THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 29 • Number 2 2016

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EDITORIAL BOARDBenjamin G. Shatz Los Angeles, Editor-in-Chief

Stan Bachrack, Ph.D. Los Angeles, Managing EditorSharon J. Arkin Los Angeles

Winnie Cai GoletaPaul S. Chan Los Angeles

Thomas C. Corless Los AngelesKathryn M. Davis Pasadena

John Derrick Santa BarbaraPaul J. Dubow San Francisco

Justice Elizabeth A. Grimes Los AngelesRussell Leibson San Francisco

Hon. Michael Mattice FairfieldJustice Miguel Márquez San JoseThomas J. McDermott, Jr. Palm DesertHon. Helen E. Williams San JoseSusan E. Anderson Wise Long Beach

Joan Wolff San Francisco

LITIGATION SECTION EXECUTIVE COMMITTEE OFFICERS

Reuben A. Ginsburg Los Angeles, ChairKathleen H. Brewer Westlake Village, Vice-Chair

Megan A. Lewis Sacramento, TreasurerJ. Thomas Greene San Francisco, SecretaryCarol D. Kuluva Los Angeles, Immediate Past Chair

MEMBERSBruce P. Austin San Diego

Jessica Barclay-Strobel Los AngelesCynthia Elkins Woodland Hills

Terrance J. Evans San FranciscoSusan Kay Horst San FranciscoMichael Kelleher OaklandMary McKelvey Los Angeles

Denise Thompson GlendaleKinh-Luan Tran Los Angeles

Christopher Van Gundy San FranciscoW. George Wailes Redwood City

ADVISORSDonald W. Barber WhittierRobert M. Bodzin Oakland

Hon. Suzanne R. Bolanos San FranciscoLisa M. Cappelluti San Francisco

Hon. Ernest H. Goldsmith San FranciscoJewell J. Hargleroad Hayward

Mark A. Mellor RiversideJustice Eileen C. Moore Santa Ana

Karen J. Petrulakis OaklandNorman J. Rodich IrvineJerome Sapiro, Jr. San Francisco

Justice John L. Segal Los AngelesBenjamin G. Shatz Los Angeles

Hon. Edward A. Torpoco San Franciscoe. robert (bob) wallach San Francisco

Joan Wolff San FranciscoTodd F. Stevens Board Liaison, San Diego

Mitch Wood Section CoordinatorAna Castillo Administrative AssistantTricis Horan Director of Sections, San Francisco

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Copyright 2016, State Bar of CaliforniaThe opinions in this publication are solely those of the contributors.California Litigation is pleased to review original articles submitted

for publication. Articles should be 1,000-2,000 words. Please submitproposed articles – and Letters to the Editor – to Benjamin G. Shatz, atBshatz@Manatt.com.

To subscribe:California Litigation is mailed free to all members of the Litigation

Section of the State Bar of California. To join the Litigation Section, sendyour name, address, telephone number, and State Bar membershipnumber to Litigation Section, State Bar of California, 180 HowardStreet, San Francisco, CA 94105-1639. Section dues are $95 per yearand should be enclosed with the enrollment information.

By Benjamin G. Shatz, Editor-in-Chief

Philosophy majors and art history majors are acquaintedwith René Magritte’s The Treachery of Images, a surre-alist painting showing a pipe above the phrase “Ceci

n’est pas une pipe” (i.e., this is not a pipe). This intriguing workof imagination serves as an example of a metamessage conveyedby paralanguage. For present purposes, please just acknowledgethat this space, often used for book reviews, does not contain abook review. Instead, it contains a plea for book reviews.By holding this journal, you’ve proven yourself a reader. And

this journal is undoubtedly not your sole reading material. Sowhat else have you read lately that would be of interest to yourfellow litigators? If that question stumps you, then how aboutconsidering the following recommendations?Books that would enhance a litigator’s advocacy: Steven

Pinker, The Sense of Style: The Thinking Person’s Guide toWriting in the 21st Century; Ross Guberman, Point Taken: Howto Write Like the World’s Best Judges; Joel Trachtman, TheTools of Argument: How the Best Lawyers Think, Argue, andWin; Jonathan Shapiro, Lawyers, Liars and the Art ofStorytelling: Using Stories to Advocate, Influence, and Persuade;Brian Johnson & Marsha Hunter, The Articulate Advocate:Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations,and Motions.Books about the Supreme Court and its justices: Erwin

Chemerinsky, The Case Against the Supreme Court; MichaleGraetz & Linda Greenhouse, The Burger Court and the Rise ofthe Judicial Right; Noah Feldman, Scorpions: The Battles andTriumphs of FDR’s Great Supreme Court Justices; JusticeStephen Breyer, The Court and the World; Melvin Urofsky,Dissent and the Supreme Court: Its Role in the Court’s Historyand the Nation’s Constitutional Dialogue; Linda Hirshman,Sisters in Law: How Sandra Day O’Connor and Ruth BaderGinsburg Went to the Supreme Court and Changed the World;Joan Biskupic, Breaking In: The Rise of Sonia Sotomayor andthe Politics of Justice; Wil Haygood, Showdown: ThurgoodMarshall and the Supreme Court Nomination that ChangedAmerica; Laurence Tribe & Joshua Matz, Uncertain Justice: TheRoberts Court and the Constitution.Books about famous judges: Thomas Healy, The Great

Dissent: How Oliver Wendell Holmes Changed His Mind — andChanged the History of Free Speech in America; Seth Sterns,Justice Brennan: Liberal Champion; Melvin Urofsky, Louis D.Brandeis; Linda Greenhouse, Becoming Justice Blackmunn:Harry Blackmunn’s Supreme Court Journey; Irin Carmon &Shana Knizhnik, Nororious RBG: The Life and Times of RutherBader Ginsburg; Justice Sonia Sotomayor, My Beloved World.Books about law and society: Ta-Nehisi Coates, Between the

World and Me; Bryan Stevenson, Just Mercy: A Story of Justiceand Redemption. Or for somewhat lighter fare, perhaps a mixingof legal theory and science fiction fantasy, such as CassSunstein’s The World According to Star Wars.Finally, there are legal novels: Jay Wexler, Tuttle in the

Balance; Christopher Buckley, Supreme Courtship; KermitRoosevelt, Allegiance; Lindsay Cameron, BigLaw: A Novel.These are just a few suggestions. The legal universe is awash

in wonderful books. Why not discover some and share whatyou’ve found?

This is Not a Book Review

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Snarky east-coasters are fond ofsaying that the country wastilted west, and all the loose

nuts slid down to the left coast. Thatsentiment is mere jealousy, of course.California is a wonderfully uni queplace. Any nuttiness just en hances theflavor. California law, of course, alsohas its peculiarities — especially whenviewed by outsiders. This naturallyincludes certain features of Californialitigation. Probably the biggest per-plexing anomaly concerns “unpub-lished” and “depublished” appellateopinions — these terms honored byquotation marks because they can behard to understand literally in today’sdigital world, where all written deci-sions are so readily available. Yet everylitigator must understand how publica-tion and depublication work becausegetting it wrong can get you into hotwater.

On the ethics side of the road,Wendy Chang addresses witnessesand how to ethically address perjury.Jake Glucksman then shares his takeon client perjury, channeling Fleet -wood Mac, in Sweet Little Lies. Weround out our descent into ethicalproblems with a primer on the StateBar Court by Jim Ham and EllenPansky. Never heard of the State BarCourt? Well, good! That means you’rekeeping your nose clean. On the otherhand, all lawyers should know thatthis special court exists, and litigatorswill be interested in how its proce-dures differ from other courts.Next, Dorit Warner shares her in -

sights about litigation from an inside-out perspective. There’s first-rate wis-dom to be had from secondments.Finally, Judge Kent Hamlin ad -

dresses the serious problems arisingfrom the absence of court reporters inmany courtrooms. He insists, WeMust Promptly Restore Court Re -porters to Trial Courts ThroughoutCalifornia.Are there topics you believe

California Litigation should be cover-ing? Let us know. And if any of thisissue’s articles prompts a reaction, let-ters to the editor are most welcome— and are selectively published, notdepublished.

Editor’s ForewordBaby Steps: On the Path to Full Publication?By Benjamin G. Shatz

This year marks a huge change inthe publication status of an admittedlysmall class of cases: When the Cali -fornia Supreme Court grants review ofa published opinion, the case is nolonger automatically depublished. (SeeCal. Rules of Court, rule 8.1105(e)(1)(B), amended effective July 1,2016.) Did you hear that? Those wereshouts of joy from law yers opposed tothe very notion that a hard-litigatedcase, and no doubt hard-drafted pub-lished opinion, would simply vanishsolely because the Supreme Courtdecided to weigh in. Indeed, there aremany lawyers who find the whole ideaof any “unpublished” appellate deci-sion decidedly distasteful.The welcome demise of automatic

depublication, however, merely whetsthe appetite of those who would like toeradicate other forms of depublicationand nonpublication. Exhibit A is ourlead article by Justice Kline and JerryFalk, who make the case that It’s TimeTo Replace Summary Depublication(i.e., selective depublication underrule 8.1105(e)(2)) by the CaliforniaSupreme Court with SomethingBetter. Hence our cover illustration,Baby Steps. Is eliminating automaticdepublication the first move towardeliminating selective depublication,and perhaps toward ending nonpubli-cation? Time will tell.Also in this issue are valuable arti-

cles on litigation management. AllenLanstra provides BA-esque leadershiplessons, while Travis Burch makes thecase for careful use of jury instructions.Phil Simmons provides guidance onselecting and managing expert wit-nesses.

Benjamin G. Shatz

California Litigation Vol. 29 • No. 2 • 2016

Benjamin G. Shatz, Editor-in-Chief ofthis journal, is a Certified Specialist inAppellate Law and co-chairs theAppellate Practice Group of Manatt,Phelps & Phillips, LLP, in Los Angeles.BShatz@Manatt.com