That First Trial - Getting it Under Your Belt By Howard Serbin, contributing author to the Orange Counter Lawyer magazine

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1 Ed. Note: The Res Ipsa Loquitur was granted permission to reprint this article from the August edition of Orange County Lawyer by its editor. Reprinting was granted with the request that the article be run verbatim, with no textual changes. References to Orange County and specific locations can be easily inferred to Kern County locations. Getting it under your belt via aiding in mental health cases That First Trial - Getting it Under Your Belt By Howard Serbin, contributing author to the Orange Counter Lawyer magazine You ve spent five years in a law firm and you still haven t had a case go to trial. It seems like you are going to have to wait forever. The firm s clients want the experienced pros to handle the cases. No one Calendar of Events NOVEMBER 8 Consolidated Special Statewide Election 11 Veterans Day (court closed) 16 Mock Trial 22 Deadline to vote in KCBA election 24 Thanksgiving Day 25 Thanksgiving Day Observed (court closed) 30 Mock Trial wants to take a chance on you. What do you do? Take a leave of absence to work with the D.A. or P.D.? Keep taking moot court cases, and tell yourself they count? Spend days standing at the entrance of Judge Judy s studio, offering your services? Take heart. There is a way to get trial experience, even jury trial work, while making an important contribution to Orange County s legal system. The answer is to get on an attorney list for appointment in Mental Health (LPS) cases. (More experienced trial attorneys are encouraged to apply, also). In LPS cases, the only issue is whether, as a result of a mental disorder, the patient/proposed conservatee is gravely disabled that is, unable to provide for his or her own food, clothing and shelter. If the patient is found gravely disabled as a result of a mental disorder, he or she is on a conservatorship for up to one year, after which a reappointment petition must be granted. The LPS conservatorship is the only mechanism for longer-term involuntary commitment and treatment of the mentally ill in California (other than the Probate Code procedures applicable only to dementia patients). DECEMBER 8 KCBA/KCPA Joint Holiday Luncheon at the Crystal Palace 25 Christmas Day 26 Christmas Day Observed (court closed) JANUARY 1 Happy New Year! 2 New Year s Day Observed (court closed) Proposed LPS conservatees have a right to a court trial or jury trial. Court trials are held in Department L53; jury trials are conducted in other court, usually Central. In most cases, the Public Defender represents the patient. At trials to establish a conservatorship, the petitioner is the Public Guardian, represented by County Counsel. In about onehalf of the cases where an LPS conservator is appointed, the Public Guardian becomes conservator, but in the rest, a That First Trial, continued on page 22

2 President s Message - The Benefits of KCBA Membership By Tom Clark About the Kern County Bar Association The Kern County Bar Association provides leadership in advancing the professional interests of the membership and serving the legal interests of the community: Goal I Promote professional development and improve participation by all members. Goal II Foster cooperation and goodwill between the legal profession and the community, and disseminate information to the public. Goal III Build and maintain programs to assure financial stability. Goal IV Facilitate the use of technology in the practice of law. In This Issue President s Message - 2 Ethics Hotline - 4 Advocatus Caecus - 5 History Column - Recovering from a Natural Disaster - 6 Solo Corner - Pros and Cons of Blogs and Blawgs - 8 GBLA - Veterans Stand Down - 10 & 11 Lorenzen is Key GBLA Volunteer - 12 Court in the Park - Tents as Courtrooms - 14 The Probate Report - Recognizing Elder Abuse - 16 & 17 2 Res Ipsa Loquitur

3 Nominations Open for KCBA Board of Directors Any voting member of the Association, in accordance with the KCBA Bylaws, may nominate themselves or others for any officer or director position by submitting in writing the name of the nominee and such nominee s acceptance, to the Elections Committee, c/o Kern County Bar Association, 1675 Chester Avenue, Suite 220, 93301, or by delivery to same. Any such additional nominations must be received by 5 p.m. on October 26, A ballot containing the names of all KCBA nominees and positions shall be sent to all KCBA members before November 11, YLS - Bridging the Gap Please mark your calendars for Bridging the Gap in early December. Bridging the Gap is an informative program for new admittees, the culmination of which is the state and federal swearing in ceremony. Please contact Lisa Holder at KDG at or lholder@kleinlaw.com if your firm has individuals who are eligible to be sworn in this December. More information is forthcoming. YLS - Community Service Focus Project The Young Lawyers Section currently is soliciting donations for their 2005 community service focus project of art supplies to the Boys & Girls Clubs of Kern County. Please contact Tenielle Cooper at KDG at or tcooper@kleinlaw.com to discuss how to make your tax deductible donation or in-kind donation. Access to Justice Reception & Recognition Greater Bakersfield Legal Assistance, Inc. and the Kern County Bar Association will be hosting an event to celebrate and recognize outstanding leaders from Kern County s legal community who have invested time and resources toward ensuring access to the legal system for our most vulnerable populations. During this event Estela Casas, Esq., Executive Director of GBLA and Tom Clark, Esq. News from Around the KCBA President of the KCBA will be presenting Pro Bono Service Awards, the Access to Justice Award, the Community Partner Award and an special award to be announced. RSVP by October 28 to Jill Platt, Volunteer Attorney Program Coordinator, Thursday November 3 5:30-6 p.m. Hors d oeuvres and Cocktails 6-6:30 p.m. Recognition Ceremony Luigi s Restaurant 725 E. 19th Street The Gospel According to Scrooge Don t miss this musical! A cast of 50 and a full orchestra make for an exciting evening. The Gospel According to Scrooge will play on December 15, 16 and 17 at 7 p.m. and a special 2 p.m. matinee on December 16. Call for free tickets. Musical will be held in the auditorium at the First Assembly of God Church, 4901 California Avenue. What We Do For A Living Is Criminal al...defense Gael G. and Melvin T. Mueller proudly announce the opening of Mueller & Mueller, Attorneys-at-Law 432 Truxtun Avenue, ~ November

4 both ways. All s well that ends Last month I mentioned my frustration in trying to pick juries. I am not sure which is worse; not knowing what kind of juror you want or knowing what kind of juror you want but being unable to get those sort on your panel. I ve had it Encouragingly, sometimes you do OK in spite of yourself. Too often I thought I was in Adlai Stevenson s position ( Mr. Stevenson, his fans gushed, I just know all the intelligent people will be voting for you! Yes, he said, But I need a majority of the vote to win... ) when I was really in the position of the Lost Dauphin (or was it the Duke of Bilgewater? You remember, from Huck Finn. One of them said something like Won t we have all the fools in town on our side? And ain t that a majority in any town? ) Once I tried a land fraud case involving a well. I represented the landowner/sellers accused of fraud in the sale of the land. The alleged fraud was concealment of defective water well. There was direct and circumstantial evidence. I thought the direct evidence was at worst a tie, and that I should win on the circumstantial evidence. My opponent was a lot better lawyer than I am. The closest thing I saw as a flaw in his approach was that he had a bit too much faith in his clients honesty. I thought his clients, a mother and son, were obvious liars, and said so. I suppose there are worse things you can say bout a lawyer than that he trusts his clients, but it made settling the case impossible. I could not get my opponent to accept that a jury might disbelieve his clients just because I so vociferously did. It takes time and patience to exam a liar sufficiently to show their dishonesty (and luck helps!). Fortunately for me, the son in my case was not as sneaky or smart as his mother, so after I had drawn enough from the mother I could count on the son not to be clever enough to keep consistent with the mother s various evasions and half truths. A View From the Watershed By Jay C. Smith Still, even when we as lawyers see a witness as totally dishonest, the jurors may not notice. That was why I was so happy to get a juror on the panel who actually knew something about wells and pumps and so on. I expected that the circumstantial evidence would wow this guy, and he would shepherd the rest of the jurors to vote my way. Thank heavens for a juror who actually knew something, I thought. I was still nervous during the deliberation. The other lawyer was, as I said, better than I was and he did a better job in the trial. I was therefore tremendously happy when the jury came back within 20 minutes with a verdict for my clients. It was a civil case. So we only needed 9 votes to win. We got 11. The only juror who voted against me was the one juror who knew anything about the subject. Ouch. 4 Res Ipsa Loquitur

5 Wordsworth advanced a theory that good poetry would sound much like good prose. Meter and rhyme should intensify mood, not destroy clarity. Recently, the judicial council has authored an entire set of criminal jury instructions. Like Wordsworth, the authors claim greater simplicity will achieve greater clarity. Unlike Wordsworth, the authors of these new instructions seek to enhance the achievement of justice, not merely to enhance the joy that one experiences from reading moving poetry. Has the Judicial Council achieved its goal? To answer this question, I recently reviewed Judicial Council Instruction No. 103 and compared it to California Jury Instruction, Criminal (CALJIC) Instruction Both instructions are designed to inform jurors of the presumption of innocence and define reasonable doubt. CALJIC Instruction 2.90 has a long history. The essential language defining reasonable doubt was borrowed from Advocatus Caecus By C. M. (Bud) Starr II Massachusetts Chief Justice Shaw in his decision in Commonwealth v. Webster in 1850 and adopted by early California Supreme Court decisions. In 1927, the California Legislature amended Penal Code section 1096 to include the time-honored definition. A 1994 United States Supreme Court decision, however, questioned the terms moral evidence and moral certainty as somewhat archaic. The phrases were deleted from CALJIC 2.90, and in 1995 the California Legislature amended section 1096 to delete the terms. No appellate court has reversed a trial court for use of the legislatively directed instruction from 1927 right up until and including today. Judicial Council Instruction 103, after unrelated matters are deleted, contains 158 words to describe the presumption of innocence and reasonable doubt. All of the essential phrases and terms are identical to those used in CALJIC The older instruction, however, contains only 124 words. Justice must require more sentences and more words! Wordsworth would blush. November

6 Mock Trial, Years and Counting! The Kern County Bar Association has partnered with the Kern County Superintendent of Schools for 24 years to coordinate the Kern County Mock Trial program. There is no doubt that this 24-year partnership has encouraged thousands of students in Kern County, raised their selfesteem and expanded their understanding of the law. With the support of over 100 Kern County volunteer judges and attorneys, the Mock Trial program promotes a unique one-on-one interaction between students and volunteers, and effectuates a rich and rewarding experience for youth and adults alike. Through pre-competition coaching and actual trials, legal volunteers offer first-hand knowledge of the law, while serving as role models for Kern County students. Public speaking, critical analysis and reasoning ability are just a few of the skills young people gain from participation in this event. Many students have decided to pursue careers in law due to their association and experience with Mock Trial and the legal community. By Christine Goedhart-Humphrey JUST RESOLUTIONS, LLC Alternative Dispute Neutral Services Your public service, through Mock Trial, touches thousands of lives, as family and friends witness students participating in the Mock Trial program. Our community often sees the ugly side of the legal profession portrayed in our newspapers and on television. By volunteering for this year s Mock Trial program, you have an opportunity to demonstrate the compassionate and humane side of your profession. Please take a few minutes to fill out and return the Mock Trial Needs You! insert in this month s newsletter. Again, we applaud the members of the Kern County Bar Association for mentoring and encouraging Kern County s young people to become involved, in a positive way, with our legal system, through the Mock Trial program. Mock Trial would not be possible without the incredible legal community in Kern County! OUR MISSION IS A SUCCESSFUL RESOLUTION OF YOUR CASE Specializing in Resolving Disputes: Labor & Employment Real Estate / Construction Professional Negligence Personal Injury Insurance Litigation Business Litigation Serving Central California Probate & Trust Litigation Bakersfield, Fresno, Monterey, San Luis Obispo, Santa Barbara & Elder Abuse Litigation Ventura Craig R. McCollum 960 Toro Street San Luis Obispo, CA Phone: (805) Fax: (805) justresolutions@aol.com 6 Res Ipsa Loquitur

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8 Benjamin Whorf posited the notion that people s thoughts were circumscribed by the language they spoke and that the differences in their language reflect their cultural milieu. In other words, one s vocabulary confines one s thinking, one s cultural language informs one s ideas. This collapses into the notion of linguistic determinism. This sort of narrowing the human cognitive experience gives one pause for thought in whether there is a common thread that can bridge the cultural gap. Can cognitive awareness bridge the cultural guidelines found in language? In What We Know, on the universals of language and rights, Noam Chomsky said if language shared similar properties as biological systems then there are three factors that shape the growth of language in the individual: genetic factors, experience and principles not specific to the faculty of language, such as computation. Reflecting upon thirdfactor considerations in understanding the universals extant in language, Chomsky observed that Hume likened moral judgments to linguistic knowledge that must be founded on general principles that exist in a range beyond our original instincts which form the bedrock of our knowledge and belief. Cartesian logic, while satisfying its own internal form, fails when juxtaposed against deepseated moral intuitions that move beyond that which can be explained through conditioning or training. Karen Gaul Wallace would like to announce a change of name for her law practice from Gaul Wallace Oldfield to Gaul Wallace & Associates 1670 M Street effective October 1, 2005 Solo Corner: The Language Trap by Gabriole Zeviar-Geese How does all this foregoing fribberish tie into day-to-day running of a law practice? An area of developing law is that of language discrimination. It is illegal for employers to discriminate against an employee because of national origin. Push it a little further and the ancestral or primary language of a person is tied into his or her ethnicity and national origin. Before you know it you can have a case of discrimination against language subsuming into a case of national origin discrimination. The U.S. Equal Employment Opportunity Commission holds that Title VI of the Civil Rights Act includes the denial of equal employment opportunity based on an individual s physical, cultural or linguistic characteristic the primary language of an individual is often an essential national origin characteristic. Under Federal law, employers who are hostile in applying an English-only work environment, while not showing a business necessity for the policy (i.e., it is necessary to safe and efficient job performance and that there are no other alternatives which would serve the employer s legitimate interests with a less discriminatory effect) are in violation of Title VI Civil Rights Act. Employers who deny an employee a promotion on the basis of communication skills or professionalism may be indirectly referring to an employee s accent, thereby indicating a cultural bias based on accented speech. The Unruh Civil Rights Act proscribes discrimination of every kind whatsoever by businesses. The Supreme Court of the State of California interprets the Unruh Act broadly to include personal characteristics, even if they are not specifically listed in the Unruh Act. The term business establishment includes non-commercial as well as commercial businesses that are open to and serve the public. Harkening back to Whorf and Chomsky, are we unconsciously linguistically challenged ourselves by our own language flow and preconceived structures? Is our language informing our thinking about others, or are we moving beyond to our moral intuitions? 8 Res Ipsa Loquitur

9 The law firm of Klein, DeNatale, Goldner, Cooper, Rosenlieb and Kimball, LLP has announced the growth of its practice with the addition of Gary Logan as partner and Katy C. Raytis as associate with the firm. Law Firm to Grow with Key Additions Logan was admitted to the State Bar of California in He attained his law degree from the University of San Diego and his bachelor s of arts degree from California State University at Chico. Logan has joined the firm s casualty defense and civil litigation practice areas. He has more than 25 years experience in the insurance defense industry, first working with State Compensation Insurance Fund as legal counsel, and later as a partner with the law firms of Robinson, Palmer & Stanton and Robinson, Palmer & Logan. Logan is an A.V. rated attorney from the Martindale- Hubbell Legal Network, the highest designation possible through the Martindale-Hubbell Rating system. Martindale- Hubbell Ratings are a result of a peer review system. Ratings attest to a lawyer s professional legal ability and ethics, and are based on the confidential opinions of members of the bar and the judiciary. Logan is one of eight AV Rated attorneys at KDG the firm has more AV Rated attorneys than any other law firm in the Bakersfield area. Katy C. Raytis will concentrate in the areas of employment and business litigation, joining a well-seasoned team of attorneys. She previously worked for Allen, Matkins, Leck, Gamble & Mallory in San Francisco. Raytis was admitted to the State Bar of California in 2001 and is a member of the Kern County Bar Association. She received her J.D. from Boalt Hall, University of California, Berkeley in 2001, where she was awarded Order of the Coif. Raytis received her bachelor s of arts degree in 1993 from the University of California at Berkeley. Kenneth N. Vaughan, CPA/ABV Partner kenv@dpvb.com Daniells Phillips Vaughan & Bock CPAs & Advisors 300 New Stine Road Bakersfield, CA Tel: Fax: Member of the McGladrey Network November

10 If You Build it, They Will Come Inaugural Event with Federal Bar Assn Reflects Establishment of Federal Court and Growing Practice in Kern Our legal community passed a mile marker on September 23 when the San Joaquin Valley Chapter of the Federal Bar Association (SJVCFBA) and the Kern County Bar Association (KCBA) jointly hosted An Evening with the Federal Court, featuring David F. Levi, Chief United States District Judge for the Eastern District of California. Roughly 100 attendees enjoyed great company, laughs and illuminating presentations from federal judges at the first-ever event of its kind in Bakersfield. After welcoming the group and thanking KCBA past president and current Ninth Circuit Lawyer Representative Bernie Barmann, current KCBA President Tom Clark and others for their collaboration, Fresno attorney and SJVCFBA President Greg Durbin expressed his hope that the two organizations would stage more events together, as SJVCFBA membership grows in Kern County. United States Magistrate Judge Theresa A. Goldner spoke next. She began by welcoming the Honorable Anthony W. Ishii, U. S. District Court Judge, the Honorable Dennis L. Beck, Chief U. S. Magistrate Judge, the Honorable Lawrence J. O Neill, U. S. Magistrate Judge and the Honorable William M. Wunderlich, U. S. Magistrate Judge. Judge Goldner presented each with an I Love Bakersfield t-shirt. Judge Ishii remarked, I ll wear this during my Monday calendar. Laughter roared when Judge O Neill subsequently quipped, when receiving his t-shirt, Judge Ishii will wear this during his Monday calendar. Judge Goldner recounted the challenges she faced when she became the first full-time U.S. Magistrate Judge stationed in Kern County in After finally finding space in the Old Church Plaza office building on Truxtun Avenue, she opened her office with four phones and no furniture bringing new meaning to the term four on the floor. The District Court and the Bankruptcy Court agreed to share the facilities at th Street until a new federal courthouse is built here. Although approximately 340 of the original civil cases before Judge Goldner have resolved since she began, her docket presently contains roughly 400 civil cases, reflecting the growth of activity in By Lynne Johnson Carrithers, Esq. and David A. Dixon, Esq. Kern County. In the same period, she has handled more than 275 criminal matters and more than 2,000 criminal petty offense matters have resolved. Evoking the phrase if you build it, they will come, she discussed the timetable for the new courthouse and the positive impact it will have. Judge Goldner then introduced Chief Judge Levi, whose long list of extraordinary legal credentials accurately foreshadowed the treat his remarks would prove to be. To thank him for appearing, Judge Goldner gave him a special Bakersfield edition of a Stetson cowboy hat but only after quoting chapter and verse from the applicable judicial ethics provisions to establish that she could. Chief Judge Levi delivered well-organized and uniquely insightful remarks about the federal judiciary. He conveyed the magnitude of the Eastern District by reporting that it represents the third largest district in the nation geographically, stretching from the Oregon border to Mojave, serving a population of more than seven million in a region characterized by explosive growth, dynamic economic activity, acute environmental concerns and large federal land holdings resulting in a diverse and voluminous federal court docket. He confirmed that the Eastern District ranks first in the nation in terms of the highest weighted caseload per judge. He commended his colleagues for their hard work and dedication to public service. The Chief Judge described the difficulties in meeting the growing judicial needs of the Eastern District caused by contemporary politics involving the composition of the Ninth Circuit Court of Appeals. Repeated attempts in Congress to fund needed additional Eastern District judge positions have been stalled because of political linkage with the issue of whether the Ninth Circuit should be split. Chief Judge Levi observed that the Ninth Circuit is the largest of the 13 federal circuits, encompassing essentially everything known as the West, and then summarized the various proposals in Congress to split it, all against the backdrop that 72% of the cases before the Ninth Circuit Federal Law, continued on page Res Ipsa Loquitur

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13 An Evening with the Federal Court - SJV Chapter, Federal Bar Association

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15 Lawyers Bring Civil War Battles Home to Bakersfield Several months ago I wrote about the debt we owe people who have preserved aspects of our country s history. Two local lawyers, Joseph Pluta and Deputy District Attorney Don DeCamp, should be added to this list. Don DeCamp was in junior high school in 1961, when his grandfather gave him a subscription to a new magazine, Civil War Times Illustrated. This magazine began publication in April 1961, to coincide with the 100 th anniversary of the commencement of the Civil War. (Because interest in the Civil War was so great, the magazine continues to flourish to this day.) Thus began Don DeCamp s interest in the Civil War. Don DeCamp visited several other Civil War battlefields before visiting the most often visited battlefield in our country, Gettysburg, in He, like most who visit that hallowed ground, was in awe. Unlike most who visit Gettysburg, however, Don has built a house there and plans to spend several months of the year there after he MICHAEL BURGER & ASSOCIATES 3512-B Coffee Road By Susan Gill retires next year. His house sits three miles west of the town of Gettysburg, right where the Confederate artillery was positioned on the first day of the battle. Don has been active in the Civil War Preservation Trust, which works to preserve Civil War battlefields which are at risk of being obliterated by modern development. He is also active in the Friends of the National Parks at Gettysburg. This organization does a lot of restoration work at Gettysburg repainting and sanding down the cannons, replacing the worm fences on the battlefield and caring for the peach trees in the peach orchard. Don s ultimate goal is to become a licensed battlefield guide at Gettysburg. He compares the licensure process to the Bar Exam, with good reason. A one-day written examination is given every two years. To prepare for the exam, it is recommended that applicants read 150 books on the battle which are on a list approved by the National Parks Service. In addition, before taking the test, the applicants should spend four to six months walking every inch of the battlefield, learning the terrain and the positions of the various units during the battle. Those who score in the top 30% of the exam are invited to participate in two months of hands-on education and training every weekend. This includes extensive tours of the battlefield with instruction Civil War, continued on page 16 Real Estate Appraisal & Consultation CommercialtIndustrialtAgricultural ResidentialtApartments Right-Of-WaytEstatestCondemnation DivorcetFamily PlanningtProbate We Service the Entire San Joaquin Valley (661) Effective October 1, 2005, I, Robert H. Brumfield, III, will merge my practice into the firm Kronick, Moskovitz, Tiedemann & Girard, A Professional Corporation. The move is very exciting and will allow me to not only be able to handle matters as I have in the past, but also provides the resources of a larger firm that I did not previously have. My new contact information, as of Monday, October 3, 2005, is as follows: Kronick, Moskovitz, Tiedemann & Girard, P.C Chester Avenue, Suite 320 Bakersfield, CA phone: (661) / fax: (661) rbrumfield@kmtg.com November

16 Civil War, from page 15 and education. After this two-month training, each applicant is ranked and given a final test, which includes driving a car and acting as a tour guide on the battlefield. Applicants are evaluated on their presentation, knowledge and driving skills. Then, the applicants are ranked again, and when positions become open, those at the top of the list are offered a position. Guides can be available fulltime, or they can choose to be available only during certain months, certain days of the week or certain hours of the day. The written exam was just given recently, so Don has two years to study for the next test. For those wondering where his loyalty lies, with the Confederate or the Union Army, Don has ties to both. His great-grandfather fought with Virginia Cavalry and his great-great grandfather fought with a unit from Wisconsin. Wouldn t it be fun to visit Gettysburg several years from now and discover your battlefield guide is a lawyer from Kern County? One need not go to Gettysburg to bring the Civil War to life. At work, attorney Joseph Pluta fights for his clients to receive appropriate worker s compensation awards. But, during his free time, he reads and studies about the Civil War. One Thursday night each month between September and May, Joe drives out to Panama Buena Vista School District s Opportunity Center on Schirra Court to attend the Bakersfield Civil War Round Table. The Civil War Round Table is a group of people who are interested in the Civil War. Joe said anyone is invited to attend. Those attending may simply sit and listen, or they may join in the discussion. During the first meeting in September, those present decide what they will do for that year. Two years ago they agreed to read the first volume of Bruce Catton s Civil War Centennial Trilogy, The Coming Fury and each month they discussed one chapter of the book. Last year each member gave a ten-minute presentation on a topic that interested them, with discussion following. Anyone who would like to join this group should call Joe Pluta, at Res Ipsa Loquitur

17 Federal Law, from page 10 originate in California. Proposals that do not split California may not accomplish supposed objectives of the impetus to split the Circuit, yet any proposal that would split California would introduce legal unpredictability for California s massive population. The speaker shared fond memories of his personal experiences with recently deceased Chief Justice William Rehnquist. He recalled the admiration he developed for Rehnquist, during his clerkship with Justice Lewis Powell, as he observed Rehnquist, still with sideburns then, enthusiastically seeking input from his young clerks by engaging them in debates about cases during lengthy strolls. He said Rehnquist s sense of humor was so dry it was often difficult to tell when he was kidding. For example, Clerk Levi spent so much time visiting another clerk in Rehnquist s chambers that Rehnquist once quipped, Should we get you a desk? Chief Judge Levi can still only speculate whether Rehnquist intended that he should laugh or exit chambers immediately. At the time, he opted for the latter. He also spoke of Rehnquist s replacement, Supreme Court Chief Justice John Roberts, whom he knows. He commented that Roberts is extremely smart and capable, and conveyed Roberts quick, sometimes self-deprecating wit. As he concluded, Chief Judge Levi thanked the group for the invitation to speak and said he hoped to return for another event so he could wear his hat. In fact, as guests gathered to thank him after the program, he was already doing just that. The significance of this inaugural event was highlighted in Mr. Durbin s opening remarks, when he observed that only one SJVCFBA member resided in Bakersfield as of that evening. By the time the event concluded, the benefits of an expanded SJVCFBA presence in Bakersfield were clear. Anyone interested in joining or obtaining more information should contact SJVCFBA Membership Chair Brian Enos at or David Dixon at Submitting Articles to Res Ipsa Loquitur The Res Ipsa Loquitur editorial committee welcomes articles as well as jury verdicts submitted by its members. All submitted articles should be educational in nature and can be tailored for either the new practitioner or experienced lawyers. Feature articles should be between 750 and 1,000 words in length. Citations should be within the article s text (no footnotes). A byline must be included. Articles should be submitted electronically. The party submitting any article or letter to the editor agrees that by submitting the same they expressly grant the Res Ipsa Loquitur editorial board the right to edit or alter the article in any manner deemed necessary. The Res Ipsa Loquitur editoral board reserves the right to refuse to publish any article or letter. For additional guidelines or clarification, contact the Kern County Bar Association at or RIL@kernbar.org. The deadline for each issue of the Res Ipsa Loquitur is printed on the back cover of the RIL The Kern County Bar Association does not publish the Res Ipsa Loquitur in August. November

18 Adoption Day Event Spotlights Children in Need of a Loving Home By David A. Dixon, Esq., Hogan & Klingenberger, Employment Law Firm Anyone interested in miracles overcoming daunting odds can find encouragement on Adoption Day, Friday, November 18, when approximately 40 children currently in foster care throughout Kern County will be united with permanent, loving families, during festivities at the Juvenile Justice Center, 2100 College Avenue, in Bakersfield. Coordinated nationally by a group of organizational cosponsors, National Adoption Day seeks to raise awareness of the children in America s foster care system, to motivate prospective adoptive families and to facilitate the placement of children into adoptive homes. The local Adoption Day event on November 18 will be the fruit of the dedicated efforts, cooperation and sponsorship of a broad array of parties, including Kern County Department of Human Services, Kern County Superior Court, the Kern County Bar Association, CASA, Koinonia Foster Homes, Inc. and Kern Bridges, Inc. The activities will begin at 12:30 p.m., with a press conference featuring Mayor Harvey Hall, an adoptee himself and a recently adopted teenager. Confidential court sessions will then finalize about 40 adoptions, with extended members of new families there in support, as well as social workers and CASA volunteers. Photo opportunities for each extended family with the Judge will follow. The public is welcome to attend the press conference and to participate in celebration events after the court sessions, which will be conducted in tents just outside the Juvenile Justice Center. Festivities will include food, childrens activities and plentiful information for anyone interested in adoptive or foster parenting. The folks in charge of the local event asked me to write this article for the Res Ipsa when they learned that my wife, Karen, and I adopted three children this year, aged 12, 9 and 8, respectively, bringing our total to four kids (including the now five-year-old boy we adopted as an infant in 2001). The hope is that some personal reflections might encourage other prospective families to consider adoption. I agreed to write, but only with humility and cautious sensitivity to the fact that family-building decisions are intensely private matters. I do not state or mean to imply any judgments about what others should do. Likewise, Don t Miss This Musical!! A Cast of 50 Plus Full Orchestra! THE GOSPEL ACCORDING TO SCROOGE! December 16, 17 & 18 Friday and Saturday at 7 p.m. Sunday at 6 p.m. First Assembly of God Church 4901 California Avenue, Bakersfield, CA Res Ipsa Loquitur

19 adoptive families take many forms and I do not intend here to exclude anyone s concept of family. If at least one family considering adoption might find something helpful to them here, then I will be glad to have offered it. My reflections fall into three categories: (1) the need for adoptive families; (2) the rewards of adoptive parenting; and (3) how we decided to adopt. Staggering statistics establish the need for adoptive families. In Kern County, there are presently 1,500 children in out-of-family foster placements and roughly 700 children eligible and awaiting a permanent adoptive family. Roughly 118,000 children in foster care across the United States are waiting to find permanent, loving families. Numbers from outside the U.S. establish the need even further. UNICEF s 2004 publication, Children on the Brink, reported more than 12 million orphans in Latin America, 43 million in Sub-Saharan Africa and 87 million in Asia, for an estimated total (still not including additional orphans from other regions, such as Eastern Europe) of 143 million orphans. To put that in context, if each of the 112 million total U.S. households that year had adopted one child, the remaining 31 million orphans would still constitute a population roughly equal to the number of people residing within the city limits of the 20 largest U.S. cities combined. Parents are a great blessing for kids. In my experience, the deepest rewards of adoptive parenting consist of the common, deep rewards of parenting more generally. This is partly because every child is a miraculous creation, complete with his or her own unique combination of joys, fears, talents, challenges, energies, interests, heart, etc. the fact that a child spent time in foster care, an orphanage or any other setting, does absolutely nothing to diminish this. It is also partly because trying (however unsuccessfully it may seem at times) to meet the tough challenges of parenting children is ultimately among the most deeply rewarding activities available in life. These essential realities are just as true for adoptive parents as for any other parents. So, while important challenges and rewards unique to adoptive parenting certainly exist, I think focusing too much on those aspects risks missing the more essential heart of the matter. Kids are a great blessing for parents. Every family must take its own path to adoption. Along our long path, we became part of the large but often disconnected and publicly invisible community of families struggling with issues like endometriosis, unexplained and explained infertility, multiple miscarriages, failed infertility treatments, failed surrogacy and many related issues. Karen eventually became President of Resolve of Wisconsin, Inc. (and I, its Advocacy Coordinator) and we pray that those currently experiencing the grief of involuntary childlessness will soon find their own resolution (for help, see We took years making our first decision to adopt, performing exhaustive research, interacting with adoptive families, helping to organize two major adoption-related events and carefully weighing all foreseeable costs and risks. But what may be more insightful than any summary of the resulting mountain of information is that despite all of that I remained less than 100% certain about the decision. My wife became certain about the decision, but cost concerns remained. Tensions resulted, but we were connected to a community of similarly-situated folks and were able to see that every two-decision-maker family faces similar issues. After time and prayerful reflection, I concluded that 100% certainty doesn t always come in life and that I was just growing old waiting for it to arrive. And so, finally, we took the leap of faith that for us was required. Miraculously, that previously elusive 100% certainty arrived immediately and permanently the moment I held our first son. Having experienced that miracle, the later decision to adopt more kids was relatively easy and I m glad to confirm that each of my kids is equally miraculous! More information about local adoption is available from the Department of Human Services at Information about foster parenting, domestic adoption or international adoption is available at and/ or FRUA stands for Families for Russian and Ukrainian Adoption and persons interested in its Central Valley/Bakersfield Chapter can contact its President, my wife Karen, at karen.dixon@alumni.duke.edu. November

20 The Probate / Estate Planning Report - Everyone Needs Medi-Cal Planning - Get Thee to the Medi-Cal Marines! I sure am glad I m a reader! I learn a lot of interesting things that way. I know people who don t subscribe to a newspaper and don t watch the news on tv either. I ve heard that ignorance is bliss but I d rather be stressed and know something than take a chance a blissful existence might be cut off by someone or something I failed to heed when it could be avoided simply by staying fairly wellinformed. Hence, I noticed an interesting headline in a recent issue of the California State Bar newspaper. It read: Disability and long term care insurance offered. Now, you have to understand that I already have a long term care insurance policy. I hope I ll never need it, but it was and is a prudent thing to do, especially after reading the article. It states in pertinent part: According to the MetLife Mature Market Institute, the average private room in a nursing home cost more than $66,000 a year in Twenty-four hour care can cost much more. If inflation occurs at a five percent annual rate, that cost could grow to as much as $175,000 annually 20 years from now. Despite those staggering costs, fewer than 10 percent of American adults are covered by long term care insurance policies. The article continues on to reveal that the State Bar has an endorsed program for members and their families. You can get information about it at in Northern California, at in Southern California or online at calbar.ca.gov/memberservices. Okay, you ask, what does that have to do with Medi-Cal planning? A lot. If you want to provide an inheritance for your family, you need to do some estate planning that will protect your assets from Medi-Cal reimbursement rules and regs that will go after all your assets if you end up in long term care. With the great medical advances and what will undoubtedly occur in the medical field in the future, and despite any assisted suicide laws that might get through the Constitutional cracks, I m thinking there are a few of you out there that will live a lot longer than I d like to think about. But, despite that, I don t like the idea that your families may well be left with nothing because you lingered on in long term care. Don t just sit there.do something about it! What to do? Get thee to an attorney who specializes in Medi-Cal Planning. We have only a few in Bakersfield. And By Susan Salvucci they gave our Section a presentation in September entitled Medi-Cal Update Now I m not going to get into it all it was way too complex and the best I can tell you is that this is a very technical area in which one had best not try to dabble. The few, the brave, the local Medi-Cal Marines are Sharon Garrett, Dorothy Dicks Meyer, Larry Fields and Tim Swanson. Beyond that, I know of no other attorneys who have tackled this area of estate planning. Sharon tells me she intends to retire in 2 or 3 years and Dorothy tells me she plans to retire next year. That doesn t leave us many practicing in this area of law. Bakersfield has grown incredibly since I retired here in With the Old River Ranch project in the Southwest adding about 5600 more homes, we gotta get someone out there up and at em to help us all! I am, like some of you out there, a Baby Boomer caught between kids, grandkids and elderly parents. Mine are fairly healthy despite 80+ years of white bread, red meat and potatoes. Nevertheless, I have experienced fighting the good fight to get them to a lawyer in their home state in the Midwest to update their estate planning, including their version of Medi-Cal planning, just in case one or both of them linger on in a nursing home as did my Grandmother. She was in nursing home care for over 10 years just long enough for private pay to eat up any inheritance. That was a lesson well-learned. From experience, I bring to your attention that none of us know when or if we will be faced with the need for long term nursing care. Our Section s September speakers brought home again the fact that much can be done in the area of Medi-Cal planning. It s not just for people with few or no assets. In fact, what affected me most was the fact that Medi-Cal planning is needed most by those with much to lose to reimbursement rules and regulations! Do yourself and your family a huge favor and think about Medi-Cal planning now. 20 Res Ipsa Loquitur