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Los Angeles lawyer EARN MCLE CREDIT Dominick C. Capozzola Extraterritorial discusses how litigants can invoke the Searches constitutional right page 33 to privacy in order to oppose discovery Investment demands in China page 28 page 12 Capital Gains Discovering Tax Reductions page 25 Privacy Ending Section 17200 Abuses page 42 Together We’re Stronger …and better able to fill your insurance needs

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Contents page 28 Los Angeles Lawyer departments

The Magazine of the 12 Practice Tips The new climate for international Los Angeles County investment in China Bar Association By John I. Gordon and Xuhua Huang November 2003

Vol. 26, No. 8 19 Practice Tips Searches in public schools create many Fourth Amendment tests cover By Johanna R. Shargel

25 Tax Tips Estate planning to reduce capital gains taxes By Terence S. Nunan and William R. Burford

86 Computer Counselor How to access public library databases for research purposes features By Carole Levitt

columns 28 Discovering Privacy 10 Barristers Tips Litigants may be able to revive statutory objections to discovery Keeping track of trial deadlines requests by invoking the constitutional right to privacy By Luci-Ellen Chun By Dominick C. Capozzola 92 Closing Argument Can you keep a secret? By Edward Poll 33 Searching Far and Wide Dominick C. Capozzola practices 84 LACB Foundation Defense counsel can challenge a questionable extraterritorial labor and employment 2002-2003 Fund Drive Results search, although they face an uphill battle litigation as an associate in the 89 Index to Advertisers By Mark Mermelstein Los Angeles office of Ogletree, Plus: Earn MCLE credit. MCLE Test No. 120, 90 Classiﬁeds sponsored by CourtCall LLC, appears on page 37. Deakins, Nash, Smoak & 91 CLE Preview Stewart, P.C. In “Discovering

Privacy,” he examines how 42 So Unfair and Foul The key to curbing abuses in Section 17200 litigation may lie asserting the constitutional in changing the application of the attorney’s fees provision of right to privacy in response to CCP Section 1021.5 discovery motions can By Eliot G. Disner and Noah E. Jussim safeguard information that may otherwise be subject to disclosure. His article begins 48 Special Section on page 28. Semiannual Guide to Expert Witnesses page 42 EMPLOYMENT DISPUTE MEDIATION CENTER LosAngelesLawyer VISIT US ON THE INTERNET AT www.lacba.org/lalawyer Let experienced employment law litigator E-MAIL CAN BE SENT TO [email protected]

EDITORIAL BOARD ROBERT D. COVIELLO Chair assist you in the resolution of your employment dispute. JERROLD ABELES Articles Coordinator GARY RASKIN

ANN M. AGUILAR SERVICES PROVIDED: DANIEL L. ALEXANDER HONEY KESSLER AMADO ETHEL W. BENNETT FLAT FEE ROBERT J. COMER CHAD C. COOMBS • All day mediation KEITH E. COOPER ANGELA J. DAVIS • No charge for additional time on same day HEATHER DAVIS KERRY A. DOLAN GORDON ENG OUR CENTRAL ORANGE COUNTY DANIEL A. FIORE OFFICE OR YOURS JOSEPH S. FOGEL MICHAEL E. FOX • Will travel within the state at no STUART R. FRAENKEL MICHAEL A. GEIBELSON additional fee TED HANDEL DEAN HANSELL STEVEN HECHT LIBERAL CANCELLATION POLICY KATHERINE M. HIKIDA JOHN P. LECRONE • No charge if cancelled within HYACINTH E. LEUS PAUL MARKS 72 hours of session ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. KAREN NOBUMOTO EXPERIENCE DENNIS PEREZ • Knowledgeable in all areas of employment GERALD F. PHILLIPS EDWARD POLL law; has litigated hundreds of employment THADDEUS M. POPE JACQUELINE M. REAL-SALAS matters representing both Plaintiffs NINA RIES and Defendants SUE CAROL ROKAW KURT L. SCHMALZ JACOB STEIN • No need to expend time educating CARMELA TAN the mediator R. BRUCE TEPPER JR. PATRIC VERRONE JOEL B. WEINBERG OPINIONS BASED ON EXPERIENCE STAFF • The value, strengths, weaknesses and Publisher and Editor risks involved in a case SAMUEL LIPSMAN Senior Editor • Full analysis of law, facts and defenses LAUREN MILICOV Associate Editor • Jury appeal/probability of a favorable ERIC HOWARD Art Director outcome LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director ROBERT D. COVIELLO LINDA LONERO Mr. Coviello has been actively practicing in Account Executive MARK NOCKELS Orange County for over 22 years. He has Advertising Coordinator personally tried over 50 jury trials and has been WILMA TRACY NADEAU Administrative Coordinator lead counsel in several hundred arbitrations and MATTY JALLOW BABY mediations in employment related matters. He LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar is an Arbitrator on the Employment Panel of Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional AAA and the most recent past Chair of the O.C. mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; Bar’s Labor and Employment Law Section. single copy price: $3 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 EMPLOYMENT DISPUTE 55020, Los Angeles CA 90055. Copyright ©2003 by the Los Angeles County Bar Association. All rights MEDIATION CENTER 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). (714) 557-7500 The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the www.coviello-law.com Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 LOS ANGELES LAWYER / NOVEMBER 2003 “BrownSM picks up my packages and I don’t own a big business. I don’t even own a small business. Don’t tell them, OK?”

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WHAT CAN BROWN DO FOR YOU?SM UPS.com® 1-800-PICK-UPS® © 2003 United Parcel Service of America, Inc. LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503 REAL ESTATE ARBITRATOR Telephone 213/627-2727 • Over 30 years experience as a real estate lawyer dealing with industrial, commercial, Visit us on the Internet at www.lacba.org office and shopping centers including purchases, sales, leasing, ground leasing, financ- ASSOCIATION OFFICERS: ing, development, joint ventures, construction, brokerage, title insurance, easements President and protective covenants. ROBIN MEADOW President-Elect • 18 years as counsel to the forms committee of the American Industrial Real Estate JOHN J. COLLINS Association, publishers of the AIR ease and purchase forms. Senior Vice President • Real estate law and ADR lecturer on CA State Bar sponsored programs, the extension EDITH R. MATTHAI Arthur Mazirow Vice President/Treasurer divisions of UCLA, UCI, UCSB and various educational and realty organizations. CHARLES E. MICHAELS • AAA Commercial Panel Member. Assistant Vice President BERNARD E. LESAGE Tel 310-255-6114 Fax 310-391-4042 Email [email protected] Assistant Vice President 3415 S. Sepulveda Blvd, Los Angeles CA 90034 DANETTE E. MEYERS Assistant Vice President GRETCHEN M. NELSON Executive Director The National Institute for Trial Advocacy RICHARD WALCH Associate Executive Director/General Counsel Building Trial Skills Program W. CLARK BROWN n $ January 2 10, 2004 Loyola Law School BOARD OF TRUSTEES NITA's Building Trial Skills program is the key DAVID B. BABBE LINDA D. BARKER to advancing your trial skills training. SCOTT W. CARLSON LUCI-ELLEN M. CHUN To register or for more information call: 800-225-6482 KATESSA CHARLES DAVIS KERRY J. DOCKSTADER NITA is a State Bar of California MCLE approved provider. GARY A. FARWELL DEBRA S. FRANK National Institute for Trial Advocacy RICHARD B. GOETZ Notre Dame Law School $ P.O. Box 6500 $ Notre Dame, IN 46556-6500 CRISTINA E. PEREZ GONZALEZ Fax: 574-271-8375 $ E-mail: [email protected] $ www.nita.org RITA GUNASEKARAN STEPHEN T. HOLZER BRUCE G. IWASAKI SAMANTHA PHILLIPS JESSNER HERBERT KATZ JEFF KICHAVEN DENA A. KLEEMAN JOEL W.H. KLEINBERG PHILIP H. LAM LAWRENCE E. LEONE ELAINE W. MANDEL JAMES C. MARTIN JUDITH SEEDS MILLER JENNIFER F. NOVAK CYNTHIA F. PASTERNAK AMY M. PELLMAN WINSTON A. PETERS MARGARET P. STEVENS KIYOKO TATSUI KATHLEEN J. TUTTLE SCOTT E. WHEELER AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER/MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY GLENDALE BAR ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS’ CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION 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

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6 LOS ANGELES LAWYER / NOVEMBER 2003 Is A Malpractice Insurance Crisis Looming In Your Horizon? Are You Ready?

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The Court was so enamored with our cover selec- question, though, is certainly tion process that it used it as a The invisible price legitimate (and one that I, in a Jerry Abeles is a basis for admissions programs litigation partner in is always right. rare moment of vanity, asked throughout the country. many years ago when I joined the Los Angeles of- The cover is ultimately We’ve got it. the Editorial Board). fice of Friedemann selected by the magazine’s pro- Nationwide. On a percentage basis, it is O’Brien Goldberg & fessional staff, based on all the more difficult to find one’s face Zarian LLP. He is the criteria. We, the volunteer mem- The finest traditional furniture on the cover of this magazine chair of the 2003-04 bers of the Editorial Board, for at non-traditional prices! than it is for a college student to Los Angeles Lawyer good or for ill, play no role in get into one of this country’s Editorial Board. selecting the cover. If you do not invisiblefurniture.com elite law schools. We publish 11 believe me, feel free to try to 818 757-1444 issues each year, which contain bribe your way onto the cover. approximately 70 substantive articles from There is only one way to guarantee an which a cover article is selected. The cover of appearance on the cover, and that is to the July/August issue always features the become the president of the Association. If incoming president of the Los Angeles County being on the magazine’s cover is truly your Legislative Intent. Bar Association, which leaves only 10 cov- goal, now is the time to become an active You probably seldom ers for which nearly 70 authors vie each year. member in the Association and start the long need it. The magazine’s goal is to feature attor- climb up the ladder. neys who represent the diverse membership There are also a few ways to guarantee But when the need does arise, of the Association. An attorney from one of the that you will not grace our cover. No member it can be crucial to winning nation’s largest firms may be on the cover one of the magazine’s Editorial Board can appear your case. month, while a sole practitioner could grace on the cover, even if we fit all the criteria and the cover the next. Attorneys with 35 years of submit an insightful article that would have Tracking down sources of information can be experience are as likely to appear as those received cover placement had it been written a frustrating and time consuming process. who graduated from law school within the by an attorney who is not a member of the When legislative history is important to your past five years. A broad-based, diverse prac- board. Nor can attorneys who do not practice case it can be very cost effective to engage our tice gives an author no more chance for cover in Los Angeles County—unless they are professional expertise to research the history placement than an attorney with a niche spe- members of the Association. Nonattorneys and intent of the statutes or administrative enactments at issue in your case. cialty. We seek to highlight the variety of sub- generally do not make the cover, though a few When you call, you can explain what stantive law areas in which the Association’s (notably actors Alan Alda and Mel Brooks you need, or tell me your situation and I can membership practices. Periodically, race and and rappers 2 Live Crew) sneak onto the make suggestions on possible approaches. gender are factored into the equation. cover of the annual Entertainment Law issue. You can draw on my years of experience, so The articles appearing in each issue also And under no circumstance can a law firm’s you will know what is likely to be available play a role in the selection of the cover. The public relations team “buy” or “ensure” place- on your topic. You will get a precise quote cover article is one that we hope will have ment on the cover. for the cost of the project. When you wide appeal to our readers, the members of The cover selection process is neither art authorize us to proceed, the report will be in the County Bar. Most preferable is an article nor science and certainly cannot be gamed. your office on the date you specify. that will be of interest even to attorneys who As with graduate school admissions, while JAN RAYMOND do not practice in the field reflected by the certain facts (a well-written article that has article. broad interest) can weigh in an author’s favor, LEGISLATIVE HISTORY & INTENT In short, the approach is holistic, embrac- those facts cannot guarantee that the author’s Toll Free (888) 676-1947 ing a wide range of factors, most of which are face will land in 22,000 mailboxes. ■ Fax (530) 750-0190 ■ E-mail: [email protected]. www.naj.net beyond each author’s control. In many ways, the magazine’s cover selection process is State Bar #88703 comparable to the approach to law school

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By Luci-Ellen Chun

Keeping Track of Trial Deadlines Spending some time to calendar the countdown to trial helps attorneys focus on each step

n the past, civil cases could take five years to get to trial. At the day 210, the court may refer the case to judicial arbitration under time of this writing, however, the trial delay reduction program sets Government Code Section 68616(g). Ithe goal that 90 percent of general civil cases must be completed At this time, the progression to trial begins to accelerate. Day 230 within one year after filing, 98 percent within 18 months, and 100 per- is the last day on which counsel may file (and serve by personal ser- cent within 24 months after filing. Following this mandate, it is pos- vice) a motion for summary judgment. Notice of the motion and sup- sible to chart a time line for a hypothetical civil case. The time line porting papers must be served at least 75 days before the hearing, with assumes that no extensions or exceptions apply, and each day listed the motion to be heard no later than 30 days before the trial. The attor- is the last day on which the action may be completed. ney should therefore calendar extra time to correct or supplement the On day one, the complaint is filed. On this day it is worth your time motion before the hearing date. Day 245 is the deadline to stipulate to mark your calendar. Deadlines will approach quickly. Check the to mediation. deadlines for discovery in California Code of Civil Procedure Sections An opposition to a motion for summary judgment must be filed at 2019 et seq. and mark the deadlines as they apply to your case. Under least 14 days before the hearing date (day 291), and counsel should the California Rules of Court, the summons and complaint must be file before this deadline if service is not via personal service. The reply served and the proof of service (POS) must be filed with the court is due at least 5 days before the hearing. The discovery “cut off” and by day 60. If the POS is not filed on time, the court can issue an order the hearing on the motion for summary judgment (day 305) follow to show cause, and the attorney who missed the deadline will have quickly thereafter. Then, on day 320, counsel should be ready for a to explain why the POS was not filed on time. Also during the first two hearing on discovery motions and to exchange witness lists, exhibit months, discovery is scheduled or has begun. lists, and trial briefs. Five days later the final status conference occurs, The Internet can be of great assistance in keeping a case on and on day 335 the trial begins. schedule. Association members can access interactive Judicial Council forms and obtain information on where to file at the Association’s Web Proposed New Rules site (www.lacba.org). The site also offers a searchable superior court In January, a consortium of attorneys expressed concern to Chief civil register, profiles of jurists, superior court calendars, hours, Justice Ronald George over the application of the trial delay reduction phone numbers, maps, and parking information. California code sec- program—and in particular, the percentage goals in Standard 9 of the tions can be found at the California legislative information site at California Rules of Court. In February, the Judicial Council appointed www.leginfo.ca.gov/calaw.html. In addition, Judicial Council forms and a Blue Ribbon Panel to make recommendations, which it did in July. the California Rules of Court can be found at the Judicial Council Web In October (before the publication of this article), the California site at www.courtinfo.ca.gov. Judicial Council is expected to decide on the proposals, which are Under the rules of court, by day 90 responsive pleadings must be intended to make civil case management filed. If the defendant has not responded to the complaint, the plain- procedures more flexible. The proposed tiff can request an entry of default at day 100. By day 135 (approxi- changes should allow courts to focus on mately four months), the plaintiff must send the notice of case man- the facts of each case and observe the agement conference to the defendant. In addition, both sides must fill Code of Civil Procedure when setting out and file Judicial Council Form CM-110, which is the case man- deadlines for discovery. agement statement. By day 150 (15 days after the notice), the parties However, whether these proposed should meet and confer, with counsel prepared to discuss each item changes are implemented or not, coun- on the case management statement. sel should be sure to review applicable By day 180, the court must hold the initial case management con- statutes and rules. Numerous deadlines ference. At the conference, the attorney must appear personally will occur besides those that appear on (unless excused by the court) and should be prepared to discuss the the basic time line. There will be depo- Luci-Ellen Chun is status of the case. The court will then issue a case management sitions, status conferences, and attempts president-elect of the order, which will provide additional deadlines. The deadlines that the at settlement. In addition, it is quite likely Barristers. attorney will need to add to the calendar may include the trial date and that occasions will arise on which ser- the dates for status and settlement conferences. If a jury trial is vice proves defective or supplemental or demanded, the attorney should be sure to pay the fees on time. By amended documents need to be filed. ■

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The New Climate for International Investment in China

Key reforms open services, venture capital invest- flowing in and out of the coun- funds.4 SCFCs may not conduct ments, and logistics to support try, is the long-term, revolution- the business of FMCFCs, and up China’s financial the next phase of its economic ary effect of China’s WTO vice versa. growth. These fields are also reforms. Requirements for the estab- services, venture among California’s traditionally lishment of SCFCs and FMCFCs strong economic drivers. On the The Basic Reforms differ in details, although both capital, and heels of these reforms, a num- China’s fledgling financial ser- address issues of legal establish- ber of major California-based vices market, for years reserved ment, competence, minimum cap- logistics sectors multinational companies are only for domestic firms, is now italization, and good standing. actively increasing their invest- being substantially opened to The regulations require that ments and commitments with experienced foreign providers. SCFCs and FMCFCs be formed hina’s recent entry into the China. The time is now ripe for In an important legislative step as limited liability companies. The World Trade Organization well-placed medium- and smaller- toward fulfillment of China’s Securities Company Regulations C(WTO), the most impor- sized California enterprises to WTO commitments in the capital further provide that the foreign tant economic event in that coun- enter the Chinese market and market sector, the China investor of a SCFC must meet try since its economic reforms take advantage of China’s low- Securities Regulatory Commis- the following criteria: began more than 20 years ago, wage labor costs, developing sion (CSRC) issued the Regula- 1) Its home country has an estab- signals its willingness to assume labor skills, reduced restrictions tions for Establishment of Securi- lished securities legal and super- an important role in the global and red tape, and progressive ties Companies with Foreign vision system, and the home economy. These developments business climate. Capital (henceforth, Securities country’s securities supervision are particularly important to Los Opening the doors wider to Company Regulations) and the authority must have signed a Angeles. In 2002, China replaced outsiders, while monumental, is Regulations for Establishment of cooperation memorandum with Japan as Los Angeles’s top trad- but one side of China’s WTO Fund Management Companies China.5 ing partner, as two-way trade reform efforts. China is certainly with Foreign Capital (henceforth, 2) It must be qualified to oper- between China and encouraging world Fund Management Company ate in the securities business in its the United States John I. Gordon prac- industry and ser- Regulations), both of which be- home country and have more in the Los Angeles tices in Los Angeles vices to move into came effective on July 1, 2002. than 10 years’ experience pro- Customs District and Hong Kong in China, but the The two sets of regulations viding financial services without rose to $55 billion. association with the recent Chinese establish the basic parameters incurring any major judicial or Of that amount, the PRC law firm King & reforms also sup- for securities companies and fund regulatory penalties in the past 3 imports from Chi- Wood and specializes port Chinese in- management companies with for- years. na into greater in Sino-foreign trans- dustry and ser- eign capital (SCFCs and 3) The investor’s risk control Southern Califor- actions. Xuhua Huang vices in moving FMCFCs, respectively). The index for the past three years nia were $49 bil- is a partner of King & overseas and pro- types of businesses that SCFCs must meet the requirements stip- lion, or 32.4 per- Wood, where he moting Chinese and FMCFCs may conduct, how- ulated by its home country secu- cent of the region’s practices corporate brands and goods ever, are quite different. SCFCs rities supervision authorities. total value of cus- finance law. Wendy abroad. The real are allowed to operate a broad 4) It has a sound internal control toms imports, and, Yan assisted in the interaction and scope of businesses, including and management system. with $6.1 billion research for this effect of China’s the underwriting of RMB-denom- 5) It maintains a good reputation worth of goods, article. WTO entry is inated2 shares (A Shares); the and has conducted business suc- China became the therefore multifac- underwriting and brokering of cessfully in the international mar- region’s second eted and compre- foreign currency denominated ketplace. largest export destination and hensive as China’s economy shares,3 government bonds, and In addition, the minimum re- accounted for 9.6 percent of the matures and internationalizes by corporate bonds; and engaging quired registered capital6 for a value of Los Angeles’s total over- engaging the world as both a in other business activities as SCFC is RMB 500 million (about seas sales.1 recipient and contributor of cap- approved by the CSRC. FMCFCs $60 million). Pursuant to its new WTO ital and technology. This rise of may only manage and operate Pursuant to the Fund Manage- commitments, China has opened China as a global participant in securities investment funds and ment Company Regulations, for- up the key sectors of financial the world economy, with capital promote and establish such eign investors of FMCFCs must

12 LOS ANGELES LAWYER / NOVEMBER 2003 be legally recognized financial institutions7 in of liability for the investors. As would be first effort to recognize logistics as an inde- their home country and have incurred no expected, investors enjoy limited liability for pendent industry open to foreign investment. major securities or judicial penalties for the a corporate fund’s debts, with the amount Prior to the start of the pilot project, logistics past three years. Like the foreign investors of limited to each investor’s capital contribu- were regulated by a kaleidoscope of sepa- SCFCs, the home country of the foreign tion. Investors in a nonlegal-person fund, how- rate rules that regulated each link of the sup- investor(s) of a FMCFC must sign a cooper- ever, are jointly liable for its debts. The ply chain, such as ground and railway freight ation memorandum with China. The mini- investors may, however, agree that the transportation and import/export cargo mum required registered capital for a FMCFC “required investors”12 of a nonlegal-person agents. is, however, a more modest RMB 10 million fund assume joint liability, while the liability (approximately $1.2 million).8 of the remaining investors is limited to their The Corporate Finance Revolution Chinese authorities hope that the com- respective contributions. China is not only introducing new regu- petition provided by foreign participation in Under the VC Regulations, the following lations directed at particularly favored invest- the financial services market will raise the requirements must also be met in order to ments but also adopting international tools to standards of its own financial services establish a VC Fund: permit foreign investors to use mergers and providers. In addition, participation in the 1) There must be between 2 and 50 investors acquisitions and capital markets to enter and Chinese market by experienced global and at least 1 required investor. develop businesses in China. This is a break- investment managers should bring much 2) The minimum required registered capital through. For decades China primarily needed expertise, skills, and technology into is $5 million for a corporate fund and $10 mil- attracted foreign investment by relying on the country. Generally, these regulations are lion for a nonlegal-person fund, and each policies that encouraged foreign direct invest- aimed at developing China’s financial sector investor must contribute at least $1 million ment—for example, overseas money invested and bringing China into the mainstream inter- (except for required investors).13 directly to establish foreign investment enter- national financial market. 3) It must have a clear form of organization. prises (FIEs),17 usually as new or substan- While these regulations represent sub- 4) It must have a clear and lawful investment tially upgraded businesses. Today, however, stantial reform, the door to the Chinese finan- plan. China recognizes that the growth of the cial market is not yet completely open to for- 5) It must have at least three professionals Chinese economy is a dynamic process that eigners, as burdensome restrictions on the who are experienced in venture investment should be supported by international corpo- amount of permitted foreign capital still unless it has authorized a venture investment rate financial practices as well. The Chinese remain in force. SCFCs can only be created management company to manage its busi- government has promulgated a series of new through joint venture arrangements with a ness operations. regulations permitting foreign firms to merge Chinese partner, and, even then, foreigners 6) It must meet all other legal requirements with and acquire Chinese enterprises, which may only own an interest of up to 33 percent and administrative regulations. should help China, especially its large state- of the company’s shares. Similar foreign cap- California investors can also benefit from owned enterprises (SOEs), tap international ital restrictions apply to FMCFCs, with foreign reforms designed to assist China with its capital. shareholding also limited to 33 percent logistical problems in the flow and storage of Until recently, foreign investors interested (although, under the Fund Management goods, services, and related information. Poor in developing or expanding their Chinese Company Regulations, the FMCFC limit can infrastructure and insufficient freight opera- businesses through mergers and acquisitions be increased to 49 percent by December tions are still barriers restraining foreign had no legal way to do so because there was 2004).9 Despite these hurdles, Credit investors from efficiently reaching Chinese no comprehensive legislation guiding these Lyonnais and Xiangcai Securities have consumers. In response, the Chinese gov- activities. On March 7, 2003, however, the received approval from the CSRC to set up the ernment launched a pilot project14 in June Chinese government issued the Interim Provi- first SCFC in China. The CSRC has also 2002 permitting foreign investment in inter- sions on Mergers and Acquisitions of Domestic approved a few FMCFCs, including ones national and third-party logistic enterprises15 Enterprises by Foreign Investors,18 which established by Guotai Junan Allianz Fund in China’s seven major cities and provinces: became effective on April 12, 2003.The Management, Invesco Great Wall Fund Shanghai, Beijing, Tianjin, Chongqing, interim provisions apply to mergers and acqui- Management, and Fortune SGAM Fund Jiangsu Province, Zhejiang Province and sitions by foreign investors of 1) the assets of Management. Guangdong Province. The foreign-invested Chinese domestic companies, including FIEs, California businesses who are interested logistics enterprises (JV logistics enterprises) and 2) the equity interests of non-FIE Chinese in investing venture capital in China will also should provide a one-stop supply chain of domestic companies. Foreign investors may benefit from the reforms. On January 30, services combining transporting, storing, thus establish FIEs and then purchase and 2003, China passed the Regulations on the loading/unloading, processing, packaging, operate the assets of Chinese companies Administration of Foreign Invested Venture distributing, importing, and exporting of through their FIEs, or purchase assets of Capital Enterprises (henceforth, VC materials. JV logistic enterprises must have Chinese companies and use these assets to Regulations),10 replacing a 2001 interim rule. at least $5 million as registered capital, and set up FIEs. Foreign investors may also pur- Pursuant to the VC Regulations, a foreign foreign shareholding is limited to 50 per- chase existing equity interests or subscribe invested venture capital investment enter- cent.16 In addition, the Chinese or foreign for increased capital of Chinese companies, prise (VC Fund) may invest in unlisted high- investor with the largest shareholding in a JV resulting in these companies becoming FIEs. tech oriented Chinese enterprises and provide logistics enterprise must also have logistics Acquisitions of existing FIEs are primarily advisory and management services to effect experience and be in good standing. subject to another regulation, the Several capital appreciation. It is still too early to know when (or even Provisions on Changes in Equity Interests of A VC Fund may assume a corporate struc- if) the Chinese government will expand this Investors in FIEs.19 Merger between, and divi- ture or what the VC Regulations call a nonle- pilot logistics project nationwide into the sion of, existing FIEs continue to be gov- gal-person structure.11 The primary differ- inland provinces and cities. The pilot project erned by the Provisions on Merger and Divi- ence between the two structures is the degree is significant, however, because it is China’s sion of FIEs.20

14 LOS ANGELES LAWYER / NOVEMBER 2003 Given all these changes affecting the entry served for Chinese investors since its incep- about two-thirds of the Chinese A Share mar- of potentially powerful foreign investors into tion in the early 1990s. On November 5, 2002, ket’s $500 billion capitalization. These unlisted the Chinese market, the Chinese govern- however, the CSRC and the People’s Bank of shares are not freely tradable on the Chinese ment has expressed concern that its newly China jointly published the Interim Measures stock markets and can be transferred only by (or, perhaps better: nearly) free market may for Administration of Domestic Securities private agreement. paradoxically result in monopolistic behavior. Investment by Qualified Foreign Institutional However, investors who want to acquire The interim provisions expressly state that Investors (henceforth, QFII Measures). To unlisted shares face a maze of restrictions. For mergers or acquisitions by foreign investors implement the QFII Measures, the State Ad- example, the unlisted shares must be paid for must not cause excessive concentration, elim- ministration of Foreign Exchange, the Shang- in cash, and full payment must be made inate or restrict competition, disrupt the social hai Securities Exchange, and the Shenzhen before the transferred shares can be legally and economic order, or damage the interests Securities Exchange issued several sets of registered in the name of the foreign investor. of society or the public. detailed rules. Effective December 1, 2002, Foreign investors are also subject to a mini- Although the interim provisions establish the QFII Measures, together with the detailed mum 12-month mandatory lock-up period no limit on the number of Chinese companies rules, officially allowed foreign investors into before they may sell their acquired shares. that may be merged or acquired by foreign China’s A Share markets under the new QFII Moreover, there is no FIE beneficial tax investors, a foreign investor must seek regime. treatment even if the foreign shareholder’s approval from the Ministry of Cooperation Unfortunately, only qualified foreign fund holding exceeds 25 percent in a target com- (MOC) and the State Administration of management firms, insurance companies, pany. Industry and Commerce (SAIC) if a merger securities firms, commercial banks, and other In the Tentative Provisions on the Use of or acquisition includes any of the following large asset management firms as approved by Foreign Investment to Restructure SOEs,22 the characteristics: the Chinese government may enter into the government gave the green light to foreign 1) A party to the merger or acquisition has A Share market. For example, a QFII must investors to restructure unlisted SOEs (pro- operational revenues of more than RMB 1.5 have managed no less than $10 billion in the vided they are not financial enterprises, which billion in the Chinese market during that most recent fiscal year. Firms that have are still off-limits to foreign investment). The year. already won QFII approval include UBS War- restructuring of an unlisted SOE can be 2) The number of Chinese enterprises that are burg Ltd., Nomura Securities, Morgan Stan- effected through the purchase by foreign merged or acquired in the related industry ley, and Citigroup Inc. investors of the interest held by its share- within one year is greater than 10. Another limitation is that a QFII must des- holder(s), an increase in the registered cap- 3) The market share in China of a party to the ignate, at the time of its application for a QFII ital to be subscribed to by foreign investors, targeted merger or acquisition has reached 20 license, a commercial bank within China as a or the transfer of the unlisted SOE’s domes- percent. custodian of its securities transaction activi- tic creditors’ rights to foreign investors.23 A 4) The market share in China of a party to the ties. Chinese banks, branches of foreign sale of all or the main portion of the target merger or acquisition will reach 25 percent as banks (but only one branch per foreign bank), company’s assets to a foreign investor to a result of the transaction. and head offices of wholly foreign-owned establish an FIE is also governed by these Even if a merger or acquisition does not banks and joint venture banks within China new tentative provisions.24 They also establish include any of these triggers, the MOC and may, upon approval, provide these custodial a multilevel government approval system to the SAIC may still require the relevant foreign services. oversee the privatization of state assets. investor to report the transaction if the anti- Still more reforms seem aimed at whetting monopoly principles might be violated. the appetites of investors. The goal of Chinese The New Industrial Landscape The interim provisions additionally require authorities seems not just to selectively pro- While all of these reforms are welcome, that a party to an overseas merger or acqui- vide investors with new tools but to unlock the China today still operates as a socialist state, sition submit its transaction plan to the MOC entire hardware store. For example, one of the and the authorities continue to conduct social and the SAIC for approval prior to publicly most exiting reforms opens ownership of and economic risk assessments in the use of announcing the transaction or concurrently state-owned assets or SOEs to foreigners. foreign capital and retain the final word in with the submission of its plan to the com- China is now encouraging SOEs to restruc- approving all deals. In addition, notwith- petent authority in the country where the ture according to international standards in standing the opportunities provided by the transaction will take place if the transaction order to become competitive and maintain new rules, acquisitions in China still need to includes any of the above characteristics market position. In addition, a new central comply with the Guidance of Foreign Invest- (except for the second condition), or if a party government department called the State Asset ment Orientation25 and Industrial Catalogue for to the transaction owns assets inside China Management Commission has been estab- the Guidance of Foreign Investment26— greater than RMB 3 billion, or a party to the lished to act as the government representa- together known as China’s Guidance Policy. transaction directly or indirectly owns equity tive and regulator in charge of state assets. The policy divides foreign-invested projects interests in more than 15 FIEs in the same Late last year, the Notice Regarding the into four categories: encouraged, permitted, Chinese industry involved in the transaction. Transfer of State-Owned Shares and Legal restricted, and prohibited. The categoriza- The antimonopoly review process set by the Person Shares of Listed Companies to Foreign tion of a specific project indicates whether for- interim provisions is certainly quite broad Parties21 lifted a ban on foreign acquisition of eign investment is permitted, what level of and burdensome on foreign investors con- state-owned equity interests. The aim is to government approval is required, and templating mergers and acquisitions in China. attract overseas capital to restructure ailing whether majority foreign shareholding is Another investment option recently made SOEs. State-owned shares (unlisted shares allowed. available to qualified foreign investors is the owned by government bodies or SOEs) and The lay of the land, though, is changing— opportunity to purchase domestically listed A legal-person shares (unlisted shares owned by and fast. Although commentators on China Shares of PRC companies on the open mar- corporate entities)—which collectively are have primarily focused on how China’s WTO ket. China’s A Share market had been re- referred to as unlisted shares—make up entry and reforms encourage the interna-

LOS ANGELES LAWYER / NOVEMBER 2003 15 tional economy to move into China, the recent reforms also provide a two-way street along Anita Rae Shapiro which Chinese industry is encouraged to SUPERIOR COURT COMMISSIONER, RET. expand overseas and enter competitive world markets as well. PRIVATE DISPUTE RESOLUTION For example, Haier, China’s largest elec- PROBATE, CIVIL, FAMILY LAW tronic appliance manufacturer, is now targeting the U.S. market. As the world’s second PROBATE EXPERT WITNESS largest refrigerator maker, after Whirlpool, TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 Haier became the first Chinese company to E-MAIL: [email protected] open a major manufacturing facility in the http://adr-shapiro.com United States when it opened a $30 million South Carolina plant in 2000 to make compact FEES: $300/hr refrigerators. They are sold through Wal- Mart, Home Depot, and other retailers, and they quickly captured more than 50 percent Quo Jure Corporation 1-888-MEMO-911 of this U.S. niche market. Similarly, Legend www.quojure.com Computer, a leading Chinese PC maker, has LAWYERS’ WRITING & RESEARCH [email protected] announced plans to enter the North American market in competition with Dell, HP, IBM, When you can’t do it yourself, but you still need a brief or and others. It has even changed its logo and memo done—and done well, by experienced attorneys who its English brand name (from Legend to are skilled writers—turn to Quo Jure Corporation. Lenovo) to enhance its global image. Legend, of course, faces the challenges of increasing Quo Jure provides premium legal writing and research services brand-name recognition and containing pro- to practicing attorneys. Our work has contributed to million- duction costs, but it is convinced it can learn dollar settlements and judgments. Oppositions to motions for from other Asian pioneers that failed to make summary judgment are our specialty. Call for a free analysis a dent in the American PC market. and estimate. The Winning EdgeTM With the increased sophistication, matu- ration, and ability of Chinese businesses, it is only natural to expect that they will diversify and expand abroad into other promising markets. Such moves highlight the fact that China IF YOUR CLIENT IS GOING TO SELL is transforming itself from a one-dimensional giant that simply soaks up in-bound foreign REAL ESTATE OR OTHER investment like a sponge into a complex market economy that is a rising force in global APPRECIATED PROPERTY investment. According to MOC statistics, by and wants to bypass the Capital Gains Tax . . . the end of 2002, the Chinese government had approved the investment by 6,960 domes- consider the benefits of a planned gift tic companies of $9.34 billion overseas during through THE SALVATION ARMY. the past two decades. China Netcom’s acquisition of Asia Global • Reduce or eliminate Crossing Ltd. is a particularly illustrative Capital Gains Tax example of the new Chinese investment pro- • Save on Income Tax file. Last November, China Netcom decided to invest approximately $80 million to acquire • Save on Estate Tax Asia Global Crossing’s assets, including net- • Increase Cash Flow works connecting 200 cities in 16 countries • Support vital programs and and regions. This was the first cross-border services in your community acquisition of a global telecom business by a Chinese company, and it is an important The Salvation Army’s planned giving program offers a full range of gift options. demonstration of China’s desire to partici- Executed with your professional assistance, your charity-minded client will benefit pate in global business. and the gift yields resources to the community that make it a better place in which Nevertheless, China is still in the very to live. Typically, at least 83 cents of every dollar goes directly to meeting early stages of the reforms designed to inte- human needs without discrimination. grate it into the world economy, and there are myriad legal and administrative hurdles that For more information, contact the Planned Giving Specialist at restrain Chinese capital from flowing over- The Salvation Army Southern California Division Headquarters, seas. Proposed outbound investments by 900 W. James M. Wood Blvd., Los Angeles, CA 90015-1356. Call 213-553-3269 • Fax 213-627-1440 Chinese companies are still subject to approvals from a number of government E-mail [email protected] departments in matters relating to foreign

16 LOS ANGELES LAWYER / NOVEMBER 2003 currency and project control. For example, in Asset Protection Planning Now general, only companies that have foreign currency income may apply to the authorities Can Insulate Your Clients’ Assets for a foreign currency quota to invest overseas. Nor may a Chinese company’s total From Future Judgments investment in overseas projects exceed 1 percent of the company’s average foreign currency income in the previous three years. If Yes, it’s true. By properly restructuring your clients’ estate plan, their assets and the a company has no foreign currency income assets they leave to their family will be protected from judgment creditors. Here are or its overseas investment exceeds the per- some of the situations in which our plan can help protect your clients' assets: mitted amount, it may only, subject to ■ Judgments exceeding policy limits or exclusions from approval, invest in certain industries and des- policy coverage. tination countries that are encouraged by the ■ Judgments not covered by insurance. Chinese government. ■ Children suing each other over your client's estate. All these rules are outmoded and fast ■ A current spouse and children from a prior marriage becoming an anachronism as China interna- suing each other over your client's estate. tionalizes. It is also well known that these ■ A child’s inheritance or the income from that rules are often ignored, and the Chinese inheritance being awarded to the child’s former spouse. authorities have little control once capital flows outside the country. Recognizing this, the Chinese government has proposed a pilot STEVENSTEVEN L.L. GLEITMAN,GLEITMAN, E ESQ.SQ. plan to streamline approval procedures for 310-553-5080 27 Chinese companies’ overseas investment. Biography available at lawyers.com or by request. The details of the plan are still evolving, but China is sending strong signals that it is ready Mr. Gleitman has practiced sophisticated estate planning for 24 years, specializing for more than 12 to tackle one of the last hallmarks of the state- years in offshore asset protection planning. He has had and continues to receive many referrals from planned economy—rigid currency controls— major law firms and the Big Four. He has submitted 36 estate planning issues to the IRS for private let- and allow the Chinese economy to grow by ter ruling requests; the IRS has granted him favorable rulings on all 36 requests. Twenty-three of those market forces. rulings were on sophisticated asset protection planning strategies. Many of the changes in China mandated by the WTO accession agreement are phased in over a period of up to five years. Others, such as the internationalization of China by Chinese firms expanding abroad, will take a long time to be fully implemented. The tran- John Gardner Hayes, Esq. sitional period will be confusing and complicated, as many of the promised reforms have yet to be implemented or carried out. However, all indications are that many of the changes in China, while slow to manifest themselves, are irreversible and sustainable. Mediation From manufacturer for the world to global economic powerhouse, the transformation and of the Chinese economy in such key sectors as financial services, logistics, and venture Arbitration capital investments, together with the new tools now available to participate in China’s corporate financial revolution, may look to Experienced in: some like various dishes out of a recipe book. If so, bon appétit! ■ ■ Personal Injury ■ Construction 1 See Economic Information & Trade Research Department, International Trade Trends & Impacts: ■ Employment Disputes The Los Angeles Region 2002 Results and 2003 Outlook, available at http://laedc.info/pdf/Trade-2003.pdf. ■ Malpractice 2 RMB is the abbreviation for the Chinese unit of currency, the renminbi. 3 The foreign denominated shares refer to both domestic foreign currency shares (B Share) and shares listed overseas. 4 State Council Securities Commission, Tentative TEL (310) 478-4711 FAX (310) 575-4171 Measures for the Management of Securities Investment Funds (Nov. 14, 1997). 5 China has entered into securities supervision coop- 11400 OLYMPIC BLVD., SUITE 600, LOS ANGELES CA 90064 eration agreements with various countries and regions,

LOS ANGELES LAWYER / NOVEMBER 2003 17 including Australia, France, Hong Kong, Italy, Japan, civil rights and assumes civil obligations. A nonlegal- Chinese-foreign equity joint ventures, Chinese-foreign Malaysia, the United Kingdom, and the United States. person business entity usually refers to a partnership. cooperative joint ventures, and wholly foreign-owned 6 The registered capital of a company is the total amount Since limited partnerships are not permitted under enterprises. of capital contributed by all its shareholders and reg- existing laws but the VC Regulations allow investors of 18 MOFTEC, SAT, SAIC, & SAFE, Interim Provisions on istered with the company registration authority. Stand- a nonlegal-person fund to assume limited liability, it is Mergers and Acquisitions of Domestic Enterprises by ing Committee of the National People’s Congress, PRC presently unclear whether a nonlegal-person fund Foreign Investors (Mar. 7, 2003). Company Law (Dec. 29, 1993) (amended Dec. 25, 1999). would be a partnership or a new type of business entity 19 MOFTEC & SAIC, Several Provisions on Changes in 7 The term “financial institutions” is not defined under under current law. Equity Interests of Investors in FIEs (May 28, 1997). the Fund Management Company Regulations. Pursuant 12 A VC Fund must have at least one required investor. 20 MOFTEC & SAIC, Provisions on Merger and Division to the Administrative Measures for Representative Offices For a foreign investor to qualify as a required investor, of FIEs, (Sept. 23, 1999) (amended Nov. 22, 2001). in China of Foreign-Funded Financial Institutions (issued it must itself and/or through its affiliates have managed 21 CSRC, Ministry of Finance, & State Economic and by the People’s Bank of China, June 13, 2002), however, assets of at least $100 million in the three years prior Trade Commission, Notice Regarding the Transfer of “financial institutions” may include banks, finance com- to applying for formation of a VC Fund, a minimum of State-Owned Shares and Legal Person Shares of Listed panies, currency brokerage companies, and credit card $50 million of which has been invested in portfolio Companies to Foreign Parties (Nov. 1, 2002). The State companies. Subject to further interpretation by the enterprises. In addition, in a corporate fund, required Economic and Trade Commission is now part of the CSRC, these four kinds of firms and companies would investors are required to subscribe to at least 30% of the MOC. most likely be deemed as the primary types of “finan- total registered capital, while in a nonlegal-person fund 22 SETC, MOF, SAIC, & SAFE, Tentative Provisions cial institutions” under the Fund Management Company required investors are only required to subscribe to at on the Use of Foreign Investment to Restructure SOEs Regulations. least 1% of the total registered capital. (effective Jan. 1, 2003). 8 State Council Securities Commission, Tentative 13 See supra note 12. 23 Purchase of the equity interests or assets of SOEs by Measures for the Management of Securities Investment 14 MOFTEC, Notice Regarding Launching Pilot Project foreign investors is also governed by the Interim Funds (Nov. 14, 1997). for Foreign Invested Logistics Enterprises (June 20, 2002). Provisions on Mergers and Acquisitions of Domestic 9 The Chinese government, however, made no com- In China, a pilot project may be adopted to explore Enterprises by Foreign Investors. In the event of any mitment to increase the permitted level of foreign opportunities and gain practical experience in new sec- conflict between the SOE Provisions and the interim pro- shareholding in SCFCs in either its WTO accord or the tors or industries. A pilot project may last years until the visions, the SOE Provisions should prevail. Securities Company Regulations. government concludes that it either has a need and suf- 24 See supra note 23. 10 Ministry of Foreign Trade and Economic Cooperation ficient experience to implement a project nationwide or 25 State Council, Guidance of Foreign Investment (MOFTEC), Ministry of Science and Technology, the that the project should be revoked. Orientation (Feb. 11, 2002). State Administration of Industry and Commerce (SAIC), 15 International logistics services refer to the 26 State Development and Planning Commission, SETC, State Administration of Taxation (SAT), & State import/export business, while third-party logistics ser- & MOFTEC, Industrial Catalogue for the Guidance of Administration of Foreign Exchange (SAFE), vices include ground transportation of goods, domes- Foreign Investment (Mar. 11, 2002) (effective Apr. 1, Regulations on the Administration of Foreign Invested tic cargo agencies, and management of logistics through 2002). The State Development and Planning Commis- Venture Capital Enterprises (effective Mar. 1, 2003). computer networks. sion is now known as the State Development and Re- The MOFTEC is now known as the Ministry of 16 In its WTO accord, the Chinese government did not form Commission. Cooperation (MOC). commit to an increase in this percentage. 27 Pilot Plan Ready for Take-off, Streamlined Approval 11 Under Chinese law, a legal person is an organization 17 Foreign investment enterprises are enterprises with Procedure to Stimulate Overseas Investment, CHINA that possesses legal capacity and independently enjoys foreign capital. They primarily assume the form of DAILY, Apr. 19, 2003, at 8.

18 LOS ANGELES LAWYER / NOVEMBER 2003 practice tips

By Johanna R. Shargel

Searches in Public Schools Create Many Fourth Amendment Tests

The line between tation of privacy than members of ysis drug testing of student ath- effects of drugs, because in the the population generally,”2 courts letes, emphasizing that athletes field of competitive sports “the legal and illegal have yet to define the parame- have an even lower expectation of risk of immediate physical harm ters of students’ Fourth Amend- privacy than other students. The to the drug user or those with searches for guns ment rights in a clear, consistent Court reasoned that “school whom he is playing his sport is manner. As a result, attorneys, sports are not for the bashful,” particularly high.”7 In fact, the and drugs is not school districts, teachers, par- and that “there is an element of Vernonia school district had an ents, and students alike have communal undress inherent in even more pressing concern in always clear been left puzzling over the con- athletic participation.”5 The Court light of evidence that student ath- stitutional propriety of random also maintained that athletes, “by letes were the “leaders” of a grow- drug tests and weapons searches choosing to go out for the team,” ing drug culture within Vernonia n public schools across the in public schools. Nevertheless, “voluntarily subject themselves schools.8 country, students are subject due to the persistent threat to to a degree of regulation even Missing from the Vernonia Ito inspection. Thirty years student health and safety, it is higher than that imposed on stu- decision, however, is any serious ago, they were checked for head essential that all parties to the dents generally.”6 As for the level discussion of the invasiveness of lice and dirt under their finger- debate familiarize themselves of governmental concern, the urinalysis testing. The urinalysis nails; now students are being with the nebulous and ever-shift- Supreme Court found that policy in question required that screened for knives, guns, and ing rules governing student schools have a significant interest “male students produce samples drugs. In school districts in searches. in protecting athletes from the ill at a urinal along a wall” while California, for example, school officials bearing metal detector Random Drug Tests wands enter randomly selected Until 1995, school officials classrooms daily to search stu- needed reasonable suspicion of dents and their belongings for wrongdoing to search a particu- weapons—a practice that the lar student for weapons or drugs.3 American Civil Liberties Union But in Vernonia School District has claimed violates the consti- 47J v. Acton, the U.S. Supreme tutional rights of students to pri- Court opened the door to drug vacy.1 California school districts, testing without suspicion in pub- however, are not the only ones to lic schools when it approved an have faced a constitutional chal- Oregon school district’s decision lenge to their cam- to impose a ran- pus security mea- Johanna R. Shargel is dom urinalysis re- sures. Concerned an associate at quirement on all students from the Strumwasser & student athletes. city of New York to Woocher LLP and The Court deter- Tecumseh, Okla- specializes in mined that admin- homa, have ques- education law and istrative searches tioned the legality public interest can be conducted of random searches litigation. without individu- (from dog-sniffs to alized suspicion in urinalysis) that are cases in which the proliferating in response to the search involves a minimal degree continued presence of violence of intrusion on students’ privacy and drugs on public school cam- expectations while advancing an puses. important, immediate govern- While it is well established mental interest.4 Applying that that “students within the school constitutional balance, the

RICHARD EWING environment have a lesser expec- Vernonia Court approved urinal-

LOS ANGELES LAWYER / NOVEMBER 2003 19 being “observed from behind.”9 Female ath- Writing for the majority, Justice Clarence they undoubtedly will have difficulty explain- letes were told to produce samples in an Thomas concluded that students participating ing why the intrusion on students’ privacy enclosed stall, with a female monitor standing in extracurricular activities, like student ath- interests is truly “negligible,” and why drug outside listening “for sounds of tampering.”10 letes, “have a limited expectation of privacy,” testing is truly the province of our public Also, students were asked to identify any pre- since they “voluntarily subject themselves to schools. scription medications they were taking in many of the same intrusions on their pri- order to avoid sanctions for a falsely positive vacy.”17 Random Weapons Searches test.11 Although common sense instructs that Although Earls was ostensibly based on Although random weapons search poli- requiring adolescents to urinate in the pres- the earlier Vernonia opinion, several key dis- cies are nearly as prevalent as random uri- ence of school officials and disclose pre- tinctions make the Supreme Court’s decision nalysis tests in public schools,25 federal courts scription drug use is invasive, the Court to allow testing of all extracurricular partici- have yet to weigh in on their constitutionality. brushed aside students’ privacy concerns as pants even less tenable. For example, while To date, courts in only five states—California, “negligible.”12 It was an about-face for a Court the Court in Vernonia relied on the fact that Illinois, New York, Pennsylvania, and that previously had recognized that urinaly- team sports “are not for the bashful,” it is Florida—have addressed the Fourth sis intrudes upon “an excretory function tra- certainly the case that the choir and national Amendment implications of random weapons ditionally shielded by great privacy.”13 honor society, which do not require public searches. These courts have unanimously Another glaring omission in the Vernonia undressing or communal showers, are open approved their use in public schools.26 The decision is any consideration of whether to the bashful.18 And, unlike in Vernonia, there uniformity of judicial decisions on the issue schools should be conducting drug tests in was no evidence before the Earls Court that makes sense, since random metal detector the first place. While the decision cites the extracurricular activities expose students to searches are in several respects less consti- legitimate interests of schools in “[d]eter- the same “substantial physical risks” as com- tutionally objectionable than random urinal- ring drug use by our Nation’s schoolchild- petitive sports, or that Tecumseh, Oklahoma, ysis tests. First, a metal detector search is ren,”14 the administered tests were designed students engaged in extracurricular activi- plainly less invasive than urinalysis: Although to uncover drug use that occurred off-cam- ties were “leaders” of a drug culture. students are often asked to empty their pock- pus, during non-school hours, as well as dur- Ultimately, while the Vernonia Court could ets before being scanned, a metal detector ing school time. identify concrete bases for its decision to sin- search does not involve any form of undress For example, a student could smoke mar- gle out student athletes for random urinaly- or even direct contact with a student’s body ijuana weeks before the start of school and sis, there was little justification for including or bodily fluids.27 Moreover, unlike drug test- test positive for drugs on the first day of all extracurricular participants within the cat- ing, which often necessitates disclosure of class.15 The Vernonia Court failed to delve egory of students tested. students’ prescription drug use, random into the larger question of whether a student Furthermore, as many courts have rec- weapons searches do not involve any com- who used drugs on a weekend—without it ognized, the Supreme Court’s decision to parable collateral privacy intrusions. affecting his or her performance in school or approve drug testing of all extracurricular Second, the interest of school districts in on the playing field—should be penalized by participants could have troubling conse- preventing the use of illegal drugs arguably school officials, or whether parents are the quences. As one federal court observed: “If pales in comparison to their interest in deter- more appropriate monitors of that child’s con- a student wishes to continue drug use, he ring and detecting guns and knives on cam- duct when not on campus. Moreover, Ver- merely has to forego extra-curricular activi- pus, particularly in the wake of tragedies like nonia never addresses the issue of whether ties.”19 Earls, then, might unintendedly give Columbine and Jonesboro.28 Although both urinalysis testing is really necessary for students an incentive to avoid extracurricular drugs and weapons pose health and safety school officials to detect students who are activities altogether—a result that would have concerns to public school students, a con- under the influence of drugs during school a significant impact on their education. The cealed firearm presents a substantially greater hours. Should not conscientious teachers and California Supreme Court, after all, has char- risk of irreversible harm. Also, whereas the administrators be able to spot, without the acterized extracurricular activities as an “inte- propriety of screening students for off-campus benefit of a urine sample, a student who is on gral component of public education.”20 What drug use is questionable, schools clearly have drugs? Ultimately, the Vernonia decision is more, there are studies indicating that “stu- a need and a duty to ensure that students on leaves many critical issues regarding the inva- dents who participate in extracurricular activ- school grounds are not in possession of guns siveness and propriety of random urinalysis ities are significantly less likely to develop or knives. In fact, that obligation is written into unexplored. substance abuse problems than are their less- the California Constitution, which specifically Despite its gaping holes, once Vernonia involved peers.”21 guarantees students and staff “the inalien- had sanctioned suspicionless testing in pub- Likely recognizing the problems inher- able right to attend campuses which are safe, lic schools, districts across the nation devel- ent in a drug policy pertaining only to stu- secure and peaceful.”29 oped policies requiring drug tests not only for dents engaged in extracurricular activities, the What, then, accounts for the fact that ran- student athletes but for all students who drive Earls Court signaled that limiting random dom weapons searches have encountered to school, all students suspended for mis- testing to extracurricular participants “was not considerable resistance from teachers, par- conduct, and all students participating in any essential to [its] decision.”22 The Court ents, students, and civil liberties groups? For sort of extracurricular activity.16 Just last year, observed that “the safety interest furthered one, the entire student body is subject to a the Supreme Court, in Board of Education of by drug testing is undoubtedly substantial school’s random weapons search policy, Independent School District No. 92 v. Earls, for all children.”23 Although courts have yet whereas urinalysis has only been sanctioned rejected a challenge brought by student mem- to uphold a random drug testing policy applic- with respect to specific categories of students bers of the marching band, choir, national able to the entire student population,24 Earls who voluntarily engage in certain activities. honor society, and academic team against certainly planted the necessary seed. When Accordingly, while students can avoid uri- their school’s policy of testing all students and if the courts do throw the doors open to nalysis by eschewing extracurricular activi- engaged in extracurricular activities for drugs. urinalysis testing of all public school students, ties, truancy is the only way of avoiding metal

20 LOS ANGELES LAWYER / NOVEMBER 2003 detectors in a school system that mandates individualized suspicion might open the door random weapons searches.30 to racial profiling by school officials. Ironically, COMPUTER FORENSICS Despite the fact that a random search pro- then, despite the criticism leveled against Certified Data Discovery gram leaves no room for conscientious objec- random searches, one of the main advan- tion, many school districts have determined tages of suspicionless testing is the preser- ¥ Hidden/deleted file recovery that metal detectors are a necessary means vation of student civil rights. ¥ Docs, Graphics, E-mail of detecting and deterring weapons on their Another central criticism of random ¥ Internet use & Date Codes campuses. In approving a Chicago-based weapons searches is that they disrupt the ¥ Expert Witness Testimony school district’s policy of scanning students educational experience. Opponents of ran- ¥ Litigation Support for weapons as they enter the school building, dom metal detector tests claim that this prob- ¥ Full Forensic Computer Lab one Illinois appellate court observed: lem is particularly pronounced when searches We long for the time when children are conducted during class time, rather than did not have to pass through metal as students enter school in the morning. The 909-780-7892 detectors on their way to class, when case law, however, provides no basis for the DATACHASERSINC.COM hall monitors were other children, not theory that the timing and location of a school armed guards, when students dressed search are issues of constitutional dimen- for school without worrying about sion. Ultimately, school officials must have gang colors. Those were the days some degree of flexibility in fashioning a Brockton D. Hill, J.D., M.F.T. when sharp words, crumpled balls of safety policy suitable to a particular school set- paper and, at worst, the bully’s fists ting.35 Magnometers stationed at the front Jungian were weapons of choice.31 gate may cause less disruption to students’ Psychotherapy Although opponents of random weapons classroom learning than searches conducted searches counter that suspicionless testing is during class time, but stationary metal detec- Divorce not sufficiently effective to justify the intrusion tors are simply not feasible, given the design Mediation on student civil rights, data from school dis- of many California high schools, which typi- tricts across the country establish that metal cally feature numerous gates and entrances.36 detectors are effective in detecting and deter- With the current budget crisis facing 818.726.1459 ring the use of illegal weapons on campus.32 California schools, magnometers (which cost Offices in And so while students might complain that at least 10 times more than portable metal West Los Angeles and Pasadena they are being treated like criminals locked detector wands) are likely to be prohibitively inside schoolhouse gates, the reality is that expensive, not to mention the hundreds of school districts confronting the substantial additional security hours a week necessary to risk of shootings and stabbings on campus operate stationary metal detectors.37 Because have little choice in the matter. all states and individual school districts have In fact, the only viable alternative to ran- their own unique geographical, demographic, dom weapons searches—suspicion-based and financial issues, courts cannot—and have searches—have been deemed by many courts not—dictated a singular method of searching to be unworkable in the public school set- students for weapons. ting. While teachers untrained in law enforcement may be capable of detecting signs of Reasonable Search Procedures drug abuse among students, it is unreason- As much as districts need the discretion able to expect them to recognize students to fashion weapons search policies suitable to who are concealing weapons. As the their schools, they also must take steps to California Court of Appeal maintained in minimize the intrusion on students’ privacy upholding a school district’s random weapons rights. The few state cases that have search policy: addressed the issue of random metal detec- Schools have no practical way to mon- tor tests offer the following guidelines for itor students as they dress and pre- creating a constitutionally sound policy: pare for school in the morning, and • School officials conducting searches hence no feasible way to learn that should follow a uniform procedure detailed in individual students have concealed a district policy or written guidelines. The guns or knives on their persons, save more discretion afforded local school staff for those students who brandish or in implementing a district’s search program, display the weapons. And, by the time the more likely that intrusions on students’ weapons are displayed, it may well be privacy interests will occur.38 too late to prevent their use.33 • Searches should be carried out uniformly Furthermore, under a “reasonable suspi- in schools across the district; searches should cion” regime, teachers might arbitrarily and not be conducted only in schools located in unjustifiably subject known troublemakers “dangerous” neighborhoods. If searches are to weapons searches. As the Earls Court rea- performed only in a district’s more disad- soned, “A program of individualized suspi- vantaged schools, students in those schools cion might unfairly target members of un- will likely feel they are being unfairly branded popular groups.”34 Even worse, requiring as criminals.

LOS ANGELES LAWYER / NOVEMBER 2003 21 • Random metal detector searches should Steven Richard Sauer, Esq. only be implemented in secondary schools Counselor at Law (i.e., middle and high schools), not elemen- tary schools, where there is less of a docu- Professional arbitrator and mediator since 1974. mented problem with weapons on campus.39 • Unless the entire student body is searched, schools conducting random weapons Settlement Impasse? searches should establish a method to ensure that students are truly randomly selected for Masterful guidance when the stakes are high. a search and are not arbitrarily or unfairly targeted.40 4929 Wilshire Boulevard, Suite 740 · Los Angeles, California 90010-3821 • Students should be notified in advance Telephone: (323) 933-6833 · Fax: (323) 933-3184 · E-mail: [email protected] that they may be subject to random metal detector searches at school by way of signs posted on campus or letters distributed to parents and students.41 • School officials carrying out a search during class time should make good faith efforts to minimize class disruption to the extent reasonably possible. For example, if only a portion of the students in a particular class are selected for a search, school officials should perform the search in a separate location so that instruction can continue while the search is being conducted. • In conducting random weapons searches, male school officials should search male students and female school officials should search female students.42 • Once students are randomly selected for a search, they should be given the opportunity to remove metal objects from their pock- ets and bags, so as to minimize the number of students who activate the metal detector and are consequently subject to a pat-down or manual bag search. • Unless the metal detector activates, school officials using a hand-held scanning device should avoid actually touching students’ bodies.43 Adherence to these criteria should insulate school districts’ weapons search policies from successful constitutional attack. While it is certainly a difficult balance to strike, districts can enforce safety policies that respect students’ legitimate privacy expectations while advancing their equally legitimate need to maintain an environment where learning can take place. ■

1 See Duke Helfand, Opposition Grows to Searches of Students, L.A. TIMES, June 19, 2001. 2 New Jersey v. T.L.O., 469 U.S. 325, 348 (1985) (Powell, J., concurring). In T.L.O., the Supreme Court held that on account of the “special needs” of the school environment, student searches do not require a showing of probable cause to pass constitutional muster. Rather, “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Id. at 341. 3 Id. at 340-42. 4 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658-64 (1995). 5 Id. at 657 (internal quotations and citations omitted). 6 Id. (internal quotations and citations omitted).

22 LOS ANGELES LAWYER / NOVEMBER 2003 7 Id. at 662. 8 Id. at 649. 9 Id. at 658. 10 Id. When tomorrow 11 Id. at 659. 12 Id. at 661. is not an option. 13 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 626 (1989). Rely on the same-day court filing specialists. 14 Vernonia, 515 U.S. at 660. 15 See, e.g., Oil, Chemical, and Atomic Workers Int’l Union v. Amoco Oil Co., 885 F. 2d 697, 705 (10th Cir. Fax & File is Now 1989) (citing testimony that “traces of marijuana can remain in a person’s system long after its use); People v. Carpenter, 228 Ill. App. 3d 899, 902 (1992) (citing testimony that “marijuana can stay in a person’s system for up to 30 days”). Call 1-415-491-0606 or visit www.onelegal.com 16 See, e.g., Joy v. Penn-Harris-Madison Sch. Corp., 212 F. 3d 1052 (7th Cir. 2000); Linke v. Northwestern Sch. Corp., 763 N.E. 2d 972 (Ind. 2002). 17 Board of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 831-32 (2002). 18 See Trinidad Sch. Dist. No. 1 v. Lopez, 963 P. 2d 1095, 1107 (Colo. 1998). 19 Brooks v. East Chambers Consol. Indep. Sch. Dist., 730 F. Supp. 759, 765 (S.D. Tex. 1989). 20 Hartzell v. Connell, 35 Cal. 3d 899, 909 (1984). 21 Earls, 536 U.S. at 853 (Ginsburg, J., dissenting) (citing N. ZILL, C. NORD, & L. LOOMIS: ADOLESCENT TIME USE, RISKY BEHAVIOR, AND OUTCOMES 52 (1995)) (Tenth graders “who reported spending no time in school- sponsored activities were…49% more likely to have used drugs” than those who spent 1-4 hours per week in such activities.). 22 Id. at 830, 830 n.3; see also id. at 837-38. 23 Id. at 836. 24 In fact, before Earls, one federal court struck down a drug testing policy applicable to the entire student body, concluding that the general student population “holds a higher expectation of privacy than student athletes.” Tannahil v. Lockney Indep. Sch. Dist., 133 F. OVER 25 YEARS OF SUCCESS Supp. 2d 919, 929 (N.D. Tex. 2001). 25 See, e.g., CALIFORNIA DEPARTMENT OF EDUCATION, We SAFE AND HEALTHY KIDS SURVEY, 2001-2002 ANNUAL REPORT (ﬁnding that random metal detector checks were conducted at 25% of the California public schools Understand surveyed, whereas student drug testing (of any type) was conducted at 32% of surveyed schools throughout the state). In Louisiana, state statutes speciﬁcally allow Bankruptcy random metal detector searches to be conducted “at any time, provided they are conducted without deliberate touching of the student.” L.S.A.-R.S. 17:416.2(B) (2002). Clients troubled by debts? 26 The Legal Side and See In re Latasha W., 60 Cal. App. 4th 1524 (1998) We are experts at: (holding that random metal detector searches of high The Human Side school students do not violate the Fourth Amendment); • Debt Restructuring Plans State v. J.A., 679 So. 2d 316 (Fla. 1996) (approving pol- • Chapters 7, 11, and 13 Relief icy of random, suspicionless searches of students in the • Conservative Asset Protection classroom); People v. Pruitt, 662 N.E. 2d 540 (Ill. Ct. App. 1996) (upholding Chicago high school’s periodic Refer your clients with use of a magnometer to scan students); In re F.B., 555 confidence: Pa. 661 (1999) (approving suspicionless metal detector • AV Rating scans and bag searches of high school students as they enter the front gate); People v. Dukes, 580 N.Y.S. • Free Consultations 2d 850 (1992) (sanctioning policy allowing school offi- • Reasonable Fees cials to search all students or a random sample of students entering the school with a hand-held scanning device). Professional, Compassionate Solutions 27 See F.B., 555 Pa. at 669-70. 28 See Latasha W., 60 Cal. App. 4th at 1527 (“The need Laurence D. Merritt of schools to keep weapons off campus is substantial. Attorney at Law Guns and knives pose a threat of death or serious injury to students and staff.”). Phone: 818.710.3823 • email: [email protected] 29 CAL. CONST. art. I, §28; see also Latasha W., 60 Cal. App. Internet: www.legalknight.com 4th at 1527. 30 Justice Stephen Breyer observed in his concurring opinion in Earls that by only testing extracurricular Formerly with Merritt & Hagen

LOS ANGELES LAWYER / NOVEMBER 2003 23 participants, the Tecumseh school district’s program “preserves an option for a conscientious objector. He COMPETENT REAL ESTATE BROKERAGE can refuse testing while paying a price (nonparticipa- tion) that is serious, but less severe than expulsion….” ■ Specializing in helping attorneys and their clients buy and sell Board of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 real estate in bankruptcy, probate, family, and real estate law U.S. 822, 841 (2002) (Breyer, J., concurring). 31 People v. Pruitt, 662 N.E. 2d 540, 546 (Ill. Ct. App. ■ Experienced negotiator with legal background 1996). ■ Licensed broker, California Department of Real Estate 32 See Robert S. Johnson, Metal Detector Searches: An Effective Means to Help Keep Weapons Out of Schools, ■ Call for LACBA member discount 29 J. LAW & EDUC. 197, 200 (Apr. 2000). 33 In re Latasha W., 60 Cal. App. 4th 1524, 1526 (1998). 34 Board of Educ. of Indep. Sch. Dist. No. 92 v. Earls, OFFICE: (818) 905-7111 EXT. 251 536 U.S. 822, 837 (2002); see also Vernonia Sch. Dist. 47J OFFICE: (310) 820-2229 TODD RUBINSTEIN, J.D., BROKER ASSOCIATE v. Acton, 515 U.S. 646, 663 (1995) (“Respondents’ pro- FACSIMILE: (818) 905-7299 EMAIL: [email protected] posal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students.”). 35 See New Jersey v. T.L.O., 469 U.S. 325, 339-40 (1985); In re William G., 40 Cal. 3d 550, 563 (1985). 36 See State v. J.A., 679 So. 2d 316, 320 (Fla. 1996) (explaining that in Dade County’s open-campus high schools, it would be difficult to make use of a stationary metal detector); see also In re F.B., 555 Pa. 661, 670 (1999) (noting that while the installation of walk-through metal detectors at points of entry would be a “less intrusive and more efficient means” of searching students, the use of hand-held metal detectors “will not be barred because less intrusive means exist than those actually utilized if the means, as employed, are not so expansive as to be disproportionate to the purpose of the search”). 37 See OFFICE OF JUSTICE PROGRAMS, NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE, Ch. 3: Metal Detection: Walk-Through Metal Detectors for Personnel: Hardware Costs and Manpower Costs, in THE APPROPRIATE AND EFFECTIVE USE OF SECURITY TECHNOLOGIES IN U.S. SCHOOLS: A GUIDE FOR SCHOOLS AND LAW ENFORCEMENT AGENCIES (Sept. 1999). 38 See In the Interest of S.S., 452 Pa. Super. 15, 21-22 (1996) (noting that the school district police “followed a uniform procedure when they searched each stu- MEDIATOR dent,” and that “[t]his uniformity served as a safeguard, assuring that a student’s expectation of privacy was not subjected to officials’ discretion”); cf. People v. Pruitt, 662 N.E. 2d 540, 547 (Ill. Ct. App. 1996) (“[W]e are troubled by the failure of the Chicago Board of Education to establish strict standards for the use of Wesley L. Davis metal detectors.…”). 39 See, e.g., J.A., 679 So. 2d at 318 (approving policy authorizing random searches of high school students). 40 See In re Latasha W., 60 Cal. App. 4th 1524, 1526 Construction (1998) (“The searches were to be made at random, and persons to be searched selected on neutral criteria.”); Construction Defect J.A., 679 So. 2d at 318 (noting that school officials roll Construction Defect dice to choose a sector of the school, and roll dice again to determine which classroom in the sector to search). Land Subsidence 41 See Latasha W., 60 Cal. App. 4th at 1526 (“Parents and students were given notice before institution of this prac- Surface Waters tice, and again at frequent intervals.”); In re F.B., 555 Pa. 661, 670-71 (1999) (holding that “[t]he fact that Real Estate notice is provided of the reason for the search policy and the manner of conducting the search provides an addi- Government Torts tional safeguard”); J.A., 679 So. 2d at 318 (“There are signs posted in the school informing students that Inverse Condemnation these random searches are conducted.”); but see In the Interest of S.S., 452 Pa. Super. 15, 22 (1996) (“Although it would be prudent to notify students and parents of the school’s search policy, it is not requisite TEL ■ FAX to a reasonable search.”). 949/598-9000 949/598-0604 42 See J.A., 679 So. 2d at 318. 43 15707 ROCKFIELD BOULEVARD, SUITE 205, IRVINE CA 92618 See People v. Dukes, 580 N.Y.S. 2d 850, 851 (1992) (scanning conducted “without actually touching the BIOGRAPHY AND FEE SCHEDULE UPON REQUEST body”); Latasha W., 60 Cal. App. 4th at 1526 (hand-held metal detector waved “next to the student’s person”).

24 LOS ANGELES LAWYER / NOVEMBER 2003 tax tips

By Terence S. Nunan and William R. Burford

Estate Planning to Reduce Capital Gains Taxes

Use of ”5 & 5” occupied a home as their primary The problem arises because these trusts. For purposes of residence for at least two of the married couples completing a income taxation, marital deduc- powers can preceding five years to exclude joint estate plan will often include tion and bypass trusts are gen- up to $250,000 in capital gain on provisions establishing a bypass erally taxpayers separate from preserve the the sale of the property, or up to (or credit shelter) trust and mar- the surviving spouse, even if he $500,000 for married taxpayers ital deduction trust upon the or she serves as trustee, and will generous benefits filing joint returns.3 death of the first spouse. Under not qualify for grantor trust treat- Section 121 may be particu- this common estate plan struc- ment under Section 678. To the of IRC Section 121 larly beneficial to California tax- ture, on the death of the first extent these trusts remain sepa- payers. If Section 121 applies, spouse, the surviving spouse’s rate nongrantor trusts for income gains realized on the sale of a pri- property may be allocated to a tax purposes, the trusts do not ut of the ashes of the real mary residence are excluded revocable survivor’s trust (Trust qualify for capital gains exclusion estate implosion of the from federal adjusted gross A), while the deceased spouse’s under Section 121. Oearly 1990s, California income and from California tax- property is allocated to two irrev- While the surviving spouse’s homeowners have come to enjoy able income. California home- ocable trusts, one (Trust B) basis in the residence for income a period of impressive growth in owners therefore may avoid not designed to utilize the decedent’s tax purposes will be stepped-up to the values of their homes. As a only federal capital gains taxes unified credit (presently $1 mil- the fair market value at the date result of decades of appreciation but may also escape state per- lion) against estate and gift tax of the deceased spouse’s death, in property values, with gains in sonal income taxes, which treat and the other (Trust C) to defer recent experience shows that housing prices outstripping the long-term capital gain as ordinary taxation through the unlimited homes can undergo rapid and performance of the equity mar- income. marital deduction available to substantial appreciation. When kets,1 everyday California home- Section 121, however, pres- qualified transfers to a spouse.5 the appreciation occurs after the owners may find themselves mil- ently does not extend its benefits Trust B (the bypass trust) sets death of the first spouse, the sur- lionaires on paper even though to homes owned in nongrantor aside a portion of the decedent’s viving spouse may be disap- they have little disposable income trusts, such as marital deduction property to be transferred with- pointed—or angry—to learn that and hardly lead the lifestyle of and bypass trusts, which are out the incidence of estate taxes. recent gains are fully taxable on the rich and famous. often established after the death Trust C (the marital deduction the fiduciary income tax returns In recent years, homeowners of a spouse.4 Consequently, sur- trust) is often structured as a of the bypass and marital deduc- have increasingly viving spouses, as qualified terminable interest prop- tion trusts. been able to reap Terence S. Nunan is a well as other bene- erty, or “QTIP” trust, designed For this reason, estate plan- the benefits of shareholder in Rutter ficiaries of non- to meet the requirements of IRC ners are well advised to consider home appreciation Hobbs & Davidoff, grantor trusts may Section 2056(b)(7). The surviving ways to enable surviving spouses, on a tax-free basis. Inc., in Century City. be unpleasantly spouse is entitled to distributions or any beneficiary of a non- “Cash-out” refi- William R. Burford is surprised to find of all income of a QTIP trust at grantor trust who may reside in nancings, for exam- an associate with the themselves shut least annually and may also be a trust-owned property, to take ple, have allowed firm. Both attorneys out from sharing in provided access to additional prin- advantage of Section 121 and the homeowners to specialize in estate the generous tax cipal if needed for his or her generous exclusions available to use home equity to planning, trust exemptions pro- health, maintenance, or support. sellers of a primary residence. support current administration, and vided by Section The creation of bypass and consumption. A probate litigation. 121. However, the marital deduction trusts will gen- Creating Section 678 change in federal inclusion of “5 & 5” erally eliminate estate taxes on a Trusts tax law has also powers in an estate portion of the estate and defer A novel way to qualify non- permitted—and, some say, plan may convert nongrantor estate taxes on the remainder grantor trusts for the benefits of encouraged—homeowners to tap trusts into IRC Section 678 until the death of the surviving Section 121 is to provide the sur- into tax-exempt gains by selling grantor trusts and enable the ben- spouse. Because personal resi- viving spouse with annual with- their homes.2 Since its amend- eficiaries to enjoy the same cap- dences constitute a substantial drawal rights that fit within IRC ment in 1997, Internal Revenue ital gains exclusions that are avail- portion of many estates, owner- Section 2041’s 5 & 5 provisions, Code Section 121 has allowed taxable to other homeowners under ship of a couple’s home is often which allow for the creation of payers who have owned and Section 121. allocated, in whole or in part, to powers of appointment over the

LOS ANGELES LAWYER / NOVEMBER 2003 25 greater of $5,000 or 5 percent of the trust’s trust rules of Sections 671 through 679.10 It is also advisable, and easy, to provide the value annually without triggering inclusion of The IRS has also addressed the practical surviving spouse with the ability to undo the the entire trust in the taxable estate of the effects of 5 & 5 powers of appointment on non- Section 678 trust. For example, the surviving holder of the power.6 This can be accom- grantor trusts in private letter rulings.11 In one spouse may not wish to pay tax on trust plished by including the following provision ruling, under which a bypass trust estab- income or capital gain that is not distributed in a marital deduction or bypass trust: lished on the death of the first spouse allowed to the survivor. If the surviving spouse During each calendar year after the for 5 & 5 withdrawals annually by the sur- appoints a cotrustee or successor trustee death of the first trustor to die, the viving spouse, the IRS explained the effect of “adverse” to the survivor’s interests (for exam- surviving trustor shall have the right the 5 & 5 power on the bypass trust as follows: ple, a child with a remainder beneficiary inter- to withdraw assets of Trust B or Trust After each succeeding year in which est in the trust), the Section 678 trust, in C (including but not limited to partial the Taxpayer fails to exercise his most relevant respects, will no longer qualify interests in real and personal prop- power, he will be treated as the owner as a grantor trust15 and will not be considered erty) designated by the trustee, proof an increasing portion of the corpus as being owned by the surviving spouse for vided that the value of the designated of the trust. The annual increase of income tax purposes. assets may not exceed five percent the portion of the corpus of [the bypass Trust administration. The practical ben- (5%) of the total value of the trust estate trust] of which Taxpayer will be treated efits of including 5 & 5 powers might be of the Trust as of the end of the cal- as the owner is the product of the diminished if costly steps necessary to make endar year with respect to which the amount which he could withdraw mul- precise and timely allocations have to be designated assets may be withdrawn. tiplied by a fraction, the numerator of undertaken annually. For example, the The right of withdrawal with respect to which is the portion of the trust corpus expenses of annual appraisals of real property, such designated assets shall be non- that he is not already treated as own- execution and recordation of fractional inter- cumulative and may only be exercised ing, and the denominator of which is est deeds, and legal and accounting fees by the surviving trustor during the the total trust corpus from which the might outweigh a potential, but uncertain, last fourteen (14) days of the calen- withdrawal could be made.12 future tax benefit. The records of numerous dar year by delivery by the surviving The benefits of the Section 678 trust may deeds to one or more trustees might also trustor of a written notice of withdrawal be multiplied by applying it to another resi- create difficulties in procuring title insurance to the trustee of the Trust. To the dence in which the trust acquires an interest if the property is refinanced. The IRS, how- extent that the surviving trustor does following an initial sale or, if the surviving ever, has held that successive failures to exer- not exercise the right of withdrawal, spouse remarries, doubling the exclusion cise 5 & 5 powers will result in annual said right of withdrawal with respect to amount to $500,000, assuming the spouses file increases in the portion of the corpus of the such designated assets shall lapse and a joint return and both meet the two-year use trust for which the holder of the power will be the designated assets shall be allo- requirement of Section 121.13 Yet another treated as the owner under Section 678(a)(2) cated to a separate trust to be known potential tax benefit arising from the creation and, it appears, that these increases occur as as the “678 Trust B” or “678 Trust C,” of Section 678 trusts is that, like a “defec- a matter of law, with or without formal trans- which Trust shall have the same terms tive” trust, the surviving spouse may pay any fers or annual allocations to the Section 678 and conditions as Trust B or Trust C, income taxes that are due from funds other- trust.16 Based on this reasoning, a trustee respectively, except that the 678 Trust wise subject to estate taxation, thereby effec- should be able to avoid substantial ongoing shall have no withdrawal rights for the tively reducing the survivor’s taxable estate.14 administrative expenses. surviving trustor of the type set forth Consistency with other statutes. IRC in this paragraph. Cautionary Notes Section 2041 powers of appointment may be Under this provision, the beneficiary is While granting 5 & 5 powers to a trust ben- exercised in favor of the holder of the power granted a power to withdraw on an annual eficiary may provide substantial income tax or anyone else. Section 2056, on the other basis up to 5 percent of the trust principal. To benefits, the inclusion of this power should be hand, dictates that the terms of a QTIP trust the extent this right is not exercised, the por- carefully considered, and the attorney draft- permit the powers appointments be given tion of the trust corpus subject to the power ing the trust documents should ensure that only to the surviving spouse and to no other is converted to a virtually identical, parallel the tax benefits are not achieved at an unnec- person.17 The power to appoint the trust prin- trust eligible for treatment as a grantor trust essary or undesirable cost. cipal therefore must be limited to the sur- under Section 678,7 assuming the trust oth- Family dynamics. The inclusion of the 5 viving spouse, or the QTIP trust will not be eli- erwise falls within one of the categories of rec- & 5 power will work best when a trusting gible for the marital deduction. ognized grantor trusts.8 As the Section 678 relationship exists between the surviving Providing a surviving spouse with Section trust grows annually, the surviving spouse (or spouse and the remainder beneficiaries of 2041’s 5 & 5 powers of appointment in a any similarly situated beneficiary) may be the trust. Recall that the Section 678 trust is bypass or marital deduction trust may allow able to exclude from taxation some or all of “funded” by lapsing 5 & 5 powers. If a survivor the survivor–and the trust’s other beneficia- a residence’s appreciation after the death of exercises the power of appointment, this prop- ries–to enjoy the significant capital gain exclu- the first spouse. erty is removed from the trust. To address the sion features of Section 121. When carefully The Internal Revenue Service has held possibility that a surviving spouse might exer- considered and tailored, these powers of that nongrantor trusts treated as grantor cise the power of appointment to the detri- appointment can yield substantial income tax trusts under Section 678 are eligible for ment of the remainder beneficiaries, the pro- advantages at little or no additional expense Section 121 exclusion.9 Recently issued final vision granting the 5 & 5 power and creating and with minimal administrative burden. ■ regulations interpreting Section 121 also con- the Section 678 trust may provide that the firm that Section 121 may apply to residences power be extinguished after it is exercised for 1 For example, median home prices in January 1997 held in trust, but only if the taxpayer is treated the first time. stood at $164,000 in Southern California and $231,000 as the owner of the trust under the grantor Ability to revert to nongrantor status. in the San Francisco Bay Area. By the beginning of

26 LOS ANGELES LAWYER / NOVEMBER 2003 2003, these figures had increased to $289,000 and $416,000, respectively. With annualized returns of Weinstock, Manion, San Fernando Valley approximately 10%, home prices have easily outpaced equity benchmarks such as the S&P 500 Index (2.91%) Reisman, Shore & and NASDAQ (0.68%) during the same period. Estate Planning Moreover, some of the strongest growth has occurred Neumann in the sales of homes valued over $1 million, which grew Council from 3,762 in 1997 to 13,828 in 2002 and jumped 45.5% A LAW CORPORATION in 2002 alone. See Dataquick Information System a not-for-profit MCLE provider archives, available at www.dqnews.com. 2 M. Jameson, Yours to Keep: The Law Allowing Tax-Free Advising Clients and Gains on Most Home-Sale Profits Entices Some to Sell, 2003 CALENDAR: but Many Remain Unaware That They Can Take the Families Since 1960 Money and Run, LOS ANGELES TIMES, June 22, 2003, at K1 (examining whether tax-free treatment of gains has ◆ Estate Planning for High — OCTOBER 23 — led some homeowners to begin actively trading in the Net Worth Families BUILDING YOUR housing market). ◆ 3 Under previous law, taxpayers were permitted to Estate and Trust ESTATE PRACTICE rollover gains into another home and allowed a one-time Administration — DECEMBER 4 — capital gain exclusion after the age of 55 of up to ◆ $125,000. General Business and SPECIAL NEEDS 4 This may change if the estate tax is repealed. See Corporate Law I.R.C. §121(d)(9) (For decedents dying in 2010, trusts ◆ TRUSTS that were qualified revocable trusts immediately prior Taxation; Real Estate to death are eligible for exclusion.). ◆ Trust and Estate and Civil AIRTEL HOTEL • 6 P.M. 5 The three-trust structure is more common in com- Litigation munity property states, like California. In noncommu- Dinner and MCLE included nity property states, separate trusts are often established for each spouse and, upon the death of the first (310) 553-8844 No charge for first-time spouse, the decedent’s trust will be divided into bypass (310) 553-5165 (facsimile) guests and marital deduction subtrusts. A simpler structure may also be employed, establishing only a bypass trust www.weinstocklaw.com For Reservations: and leaving the rest of decedent’s property to the sur- Robert M. Weinstock, JD, CBA vivor outright. In this case, any portion of the resi- 1875 Century Park East, Suite 1500 dence allocated to the survivor would be eligible for Los Angeles, CA 90067 (818) 591-9282 §121 exclusion. 6 I.R.C. §2041(b)(2). 7 I.R.C. §678(a)(2) (A person other than the grantor shall be treated as the owner of any portion of a trust with respect to which such person has previously released a power to vest the corpus of the trust to himself or herself and, after the release, retains such control as would expert4law subject the grantor of the trust to treatment as its owner under the principles of IRC §§671 to 677.). The Legal Marketplace 8 E.g., I.R.C. §677(a)(1) (grantor treated as owner of portion of trust whose income, without the approval or consent of any adverse party, may be distributed to the NEED? grantor or the grantor’s spouse). 9 Rev. Rul. 85-45 (If trust owns beneficiary’s principal res- Expert Witnesses, Investigators, Legal Consultants, idence and beneficiary is treated as owner of the entire Arbitrators, Mediators, Private Judges, Special Masters, trust under §§671 and 678, beneficiary was eligible to exclude gains realized on the sale of residence under and other legal support service providers the pre-1997 version of §121.). 10 T.D. 9030, 67 Fed. Reg. 78358-01 (Dec. 24, 2002) FIND THEM HERE! and 68 Fed. Reg. 6350-02 (Feb. 7, 2003). In the final regulations, the Treasury Department cited rulings made under the earlier version of §121. Interestingly, it also expert4law–The Legal Marketplace, considered, but declined to adopt, a comment that a sur- now in its seventh year, is the best viving spouse be permitted one year after the first on-line directory for finding expert spouse’s death to utilize the entire $500,000 exclusion granted to married taxpayers filing jointly. witnesses, legal consultants, 11 See Priv. Ltr. Rul. 200104005 (Jan. 26, 2001). litigation support, lawyer-to- 12 Id. 13 26 C.F.R. §1.121-2(a)(3). lawyer networking, dispute 14 The conversion of portions of a marital deduction or resolution serbice providers, law bypass trust into a parallel §678 trust will not increase office technology, and research and the surviving spouse’s taxable estate. The full value of the marital deduction trust will be taxed at the sur- publishing. vivor’s death. I.R.C. §2044(b)(1)(A). Assuming it is www.expert4law.org otherwise properly drafted, the bypass trust remains exempt from estate taxation at the death of the surviving spouse. 15 See I.R.C. §677. 16 Priv. Ltr. Rul. 2000104005 (Jan. 26, 2001). This comprehensive directory is the one-stop site for your legal 17 I.R.C. §2056(b)(7)(B)(ii)(II). support needs. Available 24 hours a day!

LOS ANGELES LAWYER / NOVEMBER 2003 27 By Dominick C. Capozzola

Because the right to privacy is guaranteed by the California Constitution, it can trump statutory limitations on objections to discovery demands Discovering

PRIVACYAccording to California’s Discovery Act, What sets the privacy objection apart from the failure to provide timely objections or all the others is that the right to privacy responses to the discovery demands of derives from the California Constitution.2 another party results in a waiver of all objec- Although the right to privacy is not absolute, tions to those demands.1 This means that if the constitution requires judicial, legislative, a responding party has allowed a discovery and executive bodies to meet the “strict deadline to pass, that party must produce scrutiny” standard before an invasion of pri- information that otherwise would receive vacy will be permitted.3 In other words, any protection under the attorney-client privi- statute or court order that threatens a privacy lege, the work product doctrine, or other interest must be “narrowly tailored” to serve evidentiary objections available under a “compelling state interest.”4 California law. By contrast, the other common discov- Despite this waiver rule, fundamental prin- ery objections—“unduly burdensome and ciples of constitutional law, along with dicta overbroad,” “attorney-client privilege,” “not from a number of cases, suggest that an reasonably calculated to lead to the discovery objection based on the right to privacy can of admissible evidence,” and the like—derive never be waived simply by failing to raise it from statutes.5 They are the product of the in response to discovery demands. In fact, this state legislature. Because the legislature pro- broad constitutional protection even can be vides these objections, it can freely decide asserted for the ﬁrst time in an opposition to when these objections are waived, and it did a motion to compel discovery responses. so when it enacted the Discovery Act. The act Furthermore, in many cases the right to privacy can safeguard the documents one would Dominick C. Capozzola is an associate in the most want to protect from disclosure, and it Los Angeles office of Ogletree, Deakins, Nash, can even rehabilitate those statutory objec- Smoak & Stewart, P.C. His practice focuses on

tions that one may have thought were lost. labor and employment litigation. DENNIS IRWIN

28 LOS ANGELES LAWYER / NOVEMBER 2003 LOS ANGELES LAWYER / NOVEMBER 2003 29 purports to force parties to waive all objec- the unknown, unnamed female part- the court found that the plaintiff could have tions not timely raised.6 ners of Boler who have neither exe- simply obtained a list of female employees and Code of Civil Procedure Section 2031(l), cuted a waiver nor are necessarily asked them if they had been sexually for example, states, “If a party to whom an aware their privacy interests are endan- harassed by Boler.19 Third, the court found inspection demand has been directed fails to gered by the deposition question.13 that the order employed “unfortunate, and in serve a timely response to it, that party waives Having concluded that Boler properly some cases anachronistic, terminology which any objection to the demand, including one raised the privacy objection in his opposition results in an overly intrusive inquiry.”20 based on privilege or on the protection for papers, the court then held that the discovery Boler demonstrates that, for parties who work product….”7 Likewise, Section 2030(k) order violated the right to privacy.14 fail to timely respond to discovery demands, divests litigants of the right to object to inter- Comparing the right to sexual privacy with the privacy objection can alleviate a substan- rogatories when they do not timely respond, other aspects of the right to privacy, such as tial amount of the burden produced by those while Section 2025(m) does the same for associational privacy and financial privacy, demands. Indeed, the right to privacy usually depositions.8 However, although the legisla- the court observed: protects the information that litigants would ture can set the circumstances under which The sexual privacy right is not ab- least want to disclose. In addition to one’s statutory privileges may be waived, it does not solute, and disclosure may be com- sexual history,21 the right to privacy can also have the authority to take away a right pro- pelled in court proceedings; disclo- protect other information such as tax records,22 vided by the constitution. sure is only justified, however, if the bank records,23 and medical information.24 If a party wants to compel another party sought after disclosure would serve In Heda v. Superior Court, for example, to provide discovery responses, it will have to the compelling interest of the facilitation the plaintiff sought the medical records of seek an order from the court.9 Still, like the of truth in legal proceedings.…An the defendant—who evidently was terminally legislature, the courts also lack the authority intrusion upon sexual privacy may only ill—in order to support a motion for a trial pref- to craft an order that ignores the constitu- be done on the basis of practical neces- erence. Notably, the defendant did not raise tional right to privacy. Notwithstanding the sity, and the compelled disclosure the physician-patient privilege in his discovery desire of the legislature to deprive parties of [must] be narrowly drawn to assure responses.25 Notwithstanding that fact, the all objections not timely raised, courts cannot maximum protection of the constitu- court concluded that: exceed their constitutional mandate to respect tional interests at stake.15 Plaintiff’s desire for a trial preference the individual’s right to privacy. When legiti- Ultimately, the court concluded that the does not outweigh defendant’s consti- mate privacy concerns are raised, court discovery order sought information that was tutional right to privacy for medical orders must be narrowly tailored to meet a not necessary to the litigation and, in any records. Defendant’s presence at trial, compelling governmental objective. Other- event, the order was not narrowly tailored.16 while desirable, is not essential. Much wise, the orders will be unconstitutional. A number of other appellate courts also have of what plaintiff seeks by her prefer- applied a strict scrutiny analysis to discovery ence motion, she may obtain by depos- Rigorous Test orders when privacy objections are at issue, ing defendant.…If defendant does not In Boler v. Superior Court, the defendant in a and almost always, those discovery orders survive, she may substitute his estate sexual harassment lawsuit refused to answer were either rejected or substantially limited.17 as defendant in the action.26 questions about his sexual activity with The reason that courts apply such a rig- unnamed women who were not parties to orous test is that the constitution compels Reviving Statutory Objections the lawsuit. At his deposition, he merely them to do so. A court order that invades a In addition to protecting highly private infor- claimed that the testimony was not relevant. person’s right to privacy, like any other leg- mation, the right to privacy also can enable A motion to compel followed, and the defen- islative or administrative pronouncement, parties to rehabilitate statutory objections dant raised the right to privacy for the first must be narrowly tailored to meet a com- that they may have thought were waived. time in opposition to the motion.10 The trial pelling governmental interest.18 There are two reasons why this is so. court considered the privacy objection, but it The reason that discovery orders often First, a number of the statutory privileges found that the defendant “has no right to pri- fail to meet the “narrowly tailored” require- are premised on the need for privacy and vacy in this matter for the purpose of this ment is that counsel preparing the discov- confidentiality and, arguably, they are only suit…where it is a suit of this type.”11 ery requests upon which those orders are intended to strengthen these important rights. On a petition for writ of mandate, the based seldom take the time to make their For instance, the attorney-client privilege, appellate court reversed the ruling of the discovery requests as narrow as possible to the physician-patient privilege, and the priest- trial court.12 The court first agreed with the obtain the necessary information. To the con- penitent privilege were established to pro- trial court’s finding that Boler did not waive trary, counsel usually make the requests tect confidential relationships.27 When a party his privacy objection by failing to raise it in his broader than necessary, and courts inclined waives these objections by failing to timely deposition. It stated: to grant motions to compel in spite of pri- raise them, the party should not also lose The waiver rule does not appear to vacy concerns face the unpleasant situation of the privacy interest on which the privileges necessarily apply to the sexual privacy either drafting the discovery orders them- were founded. Rather, the absolute privileges context for two compelling reasons. selves or adopting broad discovery requests provided by the legislature should disappear, First, specific discussions and statu- as their orders. but the qualified privilege provided by the tory language suggest waiver only in For instance, in Boler, the lower court California Constitution should remain intact. matters of evidentiary privilege and tried to enforce the discovery demand as Regardless of whether statutory privileges attorney work product; the constitu- phrased by the party making it, and the appel- apply or are asserted properly, whenever com- tional right of sexual privacy involves late court rejected the discovery order for munications are “tendered under a guaranty neither a statutory evidentiary privi- three separate reasons. First, the order was of confidentiality, they are thus manifestly lege nor work product. Second, the not limited to the period of time when Boler within the Constitution’s protected area of sexual privacy protection extends to and the plaintiff worked together. Second, privacy”28 and should be treated accordingly.

30 LOS ANGELES LAWYER / NOVEMBER 2003 In Heda, for example, the court had no trouble using the right to privacy to prevent the plaintiff from obtaining the defendant’s medical records, despite the defendant’s failure to assert the physician-patient privilege: We deliberately bypass the narrower physician-patient privilege argument in favor of the constitutional argument….Because the Constitution protects this information, we need not decide whether the physician-patient privilege does too.29 The second way that the right to privacy can rehabilitate waived statutory objections arises from the application of a strict scrutiny analysis. Discovery requests that raise privacy concerns must be as narrowly tailored as possible to meet a compelling governmental interest. As a consequence, courts are forced to weigh both the relevance and the burden imposed by the particular requests. A good illustration of this principle can be found in Boler and the appellate court’s reasoning for rejecting the discovery order. First, the court held that the order was not limited to the time period when Boler and the plaintiff worked together.30 Phrased a different way, the order sought information that was neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. This, of course, is the standard set forth by the legislature in Code of Civil Procedure Section 2017(a) for defining the proper scope of discovery.31 The second reason the court struck the his opposition to the plaintiff’s motion to com- if properly claimed, can act as an absolute discovery order was that the plaintiff could pel, Boler was able to obtain the advantages bar. For instance, the attorney-client privi- have obtained a list of female employees and of the statutory objections based on both the lege (subject to several narrow exceptions) asked them if they had been harassed.32 The relevance and the burden imposed by the allows parties to withhold from disclosure court, while ostensibly restricting its analysis discovery request. all information covered by that privilege, no to privacy grounds, was granting Boler the Britt v. Superior Court provides another matter how narrowly drawn the request or same protections afforded by Code of Civil example of how privacy rehabilitates other how compelling the need for disclosure.39 Procedure Section 2019(b). This section statutory objections.37 Although the plaintiffs Moreover, it would be dangerous to rely allows courts to issue protective orders when in Britt had waived their physician-patient exclusively on the right to privacy. Indeed, the information “is obtainable from some other privilege regarding the medical conditions concept of a right to privacy means different source that is more convenient, less burden- at issue in the lawsuit, the court held that things to different people. It is hard to tell some, or less expensive.”33 “such waiver extends only to information what a court will deem private, and all but the The third reason that the Boler court relating to the medical conditions in question, most courageous and the most foolish should rejected the discovery order was that it and does not automatically open all of a plain- be sure to include every statutory objection “result[ed] in an overly intrusive inquiry.”34 tiff’s past medical history to scrutiny.”38 Thus, that properly applies to each discovery The court could just as well have used the leg- the court rejected the discovery order request, no matter how obvious the privacy islature’s language and stated that the dis- because it sought information that was not rel- interest. covery order was “unduly burdensome or evant to the lawsuit. expensive, taking into account the needs of Although the right to privacy can be a Determining the Meaning of Privacy the case, the amount in controversy, and the useful tool for minimizing the damage caused The right to privacy, if properly claimed, can importance of the issues at stake in the liti- by waived discovery objections, litigants go a long way toward salvaging waived dis- gation.”35 This is an alternate basis for a pro- should take advantage of these statutory priv- covery objections. But how does one deter- tective order under Section 2019(b).36 ileges whenever possible. The right to privacy mine when the right to privacy applies? Although the Boler court tried to decide will not help a party to withhold private infor- The California Supreme Court observed the case on privacy grounds, it could not help mation if the discovery order meets the strict in Valley Bank of Nevada v. Superior Court that but unintentionally delve into the statutory scrutiny test. In Heda, the outcome might the right to privacy is not well defined, but “we objections in order to determine whether the have been different had the defendant estab- may safely assume that the right of privacy discovery order met the strict scrutiny stan- lished a more compelling need for the infor- extends to one’s confidential financial affairs dard. Thus, by raising a privacy objection in mation. By contrast, the statutory privileges, as well as the details of one’s personal life.”40

LOS ANGELES LAWYER / NOVEMBER 2003 31 5 Since this decision, the right to privacy has scout. To date, the penumbra is limited CODE CIV. PROC. §§2017(a), 2019(b); EVID. CODE §954. 6 The Discovery Act, CODE CIV. PROC. §§2016 et seq. been addressed in a variety of other contexts, to the relationship of husband and 7 CODE CIV. PROC. §2031(l) (emphasis added). 45 and the courts have been relatively liberal in wife. 8 CODE CIV. PROC. §§2025(m), 2030(k). defining the scope of a privacy interest. In Ultimately, the undefined nature of the 9 CODE CIV. PROC. §§2025(o), 2030(k), 2031(l). Boler and Heda, the courts of appeal declared constitutional right to privacy may work to the 10 Boler v. Superior Ct., 201 Cal. App. 3d 467, 470, 471 that the right to privacy applies to sexual advantage of parties who, for one reason or (1987). 11 Id. at 471. activity and medical information.41 In Garstang another, fail to timely object to discovery 12 Id. at 475-76. v. Superior Court, the court held that state- demands. An imaginative attorney can find a 13 Id. at 472 n.1. ments made before an ombudsperson are reason why almost any discovery demand 14 Id. at 473-75. protected by the right to privacy.42 And in intrudes on a person’s right to privacy, par- 15 Id. at 473-74 (emphasis added and internal quotes City of San Jose v. Superior Court, the court ticularly because the protection can extend to omitted). 16 approved on privacy grounds the city of San parties not involved in the lawsuit.46 Thus, Id. at 473-75. 17 Britt v. Superior Ct., 20 Cal. 3d 844 (1978); Valley Bank Jose’s refusal to provide information about counsel in good faith often can obtain the of Nev. v. Superior Ct., 15 Cal. 3d 652 (1975); Garstang people who called the city to complain about benefit of almost any discovery objection that v. Superior Ct., 39 Cal. App. 4th 526 (1995); Heda v. airport noise.43 would have been available if it had been timely Superior Ct., 225 Cal. App. 3d 525 (1990); Mendez v. The right is not necessarily as broad as offered. Superior Ct., 206 Cal. App. 3d 557 (1988); Board of one might think, however. In the case of In re Of course, the court can and will sanction Trs. v. Superior Ct., 119 Cal. App. 3d 516 (1981). 18 Britt, 20 Cal. 3d at 848-49. Terry W., the only evidence of Terry’s involve- attorneys who make meritless objections to 19 Boler, 201 Cal. App. 3d at 474-75. 47 ment in a burglary was his confidential con- motions to compel. Counsel must weigh this 20 Id. at 474. fession to his mother.44 Despite the seem- risk against both the need to protect infor- 21 Mendez v. Superior Ct., 206 Cal. App. 3d 557, 570-72 ingly obvious privacy interest inherent in mation and the strength of the privacy inter- (1988); Boler, 201 Cal. App. 3d at 474-75. 22 communications between a parent and child, est involved. Nevertheless, counsel should Schnabel v. Superior Ct., 5 Cal. 4th 704 (1993). 23 Valley Bank of Nev. v. Superior Ct., 15 Cal. 3d 652, the court found that the right to privacy did find comfort in the fact that the privacy option 656 (1975). 48 ■ not apply, and the mother was forced to tes- is available to them should the need arise. 24 Heda v. Superior Ct., 225 Cal. App. 3d 525, 527-29 tify against her son. The court stated: (1990). 25 The assertion of a penumbral right of 1 CODE CIV. PROC. §§2025(m), 2030(k), 2031(l), 2033(k). Id. 26 privacy which protects all intra-family 2 CAL. CONST. art. 1, §1. Id. at 528-29; see also Valley Bank, 15 Cal. 3d at 657. 3 27 VID. ODE VID. communication from compelled dis- Britt v. Superior Ct., 20 Cal. 3d 844, 848-49 (1978); E C §954 (attorney-client privilege), E Punsley v. Ho, 105 Cal. App. 4th 102, 110, 114 (2003). CODE §994 (physician-patient privilege), EVID. CODE closure strives to reach new ground 4 Punsley, 105 Cal. App. 4th at 110; see also Britt, 20 Cal. §1033 (privilege of penitent), EVID. CODE §1034 (privi- which a court of our level is unwise to 3d at 848-49. lege of clergyman). See also EVID. CODE §980 (privilege for confidential marital communications), EVID. CODE §1014 (psychotherapist-patient privilege), EVID. CODE §1035.8 (sexual assault victim-counselor privilege), EVID. CODE §1037.5 (domestic violence victim-counselor privilege). 28 Garstang v. Superior Ct., 39 Cal. App. 4th 526, 533 (1995) (citing Board of Trs. v. Superior Ct., 119 Cal. App. 3d 516, 527 (1981)). 29 Heda, 225 Cal. App. 3d at 528 n.1; see also Garstang, 39 Cal. App. 4th at 533. 30 Boler v. Superior Ct., 201 Cal. App. 3d 467, 474 (1987). 31 CODE CIV. PROC. §2017(a). 32 Boler, 201 Cal. App. 3d at 474. 33 CODE CIV. PROC. §2019(b)(1). 34 Boler, 201 Cal. App. 3d at 474-75. 35 CODE CIV. PROC. §2019(b)(2). 36 Id. 37 Britt v. Superior Ct., 20 Cal. 3d 844, 849 (1978). 38 Id. at 849 (emphasis in original). 39 EVID. CODE §954. 40 Valley Bank of Nev. v. Superior Ct., 15 Cal. 3d 652, 656 (1975). 41 Boler v. Superior Ct., 201 Cal. App. 3d 467, 473-74 (1987); Heda v. Superior Ct., 225 Cal. App. 3d 525, 528- 29 (1990). 42 Garstang v. Superior Ct., 39 Cal. App. 4th 526, 533 (1995). 43 City of San Jose v. Superior Ct., 74 Cal. App. 4th 1008 (1999). 44 In re Terry W., 59 Cal. App. 3d 745, 748 (1976). 45 Id. at 748-49. 46 See, e.g., Valley Bank of Nev. v. Superior Ct., 15 Cal. 3d 652 (1975); Boler, 201 Cal. App. 3d 467. 47 CODE CIV. PROC. §§2025(o), 2030(k), 2031(l). 48 There are other options as well. Counsel can attempt to set aside waivers under the Code of Civil Procedure. See CODE CIV. PROC. §2030(k) (interrogatories), CODE CIV. PROC. §2031(l) (document demands), CODE CIV. PROC. §2033(k) (admissions).

32 LOS ANGELES LAWYER / NOVEMBER 2003 MCLE ARTICLE AND SELF-ASSESSMENT TEST Sponsored by By reading this article and answering the accompanying test questions, you can earn one MCLE credit. COURTCALL® LLC To apply for credit, please follow the instructions on the test answer sheet on page 37. Telephonic Court Appearances

By Mark Mermelstein Searching FARand WIDE As extraterritorial searches by U.S. law enforcement

increase, practitioners advising clients abroad need to be

aware of relevant domestic and foreign law

From raids of drug trafficker hideouts in advise a client and gather critical facts during agents had not obtained a warrant, there was Central America to sweeps of terrorist resi- the search itself. no compelling reason why law enforcement dences around the world,1 extraterritorial Consider the facts in the U.S. Supreme agents could not get a warrant, and the search searches by U.S. law enforcement officers Court case United States v. Verdugo-Urquidez,5 was improper under Mexican law. are on the rise. Searches abroad by U.S. offi- in which the defendant was suspected of drug From this, one might conclude that if one’s cers are not limited to drug- or terrorist- smuggling and ordering the murder of a U.S. client does not enjoy any Fourth Amendment related crimes but are also conducted in the DEA agent. Mexican police and U.S. agents rights, there is nothing that the practitioner context of business crimes.2 As the extrater- “worked in concert” to kidnap Verdugo- can do to defend against such searches. To ritorial application of U.S. criminal law Urquidez, bring him to the United States to the contrary, an examination of the current becomes more common, foreigners are more stand trial, and, while he was in U.S. custody, state of the law relating to extraterritorial likely to ﬁnd themselves in violation of U.S. search his home in Mexico. In ruling upon the searches reveals that there are indeed mech- criminal law without even setting foot on U.S. defendant’s motion to suppress the fruits of anisms for defending an extraterritorial soil.3 Extraterritorial searches are now a key that warrantless search in his U.S. criminal search and possibly laying the foundation for mechanism to gather evidence for the pros- prosecution, the Supreme Court held that ecution of these extraterritorial violations of foreigners do not have the protection of the Mark Mermelstein is a member of the Litigation U.S. criminal law.4 Given the current climate, Fourth Amendment.6 The Supreme Court and Business Crimes and Investigations practitioners advising multinational corpora- ruled that the evidence seized in the defen- Practice Groups of Gibson Dunn & Crutcher tions or individuals abroad should acquire a dant’s Mexican home could come into evi- LLP in Los Angeles. He would like to thank his working knowledge of the law relating to dence in his criminal prosecution,7 notwith- colleague Joel Athey for the time and attention extraterritorial searches in order to properly standing the fact that U.S. law enforcement he devoted to editing this article.

LOS ANGELES LAWYER / NOVEMBER 2003 33 The U.S. government has hundreds, if not thousands, of

federal agents stationed abroad with the consent of local

governments. The FBI alone has agents, known as legal

attachés (LEGATs), stationed in 52 foreign countries

collecting evidence to be used in a wide array of domestic

criminal prosecutions, including business crimes.

a successful motion to suppress. To analyze of the host nation. Pragmatically, the question arresting non-Swiss law enforcement agents the legality of extraterritorial searches, one to ask is whether a U.S. court would sup- for doing little more than making inquiries in must consider 1) the authority of U.S. law press the results of a search conducted with- Swiss territory.20 Further, the same Justice enforcement agents to search abroad, 2) the out the consent of the host nation,15 particu- Department legal opinion that concludes that effect of bilateral treaties, 3) how the Fourth larly in the business crimes context, in which the president has authority to order extrater- Amendment curtails extraterritorial searches, searches made without the consent of the ritorial, nonconsensual law enforcement and 4) how the due process clause of the host nation may be more commonplace.16 action recognizes the possibility that U.S. law Fifth Amendment comes into play.8 While no court has addressed this question enforcement could be subject to local kid- head-on, the Supreme Court has noted that napping charges.21 As a result, local trespass U.S. Agents Abroad certain U.S. extraterritorial police work—in charges against U.S. officers engaged in a The U.S. government has hundreds, if not particular, the seizure of a Mexican national search without the consent of the host nation thousands, of federal agents stationed abroad to be brought to trial in the United States— is, depending on local law, a distinct possibility. with the consent of local governments. The was conducted without the consent of the FBI alone has agents, known as legal attachés Mexican government, and yet the Court Recommendations for Counsel (LEGATs), stationed in 52 foreign countries upheld a U.S. court’s ability to criminally Accordingly, the first recommendation to collecting evidence to be used in a wide array prosecute the defendant.17 If the nonconsen- practitioners defending a foreign search is of domestic criminal prosecutions, including sual seizure of a person is analogized to a evident: When arriving at the search, counsel business crimes.9 In 2000, the DEA had 338 nonconsensual search, one would conclude should determine which sovereign’s law agents stationed in 44 foreign countries.10 In that a U.S. court would not suppress the fruits enforcement is conducting the search. If the addition, U.S. Customs Service attachés are of an extraterritorial nonconsensual search. search is being conducted by U.S. law enforce- stationed in 26 foreign locations to gather Further, federal government internal guide- ment without the consent of local law enforce- evidence on crimes such as smuggling and lines, such as those that authorize only con- ment, it is possible that the U.S. agents are act- money laundering.11 One must distinguish sensual extraterritorial behavior, are merely ing in contravention of local law. While there the extraterritorial mission of these agen- guidelines for internal use and typically do not may be no remedy for this conduct under cies—to gather evidence for criminal law provide a remedy for a defendant who was U.S. law, there could be a remedy under local enforcement purposes—from that of the CIA, prejudiced by a violation of the guidelines.18 law, such as the issuance of an injunction which typically places agents in foreign Indeed, regarding the authority of U.S. against further searching and trespass. nations, without their consent, for intelli- law enforcement to search extraterritorially, To facilitate extraterritorial investigatory gence-gathering purposes.12 the Justice Department has concluded that work, the United States has entered into a It might seem that the authority of U.S. law the president has inherent constitutional series of mutual legal assistance treaties enforcement to operate outside the United authority to order the FBI to carry out inves- (MLATs). These treaties generally require States is coextensive with the host nation’s tigations and arrests in foreign states, even if the requested state to locate persons believed consent. After all, any action by U.S. law those actions are taken without the consent to be in its territory, execute requests for enforcement without the consent of the local of the host nation.19 In other words, the United searches and seizures, compel a witness’s government would appear to be a clear vio- States has claimed the authority to investigate appearance and production of documents, lation of that nation’s sovereignty. This posi- abroad whether or not the host nation con- and produce records in the government’s tion is supported by the internal guidelines of sents. possession.22 For example, the MLAT the DEA13 and the U.S. Attorney’s Office,14 So, while it appears unlikely that a U.S. between the United States and Mexico pro- which suggest that their respective authority court would suppress evidence that resulted vides that searches and seizures are to be to operate within another country is limited from a U.S. extraterritorial nonconsensual carried out by the host state in accordance by the extent to which the host nation con- search, it is possible that a local court may with the host state’s legal provisions.23 It fur- sents. intercede if the search is undertaken in vio- ther provides that nothing in the treaty To be sure, most searches are conducted lation of that nation’s sovereignty. There is at “empowers one party’s authorities to under- with the consent, and in fact the participation, least one documented case of Swiss officials take, in the territorial jurisdiction of the other,

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This is true even though that text to determine whether a foreign company the authorities of that other party by its same alien receives the protections of both the can be sued in a United States court.38 national laws or regulations.”24 On this basis, Fifth and Sixth Amendments (due process Further, as a matter of fairness, it would seem another argument that might be advanced and counsel, respectively).29 The distinction that if a foreign corporation with a U.S. affil- in a suppression hearing before a U.S. court the Court drew between those with or with- iate can be compelled to produce documents is that an extraterritorial search in violation out a sufficient connection to the United to a U.S. grand jury,39 that same U.S. affiliate of an MLAT is improper because the MLAT States appears to have emanated from Justice (which provides a “connection” to the United is the exclusive mechanism to obtain evi- Wallace’s dissent in the Ninth Circuit’s States) should provide the foreign company dence extraterritorially. Verdugo opinion. Wallace wrote that it is “[n]ot with the standing to challenge a foreign In cases of extradition, counsel have until an alien has assumed the complete range search. If this is the case, the practitioner argued that international extradition treaties of obligations that we impose on the citizenry will need to examine the nature of the provide the exclusive mechanism to seize a may he be considered one of ‘the people of the American business activities or assets that defendant extraterritorially, and therefore U.S.’ entitled to the full panoply of rights guar- the foreign corporation conducts or holds. kidnapping the suspect and bringing him or anteed by our Constitution.”30 The Supreme Furthermore, a proactive practitioner antici- her back to the United States to stand trial is Court did not define what it meant by “suffi- pating an extraterritorial search may recom- illegal. However, case law is clear that inter- cient connection” other than to say that it is mend that the client increase its connection national treaties that provide for extradition that “class of persons who are part of the to the United States. of foreign nationals do not deprive U.S. courts U.S. national community or who have other- Assuming that a client being searched of jurisdiction over individuals and property wise developed sufficient connection with has a sufficient connection to the United that would otherwise be subject to their juris- this country to be considered part of that States, the lawyer should next ascertain who diction.25 In other words, even though there community.”31 is conducting the search. The Fourth are treaties that provide a mechanism to gain As a result, it remains somewhat unclear Amendment does not apply to searches by for- jurisdiction of an individual, U.S. courts will who is entitled to the protections of the Fourth eign governments in their own countries,40 not set aside a conviction obtained against an Amendment abroad. Citizens of the United but the Fourth Amendment does apply to individual who was kidnapped by U.S. law States enjoy Fourth Amendment protection searches conducted as a “joint venture” enforcement.26 Courts in the United States abroad,32 but foreign nationals with a brief, between foreign and U.S. law enforcement.41 reason that treaties are contracts between involuntary physical presence in the United The Fourth Amendment also applies to independent nations and it is up to the States, including those brought to the U.S. to searches conducted by U.S. law enforcement offended nation to determine whether a vio- stand trial, do not have a sufficient connection using “circuitous and indirect” methods, such lation of sovereign interests occurred and to the United States.33 Additionally, enemy as when foreign law enforcement is acting as requires redress. Therefore, an extradited belligerents do not have a sufficient connec- the agent of U.S. law enforcement.42 individual lacks standing to raise a treaty as tion to the United States.34 These principles oblige the practitioner a basis for challenging the court’s jurisdiction. When counsel arrives at a search, he or to take careful, detailed note of who is con- Thus, in considering the question of she should examine the nationality of those ducting the search. Case law is entirely whether an MLAT bars extraterritorial whose property is being searched. The prac- unclear on the level of U.S. law enforcement searches, it is significant that like most titioner should immediately assess whether involvement that causes the search to become MLATs, the U.S.-Mexico MLAT expressly there are individuals who, by virtue of their a joint venture or the evidentiary showing precludes any private right of action based on citizenship or other conduct, bear a sufficient that would be necessary to demonstrate that the treaty.27 To date, there is no precedent connection to the United States. The follow- U.S. law enforcement was using local law about whether the existence of an MLAT pre- ing factors may have a bearing on what con- enforcement as its stalking horse. For this rea- cludes an extraterritorial search. However, stitutes a sufficient connection: Whether the son, the practitioner’s examination should given the case law, and the exclusion of pri- alien 1) maintains a place of residence within include not only who is physically searching vate remedies in most MLATs, it appears the United States,35 2) owns property within but also should examine the level of U.S. unlikely that the existence of an international the United States,36 3) pays U.S. taxes, 4) has activity before, during, and after the search. treaty will bar the admission in a criminal resided within the United States, and 5) has Questions the practitioner should address prosecution of evidence that was obtained been absent for only a limited time from the include: Whose investigation is it? Who by an extraterritorial search. United States and intends to return. If the planned and instigated the search? Who spec- After having reviewed international law alien does have a sufficient connection to the ified the items to be seized? To whom was the constraints on U.S. extraterritorial searches, United States, the Fourth Amendment applies evidence brought to decide if it was to be the next question for defense counsel is to a search. If the alien does not, the Fourth seized? Has there been any communication as whether U.S. domestic law provides any con- Amendment may not apply. to which law enforcement agency would keep straints on the searches. The Fourth Another question still unanswered by case the evidence seized during the search? Where Amendment protects the “right to be free of law is whether a foreign company has stand- is the trial to take place? Is there any evi- unreasonable searches and seizures.” The ing to challenge an extraterritorial search. dence that U.S. agents were attempting to Supreme Court has made clear that, in the While it is clear that a corporation has stand- undermine the Fourth Amendment rights of context of extraterritorial searches by U.S. law ing to challenge an unlawful search in the a citizen by “circuitous and indirect” methods? enforcement, the Fourth Amendment does United States,37 it is unclear whether the suf- Whether a search may be found to be a not apply to non-U.S. citizens or those with- ficient connection standard, which the Court joint venture is a highly fact-specific deter- out “sufficient connection” to the United applies to foreign individuals, is also applica- mination. The list of cases finding that the States.28 In other words, no matter how unrea- ble to foreign corporations. One could imag- level of U.S. law enforcement participation sonable a search by U.S. law enforcement is, ine a court defining “sufficient connection” as was insufficient to constitute a joint venture a nonresident alien does not have standing to synonymous with “minimum contacts,” which is long,43 but at least two appellate courts

36 LOS ANGELES LAWYER / NOVEMBER 2003 MCLE Answer Sheet #120 SEARCHING FAR AND WIDE This Los Angeles Lawyer MCLE 9. Because international extradition treaties Sponsored by CourtCall LLP provide the exclusive mechanism to obtain self-study test is sponsored by Name jurisdiction over an individual living outside the Law Firm/Organization ® United States, it is impermissible for U.S. law COURTCALL LLC enforcement to kidnap foreigners and bring Telephonic Court Appearances them to the United States to stand trial. Address True. City False. 10. Treaties are contracts between independent State/Zip nations, and it is up to the offended nation, not E-mail MCLE Test its citizens, to determine whether a violation of Phone its sovereign interest has occurred. State Bar # True. False. Instructions for Obtaining MCLE Credits No. 120 11. A U.S. court will suppress the confession of a foreigner obtained by U.S. law enforcement 1. Study the MCLE article in this issue. in the course of administering a beating of the 2. Answer the test questions opposite by The Los Angeles County Bar Association foreigner on foreign soil. marking the appropriate boxes below. Each certifies that this activity has been True. question has only one answer. Photocopies of approved for Minimum Continuing this answer sheet may be submitted; however, False. Legal Education credit by the State Bar this form should not be enlarged or reduced. 12. Foreigners have the right to counsel when of California in the amount of 1 hour. they are tried in a U.S. courtroom. 3. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to: True. False. Los Angeles Lawyer 1. U.S. law enforcement officers are permitted 13. The citizenship of individuals whose prop- MCLE Test P.O. Box 55020 to be stationed in foreign countries. erty is being searched abroad is irrelevant to the Los Angeles, CA 90055 True. determination of the legality of the search. False. True. Make checks payable to Los Angeles Lawyer. 2. Individuals can violate U.S. criminal law with- False. 4. Within six weeks, Los Angeles Lawyer will out setting foot on U.S. soil. 14. A foreign corporation with a U.S. affiliate True. return your test with the correct answers, a can be compelled to produce documents to a rationale for the correct answers, and a False. U.S. grand jury. certificate verifying the MCLE credit you earned 3. The U.S. Supreme Court has held that for- True. through this self-assessment activity. eigners being criminally tried in the United False. 5. For future reference, please retain the MCLE States receive the same Fourth Amendment 15. The Fourth Amendment applies to searches test materials returned to you. protections as U.S. citizens. of U.S. citizens abroad by the local law enforce- True. ment. Answers False. True. Mark your answers to the test by checking the 4. U.S. law enforcement officers cannot conduct False. appropriate boxes below. Each question has searches or seizures when they are not on U.S. 16. Taking notes regarding the details of a only one answer. soil. search is important because a court may deny ■ ■ True. a motion to suppress based on lack of specificity 1. True False False. regarding the facts of the search. 2. ■ True ■ False 5. A U.S. court will suppress the results of a war- True. 3. ■ True ■ False rantless seizure of a foreigner’s property outside False. 4. ■ True ■ False the United States. 17. U.S. law enforcement officers generally ■ ■ True. need to obtain a search warrant before search- 5. True False False. ing a U.S. citizen’s property outside the United 6. ■ True ■ False 6. A U.S. court has jurisdiction to try a for- States. 7. ■ True ■ False eigner kidnapped by U.S. law enforcement and True. 8. ■ True ■ False brought to the United States to stand trial. False. 9. ■ True ■ False True. 18. U.S. magistrates only have the authority to False. issue search warrants for searches that will 10. ■ True ■ False 7. The U.S. Department of Justice believes that take place within the United States. 11. ■ True ■ False U.S. law enforcement does not have the author- True. 12. ■ True ■ False ity to conduct searches and seizures outside the False. 13. ■ True ■ False United States. 19. The “good faith exception” to the Fourth True. Amendment only applies to domestic searches. 14. ■ True ■ False False. True. 15. ■ True ■ False 8. At the scene of a search outside the United False. 16. ■ True ■ False States, there is no legal significance as to which 20. U.S. law enforcement generally cannot 17. ■ True ■ False country’s law enforcement is conducting the execute domestic search warrants at night. ■ ■ search. True. 18. True False True. False. 19. ■ True ■ False False. 20. ■ True ■ False

LOS ANGELES LAWYER / NOVEMBER 2003 37 have found U.S. law enforcement conduct with local law may want to inform U.S. law important in light of case law suggesting the that was sufficient to rise to the level of a joint enforcement of his or her conclusion. This possibility of denying a motion to suppress venture.44 Accordingly, observing the search may negate the invocation of the good faith because of a lack of specificity.56 and gathering facts about its details is criti- exception in opposition to the practitioner’s A limitation to many of these recommen- cally important for defense counsel, lest a motion to suppress. dations is that the practitioner may not be motion to suppress be denied not on the able to arrive at the scene of the search while merits but on the grounds of lack of speci- The Fifth Amendment it is being conducted. Nevertheless, being ficity.45 In addition to Fourth Amendment consid- physically present at the search is the single erations, the practitioner defending an most important thing that a practitioner can Fourth Amendment Mandates extraterritorial search must also consider do to position a client for a motion to sup- If a practitioner can establish that the Fourth the mandates of the Fifth Amendment. Case press. The recommendations may be fol- Amendment applies to an extraterritorial law has held that an extraterritorial search lowed by local counsel or a client represen- search, what are the mandates that result? In that “shocks the conscience” is a violation of tative at the scene of the search with a the domestic realm, the Fourth Amendment the due process clause of the Fifth portable telephone, but they are best ful- generally mandates that U.S. law enforce- Amendment, and the fruits thereof may be filled by the practitioner’s physical presence. ment obtain a warrant before a search, but excluded.51 It is critical to realize that the Accordingly, every effort should be made this is not the case abroad. Extraterritorially, Fifth Amendment, in contrast to the Fourth, for the practitioner to be present at the scene. according to the Ninth Circuit, the Fourth applies to all extraterritorial searches as This effort may well include planning in ad- Amendment requires that the search comply long as the proceeds thereof are being used vance of any search for a qualified, retained, with the law of the country where the search in a subsequent U.S. criminal prosecution. In conflict-free practitioner to be present at the is being executed.46 In reaching this result, the other words, the Fifth Amendment applies scene of the search immediately, even if the court implicitly reasoned that since no regardless of the nationality of the person search takes place at night. ■ American magistrate has the authority to being searched52 and whether the search issue an extraterritorial warrant, the legality was conducted by U.S. or foreign law 1 See, e.g., Ronald J. Sievert, Meeting the Twenty-First of the search must necessarily be governed enforcement officers.53 Century Terrorist Threat within the Scope of Twentieth Century Constitutional Law, 37 HOUS. L. REV. 1421, by local law.47 Accordingly, if the Fourth Searches found to violate the shock-the- 1431 (Winter 2000) [hereinafter Sievert] (discussing the Amendment applies, and if the search vio- conscience standard are extraordinary and search of apartments in Kenya looking for evidence lates local law, then the fruits of the search typically only include cases in which a defen- regarding bin Laden operatives following the 1993 would be suppressed in a U.S. trial. For this dant was physically coerced in order to obtain bombing of the World Trade Center). reason, the defense practitioner must be well evidence.54 Therefore, defense counsel should 2 Stonehill v. United States, 405 F. 2d 738, 743 (9th versed in local law relating to the execution be alert for signs that the behavior of the Cir. 1968) (tax-related documents seized in searches executed in Philippines); United States v. Marzano, of searches and be prepared to ask questions investigating agents, whether U.S. or foreign, 537 F. 2d 257 (7th Cir. 1976) (search and seizure in that are sufficient to learn if local law has has exceeded what is necessary for routine Grand Cayman Islands for information relating to bank been violated. searching and evidence gathering. When any fraud). Fourth Amendment case law in the physical contact is made with the client, care- 3 See, e.g., 49 U.S.C. app. §1472(n)(1) (1982) (airline extraterritorial context became even more ful notes should be taken, and witness infor- hijacking); 18 U.S.C. §2332 (a terrorist act abroad that results in the death of an American citizen); Chua Han elaborate when the Ninth Circuit found that mation gathered, in order to prove the contact Mow v. United States, 730 F. 2d 1308, 1311 (9th Cir. the “good faith exception” to the Fourth occurred. 1984) (conspiracy); United States v. Nippon Paper Amendment48 applies in the extraterritorial The legal landscape for extraterritorial Indus., 109 F. 3d 1 (1st Cir. 1997) (antitrust); see also context. The Ninth Circuit ruled that even if searches is entirely different from that of Schoenbaum v. Firstbrook, 405 F. 2d 200, 208 (2d Cir. an extraterritorial search does not comply domestic searches. At least three rules that 1968) (civil securities). 4 See, e.g., Rupert Goodwins, Mobile Phone Firms Hit by with local law, as long as U.S. law enforcement practitioners take for granted in the domes- Dawn Raids, ZDNET UK NEWS, at http://news.zdnet had a good faith belief—typically based on a tic context may not apply in the extraterrito- .co.uk/story/0,,t269-s2091107,00.html (July 11, 2001). representation by local law enforcement— rial context. Within the United States, the 5 United States v. Verdugo-Urquidez, 494 U.S. 259 that it did, then the search will be held to government generally is prohibited from exe- (1990). comply with the Fourth Amendment, even if, cuting searches at night or conducting 6 Id. at 274-75. 7 Id. as a factual matter, it did not.49 Justice searches that are unlimited in scope. 8 Another question that the practitioner should consider Reinhardt, in dissent, noted that as a result of Additionally, the government is required to is whether the suspected crime that led to the search this rule, the fruits of a search to which the inventory the materials seized.55 In the has extraterritorial application. In order to justify a Fourth Amendment applies and that violates extraterritorial context, on the other hand, the search there must be probable cause to believe that the U.S. law and the applicable foreign law may Fourth Amendment does not always apply, location of the search will contain evidence of a crime. nevertheless come into evidence in a U.S. and when it does it requires nothing more See United States v. Dunn, 946 F. 2d 615, 619 (9th Cir. 1991). It follows logically that a court must have juris- 50 proceeding. than compliance with local law. Thus the diction to prosecute the suspected crime in order to As perverse as this rule may appear, domestic requirements for executing a search have probable cause to justify a search in connection defense counsel may yet maneuver to limit its warrant are unlikely to apply. Unless local with that crime. effect. During the search, a practitioner can law prohibits it, there is no bar to night 9 See the FBI Web site at http://www.fbi.gov/contact explain to agents of U.S. law enforcement searches or searches that are unlimited in /legal/legat.htm. 10 See http://www.usdoj.gov/dea/pubs/briefing/7.htm. that the search does not comply with local law. scope, nor is there a requirement that the 11 See http://www.customs.ustreas.gov/location This statement may defeat the U.S. agents’ searching authority prepare an inventory of /foreign/attache/index.htm. good faith belief that the search complies the materials seized. Accordingly, practition- 12 In 1997, FBI Director Louis Freeh explained, “It is with local law. While there does not appear to ers should prepare an inventory of the items important to note that FBI agents stationed overseas are be any case law on this issue, a practitioner seized in order to have any hope of prevailing not intelligence officers or shadow intelligence officers. They do not engage in international espionage. who learns that a search does not comply on a motion to suppress. This is especially The FBI’s LEGATs are in place to facilitate the inter-

38 LOS ANGELES LAWYER / NOVEMBER 2003

national battle against crime and terrorism.” See Hearing For all your personal and Before the House Comm. on Int’l Relations, 105th Cong. professional real estate needs 1997 (statement of Louis J. Freeh) (Fed. News Serv., (including probate sales) CALL: Oct. 1, 1997). 13 DEA AGENTS MANUAL, subch. 651, at 181 (1988) (restricting DEA activities abroad to actions consis- LILLIAN WYSHAK tent with treaty or other approval by the host country); REALTOR • ATTORNEY • CPA Alvarez-Machain v. United States, 331 F. 3d 604, 626 CERTIFIED TAX SPECIALIST (9th Cir. 2003) (holding that 21 U.S.C. §878, which grants certain law enforcement powers to the DEA, does A broker who speaks not authorize those law enforcement powers extrater- your language ritorially). 14 UNITED STATES ATTORNEY’S MANUAL §§9-13.500 et —Residential and Commercial— seq. (1988) (setting guidelines for obtaining evidence abroad, generally through methods that respect host (310) 273-0223 state’s sovereignty); see also §9-15.610 (“Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States…by means of Alvarez-Machain type renditions without advance approval by the Department of Justice.”). 15 One author described U.S. law enforcement’s policy regarding extraterritorial behavior as follows: “If investigating a case or seizing a fugitive means working the other side of the border then one contacts one’s coun- JudgmentsEnforcedJudgmentsEnforced terparts across the border directly. If that is seen as being either unnecessary or potentially problematic, one goes it alone and ‘to hell with sovereignty.’” ETHAN NADELMAN, COPS ACROSS BORDERS: THE INTERNATION- Law Office of Donald P. Brigham ALIZATION OF U.S. CRIMINAL LAW ENFORCEMENT 181 (1993). 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 16 In the business crimes context, U.S. law enforce- P: 949.206.1661 ment may have a harder time enlisting the consent F: 949.206.9718 and/or aid of local law enforcement. Many govern- [email protected] ments are reluctant to offer assistance in a foreign gov- AV Rated ernment’s investigation of tax evaders within its borders. See id. at 176. Also, U.S. law enforcement is less able to resort to requests for legal assistance through mutual legal assistance treaties, because these treaties typically have dual criminality provisions—i.e., the matter of the request must be a crime in both the requesting and the host nation. 17 United States v. Alvarez-Machain, 504 U.S. 665 (1992). 18 See, e.g., United States v. Caceres, 440 U.S. 741 (1979); Sullivan v. United States, 348 U.S. 170 (1954). 19 See Authority of the Federal Bureau of Investigation JACK TRIMARCO & ASSOCIATES to Override Customary or Other International Law in the Course of Extraterritorial Law Enforcement POLYGRAPH/INVESTIGATIONS, INC. Activities, 13 Op. Off. Legal Counsel 195 (1989), 1989 OLC LEXIS 19 (reversing 1980 OLC opinion on same topic). Further, the Ninth Circuit has suggested that 9454 Wilshire Blvd. Congress has the authority to authorize American agents to unilaterally conduct law enforcement activi- Sixth Floor ties abroad. Alvarez-Machain v. United States, 331 F. 3d 604, 626 (9th Cir. 2003). Beverly Hills, CA 90212 20 See Claus Schellenberg, The Proceedings against Two (310) 247-2637 French Customs Officials in Switzerland for Prohibited Acts in Favor of a Foreign State, Economic Intelligence Service and Violation of Banking Law, 9 INTERNATIONAL BUSINESS LAWYER 139-40 (1981). 1361 Avenida De Aprisa 21 See Authority of the Federal Bureau of Investigation, Camarillo, CA 93010 supra note 19, 13 Op. Off. Legal Counsel 195 (reas- suring U.S. law enforcement that even if their extrater- Jack Trimarco - President (805) 383-8004 ritorial conduct violates local law, their fear that they will be extradited for such violations are not warranted Former Polygraph Unit Chief because the U.S. secretary of state always has discre- Los Angeles F.B.I. (1990-1998) email: [email protected] tion to refuse to extradite). CA. P.I. #20970 22 Patricia Bellia, Chasing Bits across Borders, 2001 U. www.jacktrimarco.com CHI. LEGAL F. 35, 50 & n.52 (listing MLATs in effect in 2001). Former Polygraph Inspection Team Leader 23 Mutual Legal Assistance Cooperation Treaty, Dec. 9, Member Society of Former Special Agents Office of Counter Intelligence 1987, U.S.-Mex., art. 1, entered into force May 3, 1991, U.S. Department of Energy Federal Bureau of Investigation 27 I.L.M. 447 (1988) [hereinafter U.S.-Mex MLAT]. 24 Id. 25 See, e.g., United States v. Zabaneh, 837 F. 2d 1249,

40 LOS ANGELES LAWYER / NOVEMBER 2003 1261 (5th Cir. 1988). 41 Stonehill v. United States, 405 F. 2d 738, 743 (9th Cir. 47 Id. at 1092 n.1.; see also id. at 1102 (Reinhardt, J., dis- 26 See Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. 1968) (“[The] Fourth Amendment could apply to raids senting). Collins, 342 U.S. 519 (1952). by foreign officials only if Federal agents so sufficiently 48 See United States v. Leon, 468 U.S. 897 (1984) 27 U.S.-Mex MLAT, supra note 23, at art. 1(5). participated in the raids so as to convert them into (Reliance on a facially valid search warrant, which is 28 United States v. Verdugo-Urquidez, 494 U.S. 259, joint ventures between the United States and foreign later discovered to be invalid, is in good faith, and the 271 (1994). officials.”); United States v. Peterson, 812 F. 2d 486 fruits of the search will not be excluded based on a vio- 29 Matthews v. Diaz, 426 U.S. 67, 77 (1976); Verdugo, (9th Cir. 1986). lation of the Fourth Amendment.). 494 U.S. at 278 (Kennedy, J., concurring); United 42 Sloane v. United States, 47 F. 2d 889 (10th Cir. 1931); 49 Barona, 56 F. 3d at 1092-93. States v. Tiede, 86 F.R.D. 227 (U.S. Ct. for Berlin, Byers v. United States, 273 U.S. 28, 32 (1927). If foreign 50 Id. at 1099-1100. 1977). authorities are acting only because of a U.S. interest, 51 United States v. Toscanino, 500 F. 2d 267, 280-81 30 Verdugo, 856 F. 2d at 1236 (Wallace, J., dissenting). that may indicate it was a “circuitous and indirect” (2d Cir. 1974); Stonehill v. United States, 405 F. 2d 31 Verdugo, 494 U.S. at 265. search by the United States. Sievert, supra note 1, at 738, 745 (9th Cir. 1968); see also Rochin v. California, 32 Id., 494 U.S. at 283 n.7 (Brennan, J., dissenting); 1431. 342 U.S. 165 (1952). The Ninth Circuit has held that the United States v. Conroy, 589 F. 2d 1258, 1264 (5th Cir. 43 Eric Bentley Jr., Toward an International Fourth fruits of a search that shocks the conscience are 1979); United States v. Rose, 570 F. 2d 1358, 1362 (9th Amendment: Rethinking Searches and Seizures Abroad excluded under the authority of the court’s supervisory Cir. 1978). after Verdugo-Urquidez, 27 VAND. J. TRNASNAT’L L. 329, powers—not the Fifth Amendment per se. Barona, 56 33 Verdugo, 494 U.S. at 259; 856 F. 2d at 1236 (Wallace, 400 nn.297-305 (May 1994) (providing a list of these F. 3d at 1087. J., dissenting). cases). 52 The Fifth Amendment also applies to searches by for- 34 Johnson v. Eisentrager, 339 U.S. 760 (1950). 44 United States v. Peterson, 812 F. 2d 486, 490 (9th Cir. eign governments that shock the conscience and were 35 Jean v. Nelsen, 727 F. 2d 957, 968 (11th Cir. 1984) 1986) (finding U.S. involvement did constitute a joint induced by U.S. law enforcement. Birdsell v. United (When considering the rights to be granted to aliens venture when the DEA was involved daily in translat- States, 346 F. 2d 775, 782 (5th Cir. 1965). subject to deportation, whether the alien acquired any ing and decoding intercepted transmissions, advising 53 Birdsell, 346 F. 2d at 783 n.10 (“We do not mean to domicile within the United States is a factor.). local authorities of their relevance, and treating the say that in a case where federal officials had induced 36 Michael Tricarico, How Sufficient Is the ‘Sufficient contraband as destined for the U.S.); United States v. foreign police to engage in conduct that shocked the Connection Test’ in Granting Fourth Amendment Barona, 56 F. 3d 1087, 1090 (9th Cir. 1995) (finding joint conscience, a federal court might not refuse to allow the Protections to Nonresident Aliens?: United States v. venture where U.S. law enforcement requested search, prosecution to enjoy the fruits of such action.”). Verdugo-Urquidez, 64 ST. JOHN’S L. REV. 629, 634 & n.63 information obtained was immediately forwarded to 54 Toscanino, 500 F. 2d at 275 (torture); Rochin, 342 U.S. (Summer 1990). U.S. law enforcement, and an interpreter was provided at 166 (forced emetic solution into defendant’s stomach 37 G. M. Leasing Corp. v. United States, 429 U.S. 338, by U.S. throughout surveillance); see also Powell v. to induce vomiting). 352-55 (1977). Zuckert, 366 F. 2d 634, 640 (D.C. Cir. 1966). 55 FED. R. CRIM. P. 41(e); Kremen v. United States, 353 38 See International Shoe Co. v. State of Washington, 326 45 Peterson, 812 F. 2d at 494 (finding that “there is U.S. 346 (1957) (A search may violate the Fourth U.S. 310 (1945). much imprecision as to what search took place and what Amendment if it is intolerable in scope.); Warden, Md. 39 See United States v. Bank of Nova Scotia (In re Grand was seized as a result of it” and that “[w]e would be jus- Penitentiary v. Hayden, 387 U.S. 294, 310 (1967) (The Jury Proceedings), 740 F. 2d 817 (11th Cir. 1984). tified in rejecting [the petitioner’s] claim for such lack scope of a search must be strictly tied to and justified 40 United States v. Rose, 570 F. 2d 1358, 1361 (9th Cir. of specificity”). by circumstances.). 1978). 46 Barona, 56 F. 3d at 1087. 56 See supra note 45.

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www.hirson.com • also in San Diego, CA • Phoenix, AZ • Las Vegas, NV • New York, NY • Wilton, CT • Toronto, Canada David Hirson and Mitchell L. Wexler are certiﬁed by the State Bar of California Board of Legal Specialization as specialists in Immigration and Nationality Law. All matters of California state law are provided by active members and/or under the supervision of active members of the California State Bar.

LOS ANGELES LAWYER / NOVEMBER 2003 41 B Y E LIOT G. DISNER AND N OAH E. JUSSIM

S O U NFAIR and Foul

T HE SCANDALS INVOLVING THE UNSCRUPULOUS APPLICATION OF THE PRIVATE ATTORNEY GENERAL PROVISION OF THE U NFAIR C OMPETITION ACT CRY OUT FOR A SENSIBLE SOLUTION

broad consensus has emerged that the proliferation The state attorney general has also charged the Long Beach law of cases brought under California’s Unfair Competition Act, Business firm of Brar & Gamulin with similar abuses. The target of the Brar and Professions Code Section 17200, has not always served the pub- & Gamulin attorneys was nail salons—some of which apparently Alic well.1 Indeed, a bipartisan effort is taking shape to curb this law apply polish from one bottle to many customers.6 and put an end to its ethically dubious enforcement. In one of the most Section 17200 has been the law for many years. Why has it attracted publicized examples of the fallout from questionable Section 17200 law- so much attention lately? One reason is because it is now being suits, the State Bar banished the attorneys in the Trevor Law Group, exploited by law firms, such as the Trevor Law Group, to right a Beverly Hills law firm, from practicing law by placing them on inac- “wrongs”—often apparently minor business infractions—that have tive status for their allegedly egregious and excessive enforcement already been righted by enforcement agencies that issue precise of Section 17200 against numerous auto repair shops.2 The State Bar decrees and publicize them accordingly. took this action pending the resolution of further disciplinary actions The profiteering by some lawyers using Section 17200 to file against the Trevor Law Group attorneys, including disbarment.3 Faced with this prospect, the attorneys decided to voluntarily resign Eliot G. Disner is a partner at the law firm of Manatt, Phelps & from the bar.4 The attorneys also faced a lawsuit by California Attorney Phillips, LLP. He specializes in complex litigation, including unfair com- General Bill Lockyer, who called it a “delicious irony” that his suit petition, antitrust, and related matters. Noah E. Jussim, an associate accused the Trevor Law Group of violating Section 17200 as a result at Manatt, Phelps, focuses his practice on complex litigation, including of the firm’s unfair business practices.5 unfair competition. RON OVERMYER

42 LOS ANGELES LAWYER / NOVEMBER 2003 actions that were needless and redundant claims involving unsupervised settlements So a larger question must be asked: What because public enforcement agencies have also may tempt some attorneys to claim too benefits exists for honest lawyers to propagate already acted has highlighted other ethical large a position for themselves.13 Never- Section 17200 claims? Well, for many years, problems surrounding the Unfair Competition theless, the Rules of Professional Conduct the answer was little, if any. Section 17200 Act. Principally, these ethical problems arise provide that “[a] member shall not enter into claims were, and still are, appended to other because Section 17200 does not have a formal an agreement for, charge or collect an illegal state and federal civil lawsuits that contain standing requirement. (All it seems to require or unconscionable fee.”14 In turn, “[u]ncon- some separate allegation of wrongful con- is that the plaintiff actually be standing.) scionability of a fee shall be determined on the duct. When the use of Section 17200 was con- Thus, a person wholly unaffected by the basis of all the facts and circumstances….”15 fined in this way, little note was paid to it. behavior complained of may sue for an injunc- Arguably, the unsupervised settlement of Indeed, the enforcement of Section 17200 tion as a “private attorney general” on behalf Section 17200 claims is no different than that under those circumstances almost always of the “general public.”7 in other lawsuits—with limited exceptions, assured it of anonymity, as Section 17200 This private attorney general provision such as certified class actions—so there is no would frequently be eclipsed by the rest of the frequently serves California’s consumers greater reason to expect inappropriate attor- case to which an allegation of its violation well. But it also permits attorneys to prosecute ney behavior in private attorney general was attached. That is, when the other claims Section 17200 actions to settlement without actions. However, the unique circumstance of succeeded, the unfair competition claim would traversing the procedural checkpoints that standing that Section 17200 allows for unin- too. Likewise, when the other claims did not protect defendants as well as the public rep- jured plaintiffs—that is, “victims” who have succeed, the unfair competition claim, alone, resented in conventional class actions. For suffered no loss for which a settlement is would seldom be enough to save the case. example, settlement of a private attorney gen- required—means that these plaintiffs may The government also used Section 17200 eral action—absent traditional class certifi- be unusually passive about protecting their occasionally,22 but few private plaintiffs cation—has no claim-preclusive effect on interests from their lawyers. employed it under a single-arrow strategy. other plaintiffs. Thus there is no res judicata The Trevor Law Group, by their excessive In 1976 the California Legislature added for a settling defendant, and certainly no cer- actions ostensibly enforcing the law, took restitution to the injunctive remedy that was tainty of peace.8 advantage of all these aspects of Section 17200 already available under Section 17200. Did Concomitantly, a Section 17200 settlement that make it vulnerable to abuse. According this motivate the present flood of Section involves neither notice to the affected public to the State Bar, the Trevor lawyers invented 17200 cases? Probably not. Since restitution nor a hearing approving the settlement, as a an organization, and then incorporated and is not as broad as damages,23 its availability class action requires.9 This lack of supervision controlled it. The organization was built to does not necessarily expand the opportunities may tempt unscrupulous attorneys to nego- serve as a private attorney general.16 The fee for Section 17200 to be profitably employed— tiate settlements that provide no real benefit agreements between this plaintiff and the if a monetary recovery defines profit. What to the public injured by the business practices Trevor Law Group provided that up to 90 prompts lawyers to bring independent Section complained of in the suit. percent of the Section 17200 settlement mon- 17200 cases then? What tempts some lawyers eys would filter down to the lawyers.17 The set- to bend or break ethical rules when bringing E THICAL V IOLATIONS tlements that were negotiated did not bene- these cases? Is it a desire to do a large pub- Thus lawyers prosecuting private attorney fit the public by including injunctive lic good, a selfless act that will earn the general actions may run afoul of the Rules of relief—and such a remedy may have been lawyers a plaque from a public interest bar Professional Conduct as well as Business and redundant in any event. The Trevor settle- association and nothing else? Professions Code provisions governing attor- ments—obtained mostly from previously sanc- Well, certainly some Section 17200 advo- ney conduct. For example, Rule of Pro- tioned automotive repair shops and restau- cates in some cases have been motivated by fessional Conduct 3-300 forbids an attorney— rants owned by immigrants—were allegedly the prospect of serving the public interest. But absent certain procedures—to “acquire achieved with threats18 and false promises that is not what motivates all lawyers. Most a…pecuniary interest adverse to a client….” that settlement of these nonclass actions lawyers want to do some good, but certainly In the context of Section 17200, Rule 3-300 would bar further claims.19 at all times they want to be paid for their raises the question of the identity of the Web sites maintained by the Bureau of efforts. This is not an unfair objective. client.10 Although the named plaintiff is clearly Automotive Repair and the Los Angeles Lawyers, like everyone else, have to eat. a client, what about the members of the gen- County Department of Health Services pro- So how do Section 17200 lawyers get paid? eral public who are allegedly represented? vided the Trevor Law Group with the fodder As it happens, possibilities for remuneration While a standard class action’s “adequacy of for its litigious partners.20 Indeed, the store- do not appear in the section itself. It may sur- representation” requirement and courthouse of potential Section 17200 defendants prise some to know that Section 17200, while approved settlement procedures protect is nicely arranged by various enforcement not toothless in its remedies, does have one absent plaintiffs, no such mechanism exists agencies on their Web sites for lawyers like notable omission from analogous antitrust for Section 17200 private attorney general the Trevor Law Group to pluck like grapes, and similar statutes: It does not contain a pro- actions.11 Moreover, an attorney who initi- then crush into wines of great value to them- vision for attorney’s fees. Section 17200 ates a Section 17200 action that is without selves. Presumably, however, these agencies lawyers rely on the so-called private attorney public benefit but is potentially for the private, are already taking the steps necessary to general attorney’s fees statute, Code of Civil pecuniary benefit of the lawyer may violate bring businesses up to code and to protect the Procedure Section 1021.5, which provides, the Business and Professions Code’s directive public. This kind of double jeopardy—public in pertinent part, that: “[n]ot to encourage either the commence- enforcement in tandem with private Section Upon motion, a court may award attor- ment or the continuance of an action or pro- 17200 actions—has led to cries of unfairness neys’ fees to a successful party against ceeding from any corrupt motive of passion and overreaching. Legislative efforts abound one or more opposing parties in any or interest.”12 to modify this law, but none have succeeded action which has resulted in the Still, the aspect of private attorney general to date.21 enforcement of an important right

44 LOS ANGELES LAWYER / NOVEMBER 2003 affecting the public interest if: (a) a law—which describes the pre-Trevor Law Courts have noted that the so-called sub- significant benefit, whether pecuniary Group interplay of ethical rules and Section stantial benefits doctrine underlies Section or nonpecuniary, has been conferred 17200 actions—much more readily than in the 1021.5.30 This doctrine only operates when on the general public or a large class black-and-white zone. one person incurs the legal costs to render a of persons, (b) the necessity and finan- Thus, a clear set of rules, which admittedly tangible benefit to a defined group—such as cial burden of private enforcement, or will not place affirmative tools in the hands of when one tenant in common bears the of enforcement by one public entity victimized Section 17200 defendants, still expense of, say, saving an apartment building against another public entity, are such should rein in the lawyers who might other- from condemnation.31 In that case, it is fair as to make the award appropriate, and wise bring unfair cases under the statute. under the substantial benefits doctrine that (c) such fees should not in the interest The Trevor Law Group, which collected set- the other tenants in common help bear some of justice be paid out of the recovery, tlements from many so-called violators, cer- responsibility for the expense. Corres- if any. tainly threatened their opponents not just pondingly, under the private attorney gen- With this language alone, Section 1021.5 with claims for restitution but also attorney’s eral attorney’s fees statute, a plaintiff must is far stricter in its terms than Section 17200. fees—massive ones no doubt—if settlements prove that it brought some benefit to the pub- To justify any award of attorney’s fees, the were not forthcoming. Even though the defen- lic or even a large class of people. Thus, if an benefit conferred on the public must be “important” and “significant.”24 This is no small burden to overcome. Indeed, the law is well settled that not just any public benefit is enough to justify fees.25

A POSSIBLE S OLUTION The cases interpreting Section 1021.5 reveal that this law is a thicket through which few attorneys emerge with cash in hand. It is now time to invert Section 17200 cases to purge those brought with little, if any, merit. Declaratory relief actions brought to establish that Section 17200 claimants have no entitlement to attorney’s fees, even if those Section 17200 claims succeed, should curb the improvident enforcement of this statute. The state legislature, too, could revisit dants may already have made restitution, attorney brings a Section 17200 action to fur- Sections 1021.5 and 17200 to address cases often enough they clearly thought that a few ther his or her client’s self-interest, or to repli- brought exclusively under Section 17200. thousand dollars paid to the plaintiffs in a cate relief benefiting the public that the gov- Legislative revisions to Section 17200 could quick settlement seemed worth it compared ernment had previously obtained, the lawyer require a court to first determine that, if there to the possible fees award they could face if would be out of luck in obtaining attorney’s is a finding of liability, the resulting benefit will they allowed the suit to proceed. One suspects fees. be sufficient to justify the possible award of that if the Trevor Group attorneys had explic- Crucial to obtaining fees as a private attor- attorney’s fees—unless, of course, the plain- itly informed the defendants in the complaints ney general, of course, is that the claimant tiff disclaims ab initio any entitlement to fees. they filed that the plaintiffs did not seek attor- first be “a successful party.”32 This is the one A model for this process can be seen in the ney’s fees, their ardor for prosecuting the hurdle a prosecutor of a Section 17200 claim manner in which courts now vet certain puni- suits would have been dampened, to say the can often surmount. But that is not enough to tive damages claims in medical malpractice least. garner a fee award. cases.26 The second required element for the This rule would be appropriately precise INTERPRETING SECTION 1021.5 recovery of attorney’s fees under Section and clear so that any ethical and legal abuses Section 1021.5 has been quietly available for 1021.5 is that “the necessity and financial bur- surrounding the enforcement of Section years. However, to recover fees under this den of private enforcement…are such as to 17200 should substantially diminish. The real- statute, a plaintiff must first prevail on some make the award appropriate.”33 Thus, no one ity is that lawyers, with very rare exceptions, cause of action. Since most of the abuse under may recover attorney’s fees unless “the cost obey the law. The obstacle that must be over- Section 17200 involves settlements, Section of prosecuting the action in terms of time come in these circumstances is that lawyers, 1021.5 is never put into play. It is time to bring and effort required by plaintiff’s attorneys like everyone else, need to know what the law Section 1021.5 out of the woodwork for substantially outweighed the plaintiffs’ indi- is. A clear rule of “disclaim or obtain” will Section 17200 actions, because Section 1021.5 vidual interest in the rights vindicated by the certainly be obeyed more readily than an provides recovery to a plaintiff that has litigation.”34 unwritten, ex post facto, fuzzy standard based incurred personal expenses in litigation only Numerous examples abound of decisions upon the Business and Professions Code’s when it outweighs any personal pecuniary in which fees have not been awarded because ban on simple moral turpitude, which pro- or other advantage sought.28 Moreover, the the particular plaintiff’s interest in the case hibits lawsuits filed with a corrupt motive or statute directs its benefits to those whose was in excess of the required level. For exam- interest.27 Until recently, this standard efforts actually expand existing law.29 It is ple, in Luck v. Southern Pacific Transportation appeared to ignore the overly aggressive questionable whether the plethora of Section Company, a former employee who success- enforcement of Section 17200. Some lawyers 17200 cases that have been initiated recently fully sued her former employer for wrongful are content to operate in the gray area of the are all so public-spirited. discharge, which arose out of the employ-

LOS ANGELES LAWYER / NOVEMBER 2003 45 Statement of Ownership, Management and Circulation UNITED STATES POSTAL SERVICE (Required by 39 USC 3685) ee’s refusal to provide a urine sample for a means that the strength or importance to drug test, was not entitled to attorney’s fees, society of the right at issue must be realisti- 1. Publication Title: Los Angeles Lawyer despite the argument that the action resulted cally assessed.45 Simply enforcing rights 2. Publication Number: 01622900 3. Filing Date: October 1, 2003 in the vindication of an important public right. already recognized, such as by an enforce- 4. Issue Frequency: Monthly (Except combined The former employee failed to establish that ment agency of the government that has July/August) 5. Number of Issues Published Annually: 11 legal fees she incurred placed a burden on her already taken action regarding the rights, 6. Annual Subscription Price: $14.00 member; that was out of proportion to her individual should per se disentitle a private party to $28.00 nonmember stake in the matter.35 Those that might choose fees. Even if a “plaintiff’s action did not estab- 7. Complete Mailing Address of Known Office of Publication: Los Angeles Lawyer, 261 S. Figueroa to apply Section 1021.5 to Section 17200 cases lish new law, but simply recognized consti- Street, Suite 300, Los Angeles, CA 90012-2503 will have at least as much difficulty in mak- tutional requirements,” no award of fees is 8. Complete Mailing Address of Headquarters or ing their case as the former employee did in proper. The mere enforcement of a preexist- General Business Office of Publisher: Los Angeles Lawyer, 261 S. Figueroa Street, Suite Luck. ing right does not entitle a party to attorney’s 300, Los Angeles, CA 90012-2503 If the primary effect of a lawsuit is to fees.46 9. Full Names and Complete Mailing Addresses of Braude Publisher, Editor, and Managing Editor advance or vindicate a plaintiff’s personal or The leading case on this point, v. Publisher: Samuel L. Lipsman, Los Angeles economic interests, or perhaps the personal Automobile Club of Southern California, specif- Lawyer, 261 S. Figueroa Street, Suite 300, Los interests of the lawyer, an award of fees under ically limits the application of the substantial Angeles, CA 90012-2503. Editor: Samuel L. Lipsman, Los Angeles Lawyer, 261 S. Figueroa the private attorney general attorney’s fees benefits doctrine, based on the principle that: Street, Suite 300, Los Angeles, CA 90012-2503. statute is also improper, even if some inci- The Court’s jurisdiction over the sub- Managing Editor: Samuel L. Lipsman, Los dental public benefit is derived.36 In Advanced ject matter of the suit makes possible Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503. Micro Devices, Inc. v. National Semiconductor an award that will operate to spread the Contact Person: Samuel L. Lipsman. Corporation, an action by a polluter seeking award proportionally among the ben- Telephone: (213) 896-6503 10. Owner: Los Angeles County Bar Association, the recovery of cleanup costs from other pol- eficiaries….When the benefits be- 261 S. Figueroa Street, Suite 300, Los Angeles, luters did not justify an award of attorney’s stowed on others become less tangible CA 90012-2503 fees under Section 1021.5, even though the and more ephemeral in nature, how- 11. Known Bondholders, Mortgagees, and Other Security Holders Ownlng or Holding 1 Percent cleanup conferred benefits on the public, ever, the equity in charging involuntary or More of Total Amount of Bonds, Mortgages, because the plaintiff had a strong personal beneficiaries with the costs of obtain- or Other Securities. None and financial incentive to bring suit in order ing such benefits on [a substantial ben- 12. Tax Status. The purpose, function, and nonprofit status of this organization and the exempt status to recover the amounts it had expended clean- efits] theory becomes more problem- for federal income tax purposes: Has Not ing the contaminated site.37 atical.47 Changed During Preceding 12 Months. N/A 13. Publication Name: Los Angeles Lawyer. The third element required to permit an Another case in which the substantial ben- 14. Issue Date for Circulation Data Below: September award of fees under Section 1021.5 is that efits doctrine was held to be inapplicable is 15. Extent and nature of circulation: (Column 1: the prevailing party has enforced “an impor- Save El Toro Association v. Days. In this case, Average No. Copies Each Issue During Preced- 38 ing 12 months. Column 2: Number Copies of tant right affecting the public interest.” The the plaintiff successfully invalidated an assess- Single Issue Nearest to Filing Date.) underlying objective of the private attorney ment district and a subdivision on the ground Column 1 Column 2 general attorney’s fees statute is to encourage the city of Morgan Hill had not adopted an a. Total Number of Copies (Net Press Run) 23,075 24,480 suits effectuating a strong public policy, and open space plan pursuant to the Open Space b. Paid and/or Requested this objective is accomplished by awarding Lands Act. The court found that the sub- Circulation (1) Paid/Requested Outside-County attorney’s fees to those who successfully stantial benefits doctrine did not apply Mail Subscriptions stated on bring these type of suits:39 “The benefit must because the action amounted to a simple Form 3541 21,298 21,952 inure primarily to the public.”40 Section 17200 effectuation of a statutory policy.48 (2) Paid In-County Mail Subscriptions stated on cases brought after the government has The decision in Save El Toro makes clear Form 3541 0 0 already remedied the putative problem, or that the substantial benefits doctrine “rests on (3) Sales through Dealers and when there is no demonstrable public injury the principle that those who have been Carriers, Street Vendors, and Counter Sales) 0 0 in the first place, would certainly not be can- ‘unjustly enriched’ at another’s expense (4) Other Classes Mailed Through didates for the recovery of attorney’s fees.41 should under some circumstances bear their the USPS 135 135 c. Total Paid and/or Requested Indeed, courts have held that “the word fair share of the costs entailed in producing Circulation 21,433 21,952 ‘enforcement’ in section 1021.5 necessarily the benefits they have obtained.”49 Indeed, d. Free Distribution by Mail 197 203 requires that the action compel the result in under the substantial benefits doctrine: e. Free Distribution Outside 42 the Mail 0 0 some fashion.” [W]hile the benefit can be either pecu- f. Total Free Distribution 197 203 The fourth requirement for the recovery niary or non-pecuniary, it must be g. Total Distribution 21,630 22,155 of fees under the private attorney general actual and concrete and not conceptual h. Copies Not Distributed 1,445 2,325 i. Total 23,075 24,480 attorney’s fees statute is whether “a significant or doctrinal and not merely the effec- j. Percent Paid and/or benefit…has been conferred on the general tuation of a constitutional or statutory Requested Circulation 99% 99% public or a large class of persons.”43 Section policy.50 16. This Statement of Ownership will be printed in 1021.5 “directs the judiciary to exercise judg- Too often recently, the enforcement of the November 2003 issue of this publication. 17. Signature and Title of Editor, Publisher, Business ment in attempting to ascertain the ‘strength’ Section 17200 has created benefits that are Manager, or Owner: (Samuel L. Lipsman, or ‘societal importance’ of the right in- conceptual or doctrinal, at most, for a class as Publisher and Editor. Date: 9/30/03. I certify that volved.”44 It is most unlikely that either the a whole. Those benefits are seldom tangible. all information furnished on this form is true and complete. I understand that anyone who furnishes Trevor Law Group’s suits or Brar & Gamulin’s Section 1021.5 and the substantial benefits false or misleading information on this form or who recent Section 17200 filings would pass this doctrine should not then be stretched to pro- omits material or information requested on the form test. vide a basis for an award of attorney’s fees to may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions The precondition of an “important” right, a solitary or nearly solitary supplicant who, for (including multiple damages and civil penalties). for purposes of an attorney’s fees award, example, obtains a solitary benefit from a

46 LOS ANGELES LAWYER / NOVEMBER 2003 solitary auto repair shop or nail salon. Thus, 3d 994, 1010-12 (1986). Corp., 38 F. Supp. 2d 802, 815 (N.D. Cal. 1999). 26 CODE CIV. PROC. §425.13. 38 CODE CIV. PROC. §1021.5. the private attorney general attorney’s fees 27 BUS. & PROF. CODE §§6068(g), 6106. 39 Braude, 178 Cal. App. 3d at 1011. statute, as it is now interpreted and if timely 28 Braude, 178 Cal. App. 3d at 1012; Punsly v. Ho, 105 40 Id. (emphasis added). applied, can do much to stem the tide of reck- Cal. App. 4th 102, 118 (2003). 41 See id. at 1010-11. less Section 17200 filings. ■ 29 Schmier v. Supreme Court of Cal., 96 Cal. App. 4th 42 Stanley v. California State Lottery Comm’n, 2003 WL 873, 879 (2002). 22211504(Cal. Ct. App. 3d Dist, Sept. 2003). 30 Id. 43 CODE CIV. PROC. §1021.5. 1 See Bruce M. Brusavich (President, Consumer 31 Braude, 178 Cal. App. 3d at 1005; Cziraki v. Thunder 44 Braude, 178 Cal. App. 3d at 1011 (citation omitted). Attorneys of California), A Good Law Misappropriated, Cats, Inc., 3 Cal. Rptr. 3d 419, 423 (2003). 45 Friends of the Trails v. Blasius, 78 Cal. App. 4th 810, CAL. BAR J. (Apr. 2003); John H. Sullivan (President, 32 CODE CIV. PROC. §1021.5; Nestande v. Watson, 111 Cal. 833 (2000). Civil Justice Association of California), A Flawed Law App. 4th 232, 239 (2003). 46 Schmier v. Supreme Court of Cal., 96 Cal. App. 4th That Needs Fixing, CAL. BAR J. (Apr. 2003). 33 CODE CIV. PROC. §1021.5(b). 873, 879-80 (2002). 2 In the Matter of Damian S. Trevor, Allan C. 34 Braude, 178 Cal. App. 3d at 1012 (emphasis added). 47 Braude, 178 Cal. App. 3d at 1006-07. Hendrickson, and Shane Chang Han, No. 03-TE-00998- 35 Luck v. Southern Pac. Transp. Co., 218 Cal. App. 3d 48 Save El Toro Ass’n v. Days, 98 Cal. App. 3d 544, 551 RAH (Cal. State Bar Ct., May 21, 2003). See Terry 1, 30-31 (1990). (1979). Carter, Sanctions May Rain Down after Flood of 36 See Punsly v. Ho, 105 Cal. App. 4th 102, 118 (2003). 49 Id. at 548. Lawsuits, 2 No. 12 ABA J. E-REPORT 4 (Mar. 28, 2003), 37 Advanced Micro Devices v. National Semiconductor 50 Braude, 178 Cal. App. 3d at 1006. available at www.westlaw.com. 3 In the Matter of Damian S. Trevor, Allan C. Hendrickson, and Shane Chang Han, Notice of Disciplinary Charges, Case Nos. 02-O-13107, 02-O- 13108, 02-O-13416 (Cal. State Bar Ct., June 4, 2003). See Nancy McCarthy, Trevor Group Lawyers Face Disbarment, CAL. BAR J., July 2003. PACIFIC CREST BANK WANTS TO BE 4 Lisa Munoz, Trevor Law Group Resign Voluntarily, ORANGE COUNTY REGISTER, July 11, 2003, available at YOUR BUSINESS BANKING PARTNER http://www.ocyr.org/register6-11.htm. 5 Press Release, Office of the Attorney General, State of California, Attorney General Lockyer Files “17200” Consumer Protection Lawsuit against Beverly Hills Law Firm (Feb. 26, 2003), available at http: As your local bank, Pacific Crest //caag.state.ca.us/newsalerts/2003/03-021.htm; Dan Walters, In Ironic Twist, Law Firm Finds Itself on Other provides quality service— Side of Suit, SACRAMENTO BEE, Mar. 3, 2003, available personalized to fit the special at http://www.sacbee.com. 6 McCarthy, supra note 3; Larry Rand, California requirements of law professionals. Attorney General Sues Law Firm for Sham Suits against Nail Salons, DAILY PRESS, July 10, 2003, available at http://www.vvdailypress.com. 7 BUS. & PROF. CODE §17204. Since 1974, Pacific Crest Bank 8 Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal. 4th 116, 137- has been putting clients first 38 (2000). 9 WILLIAM L. STERN, BUS. & PROF. C. §17200 PRACTICE by delivering the customized §7:68, at 7-19 (The Rutter Group 2003). products and service that 10 James M. Wagstaffe, Ethical Implications of 17200 Claims, 678 PLI/LIT 371, 377-79 (2002). businesses, entrepreneurs, and 11 The California Supreme Court, however, has stated depositors expect. With a that a trial court may decline to entertain such representative suits if the plaintiff is not “competent,” or if the comfortable “sit-down” suit is shown to carry “a potential for harm” or is not atmosphere, we consistently exceed our clients’ expectations with brought “for the benefit of injured parties.” Kraus v. Trinity Mgmt. Servs., 23 Cal. 4th 116, 138. See discus- a winning combination of technology and personalized service. sion in Wagstaffe, supra note 10. As “Your Financial Services Company,” our goal is to serve you, 12 BUS. & PROF. CODE §6068(g). 13 Wagstaffe, supra note 10, at 381. making your business and personal banking faster, easier, and 14 CAL. RULES OF PROF’L CONDUCT R. 4-200(A). more convenient. 15 CAL. RULES OF PROF’L CONDUCT R. 4-200(B). 16 In the Matter of Damian S. Trevor, Allan C. Hendrickson, and Shane Chang Han, Notice of Call us today! Disciplinary Charges, Case Nos. 02-O-13107, 02-O- 13108, 02-O-13416 (Cal. State Bar Ct., June 4, 2003). 17656 Ventura Blvd. 17 Id. Encino, CA 91316 800-631-1572 18 McCarthy, supra note 3. 9320 Wilshire Blvd., Suite 105 19 In the Matter of Damian S. Trevor, Allan C. Beverly Hills, CA 90212 800-889-1572 Hendrickson, and Shane Chang Han, Notice of Disciplinary Charges, Case Nos. 02-O-13107, 02-O- www.pacificcrestbank.com 13108, 02-O-13416. 20 Id. 21 Sullivan, supra note 1. 22 Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal. 4th 116, 130 (2000). 23 Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 173 (2000). Member 24 CODE CIV. PROC. §1021.5. FDIC 25 See Braude v. Automobile Club of S. Cal., 178 Cal. App.

LOS ANGELES LAWYER / NOVEMBER 2003 47 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

The Myths of Electronic Discovery By David Nolte

Many lawyers are missing opportunities in their before, but times have changed. Here’s why: nent’s production, there is no good reason not investigations and litigations because they believe Paper discovery encompasses only what remains. to get the electronic discovery. In fact, electronic certain myths regarding computers. Like all good Electronic discovery includes what used to exist. data should be easier to obtain, for the follow- myths, they contain a shred of truth, or at least Most organizations will make a backup of all data ing reasons: they once did. Nevertheless, knowing what is at least once a day and retain these backups • Electronic data is cataloged in formal systems wrong with these myths is one of the best ways for at least a month. Because storage is so cheap, that are available to multiple persons within an of getting a great result for your client. many data processing personnel will keep these enterprise. Because of periodic backups, multi- The first myth is that electronic discovery backups for even longer. Simply put, your oppo- ple copies exist. and analysis are only affordable in big cases. nent’s computers are keeping what the rest of • There is little burden associated with elec- Not too long ago, inflexible mainframe systems the organization is throwing away. By asking tronic discovery. The equivalent of entire rooms held significant computer information. Although for electronic records and backup, you will get of paper can be copied in a matter of minutes at personal computers were available, their oper- damaging e-mails and prior versions of key doc- practically no cost. ating systems were relatively simple and storage uments. You will rarely obtain these items with • The primary objection to electronic data is rel- was expensive. As a result, cost considerations only conventional discovery. evance. However, the same tools that allow one limited data retention. In addition, because some business systems to search and sort records are regularly used to Today, on the other hand, practically every- are designed to be paperless, certain records no identify relevant records. one has a computer in his or her office (and longer naturally occur in paper form. If you insist Another myth is that when conducting an another at home) that is more powerful than on obtaining complete paper discovery of a sys- internal investigation, attorneys can get what what NASA used to put people on the moon. tem that was never intended to be printed, you they need from their client’s technology depart- Disk storage is so cheap that no one worries will get a response that is not as helpful. ment. Unless specific steps are taken to preserve about it. It should not surprise you that the cost Specifically, you will likely get objections, an evidence before the investigation begins, you worries that you previously faced with electronic incomplete production, or a data dump that is will have interesting accusations but no evidence. discovery have diminished. difficult to review. This occurs because simple actions, such as turn- Now, even cases of small and moderate size Certain types of wrongful conduct (for exam- ing on a computer and opening files, will record can require electronic discovery. When you are ple, thefts of trade secrets) are conducted pri- that someone other than the suspect accessed— representing the less-advantaged party, you need marily with computers. When this occurs, the only and thus may have altered—the information. technology to level the playing field. This devel- way of substantiating the wrongful conduct is In addition, much of the evidence is not con- opment is a result of how newer computers are through a forensic inspection of computer evi- tained in regular files but is instead stored in capable of searching massive amounts of data to dence. Reliance on paper records in this arena will logs, registries, temporary files, and unallocated highlight the smoking gun. While it is true that rarely be successful. storage that can be retrieved only with special- a computer will never replace a thinking human, This raises an important change that most ized training or software. Unless your client’s the computer can search and sort data in min- lawyers need to make in their discovery practices. data processing professionals have such training utes that would take a human days to review. In You should issue a document preservation letter and tools, the assistance you will be receiving is a small case, you cannot afford to leave this as soon as you know a dispute exists. Then, incomplete. weapon behind. instead of starting with only form and contention Quality work involving electronic discovery or The second myth is expressed in the state- interrogatories, issue a subpoena that seeks all computer forensics often requires outside assis- ment: “We get what we need through conven- relevant computer data, including backups. If tance. When obtaining outside assistance, get a tional discovery.” This also may have been true you wait, valuable information will be discarded budget based on a per-computer or per-task in the normal course of business. amount. Absent unusual circumstances, sub- David Nolte is a principal at Fulcrum Financial A third myth is contained in another state- stantial computer forensic work on a single com- Inquiry LLP with over 25 years of experience ment: “The other side will never give us this puter should cost no more than roughly $2,000. performing forensic accounting, auditing, busi- information.” The rules of discovery are not When performing electronic discovery, once ness appraisals, and related financial consult- materially different for electronic versus paper dis- readable and consistent data is obtained, searching. He regularly serves as an expert witness. covery. If you are willing to insist on your oppo- able databases should cost a similar amount.

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50 LOS ANGELES LAWYER / NOVEMBER 2003 WHITE, ZUCKERMAN, WARSAVSKY LUNA & WOLF

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■ Business Litigation ■ Marital Dissolution Barbara Luna, PhD, CPA, CFE, ASA, Paul White, CPA, CVA CVA, ABV, CGREA, CCREA, CREA Jack Zuckerman, JD, CPA, ABV Andrew Hunt, MBA, CPA, ASA Fred Warsavsky, MS, CPA, CVA, ABV Cindy Holdorff, CPA Andrew Hunt, MBA, CPA, ASA David Turner, CPA, ABV Jack White, CPA, ABV Dean Atkinson, CPA, CFE, ABV Pamela Wax-Semus Michael Rosen, PhD, CPA, ABV Dean Atkinson, CPA, CFE, ABV John Canning, MBA David Semus, CPA Emily Reich, CPA ■ Valuation Barbara Luna, PhD, CPA, CFE, ASA, ■ Personal Injury/Employment CVA, ABV, CGREA, CCREA, CREA Litigation Fred Warsavsky, MS, CPA, CCVA, ABV Barbara Luna, PhD, CPA, CFE, ASA, Jack Zuckerman, JD, CPA, ABV CVA, ABV, CGREA, CCREA, CREA Andrew Hunt, MBA, CPA, ASA Venita McMorris, MA David Turner, CPA, ABV Andrew Hunt, MBA, CPA, ASA Dean Atkinson, CPA, CFE, ABV Michael Rosen, PhD, CPA, ABV Michael Rosen, PhD, CPA, ABV ■ Fraud Investigation ■ Tax Barbara Luna, PhD, CPA, CFE, ASA, William Wolf, MBA, CPA CVA, ABV, CGREA, CCREA, CREA Greg Mogab, MBT, CPA, PFS Cindy Holdorff, CPA Ron Thompson, CPA Emily Reich, CPA

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14455 Ventura Boulevard Suite 300, Sherman Oaks, California 91423 Phone (818) 981-4226 or (310) 276-7831 Fax (818) 981-4278 333 City Boulevard West 17th Floor, Orange, CA 92868 Phone (714) 939-1781 Fax (714) 938-3874 GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 552-0960, fax (310) 557- 3468, e-mail: [email protected]. Web site: www .gursey.com. Contact Roseanna Purzycki or Rory Burnett. Forensic accounting and litigation support services in the areas of marital dissolution, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and ¥ Real Estate cost-proﬁt assessments, insurance claims, court accounting, tracing, and entertainment industry litiga- ¥ Business tion. See display ad on page 55.

¥ Machinery & Equipment HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Web site: www .hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost proﬁts analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists Ben F. Tunnell, III, Chairman in courtroom presentations.

KAPLAN ABRAHAM BURKERT & COMPANY “Litigation and appraisal experience Forensic valuation consultants. 5950 Canoga Avenue, Suite 200, Woodland Hills, CA 91367, (818) nationally and internationally 888-0066, fax (818) 888-8860. Contact Michael G. since 1974” Kaplan, CPA, CVA, CFFA. Expert witness services and preparation in matters involving business disputes, goodwill, economic damages, loss of earn- 605 W. Olympic Blvd., Suite 820 ¥ Los Angeles, CA 90015 ings and proﬁts, fraud and embezzlement, forensic tel: (213) 532-3800 ¥ fax: (213) 532-3807 accounting, business valuation, marital dissolution, e-mail: [email protected] ¥ www.btiappraisal.com legal and accountants’ malpractice, wrongful termination, intellectual property, and bankruptcy. Mem- ber of Voir Dire Partners, LLC. Affiliated offices nationwide.

NANCY A. KEARSON, CPA, ABV, CVA, DABFA 1801 Century Park East, Suite 2400, Los Angeles, CA 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Contact Nancy Kearson. Specialties: solid, cost-effective, timely expert witness and consultation services, investigative forensic accounting, asset tracing, loss of earn- ◆ CONSTRUCTION CONSULTING/EXPERT WITNESS ings calculations, partnership and shareholder dis- ◆ putes, business valuation, and professional practice CONSTRUCTION DEFECT FAILURE ANALYSIS appraisal. Director, California Society of CPAs-LA. Immediate Past Officer, Family Law Section, Former ◆ CONTRACT ISSUE ANALYSIS - LIABILITY ALLOCATION Chair, Family Law Conference. Licenses: certified ◆ BUILDING SAFETY EVALUATION & CODE COMPLIANCE public accountants, accredited in business valuation, certified valuation analyst, diplomate of the ◆ ADA INVESTIGATION AND COMPLIANCE American Board of Forensic Accountants, and certified fraud examiner. ◆ DESTRUCTIVE TESTING & INSPECTION ◆ KRYCLER, ERVIN, TAUBMAN, & WALHEIM COST ESTIMATES 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA 91403, (818) 995-1040, fax (818) 995- ◆ CPM SCHEDULING/DELAY CLAIMS 4124. Web site: [email protected]. Contact ◆ CONSTRUCTION ACCIDENTS/PERSONAL INJURY Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional practice valuations. Accounting for litigations, including damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman and Walheim is a full-service accounting firm.

DIANA G. LESGART, CPA, CFE, AN ACCOUNTANCY CORP. 9520 Topanga Canyon Blvd., Suite 104, Chatsworth, CA 91311, (818) 886-7140, fax (818) 886-7146, e-mail: [email protected]. Contact Diana G. Lesgart, CPA, CFE. Specialized accounting and litigation support services in the areas of family law litigation, tracing of assets, pension plan tracing, foren-

52 LOS ANGELES LAWYER / NOVEMBER 2003 sic accounting, business valuation, goodwill, expert testimony, commercial litigation, fraud investigations, DAVID OSTROVE ■ ATTORNEY–CPA economic damages, and real estate litigation. Over 19 years’ accounting experience with 15 years’ litigation support specialization. Expert is fully English/ • Expert Witness — 43 years Spanish bilingual. • Lawyer/Accountant Malpractice • Forensic Accounting LEWIS, JOFFE & CO, LLP 10880 Wilshire Boulevard, Suite 520, Los Angeles, • Tax Matters CA 90024, (310) 475-5676, fax (310) 475-5268. • Business Valuation Contact Brian Lewis, CPA, CVA. Forensic account- • Value of Services ing, business valuations, cash spendable reports, estate, and trust and income tax services. • Computation of Damages • Mediator, Arbitrator MIOD AND COMPANY, LLP CPAS 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax 323/939-3400 [email protected] (818) 898-9922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779- 0960, e-mail: [email protected]. Visit our Web site at www.miodcpa.com. Contact Donald John Miod, CPA, ABV, CVA, CBA. More than 30 years’ “Mr. Truck” experience in litigation support, including computation of income available for support, tracing, busi- ACCIDENT ness valuations, fraud investigations, earnings loss calculations, and income tax matters. Our firm is very INVESTIGATION and RECONSTRUCTION computer-oriented, involving the use of computer ✔ Court Qualified Expert Witness Regarding graphics. We are members of the Institute of Busi- ness Appraisers, the International Society of CPAs Car vs Car, Car vs Bicycle, Truck vs Car Cases (founding member), the American Institute of CPAs, ✔ Low Speed Accident Analysis and California Society of CPAs. See display ad on ✔ Trucking Industry Safety and Driver Training Issues page 50. ✔ Power Point Court Presentations William M. Jones 800 337 4994 DAVID OSTROVE, ATTORNEY-CPA 5757 Wilshire Boulevard, Suite 535, Los Angeles, CA P. O. Box 398 925 625 4994 90036-3600, (323) 939-3400, fax (323) 939-3500, Brentwood CA 94513-0398 Pager 510 840 4627 e-mail: [email protected]. Web site: www [email protected] www.mrtruckar.com Fax 925 625 4995 .lawyers.com/ok&olaw. Contact David Ostrove. Ac- counting malpractice (defense/plaintiff). Experts in legal malpractice (defense/plaintiff), auditor’s malpractice (defense/plaintiff), business valuations, breach of fiduciary duty, insurance bad faith cases, tax matters, fraudulent conveyances, leveraged buy- out, analysis of financial statements, estate planning, civil litigation, tax litigation, probate litigation, criminal tax litigation, and business and real estate transactions. See display ad on page 53.

SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- mier provider of business valuation and valuation advisory services, specializing in litigation support and expert witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, Confidence At The Courthouse. and market research. Extensive experience in expert witness testimony, pretrial preparation, and settle- Business litigation is increasingly complex. That is why we believe valuation ment negotiations. See display ad on page 61. issues must be addressed with the same meticulous care as legal issues. Analysis must be clear. Opinions must be SCHULZE HAYNES & CO. defensible. Expert testimony must be thorough and 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, articulate. HML has extensive trial experience and can e-mail: [email protected]. Web site: www provide legal counsel with a powerful resource for expert .schulzehaynes.com. Contact Karl J Schulze or testimony and litigation support. Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, For More Information Call 213-617-7775 business and real estate valuations, construction Or visit us on the web at www.hmlinc.com claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS organizations, and have experience across a broad spectrum of industries and business issues. De-

LOS ANGELES LAWYER / NOVEMBER 2003 53 grees/licenses: CPA; CVA; CFE; CMA; Certified Ap- Angeles, CA 90015, 1829 Highgrove Drive, SANLI PASTORE & HILL, INC. praiser, PE; RE Broker. Escondido, CA 92027, (866) 256-9300, fax (213) 1990 South Bundy Drive, Suite 800, Los Angeles, CA 532-3807, e-mail: [email protected]. Web site: 90025, (310) 571-3400, fax (310) 571-3420, Web site WHITE, ZUCKERMAN, WARSAVSKY, www.btiappraisal.com. Contact Ben F. Tunnell, III, address: www.sphvalue.com. Contact Nevin Sanli LUNA & WOLF chairman. We provide litigation and appraisal ser- or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, vices for virtually every purpose in the areas of real mier provider of business valuation and valuation ad- CA 91423, (818) 981-4226, fax (818) 981-4278, and estate (commercial, industrial, and residential), ma- visory services, specializing in litigation support and 333 City Boulevard West, 17th Floor, Orange, CA chinery and equipment, and business valuations. expert witness testimony. Services include valuations 92868, (714) 939-1781, fax (714) 938-3874, e-mail: See display ad on page 52. for goodwill loss, estate and gift tax planning (family [email protected]. Contact Barbara Luna, Drew limited partnerships), lost profit analysis, mergers Hunt, Paul White, Jack Zuckerman, Fred FULCRUM FINANCIAL INQUIRY LLP and acquisitions, goodwill impairment, fairness and Warsavsky, and Bill Wolf. 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Prior “Big Four” track record in successful court cases and client re- accounting firm experience. Specialties include ac- coveries. Our expertise encompasses damages APPRAISAL/BUSINESS VALUATION counting, antitrust, breach of contract, business in- analysis, lost profit studies, business and intangible terruption, business dissolution, construction, fraud asset valuations, appraisals, fraud investigations, BTI APPRAISAL investigation, asset tracing analysis, intellectual statistics, forensic economic analysis, royalty audits, 605 West Olympic Boulevard, Suite 820, Los property, product liability, real estate, spousal sup- strategic and market assessments, computer foren- Angeles, CA 90015, 1829 Highgrove Drive, port, tax, valuation of businesses and real estate, un- sics, electronic discovery, and analysis of computer- Escondido, CA 92027, (866) 256-9300, fax (213) fair advertising, unfair competition, and wrongful ter- ized data. See display ad on page 2. 532-3807, e-mail: [email protected]. Web site: mination. See display ad on page 51. www.btiappraisal.com. Contact Ben F. Tunnell, III, HAMILTON, RABINOVITZ & ALSCHULER, chairman. We provide litigation and appraisal ser- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS INC. vices for virtually every purpose in the areas of real 11900 West Olympic Boulevard, Suite 650, Los 6033 West Century Boulevard, Suite 890, Los Ange- estate (commercial, industrial, and residential), ma- Angeles, CA 90064-1151, (310) 826-1040, fax (310) les, CA 90045, voice (310) 645-9000, fax (310) 645- chinery and equipment, and business valuations. 826-1065. Web site: www.zsscpa.com. Contact 8999. E-mail: [email protected]. Contact Francine See display ad on page 52. Lester J. Schwartz, Michael D. Saltsman, or David Rabinovitz, PhD, executive vice president. Public Dichner. Accounting experts in forensic accounting, policy, finance, and management consultants provid- DELOITTE & TOUCHE LLP tax issues, business valuations, and appraisals, mar- ing litigation support, simulation, and modeling to 350 South Grand Avenue, Los Angeles, CA 90071, ital dissolutions, eminent domain, insurance losses, courts and corporate/public litigants in land use, real (213) 688-4135, fax (213) 673-6719, e-mail: business interruption, goodwill, economic analysis, estate development, environmental protection, mass [email protected]. Contact Michael Spindler, investigative auditing, loss of earning, commercial tort (including toxic tort), insurance, finance, housing, (213) 688-4135, Stefan Boedeker, (213) 688-4107, damages, and lost profits. Expert witness testimony, minority rights, education, and employment cases. Christian Tregillis, (213) 996-5917, Mimi Justice, preparation, and settlement negotiations and consul- Degrees/license: MBAs, PhDs, cert. planners, MPAs, (714) 436-7026, Tom Hughes, (619) 237-6583. Our tations. See display ad on page 56. MCPs. highly skilled team is composed of a diverse group of practitioners—CPAs, Certified Fraud Examiners, ADA/DISABILITY DISCRIMINATION HARGRAVE & HARGRAVE statisticians, economists, computer forensic experts, 520 Broadway, Suite 680, Santa Monica, CA 90401, business valuation experts, and online research spe- HAIGHT CONSULTING (310) 576-1090, fax (310) 576-1080, e-mail: terry cialists. We also employ former senior law enforce- 1726 Palisades Drive, Pacific Palisades, CA 90272, @taxwizard.com. Web site: www.taxwizard.com. ment officials and agents from the FBI and other gov- (310) 454-2988, fax (310) 454-4516. Contact Marcia Contact Terry M. Hargrave, CPA/ABU, CFE. Litiga- ernment agencies. Services available worldwide. Haight. Human resources expert knowledgeable in tion services for family law and civil cases. Past chair both federal and California law. Twenty-five years’ of California Society of CPAs’ Family Law Section SCHULZE HAYNES & CO. corporate human resources management experi- and business valuation instructor. Services include 660 South Figueroa Street, Suite 1280, Los Angeles, ence plus over 14 years as a Human Resources business valuations, income available for support, CA 90017, (213) 627-8280, fax (213) 627-8301, Compliance Consultant in California. Specializations tracing separate property, litigation consulting, medi- e-mail: [email protected]. Web site: www include sexual harassment, ADA/disability discrimi- ation, fraud investigations, damage calculation, and .schulzehaynes.com. Contact Karl J. Schulze or nation, other Title VII and FEHA discrimination and other forensic accounting work. Dana Haynes, principals. 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AUTOMOTIVE INDUSTRY

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BANKING

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BANKRUPTCY/TAX

BALL CM, INC. 24405 Chestnut Street, #201, Newhall, CA 91321, (800) 919-7899, fax (661) 254-2127, e-mail: chris @ballcm.com. Web site: www.ballcm.com. Contact Chris Ball. Services available include contract disputes, change order disputes, claims preparation and analysis, scheduling and delay analysis, site inspections, code compliance, cost estimating, construction standard of care, all trades, and large

56 LOS ANGELES LAWYER / NOVEMBER 2003 and small cases. See display ad on this page. BUSINESS APPRAISAL/BUSINESS track record in successful court cases and client re- VALUATION coveries. Our expertise encompasses damages BALLENGER, CLEVELAND & ISSA, LLC analysis, lost profit studies, business and intangible 10990 Wilshire Boulevard, 16th Floor, Los Angeles, ABACUS GROUP LLC asset valuations, appraisals, fraud investigations, CA 90024, (310) 873-1717, fax (310) 873-6600. Con- One Park Plaza, 6th Floor, Irvine, CA 92614, statistics, forensic economic analysis, royalty audits, tact Bruce W. Ballenger, CPA, executive manag- (714) 389-2857, fax (714) 389-9066, e-mail: strategic and market assessments, computer foren- ing director. Services available: assist counsel in [email protected]. Web site: www sics, and electronic discovery and analysis of com- determining overall strategy. Help evaluate deposi- .theabacusgroup.org. Contact Steve Ahn. Experts puterized data. See display ad on page 2. tions and evidence. Provide well-prepared, well-doc- in business valuation, corporate financing, mergers umented, and persuasive in-court testimony regard- and acquisitions, due diligence, and litigation sup- GURSEY, SCHNEIDER & CO., LLP ing complicated accounting, financial, and business port. Abacus’ professionals have completed over $5 10351 Santa Monica Boulevard, Suite 300, Los valuation matters, fairness of interest rates, feasibility billion of successful transactions and hundreds of Angeles, CA 90025, (310) 552-0960, fax (310) 557- of reorganization plans, fraudulent conveyances, valuations and analyses throughout every major in- 3468, e-mail: [email protected]. Web site: bankruptcies, mergers and acquisitions, and man- dustry. Proven expertise in corporate turn-arounds, www.gursey.com. Contact Vanita M. Spaulding, agement misfeasance/malfeasance. More than 100 management consulting, interim management, and CFA, ASA. Partner qualifications include MBA, CFA, open-court testimonies, federal and state, civil and reorganization bankruptcy consulting. East coast of- ASA, and ABV. GSCO is an accounting firm special- criminal. See display ad on page 52. fice Atlanta, GA. Contact Robert Barnett (404) izing in forensic accounting, litigation support ser- 435-9768. vices, business valuation and appraisal services, for GREENBERG GLUSKER FIELDS CLAMAN a variety of purposes including marital dissolution, MACHTINGER & KINSELLA LLC COHEN, MISKEI & MOWREY LLP gift and estate planning, eminent domain goodwill 1900 Avenue of the Stars, Suite 2100, Los Angeles, 15303 Ventura Boulevard, Suite 1150, Sherman loss, business disputes, malpractice, tax matters, CA 90067, (310) 201-7456, fax (310) 553-0687, Oaks, CA 91403, (818) 986-5070, fax (818) 986- bankruptcy, damage and cost-profit assessments, e-mail: kblock@ggfirm.com. Web site: www.ggfirm 5034, e-mail: [email protected]. Contact insurance claims, court accounting, tracing, and en- .com. Contact Karl E. Block. Expert testimony and Scott Mowrey. Specialties: consultants who provide tertainment industry litigation. GSCO has over 30 consulting. extensive experience, litigation support and expert years’ experience as expert witnesses in litigation testimony regarding forensic accountants, fraud in- support. See display ad on page 55. BUILDING & FIRE CODES vestigations, economic damages, business valuations, family law, bankruptcy, and reorganization. De- PFS CORPORATION grees/license: CPAs, CFEs, MBAs. See display ad HAYNIE & COMPANY, CPAS 3637 Motor Avenue, Suite 380, Los Angeles, CA on page 64. 4910 Campus Drive, Newport Beach, CA 92660, 90034, (310) 559-7287, fax (310) 559-1368, e-mail: (949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Web site: www FULCRUM FINANCIAL INQUIRY LLP [email protected]. Web site: www .pfscorporation.com. Contact J. Robert Nelson, PE. 1000 Wilshire Boulevard, Suite 1650, Los Angeles, .hayniecpa.com. Contact Steven C. Gabrielson. Building and fire code expert. Thirty years in code CA 90017, (213) 787-4000, fax (213) 787-4144, Alter ego, consulting and expert witness testimony in enforcement and construction (10 years with ICBO/ e-mail: [email protected]. Web site: www a variety of practice areas: commercial damages, Uniform Building Code and Uniform Fire Code, 5 .fulcruminquiry.com. Contact David Nolte. Fulcrum’s ownership disputes, economic analysis, business years with Los Angeles County Building Department). analysis and research, combined with unique pre- valuation, lost profits analysis, fraud/forensic investi- Civil, structural, and fire protection engineering. sentation techniques, have resulted in an unequaled gations, taxation, personal injury, wrongful termina-

LOS ANGELES LAWYER / NOVEMBER 2003 57 You r tion, professional liability, and expert cross examina- SANLI PASTORE & HILL, INC. tion. Extensive public speaking background assists 1990 South Bundy Drive, Suite 800, Los Angeles, CA in courtroom presentations. 90025, (310) 571-3400, fax (310) 571-3420, Web site Single Source address: www.sphvalue.com. Contact Nevin Sanli HIGGINS, MARCUS & LOVETT, INC. or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- for construction-related 800 South Figueroa Street, Suite 710, Los Angeles, mier provider of business valuation and valuation ad- CA 90017, e-mail: [email protected]. Web site: www visory services, specializing in litigation support and investigations and litigation support. .hmlinc.com. Contact Mark C. Higgins, ASA, presi- expert witness testimony. Services include valuations dent. The firm has over 20 years of litigation support for goodwill loss, estate and gift tax planning (family and expert testimony experience in matters involving limited partnerships), lost profit analysis, mergers business valuation, economic damages, intellectual and acquisitions, goodwill impairment, fairness and property, loss of business goodwill, and lost profits. solvency opinions, ESOPs, incentive stock options, Areas of practice include business disputes, eminent capital raises, corporate, partnership, and marital domain, bankruptcy, and corporate and marital dis- dissolutions. Comprehensive economic, industry, solution. See display ad on page 53. and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 61. KAPLAN ABRAHAM BURKERT & COMPANY Forensic valuation consultants. 5950 Canoga VICENTI, LLOYD & STUTZMAN LLP Avenue, Suite 200, Woodland Hills, CA 91367, (818) 2100-A Foothill Boulevard, La Verne, CA 91750, 888-0066, fax (818) 888-8860. Contact Michael G. (909) 593-4911, e-mail: [email protected]. Web Kaplan, CPA, CVA, CFFA. Expert witness services site: www.vlsllp.com. Contact Royce Stutzman, and preparation in matters involving business dis- CVA, CPA, chairman. Our certified professionals putes, goodwill, economic damages, loss of earn- Consulting Services serve as consultants and experts in business valua- ings and profits, fraud and embezzlement, forensic Our experienced experts/consultants tions and litigation support. We conduct valuations accounting, business valuation, marital dissolution, related to mergers and acquisitions, buy-sell agree- ensure a coordinated, cost-effective, legal and accountants’ malpractice, wrongful termi- ments, purchase/sale of closely held businesses, multi-disciplined approach to visual and nation, intellectual property, and bankruptcy. Mem- partner disputes, etc. Our forensic accounting ex- ber of Voir Dire Partners, LLC. Affiliated offices na- intrusive site investigations, document perts assess the amount of an economic loss, tionwide. review, research and analysis of code and whether it be business interruption from casualty, unfair competition, condemnation, damage caused by industry standards issues, cost estimates, NANCY A. KEARSON, CPA, ABV, CVA, others, or loss of earnings from various events. Our arbitration, mediation, and courtroom DABFA fraud investigation team reviews documentation, in- testimony involving: 1801 Century Park East, Suite 2400, Los Angeles, terviews witnesses and suspects, and assesses evi- CA 90067, (310) 785-9614, fax (310) 277-1278, dence to resolve allegations. We provide expert wit- Construction Defects e-mail: [email protected]. Contact Nancy ness testimony and implement fraud prevention pro- Kearson. Specialties: solid, cost-effective, timely ex- Delay and Disruption Claims grams. VLS Is Celebrating 50 Years of Quality Ser- pert witness and consultation services, investigative vice! Insurance Investigation forensic accounting, asset tracing, loss of earnings calculations, partnership and shareholder disputes, WHITE, ZUCKERMAN, WARSAVSKY, LUNA Personal Injury/Safety business valuation, and professional practice ap- & WOLF praisal. Director, California Society of CPAs-LA. Im- ADA Auditing and Compliance 14455 Ventura Boulevard, Suite 300, Sherman Oaks, mediate past officer, Family Law Section, former CA 91423, (818) 981-4226, fax (818) 981-4278, and Contractual Disputes chair, Family Law Conference. Licenses: certified pub- 333 City Boulevard West, 17th Floor, Orange, CA lic accountants, accredited in business valuation, Error & Omission Claims 92868, (714) 939-1781, fax (714) 938-3874, e-mail: certified valuation analyst, diplomate of the American [email protected]. Contact Barbara Luna, Drew Board of Forensic Accountants, certified fraud exam- Hunt, Paul White, Jack Zuckerman, Fred iner. Surety Claims Services Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital KRYCLER, ERVIN, TAUBMAN, & WALHEIM Complete surety support, including initial dissolution. Investigative analysis of liability, damage 15303 Ventura Boulevard, Suite 1040, Sherman exposure analysis, project takeover and analysis of lost profits and earnings, fraud investiga- Oaks, CA 91403, (818) 995-1040, fax (818) 995- completion, claims packaging and tion, business and real estate valuation, tax planning 4124. Web site: [email protected]. Contact and preparation and mergers and acquisitions. Hun- resolution, and subrogation and recovery. Michael J. Krycler. Litigation support, including dreds of times as expert witnesses. Prior “Big Four” forensic accounting, business appraisals, family law accounting firm experience. Specialties include ac- accounting, business and professional practice valu- Takeovers and Completions counting, antitrust, breach of contract, business in- ations. Accounting for litigations, including damages, Exposure Analysis terruption, business dissolution, construction, fraud fraud investigations, and lost earnings. Krycler, Ervin, investigation, asset tracing analysis, intellectual Taubman and Walheim is a full-service accounting Payment Bond Claim Reconciliations property, product liability, real estate, spousal sup- firm. Construction Claims/Packaging and port, tax, valuation of businesses and real estate, unfair advertising, unfair competition, and wrongful ter- Resolution MIOD AND COMPANY, LLP CPAS mination. See display ad on page 51. Dispute Resolution 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax CHEMISTRY Litigation Support (818) 898-9922, 74-478 Highway 111, Suite 254, Expert Witness Testimony Palm Desert, CA 92260, (760) 779-0990, fax (760) CHEMICAL ACCIDENT RECONSTRUCTION 779-0960, e-mail: [email protected]. Visit our Computerized Document Control SERVICES, INC. Web site at www.miod-cpa.com. Contact Donald 9121 East Tanque Verde Road, Suite 105, Tucson, John Miod, CPA, ABV, CVA, CBA. More than 30 AZ 85749, (800) 645-3369, fax (520) 749-0861, years’ experience in litigation support, including e-mail: [email protected]. Web site: www computation of income available for support, tracing, .chemaxx.com. Contact Dr. Michael Fox. Compre- business valuations, fraud investigations, earnings hensive chemical accident investigation—specializ- loss calculations, and income tax matters. Our firm is ing in complex industrial chemical accidents and 7 very computer-oriented, involving the use of com- chemical-related consumer product injuries, chemi- puter graphics. We are members of the Institute of cal fires and explosions, chemical labeling, chemical www.roel.com / 800.662.7635 Business Appraisers, the International Society of packaging, chemical handling and shipping, chemi- California / Arizona / Nevada CPAs (founding member), the American Institute of cal burns, hot liquid burns, chemical warnings, Utah / New Mexico / Oregon CPAs, and California Society of CPAs. See display chemical disposal, chemical safety, EPA, DOT, ad on page 50. OSHA, propane, natural gas, flammable liquids, haz-

58 LOS ANGELES LAWYER / NOVEMBER 2003 ardous chemicals, aerosols, metallurgy, corrosion, failure analysis, water contamination, water testing, plastics, acids, alkalis, and MSDSs. State-of-the-art equipment available, including natural SEM/EDAX, GC/MS, FTIR, etc. PhD physical chemistry, certified fire and explosion investigator, NACE accredited in corrosion, OSHA HAZWOPER certified (hazardous chemicals), DOT certified (shipment of hazardous materials), accredited in aerosol technology.

CHIROPRACTIC

ANTHONY B. MOROVATI, DC, DAAPM 1101 North Pacific Avenue, Suite 104, Glendale, CA 91202, (818) 500-8484, fax (818) 500-8496, e-mail: [email protected]. Web site: www.morovati.com. Contact Caren. Specialties: on staff at Glendale Memorial Hospital, lecturer/instructor on MUA, past chairman of Chiropractic Department at Thompson Memorial Hospital, privileges pending at Cedars- Sinai Medical Center Pain Clinic, and excellent expert witness. Degrees/licenses: AS in Diagnostic Ra- — DRIVER ERROR ANALYSIS — diography; BS in Biology, Loma Linda University; Doctor of Chiropractic from CCCLA, Certified in Ma- Human Factors Forensic Science nipulation Under Anesthesia (MUA)/ Diplomate American Academy of Pain Management. Driver error • Inattention • Fatigue • Sensory, perceptual, Internationally mental, and physical factors • Car, truck and bus driver COMPUTER FORENSICS skill and knowledge requirements • Driver and motor Recognized carrier standards of care • Hours of service violations • DECISION MANAGEMENT GROUP Circadian rhythms • Sleep debt • Human factors traffic P.O. Box 5131, Sherman Oaks, CA 91413, (818) 205- Expert accident analysis 1698, fax (818) 337-7524, e-mail: [email protected]. Web site: www.DMGrp.com. Contact Michael J. www.drivingfatigue.com Hansen, president and CEO. Staffed and operated DENNIS WYLIE ■ D. WYLIE ASSOCIATES by former federal agents, law enforcement, and infor- P O Box 60836, Santa Barbara, CA 93160 mation security professionals specifically trained, licensed, and certified in the analysis of digital evi- VOICE (805) 681•9289 ■ FAX (805) 681•9299 dence, computer crime and Internet investigations. Investigators in the US, Puerto Rico, Canada, Cen- tral/South America and Europe rely on DMG to train their investigators. DMG’s professional staff can assist you or your clients worldwide. See display ad on page 49.

FULCRUM FINANCIAL INQUIRY LLP 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4000, fax (213) 787-4144, e-mail: [email protected]. Web site: www .fulcruminquiry.com. Contact David Nolte. Fulcrum’s analysis and research, combined with unique presentation techniques, have resulted in an unequaled track record in successful court cases and client re- coveries. Our expertise encompasses damages analysis, lost proﬁt studies, business and intangible asset valuations, appraisals, fraud investigations, LE D. statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, and electronic discovery and analysis of computerized data. See display ad on page 2.

COMPUTERS/INFORMATION SCIENCES

COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, An acknowledged leader in Dispute Avoidance and (310) 823-9448, fax (310) 821-4021, e-mail: Resolution services, we can help you with the [email protected]. Web site: www .cosgrovecomputer.com. Contact John Cosgrove. prevention, investigation, evaluation and resolution John Cosgrove, PE, has over 40 years’ experience in of construction contract disputes. For details, computer systems and has been a self-employed, consulting software engineer since 1970. He is a call 213-486-9884 or visit www.PinnacleOne.com part-time lecturer in the UCLA School of Engineering and LMU graduate school. He recently completed an invited article, Software Engineering & Litigation for the Encyclopedia of Software Engineering. He holds the CDP, is a member of ACM, NSPE, a senior member of IEEE Computer Society and a professional engineer in California. Formal education includes a BSEE from Loyola Marymount and a master of engi- Program & Project Management • Dispute Avoidance & Resolution • Real Property Advisory Services neering from UCLA.

LOS ANGELES LAWYER / NOVEMBER 2003 59 Art Floyd Multi-Trade Associates, Inc. Premises * * * Expert Witness Call: (800) 643-7478 or (800) 684-4473 Liability

You cannot tailor-make the Don’t be humble: you’re not EXPERT situations in life, but you can that great WITNESS tailor-make the attitudes to fit Golda Meir those situations — Zig Zigler When a man has done his - Structure Collapse — best, what else is there? - Slips, Trips & Falls It is not fair to ask of others George S. Patton - Falling Objects what you are not willing to do — - Window & Opening Falls yourself - Railing & Banister Failure Eleanor Roosevelt We all live with the objective - Limbs In Machinery — of being happy; our lives are - Garage Door injuries all different and yet the same - Gate injuries The empires of the future are Anne Frank empires of the mind - Stair & Landing Falls — — Winston Churchill - Ladder/Scaffolding Falls What happens to a man is — Desire Creates Power! less significant than what Raymond Holliwell PLUMBING INJURIES We are not interested in the happens within him — - Hot Water Scalding Louis L. Mann possibilities of defeat - Storm Drains & Floods — Queen Victoria Don’t compromise yourself. - Shower Door Enclosures You are all you’ve got Nothing in life is to be feared. — Betty Ford - Wrong Way Faucets It is only to be understood A will finds a way! — - Sewer & Health Issues Madame Curie Orison Swett Marden Effort only fully releases its ELECTRIC INJURIES — — reward after a person refuses - Burns & Reflex Injuries A man’s dreams are an index No one can figure out your to quit - Faulty Wiring & Fires Napoleon Hill to his greatness worth but you - Shocks & Electrocution Zadok Rabinowitz Pearl Bailey - Ground Circuit Hazards - Electric Box "Lock-Outs" - Safety Circuit Interlocks ”Hands-on Experience that makes the Difference”SM - Faulty Bonding Circuits

PREMISES TYPES Arthur G. Floyd - Commercial/Industrial - Multiple Residential Over 40 years of Premises Hazard Reduction & Remediation - Single Family Homes

Premises Liability Expert Hot Water Scalding Expert PROPERTY DAMAGE - Sterling Personal Safety Record - Certiﬁed Plumbing Inspector - Water Damage - Operations & Management - Water Heater & Boiler Operations - Structural Failures - Premises Emergency Response - Tub / Shower / Faucet Temperatures - Building Subsidence - Premises Repair & Maintenance - Hot Water Mixing Systems - Fungus / Decay / Mold - Foundation Failure - Hands-on Experience & Testimony - Temperature & Pressure Balancing - Earthquake & Fire - Premises Hazards & Accidents - Hot Water Safety Control Systems - Tenant Destruction

Call: Arthur G. Floyd - President (800) 643-7478 ➨ Ask to Speak with Art or ➨ For Free Initial Case Discussion (800) 684-4473 ➨ To Receive Curriculum Vitae

Multi-Trade Associates, Inc. SERVING ALL SOUTHWESTERN STATES Licenses: 651468 & 294815 COMPUTER SYSTEMS, WEB/ E-BUSINESS SYSTEMS AND LITIGATION CONSULTING

WSR CONSULTING GROUP, LLC 4273 Noeline Avenue, Suite 200, Encino, CA 91436, (818) 986-8842, fax (818) 986-7955, e-mail: wsreid @wsrcg.com. Web site: www.wsrcg.com. Contact Warren S. Reid. Our outstanding professionals help you maximize your litigation results! We specialize in: large-scale computer, ERP, and Web systems failure litigation, system development, life cycle methodology, project and risk management, quality assurance, software testing, acceptance/performance and rollout, technology contracts, intellectual property infringement and misappropriation. Experience in superior, federal and Court of Federal Claims, and international courts.

CONSTRUCTION

ABACUS PROJECT MANAGEMENT, INC. 20201 Southwest Birth Street, Suite 240, Newport — EXPERT WITNESS IN — Beach, CA 92660, (949) 851-1015, fax (949) 851- 0409, e-mail: jﬂ[email protected]. Web site: INFERTILITY, GYNECOLOGY & OBSTETRICS www.abacuspm.com. Contact John Flynn. Expert witness (testiﬁed on 20 occasions in superior court.) IVF (In Vitro Fertilization) • LASER SURGERY • Cost estimation, construction management analysis, delay analysis, and professionally trained mediation LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY and arbitrator. Lead expert with over 40 years’ experience in construction industry. GIL N. MILEIKOWSKY, M.D.

BALL CM, INC. OFFICES: Encino and Beverly Hills 24405 Chestnut Street, #201, Newhall, CA 91321, 2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077 (800) 919-7899, fax (661) 254-2127, e-mail: chris TEL (310) 858-1300 • FAX (310) 858-1303 @ballcm.com. Web site: www.ballcm.com. Contact Chris Ball. Services available include contract dis- TEL (818) 981-1888 • FAX (818) 981-1994 putes, change order disputes, claims preparation Please see listing under INFERTILITY and OBSTETRICS AND GYNECOLOGY for more information. and analysis, scheduling and delay analysis, site inspections, code compliance, cost estimating, construction standard of care, all trades, and large and small cases. See display ad on page 57.

EDMONDS ASSOCIATES, CONSULTANTS, INC. THE BEST LEGAL MINDS 5020 Campus Drive, Newport Beach, CA 92660, (949) 250-8858, fax (760) 591-0733, 1561 Via IN THE COUNTRY Entrada del Lago, San Marcos, CA 92069, (760) 591- 9409, fax (760) 591-0733, e-mail: rexedmonds @ltsp.com Web site: www.edmondsconsultants.com. TALK TO US Contact Rex Edmonds, CPE. Discovery, analysis, consultation, evaluation, and testimony in matters of construction methods, costs, management, custom and practice/standards of care, schedule, delay/ac- ¥ Metallurgical Failures ¥ Bio-Medical/Orthopedic Implants celeration impact, constructibility, and accidents. Corrosion & Welding Failures Plumbing/Piping/ABS Failures Solid background in construction, engineering, cost ¥ ¥ estimating, general contracting (union/open-shop/ ¥ Glass & Ceramic Failures ¥ Complete In-House Laboratory design-build) of commercial, industrial, institutional, ¥ Chairs / Ladders / Tires Testing & Analysis Facilities residential, waste and water treatment, pre-engi- neered, and site development/grading projects. ¥ Automobile/Aerospace/ ¥ Expert Witnesses/Jury Verdicts BSCE, CAL. B license, Certiﬁed Professional Estima- Accidents ¥ Licensed Professional Engineers tor, ASPE. See display ad on page 77.

FORENSISGROUP Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) Dr. Ramesh Kar, Fellow ASM, Fellow ACFE 795-1950, e-mail: [email protected]. Web site: www.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality ADVANCED MATERIALS, INC. experts in construction, engineering, product liability, Testing & Research Labs safety, environmental, accident reconstruction, auto- 2528 W. Woodland Drive motive, failure analysis, ﬁres, explosions, slip and Anaheim, CA 92801 fall, real estate, economics, appraisal, employment, computers, and other technical and scientiﬁc disci- ■ TEL: (714)527-7100 plines. We provide you with a select group of high- ■ FAX:: (714)527-7169 quality experts as expeditiously as possible. Unsur- ■ ■ passed recruitment standards. Excellent client ser- www.karslab.com email: [email protected] vice. See display ad on page 59.

LOS ANGELES LAWYER / NOVEMBER 2003 61 ¥ Commercial & Employment Mediation ¥ Public Agency Hearing Appeals ¥ Fee Disputes: Arbitration and Mediation ¥ Rainbow Mediations Service ¥ Community Mediation Services ¥ School and Youth ADR Programs ¥ ADR Systems Design & Consultation Think Mediation... Choose DRS FOR AFFORDABLE AND TOTAL QUALITY DISPUTE RESOLUTION SERVICES

“Woody Mosten’s Advanced Coming in December! An Intense Training challenged my Advanced Family Mediation Training 2-Day training experience focusing on advanced skills an assumptions, gave me new complex family law issues. perspectives, and offered workable models to improve December 12 &13, 2003 ■ 9:00 a.m.-5:00 p.m. LACBA Lexis/Nexis Conference Center my mediation practice.” COURSE HIGHLIGHTS INCLUDE: Lee Jordan, AFM Practitioner Member and ¥ Working with lawyers as allies inside and outside the mediation room ¥ Mediating Pre-marital and Co-habitation Agreements Certified Family Law Specialist, Palo Alto ¥ Family Business Disputes ¥ Parent-Adult Child Disputes ¥ Parent Relocation Custody Disputes Course is designed for mediators, lawyers, ¥ Gay-Lesbian Mediations mental health professionals, financial ¥ Advanced Strategies to Break Impasse professionals, and other professionals dealing This course will provide generic advanced settlement and convening skills for those with divorcing families. Participants should who wish to enhance their introductory settlement and convening skills training. The have completed a 30 hour mediation training role plays and lectures involve advanced formats, roles of the mediator, skills in and/or have mediation practice experience. dealing with lawyers and experts at the table, issues involving adult children and their parents, family businesses, geographical move ways, cohabitation agreements and other advanced issues It also will encompass training for an audience of diverse educational and professional backgrounds and diverse cultural and ethnic To register or for more backgrounds. Specifically, the course will cover racial intolerance, sexual preference issues, and problems surrounding retirement. It will also provide subject matter information, call (213)- specific training that may be specifically transferable to divorce and domestic partner- 896-6560. ship disputes of most kinds. Approved for 14 hours continuing education credit by the Academy of Family Mediators and MCLE/Family Specialization.

DISPUTE RESOLUTION SERVICES IS NOW OFFERING THREE NEW PROGRAMS IN MEDIATION AND ADR ¥ Advanced Mediation Skills ¥ ADR for Construction Contract Disputes ¥ Effective Client Representation in Mediation Please ask about the DRS Attorney-Client Mediation Program. For information on our ADR training programs, please call the DRS Training Coordinator at (213) 896-6441.

Los Angeles County Bar Association Tel (213) 896-6560 E-mail [email protected] Dispute Resolution Services Web site www.lacba.org/DRS 261 South Figueroa Street, Suite 310, Los Angeles CA 90012 Offices also in Pasadena and West Hollywood FULL SERVICE REAL-ESTATE SPECTRUM DEVELOPERS gon, New Mexico and Utah. See display ad on Planned Space; Thorough Inspection Service 1241 Flemington Road, Riverside, CA 92506, (909) page 58. 604 West Las Tunas Drive, San Gabriel, CA 91776, 776-1194, fax (909) 776-1196, e-mail: steve (626) 289-3500, cell: (626) 533-8878, e-mail: @spectrumdevelopers.com. Web site: www CONSTRUCTION INVESTIGATIONS [email protected]. Contact Charles A. .spectrumdevelopers.com. Contact Steve Koppes. (Chuck) Gabriels. I perform expert witness testi- Inspections, expert testimony, and consulting for DELOITTE & TOUCHE LLP mony in the fields of construction, inspection ser- construction defects related to swimming pools, 350 South Grand Avenue, Los Angeles, CA 90071, vices, deputy and home inspectors, and real estate. fountains, and spas. (213) 688-4135, fax (213) 673-6719, e-mail: With over 30 years as licensed California real estate [email protected]. Contact Michael Spindler, broker, 20 years as licensed general contractor, cur- ULTIMO ORGANIZATION, INC. (213) 688-4135, Stefan Boedeker, (213) 688-4107, rently 7 years in inspection industry and member of 1411 East Borchard Avenue, Santa Ana, CA 92705, Christian Tregillis, (213) 996-5917, Mimi Justice, C.R.E.I.A., with architectural plus paralegal studies (714) 560-8999, fax (714) 560-8998, e-mail: yolana (714) 436-7026, Tom Hughes, (619) 237-6583. Our degrees. I can handle all your needs in above fields. @geotechnical.com. Web site: www.geotechnical highly skilled team is composed of a diverse group .com. Contact Frank Ultimo. Estimating cost of re- of practitioners—CPAs, Certified Fraud Examiners, LAWNETINFO.COM/HANK KRASTMAN, pair of construction defects. Hands-on construction statisticians, economists, computer forensic experts, PhD, JD experience both commercial and residential for 40 + business valuation experts, and online research spe- 20610 Romar Street, Chatsworth, CA 91311, (818) years’ experience involving analysis design and con- cialists. We also employ former senior law enforce- 727-1723, fax (818) 727-1723, e-mail: krastman struction include foundation floor-level surveys, re- ment officials and agents from the FBI and other gov- @earthlink.net. Web site: www.lawnetinfo.com. pair plans, and drawing, also waterfront expertise, ernment agencies. Services available worldwide. Contact Hank Krastman. Retired LA city building and environmental remediation, structural engineer- inspector/investigation, reports, deposition analysis, ing, geotechnical investigation, codes, and accurate KPA ASSOCIATES, INC. inverse condemnation cases, construction defects, documentation and estimates. See display ad on 3033 Fifth Avenue, Suite 100, San Diego, CA 92103, building department issues, zoning issues, injuries page 65. (619) 725-0980, fax (619) 725-0988, e-mail: r.tov on properties, fire, slip and fall, landslides, electrocu- @kpaa.com. Web site: www.kpaa.com. Contact Ron tion, discovery, construction consulting, permit expe- URS Tov. Architectural expert witness and consulting ser- diting, drafting services, engineering services, de- 911 Wilshire Boulevard, Suite 1800, Los Angeles, CA vice for construction defect and personal injury sign services, and anything else related to the con- 90017, (213) 996-2549, fax (213) 996-2521, e-mail: claims, including investigation, mediation, arbitration, struction industry. Attorney’s Guide to UBC Building [email protected]. Expert witness for and trial testimony on architecture, building codes, Code. See display ad on page 68. entitlement, causation damages on design, construc- consturction, standards of care, responsibility allocation, and geotechnical environmental disputes. Expe- tion, and repair solutions. Experience from over 1000 PACIFIC CONSTRUCTION CONSULTANTS, rienced in all types of construction projects. See dis- investigations, ranging from custom homes to com- INC. play ad on page 64. plex 1,500 unit residential projects and nonresiden- (800) 655-PCCI. 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See display ad analysis and research, combined with unique pre- 1000 Wilshire Boulevard, Suite 1650, Los Angeles, on page 66. sentation techniques, have resulted in an unequaled track record in successful court cases and client re- CA 90017, (213) 787-4000, fax (213) 787-4144, e-mail: [email protected]. Web site: www PCMI THE EXPERT CHOICE® coveries. Our expertise encompasses damages .fulcruminquiry.com. Contact David Nolte. Fulcrum’s 2402 Cross Street, Riverside, CA 92503, (800) analysis, lost profit studies, business and intangible analysis and research, combined with unique pre- 576-7264, fax (888) 307-7264, e-mail: pcmi asset valuations, appraisals, fraud investigations, sentation techniques, have resulted in an unequaled @pcmi-experts.com, Web site: www.pcmi-expert statistics, forensic economic analysis, royalty audits, track record in successful court cases and client re- .com. Contact Scott Vivian, CEO. PCMI is a con- strategic and market assessments, computer foren- coveries. Our expertise encompasses damages struction consulting firm providing litigation, media- sics, and electronic discovery and analysis of com- analysis, lost profit studies, business and intangible tion, and court testimony since 1982 for construction puterized data. See display ad on page 2. asset valuations, appraisals, fraud investigations, defects, delay claims, breach of contract, and per- statistics, forensic economic analysis, royalty audits, sonal injury. Our in-house staff of experts include PINNACLEONE strategic and market assessments, computer foren- such specialty fields as architecture, roofing and wa- 515 South Flower Street, Suite 3510, Los Angeles, sics, electronic discovery and analysis of computer- terproofing, mechanical and plumbing, structural en- CA 90071, (213) 486-9884, fax (213) 486-9894, ized data. See display ad on page 2. gineering, electrical, building safety, and cost esti- e-mail: [email protected]. Established in 1980, mating, general contracting, with a strong emphasis PinnacleOne is a national firm of leading construction in community developments. PCMI has provided ex- consultants who promote a full range of professional DISABILITY services, including dispute avoidance and resolu- pert services since 1982 for both plaintiff and de- STEPHEN J. MOREWITZ, PhD & fense. See display ad on page 52. tion, claims analysis and management, litigation support services, expert witness, project management, ASSOCIATES 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- SCHWARTZ/ROMANO & ASSOCIATES, INC. financial services, and more. Headquartered in 1587, fax (818) 345-9981, e-mail: morewitz@earthlink 3075 East Thousand Oaks Boulevard, Building 100, Phoenix, PinnacleOne regional operations are located .net. Web site: http//home.earthlink.net/~morewitz/. Suite 23, Thousand Oaks, CA 91362, (805) 777-1115, in San Diego, Irvine, Los Angeles, Sacramento, and Contact Dr. Steve Morewitz. 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Documentation of major property/casualty in- ABACUS PROJECT MANAGEMENT, INC. ence, the Roel Consulting Group offers a single surance losses. Determination of professional perfor- 20201 Southwest Birth Street, Suite 240, Newport source for tightly coordinated high-quality expert ser- mance standards. Architectural and engineering de- Beach, CA 92660, (949) 851-1015, fax (949) 851- vices. Our staff includes experts in virtually every sign and construction management. Quantity survey- 0409, e-mail: jfl[email protected]. Web site: field of construction specialization. We offer a wide ing and cost estimating. Litigation support and trial www.abacuspm.com. Contact John Flynn. Expert variety of services to assist attorneys and their exhibit preparation. Expert witness testimony. AAA witness (testified on 20 occasions in superior court.) clients, including testing, intrusive investigations, re- arbitrator and mediator, large and complex construc- Cost estimation, construction management analysis, ports, cost of repair analysis, mediation and litigation tion cases. Member, dispute resolution boards. delay analysis, and professionally trained mediation support. Serving California, Nevada, Arizona, Ore-

LOS ANGELES LAWYER / NOVEMBER 2003 63 and arbitrator. Lead expert with over 40 years’ expe- Matthew Lankenau rience in construction industry. 213-996-2549 [email protected] WHITE, ZUCKERMAN, WARSAVSKY, LUNA & WOLF URS is the nation’s largest engineering, consulting and construction 14455 Ventura Boulevard, Suite 300, Sherman Oaks, services firm. URS specializes in the resolution of construction disputes. CA 91423, (818) 981-4226, fax (818) 981-4278, and 333 City Boulevard West, 17th Floor, Orange, CA 92868, (714) 939-1781, fax (714) 938-3874, e-mail: Dispute Resolution & Forensic Analysis Technical Expertise [email protected]. Contact Barbara Luna, Drew Design/Construction Claims Architecture Hunt, Paul White, Jack Zuckerman, Fred Environmental Claims Engineering Warsavsky, and Bill Wolf. Expert witness testimony Bid/Cost/Damage Analysis Scheduling for business, real estate, personal injury, and marital Construction Defect Analysis Construction Management dissolution. Investigative analysis of liability, damage Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing analysis of lost profits and earnings, fraud investiga- Expert Witness Testimony Environmental tion, business and real estate valuation, tax planning Insurance/Bond Claims Geotechnical and preparation and mergers and acquisitions. Hun- dreds of times as expert witnesses. Prior “Big Four” accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud ACCIDENT RECONSTRUCTION / FAILURE ANALYSIS investigation, asset tracing analysis, intellectual property, product liability, real estate, spousal support, tax, valuation of businesses and real estate, unfair advertising, unfair competition, and wrongful ter- ROBERT C. PECKHAM, P.E. mination. See display ad on page 51. MECHANICAL ENGINEER ECONOMIC DAMAGES

DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, TEL 818 845-7400 ■ FAX 818 845-7765 (213) 688-4135, fax (213) 673-6719, e-mail: 1925 W. GLENOAKS BLVD., GLENDALE, CA 91201 [email protected]. Contact Michael Spindler, (213) 688-4135, Stefan Boedeker, (213) 688-4107, www.peckhamassociates.com Christian Tregillis, (213) 996-5917, Mimi Justice, (714) 436-7026, Tom Hughes, (619) 237-6583. Our ROBERT C. PECKHAM & ASSOCIATES | ENGINEERS AND SCIENTISTS highly skilled team is composed of a diverse group of practitioners—CPAs, Certiﬁed Fraud Examiners, statisticians, economists, computer forensic experts, business valuation experts, and online research specialists. We also employ former senior law enforcement officials and agents from the FBI and other government agencies. Services available worldwide.

ECON ONE RESEARCH, INC. 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, (213) 624-9600, fax (213) 624-6994, e-mail: [email protected]. Web site: www.econone.com. Contact Lisa Skylar, general manager. Econ One is an economic research and consulting ﬁrm of over 40 professionals with extensive experience with the litigation process. We understand the need for clear, accurate, persuasive answers to complex problems. We work with our clients to keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property and patent infringement, market analysis, regulation, stock price analysis and unfair competition. Industry specialties include energy, biotechnology, computer hardware and software, manufacturing, telecommunications, and ﬁnancial services.

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64 LOS ANGELES LAWYER / NOVEMBER 2003 analysis and research, combined with unique pre- SANLI PASTORE & HILL, INC. site: www.vlsllp.com. Contact Royce Stutzman, sentation techniques, have resulted in an unequaled 1990 South Bundy Drive, Suite 800, Los Angeles, CA CVA, CPA, Chairman. Our certified professionals track record in successful court cases and client re- 90025, (310) 571-3400, fax (310) 571-3420, Web site serve as consultants and experts in business valua- coveries. Our expertise encompasses damages address: www.sphvalue.com. Contact Nevin Sanli tions and litigation support. We conduct valuations analysis, lost profit studies, business and intangible or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- related to mergers and acquisitions, buy-sell agree- asset valuations, appraisals, fraud investigations, mier provider of business valuation and valuation ad- ments, purchase/sale of closely held businesses, statistics, forensic economic analysis, royalty audits, visory services, specializing in litigation support and partner disputes, etc. Our forensic accounting strategic and market assessments, computer foren- expert witness testimony. Services include valuations experts assess the amount of an economic loss, sics, and electronic discovery and analysis of com- for goodwill loss, estate and gift tax planning (family whether it be business interruption from casualty, puterized data. See display ad on page 2. limited partnerships), lost profit analysis, mergers unfair competition, condemnation, damage caused and acquisitions, goodwill impairment, fairness and by others, or loss of earnings from various events. HIGGINS, MARCUS & LOVETT, INC. solvency opinions, ESOPs, incentive stock options, Our fraud investigation team reviews documentation, 800 South Figueroa Street, Suite 710, Los Angeles, capital raises, corporate, partnership, and marital interviews witnesses and suspects, and assesses CA 90017, e-mail: [email protected]. Web site: www dissolutions. Comprehensive economic, industry, evidence to resolve allegations. We provide expert .hmlinc.com. Contact Mark C. Higgins, ASA, presi- and market research. Extensive experience in expert witness testimony and implement fraud prevention dent. The firm has over 20 years of litigation support witness testimony, pretrial preparation, and settle- programs. VLS Is Celebrating 50 Years of Quality and expert testimony experience in matters involving ment negotiations. See display ad on page 61. Service! business valuation, economic damages, intellectual property, loss of business goodwill, and lost profits. SCHULZE HAYNES & CO. WHITE, ZUCKERMAN, WARSAVSKY, Areas of practice include business disputes, eminent 660 South Figueroa Street, Suite 1280, Los Angeles, LUNA & WOLF domain, bankruptcy, and corporate and marital dis- CA 90017, (213) 627-8280, fax (213) 627-8301, 14455 Ventura Boulevard, Suite 300, Sherman Oaks, solution. See display ad on page 53. e-mail: [email protected]. Web site: CA 91423, (818) 981-4226, fax (818) 981-4278, and www.schulzehaynes.com. Contact Karl J Schulze 333 City Boulevard West, 17th Floor, Orange, CA KAPLAN ABRAHAM BURKERT & COMPANY or Dana Haynes, principals. Specialties: forensic 92868, (714) 939-1781, fax (714) 938-3874, e-mail: Forensic valuation consultants. 5950 Canoga business analysis and accounting, lost profits, eco- [email protected]. Contact Barbara Luna, Drew Avenue, Suite 200, Woodland Hills, CA 91367, (818) nomic damages, expert testimony, discovery assis- Hunt, Paul White, Jack Zuckerman, Fred 888-0066, fax (818) 888-8860. Contact Michael G. tance, business and real estate valuations, construc- Warsavsky, and Bill Wolf. Expert witness testimony Kaplan, CPA, CVA, CFFA. Expert witness services tion claims, corporate recovery, real estate transac- for business, real estate, personal injury, and marital and preparation in matters involving business dis- tions, financial analysis and modeling, major profes- dissolution. Investigative analysis of liability, damage putes, goodwill, economic damages, loss of earnings sional organizations, and have experience across a analysis of lost profits and earnings, fraud investiga- and profits, fraud and embezzlement, forensic ac- broad spectrum of industries and business issues. tion, business and real estate valuation, tax planning counting, business valuation, marital dissolution, legal Degrees/licenses: CPA; CVA; CFE; CMA; Certified and preparation and mergers and acquisitions. Hun- and accountants’ malpractice, wrongful termination, Appraiser, PE; RE Broker. dreds of times as expert witnesses. Prior “Big Four” intellectual property, and bankruptcy. Member of Voir accounting firm experience. Specialties include ac- Dire Partners, LLC. Affiliated offices nationwide. VICENTI, LLOYD & STUTZMAN LLP counting, antitrust, breach of contract, business in- 2100-A Foothill Boulevard, La Verne, CA 91750, terruption, business dissolution, construction, fraud (909) 593-4911, e-mail: [email protected]. Web investigation, asset tracing analysis, intellectual

LOS ANGELES LAWYER / NOVEMBER 2003 65 Construction Claims property, product liability, real estate, spousal sup- sentation techniques, have resulted in an unequaled port, tax, valuation of businesses and real estate, un- track record in successful court cases and client re- fair advertising, unfair competition, and wrongful ter- coveries. Our expertise encompasses damages When you’re handling a mination. See display ad on page 51. analysis, lost profit studies, business and intangible construction dispute, you’ll be asset valuations, appraisals, fraud investigations, ECONOMICS statistics, forensic economic analysis, royalty audits, glad to know who we are. strategic and market assessments, computer foren- ADVISORS/EXPERTS @ MCS ASSOCIATES Pacific Construction sics, and electronic discovery and analysis of com- 1881 Von Karman, Suite 1175, Irvine, CA 92612, puterized data. See display ad on page 2. Consultants, Inc. will assist in (949) 263-8700, fax (949) 263-0770, e-mail: info uncovering and analyzing facts @mcsassociates.com. Web site: www.mcsassociates HAMILTON, RABINOVITZ & important to your case. .com. Contact Norman Katz, managing partner. ALSCHULER, INC. Nationally recognized banking, finance, and real es- 6033 West Century Boulevard, Suite 890, Los Ange- Our highly experienced staff tate consulting group (established 1973). Experi- les, CA 90045, voice (310) 645-9000, fax (310) 645- will provide support from the enced litigation consultants/experts include senior 8999. E-mail: [email protected]. Contact Francine bankers, lenders, consultants, economists, accoun- first analysis to the last day in Rabinovitz, PhD, executive vice president. Public tants, insurance underwriters/brokers. Specialties: policy, finance, and management consultants provid- courtÐinvestigating, making the lending customs, practices, policies, in all types of ing litigation support, simulation, and modeling to complex understandable, and lending (real estate, business/commercial, construc- courts and corporate/public litigants in land use, real presenting evidence through tion, consumer/credit card), banking operations/ad- estate development, environmental protection, mass ministration, trusts and investments, economic analy- tort (including toxic tort), insurance, finance, housing, expert testimony and trial sis and valuations/damages assessment, insurance minority rights, education, and employment cases. support graphics. claims, coverages and bad faith, real estate broker- Degrees/license: MBAs, PhDs, cert. planners, MPAs, age, appraisal, escrow, and construction MCPs. Pacific Construction defects/disputes, and title insurance. Consultants, Inc. is responsive, NATIONAL ECONOMIC RESEARCH factual, and results-oriented. COHEN, MISKEI & MOWREY LLP ASSOCIATES, INC. 15303 Ventura Boulevard, Suite 1150, Sherman 777 South Figueroa Street, Suite 4200, Los Angeles, For more information, call Oaks, CA 91403, (818) 986-5070, fax (818) 986- CA 90017, (213) 346-3000, fax (213) 346-3030. Web 1-800-655-PCCI. 5034, e-mail: [email protected]. Contact site: www.nera.com. We create strategies, studies, Scott Mowrey. Specialties: consultants who provide reports, expert testimony, and often, policy recom- extensive experience, litigation support and expert mendations that reflect our specialization in industrial testimony regarding forensic accountants, fraud in- and financial economics. NERA economists devise vestigations, economic damages, business valua- practical solutions to highly complex business and PACIFIC CONSTRUCTION tions, family law, bankruptcy, and reorganization. De- legal issues arising from competition, regulation, grees/license: CPAs, CFEs, MBAs. See display ad public policy, e-commerce and strategic business CONSULTANTS, INC. on page 64. decision making. We are recognized for our work in antitrust/competition policy, market strategy and de- DELOITTE & TOUCHE LLP sign, including auction design and strategy, as well 350 South Grand Avenue, Los Angeles, CA 90071, as regulation, valuation, risk assessment and com- (213) 688-4135, fax (213) 673-6719, e-mail: mercial damages and liability in areas including an- [email protected]. Contact Michael Spindler, tirust, intellectual property, labor, and securities, and (213) 688-4135, Stefan Boedeker, (213) 688-4107, product strategy and design. Christian Tregillis, (213) 996-5917, Mimi Justice, (714) 436-7026, Tom Hughes, (619) 237-6583. Our SANLI PASTORE & HILL, INC. highly skilled team is composed of a diverse group 1990 South Bundy Drive, Suite 800, Los Angeles, CA of practitioners—CPAs, Certified Fraud Examiners, 90025, (310) 571-3400, fax (310) 571-3420, Web site statisticians, economists, computer forensic experts, address: www.sphvalue.com. Contact Nevin Sanli business valuation experts, and online research spe- or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- cialists. We also employ former senior law enforce- mier provider of business valuation and valuation ad- ment officials and agents from the FBI and other gov- visory services, specializing in litigation support and ernment agencies. Services available worldwide. expert witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family ECON ONE RESEARCH, INC. limited partnerships), lost profit analysis, mergers 601 West 5th Street, 5th Floor, Los Angeles, CA and acquisitions, goodwill impairment, fairness and 90071, (213) 624-9600, fax (213) 624-6994, e-mail: solvency opinions, ESOPs, incentive stock options, [email protected]. Web site: www.econone.com. capital raises, corporate, partnership, and marital Contact Lisa Skylar, general manager. Econ One dissolutions. Comprehensive economic, industry, is an economic research and consulting firm of over and market research. Extensive experience in expert 40 professionals with extensive experience with the witness testimony, pretrial preparation, and settle- litigation process. We understand the need for clear, ment negotiations. See display ad on page 61. accurate, persuasive answers to complex problems. We work with our clients to keep our efforts focused on necessary tasks, with close attention to costs. We EDUCATION / PUBLIC POLICY provide economic analysis and expert testimony in SAGE INSTITUTE, INC. many areas, including: antitrust, contract disputes, 2801 Townsgate Road, Suite 213, Westlake damages analysis/calculations, intellectual property Village, CA 91361, (805) 497-8557, fax (805) 496- and patent infringement, market analysis, regulation, 4939, e-mail: [email protected]. Web site: www stock price analysis and unfair competition. Industry .sageii.com. Contact Dr. Joel Kirschenstein. Pro- specialties include energy, biotechnology, computer vides consulting and testimony in public policy plan- hardware and software, manufacturing, telecommu- ning and finance, supervision of instruction, adminis- nications and financial services. trative policies and procedures, developer fee miti- gation, school facilities planning, asset management, FULCRUM FINANCIAL INQUIRY LLP and employer/employee relations. Degrees: BA, MA, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, doctorate, California teaching and administrative cre- CA 90017, (213) 787-4000, fax (213) 787-4144, dentials. President, Sage Institute Inc. e-mail: [email protected]. Web site: www .fulcruminquiry.com. Contact David Nolte. Fulcrum’s analysis and research, combined with unique pre-

66 LOS ANGELES LAWYER / NOVEMBER 2003 ELECTRICAL ENGINEERING amination of documents, and expert testimony.

CTG FORENSICS, INC. BRIAN H. KLEINER, PhD 16 Technology Drive, Suite 109, Irvine, CA 92618, Professor of Human Resource Management, Califor- (949) 790-0010, fax (949) 790-0020, e-mail: mlewis nia State University, 800 North State College Boule- @ctg-net.com. Web site: www.ctgforensics.com. vard, LH-640, Fullerton, CA 92834, (714) 879-9705, Contact Dr. Malcolm Lewis, PE. Construction re- fax (714) 879-5600. Contact Brian H. Kleiner, PhD. lated engineering, plumbing, mechanical (heating, Specializations include wrongful termination, discrim- ventilating, A/C) and electrical (power, lighting), en- ination, sexual harassment, ADA, evaluation of poli- ergy systems, residential and nonresidential build- cies and practices, reasonable care, progressive ings, construction defects, construction claims, and discipline, conducting third party workplace investi- mold. gations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/FMLA, compensation, ELECTRONIC DISCOVERY wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over COMPUTER FORENSICS INC.™ 500 publications. Five-time winner of CSUF Meritori- 1749 Dexter Avenue North, Seattle, WA 98109, (206) ous Performance Award. Extensive experience giv- 324-6232, fax (206) 322-7318, e-mail: dstenhouse ing testimony effectively. @forensics.com. Web site: www.forensics.com. Contact David P. Stenhouse, director of opera- STEPHEN J. MOREWITZ, PhD & tions. Our services encompass every aspect of digi- ASSOCIATES tal data discovery, including tape restoration, foren- 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- sic imaging, domestic and international data cap- 1587, fax (818) 345-9981, e-mail: morewitz@earthlink ture, data analysis, electronic discovery planning, .net. Web site: http//home.earthlink.net/~morewitz/. testimony, and e-risk management consulting. Since Contact Dr. Steve Morewitz. Disability and sexual 1994, we have served as court-appointed and client- harassment. Evaluates disability and sexual harass- retained experts on diverse cases, including trade ment. Provides other experts. Eighteen years of ex- secret theft, employment, business, and antitrust liti- perience. Professor and dean, author of three books gation, and have special expertise in dealing with and over 60 abstracts and articles. complex and class action litigation. EMPLOYMENT/SEXUAL HARASSMENT EMPLOYMENT WORKPLACE RESOLUTIONS BIDDLE CONSULTING GROUP, INC. 3420 East Shea Boulevard, Suite 243, Phoenix, AZ 2868 Prospect Park Drive, Suite 110, Rancho Cor- 85028, (602) 953-5322, fax (602) 953-5323, e-mail: dova, CA 95670, (916) 266-6722, ext. 113, fax (916) [email protected]. Contact Richard 266-4170, e-mail: [email protected]. Web site: www Fincher. Services available as a consulting or expert .biddle.com. Contact Dan Biddle, PhD, president. witness in employment litigation, including matters We specialize in test development, EEO/AA reviews, involving race, gender, age, disability, and sexual validation studies (content, criterion-related), and ad- harassment discrimination. Also serve as expert wit- verse impact analyses. We have a special emphasis ness in matters involving workplace torts, arbitration, in the protective service fields. Over 30 staff. De- labor relations, duty of care on employers, best prac- grees/licenses: MA, PhD, other staff with various de- tices in human resources, future employability, and grees. economic damages. Substantial experience in examining complex records, developing trial strategy, writ- G. GOVINE CONSULTING ing expert reports, serving in depositions, and testify- 260 North Mar Vista, Suite #2, Pasadena, CA 91106- ing at trial. Former career experience as a senior in- 1413, (626) 564-0502, fax (626) 564-8702, e-mail: G. GOVINE CONSULTING house employment counsel and Human Resource [email protected]. Web site: www.info executive. Licensed in California and Illinois. Exten- @govineconsults.com. Contact Dr. Gerda Govine. sive references from plaintiff and defense counsel. Developing the Workforce for the 21st Century Specializes in employment discrimination, wrongful termination, deposition preparation, age discrimina- LITIGATION CONSULTANT EMPLOYMENT/WAGE EARNING tion, communications, training and analysis, evalua- CAPACITY AND EXPERT WITNESS: tion of human resource policies, practices, proce- EMPLOYMENT dures, forms, handbooks, systems, and evaluation of JUNE HAGEN, PhD, MFT, CDMS, ABVE sexual harassment matters. Practices of employment 3760 Motor Avenue, #317, Los Angeles, CA 90034, discrimination, deposition preparation, and media- (310) 838-8804, fax (310) 838-8870, e-mail: SPECIALIZES IN: tion. See display ad on page 67. [email protected]. Web site: www.junehagen ✔ SEXUAL HARASSMENT .com. June Hagen PhD, CDMS, MFT, ABVE. Ser- ✔ HAIGHT CONSULTING vices available: Vocational evaluations and expert EMPLOYMENT DISCRIMINATION: 1726 Palisades Drive, Pacific Palisades, CA 90272, opinion regarding loss of earnings/earning capacity. AGE, RACE, SEX (310) 454-2988, fax (310) 454-4516. Contact Marcia Labor market analysis. Reports and testimony for lia- ✔ Haight. Human resources expert knowledgeable in bility, wrongful termination, marital dissolution, dis- HUMAN RESOURCES AND both federal and California law. Twenty-five years’ ability, sexual harassment, and age discrimination EMPLOYMENT PRACTICES corporate human resources management experi- cases. ✔ ence plus over 14 years as a Human Resources WRONGFUL TERMINATION Compliance Consultant in California. Specializations PERSONNEL SYSTEMS ASSOCIATES, INC. ✔ DEPOSITION PREPARATION include sexual harassment, ADA/disability discrimi- 7551 East Moonridge Lane, Anaheim, CA 92808, ✔ nation, other Title VII and FEHA discrimination and MEDIATION (714) 281-8337, fax (714) 281-2949, e-mail: mding harassment, retaliation, FMLA/CFRA, safety and @personnelsystems.com. Web site: www wrongful termination. Courtroom testimony and de- .personnelsystems.com. Contact Mae Lon Ding, DR. GERDA GOVINE position experience. Retained 60% for defense, 40% MBA, CCP. Expert witness in employment, business 260 N. MAR VISTA, SUITE NO. 2 for plaintiff. Audit employer’s actions in preventing dispute, disability, and divorce cases involving is- PASADENA, CA 91106 and resolving discrimination, harassment, and retali- sues of employee or owner compensation, discrimi- ation issues. Assess human resources policies and EL nation, wrongful termination, exemption from over- T : 626/564-0502 practices for soundness, for comparison to prevail- time, labor market/employability, lost wages/benefits, FAX: 626/564-8702 ing practices, and for compliance. Evaluate effec- employee performance, and evaluation of personnel 800-564-0501 tiveness of employer investigations. Assist counsel policies and practices. Nationally recognized human via preliminary case analysis, discovery strategy, ex- www.govineconsults.com resource management and compensation consul-

LOS ANGELES LAWYER / NOVEMBER 2003 67 EXPERT WITNESS • PSYCHIATRY tant, speaker, author of book and articles, university product analysis. Funded by NHTSA and CDC, Navy GILBERG, ARNOLD L., M.D., PH.D instructor. Quoted in Los Angeles Times, Orange and Army and National Health studies in impact in- County Register, Business Week, Workforce, and jury to Navy pilots, dummies, and surrogates in high- Working Woman. Over 12 years of testifying in cases speed sleds for human tolerance. Investigated hun- • Appointed to Medical Board of California (11th district MORC) by Governors Brown, Jr., involving major national organizations in a large vari- dreds of frontal, rollover, side crash and rear-end ac- Dukmejian, and Wilson (1982-1991) ety of industries involving multiple plaintiffs. MBA, cidents. 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LOS ANGELES LAWYER / NOVEMBER 2003 71 FULCRUM FINANCIAL INQUIRY LLP dissolutions. Comprehensive economic, industry, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, and market research. Extensive experience in expert EXPERT WITNESS CA 90017, (213) 787-4000, fax (213) 787-4144, witness testimony, pretrial preparation, and settle- e-mail: [email protected]. Web site: www ment negotiations. See display ad on page 61. .fulcruminquiry.com. Contact David Nolte. Fulcrum’s INDUSTRIAL/COMMERCIAL analysis and research, combined with unique pre- FINGERPRINTS REAL ESTATE sentation techniques, have resulted in an unequaled FORENSIC IDENTIFICATION SERVICES Care, Duty & Broker Responsibility track record in successful court cases and client re- coveries. Our expertise encompasses damages (866) 664-2600, fax (415) 664-2615, e-mail: forensicid Lease & Purchase Contracts analysis, lost profit studies, business and intangible @earthlink.net. 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GLENDALE BLVD., SUITE 101, LOS ANGELES 90026 Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, 726 West Angus Avenue, Unit B, Orange, CA 92868, ownership disputes, economic analysis, business (714) 283-9284, fax (714) 283-9286, e-mail: schultheis valuation, lost profits analysis, fraud/forensic investi- @earthlink.net. Contact Rick Schultheis. Forensic gations, taxation, personal injury, wrongful termina- engineering/fire analysis, electrical, natural gas and tion, professional liability, and expert cross examina- propane systems, testing, and product analysis. tion. Extensive public speaking background assists Thirty years of consulting and court experience. in courtroom presentations. Postgraduate studies in fire protection engineering. Area of expertise: product defense. Degrees/li- MIOD AND COMPANY, LLP CPAS censes: BSME, CFI. 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax FORENSIC ACCOUNTING (818) 898-9922, 74-478 Highway 111, Suite 254, BALLENGER, CLEVELAND & ISSA, LLC Palm Desert, CA 92260, (760) 779-0990, fax (760) 10990 Wilshire Boulevard, 16th Floor, Los Angeles, 779-0960, e-mail: [email protected]. Visit our CA 90024, (310) 873-1717, fax (310) 873-6600. Web site at www.miod-cpa.com. Contact Donald Contact Bruce W. Ballenger, CPA, executive man- John Miod, CPA, ABV, CVA, CBA. More than 30 aging director. Services available: assist counsel in years’ experience in litigation support, including determining overall strategy. Help evaluate deposi- computation of income available for support, tracing, tions and evidence. Provide well-prepared, well-doc- business valuations, fraud investigations, earnings umented, and persuasive in-court testimony regard- loss calculations, and income tax matters. Our firm is ing complicated accounting, financial, and business very computer-oriented, involving the use of com- valuation matters, fairness of interest rates, feasibility puter graphics. We are members of the Institute of of reorganization plans, fraudulent conveyances, Business Appraisers, the International Society of bankruptcies, mergers and acquisitions, and man- CPAs (founding member), the American Institute of agement misfeasance/malfeasance. More than 100 CPAs, and California Society of CPAs. See display open-court testimonies, federal and state, civil and ad on page 50. criminal. See display ad on page 52.

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72 LOS ANGELES LAWYER / NOVEMBER 2003 fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses evidence to resolve allegations. We provide expert wit- ROOFING EXPERT/CONSULTANT ness testimony and implement fraud prevention programs. VLS Is Celebrating 50 Years of Quality Service! Complete litigation support services, including evaluations and pre-trial FORENSIC COMPUTER EXAMINER ROOFING research, safety requirement analysis. DATACHASERS, INC. P.O. Box 2861, Riverside, CA 92516-2861, (909) Experienced with deposition and trial 780-7892, fax (909) 780-9199, e-mail: rick ALLENCONSULTANT JACOBY testimony. @datachaserinc.com. Web site: www.dataChasersInc .com. Contact Rick Albee. Certified forensic computer evidence service, recovery of hidden or Over 40 Years Experience, Roofing & Waterproofing deleted files, e-mail, graphics, Internet activity, etc. PRESIDENT, BURTECH ROOFING CONSULTANTS Expert witness testimony. Computer examinations for trade secret discrepancy, discovery evidence, phone 818-999-1941 fax 818-999-1143 e-mail [email protected] (imaging, assessment, auditing, and validation of all discovery evidence), postemployment exams, wrongful termination defense, domestic relations, or any suspected computer use, vulnerability, and threat assessment. Scope of examinations tailored to the client’s needs. Many years of public sector expe- GARY ORDOG, MD rience at the state and local levels. Our experts are certified by recognized training disciplines, including IACIS and SEARCH. See display ad on page 21. (FACEP, FAACT, FABME, FABFE, FABPS)

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LOS ANGELES LAWYER / NOVEMBER 2003 73 INFERTILITY modeling to courts and corporate/public litigants in INTELLECTUAL PROPERTY land use, real estate development, environmental GIL N. MILEIKOWSKY, MD protection, mass tort (including toxic tort), insurance, SANLI PASTORE & HILL, INC. 1 Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly finance, housing, minority rights, education, and em- 1990 South Bundy Drive, Suite 800, Los Angeles, CA Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858- ployment cases. Degrees/license: MBAs, PhDs, cert. 90025, (310) 571-3400, fax (310) 571-3420, Web site 1300 or (818) 981-1888, fax (310) 858-1303 or fax planners, MPAs, MCPs. address: www.sphvalue.com. Contact Nevin Sanli (818) 981-1994. Contact Gil N. Mileikowsky, MD, or Tom Pastore. Sanli Pastore & Hill, Inc. is a pre- OB/GYN. IVF, laser surgery, laparoscopy, and repro- LAUNIE ASSOCIATES, INC. mier provider of business valuation and valuation ad- ductive endocrinology. 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— EMERGENCY MEDICINE EXPERT—

BRUCE WAPEN, MD, FACEP YOUR EXPERT FOR MALPRACTICE LITIGATION ARISING FROM THE EMERGENCY DEPARTMENT

• 28 years in Emergency Medicine • Experience with cases for both plaintiff and defense • Accomplished at deposition and trial testimony • Teaching experience with Stanford, U.C. Davis, and Letterman Army Medical Center

www.drwapen.com TEL (650) 577-8635 • FAX (650) 577-0191 969-G EDGEWATER BOULEVARD #807, FOSTER CITY, CA 94404-3760

76 LOS ANGELES LAWYER / NOVEMBER 2003 ology Young Investigator (1997), UCLA Neurology IMEs, and workers’ compensation evaluations. He Teaching Awards (1994, 1996), American Academy provides orthopedic-related case reviews and expert Neurology Research (1991), Brown University Sigmax medical testimony for defense/plaintiff law firms and (1989), and research/publications (14), lectures (138). insurance carriers. Testimony experience includes litigation, arbitration, and mediation. MEDICAL/PATHOLOGY LESTHER WINKLER, MD LESTHER WINKLER, MD Encino-Tarzana Regional Medicine Center Patholo- Encino-Tarzana Regional Medicine Center Patholo- gist. (retired; retained as consulting emeritus status) gist. (retired; retained as consulting emeritus status) 10155 Topeka Drive, Northridge, CA 91324, (818) 10155 Topeka Drive, Northridge, CA 91324, (818) 349-8568, fax (818) 993-9701. Contact Lesther 349-8568, fax (818) 993-9701. Contact Lesther Winkler, MD. Specialties: surgical and autopsy Winkler, MD. Specialties: surgical and autopsy pathology, clinical pathology. Forty years’ experi- pathology, clinical pathology. Forty years’ experience in general review of medical records (hospital ence in general review of medical records (hospital records, office records, etc.) with emphasis on records, office records, etc.) with emphasis on pathology aspects, gross and microscopic, and rela- pathology aspects, gross and microscopic, and relationships to general medical and hospital care. Ex- tionships to general medical and hospital care. Ex- perience with hospital bylaws, rules, and regulations, perience with hospital bylaws, rules, and regulations, consent issues, medical staff privileges, etc. Also ex- consent issues, medical staff privileges, etc. Also experienced in hospital healthcare law, medical hospi- perienced in hospital healthcare law, medical hospital and “outside” ethical medical issues. Repre- tal and “outside” ethical medical issues. Repre- sented physicians in matters before California Med- sented physicians in matters before California Med- ical Board Ethics committees. Helped establish con- ical Board Ethics committees. Helped establish concepts and chaired hospital committees for more than cepts and chaired hospital committees for more than 10 years, general review of medical and surgical 10 years, general review of medical and surgical case management, etc. Have reviewed approxi- case management, etc. Have reviewed approximately equal number of cases for defense and for mately equal number of cases for defense and for plaintiff attorneys in medical professional liability plaintiff attorneys in medical professional liability matters. Degrees/licenses: MD. maters. Degrees/licenses: MD. BRUCE WAPEN, MD MEDICAL MALPRACTICE EMERGENCY MEDICINE EXPERT 969-G Edgewater Boulevard, Suite 807, Foster City, FYLER ASSOCIATES—LEGAL NURSE CA 94404-3760, (650) 577-8635, fax (650) 577-0191, CONSULTANTS e-mail: [email protected]. Web site: 2138 Westmoreland Drive, Brea, CA 92821, (800) www.DrWapen.com. Contact Bruce Wapen, MD. 995-4279, fax (714) 990-4629, e-mail: brea2@aol Board-certified emergency physician and experi- .com. Web site: www.fyler.com. Contact Patricia enced public speaker offers consultation, chart re- Fyler RN. Virtually all nursing specialties. Expert wit- view, and testimony as an expert witness for plaintiff nesses, case screening and development, summary or defense involving litigation arising from the emer- and chronology, plaintiff or defense, life care planning, gency department. See display ad on page 76. DME, and deposition attendance. Throughout Califor- EDMONDS ASSOCIATES nia. If there is a medical component we can help. MEDICAL TOXICOLOGY CONSULTANTS, INC. J. CARLOS MAGGI, MD GARY J. ORDOG, MD Memorial/Miller Children’s Hospital. 2801 Atlantic P/Professor, UCLA/Drew School, 23206 Lyons CONSTRUCTION CONSULTANT Avenue, Long Beach, CA 90815, (562) 933-8743, fax Avenue, Suite 104, Santa Clarita, CA 91321, (661) EXPERT WITNESS (562) 933-8744, e-mail: [email protected]. 799-1689, fax (661) 799-3453, e-mail: drordog Contact April Johnson. Pediatric pulmonary, pedi- @earthlink.net. Web site: http://dwp.bigplanet.com Discovery | Analysis | Consultation | Testimony atric critical care, pediatric hospital care, pediatric /toxic. Contact Gary J. Ordog, MD. Board-certified emergencies and resuscitation, pediatric trauma and medical toxicologist. Board-certified emergency Defect; Care, Custom & burns, and intoxications. medicine specialist. Medical/legal expert on environ- Practice; Delay/Acceler- ment exposures, stachybotrys and other building-re- ation Cause and Effect; RONALD H. ONKIN, MD lated molds, poisonings, snake/insect/animal bites, Construction Costs: For- 16055 Ventura Boulevard, Suite 603, Encino, CA and fetal toxicology. Author of major textbook, Ellen- ensic, Remedial and Cur- 91436, (818) 783-6677, fax (818) 344-6930. Board- horn’s Medical Toxicology, the most significant refer- rent; Management, Cons- certified psychiatrist. QME peer review for liability in- ence text on this subject. Available for medical treat- tructability, Accidents, In- surance companies, evaluations and testimony in ment, consultation, chart review, and expert witness. surance Bad Faith criminal, medical malpractice, personal injury, and Degrees/license: MD (CA), FACEP, FAACT, FABFE, workers’ compensation. Specializes in preparing at- Solid background in Gen- FABME. See professional announcement on eral Contracting (Build- torneys and witnesses for depositions and court ap- page 73. pearances. Excellent psychopharmacology evalua- ing, site and gen. Engrg; hard bid and negotiated; tions, and individual and family psychotherapy, JONATHAN S. RUTCHIK, MD, MPH, QME union and open shop; PTSD, sexual harassment, alcohol and chemical de- 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA standard and design-build industrial, commercial, pendence, immigration, and wrongful termination. 94941, (415) 381-3133, fax (415) 381-3131, e-mail: residential, office, institutional, water treatment, [email protected]. Web site: www.neoma.com. site development, grading. GRAHAM A. PURCELL, MD, INC. Jonathan S. Rutchik, MD, MPH is a physician who is 3600 Wrightwood Drive, Studio City, CA 91604, (818) board certified in both Neurology and Occupational 985-3051, fax (818) 985-3049, e-mail: gpurcellmd and Environmental Medicine. He provides clinical REX T. EDMONDS @earthlink.net. Web site: www.expert4law.org. evaluations and treatment, including electromyogra- 5020 Campus Drive Contact Graham A. Purcell, MD. Types of expert phy, of individuals and populations with suspected Newport Beach, CA 92660 witness: orthopedic surgeon, subspecialty spinal dis- neurological illness secondary to workplace injuries orders. Dr. Purcell is a board certified orthopedic or chemical exposure. Services include medical TEL: 949/250-8858 • FAX: 760/591-0733 surgeon (sub-specialty spinal disorders) currently record and utilization review and consulting to indus- E-MAIL: [email protected] practicing in the Los Angeles community. He is a trial, legal, government, pharmaceutical, and acade- edmondsconsultants.com clinical assistant professor of orthopedics at UCLA. mic institutions on topics such as metals and sol- Bachelor Of Science, Civil Engineering Being active in the malpractice arena for 13 years, vents, mold illness, Baychol issues, Persian Gulf War Certified Professional Estimator, ASPE Dr. Purcell is a qualified medical evaluator (QME) syndrome, musicians’ injuries, and others. See dis- California Licensed Contractor, B. #692273 and has extensive experience in performing AMEs, play ad on page 71.

LOS ANGELES LAWYER / NOVEMBER 2003 77 METALLURGY 995-4279, fax (714) 990-4629, e-mail: brea2@aol RICHARD C. ROSENBERG, MD .com. Web site: www.fyler.com. Contact Patricia 18370 Burbank Boulevard, Suite 614, Tarzana, CA COATES ENGINEERING SERVICES Fyler RN. Virtually all nursing specialties. Expert wit- 91356, (818) 996-6800, fax (818) 996-2929, e-mail: 4955 Winnetka Avenue, Woodland Hills, CA 91364, nesses, case screening and development, summary [email protected]. Web site: www.drrosenberg.com. (818) 883-5886, fax (818) 883-5887, e-mail: djcoates and chronology, plaintiff or defense, life care plan- Contact Sheri Roberts. Orthopedic surgery, sports @earthlink.net. Contact David J. Coates, PhD, PE. ning, DME, and deposition attendance. Throughout medicine, and physical therapy. Experienced in IME, Failure analysis, metallurgical engineering, corrosion, California. If there is a medical component we can QME, agreed medical exams, med/legal reports, and products liability, aircraft, automobiles, bicycles, help. expert witness testimony. Personal injury and work- tools, chairs, ladders, medical implants, and copper er’s compensation. Additional office in Oxnard, and galvanized steel plumbing. Experienced testifier. MED-LINK California. Call for additional information and CV. 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) 333-5110, fax (626) 968-0064, e-mail: dorothy PERSONAL INJURY KARS ADVANCED MATERIALS, INC. @unidial.com. Contact Dorothy Pollock, LNCC. Testing and Research Labs, 7271-CD Garden Grove Registered nurse with 35 years’ clinical experience HAYNIE & COMPANY, CPAS Boulevard, Garden Grove, CA 92841, (714) 892- and 30 years’ surgical experience. Nontestifying ser- 4910 Campus Drive, Newport Beach, CA 92660, 8987, fax (714) 894-0225, e-mail: [email protected]. vices include case analysis/for merit, chronology, (949) 724-1880, fax (949) 724-1889, e-mail: Web site: www.karslab.com. Contact Drs. Ramesh translation, written reports, medical record organiza- [email protected]. Web site: www J. Kar or Naresh J. Kar. Southern California’s pre- tion, billing fraud investigation; DME/IME accompani- .hayniecpa.com. Contact Steven C. Gabrielson. mier materials/mechanical/metallurgical/structural/ ment including tape recording and written report. Ex- Alter ego, consulting and expert witness testimony in forensics laboratory. Registered professional engi- pert witness and testifying services including affi- a variety of practice areas: commercial damages, neers with 20-plus years in metallurgical/forensic/ davit, arbitration, declaration, deposition, and trial. ownership disputes, economic analysis, business structural failure analysis. 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(818) 981-1994. Contact Gil N. Mileikowsky, MD, 91436, (818) 783-6677, fax (818) 344-6930. Board- OB/GYN. IVF, laser surgery, laparoscopy, and repro- certified psychiatrist. QME peer review for liability in- METALLURGICAL AND CORROSION ductive endocrinology. Diplomate, board certified by surance companies, evaluations and testimony in ENGINEER the American Board of OB/GYN. Board eligible, criminal, medical malpractice, personal injury, and American Board of Reproductive Endocrinology Divi- workers’ compensation. Specializes in preparing at- KARS ADVANCED MATERIALS, INC. sion. Fellow, American College of OB/GYN. Member torneys and witnesses for depositions and court ap- Testing and Research Labs, 7271-CD Garden Grove of the American Society for Reproductive Medicine, pearances. Excellent psychopharmacology evalua- Boulevard, Garden Grove, CA 92841, (714) 892- Society of Assisted Reproductive Technologies, for- tions, and individual and family psychotherapy, 8987, fax (714) 894-0225, e-mail: [email protected]. mer Medical Director IVF (In Vitro Fertilization) at PTSD, sexual harassment, alcohol and chemical de- Web site: www.karslab.com. Contact Drs. Ramesh Northridge Hospital, former Chairman Laser and pendence, immigration, and wrongful termination. J. Kar or Naresh J. Kar. Southern California’s pre- Safety Committee at Northridge Hospital and mem- mier materials/mechanical/metallurgical/structural/ ber of the Los Angeles County Medical Association. WHITE, ZUCKERMAN, WARSAVSKY, LUNA forensics laboratory. Registered professional engi- Author, numerous scientific papers and articles pub- & WOLF neers with 20-plus years in metallurgical/forensic/ lished in peer review journals. Clinical assistant pro- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, structural failure analysis. Experienced with automo- fessor, OB/GYN at UCLA. See display ad on CA 91423, (818) 981-4226, fax (818) 981-4278, and tive, bicycles, tires, fire, paint, plumbing, corrosion, page 61. 333 City Boulevard West, 17th Floor, Orange, CA and structural failures. We work on both plaintiff and 92868, (714) 939-1781, fax (714) 938-3874, e-mail: defendant cases. Complete in-house capabilities for OIL & GAS FACILITIES [email protected]. Contact Barbara Luna, Drew tests. Extensive deposition and courtroom experi- Hunt, Paul White, Jack Zuckerman, Fred ence (civil and criminal investigations). Principals are RANDALL CONSULTANTS Warsavsky, and Bill Wolf. Expert witness testimony fellows of American Society for Metals and board- 960 Berry Avenue, Los Altos, CA 94024, (650) 960- for business, real estate, personal injury, and marital certified diplomates, American Board of Forensic 1078, fax (650) 961-4050. Contact Warren O. dissolution. Investigative analysis of liability, damage Examiners. See display ad on page 61. Carlson. Expert consultant for pipelines and oil and analysis of lost profits and earnings, fraud investiga- gas facilities. I am a graduate professional engineer tion, business and real estate valuation, tax planning NETWORKS with more than 40 years’ experience in design, pro- and preparation and mergers and acquisitions. Hun- curement, construction, operations, and mainte- dreds of times as expert witnesses. Prior “Big Four” LEGAL FRIENDLY TECHNOLOGIES nance of petroleum facilities. This includes pipelines, accounting firm experience. Specialties include ac- (800) 475-4565, e-mail: [email protected]. pumps, storage tanks, meters, regulators, controls, counting, antitrust, breach of contract, business in- Web site: www.legalfriendly.com. Preeminent law of- and instruments. terruption, business dissolution, construction, fraud fice technology firm. Legal Friendly integrates 20 law investigation, asset tracing analysis, intellectual office technologies into supporting the management ORTHOPEDIC SURGEON property, product liability, real estate, spousal sup- and practice of law. Legal Friendly is a contributing port, tax, valuation of businesses and real estate, un- GRAHAM A. PURCELL, MD, INC. author for the L.A. Bar Association’s Computer Coun- fair advertising, unfair competition, and wrongful ter- selor section of Los Angeles Lawyer magazine and 3600 Wrightwood Drive, Studio City, CA 91604, (818) mination. See display ad on page 51. L.A. Paralegal Association Reporter Technology Cor- 985-3051, fax (818) 985-3049, e-mail:gpurcellmd @earthlink.com. Web site: www.expert4law.org. ner. ABA compliant Web pages, networks, data dis- PLASTIC AND COSMETIC RECON- covery and data recovery, remote communication, Contact Graham A. Purcell, MD. Types of expert STRUCTIVE SURGERY employee training programs, courtroom multimedia witness: orthopedic surgeon, subspecialty spinal dis- animation and presentation, document depositories, orders. Dr. Purcell is a board certified orthopedic JEFFREY L. ROSENBERG, MD database programming and support, expert witness, surgeon (sub-specialty spinal disorders) currently 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA and inter alia. The importance of law firm technology practicing in the Los Angeles community. He is a 90017, (213) 977-0257, fax (213) 977-0501. Contact cannot be overstated. Proper legal technology can clinical assistant professor of orthopedics at UCLA. Martha. Plastic and reconstructive surgery, burn win litigation, attract clients, reduce costs, and im- Being active in the malpractice arena for 13 years, specialist. Diplomate, American Board of Plastic prove reputations. “Engineers that think LAW.” Dr. Purcell is a qualified medical evaluator (QME) Surgery. Member, American Burn Association and and has extensive experience in performing AMEs, American Society of Plastic Surgeons. NURSING IMEs, and workers’ compensation evaluations. He provides orthopedic-related case reviews and expert FYLER ASSOCIATES—LEGAL NURSE medical testimony for defense/plaintiff law firms and CONSULTANTS insurance carriers. Testimony experience includes 2138 Westmoreland Drive, Brea, CA 92821, (800) litigation, arbitration, and mediation.

78 LOS ANGELES LAWYER / NOVEMBER 2003 CAROLE LIEBERMAN, M.D., M.P.H.

PSYCHIATRIST EXPERT WITNESS LEGAL CONSULTANT

Winning record in Civil & Criminal Cases!!!

ALL cases (Plaintiff & Defense) involving psychiatric issues/emotional distress, including: • High Proﬁle Cases • Entertainment Law/Media Copycats • Sexual Harassment • Discrimination/Wrongful Termination • Divorce/Custody • Abuse: Sexual, Physical & Emotional • Malpractice/Wrongful Death • Child/Adolescent issues • Personal Injury/Equestrian/Other Sports • Terrorism/Violence • Priest Misconduct

PRIOR CASES include: People v. Jonathan Schmitz (Jenny Jones Talk Show Murder Trial) • BOARD CERTIFIED PSYCHIATRIST Tate v. Larry Johnson/Stacey Augman (NBA paternity and assault) • CLINICAL FACULTY U.C.L..A. Roseanne Barr v. Tom Arnold • CA MEDICAL BOARD Jean Claude Van Damme divorce EXPERT Jasmer v. Geraldo (emotional distress) • CONSULTANT TO CONGRESS Reifschneider v. UC Regents (sexual harassment) & MEDIA High School Shooting cases: Families v. Media Psych out the opposition!

247 South Beverly Drive, Suite 202, Beverly Hills, CA 90212 (310) 278-5433 and (310) 456-2458 • [email protected]

(Please see reverse for recommendations from attorneys)LOS ANGELES LAWYER / NOVEMBER 2003 79 POLYGRAPH/LIE DETECTION/ PSYCHIATRY/PSYCHOLOGY in full-time clinical practice provides testimony re- INVESTIGATION garding emotional damages, psychotherapy mal- BARRINGTON PSYCHIATRIC CENTER practice and sexual harassment. Objective evalua- JACK TRIMARCO & ASSOCIATES 1990 South Bundy Drive, Suite 320, Los Angeles, CA tion of conditions such as malingering, borderline POLYGRAPH 90025, (310) 826-3235, fax (310) 447-0840. Contact personality disorder, and PTSD using psychological 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA David Gyepes, JD, PhD. Full range of civil litigation testing. Consultation regarding sexual harassment in 90212, (310) 247-2637, fax (805) 383-9973, e-mail: evaluation, sexual harassment, wrongful termination, the workplace and claims of inappropriate sexual [email protected]. Contact Jack Trimarco. I have personal injury, neuropsychology, posttraumatic contact between therapist and patient. Many publi- reviewed polygraph from many perspectives…as an stress disorders, child psychiatry/psychology, mal- cations in peer reviewed journals. Santa Monica of- inspector examiner, as a trainer, and as program practice, mold and toxic exposures, and Americans fice. Defense and plaintiff. manager of the FBI’s Polygraph Program in Los An- with (mental) disabilities claims. Litigation consulta- geles. I am the former Inspector General for the De- tion regarding case planning, record review, and be- KATHLEEN M. ZECHMEISTER, PhD partment of Energy Polygraph Program. This unique hind-the-scenes case preparation. Expert witness 3020 Old Ranch Parkway, Suite 300, Seal Beach, CA background allows me to bring the highest levels of testimony in which the right expert is matched to the 90740-2752, (562) 493-2155, fax (562) 431-6637. integrity, service, and expertise to any polygraph sit- case. Web site: www.competitiveminddoctor.com. Contact uation. Service area: national. See display ad on Kathleen M. Zechmeister, PhD. Expert profile: page 40. BIDDLE CONSULTING GROUP, INC. areas of expertise include psychological effects of 2868 Prospect Park Drive, Suite 110, Rancho athletic accidents/injuries and post traumatic stress PRISON MEDICINE Cordova, CA 95670, (916) 266-6722, ext. 113, fax disorder associated with injuries. Dr. Zechmeister (916) 266-4170, e-mail: [email protected]. Web site: has been in private practice since 1986, has con- COREY WEINSTEIN, MD, CCHP www.biddle.com. Contact Dan Biddle, PhD., presi- sulted on approximately 50 legal cases and is expe- 1199 Sanchez Street, San Francisco, CA 94114, dent. We specialize in test development, EEO/AA re- rienced with deposition and courtroom testimony. (415) 333-8228, e-mail: [email protected]. Services views, validation studies (content, criterion-related), She has a PhD in clinical psychology and is a diplo- available: jail and prison medicine, correctional med- and adverse impact analyses. We have a special mate of the American College of Forensic Examiners. ical care delivery, correctional medical standards, emphasis in the protective service fields. Over 30 Areas of expertise: clinical psychology, posttrau- correctional medical policies and procedures, med- staff. Degrees/licenses: MA, PhD, other staff with var- matic stress disorder, sports injury psychology, and ical neglect in jail and prison, health effects of control ious degrees. sports psychology. unit prisons, in-custody suicide and death, restraint procedures, and pepper spray. Thirty years of expe- JOHN DEIRMENJIAN, MD PUBLISHING rience in general and family medicine. Member of Board certified forensic psychiatrist. Assistant clini- task force that wrote the American Public Health As- cal professor, UCLA School of Medicine. 249 East BAY SHERMAN CRAIG & GOLDSTEIN, LLP sociation Standards for Health Services in Correc- Ocean Boulevard, Suite 325, Long Beach, CA 11845 West Olympic Boulevard, Suite 845, Los An- tional Institutions (2003). Primary consultant for Im- 90802. Also practices in Glendale, CA. (562) 901- geles, CA 90064, (310) 477-1400, fax (310) 479- proving Access to Health Care for California’s 0500, fax (562) 901-0501, e-mail: jdeirmen@earthlink 0720, e-mail: [email protected]. Web site: Women Prisoners (UCSC 2001). Expert in federal .net. Expert witness testimony: civil and criminal, in- www.baysherman.com. Contact Peter M. Craig. court on jail medical programs, suicide, and delivery surance evaluations (disability, malpractice, hospital Many legal disputes involve financial, accounting, of medical services in prison. Medical consultant to review, workers’ compensation, record review, psy- and income tax considerations. Bay Sherman Craig Legal Services for Prisoners with Children and Jus- chiatric damages, fitness for duty, wrongful termina- & Goldstein, LLP work together with counsel to re- tice Now. Certified correctional healthcare provider. tion). Criminal expertise includes competency to solve these conflicts. We specialize in intellectual stand trial, sanity evaluation, restoration of sanity, property publishing. In addition to expert witness tes- PROCESS SERVER stalking, Internet crimes, malingering, sex offender timony, we provide the following: services prior to evaluations, diminished capacity, and violence risk trial, financial, accounting and income tax issues de- BENCHMARK INVESTIGATIONS assessment. Expert in geriatric conservatorship and fined, record analysis, economic fact-finding and 32158 Camino Capistrano, # A-415, San Juan testamentary capacity. Expert in divorce and child analysis, deposition preparation assistance, and set- Capistrano, CA 92675, (800) 248-7721, fax (949) custody evaluations. tlement negotiations. 248-0208,e-mail: [email protected]. Web site: www.BenchmarkInvestigations.com. Contact Jim ARNOLD L. GILBERG, MD, PhD QUESTIONED DOCUMENTS Zimmer, CPI. National agency. Professional investi- Associate Clinical Professor of Psychiatry, UCLA gations with emphasis upon accuracy, detail, and School of Medicine, a professional corporation, 9915 DAVID L. OLEKSOW expedience. Asset/financial searches, background Santa Monica Boulevard, Suite 101, Beverly Hills, CA 1901 First Avenue, 1st Floor, San Diego, CA 92101, investigation, DMV searches, domestic/marital 90212, (310) 274-2304, fax (310) 203-0783. Contact (619) 595-7099, fax (619) 238-6122, e-mail: cases, due diligence, process service, Arnold L. Gilberg. Board certified and appointed by [email protected]. Government trained with 29 years surveillance/photograph, witness location, and state- three governors to Medical Board of California 11th of training and experience, all areas of document ex- ments. LA branch plus correspondents nationwide. District MQRC 1982-1991. Certified in psychiatry and amination. Handwriting examination, medical and Multilingual agents. Fully insured. psychoanalysis. All labor law, including workers’ business records exams, wills, anonymous letters, compensation, sexual harassment, wrongful termina- mechanical impressions, product counterfeiting, etc. PROSTHETICS/ORTHOTICS tion—jury selection, personal injury, casualty, and Fully equipped document lab. Specialized training transactional. All civil matters, experienced as expert with FBI and other government and professional BEVERLY HILLS PROSTHETICS witness. Degrees/licenses: M.D., PhD. Licensed in groups. Extensive expert witness testimony in Fed- ORTHOTICS, INC. California and Hawaii. See display ad on page 68. eral and Superior Courts. Retired San Diego Police 6300 Wilshire Boulevard, Suite 150, Los Angeles, Forensic Science Section. Contract QDE exams SD CA 90048, (323) 866-2555, fax (323) 866-2560, RONALD H. ONKIN, MD County DA, US Attorney, CA State Attorney General, e-mail: [email protected]. Web site: www 16055 Ventura Boulevard, Suite 603, Encino, CA Office Fed. Defender and numerous civil attorneys, .bhpoinc.com. Contact Keith Vinnecour, CPO. 91436, (818) 783-6677, fax (818) 344-6930. Board- insurance companies, corps, and law firms. De- Expert witnesstestmony/life’s care plans. certified psychiatrist. QME peer review for liability in- grees/license: certified by the American Board of surance companies, evaluations and testimony in Forensic Document Examiners (D-ABFDE). PSYCHIATRY criminal, medical malpractice, personal injury, and CAROLE LIEBERMAN MD, MPH workers’ compensation. Specializes in preparing at- RILE & HICKS, FORENSIC DOCUMENT 247 South Beverly Drive, Suite 202, Beverly Hills, CA torneys and witnesses for depositions and court ap- EXAMINERS pearances. Excellent psychopharmacology evalua- 90212, (310) 278-5433, (310) 456-2458. Contact HOWARD C. RILE, JR. AND A. FRANK HICKS tions, and individual and family psychotherapy, Carole Lieberman MD, MPH. UCLA forensic psychi- 100 Oceangate, Suite 670, Long Beach, CA 90802- PTSD, sexual harassment, alcohol and chemical de- atrist with winning record of testimony, depositions, 4312, (562) 901-3376, fax (562) 901-3378. Web site: pendence, immigration, and wrongful termination. and evaluations in hundreds of civil and criminal www.asqde.org/rile or /hicks.htm. Diplomates, Ameri- cases including: high-profile, sex harassment, enter- can Board of Forensic Document Examiners. Mem- MARTIN H. WILLIAMS. PhD tainment law, psych and HMO malpractice, divorce, bers, ASQDE, SWAFDE, SAFDE; Fellow AAFS. Com- P.O. Box 62439, Sunnyvale, CA 94088, (888) 225- abuse, custody, wrongful termination, PI, discrimina- bined 55+ years’ experience in examination and 9957, fax (888) 225-9957, e-mail: mw@drmwilliams tion, media copycats, sports and violence. Consul- evaluation of disputed documents, including hand- .com. Web site: www.drmwilliams.com. Contact tant to Congress and the media. See display ad on writing and signatures (wills, deeds, checks, etc.) Martin H. Williams, PhD. Experienced psychologist page 78. medical records, business records, typewriting,

80 LOS ANGELES LAWYER / NOVEMBER 2003 printing, and/or other business machine processes, alterations, indentations, obliterations, and ink and paper questions. Fully equipped darkroom and labo- REAL ESTATE, BANKING, MALPRACTICE ratory, including VSC-4C and ESDA. Testified more than 500 times. See display ad on this page. EXPERT WITNESS – SAMUEL K. FRESHMAN, B.A., J.D. ttorney and Real Estate Broker since 1956 • Banker • Professor • Legal RADIOLOGY A Malpractice • Arbitration • Brokerage • Malpractice • Leases • DISCOVERY DIAGNOSTICS, MEDICAL Syndication • Construction • Property Management • Finance • Due CORPORATION 6200 Wilshire Boulevard, Suite 1008, Los Angeles, Diligence • Conflict of Interest • Title Insurance • Banking • Escrow • CA 90048, (800) 222-6768, (323) 933-5100, fax (323) Expert Witness • 20+ years State & Federal Courts • 21 articles • 933-4966, e-mail: [email protected]. Web addresses: www.themripeople.com, www.msus.com, Arbitrator • Mediator • $300,000,000+ Property www.breader.com. Contact Daniel Powers, MD. Provider of primary diagnostic imaging services such 6151 W. Century Blvd., Suite 300, Los Angeles, CA 90045 as MRI/CT scans in adversarial disputes as well as (310) 410-2300 ■ Fax (310) 410-2919 second opinions and expert testimony. Will review malpractice cases. Take both plaintiff and defense referrals on merit. State-of-the-art technology available throughout California. Liens accepted. Licensed physician in 49 states plus District of Columbia. De- grees/licenses: Board Certified Diagnostic and Nu- clear Radiologist; B reader. See display ad on page 69.

REAL ESTATE

ADVISORS/EXPERTS @ MCS ASSOCIATES 1881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: info @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, and real estate consulting group (established 1973). Experi- enced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analy- REAL ESTATE/REAL PROPERTY MATTERS sis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction Specializations: defects/disputes, and title insurance. Customs & Standards of Practice, Agency Relationships STEPHEN B. FAINSBERT, ESQ., FAINSBERT Material Disclosure in Residential Real Estate Sales MASE & SNYDER, LLP 11835 West Olympic Boulevard, Suite 1100, Los Angeles, CA 90064, (310) 473-6400, fax (310) 473- 8702, e-mail: [email protected]. Contact Stephen B. Fainsbert. Expert testimony in real property exchanges (coauthor CEB publication Real Property Exchanges, 2nd ed.), real estate transactions, standard of care and practice for real estate brokers, escrow, and real estate attorneys, disclo- sures in purchase and sale agreements, real estate financing, and secured real property transactions. TEMMY WALKER, REALTOR® SAMUEL K. FRESHMAN, BA, JD Real Estate Consulting Expert Witnessing 6151 West Century Boulevard, Suite 300, Los Ange- les, CA 90045, (310) 410-2300, fax (310) 410-2919. SERVICES RENDERED: Contact Samuel K. Freshman. Attorney and real Litigation Consulting, Expert Testimony, Broker Practice, estate broker since 1956, banker, professor legal malpractice, arbitration, brokerage malpractice, Liability Audit, Educational Services, Industry Mediator leases, syndication, construction, property management, finance, due diligence, conflict of interest, title Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist, ® insurance, banking, escrow, and development. Ex- California Association of Realtors Director Since 1981, National Association of pert witness 20-plus years in state and federal Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education courts. Twenty-one published articles, arbitrator and Association, Past President, San Fernando Valley Board of Realtors mediator, general partner $300,000 plus, shopping centers, apartment, and industrial property. JD Stan- 5026 Veloz Avenue, Tarzana, California 91356 ford (1956). See display ad on this page. Telephone (818) 760-3355 • Pager (818) 318-2594 FULCRUM FINANCIAL INQUIRY LLP e-mail: [email protected] 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CALIFORNIA BROKER LICENSE NO. 00469980 CA 90017, (213) 787-4000, fax (213) 787-4144, e-mail: [email protected]. Web site: www

LOS ANGELES LAWYER / NOVEMBER 2003 81 .fulcruminquiry.com. Contact David Nolte. Fulcrum’s requirements, agency relationships, and broker su- RESTAURANTS analysis and research, combined with unique pre- pervision. Complete assistance. Extensive transac- sentation techniques, have resulted in an unequaled tion and court experience. Director California Associ- LEON GOTTLIEB track record in successful court cases and client re- ation of Realtors, director of National Association of US-INT’L RESTAURANT, HOTEL & coveries. Our expertise encompasses damages Realtors, master faculty instructor for continuing edu- FRANCHISE CONSULTANT analysis, lost profit studies, business and intangible cation C.A.R. Excellent credentials. See display ad 4601 Sendero Place, Tarzana, CA 91356-4821, USA, asset valuations, appraisals, fraud investigations, on page 81. (818) 757-1131, fax (818) 757-1816, e-mail: lgottlieb statistics, forensic economic analysis, royalty audits, @aol.com. Web site: http://members.aol.com/lgottlieb strategic and market assessments, computer foren- ALAN D. WALLACE, ESQ. /myhomepage/business.html. Specialties: USA/Int’l sic, electronic discovery and analysis of computer- 14011 Ventura Boulevard, Suite 406, Sherman Oaks, restaurant/hotel/franchise experience since 1960. ized data. See display ad on page 2. CA 91423, (818) 501-0133, fax (818) 905-6091. Hands-on consultant and expert witness all types of Contact Alan D. Wallace, Esq. Expert witness and restaurants, franchises, fast food, training, manuals, FULL SERVICE REAL-ESTATE litigation consulting for general real estate matters, safety, security, injury, operating standards, and P&L Planned Space; Thorough Inspection Service including law, custom and practice, agency, disclo- damages. Former VP/Partner IHOP, Director to USA 604 West Las Tunas Drive, San Gabriel, CA 91776, sure, broker malpractice, standards of care for bro- chains, author, arbitrator, and expert witness. (626) 289-3500, cell: (626) 533-8878, e-mai: chucgab kers, buyers and sellers. Broker and attorney. In- @earthlink.net. Contact Charles A. (Chuck) volved as broker in more that 7,500 real estate trans- RETALIATION Gabriels. I perform expert witness testimony in the actions. Department of Real Estate master instructor HAIGHT CONSULTING fields of construction, inspection services, deputy and author, former CAR hotline attorney, university 1726 Palisades Drive, Pacific Palisades, CA 90272, and home inspectors, and real estate. With over 30 law professor in real estate. Successfully testified in (310) 454-2988, fax (310) 454-4516. Contact Marcia years as licensed California real estate broker, 20 dozens of cases. See display ad on page 81. Haight. Human resources expert knowledgeable in years as licensed general contractor, currently 7 both federal and California law. Twenty-five years’ years in inspection industry and member of REAL ESTATE APPRAISAL corporate human resources management experi- C.R.E.I.A., with architectural plus paralegal studies ence plus over 14 years as a Human Resources degrees. I can handle all your needs in above fields. BTI APPRAISAL 605 West Olympic Boulevard, Suite 820, Los Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimi- HAMILTON, RABINOVITZ & ALSCHULER, Angeles, CA 90015, 1829 Highgrove Drive, nation, other Title VII and FEHA discrimination and INC. Escondido, CA 92027, (866) 256-9300, fax (213) harassment, retaliation, FMLA/CFRA, safety and 6033 West Century Boulevard, Suite 890, Los 532-3807, e-mail: [email protected]. Web site: wrongful termination. Courtroom testimony and de- Angeles, CA 90045, voice (310) 645-9000, fax (310) www.btiappraisal.com. Contact Ben F. Tunnell, III, position experience. Retained 60% for defense, 40% 645-8999. E-mail: [email protected]. Contact chairman. We provide litigation and appraisal ser- for plaintiff. Audit employer’s actions in preventing Francine Rabinovitz, PhD, executive vice presi- vices for virtually every purpose in the areas of real and resolving discrimination, harassment, and retali- dent. Public policy, finance, and management con- estate (commercial, industrial and residential), ma- ation issues. Assess human resources policies and sultants providing litigation support, simulation, and chinery and equipment, and business valuations. practices for soundness, for comparison to prevail- modeling to courts and corporate/public litigants in See display ad on page 52. ing practices, and for compliance. Evaluate effec- land use, real estate development, environmental tiveness of employer investigations. Assist counsel protection, mass tort (including toxic tort), insurance, RECEIVER via preliminary case analysis, discovery strategy, ex- finance, housing, minority rights, education, and em- SALTZBURG, RAY & BERGMAN, LLP amination of documents, and expert testimony. ployment cases. Degrees/license: MBAs, PhDs, cert. 12121 Wilshire Boulevard, Suite 600, Los Angeles, planners, MPAs, MCPs. CA 90025, (310) 481-6700, fax (310) 481-6720. ROOFING AND WATERPROOFING Contact David L. Ray, Esq. Specializes in handling JACK KARP/NATIONAL PROPERTIES GROUP complex receivership matters, such as partnership ALLEN JACOBY ROOFING CONSULTANT 31115 Ganado Drive, Rancho Palos Verdes, CA and corporate dissolutions, including law firm disso- 20549 Califa Street, Woodland Hills, CA 91367, (818) 90275, (310) 377-6349, fax (310) 868-2880, e-mail: lutions, and government enforcement receivership 991-1941, fax (818) 999-1143, email:allenjacobyrc [email protected]. Industrial and commercial broker’s actions, such as actions brought by the California @aol.com. Contact Allen Jacoby. Roofing/water- care and duties, professional obligations to clients. Department of Corporations, Department of Real Es- proofing evaluations, failure analysis, litigation sup- Mediation and arbitration between brokers and tate, Commodities Future Trading Commission, and port, and expert witness testimony. President, clients regarding disputes, ethical questions, and fee Federal Trade Commission. Nationally recognized in Burtech Consultants. Member, American Arbitration division. Deal structuring and site location analysis. both the lender and litigation communities as quali- Association. Commercial panel, Construction Specifi- Real estate leases and purchase contracts and their fied to assist in complicated and commercially so- cations Institute. Roof Consultant Institute, CA Con- interpretations. Author AIR Net and Gross Leases phisticated liquidations, reorganizations, and ongo- tractors State License Board Industry Expert Panel. and AIR Standard Offer and Agreement and Escrow ing business operations. Associate member, American Bar Association. See Instruction for Purchase of Real Estate. See display display ad on page 73. ad on page 72. RESTAURANT/HOTEL SCHWARTZ/ROMANO & ASSOCIATES, INC. SCHULZE HAYNES & CO. MAURICE ROBINSON & ASSOCIATES LLC 3075 East Thousand Oaks Boulevard, Building 100, 660 South Figueroa Street, Suite 1280, Los Angeles, 4720 Lincoln Boulevard, Suite 300, Marina del Rey, Suite 23, Thousand Oaks, CA 91362, (805) 777- CA 90017, (213) 627-8280, fax (213) 627-8301, CA 90292, (310) 578-0470, fax (310) 578-6552, 1115, fax (805) 777-1172. Other offices in Los e-mail: [email protected]. Web site: www e-mail: [email protected]. Web site: www Angeles, San Diego, and Palm Springs, CA. Web .schulzehaynes.com. Contact Karl J Schulze or .mauricerobinson.com. Contact R. Maurice site: www.schwartzromano.com. Contact Robert Dana Haynes, principals. Specialties: forensic busi- Robinson, president. Hotel and real estate industry Schwartz, AIA. Forensic investigation of building de- ness analysis and accounting, lost profits, economic business issues, including market, economic and fi- sign and construction defects, structural and weath- damages, expert testimony, discovery assistance, nancial feasibility, valuation, and disputes between erproofing systems. Establishment of construction business and real estate valuations, construction owner-operator, borrower-lender, and franchisor- contract and building code compliance. Evaluation claims, corporate recovery, real estate transactions, franchisee. Fluent in management contracts, license of delay claims. Documentation of major property/ca- financial analysis and modeling, major professional agreements, ground and building leases, partner- sualty insurance losses. Determination of profes- organizations, and have experience across a broad ship and JV agreement, concession contracts, de- sional performance standards. Architectural and en- spectrum of industries and business issues. De- velopment agreements, and loan docs. Can estimate gineering design and construction management. grees/licenses: CPA; CVA; CFE; CMA; Certified Ap- damages and appraise property values under multi- Quantity surveying and cost estimating. Litigation praiser, PE; RE Broker. ple scenarios. Expert witness testimony, litigation support and trial exhibit preparation. Expert witness strategy, consultation and support, damage calcula- testimony. AAA arbitrator and mediator, large and TEMMY WALKER, INC. tions, lost profits analysis, real estate appraisals, complex construction cases. Member, dispute reso- 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760- deal structuring, workouts, new development, strate- lution boards. 3355, fax (818) 999-0826, e-mail: [email protected]. gic planning, market demand assessment, acquisi- Contact Temmy Walker. Specializes in expert wit- tion due diligence, and economic, financial, and in- ness testimony and litigation consultant in matters re- vestment analysis. garding residential real estate, with emphasis on the customs and practice, standards of care, disclosure

82 LOS ANGELES LAWYER / NOVEMBER 2003 VAN DIJK & ASSOCIATES, INC. STEPHEN J. MOREWITZ, PhD & ASSOCIATES 28 Hammond, Suite G, Irvine, CA 92618, (949) 586- 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- 3828, fax (949) 586-7429, e-mail: info@vdaconsulting 1587, fax (818) 345-9981, e-mail: morewitz@earthlink .com. Web site:www.vdaconsulting.com. Contact .net. Web site: http//home.earthlink.net/~morewitz/ Nils Van Dijk. Experienced staff of consultants special- Contact Dr. Steve Morewitz. Disability and sexual izing in forensic/expert witness litigation services, plan/ harassment. Evaluates disability and sexual harass- document review, specification preparation, and quality ment. Provides other experts. Eighteen years of ex- control/management services. perience. Professor and dean, author of three books and over 60 abstracts and articles. SECURITY TAXATION CONFIDENTIAL BUSINESS CONSULTANTS, LLC KAJAN MATHER & BARISH 2275 Huntington Drive, Suite 309, San Marino, CA 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA 91108, (626) 419-0082, fax (626) 799-7960, e-mail: 90212, (310) 278-6080, fax (310) 278-4805, e-mail: [email protected]. Contact James F. Broder, [email protected]. Web site: www.taxdisputes CFE, CPP, FACFE, author. “Risk Analysis and Se- .com. Contact Elliott H. Kajan. The firm’s practice is curity Surveys”, premise liability, adequate vs. inade- devoted to representation of taxpayers before the In- quate security procedures and practices, expert ternal Revenue Service, Franchise Tax Board, State case analysis and testimony, corporate procedures, Board of Equalization, and California Employment training and operations, kidnap, ransom, extortion, Development Department, involving tax audits, ad- and workplace violence issues. Thirty-five years of ministration appeals proceedings, tax collection mat- law enforcement and security experience, domestic ters, complex tax litigation, and criminal tax investi- and international. Listed in the Encyclopedia of Se- gations and trials. The firm also represents and ad- curity Management as “One of the most highly rec- vises accountants regarding tax penalties and pro- ognized security authorities in the US.” CA PI Lic. fessional responsibility matters. 0021073. TRAFFIC ENGINEER SEXUAL HARASSMENT/ DISCRIMINATION WILLIAM KUNZMAN, PE 1111 Town and Country #34, Orange, CA 92868, HAIGHT CONSULTING (714) 973-8383, fax (714) 973-8821, e-mail: mail 1726 Palisades Drive, Pacific Palisades, CA 90272, @traffic-engineer.com. Web site: www.traffic (310) 454-2988, fax (310) 454-4516. Contact Marcia -engineer.com. Contact William Kunzman, PE Haight. Human resources expert knowledgeable in Traffic expert witness since 1979. Auto, pedestrian, both federal and California law. Twenty-five years’ bicycle, and motorcycle accidents. Largest settle- corporate human resources management experi- ment: $2,000,000 solo vehicle accident case against ence plus over 14 years as a Human Resources Caltrans. Before becoming expert witnesses, em- Compliance Consultant in California. Specializations ployed by Los Angeles County Road Department, include sexual harassment, ADA/disability discrimi- Riverside County Road Department, City of Irvine, nation, other Title VII and FEHA discrimination and and Federal Highway Administration. Knowledge of harassment, retaliation, FMLA/CFRA, safety and governmental agency procedures, design, geomet- wrongful termination. Courtroom testimony and de- rics, signs traffic controls, maintenance, and pedes- position experience. Retained 60% for defense, 40% trian protection barriers. Hundreds of cases. for plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retali- TRUCKING/COMMERCIAL ation issues. Assess human resources policies and practices for soundness, for comparison to prevail- DOIT CORPORATION ing practices, and for compliance. Evaluate effec- 11232 Verde Street, Oak Hill, CA 92345, (760) tiveness of employer investigations. Assist counsel 244-6344, e-mail: [email protected]. Web site: via preliminary case analysis, discovery strategy, ex- www.cheetah.net/~saymeow/. Contact John amination of documents, and expert testimony. Riggins. Trucking industry driver training/safety specialist. Review, consult, depositions, and trial. Experi- BRIAN H. KLEINER, PhD enced. Exceptionally qualified for deposition/trial tes- Professor of Human Resource Management, Califor- timony. CA Commercial Class A driver license (fully nia State University, 800 North State College Boule- endorsed: doubles, triples, tankers, hazardous mate- vard, LH-640, Fullerton, CA 92834, (714) 879-9705, rial, passengers); DOT certified; CA transportation in- fax (714) 879-5600. Contact Brian H. Kleiner, PhD. structor; certified airbrake maintenance/inspection; Specializations include wrongful termination, discrim- National Safety Council qualified professional truck ination, sexual harassment, ADA, evaluation of poli- driver/defensive driving. Former owner-operator/di- cies and practices, reasonable care, progressive rector of training for CDL Instructors. U.S. Marines, discipline, conducting third party workplace investi- LA Fire and Sheriff’s. gations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/FMLA, compensation, VISION wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over VISUAL FORENSICS 500 publications. Five-time winner of CSUF Meritori- (800) 426-6872, 130 Ryan Industrial Court, Suite ous Performance Award. Extensive experience giv- 105, San Ramon, CA 94583. Web site: www ing testimony effectively. .visualforensics.com. 3D computer simulations for all aspects of accident reconstruction, vision related PENNY HARRINGTON & ASSOCIATES malpractice, criminal reenactment, and more. Vision 497 Estero Avenue, Morro Bay, CA 93442, (805) perception, site visibility, and human factors analy- 772-2093, fax (805) 771-9445, e-mail: chiefpenny sis. Opposing demonstrative evidence analysis. In- @aol.com. Web site: www.pennyharrington.com. house scientific and engineering experts. Led by in- Contact Penny E. Harrington. Expert witness, ternationally recognized vision scientist, Dr. Arthur P. report review, discrimination investigation, develop Ginsburg, who has over 12 years of experience as a policies and procedures, evaluate policies and provision and visibility expert consultant for the legal in- cedures and conduct training on employment dis- dustry and government agencies. Plaintiff and de- crimination. fense. Seen on CBS’s 60 Minutes and Court TV. See display ad on page 66.

LOS ANGELES LAWYER / NOVEMBER 2003 83 he Los Angeles County Bar Foundation’s 2002-2003 the procedures required in connection with its annual audit, fundraising campaign raised approximately $270,000 the Foundation hereby lists all individuals who made contri- Tfrom corporations, foundations, individuals, law firms, butions of $200 or more, and all law firms, corporations, foun- and others. Direct contributions from law firms totaled $98,650; dations, and other organizations that contributed $1,000 or individuals contributed $65,297; and corporations, foundations, more during the period beginning July 1, 2002, and ending June and others contributed $23,223. In addition to these direct con- 30, 2003. If you are not listed below, and you made a contri- tributions, approximately $81,000 was contributed to the bution to the Foundation fitting any of the above criteria, Foundation by individuals, corporations, and law firms by please contact the Foundation's independent certified public means of the Association's annual dues statement voluntary accountants, Grant Thornton, by calling Richard Simitian contribution. 2002-2003 directly at (213) 688-1738. The Foundation wishes to express sincere thanks to all Fund Drive The Foundation regrets that space limitations prevent the who contributed during the 2002-2003 campaign. As part of Results listing of the names of all contributors.

INDIVIDUAL $200-$499 $1,000-$1,999 IN MEMORY OF... Founder ($50,000 or more) CONTRIBUTIONS Barbara J. Bacon Allen, Matkins, Leck, Gamble & CHARLES R. ENGLISH, by Hyman J. Bradofsky Teresa A. Beaudet Mallory LLP Gerald L. Chaleff Hutto Patterson Charitable $10,000 or more Michael I. Blaylock Alschuler Grossman Stein & Judge Kenneth Lee & Flo Foundation Ruth J. Lavine Phillip L. Bosl Kahan LLP Chotiner J.W. & Ida M. Jameson $1,500-$9,999 Patricia Egan Daehnke Arter & Hadden LLP Rickard Santwier Foundation Martha B. Jordan Richard C. & Susan K. Davidoff Bonne Bridges, Mueller, Donald C. Mitchell W.R. “Bob” SPENSLEY, by James H. Kindel, Jr. Hon. Macklin Fleming O’Keefe & Nichols APC Ralph J. Shapiro Martin R. Horn Robin Meadow Michele E. Flurer Cox Castle & Nicholson LLP Jubas Family Foundation Benefactor ($25,000- Shirley & Ralph Shapiro Jeffrey C. Freedman Ervin, Cohen & Jessup LLP Donald C. Mitchell $49,999) Howard Hom Fried, Frank, Harris, Shriver & $1,000-$1,499 Roy H. Aaron Bernard E. & Joan M. LeSage Jacobson JOSEPH TABACK, by Charles G. Bakaly, Jr. Hon. Richard A. & Ruth J. LeAnne E. Maillian Gang, Tyre, Ramer & Brown Hon. Christian E. Markey, Jr. Gerald L. Chaleff Lavine Victor I. Marmon Charitable Foundation Lee W. Salisbury Walter Cochran-Bond Jules & Doris Stein Foundation Gretchen M. Nelson Girardi & Keese John J. Collins VINCENT M. TOWNSEND, JR., by Lloyd & Susan Stockel Todd F. Nevell Greines, Martin, Stein & Glen B. Collyer Ralph B. Perry III Ralph B. Perry III Richland LLP Patron ($15,000-$24,999) Donald A. Daucher James G. Phillipp Hahn & Hahn LLP LORRAINE WYLER, by William J. Bogaard Stanley F. Farrar Robert S. Warren Haight, Brown & Bonesteel LLP Hon. Paul Wyler Richard Chernick Russell T. Ginise Martin H. Webster Heller, Ehrman, White & Stanley F. Farrar Albert S. Golbert IN HONOR OF... Hon. Paul Wyler McAuliffe LLP Robert K. Johnson Martin R. Horn Hill, Farrer & Burrill LLP ROY H. AARON, by Gavin Miller Robert K. Johnson LAW FIRM Hochman, Salkin, Rettig, Shirley & Ralph Shapiro In Honor of David Pascale Margaret Levy CONTRIBUTIONS Toscher & Perez P.C. John J. Quinn Donald C. Mitchell DONALD P. BAKER, by Horvitz & Levy LLP In Honor of Richard Walch Covert E. Parnell III $6,000 and above Alan B. Clark Hughes, Hubbard & Reed LLP John J. Quinn Latham & Watkins LLP Sponsor ($10,000-$14,999) Iverson, Yoakum, Papiano & HON. TERRY J. HATTER, JR., by Wayne Simon Morrison & Foerster Don Mike Anthony Hatch A/H Foundation (Al Friedman) Daniel J. Woods Foundation Joseph R. Austin Manatt, Phelps & Phillips LLP Donna J. Zenor GRACE M. LEE, by Robert E. Carlson $5,000-$5,999 Marrone, Robinson, Frederick David & Colleen Pascale John Carson $500-$999 Akin, Gump, Strauss, Hauer & & Foster Gerald Chaleff Linda Auerbach Allderdice THE PARTNERS AT LIEBERT Feld LLP Mayer, Brown, Rowe & Maw John J. Collins Don Mike Anthony CASSIDY WHITMORE, by Bingham McCutchen LLP Orrick, Herrington & Sutcliffe Knox M. Cologne III Donald P. Baker Jeffrey C. Freedman O’Melveny & Myers LLP Pillsbury Winthrop LLP Charles R. English Lori R. Behar Paul, Hastings, Janofsky & Reish Luftman McDaniel & DAVID R. PASCALE, by Stephen R. English & Molly Mollie F. Benedict Walker LLP Reicher APC John D. Taylor Munger Thomas M. Brown Sheppard, Mullin, Richter & Robie & Matthai Richard E. Garcia Brian K. Condon HENRY STEIN, by Hampton LLP Rutter, Hobbs & Davidoff Inc. Harry L. Hathaway Andrew J. Demetriou Sheryl E. Stein $3,500-$4,999 Sedgwick, Detert, Moran & Patrick M. Kelly Laura V. Farber Arnold LLP Munger, Tolles & Olson The Foundation would also Joel W. H. Kleinberg James J. Gallagher Stroock & Stroock & Lavan LLP like to give special recognition Robin Meadow Richard E. Garcia $2,000-$3,499 Sullivan & Cromwell to the following individuals Neal S. Millard Mark Garscia Arnold & Porter White & Case whose participation in various Covert E. Parnell III Richard B. Goetz Foley & Lardner pledge programs (as of Joseph Taback Feris M. Greenberger Fulbright & Jaworski LLP OTHER 6/30/03) reﬂects a ﬁrm David H. Vena Rex S. Heinke Greenberg Glusker CONTRIBUTIONS commitment to the Hon. Charles S. Vogel Larry & Bobbie Liebenbaum Howrey Simon Arnold & White $5,000 and above Foundation’s goals: Robert S. Warren James C. Martin LLP American Corporate Counsel Friend ($5,000 - $9,999) Charles E. Michaels Irell & Manella LLP HONOR ROLL Theodore N. Miller Jaffe & Clemens Association/So. California Joseph W. Aidlin The names of Honor Roll Hon. Margaret A. Nagle Jones, Day, Reavis & Pogue Chapter Steven W. Bacon members have been perma- Richard H. Nakamura, Jr. McKenna, Long & Aldridge LLP $1,000-$4,999 Charles G. Bakaly, Jr. nently inscribed on a distinc- Thomas D. Phelps Milbank, Tweed, Hadley & Achieving America Family Donald P. Baker tive “Wall of Honor” at the Patricia L. Shanks McCloy LLP Foundation Patricia H. Benson County Bar offices. Participants Sheryl E. Stein Sidley Austin Brown & Wood Countrywide Home Loans Walter Cochran-Bond have contributed or pledged David W. Steuber LLP DIRECTV Paul F. & Isabel R. Cohen to contribute the amounts Patric M. Verrone Skadden, Arps, Slate, Meagher Jubas Family Foundation Glen B. Collyer shown for each category. & Flom LLP Joe D. Crider Donald A. Daucher

84 LOS ANGELES LAWYER / NOVEMBER 2003 Lee Edmon & Dick Burdge Larry R. Feldman Hon. H. Walter Croskey Irving Rosenfeld Jennifer F. Novak Larry R. Feldman David E. Gordon Patricia Egan Daehnke Alan I. Rothenberg Angela J. Reddock Mark Garscia Hon. William P. Gray Hugh W. Darling Edward Rubin Andrea Schoor Albert S. Golbert Sarah Heck Griffin Albert F. Davis Deborah J. Ruosch Lara Drino Schwartz David E. Gordon & Mary D. Lane Harry L. Hathaway Katessa Charles Davis Harvey I. Saferstein Lorin D. Snyder Hon. William P. Gray Rex S. Heinke Andrew J. Demetriou Nicholas P. Saggese Margaret P. Stevens Sarah Heck Griffin John D. Hussey Maurice K. DeWolff Herman F. Selvin Susan Koehler Sullivan Rex S. Heinke Joan R. Isaacs Sydney J. Dunitz Patricia L. Shanks Paul D. Tripodi II Richard E. Hodge Leonard S. Janofsky Pamela Dunn & Maria Louise Fran & Leonard Smith Justin Walcott Hon. William P. Hogoboom Vincent W. Jones Cousineau John R. Stahr Maria D. Hummer Patrick M. Kelly Hon. Walter R. Ely Sheryl E. Stein SUPPORTING MEMBERS John D. Hussey Ruth J. Lavine Gregory L. Evans David W. Steuber Individuals who have pledged Joan R. Isaacs Fred L. Leydorf Jonathan W. Evans Clinton R. Stevenson to contribute a minimum of Leonard S. Janofsky Robin Meadow Laura V. Farber Richard J. Stone $100 annually to the Vincent W. Jones Neal S. Millard Michael J. Fasman Linda M. Stude Foundation. Martha B. Jordan Gavin Miller Hon. Lisa Hill Fenning Jack Stutman John W. Alden, Jr. James H. Kindel, Jr. Hon. Margaret M. Morrow Hon. Macklin Fleming Hon. Robert M. Talcott Nicholas R. Allis Sandra R. King John F. O’Hara Georgia Franklin-Shutan Stuart P. Tobisman Hon. Helen I. Bendix Richard G. LaPorte Andrea Sheridan Ordin Jeffrey C. Freedman Maynard Toll Michael H. Bierman Bernard E. & Joan M. LeSage David J. Pasternak Alan H. Friedenthal Franklin Tom Andre Birotte, Jr. Margaret Levy John J. Quinn James J. Gallagher Clyde E. Tritt Maxwell M. Blecher Larry & Bobbie Liebenbaum Sheldon H. Sloan Patricia A. Gartner Eugene L. Trope Jonathan M. Brandler Malissa Hathaway McKeith Susan R. Stockel Edward H. Gaylord Susan J. Troy Brad D. Brian Theodore N. Miller John D. Taylor Robert T. Gelber David C. Tseng Lester O. Brown Hon. Anthony J. Mohr Hon. Charles S. Vogel Russell T. Ginise Robert C. Vanderet William Clark Brown Hon. Margaret M. Morrow Robert S. Warren Richard B. Goetz Patric M. Verrone Prof. Christopher D. Cameron Hon. Margaret A. Nagle Martin H. Webster Hon. Arnold H. Gold Caroline C. Vincent Hon. H. Walter Croskey John F. O’Hara John S. Welch Prof. Max A. Goodman Richard S. Volpert Melissa A. Dalziel Ronald L. Olson Francis M. Wheat Jan Charles Gray Richard Walch Katessa Charles Davis Andrea Sheridan Ordin Donna J. Zenor Hon. Paul Gutman John F. Walker, Jr. Jack I. Esensten David J. & Cynthia F. Pasternak Alan N. Halkett Stuart B. Walzer Michael D. Fitts Aulana L. Peters LIFE FELLOWS Rex Heeseman Donald M. Wessling Michele E. Flurer Thomas D. Phelps Robert Henigson Michael S. Whalen Individuals who have con- Robert S. Gerstein Douglas Ring Grover R. Heyler Franklin H. Wilson tributed or pledged to con- Mark T. Gillett Reade H. Ryan, Jr. Edward W. Hieronymus Karen B. Wong & Scott W. Lee tribute in installments of no Janice R. Hugener Harvey L. Silbert James R. Hutter Thomas E. Workman, Jr. less than $500 per year a Lois M. Jacobs Wayne Simon Bernard S. Kamine Kenneth B. Wright minimum of $2,500 to the Henry J. Josefsberg Sheldon H. Sloan Kelly W. Kay Hon. Paul Wyler Foundation. (Note: All Honor Ruth D. Kahn Linda J. Smith Richard H. Keatinge Rosalyn S. Zakheim Roll members are also Life Diane L. Karpman John D. Taylor Russel I. Kully Fellows.) Terri D. Keville William W. Vaughn Frederick W. Lambert 2002-03 FELLOWS James N. Adler Judy A. Kim Martin H. Webster John A. Lapinski Linda Auerbach Allderdice Individuals who contributed a Marcia L. Kraft Hon. Robert Weil Grace M. Lee Dean V. Ambrose minimum of $500 during the Miriam A. Krinsky John S. Welch Bruce M. Leiserowitz Hon. Orville A. Armstrong last ﬁscal year and are not Life Robert N. Kwan Francis M. Wheat Roderick W. Leonard Richards D. Barger Fellows or Honor Roll partici- Edward A. Landry In Memory of Arnold V. Fred L. Leydorf Jane H. Barrett pants. Andrea B. Liebenbaum Winthrop Michael S. Lurey Teresa A. Beaudet Feris M. Greenberger Tomas R. Lopez Daniel J. Woods Hugh L. Macneil Lori R. Behar Martin R. Horn LeAnne E. Maillian Donna J. Zenor LeAnne E. Maillian Frank B. Belcher Victor I. Marmon Vicki E. Marmorstein & Seth Mollie F. Benedict BARRISTERS FELLOWS Frederick L. McKnight PRESIDENTS CLUB A. Ribner Blanche C. Bersch Pansky & Markle James C. Martin Members of the Los Angeles Current and Former Bar William M. Bitting John J. Quinn Marsha McLean-Utley County Bar Association Association or Bar Foundation Michael I. Blaylock Barbara W. Ravitz Michael E. Meyer Barristers who have contribut- presidents who have contrib- Stephen M. Blitz Jerrold B. Reilly Charles E. Michaels ed or pledged to contribute uted or pledged to contribute Merrick J. Bobb Pauline Y. Robins Richard T. Morrow (over a 5-year period in install- a minimum of $5,000 to the Robert C. Boffa Toby J. Rothschild Richard H. Nakamura, Jr. ments of $50, $75, $100, $125 Foundation. Phillip L. Bosl Peter Schnaitman Mark A. Neubauer and $150) a minimum of $500 Roy H. Aaron Joel E. Boxer Barry E. Shanley Robert H. Nida to the Foundation. Don Mike Anthony Thomas M. Brown Arthur F. Silbergeld Andrew J. Nocas Barbara J. Bacon Joseph R. Austin Geoffrey L. Bryan Edward C. Stieg Stacey Olliff & Tracy Rich James W. Bilderback II Donald P. Baker Kimberly L. Buffington Ross E. Stromberg Gregg Oppenheimer Gabrielle Harner Brumbach Robert E. Carlson Martin J. Burke Linda M. Stude Lee R. Petillon Elizabeth M. Calciano John Carson Lauren Burton Paul D. Supnik Patricia Phillips Susan Skelding Couig Gerald Chaleff Jerome C. Byrne Michael A. Tomasulo Stanley R. Rader Rebecca A. Delﬁno Richard Chernick Claudia Carver Patricia A. Van Dyke Karen Randall Stuart R. Fraenkel Knox M. Cologne III Paul A. Catalano Richard Walch Barbara A. Reeves Joseph T. Hahn Donald A. Daucher Edward C. Cazier, Jr. Norman L. Wilky Kenneth O. Rhodes Jacqueline J. Harding Hon. Lee Smalley Edmon Arlene Colman-Schwimmer Earl P. Willens Hon. Andria K. Richey Andres C. Hurwitz Charles R. English Brian K. Condon Roxanne M. Wilson Robert G. Rifkind Nancy A. Kaiser Stephen R. English Douglas C. Conroy Michael C. Zellers David K. Robinson Todd F. Nevell

Fundraising for the current ﬁscal year (7/1/2003-6/30/2004) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2003 grant recipients. You may also contact the Foundation’s administrator, Linda Stude, at (213)896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, P.O. Box 55020, Los Angeles, CA 90055.

LOS ANGELES LAWYER / NOVEMBER 2003 85 computer counselor

By Carole Levitt

How to Access Public Library Databases for Research Purposes

Attorneys can use database access, visit their Web more than 12 million companies est magazines, reference books, sites. To find a public library’s compiled from nationwide yellow and newspapers. library databases URL, use the Lib Web site (found pages, searchable by name, • Infotrac One File (Gale): Users at http://sunsite.berkeley.edu industry, geographic location, or can search this database for news to find what they /Libweb. If a library does have size. This database also allows and periodical articles on busi- remote access, users must have for searches of more than 120 ness, computers, current events, might otherwise a library card. (Some libraries million residential listings. economics, education, environ- also require a password, which • Associations Unlimited: This mental issues, health, hobbies, have to pay for typically is one’s zip code.) Ob- database offers descriptions of humanities, law, literature and taining a card is easy—it too can more than 135,000 international art, politics, science, social sci- be done over the Web at many and U.S. national, regional, state, ence, sports, and technology. t is now commonplace for a library Web sites. However, one and local membership organiza- • Investext: This offers the com- library to post its card catalog must retrieve the card in person, tions in all fields. plete texts of more than 750,000 Ifree on the Internet. This cat- not remotely. Once the card is in • Biography Resource Center: international company and indus- alog (referred to as an OPAC— hand, however, entering the This is a comprehensive database try reports published by approx- Online Public Access Catalog) library card number into the of biographical information on imately 320 of the world’s leading allows Internet users to peruse a library’s remote access database more than 275,000 individuals. investment banks, brokerage library’s catalog at their homes or Web page opens the door to a Compiled from many sources, firms, and consulting and offices and locate a book before wealth of free information. the database includes the com- research firms. having to travel to the library to It is wise to visit a few library plete Marquis Who’s Who. • Los Angeles Times (News retrieve it. To add to the conve- sites to review their offerings • Business & Company Re- Bank): This service provides the nience, many OPACs even show before deciding where to apply source Center (Infotrac/Gale): complete, full-text content of the whether the book is available for for a library card. A logical place This resource unifies company newspaper’s local and regional checkout. to start is the Los Angeles Pubic profiles, company brand infor- news stories. Paid advertise- The newest development in Library (LAPL). The remote data- mation, rankings, investment ments are excluded. this welcome trend is that bases available at LAPL are listed reports, company histories, • Oxford English Dictionary: libraries are now providing at http://databases.lapl.org. To chronologies, and periodicals. Rather than struggle with heavy library patrons with free remote view an alphabetical list of remote • Business Resources (Gale): volumes, users can search this access to select databases, includ- databases (and some additional This lists roughly 200,000 U.S. online version of the 20-volume ing for-pay databases. For the ones available only at the library’s companies, along with company Oxford English Dictionary, Second most part, these databases are in-house computers) click on the histories, essays regarding 54 Edition, and the 3 supplemental not legal research databases but menu at the bottom of the page. industrial categories, industry volumes. instead are busi- Each database has statistics, market share reports, • Physicians’ Desk Reference ness, news, inves- Carole Levitt is an indication of and company rankings. (PDR): This pharmaceutical ref- tigative, and finan- an attorney and whether it allows • California Manufacturers erence includes prescription and cial databases that president of Internet remote access, ac- Register (Harris InfoSource): nonprescription drugs, and contain information For Lawyers. She can cess only at the This database offers researchers Stedman’s Medical Dictionary. that often proves be reached at clevitt Central Library, or in-depth information on 37,000 • Proquest General Interest necessary to the @netforlawyers.com. access at the Cen- California companies and can be Magazines: This database offers practice of law. The tral Library and the searched and sorted by fields. citations, abstracts, and the full wealth of factual branches. LAPL’s • General Business File ASAP: text of academic and popular pub- information found database site also This searchable database offers lications. in these databases can augment offers a subject guide to the avail- general, health, and business sec- • Standard and Poor’s Net an attorney’s research and can able databases and a link to a tions; abstracts; and full-text peri- Advantage: This database con- be used for client development. descriptive list of the databases. odicals. tains descriptive and financial The availability of remote LAPL’s remote access data- • General Reference Center: data on U.S. and non-U.S. corpo- access to databases varies widely bases include: This database provides access to rations. Three files are provided: from library to library. To find • American Business Disc full-text articles and images of Executives, Private Companies, out which public libraries offer (Reference USA), which lists articles from most general inter- and Public Companies.

86 LOS ANGELES LAWYER / NOVEMBER 2003 THE BAR IS OPEN 24/7 www.lacba.org

Available Now! Connect to the Los Angeles County Bar Association and get online:

✔ Case Summaries via the Daily EBriefs ✔ Online CLE ✔ Judicial Council Forms ✔ Legal Resource Directories ✔ LACBA Legal Forms Center ✔ Lawyer Referral & Information Service ✔ Los Angeles Lawyer magazine ✔ Over 300 Judicial Proﬁles ✔ CLE Event Calendar and much, much MORE!

24 hours a day, 7 days a week

Plus, find out what hundreds of law firms and thousands of lawyers know that you don't with with the Searchable Superior Court Civil Register. Find out more about judges, commissioners, mediators, parties, attorneys, and law firms than you thought possible. An exclusive service of the County Bar. For more information visit www.lacba.org. • World Book Encyclopedia: This reference as there are no geographical boundaries on Bank but found nothing. I turned to a broader offers information on a range of topics. the Internet, often few or none exist for library database, InfoTrac, which includes 32,564,086 LAPL has no residency requirements for membership. articles from domestic and international news- obtaining a library card, which is free. An papers and magazines (updated daily). In an attorney who resides outside of the city of Los Potential Uses Arizona newspaper article, I found that he Angeles can apply for a card at LAPL by vis- Attorneys often need to investigate the had defrauded clients in Arizona before mov- iting http://librarycard.lapl.org. For those background of clients, the opposition, or an ing on to California. I also learned that his who do not mind paying a $100 fee, the New expert witness. After searching through the license had been suspended. This search York Public Library (NYPL) also allows out- usual legal research sources such as case took a few minutes, cost nothing, and saved side residents to apply for a library card. (See law and dockets, searching for factual infor- me from dealing with him. To search InfoTrac http://www.nypl.org/branch/idescriptions mation is in order. LAPL’s full-text newspaper efficiently, reading the Help screens is .html for a list of NYPL’s remote databases.) article databases are useful for this. For exam- advised. InfoTrac allows keyword and prox- However, to this expense one must also add ple, while investigating the background of a imity searching and allows users to manipu- the cost of a plane ticket to New York, because Los Angeles securities broker, I first ran his late results lists into detailed lists of subtopics. users must retrieve the card in person. Just name through the Los Angeles Times News Information gleaned from many of these remote databases can serve as client development tools. Using the factual and statistical information found in the business- and finance-oriented remote databases, one can gather competitive intelligence about people, products, and companies. Using this intelligence can assist one in finding and targeting potential clients. For example, an attorney who wants to represent record labels in a particular geographic location with a specific sales volume can use RefUSA’s Custom Report tool, which allows one to create a list of potential clients based upon specific criteria selected by the user to create a custom report. An attorney can select to search by the following criteria: 1) geographic location (city, state, or zip code), 2) SIC (Standard Industrial Classification) code (select the SIC code for record labels from a drop-down menu of SIC codes), and 3) sales volume (select the “sales volume” criteria). Once the criteria for the custom report is selected, a template is generated automatically and specific information can be entered into the report’s template. In this example, I entered: 1) $500,000 to $1 million for sales volume, 2) seven zip codes for geographic location, and 3) SIC code 7389-47 for the record label classification. A report with eight companies that met all the criteria was then generated. It displayed the company name, address, phone and fax numbers, number of employees, and sales revenue. The report can be downloaded into an Excel spreadsheet, and from there an attorney can begin to market to this target group. The convenience of being able to search remotely through the full text of so many databases for information and to read and print the information from one’s office or home computer surpasses anything imag- ined even just a few years ago. To say that the free remote access to library databases is a valuable resource is an understatement. It not only saves a commute to the library, it allows access to amazing amounts of useful information for free and saves attorneys from investing in database subscriptions they need only occasionally. ■

88 LOS ANGELES LAWYER / NOVEMBER 2003 IndextoAdvertisers

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Wallace, p. 70 Tel. 888-920-3932 www.execlaw.com Tel. 310-516-0022 Tel. 818-501-0133 www.expertwitnessre.com Forensic Expert Witnesses Association, p. 77 Noriega Clinics, p. 90 Bruce Wapen, M.D., p. 76 Tel. 949-640-9903 www.forensic.org Tel. 323-728-8268 Tel 650-577-8635 www.drwapen.com ForensisGroup, Inc., p. 59 One Legal, Inc., p. 23 Temmy Walker, Inc., p. 81 Tel. 626-795-5000 www.forensisgroup.com Tel. 415-491-0606 www.onelegal.com Tel. 818-760-3355 Samuel K. Freshman, p. 81 Gary Ordog, MD, p. 73 Weinstock, Manion, Reisman, Shore & Neumann, p. 27 Tel. 310-410-2300 [email protected] Tel. 661-799-1689 http://dwp.bigplanet.com/toxic Tel. 310-553-8844 www.weinstocklaw.com FULCRUM Financial Inquiry LLP, p. 2 Ostrove, Krantz & Ostrove, p. 53 West Group, p. 11, Back Cover Tel. 213-787-4100 www.fulcruminquiry.com Tel. 323-939-3400 www.lawyers.com/ok&olaw Tel. 800-762-5272 www.westlaw.com G. Govine Consulting, p. 67 Pacific Construction Consultants, Inc. 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90 LOS ANGELES LAWYER / NOVEMBER 2003 CLE Preview

Hot Topics in Environmental Law Nuts and Bolts: Basic Litigation ON FRIDAY, NOVEMBER 14, the Environmental Law Section will present its second Skills annual fall symposium. California Attorney General Bill Lockyer will be the symposium’s keynote speaker, and topics will include CUPA administrative ON DECEMBER 4, 5, AND 6 enforcement authority, multijurisdictional practice of law, model land use element of (Thursday, Friday, and the SCAQMD, and the latest in groundwater litigation. Other speakers will include Saturday), the Association, in conjunction with the Fred Fudacz, Scott S. Slater, Lisa Brown, Mike Dorsey, Deborah Perfetti Felt Barristers, will present a (moderator), Barbara Baird, Curt Coleman, Gail Ruderman-Feuer, Judge Samuel L. three-day conference on Bufford, Scott H. Dunham, Andrew J. Guilford, and Thomas F. Daly (moderator). The effective litigation tech- symposium will be followed by a reception with complimentary drinks and hors niques. This conference d’oeuvres. More information on this important event is available at the Environmental features some of the very best lawyers, professors, Law Section’s home page (found via http://www.lacba.org). The symposium will take and judges in our commu- place at Le Merigot Hotel, 1740 Ocean Avenue in Santa Monica. On-site registration nity. Participants will leave will begin at 11:30 A.M., with the program continuing from noon to 5 P.M. The the program with a form registration code number is 8234K14. file of sample pleadings. $75—CLE+PLUS members The course will cover com- $140—Environmental Law Section members plaints, responsive pleadings, written discovery, $160—LACBA members and discovery motions on $185—All others the first day, law and 5 CLE hours, including 1 legal ethics hour motion and deposition techniques on the second, and writing in plain English Twenty-Seventh Annual IPELS Symposium and alternative dispute resolution as a tool for the liti- ON WEDNESDAY, NOVEMBER 12, the Intellectual Property and Entertainment Law gator on the third. This Section, in conjunction with the Southwestern University School of Law’s Donald E. conference will take place Biederman National Entertainment and Media Law Institute, will present its annual at the LACBA/LEXIS symposium on critical issues in entertainment law. On the first panel, speakers Mauren Publishing Conference Christensen, Beth Roberts, and Robert Schwartz will discuss recent decisions and Center, 281 South Figueroa legislation affecting entertainment lawyers and content owners. On the following panel, Street, Downtown. Parking at the Figueroa Courtyard speakers Ivy Berman and John Connolly will discuss guild and union issues from the Garage will be available management and labor perspectives. In the afternoon, the third panel will discuss the for $7 with LACBA valida- economics of industry consolidation and will feature speakers Robert Corn-Revere, tion. The registration code Steven Sills, and Vance Van Petten. This conference will take place at the Southwestern number is 7102L04. School of Law, Bullocks Wilshire Building, 3050 Wilshire Boulevard in Los Angeles. On- $425—CLE+PLUS members $480—Barristers site registration will be available at 8 A.M., with the program continuing from 8:30 A.M. $560—Association member to 1 P.M. The registration code number is 08356. special discount $65—CLE+PLUS members $665—“Become a Member” $160—IPEL Section members special discount $215—all others $925—all others $225—at-the-door payment for all 18 CLE hours, including 2 legal ethics hours 3.75 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://forums.lacba.org/calendar.cfm. For a full listing of this month’s Association programs, please consult the November County Bar Update.

LOS ANGELES LAWYER / NOVEMBER 2003 91 closing argument

By Edward Poll

Can You Keep a Secret? The organized bar must forcefully oppose the erosion of attorney-client conﬁdentiality

irtually everyone involved in the legal profession would agree attorney’s advice to a client may be inappropriate or actually wrong. that only when clients provide their attorneys with full dis- There seem to be many causes for this erosion of the attorney-client Vclosure can attorneys best assert and protect the interests of privilege. One is the reduction in the number of lawyers (and others) their clients. But can a lawyer keep a secret? For clients, that is more who fully appreciate the role of attorney-client confidentiality as mem- than a rhetorical question. Unfortunately, under the new “snitch” bers of our state legislatures and Congress. Another is the mean-spir- rules that are springing up in Washington, D.C., and across the coun- ited attitude toward lawyers that has been pervasive throughout his- try, the answer may well be no. tory because lawyers are the defenders of the rights of individuals. Society today seems to be less concerned about the privilege of In addition, some people resent the riches that a few lawyers confidentiality than ever before. As a result, lawyers are in jeopardy have received from high-profile class action cases. Of course, these of losing precisely what distinguishes them from most other profes- people fail to recognize that these same lawyers work on hundreds sionals: confidentiality. However, recent events have begun to erode or thousands of cases that produce no income and that without the that distinction. possibility of contingency representation thousands of clients would Up until now, the distinction has been very clear. California never have their day in court. Or, maybe they do recognize these facts Business and Professions Code Section 6068(e) provides that the attor- and want to stifle that representation to protect their own special ney must “maintain inviolate the confidence and at every peril to interests—such as those of large corporations against which the himself or herself to preserve the secrets, of his or her clients.…” The actions are brought and sometimes won. ABA Model Rules of Professional Conduct Rule 1.6(a) provides that It is a red herring to argue that the recent attacks on confidentiality “[a] lawyer shall not reveal information relating to the representation are justified because the collective image of lawyers is damaged of a client.…” when they fail to report a wrong or potential wrong that comes to their Now, however, from around the country, come the attacks: attention in the course of a client representation. It is precisely • In some jurisdictions, attorneys are obligated to report a client who because of the nature of the attorney-client engagement that lawyers may commit a serious crime that endangers life or property. But, when receive this information. Are attorneys to adopt the role of gate- and by whom is this determination to be made? Seemingly, after the keepers for society or snitches for the government, or are attorneys fact—and by a bar disciplinary committee, not a jury. the protectors of individuals? I learned in law school that we are the • Regulations under I.R.C. Section 1099 require attorneys to report latter. If we become the former, the distinction between lawyers and money received for the benefit of a client and distributed through the plumbers is reduced to the level of required education and tasks client’s trust account. It is not enough to report the transfer of funds; performed. Nor are lawyers let off the hook because they can find a the attorney must disclose the recipient (the client). This is an obvi- rule, such as ABA Model Rule 1.6(b)(4), ous erosion of the confidentiality provision and places the attorney that says it is acceptable to violate the between the power of the federal government and the disciplinary confidentiality of client communications. power of the state under California’s Rules of Professional Conduct. Unless the trend toward making • The Justice Department claims that conversations between attor- lawyers agents of the government is neys and suspects of terrorism are subject to eavesdropping. reversed, there will be little or no differ- • The Sarbanes-Oxley Act provides that attorneys must report mis- ence between lawyers and other profes- feasance of a corporate employee up the chain of corporate com- sionals. After all, other professionals are mand. It is now being debated whether the attorney should be oblig- smart, can solve client problems, and ated to report misfeasance to authorities outside the corporate entity, can provide quality service. However, no such as to the SEC, or to resign the engagement. other professional is clothed with the These disturbing new requirements may place attorneys in a mal- same, extensive mantle of confidentiality. Edward Poll is a practice Catch-22. They may be open to malpractice claims if they do The organized bar must step forward, lawyer and certified not advise clients to be selective about what they reveal to their attor- must refuse to cower under the pressure management consult- neys, since, if they learn too much, they may become adversaries of of government and demagogues, and ant who specializes in their own clients and be required to disclose confidential information must lobby to protect the right of confi- advising law firms on to the government. On the other hand, if they do advise clients to take dentiality held by lawyers for the pro- profitability matters. care in what they reveal and the client witholds information, the tection of their clients. ■

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