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The Civility in Lawyers' Writing Across the The Official publication of the Third Quarter 2015 San Joaquin County Bar Association Civility in Lawyers’ Writing Pg. 6 Also In This Issue: » 2016 MCLE Masters Series Pg. 34 » An Uber-important Question: Independent Contractor or Employee? Pg. 13 » Healing the Psychological Wounds of Divorce Pg. 23 » Under Oath: Cathy Huston Pg. 29 » 2015 Retrospective The San Joaquin County Bar Association San Joaquin county Bar Association Board of Governors and San Joaquin County Bar Foundation Board of Directors Moses Zapien..............................President James Morris...............................President-Elect Allan Jose....................................Past President Erin Guy Castillo.........................Secretary Nelson Bahler Lisa Miles Fugazi 20 North Sutter Street, Suite 300 Michael C. Belden Cheryl R. Jacobsen Stockton, CA 95202 Mia S. Brown Allison Lafferty (209) 948-0125 Alan Coon Zoey Merrill Fax: (209) 948-1361 Jenny D. Dennis Clifford W. Stevens www.sjcbar.org San Joaquin County Bar Association ACROSS THE BAR COMMITTEE MEMBERS Rebekah Burr-Siegel, Michael R. Tener....................... Editor/Chair Executive Director [email protected] Janette Rossell Fernanda Pereira Mario Padron, Terry Costa Joseph Ferraro CAC [email protected] Scott Rooker Ricardo Aranda Linda Mussat, Clifford Stevens Rebekah Burr-Siegel CAC Coordinator/ Deputy [email protected] Dru Hunt Natalie Vernon Jennifer Riggs, MCLE [email protected] Fatima Ruelas, To contact us via email - [email protected] LRS [email protected] Natalie Vernon, Across the Bar is published quarterly by the Communications [email protected] SJCBA. Subscription rate is included in LRS...............................................LRSRequest@sjcbar.org membership dues, or $50 per year for non-members. Across the Bar welcomes letters and article suggestions • from readers. The SJCBA reserves the right to edit comments or letters to the editor. Please send e-mail to [email protected]. San Joaquin County Bar Foundation Submissions and advertising deadline http://disputeresolution.sjcbar.org 1st of the month prior to publication. Submit your articles to [email protected]. Rebekah Burr-Siegel, Executive Director [email protected] The opinions expressed in this publication are those Paula Turocy, of the authors only and do not necessarily reflect those Program [email protected] of the San Joaquin County Bar Association. The Carla Wolf, information contained in this publication is not intended Lead [email protected] as legal advice and may not be relied upon as such. Page 2 Across the Bar Third Quarter 2015 Contents 13 6 11 16 18 21 23 33 28 29 34 Features 6 Civility in Lawyers' Writing Douglas E. Abrams 11 Recap: New Lawyers Reception 13 The Uber-Important Question: Independent Contrator or Employee? Ricardo Z. Aranda and Nicholas S. Seliger 16 Recap: Law Day Luncheon 18 New Courthouse Progress Rosa Junqueiro 21 Recap: SJCBA's 75th Anniversary Celebration 23 A Child Divided: Healing the Psychological Wounds of Divorce Dr. Thomas Maples 28 Recap: Annual Meeting and Luncheon 29 Under Oath: Cathy Huston Grey Galluzi 33 Recap: MCLE on Damages in Personal Injury Cases Susiejane Eastwood 34 Masters Series 2016 Departments 4 Editor’s Notes 40 Calendars & Member Events 43 Classifieds Third Quarter 2015 Across the Bar Page 3 Editor’s Notes Michael R. Tener n his well-researched feature article On a positive note, on page 27, the Young beginning on page 6, University of Lawyers Section of the San Joaquin County Bar Missouri law professor Douglas E. Abrams Association announces the award of its annual expounds on the need for civility in the legal scholarship to Mushel Kazmi, a member of the profession. Building upon observations University of the Pacific’s Pacific Legal Scholars Ifrom figures as wide-ranging as Justice Sandra Day program. O’Connor and President John F. Kennedy, Professor Later in this issue, Cathy Huston explains why Abrams illustrates how uncivil behavior not only her father is her hero, what bad behaviors bother her fails to persuade but tends to backfire. the most, and how she did performing for a New This issue also announces the 2016 Masters England Patriots pregame show. Grey Galluzi places Series, featuring a judge’s roundtable on best and Cathy "Under Oath" on page 29. worst courtroom practices, updates in probate and Finally, this issue contains Across the Bar’s 2015 employment law, basics courses on criminal law retrospective, recapping the New Lawyers Reception, and civil appeals, family law issues for the lesbian/ Law Day Luncheon, the San Joaquin County Bar gay/bisexual/transgender community following the Association’s 75th Anniversary Celebration and the U.S. Supreme Court’s recent decision recognizing Annual Meeting, all with photos. same-sex marriages, legal ethics, Americans with Across the Bar is available to SJCBA members Disabilities Act reforms, the admissibility of both electronically and in hard copy format. e-discovery, and identification of income of self- Members can access Across the Bar via e-mail and employed litigants for purposes of calculating In Brief; on SJCBA’s website, www.sjcbar.org; or support obligations. See page 39 for the Masters in their mailboxes. Please visit SJCBA’s website to Series registration form. review back issues of Across the Bar. Also in this issue, Ricardo “Richie” Aranda of The Across the Bar Committee is always Neumiller & Beardslee and University of the Pacific interested in new members and contributors. If you McGeorge School of Law student Nicholas Seliger are interested in writing for Across the Bar, please address an Uber-important question: whether Uber contact Michael Tener at [email protected]. drivers are independent contractors, as that company maintains, or whether they are Uber employees, as the California State Labor Commissioner recently Michael R. Tener is an attorney ruled. Richie and Nick tackle this intriguing with Neumiller & Beardslee in Stockton question of employment law on page 13. practicing civil and bankruptcy litigation. Contact Michael at (209) 948-8200 or Next, San Joaquin County Superior Court’s [email protected]. chief executive officer, Rosa Junqueiro, provides an illustrated update on the construction of the new Stockton courthouse beginning on page 18. This issue also examines one of the most devastating consequences of marital dissolution: the fear, confusion, and loss experienced by the children of divorcing couples. Beginning on page 23, Dr. Thomas Maples describes the trauma that these children may experience and offers important perspective for family law practitioners on the behaviors that can create or exacerbate lingering emotional and developmental problems for those children. Page 4 Across the Bar Third Quarter 2015 FCCU for All Your Financial Needs! (No Argument!) As a member of the San Joaquin County Bar Association, you’re Joaquin, Financial Center is the most trusted credit union in the privy to an exclusive benet—Financial Center Credit Union Valley. Time and time again, we oer our members the lowest membership for you and your sta! rates on their loans as well as the safest place to save their money. In a time when the safety and soundness of funds is at the Follow your logic and call us today. And don’t forget to pass this forefront of everyone’s minds, Financial Center membership is message onto your sta – they (and their wallets!) will thank you. the perfect solution for peace-of-mind. Voted Best Of San 209-948-6024 • www.fccuburt.org Federally insured by the NCUA. Third Quarter 2015 Across the Bar Page 5 Civility in Lawyers' Writing Douglas E. Abrams Part III describes how incivility in writing can also compromise both the lawyer’s own personal enrichment and the lawyer’s professional standing among the bench and bar. I. “[C]ivility is not a sign of weakness,” President John F. Kennedy assured Americans in his Inaugural Address in 1961 as he anticipated four years of face- offs with the Soviets.9 “Civility assumes that we will disagree,” says Yale law professor Stephen L. Carter, “[i]t requires us not to mask our differences few years ago, American Bar but to resolve them respectfully.”10 The advice Association President Stephen prevails, regardless of whether incivility pits lawyer N. Zack decried the legal on lawyer, or whether it pits lawyer against the court. profession’s “continuing slide Each of the two manifestations of incivility warrants into the gutter of incivility.”1 An a representative example here. AABA resolution “affirm[ed] the principle of civility as a foundation for democracy and the rule of law, Lawyer-On-Lawyer Incivility and urge[d] lawyers to set a high standard for civil When Chief U.S. Bankruptcy Judge Terrence L. discourse.”2 Michael (N.D. Okla.) recently considered whether The ABA initiative echoes federal and state to approve a compromise in In re Gordon, the courts that call civility “a linchpin of our legal contending lawyers in the Chapter 7 proceeding system,”3 a “bedrock principle,”4 and “a hallmark detoured into written lawyer-on-lawyer invective.11 of professionalism.”5 Justice Anthony M. Kennedy In a filing to support its motion to compel says that civility “defines our common cause in discovery from the bankruptcy trustee in Gordon,
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