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By Chris McConkey
Rates of anxiety, depression, and harmful drinking are high in the legal profession, and especially high among its new generation. These issues harmattorneys and stifle the availability of affordable, high quality legal services. The legal profession has the opportunity—and perhaps the responsibility—to intervene in structural peculiarities that harm student and attorney health.
Last winter, the Journal of Addiction Medicine published findings from a national study of about 13,000 attorneys. The researchers found that 28% of respondents showed signs of depression, 23% showed signs of stress, and 19% showed signs of anxiety. The rates were even higher among new and young attorneys.
The study also found that 21% of attorneys demonstrate problematic drinking. The rate for attorneys in their first ten years of practice was 28%. Among those who self-identified their alcohol use as a problem, 44% reported that the issue began in the first 15 years of practice. The researchers therefore recommended that interventions target new attorneys.
Law schools and legal employers may have an ethical duty to prevent and treat avoidable stress, anxiety, and depression. These institutions create environments that unnecessarily wear on the health of law students and attorneys. Furthermore, creating environments where law students and attorneys can thrive personally as well as professionally benefits the public. Low- to moderate-income Californians desperately need, and all Californians rely on, effective representation.
In the meantime, the State Bar of California’s Lawyer Assistance Program (“LAP”) offers free and confidential screenings to attorneys who experience mental health and substance issues. Additionally, the American Bar Association offers resources for students, including a Substance Abuse & Mental Health Toolkit.
Enhancing the health of law students and attorneys—for their own sake—is the right thing to do. Furthermore, it serves the public by increasing the supply of effective legal services and empathy for others.
Chris McConkey is a Staff Attorney at OneJustice and member of the California Young Lawyers Association (CYLA) Board of Directors. This abridged article originally appeared in the November 2016 California Bar Journal.
By Elizabeth Balassone
This summer, in the midst of preparing for my first trial, I received a voicemail that was (admittedly) a complete shock: CYLA Chair Shawtina Ferguson had called to congratulate me as the recipient of the Jack Berman Award of Achievement for commitment to pro bono service.
Learning about Jack Berman was humbling in every sense of the word: Mr. Berman was an incredible young attorney killed in the 101 California Street shooting. At the age of 36, he had already made partner at Bronson, Bronson, & McKinnon; become President of the American Jewish Congress; and co-founded TAX-AID and the San Francisco Transitional Housing Fund. It is painfully obvious that Mr. Berman demonstrated outstanding service to our profession and our community here in San Francisco—and that we lost him far too soon.
Reflecting on Mr. Berman’s legacy encouraged me to reflect on my own pro bono work this year. As we know too well, the depth of need for pro bono service seems indefinite. So how are we drawn to the pro bono matters we choose?
The common thread among my current pro bono cases is that they are class actions. One class action case involves correcting an unfair process for thousands of people who were denied Social Security benefits. These are people who are among the most vulnerable members of our community, and they were not told that the doctor who evaluated their eligibility for benefits they desperately needed had been later disqualified based on widespread allegations of deficiencies in the quality of his examinations.
Another case challenges the conditions in short-term detention facilities with the Tucson Sector of U.S. Customs and Border Protection. In those facilities, thousands of civil detainees—including asylum seekers, pregnant women, and U.S. citizens, some of them toddlers and infants—are held under punitive, inhumane conditions of confinement. These men, women, and children are packed into overcrowded and filthy holding cells with the lights glaring through the night; exposed to brutally cold temperatures; deprived of sleep; and denied adequate food, water, health screenings, medical care, basic sanitation, and hygiene items. They too are a particularly vulnerable population as they are held virtually incommunicado while the government decides their fates.
I knew immediately I wanted to work on both of these cases. Why? I think they were compelling to me because it was not about getting a good outcome for a single client. It was about trying to change processes and conditions that were wrong, had already impacted thousands of people, and could impact countless more to come.
These pro bono class action cases have also helped me develop skills that bear directly on my practice as a litigator. Thanks to trust (and tough prep questions) from my supervising partner Will Stern and co-counsel at Justice in Aging and Legal Aid Society of San Mateo County, I got to do my first oral argument in federal court. And, shortly thereafter, I got to do my second oral argument in federal court. In fact, junior attorneys can now point to specific judicial orders to advocate for such opportunities. For example, in civil cases before many of the judges in the Northern District of California, a party may submit a written request stating that a lawyer of four or fewer years out of law school will conduct oral argument, and if that request is received before the Court’s ruling, the Court will hear oral argument on the principle that junior lawyers need more opportunities for appearances than they typically receive.
Simply put, the experiences I have gained from these pro bono class action matters have made me a better lawyer. They have helped me hone skills that I bring to the rest of my practice. And, at the end of the day, every success we have for our pro bono clients is a particular and wonderful honor.
Elizabeth Balassone is an associate at Morrison Foerster in San Francisco, California. Her practice focuses on complex civil litigation, with an emphasis on the defense of class actions.
By Katherine Becker
At a recent Ventura County Barristers event, I had the privilege of speaking with a few members of the Ventura County Bench. I took the opportunity to ask them two questions: First: If you could give new attorneys one piece of advice, what would it be? Second: What is the single most common mistake you see new attorneys make in your courtroom? They provided illuminating tips that all attorneys should keep in mind as they progress through their careers.
Judge Brian Back: Prepare. That may seem obvious, but there are times when it seems like counsel has not really prepared. While judges know almost everything (joking), there are a few things we don't know. That is why counsel should do extensive preparation in order to present a concise argument to the court, and anticipate what they will need to rebut after opposing counsel's argument. Often the preparation requires a careful and repeated review of applicable statutes. Counsel should read the statute as if they have never read it before, then read it again, and again, and be aware of the importance of words, word placement, punctuation (commas, etc.) and etc. Throughout argument and after the judge rules, counsel should always remain civil. Conduct in court--good or bad--can have a profound impact on the current ruling and the credibility of counsel in future appearances.
Judge Vincent O’Neill: Prepare thoroughly, identify the key issue, argue succinctly and accept the ruling graciously.
Judge Glen Reiser: If you do not agree with the judge, please do not say "Your Honor, with all due respect." The judge will have a working interpretation of that sentence, and it has nothing to do with respect. It is better to acknowledge the general correctness of the judge's thought processes, and explain why the facts in the matter before the court, or the analysis in some previously unconsidered case, will allow the court to reach a different decision.
Judge Matthew Guasco: Follow your passion in lawyering. There is a strong and understandable temptation to find a job, any job, especially in this economy. Too many lawyers do that, however, only to learn a year or two later that they hate what they are doing. Identify the type of law you want to practice and go for it. Typically, we excel in the things for which we have a passion. The better you are as a lawyer, the more likely it is that you can make a sustainable living.
Judge Brian Back: If there is critical evidence that counsel wants to have admitted, counsel should think of more than just one way to get the evidence admitted. Counsel should open up the evidence code and any pertinent cases, and have notes regarding the two or three or four pathways to hopefully get the evidence admitted. And, of course, this comes down to preparation in advance. The mistake we see is counsel being shut down with the first attempt to have evidence admitted and then failing to pursue other avenues which would allow its admission.
Judge Vincent O’Neill: Failure to proofread documents carefully.
Judge Glen Reiser: Probably the most common mistake among young attorneys (other than the temptation to highlight the lack of courtesy or civility of opposing counsel) is the compulsion to repeat what is in the moving or opposing papers, rather than tiering off of those points into more nuanced discussions about why the law is the way it is, and how that logic or policy embraces the facts before the court.
Judge Matthew Guasco: Following bad advice. When you are a new attorney, there is much you have to learn. Naturally, more senior attorneys will give you advice. Often, this advice is good and you should follow it. Other times, you will be misled to your detriment or that of your client. For example, your research leads you to conclude that the best approach to the motion or trial is to do A. Your supervising attorney disagrees and tells you to do B. That approach does not feel right to you, but you defer to the more senior attorney. You execute plan B, only to be told by the judge that you have taken an unreasonable and unsupportable position, possibly earning you or your client sanctions. Lesson learned. A lawyer must cultivate his or her own independent judgment. You should solicit input from more senior attorneys, but, in the end, you and you alone are responsible for your decisions and actions. If your supervising attorney asks you to do what your judgment and instincts say is wrong, speak up. Provide your reasoning. You may be surprised to learn that good supervising attorneys will listen if you have sound, persuasive reasons supporting a particular course of action. If your supervising attorney insists that you do the wrong or unethical thing against your better judgment, it is your choice where you work. More importantly, you are responsible for your professional and ethical choices as a lawyer, not your supervisor.
Katherine Becker is a founding partner at Schuck, Becker & Dehesa, LLP in Santa Paula, California, and practices estate planning, probate and business law. Katherine is a special advisor to the California Young Lawyers Association Board of Directors.
By Candice A. Garcia-Rodrigo
Every young lawyer comes out of law school with the hopes of making a difference in the justice system and their local communities. Studying case law and black letter law informs the young attorney that there are rules to abide by, for which there are consequences if not followed. What professors fail to mention to these young attorneys with altruistic and inspiring visions is that the most important part of practicing law is to “CYA.” That is, “Cover Your Ass.”
When I first entered the legal profession, the number one rule I learned was the significance of “papering” your client file. If you speak with a client, write a memorandum or notes detailing the conversation and add it to the file. Depending on the client, it may be necessary to confirm the conversation in a formal letter. When first learning how to balance case files and properly manage time, this may feel like a ridiculous and unnecessary chore. However, if a week, month or year later, the client makes claims that you did or did not give him or her certain advice or warn of risks, then you will be glad you sent that “CYA” letter to the client.
Too often you will find the client remembering your conversation differently or claiming you gave certain advice that you would not have given. The best course of action is to CYA soon after the time of the meeting or conference, rather than scrambling years later to piece together the details of your interaction with the client.
Additionally, after a court hearing, sending an “Advisal” letter to the client is necessary to CYA. This is true whether or not the client attended the hearing. Typically, the client will be tense, nervous, anxious and completely confused. She will not recall what happened or what you said in court after the hearing. The moment you return to your office, sit down and write out your Advisal letter confirming everything that happened at the hearing, the advice you gave the client, the “needs” for the next hearing, and confirm any other aspect of your conversation or strategy posed. If the client did not appear, then this is the opportunity to inform the client of what occurred and the next steps.
While writing this letter, you may come up with additional “to do” lists for other staff members or yourself on this case. Again, CYA. The letter will be used as a future reference to yourself and the client. It will detail what happened at the hearing, and the advice you gave the client.
Another important way to CYA is to send clients “Introduction” and “Status” letters. Again, depending on the area of practice, an Introduction letter informs clients of their duties, responsibilities, and lists required documents or homework assignments to complete for the attorney to commence work. The worst thing to hear from a client is “You never told me that.”
Finally, it is recommended to “touch” the file at least once per month. The attorney should review the file, the court information online if it is a court action, and send the client a “Status” letter. Status letters keep the young attorney in constant contact with the client, serves to protect both the client and attorney from a future dispute, and most importantly, fulfills the attorney’s ethical duties to keep the client informed.
The key to a successful practice is to “CYA” -- yours and the client’s. That may not have been taught in law school, but it is a necessary lawyering skill.
Candice A. Garcia-Rodrigo is the founding partner at Rodrigo Law Firm, PC in San Bernardino, California, and practices estate planning, probate and business law.
By Lauren Wood
Just as stories of finding gold and striking it rich reached the forty-niners' ears back in 1848 during the California gold rush, news of the many opportunities that marijuana law can bring is spreading like wildfire. Whether you are a new lawyer, an experienced lawyer looking to change career paths, or even a lawyer looking to explore an untapped market, the “Green Rush” is your new frontier.
With the recent passage of Proposition 64 (also known as the Adult Use of Marijuana Act), a great deal will be changing regarding consumer use and distribution of cannabis in the next few years. Proposition 64 legalizes recreational marijuana and hemp in the State of California for users above the age of 21. It will also establish certain sales and cultivation taxes. With proposition 64’s passage comes new legal questions and issues, and an entirely new field of practice for lawyers.
The passage of Prop. 64 is indicative of a growing trend in the United States, as California has been added to the list of states that have legalized marijuana for recreational use. More than half of the states in the U.S. have either legalized marijuana for consumer use, for medical use, or have decriminalized the use and possession of marijuana. California was already ahead of the game prior to passing Prop. 64, as the state previously allowed the medical use of marijuana. While some states are slow to follow, the growing trend in the U.S. shows that no matter which political party gained control of the government after the election, cannabis is here to stay.
But how could this affect the legal profession? Well, to sell and distribute marijuana under the new law, businesses must obtain a license with the state. This may also include obtaining a local license with the county or city municipality. Obtaining these licenses results in a lot of consumer questions and possible future litigation over their acquisition. Many new dispensaries will need advice from a lawyer regarding how to be in compliance with state and local laws, and some may require representation when permits are unlawfully denied, or when faced with civil lawsuits brought by consumers to have dispensaries moved out of their neighborhood. Additionally, the formation of the marijuana industry as a whole brings new legal issues relating to taxes, patents and corporate formation. There are thousands of consumers out there who will need assistance with each of these issues.
However, just because cannabis is an un-tapped legal market doesn't mean it will be easy. An attorney who practices marijuana law may be faced with becoming an expert in business law, administrative law, intellectual property, criminal law, employment law and tax law, since marijuana law can involve a combination of these practice areas. Attorneys looking to dive into marijuana law should seek to develop a strong foundation in business law.
The real key to becoming a good marijuana lawyer is to master the business side of the law. Once that is complete, you must then learn the "extras" -- both to set you apart from other lawyers and to make you a cannabis expert in the legal field. These "extras" often include becoming familiar with federal laws (including learning the ins and outs of the Controlled Substances Act) and knowing the inconsistencies between state and federal law. These inconsistencies often trigger business conflicts. Importantly, a good marijuana lawyer must also be an expert on the state laws regarding sale, distribution and consumer use of marijuana. This may also include gaining a solid understanding of tax law, as your new business clients will undoubtedly face difficulties abiding by strict tax requirements.
But just like any other practice, a marijuana attorney doesn't have to do everything. One can either choose to tackle the broader field or specialize in a specific niche, such as land use, environmental law, commercial litigation, corporate transactional work or corporate formation. Alternatively, you could even specialize in intellectual property and patent law, taking on clients who may wish to patent or protect their newly developed marijuana strains. Since patent attorneys must also take the Patent Bar, this is an even smaller subset of the profession that is also likely in need of more attorneys specializing in the subject.
Though the task of mastering this new frontier may sound arduous, it could lead to big rewards if done properly. Timing is of the essence, though. Those looking to enter the field sooner rather than later will reap the benefits of an un-flooded market. Don't be the one to miss out on this exciting and evolving legal field.
Lauren Wood is a partner at the Law Offices of Schurmer and Wood, with offices in Santa Barbara and Ventura/Oxnard, California. She is a civil litigation attorney specializing in plaintiffs’ personal injury and wrongful death matters.
By Danielle Stephens and Justin Borrowdale
Transactional attorneys play a key role in guiding their clients through various aspects of the sale of a business. Many clients operate their business from property that they do not own, but instead lease from a third party. In that case, when your client is preparing sell its business, you will need to contemplate how to transfer your client’s rights and obligations under the lease to the new business owner and limit any future liability under the lease for your client. Most leases provide that a tenant must obtain the landlord’s consent to any assignment of the lease or sublease of the premises. There may be exceptions in the lease to the consent requirement that allow for a lease to be assigned or the premises to be subleased to a successor in interest to a tenant’s business (i.e., in the event of a sale of all or a substantial portion of tenant’s assets) without landlord consent. Unless the lease was heavily negotiated by tenant’s counsel at the inception of the lease, the lease most likely provides that your client will remain liable under the lease (including any exercised options to extend) even after an assignment of all rights and obligations under the lease to the assignee/buyer. Although such continued liability is often an unwelcome surprise to clients, there are several strategies for reducing a client’s liability.
There are many ways to deal with a lease when a business is sold. While the best strategy for reducing a seller’s future liability under a lease depends on the parties involved, the circumstances surrounding the transaction and the nature of the business, the strategies listed above are worth considering.
Danielle Stephens is a partner at Diepenbrock Elkin Gleason, LLP in Sacramento, California. Her practice focuses on real estate and environmental law.
Justin Borrowdale is an associate at Diepenbrock Elkin Gleason, LLP in Sacramento, California. His practice focuses on commercial and industrial real estate transactions.
By Aastha Madaan
California young and new lawyers, as the ABA YLD Representative to Southern California, it is my pleasure to share with you some valuable resources provided by the American Bar Association Young Lawyers Division (ABA YLD).
First and foremost, if you are a member of the American Bar Association, your membership to the ABA YLD is complementary, so take advantage of the free membership and use the numerous resources geared to young lawyers.
ABA YLD’s program on Paying Down Your Student Debt is now available on video at this link: http://www.americanbar.org/groups/young_lawyers/events_cle/paydown_student_debit.html
The ABA YLD also offers members several CLE’s on substantive topics and on practice management. You can find upcoming CLE and other online programs here: http://www.americanbar.org/groups/young_lawyers/events_cle.html
Lastly, in addition to the ABA YLD, other Sections and Divisions of the ABA offer various discounts, fellowships, travel reimbursements and other incomparable benefits for young lawyers and minority lawyers. If you have questions about your practice area or would like to get more involved with the ABA, please feel free to email me at firstname.lastname@example.org.
Aastha Madaan is the founding partner of Madaan Law, P.C., with offices in Long Beach and Irvine, California. She practices in the areas of business law, franchise law and estate planning.
By Omar Anorga, The Anorga Law Firm, Inc.
From time to time, litigators will be faced with the hurdle of having to introduce and admit foreign language testimony at trial. The initial thought of doing so may seem daunting but it should not be since introducing and admitting foreign testimony is fundamentally the same as doing so for non-foreign testimony except for an interpretation and translation component.
With the increase of California’s cultural diversity, sooner or later litigators will likely have to examine or cross-examine a non-English speaking witness or party; as such, employing the services of an interpreter will be a crucial. Therefore, litigators should be familiar with California Evidence Code sections 750 through 756, which govern the issue.
During pre-trial preparation, counsel should meet and confer with opposing counsel as to the abilities of witnesses and/or parties to provide testimony in English at trial, and to the extent one of these individuals is identified as needing an interpreter, counsel should stipulate to an appointment of one. Additionally, stipulating before trial ensures the avoidance of delay when a non-English speaking individual is called to the stand to testify.
The stipulation should address the apportionment of cost to be paid by each party for the interpreter’s services. Keep in mind that these costs are recoverable by the prevailing party from the losing party as a cost of suit. The parties should also discuss whether the interpreter will have an opportunity to meet with the testifying individual prior to trial. This allows the interpreter to become familiar with that individual’s speech patterns and idioms. For example, the word “cintura” means “waist” in a Mexican Spanish dialect, but that same word means “lower back” in an El Salvadorian Spanish dialect. Appropriate word translation is crucial in cases where foreign language evidence is being offered as it can be dispositive in accurately describing a claimant’s allegations and damages.
To the extent that counsel has not entered into a stipulation, a court may be called upon to do so. Normally, when appointing the interpreter, the court will also set the interpreter’s fee schedule and order that the fee be paid by one or more parties.(Cal. Evid. Code §752(b).) The determination of whether a particular witness needs an interpreter is largely a matter of trial court discretion. However, when the uncontradicted evidence shows a witness does not speak or understand English, the failure to grant a motion to appoint an interpreter is an abuse of discretion. (See Gardiana v. Small Claims Court (1976) 59 Cal.App.3d 412, 418-19.) Moreover, in criminal defense matters, the right to an interpreter is expressly guaranteed by the Constitution and cannot be waived without an affirmative showing on the record of an intelligent and voluntary waiver by the defendant. (See People v. Chavez (1981) 124 Cal.App.3d 215, 227.)
Any individual who interprets in a court proceeding must be certified to do so. (Cal. Gov. Code §68561(a).)There are some instances where a court may, for good cause, permit a non-certified individual to interpret testimony at trial. However, to stay away from the appearance of bias, courts generally prohibit relatives or friends of one of parties as an interpreter without the consent of all parties. Also, an interpreter is required to “disclose to the judge and to all parties any actual or apparent conflict of interest,” including the fact “the interpreter is acquainted with or related to any witness or party to the action [or] has an interest in the outcome of the case.” (Cal. Rules of Court, Rule 2.890.) Failure to make such a disclosure may be grounds for disqualification.
Other grounds for disqualification may be related to the interpreter’s competency. Interpreters are treated as expert witnesses and their competency must be established under the same rules that apply to other expert witnesses. (See, e.g., Gardiana, supra, 59 Cal.App.3d at 418.) The basic competency of a court-appointed interpreter rarely is an issue because California has a rigorous certification procedure for court interpreters and noncertified interpreters cannot be appointed except on a showing of “good cause.” (See Cal. Gov. Code§§ 68561(a), 68562; Cal. Rules of Court, Rule 2.981.)
Not only do litigators have to be prepared to deal with the non-English speaking witnesses but also equally important, they have to be equipped to handle the introduction and admission of evidentiary documents written in a foreign language. Litigators will be relieved to know that the same principles that require the appointment of an interpreter for witnesses unable to speak English apply to the translation of writings. (Cal. Law Revision Com., com., Cal. Evid. Code§ 753.) If the characters in any writing to be introduced at trial are incapable of being deciphered or understood directly, that writing will need to be translated and the court will be required to swear in a qualified translator to translate the writing at trial. (See Cal. Evid. Code § 753 (a) – (c).)
Even before trial, litigators should be prepared to have any and all important writings translated by a certified translator, as failure to do so can have detrimental consequences to their case. For example, in Chevron Global Tech. Servs. v. Little, the court denied the defendant's motion to dismiss, in part, because it was unable to ascertain the provisions of an underlying Spanish-language contract and neither party had submitted a declaration containing a translation of the document. (Chevron Global Tech. Servs. v. Little (N.D. Cal. August 22, 2006 No. C-06-3157 MMC) 2006 U.S. Dist. LEXIS 63317, at *7.)
For the benefit of their clients, California litigators must be prepared to introduce any and all beneficial evidence, including oral or written testimony, in a foreign language. Litigators should identify potential witnesses that may require the assistance of an interpreter and documents that need to be translated early on in the case to ensure that they are adequately prepared to defend or prosecute their case.
By Justin Borrowdale, Diepenbrock, Elkin Gleason LLP
While no two transactions are the same, many commercial real estate purchases (or sales, depending on which side of the transaction you are on) follow a similar structure. While clients are sometimes hesitant to involve their attorney as the transaction process is developing, early involvement typically makes representation, and the entire transaction, go more smoothly for the client. Clients are understandably hesitant to involve lawyers because we can be expensive and clients often think that they can handle the early negotiations on their own. However, real estate transactions often build on themselves. Although they become more complex as the transaction develops, they are largely dependent on earlier negotiations. Therefore, as an attorney representing either the buyer or the seller, it is important to be involved from the beginning. Such early involvement will not only allow you to more effectively represent your client, but will allow you to better ensure that no issues are missed along the way. Typically, an attorney involved from the beginning can expect to guide his or her client through drafting a letter of intent (sometimes also called a term sheet or memorandum of understanding), followed by negotiating and drafting a purchase and sale agreement, engaging in due diligence, then title review and obtaining property insurance, and finally closing escrow.
After initial interest and perhaps a few informal discussions regarding the property, a letter of intent (“LOI”) is usually agreed upon. An LOI is generally a non-binding starting point for the basic deal terms. Essentially, the parties use this brief document to infer the other party’s position and see if they are close enough on the basic deal terms to engage in the expenditure of time and money necessary to move forward with the transaction. If the parties are too far apart on basic terms such as price, it is often not worth proceeding with the deal.
It is important, even at this early stage to think about your client’s interests and how to protect them. For example, if you are representing the seller, your client may want their asking price to remain confidential. If representing the buyer, your client may want the seller to refrain from negotiating with other potential buyers. For these reasons, many LOIs include limited binding provisions such as non-disclosure or confidentiality and exclusivity terms.
Additionally, the complete purchase and sale agreement will be based on the LOI. As the starting point for the entire transaction, you should strive to be involved in drafting the LOI, if financially and practically feasible. This will allow you to be better informed and provide helpful guidance to your client from the beginning.
If the parties can agree on the essential terms addressed in the LOI, then they can proceed to negotiating and drafting a full purchase and sale agreement.
The purchase and sale agreement (“PSA”) is the most important document in a real estate transaction. It governs nearly every detail of the transaction:
While the bulk of the purchase price and the closing documents are exchanged at closing through an escrow agent, some portion of the purchase price—or earnest money—may be paid at the outset of the transaction as a deposit. Throughout the transaction, some or all of this deposit may be refundable to the buyer if certain acts are not performed or target dates are not met. Conversely, if the buyer does not perform as required, part or all of this deposit may be forfeited and the seller allowed to rescind the PSA. Additionally, the seller will likely have to disclose all the relevant or “due diligence” documents concerning the property to the buyer for the buyer’s review before the buyer will commit to purchasing the property. This process is discussed further below.
Because some issues are only known to the seller and are not easily disclosed in other ways, buyers often want the seller to make certain representations concerning the property. For example, sellers often represent that the documents they delivered are true and correct; that the seller, the property, and its use is in compliance with all laws, statutes, and ordinances; and that there is no pending action, litigation, or investigation concerning the seller or the property.
Next, buyers may want some assurance that the seller will perform certain tasks such as continued operation of the property (if the property is leased) or that all owners or tenants have vacated the property, if the buyer intends to occupy the property. Buyer may also ask the seller to indemnify the buyer against claims that occurred or accrued during the seller’s ownership of the property. The extent and nature of the indemnification may be a highly contested issue.
The PSA’s closing section generally covers what documents need to be delivered to the escrow agent, how the remaining amount of the purchase price is delivered, and how the costs are allocated between the parties. The closing process is also discussed in greater detail below.
The general provisions are often dismissed as “boilerplate.” However, issues such as governing law, whether “days” means calendar or business days, and how to address issues that arise when important days fall on holidays or weekends are often dealt with in this boilerplate. While they may not seem important during the negotiation of the PSA, during the contract period, these provisions may be vitally important.
Finally, there are myriad other issues that the parties may wish to address in the PSA, including: rights of first refusal on other pieces of property owned by the seller, the transfer of existing lease agreements and personal property, and whether the seller will make improvements to the property before it is acceptable to buyer.
The due diligence process is used to inform the buyer of the condition of the property and any structures located thereon, and alert him or her to potential issues that may arise as the property’s new owner. The diligence process certainly varies from transaction to transaction. This is in part due to the unique nature of each property, clients’ varying objectives, and differing lender requirements. The PSA will typically require that the seller provide the buyer with copies of any and all documents that are material to the property, including, but not limited to, existing leases, operating statements, any prior Phase I reports, ALTA surveys, and any applicable warranties. In addition to reviewing the documentation provided by seller, buyer will most likely perform an independent investigation of the property. The buyer will generally obtain an environmental site assessment (commonly called a “Phase 1”) to determine if there are any potential environmental issues at the property—such as chemical storage or underground fuel tanks. The buyer will also typically hire a third party to perform a physical inspection of the property, which will include an evaluation of the building interior systems, including HVAC, and may flag ADA compliance issues. The buyer may also want to have the property surveyed. Obtaining an ALTA survey will enable the buyer to acquire an ALTA title insurance policy (as opposed to a CLTA policy), and help the buyer identify encroachments, easements, and other issues. The buyer should also consider obtaining a zoning letter from the local municipality in order to ensure that the buyer’s intended use of the property is permitted, and to confirm that there are no building code violations. The lender will also require an appraisal.
This process is highly transaction-dependent and varies greatly. Even when these standard tasks are completed, they will often raise additional issues which require follow-up. You will often work with third-parties as well, who likely do not have the same urgency you and your client possess. It is therefore important to start this process as soon as feasible, in order to complete the necessary due diligence in a timely manner.
Title insurance insures the buyer against any title claims to the property, except those listed as exceptions in the policy. As the attorney for the buyer, title review necessitates:
The process of obtaining title insurance is generally as follows. The title company will deliver a “preliminary report,” which discusses the proposed coverage and any exceptions. It is critical to ensure that the basic information in “Schedule A”— the legal description, and the class="anchor" name of the fee owner—is accurate.
Schedule B contains the exceptions to coverage. It will contain general exceptions, such as matters disclosed by survey and other rights not shown by public records. These can often be deleted if the seller provides an appropriate “owner’s affidavit” to the insurer.
There are also site specific exceptions to coverage. These generally pertain to recorded documents such as easements, taxes, and other encumbrances on the property. These should be analyzed carefully, as many exceptions can be deleted for one reason or another. The attorney should first look to see if these encumbrances have expired or do not apply to the property for some other reason. If there is a reason an encumbrance could be removed, the attorney should work with the title officer to do so. During the title review period, the attorney may need to obtain a release from a satisfied lienholder, an estoppel from a declarant under some CC&Rs or an approval of an architectural review committee. If the exceptions are not removable, the attorney and client must discuss the acceptability of each encumbrance, which may impose costs, limit the client’s use of the property, or interfere with current or contemplated improvements. The reviewing attorney should also consider whether any of the underlying documents associated with an exception give the buyer insurable rights, which can be added to Schedule A.
The buyer’s attorney must also consider whether any title endorsements are necessary. These specific additions to the title policy can alleviate a buyer of specific concerns regarding the property. These endorsements vary widely to cover the myriad situations that arise in a real estate transaction. For example, ALTA Endorsement 9.2-06 covers violations of covenants conditions and restrictions (“CC&Rs”) and ALTA Endorsement 28-06 covers encroachments on the property.
Finally, it is also important to consider third parties when negotiating the exceptions and endorsements. Lenders may have their own requirements, which must be considered if financing is to be obtained. Additionally, the client may wish to consider potential future purchasers, who may not have the same plans or expectations as the client.
In the PSA, the buyer and seller will have agreed to deliver certain items into escrow. The seller will typically deliver executed deeds, assignments, affidavits, and other documents. Typically, the buyer will deliver the purchase price, along with the necessary loan documents—which include the deed of trust and promissory note—as well as executed copies of any assignments that accompany the purchase and sale. The release of the purchase price to the seller is conditioned on the receipt of the seller’s documents and vice versa. In this way, the escrow agent acts as the go-between for the buyer and seller.
Escrow instructions govern the closing process, and generally tell the escrow agent exactly what the seller should be delivering and exactly what the buyer should be delivering. Generally, in commercial transactions, the buyer’s attorney will prepare the escrow instructions. This is often heavily influenced by the PSA. It will also state what other conditions are necessary for closing, such as the title company’s issuance of a title policy for the property and buyer’s receipt of loan funding. Finally, it will include instructions for recording, dispersing funds, providing copies to the parties, as well as providing notification that escrow has closed.
By Christina E. Cortino, Esq., Law Office of Christina E. Cortino
Using social media as a busy legal professional may seem like a daunting undertaking. Platforms such as Twitter require frequent postings to maintain and gain followers, while Facebook and Instagram are geared towards personal communication rather than professional networking. LinkedIn, however, offers tools attorneys can use to establish a professional presence online, market their expertise, and engage their network and prospective clients.
Professional social networking has benefits for all legal professionals, from law students to skilled and experienced partners. Having a profile puts a face to that expertise, showcases skills and experience, and enables the user to connect with peers, employers, prospective clients, and industry experts.
LinkedIn’s default settings create a public profile for its users. This includes allowing users to see who has viewed their profile and notifying users of of their connections profile updates. The default settings, however, are fully customizable and can be controlled by the user in three ways: (1) restricting what other LinkedIn users see when viewing their profile; (2) limiting notifications to others regarding minor profile updates; and (3) deciding what the general public can see about your profile. Changing the default settings is the key to effectively managing privacy on LinkedIn.
Under Privacy & Settings1 users have the option to select what others see when viewing their profile. Browsing anonymously may be preferred by some, and can be accomplished by selecting “Complete Private Mode.” Under this setting, when viewing another user’s profile, that user will only see that a “LinkedIn User” viewed them, not the class="anchor" name of the viewer.
LinkedIn’s default setting also shares all profile updates on the user’s newsfeed. For example, if a user adds a new job to their profile, the new job is shared in the user’s profile feed and can be seen publicly. Managing this setting is easy via Privacy & Settings or by selecting “Yes” or “No” as appropriate on the toggle titled “Notify Your Network” located on the profile. Turn on notifications for newsworthy updates such as a new job or award, and turn off notifications to make minor edits, add past job positions, and list prior educational accomplishments.
Users can also control how their LinkedIn profile appears in public searches. By default, visitors have access to view a user’s entire profile, including their picture, summary of experience, current employment position, and more. The viewer is not required to have a LinkedIn account to view this information. The public profile is customizable under the Profile Settings section, and can be limited to basic information, made fully available, or blocked from public view altogether.
Adding connections on LinkedIn can be accomplished by: (1) synching LinkedIn with your email contacts and inviting some or all contacts to connect with you; (2) searching for and adding specific class="anchor" names of people that you know; and (3) browsing through the People You May Know recommendations provided by LinkedIn.
The first method, while efficient, has drawbacks, particularly if LinkedIn connects with your personal contacts. Sending out invitations to your entire contact list is impersonal. When connecting with users you have no existing relationship with, the recommended practice is to send a brief note introducing yourself and inviting them to review your profile. Manually adding contacts is the best way to ensure you’re connected to people you know in a professional capacity.
Using LinkedIn effectively can take as little as five minutes per week to keep your profile up-to-date, connect with people you know, and share relevant material to your network. For California attorneys interested in learning about the ethical implications of using social media, see ethics opinions and articles by the State Bar of California HERE.
1 Tip: To access the “Privacy & Settings” menu, hover your cursor over your profile picture in the upper right hand portion of the screen. A menu will appear. Click “Manage” next to Privacy & Settings. Back
By Paul T. Moura, Hunton & Williams LLP
For new attorneys, the idea of litigating in the federal court system can be intimidating. The rules are different, the standards can be tougher and the stakes can be higher. A plaintiff gets first dibs on where to file a lawsuit, but defendants who prefer to litigate in federal court have various tools at their disposal to remove a case to federal court if certain requirements are met. As an attorney, your job is to advise your client as to which forum provides the most upside: state or federal? To remove, or not to remove?
This is an introductory guide to some of the basic strategy considerations for practicing in federal court.
Not everyone can remove to federal court. There are certain rules and principles that must be considered, and not all of them are black and white. For both plaintiff and defense lawyers, it is critical to understand each party’s removal rights at all stages of litigation.
By W. Martin Behn, Hopkins & Carley
The last time we wrote an article about job resources in January 2015 for the unemployed, under employed, and unappeasable, the bar passage rate was one of California’s lowest in nearly a decade. Just a few months later, in July 2015, the bar passage rate had slipped to the worst in nearly 30 years. The silver lining is that during the same period statewide unemployment dropped in California by about 1.3%.
Despite encouraging employment statistics, after speaking with both a recruiter from inside a law firm and a career resources dean of a law school, it became clear that the advice for newly minted graduates and attorneys seeking to lateral remains constant. The best use of resources is to build your professional network and stay up-to-date with law school friends and acquaintances.
There are a few different ways to learn about and take advantage of existing opportunities. In order of importance, consider the following avenues:
In short, with a stronger market for those looking for work, it is still important to rely on the professional network you build out to ensure you are informed and up-to-date with the latest opportunities.
Two friends from college email you: they want to start a business together. Can you handle the paperwork? A family acquaintance calls you out of the blue: she wants to sue her bank—the same small community bank that handles your law firm’s line of credit. A law school colleague who moved in-house at a local tech company finally calls to see if you can handle a small collection case. This could be a big opportunity—but the defendant is a small business you represented last year.
You would be forgiven for wanting to say “yes!” immediately. Whether you have your own practice or work at a law firm, the pressure to generate business is always present. However, each of the above scenarios implicates an actual or potential conflict of interest, and the Rules of Professional Conduct set forth specific requirements for undertaking new representations where such an actual or potential conflict exists.
Generally speaking, Rule 3-310 tells you how to proceed:
How do these rules play out in real life? In scenario (1) above, your friends have a potential conflict of interest: the structure of the business could affect each of their rights. Accordingly, Rule 3-310(C)(1) requires informed written consent from each of your friends. In scenario (2), your firm has a business/financial relationship with the bank, and as a practical matter you rely on them for liquidity, so written disclosure to your new client is required under Rule 3-310(B)(1). And in scenario (3), depending on the work you did for the former client, you may be required to obtain informed written consent from both the former client and the new client under Rule 3-310(E), or at the very least you should provide written disclosure under Rule 3-310(B)(2) or (3).
This article just scratches the surface. If you are uncertain about how to proceed, you should research the issue thoroughly, ask a senior lawyer or mentor (while being careful to protect client confidences), and/or call the State Bar Ethics Hotline at 1-800-2-ETHICS (1-800-238-4427). Noncompliance with Rule 3-310 could subject you and your client to a disruptive and unpleasant disqualification motion, and could subject you to malpractice liability and/or a judgment requiring you to return all of the attorney’s fees you received from the prohibited representation. It’s better safe than sorry, for you and for your clients.
by Chris McConkey, OneJustice
Our society prioritizes the fairness of our legal system but persistently fails to protect the tens of millions of people who cannot afford an attorney in civil cases. As a result, civil justice is most available to those who can afford it—an outcome our society should find untenable. This article describes the justice gap in California and simple steps every new and young attorney can take to ameliorate it.
There is no general right to counsel in civil cases. Lower- and moderate-income people who cannot afford a lawyer have to seek legal aid or pro bono representation, or represent themselves. Limited funding, however, likely prevents legal aid programs from serving 50% or more of the people who seek their help.1
The shortage of civil legal services for people who cannot afford an attorney is the “justice gap.” Legal aid organizations could meet only 20-30% of lower-income Californians’ legal needs before the Recession of 2007-2009, which decimated funding for those programs while shifting even more people into poverty.2 Without legal assistance, both lower- and moderate-income people are often unaware of the best legal arguments and strategies available to them.
Access-to-justice leaders have proposed bold strategies to achieve a long-term solution, such as expanding the right to civil counsel and simplifying laws for pro per litigants. But here are seven things every new and young attorney—even a very busy one—can do to help end the justice gap:
The California Young Lawyers Association is the largest association of new and young attorneys in the country. If every member took these seven steps, momentum towards ending the justice gap in California would accelerate. As the relative newcomers to California’s legal system, it is our opportunity to achieve its full integrity and see through the access-to-justice work that others have begun.
2 State Bar of California, Civil Justice Strategies Task Force Report & Recommendations, 7-8 (2015), Back
by Richard P. Carlton, Director, Lawyer Assistance Program
Having difficulty finding rewarding employment in a tight legal market creates tremendous stress for many early career lawyers. To address these challenges, the Lawyer Assistance Program (“LAP”) of the State Bar of California, in conjunction with CYLA, is expanding its career counseling and career development services. The LAP will continue to provide two free counseling sessions with a career counselor who specializes in assisting attorneys who wish to make a positive career change. This assistance may take the form of clarifying career interests, learning effective networking and interviewing skills, polishing a resume, sending inquiries that produce results, and finding the market’s best employment and contracting prospects.
Beginning in January 2016, CYLA and the LAP will launch the Early Career Support Project. A new website for this project will provide a host of career development tips and resources. Additionally, the website will become the hub for the formation of Career Development Teams throughout California. These teams will be modeled after the job search work teams structure pioneered by the career services firm Lee Hecht Harrison. Job search work teams provide knowledge about the search process, a constant source of encouragement, and much needed support. One study found that compared to non-team job hunters, job search work team members:
More information about how job search work teams function and the associated benefits can be found at www.highlyeffectivejobsearch.com.
The Career Development Teams will meet in major metropolitan areas in the evening twice a month and will be facilitated by experienced career counselors and career coaches. The teams will generally be composed of six (6) to twelve (12) members. Team members will pay the facilitator $20 each month to participate. The balance of the cost of the facilitator’s services will be covered by the State Bar for up to six months.
To find out more about these career development resources, please email LAP@calbar.ca.gov.
by Nicole Abboud, The Law Office of Nicole Abboud
They say one of the best decisions you could ever make in your legal career is to go into solo practice, and by “they,” I’m referring to myself. I say that all the time. I opened my own practice over a year ago and it has been the most challenging yet rewarding journey in my life thus far. For many of you reading this, perhaps you’ve thought about hanging up your shingle while grinding at your current law firm, or maybe you graduated from law school with the intention of going solo upon passing the bar. Regardless of where you are in your career at this moment, if you ever entertained the idea of running your own law practice, then there is but one question you need to ask yourself before taking any action and that is:
Why do you want to go into solo practice? Why is this decision the right one for you?
For me, the decision came after having worked as an associate at a small firm for over 2 1/2 years. It didn’t take me long to realize that I was unhappy and unfulfilled with my position and I needed a change. After many months of careful consideration and circular debates in my head about the big decision, I decided to take the leap into solo practice. Here are just a few of the “Why’s” that I considered prior to flying solo.
Freedom – Many young lawyers believe that opening their own practices will free them from the responsibility of having to be at an office at a certain time. They want to set their own hours based on their most productive times of day. And to a certain degree, going solo will allow you such flexibility. But as most solo practitioners might agree, running your own practice means working at your firm and on your business 24/7. You are the captain of the ship and you must be at the helm at all times. Since going solo, I have been working longer hours than I did when I worked for a firm. More often than not, I work on weekends. As a solo practitioner, I’m normally not able to take vacations without having my phone on stand-by. The trade-off, however, is that I have autonomy over how I spend my hours, and I can easily factor in family and social time any time during the day.
Running your own practice also means you can pick and choose which clients to work with and which projects to spend your time on. You are able to make every decision that will affect your bottom line. That freedom to make your own decisions with very few restrictions and to build the kind of lifestyle you want is priceless.
Entrepreneurship - Entrepreneurship is a sexy word and a hot topic lately, but make no mistake, entrepreneurship is no fad in the legal profession. Running a law practice these days is equivalent to operating a business. Sure, many believe that the law is a profession and they argue that they went to law school, not business school for a reason, and to that I say this: if you plan on going solo, be prepared to get rid of that belief…quickly! Before making the leap to solo practice, ask yourself, “Do I have the business know-how (or am I at least willing to learn it) to operate a successful law firm?” As a solo practitioner, I spend a majority of my time focusing on the business side of things, that includes: client intake, bookkeeping, marketing, administrative work, receptionist duties, and the list goes on. You need to think about whether or not you want to spend your time on these tasks.
Furthermore, for many young lawyers, the inability to scratch their entrepreneurial itch is precisely what leads many young lawyers to dissatisfaction with the practice of law. Going solo may keep some from leaving the profession all together.
Impact - It’s no secret that while working for a firm, as young lawyers, we don’t necessarily get the client interaction and face time that we want. In many big firms, young lawyers are handed menial, mind-numbing tasks like discovery while never meeting the client whose case they can spend months working on. Being able to interact directly with clients and observe the impact that your work is having on their lives first-hand is a very important “Why” for wanting to go solo.
Aside from being able to have an impact on others as a solo practitioner, going solo will have a massive impact on you as a human being. You will quickly learn the value of strategic relationships and mentors. You will realize that although you are a solo practitioner, you are by no means alone in this practice because of the extensive network of fellow solo practitioners available. You will discover the importance of building meaningful connections and relationships with other players in your profession, in your community, and in other industries.
Happiness – One of the biggest driving factors in opening my practice was simply the fact that I was unhappy and dissatisfied working for someone else. I believed that I could help more people by doing things on my own terms. I felt empowered to call the shots. The day I announced the launch of my law practice was a happy day indeed, and I made a promise to myself to try to maintain that same enthusiasm that I felt on Day 1 throughout the year. Although admittedly, it’s difficult to maintain complete bliss every single day since solo practice does have many challenges, I can report that I am much happier now than I ever was working for someone else.
Compensation –For many young lawyers leaving law firms to go solo might mean taking a pay cut at first. It’s no secret that the lack of steady income as a new solo can be the scariest factor of opening your own practice. There will be months where you get no phone calls. There will be others months where you’re busy beyond belief. If you are someone who is not good with budgeting or you need a steady paycheck, then solo practice might not be for you.
Despite the lack of stability in income, I wholeheartedly believe that solo practitioners have the ability to earn a sizeable income. There are no limitations on the amount you can earn. You control the number of clients you work with and how much you can charge. Being able to collect payment and apply every dollar towards your salary and your business is a huge benefit of solo practice.
Going solo is no walk in the park. It can be lonely, unsteady, scary, and tough. It takes a lot of courage, determination, and a strong vision for what you want your life and career to look like. But if any of the “Why’s” I mentioned above struck a chord and you truly believe solo practice is for you, then do it!
Are you a solo practitioner already and have your own “Why” not discussed here? I’d love to hear it. Tweet me @nicoleabboud and let’s keep the conversation going.
by Amber R. Hayes, Hodson & Mullin
Many of us are just beyond the memory of the Bar Exam, having recently passed, and cringe at the thought of taking another bar exam-like test. Isn’t that what the Specialist Exam is? We ask. Isn’t just another bar exam? No thank you! But, there is no reason to fear. The legal specialization exam is merely one day long and includes both a written essay portion and multiple choice questions; and, the California State Bar Board of Legal Specialization posts sample essay questions and answers for your study and preparation. And, in my chosen discipline of family law, there is a comprehensive review course which taught me more about family law than I ever knew was possible. I contend that most specialization disciplines offer a similar comprehensive review course to help you not only prepare for the legal specialization exam but also present a unique opportunity for you to deepen your knowledge of your own field.
But there is more to specialization than taking an exam and adding another test to your personal pass rate.
If you were searching for a medical doctor with expertise specific to your issue, wouldn’t you search for a specialist? The same is true for our legal clients.
There are thousands of family law attorneys in California, but as of December 2014, only 1,328 who are Certified Family Law Specialists (2014 CBLS Annual Report). Standing out from the crowd is a great advantage in gaining clientele.
Certification as a Specialist will grant you a unique listing on the California State Bar website which will allow potential clients to locate you and your office via area of specialty, using the attorney search function. For example, my profile is found in the list of certified family law specialists. Only Specialists are given this listing with the State Bar. Only attorneys who have earned the certified legal specialist designation may hold themselves out as “certified specialists.” The public may rely on the fact that certified legal specialists have taken the time and care to demonstrate their proficiency in their practice areas. Not only are you given the State Bar listing, you can also identify yourself as a Certified Specialist with a specialized badge for your website, which signals to clients and professionals alike that you are a specialist.
But, Certification is not just an advantageous way to bring clients in your door; it is also a great referral source when you need to send a client out. I am more confident in referring clients to legal specialists because I know that certification of specialization means that the attorney has a higher level of experience, knowledge and reputation.
As a board certified specialist, you will have demonstrated to the public and the State Bar a higher level of experience, intellect, ethics, expertise, skill and reputation through both the testing and the application process. The requirements to become a specialist can be found at the State Bar website by clicking on the link to your area of practice.
As a family law attorney, my clients are either at the onset, or the height, of one of the most difficult experiences of their lives. Oftentimes, their case is complicated by child custody, asset and debt division, and spousal support. These clients are searching for expert attorneys who can guide them not only through the issues of their case, but also help them through the dissolution of their marriage, or their domestic partnership. Clients want and need to be confident in the attorney they have chosen, and my certification as a family law specialist gives them that confidence – especially once they know and understand what it means to be represented by a specialist.
The basic premise of legal specialization is to encourage attorney competence and protect our clients. A specialist stands out from other legal professionals with proven qualifications, experience and ethics which only aid in bolstering the client’s confidence in the attorney-specialist. Certifications also informs your opposing counsel that you are experienced, skilled and ethical; and, it can often help set the tone for discussions with your opposition and lend to more respect.
Becoming a Certified Family Law Specialist has opened doors and has exposed me to various organizations and colleagues who are passionate about my field of law. For example, I can now enroll and participate in the Association of Certified Family Law Specialists, whose primary mission is to advance the knowledge and rapport of Family Law Specialists. I also now have the opportunity to volunteer for the California Board of Legal Specialization and help others achieve their professional goals, just as I did.
When I received the results and the congratulatory letter that I had passed the Certification Exam, it was a defining moment in my career and one of my most cherished accomplishments. It sets me apart from my peers and tells the public that I have a higher level of experience, intellect, expertise, skill and reputation. I encourage you to become a specialist, if not for the clients or the profession, but for yourself.
by Alfonso Martinez, Family Law Facilitator, Ventura County Superior Court
Family law provides challenging and rewarding careers for any young attorney. Divorce and Legal Separation proceedings provide excellent ways to gain experience in family law. Once the parties have successfully divided their debts and assets, they are one step closer to final judgment. The preliminary and final disclosures establish the path toward this end.
The initial discovery in divorce or separation matters begin with the preliminary declaration of disclosures. The Family Code establishes requirements for preliminary and final disclosures. Special exceptions apply to summary dissolution and default judgments. This article provides an overview of the declaration of disclosure process to assist you with establishing an equitable division of your client’s assets and debts.
Family Code sections 2104 and 2105 govern the preliminary and final declaration of disclosure process and requirements. After filing and serving the Petition for either a Dissolution of Marriage or for Legal Separation, the Petitioner initiates the disclosure procedure by preparing, serving, and filing a Preliminary Declaration of Disclosure. This must be done within 60 days of filing the Petition. Similarly, the Respondent must serve his/her Preliminary Declaration of Disclosure within 60 days of filing the Response. These statutory deadlines may be extended by agreement or court order. (F.C. §2104(f)). Final Declarations of Disclosure must be served by each party before or at the time they resolve property or support issues, or no later than 45 days before the case is set for trial, whichever is later. If both parties have made a general appearance in the Dissolution proceeding, neither party can waive his/her obligation to prepare, serve, and file Preliminary Declarations of Disclosure. Conversely, parties can agree to waive their obligation to prepare, serve, and file Final Declarations of Disclosures.
If one party has complied with the disclosure procedure, but the other has not, the complying party may file: 1) motion to compel, 2) motion for an order preventing the noncomplying party from presenting evidence on issues, 3) motion to grant the complying party’s voluntary waiver of receipt of the noncomplying party’s preliminary and final disclosures, or 4) request monetary sanctions. (F.C. §2107). Finally, a court may set aside a judgment if the disclosure requirements were not met. (F.C. §2107(d)).
Disclosure requirements differ in summary dissolution proceedings and in cases involving default judgments. In summary dissolution proceedings the exchange of Preliminary Declarations of Disclosure are done by completing the worksheets provide in the Summary Dissolution Information packet (Judicial Council form FL-810). Final Declarations of Disclosure are not required in summary proceedings. (See F.C. § 2109). In true defaults (where there are no marital settlement agreements) only the Petitioner is required to serve Preliminary Declarations of Disclosure and may waive his/her obligations in connection with Final Declarations of Disclosure. In default judgments with agreements, the Family Code requires both parties to exchange Preliminary Declarations of Disclosures. The parties may elect to waive the Final Declaration of Disclosure requirement.
by Roey Z. Rahmil, Shartsis Friese LLP
Anna Romanskaya, a partner and head of the family law practice at San Diego’s Stark & Ambrosio, recently became chair-elect of the American Bar Association’s Young Lawyers Division (“YLD”). Anna will be one of the first chairs of YLD from California.
Anna’s involvement with the ABA began when she was a student at Thomas Jefferson Law School in San Diego. After graduating, she continued her involvement with substantive law sections as well as YLD, and served as Chair of the San Diego County Bar Association’s New Lawyer Division. She rose through YLD’s ranks to become Chair in summer 2016.
YLD, Anna explained, is the “home for young lawyers in the ABA,” and is the “landing ground” for young lawyers who are ABA members aged 36 or younger or in their first five years of practice (the same guidelines governing CYLA membership). YLD features 35 specialty groups covering diversity and outreach, practice management, practice settings, and substantive practice areas.
Anna encourages young lawyers to get involved with the ABA and YLD, as “its benefits complement local involvement.” Just as local bar associations provide opportunities to meet counterparts on the local front, YLD presents a way to be recognized on a much larger scale. Young lawyers who are actively involved with YLD—which charges no additional dues—can write on substantive areas of the law, present CLEs, and meet and engage with other attorneys nationwide.
YLD also offers benefits for attorneys who do not get heavily involved in leadership activities. The Young Lawyer, YLD’s “premier publication,” focuses on practical skills like business development, mentorship, and time management that are useful for new attorneys across all practice areas. YLD also offers educational teleconferences on subjects such as “Lawyers as the Agents of Change,” “Administrative Law,” and “Case Management for Lawyers.”
Anna encourages young lawyers to get involved with YLD. Her involvement has benefitted her by providing “relationships that [she] would never have had the chance to build.” In addition, YLD provides the opportunity for young lawyers to take part in policymaking efforts before the ABA’s legislative arm. YLD has taken part in formulating loan repayment programs, diversity and inclusion initiatives, and other efforts that have taken hold on the national stage.
For more information on YLD, visit http://www.americanbar.org/groups/young_lawyers.html.
Under the Patient Protection and Affordable Care Act (PPACA) the individual shared responsibility provision, as referred to as the “individual mandate”, requires you, your spouse, and your dependents to have qualifying health insurance for the entire year, report a health coverage exemption, or make a payment when you file your tax returns.
What is qualifying health insurance?
Qualifying health insurance is defined as Minimum Essential Coverage (MEC) and includes:
• Most health insurance coverage provided by your employer;
• Coverage provided under a government-sponsored program - including Medicare, Medicaid, and health care programs for veterans;
• Health insurance purchased directly from an insurance company;
• Other health insurance coverage that is recognized by the Department of HHS as MEC; and
• Health insurance purchased through the Marketplace
• Most health insurance coverage provided by your employer;
• Coverage provided under a government-sponsored program - including Medicare, Medicaid, and health care programs for veterans;
• Health insurance purchased directly from an insurance company;
• Other health insurance coverage that is recognized by the Department of HHS as MEC; and
• Health insurance purchased through the Marketplace
Will I be eligible for any premium assistance to help pay for my coverage?
You may be eligible for the premium tax credit if you purchase health coverage through the Health Insurance Marketplace. For example, if you are not eligible for minimum essential coverage that provides minimum value and is considered affordable (self-only coverage is less than 9.5% of your W-2 wages), through your employer, you may be eligible for premium assistance.
When can I sign up for health coverage through the Health Insurance Marketplace?
The Marketplace annual open enrollment begins November 1, 2015, and continues through January 31, 2016. If you experience a special status change event outside of the open enrollment period (for example, you lose your coverage through your employer), you will be eligible to enroll through a special enrollment.
What if I choose not to have qualifying health insurance?
In 2015, the annual penalty is the greater of:
• $325 for each adult and $162.50 for each child, up to $975 per family.
• 2 percent of the tax filer’s annual household income minus the federal tax-filing threshold.
• $325 for each adult and $162.50 for each child, up to $975 per family.
• 2 percent of the tax filer’s annual household income minus the federal tax-filing threshold.
In 2016 and beyond, the annual penalty is the greater of (for later years, the penalty will be indexed based on the cost of living):
• $695 for each adult and $347.50 for each child, up to $2,085 per family.
• 2.5 percent of the tax filer’s annual household income minus the federal tax filing threshold.
• $695 for each adult and $347.50 for each child, up to $2,085 per family.
• 2.5 percent of the tax filer’s annual household income minus the federal tax filing threshold.
Note: The penalty will be capped at the national average premium for the lowest-cost Bronze plan available through all of the marketplaces.
Where can I find health insurance options for me and my family?
The State Bar of California sponsored Healthcare Program helps California lawyers gain access to qualifying health coverage. The program connects solo practitioners and firms of all sizes with sponsored Broker Administrators who can assist State Bar members and their families to obtain quality health insurance products and to do so conveniently. Visit CalBarConnect.Com for additional information.
Ruben Reyes is Chair Emeritus of the State Bar Committee on Group Insurance Programs. He is Assistant Vice President, Compliance Counsel for Arthur J. Gallagher and has over 12 years of employee benefits and ERISA experience working with both public and private sector employers.
Given the legal job market many young lawyers are faced with the decision of whether to set up their own law practice. If you do keep these in mind:
You must value your work at a small or large law firm. There are advantages to both.
At a small law firm, you gain more hands-on experience because there are fewer lawyers; don’t shy away from those challenges. Also, you have greater flexibility in what type of cases you can do, more variety, and close mentorship from more experienced attorneys.
At a large law firm, you have greater resources and assets. If it agrees to accept an important pro bono case it will have the resources. However, you should not shy away or ignore the smaller routine cases. You can still get great experience, more varied cases, and help people that still cannot afford representation in smaller cases.
It is a simple yet profound tip that many young lawyers forget. You should treat everyone with courtesy particularly if they are in a lower economic/professional level than you. You will interact with court personnel, clients, opposing counsel, judges, etc. Courtesy is essential, and those who are not your peers professionally will help you when you need it the most.
It is a rare circumstance that a beginning lawyer is not going to have to work long hours. Work hard but do not forget to make time for friends, loved ones, family, and for pro bono work. You need to keep a balanced life. You can also do pro bono community work that is not just legal. In our view, lawyers play a very important role in our community, are setting the tone for the future, and provide leadership. Simply put: make the time.
Just because you work for a particular organization or firm does not mean you should give up your independence as an attorney at law. Use your judgment and ethics to decide what actions you should take in your life and your profession. Remember why you went to law school and why you are an important member of the bar and your community.
Reprinted from http://www.huffingtonpost.com/jeena-cho/stop-training-lawyers-to-be-jerks_b_6598160.html (originally posted on February 3, 2015) with permission of the author.
As I reflect back on my 10+ years of law practice, I received plenty of advice -- some I followed, some I ignored. Often, the advice was good and helpful. Other advice that I thought was good turned out to be bad. I wanted to share one particular piece of advice I regretted taking.
When I was a young lawyer, I was invited to sit in on a deposition with one of the managing partners at the firm. This was my first deposition, and one of my first experiences coming face to face with an adversary. When I got to the conference room, I asked opposing counsel and his client if they wanted anything to drink and if they were comfortable. I don't recall if they asked for anything, but what I do remember is what happened after the deposition. The managing lawyer pulled me aside and told me never to do that again. It was not my job to offer water or make the opposing side comfortable and in fact, it was my job to do the opposite. To make them as uncomfortable as possible.
This was just one example of the mentoring and advice I received from this partner, but it tainted the way I practiced law for a long time. His tactic was to be the most aggressive man in the room, to be the most boisterous and to never give an inch. I tried my best to mimic his tactics. I wanted to be tough. I wanted to win. I thought if I just followed his advice, I'd be just as successful as he was. But I wasn't.
As I reflect back on those very impressionable years of my professional life, there were many things I failed to see. If I could go back and do it all over again, I'd tell myself the following.
Going back to the example of not offering the opposing counsel and his client water to make them feel “uncomfortable,” I wonder if that actually gave us any strategic advantage. We can debate whether such tactics work or not. However, to me, it doesn't matter. Even if not offering water did somehow give us a slight edge, I still believe I should have offered it. I became a lawyer to pursue justice and to help people. This means that I have to maintain my humanity. Maintaining humanity requires that I live in a manner consistent with my values, and one of the values I hold most dear is kindness. I do not believe you have to be unkind or cruel to win. In fact, it's been my experience that the more I can lead with kindness, the better the outcome I can achieve for my client (and often for all the parties involved).
When the managing partner was teaching me the ropes of how to be an effective lawyer, what he didn't consider (and what I failed to see) is that he and I are very different. For one, he was a white man, 6'2" with a physique of a baseball player. I am a 5'5" asian woman weighing in at under 130 lbs. For me to mimic his persona is as ridiculous as me putting on his suit and marching into court. For me to pound my fist against the podium and raise my voice simply didn't work. It wasn't my style. Finding your own unique lawyering style is difficult to do, and it takes time. But just as you have to find suits that fit your personality and style, you must also develop your own lawyering style.
There's a temptation to leave behind your humanity and your values at the door when you walk into the office or the courtroom. I believe this is where you need to hold onto your values and sense of humanity the most. Being a good human means recognizing the common humanity in all of us. Even our opponents. I don't need to see them as the “enemy.” They're just part of this case and they have their role, I have mine. I have to recognize that just as my client has his or her perspective, pain, trauma, anger, sadness and probably dozens of other emotions, so does the opposing side. And just like me, they have people they love and that love them. They also experience pain, joy and all the other emotions that life evokes. Don't use zealous advocacy as an excuse to be unkind.
I shared this story with a few of my female lawyer friends, and many had similar stories. One attorney told me that her boss told her to never shake hands with the opposing party. Another attorney said her boss always turned down Continuing Legal Education (CLE) or speaking opportunities and explained he would “never give away his knowledge” that way, because he thought the other attorneys would just use it to compete with him.
When I hear these stories, I feel a sense of loss and sadness. Loss for the values in our profession. Loss for our common humanity. Loss for common decency and kindness. And I feel more committed to practicing law in a way that feels consistent with my values regardless of what others do. I'd like to challenge you to consider what you value and aligning your law practice to those values as well.
Jeena Cho is co-founder of JC Law Group PC, a bankruptcy law firm in San Francisco, CA. She is the author of the upcoming American Bar Association book, The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation. She offers mindfulness training to law firms. She can be reached at email@example.com or on Twitter at@jeena_cho.
Being a lawyer isn’t easy, and neither is the sheer feat of becoming one—particularly in California. Low bar passage rates are one hurdle—the challenges of finding a job are another. In 2013, California had approximately 2.5 law school graduates for every legal job,1 and according to the Georgetown University Law Center, the legal market is seeing only marginal improvements in 2015.2 The question plaguing the minds of many young graduates is how they will secure a job, given the current prognosis for the legal market. While there are no clear-cut answers, this article discusses four strategies that can help recent graduates on the employment front: 1) exploring alternative legal careers; 2) building skills and contacts through legal clinics; 3) acquiring expertise and an expanding network through MCLE courses; and 4) strengthening your resume with certifications.
Unemployed and underemployed attorneys who are willing to think outside the box may find refuge in alternative legal careers. Hillary Mantis, author of Alternative Legal Careers, describes the field of financial compliance as a growth industry.3 It is also one in which JDs may find a competitive edge. As advancements in technology have increased the fluidity of monetary transactions, the need for financial compliance professionals has grown at a rapid pace. Resources, such as www.fincrimejobs.com, can help navigate law school grads to open positions at institutions like Chase, Western Union, and Citi Bank. While many of these jobs are traditionally taken on by MBAs, a legal background makes candidates stand out from the crowd in a positive way. Financial compliance is a nuanced and detail-oriented field, requiring the type of attentiveness that law schools instill in their students.
During the job hunt, it can be challenging to resist feelings of restlessness and stagnation. After all, you’ve worked hard, earned a law degree, and passed the bar exam. While some may tell you that “finding a job is your job,” it simply isn’t feasible to spend 10 hours a day networking and applying to various postings. Keep your mind sharp by volunteering at legal clinics like the LACBA Domestic Violence Project. You’ll hone your legal skills, put your own challenges in perspective, and even have the opportunity to meet other like-minded attorneys who believe in lending a helping hand to those in need.
When it comes to fulfilling MCLE credits, there are two avenues: online or in person. While the generation of recent law graduates is more inclined towards online portals, it could be to our detriment. First, in person MCLE classes usually focus on a specific area of law. Anyone in attendance will share your interest in that particular area and most likely be receptive to connecting with you. MCLE classes are not only a great learning opportunity, but also a potential way to connect with more experienced attorneys.
Many new attorneys encounter the “no experience” Catch 22. You need experience for the job you want, but you can’t get experience unless you have that type of job. While there is no silver bullet to overcome this conundrum, certifications can help, as they are designed to measure someone’s knowledge and skill in a specific practice area—sometimes with enough sufficiency to compensate for a lack of experience. Certifications are helpful for getting your foot in the door for specific areas of law (such as mediation and financial compliance), as well as for niche areas, such as e-Discovery (which will only become more relevant as time goes on).
The one drawback to certification programs is their cost. However, the investment can open many more doors, enhance your resume, and expedite your search for employment. Additionally, enrolling in a certification program helps account for how you spent your time post-graduation when interviewing with potential employers. The key to finding a job is exhibiting a positive and proactive energy that an employer wants to see at their firm or company. Utilizing these strategies can help you harness these qualities and embrace success when it comes. For more tips, read “Job Resources for the Unemployed, Underemployed and Unappeasable.”
1 Wright, Joshua, The Oversaturated Job Market for Lawyers Continues, and On-The-Side Legal Work Grows, Economic Modeling Specialists Intl., http://www.economicmodeling.com/2014/01/10/the-oversatured-job-market-for-lawyers-continues/ (last visited August 23, 2015).
2 Georgetown Law, Georgetown Law and Peer Monitor Release 2015 Report on the State of the Legal Market, https://www.law.georgetown.edu/news/press-releases/georgetown-law-and-peer-monitor-release-2015-report-on-the-state-of-the-legal-market.cfm (last visited August 23, 2015).
3 Mantis, Hillary, Where to Look for Alternative Legal Jobs, the National Jurist (May 13, 2015), http://www.nationaljurist.com/content/where-look-alternative-legal-jobs.
A monolingual Spanish-speaking single mother. A young professional who recently emigrated from India. A victim of domestic violence from the pro bono clinic. These are just a few clients that I have assisted in my practice over the last few months.
In an increasingly diverse society, cultural competency is becoming imperative to the practice of law. According to the National Center for Cultural Competence (NCCC), cultural competence “embraces the principles of equal access and non-discriminatory practices in service delivery.”1 Cultural competency is achieved by identifying and understanding the needs and help-seeking behaviors of individuals. More importantly, the practice of cultural competency is driven in service delivery systems by client preferred choices, not by culturally blind or culturally free interventions (emphasis added).2 The legal industry is primarily a service-based industry, and the foundation of the practice of law is communication with clients. Understanding the needs of clients, and the cultural differences that may arise during communications with clients can make the delivery of legal services effective. With the American Bar Association’s mandate to improve access to lawyers and legal services for those of moderate incomes, cultural competency will continue to play an important role in the future of the legal profession, both for attorneys and for clients.
With these guiding principles in mind, below are some practices and policies that every lawyer can learn and implement in an effort to become culturally competent.
In order to be mindful of the cultural differences and similarities in clients, it is important to be mindful of the characteristics that can define different cultures. Culture is often described as the combination of a body of knowledge, a body of belief, and a body of behavior.3 Culture not only refers to the superficial features of a person, such as their appearance, but also refers to a person’s personal identity, language, thoughts, communications, actions, customs, beliefs, values, and institutions that are often specific to ethnic, racial, religious, geographic, or social groups.4
While appearances and linguistic differences are clear indicators for the need to be culturally competent, other characteristics such as personal identification can be difficult to ascertain. One example of this is simply the way that we refer to people. If a client introduces herself using a certain class="anchor" name or other specific way, keep that in mind. Be mindful of the way a client refers to himself or herself, and if you are unsure of how to refer to him or her, ask, do not assume!
Recently, in a seminar that I attended about providing legal counsel to homeless youth, one of the speakers mentioned that in her non-profit practice, they found that young homeless clients are more likely to feel comfortable if they are sitting closer to the exit than the attorney. Due to past experiences, she said, homeless youth are likely to distrust authority, and are less likely to have open conversations in uncomfortable environments -- environments that are too ostentatious or too restrictive.
In learning what “culture” means, it is best to learn what it means in the context of the community that you serve.
Diversity is a catch-all word for the notable characteristics in a person. Diversity has many avatars, and learning how to convey information to diverse clients can be a career-defining action. A little bit of research and understanding can go a long way. Conveying information to clients so that it is easily understood is an invaluable skill, whether conveying to someone with limited English proficiency or literacy skills, an individual with disabilities, or someone who has never dealt with an attorney before.5
Similarly, valuing diversity within the legal profession is just as important. We can learn important lessons in cultural competency through each of our colleagues, whether they are disabled, ethnically diverse, or bring a different perspective to the table. Making the effort to attend events for diverse bar associations can be the first step in learning cultural competency in the legal profession. LGBT bar associations; ethnic bar associations, such as National Bar Association, Asian American Bar Associations; and religious bar associations, such as J. Reuben Clark Bar Association are some of many safe places to ask questions about certain diverse groups in order to increase cultural competency.
While speaking with colleagues about cultural competency recently, I found that one of my colleagues was in favor of learning about a client’s culture or values beforehand, and making it a topic of conversation in the first meeting to build a rapport. Another colleague, a female attorney, disagreed and said that she would proceed the same way with any client, and not make a client conscious of the differences in his or her background.
I believe the right answer is to set boundaries in conversation, along with a personable tone; and then assess each client’s reaction and comfort level before asking questions that could be perceived as personal, such as country of origin, family background, education, etc. In certain situations, such as discovery during litigation, questions about background may be inevitable. In other legal services, such as contract review or negotiations, the same questions can be irrelevant and intrusive. This can lead to distrust, especially in clients who come from backgrounds where law enforcement and legal counsel are traditionally more intimidating than helpful, whether in another country or a disadvantaged neighborhood.
Engaging and staying attuned to each client’s boundaries and comfort level can provide a solid foundation to build and nurture relationships based on trust and mutual respect.
The field of medicine encourages, and often requires, professional training in cultural competency prior to communicating with patients because such culturally-competent communications foster effective and honest relationships and trust. Legal service delivery, whether litigation or transactional, requires the same level of respect and competence in an increasingly diverse world.
Once we acknowledge the importance or cultural competency, and the fact that cultural competence is a developmental process that evolves over an extended period, we can begin to learn and improve the way that we interact with clients.6
1 National Centre of Cultural Competence, http://nccc.georgetown.edu/foundations/frameworks.html (last visited July 10, 2015).
3 National Institutes of Health, http://www.nih.gov/clearcommunication/culturalcompetency.htm (last visited July 10, 2015).
Chinese companies often face questions regarding their legal obligations when actions arise in the U.S. involving products they manufactured. Attorneys advising Chinese companies on their legal obligations with respect to lawsuits in the U.S. must advise their clients on both the U.S. discovery process, which can be alien to Chinese companies, and the requirements under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention). Similarly, U.S. attorneys seeking discovery from Chinese individuals or corporations must understand the procedures and limitations of conducting discovery in China, which can be quite unfamiliar even to experienced attorneys.
While U.S. discovery rules provide litigants liberal access to the opposing side’s documents, the scope of discovery in China is much more restricted. Under the People’s Republic of China (PRC) procedural rules, a party must only present sufficient evidence to support its own claims or defenses.1 In contrast, in the U.S., discovery is intended to uncover both supporting and damaging evidence from parties and third parties.
Thus, PRC companies are often surprised to learn that despite not being a party to a lawsuit, they may be compelled to produce evidence in connection with litigation. The PRC Civil Procedure Law does not obligate third parties to provide evidence for a proceeding in which they have no interest. In the U.S., however, if a party is within a court’s jurisdiction, a court may order a non-party to a proceeding, through a subpoena, to produce documents or submit to a deposition which require responses under penalty of perjury.
However, if a class="anchor" named party or a non-party is located in China, parties to the proceeding in the U.S. may face extra hurdles to obtain discovery. Under U.S. law, documents located abroad may be obtained pursuant to the Federal Rules of Civil Procedure (FRCP)2 or the Hague Convention.3 When a U. S. court has personal jurisdiction over a foreign company, the FRCP is the primary means by which parties obtain discovery. FRCP Rule 45 permits courts to command third parties to produce documents based on a foreign third party’s relationship to a class="anchor" named party through the subpoena power of the court. However, the court’s ability to exercise personal jurisdiction over the foreign company must be established. A PRC company may be within the court’s jurisdiction if it has assets, a branch office, or affiliate company in the U.S. or if it conducts business in or travels to the U.S. enough to establish sufficient contacts for personal jurisdiction.4
Where the foreign entity is not subject to the personal jurisdiction of U.S. courts, parties must resort to the Hague Convention to obtain discovery. China became a signatory to the Hague Convention in 1998. The Hague Convention provides procedures for the compulsory production of evidence using a form “Letter of Request,” which can be sent directly by the court in the U.S. to a foreign central authority. Upon application by a party to the litigation, the U.S. court transmits the Letter of Request for discovery to the designated Central Authority in China, who then transmits the request to the appropriate Chinese judicial body where the discovery is located for a response.5
Although China has declared it will accept Letters of Request issued for the purpose of obtaining pre-trial discovery of documents, it will only do so if the Letters of Request clearly enumerate the document requests and the requests establish a direct and close connection with the subject matter of the litigation.6 Once a Letter of Request has been reviewed and issued with a seal of approval from the Chinese Ministry of Justice, it is sent to the local court and, in turn, the Chinese company which must comply pursuant to Chinese law and China’s commitment under the Hague Convention. This may entail placing a “litigation hold”7 on documents relevant to the litigation, or producing information or physical or electronic documents in accordance with U.S. rules and methods of discovery as discussed above. Although the Hague Convention process can help to obtain necessary discovery, it is important to keep in mind that it takes the Chinese judiciary approximately six to twelve months to process Hague Convention requests. 8
In sum, even if a Chinese company is not subject to jurisdiction in the U.S., the Hague Convention enables parties in a U.S. proceeding to seek physical and electronic evidence from a Chinese company if the litigation calendar allows for a six to twelve month waiting period to complete discovery. Despite the complexity and time-consuming nature of this process, the Chinese Ministry of Justice has emphasized its intent to strengthen “cooperation with other countries in the judicial field.” 9
Chinese manufacturers whose products make their way into the U.S. may become embroiled in U.S. litigation, either as a party to the suit or as a non-party subject to document requests during the discovery phase of litigation. It is important for these companies to understand that even if they are not subject to personal jurisdiction in the U.S., they may be sent “Letters of Request” under the Hague Convention requiring them to cooperate and provide evidence with a close connection to the subject matter of any lawsuits. Therefore, Chinese companies would be wise to seek the advice and potential protection of counsel in navigating the maze of U.S. discovery obligations and the challenges it presents.
2 Assuming the case is pending in federal court. The US court system is divided into federal and state courts. Because most litigation involving foreign parties takes place in federal courts under diversity jurisdiction, this article is based on the Federal Rules. Procedural rules in state courts vary by state.
3 Both the US and the PRC have signed the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which is applicable to service of documents from a member country to another member country.
4 The U.S. Supreme Court has decided a number of cases that have established and refined the principle that it is unfair for a court to assert jurisdiction over a party unless that party's “minimum contacts” with the state in which that court sits are such that the party “could reasonably expect to be hauled into court” in that state.
5 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Article 2.
6 Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Article 33 and Status Table ("Hague Convention"), available at http://www.hcch.net/index_en.php?act=conventions.status&cid=82
7 Written directive advising custodians of certain documents and electronically-stored information (“ESI”) to preserve and not destroy or alter potentially relevant evidence in anticipation of future or pending litigation.
8 See “time for execution” under Chapter 1 (Letters of Request), available at http://www.hcch.net/index_en.php?act=authorities.details&aid=490
A: A wide variety, depending on if the matter is state or federal. Some states, like California, have a central panel of administrative law judges with general jurisdiction over many agencies. The cases they hear include professional license discipline, disability appeals and teacher dismissals. Federal administrative law judges are employed by one agency and preside over matters for that agency only; like the Social Security Administration, the Securities and Exchange Commission, the Merit Systems Protection Board, and the National Labor Relations Board.
A: The combination of holding hearings regularly and writing decisions. I enjoy analyzing the law from a neutral perspective. I had a lot of experience writing and working with judges before I became an ALJ. I’m also committed to public service. It seemed like a natural fit.
A: Any litigation experience is a good foundation; it’s important to have a demonstrated record of writing and courtroom experience. Demeanor and temperament are also critical. The path to becoming a federal administrative law judges is competitive; it typically requires scoring well in an exam and interview process. The exam is only offered about once every five years. State administrative law judges also have exams and interviews, although they may be hired more often. Either way, plan ahead by learning what the requirements are and having your application materials in order.
A: Use your controlling document [the complaint or accusation, or whatever the initial filing is] as a map and checklist. Make sure that you’ve elicited testimony or admitted exhibits that relate to each paragraph of that controlling document. It’s what the judge will use to determine whether you’ve adequately proven or defended your case. Also address any adverse facts or law in a straightforward manner. Aim for consistency in your documentary and testimonial evidence. It will affect the credibility of your presentation otherwise.
A: I’ve found administrative law to be the ultimate form of public service. Most of the time someone who appears before me is in a courtroom for the first time. I directly influence how that person views our entire legal system, for better or for worse. It’s challenging to consistently maintain impartiality, patience, and good listening skills. But my decisions have profound impact on the lives of the people who are in my courtroom. It’s important work deciding whether someone should receive disability benefits, or keep their professional license. That can be incredibly gratifying; knowing that I’m making a difference in one person’s life, or in protecting the public. For me, it’s the reason why I went to law school in the first place.
A. Very common I see attorneys not being procedurally prepared. Some appear confused, or unaware of why they are even there. All attorneys should speak to your client about the case, read the file, review local court rules, and watch a courtroom to get a feel for how it operates. You may also speak with colleagues, mentors (which you should have) about how to handle a specific hearing or trial. Bottom line, procedurally educate yourself.
A. Practice, practice, practice! I encourage all attorneys to practice and fine tune their public speaking skills. One of the best ways is to joint your local Toastmasters group. Toastmasters is a public speaking skills group that meets at various times throughout the day. You can also volunteer for the county public defender office, district attorney office, or law firm to get some “courtroom” time.
A. It is absolutely normal to feel nervous when making court appearances or doing trials. This is true no matter how many years you have been practicing. If it is overtly noticeable, use it to your advantage to try to make yourself endearing to the jury (assuming there is a jury trial). If not, remember that all bench officers are human too.
A. The best advice I was given when I started my legal career, and it would apply whether or not someone aspired to become a judicial officer or not, is “always remember that two things will always follow you, your reputation and integrity (or lack thereof).”
A Question-and-Answer Session with Judge Joan P. Weber of the San Diego County Superior Court and 2014–2015 President of the California Judges Association, as told to Alex Calero
Roey Z. Rahmil
Despite continued improvement in the legal job market, competition for many entry-level and lateral positions remains fierce. While the resumé is only one part of a typical job application, it is likely the document that potential employers will review first; their impressions of a job candidate’s resumé will likely color their evaluation of the rest of that candidate’s application materials. The following tips for improving your resumé, collected from senior hiring attorneys and young lawyers alike, can help ensure that your resumé has the desired effect.
Be honest to a fault. Everything on your resumé must be true. There are no exceptions. Lawyers are trained to detect dishonesty and will spot any embellishments, overstatements, or inconsistencies, no matter how innocent. Getting cross-examined during a job interview is not pleasant and will not result in the outcome you are hoping for.
Proofread, proofread, proofread. Lawyers pride themselves on attention to detail. While this attitude can cause occasional awkwardness at social gatherings, it also helps ensure that briefs and other documents lawyers prepare on behalf of clients are as close to perfect as possible. Hiring attorneys will expect the same from your resumé. Fair or not, meeting this expectation will give your resumé the best chance of impressing who it needs to. Besides, typos and grammar/punctuation errors are, at the very least, distracting, and will interrupt the employer’s evaluation of your credentials.
Treat your resumé like a writing sample. Your resumé is often the first chance employers have to judge your writing. You should craft your resumé as you would any written communication: be concise, be concrete, use the active voice, and choose each word with precision and purpose. For example, “assisted with the drafting and revision of various agreements” is wordy and obtuse; try “drafted financing documents for $40 million capital investment” instead.
Be mindful of aesthetics. There are myriad articles on resumé formatting for a reason. Choose a readable and professional font, create a logical hierarchy for headings and descriptions, and use consistent typeface choices. The visual structure of your resumé should add to your candidacy, not distract from it. Additionally, when you submit a resume via email, send a PDF instead of a word processing document. PDFs look cleaner and more professional.
Emphasize practical skills and real-world achievements. Employers are looking for lawyers with practical skills who can get a running start; they would not be hiring otherwise! It’s up to you to show potential employers how you can help and why they should trust you. If you’ve obtained good results for clients in law school clinics or with a previous employer, don’t be shy about highlighting those accomplishments (while, of course, respecting confidentiality obligations). And noteworthy experience, even if it doesn’t seem earth-shattering to you, is worth noting: employers need new lawyers who can take on even mundane tasks without needing too much supervision.
Consider customized versions. You may be seeking jobs from different kinds of employers. Law firms, corporations, governmental entities, and nonprofits will each prioritize different experiences and skills. Your undergraduate finance coursework, while impressive for an in-house position, may not go far with a criminal defense firm. You can use customized versions of your resumé to highlight items that will be of interest to specific employers. A word of caution: be sure to remember which version of your resume you submitted when you show up for your interview.
Be prepared to talk about anything on your resumé. Anything on your resumé is fair game during an interview. And it’s a good thing, too: interviewers can only talk about legal matters for so long, and discussing novel topics can be a chance to set yourself apart. So if your resumé notes your senior thesis on Norse mythology, review it before an interview; you never know when your interviewer might have a master’s degree in Scandinavian history. Likewise, if you advertise fluency in a foreign language, don’t be surprised if an interviewer starts asking questions in that language!
Get a fresh pair of eyes. The more you stare at your resumé, the less likely you are to catch errors, awkward phrasing, or accidental nonsensical sentences. Get a friend or family member—preferably a non-lawyer—to give your resumé a fresh look. If it makes sense to them, chances are it will make sense to a potential employer.
As an aside, this article presumes that you are accompanying your resume with a well-crafted cover letter. Unless a job posting specifically instructs you not to send one, sending a resume without a cover letter tells employers that you are putting little effort on your job search. Your cover letter should identify, with specifics, why you would be a good match for the employer (without simply mimicking language from its website); state (in tasteful terms) why you are seeking a new position and/or location; and emphasize the value you can add to the employer’s business.
In conclusion, your resumé is a prime opportunity to show prospective employers that they should pay attention to your candidacy. The way to make sure employers take your resumé seriously is to take it seriously yourself; spending just a little extra time on this important document can significantly improve your chances of obtaining an interview. For the interview, you are on your own!
Kyle W. Nageotte
Over 80% of California’s new lawyers enter the workforce with some kind of student loan debt. This debt, which in many cases is in excess of $100,000, can be crippling on a young attorney’s finances, and significantly influences the profession’s ability to provide legal services to California’s diverse population.
While discussing student loan debt may be uncomfortable, it’s important for new attorneys to do their research, make a plan, and act swiftly to ensure they receive the benefits of the various public and private loan repayment options. The following are a few items new attorneys should consider while getting started.
When I was in law school, no one taught me what networking was or how to do it. But I figured, if I wanted to “network,” I should attend some of those networking events and maybe I would meet someone who would help me find a job. But it was a trip to the dog park where I learned that networking is not about who you meet or whether these events will help lead you to a job prospect. In my experience, successful networking is based on simply building friendships.
On a cool San Francisco day, I was informed that my contract attorney work had run its course. I did not particularly enjoy the job, so I was glad to see it end. But, as a recent grad, I had rent due and student loans to pay. With no prospects lined up, I went for a stroll to the local dog park, where I met Andrew and his adorable Basenji, Chester. Our dogs played on the hillside while we made small talk about our dogs and where we lived. In that small talk, we realized we were both lawyers, we both went to the same law school, and we had a former employer in common. Andrew described the woes of his first year associate who he just fired. Within 20 minutes, I had a job interview the following day and in 24 hours, I had a job offer.
I didn’t go to the dog park to “network.” Instead, I was just making friends. It was that day at the dog park that taught me I was “networking” all wrong. The sooner you view networking as making friends, the sooner you will enjoy it and the sooner you will be successful at networking.
You don’t have to go to the dog park to do be successful at networking. Traditional lawyer networking venues are appropriate. Get involved in groups like CYLA and your local barrister’s group. Get involved. Apply to join the board. You will meet lawyers and make great friends. Stay involved for the long-term. Your meaningful friendships, or networking contacts, are not cultivated over the one-time meeting at the local barristers’ luncheon.
Before I reveal the secrets passed onto me from our esteemed judiciary, let me tell you what I learned while researching this article:
started by researching the Judges and Commissioners around the State of California, including a review of articles written, accolades given, and outreach programs they participate in. Judges don’t just simply sit on the bench and hear cases, issue rulings, and render judgment. They are actively involved in their communities and in the advancement of the profession. In fact, each of the Judges and Commissioners interviewed was class="anchor" named as Judicial Officer of the Year, holds a position as a Presiding Judge, or has been recognized by the legal community as committing time, effort and energy to the advancement of the legal profession.
Research your Judge.
(1) Review any online profiles – especially any profiles included in the Section pages on the California State Bar website. These profiles include information about volunteer and charity work, and a description of the activities the judge has engaged in to benefit the legal community – all key details in discerning what is important to your particular judge, which will aid in establishing your professional relationship with them. A productive, positive relationship between the Bench and the Bar not only helps the new attorney navigate otherwise murky waters, but can only work to helping the client base have a more positive experience with the legal profession. (In fact, most of the biographical information contained herein was taken from the Section pages).
(2) Take some time to sit in the courtroom of the Judge before the day of your appearance. Observing how the Judge conducts the courtroom will inform you of the etiquette expected from that Judge. While it is true that the Elkins Commission and Task Force (http://www.courts.ca.gov/documents/elkins-finalreport.pdf) calls for streamlined courtroom rules and governing local rules of Court, it is also true that each Judge has different etiquette and conduct expected of attorneys, litigants, and clients. Take note of the judge’s demeanor, use of his or her bailiff, assistant and clerk, and how he or she addresses attorneys versus self-represented parties.
Following my research, I interviewed the Judges with a specific focus on advice to new attorneys embarking on their first appearances in court, including traps to avoid, tools to sharpen, and conduct to hone. The interviews were held in chambers, over the phone and through an email exchange. So here’s my second bit of advice:
Talk to your Judge.
Take some time to talk to the Bench when you’re not in Court. Ask them questions about what they expect in their courtroom, or what they think you should know as a new lawyer (be mindful to shy away from any questions or discussions that could be viewed as ex parte communication). In all likelihood, the Judge will thoroughly answer your questions and will be impressed that you took the time and initiative to ask. More importantly, knowing what to expect of the Judge, and what the Judge expects of you, before you walk into the courtroom will give you more confidence and help calm your nerves.
Judges are not as intimidating as you may believe as a new lawyer and they have a lot of good advice. Some of the Tips included in this article are particular the judicial officer, but there was a running theme of the SUPER SEVEN SAVERS, found at the bottom of this article, which you might want to tear away and keep with you as you begin your career in the Law.
Commissioner Sue Alexander (Alameda County Superior Court) was class="anchor" named the Judicial Officer of the Year for 2012, for good reason. She has been an active member in the Judicial Council, Family/Juvenile Advisory Committee, Elkins Task Force, Elkins Recommendation Committee, Family Law Curriculum Committee (CJER), AOC Representative to the Department of Child Support Services Judicial Stakeholders Committee and Computer Development, CFCC Resource Guidelines Drafting Team, CFCC Judicial Officer Subject Matter Expert to CCMS, CFCC 1058/1059 Budget Allocation Committee, CJA Family Law Committee, CJA Executive Board, CJA Foundation Board, CCCA Board, Joint Advisory Task Force on the Legal Representation Pilot Project, and various committees for Alameda County Superior Court including but not limited to Community Focused Court Planning (Strategic Planning), Family/Juvenile Ad Hoc Committee, as well as the 1058 Implementation Committee Chair.
For those of you entering the practice in ALAMEDA COUNTY, Commissioner Alexander is an excellent resource for your ethics questions, as teaching ethics at the college level is how she spends her spare time.
Have a Plan
A good action plan for the course of litigation will save the Court time, save your client’s money, and prevent unnecessary argument over issues that are easily resolved. Commissioner
Alexander suggests you utilize the Meet-and-Confer time to plan out, with the help of your opposing counsel, the issues that are amenable to settlement, identify issues that require judicial intervention, and set agreements into Stipulations. Discuss with opposing counsel, in advance, the option and/or requirement for a continuance (do not appear on the day of the hearing and advise the court that a continuance is needed – be respectful of the Court’s time and calendar and tell your judge in advance, through Stipulation, that an advanced hearing date is required). Not only should you map your litigation course, you should also plan ahead for court appearances: Consider the line through security, question whether you need to provide your own court reporter, arrange in advance for an interpreter, and make sure you coordinate with your client, witnesses and reporters to arrive to the hearing in a timely fashion.
Find the Phrase That Pays
Every Judge knows that client’s will sometimes put you in the precarious position of making an argument with which you either don’t agree or you know is a losing argument. Commissioner Alexander points out that every bench officer listens for phrasing from the attorney that signals that the attorney is making an argument at the behest of a client – so, she suggests phrasing like, “My client wants the Court to know…” Of course, as a caution, keep in mind that every judge knows what the phrase, “With all due respect, your Honor…” really means.
Commissioner David Haet (Solano County Superior Court) class="anchor" named as 2008’s Judicial Officer of the Year, Commissioner Haet was the first ever Commissioner to take the bench in Solano County and has served in his position for nearly three decades. Before leading the charge for Commissioners in Solano County, Commissioner Haet led the charge for graduates from UC Santa Cruz as a graduate of the first class. He is widely recognized as one of California's most knowledgeable and experienced family law bench officers, and in addition to his judicial functions, he has served on the Judicial Council, the Family and Juvenile Advisory Commission, the Task Force for Judicial Needs, and the California Judicial Education and Research Commission. He has chaired the California Court Commissioners Association, and currently chairs the Family Law Commission for the California Judges Association.
Any SOLANO COUNTY practitioners who need help understanding the Judicial Council form would be wise to ask Commissioner Haet for an explanation, given his material role on the Judicial Council.
Every Judge needs the facts and the evidence to support your argument before he can rule in your favor. It is your job as an attorney to set the foundation of the case, to develop a blueprint for your position, and to give the Judge the relevant evidence (i.e., the tools). For example, if you’re asking for spousal support, make sure you have provided the Judge with the Income & Expense Declaration and supporting pay stub information.
Just as you design your case, you also set the tone of litigation through your demeanor, process, and advocacy. Commissioner Haet cautions you to remain reasonable with your arguments and to remain respectful while arguing. It is never a good idea to personally attack the opposition. There is no need to be brash, obnoxious or loud; and if a ruling is not in your favor, remain composed and polite. A ruling against you is not a personal affront to you or to your client. It simply means the opposing party had a better case. There is a need, however, for brevity: The Judge is listening and he is paying attention, so simply stating your argument, facts or evidence once is enough.
Judge Mark Juhas (Superior Court Los Angeles County) is among good company on this list. In 2011 he was class="anchor" named Judicial Officer of the Year. He has been on the Family Law Bench in excess of eight years. Judge Juhas has been dedicated to the improvement of family law throughout the State of California for several years. He has chaired the Access and Fairness Committee and is a member of the Elkins Family Law Implementation Task Force after serving on the Elkins Family Law Task Force for the Judicial Council from 2008 to 2010. He is also on the Task Force on Self Represented Litigants to the Judicial Council. He participates regularly in continuing education programs in order to assist the family law bar in their continuing goal to remain on the cutting edge of the ever evolving complexities of family law. These are only a few examples of his dedication to improving the practice of Family Law throughout the State.
Those of you in Los Angeles who would like some useful tips on working with self-represented litigants should take some time to speak with Judge Juhas (of course, if your query is about a particular litigant or involves a particular case, then seek the guidance of a mentor rather than the Judge.)
Opposing the self-represented litigant presents a series of challenges that you will not otherwise encounter when facing an opposing counsel (in fact, you may find that your opposing counsel will help you understand certain elements of the law or certain evidentiary issues, if you simply ask for guidance). Pro per litigants do not know the law as well as you do, they often do not have a true understanding of weight of a particular fact and the internal process of the Court (i.e. the filing of a document with the Court clerk) is often mysterious. You may find yourself frustrated when your bench officer takes time during the case to explain certain rules of evidence, to make objections seemingly on behalf of the pro per, or aides him or her with filing. You may even be tempted to cite to the Rules of Court that indicate a self-represented litigant is held to the same standard as an attorney – don’t. Above all else, the Judicial Cannon of Ethics requires judge’s to reach their decisions on the merits of the case; so, if the Judge asks the pro per questions or conducts himself as though he seems to be assisting the pro per it is only because the Judge is seeking out more information in order to reach his ultimate decision.
Judge James Mize (Sacramento County Superior Court) began his career as a young attorney sitting as Vice Chair of the California Young Lawyers Association, President of the Sacramento County Young Lawyer Division, the Sacramento Bar Association and the California Judges Association. Recently, he developed the One Day Divorce, which offers legal assistance to self-represented litigants. Through his program volunteer attorneys and law students assist eligible parties in finalizing an agreement and preparing all of the necessary forms to obtain the final Judgment. (HELPFUL HINT: Offering to provide pro bono assistance to eligible litigants through your local bar association is great ways to jump start your experience and knowledge base). He carried his passion for serving the Bar and the consumer (your clients) through to his position on the bench.
Monitor Your Reputation and Maintain Your Ethics
Judge Mize stresses the importance of maintaining your own ethical standard, and the standards under which you are required to practice. Above all else, you are vested with ethics the moment you are admitted to the practice of law. It is yours to keep and yours to lose, so you must decide before the onset of your very first case: What kind of attorney do I want to be? According to Judge Mize, you have two options in answering this question: You can be ethical, or not. Be cautious: Unethical conduct will likely lead you to a win, but it will also catch up with you in your reputation. Rather than seek to tally your wins, focus first on representing your clients well and honorably, discharge your duty of candor to the Court, to the opposition and to your client. You will build your reputation on how you handle your cases and not whether you win with deleterious tactics.
Keep Your Wits About You
Oftentimes, we vest ourselves in our client’s story, or her history. You may find yourself identifying with your client, or taking on her cause as though it were your own. When this happens, take a moment to consider that you are an advocate for the client, but you are not your client. Failing to separate your role as advocate from your client’s position results in a loss of objectivity and analytical thinking required to be an effective attorney. You must determine what level of passion is required to convince the judge or the jury to rule in your favor, but be cautious to avoid wording such as “we” and rely instead on “my client.”
In addition to separating yourself from your clients, you must also take time to separate yourself from the practice of law. Initially, the practice is new and exciting and it is easy to become enveloped in the field. But, try to maintain some semblance of balance: Choose a hobby, sport, or passion that you can pursue outside of the practice of law. Being a good attorney requires grounding in the world and balance.
Judge Bradley Nelson (Judge Presiding, Solano County Superior Court). Appointed to the bench in 2008, Judge Nelson has been serving Solano County for six years. Effective January 2014, Judge Nelson was class="anchor" named the Presiding Judge of Solano County Superior Court and is set to serve a two year term. Judge Nelson has practical experience in both civil and criminal law. Prior to taking his seat at the bench, Judge Nelson worked most of his nearly 30 year career in private practice taking cases of criminal defense and civil litigation, including employment discrimination, sexual harassment and business disputes.
Judge Nelson majored in Economics at UC Santa Cruz, which requires a particular set of skills. Recently, those skills proved useful when rendering a ruling in a criminal case. How so? He directed counsel to determine whether a weapon would fit into a hiding place by relying on the Pythagorean Theorem, rather than conducting a site investigation of the scene of the crime. Even the Judge pulls from personal knowledge and experience to analyze facts – a useful tool to keep in mind as you traverse your first case.
Attention! Trial Lawyers
Trial attorneys set the tone of their case from the first pleading to their last argument: You must proof-read your documents before you submit them to the judge. Do the class="anchor" names in the body match the class="anchor" names in the caption? Have you properly cited cases? Are your pronouns proper? It is easy to make simple (but wholly embarrassing mistakes) in this cut-and-paste world. Likely, you will rely on documents drafted by a more experienced attorney in your firm. And, it is perfectly acceptable to use the template of another lawyer, but be mindful in the drafting.
When in court you must pay attention to the judge, the arguments of opposing counsel, and the words your client is whispering in your ear.
You Must Be a Good Listener to Be an Effective Attorney.
Finally, you must master the rules of evidence: Don’t just commit them to memory, practice them. For example, have a working knowledge of the hearsay rule and the exceptions thereto. Know how to truly utilize a prior statement and practice with prior oral statements, prior written statements and prior testimony. A trial attorney is the maestro of the courtroom, and the better you are at controlling your evidence the more likely it is that you will establish yourself as excellent attorney.
Judge Cynda Unger (Solano County Superior Court) holds the honor of being class="anchor" named Judicial Officer of the Year for 2006. Prior to her position on the bench, she worked in private practice for 13 years, and was certified as a Family Law Specialist by the California State Bar Board of Legal Specialization in 1991. From there, Judge Unger moved on to a stint of almost four years as a Deputy District Attorney for Solano County in the Family Support Division. During her career, she learned a great deal doing legislative work with the State Bar standing committee, and was ultimately appointed to the Family Law Executive Committee (FLEXCOM), where she served until her election as a judge. She also graded the Family Law specialization exam for several years.
Judge Unger understands hard work, perseverance and tenacity. After a thorough run on the campaign trail, she won a three-way contested election to take her seat at the bench (fun fact: during her campaign, Judge Unger inspired a rock band of the same class="anchor" name).
Knowledge Is Power
The key to advocacy is to KNOW YOUR CASE – including all the facts, issues and evidence needed to support your argument. When faced with questions from the bench, do not rely on your client to supply the answers. It is your job to represent your client, so if you need a moment to discuss with your client the Judge’s inquiry into the facts, then request the Court pass the matter to the end of the calendar and excuse yourself. It is better to pass the matter and get clarification from your client than it is to hazard a guess – frankly, you owe the court a Duty of Candor, and you must be forthright in your presentation of your case.
You empower your clients when you educate them on the risks, weaknesses, and pitfalls of their case. No case is perfect, and no fact pattern is ideal. You must be mindful to keep your client’s expectations reasonable in light of your role as their advocate, the outcome of their case, and the options they have during litigation.
Know the Rules of Evidence
Know Your Objections
Mind Your Reputation
Find a Mentor and Ask for Help
In this edition, Judge Rebecca Riley of the Ventura County Superior Court provides her tips to new lawyers:
What is one piece of advice that you would like to give to young lawyers?
I encourage all new attorneys to get as much courtroom experience as they can. Often young attorneys are nervous and intimidated making court appearances. The only way to decide what kind of law to practice is to try it. Young lawyers often learn whether they love or hate a particular field of law, or litigation versus transaction, after only a few court appearances. This is crucial in shaping a young lawyer’s career.
Do you have any writing tips for young lawyers?
I advise new attorneys to work on polishing their writing skills. I discourage thick, wordy pleadings when the same argument could be written succinctly and in one page. Try to get the most important points out in the first few pages. Also, pleadings should be organized so it is easy for the Judge to follow along. This includes having the arguments flow together, having the topics set out clearly with headings, and having all arguments following the appropriate heading.
What is a common mistake you see made by young lawyers?
A common mistake I see is that attorneys forget to Shepardize a case and either cite to an unpublished case or a case that is not on point. Be sure to Shepardize every case that you cite in your memos and briefs to make sure the case actually holds for what you think it does. It is important not to just pull certain quotes out without reading the entire case and holding.
What advice do you have for new attorneys about being a better oral advocate?
Be courteous and polite to opposing counsel and witnesses, particularly in front of a jury. After a jury trial, I give the jury a comment sheet and often times I get back a poor comment on an attorney who rolled his eyes, made hand gestures or was being rude.
I also think lawyers should not forget their audience whether it is a judge or a jury. Think about what your audience needs to hear to make the right decision. Make it easy for the audience to follow your arguments. Learn to argue in a concise and organized manner so that your audience can easily follow you.
Do you have any tips for a new attorney that may think of becoming a Judge?
Always be truthful. If you ever get caught in a misrepresentation, your credibility will go down fast. Be sure to always make a good impression. It is easy to make a bad impression but it is very hard to correct. When you start the process of becoming a judge, your colleagues and opposing counsel will remember everything. You need to be a fair and honest person and have good work ethics. Find a judge that you respect and emulate him or her.
In this edition, Justice Douglas P. Miller of the 4th District Court of Appeal, Division 2, provides tips to new lawyers:
What is one piece of advice that you give to young lawyers?
The easy answer, of course, is to be prepared. However, there is really much more to it. Being fully prepared is paramount, but I always tell young lawyers that in addition to doing your homework, “being prepared,” also includes becoming experienced. With “experience,” you gain knowledge, wisdom, insight and confidence. Take every opportunity you can to be “in” a courtroom -- appearing before a judge, arguing motions, observing other lawyers’ appearances -- develop a comfort level in the courtroom setting.
What is a common mistake you see made by young lawyers?
The most common mistake I have observed, whether a young or “seasoned” lawyer, is that preparation for a deposition or a court hearing becomes a script. So my advice is: There is nothing wrong with having well-prepared notes or outlines to rely upon, but do not allow them to be a substitute for listening and responding to what a judge asks you, or a witness may say, that does not fit within your script.
Is there any piece of wisdom you have learned that you wish you had known as a young lawyer?
Never forget that you represent a client. It is not about you.
Do you have any writing tips for young lawyers?
Be brief. Make your point and support it with appropriate authorities. Choose your issues carefully. Be Brief!
What is one piece of advice you would give to a young lawyer about being a better oral advocate?
I encourage appellate advocates to have a conservation with the justices. We generally do not want to be read to or lectured. We want to have a discussion that leads to a better understanding of your position and insight on the issues. Lastly, to be in the moment. Roll with the questions and answer the justice’s inquiry. Then, be aware of where you left off and pick up where you left off in your argument/conversation.
Many of us grew up watching reruns of Perry Mason and The Practice in which the protagonist attorneys use a take-no-prisoners approach with their opponents and wrap up a case in 60 minutes, including the commercials. However, as young lawyers, we quickly realize that day-to-day litigating is not so sensational. The reality is that most cases last months, sometimes years, and throughout that time, attorneys must work with opposing counsel to accomplish the necessary steps of a case. Litigating a case as a war may ultimately cause opposing counsel to back down but also may backfire, and it will almost certainly cause stress and chaos. It behooves opposing attorneys to work cooperatively from the outset. Opposing counsel are not the enemy. Learning early in practice that it is acceptable to compromise and that being reasonable is not the equivalent to losing will benefit your blood pressure and your clients.
One way to start dealings with opposing counsel is to call to introduce yourself personally. An early initial conversation provides an opportunity to set the tone of the case and discuss preliminary matters. For example, opposing counsel may agree to voluntarily dismiss a particular defendant rather than oblige you to file an expensive demurrer. Discussion, rather than motion, saves significant time and money. Sometimes opposing counsel may agree to your request in exchange for something that benefits his or her client but has little or no impact on yours, resulting in a win-win situation. For example, opposing counsel may agree to dismiss your client’s parent company, which is not a proper defendant, in exchange for your acceptance of service on behalf of your client. You save the opposing party money by accepting service, and your client is relieved of the expense of moving to dismiss the parent company or defending it at trial. The initial conversation is also an opportunity to sense how opposing counsel evaluates the case and may even result in an early settlement.
Similarly, once the judge schedules the case management conference, initiate scheduling the meet-and-confer discussion. Consider sending an e-mail message or making a call to mention a checklist of topics that the local rules or judge’s order require you to cover. Opposing counsel will often appreciate that you have cut down on the thinking that he or she must do, and it will help you to better understand what to expect in the case regarding future discovery and motions. A confirming letter after the conversation, including a request that opposing counsel reply immediately with any disagreement, is an important record to keep opposing counsel accountable for commitments he or she made. Taking this initiative will also encourage you to be better prepared in planning your case.
Planning is particularly crucial at the discovery stage. Screaming matches and childish class="anchor" name-calling at depositions and nasty letters make for entertaining stories but waste client resources. Attorneys commonly, but often unnecessarily, battle about the timing and scope of discovery. Although getting what you want is an ego boost, it is important to consider the big picture.
In a deposition, it is typically not worth arguing about an objection. If you are taking the deposition, allow opposing counsel to interject the objection and, unless he or she is instructing the witness not to answer or is improperly coaching the witness, move on to the next question. If opposing counsel is instructing the witness not to answer, confirm with the witness that he or she is following counsel’s instruction, ask the court reporter to mark the question, and move on. It may work to ask the question a different way or to return to it near the end of the deposition to test if the attorney will maintain the instruction. Losing your temper makes it less likely that you will rationally think around the obstacle. Remember that it is your deposition, and it is in your client’s best interest to maintain control and get the best testimony. Typically, a court will recognize only egregious behavior by opposing counsel as warranting suspension of a deposition. Thus, if you react too aggressively, you may lose your opportunity to depose that witness.
With written discovery, it is often beneficial to grant opposing counsel’s request for an extension. Consider that you may later need an extension on your client’s responses or another compromise. Once you receive the opposing party’s responses, draft a respectful, concise letter addressing any deficiencies in the responses, considering it may later be used as an exhibit to a motion, and offer to schedule a call to discuss. Often a thorough meet-and-confer discussion aids in efficient resolution of discovery issues. Letter wars take more time and expense and are not nearly as productive. Many courts require a discussion before a discovery motion is filed. Thus, it makes sense to initiate it at the outset in the event a motion is necessary.
When planning a mediation, consider using a mediator proposed by opposing counsel. Opposing counsel will be more likely to trust a mediator with whom he or she is familiar, potentially leading to a favorable resolution for your client. Being reasonable early in a case may allow you to gain opposing counsel’s trust and ultimately get what you want.
Christiane A. Roussell
Hunton & Williams LLP
I think everyone can agree that we have become an electronic society. Email has quickly turned into the preferred method of communication between friends and colleagues. The job application process has sort of lagged behind the digital revolution somewhat over the years, but I think it's now safe to say that most employers prefer to receive candidates' materials through email.
The problem with this new shift is that some applicants seem to believe the required formalities that exist in paper applications somehow disappear when they are applying by email. This way of thinking is fatal to your job prospects. Most of the time, you will never hear from the employer and unfortunately may never realize that the reason for this was some crucial email mistake. Keep in mind that since your email is the first thing a potential employer sees, and if there are problems with it your documents may not even get read.
With all of this said, here are a few tips for improved email communication. Although some of them may seem obvious, you would be surprised by the amount of people who routinely make these costly errors.
In the subject line of your email, be sure to indicate the proper class="anchor" name of the position to which you are applying. For example, "Application for Post-Bar Law Clerk Position" and not "Law Clerk."
As with a proper paper letter, make sure you open your e-mail with a salutation. Do not simply start your email with "Attached please find....."
Starting with “Hi” or worse yet “Hey” is also completely inappropriate. Begin with “Dear” and end the greeting line with a colon.
Never use the contact person's first class="anchor" name. Unless directed otherwise, use Ms. or Mr. followed by their last class="anchor" name. Do not address a female contact as "Mrs."
However, if the person has a title, use it and their last class="anchor" name. For example, if the contact is a professor, military officer, senator, judge, or has another official title, use that title in your greeting line and be sure to spell it out. For example, "Dear Captain Gomez:" or “Dear Professor Taylor:” (not Prof.).
Do not include a joke or in any way display anything other than a conservative, formal approach.
If you are asked to include multiple documents such as a cover letter, resume and references, combine all of the documents into one attachment in lieu of multiple attachments. Do not make it more difficult for the employer.
Always convert your word document into a PDF to avoid any potential tampering with your materials, and to preserve your formatting.
If you've ever used the track changes feature for your materials, be sure that any comments or edits are not lingering. Your best bet is to accept or reject all the changes, turn off the track changes feature, and then save the document.
Finally, your closing should be just like a formal letter and not include every possible affiliation you have or your favorite inspirational quote. Simply provide your full class="anchor" name and best contact information.
Follow these helpful tips and you will significantly increase your chances of receiving a call for an interview. In a very tight job market, where there are many qualified and over-qualified candidates, one simple mistake can be the reason that you remain unemployed.
Beverly K. Bracker
Director of Career Services
Thomas Jefferson School of Law
Here are some tips for young lawyers from the Honorable Judge David M. Rubin. Judge Rubin is a California Superior Court Judge in San Diego and is the president-elect of the California Judges Association's. Judge Rubin will be sworn into a one-year term as the association's president on September 18, 2011.
1. What is one piece of advice that you give to young lawyers ?
Try to have fun in your new profession while keeping balance in your life. You will find that a legal career is both challenging and exciting. Very quickly you will become absorbed in assisting your clients, working on cases and doing legal research. Make sure you maintain your hobbies, friendships and family time.
2. What is a common mistake you see made by young lawyers ?
Young attorneys can sometimes think they will never again see or work with the lawyer against whom they are litigating today. Wrong. They will see opposing counsel again, and may even be on the same side with her or him. So remain civil with each other, no matter how hard fought the battle.
3. Is there any piece of wisdom you have learned that you wish you had known as a young lawyer ?
Get involved with your community outside of work – give back where ever and when ever you can – e.g.: pro bono legal services, volunteer at a school, run for the bar board.
4. Do you have any writing tips for young lawyers?
1. Write simple sentences. Even the smartest judges like easily grasped material. 2. Proof read – and don't depend on SpellCheck. 3. Have someone else read your brief before you file it.
5. What is one piece of advice you would give to a young lawyer about being a better oral advocate ?
Be prepared and when you argue before the court, try not to use notes (or at least, glance at them sparingly.) During arguments it is distracting when attorneys look down at written materials instead of looking at the court. It also undermines a lawyer's persuasiveness.
This material is reproduced from Julie Brook's May 3, 2010 blog entry, 11 Steps to Preparing Your Trial Notebook, CEB Blog, copyright 2010 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar - California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).
One of the most important tasks when preparing a case for trial is to prepare a trial notebook with everything you'll need or want during trial. Don't create your trial notebook to impress a client, an adversary, or another lawyer in your office (although it may do so!); your notebook should reflect your personal style and the particular requirements of the case.
The following should be included in the preparation of your trial notebook:
1. Assemble evidence and create a list to keep track of exhibits. Give numbers (if you represent the plaintiff) and letters (if you represent the defendant) to the evidence you will offer as exhibits or use as demonstrative evidence at trial. Add a description, the witness who will introduce it, and leave columns to check off whether the evidence is either admitted or offered but not admitted.
2. Complete your trial outline. List every issue you need to prove or disprove at trial. Next to each issue write:
3. Make a list of witnesses in order of anticipated appearance. Include a column to check off whether a subpoena has issued and has been served.
4. Prepare a trial brief (if the judge accepts trial briefs) showing your summary of the law and the facts of the case.
5. Prepare a separate file for each witness (plaintiff and defense) listing the facts to which you want them to testify (either on direct or cross-examination).
6. Include any pretrial orders that may regulate the trial's course.
7. Prepare sample questions for jury voir dire.
8. Prepare witness lists to present to the judge for use during voir dire. In civil cases, be sure you also prepare a brief factual statement of the case for the judge to use during voir dire.
9. Write an outline of your opening statement and closing argument(s).
10. Prepare sample verdict forms.
11. Arrange to have all charts and other demonstrative evidence prepared.
For a complete list of tasks to do when preparing the trial notebook, see Effective Introduction of Evidence in California (2d ed Cal CEB 2000) . Also, check out our program Everything You Need To Know To Be Ready For Trial , available On Demand.