will-
8-10% of the general population suffers         ing to admit we have a problem and ask
from the disease of chemical dependency.        for help. The obstacle is that, as attorneys,
According to the American Bar Associa-          we are peculiarly constructed so as to find
tion, the corresponding estimate for law-       this surrender nearly impossible. The legal
yers is nearly double, between 15-18%. (In      profession and addiction psychology are,
approximately 50-70% of cases in which          perversely, the only two areas of human
lawyers face disciplinary charges, alcohol-     endeavor where the word “denial” is a term
ism and/or addiction is involved.)              of art. Why would any self-respecting
   This should come as no surprise. We          attorney admit anything, unless under
attorneys tend to be highly competitive,        extreme duress, especially that he or she
driven overachievers by nature. That’s          is an alcoholic or addict who needs help?
what gets us into and out of law school in      And so it frequently doesn’t happen, until
the first place. Once in practice, the adver-   it is way later and things are far worse than
sarial system pushes us to win at any cost.     they needed to be. Not every substance
Competition encourages workaholism.             abusing lawyer hits an ugly bottom and is
Put simply, many lawyers get stressed out.      disbarred. Some lawyers are still “at the
   Enter the medication. Alcohol and drugs      top of their game” professionally when
provide quick relief from stress, assistance    they hit bottom. One such lawyer, now 13
in sleeping, a needed energy boost, false       years sober and a Board member of The
confidence, or temporary escape from it         Other Bar, was 66 years old and a name
all, as the case may be. Although not ideal     partner at a very successful San Francisco
from a health perspective (all substances       law firm when he was 5150’d (committed
have deleterious side effects) self-med-        to the psych ward) due to alcohol-related
ication might be an acceptable survival         behavioral problems. Some other exam-
strategy were it not for some unfortunate       ples:
realities of brain chemistry: tolerance,
dependence, habituation and addiction.          “Still in Charge”
Tolerance occurs when the brain and body        A classic “high bottom” alcoholic, Jim
adjust to the substance, requiring more and     was the managing partner in a success-
more to achieve the same desired result.        ful medium-size San Francisco law firm
Likewise, dependence develops because           specializing in complex business litiga-
soon the substance is required in some          tion. Until he was in his fifties, drinking

                                                                                                 SUMMER 2010 | 13
was a non-issue: wine at dinner,           and then as one of two partners at a      years of “successful” drug use,
a cocktail at a party, or a beer at a      thriving boutique practice. He con-       David’s habit escalated into intrave-
ballgame. He began drinking vodka          sidered himself invincible, someone       nous methamphetamine addiction.
as a sedative at night in response to      who could do and have it all. By his      Within three years he was disbarred,
stress-induced insomnia. Eventu-           late thirties, weekend cocaine use        a convicted felon, and homeless on
ally his consumption increased and         had escalated to a habit of staying       the streets of San Francisco. Only
began to include daytime drinking.         alone at the office “working late”,       after18 months of abject misery and
Jim now recalls himself as a “stealth      while ingesting ever larger amounts       deprivation did he reach his bottom.
drinker”, who never suffered any of        of cocaine and-top shelf tequila.         He woke up one morning in a play-
the classic visible alcoholic experi-      Mike believed that he was fooling         ground, being prodded by children
ences: no public displays of bad           his wife, his kids, and everyone else.    and mothers attempting to deter-
behavior, passing out, fights, or DUI      He was less and less able to fool         mine if he was alive. Forty years old,
arrests. He did however, begin to          himself, though, privately suffering      six feet tall and 130 pounds, pen-
have trouble remembering things,           and worrying more and more about          niless, nearly suicidal, and totally
causing himself embarrassment.             his physical and mental health. He        disconnected from family, friends,
(For example, writing and sending          describes his substance abuse strat-      and society, David finally went into
a series of threatening letters to the     egy as follows: After calling home        treatment, lured at first simply by
IRS angrily demanding his refund,          to serve notice that he, once again,      the promise of a bed, some food,
although he had already received,          had to “work late”, he would snort        and a hot shower. He has remained
cashed and deposited the check,            cocaine and drink all night, waiting      clean and sober ever since.
a fact proven to him when he was           until the sun was almost up before
sent a copy of said check bearing his      driving home against the rush hour        The Solution
signature and bank deposit informa-        traffic, in order to avoid being on the   As these stories indicate, substance
tion.) There were other “disturbing”       road during the prime hours when          abuse comes in many guises, and
occurrences, such as falling down          the CHP was cruising, looking to          we make assumptions, generaliza-
in public and splitting his pants,         arrest people like him. Once home,        tions, or excuses at our peril. One
and being unable to find his car           he would quietly slip into bed next       thing remains true in every case
in a parking garage. His work was          to his wife, a heavy sleeper, wait a      however: no addict or alcoholic can
largely unaffected. Although people        short while, then get up, shower,         get better unless and until he or she
at his firm were concerned for his         and return to work, pretending he         admits there is a problem, asks for
well-being, his status as manag-           had spent most of the night at home       help, and becomes willing to do
ing partner prevented anyone from          asleep. He was convincing himself         what is necessary - frequently out-
confronting him, for fear of reprisal.     that this strategy was effective, until   patient or residential treatment, but
Ultimately, several partners con-          one morning he looked up to see           at minimum, ongoing participation
tacted The Other Bar, which helped         the innocent face of his four-year-       in a structured program of recovery.
to organize an intervention result-        old son staring at him with a pained      Roadblocks to recovery in the legal
ing in Jim going to rehab. After           expression. His son said simply:          community include the outdated but
a period of failed experimentation         “Real daddies come home at night”,        deeply ingrained notion that addic-
with moderation, Jim realized that         turned, and left the room. Later          tion is a sign of weakness or moral
total abstinence was the only solu-        that day, Mike took steps to begin        failing. Lawyers and judges are held
tion, and he succeeded in getting          the process of becoming clean and         in high regard and usually maintain
and staying sober.                         sober.                                    outside appearances. They are held
                                                                                     to a high standard of conduct. They
“Nobody Knows”                             “Not Dead Yet”                            are accustomed to being in control,
Mike had always been popular, aca-         David started taking amphetamines         and giving advice rather than receiv-
demically successful, athletic, and        in the form of diet pills as a study      ing it. They are often more likely to
a self-described “party guy”. Rock         aid in college during the seventies.      intellectualize the problem and are
concerts, drinking and drugs were          He used amphetamines in various           fearful of disclosure, loss of respect
part of his lifestyle, balanced by long    forms to achieve great academic suc-      of colleagues, loss of clients, loss of
distance running, and a “normal”           cess, graduate from a top-tier law        job, loss of license.
family life (i.e., a wife, two sons, and   school, and pass the bar exam. He            Typically, the admission and the
a mortgage). He had a career as            went on to a solid career as a public     cry for help occur when the alco-
an accomplished litigator, first as        defender and solo criminal defense
an associate at a prestigious firm,        practitioner. Ultimately, after 15                       ...Continues on page 28

14 | T H E T R I A L L AW Y E R
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        Hon.                 Hon.              Hon.               Hon.              Hon.             Hon.              Hon.
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                                                                                                             SUMMER 2010 | 15
Feature
SFTLA FEATURE ARTICLE | by Sam Bellicini




From Disbarment to Reinstatement:
A LAwyeR’s Long RoAD in RecoveRy
I
      am an attorney who was reinstated after being dis-       covery every step of the way. I had to spend thousands
      barred. I am sort of the world’s tallest midget of the   of dollars in attorney fees to obtain an order compel-
      California State Bar discipline system: I practiced      ling discovery responses from the State Bar. I was sand-
law for only 28 months before I lost my license in 1993.       bagged with a new State Bar expert report days before
Sad but true – that has got to be some kind of record.         the first trial, and the judge let it in. In the second trial,
   I am also a recovering alcoholic. I got sober in May        the State Bar contended the published State Bar Court
2001. I filed my first reinstatement petition in September     decision from March 2006, was not binding on the State
2003. I won after a week-long trial in December 2004.          Bar, because it wasn’t final. Thousand of dollars later, I
The State Bar’s appeal dragged on for 15 months, and           won that motion too. To this day, when you look at my
during that time the State Bar Court refused to accept         membership record (SBN 152191), the State Bar, at the
any evidence of my continued sobriety. In March 2006,          height of bureaucratic hubris and spite, shows the 2008
the State Bar Court reversed my reinstatement. Accord-         decision as “final” and the 2006 decision as “pending.”
ing to the three-judge review panel, I hadn’t been sober          It did stink. And there was a time when I blamed the
long enough back in 2003; my petition never should             State Bar. I don’t blame them any more.
have been filed in the first place. I would have known            For any of what I say next to make any sense, I have to
that, if I had just read a half-dozen out-of-state cases,      tell about a moment I had, about three years ago, when
and disregarded existing California law.                       I was about 6 years sober. It was a weekend. I woke up
   I was given permission to file a new petition in a year     and went to the bathroom to brush my teeth. I saw my
(this was special – the rules say two years). I filed the      reflection in the mirror, framed in the bright pale light of
new petition in July 2007. I won again after another           the early morning sun. I had an epiphany.
week-long contested trial (and now you get an idea of             I was looking at the face of my alcoholism. The dis-
what that $400 annual fee actually pays for). I was rein-      ease was me. It was an “inside job” all along. I finally
stated on October 15, 2008, almost 5 years to the day          got it. Somewhere down the line, I got hard wired to
after I filed that first petition.                             drink a quart of bourbon for breakfast and kill myself in
   Jerry Fishkin and Lindsay Slatter represented me.           slow miserable bits and pieces. And if I did not recover
Here is the highlight of my direct examination, under          from that on a daily basis, I was going to die. The dude
oath, during that last trial:                                  in the mirror was just as smart and tough as I was, except
                                                               he knew what I was thinking, and I couldn’t begin to
Q. (Jerome Fishkin): Mr. Bellicini, this is your second        fathom him. In four words, my alcoholism was “cun-
    reinstatement trial. You’ve been through the appeal        ning, baffling and powerful.”
    process. You’ve been at this for 5 years. Have you            And so it was with the State Bar. We hear, time and
    learned anything during that time?                         again, the very criticisms of our judicial system that I
A. (Sam Bellicini): Yes.                                       had of the State Bar Court. We have an access crisis in
Q. And what have you learned?                                  California – it is so expensive to initiate or defend liti-
A. I have learned that being a party in State Bar Court        gation here, that more and more, average non-attorney
    really stinks.                                             citizens are forced to act in pro per.
                                                                  And how many times have we heard the other side
It did stink. All of the intimate details of my life had       doesn’t play fair? That the court doesn’t follow its own
been laid bare to the public. It seemed to me that, the        rules? That my attorney doesn’t care about my case?
more sordid the detail, the more the State Bar prosecu-        Why is the average shelf-life of civil litigation some-
tors paid attention to it. They showed little interest in      where between two and five years? That big firms, big
my recovery; they were keenly interested in a couple of        corporations, and Byzantine bureaucracies wait you out
bad things I did when I was drunk.                             and wear you down with seeming limitless resources
   The prosecution did not play fair. They fought dis-

16 | T H E T R I A L L AW Y E R
and personnel? At what point in              same court system, and oppose the         court’s time, or my client’s money,
our profession did truculence win            same prosecutors, that messed with        fighting over garbage that isn’t
the day over civility?                       me during my five-year reinstate-         worth fighting over, and because
   And that’s my point. To quote             ment ordeal. Revenge is sweet; and        I prepare, I know the difference. I
Pogo Possum: “Yep son, we have met           payback’s a bitch.                        return my client’s telephone calls.
the enemy and he is us.” The State              But I can’t get the vision of that     All of them.
Bar, literally, is us. It is a reflection,   dude in the mirror, out of my head.          I have a unique empathy for our
in pale and bright morning light, of         I’m mortally afraid of that guy. And      clients. I’ve been there and back in
who we are as a profession. And              so I live, daily, to change some of       the State Bar Court. I understand
none of it is going to change, until         that reflection: I fight like hell for    the frustration a lawyer feels when,
we change.                                   our clients, but I am always cour-        suddenly, she’s sitting on the other
   Today I work for Jerry and Lind-          teous, and good on my word, with          side of the desk, because now she’s
say. I originally relished the thought       the prosecutors. They treat me the        the client.
of getting paid to practice in the           same way, mostly. I don’t waste the


                             Samuel C. Bellicini is an SFTLA member and an associate attorney
                             at Fishkin & Slatter, LLP, a professional responsibility law practice,
                             whose primary practice is litigation in the State Bar Court. He is an
                             active participant in The Other Bar




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                                                                                                    SUMMER 2010 | 17
CAOC CORNER



Letter from Sacramento
The great Divide
BY LEA-ANN TRATTEN, POLITICAL DIRECTOR, CONSUMER ATTORNEYS OF CALIFORNIA




S
         ACRAMENTO – Fifteen                 This year’s Big Spill is causing     a vital role in ensuring its protec-
         years ago I sat mesmerized       far more destruction – and once         tion. At CAOC we engage in politi-
         listening to Bruce Broillet      again Big Oil’s federally mandated      cal action to elect progressive leg-
talking about the “Great Divide” and      $75 million damage cap seems the        islators who will say no to the oil,
the role of trial lawyers in fighting     sweetest of sweetheart deals.           tobacco and insurance industries,
for people against corporate power.          Folks in the Gulf are left with      and protect Californians.
I quickly learned that to be a part of    about $1 billion from the federal tax       We have a winning message – yet
the trial lawyer family is to be part     on oil set up after the Exxon Valdez.   it takes money to get that message
of a larger political movement. We        That is a fraction of what will be      out. We know that opening your
are fighting to give voice to people,     needed to make whole the thousands      wallet for a cause or candidate is a
in the courtroom and in the state-        of businesses and residents – from      leap of faith. But none of us want to
house.                                    fishermen to shippers and coastal       be left gazing into the Great Divide,
   Sadly the events of this spring        resorts and wildlife sanctuaries.       wishing we had done more.
in the Gulf of Mexico illustrate all         So damage caps are bad for
too starkly the devastating conse-        people, businesses and the econ-
quences of loosened regulations and       omy. They will
limited liability. BP has unleashed       leave the Gulf
an unprecedented environmental            Coast       finan-
disaster, and they are already shirk-     cially     devas-
ing responsibility – fighting lawsuits    tated.        They
in the court of public opinion. BP        will fail to ade-
CEO Tony Hayward insultingly told         quately com-
the Times of London that because          pensate thou-
“this is America,” many of the claims     sands of people
will be “illegitimate.”                   who lose jobs.
   What does Tony have to fear? Big       They won’t pro-
Oil has managed to take environ-          vide the capital
mental disasters of its own creation      businesses will
and turn them to its own advan-           need to start
tage. In the wake of 1989’s Exxon         over again.
Valdez tragedy, federal legislation          On the other
was enacted that amounted to a get        side of the Great
out of jail free card for Big Oil. That   Divide are big
legislation traded a tax on oil com-      industries with
panies for oil spill damage caps of       big      financial
$75 million. Its intent was to shield     resources. Cali-
oil companies from big damage             fornia has a
awards, like the $287 million a jury      vast and beau-
awarded against Exxon (plus $5 bil-       tiful coast, and
lion in punitive damages, which was       our civil justice
later greatly reduced).                   system        plays

18 | T H E T R I A L L AW Y E R
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                                                                                           S U M M E R 2 0 1 0 | 19
   EVENTS | Photography by Juliette Bleecker




  FELLOwSHIP LAUNCH PARTY




                                   SFTLA’s Trial Advocacy Fellowship was launched last month at
                                   the gorgeous Ambassador Club. The Fellows mixed and min−
                                   gled with 100 new and seasoned practitioners. To learn more
                                   about the fellowship program visit us online at www.sftla.org


                                   Page 20 Pictures Left to Right:
                                   2010 Fellow, George Kawamoto chats with Demian
                                   Oksenendler; Party sponsor Gregg Crothers shares a
                                   moment with Diversity Co Chair Monique Olivier; Veen
                                   Firm associates Andje Medina & Kimberly Wong.
2 0 | T H E T R I A L L AW Y E R
SUMMER 2010 | 21
2 2 | T H E T R I A L L AW Y E R
  COURT SIDE | by John Hill


So You Have a Case in Alameda County
What you Should Know

General Civil Cases                           sitions to proceed in his courtroom or an      John Hill is a principal with
The Superior Court is a direct calendar       adjacent room. On occasion, he orders          the Law Offices of John Hill,
court for civil cases. There are now four-    the first deposition(s) in the courtroom       located in Oakland. He is
teen direct calendar judges for general       in multiple plaintiff cases or class actions   a longtime trial lawyer and
civil cases. In addition, Judge Burr han-     to establish a template for the remaining      a member of the SFTLA
dles all asbestos pre-trial matters, Judge    depositions. Motions to compel can now         Board, where he serves as
Baranco is an open trial department and       take months; find out whether your judge       Chair of the Courts Liaison
Judges Freedman and Brick handle com-         will do an early intervention or your case     Committee.
plex litigation.                              could be delayed for months. Judge Freed-
   Generally on the day after you file        man, the Supervising Judge of Civil, in
your complaint a Notice Of Assignment         consultation with his colleagues is con-
of Judge for All Purposes will be mailed      sidering having a full-time commissioner
to you. You have a short time fuse within     handle discovery. If you have thoughts on
which to decide to use your peremptory        the matter, he would probably welcome
challenge: according to Code of Civil Pro-    them on his email.
cedure 170.6 “within 10 days after notice
of the all purpose assignment.”               Settlement Conferences
   	                                          Judges Hunter and Zika conduct settle-
The Courts Web Site                           ment conferences in their assigned cases.
The court has an exemplary web site. Go       Most other judges refer their cases for
to     http://www.alameda.courts.ca.gov/      settlement conferences to other judges.
courts/, click on “DomainWeb: Access to       Judges Roesch and Gonzalez Rogers are


“Recognizing the problem of burgeoning filings, the
 court has established an ADR program.”
General Civil, Family Law, and Probate        the ones to whom cases are frequently
Cases,” click on “Direct Calendar Depart-     referred for settlement conferences. You
ments,” click on your judge, and you will     can request a specific judge for a settle-
find information from your judge about        ment conference and you might just get
how he or she manages his or her court-       him or her.
room. You can also click on “list of cases”
to find out how many cases your judge is
handling or the age of your case compared     Chances of Getting Out to Trial
with others set for trial on the same day.    There are no statistics on the percentage
                                              of general civil cases that actually go to
Discovery Disputes                            trial on the date assigned. The general
Some judges invite informal conference        perception is that the chances are good,
calls, generally to be scheduled by email.    but not great. Each judge generally has
Others do not. Judge Freedman does real       six or more cases scheduled for trial every
time intervention on deposition objec-        week. When the direct calendar system
tions, and on occasion has ordered depo-      was established during Judge Hernandez’s

                                                                                              SUMMER 2010 | 23
tenure as Presiding Judge in 2007, it was anticipated that    giving the other side notice of upcoming trial witnesses,
each judge would have to handle about 450 cases. That         etc. Have your in limine motions that will be contested.
was thought to be manageable. Things have changed.            Have a list of exhibits to be marked and which are agreed
Although personal injury cases have remained constant         can be admitted. Have a jury questionnaire. Juror Ques-
or even declined over the past two years, employment          tionnaire for Civil Cases/Code of Civil Procedure section
cases and (especially) collection cases have burgeoned.       205(c)-(d), Judicial Council Form MC-001 is one that is
Even though the number of direct calendar judges has          very helpful, especially in zeroing in on suspected tort
gone from thirteen to fourteen this year, the number of       reform jurors. Even if you have a judge who generally is
cases per judge is approaching 600. There are 7,800           opposed to questionnaires, since this is a judicial council
pending civil cases. Scheduling of law and motion mat-        form and is approved by all sides, sometimes he or she
ters can take months. The time required for Case Man-         will go along with it. Given a choice, judges prefer to
agement Conferences, Law and Motion, and the time lost        send out to trial cases that they feel are ready to go and
during court closures for budget purposes, will limit the     that will be professionally tried; the others can wait.
time for trial. There are obviously dark clouds on the           Take the LR 3.35 seriously: one judge struck a defen-
horizon as concerns getting cases out for trial.              dant’s exhibits and experts, because they were not dis-
                                                              closed as required, resulting in a multi-million verdict.
Alternative Dispute Resolution
Recognizing the problem of burgeoning filings, the court      Voir Dire
has established an ADR program. Hopefully, it will prove      Years ago Alameda County juries were made up primar-
effective, so that your cases that have to be tried can get   ily of blue collar workers, union members, minorities,
out to trial. John Helie has been named ADR administra-       and persons with an average of a high school education
tor. Information regarding the program can be found by        or less. No more! There is not much industry left in the
going to www.alameda.courts.ca.gov/courts/, and click-        county. High tech workers have moved in. High school
ing on “Alternative Dispute Resolution Services.” The         or less jurors have been replaced with Ph. D.’s. The
mediators are found by clicking on “ADR website.” If          judges will tell you that the average education level of
you can agree on a mediator with your adversary, click        your juries is probably going to be a B.A. or better. The
on “Mediator Selection Form,” print out a hard copy and       minorities in the county for some reason do not seem to
complete it and submit it as instructed at the site. There    be proportionally represented in the jury pools. Unfor-
is no charge for the mediator’s preparation time or the       tunately, fewer and fewer jurors are getting paid by their
first two hours of mediation. Forty hours of mediation        employers; this fact complicates the ability to get work-
training are required to be on the list; if you meet the      ing people on your juryespecially a trial with a long time
requirements, you are encouraged to request inclusion         estimate. Nevertheless, Alameda County and San Fran-
on the list. Mr. Helie will respond to emails addressed       cisco City and County are considered the fairest venues
to him at jhelig@alameda.courts.ca.gov. Or you can call       for plaintiffs in Northern California (probably why almost
him at 510-891-6055.                                          all the asbestos cases are venued in those two venues).
    Do you want to litigate your case without ever going      Fortunately, once jurors get into the trial, they like it and
to a Case Management Conference? Agree with your              become disciples for the jury system, according to the
adversary to sign the stipulation to attend alternative       judges.
dispute resolution (adr) and delay initial case man−             No matter where your case is set for trial in the county,
agement conference for 90 days, a form included with          the juries are selected from the entire county. So you
the materials you receive from the court after filing your    can have Livermore jurors in an Oakland trial. However
complaint. You have until fifteen days before the first       anecdotally, some feel juries farther away from down-
CMC to enter into the stipulation. This is a gem that few     town Oakland are more conservative. That is probably
lawyers take advantage of, but shouldunless you really        the result of a problem with transportation to those court-
enjoy attending CMCssince you know the judge will gen-        houses. In any event the composition is not dramatically
erally require ADR anyway.                                    different in the various courtrooms.
                                                                 Most judges invite mini openings before voir dire
Trial                                                         begins; they feel it facilitates voir dire, because the
One way to substantially improve your chance of getting       potential jurors will give more realistic answers, because
out to trial is to thoroughly comply with Local Rule 3.35.    they will have a better understanding of the case. David
Have your agreed jury instructions segregated from the        Ball recommends against them on the theory that the
ones the judge will have to decide. Have a stipulated         plaintiff’s attorney has little credibility at that stage of the
order for the judge instead a plethora of useless in limine   case and a mini opening can only erode your credibility
motions on issues such as not mentioning insurance,           further (see David Ball on Damages). You will have to
                                                              decide which is the better choice in your case.
2 4 | T H E T R I A L L AW Y E R
   The biggest problem you will face is the extreme limi-    Interactivity with Jurors
tation that some judges have placed on voir dire, some       Most judges permit written questions that are gone over
as little as 15 minutes (Judge Zika). Others have no set     with the attorneys. Some judges explain the basis for
limits, but will limit you if your questions are improper.   sustaining or overruling objections. Some judges permit
Limited voir dire is an extreme problem for plaintiffs,      alternates to sit in on deliberations but not participate.
since studies have shown that about 1/3 of persons
called for jury duty are tort reform jurors.                 Technology
                                                             All the courtrooms are dated. Some have pull down
Time Limitations                                             screens, easels, and maybe a blackboard, but not much
Trial time limitations are coming more and more into         more. Only departments 20 and 22 in the Administra-
vogue as the courts case load has burgeoned. Some            tion Building and 510 (perhaps) in Hayward have evi-
judges will get both sides to agree on the time they need,   dence presentation equipment. Otherwise, as a general
along with the judge’s input, and then hold them to it       rule, plan on bringing everything you need for video or
with a time clock: each side getting the same amount         graphic presentations.
of time counting direct and cross. Do not underesti-
mate your time or you may end up with no time to cross       TV
examine defense witnesses. Others merely get testy if        Do you want to be on TV? More frequently the court
the case drags on longer than the judge feels necessary.     is getting requests to broadcast trials on Court Review
Some judges move cases along, because they know that         Networks. Some requests are being granted.
juries more and more resent intrusions on their time for
jury servicesometimes the jury makes the offender pay
with an unfavorable verdict.




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                                                                                                       SUMMER 2010 | 27
   ...Closing Argument continues from page 32                   ...The Substance Abusing Attorney
                                                                     continues from page 4

when you are ready to sit down and look at your work,          holic or addict has finally overcome his or her resistance
ask yourself some of the simplest questions – what went        to attending a twelve-step meeting. It is extremely dif-
wrong? Why did you lose? Were the opponent’s decla-            ficult for most people to do this, but attorneys, with their
rations supported by undisputed, well documented evi-          inflated egos, overactive intellects, concern for their
dence, while yours relied on speculations of your client       professional reputation, and consummate skill at denial,
and inadmissible evidence? Was the opposing counsel            seem to be particularly stubborn about refusing to go to
better prepared for the hearing better than you? Did s/        that crucial first meeting. This is where the Other Bar
he understand the law and the applicable cases much            comes in.
better than you? This means that in the future you will           The Other Bar is a voluntary recovery organization
likely start to prepare for a dispositive hearing much ear-    for those in the legal profession. It has been in existence
lier, to make sure that you are not only familiar with the     for over twenty-five years and has hundreds of members
relevant law, but you also remember the most important         statewide. They are from all walks of the profession, and
statutes and cases that are crucial to your case, as well      include judges, prosecutors, defense attorneys, large
as the authority for “counterpunching” the arguments of        firm partners and solo practitioners. The Other Bar’s
your opposition.                                               purpose is to provide strength and support to attorneys
                                                               who are recovering from problems with alcoholism, drug
Don’t Put All Your Eggs in One Basket                          abuse, or other addictions. To this end the organiza-
Most of us know that one lawyer who works around the           tion conducts regular AA-type meetings in dozens of
clock, who is stressing about every little thing in every      cities and towns across California. The Other Bar also
case, or who is obsessed with getting everything done          provides education and outreach in the form of Continu-
as soon as possible, no matter what. He who hardly ever        ing Legal Education Seminars.
takes a full lunch break. He eats behind his desk. He             If a friend, colleague, or family member is struggling
doesn’t even remember when he last took a vacation.            with alcohol or other substances, The Other Bar is avail-
Normally, the reason for such compulsive practice of law       able, free of charge, to provide assistance. The Other
is that this lawyer has absolutely nothing else going on       Bar can help you to make the initial approach, arrange
in his life. He is out of touch with his friends and he        interventions and treatment, and provide attorneys to
treats everything else in his life as secondary to his law     temporarily cover court calendars. If you prefer, you can
practice. When he loses, his entire world collapses as         call The Other Bar hotline to make inquiries or initiate
if it was standing on that one “leg”- his work - in the        the process anonymously.
first place. Any one-legged chair is inherently unstable          The unique effectiveness of the Other Bar lies in its
because no matter how strong it is, it’s bound to slip at      ability to lure the reluctant or fearful attorney alcoholic
least once in a while, at which time the whole chair folds     or addict into his first twelve-step meeting, thus provid-
down and violently hits the floor.                             ing him with access to recovery. Over the years I have
    To be a happy and fulfilled attorney and to radiate that   been affiliated with The Other Bar I have heard count-
ever important positive energy when interacting with           less stories where the pivotal surrender and beginning
your clients, other attorneys, the public and the court –      of recovery came as a result of attending an Other Bar
you must live a balanced life. You must actively pursue        meeting, which had been described to the unsuspecting
your personal and social interests and invest effort into      initiate in some suitably palatable terms, such as “a sup-
maintaining relationships, or else you will turn into one      port group for lawyers,” or: “a professional group where
of those obsessive compulsive, constantly stressed law-        we discuss our problems.” This starts the process, and
yers who cast a dark shadow on our profession. When I          often careers and lives are saved. To learn more about
am on the tennis court, winning or losing on the tennis        The Other Bar visit them on line at www.otherbar.org
court takes precedence over anything else and makes
me completely forget about everything else. It resets my
frame of mind and gives me that essential gift of mental
downtime. I urge you to find that kind of outlet for your-
self. It will allow you to take your mind off of all things
legal and return back to work with a clearer and stronger
mind and body.



2 8 | T H E T R I A L L AW Y E R
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                                                                  SUMMER 2010 | 31
                                    CLOSING ARGUMENT | by Arkady Itkin


                                    Losing With Grace is Winning

                                    I
                                         am an avid tennis player, and I love         tive, and that you realize there must be at
                                         watching the best tennis players in          least some valid reason for their victory.
                                         action. Among many things that sep-          Congratulating your opposition might
              Arkady Itkin is a     arate the world class tennis pros from the        also diffuse any tension between counsel
    specializes in plaintiff side   rest is their emotional stability and their       and eliminate past resentments. Above
   employment law, personal         incredible ability to lose gracefully. I firmly   all, giving accolades to your rival will make
 injury, and business disputes      believe that knowing how to lose on the           you feel good about yourself, as you will
  arising out of contracts and      legal battlefield with dignity and profes-        know that you are able to perceive your
                          fraud.    sionalism is paramount to both - our repu-        loss as a valuable professional experience,
                                    tation, professional confidence, personal         rather than some kind of humiliation.
                                    self-esteem, and your psychological well-            When tennis champions lose, they
                                    being. Just like professional top athletes,       openly and warmly admire the winner’s
                                    the best and the most experienced lawyers         talent before they talk about anything else.
                                    are defeated by their opposition at least         I have had a chance to admire my opposi-
                                    once in a while. As a lawyer, you should          tions after losing and I was also congratu-
                                    strive to win, but always be ready for the        lated by my rivals after my victory on more
                                    possibility of losing, especially consider-       than one occasion, and both felt equally
                                    ing the number of partially predictable fac-      great.
                                    tors that affect the outcome of your work,        Learn from Your Mistakes
                                    such as your judge, the jury, the opposing        Everyone knows how to enjoy winning and
                                    counsel, and of course - your client.             getting that large settlement or verdict,
                                       Here are a few simple things that every        and none of us needs to be taught how to
                                    lawyer can do when facing a loss in the           reward ourselves for our victories. But the
                                    courtroom that will make him / her better,        benefits of loss can be just as significant
                                    stronger, and happier:                            or even more significant. The best tennis
                                                                                      players in the world, after a few days of
                                    Congratulate Opposing Counsel on                  licking their wounds post defeat, go back
                                    Their Victory                                     to the drawing board. They watch on large
                                    After you lose a motion or any other kind         screens the same match, and analyze their
                                    of hearing, approach opposing counsel             mistakes with their coaches. They discuss
                                    and congratulate them on their good work.         their opponents’ strengths and how these
                                    Whether the outcome of any proceeding is          strengths can be effectively neutralized in
                                    correct or not in your opinion, the holding       the future.
                                    was favorable to the opposing side at least          I believe that trial lawyers should treat
                                    in part because of the opposing counsel’s         their losses exactly the same way. Instead
                                    work. You will be surprised how good it will      of blaming the judge for not issuing a
                                    make you feel once you approach oppos-            favorable ruling on a motion, or com-
                                    ing counsel and give them a compliment.           plaining about the arbitrator who doesn’t
                                    When you commend your opponent, you               know the law, or thinking that the jury was
                                    achieve several meaningful goals. First,          biased, why not go back and review what it
                                    you show that you are a professional, and         is about you that made you lose, and what
                                    you can rise above any personal hostility in      it is about opposing counsel that made
                                    the case, no matter how personal you take         them win?
                                    the matter and what kind of friction you             It’s not fun going back and looking at
                                    had with the opposing counsel. When you           your work and reliving the loss. So, you
                                    admire your opponents’ work, you show             might want to give yourself some time to
                                    them that you are capable of being objec-         get over the disappointing result. Then,
                                                                                                         ...Continues on page 28
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