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30 Years 30 Years1988 • Lawyer Referral Service • 2018

Rancho Soquel

Site of the Fall Fling

A Publication of the Santa Cruz County Bar Association and Lawyer Referral Service Fourth Quarter 2018

In This Issue:

Insights from our Local Research Attorneys Avoiding Legal Malpractice Claims Rethink Quitting or Retirement The Roberts Court And more!

BAR BRIEFS

2Santa Cruz County Bar Association October, November, December 2018

340 Soquel Avenue, Suite 209Santa Cruz, California 95062tel 831-423-5031 / fax 831-423-6202email sccbar@sbcglobal.netwww.santacruzbar.orgwww.lawyerreferralsantacruz.org

President: James Eschen: 458-0502President-Elect & Treasurer Emily DuBois: 458-0502Past President: Burleigh Cooper: 423-5031Secretary: Eric John Nelson: 588-4818Directors At Large: Angela Hoyt: 479-6217 Aaron Mohamed: 462-6391 Andrew Janecki: 459-0427 James Rummonds: 688-2911 Ashley Wheelock: 471-7170

Executive Director: Lolly Belanger: 423-5031Editor: James Eschen: 458-0502

Newsletter Layout/Design: Evelyn Volpa: 685-3314

Bar Briefs is published four times each year by the Santa Cruz County Bar As-sociation, Inc. (SCCBA). The opinions expressed herein do not necessarily represent the opinions of the SCCBA, its officers, directors, members, or the editor.

Editorial submissions to Bar Briefs are welcome. However, we accept no responsibility for the custody or return of materials submitted for publication.

All submissions for publication become the exclusive property of SCCBA. All rights reserved.

Advertising rates and policies are made available by the SCCBA Board and Executive Director. Acceptance of advertisments for publication does not constitute an endorsement or recom-mendation of products or services advertised.

Copyright © 2018 SCCBA

Santa Cruz CountyBar Association

Calendar ........................................................... 03

President’s Message ......................................... 04

Articles

Why I am a Member of LRS ........................... 05

LRS 30th Anniversary ..................................... 07

Insights From Our Local Research Attorneys ... 12

Avoiding Legal Malpractice Claims .................. 16

Rethinking Quitting or Retirement ................. 20

The Roberts Court ......................................... 22

Bench Bar Liaison .............................................. 18

Events/Photos

Golf Tournament ............................................ 10

Fall Fling ....................................................... 14

Member Spotlight ............................................. 09

Anderson Christie Real Estate ............................................ 19

Burton, John -Attorney ...................................................... 08

Burton, John - Monterey Bay Mediation Services ............... 21

Creekside Court Reporting ..................................................21

Hartsell Olivieri - Shorthand Reporting .............................. 08

Haussler, Lu - Mediation .................................................... 17

JAMS - The Resolution Experts .......................................... 06

Premo, Steve - Legal Research/Writing .............................. 09

Sayler Legal Service ........................................................... 13

Stone, Larry, MFT .............................................................. 09

TABLE OF CONTENTS

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2019 SCCBA Membership Renewal

The membership drive starts in November. Look for your mem-bership email reminder or go online to renew at: https://www.santacruzbar.org/for-lawyers/sccba-membership-application/

mailto:[email protected]

www.santacruzbar.org

www.lawyerreferralsantacruz.org

https://www.santacruzbar.org/for-lawyers/sccba-membership-application/

https://www.santacruzbar.org/for-lawyers/sccba-membership-application/


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SCCBA Real Property SectionAttorney Gary Redenbacher speaks on “Coastal Access and the Martin’s Beach Case.” 7:15 a.m. at the Back Nine Restaurant. Cost: $29.00 (whether or not you eat breakfast) plus an additional $10.00 for MCLE credit. RSVP to Edward Chun at [email protected]. Checks made payable to Penrose Chun & Gorman LLP, 1200 Pacific Avenue, Suite 260, Santa Cruz, CA 95060.

SCCBA Carmela Woll, Esq. presents “Hiring and Employment Practices for Lawyers and Law Firms.” 12:00 – 1:15 p.m. at the Pino Alto Restaurant at the Sesnon House, 6500 Soquel Dr., Aptos, CA. One unit MCLE general credit. Cost is $35 for members; $40 for non-member attorneys, $30 for judges and non-attorney members. Limited Seating! No Late Registrations or Walk-Ins. RSVP by October 2 at www.santacruzbar.org or contact SCCBA, 831-423-5031 or [email protected].

The Advocates Regular monthly meeting at 5:30 p.m. at Red Restaurant and Bar, 200 Locust St., Santa Cruz. Learn more at https://theadvocates-santacruzbar.org/.

SCCBA Estate Planning Section“Documentary Transfer Tax and the New Building Homes & Job Act Fee” presented by Sean Saldavia, Santa Cruz County Assessor-Recorder and Carol Sutherland, Santa Cruz County Assistant Recorder. Speakers will discuss taxes and fees when recording your documents. Back Nine Restaurant. 7:15 a.m. $20.00 annual dues (October through May) and $29.00 for breakfast. $11.00 for coffee only. An additional $10 if you want MCLE credit. Advance registration and payment required. If you have questions, call or email Emily Buchbinder, 831-426-8484, [email protected].

Bench Bar Meeting12:00 p.m., Dept. 5, Santa Cruz Superior Court. Send agenda items to [email protected].

SCCBA Justice Richard McAdams and attorney Nathan Benjamin present an “Ethics Refresher.” 12:00 – 1:15 p.m. at the Back Nine Restaurant, 555 Hwy 17, Santa Cruz. One unit MCLE ethics credit. Cost is $35 for members; $40 for non-member attorneys, $30 for judges and non-attorney members. RSVP by November 2 at www.santacruzbar.org or contact SCCBA, 831-423-5031 or [email protected].

The Advocates Regular monthly meeting at 5:30 p.m. at the Olitas Cantina & Grill, 49B Municipal Wharf, Santa Cruz. Learn more at https://theadvocates-santacruzbar.org/.

SCCBA Real Property SectionAttorney Robert Derber and others will speak on “Rent Control, Just Cause Evictions, Measure M, and What’s Next.” 7:15 a.m. at the Back Nine Restaurant. Cost: $29.00 (whether or not you eat breakfast) plus an additional $10.00 for MCLE credit. RSVP to Edward Chun at [email protected]. Checks made payable to Penrose Chun & Gorman LLP, 1200 Pacific Avenue, Suite 260, Santa Cruz, CA 95060.

SCCBA Estate Planning Section“Why Google Doesn’t Trust You.” Sean Stonehouse, Legal Marketing Specialist, will discuss strategies and tips on getting your website to work for you. Back Nine Restaurant. 7:15 a.m. $20.00 annual dues (October through May) and $29.00 for breakfast. $11.00 for coffee only. An additional $10 if you want MCLE credit. Advance registration and payment required. If you have questions, call or email Emily Buchbinder, 831-426-8484, [email protected].

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https://theadvocates-santacruzbar.org/

https://theadvocates-santacruzbar.org/






Let’s expand on the Bar Association’s good works! We can start with the Bar Briefs. The Bar’s newsletter does good work keeping us informed of the developments in our local legal community and around the world. In this quarter’s issue, the court’s research attorneys tell us how to make our motions more persuasive, Jim Rummonds advises us on ways to make sure we don’t meet his fellows in the malpractice bar in court, Paul Peterson surmises what the Roberts court will bring after the resignation of Justice Anthony Kennedy, and Aaron Mohamed brings the court’s news from the latest Bench-Bar Meeting.

But the Bar Briefs can deliver more. Some savvy attorney could help the rest of us navigate changing legal technology (while letting the rest of us know of that technological savvy). Anyone wishing to review legal books and books directed towards lawyers has a forum. We can make the Bar Briefs even more useful than it already is. When I was a child, our local newspaper carried a comic called, “There Oughta Be a Law.” The comic portrayed annoyances that no one knew how to fix. Now, if you don’t like the law, you can fix it, and the California Conference of Bar Associations is here to help. This organization takes suggestions from local bar associations for new and amended statutes. If CCBA finds the change worthwhile, it will shepherd it through the Legislature.

The Bar Association can expand its offerings only with your help. The Board of Directors cannot do it alone, and Executive Director Lolly Belanger, our beacon of competence, has her hands full. But, with the help of the rest of the legal community, we can make the Santa Cruz Bar Association an even greater resource for this county’s attorneys.


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by Jake Eshen, Esq.

President’s Message

SCCBAAttorney Virginia Howard presents, “Serving on a Nonprofit Board: What Lawyers Need to Know.” 12:00 – 1:15 p.m. at the Back Nine Restaurant, 555 Hwy 17, Santa Cruz. One unit MCLE general credit. Cost is $35 for members; $40 for non-member attorneys, $30 for judges and non-attorney members. RSVP by November 30 at www.santacruzbar.org or contact SCCBA, 831-423-5031 or [email protected].

SCCBA Estate Planning Section“The Year in Review.” Attorneys Michael G. Desmarais, Patrick A. Kohlmann and John W. Prokey, will present a summary of recent developments in the tax, estate planning, administration, and litigation areas of the trust and estate field. Back Nine Restaurant. 7:15 a.m. $20.00 annual dues (October through May) and $29.00 for breakfast. $11.00 for coffee only. An additional $10 if you want MCLE credit. Advance registration and payment required. If you have questions, call or email Emily Buchbinder, 831-426-8484, [email protected].

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Why I am a Member ofLawyer Referral Service

One of my first rewarding experiences in law school took place at a Worker’s Rights Clinic that I participated in at the beginning of my second year. As part of the clinic, the students (myself included) volunteered at a local law center that provided legal services to the underrepresented. Under the supervision of experienced employment law attorneys, the students would conduct intake interviews, report and discuss the client’s legal issues with the supervising attorneys, and then return to the client with legal advice. This was my first experience with direct client-based legal work.

Through this experience, I learned interviewing skills, issue spotting, and a general understanding of employment law and the government agencies that enforce those laws. Most importantly, I learned that giving an understanding ear to a person in need of advice and providing meaningful legal counsel was something that I wanted to be, and could be, good at.

While I think I remember each client that I met at the clinic, my most memorable and meaningful experiences came from advising people who did not have U.S. citizenship. I took great pride in being able to advise that our employment laws, for the most part, provided them redress against abuses in employment, despite their non-citizenship status.

Being an LRS panelist has allowed me to continue doing what inspired me early on about a career in the law––the opportunity to help people face-to-face on issues that have meaning in their life. Being an LRS panelist has also proved to be a good referral source. I often tell people at our initial LRS appointment that “my favorite scenario is that they have a simple legal issue/question that can be dealt with in our 30-minute session” and “that my second favorite scenario is that they have an actual legal dispute that requires legal representation that I am competent and available to take on”... and, of course, that they want to hire me to do so.

The professional and detail oriented staff at LRS makes taking 30-minutes sessions easy and seamless. An LRS panelist need only answer the call and provide their availability: from there the appointment is booked. Even on my busier days, carving 30 minutes from my schedule to meet with, listen to, and focus on the person who walks through my door, is a refreshing and welcomed addition to the daily––and often impersonal––hustle and bustle.

-Eric Nelson, Esq.Law Office of Eric John Nelson

I have been involved with the Lawyer Referral Service program of the Santa Cruz County Bar Association from the time I first went into private practice in July of 1995. I had just left the Public Defender’s Office and set out my own shingle in the Old Sashmill, sharing office space with fellow criminal defense attorneys Sean Gallagher and Sherry Fleming. As I was investigating joining the LRS program, one of the staff at the time told me: “…you’re not going to get rich but you’ll earn a few bucks and meet some interesting people.” Both parts of that sage prediction have proven true. While my participation in the LRS program has brought modest financial success, it helps get the rent paid and I have met hundreds of interesting people with interesting stories and problems, some of whom I still keep in touch with, twenty years after their cases have been resolved.

While I certainly appreciate being hired – and paid – by LRS clients to help them in court, I also find a different type of reward in those clients whom could either not afford my services or that I was able to help in the initial visit. Far more often than not the genuine appreciation from these clients for whatever help or advice I was able to give in the initial 30 minutes, was a rewarding experience in its own right. For any attorney new to the area – or new to the law – joining the LRS has rewards well worth exploring.

-Andrew Janecki, Esq.Law Office of Andrew C. Janecki


LRS 30th Anniversary:Offering Gratitude for All Who Contribute

By Lolly Belanger, Executive DirectorSanta Cruz County Bar Association & Lawyer Referral Service

This year marks the 30th anniversary of the Bar’s sponsorship of the Lawyer Referral Service (LRS). As we enter the home stretch of 2018, I want to take the opportunity to thank the many people who have been instrumental in the development and ongoing success of the program.

LRS was established and operated in the early 1970s by a commercial phone answering service. In 1987, the State Bar of California enacted minimum standards for lawyer referral services. A year later, the Santa Cruz County Bar Association became certified by the State Bar of California and opened an LRS office and hired staff.

LRS Attorneys and Staff

Over the past three decades, 211 attorneys have participated in LRS, offering 30-minute consultations on a wide variety of civil and criminal legal issues. While I am thrilled to note that these consultations have resulted in millions of dollars in attorney fees, it is equally important to point out that many of these meetings provided LRS clients with enough information to proceed without legal representation, and the only remuneration for LRS attorneys was the knowledge that they helped a fellow human being in need. I also want to tip my hat to the legal support staff at the LRS attorney offices. It often takes a lot of coordination between LRS staff and the LRS attorney offices to schedule and confirm appointments for our clients. Those who answer the phones, process the paperwork and communicate with our office staff when clients don’t show up or when there is an unforeseen conflict are an integral part of the service.

Since 1988, 18 LRS staff members have handled phone calls, online requests, client scheduling and follow up, billing and paperwork. It is a challenging job to field inquiries from individuals who are often upset, confused and confrontational. Our current in-house LRS superstars are Administrative Coordinator Bridget Brown, Bilingual Legal Services Liaison Stephanie Hernandez, and Monique Guzman, an intern and volunteer from Monterey College

of Law, all of whom do an excellent job of providing professional, compassionate service to the thousands of individuals who contact our office each year. On busy LRS days or when staff are out of the office, I answer the LRS phones. I can attest that this is not an easy job, and the comments that we receive on the evaluation forms that we send to all of our clients speak to the fact that both LRS staff and attorneys go above and beyond the call of duty in helping meet the needs of our clients.

I must also pay tribute to my predecessor, Linda Martin, who worked wonders in establishing the service back in 1988 and contributing to its infrastructure and growth over many years.

LRS Partners

In its Justice Gap Report for 2017, the Legal Services Corporation reported that low-income Americans received little or no legal help with 86% of their reported civil legal problems. LRS is just one of several non-profits and court-related entities in Santa Cruz County striving to help all of the members of our community receive assistance with their legal issues. We are greatly indebted to these other organizations who freely share their knowledge and resources with us. We regularly turn to them when we have a client who may be more appropriately served through other channels. These groups include Senior Citizens Legal Services, the Watsonville Law Center, California Rural Legal Assistance, the Self-Help Center at the Watsonville Courthouse, Monarch Services and the Santa Cruz County Law library. I also appreciate the support from the Public Defender’s Office for their assistance with record expungements and the District Attorney’s Consumer Affairs Division.

It’s important to also recognize the judges and court staff who regularly refer people to the service. Many of our clients are made aware of LRS through their interactions at the courthouse, and they are one of our top referral sources. In turn, I appreciate the many non-LRS attorneys who regularly send potential clients our way.

continued on page 8

https://www.lsc.gov/media-center/publications/2017-justice-gap-report

continued from page 7


LRS Leadership

The governing body of LRS is the Santa Cruz County Board of Directors, which works closely with the LRS Committee. LRS Committee members spend hours pouring over the rules and procedures for LRS—updating them periodically to reflect the current realities of the legal system. These documents are then reviewed and approved by the Bar Board members, who also conduct an annual review of LRS applications and renewals. We are fortunate over the years to have had many Board members serve on LRS, giving the Board essential insights into the workings of the service from the perspective of those who provide the legal consultations.

In recent years, Board members have prioritized efforts on improving our service to Spanish-speaking community members. In the spring of 2016, we began recruiting bilingual Spanish-speaking volunteers to help with the telephone intake process. We quickly found that relying on volunteers was hit and miss, so we extended our outreach to the local universities, community colleges and Monterey College of Law. We were able to recruit and train a handful of interns, but we would lose them every semester and have to start the process again. The exception is our current intern, Monique Guzman, who has stayed on as a volunteer after the completion of her internship in 2017. Last year, the Board authorized a paid staff position for 10 hours per week, which allowed us to hire another intern, Stephanie Hernandez, as an employee.

In addition, we made a concerted effort to recruit Spanish-speaking attorneys to the service. Last year we had 13 members who spoke Spanish or had Spanish-speaking legal Staff. That number dipped to nine this year, mostly due to staffing changes in LRS attorney offices. The good news is that the number of booked appointments with Spanish-speaking clients increased from 70 in 2015 to 211 last year. As of the end of August, we’ve booked 113 appointments

in this category. We welcome any attorneys who can help us with this ever-growing subset of LRS clients. Much like what we’ve seen with our English-speaking clients, our word of mouth referrals are increasing with Spanish-speaking clients, and we expect to see growing activity from these members of our community.

A Touch of Serendipity

My final expression of gratitude is for the LRS clients who put their trust in us to help them find qualified legal advice. As I was finishing up this article, our mail delivery person came into the office to have me sign for a registered letter. I recognized the scrawled name on the envelope as an LRS client. I was a little alarmed by the formalized delivery service. I opened the envelope to find a handwritten letter and a check that I had mailed to the client in June, refunding his $50 LRS administrative fee.

Without going into great detail, the backstory is that the client had an issue related to a Section 8 voucher. On the evaluation form that he returned to our office, I understood him to say that although our service was good and we sent him to a “very nice gentleman,” there was a language barrier and he was still having trouble with the Housing Authority. We were unable to schedule him with another attorney, and I made the determination to send him a refund check.

In his reply letter, the client stated, “I have always been the recipient of great service from your office. With this letter I have included your refund money that was sent to me. The refunded money belongs to your office for the hard work and dedication given to clients such as myself. Please accept the funds along with my gratitude.”

And I was most grateful to do so.

law offices ofJohn S. Burton PC

law offices ofJohn S. Burton & Associates

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www.JohnSBurton.com55 River Street, Suite 230Santa Cruz, CA 95060Telephone: (831) 425-5023Fax: (831) [email protected]

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What areas do you practice? General Civil Litigation, Business, Real Property, Commercial, Contracts, Construction, Landlord/Tenant, Intellectual Property, Corporate.

What’s the best thing about being a lawyer? Being able to help clients potentially avoid disputes and litigation by making good choices on the front end of a transaction or incident.

And the worst? Not being able to guarantee an outcome. I would like to be able to tell my clients at the beginning of a case exactly how it will end up, but I am not the Judge or jury, and sometimes new facts emerge during a case, so while I can share what I think is likely based on my experience, I cannot guarantee that will happen. It is expensive to retain an attorney, and it is difficult not being able to guarantee that it will result in the outcome the client seeks.

What do you like to do in your free time? I like to spend time with my family. I have a one year old daughter so right now that includes a lot of walks and music.

Where’s your favorite spot to vacation? Maui. Beaches, massages, jet skis, ATVs…what’s not to love?

What’s your favorite food? Fajitas, I love Mexican food.

If you could be anything, other than a lawyer, what would you be? I think it would be interesting to own a boutique.

By Ashley Wheelock, Esq.

Member Spotlight

Courtney LeibrockLaw Office of Benjamin Leibrock

Larry Stone, MFTMarriage and Family TherapistDivorce/Custody MediationCo-Parenting Counseling Child Custody EvaluationParenting Coordination

Couples Counseling Individual Psychotherapy

Call for Information 831-600-7665 Referrals appreciated

Websites: www.StoneMFT.com & www.MediateCustody.Com


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Senior Citizens Legal Services Annual Golf Tournament

August 24, 2018


Observations and Insights From Research Attorneys at Santa Cruz

Superior CourtBy Jake Eschen, Esq.SCCBA President

Before you make your case to the judge, you have to make it to research attorneys Nancy Miller and Tom Dwyer. Nancy and Tom are pleased to share tips that will make their lives easier and make our arguments more appealing. Nancy, the supervising research attorney, has worked for the court for twenty-two years after working as a solo practitioner in Marin County and then as a contract attorney for Jim Rummonds, Bob Katz and Sam Stevens, before he took the bench. Rollie Hall honoree Tom Dwyer has worked under her since August 2016 after working at the Grunsky firm, Burton, Volkmann & Schmal, and Gasset, Perry & Frank.

Nancy and Tom generally work only for the civil judges, although once a month they review briefs for the appellate division. Trial criminal judges tend to research and evaluate the parties’ motions themselves. Khristine Serbin, the court’s probate attorney, researches everything related to petitions as well as ensuring that filed documents contain the necessary information. But Tom’s and Nancy’s advice on motions will benefit attorneys in any courtroom.

Nancy and Tom primarily review the briefs for the law-and-motion calendar, and about motions they hold the strongest opinions. Asked what they most desired in a pleading, they were clear: “Brevity. Clarity of writing. Prioritizing the arguments.” Brevity means beginning the brief not with legalism but with a summary explanation of what brought us to court and why it should rule for us. “Comes now defendant John Smith who files this opposition to plaintiff’s motion to strike,” advances an argument not at all.

Brevity also means avoiding general legal statements. The judges know a demurrer’s purpose and the standard on summary judgment. We need not use valuable real estate in our briefs to tell them. Nor need we bog them down

in unnecessary details. In most cases, an event’s exact date does not matter, much less whether it happened on that date or about it.

Clarity means writing that is to the point. Beyond syntax and style, we should provide a guide through the entire brief and the papers. Clear headings show where the brief is going. Our conclusion should recap the brief’s key points. When citing to an exhibit, we cite its specific page as well. If the exhibit has no page numbers, we add them.Prioritizing the arguments means we put the best arguments first and “don’t even bother” with the weak ones. Including bad arguments in our briefs just weakens the overall argument, injures our credibility, and gives our adversary a red herring. It also creates a lot of needless work for the courts.

The courts like to see one good citation rather than a string of them. A good quotation shows the research attorneys and the judges exactly what the court held. Long block quotations, on the other hand, are wearisome.

Nancy and Tom had a couple of suggestions about citations. First, the courts use Lexis. Citations to unpublished cases on WestLAW create extra work. If we must cite to WestLAW, including the case’s date shows the court the particular opinion to which we are referring. Second, even though in California the opinions of each Court of Appeal are technically as binding as those of every other, the local judges really do follow the Sixth District. If possible, we should cite that court’s opinions.

Nancy and Tom also have strong opinions about what they do not like in a brief. Miscitations—citing a case for

Search Orders/Status Check status Download copies/

proofs/invoices Clone orders View photos

Efiling—Do-It-Yourself Submit eFilings to eFileCA courts

File & Serve option available

Court Services Concierge eFiling Service Paper

Filings Case Research/Copies Courtesy Copies

Hand serve/deliver to defendants, witnesses in California, the USA,

and beyond

Service of Process Trial Presentation Digital Exhibit Presentation

Hot Seat Operator

Subpeona Records/Copy On-Site Subpoena/Notice Preparation

Authorization/Deposition Officer On-Site Scanning/Record Uploading

Site Inspection-Field Chase Onsite Measurement/Notes

Upload Photos Customer Contact

Pay Invoices PayPal-Credit Cards

Reports Cost Analysis Reports, Activity Reports

and Open Invoice Report in Excel

Please visit www.SaylerLegal.com and request a client login (if you don’t already have one), so that you can access your information, view proofs of service, photos, invoices, records and more.

We also enjoy your orders/communications by email if that’s your preference: [email protected]. Ph# 831-384-4030.


something it does not say—top the list. Attorneys should read the cases they cite rather than rely on someone else’s description of them.

Attacks on opposing counsel are likewise a waste of space. Any relevant misconduct, say on a motion for sanctions, should be presented objectively. Complaints of “gamesmanship” will be ignored.

Also prominent on their blacklist is the failure to exercise discretion about what to object to. Hypertechnical objections to pleading do not endear attorneys to the judge. Shotgun demurrers to every count in a complaint will not win; instead, focus on the ones that need to be amended or dismissed. They object similarly to scattershot motions for summary judgment addressed to multiple disparate accounts in a complaint.

Speaking of summary judgment, Nancy and Tom have specific advice about them and some other motions. The statement of undisputed material facts should have only the essential facts, the ones that “could make a difference in the motion.” Cal. R. Ct., Rule 3.1350(a)(2). Statements that contain dozens or even hundreds of background facts are counterproductive. The court could even deny a motion

based on a dispute over a fact that appears to it unessential or trivial but that the moving party has deemed material.

One rule regarding the separate statements to which we should pay more attention is Rule 1350(f). Citations to the evidence must refer “to the exhibit, title, page and line numbers.” Very often the research attorneys see citations to “Exhibit A” without showing what Exhibit A is. Failing to cite the evidence as specifically as possible suggests that the evidence may not show what it is cited for.

Judges and research attorneys alike disdain discovery motions the most. The most important step in obtaining a favorable result is taking the meet-and-confer seriously. The courts know when attorneys have just gone through the motions of conferring: neither side has made any concessions. Attorneys who have not conferred in good faith may find themselves sent out to the hall to confer then. The same goes for meeting and conferring before a demurrer.

Our job is helping the court decide our cases. The courts and the research attorneys have a heavy workload and limited time to review our papers. Success requires making our points as clearly and quickly as we can.

www.SaylerLegal.com



Fall FlingSeptember 13, 2018

Many thanks to our wonderful sponsors!


Back to the Basics:Defining the Scope of Engagement

By James S. Rummonds, Esq.SCCBA Director at Large

In the context of liability for legal malpractice, the scope of engagement/representation clause is arguably the most critical element of the contract for services between attorney and client. I elevate the scope of engagement clause to the top because it can be both a trap for the unwary attorney leading to liability in a malpractice claim and an unanticipated professional and financial burden draining scarce resources of a law office. It also has ramifications regarding the Statute of Limitations applicable to attorney malpractice.1 At the attorney’s peril, the scope of engagement clause in every fee agreement must be precise and reflect the mutual intentions of the parties. If it is not the attorney can anticipate being on the losing end of almost any argument that ensues regarding the scope of engagement.2

Business and Professions Code §6148, states: “(a) In any case…in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services…shall be in writing. At the time the contract is entered into, the attorney shall provide a duplicate copy of the contract signed by both the attorney and the client…The written contract shall contain all of the following:…(2) The general nature of the legal services to be provided to the client. (3) The respective responsibilities of the attorney and the client as to the performance of the contract…” (Emphasis added) Taken together, clauses (2) and (3) of §6148 require a precise and accurate scope of engagement clause that reflects the mutual intent and understanding of the parties. The following hypothetical illustrates the problems that can be anticipated by failing to comply with the mandates of §6148.

Client suffers a personal injury in the context of a landlord tenant relationship. Client consults attorney regarding the injury and enters into a contract for services. The closest thing to a scope of engagement clause in the fee agreement is in a perfunctory paragraph entitled “Services To Be Performed.” The services to be performed however are entirely generic in relation to the duties of the attorney;

viz., investigate the case, identify potential defendants, file pleadings, negotiate settlement and/or ADR, perform necessary discovery and law and motion, prepare and try the case if necessary, etc. Note well: There is no mention of the actual subject matter of the engagement or what case is being investigated. The attorney then fails to file a complaint within the statute of limitations. Client consults legal malpractice specialist to file a malpractice suit against attorney. What claims does malpractice attorney allege were not timely filed in the Underlying Case? Conversely, what claims does defense attorney have to defend against? Is it a run-of-the-mill within-policy-limits P.I. case or is it possibly an excess-of–policy-limits case involving the negligent and intentional infliction of emotional distress?

In addition to the facts giving rise to the personal injury claim (a run-of-the-mill slip and fall resulting in a broken wrist), once threatened with a lawsuit landlord takes umbrage and engages in conduct directed at tenant/client that could only be characterized as so negligent, so outrageous and so extreme that it went beyond all possible bounds of decency. This conduct has different dates, times and places than the P.I. case. The damages are more amorphous and subjective. It of course gives rise to causes of action for negligent and intentional infliction of emotional distress and punitive damages.3 What was a small discrete personal injury case is now transmuted into a potentially explosive punitive damage case for which there is no insurance coverage.

When confronted with the claims of personal injury and negligent and intentional infliction of emotional distress, defense attorney demurs to the latter claims on the grounds that attorney was only hired to pursue a slip and fall personal injury case. However, it cannot be denied that defending against the more expansive case based on the alleged limited subject matter will problematic under the Services To Be Performed paragraph in the hypothetical fee agreement. But now let’s change the hypothetical.

Instead of the Services To Be Performed clause described above, the Scope of Engagement clause in the contract for services in the Underlying Case reads as follows: “Client employs Attorneys for the purpose of providing


representation against Landlord, and any and all responsible parties arising out of or in connection with personal injury claims, particularly but not limited to a broken wrist resulting from a trip and fall at Landlord’s premises on or about…date. This Agreement covers the work of attorneys on the subject engagement, and no other matter, claims or defendant, from the effective date stated above through and including the conclusion of this matter whether by trial, settlement or otherwise.”

The more specific and detailed description of the scope of engagement/subject matter of the litigation clause would give any trier of fact far more pause in awarding damages against Attorney A than the generic Services To Be Performed example given above. The same would hold true regarding the application of CCP §340.6.

The vast majority of errors leading to legal malpractice claims are as preventable as missing a statute of limitations. Failure to file within the Statute of Limitations is almost

always a simple matter of calendaring. The scope of engagement clause in the contract for services can have a similar prophylactic effect on managing the risk of being sued for legal malpractice. When the client comes in on crutches suffering from a broken ankle and asks attorney to represent him or her against the negligent party it is a simple matter of having a boilerplate clause in your standard fee contract with blanks that clearly describes in accurate detail the scope/subject matter of the engagement. Doing so will redound to benefit the lawyer when a disgruntled client raises questions regarding the scope of engagement.

James S. Rummonds is board certified by the American Board of Professional Liability Attorneys (ABPLA) in the specialty of legal malpractice, board certified in civil trial advocacy and civil pre-trial advocacy by the National Board of Legal Specialty Certification (NBTA). Jim has practiced in the specialty of legal malpractice for the past 25 years and is currently available as a mediator and expert witness in legal malpractice cases throughout California and beyond.

Footnotes: 1. Whether the client actually and reasonably believed that the attorney would provide further legal services regarding a specific subject matter is predominantly a question of fact for the trier of fact, but can be decided as a question of law if the undisputed facts can support only one conclusion. (Cf. Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 751.) 2. If there is ambiguity in subject matter of the representation, it will be resolved by looking at the issue objectively through the eyes of the client. Gonzalez v. Kalu, 140 Cal.App.4th at pp. 28-29

3. It should be small comfort to the defendant attorney in this situation that punitive damages in the Underlying Case are not awardable as compensatory damages against the attorney (See, Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953 [105 Cal.Rptr.2d 88]; Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal. 4th 1037 [135 Cal.Rptr.2d 46] A jury exposed to the type of facts giving rise to a claim for punitive damages in the Underlying Case is likely to transfer their willingness to award punitive damages to compensatory damages for negligent infliction of emotional distress.

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Bench Bar ReportBy Aaron Mohamed, Esq.SCCBA Bench Bar Liaison

Bench Bar Update - July 25, 2018

The quarterly Bench Bar meeting took place on July 25, 2018 at 12:00pm in Dept. 5 of Santa Cruz Superior Court, at 701 Ocean Street. Court Executive Alex Calvo presided over the meeting.

The following items were reported on at the meeting:

1. Outgoing Probate Attorney: Amy Henderson - final day, Friday July 27th. It was previously reported that Probate Attorney Amy Henderson would be leaving the court to go into private practice. Ms. Henderson’s last day was Friday, July 27th. The court has hired a new research attorney and plans on making an announcement in the near future. The new research attorney is slated to begin work at the court in August.

2. Jameson v. Desta decision re: court reporters for indigent defendants. The court is currently developing a process to ensure compliance with the recent decision in Jameson v. Desta, handed down by the California Supreme Court. In brief, Jameson states that courts must provide indigent litigants with court reporters at no cost. The court is looking at ways to address this new mandate, Among other things, it is considering the development of a supplemental fee waiver form with which qualified parties could request for a court reporter to be provided. Of relevant note is that the court is currently exploring a switch to electronic court reporting devices and discussing it with the Legislature. Needless to say this proposal is being opposed by court reporting professionals.

3. Clarification re: Tentative Rulings The court has instituted a Tentative Ruling system since January, 2018, under California Rule of Court 3.1308 and Santa Cruz Local Rule 2.9.01. According to the rules, tentative rulings are published by 3:00 pm on the day preceding the scheduled hearing. A party wanting to present oral argument then has until 4:00 p.m. to contact the court and all opposing parties. Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the court. The court stated emphatically that these rules would be strictly enforced.

4. Did you know? The County Flag of Santa Cruz depicts a rainbow on the lower half and an evergreen tree on the upper left. The flag was designed by Ed Penniman, a Soquel resident, and was adopted by the County as the official flag in or around 1986. In describing the flat design, Mr. Penniman stated that the main symbol of the evergreen tree against a white background represents “reverence for nature and growth, upheld by a foundation of optimism and unity.” The five bands in rainbow colors at the bottom of the flag represent the five county districts. More information about the county flag is available at https://www.crwflags.com/fotw/flags/us-ca-sz.html.

The next bench bar meeting will be held on October 25, 2018 at 12:00pm in Department 5.

Please direct questions or comments you would like to be presented at the next Bench Bar meeting to attorney Aaron J. Mohamed: [email protected].



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Rethink Quitting or Retirement:Morph into the Career You Want

REASONS MANY ATTORNEYS ARE DISSATISFIED WITH THEIR CAREERS:For decades, attorneys generally practiced in the same areas of law for most of their lives, just as employees at large corporations did the same work until retirement. Then big corporations downsized or merged, and commerce generally went with the way of more trendy models including lots of technology. Those who couldn’t or wouldn’t keep up floated down with their golden parachutes or just endured plain “downsizing.” This left a whole generation scrambling to reinvent themselves. This situation was pretty much the same with lawyers.

It is predicted that Millennials will likely have several different jobs in their lifetimes. These new careers might be closely related but not necessarily so. People also are more likely to go back to school late in life to “reinvent” themselves to make themselves more desirable to clients and employers.

People are living longer with a healthier lifestyle allowing them to work into their later years. You will see attorneys working into their 80s and to retire at 50 or even 65 seems absurd in the face of money worries or just the plain boredom of total retirement. Still, many attorneys find themselves burdened and become generally dissatisfied with all or part of their job as they work later in life.

This of course doesn’t mean young or new attorneys are not also unhappy. They have come out of law school into a very different world with larger student loans than most attorneys have known. Trying to find a satisfying career may take many false starts and can be discouraging unless extra planning and care is taken from the minute they enter law school!

LAWYERS ARE MORE FORTUNATE THAN OTHERS:In the legal profession, every age has its advantages. Young attorneys have great knowledge of technology and look to use it in their careers. This is a great boon to their clients and employers. Older attorneys have the advantage of years of experience and legal knowledge. They can be trusted to know the answers and have learned how to give great

service to their clients. As they age, lawyers can have more flexibility with their hours so they can continue to work part time if they choose. With fewer financial concerns that hopefully have decreased in the lawyer’s life, part time work can still support a comfortable life style.

More importantly, a lawyer’s reputation is built through years of doing good work. An older attorney can take that with him or her to any other profession or job they decide to morph into.

Although it doesn’t feel like it when you get out of law school, new lawyers have a multitude of choices. He or she can choose to become a corporate attorney, go into Big Law or even become a solo. More opportunities include public service, international law, litigation or transactional, non-profit and many, many other fields.

Sometimes, lawyers feel that they have been pushed into a particular practice because of outside circumstances. This might be taking over their parent’s practice, the need for regular hours, or faced with paying back student loans and/or a lack of opportunities in their community. In reality, this is seldom true after the first few years. Even during those years there are great choices to be made with careful planning. To set up a strategy to uncover their “best” career is the biggest challenge for most attorneys, no matter how or where they practice law. Most important, that strategy needs to include the opportunity to change the goals when the time is right.

PREPARE TO TRANSFORM YOURSELF:There is no doubt that there will be changes in your career. Many of you also have already added other areas of the law to your practice. I have frequently seen Personal Injury Attorneys include Social Security, or Bankruptcy or Immigration to their firm’s agenda. Sometimes, however, specific changes such as learning a new skill like how to better market can create the missing satisfaction with the practice and no new areas need be found.

Members of solo and small firms must be able to “change” at a moment’s notice. Yes, that awful word: CHANGE. Yes, not only are taxes and death a certainty in life, so is change.

By Eleanor Southers, Esq.Professional Legal Coaching

continued on page 21


Let’s look at some of the reasons for transforming yourself:• You want to retire but still need or want to earn money.• The Legislature has impacted your practice drastically.• You are bored with your present practice. • You want more family or leisure time.• You need to move.• You are caring for a parent or child on a long-term basis,• An area of your practice has taken a down turn financially.• You are unhappy but really don’t know why.• You need to earn more money.• You must slow down because of an illness or physical disability.

Change is obviously a choice (or requirement) for lawyers at any stage of their careers and at any age.

WHY DON’T MORE UNHAPPY ATTORNEYS MORPH?There are many attorneys that think change will only bring something worse than they already are experiencing. This is a natural human reaction when attorneys have spent so much time and effort on their careers. Also, lawyers hesitate to get help when they are in trouble for fear of being seen as weak or inept. This can lead them into sticking with the same old circumstances but still wanting more satisfaction. One big threat to change is denial. Convincing themselves that the situation can be “lived with” or that it doesn’t even exist is tantamount to never starting on a solution. Defeating denial is the first step to change. Some of the career choices attorneys I have known who didn’t want to completely retire have made include:• Mediation Practice and/or Arbitration Practice.• Coaching (me).• Consulting work in their area of expertise.• Becoming an Expert Witnesses.• Virtual law/technology consultant.• Contract attorney.• Write a book or become a legal reporter.• Teacher, either in a law school or a community college.• Start a small business.• Administrative law judge.• Consulting in a particular area.So, if Morphing seems right for you, give it a try. Hopefully, I have given you new insight on the importance of, not only recognizing, but making plans to change your career path.

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The Roberts Court

Traditionally, the eras in the Supreme Court are marked by the Chief Justice. The Warren Court gave way to the Burger Court, then to the Rehnquist Court. In 2005, the “Roberts Court” began. However, despite John Roberts’ name in the headline position, most have considered the defining justice of this era to be Anthony Kennedy, the median ideological justice or “swing justice” between the Court’s conservative and liberal wings.

Justice Kennedy’s retirement, and the likely nomination of a more conservative Justice, moves Roberts into the position of the swing justice, an unusual historical position for the Chief Justice. While Justice Kennedy was reliably conservative on many issues, he was notably less doctrinaire than his conservative colleagues. In certain areas he clearly broke from the conservative wing, most notably in LGBTQ rights; Roberts, on the other hand, has mostly voted with the Court’s conservative wing. Chief Justice Roberts new position as swing justice is likely to make this era truly the Roberts Court in more than just name.

But what might this new iteration of the Roberts Court look like? With the Chief Justice acting as swing justice, it takes no great powers of prognostication to predict that the Court will move in a significantly more conservative direction. Much discussion has centered on the potential for overturning of high profile precedents, most notably Roe v. Wade. Indeed, in just the last term, the Court’s conservative wing, joined by Roberts, overturned a more than 40-year-old precedent in Janus v. AFSCME, ruling that state employees could not be compelled to pay union dues. So the future most likely holds a number of 5-4 decisions from the conservative Justices.

The question then arises, where might the Chief Justice split with his conservative brethren? In this most recent term, Roberts joined the more liberal Justices in two 5-4 cases. One, Artis v. District of Columbia, written by Justice Ginsberg, concerned calculating the limitations period for refiling supplemental state law claims after dismissal of a case in federal court. The more high-profile case was Carpenter v. United States, written by the Chief Justice himself and applying the Fourth Amendment to cell phone site records.

Timothy Carpenter was arrested on suspicion of several armed robberies of a series of Radio Shacks and T-Mobile stores in Ohio and Michigan. Investigators placed Carpenter in the vicinity of the crimes through cell-site records from his cell phone provider which they obtained through a court order under the Stored Communications Act (SCA). The SCA permits disclosure of certain telecommunications records when the Government can show “specific and articulable facts showing that there are reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation” - a threshold significantly lower than the probable cause required for a search warrant.

At trial, Carpenter moved without success to suppress the records because the government had not obtained a warrant for them. The evidence was admitted and Carpenter found guilty. The federal Court of Appeals for the Sixth Circuit upheld his conviction, stating that a warrant was not necessary because Carpenter did not have a reasonable expectation of privacy in cellphone records maintained by a third party, his service provider.

The Supreme Court reversed. Chief Justice Roberts, joined by Justices Ginsberg, Breyer, Sotomayor, and Kagan, characterized the case as being at the intersection of two lines of precedent, each involving application of the “reasonable expectation of privacy test” first announced in Katz v. United States. He expanded the expectation of privacy in one’s physical location and movements while limiting the scope the exception for information turned over to a third party.

Under the first line of precedent, travelers on public roads generally have no reasonable expectation of privacy in their movements. But modern surveillance technology allowing continuous 24-hour tracking, implicates a different level of

By Paul Peterson, Esq.Brereton Law Office



privacy interest. Chief Justice Roberts wrote that society has had a reasonable expectation that law enforcement would not and could not secretly catalogue every movement of a person for a long period of time. But the ubiquity of cellphones and their necessity in modern life has changed what is possible for the Government to do. “Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.” Roberts drew particular attention to the problem that these records allow retroactive surveillance, effectively allowing the police to tail someone for years before they even know the person is a suspect.

Under the second line of precedent, the “third party doctrine”, the Court has generally rejected any reasonable expectation of privacy in information that is voluntarily turned over to third parties, even if that information was only given for a limited purpose. But, in Carpenter, Chief Justice Roberts wrote that the “reduced expectation of privacy in information voluntarily shared with others” does not eliminate Fourth Amendment concerns. He added that the type of information at issue here, perfect surveillance of an individual’s movements potentially over several years, differs significantly from the type of information at issue in prior third party doctrine cases (such as telephone number logs and checks). The privacy concerns are much greater in this case, particularly in light of potential further advancements in surveillance technology. Further, the “voluntary exposure” of the information is problematic in this case. The compilation of this data is necessary to the cell phone’s operation and takes no active participation by the user. Again, cell phones’ ubiquity and necessity to modern living make it unreasonable for people to opt out of cell phone use to maintain their privacy.

Having found a reasonable expectation of privacy in the information and concluding that the third party doctrine does not apply, the Court held that the information sought

should be subject to the warrant’s requirement of probable cause and not to the SCA’s lower standard. Chief Justice Roberts wrote, “In light of the deeply revealing nature of [cell-site location information], its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”

Each of the four other conservative Justices filed a separate dissent. They all were hostile to the Katz “reasonable expectation of privacy” test, arguing that the original basis for Fourth Amendment protection is found in common law property concepts.: “Yet ‘property concepts’ are, nonetheless, fundamental ‘in determining the presence or absence of the privacy interests protected by that Amendment’” (Justice Kennedy). “This case should not turn

on ‘whether’ a search occurred . . . It should turn, instead, on whose property was searched” (Justice Thomas). “Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized” (Justice Gorsuch).

Indeed, Justices Thomas and Gorsuch both suggested overturning Katz and adopting an entirely property-based interpretation of the Fourth Amendment. Justice Alito also worried whether this case will affect all uses of subpoenas by the Government.

In the end, these concerns did not carry the day with the Chief Justice or the Court’s liberal wing. Chief Justice Roberts (citing Justice Felix Frankfurter) wrote that when considering new technological innovations, the Court must be careful to ensure that we do not “embarrass the future.” But what, if anything, can one case teach us about the future of the Court?

Two areas stand out. First, despite suggestions from the more conservative justices of overturning Katz or




returning to a more property-based test, the Chief Justice based the decision firmly on the “reasonable expectation of privacy.” In fact, he maintained and expanded this precedent rather than curtailing or overruling it. While he has certainly been willing to overrule precedent, this example shows that he is more likely to join the liberal wing of the Court in affirming precedent (see also his dissent last term in Wayfair v. South Dakota, joined by Justices Breyer, Sotomayor, and Kagan, arguing to uphold precedent requiring physical presence for collecting sales taxes). Roberts may face added pressure in this area if a solid conservative block is willing to grant certiorari to more cases seeking to overturn prior rulings.

Second, in Carpenter, the Chief Justice showed particular concern for how this ruling will affect the future. Most directly he struggled with how changing technology will interact with legal precedent. It is interesting that, when faced with a novel legal-technological issue, the Chief Justice did not side with the more Originalist legal theories of his conservative brethren. He may be less beholden to conservative legal theories, and more willing to side with the liberal wing, when confronted with other cases involving rapidly changing technology.

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More generally, as Chief Justice, Roberts has a special concern for his Court’s legacy. Now as both Chief Justice and the swing Justice, he will control the Court’s destiny even more. Perhaps this might lead him to moderate some of the more conservative rulings of his colleagues, but perhaps not. Given his ideological profile and his past history, he will likely continue to rule in a conservative fashion, and the overall jurisprudence of the Court will move to the right.

But as Carpenter demonstrates, predicting what issues of importance may come before the Court when a Justice is appointed is extremely difficult. When Chief Justice Roberts was appointed in 2005, the iPhone would not be released for another two years. Yet the smart phone has since risen to such prominence that it is changing Fourth Amendment jurisprudence. The recent appointment of Justice Gorsuch and the retirement of Justice Kennedy have marked a new era for the Roberts Court, as both Chief Justice and swing justice, John Roberts will have more control over the court that bears his name than any other Chief Justice in recent memory.

1 9 88 lawy e rr f al s ervic 201 bar bres q 2018 draft2 25th... · 2018-09-27 · the pino alto...

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