2006 California State Bar Meeting LACBA2006-07 Directory PULLOUT SECTION
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EARN MCLE CREDIT Hidden Implications of Arbitration Clauses page 35
MEET andCONFER Los Angeles Superior Court Judge Michael L. Stern offers insight on the new local trial preparation rules page 26
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26 Meet and Confer BY JUDGE MICHAEL L. STERN New Los Angeles Superior Court trial preparation rules require greater coordination and cooperation between opposing counsel
35 Clause and Effect BY MICHAEL A. GEIBELSON AND BERNICE CONN Standard arbitration clauses frequently transfer the power to decide arbitrability from the courts to the arbitrator
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44 Flight or Fight BY HENRY TASHMAN, JENNIFER BROCKETT, AND ROCHELLE WILCOX Under the fugitive disentitlement doctrine, those who flee the jurisdiction of the court will lose their right to appeal
The magazine of The Los Angeles County LosAngelesLawyerBar Association
DEPARTMENTS
10 President’s Page 53 Computer Counselor Your republic…if you can keep it Should attorneys use Macs? BY CHARLES E. MICHAELS BY CAROLE LEVITT AND MARK ROSCH
12 Barristers Tips 60 Closing Argument When a general counsel is your client Step away from the laptop, please BY LAURA D. EACH BY DANA H. SHERIDAN
14 Practice Tips 57 Classifieds Local regulation of alcohol licensees BY STEVEN MEYERS AND STEPHANIE J. STUART 58 Index to Advertisers
52 By the Book 59 CLE Preview The Cybersleuth’s Guide to the Internet Cover photograph: Tom Keller REVIEWED BY JIM ROBINSON As an Expert Witness in Real Estate Litigation, Attorney LAWRENCE H. JACOBSON LosAngelesLawyer VISIT US ON THE INTERNET AT www.lacba.org/lalawyer has consistently been on the Winning Team E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD • Real estate and • Lawyer malpractice • Interpretation Chair mortgage brokers’ in business and real of real estate JACQUELINE M. REAL-SALAS standard of care estate transactions documents Articles Coordinator CHAD COOMBS Practicing real estate law in California since 1968. Member, Board of Governors, Beverly Hills Bar Association. Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. JERROLD ABELES DANIEL L. ALEXANDER LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967 HONEY KESSLER AMADO ETHEL W. BENNETT Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com R. J. COMER LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212 ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG DANIEL A. FIORE STUART R. FRAENKEL MICHAEL A. GEIBELSON TED HANDEL JEFFREY A. HARTWICK STEVEN HECHT LAWRENCE J. IMEL SCOTT KLOPERT JOHN P. LECRONE PAUL MARKS SEAN MORRIS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ GARY RASKIN DAMON RUBIN KURT L. SCHMALZ DAVID SCHNIDER HEATHER STERN GRETCHEN D. STOCKDALE TIMOTHY M. STUART KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER PATRIC VERRONE MICHAEL WISE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO Account Executive MARK NOCKELS Account Executive PATTY MEDINA Marketing and Sales Coordinator TAL EDELSTEIN Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August and a special issue in the fall, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. Copyright ©2006 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by Banta Publications Group, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its mem- bers. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.
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Some insurance products in this program may be underwritten by carriers not licensed in California. CA Insurance License #: 0795465 4B1BB006 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-1881 Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS: President CHARLES E. MICHAELS President-Elect GRETCHEN M. NELSON Senior Vice President DANETTE E. MEYERS Vice President DON MIKE ANTHONY Treasurer JULIE K. XANDERS Assistant Vice President ALAN K. STEINBRECHER Assistant Vice President LINDA D. BARKER Assistant Vice President JOHN D. VANDEVELDE Immediate Past President EDITH R. MATTHAI Executive Director STUART A. FORSYTH Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES P. PATRICK ASHOURI NICOLE C. BERSHON GEORGE F. BIRD JR. DANIEL S. BISHOP JOHN M. BYRNE JOHN CARSON ANTHONY PAUL DIAZ STACY L. DOUGLAS ALEXANDER S. GAREEB ANTONIO J. GONZALEZ BRIAN S. KABATECK KARL H. KNICKMEYER JR. ROBERT N. KWAN PHILIP H. LAM DAVID A. LASH LAWRENCE E. LEONE RICHARD A. LEWIS CINDY J. MACHO ELAINE W. MANDEL DAVID F. MICHAIL Local Retired Judge Offers JEFFREY P. PALMER ELLEN A. PANSKY THOMAS F. QUILLING SUSAN ERBURU REARDON $5000 Reward. ROGER D. REYNOLDS KELLY RYAN DEBORAH CRANDALL SAXE MARGARET P. STEVENS KIM TUNG Judge Peter S. Smith (Ret.) recently completed The Magistrates: GAVIN HACHIYA WASSERMAN ERIC A. WEBBER Murder at the Rose Bowl, the eagerly awaited sequel to his AFFILIATED BAR ASSOCIATIONS award-winning novel, The Magistrates. BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES To promote both books, Judge Smith is having a contest. If you CULVER-MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION can correctly answer 10 simple questions based on the GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION contents of both novels, you could win FIVE THOUSAND ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES DOLLARS! JOHN M. LANGSTON BAR ASSOCIATION JUVENILE COURTS BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA L.A. County District Attorney Steve Cooley said, “Murder at LAWYERS' CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES the Rose Bowl would make an extraordinary movie.” LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION HURRY! Details at SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION www.jadapromotion.com SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
6 Los Angeles Lawyer October 2006 63(&,$/%8//(7,1
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9OUR "OARD HAS VOTED TO ISSUE AN DIVIDEND TO ALL POLICYHOLD ERS OF RECORD AS OF .OVEMBER 4HE DIVIDEND WILL BE BASED ON THE PREMIUM PAID BY THE POLICYHOL DER ON A ONE YEAR POLICY WITH AN EFFECTIVE DATE BETWEEN .OVEMBER AND /CTOBER 6RDUH\RXWKLQNLQJ ´:KHQGR,JHWP\PRQH\"µ )F YOU ARE AN ELIGIBLE POLICYHOLDER OF RECORD AS OF .OVEMBER YOUR CHECK WILL ARRIVE DURING THE $ECEMBER HOLIDAYS )T IS ALSO WORTH REMEMBERING THAT ,-)# HAS BEEN A PROVIDER OF BENElTS FOR SEVERAL DECADES 4XHVWLRQ :KDWGRHV -#,% !S A 3TATE "AR OF #ALIFORNIA APPROVED -#,% PROVIDER WE ARE PI IN LOSS PREVENTION EDUCATION AND OFFER A RANGE OF SEMINARS SEL ONEERS F STUDY AND ONLINE PROGRAMS EXCLUSIVELY FOR OUR MEMBERS AT LITTLE OR NO COST A VALUE OF OVER " #LAIMS &REE $QVZHU ,ONGEVITY #REDITS CAN START AFTER THE lRST YEAR AND h0REFERRED STATUS CAN BE EARNED AFTER JUST CONSECUTIVE YEARS n RESULTING v IN A \HDUVRI OR MORE 0REMIUM #REDIT 'LYLGHQGV !- "ESTS 2ATING OF h!v %XCELLENT WE ARE INSURANCE SPECIALISTS 0ROFESSIONAL ,IABILITY COVERAGE FOR #ALIFORNIA LAWYERS IS THE O NLY PRODUCT WE OFFER 4HROUGH SOUND AND DISCIPLINED UNDERWRITING OUR 3TANDARD 0ROGRA M RATES HAVE BEEN THE SAME FOR OVER YEARS IMAGINE THAT
6ISIT US AT WWW,-)#COM OR CALL /$:<(56·0878$/,1685$1&(&203$1<:HVW(PSLUH$YHQXH%XUEDQN&$ $IVIDENDS ARE PAID AT THE SOLE DISCRETION OF THE #OMPANYS "OARD OF $IRECTORS AND PAST DIVIDENDS DO NOT GUARANTEE THE PAYMENT OF FUTURE DIVIDENDS From the Chair BY JACQUELINE M. REAL-SALAS
t is early in the morning and still dark outside. You get to the office and turn on the lights. You are the first to arrive. As you approach your desk you can see that your phone message light is already on. I You will soon discover that you have several new e-mail messages as well. As you sit in your chair—and hopefully you have a fancy ergonomic chair, because you will be sitting in it for a very long time—you hear in your head a loud bell and a voice saying, “And they’re off!” For the average lawyer, this is how the day begins. It is a daily race, and all bets are off. Your inbox has several inches of paper in it, but your outbox is noticeably slim- mer. Several files sit on and around your desk, your priorities for today. Your cal- endar tells you that this will be yet another workday when you will not have time for lunch. As the day progresses, you volunteer, or others volunteer you, to handle a new matter. When asked when you can complete the new work, you probably cannot answer the question with certainty. You know you are behind in the work you have desig- nated as your priorities, and you are not quite sure how much must be done before you can tackle fully your newly added responsibility. Your inability to give your col- leagues a firm deadline troubles you. Many hours have gone by and it is now time for a break. You stretch in your ergonomic chair while gazing at your view of the busy city, extending your arms and adjusting your back as you turn from side to side. The stretch is your exercise for the day and you are now proud of yourself for multitasking. It is dark outside again. Your phone message light is back on, and you have some new e-mail messages. The cleaning crew came and went, as you tried to concentrate with the vacuum cleaner running in the background. Your inbox looks as full as when you arrived that morn- ing. You decide you have had all you can take for one day. You turn off the lights on your way out. If you are like me, it is not the amount of work or the long hours that raise your blood pressure. Rather, it is the lack of time to reflect on the day that just finished and the new day that will soon begin. Taking time to reflect provides an opportu- nity to assimilate the events of the day. It involves looking back and looking forward while applying lessons learned to improve future outcomes. Reflecting involves not only thinking about work but also thinking about family, friends, employees, col- leagues, and a new direction to your economic future. It is a time to search for new ideas, gain new perspective, and set goals. Reflection is also critical for time management. It can be an opportunity to get organized and prioritize. It provides a feeling of having control over your work and personal life. Even though the work awaits while you pause to reflect, at least you have a better grasp of the urgency and time that needs to be allocated to each task. Reflection requires a relatively inexpensive investment of just a few minutes a day, but the potential return is enormous. In my past life as a busy sales person, I used to religiously book reflection time on my calendar. Taking time to reflect reduced my anxiety and made me a happier and more successful person. There was a direct, positive correlation between time invested in reflection and sales production. Now that I am a busy lawyer, I have revived this good old habit. If you are not already taking time for daily reflection, I encourage you to try it for 30 days. If you adopt reflection as one of your new habits, I am certain you will find that its rewards are priceless.
Jacqueline M. Real-Salas is a partner at Calleton, Merritt, De Francisco & Real-Salas, LLP, where she specializes in estate planning, trust administration, probate, and elder law. She is the chair of the 2006-07 Los Angeles Lawyer Editorial Board.
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Your Republic…If You Can Keep It
FROM THE TEAPOT DOME OIL SCANDAL in 1924, to Watergate, preference. Judicial independence does not mean that judges should Enron, and Abu Ghraib, we have painfully relearned that whenever not be held accountable. Indeed they should be—but accountable for there is an unchecked accumulation of power or the temptation of the right type of things. fame or money, governmental, corporate, and nonprofit abuses will I am concerned that many Americans don’t understand the essen- almost always inevitably follow. Human self-interest always tempts, tial role that checks and balances play in our democracy. I am con- and it frequently trumps the collective greater good of the people and cerned about the disappearance from our schools of requirements for their institutions. the study of history, civics, and government. A recent Harris Poll com- History has shown us that citizens of a republic may, in times of missioned by the American Bar Association revealed that: peril, turn against the republic itself. More than 2,000 years ago, Brutus • 40 percent could not identify the three branches of government. slew Julius Caesar because Brutus feared that Caesar’s legions would • 48 percent did not know what “separation of powers” means. destroy the Roman republic. More than 200 years ago, Napoleon seized power and over- threw France’s First Republic. During the Our courts are—and should be—expected to decide cases as 1920s, the Italians willingly turned their democ- racy over to their popular Prime Minister Beni- to Mussolini. In 1934, more than 50 percent determined by law and precedent and not by poll results. of the German electorate approved Adolf Hitler and his coalition partner’s complete assump- tion of political and military power. In such per- ilous times, only the judiciary remains to protect individual liberty. • 44 percent did not understand the responsibilities of the judiciary. When the framers of the U.S. Constitution arrived in Philadelphia We have a duty as attorneys to educate others about the meaning of in 1787 to consider a new form of government for the United States, judicial independence and to act on behalf of the judiciary, who can- they worried about the accumulation of governmental power. They not—and should not—be political advocates for themselves. wanted to make sure that the government had enough power to Your Association is trying to meet that obligation. It sponsors the solve the country’s problems, but not too much to ride roughshod over Dialogues in Freedom program, chaired by David Parker, in which individual liberties or the rights of the states. The framers carefully volunteers go into classrooms to teach about the law, government, crafted a constitution with a system of separated powers wherein each and the role of the judiciary. This June, the Association cosponsored branch would check the power of the other two. Commenting on the with Loyola Law School the first Journalist Law School, through which powers of the three branches of government in The Federalist No. 78, we helped bring 34 journalists to Los Angeles for a three-day program Alexander Hamilton wrote of the dangers of unchecked power: “The to teach the principles and fundamentals of law. Journalists from ABC, executive not only dispenses the honors, but holds the sword of the CBS, NBC, PBS, the Wall Street Journal, Chicago Tribune, the Daily community….The legislature not only commands the purse, but pre- Journal, and the Los Angeles Times were among those who attended. scribes the rules by which the duties and rights of every citizen are What we can do, we must do, for these are dangerous and trying to be regulated.” Hamilton and other framers viewed the judicial times. We are fighting a long-term war against forces that we do not branch as “the least dangerous to the political rights of the Constitu- yet fully appreciate nor clearly understand. We will face new challenges tion.” The creation of the judiciary as a third, separate branch was that will be difficult and costly, and through it all we must be ready designed to protect judges and ensure the independence of a branch to sacrifice and to fight for the republic and its institutions. that had “neither force nor will but merely judgment.” In 1787, at the end of the Constitutional Convention, an anxious Lately, the role of the courts in our tripartite form of government Philadelphia woman asked Benjamin Franklin, “What form of gov- has been the subject of intense political focus. On the national level, ernment have we got?” Franklin thought for a moment and replied, there have been attempts to influence judicial decision making— “A republic, madam, if you can keep it.” Franklin had great faith in from the introduction of bills to strip courts of jurisdiction to calls the future of America and the American people. His faith was not mis- for withholding funds and threats of impeaching judges who cited for- placed, for Americans have shown themselves to be a noble, great, eign law or reached results that some find objectionable. In California, and resolute people, who, when aroused, have met every challenge. misunderstanding abounds about how our courts decide cases and If we, as lawyers, meet our obligations to preserve the rule of law, the the basis upon which those decisions should be made. Those who dis- republic will survive. agree with decisions have, at times, criticized the results based on polit- ical considerations rather than on legal analysis. Charles E. Michaels, vice president and general counsel of LAACO, Ltd., is 2006- Our courts are—and should be—expected to decide cases as 07 president of the Association. He can be reached at charles.michaels determined by law and precedent and not by poll results or popular @laaco.net.
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When a General Counsel Is Your Client
A GENERAL COUNSEL’S PRIMARY OBJECTIVE is to ensure that the the next time a claim is made and the claims adjustor suggests hir- company for which the counsel works receives legal services that are ing that lawyer’s firm, it is unlikely that the general counsel will sup- reasonable, valuable, and necessary. Outside lawyers hired by the com- port an attorney who did not improve the company’s bottom line. pany can maintain good relations with a general counsel by pursu- Insurance costs can make or break a client, and this should directly ing the same goal. The way this goal is accomplished will depend upon affect how an attorney advises a client. the client’s industry, management, and business objectives. However, In addition, outside litigators should not forget that in-house some particular issues tend to affect most California businesses with legal departments are assets to a litigation. A good in-house lawyer general and outside counsel. is going to be familiar with the company’s operations, the job duties For example, outside counsel should be careful about billing, of various types of employees, and the political climate within the com- because an in-house attorney is going to recognize the difference pany. Usually, in-house counsel is also familiar with and understands between billing for its own sake and billing for work that is going to advance the client’s position. In-house attorneys are sophisticated A good in-house lawyer is going to be familiar with the company’s clients and know that a letter should not cost $10,000 in billable hours, regardless of its con- tent or how prominent the law firm. They also operations, the job duties of various types of employees, and know that because discovery summaries and constant updates do not bring much value to the litigation, their use should be limited. the political climate within the company. Usually, in-house counsel Alternatively, general counsel understand the need and cost of depositions, motions for sum- mary judgment, and thorough legal research. is also familiar with the personalities involved. The bottom line is that attorneys must bring added value—not just billing. Outside attorneys should also remember that while general coun- sel may not always complain when they receive the bill, they will the personalities involved. This knowledge can be a huge advantage remember it when deciding whom to retain on the next case. to a litigator, while saving time and money for the client. However, Next, outside counsel should make sure they understand the role if outside attorneys ignore this asset, they may spend substantial that insurance plays in the client’s industry. If the client is in a high- time searching for the answer to a question that the general counsel liability industry (e.g., construction or transportation), then how an could have answered in seconds. insurance portfolio is utilized will be a key aspect of business oper- Finally, outside counsel should not fear losing the client by bring- ations. What role insurance plays in the client’s industry will affect ing in specialists when necessary. The reality is that if an attorney has when matters are tendered, to which carriers they are tendered, and a decent relationship with the client, this fear is misplaced. By the time how the defense should be handled. the outside attorney sees a need for a specialist, the general counsel Even when insurance policies provide coverage for litigation, probably has seen it too. If the general counsel has to mention it first, general counsel should not be ignored, even when the general coun- this may cause damage to the attorney-client relationship, because the sel is not involved. If the client business has a low deductible policy, general counsel will question the judgment of the outside attorneys its loss runs are not important to it, and there is little possibility of and lose faith in their ability to set their egos aside and admit to hav- any claim exceeding the policy limits, the general counsel will not want ing limitations. No attorney is proficient in all areas of law, and fail- to be involved with the matter. On the other hand, if the client has ure to acknowledge that fact may lead to serious problems. a high deductible, loss runs are important, or the claim could exceed There is no secret to impressing the general counsel—and expen- the policy limits, the general counsel will probably take a more sive suits, fancy meals, or the gift of gab are not it. Providing meth- hands-on approach. odical, efficient, and practical legal services that improve the com- General counsel will also expect the company’s insurance defense pany’s bottom line will garner far more respect in the eyes of a counsel to be mindful of in-house opinions and not simply obey the general counsel and will go much farther to ensure a regular stream insurance adjustor without consideration of the client’s wishes. This of future work. may seem obvious to some, but it is unfortunate how many insurance defense lawyers show little or no respect for the insured even when Laura D. Each has been general counsel for C.A. Rasmussen, Inc., for the past the insured has six-figure deductibles and foots the entire defense cost. four years and is a sole practitioner representing several other closely held The outside lawyer may not face the consequences immediately, but companies in a general counsel capacity.
12 Los Angeles Lawyer October 2006 BroadbandAccess $ UNLIMITED 59.99 monthly access Practice Tips BY STEVEN MEYERS AND STEPHANIE J. STUART
Local Regulation of Alcohol Licensees
IN CALIFORNIA, THE REGULATORY AUTHORITY for alcohol sales, consumption, production, and transportation is vested in the Department of Alcoholic Beverage Control, which has the responsi- bility for the issuance of liquor licenses and the regulation of exist- ing licensees. As authorized under the Twenty-first Amendment to the U.S. Constitution, the California Legislature has created a compre- hensive regulatory environment governing all aspects of alcoholic bev- erage sales and services, but the role of local government in preventing the deleterious effects of alcohol sales and consumption is less defined. What a local government can do to mitigate social, economic, and crim- inal consequences of alcohol use within the confines of a preemptive state regulatory scheme is therefore worthy of a detailed examination. Few observers of the social challenges posed by alcohol abuse would question that neighborhoods where bars, restaurants, liquor and other stores that sell alcohol are close together or concentrated suffer more frequent incidents of violence, social dislocation, medical emergencies, and property crimes.1 Although the Department of Alcoholic Beverage Control is a statewide agency, its actions directly affect the quality of life in local communities. This can create tension between the department and local communities, which may argue that decisions about distribution, con- centration, and operation of alcoholic beverage outlets are better made by local government officials and community stakeholders familiar with the social problems and law enforcement needs of their com- munity. Notwithstanding these considerations, the department is the ultimate arbiter in the issuance and regulation of liquor licenses. The department largely preempts local government authority to regulate alcohol sales and related activity, and thus the challenge for local governments is to regulate the ancillary aspects of alcohol sales through local land use powers. To do so, local governments must be if it determines that the license will not be contrary to the “public wel- meticulous in documenting police problems associated with licensees, fare or morals.”5 Moreover, the department is precluded from issu- actively monitor and intervene as necessary in proceedings to license ing a license that is contrary to a valid local zoning regulation. In fact, the establishment of new alcoholic beverage outlets, and be resource- license applicants are required to provide a zoning affidavit affirm- ful and creative in finding police power alternatives to assert a degree ing that issuance of the license will not be contrary to applicable zon- of control over the sale of alcoholic beverages within their commu- ing standards. nities, should the department fail to protect local community welfare. Courts have stated that the department has a “solemn responsi- bility” to protect the public from the potential harms that coincide State Authority to Regulate Alcohol with the sale of liquor.6 Thus, assuming the license is consistent with In 1955, the California Constitution was amended to establish a uni- local zoning, in order to carry out its mandate to protect the public form framework for licensing alcoholic beverage sales throughout the welfare and morals, the department is required to conduct a “thor- state. The constitution provides: “The State of California…shall ough investigation” to determine that the license will comply with all have the exclusive right and power to license and regulate the man- statutory criteria for the issuance of a liquor license.7 The discretion ufacture, sale, purchase, possession and transportation of alcoholic vested in the department is therefore “not absolute” and “must be beverages within the State.”2 The department was given the power exercised in accordance with the law.”8 Furthermore, any decision by to issue and revoke liquor licenses.3 The legislature established the the department “must be supported by sufficient evidence” or risk department to “ensure a strict, honest, impartial, and uniform admin- istration and enforcement of the liquor laws throughout the State.”4 Steven Meyers, the founding principal of Meyers Nave, is head of the firm’s In order to ensure honest, impartial, and uniform administration, Redevelopment and Housing Practice Group, and Stephanie J. Stuart is an the legislature granted the department specific guidance for oversee- associate with Meyers Nave and advises the San Leandro Board of Zoning ing the licensing process. The department may only grant a license Adjustments and Planning Commission. RICHARD EWING
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LexisNexis, the Knowledge Burst logo, Shepard’s and Martindale-Hubbell are registered trademarks and LexisNexis Practice Advantage is a trademark of Reed Elsevier Properties Inc., used under license. © 2006 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL9201 being overturned as an “abuse of discre- strong opposition from local government and issuance of a liquor license, it must produce tion.”9 community leaders. In such instances the compelling statistical and analytical data con- Business and Professions Code Section department’s broad discretion may under- necting the dots of social and economic dis- 23958 directs the department to deny a license mine a local jurisdiction’s ability to manage location to the prevalence of alcohol sales in if issuance of the license would result in or add alcohol-related social and police problems. order to convince the department that a to an “undue concentration” of licenses.10 In practice it is also extremely difficult to license should not be issued, because a local Undue concentration is a key standard in overturn a decision of the department. While government is unlikely to overturn the depart- evaluating state and local responsibilities in the department may delegate the power to ment’s decision on appeal.23 This includes controlling the adverse consequences of alco- hear from all parties and decide a licensing presenting clear, indisputable statistics that hol sales. An undue concentration exists when question to an administrative law judge, the demonstrate whether an undue concentra- an “applicant’s premises are located in a department must render the final decision tion of crime (as defined by statute) exists in crime reporting district that has a 20 per- whether to adopt the recommendation of the the area surrounding the applicant’s store.24 cent greater number of Reported administrative law judge or to render a deci- It also includes presenting relevant, expert tes- Crimes…than the average number of reported sion notwithstanding the administrative law timony that establishes that the issuance of the crimes as determined from all the crime Re- judge’s recommendation.17 license will create a law enforcement problem porting Districts within the jurisdiction” or If a party disagrees with the decision of the and citing specific facts and occurrences to when the census tract in which the appli- department to grant or deny a liquor license, support this testimony. While the department cant’s store is located “exceeds the ratio of on the challenge must go to the Alcoholic Bever- is still the ultimate arbiter of licensing, the sale retail licenses to population in the county age Control Appeals Board. After reviewing stronger the evidence the local government in which the applicant premises are the entire record of the proceedings before the produces, the more likely the department located.”11 Section 23958 also requires that department, the board must determine will decide in the government’s favor. the department “shall deny an application for whether there is substantial evidence to rea- a license if issuance of that license would sonably support the findings of the depart- Local Zoning Authority tend to create a law enforcement problem.”12 ment.18 Substantial evidence “cannot be A substantial body of research establishes a Section 23958 sets forth objective and deemed synonymous with ‘any’ evidence. It relationship between alcohol availability and subjective grounds for denial. If objective must be reasonable in nature, credible, and of negative social and environmental effects, evidence of the number of crimes in the appli- solid value; it must actually be ‘substantial’ including increases in criminal activity, pub- cant’s reporting district mandates denial, the proof of the essentials which the law requires lic nuisances, loitering, and drunk driving.25 department must deny the license, as no facts in a particular case.”19 However, the appeals A study of 74 cities in Los Angeles County beyond those establishing a statistical undue board “will indulge all legitimate inferences revealed that a higher density of alcohol out- concentration are necessary to mandate this in support of the Department’s determina- lets was associated with higher levels of vio- result.13 If subjective evidence demonstrates tion.”20 If, after reviewing the department’s lence, even when taking other factors into that the license would cause or exacerbate a decision, the appeals board determines there account.26 The study also found that in a law enforcement problem, the department is substantial evidence in the record to sup- typical city in Los Angeles County with must deny the license. However, even under port the department’s decision, the appeals approximately 50,000 residents, 100 alcohol this subjective criterion, courts have limited board will not reverse the department’s deci- outlets, and 570 incidents of assaultive vio- the discretion of the department: “[I]n sion. The courts will also review the depart- lence, the addition of one alcohol outlet was appraising the likelihood of future harm to the ment’s decisions under the same standard of associated with a .62 percent increase in the public welfare, the Department must be review.21 Judicial review of the department’s number of violent offenses.27 When the guided to a large extent by past experience decisions, however, is limited to the California department fails to act appropriately, local and the opinions of experts,” including law Court of Appeal and California Supreme governments must seek other means of pro- enforcement personnel.14 Moreover, when Court, and only by writ of review.22 Review tecting the public welfare. One way to do so attempting to assess the future impact of the is wholly discretionary with the court, and the is local zoning, which can be an extremely issuance of a license, the department’s deci- courts are under no obligation to accept effective tool to manage alcohol availability. sion must be “based on experience, sound rea- cases. Nothing guarantees that the depart- State law precludes the department from issu- son and evidence in the record,” again requir- ment’s decisions will be subject to judicial ing a license contrary to a valid zoning code. ing the department to defer to the local law review. Notwithstanding the power delegated to enforcement agency.15 This deferential standard of review serves the department, state law reserves for local Given this framework, it seems clear that to protect the department’s interpretations government the authority to establish and the department could best fulfill its mandate and decisions regarding its statutory man- enforce land use and zoning regulations of protecting public health and safety by date. While this is the same deferential stan- related to the operation of alcoholic beverage cooperating with local police departments dard of review that shields local governing outlets.28 While the department is vested with and planning agencies who know how alco- bodies, its application to the decisions of the the exclusive right and authority to regulate hol sales affect their community. Indeed, the department is unique. A substantial evidence and license alcohol, local governments may courts have reinforced the statutory grounds test is an appropriate standard to apply to constitutionally regulate alcohol-serving busi- for denial by stating that the “liquor indus- local governmental decisions made by elected nesses in the interest of preserving the pub- try is one which greatly affects the public officials, because courts typically defer to the lic health, safety, welfare, and morals.29 health, safety, welfare and morals of the peo- legislative branch and its understanding of the In recognition of the negative effects asso- ple” and that the welfare the statute seeks to effects a decision will have. The local gov- ciated with alcohol availability, courts have protect is that of the people of the state and erning body is afforded a deferential standard upheld local zoning ordinances that restrict not the liquor industry.16 However, despite of review because that body is in the best posi- the proximity of alcoholic beverage estab- this seemingly clear mandate, the department tion to make such determinations, due to its lishments to churches, schools, and residen- tends not to err on the side of the community knowledge of local affairs. tial districts. In Floresta, Inc. v. City Council and issues licenses even when faced with If a local government wishes to protest the of San Leandro,30 the court examined the
16 Los Angeles Lawyer October 2006 96))(),27(@:(;;,5;065
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6WRQH¿HOG-RVHSKVRQ,QF 3KRWRJUDSK\-RKQ/LY]H\ constitutionality of a local ordinance that on the grounds that it was arbitrary and dis- negative activities associated with establish- restricted the geographic location of alco- criminatory. The plaintiff also challenged the ments that sell or serve alcohol. holic beverage establishments. The ordinance constitutionality of the ordinance on the prohibited establishments engaged in the sale grounds it improperly regulated an activity Role of Local Government of alcoholic beverages from locating within that was properly regulated by the state.33 The In an attempt to define the limitations local 200 feet of a residential district without a use court noted that the San Leandro ordinance government may impose on establishments permit. The ordinance also provided that a did not prohibit the establishment of cocktail that serve alcohol, courts have consistently permit could only be issued upon findings by lounges in the city; rather, the ordinance held that local ordinances that do not directly the legislative body “that the establishment, operated to restrict the location of the estab- affect the sale of alcohol are not preempted maintenance, or operation of the use of the lishments within 200 feet of sensitive uses by the powers granted to the department. In building applied for will not…be detrimen- such as residential neighborhoods. The court 1994, in Korean American Legal Advocacy tal to the health, safety, peace, morals, com- held that San Leandro’s ordinance was a Foundation v. City of Los Angeles,36 the Cal- fort, or general welfare of persons residing or valid exercise of its zoning authority and ifornia Court of Appeal examined the extent working in the neighborhood of such pro- that the regulation did not infringe upon the to which the state had preempted the field of posed use nor be detrimental or injurious to state’s general authority to regulate the con- alcohol regulation. The case developed from property and improvements in the neigh- sumption of alcohol. the effort to rebuild stores destroyed during borhood, or to the general welfare of the Cities and counties are accorded broad the 1992 Los Angeles riots. City.”31 authority under the constitutional police Since 1985, Los Angeles has required The plaintiff in Floresta was a merchant power.34 However, their police powers may business engaged in the sale of off-site alco- who had been denied a use permit for a cock- only be exercised to the extent the regulations holic beverages to obtain conditional use tail lounge due to its proximity to a residen- are not in conflict with general laws.35 When permits. In 1987, the city adopted a plan tial district. In considering the plaintiff’s state laws are in conflict with local police that required conditional use approvals, con- application, the legislative body considered power regulations, state law supersedes the tingent on specified findings, for establish- comments from a nearby homeowners asso- local regulations. ments dispensing alcohol in South Central Los ciation, which opposed the establishment of In response to the adverse effects associ- Angeles. Businesses in operation before the a cocktail lounge so close to a residential ated with the availability of alcohol, some effective dates of either ordinance enjoyed neighborhood.32 The legislative body ulti- California cities have opted to enact land “deemed approved” conditional use status. mately denied the use permit due to the use laws and zoning ordinances, such as den- In the aftermath of the riots, the city adopted potential threat to the peace, morals, and sity restrictions, nuisance abatement, restric- ordinances to facilitate rebuilding, with expe- welfare of the residents. tions on hours of operation, and standards of dited procedures to process building permits The plaintiff challenged the city’s denial operation and facility design, to curb the in conformity with existing code provisions.
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18 Los Angeles Lawyer October 2006
However, all conditional use permitees, the city did not have the effect, either direct as a means of imposing operating standards including those with conditional use permits or indirect, of regulating the “manufacture, on legal nonconforming businesses estab- for selling alcoholic beverages for off-site sale, purchase, possession or transportation” lished prior to the city’s conditional use per- consumption, had to submit plans for of alcoholic beverages.38 Rather, the condi- mit requirements. As part of its pilot program, approval before rebuilding. Approval could tions imposed under the plan approval process Oakland adopted a comprehensive code be made contingent on conditions (such as were aimed at controlling or eradicating the enforcement scheme that the California Court graffiti removal, adequate lighting, trash negative secondary effects often associated of Appeal has upheld as a permissible use of removal, security guards, and limited hours with establishments that sell alcoholic bev- the city’s police power and authority to reg- of operation) imposed on the same basis as erages.39 Accordingly, the ordinance was ulate nuisances and criminal activities in the those for new conditional uses. In addition to deemed permissible, because it was aimed at areas surrounding alcoholic beverage retail the plan approval process, the city instituted land use and zoning—in particular, to abate sellers.41 The primary issue in the challenge “revocation hearings” to revoke or condi- or eradicate nuisance activities—rather than to Oakland’s ordinance was whether Oakland tion an owner’s deemed approved status or the regulation of alcohol. The validity of the could apply the ordinance to licensees that use permit in the event the business threatened ordinance was underscored by the fact it had sold liquor prior to the adoption of the to become, or had become, a nuisance or focused on the negative conduct occurring in ordinance. Did the ordinance violate Business law enforcement problem. The plaintiffs, the immediate vicinity of businesses selling and Professions Code Section 23790, which many of whom had stores destroyed during alcohol for off-site consumption. The court prohibits new zoning regulations barring the the riots, brought suit, challenging the valid- held: “That the conditions imposed under sale of liquor at a site from being applied to ity of the ordinance imposing the plan the ordinance may have some indirect impact “grandfathered” establishments? The court approval process and establishing revocation on the sale of alcoholic beverages does not ruled that the regulations were not intended hearings. They alleged that the city’s plan transmute the purpose and scope of the ordi- to control the sale of alcoholic beverages but approval and revocation processes were com- nance into a regulation merely seeking to instead to eliminate nuisance and criminal pletely preempted by the state constitution, control alcohol sales.”40 activities.42 While the ordinance did not pro- which specified that the state had exclusive hibit licensees from selling alcoholic beverages, authority to regulate the sale of alcoholic The Oakland Model it did prevent them from creating nuisances beverages—and the state exercised this exclu- The City of Oakland pushed the limits of and facilitating criminal activity at their stores sive jurisdiction through the Alcoholic Bever- the state preemption issue by instituting a and in surrounding areas. age Control Act.37 program that tested the effects of “deemed Under the Oakland ordinance, titled the In addressing the preemption issue, the approved” ordinances similar to the one at Deemed Approved Alcoholic Beverage Sale court examined the purpose of the ordinance issue in Korean American Legal Advocacy Regulations,43 the sale of alcoholic bever- and noted that the conditions imposed by Foundation. Oakland’s program was created ages in Oakland is an approved commercial
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20 Los Angeles Lawyer October 2006 activity so long as the seller complies with the city’s Deemed Approved Performance Stand- ards. The performance standards require that the sale of liquor at a site does not: WE ARE A LAW FIRM. • Result in adverse effects to the health, peace, and safety of persons residing or work- WE FORM AND ing in the surrounding areas. • Jeopardize or endanger the public health or safety of persons working in or residing in the MAINTAIN ENTITIES. surrounding area. • Result in repeated nuisance activities within the premises or close proximity of the premises, including but not limited to: illegal drug activity, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, the sale of stolen goods, public urination, thefts, assaults, littering, loitering, police detentions, and arrests. • Violate any city, state, or federal regulation, ordinance, or statute. • Have upkeep or operating characteristics that are incompatible with the surrounding area or adversely affect the liability of appro- priate development of abutting properties.44 THAT’S ALL. If the sale of liquor causes a violation of one of the performance standards, the city will hold an administrative hearing to review the Incorporation Service complaint. Complaints can come from the California Incorporation Companies police department or the general public. The Determine Name Availability and Reserve Name hearing officer—a city staff person—holds a Prepare and File Articles hearing to determine whether the standards All Secretary of State Filing Fees have been violated and may impose condi- Custom Bylaws tions on the merchant to enforce the stan- Custom Organizational Minutes, authorizing the election of officers and directors, establishment of bank accounts, issuance of dards. If the merchant violates these condi- stock, and other matters tions, the deemed approved status may be Preparation and Issuance of Share Certificates revoked. Once appeals of the administrative Statement of Information and Filing Fees hearing officer’s decision to the city council Preparation of 25102(f) Certificate and Filing Fees* Prepare IRS Form SS-4 and Obtain Tax Identification Number are exhausted, the city may seek to have the Prepare and File IRS Form 2553 to make “S” Election activity abated as a nuisance. The city may Ancillary Documents, including Promissory Notes, Medical also refer the matter to the department for Expense Reimbursement Plan, Employment Agreement revocation of the liquor license. To pay for the Resident Agent Services for one year Follow up to make sure that all documents are properly signed, filed, enforcement of the ordinance, Oakland fees are paid, and formation is properly completed imposes a $600 fee on liquor licensees. Experienced Attorneys handling every formation and available to Violations of the ordinance do not result consult on all aspects of the process in the forfeiture of the merchant’s liquor Corporate Kit, Seal, and duplicate Set of Documents on CD-ROM Accountant Copy of All Documents Delivered on CD-ROM license. Only the department has the consti- eMinutes Entity Management System (with online document library, tutional authority to revoke a liquor license. real-time monitoring of corporate deadlines) accessible from personalized Online Minute Book via secure web-based interface A violation, however, does prevent the mer- Automatic Enrollment in Annual Minutes System chant from selling liquor at the location where Cost the violation occurred. Furthermore, viola- $1,000 tions can be forwarded to the department *For capitalization up to $100,000 for possible revocation. A local agency may also file an accusation against a liquor seller with the department, which has discretion to decide whether to proceed with a formal accusation. Business and Professions Code Section 24201 pro- vides: “[A]ccusation may be made to the department by any person against any licensee. Accusations shall be in writing and Los Angeles San Diego San Francisco Toll-Free shall state one or more grounds which would 310.772.7700 858.550.0191 415.876.6210 866.JEFF UNGER authorize the department to suspend or revoke the license or licenses of the licensee www.eminutes.com www.ungerlaw.com against whom the accusation is made.” The
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818-981-4226 or 949-219-9816 www.wzwlw.com [email protected] grounds—after notification by the city attor- ney—for suspension or revocation are: 1) MEDIATOR continuance of the license would be contrary to public welfare or morals, 2) failure of the • 20 Years of Experience in Business, licensee to take reasonable steps to correct Real Estate, Entertainment, Commercial, objectionable conditions on the licensee’s Employment, Insurance and Trust Litigation. premises or immediately surrounding area, • 15 years of teaching conflict resolution including public sidewalks and streets within 20 feet of the premises, 3) failure to abate nui- • JD degree and PhD in Communication sances, such as disturbance of the peace, pub- • Superior Court and Probate Mediation Panels lic drunkenness, drinking in public, and Joan Kessler harassment of passersby. Reasonable steps telephone facsimile are defined as timely calls to law enforce- (310) 552-9800 (310) 552-0442 E-mail [email protected] ment asking for assistance in abating nui- 1901 Avenue of the Stars, Suite 400, Los Angeles, California 90067 sance conditions, asking persons engaging in nuisance activities to cease such activities, and the removal of items that facilitate nui- sances, such as furniture. The license holder is entitled to a hearing to address the valid- ity of any accusations made against it.45 Courts have ruled that the existence of a public nuisance, regardless of fault by the license holder, may support the revocation of a license. In Yu v. Alcoholic Beverage Appeals Board,46 the court ruled that ample evidence was presented that the store had become a law enforcement problem, which the owners were actively or constructively aware of, and the owners were not effective in controlling the (949) 388-0524 drug trade nuisance the store was creating. The fact that a license holder is passive in the management of the licensed establishment will not excuse actions deemed sufficiently objectionable for the revocation of a license. TOSHIBA digital copier, Moreover, dismissal of criminal charges against a license holder does not mandate a law office's best friend! dismissal of the same charges in a subse- quent disciplinary proceeding. Business and Professions Code Section 24203 also provides: “[A]ccusations may be filed with the Department by the legisla- tive body…of any city…requesting the sus- pension or revocation of a retail license. Upon the filing of the accusation, the Department shall provide for a public hear- COPYFAX COMMUNICATIONS ing…and determine whether or not the offers "NEW LACBA Member Benefit." license should be revoked or suspended.” Automatic 30% Off on all models of new TOSHIBA Copiers that Copy, Fax, Print and Furthermore, if the local legislative body Scan to E-mail. certifies that “the public safety, health, or AUTOMATIC 30% DISCOUNT welfare requires immediate hearing of the Quick and Easy - No Pricing Battle! accusation, the public hearing shall be held LIMITED TIME PROMO within 60 days after the filing of the accu- FREE Print and Scan Enabler for Networking Printing and Scanning! sations with the Department.”47 Using this SPECIAL LEASE provision allows the city to directly file an 0 Down - 0 Interest Lease accusation against a license holder and enti- Includes All Service and Supplies. Turn Key! tles the city to a hearing before the depart- FULL REPLACEMENT WARRANTY ment to determine whether or not to revoke It Runs Right Always or It's Replaced! or suspend a liquor license. The department does not have discretion to deny a hearing if it is requested by a city council. Under this course of action, however, discretion remains Serving the L.A. Legal Community since 1987 in the hands of the department. The depart- Please contact: Scott Baron @ 714.892.2444 ext 107 ment ultimately decides whether to revoke 5266 System Drive • Huntington Beach Tel: 714.892.2444 Fax: 714.892.2441 E-mail: [email protected] or http: //www.copyfax.net or suspend a license. Moreover, the depart-
Los Angeles Lawyer October 2006 23 ment’s decision is difficult to overturn through a legal challenge. In order to successfully proceed with an accusation against a license holder, a city will have to accumulate substantial evidence that a license holder is creating a public nuisance or creating a law enforcement problem as a result of its sale of liquor. To accomplish this, a city will need to direct the police department to patrol the areas surrounding troublesome alcohol sellers and document problems with citations and reports. At the revocation hear- ing, the city will need to present sufficient evi- dence to the department in order for a license to be revoked. This approach is in stark con- trast to Oakland’s deemed approved ordi- nance, in which it is the city that determines whether a store is creating a nuisance. Although the adoption of nuisance abate- ment ordinances may be an effective tool, there are drawbacks. One is that cities must HOW CAN wait until a nuisance arises before they can address the problem. However, if a local gov- MOVING BE ernment wants to take a more proactive approach to regulating the nuisances associ- THIS EASY ated with establishments that sell alcohol, it may do so through its power to impose zon- ing restrictions. While the state has express authority over the licensing and regulation of alcohol sales, local governments retain the right, under their police power, to regulate the effect of alcohol availability on public health, safety, and welfare. When the existence of licensed alcoholic beverage establishments creates negative effects, local governments must con- tinue to find creative ways to address those effects while being mindful of the state’s broad authority over liquor licensing. Cities can take a strategic approach to managing alcohol availability through land use controls and zoning regulations. Local governments can impose density restrictions 7)4( 0!2!'/.3 2%!, %34!4% !.$ -/6).' 3%26)#%3 9/5 that limit alcohol availability by population 3!6% -/.%9 4)-% !.$ %&&/24 or geographic area. Another option is to 0ARAGON PROVIDES REAL ESTATE AND MOVING SERVICES AT NO COST TO ,!#"! implement zoning restrictions that specify MEMBERS 0ARAGONS UNIQUE PROGRAM PROVIDES YOU WITH A COMPLETE alcohol outlets may not be established within a certain distance of sensitive uses such as PACKAGE OF REAL ESTATE RENTAL AND MOVING SERVICES PLUS REAL ESTATE schools, churches, and playgrounds. A third REBATES AND A FREE HOME WARRANTY option is to use the conditional use permit 5NLIKE OTHER SERVICES THAT ONLY OFFER A LIST OF UNKNOWN SERVICE PROVIDERS process to impose standards of operation 0ARAGON MANAGES A NATIONAL NETWORK OF MORE THAN PRE QUALIlED and facility design that promote safer envi- REAL ESTATE AGENTS AND MOVE PROFESSIONALS ! KNOWLEDGEABLE -OVE ronments in the area in and around the alco- 3ERVICES #ONSULTANT PROVIDES PERSONALIZED SERVICE AND COORDINATES ALL hol outlet. With regard to alcohol outlets that predate ASPECTS OF YOUR REAL ESTATE AND MOVE EXPERIENCE a local government’s land use and zoning laws and therefore have certain vested rights &).$ /54 (/7 0!2!'/. as a legal nonconforming use, local govern- #!. (%,0 9/5 ments should consider using nuisance abate- ment laws to address nuisance activity asso- WWWPARAGONRERICOMLACBA ciated with a particular alcohol outlet. Finally, /FFICIAL ,!#"! -EMBER "ENEFIT 0ROVIDER INFO PARAGONRERICOM local governments faced with alcohol-related problems should carefully document them 7HERE ALLOWED BY LAW and create a detailed record that can be used
24 Los Angeles Lawyer October 2006 to address problems locally and through com- plaints to the department.
1 Kathryn Stewart, How Alcohol Outlets Affect Neighborhood Violence, available at http://www .resources.prev.org (visited Apr. 5, 2006). 2 CAL. CONST. art. XX, §22. 3 Stroh v. Midway Rest., 180 Cal. App. 3d 1040, 1047 (1986). 4 BUS. & PROF. CODE §23049. 5 Motossian v. Fahmie, 101 Cal. App. 3d 128, 133 (1980). 6 Torres v. Department of Alcoholic Beverage Control, 192 Cal. App. 2d 541, 543 (1961). 7 BUS. & PROF. CODE §23958. 8 Stouman v. Reilly, 37 Cal. 2d 713, 717 (1951). 9 Torres, 192 Cal. App. 2d at 543. 10 BUS. & PROF. CODE §23958. 11 BUS. & PROF. CODE §23958.4(a)(l). 12 Id. 13 Department of Alcoholic Beverage Control v. Alco- holic Beverage Control Appeals Bd., 136 Cal. App. 3d 315, 320 (1982). 14 Kirby v. Alcoholic Beverage Control Appeals Bd., 7 Cal. 3d 433, 441 (1972). 15 See Iscoff v. Police Comm’n, 222 Cal. App. 2d 395, 410-11 1963). 16 See American Distilling Co. v. State Bd. of Equalization, 144 Cal. App. 2d 457 (1956). 17 BUS. & PROF. CODE §24210. 18 Bowers v. Bernards, 150 Cal. App. 3d 870, 873-74 (1984). 19 Estate of Teed, 112 Cal. App. 2d 638, 644-45 (1952) (citing Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938)). 20 Department of Alcoholic Beverage Control v. Alco- holic Beverage Control Appeals Bd., 118 Cal. App. 4th 1429, 1437 (2004). 21 BUS. & PROF. CODE §23090.2. 22 BUS. & PROF. CODE §§23090-23090.7. 23 BUS. & PROF. CODE §24013. 24 BUS. & PROF. CODE §23958. 25 Preventing Alcohol Trauma: A Community Trial, at http://www.resources.prev.org/recentfindings_sod_patct .html (visited Apr. 5, 2006). 26 Stewart, supra note 1. 27 Id. JACK TRIMARCO & ASSOCIATES 28 BUS. & PROF. CODE §23791. 29 See MCQUILLIN MUNICIPAL CORPORATIONS §9.24 POLYGRAPH/INVESTIGATIONS, INC. (3d ed. 1984). 30 Floresta, Inc. v. City Council of San Leandro, 190 Cal. App. 2d 599 (1961). 31 Id. at 602-03. 32 Id. at 602. 33 Id. at 603. 9454 Wilshire Blvd. 34 Candid Enters., Inc. v. Grossmont Union High Sch. Sixth Floor Dist., 39 Cal. 3d 878, 885 (1985). 35 CAL. CONST. art. XI, §7. Beverly Hills, CA 90212 36 Korean Am. Legal Advocacy Found. v. City of Los Angeles, 23 Cal. App. 4th 376 (1994). (310) 247-2637 TEL 37 Id. at 385. 38 Id. at 385-87. (310) 306-2720 FAX 39 Id. at 387. 40 Id. 41 City of Oakland v. Superior Court, 45 Cal. App. 4th Jack Trimarco - President 740 (1996). Former Polygraph Unit Chief 42 Id. at 765. Los Angeles F.B.I. (1990-1998) 43 email: [email protected] City of Oakland Deemed Approved Alcoholic Bever- CA. P.I. #20970 age Sale Regulations, Title 17 Planning, §§17.156 et seq. www.jacktrimarco.com 44 Id. 45 Id. Member Society of Former Special Agents Former Polygraph Inspection Team Leader 46 Yu v. Alcoholic Beverage Appeals Bd., 3 Cal. App. Federal Bureau of Investigation Office of Counter Intelligence 4th 1286 (1992); see also Cooper v. State Bd. of U.S. Department of Energy Equalization, 137 Cal. App. 2d 672 (1955). 47 BUS. & PROF. CODE §24203.
Los Angeles Lawyer October 2006 25 by Judge Michael L. Stern
Meet and CONFER Counsel should not rely on bench officers to resolve basic pretrial procedural issues
amendments to the Los Angeles Superior Court Local Rules governing On January 1, 2006, trial preparation went into effect. Of particular importance is new Local Rule 7.9(i), which augments long-existing trial preparation rules con- cerning the filing of joint pretrial documents prior to the final status conference. Local Rule 7.9(i) now permits judges to require an “in person” meeting of counsel to discuss joint trial documents before the final status conference and the filing of those documents. The documents covered by this rule include a joint statement to be read to the jury, a joint witness list, a joint exhibit list, a set of agreed-to jury instructions in proper format with all changes and modifications (including correct references to the parties and no blanks, brackets, empty spaces, or inapplica- ble options), and an agreed-to general verdict form or special verdict form with interrogatories. Mutual collaboration and good faith compliance by opposing parties with this new rule and existing procedures will enable trial attorneys to better present their cases at trial.1 With the new rule now almost a year old, effective compliance strate- gies have emerged. The joint short statement of the case, which the court reads to prospective jurors, is one of the most vital pieces of infor- mation that jurors will receive at the beginning of trial. The statement provides an opportunity for counsel representing both sides to tell the jurors about the case in a concise and clear manner. Counsel all too frequently pay insufficient attention to the short statement during trial preparation. This essential state- ment should be drafted by the attorneys who try the case. Turning the task over to paralegals or colleagues undercuts the importance of the statement, which should reflect the direct and complete involvement of trial counsel. Counsel sometimes forget that jurors are unfamiliar with legal jargon and trial procedures, apprehensive about the jury selection process, and intimidated by the courtroom. An effective short statement without legalese puts jurors at ease, saves
Michael L. Stern is a Los Angeles Superior Court judge. KEN CORRAL
26 Los Angeles Lawyer October 2006 time in voir dire, and paves the way for informative opening state- to deposition transcripts, or subpoenaed by the parties is not a sub- ments. Trial counsel should confer to prepare a brief, neutral short stitute for an honest exchange of exhibits for a joint exhibit list. statement that succinctly informs the jury about the parties and their Counsel should not approach the exchanging of trial exhibits by claims, catches jurors’ attention without favoring either side, and sug- promising more to come later. Both sides should be completely forth- gests reasons why serving as a juror on the case will be an interest- coming when the joint list is prepared. ing experience. After all potential trial exhibits have been exchanged, counsel A short statement should be composed in plain English. It should should seek agreement on stipulations for authentication and evi- avoid factual or legal advocacy and refrain from expounding legal the- dentiary foundations for exhibits. These agreements may obviate ories. An effective short statement sets the scene, identifies the play- the calling of custodians of records or other unnecessary witnesses, ers, and gives the jurors a sense of the parties’ ultimate contentions. particularly if there are no real disputes. They also help to reduce the In a simple case, for example, a short statement using no subjec- time needed for trial preparation, eliminate needless motions in lim- tive assertions or legal terms might read as follows: ine, cut expenses, and expedite the trial itself. This action concerns a slip and fall accident involving plaintiff Early diligence in identifying trial exhibits also minimizes surprises Barton Griswold, which occurred on April 6, 2005, at the at trial, such as when a new exhibit surfaces after a witness takes the premises of defendant Coop Grocery Store in Ames, California. stand and counsel objects, “I have never seen that exhibit before this Plaintiff Griswold alleges that he slipped and broke his arm when moment, your Honor.” No one benefits from unnecessary delays he fell on a slippery area inside the store that was not properly caused by counsel haggling over exhibits during trial. maintained. He seeks recovery for medical expenses, lost wages, While working with opposing counsel to form the exhibit list, coun- and pain and suffering. sel also should note evidentiary stipulations that may be placed on Defendant Coop Grocery Store denies responsibility for the record before trial begins. If these discussions do not resolve evi- plaintiff’s injuries and alleges that the area where plaintiff fell dence issues, the opponents should prepare how they will raise them was well-maintained, there had been no reports of a slippery with the court, such as with a motion in limine. floor, and plaintiff’s injuries were due to his own fault. Judges invariably have their own preferences how exhibits should The short statement is the first factual introduction of the case to the be numbered, listed, premarked (or not), and how to handle demon- jurors, so counsel should not give it short shrift. strative exhibits (including boards, videos, slides, models, and Elmo and Power Point displays). Some judges specify a particular format Listing the Witnesses for listing exhibits. Others may admonish counsel to consult the A joint witness list with time estimates for direct and cross-examination local rules.4 Attorneys should ask the court at a status or case man- is due five court days before the final status conference. Counsel agement conference, or contact the clerk, to determine the court’s for- should confer regarding the preparation of a single joint list of wit- mat preferences for listing exhibits if this is not apparent. nesses for trial.2 The parties are entitled to list all possible witnesses The joint exhibit list should follow a rational order. Counsel so that the court does not exclude a witness from testifying at trial. should ensure that the list begins with the plaintiff’s exhibits in the However, some witness lists look more like pages from a telephone expected order of presentation. These should be followed with those book than realistic forecasts. There is no reason to set forth a cast of exhibits less likely to be introduced. Jurors often can best follow evi- thousands. dence presented in the order in which witnesses are called. For each A good practice for counsel is to list those whom they truly exhibit, ask this important question: “Do I have a witness or stipu- expect to call as witnesses at trial. Counsel should refrain from lation establishing foundation and admissibility for this exhibit?” attempting to “sandbag” their opponents by submitting a list of The joint exhibit list must use arabic numbers, with exhibits every name that could conceivably be connected to the case. Sand- grouped by party (for example, plaintiff exhibits are numbered 1 to bagging is inappropriate and a detriment to proper planning for 100; defendant exhibits, 200 to 300).5 Parties should list the exhibits trial. Counsel should keep in mind that the court most likely will in consecutive numerical order, each followed by a short description. inquire about which witnesses on the list actually will be called, the The exhibit numbers and descriptions should be used uniformly by order of witnesses, the nature of the testimony, and the length of the all counsel throughout the trial (for example, Exhibit 1—Master expected testimony. Lease, dated 11-7-02; Exhibit 2—Plaintiff’s Medical Records, Dr. A thorough witness list should state whether a witness is percip- Thayer; Exhibit 3—Diagram, Accident Scene). ient or expert (and note the area of expertise), identify adverse wit- One straightforward approach for numbering exhibits is to start nesses (such as Evidence Code Section 776 witnesses), and state real- by renumbering originally produced documents or those attached to istic time estimates for direct and cross-examination. Counsel should deposition transcripts with new page numbers (such as 31-1, 31-2, avoid padded guesstimates. For instance, an attorney should not and the like). Using letters for exhibits is discouraged (such as Exhibit state that the potential testimony time for a witness will be 4.5 hours C, Exhibit 16A, or Exhibit 18-A-1). Moreover, even though some just because that is how long the deposition lasted or to ensure an courts use numbers for one side’s exhibits and letters for the other’s, abundance of time to “get in the testimony.” experience indicates that mixing numbers and letters can become baf- The time needed for direct or cross-examination cannot be esti- fling during trial. Courts and jurors seldom distinguish and are rarely mated without genuine consultation with opposing counsel. concerned about which side introduces an exhibit. Practitioners should not play “hide the ball” with witness testimony, It is also not a good idea to place a series of items under a single except for legitimate impeachment or rebuttal purposes. The goal is exhibit number. A group of letters, memos, e-mail messages or pho- to eliminate surprised reactions and objections from opposing coun- tographs should not be presented as a single exhibit simply for con- sel and enhance credibility with the court. venience or because the items within each group are related in a gen- eral way. Each item should be distinct and have its own exhibit Mapping an Exhibit List number. Counsel must prepare a joint list of exhibits that will be marked for It is astonishing how many judges, attorneys, and witnesses can- identification and introduced at trial.3 Creating this list marks the pre- not locate the correct page of an exhibit during trial. This is often due trial moment at which all exhibits are presented and exchanged. An to a failure to properly number the exhibits. Placing a number on each agreement to rely on the documents produced in discovery, attached page of the documentary exhibits keeps everyone on the same page
28 Los Angeles Lawyer October 2006 at the same time. Counsel should uniformly number every individ- comes with the risk that the evidence may be excluded. ual documentary exhibit in the lower right-hand corner of each It is useful to provide the court, clerk, witnesses, and all counsel page. This is particularly valuable when the exhibit is a lengthy med- with three-ring exhibit binders, with the exhibits separated by num- ical record or other type of report. The numbers should be distinc- bered divider tabs. This usually means preparing at least five sets of tive and consistent (such as 1-1, 1-2, 1-3). At the same time, it is essen- exhibit binders for trial purposes. Turning the pages in a neat binder tial to eliminate from the documents any prior numbering created for looks much more professional than fumbling with loose documents document productions, deposition use, and miscellaneous attorney during trial—and that includes a bench trial. or client notes that are unrelated to the original document. Numbering photographs as trial exhibits frequently causes need- Motions in Limine less confusion. Each photo should be treated as a separate exhibit. Thoughtful and well-conceived motions in limine can narrow and Thus, photos should have their own exhibit numbers and be presented define issues at trial, particularly those involving evidence and wit- separately (such as Exhibit 1-1, Exhibit 1- 2, or consecutively numbered exhibits start- ing with Exhibit 1, followed by Exhibit 2, and so forth). Placing more than one photo on a page creates more problems than any of the supposed benefits for doing so, such as saving paper or reducing the amount of exhibit numbers. General descriptions, like “seven accident photos,” which too often are seen on exhibit lists for all kinds of documents, do not assist in identifying an exhibit with adequate specificity. Moreover, unless a group of photos are linked together for a particular illustrative purpose, a photo board with more than one picture should never be used. If color photos will be offered, it is best to make color photo- copies for each exhibit book (even if blow- ups will be presented). Counsel may be tempted to number exhibits with Bates-stamped numbers. Avoid this temptation. It may seem easier to stamp a large number of exhibits with Bates numbers, but a long series of numbers only slows down trial and detracts from a smooth presentation. ness problems. Vague, ill-conceived motions consume valuable time Placing “reserved” numbers on the list without listing an actual and may not be granted. exhibit serves no real purpose. Also, if there is no legitimate basis for Despite the prevailing rules, different judges have their own pref- the introduction of an exhibit, do not list it. Examples of inappropriate erences on the presentation of motions in limine.8 Indeed, there exhibits that should not be listed include: deposition transcripts;6 appears to be no single practice followed by all judges regarding when general discovery items, such as “defendant’s interrogatories and to file motions in limine and oppositions or when these will be heard. plaintiff’s responses” or “all discovery produced by opposing party”; Counsel must inquire how the trial judge handles pretrial motions. and generically described categories—such as “photos,” “medical Unless counsel specially set motions in limine for hearing as noticed texts,” “anatomical diagrams,” and the like—without specific descrip- motions in advance of trial, courts frequently hear them shortly tions of individual items. before or on the first day of trial—but attorneys should not assume Nothing drives attorneys to distraction more than opposing coun- they they know the procedures without asking for clarification. sel supplying evidence at the last minute before or during trial. Counsel for the litigating parties must meet and confer before fil- Indeed, avoiding this type of situation is one of the purposes behind ing motions in limine.9 This requirement is intended to avoid the gen- Local Rule 7.9(i). Engaging in this disfavored practice can only gen- eration of unnecessary motions. Filing motions without first dis- erate vocal complaints from opposing counsel who has not seen the cussing clearly resolvable matters does not advance the interests of evidence before trial or had no opportunity to present objections. This clients. There is no need to lay waste to more trees by adding super- is especially true regarding exhibits proposed for the opening state- fluous motions to already bulging files. Pretrial stipulations on typ- ment or, worse yet, placed before a witness for examination without ical trial matters can frequently settle differences before commence- notice to opposing counsel. Of course, items intended for impeach- ment of the trial. ment purposes may be held back in reserve for use at trial. But coun- For example, counsel should not need to produce “standard” sel must be sure to have extra copies ready to provide to the attor- motions in limine on exclusion of witnesses before testimony, use of neys for the other side and to the court. demonstrative evidence, document authenticity, mention of insurance Demonstrative evidence and blow-ups must be marked for iden- coverage, admission of uncontested reports and records, bifurcation tification and shown to or played for opposing counsel before of punitive damages, financial information, attorney’s fees, and other trial.7 Counsel should not wait until the last minute to prepare usually agreed-to matters. Straightforward stipulations can address demonstrative evidence and blow-ups or present them in court all these matters and eliminate a variety of troublesome issues. The without warning. Many types of demonstrative evidence take much court in Kelly v. New West Federal Savings offers a candid and time to prepare and are expensive. Failure to disclose them early and instructive discussion on the uses and abuses of motions in limine.10 resolve potential objections may be costly. Late disclosure also Requests for hearings regarding admissibility of testimony or evi-
Los Angeles Lawyer October 2006 29
dence under Evidence Code Section 402 EXPERT WITNESS — Claims Consultant should be filed early. Oral motions in limine presented during trial, especially those regard- ing evidentiary admissibility issues that could OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states have been anticipated, are strongly discour- and qualified in state and federal courts. Expert in good faith/bad faith, standards and practices and standard in the industry. Specialties in aged by most courts. property/casualty construction defect, fire/water, uninsured/underinsured Each motion in limine and opposition motorist, warehouse and cargo claims. Failure to defend and/or indemnify. should be filed separately with its own points EXPERIENCE Litigation support, case review and evaluation claim consultation, coverage and authorities, supporting declarations, and INTEGRITY review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC. other evidence. Counsel should not staple or bundle together various motions in limine Contact Gene Evans at E. L. Evans Associates HONESTY or file the motions as an omnibus, single Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] pleading. Unless requested, proposed orders most likely are superfluous. 3310 AIRPORT AVENUE, SUITE 2, SANTA MONICA, CALIFORNIA 90405 The caption of each motion in limine should clearly and concisely identify the sub- ject of the motion (such as “Plaintiff’s Motion Quo Jure Corporation 1-800-843-0660 in Limine to Exclude the Testimony of Dr. www.quojure.com Casner, An Undisclosed Defendant’s Expert, LAWYERS’ WRITING & RESEARCH [email protected] Due to Improper Designation Pursuant to Code of Civil Procedure Section 2034.300”). When you can’t do it yourself, but you still need a brief or Counsel should not simply inform the court memo done—and done well, by experienced attorneys who that they are presenting a motion in limine to are skilled writers—turn to Quo Jure Corporation. exclude some evidence without including more description (for example, do not simply Quo Jure provides premium legal writing and research services designate a motion as “Defendant’s Motion to practicing attorneys. Our work has contributed to million- in Limine #5 to Exclude Evidence”). Without dollar settlements and judgments. Oppositions to motions for a proper descriptive caption, a motion in summary judgment are our specialty. Call for a free analysis TM limine is off to a shaky start and may be and estimate. The Winning Edge headed in the wrong direction. Notices of motions that do not explicitly state the objective or purpose of the motion in precise and direct language may get lost in the pretrial maneuvers. A concise but com- plete notice of motion might begin by stating: “Plaintiff moves to exclude the testimony of Dr. Leach, an undisclosed defendant’s expert entomologist, based on the grounds that he was not properly designated in the defen- dant’s pretrial expert witness exchange pur- suant to Code of Civil Procedure Sections 2034.230 and 2034.260.”11 The memorandum of points and author- ities in support of a motion in limine should avoid boilerplate verbiage and pro forma citations. Vague motions to “exclude testi- mony” without specifics do not assist the court. Counsel should get right to the heart of the matter and use appropriate—and brief—citations to supporting legal authori- Confidence At The Courthouse. ties and evidence. Courts are not overly Business litigation is increasingly complex. That is why we believe valuation impressed by lengthy quotations from statutes issues must be addressed with the same meticulous care and cases, much less string citations that do as legal issues. Analysis must be clear. Opinions must be not advance an argument. It is important to defensible. Expert testimony must be thorough and keep in mind that judges are very busy, with articulate. HML has extensive trial experience and can much to do to get a trial launched and run- provide legal counsel with a powerful resource for expert ning, and they want to resolve pretrial issues testimony and litigation support. efficiently and quickly. An opposition to a motion in limine For More Information Call 213-617-7775 should be equally to the point. The opposing Or visit us on the web at www.hmlinc.com party should not only state the grounds for opposition in the caption but also ensure BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS that the reasons for the opposition are front and center in the text. These reasons should
32 Los Angeles Lawyer October 2006 be supported with pertinent legal authori- ties and appropriate facts. To sign up for our free Jury Instructions and Verdict Forms electronic newsletter Counsel must create a joint set of proposed, agreed-to jury instructions. Also, they must CASE DEVELOPMENTS prepare separate sets of jury instructions on IN EMPLOYMENT & which they disagree. These sets must be filed BUSINESS LAW 12 before the final status conference. visit our web site at Despite the critical role of jury instructions www.socalmediator.com in making or breaking cases at trial or on appeal, counsel sometimes look for short or call us at cuts in handling this important aspect of trial (949) 852-0550 preparation. This is a mistake. It is essential for counsel to not only know and under- stand the law that applies to the case but also consider how the jury will utilize the jury instructions to decide the case. Thus counsel must determine which “stan- dard” CACI instructions are applicable and what areas of law may require formulating special jury instructions. Relying on well- worn instructions from a past case or bor- rowing a set of supposedly trial-tested instruc- tions from an attorney down the hall may prove insufficient. The local rules detail obligations for the preparation of CACI jury instructions and the procedures that the court will follow in reviewing proposed instructions with coun- sel.13 Counsel should read these in conjunc- tion with the requirements for use of the instructions by the jury. Preparing an initial list of proposed CACI instructions to the court is only the beginning of the process of preparing joint jury instruc- tions that support the theories of the case and are accepted by the court for presentation to the jury. Counsel should first compile a list of boilerplate CACI instructions (such as CACI 200. Obligation to Prove; More Likely True Than Not True; and CACI 5000. Duties of Judge and Jury). Then they should turn to the case-specific CACI instructions that are applicable to their case (such as CACI 400. Negligence-Essential Factual Elements). The next step involves filling in the blanks of the jury instructions to tailor them to the case. Counsel from both sides should work together to fine-tune the instructions for final submission by combing through each instruc- tion and selecting the singular or plural, cross- ing out brackets, removing inapplicable options, and perfecting appropriate language. Each attorney should be certain to note objec- tions, which should be posed later in writing or orally on the record. After completing these tasks, counsel are ready to add case-specific special instructions not covered by the standard CACI instruc- tions. It is essential that these instructions contain clear, accurate statements of law with complete citations. Opposing attorneys should discuss all jury instructions with one another
Los Angeles Lawyer October 2006 33 before the Local Rule 7.9(i) meeting rather form. A cooperative effort in formulating and nightmarish scenarios, and help ensure than just faxing or e-mailing sets of instruc- the verdict form is professional, efficient, and greater success. tions back and forth and considering the job economical. done. With these premeeting discussions, The new rules require a proposed verdict 1 See L.A. SUP. CT. LOCAL R. 7.9(h) (Final Trial counsel stand a better chance of obtaining to be filed with the pretrial conference doc- Preparation). 2 agreement and avoiding adverse consequences uments. If counsel cannot agree in advance on L.A. SUP. CT. LOCAL R. 7.9(h), (i). 3 L.A. SUP. CT. LOCAL R. 8.60 (Marking of Exhibits). for their clients. a verdict form, alternative verdict forms 4 See generally L.A. SUP. CT. LOCAL R. 8.59-8.69. Counsel should not presume that the should be submitted. As with jury instruc- 5 L.A. SUP. CT. LOCAL R. 8.62 (Uniform Method of preparation of jury instructions is a mun- tions, it is smart to prepare a computer disk Marking Exhibits). dane matter that will wait until trial testimony containing proposed verdict forms and have 6 L.A. SUP. CT. LOCAL R. 8.70 (Use of Depositions, is complete and closing arguments are about it ready at trial. Interrogatories and Requests for Admissions), 8.71 to begin. The process of preparing the final Counsel should take sufficient time and (Signing, Certification and Lodging of Depositions). Deposition transcripts or a binder of condensed tran- jury instructions that will be typed on per- care to reach agreement during the pretrial scripts should be provided to the court before trial. forated tear-off forms, placing them on the process on the wording of a jury verdict form 7 L.A. SUP. CT. LOCAL R. 8.40 (Use of Graphic Devices record with objections noted, the court read- that fits the elements of the parties’ claims. in Opening Statements), 8.74 (Graphic Devices Used ing them to the jury, and sending a set into the This will eliminate the anxiety of working late in Argument), 8.75 (Maps, Plans and Diagrams). 8 jury room for deliberations begins pretrial and nights during trial devising an acceptable L.A. SUP. CT. LOCAL R. 8.92 (Motions in Limine). 9 See L.A. SUP. CT. LOCAL R. 8.92(a)(2). may continue until the jury eventually returns verdict form, particularly when that time 10 Kelly v. New West Federal Sav., 49 Cal. App. 4th a verdict. might be better spent focusing on the upcom- 659, 669-71 (1996). Another mistake that counsel make is ing examination of witnesses. Verdict forms 11 L.A. SUP. CT. LOCAL R. 8.92(a)(1) (clear identifica- approaching the drafting of general or special are what the jury ultimately will complete in tion needed of specific matter alleged to be inadmissi- verdict forms as an afterthought. A proposed, deciding the case, so counsel should give ble and prejudicial). 12 See L.A. SUP. CT. LOCAL R. 7.9(h), (i); 8.24 (Jury agreed-to special verdict form with inter- them the careful thought and consideration Instruction Conference); 8.25 (Duty of Counsel to 15 rogatories or a general verdict form must be they deserve. Modify CACI Instructions); 8.26 (Form of Proposed filed five court days before the final status con- It is said that an attorney who looks well- Jury Instructions). See also CODE CIV. PROC. §§607a, ference.14 In drafting a special verdict form, prepared increases his or her chances of pre- 609 and CAL. R. OF CT., TRIAL CT. R. 229 (Proposed counsel should rely upon the suggested exem- vailing at trial. Local Rule 7.9(i) is intended Jury Instructions). 13 See L.A. SUP. CT. R. 8.24. plar formats set forth in the CACI instructions. to encourage counsel to cooperate in order to 14 L.A. SUP. CT. R. 7.9(i) When discussing jury instructions before be effective advocates. Familiarity and com- 15 L.A. SUP. CT. R. 8.95 (Special Verdict and Findings trial, counsel should seek to achieve agreement pliance with this and the other pretrial rules Forms); CAL. R. OF CT., TRIAL CT. R. 230 (Request for on the use of a general or special verdict will make trying cases easier, avoid headaches Special Findings by Jury).
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34 Los Angeles Lawyer October 2006 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 39.
by Michael A. Geibelson and Bernice Conn Clause Effectand Parties agreeing to standard arbitration clauses may unwittingly alter their rights
rbitration clauses broad and often have unexpected, and unde- tence of the contract is contested due to a are ubiquitous sired, consequences. One of the most signif- defect, such as fraud, in its formation or exe- and profoundly icant and least anticipated of these conse- cution. alter the rights of quences is to vest the arbitrator with the The Supreme Court’s willingness to require parties to agree- power to decide “arbitrability”—whether a arbitration even if an agreement is illegal ments containing claim is subject to arbitration—although this illustrates the importance of clearly stating in them. Often, how- is one of the few issues still traditionally rel- each agreement what the parties are agreeing ever, it is not until egated to the jurisdiction of the courts. to arbitrate and who will decide what. an actual dispute The impact of these unanticipated conse- Because arbitration clauses take a wide vari- arises that parties and their counsel first quences is magnified by the strong presump- ety of forms, the rights of parties can be become aware of just how profound an effect tion favoring arbitration. The U.S. Supreme affected either expressly or implicitly by the Athese clauses can have. Court in Buckeye Check Cashing, Inc. v. language chosen for the clause. The informed In the momentum of closing a deal or set- Cardegna1 recently explained that even when and careful selection of an arbitration clause tlement, the parties often fail to focus on the an agreement containing an arbitration clause language of the arbitration clause. Although is alleged to be illegal as a whole and there- Michael A. Geibelson and Bernice Conn are part- the parties may agree to use a specific arbi- fore void ab initio, the arbitration clause is ners with Robins, Kaplan, Miller & Ciresi L.L.P. in tration provider, little attention generally is severable and an arbitrator, not a court, Los Angeles. They try complex, multidistrict, and given to the rules that will govern the arbi- decides whether the agreement is in fact ille- class action cases on behalf of plaintiffs and defen- tration. Unfortunately, the clauses “recom- gal. The only exceptions the Supreme Court dants, focusing on business disputes and con- mended” by arbitration providers and allowed to this rule are when the arbitration sumer rights, including misappropriation of trade included in many contracts are extremely clause itself is challenged or if the very exis- secrets, unfair competition, fraud, and antitrust.
Los Angeles Lawyer October 2006 35 and arbitration provider eliminates unin- scope of the parties’ agreement to arbitrate, Any dispute arising out of or relating tended and unwelcome results. and 2) whether the parties agreed to arbitrate to this contract, including the breach, The purpose of the Federal Arbitration Act their present dispute. The FAA’s policy favor- termination or validity thereof, shall be is to help fulfill the intentions of the parties ing arbitration requires that any doubts con- finally resolved by arbitration in accor- and overcome judicial aversion to arbitra- cerning the scope of arbitrable issues should dance with the International Institute tion. Every arbitration agreement affecting be resolved in favor of arbitration.15 However, for Conflict Prevention and Resolution interstate commerce is subject to the FAA.2 if an agreement contains any ambiguity as to Rules….19 The California Arbitration Act will only who decides the “gateway issue” of arbitra- The International Chamber of Commerce apply to contracts that exclusively affect bility, the act’s presumption favoring arbi- offers this sample clause: California intrastate commerce.3 tration is reversed. Once that occurs, the All disputes arising out of or in con- Once a court determines that the forma- court ordinarily will decide a crucial thresh- nection with the present contract shall tion of an arbitration agreement is not in old question: be finally settled under the Rules of issue, it will direct the parties to proceed to Just as the arbitrability of the merits of Arbitration of the International arbitration in accordance with the terms of the a dispute depends upon whether the Chamber of Commerce…. agreement.4 Thus the role of the courts in parties agreed to arbitrate that dis- Practitioners should beware of these reviewing matters subject to arbitration usu- pute, so the question of who has the provider-suggested clauses. Courts have rec- ally is limited to determining two issues: 1) primary power to decide arbitrability ognized that the kind of language contained whether a valid agreement or obligation to turns upon what the parties agreed to in these recommendations is “the paradigm arbitrate exists, and 2) whether one party to about that matter. Did the parties agree of a broad clause” and “the broadest language the agreement has neglected or refused to to submit the arbitrability question the parties could reasonably use.”20 While the arbitrate.5 itself to arbitration?16 clauses do not expressly state who will decide In construing an arbitration agreement, Parties are free to assign to an arbitrator the issue of arbitrability, their language has as with any other contract, the controlling the question of whether a claim is arbitrable.17 been interpreted to mean that the parties factor is the intentions of the parties. But “unless the parties clearly and unmis- intended to submit questions of arbitrability Nevertheless, those intentions are “gener- takably provide otherwise, the question of to the arbitrator. By doing so, the clauses ously construed as to issues of arbitrability.”6 whether the parties agreed to arbitrate is to defeat the presumption favoring judicial deter- Any doubts concerning the scope of arbitra- be decided by the court, not the arbitrator.”18 mination of this crucial issue. Indeed, many ble issues typically are resolved in favor of arbi- Unfortunately, this critical presumption cases confirm that the breadth of an arbitra- tration.7 As a general rule, questions of arbi- favoring the court’s authority to decide issues tion clause itself demonstrates a clear and trability must be addressed with “a healthy of arbitrability is often unintentionally extin- unmistakable intent to have arbitrability regard for the federal policy favoring arbi- guished by 1) adopting a standard, broad decided by the arbitrator: tration.”8 In fact, when contracts contain an arbitration clause recommended by an arbi- In construing arbitration clauses, arbitration provision, a presumption of arbi- tration provider, and 2) failing to carefully courts have at times distinguished trability arises, and questions about the scope consider which arbitration provider is between “broad” clauses that purport of arbitrable issues are decided in accordance selected. Either way, a client may subse- to refer all disputes out of a contract with that presumption.9 quently come to believe that he or she did not to arbitration and “narrow” clauses When deciding whether the parties agreed get what was bargained for. that limit arbitration to specific types to arbitrate a certain matter, including arbi- In many arbitration clauses, parties com- of disputes. If a court concludes that trability, courts generally should apply the monly agree that all matters “arising out of a clause is a broad one, then it will same state law principles that govern the for- or relating to” their agreement will be arbi- order arbitration and any subsequent mation of contracts.10 However, the FAA has trable. They do so at the suggestion of many construction of the contract and of led to the judicial creation of a body of fed- arbitration providers. Even though the arbi- the parties’ rights and obligations eral arbitrability law, which is applicable to tration providers do not expressly say so, under it are within the jurisdiction of any arbitration agreement covered by the their broad recommended clauses have been the arbitrator.21 act.11 Since courts commonly decide issues of interpreted to confer on the arbitrator the Courts have explained that an objective arbitrability, this body of law is substantial. authority to decide his or her own jurisdiction reading of an arbitration clause that refers Even when applying general state law prin- and to divest the courts of all jurisdiction “[a]ny and all controversies” to arbitration ciples of contract interpretation to an agree- over questions of arbitrability. For instance, leads to the conclusion that the parties ment within the scope of the FAA, courts the American Arbitration Association suggests intended to arbitrate issues of arbitrability.22 give due regard to the federal policy favoring that parties use the following language for Thus the referral to arbitration of “all dis- arbitration and, typically, resolve any ambi- clauses in commercial contracts: putes…concerning or arising out of” an agree- guities in an arbitration clause to broadly Any controversy or claim arising out ment evinces a “clear and unmistakable intent embrace rather than limit the applicability of of or relating to this contract, or the to submit questions of arbitrability to arbi- arbitration.12 breach thereof, shall be settled by arbi- tration.”23 This view is bolstered by the pol- tration administered by the American icy against dividing disputes into substan- The Gateway Issue Arbitration Association under its tive and procedural aspects to be determined A party to a contract cannot be required to Commercial Arbitration Rules, and partly by arbitrators and partly by the submit to arbitration any dispute for which judgment on the award rendered by the courts.24 Some courts have held that the lan- the party has not agreed to do so.13 The con- arbitrator(s) may be entered in any guage of these broad clauses does not clearly cept of arbitrability refers to whether parties court having jurisdiction thereof. and unmistakably demonstrate the requisite agreed to submit a particular dispute to arbi- The International Institute for Conflict intention of the parties to arbitrate arbitra- tration. For the most part, arbitrability Prevention and Resolution (CPR) (formerly bility.25 However, the general trend appears involves two interrelated concepts: 1) whether the CPR Institute for Dispute Resolution) to be to interpret broad arbitration clauses the court or the arbitrator14 should decide the suggests the following standard language: consistent with the general policy favoring
36 Los Angeles Lawyer October 2006 arbitration and to relegate to the arbitrator to the existence, scope or validity of the Courts have affirmed that language like all questions of arbitrability. arbitration agreement. that in the providers’ clauses eliminates the Therefore, by adopting commonly used or The National Arbitration Forum Rules First Options presumption and vests the arbi- recommended language in an arbitration state at Rule 20(F): trator with the authority to determine all clause, clients may have agreed unknowingly An Arbitrator shall have the power to challenges to his or her jurisdiction as well as to give up their right to have the courts decide rule on all issues, claims, responses the scope of the arbitration agreement. In the scope of their arbitration agreement and and objections regarding the existence, Lifescan, Inc. v. Premier Diabetic Services, the extent of the arbitrator’s jurisdiction. scope, and validity of the arbitration Inc.,30 a case arising out of a contract for the Doing so can significantly affect a client’s agreement, including all objections sale of medical devices and supplies, the rights because the decisions of arbitrators relating to jurisdiction…. Ninth Circuit concluded that the parties are well insulated from review, and courts The JAMS rules similarly submit ques- incorporated the AAA’s rules into their agree- have no ability to rectify any arbitral errors tions of the arbitrator’s jurisdiction and arbi- ment by referring to them in their arbitration in law or contract interpretation. Making trability to the arbitrator. Rule 11(c) of the clause. Those rules “in turn, recognize the By routinely incorporating an arbitration provider’s rules into an agreement, the parties may unknowingly agree to have the arbitrator determine the scope of his or her own authority. informed decisions about the language of an JAMS Comprehensive Arbitration Rules and arbitrators’ discretion to interpret the scope arbitration clause and carefully considering Procedures provides: of their authority.”31 the rules of the selected arbitration provider Jurisdictional and arbitrability dis- Despite the similarity of the language in can help clients avoid unwelcome surprises putes, including disputes over the exis- the JAMS rule to the AAA rule, the two should future disputes develop. tence, validity, interpretation or scope courts that have addressed the JAMS rule of the agreement under which have split on whether the incorporation of the Divesting Courts of Jurisdiction Arbitration is sought, and who are JAMS rule expresses a clear and unmistakable Arbitration clauses commonly state that the proper Parties to the Arbitration, shall intent to submit the issue of arbitrability to parties agree to be bound by the rules of the be submitted to and ruled on by the arbitration.32 arbitration provider they select. Often, the Arbitrator. The Arbitrator has the The effect of incorporating an arbitra- parties specifically incorporate the rules of a authority to determine jurisdiction and tion provider’s rules into an agreement is not particular arbitration provider into their arbitrability issues as a preliminary based solely on the FAA. State law contract agreement. Even if the agreement does not matter. principles also regularly apply the rule of expressly incorporate the provider’s rules, Likewise, Rule 8.1 of the CPR rules27 incorporation by reference to enforce arbi- the rules themselves often state that merely by expressly provides that: tration rules referred to in an arbitration agreeing to arbitrate with the specified The Tribunal shall have the power to clause. For instance, Delaware has a long provider, the arbitration rules are deemed to hear and determine challenges to its history of enforcing the intention of parties be incorporated into the parties’ agreement.26 jurisdiction, including any objections to incorporate into the agreement any docu- By routinely incorporating an arbitration with respect to the existence, scope or ments to which the agreement refers.33 provider’s rules into an agreement, the par- validity of the arbitration agreement. Pursuant to the rules of the National ties may unknowingly agree to have the arbi- The CPR states that Rule 8 “should allow Association of Securities Dealers, arbitrabil- trator determine the scope of his or her own arbitrators to decide all issues, including arbi- ity issues also can encompass the timeliness authority. In fact, most arbitration rules con- trability questions, without the necessity for of arbitration demands—and this can directly tain specific provisions divesting the courts of court intervention.”28 In its “Commentary on affect applicable statutes of limitations. NASD jurisdiction to decide gateway issues of arbi- Individual Rules,” the CPR explains that Rule Code Section 10304 provides that no dis- trability. 8 is meant to express principles consistent pute “shall be eligible for submission…where Rule R-7(a) of the AAA’s Commercial with the U.S. Supreme Court’s decision in First six (6) years have elapsed from the occurrence Arbitration Rules provides: Options of Chicago v. Kaplan.29 Thus, pur- or event giving rise to the…dispute.” Section The arbitrator shall have the power to suant to Rule 8, the arbitrator has the authority 10324 further provides that “arbitrators shall rule on his or her own jurisdiction, to decide whether the arbitration will proceed be empowered to interpret and determine including any objections with respect in the face of a jurisdictional challenge. the applicability of all provisions under this
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© 2006 West, a Thomson business L-323853/8-06 MCLE Test No. 152 MCLE Answer Sheet #152 CLAUSE AND EFFECT
Name The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization
Address 1. If an agreement containing an arbitration clause is 11. Agreeing to arbitrate “any controversy or claim aris- illegal as a whole and therefore void ab initio, the arbi- ing out of or relating to” the subject contract is the par- City tration clause is severable. adigm of a broad clause. State/Zip True. True. E-mail False. False. Phone 2. All arbitration agreements affecting interstate com- 12. A broad arbitration clause, by itself, cannot demon- State Bar # merce are subject to the Federal Arbitration Act. strate a clear and unambiguous intention to arbitrate True. arbitrability. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. True. 1. Study the MCLE article in this issue. False. 2. Answer the test questions opposite by marking 3. If a contract affects intrastate commerce in California, the appropriate boxes below. Each question the California Arbitration Act will apply. 13. If the agreement merely selects an arbitration has only one answer. Photocopies of this True. provider but does not expressly state that arbitrability answer sheet may be submitted; however, this form should not be enlarged or reduced. False. is to be decided by the arbitrator, arbitrability will be decided by the court. 3. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to: 4. Once the court determines that the formation of an True. arbitration agreement is not at issue, the court will False. Los Angeles Lawyer direct the parties to proceed to arbitration in accordance MCLE Test P.O. Box 55020 with the terms of their agreement. 14. Under Delaware law, incorporation of the AAA arbi- Los Angeles, CA 90055 True. tration rules into the arbitration clause constitutes a False. clear and unmistakable intent to submit the issue of Make checks payable to Los Angeles Lawyer. arbitrability to the arbitrator. 4. Within six weeks, Los Angeles Lawyer will 5. Courts, not arbitrators, decide the issue of whether True. return your test with the correct answers, a rationale for the correct answers, and a one party to an agreement has neglected or refused to False. certificate verifying the MCLE credit you earned arbitrate. through this self-assessment activity. True. 15. Like the FAA, state law permits the incorporation by 5. For future reference, please retain the MCLE False. reference of an arbitration provider’s rules into an test materials returned to you. arbitration agreement. 6. In construing an arbitration agreement, as with any True. ANSWERS other contract, the parties’ intentions control—but False. Mark your answers to the test by checking the those intentions are “generously construed as to issues appropriate boxes below. Each question has only one answer. of arbitrability.” 16. Parties to an arbitration agreement are free to True. select only portions of a particular arbitration provider’s False. rules. 1. True False True. 2. True False 7. A valid arbitration agreement creates a presumption False. 3. True False of arbitrability. 4. True False True. 17. Under the FAA, arbitration clauses can only prop- False. erly bind clients to rules that existed at the time the 5. True False agreement was made. 6. True False 8. A party cannot be required to submit to arbitration True. 7. True False any dispute for which he or she has not agreed to do False. 8. True False so. True. 18. The California Court of Appeal has held that par- 9. True False False. ties can agree to arbitration rules that do not yet exist. 10. True False True. 11. True False 9. “Arbitrability” is a term that refers to whether a False. 12. True False particular claim is arbitrable and is also known as a gateway issue. 19. An arbitration award can only be reviewed for a man- 13. True False True. ifest disregard of the law. 14. True False False. True. 15. True False False. 16. True False 10. Unless the parties clearly and unmistakably provide 17. True False otherwise, the question of whether the parties agreed 20. The cost of arbitration is: to arbitrate is to be decided by the arbitrator. A. Always less than a court proceeding. 18. True False True. B. Always more than a court proceeding. 19. True False False. C. Extremely difficult to compare to the cost of a 20. A B C court proceeding.
Los Angeles Lawyer October 2006 39 Code.” In Howsam v. Dean Witter Reynolds, written agreement, may vary the pro- Inc.,34 the U.S. Supreme Court, citing to these cedures set forth in these rules. two provisions, resolved a lower court split Rule 1(C) of the National Arbitration by holding that the NASD’s time limit rule Forum’s Code of Procedure provides: does not fall within the class of gateway arbi- Arbitrations will be conducted in trability disputes that are within the court’s accord with the applicable Code of jurisdiction.35 Procedure in effect at the time the So despite any statute of limitations rule Claim is filed, unless the law or the that would otherwise govern the parties’ dis- agreement of the Parties provides oth- pute, if the parties have agreed to NASD erwise. arbitration, their claims may be untimely The ICC Rules of Arbitration state: under the NASD rules. In a recent case, Where the parties have agreed to sub- Pellegrino v. Auerbach,36 the trial court mit to arbitration under the Rules, deferred to the arbitrator to determine which they shall be deemed to have submit- statutes of limitations governed the claims and ted ipso facto to the Rules in effect whether the statutes expired before the claims on the date of commencement of the were filed with the NASD. arbitration proceedings, unless they As is clear from First Options, parties have agreed to submit to the Rules in may expressly agree not to be bound by spec- effect on the date of their arbitration ified rules among the arbitration provider’s agreement. rules. They also may expressly state that, CPR Rule 1.1 requires: notwithstanding their agreement to be bound Unless the parties otherwise agree, by the provider’s rules, they do not agree, nor these Rules, and any amendment intend, to divest the court of its jurisdiction adopted by CPR shall apply in the to decide issues of arbitrability and jurisdic- form in effect at the time the arbitra- tion and expressly do not agree to have such tion is commenced. issues determined by the arbitrator. However, Thus, by incorporating an arbitration counsel should be sure to review the arbi- provider’s rules into an agreement, or by tration provider’s rules to see if doing so agreeing to be bound by the rules, the parties jeopardizes the enforceability of the arbitra- may be agreeing to be bound by rules the arbi- tion clause. For example, the National tration provider may modify or create in the Arbitration Forum’s Rule 48(E) provides that future. As a result, the parties may be sub- the NAF or the arbitrator may decline to jected to future arbitrations governed by rules arbitrate “where the agreement of the Parties very different than those that existed at the Seeking an Experienced has substantially modified a material por- time of the execution of the agreement. In tion of the Code.” addition, the rules may be unlike any the Arbitrator/Mediator? Another option is simply to refrain from parties intended to apply at the time of the selecting a specific arbitration provider at agreement’s formation. For instance, even if the time the agreement is signed. The parties an arbitration provider’s rules do not vest should clearly state in the agreement 1) the the arbitrator with the power to decide issues STEVEN R. specific claims and types of disputes the par- of arbitrability, by the time future disputes SAUER, ESQ. ties intend to arbitrate, and 2) their intention develop, new rules may have divested the that the court decide all issues of arbitrabil- court of any authority over an arbitrability ity, including the scope of the arbitrator’s dispute, contrary to the intention of the par- COUNSELOR AT LAW • SINCE 1974 jurisdiction and the applicable statute of lim- ties. By expressly adopting an arbitration itations. Further, the parties can agree to the provider’s rules and failing to make any excep- method and deadline for selecting an arbi- tion to them, or by failing to specify that a “He is truly a master trator, thus ensuring that no party’s rights specific version of the rules will govern the in his art.” have been unintentionally waived or altered. parties’ disputes, the parties will most likely be deemed to be bound by rules they did not Rules That Do Not Yet Exist 6,000 even know about when they signed their Settled over 5,000 Federal & The selection of a specific ADR provider and agreement. routine incorporation of an ADR provider’s The California Court of Appeal recently State Litigated Cases rules as part of an arbitration clause can sub- addressed this issue with respect to the JAMS ject a client to rules that did not even exist at arbitration rules in Evans v. Centerstone the time the agreement was signed. For Development Company.37 The parties in 323.933.6833 TELEPHONE instance, Rule 1(a) of the AAA’s Commercial Evans agreed to settle disputes arising from Arbitration Rules provides in part: the operation of a real estate development [email protected] E-MAIL These rules and any amendment of company according to the Streamlined Rules them shall apply in the form in effect of JAMS. Among these was Rule 3—a part 4929 WILSHIRE BOULEVARD, SUITE 740 at the time the administrative require- of the 2000 rules—which stated that “JAMS LOS ANGELES, CALIFORNIA 90010 ments are met for a demand for arbi- may amend these Rules without notice. The tration or submission agreement Rules in effect on the date of the commence- received by the AAA. The parties, by ment of an Arbitration…will apply…unless
40 Los Angeles Lawyer October 2006 the Parties have specified that another version of the Rules will apply.”38 The court held that the arbitrator did not exceed his authority by applying the 2002 rules, although the parties’ agreement was executed when the 2000 rules were in effect. There is no reason for clients to agree to be bound by future, unknown arbitration rules, some of which may profoundly affect their rights. The rules of most arbitration providers acknowledge that the parties may want to agree that prior, specific versions of their rules will govern arbitrations. If clients are allowed to do so, they will achieve pre- cisely what they bargained for.
Deciding When to Arbitrate Parties to a deal often believe that even if an arbitrator gets it wrong, the courts will serve as a last resort to correct errors of law. But aside from limited statutory grounds such as demonstrable bias, the decisions of arbitrators are usually reviewed only for a manifest dis- regard of the law. Courts are limited by the presumption that parties who authorize an arbitrator to give meaning to the language of the agreement should not have their awards rejected by a court on the ground that the arbitrator misread the contract.39 The Ninth Circuit Court of Appeals recently reiterated that a court’s review of an arbitration panel’s decision interpreting a contract is “extremely narrow.”40 The court noted, “If, on its face, the award represents a plausible interpreta- tion of the contract, judicial inquiry ceases and the award must be enforced.”41 A simple error in reasoning by the arbi- trator does not provide an opportunity to review the merits of the arbitrator’s conclu- sion.42 Indeed, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he com- mitted serious error does not suffice to over- turn his decision.”43 For one court, the mere reference to the contract as a basis for the decision was enough to reject the argument that the arbi- trator manifestly disregarded the law: “A ‘misinterpretation of [a] contract[ ] will not, in itself, vitiate the award.’ As long as the arbi- trators did not disregard the language of the contract in their interpretation of it, their decision is not manifest disregard of the law. Here, the arbitrators explicitly stated that they reached their decision by construing the language of the contract. Therefore, the Court rules against Plaintiffs on this ground as well.”44 Parties should carefully consider the breadth of the matters they agree to arbi- trate and carefully exclude from arbitration those matters for which they want to preserve their rights to trial and appeal in the courts.
Los Angeles Lawyer October 2006 41 The FAA creates a strong presumption in favor of arbitration. Arbitration providers Myer J. Sankary, Esq. Mediator suggest, and parties commonly adopt, arbi- “YOUR GUIDE TO INNOVATIVE DISPUTE RESOLUTION” tration clauses that confer on the arbitrators Proven track record of over 1,000 successful mediations! the power to decide issues ordinarily decided Business Transactions Insurance by courts. Judicial review of arbitration Construction Real Estate awards is so limited that even blatant errors Torts Employment of law cannot be remedied by the courts. As Probate AV Rated a result, parties who are dissatisfied by an J. D. Harvard Law School 1965; Pepperdine Law School Advanced Mediation Program arbitral award are left with few, if any, options 1996; Director, SCMA; Panel arbitrator and mediator for all LA Superior Courts: Author but to comply with the award. of “Critical Crossroads — Good Decision Making Is Key to Successful Negotiations” Careful consideration should be given to the language of the arbitration clause and to Sherman Oaks, CA • 818.325.8989 • [email protected] whether to choose an ADR provider to gov- www.sankary-mediate.com ern future disputes. If an ADR provider is selected, counsel should carefully review the rules of the arbitration provider. The parties should not only agree to use a specific version There is no substitute for experience. of the rules—they should also agree to any rule modifications that might be appropriate. Over 1,000 Successful Mediations Most importantly, however, when drafting an 12 years as a full-time mediator agreement with an arbitration clause, coun- sel must be sure to fully investigate and 92% of Cases Resolved in 2005 explain the nature of the arbitration provi- Director, Pepperdine Law School’s sions to clients so that they know precisely “Mediating the Litigated Case” program what has been agreed to and what to expect in the future. Do not agree to let the arbitrator LEE JAY BERMAN, Mediator decide the extent of his or her jurisdiction. The client should make that choice. 213.383.0438 www.LeeJayBerman.com 1 Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. ___, 126 S. Ct. 1204, 163 L. Ed. 2d 1038 (Feb. 21, 2006). 2 9 U.S.C. §§1, 2 (1988). 3 See CODE CIV. PROC. §§1280 et seq. Like the FAA, the California Arbitration Act requires the enforcement of a contract according to its terms “save upon such grounds as exist for the revocation of any contract.” CODE CIV. PROC. §1281. Also, the CAA vests the arbi- trator with broad authority to control the proceedings. CODE CIV. PROC. §1282.2(c). Unlike the FAA, the CAA contains a number of provisions for the appoint- ment of an arbitrator in the absence of the parties’ inten- tions in an agreement. See CODE CIV. PROC. §1281.6. Those provisions, however, are not without their lim- its; for instance, a court cannot appoint an arbitrator or require the application of rules to an arbitration to which the parties do not agree. See Martinez v. Master Protections Corp., 118 Cal. App. 4th 107, 120-21 (2004). But see Cronus Invs., Inc. v. Concierge Servs., 35 Cal. 4th 376 (2005) (allowing parties to opt out of the FAA). 4 9 U.S.C. §4 (1988). 5 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967). 6 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). 7 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 n.8 (1995). 8 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). 9 AT&T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648 (1986); Mitsubishi Motors, 473 U.S. at 626. 10 First Options of Chicago v. Kaplan, 514 U.S. 938, 944 (1995). 11 Moses H. Cone, 460 U.S. at 24. 12 Volt Info. Sci., Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475-76 (1989). 13 AT&T Techs., 475 U.S. at 648 (quoting United
42 Los Angeles Lawyer October 2006 Steelworkers of America v. Warrior & Gulf Navigation Terminix Int’l Co., 105 F. 3d 1192 (8th Cir. 1997) Maryland district court in Martek applied Delaware law Co., 363 U.S. 574, 582 (1960)). (clause requiring arbitration of “any controversy aris- to interpret the arbitration clause. In James & Jackson, 14 The arbitrator may be one person or a panel, accord- ing out of” or “relating to” the agreement, did not LLC v. Willie Gary, LLC, the Delaware Supreme ing to the choice of the parties. clearly and unmistakably evidence arbitrator’s author- Court, applying Delaware law, held that the incorpo- 15 Moses H. Cone, 460 U.S. at 24-25. ity to determine arbitrability”). ration by reference of the AAA rules, standing alone, 16 First Options of Chicago v. Kaplan, 514 U.S. 938, 26 See, e.g., JAMS R. 1(b), AAA R. R-1(a), CPR R. 1.1, constituted a clear and unmistakable intent to submit 944 (1995). NAF R. 1(A). the issue of arbitrability to the arbitrator. 17 See id. 27 CPR RULES FOR NON-ADMINISTERED ARBITRATIONS OF 33 State ex rel. Hirst v. Black, 83 A. 2d 678, 681, 46 18 AT&T Techs., 475 U.S. at 649; see also John Wiley THE INTERNATIONAL INSTITUTE FOR CONFLICT Del. 295, 299 (1951). See also Wolschlager v. Fidelity & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47 PREVENTION AND RESOLUTION. Nat’l Title Ins. Co., 111 Cal. App. 4th 784, 790-91 (1964). 28 See id., “Salient Features of the Rules” ¶5. (2003). 19 CPR STANDARD CONTRACTUAL PROVISIONS ¶A. 29 First Options of Chicago v. Kaplan, 514 U.S. 938, 34 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 20 Collins & Aikman Prods. Co. v. Building Sys., Inc., 944 (1995). (2002). 58 F. 3d 16, 18 (2d Cir. 1995); Fleet Tire Serv. of North 30 Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F. 35 Id. at 85-86. See also PaineWebber Inc. v. Bybyk, 81 Little Rock v. Oliver Rubber Co., 118 F. 3d 619, 621 3d 1010, 1012 (9th Cir. 2004). F. 3d 1193 (2d Cir. 1996); Pellegrino v. Auerbach, 2006 (8th Cir. 1997). 31 Id. See also, e.g., Terminix Co., LP v. Palmer Ranch WL 565643 (S.D. N.Y) (notwithstanding conflicting 21 McDonnell Douglas Fin. Corp. v. Pennsylvania Ltd. P’ship, 432 F. 3d 1327, 1332 (11th Cir. 2005) choice of law provisions, statute of limitations dis- Power & Light Co., 858 F. 2d 825, 832 (2d Cir. (“By incorporating the AAA Rules, including Rule 8, pute was for arbitrator to decide). 1988); see also Detroit Med. Ctr. v. Provider Healthnet into their agreement, the parties clearly and unmis- 36 Pellegrino, 2006 WL 565643. Servs., Inc., 269 F. Supp. 2d 487, 492 (D. Del. 2003). takably agreed that the arbitrator should decide 37 Evans v. Centerstone Dev. Co., 134 Cal. App. 4th 22 PaineWebber Inc. v. Bybyk, 81 F. 3d 1193, 1200 (2d whether the arbitration clause is valid.”); Contec 151 (2005). Cir. 1996). Corp. v. Remote Solution Co., Ltd., 398 F. 3d 205, 208 38 Id. at 158. 23 Shaw Group Inc. v. Triplefine Int’l Corp., 322 F. 3d (2d Cir. 2005); Citifin., Inc. v. Newton, 359 F. Supp. 39 United Paperworkers Int’l Union v. Misco, Inc., 484 115, 121 (2d Cir. 2003). 2d 545, 551 (S.D. Miss. 2005); Brandon, Jones, U.S. 29, 38 (1987). 24 Pettinaro Constr. Co., Inc. v. Harry C. Partridge, Jr., Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. 40 Sovak v. Chugai Pharm. Co., 280 F. 3d 1266, 1271 & Sons, Inc., 408 A. 2d 957, 963 (1979) (citing John MedPartners, Inc., 203 F.R.D. 677, 684-85 (S.D. Fla. (9th Cir. 2002) (quoting Employers Ins. of Wausau v. Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964) Sept. 20, 2001); Shaw Group Inc. v. Triplefine Int’l National Union Fire Ins. Co. of Pittsburgh, 933 F. 2d and Local 595, Int’l. Ass’n of Machinists v. Howe Corp., 322 F. 3d 115, 122 (2d Cir. 2003); Apollo 1481, 1485 (9th Cir. 1991)), cert. denied, 537 U.S. 825. Sound Co., 350 F. 2d 508, 511 (3d Cir. 1965)). Computer, Inc. v. Berg, 886 F. 2d 469, 473 (lst Cir. 41 Id. (quoting Sheet Metal Workers Int’l Ass’n, Local 25 See Spahr v. Secco, 330 F. 3d 1266, 1270-71 (10th 1989); Ryan, Beck & Co., LLC v. Fakih, 268 F. Supp. 359 v. Ariz. Mech. & Stainless, Inc., 863 F. 2d 647, 653 Cir. 2003) (use of “any controversy” or “any and all 2d 210, 222 (E.D. N.Y. 2003). (9th Cir. 1988)) (internal quotation marks omitted). disputes” does not clearly and unmistakably demon- 32 Compare Lovell v. Harris Methodist Health Sys., 42 Employers Ins. of Wausau, 933 F. 2d at 1486. strate an agreement to arbitrate arbitrability); Carson 2000 WL 351384, at *3 (N.D. Tex. 2000) (confirm- 43 Sheet Metal Workers, 863 F. 2d at 653 (quoting v. Giant Food, Inc. 175 F. 3d 325, 330-31 (4th Cir. ing arbitrability decision based upon incorporation United Paperworkers, 484 U.S. at 38) (internal quo- 1999) (broad provision committing all interpretive by reference) with Martek Biosci. Corp. v. Zuccaro, tation marks omitted). disputes to arbitrator does not satisfy the “clear and 2004 WL 2980741 (D. Md. 2004). However, the 44 Crye-Leike, Inc. v. Thomas, 196 F. Supp. 2d 680, 688 unmistakable test”); McLaughlin Gormley King Co. v. Martek decision arguably is no longer good law. The (W.D. Tenn. 2002) (citation omitted).
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Los Angeles Lawyer October 2006 43 by Henry Tashman, Jennifer Brockett, and Rochelle Wilcox
Flight or FIGHT Originally invoked in criminal cases, the fugitive disentitlement doctrine is equally applicable in civil disputes C
RON OVERMYER cluded from national whoselocationisunknownorwhooutsidethecountry. likely tobecomeavailablewhentheopposingpartyisaforeign potential opportunityforapplicationofthedoctrine.Itisespecially tives fromjustice. permits acourttodismissactionsorappealsbypersonswhoare recently expressedbytheEleventhCircuit: entitlement doctrinemorethanacenturyagosurvivestoday, as States. fugitive disentitlementdoctrineinthe1876caseof global natureoflitigation.TheU.S.SupremeCourt although itsusehasspikedinrecentyearswiththeincreasingly nation ofhisclaims. Under thedoctrine,afugitivemay, inthecourt was afugitivefromjustice. with acriminalappealwhilethedefendanthadescaped and criminal proceedings,holdingthatitwouldbea Supreme CourtaffirmedtheavailabilityofdoctrineinCalifornia dered wouldbeenforceable.Afewyearslater, in1880,theCalifornia unfavorable result,ithadnoassurancethatwhateverjudgmentren- tioner wasoutsidethereachoflawandwouldlikelyignorean tion camebeforetheCourt.TheCourtreasonedthat,sincepeti- inal defendantwhohadescapedandremainedatlargewhenhispeti- to Mexicowhileappealinghiscriminalconviction. appeal ofAndrewLuster, heirtotheMaxFactorfortune,who Europe, andmorerecentlyapplyingthedoctrinetobarcriminal director RomanPolanksiforseductionofaminorafterhe trine: decliningtoapplyitin1990civilpretrialproceedingsagainst two ofthemostfamouscasesinvolvingfugitivedisentitlementdoc- obedience pendingappeal.Indeed,Californiacourtshavepresidedover warrant, Californiacourtsapplythedoctrinebroadlytoegregiousdis- the federaldoctrinerequiresevasionofacivilorcriminalarrest her conduct,effectivelynegating)theconsequencesofdefeat.While tive couldenjoytheresultsofavictorywhileignoring(andbyhisor possibility of trine isnotsomuchtopunishthefugitive,butrathereliminate criminal andcivilmatters.Thegoalofthefugitivedisentitlementdoc- tlement doctrine,forfeithisorherrighttotrialappeal tice. By result ifthoseadversariesevadearrestandremainfugitivesfromjus- even ifsuchactionwerewarranted,morefavorablejudgmentsmay ivil litigantsmaydreamofthrowingtheiradversariesinjail,yet liminary injunctionorignoringpostjudgmentdiscovery contempt sanctionsmaybeentered all practiceareas,fromfamilylawtocopyright.Anycaseinwhich doctrine maybecomeanincreasinglyusefultoolforcivillitigatorsin caused bytheappellant fl promoting theefficientoperation ofthecourts,discouraging a fugitive,otherrationalesunderlying thedoctrineinclude The fugitivedisentitlementdoctrine dency ofherappeal. appeal ofapartywhoisfugitivefromjusticeduringthepen- It iswell-settledlawthatanappellatecourtmaydismissthe The rationalethatpromptedthedevelopmentoffugitivedis- This equitableremedyhasbeenavailableformorethanacentury, In aworld ights fromjustice,andavoiding prejudicetotheotherside 4 Aside fromthedifficultyofenforcingajudgmentagainst In fl eeing justice,anadversarymay, underthefugitivedisenti- Smith “ “ call[ing] upontheresourcesofCourtfordetermi- fi heads Iwin,tailsyoulose Henry Tashman, Jennifer Brockett, andRochelle Wilcox are partners intheLos Angeles office ofDavisWright Tremaine LLP, lled withgloballitigation,thefugitivedisentitlement , theCourtdeclinedtoentertainpetitionofacrim- ” 2 It iscodi ” 3 … ’ 5 s fugitivestatus. fi ed inneitherfederalnorCalifornialaw. — 1 whether forviolatingapre- practicing primarily intellectual property andcommercial litigation. ” is anequitabledoctrinethat litigation,whereinthefugi- 6 ’ s discretion,bepre- “ farce toproceed Smith fi rst appliedthe — — v. creates a in both United fl “ ed to fugi- fl ed ” has blatantlydisregardedthecourt sonable toexpectacourtexpenditsscarceresourcesononewho ations. With standable disapprovaloffugitivesisbolsteredbypracticalconsider- disentitlement doctrine,stating: favor, andthedefendant/contemnorappealed. Venezuelan court.Thedistrictcourtultimatelyfoundintheplaintiff among otherssteps,presentingthechildrenbeforecourtoraproper order providedthatthedefendantcouldpurgehercontempt by, her incontemptandissuedabenchwarrantforarrest.Thesame and failedtoappearattheshowcausehearing.Thedistrictcourtfound appear withthechildren.Thedefendantagaindisobeyedorder dant shouldnotbeheldincontemptandorderedthedefendantto comply, thedistrictcourtissuedanordertoshowcausewhydefen- ing allpartiesandthechildrentoattend.Whensheagainfailed When shedidnotcomply, thecourtsetastatusconference, order- return herchildrentotheplaintiffinVenezuela within10days. entered anordercompellingthedefendant,acitizenofVenezuela, to International ChildAbductionRemediesAct,thedistrictcourt under federallaw. be easiertoobtaindismissalofanappealunderCalifornialawthan ments forinvokingthedoctrine.Intwoimportantrespects,itmay the twocourtsystemshavedivergedregardingsomeofrequire- courts, andtheirsimilarapplicationofthedoctrineinmanyrespects, tails you insisting uponanexerciseinhypocrisybypursuinga tion ofhisclaims. seeks toinvoketheprocessesoflawwhile cases. “ arrest. and appealswhenacivillitigant federal lawthatthedoctrinecanalsobeappliedtobarcivilactions appeals fromcriminalconvictions.However, itnowiswellestablished The fugitivedisentitlementdoctrinedevelopedinthecontextof to calluponthecourtadjudicatehisclaim. demonstrated suchdisrespectforthelegalprocessthathehasnoright tives, promptingonecourttoexclaim, with courtorders. court shown theywillabidebyadversecourtrulings,whichbothhelpsthe that courtresourcesshouldbepreservedforlitigantswhohave initially infederalcourt,Californiacourtshaveechoedtheprinciple entitlement F u at boththetrialandappellatelevelincriminalcivil g bene is abene appellant] tousetheresourcesof the courtsonlyifoutcome adverse ruling.Moreover, itwould be inequitabletoallow[the behavior todateleaveslittledoubtthatshewoulddefyan contempt sanctionsandhascontinuedtoevadearrest.Her [The appellant]hasrepeatedlyde The Despite thecommonpurposesenunciatedbyfederalandCalifornia The fugitivedisentitlementdoctrinethuspreventsfugitivesfrom The NinthCircuitsimilarlyhasexplained, Thus, federalcourtsapplythefugitivedisentitlementdoctrine i t ’ i ” s crowdeddocketandprovidesanaddedincentivetocomply ” v 13 e 12 Pesin fi ’ D ll never ts ofajudicialsystemtheorders ofwhichshehascon- D For example,in i fi s ‘ to callupontheresourcesofCourtfordetermina- e t toher. We cannotpermit[theappellant]toreapthe “ appellate courtdismissedtheappealunderfugitive n overcrowded docketsandcourtbacklogs,itisunrea- t i fi t ’” nd me l 11 e 7 m Unsurprisingly, courtssimplydonotlikefugi- e n ” t appeal. u u Pesin n d e r “ F v. 10 F ignore[s] courtordersandevade[s] e ’ Although thedoctrinedeveloped Rodriguez s procedures. d fi e ed courtordersandignored “ r [T]he fugitivefromjusticehas a Los Angeles Lawyer l L L a w , anactionunderthe ” “ fl 8 [A]n individualwho outing themhasno ” The courts 9 “ heads Iwin, October 2006 ’ under- fi rst ’ 45 s tinued to flaunt. Accordingly, [the appellant’s] appeal is dis- the court in the forfeiture suit will waste its time rendering a judg- missed.14 ment unenforceable in practice.”28 It is unlikely that this rule would Interestingly, the defendant’s whereabouts throughout this process have broad application beyond the relatively rare—and lucky— were unknown. It is possible that she was outside the jurisdiction when plaintiff who has custody or control over disputed property at the out- each of the orders that led to the arrest warrant, as well as the war- set of litigation and does not require any action or compliance from rant itself, were issued. This did not prevent the court from apply- the fugitive party to obtain complete relief. Under Degen, the doc- ing the doctrine.15 trine does not apply simply to punish the fugitive or coerce his or her Similarly, in Conforte v. C.I.R., a civil plaintiff appealed from a appearance before the court. The fugitive’s absence must actually hin- decision of the tax court sustaining tax deficiencies and penalties while der the enforcement of the judgment, rendering its affirmance an empty he was a fugitive from a conviction for criminal tax evasion. The plain- victory. tiff argued that his civil appeal should not be dismissed because the This limitation is underscored in Empire Blue Cross v. Finkelstein.29 fugitive disentitlement doctrine applies only to criminal appeals. In Finkelstein, the Second Circuit dismissed the appeal of defen- Rejecting this argument, the Ninth Circuit held that the rule applies dants who refused to participate in postjudgment discovery and fled “with greater force in civil cases where an individual’s liberty is not the jurisdiction in order to avoid the impact of a large monetary judg- at stake.”16 The Ninth Circuit therefore dismissed the appeal.17 ment. The court held, “[W]e have discretion to dismiss the appeal of Thus, a fugitive from justice in a criminal matter may, subject to cer- a civil litigant who becomes a fugitive to escape the effect of the civil tain limits, be prevented from appealing a civil matter. judgment.”30 The Finkelstein court distinguished the case from The “fugitive from justice need not be a fugitive in a criminal mat- Degen, holding: ter to warrant application of the disentitlement doctrine.”18 The Disentitlement is appropriate in the present situation, for sev- party’s fugitive status may arise from the civil action itself.19 Indeed, eral reasons. (i) In contrast to Degen, the disappearance of [the the disentitlement doctrine can apply when the “fugitive” status defendants] does not affect some related matter; it impacts the flows from the party’s contempt of court.20 But in federal court the very case on appeal. We see no reason to entertain the cause contempt must result in a bench warrant. The party whose appeal is of one who will respond to a judgment only if favorable. (ii) at issue must actually be a fugitive who fails to appear before the court In Degen, the judgment in the civil proceeding could be notwithstanding the warrant. The federal courts have not permitted enforced despite Degen’s absence. Enforceability concerns dismissal of an appeal based solely on a contempt order unaccom- clearly animate disentitlement doctrine…; here, Judge Wexler panied by an arrest warrant.21 has found that “the defendants’ absence rendered Empire’s judg- Dismissal may be particularly appropriate if the court has denied ment against them unenforceable.”…This factor weighs heav- a stay request and appellant nonetheless continues to disobey the dis- ily in favor of disentitlement. (iii) There is nothing that the dis- trict court’s orders pending appeal. One court explained that such con- trict court can do, consistent with the efficient conduct of its duct “flouts this court’s authority by effecting the very stay that was functions, that might restore the balance of equities, because prohibited by this court’s denial of her motion to stay the contempt the civil proceeding—other than the futile efforts to enforce it— judgment pending appeal.”22 is complete. Disentitlement therefore represents the sole remain- Moreover, it is irrelevant that dismissal will thwart review of the ing means of minimizing the prejudice to Empire caused by order which underlies the contempt finding and bench warrant. The defendants’ fugitive status.31 First Circuit, invoking the fugitive disentitlement doctrine, dismissed an appeal from the contempt orders that resulted in a bench warrant Fugitive Disentitlement under California Law and appellants’ fugitive status, even though the appellants’ fugitive The development of the fugitive disentitlement doctrine under status grew “directly out of [respondent’s] effort to enforce its judg- California law has diverged somewhat from its development under ment in the civil proceeding which consumed years of litigation; and federal law. California generally is more liberal in permitting parties the appeal is from actions and orders of the district court designed to invoke the doctrine. One would think that this would result in a to enforce that very judgment.”23 greater use of the doctrine in California, but this apparently is not the Under federal law, a party’s decision to stay beyond the court’s reach case. Few published cases have discussed the doctrine, suggesting that once an arrest warrant has issued—even if the person never was in it is not used as extensively as it could be. custody—renders that party a fugitive. In United States v. Real Like federal courts, California’s courts have extended the fugitive Property Located at Incline Village, the Ninth Circuit applied the fugi- disentitlement doctrine to civil cases. In one of its earliest cases tive disentitlement doctrine against a U.S. and Swiss citizen who invoking the doctrine in the civil context, the California Supreme Court was residing outside the United States when the order giving rise to dismissed the appeal of a father who had left the country with his chil- his fugitive status was issued. The court held that because the appel- dren in violation of orders awarding custody to their mother. Although lant knew a warrant was issued “but refused to return” to the United the appeal related only to attorney’s fees awarded to the mother— States and submit to arrest, he was a fugitive and his claim could be and not to the custody dispute itself—the court did not hesitate to apply barred.24 the doctrine: Certain limits govern application of the fugitive disentitlement doc- [Appellant’s actions have] wilfully and purposely evaded legal trine. Disentitlement is not proper once the party is in custody.25 processes and contumaciously defied and nullified every attempt Disentitlement also is not automatically available in civil matters when to enforce the judgments and orders of the California courts, the fugitive has become a fugitive from a separate matter.26 For including the very order from which he seeks relief by this example, in Degen, the U.S. Supreme Court (reviewing the Ninth appeal. Such flagrant disobedience and contempt effectually bar Circuit’s ruling in Incline Village) rejected application of the fugitive him from receiving the assistance of an appellate tribunal.32 disentitlement doctrine to bar a fugitive in a drug-related criminal pros- As in federal court, the doctrine may be applied both at the trial ecution from defending a civil forfeiture suit arising from the same and appellate level.33 However, in one well-publicized case, the court facts, because there was “no risk in this case of delay or frustration concluded that it would violate due process to prevent Roman in determining the merits of the Government’s forfeiture claims or in Polanski from defending a civil action based on his fugitive status in enforcing the resulting judgment.”27 Since the court had jurisdiction a related criminal prosecution.34 In this case, a Jane Doe plaintiff and control over the property to be forfeited, there was “no danger brought civil litigation against the famous director based on his
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Copyright © 2006, Deadlines on Demand LLC, all rights reserved. U.S. and foreign patents pending. Deadlines On Demand® and CompuLaw® are a registered trademark of CompuLaw LLC. alleged seduction of her as a minor and asked that he be prohibited from defending the civil lawsuit unless he presented himself in the United States to respond to the criminal indictment arising from the same events. The court rejected the plaintiff’s request, distin- guishing other fugitive disentitlement cases because “[i]n each, the relevant proceeding was initiated by the fugitive.”35 Although it declared Polanski’s absence from the country to be “reprehensible, irresponsible, and unlawful,” the court found that it could not preclude his right to defend the litigation absent failure to comply with discovery requests or a similar violation of a court order.36 The doctrine also has been invoked to dismiss a civil appeal for failure to comply Luz Amelia McClellan with postjudgment discovery;37 an appeal from an order appointing a trustee, based US FEDERAL COURT on the appellant’s fugitive status in related CERTIFIED INTERPRETER criminal proceedings;38 and guardianship IN MEXICO proceedings in which the appellant submits to the court’s jurisdiction but then absconds with the child;39 among others.40 Also, under Tel. +52 (55) 51 35 17 63 Flexibility to work in both California law, as with federal law, it is irrel- E-mail: [email protected] countries. evant whether the dismissal may thwart www.servitrans.com.mx review of the order giving rise to the fugitive status. The California Supreme Court has Fuene Bella #79, Col. Rincón del Pedregal, Mexico City explained: This argument overlooks the fact that even though a portion of the order appealed from may be void, or erro- neous, or unsupported by sufficient evidence, nevertheless the adjudica- tion of contempt is presumably valid, IT’S ABOUT TIME and until that contempt is purged appellant is not entitled to a hearing before an appellate tribunal. The mer- One-Visit Dentistry its of the claims urged by him in sup- port of his appeal will not be deter- We know your time is valuable. That’s why we’ve invested mined, nor will the appeal be heard while he persists in his contumacious in CEREC technology that allows for a faster experience attitude.41 when you need crowns, fillings or veneers. With CEREC, California law and federal law also are there is no need for a temporary and return visit, in about similar, in many respects, in their definition of a “fugitive.” For example, for criminal an hour—leaving more time for whatever is important to defendants, the doctrine applies only while the you. fugitive remains outside of the court’s custody. As one court explained: Ask us about CEREC and all of our other extraordinary [W]e think the defendant has no longer dental services a right to appear by counsel, when he has escaped from custody, until he has returned into custody. By breaking jail and escaping, he had waived the right to have counsel appear for him.…In Conveniently located in Downtown Los Angeles • Next to Morton’s Steakhouse fact, his right to constitute counsel By appointment only and invest him with authority no Esthetic Dentistry Dental Group longer exists while his absence from www.estheticdentistry.net custody continues.42 (213) 553-4535 However, California law differs from fed- eral law in two significant respects. First, it is Dr. Armen Mirzayan, D.D.S. Dr. Jean Lee-Mirzayan, D.D.S. not necessary in California that the missing appellant be an actual fugitive. Indeed,
48 Los Angeles Lawyer October 2006 California permits dismissal of an appeal even if the appellant has not been held in M. NAIR, M.D. EXPERT WITNESS contempt. In TMS, Inc. v. Aihara, for exam- Board Certified: ple, the court answered in the affirmative – Psychiatry the question whether an appeal may “be dis- – Child Psychiatry INDUSTRIAL/COMMERCIAL missed for the willful failure of judgment – Forensic Psychiatry REAL ESTATE debtors to comply with a court order to – Psychopharmacology Care, Duty & Broker Responsibility answer post-judgment interrogatories.”43 The – Addiction Medicine Lease & Purchase Contracts court explained, “It is well settled that this – Harvard and UC Trained Condition of Premises court has the inherent power to dismiss an 44 Years of Experience Consultations • IME • Deposition • Record Review appeal by any party who has refused to com- Second Opinion • Trial Testimony • Civil Litigation ply with orders of the trial court.”44 It went on to make clear that “[n]o judgment of con- 562.493.2218 psychiatryforensic.com JACK KARP State Bar Approved MCLE provider tempt is required as a prerequisite to our (310) 377-6349 FAX: (310) 868-2880 exercising the power to dismiss,” which exists 433 N. Camden Dr., Suite 600, Beverly Hills, CA 90210 “in a variety of circumstances.”45 Thus, the court ordered the appeal dismissed based solely on the appellants’ willful refusal to comply with the trial court’s order compelling responses to postjudgment interrogatories and their absence from the jurisdiction of the court.46 In another case, the court explained that the appellant was not a fugitive, because he had served his prison sentence and lawfully left the United States.47 The court nonetheless dismissed the appeal because appellant’s attor- neys could not find him, explaining that one concern underlying the fugitive disentitle- ment doctrine is “the circumstance that in the event the conviction were reversed and a new trial ordered, the defendant ‘will appear or not, as he may consider most for his inter- est.’”48 The court further explained: The circumstances which have called forth application of the principle have varied greatly, but all the instances of its application illustrate and confirm the basic limitation under which this Court functions, namely, that it can entertain a case and decide it only if there is a litigant before it against whom the Court may enforce its deci- sion.49 Another difference between California and federal law lies in the necessary rela- tionship between the order giving rise to fugi- tive status and the matter on appeal. In con- trast to the U.S. Supreme Court decision in Degen, which established that dismissal is available only if the fugitive status will in some way thwart enforcement of any order entered by the appellate court,50 current California case law does not appear to follow that rule. In one California Court of Appeal case predating Degen, In re Scott’s Estate, the court permitted dismissal of an appeal based on appellant’s fugitive status, although the contempt proceedings giving rise to the fugi- tive status occurred in a different case, and would not affect enforcement of any order entered in the dismissed case.51 The court rested its holding on the rationale “that it would be a flagrant abuse of the principles of
Los Angeles Lawyer October 2006 49 equity and of the due administration of jus- tice to consider the demands of a party who becomes a voluntary actor before a court and seeks its aid while he stands in contempt of its legal orders and processes.”52 However, because Degen rests upon constitutional due process grounds, the rule set forth in In re Scott’s Estate may not remain good law. The fugitive disentitlement doctrine is an effective way to deal with a recalcitrant party if that party refuses to submit to the court’s authority. In both federal and state courts the doctrine is available in a variety of cir- cumstances to prevent one party from embarking on a “heads I win, tails you’ll never find me” approach to litigation. Although the fugitive disentitlement doctrine has not seen much use since its creation more than a century ago, that is changing. With the increasing globalization of commerce—the Internet being one huge and rapidly evolving source of global disputes—the opportunities to invoke this doctrine should drastically increase in the years to come.
1 Sometimes referred to as the “doctrine of fugitive dis- entitlement,” the “disentitlement doctrine,” the “doc- trine of disentitlement,” the “fugitive from justice doc- trine,” the “fugitive from justice rule” and the “fugitive dismissal rule.” Waldman, Mitchell, Application of “Fugitive Disentitlement Doctrine” in Federal Civil Actions, 176 ALR FED. 333 (2002). 2 E.g., Degen v. United States, 517 U.S. 820, 823 (1996); Goya Foods v. Unanue-Casal, 275 F. 3d 124, 128-29 (1st Cir. 2001); Pesin v. Rodriguez, 244 F. 3d 1250, 1252-53 (11th Cir. 2001); Empire Blue Cross v. Finkelstein, 111 F. 3d 278, 280-81 (2d Cir. 1997). 3 Degen, 517 U.S. at 824 (quoting Molinaro v. New Jersey, 396 U.S. 365, 366 (1970)). 4 Smith v. United States, 94 U.S. 97 (1876). 5 People v. Redinger, 55 Cal. 290, 298 (1880). 6 Pesin, 244 F. 3d at 1252-53; accord People v. Kubby, 97 Cal. App. 4th 619, 622-24 (2002). 7 Conforte v. C.I.R., 692 F. 2d 587, 589 (9th Cir. 1982) (citation omitted). 8 Ali v. Simms, 788 F. 2d 954, 959 (3rd Cir. 1986). 9 Id. 10 Antonio-Martinez v. INS, 317 F. 3d 1089, 1093 (9th Cir. 2003); accord Knoob v. Knoob, 192 Cal. 95, 97 (1923); People v. Brych, 203 Cal. App. 3d 1068, 1077 (1988). 11 People v. Kang, 107 Cal. App. 4th 43, 50-52 (2003). 12 Pesin, 244 F. 3d at 1253; see also Conforte, 692 F. 2d at 589 and Goya Foods v. Unanue-Casal, 275 F. 3d 124, 128-29 (1st Cir. 2001). 13 Pesin, 244 F. 3d at 1252. 14 Id. at 1253; see also Empire Blue Cross v. Finkelstein, 111 F. 3d 278, 282 and United States v. Barnette, 129 F. 3d 1179, 1185-86 (11th Cir. 1997) (dismissing defendant’s appeal from contempt ruling because the defendant “is a fugitive from the contempt order and the ensuing bench warrants”); Goya Foods, 275 F. 3d at 129. 15 But see Motorola Credit Corp. v. Uzan, 115 Fed. Appx. 473, 475 (2d Cir. Oct. 22, 2004) (refusing to apply the fugitive disentitlement doctrine where the con- temnors were foreign citizens who resided in a foreign country throughout the proceedings; holding that the “nonresident who appeals an adverse judgment is in a different position than the typical fugitive who leaves a jurisdiction for the sole purpose of evading a judg-
50 Los Angeles Lawyer October 2006 ment.”) 16 Conforte v. C.I.R., 692 F. 2d at 589; see also Parretti v. United States, 143 F. 3d 508, 510-11 (9th Cir. 1998) (withdrawing opinion ordering release from custody given subsequent fugitive status) and Antonio- Martinez v. INS, 317 F. 3d 1089, 1093 (9th Cir. 2003) (refusing to review BIA decision denying asylum given fugitive status). 17 Conforte, 692 F. 2d at 590. The court ruled, how- ever, that if the plaintiff submitted himself to author- ities “within 56 days,” he could move to reinstate his appeal. Id. 18 Finkelstein, 111 F. 3d at 281 (emphasis in original). 19 See, e.g., Pesin, 244 F. 3d 1250. 20 Id. 21 See Feit & Drexler, Inc. v. Green, 760 F. 2d 406, 413- 14 (2d Cir. 1985). 22 United States v. Barnette, 129 F. 3d 1179, 1185 (11th Cir. 1997). 23 Goya Foods v. Unanue-Casal, 275 F. 3d 124, 128- 29 (1st Cir. 2001); see also Barnette, 129 F. 3d at 1182 n.5, 1186 (dismissing an appeal under the doc- – Dale A. Eleniak – trine despite the appellant’s claim that the underlying orders were invalid and hence “there is nothing from Expert Witness/Litigation Analysis which [appellant] is a fugitive”). Real Estate/Commercial & Residential 24 United States v. Real Property Located at Incline Village, 47 F. 3d 1511, 1514, 1516 (9th Cir. 1995), • Standards of Care, Standards and Practices • Broker Supervison reversed on other grounds sub nom Degen, 517 U.S. • Agency and Disclosure 820; see also Barnette, 129 F. 3d at 1184, 1185 n.11. 25 Ortega-Rodriguez v. United States, 507 U.S. 234, Attorney, RE broker, C.A.R. panel attorney, DRE Approved Instructor, over 3,000 real estate 242-49 (1993). This also is the rule in California. inquiries per year since 1991, author of “The Six Page Deposit Receipt” and over 400 R/E related People v. Kang, 107 Cal. App. 4th 43, 52-53 (2003). articles published as “Dales Legal Corner.” 26 Degen v. United States, 517 U.S. 820, 825 (1996). 27 Id. TEL 805-579-7834 Dale A. Eleniak, PLC FAX 805-579-7845 28 Id. at 825. 633 BRECKENRIDGE PLACE, SIMI VALLEY CA 93065 29 Empire Blue Cross v. Finkelstein, 111 F. 3d 278 [email protected] (2d Cir. 1997). 30 Id. at 282. 31 Id. (citation, internal quotes omitted). 32 MacPherson v. MacPherson, 13 Cal. 2d 271, 277 (1939); accord Rude v. Rude, 153 Cal. App. 2d 243 Employment Dispute (1957) (dismissing appeal of husband, then residing in Switzerland, based on his contempt of orders related Mediation Center to child custody and support and attorneys’ fees). 33 Adoption of Jacob C., 25 Cal. App. 4th 617, 623- 24 (1994) (barring parent who fled with child in vio- lation of court orders from defending against petition • Flat Fee/Full day mediation to terminate rights). 34 Doe v. Superior Court, 222 Cal. App. 3d 1406 • Evaluation of strengths, weaknesses and case value based (1990). upon extensive trial experience. 35 Id. at 1409 (emphasis in original). 36 Id. at 1410. • No additional charge regardless of time expended 37 TMS, Inc. v. Aihara, 71 Cal. App. 4th 377 (1999). or locale. 38 In re Scott’s Estate, 150 Cal. App. 2d 590 (1957). 39 In re Kamelia S., 82 Cal. App. 4th 1224 (2000). • All employment matters: discrimination, harassment, 40 In criminal cases, the doctrine also extends to mis- contract, hour & wage, class claims, 17200, 12940, etc. demeanants who flee the court’s jurisdiction. People v. Kubby, 97 Cal. App. 4th 619, 621 (2002). • Our office in historic San Juan Capistrano 41 MacPherson v. MacPherson, 13 Cal. 2d 271, 279 (adjacent to rail transportation) or your facility. (1939). 42 People v. Kang, 107 Cal. App. 4th 43, 49 (2003) (cita- • Call to book a session or to receive our brochure tion omitted; emphasis in original). with rates and c/v. 43 TMS, Inc. v. Aihara, 71 Cal. App. 4th 377, 378 (1999). • Ask to be added to our mailing and 44 Id. at 379 (citations omitted). e-mail list. 45 Id. (citations omitted). 46 Id. at 380. 47 People v. Brych, 203 Cal. App. 3d 1068, 1075 (1988). 48 Id (citation omitted). ROBERT D. COVIELLO 49 Id. at 1076 (citation, internal quotes omitted; empha- (949) 429-7500 sis in original). 50 Degen v, United States, 517 U.S. 820, 825 (1996). [email protected] 51 In re Scott’s Estate, 150 Cal. App. 2d 590, 592 (1957). For your employment disputes...settle on us. 52 Id. at 592-93.
Los Angeles Lawyer October 2006 51 By the Book REVIEWED BY JIM ROBINSON
The Cybersleuth’s Guide to the Internet
The Cybersleuth’s Guide to the Internet the tips on how to find pages that are similar to a specific page. By Carole A. Levitt and Mark E. Rosch The authors go into detail on how to unlock the secrets of the invis- IFL Press, 2006 ible Web—the billions of pages that are not indexed by search engines $59.95, 268 pages and are often overlooked by the casual researcher. Using their sug- gestions, one can find pages in databases and even deleted pages that THOSE WHO USE THE INTERNET for inves- no longer appear on search engines. tigative and legal research should have The The chapter on how to investigate people and their background Cybersleuth’s Guide to the Internet at their is especially eye-opening. The authors illustrate how easy it can be fingertips. Reflecting the growth in the to find phone numbers, addresses, Social Security numbers, one’s polit- amount of information available on the ical persuasion, assets, and the names of one’s neighbors on the Internet, the book has tripled in size from previous versions. The Internet. Using their suggestions, it is even possible to find photos of authors have made it easy for novice and advanced researchers alike individuals and messages that one has posted to discussion groups. to save time and avoid frustration. The Cybersleuth’s Guide to the The Internet can be used to research companies as well as people. Internet includes numerous research examples based on real-world The book lists several government Web sites that one can use to trace research scenarios and is written in plain English. company assets by researching the company’s ownership, registered Lawyers no longer have the luxury of ignoring the Internet for agents, and fictitious business names. One can even conduct a free, research, and even lawyers used to Internet research can learn to use full-text search of a company’s filings and find bankruptcies, judgments, resources more effectively. Other attorneys, however, are still not as and liens. It is easy to see the importance of knowing this informa- comfortable with Internet research tools as they should be. Consider tion when suing or defending a company. In these chapters, the the following: reader is informed of the best sites for a particular topic, along with • In a recent Indiana decision, the court was incredulous that the plain- detailed instructions on how to get the most out of the sites listed. tiff failed to try Google to find the missing defendant as part of his For those who work in litigation, the book is especially helpful. due diligence. The court upheld the defendant’s claim of insufficient The authors have provided detailed chapters on where to find and how service of process and affirmed the dismissal.1 to research expert witnesses, how to verify licenses of would-be • In another recent case, the Louisiana appeals court upheld a deci- experts (including medical licenses), and where to find and how to sion in which the trial court nullified a government tax sale because use research databases (many of which are not accessible through the original tax-delinquent owner would have been “reasonably search engines). In the chapter on using the Internet for legal research, identifiable” and locatable if the government had run a simple the authors illustrate the value of legal-specific portals and directo- Internet search to “locate the named mortgagee.” It was the trial court ries. Free commercial legal portals are reviewed, with dozens of judge who conducted an Internet search and determined that the owner screen shots and tips on how to get the most from these resources. was “reasonably identifiable.” Part of the basis of the appeal was The Cybersleuth’s Guide to the Internet shows its strength by cov- whether or not it was appropriate for the judge to conduct such a ering the design changes that have recently taken place on these search at all to determine this. The appeals court dismissed this major portals. argument.2 Abraham Lincoln once said that if he had six hours to cut down • The ABA’s most recent technology survey found that while nearly a tree, he would spend the first four hours sharpening his axe. This 90 percent of attorneys used the Internet for activities such as read- book operates on the same philosophy. By using the techniques in this ing news or checking their stock portfolios, less than half were using book, readers will sharpen the tools necessary to effectively conduct the public records or company background information that are legal research on the Internet before beginning their search. Indeed, freely available on the Internet. given how easy the authors make it to use the Internet to find perti- The guide is organized with clear headings, hundreds of screen shots nent information on companies, people, experts, judges, govern- of Web pages, Web site names in boldface type, and URLs to make ment resources, substantive legal content, and more, it may be mal- it easy to use. Background information about the sites is provided, practice not to use the skills contained in this book. so the researcher can easily find target sites before starting a search. The book begins with an overview of the Internet and then delves into 1 Munster v. Groce, 829 N.E. 2d 52 (Ind. App. 2005), available at http://caselaw specific chapters on how to best use search engines. This section is .lp.findlaw.com/data2/indianastatecases/app/06080501mpb.pdf. 2 especially helpful for the novice researcher, because it goes into detail Mickey L. Weatherly v. Optimum Asset Mgmt., Inc. & Barbara F. B. Broyles & Stephen Broyles, 2005 La. App. LEXIS 2602. about how to use the advanced search functions to limit queries to particular formats (such as a Microsoft Word Document, PDF, or Power Point presentation) and how to find pages that have been Jim Robinson is an attorney and president of JurisPro Expert Witness Directory, recently updated. Even a more advanced researcher can benefit from an online directory of expert witnesses.
52 Los Angeles Lawyer October 2006 Computer Counselor BY CAROLE LEVITT AND MARK ROSCH
Should Attorneys Use Macs?
IF YOU USE A COMPUTER IN YOUR PRACTICE, the odds are better than Apple offers a wide range of computers, from the Mac Mini, iMac, 90 percent that you are running some version of the Windows oper- and MacPro desktops (starting at $599, $1,299, and $2,499 respec- ating system. Some attorneys, however, use alternative operating tively) to the MacBook and MacBook Pro notebooks (starting at systems, the best known of which is the Mac. For many years a num- $1,099 and $1,999 respectively). While these may seem expensive com- ber of concerns kept attorneys from using Macs. Most often heard pared to entry level desktop computers running Windows, it is impor- were: “There’s no law office software for the Mac,” “You can’t tant to consider what is included (or not) with each machine. The inex- share files with clients or opposing counsel,” “It’s too hard to learn pensive Windows machines usually rely on the slower and less a new system,” or “They’re too expensive.” The currently available powerful Intel Celeron chip. In contrast, all of Apple’s current mod- Apple hardware and software, however, address most of these con- els use the faster Intel Core chip (which is found only in more expen- cerns, giving attorneys new reasons to consider making the switch to sive Windows machines). The inexpensive Windows machine usually Macintosh. Randy Singer is a Northern California attor- ney who uses Macs in his law practice. In the mid-1990s, he founded the online MacAttorney One advantage he cites to using a Mac is ease of use and maintenance. .com resource for attorneys who use Macs. The MacAttorney site features a directory of Mac software for lawyers. Singer also offers a As he puts it, “On the Mac, things just work.” free newsletter for attorneys who use (or are considering buying) a Macintosh computer for use in their practice. Boasting over 5,000 subscribers, the site and e- shares its RAM chips between the video processing card and any open mail list contain tips on using the Macintosh, the latest computer news, applications. The Mac Mini does not share its RAM chips. Therefore, events, and products for law office use, as well as special promotions nothing is slowed down. for attorneys. Singer is also the author of The Macintosh Software Most of the inexpensive Windows machines come bundled with Guide for the Law Office. the Home version of Windows XP rather than the more full-featured One advantage he cites to using a Mac is ease of use and main- Professional version preferred by most technology consultants for its tenance. As he puts it, “On the Mac, things just work.” Because Apple stability and security. The lowest price Mac Mini includes the same, designs the computers and the operating system, “Incompatibilities full-featured operating system as the most expensive MacBook Pro. between the hardware and software are just about nonexistent,” he The hardware offerings can vary considerably, and another factor to says. Because of this, Mac-using attorneys get their work done and consider is software. do not have to worry about their computers. “Overall, my experience is that Windows-using attorneys spend a lot of time and money each Familiar Software year making sure that their computer runs OK.” “There is a huge amount of law office software for the Macintosh,” For Jeffrey Allen, a principal in the Oakland law firm of Graves says Singer. To make it easier to find, Singer compiled a list of more & Allen who has been using Macs in his practice since the early 1980s, than 170 titles on his MacAttorney.com Web site. Each entry includes it boils down to this: “The Mac is better hardware. Additionally, it the program’s name and Web site address, and e-mail and phone con- is easier to use. Moreover, to the extent I want to use graphics, Mac tacts when they are available. Some of these entries also include a brief does it better.” Houston attorney and legal technologist Craig Ball annotation regarding functions, compatibility, and other matters. described his MacBook Pro as “a well-constructed, well-engineered, While software is available to perform many of the necessary prac- svelte machine that will inspire envy,” calling it “the trophy wife of tice management functions (e.g., time and billing, document assem- personal computers.” bly, accounting) these programs are more likely to be Mac-only pro- grams rather than Mac versions of familiar Windows applications. Poll Results Ball has taken that lack of familiar programs to heart, lamenting: Apple owners are certainly happier with their machines than are the “Beyond the ‘core’ Office programs, few of the applications I use are owners of most other computers. In a recent reliability and service available for the Mac OS.” survey, PC World magazine polled 35,000 readers about their expe- Some of the same productivity software (such as Microsoft Office’s riences with technology purchases in six categories. Apple Computer Word, Excel, Power Point, and Adobe Acrobat) that is used on rated ahead of all other manufacturers—with the exception of the niche gaming computer manufacturer Alienware—in the desktop com- Carole Levitt and Mark Rosch are principals of Internet For Lawyers puter category, and Lenovo (what was formerly IBM) in the notebook (http://www.netforlawyers.com) and coauthors of The Lawyer’s Guide to computer category. Fact Finding on the Internet.
Los Angeles Lawyer October 2006 53 Windows machines is available for the Mac. Legislative Intent. Thus, many of the features, functions, and 20 Years Blue Chip menus of Microsoft Word for Mac will be You probably seldom Experience familiar to users of Word for Windows. In Experience need it. both operating systems, cutting, pasting, Resolving the dragging, and dropping function the same But when the need does arise, way. Ball notes one major difference between World’s Most it can be crucial to winning Mac and Windows that stands out for him: Complex Disputes your case. “The later Mac version of Power Point did Complex Disputes less in critical functionality than the earlier Tracking down sources of information can be a frustrating and time consuming process. version in Windows! That’s not Apple’s When legislative history is important to your fault—it’s Microsoft’s—but it meant I could case it can be very cost effective to engage our not use the Mac for my heavily animated professional expertise to research the history Power Point presentations.” Ball is known as and intent of the statutes or administrative a Power Point user whose presentations teach enactments at issue in your case. attorneys how to use Power Point more effec- When you call, you can explain what tively. So for him, that was enough to stop you need, or tell me your situation and I can him in his tracks. “I quit looking when I Reginald A. Holmes, ESQ. make suggestions on possible approaches. couldn’t use Power Point motion path ani- You can draw on my years of experience, so Arbitrator - Mediator - Private Judge mation. That was enough for me.” you will know what is likely to be available Intellectual Property • Entertainment on your topic. You will get a precise quote Outlook Express for the Mac no longer International • Employment for the cost of the project. When you exists, but Microsoft does offer the Entourage Business authorize us to proceed, the report will be in e-mail client as part of the Office Suite. THE HOLMES LAW FIRM your office on the date you specify. Entourage 2004 works with Outlook 626-432-7222 (Phone) Exchange servers. One other bonus of Office 626-432-7223 (Fax) JAN RAYMOND for Mac is the included Project Center soft- [email protected] LEGISLATIVE HISTORY & INTENT ware, which is not offered in the Windows version. Project Center aims to make users www.TheHolmesLawFirm.com Toll Free (888) 676-1947 Fax (530) 750-0190 E-mail: [email protected]. more organized and efficient by putting proj- Also available through the www.naj.net ect-related e-mail messages, files, notes, con- Amercian Arbitration Association 213.362.1900 or www.adr.org State Bar #88703 tacts, and schedules in one place. Another advantage of Office for Mac over Windows, touted on the Apple Web site, is the ability to “take full advantage of Mac OS X Tiger’s powerful ‘Spotlight’ search, which indexes file names, metadata, and even the content inside your Office documents; with one search, you can quickly find the exact document you’re looking for even if you don’t know what it’s called or when you wrote it.” The suggested retail price of the standard Office software for Mac is $399. Another frequently used program is Acrobat. Those familiar with Acrobat for Windows will find the most frequently used features, functions, and menus (including the document commenting and collaboration tools) in the Mac version of Acrobat 7 Profes- sional. The Windows version includes Adobe’s Live Cycle interactive form designer and the ability to “collect, convert, and organize Microsoft Outlook e-mail into searchable Adobe PDF documents.” This feature is not included with the Mac version. The suggested retail price of Acrobat Professional is $449 for Mac or Windows. Users of previous versions can upgrade for $159. For trial presentation using the Mac, Allen likes Trial Smart (www.trialsmart.com), which is similar to Trial Director or Sanction in Windows. The suggested retail price of Trial Smart software is $245 for an individual license and $1,225 for a five-user license. One year of technical support is available
54 Los Angeles Lawyer October 2006 for an additional $50 per user. Visync (www.visync.com) offers Mac and Windows TRUST DEED FORECLOSURES versions of its trial presentation software. Steve Fisher “Industry Specialists For Over 18 Years” The suggested retail price of Visync is $695 Deposition Summaries t Witkin & Eisinger we specialize in the Non-Judicial for either version. A free demo version of A Foreclosure of obligations secured by real property each is available for download. Some software Providing comprehensive, accurate, and or real and personal property (mixed collateral). publishers, however, have stopped support- easy to read deposition summaries for When your client needs a foreclosure done profession- ing the Mac. For example, the last version of discerning law firms since 1987. ally and at the lowest possible cost, please call us at: WordPerfect for Mac was released in the last Call Toll Free 1-800-950-6522 We have always offered free advice to all attorneys. millennium. Similarly, Timeslips discontin- 866-515-6499 ued support for its Mac version in 2002. sfi[email protected] WITKIN Macs Do Windows For rate information, summary samples, and client testimonials, please visit EISINGER, LLC In late 2005, Apple shifted to the same chips www.deposummary.com & RICHARD G. WITKIN, ESQ. CAROLE EISINGER that powered high-end Windows computers. Many industry observers commented that it was only a matter of time before Windows could be run on a computer that had been manufactured by Apple. They were right. It was only a brief time later that Apple released Boot Camp (http://www.apple.com/macosx /bootcamp/publicbeta.html), a free program that allows the newest Macs to run the Windows operating system and Windows applications. While Boot Camp is free, a properly licensed, installable version of Windows XP (Home or Professional editions only) is also required. Boot Camp is still in beta (public testing) mode, and is not considered a final version of the product. Printing the long list of instal- lation instructions before beginning is a good idea, because there is a danger that one could delete the contents of the hard drive by not following the installation instructions prop- erly. That said, Boot Camp offers those who want to use a Mac the ability to run Windows applications without having to own a sepa- rate computer. For Ball, Boot Camp “works very well.…When you follow the directions, it’s XP on a Mac and, by rebooting, you can switch back and forth between OS X and XP.” Ball does, however, voice a common complaint about Boot Camp: “I wish it were easier to move data back and forth between the two,” he says, citing a need for a static clipboard to hold data as the user boots between the two operating systems. Another complaint about Boot Camp is that users cannot operate both operating systems simul- taneously. However, simultaneous use is possible with the third-party software Parallels Desktop for Mac (www.parallels.com). Parallels is capable of running a wide variety of Windows versions, including DOS, 3.1, 3.11, 95, 98, Me, 2000, NT, and XP. Running Windows and OS X simultaneously makes it easier to move files back and forth between the two environments. As with Boot Camp, after installing Parallels Desktop, users must then install Windows. Parallels Desktop works only with the new Intel-powered Apple computers, including iMac, Mac Mini,
Los Angeles Lawyer October 2006 55 Helping computers work with people… MacBook, and MacBook Pro. The suggested since 1989 retail price of Parallels Desktop for Mac is $79.95. (Currently, the better-known Virtual PC, which runs Windows and the Mac OS simultaneously on an Apple computer, is not yet available for the new Intel-based Macs.)
To Switch or Not to Switch PRODUCTIVITY CONSULTING Many of the Mac faithful (and Apple itself) Strategy • Software • Support point to the lack of malware (viruses and other malicious code) that affect the Mac. For • We take a humanistic approach to many, this is good enough reason by itself to technology, enabling you to get things switch, with only one documented virus and done in a practical, easy, and fun way. only a few security exploits targeted at the Mac OS or Mac applications. In contrast, • We are Apple certified experts who security vendor Sophos has identified more can help you develop a technology than 180,000 different pieces of malware strategy tailored to your firm’s needs. targeted at Windows. For those who choose • If something is just not right, we can to run Windows on their Apple computers, find it, and make things work the way it is important to remember that those you want! machines will be vulnerable to the same • We make awfully good gingerbread viruses, trojans, worms, and other malware cookies. as any other Windows computer. This is in addition to being vulnerable to whatever malicious code is targeted at Apple comput- ers running OS X. Apple computer users should protect themselves by installing 626-794-3637 antivirus software to cover all operating sys- www.proconsult.com tems they have installed. When asked for advice for the attorney considering switching to an Apple computer, Ball describes himself as “a Windows guy” but thinks that “most lawyers will be pleased with the Mac, and they will have a better overall experience within a visually richer, more stable, and secure environment.” “If you don’t need to do more than Office “ applications, e-mail and the Net, you will A miss is as good love the Mac,” continued Ball, “and chances are you’ll rarely miss Windows. If you use apps that don’t have a Mac version, Windows as a mile.” on the Mac is just…Windows in a sleeker box.” Ball does, however, bemoan the lack of a second button on his MacBook Pro to per- form the right click functions of a two-but- ton mouse in Windows. (An inexpensive, Even the smallest slip-up in your transactional research can add-on USB mouse can overcome that short- ruin your next deal. So doesn’t it make sense to use the best coming.) tools? Only GSI offers the most comprehensive, easy-to-use Allen puts it succinctly: “Unless you have transactional research, backed by the most solid customer service a specific need for a piece of software that is in the industry. And now we’re raising our own standards even important to your practice and you will use higher with new due diligence tools, enhanced content for M&A heavily, there is no good reason not to get the Mac.” Models, and a more powerful search interface for no-action letters. MacAttorney.com site owner Singer is a bit Find out what you might be missing. more circumspect. When asked the same question, he describes himself as “somewhat ambivalent about suggesting that other attor- Visit us online at gsionline.com or call your neys switch to the Macintosh. I consider the GSI sales representative at 800.669.1154. Macintosh to be a huge advantage that I have over other attorneys. I don’t want to lose that edge.” Apple has recently reported that 50 percent of customers polled in their retail outlets are new to the Mac. Should you © 2006 Global Securities Information, a division of West L-319471/2-06 switch? The choice is yours.
56 Los Angeles Lawyer October 2006 Classifieds
800, Los Angeles, CA 90025, fax (310) 909-8001, e-mail: SLIP, TRIP & FALL EXPERT WITNESS, S. Rosen, Ph.D., Attorney Wanted [email protected]. www.hinshawlaw.com. Only 100+ California jury trials, Marina Del Rey, (800) 666- candidates contacted for an interview will receive a 9794, fax (858) 756-2922, [email protected]. THE LOS ANGELES OFFICE OF HINSHAW & CULBERT- response. EOE. SON LLP, a leading national law firm, is seeking a Senior Associate with at least 5 years of civil litigation experi- Intellectual Property ence to join its growing practice. The candidate must Computer Forensics have extensive courtroom experience and strong writing PATENTS: Inventions, utility models, industrial designs, skills. This is an excellent opportunity for candidates SINCE 1997, ONLINESECURITY serves corporate and patent search, trademark, domain names, copyright, seeking a high level of responsibility in a diverse and pro- legal clients through an IT investigations practice includ- and litigation licenses. In the territory of Russia and for- gressive law firm environment. The Firm provides a com- ing computer forensics, consulting, & investigations. mer USSR. Main office: 13, bld. 5 Myasnitskaya Str. petitive benefits package and opportunity for advance- Computer Forensics encompasses harvesting, analysis, 101000 Moscow, K-9, GSP-9 101999 Russia, telephone: ment. Please submit your cover letter, resume, and writ- network forensics, & electronic discovery identifying 7495-221-8880/81, fax: 7495-221-8885, e-mail: info ing sample in confidence to: Jennifer Romero, Hinshaw & electronic evidence for litigation. Consulting & investiga- @sojuzpatent.com. Web site: www.sojuzpatent Culbertson LLP, 11601 Wilshire Blvd. Suite 800, Los tions provides experts in digital evidence, cyber crime, IT .com. U.S. representative office: Vahan Yepremyan, Esq. Angeles, CA 90025, fax (310) 909-8001, e-mail: jromero investigations, incident response, discovery strategy, & 130 North Brand Blvd. Suite 202, Glendale, CA 91203, @hinshawlaw.com. www.hinshawlaw.com. Only candidates expert witness testimony. 5870 West Jefferson Blvd, USA, (818) 409-1370, fax (818) 409-1373, e-mail: vahan contacted for an interview will receive a response. EOE. Suite A, Los Angeles, CA 90016, (310) 815-8855: Charlie @yepremyanlaw.com. Web site: www.yepremyanlaw Balot (ext. 212) [email protected] or Michael .com. Tashman (ext. 217) [email protected] THE LOS ANGELES OFFICE OF HINSHAW & CULBERT- SON LLP, a law firm with 450 attorneys nationwide, is Ready to Retire? seeking an Associate with at least two years in workers’ Consultants and Experts compensation defense to join its Los Angeles office. We are a diverse, progressive law firm seeking a strong team MED-MAL? Strong medical cases can be big winners for WE ARE A LONG ESTABLISHED, boutique Estate Planning, member with excellent credentials. The Firm provides a you. Do not bet your time until you know how strong your Trust Administration,and Tax Planning firm looking to competitive benefits package and opportunity for case is. Let Dr. Prasanna review your case. Cost-effective grow its business through relationship with a Pasadena or advancement. Please submit your cover letter, resume, litigation support, including questions for experts (depo- other So. Cal. Estate Planning Practitioner who is looking and writing sample in confidence to: Jennifer Romero, sition, cross). Dr. Prasanna, 38 Corporate Park, Irvine, CA to downsize or retire. E-mail: [email protected] or Hinshaw & Culbertson LLP, 11601 Wilshire Blvd. Suite 92606. www.drprasanna.com. (949) 553-9775. call Jo Ann (626) 792-2910.
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Los Angeles Lawyer October 2006 57 Index to Advertisers
Advanced Mediation Services, p. 42 The Holmes Law Firm, p. 54 Roosevelt Lofts, LLC, p. 11 Tel. 818-325-8989 www.sankary-mediate.com Tel. 626-432-7222 www.theholmesfirm.com Tel. 877-88R-SVLT www.rsvelt.com
Alternative Resolution Centers, p. 41 Jack Trimarco & Associates Polygraph, Inc., p. 25 R. S. Ruggles & Co., Inc., p. 42 Tel. 310-312-6002 Tel. 310-247-2637 www.jacktrimarco.com Tel. 800-526-0863 www.rsruggles.com
Aon Direct Administrators/LACBA Professional Liability, p. 5 Law Offices of Rock O. Kendall, p. 23 Sanli Pastore & Hill, Inc., p. 48 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 949-365-5844 www.dmv-law.com Tel. 310-571-3400 www.sphvalue.com
Ashley Mediation Centers, p. 33 Joan Kessler, p. 23 Steven R. Sauer APC, p. 40 Tel. 949-852-0550 www.socalmediator.com Tel. 310-552-9800 www.kesslerandkessler.com Tel. 323-933-6833 e-mail: [email protected]
Ballenger, Cleveland & Issa LLC, p. 40 Jeffrey Kichaven, p. 4 Stephen Sears, CPA-Attorney at Law, p. 24 Tel. 310-873-1717 Tel. 213-996-8465 www.jeffkichaven.com www.searsatty.com
Lee Jay Berman, p. 42 Laguna Beach Visitor & Conference Bureau, p. 19 Servitrans, p. 48 Tel. 213-383-0438 www.leejayberman.com www.lagunabeachinfo.com Tel. 011-52-55-51 35 17 63 www.servitrans.com.mx
Brief Legal Software, p. 55 Lawrence H. Jacobson, Esq., p. 4 Anita Rae Shapiro, p. 50 Tel. 604-629-0928 www.brieflegal.com Tel. 310-271-0747 www.lawrencejacobson.com Tel. 714-529-0415 www.adr-shapiro.com
The California Academy of Distinguished Neutrals, p. 30, 31 Lawyers’ Mutual Insurance Co., p. 7 Judge Peter S. Smith, p. 6 Tel. 310-341-3879 www.CaliforniaNeutrals.org Tel. 800-252-2045 www.lawyersmutual.com www.jadapromotion.com
Cbeyond, p. 43 Lexis Publishing, p. 2, 15 Steven Fisher Deposition Summaries, p. 55 Tel. 866-424-9649 www.cbeyond.net/legal www.lexis.com Tel. 818-563-4496 www.deposummary.com
Coldwell Banker p. 25 M. Nair, M.D. and Associates, p. 49 Stonefield Josephson, Inc., p. 17 Tel. 310-442-1398 www.mickeykessler.com Tel. 562-493-2218 www.psychiatryforensic.com Tel. 866-225-4511 www.sjaccounting.com
Commerce Escrow Company, p. 49 Arthur Mazirow, p. 25 Tarzana Treatment Centers, p. 50 Tel. 213-484-0855 www.comescrow.com Tel. 310-255-6114 e-mail: [email protected] Tel. 800-996-1051 www.tarzanatc.org
Law Office of Robert D. Coviello, p. 51 MCLE4LAWYERS.COM, p. 6 Toshiba/Copyfax Communication, p. 23 Tel. 310-277-7709 www.coviello-law.com Tel. 310-552-4907 www.MCLEforlawyers.com Tel. 714-892-2444 www.copyfax.net
Creative Dispute Resolution, p. 6 Metrocities Mortgage Inc., p. 8 UngerLaw, P.C., p. 21 Tel. 877-CDR4ADR (877-4237) www.adr-fritz.com Tel. 800-464-2484 www.metrociti.com Tel. 310-772-7700 www.ungerlaw.com
Dale A. Eleniak, p. 51 National Arbitration Forum, p. 18 Union Bank of California, p. 9 Tel. 310-374-4662 Tel. 877-655-7755 ext. 6407 www.arbitration-forum.com Tel. 310-550-6400 (B.H.), 213-236-7736 (L.A.) www.uboc.com
Deadlines On Demand, p. 47 National Properties Group, p. 49 United States Postal Service, p. 1 Tel. 888-363-5522 www.deadlines.com Tel. 310-516-0022 Tel. 800-ASK-USPS www.usps.com
E. L. Evans & Associates, p. 32 Noriega Clinics, p. 57 Verizon Wireless, p. 13 Tel. 310-559-4005 Tel. 323-728-8268 Tel. 866-899-2862 www.verizonwireless.com
Esthetic Dentistry, p. 48 Paragon Real Estate Resources, p. 24 Vision Sciences Research Corporation, p. 56 Tel. 213-553-4535 www.estheticdentistry.net Tel. 888-509-6087 www.paragonreri.com/lacba Tel. 925-837-2083 www.contrastsensitivity.net
Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 34 Paulson Reporting & Litigation Service, Inside Back Cover West Group, p. 38, 56, Back Cover Tel. 310-820-3322 www.fragomen.com Tel. 800-300-1214 www.paulsonreporting.com Tel. 800-762-5272 www.westgroup.com
FTI Consulting, Inside Front Cover Productivity Consulting, p. 56 White, Zuckerman, Warsarsky, Luna, Wolf & Hunt LLP, p. 22 www.fticonsulting.com/investigations Tel. 626-794-3637 www.proconsult.com Tel. 818-981-4226 www.wzwlw.com
Steven L. Gleitman, Esq., p. 4 Quo Jure Corporation, p. 32 Witkin & Eisinger, LLC, p. 55 Tel. 310-553-5080 Tel. 800-843-0660 www.quojure.com Tel. 310-670-1500
Golden Gate University School of Law, p. 20 The Reserve Lofts, p. 51 Tel. 415-442-6600 www.ggu.edu/law Tel. 877-843-1778 www.reservelofts.com
Higgins, Marcus & Lovett, Inc., p. 32 Ringler Associates, p. 33 Tel. 213-617-7775 www.hmlinc.com Tel. 888-734-3910 www.ringlerassociates.com
58 Los Angeles Lawyer October 2006 CLE Preview
Common Electronic Discovery Mistakes DATABASE SEARCHES ON TUESDAY, OCTOBER 10, the Los Angeles County Bar Association will host an AND TAX RETURNS online seminar led by Alexander H. Lubarsky addressing the most common errors ON WEDNESDAY, OCTOBER 25, the Los Angeles made by attorneys, corporate IT staff, paralegals, record managers, and even law County Bar Association will host a seminar led by firm litigation support technology staff and vendors when dealing with electronic Marc Kaplan titled “Use of Electronic Database discovery. Learn how to avoid sanctions and adverse inference rulings by not Searches and Income Tax Returns to Uncover, spoiling metadata, running afoul of reasonable retention policies, causing client Discover and Recover Property, Locate People data to be deemed inadmissible, failing to file appropriate motions in support of or and Avoid Being Sued for Malpractice.” All who in opposition to e-discovery techniques, going over budget, and breaking the all- attend the seminar will receive a book of useful important chain of custody. Learn from the mistakes of others before you make them material for future reference. There will also be a yourself. Registration will be held from 11:50 A.M. to noon, with the webinar review of individual, partnership, and corporate continuing from noon to 1 P.M. The registration code number is 009420. income tax returns, and how to read and Free—CLE+PLUS members understand them, where to look, how to find $50—Barristers, Litigation, and Family Law Section Members hidden assets, liabilities, and other items. The $65—LACBA members second part of the seminar will cover the use of $80—all others free and premium databases to run searches on 1 CLE hour individuals and businesses, and how to uncover other “secret gems” such as undisclosed assets. You will learn what records are available quickly, Thirty-ninth Annual Securities Regulation Seminar easily, and inexpensively, to change the ON FRIDAY, OCTOBER 20, the Business and Corporations Law Section will host its annual outcomes of your cases. See what your seminar on securities regulation. Top Washington and regional Securities and Exchange opponents already know about you and your Commission officials, together with representatives of other regulatory agencies as well clients. You will be shocked and amazed at what as leading private practitioners, will present a comprehensive review of current events records are available. Learn how the use of and developments in the securities field. This seminar will include an overview of database searches yields dramatically higher judicial, regulatory, and enforcement developments, as well as recent trends in the judgments; locates missing people, hidden public and private offerings of securities, mergers and acquisitions, and other matters entities, and assets; and uncovers critical of interest to the securities bar. The keynote speaker will be SEC Chairman information about a case or party. The program Christopher Cox. will take place at the LACBA Conference Center, On-site registration and continental breakfast will begin at 8 A.M. After a general 281 South Figueroa Street, Downtown. Reduced address on securities regulation, breakout panels will cover such topics as corporation parking is available with validation for $9. On- finance, advising companies when criminal allegations arise, mergers and acquisitions, site registration and the meal will begin at 5 P.M., financing small and medium-sized companies, securities litigation update, executive with the program continuing from 5:30 to 9:15 compensation, enforcement developments, and ethics and the securities lawyer. The P.M. The prices below include the meal. The seminar will take place at the Millennium Biltmore Hotel, 506 South Grand Avenue, registration code number is 009399. Downtown. The registration code number is 009256. The prices below include the meal. $75—CLE+PLUS members $250—CLE+PLUS members $125—Family Law, Litigation, Taxation, and $270—Business and Corporations Law Section members Barristers Section members $375—all others $150—LACBA members $1,350—buy five tickets, get one free $205—all others 6.5 CLE hours, including 1 hour of ethics 3.5 CLE hours
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update.
Los Angeles Lawyer October 2006 59 Closing Argument BY DANA H. SHERIDAN
Step Away from the Laptop, Please
I RECENTLY RECEIVED MY LAW SCHOOL alumni magazine. Prominently So I went back to my office and read my dissertation on the life and displayed on page one was a photograph of students in a contracts times of the witness, really paid attention to it. And it was right there, class. In the foreground stood this little speck of a teacher, and up the exactly what we needed. stadium seats sat all the students—row after row of students with row I learned something that day. I was so busy typing that I might have after row of laptops in front of them. And I thought, “Wow! Look missed what the deponent was really saying. Depositions are a con- at all those computers.” But then I quickly became grateful that versation. You need to listen and you cannot listen—really listen— when I was in law school we students still took notes using those pre- if you are typing. I have had some great moments in depositions that historic tools of pen and paper, because the sound of keys clacking, happened only because I was really listening to what the deponent clacking in the classroom would have driven me clean out of my mind. was saying and was closely watching the person’s body language. Fast forward a couple of months. I am at the firm talking to one Words and messages can be subtle; you have to be ready. Just as of my colleagues about all those laptops I see everywhere. In law schools, in coffee shops, on airplanes, at bar exams. Now A laptop has a definite and tailored role in the life of a lawyer and before I go further, let me say that I have a laptop, and I use it—a lot. I use it when I travel; I use it to work from home; I use should not be seen or heard in certain situations. it to watch movies and to download pho- tographs and music; I use it for remote access to my office files; and I use it to surf the Internet. I love my laptop, and I use it for all sorts of things. you cannot be married to a question outline if you want to get some- Anyway, my colleague and I were in the lunchroom discussing the where with a witness, you cannot be so consumed with your depo- laptop issue from very different perspectives. He took the bar exam sition “summary” that you are not truly hearing what the deponent using a laptop and has taken his laptop to depositions. He told me is saying. And believe me, if you have a laptop there, you will want that he thinks better when he is typing, that he cannot write his to make sure your sentence structure is perfect. You will not be able thoughts as fast as he can type them. I think many people would agree to type what the person says and ignore grammar. You will find with him. And I think in some situations he is right to be typing and yourself with an obsessive need to make sure that what the deponent not hand writing. The bar exam might be one of them. You should says goes under the proper section of your summary. I mean, think do what you need to do to get through that horrible exam. So maybe how much time you are saving by getting that sentence perfectly punc- the use of laptops might be necessary to get you through the bar, but tuated and under the proper header right then and there. After all, laptops should not journey with you through your whole life as a those of us who take notes at a deposition have to go back to the office lawyer. I think a laptop has a definite and tailored role in the life of and spend more time creating a summary after the fact. Whereas those a lawyer and should not be seen or heard in certain situations. Like of you who take laptops to the deposition really are multitasking, depositions. In my view, the only person typing at a deposition attending the deposition and summarizing at the same time—two tasks should be the court reporter. for the effort of one. Except that you are not really present in the Maybe I am just lucky; I had early intervention. Once upon a time, moment if you are typing. in my greener days, a really great trial lawyer I used to work with sent But if you must bring that laptop with you, here are a few rules: me to a deposition. I took my laptop. And boy, did I take notes. There Step away from the laptop when it is your turn to talk to the witness. was not one thing I missed. My deposition summary was 30 pages Never ever disrespect the witness by playing solitaire on your laptop. long, single-spaced, with a huge staple in the upper left corner. I tran- And finally, don’t feel the need to type everything; instead, use your scribed every single thing that man said and organized it all under a time with your laptop to create something meaningful for the person hundred headers and subparts. I was so proud. who will be reading it. Be sure to highlight those few moments, I gave that “summary” to the partner. He smiled at me and said, those few words that really matter to your client and your case. “So what did he say?” And I sat there. And sat there. And I tried to And if you see me at a deposition and you have a laptop with you, think of what the man said, what the man told me that was impor- don’t worry. This is just my view and not everyone is going to walk tant to my client and to what we wanted to say at trial. And I could my way—away from their laptops. not. Because I was so immersed in getting it all down, in capturing every single thing the deponent said, I never really heard him at all. Dana H. Sheridan is an associate in the Los Angeles office of Tressler, The partner handed my deposition treatise back to me and said, Soderstrom, Maloney & Priess, LLP, where she specializes in complex mul- “Take this back to your office, read it, and come back and tell what tiparty civil litigation in the areas of bad faith, insurance coverage and I need to know—in one paragraph, using as few words as possible. defense, products liability, toxic and mass torts, and general litigation.
60 Los Angeles Lawyer October 2006
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