San Diego Lawyer July/August 2016 by San Diego County Bar Association

2016

THE

COURTS

ISSUE

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

The number of San Diego attorneys appointed to national leadership of the Volkswagen diesel emissions litigation

Congratulations to David S. Casey, Jr., selected from top trial lawyer applicants nationally to be one of 22 attorneys representing U.S. consumers in this important environmental corporate fraud litigation.

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CONTENTS

Page

Departments

Court Order 19

Federal Court 50th Anniversary Series The history behind local courthouse names

Compiled by Karen Hughes By Seve Gonzales, Hon. Janis Sammartino, Brittany Torbert, Crystal Vasalech, Jessica Wallach

State of the Courts Reports on our local bench By Ray Huard

Drug Court Helping drug offenders break free from addiction and aiding the community along the way

Specialized Service A guide to our specialty courts

A New Challenge? Or business as usual? How the U.S. Supreme Court is resolving cases with eight justices on the bench By Victoria Fuller

The Electoral College: A Quick Civics Lesson Five things to know about the electoral college By Jeremy Evans

President's Feature Anatomy of a Bar President's decision process

State Bar Court Hoping that attorneys are never parties in this court, here's an inside look into how it works By Edward McIntyre

Deans Using your law degree as a force for good

Ethics When what you know could hurt you By Edward McIntyre

Technology Litigation hold considerations

A Brewing Industry Business and legal insights on our town's growing craft beer industry By Jeremy Evans

Tips Great interviewees remember “GAIN” By Stacie Patterson

Distinctions

By Niels Schaumann

By Stephanie Karnavas

Why I Belong Get to know SDCBA member Christine Wu

The Journey Toward Justice Starts Here The Legal Aid Society of San Diego continues providing legal services to the underrepresented By Gregory Knoll

Photo Gallery Summer fun in San Diego's legal community

By Bill Kammer

Follow San Diego Lawyer! sandiegolawyermagazine

@SDLmagazine

Issue no. 4. 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 © 2016 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 July/August 2016

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Christine Wu

WHY I BELONG

The Wu Firm Education: University of Michigan, B.A. (Go Blue!); University of San Diego School of Law, J.D.; University of San Diego School of Business, MSEL (beginning Fall 2016)

Co-Editors Edward McIntyre Christine Pangan

Editorial Board Hali Anderson Craig Benner Elizabeth Blust George Brewster, Jr. Brody Burns Decker Cady Barry Carlton James Crosby Jeremy Evans Michelle Evenson Frantz Farreau

Victoria Fuller Renée Galente Eric Ganci Michael Hernandez Stephanie Karnavas Erik Nelson Suzanne Schmidt David Seto Christopher Todd Teresa Warren

Proudest career moment: Fortunately, I have had a few great career moments including, most recently, opening the doors to my own law practice. There is still a long way to go, and so much to do, but I am most proud of every time I didn’t give up when I encountered a bump in the road. I have so many people to thank for that. Family: I have an amazing and supportive boyfriend, Joey; the cutest dog-child, Luna; and of course, my parents, Chase and Ling, who have stuck with me through thick and thin. Birthplace: I was born and raised in Las Vegas, Nevada. Current area of residence: San Diego, California and I am never going to leave.

Cartoonist George Brewster, Jr.

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

Follow San Diego Lawyer! sandiegolawyermagazine

Areas of practice: I advise companies, startups, entrepreneurs, and investors in transactional business matters and assist in their global migration strategies and growth.

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If I weren’t an attorney, I’d be lost. I’ve never wanted to be anything but an attorney (except when I thought I wanted to be a brain surgeon at age seven but realized quickly blood makes me dizzy). I do hope to be more than an attorney one day and become a global entrepreneur. The best thing about being an attorney is doing everything I can to exceed other people’s expectations of what an attorney actually is and does. We really are great people (at least everyone I know and work with) and we want to and can help others especially in a time of need without ulterior motives. Last vacation: Mazatlan, Mexico Favorite web site: Huffington Post is my go-to for news but I always get sucked into relatable BuzzFeed articles that have a number in their title (e.g. “21 Pictures that Will Restore Your Faith in Humanity” or “25 Ways to Tell You’re a Kid of the ‘90s”). Hobbies: Traveling around the world, listening to podcasts (motivational, news, or “Serial”), binge-watching TV shows and Netflix documentaries, Michigan Football, shopping on Amazon, and spending time with my family and friends. Favorite book: I love my unforgettable classics (One Hundred Years of Solitude, Lord of the Flies) and have newer picks (The Kite Runner, Is Everyone Hanging Out Without Me?), but Harry Potter is my favorite. Favorite musical artist: Beyoncé

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.

FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM

Favorite food: Sushi Omakase and Vietnamese What makes San Diego’s bar so special/unique? We genuinely care about and respect each other. There really is no way to explain it except to experience it. My biggest supporters are other attorneys who want me to succeed, and in return, I do whatever I can to help them. Our progressive, selfless tendencies and traditions are truly one of a kind. Why do you belong to the SDCBA? I belong to SDCBA because it is an invaluable resource to me as an attorney (continuing education and professional development opportunities), a business owner (networking events and member discounts), and a community partner (community service, diversity initiatives). It is the one place that supports me, all legal professionals, and the city of San Diego in every way. How does your SDCBA membership help keep you connected to the legal community? It keeps me informed of and offers important programming and events, provides a directory of professionals for informational and referral purposes, it puts me in touch with others on a consistent basis, and highlights our community leaders and all the good attorneys do locally and nationally. July/August 2016 SAN DIEGO LAWYER 7

ANATOMY OF A BAR PRESIDENT’S DECISION PROCESS “In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.” — Theodore Roosevelt

In my everyday life, it feels like I make approximately 1 million decisions a day – from how to manage my next case to how to present my credentials to a potential new client, from whether we are going to make do with leftovers or go out to eat to whether i am going to sign the boys up for yet another after-school activity. But when it comes to being the Bar President, decisionmaking reaches a whole new level – one that’s more complex than perhaps it seems. (And than i realized!)

While there is A bit of “Presidential Privilege” that comes with being the SDCBA President, the weight and responsibility of every decision at the Bar – particularly those that have an effect on the membership or the reputation of the Association – are carefully weighed and discussed by many.

As a legal organization, I’m sure you all can appreciate that the bylaws, policies, and guidelines are extensive in many areas – though there are a lot of big decisions that can never be anticipated – whether it’s forming a new Section or Committee, shifting to a new policy or practice, or addressing a political firestorm in our own backyard. and because we are an association of lawyers, words matter!

I am so lucky to know that I never stand alone – there are lots of people that help make everything happen here at the Bar. We’re fortunate to have an exceptionally thoughtful and deliberate board, comprised of a diverse group of attorneys representing many facets of the practice. and behind all of us is our wonderful, professional internal team. Here are just a few of the other ways superstars make things happen in your Bar World:

8 SAN DIEGO LAWYER July/August 2016

Task Forces When something is being addressed for the first time or needs to be addressed in short order, we have the ability to assign a task force. Depending on the need, past presidents, current board members, retired judges, section leaders and members who represent different areas of practice and demographics are appointed to task forces, which in turn report to the board of directors with their recommendations on various issues.

Purview Committee The purview committee is convened when a decision needs to be made about whether the Bar should address an issue or in response to a request for input from a member of the bar or the public at large.

Board Level Committees: In addition to practice-specific committees open to all members, there are board-level committees that help do the work of the Bar. they make recommendations to the Board, with input from the membership where needed. A few examples of Board Committees include:

Lawyer Referral and Information Service Advisory Committee:

council on the Integration of New Lawyers: Charged with ensuring that new lawyers become integrated into the Bar and legal community, and that the bar's programming is relevant, meaningful, and meets the needs of this constituency.

charged with providing guidance for the Lawyer Referral and Information Service (LRIS), and ensuring that both panelists and the public are well served by the program.

Section and Committee Council:

The San Diego Lawyer Magazine Editorial Board:

Charged with reviewing proposed activities of sections and committees; responsible for providing input, resources and recommendations and overseeing the health and success of the Association’s 39 sections and committees.

This group is directed by the publication’s two editors, and oversees all of the magazine’s content. Interested in writing for San Diego Lawyer or contributing story ideas? Email bar@sdcba.org to join this committee.

"Individual commitment to a group effort -that is what makes a team work, a company work, a society work, a civilization work." – Vince Lombardi July/August 2016 SAN DIEGO LAWYER 9

SAVE THE DATE

Thursday, September 29 For information visit www.sdcba.org

Join us in welcoming the California Supreme Court to San Diego and celebrating the launch of the Student Civics Engagement Academy, a joint project of the San Diego County Bar Association and the San Diego Regional Chamber of Commerce. Space will be limited at this luncheon and by invitation only.

BY NIELS SCHAUMANN

DEANS

Using Your Law Degree as a Force for Good Legal education teaches more than just lawyering skills

t California Western, the pursuit of social justice is ingrained in our unique approach to legal education.

We believe we must reinforce in our graduates an appreciation for justice on a human scale. We pride ourselves on community service — it’s in the California Western DNA.

beyond the walls of our campus. Through their pro bono service, project attorneys and students can change the course of history for California families, righting wrongs and reuniting parents and children, husbands and wives. In the past year, three San Diegans were exonerated of crimes and returned to their loved ones.

For five years running, we have been named to the President’s Higher Education Niels Schaumann Community Service Honor Roll — the ultimate federal recognition an institute of higher education can receive for its commitment to volunteering, service-learning, and civic engagement. This recognition is the result of the efforts of more than 500 students and 55 faculty members, who together donated more than 125,000 hours of service in the most recent reporting period for the award. As one of only two schools in California to receive this award with distinction, we are ecstatic that our efforts have been recognized in this way.

The Community Law Project, which recently celebrated its 10th year of proving free legal services to low-income individuals, operates five local clinics that served more than 850 clients in 2015. Many of the project’s clients have no place else to turn for their legal issues, and California Western students volunteer their time while developing hands-on lawyering skills.

California Western was also the first law school to receive the State Bar of California’s Pro Bono Service Award in 2010, and this year one of our recently retired faculty members — Professor Janet Weinstein — received the prestigious 2016 Father Robert Drinan Award from the Association of American Law Schools Section on Pro Bono and Public Service Opportunities for her years of dedication to making California Western a leader in creating public interest attorneys.

Our Traffic Court Clinic places an advocate side-by-side with motorists in San Diego traffic court, where a $200 moving violation equals a week’s worth of groceries for a poor family.

Programs Designed with Community in Mind Our California Innocence Project is world-renowned for solving the most human of legal problems: freeing innocent people who have been wrongly convicted. Their tireless work expands far

Our Pro Bono and Public Service Honors Societies recognize students who go above and beyond the call of community service. Last year, 123 students submitted documentation for 14,680 hours — an average of nearly 120 hours per student.

Legal education gives us the ability to help others. Our programs give us the means, and as a result, we all benefit — the law school, the law students, and the community. Our school believes that our students can do more with their law degree. We don’t just train lawyers, we train ethical social advocates who not only practice law, but move society forward. Niels Schaumann is President and Dean of California Western School of Law.

Through their pro bono service, project attorneys and students can change the course of history for California families, righting wrongs and reuniting parents and children, husbands and wives. July/August 2016 SAN DIEGO LAWYER 11

BY EDWARD McINT YRE

ETHICS

When What You Know Hurts Never attempt to mislead the court with a false statement of fact

“B

ummer! He can’t do that to me. Not now.” Macbeth heard Duncan rant just outside his office and raised his voice. “Nephew, should we talk?” Duncan came in clutching three sheets of paper. “You seem a bit upset?” “Upset? Not the half of it.” “Tell me about it.” “You know the Andrews case? That big contract action? I’ve got a summary judgment motion pending. Fully briefed. Argument next week. Statute of limitations. A winner —” “Congratulations.” “Until my client just screwed it up. Big time.” “How so? Wait, isn’t Sarah working with you on that case? Let’s bring her in.” While they waited for Sarah, Duncan fumed in his chair, rereading the last two pages he held. After Sarah arrived, Macbeth picked up the thread. “Duncan was about to tell me some news in Andrews.” “We’ve got a clean statute defense. Client testified at his deposition that the company never received any notice of a claim — not a bloody hint — until just last year. Absolutely rock solid. Cross examination couldn’t budge him.” “Significance of the date?” “That’s two years after the statute ran. Plaintiff has no evidence whatsoever of giving earlier notice. Slam dunk!” “And then today?” “Then this.” Duncan held up the collection of papers. “He’s correcting his deposition testimony. Went back. Dug through old records. Paper records, if you believe it. In a warehouse. He found a letter that goes back four years. A notice of claim.” Sarah interrupted, “Ouch.” “He even had the corrections notarized. Worse, he waits until after I file the motion to tell me.” Sarah again. “Isn’t he really late. I thought he agreed on the record to read and correct the transcript in 30 days.”

your opponent promptly about your client’s corrections.” “And if I get busy?” “Purposefully delay? Doesn’t that just compound the deception on the court? I won’t allow it in this firm.” Duncan looked to Sarah. She shook her head. “Our duty is to use ‘those means only as are consistent with truth and never to seek to mislead the judge.’” “That kills my summary judgment CARTOON BY GEORGE BREWSTER JR. motion.” “He did. That’s why I thought I was good Macbeth interrupted. “First, it’s the to go.” client’s motion. Based on the client’s facts. Macbeth held up both hands. “That aside, Most importantly, as an officer of the court, it raises the fundamental question, where you can’t attempt to mislead the court with you go now?” a false statement of fact. With the facts, “Well my papers were all true when I filed as you now know them, your client isn’t them. Briefing’s closed.” entitled to summary judgment. Correct?” “Duncan, you’re not suggesting —“ “If it had notice four years ago, I guess Duncan held up the three sheets of not. So what now?” paper. “Besides, isn’t this attorney-client “You tell your client that since the privileged?” company had notice back then, you have “May I see?” After a quick review, to withdraw the motion. You send the Macbeth returned the papers. “That looks corrections to opposing counsel. And you exactly like what you described. He’s withdraw the motion.” making some minor corrections to the “Suppose my client balks at that. transcript. Page and line. Mostly spellings. Changes his corrections. Won’t let me send Cleaned up a bit of grammar. Until the them on?” blockbuster at the end.” “Let’s hope that doesn’t happen. If it “So?” does, we’ll reconvene and talk about even “Not seeking legal advice. Or giving you unhappier alternatives.” facts to get it. In fact, he says: ‘Pass this on to the court reporter and other parties.’” Editorial Note: Rule of Professional “How about a confidence or secret. You Conduct 5-200 and The State Bar Act, Bus. know, that State Bar Act provision you & Prof. Code section 6068(d) address a quote all the time?” lawyer’s duty of candor to the court. Sarah spoke: “B and P Code section 6068(e)(1)?” “Yeah, that one.” “‘Pass this on’ suggests it’s not confidential.” Macbeth moved some things on his desk. “Doesn’t this squarely raise your duty of candor to the court?” Edward McIntyre (edwardmcintyre1789@gmail.com) “How so? My brief was accurate when I is an attorney at law and Co-Editor of filed it. Briefing’s closed.” San Diego Lawyer. “Duncan, really? Those ‘facts,’” Macbeth No portion of this article is intended to constitute legal advice. Be sure to used air quotes, “aren’t accurate now. Won’t perform independent research and analysis. Any views expressed are those be accurate when you argue. The record of the author only and not of the SDCBA or its Legal Ethics Committee. will be to the contrary. At least if you notify July/August 2016 SAN DIEGO LAWYER 13

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BY BILL KAMMER

TECHNOLOGY

You’ve Really Got a Hold on Me

(aka Litigation Hold Considerations)

o area of discovery requires such immediate attention as the necessity of preserving relevant data and documents. And no area results in more sanctions than a failure to do so and to institute and monitor reasonable legal holds. The significant risk of sanctions for both clients and counsel should get our attention because reasonable, proportionate processes can probably avoid the sanction minefields.

client to identify sources of information, likely custodians of that information, and appropriate methods for its preservation and collection.

Large companies and large law firms solve many of these problems through sophisticated software methodology. However, the ABA reports that the great majority of U.S. attorneys work in offices with ten or fewer attorneys. The obligation to preserve appropriately is common to all cases and all parties, therefore individuals, small companies, and their lawyers are those most in need of guidelines to avoid future troubles.

“After our initial advice, warnings, and planning, we must regularly monitor the hold processes and remind our clients of their ongoing obligations.”

By now, most of us know that the obligation to preserve electronically-stored information (ESI) and paper documents arises when litigation can reasonably be expected. But the follow-up question should be: “What next?” We lawyers should promptly instruct any new client to institute a legal hold and explain to them what that means, what they should do about it, and to what information and documents the obligation applies. We cannot achieve that with a boilerplate letter and let it go with that. No letter will be appropriate for every client, so careful thought should go into the composition of the instructions to the client. Good lawyering also requires working with the

Lawyers and their clients can avoid most problems by taking immediate, reasonable steps to design and implement the litigation hold. Case law is evolving toward validating litigation holds that

focus on particular time periods, particular custodians, particular categories of documents, and documents that contain particular language. Recent amendments to the federal rules now provide that the preservation obligation covers information that is relevant to a claim or a defense. Those amendments now clearly state that the litigation hold must be proportional to the issues, the amount in controversy, and the relative abilities of the parties to effect an appropriate hold. Each client will have electronic information in various, but not all, of the likely locations:

hard drives, servers, mobile devices, storage media, social media such as Facebook or Twitter, or information in a Google account. Each client must preserve the information that falls into any of those categories that is relevant to the issues. If a lawyer or a client is not conversant enough with these issues, there are consultants and vendors who can advise and assist with the design and implementation of an appropriate hold and the required preservation. Ensuring a legal hold as defensible is not a final accomplishment after we complete the initial tasks. Data changes daily, new data is created daily, and some processes erase or migrate data daily. After our initial advice, warnings, and planning, we must regularly monitor the hold processes and remind our clients of their ongoing obligations. As counsel, we can always negotiate with our opponents to refine or relax the breadth of the preservation, especially as we learn more about the claims and defenses and refine the issues in our cases. There is no perfect script for instituting appropriate preservation and collection in litigation. There are multiple available checklists and forms we can refer to and adapt to particular circumstances and cases. All that should be required are reasonable efforts. Most courts have concluded that perfect results are unnecessary, and would rather appropriate, good-faith and reasonable efforts. Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.

July/August 2016 SAN DIEGO LAWYER 15

TIPS

BY STACIE PATTERSON

For A Great Interview, Remember: GAIN

any people wonder what makes for a good interview. As Director of the San Diego County Bar Association-ACC Diversity Fellowship Program (DFP), I recently had the opportunity to review applications and interview numerous DFP applicants. During the application process, it became pretty clear that some students are stellar when being interviewed. In thinking about them they seemed to share characteristics and skills that can be summed up with the mnemonic: GAIN. The successful students showed: 1) Graciousness and were filled with gratitude; 2) advocacy for themselves and appeared to possess the ability to advocate for others; 3) insight into themselves and others; and realized there would be 4) no do overs.

RACIOUSNESS AND GRATITUDE

The students who gave successful interviews appeared to be happy to be at the interview, excited to be afforded the opportunity to participate in the DFP process and pleased to meet the interviewers. We have all heard about the benefits of gratitude: increased energy, more emotional intelligence, decreased depression, less anxiety and reduced loneliness.

“When our brains constantly scan for and focus on the positive, we profit from three of the most important tools available to us: happiness, gratitude, and optimism.”1 Luckily, for gracious and thankful candidates, our frontal lobes are filled with mirror neurons. Mirror neurons have been compared to “’neural WiFi’ – we pick up not only another person’s movement but her emotional state and intentions as well.”2 A happy and pleasant interviewee creates an environment in which the interviewer is more likely to reflect the attitude of the interviewee. In addition, gratitude and graciousness change the focus from the candidate to the employer. Having a gracious attitude requires the candidate to ask: What is impressive about the employer or interviewer? What are their contributions on behalf of their clients or the profession? What positive attributes are the employer and interviewer bringing to the table?

DVOCACY

The interview is likely the first opportunity for a candidate to orally advocate for himself or herself. If done well, the interviewer will hopefully see how the candidate will advocate on behalf of his or her clients. When interviewing, one of the goals of an attorney’s self-advocacy is to show trustworthiness. Hiring someone is extremely risky and attorneys tend to be

Achor, Shawn, The Happiness Advantage: The Seven Principles of Positive Psychology, 97 Bessel Von der Kolk, The Body Keeps the Score; Daniel J. Siegel, Mindsight. 3 Charles Feltman, The Thin Book of Trust: An Essential Primer for Building Trust at Work. 1

16 SAN DIEGO LAWYER July/August 2016

“A happy and pleasant interviewee creates an environment in which the interviewer is more likely to reflect the attitude of the interviewee.” risk adverse. The potential employer needs to answer: Can I trust this candidate? Can I make what is valuable to me vulnerable to this person? Am I willing to put my business, reputation and client’s well-being in this candidate’s hands? Consequently, it is incumbent upon the job candidate to demonstrate trustworthiness. In professional settings, trustworthiness is judged by assessing the candidate’s reliability, sincerity, competence and care.3 Strong candidates show that they truly want the opportunity; can be counted on to do what they say; have or can obtain the relevant skills; and care about the employer, work and clients. For instance, the most successful candidates demonstrated knowledge of, and a commitment to, the mission of the DFP. In addition, they were able to discuss how they had encouraged diversity in the past and were committed to doing so in the future.

Id. Daniel Goleman, Emotional Intelligence, 43.

TIPS

NSIGHT

The insight needed to interview has four components: self-awareness, selfmanagement, social awareness and relationship management. “People high in self-awareness are remarkably clear in their understanding of what they do well, what motivates and satisfies them, and which people and situations push their buttons.”4 Self-management allows candidates to be aware of their emotions and put them on hold to pursue larger, more important goals. Social awareness builds upon the selfawareness that allows candidates to pick up on subtle social signals that indicate what others need and want.5 Perceiving what the interviewer values and responding accordingly will build trust. Self-awareness, self-management, and social awareness all build upon each other to allow successful relationship management. A candidate who interviews well knows who they are and manages

their personalities and emotions while being aware of subtle clues being given by the interviewer. Successful DFP candidates were very aware of who they were and the personality traits and skills they were presenting. The candidates were attuned to what interested the interviewers and were able to steer the conversation to include beneficial information and topics.

O DO OVERS

Great candidates put their best foot forward the first time and appreciate they must show their gratitude, advocacy skills and insight immediately. They have already provided their best resumé, writing sample, and references. Luckily, all of us can grow in our GAIN techniques. Gratitude, self-advocacy and insight cost nothing and can increase with only a little consistent practice. Stacie Patterson (slp@spattersonlaw.com) is a solo practitioner and Director of the SDCBA's Diversity Fellowship Program.

Proven advocate. Proven results. Kathryn Karcher, for your client’s appeal.

karcherappeals.com | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California

July/August 2016 SAN DIEGO LAWYER 17

in San Diego

The Five Judges Honored on the Federal Buildings Compiled by Karen Hughes

This article is part of a special series in recognition of the U.S. District Court, Southern District of California's 50th anniversary which the court will celebrate on September 16, 2016. Here, Hon. Janis Sammartino and recent law school graduates provide brief biographies of the judges named on our local federal court buildings. HONORABLE JACOB WEINBERGER By Hon. Janis Sammartino, U.S. District Court, Southern District of California Judge Weinberger died in 1974, while the red brick federal courthouse at the corner of Front and Broadway was under construction. This courthouse is named in Judge Edward J. Schwartz’s honor. My own chambers on the fourth floor used to belong to Judge Schwartz. On April 22, 1994, then Chief Judge Schwartz gave a warm and eloquent speech about his former colleague at the dedication ceremony for the Weinberger Courthouse. He described “Jake” Weinberger’s professional demeanor as “a conciliator” — “ a master of negotiations” who knew how to “move forward in this troubled world” and not “get rattled or to make a fuss over the ordinary vicissitudes of life.” On a personal note, Judge Schwartz noted that Weinberger “always had a twinkle in his eye and a kindly smile” and had “active and quiet perception of others.” In sum, “Jake spoke softly and carried a silken wand.”

L-R: Hon. James Carter, Hon. Jacob Weinberger

I encourage you to visit the Bankruptcy Court’s website at www.casb.uscourts.gov for further information about Judge Weinberger’s early life and career achievements. Follow the links under “Court Tour” to the “Jacob Weinberger Story.” HONORABLE EDWARD J. SCHWARTZ By Crystal Vasalech, Thomas Jefferson School of Law, Class of 2016 In 1918, six-year-old Edward Schwartz sold newspapers in downtown San Diego and later loaned his $2,000 savings to his father to start a new business. Prior to graduating law school during the Great Depression, he was an English major who dreamed of becoming a playwright — until his father “reminded” him that he wanted to be a lawyer. After Pearl Harbor, he joined the Navy and was stationed aboard the battleship Nevada during the invasion of Iwo Jima. He was appointed his first judgeship in 1959 and heard a full calendar immediately after taking the oath as a federal judge in 1967. He was one of two judges during a time when the Southern District had

Hon. Edward Schwartz

the heaviest caseload of any U.S. district. The criminal calendar was so exhaustive that only one civil case was heard in three years by a visiting judge. In one day, Judge Schwartz handled 156 matters: taking the bench at 9 a.m., only taking one 10-minute recess at noon, and not leaving the bench until 9:30 p.m. Judge Schwartz was in charge of designing the new courthouse, coincidentally located on the same block as his kindergarten. An ad hoc committee commissioned by Chief Justice Warren Burger mandated an impractically small courtroom size. These were nicknamed “Tom Thumb” courtrooms. Judge Schwartz obtained a congressional hearing, where he prevailed and 14 new district courts could continue construction. He was Chief Judge from November 20, 1969 until March 26, 1982 and kept an active calendar until his death in 2000. HONORABLE JAMES M. CARTER By Brittany Torbert, California Western School of Law, Class of 2015 The Honorable James Marshall Carter was born in Santa Barbara, CA in 1904. He graduated from Pomona College in 1924, and received his J.D. from the University of California in 1927. Judge Carter was appointed to the bench by President Truman in 1949 and served as the second resident judge in San Diego in 1966, following Judge Weinberger. Judge Carter is credited with convincing the U.S. Judicial Conference to create a separate judicial district covering San Diego and Imperial Counties. Due to his efforts, the redistricting occurred and San Diego split from Los Angeles to form its own district in 1966. Judge Carter served as the first Chief Continued on page 36 July/August 2016 SAN DIEGO LAWYER 19

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Editor's Note:

e lawyers risk taking our courts for granted — always been there; always will be. Rarely do we marvel at the wisdom of our 1789 Constitution; courts separated from the executive; they and it from the legislature. Moreover, we assume — since Chief Justice Marshall declared the court will “say what the law is” — that they have the final word. Jackson’s distemper (“John Marshall has made his decision; now let him enforce it.”), the exception proving the rule; Eisenhower’s acceptance of Brown v. Board of Education, a triumph of the rule of law. History, however, suggests a caveat. The Roman Republic, foremost democracy among the ancients, had a similar, check-balanced, government: the Popular Assembly and Senate; an executive (the consuls); the law courts. A codified legal system ruled life among Roman citizens and how Rome dealt with citizens of an empire that stretched from the Scottish border to the Caspian Sea. Trials in the law courts before juries — some as large as 50 — with both document and witness evidence. But when events corrupted the courts — jurors susceptible to bribes; the tyranny of the Popular Assembly overriding unpopular verdicts — the Republic unraveled. In the Senate, home of the courts, 20 senators sliced up Julius Caesar, the sitting executive. The next day, during Caesar’s funeral, the people’s Assembly rioted, stripping benches from the law courts to erect a makeshift funeral pyre in the Forum. Civil war, oligarchy (Second Triumvirate), and tyranny (Octavian, later self-styled Augustus) followed. The Roman Republic ended; then the Roman Empire. As Edmund Burke cautioned: “Those who don’t know history are doomed to repeat it.” San Diego Lawyer focuses this issue on our courts: independent champions of the best principles of our Republic; refuge for litigants seeking justice, far from popular whim. We lawyers, and judges, take them for granted at our peril.

THE STATE OF THE

COURTS

IN SAN DIEGO COUNTY

Reports from the Bench By Ray Huard

Edward McIntyre San Diego Lawyer Co-Editor July/August 2016 SAN DIEGO LAWYER 21

SAN DIEGO SUPERIOR COURT B

udget issues are the biggest challenge facing San Diego Superior Court in 2016 as they have been for the past several years, although Presiding Judge Jeffrey Barton said that the situation is improving somewhat. “We’re making slight steps forward from the down years of 2012 and 2013 but not yet

operating hours to stay open until 4 p.m. Monday through Friday. They had been closing at 3 p.m., Monday through Thursday, and at noon on Fridays because of the budget cuts.

Social media also became a bigger issue in 2015 and 2016, Barton said, with emails and postings on Facebook, Twitter and elsewhere becoming part of court cases filed by prosecutors and defense attorneys.

Planning also is well underway for the pending move into a new downtown Central Courthouse. The court also is slowly making the transition from paper to digital.

Judges also have had to spend more time admonishing jurors to avoid posting anything about the case they’re hearing. “The reason why the jury system works is you have 12 people who have seen and heard the same evidence and discuss the case,” Barton said. “Social media can challenge that.” The Superior Court’s transition from paper to digital was slowed by the budget cuts, but Barton said it’s moving forward.

“My advice to attorneys is to continue to work with judges in moving their case through the system and continue the high level of professionalism lawyers in San Diego have typically shown.” – Hon. Jeffrey Barton recovering from the cuts we made,” Barton said. When the recession hit, the Superior Court’s budget was slashed by $33 million, said Executive Officer Michael Roddy. “That brought us down to $167 million,” Roddy said. “We’re now back up to about $175 million.”

“After years of down budget news and cuts, this is clearly the huge silver lining out there for the court and the public,” Barton said of the move to a new central courthouse. “It’s the largest, most complex move the court’s ever made, at least in my 35 years in the profession.”

“I hate to sound cynical, but I don’t see it anywhere in the near future, certainly not in the next five to seven years,” Barton said.

With 71 courtrooms and room for a workforce of about 600, the 22-story, $555.5 million new court building at 1100 Union Street will replace the 55-year-old Central Courthouse at 220 West Broadway and the Family and Probate courthouses currently located on 6th and 4th avenues. Civil cases will continue to be handled at the Hall of Justice, 330 West Broadway.

Still, the courts are slowly restoring some services that were cut, including extending

If all goes well, the move to the new building will come in January, Barton said.

To be made whole, the San Diego court needs about an additional $31 million, Roddy said, but Barton said he isn’t optimistic about getting it.

22 SAN DIEGO LAWYER July/August 2016

Civil cases have been digital since the 2008/2009 fiscal year, but plans are being made to replace the existing digital casemanagement system within the next two to three years. The new case-management system is in place in family court and starting in August, family court records will be digital. Traffic court will be the next to go digital, followed by criminal. Another ongoing issue is a drive by the court and the San Diego County Bar Association to improve civility, and he’s seen evidence that it has started to pay off, Barton said. Rather than battling it out, Barton said he’s seeing more instances of lawyers working together to resolve cases. “My advice to attorneys is to continue to work with judges in moving their case through the system and continue the high level of professionalism lawyers in San Diego have typically shown,” Barton said.

Hon. Jeffrey Barton, Presiding Judge of the San Diego Superior Court

U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

dding a child care center to a court renovation project was one of the biggest achievements over the past year for the U.S. District Court for the Southern District of California, according to Chief Judge Barry Ted Moskowitz. “Naturally, getting money for a building project is a challenge in and of itself, but we were successful,” Moskowitz said. The child care center, to be located in the space formerly used by the IRS, is part of a $61 million project to remodel and renovate parts of the old court complex at 960 and 880 Front Street that were vacated when the 16-story new federal courthouse opened in December 2012 at 333 West Broadway. Several federal agencies and an existing child care center that lease space elsewhere will move into the remodeled building. The child care center will serve about 100 families, mostly employees of the court and the federal agencies, Moskowitz said. The San Diego federal court also was among a group of courts that piloted an electronic payment system for lawyers representing criminal defendants. “They submit their requests electronically for representing indigent defendants. It was all by paper, and now, they submit it electronically,” Moskowitz said. “The court reviews it, and makes any modifications if necessary, and issues a check.” In a continuing trend, Moskowitz said that the number of criminal cases going to trial has dropped significantly.

Where in the past, he would try about 15 to 20 criminal cases a year, Moskowitz said, “Now, I’m trying five or six.” A big reason for that is that federal prosecutors have changed the way they charge defendants so that mandatory minimum sentences don’t kick in, particularly on drug-related offenses, the judge said. “The charging philosophy has been a big change,” Moskowitz said. As a result, judges have more discretion on sentencing, and defendants have an incentive to work out a plea agreement rather than risk going to trial, where in the past they’d face possible prison sentences of 10 or 20 years under mandatory minimum sentencing guidelines, Moskowitz said. “We can more reasonably determine the sentence,” he said. On the civil side, Moskowitz said that there’s been an increase in the number of patent cases, in part, because the court worked with patent lawyers in developing rules and procedures to move those cases more efficiently. The Southern District is a patent pilot court where five of the judges have developed specialized expertise in handling patent cases.

Moskowitz’s advice to new attorneys appearing in federal court is be prepared on the law and the factual record and “be courteous and professional to the other side.” Courtesy is an issue that the San Diego County Bar Association has emphasized as part of its ongoing drive to improve civility in the courts. Moskowitz said lawyers who appear in his court “are pretty well behaved and I tell them I expect that.” “Where the problem is, is in depositions and discovery,” Moskowitz said. “It’s less regulated, there are no judges there.” In those situations, unhappy clients may expect their lawyers to carry on as they’ve seen lawyers behave on television, Moskowitz said, adding that he sees it in going over transcripts. Another issue that has risen in some courts is the use of social media, potential jurors posting or reading information on sites like Facebook and Twitter, but Moskowitz said he hasn’t seen it in his court. “I tell them they can’t (use it) and no one’s reported that they violated that,” Moskowitz said.

“Be courteous and professional to the other side.” – Hon. Barry Ted Moskowitz

Hon. Barry Ted Moskowitz, Chief Judge of the U.S. District Court, Southern District of California July/August 2016 SAN DIEGO LAWYER 23

COURT OF APPEAL

oing digital has been the most challenging issue in 2016 for the 4th District Court of Appeal Division One in San Diego.

FOURTH APPELLATE DISTRICT DIVISION ONE

“Electronic filing is now mandatory unless there is some kind of hardship,” McConnell said. “All our briefs and writs come in electronically.”

“It’s been a big change for the court, but we’re adjusting,” said Administrative Presiding Justice Judith McConnell.

Hardship exceptions would include cases in which someone is representing themselves and doesn’t have a computer.

"Keep in mind that now that we are reading more documents in electronic form, we don't want to wade through many pages before we learn what the key issues are." – Hon. Judith McConnell

“The shift to electronic filing has been a big change for attorneys and, as far as I can tell, they are pleased. In addition to no longer being required to print and bind briefs, attorneys can file and serve electronically, saving money for themselves and their clients.” McConnell said. Among other things, lawyers get more time to prepare documents and they get answers from the court sooner than when everything was done on paper. “It gives everybody time to, hopefully, do a better job,” McConnell said. She said she’s getting comfortable with the move to digital, although she finds it harder to read long documents on a computer or tablet than on paper. The justices have the option of having electronic documents printed on paper once the documents are filed with the court, but McConnell said lawyers could help by making their briefs, briefer. “I would like them to get to the point. Keep in mind that now that we are reading more documents in electronic form, we don't want to wade through many pages before we learn what the key issues are,” McConnell said.

“It’s just another step in the direction of getting more electronic access to the courts,” McConnell said. For now, some cases are a mix of paper and electronic, with briefs filed electronically, but case records still kept on paper. Another possible change the division is considering is live-streaming oral arguments. “The California Supreme Court does that now and the 5th District just started as well,” McConnell said. “People can watch oral arguments live if they want.” As a side benefit, McConnell said that the quality of oral arguments will likely improve if more people can watch them. “One other significant change that the administrative presiding justices and the Judicial Council have supported is a pay increase for court-appointed attorneys — their first in many years,” McConnell said. “These lawyers don’t get rich doing courtappointed work.” Fees vary, depending on the complexity of the work, but the pay raise boosts them by $10 an hour. Also in 2016, as part of its ongoing commitment to civics education, the division in April held a special oral argument session at an El Centro high school attended by more than 600 students. “That was a really significant event and learning experience for the students,” said McConnell, who is leading the judiciary’s civic education drive. Still to come in 2016 is a September state Supreme Court visit to San Diego “to hear oral arguments in our courtroom,” McConnell said. “I’ve had this in mind for a long time.”

Keep it simple, she said. “There’s no need to put your brief in bold or italics or all caps to make a point,” McConnell said. “The words will do it. You don’t need to underline things and bold things.” Although it’s still in the planning stages, McConnell said she’s hoping that court records also will soon be available electronically “so people can access things on the Web rather than coming down to the court.” 24 SAN DIEGO LAWYER July/August 2016

Hon. Judith McConnell, Administrative Presiding Justice of the Court of Appeal, Fourth Appellate District, Division One

“What we’re doing are the things we didn’t have time to do in any way during the period I would say from 2008 into 2013.” – Hon. Laura Taylor

etter times have given bankruptcy judges a chance to catch their breath and work on projects that were put off during the worst of the Great Recession, said Laura Taylor, chief judge of the U.S. Bankruptcy Court, Southern District of California in San Diego. “During the days when we had 100-plus matter calendars, there was only so much that you could do,” Taylor said. “What we’re doing are the things we didn’t have time to do in any way during the period I would say from 2008 into 2013.” Among them are revising rules and forms for Chapter 13 filings, including a review of “presumptive reasonable rates,” which are the fees bankruptcy lawyers are allowed to charge without requiring court approval. “That is a fee that is presumptively reasonable, so that’s something that we’re looking at, what people in the community would customarily charge, sort of a baseline assumption,” Taylor said. “If you want more than that, the process would allow a fee application. They can always come in and say, ‘Hey, I want a million dollars to do a Chapter 13 case.’ We’ll have a hearing on that.” Working with the San Diego County Bar Association, the court also is reviewing the requirements and responsibilities statement lawyers must sign as part of a bankruptcy case, “saying they understand

U.S. BANKRUPTCY COURT FOR THE SOUTHERN

DISTRICT OF CALIFORNIA

the services people are paying for, these are the services that will be provided,” Taylor said. “We’re going to be looking at that, as well, to make sure the representation is what we want it to be,” Taylor said. “Otherwise, you have people coming in representing somebody and they’re charging low dollars, but they’re really not providing the services the person needs to be successful in a bankruptcy case.” From a peak of more than 20,000 cases a year, the bankruptcy court is down to a more manageable work load of less than 10,000 in 2015 and 2016. “That brings in a different set of challenges,” Taylor said. “They have fewer cases, but they’re bringing us more complex matters.” The Southern District court along with bankruptcy courts in Alaska, New Jersey and Oregon, also is piloting a new updated digital case management system, Taylor said. “We’re getting the technology earlier, but we’re also getting it while it still has bugs and part of our job is to try to work around the bugs and advise the administrative office of the court what needs to be fixed,” Taylor said. “I’m excited about it because I think there are great tools there.” The new system will allow judges to build electronic notebooks that will aggregate

information, including case notes, motions, and documents supporting the motions. “It will pull down just what we need,” Taylor said. “It’s going to save us significant time in preparing materials for a hearing.” Unlike some other courts, social media hasn’t been an issue in bankruptcy court. “We don’t do jury trials. I think the big impact of social media is the potential for tainting the jury pool, so I don’t have that problem,” Taylor said. “I think we all know, as a jurist, we need to stay off it.” Taylor’s advice to lawyers new to bankruptcy court is to learn the rules and follow them. “The important thing, when you come into bankruptcy court, is to understand that we’re federal. It’s amazing how many people miss that,” Taylor said.

Hon. Laura Taylor, Chief Judge of the U.S. Bankruptcy Court for the Southern District of California

July/August 2016 SAN DIEGO LAWYER 25

DRUG COURT Helping offenders break free from the chain By Stephanie Karnavas

he hallway outside of Dept. 19, on Tuesday morning before Drug Court begins is bustling. The crowd is a mix of men and women of a variety of ages and ethnicities who are mingling with the familiarity of old friends. “When’s your surgery?” “How’s your daughter?” “What color are you phasing up to today?” I strike up a conversation with a woman sitting on the bench next to me who seems to know everyone. Assuming she works within the Drug Court, I introduce myself and ask her what she does. “Oh I don’t work for the court,” she says. “I’m in the program.” She goes on to explain to the rigors of what that means, summing it up by stating, “It’s a hard program, but it has saved my life — twice.”

While the participants wait out in the hall, inside the courtroom, San Diego Superior Court Judge Peter Gallagher is not on the bench, he’s at a table wading through files, discussing the status of program participants, and screening those recently convicted with the Drug Court team of lawyers, law enforcement, and treatment providers. Watching them at work, it is clear why Drug Court is referred to as a collaborative court. The team’s process is informal and cooperative, and also, heartening. The same sentiments of saving lives I heard outside the courtroom are echoed within. “I think we have a good chance of changing her life,” someone at the table says.

July/August 2016 SAN DIEGO LAWYER 27

rug Court was the first of now many “collaborative justice” or “problemsolving” courts that have developed in San Diego County and across the nation over the last several decades. According to the National Association of Drug Court Professionals, there are more than 2,700 Drug Courts operating in all 50 states and U.S. territories. While the operations of these courts vary by jurisdiction, they all combine extensive drug and alcohol treatment services with judicial case management. The goals of every Drug Court are also essentially the same: reduce crime by reducing drug use; save money; save lives. San Diego County is no exception. San Diego has been operating four Adult Drug Courts — one in each of its Superior Court branches — since 1997. Here, offenders must first plead guilty to be considered for the program. They need not be convicted of a drug offense, but drugs must have influenced their crime in some fashion. Offenders charged with violent offenses, sex crimes, and drug manufacturing are excluded. Once admitted, under the close supervision of the judge and the rest of the Drug Court team, the individual begins the five-phase, 18-month program, culminating in an official graduation ceremony. Graduation day doesn’t come easy. Throughout the entire program, the participant is required to regularly attend court, to participate in an intense schedule of individual treatment and therapy, and to submit to frequent random drug testing and home visits by law enforcement. The program is designed to keep the participants busy; no free time to go back to the people, places and things that cause them to use. And “it’s strict — it’s really strict,” said Joseph Fusco, a Deputy District Attorney (DA) currently working in San Diego’s downtown Drug Court. “It’s very intensive. They are drug tested every week — sometimes every day. They could be forced to go to meetings every day depending on how well they’re doing. They could be thrown into custody whenever they mess up.” Individual attention and recognition are also mainstays of the program. The participants “each have counselors that are

28 SAN DIEGO LAWYER July/August 2016

assigned to them,” explained Julie Gibson, the Deputy Public Defender (PD) who supervises the downtown Collaborative Courts and Calendars Section of the San Diego Public Defender’s Office. “The counselors and the entire team get to know that individual, and they get to know us, so they know what to expect. And then when they’re falling, or when we see something happening with them, we all are aware of them.” Participants who do well are praised in front of their peers and rewarded with things like movie passes, sobriety tokens, and certificates promoting them to the next “phase.” Those that falter — by failing a drug test or missing treatment — face sanctions ranging in severity from written assignments and community service to jail time or even termination from the program.

“We just had a kid.... We started with him when he was 19. Now he’s a manager at a major restaurant and he has dreams to open his own restaurant.” There are more than 3,000 Drug Court graduates in San Diego and countless stories of relationships transformed, families reunited, and lives saved by Drug Court. “We just had a kid — he was just 21 or not even 21,” said Deputy DA Fusco. “We started with him when he was 19. Now he’s a manager at a major restaurant and he has dreams to open his own restaurant. And he probably will. But if he hadn’t entered in with us, he’d be dead for sure.”

“The reality is that drug court treatment is much more effective at changing their behavior so that they don’t use again, thereby reducing recidivism,” said Deputy PD Gibson. “If you look at the statistics, their recidivism rates are much lower than if you just put them in jail or residential treatment.” Despite the well documented success of Drug Court nationwide, it still has its detractors — those who believe that the only response to crime is punishment — plain and simple. But Drug Court’s biggest challenge (besides inadequate funding), will not be whether it will exist, but how it will adapt and evolve in response to changes in the criminal justice system like that affected by California’s Proposition 47. That 2014 ballot initiative downgraded certain drug possession felonies to misdemeanors and mandated misdemeanor sentencing for certain theft offenses commonly associated with drug users. Without the threat of a felony conviction and a lengthy stint behind bars, fewer drug offenders are now choosing Drug Court. Deputy DA Rachel Solov, Chief of the Collaborative Courts Division, explained: “Right now, with Prop. 47, it’s easier for them to do a month or two months in custody than to do these programs. These programs are not easy. You see a lot of people who are eligible for the programs but maybe don’t want to participate in them because they’re hard and they’re a lot of work. But when they do engage in treatment and they do participate in the treatment — they are successful and they do really well.” As Deputy DA Fusco put it, “Drugs are a major factor in most crime. And this is trying to alleviate that. So if you care about what’s going on around you, we’re trying to help it. Drug Court works. That’s their motto — but it’s true. “ Stephanie Karnavas (stephanie.karnavas@sdcounty.ca.gov) is a senior deputy with the Office of County Counsel.

Take a look at how a few specialty courts, located in San Diego and Nationwide, offer relief for offenders, our communities and our courts.

veterans Court In 2016 11,000 veterans participated in 220+ Veterans Treatment Courts across the U.S.1

Mission: provide veterans with tools to treat mental health issues and become productive citizens.

Team:

Superior Court District Attorney’s Office Defense Bar Treatment Providers California Veterans Legal Task Force

How it works: Provides specially designed treatment for veterans with misdemeanor and felony convictions.

http://justiceforvets.org/vtc-history

Juvenile dependency Court

Mission: protect children who are alleged victims of abuse or neglect by a parent or caregiver and preserve or reunify families whenever possible.

How it works: Determines whether allegations of abuse or neglect are true and if child should be made a dependent of the court.

Team: Court Judges Attorneys for Parents Attorneys for Children Social workers Court Appointed Special Advocates (CASAS) Drug Treatment Providers

In FY 2014/15, 1,400+ Voices for Children CASA volunteers advocated on behalf of 2,282 children in the foster care system.2 2

homeless Court Mission: To counteract the effect of criminal cases pushing homeless defendants further outside society.

How it works: Helps homeless defendants resolve outstanding misdemeanor offenses and warrants through a plea bargain system, alternative sentencing structure, assurance of “no custody,” and program activities.

Team:

2,000 participants resolved 7,000+ cases from 2009 to 2012.3 Nearly

https://www.speakupnow.org/faqs/

Superior Court Prosecutor Public Defender Local Service Agencies

http://www.homelesscourtprogram.com/history-process-success/

Mission: Improve lives impacted by drug addiction and increase public safety by reducing the amount and frequency of drug related crimes.

Team: Superior Court Judges & Staff Public Attorneys Law Enforcement Case Management Treatment Providers

Drug Court

How it works: Hears selected felony & misdemeanor cases involving non-violent, drug-using offenders.

In 2016 nationwide, 2,734 Drug Courts will serve

136,000+ 4 people.

http://www.nadcp.org/learn/what-are-drug-courts/types-drug-courts

July/August 2016 SAN DIEGO LAWYER 29

A New Challenge or Business as Usual? Resolving Cases in an Eight-Justice U.S. Supreme Court By Victoria Fuller

espite the death of Justice Antonin Scalia last February, the remaining eight justices of the Supreme Court must still decide the cases on their docket. Last term, which just concluded at the end of June, those cases involved controversial issues such as President Barack Obama’s immigration program, restrictions on abortion, and affirmative action. How has the current vacancy impacted the resolution of the nation’s most critical cases? Few know the answer to that question better than Erwin Chemerinsky, a nationally-known Supreme Court scholar and the Dean of University of California Irvine School of Law. In an interview, Dean Chemerinsky explained that this is not the first time the Supreme Court has functioned in a prolonged vacancy. In 1987, the Senate rejected Judge Robert Bork as a nominee, and eight months passed before the appointment of Justice Anthony

Now, as in the past, the justices are “moving forward as best they can.”

Kennedy. In 1969, the court operated with an open seat for a year when the Senate rejected two of President Nixon’s nominees before confirming Justice Harry Blackmun. Nevertheless, Dean Chemerinsky predicted that the current vacancy “will be the longest in history” if it remains unfilled until after the presidential election. Now, as in the past, the justices are “moving forward as best they can.” The Court’s cases have proceeded as usual, and the justices have reached a tie vote in several of them. What may a deadlocked court do to resolve such a case? Dean Chemerinsky spoke of several options. So far, the court has not availed itself of one of them: scheduling tie cases for re-argument in a later term. Rather, in most of the cases leading to a tie vote, the court issued a tie decision stating only that “[t]he judgment is affirmed by an equally divided Court.” That was the result reached in United States v. Texas, the highly publicized case involving President Obama’s immigration plan, and Friedrichs v. California Teachers Association, a test case challenging agency fees charged by unions to nonmember teachers in California. But in Zubick v. Burwell, the court took unprecedented action in an effort to facilitate a compromise. In those consolidated cases, the parties hotly dispute whether the process for religious nonprofits to opt out of the Affordable Care Act’s birth control mandate violates the organizations’ religious freedoms. After oral argument, the court did something Dean Chemerinsky has never seen before — it issued an order suggesting its own compromise, and July/August 2016 SAN DIEGO LAWYER 31

asked the parties to submit supplemental briefing on how its proposal (or alternative solutions) might resolve their concerns. After receiving supplemental briefs, the court remanded the cases to their

What does the Constitution say about the roles and obligations of the President and the Senate when there is a vacancy on the Supreme Court?

respective appellate courts to afford the parties a further opportunity to reach a compromise. If the parties to Zubick cannot reach a compromise, what options do they have moving forward? And what about the parties involved in a case leading to a tie decision, which has no precedential effect? According to Dean Chemerinsky, the answer depends on the case. One option — pursued by the plaintiff in Friedrichs (the case challenging teacher union fees) — is to file a petition for rehearing. But the court’s denial of the petition came as no surprise. As Dean Chemerinsky remarked, obtaining the five votes necessary for reconsideration is unlikely when the same party was unable to persuade five justices in the first place. In a lawsuit like Friedrichs, then, a tie vote ends the case. Groups interested in pursuing a decision that has precedential effect will have to present the same issues in a new lawsuit filed on behalf of another teacher.

Setting politics aside, what does the Constitution have to say about the roles and obligations of the President and the Senate when there is a vacancy on the Supreme Court? Dean Chemerinsky shared this view: “The Constitution envisions that the President will appoint new justices when there is a vacancy. It uses the word ‘shall.’ The Constitution also envisions that the Senate will consider the appointment.” As Dean Chemerinsky explained, Article II of the Constitution requires the “advice and consent of the Senate” before a new justice may be confirmed. If the Senate refused to consider any presidential appointment, it “could allow the Supreme Court to go out of existence by refusing to fill vacancies.” In the end, “one branch of government cannot have such an extreme effect on another branch.” Victoria Fuller (vfuller@appealfirm.com) is an attorney with Niddrie | Addams | Fuller LLP.

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STATE BAR COURT Hoping you are never a party in this court, here's a look at our State Bar's Court process By Edward McIntyre

e found one California court where no lawyer ever wants to be a party — State Bar Court. Fortunately, almost all never will. So for those who will not see the inside of that court in person, let’s draw back the curtain a bit. California is unique among all United States jurisdictions. It is the only state with independent, professional judges dedicated to deciding lawyer discipline cases. The State Bar, as we all know, investigates complaints of lawyer misconduct. If the State Bar determines that a lawyer’s actions involve provable misconduct, State Bar prosecutors (Office of Chief Trial Counsel) file formal charges with the State Bar Court, either in San Francisco or Los Angeles, and prosecute those charges. We read the final results in the back pages of the State Bar Magazine. But it is still something of a mystery. Since 1989, the State Bar Court has had full-time judges appointed by the Supreme Court, the legislature and the governor. It has two departments: a Hearing Department — trial level — and a Review Department — appellate level — headed by the presiding judge. The Hearing Department has five judges, of whom the Supreme Court appoints two; the Governor, Speaker of the Assembly and Senate Committee on Rules, one each. Presently, three Hearing Department judges sit in Los Angeles; two in San

a violation of the Rules of Professional Conduct or the State Bar Act that could lead to discipline. The State Bar’s burden of proof is clear and convincing evidence. At that stage, the investigation is confidential.

Francisco. The Review Department has three judges, the presiding judge and two others, all Supreme Court appointees. Two Review Department judges currently sit in San Francisco; one in Los Angeles. The Review Department hears appeals each month in both San Francisco and Los Angeles. Ultimately, of course, the Supreme Court has final authority over critical lawyer discipline. How does the whole process work? Anyone can file a complaint against a lawyer with the State Bar; or the State Bar on its own can initiate an investigation. In either case, a State Bar investigator or Deputy Trial Counsel, or both, look at the facts to determine whether, if the facts are established, the lawyer has committed

If the State Bar decides to proceed, it must notify that lawyer, or the lawyer’s lawyer, that it intends to file a complaint (a Notice of Disciplinary Charges) and give the lawyer an opportunity to ask for an Early Neutral Evaluation (ENE) Conference before a State Bar judge. At the conference, the State Bar has to show up with a draft Notice of Disciplinary Charges or some other concrete statement of facts and the provisions of a Rule or the Act that form the basis for the claimed misconduct. The ENE conference is confidential and the State Bar judge must give the parties an oral evaluation of the merits of the case and possible discipline. If the case is not resolved, the State Bar can file and serve the Notice of Disciplinary Charges. Now, things change: the matter is public. The State Bar posts the charges on its website under the lawyer’s official profile. State Bar Court rules provide for limited discovery, primarily exchanges of documents, identities of witnesses and witness statements. Document subpoenas are allowed but depositions require court approval. The court strongly encourages a joint statement of facts wherever possible, and some facts are likely not in dispute — that the lawyer is a member of the State July/August 2016 SAN DIEGO LAWYER 35

Bar (jurisdictional requirement); that she or he did represent the complaining former client; that trust account bank records are authentic copies, etc. At trial, the rules of evidence apply, but not in a technical fashion; indeed, hearsay evidence can be admissible, although not as Continued 19 the only prooffrom ofpage a dispositive fact. A State Bar trial has, in effect, two stages: culpability and discipline. If the State Bar Court judge finds the lawyer culpable of an ethics violation, the seriousness of the violation and the number of them can determine the nature of the discipline to be recommended, according to established and published standards. Discipline can range from disbarment, through suspension (actual or stayed or some of both), to probation, to reproval, either public or private. At the trial’s conclusion, the hearing judge has 90 days to issue her or his decision — a statement of facts; conclusions of law; recommended discipline. 1

Either party can appeal to the Review Department, the decisions of which are found in the State Bar Court Reporter. If the Review Department affirms the trial judge, and if its recommendation is that the lawyer be disbarred or suspended, then its recommendation must go to the Supreme Court for final action. A decision to issue a public reproval does not require Supreme Court review. The Supreme Court then conducts its own investigation and makes an independent determination. Discipline follows Supreme Court action. How unlikely is a trip to the State Bar Court? In 2015, the State Bar received more than 15,000 new complaints; 4,600 remained open at year-end. During the year, the State Bar filed 558 cases in State Bar Court.1 We have almost 300,000 lawyers in California, so the odds are in your favor. Just follow the Rules! Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and Co-Editor of San Diego Lawyer.

Annual Discipline Report, State Bar of California, April 29, 2016, pp.8-9.

Continued from page 19 Judge in San Diego from 1966 to 1967 until he was appointed to the Ninth Circuit Court of Appeals, where he remained for the rest of his days until 1979. Judge Carter also envisioned a federal defender’s office that would provide justice and high quality service to the community. His vision became a reality in 1971 with the official creation of Federal Defenders of San Diego, Inc. What started with three dedicated attorneys working in the basement of the courthouse, grew into a successful organization that still serves our community. According to Judge William Enright, Judge Carter was “the Dean of the San Diego Judiciary.” He was a “towering, commanding presence on the bench of this court” and “the most creative, innovative, and dynamic judge I have ever known. To me, he was a force of nature. He created this district [and] gave our court a superb national reputation.” HONORABLE JUDITH N. KEEP By Jessica Wallach, University of San Diego School of Law, Class of 2016 Would you laugh at the sight of three giant, fuzzy bunnies commandeering a formal Bar Association Dinner? Yet, when this exact scenario played out in November 1979, the only audible laughter in the room was that of Judge Judith Keep. Judge Keep served as both the first female judge and first female chief judge to sit on the bench of the Southern District. A woman of firsts, Judge Keep encountered pervasive gender-imposed hindrances within the male dominated legal world. When Judge Keep was appointed, the invitees to the annual Bar Association dinner were almost exclusively male. Female paralegals garnered an invite to the event only to entertain the men by dressing up like Playboy Bunnies. 36 SAN DIEGO LAWYER July/August 2016

But in 1979, when the time for the “presentation of the bunnies” arrived, three female lawyers, sick of the tradition, emerged not in provocative Playboy ensembles, but completely covered, in fuzzy, brown, bunny suits. The rowdy room fell silent, with the exception of the uproarious laughter of Judge Keep. Keep’s commitment to both her gender and judicial role recast skepticism of gender diversity within the legal profession into a positive light. Following her tenure as chief judge, Keep kicked off a 21-year span of female chief judges. The annual dinner still occurs and hosts both male and female legal professionals. The bar bunnies, however, have never been invited back. HONORABLE JOHN S. RHOADES By Seve Gonzales, California Western School of Law, Class of 2016 The Honorable John S. Rhoades was a man who loved life. He loved his family — he proposed to his wife on their second date. He loved his job. He loved his books. He loved his home in Mission Beach, and he loved his mountain retreat in Julian. And while Judge Rhoades is most often remembered for his 22 years of devoted service to the Southern District Court, those who knew him best remember the man behind the robe who laughed often and lived life to the fullest. When asked about his positive attitude, Judge Rhoades talked about the great influence his mother had on him: “She was an amazing woman. Being left a widow very young with two little kids during the height of the Depression was tough . . . but she taught me to have a sense of humor. ‘Life is grim in many respects, but be cheerful about it.’” Judge Rhoades carried this attitude with him the rest of his life, and is quoted as saying, “If you can make people laugh, calm them down, you can get a lot done.” And certainly Judge Rhoades did just that, working a near full caseload until only three months before passing away at the age of 82.

LOOKING TO GET HIRED MORE OFTEN?

There are approximately 1,300,700 licensed lawyers in the United States and over 250,000 in California.

How will potential clients find you? 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

By Jeremy Evans

hen comparing the Electoral College to Major League Baseball, a colleague once quipped: “Despite how many runs you score, you must win more games than the other team to win the World Series.” We decided to dig a bit deeper into the analogy. Under the Electoral College rules, electors serve as “wins” in states, while American voters serve as “runs” scored in one state (i.e., one game). Essentially, to win the American presidency, you must win the Series (the Electoral College) to take home the trophy (the White House). Votes (runs) may ultimately give candidates more electors, but keeping with our analogy, it is a best-of-seven series despite how many runs you score in one game (i.e., votes you earn in one state).

Five Things to Know about the Electoral College: Understanding the Electoral College is about knowing our American History. “The Founding Fathers established [the Electoral College] in the Constitution as a compromise between election of the president by a vote in Congress and election of the president by a popular vote of qualified citizens.” With the above in mind, here are a few things you must know about the Electoral College before November comes along:

1. "The Electoral College is a process, not a place."1 You cannot earn a degree from the Electoral College, visit it, or put it on your resumé as a place of academia. Here is how the Electoral College explains the process: “The Electoral College process consists of the selection of the electors2 [there are 538 total], the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress. A majority of 270 electoral votes is

For example, assume that in game one of the World Series, the National League team beats the American League team by a score of 20-1. However, over the next four games the American League team beats the National League team by scores of 1-0, 1-0, 1-0, and 1-0, and wins the World Series. Similarly, for example, assume that Presidential Candidate A outperforms Candidate B by one million votes in one state's general election. Then Candidate B wins multiple states, albeit with fewer voters, but wins the presidential election. That, ladies and gentlemen, is the Electoral College in a baseball nutshell. You can score a bunch of runs, but if you do not win games you cannot win the World Series; if you do not win states, you cannot win the White House.

required to elect the President. Your state’s entitled allotment of electors equals the number of members in its Congressional delegation: one for each member in the House of Representatives plus two for your Senators.3 “Under the 23rd Amendment4 of the Constitution, the District of Columbia is allocated 3 electors and treated like a state for purposes of the Electoral College. For this reason, in the following discussion, the word ‘state’ also refers to the District of Columbia. “Each candidate running for President in your state has his or her own group of electors. The electors are generally chosen by the candidate’s political party, but state laws vary on how the electors are selected and what their responsibilities are . . .2 “Most states have a ‘winner-take-all’ system that awards all electors to the winning presidential candidate. However, Maine and Nebraska each have a variation of ‘proportional representation.’”1 Note: California is a winner-take-all state with 55 electoral votes, the most in the United States.3

2. Electors are not bound to the popular vote in their respective state, unless required by state law. “There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States. Some States, however, require electors to cast their votes according to the popular vote. These pledges fall into two categories — electors bound by State law and those bound by pledges to political parties.”5 California’s electors are bound by state law (§ 6906)6 to allocate all 55 electoral votes to the candidate who wins the state’s popular vote. However, there are 21 U.S. states that are not bound to allocate their electoral votes according to the popular vote.7 “Faithless Electors,”8 as they are called, have never decided a presidential election. State laws, like the one in California, “bind” their electors to vote for the candidate who wins the popular vote through a number of methods including oaths and fines.9 Happily, there are no states that have both proportional allocation, similar to various July/August 2016 SAN DIEGO LAWYER 39

states during the primary election period, which are also not bound to allocate according to the popular vote.

3. In case none of the above made sense: “When Americans vote for a President and Vice President, they are actually voting for presidential electors.”10 These presidential electors, known collectively as the Electoral College and chosen by the people, elect the chief executive.

4. Why the Founding Fathers compromised to create the Electoral College.11 The Electoral College was created so that smaller states (i.e., “states’ rights”) would have more say in who became President. For example, with modern electorate and demographics, the mid-western and southern states can be heard among the largely populated northeast and west. Of course the electoral map looked very different in the late 1770s, as did the states, but the Founding Fathers foresaw, with the 1 2 3 4 5 6 7

help of providence, issues where one part of the country could control outcomes. If you doubt this, look at the last two presidential Electoral College maps. Red (Republican) in the middle, blue (Democratic) on the coasts.12 More land for the Republicans, more crowds and cities for the Democrats, but presidential candidates still must win a majority (at least 270 electoral votes) to win the White House. Essentially, presidential candidates have to win far and wide across many states and voting demographics. In other words, they have to win more games as opposed to scoring more runs.

5. The Electoral College has changed and sometimes we have close calls in presidential elections. Article II, Section 1 of the U.S. Constitution established the Electoral College as the formal body that elects the President and Vice President of the U.S.13 However, the “12th Amendment — ratified in 1804 — changed the original process, allowing for separate ballots for determining the

http://www.archives.gov/federal-register/electoral-college/about.html http://www.archives.gov/federal-register/electoral-college/electors.html#selection http://www.archives.gov/federal-register/electoral-college/allocation.html http://www.archives.gov/federal-register/electoral-college/provisions.html#23 http://www.archives.gov/federal-register/electoral-college/electors.html#restrictions http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=06001-07000&file=6900-6909 http://archive.fairvote.org/?page=967

Distinctions

President and Vice President.” We will come back to that point shortly. “The closest Congress has come to amending the Electoral College since 1804 was during the 91st Congress (1969–1971). H.J. Res. 681 proposed the direct election of a President and Vice President, requiring a run off when no candidate received more than 40 percent of the vote. The resolution passed the House in 1969, but failed to pass the Senate.” 14 Back to 1796: Before the ratification of the 12th Amendment to the United States Constitution (requiring two separate votes for President and Vice President) in 1804, “[i]n 1796, John Adams became President and Thomas Jefferson became Vice President despite opposing each other for the presidency [in the General Election].” Imagine that, in 2016. Now you are in the know with the Electoral College and ready to impress your family and friends come November. Jeremy Evans (jeremy@csllegal.com) is Managing Attorney with California Sports Lawyer.

https://en.wikipedia.org/wiki/Faithless_elector http://history.house.gov/Institution/Electoral-College/Electoral-College/ 10 http://www.history.com/topics/electoral-college 11 http://www.fec.gov/pdf/eleccoll.pdf 12 http://www.archives.gov/federal-register/electoral-college/map/predict.html 13 http://constitutioncenter.org/interactive-constitution/articles/article-ii 14 http://history.house.gov/Institution/Origins-Development/Electoral-College/ 8 9

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

San Diego Superior Court Judge David Szumowski retired after serving 18 years at the court.

John Edson, special counsel with Sheppard Mullin, was announced recipient of the San Diego Volunteer Lawyer Program's (SDVLP) Pro Bono Publico award. Kimberly Stewart, managing attorney to the Administrative Presiding Justice, Fourth District Court of Appeal, was honored as recipient of SDVLP's Community Service award.

CaseGerry partner Thomas Penfield was recently elected to the American Board of Trial Advocates.

Hon. Frank Birchak recently took oath of office for the San Diego Superior Court.

Hon. Anthony Battaglia of the U.S. District Court for the Southern District of California was honored with the California Western School of Law's (CWSL) Outstanding Judicial Officer Award. Marcella McLaughlin, San Diego County Deputy District Attorney and past-president of the SDCBA, was named recipient of CWSL's Alumnus of the Year Award. Mattheus Stephens, founding partner of Progressive Law Group, was honored by Union Bank and KPBS as a local hero during LGBT Pride month.

To submit information regarding honors of a community or civic nature or passings in the legal community, email bar@sdcba.org. 40 SAN DIEGO LAWYER July/August 2016

Legal Aid Society of San Diego

The Journey Toward Justice Begins Here The Sargent Shriver Civil Counsel Act (AB 590) Feuer, was signed into law in 2009. This legislation created a 10 dollar supplemental filing fee on certain post-judgment motions that would be used to fund pilot projects throughout California through a competitive RFP process. The purpose of the pilot projects is to provide low-income, unrepresented, Californians with representation on legal issues affecting basic human needs (i.e. housing, child custody, etc.) in order to determine its benefits, if any, for the clients and the courts. The pilot projects maintain incredible amounts of data on their outcomes, which will be presented in an evaluative report to the legislature. Since 2011, the Legal Aid Society of San Diego (LASSD) has been the lead legal aid program, in partnership with the San Diego Superior Court and the San Diego Volunteer Lawyer Program, on two funded pilot projects. One of the projects, administered and staffed by LASSD, is demonstrating significant benefits to clients and the court when full representation is offered to all tenants and landlords in the Central Judicial District who meet the income criteria of 200% of federal poverty. Following is an example of such full

representation: Our client was a 58 year-old woman with a physical disability whose sole income was her monthly SSI check ($889.40). In January 2016, our client incurred unexpected medical expenses. She contacted the property manager where she lived and entered into a written agreement to pay February 2016 rent on an amended schedule; she would pay the rent after receiving reimbursement for her medical expenses. The property manager retained the only copy of this written agreement. In February 2016, a new management firm replaced the property manager. The new management denied the existence of the written agreement and told our client that she needed to pay immediately or get out. When our client sought to enforce the agreement, the new management filed an eviction against her for non-payment of rent. Our client called and retained LASSD to represent her in this case. Shriver Staff Attorney, Michael Sullivan, was assigned to represent her. Deeply concerned that it would be impossible to have a positive landlord/tenant relationship with the new management, our client decided she would be better served if she could have time to move out of the unit and be relieved of

By Gregory Knoll

any obligation to pay rent through her move-out date, rather than seeking to enforce the prior written agreement and retain possession of her unit. During the course of the unlawful detainer proceedings, plaintiff landlord attempted to illegally and forcibly oust her. Michael Sullivan received a flurried voicemail from our client describing how the new management called police to the premises and requested that they remove her. That same day, attorney Sullivan contacted the plaintiff landlord’s attorney to demand that the landlord stop any further unlawful interference with our client’s right to possession of her premises. The plaintiff landlord immediately stopped his illegal efforts to remove our client from her home. This case proceeded to settlement. The plaintiff landlord agreed to our client’s proposed move-out date, to waive his claim of rent and holdover, and to provide a neutral reference regarding our client’s tenancy. Our client moved with dignity and enough money saved to pay first and last month’s rent at her new apartment. In addition to the obvious benefit to our client, much unnecessary court time was also avoided. Gregory Knoll is Executive Director/Chief Counsel of the Legal Aid Society of San Diego.

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

• Insurance

• Construction

• Personal injury

• Consumer rights and remedies • Employment • Homeowners association disputes

(including product liability, medical and dental malpractice)

• Professional liability • Real estate (including purchase-and-sale, disclosure, broker liability, landlord/tenant)

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

July/August 2016 SAN DIEGO LAWYER 41

a l l o J La

Evening in

at the Birch Aquarium

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Saturday, September 17, 2016 • 6-10 p.m. Time is running out to get your ticket for the annual “Evening in La Jolla” at the Birch Aquarium. Don’t procrastinate - buy one today!

Open Bar Silent Auction

Heavy hors d’oeuvres

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Host $200, General admission $150, Judiciary, government and young attorneys $85

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All proceeds benefit the San Diego County Bar Foundation and the legal charities it supports.

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and legal challenges are presented? For expertise in the matter, Ballast Point Senior Attorney Albert Ubieta weighed in for us. Ballast Point, one of the largest craft breweries, was initially seeking an Initial Public Offering (IPO), but then sold to a publicly traded company, a major brewer for $1 billion, what happened there? [We sold to] Constellation Brands, Inc., a publicly traded company (NYSE: STZ), so effectively we did go public — just via a different route. It also means that the work we did to prepare ourselves for public scrutiny was justified.

By Jeremy Evans

A discussion on the business and the law of the growing craft beer industry

an Diego's craft beer industry continues to grow. Industry value has doubled over the past five years. In 2011, the value was $300 million; in 2015, it rose to $600 million. By the end of 2014, there were 97 breweries in the San Diego County.1 The 120 craft breweries currently in San Diego County employ more than 4,500 people and totaled $851 million in beer sales for 2015. Based on 2015 sales volume, four local craft brewers were ranked in the top 50 of nationwide craft breweries.2 The 2016 edition of Colorado-based Brewers Association's annual ranking lists Escondido’s Stone Brewing Co. at No. 10, Miramar’s Ballast Point Brewing & Spirits at No. 11, Mira Mesa’s Green Flash Brewing Co. at No. 41 and Pacific Beach’s Karl Strauss Brewing Co. at No. 46. With the increasing strength and growth in the local craft beer industry, what business

What are some of the business and legal challenges with IPOs? What about selling to a publicly traded company — what are some of the legal challenges faced in such partnerships and how do you address them? We can offer a few general points to consider. We believe that these issues will need to be addressed whether looking at an IPO or a private transaction (or, frankly, in order to build a strong independent business). • Due diligence. Due diligence. Due diligence. It needs to be done well ahead of the time that you enter into discussions with underwriters or potential private partners. • Bring in financial auditors who will be rigorous, and be prepared for the disruption that this will entail. • Review your compliance with TTB [Alcohol and Tobacco Tax and Trade Bureau] and state regulations for all of your brands in all of your territories. Review your licenses, label approvals and marketing efforts in each state where you have shipped beer. • Make sure your intellectual property is well protected. Have a system for regularly filing trademark applications, globally if necessary. Have agreements with all of your vendors, suppliers and partners. Perform clearance searches before adopting a mark. Regularly police your own marks. (Investors will be willing to pay a premium for a strong brand — you must demonstrate that the brand is well protected to justify

“San Diego’s 10 fastest-growing industries,” by Mike Stetz, in Our City, Politics, Business & Real Estate, Fall 2015, quoting a report by the National University System Institute for Policy Research 2 “Report: Local Beer Makers Generated $851 Million in 2015 Sales,” by Lou Hirsh in San Diego Business Journal, April 5, 2016 3 https://www.brewersassociation.org/press-releases/brewers-association-lists-top-50-breweries-2015/ 1

that premium). • Show how you have grown — where and why — and make reasonable projections for the near future. Moreover, show how you plan on meeting demand: plans for manufacturing expansion, increased distribution and sales efforts. Again, these things need to be done proactively, and not just once you have entered into negotiations with a potential partner. Get ahead of the game. In addition, if your transaction involves partnership with another firm (especially another manufacturer), you must not only be prepared to be subjected to due diligence, you should carry out your own due diligence on the potential partner. Consider the impact of the three-tier system if your partner holds any retail or distribution assets. There are a lot of moving pieces (and paper) in these transactions — make sure to bring in qualified, experienced counsel to assist along the way, and make sure to have frank conversations with them throughout the process.

o recap, due diligence and getting ahead of the game are essential to success, which is true in the craft beer industry, and with business and the law. Albert’s insight highlights that craft beer is most recognizable to consumers and brewers in two very important areas: taste and intellectual property. When you sip a cold brew, you are indulging in its taste and its brand (i.e. trademark). Ballast Point’s Grapefruit Scuplin or Stone Brewing Co.’s Stone Imperial Russian Stout are tastes you remember as much as they are brands you remember. That is not accidental. Think of your favorite beverage, likely the same rule applies. It is branding, marketing, advertising, and the law, all in one batch. Jeremy Evans (jeremy@csllegal.com) is Managing Attorney with California Sports Lawyer.

Don't miss the Annual Beer and Wine Law Update event on August 25! www.sdcba.org/beerlaw2016

July/August 2016 SAN DIEGO LAWYER 43

100

LUB

EN PERC T C 2016 SDCBA

100 PERCENT CLUB 2016 The San Diego County Bar Association’s 100 PERCENT CLUB is a special category of membership that indicates an outstanding commitment to the work done through SDCBA programs and services in the legal profession and the community. The following firms (five or more lawyers) are members of the 100 PERCENT CLUB for 2016, having 100 percent of their lawyers as members of the SDCBA.

Allen, Semelsberger & Kaelin, LLP Andersen Hilbert & Parker, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Artiano Shinoff & Holtz* Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes* Basie & Fritz* 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 Butz Dunn & DeSantis APC* Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP* Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Contreras Law Firm Daley & Heft, LLP D’Egidio Licari & Townsend, APC Del Mar Law Group, LLP Dentons US LLP Dietz, Gilmor & Chazen APC District Attorney’s Office* Duckor Spradling Metzger & Wynne* English & Gloven APC Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor* Ferris & Britton, APC Finch, Thornton & Baird, LLP Fischer & Van Thiel, LLP Fleischer & Ravreby Fragomen, Del Rey, Bernsen & Loewy, LLP* Frantz Law Group APLC Fredrickson, Mazeika & Grant, LLP* Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP* Grimm, Vranjes & Greer, LLP* Hahn Loeser & Parks, 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* 10+ years as 100 Percent Club

44 SAN DIEGO LAWYER July/August 2016

Johnson, Greene & Roberts LLP Kirby & McGuinn APC Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama | Brust LLP Kriger Law Firm Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc.* Lincoln Gustafson & Cercos LLP Littler Mendelson PC Lorber, Greenfield & Polito, LLP* Miller, Monson, Peshel, Polacek & Hoshaw* Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis Law Neil, Dymott, Frank, McFall & Trexler APLC Noonan Lance Boyer & Banach LLP Office of the San Diego City Attorney Olins Riviere Coates and Bagula, LLP Oliva & Fanning, ALC Parker Straus, LLP 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 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, Silverman & 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 White, Oliver & Amundson, APC Wilson Elser Moskowitz Edelman & Dicker LLP* Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP

Sustaining Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members.

PATRON MEMBERS Marc D. Adelman Jose S. Castillo Ezekiel E. Cortez William O. Dougherty James P. Frantz Van E. Haynie Rhonda J. Holmes Richard A. Huver Laura H. Miller 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 Edward V. Brennan Scott Carr Linda Cianciolo David B. Dugan Susan K. Fox Kenneth N. Greenfield Ronald Leigh Greenwald Ajay K. Gupta Karen A. Holmes 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 Ralph T. Santoro Jr. Stella Shvil

PHOTO GALLERY ANNUAL BENCHBAR-MEDIA EVENT Photos by J.T. MacMillan In June, judges, lawyers and the media gathered to discuss the lasting impacts of the O.J. Simpson case during "Eyewitnesses to Change: How the O.J. Simpson Case Altered How Media Covers the Courts."

Hon. Joan Weber

Linda Deutsch

Laurie Levenson

Wendy Patrick

Cindy Cesare

Nadir Ahmed

Srinivas Hanumadass

Hon. John Scherling, Hon. Kelly Mok

L-R: Laurie Levenson, Alara Chilton, Frederick Dudeck, Anna Romanskaya

July/August 2016 SAN DIEGO LAWYER 45

PHOTO GALLERY SUMMER SOCIAL Photos by J.T. MacMillan SDCBA members gathered for the Association's second annual Summer Social on the terraces of the Bar Center at 401 building on July 14. Thank you to event sponsor AHERN.

L-R: Nadir Ahmed, Hoori Khandani, Isabel Eustaquio

Davia Hayward, Darnell Donahue

Kristina Fretwell, Christopher Hicks

L-R: Paula Roach, Dana Shoffner, Erica Gardner, Erica Cortez

Jonah Toleno, Teodora Purcell

L-R: Jose Castillo, David Daren, Jeffrey Herbst Anne-Marie Rabago, Justine Wong

L-R: Frank Barone, Michele Kumaus, Robert Stall

WETSUITS INAUGURAL PADDLE OUT Photo by Jason de Alba Members of Wetsuits, the SDCBA's official surfing group, paddled out together for the first time at Pacific Beach on July 2. Learn more and join Wetsuits at www.sdcba.org/wetsuits.

ADVERTISERS INDEX ADR Services, Inc......................................... 2 AHERN Insurance........................................ 5 CaseyGerry .................................................... 3 First Republic Bank........................................ 6 Fragomen, Del Rey, Bernsen & Loewy, LLP.. 18 Gomez Trial Attorneys............................. 26 Huver Mediation......................................... 20 46 SAN DIEGO LAWYER July/August 2016

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Panish Shea & Boyle LLP...................................48 Pokorny Mediations.............................................34 San Diego County Bar Foundation ........42 Stanford | Ryan & Associates, APC............37 Todd Bulich Real Estate Company...........47 West Coast Resolution Group............. 41

We don’t just settle cases

WE TRY THEM & WIN BIG. Largest Verdict

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Largest Wrongful Death Verdict in Central District of California, U.S. District Court

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for Death of Child in Orange County Superior Court

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Referrals - It’s a matter of dollars and sense. The attorneys of Panish Shea & Boyle LLP have obtained some of the most significant verdicts and settlements in U.S. History - often setting records with their trial results. With more than fifteen 8-figure verdicts in the last 5 years, no other California firm wins this big as often as Panish Shea & Boyle LLP. Our presence on a case delivers maximum benefits and recovery, both to the client and the lawyer who refers the case. You’ll get the resources, experience and skills needed to win the most complex cases for individuals who have suffered injury from the wrongful acts of others. The firm handles third party cases and joint ventures with attorneys who want to stay more actively involved. Contact Panish Shea & Boyle LLP today to discuss how we may assist you.

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