Laughing Matters Jerry Meandering

A Partner with Kasowitz Benson Torres LLP, Jerold Oshinsky has more than 35 years of experience litigating insurance cases in federal and state courts throughout the country. Chambers USA consistently has designated him as the only lawyer to be accorded “Star” ranking in its national insurance category. Jerry has been a resident of Montecito for 14 years. Demystifying the Superior Court

Since graduating from UCSB in 1992, Christopher has worked with local individuals and families as a financial planner. He is a Vice President with UBS Financial and holds the CFP, CIMA, and CPWA credentials. He can be reached at christopher.t.gallo@ubs.com or 805-730-3425.

Medicare Explained

This latest article in my series of legal columns is written to demystify our local Superior Court, which is where our significant Santa Barbara lawsuits will be filed.

Judicial Disqualifications

Q: Can you disqualify the judge that was assigned to your case for any reason or no reason?

A. The surprising answer in California is yes. Each party to a lawsuit has the right to disqualify the judge assigned to the case with or without cause. That really is not much of an issue here in Santa Barbara where we have excellent Superior Court judges who hear civil cases and we usually have no reason to recommend to clients that they exercise this option. But, if for any reason a party wishes to have its case heard by a different judge, they have the absolute right to make that request. That can be a problem here in Santa Barbara if there are more parties to a case than available judges, and each party exercises its disqualification privilege. In that case, a judge would have to be brought in from another courthouse to hear the case. That is much less of a problem in Los Angeles with its vast number of Superior Court judges.

“Tentative Opinions” Are Tentative opinions really tentative?

My experience is no. Many years ago, when I was an attorney in New York City, one of my partners had flown to California to argue a case in a California court and, much to his chagrin, was handed a copy of the court’s opinion prior to the argument that he flew to California to present. That, though, is the normal practice in California when we file a motion with the court seeking rulings on procedural or substantive issues. We typically receive the Court’s opinion a day or two prior to the hearing scheduled to rule on the issues presented to the court for decision. We then have the choice to accept the opinion or request an opportunity to challenge the result in court. While the pre-argument opinion is referred to as “Tentative,” I can recall very few instances when the Tentative opinion did not become the final opinion in every respect. That practice puts a high premium on making sure that the written legal briefs are clear, precise and persua

• The Voice of the Village • MONTECITO JOURNAL 23 M ost people think of Medicare as the health insurance nirvana: get to age 65 and there’s a free healthcare plan waiting to take you through retirement. With political debate centering around expanding the program, it’s important to understand what it will provide and what it won’t.

First, who qualifies? With more than 50 million people currently using Medicare, one might think that everyone does. In fact, there are some specific rules. Namely you must be a US citizen, have reached age 65 and must have been a permanent resident of the US for five continuous years prior to applying. Moreover, in order to receive free benefits, you must have paid into social security for at least 10 years (40 quarters).

Next, core Medicare comes in three different plans, each with its own costs and coverage. Part A: Hospital Insurance

This is the no-premium portion of Medicare for most people. It covers hospital visits and some rehabilitation related to an acute – not ongoing – medical need. Each health incident comes with a new 2020 deductible of $1,408 that the patient must pay before Medicare kicks in. Part B: Medical Insurance

This portion covers services by doctors and healthcare providers for doctor visits, lab work, surgeries, and more. Part B is paid for by monthly premiums and by cost sharing by the patient of 20% of covered costs. The premium for 2020 is $144.60 per month but is subject to increases if your income is above certain thresholds. Many high income payers will face premiums of nearly $500 per person in 2020, per month for this coverage. Part D: Prescription Drugs

A prescription drug plan that is offered by private insurers which has both a monthly premium and a co-pay. The average plan costs $50 per month per person but again comes with a high income surcharge that can bring the monthly payment to $136. .

What income affects Medicare premiums? Medicare considers the income from your prior year tax return (income from two years ago) in pricing the next year’s premiums. It includes income from any taxable source along with capital gains and it also includes income from tax-exempt municipal bonds.

Those are the three core plans. There is also private “Medigap” insurance available to cover some of the limits and costs of Parts A and B although costs can be high. A private plan alternative (often referred to as Part C) exists which is offered by many private insurers, which can be more comprehensive and in some cases less expensive.

Another note is to sign up just before or near your 65 th birthday. Both Part B and Part D raise the costs significantly for delayed enrollment. sive because they will almost always provide the only opportunity that we have to argue motions presented to the court for decision. These might include motions to dismiss, motion to compel discovery, motions for summary judgment, or motions to limit trial testimony (motions in limine). Unpublished Opinions

Does unpublished have the same meaning in 2020 as it did in 1820?

Apparently in California the answer is yes. An important issue is whether we can cite unpublished judicial opinions to establish the principles of law that we intend to rely upon in subsequent cases. Unless the opinion would be binding on the subsequent case, it cannot be cited if it is not published in a book with a hard cover. I recall arguing a case and citing to a well-known weekly soft covered journal containing up to date judicial decisions, but the judge said that he could only consider decisions published in a hard-covered book. That requirement frankly makes no sense especially when we receive by email the Tentative opinions that I referred to in the prior section of this article. Similarly, Law360, a legal research and reporting tool, presents us daily with important new decisions and a helpful summary of the issues decided in the opinion. I receive Law360 reports in every area of law which I practice. There are other helpful online services as well. The local Santa Barbara court has issued many thoughtful decisions in my firm’s cases in the 17 years that we have lived in Santa Barbara. Those decisions cover the gamut from insurance coverage issues for antitrust cases, or for cyber liability, directors and officers insurance, the interplay between federal and state courts, the scope of the attorney client privilege and many other issues. Yet, most if not all of the decisions are not published in books with hard covers in the traditional sense. Thus, their value as legal precedent is lost if they cannot be cited. Blackstone’s Commentaries

Does anyone in the modern era still rely upon Blackstone’s Commentaries?

I know one judge who did so. I was arguing a case in Nashville, Tennessee and had properly cited in my legal brief many published opinions in books with hard covers. Nevertheless, my local Nashville counsel informed me that our trial judge only relied upon Blackstone’s Commentaries, a multi-volume legal treatise named after Judge Blackstone who initially prepared this treatise in the 18th century around the time of the American Revolution. Sure enough, we were invited into the judge’s chambers for a conference and on his shelf behind his desk were Blackstone’s Commentaries and no other legal books.

Prior to the next hearing, I studied up on Blackstone’s Commentaries and became an expert for a day in English Jurisprudence in the 18th Century! The moral of this story is “When in Rome (or Tennessee), do as the Romans do.” Conclusion

Judicial disqualification, Tentative opinions and unpublished opinions are just a few of the many issues that attorneys confront every day in order to properly represent their clients in California state courts. •MJ