Volume 26 • Number 1 2013 THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA Editorial Opinion Section Update By Lisa Cappelluti Lisa Cappelluti his journal is presented to and an Advisory Panel of esteemed ins and outs of the courtroom. We you by the State Bar’s Liti- judges and past members. The Ex- have been honored to have several T gation Section. The Section ecutive Committee organizes and judges as presenters for this seminar was established in 1983 to promote produces continuing education pro- including Judges James P. Kleinberg, and further develop educational pro- grams and seminars, provides recog- Winifred Smith, Lawrence W. Crispo, grams for new and experienced prac- nition to outstanding attorneys Victoria Chaney, James L. Warren, titioners across the state of Cali- through its Annual Trial Lawyer Hall Harold Kahn, and Elizabeth Feffer fornia. Our voluntary membership of Fame Award, provides outreach from Los Angeles and San Francisco. association is comprised of a very and training for new lawyers, and Coaching for the New Practitioner diverse group of professionals with a service to the greater community by will be held again this year in both shared interest in the betterment of assisting in the collection of profes- Northern and Southern California. the profession through current edu- sional clothes for job-hunters in The following programs were pre- cational programs and State Bar need. sented by the Litigation Section at activities. Last year, in 2012, a total of Our Section is actively involved the 2012 State Bar Annual Meeting: 9,200 attorneys enrolled as members throughout the year developing and • Negotiating and Drafting of the Litigation Section and, as your producing litigation education for Effective ADR Agreements. new incoming Chair of the Executive active and experienced practitioners, • ADR Update: Arbitration and Committee, I am hoping to reach and assisting and mentoring new Mediation Legal Developments. 10,000 members in 2013. practitioners. For the last four years The Section is led by the Liti- we have presented Coaching for the (Continued on Page 48) gation Executive Committee com- New Practitioner, a seminar de- posed of 15 experienced attorneys signed to teach new attorneys all the California Litigation Vol. 26 • No 1 • 2013 Volume 26 • Number 1 2013 THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA Inside Editorial Opinion: Section Update By Lisa Cappelluti 2 Letters to the Editor 3 Editor’s Foreword: The Way We Litigate Now? By John Derrick 4 Warning: The Internet May Contain Traces of Nuts (Or, When and How to Cite to Internet Sources) By Paul J. Killion 9 A Fresh Approach for a New Day By Judge Steven Jahr, Director, Administrative Office of the Courts 15 To Cite or Not to Cite? That Is the Question Citing Unpublished Decisions in California State and Federal Courts By Benjain G. Shatz and Emil Petrossian 21 Bring Your Own Court Reporter By Robert Cooper 25 Judicial Discretion Advised: A Critique of California’s Per Se Disqualification Rule in Concurrent Representation Cases By Mark T. Drooks and Jessica S. Chen 30 An Unresolved Issue: Article III Standing for Statutory Damages By Michael A. Geibelson and Joel A. Mintzer 35 Ninth Circuit Attorney Fee Awards & De Novo Review By Audra Ibarra 39 New Lawyers: The New Trial Lawyer By Neil Berman 41 ADR Update: California Arbitration in the Wake of Concepcion By Paul J. Dubow 44 “I Learned about Litigating from That” The Corporate Crack By William M. Shernoff 46 McDermott on Demand: Book Review The Partisan: The Life of William Rehnquist Reviewed By Tom McDermott 1 Letters to the Editor EDITORIAL BOARD John Derrick Santa Barbara, Editor-in-Chief just finished reading “Id., Ibid. And All that Stan Bachrack, Ph.D. Los Angeles, Managing Editor Sharon J. Arkin Los Angeles Stuff: What You Always Wanted to Know But Winnie Cai Goleta Never Dared to Ask” published in “California Paul Chan Los Angeles I Thomas C. Corless Los Angeles Litigation, November 2012 issue. Whew! I hope I prop- Kathryn M. Davis Pasadena Paul J. Dubow San Francisco erly copied and quoted this title! If not, to the Saji Dias Gunawardane Santa Barbara California Style Manual (“CSM”) I will direct myself. Russell Leibson San Francisco Thomas J. McDermott, Jr. Palm Desert Your article is great. I plan to photocopy it and tape Hon. Wm. F. Rylaarsdam Santa Ana Jill Jackman Sadler Paralegal Support it to the window near my office computer. I am a long Benjamin G. Shatz Los Angeles practicing attorney (admitted in 1978) and am caught Hon. Helen Williams San Jose Susan E. Anderson Wise Long Beach between the Blue Book and the CSM every time I file a Joan Wolff San Francisco pleading or brief. Yee gads, is a pleading a brief? LITIGATION SECTION EXECUTIVE COMMITTEE Lisa M. Cappelluti San Francisco, Chair Please don’t judge me harshly; the holiday season cre- Robert M. Bodzin Oakland, Vice Chair ates legal writing skills self-doubt. Carol D. Kuluva Los Angeles, Treasurer Reuben A. Ginsburg Los Angeles, Secretary Anyway, your article wedged beneath the other fine Michael A. Geibelson Immediate Past Chair Farzaneh Azouri Woodland Hills writers’ diatribes/reassurances about the brutality of Kathleen Brewer Westlake Village David P. Enzminger Los Angeles our court budget cuts and the breast beating of fine Eric P. Geismar Northridge jurists about the horrors that await for lack of enough Ruth V. Glick Burlingame J. Thomas Greene San Francisco money to buy 1985 style court services in the future, Jewell J. Hargleroad Hayward was like an oasis in the desert. My immediate reaction Rhonda T. Hjort San Francisco Megan A. Lewis Sacramento was: I can use this! Karen J. Petrulakis Oakland William Seligmann Santa Cruz So, to close and not waste your, my, or the Michael R. Sohigian Los Angeles Edward A. Torpoco San Jose Internet’s resources, I send you a thank you which is Donald W. Barber Whittier, Advisor direct and sincere. Man the barricades of proper legal Charles Berwanger San Diego, Advisor Paul Chan Los Angeles, Advisor citation. We owe it to Fitzgerald, Hemingway, and Justice Victoria Chaney Los Angeles, Advisor Hon. Lawrence W. Crispo (Ret.) Pasadena, Advisor William Boyd (a favorite British author). Excellence Tanja L. Darrow Los Angeles, Advisor can be delivered even by the poor, non-BMW driving Hon. J. Lynn Duryee San Rafael, Advisor Elizabeth A. England San Francisco, Advisor attorneys in California who recognize that doing it Michael Fabiano San Diego, Advisor right matters. Proper citations read by an overbur- Terry Barton Friedman Santa Monica, Advisor Hon. J. Richard Haden (Ret.) San Diego, Advisor dened trial judge are a bit of Mozart in the same Kevin J. Holl San Francisco, Advisor Jamie A. Jacobs-May San Jose, Advisor desert from whence your citation pearls have Mark A. Mellor Riverside, Advisor appeared. I plan to do better. Eileen C. Moore Santa Ana, Advisor Bradley A. Patterson Irvine, Advisor Hon. Ronald S. Prager San Diego, Advisor Very truly yours, Norm J. Rodich Irvine, Advisor Jerome Sapiro, Jr. San Francisco, Advisor Hon. J. Richard Haden (Ret.) San Diego, Advisor Hon. James P. Kleinberg San Jose, Advisor Laurie Butler Hon. Ronald S. Prager San Diego, Advisor Santa Monica Attorney e. robert (bob) wallach San Francisco, Advisor Hon. James L. Warren (Ret.) San Francisco, Advisor Joan Wolff San Francisco, Advisor Mitch Wood Section Coordinator Ana Castillo Administrative Assistant Editor’s response: Many thanks, Laurie. Actually, . you didn’t quite cite it correctly, but we’ll forgive Copyright 2013, State Bar of California The opinions contained in this publication are solely those of the you. There has even been talk of having the Liti- contributors. gation Section laminate that article and make it a California Litigation is pleased to review original articles submitted for publication. Articles should be 1,000-2,000 words. Please submit hand-out at events. We shall see. William Boyd is, proposed articles – and Letters to the Editor – to John Derrick, at indeed, an excellent author. I recommend An Ice [email protected]. To subscribe: Cream War and A Good Man in Africa to get start- California Litigation is mailed free to all members of the Litigation ed. By the way, we would like to publish more Section of the State Bar of California. To join the Litigation Section, send your name, address, telephone number, and State Bar membership readers’ letters — and they need not all be ones number to Litigation Section, State Bar of California, 180 Howard singing our praises. Best to email them to me at: Street, San Francisco, CA 94105-1639. Section dues are $75 per year and should be enclosed with the enrollment information. [email protected]. 2 Editor’s Foreword The Way We Litigate Now? By John Derrick cial court reporter services for law- Petrossian explain. John Derrick yers needing to make a record. Not As the table of contents shows, by long ago, that would have been utterly no means everything in this issue in fanciful. Today, that is less so — Los hinted at in the front cover illustra- Angeles, the largest county in the tion. For example, following on from he front cover of this issue state, has discontinued court-provid- some articles in the last issue, and, in draws on a few articles in ed reporter services for most civil pro- particular, one that was very critical T this edition, at least a cou- ceedings, so the age of BYOR (“bring of the Administrative Office of the ple of which reflect the way we liti- your own reporter”) is upon us. And Courts, that entity’s Director, Judge gate now. There’s a judge gazing at a maybe, indeed, advertisements in Steven Jahr, gives his perspective on Wikipedia screen.