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October 2015 / $4 LACBA DIRECTORYINSIDE THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION 2015-16 OCTOBER 2015 / $4 EARN MCLE CREDIT PLUS New Trial NINGs Procedure page 34 page 29 Mediation Confidentiality in Divorce page 10 Advance Healthcare Directives page 17 Voice Dictation Software Uncertain page 40 Waivers Los Angeles lawyers Kenneth D. Sulzer (right) and Robert A. Escalante appraise the current state of of PAGA representative actions and class actions page 20 FEATURES 20 Uncertain Waivers BY KENNETH D. SULZER AND ROBERT A. ESCALANTE No California appellate court has ruled that manageability concerns obligate a court to strike PAGA representative actions 29 Maroney's Minefield BY MICHAEL SHIPLEY California offers a very narrow procedural gateway but broad substantive grounds for a new trial Plus: Earn MCLE credit. MCLE Test No. 250 appears on page 31. 34 Considering NINGs BY NEIL SCHOENBLUM AND CATHERINE COLOMBO Subject to caveats such as trustee residency, the Nevada incomplete gift non-grantor trust may benefit Californians with substantial investment assets Special Pullout Section 2015-2016 Los Angeles County Bar Association Directory Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 On Direct 40 Computer Counselor Bar Association Silvia R. Argueta Directions for using voice recognition October 2015 INTERVIEW BY DEBORAH KELLY sofeware in legal practice BY PAUL D. SUPNIK Volume 38, No. 7 9 Barristers Tips Recent developments in special needs 44 Closing Argument COVER PHOTO: TOM KELLER trust caselaw What to do when a witness answers BY AURORA BASA “I don’t know” at trial BY MATTHEW D. TAGGART 10 Practice Tips The effect of Lappe upon mediation 42 Index to Advertisers confidentiality in divorce cases BY CLAUDIA RIBET LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, 43 CLE Preview except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage 17 Practice Tips paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association mem- Incorporating personal values into bership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be sub- advance healthcare directives mitted six weeks in advance of next issue date. POSTMASTER: BY MARSHALL S. ZOLLA Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 10.15 VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair DONNA FORD Articles Coordinator TED M. HANDEL Assistant Articles Coordinator JOHN C. KEITH Secretary SANDRA MENDELL Immediate Past Chair MARY E. KELLY JERROLD ABELES (PAST CHAIR) K. LUCY ATWOOD ETHEL W. BENNETT EMPLOYMENT LAW REFERRALS SCOTT BOYER EMILY BRAILEY Paying Highest Referral Fees (Per State Bar Rules) CHAD C. COOMBS (PAST CHAIR) HON. MICHELLE WILLIAMS COURT SAMIRE K. ELHOUTY Honored to receive regular employment referrals from GORDON K. ENG over 100 of Californiaʼs fi nest attorneys STUART R. FRAENKEL MICHAEL A. GEIBELSON (PAST CHAIR) CHRISTINE D. GILLE Stephen Danz 877.789.9707 & Associates SHARON GLANCZ STEVEN HECHT (PAST CHAIR) Main offi ce located in Los Angeles and nearby offi ces in Pasadena, Orange County, Inland Empire & San Diego DENNIS HERNANDEZ ERIC KINGSLEY Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 KATHERINE KINSEY DANIELLE LACKEY JENNIFER W. LELAND PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU PAUL OBICO TYNA ORREN CARMELA PAGAY DENNIS L. PEREZ (PAST CHAIR) GREGG A. RAPOPORT GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) STEVEN SCHWARTZ HEATHER STERN MATTHEW D. TAGGART DAMON THAYER COZETTE VERGARI THOMAS H. VIDAL STAFF Editor ERIC HOWARD Art Director Confidence At The Courthouse. LES SECHLER Director of Design and Production Business litigation is increasingly complex. That is why we believe valuation PATRICE HUGHES issues must be addressed with the same meticulous care as legal issues. Analysis must be clear. Opinions must be Advertising Director defensible. Expert testimony must be thorough and LINDA BEKAS articulate. HML has extensive trial experience and can Administrative Coordinator provide legal counsel with a powerful resource for expert MATTY JALLOW BABY testimony and litigation support. Copyright © 2015 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro - For More Information Call 213-617-7775 hibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). Or visit us on the web at www.hmlinc.com The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS 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 October 2015 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org LACBA EXECUTIVE COMMITTEE President PAUL R. KIESEL President-Elect MARGARET P. STEVENS Senior Vice President and Treasurer MICHAEL K. LINDSEY Vice President DAVID K. REINERT Assistant Vice President BRIAN K. CONDON Assistant Vice President DUNCAN W. CRABTREE-IRELAND Assistant Vice President HON. BRIAN S. CURREY Immediate Past President LINDA L. CURTIS Barristers President ROBERT S. GLASSMAN Barristers President-Elect DAMON A. THAYER Chief Executive Officer/Secretary SALLY SUCHIL Chief Financial & Administrative Officer BRUCE BERRA General Counsel & Chief Administrative Officer W. CLARK BROWN BOARD OF TRUSTEES HARRY W.R. CHAMBERLAIN NATASHA R. CHESLER REBECCA A. DELFINO MIGUEL T. ESPINOZA KENNETH C. FELDMAN JO-ANN W. GRACE HARUMI HATA STACY R. HORTH-NEUBERT SAJAN KASHYAP MARY E. KELLY LAVONNE D. LAWSON F. FAYE NIA ANNALUISA PADILLA JUAN A. RAMOS SARAH V.J. SPYKSMA DAVID W. SWIFT JEFF S. WESTERMAN ROXANNE M. WILSON AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES Los Angeles Lawyer October 2015 5 ave yoU thoUght aboUt contribUting to Los Angeles Lawyer bUt wondered who oUr readers are? The HLos Angeles CoUnty Bar Association also want ed to learn more aboUt Los Angeles Lawyer’s readership, and so com mis sioned a national research company to condUct a survey to find out more about the readers, their work, and which articles are of most interest to them. The results indicate that 60 percent of those responding are regular readers of Los Angeles Lawyer and have read at least three of the last four issUes. Older lawyers read the magazine more, with more than 82 percent of lawyers over the age of 65 reading the magazine regularly, while only approximately 26 percent of lawyers Under the age of 35 read the magazine regUlarly. Most respondents read only one or two articles that appeal to them, and spend an average of 35 minutes reading each issue. There were several types of articles in Los Angeles Lawyer magazine considered: Practice Tips, featUre stories (inclUding those articles offering MCLE credit), Closing ArgUments, Barristers Tips, and the CLE preview. Almost 90 percent of respondents to the survey had a moderate to strong interest in Practice Tips and features, which focus on substantive legal issues. Unsurprisingly, lawyers age 35 and under had twice the interest in the Barristers Tips than the older lawyers. More than 64 percent of respondents read the magazine to stay apprised of cUrrent law, and about one third clip or copy articles of interest. Many place a copy of the Los Angeles Lawyer in the lobby or reception area of their firm. Respondents’ firms had an average of 35 employees, and the majority of respon- dents had a household income between $100,000 and $350,000. The largest per- centage (42.8) of respondents had a litigation practice, followed by bUsiness (24.7), and real property (24). Following behind these practice areas were labor and employment; tort; wills, trusts, and estates; commercial; and corporate. The respondents also expressed interest in other LACBA benefits. A majority of respondents to the survey had a strong or moderate interest in the Daily eBriefs as well as LACBA’s events, sections, calendar, and other pUblications. One interesting point is that approximately 60 percent of respondents were male and 40 percent female. Females represented approximately 62 percent of the respondents under the age of 35. The gender gap is enormous in the group of respondents over the age of 65—83 percent male and 17 percent female. It is a glorious time to be a young female lawyer in Los Angeles. Respondents who read Los Angeles Lawyer regularly read it with twice the fre- quency of the Daily Journal, and more than California Lawyer, the ABA Journal, and the Metropolitan News. The moral of the survey is that Los Angeles Lawyer has a strong reader base among lawyers in Los Angeles. If you would like to let other Los Angeles attorneys know of your expertise, consider submitting an idea for an article, or an article, for consideration and possible publication to Eric Howard, the editor. He can be reached at [email protected]. We are always on the lookout for articles written by and for lawyers on substantive legal issues, and according to our recent reader survey, that appears to be exactly what Los Angeles lawyers like to read.
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