INCIVILITY IN LAW p. 8 Where we’ve been and where we’re headed (a series)
BENCH AND BAR AWARD RESCHEDULED p. 12 Event now September 16
LEMUCCHI DIES AT 84 p. 26 Local attorney’s legacy remembered
RES IPSA LOQUITUR JULY/AUGUST 2021
2021 Board Installed on Zoom p. 6
PUBLISHED BY THE KERN COUNTY BAR ASSOCIATION
ABOUT THE RES IPSA LOQUITUR CONTENT/DESIGN Amber M. Chiang rileditor@gmail.com ADVERTISING Rebecca Beagle rbeagle@kernbar.org
ABOUT THE KERN COUNTY BAR ASSOCIATION 1112 Truxtun Avenue Bakersfield, CA 93301 661-334-4700 info@kernbar.org
The Res Ipsa Loquitur is published 6 times per year. Articles, announcements and advertisements are due by the 5th of the month prior to the publication date. The articles in the Res Ipsa Loquitur are written for general interest and are not meant to be relied upon as a substitute for independent research and independent verification of accuracy. The articles appearing in the Res Ipsa Loquitur do not necessarily reflect the opinion of the Kern County Bar Association, the committee or the columnists. Acceptance of advertising by the Res Ipsa Loquitur does not constitute endorsement of products or services advertised. The content of ads was not checked by either the Kern County Bar Association employees or members. No representations are made by the Kern County Bar Association. The Kern County Bar Association reserves the right to refuse any advertising. The Res Ipsa Loquitur welcomes contributions from legal professionals and representatives from relevant businesses and organizations. All articles will be reviewed for appropriateness and those selected for publishing will be published at the convenience of the Res Ipsa Loquitur editorial committee. To have an article considered for publication, please email rileditor@gmail.com.
LeBeau Thelen, LLP is seeking an employment and/or business litigation attorney (including lateral candidates). Qualified candidates must have exceptional legal writing and legal research skills, as well as excellent interpersonal, communication, organizational, and computer skills. Candidates with experience in employment or business litigation are strongly preferred. Our firm offers excellent salary and bonuses commensurate with experience and demonstrated ability. Benefits include health insurance, dental insurance, 401k profit sharing, and meaningful perquisites. Qualified candidates should submit a cover letter, resume, and writing sample to Teresa Ford at tford@lebeauthelen.com. Resumes will be held in confidence
Mercer is working with the Kern County Bar Association to provide direct access to the State Bar Sponsored Lawyers Professional Liability Insurance Program in a way that supports the KCBA and its mission. For more information please contact: Jack Witherspoon 415-983-5658 Information regarding the State Bar Sponsored Professional Liability, Life Insurance, Accidental Death & Dismemberment and Workers Compensation programs, including easy to complete on-line applications, is available at: www.mybarbenefits.com
SAVE THE DATE
2021 Bench and Bar Social
Thursday, October 21, 2021
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ON THE COVER
The digital installation of KCBA’s 2021 president, Alekxia Torres-Stallings. [screenshot by Amber M. Chiang]
The Bench and Bar Social is a unique opportunity for members of the Bench and Bar to share in our common interests and interact in a casual and fun atmosphere. This unique event encourages a spirit of partnership and aids in preserving and improving the fair administration of justice in our community.
The State Bar of California’s Lawyer Assistance Program The State Bar's Lawyer Assistance Program (LAP) is here to help lawyers who are grappling with stress, anxiety, depression, substance abuse or concerns about their career. Our counselors can offer a free assessment of your situation and help you get the help you need, whether it’s for a mental health issue, substance abuse or a medical condition. (There are some fees if you join a group or need additional services.) Douglass Hull, Director Lawyer Assistance Program 877-LAP-4HELP 877-527-4435 Email: LAP@calbar.ca.gov
CONTENTS FEATURES
PEOPLE AND FIRMS
6 - KCBA’s 2021 President Alekxia Torres-Stallings Hon. Susan M. Gill
21 - CDCR Secretary Visits with Delano Judiciary Gene Garaygordobil
8 - Incivility in the Legal Profession Dan Jacobsen
24 - ‘Universally Respected’ Tim Lemucchi David K. Cohn
12 - Bench and Bar Award: Hon. Kenneth C. Twisselman II David A. Torres and H.A. Sala
25 - Lemucchi Dies at Age 84 complied from local news
DUE TO THE MANDATORY STAY AT HOME ORDER IN THE STATE OF CALIFORNIA, THE BENCH AND BAR AWARD DINNER IS RESCHEDULED FOR SEPTEMBER 16, 2021. SEE STORY AND FLYER STARTING PAGE 12
COLUMNISTS 16 - Joe Regalia Legal Writing Principle #3 18 - H. Dennis Beaver The Case of the State Farm Adjuster 20 - C.M. “Bud” Starr advocatus caecus
JULY/AUGUST 2021
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KCBA MEMBER UPDATE New/Renewed Members Mara Arecalo-Diaz Law Office of Mara Arevalo-Diaz law@arevalodiaz.com Shana Avery averysr@tjsl.edu Jordan Berk Hyperion Investigative Services 1430 Truxtun Avenue, Suite 500 Bakersfield, CA 93301 661-368-8812 jordan@hyperionpi.com Ryan Michael Bowler Kern County Public Defender 1315 Truxtun Avenue Bakersfield, CA 93301 661-868-4799 ryanmikebowler@gmail.com Michael Casey Kern County Public Defender 1315 Truxtun Avenue Bakersfield, CA 93301 661-868-4799 caseym@kerncounty.com M. Esponiza espihomee1@gmail.com Thomas Fallgatter Thomas C. Fallgatter, Lawyer 5740 Vista Del Rio Court Bakersfield, CA 93308 661-747-4170 tom@tcflawyer.com Monique Castruita Galvan Law Office of Monique Castruita Galvan castruitagalvanm@gmail.com Elizabeth Giesick Kern County Counsel 2100 College Avenue Bakersfield, CA 93305 661-868-4280 egiesick@kerncounty.com Diane E. Godinez Godinez Law 1309 L Street Bakersfield, CA 93309 661-302-4949 dgodinez@godinezlaw.net RES IPSA LOQUITUR
Jamila Ha Kern County District Attorney’s Office 1215 Truxtun Avenue Bakersfield, CA 93301 661-868-7619 jamila.ha22@gmail.com Logan Howard Howard Law Firm, Ltd. 91 N. Hughes Avenue Clovis, CA 93612 559-575-0514 logan@howardlawfirm.us
Danielle M. Humphrey The Law Offices of Kyle J. Humphrey 2211 17th Street Bakersfield, CA 93301 661-327-1360 danielle@humphreylaw.com Gurujodha Khalsa Kern County Counsel 1115 Truxtun Avenue, 4th Floor Bakersfield, CA 93301 gksensei@gmail.com Jeanine E. Kraybill CSU, Bakersfield 9001 Stockdale Highway Bakersfield, CA 93311 Gabrielle LaCarre gabriellelacarre@yahoo.com Judge Jeff Mangar Stanislaus County Superior Court 800 11th Street Modesto, CA 95354 jeff.mangar@stanct.org
BreeAnn R. Ruelas breannruelas@gmail.com
Christopher Stansell Kern County Public Defender 1315 Truxtun Avenue Bakersfield, CA 93301 661-868-4799 stansellc@kerncounty.com Kari Underwood Underwood Law Firm 1712 19th Street Bakersfield, CA 93301 661-368-1973 kari@attorneyunderwood.com John D. Underwood Underwood Law Firm 1712 19th Street Bakersfield, CA 93301 661-368-1973 john@attorneyunderwood.com William Wright The Wright Law Office 1800 Westwind Drive, Suite 401 Bakersfield, CA 93301 661-325-5719 law@thewrightlaw.com Elica Zadeh elica.zadeh@gmail.com Richard D. Owen Law Offices of Richard D. Owen 2209 Terrace Way Bakersfield, CA 93304 818-749-6308 richowen@bak.rr.com
Joachim Nwude Law Offices of Joachim Joe Nwude 3465 Torrance Blvd., Suite C Torrance, CA 90503 310-792-6091 nwudelaw@aol.com
Law Students Darren Adjei darren.adjei@pepperdine.edu
Autumn Paine Paine Criminal Defense PC 1032 Truxtun Avenue Bakersfield, CA 93301 661-360-6000 autumn@painelawyer.com
William Garrett Cothran wmgcothran@gmail.com
Fatima Rodriguez rodrigf@tjsl.edu
Tanbeer Singh Brar tbusa97@yahoo.com
Elver Guardado elver.guardado@gmail.com Rebecca Murillo rmmediator@gmail.com
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KCBA’S 2021 PRESIDENT
ALEKXIA TORRES-STALLINGS by Hon. Susan M. Gill (presented at the virtual Installation event in January)
I
t is my distinct honor and pleasure to introduce our new President of the Kern County Bar Association, Alekxia Torres Stallings. Alekxia said she wanted me to introduce her in part because we have so much in common. And, we really do! We both love studying about Europe during World War II. We both followed our fathers, Barney Gill and David Torres, into the practice of law and became their law partners. Alekxia and I both married awesome men–Bill for me and Brandon for Alekxia–who are lawyers, and who are wonderful husbands and fathers. My children like to tell me that Bill and I hit the kid jackpot (and, we did!), and now Alekxia and Brandon have hit the kid jackpot with Siena. Both Barney Gill and David Torres were very involved in the Kern County Bar Association – both served as President and both were awarded the highest honor of this Bar Association, the Bench and Bar Award. They were also both very involved in the California State Bar Association, serving on the Conference of Delegates. Alekxia and I have both served on the Board of Directors of the Kern County Bar Association and the Kern County Bar Association Charitable Foundation. And, we were both elected to serve as President of the Kern County Bar Association. And that is where the comparison ends, because Alekxia is actually going to serve as your Bar President, and I never did, having been appointed to the Bench weeks before what would have been my installation, and instead was Beto Sala’s installation dinner. (Again, I’m sorry, Beto!). So, let’s talk about Alekxia Torres Stallings. She was born in Spokane, Washington, while her father, David, was in law school at Gonzaga University. Her mother, Angie, said RES IPSA LOQUITUR
that Alekxia was the best baby. She seemed to know that her mom and dad had their hands full with law school, so she always slept through the night and she was always a good baby. When David graduated from law school, the Torres family returned to California, and fortunately for all of us, they came to Bakersfield. Alekxia’s four siblings, Erica the TV star; Bianca the medical student; Ivana, the brand new lawyer in the family; and David the tech guru, were all born in Bakersfield. Alekxia attended local schools, graduating from Stockdale High School, where she was on the swim team all four years. Unlike most lawyers, Alekxia excelled in math and science. Angie described Alekxia as “a studious kid, a straight A student,” though she assures us Alekxia has always had personality.
in Paris. But, the censorship and patriarchy she encountered in China opened her eyes. Alekxia told me that her female Chinese colleagues were incredibly smart and bright, but their opportunities were shockingly limited. They could not believe that Alekxia, a mere female, had an undergraduate degree and was choosing between two graduate degrees. Alekxia realized that so much of the law is rooted in language, and she decided that her future was in law. She wanted to make sure laws are fair for women and minorities. Although, she now says that if she had known you could earn double degrees, she would have pursued a JD and MD at the same time. She says that when she and Brandon retire, she may then go to medical school. For fun! Angie Torres jokes that Alekxia would have liked to be a professional student. Hey! That’s another thing we have in common!
Alekxia was accepted at U.C. Irvine as a pre-med Chemistry Major. When she learned she could still go to medical school with a different major, she brilliantly changed her major to European studies, with an emphasis in French studies. Unsure of whether to head to Med School or Law School after graduating from Irvine, Alekxia took a break from her education and went to China to teach English. Her experiences in China solidified her desire to be a lawyer.
Alekxia flew through law school at Western Michigan University, Thomas M. Cooley, in Ann Arbor in two years!
Alekxia explained that China was not her first foreign country experience. In eighth grade she visited one of our sister cities, Wakayama, Japan, with her school choir. During high school she spent a summer studying Spanish at the University of Guadalajara, Mexico. And, she spent a summer abroad during college, studying French at the Sorbonne
Music is important to Alekxia. She has played the piano since she was three–her mother says she can play a mean Moonlight Sonata. Alekxia is also well traveled. In addition to her forays in Mexico and Asia, she and Brandon have traveled through 15 countries in Europe. They both won awards for their travel photography at the 2019 Kern County Fair.
Speaking of language, although our new President speaks perfect English, her first language was Spanish. She can also speak the universal language of China. And, Alekxia and Brandon are teaching Siena to speak English, Spanish, and Chinese. The baby is already correcting Brandon’s Spanish.
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Alekxia’s father and law partner, David Torres, knew when he watched his daughter conduct voir dire during her first trial that she was a natural trial lawyer. He sat second chair during that first trial, but Alekxia did it all–the motions, voir dire, and the trial. This first trial resulted in a not guilty verdict after the jury deliberated less than 30 minutes! Her most recent trial also resulted in a not guilty verdict in less than 30 minutes. Alekxia’s colleagues are impressed by her passion and her commitment to her clients. Emily DeLeon said that Alekxia figures out what her clients need, and then everyone else needs to get out of her way, because she will make sure her client’s needs are met. Emily described Alekxia as cosmopolitan and glamorous (her favorite “colour” is leopard), yet she is humble and approachable. David Torres has counseled his daughter on the important things in the practice of law. He told her she must never miss a deadline, and she hasn’t, even when she was pregnant. She tried a case during her last week of pregnancy with Siena. (There’s another thing we have in common–I went into labor at court
twice.) David explained that her integrity is absolutely essential; she must always be ethical and honest. I can attest to Alekxia’s integrity and her Washingtonian commitment never to tell a lie. I sat near Brandon and Alekxia at the Charitable Foundation’s Celebration Reception in March of 2019. I noticed that Alekxia chose sparkling cider for the toast to the lawyers who had passed away during the previous year. She was horrified when I asked her if she was pregnant, because she couldn’t lie to me, but she hadn’t yet told her parents. What should she do? Let me just say that her record is clean, she has never told a lie. David and Angie instilled in their children the importance of service and giving back to their community. Alekxia has taken this to heart. She has been involved in the KCBA from the moment she became a lawyer. And, when I say “involved in the KCBA,” I mean INVOLVED! She has been the President of the Young Lawyers Section, a member of the Board of Directors, and she has been a valuable member of the Charitable Foundation Board of Directors. Alekxia coached Mock Trial at Stockdale High School for five
years. Under her tutelage, Stockdale won the County tournament and took seventh place in the State Competition. And, Alekxia and Brandon help educate the scoring judges by sparring against each other in a mock pretrial each Super Saturday. Alekxia has participated in Law Day at the Mall, where lawyers advise people about various issues. In working with the late GBLA attorney Marcos Vargas to save the driver’s license of a former foster youth who was at risk of losing virtually everything if he lost his driver’s license, Alekxia realized the youth of our community had legal needs and no easy avenue to meet those needs. As President of the YLS, Alekxia brought the ABA Young Lawyers project, Project Street Youth, to Bakersfield. She put together a group of young lawyers and partnered with GBLA to help homeless youth overcome obstacles to success. The youth were able to relate to these young lawyers, who volunteered their time to dispense advice about emancipation, employment law, and other legal issues. Installation, continued on page 10 JULY/AUGUST 2021
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INCIVILITY IN THE LEGAL PROFESSION “A by Dan Jacobsen
lthough we have not as yet reached the point where the participants at a deposition will be required to be licensed by the state boxing commission [citation], we note with dismay the ever growing number of cases in which most of the trappings of civility between counsel are lacking.” Townsend v. Superior Court, 61 Cal. App. 4th 1431, 1438 (1998). Although 23 years have passed since Justice Arthur Gilbert’s ruling in Townsend, it is apparent that incivility in our profession is still “ever growing.”
But before one can solve a problem, one must define the problem. So what is incivility in the legal profession? Funk & Wagnalls defines “civil” to mean “Observing the social proprieties; decently polite; not rude.” So, “incivil” can be said to mean not observing the social proprieties; not decently polite; and being rude. In addition, to attack the problem of incivility, an addition was made to the oath for new attorneys. It now reads, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” From these sources one can properly define incivility in the legal profession as such: The practice of law by way of behavior that is without the social proprieties, decent politeness, dignity, courtesy and integrity; and with rudeness. Any argument that such behavior is excused by a lawyer’s duty to zealously advocate for his or her client must fall on deaf ears. “The idea that zealousness can be an excuse for unethical and unprofessional behavior is a pernicious disease that threatens to eat away at the integrity and nobility of the court as an institution.” In re RES IPSA LOQUITUR
Moncier, 550 Fed. Supp. 2nd 768, 807 (E.D. Tenn. 2008). While Moncier calls the excuse of zeal “a pernicious disease,” it is fair to categorize all of incivility in the practice of law as such. As all attorneys are officers of the court, it is apparent that that “pernicious disease threatens to eat away at the integrity and nobility” of the legal profession, and to eat away at attorneys themselves. The authorities tell us that the germ of incivility dates back to at least the 1970s. “Like tennis, the legal profession used to adhere to a strict etiquette that kept the game mannerly. And, like tennis, the law saw its old standards crumble in the 1970s and 1980s. Self-consciously churlish litigators rose on a parallel course with Jimmy Connors and John McEnroe.” Gee & Garner, “The Uncivil Lawyer: A Scourge at the Bar,” 15 Rev. Litig. 177, 190 (1996). What happened in the 70s to trigger the rise of incivility? Author and Engineer Randal P. Munroe has said, “Correlation doesn’t imply causation, but it does waggle its eyebrows suggestively and gesture furtively while mouthing ‘look over there.”’
In 1977, U.S. Supreme Court disallowed then-existing rules around the nation that banned legal advertising in general. Bates v. State Bar of Arizona 433 U.S. 350 (1977). In his opinion dissenting in part and concurring in part, Chief Justice Warren Burger said, “[T]he exact effect of [outlawing the rules against attorney advertising] cannot now be known.” That was 1977; it seems now we know what Bates unleashed. Cases demonstrate that the pernicious disease of incivilism has grown exponentially since Bates. Correlation. Businesses are indeed competitors, and at times fierce competitors, but sometimes they’re just selling hardware. Litigation attorneys are always at DEFCON 1. When an attorney answers the phone or opens an email, a figurative bomb may go off. But as a professional, the attorney’s response to that “bomb” is supposed to be tempered by social proprieties, decent politeness, dignity, courtesy, integrity and a disdain for rudeness. That worked until Bates. Consider, it is plain that a business advertises, and it was plain that generally attorneys didn’t
advertise prior to 1977. A factor in the answering the phone/response equation changed. Attorneys advertised, and thus acted like businesses. Adding behaving like a fierce competitor to the already combustible combatant part of being an attorney was too much for many attorneys to respond to the phone call with dignity, courtesy, integrity and without rudeness. The cases that make clear the progressive nature of the pernicious disease, from its formation to the present, are telling. Any gestating disease takes time to form. By 1989 incivilism had bubbledup to Division 5 of the 1st District Court of Appeal: “We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel. All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own
course. The legal profession has already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.” Lossing v. Superior Court, 207 Cal. App. 3d 635, 641. In 1994, Justice Gilbert of Division 6 of the 2nd District Court of Appeal, who would later author Townsend, opened his opinion in Green v. GTE California, 29 Cal. App. 4th 407, 409 with this: “If this case is an example, the term ‘civil procedure’ is an oxymoron.” Green involved what the court “euphemistically call[ed] a verbal altercation, so lacking in civility, that we decline to repeat it here.” In 1997, Division 3 of the 4th District Court of Appeal published Pham v. Nguyen, 54 Cal. App. 4th 11. In that case Justice James Sills warned,
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“The law should not create an incentive to take the scorched earth, feet-to-the-fire attitude that is all too common in litigation today.” Five years later, in DeRose v. Heurlin, 100 Cal. App. 4th 158 (2002), an attorney wrote to opposing counsel, “I plan on disseminating your little letter to as many referring counsel as possible, you diminutive shit.” In 2011, Division 2 of the 1st District Court of Appeal tried to ward off the pernicious disease as Division 5 did in Lossing: “We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of ag —that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. ... Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” In Re Marriage of Davenport, 194 Cal. App. 4th 1507, 1536. Incivility, continued on page 10
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Incivility, continued from page 9
Division 3 of the 4th District found the facts in Kim v. Westmore, 201 Cal. App. 4th 267 (2011), so appalling that the panel went nuclear. Justice William Bedsworth wrote, “Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It is time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.” The court sanctioned the errant attorney $10,000. In extreme cases a strong steroid is needed to treat incivilism. Although powerful “teeth” were not only justified, but necessary in Kim, Justice Bedsworth recognized that unwarranted requests for sanctions can be part of the problem. The court put quotations marks around a question that it asked itself: “‘How much do you sanction an attorney who lies to the court, seeks unwarranted sanctions, bullies opposing counsel, shows no remorse, and effectively vows to continue such tactics by endorsing his conduct when challenged on it?”’ It may be that, like COVID-19, incivilism hit the bigger cities first. After moving to Oregon in 2010,
Peter Appleton, retired president of the Beverly Hills Bar Association wrote, “[W]hen I was practicing in Los Angeles almost every motion or opposition I saw contained a word processor request for sanctions. I always wondered what our clients thought about our fascination with sanctions. Sanctions are like the lottery. Can we intimidate our opponent? Can we get a busy frustrated judge to make an award big enough to inflict serious financial damage on him or her? If so, will he or she beg for mercy? Will he or she abandon his or her client? Let’s go for it. Bingo.” Appleton, “Parting Thoughts: Sanctions are Like the Lottery.” 71 Or. St. B. Bull. 62 (2010). In 2019, Justice Bedsworth diagnosed a major cause of incivilism, and simultaneously suggested a cure. In Lasalle v. Vogel 36 Cal. App. 5th 127 (2019), Justice Bedsworth’s discussion lamented that lawyers now very often think of their practice as a business rather than a profession. The facts of Lasalle can be summedup as a race to the courthouse to file a default before an answer was filed. “[Practitioners] have heard the mantra so often unthinkingly repeated that, ‘This is a business,’ that they have lost sight of the fact the practice of law is not a business. It is a profession. And those who practice it carry a concomitantly greater responsibility than businesspeople.” In diagnosing the problem, Justice Bedsworth suggested a cure. A
business doesn’t have the noble responsibilities with which the legal profession is ladened. It is with pride that an attorney can say “My profession requires its members to follow social proprieties, be decently polite, behave with dignity, behave with courtesy, behave with integrity, and behave without rudeness.” This author is not suggesting that businesses don’t so behave; he is saying that, attorneys are required to so behave. Be proud of that. That pride can act as an antidote to the pernicious disease. British philosopher Rabbi Jonathan Sacks said, “The Hebrew Bible contains multiple provisions to ensure that no one would go hungry.” Similarly, incivilism has multiple cures. The cures shown here are pride in the profession’s values, blunt force in extreme case, and sunlight, which is implied in the courts’ publication of the post-Bates cases. There have to be others. The profession is beseeched to publish and shout from the mountain tops, well-thought-out cures. Together we can kill the pernicious disease, kill it before it “eat[s] away at the integrity and nobility” of the courts, the profession and attorneys themselves. Dan Jacobson is a practicing attorney in Tustin. He is also a member of the California Board of Accountancy (appointed by Assembly Speaker Anthony Rendon), an expert witness in insurance cases, retired Chair of the Democratic Foundation of Orange County, and a member of the adjunct faculty at Pacific West College of law. This article first appeared in the Daily Journal and is reprinted with permission.
Installation, continued from page 7
Brandon is proud of Alekxia for using her legal training and skills to benefit her community. He describes her as rolling up her sleeves and really getting into the nitty gritty. She has invested herself in the work of each project she has taken on. Just last week Alekxia’s service on the Judicial Advisory Committee for the Eastern District of CA brought her into the same Zoom room with United States Supreme Court Justice Sonia RES IPSA LOQUITUR
Sotomayor! This is the second time she had met Justice Sotomayor, the first time being ten years before with a group that included Kern County Judge Wendy Avila. This tireless young lawyer also makes time for the most important aspects of her life, her family. She is a wonderful job mother to Siena and a loving wife to Brandon. Alekxia’s family say she has embraced motherhood with the
same zeal in which she embraces the law and her projects. Now, she is not only breaking barriers for women in general, but also for her own daughter. She genuinely wants to make this world a better place for Bakersfield and Kern County, but also for Siena. The Kern County Bar Association is tremendously lucky to have Alekxia Torres Stallings as its new President.
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BENCH AND BAR AWARD: HON. KENNETH TWISSELMAN by David A. Torres and H.A. Sala
E
ach year, our bar association recognizes and honors the exceptional lifetime achievements of a member from our community with its highest honor, the Bench and Bar Award. The award is bestowed upon individuals who have brought “recognition in the community of outstanding service to the administration of justice and the legal profession.” The awardee is selected by esteemed members of the bench and attorneys whose law practices represent both civil and defense bars including government agencies in our legal profession. This year, the Kern County Bar Association Board of Directors unanimously accepted the nomination of their Bench and Bar nomination committee and selected the Honorable Kenneth Twisselman as this year’s nominee. Those who know Hon. Twisselman, know him as a judge of high morals, intellect and standards who is an ardent follower of the rule of law, and an unselfish public servant well respected amongst his peers. Many of us know Judge Twisselman either as a bench officer presiding over a criminal case, or perhaps fortunate to argue before him in a complex civil CEQA (California Environmental Quality Act) case, or perhaps you have met and spoken to him on occasion at a Kern County Bar event. After speaking to Judge Twisselman, it does not take long for the average person to recognize the type of person he is. Judge Twisselman is intelligent, humble, caring, passionate about the law, a true believer in justice, and even more importantly, a man who finds solace in his family and in his religious faith. The Twisselman family has served RES IPSA LOQUITUR
the Kern County community as ranchers and farmers for five generations since the 1860s. Judge Twisselman’s great great grandfather owned dairy and cattle ranch operations in San Luis Obispo and Kern Counties. Later, his grandfather purchased the Temblor Ranch in
Kern County continuing their farming and cattle businesses here. In fact, to this day Judge Twisselman’s parents continue residing on the ranch along with two brothers. While Judge Twisselman was raised on the Temblor Ranch, he became an avid horseman, astute businessman,
and was active in the family cattle business and developed his own beef cattle herd before attending law school. Judge Twisselman is proud to say that he is a product of the local public school system, and was one of six who successfully graduated from the 8th grade class at McKittrick Elementary. He later graduated from Taft High School and Taft Junior College. Judge Twisselman earned his Bachelor of Arts degree in Psychology from the University of California, Davis, and his Juris Doctorate from the prestiges University of California, Hastings College of Law. During law school, Hon. Twisselman was a law clerk for former Supreme Court Justice William P. Clark. After passing the California Bar examination, Judge Twisselman was an associate with various local law firms such as DiGiorgio, Davis and Klein (1977-1979), William C. Kuhn (1979-1980), solo practice from 1980-1983, Fachin, McCartney & Twisselman (1983-1987) and Werdel and Chaplin (1987-1988). Hon. Twisselman was appointed to the bench in 1988 by the Governor George Deukmajian. After his appointed to the bench, Hon. Twisselman was assigned a trial courtroom. In the 30 plus years that he has been on the bench, he has presided over the adult Criminal Calendar,served an assignment at the Juvenile Courthouse, Presided over Family Law courts for 3 years, presided over the civil calendar in 2005, and is presently assigned a felony trial court. Judge Twisselman estimates that he has presided over an amazing 350 felony criminal trials to verdict to include presiding over four high profile death penalty trials that went to verdict. He has presided over 35 civil jury trials, countless preliminary hearings, and in 2003, was handed the gavel to preside over the complex CEQA actions filed. The CEQA calendar was previously presided by Hon. Roger Randall, retired. In addition to his trial work, Hon. Twisselman has served on the
presiding judge’s advisory committee since 2017. As supervising felony judge, he arranges judicial education presentations every three months for the Kern County Bench. These educational seminars provide our bench officers with updated decisions and California Courtroom procedures so that our local court system can continue its notable reputation of providing a high level of effective and efficient jurisprudence in Kern County. Apart from judicial responsibilities, Hon. Twisselman has been actively involved with Kern County Bar activities which benefit the community and our youth. For well over 30 years, he has been an active part of our local Mock Trial Competition. From 1982 until 1987, he was the Shafter High School Mock Trial attorney coach. After his appointment to the Superior Court Bench in 1988, he continued his involvement as a presiding judge in Mock Trial almost every year since. As a Mock Trial mainstay, he has had the distinct honor of presiding over the top two schools in the final round for the past 10 years or more. Over these 10 years, he has been designated by various presiding judges to speak on behalf of our court to the participants during the Mock Trial awards ceremony. Our local Mock Trial program has served as a local attorney pipeline for years. Many reputable attorneys in our community were products of the Mock Trial program. Fortunately, these young Mock Trial participants have had a remarkable and impressive Bench officer presiding over their cases and offering positive advise for the future. The quality of lawyers the Mock Trial program has produced is a stark example of the positive image projected by Judge Twisselman. Presiding Court Judge Judy Dulcich agrees and stated, “I cannot think of a more deserving person for the Bench and Bar Award. Judge Twisselman is one of our most senior members but still continues to serve, going above and beyond. He tries the most serious and complicated Twisselman, continued on page 14
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ABOUT THE KERN COUNTY BAR ASSOCIATION EXECUTIVE COMMITTEE Alekxia Torres-Stallings President Xochitl Garcia Vice President T. Mark Smith Treasurer Thomas Feher Secretary Joseph Hughes Past President DIRECTORS Anthony P. Azemika Carol Bracy Devin Brown Michael Caves Gina Cervantes Diana Christian Stephanie Gutcher Paul Harman James Harvey Micah Nilsson
ABOUT THE KERN COUNTY BAR ASSOCIATION CHARITABLE FOUNDATION EXECUTIVE COMMITTEE Barry L. Goldner President Patrick E. Jennison Vice President Catherine E. Bennett Chief Financial Officer Susan M. Gill Secretary
DIRECTORS Hon. Tom Clark John Stovall Seth O’Dell T. Mark Smith Joe Hughes Alekxia Torres Stallings
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Twisselman, continued from page 13
Felony Criminal cases, and he is the Supervising Judge for the Felony Criminal Judges. He takes this role very seriously and provides regular training and information sessions to the criminal judges.” Former Presiding Judge Colette Humphrey said this about Judge Twisselman’s work ethic, “Judge Twisselman is one of the hardest working judges on the bench. He takes on the most serious and complicated cases without complaint. For years he has handled the CEQA assignment which requires many hours of work above and beyond his normal assignment. And he continues to treat attorneys, litigants, and court staff with respect and kindness.” Many trial lawyers will agree that Judge Twisselman is the type of judge who places patience and justice as priority in a felony trial or CEQA hearing. On the bench, Judge Twisselman is firm, yet fair. It is his practice to allow the attorneys
to be attorneys in presenting their respective cases, however, he expects extensive case preparation from all advocates who appear before him. In his courtroom, a litigant can expect a better jury panel and allow justice to be served without rushing the prosecution or defense in their respective case-in-chiefs. As noted above, Hon. Twisselman is a judge who has passion and patience for the law and places patience above speed in administering justice. As Judge Twisselman once noted, “[E]arlier in my judicial career I got a mix of criminal and civil jury trials when I had general trial court assignments. After a few years I realized that I preferred longer trials, in my opinion you get better jurors, better attorneys, and I enjoyed the challenge of managing more complex cases. That took me out of the running to compete with the judges who wanted to preside over the highest number of jury trials per year.”
Author Ellen Barrier once wrote, “The strength of a man is in his character. A strong man is a great man of wisdom who understands, his top priority is to his family.” For years, Judge Twisselman was a singleparent raising three daughters. It wasn’t until 2003 when he married the love of his life, Teresa who at the time was the single mother of two girls. In the 17 years their marriage, their family has grown with 8 grandsons and 1 grandaughter. Teresa and Judge Twisselman are expecting the birth of their 10th grandchild arriving this June. Judge Twisselman is a man of probity and rectitude who truly deserves this honor on behalf of our bar association. In awarding him this honor, we thank him in recognizing the positive image of our legal system that he has projected throughout our community for over thirty years.
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LEGAL WRITING PRINCIPLE 3 by Joe Regalia
Principle 3: Craft Rules
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urvey after study agree that most lawyers don’t know how to write about rules. Caselaw, statutes, regulations. Whatever rule it is, for some reason, lawyers struggle with it. Judges say lawyers don’t explain how the authority supports their rules, they don’t dig deep enough into the authority to get the meat, and they seem to throw out all their good writing sense as soon as they cite a case. Your judge (or any other legal reader) will need to craft a compelling account of how the rules work. So you should, too.
explanations—or slogans. By distilling your interpretations into a pithy sentence or two and setting it out at the beginning of your rule sections, your reader will have an eminently easier time following along with even the most complex legal quagmires.
This is so important, because how you write about the rules has the power to change everything. And it all starts by shifting your perspective to stop thinking of rules as “things you have to find” and start thinking about them as “things I have to make.” In other words: You can (and should) take control of telling your readers how to interpret the rules and how to apply them. No one else can do that for you.
For example, take this packaged rule from an appellate lawyer: Whether a putative class member has standing to object turns entirely on whether they will lose money when the class is certified.
Look at how this judge takes a long, convoluted rule statement and explains it in simple, clear terms.
Authority Evidence Second, get more sophisticated about how you prove your rule interpretations. I call this using authority evidence. Authority evidence is the stuff you use to persuade your reader that your take on the rule is worth following. Like factual evidence, authority evidence comes in many forms, like quotes from cases, fact to fact case comparisons, analyzing case quality, and so much more. Also like factual evidence, all authority evidence is not created equal, nor is it equally useful in every situation. Instead, you should think hard about what authority evidence you can round up and which types will be most persuasive to your particular audience.
First the boring version: The State must first “exert its prosecutorial discretion in a proper manner and make a determination as to the propriety of the bill of charges.” State v. Iverson, 523 F.3d 31 (9th Cir. 1982). Additionally, the “important presumption of innocence is irrefutable and maintained through all stages of the matter up until and unless a conviction of guilt is properly imposed by a jury.” Id. The sentencing phase is the final step in the criminal process and is undertaken by the court. Id. Now the better version: Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. To write clear rules like this, try a three-step process. Rule Slogans First, package your winning interpretations into simple RES IPSA LOQUITUR
This snappy headline instantly gives your reader a snapshot of your take on how the rule works.
For example, take case quotes. Many lawyers rely on these without much thought—but you can be more deft. Think about what the court did not say—obvious absences in the language that may signal something more important. Consider whether any language is contradicted by other words in the opinion. And much more. Fluent Rules Third, make sure your rules are simple, clear, and easy to process. In other words—make them fluent. (You can read more about Fluency, which is Principle 4, here.) You might have the winning rule interpretation and the best authority evidence to support it, but if you don’t explain your rule clearly, it may not matter.
Other Tools for Crafting Better Rules Try these other tools for crafting better rule sections. Use your own words Unless there’s a reason to quote (e.g., statutory language or when the original writer matters), explain rules using your own, simple, words. Frame rules persuasively Instead of copying and pasting the rule’s language, try to rework the rules so that they are in a form that pushes your reader towards the ultimate goal. Like putting the least favorable parts into a dependent clause—deemphasizing them. Use places of emphasis Emphasize the parts of the rule that help you, like putting the favorable rules in places of emphasis (headings, introductions, and the starts and ends of paragraphs and sections). Signpost your citations Lawyers constantly drop citations on readers without signposting how that citation supports their sentence. Especially when it’s an important part of the rule that you
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need to win your case—avoid relying on empty citations. Do the inferential reasoning for your reader and put it on display: “Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed.” Park vs. Hoffman, 324 F. 3d 42, 44 (9th Cir. 2018).
Avoid the ole’ dump and conclude When discussing rules and authority, many legal writers do the ole’ dump and conclude. They list a bunch of facts from a prior case, then drop a single conclusion at the end about what that means for the rule. Instead, only list facts if you need to—and with a purpose. Try explaining how the prior court used the facts as you go, not just in conclusion at the end. Move cites to the end of sentences Consider moving citations to the end of sentences. And consider putting the court, year, and other quality information directly in the text, if it’s helpful. Support controversial rules When a rule is unsettled or particularly controversial, provide extra, extra detail. Tell the whole rule story and analyze as many cases and sources of support as you can. Attack opposing authority Many lawyers run away from the other side’s best authority. Don’t do that! Identify the opposing party’s best case—and destroy it with particular gusto. Reframe your opponent’s argument Try reframing (accurately and fairly) the other side’s most critical interpretations. For example: “Thus, as read by the [other side], Williamson County sends these plaintiffs to state court, while state law directs them back to federal.” Make your argument first Generally, make your best case first—then tear down the opposing party’s rule interpretations. Remember: Rule sections are one of the most important parts of your document. Use these techniques to craft persuasive rules that help you win. Joe Regalia is a law professor at the William S. Boyd School of Law and co-founder of Write.law, a legal e-learning company for lawyers and legal professionals. Joe is a nationally recognized legal writing and technology consultant for law firms, courts, agencies, nonprofits, corporations, and other organizations. His research and teaching focus on legal writing, persuasion science, technology, and innovation. Joe graduated first in his class at the University of Michigan Law School. He went on to clerk for the U.S. District Court and the U.S. Court of Appeals for the Ninth Circuit. Joe previously practiced at the international firms of Wilson Sonsini, Sidley Austin, and King & Spalding. JULY/AUGUST 2021
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THE CASE OF THE STATE FARM ADJUSTER by H. Dennis Beaver, Attorney at Law The Case of the State Farm Insurance Adjuster Who Thinks Saint Louis is in California and the Driving Instructor who Needs a Refresher Course If your auto insurance is with State Farm, today’s story will both make you angry and chuckle at the same time. As you will see, the way in which a State Farm claims adjuster treated 21 year-old Allison Ashbrook of St. Louis, Missouri–and their own insured who caused the accident--is not only shameful, but puts the “B” in blackmail. “I Didn’t Look Before Backing” As Allison Ashbrook of Saint Louis, Missouri explained: “On May 4th, I drove into the Jack in the Box parking lot on Telegraph Road in Saint Louis headed toward the drive-through window, when the passenger side of my car was smashed by a vehicle backing out of a parking space so suddenly that I was unable to react. “I never saw lights or movement before the impact occurred. Both passenger-side doors were badly dented and the side-mirror was knocked off.” She sent photos and repair estimates which run from $4,000 - $5,000. Allison isn’t claiming injuries. All she wants is to get her car fixed. You would think that a claims adjuster would respect that, right? Wrong. You haven’t met State Farm claims adjuster Aharon Espino. Both cars parked, and the parties exchanged information. The driver at fault is Patrick Gilfoy who, ironically, is the owner and only instructor at West RES IPSA LOQUITUR
County Driving Instruction in Saint Louis, MO. His website proudly states, “My instruction takes place behind the wheel with oneon-one training, [including] parking lots...” (I can just imagine his lecture on backing out of parking spaces. “First, put on this blindfold and your car into reverse, say a prayer that no one is behind you, and floor it!”) “Mr. Gilfoy was very polite and immediately apologized, admitting that he did not look before backing. Even though there were three police officers about 100 feet from our position, he did not want to get a police report,” Allison said. Odd. 3 police officers standing right there and Patrick does not want a police report? “This is the Mafia, uh, State Farm Calling” “I reported the incident immediately to his insurance company, State Farm. The following day they called, took my statement and shortly thereafter adjuster Aharon Espino sent me a letter stating, ‘You were 25% at fault for inattention and failing to take evasive action.’ “I was told that unless I accepted their decision as to my percent of fault, they would not discuss property damage! Also, Espino’s letter referred to California Insurance Regulations!
I wondered, “Does he know that Saint Louis is about 2,000 miles from California?” (I need to send Aharon Professor Beaver’s book, North American Geography for State Farm Adjusters.) Allison–justifiably–felt blackmailed. “It was either admit fault or forget my property damage! That is so wrong, how can State Farm treat people that way?” she wondered. I did too, yet, despite her authorization to discuss this case with me, State Farm’s spokesperson, Sevag Sarkissian, has stonewalled. But he acknowledged that holding
property damage issues hostage is wrong, writing:
An Insurance Bad Faith Saint Louis Attorney Gives Her Opinion.
“Liability decisions are not a precursor to working with a customer to help them present their claim. Having an estimate prepared may also assist in further understanding how the loss occurred on an individual claim.”
“Saying, ‘I need to agree to your determination before we discuss property damage,’ is not only bad faith but vexations refusal to settle as well,” says Saint Louis, MO attorney Cassie J.C. Bugalski.
And then, guess what? When Allison fully complied with State Farm’s request to send photos and repair estimates, it was time to punish her by saying, “We are going to total your car, not repair it. They offered her $1700.00. I checked with dealers across the country and CarFax; all show the value of her car close to $5,000 in today’s hot used car market.
“This would put State Farm in violation of Missouri law and not representing their insured as well by not protecting his interest so he is not sued. They have harmed him and he has the right to sue them for it. I find it comical that they think they can do this but it doesn’t surprise me with State Farm. We’ve filed suit against several insurers for similar behavior.”
Small Claims Court Next “I don’t want to, but am prepared to take Mr. Gilfoy to Small Claims Court. That will probably make headlines: ‘Driving School Instructor Sued for Parking Lot Accident,’ she said.
California insurance bad faith attorney Dan Veroff agrees with his Missouri colleague, and says: “State Farm commonly acts like this and it disgusts me every time I watch a State Farm commercial, because they spend so much money lying to
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you. Your article will help counter the message that State Farm is a good company because they are not. They are one of the worst.”
I left voice mails for Patrick, urging him to get his lawyer involved and tell State Farm to get the matter settled so that he isn’t sued. The other sad part of this story is how badly it reflects on the many good, honest and decent State Farm agents across the country, many who have helped me with this column across the years. They have become victims as well. Stay tuned. Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@ Gmail.com. And be sure to visit www. dennisbeaver.com.
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ADVOCATUS CAECUS T by C.M. “Bud” Starr
his winter saw the second impeachment trial of Donald Trump. The House Impeachment Managers, led by Maryland Representative Jamie Raskin, a Harvard Law School graduate and third-term Representative, made a powerfully emotional case, which is always helpful in a prosecution. Defense attorneys Michael van der Veen, David Schoen, and Bruce Castor had a common disadvantage in defense cases in that they represented someone whose public persona, established over the past five years, was that of a jackass.
An underlying, and almost unspoken issue was whether this was a legal trial or a political trial. Liberal Democrat law professor emeritus and commentator Alan Dershowitz made forceable arguments that the trial was a legal process strictly to be controlled by the Constitution. Conservative commentator and Harvard Law graduate Ben Shapiro pontificated that such proceedings are almost purely political. Most of you readers have real jobs and could not afford the time to listen to the whole trial. I had the luxury of tuning into C-SPAN Radio and hearing almost the entire proceeding. There were no witnesses. Evidence was offered by selected productions of video clips, references to published news articles and broadcasts, and personal experiences. In addition, the jury of one-hundred Senators were among the identified victims. Representative Raskin and the House Impeachment Managers were given sixteen hours to present their case, and they used something over eleven hours. The defense team was also given sixteen hours to present their case, and they used less than three hours. The cases were presented after a 56-44 vote determined that the Senate had jurisdiction to try a former President who had already left office. Since there was no examination of witnesses, personal public speaking style really stood out. One House Manager shone; Stacey Plaskett, the Delegate from the U.S. Virgin Islands, was a tremendous presenter and, I would suspect, will have a brilliant future in national politics. Defense attorney Michael van der Veen shone in his directness and complete responses to the House Managers’ case. Ultimately, the riots of January 6 were terrible, the videos and personal stories about them were extremely distressing, and the evil they represented could not be RES IPSA LOQUITUR
denied. Attempts by the House Managers to link former President Trump to the evil relied upon carefully edited excerpts from his speech emphasizing his use of the word “fight,” along with a statement that he had used the word “fight” on twenty occasions in his 71-minute speech on January 6. The defense showed the context of all twenty uses of the word “fight” to refer to political action such as supporting Republican Senators and making primary challenges to those Senators who would not support Donald Trump. Finally, the House Managers urged that defenses like the First Amendment and lack of due process did not apply to this trial because the action was civil in nature, not criminal, because Donald Trump was not facing even a single day of imprisonment. I was entertained by that contention. The burden on the House Managers was to prove treason, bribery, or other high crimes and misdemeanors. The ultimate vote from each Senator would be guilty or not guilty. As a prosecutor for over 29 years, that sounded like a criminal proceeding to me. You probably know the vote was 57 for guilt and 43 for acquittal, not meeting the two-thirds necessary for conviction. Whether you consider the trial a legal proceeding or a political one, it was very interesting to those of us who practice law. About the author: C. M. Starr II is an attorney retired from the District Attorney’s Office. He spends much of his time listening to audiobooks and is currently helping to establish the Kern County College of Law. He writes for Res Ipsa Loquitur as an outlet for his need to pose questions beyond those raised by his former legal work.
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CDCR SECRETARY VISITS WITH DELANO JUDICIARY by Gene Garaygordobil, Editor, DelanoNow
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alifornia Department of Corrections Secretary Kathleen Allison visited Delano in June for lunch with local judicial officials. Secretary Allison is the director of CDCR, the top executive officer for California’s entire prison system. She reports only to the Governor. She drove down from Sacramento for our lunch event here in Prison Court. Allison has been VERY helpful to our Delano Prison Court, because we conduct video appearance with inmates in prisons up and down the state. According to the statistics provided by CDCR, we are saving taxpayers more than a $1 million a year with just our one single video appearance camera. Kern County District Attorney Cindy Zimmer was also in attendance. Delano Police Chief Robert Nevarez noted that it has been a pleasure to work with Delano’s Judge David Wolf and the Kern County Superior Court. Chief Nevarez isn’t surprised that Judge Wolf is being recognized by CDCR.“Judge Wolf’s professionalism, knowledge and courtroom temperament have always been topnotch.” With the global pandemic, we all had to do things differently, to problem solve differently, said Kern County Assistant Public Defender Peter Kang. The pandemic hit the criminal court system hard, delaying trials and hearings, and even at times denying an attorney access to their clients. “But the Prison Court was uniquely prepared for this,” Kang said. “Even before the pandemic, we have utilized
video-conferencing and remote technology in his court – which providentially allowed critical access to justice for clients in the midst of a public health crisis. “At first, I was skeptical of remote video appearances,” he said. “But giving clients the choice and ability to decide if they want to appear by video – not only is a convenience to those accused – but in many ways affirms their dignity and autonomy to CDCR Secretary Kathleen Allison and Hon. David Wolf make choices that affect their lives. incarcerated people, but also our communities.” “Clients are never pressured to appear by video,” Kang said. “In This program has not only saved court, Judge Wolf also provides taxpayer money, it has created clients plenty of time and opportunity efficiencies and resulted in thousands to discuss confidentially the pros and of miles saved in travel, the secretary cons of a remote video appearance added. with their attorney before deciding. Secretary Allison said CDCR greatly values our Kern County partners, including Judge Wolf, “as we are all part of a system that each day works for the people of California,” Allison said. “One of the things we greatly value is the ongoing efforts to increase efficiencies in court proceedings through the use of video conferencing for some court proceedings, which was launched well before the pandemic,” she said. “In fact, thanks to the strong foundation Judge Wolf built, we were able to quickly and efficiently pivot to videoconferencing during the pandemic in accordance with public health guidelines, protecting not only staff and
“Inspired by Judge Wolf’s leadership and innovation, we plan to expand this program to other counties to create even more efficiencies,” Allison said. “We remain committed to continuing to work with our partners, and finding ways to advance how we use technology in the system that aligns with public safety and due process.” Edited for currency. Reprinted with permission of DelanoNow.com and McFarlandToday.com. See CDCR’s video of the visit at: https://www.cdcr.ca.gov/ insidecdcr/2021/07/15/cdcr-kerncounty-celebrate-video-courtsuccesses/ JULY/AUGUST 2021
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Charitable Foundation Seeks Photos for Second Notecard Series The Kern County Bar Association Charitable Foundation announces a new project–a second series of notecards with photographs of interest to the local legal community. Our first notecard series featured the art of Bill Means portraying historical Kern County Courthouses. These notecards (pictured on the next page) are still available for purchase at the KCBA office, at a cost of $20. The notecard series operates as a fundraiser for the Foundation’s charitable giving, which includes the donation of books to local schools to celebrate Constitution Day, donations to the local Mock Trial and We The People champions, the Arthur E. Wallace Memorial Scholarship, Get on the Bus, and other worthy projects. The notecards are perfect for correspondence, and they help fund these important projects. For this second series, we are soliciting photographs–of local courthouses, local places of note, or a subject you think would be of interest–taken by local members of the legal community, with all rights to use the photographs donated to the Foundation. No persons should be depicted in any of the photographs submitted. Five photographs will be chosen by the Foundation’s Board of Directors to adorn the notecards, and the photographer will be credited on the back of each card. You may submit your photographs to the Foundation via e-mail to rbeagle@kernbar.org. Use the subject line “CF Notecard Photo Submission.”
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‘UNIVERSALLY RESPECTED’ TIM LEMUCCHI by David K. Cohn
When Tim Lemucchi was a partner at the Chain Younger law firm, several of us attorneys challenged him. Daniel Rodriguez, James Yoro, and I bet we could beat him in the triathlon. I would do the bicycle portion, Danny would run, and Jim would swim. Tim – a tough, skilled, and experienced competitor – would, of course, do all three by himself. We trained a lot for the challenge, but we just weren’t as prepared as Tim was. In the end, we each ended up owing him $100 – which he gladly, but graciously, took. That was Tim. He outworked his opponents and was extremely well prepared. And though we lost, we couldn’t be upset with Tim because he was universally respected – by judges, other defense attorneys, and even his opponents. It was my privilege to be a legal partner of Tim’s for 20 years. During that time, I came to learn that Tim was trial lawyers, trial lawyer. His word was his bond. He never tried to pull a fast one. Tim was probably the most decent attorney I’ve ever met. I never really saw him lose his temper, and he always was cool under fire. His staff was also extremely loyal – he was a good boss and they respected him. He was the epitome of how to be civil For a young lawyer, he was a great mentor. I think I had been practicing for about 6 weeks, and Tim handed me a criminal file. He said, “Here, I think this would be a good experience for you to try a jury trial.” And I did! He gave me pointers and helped me out along the way. It wasn’t long after that I stumbled on a murder case. I went to Tim and said, “I’m not sure how to go about this.” He sat with me RES IPSA LOQUITUR
in court at a preliminary hearing, and he made some great suggestions, including for cross examining one of the police officers. I ended up getting the case dismissed at the preliminary hearing, mainly due to suggestions that Tim gave me. That was pretty cool for a young lawyer. It’s no wonder he was retained to represent Robert Tyack in the infamous double murder case. Tim used a self-defense argument even though the two men were shot in the back. While he didn’t get an acquittal, he ended up convincing a jury not to convict his client of murder. Instead, the jury came back with a verdict of manslaughter. The judge was astounded at the verdict, and how well Tim did in front of a jury. That was Tim’s biggest asset. He really knew how to connect with people, and was wonderful in front of juries. Tim’s low-key demeanor just resonated. He had that common person touch. In another famous case, Tim was hired for the Offord Rollins case. Rollins was a star athlete in Wasco accused of murdering his girlfriend. He did not win the case, but he gained a tremendous amount of respect throughout our community for his work in that trial.
He knew the ins and outs of the evidence code better than any other attorney I’ve known. He was as close to a Renaissance man as they come. Not only was he an athlete and lawyer, but he was also an amazing writer, an outdoorsman who hiked, climbed the highest mountains, and survived helicopter crashes and snowstorms. As much as I was saddened to hear about Tim’s passing, I had a smile on my face knowing he was out on his bicycle, doing what he loved, riding through Hart Park at 84 years old. David K. Cohn is the managaing partner at Chain | Cohn | Stiles.
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From left: David Cohn, James Yoro, Timothy Lemucchi, John Tello, Milton Younger, David Stiles, Curtis Floyd, Heather Nichole. Photo courtesy Chain | Cohn | Stiles.
LEMUCCHI DIES AT AGE 84 Compiled from local media reports Timothy Lemucchi, a longtime and prominent Bakersfield lawyer has died at age 84. Lemucchi participated in some of Bakersfield’s most memorable trials, including that of tire store owner William Robert Tyack, accused of killing two of his neighbors in 1982, and Offord Rollins, the Wasco star athlete accused of killing his girlfriend in 1991. He would be involved in more than 250 jury trials. Colleagues say he had an uncanny ability to read jurors and keep his cool amid difficult circumstances. Lemucchi exemplified the value of diligent pre-trial preparation, and he often tutored younger lawyers after completing his own work for the day. Part of what made him such a good defense and later a personal injury
lawyer was his ability to shift tactics seamlessly after being overruled by a judge.
of himself carrying the Olympic torch ahead of the 1984 games in Los Angeles.
Lemucchi was the son of Italian immigrants who established the iconic Old Kern staple, Luigi’s Italian Restaurant, Deli & Wine, which celebrated 100 years of business in 2010. He attended East High School, Stanford University, and then Georgetown University for his law degree.
His competitive spirit took him on the campaign trail in 1972, when he ran for Congress. Lemucchi was also a longtime supporter of the Bakersfield Museum of Art. He was a writer, authoring books about his family’s history. The latest, “Eddies of the Kern,” is scheduled for release Sept. 1 of this year.
Outside of the courtroom, Lemucchi was a competitive athlete. He regularly competed in Ironman triathlons, took cross-country skiing, hiking and fishing trips, climbed Alaska’s Denali, Mount Whitney and peaks in Russia. He survived a helicopter crash, and mounted part of the wreckage on a plaque in his office, The Bakersfield Californian reported. He also displayed a photo
Lemucchi died July 7 while out on a casual bike ride with a friend, local media reported. He is survived by Margaret, his wife of 51 years; his daughter, Lisa Lemucchi, of Santa Cruz; his sister, Antonia Valpredo; niece Monica Sacco (husband John); niece Lanette Caratan (Christopher); nephew Gino Valpredo (Sandra); and numerous cousins and relatives, many of whom live in Kern County. JULY/AUGUST 2021
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