TM
LAW SCHOOL’S LEGACY
HOW THE DECISION & PAYOFF HAS DIFFERED THROUGHOUT THE YEARS A ROUNDTABLE DISCUSSION
PLUS
Acting the Part: Attorneys Take Center Stage Lessons Learned from Letting Go A Mockup of the New Courtrooms
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Congratulations to our managing partner David S. Casey, Jr. for being named to the Consumer Attorneys of San Diego’s Trial Lawyer Hall of Fame and for his recognition by the L.A. Daily Journal as a “Top Plaintiff Attorney,” and as one of “100 Leading Lawyers in California.” With the dedication and commitment of the entire CaseyGerry team, we have helped resolve some of the region’s most high profile cases. Knowledge, experience and a commitment to justice have helped our dedicated legal professionals achieve outstanding results for nearly 70 years.
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CONTENTS
Page
Page
Page
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Departments
Features 19
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Acting the Part Local attorneys take center stage
A Story of Abandoned Stadiums If the Chargers move, what happens to Qualcomm?
By Stephanie Karnavas
By Jeremy Evans
23
Winning Isn't Everything Lessons learned from letting go By J. Daniel Holsenback
25
Roundtable: Law School's Legacy How the decision and payoff has differed throughout the years
Featuring Michelle Allison-Slaughter, Elidia Dostal, Randy Jones, Theodore Montgomery and Leah Strickland
34
A Trial Run for the New Courthouse This courtroom mockup in Barrio Logan provides an inside first-look at the new courthouse By Craig Benner
39
Point vs. Counterpoint, Part II The duty to defend has its limits
By Todd Haas and Bridget Moorhead
Follow San Diego Lawyer! sandiegolawyermagazine
@SDLmagazine
7
Why I Belong Get to know SDCBA member Rochelle Bioteau
17
Tips Advertising—strategy pays By Teresa Warren
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President's Feature Rewind and move foward
11
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Federal Court Anniversary Series The history of our district's bankruptcy courts
Deans USD's new Experiential Advocacy Practicum is off to a great start
By Hon. Laura Taylor
43
By Stephen Ferruolo
SDVLP Pro bono: do it for you
13
By Parisa Ijadi-Maghsoodi
By Bill Kammer
Distinctions
14
45
Technology Secrets to effective password protection
Ethics Tempted to share information about an ex-client? Think twice before you speak By Edward McIntyre
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Photo Gallery Colleagues gathered to discuss diversity and inclusion, and to support justice for all in San Diego
On the Cover: Law School's Legacy Roundtable Participants L-R: Michelle Allison-Slaughter, Elidia Dostal, Randy Jones, Theodore Montgomery and Leah Strickland Issue no. 6. 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 November/December 2016
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WHY I BELONG THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Rochelle Bioteau Squires, Sherman & Bioteau, LLP
Education: University of California, San Diego (undergrad); University of San Diego School of Law
Co-Editors Edward McIntyre Christine Pangan
Areas of practice: Business litigation, civil litigation, landlord tenant, entity formation, trusts and estates, probate, criminal defense
Editorial Board Michael Hernandez Todd Haas Stephanie Karnavas Erik Nelson David Seto Whitney Skala Christopher Todd Teresa Warren
Craig Benner Elizabeth Blust George Brewster Jr. Josh Bonnici Brody Burns Decker Cady Jeremy Evans Victoria Fuller Renée Galente
SAN DIEGO COUNTY BAR ASSOCIATION
Proudest career moment: Second chairing a federal criminal case where our client was accused of knowingly transporting, with intent to distribute, marijuana. Our client was a hard-working family man who took considerable time and care to earn his resident alien status. He had been strategically targeted as a blind mule and when I met him, his family and heard his story, I knew he was absolutely innocent. I worked the trial with my legal mentor, James Gleave, and after the first trial ended with a hung jury, the case was retried. Retrial ended in a unanimous not guilty verdict and when it was read, the client burst into tears—so did I. Helping someone who was so vulnerable and outnumbered economically and resource-wise, I was honored to have been a part of changing his and his family’s life.
Executive Director & Chief Executive Officer
Family: My parents, Dr. Daniel Strub and Caroline Collins; sister Paula Stone; niece Olivia Stone; and husband Olivier Bioteau
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Publications Editor
If I weren’t an attorney, I’d be a full-time advocate for Feeding San Diego. I started volunteering with this organization last year and cannot believe the quality of the individuals who work and volunteer their time and skills there. The best thing about being an attorney is being a source of comfort and relief to my clients and others who need help.
Jenna Little
Next vacation: Paso Robles to watch some of my wonderful equestrian friends compete in a show jumping competition.
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Hobbies: Riding and competing on my horse, and best friend, Andy. Favorite book: For escapism purposes, Charlotte Bronte’s Jane Eyre. For coping with life, I really enjoyed Dan Harris’ 10% Happier: How I Tamed the Voice in My Head, Reduced Stress Without Losing My Edge, and Found Self-Help That Actually Works—A True Story. Favorite musical artist and/or group: Bryan Ferry and Roxy Music. Favorite food: French, especially since my husband is the Executive Pastry Chef at the Lodge at Torrey Pines and before that, we owned and operated a small French Bistro in University Heights called Farm House Cafe. Why do you belong to the SDCBA? The best attribute about SDCBA is the listserve. It is such a wonderful resource to bounce ideas off of local colleagues, find a referral for matters I don’t take on and stay up on new cases/legislation, as well as to network. I try to read every post that comes through. What makes San Diego’s bar so special/unique? I believe it is the willingness to help fellow colleagues whether legal procedural or substantive issues, or simply to promote the needs of our clients. It is, overall, a collegial group.
November/December 2016 SAN DIEGO LAWYER 7
I generally hate clichés. But, I find myself using them all the time, especially with my kids. I have told my boys, time and again, that “hard work pays off,” and that the “whole is greater than the sum of its parts,” but we have all witnessed real world examples demonstrating how those statements are not always correct. Being the 2016 SDCBA President, however, has proven to me that some clichés absolutely are true. For instance, I know now, more than ever, that it truly does “take a village” to raise a child (or children, in my case). It seems a bit trite to say it, but without the support of my colleagues, friends and family, I do not think I could have survived – and thrived – this past year. Without the help of the individuals named below, and countless others, I would have found myself on the “sink” side of the popular adage, and I offer a sincere thanks to each and every SDCBA member for allowing me and the SDCBA to “swim” in 2016. When I “stepped up” to be the SDCBA President last December, I thanked my husband, my firm, my fellow board members, our fellow bar leaders and the SDCBA’s internal team, knowing that their support would be critical. What I did not know at the time is just how much each and every one of them, and each and every one of you would be contributing to the betterment of our profession and our community. From the bottom of my heart, thank you for all that you have taught me this year. Your passion, your dedication, your integrity, your diverse perspectives and your willingness to share, are truly what makes San Diego a great place to live and to practice law. I can say for sure that being president of the SDCBA is the most amazing volunteer job on the planet – and that is because of each and every one of you! Together, our successes are immeasurable. We have dedicated countless hours to community service, to speaking up against injustice and to educating one another and the public. We have worked hard to further civics education and to champion individuals and causes as professional advocates to the best of our abilities, all while remaining true to our community’s standards of civility and professionalism. Thank you for letting me share in your successes, and allowing
me to better understand what an engaged and dynamic legal community we have in San Diego. To the Board members whose terms end in 2016, Dan Bacal, Lizzette Herrera Castellanos, Andy Cook, Jason Evans and Richard Huver, thank you for leaving a lasting impact on the SDCBA and for your passionate service. You will all be missed! To SDCBA Executive Director and CEO, Ellen Miller-Sharp, thank you for your guidance, patience, leadership and friendship. I could not have done any of this without you. And, to the rest of the internal SDCBA team, especially SJ Kalian, Karen Korr, Sarah Harris and Phil Schneider, thank you for your expertise and your support. The SDCBA would not be as successful (or as fun) without your hard work and dedication! To my colleagues at Allen Matkins, we survived! Thanks for joining me on this journey, and for all that you have done to cover for me when needed. You truly are the best of the best! To my best friend, Jason Riley, thank you for “taking one for the team” time and time again. Thank you for your patience and your unwavering love and support. You know how much I appreciate it, even if I don’t always remember to say it. To Matt and Sam Riley, thank you for making me laugh when I need it the most, for the world’s best hugs, for all of your amazing and wonderful questions and, most important, for always being 100% you. I love you to infinity and beyond. And, once again, thanks to each and every member of the SDCBA for all that you do, this year and always. I know that I leave Loren Freestone, your 2017 SDCBA President, in great hands. Loren – you are going to be amazing! We are all here for you and can’t wait to see what next year brings. Take a deep breath and dive in!!
BY STEPHEN FERRUOLO
DEANS
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Providing a Progressive Practicum USD's new Experiential Advocacy Practicum is off to a great start he fate of the recommendations to require pre-admission competency training, originally made in September 2014 to the State Bar by the Task Force on Admissions Regulation and Reform (TFARR), remains in doubt. In May, the Admissions and Education Committee asked for comment on a proposal to reduce the units of practice-based experiential coursework from 15 to six, to align California with the new ABA standards, effective as of the current academic year, as part of a Phased and Scaled Recommendation Implementation (PSRI) plan for all the TFARR recommendations. Not surprisingly, both the Council of the ABA Section of Legal Education and Admissions to the Bar and the Deans Steering Committee of the Association of American Law Schools (AALS) were quick to express their support for the reduction of practical, skills-based training required for admission to the California Bar. At a meeting held in early August, former State Board president (and now Justice) Jon Streeter made a strong case for implementing, on a phased-in basis, the originally proposed 15-unit pre-admission requirement to be fulfilled during or after law school through a combination of experiential coursework, including clinics and approved externships, clerkships or apprenticeships. I am hardly alone among California law school deans in hoping that the State Bar will adopt the plan to phase in the 15-unit requirement and set the national standard for training lawyers for the demands of 21st-century legal practice. In the meantime, USD School of Law will continue to take the lead in expanding experiential learning and integrating practical skills training into the curriculum. Starting this fall, we have introduced an Experiential Advocacy Practicum as part of the required coursework for all firstyear students. This practicum has been designed to provide students with an
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Stephen Ferruolo
introduction of the two major areas of legal practice, litigation and business law. Focused on a fictional negligence case and a buy-sell transaction, respectively, each semester of the first-year curriculum now incorporates learning-by-doing skills exercises simulating the practice tasks that junior attorneys are expected to perform,
“The Experiential Advocacy Practicum is designed to give firstyear law students a real-life window into the daily experience of being a litigator and a transactional attorney.” including client interviews, negotiation, oral advocacy and the drafting of both formal legal documents, such as a transactional term sheet, and communications, such as email summaries of interviews, depositions and negotiations. To design and oversee the course, we have hired highly experienced San Diego practitioner Linda Lane, who has been named the Annsley and George Strong Professor in Residence for Trial Advocacy. Professor Lane spent 15 years as a product liability litigator, specializing in the defense of aviation cases, and was a litigation partner in the San Diego office of Morrison
& Foerster LLP. She currently advises clients on product liability issues and is a certified faculty member for the National Institute of Trial Advocacy. “The Experiential Advocacy Practicum is designed to give first-year law students a real-life window into the daily experience of being a litigator and a transactional attorney. The training will enable students to better understand differences in these types of law and give them practical experience and specific skills associated with both types of practice,” said Lane. To assist Professor Lane, each semester we will be hiring approximately 15 experienced practitioners as adjunct professors, who will work with our firstyear students, in teams and individually, to teach them the important practice skills that they will use throughout their careers. This semester, the faculty teaching litigation skills includes U.S. Attorneys from both the civil and criminal divisions; public defenders; civil litigators from national, mid-size and boutique firms; and highly regarded solo practitioners. The practicum is off to a great start. In week five of their first semester in law school, our students took a deposition; their final exercise this semester will be to make a closing argument. Spring semester will also include client interviews and negotiations as well as various written exercises, including drafting and negotiating a term sheet for the sale of a closely held company. This is what a law school can do to provide practical, hands-on training and enhance experiential learning. At USD School of Law, we are taking the lead because it is what our students deserve and because, as a practitioner, I know it is what the San Diego legal community demands. Stephen Ferruolo (lawdean@sandiego.edu) is Dean of the University of San Diego School of Law.
November/December 2016 SAN DIEGO LAWYER 11
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BY BILL KAMMER TECHNOLOGY
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Have You Been Pwned? Secrets to effective password protection
ow that I have your attention, let’s discuss some topics related to the safety of internet information and cybersecurity. The term “pwn” means to compromise or take control of another computer or application. The website www.haveibeenpwned.com hosts a collection of data derived from the numerous breaches of websites such as LinkedIn, Target and Yahoo. Those breaches usually involve a theft of user names, emails, passwords and sometimes additional information. If you visit that website and enter your personal information into the blanks, the site will tell you whether that information has ever been stolen from a website you may have used or registered on. If your info has ever been obtained in a breach, you can bet it’s for sale for pennies on the dark internet. We all have a tendency to reuse the same password, and you can immediately conclude that the hacked information included your login information that someone can now use to attempt a login to other sites at which you used the same credentials. Analysts are now debating “password fatigue.” That refers to human behavior that results when we are told to revise frequently our passwords and to make them more complex. An ordinary reaction is to vary one letter or another or add another letter to respond to the cautionary or mandatory prompt. Hackers know that would be an ordinary human response and will exploit it. The secret to an effective password is probably not so much its complexity as its length. Using dictionary passwords is no solution. Hackers can crack those within minutes, even seconds. Steve Gibson’s website contains substantial information about cybersecurity and password perfection. Test the strength of your favorite passwords by visiting
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www.grc.com/haystack.htm. If you add a few additional characters to your regular passwords, you can observe the rapid escalation of their strength. The federal government’s National Institute of Standards and Technology (NIST) regularly publishes studies and papers on issues of computer security. It is presently involved in a lively discussion of the use of passphrases rather than passwords. A passphrase is simply a series of dictionary words that is easily remembered. You wouldn’t want to use a particular known quotation, but
“If your info has ever been obtained in a breach, you can bet it’s for sale for pennies on the dark internet.” you can easily concoct a phrase that has no relation to reality. For instance, “whenIgrowupIwanttobeanastronaut.” Enter that passphrase into Gibson’s Haystack and observe the estimate that even a massive attack might take several hundred thousand trillion centuries to break it. Obviously the passphrase should not reflect components readily available to visitors to your Facebook page or your LinkedIn profile. However, it’s easy to construct an easily remembered but thoroughly fictitious passphrase. When developing a security strategy, consider revising your answers to security questions. You might be surprised by how much information about you is already available on the internet. You may not have posted it, but your friends or family members may have. Some good advice is to create answers that are not only false
but absurd. For instance, I was born in Kiev, my mother’s maiden name was Hubert Humphrey, or my high school was P.S. 92101. And certainly consider two-factor authentication that requires not only login credentials but the entry of a security code sent to your mobile device. There is a highly recommended solution to optimal password management: the utilization of a “password manager” such as LastPass or OnePass. After establishing an account, using it is simple. You merely log into the password manager and then launch any website you might want to visit or log onto. You have to create a master password and remember it, but after that you can utilize incredibly complex passwords that the manager will generate for you and remember in its vault. We all regularly use mobile devices for personal and client purposes. Those devices may automatically log onto unsecured public Wi-Fi networks. The only true way to protect the confidentiality of your personal or client information is to use a virtual private network (VPN). Some are free such as TunnelBear, and some are more robust and require an annual or lifetime subscription. All valid VPNs will protect the confidentiality of your banking or client information when utilizing the public Wi-Fi networks typically found at Starbucks, airports and hotels. None of these are perfect solutions, but a combination will go a long way toward protecting our personal information and the confidential information of our clients. Trust me, without assistance, we cannot outsmart the criminals and hackers. Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.
November/December 2016 SAN DIEGO LAWYER 13
E ETHICS
BY EDWARD McINT YRE
15 Minutes of Fame Tempted to share information about an ex-client? Think twice before you speak
“Sit. Or are you too excited?” He plopped into a chair. “Great news.”
“The duty of confidentiality covers all confidences and secrets of the client,” Macbeth said, spreading his hands wide.
CARTOON BY GEORGE BREWSTER JR.
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ric Logroll burst into Macbeth’s office. “Macbeth, gotta talk. Urgent.”
“Can it wait till I call Sarah and Duncan?” “Sure.” Logroll checked his iPhone, thumbs flying. With the team at the conference table, Macbeth gestured to Logroll. “You're on.” “Know that politician. Just lost a tight congressional race? Well, the New York Times is still digging into her background. Reporter called. Wants an interview. On the record. Imagine, the Times.” Logroll did a fist pump. “Wow, congrats!” said Duncan. Macbeth spoke. “Didn’t you represent her?” “Yeah. But last year.” Sarah interjected. “You’re going to talk to a reporter about her?” “Sure. I only represented her in that SEC investigation. I’ll be careful not to disclose anything she told me. You know. To get legal advice. Attorney-client privilege stuff.” Sarah glanced at Macbeth and cringed. Logroll looked at both of them. “Hey, I know what’s privileged. I came here to get some advice on how to handle the reporter. Macbeth, you get interviewed all the time.” “But never about clients or former clients.”
14 SAN DIEGO LAWYER November/December 2016
“So what’s the big deal? She’s a public figure. Can’t sue me for defamation. Hard as hell to prove malice.” “I wasn’t thinking of defamation. I was more concerned about ethics.” “Like I said, I know attorney-client privilege. Won’t go there.” “That may be the problem.” “What?” “Our duty of confidentiality. You know Rule 3-100 and the State Bar Act—” “B and P code section 6068(e)(1),” Sarah added. Macbeth continued. “Confidentiality covers a whole lot more than what’s within the attorney-client privilege.” “OK?” “Let’s start at the beginning. The attorney-client privilege only covers communications.” “Of course.” “It’s a testimonial privilege. With a few exceptions.” “Right.”
Sarah opened the copy of the Rules and State Bar Act Macbeth always kept in the center of his conference table. “A lawyer shall ‘maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets’ of the client. That’s 6068(e)(1).” Macbeth picked up the thread. “That means all information learned during the representation that could be embarrassing or detrimental to the client, whatever the source—” Logroll interrupted. “Wait a minute. What about stuff I got from other sources? What’s privileged about that?” “Likely nothing privileged, if not from your client. But, confidential—maybe. A very different story. Give me a hypothetical example. But don’t reveal anything confidential.” “Okay. Let’s just say I was handling an SEC investigation. A third party comes and tells me that my client had been sued for securities fraud. In a matter that went to a FINRA arbitration years ago. What about that?” “Learned during the representation?” “Yeah, but not from the client.” “I understand.” Macbeth looked around the table. “Confidential under 6068(e)(1).
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Anyone disagree?”
Logroll again. “Wow. Any exceptions?”
Happens a lot.”
Sarah and Duncan both shook their heads.
Macbeth nodded to Sarah. “To prevent a criminal act likely to result in death or substantial bodily injury.”
Sarah asked, “Do we assume your interview is on hold—permanently?
Logroll shook his head. “Won’t help my interview. Doubt she’s about to kill anyone.”
Logroll shrugged and pushed back his chair. “Thanks, Macbeth. Guys.”
Logroll almost exploded. “What? How?” “A client secret. Learned during the representation. Disclosure, embarrassing or detrimental to the client. The lawyer’s lips are sealed ‘at every peril to himself or herself.’ Forever.” “But someone could have dug into the FINRA records. Found out about it. Publicly available information—if you know where to look.” “Doesn’t matter. In fact the State Bar just came out with an excellent opinion that addresses precisely this issue.”
Macbeth spoke. “A client can give informed consent to disclosure of confidences or secrets. Asked your client?” “Are you kidding? Then she will kill someone. Me.”
“Nope, it wasn’t. Got her a private—” Macbeth held up his hand. “Stop. Say no more, please.
Macbeth added. “The duty could also be something neither written nor spoken.”
“Oh, yeah. This stuff’s hard.”
“Assume a lawyer asks a client a pointed question. The client’s reaction to the question—facial expression—is likely confidential.”
Editorial Note: The recent, comprehensive and excellent State Bar Formal Ethics Opinion 2016-195 is available at ethics.calbar.ca.gov.
“The fact that you represented her in an SEC investigation, unless very widely known, is itself confidential.”
Sarah spoke. “Formal Opinion 2016-195. On the State Bar website.”
“Like what?”
Logroll sighed. “’Afraid so.”
“Don’t worry. A lot of lawyers, and a number of judges in my experience, conflate the attorney-client privilege—with its exceptions and waiver doctrine—with the sweeping duty of confidentiality that has only the murder/mayhem exception.
Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and co-editor of San Diego Lawyer. No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
To get your case on the path to resolution, please contact Richard’s case manager Kathy Purcell at (619) 238-7282 or email kpurcell@westcoastresolution.com.
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TIPS
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Advertising: Strategy Pays Tips for advertising that makes cents
hirty years ago, the ability for lawyers to ethically advertise was new and controversial. Today, advertising is an accepted form of communication by most in the legal profession. But is it effective? The answer is yes and no. The key is knowing if it will be effective for your practice or firm.
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In fact, most attorneys do advertise, as websites and posts on social media channels such as LinkedIn are considered advertising under the rules governing legal advertising. However, most attorneys still think of advertising as running an ad in the paper, on TV, on a website or on a billboard … and for the purpose of this article, so do I.
Advertising That Works Suppose you have practiced for many years at a big firm and now you and others have left to start your own boutique practice. You want to get the word out about your new firm, including the name, area(s) of practice and who the lawyers are—and advertising is a good vehicle to do so. The same is true for firms expanding into the San Diego market. When a law firm hires a high-visibility lateral, advertising is a great way to promote that the firm is growing and attracting top talent. Advertising can also be very beneficial if a law firm decides to expand its practice areas or locations. If you’ve won an award or received some type of special recognition, an ad can help increase the awareness of the honor. Firms and sole practitioners that provide services directly to individuals or families can also very much benefit from advertising. Such services would include DUI representation, bankruptcy, worker’s
compensation, divorce, class actions and many more. Just watch late-night TV and you’ll see a dozen of these advertisements … because it works.
Advertising That Doesn’t Work Advertising to the masses when your target client is a niche isn’t cost-effective and probably won’t lead to new clients. Neither will selecting publications that don’t cater to your target audience. If you need to market your practice on an ongoing basis, placing ads infrequently won’t work. Ads that have too much or too little content or aren’t attractive are a waste of your money. And speaking of your money, advertising done well is typically expensive, so if you don’t have a hefty budget to advertise, don’t do it.
How to Make Advertising Work What’s the end game? Knowing what you want to gain from advertising and then applying a timeline to your plan is crucial. Do you want your advertising to establish name recognition or bring in new clients?
The former might be a short-term run while the latter would require ongoing advertising. Short-run advertising is about making a big, initial splash and then implementing other marketing tactics while leveraging the awareness your advertising initially created. Long-term advertising takes a slow, steady approach. Who’s your target? Analyze the targets of your ad and focus on where they will see it. Look at readership of a publication or the demographics of a website. Don’t purchase an ad just because the website has a high volume of visitors or the publication has many readers or is cheap. Advertising that casts too wide a net catches very few clients and is certainly not cost-effective, even if it looks like a “good value.” What is your marketing mix? Advertising is just one of many tactics you should be using. Don’t look at your advertising as an isolated strategy. It should be well-coordinated in terms of consistent messaging and timeliness with all of your other marketing activities.
Is Your Ad a Winner?
“Don’t look at your advertising as an isolated strategy. It should be wellcoordinated in terms of consistent messaging and timeliness with all of your other marketing activities.”
Don’t try to create your ad yourself. Seek professional help with copy and design. There is no point in advertising if your ad is unclear, lacking critical information, not motivating and so on. Don’t run the same ad for too long. When the consumer sees the same ad over and over, they tune it out. If you find an element of your ad is working, then try using that same element in a different way. (The Geico gecko is a good example.) Teresa Warren (twarren@tw2marketing. com) is president of TW2 Marketing. November/December 2016 SAN DIEGO LAWYER 17
AC T I NG T H E PA R T
Local attorneys take center stage By Stephanie Karnavas
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Tom Deak You Can’t Take It With You Glass Menagerie The Weir The Clean House
n a typical sunny San Diego day on the patio of one of the many Italian eateries on India Street, my conversation with veteran actor and attorney Tom Deak flows as easily as the cool glass of chardonnay I was sipping—in my mind that it is. It was a work day after all. Tom is the kind of guy you feel like you’ve known forever. He’s a good conversationalist with an easy genuine smile, and though I’ve never seen him on stage, it’s not hard to imagine him captivating an audience. Born in Pasadena, Tom was transplanted to Alaska at the age of 3 so his father could pursue a career in remote medicine. A self-described theatrical child, Tom didn’t start pursuing theater formally until high school when he caught the drama bug after watching a performance of You Can’t Take It With You. Tom quickly became a star in his Portland high school’s theater group and went on to graduate from the University of Washington with a B.A. in drama. Though he aimed for a full-time career in the arts for a short stint, he could never quite escape the
contemplative words of one drama professor: “Sometimes you think to yourself, I wish I had a couch.” So law school it was. At the University of Oregon, theater remained Tom’s part-time passion, and he still fondly recalls a starring role in the Glass Menagerie as one of his favorites. After graduating, Tom and his now-wife moved to San Diego where Tom has built a legal career and a lovely family while also managing to maintain a low profile on the local acting circuit. Tom’s primary playhouse in San Diego has been the New Village Arts Theatre in Carlsbad, where he’s appeared in many performances, most recently The Weir and The Clean House. While Tom has played many roles in our theater community over the years—Navy ship captain, doctor, salty Irishman, ghost (or Darth Vader in the young eyes of his son)—of late, Tom is mostly playing father to two teenagers, and counsel for the County, where for now, his busy trial calendar is feeding his flair for the dramatic. Tom’s advice to aspiring lawyer actors: “If you have the time and desire, absolutely do it!”
November/December 2016 SAN DIEGO LAWYER 19
Jeff Carver Rope Fast Karma Eve and the Bad Apples
Matthew Speredelozzi Heaven Can Wait You Can’t Take It With You Company
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fter a hectic morning in court, as I rush into the iconic Dobson’s on Broadway, I feel a bit as if I’ve stepped onto a movie set. I turn to the host and announce I’m there to meet Jeff Carver, and as if on cue, Jeff appears, leading me back to his “office”—a cubbyhole on the second floor with just enough space for a white-linen table for two. Over the next hour and lots of laughs, Jeff regales me with reflections of his storied life. Jeff began his legal career in 1977 as a volunteer lawyer at Legal Aid where he tried and won his first case on his very first afternoon of work—a defining victory that, from then on, quelled any nerves he had about performing in court. Over the years, Jeff has developed his own formulas and tricks for trials, and admittedly took some risks that didn’t always work out, but, in his words, “you’ve got to let yourself go a bit in order to be creative.” A consummate entertainer, Jeff has been playing in rock bands since he was just a boy in the 60s, and is well-known here in San Diego for his performances (most recently with the band Fast Karma, and earlier, Eve and the Bad Apples) that are part musical and part improvised comedy show that incorporates the audience into the act.
After numerous failed auditions for plays, movies and television, including one for a role as a retired Navy JAG Lieutenant Commander— which he happens to be—it appeared that Jeff was destined to lead a life of criminal defense lawyer by day and master of ceremonies, musician and ordained minister by night. That was until he received a call from a director in New York City. “We need a guy your age, who can play drums, harmonica, who can sing and who can play three minor supporting roles in a play,” the director said on the phone. “So this is the first time I ever got a part, and they came to me,” Jeff quipped. The irony. And how did this NYC director find Jeff ? A referral from a client Jeff represented 28 years earlier. And the rest, as they say, is history. Jeff made his debut this past March at the Tenth Avenue Arts Center in Rope—a musical western featuring a hangman and his wife as the protagonists—and it was a widely heralded success. Jeff’s Cliff’s Notes on the experience: “Fantastic. Super fun. Hard work, with 10-hour rehearsals, but a great time.” And lessons learned: “If you warm up in the alley, make sure the exit ain’t locked.”
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also feels that being a trial attorney has made him a better actor: “It shifted the dynamic of my ability to handle my nerves before a performance because nobody’s going to jail if I miss a line.” As to the almost trite comparison to the practice of law to acting, while Matt agrees there are complementary skills required of the two, he sees many more differences than similarities. He explains, “There is a realness to [a trial] that is unmistakable. The consequences are absolutely real to your clients. The experience is real-time, you’re not rehearsing, everything you say is on the record and it’s just really in the moment, real. There’s not a performance to it. Acting is not that at all. There’s a plan with acting. It’s supposed to go a certain way. There’s a script. You rehearse the same way over and over again. You know what to expect. You’ve choreographed every moment.” Matt advises that rehearsal schedules can be grueling and will require a lot of advanced planning for any attorney who is considering a foray into the theater, but for all his impressive training, he believes acting is “a very humanizing experience and it’s a very natural thing to do. It’s something that anybody can do. It doesn’t matter if you’re an attorney or an NFL quarterback [like Terry Bradshaw]—you can do it.”
rom the time he was a child, Matthew Speredelozzi always told people he wanted to be a lawyer or an actor when he grew up. Starting out, it seemed like Matt was on track to become the latter. He starred in his first play when he was just 8 years old, and from ages 11 to 18 he attended the Capachione School of Performing Arts (which boasts an impressive list of professional actors and playwrights as alumni) where he received intense conservatory-level acting classes, dance and voice lessons. At certain points during school, Matt was performing in 3 to 4 plays a week. About midway through a theater major in college, Matt decided he wanted to pursue more of a “sure thing” and shifted his sights to a career as a trial lawyer. Before he hung his own shingle as a criminal defense lawyer in 2008, Matt worked as both an intern at the Public Defender’s office and as a law clerk at the District Attorney’s office. Though his busy work schedule only permits him to fit in one play a year these days, Matt has become a known quantity in the San Diego theater scene. He rarely auditions, but rather gets called, often for starring roles, and has appeared as the lead in plays such as Heaven Can Wait, You Can’t Take It With You, and most recently this past summer, Company, at Vanguard, a community theater in Point Loma. While Matt agrees that being an actor has probably made him a better trial attorney, he
Stephanie Karnavas (stephanie.karnavas@sdcounty.ca.gov) is a senior deputy with the Office of County Counsel.
How to Win Every Moment (and Lose Yourself in the Process) By J. Daniel Holsenback All I do is win win win no matter what Got money on my mind I can never get enough And every time I step up in the buildin’ Everybody hands go up And they stay there DJ Khaled, All I Do Is Win
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or as long as I can remember, those who have known me have described me as hyper-competitive. And for as long as I can remember, the sole evidence I could muster to rebut the charge was that I did not try to win the family game of Monopoly. I used to be a trial lawyer. My mindset, spoken as a mantra, was: “There is a winner and a loser in every case and I can never lose.” Or as DJ Khaled puts it, “All I do is win win win no matter what.” No lawyer can win every case. But if you set that as a requirement, and have some skill, you will win more than you lose and maybe achieve what I used to describe as “a statistically improbable track record of success.” But because the standard of performance I held myself to was a rapper’s fantasy, when I lost, it wasn’t just a loss, it was a destruction of my identity. I did not just try to win cases. I realize now that since I was a boy I saw life as a win-lose game that had to be won, living most of the time with my fight-or-flight response in high gear. With this win-at-all-costs mindset, it is no surprise that the standards I set for my work, my athletic performance, my relationships, my everything, were impossibly high and did not allow for the enormously important fact that the outcome of most things in life is beyond my control.
The standards I set for my work, my everything, were impossibly high and did not allow for the enormously important fact that the outcome of most things in life is beyond my control. And it is a really tiring way to go through life. So what is the way out? The way out for me was loss and pain. I had this illusion of control as a trial lawyer, but life events, like the loss of a loved one and the end of a marriage forced me to confront my lack of control—and my destructive need for it. I retired as a trial lawyer, spent a year on sabbatical studying something other than law and got to know myself: the good, the bad and the ugly.
Today, I am building a mediation practice from the ground up. The old me would have expected instant, full-tilt success, that I would “step up in the buildin’ [and] everybody hands go up and they stay there.” The truth is, expected rates of business growth apply to me (as do the laws of the physical universe and many other things it took me far too long to figure out). I am very much enjoying a new career where I do not have to win every case. But it is bigger than that. My goal is to have a life where I don’t have to win every moment, and thus, a life where balance, selfacceptance and compassion can take root and flourish; a life that is other-centered rather than self-centered. When I walk into the gym today, my automatic response will be to see who is lifting how much weight: to assess the competition in the upcoming life-or-death struggle with combatants who don’t even know they are participating. As the saying goes, “Progress, not perfection.” J. Daniel Holsenback (dholsenback@adrservices.org) is a neutral with ADR Services, Inc.
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ABOUT THE PANELISTS From left to right, front to back Randy Jones graduated from the University of North Carolina School of Law in 1982. He is an attorney with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
LAW SCHOOL'S LEGACY How the decision and payoff has differed throughout the years
Leah Strickland graduated from William & Mary Law School in 2007. She is an attorney with Solomon Ward Seidenwurm & Smith, LLP.
Featuring Michelle Allison-Slaughter, Elidia Dostal, Randy Jones, Theodore Montgomery and Leah Strickland Photos by Alicia Countryman
Theodore Montgomery graduated from Thomas Jefferson School of Law in 2016. He is working as a law clerk awaiting California State Bar exam results.
In a recent study exploring the value of a legal education in terms of experiences and well-being, less than half of 7,000 law school alumni surveyed in the Southeast “strongly agreed” they would still go to law school if they could do it again (only 37% for those graduating since 2000).1 What about San Diego attorneys? From a 2016 local graduate to an attorney in practice for over 30 years, San Diego Lawyer brought together a diverse panel representing different backgrounds, law school locations, years in practice and firm sizes for their insights on why they went and how it panned out for them. Michelle Allison-Slaughter (’02) moderated the discussion.
Elidia Dostal graduated from Yale Law School in 2002. She is a solo practitioner. Michelle Allison-Slaughter graduated from Northeastern University in 2002. She is Dean of Admissions at Thomas Jefferson School of Law.
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http://blogs.wsj.com/law/2016/03/24/recent-law-grads-dont-think-degree-was-worth-the-cost-survey/) November/December 2016 SAN DIEGO LAWYER 25
LAW SCHOOL'S LEGACY: A ROUNDTABLE DISCUSSION Michelle Allison-Slaughter (MAS): How did you come up with the idea of going to law school? Theodore Montgomery (TM): I guess my [story] is kind of cliché. In high school I joined the mock trial team so I could spend time with a girl that I liked. And I enjoyed working with the practicing attorneys who were our coaches and the process. I even did it while I was in college at Jackson State in my junior and senior year. At that point, I decided I wanted to go to law school and so it just continued to feed the curiosity. Elidia Dostal (ED): As far back as I can remember I always thought I would be a lawyer. But when I was in high school, my older sister went to career day and she said, “This lawyer came, and he was miserable. You should not be a lawyer.” And so that, unfortunately, stopped me in my tracks. I became an accounting major and was working for the franchise tax board as a state tax auditor, and a friend of mine was working during the day and going to McGeorge at night and he loved it. And I was like, “How do I do that?” He brought me the LSAT information and I took it, did very well, and I was planning on going to McGeorge and working during the day. Well a friend of mine, her sister was working for the U.S. Attorney’s Office in Florida. She was also Latina, and when she found out I was planning to go to McGeorge, she called me and said, “You need to apply to the Ivy Leagues. You will get in. You’re smart. You’re Latina. We need Latinas in the law. You will be a role model.” And it was so great because she convinced me. I applied, got into Yale and it changed my life.
Elidia Dostal
Aim high. Don’t limit yourself. And don't make assumptions.
choosing a school MAS: That’s amazing. That actually leads us to the next part: What influenced you to go to the specific law school that you chose? ED: When I was applying, Yale was the school I wanted to go to. It had the smallest class size out of the Ivy Leagues and was ranked the highest, and it seemed to have a philosophy that I really agreed with. They don’t have grades; they aren’t about competition. It’s more about doing your best.
Leah Strickland
MAS: There are very few schools—I think four or five in the country—that don’t do grades. Randy Jones (RJ): I wish I’d known that! I really had my heart set on UCLA. I always wanted to go to California and I thought this was a way to get out there. But at the very last moment I decided to stay home. You know, the family thing—I’m the youngest of 10. And you can’t beat the University of North Carolina (UNC), Chapel Hill and all their programs. And thinking I might practice law in North Carolina, I decided to go there.
After the recession, you really had to find the opportunities—they weren’t going to find you. You have to put yourself out there and be bold. 26 SAN DIEGO LAWYER November/December 2016
Leah Strickland (LS): I got waitlisted at Columbia. I also got into William & Mary and was offered a scholarship. So I was like, “Columbia—wait for it; or William & Mary—go now.” And I decided to go to William & Mary. It was really good because I had the scholarship—it was an assistanceship and I worked with some professors one-on-one as a part of that. They have a very unique perspective at William & Mary—they talk about
LAW SCHOOL'S LEGACY: A ROUNDTABLE DISCUSSION the “Citizen Lawyer” and giving back to the community. They emphasize that in their education and I really liked that, so I decided to go there. MAS: But the finances helped your decision? LS: Yes. RJ: It’s interesting, because Elidia and Leah, you mentioned the Ivys. I didn’t know anything about an Ivy League school—that wasn’t even in my vernacular. I didn’t know the difference between other law schools and what they had. And I think it’s cool that we’re in a position now that we can give people more information. And I think kids today really have an opportunity to do some informed shopping when they go to law school. Michelle Allison-Slaughter
nurturing student needs MAS: Each school has something, hopefully, to offer their students to bring the best of them out and to nurture them where they are. Randy, did you feel like your whole-being was nurtured? Do you feel like you were taken care of at your school? RJ: Yes, I thought our professors cared about us. One of the things that the UNC taught us and had us practice was leadership—being leaders in the community and giving back through leadership. And I think that helped propel me to a lot of leadership positions that I subsequently got involved in after law school.
Michelle Allison-Slaughter
It’s encouraging for me to hear stories of successes that remind us that it still matters—this profession still matters.
TM: One of the most striking things with Thomas Jefferson was how accessible the [professors] made themselves. Because with me still trying to “figure it out” as a law student, that gave me a level of confidence that I feel I might not have had if I was in an environment that did not provide that. And I think the school does a good job of trying to funnel students into the legal community in San Diego while they’re in school.
lessons learned MAS: What did you do well in law school that you would say: "I'd do this again." And what did you not do well or not take advantage of? RJ: Ask questions. Professors and teachers are there to teach you. Their job is to help you learn the subject matter, and if you’re not getting it, then part of that’s on them, and part of it is on you to let them know.
Randy Jones
We’re in a position now that we can give people more information. And kids today have an opportunity to do some informed shopping when they go to law school.
ED: Aim high. Don’t limit yourself. And when I got in to law school, I wondered, “I’m going to be the only person from a workingclass family, everyone’s going to be rich.” And it was actually very diverse. So I had this whole idea that was completely wrong—so my advice would also be, “Don’t make assumptions.” I would’ve also engaged more with professors. I think you get a better understanding and you make connections. I didn’t plan to be a clerk, so I didn’t need those recommendations, but if you want to do a clerkship, it’s good to have professors who know you. November/December 2016 SAN DIEGO LAWYER 27
LAW SCHOOL'S LEGACY: A ROUNDTABLE DISCUSSION ED: Yes, definitely. I graduated in 2002. That was still during the boom, so there were lots of legal jobs. RJ: I graduated in ’82. I don’t know if there were good jobs or bad jobs, but there were jobs available. LS: I graduated in ’07, which was at the very tail-end of boom times, so there were jobs to be had—a lot of good ones. That quickly changed right after I started working. When I came out to California [from Washington, D.C.] I found that I had to be much more “scrappy” than when I was in law school. When I was going to law school, we had people coming to us … MAS: On-campus recruiting … Theodore Montgomery
The job search starts with law school. That’s a non-negotiable that you have to start that intentional thinking about your profession while you’re in school. LS: I didn’t even know about clerkships until I had pretty much graduated and then I realized how important they were and it was too late. So that’s what I would’ve done better—find out about that opportunity earlier so that I could’ve taken part in it, but I just had no clue. But I certainly engaged with the professors. TM: Delayed gratification is so key because if you just take time and literally study until you cannot, and do the best job you can in law school, it’s going to set you up for a better situation once you’re out. And bring someone along with you. Personally, if I see another black law student, I am going to be a resource to them. I’ll be a resource for anyone who asks me for help, but there’s something about if I see a black law student—they don’t even have to say something to me—I make it my duty to be a resource for them.
jobs after graduation MAS: A pilot study released earlier this year reported that 70 percent of respondents who graduated during the 1960s said that they had good jobs at graduation. That percentage has declined every decade to only now 38 percent of law students who graduated from 2000 to 2015. Do you feel the numbers reflect the experience of your class, and do you feel as though when you graduated there were good jobs?
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LS: Right. They had job fairs—that’s how I got my two internships out in California. I didn’t have to do that much to find that work. Whereas after the recession, you really had to find the opportunities—they weren’t going to find you. So in Richardson terms of “scrappy,” you justTim have to put yourself out there and be bold. You can’t be kind of a shy flower. RJ: You have to go get it. MAS: Theo, now that you’re in the market that people are saying is notorious for not being that good, what do you think it’s like? TM: It’s definitely dissipated. It’s tough. It’s not the easiest market to come into once you’ve graduated and think, “I’m good.” But I do feel as long as you are proactive, and you are very intentional about trying to find a job, you will get a job, and you will likely get a very good one. Now what that means for different people may change. For me, a good job is one where I don’t have to worry about paying my bills and I’m also doing the job of an attorney. Also, the job search does start with law school. I think that’s a non-negotiable that you have to start that intentional thinking about your profession and what job you want to have, while you’re in school. MAS: Do you feel that your classmates have that same mindset, in general? And do you feel that your circle has that same mindset? TM: I feel that generally, people in my generation tend to not put as much of an emphasis on perseverance, on tenacity and just on hard work. When people do understand those important concepts, it kind of makes it a little bit easier because you will stand out more when you’re not afraid to say, “I’m going to apply for this, this and this, while I’m in school. If I get something, I get something. I’m going to have my body of work while I’m in school reflect that I was a serious student.”
LAW SCHOOL'S LEGACY: A ROUNDTABLE DISCUSSION motivating others MAS: Do you feel like you’ve been a role model? Has your career path made a difference to someone else who is not a client? RJ: Without a doubt, yes. And that fuels me, to know that people look up to me and that they care about what I think.
RJ: One of my favorite quotes is from Charles Hamilton Houston. It says that “lawyers are either social engineers or parasites on society.” And I like to think that I’m a social engineer. That’s what going to law school and having a law degree has given me—this ability to look at the law and use it for the betterment of our country, our communities and social change.
RJ: I think everywhere. In my family I’m the youngest of 10 and I’m the go-to person. But at the same time, sometimes I become burdened by that to a certain degree. Because it would be great to feel like I could have someone I could go to—but I’m not in that space for long. I snap out of it. People tell me all the time that they appreciate me, and that makes it all worth it.
LS: I like being in court, honestly. I like working with other people to figure out problems and come up with creative solutions. A lot of the work that I do ends up in resolving cases as quickly as possible because that’s in the best interest for everybody. If you lose sight of what’s in the best interest for your client, that’s where people go wrong. I think that I’m going to be a lawyer for the betterment of society by just focusing on what’s in the best interest of the client and trying to find out a way of getting there.
LS: I was the first woman on my mom’s side to graduate high school, and that includes my older sister. She dropped out of high school and got her GED. After I went through college, she started attending college, and she graduated. I’m pretty sure that was because I went to college. I think it’s so important to have someone within your family or friends who you can look up to and say, “I can do that. That person achieved that and we’re similar.”
TM: Coming from my perspective, my biggest thing is don’t feel like this world is too small for you, or like you’re too small for this world. Whatever your wildest dreams are—as long as they aren’t to the detriment of your fellow man—just go after them. You will be so much more fulfilled in your life and your spirit if you do so. And understand that as different as we are, we’re all the same. Try to keep that in mind next time you have to deal with a conflict with another person.
MAS: Is this in the community, church?
benefits and advice MAS: What has being a lawyer ultimately done for you, and what would you pass on to the next person?
ED: We have so many opportunities as attorneys to help people. Whether you’re doing the front-end like me with compliance and transactions and helping people get to the deal, or you’re pursuing justice through law suits—they’re both equally important to our society. MAS: I appreciate the opportunity to talk with you all. It’s always good for me to stay encouraged because we’re often times speaking with a diverse set of students—multiracial; different nationalities and genders; from humble beginnings and affluent beginnings—but who are really trying to make their way in the law and in their career. And there’s not really one path. It’s encouraging for me to hear stories of successes that remind us that it still matters. This profession still matters—each person in their own right and what you do for your work, but then what you do in your community matters as well. Thank you for that. This article does not cover the discussion in full—it is abstracted, edited and condensed to provide highlights.
Read San Diego Lawyer Online! Access the digital edition at www.sdcba.org/SDLdigital November/December 2016 SAN DIEGO LAWYER 29
A Story of Abandoned Stadiums By Jeremy M. Evans
As this November brought many ballot measures for San Diegans to consider, we wander into the “What if?” If Measure C passed and San Diego built a new stadium, what would happen to the existing one? From The Dome to the Colosseum, San Diego Lawyer takes a trip around the world and through history for a look at how stadiums spend their retirement. Tis the Season. This political season incites thoughts of abandoned stadiums. Measure C was on the ballot—a 4 percent tax hike on local hotels, essentially paid for by the tourists who stay in them. It failed. If it had passed, the tax revenue, along with team and league contributions, would have been used to build the San Diego Chargers’ new home in the East Village of downtown San Diego, where it would neighbor the Padres’ Petco Park. Then—and still possibly now—Qualcomm Stadium (“Qualcomm” or “the Q”), current home of the Chargers, will be without a National Football League (NFL) team. Chargers owner Dean Spanos has yet to announce whether he will move the team to another city or consider alternatives for a new stadium. Either way, this could be the last season the Chargers play at the Q. If the city and Spanos eventually agree on a new stadium deal, the San Diego State University Aztec football team may still play at the Q, but most likely the Holiday and Poinsettia college bowl games
played at Qualcomm will move to the new stadium. A newer venue could also play much better for attendance and for recruiting future college football playoff and national championship games. The Qualcomm venue is, by any standard, in bad shape and unfit for a professional or even a college team. In fact, Qualcomm is too big of a venue in terms of capacity for Aztec football. Whether the Aztecs would also try to play in a new stadium is still unknown. If the Aztecs leave and are allowed to play elsewhere in San Diego, the Q will, except for outside events, become an abandoned stadium. They will be the third team to leave Qualcomm, following the Chargers and the Padres who began playing at Petco Park in 2004 after 34 seasons at the Q from 1969 to 2003. Interestingly, before the Padres played at Qualcomm, Lane Field was their home. Located on the corner of Broadway and Pacific Coast Highway, the Pacific Coast League Padres played there from 1936 to 1957. However, Lane Field was made a parking lot in the 1960s and it is now home to the SpringHill Suites & Residence Inn San Diego Downtown/Bayfront and a 2-acre park.
“ON TO CINCINNATI,” WAIT WE MEAN TO LOS ANGELES, SAN DIEGO AND ST. LOUIS Channeling our inner Bill Belichick, remember when the Los Angeles Rams left for St. Louis and then came back to Los Angeles? Well, when the now-Los Angeles Rams and their owner Stan
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http://www.latimes.com/sports/la-sp-nfl-rams-financing-20160120-story.html
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Kroenke made the move in 2015-16 to Los Angeles, they brokered a deal to level the Hollywood Park Racetrack in place of the new privately financed $2.6-3.01 billion City of Champions Stadium.
Once built, the stadium will be the most expensive sports venue in the world. Directly across the street from the new venue is The Forum, which the Los Angeles Kings abandoned in 1999 along with the Los Angeles Clippers for the Staples Center in downtown LA. Yours truly once saw a Bob Seger concert in The Forum, but professional sports are long gone. The Los Angeles Clippers, who were once the San Diego Clippers, played in the Los Angeles Memorial Sports Arena after leaving the San Diego Sports Arena (now the Valley View Casino Center), and so did a host of other professional and collegiate basketball, hockey and soccer teams before moving to new venues, specifically Pauley Pavilion (UCLA), the Galen Center (USC) and the Staples Center. After years of absence, the second-year San Diego Gulls of the American Hockey League now play in the Valley View Casino Center. Back to St. Louis for a moment: When the Rams franchise left Missouri for Los Angeles, they also left The Dome at America’s Center or “The Dome,” formerly known as the Edward Jones Dome.
The stadium, previously known as the Trans World Dome from 1995 to 2001, was constructed to lure an NFL team back to St. Louis (specifically the Los Angeles Rams in 1993-94) and to serve as a convention center. With the Rams gone, The Dome is now an extension to the convention center in downtown St. Louis, but hosts no professional or collegiate sports. Even though the Rams left town, the bill was left on the proverbial table, a “dine and dash” so to speak, as the citizens of St. Louis still owe $100 million in bonds to pay off the cost of the stadium.2 In similar fashion, San Diego citizens also owe $50 million in stadium debt that the Chargers 2016 exit fee of roughly $15.2 million would not cover. The City of San Diego would also pay for operation and maintenance costs, as well as disability (ADA) litigation fees related to the Q—all minus $3 million in annual concession revenue paid by the Chargers, which some opine is a wash when added all together.3 Nonetheless, abandoned stadiums are nothing new to U.S. or even world history.
A TRIP TO THE ROMAN EMPIRE some have become tourist attractions and others just left alone, standing the test of time. These once iconic structures can be found in Libya, Tunisia, Italy, France and England, among other places.5 Ancient Greece6/7 and the modern United States8 are no different and have much of the same, except in the U.S. our stadiums are abandoned racetracks, baseball diamonds and other sporting arenas. Out with the old and in with the new, as the saying goes. We must progress and advance through time.
If we remember the Romans for two things, it would be their representative style of government and stadiums/amphitheaters. Much like our culture today, we both bring a representative style of government and big beautiful stadiums for sporting and entertainment events to the table. Arguably the most famous stadium in the world, the Colosseum (80 A.D.), once held 50,000 spectators and is today visited annually by 4 million tourists.4 Beyond the Colosseum, many more stadiums and amphitheaters have been abandoned,
HOW ABOUT OLYMPIC STADIUMS? Possibly the most abandoned9 of all stadiums and structures in the world, and rightfully so, are Olympic stadiums, as the Olympics are held in a different city and country every four years. We could cover a lifetime on abandoned Olympic stadiums that are now tourist attractions or grass-filled infields and stands. From the first Olympic Games in 776 B.C. in ancient Greece, to the Summer Olympic Games in Athens in 1896,10 to the Summer Olympic Games in Rio de Janeiro in 2016, one common slab of stone, marble and concrete binds all structures: big, beautiful, expensive and little-tohttp://www.huffingtonpost.com/entry/rams-los-angeles-st-louis-taxpayers_ us_5696955ee4b0778f46f7c330 3 http://www.voiceofsandiego.org/topics/government/without-the-chargers-qualcomm-stadium-willstill-be-a-money-pit/ 4 http://www.history.com/topics/ancient-history/colosseum 5 http://www.touropia.com/roman-amphitheaters/ 2
no-use following the exodus. However, not all is lost. The Panathenaic Stadium in Athens, used in the 1896 Summer Olympic Games, is the only stadium in the world built entirely of marble and is a great tourist attraction to this day. Showing its longevity, the stadium was built on the site of a racecourse built in 330 B.C., which was rebuilt entirely of marble in 144 A.D. and had a capacity of 50,000 seats. The stadium was excavated in 1869 and hosted the Zappas Olympics in 1870 and 1875. After some refurbishing, it hosted the first modern-day http://www.huffingtonpost.com/2014/10/31/abandoned-sports-venues-photos_n_5738134.html http://googlesightseeing.com/2011/11/abandoned-stadiums-of-europe-south-america-and-africa/ 8 http://googlesightseeing.com/2011/12/abandoned-stadiums-of-the-united-states/ 9 http://www.popularmechanics.com/adventure/sports/g109/12-forgotten-olympic-venues-fallen-intodisrepair/?slide=1 10 https://www.olympic.org/athens-1896 November/December 2016 SAN DIEGO LAWYER 31 6 7
Olympics in 1896 and then served as a venue for the 2004 Summer Olympic Games in Athens, Greece. In the end, the Panathenaic Stadium in Athens may be the only stadium in world history to be used in four different centuries and spanning 2,346 years. Not yet quite as impressive as the Panathenaic Stadium in Athens in terms of reuse over centuries, the Bird’s Nest and the Beijing National Aquatics Center (“Water Cube”), built and used for the 2008 Summer Olympic Games in Beijing, will be reused by the country for the 2022 Winter Olympic Games.11 Otherwise, the
structures are currently profit-making tourist attractions. In South Korea, Jamsil Baseball Stadium12 was built for the 1988 Summer Olympic Games in Seoul, South Korea, but is now utilized as the home of the LG Twins and Doosan Bears teams of the Korean Baseball Organization. The Winter 2018 Olympic Games return to South Korea in PyeongChang, but as baseball and skiing are not a great match, the Jamsil Baseball Stadium will be left untouched by snow.13
WHAT MAY THE FUTURE HOLD The cities of Milwaukee, Las Vegas and potentially Los Angeles (should they be selected as the host for the 2024 Summer Olympic Games), all have plans to build stadiums with mixed use of taxpayer dollars, tax hikes, bonds, private financing, loans and league contributions. The 2019 Beach Games in San Diego may also bring additional venues to the county. Altogether, abandoned http://www.theblaze.com/stories/2012/07/13/decrepit-four-years-after-hosting-the-beijing-olympicsthis-is-what-chinas-40b-investment-looks-like/
11
stadiums are being reused, rebuilt or torn down to build something better or newer. Other times, the stadiums are abandoned and left to history, and our memories. Jeremy Evans (jeremy@csllegal.com) is managing attorney with California Sports Lawyer. 12 13
http://www.baseballjourneyman.com/2010/10/02/baseball-stadiums-korea/ https://www.olympic.org/pyeongchang-2018
DOUG BARKER , an accomplished mediator, draws upon his years of experience as both a litigator and mediator in the following areas: • Commercial disputes
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• 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
T A TRIAL RUN FOR THE NEW COURTHOUSE This courtroom mockup in Barrio Logan provides an inside first-look at the new courthouse By Craig Benner Photos by Jason de Alba
he new courthouse (and its corresponding 71 new courtrooms) is still months away from hosting its first hearing or trial, but one fully operational court room— complete with counsels’ tables, jury box and the great seal of California—has been collecting dust for years in an obscure warehouse in Barrio Logan. Why? It was designed and built as a preemptive solution to the limitless problems one faces when building a $555 million project. On a project of this scale, a single day of construction equals more than $1 million in costs, so any delay equates to considerable expense. Thus, that lone courtroom signifies the “special” puzzle piece of efficiency. A courthouse (like any high-rise building) is really just a series of the same component parts replicated over and over on each floor. Thus, a model design that works and can be duplicated, cookie-cutter style, is more efficient and therefore, cheaper. So in the courthouse project, they literally built a courtroom, judge’s chambers … essentially an entire floor, to size, with exact specifications in the design phase of the project long before any actual construction started. A project as large as the new courthouse obviously takes almost a decade if you are including both the design phase (which began in 2009) and then the actual construction phase (which began in 2015). During the design phase, the Judicial Counsel of California, at the request of the general contractor of the project, Rudolph and Sletten, organized a committee of judges, clerks and representatives from the Sheriff’s, District Attorney’s and the Public Defender's offices to implement an efficient and workable design for each courtroom and accompanying amenities. The Committee helped the design by critiquing a foam-based replica of the courtroom. Issues such as whether there was enough space in the hallway, whether the bench was high enough so the judge could easily see all angles of the room, whether the bailiff could safely maneuver throughout the courtroom, etc. When something was not quite right, the foam pieces were rearranged or reconstructed. Once the Committee was satisfied, the exact specifications of every detail was recorded and applied to the plans for the actual construction. This mock courtroom had a dual purpose. Not only was it built to ensure functionality, it was built as a measure of efficiency. It ensured all construction specifications complied with applicable building and fire codes, and received a “pre-approval” of sorts from the code enforcement and fire marshal before the actual inspection (imagine the exponential cost increase if a building code issue was discovered halfway through the actual construction and had to be re-done). Unfortunately, as of this writing, the mock courtroom has most likely been dissected and recycled. Any parts that are usable in the actual courthouse are kept as “spare parts” in case something is needed. Even the great seal of California will find a new home in one of the 71 courtrooms. Rest assured, these types of mockups are the choice and desire of most general contractors in the modern building landscape, and are built into the project bids as an expense. So be thankful: When you walk through the halls of the new courthouse in the coming months, remember each chair, table and wall was meticulously designed with you in mind.
Craig Benner (craig@bennerboon.com) is a partner with Benner & Boon, LLP. 34 SAN DIEGO LAWYER November/December 2016
SDCBA Law Practice Management Partners Your SDCBA membership offers you a wide variety of member-only benefits and discounts from the following providers
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View from the bench
Looking through a glass window across the hall to model Department 1504
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Federal Court in San Diego This feature is part of a special series in recognition of the U.S. District Court, Southern District of California's 50th anniversary, which the court celebrated on September 16, 2016.
The History of Bankruptcy Courts in the Southern District of California By Hon. Laura Taylor
n April 4, 1913, Dorothy Bartholomew, the postmaster’s young daughter, climbed to the top of San Diego’s new federal building to raise the flag. Her footing was precarious, the winds were high, and in her exuberance—and probably to help keep her balance—she pulled so hard on the rope that the flag actually ripped before rising. But rise it did, and fly it still does.
0
The building in question is currently known as San Diego’s Weinberger Courthouse. This majestic building has served the public in San Diego for 100 years: as a post office, as a custom house and now as a federal courthouse housing the United States Bankruptcy Court for the Southern District of California. While the Constitution allowed Congress to create a national system of bankruptcy laws and bankruptcy courts, U.S. took its time developing permanent bankruptcy laws. Puritan principles warred with economic imperatives. As a result, the early years
A well-developed economy requires people to innovate, to dream and to experiment; but without a coherent bankruptcy system, the risks too often will be seen as dwarfing the potential upside, and the likelihood of innovative behavior and its societal rewards will be diminished.
of our country saw the enactment of bankruptcy laws in times of economic crisis and the repeal of those laws upon economic recovery. A well-developed economy, however, needs the safety valve provided by bankruptcy. It requires people and the businesses they form to innovate, to dream and to experiment; but without a coherent bankruptcy system, the risks too often will be seen as dwarfing the potential upside, and the likelihood of innovative behavior and its societal rewards will be diminished. Similarly, the honest but unfortunate individual debtors deserve an opportunity for relief from financial trouble and an opportunity to move on without being eternally saddled with debt and its negative impact on their ability to be productive members of society. As a result, beginning with the Bankruptcy Act of 1898, bankruptcy laws became a permanent part of federal law. And for its first 12 years, the subsequent Bankruptcy Act of 1938 governed the practice of bankruptcy law in our District. Thus, the history of the modern bankruptcy system and the history of the bankruptcy court for the Southern District of California are, in some ways, two sides of the same coin. The 1938 Act, in many respects, created laws closely resembling those governing in bankruptcy cases today. The administration of that law, however, was quite different. Referees—not judges— handled the cases. It is significant that one of those referees, Arline Rossi, is thought to be the first female referee appointed anywhere in the U.S. Referees did not wear robes, and they interacted much more directly with the trustees managing bankruptcy cases. By the 1970s, and during the early years of our District, however, the shortcomings of the Bankruptcy Act system were becoming clear. Thus, in 1978, Congress enacted the Bankruptcy Code. It has been modified many times, but, for most of the life of the District, this law governed everything that happens in our bankruptcy courtrooms. As the law changed, the bankruptcy system became more formalized. Bankruptcy referees became bankruptcy judges and donned robes. The relationship with trustees was professionalized; the trustee became just another litigant in the courtroom. The courtrooms, however, were not always in the beautiful Weinberger building. The bankruptcy court occupied space in the Schwartz Courthouse for many years and also conducted business in the San Diego Gas and Electric Building and the Jeweler’s Exchange Building at Sixth and E for periods of time. Eventually, however, the needs of the bankruptcy court meshed with a strong desire to save the beautiful Weinberger Courthouse. District Judge John Rhoades was a tireless advocate for preserving
36 SAN DIEGO LAWYER November/December 2016
50th Anniversary Federal Court in San Diego
this important piece of San Diego legal history. The building was asbestos-ridden and mothballed. Its fate might have been demolition or, equally unfitting, transformation into merely another federal office building full of cubicles. Judge Rhoades and others were insistent that the building continue its use as a courthouse. And then-Chief Bankruptcy Judge James Meyers worked with him to make sure that the building met the bankruptcy judges’ needs. The Weinberger Courthouse was poorly configured for criminal trials or modern jury trials. But it was a perfect choice for the bankruptcy court, which handles neither criminal proceedings nor jury trials. The District currently has four authorized judgeships and often has a fifth recall or visiting judge assisting. The Weinberger Courthouse has space for five courtrooms—it was a perfect match. Thus, the legal community and others joined
together to ensure that this important piece of our history was preserved, protected and made productive. Numerous referees and judges have passed through the bankruptcy courtrooms of our District. Judge Louise DeCarl Adler joined the court in 1984 as one of the first female bankruptcy judges appointed under the 1978 system. At this time she continues to serve actively and is currently the longestserving female bankruptcy judge in the country. Other judges also have served with distinction, and the bankruptcy court currently has three active judges in addition to Judge Adler: Chief Judge Laura Taylor, Judge Margaret Mann and Judge Christopher Latham. Within the halls of the Weinberger Courthouse, many San Diego citizens have their only exposure to our federal judicial system. They come to the courthouse to have their financial needs or financial claims adjusted. San Diego businesses
Within the halls of the Weinberger Courthouse, many San Diego citizens have their only exposure to our federal judicial system.
and institutions including Yellow Cab, the US Grant Hotel, Nucorp, the San Diego Symphony and the Roman Catholic Diocese of San Diego and Imperial Counties filed cases and sought resolution during financial crisis. And the bankruptcy court has done its part when financial fraud damaged our citizens; in cases involving the J. David Dominelli companies and Pioneer Mortgage, for example, the court provided creditors with closure—if not payment in full. The Judges of the United States Bankruptcy Court for the Southern District of California are well aware of the importance of their tasks to the San Diego economy and very mindful of the hard work of the jurists who preceded them. They are committed every day to making sure that the flag continues to fly over Weinberger—and over a courthouse that meets the needs of San Diego’s citizens. Hon. Laura Taylor is Chief Judge of the U.S. Bankruptcy Court for the Southern District of California.
Respected. Effective. Committed. Kathryn Karcher, for your client’s appeal.
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Debate Series: The Duty to Defend insuring agreement. (Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1188.) To present a potential for coverage, an insured must be facing a legal obligation to pay sums as covered damages occurring during the policy period and caused by an "occurrence," defined as an "accident."
Counterpoint
The Duty to Defend Has Its Limits By Todd Haas and Bridget Moorhead
v. Point: The other side of this argument was featured in the September/October 2016 issue of San Diego Lawyer. Read it online at www.sdcba.org/SepOct16
I
nsurance policies are not intended to provide a defense for every loss. The duty to defend is triggered by a "suit" demanding damages against an insured for bodily injury, property damage, or personal and advertising injury covered by the CGL policy. If there is no "suit" or "occurrence" of covered damages, there is no duty to defend. If an exclusion applies to negate coverage, there is no duty to defend. Although the potential for coverage standard is alive, it is subject to several limitations and evolving case law. 1. The Duty to Defend Does Not Begin Until Tender of a Lawsuit and Ends When the Lawsuit Is Concluded or the Insurer Shows There Is No Coverage. Insureds often argue an insurer is obligated to defend a "claim" or the insurer must defend even without a tender. California law is clear that the duty to defend arises upon the insured's tender of a lawsuit, and an insurer generally has no duty to defend until a lawsuit is filed and the insured notifies the insurer of the lawsuit. (Fiorito v. Superior Court (1990) 226 Cal.
App.3rd 433, 439.) The duty to defend is not triggered by the insurer's learning of a claim against the insured even though the insured never attempted to tender the claim. (Truck Insurance Exchange v. Unigard Insurance Co. (2000) 79 Cal.App.4th 966, 972.) The duty to defend is “discharged when the action is concluded” or the policy is exhausted, unless it is “extinguished earlier” because the insurer shows “that no claim can in fact be covered.” (Aerojet-Gen Corp. (1997) 17 Cal.4th 38, 58.)
Although the insurer has the burden to show an exclusion applies, if the exclusion is clear, California courts "will not adopt a strained or absurd interpretation" of exclusions and the language must be interpreted in the context of the policy as a whole and the circumstances of the case. (California Traditions, Inc. v. Claremont Liability Ins. (2011) 197 Cal.App.4th 410.) The insured cannot claim that its "reasonable expectation of coverage" applies, unless there is an ambiguity. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 456-457.) Therefore, the insured must first show that the allegations fall within the insuring agreement, and exclusions may defeat any duty to defend. 3. Artful Pleading and Legal Disputes Cannot Create Coverage, and Insurers Can Use Extrinsic Evidence to Defeat a Defense Duty. Insureds often argue that the complaint is "broad enough" to create a potential for coverage. However, artful pleading cannot create a fortress for the insured whether the duty to defend might exist because courts do not examine only the pleaded work, but also examine the potential liability created by the lawsuit. (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 275-277.) If the potential liability is not covered, no duty to defend exists.
An insurer has no obligation to defend before a tender of a lawsuit is made and no duty to defend after the lawsuit is concluded or the insurer shows the allegations are not covered.
A potential for coverage can only be based on factual disputes. If the allegations create a purely legal question regarding coverage, and the legal question is decided against coverage, then no duty to defend ever existed. (State Farm Gen. Ins. Co. v. Mintarsih (2009) 175 Cal.App.4th 274, 284.)
2. The Insured Has the Burden to Show the Allegations Fall Within the Insuring Agreement, and the Insurer Can Use Extrinsic Evidence to Defeat Any Duty to Defend.
Moreover, an insurer can use extrinsic evidence to defeat a defense duty. (Montrose Chem. Corp. v. Superior Court (1993) 6 Cal. 4th 287, 291.)
Insureds sometimes claim that the insurer has the burden to prove there is no coverage in all instances.
4. Insurers Have No Duty to Defend Complaints Alleging Intentional, NonAccidental Conduct.
However, the insured bears the burden of proving the allegations fall within the
Insureds will sometimes argue intentional conduct is covered, because it was done in an "accidental" manner. November/December 2016 SAN DIEGO LAWYER 39
Debate Series: The Duty to Defend An "accident" is "an unexpected, unforeseen or undersigned happening or consequence from either a known or an unknown cause" and refers to the conduct of the insured for which liability is sought to be imposed on the insured. Purposeful and intentional acts by the insured do not involve an "accident," even in a situation where the insured's mistake of law or fact motivated those acts. (Delgado v. Interins. Exchange of the Auto. Club of So. Cal. (2009) 47 Cal.4th 302.) A voluntary and deliberate business decision does not involve an "accident." (Golden Eagle Ins. Corp. v. Cen-Fed, Ltd. (2007) 148 Cal. App.4th 976.) A negligence cause of action does not change this conclusion. California law focuses on the nature of the insured's conduct, and if the conduct could not have been engaged in by "accident" and all of the causes of action arise out of that conduct, the other allegations do not create a duty to defend. (Gonzalez v. Fire Insurance Exchange (2015) 234 Cal.App.4th 1220, 1233-1236.) Therefore, insurers have no duty to defend allegations of intentional conduct regardless of allegations of "accidental" behavior.
5. Insurers Have No Duty to Defend Claims Seeking Purely Economic Damages. Insureds often try to create coverage for purely economic damages. "Strictly economic losses like lost profits, loss of goodwill, loss of the anticipated benefit of a bargain, and loss of an investment, do not constitute damage or injury to tangible property covered by a comprehensive general liability policy." (Giddings v. Industrial Indemnity Co. (1980) 112 Cal.App.3rd 213, 219.) Insurers have no duty to defend allegations seeking purely economic damages. 6. Insurers Are Entitled to Reimbursement of Defense Costs Incurred to Defend Uncovered Claims. The duty to defend must be tempered by the insurer's right of reimbursement of defense costs incurred to defend uncovered claims. (Buss v. Superior Court (1997) 16 Cal.4th 35 and Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643.) In Buss, plaintiff asserted 27 causes of action, but only one claim for defamation was
potentially covered under the policy. The California Supreme Court held that in a "mixed" action, the insurer is entitled to reimbursement of the defense costs incurred to defend causes of action where there is no potential for coverage. In Buss, it was determined that of the $1 million in defense costs, only an amount between $21,000 and $55,000 was the insurer's responsibility. Although the insured may receive a complete defense on the front-end, the insurer is able to recover defense costs on the back-end in a reimbursement action. While the duty to defend is broad in California, there are limitations within the CGL policy. Insureds should not always assume that the defense of an entire lawsuit will be covered, and insureds should pay close attention to the reservation of rights letters and policy language, which provide guidance to the insurer’s position. Todd Haas (thaas@selmanlaw.com) and Bridget Moorhead (bmoorhead@selmanlaw. com) are attorneys with Selman Breitman LLP.
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SAN DIEGO COUNTY BAR ASSOCIATION
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 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
*
42 SAN DIEGO LAWYER November/December 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 Misty Moore Gerald S. Mulder Todd F. Stevens Thomas J. Warwick Jr. Andrew H. Wilensky BENEFACTOR MEMBERS Doc Anthony Anderson III Jedd E. Bogage Steven T. Coopersmith Alexander Isaac Dychter Douglas A. Glass Alvin M. Gomez J. William Hinchy Jr. Philip P. Lindsley FRIEND MEMBERS Laura Ashborn Steven Barnes 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
Pro Bono: Do It for You By Parisa Ijadi-Maghsoodi
T
housands of local pro bono attorneys represent low-income San Diegans through San Diego Volunteer Lawyer Program (SDVLP). Ask why and they will say that the level of justice one receives should not depend on how much one can pay for an attorney.
that is otherwise difficult to obtain, a winwin for associates and partners equally interested and invested in the development of the associate’s skills and talent.” SDVLP has a reputation for excellence. The quality of the work and effectiveness of the advocacy reflect the high stakes at issue,
The intangible benefits of pro bono cannot be understated. Serving as a pro bono attorney connects a lawyer to others in the legal community who she or he may not otherwise meet. You will be meeting these individuals in your capacity as a licensed attorney, and your capacity as an attorney dedicated to representing disadvantaged clients.
What they may not tell you is what’s in it for them. We are all busy, overbooked and underresourced. There is barely enough time to expand one’s practice, much less time to volunteer. This is where pro bono work through SDVLP comes in. Attorneys who do it become better attorneys. They hone their skills and learn new areas of law. There is no risk—only benefits. They give back while benefiting themselves. Just ask Ellen Adler of Morrison & Foerster: “Pro bono assignments are win-win situations for associates and partners alike. They allow attorneys in all stages of their careers to give back to the community, an obvious win. And pro bono opportunities especially benefit young attorneys to get practical court and deposition experience
Distinctions
Through SDVLP, attorneys learn new areas of law. Perhaps they want to expand their practice to include estate planning—so we train them in the nuts and bolts of the law, we oversee their work on a case, we provide them with templates and provide technical assistance.
such as child custody, health care coverage and discrimination. SDVLP has a staff of 14 attorneys dedicated to supporting pro bono attorneys. The result? Pro bono attorneys achieve stellar results for those who would otherwise go unrepresented. Attorneys often contact SDVLP because they wish to improve a skill. Perhaps they want to improve their depositiontaking skills—so we train them on how to depose a witness, we go with them to the deposition and we provide feedback.
The other secret about pro bono is impossible to articulate: how good you will feel after you help to change a life. To get involved, contact the author, SDVLP’s Pro Bono Manager Parisa Ijadi-Maghsoodi at pijadi@sdvlp.org. Parisa Ijadi-Maghsoodi (pijadi@sdvlp.org) is Pro Bono Manager and Supervising Attorney with SDVLP.
Individuals and organizations in our community were recently honored for a variety of achievements. The following is a list of recent community recognitions:
Fragomen attorney Monica Sherman Ghiglia was awarded the Inn of Court Pro Bono Publico Award at Casa Cornelia Law Center's Ninth Annual La Mancha Awards.
Jim Peterson, Higgs Fletcher & Mack partner, was named Chairperson of Make-A-Wish® San Diego, and Higgs attorney Michael Gibson was named President of the Mid-City Little League.
Elaine Alexander, Executive Director of Appellate Defenders, Inc., was honored as the California Women Lawyers Fay Stender Award Honoree.
Attorney Ken Turek was honored with the ABA's Tort Trial and Insurance Practice Section's Pursuit of Justice Award.
Attorney Stephen Temko was named recipient of the Association of Certified Family Law Specialists Sterling Award.
To submit information regarding honors of a community or civic nature or passings in the legal community, email bar@sdcba.org. November/December 2016 SAN DIEGO LAWYER 43
EARN MCLE CREDITS
ON-DEMAND Did you know that you can earn MCLE credit anywhere, anytime from the SDCBA website? Visit the SDCBA’s on-demand MCLE platform to access over 50 pre-recorded programs to fulfill your participatory MCLE credit requirements at your convenience. All you need is an internet connection. Learn more and get started at www.sdcba.org/MCLEOnDemand
Statement of Ownership, Management and Circulation (required by 39 U.S.C. 3685).
1. Publication title: San Diego Lawyer. 2. Publication number: 1096-1887. 3. Filing date: October 1, 2016. 4. Issue frequency: Bimonthly. 5. Number of issues published annually: 6. Annual subscription price: $10 member/$50 non-member, 7. Complete mailing address of known office of publication: 401 West A Street, Suite 1100, San Diego, CA 92101-7923, San Diego County. 8. Complete mailing address of headquarters or general business office of publisher: 401 West A Street, Suite 1100, San Diego, CA 92101-7923. 9. Full names and complete mailing addresses of publisher, editor and managing editor. Publisher: Ellen Miller-Sharp, 401 West A Street, Suite 1100, San Diego, CA 92101. Editor: Edward McIntyre, 750 B Street, Suite 2100, San Diego, CA 92101; Christine Pangan, 1605 9th Avenue, San Diego, CA 92101. Managing Editor: Jenna Little, 401 West A Street, Suite 1100, San Diego, CA 92101. 10. Owner: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 11. Known bond holders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: None. 12. Has Not Changed During Preceding 12 Months. 13. Publication title: San Diego Lawyer. 14. Issue date for circulation data below: September/October 2015—July/August 2016. 15. Extent and nature of circulation: Membership/trade publication. a. Total no. of copies. Average no. copies each issue during preceding 12 months: 8,234. No. copies of single issue published nearest to filing date: 7,895. b. Paid circulation. (1) Mailed outside-county mail paid subscriptions stated on Form 3541. Average no.
copies each issue during preceding 12 months: 342. No. copies of single issue published nearest to filing date: 292. (2) Mailed in-county paid subscriptions stated on Form 3541. Average number copies each issue during preceding 12 months: 7,734. No. copies of single issue published nearest to filing date: 7,453. (3) Paid distribution outside the mails including sales through dealers and carriers, street vendors, counter sales and other paid distribution outside USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (4) Paid distribution by other mail classes through the USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. c. Total paid distribution. Average no. copies each issue during preceding 12 months: 8,076. No. copies of single issue published nearest to filing date: 7,745. d. Free or nominal-rate distribution. (1) Outside-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (2) In-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (3) Not applicable. (4) Free or nominal-rate distribution outside the mail. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. e. Total free or nominal-rate distribution. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. f. Total distribution. Average
no. copies each issue during preceding 12 months: 8,076. No. copies of single issue published nearest to filing date: 7,745. g. Copies not distributed. Average no. copies each issue during preceding 12 months: 158. No. copies of single issue published nearest to filing date: 150. h. Total. Average no. copies each issue during preceding 12 months: 8,234. No. copies of single issue published nearest to filing date: 7,745. i. Percent paid. Average no. copies each issue during preceding 12 months: 100%. No. copies of single issue published nearest to filing date: 100%. 16. Electronic copy circulation: Not applicable. a. Paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. b. Total paid print copies + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. c. Total print distribution + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. d. Percent paid. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. 17. Publication of Statement of Ownership for a general publication is required and will be printed in the November/December 2016 issue of this publication. I certify that all information furnished is true and complete. Ellen Miller-Sharp, Executive Director, San Diego County Bar Association
PHOTO GALLERY Peggy Nagae
DIALOGUE ON DIVERSITY Photos by J.T. MacMillan
o l at L-R: Ben Aguilar, Ellen Miller-Sharp, Peggy Nagae, Melissa DeLeon, Jerrilyn Malana
Members of our legal community gathered to discuss diversity and inclusion with expert Peggy Nagae on November 1. Thank you to event sponsors AHERN, CaseyGerry, Cozen O'Connor, Higgs Fletcher & Mack, Klinedinst, Mintz Levin, Procopio, and Wilson Turner Kosmo LLP.
Peter Lynch
Kyle Nageotte
Kia Roberts
Janet Ambrozek
Lea Fields-Bernard
Elisabeth Epel, Peggy Nagae
Dani Battiest
Victor Torres November/December 2016 SAN DIEGO LAWYER 45
PHOTO GALLERY EVENING IN LA JOLLA Photos by Douglas Gates Legal professionals and guests gathered at the San Diego County Bar Foundation's Evening in La Jolla to support providing access to justice to the underserved in San Diego.
Diana Khoury
L-R: Jason Whooper, Sara Kathryn Smith, Randy Jones
L-R: Kathryn Fox, Michael Fox, Derek Paradis
L-R: Loren Freestone, Ilona Antonyan, James Crosby
San Diego County Bar Foundation Volunteers & Staff
2016 San Diego County Bar Foundation Board of Directors
ADVERTISERS INDEX ADR Services, Inc......................................... 2 AHERN Insurance........................................ 5 CaseyGerry .................................................... 3 Estey Bomberger............................................... 16 First Republic Bank............................................. 12 Fragomen, Del Rey, Bernsen & Loewy, LLP.. 22 Gomez Trial Attorneys............................. 21 46 SAN DIEGO LAWYER November/December 2016
Huver Mediation......................................... 15 JAMS................................................................... 24 Judicate West ............................................... 6 Kathryn Karcher........................................... 37 Law Office of Steven C. Vosseller...... 10 Law Office of Stacie L. Patterson....... 32 LawPay.............................................................. 18
Lawyer Referral & Information Service.41 Panish Shea & Boyle LLP...................................47 Pokorny Mediations.............................................33 San Diego County Bar Foundation ........38 Todd Bulich Real Estate Company...........48 West Coast Resolution Group............. 40
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