Survival Guide for New Attorneys in California

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VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD CONTENTS Chair KENNETH W. SWENSON Articles Coordinator DENNIS PEREZ From the Editors 4 JERROLD ABELES (PAST CHAIR) ETHEL W. BENNETT STARTING OUT ERIC BROWN CAROLINE BUSSIN PATRICIA H. COMBS Integrity Is Everything 5 CHAD C. COOMBS (PAST CHAIR) By Judge Charles W. McCoy Jr. MICHELLE WILLIAMS COURT ELIZABETH L. CROOKE Forget (Some of) What You Learned in Law School 6 BEN M. DAVIDSON ANGELA J. DAVIS (PAST CHAIR) By Susan Estrich GORDON ENG DONNA FORD Much to Learn, You Still Have 7 STUART R. FRAENKEL By Benjamin G. Shatz MICHAEL A. GEIBELSON (PAST CHAIR) GABRIEL G. GREEN SHARON GLANCZ Networking Tips for the New Associate 9 TED HANDEL By Art Jalandoni and Jennifer A. Grady JEFFREY A. HARTWICK STEVEN HECHT (PAST CHAIR) JOSHUA S. HODAS The Challenges of Time Management for Associates 10 LAURENCE L. HUMMER By Felix Woo AMY K. JENSEN GREGORY JONES Achieving Financial Balance 11 MARY E. KELLY KENNETH K. LEE By Ben Fagerlind KATHERINE KINSEY KAREN LUONG Questions and Answers about Professional Liability Insurance 14 PAUL MARKS AMY MESSIGIAN By W. Brian Ahern MICHELLE MICHAELS COMM. ELIZABETH MUNISOGLU SHAPING YOUR CAREER RICHARD H. NAKAMURA JR. (PAST CHAIR) CARMELA PAGAY What Joining an Association Can Do for You 15 ADAM J. POST By David Reinert GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) DAVID A. SCHNIDER (PAST CHAIR) How to Work with Senior Partners 16 STEVEN SCHWARTZ By Michael A. Geibelson LOUIS SHAPIRO MAYA SHULMAN ALYSON SPRAFKIN In New Attorneys We Trust: How to Make In-House Counsel Happy 17 HEATHER STERN By Mhare O. Mouradian DAMON THAYER THOMAS H. VIDAL Weighing the Benefits of Being an In-House Counsel 18 KOREN WONG-ERVIN STAFF By David Schnider Publisher and Editor SAMUEL LIPSMAN Career Transitions 20 Senior Editor By Adam J. Post LAUREN MILICOV Senior Editor Dispelling the Common Myths about Careers in Public Interest Law 21 ERIC HOWARD Senior Editor By Hernán Vera KAREN KING Art Director The Essential Role of New Lawyers in Pro Bono Work 22 LES SECHLER By Blaine H. Evanson and Vania M. Gauthreaux Director of Design and Production PATRICE HUGHES Assessing the Risks and Rewards of a Solo Career 24 Advertising Director LINDA LONERO BEKAS By R. J. Molligan Sales and Marketing Coordinator AARON J. ESTRADA Effectively Handling High-Profile and Celebrity Cases 25 Administrative Coordinator By Thomas A. Mesereau Jr. MATTY JALLOW BABY

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LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2548 Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS President ERIC A. WEBBER CONTENTS President-Elect RICHARD J. BURDGE JR. Senior Vice President PATRICIA EGAN DAEHNKE Vice President PRACTICE BASICS LINDA L. CURTIS Treasurer Beyond Liability, Damages, and Collectibility: 27 MARGARET P. STEVENS The Importance of Vetting a Plaintiff’s Case Assistant Vice President PAUL R. KIESEL By Stuart R. Fraenkel Assistant Vice President HELEN B. KIM To Share Fee-Splitting Arrangements Is Human, to Disclose Is Divine 29 Assistant Vice President ELLEN A. PANSKY By Jeffrey D. Wolf Immediate Past President ALAN K. STEINBRECHER Mitigating the Challenges of Managing Your Practice 30 Executive Director By Christopher T. Anderson SALLY SUCHIL Associate Executive Director/Chief Financial Officer BRUCE BERRA Triggering General Liability Insurance Coverage for a Third-Party Claim 31 Associate Executive Director/General Counsel By Michael L. Cohen and Heather M. McKeon W. CLARK BROWN BOARD OF TRUSTEES Finding the Best Expert Online: A Direct Examination of 34 SEYMOUR I. AMSTER Directories and Referral Services P. PATRICK ASHOURI By Ashley Miller ROBERTA B. BENNETT ORI S. BLUMENFELD MARRIAN S. CHANG How to Succeed with Expert Witnesses 36 KENNETH CHIU By David Nolte BRIAN K. CONDON DUNCAN W. CRABTREE-IRELAND Dos and Don’ts of Paper Discovery 39 BRIAN S. CURREY JEFFERY J. DAAR By Justice Richard C. Neal (ret.) and Barbara Reeves Neal ANDREW S. DHADWAL ANTHONY PAUL DIAZ California E-Discovery Basics: Tips for the E-Competent Litigator 41 LOUIS R. DIENES DAVID C. EISMAN By Diane E. Barry and Judge James L. Smith (ret.) CHRISTINE C. GOODMAN JACQUELINE J. HARDING Cloud-Based Electronic Discovery Is in Your Future 43 ANGELA S. HASKINS By Robert J. Ambrogi HARUMI HATA LAWRENCE C. HINKLE II BRIAN D. HUBEN Advancing the Long-Term Strategy of Changing the Law 45 LILLIAN VEGA JACOBS By Blair Schlecter EVAN A. JENNESS RUTH D. KAHN Applying the “Usual Stipulations” at a Deposition 46 SAJAN KASHYAP MICHAEL K. LINDSEY By Heather E. Stern SARAH E. LUPPEN HON. RICHARD C. NEAL (RET.) AT THE COURTHOUSE ANNALUISA PADILLA DEBORAH C. SAXE How to Survive—and Even Succeed—in the Los Angeles Superior Court 48 LINDA E. SPIEGEL BRUCE IRA SULTAN By Judge Lee Smalley Edmon AFFILIATED BAR ASSOCIATIONS Litigation Tips for Tight Times 50 BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. By Judge Michael L. Stern CENTURY CITY BAR ASSOCIATION CULVER-MARINA BAR ASSOCIATION Expedited Jury Trials Offer Quick Trial Experience 52 EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY GLENDALE BAR ASSOCIATION By Steven P. Goldberg IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION The Rewards and Pitfalls of Class Actions 53 JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION By Brian S. Kabateck and Dominique Nasr KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES Making the Last Word Count: Guidelines for Writing an Effective Reply Brief 55 MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION By Damon Thayer SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION Protecting the Record for Appeal 57 SANTA CLARITA BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION By Robin Meadow SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. THE WORK OF A LIFETIME SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION The Practice of Law: Your Job, Your Career, or Your Calling? 59 WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES By Timothy A. Tosta

2 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:05 PM Page 3

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By Stuart R. Fraenkel

From the Editors

he Survival Guide for New Attorneys in work that they did not want to do them- another legal challenge. California is a compilation of articles that selves. Finally the big day came when we The transformation from student to pro- were selected to assist new lawyers with learned we passed the bar exam. We were fessional can be difficult. The good news is that T their pursuit of truth, justice, and the sworn in amid congratulations and an enjoy- excellent resources are available, including American way. Okay, the articles and the able party or two. the Survival Guide, for new lawyers seeking to knowledge they bestow will not make a new Somehow, for some inexplicable reason, minimize the obstacles on their road to lawyer “faster than a speeding bullet, more the world—including those who taught you becoming proficient attorneys. This third edi- powerful than a locomotive, and able to leap naught during your clerkships—thinks that tion of the Survival Guide—along with its tall buildings in a single bound.” Nevertheless, since you passed the bar exam and were predecessor editions in 2005 and 2006, which they do provide new law- are also available at the Los yers with critical insight, Angeles County Bar Assoc- guidance, and direction. iation Web site—is a collec- The editors of the Survival tion of nuts and bolts prac- Guide designed the publica- tice tips for litigators and tion to impart valuable in- transactional attorneys alike. formation to new lawyers— These articles will assist new the type of knowledge that lawyers with the develop- new lawyers did not learn ment and direction of their as students in law school. legal careers. We know the All of us lawyers—new stakes for new lawyers are and not so new—recall high and trust that this guide that in law school we were will help new lawyers gain a taught, for the most part, competitive advantage over black letter law, how to those who fail to see the light IRAC, and the philosophy and fall prey to the kryp- of the law. After gradua- tonite of ignorance. tion we studied voraciously The members of the for the California bar exam Survival Guide’s Editorial and then took that nasty little three-day test. sworn in, you now possess the knowledge of Committee are Ethel Bennett, Ori Blumenfeld, Our reward for our herculean efforts was Prosser and Witkin and are able to expertly Robert Glassman, Ted Handel, Michelle months of stress and agony as we awaited our navigate the tumultuous waters of the court Michaels, Mhare Mouradian, Adam Post, results. system, sagely avoid the land mines of litiga- David Reinert, Naeun Rim, Heather Stern, During that wait for bar results, when tion, and steer unerringly around the twists Damon Thayer, Koren Wong-Ervin, Andrew time seems to stand still, most of us enjoyed— and turns of transactional dealmaking. Yen, and myself, Stuart R. Fraenkel. On behalf as we had the two summers before—the lux- Fortunately, enough of us have not forgotten of Clark Kent, the Man of Steel, and all of the ury of working as a law clerk for a firm or solo our shared rites of passage, including the authors and editors of the Survival Guide, I practitioner. In the process we used our finely painful and seemingly endless searches we wish you all the very best and trust that in tuned new skill set to write legal briefs and engaged in to gain the knowledge and find the your pursuit of truth and justice, you will otherwise assist senior counsel with the grunt guidance to help us traverse through yet prevail. ❖

Stuart R. Fraenkel is the co-founding partner of the Los Angeles office of Kreindler & Kreindler LLP. His practice involves representing plaintiffs in high-profile and complex personal injury, wrongful death, business litigation, entertainment, qui tam, and insurance-related matters. He is a member of the Editorial Committee of the Survival Guide for New Attorneys in California. The other members are Ethel Bennett, Ori Blumenfeld, Robert Glassman, Ted Handel, Michelle Michaels, Mhare Mouradian, Adam Post, David Reinert, Naeun Rim, Heather Stern, Damon Thayer, Koren Wong-Ervin, and Andrew Yen.

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STARTING OUT

By Judge Charles W. McCoy Jr.

Integrity Is Everything

uring my first year in law school I had could be reduced to a single letter, what would engaged together in a calling, and the legal a 3L mentor who took me under his be that letter? I suggest there is one letter, profession is a body demonstrably greater wing. He started me in a study group and that letter is “I.” Not “I” as in “me,” but than the sum of its many parts. The job of D and showed me around the library. “I” as in “integrity.” lawyer and judge is one of the most compli- Soon he offered what he said was his most For lawyers and judges, integrity is more cated, demanding, and risk-ridden under- valuable advice of all: How to take a law than an ethical imperative. Integrity is every- takings imaginable. Those who fully integrate school exam. I was all ears. He lowered his thing. The word, by standard definition, themselves within the professional body gen- voice to a near whisper as he passed along his includes notions of personal credibility, inte- erally tend to be more productive, work more nugget of wisdom to me. gration within the professional community, efficiently, and benefit greatly from the help “Never miss a class,” he said. “Write down and a balance that comes from wholeness in and cooperation of their professional col- every word the professor says. Take notes at one’s personal and professional lives—integrity leagues. every turn—in your study group, when read- in the ethical sense, integrity in the integra- ing cases, even when you wake up at night tion sense, and integrity in the wholeness Wholeness with a bright idea. You will end up with per- sense. Wholeness in one’s personal and professional haps 1,000 pages of notes, too much to lives generates the wisdom and empower- remember for the exam. So outline your notes. Ethical Integrity ment that flow from living a balanced exis- Keep the outline to under 50 pages. Even Personal credibility is the quality of character tence. While lawyers and judges often special- that is too much to remember, so outline and judgment that attracts clients to lawyers, ize in their professional focus, specialization your outline to no more than 10 pages. On the gives lawyers the capacity to win consistently in this sense should not be taken as a synonym night before the exam, boil it all down to 1 before judges and juries, and gives judges for narrowness. Any lawyer standing before a page, then to a paragraph, then a sentence, the ability to do justice as well as ensure that jury to argue a cause knows the skills most then one word, and finally a single letter. the public sees that justice has been done. This needed to win are often learned outside the Cram yourself into the shape of that letter, and credibility attaches itself not only to the argu- law arena in the world where ordinary peo- go take the exam.” ment or ruling of the moment but also to the ple live. His advice, while certainly offered as a reputation of the person making the assertions The trial lawyer out of touch with common humorous comment on law school exams, or rendering the decision. It is built day by day folks will likely strike out in court—and most made a crucial point. Life’s large tasks are through countless interactions with others, especially in communicating with jurors. Out mastered by finding themes, overarching from the moment one first aspires to the proof touch judges may produce technically cor- truths, silver threads woven into life’s fabric. fession. The wise lawyer and judge knows rect decisions, but they will not necessarily And, for those aspiring for success in the pro- that every word and deed has, at least, the convince the public that justice has been fession of law, searching for those truths and potential for enhancing one’s personal credi- done. For the scales of justice to remain bal- remaining true to them is essential. bility, and that credibility is more easily lost anced, those who operate them, both at bench Law school exams are only the first in a than gained. and bar, must themselves live balanced lives. long series of professional tests determining Those who do that most successfully will be whether lawyers and judges master the essen- Integration empowered in their work far beyond those tial theme. The “final examination” is not one Integration within the professional community who do not. that will be taken while enrolled in law school is the great advantage of having a network of A legal career is a test of character. We who but rather throughout a whole professional professional relationships upon which one devote our careers to law want to pass that test lifetime. can consistently rely for encouragement, infor- with honors. And one key to winning top Is there a single theme that, if mastered, mation, and assistance in time of real need. grades here is found in the silver thread that will allow law professionals to graduate with The loner is often the loser in cooperative holds the fabric of our profession together— honors when their careers are ended? If it all matters. A profession is a body of persons the imperative of integrity. ❖

Charles W. McCoy Jr is a Los Angeles County Superior Court judge and past presiding judge.

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STARTING OUT

By Susan Estrich

Forget (Some of) What You Learned in Law School

ow often do law school professors advise almost always signals “not therefore.” “There- So I decided to try the old-fashioned you to forget what you have learned? fore” tells you that there is a missing link you method—not keyword searches, but natural While I don’t advocate throwing out the are trying to hide; otherwise, the “therefore” language—which produced more results than H baby with the bath water, consider the would be superfluous. I could read. I picked a few that looked like following to help you survive in the real world. But my absolute favorite worst sentence good ones, read them, and those decisions sent WRITE SIMPLY. I think there is something begins with “Thus, for example,” which me to some others. Lo and behold, while in the water at law schools that turns perfectly means, “Not only does this not follow from there were, in fact, only two cases interpret- good writers into terrible ones. People who that, but this is the only example I have.” ing the state law in question, there were at least once knew how to express an idea or argument RESEARCH CREATIVELY. Many, many half a dozen others interpreting analogous in a simple sentence with a noun and a verb years ago, attorneys performed legal research statutes that were clearly relevant—except to come to believe that legalese requires so much using books. I kid you not. You would find the computer. more. All of a sudden, a straightforward point one case, which would lead you to another, So view legal research not as drudgery gets loaded up with “therefores” and “where- and another. It was a little like following a but as a chance to be creative, to approach an fores” and “but howevers.” But however? path in the woods, especially if you came to issue from a different direction. Legal research Bad. Just bad. the task knowing nothing. Very inefficient is not simply a computerized exercise but— Law is a discipline, not a language. Write I suppose by modern standards, but you dare I say it—a forum for creative artistry, in English. Write simply. Write so that some- learned that the best legal research really is an which is also a much better way to think one who is not a lawyer can understand what exercise in creativity. I often tell my undergrad- of what you’re doing in front of the computer you are saying, even if the reader may not be uate students that if, like Rabbi Hillel, one of at midnight. in a position to know if you are right. the most important figures in Jewish history, DON’TFORGETWHYYOUWENTTO By the time I began my clerkship with I had to summarize all of the law while stand- LAW SCHOOL. Law students tend to forget Justice John Paul Stevens of the U.S. Supreme ing on one leg, my answer would simply be, why they came to law school in the first place. Court, I think it is fair to say that my writing “Like cases get treated alike, and the role of All those students who wrote those wonder- had become a caricature of legalese. I could lawyers and judges is to define in a principled ful essays—about international work, bring- barely say something without at least a few way (even if ideology and values are hidden ing the rule of law to other countries, using law commas, semicolons, and dashes in the sen- somewhere behind the rhetoric) those cases as a vehicle for social change, prosecuting tence. Justice Stevens, who had been a lawyer that really are alike.” and defending, working for the government in practice for years before becoming a judge, You can’t do that just by conducting or public interest or in underserved areas— laid down the law. If we wanted to write a keyword search. And don’t expect the com- suddenly decide all that matters is getting a job drafts he could use, they had to be written the puter—no matter how well programmed— in a top corporate firm. Big Law Rules! way he wrote. Simple English. Short sen- to produce the obscure case that can win the Nothing against top firms. I am fortunate tences. Clear statements. First, second, and argument. Only a person can do that. I to be a partner in one. But it is not the only third. No “wherefores” or “therefores.” remember a new lawyer explaining to me path. And these days, it is not a path available If you can’t make the argument in simple that after literally days (maybe even weeks) to most law students, not because they don’t English, it is almost certainly because there is of research, he was only able to come up with deserve the work or couldn’t do it but simply something wrong with the argument. Your two on-point cases for what seemed to me because of the economy. job is not to cover it up but to figure it out. a proposition that had to have generated more If your definition of success is getting a cer- Some easy legalese to spot: authority. He explained all the things that tain job and then you realize you aren’t going “Thus” almost always means, “Of course he had done on the computer with keyword to get it or you don’t have it, you have left this doesn’t follow from that, but I was hop- searches, even the keywords he used, as if yourself no option but to see yourself as a failing you wouldn’t see that if I said ‘thus.’” that would convince me that there really was ure. And why? Because you didn’t get a job “Therefore” is even worse. “Therefore” no authority. that you really didn’t even want until you

Susan Estrich is the Robert Kingsley Professor of Law and Political Science at USC and a partner in the law firm of Quinn Emanuel Urquhart & Sullivan LLP.

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STARTING OUT

saw everyone else rushing up the escalator in By Benjamin G. Shatz the hope of getting it? I have been teaching now for 30 years. That gives me a pretty big group of former students who serve as my eyes and ears. Many of them started at big firms and found that the environment did not suit them at all, which is just fine. Pay back those loans before you put on the golden handcuffs of a condo you Much to Learn, You Still Have really can’t afford and a fancy car you don’t really need. You may not be in a position to follow your heart in your first job; you may ongratulations on joining our profession. you fail to read the entire opinion, you may love Big Law. But don’t forget that even if no Presumably you arrived here at the start miss something important—something your one can have it all at once, you don’t have to of your career after several years of law adversary is likely to find and use against give up your dreams because of what it cost C school. That experience should have you. At some point in law school, your pro- to earn that J.D. My happiest former students provided you with a new vocabulary and a fessors warned against relying on headnotes. are the ones doing things that they love—pros- variety of skills to enable you to think like a Heed that advice, and break the habit of read- ecuting, defending, practicing law in the four lawyer. You probably have already discov- ing only selected portions of cases. Read the corners of the world, starting new firms and ered, however, that law school does not actu- whole megillah every time. businesses, and yes, practicing in big law ally prepare you to practice law. Thus, you rec- ALWAYS THINK CROSSOVER. Back in firms that really do suit them. ognize the need to continue your education law school, you knew that if it was Tuesday Try to remember. What was it you wanted through practical training. But before rushing morning, it must be torts. Wednesday after- to be? Even if you can’t do it today, don’t give off to expand your knowledge by building on noon was property. Friday was ethics. Class up on doing it tomorrow. Hold onto your that law school foundation, you must evalu- topics were a given, so you knew what to dreams. Build toward them. ate that foundation and shed some bad habits expect. Later, for the bar exam, you prepared At the end of the day, as in all things, it is you probably picked up along the way. for the dreaded crossover questions, which not the hand you are dealt but how you play One vocal critic of the bad practices fos- involved more than one area of law at a time. it. Not where you went to law school but what tered by law school is Ninth Circuit Chief Beyond law school, every day is a crossover you do with that degree. Not what your first job Judge Alex Kozinski, who recently quipped, day. Real world legal problems aren’t con- is but where you choose to make your mark. “Every year I hire as law clerks some of the fined to a single subject. You must canvass the There are good days and bad days in the best and brightest law students in the coun- entire spectrum of conceivably relevant topic practice of law—tedium and excitement, chal- try, and spend a year wringing out of them all areas in every case and revisit that analysis as lenge and disappointment. But more than the wrong-headed ideas their law professors the case progresses. three decades after graduating from law taught them.”1 Or as Jedi Master Yoda said to PROCEDURE IS CRITICAL. The abridged school, I am still in love with the law—in Luke Skywalker in The Empire Strikes Back, casebook opinions you studied probably lacked love with the way we think and analyze, the “You must unlearn what you have learned.” procedural details (except, of course, in your push and pull, with the struggle to create a Here’s what you really need to rethink civil procedure class), and thus, all procedural legal system that commands and deserves from your law student days. aspects could be safely ignored while you dili- respect, and most of all, with the feeling of READ ENTIRE OPINIONS. Students spend gently pondered the substantive law. After law doing well by my client. Years ago, I reviewed great amounts of time reading appellate opin- school, you’ll quickly learn that procedure per- a law review article submitted by a distin- ions in law school. Actually, what students meates everything. The procedural basis for a guished professor, the gist of which was “the read in all those casebooks are excerpts from matter supplies the critical context for all other lawyer as friend.” How silly and simplistic, I appellate opinions, edited to focus on a par- issues. You may have thought that procedure— thought at the time, and with the arrogance ticular facet of a decision. Only rarely do they simply a bunch of complicated and random of a third-year law student, I rejected it. I read a full opinion. Typically, the edited-for- rules—is not “real law,” but, in fact, mastering was wrong. teaching version omitted, at the very least, fac- procedure is not optional. Though woefully People may hate lawyers, but when they tual and procedural details, and may have undervalued in law school—which tends to are in trouble, they want the best. Clients put omitted additional analysis and concurring or emphasize the big picture and deep think- their businesses, their lives, their careers, and dissenting opinions. The habit of reading only ing—procedure and evidence are often as their families in your hands. It is a great part of an opinion can be very dangerous. To important as substantive law. responsibility but also an act of trust and paraphrase Professor Emeritus Gideon Kanner STRONG WRITING WINS CASES. Speak- respect. We go out into the world and do our of Loyola Law School, “Every opinion carries ing of undervalued topics and skills, you best by them, standing by our clients whether within it the seeds of its own destruction.” If probably had only one legal research and they are right or wrong, serving as their advocates but not their judges. To be that kind of Benjamin G. Shatz, a certified appellate specialist, cochairs the Appellate friend is a noble act, a blessing that our edu- Practice Group at Manatt, Phelps & Phillips, LLP, and is immediate past chair of the Los Angeles County Bar Association’s Appellate Courts Committee. cation allows us to offer. ❖

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WALTER R. ANDERSON writing class in law school. It may have been the facts drive the outcome. How valuable are ungraded or worth only a couple credits or the facts and their presentation? Associate INSURANCE taught by an unappreciated adjunct professor. Justice Robert S. Thompson, who served on SERVICES, The course probably was required but not the California Court of Appeal from 1968 to respected as were “real, hardcore” classes such 1979, revealed that he almost always decided INC. as constitutional law or tax. Gauging by how how a case would be resolved after reading has specialized law schools treat them, one would think legal the statement of facts and that reading the research and writing are minor, pesky parts of legal discussion rarely changed his mind. exclusively in lawyering. Believing that is a huge mistake. In Accordingly, appellate attorney Ellis J. Horvitz placing lawyer fact, cases are won and client goals achieved— is known for making this offer to adversaries: and that is the point, isn’t it?—by written “If I can write the statement of facts in your professional advocacy (with oral advocacy a distant second). brief, you can write the legal arguments in liability If you haven’t started already, it’s time to hit mine.” You may not have gone to law school the books again. Surely, you remember Bryan to become a detective or a storyteller, but insurance for Garner, editor of the Black’s Law Dictionary that without ability in those roles, your mastery the past 30 your auntie gave you when you started law over the law may be meaningless. school. Get your hands on some of his prac- NEVER CRY “UNPREPARED.” The more years. titioner books, such as The Winning Brief or popular law school professors probably pro- Making Your Case, or similar books by other vided you with a chance to respond “pass” Stop by our new authors, such as Ross Guberman’s Point Made, when called on in class. There is no such lux- website today and to jumpstart your legal education to the next ury in court. In the real world, pleading unpre- let us get started on level. pared is an invitation to professional ridicule a free, no hassle FORGET EXAM-STYLE WRITING. Most of and malpractice. Nor can you make up an quote for you. your law school writing probably consisted of answer on the spot to see how it plays out. timed exams on single subjects. Because the From now on, adopt the Boy Scout motto: Be clock was ticking, you took a lot of approved prepared. And when the question you can’t shortcuts, such as using silly abbreviations and answer eventually does come your way, politely www. frantically bounding from one issue to another, ask the court for an opportunity to quickly cramming in various discussion points. The supply a supplemental written response. more you wrote, the more issues you could hit No doubt many other law school teachings Lawyers-Insurance.com and the more exam credits you could earn. Your suffer in real-world practice: focus was to display your accumulated knowl- • Law school often focuses on federal law and Or give us a call: edge. There was no time for editing. That hur- practice, yet most litigation is done in the 949-955-7950 ried and scattered form of writing served a state courts. particular purpose. Consider it history. • Law school emphasizes trial and appellate Successful legal writing in the real world practice over more common activities, such as Now with two offices requires conciseness, directness, multiple discovery, client counseling, and settlement. to better serve you: rounds of editing, and as much engaging style • Law school emphasizes case law analysis, as you can muster. Clients and courts want yet practice requires much, if not more, analy- problem solving, not recitation of information. sis of rules and statutes. Law school exam answers must rank among • Law school teaches legal research through the most mind-numbing screeds on earth. the use of digests, online searches, and case But outside law school, if you want your law, but lawyers more often use treatises and papers to be read and understood, you must practice guides. marshal facts to tell compelling tales, find • Law school frequently presents concepts just the right—and right amount of—sup- through twisty, jerky, circuitous routes of porting legal authority, and persuade the developing common law, yet real practice 1834 Bath Street reader to agree with you—all using the fewest prizes pinpoint directness. Santa Barbara, CA possible words. And while literary style helps To return to the wise words of Master 93101 capture your reader’s interest, don’t mistake Yoda: “Much to learn, you still have.” 805.682.8885 aggressiveness or sarcasm for flair. Cases are Ditching some bad law school habits will won on the facts and the law, not on who con- forge a clearer path for you. ❖ 895 Dove Street #300 cocts the cleverest put-down. Newport Beach, CA THE FACTS MATTER—A LOT. In law 1 Book jacket blurb by Alex Kozinski, U.S. Court of Appeals 92660 school, the focus, naturally, was on the law. judge, in WALTER OLSON, SCHOOLS FOR MISRULE: LEGAL 949.955.7950 ACADEMIA AND AN OVERLAWYERED AMERICA (Cato 2011);

www.Lawyers-Insurance.com www.Lawyers-Insurance.com Procedure and writing skills received short see also Alex Kozinski, In Praise of Moot Court—Not!, 97 shrift. So, too, did facts. Yet in the real world, COLUMBIA L. REV. 178 (Jan. 1997).

8 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:06 PM Page 9

STARTING OUT

By Art Jalandoni and Jennifer A. Grady

Networking Tips for the New Associate

etworking in any profession is not only Association are specifically designed to assist or potential client out to lunch, or writing an vital to career growth but also critical new lawyers in obtaining a vast network of article for the firm’s newsletter. If your firm to professional success. In today’s peer attorneys and legal professionals with offers seminars to potential or current clients, N increasingly competitive market, new which to share ideas and referrals. Beyond volunteer to be a speaker. Doing so will show associates face an even greater challenge than providing access to potential clients, joining initiative and will provide you the opportu- the mere billable hour requirement. They an organization or volunteering can increase nity to become further acquainted with par- must also build their professional network. the chances of being selected for a job. ticular legal issues in your area of specialty. Do Proactively leveraging contacts from law school, business, and social and professional events can help elevate an attorney’s career to the next level by providing personal satisfac- The actions you take to build your network tion and financial success. Although networking seems intimidating now will undoubtedly help your career in the at first, the foundation of a strong professional network can easily begin with friends, family, future when you are looking for new clients, and former law school classmates and professors. Once people in this inner circle become aware of your areas of expertise, they can keep a new job, or to make partner. you in mind for future referrals. Following up with holiday cards, occasional e-mails, or Managing partners and hiring directors often not be afraid to take on new responsibilities electronic status updates on social network- choose one attorney over similarly qualified and ask your supervisor for support. ing sites can keep you fresh in their mind. applicants when the attorney is involved in Finally, never underestimate the power of Technology also provides an easy way to volunteer organizations or legal clinics, which your reputation. Performing excellent work begin making a name for yourself in your shows the candidate’s conscientiousness and and being cordial to opposing counsel or co- field. Joining alumni and bar association community involvement. counsel can also result in future referrals or groups on LinkedIn can provide a list of Infinite networking possibilities exist in even job opportunities. If you prove yourself potential contacts with whom you may have Los Angeles through local and ethnic bar to be an invaluable member of the team on something in common, and if you have a associations, chambers of commerce, in-house your cases, other attorneys in the community mutual friend or colleague, that person can counsel associations, and trade associations. will notice your skills and professionalism in make an introduction on your behalf through Less obvious, but no less important, are social court, at mediation, or even through more the site. In addition, specialty-specific outlets such as Meetup.com, which allows routine case tasks such as discovery. groups—such as the Asbestos Professionals its members to join groups of people with Laying the foundation for business devel- Network or the Products Liability Defense whom they already share enthusiasm for com- opment early on will provide immense ben- group—provide access to a virtual network of mon interests and activities. Networking can efits for your career. Networking takes time, attorneys, experts in the field, and even legal be a little less intimidating when discussing commitment, and the persistence to follow recruiters who are looking to place attorneys your profession over happy hour, a group-led through and maintain lasting professional in that particular specialty. hike, political committees, or a team sport. relationships. Even if the results do not Another way to expand your network is Oftentimes, networking opportunities become immediately apparent, the actions to become a member of organizations, bar already exist at your current firm. Simple you take to build your network now will associations, and nonprofits. Groups such as ways to show your commitment to your job undoubtedly help your career in the future the Los Angeles County Bar Association include becoming a member of the market- when you are looking for new clients, a new Barristers and the Los Angeles Young Lawyers ing committee, volunteering to take a current job, or to make partner. ❖

Art Jalandoni is a principal at Prestige Legal Search. Jennifer A. Grady practices employment law, products liability, and government entity defense at Hurrell Cantrall LLP in Los Angeles.

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 9 1 SurvivalGuide2011_master.qxp 8/24/11 3:06 PM Page 10

STARTINGSECTION NAMEOUT

By FelixByline Woo

TheHEADLINE Challenges of Time Management for Associates

t any law firm, chances are you will uct that had been completed for the same spending additional time that you do not bill hear associates asking, “When do you partners who had assigned a project to me) to make sure that memoranda, briefs, or dis- want this?” As a junior associate, I asked and gave me a good time estimate. covery responses are as good as they can be A it more times than I can remember, and • Look for templates, especially from past will reap benefits. Partners will remember now I hear it whenever I assign work to asso- cases involving the lawyer who has given you the quality of the work product, not necessar- ciates. While the question may be ubiqui- the assignment. Save your time and the client’s ily how much time you spent on it. If the work tous, the answers could not be more varied. money by avoiding reinvention of the wheel. product is not up to par, even efficient billing Just how long should that project take? I When you receive a research assignment or will be viewed as a waste of the client’s money. often mentor associates, with tongue in cheek, some drafting activity, ask other associates if • Asking “when?” is not the same as “how that there is an inverse relationship between they have any similar research or templates, or long?” Do not be afraid to ask how much the number of years a lawyer has been prac- go to the firm’s document management system time the assigning lawyer thinks a project ticing and the accuracy with which he or she and look for examples. This is especially true should take—or sometimes more important, will make that estimate. Many senior lawyers with motions and discovery. Even better, find how much time the lawyer wants you to have forgotten their earlier years and set unre- similar documents created by or for your spend. With research projects, most assigning alistic deadlines for completing an assign- assigning partner. lawyers will say, “Spend ‘x’ number of hours, ment, whether it is research or a draft of a • Factor in time for your learning. Your first and then come back to me with the results.” brief. Understandably, associates compound few major projects will take longer than you If you get the infamous “this should only take this problem by failing to push back. think. This is true even if you receive guidance. a couple of hours,” always say, “I’ll spend two There is no better time than the beginning It is especially true with motions and briefs. or three hours on this, and let you know of your career to develop effective time-man- Some lawyers are naturally talented writers what I have come up with before spending agement skills and set reasonable expecta- and can whip up a brief with little time and more time on it.” If the time spent is insuffi- tions with your colleagues about your ability effort. The rest of us take more time. Start early, cient to complete the project, you implicitly to do the highest-quality work. Putting off work late, and plan ahead. educate the assigning lawyer as to how much this part of your development or taking short • Early in your career, do not fixate on billable time the project should take. cuts will inevitably cause issues in the future. hours. This piece of advice may be controver- • Avoid memos, unless you are asked to pre- As senior lawyers become more familiar with sial—firms always tell associates to bill all their pare one. Do not hand in a lengthy memo that your work, rather than being assigned the time and let partners write off what they feel is plods through the facts and holdings of a discrete, one-off project, you will be staffed on excessive. Firms also say this practice allows litany of cases when all that is needed is a cita- cases or transactions as part of a team. As the partners to realize that their time expectations tion that can be dropped into a letter or brief. junior member of the team, you will be respon- may not have been well founded. You must If you are asked to research a point, once you sible for many of the most time-consuming communicate the amount of time you spend on find the best case or cases to support a par- activities, often with deadlines that compete a project to the assigning lawyer, but do not let ticular point, drop the summarized holdings with work for other assigning lawyers. the billable hours be an impediment to creat- and salient quotes into an e-mail message Learning to manage the time you spend on ing the best possible work product. and send it to the assigning lawyer. He or projects and the expectations of more senior The time you spend on an assignment she will appreciate that you saved time by get- lawyers is critical to your success. and the time you bill are different. Learn to do ting the information quickly. • As a new associate, I found that more sen- the best, most thorough work that you pos- • Do not be afraid to go back to an assigning ior associates or junior partners were my best sibly can, and be prepared not to bill some of lawyer empty-handed. Not all research assign- resource within the firm for learning how your time when you fill out your time sheets. ments yield the desired result. Treat the assign- long a particular assignment should take (as Early in your career—when you are establish- ment like a high school math exam, and be well as how to go about completing it). They ing work relationships around the office and prepared to show your work. Explain what provided me with templates (often work prod- building trust with more senior lawyers— sources, databases, and treatises you research-

Felix Woo is a partner in the Los Angeles office of SNR Denton, where he practices general commercial litigation.

10 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:33 PM Page 11

STARTING OUT

ed, what types of cases and authorities you By Ben FagerlindByline examined, and what search strings you used. Be prepared to offer your analysis as to how the research you performed advances the client’s position, even if the cases offer no

direct support. You will earn higher regard ADVERTISER SPONSORED FEATURE from your colleagues if you leave them with more than the perception that you did not find anything useful. AchievingHeadline Financial Balance • Learn to say “yes, but.” Most associates do not want to say no when asked to take on new projects or cases. Associates may fear reject- s you well know, this is one of the tough- Once you establish that relationship, you ing a more senior lawyer or worry that if they est times to start a legal career. It is likely will thank yourself later when you have some reject an assignment they will not be asked that as a new lawyer, you are starting type of banking emergency or a need that again. Associates can often find themselves A your career already in debt. The amount goes beyond planning advice. Such a future accepting more work than they can handle. of debt that many new lawyers accrue in law need can include buying a home, obtaining a This problem is compounded by failing to ade- school is growing each year as the cost of edu- line of credit, or taking out a partnership quately budget how much time it will take to cation continues to rise. When I speak to new loan. Working with someone who knows complete the projects. As a result, deadlines attorneys about their finances, the ability to you, understands the nuances of your busi- are missed, work product declines, all-nighters manage debt is their most common concern. ness, and, most importantly, has the ability to are pulled, and work-related stress is exacer- Further, given the recent economic reces- provide some flexibility and customization bated; your career suffers. sion and consolidations in the legal industry, to your needs is vitally important. “Yes, but” is simply a statement that you just having a full-time job is an achievement. Ultimately, now that the economy is on its would be happy to help on a case, or work There are thousands of experienced lawyers way back on track, so should you try to get on a project, but you have other deadlines to out of work. When law firms hire, they tend on track with respect to your personal (or which you are already committed, and if the to be selectively looking to bring on experi- family) financial plan. If you make basic finan- new assigning lawyer is willing to accept enced lawyers—often those who can bring or cial planning a priority today, the more com- those other demands, then the two of you can generate business—at entry level price tags. plicated planning will be easier for you to work out the details. For this approach to In addition, the top clients of these law firms implement down the road. Here are some work, you have to be honest about those are leveraging their relationships by looking important steps to follow to help establish other projects. You may not want someone for ways to cut expenses. your financial health. else to get the assignment, but at least with This triple whammy of increasing debt • Create a balance sheet (all your assets and “yes, but,” the partner makes that decision loads, job insecurity, and lower salaries can be liabilities) and a personal cash flow statement rather than you. devastating to your bottom line. That is why, in an electronic spreadsheet. The balance • Be proactive when faced with demands as a new lawyer, it is vital that you begin to sheet should detail all your liabilities (with cor- from competing assigning lawyers. Firms tell map your financial future as early in your responding interest rates on loans, credit associates that they should let partners hash career as possible. There are some simple but cards, and so on) and, in a separate column, out the associates’ competing deadlines and important steps you can take. all your assets (cash, real estate, stocks/bonds, workload demands. This advice is sound, but personal items of value, etc.). When you sub- it is easier given than followed. While partners Find a Professional for Advice tract the value of your liabilities from your or assigning lawyers certainly should talk, do If you do not already have a relationship with assets, the resulting number will be your net not leave the communication up to them. a financial adviser or banker, an easy way to worth. Do not be alarmed if the number is Reasonably or not, some of them will start would be for you to find out where your negative; it is not uncommon to have a neg- inevitably harbor some resentment that you law firm banks and ask for an introduction to ative net worth as a new lawyer. In the balance put them in that situation. Instead, be the banker or “relationship manager” who is sheet’s cash flow statement, detail every assertive, and map out deadlines and commu- assigned to your firm. monthly recurring expense that you have in nicate expectations. It is far more productive If you still want other options, do not hes- your budget (rent or mortgage payment, car to have discussions about workload before you itate to ask your family, colleagues, or friends— payments, insurance, student loan payments, fall behind than it is to tell an assigning lawyer including people with whom they work— dry cleaning, utilities, your $4 daily lattes, a day or two before an expected draft or work for an introduction to a financial professional. meals out, groceries, entertainment expenses, product is due that you are too busy. You will find that if people are pleased with and so on—everything!). Then, deduct this Being proactive and managing expecta- their financial adviser or banker, they will monthly expense total from your net after-tax tions about how much work you can do, and jump at the chance to refer him or her. income (your take-home pay that reaches how long it will take you to do it, will go a

long way toward establishing the working Ben Fagerlind is a senior private banker at City National Bank in Century foundation you need to succeed in any firm City. or practice. ❖

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 11 1 SurvivalGuide2011_master.qxp8/24/113:06PMPage12

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your bank account). This resulting cash flow, amount of your minimum payment due) and if doing so fits your risk tolerance. Discuss which should be a positive number, is your potential tax deductibility. your 401k asset allocation with your monthly savings. This savings, in turn, should • Contribute to your firm’s 401k plan or to investment adviser. go to your rainy day fund. If you have a neg- your IRA account regularly, but only to the If you do not have the time, ability, or ative balance on your monthly cash flow, then extent that you can afford it. Paying your interest in doing your own tax returns, you it is time to trim the expenses by getting rid monthly obligations must take precedence, should hire a CPA. Consider it likely that in of unnecessary expenses and by reducing but try to force yourself to put away money the long run, an accounting professional’s your overhead fixed costs (such as rent, insur- every month. Your retirement contributions services will be more efficient, reliable, and ance, entertainment, etc.). Once a positive reduce your taxable income and allow helpful to you than your own (especially in the monthly cash flow is established, the next your investments to grow, tax-deferred, for event of an IRS audit). As a new professional, tip applies. decades to come. The best way to do this hiring professionals to do the things that will • Set up a recurring monthly transfer to a sep- is to set up pretax automatic withdrawals help make your already busy life easier can arate bank account. Open a separate bank from your regular paycheck and automatic make a lot of sense. Your banker or financial account and try to save a portion of your withdrawals from your bank account that go adviser can offer referrals. monthly net income and your bonuses (or at into your IRA contributions. In a way, this is Finally, consider basic estate planning— least a portion of them). It is wise to use this forced savings, as the money goes toward especially if you are married, have children, account to pay down your debt. Pay the your retirement before it even reaches your or own real estate. Basic estate plans and higher interest debt first. Your salary should bank account. insurance policies are affordable and will start go toward your recurring monthly obliga- If your firm matches a portion of your you down the path of responsible planning for tions, but what is left over should go to pay- 401k contribution, that is free money to your heirs in the event of an accident, disabil- ing off debt and savings. Once you have you, so take advantage! Consider it a raise in ity, sickness, or untimely death. Your banker enough cash saved up, begin an investment your overall compensation. Also, be sure to or financial adviser will have referrals for strategy that fits your risk tolerance. Be sure invest in your 401k with each pay period. As estate planners and insurance providers. to start your investment conversations with a much as possible, buy during dips in the Although these initial steps may seem licensed investment professional at your bank financial markets. This allows you to lower basic, you would be surprised how many of or investment management firm. your cost basis with your investments. As a your peers do not actually follow through. By • If you do not know where to start, simply new attorney, you have time on your side, so implementing these steps, you will be far find out the name of the person with whom investing more aggressively can make sense, more prepared than most. ❖ your law firm does its banking business and ask to be introduced to that banker or financial Orthopedic–Spinal Expert Witness adviser. If you feel that you connect well with GRAHAM A. PURCELL, MD, INC. that person, seek his or her advice. Lawyers are Assistant Clinical Professor of Orthopedic Surgery, UCLA not expected to be financial planners or bankers, and likewise, bankers should not Twenty-four years plaintiff & defense experience look to represent themselves in legal matters. So hire a professional who not only is a good personality fit for you but also someone who has experience in providing financial advice. ’ • Make it a goal to save up an emergency fund that can cover at least six months of your ’ , CA Attorney monthly expenses. If you cannot quite get General’s Office there, work to save enough for three months. You just never know when you might need to dip into your emergency savings. • Always pay off your most expensive debt first. This is especially true for credit cards and personal loans. Your law school loans should American Board of Orthopedic Surgery-Board Certified Orthopedic Surgeon be consolidated as much as you can at the lowest interest rates possible. If you still have relatively high rates, consider your options. Fellow, American Academy of Orthopedic Surgeons You may be able to consolidate your student loans into a home equity line of credit, for example. This applies only if you are a homeowner and have available equity to borrow. This type of consolidation may allow for interest-only payments, which may www.gpurcellmd.com email: [email protected] enhance your cash flow (by reducing the ORTHOPEDIC SPINAL SURGEON

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 13 1 SurvivalGuide2011_master.qxp 8/24/11 3:06 PM Page 14

STARTING OUT

By W. Brian Ahern

ADVERTISER SPONSORED FEATURE Questions and Answers about Professional Liability Insurance

rofessional liability insurance is an im- limit of liability. If your firm dissolves, merges, a description of your client intake methods. If portant part of a lawyer’s practice man- or is not renewed by its current carrier and the your firm has trust accounts, use “evergreen” agement. While having liability insur- new carrier is unwilling to provide full prior retainer agreements, which require that a min- P ance is not mandatory in California, it is acts or retroactive coverage to the date pro- imum balance be maintained within the trust. important to understand the benefits of having vided under the expiring policy, then you Note what seminars your firm attorneys attend insurance and the risks of not being insured. should consider an ERP. that contribute to their practice and risk man- WHAT DOES PROFESSIONAL LIABILITY WHAT CLAIMS SHOULD BE REPORTED? agement skills. Be diligent about your accounts INSURANCE COVER? A professional liabil- Report all claims. Failure to report could receivable. Underwriters don’t want to see that ity policy covers an attorney’s defense costs result in denial of coverage. Your duty to your clients owe you significant amounts of and indemnity resulting from a claim of pro- report is especially important when filling money or that suits for fees are a norm. fessional negligence and personal injury from out an application or renewal form. If you dis- If your firm offers services out of the norm, professional services. close a potential claim on an application to a provide a detailed explanation of the services. WHAT ARE THE TYPES OF LEGAL SERV- new insurer, they will specifically exclude Be sure that the skills you state on your insur- ICES THAT ARE COVERED UNDER THE the claim. By concurrently reporting the ance application mirror those on your Web POLICY? Covered services may include pro- potential claim to the firm’s current carrier, site. Web site text can be held as misrepresen- viding legal advice for a client, acting as a this claim will be covered under the expiring tation in a malpractice claim, so accurately and mediator, arbitrator, notary public or a title policy. thoroughly state what you do. agent, as an administrator, conservator, execu- HOW DOES MY FIRM GO ABOUT GET- ARE THERE SPECIFIC INSURANCE tor, guardian, trustee, receiver or in any sim- TING A POLICY? Working with an insurance REQUIREMENTS FOR LLPS? California Code ilar fiduciary capacity, provided that such serv- brokerage that has access to multiple insur- Section 16956 requires all law firms that are ices are performed in connection with and ance carriers can help you determine what LLPs and have five or fewer licensed attorneys incidental to an attorney’s practice of law. type of coverage you need. A brokerage will to hold an insurance policy and/or policies Additionally, acting as a member of a bar be able to compare rates as well as help you amounting to no less than the total annual association or other legal/ lawyer related ethics, through the application process. Obtaining aggregate limit of liability of $1 million. For peer review, accreditation, licensing board, insurance shouldn’t be just about getting the LLPs with more than five legal professionals, committee, or organization is covered. Acting best price. You must also consider the carrier’s an additional $100,000 of insurance must be as an author also may be covered, but only for rating and its financial size, policy form, the obtained for each additional licensed profes- the publication or presentation of research reputation of the insurance company, and sional. The maximum amount of insurance is papers or similar work, and only if the fees how it handles claims. not required to exceed $7.5 million. generated annually from all such work are less ARE THERE ANY STRATEGIES THAT CAN MUST MY FIRM DISCLOSE THAT WE than $25,000. HELP ENSURE COST SAVINGS WHILE DO NOT HAVE INSURANCE? Rule 3-410 of WHAT TYPES OF PERSONAL INJURY OBTAINING THE BEST COVERAGE AVAIL- the California Rules of Professional Conduct CAN BE COVERED? Personal injury encom- ABLE? Positioning your practice in a way that requires that attorneys who are not covered passes malicious prosecution, abuse of appeals to insurance underwriters is key to by professional liability insurance must so process, defamation, false imprisonment, and maximizing savings. When applying for pro- inform clients. Additionally, if an attorney wrongful eviction. fessional liability insurance, indicate which has had insurance but elects to drop his or her WHAT IS ERP COVERAGE AND SHOULD attorneys are full time, part time, or of coun- malpractice coverage, clients must be advised MY FIRM HAVE IT? Extended Reporting sel. Indicating the number of hours an attor- in writing within 30 days of the termination Periods (ERPs) or “tail” provisions give a law ney bills can save you from being charged a full of the insurance coverage. The rule applies to firm the right to report claims after a policy rate for attorneys working part time. any legal matter that will require four hours has expired or been canceled. ERPs do not, Underwriters want to see that your firm is well or more of legal representation but does not however, increase or reinstate the policy’s managed. Provide the insurance company with apply to emergency legal services. ❖

W. Brian Ahern, RPLU, is president/CEO of Ahern Insurance Brokerage, one of the largest independently owned insurance brokerages specializing in the insurance needs of law firms.

14 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:06 PM Page 15

SHAPINGSECTION YOURNAME CAREER

By David ReinertByline

WhatHEADLINE Joining an Association Can Do for You

omething you hear at any law school Angeles and across California, numerous vol- it comes to bar associations, do not limit graduation ceremony is, “Welcome to untary bar associations offer practitioners the yourself to what you have already experi- the practice of law.” The practice of law opportunity to find commonality by practice enced. For example, the Los Angeles County S is not limited to writing memos or area, geography, ethnicity, and other criteria. Bar Association has hundreds of programs motions or contracts for a specific side or Just as law school unites people who are and lots of people who want to help you be client. It includes becoming a member of a studying law, these associations unite people a better lawyer. profession, with all the attendant rights and responsibilities of membership. I believe that getting involved in a bar organization is an Bar associations provide the opportunity to integral part of practicing law. Law school offers an orderly predictabil- ity that, for many, ends with graduation. We expand our craft. They expose us to people and our friends took the same classes in the same buildings and spent hours working we never thought we would meet, and they toward the day that we would all finally practice. Once we graduated, passed the bar, and began our lives as lawyers, things changed. allow us to build friendships. Now, classmates are practicing on their own, often in what can appear to be a line of work who are practicing law. Regardless of practice Being a LACBA member and leader myself that is absolutely distinct from our own. Some area, bar associations provide the opportunity makes me a bit biased, but when you are go to court and argue for their side, while oth- to expand our craft. They expose us to peo- looking at California organizations, the ers have no interest in ever seeing the inside ple we never thought we would meet, and Association is a great place to start. It is the of a courtroom. If you picked 50 bar members they allow us to build friendships, relation- largest metropolitan voluntary bar associa- at random, you could likely find 25 different ships, and know-how. Associations foster relation, with sections covering virtually all prac- areas of practice. tionships among new attorneys and veteran tice areas, and it comes with a long list of affil- When the practice of law proves to be and former attorneys, many of whom are iated associations. The Association’s members more varied than its study, it is helpful to truly impressive people. are spread wide, geographically and demo- think about what we share. We share duties For example, MCLE courses are often graphically, and thus it is likely that you will to society by virtue of our membership in taught by people you would not otherwise find other members near you. If you want to the state bar. Unless we are lucky enough to meet. But you should not join a bar associa- succeed in a particular practice area, there is be part of a large organization that includes tion merely to get MCLE credit, because your likely to be a LACBA section for the practice many different areas of law and provides its membership is good for more than that. Join area in which you work or want to work. own culture, however, it can be easy to lose a bar association to learn to be a better lawyer. It is easy for us to become consumed by the feeling of place that was available in law When you find a group that fits you well, our day-to-day duties as lawyers and lose the school. And even if we practice law with a you will have access to years of insight into the ability to look beyond our project or assign- large institution, we are exposed only to a legal world, and you will find people who ear- ment. It’s just as easy to rely too much on the relatively small set of lawyers who, like us, lier made the same mistakes you have made Internet and become lax about developing are working within the confines of our (or now will not make) and who have suc- professional relationships. I believe that by employment. ceeded in the practice of law. looking only to the task of the day, you are not To address this issue, I suggest a way to Many associations have law school chap- truly practicing law. Join the Association. Get participate in the practice of law that goes ters. At any given school you can find a vari- involved. You will learn what it means to beyond one’s employment setting. In Los ety of ethnic and local bars. However, when practice law in every sense of that term. ❖

David Reinert is the immediate past president of the Los Angeles County Bar Association Barristers Section and a Los Angeles County deputy district attorney.

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SECTIONSHAPING NAME YOUR CAREER

By Michael A. GeibelsonByline

HEADLINEHow to Work with Senior Partners

guarantee that only those with egos big- have our central services person order them that negatively impacts a case. But you’re a ger than their offices revel in being referred for me special. They have the gel ink I like that lawyer. Figure it out. Then talk to me about to as senior partners. The title implies smears on glossy paper but makes my signa- it. In other words, don’t come into my office I that the attorney is experienced, is a rain- ture and atrocious handwriting look more (and interrupt me booking my next tee time) maker, or is a thought leader. But truth be important. Don’t touch my pens. Bring two with a problem that you’ve spent two weeks told, being a senior partner just means you’re pens of your own to every meeting. One will unsuccessfully researching and expect me to old. Of course, “old” is a relative term. I run out when you need it most. have a flash of genius. Come to me with a thought my fourth grade teacher, Mrs. UNDERSTAND WHAT YOU ARE SUP- range of possible solutions based upon legal Tjomsland, was old. She was in her late twen- POSEDTODO. My time is more valuable, or authority, or at least reason. Whether I like it ties at the time. at least more expensive, than yours. And the or not, you did the research and are in a bet- In a law office, “old” just means someone more time I spend with you, the less time I ter position than I to say whether there is is separated by a gap of a generation or expe- spend with my kids and playing golf. Don’t support for any of the solutions you’ve created rience. The gap entitles the person with the waste my time making me repeat an assign- or others I concoct while you’re sitting there. substantially lower bar number to rule your ment. When you leave my office, know what BE CREATIVE, TOAPOINT. You do not world—quietly and benevolently, or with a you’re supposed to do. And know how and work on an assembly line. You have the true loud voice and an iron fist. While some would when I expect it to be done. Understand the privilege of working on different cases that humorously compare the relationship of part- client’s deadlines for review as well. If we present unique legal and factual problems. ner and associate to that of dog and master, don’t meet the client’s deadlines, we won’t You’re smart and curious. And your tasks are the relationship of a younger attorney with a have the opportunity to do so in the future. not ends in themselves but are parts of larger senior partner is much more symbiotic. So, when we’re talking about the assign- endeavors for your clients’ cases and causes. Senior partners rely on you. You make ment, the first time is the time to nail it down. Your luxury of time thinking about issues them profitable. You make it possible for If there is any question in your mind about may span substantially longer periods than them to be out of the office to develop more what you’re supposed to be doing, write an mine. So if you’re doing your job, you’ll be business, to play golf, and to do whatever outline first and send it to me to look at. If I thinking creatively about the next steps in the else they want to do instead of meeting and don’t respond and you follow the outline, case. Some of your ideas we can laugh about conferring about the impropriety of the objec- my bad. together. Others may be case dispositive. tions to Request for Production number 143. Of course your research and writing may Don’t let the former prevent you from disclos- So, assuming you want to become a sen- reveal a different path to pursue. Talk to me ing the latter. I want to know your ideas. ior partner one day, or at least develop expe- about it before spending much time that I Some senior partners will view any idea that rience before hanging out a shingle of your don’t think is valuable (e.g., because I didn’t is not their own as a bad idea. Play to it in own, consider the following in approaching think of it). your presentation if necessary. And I want to senior partners. I’ll write it in the first person BE A PROBLEM SOLVER. Everyone gets have your ideas presented in a way that for ease—and, hopefully, humor. stumped from time to time. And not every the- doesn’t cost the client much, if anything. In BRINGAPADANDPENS. When you ory is a path to summary judgment or victory other words, be deliberate about the tan- come to my office, bring a pad and pens. I at trial. But if we (the royal “we”) want to gents you pursue before we collectively go have pearls of wisdom to impart. They fall make an argument and have no support for down a path. from the sky like rain when you’re in my it, I can’t exactly say, “Gosh, Judge, I couldn’t RESEARCH OFF THE INTERNET. It’s office. Now I know that’s mixing metaphors, find any case authority. And I can’t think of any very easy to look for electronic gadgets and but don’t point it out when senior partners mix ground in logic, reason, or public policy to restaurant reviews on the Internet, where metaphors. Whenever we talk, have a pad to support my argument. But I think you should your search results are driven by the key- catch them. find in my client’s favor anyway.” That’s a words you use and algorithms you’ll never see. This is my desk. These are my pens. I problem. So too is anything else you uncover But I use less scrutiny when I am looking for

Michael A. Geibelson is a business trial lawyer with Robins, Kaplan, Miller & Ciresi L.L.P., where he handles unfair competition, trade secret, and class actions. He was the 2010-11 chair of the Los Angeles Lawyer Editorial Board.

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SHAPING YOUR CAREER

the best gluten-free pizza than when I am By Mhare O. MouradianByline looking for case authority. Thanks to the Internet, keywords have become the worst form of blinders, often pre- venting people from analyzing the hierarchy of results the keyword searches create. And they most certainly divert thinking about analogies In New Attorneys We Trust: to other situations that might exist in the cases. How to Make In-House Counsel Happy Old lawyers and I were trained with books. Headline If I find something in a book that you missed in your keyword searching, tighten up your resume. In other words, when you hit a stum- n today’s economic paradigm, businesses person allows you to work together closely bling block, go to the books (codes, digests, not only are more closely scrutinizing their and enables in-house counsel to get to know etc.) or their electronic equivalent. expenditures but are also particularly con- and trust you. WRITE LIKE ME. I care about the way I am I scious of their legal fees. Nevertheless, PREPARE BEFORE YOU DIAL. Speaking perceived by judges and juries. I care about this can work to your advantage as a new to in-house counsel as a new attorney can be my reputation and credibility. And when you outside attorney. Since you bill at a lower rate nerve-racking. However, being prepared before sign something that is submitted to a client or than the partners in your firm, you may be the you place your phone call will go a long way the court, you’re doing it for a client I repre- one who performs the bulk of the work. But in calming your nerves. Unless it is an emer- sent. My name is at the top. So write like me. fees are not the sole issue in keeping in-house gency, resist the impulse to immediately return You will not know how to do this on day counsel happy. The most important factor is calls. First make sure you have your supervi- one. You will have to learn how to do it. It may establishing trust. sor’s authority to contact counsel. Don’t wait be demoralizing for the first several assign- DO YOUR HOMEWORK. The phrase “Do hours or days before dialing, but do research ments you see covered in red ink (or other- your homework!” may foster memories of the issue quickly and construct an outline of wise all marked up). Sentence structures will your parents’ nagging, but knowing your your points and any additional questions you be changed. Adjectives and adverbs will be client is vital to providing the best represen- may have. By being prepared before you dial, changed or deleted. Ad hominem attacks will tation and will, in turn, keep in-house coun- your return call will go much more smoothly. vanish. A court’s “findings” will be correctly sel pleased about retaining your services. INVOLVE IN-HOUSE COUNSEL. Whether recharacterized as holdings. Countless books and literature address the you are a litigation attorney or a transactional Either get used to it or get a new job. And importance of understanding your client’s attorney, you can involve in-house counsel remember, the more redlining I have to do, the business, and with the advent of the Internet with your case in a number of different ways. less golf I play. The less golf I play, the less and other sources of social media, research- Who will know your client’s business better happy I am. The less happy I am, the less I care ing the type of business your client conducts than in-house counsel? about whether your pride of authorship comes does not pose an exceptionally difficult task. In litigation cases, in-house counsel through in the final work product, and the Your research will impress in-house counsel, can help you figure out what types of ques- more redlining I do. It’s a vicious cycle. and if your study happens to reveal a few tions should demand your focus during MORE WORK IS A COMPLIMENT. While gaps in your comprehension, then a discus- depositions, or whose depositions you or praise is nice, don’t expect it. Don’t even sion with in-house counsel will help build your partner should take. When you are expect an evaluation. If you get more work, their confidence in your ability to properly responding to discovery, first draft a response consider it praise. Here’s where senior lawyers handle the case. containing all the information you have, observe the generation gap most. In recent DEVELOP A RELATIONSHIP. Where pos- and then ask in-house counsel to fill in any years, little leagues have given out large tro- sible, always make personal contact. Typically, gaps. Once you are done, set up a meeting phies to every player. Everyone is a winner, the your supervisor will inform in-house counsel with in-house counsel to review the drafts philosophy goes. Not so for lawyers of the past that you are working on the matter with them. together in person or telephonically. generations. Not everyone gets praise. And not However, before contacting in-house counsel, Invite in-house counsel to attend deposi- everyone keeps their job. make sure that your supervisor has given you tions or mediations; if a specific issue arises There is a time and a place for evalua- the authority to do so. Then set up a face-to- of which you may not be aware—such as tions—some frequent, some annual, and some face meeting, preferably at their office. Do prior lawsuits in which the company took a not at all. Don’t ask the senior partner for an not wait for the senior partner to make the specific defense (especially important when evaluation of your work at an inappropriate formal introduction. dealing with a national company)—in-house time. If you’re not getting enough evaluation, Because everyone’s time is valuable, the counsel can help make sure you do not devi- express an interest in it, and set a lunch to talk meeting can be short and concise depending ate from prior positions. about it—away from the office. on the circumstances. Conducting business in If you are working on a dispositive motion If you do senior partners the favor of understanding and fulfilling their needs and respect- Mhare O. Mouradian is a senior associate in the Los Angeles office of ing their time, they will do you the favor of Murchison & Cumming, LLP, where he focuses his practice in the areas of complex civil litigation and business litigation. practice development. If they don’t, leave. ❖

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such as a summary judgment, forward it to SHAPING YOUR CAREER in-house counsel in advance of your deadline By David SchniderByline to allow for their input. In transactional matters, find out what other types of agreements your client has engaged in and what terms are Weighing the Benefits of Being an Since you bill at a HeadlineIn-House Counsel lower rate than the

o you remember Kermit the Frog sitting and corporate and transactional experience is partners in your firm, in a boat, strumming a banjo, singing likely to be useful to a company. But in-house “The Rainbow Connection”? It’s an lawyers have very diverse backgrounds, and you may be the one D inspirational tune about finding an idyl- many come from litigation or any number of lic place. Long after my first hearing of “The other disciplines. Some practice areas do not who performs the Rainbow Connection,” I began my legal career lend themselves well to transitioning in house. as an associate in a large litigation firm. I Few companies need a criminal lawyer or learned that the legal profession has its own family law practitioner on staff. But a surpris- bulk of the work. version of the rainbow connection. Firm ingly large number of practice areas can lead lawyers whispered of a pleasant place where to an in-house career. Businesses deal with But fees are not the lawyers work in harmony with other people corporate, intellectual property, product liabil- and don’t spend their days scrambling to ity, real estate, insurance, compliance, and meet deadlines and scrapping with oppos- other issues regularly, so lawyers who have sole issue in keeping counsel, where lawyers don’t have to sac- practiced in those areas may have an in-house rifice their personal lives to earn their keep. role. There is no one field that creates the best ing in-house counsel They called this happy place “in house.” path to a career in house, but gaining experi- No one really knew how to get there. We ence with issues that are the most likely to happy. The most all knew lawyers who had, but each one of affect businesses on a regular basis does them had a different story of how to arrive. It increase the chance that a candidate will fit a wasn’t like the Emerald City, to which there business’s needs when a position opens up. important factor is was a yellow brick road where you just put Perhaps it should be no surprise that a one foot in front of another. Then, one day, my good way to position yourself for an in-house establishing trust. time came. There wasn’t much warning. There job is also the best way to secure your position were no signs leading to the end. Like a spirit at a firm. Do quality work that motivates your abandoning its earthly shackles, I left the superiors to work with you again. Develop rela- world of litigation and passed through the tionships with coworkers and clients. Learn most essential. pearly gates of corporate counsel. your field well, and get your name out there PROVIDE DETAILED DESCRIPTIONS The truth is, most in-house counsel started as an expert. When companies go looking for WHEN YOU BILL. More often than not, their careers at law firms. Companies gener- counsel, they want people who they believe can in-house counsel will review the legal bills ally look for experienced lawyers to assist resolve their challenges and work with their from outside counsel. Unfortunately, for most them with specific needs, so they are less employees. An outside attorney with whom new attorneys, adequately describing billable likely to recruit straight from law school. they have already established a relationship tasks can be difficult. After all, most law Instead, most companies are looking for may qualify, especially if the attorney has the schools do not provide a class on billing. The lawyers with existing experience in particular resume, qualifications, and personality to get most important rule to remember is to use the fields who can help deal with the immediate the job done. The more successful you are as five Ws—who, what, when, where, and why. problems the business is facing. Of course, outside counsel, the more likely that some For example, if you bill for review of medical there are lawyers who begin their careers in company will want you as in-house counsel. records, state the reason why you conducted house, often with internships at larger com- However, being a good lawyer is not the review (such as “in preparation of damages panies. But the majority spend at least a few enough to increase the likelihood of finding section of mediation brief”). years at a firm before moving in house. an in-house position. A recent survey by the Follow these key recommendations, and You may expect that particular practice Association of Corporate Counsel revealed you’ll be on your way to keeping in-house areas are a better path to in-house positions, that the majority of in-house lawyers found counsel happy. Although your primary obliga-

tion is always to your firm, you’ll make valu- David Schnider is general counsel for Leg Avenue, Inc., a leading able connections that you may need in the distributor of costumes and apparel. future. ❖

18 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:06 PM Page 19

their position through networking or busi- tyranny of the billable hour, however, are in-house lawyers rarely bring any portable ness connections rather than by responding to only half the story. To make the transition in business with them. Going back to a firm a job listing.1 I made the transition by devel- house, most firm lawyers have to take a pay essentially means starting over from scratch oping a relationship as outside counsel for a cut. Most attorneys can earn more working for trying to build a client base. In addition, client. Once the client became large enough to a firm. Leaving a firm to go in house also because in-house lawyers usually have a less need in-house counsel, I was the first choice. means accepting a significant change in work diverse practice than firm lawyers, they are The best way to position yourself for an in- environment. Given the variety of in-house more likely to be pigeonholed by the indus- house position is to develop relationships with positions, it is hard to generalize about that try or type of work they handled in house. An businesspeople by reliably giving them useful change. A lawyer going into a smaller com- employment lawyer coming from a firm has advice as outside counsel. Attending network- pany may find that he or she is the only likely handled a variety of issues for different ing events and social events with in-house counsel can also help develop relationships that can lead to being considered when an appropriate in-house opportunity opens. The more successful you are as outside Pluses and Minuses counsel, the more likely that some company Do you really want to go in house? On the sur- face, in-house positions appear very attractive. will want you as in-house counsel. But know what you are getting into, because they are not for everyone. There are certainly some benefits to most in-house positions. For many attorneys, the first benefit of being lawyer at the company. At a firm, an attorney types of businesses and brings all that expe- an in-house counsel that comes to mind is may get used to spending time with other rience to any interview. By contrast, an in- billing. In a firm setting, the pressure to bill lawyers, and it can be a shock to be sur- house employment lawyer’s experience is lim- is so constant that many lawyers end up rounded by people who don’t get jokes about ited to the types of issues handled for a single thinking in six-minute increments. Most in- the rule of perpetuity. Even in a large company company in a single industry. house positions do not require billing, and with many lawyers, the legal team is rarely the The greatest challenge in-house lawyers even those that do are rarely as rigorous about most important part of the company. In a face is explaining their value. At a law firm, recording time. As a result, performance for firm, every person, every piece of equipment, the lawyers are the producers. They bill the in-house lawyers is far more likely to be meas- and every outside vendor is there to serve hours that bring in the money that pays for ured by quality of work and value to the busi- the lawyers. In a company, on the other hand, everyone and everything at the firm. In house, ness than sheer hours billed. lawyers may be seen as a necessary evil. the situation is the opposite. Lawyers are usu- In part as a result of the lack of billable Furthermore, while working for a single ally a very large cost that seems to do noth- hours, most in-house jobs require less work, client allows an in-house attorney to become ing but eat away at profits. In many ways, it even if they are not 9-to-5 jobs. Corporate deeply involved in the business, that means is difficult to justify to a businessperson why counsel still put in long hours that can include far less variety. Firm lawyers with many clients that cost is worthwhile. When a salesperson travel and weekends. When the company are able to handle a wider assortment of mat- makes a big sale, measurable amounts of needs you, you’re expected to be there, but the ters. The in-house counsel must focus on the money roll into the company. When a lawyer job is typically less intense than one at a firm, specific challenges of only one business. writes a contract so airtight that it is unchal- where 80-hour weeks are not uncommon. Another downside of representing a single lengeable, nothing happens. Even worse, Further, even though the hours of an in- client is that your fortunes are tied to that com- doing a good job may mean telling business- house position may not be as demanding as pany. To some extent, the same could be said people that they can’t do what they want they are at a firm, an in-house attorney, sim- about firm lawyers, whose firm could go out because of risk to the company. Saying no may ply by virtue of representing a single client, may of business. But lawyers at firms are generally be the right way to protect the client, but it can generally become much more deeply involved at far less risk of losing their jobs. When law make businesspeople feel that the legal depart- in the client’s business. It is not unusual for in- firms tighten their belts, they fire staff first. ment is merely an obstacle to growth. house counsel to transition into other senior Companies tightening their belts see lawyers In short, while there are plenty of advan- business positions. Even entry-level corpo- as staff, and expensive staff at that. Further- tages to being an in-house counsel, there are rate counsel have a closer relationship with more, firm lawyers who have a book of busi- just as many disadvantages. Being an in-house their business counterparts than outside coun- ness can continue to represent clients regard- attorney is not a one-size-fits-all dream job. sel. It is rewarding to feel directly involved in less of what may happen to the firm or to one While outside counsel may hear “The Rainbow helping to build a business. Businesspeople client. If one client cuts legal work or goes Connection” in their heads when thinking of sometimes see the familiarity that attorneys under, attorneys at a firm still have others to being in house, corporate counsel may hear have with the law as almost magical and trust rely on for business. When you have only one “It Ain’t Easy Being Green.” ❖ our reading of documents, even when those client, its demise is the end of your job. documents are in plain English. It is also harder to transition out of an in- 1 ASSOCIATION OF CORPORATE COUNSEL, THE 2011 IN HOUSE Professional respect and an end to the house position. Unlike a law firm partner, COUNSEL COMPENSATION SURVEY (2011).

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SECTIONSHAPING NAME YOUR CAREER

By Adam BylineJ. Post

HEADLINECareer Transitions

or some of you, your first job may mir- one of the many niches of the law may a firefighter, or a musician, then merely find- ror those of days gone by, when associ- very well pay off. Many new lawyers realize ing a different legal field probably will not ates stayed at their first firm for their that the remedy to finding themselves at the resolve your current dissatisfaction with your F entire career. However, the majority of wrong firm or area of the law is to transfer to initial job. new practitioners will become part of the a new firm or to start their own practice. You will not be the first to leave the prac- increasing trend of lawyers changing legal These options allow a new lawyer or a lawyer tice of law altogether. Go follow your dreams, fields or even careers. Many paths can lead to with a few years’ experience to avoid com- but there is one caveat. You must take the req- a fulfilling career in the law, but lawyers often pletely abandoning the practice of law by uisite time and self-reflection to make sure you may question where their individual path shifting gears. want to enter a field unrelated to law, because will lead. Ask yourself if your dissatisfaction with if you wish to return to the practice of law at In these rough economic times, with your current legal job is based on the firm cul- a law firm someday, a few hiring partners hordes of new lawyers competing not only for ture where you are employed or on your area may look at your venture as a black mark on the top firm jobs but also for all legal jobs, new of practice. This question will allow you to your resume. However, this will be of little lawyers need to maintain perspective—which determine how to focus your efforts. importance if you do not ever see yourself can be especially hard when student loans If you are considering a change in your returning to the billable hour and the firm become due. practice area, one of the best ways to do this career track. In today’s job market, some new attor- is to contact your law school alumni office and Fight the feeling that you might have neys—who as students arrived at law school find local experienced attorneys who practice wasted your time and money by going to law dreaming of becoming an entertainment in your newly targeted area of practice. school if you eventually decide that you want lawyer—find themselves now accepting For example, one lawyer friend of mine to change careers. You can still apply your legal jobs at large insurance defense firms. In fact, practiced civil litigation for several years before training to your new position. Remember, many new lawyers are not lucky enough to deciding that he was interested in estate plan- the analytical and decision-making skills that begin in the practice area of their choice. The ning and tax law. He slowly started to speak you gained by studying the law apply to a key is to not lose hope if you find yourself in to other attorneys who practiced in this field, broad range of fields, including banking, busi- a position that does not fit your long-term taking them out for lunch or coffee. This led ness, and government. career goals. to his researching LL.M. degrees and subse- For example, a law school friend of mine While searching for that first position, one quently enrolling at one of the nation’s top joined the U.S. Army as an officer, and another option available to lawyers who find them- LL.M. taxation programs. colleague has applied to work for the Federal selves in career flux is to perform temporary Now, instead of being an unhappy civil Bureau of Investigation. Both of them view legal contract work. Many legal staffing com- litigation associate, he has found happiness in their time spent in law school and in the legal panies list short-term and long-term projects practicing estate planning at a small firm. His profession as invaluable assets that they can that require the assistance of temporary journey to find his place in the law took him bring to their new careers. lawyers. Even document review for a legal just a few years of introspection and retrain- After incurring law school debt, many staffing company can be a good way to buy ing to prepare for a new practice area. Just attorneys who decide to leave the law don’t time to network with other lawyers while still think what he would have missed if he had know where to begin. The next step can seem bringing in an income. chosen to simply abandon the practice of overwhelming. Talk with people you know If you want to stay in the law and change law completely. who are in careers that interest you. Don’t your practice area, consider the idea of dis- A re-exploration of your legal interests think that your professional path in the law covering your own way of moving ahead. may not be applicable if you have certain or in another field needs to mirror that of For many new lawyers who realize that they goals that a career as a lawyer just may not ful- your law school colleagues. As lawyers, our are unhappy in their initial legal job, spend- fill. If you have had an epiphany that you career paths are as different and varied as our ing time and effort to find a better fit within really want to become a professional painter, individual personalities. ❖

Adam J. Post is a criminal defense attorney and a former deputy district attorney who began practicing law in California in 2004 after graduating from UC Davis School of Law.

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SHAPING YOUR CAREER

By Hernán Vera

Dispelling the Common Myths about Careers in Public Interest Law

o you want to create public schools that and skills. Years at a firm can provide an that the public interest profession, while eth- offer every child a chance to excel? Are attorney with an intensive, world-class edu- ically satisfying, does not require the most you eager to tackle the tough issues of cation about all levels of complex litigation. refined levels of legal analysis and skill. D poverty affecting millions of Americans? Firms also provide new attorneys with men- This is simply not true. To succeed, a good These challenges, and more, are the daily tors who can demonstrate in direct and per- public interest lawyer must be an excellent work of public interest lawyers. Despite the sonal terms what people of conscience can writer, oral advocate, negotiator, social worker, opportunities, talented would-be public inter- accomplish in a business environment. and theorist. Tackling poverty is no small est lawyers sometimes are sidetracked by com- While at a firm, however, you absolutely task. It requires an enormous amount of cre- mon misconceptions about the profession. must show a continued commitment to pub- ativity. Whether constructing novel constitu- For those of you who dream of becoming a lic interest law—either through significant tional theories to attack cuts in social services public interest lawyer, the first step is to learn pro bono work, volunteering on boards of or litigating on behalf of a single mother about the facts too often obscured by the myths sur- nonprofit organizations, or other forms of to lose her home in foreclosure, a public inter- rounding this exciting area of the law. public service. Public interest organizations est lawyer is usually fighting an uphill battle MYTH 1: PUBLIC INTEREST LAWYERS routinely receive impressive applications from not just to apply the law but often to expand SHOULD NOT BEGIN THEIR CAREERS AT lawyers working at large firms in which the current interpretations of the law. Doing this PRIVATE LAW FIRMS. Perhaps the most per- stated commitment of these lawyers to pub- with limited resources for clients with a com- sistent myth is that lawyers seeking to make lic interest law is belied most strikingly by their plex mix of legal, social, and economic prob- a career in public interest law must head lack of pro bono service during their time at lems requires the very best from any attorney. straight to a public interest organization for their firms. These applicants do not go far. The rewards of this daily work, however, their first job as lawyers. This is untrue for Seek out high-quality opportunities at are immense. Public interest attorneys rise in three reasons. your firm that complement the interests and the morning with a clearly defined sense of First, public interest opportunities are very goals you have for public interest work. If purpose, knowing they are part of a larger tough to find for new lawyers just graduated your dream is to litigate high-impact civil movement of advocates dedicated to creating from law school. Most public interest organ- rights cases, immerse yourself in complex a more equitable society. Like any attorney, izations only hire first-year lawyers if they are class actions. Take as many depositions as those of us who are public interest attorneys able to secure a fellowship—and the compe- you can, and volunteer for any cases going to want to win for our clients. We take seriously tition for these rare and coveted slots is fierce. trial. If you are interested in economic devel- the realities of poverty, unequal opportunity, Second, faced with paying back hefty stu- opment issues, seek out opportunities in the discrimination, and economic injustice. dent loans, more and more students have no transactional departments at your firm. Many MYTH 3: PUBLIC INTEREST ATTOR- choice but to spend some time at a private law of these departments can provide you with the NEYS DO NOT BRING ABOUT MAJOR firm before they are in a position to jump into corporate and tax experience that you will SOCIAL CHANGE. Many attorneys in the pri- a public interest job. That’s just a reality, and need to be an effective advocate on affordable vate sector believe that the work of public public interest employers are well aware of it. housing, redevelopment, zoning, and similar interest lawyers is limited to one-on-one rep- Finally, public interest employers, like issues. Be strategic in your workload choices. resentation of low-income clients. Because of everyone else hiring attorneys, want practition- MYTH 2: PUBLIC INTEREST WORK IS this myth, attorneys routinely ask those of us ers with experience. In fact, the halls of most LESS SOPHISTICATED THAN HIGH-END in public interest organizations, “With so public interest organizations are increasingly TRANSACTIONAL MATTERS OR CORPO- much poverty in our communities, how can filled with former private firm lawyers. That’s RATE LITIGATION. Another common mis- your attorneys make a larger impact?” how I got started as a litigator at O’Melveny conception is that public interest work is not The truth is that virtually every sophisti- & Myers LLP. Many attorneys committed to as intellectually challenging as the transactional cated legal services organization devotes sig- public interest law join firms with the inten- or litigation work performed at well-regarded nificant time and resources to addressing sys- tion of obtaining valuable litigation experience private law firms. Many outsiders assume temic issues. Impact litigation, policy advocacy,

Hernán Vera is the president and chief executive officer of Public Counsel. He also serves on the board of directors of the State Justice Institute and is one of 12 lawyer representatives of the Ninth Circuit Judicial Conference.

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and community education are among the By Blaine H. Evanson arrows that public interest attorneys have in and Vania M. Gauthreaux their quiver to attack the broader problems facing their clients. Impact litigation is a good example of how public interest organizations can improve the lives of tens of thousands of people at once. The Essential Role of New Lawyers in Public interest lawyers have been involved in statewide settlements that garnered millions of Pro Bono Work dollars in benefits for special-needs children and the disabled as well as class actions that expanded the rights of detained immigrants, students, homeowners in foreclosure, and the homeless. Likewise, public interest attorneys have been very active in sponsoring and advocating for state legislation affecting the communities that they serve. Public policy advocacy is an important part of public interest lawyering. Much of the recent legislation protecting foster children and consumers and providing affordable housing and healthcare has been passed with the on-the-ground work of public interest lawyers. MYTH 4: PUBLIC INTEREST LAWYERS LACK THE RESOURCES TO TACKLE THE BIG ISSUES. Many believe wrongly that state and federal government enforcement agencies

are the only organizations well equipped to KANEKO AMANE hold corporations and other groups account- able. While it is certainly true that most pub- egal work that attorneys perform pro banned lawyers from charging a fee.3 The lic interest organizations have lean budgets, bono publico (for the public good) is the Puritans and their ideal that all were “called this does not mean that they are powerless to foundation of our legal system. Such to serve” contributed to a strong pro bono tra- tackle major issues. The principal means L work is routinely responsible for land- dition in early America.4 allowing public interest firms to leverage enor- mark legal decisions that have established Our modern legal culture has continued mous resources is, of course, pro bono. the principles of our modern jurisprudence. this tradition of supporting pro bono repre- Virtually all of the firms from The Am Pro bono services also fill critically impor- sentation. For example, in 1974, Congress Law 100 have a keen interest in supporting tant needs by providing legal assistance to created the Legal Services Corporation, a non- pro bono litigation. Those firms that are espe- individuals facing extreme consequences. And profit that serves as the single largest provider cially active often assign large teams of part- for lawyers, performing services pro bono is of civil legal aid for the poor in America.5 ners, associates, and paralegals for complex more than just an obligation. New members The American Bar Association promotes the pro bono cases that last years. Moreover, of the bar will find that pro bono work affords idea that every attorney has a duty to render legions of attorneys—from solo practitioners important and enriching opportunities to par- services to the indigent and should aspire to to small firms to plaintiffs’ attorneys—are ticipate in litigation in ways that traditional at least 50 hours of service each year. eager to get involved by becoming cocounsel practice typically does not allow. with public interest firms. This enormous Pro bono legal representation is not a new Landmark Cases reservoir of pro bono talent, passion, and concept. Aristocrats provided free legal advice Numerous examples throughout our nation’s resources allows public interest organizations in ancient Rome.1 In medieval England, advo- history show how top lawyers have taken on to be at the forefront of efforts to address the cates were required by statute to serve the poor the most difficult cases on behalf of individ- important legal issues of our time—and is for free or face possible disbarment.2 During uals who could not afford to pay for their an amazing credit to our profession. the American colonial era, religious opposi- services. An early example is John Adams, A career in public interest law offers a vari- tion to litigation led to restrictions on the who represented the British soldiers accused ety of opportunities for creating social change. practice of law, including a Virginia statute that of perpetrating the Boston Massacre. Although Whether you find your way to public interest

work after toiling at a firm or fresh from law Blaine H. Evanson and Vania M. Gauthreaux are litigation associates in school, don’t let these myths about the profes- the Los Angeles office of Gibson, Dunn & Crutcher LLP. sion deter you from your dream. ❖

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Adams described the experience as “the most sion for the poor is the true test of civiliza- be able to take the deposition in the next case. exhausting…causes I ever tried,” he wrote tion.”15 And every day, low-income Americans Pro bono clients generally do not have that “it was…one of the most gallant, gener- face life-altering challenges such as deporta- the same demanding requirements as paying ous…and disinterested actions of my whole tion, eviction, foreclosure, unsafe housing, clients. They are usually thrilled to have legal Life, and one of the best pieces of service I ever bankruptcy, domestic violence, and child cus- representation and are willing to allow the rendered my country.”6 As a volunteer attor- tody disputes. The consequences of losing in attorneys taking their case to do some learn- ney for the American Civil Liberties Union, these matters can be disastrous, including ing on the job. As a result, newer lawyers are Clarence Darrow represented the teacher the breaking apart of families, loss of a home, able to take on far more significant roles in pro accused of teaching evolution in the 1925 serious injury, or even death. Individuals lack- bono cases than they would in other similarly Scopes “monkey trial” case.7 Chief Justice ing resources at such critical moments in their complex cases for paying clients. This allows John Roberts and Justice Ruth Bader Ginsburg lives simply cannot afford even basic legal attorneys to develop their skills and gain both engaged in significant pro bono work representation, nor can they navigate the legal experience that transfers directly to their daily before they joined the bench.8 Justice system without the aid of an attorney. matters, because clients value experience, Ginsburg, in particular, was one of the nation’s The problem is that at least 80 percent of regardless of whether the work was for a pay- leading advocates for gender equality during those who need civil legal assistance do not ing client or a pro bono client. the 1970s.9 receive any.16 One report concluded that “the The immediate need for pro bono services Many of the most fundamental legal deci- number of free legal service needs per year in is clear and present. Our legal system needs sions that have shaped American jurispru- the United States could be as high as 150 lawyers to offer pro bono representation for dence are the result of this rich tradition of pro million.”17 These are startling figures that the millions of individuals who are struggling bono representation. Indeed, constitutional should motivate every new attorney to increase through crises without any legal assistance. law casebooks are full of cases brought by pro his or her commitment to serving those in The lawyers who are willing to do so will bono attorneys. Some of these landmark U.S. need. According to a 2004 ABA survey, the benefit in several ways. In addition to fulfill- Supreme Court cases include: average number of pro bono hours per year ing a key civic responsibility, new lawyers • Miranda v. Arizona, which requires police to was 77, with 46 percent of attorneys provid- who perform pro bono work will gain expe- inform individuals of their rights before a ing 50 or more hours of pro bono service rience far more rapidly than they otherwise custodial interrogation.10 during the year.18 This level of participation would at their paying jobs. • Gideon v. Wainwright, which establishes a will need to rise substantially to even come Pro bono work is therefore not only a crit- Sixth Amendment right to counsel for serious close to filling the needs of individuals and ical societal investment. It is also important for state criminal offenses.11 families. the development of a new attorney’s career.❖ • R.A.V. v. St. Paul, which declares that con- New lawyers are in perhaps the best posi- tent-based distinctions in speech regulations tion to help close the critical gap between 1 Judith L. Maute, Changing Conceptions of Lawyers’ Pro aimed at unprotected speech violate the First the need for pro bono legal services and the Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 TUL. L. REV. 91, 97 (2002). Amendment except in limited circum- availability of lawyers to perform the work. Pro 2 Id. at 97-98. stances.12 bono work offers new lawyers critical litiga- 3 Id. at 98. • Loving v. Virginia, which abolished laws tion experience that helps them gain skills ear- 4 See id. at 100-01. 5 About LSC: What is LSC?, http://www.lsc.gov prohibiting interracial marriage.13 lier in their careers than they might otherwise /about/lsc.php (last visited Feb. 22, 2011). Pro bono attorneys were also critical in obtain from working on cases for paying 6 Ted Frier, Echoes of John Adams and the Boston Massacre, helping then-lawyer Thurgood Marshall argue clients. THEY GAVE USAREPUBLIC…, Mar. 7, 2010, http://www and win Brown v. Board of Education of Topeka, The reason for this is not a mystery. Clients .theygaveusarepublic.com/diary/5094/echoes-of-john -adams-and-the-boston-massacre (last visited Feb. 22, which struck down laws that established that spend hundreds of dollars per hour for 2011). racially segregated schools.14 their representation want experienced attor- 7 Bruce J. Ennis, ACLU: 60 Years of Volunteer Lawyering, 66 It is hard to imagine our legal system with- neys arguing motions, taking depositions, A.B.A. J. 1080, 1081 (1980). 8 See Richard A. Serrano, Roberts Donated Help to Gay out these and myriad other important prece- and examining witnesses. The learning curve Rights Case, L.A. TIMES, Aug. 4, 2005, at A1; see also Ennis, dents that simply would not exist were it not for these tasks is steep, and clients do not want supra note 7, at 1082. for attorneys who agreed to represent individ- to spend money training the associates work- 9 Ennis, supra note 7, at 1082. 10 uals who lacked the resources to pay for liti- ing on their matters. For example, clients Miranda v. Arizona, 384 U.S. 436 (1966). 11 Gideon v. Wainwright, 372 U.S. 335 (1963). gation. want associates that have been previously 12 R.A.V. v. St. Paul, 505 U.S. 377 (1992). trained on depositions in other cases to take 13 Loving v. Virginia, 388 U.S. 1 (1967). 14 The Pro Bono Crisis the depositions in their cases—and under- Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1954). 15 JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 182 (1791). Most attorneys will not have the opportunity standably so. 16 Evelyn Nieves, 80% of Poor Lack Civil Legal Aid, Study Says, to brief and argue a landmark Supreme Court What results is somewhat of a cycle for new WASH. POST, Oct. 15, 2005, at A09. case, but there are numerous areas of the law attorneys. The oral arguments and deposi- 17 See Leslie Boyle, Meeting the Demands of the Indigent Population: The Choice between Mandatory and Voluntary for which pro bono legal representation is tions are given to more senior attorneys Pro Bono Requirements, 20 GEO. J. LEGAL ETHICS 415, 417 urgent and essential. These opportunities give because the junior attorney lacks the experi- (2007). lawyers with any level of experience the ence. By missing out on the depositions that 18 ABA STANDING COMMITTEE ON PRO BONO AND PUBLIC chance to have an important impact. are passed up the seniority ladder, the junior SERVICE, SUPPORTING JUSTICE: A REPORT ON THE PRO BONO WORK OF AMERICA’S LAWYERS 13 (2005). As Samuel Johnson said, “A decent provi- attorney is denied the experience necessary to

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SHAPING YOUR CAREER

By R. J. Molligan

Assessing the Risks and Rewards of a Solo Career

ccording to the U.S. Bureau of Labor And for as little as $350 per month (a little learn a lot about how to operate a business. Statistics, about 25 percent of attorneys over an hour’s worth of work) the solo prac- In 1989, author Stephen Covey published are self-employed.1 Many solo practi- titioner can lease a virtual office with call for- a bestseller called The 7 Habits of Highly A tioners say that they prefer to be the warding and use of a conference room as Effective People.2 The habits are in harmony master of their destiny, and many clients pre- needed. However, major issues remain for with what Covey calls natural law. One of fer the reduced rates and personal treatment the would-be solo’s consideration. these laws is best illustrated by Aesop’s fable available from a solo practitioner. The big First, the solo practitioner may not fill a full of the goose and the golden eggs. firm pyramid does not suit all attorneys or book of business. Few clients are willing to pay You probably remember the story of a clients. $250 per hour forever. Landing one client for poor farmer who discovers a golden egg in the At a big firm, the lowest compensation one job certainly seems possible, but since nest of his goose. He cannot believe his good goes to those at the bottom of the pyramid and overhead is ongoing, so too must be the solo’s fortune and becomes more incredulous the the highest to the top, which is reserved for stream of income. This is especially true for solo next day when he finds another golden egg. equity partners. Most attorneys occupy the bot- personal injury lawyers who must have signif- Day after day he awakens to rush to the nest. tom. As associates climb up, their salaries icant capital to advance costs to fund litigation, He is becoming rich, and it all seems too increase. However, toward the top of the pyra- which is usually taken on contingency. good to be true. Impatient with this morning mid, compensation approaches the billable Building a client base that can sustain a law ritual of retrieving the golden egg, the farmer rate, and the firm’s profit margin diminishes. practice can be a very slow process involving decides to kill the goose and get all the eggs The more senior a lawyer becomes, the less a major commitment to networking, which at once. But when he opens the goose, he finds profit an equity partner makes from his or many lawyers consider to be beneath them. it empty. There are no golden eggs and no way her billed hours. This is why many big firm Attorneys who cannot ask for business may not to get them anymore. lawyers are let go in their 7th through 10th be candidates for solo practice. Those who can Covey suggests, “[W]ithin this fable is a years. (On the other hand, many big firms lose market themselves have myriad networking natural law, a principal—the basic definition money training new lawyers who leave after opportunities, including joining bar associa- of effectiveness. Most people see the effective- only four or five years). Given the realities of tions and committees in their areas of practice, ness from the golden egg paradigm: the more the pyramid, many attorneys who work for big joining the boards of organizations, and attend- you produce…the more effective you are. firms begin to sense, sooner or later, that they ing sponsored events. These activities are gen- But, as the story shows, true effectiveness is are just grist for the mill. This is why many erally scheduled after hours, however, and a function of two things: what is produced leave in their fourth and fifth years. Moreover, can extend a working day well into the night. (the golden eggs) and the producing asset or after a few years, many feel confident enough capacity to produce (the goose).”3 in their legal abilities to go solo. Running a Business Covey warns, “If you adopt a pattern of life A second issue is that a solo without clear pri- that focuses on golden eggs and neglects the Doing the Math orities risks creating a private hell. Most goose, you will soon be without the asset that A solo practitioner billing at $250 per hour lawyers become lawyers because they want to produces the golden eggs. On the other hand, (and working 1000 rather than 2000 hours) practice law. Lawyers often find that they if you only take care of the goose with no aim can earn a gross income of $250,000. Thus, want nothing to do with the tasks involved in toward the golden eggs, you soon won’t have a solo can gross about the same as a big firm running a business. These include case man- the wherewithal to feed yourself or the goose. lawyer while working half as much. A more agement, human resources, collecting on Effectiveness lies in the balance.…”4 ambitious solo could work 2000 instead of accounts receivable (a major time vortex), Unfortunately, balance is often woefully 1000 hours per year and gross $500,000. office administration, fixing the copy machine, lacking in the lives of solo practitioners. What is more, the solo can be his or her own and all the other basic business operations that The third and most important considera- boss, set his or her own hours, and work are necessary for a firm to thrive. Also, unless tion is the reality of the lives of many solo from home in pajamas and bunny slippers. you have an MBA, you can expect to need to practitioners. Although some no doubt work

R. J. Molligan is a solo practitioner specializing in tort and business litigation. She is also current co-chair of Solo and Small Firm Practice Committee for the Women Lawyers Association of Los Angeles and is a member of the American Board of Trial Advocates.

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contentedly in bunny slippers, more often By Thomas A. MesereauByline Jr. than not, financial stress is a big part of the equation. This can and does lead to depression, which can lead to drug and alcohol abuse and even suicide. The California Bar Journal states, “Although attorneys who practice in large firms also feel Effectively Handling High-Profile and intense pressure to…produce heavy billable hours, they usually do not struggle with the HeadlineCelebrity Cases same kind of financial pressure a sole practitioner faces. ‘A sole practitioner has to be in charge of marketing, human resources, busi- ociety, and the legal profession, are fix- utation, and freedom. It is paramount that the ness development and information technol- ated on high-profile cases. Although lawyer’s approach to the media constantly ogy at the same time he has to be an attor- the infamous O. J. Simpson case in and consistently places the client’s interest ney.…’ Faced with such pressures, some 1994-95 riveted the nation like no other ahead of the lawyer’s. 5 S succumb to the temptation to self-medicate.” previous case, high-profile and celebrity cases Trials are won in the courtroom. The In 2003, the California Legislature estab- have always had a prominent role in U.S. his- lawyer’s primary focus should be on 13 indi- lished the Lawyer Assistance Program, which tory. Lawyers who find themselves in a case viduals—the judge and the jury. If a trial is a confidential service of the California State that is generating intense media interest should lawyer forgets this cardinal fact and wastes too Bar that helps judges and lawyers with sub- proceed proactively on a number of fronts. much time on media strategy and its inevitable stance abuse and mental health concerns such First, it is essential that the lawyer not component of self-promotion, a winnable as anxiety and depression. The program’s lose focus. No matter how intense the media trial can easily be compromised. The best 2009 report states, “Consistent with a trend spotlight may be, the most important person public relations for a lawyer is a reputation for that started in 2003, 60 percent of the attor- in the courtroom is the client. Every deci- professionalism and success. Never violate neys who entered the structured recovery sion a lawyer makes should put the client’s court orders or the canons of professional component during 2009 have a mental health welfare before the lawyer’s. ethics. diagnosis [primarily depression] either singu- While I was defending actor Robert Blake Media outlets are powerful. They have an larly or in combination with a substance abuse in his homicide case, he told me that cameras enormous capacity to influence public percep- diagnosis.”6 According to the report, nearly were like a drug—and no one is immune. tion. The media’s goal is never justice. Ratings, three quarters of those who sought help for He was correct. For whatever reason, lawyers revenue, and advertising dollars are the media’s depression and substance abuse were solo have a tendency to change their countenance only concern. They will constantly look for the practitioners. In addition, the study found and alter their values when cameras loom. This entertainment value in criminal and civil cases that more than four out of five are male. is dangerous. and exploit whatever furthers their profit. Significantly, 58 percent of the participants Many of the reasons behind this phenom- It often becomes necessary for lawyers to were over the age of 50—a testament to the enon begin with societal values. On some calculate how best to “spin” their client’s posi- cumulative nature of stress.7 level, most human beings seek recognition and tion. Before a lawyer can effectively do this, he Life can be overwhelming for the solo approval—consciously and subconsciously. or she has to understand not only the client’s practitioner who must be the rainmaker, the The boundaries of this need may extend no case but also exactly who the client is. You can- office administrator, the copy maker, the hole further than one’s immediate social group, not humanize someone that you don’t under- puncher, and the person who does all the such as a school, club, athletic team, or pro- stand. Great effort must be made to study legal work. This may explain why only 25 per- fessional association. However, this desire for the facts and evidence as well as the client’s cent of the legal population is self-employed. recognition is reaching absurd heights in a cul- personal situation. Is going solo really worth it? For many solo ture that seems to have gone beyond the goal practitioners, the answer is still yes. However, of 15 minutes of fame to constant 24/7 Developing a Media Strategy this response is more typical of lawyers who celebrity. Social media—including Facebook, Lawyers tend to be more effective at master- have left big firms. Whatever your decision, YouTube, and other Web sites—are enabling ing cold evidence than understanding human- remember to be good to the goose. ❖ everyone to obtain some form of celebrity ity. Law school does not train us in compassion, status. empathy, sympathy, and human emotion. But 1 U.S. BUREAU OF LABOR STATISTICS: LAWYERS, 2010-2011 But lawyers have a unique role. When we these are often the ingredients that affect media OCCUPATIONAL OUTLOOK HANDBOOK. represent clients, we have their lives and wel- strategy the most. 2 STEPHEN COVEY, THE 7 HABITS OF HIGHLY EFFECTIVE PEOPLE: POWERFUL LESSONS IN PERSONAL CHANGE 54 (1989). fare in our hands. What we do can save or In preparing a media strategy, first create 3 Id. destroy someone’s life, financial welfare, rep- a list with two columns—positive and nega- 4 Id. 5 Nancy McCarthy, Statistics tell story of stress, addiction in Thomas A. Mesereau Jr. is a partner in the firm of Mesereau & Yu, LLP, in lives of lawyers, CAL. BAR J. (Nov. 2000), available at Century City. Mesereau has represented numerous clients in high-profile http://archive.calbar.ca.gov/calbar/2cbj/00nov/page1-1.htm. cases in California and the Deep South. Among his clients was Michael 6 LAWYER ASSISTANCE PROGRAM, 2009 ANNUAL REPORT 7 Jackson, who was acquitted on all charges in a criminal trial in 2005. (2009). 7 Id.

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tive. List the positive facts that favor the client his desire to champion the cause of children cameras in the courtroom. In the Robert Blake and then do the same for the negative ones. from violent and impoverished backgrounds. case, I favored them for the three-week pre- Identify those human qualities that will We discussed his history of helping children liminary hearing. The media’s treatment of best place the client in a positive light in the with AIDS and degenerative diseases. We also Blake had been horrific. I felt that I could media. For example, the client may have a portrayed his childlike tendencies as a key to change public opinion by attacking the pros- record of public or charitable service that his music and choreography. What the prosecution’s case and witnesses in public. As a militates against any civil or criminal charges. ecution portrayed as monstrous, we portrayed result, CourtTV’s polling registered the The client may have surmounted enormous as harmless and beneficial. biggest change in public opinion that it had obstacles in his or her personal life to obtain The goal was to reduce the prosecution’s ever recorded. Before the hearing, the polls a valued position in society. presentation to one, simple question: “Given showed that more than 80 percent of the public thought Blake was guilty. Three weeks later, the same percentage viewed him as innocent. The media overwhelmingly predicted that In the Michael Jackson case, I opposed having cameras in the courtroom. I felt that O. J. Simpson, Robert Blake, Michael television coverage would emphasize the circuslike atmosphere that already existed Jackson, and Casey Anthony would be con- around the case. I did not want potential witnesses watching what other witnesses said. I also felt that excluding cameras would victed. They were wrong. send a message to the trial judge and the public that the defense was serious, focused, Further, you must identify precisely how that Michael Jackson is a childlike person and not trying to emphasize publicity at the the media has or may target the client for with innocent explanations for his focus on the expense of the client. negative commentary. In a criminal case, the world’s children, did his behavior ever cross Fashioning a media strategy also means charge itself provides fodder for damaging the line into sex?” If the prosecution could not determining whether or not to seek a gag commentary and innuendo. Prepare a com- prove that it did, acquittal was required. This order. Gag orders preclude lawyer commen- pelling counterattack, in the form of a story. is what happened. tary on the merits of a case. In the Blake case, Experts in marketing and advertising often In the O. J. Simpson case, the defense I was against any type of gag order and felt that discuss emotional “hooks.” A hook can be lit- effectively emphasized Simpson’s charismatic, open commentary would allow me to level tle more than a theme that succinctly and larger-than-life athletic and entertainment what appeared to be an uneven playing field. powerfully associates the client’s case with career. He was portrayed as a target of dishon- It was clear that the prosecution and police had something desirable. It also can be a vehicle est and racist police officers. Because the trial repeatedly poisoned the media with negative for turning your opponent’s negative per- was televised, the defense had a daily forum information on Blake. spective about your client into a positive to emphasize these themes. They also took In the Jackson case, I favored a gag order message. advantage of the racial tension and fears of and wanted the case to be primarily tried in In the Michael Jackson case, the media police misconduct that characterized Los the courtroom. Again, I felt this would send consensus was very much against Jackson Angeles at that time. A proper media strategy a message that Jackson’s defense was going to from the beginning. The public is often more will take into account the social environment be characterized by professionalism and focus repelled by charges of child molestation than surrounding the case. rather than cheap theatrics. even murder. Because Jackson devoted an Celebrities are often targets of unscrupu- Of course, trial lawyers also can speak to enormous portion of his life to charity for lous reporting. In defending a celebrity, a the media through filed pleadings. As a result, children, my colleagues and I decided to try lawyer may want to inquire into every circum- the trial judge in the Jackson case forced sala- to turn the prosecution’s allegations into mis- stance that suggests unfair targeting. cious pleadings to be filed under seal. interpretation and misguidance. We focused The savvy lawyer also develops contacts in How one spins the media varies from case on the fact that Jackson lacked a normal child- all forms of media. If the lawyer has a repu- to case. However, lawyers should always hood because of his talent and being forced tation for integrity and professionalism, the remember that the best media spin is effective to work at an early age. While other children lawyer is more likely to be treated favorably. trial lawyering in the courtroom. American visited the playground, Jackson was rehears- If a lawyer feels that he or she should not com- juries tend to be very independent and, while ing in the studio until three in the morning. ment on a particular issue, the lawyer should not perfect, they try to be fair. He was signing contracts at the age of five. We say so. Don’t intentionally mislead media rep- Don’t get too carried away with the media. sought to use information to explain why an resentatives. Once burned, they don’t forget. The media overwhelmingly predicted that adult would construct a home like Neverland O. J. Simpson, Robert Blake, Michael Jackson, and conduct his life with an emphasis on Cameras in the Courtroom and and Casey Anthony would be convicted. They children. Gag Orders were wrong. The media also predicted an Rather than run away from Jackson’s focus In a high-profile case, the lawyer may need to acquittal or hung jury in the Scott Peterson on children, we embraced it. We emphasized decide whether or not to oppose television case. He now sits on death row. ❖

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PRACTICE BASICS

By Stuart R. Fraenkel

Beyond Liability, Damages, and Collectibility: The Importance of Vetting a Plaintiff’s Case

etting a plaintiff’s case is a very challeng- social media accounts,1 and the contact infor- This basic information should be adequate ing task and should not be taken lightly. mation for an individual who will always be to determine whether to invite the prospec- It is an ongoing process that does not able to reach the prospective client if he or she tive client for an in-person meeting. If you V end once a retainer agreement is signed. moves or changes jobs. Although it may seem determine that you cannot or will not accept The consequences of not thoroughly analyz- mundane, the identity of a contact person the matter, it is critical that you send a writing and evaluating a case can be severe. On the can be very informative. Additionally, always ten communication to the prospective client extreme, lawyers have been subject to State Bar ask the prospective client whom you should advising him or her that you are not going to proceedings and malpractice actions due to their failure to properly vet a case. Additionally, even with a detailed and methodical evalua- The applicable jury instructions will give you tion of a case, success cannot be guaranteed. However, the likelihood of success is significantly increased if a comprehensive and con- a road map to the elements of the claim and tinuing case analysis is undertaken. In addition to analyzing the big-three fac- the proof that will be required. tors—liability, damages, and collectibility— there are myriad other factors that need to be reviewed. Some of these include competency thank for sending the client to you. This infor- be taking the case. Make sure the letter advises and resources to handle the case, potential mation will let you know, among other things, the prospective client that you are rejecting the conflicts of interest, client and witness cred- if the prospective client found you on the matter, that there may be statute of limitations ibility, access to evidence, choice of law and Internet or has spoken with (and perhaps or other applicable claim issues, and that you forum, statutes of limitations, and what type was rejected by) another attorney. Always are not giving the individual any legal advice of experts may be needed. Gathering the send a nice note to any attorney or other per- regarding these prospective statutes, claims, information necessary to evaluate these factors son who recommended you as counsel, the merits of their case, or any other legal will require multiple meetings with a prospec- whether you accept the matter or not. issues. Most plaintiff’s lawyers will also advise tive client and witnesses, thorough document During your initial conversation, make prospective clients to seek other counsel as collection and examination, and meticulous sure to ask the prospective client not only soon as possible if they are still interested in legal research and investigation. about the general nature of the issue, occur- pursuing the matter. Generally, the first contact with a prospec- rence, or dispute but also what he or she It is also very prudent to have an in-per- tive client is by telephone or e-mail. This first would like you to do for him or her. It is son, face-to-face meeting with the prospective contact should be used to gather basic infor- important to find out right up front what the client prior to any written agreement. You mation about the client and the alleged claim prospective client wants from you. The are afforded not only the opportunity to begin and to determine whether there are any related prospective client may be seeking some type the process of establishing a trusting and pro- legal proceedings currently pending. You need of remedy that you are not able to assist fessional relationship but also the occasion to to gather enough information to determine with—or, more importantly, a remedy not assess the prospective client’s demeanor, cred- whether you would like to set up a face-to-face provided for in the law. Further, make sure to ibility, and his or her ability to articulate, meeting to explore the matter further and in determine the operative facts of the matter, the recall, and explain the facts of the case. Cases more detail or reject the matter. important dates relating to the issue, who are are won and lost on the prospective client’s The basic information about the prospec- the main players, who are the relevant wit- performance during a deposition or on the tive client should include his or her name, res- nesses, what documents relate to the matter, stand at trial. Skilled plaintiff’s lawyers will use idential and business addresses, telephone and any other issues or facts that you or the this meeting to query the prospective client numbers, e-mail addresses, Facebook or other prospective client feel are important. and to see how he or she will hold up under

Stuart R. Fraenkel is the cofounding partner of the Los Angeles office of Kreindler & Kreindler LLP. His practice focuses on high-end aviation, auto, trucking, motorcycle, rail, maritime, premises, products liability, personal injury and wrongful death actions, and insurance bad faith matters.

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FOOD SAFETY mild cross-examination. However, before you emotional, and physical ability that is rea- EXPERT WITNESS begin to grill the prospective client, make sonably necessary for the performance of the SERVICE & CONSULTING clear what you are attempting to do so you do services that are required.4 not upset him or her and lose the opportunity In lay terms, do you have the background, to represent a person with a valid claim. training, and experience necessary to compe- Prior to signing an engagement letter, it is tently handle the case? If you do not person- important to conduct detailed legal research ally have the expertise, you must consult on all relevant issues. Researching the appli- with, associate with, or refer the matter to cable law will help you determine what addi- an attorney who you believe is competent, and tional details and information you will need, who has the additional time, resources, and and more critically, will allow you to determine finances available to handle the case. For the applicable deadlines. Are there any statute example, many complex products liability of limitations issues? Is this a matter in which matters require hundreds of thousands of tolling of the statute may apply? Does this mat- dollars to prosecute. Further, these cases are ter require the filing of an administrative usually defended by large defense firms, which claim or a Standard Form 95?2 will staff the case with numerous lawyers, Most lawyers will focus their legal research object to everything you attempt to do, bury on generic Lexis or Westlaw searches, appli- you with motion practice, and create other cable practice guides, and law review arti- resource-consuming tasks, all in the name of cles. Seasoned trial lawyers, however, always zealously defending their clients. If you do not • Case Assessment start with the jury instructions. The applica- have the expertise, money, and staffing to ble jury instructions will give you a road map aggressively prosecute the case and handle • Foodborne Illness Review to the elements of the claim and the proof that the barrage from the defense, it is clear that • Industry Standards of will be required. It is also essential that you you should not handle the case by yourself. Performance research the applicable defenses to the claim, You will be doing a serious disservice to your • Food Allergies, Burns and choice of law issues, and forum issues. One client—and you may subject yourself to a Foreign Objects of the more relevant issues will be whether malpractice claim if things go wrong. there is jurisdiction over all potential parties. Vetting a plaintiff’s case is an ongoing • Kitchen Accidents Also, consider in what court the matter will process that must be handled with skill, com- • Health Dept. Inspection likely be venued. Is this a matter that can be petency, and care. If you need help, guid- Analysis removed to federal court? Are you licensed to ance, or advice, do not be bashful. Ask for it. practice in the specific federal district court if Not only is it the right thing to do, there are • Food Quality and Spoilage the matter is removed? many very skilled practitioners who would be ______Prior to signing up any case, it is also very happy to assist you. ❖ essential to conduct a conflicts-of-interest 35 Years Experience analysis. The California Rules of Professional 1 Social media accounts can be a valuable source of infor- Conduct are an excellent source to assist you mation about a prospective client and witnesses, and can also be very detrimental to the case, if information is Food Safety Inspections, in determining whether any such conflicts shared in this quasi-public setting. Many plaintiff attorneys Audits, Training, GMP's, HACCP, exist. For example, do you or another lawyer routinely instruct their clients to cease and desist from in your firm have a relationship with a party, engaging in all social media until after the case resolves. SOP's, Restaurants, Others advise their respective clients that they can continue witness, opposing counsel, or other entity, Manufacturers, Distributors, on the sites but to be very careful about what they post. that must be disclosed? Have you, or another 2 For example, although most personal injury or wrong- Supermarkets, Casinos and lawyer in your firm, ever represented the ful death matters are governed by a two-year statute of lim- prospective defendant? Are you, or another itations, “In an action for injury or death against a health Long Term Care. care provider based upon such person’s alleged professional lawyer in your firm, currently representing negligence, the time for the commencement of action shall another plaintiff in the same action?3 It is be three years after the date of injury or one year after the much better to determine up front whether plaintiff discovers, or through the use of reasonable dili- Jeff gence should have discovered, the injury, whichever occurs such conflicts exist and whether an informed first. In no event shall the time for commencement of Nelken written disclosure can cure them. legal action exceed three years unless tolled for any of the Once you have gathered the preliminary following: (1) upon proof of fraud, (2) intentional conceal- facts and have conducted the initial legal and ment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person 818.703.7147 other research, you need to evaluate whether of the injured person….” CODE CIV. PROC. §340.5. you have the competence to handle the mat- Additionally, claims against governmental entities have ter and the time, resources, and finances avail- varying filing deadlines and may require specific forms to be filled out, such as a Standard Form 95 preceding a able to properly prosecute the case. Performing www.Foodsafetycoach.com Federal Tort Claims Act matter. legal services competently means to apply 3 See RULES OF PROF’L CONDUCT R. 3-310, 3-320. the diligence, learning, skill, and mental, 4 See RULES OF PROF’L CONDUCT R. 3-110.

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PRACTICE BASICS

By Jeffrey D. Wolf

To Share Fee-Splitting Arrangements Is Human, to Disclose Is Divine

ee-sharing arrangements among attorneys ing arrangement.8 To the extent that there will obtained from the client, the attorney’s only can be a useful tool, providing incentives be a division of responsibility between the recourse is to obtain a quantum meruit recov- for attorneys in one discipline to refer two attorneys, that also must be disclosed.9 The ery from the other attorney.15 The quantum cases to attorneys in another. They allow client then must provide written consent to the meruit recovery is not considered a division F 10 solo attorneys to associate in larger firms that arrangement after receiving full disclosure. of fees and is not subject to the disclosure will assist or handle cases needing the financial backing or workforce made possible by a large firm. These arrangements encourage attorneys to collaborate for the benefit of the client. Without compliance with the disclosure and However, fee-sharing arrangements must be properly documented and disclosed, and attor- consent requirements, the newly associated neys must be mindful of the rules that apply. Attorneys may only share fees with other attorneys. A fee-sharing arrangement between attorney will lose the benefit of the agreed- a licensed attorney and a nonattorney is an ille- gal contract and a violation of Rule 320(A) of upon split of the fee. the California Rules of Professional Conduct.1 For example, an attorney is prohibited from The best practice is to obtain the client’s requirement of Rule 2-200.16 It involves no splitting attorney’s fees with an investigator.2 written consent to any fee-sharing arrange- apportionment of the fee and is based solely The California Supreme Court has stated that ment at the outset. However, by law, written on the reasonable value of the attorney’s serv- such a relationship between an attorney and consent need only be obtained after disclosure ices. However, the quantum meruit recovery a nonattorney would tend to encourage solic- of the arrangement and prior to the division may only be obtained from the other attorney; itation and lead to the practice of law by of the fees.11 In Mink v. Maccabee, the court of the client is not liable to pay any fees to the laypersons.3 (Interestingly, however, at least appeal concluded that an attorney complied later-retained attorney because there would be one court held that an investigator may enforce with the consent requirement by obtaining no enforceable agreement.17 an agreement with an attorney and collect consent after the conclusion of the represen- The disclosure requirements of Rule 2- his or her share of the attorney’s fees.4) tation but before the fee was split.12 That said, 200 apply when the fee is split between two Rule 2-200 of the Rules of Professional an attorney still has an obligation to keep a attorneys. However, the rule does not apply if Conduct regulates fee-sharing arrangements. client “reasonably informed” of significant the attorneys are members of the same firm. Its focus is on disclosure, and its purpose is developments in a case that could include the Rule 2-200 expressly exempts a relationship to “protect the public and promote respect for development of a fee-sharing agreement.13 between attorneys who are partners, associates, and confidence in the legal profession.”5 The Failure to comply with the requirements of or shareholders in the same firm.18 This excep- rule is intended to safeguard the client’s rights Rule 2-200 renders the fee-sharing arrange- tion does not extend to contract attorneys or and ensure the client knows how the fees are ment void and unenforceable.14 Consequently, other attorneys who work in the same suite.19 being charged.6 It addresses the concern that an attorney who is brought in to work on a case One form of fee-sharing arrangement is a the total fee might be higher because the fee in exchange for a split of the fee should ensure straight referral fee. Early ethics rules pro- is divided between two attorneys. In fact, the that the client has provided written consent to hibited these types of fees and only allowed for total fee cannot be greater than the fee would the arrangement. Without client consent, the a division of fees when there was a true divi- have been absent the fee-sharing agreement.7 attorney has no protection that he or she will sion of services to be performed. However, the To accomplish these goals, Rule 2-200(A) receive the negotiated amount of the fee. modern approach and current rules permit emphasizes that attorneys must disclose in If the attorney loses the negotiated percent referral fees regardless of whether the referring writing to the client the nature of the fee-shar- of the fee because the written consent was not attorney performs work. The rationale is that

Jeffrey D. Wolf is a partner at Heimanson & Wolf, LLP in Los Angeles, where he tries complex injury cases and represents victims of securities and financial fraud, medical malpractice, and defective products.

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a referral is many times in a client’s best inter- By Christopher T. AndersonByline est. It makes an attorney more likely to refer a case to a more competent attorney or one who is more capable of handling the large costs required by larger cases.20 Consequently, ADVERTISER SPONSORED FEATURE the current rule is that a referring attorney does not need to accept any responsibility for a Mitigating the Challenges of Managing referred matter; he or she must only ensure compliance with Rule 2-200.21 HeadlineYour Practice Fee-sharing arrangements among attorneys are commonplace. Attorneys often associate with other counsel for many reasons. An aw school did not prepare you for some tion availability guarantee (excluding planned attorney might not have the time or the of the most daunting challenges you will outages). You will never find yourself stranded resources to handle a matter. Or a case might face as a new attorney. Building your because you will always have your impor- involve an area of law that requires specific L practice can be a terrifying experience, tant records at your fingertips whether you are expertise. In most instances, the fee-splitting especially if you are doing it solo or with a mobile or at your desk. arrangement works to the benefit of the attor- small team. As you uncover these new chal- INCREASE PROFITS. While not every- neys and to the client who receives better lenges, you will soon realize something you one will readily admit it, one of the reasons legal representation because of the association didn’t learn in law school—how to run a that you work so hard is to receive a return on of the new counsel. Both attorneys should business. Don’t panic or go running for the your investment of time and energy. One of the ensure compliance with Rule 2-200. However, hills. Tools exist to keep your business run- most obvious benefits of your hard work is as a practical matter, the newly associated ning efficiently while allowing you to focus profit, which you want to maximize whenever attorney (the one without the signed retainer on what you do best—practice law. The solu- and wherever you can. To do so, you must agreement with the client) should be the most tion? A practice management tool like work efficiently and effectively and at the concerned about ensuring proper compli- LexisNexis® Firm ManagerTM. same time continue to grow your business by ance. Without compliance with the disclosure Designed specifically for independent meeting your clients’ needs. LexisNexis Firm and consent requirements, the newly associ- attorneys, the LexisNexis Firm Manager Manager allows you to run your practice any- ated attorney will lose the benefit of the application enables you to optimize your where on any mobile device, turning down- agreed-upon split of the fee. At best, the practice and also provide superior services to time into uptime. You can focus on the more attorney will be left with a quantum meruit your clients with all the features and bene- important parts of your business—practic- recovery that is usually much less than the fits you need to run your practice smoothly ing law and attracting new clients—and less agreed-upon fee division. ❖ anywhere, anytime. time managing the business. You can maxi- BE CONNECTED. Renowned for busy mize your billable hours and make the most 1 McIntosh v. Mills, 121 Cal. App. 4th 333, 343-46 (2004). schedules and hectic lifestyles, attorneys need of your time, every time, with LexisNexis 2 Hildebrand v. State Bar, 18 Cal. 2d 816 (1941). to be connected no matter where they are. Firm Manager. 3 Crawford v. State Bar, 54 Cal. 2d 659, 665 (1960). 4 Lyons v. Swope, 154 Cal. App. 2d 598 (1957). Yet, if the LexisNexis Firm Manager has addressed this STAY F O C U S E D. Your days are busy, and investigator was found to be in pari delicto, or in equal fault, by making sure all your information is avail- sometimes you need help targeting the most such as when he or she had knowledge of the illegality of able to you—anywhere, anytime. With a spe- critical tasks and appointments to handle the agreement and participated in the scheme, a court cially designed user interface for your mobile each day. LexisNexis Firm Manager offers a would likely refuse to enforce the agreement. McIntosh, 121 Cal. App. 4th 333. devices, you can access all your information variety of tools and features to help keep you 5 Chambers v. Kay, 29 Cal. 4th 142, 157 (2002). whether you are in the office or on the go. on track with centralized views and auto- 6 Huskinson & Brown, LLP v. Wolf, 32 Cal. 4th 453 With instant access to all your information, matic updates concerning your calendar and (2004). 7 CAL. R. OF PROF’L CONDUCT R. 2-200(A)(2). you no longer need to carry around piles of other matters. 8 In a class action, the fee-splitting agreement must also be paper or worry whether you have everything Fears of missing a filing deadline or a disclosed to the court. CAL. R. CT. 3.769(b). you need. court appearance are a thing of the past with 9 CAL. R. OF PROF’L CONDUCT R. 3-500. 10 CAL. R. OF PROF’L CONDUCT R. 2-200(A)(1). Running late? No problem. Your associates tools like the Case and Matter Dashboard and 11 Mink v. Maccabee, 121 Cal. App. 4th 835, 838 (2004). and staff can update and upload new docu- the Daily Digest e-mails. Don’t waste your 12 Id. ments, contacts, and appointments into most valuable asset—time—by spending it on 13 CAL. R. OF PROF’L CONDUCT R. 3-500; BUS. & PROF. CODE LexisNexis Firm Manager, and you will still determining your priorities or your next cru- §6068(m). 14 Chambers v. Kay, 29 Cal. 4th 142, 156-61 (2002). have instant access to them. LexisNexis is so cial step. Let LexisNexis Firm Manager help. 15 Huskinson & Brown, LLP v. Wolf, 32 Cal. 4th 453, 459 confident that you can rely on LexisNexis REDUCE RISK. No one understands risk (2004). Firm Manager applications anywhere, any- the way attorneys do. LexisNexis works side 16 Id. 17 Strong v. Beydoun, 166 Cal. App. 4th 1398, 1404 (2008). time, that it provides a 99.9 percent applica- by side every day with attorneys like you and 18 CAL. R. OF PROF’L CONDUCT R. 2-200(A). 19 Los Angeles County Bar Ass’n, Prof’l Responsibility & Christopher T. Anderson, previously a managing partner of an eight- Ethics Comm., Formal Op. No. 470. attorney full-service law firm, is now the product manager for the 20 Moran v. Harris, 131 Cal. App. 3d 913, 921-22 (1982). LexisNexis Firm Manager application. 21 Id.

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PRACTICE BASICS

knows what you are up against. You want a By Michael L. Cohen and Heather M. McKeonByline practice management solution that works for you from a company you can trust. The LexisNexis Firm Manager application is your product. It provides the confidential- Triggering General Liability Insurance You will soon realize HeadlineCoverage for a Third-Party Claim something you didn’t learn in law school— how to run a business. Don’t panic or go running for the hills. Tools exist to keep your business running efficiently KANEKO AMANE nsurance policies help clients hedge against request that an insurer provide a defense and while allowing you to risks, including the risk of litigation. When indemnity under a policy. The first basic rule a client is sued for bodily injuries or prop- of a tender is that it should comply with the I erty damage or other claims specifically provisions of the insurance policy. Insurance focus on what you do listed in a policy, such as malicious prosecu- policies are contracts. Before tendering the tion, the client’s insurance policy can be the claim, make sure that the parties named in the best—practice law. key to a satisfactory resolution to the case. The lawsuit are the same ones listed on the dec- policy may require the insurer to pay for the larations page of the insurance policy as an client’s defense in the case. It also may require insured or fall within the “Who Is an Insured” the insurer to pay to settle the case and avoid provision of the policy. For instance, a lawsuit ity that you and your clients need. Any data the potential that the client may be found filed against a business and its owner as an you input into LexisNexis Firm Manager liable for a judgment in excess of policy lim- individual may trigger coverage only for the will be kept private and stored in a secure its. Additionally, the plaintiff will want to business if the business is the only named environment in SAS 70 Type II attested world- review the policy to explore, among other insured and the owner does not fall within the class data centers located exclusively in the things, the assets against which it might exe- policy’s definition of who is an insured. If United States. cute a potential judgment. Therefore, whether there is any question regarding who is an LexisNexis Firm Manager never owns or an attorney is on the plaintiff side or the insured under the policy, provide information accesses your information, unlike some other defense side, it is critical to know the basics to the carrier at the time of tender explaining practice management solutions. With exclu- of what must be done to trigger coverage why all named defendants should be cov- sive features like a global conflict of interest under an insurance policy—that is, the steps ered under the insurance policy. search, LexisNexis Firm Manager has you an insured must take to obligate an insur- Most policies include provisions that covered in more ways to help minimize your ance company to fulfill its promises made in instruct the policyholder on how to make risk in every way. Have questions? Don’t be the policy. a claim. Read the policy carefully, and follow afraid to ask. Your security is the first prior- TENDERING A CLAIM. A “tender” of the the steps for notifying the company about ity of LexisNexis Firm Manager. claim to the insurer commonly refers to a the claim. Still not sure LexisNexis Firm Manager is right for you? Try it now free for 30 days at Michael L. Cohen and Heather M. McKeon, principals in Cohen McKeon http://www.myfirmmanager.com/try-it-now/ LLP, represent policyholders in insurance-related matters and plaintiffs in other civil matters. and see the difference. ❖

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 31 1 SurvivalGuide2011_master.qxp 8/24/11 3:07 PM Page 32

Submit a tender in writing to the insurance resulting in bodily injury or property damage.” defend only “if the third party complaint can company and send it by certified mail or Thus, when requesting that the insurance by no conceivable theory raise a single issue other means by which the date of delivery of company provide your client with a defense, which could bring it within the policy cover- the correspondence can be tracked and proven highlighting the accidental nature of the harm age.”8 Any doubt as to whether the facts estab- if necessary. The written request should include is important. The policy also will contain lish the existence of the defense duty must be identification of the insured or insureds mak- specified exclusions, such as the exclusion resolved in the insured’s favor.9 The duty to ing the tender; an identification of the policy for intentional acts. For a claim to be covered, defend extends to any claim in the complaint number or numbers pursuant to which the it must fall within the grant of coverage and that creates a potential for coverage, whether claim is being tendered; a request for a copy not be ruled out by any exclusion. it is true or not.10 The duty to defend attaches even if the covered claims are frivolous.11 The insurer may not decline to defend a suit merely because it is devoid of merit or because More information seldom results in a carrier the allegations are false.12 An insurer must provide the policyholder withdrawing a defense, but not providing with a defense “as long as the complaint contains language creating the potential of liability under an insurance policy...even though enough information can result in a denial of it has independent knowledge of facts not in the pleadings that establish that the claim is the duty to defend. not covered.”13 However, if an insured has independent facts or allegations that support coverage that are not in the complaint, of all relevant policies; a copy of the summons, DUTY TO DEFEND. As part of triggering such as interrogatory answers or an amended complaint, and other pertinent pleadings or insurance coverage, the insured must under- complaint, the insured may use these facts or papers relevant to the tender; an unambigu- stand the broad nature of the duty to defend, allegations to trigger coverage. The carrier ous request that the insurer accept the client’s as distinguished from the duty to indemnify. should be notified immediately upon receipt defense and indemnity in the action; a request The duty to defend is the insurance com- of any information that supports coverage, if to be notified of the claim number and pany’s obligation to defend the insured from the carrier initially refused to provide a adjuster to whom the claim is assigned; and, claims brought against the insured. If there is defense.14 if there might be a question as to coverage of a potential for coverage at the beginning of the INTENTIONAL ACTS EXCLUSION. The the claim, an explanation of why the insurance lawsuit, there is a duty to defend, even if ulti- most common reason a carrier will deny a company has a duty to defend and indemnify mately there is no duty to indemnify—i.e., to duty to defend is the intentional acts exclu- the client in this particular case. In some pay for the liability incurred by the insured, sion. Intentional acts are generally excluded instances, notification to the carrier can be up to the policy limits—at the end of the from coverage in liability policies. Although done through the insured’s insurance agent or lawsuit.1 Once tendered, an insurance com- some policies provide coverage for specific broker. The insurance agent or broker can pany must defend any claim that is potentially intentional acts such as malicious prosecution, often assist insureds in tendering the claim, or covered under the policy.2 In determining Insurance Code Section 533 prohibits indem- at a minimum can give instructions on how whether there is a duty to defend, “the insured nity for intentional acts. Therefore, at most, a to tender a claim for the specific carrier. need only show that the underlying claim liability policy provides a defense for inten- COVERED RISKS. The risks covered by an might fall within policy coverage; the insur- tional acts but not indemnity. insurance policy—the circumstances under ance company must prove that it cannot.”3 Even if the complaint alleges only inten- which an insurer will agree to accept a client’s The insurer also has an obligation to tional acts, the claim still should be tendered defense and/or indemnity in a particular defend the entire lawsuit as long as there is to the insurer. Since at least 1966—when action—will vary depending on the type of even one claim that is potentially covered— the state supreme court decided Gray, the insurance policy purchased by the client. even if other, noncovered claims predomi- leading case on this principle—the general rule Assuming the client has a general liability nate.4 Once you show that at least one claim in California is that a defense must be provided policy, the grant of coverage in a typical lia- is potentially covered, the duty to defend even for allegations of intentional conduct, bility insurance policy reads something like obligates an insurer to defend immediately.5 because there is always the potential that the this: “We will pay sums that an insured The courts have imposed a broad duty to plaintiff will be able to establish only negligent becomes legally obligated to pay as damages defend on insurers based on public policy acts.15 The court found coverage for the for bodily injury or property damage arising and not on the language of the insurance insured’s alleged assault and battery because from an occurrence to which this policy contract.6 Hence, the basic axiom of third- the insured claimed self-defense, which would applies and which is covered by the policy.” party insurance law is that “the duty to defend not be considered an intentional act. There- An “occurrence” is typically defined as “an is broader than the duty to indemnify.”7 fore, when tendering a complaint against a accident including continuous or repeated In Gray v. Zurich Insurance Company, the client in which intentional acts are alleged, you exposure to substantially the same general California Supreme Court held that an insur- must explain the negligent or accidental harmful conditions during the policy period ance company is excused from its duty to aspects of the claim.

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California law generally finds conduct to be coverage for the loss. If the insurer provides a sive or commercial general liability insurance accidental when the event leading to the injury defense subject to a reservation of rights, the policies provide, in pertinent part, that the was unintended by the insured and a matter of carrier may revoke its defense if a court deter- insurer has a duty to indemnify the insured fortuity.16 Courts look to the nature of the mines that there is no coverage or if the poten- for those sums that the insured becomes insured’s conduct, not to his or her state of tially covered claims are no longer a part of the legally obligated to pay as damages for any mind.17 As an example, a shopkeeper at clos- lawsuit against the insured. covered claim.”29 ing time might intentionally lock the storage If the insurer provides a defense without a The more information that you can provide vault but forget that he or she had sent an reservation of rights, the carrier may choose a carrier—demonstrating why the claim is employee inside to take inventory. Even though and retain the attorney who will represent the covered, or if the insurer issues a reservation the shopkeeper deliberately engaged the lock- insured because there is no conflict of interest. of rights letter, why Cumis counsel should be ing mechanism, courts have said that the con- But when an insurer reserves its rights on a appointed—the better for your client. You duct could be negligent and accidental within given issue and the outcome of that coverage may have to explain why the conduct could be the meaning of the insurance policy because it issue can be controlled by counsel retained by construed as accidental as opposed to inten- potentially arises from extrinsic causes, such as the insurer, a conflict of interest exists.22 When tional to trigger coverage. And to get Cumis the employee’s unexpected or chance distrac- that happens, the insurer must allow the counsel appointed, you may need to spell out tion, or the carelessness of the shopkeeper.18 In insured to select its own counsel pursuant to the conflict for the carrier. More information contrast, there is no coverage for a deliberate the rules set forth in Civil Code Section 2860. seldom results in a carrier withdrawing a act that is alleged to have been a sexual Based on the decision in San Diego Navy Federal defense, but not providing enough information assault—such as grabbing someone’s wrist— Credit Union v. Cumis Insurance Society, Inc.,23 can result in a denial of the duty to defend. This when the insured contends only that his or her an insured’s right to select its own counsel is will leave your client to defend himself or subjective state of mind was not intentional.19 referred to as Cumis counsel. herself in a lawsuit, which can be detrimental On occasion, an insured may be sued for Not every reservation of rights letter cre- both financially and emotionally. ❖ negligence—such as negligent hiring or neg- ates a conflict of interest requiring Cumis ligent failure to supervise—that is alleged to counsel.24 The cases require an actual conflict 1 Valentine v. Membrila Ins. Serv., Inc., 118 Cal. App. 4th have contributed to a co-insured’s intentional as opposed to a potential conflict before Cumis 462, 473 (2004). 2 Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 29 (1995). 25 act. Coverage of the negligence claims may counsel must be appointed. Civil Code 3 Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287, depend on whether the policy excludes cov- Section 2860(b) states that the existence of 300 (1993). erage for intentional acts committed by “an allegations seeking punitive damages or dam- 4 Waller, 11 Cal. 4th at 29; Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1086 (1993); Buss v. Superior insured” as opposed to a policy that excludes ages that exceed the policy limits are insuffi- Court, 16 Cal. 4th 35, 38-39 (1997). coverage for intentional acts by “the insured.” cient grounds to create a Cumis counsel issue. 5 Buss, 16 Cal. 4th at 49 (holding that “[t]o defend mean- Courts have held that “an” is the equivalent The test for an insured’s right to Cumis coun- ingfully, the insurer must defend immediately”). 6 of “any,” and therefore excludes coverage for sel is whether the resolution of the part of the Presley Homes, Inc. v. American States Ins. Co., 90 Cal. App. 4th 571, 576 (2001). all insureds, while “the insured” refers only to underlying lawsuit would dictate the cover- 7 Montrose, 6 Cal. 4th at 295. the intentional acts of a single insured and age dispute between the insured and insurer.26 8 Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 275 (1966). 9 Montrose, 6 Cal. 4th at 299-300. does not exclude coverage for negligence by DUTY TO SETTLE AND INDEMNIFY. The 10 Id. at 298. 20 additional insureds. Coverage also may second duty that is imposed on a liability 11 Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, depend on whether the policy contains a insurer is the duty to settle. An insurer must 1086 (1993). “separate insurance” clause providing, accept a reasonable settlement offer within 12 Montrose, 6 Cal. 4th at 298. 13 “This insurance applies separately to each policy limits or it might be responsible for CNA Cas. of Calif. v. Seaboard Sur. Co., 176 Cal. App. 3d 598, 606 (1986). 21 insured.” Counsel should review the policy the entire judgment against its insured, even 14 See Marie Y. v. General Star Indem. Co., 110 Cal. App. terms and relevant law as part of the tender those amounts in excess of the policy limits. 4th 928, 957 (2003). 15 process and be prepared to address this issue “The duty to settle is implied in law to pro- Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 271-76 (1966). 16 Lyons v. Fire Ins. Exch., 161 Cal. App. 4th 880 (2008). with the insurer. tect the insured from exposure to liability in 17 Id. DEFENSE UNDER A RESERVATION OF excess of coverage as a result of the insurer’s 18 Id. 19 Id. RIGHTS AND CUMIS COUNSEL. One response gamble—on which only the insured might 20 27 See, e.g., Fire Ins. Exch. v. Altieri, 235 Cal. App. 3d 1352 to a tender may be a reservation of rights. This lose.” “California authorities establish that an (1991). response is common when there is a possibil- insurer who fails to accept a reasonable set- 21 Minkler v. Safeco Ins. Co. of Am., 49 Cal. 4th 315 ity that the claimed act was intentional as tlement offer within policy limits because it (2010). 22 opposed to accidental. Because an insurer’s believes the policy does not provide coverage CIV. CODE §2860(b); San Diego Navy Fed. Credit Union v. Cumis Ins. Soc’y, Inc., 162 Cal. App. 3d 358, 364 failure to defend can result in damages that are assumes the risk that it will be held liable for (1984). not covered by the policy—for example, dam- all damages resulting from such refusal, 23 Cumis, 162 Cal. App. 3d at 364. 24 ages arising from an intentional tort, or exem- including damages in excess of applicable Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. App. 4th 999, 1006-07 (1998). 28 plary damages—insurers may defend their policy limits.” 25 Id. at 1007. insureds under a reservation of rights. A reser- Finally, the insurer assumes the duty to 26 Cumis, 162 Cal. App. 3d at 364. vation of rights informs the insured that the indemnify an insured for any judgments 27 Murphy v. Allstate Ins. Co., 17 Cal. 3d 937, 941 (1976). 28 Johansen v. California State Auto. Ass’n Inter-Ins. Bureau, insurer will provide a defense, even though the entered against that insured for damages cov- 15 Cal. 3d 9, 12 (1975). insurer questions whether there is actually ered under the policy. “Standard comprehen- 29 Buss v. Superior Court, 16 Cal. 4th 35, 45 (1997).

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PRACTICE BASICS

By Ashley Miller

ADVERTISER SPONSORED FEATURE Finding the Best Expert Online: A Direct Examination of Directories and Referral Services

t is no secret that today we can use the Perhaps an attorney is short on time or help You will notice common components Internet to find just about anything we or simply needs to explore several options among the Web sites for referral services. need. And in the legal industry, it is also before making a decision. Referral teams can They typically include a disciplines index, I the medium of choice in finding expert assist in this process. They are your initial a keyword search, an online request for witnesses. Besides seeking referrals from those point of contact and remain a dedicated, serv- an expert, accolades, and experts’ blogs. whom you know, going online is the new ice-oriented liaison throughout your case. Discipline indexes and keyword searching first step in an attorney’s search. While these groups may vary in their levels of may lead you to experts’ bios, credentials, More often than not, a search engine will service, a reputable firm will provide you— and locations served. An online request will first generate Web sites for either expert wit- its client—with an objective, quality-con- prompt you for your contact information, as ness directories or expert witness referral trolled selection of experts. The decision to well as the type of expertise needed or case services. Both can produce a positive out- retain an expert is ultimately yours. However, background. (Competitive firms generally come to your search for an expert, and both premier referral firms will practice due dili- advertise quick response times to inquiries and can offer their experts potential exposure that gence, so screening and qualifying experts is promise to adhere to your deadlines, although leads to work with attorneys—especially in the standard procedure. high-quality products and services should competitive age of the Internet. Practitioners, No two experts’ resumes are identical. A be the compelling factors.) Visit the testimo- however, should be aware of the structural dif- referral group can offer cross-disciplined, nials section on these sites. Occasionally, you ferences between the two. cohesive presentations of handpicked candi- will read praise from the referral firm’s own ONLINE DIRECTORIES. Experts who dates who can provide precisely what is experts in addition to satisfied attorneys. choose to submit their qualifications pub- needed. The diverse backgrounds of prospec- Today, expert directories and referral serv- licly often pay to do so via online expert wit- tive experts enable attorneys to compare ices alike maintain an online media edge. ness directories. Directories are practical angles, strategize, and determine the expert Blogging is becoming increasingly prevalent avenues for attorneys who presumably have best suited to shape their case. Moreover, on these Web sites as well as on the experts’ targeted exactly what they need to research referral services have an inside track to experts own sites. Experts may gain exposure and and also have the time to scroll through typ- who can recommend others. If the perfect market their skills to attorneys through this ically large databanks of experts’ information expert for your case does not yet exist in a interactive vehicle. to meet that need. Besides finding solo experts, referral pool, the group’s recruiters can use an In addition to information for attorneys, you also may come across multi-expert con- entire support system of professionals at their referral sites often reserve a section for experts sulting firms and related service providers. fingertips. First-rate firms will even do addi- or professionals seeking to apply or register as These same parties, as well as law firms, often tional recruiting for free. experts. Potential experts may learn the ben- advertise on these popular sites. When teaming with a referral group, par- efits of joining a referral service and what Well-categorized directories offer advanced ticularly regarding complex cases, provide as each registration process entails. searches via keywords, name of expert, topic many elements of your case as possible. Both online expert witness directories and of expertise, or geographic area. Once a poten- Information is key. Issues of confidentiality expert witness referral services share a com- tial match is made, connecting with the expert could limit the information that you divulge, mon goal—to help attorneys select the best is relatively simple. Directories are geared of course, but a trustworthy firm will check experts for their cases. Finding the perfect toward making experts’ information readily for conflicts and pair its product with your expert online is no easy task, but it is not as available. Many directories offer downloadable needs as seamlessly and accurately as possi- daunting as it seems. Armed with a few strate- curricula vitae, links to experts’ Web sites, ble. Like any organization with a solid foun- gic tips, your search can be as many layers and direct contact information. dation of client service, a referral firm will thick as you need: useful databanks or a com- REFERRAL SERVICES. The other viable strive to constantly keep the communication prehensive service to help you every step of solution is an expert witness referral service. lines open in every case. the way. ❖

Ashley Miller is an expert witness recruiter at ForensisGroup, Inc., a referral service that has been providing expert witnesses and consultants to the nation’s top law firms for 20 years. ForensisGroup also assists attorneys with defining the type of expert needed for simple and complex matters. The company specializes in recruiting, matching, and delivering difficult-to-find experts to serve on unique cases.

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SECTIONPRACTICE NAME BASICS

By DavidByline Nolte

ADVERTISER SPONSORED FEATURE HEADLINEHow to Succeed with Expert Witnesses

xpert witnesses are more important than expert who is too agreeable may either become IMPROVING YOUR EXPERT’S CHANCE ever. Most complicated cases do not set- too agreeable with an opponent who provides FOR SUCCESS. You and your expert should tle until after the experts have issued additional information or may not have the outline the analytical procedures to be per- E comprehensive reports or have been character strength to tell you the weaknesses formed and create a related schedule. Reach deposed. This trend will accelerate because in your position. You are better off with an agreement about how much time it will education has not kept pace with the contin- expert who can reach a conclusion thought- require, and ensure this works with other uing increase in knowledge, causing an ever- fully and hold to it under pressure. deadlines. Although seemingly basic, sched- widening gap between what the average per- • Test an expert’s ability to provide short and uling can be a problem because your oppo- son knows and what specialists know. direct answers. Experts who regularly provide nent sometimes has key records that your The selection of an expert should begin longer-than-necessary answers will get them- expert needs. Regardless of the reason for the with consideration of the candidates’ resumes. selves and your case into trouble. delay, experts cannot produce good work • Select someone who was previously success- • Select witnesses who can explain their craft instantaneously after receiving information. ful as a witness and is enthusiastic about doing to the jury. Most experts primarily work with Anticipate discovery battles for critical records it again. Serving as a witness is an unusual and highly educated, motivated peers who have and build this into your schedule. rigorous job. Many people aren’t suited to its the training necessary for their specialized Make sure your expert understands how requirements. The first time we do anything, field. These people are not on the jury. Before his or her opinions fit into the overall case we’re not likely to be good at it. The same is employing experts, test their ability to explain arguments. Communicate the time line for key true when serving as an expert witness. difficult concepts quickly in simple terms. events and their consequences. In complex lit- • Select experts who have the premier creden- • Identify people with energy and enthusiasm. igation, the expert often must address multi- tial in their field. Avoid the nearly meaning- Experts should be quick to offer an illustration, ple key dates. To avoid reworking conclu- less credentials requiring little more than an chart, or analogy to enliven technical explana- sions and flawed analyses, ensure that your application fee and a basic test that most peo- tions. Don’t presume a candidate will become expert uses data pertinent to those dates. ple pass. Also troubling are credentials given engaging and charismatic with your coaching. Well before your expert reaches final con- by using a point system to credit unrelated • Gain a general understanding of the clusions, meet to discuss how the work is experience. In contrast, most noteworthy cre- methodology that your proposed expert will progressing, including the good news and the dentials require difficult tests, lengthy expe- use. Does it appeal to common sense? Inquire not-so-good news. The expert should explain: rience requirements, and peer evaluation. whether the methodology will meet the stan- • Favorable and unfavorable facts. • Insist that the expert’s firm perform a com- dards required of the Daubert/Kumho cases in • Available testing methods to address poten- prehensive conflict check. This is particularly federal court or the applicable state standard, tial challenges. true of large expert referral firms that have which in California is Kelly/Frye. • False or weak assumptions, or other inad- multiple service offerings. Learning of a con- • Investigate the proposed expert’s writings. equate work. flict after you have committed yourself can be In some fields, being published regularly indi- • Opinions upon which reasonable experts costly. A conflict could even disqualify you. cates accepted expertise. But prior publications may differ. After qualifying under these screens, meet also are a minefield of potentially conflicting • Possible “long shots” worth investigating. with (or have an extended phone discussion positions or nuances that your opponent can Your opponent will usually discredit an with) the candidate. This meeting should pre- exploit. Most jurors will quickly grasp the expert who does not adhere to the profession’s view how the person will act in the expert role. importance of a contradictory position. analytical rigor. Insist that your expert support • Be careful when your potential expert wit- However, since they do not live in the aca- conclusions with analysis, testing, and inspec- ness agrees with your position too quickly. demic world, they will probably not care if the tion. Descriptions beginning with phrases As a better alternative, the expert should expert is publishing. If you have two other- such as “I saw,” “I heard,” and “I examined” understand the opposing party’s position and wise suitable experts, the safest course is to provide the strongest support for the conclu- thoughtfully explain why it is incorrect. An avoid the well-published one. sions. Judges and juries find summaries begin-

David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years’ experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness.

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ning with “in my opinion” or “based on my visually appealing exhibits. A superior, expe- TAKING AN EFFECTIVE DEPOSITION OF experience” less persuasive than more positive rienced trial expert should be able to prepare YOUR OPPONENT’SEXPERT. Before the phrases such as “my analysis indicates,” “the good graphics with little assistance. Experts deposition of an opponent’s expert begins, data supports,” or “the market tells us.” who prepare their own graphics provide sev- determine whether you plan to use the dep- Discuss whether there is government data eral advantages: osition for persuading your opponent to set- or studies to corroborate your position. This • The work is usually less costly since the tle or to prepare for trial. Each strategy will information can be highly credible to a judge expert already is familiar with the entire effort. involve tradeoffs. For example, if you aggres- or jury. Learned treatises or academic publi- • The graphics will be more faithful to your sively cross-examine during the deposition, cations are not as useful. They are as numer- expert’s methodology. you may get exact admissions and a better ous as the experts who prepare them. If you • The expert will be more convincing due to chance of settlement. However, you will also find a treatise to support your argument, you personal involvement with their creation. show your attacks, allowing your opponent to can probably find another by an equally qual- Help your expert avoid accidentally sup- create responses between the deposition and ified author that conflicts with your position. porting the opponent’s case. The fact that you trial. This is particularly troubling with experts, If you have several experts on the same didn’t hire an expert to address a certain sub- who presumably are required to modify their case, set up a joint meeting to discuss their ject doesn’t prevent the opponent from asking opinions as new information is learned. methodology and tentative conclusions. Many questions about that subject. Forewarn your On the other hand, if you just ask for the litigators avoid this because the meeting is sub- expert about surprise attacks, and prepare expert’s opinion and the basis for the opinion, ject to discovery. While disclosure is a risk, a him or her with related potential questions. your opponents are more likely to remain bigger problem is having your experts impeach The importance of all these issues requires unaware of their vulnerabilities. However, one another with inconsistent testimony. that you begin employment of experts early. you will also lose opportunities to obtain Avoid the temptation to ask experts to Your litigation plan should allow time 1) to valuable concessions. accept additional responsibility in areas in identify the right expert, 2) for the expert to Your preparation for your opponent’s which they are not truly qualified. Experts perform sufficient analysis—as a confiden- deposition should include a session with your who are discredited in these areas will lose tial consultant—so you will know whether the own expert, who should be able to provide credibility in the areas of their true expertise. consultant’s testimony will be helpful, and you with years’ worth of insights and under- Your expert’s work is not complete until 3) for you to alter your plan based on the con- standing. Your expert can educate you about it is supported with charts, graphs, or other sultant’s preliminary conclusions. weaknesses and flaws in the opposing posi-

There are Expert Witnesses and there are EffectiveEffective Expert Witnesses

LAWRENCE H. JACOBSON’s record of success as an expert witness in a wide range of real estate and business related court trials is without peer. Clients will tell you why. His expertise encompasses: • Standard of Care • Real Estate and Mortgage Brokerage • Custom & Usage Real Estate Transactions/Documents • Lawyer Malpractice (in real estate and business transactions)

Distinguished career in the practice of real estate law in California since 1968; Former Vice President-Legal Affairs at the California Association of Realtors; UCLA Law Review; Order of the Coif; Adjunct Professor of Law; Real Estate Broker; President, Beverly Hills Bar Association; Lecturer, CEB (Real Estate Broker Practice); California Mortgage Association; Graduate Realtors Institute, 2011 Spirit of CEB Award winner.

LAWRENCE H. JACOBSON AB, UCLA 1964, JD, UCLA School of Law 1967

Law Offices: 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 90212 Tel (310) 271-0747 | Fax (310) 271-0757 | E-mail [email protected] | www.lawrencejacobson.com

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tion as well as the jargon necessary to under- never get with questions that demand a yes- and how do the facts lead to your conclusion? stand what is being said. Your expert also or-no response, which should be limited to • What information have you relied on that may know information about your opposing areas in which you already know or wish to was provided by counsel or your client? expert that you would otherwise have diffi- clarify the expert’s conclusion and rationale. • What concerns do you have regarding your culty learning. Add questions that usually challenge conclusions? Since the deposition is your time to learn, expert witnesses. Make extensive use of sim- • Under what circumstances would you use ask plenty of questions that you would never ple follow-up questions such as “How do you a different methodology? use at trial. Most examiners make insufficient know that?” or “Why is that true?” Also ask • What alternative hypotheses could explain use of open-ended questions that force the wit- questions that elicit limitations in or con- what you observed? ness to explain what work was done and the cerns with the opposing expert’s work. • What other work would you have liked to rationale for the conclusions. Questions that Examples include: perform? start with who, what, where, when, why, and • What assumptions did you make? Use hypothetical questions to move an how will generate information that you would • What is the factual basis for this opinion, expert witness off of the established script that opposing counsel is presenting. Hypothetical questions can be used to turn an Do You Have A Case opposing expert into your witness when a different set of facts is presented. Hypothetical Involving Dogs? questions also can support the positions of your other witnesses. • aggression • breeding • temperament Reverse psychology is sometimes the best • behaviors • rescue • cruelty Specializing in way to isolate a witness. Test the limits of • training • protocols • hoarding Rottweilers and Pit Bulls how far the opposing expert will go to support the untenable. Discredit an extreme wit- — EVALUATIONS, CONSULTATION, BITE INVESTIGATIONS — ness by taunting him or her into taking posi- Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected] tions that most will see as silly. Most depositions spend too much time on www.jillkessler.com the expert’s background. Unless the expert is truly inexperienced in the relevant field(s), many background questions can be covered by asking the expert whether his or her resume or curriculum vitae is accurate. However, spend time looking for areas where the current testimony contradicts or is impeached by: • The witness’s writings. Has he or she written or testified previously with conclusions inconsistent with those taken in your case? • Authoritative works in the field, including texts that the witness uses as references or in classes taught by the witness. Get the expert to acknowledge which works are authoritative. • The witness’s testimony in other matters. Some of this can be obtained through databases that provide such information for a fee. • On whose behalf the expert usually testifies. An impartial expert can ply his or her trade on behalf of both plaintiffs and defendants. These same questions also can help your own expert prepare. Review these issues with your expert before the deposition, and allow sufficient time for your expert to perform whatever additional work is cost-justifiable to remedy the problems you uncover. Experts often make a huge difference, but serving as an expert witness is a difficult job. Selecting an experienced witness will make that challenging task much easier. ❖

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PRACTICE BASICS

By Justice Richard C. Neal (ret.) and Barbara Reeves Neal

Dos and Don’ts of Paper Discovery

or new litigators, the importance of Preparing the plan requires a beginning are free of the taint of litigation. knowing everything about “paper” dis- understanding of what proof will be needed Do focus the requests. Don’t ask for “any covery—particularly document requests to sustain claims and defenses. Some good trial and all documents that refer or relate in any way F and interrogatories—will be apparent lawyers create a first draft of their closing to [insert subject].” Code of Civil Procedure during their first days on the job. Counsel argument at the beginning of case preparation, Section 2031.030(c)(1) requires the party mak- must learn how to propound them and modifying it as the case develops. This prac- ing the request to designate the information respond to them. New attorneys also need to tice forces early and continuing considera- being sought “by specifically describing each master the practices and procedures sur- tion of exactly what must be put before a individual item or by reasonably particulariz- rounding disputed responses. By keeping a judge or jury to win—or in mediation, to ing each category.” “Any and all” requests usu- few general guidelines in mind and avoiding obtain a favorable settlement. ally do not comply with this requirement. common mistakes, practitioners can use dis- The statutory scope of discovery is very Further, the requesting party does not need “any covery efficiently and effectively. broad. A discovery request is permissible if the and all documents,” and gathering them may Discovery was not always an integral part inquiry is reasonably calculated to lead to the be burdensome. Adversaries will seize on the of American litigation. It was not known discovery of admissible evidence. The smart phrase as evidence of overbreadth, and judges under the English common law—the parent lawyer, though, wants information that is rel- and referees are likely to agree. of our system—but was invented in the United evant and reliably revelatory about case weak- For example, if lost profits are at issue, a States in the mid-twentieth century. The aspi- nesses. The lawyer wants to get that informa- typical document demand might ask for “any ration of those who created discovery was tion with minimal sifting through documents and all documents relating to plaintiff’s finan- that disclosure of information relevant to that “might lead to the discovery of admissi- cial performance for the last eight years.” claims and defenses would lead to more and ble evidence” but are not really helpful. So the Arguably, this request calls for every invoice, earlier settlements and dispositions more goal is to frame focused discovery requests that purchase order, check, statement of account, closely based on the true merits of the dispute. will yield the most useful information with the bank statement, and every accounting entry Experienced practitioners know that discov- least amount of extraneous material. in every journal and ledger. Production of all ery instead has become, in many cases, a Do consider the cost of the discovery in these items could be time-consuming, expen- source of protracted and expensive preliminary relation to the stakes in the litigation. When sive, and most likely unnecessary for the battles in litigation, often without significant making a discovery plan, selectivity is espe- requesting party’s purpose. On the other hand, advancement of the original goals. cially important if the amount in controversy annual profit and loss statements, balance Well thought out, focused, reasonable dis- is limited. Conversely, if the stakes are high, sheets, and cash flow statements—audited if covery still can achieve the benefits originally broad and deep discovery may be warranted. available—for the relevant years probably envisioned by its founders. Discovery can do will suffice. Consider making a request for this while avoiding the pitfalls of needless Document Requests “documents sufficient to accurately show delay and expense. Discovery usually begins with requests for plaintiff’s revenues and profits for the [years document production. Writings created at inserted], including profit and loss statements, Discovery Plan the time of the disputed events are the best balance sheets, and cash flow statements.” Before the first document requests, interroga- source of reliable evidence. They show the Additional relevant documents identified tories, and requests for admissions are drafted, positions of the parties before either begins to as discovery proceeds may be requested with prepare a written discovery plan. This should shade its position to enhance its arguments in new targeted requests. Have the plaintiff’s preliminarily identify the kinds of documen- a lawsuit. Remember that counsel prepare accounts payable become an issue in profits tary evidence that will be requested, the per- responses to interrogatories and requests for analysis? Send a supplemental request, or ask sons who will be deposed, and any subjects admissions. Moreover, practitioners usually a question in deposition. that can be explored effectively with interroga- prepare their clients for deposition testimony. Some lawyers defend the “any and all doc- tories and requests for admissions. By contrast, contemporaneous documents uments that refer or relate” formula as neces-

Justice Richard C. Neal (ret.) and Barbara Reeves Neal are arbitrators and mediators with JAMS in Los Angeles. Their practices focus on commercial cases and employment, class action, and construction disputes.

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sary to ensure that the opposing lawyer Do not use the phrase “discovery is con- for responding to document requests. Avoid will not omit possibly responsive materials tinuing” as part of your response. It has no litanies of objections and assert only those that from production. But remember, discovery legal meaning or purpose nor any effect other have merit and are material. Provide frank, is an honor system. A conscientious lawyer than to create an impression of evasion. The substantive answers. Forceful, direct, accurate responding to a request for “documents rea- legal obligation of the responding party is to articulation of favorable information helps sonably sufficient to accurately show” will produce the requested documents. A respond- the responding party’s case, while obfuscation produce the relevant documents. Conversely, ing party is entitled, and indeed required, to does not. Also, the rules require disclosure of a lawyer abusing his or her discovery duties supplement its responses if additional docu- unfavorable information. Sooner or later, the and withholding relevant material likely will ments are later discovered. The obligation to other side usually learns the “bad” information. not be forestalled by the breadth of an “any produce is not avoided or ameliorated by and all” documents request. reciting that “discovery is continuing.” Discovery Disputes Do keep the number of requests reasonable. Do comply with the statutory command of If you find yourself in a dispute over discov- Your adversary will be less likely to resist, and Code of Civil Procedure Section 2031.280(a). ery, your first step should be an attempt to a court, referee, or arbitrator will be less likely Documents must be produced in the order resolve the dispute informally through discus- to view the request as burdensome. that “they are kept in the usual course of sion with opposing counsel. This is the notion Do not preface your request with extensive business” or “labeled to correspond with the underlying requirements for meeting and definitions. Use succinct, plain English and categories” in the document request. conferring. rely on its clarity if a dispute arises. Do attempt to meet face-to-face with Interrogatories and Requests for opposing counsel. Be prepared to earnestly Responses Admissions discuss ways in which objections can be Responding to document requests typically is Interrogatories and requests for admissions resolved and necessary information produced a two-step process. First, you tender a writ- should be carefully, and sparingly, used. These without undue burden. For example, if one ten response confirming that the requested forms of discovery are generated by the hun- side objects to a wide-ranging request phrased documents will be produced and/or stating dreds or thousands in civil litigations, yet the as “all documents related to,” a genuine meet- objections to some categories. Second, you responses only infrequently find their way and-confer process should be the opportunity deliver the requested documents (usually before the trier of fact. The opposing lawyer to narrow that request by agreeing to identify copies rather than originals) to the other side. generally crafts the responses to provide the the subset of useful documents. Do become familiar with the statutory minimum useful information that will pass Do not rely on meet-and-confer letters. requirements for a Statement of Compliance muster if challenged by a motion to compel. The heart of the meet-and-confer process is in Full or in Part and a Statement of Inability Interrogatories may be useful in obtaining “confer.” An exchange of argumentative posi- to Comply, found in Code of Civil Procedure information that usually is not controver- tion letters without conferring is unproduc- Sections 2031.220 and 2031.230. These sial—for example, the names and contact tive. An exchange of noninflammatory let- affirm what documents will be produced and information for persons with knowledge of rel- ters can be useful, though, as a first step in explain what will not be produced and why. evant events. Contention interrogatories can meeting and conferring. Do not preface written responses with a be helpful in ferreting out the particulars of the However, do not send copies of these let- recitation of every possible objection. Un- opponent’s claims. Standard form interroga- ters to judges, referees, or arbitrators. If the fortunately, this practice has become an indus- tories developed by the California Judicial judge, referee, or arbitrator is available, do con- try standard, and written responses to docu- Council use this format. sider requesting an informal conference about ment requests routinely begin with a half to Do, though, bear in mind that interroga- the dispute before filing a full-fledged motion. a full page of objections. This refrain of boil- tories can have a negative effect. An adversary If motions are unavoidable, present the dis- erplate objections hardly ever accomplishes may retaliate by serving as many, or twice as pute in an efficient, compressed, and stream- any useful purpose. Not only that, it also kills many, as he or she received, and responding lined fashion. Judges, referees, and arbitrators trees—and creates the appearance that the to interrogatories is hard, tedious, dull work. frequently will require a joint statement in responding party is obstructionist. Further, as one of our mentors once observed, which the parties are admonished to include Assert only those objections that are real forcing your opponent to do that work may everything needed to resolve the dispute. and material. If the document requested truly have the unintended consequence of enhanc- In preparing briefs and joint statements is an attorney-client communication, by all ing his or her case preparation. in discovery disputes, do not use templates to means object. Ditto if there is some other In addition, the results of motions to com- replicate identical arguments multiple times for clear-cut ground. But don’t dilute the force of pel responses to interrogatories are frequently a series of similar disputed requests. Do group material objections by burying them in a sea unsatisfactory. The court can force an adversary together all requests raising the same issue. Set of marginal ones. to provide an answer, or supplemental answer, forth one request as an example, and list par- Do not object on the grounds that the but has little control over how useful or gen- enthetically the numbers of the other requests request is a burden before thoughtful consid- uinely responsive the answer is. Counsel can that are similar or raise the same issue. Then, eration of the validity of this objection. expend large amounts of time, effort, and make the arguments once. The judge, referee, Quantify any burden in a way that can be per- money to force supplemental interrogatory or arbitrator will be powerfully grateful, and suasively presented to the court or referee in responses that are ultimately of little value. moreover, more likely to carefully consider the form of admissible evidence. The approach for responses is the same as and thoughtfully dispose of the arguments. ❖

40 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 41

PRACTICE BASICS

By Diane E. Barry and Judge James L. Smith (ret.)

California E-Discovery Basics: Tips for the E-Competent Litigator

oday, most corporate information origi- their clients specifically, especially with regard in general, what data they have that is relevant, nates electronically, making electronic to ESI records.6 Therefore, as soon as a new where it is located, and whether there is any- discovery an integral part of discovery in matter is received, counsel should ask pointed one else who should be contacted. T virtually every case. Using e-discovery questions about litigation hold procedures If the other side comes to the early meet- entails more than just an understanding of the and, particularly, whether those procedures are ing of counsel unprepared to meet and confer technology involved. Attorneys must develop adequate to preserve relevant ESI. If no pro- meaningfully on these topics, be sure to file strategies for successfully obtaining and procedures have been set in place, or if the pro- with the court a written account of this failure ducing electronically stored information (ESI). cedures need to be more robust, this should prior to the case management conference. START EARLY. The ESI discovery obliga- be the first order of business. A litigation hold Data difficulties do not improve with time, tions of counsel and clients start earlier than should be made in writing, as failure to do so and failure to address the points made in Rule most counsel expect. Therefore, as soon as a can constitute “gross negligence,” support- 3.724 early on will increase the already high civil litigation matter comes to the desk of ing an imposition of sanctions.7 costs of discovery. If you wish to show the counsel, they should hear the ESI discovery In addition to fulfilling litigation-hold judge that the other side is not taking the dis- clock ticking. Two items should be attended tasks immediately, counsel should also begin covery seriously or is willfully refusing to meet to immediately: litigation hold and prepara- preparing for the early meeting of counsel its discovery obligations, there is no time like tion for the early meeting of counsel. and then the case management conference the case management conference to start show- Litigation hold is the process whereby a (CMC). The CMC must be held no later than ing the court the other side’s true colors and party contacts the custodians of its informa- 120 days out from the service of the com- highlighting your client’s diligence.9 tion and acts to preserve discoverable infor- plaint. California Rule of Court 3.724 requires E-DISCOVERY REQUIRES SUBSTANTIAL mation.1 There is no specific statute that that counsel meet no later than 30 calendar COOPERATION AMONG COUNSEL. Courts imposes this duty. Rather, it is the conse- days prior to the case management conference understand that the costs of ESI discovery quence of other duties owed. If parties do to discuss discovery-related items, including increase exponentially when counsel will not not preserve relevant evidence, the entire eight specifically related to ESI discovery. This cooperate. Indeed, courts appreciate when legal system will be undermined. Therefore, means that counsel must talk with their clients counsel bring their A game to the meet-and- courts hold that every party has a duty to and meet and confer with opposing counsel confer table and are helpful in solving e-dis- preserve relevant evidence if litigation or gov- to address discovery, and specifically ESI discovery problems. However, this requires sub- ernment investigation is reasonably antici- covery, within the first 90 days after service of stantial preparation. Counsel must know what pated.2 In California, the destruction of rele- the complaint to complete the early meeting ESI exists and how it can be made available. vant information once the duty to preserve 30 days before the CMC. They must know at least the basics on how to attaches is a sanctionable discovery abuse.3 Failure to adequately prepare—and come search and cull the ESI sources to find relevant The primary problem in litigation-hold to the early meeting prepared—can be con- materials and also how long that process takes. practice is that it is painfully unclear to par- strued as failure to meet and confer in good They must be prepared to bring IT personnel ties when litigation investigations are “rea- faith, which is sanctionable as discovery abuse. into the conversation who can address and sonably imminent” and preservation should To prepare adequately, courts advise that resolve systems and data issues. ESI discovery commence. For example, in some cases, courts counsel speak personally to “key players,” is an area of the law that rewards proactive have found that obligations should have core custodians including individuals who lawyering and creative problem solving. started years before parties actually began the are involved in the subject matter and create On the flip side, ESI discovery is an area preservation process.4 Litigation hold must be ESI documents as well as IT custodians who in which courts have little patience with coun- of particular concern to counsel, as litigation keep data such as e-mail servers, human sel and clients who refuse to work through the hold duties run first to counsel and only resources databases, and accounting data- data issues in an efficient manner. Courts have thereafter to clients.5 Attorneys must con- bases on behalf of the company.8 They should an impressive panoply of pressures that they sider litigation hold obligations and counsel be questioned about what data they produce can bring to bear on attorneys who appear to

Diane E. Barry is an attorney and the director of Discovery Strategy and Management, International Litigation Services. James L. Smith is a retired Orange County Superior Court judge who currently serves as a full-time arbitrator, discovery referee, and mediator with JAMS.

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be hiding the ball or otherwise holding up the The Code of Civil Procedure states that a order (or make the other side bring a motion discovery.10 Don’t be an easy target.11 producing party need not produce the same ESI to compel), and document your cost claims FORMAT MATTERS. The California Code twice.14 ESI is generally less expensive to deal with items such as written vendor estimates. ❖ of Civil Procedure permits requesting parties with than the same information in paper for- to specify the format for producing ESI.12 mat. State in your discovery demand that if the 1 See Doppes v. Bentley Motors, 2009 Cal. App. LEXIS 904, Requesting parties should ignore the “may” same information is available in both paper and at *28-31 (2009) (describing late and inadequate litigation hold effort regarding corporate e-mails). language. Always specify a format because ESI format, you want ESI rather than paper. 2 See William T. Thompson Co. v. Nutrition Corp., 593 F. there is one that will invariably work better for NEGOTIATE COST-SHARING/COST-SHIFT- Supp. 1443, 1445 (C.D. Cal. 1983); Cedars-Sinai Med. Ctr. your client and legal team. Specification of a ING OPTIONS EARLY. The Code of Civil v. Superior Court, 18 Cal. 4th 1, 12 (1998). 3 New Albertsons, Inc. v. Superior Court, 168 Cal. App. 4th reasonable format has a strategic advantage. If Procedure authorizes the producing party to 1403, 1429-30, 86 Cal. Rptr. 3d 457, 477-78 (2008) you specify a format and the opposition seek a protective order when ESI is “not reason- (Destruction of evidence after litigation commences or objects, the ensuing discussion before a court ably accessible due to undue burden or cost.”15 destruction in anticipation of discovery request would be or discovery referee usually begins with ask- If discovery is ordered, the court can require sanctionable abuses of discovery under the Code of Civil Procedure.); see Dodge, Warren, & Peters Ins. Servs., Inc. 16 ing why the responding party cannot give sharing of costs. The Code of Civil Procedure v. Riley, 105 Cal. App. 4th 1414 (2003) (upholding injunc- you what you asked for. If the other party is also provides that when data must be “trans- tion requiring party to submit computers to preservation the first to specify a format and you object, the lated,” the requesting party must pay reason- by neutral expert). 4 See, e.g., Pension Comm. of the Univ. of Montreal Pension discussion will probably begin with question- able costs. The cost shifting of translation is Plan v. Banc of America, 685 F. Supp. 2d 456 (S.D. N.Y. 2010). ing why you cannot accept what the other side different from federal practice, where the default 5 Green v. McClendon, 262 F.R.D. 284, 2009 U.S. Dist. is offering. By specifying a format, you often position is that the producing party pays. LEXIS 71860 (S.D. N.Y. 2009); Qualcomm Inc. v. Broadcom receive what you ask for. If there are problems, Under Code of Civil Procedure Section Corp., 05 Civ. 1958-B, 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008) vacated in part on other grounds, 2008 U.S. you set the starting point for negotiations. 2031.280(d)(2), a court considering “undue Dist. LEXIS 16897; In re NTL, Inc. Sec. Litig., 244 F.R.D. What format should you ask for? Know burden or costs” will look to the cost of the 179, 197-98 (S.D. N.Y. 2007) (quoting Chan v. Triple 8 where the data will go after you obtain it. For production, the probable value of the ESI in Palace, Inc., 03 Civ. 6048, 2005 WL 1925579, at *6 (S.D. N.Y. 2005)); see also Fayemi v. Hambrecht & Quist, Inc., example, if it will go into an in-house electronic question, and the overall amount at stake. Is 174 F.R.D. 319, 326 (S.D. N.Y. 1997). document review platform, then TIFFs and a the cost undue given the amount in contro- 6 Green v. McClendon, 262 F.R.D. 284, 2009 U.S. Dist. selection of metadata in platform-specific load versy and the usefulness of the target ESI? Cost LEXIS 71860 (S.D. N.Y. 2009); Qualcomm Inc., 2008 U.S. Dist. LEXIS 911; In re NTL, Inc. Sec. Litig., 244 file format are fine. If the legal team will use a alone does not prove undue burden. F.R.D. at 197-98; see also Fayemi, 174 F.R.D. at 326. sophisticated analysis tool that requires access It isn’t clear what processes are referenced 7 Pension Comm. of the Univ. of Montreal Pension Plan, to the original native ESI, ask for that. Your tech- by the term “translation.” In Toshiba v. Superior 2010 U.S. Dist. LEXIS 1839; In re Napster Inc. Copyright nology group or litigation support vendor Court,17 the court stated that the backup tapes Litig, 462 F. Supp. 2d 1060, 1070 (N.D. Cal. 2006); Doe v. Norwalk Cmty. Coll., 248 F.R.D 372 (D. Conn. 2007) should write a specification for how the data in question required translation but did not (Determining defendant’s failure to suspend destruction of should be delivered. Use the spec as Attachment explain what translation meant. As a guideline, electronic documents at any time after receiving notifica- A to your inspection demand. Better yet, pro- consider that producing ordinary ESI items tion of litigation did not satisfy good faith requirement of Federal Rule of Civil Procedure 37(f) and was at least vide it at the early meeting of counsel, and from active data sources is probably not con- grossly negligent, if not reckless, thereby justifying adverse also attach it to the formal inspection demand. sidered “translation.” However, if accessing the inference and costs.). See also National Ass’n of Radiation Responding parties should be mindful that, data requires specialized IT work, such as Survivors v. Turnage, 115 F.R.D. 543 (9th Cir. 1987). 8 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 if the other side asks for a load file for a basic, bringing it back from compressed archiving (S.D. N.Y. 2003) (Counsel should make every attempt to commercially available litigation support data- or writing scripts to search a database, it prob- speak personally with information source personnel.). base, the cost of objection is probably greater ably qualifies as translation. 9 See id.; Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 than the cost to make the load file. However, The value of these rules is that you can (S.D. N.Y. 2004). 10 See, e.g., Chen v. Dougherty, 2009 WL 1938961 (W.D. if counsel asks for a product that imposes identify potentially expensive items from the Wash. 2009) (Court refused a costs bill, stating that the lead substantial extra costs, a “reasonably usable for- discovery process early when only minimal attorney’s skills were so deficient in the area of ESI discov- mat” is not a bad standard to fall back on. costs have been expended for them. The duty ery that she could not command the fee she had requested.). 11 See Sedona Conference Cooperation Proclamation, Courts interpreting that phrase look to the to preserve this material remains, but you available at http://www.thesedonaconference.org usefulness of the data format being offered. can avoid spending costs to collect, process, /content/tsc_cooperation_proclamation. Does the proposed format degrade the search- review, analyze, produce, and present it unless 12 CODE CIV. PROC. §2031.030(a)(2). 13 See, e.g., DE Techs., Inc. v. Dell, Inc., 2007 U.S. Dist. ability of the ESI? Consider e-mails: In their the other side pays part or all of the remain- LEXIS 2769 (W.D. Va. 2007) (TIFFs alone are not a rea- original format, e-mails are fully searchable and ing production costs, or a court orders you to sonably usable format where the original media was ESI; can be sorted by field. However, if the produc- produce. Done properly, the only costs borne TIFFs plus data in a load file is reasonably usable.). 14 ing party provides only a TIFF of the e-mail, 100 percent by your client would be for CODE CIV. PROC. §2031.280(d)(2). 15 CODE CIV. PROC. §2031.060(c); CODE CIV. PROC. it cannot be searched or sorted. The TIFF is not preservation. This kind of early exclusion can §2031.280(e); Toshiba v. Superior Court, 124 Cal. App. 4th a reasonably usable format for the e-mail ESI. save 70 percent or more of the discovery costs 762 (6th Dist. 2004) (requesting party pays for “translated” But if the proposed format offers TIFFs and that might otherwise be paid for these items. data). 16 The new Code of Civil Procedure Section 2031.060(e) some fielded searchable data (such as author, Identify items for cost sharing/shifting at the on “not reasonably accessible” is based on Federal Rule of subject, or body text), even if it is not the pre- early meeting of counsel, identify them as ex- Civil Procedure 26(b)(2)(B). cise format preferred by the requesting party, cluded items in any written discovery response, 17 Toshiba v. Superior Court, 124 Cal. App. 4th 762 (6th it is probably reasonably usable.13 consider bringing a motion for a protective Dist. 2004).

42 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 43

PRACTICESECTION NAME BASICS

By Robert J. AmbrogiByline

ADVERTISER SPONSORED FEATURE Cloud-BasedHEADLINE Electronic Discovery Is in Your Future

awyers have a reputation for exerting ber of servers in any variety of locations. Big WHAT IS CLOUD COMPUTING? Think of caution when it comes to embracing cases can reach into terabytes. cloud computing as a method of harnessing advances in technology. So it was with the At a time when the information that computer power, as much or as little as you L fax machine. So it was with e-mail. So it lawyers deal with is electronic, the cloud is need for the task at hand—available when you was with the Internet. And so it is now with uniquely well suited to the task. need it and out of sight when you don’t. Using cloud computing. But once they understand the benefits and allay their fears, lawyers not only embrace new technology, they run with it. So it was You use your computer to access data and with these earlier technologies, and so, again, it is with cloud computing. applications located elsewhere on computers Over the last few years, legal professionals have begun using the cloud for every- with far more firepower and capacity than thing from practice management to client relations. Even so, one area of legal practice stands out as particularly well suited to the your paltry PC could ever provide. cloud—electronic discovery and the handling of electronically stored information (ESI). Consider the following: nothing more than a laptop or iPad, you can In electronic discovery, the cloud offers • When a single case can involve multiple ter- tap into virtually limitless computing power. distinct advantages: power, flexibility, mobil- abytes of data, cloud computing offers virtu- Vivek Kundra, named by President Obama ity, economy of use, and ease of deployment. ally unlimited power and scalability. as the nation’s first chief information officer, In fact, in a 2010 report on electronic discov- • As enterprises increasingly become global, compares cloud computing to the public water ery, the technology research firm Gartner, cloud computing enables the loading and supply. Where once each household had to Inc. concluded that the future of electronic dis- processing of data from locations anywhere in find and maintain its own water supply, we covery technology is in the cloud. A cloud- the world. now turn on a tap when we need water and based e-discovery platform, Gartner said, • When multiple languages threaten Babel- turn it off when we’re done. By drawing on the “offers benefits that on-premises software or like confusion, cloud computing simplifies public supply, our lives are greatly simplified. applications cannot.” sorting and searching. Kundra led the charge to move the federal WHY THE CLOUD FOR E-DISCOVERY? • When legal teams are likely to be spread government’s IT infrastructure to the cloud. As a new lawyer, you are entering a profession across multiple venues, cloud computing “By using cloud services, the federal govern- that is increasingly unbounded. The busi- enables them to collaborate seamlessly. ment will gain access to powerful technology nesses you represent—even small and mid- • As litigation costs spiral out of control, resources faster and at lower costs,” he wrote. sized ones—will be global in their opera- cloud computing eliminates capital and main- “This frees us to focus on mission-critical tions. The cases you take will require you to tenance costs, cuts staff requirements, and tasks instead of purchasing, configuring, and interface and collaborate with people all over enhances efficiency. maintaining redundant infrastructure.” the country, if not the world. • When time is of the essence, cloud comput- Just as the public-works utility delivers a vir- And everything you do will be driven by ing allows rapid deployment, faster process- tually unlimited supply of water to your kitchen data. Whereas lawyers once pushed paper, ing, and quicker review. tap, cloud computing delivers virtually unlim- they now deal with electronic information— Whereas the early development of e-dis- ited power to your local computer. Instead of and lots of it. Even relatively run-of-the-mill covery technology was centered in locally pipes and reservoirs, cloud computing uses cases can involve megabytes of electronic installed appliances, the future is in the cloud. the plumbing of the Internet to tap into files and documents and e-mails stored on any num- And that future is already here. applications on remote computers.

Robert J. Ambrogi is a lawyer and the director of communications for Catalyst Repository Systems, Inc., a pioneer in providing cloud-based document repositories for e-discovery and other complex legal matters.

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 43 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 44

THE DIGITAL HUB IN THE CLOUD. When Complying with the request will require ware, nor additional IT staff. Training is sim- Apple CEO Steve Jobs unveiled the com- collection and review of some 500 gigabtyes plified, and project time is reduced. pany’s iCloud service in June 2011, he of ESI, which translates to more than 30 mil- Lower costs translate to an added plus for described a world in which our data is increas- lion pages. The documents reside in the cus- lawyers in smaller firms. With a cloud-based ingly disembodied from our devices. The tody of many individuals in various divisions system, small firms stand on a level playing solution, Jobs said, is “moving the digital hub and subdivisions on computers in far-flung field with their larger firm counterparts. into the cloud.” locations—including Russia, Italy, and CAUTIONS REGARDING CLOUD COM- Jobs’s notion of a digital hub in the cloud China—and are written in at least a dozen PUTING. Before you conclude that cloud is an apt description for cloud computing. In different languages. computing is all pie in the sky, a new lawyer reality, of course, the data is not “in the cloud.” You face the daunting task of collecting, should consider certain cautions when select- It is stored on a server somewhere and perhaps translating, indexing, searching, reviewing, ing a cloud provider. on multiple servers. Rather than access data and producing the documents, with little time One is ethics. Lawyers are duty bound to and applications directly on your computer, to do it. How does a cloud-based e-discovery ensure the confidentiality and security of you use your computer to access data and provider help? Here are some of the ways: client documents and communications. A applications located elsewhere on comput- • Zero to 60 in a flash. Appliance-based sys- handful of state ethics panels have examined ers with far more firepower and capacity than tems require purchase, installation, and setup, whether it is ethical for lawyers to store their your paltry PC could ever provide. consuming precious time. With a cloud-based clients’ documents in the cloud and use cloud- The National Institute of Standards and application, no time is wasted getting up to based applications. Every panel so far has Technology (NIST) says that cloud computing speed, because a computer and Web browser concluded that cloud computing is on solid is defined by five essential characteristics: are all you need. ethical ground. • On-demand self-service. The user can access • Universal access. When your case is far- At the same time, these panels urge lawyers the system unilaterally whenever needed. flung, your team may be also. Lead counsel to exercise common sense in selecting a cloud • Broad network access. The system is avail- may be in New York. One review team might provider. In particular, they urge lawyers to able over the Internet and accessed through be in the Midwest. Foreign-language review- thoroughly vet a provider’s security and sta- standard computing devices such as laptops, ers might work in Hong Kong. Wherever bility. That means you should look for a mobile phones, and PDAs. your team is working, at whatever hour, the provider with an established reputation, not • Resource pooling. The provider pools its cloud provides easy access to the system and only for the strength of its security but also for computing resources to serve multiple con- the data. the viability of its business. An established sumers, with different physical and virtual • Unbridled power. When you face a massive provider can supply you with detailed infor- resources dynamically assigned and reas- document review, sluggish computers don’t mation regarding its system security and its signed according to demand. cut it. With a cloud-based system, you tap into practices regarding backup and disaster recov- • Rapid elasticity. Capabilities can be rapidly an expandable grid of high-capacity process- ery. Once you are satisfied, be sure to enter and elastically provisioned to quickly scale up ing power. With an appliance-based system, into an express, written nondisclosure agree- and rapidly released to quickly scale down. you can hit the wall, but in the cloud, there ment with the provider. • Measured service. Cloud systems automat- are no walls. In addition to ethical considerations, there ically control and optimize resource use, • Capability of handling multiple languages. may be legal issues. One involves the location providing system monitoring, control, and Cloud systems often have specialized tools and of the data. A U.S.-based company should transparency. applications not available in locally installed fully understand the legal implications before Cloud-computing services are delivered systems. Some cloud platforms offer sophis- using a provider whose servers are outside the according to various models, NIST says. The ticated multilanguage capabilities, translat- United States. The converse is equally true: A one most familiar and applicable to e-discov- ing documents on the fly and searching across foreign company may not want to use a U.S. ery is Software as a Service. With SaaS, the multiple languages. provider unless the provider also has non-U.S. consumer uses applications that run on the • Elasticity to meet demand. Cloud platforms data centers. provider’s cloud infrastructure. are built using high-capacity storage devices Of course, lawyers’ use of any technology ADVANTAGES OF THE CLOUD FOR E- with massive processing power. If your proj- should be guided by caution and common DISCOVERY. So, what does all this have to do ect suddenly scales up, you need not rush out sense. In e-discovery, however, the choice of with e-discovery? Consider the following. to buy more hardware. The system scales to technology is increasingly driven by the sheer Your client, a multinational corporation, the demand. magnitude of the task at hand. As megabytes recently concluded an intricate and intercon- • Reliability and security. With cloud-based become gigabytes and then terabytes, as data nected series of major commercial transactions platforms, you have no maintenance worries. is stored in multiple locations in multiple in Eastern Europe, Europe, and Asia. Now it Hardware systems become redundant. formats and in multiple languages, as the task is under investigation by the U.S. Department Software is always up to date. And electronic of document review becomes more complex of Justice for possible violations of the Foreign discovery companies are zealous about and the consequences of mistakes become Corrupt Practices Act. The DOJ has demanded system security. more severe, one form of technology stands that your client produce all documents related • Lower costs. Cloud-based systems are the out as having the power, capability, and flex- to those transactions—and that it produce most economical because they do not require ibility to handle the task. In e-discovery, the them within 90 days. up-front investment for hardware and soft- future is in the cloud. ❖

44 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 45

PRACTICE BASICS

By Blair SchlecterByline

Advancing the Long-Term StrategyHeadline of Changing the Law

ew attorneys may find, as they pro- the argument. Or an important argument or 1) what they want the law to be, 2) the like- ceed in their practices, an aspect of the case is completely left out of a motion or brief lihood of achieving the change they seek, and law of unintended consequences that to the court, resulting in the issue being 3) the steps they must take to realize their N I call “law by accident.” Even a brief waived. Further, the possible ramifications goal. immersion in the legal system will reveal of a legal challenge to the current state of the Deciding what you want the law to be is that rules and doctrines are established more law are not fully examined, resulting in a generally the easy part. Attorneys should by accident than by design. As practitioners handle the daily tasks of moving cases forward, they should consider the bigger picture of how to use a case to actually establish When you are presented with a new case, new law or advance a legal rule or theory that will benefit the long-term interests of their don’t think merely about its resolution. Think clients. Practitioners generally focus on a case in light of a client’s short-term interests in win- about whether your client’s case raises signing or defending the case. The client and the attorneys share one goal: reaching a success- nificant issues beyond its particular facts. ful conclusion in the case in front of them. The resolution of the case may involve the emer- missed opportunity or an argument that back- review recent litigation in their area of prac- gence of an important legal issue that ulti- fires. The result of failing to plan ahead is tice to determine emerging issues as well as mately must be settled on appeal—and that that infrequent and promising chances to those that seem to be most frequently arising appeal leads to a legal precedent. However, the change the law may be lost—sometimes per- in appeals. In addition, they should prioritize litigants actually do not anticipate or plan manently. what issues are most important. this result. It is, in many ways, an accident. Some laws continue to sit on the books Attorneys should next determine the The new rule is established essentially by when clearly they are likely to be reversed if chance of success in establishing a new legal happenstance. challenged. Alternatively, other laws change precedent or reversing unfavorable law. It is But the development of new law does not more as a result of chance or luck, without impossible to make an absolute determination have to occur by chance. Rules that have long much planning. This is not an effective way of one’s chance of success. However, there awaited a bright-line revision or a reversal to create a set of rules and laws favorable to are often signals as to whether particular legal continue to be unchallenged because litigants your clients. issues are good candidates for challenge: fail to look ahead, determine their long-term • There is no binding law on your issue. If an goals, and plan accordingly. Thinking Ahead issue is not already resolved in your favor, this The short-term approach is understand- The best players in the game of chess are may be the ripest target, since you are free to able. After all, the job of attorneys is to resolve those who can visualize several moves ahead, argue what the law should be. This situation suits in their clients’ favor. Still, the disadvan- anticipate their opponent’s moves, and is even more appealing if courts in other juris- tages to purely short-term thinking cannot be respond accordingly. Similarly, the best and dictions with generally persuasive opinions overlooked. For one, thinking only about the most effective attorneys are those who think have recently ruled in favor of the theory you task in front of you can result in an issue several steps ahead to anticipate what their are advancing. being inadequately presented to the court. opponent and the courts are likely to do and • The courts are split on your issue. Appellate Counsel may present a possible legal defense act accordingly. courts at the state and federal levels are fre- with potentially broad implications in a cur- Instead of waiting for issues to arise, quently divided. Sometimes all circuit courts sory fashion, resulting in the court rejecting attorneys (and their clients) should consider but one have ruled in a favorable manner on

Blair Schlecter is a partner with Hurrell Cantrall, LLP in Los Angeles. His practice focuses on municipal liability and appellate law, including the defense of claims against government officials and entities.

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SECTIONPRACTICE BASICS

By Heather E. Stern an issue—and the one holdout is the court in which your case is venued. You may be able to argue that recent changes in the law in other jurisdictions support a change in the law in your court as well. • The U.S. Supreme Court has recently issued Applying the “Usual Stipulations” at a a decision that applies a new rule favorable to your client, but the parameters of the rule have HeadlineDeposition not yet been fully defined by the lower courts. Practitioners can use the new authority to argue that an issue should be decided in their favor. The next step is determining how to seek a change in the law. Once again, thinking ahead about long-term goals is key. When you are presented with a new case, don’t think merely about its resolution. Think about whether your client’s case raises significant issues beyond its particular facts. Discern whether the case implicates a law you seek to affect. Develop a strategy at the beginning of the case for how to address these cutting- edge issues.

Careful Planning You should revisit your goals at regular inter- KANEKO vals throughout the case. Is there a legal claim

or defense you should preserve at the begin- AMANE ning of the case for a dispositive motion, trial, or appeal? Is there a fact you need that would he last question has been asked, the last the stipulations may also address the handling help obtain the change you seek? Is there a objection has been made, and the witness of the recordings. trial exhibit or testimony you should use to has given the last answer. Finally, the As an initial matter, lawyers typically stip- preserve an argument for later presentation on T deposition has concluded. One of the ulate that the court reporter is relieved of his appeal? Be prepared to challenge the law in a lawyers asks, “The usual stipulations?” For a or her duties under the Code of Civil Pro- clear and convincing fashion and to use the new lawyer unfamiliar with this custom, this cedure, which is often referred to simply as appropriate authority to do so. question can spark anxiety and self-doubt. “the Code.” Some lawyers do not agree to Of course, every strategic legal plan faces With a little preparation, however, the lawyer this broad stipulation, which relieves the pitfalls. Pursuing a long-term strategy may can respond with confidence. reporter of the duty to transcribe the record result in an adverse ruling to your client. Deposition stipulations are often entered accurately. A narrower stipulation can be pro- Additionally, an ill-advised argument could into among counsel at the conclusion of a posed that relieves the court reporter of his or result in unnecessary costs and legal proceed- deposition in a case pending in state court. her duties under the Code concerning the ings. As you pursue the long-term goals, no These stipulations may be used to change the custody of the transcript and notification to matter how much they may ultimately bene- rules imposed by the Discovery Act concern- other parties of any changes to the transcript. fit your client, you always need to consider the ing the handling of the transcript.1 The purpose of this stipulation is simply client’s short-term interests as well. In truth, there is no such thing as the to eliminate the default application of the With careful planning, you can avoid an “usual stipulations.” Most of the time, they are statute to the handling of the deposition tran- approach to law that merely addresses one file entered into orally and transcribed by the script.2 The default rules concern the amount at a time and never considers how the law court reporter as part of the record. They of time a deponent is given to make any should be changed. A long-term approach change the duties that the law would other- changes to the transcript, the means by which has the potential of establishing favorable wise impose on the court reporter, the the transcript is reviewed and approved or legal precedent for future cases. It will also save lawyers, and the deponent regarding the han- rejected by the deponent, and who has cus- your current clients money by avoiding the dling of the deposition transcript. If there is tody of the transcript following its preparation. need for making claims or asserting defenses a video or audio recording of the deposition, If counsel stipulate to relieve the court reporter to issues that are now already established in

your clients’ favor. Heather E. Stern is a partner with the law firm Kralik & Jacobs LLP in In short, think several steps ahead, just like Pasadena. She specializes in real estate and business litigation. a chess player. You will be glad you did. ❖

46 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 47

of his or her duties, counsel should also agree the deposing party. With an impending motion ney may have difficulty obtaining the original on the alternative obligations. or trial date, the terms of this stipulation can transcript from the lawyer with custody of it be important. No one wants to file a motion when the trial occurs years later and the Review of the Transcript for summary judgment on the basis of key lawyer with custody is no longer involved in By statute, deponents have 30 days to review admissions made in a deposition, only to find the case. To cover these scenarios, lawyers the written transcript of the deposition, make out after filing the moving papers that the typically stipulate that if the original tran- any changes, and approve or refuse to approve deponent has changed the transcript to dis- script is for some reason lost, stolen, or oth- the transcript. The statutory 30-day period avow the admissions. If timing is critical, erwise unavailable, that an unsigned certi- begins when the court reporter provides the negotiate a shorter period for the deponent to fied copy can be used in lieu of the original. required written notice to the deponent and review the transcript and an obligation to all parties attending the deposition that the report any changes by electronic mail or fac- Rare outside Southern California. transcript is available for reading, correcting, simile rather than by postal mail. While deposition stipulations may be common and signing.3 practice in Southern California, in other areas, In many circumstances, counsel attending Custody of the Transcript customs differ. For example, lawyers in the deposition stipulate to a different deadline By statute, after the review period expires, Northern California do not ordinarily enter into for the deponent to review the transcript. An the court reporter is obligated to certify and stipulations at the conclusion of depositions. impending trial or motion date may lead deliver the sealed original transcript to the If you are attending a deposition outside counsel to stipulate to a shorter period. A attorney who noticed the deposition.5 That Southern California, find a moment during a deponent’s upcoming vacation or pressing attorney is then obligated to store the origi- break to ask the other lawyers attending the work obligations may lead counsel to stipu- nal transcript “under conditions that will pro- deposition whether the common practice late to a longer one. tect it against loss, destruction or tamper- includes deposition stipulations. And if it does In addition, counsel typically stipulate ing.”6 Counsel sometimes agree instead that not, be sure to familiarize yourself with the that the transcript, once prepared, shall be sent the original transcript shall be maintained by default rules under the Code, since they are the to the deponent or to the deponent’s counsel counsel for the deponent, or by someone else guide for handling the transcript. for review. Counsel then typically agree that other than the lawyer for the party noticing the Although there are common topics covered the agreed-upon time for the deponent to deposition. For example, if the deposing party by a deposition stipulation, the details—such review the transcript begins on the date that is likely to be dismissed in the near future, as the number of days for the deponent to the transcript is sent to the deponent or the counsel may stipulate that the original be review the transcript and who retains cus- deponent’s counsel, rather than the date on maintained by someone else to avoid impos- tody of the original transcript—will differ which the court reporter advises the depon- ing ongoing duties on a party that is likely to from case to case depending on the circum- ent that the transcript is available for review be no longer involved. The stipulation also stances. So if at the conclusion of the depo- at the court reporter’s office. sometimes specifies that the original transition, you are asked to stipulate to the usual In the absence of a stipulation to the con- script must be maintained until after final stipulations, you should not hesitate to ask the trary, any changes to the transcript are either judgment in the action, unless otherwise lawyer to offer a particular proposed stipula- made by the deponent in person at the office ordered by the court. By statute, counsel must tion for your consideration. In listening to of the court reporter or “by means of a letter retain the transcript until six months after the proposal, make sure that the proposed to the deposition officer signed by the depon- final disposition of the action.7 stipulations suit the client’s needs, particularly ent which is mailed by certified or registered Counsel also usually stipulate that the regarding the timing of the review of the tran- mail with return receipt requested.”4 Lawyers lawyer with custody of the transcript is obli- script. Assuming that the stipulation is satis- usually stipulate that the transcript, once pre- gated to make the transcript available upon factory on these grounds, you should feel pared, shall be sent directly to the deponent demand of any party for any trial, hearing, or comfortable responding with the customary or to the deponent’s counsel (usually by a other purpose in the litigation. “so stipulated.” specified means, such as overnight mail) so While a stipulation as to how many days Similarly, if you are counsel for the depos- that the review does not need to occur in a deponent has to review a completed tran- ing party, be ready to offer a proposed stipu- person at the court reporter’s office. In addi- script is useful, deponents often fail to lation of your own. Assuming that it covers the tion, lawyers may stipulate to a different expressly approve, disapprove, or make a sin- necessary topics and addresses any unique means by which parties are notified of any gle change to a transcript after receiving it. needs of the deponents or the lawyers in changes ultimately made to the transcript. Lawyers therefore often stipulate that if the attendance, you can end your deposition with One common stipulation obligates the deponent fails to approve or provide notice of a smooth invocation of this Southern lawyer for the deponent to provide written any changes to the transcript within the allot- California tradition. ❖ notice within a stipulated period by regular ted period, the deposition shall be given the U.S. mail (or some other means) to all parties same force and effect as though it had been 1 CODE CIV. PROC. §2016.030. of any changes that are made to the tran- approved and signed without corrections. By 2 See CODE CIV. PROC. §2025.520. 3 CODE CIV. PROC. §§2025.520(b), 2025.520(a). script after receiving notification of the changes statute, this would be the same result in the 4 CODE CIV. PROC. §2025.520(c). 8 from the deponent. If the deponent is not absence of a stipulation. 5 CODE CIV. PROC. §2025.550(a). represented by counsel, the stipulation typi- A deponent may never return the original 6 Id. 7 CODE CIV. PROC. §2025.550(b). cally imposes those duties on the lawyer for transcript that he or she was sent, or an attor- 8 CODE CIV. PROC. §2025.520(f).

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 47 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 48

AT THE COURTHOUSE

By Judge Lee Smalley Edmon

How to Survive—and Even Succeed—in the Los Angeles Superior Court

ou have recently graduated from law particular ways. If at all possible, visit the help you conduct some research about your school. You have passed one of the courtroom in advance of your hearing and judge. The Los Angeles County Bar Associ- toughest bar exams in the country. I watch the judge in action. Find out how he ation has online biographies of many judges. Y congratulate you on these achievements, or she likes things done. If you do so, you will Additionally, the Daily Journal has published and I promise you that they are just the start know the layout of the courtroom and where biographies of most of the judges, and many of what will be exciting and fulfilling profes- to stand, which will increase your comfort other local bar associations have profile infor- sional careers. We bench officers on the Los level at your hearing. If you will be in trial mation available. Angeles Superior Court look forward to hav- before that judge, watch a trial in action in that ALWAYS BE PROFESSIONAL. Many believe ing you appear before us. courtroom. At the break, talk to the lawyers that in our aggressive and competitive profes- Obviously, one of the best ways to be suc- about their experiences in front of the judge sion “Rambo tactics” are effective and civility cessful in court is to have a great case on and ask about the judge’s likes and dislikes. is a luxury they cannot afford. But that could both the facts and the law. But even if you do For example, different judges have differ- not be further from the truth. Law is a profes- not have the world’s greatest case, there are ent styles in terms of presentation—some like sion with professional standards—different techniques you can use to do the best job lawyers to present argument from behind from other businesses. You are bound to the with the facts and the law that you do have. counsel desk or a podium; others let you high ideals of the profession and you can be Applying these tips can make appearances move about. In trial, in some courtrooms, professional and assertive at the same time, less stressful for you and keep bench officers you have to ask to approach the witness. always demonstrating respect for others and for happy. Although these techniques are offered Other judges do not require you to ask; you the justice system. Practicing professionalism with a civil practice in mind, many of the can simply approach the witness. Now, if you and civility does not mean giving up being an concepts are applicable in any courtroom. do things a way the judge does not like, you advocate for your client; indeed, it enhances BE PREPARED. This is the overarching will hear about it and have an opportunity to your advocacy. A reputation for civility will rule: Do not go into any hearing unpre- modify your behavior; but it is far better for benefit your client in the long run. Treating pared. Understand the facts of your case, the judge to see that you are doing things opposing counsel with the utmost profession- and know the law. It is important to read the right from the start and to develop credibil- alism and courtesy will enhance your reputa- papers and be ready to respond to ques- ity with the judge that you may need later. tion with the judicial officer hearing your case tions from the judge. The judge will not be In addition, if the judge is not on the and will make it easier to settle. satisfied if you say you cannot answer his or bench when you visit the courtroom and Judges do not want to become involved in her question because you are only making an court staff is free, consider introducing your- personal fights between lawyers over discov- appearance for another lawyer, either in your self to the court staff. They can be of great ery scheduling issues, such as the start times firm or as an accommodation to cover a con- assistance to you while your case is pending and locations of depositions. Nor is the court flict for a colleague. Additionally, if the hear- before that judge, so it is helpful to be pleas- interested in reviewing countless nasty e- ing is to schedule a future hearing or trial ant to them from the inception of your case. mails and letters exchanged between counsel date, make sure you know the schedule for For example, if you intend to use any audio- over issues that could have been resolved if the all attorneys, experts, and other witnesses visual equipment during your hearing or trial, lawyers had just picked up the phone. In whose appearance will be necessary for the you can talk to court staff about how and your written papers and oral advocacy before hearing or trial. what equipment you need to bring in and the court, avoid hostile attacks on your oppos- As you read on, you will see that this prin- when and where it should be set up. In all our ing counsel—simply stick to the facts and ciple of being prepared manifests itself in courts, the courtroom personnel in every issues which will help the court resolve the many of the practices that make a successful position are critical components of the oper- legal problem at hand. trial lawyer. ation of the court. The judges value them Remember that your professional reputa- KNOW YOUR JUDGE. Every judge is dif- highly and respect them. You should too. tion is at stake. Always treat the court, court ferent and likes his or her courtroom run in There are a number of sources available to staff, and opposing counsel with respect and

Judge Lee Smalley Edmon is the presiding judge of the Los Angeles Superior Court.

48 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 49

dignity. You should prefer to have the judge counsel. remember you for your professionalism rather BE ON TIME. Be respectful of the time of than your incivility. Remember too that if you court, court staff and opposing counsel by come into court and are disrespectful to court being on time. And never keep a jury waiting. staff, the judge will assuredly hear about it. Because you cannot anticipate the delays you Of course, civility is not just a one-way will encounter in traffic, in parking, and in street. Civility is required of all participants in long security lines, the better approach is the system—not just advocates, but also liti- simply to plan to arrive early. That way, you gants, witnesses, court staff, and judges. will have the opportunity to address any last- Indeed, judges may have the highest obliga- minute issues that may arise, have a cup of cof- tion to act civilly in order to set the tone and fee, relax on a court bench, and be fully pre- to insist on civility in matters before them. pared to address the matter to be heard by the Finally, a part of being professional is court. If you are going to be late, and it is sim- dressing appropriately for your appearances ply unavoidable, at a minimum you should in court. Today many firms have a policy of give the court and counsel a phone call, and informality at work, which may be fine in it should be a very good excuse. the office, but is not fine when appearing in LOS ANGELES SUPERIOR COURT LIT- Target court. This applies to both men and women. IGATION PROGRAM. Twice a year on a PROVIDE THE COURTROOM WITH Saturday, typically in March and August, a Your Online COURTESY COPIES OF PAPERS FILED number of judges of our court present a day- SHORTLY BEFORE THE HEARING. This is long program for young lawyers who have a practice tip that is optional, strongly encour- recently passed the bar. The program is Search aged by the court, and may help you succeed. cosponsored by the Los Angeles Superior Budget cuts and substantially reduced Court Judges Association as well as the Los for Experts resources to run the system often result in Angeles County Bar Association and its delays that cause papers filed shortly before Litigation Section. Attendees meet at the Quickly, the hearing from being delivered to the court- Stanley Mosk Courthouse downtown and room in time for the judge to read them hear from judges about the civil litigation beforehand. Accordingly, it is advisable to process in the Los Angeles Superior Court, Easily deliver a file-stamped courtesy copy of plead- including presentations about how and where ings filed during the last seven days prior to cases are filed, a discussion of alternative dis- Need an Expert? a hearing immediately after they are filed, so pute resolution, law and motion, pretrial Find one here! that the judge can be fully prepared. appearances, and trial. Written materials are BE BRIEF. Unfortunately it usually takes provided, covering information on virtually more time to make your arguments brief, but every aspect of civil cases. I can assure you the it is worth it. Be concise and clear about what speakers will elaborate on some of the tips I you are seeking. A succinct argument that have discussed in this short article. Informa- gets the judge’s attention is more likely to be tion and registration for this program appear successful. This is truer now than ever before. regularly at http://www.lacba.org/calendar. www.expert4law.org Due to recent budget cuts—which resulted in WELCOME TO OUR COURTROOMS. Each The Legal Marketplace layoffs of court staff and closure of some civil year the court welcomes hundreds of new courtrooms, even as case filings were rising— lawyers to our courtrooms. While it some- THE LOS ANGELES COUNTY BAR the caseloads of Los Angeles Superior Court times is frustrating to deal with the mistakes ASSOCIATION’S OFFICIAL ONLINE judges have grown. As a result, there are more caused by inexperience, judges generally are DIRECTORY matters heard on the daily law and motion cal- more than willing to help new lawyers with pro- • expert witnesses endars, and there is often a massive amount cedures and practices that take time to learn. • legal consultants of reading for the judge to prepare for each After all, we were all new lawyers at one time. • litigation support day’s calendar. Keep that in mind as you pre- However, these tips to success can be mas- pare your papers. tered by the newest lawyer and should be • lawyer-to-lawyer referrals In your pleadings, include only the argu- heeded by the most experienced. Your inexpe- • dispute resolution service ment and evidence that are absolutely neces- rience is not an excuse for not following them. providers sary to the result you are trying to obtain. If you don’t follow them, you can quickly wear Organize it in a way that will be easy for the out your welcome; but if you follow them judge to find, follow, and understand. starting right now at the beginning, you will www.expert4law.org The same is true with oral argument: Get build a strong professional reputation in the to the point, be respectful, and address your courthouse, and you will be serving your comments to the court rather than opposing clients well. ❖

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 49 1 SurvivalGuide2011_master.qxp 8/24/11 3:08 PM Page 50

AT THE COURTHOUSE

By Judge Michael L. Stern

Litigation Tips for Tight Times

ttorneys entering the legal profession cal woes currently experienced by the courts sink along with more well-considered claims. are no doubt hearing from their more translate into more crowded calendars and Attorneys faced with a demurrer or motion to seasoned colleagues that the recent greater difficulties in adjudicating civil cases. strike should swallow their pride and file a first A changes in trial court operations, client These conditions directly affect the ability of amended complaint using the defendant’s imperatives, and law office economics have attorneys not only to resolve their cases suggestions as a recipe for improvements or been a seismic jolt to the legal landscape. promptly but also to ensure that they are simply seek a stipulation for an order for a fur- Compared to previous decades when the properly compensated. ther pleading. economy was robust, attorneys now must Under these changed circumstances, can On the defendant’s side, certainly a demur- work harder than ever to earn a decent living. attorneys assist the courts, their clients, and rer or motion to strike that hits a home run They must adjust their litigation practices to themselves to more economically expedite is worth the effort. Many are not. So why meet client challenges and maintain an edge civil cases to resolution? The answer is yes. draft these pleadings when their only purpose over the competition. New attorneys as well as more experienced is to educate the opposition about the prob- During their student days, new attorneys practitioners need to examine and tighten lems of the case? If some claims in a complaint began to read the unhappy news, which has their litigation practices to realize efficiencies will plainly survive a demurrer, a defendant’s continued to dominate legal headlines, about for all. A variety of practical tips may lead to counsel can save a lot of bother—and the venerable large law firms crashing, merging, more cost-effective and successful litigation. client’s treasury—by moving the litigation laying off attorneys, and cutting back on new process forward with an answer rather than hires. The economic downturn has affected Truly Responsive Pleadings taking potshots at the complaint in the form law firms of all sizes. Indeed, firms continue For years, rumblings have echoed in various of nondispositive demurrers or motions. If the to struggle as longstanding clients—busi- quarters that too much attorney time and facts or legal theories seem deficient, devote nesses and individuals—become “slow pays” client money is spent on initial pleadings. the client’s budget to pretrial discovery in or “no pays,” simply unable to muster the Certainly a well-conceived demurrer or anticipation of filing a motion that might funds to pay lawyers to litigate. At the same motion to strike by a defendant challenging actually put the case to rest. time, rivalry for clients is stiff, and rewards the adequacy of a complaint or claim can seem harder to reap. define the scope and direction of a lawsuit. In Timing Is Everything Major developments in California’s trial an era of longer court calendars and precious As the fiscal ax falls more heavily on civil courts are also having an impact on the man- client resources, however, attorneys should courts, it will take longer for cases to come to ner in which cases are litigated. The eco- take more thoughtful precautions regarding trial or reach other types of dispositions. This nomic downturn has caused the number and the filing of these types of pleadings and their can lead to procrastination by counsel in their complexity of new court filings to dramatically responses. With increasingly longer waiting pretrial preparations. Delay, however, is a increase, after many years at a fairly constant periods for a court hearing, counsel must poor strategy. Knowledge is essential to suc- level. The result is that civil trial courts are reevaluate whether some of these calendar- cessful litigation. Counsel will improve their busier than ever, with more pretrial matters, clogging motions are fully worthwhile. chances of winning by obtaining key docu- settlement conferences, and jury and bench For plaintiff’s counsel, avoiding the possi- ments and testimony as early as possible while trials. Meanwhile, the number of courtrooms bility of a demurrer means carefully drafting crucial information is still available. devoted to civil matters has shrunk. Courts a complaint that neither pleads nonessential Old-timers—those who practiced in the have laid off employees, implemented hiring causes of action nor offers a litany of every pos- days before the institution of streamlined, freezes, and introduced monthly furlough sibility. Attorney time is too valuable to be expedited, trial-setting procedures—like to days during budgetary crunches. squandered producing slapdash complaints tell their younger counterparts that it is a There are no indications that court work- that are easily demurred. For that matter, few mistake to wait until the trial bell rings (per- loads will be reduced soon or that additional clients are impressed by—or want to pay haps five years after filing a complaint) to funding is forthcoming. Simply put, the fis- for—a complaint that throws in the kitchen start conducting pretrial discovery. Too many

Michael L. Stern is a Los Angeles Superior Court judge.

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veterans learned the hard way that early dis- especially when the differences involve sim- this information by telephone or in person covery makes sense because parties and wit- ple matters such as setting deposition dates or with opposing counsel before an initial hear- nesses move, relationships change, and mem- responding to form interrogatories. It is best ing—not just sending a pro forma e-mail or ories cloud. In addition, while a case lingers not to lean upon a court’s time with a motion letter—can ensure that the appropriate ADR in limbo, concerned clients may be wonder- to compel discovery until all avenues for res- route is selected. ing if their attorney is actually on the job, olution have been exhausted. If a motion to Most California courts have different but prosecuting or defending their case. compel becomes necessary, counsel are similar in-house ADR programs available to Whether counsel’s objective in conducting required to prepare a thorough, and preferably meet the requirements of litigants. These pro- pretrial discovery is finding out what hap- joint, statement. grams would not be in place if judges did not pened or preserving testimony for summary judgment or trial, those who have waited for trial in the long lines of yesterday advise that it is good practice to start discovery early. Too many veterans learned the hard way that This also avoids those last-minute races to the courthouse to file motions compelling early discovery makes sense because parties long-delayed discovery or seeking a trial con- tinuance. Get the most bang for the discovery buck by focusing, before the evidence trail and witnesses move, relationships change, cools, on the principal actors in the case for deposition testimony. and memories cloud.

More Action, Less Motion Targeted written discovery is an integral part Alternative Dispute Resolution believe them to be cost-effective methods for of a well-conceived pretrial discovery plan. Judges frequently ask, “What have the parties resolving cases. Knowing in advance how Preparing and responding to written discov- considered for ADR in this case?” Given that these in-house programs work is time-saving ery takes a lot of time. Since time is money, counsel hold the destinies of their clients and perhaps even client-saving. practitioners should consider making a strate- within their grasp, the responses to this Aside from a traditional settlement confer- gic judgment to dispense with nonessential inquiry can be exasperating. Attorneys too ence with the trial judge, these programs may form and special interrogatories. Indeed, this often tell judges, “We haven’t gotten there include mediation through a court-adminis- type of discovery may elicit responses more yet,” “We’re going private,” “Panel please,” or tered ADR office, voluntary early neutral eval- often from attorneys rather than parties. perhaps just stare back at the court with a uation by experienced attorneys, a judicial Notwithstanding the high costs of litiga- deer-in-the-headlights expression. Most every- officer (other than the trial judge) conducting tion, certain attorneys seem to spend inordi- one appreciates the value of ADR programs a settlement conference, “crash” settlement nate amounts of time churning paper in the and mechanisms, but too often the determi- programs using attorneys to conduct settle- discovery process. This species of advocate nation of what form of ADR would be appro- ment conferences, or even referral to a volun- appears to have perfected the art of preparing priate is made with insufficient thought. teer retired judge. It is an attorney’s respon- vague written discovery requests designed In today’s dollar-conscious legal world, sibility to know how to take best advantage of more to make the other side labor than obtain attorneys have the responsibility to under- these no-fee court ADR services. admissible evidence. These practitioners are stand the nature of all the different ADR alter- With client funds at stake, practitioners known to propound written discovery by the natives and how each might best apply to should thoroughly investigate the feasibility of inch and, inevitably, after their wishes for fee- their cases. ADR is not a one-size-fits-all using an alternative known as the Second ble responses come true, they seem to delight proposition. Judiciary: firms of retired judges, attorneys, in filing motions to compel by the pile. Judges anticipate that counsel will per- and independents who arbitrate, mediate, Attorneys on the receiving end of oppressive sonally discuss ADR before a case management and work as referees for a fee. In considering discovery requests should not hesitate to seek or trial setting conference. It also is a good idea the selection of a nonjudicial ADR provider, protective orders placing limits on such non- to know in advance about a particular judge’s ask these critical questions: Will the client productive make-work. procedures and preferences. actually save time and money by opting for When discovery responses are incomplete, One way to determine what to expect is to private adjudication? What is best for the evasive, or simply not forthcoming, a mean- contact the judge’s clerk in advance of the case: the convenience, informality, and privacy ingful meet-and-confer process should lead to conference to find out whether the court auto- offered by nonjudicial ADR or the force of the a reconciliation of differences. A motion to matically sets mandatory settlement confer- judiciary’s imprimatur and procedures in a compel ought to be a last resort and avoided ences, waits for counsel to make a request, or public forum? at all costs. Moreover, counsel should take refers counsel to another judge for settlement notice that some judges are offended by dis- purposes. Surprisingly, this method of finding Expedited Jury Trials covery motions. Indeed, judges presume that out the what and when of court procedures Word is finally getting around about counsel are professionals who are capable of is seldom employed. It should be—but not on California’s recently enacted provisions for resolving discovery disputes on their own— the day that the hearing is set. Discussing expedited jury trials.1 Under these proce-

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AT THE COURTHOUSE dures, courts may conduct quicker, less expen- By Steven P. Goldberg sive jury trials lasting no more than a day, thus effecting great savings in certain less complex cases. The basic provisions for an expedited jury trial are straightforward. All parties must waive their rights to appeal. Each side Expedited Jury Trials Offer Quick Trial has three hours to put on all its witnesses, Experience show the jury its evidence, and argue its case. Eight jurors will be chosen to decide the case, with each side allowed three peremptory challenges. Reaching a verdict he California Legislature and the Judicial set for trial.7 Without good cause, the court requires six jurors. The jury may decide that Council have approved a new jury trial must permit an EJT if one is requested by the one or more defendants will pay money to scheme that went into effect this year.1 parties.8 To accomplish a civil jury trial in the plaintiff, or the plaintiff is not entitled to T There will be a bright future for this new one day, there will be advanced exchanges and an award. The court will enter a judgment method of adjudication when the potential evidentiary rulings before trial, so parties based on the verdict. In addition, the parties players figure out that an expedited jury trial must be cognizant of the EJT’s pretrial dead- are allowed to agree before trial that a defen- (EJT) is good for clients, lawyers, and the lines, which are different from those of a tra- dant will pay a certain amount to the plain- courts—not to mention the jury pool. And ditional jury trial. tiff even if the jury decides that a lower new lawyers will find that EJTs provide real Twenty-five days before the EJT, the par- payment, or no payment at all, is due. Alt- trial lawyer experience. ties must exchange evidence to be introduced ernatively, the parties may cap an amount to California borrowed the idea for EJTs from at trial, witness lists, proposed jury instruc- be paid to the plaintiff even if the jury returns a program that began in Charleston, South tions, proposed jury questionnaires, proposed a higher amount. (See Steven P. Goldberg, Carolina, called Summary Jury Trials. special verdict forms, motions in limine, and “Expedited Jury Trials Offer Quick Trial Charleston implemented a system for trying any technical glossary.9 Twenty days before the Experience,” at 52.) civil cases before six-member juries in a sin- EJT, a supplemental evidentiary exchange gle day. After a time, contingent fee lawyers takes place.10 Any documents or evidence Civility Pays Dividends and business interests in Charleston realized first discovered at an expert’s deposition is The greater difficulty in scheduling court how cost-effective the program was, and they automatically deemed exchanged for pur- hearings and trials under the new budget decided to use it whenever possible. Charles- poses of this supplemental exchange.11 Fifteen constraints is no excuse for attorneys to lower ton lawyers and the litigants (especially insur- days before the EJT, the judge conducts a their standards for acting professionally with ance carriers) became so enamored with the pretrial conference and rules on evidentiary one another. The duty to act ethically with new program that it soon was adopted across issues and motions in limine.12 Deadlines for opposing counsel does not diminish because South Carolina. posttrial motions are unaffected. the court system is congested. New strains on By choosing an EJT, parties largely give up An EJT is designed to be inexpensive and attorneys and their clients require heightened the right to an appeal.2 There are only limited completed in one full court day.13 The rules cooperation among counsel to ensure that circumstances, such as fraud or jury or judi- contemplate flexibility of judicial officers and litigation is accomplished in a responsible cial misconduct, under which an appeal will counsel14 and allow for innovative ways to manner. Experience indicates that open lines be allowed.3 In return, parties get an inexpen- present evidence to a jury.15 EJTs are perfect of communication yield better results. sive trial in about one full court day.4 As with for a new attorney, and they can be held in lim- Most importantly, judges expect counsel to any matter, an attorney and client should ited or unlimited jurisdictions. truly behave as officers of the court. Judicial carefully consider what type of proceeding will EJT rules generally provide that there will officers are not interested in petty bickering best serve the client’s goals. Mediation or arbi- be eight jurors chosen after about a 45-minute or nonessential differences between attorneys tration may be better for a particular matter, voir dire, with three peremptory challenges per or their clients. Those who use quarrelsome or perhaps a traditional jury trial if preserv- side (unless fewer jurors are agreed upon by the or stonewalling tactics to secure advantages ing rights is a concern. But in many cases, litigants).16 The judge and each side receive should remember that judges are extremely clients will be pleased to accept the risks of an 15 minutes to inquire of the jury panel.17 Six mindful of the adage “It all catches up with EJT in return for its speed and finality. of the eight jurors are needed to render a ver- you, sooner or later.” dict, the same proportion required in a tradi- Times are tough. No one ever said that the Additional Rules tional civil jury trial.18 Each side has three hours practice of law would be easy. However, apply- An EJT may not be required in advance by any to present its case, with cross-examination time ing some of these suggestions can make liti- contract,5 but parties may stipulate to an EJT6 charged to the examiner’s three hours. Time gating a little more efficient, economical, and no later than 30 days before the date that is can be allocated unevenly if the parties agree.19 profitable. ❖

Steven P. Goldberg is a partner with Goldberg & Gille in Los Angeles. 1 See CODE CIV. PROC. §§630.01-630.12 and CAL. R. CT. 3.1545-1552.

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AT THE COURTHOUSE Counsel may make confidential high-low agree- By Brian S. Kabateck and Dominique Nasr ments; in South Carolina, they are a hallmark of the program.20 Parties to a suit enter these agreements, which specify a minimum amount of damages guaranteed to the plaintiff and the maximum damages that a defendant will be liable for, regardless of the jury’s verdict. Usually The Rewards and Pitfalls of Class insurance policy limits serve as the high. Court reporters are not needed under EJT rules, since Actions the parties waive the right to appeal.21 If you want a court reporter, you pay for one. There are a host of suggestions within the EJT rules for additional stipulations between counsel. These are calculated to help the parties complete the EJT within the time allotted. Some notable suggested stipulations concern modifications of time lines, limits to the number of witnesses, evidentiary matters, exhibits, and video depositions.22 Most likely, the EJT process will primarily be used by parties when there are small damages, the issues are limited, or the parties just want a jury to decide the issue. But even if the jury award has the potential to be very large, parties may still opt for a cost-effective EJT. EJTs will serve as a way for lawyers to gain trial experience, especially younger and less KANEKO AMANE experienced counsel. Further, since lawyers must actually work together on the stipulations ll you need is 40 people to level the served.” In the legal community, this is known required for an EJT, the process should foster playing field against corporate America. as the first-to-file rule. The more appropriate civility between counsel. EJTs allow the courts If this sounds too good to be true, you slogan for a class action filing is “approach to move cases through the system faster and A are probably right. Having enough peo- with caution.” This is because the first lawyer with much less expense. Thus, judges will be ple to form a class merely establishes one of the to file suit will not automatically attain lead able to increase efficiency and accomplish four mandatory prerequisites for class certifi- counsel status. Rather, the mere sign of class more. Finally, jurors should be pleased to cation. A class proponent must also demon- activity will easily fuel a lawyer lineup, in know that—except for their unlimited delib- strate commonality, typicality, and adequacy.1 which many await the opportunity to expand eration time—the whole trial should take just Popular culture suggests a distinct image on your ideas and potentially nullify your a single day. ❖ of class action litigation. In addition to legal efforts as lead counsel. technicalities, the predominating perceptions When the courts designate lead counsel, 1 CODE CIV. PROC. §§630.11—630.12. are of big players and big settlements. Never- they are looking for someone with dedication, 2 CODE CIV. PROC. §630.09(a). theless, despite its reputation, class action lit- knowledge, and—more importantly—stay- 3 Id. 4 CAL. R. CT. 3.1550. igation is replete with risk for plaintiffs. While ing power. If you are working in a small office, 5 CODE CIV. PROC. §630.03(c). small individual claims can be transformed have few resources, and have little experi- 6 Id. into a supersized class action lawsuit, substan- ence in class actions, it is always best to find 7 CAL. R. CT. 3.1547(a)(1); see also CODE CIV. PROC. tial expense and difficulty can await inexpe- a partner and associate with a firm that has the §630.03(a). 8 CODE CIV. PROC. §630.03(d). rienced counsel. For those who are about to necessary resources and experience to pros- 9 CAL. R. CT. 3.1548(b). undertake their first class action litigation, ecute complex litigation. 10 Id. here is a road map for success. EVERY TEAM NEEDS A STRONG CAP- 11 CAL. R. CT. 3.1548(f). 12 CAL. R. CT. 3.1548(g). IF THIS IS YOUR FIRST TIME AT THE TAI N. Behind every class representative stands 13 CAL. R. CT. 3.1550. DANCE, BRING A DATE. Traditionally, soci- a large group of people, who will learn that the 14 See generally CODE CIV. PROC. §630.03. ety runs on the concept of “first come, first class is only as good as its representative. As 15 CAL. R. CT. 3.1551. 16 CODE CIV. PROC. §630.04; CAL. R. CT. 3.1549. Brian S. Kabateck is a consumer rights attorney and founder of Kabateck 17 CAL. R. CT. 3.1549. Brown Kellner LLP. He represents plaintiffs in class actions, mass tort lit- 18 CODE CIV. PROC. §630.07(b). igation, personal injury, insurance bad faith, insurance litigation, and com- 19 CAL. R. CT. 3.1547(b)(4). mercial contingency litigation. Dominique Nasr is an attorney at Kabateck 20 CODE CIV. PROC. §630.09(d). Brown Kellner LLP, where she practices in the areas of consumer class 21 See CODE CIV. PROC. §630.09(a). actions, mass tort litigation, and insurance litigation. 22 CAL. R. CT. 3.1547(b); see also CAL. R. CT. 3.1550.

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a precautionary measure, conduct thorough monality among class members. go-to remedy for corporate wrongdoing. Still, due diligence when determining the suitabil- By contrast, mass tort actions address a class actions are not free from disadvantages. ity of a prospective representative. First and large number of individual questions of law In AT & T Mobility LLC v. Concepcion, the U.S. foremost, confirm the person’s ability to han- or fact. For example, medical injury suits Supreme Court recently held that consumer dle a long-term strategy. If the person is in the almost never meet class action status because arbitration agreements may include class action for the duration, whatever that may be, the injuries are so specific to each individual action waivers.5 Such a ruling has many pro- the person’s cooperation will see the matter claimant. Therefore, filing a class action is a ponents seriously questioning the viability of through, and he or she will potentially serve bad idea if individual determinations must be this litigation method. Further, large actions as a good witness. It is also essential to verify made or if each plaintiff’s claim contains inher- mean added costs, and more likely than not, class counsel will advance these costs on a contingency basis. In addition, the class representative must learn to put others first. Behind every class representative stands a Many representatives have difficulty understanding that the needs of many outweigh large group of people, who will learn that the the needs of one, especially when the defendant offers to settle. A CASE OF THE GOTCHA. The gotcha sys- class is only as good as its representative. tem of liability occurs when statutory damages substantially outweigh any actual harm. What is the appropriate remedy? On the one hand, the individual’s capability of making rational ent peculiarities. class certification is denied because the defen- decisions on behalf of purported class mem- POWERINNUMBERS. When battling dant should not have to compensate plaintiffs bers. Psychiatric problems, memory loss, and the corporate giant, how does one quantify the for enormous statutory damages. On the other a lack of common sense likely signal an unsuit- magic number for the size of the class? hand, nothing good can come from turning a able class representative. According to Rule 23(a) of the Federal Rules blind eye to statutory misconduct. In the clas- ONEANDTHESAME. To satisfy the of Civil Procedure, the proposed class must be sic debate of policy versus procedure, the U.S. requirement of typicality, a class representative’s “so numerous that joinder of all members is Court of Appeals for the Ninth Circuit weighed claims must be similarly situated to the claims impracticable.” Courts decode this rule to in on behalf of procedure.6 As a result, defen- of other class members. In some circumstances, mean that, generally, the “numerosity” of a dants have been warned that a mere technical it may appear that a potential representative is class is at least 40 members.2 However, class violation may also be another class action law- suffering the effects of an unlawful common actions against big businesses may require suit waiting to happen. scheme. However, only verification through even bigger numbers.3 For example, Wal- CROSS YOUR T’S AND DOT YOUR I’S. coworkers, common knowledge, or Internet Mart had been facing the possibility of a class As class action lawsuits are a unique method research can reveal if the potential representa- of 1.5 million members. Recently, however, the of litigation, counsel pursuing this type of tive’s claim simply results from a singular bad U.S. Supreme Court denied certification, argu- litigation will likely face significant ethical experience. Beware of disgruntled employees ing that the class members did not share com- challenges. From beginning to end, your rep- masquerading as victims of a collective wrong. monality.4 Only the circumstances of each resentation must always conform to the AREALCLASSACT. Do not assume that case will determine whether the numerosity California Rules of Professional Conduct. Do a large number of injured individuals equates requirement has been satisfied. not let your quest for the perfect class repre- with class action status. Mass tort litigation is CAFA MAY COME FIRST. In 2005, sentative steer you into the unethical realm of not at all like class action litigation. Congress enacted the Class Action Fairness client solicitation. Remember that as class The media regularly analogizes class action Act, which expanded federal jurisdiction over counsel you are acting on behalf of a large litigation to the battle of David versus Goliath. class action lawsuits. Federal courts now have group of victims who have come to you not This reflects the ability of the class to provide jurisdiction to hear class actions in which the only seeking relief but also, more importantly, strength and validity to a host of individual amount in controversy exceeds $5 million protection. It is your continuous duty to pro- damage claims too small to bring by each and any class member has diverse citizen- vide them with competent and ethical repre- individual plaintiff. ship from any defendant. In practice, this sentation. ❖ Mass tort litigation, unlike the class con- means you should be prepared to litigate in cept, often combines large individual damages federal court, irrespective of your position as 1 FED. R. CIV. P. 23(a). in one trial. Therefore, in a mass tort setting, a plaintiff or defendant. While this act origi- 2 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F. 3d 473 (2d Cir. 1995) (citing 1 NEWBERG ON CLASS ACTIONS aggregate damages and class action prerequi- nally received criticism as a boon for big busi- 2d §3.05 (1985)), cert. denied, 515 U.S. 1122 (1995). sites are usually rendered unnecessary. ness, in practice plaintiffs often choose the fed- 3 See id., 47 F. 3d at 483. 4 DO CLASS MEMBERS HAVE SOME- eral forum. This is because the force of a Wal-Mart Stores, Inc. v. Dukes, ___ S. Ct. ___, 2011 WL 2437013 (June 20, 2011). THING IN COMMON? A class may sue or be nationwide class is unlike any other. 5 AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (Apr. sued only when there are questions of law or ANTICIPATE YOUR WEAKNESSES. 27, 2011). fact common to the class. The analysis should Consumers, shareholders, and employees 6 Bateman v. American Multi-Cinema, Inc., 623 F. 3d 708 focus on the defendant’s conduct and its com- have long championed the class action as the (9th Cir. 2010).

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AT THE COURTHOUSE

By Damon Thayer

Making the Last Word Count: Guidelines for Writing an Effective Reply Brief

aving the last word on an issue is valuable. This is especially true in a close case. So why do lawyers often treat H reply briefs like an afterthought? Lawyers may paint a masterpiece in their opening brief—whether it is in support of summary judgment, an appeal, or a simple discovery issue—but when it comes time to compose a reply brief, they use broken paint- brushes and leftover paint. By following 10 simple guidelines you can master the art of writing an effective reply brief and in the process increase your chances of prevailing in any given case. 1. FILE A REPLY BRIEF UNLESS THERE ARE STRATEGIC REASONS NOT TO DO SO. Given that reply briefs are optional, the

threshold consideration is always whether to KANEKO AMANE file one at all. Most judges and lawyers agree that the opportunity to have the last word on over such an obvious issue. leading authority supporting your position. an issue should not be squandered absent If opposing counsel conceded any signif- Weak arguments undermine your credibility. extraordinary circumstances. So unless the icant issues in the answering brief, point that In the immortal words of U.S. Supreme Court answering brief suffers from serious deficien- out for the court. If opposing counsel did Justice Oliver Wendell Holmes, “Strike for cies or is simply incomprehensible—meaning not address an issue raised in the opening the jugular, and let the rest go.”1 that responding to it might give opposing brief, highlight that fact and consider arguing Sometimes a misguided lawyer will throw counsel’s arguments more credit than they waiver. If the circumstances warrant such a every conceivable issue and argument into deserve—you should almost always file a discussion, unmask the misguided policy an opening brief and hope that something reply brief. underlying opposing counsel’s arguments sticks. That is bad enough, but do not make 2. FOCUS ON RESPONDING TO OPPOS- and explain to the court why your position matters worse by revisiting one of your flimsy ING COUNSEL’S ARGUMENTS. Believe it or is sounder. arguments in the reply brief. Some judges, not, lawyers sometimes forget the basic pur- But always remember the difference such as Judge W. Eugene Davis of the U.S. pose of a reply brief. A reply brief is not a con- between attacking opposing counsel’s argu- Court of Appeals for the Fifth Circuit, may densed version or executive summary of the ments and attacking opposing counsel. Having interpret this as a signal that your entire case opening brief. The focus of any reply brief the last word on an issue does not give you free is weak.2 Or, as cautioned by U.S. Supreme should be to respond to opposing counsel’s rein to take a cheap shot at opposing counsel. Court Justice Ruth Bader Ginsburg, because arguments. You should get to the heart of the In most instances, this will hurt your cause busy judges “work under the pressure of a matter as quickly as possible. The overarch- more than it will help it, even if opposing relentless clock,” a “kitchen-sink presenta- ing goal of an effective reply brief is to boil the counsel is in fact a liar and a cheat. tion may confound and annoy the reader factual and legal issues down to their bare 3. LEAVE OUT WEAK ARGUMENTS. more than it enlightens her.”3 essentials, fairly present both side’s positions, Your reply brief should highlight the strength 4. MAINTAIN CREDIBILITY. Having the and—in an ideal world—leave the court won- of your case. Focus on the important, win- last word on an issue imposes a heightened dering why opposing counsel is fighting you nable issues. Recite only the crucial facts and duty of candor. While you should always

Damon Thayer is an associate at Jenner & Block LLP in Los Angeles, where his trial and appellate practice spans a wide array of subjects involving complex commercial litigation.

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strive to maintain credibility with the court sense of what the case is about and what will suffice. On rare occasions, such as with by being fair with the facts and the law, this issues are paramount. Even when the briefs are a very complex case, you may correctly decide is a particularly momentous duty in reply read sequentially, your reply brief may be to request to file an oversized brief. And, once briefs. Expect close scrutiny of what you read days or weeks after the other briefs have in a blue moon, a pithy one-paragraph reply say, as courts are usually extra cautious about been read, meaning that the court may not brief will strike a nail into the coffin of oppos- believing what is asserted in a reply brief. remember much about your case. ing counsel’s case. Do not shy away from fil- Simply put, aggressively represent your Always keep in mind that judges are gen- ing a short reply brief if it will get the job done. client’s interests, but if one of your con- eralists who deal with a diverse array of legal A short reply brief tells the court that you are tentions does not pass the straight-face test, issues. Law clerks, especially at the federal confident about your position, and the points leave it out of your reply brief. level, are often fresh out of law school and may that you do make will likely receive greater 5. EMBRACE A THEME. Although this have no experience whatsoever in your case’s attention than these arguments would receive is important in all legal writing, it is critical subject area. With that audience in mind, if they were contained in a brief overloaded for a reply brief to have a theme, otherwise your reply brief needs to convey the legal with unnecessary text. known as a theory of the case. The theme principles necessary to adjudicate the dis- 9. PAY ATTENTION TO DETAILS. When should take center stage in the beginning pute. At the same time, however, your reply drafting a reply brief, it is common for lawyers of the reply brief and should be woven brief should discard any superfluous legal to paraphrase arguments or facts from their throughout the brief in your presentation of principles. Knowing exactly what informa- opening brief. There is nothing wrong with arguments and facts. The theme should pre- tion to put into the reply brief and what to this practice, assuming that you reexamine the sent the court with your client’s fundamental keep out can be a delicate balancing act. cited authorities and record before filing. By view of the motion or appeal. It should be a As one obvious example of what not to do, paraphrasing, you may have subtly changed simple, commonsense, and, if at all possible, Ninth Circuit Chief Judge Alex Kozinski has the meaning of your previous arguments or emotive message that radiates the righteous- poked fun at the following sentence that was factual statements, thereby leaving your asser- ness of your position. At the end of the day, contained in a brief he read: “LBE’s complaint tions unsupported, lacking in precision, too a busy court might not remember anything more specifically alleges that NRB failed to aggressive, or not aggressive enough. else about your case except your theme. Make make an appropriate determination of RTP Do not underestimate the harm that can it count. and TIP conformity to SIP.”4 The lesson here befall your credibility and ultimately your 6. DO NOT BE AFRAID TO GIVE YOUR is that if you absolutely have to use acronyms case if you mess up a case or record citation REPLY BRIEF SOME FLAVOR. If adding a or abbreviations in your reply brief, be sure or otherwise engage in sloppy cite checking. touch of personal flavor to your case is a to reintroduce what those space savers stand As an obvious example, the cases that you must, as it is for many lawyers and clients, for before using them. A judge should not relied on in your opening brief may no longer then the reply brief presents a perfect vehicle have to jump back to your opening brief to fig- be good law. for doing so. The opening brief is the time to ure out what you are talking about. 10. TELL THE COURT EXACTLY WHAT gain credibility with the court through rock- Almost as bad as inundating the court YOU WANT. A surprising number of liti- solid reasoning and careful analysis. Make with acronyms and abbreviations is using gants conclude briefs without stating specif- no mistake, the reply brief still needs to show unnecessarily complicated jargon. The court ically what they want the court to do. Do not lucid analysis of opposing counsel’s argu- should not have to refer to your opening brief expect the court to read your mind. Should ments. But with your credibility already estab- or look up the words you use to understand summary judgment be granted on all claims lished, you can use your reply brief as an your case. As astutely noted by Seventh Circuit and as to all parties, or just some? Should the opportunity to inject a punchy phrase, collo- Judge Richard Posner, “Lawyers should complaint be dismissed with or without prej- quialism, or metaphor into the case that sup- understand the judges’ limited knowledge udice? Is a straight reversal in order? Is a ports your view. To get the most bang for of specialized fields and choose their vocab- remand, perhaps with instructions to the your buck, the best place to add this flavor is ulary accordingly.”5 lower court, necessary? Is any alternative generally in the reply brief’s introduction 8. WRITE A REPLY BRIEF THAT IS NO relief requested? or conclusion. LONGER THAN NECESSARY. Just like know- If you have a decent case and follow these Of course, you should always take heed of ing that the sky is blue and the grass is green, 10 guidelines when drafting your reply brief, your audience and determine whether the many lawyers seem to believe that every reply the court should be prepared to give you risk of using such a tactic is worth the possi- brief needs to fill the maximum number of what you want by the time it reads your con- ble reward. Sometimes rhetoric will drive a pages allowed. Do not accept this as your clusion. Do not forget to be specific about point home, but other times it may do more mantra. A reply brief should only be as long what exactly that is. ❖ harm than good. as it needs to be to persuade the court that 7. MAKE THE REPLY BRIEF A STAND- your side should prevail. 1 OLIVER WENDELL HOLMES, SPEECHES 77 (1934). 2 Bryan A. Garner, Judges on Briefing: A National Survey, 8 ALONE DOCUMENT. An effective reply brief Court rules generally prescribe a maxi- SCRIBES J. LEGAL WRITING 1, 7 (2001–2002) (interview will make your case comprehensible to the mum length of 10 to 20 pages for reply briefs. with Judge W. Eugene Davis). court as a stand-alone document. A little- In addition, a judge’s “local local” rules may 3 Id. at 10 (interview with Justice Ruth Bader Ginsburg). known fact about the judicial process is that impose even stricter page limits, so be sure to 4 Alex Kozinski, The Wrong Stuff, 1992 BYU L. REV. 325, 328 (1992). a number of judges and law clerks read reply read them. Sometimes the maximum number 5 Indiana Lumbermens Mut. Ins. Co. v. Reinsurance Results, briefs before reading any other brief to get a of pages is necessary. Other times four pages Inc., 513 F. 3d 652, 658 (7th Cir. 2008).

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AT THE COURTHOUSE

By Robin Meadow

Protecting the Record for Appeal

t’s hard enough learning how to try a case problem, because ordinarily the reporter does proof before trial so you can be sure it is suf- without having to think about what hap- not transcribe them. Comply with Rule 2.1040 ficient. This is far more effective than impro- pens after the trial. But practitioners must of the California Rules of Court and submit a vising when the court sustains an objection. I never forget that what happens next may transcript. If you do not, the testimony “did JURY INSTRUCTIONS. Jury instructions depend entirely on how well they preserve the not happen.” are such a fertile source of error that they are record for appeal. In learning how to do this, new lawyers should pay particular attention to the areas in which even very experienced If witnesses are not specific, practitioners trial lawyers make mistakes.1 MAKING A RECORD. The court of appeal has “at least three immutable rules” for appel- should add the words themselves—for exam- late law practitioners: “[F]irst, take great care to prepare a complete record; second, if it is ple, “let the record reflect that the witness is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”2 indicating about two feet.” If there is no reporter present, there is no record. But simply ensuring that a reporter is EVIDENTIARY OBJECTIONS AND one of the first places an appellate lawyer recording the proceedings does not guarantee OFFERS OF PROOF. Most practitioners looks to for a basis for reversal. But trial that the words on the printed page of the know that an objection not made is waived. lawyers often do not spend enough time reporter’s transcript will make sense to the Here is another truism: In many situations, preparing the instructions, and they also fail court of appeal. Descriptions that may be an objection not ruled on is also waived.3 to keep track of what happens to them. clear to those watching whoever is speak- Be sure the court rules—and does so as Complicating the situation is the fact that ing—“about this big,” “coming from that promptly as possible. waiving instructional errors is extremely easy. direction,” “please compare that document A fundamental principle of appellate prac- Here are some basics: to this one”—are unintelligible to someone tice is that a trial court’s error cannot support • By statute, all jury instructions are “deemed who was not in the courtroom observing what reversal unless it was prejudicial.4 When an excepted [i.e., objected] to.”6 However, took place. Practitioners should use words, error results in the admission of evidence, because there are many exceptions to this and witnesses should use words, to make all the record will generally show the error’s rule, it is a mistake to rely on this automatic indications precise on the page. If witnesses impact. But the exclusion of evidence poses objection.7 State your position clearly on the are not specific, practitioners should add the a problem: There is no way the appellate record. words themselves—for example, “let the court can gauge prejudice without knowing • It is essential that the record reflect the ori- record reflect that the witness is indicating what the evidence would have shown. If this gin of each instruction, including any changes about two feet.” is not obvious from the record, you must made to it. The appellant cannot challenge a Ensure that your exhibits are both identi- make an offer of proof. jury instruction that the appellant requested, fied and admitted. You should confirm the sta- The requirements are strict. The offer so “[i]f the record does not show which party tus of exhibits with the clerk, the reporter, and “must set forth the actual evidence to be requested an erroneous instruction, the review- opposing counsel at the end of every trial produced and not merely the facts or issues ing court must presume that the appellant day, and with the court before the jury begins to be addressed and argued.”5 The best way requested the instruction and therefore cannot deliberations. to do this is by a written submission that complain of error.”8 VIDEO DEPOSITIONS. Video depositions includes all the documents and testimony the • If the court requires you to settle jury and other sound recordings pose a special party is offering. If possible, draft the offer of instructions off the record, be sure to state your

Robin Meadow is a senior partner with the appellate firm of Greines, Martin, Stein & Richland LLP. He has written and lectured extensively about appellate law and technology for appellate lawyers.

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position on the record regarding any instruc- decision in a bench trial for purposes of appel- is to identify omissions—such as failures to tions as to which the record is not already late review. address principal controverted issues—or clear. This is particularly important when the Statements of decision involve the doctrine ambiguities. court crafts its own language. of implied findings, a principle of appellate law NOTICE OF APPEAL. Timing is every- • Be sure to make every instruction you offer that “requires the appellate court to infer the thing. The deadline for filing a notice of appeal part of the record, either by filing it or read- trial court made all factual findings neces- is jurisdictional. Missing the deadline means ing it into the record. sary to support the judgment.”12 According to that your client’s appellate rights are absolutely, • Answers to questions from the jury during the court of appeal: irretrievably gone. Because posttrial motions deliberations are effectively supplemental The doctrine is a natural and logical can extend the deadline for filing the notice instructions. The same rules about making a corollary to three fundamental prin- of appeal, it is crucial to review every appli- record apply. ciples of appellate review: (1) a judg- cable statute and rule carefully and to calcu- SPECIAL VERDICTS. In a special verdict, ment is presumed correct; (2) all late, and recalculate, the time.19 the jury only finds facts, and the court enters intendments and presumptions are And remember: unlike almost every other judgment based on those facts.9 Special ver- indulged in favor of correctness; and trial-level litigation deadline, the deadline for dicts can be valuable. They explain the jury’s (3) the appellant bears the burden of filing a notice of appeal (as well as most post- verdict and may provide ways to attack or sup- providing an adequate record affirma- trial motions) runs from the date of mailing port the verdict in posttrial motions and on tively proving error.13 of the notice of entry of judgment—with no appeal. However, they are also fraught with If there is no statement of decision, the extension for service by mail.20 ❖ risks. The most important is the possibility that appellate court will presume that the trial the special verdict may fail if it omits an indis- court relied on whatever properly admitted 1 For more detailed discussions on appellate law topics, pensable finding: evidence and legal analysis support the judg- visit the Los Angeles County Bar Association’s online publication Appellate Tips for Trial Lawyers, for members The requirement that the jury must ment and that it rejected all contrary evi- only at http://www.lacba.org/showpage.cfm?pageid=8556. resolve every controverted issue is one dence and argument. But if the appellant 2 Protect Our Water v. County of Merced, 110 Cal. App. of the recognized pitfalls of special ver- properly requested a statement of decision 4th 362, 364 (2003). 3 See Gallant v. City of Carson, 128 Cal. App. 4th 705, dicts. The possibility of a defective or and objected to any omissions or ambiguities 712-13 (2005); City of Long Beach v. Farmers & Merchs. incomplete special verdict, or possi- in a proposed statement of decision, the court Bank of Long Beach, 81 Cal. App. 4th 780, 784 (2000). bly no verdict at all, is much greater of appeal may not presume unfavorable find- Although, as these cases note, it used to be the rule that than with a general verdict that is tested ings as to those issues.14 Moreover, a state- unruled-on objections were also waived in summary judgment motions, the California Supreme Court disap- 10 by special findings. ment of decision may reveal that the trial proved that rule last year. Reid v. Google, Inc., 50 Cal. 4th Another risk is inconsistencies. A general court did not actually rely on certain evi- 512, 527 n.5 (2010). verdict with special findings “will not be set dence, relied only on inadmissible evidence, 4 Soule v. General Motors Corp., 8 Cal. 4th 548, 574, 580 (1994). aside unless there is no possibility of recon- or reached its decision by an erroneous legal 5 People v. Schmies, 44 Cal. App. 4th 38, 53 (1996); see ciling the general and special verdicts under analysis. EVID. CODE §354. any possible application of the evidence and For these reasons, only the appellant wants 6 CODE CIV. PROC. §647 (Automatic exception applies to instructions.” However, “there is no such a statement of decision; the respondent is “giving an instruction, refusing to give an instruction, or modifying an instruction requested.”). presumption in favor of upholding a special better off without one. So except for one-day 7 See Agarwal v. Johnson, 25 Cal. 3d 932, 947-51 (1979), verdict.”11 trials, for which you must request a state- overruled on other grounds by White v. Ultramar, Inc., 21 To achieve the desired results from a spe- ment of decision “prior to the submission of Cal. 4th 563, 574 n.4 (1999). 8 Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th 15 cial verdict, you should: the matter for decision,” wait to see what the 655, 678 (2008) (emphasis added). • Review a proposed special verdict carefully court decides. 9 CODE CIV. PROC. §624. for omissions and inconsistencies. A statement of decision is available “upon 10 Myers Bldg. Indus., Ltd. v. Interface Tech., Inc., 13 Cal. App. 4th 949, 960 (1993) (internal quotation marks, • Be sure that no answer to a question can the trial of a question of fact” and in certain brackets, and citation omitted). trigger uncertainty about how the jury should other proceedings.16 They generally are not 11 City of San Diego v. D.R. Horton San Diego Holding answer other questions. available for motions except when the motion Co., Inc., 126 Cal. App. 4th 668, 679 (2005) (internal Scrutinize the verdict as rendered to be is more akin to a fact-finding trial—in which quotation marks and citation omitted); see generally • Zagami, Inc. v. James A. Crone, Inc., 160 Cal. App. 4th 17 sure there are no omissions or inconsistencies. case the one-day-trial requirement governs. 1083, 1091-92 (2008). Problems sometimes do not become apparent Always check the governing statutory scheme 12 Fladeboe v. American Isuzu Motors Inc., 150 Cal. App. until the verdict has been rendered. and case law. 4th 42, 58 (2007) (citation omitted). 13 Id. • If there is a problem, speak up before the The request should seek the factual and 14 CODE CIV. PROC. §634. jury is discharged. Failure to do so may waive legal basis for the court’s decision “as to each 15 CODE CIV. PROC. §632. any error. of the principal controverted issues at trial.”18 16 Id.; see also CODE CIV. PROC. §1291; FAM. CODE §§2127, 3022.3. STATEMENTS OF DECISION. Few trial It should not reargue the case. The state- 17 See, e.g., Gruendl v. Oewel P’ship, Inc., 55 Cal. App. 4th lawyers—and surprisingly few judges— ment-of-decision process presupposes that 654, 660-61 (1997) (motion to add judgment debtor). understand statements of decision. Most you have lost and that your goal is simply to 18 CODE CIV. PROC. §632; see CAL. R. CT. 3.1590. 19 lawyers see them as an opportunity to reargue have the trial court explain why. Likewise, the See CODE CIV. PROC. §§659-663a and CAL. R. CT. 8.104, 8.108. See also Honey Kessler Amado, Beat the Clock, the case, but they are not. Their one purpose primary reason for you to respond to oppos- LOS ANGELES LAWYER, Mar. 2010, at 26. is to nail down the basis of the trial court’s ing counsel’s proposed statement of decision 20 CODE CIV. PROC. §1013.

58 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 1 SurvivalGuide2011_master.qxp 8/24/11 3:09 PM Page 59

SECTIONTHE WORK NAME OF A LIFETIME

By Timothy A.Byline Tosta

The Practice of Law: HEADLINEYour Job, Your Career, or Your Calling?

fter seven years as a hospice volunteer work as a “job?” Were his sacrifices, as a civil When, in that hectic period, do most people and four years as an integral coach to the rights leader, part of a “career?” Is there any make the time to inquire into life’s meaning? legal community, I have witnessed doubt that his work as a preacher, as a civil But, ask yourself now: How do you A tremendous suffering—remarkably, rights leader, as a community member were approach this finite existence called “life?” Is more among those “living” in our legal com- not coherently joined, sustained, and invigor- it a container to be filled? Or is it, by the munities than those dying in our public hos- ated by his “calling” to change racial relations nature of its inevitable closure, a gift to be pitals. What is it about our work that brings in this country, once and for all? savored? If the former, you will find plenty to about such outcomes? The example of King shines a light on keep you busy. You will find a mate, procre- In 2002, a middle-aged partner of a promi- what is at the heart of a fulfilled life—your ate, raise your progeny, acquire things, pur- nent San Francisco law firm was exiting the relationship to your own mortality. You know sue status, compete, and conquer. If the lat- UCSF Cancer Center after a quarterly check- that your death is inevitable and that your life ter, you will find yourself slowing down and up. It had been 10 years since his original span is decreasing continuously. You know heightening your awareness of all that is prognosis when he was told that he might only that your life expectancy is uncertain and around you. You will observe life in all its par- have two years left to live. As he reached the that death will come whether or not you are ticulars, opening up your awareness to all street door of the center, which also gave prepared. You also know that when death that it offers, expanding your curiosity of access to the adjacent hospital, he ran into a comes all of the status, power, and money that what more you want to experience, learn, founding partner of his firm, a man 15 years you have accumulated cannot help you. So explore, and discover. You will build and sus- his senior whose cancer was metastatic and what really matters? What do you believe tain meaningful relationships. highly advanced. They had seen one another you are here to do? What is your purpose? Imagine that you are 95 years old. Your life at the office that morning, but this would be What gives your life meaning? has gone exactly as you had wished. You are the last time that they would meet. The sen- One of the difficulties of our modern life fulfilled, happy, and at peace. As you look back ior partner died three days later. The surviv- and upbringing is that we rarely are invited to from that place, imagine what your life would ing partner then vowed that his last day in life consider these fundamental issues. As you have to have been to deliver you there. How would not be in the office, unless his work proceed through primary and secondary important were your contributions to your became his calling. school, acquiring skills and making a record community? How significant were your rela- It is said that one’s work is either a job, a adequate to allow you to compete for space in tionships with family and friends? Did you career, or a calling. A job is something that you a university of your choice, little time is given leave time to follow your passions? If so, what do for money and little more. A career is a lad- over to introspection. Perhaps in college you were they? Did they include travel, music, der that you climb for status, power, and are able to study philosophy or psychology, art, further education, public service, or char- money. It is externally referenced, and success but then the quest for graduate school entry itable works? Is the life that you are leading is based upon meeting the expectations of leaves little room for actual contemplation of now likely to take you to that place of fulfill- others, not your own self-fulfillment. A call- the great ideas of human existence offered in ment, happiness, and peace? If not, why not, ing may include status, power, or money, but your undergraduate years. In law school, the and what are you going to do about it? it is self-referencing. It is a professional life functional equivalent of boot camp for Recognize that the answer lies in pursuing lived in congruence with your passions. lawyers, there is the constant pressure and a path. Outcomes flow from the journey itself, Passions are rarely confined to the profes- competition for top grades and then the antic- not from reaching the destination. Awareness sional domain. If your professional life is your ipation of, and preparation for, the dreaded bar is fundamental. Can’t you find a precious few calling, it is because you are in pursuit of exam, all serving as a constant source of dis- moments each day for quiet introspection? It your life’s purpose, which extends well beyond traction. Having run that tortuous gauntlet, you may be meditation, a yoga practice, prayer, or your work existence. Consider Martin Luther may have been offered a job—not necessarily playing music. The object is to create space for King. Do you think he ever considered his the one you sought, but a job nonetheless. silence, to allow you to drop deeper into

Timothy A. Tosta is a cancer survivor, seasoned hospice volunteer, and a partner in the San Francisco office of Luce, Forward, Hamilton, & Scripps LLP, where he specializes in land use law.

Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 59 1 SurvivalGuide2011_master.qxp 8/24/11 3:09 PM Page 60

yourself, to allow the myriad of thoughts rac- will find yourself in the company of those toxic to you. You know who they are. Fourth, ing through your mind to be observed but not who naturally support you because you are take care of your body. Take up a slow move- acted upon. They are, after all, only thoughts. following your passions and are generous, ment practice such as yoga or Qi Gong to As you learn to create space in your mind you open, and forthcoming. This all takes time. It learn where and how you carry stress in your will find that your awareness grows. With doesn’t happen at once. In fact, it can’t, because body so that you may find ways to discharge your growing awareness you can open your you are continuously evolving, discovering, it. It will make for better health and mental curiosity and find new perspectives that shift and modifying your life to fit the ever-chang- clarity. Fifth, listen—truly listen—to others. your beliefs and judgments about how life ing circumstances of the world in which you While giving others the gift of your attention, should be. You become aware of your inher- live. But this time is neither futile nor frustrat- you allow them to go deeper into their own ent goodness and generosity. You learn the sig- ing, because you are pursuing your path and thoughts and allow yourself to become nificance of human relationships. not that of someone else. acquainted with the sources of your reactions. From this awareness, you acquire an ini- So how does all of this fit into where you You will learn that there are minds that oper- tial inkling of what your purpose in life might find yourself now? First, you cannot begin to ate quite differently from your own. You will be. It doesn’t come all at once. As you proceed consider what to change until you know create a capacity for understanding those dif- further down the path of awareness, your where you might be going. Take time to be ferences and develop tools for reconciling purpose evolves and becomes more elabo- with yourself. That time exists in your life, them, always of help in effective lawyering. rate. As your purpose takes shape, something right now—even if you think otherwise. As All along you are building capacity to extraordinary happens. You find an ability to you begin to pay attention to the subject of attain that fulfilled, happy, peaceful life you identify goals and set priorities which support purpose, you will find it beginning to emerge seek. You will make choices that feed your pas- your purpose. Other to-dos, largely creatures from what you are reading, or listening to, sions. You will build relationships that nurture of your habitual thinking imbedded from from conversation, and from inspiration. you as you increase your capacity to nurture your culture and upbringing, can fall by the Second, what parts of your current life others. You will bring your life into balance. wayside, since they are not truly yours. support what you anticipate your purpose And, if you find that your current work is not As you pursue your goals by following might be? Observe yourself, keep a journal. Try allowing you to follow your path, you may your priorities, you find relationships that to expand those elements of what you do to see elect to change your workplace, your spe- sustain and nurture you. Your life becomes if more is truly better. Third, study your rela- cialty, or even your career. Remember, if it isn’t balanced because there is an alignment tionships. Spend time with people who inspire, your “calling” then it’s just work. You deserve between who you are and what you do. You support, and nurture you. Avoid those who are much more, as does the world from you. ❖ There’s Strength in Numbers

THE BARRISTERS SECTION brings opportunities for professional devel- Join the Los Angeles opment and networking to new and young lawyers in Los Angeles County County Bar Association and throughout California. If you are a member of LACBA and are either 36 years of age or younger or have been admitted to practice for five Barristers and become years or less, you are eligible for Barristers membership.

part of the action of Volunteers are always welcome! California’s strongest Here are just some of the many opportunities available to Barristers: association of new and ✔ Bench and Bar Committee ✔ Legal Profession Committee young lawyers ✔ Law Student Outreach Committee ✔ Networking Committee ✔ Continuing Legal Education ✔ Pro Bono Committee Committee ✔ Government Relations Committee

For more Information, check out the Barristers’ Web pages at www.lacba.org/barristers

PLEASE DON’T FORGET: To join the Barristers for 2012, include the $35 Section dues when you renew or sign up for your general LACBA membership this fall.

60 Los Angeles Lawyer’s Survival Guide for New Attorneys 2011 Don’t let the fear of running your practice eat you alive.

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