Santa Barbara. Lawyer. Official Publication of the Santa Barbara County Bar Association May 2012 Issue 476

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association May 2012 Issue 476

2 Southern California Institute of Law Judge Kenneth Starr US Solicitor General 2007 Anthony Capozzi State Bar President Member, Judicial Performance Commission 2004 Hon. Bill Lockyer CA Attorney General 2003 Justice Paul Turner Presiding Justice CA Court of Appeal Los Angeles 1996 Justice Ming Chin CA Supreme Court 2006 Prince Zeid Ra'ad Al-Hussein President, Governing Body United Nations - International Criminal Court 2008 Justice Arthur Gilbert Presiding Justice CA Court of Appeal-Ventura 2001 Justice Norman L. Epstein Presiding Justice CA Court of Appeal Los Angeles 2010 Celebrating 25 Years of Legal Education in Santa Barbara & Ventura Counties Thanks To Our Commencement Speakers For Encouraging The Finest Traditions of the Legal Profession Hon. Tani Cantil-Sakauye Chief Justice CA Supreme Court 2011 w w w. l a w d e g r e e. c o m 2 Santa Barbara Lawyer

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4 Catherine Swysen President Sanger, Swysen & Dunkle 125 De La Guerra Street, Ste. 102 Santa Barbara, CA T: ; F: Donna Lewis President Elect Attorney at Law 789 North Ontare Road Santa Barbara, CA T: ; F: Scott Campbell Secretary Rogers, Sheffield & Campbell, LLP 427 East Carrillo Street Santa Barbara, CA T: ; F: Matthew Clarke Chief Financial Officer Christman, Kelley & Clarke 831 State Street Santa Barbara, CA T: ; F: Mack Staton Past President Special Projects Awards and Board Development Mullen & Hanzell LLP 112 East Victoria Street Santa Barbara, CA T: ; F: Marysol Bretado Events Attorney at Law 5733 Hollister Ave, Ste 4 Goleta, CA Santa Barbara County Bar Association Officers and Directors Christine Chambers Santa Barbara Lawyer Hager Dowling Lim & Slack 319 E. Carrillo St. Santa Barbara, CA Danielle De Smeth Liaison / Events Greben & Associates 125 E. De La Guerra St., Ste. 203 Santa Barbara, CA ; Fax: Naomi Dewey Santa Barbara Lawyer Hardin & Coffin 1531 Chapala St, Ste 1 Santa Barbara, CA ; Fax: James Griffith Bench & Bar Attorney at Law 1129 State Street, Ste 30 Santa Barbara, CA ; Fax: Sanford Horowitz Events SB Office of the DA 1112 Santa Barbara Street Santa Barbara, CA ; Fax: Gregory McMurray Bench & Bar Attorney at Law 1035 Santa Barbara St, Fl 2 Santa Barbara, CA ; Fax: Mission Statement Santa Barbara County Bar Association Brandi Redman MCLE Special Projects Attorney & Counselor at Law 1021 Laguna St Apt 8 Santa Barbara, CA ; Cell: Angela Roach Bench & Bar Relations University of California Santa Barbara Employee and Labor Relations 3101 SAASB Santa Barbara, CA Kelly Scott MCLE County Counsel of Santa Barbara 105 E Anapamu St Rm 201 Santa Barbara, CA ; Fax: Carl straub, jr. Bench & Bar FLIR Commercial Vision Systems Inc. 70 Castillian Dr. Goleta, CA ; Fax: Lida Sideris Executive Director 15 W. Carrillo Street, Ste. 106 Santa Barbara, CA T: ; F: The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary. Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2011 Santa Barbara County Bar Association CONTRIBUTING WRITERS Christine Chambers Eduardo Cue David K. Hughes David C. Peterson Niki Chopra Richardson Robert Sanger John J. Thyne III EDITOR Naomi Dewey ASSISTANT EDITORS Christine Chambers Lida Sideris MOTIONS EDITOR Michael Pasternak VERDICTS & DECISIONS EDITOR Lindsay G. Shinn PROFILE EDITOR James Griffith PHOTO EDITOR Mike Lyons PRINT PRODUCTION Wilson Printing DESIGN Baushke Graphic Arts Submit all EDITORIAL matter to with submission in the subject line. Submit all MOTIONS matter to Michael Pasternak at Submit all advertising to SBCBA, 15 W. Carrillo Street, Suite 106, Santa Barbara, CA phone , fax Classifieds can be ed to: 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association May 2012 Issue 476 Articles 7 Legal Aid Honors Hero for Justice, Judge Rogelio R. Flores, By Angela D. Roach 9 Restorative Justice Teen Court Serves High Number of Female Clients, By Eduardo Cue 10 Equal Access to Justice Campaign, By Niki Chopra Richardson 11 The Art of Persuasion, By David K. Hughes 12 ICC Delivers First Verdict, By Christine Chambers 13 Constitutional Requirements for Plea Bargaining, By Robert Sanger 16 Settlement Value: A Practical Guide, By David C. Peterson Sections 24 Verdicts & Decisions 26 Motions 28 Section Notices 30 Calendar About the Cover Brandi Redman, Senior Staff Attorney for the Legal Aid Foundation of Santa Barbara, assists a client. Legal Aid staff and volunteers work to ensure that low-income persons and seniors have access to the civil justice system in times of crisis. 19 James Anaya, Indigenous Rights Lawyer, to Speak at Two Local Events, By John J. Thyne III Jillian Rodgers-Locatelli, Teen Court Lead Case Manager, facilitates the Young Ladies Leadership Group and the Alcohol and Drug Awareness Groups for female clients. Kristine Pendon is Teen Court Program Manager. May

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

7 Legal Community Legal Aid Honors Hero for Justice, Judge Rogelio R. Flores By Angela D. Roach On May 11th, the Legal Aid Foundation will present the 2012 Richard Goldman Heroes for Justice Award at the fifth annual Heroes for Justice Dinner. The award honors those working towards equal access to justice in the Santa Barbara community. The Hon. Rogelio R. Flores, one of this year s award recipients, could not be more deserving. Judge Rogelio Flores is a shining example of a hero for justice. Legal Aid is honored to present the Richard Goldman Hero for Justice Award to Judge Flores, says Legal Aid Foundation Executive Director Ellen Goodstein. Judge Flores goal has always been to have a positive impact on the world around him. In high school he worked closely with his father, a social worker for California Rural Legal Assistance. Through volunteer work involving United Farm Workers, he was exposed to Spanish-speaking Latino legal aid attorneys working to improve the lives of migrant workers. Judge Flores was inspired, and saw first-hand how legal knowledge and training could be used to create positive change. Judge Flores still fondly remembers one of these inspiring attorneys, Philip Jimenez, who is now a law professor at Santa Clara Law. Judge Flores attended UCLA and then UCLA School of Law, graduating in He obtained his first legal job with Legal Aid Foundation of Los Angeles where he worked from 1979 to During his time as a legal aid staff attorney, Judge Flores says he was full of fire, working in East Los Angeles and handling immigration, labor, and welfare matters. When that position ended, Judge Flores moved to north Santa Barbara County. In January 1987, Judge Flores was appointed as the first court commissioner for the North Santa Barbara County Municipal Court. In 1997, he was appointed to the Municipal Court bench, and in 1998, he was elevated to the Superior Court. Judge Flores observes that over time our criminal justice system has not sufficiently evolved, recognizing that penalizing behavior by addicts or the mentally ill does not address the root cause of the behavior the individual s illness. He says that trying to repeatedly fix problems while ignoring the root cause of the problems is insane, invoking Einstein s definition of insanity as doing the same thing over and over again and expecting different results. This is especially true given the number of individuals with mental illness or addiction in the criminal justice system. Judge Flores observes that, eighty-percent of those in custody are addicts or alcoholics. This equates to significant dollars to taxpayers. Judge Flores saw a better way for individuals entering the criminal justice system and the community as a whole: collaboration with health professionals, law enforcement and community programs to treat the root cause of an individual s disease through incentives and sanctions. The collaborative justice approach is put into practice through various collaborative courts in Santa Maria, including the Substance Abuse Treatment Court-SATC (Drug Court), the Mental Health Court, the High Risk DUI calendar, and the newly formed Veteran s Treatment Court. Among the collaborative justice programs successes is Drug Court, celebrating its sixteenth year in Santa Barbara County. Drug Court involves an eighteen month program Judge Flores describes as a blend between jail and treatment. The program includes medical treatment along with advice on how to obtain housing, schooling and jobs. There have been more than 1,000 Drug Court graduates in Santa Barbara County, and the majority of those graduates remain drug free. Judge Flores describes the satisfaction of seeing former Drug Court graduates now working as part of the Drug Court team as counselors and program managers. The Mental Health Court has also proven successful. This Court, for individuals on probation with a mental health diagnosis, has 50 to 100 individuals participating at any given time. The Mental Health Court ensures that the participants receive the mental health services they need. New this year is the High Risk DUI program, with DUI offenders who have been convicted of their second or third DUI. The program ensures a probation officer that is dedicated to the individual, who conducts frequent home visits and alcohol checks in addition to frequent court review hearings. Judge Flores was also instrumental in creating the first Veteran s Treatment Court in Santa Barbara County. Judge Flores describes this Court as a labor of love, because his two eldest brothers are Vietnam veterans. Since its inception in November 2011, the Veteran s Treatment Court has grown to include 30 participants. The Court s goal is to connect veterans with Veteran Administration services. The VA has assigned a case worker who attends the Court Continued on page 20 May

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9 Legal News Restorative Justice Teen Court Serves High Number of Female Clients By Eduardo Cue I n 1992, when Judge Thomas Adams introduced Teen Court to Santa Barbara, I don t believe he would have ever guessed that so many of the clients served would be female. Yet, the fact remains that in 2011, there were 211 (35% of the total number of clients) young women served by the Program. Restorative Justice Teen Court is a program of the Council on Alcoholism and Drug Abuse. It serves first time misdemeanor offenders aged who admit to their crime and go through the peer review court process. Teen Court s unique peer-review system allows young people the opportunity to gain insight into their own behavior by analyzing the criminal actions of others. Jurors benefit from their exposure to the legal system and learn to take responsibility for their own actions by holding others accountable. Samantha is a 16-year-old who is popular at school, plays sports, and always dresses to impress her peers. On a particular Saturday evening, she received a text at midnight from friends. They enticed her to sneak out of her aunt s house and meet up with them at the park. Samantha was staying at her aunts, as her parents were taking a weekend trip. She was talked into going to her parent s home to raid the liquor cabinet. A neighbor heard some suspicious noises coming from the house and called the police. Samantha and her friends were cited for minors in possession of alcohol. Over 60% of clients are referred to Teen Court for alcohol and/or drug offenses. Data collected from clients during the intake interview reveals that up to 72% use or abuse alcohol, and 64% stated use or abuse of drugs, with marijuana being the principal drug of choice. Teen Court has made program adjustments to address the specific needs of female clients. As a program, we recognize that young women are increasingly faced with pressures from the outside world. Today is not simply a race for the trendiest clothes, but for the hottest electronics, the amount of friends on Facebook, the edginess of posted pictures, and more. In the midst of Eduardo Cue, Judge Thomas Adams and Kristine Pendon all this there is another lifestyle for sale, shape-shifting and appealing to all walks; the allure of drugs, alcohol, and partying reaches the darkest corner of poverty and the loftiest ledge of affluence. Institutions of learning, intended to shape youth into their highest potential, are the place where drugs are most accessible. And the home-the place that is supposed to be a young person s safe haven - is often the most volatile and chaotic. Parents are ensnared in their own drama or in the clutches of drugs and alcohol, and fail to protect and guide their children, leading young people to entrust their bodies and minds to the aforementioned influences. For Samantha, and many young women like her, RJ Teen Court has been the safety net keeping her out of the Juvenile Justice System. Gender specific sentencing services provided by Teen Court, such as The Young Ladies Leadership Group, has helped her learn how to deal with these outside pressures. The Young Ladies Alcohol and Drug Awareness groups have helped Samantha talk about her personal substance use and to learn refusal and replacement skills. The Fighting Back Parent Program has helped her parents learn how to praise and support her while, at the same time, learn better skills to teach her how to maintain healthy and safe boundaries. The Restorative Justice Teen Court Program measures success in a variety of ways, including the number of clients that complete the program successfully (90%), and the number of clients that do not re-offend (89%). In Samantha s case she was able to gain sobriety and left the program with the confidence and tools to continue reaching her goals. I liked that it exposed my child to the legal system in a way that didn t demean or lie to her, but gave her a glimpse of Continued on next page May

10 Legal Community Equal Access to Justice Campaign By Niki Chopra Richardson Legal Community Cue, continued from page 9 what can happen should she travel the wrong path. I really appreciated how it helped the two of us discuss things that we likely never would have talked about. Ultimately, it opened the door and made us love and respect each other even more, said Samantha s mom. Samantha is now getting straight As, is in a leadership role in a school-based sport and is looking into colleges. It was Judge Adams vision and perseverance, twenty years ago, that led to the revolutionary court diversion program called Teen Court in Santa Barbara. Under the guidance of the Council on Alcoholism and Drug Abuse and with the collaboration of the County of Santa Barbara Superior Court and Juvenile Probation, RJ Teen Court today continues to be innovative with its approaches to assess teen needs and adapt program services that help these teens navigate through the challenges of adolescence. The program is always in need of attorneys to volunteer to preside as Judges on the Teen Court bench. Together we can make Santa Barbara County a healthier and safer place to live. More information on Teen Court can be found at Eduardo Cue is the Program Director at the Council on Alcoholism & Drug Abuse. L ike most nonprofits, this economic downturn hasn t been kind to us here at Legal Aid Foundation. We have struggled with reduced grant funding, late reimbursements from government contracts (some as long as eight months late) and, at the same time, we have seen a significant jump in the need for our services as socioeconomic levels are reset. To mitigate the heavy dependence on grants and contracts, both private and government, and to address the need for diversified income for the organization, in December 2011, Legal Aid Foundation launched an Equal Access to Justice Campaign. The campaign provides two ways to give: Champions of Justice members are our premiere donors who ensure the continuation of all that we have built together. Our Champions are those individuals and businesses who partner with Legal Aid by providing unrestricted gifts ranging from $1,000 - $10,000 per year for a period of five years. An investment in Legal Aid s Champions of Justice will ensure the sustainability of Legal Aid s legacy and its ability to provide services to the Santa Barbara County community. Patrons of Justice members are a group of special donors who understand that monthly support allows Legal Aid to help more people throughout the year at low cost. Our Patrons are those individuals and businesses who partner with us by providing recurring monthly donations (on a credit card) ranging from $15-$80 per month. Both of these member groups receive exclusive benefits including discounted tickets to Legal Aid events (Champions only), recognition in media and internal publications, as well as an invitation to an annual appreciation breakfast. The biggest beneficiaries however, are our clients who are the direct recipients of services as a result of these donations to Legal Aid. We are grateful to our Champions and Patrons for their generous contributions and the support it conveys. Champions of Justice Guardians of Justice Cappello & Noël, LLP Warriors of Justice Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP Reicker, Pfau, Pyle & McRoy, LLP Angels of Justice Allan Ghitterman, Ghitterman Ghitterman & Feld Penny Mathison & Don Nulty Sherry Melchiorre Hon. James Pattillo, Ret. Lessie Nixon Schontzler & Gordon Schontzler Amy Steinfeld, Brownstein Hyatt Farber Schreck D. William Wagner & Susan A. Wagner Visit for a list of all Patrons of Justice members. Please contact Niki Richardson at x109 or for information about how to participate. 10 Santa Barbara Lawyer

11 Legal News The Art of Persuasion By David K. Hughes Whenever trial lawyers congregate outside of the courtroom they invariably talk about their most recent cases and, given any chance whatsoever, will regale the listener with their success in the courtroom, real and imagined. Invariably, the conversation will also lead to a discussion of what trial techniques and tactics work best. And, if the conversation lasts long enough, perhaps aided by the lubricating qualities of a glass of Chateau Fleet Street, trial lawyers will debate what skill of the advocate is the most important factor to achieve success with a jury. Some lawyers will argue that it is the ability to communicate to a jury. Others will suggest that it is the physical presence of the attorney, combined with a strong clear voice. Others will argue that preparation is the most important factor and that it is the attorney who best knows the facts of the case whose client will eventually prevail. There are, of course, other possible nominations with respect to this interesting question. In addition, it could be argued that no single factor dominates and that it is the combination of an advocate s experience, skill, and knowledge of the case that results in one advocate being more successful than his or her contemporaries in persuading a jury. What then is the answer? The Greeks first engaged in the study of rhetoric some 2,500 years ago, culminating in Aristotle s classic work, The Art of Rhetoric. The Romans also studied rhetoric, and their primary successor to Aristotle as a teacher of rhetoric, was Quintillian. The Greeks and Romans defined rhetoric as the facility of discerning the possible means of persuasion in each particular case. Aristotle described three possible means of persuasion (or proofs in his words): ethical, emotional, and logical. Thus, to be successful, according to Aristotle, the advocate must be a competent judge of virtue and character; he must have a thorough knowledge of the emotions of his audience; and he must possess the power of reasoning. Aristotle s studies led him to conclude that the first method (proof) was the most important element of persuasion. He described it as ethos, i.e., the moral character of the speaker. What did Aristotle mean? At first glance, it is hard to accept the proposition that the moral character of the trial lawyer is the most important element in persuading a 12 person jury. But what Aristotle was talking about was the persuasive effect that results from what the jury thinks of the lawyer. The initial ethos formed by a listener would be based on the listener s knowledge of the advocate s reputation, on any prior contact with the advocate, and on the appearance and conduct of the advocate before he or she speaks. The initial ethos perceived by the listener can then change by what the speaker says and how the speaker says it. Thus, for example, the trial attorney who has no control over the applicable law or the facts of the case, can still affect what the jury perceives as ethos by the manner in which the case is presented. For Aristotle, there were a number of factors which contributed to the ethos of the speaker. The first and key component of ethos is the integrity of the attorney. i.e., if a trial attorney is perceived as trustworthy, his ability to persuade a jury will be enhanced. What practical things can a trial lawyer do to be perceived as trustworthy by a jury? Concede unfavorable facts. Do not take extreme positions. Do not take license with the truth, by overstating or misstating the facts in the case. Do not assert a fact as true that the jury is not likely to believe because of their common experiences. Do not belittle your opposition s position, but rather demonstrate to the jury the error in your opponent s position by use of the facts, analogies, and common sense. Speak to the jury about the values of truth and fairness, and of right and wrong. The second factor in ethos is knowledge. An attorney who is perceived by the jury to be intelligent and authoritative, and to know what she is talking about will generally be more persuasive than a lawyer who is not. There are a number of practical steps that any trial lawyer can follow to demonstrate knowledge to the jury. They include the following principles: Continued on page 20 May

12 International Law ICC Delivers First Verdict By Christine Chambers, Assistant Editor O n March 14th, the International Criminal Court (ICC) rendered its first verdict. Thomas Lubanga Dyilo was found guilty of conscription of children under the age of 15 in an armed conflict in the Democratic Republic of Congo. Lubanga was the first person to be arrested under a warrant from the ICC in March His trial was also the first to begin, in 2009, and to end with the recent verdict. He was charged with conscription, a war crime under article 8 of the Rome Statute. Lubanga was the commander of the Union of Congolese Patriots, and as such, in charge of its military arm, the Patriotic Force for the Liberation of the Congo. Lubanga was found guilty of conscripting and enlisting child soldiers in a civil war in the Democratic Republic of Congo from September 2002 to August Lubanga gave speeches encouraging the recruitment of child soldiers, and used children as his personal bodyguards. Trial Chamber I, consisting of Presiding Judge Adrian Fulford (U.K.), Judge Elizabeth Odio Benito (Costa Rica), and Judge Rene Blattmann (Bolivia), unanimously found Lubanga guilty on both counts. Angelina Jolie visited the tribunal to hear the verdict read. After the verdict, she stated, The delivery of the ICC s first verdict today is an important moment for the Court, for the Democratic Republic of Congo, and for the rule of law. Perhaps today s verdict of guilty provides some measure of comfort for the victims of Mr. Lubanga s actions. Most of all, it sends a strong message against the use of child soldiers. Pursuant to the Rome Statute (article 76(2)), the Court will have another hearing to sentence Lubanga and determine how victims will receive reparations. Lubanga has 30 days to appeal the judgment. There are 14 other cases currently being investigated and tried at the ICC involving conflicts in Kenya, the Democratic Republic of Congo, Uganda, the Central African Republic, the Cote d Ivoire, Sudan, and Libya. One hundred and twenty-one countries have joined the Rome Statute system, which established the ICC, including Guatemala on April 2, Christine Chambers is an associate at Hager Dowling Lim & Slack, and monitors developments in International Law for the Santa Barbara legal community. Daniel J De Meyer Financial Advisor Edward Jones ranked Highest in Investor Satisfaction with Full Service Brokerage Firms, Two Years in a Row Visit 125 E De La Guerra St Ste 101 Santa Barbara, CA Member SIPC x Connecting ATTORNEYS PARALEGALS LEGAL STAFF confidential employment placement Kathi 79 E. Daily Drive Suite #249 Camarillo, CA Ventura County Santa Barbara Cell Fax A. Whalen ~ President Lawyer Referral Service Santa Barbara County s ONLY State Bar Certified Lawyer Referral Service A Public Service of the Santa Barbara County Bar Association 12 Santa Barbara Lawyer

13 Criminal Justice Constitutional Requirements for Plea Bargaining By Robert Sanger T he Supreme Court of the United States issued two opinions on March 21, 2012 making it clear that counsel representing a client at the time of a plea bargain must do so in a constitutionally competent fashion. Prior Supreme Court cases held counsel to a high standard of competence when advising a client who accepted the plea bargain. These two cases addressed plea bargains that were foregone. None of this is a surprise to experienced criminal defense counsel. Yet, all too often, people without adequate advice of counsel either enter bad pleas or pass over good plea offers in favor of going to trial. In this month s Criminal Justice column, we will review what is required of the lawyer, as a matter of constitutional law. We will discuss the obligation of the prosecution to provide the information to enable the lawyer to meet this constitutional burden. Finally, we will talk about a new procedure that is being introduced by federal prosecutors before the ink is dry on these latest Supreme Court rulings. The Lafler-Frye Decisions The United States Supreme Court decided the cases of Lafler v. Cooper and Missouri v. Frye on March 21, In Lafler, the defendant was charged with assault with intent to commit murder, among other things. He faced a long possible sentence. He was offered a plea bargain and was willing to accept it. However, his lawyer advised him that he could not be convicted because he shot the victim below the waist, and said he should go to trial. He was convicted and got a much longer sentence. In Frye, the defendant was charged with a felony third offense for driving with a revoked license. The prosecutor offered a plea to a misdemeanor and a 90 day sentence. The defense lawyer did not convey the offer, and it lapsed. The defendant was arrested for another similar charge and agreed to plead guilty to a felony. He was sentenced to three years in prison. The court did not have any trouble accepting the lower courts findings that the lawyers had been incompetent under the Sixth Amendment as described in the first prong of Strickland v. Washington 466 U.S. 668 (1984). The Strickland test failure to meet the standard of practice of a competent criminal defense lawyer and prejudice to the defendant had already been applied to plea bargaining in Hill v. Lockhart 474 U.S. 52 (1985) and Padilla v. Kentucky 130 Robert Sanger S.Ct (2010). In Hill and Padilla, the defendant had entered a plea pursuant to incompetent advice of counsel. The Court acknowledged that the defendant had a right to competent counsel at the time of the entry of a plea and found that failure to meet that standard of competency required that the conviction be set aside and that the defendant be allowed to withdraw her or his plea and renegotiate or go to trial. The difference in Lafler and Frye, is that the defendant did not enter into a plea bargain, either by rejecting the plea bargain or letting it lapse, due to incompetence of counsel. The Plea Bargaining Paradigm Justice Kennedy wrote for the majority in both cases. He stated that 95% of all federal convictions and 94% of all state convictions are the result of guilty pleas. (Frye, slip opinion 7; Lafler, slip opinion 11). He quoted a Yale Law Journal article as saying that plea bargaining is not some adjunct to the criminal justice system; it is the criminal justice system. Thus, the Lafler and Frye cases simply acknowledge that incompetence of counsel that results in a plea bargain being rejected or lapsing without the client knowing about it is also a basis to set aside a subsequent conviction. Plea bargaining is a critical stage of the proceedings (the predominant part of the system by which people become convicted), and a person has a right to effective assistance of counsel at that stage. Justice Kennedy did not lament the use of plea bargaining. He recognized that it would not be economically feasible to try substantially more cases than we do. He also recognizes that plea bargaining results in people getting a benefit for admitting guilt and a means by which they can do so, if they wish. Not everyone agrees with Justice Kennedy on this point. May

14 Criminal Justcie Conservative organizations like the CATO Institute, as well as some liberal organizations, believe that plea bargaining is coercive and should not be used at all. Many professionals who work in the system, even if they accept plea bargaining, see people pleading guilty to things they might not have done because they feel threatened by the ominous power of the state. No one doubts that some defendants get a comparatively good deal by entering into a plea bargain, but many people plead to get out of jail, to avoid potential draconian punishments that might be imposed after an unsuccessful trial, or to save themselves the financial and emotional costs of trial. Nevertheless, plea bargaining is here to stay for the foreseeable future. The hedge against the abuse of plea bargaining is to have knowledgeable, prepared lawyers. In Lafler and Frye, as well as the earlier Hill and Padilla, that is exactly what the United States Supreme Court is requiring. Criminal courts should no longer be a place where a lawyer can just come in, nudge the prosecutor on the arm, and tell the client that she or he ought to take the deal. What is Required of the Defense Lawyer and the Prosecutor In order for a plea to be entered, it is now clear that defense counsel is constitutionally required to know the case. That is, the lawyer must know the actual law that applies, know the defenses to the charges, and fully appreciate the factual basis for both the charges and the defenses. This includes having a defense investigator thoroughly investigate the case, locate witnesses and collect defense evidence. It involves hiring experts to consult on technical issues, testing or retesting evidence in issue, and being familiar with the technical and scientific aspects of the case. This also puts a burden on the prosecution to disclose all information that would be helpful to the defense lawyer in providing advice in a knowledgeable and competent fashion. While there has been some question about the duty of the prosecutor to disclose evidence at an early stage of the proceedings, the Lafler and Frye cases necessarily entail a heavy duty on the part of the prosecution to be sure that the defense lawyer has all of the information, including Brady material, that is necessary for the lawyer to competently advise the client and help the client decide whether or not to go to trial. Information as to the strengths and weaknesses of the case must be disclosed before a plea bargain is either accepted (Hill and Padilla) or rejected (Lafler and Frye). For instance, the failure of the prosecution to provide potentially exculpatory or mitigating evidence before a plea is entered should render the plea invalid. Similarly, failure to provide potentially culpatory or aggravating evidence before withdrawing a plea offer might make any subsequent conviction invalid. What Should the Courts Do, if Anything? Lafler and Frye require one thing of the courts: to conduct hearings if a litigant argues incompetence of counsel that results in a conviction by trial (Lafler) or subsequent plea (Frye). Hill and Padilla already require a review of the acceptance of a plea bargain where there was incompetence of counsel. Now, there may be something further that the court may be asked to do or feels it is compelled to do sua sponte. While the involvement of the court may help insure that the prosecution has provided everything necessary for the defense to do its job, ironically, inquiries of the defense counsel or inquiries of the defendant may run afoul of the Fifth and Sixth Amendments. As of this writing, the United States Attorneys Offices for several districts have begun filing Lafler-Frye Motions. They seek to have a two tier process before a case is confirmed for trial. The first tier would involve an inquiry of defense counsel in open court, followed by a second tier in which the Court inquires of the defense counsel and the defendant in chambers. Although there has not been time to address these motions yet, they seem to raise serious issues as to invasion of the defense function and the right of an accused to simply require the prosecution to meet its burden of proof. Conclusion We will have to see how this all plays out procedurally. However, it is clear that lawyers handling criminal cases cannot simply see their job as horse trading. This is not news to most serious criminal defense lawyers whose clients either enter pleas or go to trial only after a thorough work-up of the evidence, the science, and the law, and only after they have been fully informed. Still, it may be a rude awakening to practitioners who feel that they can read the police reports, do minimal investigation and decide (with or without fully informing the clients) as to whether to plead out or go to trial. Hopefully, these new cases will help assure that defendants receive the full assistance of counsel at this critical plea bargaining stage. Robert Sanger is a Certified Criminal Law Specialist and has been a criminal defense lawyer in Santa Barbara for over 38 years. He is a partner in the firm of Sanger Swysen & Dunkle. Mr. Sanger is an Officer of California Attorneys for Criminal Justice (CACJ) and is the Co-Chair of the CACJ Death Penalty Committee as well as a Director of Death Penalty Focus. 14 Santa Barbara Lawyer

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16 Legal News Settlement Value: A Practical Guide By David C. Peterson Determining settlement value can be as elusive as trying to corner a cat. Parties and their attorneys seek to assess verdict value in order to determine settlement value. The person having a vested interest in the outcome, however, is less likely to be realistic in determining potential verdict values. One cannot predict with certainty the impact on a jury or judge of particular witnesses and evidence. Facing such an unknown, our human nature primes us to create favorable scenarios. The best example of this phenomenon was portrayed in the movie, The Christmas Story. The featured principal, a young boy, desperately wanted a bee-bee gun for Christmas, but his mother repeatedly told him no you ll shoot your eye out. His teacher gave the class an essay assignment about what they wanted for Christmas. The boy just knew if he received an A on his paper, his mother would give in. While enthusiastically writing his essay, his teacher appeared vividly in his mind, glowing over his paper and giving him an A+++. But when his paper was returned he saw a C- and the words you ll shoot your eye out. We cannot rely completely on what we imagine will occur at trial. For example, when several hundred attorneys were asked, pretrial, what they expected at trial, almost half failed in their predictions. And length of time in trial practice apparently did not enhance the ability to predict outcomes. (E. Loftus, Insightful or Wishful: Lawyers Ability to Predict Case Outcomes). One must have confidence to be a successful lawyer. Overconfidence, however, creates problems in adequately serving clients. A loss can be shaken off by a lawyer. Not so with a client. They have one case and expect they are in capable hands when their attorney advises them concerning potential settlement. They can be pleased by flattering, upbeat statements about their case. However, establishing unrealistic expectations creates more serious problems later when clients see reality late in the litigation or experience the walls caving in during trial. If clients learn their attorney knew or should have known their case was not as represented to them, they will be unhappy, at the least. At worst, a claim for malpractice may arise. In the case of Charnay v. Cobert (145 Cal. App.4 th 170 [2007]) the appellate court (Second Appellate District) overturned a lower court ruling and upheld a client s right to sue their lawyer when she was led through expensive litigation ending in financial disaster. No longer are attorneys able to rely completely upon the opinion or judgment defense. Lawyers cannot be expected to accurately predict outcomes as a scientist who knows two parts oxygen and one part hydrogen creates water. But they should be able to adequately weigh risk versus expense for a client. Percentages are best used in efforts to predict outcomes. For example, an established rule of thumb is that a twentypercent chance of a poor result exists in nearly all cases, especially in jury trials. The percentage goes up as aspects of the case are highly contestable, such as witnesses giving conflicting testimony, including expert witnesses, or where general damages are sought. A number of attorneys use neutral third parties to assist in evaluating their cases. Focus groups, have been popular, but expensive. Individuals representing an area s demographics are hired to see a mock trial of the case or a portion of it and then give their opinions. Judges, attorneys acting as neutral evaluators, and mediators are also utilized to help determine settlement value. Attorneys should be wary of opinions from friends or colleagues or opinions based upon partial or slanted facts and law. In looking to others to help, it is certainly better to use those with no stake in the case or reasons to have a slanted view. I went to trial once armed with confidence bolstered by the opinions of my partners and friendly colleagues. After losing, I could see where the weaknesses were. The rest of the story further demonstrates the primary points being made. Judge Fredman died suddenly and unexpectedly before signing the judgment decree. An identical, second trial had to take place, this time before Judge Kirkpatrick. He found in my client s favor. Unacknowledged weaknesses existed on both sides. Settlement value is rarely potential verdict value. It sets benchmarks for evaluation purposes. Compromise is expected for achieving a sure result without further costs, delay of result and ordeal to the client. Settlement value is measured within realistic parameters, from high to low. Successful negotiations take place within these parameters; settlement usually being in the middle. When settlement leans toward a high or low end, it is because of a number of factors, including: 1) strengths or weaknesses made more apparent during discovery or with mediation briefs; 2) financial imbalances of the parties; 3) attorney qualifications imbalance; 4) need of one side to 16 Santa Barbara Lawyer

17 Legal News avoid setting precedence; 5) concerns over unusually severe impacts of a poor result; 6) asset protection concerns; 7) insurance policy limits in personal injury actions; 8) potential for appeal; 9) client s personal risk aversion, and 10) Attorney s risk aversion. A key to enhancing settlement value is preparation and being on top of the case. Being lax, unprepared and not demonstrating strength lowers settlement value. And remember that settlements can be far more creative than allowable remedies from trial. This can enhance value to one or both sides. Be prepared with creative ideas where applicable. In determining settlement value, it s best to begin with establishing realistic parameters with respect to potential results at trial. Carefully review, with your client, these parameters including the prospect of a poor result and percentage of chance it may occur. Doctors have to do this even when risk percentages are quite low. Where the average risk of a poor result hovers at twenty-percent, clients need to understand what they face. Discover the client s true feelings about proceeding through trial and their plan in the event of a poor result. They need to know realistically what it will cost in money, time, ordeal and personal or professional impacts. Above all, put the client s interests ahead of your own. Some of the best trial lawyers have been sued for malpractice when rejecting settlement proposals, not having an adequate understanding with their clients regarding the above. David C. Peterson is a full-time mediator. After a 20+ year litigation career, he obtained a Master s degree and then LLM degree in Mediation from Pepperdine University School of Law, Straus Institute for Dispute resolution where he also teaches Mediation Theory and Practice. Named a 2012 Southern California Superlawyer! 25 Hayes Commercial Group Helping you serve your clients commercial real estate needs: Property valuations Property dispositions Property acquisitions Lease negotiations Experience. Integrity. Trust. Since 1993 222 E. Carrillo St, Suite 101 Santa Barbara, CA (805) May

18 rubenstein s o r e n s e n adr services Mediation, Arbitration Referee, Special Master We are proud to announce the opening of our new office at 211 E. Anapamu Street, Santa Barbara Ready to settle your case Real property Probate Business Family business and succession Employment Personal injury Judith Rubenstein, J.D., M.A., Psych. t dl Lol Sorensen, J.D., M.S.W t dl Securities offered through National Planning Corporation (NPC), member FINRA, SIPC. Advisory services offered through Mission Wealth Management, LLC (MWM), a Registered Investment Advisor. NPC and MWM are separate and unrelated entities. 18 Santa Barbara Lawyer

19 Legal Community James Anaya, Indigenous Rights Lawyer, to Speak at Two Local Events By John J. Thyne III O n May 21, 2012, James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Persons, is speaking at two events in Santa Barbara. Mr. Anaya graduated from Harvard Law in 1983 and currently serves as a Professor at the University of Arizona College of Law. In 2001, Mr. Anaya was lead counsel in the landmark case, Awas Tingi v. Nicaragua, a trial before the Inter-American Court of Human Rights in which that court first upheld the existence of land ownership rights of indigenous persons. Years after this historic decision, in 2009, the Nicaraguan government ultimately titled the land in dispute to this indigenous tribe of approximately 2000 people, 25% of whom were under the age of 5 due to devastating consequences of Hurricane Felix in The Awas Tingi tribe was able to negotiate with international commercial loggers engaged in deforestation of the disputed land via a trilateral contract between the government of Nicaragua, the international timber companies and the tribe, ensuring that the logging activities were conducted in a manner respectful to the community and the land. Mr. Anaya is in town to raise funds and awareness for Protimos, a network of international lawyers that trains young lawyers from marginalized communities to negotiate for local people s legal rights in and out of court. Protimos works exclusively in countries where the competition over natural resources is intense and poverty-stricken communities often have no one to advocate for them. Protimos organizes its efforts around three main programs: public interest law, intellectual property rights and biodiversity, and governance and accountability. The group works around the world by responding to requests from communities and NGOs (Non-Governmental Organizations) in cases where existing law can be used to prevent or rectify unlawful exploitation of local communities natural resources. Protimos believes that natural resource exploitation is a reality for those communities, but works to ensure that it is conducted in a manner that is equitable and safe so that it benefits that community financially and preserves their culture. Protimos is currently working in Southern Africa and is expanding its work across that continent and into other developing parts of the world. The most successful Protimos projects involve leaving the impoverished communities it serves in a far better condition financially and with longstanding legal representation from within the community to continue fair treatment by those wishing to negotiate with the indigenous persons. Mr. Anaya will speak at a May 21st, luncheon at the University Club of Santa Barbara and a dinner that evening at the Montecito Country Club. For more information, contact John Thyne at SFSB_SBLaywers_Inskeep 7/21/10 10:13 AM Page 1 Jerry Inskeep died in This fall, he will send local students off to college. J. Jerry Inskeep, Jr was an adventurer and a committed and caring philanthropist. He and his wife Jackie started a fund with the Scholarship Foundation to invest in students from their community. When Jerry passed away he left a $4 million bequest from his trust to the Inskeep Scholarship Fund. We salute Jerry Inskeep for his outstanding dedication to providing opportunities for deserving students. WHAT LEGACY WILL YOU LEAVE? You or your clients can establish a scholarship fund now or for the future. Contact Colette Hadley, Executive Director at (805) or Scholarship Foundation of Santa Barbara May

20 Legal News Legal Community Hughes, continued from page 11 of your trial presentation and argument so that the jury hears an understandable case presented in a coherent order. Spend sufficient time preparing every part of the case. Do not assert a proposition that you cannot prove. Do not read questions to the jury during voir dire, or read your opening statement or closing argument. Demonstrate your knowledge of the case by establishing eye contact with the jury and by not relying on notes. The third factor in ethos is sincerity. A trial lawyer is most credible when she can convey to the jury her personal belief in what she is saying. This factor is achieved by a few basic principles. First, a lawyer has to have a sincere belief in the theme of the case. A trial lawyer who cannot come to such a belief should settle the case or be prepared to be referred to as the attorney for the losing party. If you sincerely believe in your case, speak like you mean it. Be yourself. The fourth factor in ethos is what Aristotle called goodwill, or what we would call likeability. Put simply, if a jury likes the trial attorney, the jury is more apt to accept the attorney s arguments. Some trial advocates are naturally likeable while others will never remove the scourge of being obnoxious. For the rest of us in the vast middle, some practical tips will help every attorney s likeability factor. Be civil at all times during trial. This applies not only to the Judge and to all personnel in the courtroom, but to your adversary as well. Speak to each juror by name during voir dire. Never talk down to the jury. Remember that the jury is always watching you, even during jury breaks outside of the courtroom. Each of the above factors contributes to the ethos of the trial lawyer. In sum, they make a powerful tool of persuasion. I will leave it to the reader to decide if Aristotle was right-whether ethos, more so than emotion or reason, is the most important element of persuasion. Roach, continued from page 7 proceedings weekly and works directly with individuals to get them the care and services they need. On a national and international stage, Judge Flores has served as a consultant with the Department of State and the National Drug Court Institute. In 2009, the White House Office of Drug Control Policy asked him to join a team of drug court experts from the United States to help start a Drug Court in Mexico, and he flew to Monterrey, Mexico to train Judges, District Attorneys and Public Defenders. One of the participants, an Attorney General from Durango, was recently assassinated. Despite setbacks, the Mexican drug court has graduated 20 participants thus far. Judge Flores work has affected so many lives that he cannot walk down the street without individuals coming to him to describe their progress or say thank you. Every week I see people working, with their kids, and hear their stories of success, he says. Certain examples stand out. Judge Flores recounts the story of a cable truck screeching to a stop in front of his vehicle while vacationing in Cambria. The driver jumped out of the truck and ran to Judge Flores to hug him. He had last seen Judge Flores six years before in drug court, and had since remained sober, began working, and reconciled with his wife and children. Judge Flores most memorable experience on the bench occurred 22 years ago, but remains with him today. A 19-year-old man who had a blood alcohol level of nearly.46 at the time of his DUI appeared before him and realizing the man needed help, the judge worked to find him a residential treatment center. Over a year later, the man returned with a one-year coin from Alcoholics Anonymous to show he had been sober for one year. You saved my life, he told Judge Flores. To this day, Judge Flores keeps this coin at his bench and looks at it each day. Judge Flores has spent decades working to save and improve the lives of individuals in our community and ensure our citizens are treated fairly and appropriately. Congratulations to Judge Flores who richly deserves the 2012 Heroes for Justice Award. No Courts, No Justice, No Freedom: Law Week May 3, 2012 A luncheon featuring keynote speaker Jon Streeter, President, State Bar of California, on the challenges facing California Courts and the practice of law. To RSVP or for more details, please 20 Santa Barbara Lawyer

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