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1 Contra Costa LAWYER Volume 26, Number 4 July 2013 Criminal Law The Effects of Budget Cuts on the Criminal Courts Ethics in Defense Counsel Member Survey Results CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 1

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5 2013 BOARD OF DIRECTORS Jay Chafetz President Stephen Steinberg President-Elect Candice Stoddard Secretary Nick Casper Treasurer Audrey Gee Ex Officio Richard Alexander Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde CCCBA EXECUTIVE DIRECTOR Lisa Reep CCCBA main office Jennifer Comages Membership Coordinator Emily Day Systems Administrator and Fee Arbitration Coordinator Dawnell Blaylock Communications Coordinator Mary Carey Alison Chandler Elva Harding Peter Hass Reneé Livingston James Wu CONTRA COSTA LAWYER CO-EDITORS EDITORIAL BOARD Harvey Sohnen Nicole Mills BOARD LIAISON Candice Stoddard COURT LIAISON Kiri Torre PRINTING Steven s Printing PHOTOGRAPHER Moya Fotografx Theresa Hurley Associate Executive Director Barbara Arsedo LRIS Coordinator Mark Ericsson Matthew Guichard Elva Harding Patricia Kelly Craig Nevin David Pearson Stephen Steinberg Marlene Weinstein James Wu Contra Costa LAWYER Volume 26 Number 4 July 2013 FEATURES THE EFFECTS OF BUDGET CUTS ON THE CRIMINAL COURTS by Hon. John W. Kennedy DEPARTMENTS The official publication of the 6 INSIDE by Amanda Bevins and Mary P. Carey B A R THE LAW OF UNINTENDED CONSEQUENCES by Mark A. Peterson ETHICS IN DEFENSE COUNSEL by Carol M. Langford A S S O C I A T I O N THE LAST STEAK 15 by Justice James Marchiano CCCBA MEMBER SURVEY RESULTS by Stephen Steinberg MEDICAL BENEFIT OPTIONS FOR CCCBA MEMBERS by Rich Suess PRESIDENT S MESSAGE by Jay Chafetz The Contra Costa Lawyer (ISSN ) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA The Lawyer welcomes and encourages articles and letters from readers. Please send them to The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. 20 CENTER Food From the Bar Comedy Night Criminal Law Section MCLE Luncheon Employment Law Section MCLE Breakfast Gala Reception Announcement 28 RESTAURANT REVIEW by Gary Lepper 30 INNS OF COURT by Matthew Talbot 34 COFFEE TALK What do you think about the government collecting your phone and internet data? 35 CALENDAR 38 CLASSIFIEDS CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 5

6 inside Amanda Bevins Mary P. Carey BRUISING AND DECUBITUS OH, THE STORIES THEY COULD TELL The Criminal Law and ADR Sections are pleased to present: Tara Godoy, Certified Forensic Nurse University Park Legal Nurse Consulting Join us at the MCLE Spectacular on November 22nd for an in-depth program examining the factual and legal issues presented by blunt force and pressure injuries. Whether your practice area is criminal law, personal injury, elder law, or if you simply want to satisfy your CSI addiction, you are bound to walk away with important insights designed to enhance your client advocacy. T his edition of the magazine is devoted to criminal law in Contra Costa County. My co-editor, Mary P. Carey, and I decided that despite the doom and gloom nature of the subject, the edition should focus on how the economic downturn has affected the criminal justice system in Contra Costa County. Although there has been a slight uptick in the economy, the deep budget cuts, furloughs, realignment and court closures have had a profound impact in our county on the way the law is meted out, prosecuted and defended on a macro and micro level. To that end, we have solicited articles from the top down in the county criminal justice system. Judge John Kennedy, a judge who has been in the trenches of realignment, court closures and issues concerning the countywide jury panels, will present his take on the effect of the economic downturn on the Contra Costa Superior Court. Mark Peterson, the Contra Costa County District Attorney, will weigh in on how the economy and budget cuts have affected them and the ability to effectively and zealously prosecute offenses in Contra Costa County. Finally, Carol Langford, a Walnut Creek lawyer who specializes in representing lawyers before the State Bar, will weigh in on ethical issues that arise in the public sector in effectively representing indigent defendants in tight economic times. The downed economy has not missed us private practitioners either. The accused have less money to hire counsel and, once hired, less money to do the things necessary for us to effectively represent them, raising additional ethical dilemmas. Bread and Butter Although I would love from a perspective of professional enrichment and intellectual challenge to only handle homicides or other high-level cases, the reality of private practice is that for every privately retained homicide case, we represent dozens of DUIs, misdemeanor batteries and a lot of juvenile waywardness. Those cases are the bread and butter of the private practice. At times, these cases can be very rewarding, for instance, helping a client get the substance abuse and mental health treatment they need or steering a young client back on track to a healthy and productive adulthood. But these cases clearly don t have the mind-bending intellectual challenge of a high-stakes case. In general, these cases are a lot less expensive for clients and do not require a lot of investigation or expert testimony. Most middle-class individuals with a moderate income can, with some grimacing, afford to hire private counsel for these bread and butter cases. When the economy bottomed out in 2009, however, a large part of those cases dried up and the grimaces became groans when cost of representation was discussed. Rather than opting to have a private lawyer help them through the process, those arrested, for example, for a DUI will often handle their case in pro per, and parents will opt to use the public defender, an option always available to a minor in juvenile cases. Obviously, this has all impacted the bottom line of the private practitioner. Ethical Dilemma - A Case You Should Refuse? Another crucial issue has arisen in a tight economy on the higher-stakes cases where a client really doesn t have the money to hire private counsel but is not eligible for the excellent, no-cost representation of the public defender. The question is, should you take a case when the clients don t have enough money for you to competently represent them? They may have enough 6 JULY 2013

7 money for you to make court appearances and read the discovery, but not enough to hire experts, do investigation or the motion work that is essential to a case in the early stages of representation. Or should you take a case when you know the client won t have enough money to pay for trial, if necessary? For example, let s say a middleaged woman comes in with a very interesting case, perhaps vehicular manslaughter, where she was under the influence of medications prescribed for depression. The deceased was a teenager on a skateboard out of the crosswalk and under the influence of marijuana. You meet with her and find out that she was never told by her doctor not to operate or even to use caution when operating a vehicle. You feel for her and bond with her on a deep level. You want to represent her. You think you could do a great job with her case, and have handled many similar cases. But she really doesn t have enough money to do all the things necessary for you to competently represent her. You know that you will need an investigator to take statements and ferret out witnesses. You know that you will need a toxicologist and accident reconstructionist even for a preliminary hearing. You realize that it is the type of case that may David B. Pastor CCCBA MeMBer SinCe 1977 have to be tried. Do you take the case with the expectation of dumping it on the public defender if it is not resolved before preliminary hearing or after preliminary hearing if the client is held to answer? Do you take the case anyway knowing that she really can t afford you? Certainly you would love to help her, but can you afford to devote a lot of time to a case you know that you will lose money on? Most of us are bleeding hearts, but we do need to make money; we have kids to raise and mortgages to pay. Can she afford to pay for experts and an investigator? If not, are we really doing clients a favor by taking the case? But if you don t, what are their options? They may have too much money to be eligible for the public defender. This is a dilemma that I face as a private practitioner now more than ever. I am a bleeding heart and know that I can never dump a client. When faced with this dilemma, I ve had to pass up interesting cases with healthy initial retainers because the clients don t have enough money for me to effectively represent them. The Future What I have realized, not only as a criminal defense attorney in private practice but as a partner in ConServAtorShiPS ProBAteS CriMinAl DefenSe Free Consultation Law Offices of DAviD B. PAStor Boulevard Way, Suite 212 Walnut Creek, CA a mid-size law firm, is that nothing will ever be the same. The days of the bloated law firms charging huge fees and associates making starting salaries of $150,000 are over. The days of the shareholder retreats to Pebble Beach are over. The days of complacency over whether the phone will keep ringing are over. The days of being too proud to advertise are over. The days of the bread and butter cases streaming in and sometimes even supplementing your ability to take high-stake cases at lower fees are over. We all have to roll up our sleeves. Work a little harder. Market ourselves. And learn to make the hard decisions to ensure that we continue to practice at a high level. Most of all, we need to remember that although being a member of the criminal justice system is our chosen career and how we pay our bills, unless we do what we can to practice effectively, ethically and respect the other parts of the system, the system will fail. s Amanda Bevins is a shareholder at Gagen, McCoy, McMahon, Koss, Markowitz & Raines in Danville. She has been practicing criminal defense and juvenile defense law for the past 18 years in Contra Costa, Alameda, Solano and Napa counties and is on the board of directors of the Contra Costa County Bar Association and on the Napa County Juvenile Justice Commission. Amanda is also a member of California Attorneys for Criminal Justice, Women Defenders, Napa County Gang and Youth Violence Committee, and the National Association of Criminal Defense Attorneys. Mary P. Carey is an attorney in Walnut Creek specializing in criminal law. She is also on the CCCBA s board of directors. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 7

8 president s message As we approach midyear, it seems a good time to reflect on where our court system has been and where it is going. In part, I am merely reporting on a Fast Track Bench/Bar meeting that occurred a couple of weeks ago, but many more attorneys and their clients are affected by the current status of the court system than those that attended this meeting, so I will accept the risk of repeating information that some of you already know. After the last round of budget cuts, Contra County Superior Court let go most of its commissioners. The court also stopped supplying court reporters for most civil proceedings. What was a staff of approximately 450 employees several years ago has been reduced to approximately 300 people. Roger F. Allen Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA Jay Chafetz CCCBA Board President Northern California Mediator / Arbitrator 18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice Training includes Mediation Course at Pepperdine University 1995 Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel Settlement Commissioner, Alameda and Contra Costa Counties Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect The court asked for help, and you, our membership, responded in two significant ways: by volunteering as judges pro tem and as discovery facilitators. The preliminary results provided by Judge Goode at our recent meeting showed that 19 people have served as judges pro tem on 51 days this year. This includes eight individuals who had not served in this role in our county before. They presided over hearings in more than 1,000 probate, unlawful detainer, small claims court and traffic matters. Ninety-four discovery disputes have been assigned to discovery facilitators. A number of discovery disputes have been resolved through that process. Very few discovery motions have shown up on the court s calendars. Our civil fast track judges are very appreciative of your help. Even so, the administration of justice is slowing. Fewer hours are available for trial per week. One judge, for instance, recently was only able to hold trials for as little as three half-days per week. Judges are hearing matters they did not have to hear before, such as ex-parte applications and name change petitions. Trial dates are being set about a year in advance. Law and motion calendars are long. We are working with an imperfect system. None of us are happy about it and there is no assurance that things will get better any time soon, although we all hope that the era of drastic yearly cuts is at an end. But the cooperation between the Bar and the courts is to be lauded. On behalf of the courts and the Bar Association, I want to express deep thanks to all of our volunteers. s 8 JULY 2013

9 The Effects of the Budgets Cuts on the Criminal Courts by Hon. John W. Kennedy W e have all read in newspapers, heard on radio and TV, and been bombarded by electronic media with articles about California s budget challenges and the resulting impacts on all types of state services. The California Judiciary the third branch of government has absorbed its share of these cuts. But what does it mean in real terms to criminal practitioners in Contra Costa County? As a result of having approximately one-third of our operating budget cut over the last three years, we have lost one-third of our staff, witnessed the retirements of five of our eight Commissioners, closed our Concord courthouse and reduced our Walnut Creek courthouse to handling only traffic cases, closed our Family and Juvenile courtrooms in Pittsburg and our Juvenile Court in Richmond, and consolidated most of these operations into Martinez. Our clerk s office filing hours have been curtailed to 8:30 am to 1 pm, so lawyers and litigants who are racing to meet deadlines have almost one-half of a day less time to get to the clerk s window to file. Lines are longer, and documents pile up in backlogs because there simply is not enough staff to process them. Case files when they can be found for a court appearance are often missing crucial documents. Domestic violence victims wait longer for restraining orders. Family law litigants and families in Juvenile Court must travel to Martinez for each court appearance rather than being able to appear in their local branch courts. Civil and criminal cases are no longer heard in Walnut Creek, so those cases must all be heard in Martinez now. People are severely impacted by these reductions in service, and access to justice is made more difficult. The budget cuts have hit our criminal courts as well. With the Walnut Creek courthouse no longer hearing criminal cases, we have had to absorb their very heavy misdemeanor caseload into Martinez. The Martinez criminal trial departments must now try all of the Walnut Creek misdemeanor trials as well as the bulk of the felony trials from throughout the county. In order to share this load and more fully effectuate the goals of court unification, we have begun trying felony jury trials in Richmond and Pittsburg. We have also added a variety of supplemental calendars to take up the work formerly done by the Walnut Creek judges and the commissioners. Our calendar departments are nearly bursting at the seams to accommodate the added workload. Judge William Kolin is managing the combined workload of both the Walnut Creek calendar department and the Mt. Diablo calendar department in Martinez. Judge Clare Maier continues to juggle the vast and ever-increasing array of case management responsibilities in every felony from indictment (or information) to trial setting. She is now setting trials in Martinez, Richmond and Pittsburg. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 9

10 Criminal Courts, cont. from page 9 Judge John Laettner has taken on the eclectic combination of our collaborative courts, including the Behavioral Health Court, Prop. 36/ FADS/Drug Court, Elder Court, the Domestic Violence calendar, and revocations of probation, mandatory supervision and post-release community supervision. Judge Laettner also decides substantive felony motions in his spare time. The felony trial departments have added four motions calendars to their regular trial calendars on a rotating basis. We now hear the motions from Walnut Creek misdemeanor cases on Monday and Friday afternoons. On Friday mornings, another department handles the evidentiary hearings for PC motions to suppress evidence in felony cases. The writs and other extraordinary proceedings are decided on paper or in speciallydesignated hearings in a fourth department. Our branch courts have had to absorb the commissioners non-traffic caseloads as well as felony trials. They have added unlawful detainer and small claims calendars to their already heavy caseloads. Because we closed our Walnut Creek courthouse to jury trials, we had to reconfigure our county s jury panels. Statutory and case law require that each resident have an equal chance of being summoned for jury duty and that our jury panels reflect a fair cross-section of the county s demographics. After trying a modified local jury panel plan and seeking input from our justice partners and the public, we decided to opt for countywide jury panels for all of our courthouses. We find that this approach provides maximum flexibility in moving judges, cases and jurors to the courthouses where the cases are to be tried. The budget reductions described above coincided with the governor s Realignment Legislation, which altered the location in which many sentences are served and shifted responsibility for supervision of many former state parolees to the county s Probation Office. With those shifts, the court received added responsibilities for revocations of post-release community supervision and mandatory supervision. Effective July 1, 2013, the court will also take on parole revocation proceedings for many more state prison parolees. We do not yet know the impact these added responsibilities will have on our workload, but we anticipate it will require that we hire a part-time hearing officer to adjudicate parole revocations. In short, from the perspective of the bench, the economic recession has very significantly increased our caseloads, added calendars and responsibilities previously handled by our commissioners, and reduced the support staff who enable us to function effectively. We can see the strain this puts on our courtroom clerks, court reporters, bailiffs, clerical staff and administration. We are blessed with very talented and hard-working colleagues and staff, but this pace cannot be maintained indefinitely. We urgently need to have funding restored if we are to maintain basic services to the public. We look forward to the day when we will be able to return to optimal staffing levels, hire commissioners, and reopen courthouses so we may more effectively provide equal access to justice. s Hon. John W. Kennedy has been a judge of the Contra Costa Superior Court since JULY 2013

11 The Law of Unintended Consequences How Unintended Consequences Hinder Realignment s Effectiveness by Mark A. Peterson I n the 1960s, the government endorsed widespread use of DDT for the noble cause of controlling insects. But a curious thing happened along the way. The use of these toxic chemicals caused the egg shells of bald eagles and California condors to become so thin that the chicks died. What started out as a seemingly well-intentioned endeavor nearly ended in the complete extinction of an entire species. When the Realignment Legislation went into effect in October 2011, the shift of responsibilities from the state level to the county to alleviate prison over-crowding was hailed as one of the single most significant changes in the history of California s criminal justice system. In reality, realignment could just as fairly been described as a grand experiment whose unintended consequences are only now coming to light. One such unanticipated effect impacts the Domestic Violence Unit of the District Attorney s Office. Before realignment, the Domestic Violence Unit would annually send approximately 30 violent offenders back to prison for one to two-year sentences for parole violations. After realignment, that is no longer an option. In addition to a number of domestic violence offenders being released from prison on non-revocable parole, domestic violence offenders are now released onto Post-Release Community Supervision (PRCS). Because the realignment statutes limit the sanction of custodial confinement in PRCS cases to 180 days (90 days actual custody), this sanction is frequently insufficient for either the offender or the victim to break the cycle of domestic violence. Without parole revocation proceedings, the only way to ensure appropriate punishment of the offender and protection of the victim is for the District Attorney s Office to file new cases. Thirty more cases filed means the dockets are further burdened, cases move even slower through the courts and the additional costs are passed on to taxpayers. Since domestic violence is a pattern crime with a high degree of recidivism, these additional filings will only increase as more and more violent offenders are released into our community. Realignment has functionally removed parole revocation as an efficient mechanism for curbing recidivist batterers. Realignment has also resulted in the Office of the District Attorney taking responsibility for reviewing and prosecuting PRCS violation hearings. Prior to realignment, these offenders would have been released on parole and any violations would have been handled within the California Department of Corrections and Rehabilitation. The prosecution of PRCS violation hearings constitutes a new burden on the District Attorney s Office, requiring experienced prosecutors who can navigate the still-evolving procedural rules for these different hearings. Realignment similarly had an unanticipated impact on victims rights. Under Marsy s Law, the District Attorney is constitutionally mandated to ensure and uphold the rights of crime victims as articulated in California Constitution, Article 1, Section 28(b) which include, but are not limited to, the right to be notified of case dispositions, the right to be heard, the right to be notified of a change in custody status and the right to restitution. California Constitution, Article 1, Section 28(f)(5) provides that sentences imposed upon criminal wrongdoers shall be carried out in compliance with the courts sentencing orders, and shall not be sub- CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 11

12 Unintended Consequences, cont. from page 11 stantially diminished by early release policies intended to alleviate overcrowding in custodial facilities. The legislative branch shall ensure sufficient funding to adequately house inmates for the full terms of their sentences Unfortunately, under realignment, Contra Costa County now places approximately 86 percent of 1170(h) defendants on split sentences, meaning that inmates receive less than their full term in custody and instead are placed on mandatory supervision. When Marsy s Law added the public safety bail provision (Article I, Section 28(f)(3)) regarding setting bail or own recognizance release, the protection of the public and the safety was deemed the primary consideration. But under realignment, victims are being pushed to the background. Realignment provides for early release of sentenced criminal offenders as well as those who are in pre-sentence custody without bail and without a hearing. Because Marsy s Law provides that crime victims have a right to be noticed and an opportunity to be heard on matters involving the custody of defendants, the District Attorney s Office Victim Witness Program has an entirely new set of responsibilities with respect to victims of realigned offenders. New strategies are currently being developed to reconcile the clash between victims rights under Marsy s Law and realignment. However, these unintended consequences make it increasingly difficult to accommodate conflicting mandates. The criminal justice system, for better or worse, has a very hard shell, and realignment won t crack that. But what is clear already is that realignment has changed the criminal justice system in ways that were unanticipated. s After 27 years of service as a Deputy District Attorney, Mark A. Peterson was elected to office in Mark was previously elected to the Concord City Council in 1995, and served as Councilmember for 15 years. He was selected as Mayor of the city three times. Mark also serves on the Board of Directors of Kops for Kids and the One Hundred Club. 12 JULY 2013

13 in Defense Counsel by Carol M. Langford I n 2010, at the height of the Great Recession, San Francisco Public Defender Jeff Adachi wrote a proposal to then- Mayor Gavin Newsom requesting a lift on the citywide hiring freeze. We re pretty severely underfunded, Mr. Adachi explained, which left us with a $1.7 million budget gap We ve refused over 300 cases in the past couple of months. 1 Battling a $500 million budget deficit at the time, Mayor Newsom requested a 25 percent cut from every city department head. Mr. Adachi refused, arguing that the Sixth Amendment right to counsel was paramount, and ethically, he could not make cuts that would result in substandard representation. To be fair, from the perspective of a defense attorney, budget cuts are not all bad. Practically speaking, delays caused by backlogged courts can be used by the defense to strategic advantage. When cases take years to go to trial, witnesses forget what they saw, change their minds, or even become locked up themselves. Old paperwork goes missing. Police officers retire or sometimes even become involved in scandal that immediately discredits them. The New York Times recently reported on a murder case that took over five years to go to trial due to the quagmire in which the Bronx court system is currently engulfed. 2 A man was shot to death in a convenience store. The key witness was an off-duty police officer who happened to be present during the armed robbery gone wrong. Three years after the murder took place and before the case went to trial, that off-duty police officer, previously the perfect witness, was disciplined for his involvement in a ticket-fixing ring. At trial, the defense attorney was able to paint him as a liar and the result was a hung jury. However, the effects of budget cuts have caused much more harm than help. Across the country, many public defenders are trying to get the message out that we have nothing left to cut. 3 A Washington, D.C., federal public defender, A.J. Kramer, recently summed up the ethical dilemma these lawyers are facing: A lawyer might decide that they ordinarily in the past would have had an expert work on some aspect of a case and now they re thinking, Is that going to cost me a furlough day if I hire this expert and [cost] everybody else in the office a furlough day? So it really becomes a terrible ethical dilemma. The ethical issues cannot be taken lightly. March of this year marked the 50th anniversary of Gideon v. Wainwright, the Supreme Court ruling that mandated that people facing criminal charges had the right to representation by an attorney, regardless of whether they could afford it. However, in 2013, sequestration at the federal level and budget crises at the state level have seriously chipped away at these Constitutionally-mandated services. Ironically, sometimes efforts to cut costs to public defenders offices have actually ended up costing the government more money. Steven Nolder, a federal public defender in Columbus, Ohio, whose office was facing such severe budget cuts that he actually laid himself off instead of firing others, explained: These are not luxury services that we re providing... because they re mandated, someone has to do it. We either do it, or the panel does. Nolder was referring to a roster of private defense attorneys who are appointed by the court to represent indigent defendants when public defenders are not available. Attorneys on the panel sometimes have less experience and expertise than public defenders and actually end up costing the government more money. Ethically, the budget slashing at public defenders offices all over the country has huge implications. Many offices have cut a lot of attorneys, while the caseloads coming into the offices are not decreasing. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 13

14 Defense Counsel, How can these lawyers meet their ethical duty to provide competent representation? The American Bar Association s Standing Committee on Ethics and Professional Responsibility recently issued Ethical Opinion No The Opinion requires public defenders to keep only manageable caseloads, and to seek relief in court if caseloads rise to a level which compromises the quality of work they are able to deliver to their clients. The Opinion puts an individual ethical obligation on all public defenders. The first step advocated by the Opinion is for individual public defenders with unmanageable caseloads to go to their supervisors for a reduction, then to the head of the office. However, if the office does not adequately address the problem, public defenders are required to seek relief in court. The problem is, the way things usually play out when public defenders reduce their workload, is that the court is forced to hire more private attorneys to represent indigent clients. The services ultimately provided are thus more expensive, further straining the budget issues. Frankly, I cannot see a way out of this very real problem. Giving the poor less than competent representation in a criminal matter cannot be countenanced in a just society, and it violates the ethics rules. Would the State Bar ever discipline a criminal defense lawyer who could not meet his obligations because of budget cuts? If they tried, they d face the wrath of criminal defense lawyers everywhere. But that may be what it takes to cure this blight on the justice system. s 1 cfm?eid= nyregion/justice-denied-bronx- cont. from page 13 court-system-mired-in-delays. WANTED html?pagewanted=all&_r=0 3 Carol M. Langford is a lawyer in Walnut Creek who specializes in defending lawyers before the State Bar and law students in admissions hearings. She is an adjunct at U.C. Berkeley Boalt Hall School of Law in professional responsibility. How does 25 Hours of free MCLe sound? Attention: Lawyers with professional liability coverage through the State Bar of California-sponsored program two valuable new benefits Are now part of this industry- LeAding CoverAge: Meet your MCLE requirements for free! Upon your effective date, you can complete all California Minimum Continuing Legal Education (MCLE) requirements up to 25 hours every three years at no cost. Choose from 650 hours of quality, online MCLE courses. New Data Breach Expenses Endorsement. Data breaches can lead to big expenses for the businesses that maintain the information. Protect your practice with up to $25,000 in data breach coverage. There s NO separate premium charge for this extra coverage. These new member benefits could amount to more than $26,000 in value. And you don t pay a penny more for your coverage! Administered by: Marsh U.S. Consumer, a service of Seabury & Smith, Inc. Insurance Program Management Underwritten by: Arch Insurance Company, a member of the Arch Insurance Group AR Ins. Lic. # CA Ins. Lic. # Will/Estate Contests Conservatorships You handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate. Pedder, Hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955) p f Golden Gate Way, P.O. Box 479 Lafayette, CA AV Martindale-Hubbell Don t have this coverage? New policyholders can also get these great new benefits at no additional cost. To learn more about switching your current professional liability coverage to the State Bar of California-sponsored program, visit... or call d/b/a in CA Seabury & Smith Insurance Program Management (7/2013) Seabury & Smith, Inc JULY 2013 MARSH Calbar PL Ad (7/2013) Black & White, 1/2 PAGE VERTICAL AD LIVE AREA OF W X 7H, NO BLEEDS TRIM AREA OF W X 7H

15 The Last Steak by Justice James Marchiano (Ret.) In previous accounts, Judge Carlton confronted Three Strikes, mental health, legal ethics and incarceration. Now he presides over a contentious civil jury trial. I n Department 47 of the Bray Building, Judge Raymond Carlton reviewed his meticulous notes from Serafina Abada and Edward Abada v. John Chambers, M.D., in preparation for the motion for new trial. Three weeks earlier, Judge Carlton imagined he had been observing Jack London s pugilist Tom King in a different arena; an aging warrior armed with words, not boxing gloves, mentally spent and bodily exhausted. Judge Carlton recently reread London s poignant short story, A Piece of Steak, about a graying, over the hill boxer named Tom King who tried to use his last ounce of experience to vanquish a youthful, strong opponent, to put food on the table for his family, to buy that nourishing piece of steak he so desperately needed before the fight and couldn t buy. The plaintiff s attorney Frank Mc- Cauley was like King, a no-holds brawler, in the twilight of his career, looking for one last victory. McCauley, now a seasoned, paunchy 71 year old, had fought in more civil trials than any other Contra Costa lawyer and needed his last piece of steak. Recent financial times had been hard on Frank McCauley the 2008 financial crisis swallowed up the equity in his home and depleted his 401(k). After leaving a five-lawyer partnership during his tumultuous divorce, he had been in solo practice for a number of years and no longer had a line of credit left to finance cases. Time was running out. McCauley sensed this prize fight in Judge Carlton s courtroom was his last hurrah, a chance to walk away with hands held up in triumph, to grab the brass ring of a potential seven-figure recovery, and to help deserving clients. The case management statement announced a 10 day grueling match. Settlement sessions before JAMS best personal injury mediator could not settle the case. Dr. Chambers would not capitulate. McCauley knew from his 47 years as a lawyer that the most difficult case for a plaintiff to win was a medical negligence trial. The defense won nearly 90 percent of the time, especially before Contra Costa juries. And this time, he was a 9 to 1 underdog facing the best lawyer Youngman & Ericsson, LLP 1981 North Broadway Suite 300 Walnut Creek, CA Tax Lawyers. from the top medical malpractice firm in the East Bay, ranked No. 1 in the heavyweight division and 30 years his junior. Brian Anderson was the doctor s protective insurance company s paladin, traveling to various Bay Area venues where he successfully defensed a string of 10 medical cases in four years. Boalt Hall-educated, Anderson was tutored by his older partners in the craft of defending doctors, divining the meaning of medical records, carefully constructing hypothetical questions understandable to lay people on the standard of care, and scripting an accused doctor in dress and language to transform a poor bedside manner into an engaging personality. Anderson took the art of defense several steps further with effective PowerPoint presentations, digitized records easily retrievable on his laptop and three-dimensional anatom- (925) CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 15

16 The Last Steak, cont. from page 15 ical images that jurors could grasp. He personally trained an entourage of in-house paralegal medical assistants, graphic arts consultants and associates with instant connection to online medical cases and medical books. The firm had easy access to a stable of leading defense experts from Stanford and UCSF medical schools. McCauley was old school, using a trial binder indexed in topical hand-written manila folders, his own highlighted, earmarked deposition summaries. His PDA was his longtime secretary, Joan, who knew how to subpoena witnesses and documents, prepare jury instructions and give him fresh black coffee in the late afternoon. She was a whiz with computer word processing and the latest digital advances. Brian Anderson worked out regularly at the Renaissance Fitness Club to keep his body trim and mind sharp. He cultivated an appealing presence before jurors. Frank Mc- Cauley struggled with high cholesterol, high blood pressure and high anxiety about the fate of Serafina Abada, who needed a win as badly as McCauley did. Two years before the trial, the CCCBA s Lawyer Referral and Information Service sent Edward Abada to McCauley for help with his wife s plight. No one else would take the case. The story was simple with a disastrous ending. Dr. John Chambers, board certified ob-gyn, admitted his patient Serafina Abada, age 58, in good health, to Central Valley Hospital for a routine hysterectomy for a uterus that had developed large polyps. Edward explained that after the uneventful surgery, his wife of 40 years, during post recovery, lost consciousness. She was placed in a long-term convalescent facility in a coma vigil, not comprehending, and in need of 24-hour care. Her eyes were open to the movement of visitors, but without signs of recognition. Imprisoned inside herself, Serafina had no response to external stimuli. Edward and Serafina had been inseparable during their marriage. She had prepared his breakfast every morning at 6 am before he left for work as a truck driver for Federal Express. Now he faithfully stopped by each morning before work to feed his wife and to exercise her arms and hands for muscle therapy and to feel the touch of her soft skin that he knew so well. He returned after work to help feed and bathe his wife, not out of duty, but from the love that flourished with 40 years of memories and the hope she would somehow recover. Dr. Chambers had spent only 10 minutes attempting to explain what might have caused the problem. Edward did not understand The depositions were difficult, like a twisting roller-coaster ride plunging into darkness. the explanation, and Chambers did not return any of Edward s later calls. Although California law capped general damages for pain and suffering at $250,000, the law allowed recovery of the cost of past and future medical care for Serafina, estimated to be over $1 million, well beyond the limits of Edward s health insurance coverage for his wife. To obtain the humane, compassionate care Serafina required, McCauley had to win the case. Edward did not understand the legal nuances of loss of consortium, but McCauley knew it was priceless to him. McCauley investigated the case. He obtained hard copies of the digital medical records and sent them to several consultant medical experts unshackled, retired doctors now willing to testify against members of the profession. The reports came back mixed with criticism of the differential diagnosis. Serafina had suffered an episode of extreme hyponatremia, a severe depletion of her electrolytes, particularly sodium. The confirming lab test was ordered after the operation. The recovery room nurses entries and the progress note of the attending anesthesiologist did not shed much light on the cause. A neurologist s consultation note was inconclusive. Dr. Chambers progress note, with an entry at 7 pm after the procedure, was unusual in its length. It posited several theories for his unconscious patient, and a battery of lab and neurological tests were ordered as well as a spinal tap and liver biopsy. Usually progress notes are short, rarely over a page, but Chambers 16 JULY 2013

17 note was 3 ½ pages long with references to medical journals. The detailed exposition postulated several possibilities, including Reyes Syndrome that attacks the brain and liver and can lead to unconsciousness. McCauley learned from the note that Reyes syndrome is generally found in children, with aspirin involved, and rarely develops in adults. But some of the laboratory data was supportive of the Reyes Syndrome theory in Serafina s case. One of the experts McCauley consulted supported a case against Dr. Chambers care, enough to warrant the filing of a complaint. The depositions were difficult, like a twisting roller-coaster ride plunging into darkness. Several long-tenured Central Valley Hospital nurses testified about their urgent calls to Dr. Chambers cell phone and answering service when the patient remained non-responsive in the post recovery room. Cautious in their answers and protective of Dr. Chambers, they assumed the doctor received their call because his progress note indicated an examination time of time of 7 pm, although none of those who were deposed remembered talking to him. Like good soldiers, they circled the wagons. In an all-day deposition, Dr. Chambers treated McCauley with condescension as he used his progress note as a script to carefully explain a medical quandary. Anderson guided Dr. Chambers through the shoals, with speaking objections, lifelines and strategically timed recesses to control the deposition. McCauley, however, treated the deposition as a sparring session to size up his adversary. Dr. Chambers was self-confident but combative and defensive. As McCauley, wet with perspiration, drove back to his office after the deposition, he felt in his gut that Chambers was hiding something. In his 47 years as a plaintiff s attorney, McCauley had never seen such a detailed, annotated progress note. Despite that note, McCauley instinctively knew Serafina deserved better. The discovery preliminaries led to stepped up trial preparation, and then to the Monday morning 9 am call for the jury to Department 47 for the main event. McCauley was satisfied with the seven men, five women jury and only used three peremptory challenges. Anderson used all six of his peremptories. None of the jurors showed an inclination to subjectively favor a professional in a caring profession over the plaintiffs. McCauley realized the case was closer than the odds. Edward was a sympathetic, appealing witness. Serafina s condition and the need for lifetime care weighed in their favor, but the medical complexity and Dr. Chambers well versed experts in contrast to the plaintiffs one retired gynecologist expert tilted the odds toward the defense. McCauley knew the case ultimately rested on whether the jury trusted Dr. Chambers. A hard copy of the digitized hospital records with the original digital record was received into evidence as plaintiff s exhibit 1 and 1a. Most of the jurors took notes and placed them in their own confidential binders at the end of the day for safekeeping by the bailiff. The jury wanted to do what was right. Both attorneys were in their best form in opening statements, and direct and cross examination of witnesses. The trial progressed with blows and counter blows and some carefully timed uppercuts. There were few clinches. Anderson grabbed the jurors attention with a multimedia presentation of digital exhibits, deposition excerpts placed on video screens and medical graphics worthy of Madison Avenue. Mc- Cauley countered with incisive, understandable questions honed from CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 17

18 The Last Steak, cont. from page 17 years of practice. Edward left some of the jurors with tears in their eyes as he explained how much he loved Serafina, how he helped care for her each day and how lonely he felt in his empty home. Exuberant youth appears brighter than fading age. During the noon recess each day, McCauley washed his face with cold water to appear revitalized and changed into a fresh, dry dress shirt that Joan put in a separate to do briefcase. He did not want Anderson or the jury to know how old he felt or how tired he was. Judge Carlton could feel the tension as each side pressed forward without producing any knockdowns. The judge denied the defense motion for a non suit after McCauley rested his case. McCauley watched the jurors reaction during his presentation, worried that he had not been persuasive enough and was behind on points. McCauley knew somehow he would have to come from behind during the defense case. Examination of the defense witnesses went as McCauley generally expected. The defense experts held their ground with a few concessions as they used Chambers progress note to justify his judgment. McCauley could see that Anderson was laying the groundwork for a devastating, dual defense from the standard jury instructions: a doctor is not necessarily negligent if his efforts are unsuccessful or if he makes an error that was reasonable; and he is not necessarily negligent because he chooses one medically accepted method of treatment or diagnosis and it turns out another medically accepted one would have been a better choice. The court recessed early for the day at 3 pm, in the ninth round, with McCauley on the ropes as the bell sounded. The last witness in the last round was Dr. Chambers at 9 am the next day. In the corner of the empty courtroom, Frank McCauley tried to regroup and again studied the timeline from the notes, orders and lab results, from the time of admission to the post operative recovery room through the next day. Something wasn t right. He called Joan to discuss some last-minute jury instructions and shared his misgivings with her. As he explained the time line of events, she asked him if he had verified all of the times from the metadata on the original digitized hospital records. He knew from his classic Greek course at Santa Clara that meta meant with, or among, and could be used to mean something new. But what was metadata? Tax & Estate Attorneys Individual & Business Tax Issues Tax Preparation Tax Planning Tax Controversy Sophisticated Estate Planning Estate Administration Trust & Estate Litigation Probate YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 Walnut Creek, CA (925) Walter C. Youngman, Jr. Mark S. Ericsson Dani Altes, Paralegal Chastity A. Schults, Partner Mayra Aviles, Paralegal 18 JULY 2013

19 Joan explained that besides the images of the entries in the records, the original disc, exhibit 1a, would also contain additional imbedded data showing the precise dates and times when entries were made, and by whom. While McCauley waited nervously in the courtroom, Joan contacted a computer specialist who arrived at the Bray Building at 4:30 pm with a retrieval application for accessing the digital record, exhibit 1a. The result was stunning. Although Dr. Chambers had entered the time of his examination conveniently close to the nurses call to him, the metadata showed his long entry was actually made hours later at 9:58 pm. Chambers had not responded to Serafina s plight in a timely manner as he said under oath in his deposition. He was not at the hospital when she needed him most and the staff was relying on him for followup care. His note was a lie, a cover up. As the bell for the final round sounded, a self-confident Dr. Chambers looked directly at the jurors, answered Anderson s carefully prepared questions, and used PowerPoint displays to explain the conundrum that confronted him after the hysterectomy and why the mysterious Reyes Syndrome might have been the culprit. Fear of losing emboldened Mc- Cauley, who devised a cross examination limited to 25 minutes, to maximize the impact of what he wanted to accomplish. He summoned up the strength for one final round. Dr. Chambers had no choice but to agree that a doctor s progress notes must be accurate, including the time specified, because nurses and other doctors rely on the continuity of notes for proper patient care. Hippocrates himself would have demanded nothing less. The jurors looked at their copies of the progress note as McCauley committed Chambers to the 7 pm entry. Then the old fighter held up the digitized original and bore in on the defendant with the pivotal question: Doctor, if you were at the patient s side at 7 pm, why does the original digital time from the records department show your own entry at 9:58 pm? A basic trial rule is never ask an opposing witness why; but this question was like a taut vice on Chambers, and proved the exception to the rule. Dr. Chambers looked like a leaf falling from a sudden gust. The silence was agonizing as he struggled to explain the discrepancy. He could not rest on the ropes or clinch his opponent. Anderson called for a short recess, but Judge Carlton denied the request. Jarred by a quick flurry of followup punches, Dr. Chambers was forced to admit he had left the hospital after the operation and was at an important social event because he did not expect any complications after an uneventful procedure on a healthy patient. He missed the calls for help, and when he later found out what was happening, prepared the long note with researched citations to Reyes Syndrome because he indeed believed it was the cause. Apologetically he asserted it would have made no difference if he had been at Serafina s bedside and tried to explain why. A reeling Anderson attempted to counterpunch from the stunning blow by developing the same theme in his rehabilitative redirect examination. McCauley asked no more questions. The defense rested. Closing arguments commenced. Anderson forcefully argued lack of causation and failure of proof to the jury. No one really knew what caused the coma, and certainly Dr. Chambers absence and improperly timed entry made no difference. Like a medical school professor, Anderson took the jury through the records and testimony that supported his fall-back defenses. The jury remained attentive. On rebuttal, Mc- Cauley delivered a final blow with a quote from Hippocrates and the commandment: Thou shall not bear false witness. Everyone in Department 47 waited anxiously for the jury s decision as the foreperson, as part of the legal ritual, handed the signed form to the bailiff to give to the judge for his review, and then on to the clerk. The clerk s voice reverberated as she announced the verdict: We, the jury, find in favor of plaintiffs in the sum of $1,790,975. Three weeks later, as he reflected on the trial, Judge Carlton concluded that 12 jurors saw that Dr. Chambers had played with the truth and failed Hippocrates imperative, Do no harm. Dr. Chambers fabricated note, his absence during a critical time of need, and his seemingly contrived Reyes Syndrome explanation were decisive. Judge Carlton denied the motion for new trial. Frank McCauley earned that last piece of steak. Jack London would have been proud. s CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 19

20 Will Durst RES IPSA JOKUITOR XVIII COMEDY NIGHT April 24, 2013 Irish Newsboys Candice Stoddard, Chris Graves, Lisa Reep and Jay Chafetz Margie Birkaeuser and friends Hon. Steve Austin Audrey Gee, Kathryn Wenger and Wendy Graves Megan Andrews, Todd Friedman and Suzanne Boucher 20 JULY 2013

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