Meeting Notes: 82nd Annual Meeting of the State Bar of California: Sept. 11-13, 2009

Table of Contents  Seminar 1: Copyright & the Internet  ................................................................................................................. 2 Seminar 2: Strategies to Secure & Maintain Prof’l Liability Insurance................................................................ 11 Seminar 3: Going Solo in Tough Economic Times  ........................................................................................... 15 Seminar 4: Undocumented Aliens; Issues Presented in Representing Undocumented Aliens ................................ 19 Seminar 5: Conservation Easements 101 .......................................................................................................... 23 Seminar 6: Real Property Foreclosures in a Nutshell ......................................................................................... 25 Seminar 7: Deuce-A-Rama: Steering Clear in DUI Representations & Practices, Part I ........................................ 31 Seminar 8: Deuce-A-Rama: Steering Clear in DUI Representations & Practices, Part II ...................................... 39 

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Seminar 1: Copyright & the Internet, Cynthia A. Tune, Pillsbury Winthrop Shaw Pittman LLP (Sept. 12, 2009).

• IP Section – Recent Publishing Industry developments (call in conference) • Copyright: automatically, as soon as work is “fixed” in “tangible means of expression”

o Fixation – in machine, computer If speech is not written, recorded, videotaped, no copyright

o Original Can’t be copy Some “modicum” of creativity

o Type: expression, not ideas or facts, but expression • Exclusive rights

o Copy o Adapt, derivative o Distribute o Public performance o Public display o 1976 amendments – moral rights, digital performance rights

Attribution • This is a right against misattribution – can’t put your name to work

not responsible for Integration

• Infringement: unauthorized use in a manner that violates one of the copyright owner’s exclusive rights

o Direct infringement – someone copied website, now theirs o Indirect infringement – where most internet activity is (websites provide tools for

USERS to engage in infringement) – should website be liable for content of users) Contributory

o Sony – non-infringing uses Sony will not apply if:

o There is intent to infringe or to distribute

o Actual knowledge, can take measures, and continue to provide access.

Vicarious – did you have the ability to control? Did website gain a benefit. • Control requires: legal right to stop restrict the direct infringement,

and (2) the ability to do so • Derives direct financial benefit from indirect control

Inducement • Elements (Grokster):

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o Internal communications and business plans confirming a primary purpose of the software was to download copyrighted material

o Promotional materials advertising Grokster as a new Napster

o Not only a lack of policing efforts, but affirmative blocking of IP addresses of entities likely monitoring for infringing activities

• When talking with clients about new ideas: you’re infringing, let’s make it lawful

• DMCA Section 512 o Safe harbor to protect internet service providers from direct or secondary liability

for copyright infringement by their customers Can apply to

• ISPs • Email providers • Search engines • Web hosting services • Chat rooms • Bulletin board systems, etc.

o Key is to be a “passive conduit” – In re Aimster 252 F. Supp 2d 634 – if users moving things through your site

If you do anything to facilitate conduct, invite, enable, review, edit • You may be taken out

o Must also Specify agent for service of notices

• File in copyright offices Have and implement a reasonable infringer termination policy

• Service provider not required to monitor its services or affirmatively to seek out infringing activity

o Take Down Notices Enable copyright owners to get infringing material off line. Must send a

written notice containing specified elements. But be careful! Consider:

• Bona fide good faith belief of infringement • Any person who sends a notice knowingly that the infringement

claims are false, may be liable for damages (OPG v. Diebold) o In Diebold, motivation was to get sensitive company

documents off internet • Possible public relations outcomes (Lentz)

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o Today, C&D letter can get posted on internet o Can backfire in Lentz case (see infra)

• Must specify exact files • Probably 10 days to counter-notice – must put back up unless files

complaint in court for declaratory relief • In-Line Linking

o Allows users to incorporate content from another webpage into the contents of the linking page

o In-line linking may not result in direct liability where the service provider does not story the images, but rather merely “instructs”

• Framing o Linking to someone else’s site, but content comes into “frame” – looks like your

content o May not result in direct liability where the service provider does not store the

image itself (Perfect 10even if framing confuses o Other issues though

• Deep Linking o Problem: site you’re linking to has rights, motivations (revenue from hits to

homepage, and you’re depriving of revenue) o May not want taken out of context o URLs are comparable to a street address, and are not copyrightable o When deep linking, linking site should clearly indicate

• Thumbnails: o Even though thumbnails use the entire image, use of thumbnail images can still

constitute fair use given the purpose of a search engine Although it is commercial, search engine not using to promote itself E3ven where thumbnails can be downloaded to cell phones, harming

potential cell phone image market, may make claim (Perfect 10 Case) o Google cached image search, e.g.,

• Distributing – Showing liability o Unauthorized copyright of a copyrighted work, including it in the library’s catalog

system, and making it available to the public is sufficient for distribution. Avoiding liability because of the lack of library records on who used the work would have allowed the library to unjustly profit from its omission. Hotaling 118 F.3d 199 4th Cir 1997

o Majority merely making available insufficient (Atlantic) o But making available combined with other circumstance evidence could in theory

support an inference of distribution. o Content downloaded by a hired investigator authorized to do so by copyright

owner constitutes distribution (Atlantic)

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• Streaming o Allows recipient to play – no copy made to HD – are ephemeral copies made to

buffer o For public performance, a file “must be transmitted in a manner designed for

contemporaneous perception”) (UIS ASCAP SDNY) Streaming public most of time – if non-interactive – still open issue

• Downloading o Downloading is not public performance, it is reproduction (ASCAP) o Even if piecemeal download, not public performance o Given appropriate technology, download could be be both a reproduction and

public performance If download while also viewing Performance – any performance outside small circle of family and friends Public at large, large group able to access at same time Must license, pay royalties

• Virtual worlds o Marvel claimed contributory and vicarious liability against the creators of the

MMOG City of Heroes (Marvel Enters, Inc. 2005 U.S. Dist. LEXIS 8448 o Players create own superhero characters by combining various attributes, super

powers, characteristics o Note: game did not change in any way – entered into some kind of license

agreement o World of Warcraft (“WOW”)

Creators are claiming vicarious infringement and violations of DMCA anti-circumvention provisions (can’t sell device or technology that circumvents a security) (MDY Industries v. Blizzard 2009 U.S. Dist. LEXIS 38260 (D. Ariz.)

• Created autopilot without participation – warden was designed to prevent this though. Glider could circumvent Warden.

Vicarious liability claim • Glider users directly infringing WOW copyright • MDY directly benefits financials from the players activities • [ ]

Was infringing conduct o Second Life

Lawsuits have been filed over unauthorized copying of virtual products by other players in the virtual world

• Eros, LLC v. Robert Leatherwood and John Does 1-10, Case No. 8:2007cv00158

o Created x-rated bed – made millions of dollars

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o Lost, settled Eros et al. v. Simon Case no 1:2007cv04447 (E.D.N.Y. 2007) – lost No real life commerce yet. There is advertising inside – brick and mortar businesses “Ad-Griefing” – forced property owner to sell his land or buy neighboring

land by placing ugly and annoying advertisements in his way • Jan. 2008, SL player launched campaign on Flickr to draw

attention to the problem o Ad owner filed successful DMCA take down notice with

Flickr alleging infringement! • Non-Text search results

o Search results can include sound files or video files When user clicks does a public performance result? Is there indirect infringement

• Seeqpod example • When get search result, plays it for you – doesn’t copy it – but just

links through to site where found o Recall: thumbnail fair use in certain circumstances o Technology POV: no public performance on website, on other website, no copy,

never resides on our server. Just search results. Just like Google. Get safe harbor b/c passive search engine.

o Other argument: direct infringement – when you click, public performance on this site, doesn’t matter where actually plays. If watching this website, it’s playing on this website.

o Could also be indirect (Grokster): providing means for infringement o Seeqpod v. Warner Music – Seeqpod filed for bankruptcy b4 case decided. o YouTube – Thumbnail –LOTS OF ISSUES (note: about comments, too!)

Could write article about one YouTube experience • Video on Internet

o Viacom sued YouTube and Google seeking at least $1 Billion in damages Alleges using technology to “willfully infringe copyrights on a huge

scale.” More than 150,000 unauthorized clips viewed 1.5 billion times. Approx. 85% YouTube content was infringing

o General issues presented by user generated content Consider Lenz v/ Universal Music Corp. 572 F. Supp. 2d 1150 (N.D. Cal.

2008) • Kid rocking to Prince music • Public performance requires license and royalties unless fair use • Was taken down – lawyers for Electronic Frontier Foundation

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• Had reposted – filed complaint for declaratory relief • No decision yet • Public relations problem for Universal

o You’re making a federal case out of this?? o Bad facts make bad law

• Ringtones/Ring-backs o When mobile phone plays a ringtone in a public place, does that constitute a

public performance? o Ringtones from the Internet feature a short preview

Is that preview a public performance or fair use? • U.S. v. ASCAP (599 F. Supp. 2d 415 (S.D.N.Y. 2009).

o AT&T: transformative use – to sell the ringtones – not a market substitute

o Other side: we license previews – we have rate sheet for previews

o Court held NOT a fair use – previews would need licensing • Books

o Google Book project seeks to digitize the world’s libraries and make them searchable online

Began in 2004 as online research tool and database Announced in 2005, 3 participating libraries Major controversy resulted

• Initial objects came primarily from publishers and authors Some libraries only allowed public domain works Actually very fast and inexpensive process – Google says

o YouTube was sued by the Author’s Guild and a number of publishers in 2005 Alleged copyright infringement on a massive scale Class action Google argued its digitization was only snippets, etc. Announced settlement – Google to pay $125 million – also create book

rights registry (like sound registry) • Would permit online access for a fee • Court must approve settlement

o Objections have been filed o Antitrust concerns o Amazon, Microsoft and yahoo reportedly will be objecting o European publishers are divided

• Register of Copyrights has stated concerns about settlement (in newspaper today)

• Digital Reproduction of Archived Materials

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o A database of original copyrighted material, created for a particular collective work, cannot be reproduced outside the context of the original collective work or its revision.

o Microfilm/fiche of original is ok, text-only searchable database is not. N.Y. Times v. Tasini 533 U.S. 483 (2001).

• If digitized content in CONTEXT, it’s okay. • Cannot have text only searchable databases

Greenberg v. National Geographic Society 488 F. 2d 1331 (11th Cir. 2007).

• Photo pictures submitted to NG were later included in CD collection

• Had intro. Sequence • Replica of magazines • Computer program offering searchable index • Both 2&3 were foruned privileged under 201© • Replica of magazines WAS within privilege • Fact that it had a SEARCH tool DID NOT take it out of the

privilege • Montage itself was a derivative work

• Click-through license o License user must agree to, usually by clicking an icon before gaining access to a

product or service (“shrink-wrap”) Click-through licenses have been upheld

• Shrink-wraps are enforceable as long as they do not violate general contract law (ProCD v. Zeidenberg 85 F.23d 1447)

• For a license to become binding, the user must manifest assent. Specht v. Netscape (306 F.3d 17 (2nd Cir. 2002)).

o Wasn’t conspicuous to user o NEED conspicuous statement – Your conduct on this

website is governed by our terms of use (link) Soon, will impute this to visitor – but don’t have

this yet. o The speaker prefers to use the following wording:

“I ACCEPT” • Music on the Internet

o Examples: Webcast – non-interactive, internet only Simulcast – non-interactive, same content as on-air Interactive music services Ancillary or peripheral uses of music (Lenz, baby dancing to Prince)

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o Digital audio transmission require both: Song performance license (ASCAP, BMI & SESAC)

• If using songs and not sound recordings, just get this license Sound recording performance license – no performance right for sound

recording on the radio – but digital audio transmissions DO have performance right

• Compulsory licenses under Section 144 (SoundExchange) or o Complex requirements: how interactive is it o If interactive (listener knows what’s coming next) not

going to come within this provision • Direct licensing

o Challenging: (e.g., Seeqpod): license for every sound recording that could ever possibly be played. Could make good faith effort to do this though.

o IMEEM: direct licensed everything • Closing Q&A:

o Sites often say anything you create, we own. Courts haven’t decided whether this is enforceable. Comments on YouTube, etc.

o Terms of Use/End User License Agreement ULA where user takes possession of something rather than conduct on

website o Statutory Damages/Economic Damages:

Pl. has choice – if timely reg. of work, (w/in three months before infringement occurred), owner has choice.

• Actual: amount infringer profited + harm o Harm: gross numbers, infringer has to pair away some of

that profit • Statutory damages: many times difficult to quantify – 700-30,000

per work infringed. If willful, can raise up to $150,000 per work infringed.

o If innocent, damages can be as low as $300 per infringement

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Seminar 2: Strategies to Secure & Maintain Prof’l Liability Ins., Wondie Russell et al. (Sept. 11, 2009).

• 5% Discount on Arch insurance • Overview of CA legal malpractice policies

o Possible consequences Malpractice suits by claims (damage awards and fee disgorgements) Suits by non-clients Disciplinary complaints against attorney, supervising partner or firm (new

rule proposal Negative publicity Defense costs (SIR) Time and resources of attorneys Increased cost of insurance Uninsured damages and expenses

o Most insurance carriers only surcharge you for 5 years – but can use to determine insurability

o Having a good docketing system is paramount – blowing statutes is the biggest reason

o No. 1 area is pl. personal injury, real estate, pers. Injury defense, family, then estate, trust & probate

23% malpractice – preparation, filing, transmittal of documents 20% pre-trial pre-hearing 16% advice 8% settlement

o 5 or fewer – 65% of malpractice claims Most due to substantive errors 78% closed with no indemnity dollars (not that large)

o 11-39 -10% o 100+ - 10%

• Financial Responsibility Act o Ca. Supreme Ct. o Rule 3-410 – Where attorney accepts client (new or existing) and contemplates

need to put in 4+ hours of work, and don’t have malpractice coverage, must tell client in writing at the time of the client’s engagement of the member whenever it is reasonably foreseeable the member’s legal representation of client will exceed four (4) hours

o ABA rule is much broader o If you don’t give notice at time of engagement but know or should know that you

don’t have prof’l liability insurance during the rep. of the client, member shall inform client in writing within 30 days of the date the member knows that she no longer has insurance

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o Effective Jan. 1, 2010. • Resource: CA Lawyer – List of Carriers [very competitive, soft market]

o Arch [*CA Bar endorsed] o CAN o Chubb o Delos o Fireman’s Fund o Great American o Hartford o James River o Lawyer’s Mutual o Liberty Mutual o Lloyds o Navigators o New York Marine o Pro-Century o XL

• Admitted v. Non-Admitted o Cal. Ins. Guarantee Assoc. (CIGA) o Limited to underwrite what is filed with State Ins. Comm’r. o Flexibility in underwriting with non-admitted

• Mutual v. Insurance Co. o Little practical distinction o Concept is affinity grp. shares risk, sets premiums, based on actual results, returns

dividends to membership o Company may offer discounts in renewals.

• Primary v. Excess Carriers o Excess of insurance is risk spreading. To gain higher limits generally requires

purchase of an excess policy o Relationship with primary is tighter because it must respond to claims, provide

and manage defense, participate in settlement. o Most solos don’t buy both. o National – usually $1m limits; Cal – usually $100K claim/$300 year

• Rating Systems – Look at 2 resources or more; better rated more stable and may be more expensive.

o S&P’s o A.M. Best o Fitch Ratings o Moody’s

• Bottom Line: What is rating? Is it admitted?

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• Cost o Factors affecting

Type of practice • Copyright v. family • Arch gives discount for family law / some surcharge

Length of practice • Also consider New Admittee programs

o E.g., Lawyer’s Mutual ‘s “strong start program” o Estimated at about $2100-3000 per year o Solo Practice on freelance basis for other law firms

In cover letter, write what you do – work for A,B,C, then own practice If covered under “of counsel” at other firm, can carve out If firm doesn’t have good insurance and want coverage for specific work

you do – specific firm exclusion Deductible OR Self-insured retention – to lower premiums, 100K policy, 10K SIR Reduction of premiums (5% - arches)

• Reduces deduction not to exceed 25K if participate in special meeting before lawsuit

Lawyer’s mutual – does not cut premiums. Can’t say, I have great document control, can you cut premium?

• Questions to ask before purchasing insurance: o Length of time insurance carrier has been underwriting LPL o Financial status o Time & track record in CA o Experience of claim examiners o Experience of defense attorneys o Some carriers don’t cover defense of claims before state bar – one should

consider getting coverage for this. • Broker’s role:

o Give accurate info. o Provide you with costs and differences in coverage o Transmit underwriting info. To insurer(s) o Conduit in claims process

• Value Added Options with Arch (CalBar-endorsed carrier) o Loss Prevention Hotline o Risk Management Website o Versus Law = free legal research o Alternative Dispute Resolution o Broad Definition of Professional Services

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o Loss of Earnings Reimbursement o COPLI

• To Avoid Malpractice … avoid problem situations! o The 5 C’s

Case Selection • Don’t take cases that have no merit (Rules of Prof’l Conduct, Rule

3-200) • Cases that are too complex

o Do you have the resources to handle? o Cases out of lawyer’s area of experise

Client Selection • Client who just wants the money • Inexperience or uncontrollable client • “I’ll get you, Gary!” • “Bargain Basement Betty”

o Wants something for nothing • “I need it now!” • “Second Guessing Steve” • “Litigious Larry” • “Twilight Zone Tom” • Friends & Family

Conflicts of Interest • Checklist – you must have one!

o [See handout] Adding new party Adding new partner, member of firm […and many others]

o Also refer to 1800ETHICS hotline (back of bar card) • Damages in this area are usually huge

• Client Communications o Define attorney-client relationship in written retainer agreement o Keep client informed during all stages of litigation/representation o Utilize billing as opportunity to communicate o Return all phone calls and emails promptly o Read the Cal. Rules of Prof’l Conduct!

• The Engagement Letter o “Client knows he has a lawyer, and lawyer knows he has a client” o Create form – but must modify – must state length of record-keeping – 7 years,

but can make shorter if specify (and give notice when time approaching and ask what they want you to do with them)

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o Get a record-keeping system! • Confidentiality

o Electronic devices o Copies of documents should be shredded o Keep all client communications within the office o [See slides for ESI and e-Discovery rule explanations]

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Seminar 3: Going Solo in Tough Economic Times, Patricia L. McCabe & Marilyn A. Monahan (Sept. 11, 2009).

• Strategies o Questions to ask:

How do I get started? Can I afford to do this? Who are my clients? Can I market myself? How can I do it on my own? Will the solo or small firm atmosphere by right for me?

o Considerations for Opening a Law Office: Self-Discipline Expectations of finding paying reasonable clients Ability to work without substantial support staff Ability to work in a setting without a ready network of associates Comfortable promoting oneself as an attorney Never-ending responsibilities as a small business owner Part of every work-week is devoted to non-billable hours

• Try this: Only devote time to business – Friday after noon • Business Dev.

o Choosing a business form Sole proprietorship

• Easiest to start • No limited liability

Corporation/LLP • Start up costs – filing fees, minimum tax payment to franchise tax

board, and payment to state bar. • Initial and annual filings with Secretary of State and State Bar of

California – must get advanced approval up-front, so plan ahead o See Sec. of State Website and State Bar website for forms

• Some limits on liability • See article in Solo Magazine (handout)

o Getting Started Obtain EIN/EDD account number

• Don’t recommend social security number Register fictitious business name

• Remember to be Bus. & Prof. Code complaint • “Law Offices of Mr. X” – check county rules – in L.A. county, it

needs to be registered. • Must register in every county county

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• If “Mr. X, Attorney at Law” – No registration required, according to California Bar

Obtain Business License • Some cities tax a lot higher than others

Develop Practice Focus • What are the trends? • Do you want to transition what you’re doing over time? • Types of clients you want to take on?

o Small business owners need legal representation – Cal. Bar and ABA studies show

Develop Business Plan • Think about: mission, focus, strategy, vision, funding structure,

strategic plan, client base • Financial plan to obtain and build capital

o Banking structure Trust accounting Lines of credit

o Technology and equipment o Legal resources o Office space considerations o Staffing plans o Marketing/networking plan o Other professional resources

HR attorney to talk to Good banker, CPA, real estate, IT guy, and tax

lawyer to talk to. • Draft it • Review it every few years and see if you are meeting your target

goals • Revise it as necessary

Develop Marketing Plan Determine Business Needs

o How much money do you need? Forecast 18 months Prepare a budget for the firm and personal expenses (living expenses)

• Business overhead – fixed, discretionary o Can you skimp a little on technology and use what you

have for now? o Fixed – office lease, phone bill, internet

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o Discretionary – “wish list” – e.g., consider using a community law library rather than buying new books

Be realistic Structure a cash reserve plan Have a contingency plan to give you other options

o Potential sources for funding (in order of preference) Commercial business loan Line of credit SBA loan (sba.gov Home equity line of credit Vendor financing Credit cards Personal signature loan

o Cash Flow Management Retainers good with individuals, less reliable income – trust accounting

rules, know the rules! Also, know the tax consequences! Managed by type of cases and billing (hourly, contingent, or flat fee) Collection procedures

• Keep track of daily time! • Try having someone else other than you make collections calls and

be the “good cop” who comes in and offers help… Trust accounting – See Rule 4-100

• See “Handout on Client Trust Accounting for California Attorneys’ by the State Bar of California” – www.calbar.org

Expense Control o Office Space Considerations

Virtual Office Work from Home – still maintain prof’l presence & appearance

• Good phones, good computers Work for Space – look to big firms and ask to make appearances for them

in exchange for space. 5 hours a week, in exchange for cubicle, conference room, library.

Conference room Rental Office Space Rental Month to Month Rental Lease

o Practice Area Focus Branding Practice Niche Whether to focus on specific industries

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o Insurance Considerations Errors and omissions General liability Office overhead Business interruption Business insurance Employment practices liability insurance Worker’s compensation Health insurance Umbrella policy

• Prof’l Growth o Marketing v. Networking

Marketing is advertising plan for firm Networking is part of your marketing plan Determine what type of clients/cases you are actively seeking What sources are your best bet for getting those clients/cases How can you access those sources

• Create a list of those sources • Who are the decision-makers • Narrow the list down to the top three sources

o In person marketing Speaking engagements Bar association activities Pro bono service Philanthropic organizations Chamber of commerce Civil organizations People in your building

o Writing articles o Electronic posts- LinkedIn, Facebook, Twitter, MySpace o Newsletters – paper and electronic o Announcements o Direct mail

• Financial Mgmt. • Staff Dev. • Work/Life Balance • Key Critical Issues (which are vital for solid solo and small firm management)

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Seminar 4: Undocumented Aliens; Issues Presented in Representing Undocumented Aliens, Joseph Urcis & Robert M. Klein (Sept. 11, 2009).

• Initial Consultation: o While you need to ask a client about his/her legal status, never ask point blank. o The great majority are unfamiliar with our legal system. The hardest task you will

have is earning their trust. o Make the client feel like she’s the most important client – this helps you

overcome their initial distrust o Winning confidence:

One way: try to speak their native language as often as possible Even if it’s only a few words, they will appreciate you trying

• Retainer Agreement o Whenever possible, put the agreement in their native language

Avoids future ambiguity or question Have person sign name, say it was translated

o Explain the contract in their native language so they do not question your charges or fees later on

• Additional Ideas: o Language issues

If large enough, hire an interpreter • Note: you should voir dire your interpreter

Or, bring in a family member more conversant in English [be mindful not to waive the attorney client privilege]

Consider hiring staff conversant in another language Send introductory letter in client’s native language

o Advise them about confidentiality: Do not post things on Facebook or MySpace Do not talk with opposing counsel Do not give a statement to an insurance carrier

o Explain what to expect from litigation How long litigation may take Appearing in court (how to dress) Discovery Explain the costs of litigation and the difference between costs and

attorneys fees (e.g., if charging 33 1/3%, costs are in addition to that) o Be Patient

You will be making important decisions about the case, since they won’t know much about the law

Don’t treat them as inferior, simply because they’re undocumented

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If you have issues in this regard, it is better not to represent an undocumented alien at all.

o Undocumented clients will have more fear coming in Be willing to explain things more than once

• Public Bias o Many strong emotional issues o Do not overlook these issues particularly when facing a jury trial o You may have a great case but an unsympathetic client

Know the venue you’re in! o Language barrier, cultural barrier and juror bias are important considerations

• Illegal aliens do not have the rights enumerated under the Constitution o Equal protection clause applies to all people. “The fourteenth amendment to the

constitution is not confined to the protection of citizens.” (Wing Wong, 163 U.S. 228 (1896)

o Aliens do have a due process right (habeas corpus) o Protected by 5th and 14th Amendments o They also have first amendment rights. o Undocumented aliens may not be denied benefits, including education o 4th Amendment Search and Seizure Right (INS v. Lopez-Mendoza)

• Jumping the Fence o An alien’s rights differ at the border compared to their rights after successfully

crossing the border. However, when crossing the border, immigration authorities have the unfettered authority to stop, detain and demand identification.

• Selecting Jurisdiction o Immigration proceedings are administrative law, not criminal law – and b/c

national security and foreign policy is involved • Employment Rights

o Don’t have the right to work o However, if employers want to exploit them, if employer illegally hires an

undocumented worker, and harasses or otherwise exploits or abuses that worker because of, for example, race, color, sex, religion, national origin, age or disability, it must pay the consequences of that discrimination.

o Once you work, whether undocumented or not, all the same employment discrimination laws apply.

o State Wage and Hour Laws Undocumented workers generally have the same wage and hour rights as

other workers Wage and Hour Laws establish your right to minimum wage, overtime

pay, breaks, tips and other forms of wages • Wrongful Termination/Antidiscrimination

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o Under Federal and California anti-discrimination laws, employers cannot illegally discriminate against any worker, including undocumented workers

o However, an employer, under IRCA (Immigration Reform and Control Act of 1986) must refuse to hire, or terminate, an undocumented worker once they learn of the lack of work authorization. Reinstatement is not a remedy available to an undocumented worker.

• There are a lot of undocumented business owners • Unemployment Insurance

o Even though an undocumented worker may have contributed to the State Employment Development Dep’t (EED) system, the agency has determined that undocumented workers are not “available for work” because they are not legally eligible for work, and therefore are not able to collect unemployment insurance.

• Disability Insurance o Employees, including undocumented employees, have the right to benefit from

the money they have contributed to the system • Social Security

o Not entitled, even though they kick into the system o U.S. Senate continues to debate a bill that would allow undocumented aliens the

right to pull out of this • Damages in Personal Injury Cases

o Plaintiff in a civil action who is an undocumented worker subject to deportation, and thus not lawfully available for work in the U.S. may not base a recovery of future lost earnings on prospective earnings he/she could have made in the U.S. had she not been injured or damaged. Rather, the earnings loss evidence allowed will be limited to the projected earnings in the country-of-citizenship of the undocumented worker. Rodriguez v. Kline (1986) 186 Cal. App.3d 1145; Clemente v. State of Ca. (1985) 40 Cal. 3d 202.

o Open question whether 5th Amendment issue will apply – once you start talking about any facts, you waive it. If you intend to plead the 5th, don’t give disposition. Could always bring motion in limine, say to judge waiving loss to right to earnings, don’t want it to come up. Will prejudice jury.

• Deportation o Illegal entry into the U.S. is subject to criminal prosecution under federal law o However, illegal presence is not a crime under the same statute. Someone picked

up for overstaying a visa would be subject to deportation proceedings. o Grounds for Deportation (non-exclusive):

Moral turpitude conviction; Aggravated Felony conviction; Firearms conviction;

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Domestic violence conviction; including child abuse, neglect or abandonment;

Violation of a Domestic Violence Protective Order issued by a Civil or Criminal Court – no conviction required

Drug conviction or drug conduct (drug abuse or addiction after admission).

• [Must discuss drug conduct issue with immigration lawyer] • Grounds for inadmissibility

o Moral turpitude conviction or formal admission o Multiple criminal convictions with aggregate sentences of five or more years o Drug conviction or current drug abuse or addiction o Conduct that gives the U.S. Government reason to believe the person is or has

been involved in drug trafficking activity o Prostitution conviction

• Plea considerations o When dealing with undocumented alien in criminal conduct, the stakes for the

client are much greater! Consult with immigration attorney! • The Winning Edge

o If you make your client feel like they are the most important client, you will overcome their initial distrust

o You will also gain a good referral source o Your client will be happy o You will be happy

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Seminar 5: Conservation Easements 101, James L. Pierce (Sept. 12, 2009).

• Overview – Crossover with property and estate-planning area o Basic idea: landowner gets tax benefits if puts restriction over land that benefits

property as a whole. o Truly a real estate transaction o Basic Property Law

Fee Simple Absolute Conservation easement is negative easement – conveying away certain

rights, and depends on the property, certain characteristics of property and the parties.

o In return: tax donation, may get money, may get both (“bargain sale”) o Important laws involved:

CAL. CIV. CODE 815 – who can hold, defines IRS regulations involved – IRS Code Section 170(H) Treasury Regulations

• Property Values of Conservation Easements o Economical values o Open-Space Values – Often an NGO or environmental org. transaction

200 acre parcel on the 101 – may have public benefit value to open space that you may be able to sell away.

Govn’t incentivizes with tax benefit – can still own the land • Open Space Invention Act • Open Space Easement Act • Active program on federal level for preserving farm land

o Williamson Act controversy – states “payback” to counties has been drastically reduced by Cal. Gov.

o Wildlife Habitat – Often an NGO or environmental org. transaction Good place for sensitive animal Can sell/convey value so species can use it

o Historic Values Happens more on the east coast Public dollars, private dollars spent If you want to retain ownership and not convey all, just convey rights to

change historic nature o Agricultural Use Values

Federal (Natural Conservation of Resource) and State levels • Parties to Conservation Easements

o Must record this at county recorder’s office! o These are perpetual rights – they travel with the land o Landowner perspective:

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Protect family farm (because necessary, love lifestyle, or if we break it up, we get a lot of estate taxes)

o 3rd Party perspective: non-profits, organizations, interested parties Looking to build a relationship with (an often recalcitrant) landowner

o Landowners with no real public benefit – Many more people who would be more willing to convey than there are tax benefits for them (“Um, we don’t really even want your property …”)

o Also may affect neighbors – so check the municipality’s ordinances GOVN’T CODE 6091—notice to neighbors Also may affect local ordinances like Right to Farm Act

o Municipalities may sometimes hold conservation easements o State money may sometimes be used o Education of property owners about its special characteristics is a very important

part of this. o Must establish baseline data

Document why public benefit Why want to preserve it Prove up what happens if it’s changed in the future Photographs, scientific studies, mapping If you’re landowner’s counsel, can’t blow off paying for this or they may

not get the tax benefits. • Tax Benefits of Conservation Easements

o Highest and best value is how you’re taxed in California – as you restrict it, your tax obligation decreases proportionally.

o Note: other states have another situation • Acquisition Issues

o Appraisal Requirements o Title Issues:

What if owner of property really doesn’t own the property? • Perhaps there’s another joint owner.

Loans on the property – subordination issues Access issues

• Perhaps written ingress/egress; prescriptive rights • This might dovetail into a baseline data situation

o Recordation issues – other easements recorded before or after easement gets recorded?

• Monitoring and Enforcing Conservation Easements • Form Easement

o California Farmland Conservancy Program- has a model easement online o [See Handout]

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Seminar 6: Real Property Foreclosures in a Nutshell, Michael P. Brody & Charles A. Hansen (Sept. 12, 2009).

• Introduction o Huge difference in CA between real property secured transactions and ordinary

debt transactions When you take a deed of trust to secure debt in Cal., there is good and bad

from both debtors and lender’s perspective. • The remedies change.

o Bentley case – Mortgage and “deed of trust” are the same thing Only difference is the way the statute of limitations works (but very

esoteric) o Deed specifics

Conveying a deed of trust – intention is not to convey the property; the intent is to secure property for a loan.

Interest in the land is just a means to an end. o Assuming an obligation—e.g., promissory note, I.O.U. & mortgage interest o Key terms:

“Deeds of trusts” “maker” – making promissory note; debtor “creditor” – beneficiary Trustee under trust deed is not really a trustee “Anti-Deficiency”/Deficiency

• Deficiency – creditor comes up short once applies security to debt; now wants a judgment against debtor (this is not the pursuit of additional security)

Anti-Deficiency Statutes – tell creditor won’t recover full debt if made imprudent loan that’s not properly security or market has gone bad.

• The Obligation, Defaults and Disputes Over Payment o Negotiable Instruments and Non-Recourse Endorsements

Commercial Code Section 3-104 – when assignee acquires for value with no notice may be holder in due course, is not subject to borrower’s defenses.

• What defenses can a homeowner raise to overcome? Issue about Chain of Title

o Mortgage v. Deed of trust SOL difference

• Can argue this is a 6 year statute under the California commercial code (118)

A non-judicial foreclosure is not an “action” • Non-judicial foreclosure doesn’t involve state action, so it doesn’t

involve due process considerations.

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• You look to civil code foreclosure procedural laws. o “Power of Sale” provisions

Language must appear Might see it missing with lender using out-of-state forms; or where not

really a deed of trust (some negative obligation that’s lacking in the power of sale)

Negative pledge ambiguous (Tahoe Bank) – if the nature of what’s happening is ambiguous then the borrower gets the choice of whether they want it to be a mortgage or not.

o Trigger Events – right to accelerate Right of lender to recall entire monetary obligation CAL. CIV. CODE Section 2924 (c) and (e) – borrower can reinstate up to

five (5) days before foreclosure sale. o Due-on-Sale and Due-on-Encumbrance Clause Enforceability

Was considered okay in commercial context Ridgley Case – despite legislation, court will look at prepayment

premiums and late charges to consider reasonability • Foreclosure, Enforcement & Anti-Deficiency

o Timeline: 3 months, 20 days between notice of default and auction/sale – minimum amount of time

(1) Notice of Default (to tell borrower in default and opportunity to cure)– not to be confused with letters from lender that may proceed

• Trustee fees then kick in. • If there’s going to be a redemption, think about challenging the

add-on costs. o Might be a triable issue of fact.

(2) Three (3) month waiting period kicks in, but • Some programs now extend by another 90 days • But also opportunity for lender to apply for exemption (as loan

modification program) and not get 90 day period. • Only residential (not even all, so check statute)

(3) Notice of Trustee Sale (to tell world there will be auction) (4) Posting and publication - Twenty (20) day period to complete (5) Sale held – public auction in public place

• Can be postponed and often is. o Lender has election about how it wants to enforce, but can’t do this until it

completes the sale or the foreclosure on the land. o Fees are all accruing during this – attorney fees and trustee fees

Always consider duty to mitigate damages here! o Attacking Trustee Sales – “They’re foreclosing on me, can you stop it?”

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Ask: • If you can’t pay your lender, how can you do this on anything but

a pro bono basis? • Attack the sale before or after it occurs?

o Majority rule: attack before sale, rather than after – looking to foreclosure law 2924 et seq.

Don’t want to integrate a bona fide buyer into the process!

Due Equity Requirement • Warning: When you come to court to set aside sale, coming to

court of equity. Equity won’t help those who are acting inequitably. If client owes some of the money, and they haven’t offered to pay it, the court will not enjoin a sale for not doing what they’re obligated to do but are not making an effort to do.

o Many judges take this approach • So, tender the amount not in dispute! • Important note: If the judge requires a substantial bond with the

injunction, can you pay it after? (Usually 24 hours). You may win the battle but lose the war.

o Judicial Foreclosure Another alternative – requires creditor to commence litigation; non-

judicial does not (either in state court or bankruptcy, issued by borrower). • Why would creditors do this?

o (1) No other choice: you have a security interest that doesn’t have a power of sale (e.g., negative pledge; out of state sale (so can’t do trustee sale))

o (2) By choice: CCP Section 580d – If you complete a non-judicial foreclosure, creditor cannot recover a deficiency judgment on a note.

So, if you want a deficiency (if you’re under-secured and no other guarantees or credit support), may make economic sense to put up with Cal. Judicial proceedings.

If you waive don’t have to worry about post-sale redemption

Either sheriff or court receiver or comm’r orders auction or sale (minimum of 120 days)

• Can take up to four (4) years Foreclosure sale looks like trustee sale.

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• With key difference: property sold subject to post-foreclosure right of redemption – Cal. Code of Civ. Proc. Section 729.010 (critical in bidding strategies)

Sale occurs – three (3) months statute of limitation starts to toll • Creditor must come back in same proceeding – file fair value

complaint, saying “now I want my deficiency” • This will be a contested issue of fact

o Parties will separately hire appraisers o This may take another 1.5-2 years

• [See also Cal. Code of Civ. Proc. Section 726(b)] • If it’s not filed, the deficiency is barred. • But what does fair market value mean when the market is so bad?

o A couple of courts in Cal. came up with value of what it would be in an attractive market – courts of appeal made it clear that intrinsic market value ignores fire-sale factors of jud. Foreclosure, you don’t get to say “in happier times” it would have been worth this amount.

o Anti-Deficency (“AD”) Rules Four main rules are folded into transaction by operation of law:

• (1) Purchase money anti-def. rule – based on nature of loan/security – if loan is purchase money, it is so from the moment loan originates. Means institutional financing.

o Another scenario. Any seller financing on commercial deal as purchase money note and deed of trust – if part of security was property sold, the loan would be non-recourse.

• (2) Section 580(d) – There shall be no deficiency on a note issued …

o Doesn’t apply to non-note obligations. IOU’s, contracts, perhaps guarantees

o Can’t count on this if non-note. o But may be able to fall back on all other anti-deficiency

stuff • (3) Fair value Rule

o CCP 580a – Applies after non-jud. foreclosure o 580d – Applies after judicial sale

Judicial anomaly • (4) 726(a) “third rail of mortgage law” – don’t touch it if you’re a

lender!

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o Changes everything b/c says when you take deed of trust to secure debt, required to apply it to debt before going after the debtor’s wallet

o Schwenke Case – when take a deed of trust in Cal., borrower is not promising to pay, they’re promising to be liable for a deficiency if they default and the judgment doesn’t satisfy the debt.

Creditor problem: In deed of trust, until you get deficiency judgment against them, you can’t get their wallet ever. (Rosette case)

Also can add by contract • Guaranties

o Obligation of one to fulfill the obligation of another o Issue in Cal.: surities are allowed through common law and Civ. Code 2809 have

many similar parallels on creditor enforcement. However, unlike protections afforded principal borrower, surities can

waive all of those defenses. So, their contracts are usually longer to get through all the waiver language.

2856 – formula for guarantor waivers o If surities can waive defense, what if surety is asked to provide collateral by

giving security on their own property. This is third party security deed of trust. Enforceable.

But lender may not include waivers. This is a non-recourse guarantee. Gransky Doctrine – if guarantor pays lender on principal’s obligation,

subrogated to the borrower. But if lender when ahead before guarantee enforcement and wnet into trustee sale, lender has raised the same bar as against the guarantor.

• 2856 (waiver of Gransky) – • If you have guarantee with no Gransky waiver – could tender the

sale to the guarantor. o Full Credit Bid Rule

At a foreclosure sale, foreclosing bidder has an advantage; law allows them to make a credit bid – allowing to bid amount instead of getting out cash.

If the lender bids the entire debt at the foreclosure sale, they have just been paid in full.

• Any effort to recover more is precluded b/c there’s nothing left to be recovered.

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• So no matter what they’re doing, they’re trying to enforce a debt that doesn’t exist.

• Only way they can get out of a full-credit bid, is if they make argument they have been fraudulently induced into making the bid.

• Priority Issues o Trust Deed Priority Generally

First in Time, first in right in Cal. • Next level: recording acts. For the benefit of latecomers. • Special rules of priority – 2890 (tie in priority) • Subordination Agreement – by contract

“Purchase Money” Priority Construction

• Critical Issues in Representing Lenders, Borrowers and Guarantors o New Foreclosure and Mortgage Relief Legislation o Mixed Collateral, Multiple Security o Cross Collateralization and Defaulting o “Mezzanine” Financing

• Debtor & Guarantor Strategies • Secured Lender Strategies • Fraud in Secured Lending & Escrows • The Future of Mortgages and Foreclosures • Representing Borrowers

o Engage early with lender – more willing to consider if hear it first from borrower Pre-negotiation agreement is okay, as long as not waiving rights. No

obligation to each other unless we sign a contract.

See also Supplement: Michael P. Brody, California Home Mortgage Foreclosures, STATE BAR

OF CAL. (Seminar #105 Sept. 12, 2009); Table of Cases (2009), available at email: ftaylor@wendell.com.

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Seminar 7: Deuce-A-Rama: Steering Clear in DUI Representations & Practices, Part I, K. Randolph Moore & Marshall M. Schulman (Sept. 12, 2009); Innovative DUI Trial Tools (Compilation).

Speech I: K. Randolph Moore

• Case Factual Synopsis o .26 Blood Alcohol case o Two witnesses in a car behind her – testified they saw her swerve off o Accused of fleeing the scene, went ¼ of a mile down the road o Another witness: woman stopped, said she saw the woman stagger around, get

back in car, and then commit hit and run. She then went home, and couldn’t get off the couch to do a field sobriety test.

o Got a .26 blood test some time later. o First time offense, wanted to go to trial o Eyewitnesses:

Car behind: man and wife testified truthfully; swerving, erratic driving. Followed vehicle then drove away.

Other woman: 35 to 40 years old. • Key to case: break it down, see if weak spot.

o Driving wasn’t good. Staggering, incoherent, alcohol level. o “Admit, Deny!”

If you fight every issue you’re confronted with and lose your credibility, you will have the jury against you.

Realize the jury appreciates an honest factual account. Admitted his client was guilty of hit and run. Admit blood test. Admit

staggering, red faced. However, the key in this case was whether she was drinking before she

had the accident or did the drinking occur during the interim? • Don’t use alcoholic drinking as a defense! • How did he take apart the eyewitness, who had no reason to come into the courtroom to

lie? o Aggressive cross-examination of a citizen bystander

Generally not advisable, unless they ask for it • How do you get them to ask for it? How do you get the jury not to

hate you before you knock them down? o Take apart the story

Inconsistent statements b/t police and direct examination on the stand

• Usually at least 1 or more inconsistencies • This is the mainstay

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• This will only get you so far with an honest person, but with a citizen eyewitness who was not trained to testify, it can be devastating on them.

• Show their bias. o Get them overstating what occurred. o Be aggressive if they exaggerate and you show it. If they

assume the prosecutor’s position. If they change their story. o Say, “now you’re changing your story. I’m not saying

you’re a liar. But I’m saying you’re changing your story.” o Get dispatch records o Use their demeanor to your advantage

Witness is looking at the defense, Jury looking at the photo of the truck behind her.

• Single event changed the trial. • [Reviews the transcript] • When an eyewitness shows certainty, then backtracks • Once somebody says “I’m damn certain that it’s there,” you may

have an inroad. • Pin them down every time. • Don’t be afraid then to attack. • In transcript, you want to skip around.

o Once you make your point, move away from it, and skip to something else.

o Don’t confuse the jury though. • If the police wrote that up and said you said that, then that would

be a lie? Take vantage point:

• Where were you? How far? o In SUV

When they fight back, they give you permission to fight more? • Ask: did you write a report?

o No, I wrote notes. I spoke to someone. Bias

• Once you have witness that seems to have some bias, go to it. • Isn’t it true, you’ve always made yourself available to the

prosecution in this case? • And in fact you talked to the prosecutor in preparation for your

case?

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• During the breaks, pay attention? Weren’t you in the hallway preparing your testimony with the D.A.?

o E.g., “Did you or did you not sit in the hallway with the D.A. and prepare your testimony for this afternoon?”

• If you get the witness to be evasive, it can help you. • E.g., “How about your experience with alcoholism?”

o You really want to discredit the D.A. Expose how the system really works.

Note: You shouldn’t try a case for less than $5,000 but if you want the experience, you might.

Speech II: Michael Kennedy “Captain Motion”

• DUI is a political crime. o Not only the criminal law issue o Also have political spectrum

But if you look at the statistics drunk driver caused [x] is not what the facts support. What the facts support is “alcohol related” these facts drive the statistics

• If you go to trial, it means you lost the motions! • Pro-active police are counter-constitutional • Point out in every motion that the power of the govn’t was King James and he was

evicted • When you don’t push the point, no one else will. • Have an aggressive bearing that says I have a right to win this thing • Know the nature of what you seek and how to achieve it.

o See if D.A.’s use the “Autobrief” • If you have a suppression motion and a felony, always bring it at the preliminary hearing.

o 1) gives you three bits of the apple 1538 995 Tighten up with additional 1538

o 2) at prelims, you usually have junior D.A.’s o 3) usually won’t bring correct witnesses for 1535 contest (have to bring direct

evidence) • File a unitary pleading

o Don’t do a double-pleading • Emphasize facts

o Motions and law are facts-based o Make it only the pertinent facts – and don’t throw in their version

• Be brief in your moving papers

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o Particularly with suppression motions o One kind you can’t: 995 motion in murder case o Try not to be more than 5-7 pages

2-3 5 pagers, rather than a 15 pager • Be attentive to your language – don’t use stilted language • Do groundwork for your effort

o Search-and-seizure motions / checkpoint o Go to the scene! o Can’t stop without signal only under certain circumstances! Go back to the

vehicular code. o Dangley: did you put your head to the vantage point of the driver? And he says

no. You will win the motion. o If they say a hitch-ball is covering the license plate, see if they called the license

plate in, in its entirety. If you see they radioed it in, it’s not obstructed.

• Be creative and observant o Checkpoint stops

No such thing as a DUI checkpoint • There is a warrantless liberty infringement – the burden shifts, they

have to carry the burden. Do not demand discovery. Don’t say, I didn’t see any advanced notice.

• Once you establish it’s warrantless, say the burden shifts. Don’t say want all seven things in Ingersoll v. Palmer!

Sometimes in checkpoint cases, put in footnote at back of second pleading -- 5 Cal. App. 4th 932 – Due process right to discovery necessary to mount a 4th Amendment Attack!

• 1054 is statutory • Marbury v. Madison is in all of his cases – when conflict between statutory law (vehicle

codes) and constitution, the constitution always wins out! • Approach: I’m not saying he’s wrong, he hasn’t proved he’s right! • Don’t reinvent the wheel and provide copious citation to things not in contest • To the extent that it doesn’t prejudice the client, keep defendants together • Prepare!

o Always know the counter rule and don’t put it there. • When you’re doing things, catalog what the defendant did correctly • Try to always win with your motions • Purpose for motions v. Results

o Don’t file motion unless you expect to win o Results, however, can be manifold o Stated purpose is one. o High bail can get reduced. o Favorable disposition on balance of risk where D.A. doesn’t want to do any work.

• Trick if you’re offered a dry or win a suppression motion

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o Dismissal won’t do it! Need acquittal! So when you have all evidence suppressed or offers dry or speeding, you want a “Not Guilty” Helmendaller 992 7Cal App.4th 52

You do not want dismissal, you demand a trial. You can oppose the motion, because it prejudices the client. You will

appeal the dismissal. o Can agree to waive jury, call it as a court trial. DA will do what I tell him to do.

He will say I have no further evidence. Clerk puts down: Court trial. Verdict Not Guilty. B Trial. This then undoes DMV admin for Cite!

• Invaluable Discovery from Motions • Aura of scholarly obnoxiousness keeps cops at bay.

Speech III: Bruce Kapsack (Bd. Certified DUI Specialist)

• Three Phases of Alcohol o Absorption: initial intake of alcohol, usually orally, into a human subject

There is no specific pattern for absorption. No one has one. It depends primarily on, sex, stomach contents, drinking pattern and individual metabolism

The range from the literature to total absorption is 13-168 minutes (although up to 6 hours has been observed) with a mean of about 50 minutes for men and 45 minutes for women (See Dubrowski, Jones, Simpson)

• This is not on a full stomach – average person drinking averagely • Don’t let them get away with it when they say it’s absorbed in 13

minutes. • For most people, when they chug a lot of alcohol, it slows down

the absorption rate. o You can use Animal House example in trial. If you chug an

entire bottle of whiskey, alcohol level won’t be .o8 for a good 20-25 minutes or longer.

Peak alcohol level is reached shortly after full absorption o Distribution: Process of digestion and circulation of alcohol through the subject

Alcohol is unimportant until it reaches the brain. • You can have tons of alcohol in your stomach, but not impairing

driving yet. Alcohol is absorbed in the small intestine then circulated through the

blood from the small intestine to the heart and lungs then to the brain. This creates a lag from full absorption to maximum effect, commonly

known as peak alcohol level. o Elimination: breakdown and ultimate release of alcohol through metabolic

processes

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This is more readily defined than absorption based on human similarities Olive oil and big meal does not make you less drunk – time they hit their

peak is usually when they’re back home. o If you have someone who works with paint, the alcohol takes longer to leave the

system. • Retrograde Extrapolation

o The process of back figuring an alcohol level based on drinking pattern and some alcohol test

o This is not scientifically accepted and has been disallowed by at least one state. State v. Mata 46 S.W.3d 902 (Tex. 2001). See Dubowski.

o It should not be relied on in a criminal case. o Only one answer: can’t tell. I don’t know. o If D.A. does this tell judge that undercut 3 hour presumption, and since they

have undercut and I haven’t asked it, can’t argue 2 inconsistent theories. • Partition Ration (People v. McNeal)

o This is the amount of blood in an average person compared with the amount of breath.

Who is “average?” Has to do with how much air v. how much blood

o Range is from about 900 to 1 through about 2750 to 1 If it’s a .08 breath at 2100 to 1, and they’re true ration is 1050, they’re

ratio is .04. o This is critical because of interfering substances and their alleged toxicity

Some chemicals have partition ratio in double, triple digits • Wouldn’t have to have much in system to make breath test wrong

Paint cases – have client bring in OSHA rules – paragraph 65 • Specimens for Alcohol Determination in Living Individuals

o Blood o Breath o Urine – not for most cases; available for blood cases and if either the blood or

breath test not available, • Specimin of choice to determine level: blood

o Blood alcohol concentrations (BAC) are better correlated with impairment o Breath or Urine are used as estimate

• Proper blood collection o Free from contamination

Certain bacteria: candida albicans – makes more alcohol Refrigeration and sodium fluoride – only slow the process down

o Non-alcoholic cleanser o Use a gray-Top Tube

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Anti-Coagulent: Potassium Oxalate Bacteriostat: Sodium Flouride

• Dep’t of Health and Services will tell you how much each lab uses • Why didn’t you check that you had the 1% before you did the test

Maintain and Document • Chain of Custody

o Gas Chromatography Can separate into individual components Does not absolutely identify the substances Get the paperwork b/c they may miss it in the paperwork GC is a race:

o Ummunoassay (Hospitals) o Breath Testing

Draeger 7110 Composition of human breath

• Mostly water, little CO2, Ethanol o Fuel Cell: doesn’t have a way to test itself o Draeger 7110: they never clean it o Breath Test – 6 Premises

Equilibrium – body processing alcohol in intestine at same time the body is getting rid of it.

• Simpson has published and Dubowski has as well, that breath testing prior to equilibrium, i.e., during absorption, will overstate true alcohol level by as much as 200%

• Clients are tested roadside now o Don’t have built in help

• In other words, testing in less than 30 minutes after last dose, assuming it was more than a mere “topping off”, is not scientifically valid.

o Bring in articles under 721(b)(3) – whether the expert read or relied on the article is irrelevant. If you can prove that the source you’re quoting from is reliable, then you can cross-examine the expert whether or not

Alveolar breath • Don’t get true air • Hlastala Research

Henry’s Law • Concentration of a volatile solute in the vapor in equilibrium with

a liquid solution is directly proportional to the concentration of solute in the solution.

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• For alcohol at 34 degrees it is about 82% • If your client has the flu, alcohol level will be 48% higher.

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Seminar 7: Deuce-A-Rama: Steering Clear in DUI Representations & Practices, Part II, Barry Simon (CALIFORNIA DRUNK DRIVING), Ronald Moore, Mark Rafferty & Marshall L. Schulman (Sept. 13, 2009).

Speech I: Barry Simon

• Overview o Framing the issue is essential to how the jury perceives the entire case o JuryInsight: California Jury Predisposition Research (2006)

DUI Juror mindset • Hate your client • Hate you • They think your client did it • They think you’re covering up • They think that if your client doesn’t testify, he must be guilty • They trust the police • They expect you to lie

o You must defy expectations o Jurors do understand medical defenses if you do it legitimately

If you take this theme, it should start from the very beginning; be ethical and credible

Don’t take a medical defense if your guy is on tape slurring his speech Take it if there’s a disconnect

o When you have the theme, tell the story from the beginning Start from voir dire

• Look at juror with big foot, size 11. “Suppose you were wearing a smaller shoe size and you had to walk the line. Would that be fair?” Allude that we’re all individuals. Some can be cheated by these machines.

Opening statement • Studies show that you win at opening. Put a hook in here! • Should tell the story – e.g., has terrible condition.

Cross of cop to confirm. Cross of people’s expert to confirm. Put up of your doctor.

Speech II: Ronald Moore

• Diabetes o Increased urination, increased appetite, increased thirst o Two types:

Type I: caused by loss of cells in pancreas that produces insulin Type II: reduced sensitivity to insulin

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o Two conditions associated therewith: Hyperglycemia: high blood sugar

• Thirst, urinate, drowsy, blurry vision Hypoglycemia: shaky, fast heartbeat, sweating, dizzy, anxious Ketosis & Ketoacidosis: when body uses fat cells to create energy

• Creates acetone in the body – lowers your blood pH • You can also get this on the Atkins Diet

o Diabetes can mimic symptoms of intoxication • IR Breath test interference

o Detects for acetone o But how do you set this?

Use simulator But did you ever check with both alcohol and acetone? No? Problem.

o If you put alcohol and acetone together, you have a problem. o Isoproponal

Has the same problem, if not closer • Fuel Cells

o Cannot tell the difference between methanol, ethanol and n-propanol or isopropanol

o Wayne Jones articles are about this • The man to talk to about this:

o Leo P. Reilly: dmvcounsel.com (408)283-0574 • Laryngeal Reflux Disease (LPD)

o Chronic Laryngitis o Frequent clearing of the Throat o Mucus o Sore Throad o Hoarse voice o [Note: bulimia could cause this?]

• GERD o Show that GERD is a common disease in America

25,000,000 Americans have this disease Show through experts that certain group of individuals are more prone

(45-70 years old) This is a common and significant problem. Prosecutors try to analogize this like a burp, but it is far stronger. 20% have this every day. 25% have more than once a week. Happens after you eat and after you drink.

o In a GERD case, there has to be something in the stomach. If drinking occurred over 3 hours ago, not good. An hour, is good.

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o Breath testing devices assume breath is coming from deepest part of the lungs o The roadside device doesn’t have a slope detector. These can’t distinguish mouth

alcohol coming from stomach and coming from lungs. o GERD defense: Don Gray Drewry: 5210.346.6666; dgattorney@gmail.com;

www.duioffice.com o What expert does:

Explains delayed gastric emptying • Prosecutor will say 15-20 minutes

o Note: Hiatal hernia is like GERD You can get an endoscopy of the client’s esophagus Can also do pH monitoring

• Pravo pH monitoring device • Monitor with pressure catheter

Don’t want doctor to give opinion about whether alcohol in stomach affected breath test – have another expert for that

• Increased Intra-Abdominal pressure o Pregnancy o Obesity o Bending o Straining o Coughing o [Gas? Extreme bloating? Cramping?]

• Erosive Esophogitis o Wells and Farrar studies o A.W. Jones Study (1999) – prosecution studies

10 people scheduled for surgery Overnight fast, drank to get .03 All going to be absorbed by time took test Even with this, 60-90 min. before total absorption One subject had reflux 20 min. after drinking and breath overstated blood

by .03 Even with this, they had reflux experience Jones

• DUI journal: GERD can effect breath testing – use at least 6 minutes between tests

o CDLA – San Francisco – GERD is a Dangerous Contamination o Fitzgerald, Intoxication Test Evidence (Thompson/West) Ch. 36 – 6 of 7 experts

say significant problem o Wells & Farrar – slope detector doesn’t work; compared breath to blow

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o Kaufman & Kaye; modest quantities of alcohol induce GERD even in healthy people

• Periodontal Disease o Dentist shows charts o [Note: crystal meth addicts with advanced periodontal disease may be able to use

this defense.] o Harding –4-9 mm. pockets do it o Dentures – alcohol bonds to adhesive crème and stays in mouth o Experts will say if get two same results within two minutes, accurate. Not true.

• Chronic Obstructive Pulmonary Disease o Caused by combo of Emphysema, Chronic Bronchitis and Asthma o Problems with breath testing and inhalers

• Gastric Alcohol Fermentation Syndrome o Caused by growth of bacteria or yeast o Look for:

Intestinal dysbiosis Bacterial overgrowth Intestinal candidiasis Short gut syndrome Leaky gut syndrome IBS Gastric bypass Intestinal reduction surgery Diverticulitis [Note: Crohn’s Disease may also evidence this.]

o Medical literature More common in Asian people

• Oral Thrush • How to find medical conditions:

o Use a medical intake questionnaire at the initial client interview Illness (colds, flu)

• Cough drops (e.g., Halls) Chronic Illness

• Diabetes • COPD • Intestinal surgery • IBS, LGS, SGS, Crohn’s • Oral Thrush • GERD, Heartburn • Asthma (inhalers)

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• [Eating Disorders?] • [HIV?] • [Past drug use?]

Dental health o Buy a blood glucose test kit

Be vigilant about finding previously undiagnosed conditions o Use a Medical Records Release and view medical history

• How to conclude to the jury: “How did this happen?” o Police officers catch criminals, not patients o Breath tests test criminal, not patients. o My client not a criminal, he’s a patient.

Speech II: Owen Rafferty

o Find out your client’s prior record! o After DUI, forms go to DMV

o Officers sometimes really screw these up. o VEH. C. Section 23550 and 23550.5: Felony drunk driving due to prior offenses

o VEH. C. 23550: 3 priors within ten (10) year period o VEH. C. 23550.5: Felony-Punished Drunk Driving Prior (VEH. C. 23152 or

23153) within ten (10) years or vehicular manslaughter (PC 191.5 & 192(c)(3)). o Prosecutor always files as felony and wants state prison.

o Do the preliminary hearing. Prosecutor may do poor job on direct, and you have a chance to do a great job on cross-examination.

o Get the B count ruled inadmissible o Could bring collateral attack on constitutionality of prior offenses o Could go back to rendering court for motion to vacate if problem with prior

conviction. If can knock out one of the priors to misdemeanors, no longer a felony.

o Priors have to use the same language as California. o Benefits of Residential Programs are credits

o You can release and make condition of bail. o Judge must give him credit. o 95% of the time they will give him credit. o The courts like this. o Public defenders try to do this (LAPD does a good job of this).

o Beware of 3 Strikes Law o Most judges will permit city jail programs o Riverside you can’t even go to jail on a misdemeanor o Element 4: Which act or neglect proximately causes bodily injury

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o Forbidden Act or neglected duty is the supporting offense, violation of the CFV or a wrongful act (negligence) is sufficient)

o Supporting offense cannot be VC 23152 o The wrongful act or neglected duty can be shown by D’s omission (e.g., failure to require

seatbelts); bad driving is not required. o Demurrer; if complaint or information is insufficient alleging neglected duty or forbidden

act. o Proximate Cause is sometimes an issue (hard for jury to understand)

o If injury is the direct natural and probable consequence of the act and the injury would not have happened without the act.

o Natural and probable consequence is one that a reasonable person would know that would happen if nothing unusual intervenes.

o The defendant’s act must have been a substantial factor in contributing to the result rather than insignificant or merely theoretical.

o Instructions: CALCRIM 590, 240, 2200, 2101; CALJIC 2.40, 3.41 o Again, work hard at the preliminary hearing! o