CalAppNews. California Appellate Defense Counsel. A Keynote Conversation with Justice Liu. Everything Changes. President's Column: by Meredith Fahn

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1 CalAppNews California Appellate Defense Counsel Vol. 27, No. 1 Spring 2015 President's Column: Everything Changes by Meredith Fahn Keep your eye on the long view. This was Justice Liu s advice during his visit with us as distinguished guest speaker at the CADC 2015 statewide conference and seminar. Coming from someone else, these words might have fallen flat as platitudes. But it meant the world to us coming from Justice Liu. He had just told us his story of getting the call from Governor Brown s aide literally the day after Congress blocked President Obama s nomination of him for the Ninth Circuit Court of Appeals; and of his process of applying to be a justice of the California Supreme Court, complete with two interviews by the Governor and his dog. Justice Liu s spirited storytelling amused us and drove home the point that we never know when the closing of one door leads to the opening of another. And how fitting, with so many animal lovers among us, that this apt example involves a dog. Time has been quite the jester. What a relief it was to laugh together on March 13, 2015, led by Justice Liu with his story. After all, times have been dim for the indigent and their appellate lawyers. It was a confluence of forces marked by so many turning points. There was the passage of AEDPA, Three Strikes, and, less obvious but perhaps equally profound in its impact, the Tax Reform Act of The resulting trickle-down effect was not good for the people we represent. It is no wonder that so many of our clients feel disenfranchised and hopeless about even trying to make it in the straight world. And it is not easy to tell them that what we offer with our continued on Page 2 A Keynote Conversation with Justice Liu by Kyle Gee and Caitlin Christian On March 13, 2015, at the Annual Conference and Seminar in Redondo Beach, CADC had the distinct honor of hosting California Supreme Court Associate Justice Goodwin Liu as our keynote speaker. As with Chief Justice Cantil-Sakauye at the 2012 Annual Meeting, the format was relatively informal, with questions being posed by two CADC members. Justice Liu s responses were gracious, humorous, and insightful. He was generous in sharing a range of forthright views about the Supreme Court and how counsel might best prepare to bring issues before the court. For those not familiar with Justice Liu's personal history, the Internet reveals that he grew up in Sacramento, obtained an undergraduate degree from Stanford, obtained a post-graduate degree in philosophy as a Rhodes Scholar at Oxford, and attended Yale Law School. Among other positions, he clerked for Justice Ruth Bader Ginsburg on the United States Supreme Court, before becoming a Professor of Law at Boalt Hall. He is married with two children. Justice Liu described his experience when first contacted by the Office of the Governor regarding a potential appointment to the Supreme Court. At his continued on Page 3 CalAppNews Spring 2015 Page 1

2 CalAppNews * Spring 2015 California Appellate Defense Counsel 4470 West Sunset Blvd., PMB 708 Los Angeles, CA President: Meredith Fahn Newsletter Editor: Randi Covin Newsletter Design & Production Assistant: Sabine Jordan Proofreader: Alex Coolman CADC is happy to print submissions from members and others. The opinions expressed in CalAppNews are those of the authors and are not necessarily shared by CADC, its Board of Directors, or its members. The Mission of CADC is to improve the professional lives of appointed appellate and post conviction counsel and to promote the fair administration of justice. In addition to providing direct member benefits like our website, discussion forums, brief bank, annual conference, local chapter meetings, and this newsletter, CADC lobbies for the interests of its 400-plus members in the judicial and legislative branches of state government. For more information about membership, please visit IN THIS ISSUE: President s Column...1 Keynote Conversation with Justice Liu... 1 The Burbank Award...3 Conference Dependency Program...4 Introducing Sabine Jordan...4 More Conference Highlights...5 Compensation for Panel Attorneys...6 Conference Photos... 8 & 9 You Don t Tweet Yet?...14 President's Column, continued from Page 1: appeals represents a slim chance and, more broadly, might simply be light for the cracks. As explained by Leonard Cohen in his song Anthem: Ring the bells that still can ring Forget your perfect offering There is a crack, a crack in everything That s how the light gets in. Everything changes, even the horizon. For us, Justice Liu embodies a vibrant ripple of dissent. He helps us see that the air is ripe with potential. The CADC Appellate Justice Committee seized that potential in filing an amicus brief in support of the petition for a writ of certiorari in Jackson v. California, SCOTUS no In the underlying case, People v. Jackson (2014) 58 Cal.4th 724, Justice Liu wrote a dissent that, among other points, called attention to common misapplication of the standard of prejudice prescribed for federal constitutional error in Chapman v. California (1967) 386 U.S. 18. In our amicus brief, CADC further developed that point. We argued in Jackson that there is widespread disregard for Chapman s requirement that the State bear the burden to show that federal constitutional error is harmless. Certiorari was not granted but we are not discouraged. On the contrary, we are fortified by the refreshment of the horizon. Our amicus brief stands waiting in the CADC briefbank. It is a matter of public record, having been filed September 12, 2014, in SCOTUS no Jackson v. California was the first but by no means the last time that CADC and its members will make use of the logic and force of this argument. We have a strong Amicus Committee, a visionary Appellate Justice Committee, and more than 400 lively-minded, razor-sharp members whose participation is crucial in assisting these committees and their individual projects. Together, we stand poised to act when another opportunity might come our way, even or maybe especially when it comes in the seemingly limited power of a dissenting opinion. We asked Justice Liu on March 13 what to do when oral argument does not go so well, and what words of wisdom he has for the fledgling attorney. Justice Liu was almost apologetic in reminding us of just the basics : to anticipate the hardest questions; be prepared to answer directly in a relaxed tone; take care to eliminate hostility and indignation from one s own expression. Listening to Justice Liu s review of the basics felt inspiring and fresh for everyone that day. Our ears, minds and hearts were open; we received the great young jurist s encouragement with honor and pride; and in that hour, I think every one of us felt new. CalAppNews Spring 2015 Page 2

3 A Keynote Conversation continued from Page 1: first meeting with Governor Brown also attended by the Governor's wife and "top aide" Ann Gust, as well as "First Dog, Sutter" -- the Governor started with a question regarding Justice Liu's views on "the basis of law." This question led to a two-hour discussion of natural law, the "social contract" theory, and the philosophies of Locke and Rousseau. Following his second meeting with Governor Brown, which was much the same, Justice Liu went on vacation with his family to Maine. He received the call offering him appointment while in Maine and recalled completing the stack of paperwork needed to process his appointment while sitting in his car outside the local one-room public library - the only place in town with Internet access. From these modest beginnings came his formal appointment and swearing-in ceremony in Sacramento in September Justice Liu described some of what he has learned about the court and about his adjustment to it over the past three-and-a-half years. He explained that the California Supreme Court and other state supreme courts are "conservative with a small c." Justices develop, as does the law, with an eye towards the long horizon, moving slowly, cautiously and incrementally over time. Justice Liu noted that the California Supreme Court historically has had a high percentage of unanimous opinions. He observed that high-profile judicial disagreements, including those at the United States Supreme Court, can be misleading as to their frequency. While one of the values of unanimity might be moderation and restraint in the opinion's language, a counterbalancing consideration might be that too much compromise will obscure the court's meaning. He noted further that an opinion with a dissent has the same precedential value as a unanimous opinion. continued on Page 10 The Burbank Award The 2015 Burbank Award for exceptional service to CADC goes to our recently retired Webmaster Sachi Wilson! Acting Past President Linda Conrad presented the award and Treasurer Jeralyn Keller accepted it on behalf of Sachi, who could not be there. The Saturday lunch crowd gave Sachi a standing ovation, roaring with appreciation for all her help to the organization and individual members. Sachi has made tremendous contributions to CADC over many years of service. She was instrumental in creating the new brief bank as well as the new website, bringing CADC into the 21st century. We could not have done it without her and, luckily for us, she continues to help with ongoing technological improvements. Thank you Sachi! CalAppNews wants to hear from you! We welcome submission of letters, photos, drawings, articles, poems, opinion pieces, and interesting transcript excerpts. We suggest you check with the editor before writing a piece for submission in case someone else beat you to it. Please send submissions and proposals to CalAppNews Spring 2015 Page 3

4 The Conference Dependency Program by Alexis Collentine Trends in Dependency Thanks to Region 3 CADC Director Caitlin Christian for putting together a terrific dependency program for the conference this year and thanks to all the great speakers. Here are some observations from each session. Though the group agreed that no one had been seeing it in appellate records yet, a new approach to risk assessment called the Signs of Safety model is becoming more widely used. And why is a social work assessment tool important to appellate practitioners? As Alice Shotten said, The more you understand the social worker s perspective, the better briefs you will write. Carolyn Levenberg presented on this model, which is meant to reduce the authoritarian position of the worker and be as meaningful to families as it is to social workers. Among other things, the social worker must tease out what are risks and what are merely complicating factors, for example, not assuming that a lack of information is a risk. Throughout, the focus should be as much on the family s strengths as on the dangers or harms to the child. Ms. Shotten s presentation on marijuana use and dependency gave us an overview of this changing area of law. With a likely move toward the legalization of marijuana, and some parents already using prescribed marijuana, the risk assessment becomes more complicated. Cases successfully arguing a difference between use and abuse, such as Drake M., have highlighted the ways in which marijuana use was similar to prescription drug use. ICWA Placement Preferences The big news in the wild world of the ICWA is that there are new BIA guidelines! In the excellent materials associated with this presentation, Joanne Willis Newton helpfully bracketed any information that comes from the new BIA guidelines, so check that out. (See BIA Guidelines for State Courts (Feb. 25, 2015) 80 Fed. Reg <http://www.gpo.gov/fdsys/pkg/fr /pdf/ pdf>.) continued on Page 11 Introducing Sabine Jordan! 2015 conference attendees had the pleasure of meeting Sabine CADC's wonderful new Administrative Assistant. Sabine has 30 years of experience in Office Management & Administration. For the last 18 years, Sabine has specialized in Law Office Management and providing paralegal and other services and assistance to solo practitioners. She has worked with many panel attorneys and was delighted to meet many of us in person at the conference. We are just beginning to figure out all the ways Sabine might help CADC. You can reach Sabine by at Please Support the Lobbying Fund! CADC s lobbying activities are funded by a combination of membership dues and voluntary contributions from CADC members. To make a contribution, please go to and click the Lobbying Fund link on the Members' Menu. Or write a check payable to CADC Lobbying Fund and mail it to CADC, 4470 West Sunset Blvd., PMB 708, Los Angeles, CA CADC also gratefully accepts taxdeductible contributions to its general fund - just click Join or Renew and scroll down to the donation box or send a check made out to CADC General Fund. Thanks very much for your CalAppNews Spring 2015 Page 4

5 More Conference Highlights by Randi Covin We had a wonderful weekend at the Crowne Plaza, Redondo Beach, from beginning to end. Of course, the keynote conversation with Justice Liu was the highlight for many (see page 1) but lots of other terrific sessions contributed to a very successful conference. The Annual Meeting got us off to a great start under the strong leadership of CADC's new President, my dear friend and esteemed colleague, Meredith Fahn. We welcomed eight new directors five in the Bay Area! Nancy Brandt (Albany), Beth Campbell (Sacramento), Alexis Collentine (San Francisco), Lauren Johnson (San Diego), Eileen Manning-Villar (Pacifica), Gordon "Bart" Scott (Santa Rosa), Heather Shallenberger (Santa Cruz), and Allison Ting (Los Angeles). We thanked our departing board members for their service to CADC and encouraged them all to be "CADC Groupies," like Departing Region 1 Director Jasmine Patel - to stay connected and participate in CADC governance in whatever ways they can. Thank you and so long to David Annicchiarico (San Francisco), Stephen Greenberg (Nevada City), Jasmine Patel (San Francisco), Jessica Ronco (San Francisco), and Laurie Wilmore (Half Moon Bay). We were lucky to keep Alex Coolman as a Director when he moved from San Francisco to San Diego recently - Alex was a Region 1 Director and is now a Region 4 Director. We also managed to keep Cynthia Barnes (Region 2 Director), Reen Bodo (MCLE Coordinator), Caitlin Christian (Region 3 Director), Jeralyn Keller (Treasurer), Jill Kent (Webmaster), Chris Nalls (Region 2 Director), Steve Schorr (former Region 4 Director, now Secretary), Lisa Spillman (Vice- President), and Tonja Torres (former Region 2 Director, now Vice-President). We also gained (regained) another board member, Acting Past President Linda Conrad. Welcome back, Linda! CADC members and directors always enjoy lunch with the project directors on Friday. It is a great opportunity to chat in an informal setting, followed by the Project Directors Roundtable, ably moderated by CADC's Court and Project Liaison Marcia Levine, as always. This year we were pleased and honored to have with us Donna Hershkowitz, Director of Court Operations and Special Services for the Judicial Council of California. Discussion this year addressed e-filing developments, compensation claim processing, and turning down cases, among other topics. We really appreciate the project directors and assistant directors taking time out of their busy schedules every year to come speak to our members. After the Roundtable, CADC member and former CCAP Staff Attorney Beth Campbell gave a very informative and thought-provoking presentation on writing an effective petition for review. Beth recommended keeping your PFR very short pages and focusing on the necessity for review rather than the merits of the claims. She also recommended re-writing a much shorter, more focused statement of facts rather than just copying and pasting from the AOB or adopting the Court of Appeal's factual summary. An excellent sample PFR is included in Beth's conference materials, available on CADC's website (see 2015 plenary materials). Of course, it is difficult to write a really good PFR in the few hours allowed under the guidelines. And it is difficult to write a 10 page PFR with a short statement of facts in a big record case with multiple issues. But I found Beth's advice on how to write a good PFR very helpful and I intend to try to use her methods next time I have a potentially review-worthy issue. One of my favorite parts of the conference was socializing with members and guests after the terrific Friday sessions. After more than 20 years as a CADC member, I really cherish these opportunities to see old friends and meet new ones. I feel so fortunate to be part of such a friendly, supportive and generous professional community. And I really appreciate the opportunity CADC gives us to stay connected online and in person. continued on Page 12 CalAppNews Spring 2015 Page 5

6 Compensation for Panel Attorneys Moments in History by Gordon Brownell When CADC was founded in 1989, all attorneys who accepted appointments in California Court of Appeal cases were paid a flat rate of $50 an hour, regardless of the size and nature of the case or the experience of the appointed attorney. An increase in the hourly rate to $65, which had been approved by the judiciary just prior to founding of CADC, was implemented later in Gradual increases in the hourly rates have occurred over the course of CADC's history, in part because of CADC's active lobbying efforts, and also because of judicial and other institutional support. Equally importantly, there have been four fundamental changes and improvements in the manner and speed in which panel attorneys are paid. The focus of this article is a review of those four changes and how they have benefitted panel attorneys. But first, some background. And be ready for acronyms. In the beginning, paper ruled. As the 1990s began, all compensation claims submitted by attorneys in the court appointed counsel program (CAC) were filled-out manually by panel attorneys, with no software programs to assist them; the claims were then mailed to the appellate projects for review and recommendations; following their review of the claims, the projects then forwarded the claims to their respective courts of appeal, including the payments which were recommended by the projects, but which had not yet been approved; at the courts, the submitted claims were reviewed and then were either approved or sometimes cut (and very rarely increased) by either the presiding justice or a justice assigned to review the claim, under policies and procedures which varied from court to court. After approval by the court, the Courts of Appeal forwarded the claims to the Administrative Office of the Courts (AOC), where they underwent a final administrative review, and then were mailed to the State Controller; about a week after receipt of the claims in Sacramento, the State Controller would mail a paper check ( warrant ) to the panel attorney. The entire process averaged between 6-8 weeks for each claim, from the date a panel attorney mailed the claim to the appellate project, until the date the attorney received the paper check in the mail from the State Controller. The fiscal crisis that hit California at the start of the 1990s set change into motion. Chief Justice Malcolm Lucas appointed a committee, known as the Turner Committee, after its chair, Second Appellate District (Division Five) Presiding Justice Paul Turner. That committee conducted a statewide review of the court-appointed appellate counsel system and made various recommendations, leading to a number of policy and compensation changes, which were implemented in 1992, at the direction of Chief Justice Lucas. Later that year, Chief Justice Lucas established the Committee to Evaluate the Appellate Projects, which included both project and panel attorney representation, and which conducted a comprehensive cost-benefit analysis of the projectpanel system, which was then less than a decade-old. The work and recommendations of that second committee, commonly referred to the Strankman Committee (after its Chair, retired First Appellate District Justice Gary Strankman), led to its metamorphosis after a year into the Appellate Indigent Defense Oversight Advisory Committee (AIDOAC). Along with the creation of AIDOAC came the first major change in the manner in which courtappointed appellate counsel were paid, which was the the transfer of the authority to approve compensation awards from the courts to the appellate projects. The shift of compensation approval from the courts to the appellate projects was accompanied by a new institutional role for AIDOAC, which now oversees the CAC program, including the compensation process. This oversight role includes the quarterly random auditing of final claims approved by the projects and the development of statewide consistency in the application of the compensation guidelines, something which was lacking in the prior system, when claims were reviewed and approved by different appellate courts and justices, with no statewide consistency at all. The change in the compensation approval process recommended by the Strankman Committee and AIDOAC speeded up the payment of claims to panel attorneys by several weeks. Under the leadership of the current AIDOAC Chair, Justice Herbert Levy from the Fifth Appellate District, and his predecessor, retired Justice Rodney Davis from the Third Appellate District, AIDOAC has become a key leader in the CAC program, helping coordinate CalAppNews Spring 2015 Page 6

7 Compensation for Panel Attorneys, continued: the different roles which the various components of that system -- the judiciary, administrative judicial management, the appellate projects and the panel -- all perform. Scene change. In 1993, under President Steven Temko, CADC hired its first lobbyist, initiating the organization s formal engagement in legislative activities in Sacramento. The CADC lobbying program was coordinated for a number of years by Wes Van Winkle, former CADC President and past AIDOAC member, who worked with three different lobbyists and one paid legislative advisor, who were retained by the organization during the 1990s. In 1994, CADC unsuccessfully sought an increase in hourly compensation for all court of appeal counsel from $65 to $73 and an increase in compensation for appointed attorneys in capital appeals from $75 to $95. The measure failed in the state Senate. The following year, the Legislature approved an increase for capital counsel, but again balked at an across-theboard increase for court of appeal counsel. After the 1995 compensation defeat, CADC pivoted its approach and sought approval of what would become the second significant change in the CAC compensation process -- the adoption of a tiered compensation system. Originally proposed by CADC because it was cheaper (and therefore more politically palatable) for the state to increase compensation for part of the CAC panel instead of all of it, the two-tier approach left compensation for some CAC attorneys at $65 an hour, but a new upper tier of appointed counsel was established, for which attorneys handling independent cases would be paid the higher hourly rate of $75. Despite some institutional resistence to the concept, as well as unhappiness among members who did not immediately benefit from the change which CADC was advocating, the two-tier system was adopted. In 1996, with the support of all the institutional players in the system -- the Chief Justice and APJs, the AOC (under the guidance of then-appellate Services Manager, Mary Carlos), AIDOAC, the appellate projects and CADC -- a three-tier compensation system was proposed. Under this approach, an upper tier of CAC attorneys would be paid $85 an hour for certain complex and long-record cases; a large mid-tier of attorneys would receive $75 an hour for independent cases, and attorneys who were appointed on an assisted basis would continue to receive the $65 hourly rate. CADC also sought to achieve an increase to $125 an hour for capital counsel that year. Though the increase in capital compensation was passed by the Legislature, the three-tier system for attorneys in the courts of appeal was not. After several years of struggle, the three-tier compensation system, with its attendant increases in the hourly rates for most panel attorneys, was finally approved in Though that achievement was followed by a hiatus in which hourly rates would not change again for seven years, there were two more significant changes to panel attorney compensation which took place in the first half of the following decade In 2002, in what presaged the move towards electronic transmittal of court submissions and filings, the electronic submission of compensation claims began with the arrival of eclaims. Conceived and created by Jay Kohorn, the Assistant Director of CAP-LA, with the support of that project s Executive Director, Jonathan Steiner, eclaims represented another sea change in CAC compensation policies and procedures. Jay has described the development of eclaims as a huge undertaking which took several years to complete as his special 12-step program. Jay Kohorn cooking up eclaims program! Not many years ago, the CAC system did not even have computer-generated forms that could be printed-out, much less any software for panel attorneys to use in creating a compensation claim. All claims had to be filled out by hand or typed by panel attorneys, who had to do all the math themselves, manually adding up their time and costs. Because the preparation of compensation claims was so tedious, many attorneys put off preparing and mailing their claims to the appellate projects. The AOC regularly had to ask the Legislature for more money, because the amount of funding needed to support the CAC continued on Page 13 CalAppNews Spring 2015 Page 7

8 Hats off to CADC's 2015 Conference Committee: Chris Nalls (Chair), Cynthia Barnes, Caitlin Christian, Jennifer Hanson, and Tonja Torres! Conference photos by Leslie Bohm, CalAppNews Spring 2015 Page 8

9 CalAppNews Spring 2015 Page 9

10 A Keynote Conversation, continued from Page 3: Justice Liu emphasized that a dissent should be drafted respectfully and with sober expectations as to what can be achieved. However, he also noted the value of dissents as potentially influencing the court s thinking over time and legitimizing the stance of the losing voice. Justice Liu was asked about the Rule 8.500(b) criteria for grants of review, in terms of whether they are unduly restrictive. In his response, he explained that the Supreme Court is not an "error corrections" court except in capital cases and that the court's focus is on broader legal and policy questions. He reminded us that, given the Supreme Court's very heavy capital caseload, the practical fact is that the Courts of Appeal are the court of last appellate resort for a high percentage of litigants, criminal and otherwise. As for what the court's position might be on glaring, non-review-worthy errors in, or omissions from, Court of Appeal opinions, Justice Liu did mention a few remedies that may be used, such as depublication orders, stressing that depublication is used for reasons other than making law. He also mentioned grant and remand orders, although they are ordinarily utilized when new cases have been decided by the United States or California Supreme Court. He concluded that, while the Supreme Court is not an errors correction court, there are potential avenues for obtaining some relief. In response to a question regarding when and how the court might be convinced to overrule a prior decision, Justice Liu responded that one might refer the court to "subsequent developments," including subsequent cases from the same court which suggest erosion of the law or policy underlying the prior decision. He also suggested examination of other state Supreme Court cases on the same subject, to determine if an emerging "majority view" is inconsistent with a prior decision. And he encouraged counsel to examine the impact of overruling a prior decision and the potential effect on parties who have previously and justifiably relied on the case as precedent. However, he also explained that the court continues its long-standing commitment to stare decisis, and the chances are not great that the court would overrule a prior decision. As for suggestions regarding oral argument, Justice Liu strongly endorsed attending Supreme Court sessions to observe the procedures and arguments. One would become more comfortable with the court's processes and learn something of the court's personalities, which should make oral argument less intimidating when confronted personally. He noted that generally where oral argument goes wrong is not a matter of substance but of style, suggesting we listen and observe to see what works and what doesn t. He admonished us always to answer a justice s question at oral argument. He urged us to listen to the questions from, and colloquy among, all of the justices, with a goal of identifying the tipping point of the case from the court s perspective, in order that our argument will have the proper focus. During Justice Liu s discussion of the value of a Reply Brief in the Supreme Court deemed by him the "most important brief" he explained that the Reply Brief provides an appellant with the opportunity to look at the positions of both sides, with recognition that there is rarely a clear answer to legal questions. This enables an appellant to contrast the respective positions and to focus on why the appellant should prevail. Finally, Justice Liu's advice to "fledgling" appellate counsel would have value for us all. He reiterated his suggestion that we take time to "observe": attend oral argument and read the briefs of more experienced counsel. He added a particular exhortation that we focus carefully on the quality and structure of our writing, with special emphasis on the need to encase within our legal arguments and case citations a logical core, to address not only why precedent supports us but why the better course over time is for the court to adopt our position. In sum, Justice Liu's time with us was enjoyable and invaluable, and we came away impressed and appreciative. CalAppNews Spring 2015 Page 10

11 The Conference Dependency Program, continued from Page 4: In her presentation, Ms. Newton focused on the ICWA s placement preferences. Though she underscored that violations of the ICWA s preferred placements do not mean the case will be invalidated, we can argue invalidation via a violation of the active efforts requirement to locate a preferred placement. Within these preferred placements, extended family includes both Indian and non-indian family members, and if the children are placed in a lower preference, such as foster care, the agency must continue the search for a higher preferred placement, such as with extended family. When the preferences are not followed, look for whether there was good cause. Some recent developments to be aware of: there is now broader leeway to place a child with a relative despite that relative having criminal history and the Existing Indian Family Doctrine has, hopefully, been put to rest by the U.S. Supreme Court s declining to adopt it in the recent case of Adoptive Couple v. Baby Girl (2013) 133 S.Ct Parentage Did you know there are six types of fathers for the purposes of dependency cases? Well, there are, and if you have some trouble keeping them all straight, don t worry, the courts do too. Fortunately, Jan Sherwood is on it and, after her presentation, we all are too. The six types of fathers are: alleged, presumed, biological, adjudicated, equitable, and Kelsey S. Note that though this area of law has historically concerned fathers only, the Family Code has been amended to be gender-neutral. Each type of father has different rights and duties, which are well-covered in the materials. A few things I learned: there cannot be a petition against an alleged father; an adjudicated father is not a presumed father, but such a finding does rebut a presumption of paternity in favor of another man; and when a person s own bad decisions precludes him from carrying out his parental responsibilities, he cannot be deemed a Kelsey S. father. Ms. Sherwood also recommended looking at the case law to see whether there is one that supports the type of parentage you re looking to argue. Court confusion equals fun with case law! Dependency Briefing Thomas Kallay led an interesting presentation on something we should all be keeping in mind as we write our briefs: the appellate court s perspective. In the body of the brief, the introduction should be more informative than argumentative, the statement of the facts should be sub-headed, and the argument section should contain the law that will dispose of the appeal. Throughout all of these, one of the goals is to keep the court attorney reading and another is to have such clear cites to the record and the case law that your brief is the one that the court attorney relies on. As for the combined statement of case and facts? Mr. Kallay thinks we should throw it out in favor of a separate statement that highlights the differing sources of information and thus denotes the weight that should be given to sources that include the court, the parents, and the attorneys. CADC Thanks Its Sustaining Members! Jean Ballantine Diane Berley Ron Boyer Philip Brooks Gordon Brownell Elizabeth Comeau Randi Covin Suzanne Evans Pat Ford Mark Hart Patricia Ihara David Kaloyanides Jeralyn Keller Leonard Klaif James Koester David Lampkin Mark Lenenberg Laini Millar Melnick Jonathan Milberg Christopher Nalls Robert Navarro Walter Pyle Brent Riggs Tracy Rogers Steven Schorr Patricia Scott Clayton Seaman Alan Siraco Lisa M.J. Spillman David Stanley Conness Thompson Allison Ting Meredith Watts Eric Weaver Laurie Wilmore Harry Zimmerman CalAppNews Spring 2015 Page 11

12 More Conference Highlights, continued from Page 5: The criminal program started off with a bang Saturday morning with FDAP Staff Attorney Richard Braucher, Christopher Hawthorne, and Maureen Pacheco on Miller and Caballero sentencing juveniles as adults and the Eighth Amendment. These knowledgeable experts summarized the developing law on juvenile sentencing, providing resources and information to help us ably represent our youngest clients. CADC members George Schraer and Laura Kelly took us step by step through the process of investigating, drafting, and filing a petition for writ of habeas corpus in state court. George and Laura explained, among many other things, when and where to file, how to gather supporting evidence, how to work with the different projects on habeas issues, and what federal habeas implications must be considered. Their outstanding program materials are available on CADC's website along with the rest of the criminal program materials. Like many conference attendees, I could not decide which late morning break-out session to attend - Technology: Hell and Salvation, with CADC Brief Bank Committee Chair Candace Hale and CADC Webmaster Jill Kent, or I Wish I Knew Then What I Know Now: How to Survive Your First Five Years on the Criminal and/or Dependency Panel, with Caitlin Christian, Jennifer Hansen, Nancy King, and Jasmine Patel. So I caught the first half of Technology and the second half of How to Survive. Both sessions (and their plenary materials!) were excellent and got rave reviews and requests for repeats next year (we'll see what we can do!). After lunch, Electronic Frontier Foundation Staff Attorney Hanni Fakhoury brought us up to date on the role of GPS tracking evidence in criminal prosecutions. He explained that police and prosecutors have done their best to keep the source of the evidence a secret to avoid judicial concerns about privacy and other issues. Thanks to EFF and hardworking defense trial lawyers, the secret use of electronic tracking evidence is increasingly being exposed and successfully challenged. Finally, CADC President Meredith Fahn and long time CADC member and beloved storyteller Charlie Khoury ended the criminal program with a lively and informative session on federal habeas concerns in our state court appeals. The time went by too fast and left me wanting more. My favorite part was when they talked about the recent videotaped oral argument in Baca v. Adams, where the Ninth Circuit panel questioned the Deputy Attorney General about the prosecutor's blatant misconduct and the efforts of the District Attorney and Attorney General to cover it up: To our delight, Meredith and Charlie had a surprise guest Patrick Hennessey, Jr. the heroic appointed appellate attorney who represented Baca in state and federal court and got a stipulated reversal as the result of the Ninth Circuit's outraged response to the prosecutor's misconduct. We closed the conference for the criminal side by presenting Pat with a CADC Superheroes T-shirt and a rousing round of applause. CADC's 2015 conference left me energized and enthusiastic about next year's conference in the Bay Area. Hope to see you there! POP QUIZ GUESS WHO THIS IS???? (See Answer bottom of Page 14) CalAppNews Spring 2015 Page 12

13 Compensation for Panel Attorneys, continued from Page 7: program was often under-estimated, in part because actual claims were submitted so slowly by many panel attorneys. With the advent of eclaims, procrastination in claim preparation dropped significantly. Much of the information that previously had to be looked up and manually entered by panel attorneys on the claim forms was entered by the appellate projects, utilizing information in their databases which could be generated before attorneys were even appointed to cases. That data, including information such as the nature of the appeal, original record length, key dates, counts of convictions and other items, could be uploaded by the projects directly onto eclaims. Most of the math was done accurately and automatically by eclaims. Particularly for complex claims, hours of attorney and appellate project staff time were saved. Because claims were submitted faster, the AOC was better able to make accurate budget projections. Changes have recently been made to the eclaims program and further ones are proposed. Electronic submission has evolved from an optional panel attorney choice to a CAC requirement. Appellate Defenders has recently created its own case management system and a Panel Portal for the electronic submission of claims to ADI. The significance of the creation of eclaims, and the benefits realized by panel attorneys and the entire system from the institutional move to the electronic transmission of compensation claims, cannot be overstated. The fourth major improvement in the CAC compensation procedure was implemented in 2006, after several years of lobbying by CADC (led by former CADC Vice President and AIDOAC member Jo Anne Roake and David Stanley, former CADC Court and Project Liaison and a current member of AIDOAC). That year, the AOC implemented a program in which panel attorneys could choose to have the State Controller deposit their compensation payments directly into their bank accounts by an electronic funds transfer (EFT), rather than continuing to receive paper warrants in the mail. For the attorneys who chose the new payment option, access to their funds was available to them several days sooner than under the older mailing of paper system. Together, these four institutional changes -- transfer of the claims approval process from the courts to the projects and the adoption of tiered compensation levels, eclaims and direct deposits -- have resulted in major benefits to panel attorneys. After seven years without a lobbyist, in 2005 CADC retained its current lobbyist, Ray LeBov, who had previously represented the Judicial Council on governmental affairs and legislative matters. Since retaining Ray, and with support from the Chief Justice, the APJs, AIDOAC and the appellate projects, panel attorneys received compensation increases which raised the three-tier compensation levels from $ to rates of $ over the course of a three-year period between Further increases in that rate have not been possible the past several years, due to the most recent state budget crisis and cuts to the judiciary. The statewide fiscal picture is on an upswing again. When the next, long overdue, increases in panel attorney hourly rates are achieved, and they will be, it will be another step forward in the ever-evolving CAC compensation system. There are improvements which still need to be made, but California has the premiere CAC appellate program in the country. Do you want a paper copy? If you are a CADC member, you received an electronic copy only of this issue of CalAppNews. If you are not a CADC member, you received a paper copy only. If you want to change the way you receive CalAppNews, please please give us the physical or address where you would like to receive future issues: Limiting paper copies of CalAppNews can save CADC 75% or more of its cost and help save trees! CalAppNews Spring 2015 Page 13

14 You Don t Tweet Yet? #GiveItATwy An Attorney s Opinion About Twitter by Lisa M.J. Spillman times you see tweets from advertisers. You can set up a Twitter account easily by going to Twitter.com or downloading the app onto your smartphone. Setting up the account and name is easy (mine is Lisa Jerde You do not have to use your actual name, but it is my experience that most professionals do. What I Use Twitter For. I do not use Twitter in the social sense I use Facebook. In my experience, an individual uses Facebook generally to see what his or her friends are doing, to post about what s going on in her or his life, or to post pictures of a child, a bruise or Katmandu. Perhaps some use Twitter for that purpose, but not me. If Facebook is my living room, then Twitter is my office. The other day, my five-year old and I were playing a game of If your family member were an apple, what kind would she or he be? I told him that he d be a Red Delicious because of his cute, rosy cheeks. He told me I d be a Granny Smith because I m old. (Note to self: Call my attorney to have the chap taken out of the will.) But his thinking me old got me thinking. I ve talked to a lot of lawyers lately about Twitter, and about whether they use it and why. Attorneys have told me: I m too old for social media (which I do not think is true and I don t really use Twitter for social purposes), I don t need more stuff to do (I hear you, but you might be missing out professionally), It s a waste of time (not if you use it right), I already do Facebook and they are all the same (they are not the same), You can t teach an old dog new tricks (sure you can, woof woof), and I don t need to post a picture of my sandwich (agreed, please don t, unless you want to have one delivered to me, then make it a Dagwood with extra bacon). So my point in this article is to convey that you re not too old or young for Twitter, and that it really can help your law practice. I ll tell you what Twitter is, what I use it for, what I don t use it for, what I use hashtags for and why, what benefit Twitter can have to a law practice, suggestions on whom lawyers and law firms might want to follow, and last, Twitter s revolutionary capacity for sociopolitical and corporate change. What Twitter Is. Twitter is a set of programs operating on the Internet linking people, news, blogs, companies, organizations, and causes. It is free to join and recently had an initial public offering, so at What benefit Twitter can have to a law practice. I follow people, blogs, or entities to quickly bring me news relevant to my practice of law. For example, when an opinion is published, legal bloggers immediately tweet about the decision, which aid me as an appellate attorney. I see tweets by Twitter users who tweet links to articles in a variety of areas of law. Sometimes, I find a tweet worthy of a retweet, meaning I resubmit that user s tweet to the Twitterverse and to my followers. Sometimes, I will reply to a tweet. Other times, I may tweet something I drafted, or find something online and tweet a link directly to another user, because I think that user would be interested, or tweet it using hashtags. What I Use Hashtags For and Why. Hashtags are fun. A hashtag is a set of characters or words strung together with a preceding #. So, for example, I would not tweet these, but when my kids finally fall asleep, I might feel #exhausted, or want to #PraiseGod. When I lose a case I might feel like I need to #ThrowInTheTowel or go to #LadiesNightOut. Hashtags can be used to draw attention to a user or a tweet, to raise awareness of an issue, or to promote a product or a service. They can be used to try to ensure your tweet is one of those that comes up when a search is run. So, for example, when an attorney writes a blog about criminal defense or beating a DUI charge, he might tweet a link to the blog with #DUI #KnowYourRights #Ventura POP QUIZ Answer: CAP-LA Assistant Director Jay Kohorn, circa 1975 CalAppNews Spring 2015 Page 14

15 You Don t Tweet Yet? continued: #Lawyer. An attorney writing wills and trusts might tweet a link to her blog about a new law regarding trusts and include #Willits #Attorney #Wills #Trusts. Creating a unique hashtag can make an issue, product or service go viral. Whom I follow. Anyone on Twitter could see whom I follow, but here are some of the law-related Twitter users @EsquireNation, Howard Above @WSJlawblog, I also follow a number of state and U.S. Congress people and other political figures. I follow numerous news organizations from around the world. To keep things fun, I also follow comedians to get a good @SteveCarell, and Stephen I also get a little spiritual, and follow Pope The Dalai and maybe even One thing I truly love about Twitter is what I see as its revolutionary capacity for sociopolitical and corporate change. Let me give you an example. It should come as no surprise that I do not think partially undressing and gyrating in front of a microphone is an appropriate way to make a video go viral. Nor is it appropriate in my opinion to spread the message that a woman should sex it up to make a video go viral. And apparently, I am not alone. During the 2014 Super Bowl, a company showed a commercial with a famous actress doing just that, and I loved the response by women and men across the globe, who directly sent that company tweets denouncing the commercial, and including the hashtag #NotBuyingIt. I love this hashtag for its literalness hashtaggers are giving the potential death knell I am not going to buy what you are selling because you screwed up. And an easy Twitter search of #NotBuyingIt reveals myriad other products, services, tweets, or programming that Twitter users are not buying, figuratively or literally. Where social pressure won t work, the bottom line just might. Twitter is also being used, second by second, to broadcast footage and reports by regular Twitter users of what is happening on the ground in #Ferguson #Paris #Venezuela and #Ukraine. Revolutionary, indeed. But if your feathers get ruffled, bear in mind that every tweet is forever public, even if you delete it. It won't appear on your page, but it still exists in the Twitterverse. So thieves and spies, future would-be employers, the Bar, your children, and the police may be watching. And speaking of the police, don't even think of tweeting while driving. Not only could you hurt someone, your tweet, and its time and date stamp, could end up being used against you in tort or criminal actions. And keep this in mind: in 2014 the California legislature was considering AB 1555 which would redefine vehicular manslaughter to include a defendant whose use of a cell phone while driving leads to the collision. So, all in all, I think Twitter can have wonderful benefits for attorneys. It certainly makes following legal news, decisions and analyses across the country and world intriguing, timely and fun. And it s not that hard or intimidating, even for a "Granny" like me. #GiveItATwy CalAppNews Spring 2015 Page 15

16 4470 West Sunset Blvd. PMB 708 Los Angeles, CA Not a CADC Member? Join Us! Join or renew your membership online at or fill out and mail this form: Name State Bar No. Address Telephone Criminal Dependency First-time member: $85 Regular member: $170 Sustaining member: $445 Retired member: $35 Lobbying Fund Contribution: $ Half of each dues amount goes to support CADC s lobbying efforts and is not taxdeductible. Make check payable to CADC. Return form and payment to: CADC 4470 W. Sunset Blvd., PMB 708 Los Angeles, CA CADC membership is not open to those affiliated with prosecutorial or law enforcement agencies.

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