Res Ipsa Loquitur - November/December 2021

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FIRST GEN LAW SCHOOL MENTORSHIP p. 6

CONTINUING THE DISCUSSION ON CIVILITY p. 12

ANTHONY KLEIN IN MEMORIAM p. 22

RES IPSA LOQUITUR NOVEMBER/DEcember 2021

PUBLISHED BY THE KERN COUNTY BAR ASSOCIATION

Bench and Bar Social Takes Over Torres Home


ABOUT THE RES IPSA LOQUITUR CONTENT/ADVERTISING Rebecca Beagle rbeagle@kernbar.org DESIGN 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. To advertise, email rbeagle@kernbar.org. 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 rbeagle@kernbar.org.

MEMBERSHIP RENEWAL 2022

Renew Today to Continue On behalf of the Kern County Bar Association, we would like to express our deepest gratitude for your continued membership and support in 2021. Please join us for another year of knowledge, information and networking! Visit KERNBAR.ORG/MEMBERSHIP/REGISTRATION to renew today! Don’t miss a moment.

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

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


CONTENTS FEATURES

COLUMNISTS

4 - Hispanic Heritage Judicial Reception Carol Bracy 6 - First-Generation Law School Mentorship Jeanine E. Kraybill, PhD 10 - Explorers Visit Delano Court Gene Garaygordobil 12 - Unify Over Problems Instead of Belaboring Brandon Stallings

16 - Joe Regalia Legal Writing Principle #4 18 - H. Dennis Beaver When Chiros and Lawyers Must Say “NO” 20 - C.M. “Bud” Starr advocatus caecus ON THE COVER 2021 Bench and Bar Social [photo by Heather Rayhill]

PEOPLE AND FIRMS 8 - New Superior Court Judge Elizabet Rodriguez Hon. Susan M. Gill 22 - Anthony J. Klein: An Icon in Kern Law Catherine E. Bennett 25 - Bench and Bar Award Dinner Photos 26 - Bench and Bar Social Photos

ABOUT THE KERN COUNTY BAR ASSOCIATION

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2021 EXECUTIVE COMMITTEE Alekxia Torres-Stallings President Xochitl Garcia Vice President T. Mark Smith Treasurer Thomas Feher Secretary Joseph Hughes Past President 2021 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 2021 EXECUTIVE COMMITTEE Barry L. Goldner President

STUDENT/SPECIAL EDUCATION & BUSINESS ATTORNEYS Senior Associate Counsel: 5+ Years of Experience

Located in Bakersfield, Schools Legal Service provides services to more than 70 California public education agencies. We are currently primarily seeking attorneys specializing in student/special education matters as well as business and construction matters (see details at link below). Great collegial relationships, a challenging legal environment, and wonderful clients. Competitive salary/benefits. Apply at www.edjoin.org

Patrick E. Jennison Vice President Catherine E. Bennett Chief Financial Officer Susan M. Gill Secretary

2021 DIRECTORS Hon. Tom Clark John Stovall Seth O’Dell Lyndsi Andreas T. Mark Smith Hunter Starr

NOVEMBER/DECEMBER 2021


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HISPANIC HERITAGE JUDICIAL RECEPTION by Carol Bracy

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n September 29, a group of about 125 judges, lawyers, and friends gathered together in the Garden at Mill Creek to spend a relaxed evening celebrating Hispanic Heritage month at a judicial reception put on by the MultiCultural Bar Alliance (MCBA) of Kern County. The night honored jurists of Hispanic Heritage, included Judge Wendy Avila, Judge Jose Benavides, Judge Marcos Camacho, Judge Elizabet Rodriguez, Judge Robert Tafoya (ret.) and Judge Louie Vega (ret.). Judge Robert Baca, now deceased, was recognized as the first judge of Hispanic ancestry to serve as a judge in Kern County. Special welcomes RES IPSA LOQUITUR

were given to new judges to the bench in Kern County: Judge Bernard Barmann, Judge Jason Webster, and Lisa M. Pacione. A short program highlighted the accomplishments of the 6 Hispanic honorees. A few fun or amusing highlights were given, but the main energy of the MCBA Board went into writing the biographies of the judges so that more of the in-person time could be used listening to the mariachi band, toasting old friends, meeting new ones and eating tacos and drinking agua frescas, and developing what sponsor H.A. Sala pronounced as the “camaraderie” of old. In fact, all of the Platinum donors for

the event: The Law Offices of Torres/ Torres Stallings, H.A Sala, Bigger and Harman, Rodriguez and Associates, and Commissioner Cynthia Loo, commented enthusiastically about the event. Having a beautiful outdoor space with a lot of room, masks and hand sanitizer readily available, most attendees practicing social distancing and beautiful weather elevated the mood of the gathering to an the level of pre pandemic social activities. Special thanks go out to the MCBA Board of Directors Monique CastruitaGalvan, Fatima Rodriguez, Michael Caves, Navraj Rai and Pedro Naveiras, and of course, to our amazing and selfless Judicial Advisor, Commissioner Cynthia Loo.


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NOVEMBER/DECEMBER 2021


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FIRST-GENERATION LAW SCHOOL MENTORSHIP by Jeanine E. Kraybill, PhD

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Hon. David Wolf

irst generation law school students are more likely to attend regional programs and lack regular access to professional mentorship. To assist our firstgeneration students in gaining invaluable access to practicing attorneys, Kern County College of Law (an affiliate of the Monterey College of Law system) has started a mentorship program this fall semester. We are excited to share that across our three campuses (located in Kern, Monterey, and San Luis Obispo counties) we have paired twenty-five students with mentoring attorneys, nine of whom attend KCCL. Though targeted to firstgeneration students, this program is open to any interested student. The goal of this initiative is to help students gain exposure to practicing attorneys and judicial officers, as well as access to professional mentorship and advice to prepare them for their future legal careers!

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Dr. Jeanine E. Kraybill Mariah Martin, a third-year law student at Kern County College shared, “this program offers students a unique experiential learning opportunity with seasoned

Mariah Martin professionals in the legal field. I was fortunate to be matched with Judge David Wolf of the Kern County Superior Court to serve as my mentor. Judge Wolf invited me to his

661.325.5075 Telecopier 661.325.3045 Hayden Building 1626 19th Street, Suite 23 Post Office Box 2411 Bakersfield, CA 93303

ANNOUNCEMENT

As of October 15, 2021, Diane M. Dodds will be joining the firm of Darling & Wilson PC as Of Counsel. Contact information for Ms. Dodds is as follows: Phone: (661) 325-5075, Extension 122 Email: ddodds@dwlawfirm.com Mailing: P.O. Box 2411 Bakersfield, CA 93303


The First Generation Law Student Program has allowed me to expand my network and knowledge of what it means to be an attorney. This program aids in connecting with local attorneys who can help show us how the legal system works and offer advice on how to succeed in law school and on the bar exam. I am truly grateful to everyone who participated in putting the program together. More importantly, I hope that this program continues being a success so that I can one day help students as well.”

Joe Alindajao

Ricardo Escobar

courtroom where I was able to observe him. He encouraged me to network with the practicing attorneys between proceedings and ask questions. Post-observation, him and his wife (also an attorney) took me to lunch and shared stories about their careers and gave me advice about the legal profession. I am extremely grateful for this opportunity and would encourage attorneys and students alike to participate!”

Ricardo Escobar, a second year law student at KCCL, shared that he was able to meet with his mentor, Deputy District Attorney, Joe Alindajao at the Prison Court in Delano and observed him during proceedings. In discussing his experience in the program thus far, Ricardo, states, “As a first-generation college graduate, navigating life after college has been quite a journey. With the help of my family, friends, and professors, I have learned to develop the skills necessary to succeed in law school.

LAW

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We still have several KCCL students who are looking to be paired with local attorneys through this program. We hope to build the program as each new class enters the law school. If you are a local attorney or judge, please reach out to Dr. Jeanine E. Kraybill at jkraybill@montereylaw. edu for more information on how to participate! Dr. Jeanine E. Kraybill is an Associate Professor and Pre-Law Program Director at California State University, Bakersfield, as well as the First-Generation Law School Student Program Coordinator for the Kern County College of Law.

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TORRES TORRES-STALLINGS A

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C O R P O R A T I O N

NOVEMBER/DECEMBER 2021


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NEW SUPERIOR COURT JUDGE ELIZABET RODRIGUEZ by Hon. Susan M. Gill

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lizabet Rodriguez was sworn in as a Kern County Superior Court Judge on July 30, 2021. It was a lovely ceremony, held in Department One, as such ceremonies were held for many years in the past. Because of the rising COVID numbers, only a small group of family and friends were present in person. Elizabet Rodriguez was sworn in as a Kern County Superior Court Judge on July 30, 2021. It was a lovely ceremony, held in Department One, as such ceremonies were held for many years in the past. Because of the rising COVID numbers, only a small group of family and friends were present in person. It is said that every bride can plan for three things to go wrong the day of her wedding. If she is lucky, once this number is reached, the bride can relax and know it is smooth sailing from then on. This adage can also apply to the first day on a job. Three things quickly went awry for Judge Rodriguez on August 1, 2021. She was settling into her temporary chambers at 1215 Truxtun, when she received the assignment of a felony trial to be held in Dept. 3 at 1415 Truxtun. Judge Rodriguez gathered up her borrowed robe (hers is on back order) and headed down the stairs and through the door through which she had passed many times before with her good friend Judge Gloria Cannon. Unbeknownst to Judge Rodriguez, however, the door had been changed to sound an alarm if it were opened without the swipe of a card key. Thus, she was greeted RES IPSA LOQUITUR

with a loud siren as soon as she opened the door. #1. Judge Rodriguez headed into the parking structure to take her car across the street for her first trial, only to learn she was locked out of the parking structure. “So, back to the scene of the crime,” as she laughingly called it, and through the loudly squawking door, to borrow a key to get into the parking structure. #2. As she settled into Department 3 for her first trial, Judge Rodriguez realized she had forgotten her name. That is, the nameplate that goes on the bench. #3. Now, she could relax and enjoy her first day as a judge. Except that the challenges kept coming. With the aplomb she has shown during her entire career, Judge Rodriguez weathered the challenges and is on her way to a great career as a jurist. Elizabet Rodriguez grew up in Lamont. Her parents met while picking grapes in the fields, and they instilled in their daughter a tremendous work ethic. After graduating from Arvin High School, Judge Rodriguez entered California State University, Bakersfield, intending to teach high school mathematics. While attending college, she worked in the Law office of David Torres. One of her college professors was Judge Richard Oberholzer, who assigned the class homework to watch a trial. That was easy homework for Judge Rodriguez to complete, she would watch her boss in trial. Through working for and observing Mr. Torres, Judge

Rodriguez realized “how a lawyer is actually able to assist people – especially in hopeless situations.” She changed her major to Criminal Justice, and the world lost a fine math teacher. Judge Rodriguez earned her J.D. from Western State University College of Law, Fullerton, CA. She started her career as an attorney in the Riverside District Attorney’s Office. Three years later she began working for a private firm doing criminal defense work. As so many of us do, she finally came home to Kern County in 2013 and went to work for the Kern County Public Defender. Judge Rodriguez enjoyed much success as a Deputy Public Defender. She prevailed in multiple motions to suppress evidence and motions to dismiss pursuant to Penal Code section 995, as well as writs filed in the Fifth District Court of Appeal. When asked what the secret of her success was, Judge Rodriguez said she is intimately familiar with the Fourth Amendment, and she was always looking for Fourth Amendment issues. She would resist filing suppression motions in cases if she thought there was no true basis for the motion. She waited for the cases in which there were legitimate Fourth Amendment issues at stake. Then she was meticulous in researching and writing her motions, and she often sought the advice and guidance of mentors. She asserted, “Asking for advice is really important.” Inspired and encouraged by friends and mentors, Rodriguez applied


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for a judicial position, and she was appointed by Governor Newsom in July 2021. “I hope that my experience, both legally and based on my background, will help diversify the bench,” she explained. “I am the second Latina judge appointed to the bench, I am local, and I am the second judge appointed to the bench directly from the Public Defender’s Office within the last ten years.” As a Judge, she hopes to “use my position as a platform to encourage youth in the community, especially in our rural communities, like the one I came from, to strive for higher education.” She wants young people to know that coming from a low-income or rural community does not prevent them from going to college and realizing their dreams. Many are thrilled with Judge Rodriguez’s appointment to the

bench. H.A. Sala explains why: “Judge Rodriguez has been devoted to the pursuit of justice throughout her legal career. She has distinguished herself as a gifted advocate with unsurpassed analytical ability and has been universally praised by defense attorneys, prosecutors, and judicial officers for her exceptional work ethic, exhaustive preparation, and dedication to the rule of law. Judge Rodriguez contributes to the bench a determination to overcome adversity, diverse life experiences, and superlative legal acumen. She will bring inspiring honor to the bench, our community, and the legal profession.” Judge Rodriguez and her husband have an elderly dog, Julie, who even at age 16 and with substantial medical challenges, is “a super happy dog.” Judge Rodriguez wants to help

her parents in their retirement years, and she wants to mentor young people. She has reaped the benefit of those who have mentored her, H.A. Sala and Judge Gloria Cannon to name two, and she wants to pay forward such a gift. She has been mentoring a young woman, Fatima Rodriguez, who was in law school. Judge Rodriguez proudly proclaims that Fatima has recently joined the California Bar as an attorney. Judge Rodriguez has reached out to Dr. Jeanine Kraybill, the Pre-Law Society Advisor at CSUB, seeking ways to be involved with students. Judge Elizabet Rodriguez is a welcome addition to the Kern County Superior Court Bench.

NOVEMBER/DECEMBER 2021


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EXPLORERS VISIT DELANO COURT O by Gene Garaygordobil, Editor, DelanoNow

n November 19, 2021, cadets from the Delano Police Department and Kern County Sheriff’s Office explorer programs visited the Delano Court. Supervising Judge David Wolf welcomed the cadets to court and spoke about the importance of education, careers in law enforcement and the law. Judge Benavides told the cadets that when he started elementary school his parents were migrant farm workers and he could not speak English. He made the point that no matter where you come from, if you are willing to work hard you can succeed.

Representatives from the Delano Police Department Explorer’s program were present including Communications Supervisor Michelle Hernandez, Corporal Christopher Nino, and Officer Ephraim Ochoa. Corporal Nino stated that, “Our Police Explorers were excited for the opportunity to experience the courtroom as different critical key players. The mock trial enlightened their perspective of the importance of courtroom preparation and the other important functions the judicial process plays in our society.” The cadets acted as the prosecutors, defense attorneys, bailiff, clerk and law enforcement witnesses. Judge Benavides presided over the mock hearing. Prosecutors David Eller and Elizabeth Villanueva were the mock trial coaches for the cadets. Of the experience, Delano Police Explorer R. Jay stated: “It was an awesome experience being a part of the mock trial. I was bailiff. We saw the inmates’ holding cells and learned how a court trial works.” According to Judge Wolf, RES IPSA LOQUITUR

“The cadets did an amazing job. I was very proud of them.” After the mock hearing, the cadets headed over to Delano’s Prison Court. There, Joe Alindajao, Deputy DA and Delano Council member, gave a guided tour of the prison court to the cadets. He also spoke about his passion fighting for the rights of crime victims, and encouraged the cadets to stay involved in their community. Deputy DA Alindajao is a prosecutor assigned to prison court and handles mostly serious felony cases. The evening ended in the parking lot where a Delano Police SUV, a Kern Valley State Prison chase vehicle, and a Kern County Sheriff’s patrol vehicle were waiting. The cadets received some educational and fun introduction to police vehicles. Correctional Officer Rafael Torres

represented KVSP and the California Department of Corrections. KVSP provided soda cozies for all the cadets. Judge Wolf concluded the event by thanking the cadets and the volunteers from the District Attorney’s Office, Kern Valley State Prison, Delano Police Department, Kern County Sheriff, and the cadets’ parents and family members. Judge Wolf provided each cadet with copies of the United States Constitution, Prison Court pens, and Deputy D.A. Elizabeth Villanueva provided snacks and drinks for the cadets and their families. Tax dollars were not spent on these gifts or food items. Edited for currency. Reprinted with permission of DelanoNow.com and McFarlandToday.com.


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NOVEMBER/DECEMBER 2021


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UNIFY OVER PROBLEMS INSTEAD OF BELABORING U by Brandon Stallings

In 2020, Justice Brian Currey, of the Second District Court of Appeals, approached Alan Steinbrecher, Chair of the State Bar of California, with an interest in continuing to advance professionalism and civility initiatives among California lawyers.

nify over problems instead of belaboring those which divide.

“So let us begin anew -remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.” ~ John F. Kennedy In the last issue, Dan Jacobson presented the dangers of incivility driving the legal system. At the close of the article, the author proclaimed the virtue that “[m]y profession requires its members to follow social proprieties, be decently polite, behave with dignity, behave with courtesy, behave with integrity, and behave without rudeness…[t] ogether 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.” Incivility is certainly nothing new, however it seems to have been more prevalent in the last 10 years. In 2013, and to combat this trend, former State Bar President, Patrick Kelly, spearheaded an effort to change the attorney oath to include the words: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” The Board of Trustees adopted this language, and the RES IPSA LOQUITUR

Supreme Court added it to the attorney oath that new lawyers take when initially sworn in as an officer of the court. It was codified first as California Rule of Court 9.3 and then when the Rules were renumbered, to Rule 9.7 Since then, the State Bar has engaged in several initiatives to continue the advancement of professionalism, including the addition of a 10-hour MCLE program for new lawyers that is focused on common pitfalls new lawyers make, and the addition of one hour of mandatory MCLE in the area of implicit bias training. Unsurprisingly, issues of bias can be the root cause of incivility and inter-personal division among colleagues, opposing counsel and the Bench.

I was asked to co-chair the Exploratory Task Force on Civility, and out of these initial meetings, the California Lawyer’s Association agreed to act as the official house for this project. It was evident that there were three objectives that could help to advance civility, so we added one more vice co-chair, former president of CLA, Heather Rosing, to the leadership of the group. Justice Currey, in addition to Chairing the overall mission, will oversee the group advocating for a rule requiring one hour of MCLE devoted to the area of civility. Along with Kern County Superior Court judge, the Honorable David Wolf, I will be co-chairing a committee that will look at expanding the civility oath to be cyclically reaffirmed by all lawyers, regardless of when they were initially sworn in. Ms. Rosing will be taking on the most ambitious area of the three: exploring whether there should be a civility rule of professional conduct that would be enforceable by the State Bar. A proposed rule would have to meet Constitutional muster, as there are several cases relating to First Amendment issues and complaints involving incivility.


Even with these projects on the horizon, we as lawyers, should own all aspects of our profession and not wait for a rule to tell us to be a decent human being. We already do an admirable job of this, especially by having a state licensing body that is made up of a majority of lawyers that has, as its sole mission, to punish lawyer misconduct and protect the public. A portion of our licensing fees are set aside to help victims of attorney misconduct, which, in my opinion, is one of the greatest things that we could do as a profession to ensure that the public trusts in those who have taken an oath to uphold the laws of California and the United States. We must continue to personally own the area of civility and ensure that we are doing unto others as we would have done unto us, in every interaction with prospective clients, the public, jurors, opposing counsel and the Bench. The first woman appointed to the

Supreme Court, Justice Sandra Day O’Conner said, “unfortunately civility is hard to codify or legislate, but you know it when you see it. It’s possible to disagree without being disagreeable.” Whether there ends up being an enforceable civility rule, more MCLE, or reaffirmation of our oath as a lawyer, the issue of civility comes back to the human condition and the realization that we are all put on this earth to serve each other with love, dignity and respect. Or, if that isn’t enough motivation, in the words of Lady Mary Wortley Montagu, author and wife to British Ambassador to the Ottoman empire in the mid-18thcentury: “civility costs nothing, and buys everything.” Be the change you want to see in opposing counsel. Continually be mindful of how you can personally own this aspect of our profession. Be a good person and do the right things for the right reasons. Let us unite over a common desire to be

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professional with each other, and let us not see civility as a weakness, but rather as a noble aspect of our profession.

Brandon Stallings is a Deputy District Attorney in Kern County and prosecutes sex related offenses in the Special Victims Unit. He is the Supreme Court Appointee as ViceChair to the State Bar of California, Board of Trustees, and has been on the Board since 2015. He currently chairs the Ad Hoc Commission to re-examine the Bar’s Discipline System and is on Regulation and Discipline Committee which oversees the Bar’s prosecutor’s office, State Bar Court, Probation Department and Lawyer Assistance Program. He also Chairs the Mothers Against Drunk Driving Auxiliary Committee and has presented on lawyer ethics to the local law school, local colleges and intern programs. He enjoys spending time with his wife Alekxia and their daughter, Siena Valentina.

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RES IPSA LOQUITUR


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2022 Installation Dinner Thursday, January 20, 2022 6pm Reception/7pm Dinner Bakersfield Country Club, 4200 Country Club Dr.

2022 OFFICERS & DIRECTORS Xochitl Garcia, President T. Mark Smith, Vice President Thomas Feher, Treasurer Paul Harman, Secretary Alekxia Torres Stallings, Immediate Past President Anthony Azemika, Carol Bracy, Gina Cervantes, Devin Brown, Stephanie Gutcher, Diane Christian, James Harvey, Micah Nilsson

YLS: $50 Members: $65 Non-members: $80

RESERVATIONS phone: 661-334-4700 email: rbeagle@kernbar.org

NOVEMBER/DECEMBER 2021


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LEGAL WRITING PRINCIPLE 3 by Joe Regalia

Principle 4: Write Fluently

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luency comes from cognitive science and may be the most important concept for us legal writers. It means: How easy is it for your reader to process your writing and pull out the ideas you are dishing out? For legal writers, fluency is magic. Our busy readers are desperate for the ideas and points to snap together with ease, needing little effort or hard thinking. Cognitive science says that when we read fluent writing, we tend to agree with it. We love the feeling of having “figured it out” and it will be incredibly hard for anyone else to replace that understanding with an opposing view. Fluency brings together many things, like the simplicity of your words and sentence structure, how easy your language is to visualize and imagine, whether you seamlessly transition from sentence to sentence and idea to idea, how thoroughly you give your reader context before dropping them into complexity, how well you roadmap different ideas, whether you clearly explain how different ideas or concepts interact, and how engaging your prose is so that your readers want to keep writing. In the end, it’s all about making it easy for a new reader to reach the same level of understanding you have. You do that by making things simple, organized, and crystal clear. Then you use devices like verbs that trigger the senses to make your writing fun to read. Take a look at what a difference fluent writing can make. This first example is classic legal fluff—full of clunky words and complex, outdated sentence structure: To avert the all too common enactment of requirements without regard for their local cost and tax impact, however, the commission recommends that statewide interest should be clearly identified on any proposed mandates, and that the state should partially reimburse local government for some state imposed mandates and fully for those involving employee compensation, working conditions and pensions. Now see the difference some fluent writing can make. Pay attention to how much easier it is not just to read this, but to process the ideas: New York often passes mandates telling local governments what to do. These laws often improve life for everyone. But they come with a cost. Sometimes the state doesn’t consider the burden on local government, or how much money taxpayers will have to shell out. RES IPSA LOQUITUR

So we have an idea: The state should pay back local governments for some of these so-called mandates, like those related to employment. Or take this example, penned by Justice Kagan. Look close at how she transitions from idea to idea smoothly— one of the most powerful fluency boosters. Also note the concrete verbs and visual nouns and descriptors—like a “thin cushion of air” and “downward-directed fans.” And likewise here, the Government could protect “only th[e] amount of water” in the Nation River needed to “accomplish the purpose of the [YukonCharley’s] reservation.” And whatever that volume, the Government’s (purported) reserved right could not justify applying the hovercraft rule on the Nation River. That right, to use the Park Service’s own phrase, would support a regulation preventing the “depletion or diversion” of waters in the River (up to the amount required to achieve the Yukon-Charley’s purposes). But the hovercraft rule does nothing of that kind. A hovercraft moves above the water, on a thin cushion of air produced by downward-directed fans; it does not “deplet[e]” or “diver[t]” any water. Nor has the Park Service explained the hovercraft rule as an effort to protect the Nation River from pollution or other similar harm. To the contrary, that rule is directed against the “sight or sound” of “motorized equipment” in remote locations—concerns not related to safeguarding the water. So the Park Service’s “public lands” argument runs aground…” Other Tools for Writing Fluently Try these other techniques for making your writing as fluent and readable as possible Simple and short words Use more simple and short words. Prefer words with


few syllables, words that are familiar, and words that are specific rather than vague. So “money” or “cash” instead of “funding” and “pay” instead of “remunerate.” Specific words Specific words are easier to visualize and remember. For example: “Three broken ribs” instead of “serious injuries” and “The police’s search” instead of “the underlying act.” Cut state of being verbs Cut bland “state of being” verbs; prefer active and visual verbs. The “state of being” verbs tell your reader little, save that you “are” or that something “is.” The verb is silent, letting other words do the work: “Is, Am, Are, Was, Were, Be, Being, Been, Have, Has, Had, Do, Does, Did, Shall, Will, Should, Would, May, Might, Must, Can, Could.” Evocative verbs Simply using more active and visual verbs will strengthen your writing. But to take your writing a bit further, become comfortable with the subtle effects you can achieve by selecting verbs that evoke particular emotions or images. Cut nominalizations Always look out for nominalizations, also known as Zombie Nouns. These are verbs in noun clothing, often ending in -ion (“determination” instead of “determine”).

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Domestic Violence Attorney Housing Attorney Housing Senior Paralegal Consumer Health Advocate View Job Descriptions at https://www.gbla.org/about-us/employment-opportunities/ GBLA is an equal opportunity employer, and all qualified applicants will receive consideration for employment without regard to race, color, religion, age, sex, national origin, disability status, genetics, protected veteran status, sexual orientation, gender identity or expression, or any other characteristic protected by federal, state or local laws

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Smart descriptors Subtly use descriptors (most commonly adjectives and adverbs) and only when they help. Please: Let nouns and verbs do the heavy lifting.

Fresh transitions Replace long, boring transitions with fresher ones. The abrupt, repetitive transitions that many lawyers use are distracting. Instead use echo words and concepts from prior sentences or use fresh and varied transition phrases to move from sentence to sentence. Simple and familiar words Invite your reader into your sentences with simple, familiar words that put them at ease. Do this by: (1) avoiding introductory phrases, (2) beginning sentences with short words, and (3) beginning sentences with familiar words. End with a punch The end of sentences are emphasized; it’s what your reader remembers. So put at the end what you really want your reader to remember. Vary your sentence lengths Opt for shorter sentences, but vary your sentence lengths and your punctuation. Read good legal writing and you’ll see the same sentence patterns: Mostly shorter, a sprinkling of very-short, and the occasional elegant-long— with some diverse punctuation sprinkled in. Choose your subjects wisely Be thoughtful about the subjects you choose and where you put them. Opt for subjects that people can visualize or connect with, like people or things; try to ensure the subject is in the first five or six words of each sentence, lest your reader get lost; and start at least a third of your sentences with the subject. Engage the senses Use visual verbs, descriptors, and nouns to build images and engage the senses. More advanced techniques, like rhetorical flourishes, will do even more. Your readers will be drawn into the writing and are much more likely to remember what you tell them. 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. NOVEMBER/DECEMBER 2021


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WHEN CHIROS AND LAWYERS MUST SAY “NO” by H. Dennis Beaver, Attorney at Law Today’s story will be of special interest to both chiropractors and personal injury lawyers who have recently started their own practice and are tempted to accept just about anyone who has been in an auto accident. “This can be a monumental mistake,” warns California attorney Shawn Steel. His practice concentrates on personal injury law and strongly supports the chiropractic profession. He lectures at Palmer West Chiropractic, Life Chiropractic College West and Southern California University of Health Sciences. “If there is one professional area where attorneys and chiropractors should be on the same page it is in recognizing when to say “Thanks for coming to see me, but I don’t think that my office will be able to help you.” He provided this list of red flags that must be recognized and immediately acted upon. Beware of the Wandering Thief This person’s goal in life is to take advantage of anyone whose path they cross. They intend to cheat you before even walking through your door. They may have a legitimate accident case. They may be hurt. But their sole objective is a payout in their pockets and not yours! If the doctor recommends that they have an attorney, the wandering thief will strongly object! An attorney would require a signed lien–assuring payment of all bills and attorney fees–but without it, and after care is complete: RES IPSA LOQUITUR

(A) The Wandering Thief fires the lawyer; (B) Negotiates the case themselves with the insurance adjuster; (C) Gets all the money, pays none of the treatment bills or attorney fees. Then they vanish. The giveaway for the lawyer is that, after signing the retainer agreement, the client will pressure the lawyer to have the doctor order lots of medical testing, to generate high bills. Once a settlement amount it negotiated– but not paid–they will be unhappy with the numbers, fire the lawyer and try to settle the case themselves. Even if the attorney’s name is on the settlement check, they forge the lawyers name, take the money and disappear. The Know-It-All These people know more than the doctor and the lawyer combined. They constantly second guess the doctor and argue with their lawyer, consuming a tremendous amount of time and energy. It is usually better for your mental health to let that know-it-all patient go! This person bring nothing but aggravation to the lawyer’s office, often saying things like, “I had a friend who with the same

facts as my case settled for eight times as much as you want me to take, so what’s wrong with you?” The Grouch - First Cousing to the Know-It-All The Grouch is easy to spot. Your staff are the first ones to notice that you’ve got a Grouch in your office. Always listen to your staff as they will tell you the truth. The Grouch complains about everything! They blame the staff for not setting their appointment as the


best time, not giving them adequate advance notice, and make up stuff to complain about. They take the joy out of practice for both doctors and lawyers.

when you let that person go. Mentally you are free from a burning, destructive sensation in your life. Neither you nor your staff should have to experience this.

They are miserable human beings. While it is best to unload this Grouch, you can try to rescue the situation by saying, “If you want to stay with us, you need to stop complaining.”

The Doctor/Lawyer Hopper These people immediately trash the last lawyer/doctor who was handling their case. If it is just one attorney, or one doctor, that can happen. But if it is multiple doctors or lawyers? You must think, “This person will never be happy with me, no matter what I do. So why go through the effort as I will no doubt get fired anyway.” Decline to accept them.

The Split Personality: A First Cousin to the Grouch, a real life version of Dr. Jekyll and Mr. Hyde This person is nice to you but miserable to your staff: insulting and yelling. However, they are as sweet as cotton candy to you. Give them one warning: “Yell at my staff one more time, and you are out of here! No one deserves to be spoken to the way you treat people.” Doctors and lawyers need to understand there is a great liberation

This Person Gives Me a Bad Feeling! If there is something inherently negative between you and this potential patient/client, do not accept them. You do not need a reason. It may not be rational, but trust your inner voice. “Trust the Force!”

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A Business Prof Offers His Formula Lyle Sussman, the former Chairman and Professor of Management, College of Business, University of Louisville offered this recommendation for anyone in business who needs to say “No.”

“Say no if there is a disconnect– differing expectations–between what the person thinks you will provide and what you know you can deliver. “Every plastic surgeon can tell a story about a patient disappointed because the procedure did not produce the gorgeous effect they anticipated.” 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.

NOVEMBER/DECEMBER 2021


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ADVOCATUS CAECUS I by C.M. “Bud” Starr

want to discuss something which is unmentionable in polite society: the n-word. That word has an ugly sound, an ugly meaning, and an ugly history.

Years ago, I listened to an interview of popular entertainer and language enthusiast, Tony Randall. He was asked what English words were beautiful. Randall said he loved the sound of the phrase “summer afternoon”. When asked for an ugly word, he selected the word “booger”. The n-word carries that ugliness, even though words that rhyme with it like bigger, digger, and jigger do not have that negative feel. The n-word’s roots come from Spanish and Portuguese words meaning “black”. During the era of slavery, the word was used as the most pejorative expression for slaves. After emancipation, some parts of society referred to former slaves and others of African heritage as “colored people”. The n-word, however, was broadly maintained as a slur. In 1915, W.E.B. Du Bois published his book The Negro. Du Bois spent years trying to substitute negro, which also comes from Latin derivate words meaning black, in place of the n-word. His efforts were fairly successful and lasted until the late 1960s. By 1968, social movements substituted the word “Black” for negro and the n-word, but the n-word maintained its status as an insult. In recent years, we have passed through “African-American” and “Afro-American” to settle on a term shared by all non-European descendants. That term is “people of color”. In order to disarm those who would use the n-word as an insult, or even a casual reference, some Black rap stars and comedians have claimed the word for their own use. While understandable, this social move has caused its own set of problems. When a young teenager gets her driver’s license and sends out a self-congratulatory message paraphrasing a rap song, it is sad that her life is nearly ruined. Similarly, when an accomplished editor at a major newspaper is reported to have pronounced the n-word two years prior in a discussion of its inappropriateness, and he loses his job, one may wonder what the limits of our guardedness will lead to. While preparing this article, I asked my Smart Speaker about the publication of Du Bois’s book, The Negro. RES IPSA LOQUITUR

While informing me about the book, its availability, and its price, the electronic devise refused to pronounce the word “negro” and instead substituted a beep as though the word had been an obscenity. Even our machines have been programed to avoid the n-word and its outmoded replacement. If we take any lesson from the sound, the meaning, and the history of the n-word, we should let it die out from lack of use like many words in the English language have done over the last thousand years. 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.

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.


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Hanna Brophy is hiring attorneys for our Bakersfield office. Hanna Brophy has been representing a wide variety of clients, including some of the largest manufacturers, retailers, farming businesses, and their insurers for more than 75 years. Focused on innovation, Hanna Brophy maintains all documents in a paperless environment. We constantly upgrade our technology to be as efficient and user-friendly as possible, allowing our attorneys to be mobile with fully encrypted laptops to access case information. If mobility and flexibility are what you are looking for in a law career, qualified workers’ compensation attorneys with one to three years of experience should contact us now. In addition to taking depositions and making appearances at the WCAB, you will: • assume responsibility for cases at all levels of complexity • communicate with clients • develop strategies leading to efficient resolution of cases • negotiate and settle cases-in-chief as well as liens • draft pleadings and reports • handle all aspects of workers’ compensation litigation Workers’ Compensation Defense Attorney – Qualifications • 0 to five years of workers’ compensation experience • Valid CA Bar License Workers’ Compensation Defense Attorney – Benefits and Perks • Moving and relocation allowance • Health Insurance and 401k Plan • Extensive In – House Training and CLE • Competitive Salary and Bonus Hanna Brophy values it employees highly promoting opportunities for growth and advancement within our firm. Please submit resumes to:

Ish Bhanu ibhanu@hannabrophy.com Elizabeth Barravecchia ebarravecchia@hannabrophy.com Bakersfield | Fresno | Los Angeles | Oakland | Orange | Redding | Riverside | Sacramento | Salinas | San Diego | San Francisco | San Jose | San Luis Obispo Santa Rosa | Stockton | Van Nuys

NOVEMBER/DECEMBER 2021

www.hannabrophy.com


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ANTHONY J. KLEIN: AN ICON IN KERN LAW by Catherine E. Bennett, Senior Counsel at Klein, DeNatale, Goldner

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t KDG, we mourn. Our senior partner, the fearless Anthony J. Klein, has left us. Tony was admitted to the California Bar in January 1964 and practiced for a brief time with the District Attorney’s Office where he learned to try cases. He left the DA’s office to forge a civil practice with DiGeorgio, Davis & Nairn. Vince DiGeorgio, Tom Davis, and John Nairn made the wily young Tony Klein a partner in DiGiorgio, Davis, Nairn & Klein, and as they say, the rest is history. That firm evolved into what is now Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, LLP, consisting of over 20 lawyers with offices in four California cities, serving clients large and small. Tony received his LL.B. in 1963 from the University of California Berkeley’s Boalt Hall after graduating from Stanford University. He served in the U.S. Coast Guard. He was proud of his service and proud of his law school, but it was his undergraduate alma mater that held his heart. He was a Stanford man, through and through. He was jubilant when their football team won and in a dark place when they didn’t. And the same held true for his beloved San Francisco Giants. The truth is, Tony loved sports. If there was a ball involved, Tony was in! Tony was born in 1938 and used to joke that he had been around since “Christ was a corporal.” He saw many changes in Bakersfield, the nation, and the practice of law and most of RES IPSA LOQUITUR

those changes he lauded. He could not understand people who longed for the good old days. What was good about segregation or women and others being second class citizens, he queried. Tony was raised in Bakersfield and spent a lot of time at his father’s business, the jewelry department at Brocks Department Store. He did love his Rolex and nice cuff links but learned early on that a plastic banded inexpensive watch was the one to wear in front of a jury. He also loved a perfectly tailored suit and tie and always looked dapper for court or deposition. He was AV rated by Martindale Hubbell and a member of ABOTA. Even in his later years, after he moved away from Kern County to live near his grandchildren in San Diego, he was voted one of San Diego’s Top Lawyers for 2013.

Tony loved representing the little guy. He was most at home representing seriously injured plaintiffs in products liability, automobile and truck accidents, medical malpractice, and wrongful death cases. But Tony was a great business litigator, too. One of the most recent and notable examples is when he represented Sunland Oil after the horrible explosion at their Coffee Road plant killed a motorist in the mid-90s. He also served Nahama and Weagant Energy as general counsel for over 20 years and served Freymiller Trucking as general counsel for eight years. All of us at KDG count Tony as a dear friend and mentor, but three of us have spent thousands of hours working side by side with him over the last 30 plus years. Jay Rosenlieb was the first to follow Tony through tough litigation. He and Tony represented Nahama Weagant against British Petroleum, where he and Tony


participated in a landmark California case on the crime-fraud exception to the attorney-client privilege: BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240.

write my client’s story, not just a legal brief. And, of course, I learned to bicker with Tony about anything and everything. He loved nothing better than a good-natured verbal spar.

Tony was a true mentor and teacher. Tony would pull Jay aside during deposition breaks and explain his strategy and he spent many hours working with Jay to develop the litigation strategy from beginning to end.

Ryan Bright was Tony’s most recent protégé. Ryan and his wife decided they wanted to raise their family in the San Diego area, and so Ryan was happy to join Tony in San Diego and open the KDG office there.

Tony also gave great life advice. Jay recalls one piece of advice from being a road warrior: “Always tip the concierge well.” When Jay told me that story, I had one of my own: “Always use the valet.”

In an office of two, Ryan and Tony spent all their time together. In true Tony fashion, he taught Ryan to

When I joined the firm in 1995, Tony was just returning to regular practice after several years deeply involved in the Marianne Klein, Ryan Bright, Anthony Klein Stringfellow Acid Pits litigation. He immediately picked up practice law by being a true mentor several PI cases and needed help. and teacher, but always in the The partners decided it should be funniest way possible. Ryan says me—fresh out of law school! there are too many stories—many unpublishable—about practicing law Like he taught Jay, Tony taught with Tony Klein. But one of Ryan’s me to take a deposition and how favorite Tony stories concerns to strategize discovery. He taught Stanford and sports. me to stand toe to toe with lawyers that towered over me in stature, In late March 2013, after Stanford as well as in experience, and to be lost to Alabama early in the National not afraid. Tony and I worked cases Invitational Tournament, Ryan called that arose in the desert dust, on Tony one afternoon. Tony put him highways near and far, and on the off—he was working on an important streets of Bakersfield. I learned to email. When Tony called Ryan ask the tough questions. I learned to back, he explained, “I am sending an

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e-mail to Bernard Muir, the Athletic Director at Stanford.” Ryan rolled his eyes, thinking, “Oh boy, here we go.” Tony read Ryan the email and it included, “Stanford Basketball has fallen into a sad state” and “are you willing to settle for another 9-9 season?” “Does the coaching excellence that made our football team a top national program not apply to basketball?” Ryan teased Tony every day for several days about it, querying whether Tony had heard from Mr. Muir. Finally, Tony was able to report that, yes indeed, Mr. Muir had responded assuring Tony that Stanford had a plan. The next year Stanford basketball improved, but their football team started to slip. And so, in late 2014 Mr. Muir received another email: “Dear Mr. Muir, It’s me again….” Once Tony discovered email, none of us were the same. Tony sure did love his Stanford sports! But nothing was more important than his family. Tony and Marianne have two children, Michael and Laura. Michael followed in Tony’s footsteps and is a lawyer in San Diego while Laura is a Silicon Valley entrepreneur and author. Michael’s children were Tony’s pride and joy— he loved being a grandpa. That was another thing Tony taught Jay and everybody he knew: revel in the positive and celebrate your children’s success.

A celebration of life will be planned in the future—the Klein family wants it to be a safe gathering. NOVEMBER/DECEMBER 2021


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BENCH AND BAR AWARD DINNER [PHOTOS BY HEATHER RAYHILL]

NOVEMBER/DECEMBER 2021


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BENCH AND BAR SOCIAL [PHOTOS BY HEATHER RAYHILL]

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