Santa Barbara. Lawyer. Official Publication of the Santa Barbara County Bar Association September 2012 Issue 480

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association September 2012 Issue 480

2 2 Santa Barbara Lawyer

3 September

4 Catherine Swysen President Sanger, Swysen & Dunkle 125 De La Guerra Street, Ste. 102 Santa Barbara, CA T: ; F: Donna Lewis President Elect Attorney at Law 789 North Ontare Road Santa Barbara, CA T: ; F: Scott Campbell Secretary Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA T: ; F: Matthew Clarke Chief Financial Officer Christman, Kelley & Clarke 831 State Street Santa Barbara, CA T: ; F: Mack Staton Past President Special Projects Awards and Board Development Mullen & Henzell LLP 112 East Victoria Street Santa Barbara, CA T: ; F: Marysol Bretado Events Attorney at Law 5733 Hollister Ave, Ste 4 Goleta, CA Santa Barbara County Bar Association Officers and Directors Christine Chambers Santa Barbara Lawyer Hager Dowling Lim & Slack 319 E. Carrillo St. Santa Barbara, CA Danielle De Smeth Liaison / Events Attorney at Law 833 E. Anapamu Street Santa Barbara, CA Naomi Dewey Santa Barbara Lawyer Hardin & Coffin 1531 Chapala St, Ste 1 Santa Barbara, CA ; Fax: James Griffith Bench & Bar Attorney at Law 1129 State Street, Ste 30 Santa Barbara, CA ; Fax: Gregory McMurray Bench & Bar Attorney at Law 1035 Santa Barbara St, Fl 2 Santa Barbara, CA ; Fax: Brandi Redman MCLE Special Projects Attorney & Counselor at Law 1021 Laguna St Apt 8 Santa Barbara, CA ; Cell: Mission Statement Santa Barbara County Bar Association Angela Roach Bench & Bar Relations University of California Santa Barbara Employee and Labor Relations 3101 SAASB Santa Barbara, CA Kelly Scott MCLE Chief Deputy District Attorney Santa Barbara County District Attorney 312 E. Cook Street, Bldg. D Santa Maria, CA Carl straub, jr. Bench & Bar FLIR Commercial Vision Systems Inc. 70 Castillian Dr. Goleta, CA ; Fax: James sweeney Events Allen & Kimbell, LLP 317 E. Carrillo Street Santa Barbara CA Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA T: ; F: 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. Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2012 Santa Barbara County Bar Association CONTRIBUTING WRITERS Benjamin Bycel Kristina Katz Cercone Jeanie Class James P. Griffith David K. Hughes Louise LaMothe Angela D. Roach Robert Sanger Collin P. Wedel EDITOR Naomi Dewey ASSISTANT EDITORS Christine Chambers Lida Sideris MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James P. Griffith PHOTO EDITOR Mike Lyons PRINT PRODUCTION Wilson Printing Submit all EDITORIAL matter to with submission in the subject line. Submit all MOTIONS matter to Michael Pasternak at 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 September 2012 Issue 480 Articles 6 Opinion Writing, Third Edition: The Expert on Legal Writing Updates His Well-Worn Classic for a New Generation of Lawyers and Judges, By Kristina Katz Cercone and Collin P. Wedel 7 Making Things as Right as Possible, By Louise LaMothe and Jeanie Class 8 Legal Community Comes Together to Feed Local Children in Second Annual Food from the Bar Drive, By Angela D. Roach 9 Interview with District Attorney Joyce Dudley, By James P. Griffith Not in a position to provide service? Conflict of interest? Out of your practice area? Send the client to Lawyer Referral Service Santa Barbara County s ONLY State Bar Certified Lawyer Referral Service A Public Service of the Santa Barbara County Bar Association 12 Post-Traumatic Stress Spectrum Disorder, By Robert Sanger 16 Effective Direct Examination, By David K. Hughes 20 Is There Such a Thing as a Bullet Proof Fee Agreement? An Introduction to Attorney Fee Agreements, By Benjamin Bycel Sections 22 Motions DaviD K. HugHes retired trial Attorney 24 Verdicts & Decisions 26 Section Notices 30 Calendar About the Cover This month s cover photograph depicts a finch and a red winged blackbird in the Santa Barbara backcountry. The photograph was taken by Jessica E. Bickham, a forensic scientist with Technical Associates, Inc., specializing in DNA analysis and attorney consultation in criminal cases. ArbitrAtion v ChristiAn ConCiliAtion Contact David at or nominal Fees & Pro bono Work September

6 Legal Community Opinion Writing, Third Edition: The Expert on Legal Writing Updates His Well-Worn Classic for a New Generation of Lawyers and Judges By Kristina Katz Cercone and Collin P. Wedel O pinion Writing, first published over two decades ago, has long been considered the seminal resource for new judges. Indeed, from 1990 to 2007, West Publishing Company distributed the first edition to all federal judges and every state appellate judge, gratis. This highly anticipated third edition provides a fresh take on the art of writing judicial opinions. Aldisert begins by identifying an epidemic of poor legal writing and opinion drafting. He then aims to cure the reader of any bad habits by walking his audience through the writing stages. He begins with a primer on Greco-Roman logic and an explanation of the common law system and judicial process. Then, with the aid of hundreds of opinion excerpts and style guides, he assists the reader in drafting an opinion with step-bystep instructions. He concludes with a series of checklists that will prove indispensable to writers at the close of their drafting process. These how-to chapters and checklists encompass all forms of writing and are aimed at all types of judges federal, state, trial, appellate, administrative, even arbitrators and their law clerks. Although the primary audience is judges and their law clerks, all lawyers will find excellent legal writing advice and insight. Equal parts teaching manual and compendium of information, this book is a must have. Who is Judge Aldisert to tell others how to write opinions, one might ask? Born in Carnegie, Pennsylvania to an Italian immigrant father, Aldisert graduated at the top of his class from the University of Pittsburgh and immediately enrolled at Pitt Law School. His studies were interrupted, however, by the outbreak of World War II, during which Judge Aldisert between his law clerks, Kristina Katz Cercone and Collin P. Wedel, at Glen Annie Golf Course in Santa Barbara, California. the Judge served in the United States Marine Corps in the Pacific, attaining the rank of Major. After the war, he graduated law school and worked in private practice for almost fifteen years before becoming a judge on the Allegheny County Court of Common Pleas. As the calendar control judge, his visionary innovations in court administration eliminated a four-year backlog of cases and catapulted him to national prominence as courts around the country adopted his procedures. President Lyndon B. Johnson nominated Aldisert to a seat on the U.S. Court of Appeals for the Third Circuit on July 17, He was confirmed by the Senate on July 29 and took his oath of office on August 9, Since that time, the Judge has been busy honing his skills as an opinion writer and opinion reader, hearing and deciding a full load of cases from the Third Circuit, as well as from the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits, on which he has often sat by designation. Aldisert has the remarkable and rare credential of having been a judge for longer than he hasn t; this year marked Judge Aldisert s 50th year on the bench 7 years on the Allegheny County Court of Common Pleas, and 43 years on the Third Circuit. In those 50 years, Judge Aldisert has heard literally thousands of arguments and penned hundreds of influential opinions. In his spare time, he has taught courses at law schools across America and Europe and has merited a particularly well-deserved reputation as a writer, having penned over 50 law review articles and nearly a dozen books. These feats have earned him the University of Pittsburgh Distinguished Alumni Fellow Award, the American Bar Association s Distinguished Appellate Jurist Award, and the Legal Writing Institute s Golden Pen Award, among other honors. He brings all of this experience to bear in Opinion Writing, garnering advance praise from such distinguished judges as U.S. District Judge Christina A. Snyder, of Los Angeles, who writes: Judge Aldisert s Opinion Writing has been justly recognized as an invaluable guide for judges everywhere. Brilliant and engaging, it is a veritable treasure trove of wise and highly useful advice distilled from decades of experience by a true 6 Santa Barbara Lawyer Continued on page 10

7 Legal Community Making Things as Right as Possible By Louise LaMothe and Jeanie Class J uvenile offenders in Santa Barbara County who have admitted to their crimes (misdemeanors and some felonies), are being given the opportunity to meet with their victims to try to make things as right as possible. Conflict Solutions Center of Santa Barbara County convenes these meetings as part of its Restorative Justice services in North County, which include Victim/Offender Mediation, Circle Conferencing, and a new series of conflict resolution training for youth called Help Increase the Peace/Victim Impact Panels. Conflict Solutions Center staff and volunteers provide intake and facilitation services to victims and offenders referred by several agencies in the criminal justice system with the conceptual support of officials from the courts, district attorneys, public defenders, police, and the probation department, and with funding from the courts and local foundations. Restorative Justice is a national and international movement of communities to address the causes and consequences of crime in new ways. Rather than viewing crime as a violation of state laws, crime is defined as an injury to the victims and the community. The primary purpose of justice in the Restorative model is to repair the harm of the crime to whatever degree possible, in a very personal way with the victim. The goals of the Restorative Justice model include: accountability of the offender; direct dialogue between the offender and victim; and strengthening community safety. Restorative Justice does not involve a trial or a sentencing, and it is a voluntary process for both offender and victim. With the assistance of a facilitator (or mediator), offenders and victims are provided with a safe environment to have an in-depth conversation about how to restore those affected by the crime. Victim/Offender Mediation is convened with the parties after the mediators have listened privately to each about how the crime has impacted them, and explored their willingness to participate in a face-toface dialogue. Circle Conferencing is another Restorative Justice model that convenes larger groups of people who know the victims and the offender and who have all been affected by the crime, including family members, friends, neighbors, clergy, etc. This circle of support helps the offender develop a restitution plan and design an accountability plan for the offender to become a productive member of the community. Conflict Solutions Center monitors all agreements arising from the meetings. Evaluations show that victims experience a high-degree of satisfaction, and offenders are also deeply affected by the meetings with those they have harmed: Victim statement: My husband didn t want to go, but when it was finished we knew that we had done the right thing. We all make mistakes We found that the process helped us forgive the offender. We didn t want to live with that anger it can be consuming. Everyone in that room took something away. I think the program created an environment of forgiveness and letting go. It was a safe place and a safe environment to talk and to forgive. We feel blessed to have gone through the process. Offender statement: It made me take a long look at my decision making and how my actions affect others. I can definitely say the mediation was hard to go through and will have a long term effect on me and my family. Help Increase the Peace/Victim Impact Panels is a training designed for young offenders to help them understand the impacts of their crime and learn new tools for conflict resolution. Help Increase the Peace training sessions take place after school or on Saturdays, with interactive activities rather than lectures. Victim Impact Panels are presented to the youth by crime victims who describe in detail how they were impacted. (In the last panel of five victims, two were mothers who lost their sons, one to a gun homicide and one to a drunk driver.) The written evaluations by the youth included the statements: I learned that I can change if I really wanted to; I gained intelligence and changed the way I thought about myself; I learned how to respect older people; I can think twice about doing things. One goal of Conflict Solutions Center is to expand these Restorative Justice services to South County in a collaborative effort with other agencies. More information about Restorative Justice and the non-profit s other conflict resolution services can be found on the website: org. To offer support of Conflict Solutions Center s North County services and/or help with the planning and implementation of Restorative Justice services in South County, please contact Conflict Solutions Center by phone (Santa Barbara ; Santa Maria ) or through its website, Louise LaMothe, the President of the Conflict Solutions Center Board of Directors, is a mediator and arbitrator; Jeanie Class was a co-founder of the agency in 1989, and is currently its Mediation Services Coordinator. September

8 Legal News Legal Community Comes Together to Feed Local Children in Second Annual Food from the Bar Drive By Angela D. Roach F or a second year, the legal community came together to raise funds and collect food as part of the Food from the Bar Drive. All donations were made to the Foodbank of Santa Barbara County. For thirty years, the Foodbank of Santa Barbara County has provided nutritious food to those in need in our County. The Foodbank s impact on our local community is astounding. Nearly one in four people in our County receive food support from the Foodbank and 44% of those served are children. During 2011, the Foodbank of Santa Barbara County distributed 11 million pounds of food to 102,000 unduplicated recipients from two warehouse locations in Santa Maria and Santa Barbara. This year, all funds raised as part of Food from the Bar went directly to benefit the Picnic in the Park Program. This program was designed to provide healthy lunches, food literacy classes, and physical activity to children 18 years and under for ten weeks during the summer months. A staggering 84% of children in our County who receive free or reduced lunches during the school year get nothing during the summer. The Foodbank works to fill this void through Picnic in the Park. During Picnic in the Park this summer, the Foodbank distributed 22,000 healthy lunches, serving approximately 600 lunches at 17 different sites per day. Each healthy lunch can be provided for only $3.30. Santa Barbara Women Lawyers (SBWL) coordinated the Food from the Bar Drive again this year. Nearly every legal organization in Santa Barbara joined to co-sponsor Food from the Bar. This included the following legal organizations or groups: Santa Barbara County Bar Association, Santa Barbara County Bar Foundation, Santa Barbara Women Lawyers Foundation, Santa Barbara Paralegals Association, Santa Barbara Barristers, Santa Barbara Legal Secretaries Association, Legal Aid Foundation of Santa Barbara County, Environmental Defense Center, California Rural Legal Assistance, Santa Barbara District Attorney, and Santa Barbara Public Defender. The 2012 Food from the Bar Drive kicked off with an event at Killer B s on June 27, Over 50 people attended to show their support for the Drive and listen to Eloisa Chavez from the Foodbank talk about the Picnic in the Park program. Killer B s generously donated a portion of the proceeds during the event to jump start the fundraising efforts. The Drive officially started on July 1, 2012, and ran during the month of July. At the start of the Drive, SBWL set a goal to raise over $10,000 for the Foodbank of Santa Barbara County this year, which was double the 2011 goal. While donations continue to come in, as of August 7, 2012, Food from the Bar has raised over $10,050, exceeding the goal! The donations came from the legal organizations listed above including SBWL, SBWL Foundation, and Barristers, and generous donations by individual members of the legal community. The 2012 goal could not have been met without significant contributions from Food from the Bar Community Partners. Platinum Sponsors ($1,000 or above) included Brownstein Hyatt Farber Schreck and Walter R. Anderson Insurance Services. Special thanks to Brownstein Hyatt Farber Schreck who made a leadership gift to the Foodbank as part of the Drive in the amount of $2,500. Gold Sponsor ($500 or above) included Ghitterman, Ghitterman & Feld. Silver sponsors ($250 or above) included Hager, Dowling, Lim and Slack PC, Law Copy, Hebda Property & Title Solutions, and Law Offices of Saji Gunawardane. Additional thanks to Steven Hamagiwa at West, Bacara Resort for collecting food, and Law Copy for donating the advertising for the Drive. Finally, thank you to the SBWL Board members who helped coordinate the Drive, namely Emily Allen, Brandi Redman and Jennifer Yates and Jane Lindsey and Eloisa Chavez at the Foodbank. Food from the Bar is a unique opportunity for the legal community to come together for one common goal. The success of the Drive this year demonstrates both the generosity of our legal community and the significant impact we can make when we work together. Thank you to everyone who supported Food from the Bar and ensured it was a success in 2012! Angela Roach, past president of SBWL, joins local children for the Foodbank s Picnic in the Park. 8 Santa Barbara Lawyer

9 Legal News Interview with Joyce Dudley District Attorney Reflects on First Two Years in Office By James P Griffith JG: You said after your election two years ago that one of your goals was to stabilize the D.A. s office after what most would agree was a pretty tumultuous period. How do you feel you ve succeeded? JD: I think I have succeeded. Realistically, there were some people in the office who wanted my opponent to win and they wondered what effect supporting him would have on them. I think one of the things they ve noticed is that I haven t been punitive. It s one thing to say I ll treat everyone fairly, it s another to keep people in the units and offices they wanted to remain in, as well as giving them raises and promotions. When people saw I was actually going to treat people fairly, I believe that helped the healing. Keeping promises is more important than making them. The first year I was here, we had triple the number of people come to the office barbecue, on a Sunday, which I was very happy about. There s a sense now that we re all back to being part of the same team. JG: Any comments regarding Josh Lynn, your opponent in the race, who now has his own criminal practice? JD: I saw him the other day at a Fiesta party. We said hello and shook hands. I wish him well. JG: What are some of the major challenges you ve faced since coming into the office? JD: One of them has certainly been the recent increase in officer-involved shootings. That s been on everybody s mind. In 2010 we didn t have any, and now this year we ve had eight in the North County alone, and I believe a total of ten. That s a large number of officer-involved shootings, and our office responds, on some level, to them all. These are very important decisions. Our community looks closely at officer-involved shootings to see if law enforcement agencies, including the district attorney s office, are doing the right thing in a transparent and ethical manner. AB 109 is another challenge. Where people used to be sent to prison, now they are going to county jail, and because our jails are overcrowded those same people are being released early. Drug sales and gang activity are also big challenges. We re seeing an increase in gang crime in the North County, the sales and use of dangerous drugs throughout, in addition to a spike in all kinds of theft crimes. In addition I m implementing several new programs to respond to these challenges. JG: What are some of these new programs? JD: We re just about to launch a misdemeanor diversion program. I was at a D.A. conference last year where the Orange County DA told me he diverted [away from criminal prosecution] many of his non-violent, non-sex offending misdemeanors. He further explained that there were a number of expected and unexpected benefits: the cases don t clog up the criminal justice system, people who ve made minor mistakes can avoid having a criminal record, and it allows for victim resolution and restitution to occur in a more expedient fashion. What he didn t expect, was that there would be a decrease in recidivism. So we ve spent the last year putting the program together, and now we hope to get the Board of Supervisors approval and start it up very soon. JG: Are the police and sheriff s departments behind you on this? JD: I think everyone s on board. We re all so resourcestrapped throughout the county and we want to be able to devote those resources to putting people in County Jail who really need to be there. JG: Would first-time misdemeanor DUI s be included in the eligible population? JD: No, DUI s will not be eligible. We ve all seen too many individuals devastated by this easily-avoidable crime. JG: Any other new programs? JD: Yes, we have a new truancy program. I think it s one of only two new programs in the county and it now has the support of all five supervisors. I believe it is one of the most cost-effective ways to increase crime prevention. The [correlation] we see between incarceration and failure to graduate from high school is staggering. If the district attorney s office can be a window into their home and figure out what services they need, we can made a dent in that and make a difference for those children who aren t going to school. I have no interest in prosecuting anybody for truancy, but I have every interest in getting these kids in school and keeping them there. So we re working very closely with superintendents throughout the county, including Bill Cirone and David Cash. We are all on the same page, we are committed to making this program work. September

10 Legal News JG: It s a somewhat unusual role for a district attorney. JD: In terms of the D.A. taking on a social worker type of role? I think that is a necessary element in a new age prosecutor. I think we have to take on crime prevention. My job is to keep Santa Barbara County safe, and if I can prevent a crime from happening, I m doing a better job. Convicting and incarcerating people who commit serious crimes, and keeping those people off the street thereby preventing them from hurting anyone else, is a form of crime prevention, but so is getting kids excited about school and keeping them there. To be the best prosecutor I can be, I have to be successful at both. I have also instigated a new volunteer attorney program, calling on former D.A.s to assist with upcoming trials and training of current D.A.s. I ve also expanded our existing volunteer program to include an extern program for Bar admittees who can t find jobs but have a passion for the work. We give them cases under the supervision of a seasoned D.A. While they are here they are able to relieve the burden on my misdemeanor deputies, whose caseloads have historically been one of the largest in the state. More recently we have focused on identifying and prosecuting mandated reporters who fail to report elder and child abuse or neglect. The Sandusky case has made people more aware of just how important this is. Additionally, I co-authored Op-Ed pieces on both of these subjects and placed them on our new website. My office is also available to offer training in this and many other areas relating to crime prevention. JG: Are you facing budget issues of the same magnitude as the civil courts? JD: No, not of the same magnitude. We saw this coming, and it s projected to be even worse in Unfortunately, some of my attorneys and other members of my staff had to take a cut in pay this year, but I ve never had to fire anyone because of this and I will do everything in my power not to reach that point. JG: Do you miss trial work? JD: Not yet, which surprises me, because I loved trying cases. But I do stay actively involved with my deputies cases and I m hoping, perhaps in my second term, to try a couple of cases to help keep me sharp and fresh. JG: Do you think being a prosecutor gives you a particular insight into human nature? You see things that most people don t. JD: I think it has to, sort of in the same way as being an ER doctor. I ve seen a lot of sadness. I ve seen people during their worst moments. These experiences have given me a certain depth of awareness and have inspired my passion to work as hard as I can for [crime victims and their loved ones] because in the end, all we can hope to give them is some sense of justice. Still, it always breaks my heart. And my experience might make me tend to see the criminal element in a certain situation faster than others. You can t do this for approaching 23 years and remain unscathed. If I don t workout, I start to feel the stress. JG: What about the idea that under the right pressures and circumstances anyone could be a criminal, which was one of the major themes of Les Miserables? I ask partly because it s an interesting philosophical question, and partly because it must inevitably influences how you and your staff determine what cases to prosecute and what penalties to ask for. JD: I believe otherwise good people can be driven to commit terrible crimes. I ve prosecuted some of those people, and a couple of them are serving life sentences. If you asked me is this person a good person? I would say this person is probably a good person, but they committed a horrendous crime which requires a just punishment. Still, it is fair to ask had they not been raised the way they were, had they not experienced terrible crimes themselves, had they not been faced with those extraordinary choices in that moment, would they have committed that crime? The minute you stop asking yourself those questions, and feeling the effects of the ramifications of your decisions, is the moment you need to get out of this business. Cercone and Wedel, continued from page 6 craftsman of the law, the new and expanded edition should be essential part of every judge s library. Opinion Writing is now available from major booksellers and from its publisher, Carolina Academic Press. Judge Aldisert s other books include Judicial Process: Text, Materials and Cases; Logic for Lawyers: A Guide to Clear Legal Thinking; Winning on Appeal: Better Briefs and Oral Argument; Road to the Robes: A Federal Judge Recollects Young and Early Times; and A Judge s Advice: 50 Years on the Bench. Kristina Katz Cercone (J.D., Harvard Law School, 2011) and Collin Wedel (J.D., Stanford Law School, 2011) are currently serving as law clerks to Judge Aldisert on the U.S. Court of Appeals for the Third Circuit. At the close of their clerkships, Kristina will join the Washington, D.C., office of Covington & Burling LLP, and Collin will join the Los Angeles office of Sidley Austin LLP. 10 Santa Barbara Lawyer

11 Your path. 2nd Annual B2B Series presented by Montecito Bank & Trust October 9 November 1 November 7 Keynote: Your Blueprint for a Healthy Team 5:00 7:30 p.m. Ventura, CA NEW LOCATION! Speaker: John Rodriguez, Principal Consultant, The Table Group, Inc. Workshop: Discover a Smarter, Stronger Team 7:30 a.m. 12:00 p.m. Santa Barbara, CA Facilitated by: John Rodriguez Keynote: Preparing Your Business for the Future 5:00 7:30 p.m. Santa Barbara, CA Speaker: Kyle Enger, Founding Partner & Principal, BBI Financial, Inc. Workshop: Diagnose the Financial Health of Your Business 1:00 p.m. 5:00 p.m. Santa Barbara, CA Facilitated by: Kyle Enger Keynote: Thinking Beyond Likes 5:00 7:30 p.m. Santa Barbara, CA Speaker: Matt Hicks, Former Communications Manager, Facebook Workshop: Facebook 101 for Business 1:00 p.m. 5:00 p.m. Santa Barbara, CA Facilitated by: lynda.com authors Lorrie Thomas Ross and Justin Seely To register, go to montecito.com/events. Member FDIC September

12 Criminal Justice Post-Traumatic Stress Spectrum Disorder By Robert Sanger S cience, one of the pre-eminent journals of scientific research, recently published an article on post-traumatic stress disorder and the military. 1 Remarkably, the article reports that the rate of post-traumatic stress disorder suffered by veterans of the Iraq and Afghanistan wars has been much lower than expected. Approximately 30% of Vietnam veterans suffered from PTSD whereas this new study on American military personnel found that 4.3% of troops serving developed PTSD. Among deployed combatants, 7.6% developed PTSD, whereas 1.4% of deployed noncombatants did so. On the other hand, the Pentagon still reports that 13 to 20% of returning veterans will have PTSD. 2 Since the September 11, 2001, World Trade Center disasters, over two and a half million American military personnel have been deployed to Iraq, Afghanistan or both. 3 The actual number of PTSD sufferers from the military sources is staggering, in the hundreds of thousands just from these wars, and many more among the survivors of past wars. Of course, PTSD is not something suffered only by service members. Anyone exposed to a dramatic, life threatening event or series of events can develop symptoms. Add to the military sufferers all the others who have suffered life threatening trauma outside of war in the United States 4 and the National Institute of Mental Health estimates that there are approximately 7.7 million people who currently suffer from PTSD in America. 5 PTSD affects three aspects of a person: actions, perceptions and social experiences. He is persistently mobilized in body and mind for lethal danger. He reacts to things as having a potential for explosive violence. He loses authority over his mental functions, in particular, the reliability of his memory and the trustworthiness of his Robert Sanger perceptions. He develops a persistent expectation of betrayal and exploitation that results in the destruction of his capacity for social trust. 6 McNally summarizes, PTSD sufferers do not merely remember their trauma; they reexperience it as vivid sensory recollections (flashbacks), nightmares, and intrusive thoughts. They feel numb and emotionally disconnected from loved ones, yet also tense, irritable, and hypervigilant as if danger were forever present. 7 PTSD can lead to a myriad of social problems including divorce, alcoholism, chronic depression and psychotic episodes. There is also the potential problem of suicide which has been mounting at an alarming rate among troops in Iraq and Afghanistan. 8 PTSD and the Criminal Justice System People suffering from PTSD often end up involved in the criminal justice system. They may be accused of crimes, be victims of crimes or act out in a way that engenders a mercy booking by law enforcement. The latter occurs when police encounter someone in need of mental health services, but there are no available mental health resources. People with PTSD are among millions of other people Connecting ATTORNEYS PARALEGALS LEGAL STAFF confidential employment placement x 79 E. Daily Drive Suite #249 Camarillo, CA Ventura County Santa Barbara Cell Fax Kathi A. Whalen ~ President Daniel J De Meyer Financial Advisor Edward Jones ranked Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row Visit jdpower.com. 125 E De La Guerra St Ste 101 Santa Barbara, CA Member SIPC 12 Santa Barbara Lawyer

13 Criminal Justice suffering from mental disabilities who end up living on the streets, getting a record of petty crimes and not having anywhere to go for treatment. Of course, military veterans have the Veterans Administration and the VA Hospitals. But, even there, the government has cut back on the PTSD diagnoses, depriving some veterans of needed services. 9 Of course, most people with PTSD do not live on the fringes of society and are able to maintain jobs and family lives that are, or appear to be, in the mainstream. However, the substantial number who do live outside the mainstream are all the more vulnerable to being victimized. On the other hand, people suffering from PTSD often do engage in criminal conduct that is not trivial. Certainly many murders and serious assaults are committed by people suffering from PTSD. Unless the person is floridly psychotic at the time of the crime, PTSD is not likely to be an outright defense. However, it can be a contributive factor in reduction of charges or in mitigation of punishment. Scientists are learning more each day about the effect of trauma on gene expression. It is now known that trauma can have multigenerational effects on the epigentic development of cells. Someone subjected to trauma can actually pass on to future generations a pattern of methylation of the DNA and acetylation of the proteins affecting RNA in a way that can program an infant or an infant s future children. And, subjection to trauma in early years of life can impact the expression of genes in that individual child. On a clinical level, PTSD and trauma more generally, play a significant role in diagnosis. The effects of trauma are much more pervasive than was once thought. As a result, PTSD and trauma have to be considered as differential diagnoses. For instance, anti-social personality disorder (APD) often appears as a possible diagnosis. However, the same criteria that support that diagnosis may be the result of PTSD or recurrent trauma. Legal Culpability and PTSD PTSD affects the ability of a person to make rational decisions and form mental states. It is not an excuse, it is a psychological reality, and is increasingly understood to be a physical fact. To the extent that PTSD has an effect on the ability of a person to make rational decisions, it is relevant to the inquiry about mens rea. In other words, to hold a person responsible for criminal behavior, we need to make a determination as to what she or he intended when doing the act. Furthermore, PTSD is involuntary. Unlike voluntary intoxication, someone suffering from PTSD generally did not choose to impair her or his ability to make a rational decision. A person serving in the military chose to serve her or his country, not to be a victim of trauma. Certainly, a person who was physically abused as a child did not choose that trauma. Since PTSD affects the ability to rationally intend to do an act, it is considered by the criminal law in three ways. First, PTSD could be part of a basis for an insanity defense. This would only apply in extreme cases where the PTSD led to a psychotic break. In California, the standard for insanity involves a mental condition that results in a person not knowing right from wrong or not knowing the nature and consequences of his or her acts. 10 It is a cognitive test. Therefore, PTSD has to constitute a sufficient mental disease or defect that it impairs the person s cognition. Second, PTSD can diminish the intent of an actor such that it defeats specific intent. A person suffering from PTSD may not form the intent to premeditate or deliberate or harbor malice aforethought, so his PTSD could reduce first degree murder to second degree, or second degree murder to manslaughter. Third, PTSD may be a significant factor in sentencing decisions. Judges in non-capital cases can take into account the actual facts of a history of trauma on the need for punishment. Santa Barbara has partially institutionalized this concern by the creation of Veteran s Court. In addition, in capital cases, PTSD can be profoundly explanatory of a proclivity to violence, and therefore, be highly relevant to whether or not to impose the death penalty. Conclusion There have been some strides made in the prevention and treatment of PTSD. For instance, the approach of the military has been to better prepare service members for the inevitable experiences of death and violence. Psychologists and institutions have become more adept at identifying the symptoms of PTSD and treating them. Nevertheless, we live in a society where PTSD will occur whether by war, accident or victimization. People at all levels of the criminal justice system have to accept PTSD for what it is and, although they can encourage treatment, they also have to understand the real effect on sufferers on the level of action, perception and social experience. Robert Sanger is a Certified Criminal Law Specialist and has been a criminal defense lawyer for over 38 years. He is a partner in the firm of Sanger Swysen & Dunkle. Mr. Sanger is Vice- President of California Attorneys for Criminal Justice (CACJ) and is the Co-Chair of the CACJ Death Penalty Committee as well as a Director of Death Penalty Focus and a Member of the ABA Criminal Justice Sentencing Committee and the NACDL Death Penalty Committee. Mr. Sanger is also a Member of the American Association for the Advancement of Science (AAAS). September

14 Criminal Justice Endnotes 1 Richard J. McNally, Are We Winning the War Against Post-traumatic Stress Disorder? Science 18 May 2012: Vol. 336 no pp Kevin Freking, Panel Calls For Annual PTSD Screening, Associated Press, July 13, ,333,972 as of a year ago, according to ABC News. Luis Martinez and Amy Bingham, U.S. Veterans: By the Numbers, ABC World News November 11, The AP puts the number currently at 2.6 million. See, Panel Calls For Annual PTSD Screening, Id. 4 This is not to be insensitive, for instance, to the millions of civilians, including children, who live in U.S. war zones, such as Pakistan, Iraq or Afghanistan. 5 The Numbers Count: Mental Disorders in America, National Institutes of Health, available at: health/publications/the-numbers-count-mental-disorders-inamerica/index.shtml#ptsd 6 In the case of PTSD incurred as a result of war, the extent to which the nature of the war violates some of the basis principles of honor can dramatically increase the PTSD aftermath. See Shay, Jonathan. (1994). Achilles and Vietnam. New York: Scribner. Similarly, the extent to which the danger perceived by those in non-war situations seems to be the result of randomness or unfairness, the effects will be exacerbated. 7 McNally, supra, note 1. 8 During the first half of this year, there were 154 suicides in 155 days among active-duty troops. Suicides are surging among US troops, Pentagon statistics show, Associated Press, June 8, There is an effort to re-examine the re-evaluations. Hal Bernton, Army to Stop Using Forensic Psychiatrists to Evaluate Soldiers Diagnosed with PTSD, Seattle Times, July 31, Penal Code Section 25(b). Echoes of War: The Combat Veteran in California Criminal Court This program covers the history of combat trauma, its ties to criminal behavior, and how Veterans Treatment Courts embody the lessons learned to better care for this generation of returning troops (i.e., Iraq and Afghanistan veterans) while better protecting public safety. Speaker: Brock Hunter, Attorney and Veterans Advocate, is co-author and editor of The Attorney s Guide to Defending Veterans in Criminal Court, and is from Minneapolis, Minnesota. Date: Thursday, November 15, 2012 Time: 5 p.m. to 6:30 p.m. Where: Jury Assembly Building, Santa Barbara Superior Court, 1108 Santa Barbara Street, Santa Barbara, CA MCLE credit available: 1.5 hours of substance abuse. To register or for more information, please contact Betty Jeppesen, SFSB_SBLaywers_Inskeep 7/21/10 10:13 AM Page 1 Jerry Inskeep died in This fall, he will send local students off to college. J. Jerry Inskeep, Jr was an adventurer and a committed and caring philanthropist. He and his wife Jackie started a fund with the Scholarship Foundation to invest in students from their community. When Jerry passed away he left a $4 million bequest from his trust to the Inskeep Scholarship Fund. We salute Jerry Inskeep for his outstanding dedication to providing opportunities for deserving students. WHAT LEGACY WILL YOU LEAVE? You or your clients can establish a scholarship fund now or for the future. Contact Colette Hadley, Executive Director at (805) or Scholarship Foundation of Santa Barbara 14 Santa Barbara Lawyer

15 McIvers&Slater_7.5x4.5_2011 5/4/11 3:52 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers Hon. James M. Slater Judge of the Superior Court, Ret. Excellence in Dispute Resolution Business Disputes Real Estate Elder Abuse Professional Liability Medical Malpractice Insurance & Bad Faith Employment & Wrongful Termination Construction Contract & Defect Personal Injury & Wrongful Death (805) September

16 Legal News Effective Direct Examination By David K. Hughes Trial lawyers agree that the three most excruciating sounds any person can experience are fingernails on a blackboard, a metal rake on a concrete sidewalk and poor direct examination at trial. For those of us past our school years, the first sound is a distant memory. The second sound can generally be avoided by astute geographical positioning. Alas, we trial lawyers, arbitrators, and judges must daily endure the third assault on our auditory senses. Trials are won or lost on direct examination. Despite the glamour attached to cross-examination, effective presentation of evidence through direct examination of witnesses produces the facts necessary to persuade the trier of fact. The most common errors found in direct examination are not surprising. The question is compound, too lengthy, confusing, leading or irrelevant. An example occurred in a recent Superior Court case where, due to the ineptness of the direct examination, the attorney s client could not understand many of the questions being asked by his own attorney. That example should be an aberration rather than a routine event in our trial courts. To avoid such an ineffective examination, I suggest the following principles and practical rules: A. Principles of Direct Examination 1. Direct examination must cover all elements of the proof of your case. 2. Direct examination must be shaped by the theme of your case. 3. Direct examination must convey the impression that you are in control of the case. 4. Direct examination must be believable. 5. Direct examination cannot be boring. B. Practical Rules for Direct Examination 1. Plan your direct examination. a. A 1978 survey of more than 5,000 jurors in Los Angeles found the two least desirable traits in trial lawyers were lack of preparation and unnecessary theatrics. b. Every question must support your theme. 2. Keep questions short, simple, clear and direct. a. Overly long questions slow the flow of information and put the jury to sleep. b. The goal should always be simplicity. 3. Carefully consider the words used in your questions. a. Understand the power and effect of language. For example, it is more persuasive for a plaintiff s attorney to refer to a car crash than an automobile accident. b. Avoid legalese and fancy words. Eschew words like eschew. 4. Give consideration to the kind or form of the question to be asked. a. On direct examination, there are occasions when it is permissible to ask leading questions. The form of the question can be open-ended or closed, or can ask for a narrative response. b. Although leading questions are allowed for preliminary matters, and at times to aid confused witnesses, limit their use in direct examination. Leading questions diminish the evidence and prevent the character of the witness from emerging. It is important that the jury hears testimony from a witnesses mouth and not yours. Use leading questions sparingly to vary the pace and rhythm, and only when absolutely necessary, such as refreshing a recollection. c. The right questions depend on the witness. The better the witness, the less you should interfere by, e.g., asking closed-ended questions. On the other hand, less impressive witnesses need more control. d. Ask questions that validate your witness (and your case). One of the best ways to do that is to say: Tell the jury in your own words 5. Think of direct examination as a conversation. Consider the cocktail party example: When people meet for the first time, what are the most common questions? What do you do, where do you work, where did you go to school, are you married, etc. One does not generally hear compound, vague and ambiguous questions at a cocktail party. 6. Prepare the witness. a. Review and discuss the expected testimony of every witness you plan to call at trial. Direct examination is not a time for exploration. Continued on page Santa Barbara Lawyer

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19 Legal News Hughes, continued from page 16 b. Prepare the witness yourself rather than relying on another attorney or paralegal. c. Familiarize the witness with the proceedings and the courtroom. Reduce the amount of surprise or uncertainty for each witness. d. Go over questions you will be asking in detail with the witness. You may even provide the witness with a written outline. Tell the witness that if asked on cross-examination whether they have spoken with you, they should tell the truth. e. If the witness has answered interrogatories or given deposition testimony, be sure the witness reviews those documents. f. Tell the witness to dress appropriately for the courtroom. g. Remind the witness to occasionally look at the jury when answering questions. h. Remind the witness to always tell the truth. i. Prepare the witness for cross-examination. (1) Always do a question and answer session with the witness, rigorously going over and repeating every question and line of questioning that may come up in cross. (2) Your goal is to have your witness say after the trial that no question was asked in cross that had not been gone over in practice. 7. Anticipate evidentiary objections and problems with the witness. a. Review the questions you intend to ask for possible evidentiary objections. b. If you are going to introduce documents, practice that introduction with the witness. 8. Organize your direct examination. a. First, spend sufficient time introducing the witness to the jury. Remember that many witnesses are extremely nervous and their credibility is important. Ask questions to allow the jury to get to know the witness. b. Follow the principle of primacy and recency. What people hear first and last has a strong bearing on what they remember and believe. Once you have introduced the witness: (1) Start strong with a question that goes to the heart of your case. (2) Choose the organization format that best presents facts necessary to meet your burden. Organization can be chronological, by logical or topical organization, or a combination of both. (3) End your examination on a high note, with a point that highlights the theme of your case and will be difficult to attack on cross-examination. 9. Placement of witnesses. a. Following the principle of primacy and recency, start and end your case with your two strongest witnesses. Hide your weakest witness in the middle. 10. Prepare for redirect. a. If you have thoroughly prepared your case and the witness, you will be able to predict the scope of crossexamination. You can then outline and prepare the witness for your redirect examination. b. As a general rule, never save a critical question for redirect. If the witness is not cross-examined, or if the scope of cross does not permit it, you will be foreclosed from asking that question. It is not worth the risk. c. Because redirect is the end of your direct examination of a particular witness, and because of the principle of recency, it is important that the redirect be strong. This requires thought and preparation. If the redirect is only spent on rehabilitating the witness, then your redirect will appear weak and the jury will view your case in a defensive posture. 11. Show respect and concern for the witness. First, it is common courtesy. Moreover, jurors are predisposed to believe whom they like and, as I have personally written in these pages, the credibility of the trial attorney is a crucial determinant in the eventual outcome of the case. 12. Always consider bringing out harmful information during direct examination. a. In nearly every trial there is information damaging to your case. Always consider whether it will be more helpful if the jury hears it first during your direct examination, rather than through cross-examination or your opponent s witnesses. b. There is no iron clad rule. You should consider the credibility of the witness, the nature of the information and whether you have a satisfactory explanation. When in doubt, err on the side of discussing damaging information during direct examination. c. When you bring out damaging evidence in direct examination, it is always best to tuck it into the middle of the examination, following the principles of primacy and recency. Continued on page 22 September

20 Legal News Is There Such a Thing as a Bulletproof Fee Agreement? An Introduction to Attorney Fee Agreements By Benjamin Bycel No, there is no such thing as a bulletproof fee agreement. Nothing can guarantee your attorney-client fee agreement will be enforced in a dispute with a disgruntled client. This does not mean, however, that you cannot take important steps to protect the validity of your fee agreement. There are three basic principles of legal drafting that will increase the probability that an attorney-client fee agreement will be found valid. First, ensure that all legally required provisions for fee agreements are included in the document. Second, keeping in mind fee agreements are interpreted against the lawyer-drafter, use simple and clear language not legalisms in the agreement. Third, be sure you cover every detail. A short agreement that omits potentially problematic areas does neither you, nor the client, a favor. The California Courts have found that clarity is imperative in attorney fee agreements. The agreements must be designed to ensure that clients understand them and to protect clients against unfairness. (Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1037.) Failure of an attorney to comply with any of the statutory requirements makes the agreement voidable at the client s option. If this occurs, the attorney is entitled to collect only a reasonable fee. (Business and Professions Code sections 6147(b), 6148; Gutierrez v. Girardi (2011) 194 Cal.4th 925, 932.) Types of Attorney-Client Fees Agreements There are five basic types of attorney-client fee agreements: Hourly charges by an attorney These are the most commonly used type of fee agreements. (See org/careercounsel/billable.htm for a discussion of changing views of both clients and attorneys of hourly charges.) Contingent Fee Agreements - This article will not discuss contingency fee agreements. (See Business and Professions Code section 6147 for the legal requirements.) Fixed Fee The client pays a fixed, specified fee for legal services. Only attorneys experienced in an area of law, who understands the risks involved with setting a fixed fee, should employ this type of agreement. Classic Retainer These are retainer agreements where the client pays the attorney solely to secure the availability of the attorney for a period of time. The word retainer should only be used when the lawyer is being retained to secure her availability for a specific period of time. The payment is compensation to the lawyer for lost opportunities to represent other clients. It is not a deposit against future work. (Matter of Fonte (Rev. Dep. 1994) 2 Cal. State Bar Ct. Rptr. 752, 757). In a classic retainer agreement the fees are paid up front, and immediately belong to the lawyer. It is critical that you explain to the client that the legal fees are nonrefundable. Hybrid Fee Agreements These agreements are combinations of hourly, fixed, contingent, and true retainer fees. If this type of arrangement is employed, I recommend using hypothetical examples with actual numbers to illustrate how the fee payout will work. 1 Laws and Rules Relating to Fee Agreements The State Bar Act The State Bar Act (SBA), Business & Professional Code article 8.5 sets out the governing rules for attorney fee agreements. Every lawyer should read this section before preparing a fee agreement or making changes to an existing agreement because of the explicit warning in 6148 C: Failure to comply with any provision of this section renders the agreement voidable at the option of the client. And the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee. Furthermore, Business and Professions Code section 6148(a) requires all fee agreements be in writing if, it is reasonably foreseeable that the total expense to the client, including attorney fees, will exceed one thousand dollars ($1,000). Section 6148(a) mandates that attorney-client fee agreements contain the following: The basis for the compensation (i.e. hourly flat, etc.); the general nature of the services to be provided; and the respective responsibilities of the attorney and the client as to the performance of the contract. Section 6148(b) sets forth specific requirements on how attorneys can bill their clients. For example, Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of these attorney s fees and costs. There are exceptions to the re- 20 Santa Barbara Lawyer

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