San Diego Lawyer March/April 2017 by San Diego County Bar Association

ÂŽ ÂŽ MAR/APR 2017

Experts:

Advice from top trial attorneys

The How, when and why

PLUS

Are you truly listening to your clients? Open Dialogue: When your Law partner is your father

Congratulations to our partner

Robert J. Francavilla, Esq. recipient of the

2017 Trial Lawyer of the Year Award by the Consumer Attorneys of San Diego

www.caseygerry.com Dedicated to the Pursuit of Justice since 1947 SERIOUS PERSONAL INJURY, MARITIME, AVIATION, PRODUCT LIABILITY, CLASS ACTION, MASS TORTS AND PHARMACEUTICAL LITIGATION

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CONTENTS

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JUDGE DEVANEY'S JOURNEY • INTERNET PIRACY • IMPACT FROM KATRINA TM

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

J A N UA RY / F E B RUA RY 2 0 0 6

EMINENT DOMAIN:

A GROWING ISSUE

Page

20years

Page

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

NOV/DEC 2008

Columns

Features JAN/FEB 2017

Jerrilyn Malana

NEW VISION

How to Hire a Forensic Expert Keys to vetting a forensic expert for your case. Dan ByLinkMike Wakshull NOV/DEC 2010

SDCBA’s New President PLUS

Spotlight on Diversity Page 22

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

SDCBA’S NEW PRESIDENT

Citizens United Impacts San Diego

24 SANDIEGOLAWYER

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NOV/DEC 2009

THE JOURNAL OF THE DIEGO COUNTY SAN SAN DIEGO COUNTY BAR ASSOCIATION

JAN/FEB 2010

Open Dialogue When your law partner is also your father. By Christine Pangan

THE 2010 SDCBA PRESIDENT STICKS TO HIS GOALS

HOW THE JUDICIAL SYSTEM WORKS

SUPPORTING DIVERSITY PAGE 18

BATTLING THE DRUG WARS PAGE 30

LAWYERS WHO ROCK PAGE 30

SPACE LAW TAKES OFF

PAGE 34

ANOTHER ROAD TO A LAW DEGREE PAGE 18

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

NOV/DEC 2012

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

SEPT/OCT 2012

Dean Niels Schaumann, Dean Stephen Ferruolo & Dean Rudy Hasl

over the past 20 years! San Diego

SDCBA’s New President

Learning:

By Cheryl Weeks-Frey

Local law schools provide real-world training

+PLUS

San Diego Law Schools by the Numbers Advice for Solo Practitioners

Overcoming Biases Against Lawyers with Disabilities Lawyers in the Military

Effective SANDIEGOLAWYER SANDIEGOLAWYER Deans Being An Expert winning publication because of BAR CENTER Communication 40 at 401 The law school’s role in shaping on Experts With Clients San Diego County to School: practitioners. r. Williams How to use anBack expert effectively. your outstanding contributions.future legal Jon Clients want to be heard — Bar Foundation By Thomas Guernsey + By Olga May www.sdcba.org/sandiegolawyer + are you truly listening? 10 reasons to "give an hour." By Renée Galente SANDIEGOLAWYER SANDIEGOLAWYER THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

MAR/APR 2013

The Obstacle Path of Social Networking

6:22 PM

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

32 to be an awardLawyer continues

A Visit to an English Inn

Judge Gill’s Jury Remarks

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SANDIEGOLAWYER

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SEP/OCT 2013

The

k l:

PLUS

11/13/09

Deposing an Expert Witness Thank you to the hundreds of 8 5 tips for success. people who have contributed toPresident's Page SANDIEGOLAWYER By John Gomez 39 Thoughts from throughout theMcLaughlin Bar. Marcella 112 issues and 6,576 pages San Diego Law Library By Loren Hands-On Freestone Border law is the big topic of 2017.

NOV/DEC 2011

Marvin Mizell

Local Lawyers with Global Roots

SD LAWYER_NovDec11-13a:Layout 1

Why I Belong Get to knowPatrick your colleague Inside Hosey Catherine Richardson. Immigration

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

Experts

2009 SAN DIEGO COUNTY BAR ASSOCIATION PRESIDENT

NOV/DEC 2013

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

JAN/FEB 2014

RENEW YOUR MEMBERSHIP www.sdcba.org/renew

The New Hub of San Diego's Legal Community

Justice Judith McConnell Advocates for Greater Civics Education

State of the Courts: Reports from the Bench

PLUS

SEP/OCT 2014

Outstanding

Attorney

Hon. Judith

Tom Turner

Service

to the

SDCBA Lori Mendez

Lori Boyle

by a Public

Rebecca

www.sdcba.org/renew

KEEPING THE FOCUS ON OUR FUTURE

Service

by a New

Melissa

Service

Lawyer

Community

Johanna

Public Service

SDCBA’S NEW PRESIDENT

Women Judges Rule at NAWJ Conference in San Diego

Meet the New Career Development Program Mentors

Service to the Legal Profession

Gregg McClain

Betty Evans Boone

San Diego d Program Truancy Collaborat Court ion Team

by a Law

Firm or Agency Profession al Alliance for Children

+ PLUS

Pro Bono Spotlight

M ay / JuneWays 2014 SAN DIEGO 1 How I Practice – Different ThatLAWYER Work

MAR/APR 2016

JAN/FEB 2016

RENEW YOUR MEMBERSHIP www.sdcba.org/renew

HIG HS CH OO L

M ON TO MOVING

O EDIATI

PLUS

Let's Discuss: Multi-States, Multi-Rules

THE

OutstanDing attOrney Of the year

hOn. tamila ipema

TE ROU

: IMP ACTS & SU

COmmunity serviCe

+PLUS National Attorney Groups Invade Downtown San Diego Military Branches Out: The Movement to Accept Transgendered Servicemembers

ISSUE

BrigiD CampO

serviCe By a puBliC attOrney

OutstanDing serviCe By a new lawyer

Olga Álvarez serviCe tO Diversity

puBliC serviCe By a law firm Or agenCy

Recovery & Redemption: Attorneys Who Battled Addiction and Won

37 +PLUS

Law Offices of Ben Aguilar

La Maestra Community Health Centers

EMBRACING DIVERSITY & CLOSING

Distinctions & Passings

THE GAP

PLUS

Public Service by a Law Firm or Agency

California Innocence Project

Disagreeing Without Being Disagreeable

PLUS

Inside the Conference of Delegates Pro Bono: How to Get Your Start

+PLUS

Juvenile Dependency Court: Working Towards Healing

100 Years of Women Serving on the Jury

Court Funding Cuts By the Numbers

SEP/0CT 2016

THE

SDCBA Files Amicus Brief Jury Tweets: Dos & Don’ts

JAN/FEB 2017

LAW SCHOOL’S LEGACY

Loren

Ethics Forewarned, forearmed. By Edward McIntyre

DIVERSITY ISSUE

Online Behavior Pitfalls & Warnings

Up & At 'Em 5 tips to getting your workout in before 7 a.m. By Maria Disla

including Reports from our local bench State bar court: a look at how it works A guide to our specialty courts

PLUS

Freestone

Prepares

HOW THE DECISION & PAYOFF HAS DIFFERED THROUGHOUT THE YEARS

PLUS

50th Anniversary of San Diego’s Federal Court Mediation Do’s & Don’ts

Acting the Part: Attorneys Take Center Stage

Lessons Learned from Letting Go

#sdlaw Our legal community online and around town.

2017 President

for Action

A ROUNDTABLE DISCUSSION

geOrge Brewster Jr.

san DiegO unifieD sChOOl DistriCt anD the CrawfOrD aCaDemy Of law

IN D

S CCES

LM S

EMER GING ATTOR NEYS

YO UN GL EG A

FOR

AT HF OR

JOUR NEYS

RE AT ES P

K CLER THE

MO CK TR IA

INSIDE THE DIY LAW PRACTICE

OutstanDing Jurist

freDeriCk sChenk

Ben Aguilar

Carmen Kcomt

Charles DiCk Jr.

WINNERS

U.S. Attorney’s Office

Marketing Tips for Solos

AWARD

2015

INSIDE THE COURTS: OUR ANNUAL STATE OF THE COURTS UPDATE

Andrew Haden

Our Workers’ Compensation Appeals Board

MAY/JUN 2016

SERVICE

San Diego Superior Court

Service to Legal Education

Juvenile Court Book Club

Distinguished Citizen

+ PLUS

Outstanding Jurist

Hon. Robert Trentacosta

ServiceTechnology Awards Gadgets, tips and tricks. By Bill Kammer

Distinguished Organization

de Castro, P.C.

Solos & Small Firm Practitioners Talk Shop

Inside the New Central Courthouse

Modern Mediation

Marital Dissolution: Insight from a Valuation Analyst Exploring calculation engagement versus valuation engagement. By Justin Nielsen

Audie de Castro

small talk:

J a n u a ry/ Fe b ru a ry 2 0 1 4 SAN DIEGO LAWYER 1

SEP/OCT 2015

Outstanding Service by a New Lawyer

Community Service

Toast to 20 Years 2017 marks the 20th Anniversary 2016 2016 of San Diego Lawyer. COURTS +

PLUS

SOLO PRACTITIONERS & SMALL FIRMS

New Employment Laws

The Ahrens Law Office

The Referral Rules

Labor & Employment Law Review and a Preview for the New Year

+PLUS

San Diego District Attorney’s Office

Kimberly Ahrens

Service by a Public Attorney

Richard Shaw

Service to diversity

FOCUS FUTURE

RICHARD

HUVER

Distinguishe

Service

Schiavon i

Outstanding Attorney of the Year

ON THE

Diversity Nadia Bermude z

Deleon

2013: A VISUAL YEAR IN REVIEW

No ve m b e r/ D e ce m b e r 2013 SAN DIEGO LAWYER 1

JUL/AUG 2015

Higgs Fletcher & Mack LLP

DIVERSITY &

Attorney

Kanter

MAY/JUN 2015

MAR/APR 2015

RENEW YOUR MEMBERSHIP

INCLUSION Facing Off Against a Good Expert Challenge the opinion — don’t attack the expert! By James Crosby Service

to the Legal

Profession Lilys McCoy

JAN/FEB 2015

NOV/DEC 2014

Jurist

McConnel l

Distinguishe d Citizen

MOCK TRIAL COMPETITION TEACHES REAL LESSONS IN JUSTICE

Brazilian Justice Dias Toffoli Visits San Diego

Local Lawyers Walk from SD to Sacramento

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

MAY/JUN 2014

PLUS

+PLUS

Roundtable: Leading the Way to the New Bar Center

• Law Firm Trends & Growth • E-filing Arrives in San Diego Courts

BE WHERE YOU BELONG

SDCBA’S NEW PRESIDENT

Local Leaders Make Efforts to Educate

PLUS

New Year, New Rules of Professional Conduct? Why Work on Wellness

A Mockup of the New Courtrooms

Ethics Luminaries Meet in San Diego Reflections on a recent ethics conference. By Edward McIntyre

Photo Gallery Colleagues connecting at recent events.

Correction: In the "Distinctions" column of the January/February 2017 issue of San Diego Lawyer, the information regarding Hon. Cynthia Freeland was incorrect. Hon. Cynthia Freeland was appointed as judge to the San Diego Superior Court in December 2016. San Diego Lawyer regrets this error.

Issue no. 2. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2017 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board.

4 SAN DIEGO LAWYER March/April 2017

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Co-Editors Edward McIntyre Christine Pangan

Editorial Board Craig Benner Elizabeth Blust Josh Bonnici George Brewster Jr. Jeremy Evans Victoria Fuller Renée Galente Todd Haas

Michael Hernandez Stephanie Karnavas Erik Nelson David Seto Whitney Skala Christopher Todd Teresa Warren

SAN DIEGO COUNTY BAR ASSOCIATION

Executive Director & Chief Executive Officer Ellen Miller-Sharp

Director of Outreach Strategy & Chief Communications Officer Karen Korr

Graphic Designer/Webmaster Attiba Royster

Publications Editor Jenna Little

Marketing Coordinator Sasha Feredoni

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401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 bar@sdcba.org Fax (619) 338-0042 www.sdcba.org Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer™. San Diego Lawyer™ reserves the right to edit all submissions, contributed articles and photographs at its sole discretion. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect an official position of the San Diego County Bar Association.

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Education: University of California, San Diego, B.A. 1982; University of San Diego School of Law, J.D. 1988 Areas of practice: Personal injury, inverse condemnation, civil rights actions, municipal law Proudest career moment: Being selected for an Outstanding Trial Lawyer Award by Consumer Attorneys of San Diego. The award was for a trial in which I represented a young woman who was hit by a car. She survived, fortunately, but her beloved dog was killed. Defendants were performing construction work that blocked the sidewalk and channeled pedestrians, including my client, into the street. Defendants offered $1,200 to settle, essentially telling us this was a “gift.” The jury awarded over $260,000. Ultimately, we prevailed after a motion for new trial and a writ. It was extremely rewarding to have been able to provide a measure of justice to my client and to show her that the system does work. Being recognized by my peers made it all the more special. Family: My 25-year-old son, Austin; my mom, Gloria; my brother; and two sisters. Birthplace: Bronx, New York, although I grew up on Long Island. And no, I do not have an accent! If I weren’t an attorney, I’d be a writer, investigative journalist or detective. I enjoy the challenge of uncovering the truth and solving mysteries. The best thing about being an attorney is there are so many ways we can help make the world a better place. We really have unlimited opportunities to give back to society, whether it is by protecting constitutional rights, prosecuting crimes, providing legal advice, assisting clients through the civil litigation process, teaching prospective new lawyers, or in countless other ways. Thus, every day is different, every day is challenging and every day is rewarding. Best concert you’ve ever been to: I just saw Van Morrison in Las Vegas. He sang all of his classics. It was great. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Watching and asking questions of more experienced attorneys. For example, when I started doing trials at the City Attorney’s Office, I knew I needed to improve my cross-examination skills. I asked one of the more senior litigators to help me. He sat down with me for a couple of hours and explained the way that he prepared for cross-examination. It was probably the most helpful two hours of my career as a trial attorney. For others, I would suggest that they find a mentor or another attorney they feel comfortable going to for help. Ask questions, go to seminars, learn as much as you can and never stop trying to better yourself as a lawyer. Do you have a mentor? Chris Hulburt. Although he is more of a peer (we were law clerks at the same firm 30 years ago), I have always looked to him as a mentor. He is probably the most ethical and grounded person I know. Over the years, whenever I have a question, need guidance or help, he has invariably been the person I have turned to. He has a calm, rational and reasonable presence, and I respect his opinion. What would you most like to be known for? Hopefully, for being a good person and making the world a better place, even if just a little bit. What makes San Diego’s bar so special/unique? Even though San Diego County has over 3 million people, and nearly 20,000 lawyers, the San Diego bar still has the feel of a small community. I believe this is what distinguishes us from other large cities and counties, and contributes to a more congenial legal community in San Diego. March/April 2017 SAN DIEGO LAWYER 7

an Diego is a town of lawyers and practices as varied as can be, and that’s part of what makes our community so special and dynamic. Collectively and individually, each SDCBA member contributes to the betterment of our profession and our community. The SDCBA is our professional association — we all belong here and have a valuable perspective to share. For this issue of San Diego Lawyer, I’ve invited individuals in various practices and stages in their careers to share their views on the challenges facing the profession and their individual work. Enjoy.

Loren Freestone 2017 SDCBA President

BE WHERE YOU BELONG

WHAT IS THE BIGGEST CHALLENGE YOU ARE FACING IN YOUR PRACTICE? The San Diego business market is thriving, but it is thriving with small businesses. Big law rates are often not compatible with small business budgets, so it can be a challenge to come up with alternative fee structures that suit our diverse client base and also make sense for the firm.

HALI ANDERSON Sheppard, Mullin, Richter & Hampton LLP

WHAT DO YOU THINK IS THE BIGGEST CHALLENGE TO THE PROFESSION CURRENTLY? Evolving past the billable hour. Nowadays, attorneys want to be rewarded for the quality of work, not the quantity. We want work-life balance. Additionally, clients often prefer fixed fee arrangements as opposed to billing by the hour. Both of these sentiments suggest a desire to move away from the billable hour, but the market has not yet caught up.

BIGGEST CHALLENGE IN YOUR PRACTICE As a sole practitioner and newer attorney, my practice’s biggest challenge is marketing to new clients. I don’t mean face-to-face interactions, where I can sell myself and my practice directly, but rather the big wide world of SEO, social media, pay-per-click and print advertising. Where some large firms can invest tens of thousands of dollars at a time, there is a definite competitive disadvantage. That’s why I do what I am able on those fronts, but have necessarily focused on getting clients through word of mouth referrals and community involvement. BIGGEST CHALLENGE TO THE PROFESSION Facilitating access to the law, access to justice. The portion of the population, our clients, that are low or moderate income is expanding exponentially. These individuals cannot afford traditional private attorney representation. It’s on us as an industry to offer better tailored representation at an affordable price point for as many clients as possible. If we do not modernize our model, we not only risk the loss of our own jobs and marketplace, but risk a diminishing judicial system where very few are able to afford their “day in court.” 8 SAN DIEGO LAWYER March/April 2017

ANTHONY MEDINA AM Law Group

BIGGEST CHALLENGE IN YOUR PRACTICE I am a sole practitioner with modest technology skills. Electronic communications and transmissions have been a tremendous help to me in efficiency and costs savings. However, keeping up with advances in technology affecting how lawyers communicate with clients and advocate on their behalf will be my biggest challenge. My son Sam who is a new lawyer helps me mitigate this challenge.

DON SALOM Salom Law

BIGGEST CHALLENGE TO THE PROFESSION The growth of internet based legal service vendors provides consumers access to low cost legal services in areas including business entity formation and transactions, estate planning, trademarks and patents, real estate leasing and deeds, and marital agreements. As a result, I have seen new business clients who have filed articles of incorporation and had a nice minute book but not much else. I have seen estate plans which had no assets transferred into the trust. The challenge for lawyers competing with these vendors is to demonstrate the value of their more expensive — but more personalized and thorough — legal services.

BIGGEST CHALLENGE IN YOUR PRACTICE The biggest challenge I am facing in my practice is the lack of community resources and facilities to help clients successfully transition from jail or prison to the community. There is also a shortage of beds at treatment facilities and a lack of housing resources for our homeless clients. In San Diego particularly, it is important to understand that our homeless population includes some of our military veterans (a lot of whom are dealing with Post Traumatic Stress Disorder in addition to homelessness). As a public defender, I routinely collaborate with social service providers on behalf of clients to help them get back on track in an effort to cultivate and support positive lifestyles and in turn reduce recidivism. BIGGEST CHALLENGE TO THE PROFESSION I believe the biggest challenge to the profession currently is increasing the number of individuals from diverse backgrounds in the practice and administration of law. Our bench and bar should reflect and honor the richness of the diverse cross-sections of our communities. Because of this, there is a strong need for early intervention pipeline diversity initiatives. While we must acknowledge the increase in diversity on the bench in recent years, I strongly believe that the judiciary would benefit from an inclusion of a healthy portion of public interest attorneys, public defenders, women, persons with disabilities, racial and ethnic “minorities,” and members of the LGBTQ community. Inclusiveness across the board is a win-win for all.

GENEVIEVE JONES-WRIGHT Office of the Public Defender

BIGGEST CHALLENGE IN YOUR PRACTICE I am relatively new at starting my own practice. The most challenging aspect of starting one’s own practice from scratch is learning the ropes of running one’s practice as a business. At first one has to wear all the hats associated with the operation of a business in addition to being a zealous advocate. Allocating time accordingly is a formidable challenge. There is a steep learning curve, and I am perpetually kept on my toes.

NADIR AHMED NOA-Law: Nadir Osman Ahmed Law

BIGGEST CHALLENGE TO THE PROFESSION Technology is the biggest challenge to the profession currently. It is a mixed bag. Technology has made our lives easier in the sense that we can transform our practice into a paperless practice with the use of cloud systems and virtual offices. However, simultaneously these advances create problems in privacy and security. Advancements in technology have also had a great impact in the world of eDiscovery. Lawyers of today need to learn how to handle electronically stored information (ESI) in terms of storage, privacy, security and discovery. This is a highly specialized field and often requires outside help. March/April 2017 SAN DIEGO LAWYER 9

BY THOMAS GUERNSEY

DEANS

Practice-Ready Lawyers The law school’s role in shaping future generations of legal practitioners here has been mounting pressure on law schools over the years to increase the number of practiceready lawyers. Many legal educators and attorneys have also criticized law schools for not providing students with enough real-world training. I have written in this column before that I believe this is not just a law school problem. It is a problem the profession as a whole needs to address. Practitioners (and regulators) decry that law school graduates are not “practice ready.” Practitioners need to understand that if they want to change that, they need to invest, not disinvest, in the game.

experience. The creation of the successful incubator program for recent graduates at Thomas Jefferson School of Law is a reflection of that commitment to provide more training.

Thomas Guernsey

There has been a fundamental shift in the economics of law practice. One result of that shift is large-scale abandonment of training and mentoring to its young associates. There are a number of reasons for this; chief among them is that clients refuse to pay for such training, including such former simple matters as second seating at a deposition. Now, unlike when the partners went to law school, the firms expect “practice ready lawyers.” Having said this, legal education needs to do more. A 2015 study led by the Institute for the Advancement of the American Legal System found that students who received more simulated courses and learned practical attorney skills outperformed those who had been admitted to practice law within the past two years. Law schools already provide real-world work opportunities through simulation courses, externships and in-house clinics where students work directly with clients under the supervision of a licensed attorney. The fact is that law schools provide more practical training than ever before in history and yet the profession demands we now do even more. Given the new reality law schools, of course, will continue to evolve to meet the changing demands. Demands from regulators and bar examiners make it difficult to provide sufficient training that the profession now demands within the traditional law school

In its latest effort to meet the training needs of the profession, Thomas Jefferson is expanding its experiential education offerings with an LL.M. in Practice Skills, helping J.D. degree holders meet increased demand for skills as an essential component of practicing law. This degree is slated to be available to students for the 2017 fall semester. The objective of this program is for those who already possess a J.D. to become the best attorneys they can be, providing an even higher standard of service to their clients, the courts, and communities throughout the country. Program participants will have a choice of three concentrations: Transactional Practice, Civil Litigation, and Criminal Practice. Each concentration will feature six core classes, and students will build on that core with electives taken in any discipline across the program for a total of 24 units. In that way, all program participants will have the opportunity to develop and hone their skills in critical areas such as client interaction, the business aspects of practicing law, pre-litigation and litigation, and other forms of dispute resolution. Examples of courses offered in this engaging, hands-on program include Client Interviewing & Counseling, Negotiation Theory & Skills, Law Practice Management, Deposition Practice, Litigation & Technology, and a wide variety of placements in externships and in-house, pro bono legal clinics. We as an institution owe it to our students to get them prepared to meet the rigor and challenges of legal practice in the real world. Thomas Guernsey (guernsey@tjsl.edu) is the President and Dean of Thomas Jefferson School of Law.

Law schools provide more practical training than ever before in history, and yet the profession demands we now do even more. March/April 2017 SAN DIEGO LAWYER 11

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BY BILL KAMMER TECHNOLOGY

Tips, Gadgets and Tricks

ENCRYPTION REDUX I wrote recently and suggested that 2017 was the year for encryption. Hacking is very much on the minds of Americans, and lawyers and clients are frequently discussing the need for and manner of encryption to protect client confidences from interception by the man in the middle. Clients previously were concerned with encryption in place on lawyers’ servers and systems but are now focusing on ways to ensure that emails being exchanged over the internet are protected from interception and compromise. Because of the hacks of Democratic accounts during the Presidential campaign, you may have read that certain celebrities and Washington insiders are now using encryption applications with names like Signal and Confide. Those are free applications for mobile devices and easy to install. If the sender and the recipient both have the application on their devices, then the text, picture and video messages will be encrypted from end to end and during transit. Those applications can also encrypt the users’ phone conversations. Confide messages even self-destruct after reading and cannot be forwarded, printed or saved. These recent developments suggest that things are moving faster than lawyers might suspect. Already, there are reports of clients insisting that all of their communications with their outside counsel be conducted with the assistance of these applications. Although Signal and Confide seem to have a head start in the marketplace, surely there will be competitors moving into the business.

OLD DOG, NEW TRICKS Sometimes we don’t have our mobile phone or tablet in the office or at hand, but we want to send someone a text message. Years ago, sending a text message involved a cumbersome protocol that required typing the phone number as the username at the front end of an email address. Not until 1997 did phones even have full keyboards. And you had to know the identity of your correspondent’s mobile provider. Those distant days are gone and probably forgotten. Texting today is far simpler; you type the recipient’s name, and the text is formatted for delivery. Still the older protocol remains available and viable. You can always send a text message from the email program on your desktop or laptop. Address it in this manner. Let’s use the mobile phone number (718) 5554391. Use one of these styles and type the address into the “to” field of a new email message: Verizon: 7185554391@vtext.com AT&T: 7185554391@txt.att.net T-Mobile: 7185554391@tmomail.net Sprint: 7185554391@messaging.sprintpcs.com Your email will arrive as a text message on your recipient’s mobile device. (It will even include your automatic email signature.) You still must know the identity of the mobile provider, but this method is better than nothing. If it’s a family member’s, you probably know well that carrier’s name.

CAN YOU HEAR ME NOW? Most lawyers use mobile phones for business and personal calls and texts. Many of us historically signed two-year contracts with monthly payments that covered both service and the purchase price of a new phone. Though still available, the mobile phone industry has moved toward unbundling those charges. Perhaps the instigator of those changes was T-Mobile’s Uncarrier no contract initiative in 2015. Today you can purchase service for a set price per month. You can bring your own phone or purchase one from your provider or from any other source. The result has been increased price competition among the carriers. The most recent initiative at T-Mobile is indicative: three lines with unlimited high-speed data, text and calls for a flat monthly price of $100, including all taxes and fees. By the time you read this, industry prices may have declined further, but these developments suggest that we should all re-examine our present contracts and take advantage of these reduced and newly competitive rates. Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.

March/April 2017 SAN DIEGO LAWYER 13

BY EDWARD McINT YRE

ETHICS

Forewarned, Forearmed Getting a head start on possible changes to California's Rules of Professional Conduct

uncan stepped into Macbeth’s office — as usual without knocking. “What’re doing, Uncle?”

Macbeth looked up from the binder spread open on his desk. “I’m studying California’s proposed Rules of Professional Conduct. I’m doing a presentation this evening.” “Oh. But they’re just proposed, right? I mean, nothing’s final. Still working under the current ones aren’t we?” “True. The State Bar’s Trustees have taken the work of the Rules Revision Commission, comments from lawyers and others, and recommended more than 60 new or modified rules to the Supreme Court. But the Court hasn’t acted — yet.”

“So, nothing’s final. Court may do nothing.” “May, but unlikely — in my view.” “But why all the work now? You’ve been at this for days. That’s just this month. Over the last year —” “Because some changes are significant. They’ll affect how we practice for years to come. I’d rather know what I might expect than have to run to catch up. Some audiences seem to feel the same.” “Significant? Like how? I mean how much can they change? So we might be using the American Bar Association numbering system. Big deal.” Macbeth turned to a side tab in his binder. “Take, for example, the proposed conflicts of interest rule.” “OK.”

“Currently we can’t represent clients with actual or potential conflicting interests, without their informed consent.” “Easy.” “The proposed rule bars representation of a client if the representation will be directly adverse to another client.” “As I said, easy.” “It also bars such a representation when there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibility to some other client.” Duncan stopped grinning. “Or to a former client. Or a third person. Or because of the lawyer’s personal interest. That’s new for California lawyers. It may require each of us to do a fair amount of soul-searching before we undertake a new representation.” “Materially limited?” Macbeth nodded. “Can’t the clients agree?”

CARTOON BY GEORGE BREWSTER JR.

“Yes. With informed written consent. But the lawyer can represent them only if the lawyer believes she or he will be able to provide competent and diligent representation to each client. So their informed written consent, by itself, may not be enough.” “Jeez.” “Of course, none of us can represent two clients with adverse claims in the same lawsuit. Or in any other proceeding before a tribunal.” “That at least makes sense.” “When it comes to former clients, the proposed rule memorializes the ‘substantial

March/April 2017 SAN DIEGO LAWYER 15

E ETHICS relationship’ test courts have been using for disqualification consideration.”

Duncan was eying the thickness of Macbeth’s binder.

big or small like us — have effective ethics procedures in place.”

Sarah, who had joined them with her own binder, added a comment.

“A proposed rule that will affect just about every law firm is the one setting the responsibility of managerial and supervisory lawyers.”

“Are there a lot of changes like that?”

“If the matter is the same as, or substantially related to, the one in which the lawyer represented a former client, the lawyer can’t represent someone else with a materially adverse interest. Without informed written consent, of course.” Macbeth flipped through the pages in his binder.

“A good number. That’s why some of us are trying to get a head start.” “Like your group tonight.”

Duncan looked sheepish. “How so?”

“You’re welcome to join Sarah and me, Duncan. Never too late.”

“It requires us to take effective measures reasonably to assure that all lawyers in a firm comply with the Rules and State Bar Act.” “Wow.”

“Here’s something new. The proposed rule dealing with inadvertently disclosed, privileged documents. It requires the lawyer to stop reading as soon as she or he reasonably believes the document is privileged and was inadvertently produced. Then immediately notify the other side.”

“More importantly, if a manager or supervisor knows of another lawyer’s misconduct when its consequences can be avoided or mitigated. But if the manager fails to take reasonable remedial action, that lawyer can be held responsible for the other lawyer’s Rules violation.”

Sarah spoke again, “That’s the ethical standard the Court adopted in the Rico case.”

Duncan cringed. “But aren’t we all supervisors. At least in some respect?”

“Precisely. Another reason I think the Court will act on the proposed rules.”

Editor’s Note: SDCBA Legal Ethics Committee members have been, and continue to be, available to do presentations on the proposed new Rules. You can reach its chair, Eric Deitz, at edeitz@gordonrees.com. Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and co-editor of San Diego Lawyer. No portion of this article is intended to constitute

“Not an unfair assessment, Duncan. In short, we’ll all have some responsibility to make sure our public agencies and firms —

legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.

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BY EDWARD McINT YRE

ETHICS

Ethics Luminaries Meet in San Diego Esteemed professionals discuss innovative approaches to teaching legal ethics hat do you remember about your law school legal ethics course? Youngest faculty member, likely an adjunct; a copy of the ABA Model Rules — maybe California’s rules if you went to school here; a casebook that presented “scenarios” to slice and dice. Analysis that would have made Jesuit philosophers or Talmudic scholars envious: How close to the line can a lawyer get without getting chalk on those tasseled loafers or stylish pumps? Bottom line: How far can I go without getting in trouble? All divorced, however, from the practice we then entered and the questions we had to wrestle with.

Presenters included Professors Bruce Green (Fordham University, New York); Abbe Smith (Georgetown University, Washington, D.C.); Catherine O’Grady (Arizona School of Law); Tigran Eldred (New England School of Law, Boston); Richard Zitrin (UC Hastings, San Francisco); Liz Ryan Cole (Vermont School of Law); Thomas Barton, (California Western); and Tim Casey (California Western). A thick collection of scholarly papers sat at each place.

the law school curriculum — allows each student to develop for her or himself a professional character; in a genuine sense to create him or herself as a lawyer, and thus to contribute to the further creation of the legal profession itself.

“ethical ethos,” a cultural sense of ethical behavior that permeates their professional lives, one that enables them to address the tangible, practical issues they will confront, as we do, every day in practice. They will need to recognize — and address — the situational pressures and psychological factors (including unconscious cognitive biases) that, if ignored, can produce unintentional unethical behavior.

Presenters and participants alike agreed that law students best come to understand legal ethics when they have to confront ethical dilemmas that arise in the dayto-day work of practicing lawyers; that conclusions of the behavioral sciences, and the use of clinics, simulations and roleplaying, all contribute to that process of understanding. In many important respects, legal ethics at its best — especially when it can permeate the broader spectrum of

adheres to ethical principles; that access to our profession and the judicial system is genuinely available to everyone; that in our democracy the rule of law is something more than a quaint phrase, then our society, which finds its foundation in that rule of law, may stand in jeopardy. That urgency notwithstanding, the engaged commitment of those around the table gives much room for optimism.

Most of us — and so it was in our lawstudent selves — believe that when confronting a hypothetical, ethical dilemma, we would make the “right” choice. But none of us practices in a hypothetical Around the table — and fully engaged in world; nor will today’s law students. As a the lively colloquia after each presentation consequence, they need to see the actual — sat Professors Jamie Zanin (University of issues that practicing lawyers face; to North Carolina); Steve Berenson (Thomas experience the decisions that allow little Jefferson); Adam Stevenson (University of time for introspection or reflection; to On Saturday, February understand the unconscious 11, California Western biases that reinforce what Professor Tim Casey hosted we perceive as “rational” at the law school a group of and “correct” outcomes. distinguished legal scholars The discussion around the from across the country boardroom table underscored — with one guest from that daily newspapers, Argentina — as well as local television news, the internet practicing ethics experts. The and social media all offer conference — “New Challenges potent, real-time examples of in Legal Ethics” — addressed situations young lawyers will L-R: Bruce Green, Abbe Smith, Richard Zitrin, Catherine O’Grady, Liz Ryan Cole, Tim Casey, innovative, behavior-oriented face — far different from the Thomas Barton, Martín Böhmer, Tigran Eldred approaches to improving how “scenarios” dissected in the we teach legal ethics. casebooks many of us used. To Wisconsin); Silvia Menendez (University of teach legal ethics effectively means having The 21 participants, meeting around the Florida); Martin Böhmer (Argentine Ministry students analyze those situations in light of boardroom’s open, horseshoe-shaped of Justice); Linda Morton (California not only the Rules of Professional Conduct, table, shared the recognition that a merely Western); and Teresa Schmid (Los Angeles but also of their own behavioral norms. doctrinal, rules-based approach to legal Ethics Committee). San Diego ethics ethics frequently fails law students, fails The conferees, however, all agreed that the experts included David Carr, Alara Chilton the clients they will serve, fails the legal ultimate goal is broader — and perhaps and Ed McIntyre (SDCBA Ethics Committee); more urgent — than just better ethics profession itself and, ultimately, the society and Sue Basinger, Mary Pendleton and Bob to which each of us as lawyers must pedagogy. Unless clients — the public Knaier (adjunct professors in California contribute. Rather, those students will who we all profess to serve — believe that Western’s STEPPS program1). need to share — as one scholar put it — an our legal profession acknowledges and

“Skills Training for Ethical and Preventive Practice and Career Satisfaction,” of which Professor Casey is the director.

March/April 2017 SAN DIEGO LAWYER 17

BY CHRISTINE PANGAN OPEN DIALOGUE

All in the Family

Father and son law partners open up about their relationship and law practice Featuring Jorge O. Gonzales and Jorge F. Gonzales of Gonzales & Gonzales Law Office Above: Jorge O. Gonzales, Jorge F. Gonzales

ow does a father-son dynamic help or hinder a practice? The first in a series of articles bringing together different perspectives, “Open Dialogue” explores the challenges and benefits of partnering with family. San Diego Lawyer invited father and son attorneys Jorge O. Gonzales (Sr.) and Jorge F. Gonzales (Jr.) to talk to us about their experiences practicing law together. Jorge Gonzales, Sr. joked about being of “advanced age” having been in practice since 1979 while Jorge Gonzales, Jr. (admitted in 2010) told us of how he used to file and serve documents for his father prior to law school. Here is their discussion:

DECIDING TO PRACTICE TOGETHER Jorge Gonzales Sr. (Sr.): He’s the one who decided to join me. I never pushed him, suggested or otherwise. I just let him go out on his own boat and he ended up over here, and I was very glad, very proud to have him join me. And it’s working out great. Jorge Gonzales Jr. (Jr.): It was an easy decision for me. I started getting involved filing paper work, serving documents for my father. I got exposure to [law practice] before law school. I got to explore other areas of the law with volunteering or clerking. And ultimately, I understood that working for my dad was a pretty awesome and fortunate opportunity, and would allow me to run my own practice eventually (hopefully). Setting Aside Father/Son Roles at the Office Sr.: I don’t find it difficult at all to set aside my role as father at the office. In fact, I don’t think that I act as a father. I treat my son as a law firm partner, which he has been, since January 2012. I welcome his influence in handling the cases and I respect his opinions. Of course it’s important for us to run an efficient and successful practice, and I think that we do, otherwise we wouldn’t be here. Jr.: I’d say it works to my advantage if it ever does creep into the office — that father/son

role — because I have someone that I fully trust in and he’s been looking out for my best interest since day one. Or [jokingly] if I need help paying a bill, I can just say, “Hey, Dad!” Sr.: [laughs] Some things never change. I can’t think of any challenges arising from the family foundation itself. We manage to keep family matters separate from the practice of law; likewise, at home we seldom discuss work issues. Jr.: I agree — I can’t think of anything as challenging, other than bringing him to the present time in technology, which he’s done pretty well. He actually surprised me recently and purchased a cellphone. I had kind of given up on that a long time ago. I kind of feel like it has provided a little bit of new energy to the business, in a sense. My father enjoys working with me, I enjoy working with him. And it helps to go to work, work long hours and put in extra effort when you have a team like that. Sr.: It definitely has re-energized me. HANDLING THE GENERATIONAL GAP Sr.: I’ve been in practice since 1979 — there’s been a lot of technological changes in the practice of law since then. He’s been instrumental in dragging me, kicking and screaming, into the modern era. He guides me into modernizing our law practice. Jr.: I’ll give you a prime example: He doesn’t

really know how to use the scanner, or electronic signature and send [a PDF] back to me. So that’s my next project. Sr.: But I’m a fast learner, even in my old age. Jr.: [Another difference is] our work styles, and just the amount of time we put in. We have our own work schedules. I’m not in the office as often. Sr.: I think it complements our work. He’s got the energy, which I don’t have any more, to run around and go from court to court, deal with traffic and all that. He does what he does, I do what I do. We work on the same cases, and it works. FINAL THOUGHTS Sr.: It works for us, I don’t know that it would work for others. We’ve been close ever since he was born. And I’m happy. I’m very happy. Jr.: That’s a good point. We definitely have a very good father/son relationship — from the very beginning — and I think that’s crucial. I have complete trust that he’s looking out for me, and I think that goes the other way as well. So it’s a big advantage to have that, and that’s something that I’ve come to realize as I progress further into my legal career. Christine Pangan (cipangan@yahoo.com) is a staff attorney with the Legal Aid Society of San Diego and is co-editor of San Diego Lawyer. Jorge Octavio Gonzales (jog@gg-lawoffice.com) and Jorge Felipe Gonzales (jfg@gg-lawoffice.com) are partners with Gonzales & Gonzales Law Office. March/April 2017 SAN DIEGO LAWYER 19

ou finished direct examination of your plaintiff’s expert witness. Your expert performed perfectly. He offered his impeccable qualifications and seemingly impenetrable justification for his opinion. It’s your turn for cross-examination. You are prepared. The exchange goes like this:

Attorney: Mr. Expert, you did not tell us the professional organizations in your discipline of which you are a member. Please tell the court the names of the organizations of which you are a member. Expert: I am not a member of any professional organizations in my discipline. Attorney: Please explain why you are not a member of any organizations. Expert: I find no value in membership. Attorney: Isn’t it true you were a member of XYZ Association? Expert: Yes. Attorney: Isn’t it true you were expelled from XYZ Association for ethical violations and fabricating evidence? Expert: Yes.

his exchange really happened. It got worse for the expert as the questioning continued. The compromising information was readily available to the retaining attorney. As an attorney, you will probably retain a forensic subject matter expert for a prospective litigation or investigation. How will you know whether this person was qualified to perform the work? Could he or she withstand the scrutiny of crossexamination? How will you vet the person to determine whether he or she is qualified as a partner for your legal case? The 2009 National Academy of Sciences (NAS) report1 offered recommendations for improvement of the forensic sciences. Specifically, the recommendations were made due to a lack of a scientific approach

20 SAN DIEGO LAWYER March/April 2017

used by practitioners in many forensic disciplines. In 2016, the National Institute of Justice (NIJ) published a directive stating the phrase, “to a reasonable scientific certainty” may not be used in forensic reports without quantitative data to substantiate the claim.2 The NAS report stated there is too much subjectivity in many forensic reports. Relying on an unqualified forensic expert can kill your chances of prevailing in your case. You may even be led to pursue a case that cannot be successfully sustained. It’s imperative that you always have a qualified person on your side who will not be destroyed in deposition or on the witness stand in the trial. Not all forensic experts are created equal. This article takes you through some steps for vetting your forensic expert.

https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf

Evidence code requirements Federal Rules of Evidence §702 in California evidence code §802 define rules that are required for a forensic expert to testify as to his or her opinion. They require the expert to possess specialized skill, knowledge, education, experience or training such that he or she has special abilities that can assist the trier of fact. When conducting your interview, find out how many of the five abilities the person has. You also need to assess whether he or she can stand up to examination in deposition or cross-examination during trial. A key requirement not in evidence code The expert you retain may possess special skills, education and knowledge of the subject matter of the case. However, he or

https://www.justice.gov/ncfs/file/788566/download

she needs to be able to go several steps further to contribute to your success. He or she needs to be capable of conveying an opinion in lay language. Your expert must be skilled at writing a report that is sufficiently detailed to be bulletproof, yet is understandable by a person who is not an expert in their discipline. Ask your prospective expert for a sample report from the prior case that went to trial. You must know whether he or she is capable of verbally explaining his or her opinion in language that is understandable by a judge and/or jury. Have the expert explain how he or she reached the opinion stated in the sample report. Does he or she use stories to convey the concepts of the report? Social media is your friend To check your expert’s validity, social media is your friend. The internet is a valuable tool to help you easily vet your forensic expert. Use Google, Bing or other search engines. Using multiple search engines will reveal different information. Explore the expert’s profiles and posts on LinkedIn,Twitter, Facebook, Pinterest and other social media sites. If the person is a member of a professional trade organization, your search will reveal this. If he or she speaks at conferences or publishes papers in journals or writes books, you will also find this information. Read his or her posts. The person's chosen words, pictures and links to other sites will prove valuable in helping you to understand him or her. You might also find information that your opposing counsel could use in an attempt to impeach your witness. To conduct your due diligence on the internet, type the expert’s name, in different ways, into several search engines. For example, type in Mike Wakshull and Michael Wakshull. Find out what comes up. Where did the expert go to school? Where did he or she get training? Does he or she have a CV online? You will find a lot of information about the person. This information is publicly available. As an attorney or a paralegal, you have access to LexisNexis. Use it to find other cases the person has worked on.

Visit the websites of the organizations of which he or she claims to be a member. Many organizations post the membership list online. Also, type the name of the person’s company into the search engine. Visit the company's website and spend some time exploring different aspects. The person's words, videos and links can speak volumes. In some instances, I have learned valuable information about an opposing examiner from my retaining attorney. In one case, the attorney had done extensive research on LexisNexis about an opposing examiner. The examiner had opined that the signature on a warrant was a forgery, even though the judge who had signed the warrant said: “I remember signing that. And that’s my signature.” The other examiner stood behind his statement that the signature was a forgery. Use whatever online tools are at your disposal to detect useful information before you hire, and then again to investigate, the opposing expert. An example from a deposition In one of my cases, I had discovered detrimental information about the opposing examiner that was readily available on the internet. In the deposition, my client attorney was able to show examples of other cases where this examiner had incorrectly presented evidence to support the side that retained him. If the opposing attorney had typed his examiner’s name into a search engine, he would have discovered that his expert had been expelled from a leading forensics organization. When the case went to trial, it was easy for me to demonstrate that the opposing examiner had skewed the evidence to make it appear to support the side that hired him. He rotated the signature so a stroke appeared to move in a different direction.

does offer a diplomate certificate in other disciplines and a general forensics diplomate certificate. Not only do you want to discover where the examiner got his or her education and training, but also find out if the organization offers a credential in that area of expertise. Does the expert have the equipment necessary to perform the work? Review his or her CV to learn how he or she maintains current knowledge in the discipline. Does he or she speak before peers or publish in journals?

Your expert must be skilled at writing a report that is sufficiently detailed to be bulletproof, yet is understandable by a person who is not an expert in their discipline. Know the organizations A variety of organizations offer valid certifications in different forensics programs. Regarding forensic document examination, for example, the Board of Forensic Document Examination (BFDE) offers a valid certification that is well-recognized in the industry.

Are the examiner’s credentials valid for the case?

There is also the ABFDE, which is the American Board of Forensic Document Examiners. The difference is the membership. BFDE consists mostly of private examiners. ABFDE’s members are mostly current and prior government examiners. Both associations are valid.

There’s a forensic document examiner in Southern California who includes diplomate on his CV and website. The problem is, the organization where he got his diplomate certificate offers neither training nor credentials for forensic document examiners. The organization

The National Association of Document Examiners and the Scientific Association of Forensic Examiners also offer valid certifications. East Tennessee State University offers a graduate school certificate in forensic document examination. March/April 2017 SAN DIEGO LAWYER 21

What is the motive of the examiner’s trade organization?

SDCBA Sustaining Members

Learn whether your prospective forensic examiner is a member of a respected trade organization. Ask them whether the organization is a registered 501c(6) not-for-profit organization.

The San Diego County Bar Association gratefully acknowledges its Sustaining Members for their outstanding commitment and generous support in 2017.

Organizations such as these require their members to subscribe to a code of ethics. A typical code of ethics requires members to remain neutral as to the parties to the case. They are advocates for the evidence. NIJ published a National Code of Ethics for the Forensic Sciences.3

PATRON MEMBERS Marc D. Adelman Jose S. Castillo Steven Coopersmith Ezekiel E. Cortez William O. Dougherty James P. Frantz Van E. Haynie Rhonda J. Holmes

Richard A. Huver Laura H. Miller Misty Moore Gerald S. Mulder Todd F. Stevens Thomas J. Warwick Jr. Andrew H. Wilensky

BENEFACTOR MEMBERS Doc Anthony Anderson III Jedd E. Bogage Steven T. Coopersmith Alexander Isaac Dychter

Douglas A. Glass Alvin M. Gomez J. William Hinchy Jr. Philip P. Lindsley

FRIEND MEMBERS Laura Ashborn Steven Barnes Robert Baumer Edward V. Brennan Scott Carr Linda Cianciolo David B. Dugan Susan K. Fox Kenneth N. Greenfield Ronald Leigh Greenwald Allen Gruber Ajay K. Gupta Daniel A. Kaplan

Mark Kaufman Marguerite C. Lorenz Robert E. McGinnis Joseph Jay McGuire Raymond J. Navarro Justin Nielsen Anthony J. Passante Jr. Anne Perry Kristi E. Pfister Michael Roberts Ralph T. Santoro Jr. Stella Shvil Janis Stocks

Because no profit motive is involved in a nonprofit organization, and the officers and members of the organization are forbidden from gaining financially, you are assured that the member's purpose in the organization is for education, networking and maintaining currency in the field. On the other hand, there are for-profit businesses that pretend to be certifying organizations. They teach the subject of forensic document examination, and when the student completes the course, they receive a certification in forensic document examination as a completion certificate. Many of these “certified” examiners have little or no experience. Your due diligence will prove to be valuable As a legal professional, it is imperative that you learn the details about the background and skills of subject matter experts with whom you will partner on your case. This is especially true for cases where you will retain people who are not required to hold licenses or to have specific education for their disciplines. Always assume that the parties on the other side of your case will perform their due diligence. There are tools available to make your investigation into the person relatively easy. When you perform an extensive investigation, not only will you greatly reduce the chances of being surprised by the other side, but you will have a qualified expert on your side. Retaining an expert with strong credentials and credibility will greatly strengthen the position of your case. Mike Wakshull, MSc, CQE (mikew@quality9.com) is founder of Q9 Consulting, Inc.

22 SAN DIEGO LAWYER March/April 2017

https://www.justice.gov/ncfs/file/788576/download

March/April 2017 SAN DIEGO LAWYER 23

Being an Expert on Experts tips for effectively using experts By Olga May

xpert evidence can be front and center in any case, but it becomes crucial in science- and technology-intensive cases. The complexity associated with finding, preparing and correctly using the right experts can be high.

of technology may not be allowed to access a party’s confidential information related to that technology field.

The most common use of experts is to offer a testifying expert’s opinion on the merits of a claim or defense. But a party may also use a consulting expert behind the scenes to help understand the facts and evaluate strengths and weaknesses of a case; assess the damages; prepare discovery; conduct electronic, particularly, forensic, discovery; prepare for depositions; challenge the opposing expert; and plan the trial.

Expert evidence differs from fact evidence in a key aspect: expert evidence is an opinion that does not have to be based on the expert’s personal knowledge. Experts rely on their training, experience and methodology. Therefore, the admissibility of this opinion is regulated through a special set of rules designed to ensure its reliability. In federal court, the admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Down Pharmaceuticals, 509 U.S. 579 (1993).

To make the most use of the expert’s help, the first conversation with the plaintiff’s expert often takes place before the case is filed, and with the defendant’s expert early in discovery.

Choosing an Expert The starting point is to identify the relevant area of expertise and necessary qualifications. Relatively minor gaps in qualifications, however, will generally not result in exclusion, and may be found to go to the weight of the evidence and be addressed through opposing expert’s testimony or cross-examination. It is also important to check potential conflicts that may result in exclusion or prevent the expert from accessing the other side’s confidential information under the protective order. For example, an expert who actively researches and publishes in a certain area 24 SAN DIEGO LAWYER March/April 2017

Challenges to Expert Testimony

Overall, the admissibility standard is relatively lenient. In addition to the gatekeeping role of the court under Rule 702 and Daubert, the flaws in the expert evidence are regulated through the adversarial process itself: cross-examination, burden of proof and opposing expert — as well as court oversight. The most successful challenges under Rule 702 are based on the expert’s methodology, but the other grounds — lack of qualifications, helpfulness to the trier of fact and sufficient factual support — should not be overlooked.

Helpfulness of the Expert’s Opinion The specialized knowledge is admissible as long as it helps the jury understand the facts. Some knowledge of the subject matter by

the jury is often expected and will not by itself preclude the expert opinion if it helps the jury further understand the issues.

Often, however, the factual basis of an expert opinion is viewed as going to the weight of the testimony, and not its admissibility.

Certain types of subject matter are generally outside experts’ purview. Most notably, expert testimony cannot be used for statutory interpretation or legal conclusions.

Reliability of the Expert’s Methodology

Expert testimony is not a substitute for jury instructions, and legal conclusions by an expert would supplant, instead of aid, the trier of fact. The expert, however, may opine on issues that embrace the ultimate conclusion. For example, although overall interpretation of a contract is a legal issue, expert testimony may be admissible regarding the meaning of a specialized term in the contract. In addition, experts cannot testify regarding credibility of a witness, although they may offer specialized knowledge that may bear on the jury’s conclusion regarding credibility.

The reliability of the expert’s methodology and its application to the facts is the primary concern with expert testimony. This is the area where the expert needs to be the most careful and the opposing counsel will likely be the most watchful.

Check potential conflicts that may result in exclusion or prevent the expert from accessing the other side's confidential information under protective order.

Support for the Opinion

The expert needs to articulate the methodology and explain its application. The methodology needs to comply with any legal requirements. Novel methodologies, although not automatically discredited, should be used with care, because they are more open to attack. As with any expert testimony, relatively minor issues with the methodology, such as treatments of particular sets of data, may be left to the adversarial process.

Experts are allowed to make assumptions and to extrapolate. But the evidence cannot be so scarce as to present a jump to conclusions. It also helps to have the expert conduct an independent test or investigation and not limit his support to sources that may appear biased.

Olga May (omay@fr.com) is a principal with Fish & Richardson P.C.

To get your case on the path to resolution, please contact Richard’s case manager Kathy Purcell at (619) 238-7282 or email kpurcell@westcoastresolution.com.

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Facing Off Against a Good Expert Challenge the opinion — don’t attack the expert! By James Crosby

smart, well-prepared, experienced opposing expert can be a challenge for even the most-seasoned trial attorney. The expert will go toe-to-toe with the cross-examining attorney and will not be rattled by a tough cross as may a percipient witness or a party. And an experienced, prepared expert will not fall for well-worn cross-examination tricks that some lesser experts might bite on. If asked, “How much are you being paid for opinions here today?,” a smart, well-prepared expert will not answer, “Oh, about $40,000” to the disgust of the jury. She will answer: “I am paid by the hour for my time spent on this project and not for my opinions. My opinions are my opinions, based on the facts and my expertise, regardless of what I am paid for my time,” to the nodding admiration of a jury. Most significantly, the smart, well-prepared, experienced expert will know his or her area of expertise far better than any cross-examining attorney, no matter how much the attorney studies and prepares. Challenging a prepared

expert economist on underlying economic theory or market analysis, or a computer expert on the specific of coding or chip design, can quickly become a dangerous exercise in front of a jury — nothing worse than getting shredded by the expert you are supposed to be shredding! Given the inherent dangers of attacking the knowledge and expertise of an experienced, well-prepared expert, it is often a better approach to challenge the facts and assumptions underlying the offered opinions, or lack thereof. The opinions of any expert are only as good as the facts and assumptions upon which the opinion is based. The expert’s analysis and opinions may very well be correct and supportable based on the information and assumptions provided the expert. But if that information and those assumptions are incomplete, incorrect or shaded, the opinion may likewise be incomplete, incorrect or shaded, through no fault of the expert. So, in any case where opposing

expert testimony is to be presented and subjected to cross-examination, trial counsel should consider challenging the facts supporting the opinion, as opposed to attacking the expert. One source of effective challenge to an expert’s opinion may be an incomplete set of facts provided the expert by counsel. Experts are largely dependent on counsel and, at times, the client, to secure casespecific information upon which to work-up their opinions. Often counsel will limit the information provided to an expert. This may be done to control expert costs, because of lack of understanding of the case, by mistake or lack of time, or even, misguidedly, to shade the result or secure the opinion needed to support the case. Discovery or information provided by the client or expert may help trial counsel identify relevant facts that were not provided to the expert. In that case, the missing information can be an effective topic for cross-examination at trial. For

March/April 2017 SAN DIEGO LAWYER 27

this reason, trial counsel, in the opposing expertâ&#x20AC;&#x2122;s deposition, must require the expert to produce his complete file and must secure a clear and complete record of what facts and documents the expert reviewed and relied upon the offered opinion. Often, counsel will give an expert a set of presumed facts upon which to work up and base an opinion. If that presumed set of facts is incomplete, faulty or not accurately reflective of the facts of the case, the opinion based on those presumed facts may likewise be incomplete, faulty or not accurately reflective of the facts â&#x20AC;&#x201D; a source for effective topic cross-examination at trial. Again, the expert deposition is critical. If the expert based his opinion on a presumed set of facts, the expert must be required to identify such presumed facts and explain why they were relevant to the opinions provided. Then post-deposition and pre-trial, counsel, along with her expert and client, can examine such presumptions and determine whether they are suspect or incomplete and, in turn, a potential effective source of cross-examination. The ancillary benefit of challenging the factual underpinnings and presumptions upon which an opinion is based in these

or other manners, as opposed to directly attacking the credibility or expertise of the expert, is the possibility of turning the opposing expert witness into an ally at trial. Most experts will agree that his or her opinion is only as good as the information and presumptions upon which it is based.

and generally much more nuanced than the basic tenets addressed above. Particular cases can and do provide opportunities to effectively attack the credibility, expertise and even bias of an expert, even a smart, experienced, well-prepared one. However, there will be times when the opposing

If information and assumptions are incomplete, incorrect or shaded, the opinion may likewise be incomplete, incorrect or shaded, through no fault of the expert. If, on cross-examination, counsel can establish that material facts and presumptions provided by counsel and upon which the opinion is based are incomplete or incorrect, that expert may pull back from defending his own opinion. At a minimum, counsel will be able to argue at closing that the opinion is based on incorrect facts. Granted, challenging opinions and attacking experts is largely case-specific

expert has done a fine job and reached a spot-on, fully supportable opinion, but based on incomplete facts and faulty presumptions provided by counsel. In those cases, it is always better to challenge the opinion and not attack the expert. James Crosby (crosby@crosbyattorney.com) is a solo practitioner.

LOOKING TO GET HIRED MORE OFTEN?

Due to recent events, we’ve had increased requests for immigration attorneys and attorneys who are bilingual. We’re also seeking attorneys for our two new panels, Debtor Representation and Enforcement of Judgements. HEIGHTEN THE VISIBILITY OF YOU AND YOUR PRACTICE. Join the Lawyer Referral and Information Service to get referrals and potential clients. Contact Michelle Chavez at 619.321.4150 or mchavez@sdcba.org. Learn more at www.sdcba.org/joinlawyerreferral

SAN DIEGO COUNTY BAR ASSOCIATION

CALCULATION ENGAGEMENT V. VALUATION ENGAGEMENT IN MARITAL DISSOLUTION: INSIGHT FROM A VALUATION ANALYST By Justin Nielsen

etermining which level of service is most appropriate to help estimate the value of a closely held business ownership interest in a marital dissolution context can be problematic. It is important that you, as a lawyer, in conjunction with the valuation analyst (i.e., expert witness), discuss the circumstances surrounding each potential engagement, including the ultimate goal, result and audience. When a lawyer retains a valuation analyst to provide services in a marital dissolution context, typically the valuation analyst is retained through what is termed an â&#x20AC;&#x153;engagement to estimate value.â&#x20AC;? Once it is determined that the valuation analyst will be formally retained by the lawyer through an engagement to estimate value, the type of engagement must then be determined, as required by the American Institute of Certified Public Accountants Statement on Standards for Valuation Services No. 1, Valuation of a Business, Business Ownership Interest, Security, or Intangible Asset (SSVS). The two types of engagements to estimate value, as proffered by SSVS, are (1) a calculation engagement and (2) a valuation engagement. As a valuation analyst collaborating with a lawyer within a marital dissolution context, the following scenarios help me (and ultimately the lawyer) in determining what type of engagement is most appropriate for each matter: In the first scenario, assume that the purpose of the valuation is to assist with preliminary management planning associated with the potential sale of a closely held business ownership interest. In this circumstance, a calculation engagement is likely appropriate and acceptable as the goal is to estimate the value of the closely held business

30 SAN DIEGO LAWYER March/April 2017

ownership interest in order to obtain an idea of what a hypothetical willing buyer might pay for said interest. Therefore, the result of the calculation engagement may be used as an initial negotiating tool in the up-front discussions with the hypothetical willing buyer. While updating the calculation engagement to a valuation engagement (once an agreement to sell has been finalized) may be appropriate, a calculation engagement can be a suitable

and cost effective option to a valuation engagement when the purpose is for general management planning purposes. In the second example, the individual with the same closely held business ownership interest is involved in a marital dissolution. Further, it is assumed that the marital dissolution will require a division of the relevant marital assets. One of the more significant assets in the marital community is the closely held business ownership interest and, therefore, a value needs to be estimated in order to equitably divide the closely held business ownership interest amongst the parties. If the marital dissolution is in its infancy stages, then a calculation engagement may be appropriate in order to assist with

mediation or settlement. However, it is important for the lawyer to consider that in proceedings that may end up in a court of law (such as in a marital dissolution), the selected engagement should ultimately adhere to the standards of a valuation engagement, thereby allowing the valuation analyst to opine on an estimated conclusion of value as it relates to the closely held business ownership interest. In fact, SSVS explicitly states that in a calculation engagement, the valuation analyst should disclose (1) that the calculation engagement does not include all the procedures required of a valuation engagement and (2) that if a valuation engagement had been performed, the resulting indications of value may have been different. Due to this difference, among others, many valuation analysts will not testify in a court of law without having completed a valuation engagement that results in a conclusion of value. This conclusion of value represents the valuation analystâ&#x20AC;&#x2122;s professional opinion or conclusion, which can typically be more impactful in a marital dissolution context as compared to a calculation of value. Lawyers should be aware, however, that this is not to say that each marital dissolution engagement should be a valuation engagement. A calculation engagement may be appropriate for certain mediation or non-mediation settlement purposes. Rather, this is a decision that you, as the lawyer, should reach in partnership with your valuation analyst; taking into consideration the ultimate goal, result and audience for each engagement. Justin Nielsen (jmnielsen@willamette.com) is vice president of Willamette Management Associates.

5 Tips to Deposing an Expert Witness Tip #1: Get all the Opinions One good thing about deposing an expert is that you can do it, in theory, with virtually no preparation. All you need to ask is, “What are your opinions? What are the bases of your opinions?” Just keep repeating those questions and you are taking a basic, starter expert deposition. Repeat like a robot until the expert has expressed all of her opinions and their bases.

Tip #2: Close ‘Em Out At the end of the deposition, make sure you close out the expert by asking something like: “Have you now provided me all of your opinions and the bases for them that you intend to express at the time of trial?” The reason to do so is that once they say “yes,” they cannot provide new opinions at the time of trial. Kennemur v. State of California (1982) 133 Cal. App. 3d 911.

Tip #3: Be Like David Goliath was big and strong. But he couldn’t see well. David was young and small. But he was good with a sling. Goliath wanted to fight David hand-to-hand. David attacked

instead from distance. He didn’t want to fight Goliath where he was strongest. In our cases, often the expert knows more than us about the subject matter. Most times, you won’t beat the expert in her chosen field. So, you may have to fight elsewhere at the time of trial. Is the expert biased? Did the attorneys only provide her certain facts or documents? Has another court ruled her testimony is unreliable or does she have something in her background that affects her credibility? Whatever it is, figure out where you want to fight at trial and develop the foundational testimony during the deposition.

Tip #4: Be Simple and Relevant Whatever the field is, and whatever the technical language may be, distill it to simple concepts and language. Aside from getting all the opinions, you want to use plain language to clarify exactly how the expert’s opinions apply to your case. And you have to do so in language that makes sense to a jury (think sixth grade level). Here’s an example. Today I deposed a “warnings” expert in a

By John Gomez rat bite fever case. He wanted to talk about standards and literature. But I asked him something like, “Don’t you think a parent would want to know that buying a pet rat could end up with their kid dying?” Don’t be scared to use plain language and apply it to your case.

Tip #5: Be Civil Lots of lawyers get worked up and mad when they depose the other side’s expert. Their questioning may be aggressive and hostile. I don’t think that works. The deposition is a time to get information, not beat somebody up. Being courteous and civil is much more likely to lead to an expert being forthcoming and complete. Besides, we practice law in San Diego. That means we do so with civility, integrity and professionalism — even when we think the other side’s expert may be dishonest or is killing our case. John Gomez (john@gomeztrialattorneys.com) is founder and president of Gomez Trial Attorneys.

DOUG BARKER , an accomplished mediator, draws upon his years of experience as both a litigator and mediator in the following areas: • Commercial disputes

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West Coast Resolution Group, a division of the National Conflict Resolution Center, has one purpose: to provide exceptional and affordable mediation services to the legal community. Our Resolve. Your Resolution. To schedule a case with Doug call Case Manager, Kathy Purcell at 619-238-7282 or visit us online at westcoastresolution.com

Effective Communication with Clients

By RenÉe Galente

Clients want to be heard; use these techniques to ensure you truly listen.

awyers express themselves on behalf of others for a living, whether the work is done in a courtroom or from behind a desk. As a result, some practitioners would likely be amused or offended at the notion that they might not be effectively communicating with their own clients. Yet, the No. 1 reason for client complaints to the State Bar of California revolves around lack of communication with their lawyer. The truth of the matter is that lawyers get busy. And when lawyers get busy, there is often a rush to get things done, move on to the next project, check boxes, get things filed and go, go, go! Communication — real communication — suffers as a result. As George Bernard Shaw once said, “The single biggest problem in communication is the illusion that it has taken place.” Be honest with yourself and think about the way you practice and communicate. If you’re open to it, there are two methods that can help you see immediate positive changes in the quality of communication with your clients: active listening and compassionate responsiveness.

32 SAN DIEGO LAWYER March/April 2017

Active Listening There’s a video circulating on YouTube in which you see a woman and a man from behind sitting together on a couch, and you hear her complaining about this constant ache in her head and how frustrated she is with it. She turns to the man, showing her profile, which features a large nail stuck in her forehead. The man, clearly frustrated himself by her complaining, says, “It’s because you have a nail in your forehead.” Instead of fixing the problem, this just sets off the woman about how it’s not about the nail in the forehead. She doesn’t want him to fix anything; she just wants him to listen to her. So, when she finishes her second rant and his response is, “That must be very frustrating,” she feels validated and heard.

they did or failed to do. In that “analysis mode,” all the lawyer is doing is focusing on how she or he will fix the problem, spin bad facts or meet elements of a cause of action, and ends up missing a great deal of the information being shared. Active listening is a skill that has been raised with growing frequency in the legal field, from Gerry Spence’s Trial Lawyers College to Brene Brown to the SDCBA’s own Dialogue on Diversity in 2016. The idea is to turn off the “fix-it” mode and listen to the client.

five tips on how to listen better 1. Sit with your client, instead of across from them with a desk or table between you.

2. Pay attention to, and even copy, your

As counselors, we fix things. That’s what we get paid to do. But it’s not all that we should be doing to ensure that we are engaging in effective communication with clients.

client's body language as he or she speaks to get a better understanding of how he or she is feeling.

Clients want to be heard. Contrary to most common intakes or client interactions, being heard is different from being questioned, interviewed or judged for what

there is no judgment, just a real attempt to understand.

3. Listen to the words from a place where

4. Remember it’s not about you, or how you would have handled a similar situation.

It’s about the client. Be there to be of real service.

5. Help your client be heard. Sometimes while listening, you’ll get to the point where the client is “stuck” or at a loss for words. You can focus in on what you’re feeling from listening to the person and give him or her a little prompt, like the one in the YouTube video where the man said, “That must be very frustrating.” If it’s true, the client will agree and it will help fuel him or her. If not, they’ll likely correct you (which doesn’t mean you did a bad job, it just means you helped the client understand what was not correct and help guide him or her to what was correct).

Compassionate Responsiveness The amount of phone calls and emails lawyers receive can be overwhelming sometimes. When there’s nothing going on in a case, talking to that particular client might drop a few levels in the priority perspective. You know nothing is going to happen for the next 30 days. But does your client understand what that means?

You may have told the client, but with his or her stress or pain level, how much of the conversation did he or she take away? Make sure to give your clients regular updates on what is happening or even why nothing is happening in their case. If you don’t have time to do it proactively, then make sure you respond within a business day when a client contacts you. There’s no worse feeling than rejection, and silence can often be misconstrued for it.

Contrary to most common intakes or client interactions, being heard is different from being questioned, interviewed or judged for what they did or failed to do.

A good rule of thumb is to respond to each client in the way you’d want someone to respond to your loved one going through the same process. When it’s too much and you don’t have time to sit down and type out a meaningful response, take 30 seconds to type or tell them that you’re swamped today but wanted to let him or her know you got the call/email and will get back with a meaningful response by X day. Unless it's an emergency, most clients will be satisfied with that because they want you to be able to take the time to compose a meaningful response. The better you can communicate with your client, the stronger your understanding will be of how you can best represent him or her and the fewer miscommunications or hard feelings will exist during the process. You’ll be a better lawyer for it, and your clients will feel secure in the placement of their trust in you. Renée Galente (renee@galentelaw.com) is a director for the San Diego County Bar Association and owner of Galente Law, APC.

March/April 2017 SAN DIEGO LAWYER 33

L AW Y E RS H E L P I N G OT H E RS

M ATT H E W L I E D L E FIGHTING CANCER, PIECE BY PIECE

Matthew Liedle is a long-time board member for Hope For A Cure Foundation, a nonprofit that raises money to purchase and donate cancer research equipment. His countless hours of work have been instrumental in keeping HFAC moving forward in the fight against cancer. Since 2004, HFAC has donated 17 pieces of equipment to cutting edge researchers at local cancer centers, including UCSD Moores Cancer Center, Salk Institute, Scripps Research Institute, and Sanford Burnham Prebys Institute. Most recently, HFAC donated a sonic dismembrator to UCSD Moores Cancer Center. The device helps researchers discover genes that can be tested for mutations, in order to select treatment options for certain cancer patients. Visit www.hopeforacurefoundation.org to donate or volunteer. You can also support HFAC by playing in the Society of Marketing Professional Services annual golf tournament on June 2, 2017. Proceeds will benefit HFAC. Sign-up at www.smpssd.org. An AV Rated partner with Liedle Larson Lidl & Vail, LLP, Mattâ&#x20AC;&#x2122;s practice includes construction, surety, general liability, product liability, professional malpractice, business disputes, and government matters Matthew Liedle is not affiliated with the Law Office of Steven C. Vosseller.

After each case, we donate a portion of attorneyâ&#x20AC;&#x2122;s fees to a nonprofit chosen by the client.

P L A I N T I F F P E R S O N A L I N J U RY

858-429-4062 www.vosslawyer.com

L AW O F F I C E O F

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Wellness

Up and At 'Em Five expert tips to getting your workout in before 7 a.m. By Maria Disla

s pressing the snooze button on that early morning alarm part of your daily routine? Perhaps you just don’t consider yourself a morning person or you make up excuses that you don’t have enough time to sweat before heading into the office. According to studies conducted by Appalachian State University1, there are numerous benefits of getting to the gym earlier in the morning. From sleeping longer at night and higher levels of relaxation to lowering blood pressure, research shows that the best time to exercise is first thing in the morning. You may not be a natural-born morning person, but with a few simple tips it can be a smooth transition to make your early morning sweat a brand new habit. Think you might want to try working out before sunrise? Here are five tips to help you get in your workout and start your day on the right foot.

1. Eat an early dinner Try to avoid eating within three hours of your anticipated bedtime. This will allow your body more time to digest food and avoid heart burn. 1

2. Limit screen time Avoid watching TV, using your phone or playing on any other digital devices at least one hour before bedtime. Screen time at night keeps you from falling asleep and sleeping well. Your brain’s electrical activity increases, which keeps you from calming down into a peaceful state of mind for quality sleep.

in your morning workout. The feeling you get when you pushed past a hill or were able to get in one more rep. And just remember: No one ever finishes a workout and thinks, “I wish I’d hit snooze and skipped that workout!” Maria Disla is founder and CEO of Pure Indoor Cycling.

3. Set out tomorrow’s workout clothes Choosing your outfit the night before will help reduce stress and save you time in your morning routine. Waking up and seeing your workout outfit laid out will be a great motivator to get you up and on that bike.

4. Stretch Instead of hitting the snooze button, take the extra 10 minutes to stretch. It’s a great way to energize your day and ease away any stress or tension from the previous day or a funky sleeping position.

Our Work & Wellness Visit the SDCBA's new web page dedicated to wellness for lawyers, including discounts at Pure!

www.sdcba.org/wellness

5. Remember the why The key to finding motivation and keeping it is to think about all that you accomplish

http://www.news.appstate.edu/2011/06/13/early-morning-exercise/

March/April 2017 SAN DIEGO LAWYER 37

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Border Law Is the “Big Topic” of 2017 at the San Diego Law Library

ach year the San Diego Law Library selects an area of law to highlight; something that is current and relevant to the citizens of San Diego County. This year we are focusing on border law. Our shared border with Mexico means San Diego faces unique legal and social issues. We invite you to join us throughout the year as we highlight resources in our collection, community resources and projects, breaking news and changes in the law, and invite experts in the legal community to discuss this topic. We narrowed our focus to four major areas of border law to spotlight quarterly: Immigration (January-March): The United States welcomes thousands of foreign workers in multiple occupations or employment categories every year. The different types of visas available, “the wall” and issues related to crossing the border are just a few of the areas we will highlight. Business/Trade (April-June): Mexico is the third-largest trading partner of the United States. In 2015, there was over $530 billion in trade between the two countries. NAFTA has increased the interconnectedness of the economies of Canada, the United States and Mexico, and millions of U.S. jobs are directly related to industries in Mexico. Businesses have to be up to date on international trade

laws and treaties. Join us as we highlight resources to keep you abreast of changes relating to trade, treaties, NAFTA, investing and international tax. Human Trafficking (July-September): Human trafficking is a modern form of slavery. It involves controlling a person through force, fraud or coercion to exploit the victim for forced labor, sexual exploitation or both. We will bring to light the “hidden” reality of how the border acts as a crossing for human traffickers and their victims into the U.S. through San Diego. We also will share resources on how to recognize the signs of human trafficking and talk about where to report it and how to get help. Environmental (October-December): The Tijuana River has long been a source of discussion between San Diego and Tijuana. Sediment, polluted storm water, trash, and manufacturing and agricultural waste have been problematic in the region for decades. Numerous laws and governmental agencies are involved, making cleanup and regulation problematic. Learn about these issues and what is being done to help the environment and keep communities safe. Please join us throughout the year ahead as we learn about changes in the laws that affect the border, and discuss what they mean to our community.

A new partnership. Same focus.

701 Island Ave., Ste. 400 San Diego, CA 92101 619.780.0880

The 40-year tradition of award-winning representation by some of San Diego’s most experienced trial attorneys continues. Former Kirby Noonan Lance & Hoge partners – David Noonan, James Lance, Ethan Boyer and Micaela Banach – have joined forces as NoonanLance. Working with clients throughout San Diego County and beyond, they will continue to serve their clients with efficiency and a focused eye on results. To learn more, visit noonanlance.com. March/April 2017 SAN DIEGO LAWYER 39

10 Reasons to ‘Give an Hour’ San Diego County Bar Foundation Wants Your Help to Benefit Those in Need

ach year, the San Diego County Bar Foundation awards grants to local organizations that offer legal and public services for underserved San Diegans. As the charitable arm of the San Diego County Bar Association, hundreds of children, elderly, domestic violence victims, immigrants, veterans and many more in need are helped by the funds raised each year by attorneys, judges, legal professionals and community members. “We’re calling on all attorneys, judges, and legal and allied professionals to donate the monetary equivalent of one hour of your billable time, or any amount you see fit,” said Micaela Banach, the Bar Foundation’s board president. The Bar Foundation’s funds come from contributions from the local legal and business communities and from fundraising programs throughout the year, including its signature “Evening in La Jolla” benefit. Banach added, “We’d like to see the entire legal community participate in our ‘Give an Hour’ program. This will help us reach even more San Diegans in need.” With that in mind, here are the 10 reasons to “Give an Hour”: 1. We know time is scarce, but we also know time is money. You may not always have time to volunteer at your favorite local charity, but giving an hour this way can make a huge difference. 2. You can donate to multiple organizations with one donation. Since its inception, the Bar Foundation has granted more than $2 million to 50 legal aid and public interest organizations throughout San Diego County. Your one-time or recurring donation will help a wide variety of individuals and groups. For a full list of previous grantees, visit www.sdcbf.org/grant-programs. 3. We’ll do the research for you! You don’t have to spend hours reviewing the dozens of local organizations that provide legal assistance and education in San Diego to figure out which one to donate to. The Bar Foundation undergoes a thorough review process of local charitable organizations and awards grants to those that strive to close the justice gap by supporting thousands of children, elderly, domestic violence victims, immigrants, veterans and so many more in need.

7. You can donate a little or a lot. It all helps! Choose the level that’s right for you — Still in Law School ($25), My Best Friend Is a Lawyer ($50), Yeah, Got My First Job as an Associate! ($100), Just Made Partner ($250), In-House Counsel, You Know What That Means ($300), At the Top of My Game ($500) or any other amount of your choice. Need three more? Here are just a few of the types of people you will help with your “hour”: 8. Help a North County mother escape domestic violence. Your donation helps domestic violence survivors through organizations like the Community Resource Center and the San Diego Family Justice Center Foundation. Here, these survivors receive assistance filing for temporary restraining orders, divorce and child custody — all essential to permanently escape abuse and establish long-term safety and stability. 9. Educate a Burmese refugee on the American legal system and his or her rights. The Bar Foundation’s grants benefit several different immigration and refugee nonprofits, including Karen Organization of San Diego, Casa Cornelia and Jewish Family Service. Karen Organization executive director Nao Kabashima said, “This grant truly means that all of us, regardless of race, ethnicity, religion or immigration status, are important parts of San Diego and should have equal access to justice in this society.” 10. Provide community legal clinics to homeless youth. Through organizations like Think Dignity and Father Joe’s Villages, San Diego’s homeless community is able to access legal services and help break the cycle of homelessness and poverty. Deacon Jim F. Vargas said, “The Homeless Court Program and the generous funding from the Bar Foundation is critical to ensuring that our homeless neighbors, who have worked hard to address their issues, can access the housing they need.” For more information about the San Diego County Bar Foundation, or to make a donation, visit www.sdcbf.org/giveanhour.

4. Feel happier. According to a study by the University of Missouri and UC Riverside, people who gave to others tended to score higher on their levels of joy and contentment versus those who did not give. 5. Join a group of like-minded attorneys. By “Giving an Hour,” you are joining a group of like-minded attorneys, judges and other legal professionals who are dedicated to helping others. The Bar Foundation’s signature events, including Evening in La Jolla and the Distinguished Lawyer Memorial, allow supporters an opportunity to gather and celebrate their common philanthropy. 6. It’s tax-deductible. The San Diego County Bar Foundation is a 501(c)(3), so your donation may be tax-deductible. 40 SAN DIEGO LAWYER March/April 2017

Above: Karen Organization of San Diego (KOSD) legal workshop. Larkapor Moo, KOSD's Program Manager, has been hosting various community workshops for legal-related issues.

Distinctions Individuals and organizations in our community were recently honored for a variety of achievements. The following is a list of recent community recognitions:

CaseyGerry Partner Robert Francavilla was honored as 2016 Trial Lawyer of the Year by the Consumer Attorneys of San Diego.

Julie Myres, outreach coordinator with the San Diego Superior Court, was recently honored by the American Bar Association with the Burnham “Hod” Greeley Award.

Littler Associate Kyle Nageotte was elected as chair of the California Young Lawyers Association.

Candace Carroll, of counsel at Sullivan Hill Lewin Rez & Engel, was named 2017 chair of the San Diego Convention Center Board of Directors. Attorney Gil Cabrera was named vice chair of the board.

Pettit Kohn Ingrassia & Lutz Shareholder Valerie Garcia Hong was recently honored by the Filipino American Cultural Organization with the HIYAS Award for outstanding achievement in the field of law.

Priyanka Talukdar, Sullivan Hill Lewin Rez & Engel associate, was recently appointed to the South Asian Bar Association, San Diego Chapter board of directors.

San Diego County Bar Association Executive Director and CEO Ellen Miller-Sharp is the recipient of the Friend of the Organization Award from the Tom Homann LGBT Law Association.

Krystal Weaver, associate with Wilson Turner Kosmo LLP, was elected president of the San Diego chapter of the Federal Bar Association. Carolina Bravo-Karimi was elected as president-elect for the organization, and Morgan Suder was elected president of public relations.

Passings Harley Mayfield recently passed away. After a career as a naval aviator serving with astronauts Schirra and Shepard, Harley joined the California Attorney General’s office. He won a United States Supreme Court case and became head of the criminal division in San Diego. Harley was known for his intellect, honesty, fairness and subtle sense of humor.

Attorney Roscoe Keagy passed away in January. Roscoe practiced condemnation law and was the attorney of record for many state appellate decisions and several state Supreme Court decisions.

March/April 2017 SAN DIEGO LAWYER 41

THANK YOU:

100 PERCENT CLUB 2017 The San Diego County Bar thrives only because of the support and talents of each and every one of our members. Thank you to our “100% Club” firms, whose attorneys are all members of the SDCBA in 2017. Your leadership and dedication to our profession is truly appreciated.

Allen, Semelsberger & Kaelin, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo APLC Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes ALC Beamer, Lauth, Steinley & Bond, LLP Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butterfield Schechter LLP Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer D’Egidio Licari & Townsend, APC Dentons US LLP Devaney Pate Morris & Cameron LLP Dietz, Gilmor & Chazen, APC District Attorney’s Office Duckor Spradling Metzger & Wynne ALC Dunn DeSantis Walt & Kendrick, LLP Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fischer & Van Theil, LLP Fleischer & Ravreby

10+ years as 100 Percent Club

Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz Law Group APLC Fredrickson, Mazeika & Grant, LLP Garmo & Garmo LLP Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP Graham Hollis APC Green Bryant & French, LLP Greene & Roberts LLP Gresham Savage Nolan & Tilden PC Grimm, Vranjes & Greer, LLP Henderson, Caverly, Pum & Charney LLP Higgs Fletcher & Mack LLP Hooper, Lundy & Bookman, PC Horton Oberrecht Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins, Glatt & Hulme LLP Kirby & McGuinn APC Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama l Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC McCloskey, Waring & Waisman LLP Men’s Legal Center Miller, Monson, Peshel, Polacek & Hoshaw Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Neil, Dymott, Frank, McFall & Trexler APLC Nicholas & Tomasevic LLP Noonan Lance Boyer & Banach LLP Office of the San Diego City Attorney Paul, Plevin, Sullivan & Connaughton LLP

Peterson & Price, APC Pettit Kohn Ingrassia & Lutz PC Pope, Berger, Williams & Reynolds, LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC RJS Law Rowe | Mullen LLP San Diego Unified Port District Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Cauley & Moot LLP Selman Breitman, LLP Seltzer|Caplan|McMahon|Vitek, ALC Sheppard, Mullin, Richter & Hampton LLP Shoecraft Burton, LLP Shustak Reynolds & Partners, PC Siegel, Moreno & Stettler, APC Simpson Delmore Greene LLP Smith, Steiner, Vanderpool & Wax, APC Solomon, Grindle, Lidstad & Wintringer, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Stoel Rives LLP Stokes Wagner ALC Sullivan Hill Lewin Rez & Engel Summers & Shives, APC Thorsnes Bartolotta McGuire, LLP Walsh McKean Furcolo LLP Ward & Hagen LLP Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes ALC Wingert Grebing Brubaker & Juskie LLP Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP

#sdlaw

Share pics from your office view! Use #sdlaw when you post to social media or email bar@sdcba.org. You may appear in our next issue. View from CaseyGerry's office

March/April 2017 SAN DIEGO LAWYER 43

PHOTO GALLERY DIALOGUE ON DIVERSITY Photos by Alicia Countryman California Supreme Court Justice Hon. Goodwin Liu discussed implicit bias and the importance of diversity at the SDCBA's Annual Dialogue on Diversity on February 23. Thank you to event sponsors California Western School of Law; CaseyGerry; Cozen O'Connor; Higgs Fletcher & Mack LLP; Klinedinst; Littler; Paul Plevin, Sullivan & Connaughton LLP; Procopio; San Diego Business Journal and Wilson Turner Kosmo LLP.

Hon. Goodwin Liu

L-R: Loren Freestone, Angelica Sciencio, Hon. Goodwin Liu, Jerrilyn Malana, Ben Aguilar, Ellen Miller-Sharp

Jerrilyn Malana

Alastair Agcaoili, Judy Bae

Hon. Goodwin Liu, Hon. Robert Longstreth

Ben Aguilar

ANNUAL BENCH-BAR RECEPTION Photos by Jason de Alba Attorneys and judges spent an evening together at the SDCBA's Annual Bench-Bar Reception on March 7. Thank you to event sponsors Antonyan Miranda; Thomson Reuters Westlaw; AHERN; Torrey Pines Bank; Valdez Team; Ringler and Judicate West.

L-R: Hon. Esteban Hernandez, Hon. John Scherling, Hon. Julia Kelety, Hon. Kevin Enright

L-R: Puja Sachdev, Hon. Keri Katz, Andrella Gonzalez

L-R: Hon. Daniel Lamborn, Hon. Cynthia Freeland, Hon. Robert Amador, Claudia Garcia, Hon. Lisa Rodriguez

L-R: Lisa Frise, Kimberly Neilson, John Melvin

Loren Freestone

L-R: Ben Enriquez, Yvonne Ricardo, John Whittemore, Annie Kinsey

L-R: Lisa Suwczinsky, Cathy Richardson, Whitney Skala March/April 2017 SAN DIEGO LAWYER 45

PHOTO GALLERY SAN DIEGO COUNTY HIGH SCHOOL MOCK TRIAL COMPETITION

Scripps Ranch High, First Place Team

Photos by Steve Silva High school students from all over San Diego County competed in this year's mock trial competition in February. Thank you to all of the coaches and attorney volunteers.

L-R: David Greenberg, Alana Robinson, Hon. David Gill, Frank Barone, Loren Freestone

Our Lady Peace, Second Place Team

Carter Tarkany

Joseph Orabona

James Freedman

SAN DIEGANS IN MIAMI FOR ABA MID-YEAR MEETING

Anna Romanskaya

Marcella McLaughlin, Ellen Miller-Sharp

Want to see more? Like our Facebook page! @sdcountybar #sdlaw

Wilson Schooley

SDCBA leaders represented the Bar at the annual meeting in Florida.

BAR LEADERS DINNER San Diego bar leaders gathered for dinner and discussed ways to continue collaborating.

Front Row (L-R): Kristin Rizzo, Tracy Badua, Judy Bae, Rick Liu; Back Row: Loren Freestone, Krishiv Mukherji, Alastair Agcaoili, Peter Kang, Gina Kim, David Seto, Pratik Shah

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Glass Mediations......................................... 16 Huver Mediation......................................... 28 JAMS................................................................... 18 Judicate West ............................................... 26 Kathryn Karcher........................................... 26 Law Office of Stacie L. Patterson....... 25 Law Office of Steven C. Vosseller...... 34 LawPay.............................................................. 23

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