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Consumer Attorneys of San Diego (entire contents of publication)
Consumer Attorneys of San Diego
2535 Camino del Rio South, Ste. 345
San Diego, CA 92108
Phone (619) 696-1166
Fax (619) 696-1294
E-mail casd@casd.org www.casd.org
CASD Officers and Staff
President, Sarah A. Havens
President-Elect, Natalie B. Holm
Treasurer, Matthew D. Clendenin
Secretary, Carree K. Nahama
Immediate Past President, Paula R. Brown
Executive Director & CEO Bonnie R. Benitez
Board of Directors
David Arreguin
Nathan G. Batterman
David S. Casey III
James M. Davis
Jordon R. Harlan
John J. O’Brien
Sean Manee J. Domenic Martini
Past Presidents
Paula R. Brown
Brian K. Findley
Benjamin J. Coughlan
Christopher C. Walton
Amy Rose Martel
Maria F. Kelly
Dana M. Grimes
James S. Iagmin
Brett J. Schreiber
Timothy G. Blood
Raul Cadena
Rebecca D. Lack
John H. Gomez
Joel R. Bryant
Scott Levine
Wayne Alan Hughes
Kenneth Sigelman
Gayle M. Blatt
Richard A. Huver
Robert J. Francavilla
R. Christian Hulburt
L Tracee Lorens
Benjamin C. Bunn
William Turley
Hon. Robert J. Trentacosta
William H. Naumann
Dennis A. Schoville
Thomas J. Warwick, Jr.
Deborah A. Wolfe
Steven M. Boudreau
Frederick Schenk
Cynthia Chihak
Anna Romanskaya
Benjamin I. Siminou
Kacie B. Vinel
Aran J. Wong
Harris I. Steinberg
Vincent J. Bartolotta, Jr.
Robert L. Grimes
Hon. Louisa S. Porter
Hon. Anthony J. Battaglia
Hon. Steven R. Denton (ret.)
Daniel R. Krinsky
David S. Casey, Jr.
Harvey R. Levine
Sheldon Deutsch
George P. Andreos
Maynard Kartvedt
Maurice V. Boudreau
Alan J. Ludecke
Hon. Sheridan E. Reed
C. James Jarboe
Gordon S. Churchill
Wesley H. Harris
Gaylord Henry
Ernest Fraley
Hon. Michael I. Greer (ret.)
John T. Popko
Irwin Gostin
Timothy Evatt
Louis S. Katz
Wallace E. Wolfe
Tom Golden
F. James Bear
Thomas E. Sharkey
George R. McClenahan
David S. Casey, Sr.
Benjamin J. Coughlan
Dana M. Grimes Benjamin I. Siminou
never Stand Alone… A Journey for the Future
Iwas born and raised in warm and sunny, Sherman Oaks, Ca. As a child I loved to dance, anywhere and anyhow. Life was a stage, and I loved performing. Despite my distaste for cold weather, one day in 1997, I strapped into a rented snowboard and fell in love. It was like dancing, but on jumps and handrails. By the following fall, I moved to South Lake Tahoe to attend community college at night, and ride during the day. Almost immediately, I was competing on the women’s professional slopestyle snowboard circuit and gaining sponsorship support.
After many years traveling, competing, coaching, and training year-round, I was ready to pass the torch to the next generation of kick-ass girls who were just slaughtering it out there. On to law school I went.
People often ask, “Wasn’t it hard to go from professional snowboarder to trial lawyer?” The answer is an easy, “NO!” It’s almost identical. Nothing beats the feeling of standing on top of your run, about to drop in, all eyes on you, legs shaking in fear and excitement, visualizing the countless practice runs in your head, laser focus, adrenaline pumping, wondering why you keep putting yourself through this, swearing that you’ll never do it again! Then you drop in and everything around you just stops, and you’re in your moment. And somehow, it’s absolutely silent. And then you land, and the world comes back, and you sit down and think…. Man, I love this! I can’t wait to do that again!
Like anything worth fighting for, the road from couch surfing snowboard bum to buttoned-up courtroom lawyer was a bumpy road. Like many of us, I’d never met a lawyer before law school. I’d never worked in an office, let alone a law office. My nice suit was a wetsuit. In the action sports world, we called “hosted” bars, “open bars.”
I felt like patchouli in a room full of Chanel. I remember watching Friday’s motion calendar in law school thinking, “I’ll never be like those corporate lawyers. I’ll never be… that. That’s just not… me.”
Until one day, Judge Steve Denton advised me, “Sarah, you should watch the trial in Judge Strauss’ department. I think you’d enjoy it.” It was a car crash case against a corporate giant. I watched the Plaintiff’s lawyer’s opening (I don’t even remember the defense opening) and Plaintiff’s first witness under 776. I was hooked! The Plaintiff’s lawyer acted like a regular person - someone I could relate to. Now that – THAT – I could do.
Shortly thereafter, a prominent Plaintiff’s lawyer in the community emailed me, personally inviting me to a CASD event that evening, and paid for my law student CASD membership. I had no idea what CASD was. I googled it. I went to that event.
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of Havens Injury Law, Inc., which represents wrongfully injured individuals against insurance companies, corporations and governmental entities. Sarah is a University of San Diego Law School Grad, a Trial Lawyers College Graduate, and National Institute of Trial Advocacy faculty instructor. She can be reached at sarah@havensinjurylaw.com.
Sarah Havens CASD President
Sarah Allison Havens is Founder and Lead Trial Lawyer
For the first time in a while, I felt community again. I longed for the comradery I’d left in the snowboard world, and for the passion that united us. We were a bunch of misfits, all fighting together to raise the bar in our industry and be recognized for the athletes that we were, particularly as women in the sport. Many of you reading this were at the CASD event that night, welcoming me with open arms and embracing the quirkiness that was Sarah Havens 15 years ago. Many of you have become a part of my journey over the years. Many of you mentored me. Most of you – quite literally – raised me. I would not be here without you all and this organization.
Since 1960, the Consumer Attorneys of San Diego (formerly San Diego Trial Lawyers Association) community has lived up to the prom-
ise that we, and our clients, “Never Stand Alone.” Generation after generation we are a community of leaders creating leaders.
Today, we have unique opportunities that didn’t exist even eight years ago. There is far more that unites us than divides us. Today’s jurors value life, liberty, independence, health, loss of enjoyment of life…. more than they ever have before. They are angry when corporate America, insurance companies, or governmental entities –through greed, power, and politics –take these essential freedoms away. Today’s jurors are speaking loudly and clearly through their jury verdicts. The other side knows this. And they are afraid. And they attack us.
As your 2025 President, I commit to transparency, open mindedness, and inclusion. I promise to listen to every single one of you - your comments, concerns, and ideas. And, I challenge YOU to speak up, engage, inspire, and collaborate. Be the lawyer who personally invites that rising star, past mentor, or colleague to actively join our cause whether by in person or online engagement. Be the young lawyer who bravely shows up knowing no one. We will welcome you with open arms. A rising tide lifts all boats. We are stronger together. This organization exists by and for its members and the clients we serve. And we need you now more than ever.
So, cheers to 2025! Let’s raise that tide. And go kick some ass! tBn
I tell my story because it reminds me of stories I’m told of the late 90s when we were under attack and how this community united, collaborated, and fought together to victory over tort reform.
Joint and Several Liability needs our Protection – Again
Here we go again! Despite enjoying a host of immunities and protections, public entities are blaming the tort system for their financial woes. In the 1980s, the result was Proposition 51, which eliminated joint and several liability for non-economic damages, and a huge tort compromise called “The Napkin Deal.”
Just like the 1980s, many factors are contributing to budgetary difficulties across the state. Inflation, the high cost of housing, insurance and just about everything else has impacted most consumers. However, big insurance companies and tort reform enthusiasts cry out against “deep pocket” jury awards and lambast trial lawyer organizations across the state as the cause for every problem. Now, certain public entities are following suit.
Rather than blaming victims of negligence and other bad conduct, public entities need to look inward to the cause of increased payouts on tort claims. What could they do differently? Could they finally fix the infamous intersection that results in dozens of reported deadly accidents? Could they fire the known harasser they employ in their department with a notorious track record for repeated offenses? Could their insurers settle reasonable demands within policy limits?
The answer is yes. So why don’t they? Instead, some government bodies are increasingly seeking to shift this liability, particularly when it comes to who pays and who gets punished. We have heard these cries before.
In the months leading up to the June 1986 California primary election, we saw similar messaging pushing to reform the then-existing joint and several liability system. In cases where government entities try to avoid responsibility, the financial fallout often lands in the lap of taxpayers.
If public entities can avoid liability through legal loopholes, there’s less incentive for them to improve policies or maintain infrastructure. The result? We may be left dealing with even worse potholes, crumbling bridges, or poorly planned development projects. Instead of tackling these important issues responsibly, they are looking to attack decades old consumer protections and eliminate joint and several liability in public entity cases.
Joint and several liability is among the hardest concepts to understand in tort law, but one that is vital to the proper operation of the tort system. Put simply, without joint and several liability, entities who hurt or kill a California resident will not pay for the harm they cause. If paying for the harm you cause is a central tenant of personal and corporate responsibility, then it demands preserving our existing law.
When two (or more) entities are at fault for causing an injury, joint and several liability ensures both entities are liable for the harm they caused. The theory behind this long-standing policy is that the victim should not have to pay the cost
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Jacqueline Serna Consumer Attorneys of California Deputy Legislative Director
Jacquie joined CAOC in 2011 after working in the Assembly for then-Assemblymember Ricardo Lara. Jacquie has successfully passed legislation to permit postdeath pain and suffering damages, ban secret settlements in sexual harassment and sexual assault cases, better the rights of elder abuse victims, ensure fair and just compensation for injured undocumented immigrants, and protect the rights of workers. Born and raised in Boyle Heights, Los Angeles, Jacquie is a proud “Double Bruin,” receiving her bachelor’s and a law degree from UCLA.
Washington update
In these final days of 2024, there is plenty happening—and not just in Congress, where they are scrambling to finalize “must-pass” legislation.
New rules
There are several new federal rules that went into effect on December 1, including new Rule 107 on Illustrative Aids. Only Maine has a rule on illustrative aids, so anticipate that more states will use the federal rule as a model to follow. You can access the list of new rules on AAJ’s website at (https://www. justice.org/advocacy/legal-affairs/federal-rules/eff-rules-dec-2024).
AAJ closely monitors proposed amendments to the rules and the impact of possible changes on trial lawyers and their clients. When changes to the federal rules are advanced by defense interests, AAJ ensures that plaintiff attorneys are represented by advocating for rules that are fair and balanced. AAJ also works with plaintiff attorney members to identify rules that should be amended to better promote justice, ensure fairness, and improve efficiency.
Updated insurance Minimums report
AAJ Research has updated its original report (https://www.justice.org/ resources/research/raising-auto-insurance-minimums) that analyzed auto insurance cost data from 2007 – 2021 and found the average cost of auto insurance in states that raise their minimum levels of insurance increases at a lower rate than the country as a whole over the equivalent periods.
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School of Law.
Linda A. Lipsen, CEO American Association for Justice
Linda Lipsen is the CEO of the American Association for Justice (AAJ). She joined AAJ in 1993 to direct the Public Affairs department. Ms. Lipsen earned her B.A. from the University of Wisconsin and her J.D. from the Antioch
A.J. Battaglia Bronson DeKoning
The updated report, Raising Auto Insurance Minimums: December 2024 Update, includes an analysis of 2022 data and finds this trend continued. (https://www. justice.org/resources/research/raising-auto-insuranceminimums-december-2024-update)
AAJ’s State Affairs and Research teams are working to assist State Trial Lawyer Associations (TLAs) that want to advocate for raising outdated auto insurance minimums to reflect current auto and medical costs. This report provides important data to help them inform lawmakers who can pass these increased minimums.
Almost all AAJ and state TLA members handle auto crash cases. AAJ’s research—and Federal Rules Program— are part of a multifaceted, strategic approach to protecting trial lawyers’ practices and their clients’ cases.
Public Education
]AAJ Communications continues its work to expand access to justice through its online grassroots campaign, Take Justice Back. This team works to hold powerful corporations accountable by highlighting the stories of members’ clients, educating policymakers and stakeholders, and working with the media to promote how trial lawyers
make a difference. Issues recently covered include:
• A gender discrimination suit against Disney (AAJ President Lori Andrus’s firm Andrus Anderson represented the plaintiffs)
• A 9th circuit case on whether Section 230 of the 1996 Communications Decency Act Shields Grindr From Defective Design Claims (AAJ filed an amicus brief in this case)
• Forced arbitration as a tactic to silence employees (an op-ed by AAJ President Lori Andrus, featured in The Hill)
Additionally, we are pleased to have been featured in the podcast debut of Raising the Bar, from RebuttalPR. I chatted with the founder Ray DeLorenzi about the crucial role trial lawyers play in safeguarding civil justice and the challenges and opportunities trial lawyers face in shaping the judiciary and advancing civil justice reform. Listen on Apple, Spotify, and YouTube.
Amicus Curiae Update
In 2024, AAJ filed 24 amicus curiae briefs in state and
Seconds Matter: evidence of Predeath Pain and Suffering
We’re entering the sunset year of Code of Civil Procedure section 377.34(b), which allows the recovery of predeath pain and suffering. Despite the statute going into effect nearly three years ago, California has yet to produce case law discussing the evidence required to substantiate a predeath pain and suffering award.
Without any appellate road map, how do we develop facts to take advantage of the last 12 months of the statute? A combination of percipient witness testimony, photographs, and, if reliable and necessary, expert testimony can add tremendous value to our verdicts and settlement demands. Throughout this article, remember—seconds matter. Tragically, the longer a victim suffered before death, the more likely there will be admissible evidence to support that suffering. As trial attorneys, we take the facts we have and maximize them.
Percipient Witnesses
Don’t overthink pain and suffering. Lay witnesses, and lay witnesses alone, can support a pain and suffering award. (See Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889) If there is a witness to the injury and death, that should be the first layer of foundation you build to ask for an award. Nailing down specific, visceral testimony from eyewitnesses is probably the best testimony that can support a verdict. Eyewitness testimony is often the easiest to gather. Always start here.
A Picture is Worth 1,000 Words
If you’ve attended any trial seminar, you’ve heard, “show, don’t tell.” Photographs and videos remain some of the best evidence we have of pain and suffering. If you have photographs of your client’s suffering before death, provide them with any settlement demand.
But at trial, the defense will move to exclude any gruesome photographs of the decedent under Evidence Code section 352. Yet favorable case law exists. People v. Howard upheld the introduction of gruesome autopsy photographs after the defense disputed some of the predeath injuries of the victim. (People v. Howard (2008) 42 Cal.4th 1000, 1023) While decided years before Code of Civil Procedure section 377.34(b) was enacted, cases like Howard are helpful in showing trial courts where the balance between probative and unduly prejudicial lies.
The power of the predeath pain and suffering statute is that it forces the defense to concede the horrors of the death or to face the introduction of inflammatory evidence. The best scenarios for admitting gruesome photographs to illustrate predeath pain and suffering are likely: when the defense disputes whether
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Domenic Martini Column Editor
Domenic Martini is a trial attorney at Singleton Schreiber, where he focuses on catastrophic injury and flood cases. Dom is a member of the CASD Board of Directors. He can be reached at dmartini@ singletonschreiber.com.
federal courts across the country. 7 of those briefs were filed in state supreme courts (29%), 11 were filed in federal circuit courts of appeals (46%), and 6 were filed in the U.S. Supreme Court (25%). 42% of all briefs were filed jointly with co-amici organizations, including state trial lawyer associations and national organizations such as Public Justice, the National Women’s Law Center, and the National Employment Lawyers Association.
Throughout the year, AAJ filed amicus briefs in a wide variety of practice areas, from products liability or medical malpractice claims to child sex abuse or workers’ rights actions. These briefs addressed 14 different issues affecting plaintiffs’ access to
justice and the right to trial by jury, including issues related to forced arbitration, Section 230 immunity, expert testimony admissibility, damages caps, and class certification requirements.
All AAJ amicus curiae briefs are available on AAJ’s website. (https:// www.justice.org/advocacy/legalaffairs/amicus-curiae-program) For more information or to request an amicus brief, please email LegalAffairs@justice.org.
End-of-Year Advocacy
As of the time of this publication, it is unclear whether or when Congress will pass a continuing resolution (CR) to fund the government on a shortterm basis. We are working diligently
to prevent any preemption language from being added to the CR that would undermine your clients’ current and future cases as negotiations continue in earnest.
Looking Ahead
I am grateful for the partnership between AAJ and the TLAs. Together, in 2025 and beyond, let’s continue our work to protect injured patients, workers, and consumers and ensure that your clients get a fair shot in the courts throughout the country. tBn
California Attorneys Brace for Change: Key 2025 Laws that Will Shape the Legal Landscape
As we enter the new year, California’s legal landscape is set for significant changes that will affect everything from consumer protection to workplace rights. For attorneys, particularly those focused on employment, consumer law, and class actions, these reforms offer both challenges and opportunities. Now is the time to get ahead of the curve—update your strategies, understand the new laws, and position yourself for success in the year ahead. Here’s a look at the key changes.
Minimum Wage increase
Beginning in January, damage calculations will change. Effective January 1, 2025, California’s statewide minimum wage will increase 50 cents to $16.50 per hour for all employers. In San Diego, the rate will rise to $17.25 per hour. Additionally, the minimum salary for full-time exempt employees will increase from $66,560 per year to $68,640 per year. Any employee paid on a salary basis which falls below this minimum threshold is misclassified as exempt. See Labor Code § 515 subd. (a). Misclassification means that the employee is entitled to, inter alia, overtime pay for any hours worked more than eight in one day or more than 40 in one week, meal breaks, and rest breaks.
Updated Antidiscrimination Laws: intersectionality and Hair Discrimination
California is now the first state in the United States to explicitly prohibit discrimination based on the intersection of multiple protected characteristics—such as race, sex, age, and disability. See SB 1137. The prohibition against “intersectionality” discrimination refers to the compounded discrimination an individual may experience when they belong to multiple marginalized groups. For example, someone who is both a woman and a person of color may face distinct forms of discrimination compared to a white woman or a man of color. This new law provides an expanded analytical framework for discrimination claims that could impact the viability of affirmative defenses directed at specific characteristics (as opposed to the combination of characteristics). The new law may reduce judicial skepticism and lack of understanding about intersectional claims and increase the burden on employers who may now have to demonstrate that their policies or actions were not discriminatory based on the combined characteristics of the individual.
Expanded Protections for Victims of Violence
In 2025, California will expand workplace protections for employees who are victims of domestic violence, sexual assault, stalking, and other acts of violence.
who recently transitioned to representing plaintiffs in employment law disputes after spending the first part of her career representing San Diego businesses. With a background in business litigation, she brings a unique perspective to her new focus on advocating for employees and individuals facing workplace injustice. She can be reached at caitlin@hhdlaw.com.
Caitlin is a trial attorney
Caitlin Macker Contributor
Mandatory Fee Arbitration: Basics, How-tos, and Strategies
In any dispute regarding attorney fees or case costs, clients have a right to Fee Arbitration. (Bus. &: Prof. Code § 6200(c), State Bar Rules 3.501(A).)
Mandatory Fee Arbitration (“MFA”) was established in 1978 and is governed by Bus. & Prof. Code §§ 6200-6206 and Rules of the State Bar of California, Title 3, Division 4, Chapter 2. The purpose of MFA is to provide a lower-cost, quick, informal and confidential way attorney and client fee and cost disputes may be resolved.
MFAs are administered by county bar associations (for example, the Bar Association of Northern San Diego County, the San Diego County Bar Association, and the Beverly Hills Bar Association.) Where there is no local bar association, the MFA is administered by the State Bar.
Fee Arbitration is Mandatory for Attorneys
California attorneys must arbitrate any fee or cost dispute if the client chooses. Fee arbitration is mandatory for the attorney and optional for the client. (Bus. & Prof. Code § 6200(c).) The MFA is not binding unless both client and attorney agree.
Fee agreements with a provision requiring binding fee arbitration are not enforceable where the client chooses non-binding MFA. Where there is a valid arbitration provision, the binding fee arbitration will take place after the MFA.
A Notice of the right to Fee Arbitration is required
Either before filing a lawsuit against a client or at the time the lawsuit is served, the attorney claiming fees or costs must serve the client with a “Notice of Client’s Right to Fee Arbitration.” Serving the State Bar’s form is mandatory, and the form can be downloaded from the State Bar’s website or from county bar association websites. If there is an arbitration agreement signed by the client for arbitration, the Notice must be served prior to or at the time of starting that arbitration process. No notice is required before initiating mediation. Failure to serve the Notice is grounds for dismissal of the lawsuit or arbitration.
The client has 30 days from service of the Notice to request MFA. Failure to timely request arbitration or file an answer waives the client’s right to MFA. (Bus. & Prof. Code § 6201(a).) Additionally, a client forfeits the right to MFA by filing any court pleading related to the fee dispute or alleging malpractice. (Bus. & Prof. Code § 6201(d).)
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Joel G. Selik is a California Legal Malpractice Certified Specialist who concentrates his practice on debt collection, professional responsibility, legal malpractice, and ethics. He has offices in Nevada and California and can be reached at joel@seliklaw.com
Joel G. Selik Column Editor
The lawsuit or non-MFA arbitration is stayed upon the filing and service of the request for arbitration. (Bus. & Prof. Code § 6201(c).) The statute of limitations for legal malpractice is tolled during MFA.
Attorneys Suing Clients
Attorneys should think long and hard when considering suing a client for fees. Even if you believe you have given the matter due consideration, it is a good idea to spend even more time considering the matter before committing to a lawsuit. Suing clients often results in unpleasant allegations of legal malpractice and breach of fiduciary duty, even when these claims are time-barred or baseless. Attorneys considering such a course of action should ask themselves: “Is it worth the time, anxiety, work, and increase in insurance rates?”
Exceptions to Mandatory Fee Arbitration
MFA does not apply to cases in which: a non-client disputes a fee (i.e., where another person is paying the fees for a client, such as with Cumis counsel), other than to determine if the person is a client; where a California attorney is admitted in another state and the legal services were performed only in that other state; or where fees were determined by court order or by statute.
What to Do When You Get Notice of a Fee Arbitration
First, do not panic. While fee dispute arbitration will take some of your time, it can be much less time consuming and stressful than a lawsuit. When a client files a fee dispute and pays the filing fee (5% of the amount in dispute), the bar associa-
tion fee dispute program sends the attorney the client’s complaint and requests the attorney’s reply. The attorney may choose to give a detailed response, including exhibits, or only a brief response. Be certain to make a point of any legitimate affirmative defenses, such as the statute of limitations. In arbitrations I’ve conducted, the parties are given an opportunity to provide briefs. The arbitrators always read these documents fully, and it is wise to make the reply and any other submitted material short, persuasive, factually oriented, and supported by easily accessible evidence. PDF bookmarks are useful.
Once the bar association receives the reply, an arbitrator or panel of arbitrators is assigned. A single attorney arbitrator is assigned where the dispute is under $25,000.00. Otherwise,
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the Crucial Difference Between “the truth” and “My truth”
At a time when it may seem as if the truth doesn’t matter anymore, we can seek some sanctuary in the courts. As imperfect as our system of justice is, the quest for the truth is integral to the just resolution of legal disputes, administered through our judicial system. Courts meter justice by ruling on a host of evidentiary rights and objections which any adversary may assert. The oath to present evidence requires that we “promise to tell the truth, the whole truth, and nothing but the truth.” The goal is that the triers of fact resolve “questions of fact” which will reveal the truth or a reasonable approximation thereof. However, sometimes the truth can be illusive when one’s personal belief or perspective skews one’s view of reality. For that reason, it is important that we not conflate “the truth” with “my truth.”
Believe it or not, there is a national holiday celebrating honesty. Who knew? Perhaps this would be a good time to emphasize these types of holidays a bit more, or at least know they even exist. National Honesty Day is a holiday celebrated on April 30th each year to encourage honesty and truthful communication. The holiday was created in the early 1990s (by M Hirsh Goldberg, author of The Book of Lies) and is intended to contrast with April Fool’s Day, on which falsehoods are celebrated. For those who may not value truth much, if at all, perhaps they might consider a small sampling of what some wise leaders believed.
Thomas Jefferson said that “[h]onesty is the first chapter in the book of wisdom.” Mahatma Ghandi took it to another level when he expressed his view that “[d]evotion to the truth is our sole justification for existence.” Giordano Bruno, an Italian philosopher, said that “[t]ruth does not change because it is, or is not believed by a majority of the people.” Perhaps the most ominous quote on the subject is that of Thomas Hobbs, who is credited with saying, “Hell is the truth realized too late.”
There is only “the truth.” When some of my clients talk about “my truth,” often in pre-deposition prep sessions, I cringe but am sensitive to its origin. (See below.) There is nothing wrong with the phrase when it comes to personal rights. But hearing the phrase “my truth” uttered by your witness after being asked if they if they are telling “the truth,” is not a good place to be.
The “my truth” phrase is generally defined as a personal belief or a perspective. “The truth” is generally defined as that which is true or in accordance with
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Thom Diachenko Column Editor
Thom Diachenko litigates employment, wage and hour, business, personal injury, and medical malpractice matters. He graduated from Boston University with a Bachelor of Science in Nursing and worked as a registered pediatric ICU nurse. He graduated cum laude from USD School of Law, where he was a member of the San Diego Law Review. He may be reached via email at thom@diachenkolaw.com.
Protecting Vulnerable Clients: Special ethical Considerations for elder Law Attorneys
Being an elder law attorney comes with its own complex ethical challenges. Attorneys are employed to protect their elderly clients from, or remedy acts of, financial exploitation, abuse, or neglect committed by others, whether through estate planning, housing assistance, civil actions, or any number of other legal issues that plague California’s elderly population. However, attorneys must ensure that they are not victimizing their elderly clients in the process.
While an attorney might not intentionally set out to harm their own client, it is much more likely to occur through inadvertence. The best way to avoid inadvertently victimizing your elderly client is by understanding the special ethical issues that arise in these cases and how to handle them when they do. This means navigating sensitive issues, including determining a client’s capacity, managing potential conflicts of interest, and ensuring that the client’s autonomy is respected in all legal matters.
Capacity: Determining Whether a Client Can Make Legal Decisions
One of the most significant ethical dilemmas faced by elder law attorneys is determining whether a client has the mental capacity to make decisions regarding their legal matters. Mental capacity is essential for a client to effectively engage in the attorney-client relationship, understand the implications of decisions, and provide informed consent. Attorneys must carefully assess whether their elderly client is capable of making decisions regarding wills, trusts, healthcare directives, financial matters, settlement negotiations, or even entering into the attorney-client relationship in the first place.
Elderly people may experience cognitive decline, dementia, or other agerelated conditions that affect their decision-making abilities. However, even those with cognitive impairments may still retain the ability to make some decisions, while others may not. Complicating matters further is the fact that symptoms of an elderly client’s cognitive decline may not always be static or obvious.
Various ethics rules address the issue of client capacity. For example, California law recognizes that a person must have the mental capacity to execute a valid will or trust. A will executed by a person who lacks capacity is void and can be contested by family members or others. California Probate Code section 6100.5 states that the testator executing a will must understand the nature of the act, the extent of their property, and the natural objects of their bounty. The American Bar Association (ABA) Model Rules of Professional Conduct also emphasize the attorney’s duty to ensure that clients understand the nature of the legal matters at hand. Specifically, ABA Model Rules, Rule 1.14 outlines an attorney’s responsibilities when a client’s mental state may impair their ability to make informed decisions.
Natalie B. Holm Column Editor
Natalie Holm is a partner at Holm Law Group, PC in San Diego. She has spent her entire career representing elderly clients and their families in abuse, neglect, and wrongful death cases throughout California. She has been serving on the CASD Board of Directors since 2018 and is currently CASD’s President Elect. She can be reached at natalie@holmlawgroup.com.
A client who lacks mental capacity is also vulnerable to undue influence from family members, caregivers, or other parties who may seek to manipulate the elderly client’s decisions for personal gain. For example, an elderly person might be unduly influenced by a relative to make changes to a will or trust that are not in the client’s best interest. Attorneys should ensure that their elderly client is making decisions independently, without coercion. Yet, another reason why attorneys must be vigilant in monitoring their elderly clients’ mental capacity.
Attorneys must approach the issue of capacity assessments with sensitivity and respect for the client’s dignity. Rather than assuming a lack of capacity based on age or cognitive condition, attorneys should evaluate the client’s ability to understand the matter at hand. If there are concerns about a client’s capacity, attorneys should consider consulting with medical professionals, such as geriatricians or psychologists, who can assess the client’s cognitive abilities. A formal capacity assessment may be necessary, particularly if there is uncertainty about the client’s ability to make informed decisions. It is important for attorneys to document these assessments and be able to present them if the validity of a decision or document is ever challenged.
Conflicts of interest: Protecting the interests of the Elderly Client
Conflicts of interest are an ever-present concern when representing elderly clients. The elderly are often in vulnerable positions, and conflicts may arise from various relationships, including with family members, caregivers, or even their own attorney. Ensuring that conflicts of interest are appropriately identified and mitigated is essential to upholding ethical standards and protecting the client’s rights.
Examples of conflicts of interest that might exist for elderly clients include:
• Family Dynamics: In elder law cases, attorneys frequently encounter situations where family members are involved in the representation. For instance, an adult child may hire an attorney to draft a will or trust for a parent, raising the potential for conflicts of interest. If the child stands to inherit under the will or trust, their interests may conflict with those of the elderly client, particularly if the client’s preferences are unclear or contested.
• Joint Representation: In some cases, attorneys may
name of undergraduate university and field of study: Fordham University - English & Theology
name of Law school: University of Virginia School of Law
Year you became a member of the Bar: New York (2020); California (2023)
What compelled you to join CAsD?
I heard about CASD through word of mouth when I was first trying to break in to the San Diego legal market. The best part of the CASD community is how much everyone wants to help each other. I’ve come to rely on the CASD listserv for news, advice, and entertainment. I’ve gotten great advice and recommendations from other members.
What piece of advice would you give a new attorney just starting out?
I truly believe that our job can and should be fun, but you have to learn the ropes first. Experience is everything in this profession, so keep showing up, keep trying hard things, keep asking questions, and you can’t help but get better.
What is the best (or hardest) thing about being a trial lawyer? The best AND hardest thing is that you have a duty to fight for the truth.
Do you have a motto? Please share! Matthew 23:11 - “The greatest among you will be your servant.”
What is your guilty pleasure? Australian licorice. So hard not to finish the whole bag in one sitting.
What book(s) are on your nightstand? “Zen and the Art of Motorcycle Maintenance” and “Happiness” by Mathieu Ricard
Favorite law-related tV show or movie and why? Not my favorite but “Legally Blonde” has the most accurate depiction of law school
Favorite san Diego restaurant? Azuki in Bankers Hill. Honorable mention to OB Noodle House and The Fishery.
Favorite vacation spot: Lake Almanor - it’s like Tahoe, but no one knows about it
Favorite band/song: “One Love” by Nas
If you could spend the day with one attorney or judge, dead or alive, who would it be and why? I would spend the day with my old law school roommates, Will Haslun and Bill Clinton (no relation).
If you could know one thing about the future, what would it be and why? I would want to know who to draft in my fantasy football league
Consumer Attorneys of San Diego neW MeMBerS 2024
Charles Adair
Theodora Adoghe
Angelia Alam
Amir Azimzadeh
Terry Bailey
Brendan Bargmann
Audrey Beck
Kylee Belanger
Matthew Benson
Victor Bianchini
Andre Bollinger
Adam Bucci
Matthew Burgess
Shawn Burgh
Christina Caballero
Zedric Dalisay
Jordyn De Court
Samantha Deutsch
Carson Dudick
Sarah Earnest
Miriam Estrada
Iqra Farooq
Vanessa Feierabend
Vanessa Felix Corona
David Finn
Brianna Franco
Jordan Goulet
Steven Guilin
Caitlin Harlan
Jennifer Hegemier
Haley Heinzelman
Christy Heiskala
Nate Hendricks
Adam Hepburn
Ted Holmquist
Gabriel Huerta
Danielle Iredale
Cheylise Jefferson
Molly Jump
John Kawai
Jade Kouretchian
Daniel Kramer
Paul Kresge
Philip Kunka
Ty Lassen
Alexandra LeClair
Karla Madrazo-Villarreal
Ricardo Marin
Eric Marshall
Juan Martinez
Eric Mccullough
Joseph McMullen
Jaime Mendez
Frank Mihalic
Angelica Monie
Lawrence Morrow
Jennifer Orendi
Breven Parsons
Meenal Patel
Deborah Perlstein
Noah Phillips
Sulmy Pivaral
James Recupero
Deborah Retes
Reece Roman
Ric Romero
Samuel Rotshtein
Jocelyn Russo
Laura Saucedo
Leah Schumacher
Joseph Seipel
Avril Shefts
Chelsea Tholen
Emma Van Ginneken
Kate Wachsman Casey
Redmond Walton
Kristen Walton
Samantha Wasiluk
Kelsey Woodson
Michael Zuckerman
CONSUMER ATTORNEYS OF SAN DIEGO
WELCOMES THE 2025 BOARD OF DIRECTORS
OFFICERS
Sarah Havens PRESIDENT Natalie Holm PRESIDENT ELECT
DIRECTORS
David Arreguin
Nathan Batterman
Domenic Martini
Matt Clendenin
TREASURER
John O’Brien
David Casey III
Anna Romanskaya
Carree Nahama SECRETARY
Paula Brown IMMEDIATE PAST PRESIDENT
James Davis
Sean Manee
Ben Siminou
Jordan Harlan
Kacie
Vinel
Aran
Wong
California Case summaries™
By Monty A. McIntyre, Esq.
Monty publishes California Case Summaries™, with one-paragraph summaries, organized by legal topic, of every new civil case published each month, quarter, and year in California, giving subscribers a competitive advantage and excellent results. Monty has been a California civil trial lawyer since 1980, a member of ABOTA since 1995, and currently works as a full-time mediator, arbitrator and referee with ADR Services, Inc. Monty handles matters in the areas of business, employment, insurance (bad faith, coverage, UIM), probate (trusts and estates), real property and torts (elder abuse, medical malpractice, personal injury, product liability and wrongful death).
CALIFORNIA SUPREME COURT Civil Procedure
California Capital Insurance Company v. Hoehn (2024) _Cal. 5th_, 2024 WL 4812045: The California Supreme Court overruled the rule in Rogers v. Silverman (1989) 216 Cal. App.3d 1114 (Rogers) and its progeny that Code of Civil Procedure section 437.5’s two-year time limit applies to Code of Civil Procedure section 473(d) motions to vacate a judgment that is void, stating that procedural hurdles that are unnecessary to the fair adjudication of default judgments should not stand in the way of the vindication of a defendant’s due process rights. In the underlying case
plaintiff attempted to serve defendant in 2010 and allegedly obtained substituted service on defendant’s girlfriend. In 2011 plaintiff obtained a default judgment of $486,528 against defendant. In 2018 plaintiff assigned the default judgment rights, and in 2020 after the judgment creditor tried to garnish defendant’s wages. Defendant then filed his motion to set aside the default judgment which the trial court denied based upon Rogers, and the Court of Appeal affirmed. (November 18, 2024.)
CALIFORNIA COURTS OF APPEAL Arbitration
Leeper v. Shipt, Inc., et al. (2024) _ Cal.App.5th _, 2024 WL 5251619: The Court of Appeal reversed the trial court’s order denying defendants’ motion to compel arbitration of plaintiff’s action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The trial court denied the motion based upon its conclusion that plaintiff’s PAGA action did not allege any individual claims subject to arbitration under the parties’ arbitration agreement. The Court of Appeal disagreed and reversed.
Based on the unambiguous, ordinary meaning of the relevant statutory language and the legislative history of that language, the Court of Appeal concluded that every PAGA action necessarily includes an individual PAGA claim. The Court of Appeal reversed the trial court and directed the trial court to enter a new order (1) compelling the parties to arbitrate plaintiff’s individual PAGA claim and (2) staying the representative PAGA claim portion of the lawsuit. (C.A. 2nd, December 30, 2024.)
Check out my podcast Trial Alchemy ™ where I interview outstanding plaintiff and defendant civil trial lawyers and civil trial judges who are American Board of Trial Advocates members. This podcast is an excellent way for civil trial lawyers to learn from jury trial experts, whether they’ve tried no cases or many cases. Available on Spotify and Apple. You can also watch the podcast on YouTube.
of the injury—the entities who are at fault for causing the injury should pay the full cost. This is the “joint” in joint and several.
To be clear, fault is not apportioned. Just like you cannot be 10% pregnant, no one is 10% “at fault” either. Under our tort law, every entity must be found to be the 100% “but for” cause of an injury before they are found “at fault.” If an entity is not at fault for the injury, then they don’t owe the plaintiff anything. If a single entity is found to be at fault, there is no apportionment—they pay 100% of the damages.
When more than one entity is found to be 100% at fault in causing harm or death, the jury is then allowed to apportion liability between the atfault parties. Joint and several liability becomes critical when one (or more) party cannot pay for the damages that are apportioned to them. For example,
say Company A has $3 dollars and Company B has $1 dollar. Both are found to be 100% at fault for causing $4 dollars in harm. The jury has no idea who has the money to pay for the harm, so they apportion those four dollars evenly between the two companies.
Joint and several liability is like a co-signed loan. If not for both parties, the injury (loan) would not exist. Both parties are responsible for the injury and the costs associated. “But for” any one defendant, the injury (loan) would not have occurred.
Eliminating joint and several means that any defendant could walk away from paying for part of the injury. They cause the injury, but won’t have to pay for it. That is the opposite of personal responsibility – instead, it incentivizes dangerous and reckless actions, because the perpetrator knows
they can point the finger and avoid accountability.
Just like we did in the 1980s, CAOC is leading the fight to defend our current joint and several liability system. But we need your help.
As governments tighten their grip on control, it’s important for citizens to stay informed, advocate for transparency, and push for systems that prioritize both accountability and fairness. Because when the balance between public and private responsibility gets out of whack, it’s often the public who pays the price.
So, the next time you see a pothole or experience a public service failure, remember: the stakes are high – and the battle for responsibility is ongoing. Keep your eyes open, because it’s more than just about fixing that pothole; it’s about protecting the civil justice system. tBn
the death was instantaneous versus prolonged; or when there are no concurrent eyewitnesses.
In these scenarios, photographs are highly probative, but it depends on their content. An analogy is Pompeii. We’ve all seen the photographs of the citizens encased in ash after the eruption. Depending on how a person was positioned—maybe hands in front of their face—you can imagine their last moments and the story they’d tell. Similarly, we must bear the unfortunate burden of determining whether photographs tell our predeath pain and suffering story. Seconds matter. If the defense claims the decedent died instantly without suffering, or if there is no other eyewitness, perhaps it’s the photographs, like the frozen citizens of Pompeii, that reveal the truth.
expert Witnesses
Finally, the use of experts can add additional color, or, depending on the circumstances of the death, might be the only way to prove your predeath pain and suffering claim. Evidence Code section 801 requires that expert
testimony be, “sufficiently beyond common experience.” (Cal. Evid. Code § 801 subdiv. (a)) Though a lay witness might describe the pain and suffering she saw, there are times when a portion of the victim’s experience is beyond observation. For example, a lay witness might describe a drowning victim’s struggle, but an emergency medicine physician will likely have to explain water entering the lungs and the physiological impacts of drowning on the body. Similarly, a pathologist might need to determine whether a fire victim died from smoke inhalation or burns. If the defense claims the death was instantaneous, you will likely need an expert to explain why it wasn’t. But here we can easily get out over our skis if there is inadequate foundation for an expert’s opinions under Evidence Code section 803. Without eyewitnesses, photographs, or an autopsy, tread carefully, and think logically. Otherwise, you risk exclusion.
Some states have placed specific restrictions on predeath pain and suffering evidence, requiring it to be substantiated by an expert witness. For a
great roadmap of what other jurisdictions are doing, check out this phenomenal law review article: Cassee, Paying the Penultimate Price: Compensating Predeath Pain and Suffering in California (2024) 75 UCLAWJ 823. It is more academic than this article and can point you to some great case law from other jurisdictions.
Conclusion
In any wrongful death case, we should be thinking about predeath pain and suffering. We should devote time to develop evidence supporting those damages concurrently with the wrongful death claim.
One final note: I don’t think the lack of appellate authority on section 377.34 is a bad thing. Tort reform advocates typically use large verdicts or appeals as an excuse to trim plaintiff friendly laws. The fact that California has not produced any headline grabbing case law on the topic will hopefully bode well for section 377.34’s renewal by the legislature this year. But just in case—let’s take advantage of it while we’ve still got it. tBn
The new law, AB 2499, requires employers to provide time off for victims of “qualifying acts of violence,” which is defined as: domestic violence, sexual assault, stalking, or any act, conduct, or pattern of conduct that includes (i) bodily injury or death to another; (ii) brandishing, exhibiting, or drawing a firearm or other dangerous weapon; or (iii) a perceived or actual threat to use force against another to cause physical injury or death.
Under the new law, an employer with 25 or more employees is prohibited from discharging or in any manner discriminating or retaliating against an employee who is a victim of a qualifying act of violence or who has a family member who is a victim for taking time off work for specified purposes relating to a qualifying act of violence. See Gov. Code § 12945.8 subds. (b)(1)-(10). These specified purposes include: (1) obtaining or attempting to obtain relief, such as a restraining order or other injunctive relief; (2) seeking medical attention for injuries; (3) seeking or obtaining services from a domestic violence shelter or similar agency; (4) seeking or obtaining psychological counseling; (5) participating in safety planning; (6) relocating or engaging in the process of securing new housing; (7) providing care to a family member who is recovering from injuries; (8) seeking or obtaining criminal or civil legal services; (9) preparing for, participating in, or attending any civil, administrative, or legal proceedings; or (10) seeking, obtaining, or providing childcare or care to a dependent adult if necessary to ensure their safety. Employees who experience discrimination or retaliation under this new provision are entitled to all damages regularly available
under the Fair Employment and Housing Act (FEHA).
The California Worker Freedom from Employer intimidation Act
Labor Code Section 1137 will limit employers’ ability to mandate attendance at meetings where the employer expresses its views on political or religious matters, including labor organizations. Employers will no longer be able to force employees to attend meetings or listen to communications that express the employer’s opinion on issues such as labor unions, political parties, or elections. Violators could face a civil penalty of $500 per employee per infraction. The law also prohibits employers from retaliating against employees who decline to attend these sessions and allows an employee to pursue a civil action for damages, including punitive damages, caused by the retaliation. See Labor Code § 1137 subds. (c), (f)(1).
The Freelance Worker Protection Act
Freelance workers will see stronger protections in 2025 under a new law (SB 988) that requires written contracts for freelance work valued at $250 or more. These contracts must include information about services rendered and payment schedules and be provided in both physical and electronic formats. See Bus. and Prof. Code § 18103. Freelancers who do not receive a written contract can take legal action to recover damages, including attorney’s fees and costs. See Bus. and Prof. Code § 18106.
Paid Family Leave: Changes in Vacation Leave requirements
Starting in 2025, employers will no longer be allowed to require
employees to exhaust up to two weeks of accrued vacation leave before tapping into benefits under the Paid Family Leave (PFL) program. See Unemp. Ins. Code § 3303.1. This change will make it easier for workers to access wage replacement benefits without first depleting their personal leave. This change is expected to be enforced through the existing regulatory framework and oversight mechanisms for PFL, primarily managed by the Employment Development Department (EDD).
Summary Judgment Deadlines Change
In 2025, the deadlines for filing summary judgment motions in civil cases will change. The new law (AB 2049) modifies Code of Civil Procedure Section 437c and requires motions for summary judgment or adjudication to be filed at least 81 days before the hearing, oppositions at least 20 days before the hearing, and replies at least 11 days before the hearing. The law also limits parties to one summary judgment motion per adversary without court approval and prohibits introducing new facts in reply briefs to ensure fairness.
New Protections for Minor influencers
Starting January 1, 2025, California will take the lead in protecting young social media influencers. AB 1880 expands the protections granted under California’s Coogan Law, originally passed in 1939, which required employers of child performers to preserve at least 15 percent of a child’s gross earnings for creative or artistic services for the minor’s use when the minor reaches adulthood. Under the
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new law, minors who earn compensation from creating content on online platforms like YouTube and Instagram will see 65% of their earnings automatically deposited into a trust account, ensuring that their income is properly safeguarded. To qualify, content creators must meet specific criteria, including earning at least $1,250 per month or meeting view thresholds for their videos. See Fam. Code § 6750.
Protection in Consumer Contracts
Effective January 1, 2025, SB 940 imposes new limitations on arbitration clauses in consumer contracts. Businesses engaging with California residents will no longer be able to require consumers to agree to arbitration outside the state if those claims arise in California. Additionally, arbitration of such claims must apply
California substantive law. Further, if a consumer contract requires arbitration and the dispute can be resolved under the Small Claims Act, the consumer has the option to adjudicate the dispute in small claims court instead. This new legislation aims to protect consumers by ensuring that disputes are resolved within California and under its legal framework.
Driver’s License Discrimination
Employers now face potential liability under the FEHA if their job posting includes a driver’s license requirement. Under SB 1100, it is now unlawful for employers to require a driver’s license in a job advertisement unless it is truly an essential function of the job. See Gov. Code § 12940 subd. (q). This change aims to make job opportunities more accessible to individuals who
rely on alternatives to driving.
Like other unlawful employment practices under FEHA, employers could face an injunction, declaratory relief (such as being required to hire the applicant), or be held liable for compensatory damages, punitive damages, attorney’s fees, and costs if found in violation of the new law.
As new laws take effect, attorneys will need to adjust their strategies to stay ahead. From consumer protection to employment rights, these changes could impact how your cases should be handled. By staying informed and adapting your approach, you’ll be ready to navigate the evolving landscape and set your practice up for success in the year ahead. tBn
be asked to represent both an elderly client and a family member or caregiver, such as a power of attorney or trustee. This situation presents an inherent conflict of interest, as the attorney may be tasked with balancing the interests of the senior client with those of the family member or caregiver. It is important for attorneys to evaluate whether such joint representation is appropriate and, if so, ensure that both parties understand the potential risks and limitations.
• Financial Interests: Attorneys must also be cautious about financial interests that could create conflicts of interest. For example, an attorney or their law firm should not have an interest in an elderly client’s will, trust, or other legal document that would benefit the attorney, law firm or their family members at the expense of the elderly client.
To ethically manage conflicts of interest, elder law attorneys should consider doing the following:
• Full Disclosure and Informed Consent: When conflicts of interest are present, attorneys must fully disclose
these conflicts to their clients and obtain informed consent. This includes explaining the nature of the conflict, the risks involved, and any steps that will be taken to mitigate those risks, and may involve executing a comprehensive conflict waiver at the time of retention. However, if the conflict is significant, the attorney should consider whether it is appropriate to continue representing the client or if a referral to another attorney is necessary.
• Encourage Clients to Seek Independent Legal Advice: In cases where there is a potential conflict of interest, attorneys should encourage elderly clients to seek independent legal advice. For example, if a family member is acting as a fiduciary (e.g., power of attorney or trustee), the attorney may suggest that the elderly client obtain advice from a separate attorney to ensure their interests are fully protected.
• Avoiding Dual Representation: When possible, attorneys should avoid representing both the elderly client and another party with conflicting interests.
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the arbitration is held before a panel of two attorney arbitrators and one lay (non-attorney) arbitrator. The parties are given a chance to object to the chosen arbitrators after they are chosen.
Once the arbitrator or arbitration panel is finalized, the parties are contacted and an arbitration hearing date is set. My process is to use an online resource to send out a series of dates, instructing each party to indicate the dates on which they are or are not available. The sole or lead arbitrator then chooses a date from those submitted by both sides and sends out the notice of arbitration, with deadlines to submit briefs, and exchange of exhibit and witness lists. (This is how I do this; other arbitrators’ methods may vary).
As an Attorney, Do You Want the Fee Arbitration to be Binding?
If the client requests the arbitration be binding, the attorney must decide if he or she wishes to agree. An age-old question: Would you rather have the right to take it to the next level, or the peace of a binding decision?
One consideration is the attorney’s determination, objectively, if the attorney will win. Here, “objectively” must be emphasized. When it involves our own income and our own actions, we should not rely on our own determination. It would be prudent to present the case (the full case, not just your side) to others who will give you an honest evaluation.
Another consideration is whether it is worth your time and emotional investment to choose non-binding. An additional consideration is estimating the chances the client will reject the award and request trial.
Other factors to consider include:
• A post-arbitration trial is not confidential. Fee arbitration is.
• Discovery is very limited. (State Bar Rule 3.540.)
• Attorney fees for the MFA are not recoverable even if the fee agreement has an attorney fees provision (State Bar Rule 3.544(D)(1)), though attorney fees to confirm, correct or vacate an award are recoverable. (Bus. & Prof. Code. § 6203(c).)
Continued on page 35
Finally, any potential claims of malpractice should be considered. In MFA, a client may not receive affirmative relief, for example, on a malpractice claim. Issues of malpractice are considered in determining the reasonable value of services. (California Arbitration Advisory Opinion 201203.) Violations of the Rules of Professional Conduct, such as nonwaivable or non-waived conflicts, can only be considered to reduce or deny an attorney fee award.
Attorneys often believe that not only did they do nothing wrong, but that there is also no potential claim for legal malpractice. Attorneys are often wrong.
Conduct of the Arbitration
All persons testifying will be sworn. There are usually no opening statements in the arbitration, as the briefs will have been read by the arbitrator(s). The initiating party, typically the client, begins by calling their witnesses and presenting documents. Often, the only witnesses are the client and the attorney.
Since MFA is designed to be informal, neither party needs an attorney, and the rules of evidence are relaxed, if applied at all. Objections to evidence are considered, but almost all evidence is admitted, with any issues affecting the weight of the evidence rather than its admissibility.
It is surprising that this even has to be said: The arbitrators decide the outcome of the case, and, just as you would not be rude to the jury, you should not be rude to the arbitrator. In a recent large MFA I conducted, one of the attorneys representing a large law
firm attacked the arbitrators. While it had no effect on the outcome of the arbitration, one must use common sense. Keep the arbitrators on your side.
The Award
After the arbitration hearing, usually as soon as it ends, the arbitrators will discuss the case and come to a determination. One of the arbitrators will write the award. The award will be circulated. Revisions will be made. An agreement will be reached by the panel of arbitrators. An arbitrator may issue a dissenting opinion. The lead or sole arbitrator submits the award to the fee arbitration program chair. The program chair ensures the award meets various form requirements. The award is signed and then served by the arbitration program.
Post Arbitration
Once the Award is issued, either party has 30 days from service of the award to file “Rejection of Award and Request for Trial After Attorney-Client Fee Arbitration.” Judicial Council Forms, form ADR-104. If neither party files the Rejection, the award becomes binding. Either party can file to confirm the award. Judicial Council Forms, form ADR-103 or form SC-101 (for small claims court). An attorney’s willful failure to participate in MFA waives the attorney’s right to reject the award and to have a trial. (Bus. &: Prof. Code § 6201(a).)
If the fee agreement includes a binding arbitration provision, either party may request binding arbitration after the MFA Award, rather than filing in Superior Court.
If the arbitration award requires that the attorney pay the client, the State Bar will enforce compliance on request. (Bus. & Prof. Code § 6203(d); State Bar Rules 3.560-3.563.) A payment plan may be arranged at the attorney’s request. If the attorney fails to pay the award the State Bar will enroll the attorney as involuntary inactive. (State Bar Rules 3.565.)
Be a Fee Arbitrator
Bar associations continuously seek both lawyers and non-lawyers to serve as arbitrators. It is rewarding to be an arbitrator for several reasons. It is good to be of service to the public and the Bar. It acts as a positive for the view the public has of attorneys and the legal process. And, it is an interesting and educational experience; it makes me a better lawyer. Just like any pro tem judicial experience, it is good to see things from the other side of the bench.
Conclusion
Receiving a client’s Request for Fee Arbitration is not a cause for concern. On receipt, the attorney should carefully evaluate the attorney’s position, consider settlement, and prepare a thoughtful, detailed, and succinct response.
Respond to the arbitrator’s requests regarding the hearing date and comply with all deadlines. At the arbitration hearing, the attorney, whether personally or via a retained attorney, should present the case showing the reasonableness of the fees, address every client-raised issue, and be transparent about any concerns. tBn
San Diego's Leading Elder Litigation Attorneys
Former CASD President and Director, Joel R. Bryant, and his team at Green Bryant & French, LLP, litigate elder abuse claims in both civil and probate court. They focus on three main areas of practice: will and trust litigation, including inheritance disputes; financial elder abuse; and nursing home neglect and wrongful death cases. Their breadth and depth of litigation experience - combined with specialized subject-matter knowledge in elder law - gives the team a competitive edge and a unique perspective that translates into excellent results for their clients.
In situations where dual representation cannot be avoided, it is crucial for the attorney to clearly define their role and ensure that each party understands their respective interests. If dual representation creates a substantial risk of material limitation, the attorney must withdraw from the representation.
Client Autonomy: respecting the Client’s right to Self-Determination
Perhaps the most fundamental ethical consideration when representing elderly clients is the duty to uphold client autonomy. Autonomy is the right of the client to make their own decisions, even if those decisions are not in their best interest from the perspective of the attorney or others. Some challenges that may arise in upholding an elderly client’s autonomy include interference by family members, caregivers, or close friends; weighing the need for intervention against the client’s right to autonomy when faced with signs of cognitive decline; or having to balance autonomy and protection when the client elects a course of action that the attorney does not believe is in the client’s best interests.
To ensure that elderly clients’ autonomy is upheld, attorneys should:
• Communicate and Make Sure the Client Understands: Attorneys should take the time to explain complex legal issues to elderly clients in a clear and understandable manner, ensuring that the client understands their rights and options. This allows the client to make informed decisions without unnecessary pressure.
• Respect the Client’s Wishes: Even when a client’s decision is unconventional or not in their best interest, the attorney must respect the client’s wishes, provided the client has the capacity to make the decision. This may include drafting a will or trust according to the client’s specific instructions, even if those instructions are not what the attorney would recommend.
• Monitor for Signs of Exploitation or Coercion: Attorneys must remain vigilant for any signs of exploitation, coercion, or undue influence, especially in situations where the elderly client is vulnerable to manipulation. If such concerns arise, the attorney must take appropriate steps to protect the client, including seeking court intervention if necessary.
Conclusion
Representing elderly clients requires attorneys to consider unique, and often complex, ethical issues. By ensuring proper capacity assessments, managing conflicts of interest, and respecting client autonomy, attorneys can provide legal services while still protecting their elderly clients. As California’s aging population continues to grow, the importance of ethical considerations in elder law will only increase, making it essential for attorneys to remain vigilant, informed, and dedicated to protecting the interests of their senior clients. tBn
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