Lawyer. Interesting Legal Practices. Santa Barbara. Official Publication of the Santa Barbara County Bar Association April 2010 Issue 451

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association April 2010 Issue 451 Interesting Legal Practices

2 FINANCIAL EXPERTISE IN YOUR CORNER. These days, help from a one-on-one relationship with an advocate who knows you and knows where you want to go is more important than ever. A Merrill Lynch Financial Advisor, now with access to the resources of Bank of America, can help you plan, imagine, diversify, rebalance and believe. The Micheel - Gamberdella Group Bruce Micheel, CFP Marc Gamberdella John Spruill, CFP (805) Merrill Lynch Santa Barbara, CA Investing involves risk. Diversification and rebalancing do not assure a profit or protect against loss in declining markets. Merrill Lynch Wealth Management makes available products and services offered by Merrill Lynch, Pierce, Fenner & Smith Incorporated (MLPF&S) and other subsidiaries of Bank of America Corporation. MLPF&S is a registered broker-dealer, member SIPC and a wholly owned subsidiary of Bank of America Corporation. Investment products: Are Not FDIC Insured Are Not Bank Guaranteed May Lose Value 2010 Bank of America Corporation. All rights reserved. 2 Santa Barbara Lawyer

3 TERENCE J. MIX, Esq. Mediation and Arbitration Services Former President, Consumer Attorneys Association of Los Angeles Former Board Member, Consumer Attorneys of California (12 years) One of the Founders, Attorneys Special Arbitration Plan (Los Angeles) Former Member, State Bar Advisory Committee on Mandatory Arbitration Rules Former Member, Los Angeles Superior Court Arbitration Administrative Committee Former Superior Court Arbitrator (Los Angeles) Former Superior Court Settlement Officer (Los Angeles) Over 40 years of civil litigation experience, with special expertise in personal injury, drug product liability, medical malpractice, legal and professional liability, insurance bad faith, commercial and entertainment law litigation. (805) Phone P.O. Box (805) Fax Santa Barbara, CA What if... Suzanne McNeely Founder... your client is having difficulty handling his personal and financial affairs. Who can you trust to help him? > The Senior Planning Services Solution A care manager will assess their needs and challenges. We ll share our concerns and make recommendations, help locate reputable services, provide ongoing support and monitor any changes. Let s talk STATE STREET, SANTA BARBARA, CA > YEARS OF EXCELLENCE SPS_SBLawyer.indd 1 April /8/09 5:51:56 PM

4 Lynn E. Goebel President Attorney At Law 15 West Carrillo Street, Suite 250 Santa Barbara, CA T: F: Mack Staton President Elect Bench and Bar Conference (2010) Events Committee Mullen & Henzell LLP 112 E. Victoria Street Santa Barbara, CA, T: F: Catherine Swysen Secretary Sanger & Swysen 233 E. Carrillo Street, Suite C Santa Barbara, CA T: F: Donna Lewis Chief Financial Officer Attorney at Law 789 North Ontare Road Santa Barbara, CA T: Melissa Fassett Past President Special Projects Price, Postel & Parma LLP 200 E. Carrillo Street, Suite 400 Santa Barbara, CA T: F: Santa Barbara County Bar Association Officers and Directors Gabriela Ferreira SBWL Representative Attorney at Law 427 East Carrillo Street, 1st Fl. Santa Barbara, CA T: F: Winnie Cai Santa Barbara Lawyer Editor-in-Chief Attorney at Law 7325 Elmhurst Place Goleta, CA T: Naomi Dewey MCLE Chair Hardin & Coffin, LLP 1531 Chapala Street, Suite 1 Santa Barbara, CA T: F: Luis Esparza Events Committee Esparza Law Group, PC 1129 State Street, Suite 13 Santa Barbara, CA T: F: Herb Fox Liaison/Bench and Bar Law Office of Herb Fox 15 West Carrillo Street, Suite 211, SB T: , F: Saji Gunawardane Special Projects Law In Motion, PC 924 Anacapa Street, Suite 2-J Santa Barbara, CA T: F: Mission Statement Santa Barbara County Bar Association The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Jennifer Kruse Hanrahan Liaison, Legal/Community Relations Attorney at Law 285 Chateaux Elise, Suite B Santa Barbara, CA T: F: Cristi Michelon Events Committee Eaton, Jones & Michelon 1032 Santa Barbara Street Santa Barbara, CA T: F: John J. Thyne III Law Day/Law Week Bench and Bar The Law Offices of John Thyne 2000 State Street Santa Barbara, CA T: F: William Duval, Jr. Law Day/Law Week Attorney at Law 1114 State Street, Suite 240 Santa Barbara, CA T: F: Lida Sideris Executive Director SBCBA Office 15 W. Carrillo Street, Suite 106 Santa Barbara, CA T: F: Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2010 Santa Barbara County Bar Association EDITOR-IN-CHIEF Winnie Cai ASSISTANT EDITORS John Derrick Pauline Maxwell SENIOR EDITOR Saji Gunawardane SENIOR ADVISOR Lol Sorensen MOTIONS EDITOR Justin Greene VERDICTS & DECISIONS EDITOR Lindsay G. Shinn COVER ART Saji Gunawardane EDITORIAL SUPPORT Michael Lyons Adam Carralejo Jill Jackman Sadler CONTRIBUTING WRITERS Herb Fox Robert Sanger DESIGN and PRODUCTION Baushke Graphic Arts Wilson Printing Submit all EDITORIAL matter to Winnie Cai at with submission in the subject line. Submit all advertising to : SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA phone , fax Classifieds can be ed to: 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association April 2010 Issue 451 Articles 6 Elder and Disability Law: A Practice with Heart, By Dallas Leigh Atkins 8 A Class Action Niche, By Robert Rusty Brace 11 Proactive Practice: Preserving Client Value and Legal Profession, By Jim Scafide 13 I Learned About Lawyering From That, By The Joker 14 Who Is This Person? By Lida Sideris 18 Supreme Court Grants Review of Local Class Action Decision, By Herb Fox 22 UCSB Undergraduate Law Review to Publish Ninth Volume, By Andrea Hoffman and Sara Fay-Katz 23 The Story of Four States That Reduced Their Prison Population, By Robert Sanger We ve Moved! Come visit your SBCBA team in our new downtown office! SBCBA Office 15 W. Carrillo Street, Suite 106 Santa Barbara, CA T: F: Report of Affiliate and Legal Community Organizations, By Jennifer K. Hanrahan 28 Keep It Legal, Keep It Local, By Tara A. Sanford and Maria G. Rabatin Sections 27 Verdicts & Decisions 34 Motions 35 Section Notices 37 Classifieds The Santa Barbara County Bar Association invites you to attend a memorial for Judge McLafferty at the Courthouse on April 29, 2010 at 5:30 p.m. 38 Calendar Mock Trial 2010 Santa Ynez High School prosecution team (left) prepares to take on the eventual mock trial champion, Dos Pueblos High School defense team. For more coverage, see the centerspread. Photo: M. Lyons April

6 Interesting Legal Practices Elder and Disability Law: A Practice with Heart By Dallas Leigh Atkins I did not find my untraditional calling within the mainstream profession of law without two decades of exploration and elimination after my admission to the bar. I worked at Legal Aid and my own private adoption practice, as well as various non-legal and quasi-legal jobs in California and Canada. Just as elder law emerged as a separate area of practice in the late 1980 s, I was absorbed at the other end of the life span in private adoption law. I developed my adoption practice while I was a graduate student in the UCSB counseling psychology program and a marriage and family therapist intern. What I loved about my practice was what I came to love about working with elders and persons with disabilities in 1999: the intersection of interpersonal communication, family dynamics, and legal problem-solving. Adoption law was fraught with the human feelings of loss, insecurity, shame, guilt, vulnerability, and control. The work demanded not only my legal experience but also my growing skills as a communicator and a therapist. This was the closest that I had come to a good fit in my development as an attorney, and I stayed in the field for four years. After working in British Columbia for six years, the practice and business of adoption law had changed in California. I found myself reluctant to re-enter the field. So I sat down with the Yellow Pages Attorney Section to look for new ideas. The heading elder law grabbed my attention because I had no idea what elder law was, but I remembered how I enjoyed working with the tribal elders on an Indian reservation in my first job as a lawyer. The combination of Medi-Cal, special needs trusts, and estate planning interested me, and I had previous exposure to public benefits and disability law in my legal aid work. I immersed myself first in Medi-Cal law, initially working for another elder law attorney and taking every available seminar through California Advocates for Nursing Home Reform (CANHR) and the National Academy of Elder Law Attorneys (NAELA). After my first two days at CANHR s elder law training, my head was swimming, but I sensed that I had an affinity for the field. I studied intensively for the next year, and I developed my professional relationships within CANHR and NAELA. I found excellent mentors who were willing to help me with problemsolving, questions, tips from their decade-long practices, consultations, and even their own legal documents. The elder and disability lawyers I came to know through CANHR Dallas Leigh Atkins and NAELA gatherings were bright, accomplished, professionally generous, genuine, and warm. The conference halls were full of friendly attorneys giving hugs and sharing their wisdom during and after the sessions. This unselfish, non-competitive inclusiveness was the first clue that elder law practice was untraditional. The mentoring relationships continued long distance and long-term after my return home. Helping other attorneys is the norm in elder law. Most elder and disability law attorneys embrace the social work aspect of law. Many of us started in Legal Aid, and some of us have a degree or a previous career in a health care profession (nursing, social work, psychotherapy, or gerontology, as examples). We place a high value on helping vulnerable people solve concrete problems at a difficult time in their lives. There is a balance of crisis work and planning work. We find personal satisfaction in the relief that we can offer our elderly and disabled clients and their families facing needs for care in the community, in the home, in assisted living, or in nursing homes. We like to help clients with both legal solutions and community resources. Having my two professional backgrounds of law and psychology, I resonate with elder law s holistic and integrative approach. The focus is not a myopic one honing in on isolated legal problems, but rather a broad approach to the whole person in the greater context of socio-economic and demographic challenges that all of us will face if we live long enough, whether or not we have money. Aging is inevitable, and physical disability and mental incapacity become increasingly likely the longer we age. Fifty percent of all persons over the age of eighty-five (85) have Alzheimer s disease. Decades ago, elders died at home after a short acute illness, usually pneumonia, the old man s friend. With improved medical technology, people now live much longer and die in nursing homes and hospitals 6 Santa Barbara Lawyer

7 Interesting Legal Practices after struggling for long periods with chronic illness. We are living longer, but our brains cells are not. The most holistic, integrative area of elder law now is life care planning, sometimes known as elder care planning or the elder-centered law practice. The top priority of this cutting edge of elder law is to preserve the elder s quality of life and autonomy, not to preserve assets for the sake of the heirs. Rather than saving money by using no caregivers at all or non-professional caregivers in the home and then having to move an elder into a nursing home because of a rapid decline, the approach is to spend whatever is necessary from private and public funding on professional care as early as possible to avoid compromising the elder s present level of functioning. Aging in place is the goal. The idea is to avoid or delay institutionalization because once an elder goes to a nursing home, the decline accelerates; and quality of life and autonomy are forever lost. Getting good professional care earlier on slows down the decline of the elder and enhances and preserves quality of life. The life care planning attorney proceeds with proposing a comprehensive plan only after obtaining a thorough understanding of the disabled or aging person s place on the continuum of care. When an elder is no longer a healthy senior in independent living, the continuum of care starts with in-home care, followed by assisted living, and lastly a skilled nursing facility. The current health status and living situation provide the context for evaluating the available private and public financial sources of funding and the community resources to meet those care needs or to be prepared to meet anticipated care needs. An important goal in life care planning is to assist families to find and pay for quality care for elders and disabled persons in a variety of settings, preparing for each new stage of the continuum of care. There are different funding sources for the different stages of care. Life care planning most wholeheartedly embraces the social work aspects of the practice by adding an elder care coordinator (or client services coordinator) to the law firm. This professional commonly has a background in nursing, social work, or elder care. These coordinators are not hands-on caregivers or geriatric care managers, but rather community resource specialists in the area of elder care. They help family members find the appropriate care in the appropriate environment (in the home or in senior facilities), and they refer the family to matching community resources. They coach family members to become effective patient advocates for their loved ones. Lastly, they intervene with the care providers if there is a problem with getting the elder s needs met. A challenge in life care planning can be getting some family members to shift their priorities from asset preservation to quality of life and autonomy. Geriatric research shows that if an elder gets an appropriate number of hours of quality professional care in the home earlier in their process of decline, then it is more likely that the declining person can live healthier in the home for longer and delay or avoid institutionalization. I work once again in the thick of the human feelings of loss, insecurity, shame, guilt, vulnerability, and control, but usually all can agree that the elder s quality of life is paramount. What I love most about elder and disability law is that this practice affords me the opportunity to use all parts of myself my heart, my mind, my legal experience, and my counseling background to make a difference for vulnerable individuals and their families. I have been a witness to profound resolutions in an individual s life or in family dynamics as a by-product of my legal work. I have been honored to hear and to touch the most intimate feelings of some of my disabled or elderly clients and their family members in interaction with me or with one another. I have been blessed with some interpersonal exchanges that I would call a soul to soul encounter with a nursing home resident or spouse or at the bedside of a dying client. I cannot think of any other area of law where I could say that. I am deeply grateful for finding elder and disability law and my own way of practicing it. It was well worth the wait to find a career with heart. Dallas Atkins is the principal attorney at the Law Offices of Dallas Leigh Atkins in Santa Barbara. For more information on elder and disability law, you can contact Ms. Atkins at GET HELP COMPLYING WITH NEW ELECTRONIC DISCOVERY LAWS Contract Paralegals can help you comply with CCP and 2031 et seq. Discovery and Production of Electronically Stored Information Preservation Collection Review Production Call today for advice on electronic discovery vendors, a competent and fast review team and other answers to your questions about electronic discovery. JACKMAN SADLER INCORPORATED Paralegal Services (805) April

8 Interesting Legal Practices A Class Action Niche By Ro b e r t ( Ru s t y ) Br a c e I am an attorney with the firm of Hollister & Brace. I began my career by joining my father s law firm in 1985 after graduating from the University of Colorado. Hollister & Brace has been in existence since 1966 and has been at the same location across from the Santa Barbara Courthouse at 1126 Santa Barbara Street since When I started as an associate, I worked as a plaintiff s contingency fee lawyer on commercial disputes and a few personal injury cases. I have continued my legal work as a contingency fee lawyer and have never worked by the hour. Most of the other lawyers at H&B deal with Santa Barbara-based clients. My practice has evolved to cover large, multi-party class actions in federal courts located throughout the United States. While the majority of my cases are class actions, I also represent federal court receivers of failed enterprises who seek to recover monies to be paid to a distinct group of creditors. Most of my cases ultimately lead to working with insurance coverage issues. Over the past three years, I have been involved solely in recovering money lost from failed 1031 Exchange Intermediaries, called Qualified Intermediaries ( QIs ). Prior to this, I mainly dealt with ERISA litigation arising out of failed health insurance plans, or commercial litigation arising out of fraudulent insurance issued by off-shore insurers. The four 1031 QI cases I have been involved with are: (1) Southwest Exchange ( SWX ), a Ponzi scheme operated by Donald McGhan from Santa Barbara out of Las Vegas, who looted approximately $100,000,000 in 1031 Exchange Funds; (2) the 1031 Tax Group Ponzi scheme operated by Edward Okunin Virginia, who looted over $150,000,000 in 1031 Exchange Funds; (3) LandAmerica Exchange Services, Inc., which lost approximately $150,000,000 by investing 1031 Exchange Funds in Auction Rate Securities; and (4) Vesta Exchange Services, operated by John Terzakis, who looted approximately $25,000,000 in Exchange Funds. Okun has been tried, convicted and given a 100-year sentence for operating a 1031 QI Ponzi Scheme. McGhan has pled guilty to the same offense and received a 10- year sentence. Terzakis was recently arrested. On the next page are photos of a jet and yacht which were purchased among many other toys by McGhan and Okun with embezzled 1031 Exchange Funds. The 1031 QI cases were perfect Ponzi schemes during the rise of the real estate bubble. A QI allows Robert Brace property owners to avoid paying capital gains taxes on highly appreciated property by holding the sales proceeds from the client s relinquished property for a period up to 180 days while the client (the Exchanger ) purchases replacement property and then enters into a contract with the QI to purchase this new property. The QI industry has no industry-specific regulatory oversight which made the QIs vulnerable to abuse. As long as new money coming into the QI was equal to or greater than the flow of money going out to close older Exchanges, it was easy to loot a large percentage of the money on deposit without the knowledge of the Exchangers. The converted Exchange Funds could be used for speculative investment or the purchase of luxury items without detection, so long as real estate values continued to rise, leaving a sufficient volume of incoming funds to timely close escrows on each client s purchase of replacement property. However, the opposite was also true. The decline in the market and volume of new incoming funds caused a defacto audit at the QIs and led to their eventual collapse. Most of my cases involve white-collar criminals who ultimately go to jail. My job has been to pursue civil litigation against professionals who knowingly or unknowingly assist the Ponzi scheme and, at the same time, concentrate on perfecting or at least not destroying, possible insurance coverage. The majority of my cases come before the Multi-District Litigation Panel (MDL), which will transfer multiple cases pending in various district courts to one court to be heard by one Judge. These transfers, or centralization orders, are conducted for the sake of efficiency of time and costs and also to promote consistency in rulings. The cases I have worked on are prosecuted as class actions, but the class component is not dispositive of the value of the case 8 Santa Barbara Lawyer

9 Interesting Legal Practices because there are a relatively small number of class members (e.g., 500) who all suffered sizable claims (e.g; above $50,000). For instance, in these QI cases, there are victims that lost as much as $10 million that want us to prosecute their case as members of the class. If class certification failed, all of the plaintiffs could be joined and named in one complaint. The defendants in these cases want them prosecuted as class actions because settlements will bind all victims in the litigation in one forum, instead of multiple individual cases in multiple forums throughout the country. The efficiency of Rule 23 makes these class cases, even if certification could be problematic in a contested motion. Once the Class Complaint is filed, the Statute of Limitations is tolled until class certification is denied. Fighting the case by fighting class certification is not productive and the defendants know this. If the class is not certified, the defendants end up with most of the plaintiffs permissively joined. One constant battleground is the standing to sue. The class members are the ones who suffered economic injury, but they are not in privity with the professionals working for the entity (run by the criminals) which lost their money. The entity may be a proper plaintiff with privity, but it is in pari delicto with the criminals acting as the entity s agents. We try to combine the entity in bankruptcy or receivership as a co-plaintiff with the class or in a separate action so that the combined defenses of standing and in pari delicto do not defeat the case. We have been successful in the QI cases prosecuted to date. We obtained $99 million in settlements in the SWX case against insurers, brokers, law firms and banks. With the assistance of the bankruptcy Trustee in Okun, we helped contribute to recoveries totaling $106 million in two separate lawsuits filed against the same types of defendants. There are eight major defendants left in the Okun case. We have a claims administrator who deals with the victims, so I have minimal direct client contact. I do not charge hourly, so I do not have bills to be sent out and explained. The court approves all of our attorneys fees and costs. Fees are, in general, based on a percentage of the recovery obtained. These large fraud cases are expensive to manage and prosecute, but not as expensive as some other types of commercial litigation. Generally, the plaintiffs money has disappeared, and we follow the money to identify the defendants. The early forensic accounting work does not need to be perfect because the money is gone. Tracking transfers of funds greater than $100,000 gives the same information as tracking $10 transactions and costs much less to develop. I am required to travel, but not extensively. I only have two to three cases pending at any given time and they take years from open to close. The financial risk can be great if you lose, but the case s value is verifiable early on. If we lose, it is preferable to close the file at the pleading stage and not after a lengthy trial. Most defense attorneys are from large national firms. There is a high degree of civility, as the defendants are substantial entities with valuable reputations to protect. The risk managers are not gamblers and are resolution-orientated if the case gets past the pleading stage. The overall litigation environment is very professional. Client approval is also rewarding. Taking large complex cases which appear to be unmanageable and returning a substantial percentage of the clients losses is satisfying. Robert ( Rusty ) Brace is a partner at Hollister & Brace LLP. Expensive toys purchased with embezzled funds. April

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11 Interesting Legal Practices Proactive Practice: Preserving Client Value and Legal Profession By Jim Scafide M y approach to practicing law is shaped in large part by my experience. Unlike most of my fellow members of the Bar, the legal profession was not my first career. In addition, I was a consumer of legal services as a public official and when I was a general counsel. Moreover, I have enjoyed the unique ability to move between the public and private sectors, something that a lot of other practitioners have not done. This background informs my practice in how I approach issues and advise clients, and encourages me to seek a different approach to solving problems on behalf of my clients, what we refer to as a proactive approach. In the public sector, my experience and practice in the law placed me a unique position: I was approached by Massachusetts Attorney General Martha Coakley to be the Chief of, and to build, a newly-created division named the Business, Technology and Economic Development Division (BTED) within the Attorney General s Office. In selecting me, the Attorney General stated that I had a unique public and private sector mix. Before ever considering law school, I had been in politics in the city of East Liverpool, Ohio, first elected a City Councilman at 18 and elected Mayor at 26. After I served as Mayor, I received my Masters in Public Administration from the Kennedy School of Government at Harvard University. It was only then that I considered law school. After earning my JD from Boston College I worked at large firm in Boston practicing litigation and transactional work. I left the firm to earn my L.L.M. from Harvard Law School and took a job as General Counsel for a public company. Through my practice as General Counsel, I became acutely aware of the issues that face private-sector clients, and relied on my experience in the public sector in dealing with issues of permitting and compliance. In my role as the Chief of BTED, I acted as a liaison between the private sector and the Attorney General s office so that the voice of the business community would be heard as the Attorney General developed policy. The Attorney General was legitimately concerned that decisions she might make might have unintended consequences on the business community. The Attorney General recognized the importance of all aspects of State Government working to improve the economic climate, and that is why she created the Division. (BTED is the only division of its kind among all other Attorneys General, which is rather Jim Scafide strange, especially in these economic times when all States are working to improve their economic opportunities.) One of my chief projects was working with the Governor s Office to examine regulations in the Commonwealth that were duplicative, outdated, or confusing to make compliance with policies easier to achieve. This was not done at the expense of the hard-fought protections that Massachusetts residents enjoy with regard to consumer and environmental safety. Instead, it was a way to reduce the cost of compliance, saving businesses money and improving the economic climate. For instance, this effort allowed for innovative approaches to reporting to regulatory agencies that saved healthcare providers millions of dollars annually, without sacrificing any protections for the State s residents. This was truly one of those rare win-win scenarios. This type of cooperative approach to the law, along with my analytical and policy perspective is how I try to approach the practice of law and advocating on behalf of my clients. Because I can compare and contrast the private and public sectors clients and government entities I feel I am better able to navigate my way through often difficult issues. The key, in all of this, it seems to me, is recognizing that no one is really the enemy. The vast majority of business persons want to do what is right, and the vast majority of government is working to do the right thing. Getting everyone to recognize that goes a long way in solving most problems. As lawyers, we spend a lot of time fighting especially one another. In the end, litigation usually settles, and to the extent it actually goes to trial, concessions are made along the way among counsel. Too many lawyers, it seems to me, spend time posturing like barking dogs, which is really counter-productive to their clients interests and serves to primarily drive up legal fees. This is unfortunate. As a busi- April

12 Interesting Legal Practices ness lawyer, most of my clients are sophisticated business people and the dispute(s) between them are not personal in nature; they are business-related. In that regard, most disputes can be resolved in a business-like manner. Many attorneys, however, take the more dramatic, less productive route of making issues personal and playing one-ups-manship. From a client s perspective, this can be frustrating. Often we see situations where ego-driven attorneys go head-strong into litigations that end with a plaintiff that has suffered for two years, with attorney fees in the six figures and approaching bankruptcy, finally getting a judgment against a defendant that will simply go bankrupt. As I mentioned, as the general counsel for a public company, I was a consumer of legal services. I m sensitive to the fees that lawyers charge their clients and I find it counterintuitive that settlement of disputes cannot be achieved because of the amount of legal fees. The approach that the lawyers take charging head-long into litigation, first, and then attempting settlement is really not a proactive way of practicing law. In my current practice at Buynak Law, we take an alternative approach. While fully recognizing that there are issues that must be litigated because settlement may be impossible, we are more concerned with preserving client value. We attempt to achieve settlement first before the rapidly-growing litigation bills start running up. This is better for us, because we don t waste our time working on aspects of matters that ultimately settle, and better for our clients because it achieves for them a fair settlement while saving them money. In the end, however, it is the cooperative approach to the law that allows for these types of outcomes. The greatest asset that a lawyer can have is her or his ability to be empathetic to the other side, and to endeavor to find an outcome that creates value, rather than a zero-sum gain or a win-lose scenario. This is not always possible, of course, but our clients benefit most when this can be accomplished. Whether I m guiding a client through regulatory issues with government agencies at the federal, state or local level, negotiating a contract, or representing my client in a dispute, I keep an eye out for opportunities to maximize value for both sides. I think that makes for a more fulfilling practice of the law. I hope that the practice of the law moves more into this direction, and I think that the inherent inefficiencies of the system will force its reform. It may be idealistic of me to imagine, but I envision a future where civility prevails among practitioners, and mediation is an up-front alternative before filing a lawsuit. I imagine that the Courthouse could provide immediately-available mediators to quickly resolve disputes. In the current, rapidly-accelerating cost of litigation, few, if any, business litigants will remain. Functioning markets, above all else, demand certainty, and our legal system can go a long way in helping to achieve that certainty by providing a mechanism for rapid and inexpensive resolution of disputes. The court system needs to reform so that the pressure from the many simple disputed issues does not force the judicial system to decline into merely family, criminal, collection and personal injury litigation. We are, after all, professionals, and we should seek to further the intellectual, theoretical and philosophical aspects of our vocation and the judicial system within which we function. We best do this by seeing ways that we can improve the legal system in ways that improves society, as a whole. Otherwise, our profession will disintegrate the apparent fate suffered by other professions. Jim Scafide is an attorney at Buynak Law Firm. 12 Santa Barbara Lawyer

13 I Learned About Lawyering From That Practical Jokes By Th e Jo k e r In response to John Derrick s solicitation of ideas for this new column in SB Lawyer, I offer this historical review of practical jokes in our legal community. Below are a few, but there are, undoubtedly, even better ones out there, and a further column will follow. If you have one to suggest to The Joker, please forward complete information to John Derrick at (as, for now, I, The Joker, wish to stick with my nom de plume). First, how should we define our term practical joke? Technically, it is a prank or trick played on a person, especially one intended to make the victim appear foolish. Lawyers have their own standards, and many lawyer-tolawyer practical jokes actually demonstrate a joker s respect for the victim (hereinafter jokee ). In some ways, the greater the time/effort invested in the prank, the greater the respect. It also appears that many lawyers sense of justice dictates that when A pulls a good one on B, it is only a matter of time before B tries to outdo A. Caveat Joker, is the rule of the day. In some ways, the very first Santa Barbara County Attorney s Directory, published by the Barristers Club in , was one big practical joke. The initial editing was simply awful. After co-publishers Rob Egenolf, Jeff Nelson and Joe Howell created the Directory, sold the ads, did the layout, and badgered attorneys for photos, they apparently were too fatigued to proofread. Their first edition was so bad that in one firm of three lawyers, each had a slightly different telephone number listed and none was correct. As a result, the Rob/Jeff/Joe team was forced to scrap the first edition, do a little proofing, and incur the expense of a new production run. However, all those funky Directories, ready for the dumpster, created an opportunity. Rob was then an associate at Westwick & Collison, and all who know Jim Westwick will agree that he is a man clearly who deserves all the practical jokes one can send his way. Rob had a special edition of the Directory created. Next to Jim s name and bio was not his photo, but one of the late Jim Oppen, then a fellow lawyer in town. Let s just say Mr. Oppen s name would likely have appeared on many an attorney s list of the five lawyers with whom he least wanted to be confused. Westwick opened his brand new Directory, and like each of us when receiving the new edition, immediately turned to his name and photo. His discovery was followed by curses and screams heard throughout the building (and probably at the courthouse the guy has a voice). Down the street, at approximately the same time, Schramm Raddue & Seed associate Howell was pulling the identical stunt on John Warnock. The joke had an impromptu assist when Joe Abkin heard about it, then walked by John s office and said: Welcome back from vacation; hey, what s up with that new Attorney s Directory? Everyone at the University Club was talking about your picture! John opened the book. He was not a happy guy. In fact, Howell reports that during his conference with Warnock about the egregious error, only when John heard that Jim Westwick was a victim of the same joke was Joe s status at the firm no longer at risk. In closing, The Joker will peak your curiosity about future column(s) that will likely feature the following: Lawyer legends Louis Renga and Jim Westwick knew no bounds in their dueling practical jokes. For example, what would you do if a mystery percipient witness called, the night before your opening statement, with testimony that nailed your client, and only hours later did the joker advise you it was my sister doing an imitation? How about setting up your law partner to believe he was to present his induction speech as newly appointed chair of a State Bar section... only to have him learn of the joke as he entered a dark, empty ballroom, speech in hand, in his tuxedo? Would it surprise you to learn that when the jokee turned joker, he actually removed the jokee s office door and had the opening plastered over, leaving a law office with no entrance? Stay tuned readers this and more coming your way soon! Oh, and by the way, what did I (and what should you) learn about lawyering from that? Only that lawyers can be jokers. And quite effective ones, too. April

14 SBCBA News Who Is This Person? By Lida Sideris She was born in North Hollywood, CA early one summer, sometime between the JFK and Nixon administrations. She grew up in various cities around Los Angeles, including Brentwood, Encino and Palos Verdes. Her family expected her to follow majority rule and become a physician like the rest of them. She became known as the family rebel for choosing a legal career instead. Not necessarily because of her passion for injustice, although that certainly was a consideration, but it helped that law school only took three years to complete. Her college years were spent at UCLA where she graduated with a political science degree. Much of that time was devoted to working in various legal offices around town and volunteering with the Santa Monica Legal Aid Society. Law school followed at Southwestern University School of Law. Realizing early on that she wished to bypass working in a law firm in favor of a motion picture studio, she co-founded the Entertainment Law Society where she routinely convinced various business affairs executives to come in to speak with students. She then took the guests out to lunch. One of these luncheon dates turned out to be the Senior Vice President of the Alliance of Motion Picture & Television Producers. The two hit it off and have been fast friends ever since. That fateful lunch led to an internship, a clerkship and finally an attorney job with the Alliance. Things Lida Sideris were going according to plan. Soon after, she left the Alliance to work in the business affairs department of Lorimar-Telepictures, representing clients such as Jane Fonda, Richard Simmons and Vanna White. She and her husband, Ken, are the proud parents of two sons. Her favorite season is golf season because she enjoys watching and walking with her golfer son, who incidentally, won the SCPGA Santa Barbara Junior Golf Open in She is fond of carrying Rhode Island-size handbags and raising stubborn, but eye-catching Cochin chickens. Her interests include compulsively baking lemon meringue pies and reading everything from Skinny Bitch to Uncle Tom s Cabin to The Autobiography of a Yogi. Who is this person? She is Lida Sideris, your new SBCBA Executive Director. The Santa Barbara County Bar Foundation announces the Law Week 2010 lineup. Highlights include: Medical Marijuana Law update will be held Saturday, May 1 from 2-4 pm at the Santa Barbara Library. District Attorney Candidates Debate, sponsored by the Bar Foundation, will be held Monday, May 3 from 6-8 pm at the Santa Barbara Library. Trip to the Dodgers will be held Tuesday, May 4. Transportation and ticket cost $65. Contact Cristi Michelon at for more information. Human Rights Watch presentation will be given Wednesday, May 5 from 7-9 pm at the Santa Barbara Library. Kids Court will be held Thursday, May 6 from 5 pm at the Santa Barbara County Courthouse Department 6. The Law Day Essay Contest Awards / MCLE Event Literature and the Law will be held Thursday, May 6 from 7:30-9:30 pm at the Santa Barbara Library. Teen Court Luncheon will be held Friday, May 7 from 12 1:30 pm at the University Club, 1332 Santa Barbara Street. $45 includes lunch. Contact Naomi Dewey at for further details. 14 Santa Barbara Lawyer

15 Finally, someone my clients can count on just like they count on me. Your relationship with your clients is all about trust. They trust your integrity and expert legal advice. And they value the personal and confidential relationship you share. It s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding client relationships. In offering creative solutions for each person s unique needs. And especially in earning their trust with personal commitment and professional expertise. Whether it s designing an investment portfolio, managing multiple real estate properties or planning charitable gifts, you can count on our Wealth Management team to provide your clients with a level of service that meets not just their needs, but your standards. Wealth advisory services one of the many Paths to prosperity you ll find at Montecito Bank & Trust. What s your path? WEALTH MANAGEMENT Investment Management - Trust Services - Estate Administration Real Property Management - Philanthropic Services Call for more information Santa Barbara: 1106-E Coast Village Road, Montecito, CA Solvang: 591 Alamo Pintado Road, Solvang, CA Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA Member FDIC April

16 Legal News Book Review: Under Submission The Columns of Arthur Gilbert By Betty L. Jeppesen To pick up Under Submission is to enter a world of fun and entertainment. This wonderful book comprises 123 short stories that span the first 20 years ( ) of Presiding Justice Arthur Gilbert s distinguished career. It clearly shows the balance between the day-to-day razor sharp legal mind and the entertaining jazz pianist who plays occasional gigs in the Los Angeles area. The book begins with a quote from Charles Embree, writer, artist, musician: Not all judges are piano players, but certainly all piano players are judges. They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when. The sound heard is the soundness of the judgment rendered. If the music is select, you must elect! Based on this argument you will be receiving my vote in the upcoming contest. Justice Arthur Gilbert is the Presiding Justice on the California Court of Appeal, Second District. He has been a judge for over 33 years, serving on the Los Angeles Municipal and Superior Courts. At the annual Appellate Justices Reception 2009, Justice Gilbert said that someone asked him if he was ever going to retire and to which question he replied: What, I m not doing a good job? In fact, he is definitely doing a good job and we hope he never retires. His written opinions are well known for their scholarship and clarity and the obvious careful consideration given to salient details. He has been dubbed The Court of Appeal s Poet Laureate. His articles and columns have been published in a variety of publications in the United States. He has taught the philosophy of judging and the art of crafting opinions to judges both in California and abroad. A reporter once asked Justice Gilbert what is was like to be an appellate judge. His response was: It is just the two of us in a room, me and my brain only often I m alone. Such is the humor that spawned such vignettes as The Colonoscopy and the Alien, Another Colonoscopy, We Will Thank and Excuse Juror No. 4, A Choice: Madonna s Book, Sex My Book Lex, The Frightful Adventure of Judge Learned Foote and How It Turned Out, The Lady on the Elliptical Machine and more. These stories range from Boz the kitten who arrived at the Court of Appeal and lived 16 happy years chez Gilbert to stories giving Betty L. Jeppesen insight into Bernard Witkin, Richard Abbe, Stanley Mosk and Otto Kaus, all of whom this writer was privileged to meet and who left an indelible impression. Readers of Justice Gilbert s book can become acquainted with them through this venue. See Witkin The Immortal Scholar, Richard Abbe, Stanley Mosk A Justice Par Excellence, and Otto Kaus Eyes the Crocodile in the Bathtub. An aficionado of films, Justice Gilbert wrote his review of Reel Justice: The Courtroom Goes to the Movies in the story Reel Dilemmas Two UCLA Professors Explain. A quote from this will give the reader a sample of the delights that await in Under Submission. If you think judges are immune from this ordeal [being asked difficult questions] because they get to ask questions, you are mistaken. I ask questions, but the answers I get only prompt more questions. Ultimately I have to supply the answer. In fact the strain in particularly hard on judges because they are expected to know everything, when in fact the opposite is usually the case. At a dinner party the other night, just as I was placing a generous spoonful of vichyssoise in my mouth, someone at the other end of the table said in a voice a little too loud, Judge, in the movie, The Star Chamber, was the evidence the police found in the garbage really inadmissible? And why wasn t the bloody shoe found in the van admissible? There were three, maybe four lawyers at the table. In the second or two that it took the vichyssoise to fight its way Continued on page Santa Barbara Lawyer

17 Strategize Amy runs a Key Facts report to jump-start her summary judgment motion Find Bob uses five minutes at the airport to run a search for the evidence for tomorrow s hearing Organize Eric discovers bombshell document, sends it to West Case Notebook, and annotates the key section Draft Mary sends a clip from a pivotal case, along with the case citation, directly into her memorandum OUT-ORGANIZE. OUT-PREPARE. OUT-ANALYZE. West Case Notebook helps you analyze cases with unprecedented efficiency and thoroughness. Accessible anytime, anywhere so that team members can easily gather, annotate, search and consult: Key facts Documents Transcripts Pleadings Legal research And more! West Case Notebook: there s no better way to analyze a case. For details, call or visit west.thomson.com/casenotebook Thomson Reuters L /10-09 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters. April

18 Appellate Brief Supreme Court Grants Review of Local Class Action Decision By He r b Fo x Under what circumstances does a California consumer have standing to sue a retailer for unlawfully collecting a sales tax? Jeppesen, continued from page 16 down my throat, everyone stopped eating and looked at me. I had a fleeting thought about Einstein s theory that time is relative. Was it two seconds, or a hundred million years later that I said, Well that all depends. The pause following this well-proven escape hatch gave the lawyers an opening to scream, I mean voice, their opinions on the subject. I concentrated on my vichyssoise. I could have said, the suppression motion may have been properly granted when the film was made, but in California v. Greenwood, decided by the U.S. Supreme Court after the film was made, police officers may search a person s trash can without a warrant. And today, police may arrest a person based on their good faith reliance on information obtained from a computer database, even if that information turns out to be wrong. (Arizona v. Evans.) Today the arrest of the scuzz-bags in the van would be valid, and the bloody shoe would have been admissible. Not so when the film was made. And by the way, The Star Chamber was an English court created in 1347, which later became known for its severe punishments and arbitrary procedures and after dessert, I would be happy to talk about Witness for the Prosecution. How could I have had all this information at my finger tips and made such a penetrating and incisive analysis? By simply reading a marvelous book with the catchy title, Reel Justice, The Courtroom Goes to the Movies. How can attorneys, law students (and anyone who wants to) be thoroughly charmed and entertained while at the same time being educated and enlightened? By simply reading a marvelous book with the catchy title, Under Submission The Columns of Arthur Gilbert. That is the question accepted by the state Supreme Court for review late last year in a case that worked its way up from the Santa Barbara Superior Court and our Court of Appeal bench in Ventura. Kudos to James H. Smith of Grokenberger and Smith, and his San Diego co-counsel William D. Pettersen of Pettersen and Clark, representing Herb Fox the plaintiff in this putative class action, for getting the Supreme Court s attention. The issues, an arcane one at first glance, arise out of these basic facts: Plaintiff Richard A. Yabsley saw a Cingular Wireless advertisement for a discounted cell phone, and he purchased the cell phone with the calling plan. When he received the sales receipt, he noticed that the sales tax was imposed on the regular price of the cell phone, $299.99, rather than the discounted price of $149.99, resulting in the payment of $11.62 more in sales tax than he had anticipated. Yabsley filed a putative class action complaint against Cingular, alleging unfair business practices and false advertising. But the late Superior Court Judge William McLafferty sustained Cingular s demurrer on the grounds that a Board of Equalization regulation (1585), which requires that sales tax on a bundled cell phone sale, i.e., a cell phone purchased with a call plan, be calculated based on the phone s higher, unbundled price, immunized the company from liability. The Court of Appeal, in a published opinion by Associate Justice Steven Z. Perren, affirmed (Yabsley v. Cingular Wireless LLC (2009) 176 Cal.App.4 th 1156). Appellant filed a Petition for Supreme Court review. At about the same time, a similar case was winding its way through the system. In Loeffler v. Target Corporation (2009) 173 Cal.App.4th 229, the Court of Appeal in Los Angeles held that a taxpayer had no standing to file a private suit against a retailer for collecting an allegedly unlawful sales tax. The Supreme Court granted review of Loeffler in September, Then, last November, it granted review of Yabsley on a grant-and-hold, with Loeffler as the lead case. Herb Fox is an AV rated certified appellate law specialist and was named a 2010 Southern California Superlawyer. 18 Santa Barbara Lawyer

19 Larry L. Hines Mediation Services Where Experience and Knowledge Count Limited to complex family law, probate/trust, business and employment law Serving Los Angeles, Ventura, Santa Barbara & San Luis Obispo Counties 40 years of civil and appellate experience Practice devoted primarily to complex family law, probate/trust, business and employment law Participated in hundreds of mediation and settlement conferences Lead trial lawyer in over 100 jury and court trials Served as mediator, arbitrator and temporary judge Attended the Straus Institute for Dispute Resolution, Pepperdine School of Law Larry L. Hines, Of Counsel Nordman Cormany Hair & Compton LLP, 1000 Town Center Drive, Sixth Floor, Oxnard, CA Call Marina at (805) for appointments See website for details and Curriculum Vitae at Lawyer Referral Service of Santa Barbara County Your next client could be a LRS Referral Want to build your practice? Want to find new clients in your concentration? Want to develop a new practice area? As a member of the Lawyer Referral Service of Santa Barbara County, you ll enjoy receiving potential clients who already have been screened by Lawyer Referral Service staff. Not only will you receive potential clients in need of legal help, but you can be assured that anyone referred to you will have the type of legal problem that you have indicated as fitting within your practice areas. You won t be wasting your time listening to people who need help, but who don t need legal help. Join the Lawyer Referral Service of Santa Barbara County, and you can look forward to being part of an efficient service that benefits the public and Santa Barbara County legal community. Member service and compliance with State Bar Rules are top priorities. Contact us for specifics and an application. Lida Sideris at (805) April

20 Michael Baik, Bailiff, Dos Pueblos High School, swearing in the witness. Richard Cheng, Dos Pueblos High School Defense Team, on cross examination. Exhibit A 2010 Santa Barbara Mock Trial Competition First Place Dos Pueblos High School Second Place San Marcos High School Third Place Santa Barbara High School Fourth Place Laguna Blanca High School Christina Li, Dos Pueblos High School Defense Team, being sworn in as Morgan Bernard, witness. Santa Barbara High School Defense Team and Cate School Prosecution intently listen to Judge Anderson s verdict. Photos by: M. Lyons 20 Santa Barbara Lawyer

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