EFFICIENCY 12 Six steps to be more efficient
JOEL LUECK 16 New IDP Administrator takes over KCBA program
INTERVIEW 29 Interview with Bernard C. Barmann, Jr
RES IPSA LOQUITUR MARCH/APRIL 2020
PUBLISHED BY THE KERN COUNTY BAR ASSOCIATION
On the Inside
HON. KENNETH TWISSELMAN Judge named 2020 KCBA Bench and Bar Award Recipient
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ABOUT THE RES IPSA LOQUITUR DESIGNER Amber M. Chiang rileditor@gmail.com
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.
KCBA MEMBERSHIP UPDATE FOR JANUARY/ FEBRUARY NEW MEMBERS JACQUELINE C. BAHENA The Gorski Firm, APC 209 Truxtun Avenue Bakersfield, CA 93301 jacqueline@thegorskifirm.com
FELICIA MEARS Belden Blaine Raytis, LLP 5016 California Avenue Bakersfield,CA 93309 661-864-7826 felicia@bbr.law
MICHAEL A. CAVES Kern County District Attorney 661-868-2340 mcaves@kernda.org
ZARI HADJIAN Hadjian Law, P.C. 1854 E. 1st Street, Ste 900 Santa Ana, CA 92705 800-806-1172 zarihadjian@hadjianlaw.com
HENRY G. GEREIS Kern County Public Defender 1315 Truxtun Avenue Bakersfield, CA 93301 661-868-4799 GUSTAVO MAYA Klein DeNatale Goldner 4550 California Avenue, 2nd Floor Bakersfield, CA 93309 661-395-1000 gmaya@kleinlaw.com CHRIS DOMINGUEZ Klein DeNatale Goldner 4550 California Avenue, 2nd Floor Bakersfield, CA 93309 661-395-1000 cdominguez@kleinlaw.com CLINTON MICHAEL PIERCE clint@clintonmichaelpierce.com
LAW STUDENTS NICK NICITA nnicita@kerncountylaw.org LUPE PEREZ-GARCIA gperezgarcia@ kerncountylaw.org LORI RIVERA lrivers@kerncountylaw.org SEE YOURSELF HERE. THE RES IPSA LOQUITUR PUBLISHES NEW MEMBERS AND RENEWALS FOR THE TWO MONTHS PRIOR TO ISSUE. MAKE SURE TO INCLUDE YOUR FULL CONTACT INFORMATION WITH YOUR RENEWAL SO WE CAN INCLUDE IT.
AREAS OF PRACTICE GUIDE Advertise in this area. Contact the KCBA at info@kernbar.org for details. Paul Lafranchise The Lafranchise Law Firm plafranchise@gmail.com (661) 549-2737 Employment law on behalf of employees only, including wrongful termination, employment discrimination, and wage-and-hour violations.
LETTER FROM THE designer
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ON THE COVER
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E ARE LIVING in unprecedented times. This issue of the Res Ipsa Loquitur is smaller than recent issues, as the shelter-in-place order from Governor Newsom came just as we began gathering contributions.
Hon. Kenneth Twisselman, 2020 KCBA Bench and Bar Award Recipient. [photo by Nick Ellis]
The quality of the contributions is in no way diminished, however. We have three great features on key persons in the KCBA, as well as new contributions from our favorite columnists. Bonnie Thomson and I encourage your contributions to the May/ June issue, particularly if you seek ways to talk about what it happening in Bakersfield, California, the US, or the world. As a college professor by day, I transitioned my courses to online instruction in mid-March. It then began my goal to give my students funny photos from my office, my family, and my co-professors (Beagles Koko and Lucy). Here’s one from a recent course session where Koko kept me company. If you want to share images of your shelter-in-place situation or write about the experience, the Res Ipsa Loquitur welcomes your contributions.
Amber M. Chiang, designer rileditor@gmail.com
CONTENTS FEATURES
4 - Bench and Bar Award Recipient: Hon. Kenneth Twisselman David A. Torres and H.A. Sala 12 - Six Steps to Be More Efficient 22 - Dealing with Social Isolation Brian Cuban 32 - High Performers But Low Pass Rate Mitchel Winick
PEOPLE AND FIRMS
8 - 2020 KCBA President Joseph D. Hughes 14 - First 5 Kern: Keeping Children Safe Victoria Limbean 16 - IDP Administrator Joel Lueck David Wolf 29 - Interview with Bernard C. Barmann, Jr.
DUE TO THE MANDATORY STAY AT HOME ORDER IN THE STATE OF CALIFORNIA, THE BENCH AND BAR AWARD DINNER IS RESCHEDULED FOR SEPTEMBER 24, 2020. WE WILL PROVIDE DETAILS AS MORE INFORMATION BECOMES AVAILABLE.
COLUMNISTS 7 - Jay C. Smith A View from over the Watershed 20 - Bernard C. Barmann, Jr. Getting the Most Out of Mediation 26 - H. Dennis Beaver Low Interest Rates Don’t Make Structure Settlements a Bad Deal
MARCH/APRIL 2020
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BENCH AND BAR AWARD RECIPIENT: HON. KENNETH TWISSELMAN
[nomination from David A. Torres and H.A. Sala]
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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 the Kern County community as ranchers and farmers for five generations since the 1860’s. Judge Twisselman’s great great grandfather owned dairy and cattle ranch operations in San Luis Obispo and Kern Counties. Later, his RES IPSA LOQUITUR
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
CLASSIFIED INFORMATION EXECUTIVE OFFICE SPACE AVAILABLE Full service Class “A” downtown fully furnished or unfurnished large executive office with secretarial space available as well. Full time receptionist provided, with three conference rooms, reserved parking and other services available for $925.00 per month. Please call 661-327-7051 for information and availability. To place your classified ad here, contact the Kern County Bar Association at assistant@kernbar.org.
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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 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-inchiefs. 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.
MARCH/APRIL 2020
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KERN COUNTY BAR ASSOCIATION:
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Federally Insured by NCUA 1 On accounts other than New Solutions Checking, when minimum balances are met. 2 Funds on deposit at Spectrum Credit Union are federally insured up to $250,000 by the National Credit Union Administration (NCUA). Chevron Federal Credit Union dba Spectrum Credit Union. Federally insured by the NCUA.
RES IPSA LOQUITUR
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THE VIEW FROM OVER THE WATERSHED Huh? And other responses to continuing education. by Jay C. Smith
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PUT OFF DOING my MCLE until the last minute. That’s clever, because that way I get all the most up to date information, right? Sadly, it was not because of any clever reason, it was vecause of my worst vice, procrastination. (At least I think it’s my worst vice—friends, family and folks who just happen to encounter me probably have other candidates.) I’m retired now, so I probably should have gone inactive and avoided the requirement of MCLE altogether, but I like to be able to give minor legal advice or write a letter for someone I know pointing out that it’s a letter from a lawyer* so I’ve stayed active for at least another year. Because I’m retired, I took courses in many things that interest me but are not “relevant” to my practice because I don’t have a practice. Something my brief survey of the current state of the law showed me was that there is too darn much of it. There was plenty back when I was sworn in in December 1976 and it has grown whatever the next stage after “exponentially” is ever since. We’re just inventing problems now. I also was reminded that California statutes remain very poorly written. I admit that it is hard to explain things in a clear, organized fashion and the problem is magnified if nit-picking lawyers are going to give everything you write an exhaustive deconstruction. As may be, though—statutes with numbers like 685.030, with five lettered subparts and six different numbered (sub) sub parts? Why do we still have, for example, two Penal Code sections, one 647 (b) and the other 647b describing different crimes? (I guess that’s better than if they described the same crime, but still.) I once read that California’s statutes’ clarity is suffering because fewer and fewer of our state legislators now are lawyers themselves. I’m sure it was a lawyer who wrote that; we have so little self-awareness. My own thought has always been that except for those few rare exceptions I must acknowledge to protect myself from a devastating counterexample, if a lawyer were a good lawyer, he or she wouldn’t have run for the legislature in the first place.
I do think that the legislators have been pushed into over-broad legislation, especially in the criminal area, because of a paranoid fear that unless the statue covers every possible possibility and its permutations, some sneaky lawyer somewhere will find a loophole. This concern that I believe affects our lawmakers translates into statutes that are written so broadly that conduct that should be non-criminal or at least no more than mischief is felonious. I think of a case my wife once had where her clients were accused of (and, truth be told almost certainly did in fact) the setting off fireworks in mailboxes and were charged with felony possession of an explosive device. A literal reading of Health and Safety Code section 12000 seems clearly enough that firecrackers are within the definition of explosives. Some property damage was done, so the elements of the possession of an explosive were made out. Are M80s dangerous enough to be treated the same as grenades when there is a perfectly good federal vandalism charge that applies to damaging mailboxes? (It carries a maximum of three years and a fine if you want something more specific and possibly punitive than a general vandalism charge.) Common sense prevailed in the particular case, fortunately (my wife was a persuasive advocate) but a kid could have had record of “Possession of an Explosive Device” that was quite misleading. The kid deserved punishment, but he wasn’t a mad bomber. *I think you’ll agree that it’s not fair, but it is a fact that institutions and people in general pay more heed to letters from lawyers than from normal people. They see us as more of a threat or something.
Jay C. Smith is a Bakersfield attorney who retired from the Department of Child Support Services after working there for 15 years. He was in private practice for 25 years before joining DCSS.
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2020 KCBA PRESIDENT JOSEPH D. HUGHES
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N JANUARY 16, 2020, Joseph D. Hughes was sworn in as President of the Kern County Bar Association. Over the past 25 years, Joe has earned a reputation as a respected water attorney. While this tells us what Joe does, we are all still left wondering who is Joe Hughes? After going through the “Hughes” version of a Public Records Act request and a fourteen-day extension period, minimal information was uncovered, most of it protected by some made up exemption. However, it was discovered that Joe was born in San Jose, California on March 18, 1968. Further, we learned that he grew up in Saratoga, California, a small town in the Bay Area. Probably by accident, Joe included a document containing his driving reason for attending law school. Joe’s grandmother was an influential figure in his life. She spent countless years encouraging him to pursue law, however, it wasn’t until his freshman year of college at the University of California, Santa Barbara that Joe finally decided to attend law school. His grandmother had obtained a college and master’s degree and had always considered a law degree but was never able to do so. So, Joe decided to take on that next step for her and apply to the Santa Clara School of Law. After this story, Joe, acting as “Ron Swanson,” failed to provide any further information helpful to telling his story. So, we had to do a little investigative reporting. In doing so, we uncovered the following stories: Joe went on to attend the Santa Clara School of Law in the Fall of 1990. As it goes, your typical law student can be found studying the rule against perpetuities for real property class, drafting a legal argument for moot court, or reviewing citations for journal. Well, it wouldn’t be a stretch to say that Joe was not your “typical law student.” Instead, Joe could be found with his buddies practicing their swing at the local golf course. Do you know what time civil procedure was scheduled? Joe did. Tee time. Which do you think he went to? When Joe wasn’t practicing his short game, it is rumored that he actually studied for school, or at least RES IPSA LOQUITUR
finals. These rumors must hold some truth, because in the Spring 1993, Joe graduated from the Santa Clara School of Law. In 1994, Joe began a short but meaningful stint as Deputy County Counsel for the County of Kern. Here, Joe held the coveted position of Small Claims Advisor. Joe, for nearly half of the day, would sit at the Small Claims window and help local residents navigate through the winding maze that is the legal system. While his time with the county only lasted six months, he describes it as one of his best working experiences, highlighting the opportunity to help people with their everyday legal issues. Shortly after, in 1995, Joe began working at Kuhs, Parker & Stanton, where he immediately began trying the patience of Bill Kuhs, Jim Parker and Dave Stanton. We all owe those three a debt of gratitude for setting Joe straight countless times. Joe enjoys spending time with his family. Joe met his wife Sandy in college. Joe likes to joke that Sandy waited for him to graduate from college and law school, pass the Bar, and find a job before she would go out with him. Typical for Joe, he doesn’t notice that Sandy never laughs when he tells the story and instead simply nods her head. Joe enjoys hiking in the mountains with their daughter, Mallory, and Scouting trips with their son, Colby. Just this year, Joe and Sandy found a new hobby: whitewater rafting down the Kern River. The two really enjoy the excitement, and most of all, the teamwork needed to be successful traveling down the river. The Hughes family is always looking for the next adventure—although Sandy says it will never again be in a raft on the Kern River. Joe is excited to serve as President of the Kern County Bar Association. He looks forward to promoting KCBA and its commitment to our county’s legal community. Further, Joe is eager to welcome newly barred attorneys and help them learn and grow alongside our community’s legal leaders.
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MARCH/APRIL 2020
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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
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ATTORNEY SEARCH Associate attorney position with aggressive law firm handling primarily complex business, transactional and real estate matters, as well as employment, business and legal malpractice litigation which only accepts a select number of clients to ensure that they receive the highest level of service. Business and employment matters include such responsibilities as drafting contracts and transactional agreements, conducting harassment and other
employee investigations and training, as well as developing and preparing employee training and policy manuals. Excellent research tools are provided by the Firm. Salary is commensurate with experience and ability demonstrated after an introductory period. Please contact Thomas Anton & Associates. (661)327-7051; nisa@tantonlaw.com
EXECUTIVE OFFICE SPACE AVAILABLE Full service Class “A” downtown fully furnished or unfurnished large executive office with secretarial space available as well. Full time receptionist provided,
with three conference rooms, reserved parking and other services available for $650.00 per month. Please call 661-327-7051 for information and availability.
WATER LAW ASSOCIATE ATTORNEY Established law firm in Bakersfield is seeking an Associate Attorney with approximately 2-5 years of litigation and/or transactional experience to join one of Kern County’s largest Water and Special Districts departments. Water Law or Public Agency Law experience is preferable but not required; willing to train the right candidate. The position’s primary focus will be working with a team of several other attorneys specializing in water resource and related
matters, including matters that involve water rights, contract, property, public agency, and environmental law issues. Applicants must possess strong advocacy, writing, and verbal skills and have case management experience. Salary commensurate with experience and includes a generous benefits package. Qualified applicants should send their cover letter and resume to Allison Stokes at astokes@ youngwooldridge.com.
INSURANCE SOLUTIONS
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
PAROLE HEARING POSITIONS
ABOUT THE KERN COUNTY BAR ASSOCIATION EXECUTIVE COMMITTEE Joseph D. Hughes President Alekxia Torres-Stallings Vice President Xochitl Garcia Treasurer
Bernard C. Barmann, Jr. Secretary Douglas A. Gosling Past President DIRECTORS Anthony P. Azemika Carol Bracy Gina Cervantes Diana Christian Thomas Feher Stephanie Gutcher Paul Harman James Harvey T. Mark Smith Hunter Starr
ABOUT THE KERN COUNTY BAR ASSOCIATION CHARITABLE FOUNDATION EXECUTIVE COMMITTEE Barry L. Goldner President Patrick E. Jennison Vice President
THE BOARD OF PAROLE HEARINGS
Catherine E. Bennett Chief Financial Officer
The Board of Parole Hearings is seeking attorneys to represent inmates throughout the state of California in the parole suitability hearing process.
Susan M. Gill Secretary
Compensation up to $9750 for each week of assigned hearings; preparing and representing multiple inmate clients. For more information regarding the panel attorney appointment program, send an email to: BPH-AttorneyScheduling@cdcr.ca.gov
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THE BOARD OF PAROLE HEARINGS
htps://www.cdcr.ca.gov/BOPH
DIRECTORS Hon. Tom Clark John Stovall Seth O’Dell T. Mark Smith Joe Hughes Alekxia Torres Stallings MARCH/APRIL 2020
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SIX STEPS TO BE MORE EFFICIENT I T IS SAFE to assume that every attorney, no matter the size of the firm, aspires to become more efficient. Efficiency—broadly defined as the time it takes to complete a given task—can mean the difference between a troubled firm with a harried owner and a prospering one led by an attorney who can spend most of his or her time practicing law.
It’s important to remember that efficiency is not innate. It’s learned. As is the case with anything learned, improvement is possible. Here are six tips—ranging from simple to strategic—attorneys can try to boost their efficiency. TRACK ALL YOUR TIME, NOT JUST BILLABLE HOURS No attorney would say that he or she enjoys tracking billable time, but most would agree that it’s a necessary evil. To understand where you are squandering valuable hours (if not days), try tracking how you spend all your time, even if you only do it for a week. It is a simple exercise that will show you exactly where you are wasting time. EACH DAY, PRIORITIZE Once the phone starts ringing and your inbox starts percolating, it’s not hard to lose sight of what you set out to accomplish that day. Try this: As soon as you sit down at your desk, take a few minutes to jot down your top priorities. It will help you subconsciously keep these tasks front and center. UPGRADE TO THE EXPERTS Clients come to you because you understand the law and they don’t. How much time in a day or week do you spend on things you don’t really understand—and don’t care to? Marketing is the lifeblood of your firm, but many attorneys have little enthusiasm for it. Consider hiring outside help. It can be daunting to sign up for auxiliary services, but think of the precious hours you stand to regain. COMPARE NOTES If you have a trusted colleague, it can be enlightening to compare your days. (This is especially helpful if you have tracked all your time for a given week as recommended above). There are portions of the workday that can feel like sunk costs. However, you might only see them that way because you don’t see RES IPSA LOQUITUR
an alternative. Gaining a sense of how someone in a similar position allocates their time can be very eye-opening. SMOOTH OUT TWISTED PATHS Paying clients do not just walk in the door. It takes time and effort to get people to hire you. There is no shortcut here, but there are ways to trim the time and energy you spend on new business development and other multi-step processes. Whether it’s hiring an answering service or turning your digital marketing over to an expert, you can still reap rewards without expending your personal capital. EXPERIMENT WITH MONOTASKING Multitasking has become the norm, not the exception. However, some successful businesspeople insist they accomplish more by focusing on one task at a time. Different styles work for different people, but since we all just accept multitasking as the status quo, it might help to try something new. If it means getting more done in less time, it’s certainly worth a shot. Though quite different from one another, there is a common thread between these tips: honesty. Being honest with yourself on such issues is usually difficult, but it can yield strong dividends. A solid, matter-of-fact assessment of how you manage your time is a good first step toward efficiency. Reprinted with permission by Thompson Reuters. Original article located at: https://legal.thomsonreuters. com/en/insights/articles/6-steps-law-firm-efficiency
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MARCH/APRIL 2020
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FIRST 5 KERN: KEEPING CHILDREN SAFE
by Victoria Limbean, Marketing and Communications Coordinator, Greater Bakersfield Legal Assistance
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URING THEIR FEBRUARY 2020 meeting, First 5 Kern Commissioners approved 5-year continued funding for 37 programs that have a demonstrated hisory in benefitting the health and well-being of Kern County children, ages 0-5. Two of the programs selected for continued funding, the Domestic Violence Reduction Project and the Guardianshop Caregiver Project, are administered by Greater Bakersfield Legal Assistance, Inc. (GBLA). First 5 Kern’s Executive Director, Roland Maier, shared that “First 5 Kern has partnered with GBLA for over 10 years now, and I am honored to continue serving together to benefit otherwise underserved children and families here in Kern County.” A little bit about the programs: GBLA’s Domestic Violence Reduction Project (DVRP) provides a wide-range of legal services to ensure that each year at least 172 children, ages 0-5, are safe and no longer subjected to violence in the home. Violence in the home has significant negative emotional and physical impacts on children. Symptoms in children exposed to violence in the home are well documented and include enduring effects on cognitive development; poor coping skills; poor eating habits; high emotional and psychological distress; poor school performance; engagement in criminal behavior later in life; and much more. The DVRP co-locates at the Family Justice Center (FJC) where an array of specialized services focused on domestic violence are provided to children and their families by a network of highly competent partners in one safe, caring, and confidential environment. Victims of family violence obtain coordinated legal, social, and health services all under one roof. Due to the DVRP’s legal services and close coordination with FJC partners, children are kept emotionally and physically safe while further exposure to domestic violence is prevented. GBLA’s Guardianship Caregiver Project (GCP) provides legal services to grandparents and other caregivers seeking a legal guardianship to ensure that each year at least 200 children, ages 0-5, are safe and no longer subjected to substantiated child RES IPSA LOQUITUR
abuse and/or neglect. Reasons for grandparents and other caregivers stepping in include parental substance abuse, neglect, abuse, domestic violence, abandonment, parent(s) are incarcerated, physical and mental illness, teen pregnancy, AIDS, and death of parent. The majority of cases seen by the GCP involve domestic violence and drugs. Without a legal guardianship, grandparents and other caregivers are unable to do the day-to-day activities that parents take for granted such as enroll children in school and sign for medical treatment. The GCP serves as a resource for programs using the “Differential Response” (DR) approach. The DR approach involves a network of agencies working together to effectively respond to reports of child abuse and neglect. For example, instead of taking children out of their high-risk households and placing them into an already overburdened dependency system and foster care, agencies using the DR approach, such as CPS, refer caregivers to the GCP to obtain a legal guardianship. The legal process of obtaining a guardianship ensures children live with a caregiver who has the ability and disposition to provide a supportive, safe, and loving home. Toward the end of cases, both the DVRP and GCP administer a First 5 Kern approved evaluation that helps measure the impact GBLA legal services have made on children and their families. Result indicators such as child safety, child stability, peace of mind, knowledge of rights and obligations demonstrate that both Projects are helping to turn the curve. GBLA’s Executive Director, Estela Casas adds, “On behalf of the children, who have been subjected to abuse and neglect in their very young lives, we want to give a heartfelt thank you to First 5 Kern. We could not do this important work without First 5’s continued support and partnership.” If you are an attorney wishing to volunteer with one or more of the Projects (or thinking you might like to volunteer and would like more information), please contact Cynthia Bradshaw with GBLA’s Volunteer Attorney Program of Kern County at (661) 321-3996.
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IDP ADMINISTRATOR JOEL LUECK by David Wolf
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N FEBRUARY 3, 2020, attorney Joel Lueck began his duties as the new Administrator for the Kern County Indigent Defense Program (IDP). Mr. Lueck’s demeanor and experience make him well suited for this new role. He attended California State University, Bakersfield, were he received a Bachelor of Arts in History with a minor in Economics. He then attended Southern Illinois University, School of Law. Upon graduating, he worked briefly for Clifford & Brown before being hired by the Kern County Public Defender’s Office. He worked as a Deputy Public Defender for ten years. Deputy Public Defender Jano Mattaeo had this to say about Mr. Lueck: I have known Mr. Lueck for over 10 years. Mr. Lueck is not only a colleague, but a friend. Mr. Lueck has always been a man of integrity, professionalism and commitment. He is committed to his clients and his work. He is a zealous advocate and professional inside and outside of court. He is personable, witty and reliable. Joel has extensive experience in the criminal law and will be a great asset to the indigent defense panel. Mr. Lueck then decided to strike out on his own and he opened the Law Office of Joel E. Lueck. As a solo practitioner, Mr. Lueck handled all stages of criminal procedure including pre-trial, preliminary hearings, motions, trials, sentencing and revocations. In 2017, Mr. Lueck started handling prison cases from the Delano Prison Court. Prison Court handles new crimes committed by inmates serving time on a prior conviction. Prison Court initially only handled cases from North Kern State Prison and Kern Valley State Prison. By the time, Mr. Lueck accepted the Administrator’s position both he and the Prison Court where also handling cases from California City, CCI Tehachapi and Wasco State Prison. Many of Mr. Lueck’s clients also participated in the Video Appearance Program which allows inmates to make their court appearances in the Delano Prison Court by video. Not only is Mr. Lueck up for the challenge for this exciting new adventure in his career, he is clearly up to adventures with his family which include: two mission trips to Uganda, off-road motorcycling, tracking mountain gorillas, walking the Great Wall of China, swimming in thermal spas in Ecuador (13000 plus feet above sea level) and helicoptering over the Iguazu Falls on the RES IPSA LOQUITUR
Brazilian/Argentina border. He also loves “football.” Of course, he means “soccer.” He’s excited to have attended two home matches for the Everton Football Club, a professional soccer team in Liverpool, England. He dragged his loving wife, of 24 years, to one of their home games for his 40th birthday. He has also attended soccer matches in Spain, Italy, Sweden and Greece. Clearly, Shannon (his wife) is a saint. Of course, despite his amazing career and adventures, what he appears to enjoy most is his family. Nothing brings a smile to his face or puts that twinkle in his eye like talking about his wife and two sons. I’ve ready mentioned his wonderful wife Shannon. They have two boys. His eldest is heading off to the United State Army Reserves and will be starting college in 2021. His youngest is currently a freshman in high school and already plays varsity football team. (Sorry, I mean soccer team.) Brandon Stallings, a Deputy District Attorney and Trustee for the State Bar of California, recalled his earliest memories of Joel: As a young DDA, I was trying to figure out how to put on preliminary hearings and frequently opposed Mr. Lueck when he was a Deputy Public Defender. I remember that he always got to the heart of the issue with the case, and always zealously represented his clients, without losing sight of his ethical responsibilities as an officer of the court. Mr. Lueck brings exceptional people skills and the highest ethical standards to his new position. Kern County and the Kern County Bar Association is lucky to have a representative of Mr. Lueck’s caliber, and I wish him the best! Presiding Judge Judith Dulcich noted that The Superior Court looks forward to working with Mr. Leuck in his new role as Administrator of IDP. When asked about his new role as the Administrator for IDP, Mr. Lueck said, “I’m excited for a new challenge in my career and this position will definitely force me to exercise a different skillset than I’ve become accustomed to using for the past 18 years as a criminal defense attorney.” The IDP Administrator position is an extremely challenging one and I have no doubt that Mr. Lueck is up to the challenge.
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GETTING THE MOST OUT OF MEDIATION by Bernard C. Barmann, Jr.
PART 3 - CHOOSE THE RIGHT MEDIATOR
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HIS IS THE third installment in a series of articles in which I provide some tips for getting the most out to mediation. In this series, I will cover the following three topics: • Topic 1—Positioning a case for mediation • Topic 2—Using the mediator effectively. • Topic 3—Negotiating effectively. This article is part 3 of Topic 1. In this article, I discuss mediator selection—choosing the right mediator for your particular dispute. KNOWLEDGE OF MEDIATION A qualified mediator will have undergone formal training in the process of mediation, which is both a bit of an art and a science. Trained mediators will have undertaken tens if not hundreds of hours of instruction and practice to learn how and why the mediation process works and a variety of approaches for working with the parties to a dispute to help them achieve a resolution. Subject matter expertise, while helpful, is generally insufficient without formal training in mediation. Indeed, an untrained mediator may actually do more harm than good, including driving the parties farther apart or causing one or both parties to become more entrenched in their adversarial position. STYLE There are generally two kinds of mediators: facilitators and evaluators. Facilitators promote communication between the parties in order to help them reach a mutually acceptable resolution. The pure facilitator refrains from expressing any opinion on the merits of the case. Evaluators will express an opinion on what a case is worth or at least on the merits of positions. The best mediators will use an approach that draws upon both styles as the needs of the case require. RES IPSA LOQUITUR
FAMILIARITY WITH PARTIES OR COUNSEL There is sometimes a misconception that the mediator should not have had any prior relationship with the parties or their counsel. Although the proposed mediator should disclose any such relationships, no ethical rule precludes the use of a mediator who knows or has dealt with one or more of the participants. Many litigators believe that the best mediator to use is the one that the other side knows and wants since the mediation is more likely to succeed if the adversary trusts the mediator.
FOCUS ON SETTLEMENT Being an effective mediator often requires an extraordinary amount of patience, and many cases will not settle at the first meeting. The mediator must be prepared to follow up and to work with the parties until the case is resolved. SUBJECT MATTER EXPERTISE Lawyers are generally looking for a mediator who has expertise in the type of case at hand. The lack of such expertise will create a steeper learning curve for the mediator and may put him or her at a disadvantage when trying to evaluate positions. Keep in mind, however, that subject matter expertise without adequate process skills will not make a person suitable to be a mediator. FEES What a mediator charges should not be the primary factor used when choosing a mediator, but it is something to consider. There are many excellent mediators whose fees are reasonable. FORMER JUDGE OR NOT Retired judges often are excellent mediators and there are excellent mediators that are not retired
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judges. While a retired judge carries a credential that indicates experience and authority when it comes to disputes, a retired judge’s experience on the bench alone is not necessarily sufficient to produce a good mediator. A judge’s primary role is to make decisions for the parties—to make rulings and tell the parties how their dispute is being resolved. Many judges also conduct settlement conferences, which can be much like a mediation. As with any mediator, whether a retired judge will be a good mediator for your case depends on their training, experience, temperament, and subject matter expertise.
About the author: Bernie Barmann, Jr. is a trained mediator who conducts mediations online as well as in person. He has helped litigants resolve matters they didn’t think could be settled and helped people resolve disputes before they’ve ripened into litigation. He brings to bear nearly 30 years of broad litigation experience as a business trial attorney effectively representing companies and individuals in a wide variety of civil disputes in state and federal courts throughout California and in other jurisdictions. He is also Secretary of the KCBA and formerly taught Civil Procedure at the Kern County College of Law. For more information visit bbarmann.com or kuhsparkerlaw.com
SAFEGUARDING YOUR PRACTICE AGAINST WIRE FRAUD
Our strength is your insurance
Have you received a request for a wire transfer? Before moving forward with disbursement of any funds entrusted to you, consider the following:
Wire fraud generally involves an attempt to defraud your firm, your client and could damage your reputation; therefore consider implementing the following:
Red flags:
Preventative measures:
• Receiving an urgent email to disburse funds. • Communication that does not match original wire instructions. • Slight variations on an email address of the sender. • Communication request via email only (without verbal instructions). • Messages from the sender using incorrect spelling or odd phrases. • Incoming phone call requests from an unfamiliar contact number. • Request for an urgent wire transfer after receiving an unexpected check from your client.
• Ensure well-defined protocols are in place for all wire transfers. • Initiate verbal authorization no matter the urgency of the request. • Institute electronic security and authentication controls. • Educate employees on the risks associated with phishing schemes. • Refer back to your clients’ primary cotact information. • Regularly update spam filters and firewalls. • Before initiating any wire transfer, always call your client.
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DEALING WITH SOCIAL ISOLATION F by Brian Cuban
EELINGS OF SOCIAL isolation are an issue common to law students and lawyers, not to mention people in active addiction. Social isolation can also be a trigger to problematic alcohol and drug use. As a law student struggling with addiction, I felt that the only way I could exist was to drink alone and isolate myself from other law students so they could not see my pain and loneliness, not to mention my belief that I was not good enough to be in their presence. As a lawyer deep in addiction, rather than seeking out and engaging in healthy work and social relationships, I narrowed my interactions down to those also drinking excessively and doing cocaine. In a room full of drinkers and snorters, I felt totally alone and isolated. This is not to say that the desire to be alone is in itself a bad thing. In recovery, I narrowed my social connections down to a very small circle of healthy connections and came to embrace myself as someone who is inherently shy. They were very different types of connections. They were sober connections who were part of a sober world that I had forgotten existed. Here is how a current law student and practicing lawyer have experienced and dealt with social isolation in their lives. Garret is a second-year law student at the University of New Mexico. Garret is unique in that RES IPSA LOQUITUR
he also played collegiate football while going to law school. Wow! Garret says:
Playing football amplified the isolation I have felt during law school. On the one hand, I would miss out on opportunities to interact with my teammates because I was studying for school. On the other hand, I would miss opportunities to bond with my classmates because I was travelling every weekend for football. These circumstances made for many lonely nights spent reading countless pages trying to stay caught up. During this time, I did not feel that anyone could understand what I was going through.
How did Garret cope? He says: I allowed myself to ask for help. Instead of drowning alone, I reached out to others and found that they were more than willing to help. UNM’s career services department helped me form a strategy to stay caught up in school. My classmates also offered comfort and support when I finally opened up about the struggles I was facing. Once I allowed myself to seek help, there was no shortage of love from those around me. I firmly believe that I would not still be in school without the support of my peers and the faculty and staff at UNM during this time in my life. Miriam is a practicing criminal defense attorney in the Washington, D.C. area. She says:
When I went out on my own, it was pretty jarring. There was no one to ask a question of, no one to just vent frustrations to. And criminal defense is an incredibly frustrating area of law. There was no reason to take a break, because who was I going to socialize with? Myself?
Miriam then joined a listserv called SoloSez (part of the American Bar Association), and it turned out she wasn’t alone: There were lots of us solo practitioners struggling with the same thing. Who do you talk to when you are literally all by yourself all day long. As to how isolation impacted her personally and professionally, Miriam says: I realized the value of human interaction in professional settings and how important it is as a stress relief. Water cooler talk may be lame but it is important. I ended up renting an office inside a larger firm. Lots of solos in that office space and we became friends. My productivity increased and I was just generally happier. Today Miriam has a small law office with employees, and they all have an open door policy. She says: We eat lunch together, we talk about our cases on a regular basis, and we are able to talk to each other freely. What’s the point of working with people
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if you can’t talk to them? I recommend renting an office in a suite—having someone else there to vent to is incredibly important. And while you may say oh I can talk to my wife when I get home, etc., it really isn’t the same. Being at work and bitching, then being able to go home and not feel so frustrated, is a great thing! I also reached out to a treatment provider who deals with social isolation issues in his practice. Dr. David Henderson is a psychiatrist practicing in Dallas, Texas.* One of the issues I asked him to address is the difference between damaging social isolation and the simple desire to be alone. He says: There are two states of aloneness: the physical state of being alone (solitude) and the emotional state of being alone (loneliness). Solitude is not always painful. In fact, it may
be quite pleasant for those who are confident and comfortable with themselves, and who understand that it need not be a permanent experience. A stable balance between solitude and time with others is necessary for mental and physical well-being. Even when we are forced to be alone, knowing that someone is with us in spirit helps. Conversely loneliness, the emotional state of being alone, is the belief that no one else understands our circumstances, our thoughts, or our emotions, nor do they care. Social isolation is the combination of these two states, experienced by an individual for an extended period. The length of time in social isolation for any individual can vary, but both the emotional state and physical state feed off of one another, creating a perpetual
inability within the individual to reengage society in a meaningful way. Here are Dr. Henderson’s tips for dealing with social isolation: 1. Plan ahead. Isolation and loneliness can result from procrastination. When an individual fails to anticipate future isolation and plan for it, it never gets better. Individuals must carve out time in their schedules for social engagement like they would carve out time to study or complete a task for work. Waiting until the last minute always ends with missed opportunities. 2. Confront the mind-games you play. We all have a script that plays over and over in our heads that dictates our actions. The most successful individuals are the ones who recognize the script and make the hard decisions to act contrary to
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it. The key to overcoming social isolation is being able to acknowledge the very real pain that exists in engaging others and then working to develop the confidence within oneself to know that you have the power to endure and overcome it. 3. Seek out accountability. For many, this accountability starts with one person: a trained professional counselor. A professional can challenge you to think outside the box, provide you with resources that will help you overcome the struggle, and check in with you to measure your progress. Overcoming social isolation is like any other challenge. In order to break the cycle, we must reach a point at which the pain of staying the same is worse than the pain of changing. If you are struggling to reach out and find help, simply ask yourself one question, “What do I have to lose in reaching out for help?” Make a decision today that you
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are going reengage one step at a time. Fight discouragement with true statements about your abilities, and recognize that with each decision to think and act contrary to what you feel, you are getting stronger and closer to your goals. You are not alone. Keep reaching! What’s the common thread here to either becoming or staying connected in a healthy way? Reaching out! Regardless of the genesis of your feelings of loneliness and isolation. It all starts there. Below are some resources to stay connected. LAWYER’S DEPRESSION PROJECT www.lawyersdepressionproject.org IN THE ROOMS www.intherooms.com David L. Henderson, M.D., is a board-certified psychiatrist, author, and professional speaker. He is the owner and president of Four Stones Collaborative Group, a
mental health practice in Dallas, Texas, treating a wide range of psychological issues including depression, anxiety, substance abuse, and trauma. He is the author of the book My Teenage Zombie: Resurrecting the Undead Adolescent In Your Home. For more information about his practice or for further resources, you can visit his websites at www. drdavidhenderson.com and www. fourstonesgroup.com Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his resume as a practicing attorney. He went into recovery April 8, 2007.
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LOW INTEREST RATES DON’T MAKE STRUCTURED SETTLEMENTS A BAD DEAL by H. Dennis Beaver, Attorney at Law
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ES, INSTEAD YOU might be able to get a better rate of return elsewhere, but for personal injury settlements, the guaranteed tax-free income of a structured settlement is well worth anything you may be giving up. “Three of my former employees were in a serious auto accident while on a fishing trip, which will result in large settlements for their future care and lost income. “Physically they are no longer able to perform their jobs and will have trouble finding the same level of income going forward. They have little investing knowledge or adequate experience to manage their financial future. “There is a family fight going on right now over what to do with their settlements, which will be several hundred thousand dollars each after legal fees. Their adult children want the proceeds put into stocks and bonds at a large brokerage firm. Others in the family are suggesting CDs and municipal bonds to ensure safety. Their lawyers are strongly suggesting structured settlement annuities.
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“Given today’s low interest rates, what is your recommendation? Thanks, Theo from Chicago.” Financial planning after an accident: What you need to know. FINANCIAL PLANNING AFTER AN ACCIDENT—WHAT YOU NEED TO KNOW Theo is smart to raise this question before these settlements are final as financial planning for an accident victim is usually far more complicated than for a typical person. Also federal rules offer significant tax benefits to injury victims but only if certain steps are taken before the final settlement. I ran Theo’s question by Peter Arnold, who has been in the structured settlement field for more than 20 years and was formerly deputy director of the National Structured Settlements Trade Association: “The federal tax code gives two important benefits to accident survivors who agree to have some or all of their settlement placed into a structured
settlement annuity,” Arnold explains. “First, 100% of that income is tax free. You won’t pay any federal, state or local income taxes, no interest or dividend taxes, and no alternative minimum tax.” “Second, you get guaranteed payments to match future needs—things like wheelchair replacement, therapy or future surgery. That relieves accident survivors from the stress of making appropriate
investments with settlement funds.” THE MECHANICS OF A STRUCTURED SETTLEMENT A structured settlement lets injury victims put funds from their settlement into an insurance annuity issued by a highly rated life insurer. That annuity, which tax rules require to be funded prior to the final settlement, then pays out a secure stream for years or even a lifetime. This option is ideal for: • Persons with temporary or permanent disabilities; • Guardianships for minors or persons found to be unable to manage their money; • Workers’ compensation; • Wrongful death where the surviving spouse and/or children need monthly income; • Severe injuries, especially with long-term needs for medical care, living expenses and replacement income to support the family. FLEXIBILITY AND SAFETY If I woke up tomorrow morning, turned on the radio and heard that structured settlements were required in all major personal injury cases that would make me and most other attorneys very happy campers for two reasons: flexibility and safety. With a structured settlement, injury victims’ present and future needs can be matched with settlement payments. The annuity can be set up to provide money for medical care and, with a child, funds to pay for college or help with housing expenses years down the road. Cost of living adjustments can also be factored in. Payments can be scheduled almost any way imaginable. Depending on the settlement size, you can even set them up to guarantee payments for a spouse, similar to a “second to die” insurance policy.
2020 SECTION LEADERSHIP
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CRIMINAL DEFENSE SECTION Elliott Magnus, President Mai Shawwa, Vice President Timothy Hennessy, Treasurer Emily de Leon, Secretary Trustees: Jared Thompson, Elizabet Rodriguez, Monica Bermudez, Bo Koenig, Antonio Hutchison ESTATE PLANNING AND PROBATE Kurt Van Sciver, President Stevie Jo McDonald, Secretary/Treasurer WOMEN LAWYERS SECTION Stephanie Gutcher, President Tara Deal, Vice President Mayra Estrada, Treasurer Julia Vlahos, Secretary Directors: Leanne Wilder, Stephanie Bouey, Alisyn Palla, Vanessa Sanchez, Hon. Sharon Mettler, Ret. YOUNG LAWYERS SECTION Lyndsi Andreas, Chair Victoria Harp, Secretary Angelo Villreal, Treasurer Tonya Anderson, Treasurer Elect James Bass, Director 1 Hunter Starr, Past Chair IN-HOUSE COUNSEL Nicholas Ashley, President Melissa Frank, Vice President Michael Abril, Treasurer Alyssa Reed, Secretary FAMILY LAW SECTION Diana Christian, President Jeffrey Travis, Vice President Edward Thomas, Treasurer Anthony Azemika, Secretary Keith Cramer, DCSS Representative Board Members: Nicholas P. Azemika, Stephanie Childers, Jeremy Swanson, Fred McAtee, Gerald Oldfield MULTI-CULTURAL BAR ALLIANCE Kate Iwanami and Cynthia Loo, Co-Chairs Carol Bracy and Michael Cavas, Co-Vice Chairs Monique Galvan, Secretary Esther Schlareth, Treasurer Maria Contreras, Student Representative
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WHAT’S MORE IMPORTANT— SAFETY OR A HIGHER INTEREST RATE? “I get it,” you’re thinking. “My case settles and funds go into an insurance annuity, which are paid out to me over the years. But interest rates today are next to nothing, and I assume that applies to insurance contracts as well. So, when you consider inflation, in reality the funds held in that insurance contract may lose purchasing power over the longrun. Am I right?” That’s correct, but, from my perspective—and that of the many lawyers I’ve discussed these issues with—the lowered amount of interest earned is not nearly as important as the safety and other benefits that a structured settlement offers. Arnold observes, “As structured payments are locked in and guaranteed, the ups and downs of the stock market won’t affect your payments. Those insurance checks will keep coming in, which means the beneficiary won’t wind up like lottery winners who spend all their money in a couple of years.” John Darer, a respected structured settlement consultant in Connecticut who writes the industry’s “Watchdog” blog, has chronicled examples of people who took large sums of money after an accident settlement only to see it all disappear because of family and friends with their hands out for loans that were never repaid. Darer’s blog is an important source of information and documents how, with a structured settlement, accident survivors may not accelerate, defer, increase or decrease the payment stream they agree to. This keeps greedy hands away from the money. “All of this is why the main selling point of a structured settlement RES IPSA LOQUITUR
isn’t the financial return. Rather, it’s the security offered the accident victim and tax-free income,” Arnold underscores. AND IF THE ECONOMY—AND THE INSURANCE COMPANY—GOES INTO A TAILSPIN? “Any company can go bankrupt,” you might be thinking, “so what happens if the life company that issues the annuity goes bust? What about the people who have their structured settlements with a company that fails? Would they lose everything?”
Bottom line, over my many years in law practice, I’ve seen structured settlements bring piece of mind to our clients and loved ones needing a secure financial future for them, and, yes, sometimes it takes a bit of persuasion as money is seductive. 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.
The good news is that each state has an insurance guarantee association that steps in to cover payments from an insolvent insurer, up to certain limits. But for reasons that to me make no sense at all, Arnold points out that “structured settlement brokers are generally prohibited from using this guarantee association backstop for marketing purposes. In fact, they can’t even tell you that it exists. But your attorney or accountant can advise where to find more information.”
Board of Parole Hearings State of California Administrative Law Judge I Positions Available Statewide Monthly Salary Range: $8,984.00-$11,300.00 Benefits: Health Insurance (health, dental, vision) and retirement plan Regional Office Locations: Sacramento, Fresno, Wasco and Chino Job Description & Duties: An Administrative Law Judge I presides over Suitability and Mentally Disordered Offender hearings at prisons statewide, writes decisions on Nonviolent Offender Parole, Administrative Reviews, Petitions to Advance and Parole Discharge. MQs: 1) Active member in good standing with California State Bar; 2) five years of experience practicing law; 3) two years of experience in judicial capacity (defined as judge pro tem, mediator, arbitrator, hearing officer conducting interrogatories, depositions and other inquiries). Some criminal experience is helpful, but not required. Apply at: CalCareers https://calcareers.ca.gov. Create an account and complete the test titled “Administrative Law Judge I, Board of Parole Hearings.” Mail Examination Application and Qualification Assessment as indicated in the job posting.
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INTERVIEW WITH
BERNARD C. BARMANN, JR. WHAT DREW YOU TO LAW AS A PROFESSION? BARMANN: My father was a lawyer and I was curious about what he did. The intellectual challenge of the law intrigued me, so in high school I joined the debate team and found I really loved the activity. Debate involves a lot of the elements of the legal profession—research, logic, persuasion, thinking on your feet and the possibility of winning (and losing). I wanted to continue in that vein as an adult, so I went to law school. HOW DID YOU COME TO SELECT YOUR LEGAL SPECIALTY? BARMANN: When I went off to law school I assumed I’d come back to Bakersfield and work in the DA’s office as a prosecutor. Soon after starting law school, however, I learned of the world folks now call “Big Law,” and applied to those firms for work during the summers. Being a summer associate with major Los Angeles law firms was both challenging and fun. I discovered through those two summers that I much preferred the litigation side of the practice to the transactional side, so I joined the litigation department at O’Melveny & Myers in Los Angeles after graduating from law school. There were about 90 lawyers in that department just in the LA office. It was an amazing environment in which to learn and practice law with a group of stellar attorneys. IF YOU DIDN’T BECOME A LAWYER, WHAT WOULD YOU HAVE DONE PROFESSIONALLY? BARMANN: I would have become an electrical engineer. Math was always my strongest subject in school, and I was very interested in computers and how they function. WHAT IS THE MOST REWARDING PART OF YOUR CAREER? BARMANN: The most rewarding part of my career is when a client tells me that they are happy with the results we have achieved for them. When a client appreciates and values the work you do for them, that makes the long hours and the mental toll of this profession worth the effort. WHAT IS ONE THING YOU DEAL WITH REGULARLY IN LAW WHERE YOU HAVE TO TAKE A DEEP BREATH AND STEEL YOURSELF TO START WORKING? BARMANN: Drafting interrogatory responses. They seem like such a waste of time. The other side usually already knows the answers to their own questions, and people rarely disclose anything of any real value in an interrogatory response. Interrogatories in general have only limited value, not zero, but not much. WHY ARE YOU A MEMBER OF THE KERN COUNTY BAR ASSOCIATION? BARMANN: I joined KCBA so that I could connect with other lawyers in the community and to participate in giving back to the community. KCBA does a lot to benefit Bakersfield and Kern County as well as to promote the interests of its members. FINISH THE SENTENCE “IN MY FREE TIME, YOU’LL FIND ME...” BARMANN: Playing drums for La Revancha, on my road bike, watching college football, or with my family. MARCH/APRIL 2020
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HIGH PERFORMERS BUT LOW PASS RATE by Mitchel L. Winick, President and Dean, Monterey College of Law
Great news! California bar examinees were once again among the highest performers in the nation on the July 2019 bar exam. According to last month’s released results, California examinees scored 17 points higher on the Multistate Bar Examination than the national mean (1428 v. 1411 scaled points). In MBE terms, this is a very significant difference and also predicts that these examinees performed better on their statetopic essays and performance tests because these scores commonly correlate. These exam results unquestionably reflect the high quality of legal education and preparation of California bar examinees. But something is seriously wrong! Only 50.1% of these high performing examinees passed the California bar exam. Meanwhile, lower scoring examinees passed at a 20% higher pass rate in many other major jurisdictions. This dramatic difference results from California using an artificially high minimum passing score (“cut score”) when compared with every other major jurisdiction. To put this in context, California’s cut score of 1440 is significantly higher than the national mean of 1350. Furthermore, every other U.S. jurisdiction except Delaware has adopted cut scores between 1290 and 1390. The five most comparable large jurisdictions, including New York, use passing scores of 1330 to 1360. Only California sits as an outlier using 1440. RES IPSA LOQUITUR
Why the difference in scores? Each jurisdiction has the authority to set a passing score that is intended to define “the minimum competency for the first-year practice of law” in their state. A common argument heard in California is that its high cut score ensures higher quality lawyers. However, the problem with this argument is that there is no evidence that bar exam scores have any relationship to lawyering skills. Furthermore, no evidence exists that states with lower cut scores have less competent lawyers or have higher incidents of malpractice or ethical violations. In fact, despite its artificially high cut score, California has one of the highest incident rates of lawyer discipline in the country. Therefore, the only measurable result of using an artificially high cut score in California is the conversion of some of the highest performing scores in the nation into the lowest passing rate.
standardized licensing exam with an artificially high passing score effectively and fairly measures minimum competence across all categories of examinees.
How did this come to pass? The best evidence suggests that a passing score comparable to 1440 was established sometime between 1950 and 1955 by bar leaders of that era. Keep in mind that law students and bar examinees of the 1950’s were almost exclusively white males. In fact, Harvard law school did not admit women until 1950. However, since that time, the demographics of law students and bar examinees have changed significantly. In 2016, the majority of students enrolled in ABA law schools were women and in 2018 the majority of examinees sitting for the July California bar exam were nonwhite. This raises the question of whether the continued use of a
Why does all of this this matter? Fairness, inclusion, diversity, protection of the public, and access to justice should be important to all of us. From 2011 through the most recent July 2019 bar exam, an estimated 8,000 competent law school graduates who scored above the national mean standard of 1350—approximately 1,000 per year—were denied licensure in California. These law school graduates earned the grades in law school and on the bar exam that reflect a level of competency that qualifies them for licensure in 48 other jurisdictions.
State Bar statistics from the July 2018 bar exam indicate that if the national standard of 1350 had been applied in California, the passing rate of white examinees would have increased by approximately 43%. However, the passing rate of blacks would have increased by 125%, Hispanics by 68%, and Asians by 64%. This significant statistical differential by race/ethnicity for a mandatory state-sponsored licensing exam raises serious questions about the validity and fairness of the exam scoring. If diversity of the bench and bar is a priority, as it should be, we should all be questioning why California is using a scoring system that disproportionately bars competent minority candidates from the profession.
These are potential California lawyers who are unavailable
to address the growing justice gap in California, to serve our communities in public defender and district attorney offices, or to contribute to the growing California economy in public and private law practices. These are intelligent young professionals who have risked hundreds of thousands of dollars in student loan debt, dedicated thousands of hours to the study of law, and forgone years of family and personal opportunities in order to become lawyers and serve our communities. These are potential lawyers who lost job and career opportunities despite being among the best and brightest bar examinees in the country. So, what can be done? The California Supreme Court has the sole authority to adjust the cut score. Recently, four Supreme Court Justices met with law school deans representing the three categories of California law schools—ABA approved, California Accredited, and
California Registered. As part of this informal dialog, the Court welcomed additional conversation and information-sharing related to establishing a cut score that meets California’s future professional needs. We should support the Court as it considers the future of the bar exam. This is the opportunity for each of us to encourage these conversations among our legal colleagues. Otherwise, we risk a future where many of our best and brightest lawyers, perhaps our own children, will go elsewhere to study and practice law – to find a place where the standards of entry into the profession are fairer and more equitable. We risk having a profession that does not reflect the rich diversity of our state or address the broadening justice gap in our communities. Know that these are not hypothetical risks... recent reports indicate that these trends are already beginning. California bar examinees are among the highest performers in
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the nation. A change is necessary to welcome more of these future lawyers into our profession.
Mitchel L. Winick is President and Dean of a non-profit, California accredited, law school system that includes Monterey College of Law, San Luis Obispo College of Law, and Kern County College of Law. He is the former chair of the State Bar Law School Council and a former member of the Committee of Bar Examiners Rules Advisory Committee. This article was reprinted with permission from the Contra Costa County Bar Association (CCCBA). It was originally published in the February 2020 Contra Costa Lawyer magazine, a publication of the CCCBA. You can view the original online here: https://www.cccba.org/article/ highest-performers-but-lowestpass-rate-there-is-somethingseriously-wrong-in-california/
MARCH/APRIL 2020
