December 2012 - San Bernardino County Bar Association

Transcription

•BULLETIN•
of the San Bernardino County Bar Association
Vol. 41, No. 2
Our 138th Year
From the
President’s Desk
By
Kevin B. Bevins
I
s it just me, or do others seem to have someone
flipping the pages of their calendars two days at
a time? 2012 has gone by in a blur. In a world that
seems to get busier by the day, with texting, tweeting,
Facebook, faxing, emailing, office phones, home
phones, cell phones (sometimes two), and a myriad
of other instant communication devices the new norm,
time just flies by in a whirling blur.
We’ve managed to endure an election cycle that
seemed to have gone on for years, with a barrage of
negative ads, streams of emails, Super Pacs, pundits,
politicians, polls and prognostications galore. The
news is teeming with warnings of global warming,
fiscal cliffs, more taxes, less taxes, energy shortages,
oil spills, wars, famine, hurricanes, droughts, political
unrest and upheaval everywhere - all this with every
turn of the dial, turn of a page of a newspaper, and the
ever increasing electronic alerts.
We’ve had years of war, political gridlock, gas price
spikes, water rate increases, electricity shortages, and
budget woes in California. Bad news that just never
stops!
In our large, dry slice of the Golden State, we’ve
seen the city of San Bernardino file for bankruptcy
protection, and other cities in San Bernardino County
are truly hurting. Our San Bernardino County courts are
cutting locations, courtrooms, valued staff and bench
officers.
Are we on overload? With Thanksgiving a memory
and Christmas soon upon us, it truly is time to take a
breather, find a comfy chair and reflect on just why we
endure such madness.
Those of us who choose some aspect of the legal
business to earn a living should sit back, count our
blessings and ponder why do we do this, and what lurks
ahead.
The Great Recession has ripped at the heart of the
Inland Empire, but it ain’t dead, yet! I am proud to call
San Bernardino County my home. When we sit back
and consider how fortunate we are to live here and work
here, we should take time to look for the positive, and
be thankful that we work with dedicated and driven
colleagues.
(continued on page 2)
December 2012
INLAND EMPIRE & SBCBA EVENTS
DECEMBER 2012
Thursday, December 6:
• New Admittees Swearing-In. 10 a.m. Dept.
1, Riverside Court.
• “State of the California State Bar.”
Patrick M. Kelly, President of the California
State Bar, will speak to the annual Joint Meeting of the San Bernardino & Riverside County
Bar Associations.
San Bernardino Hilton, 12:00 noon. Italian Buffet
$30. MCLE: 1 hour. 909.885.1986 to RSVP.
JANUARY 2013
Thursday, January 24:
• Probate/Family Law Symposium
Held at the San Bernardino Hilton. Details on
page 2.
Friday, January 25, 2012:
• High Desert Bar Association Installation
—The Sky’s the Limit!—
Complete details in our January Bulletin
SAVE THIS DATE!!
In this issue...
1 ...............President’s Desk
2 ...............Probate/Family Law Symposium
4 ...............Text Message Preservation
5 ...............December Almanac
6 ...............The iPad Lawyer: Real Secrets...
8 ...............Inn of Court Report
10..............22nd Annual Red Mass
12..............Mediation in Civil & Family Law
15..............Classified Ads
San Bernardino County Bar Association
2
December 2012
From the President’s Desk... (cont’d from page 1)
Despite reduced court facilities, our court system still
functions, and does so very efficiently. Criminal cases still go
to trial, civil cases, too. Our family law, Juvenile and Probate
Courts, busy as can be, continue to churn away, one case at
a time. In a time of drastic financial cut backs, our Court
Administration, Judges, Commissioners, lawyers, law office
staffs, court attendants, bailiffs, clerks, court reporters, and
everyone else with a toe or finger in the system have found
the fortitude to lend a hand to get the work done.
Word has spread that the Chino Court facility is the next on
the chopping block. The dedicated employees of our court will
once again have to bear an increased burden and do more with
less, but we know that somehow, the work will get done.
A new Courthouse is rising, girder by girder, promising a
new, state of the art Court facility that will anchor downtown
San Bernardino, and will provide many opportunities for legal
professionals, and the ancillary businesses that will sprout up
around the new legal center.
With chaos and turmoil abundant, we must not lose focus
on why we chose the legal profession. Take time this holiday
season to reflect on what your profession means to you, and
why you put in the long hours to get the job done.
Take time to enjoy family and friends, and consider that
despite the hectic, chaotic and busy nature of the practice of
law in San Bernardino County, it really is a good place to live
and work.
We are privileged to welcome new California State Bar
Association President Patrick M. Kelly, who has graciously
agreed to continue the 38 year tradition of the San Bernardino
and Riverside County Bar Associations to invite the State Bar
President to address our Annual Joint Luncheon. This year,
the San Bernardino County Bar Association will host the
event, set to occur at the Hilton Hotel in San Bernardino at
noon on December 6, 2012. Mr. Kelly is a dynamic individual
and a terrific speaker. Please join us for this special event. The
Hilton chefs and staff will no doubt feed us well, as always.
SAVE THE DATE!!
Thursday, January 24, 2012
A PROBATE/FAMILY LAW SYMPOSIUM
“CROSSOVER ISSUES IN ESTATE
PLANNING AND FAMILY LAW”
Topics will include:
“A View from the Bench –
News from the Probate and Family Law Courts”
“Recent Updates in Probate and Family Law”
“Under the Influence:
Different Standards for Claims of Undue
Influence in Family Law and Probate Matters”
“Premarital and Cohabitation Agreements –
Impact on Estate Planning”
“Fiduciary Duty of Spouses per Family Code
§§720-721 – Impact in Probate Litigation”
San Bernardino Hilton
285 E. Hospitality Lane
MCLE, Materials, & Buffet:
Members: $45; Non-members $55.
Michael B. Lynch, MPA
Polygraph Examiner Since 1974
MCLE: 2.5 Hours
(951) 529-2486
Full details announced in the January Bulletin.
www.lawyerspolygraph.com
The San Bernardino County Bar Association, a
California State Bar-approved MCLE provider,
certifies that this activity is approved for 2.5 hours of
MCLE general credit by the California State Bar.
mlynch@lawyerspolygraph.com
390 Orange Show Lane
San Bernardino, California
Call 909/885-1986 or reserve online at
www.formdesk.com/sbcba/rsvp.
December 2012
“The oldest continuously active bar association in California”
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4
Text Message Preservation
by Sharon D. Nelson, Esq., John W. Simek and Jesse M.
Lindmar © 2012 Sensei Enterprises, Inc.
W
ith an average of 193.1 billion text messages sent every month
in the United States, the importance and use of text messages in
litigation is ever-increasing. As a consequence, the importance of text
message preservation for e-discovery is also growing. Understanding
how text messages can be preserved and the pitfalls to avoid is essential.
While we recommend engaging the services of a digital forensics service
provider who is familiar with the complexities of mobile phone forensics,
there are certain situations in which the end-user can at least create a
preserved, forensically sound copy that a digital forensics expert can later
access and produce data from.
For the purpose of this article, we are assuming that the text messages
are sent or received by a mobile telephone. We’ll start by lumping most
of the mobile phones in use today into two major categories: Smartphones
and Feature Phones. The most popular Smartphones would include
Apple’s iPhone, Google’s Android, Microsoft’s Windows Phone, and
RIM’s BlackBerry devices. Feature phones are pretty much everything
else; having some of the basic “features” of smartphones, but lacking in
overall integration with the phone’s operating system and hardware, and
with limited user-customization options.
Feature Phones
For feature phones, the end-user is limited as to their preservation
options. Depending on the service provider, the feature phone may or
may not be equipped with a Subscriber Identity Module (SIM) card. The
SIM card contains information that will validate the phone on the service
provider’s network, but can also be used as a repository for received text
messages. Text messages can also be stored on the phone itself, and in
some situations, messages are stored on the phone and SIM card. There
are a number of SIM card readers and software products that, when used
together, allow a user to explore and manage the contents of a SIM card.
However, if the user doesn’t fully understand how to use the hardware/
software safely, he or she could just as easily alter or permanently erase
the very data they are trying to preserve.
There are several products used within the forensic community to
preserve text messages from many feature phones - from both a SIM
card and the phone itself. This will result in an electronic copy of the
text messages being extracted from the SIM card and/or phone, and will
include not only the content of the message, but also the date and time
the text message was sent/received and information about the sender
(phone number and/or contact information for a phone number if the user
has added them to the phones address book). Furthermore, SIM cards
and many feature phones have a limited number of “slots” to store text
messages, and the number of slots will vary across manufacturers and
can even vary across similar phone models from the same manufacturer.
When these slots are full, the phone will begin to overwrite the older
text messages with the newer ones - a process that renders the older
messages unrecoverable. With an average user sending or receiving
sixty text messages per day, the likelihood of this happening increases
dramatically.
For a digital forensic expert, the ability to recover deleted text messages
from a feature phone is dependent on the make/model of the phone, the
length of time that has passed since the messages were deleted, the number
of new text messages that have been sent/received since the messages
were deleted, and whether the deleted messages have been overwritten.
Furthermore, the make/model of phone will need to be supported by the
forensic hardware/software the expert uses - if the hardware/software
cannot communicate with the phone, the data cannot be accessed and
preserved. Recovery from a SIM card is a little more straightforward as
its architecture is standard; however, the same usage rules apply to it.
This is why we never make promises about what we can recover. It is
more or less a crap shoot every doggone time.
Smartphones
For smartphones, and depending on the make and model of phone, there
are several options for preserving text messages. Although a smartphone
may be equipped with a SIM card, text messages are not typically stored
December 2012
there. Instead they are stored in a database file or another organized
collection format, located on the phone itself - it is this file(s) that will
specifically need to be preserved.
The iPhone, in conjunction with iTunes (Apple’s software program
for playing, downloading, saving, and organizing multimedia files on
a computer or Apple iOS device), will allow an end-user to create a
backup of the existing user-data from the phone - including the database
file that stores the text messages. When the user connects the phone to
iTunes, this backup will typically happen automatically, but a user can
also initiate the backup at any time. iTunes will only store one backup at
a time, so creating a new backup will cause the deletion of a previously
created backup. The backup file will be buried in a system area of the
computer used to create the backup, but with a little assistance it can be
located. A user won’t be able to access the data in the backup without
special software, but a qualified digital forensics expert will be able
to open the backup, access the text message database, and extract the
necessary text messages. To a degree, deleted text messages may also
be recoverable from the existing text message database. However, if a
significant amount of time has passed, and depending on the user’s text
messaging habits, deleted text messages will not be recoverable via this
method. A digital forensics expert will need to create a more thorough
backup of the phone that will allow them to potentially recover deleted
text messages using more advanced techniques.
Similar to the iPhone, BlackBerrys also allow for a backup to be
created that will contain existing text messages. This backup can be
created using the BlackBerry Desktop Manager software that comes with
the phone or is available for download from the BlackBerry website.
Unlike the iPhone, multiple backup files will exist on the computer used
with the Desktop Manager. Like the iPhone backup, a user won’t be able
to access the data in the backup without special software, but a qualified
digital forensics expert will be able to open the backup and extract the
necessary text messages. Deleted text messages can only be recovered
using a combination of specialized hardware and software used by digital
forensic service providers specializing in mobile phone forensics. In
some situations, only the removal and analysis of the phone’s memory
chip, a process that will destroy the phone, will allow for the recovery
of deleted text messages. For obvious reasons, this route is ordinarily
something undertaken primarily by law enforcement.
Google Android and Windows Phone smartphones do not have a native
method for preserving text messages. A digital forensics expert will
use tools and techniques specific to the type of phone they encounter.
However, for the end-user, there are several third-party applications that
advertise the ability to backup existing text messages from these devices.
Any application the end-user chooses should offer the ability to export
the messages and their attributes into an uneditable format, so there is no
question as to their authenticity.
Not all makes/models of phones are supported by forensic products
and electronic versions of the existing text messages are not always
obtainable. In these situations, even the best forensic examiner will
be forced to painstakingly take digital photographs of the existing text
messages as they natively appear on the mobile phone. And yes, these
are admissible in court. As far as deleted text messages are concerned, if
they still exist on the phone, even in a fragmented form, a digital forensic
expert should be able to recover them as long as the analysis computer
can communicate with the phone.
Regardless of the method used, it should not alter any of the original text
messages, the process and results must be reproducible and the preserved
information must be identical to the original source information.
Although an end-user may be able to assist with some of the initial stages
of text message preservation, a digital forensics expert will be able to
extract and produce verified and accurate text message data from the
preservation data set. In most situations, engaging a digital forensics
expert to complete the entire project life-cycle - from preservation to
production - will allow for a more accurate and defensible use of text
message data.
The temptation to DIY this sort of project should be resisted. If you’re
going to throw the dice and gamble monies on the recovery of text
messages, hiring an expert will give you the best odds of rolling a seven.
The authors are the President, Vice President and Director of Computer
Forensics at Sensei Enterprises, Inc., a computer forensics and legal
technology firm based in Fairfax, VA. 703-359-0700 (phone) 703-359-8434
(fax) sensei@senseient.com (e-mail), http://www.senseient.com.
December 2012
www.sbcba.org
DECEMBER ALMANAC
By: Tony Sears
A
ll times Pacific Standard Time (PST), which is minus eight (8)
hours from UTC (Universal Time Coordinated). Location: 34.1
N, 117.7 W. All astronomical data courtesy of the United States Naval
Observatory website:
December Sky. The December Full Moon, known as the “Full Long
Night Moon” occurs on December 28, 2012, at 2:21 a.m. and rises at
5:28 p.m. The Geminids meteor shower is predicted to be excellent
this year. The Moon is not an issue and zhr (zenithal hourly rate)
is expected to by 120 on the night of December 13-14. I will be
up at Cow Canyon Saddle near Mt. Baldy. Jupiter is at opposition
December 2 and in the sky from dusk ‘til dawn. For you early birds,
look for the triple threat of Venus, Saturn, and the thin crescent Moon
early on the morning of December 9. The Winter Solstice occurs on
December 21, at 3:11 a.m. The “shortest” (least time between sunrise
and sunset) days of the year is are actually December 16 through 22,
with 9 hours and 53 minutes between sunrise and sunset.
Looking for an interesting and useful Holiday gift? Consider the
“Astronomical Calendar 2013” by Guy Otwell, published by Universal
Workshop, P.O. Box 102, Rayham, MA 02767-0102, telephone
(800)-533-5083, UniversalWorkshop.com. This an excellent resource
for beginner to expert. You can teach yourself basic astronomy just by
following the calendar for a year. It is in a large format and contains
sky maps and many helpful diagrams. It costs about $30.00 a copy. Go
ahead and order 2 or 3 copies, because when you see it, you’ll want to
keep a copy for yourself.
Winter Preparations: With the approach of the rainy season,
December is great time to do a few simple things that will make those
bad weather days go a little smoother. Replace your wiper blades,
which degrade in the sunlight. Check your tires and make sure they
are properly inflated. Check your spare tire. Make sure your AAA
membership is in force. Locate your umbrella and rain gear. Give your
yard the once over. Stow that firewood on the porch. Having it all
together before you hit the hay makes for a nice cozy slumber.
Garden Notes: Take advantage of the chance to plant flowering bulbs
now. Daffodils, Tulips, Freesia, Anenomes, Crocus, and Hyacinths.
You can buy your bulbs now, put them in the fridge or other cool
dry place until you plant late in December or early January. You can
do some impressive things in your flower beds with bulbs. You can
make circles, squares, triangles, letters, or any other pattern you can
conceive of. Just dig a shallow trench, throw some bone meal or other
bulb fertilizer, arrange the bulbs, cover with soil, and finish with a
layer of medium or small redwood bark mulch. Give it one good
watering and the winter rains will take care of the rest. These bulbs all
do quite well in containers. By February or March, your efforts will
be rewarded.
December Recipe: At the installation dinner in October, the topic of
lasagna came up. During our discussion, I told Ricardo Echeverria that
the best lasagna ever is made by our own past President, Angelique G.
Bonanno. So, again, by popular demand, here it is:
AGB LASAGNA DELUXE
This takes all day, but your efforts will be rewarded. Perfect Sunday
project for a chilly December day. This is great one to get your
teenager(s) involved. It also freezes quite well. You can double up
on the sauce and make 2-3 trays at the same time. Angelique tells me
that you can use small disposable pans for a 2-4 person serving. When
freezing, wrap with plastic first, then foil to protect against freezer
burn. Nothing like having a nice lasagna in the freezer. Serve with
garlic toast, a fresh green salad, and a nice Chianti.
5
Angelique’s Pasta Sauce
2 pounds leanest ground beef (best to use 8% fat or less; ground
sirloin or even ground bison if you can get it)
1 tbsp extra virgin olive oil
4 cans Hunts tomato sauce (large size cans)4 cans Hunts tomato
paste (medium size cans)
2 cups Cabernet wine
1/2 cup vodka (optional, but best if you use Grey Goose)
Salt and pepper
1⁄2 cup parsley flakes
1/4 cup basil flakes
1/4 cup oregano flakes
1 tbsp garlic salt
(optional: 1 tbsp sugar, but real Italians don’t use this in their sauce)
Set the stove burner for high. In a large pot, add olive oil. Swish around
to cover bottom of pot. Add tomato sauce, and paste. Stir continuously.
Add wine and vodka. Stir continuously. Add 1 tsp of salt, 1 tbsp pepper.
Stir continuously. Add parsley, basil, oregano, garlic salt, (and sugar if
you choose) Stir continuously. Keep on high heat for 10-15 min. Stir
continuously. Be careful, sauce will spit when it heats up. Reduce heat
to medium and cover pot. Brown ground beef in large pan. Season to
taste with salt and pepper (I prefer more pepper to give it a kick) Drain
extra fat from meat. Add meat to sauce. Stir continuously for about 5
minutes. Reduce heat to lowest setting. Cover pot. Let sauce barely
simmer for 4-6 hours. Always remember to return to sauce and stir!!!
You likely have a timer app on your smart phone, so put it to good use.
The trick to reducing the acidic taste of pasta sauce is to let it cook for
several hours on the lowest heat, and stirring from time to time. The
extra time cooking makes a big difference in the finished product.
Angelique’s 8 layer Lasagna
(This is for a full large tray or 2-3 smaller trays.
3-4 packs lasagna noodles (I prefer Barilla brand)
Large tub of Ricotta cheese
Large cube of Mozzarella cheese (you will need to grate it, or you
can cheat and get the grated cheese at Claro’s in Upland)
Grated Parmesan cheese
splash of olive oil
parsley flakes
Preheat oven to 350f. To prep the lasagna noodles, use a large flat pan.
Fill with water and a splash of olive oil. (this is so the noodles will
not stick together) Place lasagna noodles in water to soften (about 1015 min) The noodles will finish cooking in the final product and you
won’t have to worry about handling cooked pasta. Grate mozzarella
cheese. In large lasagna pan, line bottom of pan with a layer of pasta
sauce. Add a layer of lasagna noodles. Add large spoonful of ricotta
cheese on each noodle, about 2-3 inches apart. Sprinkle a layer of
grated mozzarella cheese all over pan. Sprinkle a thin layer of grated
Parmesan cheese all over pan. Add second layer of lasagna. Add a
layer of pasta sauce (be generous with your sauce!) Add cheeses
as above. Add layer of pasta sauce. Repeat until you have 8 layers.
The final (top) layer should be pasta sauce. Sprinkle parsley on top,
in the center of pan for design. Cover pan with tin foil. Bake at 350
with tin foil on top of pan for 45-50 min. Remove tin foil and bake for
another 5-10 min. Remove from oven and allow to sit for 10-15 min
before cutting.
When cooking a frozen lasagna, it is not a good idea to thaw first.
It will become soggy. Start the oven off at 425. Remove the plastic
wrap. Replace the foil and leave lasagna covered with aluminum foil,
bake for 50 minutes at 425, uncover, and finish 15-20 minutes at 350.
While that lasagna is heating up, you will have your evening chores
closed out, and be able to sit down for a simple, awesome homemade
dinner.
Buon Appetito! Tony Sears
6
The iPad Lawyer - Real Secrets To
Presenting With Your iPad In Court
by Scott Grossberg, Esq.
H
ow would your trial, arbitration, and mediation appearances
be different if you could present everything directly from your
iPad? Now imagine you are able to walk about the courtroom or
conference room, hand your iPad to experts and witnesses, and
even show items during a sidebar without any wires. This is the
type of freedom you crave! And it looks almost magical.
Recently, I was presenting in a courtroom. I used my own
projector, accessories, and WIFI setup in order to handle the iPad
wirelessly from anywhere in the department. When I was finished,
the judge asked me to walk him through my configuration and
equipment so that he could see if his courtroom was technologically
outfitted to accommodate anyone who might show up for Trial
with an iPad. When you’re wielding such magical storytelling
tools, this is not an unusual inquiry. While this particular trial
department was well-equipped with its own screen, projector, and
visual capture device, it did not have its own secure WIFI network
nor was it Apple TV capable, yet. (Although, I did hear the judge
exclaim as I strode out of sight, “I will talk to the techies and get
this done right.” - okay, it’s the holiday season, I couldn’t resist!)
December 2012
Now let me digress for a moment. I have been asked by a judge,
“Mr. Grossberg, how do you plan to share this technology with
the other side? You do have a duty to do so.” My response is
simply, “Your honor - with all due respect - I have no challenge
with letting my friendly adversary use my projector, but I cannot
share my hotspot technology with them. While they are free to
hook up to the projector, I have confidential information that is
being passed through my hotspot and if I allow them access to the
hotspot, they can kick me off during my presentation at any time.”
That argument seems to do the trick.
2. Apple TV and AirPlay
In order to use this pack-of-cards-sized awe-maker, you will
be enabling AirPlay. The Apple TV will be wirelessly accessing
your mobile hotspot because the Apple TV and your iPad must
be operating on the same WIFI network. Apple TV will also be
connected to your projector by means of an HDMI cable.
Once hooked up, you will enable Airplay mirroring on your
iPad. You can do this easily by pressing the iPad’s home button
(the depressed round button at the bottom of your iPad device)
twice. Once the menu appears at the bottom of the screen, slide
the menu all the way to the right. You will see the AirPlay option
button. Tap that button, then tap the name of the device you are
using for mirroring (in my case Apple TV), and set Mirroring to
On.
Whether you are presenting for a judge, jury, mediator, or
arbitrator, you will want to be prepared for any type of setting,
configuration, and technology limits you encounter. Naturally, as
I travel about presenting my iPad Lawyer seminar to groups in
various places, I run into all types of location-specific technology
capabilities and shortcomings. It really doesn’t serve me well
to show up to a venue only to find that I can’t show off the
spectacular applications that are available for attorneys. So, after
receiving many requests, here are my secrets for being able to give
a stellar presentation nearly anytime and anywhere.
3. Projectors
LOOK, MA, NO WIRES (well, almost)
As I wrote, nothing looks more wondrous than using your iPad to
show off exhibits, video, slides, etc., without it being “hooked up”
to anything. Obviously, this is my preferred way of presenting.
If you’re using an iPad 2 or later version and running at least
iOS 5, here are the techniques and tools I currently use to create
my wireless storytelling. I say currently because technology is
always changing and I am an early adopter of anything that will
make me more productive.
In addition to the iPad/iPhone dock, my projector has HDMI,
component, and composite video inputs, so you can connect in any
way that you might need.
1. Verizon MIFI Hotspot/iPhone Personal Hotspot
Nowadays, public WIFI is prevalent. My experience, however,
is that it can be painfully slow. More troubling is the fact that it
might not be too secure. As lawyers, oath-driven and entrusted
with our clients’ secrets, we have an obligation to be reasonable
in the use of public WIFI settings. If there have been claims of
concern about sitting in a coffee house and doing mighty lawyerly
things over that public WIFI network, I am certainly not sold on
using even the court’s public trusty WIFI for trial work.
By bringing my own hotspot to a venue, I have a reasonable
assurance of sustained stability, a reasonable expectation of
privacy, and lickety-split connectivity.
Once at your location, turn on your password-protected hotspot.
Presuming you have practiced with your iPad and presentation
equipment beforehand, your iPad will have remembered your
hotspot’s password so you should not have to worry about login
protocols.
I have been using the Epson MegaPlex MG-850HD Projector
for quite some time and I love it! I wouldn’t travel the airways
with it, however, as it is quite heavy at just over 8.5 pounds. That
being said, this powerhouse boasts 720p of resolution and 2800
lumens of brightness (I have used this from counsel table on a very
large screen and the projected image was large enough to be seen
from around the courtroom). And . . . the projector has two built-in
10-watt speakers (very important when you’re playing back a
videotaped deposition or accident reenactment) and a mic input.
Voila! You can now dazzle people!
THE HARDWIRED OPTION (for those times when you’ve
been grounded)
When you don’t have access to a projector that has an HDMI
connection or when your hotspot signal just isn’t stable or readily
accessible, you can still be ready to easily impress. The only
difference will be that you are tethered, thereby cutting back on
your ability to freely walk around the room.
1. Connectors/Adapters
The following discussion is applicable to versions 2 through 4 of
the iPad. Please note that if you use the iPad (4th generation), you
will have to take into account the new lightning connection port as
opposed to the 10-pin connection port found on earlier models.
I carry a connection toolkit with me at all times. Among other
accessories, it includes:
A. Apple Digital AV Adapter (for devices with HDMI inputs)
B. Apple VGA Adapter (for devices with VGA inputs)
I don’t use any other type of connector. For the sake of
completeness, however, you should be aware that there are the
lesser resolution providing Apple Component AV and Apple
Composite AV cables.
December 2012
7
2. Projectors
I mentioned earlier that I use the Epson MegaPlex MG-850HD
Projector because of its connection versatility. If you are not going
to present wirelessly using Apple TV (or a similar configuration),
you don’t need such a projector. In fact, you can use any device that
will take either of the two adapters listed above.
AND IN CONCLUSION
I would be remiss if I didn’t mention that you really can tell the
difference between a VGA and an HDMI connection. In my opinion,
it is well worth the added effort to go the HDMI route whenever
possible.
Finally, for you overachievers who want even more options, check
out these two desktop/laptop applications that run on both the PC
and Mac:
A. Reflection: reflectionapp.com
B. AirServer: airserverapp.com
Both of these programs allow you to mirror your iPad to your
desktop or laptop PC or Mac. With either program running, you
use AirPlay on your iPad just as you would with the Apple TV. As
long as you have a connection between your desktop or laptop and a
projector, you’re in business. I have tried both programs and, for the
moment, have chosen to go with AirServer.
Happy presenting in court . . . and beyond!
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Email: sgrossberg@cgclaw.com
8
T
he November meeting of the Honorable
Joseph B. Campbell Inn of Court was held
on Wednesday, November 14, 2012, at the
Arrowhead Country Club in San Bernardino,
CA.
Commissioner Diane I. Anderson, President,
opened the meeting by introducing Law
Student Member Mark Casey Cunningham.
Casey, as he prefers to be called, is a third
year student at the University Of LaVerne
College Of Law. He received a Bachelor of
Science Degree in Criminal Justice from San
Diego State University. Casey is currently on
the University Of LaVerne School Of Law’s
Mock Trial Team and will compete during the
2012-2013 academic year. He is presently a
Certified Law Clerk for the San Bernardino
County District Attorney’s Office in Rancho
Cucamonga. Casey plans to pursue a legal
career that focuses on public service within
San Bernardino County after he graduates in
2013. Also in attendance were Law Student
Members Justin Crocker and Adrienne
Mendoza.
The November meeting of the Honorable
Joseph B. Campbell Inn of Court is the annual
Bring an Associate meeting whereby members
are encouraged to bring an associate with them
to the meeting who may be interested in joining
the Inn. Four associates were introduced by
their respective sponsoring members bringing
the total number of attendees to 50 for the
meeting.
The membership was advised that this year
the Honorable Joseph B. Campbell Inn of
Court was participating in the National awards
program Achieving Excellence. In an attempt
to receive Platinum Status, Gregory Brittain,
the Inn Counselor, will be submitting an article
seeking publication in the Bencher Magazine
of the American Inns of Court. A call for
articles by members was encouraged as well
with an offer to any member who has an
article published in the Bencher having their
2013-2014 membership dues waived.
Mark McGuire, the Inn Secretary addressed
the membership regarding the Inn’s mentoring
program. He explained that the mentoring
program will focus on the Inn’s Law Student
Members and build outward to Associates and
Masters. Mark advised that a mixer would
be scheduled and that any member interested
in participating as a Mentor could attend the
mixer or could contact Mark directly to engage
as a Mentor.
Donna Connally, the Inn Program Chair then
introduced the speakers for the evening: the
Honorable Christopher B. Marshall, attorney
Michael Bell, attorney Dennis Popka and
attorney Jeffrey Raynes. This distinguished
panel of speakers presented on the topic
ECONOMICS AND THE CHANGING
ROLE OF JUDGES AND JUSTICE. Mr. Bell,
Mr. Popka and Mr. Raynes are all members
of A.B.O.T.A (American Board of Trial
Advocates) and Mr. Raynes was voted Trial
Lawyer of the Year by the California chapters
of A.B.O.T.A. in 2005.
Court’s Budget Reduction:
Judge Marshall advised the membership that
the budget cuts to the California Judiciary are
the most serious and significant in the entire
nation.
From the Desk of the President of the
HON. JOSEPH B. CAMPBELL
AMERICAN INN OF COURT
by Commissioner Diane I. Anderson
As a result of budget cuts, the San Bernardino
County Superior Court Chino District will
close at the end of business on December
31, 2012. The cases heard in Chino will be
reassigned in part to the Fontana District and
in part to the Rancho Cucamonga District.
Effective October 1, 2012, the Needles
District clerk’s office public service hours
will be 8:00 a.m. to 4:30 p.m. Tuesday and
Wednesday during the second full week
of each month and 8:00 a.m. to 3:00 p.m.
Thursday during the second full week of each
month. The Needles District clerk’s office will
be closed on all other days.
Judicial Reassignments will become
effective November 26, 2012.
Three assigned Judges will be leaving the
San Bernardino County Superior Court Rancho
Cucamonga District: the Honorable Ben T.
Kayashima, the Honorable Barry Plotkin and
the Honorable Raymond VanStockum.
Judge Marshall conveyed to the membership
that the Court is in for difficult and ominous
fiscal times. He indicated that the Court will
need the collegiality and cooperation of the
legal community in order to face these very
serious fiscal challenges. It should be noted
that the passage of Proposition 30 will not
improve or help the courts.
Expedited Jury Trials:
Judge Marshall advised the membership that
it is possible to have an expedited jury trial in
the San Bernardino County Superior Court.
An expedited jury trial would be a panel of 8
jurors with 6 jurors reaching a verdict. Each
side is allowed 3 hours of trial time with
trials lasting one to two days. Expedited jury
trials are limited to civil litigation and can
be advantageous in actions such as fender
benders, slip and falls, and unlawful detainers.
Attorney Raynes informed the membership
that expedited jury trials are recognized by
ABOTA towards qualifying for membership
in ABOTA.
Costs of Litigation:
Attorney Bell explained to the membership
that in order to have a civil jury trial a $150.00
non-refundable jury fee per side must be
posted with a demand for a jury which must
be made at the time of the Case Management
Conference. Failure to post this fee will result
in a waiver of a jury trial.
Attorney Bell also informed the membership
that witnesses and in particular expert
witnesses are very expensive. Attorney Raynes
advised the membership that an attorney
should evaluate a case as to expert witnesses
from day one.
Attorney Raynes also discussed with the
membership the financial advantages of
December 2012
representing an institutional client versus
representing a Plaintiff and encouraged
attorneys to ask themselves: “ Can you
compete with attorneys who are representing
institutional clients?” If the answer to this
question is no, Attorney Raynes suggested that
an attorney should consider associating with a
firm instead of turning down a case.
Attorney Raynes shared with the
membership that costs in a Plaintiff practice
are crucial considerations. Not only should
a Plaintiff’s attorney evaluate whether or not
they can compete with attorneys who represent
institutional clients, but the attorney should
also ask, “Is it a good financial decision to take
a case?”
Arbitration and Mediation:
Attorney Popka discussed with the
membership arbitration and mediation
explaining that arbitration is an adversarial
process and mediation is a collegial process.
He also explained that arbitrations and
mediations can be binding or non-binding.
Attorney Popka offered suggestions to
attorneys who may be engaging in the
mediation process, including but not limited
to the following: know the background and
tendencies of your mediator; be realistic with
your offers and demands and give the mediator
a detailed brief in advance of the mediation.
Attorneys should decide whether to share the
brief with opposing attorneys.
The membership learned that mediations are
expensive. An example was given of a recent
mediation that cost $12,000.00; $6,000.00
each side. Mediators’ fees can range from
$600.00 to $800.00 an hour.
Attorney Popka opined that given the current
economic times there will be an increase in the
use of the mediation process.
Attorney Bell advised the membership
that binding arbitration can be a mine field.
Arbitration is not a judicial process, it is
decided under contract and there is essentially
no right of appeal if you receive an adverse
ruling.
The presentation by Judge Marshall,
Attorney Bell, Attorney Popka and Attorney
Raynes was greatly appreciated by the
membership, it was extremely informative and
their graciousness to one another and to the
membership is the epitome of the four tenets of
the American Inns of Court: Civility, Ethics,
Professionalism and Legal Excellence.
Any members wanting to ask further
questions or discuss any of the issues raised by
the panel are encouraged to call the attorneys
or Judge Marshall.
The December meeting of the Honorable
Joseph B. Campbell Inn of Court is the Inn’s
annual field trip. This year the Inn will be
taking a tour of the updated San Bernardino
County Sheriff’s Department’s Crime Lab on
December 12, 2012, meeting at the Crime Lab
at 5:30 p.m. with the tour beginning at 6:00
p.m. Afterwards the membership will gather at
the El Torito Restaurant on Hospitality Lane in
San Bernardino for drinks and appetizers.
For membership information in the
Honorable Joseph B. Campbell Inn of Court,
please contact Membership Chair Kathleen
Patterson at kpatterson@homan-stone.com.
December 2012
is proud to announce that
Hon. J. Michael Welch
has joined the IVAMS panel and is available to provide
you and your clients with services as a Mediator or Arbitrator.
ADR EXPERIENCE:
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IVAMS offers ADR services for all types of cases.
��Please call IVAMS for assignments and availability.
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is proud to announce that
Hon. Michael B. Rutberg
has joined the IVAMS panel and is available to provide
you and your clients with services as a Mediator or Arbitrator.
ADR EXPERIENCE:
��
��
��
��
��
IVAMS offers ADR services for all types of cases.
Please call IVAMS for assignments and availability.
9
10
22nd Annual Red Mass
by Jacqueline Carey-Wilson and Scot Neudorff
M
ore than 100 members of the legal community and
their families gathered at the 22nd Annual Red Mass,
which was held on October 16, 2012. Last year, the
mass was moved from May to October to coincide with the
opening of the annual term of the United States Supreme Court.
The Red Mass is celebrated to invoke God’s blessing and
guidance in the administration of justice. The mass was held
at Saint Francis de Sales Catholic Church in Riverside. Judges,
lawyers, and public officials of several faiths participated.
In the opening procession, David D. Werner carried a
banner depicting the Holy Spirit, the Scales of Justice, and the
Ten Commandments, symbolizing the impartiality of justice
and how all must work toward the fair and equal administration
of the law, without corruption, avarice, prejudice, or favor.
Patricia Cisneros processed into the church with a vase of
21 red roses, in memory of
those members of the Inland
Empire legal community who
had passed away in the last
year, and three additional
red roses for Linda Maynes,
Helen Rodriguez, and Louise
Biddle, members of the Red
Mass Steering Committee who
had passed away in previous
years. The mass was dedicated
to those who serve us in the
armed forces, especially in
Iraq, Afghanistan, and other
places where they are in
harm’s way.
The chief celebrant was
the Most Reverend Rutilio del Riego, the Auxiliary Bishop
of the Diocese of San Bernardino. The Very Reverend David
Andel gave the homily. Rabbi Hillel Cohn, Rabbi Emeritus
of Congregation Emanu El in San Bernardino, read a passage
from Deuteronomy (16:18-22) in Hebrew and then in English.
Bart Brizzee, Second Counselor, Yucaipa California Stake
Presidency, the Church of Jesus Christ of Latter-Day Saints,
read a passage from James (3:13-18). Elizabeth McDonough
Barry offered the Prayers of the Faithful, which included
honoring the members of the Inland Empire legal community
and the steering committee who had passed away. Deacon Luis
Sanchez read a passage from the Gospel of Matthew (5:1-12).
During the homily, Reverend Andel, who is a canon lawyer
with the Diocese of San Bernardino, encouraged us to look at
those “good-hearted people who have approached us seeking
our help and expertise as poor in spirit. We identify ourselves
with the Beatitudes, but let’s look at our clients as such . . . .
Those who are poor in spirit or just plain poor approach us . . .
those who mourn from death, divorce, and injustice; the meek,
the humble, and the timid - unsure how to proceed or where
to go from here, throw themselves at the feet of our expertise,
take our word as gospel. Those who hunger and thirst for
December 2012
righteousness . . . . The merciful? The clean of heart?” Reverend
Andel conceded that these words are “broad generalizations
of the ideal client; but in reality, clients are sometimes very
difficult . . . . Sometimes I am tempted to push people aside
just like I push paper aside, but each individual person is
worth more them all the paperwork.”
According to Reverend Andel, the
challenge in our work is to see that
“behind each piece of paper/brief,
there is a person and a life, a heart, a
soul, a wife, a father, a child of God.”
Reverend Andel encouraged us to put
our faith into practice in this secular
society, so that our witness might be
more credible. In our work, we are
called to be “peacemakers, meaning
that peace might be the result of our
work.”
At the end of the mass, Bishop del Riego gave a blessing
to Michael Scafiddi, the recipient of the Saint Thomas More
Award. Rabbi Cohn, Bart Brizzee, and Bishop del Riego then
each gave a separate blessing to those in the legal community.
At the reception immediately following the mass, Judge
John Pacheco presented Michael Scaffidi with the Saint
Thomas More Award. The Saint Thomas More Award is given
to an attorney or a judge whose
conduct in his or her profession
is an extension of his or her faith,
who has filled the lives of the
faithful with hope by being a legal
advocate for those in need, who
has shown kindness and generosity
of spirit, and who is overall an
exemplary human being. When
speaking about Saint Thomas
More, Pope John Paul II stated that
“this English statesman placed his
own public activity at the service
of the person, especially if that
person was weak or poor; he dealt with social controversies
with a superb sense of fairness; he was vigorously committed
to favoring and defending the family . . . .”
Michael Scafiddi came from humble beginnings. Born in
New York, he was raised in a family of seven children and
graduated from John Jay High School in 1976. He is married
to Darlene, his high school sweetheart and wife of 34 years.
Michael and his family moved to California in October 1979.
After working in law enforcement for 13 years, he attended
California Southern Law School, graduating in June 1996.
In 1997, he was admitted to the California Bar. Since then,
Michael Scafiddi has shown through his works that he is
committed, not only to the practice of law, but also to the
members of both our local and legal community.
Michael is a lifelong Catholic who aspires to live his faith
every day. He has been a member of the St. Adelaide’s Parish
since 1987 and has also been a member of the parish of St.
Joseph the Worker since 2003. Michael served as a member
of the Aquinas High School Board from 2001-2006 and is
a member of Aquinas’s President’s Advisory Board. Due
to his involvement with Aquinas, the school has adopted a
December 2012
www.sbcba.org
11
football award named after him for players who demonstrate
expertise and by encouraging others to do so for the benefit of
the qualities of fortitude and strength. Michael established
those who are less fortunate.
the Scafiddi Family Trust in 2010,
Saint Aelred of Rievaulx was
which donates a full scholarship of
quoted as saying, “Charity may
$7,000 a year to an Aquinas student
be a very short word, but with its
with a financial need who maintains
tremendous meaning of pure love,
a B average, plays a sport, maintains
it sums up man’s entire relation to
good citizenship, and displays a
God and to his neighbor.” Michael
commitment to the community
Scafiddi aspires to live the core values
through volunteer work. Michael
expressed in these words. Michael
and his family have given a 10-year
Scafiddi has demonstrated in the past
commitment to the trust.
and continues daily to demonstrate
Michael’s family has established a
the qualities of a person deserving
second trust of $100,000 which gives
of the Saint Thomas More Award.
installments of $10,000 a year over
The Red Mass Steering Committee
a ten-year period to Cedar House
was pleased to recognize Michael
Rehabilitation Center. Cedar House
Scafiddi for his extraordinary service
Darlene, Chloe, Megan, and Michael Scafiddi
is a 125-bed facility in Bloomington
and devotion to church, community,
focused on drug and alcohol treatment.
and justice.
The trust was established in memory of Michael’s brother,
The Red Mass Committee is accepting nominations for the
Joseph, who passed away in 2009 as a result of alcoholism.
2013 Saint Thomas More Award. The award will be given at
Michael has served as the Vice-President of the San
the reception following next year’s Red Mass, which will be
Bernardino County Legal Aid Society and has served on its
held in October 2013. If you have any questions or would like
Board of Directors since 1997. In 2008, Michael became the
to be involved in the planning of next year’s Red Mass, please
President of the San Bernardino County Bar Association.
call Jacqueline Carey-Wilson at (909) 387-4334 or Mitchell
During his term as President, he and the other bar association
Norton at (909) 387-5444.
officers initiated and successfully established the “We Care
Jacqueline Carey-Wilson is deputy county counsel for San
Mentoring Program” for area lawyers.
Bernardino County and co-chair of the Red Mass Steering
On October 14, 2010, Michael was the recipient of the
Committee.
Kearney-Nydam Award. This award is given to members of
Scot Neudorff practices criminal defense in Riverside and
the community who have best exemplified the high purposes of
San Bernardino Counties and is an associate with the Law
the Legal Aid Society by generously giving time, energy, and
Office of Michael Scafiddi.
Judge Pacheco, Jim Heiting, Judge Schneider and Gary Smith
Jackie Carey-Wilson and David Werner
Mike and his mother, Gladys Scafiddi
Bishop Rutilio del Riego and Rabbi Hillel Cohn
12
MEDIATION
IN CIVIL & FAMILY CASES
THE CARE AND FEEDING OF TRIAL COUNSEL
By Donald B. Cripe
M
ediation of Civil and Family Law cases is becoming more
popular, particularly under the cloud of overwhelmed and
under-budgeted Superior Courts. Yet it appears that many trial
lawyers avoid or thwart the process for a number of reasons, some
of which are unwise and possibly not in the best interests of the
clients. This article is intended to try to encourage trial counsel to
see the real benefit of the Mediation process for the client and to
view the mediation process as a very positive dispute resolution
process.
CONDUCT OF COUNSEL
Counsel has an absolute duty to act in the best interests of clients.
Chapter 3, The Rutter Group, Professional Responsibility at 3:
187.1 states: “A lawyer’s duty of loyalty goes beyond the scope
of the CRPC requirements: ‘It is ... an attorney’s duty to protect
his client in every possible way, and it is a violation of that duty
for him to assume a position adverse or antagonistic to his client
without the latter’s free and intelligent consent ... By virtue of this
rule an attorney is precluded from assuming any relation which
would prevent him from devoting his entire energies to his client’s
interests.’ (Santa Clara County Counsel Attys. Ass’n v. Woodside,
(1994) 7 Cal 4th 525, 548)” (See also B&P Code § 6068; RPC
3-500, 3-510, among others)
“I never settle cases because I can get sued…” one seasoned
attorney recently said to me. “It is better to let a judge decide so I
don’t have the responsibility…” said another. The most over-used
I have heard is “I can’t let my client do that…” And the most
incredible example comes from a recent mediation conducted by
a colleague in which the mediator crafted a truly amazing solution
that would have returned the plaintiff far more than it would have
appreciated at trial without the risks inherent. The only thing
the settlement did not provide was the payment of attorneys’
fees to the plaintiff’s attorney. The attorney refused to carry the
settlement offer to the client because he was not going to get paid
by the defendants.
It is true that some cases have to be tried for a variety of reasons.
However, it is likewise true that the vast majority of civil and
family cases should be, and many are, settled. Unfortunately,
the settlement rate is far too low forcing cases to be set for trial
thereby adding to the backlog of cases and the “rush” to get cases
tried when they do get a courtroom. The situation puts a particular
burden on those cases that need to be tried and because of the rush
to the open courtroom, probably fails the litigants.
The final analysis for counsel has to be, “whose case is it?” Counsel
absolutely must protect the client from the abuses of the opposition,
the client’s unfamiliarity with the litigation process and from
unscrupulous acts committed by the opposition. That said, it is not
an attorney’s responsibility to assert his or her personal judgment
over that of the client. It is the attorney’s absolute responsibility to
advise the client on the law and what the possibilities, both good
and bad, may be with respect to the case. But no more would we
tell the client what to plant in his garden should we tell a client
whether or not to accept a “deal” to settle the case. Most believe
that counsel must look at the long-term outcome, i.e., what is it
going to cost the client compared to what the client is going to net
at the end? This, in mediation terms, is called “net to client.” There
is very little justification for an attorney to push a case to trial
when the same case could have been settled at far less expense to
December 2012
the client at mediation or at any other time. Additionally, it seems
to be a very risky proposition for an attorney to advise a client to
try a case unless that attorney can and will guarantee an outcome.
Of course, that is an even more risky position or an attorney.
It is also true that when lawyers negotiate settlements, particularly
when some client “arm twisting” is necessary, the specter for
malpractice looms for months or years thereafter. No practicing
lawyer has been able to avoid the influence upon clients that
neighbors, family and friends who know someone who had
an “identical” case, irrespective of the facts and applicable
law. Consequently, counsel are all too often second-guessed
after-the-fact when a client tells its friends about a settlement.
That second-guessing sometimes can lead to bar complaints and
civil lawsuits. However, the California courts have fashioned
relief from this fear whenever an attorney formally mediates a
case with the participation of his client. The California courts and
the statutory scheme providing for mediation have created very
strong protections for the attorney and, for that matter, the client.
The most significant cases addressing these issues are Cassel v.
Superior Court, (2011) 51 Cal. 4th 113, 119 Cal. Rptr. 3d 437
reaffirming and reinforcing Wimsatt vs Superior Court, (2007) 152
Cal.App.4th 137, 61 Cal.Rptr.3d 200, discussing Cal.Evid.Code §
1115 et seq. (cf. California Assembly bill AB 2025) Wimsatt was
a legal malpractice action that arose out of a mediated settlement.
The court held that since mediation was a confidential (i.e. the
misused term “mediation privilege”) proceeding, none of the
matters directly involved with the mediation upon which the
plaintiff sued, were admissible. The court ordered a protective
order in favor of the attorney prohibiting discovery of those
documents upon which the client relied. Ultimately, the case
was resolved in favor of the attorney. The subsequent Cassel
opinion by the California Supreme Court extended the mediation
“privilege” to the downright egregious conduct of counsel in the
“course of” mediation.
Thus, though an attorney can always be sued by a disgruntled
client, submitting a case that should be settled to the mediation
process not only enhances the client’s potential of obtaining
a satisfactory outcome but also protects the attorney from the
phenomenon sometimes referred to as “buyer’s remorse” on the
part of the client.
Those of us who want the court to make a decision because we
do not want to bear the responsibility for the outcome of the case,
are also best served to take cases to mediation. In mediation,
depending upon the approach taken by the mediator, the client
ultimately makes the decision of whether or not to settle the case
with the advice of counsel and the input of the mediator. Thus, if
your mediator is taking and “evaluative approach” and tells the
client the weaknesses of his or her lawsuit, the case is more likely
to be settled while protecting the interests of both counsel and
clients.
The above begs the question, “how is a mediated settlement
agreement enforceable by the court if the process is confidential?”
The answer is revealed in The Estate of Thottam, (2008) 165
Cal.App.4th 1331, 81 Cal.Rptr.3d 856. Basically, a trained mediator
should be able to craft an agreement that avoids this difficulty and
renders the agreement admissible for the purpose of enforcement.
However, it does not in any way remove the protections provided
in Cassel and Wimsatt. However, caution must be taken to avoid
the difficulties encountered by the parties and counsel in Davis vs
Rael, (2008) 166 Cal.App.4th 1608, 83 Cal.Rptr.3d 745. In that
case, the individuals who crafted the settlement agreement did not
incorporate the language necessary to allow it to be admissible for
the purpose of enforcement. As a consequence, the enforcement
action (basically a CCP §664.6 action) was dismissed and relief
was unavailable. Mediation is a safe and effective way to resolve
even the most difficult cases if the cases are presented by attorneys
who are prepared to mediate to a professional mediator who knows
what he or she is required to do for the protection of all involved.
December 2012
The unpublished, non-citable case, Marriage of Beetley, 2009 WL
1238785 (Cal.App. 2 Dist.)), offers a very good recitation of the
mediation process.
It should be clearly understood that the Mandatory Settlement
Conference process and other forms of ADR specifically do
not provide the same level of confidentiality and protection as
the mediation process. In my experience, MSCs tend to be less
successful because the information exchanged may be admissible
at trial.
A long time ago a senior colleague of mine said that being
litigation counsel is one of those careers in which (the least on an
individual case basis) if we do our job correctly, our income stops.
While that is true on individual cases, I suspect that if the word
gets around that a certain attorney gets cases resolved efficiently,
quickly and inexpensively (relative to going to trial), that attorney
will find that business will increase. Not many know that
Abraham Lincoln was not only a very practical trial lawyer but an
attorney who urged mediation, as well. When asked by others if
mediating cases and peace-making wouldn’t hurt his law practice,
he said, “There will still be business enough.” Lincoln urged
mediation in his largest cases. In the Superfine Flour case, though
he had a very good case to litigate, he told his client: “I certainly
hope you will settle it. I think you can if you will....” “By settling,
you will most likely get your money sooner; and with much less
trouble and expense.” With respect to most cases Lincoln said,
“Persuade your [clients] to compromise whenever you can. Point
out to them how the nominal winner is often the real loser--in fees,
expenses and waste of time.” (All quotes dated circa 1850)
The point is that if we are truly thinking of our clients’ best
interest, settlement, one way or another, is most often the best
way to go. The last example (above) of a comment by trial counsel
related to his ability to collect attorney’s fees should go without
too much discussion. For an attorney to put his financial interests
ahead of the client’s best interest is professionally reprehensible.
In that particular case, the “little guy” client would have left the
mediation in a position far superior to that at which he will now
likely find himself after trial simply because the attorney wanted
to make sure that he got paid first.
As in most situations, the conduct of counsel is critical in
mediation.
It is the nature of the trial attorney to be somewhat possessive with
ELWOOD M. RICH
JUDGE OF THE SUPERIOR COURT (RET.) JUDGE
FOR 28 YEARS
MEDIATIONS ARBITRATIONS INDEPENDENT ADR
(951) 683-6762
CALIFORNIA SOUTHERN LAW SCHOOL
3775 ELIZABETH ST. RIVERSIDE CA 92506
13
his or her case. My observation is that this is particularly true in
family law matters where the majority of the litigants are far less
sophisticated than they may be in civil matters. Thus, family law
counsel frequently resist mediation for the apocryphal reason that
though they may be able to take criticism from the bench or differ
wildly from the opinions and perspectives of opposing counsel,
they tend to not want to voluntarily submit to a neutral evaluation
or the input of a family law mediator or arbitrator. For reasons that
frequently escape me, those of us who practice in the family law
courts strenuously resist formal ADR for settlement. The analysis
in this article applies here just as it does in civil cases. Who
benefits from resisting ADR? Is it the attorney for the client?
Family Law attorneys frequently overlook the benefit of Family
Code §2554, which gives the Family Law Bench discretion to
order some cases to Judicial Arbitration to determine property
issues. The process is almost identical to the Civil Judicial
Arbitration process. “In any case where the parties do not agree in
writing to a voluntary division of their community estate, the court
may order the issues of characterization, valuation and division to
be submitted to judicial arbitration pursuant to CCP § 1141.10…”
(See The Rutter Group: Family Law, Chapter 8, §§8:970 et seq)
and all cases may be submitted by stipulation to Arbitration of
those issues, thereby saving the clients time and money. Instead
of a wait of 5 months for a trial, the matter could be completed in a
matter of weeks. If counsel is reluctant to submit to ADR because
of the cost, I submit that even engaging the services of a private
Arbitrator/Mediator will be less expensive than trying the same
issues.
If we are determined to take a case to trial irrespective
of the net outcome to the client, we are doing our clients an
incredible disservice. Most family law clients want the case to be
over with but want to feel like they are getting a fair deal. Most
of them (sometimes appropriately) distrust opposing counsel and
sometimes even believe that their own attorney is in league with
the opposition for the benefit of the lawyers. In those cases, if
the matter is submitted to mediation, not only is the overall cost
to the client generally less than if the case is tried, but the client
should be able to air his or her concerns to a neutral party and, at
the end of the case, know that he or she had a substantial say in the
outcome of the case. Furthermore, the lawyer is relieved of much
potential acrimony from the client. Family law lawyers could be a
little less territorial in these matters.
PREPARATION
Before I realized the efficiency and effectiveness of the mediation
process, I, like many of my colleagues, sometimes elected
mediation as our ADR of choice solely to avoid the “downside” of
judicial arbitration, i.e. discovery cutoffs, premature preparation,
etc. After all, we had to go to ADR, anyway, and everyone knew
that case is never resolved in that process, so why not take the
easy way out? As it should have been at that time, the answer
is obvious. If counsel has an opportunity to resolve case more
quickly and efficiently for the client, he or she has an absolute
duty to prepare and be ready to present the client’s case to the
arbitrator or mediator. Just because the mediation does not
result in some kind of finding or order (though it may result
in an enforceable stipulation), the mediation proceeding is not
rendered unimportant. One of the purposes of mediation is to
try to get cases resolved before there are huge expenditures for
discovery, depositions, etc. That said, there should still be enough
investigation and discovery completed to allow the proceeding
to go forward. I have mediated several hundred cases. With the
exception of the relatively few cases in which the parties were
simply too entrenched to negotiate in good faith, the only cases
that have had to be continued or the mediation simply adjourned
were those in which the excuse of counsels for not being able to
negotiate was a lack of investigation and discovery.
(continued on next page)
14
Counsel should look at it this way: if
preparation will assist in settling the case, it
should be done and even if the case doesn’t
settle, counsel will be better prepared
to proceed either to another mediation,
mandatory settlement conference or trial.
There is never a downside to preparation in
order to meet the needs of the proceeding.
In the infancy of mediation the Superior
Court Judge in Riverside who ran the
program (either before Confidentiality was
the standard or in spite of the standard)
would routinely check a box on the form
he carried with him during mediation
requesting the trial court to set an order
to show cause for sanctions against any
attorney who was unprepared or refused
to cooperate. I am a loyal adherent to the
confidentiality standard but I will admit
that there are times that I would love to
be able to march over to the trial judge to
tell the him or her that an attorney or the
attorneys were being boneheaded. Though
that is not the appropriate course to take,
if counsel would refer back to their duty
to the client to competently represent the
client’s best interest, counsel would be
prepared to submit cases to mediation
and to attend mediation well-prepared to
negotiate in good faith with the goal of
resolving the case.
SETTLEMENT
More often than not the actual parties
to litigation are far more interested in
resolving a case than going to trial. If a
settlement opportunity is presented, that
settlement opportunity should be explained
to the client along with the net outcome
and savings of time and avoidance of the
continuing stress of litigation. While I was
still actively litigating cases, I enjoyed
trial. It provided a marvelous adrenaline
rush and, when we prevailed, fed my
ego tremendously. At the time I failed to
appreciate that no matter how great I felt,
the client was generally just happy to get
it over with. And if we lost at trial, all
the wonderful feelings from the previous
victory dissolved but the client was still just
glad to get it over with. When considering
whether or not your case should go to
mediation, think very carefully about the
best case and worst-case scenario for your
client, win or lose. That consideration
should include the cost and risk to the
client. I strongly believe that if cases are
analyzed in a businesslike manner, the
answer should be obvious.
THE BENCH
One critical element in the ADR process is
our bench officers. If bench officers view
ADR as a necessary evil before they can
send the case to trial or, in family law cases,
as matters to which no one would agree,
they can be as much of an impediment to
the process as counsel and the parties. We
are fortunate that in Riverside we have
civil bench officers who see the benefit
in promoting ADR and, most specifically,
mediation. If the bench assumes the
attitude that ADR, specifically mediation,
is ultimately in the best interest of the
litigants and the bench will encourage the
process not only through ADR literature
provided at the time of filing, but also
from the bench at the beginning of every
morning calendar, the ADR process will
be enhanced. If the attorneys and litigants
believe that the bench is indifferent to
the ADR process, why should they show
any interest or why should they have any
confidence in the process?
Litigants and, though to a lesser extent
counsel, look to the bench for guidance
and confidence that someone is hearing
them and cares about their cases. If the
bench can make it clear or at least give the
impression that the bench has confidence
in the ADR process, I believe that the
perception will be contagious.
NOW WHAT?
When considering how to proceed in a
civil or family law action, I encourage
counsel to seriously consider mediation
under the supervision of a trained and
experienced mediator. If during that
process counsel has questions or concerns
as to how they or their clients will benefit
from the process, counsel should contact
a mediator they would consider for their
case for the purpose of finding out how the
process would proceed and what to expect.
Most mediators who are serious about their
profession will be happy to provide any
information to assist counsel in making the
decision.
December 2012
Contract Attorney
Workers Comp / PI
Applicant, Plaintiff & Dr. Depos
Depo Preps
Hearings
Status Conferences
CMCs, MSCs
Mediations / Arbitrations
Alan L. Siegel, Esq.
951-675-6008
alssiegel@gmail.com
REFRENCES UPON REQUEST
EPILOGUE
In the months since this article was
originally authored, a number of chances
have taken place legislatively and as a
matter of local procedure (in the California
Courts). As of January 2013 the California
Family Courts will implement new law
that will route cases through a more
rigorous ADR process than has ever
before been available. The budget “crisis”
has forced the civil courts to reexamine
their enthusiasm for mediation in the
ADR process. Unfortunately, the state
of the law is that many bench officers
believe that they cannot “order” a case to
mediation if it requires the litigants to pay
for mediation services. Combine that with
a lack of funding for this essential element
of litigation which makes experienced,
qualified mediators generally inaccessible
through the courts. Until such time as
counsel recognize the essential nature
of the mediation process for the benefit
of their clients, mediation may remain
the unwelcome cousin of litigation thus
depriving litigants a fast, efficient and cost
effective means for the resolution of their
cases.
In sum, mediation is being vastly
under-used for dispute resolution.
Donald B. Cripe is a retired trial lawyer
and full time ADR professional. Mr.
Cripe is a principal and panelist for
California Arbitration & Mediation
Services.
December 2012
15
CLASSIFIED ADS
SERVICES
DID YOU KNOW? Numerous factors can result in CPS
reports that contain biased, skewed, or inappropriate
conclusions and recommendations. If your client has
had involvement with CPS and those records may be
used in your case, contact me for a FREE consultation.
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Markel, MC: 909-389-8051; info@mlmarkel.com;
www.mlmarkel.com
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EXPERIENCED
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ATTORNEY
– Expertise in Criminal/Immigration Defense. ICE
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Immigration Court hearings? Call Today! Rogelio
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ROVING REPORTERS, Cert’d Shorthand Reporters.
We provide exp’d., highly qual. crt reporters srvg all
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summary judgment motions, oppositions. Am. Jur.
Award Adv’d Lgl Research and Writing. Superlawyers’
Rising Star. Member, U.S. Sup. Court. Law Offices
of A. Gina Hogtanian. (818) 244-7030. Website:
hogtanianlaw.com. Email: gina@hogtanianlaw.com.
OFFICE SPACE
HOLSTEIN PROFESSIONAL BUILDING. 3 Office
suites available for lease - 895 square feet to 8,884
square feet. $1.15 per square foot. Lease terms are
1-3 years. Tenant improvements negotiable. Minutes
from downtown Riverside. On site parking. Easy
freeway access to the 60, 215, 91. Contact Rene
Berger at KRB Properties to schedule a walkthrough.
Phone (949) 548-0040; Cell (714) 336-8559; email
krbprop@aol.com
TWO OFFICES FOR RENT/LEASE, located in the
penthouse of Vanir Tower. Close proximity to the local
courts; has covered parking. Very affordable. Excellent
for single attorney with an assistant,or two attorneys
and one assistant. Please contact Edwina, Brian or
Alyssa at 888-8800.
ATTORNEY LOOKING FOR A FURNISHED
OFFICE in the Loma Linda area to meet with clients.
Meetings may be during normal, evening, or weekend
hours. Currently looking to rent 10 hours or less a
month. No need for conference room or receptionist.
If interested please contact Ken at 909-255-6116 with
location and desired rental arrangement.
22545 BARTON RD., GRAND TERRACE. Rents start
at $600; 565 to 1300 sf. No CAM charges. Convenient
to both Riverside & San Bernardino Courts, located
between the two. Contact Barry @ 951/689-9644
OFFICE FOR RENT IN YUCCA VALLEY, CA: 700
sq. ft. with private restroom. Excellent location. Also
available in Yucca Valley, office sharing opportunity for
well qualified professional in existing law practice, with
private office, support staff area, kitchen and waiting
area. Call: (760) 401-0783.
REDLANDS OFFICE SUITES FOR LEASE / 1980
Orange Tree Lane, Redlands. Lease rate: $1.65
FSG. Suites available from: 1,492 sq. ft. to 12,305 sq.
ft. Call Roger @ (909) 518-0343. Roger Thompson
CA. DRE 01310608.
CONFERENCE ROOM AVAILABLE for rent in
Victorville. $100 to $150 per day. Call Shirley at
Medeiros & Associates (760) 245-4034. 14390 Park
Avenue in Victorville. www.medeiroslaw.com.
OFFICE SUITES AVAILABLE: Riverside County Bar
Association Building, 4129 Main Street, Riverside
Downtown Justice Center. Contact Sue Burns at
(951)682-1015.
THE LAW OFFICE OF STEPHEN J. HANSEN, in
Chino, handles Family Law, Chapter 7 Bankruptcy, and
DUI defense. I am available for special appearances
at reasonable rates. My phone is 909/393-1876, Fax
951-270-1935.
RANCHO CUCAMONGA OFFICE SPACE available.
Walking distance to the Ranch Cucamonga Superior
Court House. The lease can be the first floor of approx.
3,500 sq. ft. or can be subdivided into 2 offices of
approx. 1,200 sq. ft. and 2,300 sq. ft. CONTACT Brit
Barker at 909/980-1996.
COX INVESTIGATIONS: Criminal Def. Personal
Injury, Accident Investigation, Evidence Photography.
Retired CHP. PI License #24367. 909/387-0077.
www.coxpi.com
CPA FORENSIC ACCOUNTANT, Howard E.
Friedman. Business Valuations, Cash Flow, Separate
vs. Community Property Tracing. Court-Appointed
Expert, Receiver, Special Master. Call 909/889-8819
Fax 909-889-2409 454 N. Arrowhead Ave., San Bdno,
CA 92401.
ALAN R. SIMS APPRAISING - Comml, Residential,
Estates, Litigation, Divorce, Ins., M&E. 909/584-8820.
Appraiser@alansims.com
HI-CALIBER PRIVATE INVESTIGATIONS: State
licensed/insured private investigations firm. Located
in downtown Redlands. Nat’l Board Certified in Crim.
Defense. Family & civil law.(Ca Lic 23442.) 18 E. State
St., #208, Redlands, CA 92373. Phone: 909/792-0999;
www.hi-caliber.org
LAW OFFICE OF CHRISTIAN ANYIAM: Full service
law practice handling civil, family, real estate, labor/
emp., PI, immigration, and contract law. We also make
special court appearances. Call 909/383-9500.
ATTORNEY w/more than 10 years exp. in Civil
Litigation, Real Estate, Business Litigation and
Appeals. avail. for research/writing projects, law &
motion, depos, discovery, and appearances. Glenn A.
Williams - 951/817-7829.
FAMILY LAW - CIVIL LIT. ATTORNEY avail. for contract
work: court hearings, research, trial assist., prep of
motions, mediations. Ugo-Harris Ejike: 909/890-9082.
LEGAL SECRETARY, Ellie’s Legal Secretarial Service,
350 W 5th St., #202, S.B. CA, 35 years exp. Prep of most
court forms, Guardianships, Fam Law, Evictions, Grant
Deeds, Restraining Orders, Notary Public. 909/885-1725.
CIVIL AND CRIMINAL APPEALS & WRITS. Stanley W.
Hodge, Attorney at Law. 15490 Civic Dr. #204 Victorville,
CA 92392 760/951-8773.
EXP’D FAMILY LAW PARALEGAL / Legal Secretary
available on a contract basis. For immediate assistance,
call (951)734-6524 or e-mail Slopez7267@aol.com.
FOR SALE: Redlands Office Building, 1174 Nevada Street
(off Orange Tree Lane). 8,344 Square feet, with 5,100 sq.
ft available on ground floor for owner/usesr occupancy.
Asking $899,000. Will review all offers. Roger Thompson,
Wallendar Commercial RE. 909/792-3550 X 2.
FOR SALE
FOR SALE Beautiful 10’ conf. table w/glass top &
12 upholstered chairs, library table, legal size filing
desks, wood desk w/glass top, exec. desk with three
brown tufted leather chairs, two matching credenzas,
two McDowell Craig tanker secretary desks. All
in excellent condition. Contact Ron Skipper at:
skipper@eee.org or home (909) 882-2163.
CLOSING LAW OFFICE – The following items are
available for sale: 1) One large dark wood desk
(approximate 10’-12’ in length); 2) One black leather
office chair (to go with the desk); 3) Two office
chairs, black leather & wood; 4) Two bookshelves
(approximately 4’ high x 4’ wide) and 5) One long
dark wood credenza (approximately 12’-14’ in length
x 3’ high). You pick up. Items are located in the Vanir
Tower on the 9th floor at 290 North “D” Street, San
Bernardino, California. To make an offer on any of
these items, please call Brian Cullen’s office and ask
to speak with Edwina Lenoir (909) 888-1000 or call
and leave a message for Tom at (909) 225-5193.
NOTICES
CONFIDENTIAL HELP! Judges & Attys in trouble
w/alcohol, drugs. 800/222-0767; 909/683-4030, 24
hours-7 days a week.
SBCBA Members: Advertise FREE for 6 mo.
in Classifieds. Continue ad for $10 per month in
advance. Non-members $10 a month in advance.
909/885-1986 or email bulletin@sbcba.org.
CONFERENCE ROOM AVAILABLE for depos, etc.
at SBCBA office. 1 block from courthouse. $100 day;
$50 half day. Discount rates to SBCBA members:
50% off regular rate; free for conferences 1 hour
or less. 909/885-1986. Plenty of FREE PARKING.
Center for Effective Dispute Resolution
CEDRS
January 25th-26th 2013 Mediation Training Event
You are cordially invited to this two (2) day event in January 2013. With the new year
approaching fast, why not brush up on your mediation skills and get a jump start to welcome the new year. Presented by Robert Tessier, Esq. & Charles Parselle, Esq.
Advanced mediators will focus on negotiation, with specific tips as how to get the negotiation started toward a path to settlement, and specific techniques to keep the negotiation on track. This exclusive course will be organic and interactive, focusing less on
the theoretical and more on the specific ways that professional mediators help the parties achieve a settlement.
When: January 25th and 26th
9:00 A.M. to 5:00P.M.
Where: University of Redlands
9680 Haven Avenue, Suite 150
Rancho Cucamonga, CA. 91730
Please R.S.V.P by calling 909.798.7117 or Mediation.CEDRS@gmail.com
If registered by December 12, 2012 Class fee is $399.00
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Hurry Seats are limited!
16
BULLETIN
of the
December 2012
Workers’ Compensation/Social Security Disability Issue?
MAYBE WE CAN HELP!
San Bernardino County
Bar Association
“California’s Oldest Continuously Active
Bar Association”
Organized December 11, 1875
In Affiliation with the
High Desert Bar Association
2012-2013 Board of Directors
Donald F. Cash, Donna V. Siofele, Francisco T. Silva, Darla A. Cunningham, Scott M. Rubel
OFFICERS
We have over 70 years of experience in representing injured and disabled workers before the
Workers’ Compensation Appeals Board and Social Security Administration. If you have clients who
need help with Workers’ Compensation or Social Security problems, please have them call our
office for a free consultation. We pay referral fees in accordance with State Bar Rule 2-200(A).
Kevin B. Bevins
President
John R. Zitny
President-Elect
STATE BAR OF CALIFORNIA / BOARD OF LEGAL SPECIALIZATION
Jack B. Osborn
Lerner, Moore, Silva, Cunningham & Rubel
Vice-President
Secretary-Treasurer
Jennifer M. Guenther
Immediate Past President
DIRECTORS-AT-LARGE
Hon. Diane I. Anderson
Hon. Khymberli S. Apaloo
Victor J. Herrera
Barbara A. Keough
Eugene Kim
Michael Reiter
John W. Short
Sandy L. Turner
Executive Director
Claire E. Furness
“The mission of the San Bernardino County Bar
Association is to serve its members and
the community and improve
the system of justice.”
555 North Arrowhead Avenue
San Bernardino, CA 92401-1201
(909) 885-1986 Fax: (909) 889-0400
E-mail: bulletin@sbcba.org
Web: www.sbcba.org
T
WORKERS’ COMPENSATION LAW CERTIFIED SPECIALISTS
Bradley R. White
he Bulletin of the San Bernardino County Bar
Association is published 11 times a year. Our
circulation is approximately 1,100, including: our bar
membership of 900, 95 state and federal judges, state
&local bar leaders, legislators, media, and businesses
interested in the advancement of our mission.
Articles, advertisements and notices should be received
by the bar office no later than the fifteenth of the month
prior to the month of publication. For current advertising
rates, please call the number listed above. Please direct
all correspondence to the above address.
Ph: 909/ 889-1131• Fax: 909/884-5326
141 North Arrowhead Avenue, Suite 1
San Bernardino, California 92408-1024
www.injuryatwork.com

December 2012 - San Bernardino County Bar Association

Transcription

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