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July/August 2017

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The Future Is Now - AI in Legal Practice SCBA Past Presidents Lunch - a New Tradition

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EDITOR’S MESSAGE Betsy S. Kimball Editor-in-Chief


by Betsy S. Kimball


everal months ago, Judge Ken Mennemeier asked me whether the magazine might be interested in his Inn of Court team’s project on artificial intelligence – AI. Do I want ice cream? Yes please!

In ± 1984, I was an associate at McDonough Holland & Allen (RIP) when the firm administrator, Frank Guidi, bought the first “personal computer” – desktop – that any of us had seen. Things have changed, and things are continuing to change. Google the term “artificial intelligence lawyer” and you will see articles that all but predict the demise of the legal profession and others that are positive. AI has begun to nibble on some of the edges of law practice. No point in ignoring or denying it – this is happening. What does this mean for us, here and now in 2017? Several things (with suggestions). Number one, read up on what is going on. The articles in this issue provide an excellent start: Landon Bailey’s The Future Is Now – Artificial Intelli-

gence in Legal Practice; the comments of Kathi Finnerty, William Kellermann, and Derek Ulmer in From the Days of Orwellian Fears, to the Internet of Things, and Now to AI …; and the Mennemeiers’ (Judge Ken and daughter Kelly) thought-provoking Imagining a Role for Artificially Intelligent Juries. Number two, take the time to assess what is likely to happen in your practice over the next three to five years. Evaluate what new skills you will need to acquire or sharpen and what technology you may need to acquire. Last – and maybe most important – embrace the change and make it work for you. One of the AI tools Landon Bailey discusses is COMPAS (Correctional Offender Management Profiling for Alternative Sanctions). A cert. petition has been filed by a criminal defendant sentenced with the use of COMPAS (No. 16-6387). The cert. petition is on SCOTUS’s June 22 calendar. For a good read on the case and the constitutional issues, I recommend Lighthouse, Damned Lies & Criminal Sentencing Using Evidence-Based Tools, 15 Duke Law & Tech. Rev. 327 (2017) at http:// Beach reading, this is not. Thanks to Judge Mennemeier and all those who contributed to this issue.

The SCBA regrets the sudden passing of Phil Rhodes, 1966-2017 – lawyer, husband, and father of three young children.


SACRAMENTO LAWYER | July/August 2017 |

EDITOR-IN-CHIEF Betsy S. Kimball ASSOCIATE EDITOR Ellen Arabian-Lee STAFF EDITORS Bryan Hawkins, Heather Cline Hoganson, Maureen Onyeagbako MAGAZINE COMMITTEE Betsy S. Kimball, Samson R. Elsbernd, David Graulich, Coral Henning, Heather Cline Hoganson, Yoshinori H.T. Himel CREATIVE DIRECTOR Mary J. Burroughs (916) 564-3780 - PRODUCTION DESIGN Milenko Vlaisavljevic ADVERTISING SALES EVENTS - MEMBER CLASSIFIED ADS (916) 564-3780 - SCBA OFFICERS Sabrina L. Thomas - President Sil Reggiardo - 1st Vice President Sean McCoy - 2nd Vice President Shanae Buffington - Secretary/Treasurer SCBA EXECUTIVE DIRECTOR Mary J. Burroughs -

Sacramento Lawyer (USPS 0981-300) is published bi-monthly by the Sacramento County Bar Association, 425 University Ave., Suite 120, Sacramento, CA 95825. Issn 1087-8771. Annual subscription rate: $6.00 included in membership dues, or $24.00 for nonmembers. Periodicals postage paid at Sacramento, California. Postmaster: Send address changes to Sacramento Lawyer, 425 University Ave., Suite 120, Sacramento, CA 95825. Copyright 2017 by the Sacramento County Bar Association. Each author’s commentary reflects his/her individual opinion only and not that of his/her employer, organization with which he/she is affiliated, or Sacramento Lawyer magazine, unless otherwise stated.



FEATURE ARTICLES 16 The Future Is Now – Artificial Intelligence in Legal Practice 18 Imagining a Role for Artificially Intelligent Juries 20 From the Days of Orwellian Fears, to the Internet of All Things, and Now to AI…. EVENTS 8

SCBA Past Presidents Lunch – a New Tradition

22 2017 Annual Operation Protect and Defend Law Day Dinner Celebration 24 SCBA Golf Tournament – Another Successful Year


SECTIONS AND AFFILIATES 10 LGBT Rights Trailblazer Rosemary Metrailer Honored at SacLEGAL Fifth Annual Founders’ Award Reception 14 Public Law Section Hosts Discussion on the Ethical and Practical Considerations of Representing Clients Engaged in the Marijuana Industry 25 Barristers’ Club Update 26 Tax Section Hosts 4th Annual Tax Symposium


30 Meet the South Asian Bar Association of Sacramento SUPPORTED ORGANIZATIONS 28 Sacramento Law Foundation Hosts Big Day of Giving VLSP 12 VSLP 2.0 DEPARTMENTS



4 Editor’s Message 6

President’s Message

COVER Sacramento Lawyer magazine welcomes letters and article suggestions from readers. Please e-mail them to The Sacramento County Bar Association reserves the right to edit articles and letters sent in for publication. Please contact the SCBA at 916-564-3780 for deadline information, fax 916-564-3787, or email Web page: Caveat: Articles and other work submitted to Sacramento Lawyer magazine become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.

Artificial Intelligence | July/August 2017 | SACRAMENTO LAWYER



How Artificial Intelligence Is Changing Our Legal Landscape by Sabrina L. Thomas

President, Sacramento County Bar Association

n California State Bar Trial Lawyer Hall of Fame, 2001 n Fellow, American College of Trial Lawyers, since 1986 n Northern California Super Lawyers since inception n Best Lawyers in America since inception, recently:


u Lawyer of the year, Real Estate Litigation,

tion yer?

rtificial intelligence is changing

skills and knowledge, and the lack of

Sacramento, 2014 the way lawyers think, the way incentive for efficiency built into the u Lawyer of the Year, Commercial Litigation, they do business, and the way they inhourly billing model have contributSacramento 2010 teract with there2012, come a 2014ed to that resistance. Over the last few the clients. Company Will Litigation, 2013, u Bet Commercial Litigation, 2012, 2013, timeu when we will rely more on a 2014 royears, however, numerous AI solutions Litigation-Banking and Finance, 2012, 2014 been developed for legal use, and u bot for legal advice than a lawyer? Ac-2013, have u Litigation-Real Estate, 2012, 2013, 2014

cording to several experts, robots will the profession is beginning to see the not replace lawyers but will work with advantages of AI. them similarly to how physicians now One of the most significant beneutilize technology to deliver healthcare fits of AI is its impact on access to juswith the use of artificial intelligence tice. The majority of people who need (AI). AI is the theory and development a lawyer cannot afford one. AI provides of computer systems that perform many consumers and small businesses tasks that normally require human inwith an alternative to the traditional telligence, such as visual perception, legal delivery model. Take LegalZoom, speech recognition, decision-making, which helps individuals and small m and translation between languages. We businesses with documents they need C/ (916) 825-9952 F/ (916) 525-8446 are accustomed to using AI in our evto produce for a fraction of what a eryday lives through the use of comlawyer would charge. Also, consider o, CA 95814 DoNotPay, created by an 18 year old puters, health care, cellular phones, security devices, smart televisions, 2016 to challenge incorrectly issued Sacramento County Publicetc. Law in Library Now AI is increasingly becoming a parking citations. The online robot has SCBA 2015 staple in the delivery of legal services. successfully challenged 160,000 parkYet, the legal profession has been reing tickets in New York City and Lonmarkably slow to adopt information don with a 64 percent success rate. The technology outside of online databases way it works is users visit the company such LexisNexis and e-discovery softwebsite and instant message with an ware. The traditional law firm model automated service (bot) that asks them MAGAZINE that focuses on developing individual a series of questions. Upon completion


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of the exchange, the bot takes the user information and creates a document that can be used to challenge the tickets. It is a great example of technology being deployed to further the public interest and to address the access to justice crisis. This does not mean that lawyers will be replaced by technology. But AI supported enterprises like LegalZoom and DoNotPay will enable those who cannot afford lawyers with access to “legal” assistance. Still, lawyer tasks, like advising clients, writing legal briefs, negotiating and appearing in court, will remain beyond the reach of computerization. So while AI will not replace lawyers, it will continue to profoundly alter the way legal services are delivered, enabling tens of millions of individuals and small businesses to obtain representation by significantly reducing legal costs and providing a wider array of accessible service options. Carpe diem!



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SCBA Past Presidents Lunch a New Tradition

Past President Deborah M. DeBow (1995), Past President Judith A. Harper (1988), & Past President Angela Lai (2015)

“Bookended” by Tom Eres (1981) and Heather Hoganson (2016), 14 past presidents of the SCBA lunched with the Chief Justice, Presiding Justice Vance Raye, US District Judge Kim Mueller, Presiding Judge Kevin Culhane, and many members of the Sacramento bench at the first annual Past Presidents Lunch. Justice Art Scotland (ret.) served as the emcee of the program, highlighting the excellent relationship between bench and bar – past and present.

The Chief Justice addresses the group

Past President Mike Mills (2009), Justice George Nicholson, & Justice Art Scotland (ret.)

Judge Raoul Thorbourne with Presiding Judge Kevin Culhane

Judge Kim Mueller, SCBA Executive Director Mary On the dais, Judge Culhane chats with the Chief Justice and Justice Scotland (ret.) (back to camera) while the attendees enjoy lunch Burroughs, & Chief Justice Tani Cantil-Sakauye


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Pamela Jones is the 2017 Co-Chair of SacLEGAL. She can be contacted at

Photos courtesy of Jammin’ Jo

LGBT Rights Trailblazer Rosemary Metrailer Honored at SacLEGAL Fifth Annual Founders’ Award Reception by Pamela Jones

SacLEGAL board and presenter Phil Isenberg honor Rosemary Metrailer - (back row) James Tiehm, Joseph Boniwell, Natalie Bustamante, Jessica Warne, Lexi Howard, Nicholaus Norvell - (front row) Pamela Jones, Phil Isenberg, Rosemary Metrailer, Kathi Finnerty, Emmanuel Salazar, Jocelyn Wolf, & Heather Thomas


acramento attorney, activist, volunteer, and author Rosemary Metrailer was honored by SacLEGAL, Sacramento’s LGBT Bar Association, at its Fifth Annual Founders’ Award Reception. The event was held at the urban, contemporary offices of Uptown Studios on 23rd Street in Sacramento. Metrailer’s work and activism are legendary in Sacramento. She formed the first all-female law firm in town, Metrailer & Langenkamp. In the early 1980s Metrailer represented Reverend Jerry Sloan of Sacramento’s Metropolitan Community Church who brought a breach of contract action against


Reverend Jerry Falwell of the Moral Majority. Falwell failed to pay $5,000 to Sloan, which he had promised if Sloan could prove that Falwell made derogatory, hurtful, and inflammatory remarks about persons who are gay. Metrailer prevailed, and the suit resulted in an award that was used as the initial funding for the Lambda Community Center, now the Sacramento LGBT Community Center. During her remarks Metrailer recalled the early days of her practice when she had to persuade the bailiff that she was an attorney, and not a secretary, before being allowed to enter a

SACRAMENTO LAWYER | July/August 2017 |

Justice William Murray, Justice Ron Robie, Phil Isenberg, & Magistrate Judge Allison Claire

judge’s chambers. Metrailer acknowledged the dramatic changes that have occurred since she began practicing in the 1970s, but expressed concern that even today persons in the LGBT community are faced with threats to equality. Her call to action was to remain vigilant and to speak up whenever we witness an abuse of authority, a lie, or a derogatory and predatory act by anyone. Metrailer was introduced by her mentor who is another Sacramento icon, Phil Isenberg. Isenberg served as mayor of Sacramento from 1975 to 1982, and California Assembly member from 1982 to 1996. He currently serves on the board of the Public Policy Institute of California.

Rosemary Metrailer with SacLEGAL board member Kathi Finnerty


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Vicki Jacobs is the Managing Attorney of the Voluntary Legal Services Program. She can be contacted at

VLSP 2.0


by Vicki Jacobs

long last, the Voluntary Legal Services Program is pleased to announce that our new website is up and ready for business. Please visit to see the latest news of the free legal services we provide to low income Sacramento area residents as well as volunteer opportunities available for Sacramento area legal professionals to do pro bono work. Given that our prior website had not been completely updated since 2003, our website is now compatible with mobile devices to make us more accessible to both prospective clients and volunteers. An updated volunteer application is ready for new volunteers or for existing volunteers who want to update their information with us. If you want to update your contact information, or express interest in a new type of pro bono


SACRAMENTO LAWYER | July/August 2017 |

opportunity, please do not hesitate to complete a new online application. Included, for example, on our new website is the opportunity to sign up for our newest project, our monthly Estate Planning Clinic. Our new website was launched in time for our participation in the 2017 Big Day of Giving, which is a social media-driven project of the Sacramento Region Community Foundation that raised over seven million dollars for 600 nonprofits in the Sacramento region in May. Thank you to those members of the Sacramento legal community who supported VLSP in our first time participating in the Big Day. Now, if VLSP can catch up with social media and have at least a Facebook page, we’ll be able to participate more fully in next year’s Big Day of Giving. Stay tuned!


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Public Law Section Hosts Discussion on the Ethical and Practical Considerations of Representing Clients Engaged in the Marijuana Industry by Alison Leary

Alison Leary is Deputy General Counsel at the League of California Cities. She can be contacted at


ast September, the Sacramento County Bar Association’s Public Law Section (PLS) co-hosted a lunch program with the Administrative and Environmental Law Sections regarding the medical cannabis regulations pending before the Bureau of Medical Cannabis Regulation at the California Department of Consumer Affairs and the Department of Food and Agriculture. During the program, the presenters fielded thought-provoking questions from attorneys wanting to know more about the ethical implications of advising clients on marijuana businesses given that marijuana remains a Schedule 1 drug under the Federal Controlled Substances Act. As a follow up to that discussion, and in light of the recent passage of the Adult Use of Marijuana Act, PLS hosted a lunch program on May 23, 2017 entitled, “Marijuana and the Conflicts between State and Federal Law: Ethical and Practical Considerations.” The program included presentations by legal professionals representing the gamut of stakeholders in the marijuana industry, and offered key insight into the challenges facing practitioners in this field. From the perspective of local government, Jonathan Hobbs, Elk Grove City Attorney, discussed whether it was possible to comply with both federal and state law. Hobbs explained, “There is currently a patchwork of fed-


Hanspeter Walter, Judge Kevin Culhane, and Jonathan Hobbs present and explain ethical conundrums in the practice of marijuana law

eral, state, and local laws in the area of marijuana regulation. And, the laws are not necessarily consistent. A person acting pursuant to state or local law

SACRAMENTO LAWYER | July/August 2017 |

can run the real risk of violating federal law. This presents quite a challenge for public and private practitioners in advising their clients.” Hobbs went on to


explore whether local government officials could face prosecution for aiding and abetting a violation of federal law in implementing local marijuana laws, and whether local governments are required to, or prohibited from, returning seized marijuana to its owner. Representing the view from the judiciary, Sacramento Superior Court Presiding Judge Kevin Culhane described the ethical quandary that judicial officers might find themselves in if they were to engage in the sale or manufacture of marijuana. Judge Culhane explained that the California Supreme Court’s Committee on Judicial Ethics Opinions (CJEO) recently offered clarity for judicial officers in CJEO Formal Opinion 2017-010. In that opinion, the CJEO advised that, in order to uphold their explicit obligation to comply with the law, judicial officers should not have any interest in an enterprise that involves the sale or manufacture of medical or recreational marijuana. Finally, Hanspeter Walter of Kronick Moskovitz Tiedemann & Girard delved into the emerging practice of representing members of the marijuana industry. Walter assessed whether the attorney-client privilege, which traditionally does not attach to communications between a lawyer and a client which would enable the client to commit a crime, applies to communications between attorneys and marijuana industry clients. He also identified the rules of professional conduct that attorneys must be aware of before advising clients in the marijuana industry. Although there is more to come in this fast-changing area of the law, the presenters offered much needed resources for attorneys considering engaging in this potentially lucrative industry.

For advertising opportunities please contact Deb Roberts at 916.564.3780 or | July/August 2017 | SACRAMENTO LAWYER


Editor’s Note: The following three articles share a theme – the potential and present effect of artificial intelligence (AI) technology on the practice of law. The articles emanate from the work of a team at the Anthony M. Kennedy Inn of Court. In May 2017, that team -- Landon Bailey, Bob Bale, Hon. Kevin Culhane, Kathi Finnerty, Dustin Johnson, Kathy Keeshen, Sylvia LaRosa, Kristina McMillen, Hon. Ken Mennemeier, Tiffany Tran, and Derek Ulmer -- presented a program titled: “Artificial Intelligence in the Courtroom: We Hear You Knockin’ But Should We Let You In?” The program consisted of three vignettes which introduced and provoked discussion of some of the ethical and professional issues that arise from the legal profession’s ever-increasing adoption of artificial intelligence technology. Inevitably, the program pondered the extent to which that technology may someday obviate the need to have humans perform the tasks now performed by attorneys, judges, and jurors.

The Anthony M. Kennedy Inn of Court was founded in 1988 and meets regularly at the University of the Pacific, McGeorge School of Law. The Inn is comprised of attorneys, judges, law professors, and law students who meet regularly to discuss issues of civility, ethics, and professionalism in the practice of law.  Since 1988, the Inn’s programs have received numerous national awards, including the national First Place program award issued by the American Inns of Court in 2014, 2015, and 2016. More information about the Kennedy Inn of Court can be found at In September 2017, the Inn will celebrate the 30th anniversary of its founding.


Landon Bailey is Senior Counsel at Hanson Bridgett, LLP. He can be contacted at

The Future Is Now

Artificial Intelligence in Legal Practice by Landon Bailey


most lawyers, the concept of “artificial intelligence” or “AI” seems foreign – something constrained largely to the realm of science fiction, and certainly not a component of the practice of law today. This perception no longer reflects reality. Artificial intelligence technology is not just the province of future generations; it has entered the realm of legal practice, and is disregarded as futuristic fantasy at the practitioner’s peril. The time has already come to begin giving attention to new innovation in the field of artificial intelligence and to consider how it may impact our respective practices and professional lives. AI is broadly defined as the science and engineering of creating computer programs and machines capable of independent-


SACRAMENTO LAWYER | July/August 2017 |

ly performing tasks normally requiring human intelligence. The field emerged as an academic discipline in the 1950’s. From its inception over 60 years ago, the purpose and expectation of AI innovation has always been to create machines that not only perform traditionally “human” tasks, but improve upon human performance with instantaneous recall of massive amounts of data and superior precision well beyond the human brain’s capabilities. With exponential advancement in computer technology over the past two decades, theory and aspiration in AI has given way to tangible modern reality. High profile examples of AI technology familiar to many include Deep Blue, the chess computer that defeated then-world chess champion Garry Kasparov in 1997, and IBM’s Watson,

FEATURE ARTICLE the AI “QA” (question answering) system that defeated Jeopar- ics platform and related applications, Lex Machina can assist dy champions Ken Jennings and Brad Rutter in 2011. In 2015, corporate counsel in determining how likely a judge is to grant AlphaGo, an artificial intelligence system powered by Google’s or deny a particular motion, estimate the approximate length DeepMind technology, defeated legendary player Lee Se-dol at of a particular litigation matter, and determine how likely a the abstract Chinese strategy game Go – and, this year, Alpha- particular judge is to find in his client’s favor. Lex Machina Go defeated reigning Go world champion Ke Jie. Tech-savvy even provides data on opposing parties and attorneys, informcompanies have begun integrating highly visible, user friendly ing counsel in key strategic decisions. Lex Machina initially AI systems, such as Apple’s Siri and Amazon’s Alexa, into main- focused on intellectual property litigation, but is expanding stream electronic products, enabling smart phones and other to provide similar sophisticated data collection and analytics gadgets to respond to certain natural language commands, an- for securities and antitrust litigation. Lex Machina is already swer questions, and respond to other verbal prompts. These in use at law firms and companies across America, and is not applications, while impressive, only scratch the surface of what alone in the AI-powered legal analytics marketplace. Competartificial intelligence technology can do. ing products exist, marketed by companies like Premonition, Given the increased availability of products integrating which provides AI solutions for legal professionals, as well as a AI technologies in recent years, diverse array of other fields, init should be no surprise that cluding insurance, finance, and COMPAS applied (and challenged) products marketed specifically lobbying. to law firms and legal profesAI technologies are not In Loomis v. Wisconsin, now before the US Susionals have emerged. One such just for large scale, high stakes, preme Court on Loomis’ petition for writ of product is called ROSS, and is multi-million dollar litigation certiorari, a Wisconsin court sentenced Loomalready in use at many promimatters. Another example of is to six years in prison based in part on a renent law firms, in-house legal AI’s impact on the legal world port generated by a computer program called departments, and law schools. is COMPAS, a computerized acCOMPAS, which uses proprietary software to Like the machine that beat Ken tuarial risk assessment system forecast the risk of recidivism. Having been deJennings at Jeopardy, ROSS is that uses both static and dynied access to the program’s secret algorithms, powered by IBM’s Watson technamic data relating to criminal Loomis argued the court’s use of the COMPAS nology. ROSS, marketed as “the offenders to assess their risk of report violated due process. The Wisconsin world’s first artificially intellirecidivism, violent conduct, and gent attorney,” draws upon a other behaviors, and to predict Supreme Court rejected that argument and comprehensive and constantly outcomes. This technology upheld the sentence, prompting Loomis’ petiupdated database of legal auis already in use by some state tion to the US Supreme Court. The cert. petithorities, and responds to legal courts and departments of cortion is on the Court’s June 22 calendar. questions presented in natural rections to aid in critical decilanguage. ROSS performs legal sions like sentencing, bail, case research tasks with speed, effiplans, and allocation of rehabiliciency, and comprehensiveness, eliminating many hours nor- tation and supervision resources. mally spent by lawyers on information retrieval and analysis, Rule 1.1 of ABA Model Rules of Professional Conduct inand enabling those lawyers to focus on tasks involving creativ- structs that “lawyers should keep abreast of changes in the ity and advocacy that ROSS is not capable of performing – at law and its practice, including the benefits and risks associatleast, not yet. ed with relevant technology.” Consistent with this guidance, LexisNexis also seeks to be seen as a leader in early AI prudent legal counsel should be aware of AI technologies as technologies directed at legal professionals, and boasts one of they develop, learn their benefits and their risks, and considthe most sophisticated legal predictive analytics tools ever cre- er whether such technologies might enhance their practices ated in Lex Machina. Lex Machina employs natural language today. AI has arrived in the legal field, and just as electronic processing and machine learning, automatically mines a vast discovery has revolutionized the practice of law over the past database of litigation data, provides relevant data-driven re- two decades, we can expect AI’s expansion and development ports, and predicts outcomes based on demonstrated tenden- to fundamentally change the way we provide services to our cies of particular judges and lawyers. Through its legal analyt- clients over the next 20 years. | July/August 2017 | SACRAMENTO LAWYER



Imagining a Role for Artificially Intelligent Juries by Judge Kenneth C. Mennemeier, Jr. and Kelly A. Mennemeier


ould artificial intelligence (“AI”) be applied to the fact-finding responsibility traditionally given to juries? The possibility invites reflection on what would be lost, and what could be gained, if our justice system moved away from using juries comprised of human beings and instead used computerized “juries” applying artificial intelligence. This essay shares some reflections. Our jury system is subject to a number of criticisms, which may give rise to temptation – and perhaps even demands – to use this new technology to achieve better results and greater efficiency. Indeed, critics ascribe several flaws to jurors, jury performance, and the jury trial system that AI may be able to correct. For instance, some critics argue that jurors bring implicit biases into their service and that those biases infect their analysis. Bias in favor of law enforcement might make it difficult for jurors to fairly judge officers accused of brutality and excessive force. Bias against a person of color or a person with uncertain immigration status might impair a juror’s capacity to view evidence impartially. Other critics insist that juries, comprised of people selected from voter and/ or DMV rolls, lack the capacity to understand complex matters, such as complicated financial instruments (e.g., interest-rate swap futures contracts) or sophisticated technological issues (e.g., patent law disputes). Others complain that, even in


straightforward matters within the comprehension of all, the jury-specific parts of the process (such as voir dire, jury selection, jury instructions, and jury deliberations) add untold hours to a trial and, with it, substantial and perhaps avoidable expense. Similarly, some observe that lengthy trials may result in fatigue, leading to lapses in jurors’ attention. Still others complain that jurors are vulnera-

Our jury system is subject to a number of criticisms, which may give rise to temptation – and perhaps even demands – to use this new technology to achieve better results and greater efficiency

ble to having their passions enflamed by the skillful telling of a sympathetic story, thus yielding runaway verdicts and unjust awards. And then, for better or worse, there is the possibility of jury nullification – i.e., a jury refusing to adhere to a law with which the jurors disagree. It is not hard to imagine computer programs obviating most, if not all, of these concerns. Use of a computerized “jury” programmed with AI, including a compilation of all statutes and case law,

SACRAMENTO LAWYER | July/August 2017 |

Kenneth C. Mennemeier, Jr. is a judge on the Sacramento County Superior Court. He can be contacted at Kelly A. Mennemeier is a 2016 graduate of Northwestern University Law School. She currently serves as a law clerk for Justice Peter J. Maassen of the Alaska Supreme Court. She can be contacted at

would surely shorten the trial process by eliminating the time spent in voir dire, jury instructions, and jury deliberations. This could generate huge efficiencies and corresponding economic savings. Using a programmed AI “jury” would also address the defense lawyer’s concern about a jury becoming impassioned or enraged by the effective telling of a plaintiff’s story, and an AI “jury” would never fail to absorb and assess any evidence due to fatigue or boredom. Using an AI “jury” would similarly address the concern about implicit human biases, as a computerized fact-finder could be programmed to be color-blind and otherwise oblivious to the varied facts and circumstances that give rise to bias. And, a computerized fact-finder would always remain faithful to the law, eliminating the risk of (or, for some

FEATURE ARTICLE criminal defendants, any hope for) jury nullification. At first blush, then, just as the prospect of driverless vehicles holds out a promise of safer roadways, so too might the prospect of artificially-intelligent computerized “juries” hold out a promise of more consistent, fair, and just verdicts. But before jumping to conclusions, it is important to pause to consider the history and core values underlying our jury system. In criminal law, the importance of the constitutional right to a jury trial is highlighted by, among other things, the simple fact that it is the only right that appears twice in the United States Constitution (in both Article III and the Sixth Amendment). In civil law, the right to trial by jury is enshrined in the Seventh Amendment. Moreover, the constitution of every state protects the right to a jury trial, at least in criminal cases.1 The California Constitution recognizes trial by jury in both civil and criminal cases as an “inviolate right.”2 It is also useful to reflect on the core values served by our jury system. For one, a jury of 12 (or six in some civil cases in federal

court3) is meant to represent the “community.”4 Comprised as they are from people randomly selected from DMV and voter registration rolls, juries are drawn from a cross-section of the community and, as a body, become the “voice” of the community.5

Whatever AI’s promise may be for other aspects of the legal profession, AI programming will never completely obviate the desire for a jury comprised of real people chosen from the community. Perhaps more important, the jury is a critical component in a system of government built on a separation-of-powers premise. In a system with three branches of government, juries stand apart from each branch. Each jury serves for a limited period of time. Each serves a role separate from the legislative bodies that make the law, the executive (and prosecutorial) authorities who enforce the law, and the judicial officers who interpret the law and oversee the courtroom. The jury represents an authority detached from government. That detachment honors the distrust the nation’s founders had for a system in which a centralized governmental authority serves as both prosecutor and judge.6 The virtues of a human jury, then, suggest a limit on the potential for AI “juries.” Computerized, programmed, and artificially intelligent finders-of-fact might someday address and obviate some or all of the criticisms cast upon the jury process, but it is difficult to envision how they could serve the core values juries presently serve. Specifically, it is hard to imagine a computerized fact-find-

er ever being perceived as a jury “of one’s peers.” It is even harder to imagine how an AI jury, programmed by hidden, anonymous forces, might ever be viewed as separate from centralized governmental authority. All of this suggests that, whatever AI’s promise may be for other aspects of the legal profession, AI programming will never completely obviate the desire for a jury comprised of real people chosen from the community. This is not to say there is no future for AI juries. The use of computerized, programmed finders-of-fact could shorten trials, delivering value to those who demand a trial but seek a more time-efficient and economical process. And, if AI “juries” reduce or eliminate hidden biases and the risk of impassioned jurors, and/or demonstrate the ability to navigate complex fields of fact, technology, and law, they could prove an appealing dispute resolution option in certain types of cases. We envision an important role for AI fact-finders in the future. But, because artificially intelligent finders-of-fact can never serve the core values that human juries serve, we predict that artificial intelligence will never fully supplant the need and desire for human juries.

1 See Duncan v. Louisiana, 391 U.S. 145, 153 (1968). 2

Cal. Const., art. I, § 16.


Fed. R. Civ. P. 48.


Smith v. Texas, 311 U.S. 128, 165 (1940) (“It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.”).


BMW of North America, Inc. v. Gore, 517 U.S. 559, 600 (1996) (describing the jury as “the voice of the community”); Wainwright v. Witt, 469 U.S. 412, 458 (1985) (same).

6 See Duncan v. Louisiana, 391 U.S. at 155-56. | July/August 2017 | SACRAMENTO LAWYER



From the Days of Orwellian Fears, to the Internet of Things, and Now to AI….

Kathleen Finnerty is the principal of Finnerty Law Offices Inc. She can be contacted at William Kellermann is Electronic Discovery & Information Governance Counsel at Hanson Bridgett, LLP. He can be contacted at Derek Ulmer is a 2017 graduate of Pacific McGeorge. He can be contacted at

by Kathleen Finnerty, William Kellerman and Derek Ulmer Editor’s Note: Kathleen Finnerty, a business litigator and counselor in practice for 25 years, William (“Bil”) Kellermann, a technology litigator and counselor for the past two decades, and Derek Ulmer, a 2017 graduate of Pacific McGeorge, share their views about Artificial Intelligence (AI) – how it is already affecting the practice of law and what to expect in the future. After discussing how law practice has changed (a lot) since they started practicing decades ago, Kathi and Bil turned to Derek’s questions. Ulmer: Let’s start with some examples of how AI is already deployed. Finnerty: Both ROSS (by ROSS Intelligence) and CARA (by Casetext) are “smart” legal research tools, meaning they get smarter with experiential data. For example, counsel can drag and drop a brief into CARA and within seconds have all relevant case law, both good and bad, in a folder for review, with insights on the most relevant cases, including those previously cited by the lawyers in other cases. Other AI can be used to review standard contracts, in milliseconds, to identify deviations from previously used forms. AI is also being used for dispute resolution. For example, eBay has a “Resolution Center” available to resolve disputes between buyers and sellers which are typically too small to take to court. EBay reports that – win or lose – users are pleased to have a means to address their grievances.  Kellermann: Clients now have access to AI programs that help them identify a suitable lawyer in a community where they expect to litigate. To identify an attorney with a particular expertise, AI


systems (such as Sky Analytics) mine data from on-line sources, such as Pacer and LinkedIn, to paint a compelling picture of why a client should hire a specific lawyer, regardless of firm size or location. Well positioned local firms that optimize their on-line presence, just as marketers optimize search engine hits, can now “fight above their weight.”  Ulmer: In broad terms, with automation soon performing many of the routine tasks involved in practicing law, what skill sets will attorneys – especially younger attorneys – need in the future to remain relevant and to provide value to their employers and clients?  Finnerty: Lawyers will need to know something about how AI operates. Within our varied law practice settings, we should know enough both to explain to our colleagues how AI operates and to check the validity of our AI’s work-product. We will also need to understand enough to defend our AI work-product when it gets challenged, and enough to help devise strategies to challenge our opponents’ AI work-product. That means we will need to know something about how certain AI systems are pro-

SACRAMENTO LAWYER | July/August 2017 |

grammed, what assumptions are built into their operation, and whether any of those assumptions can be challenged.    Kellermann: Lawyers, and especially litigators, will need to have a basic understanding of statistics to know if a system’s output makes sense in light of the input. With systems using psychometrics to influence choices, all lawyers must understand newly developed theories in cognitive science – when, for example, an argument or line of questioning is based on triggering confirmation bias. This skill will be necessary to exercise discretion and judgment in direct advocacy, in challenging the argument of the opposition, and in challenging the inputs or outputs of an AI system.  Ulmer: Recent news stories speculate AI will soon perform the lesser tasks historically performed by junior attorneys. As a recent graduate, should I be worried?   Kellermann: Worried? No. Those who understand, deploy, and master these new tools will always have a valuable, marketable skillset. Be curious – learn how to use new tools and, at a basic lev-

FEATURE ARTICLE el, how those tools work (including both their strengths and limitations). When dealing with AI outputs, be a skeptic in a scientific way – trust but verify. These new technologies can be daunting because they promise to change how we practice. But they are also exciting for the efficiencies and enhanced results they will provide for clients.        Finnerty: The days of young lawyers pouring over volumes of depositions and dredging through thousands of documents are waning. Young lawyers are increasingly tasked with overseeing the use of technology, such as assisting in designing search criteria at the front end and then validating the AI program’s work-product at the back end, as opposed to conducting granular document-by-document reviews. What will always be necessary is critical think-

ing to challenge AI’s results, and creative thinking to develop and achieve new solutions. The deployment of this technology, combined with corporate clients’ aversion to paying for young lawyers’ time (and training), will surely impact how young lawyers will obtain legal training and mentoring.   Kellermann: Andrew McAfee at MIT studies the effect of AI on society. He discusses the term “HiPPO” - Highest Paid Person’s Opinion. His studies reveal that a HiPPO’s decisions are correct only 8 percent of the time, that AI alone is correct better than half the time, but most importantly, a HiPPO decision supported by predictive data is correct almost all the time. AI systems are a powerful new tool, but their deployment will still require the same human skills lawyers have always provided: judgment, dis-

cretion, advocacy, skepticism, creativity. While a computer program may identify all the relevant documents better than people, it will still take human judgment to validate the machine’s work-product, or to find the 200-300 “hot” documents necessary to win a summary judgment motion or at trial.

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Robyn K. Riedel is a Deputy District Attorney in San Joaquin County and heads the OPD dinner committee. She can be contacted at

2017 Annual Operation Protect and Defend Law Day Dinner Celebration by Robyn K. Riedel

Since 2001, Operation Protect & Defend (OPD) has hosted the annual law day dinner, honoring high school seniors in Sacramento for their exceptional writing and artistic skills.

Congresswoman Doris Matsui presents the keynote speech


ongresswoman Doris Matsui inspired everyone in attendance at another successful annual Law Day Dinner this year; the Congresswoman was the keynote speaker at the Sheraton Grand in downtown Sacramento. The annual Law Day Dinner represented a culmination of Operation Protect and Defend’s year-long efforts, while providing students a platform to showcase their artistic talents and connect with

judges and attorneys from around the area. Many will remember the insightful and motivating message from Matsui about her father’s trials and tribulations during the Japanese internment after Executive Order 9066 was signed. Recalling her father’s experiences in an internment camp, she told the story of his efforts to make a flower grow in the dry desert. After constant patience and determination, a flower did grow

Co-chairs of the Modern Masters of America, CarmenNicole Cox and Emily Patterson, presenting Jonathan Rodriguez of Rio Americano High School with the Modern Masters of America Honorable Mention Award


and eventually blossom. The flower became a symbol of hope for the community at the camp, and Matsui encouraged all in attendance not to lose hope during this uncertain time. OPD’s Executive Chair, Kelley Lincoln, provided warm opening remarks. The Master of Ceremonies, Magistrate Judge Allison Claire, eloquently introduced the dinner’s keynote speaker and provided dinner attendees with detailed insights into each of the student essay awardees. Carmen-Nicole Cox, Director of Modern Masters of America contest, and Emily Patterson, co-chair for the Modern Masters of America contest, presented the Modern Masters of America awards to the student contest awardees. Natomas Pacific Pathways Prep student Ajit Rakhi shared his slam poetry performance piece entitled “History Repeats Itself.” Judge Frank C. Damrell Jr. (Ret.), founder of OPD, provided closing remarks.

Magistrate Judge Allison Claire gives the Teacher’s Choice Award to co-winner Isa Sheikh, with co-winner Isabelle Lynch

SACRAMENTO LAWYER | July/August 2017 |

“The Wall of Broken Families” by Sarah Hunt of Luther Burbank High School, Modern Masters of America Gold Award Winner

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Golf Tournament


EisnerAmper SHIRT SPONSOR: University of the Pacific, McGeorge School of Law HAT SPONSOR: Jon Hutchinson/Western Health Advantage HOLE-IN-ONE SPONSOR Nissan of Sacramento


Another Successful Year

Thank You To Our Sponsors

SPIRITS HOLE SPONSOR: Esquire Deposition Solutions, LLC First Legal Network Smart Start U.S. Legal Support, Inc.

PUTTING GREEN SPONSOR: Northern California Collection Service Inc. Voluntary Legal Services Program – Vicki Jacobs

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DRIVING RANGE SPONSOR: Northern California Collection Service Inc.

HOLE SPONSOR: Carlson & Gevelinger Northern California Collection Service Inc. CourtCall Radoslovich Shapiro PC DigiStream Investigations Inc. SCBA Alternative Dispute Downey Brand Resolution Section Dunnigan Realtors SCBA Real Property Section Lincoln Law School Timmons Owen Messing Adam & Jasmine LLP Jansen & Tichy, Inc. Merrill Lynch


Lauren Sorokolit is the Barristers’ Media Chair and Associate General Counsel at Molina Healthcare, Inc. She can be contacted at Lauren.Sorokolit@

Barristers’ Club Update Cannabis in California: A Review of the Regulations and Regulatory Process In April, Barristers’ Club members converged at The Park Tower Conference Center to attend a new Barristers’ seminar focusing on regulation of cannabis in California. This fascinating seminar featured Tamara Colson, Assistant Chief Counsel, Bureau of Medical Marijuana; Crystal D’Souza, Attorney, Department of Food and Agriculture; Steve Itagaki, Attorney, City of Sacramento; and Joe Devlin, Chief of Cannabis Policy & Enforcement, City of Sacramento. Each speaker brought a unique perspective to the regulation of medical and recreational cannabis in California. Attendees gained important insight into the cannabis regulatory landscape to date and what to expect in the future. The Barristers’ Club would like to thank the speakers for this memorable seminar.

Barristers’ Division List Serve Please be aware that the existing Barristers’ gmail list serve and the “” email address are being phased out and merged into the new Sacramento County Bar Association Barristers’ division list serve administered by Yahoo Groups. In order to continue to receive information about upcoming Barristers’ social events and MCLE seminars, please send an email with your current contact information to If you have any questions, please contact

by Lauren Sorokolit

William Thompson at or 916-564-3760. Watch the Calendar for Upcoming Events The Barristers’ Club has an array of programming planned for the upcoming months including the 25th Annual Summer Associates Reception scheduled for July 20, 2017 at the Park Ultra Lounge. For more information regarding sponsorship opportunities or event details for the Annual Summer Associates Reception, please e-mail Katie Nystrom at Katie.

Summary Judgment Seminar In May, Barristers’ Club hosted its annual Motion for Summary Judgment Seminar at Downey Brand, LLP. Speaking at the seminar were Jason Schaff of Flesher Schaff & Schroeder, Inc. and Meghan Baker of Downey Brand, LLP. Both presenters are experienced practitioners with a wealth of hard-earned knowledge regarding the ins-and-outs of summary judgment practice. Each presenter provided practical examples and thoughtful advice regarding how to succeed in bringing or defending a motion for summary judgment. Thanks to these speakers for their insight and guidance on this important topic. | July/August 2017 | SACRAMENTO LAWYER


Aaron Johnson is an attorney at


Tax Section Hosts 4th Annual Tax Symposium by Aaron Johnson


Tax Section of the Sacramento County Bar Association hosted the 4th Annual Tax Symposium on May 17 at the Harper Alumni Center at Sacramento State. This event is held each year to bring together local tax practitioners from the private and public sectors to discuss the latest tax laws, cases, and issues. This year, local practitioners gave excellent presentations on a variety of issues. Betty Williams (Law Office of Williams & Associates PC) provided advice on tax audits. Belan Wagner (Wagner Kirkman Blaine Klomparens & Youmans, LLP) discussed the tax consequences to partnership terminations, mergers, and divisions. Carley

Roberts (Eversheds Sutherland), and Fred Campbell-Craven (Franchise Tax Board) presented current hot topics in the state and local tax arena. Executive Officer Selvi Stanislaus (Franchise Tax Board) was the special guest lunch speaker and talked about the state of the Franchise Tax Board. Donna Courville (Boutin Jones Inc.) and Shirlee Tully (Sacramento Region Community Foundation) provided advice on charitable giving. Ciro Immordino (Franchise Tax Board) and Bill Webster (Webster Law Firm) presented viewpoints on 1031 exchanges. Jeff Greybill (State Board of Equalization), Fred Campbell-Craven (Franchise Tax Board), and Adam Susz (Franchise

Tax Section committee members and organizers of the Tax Symposium: Brian Bowen, Jaclyn Zumaeta, Aaron Johnson, Kathleen Donelan-Maher, & Ciro Immordino


SACRAMENTO LAWYER | July/August 2017 |

Wilke, Fleury, Hoffelt, Gould & Birney, LLP and the 2017 Vice Chair of the Tax Section. He can be contacted at

Tax Board) gave current updates on state tax litigation cases. The Tax Symposium was attended by local tax attorneys, accountants, and government employees from the Internal Revenue Service, Franchise Tax Board, and Board of Equalization. The all-day Symposium concluded with a reception where the attendees were able to mix and network. For information on next year’s Tax Symposium, check the SCBA webpage ( at the beginning of 2018.

The SCBA Turns 99 Join the Planning for the Centennial, i.e.,

HELP WANTED! 1. Celebration 2. The Centennial Year Issue of Sacramento Lawyer, aka The Book

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Steve Duverney is a member of the


Sacramento Law Foundation Hosts Big Day of Giving

Sacramento Legal Foundation board of directors and an attorney at Benbrook Law Group. He can be contacted at

by Steve Duvernay


May 4, the Sacramento Law Foundation held its annual Big Day of Giving celebration at the midtown offices of Gavrilov & Brooks. Each year, SLF provides grants to organizations in the Sacramento region that improve the administration of justice, enhance public confidence in the legal profession, cultivate understanding of, and respect for, the rule of law, and support law-related public services. At this year’s event, SLF recognized its 2017 grant recipients. The foundation awarded $5,000 to the California Rural Legal Assistance Foundation, which will provide partial funding for CRLAF’s Rapid Response Family Preparedness Project. This program provides “know your rights” information and pro per assistance to immigrant and mixed status families to ensure their children are legally protected if their primary caregiver is detained by immigration authorities. SLF also awarded $1,000 to Operation Protect and Defend to support its annual Law Day festivities, honoring students from local high schools for their achievements in OPD’s classroom dialogues and Story of America Essay Contest and Modern Masters of Art Contest.

SLF board members and representatives from the California Rural Legal Assistance Foundation and Operation Protect and Defend celebrate the Big Day of Giving

To volunteer, make a contribution, or for more information about the SLF, visit its website at:


SACRAMENTO LAWYER | July/August 2017 |



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Hiren Patel is Chief Counsel at


the Department of Developmental Services. He can be contacted at Hiren. Vishali Singal is an attorney with CalPers. She can be contacted at

Meet the South Asian Bar Association of Sacramento by Hiren Patel and Vishali Singal


2008, lawyers from the greater Sacramento region formed the South Asian Bar Association (SABA) of Sacramento. SABA of Sacramento is the 25th chapter of the South Asian Bar Association of North America, which has chapters throughout the United States and Canada. SABA of Sacramento promotes the professional advancement of attorneys and law students of South Asian descent and helps serve the legal needs of the South Asian community in the greater Sacramento region. The term South Asian includes people who originate from India, Pakistan, Bangladesh, Nepal, Sri Lanka, and other countries in Southern Asia. Every year, SABA of Sacramento hosts a number of exciting events

where attorneys and law students can mingle, network, and contribute to the local community. For example, SABA of Sacramento has partnered with the Sacramento Sikh Coalition for a National Day of Seva (selfless community service) to remember and honor the victims and survivors of the Oak Creek and Orlando tragedies. Other recent community activities have ranged from refurbishing a local park to painting at Habitat for Humanity. Our signature diversity law student reception, hosted for the last nine years by SABA of Sacramento co-founder and now-Sacramento County Superior Court Commissioner Shama Mesiwala, invites local and regional law students, including students from UC Davis School of Law, Pacific McGeorge

School of Law, and Lincoln Law School, to meet local judges and attorneys and promote diversity in the legal community. This year marks the 10th Annual Diversity Law Student Reception and features Chief Justice of California Tani Cantil-Sakauye as the guest of honor. The event will take place in Davis on September 9, 2017. In honor of its anniversary, SABA of Sacramento also hosts an annual celebration for its members and the larger legal community. If you are interested in learning more about these events or other aspects of SABA of Sacramento, including how to join this organization, please email us at We can sign you up for our newsletter and send you membership information.


EVENT CENTER We Have Space for You! Tech-ready buffet luncheon or classroom space is available. For more information call 916-564-3780


SACRAMENTO LAWYER | July/August 2017 |

The South Asian Bar Association (SABA) of Sacramento proudly invites you to:

The 10th Annual Diversity Law Student Reception

Meet local judges and attorneys and learn about practicing law in our region. Casual attire, everyone is welcome! This event is free of charge.


Please RSVP to Shama by September 5th at & include your name, title and employer (or your law school & year in school). You will receive a confirmation email with the address of the reception. Thank you to our sponsors: | July/August 2017 | SACRAMENTO LAWYER



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SACRAMENTO LAWYER | July/August 2017 |

Women Lawyers of Sacramento Presents the 24th Annual



Join colleagues and friends for an exciting evening including local artists, hosted food and wine, and silent auction. Proceeds fund grants to local charitable organizations and scholarships for law students. PLATINUM SPONSORS


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SCBA Annual Meeting Honoring Distinguished Attorney of the Year Justice Arthur Scotland Installing SCBA Officers & Directors Recognizing 100% Firms

DATE Monday December 15, 2014 MCLE Prior to Annual Meeting FREE for SCBA Members $100 for Non-Members 1 Hour Ethics - Topic: “Attorney Fees, Practically and Ethically”

Speaker: Kenneth Bacon of Mastagni Holstedt

TIME 11:30 Check in 12:00 Lunch PLACE Sheraton Grand 1230 J Street


Keynote Speaker: Chief Justice of California

Tani Cantil-Sakauye Ticket information: calendar, $45 for SCBA members, $65 for non-members. After November 23rd, ticket prices increase by $5 RSVP to or call (916) 564-3780. Send checks payable: SCBA, 1329 Howe Ave #100, Sacramento, CA 95825

Sacramento Lawyer Magazine JULY/AUGUST 2017  

Sacramento County Bar Association Lawyer Magazine

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