USSC declines to take up a challenge to mandatory bar dues constitutionality

The Recorder reported this morning that the USSC declined to take up a challenge to the constitutionality of mandatory bar dues:

“A divided U.S. Supreme Court on Monday declined to reconsider two decades-old decisions upholding the constitutionality of mandatory membership in state bar associations.

In the case Jarchow v. State Bar of Wisconsin, Adam Jarchow and Michael Dean argued that compelled membership and fees in their state bar violated their First Amendment speech and association rights.

The two lawyers asked the justices to overrule Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990), contending that the justices’ modern free speech decisions and the court’s recent ruling in Janus v. AFSCME, striking down union “fair share” fees, had “knocked the legs out from under” the Lathrop and Keller decisions.:

Read more at the Recorder’s link here.

Today in 1963 Martin Luther King, Jr. gave his “I Have a Dream Speech” – The #1 speech of the 20th Century

On this day in 1963, Martin Luther King, Jr. gave his famous I have a Dream speech. You may not know this, but the part of his speech where he launched into beginning his sentences with “I have a dream” was not planned. He had used those phrases in the past, but they were not written into this speech. He was inspired by the crowd and went with it. And boy did he go with it.

And it has been classified as the #1 speech of the 20th Century. For good reason.

His use of repetition was so effective that the speech is remembered for, and titled by, those passages and that phrase. He actually utilized a variety of fantastic rhetorical devices throughout his speech, including alliteration and other forms of repetition.

If you’d like to hear it, or read it, you can find MLK’s I Have a Dream Speech here at

If you would just like to remember that specific  passage though, I’ve copied it here (remember this came at about 2/3 of the way through his speech):

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

I always reference this speech when I teach my Presentation Skills for Attorneys seminars. Once, after one of my programs, an attendee came up to me and told me about a book his son had written discussing the speech. It is a terrific book and I recommend it – a very interesting historical look at the speech! The book is called “the Dream: Martin Luther King, Jr. and the Speech that Inspired a Nation.” You can find it on Amazon (of course) and I am sure it’s in bookstores as well.

The speech is one of my favorites of all time. Every single person in all of my presentation skills courses (thousands at this point) have heard the phrase and know what it means – we always hear it on the radio, we probably read about it back in school. But when is the last time you listened to the whole thing, or read it the whole thing, if ever?

Take the time to do it now. It’s worth it.




Court says Tinder doesn’t get to charge older customers more

Good news for Tinder users over the age of 30. Tinder – the swipe one way or the other if you are interested in someone (or not) dating app – just got smacked for charging older customers more than those under thirty for Tinder’s premium services.

We just found this blurb Winston & Strawn attorney Ryan P. Glove on the new California Lawyers Association’s Advertising law related Blog and wanted to pass it along:

A California Court of Appeals recently found that Tinder’s practice of charging users over the age of 30 an additional $10 for premium services violates the Unruh Civil Rights Act and the Unfair Competition Law. The court rejected Tinder’s argument that its pricing model was not discriminatory because it based pricing on market research which shows that users under 30 have less means to pay for premium services and therefore require a discount. Although certain age-based pricing structures have been upheld in the past, the appellate court held that Tinder’s pricing model is discriminatory because it employs an “arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users,” and Tinder did not provide compelling public policy justifications for the alleged discriminatory pricing.

Goodbye Beranton Whisenant Jr. You were one of a kind.

I am heartbroken to write this post.

Last Wednesday, May 23rd, Federal Prosecutor Beranton Whisenant Jr. passed away in Hollywood Beach in Florida. Beranton had just recently left Foley & Mansfield to become a federal prosecutor.

Beranton was only 37.

He spoke at every one of our litigation programs since 2013, no matter how many we had each year. When someone speaks at your programs that often, you get to know them a little and you get to respect them a lot. Beranton was one of those attorneys that was completely dedicated to creating a great presentation and handouts to go along with it. He probably didn’t have the time to do it, as a partner at a major law firm, but he did it anyway.

And just as important, he was incredibly nice, super smart, and always happy when you saw him, no matter how busy.

The attorneys who attendee our programs loved him – always writing wonderful things about him when they let us know what they thought of our course. The other speakers with whom he would share the dias also spoke very highly of him and in fact it was one of those speakers who let me know last Thursday about Beranton’s death.

I very much enjoyed working with Beranton and having him speak at our seminars.

Any time I would shoot an email around to past speakers inviting them to speak at planned, or potential, seminars, Beranton was one of the first to reply with a “sign me up… for all of them” email. And any time I asked speakers for their recommendations for other speakers I should invite – Beranton would send over a list of four to ten possible attorneys or judges for me to invite – in South Florida, Orlando, even Jacksonville – or he’d just invite them himself and introduce us.  Many of the attorneys and most of the judges who have spoken at our programs over the past few years were recommended by Beranton.

In fact, he sent over so many recommendations, and introduced me to so many people, I finally just created a special folder for the names Beranton shared with me.

Beranton even co-wrote a chapter on Opening Statements in my public speaking for attorneys book.

And he was so involved in various legal committees and groups it seemed like he knew everyone. I was looking forward to him becoming a judge one day and speaking in that capacity as well. He would have made an amazing judge.

We’ve had more than 1500 attorneys and judges speak at our programs over the past 13 years, and some of them make such a positive impression that everyone they meet has great things to say about them – – my audio recording guy, my on-site East Coast representative, the person who puts together my speaker lists and emails, and all of the speakers who interact with them, not to mention those who attended our programs as I mentioned above.

All of my staff, and most of the outside folks I use to make a seminar happen, know of and remember Beranton and all were shocked and saddened to hear about his death. Our hearts go out to his family.

An obituary can be found at this link. He is survived by his wife, Ebony, and three young children.

I don’t even know how to end this post, only to say goodbye Beranton.

You were too young to die and you were well loved by everyone in my office. I will miss you.

Justice Paul Arthur Turner has passed away

I am very saddened to report that Presiding Justice Paul Arthur Turner of the California Court of Appeal District Five has passed away after a battle with liver cancer.  Justice Turner was a brilliant and kind man.  I remember him well as he participated in several of our appellate programs over the years and I had the honor to meet him and work with him and our other appellate speakers for those programs.  Justice Turner will be missed by all.  His obituary can be found at this link.  Services will be held May 31st at 11 am at the Rolling Hills Covenant Church, 2222 Palos Verdes Dr. North, Rolling Hills Estates, CA 90274.  He will be buried in his family’s plot in Kentucky.

– Faith

Congratulations to the Hon. Kira Klatchko

Congratulations to one of our favorite speakers, and my friend, Judge Kira Klatchko, sworn in to serve on the Riverside Superior Court just a bit ago!

Photo: Judge Klatchko is second from the right in the photo. I’m not quite sure how I (Faith) ended up in the middle of this photo – it was Judge Klatchko’s day! That’s Lead Appellate Court Attorney for the California Appellate Court Pablo Drobny on the far right and on the left is frequent speaker and appellate attorney Extraordinaire, Ben Shatz with his wife Meena Patel.

Previously, Judge Klatchko was a partner at Lewis Brisbois and handled both state and federal appeals arising from all areas of civil practice for clients as varied as cities, businesses and families. She was vice chair of the firm’s national Appellate Practice Litigation group. And she has served as the President of the Riverside County Bar Association.

Judge Klatchko is also an Appellate Law Specialist, certified by the State Bar of California Board of Legal Specialization.


Four Classic Ways to Organize Your Speech

Simply put, there are many ways to organize thoughts, ideas and themes.  Pick an organizational pattern that is right for your presentation.  Here are a few choices:

  • Sequential/chronological: Does your presentation move through a series of points that can be organized in a sequential or chronological pattern?  If so, do not attempt to jump around and explain your points non-sequentially or your audience can easily get lost.  If the points you wish to make or the story you have to relate occurred one at a time, stick to the chronology.  Your audience will follow right along with you.  It’s a lot like that two-page instruction manual that comes with your new electronic device and always goes through each step in sequential order.  Some topics just require this form of organization to be understood: What happened first? What happened second? Then what happened?  And sometimes you can start with the end and work your way back, but you definitely can’t skip around if a topic really needs a sequential presentation.
  • Categorical/topical:  Your main points may be most easily presented by category or topic.  Clearly state what you’re going to be covering during the course of the seminar or speech, give the audience a means to remember it and then proceed exactly as you described.  (For heaven’s sake don’t tell them you’re going to talk about Earth, Wind and Fire and then present it as Fire, Wind and Earth.  Stick to the categories you establish from the get-go.)
  • Compare and contrast: When making comparisons, be sure the comparisons are valid.  Apples are not oranges.  Don’t make the mistake of mixing up the two.  If you want to compare raising a child to raising a domestic animal, you run the risk of alienating the parents in the room.  (Or the pet owners, for that matter.)  But if you hit upon a comparison that works, by all means use it.  The same rule applies to contrasts.  Baseball is similar to football in that both are sports, both use a ball and both employ a points system.  In that way, you can compare the two.  But there are also many ways you can contrast them and examine the differences.  (George Carlin did this famously and to great effect.)  Using comparisons and contrasting examples is a wonderful way to hammer home an important point.
  • Problem — solution:  This is a simple way to both organize and present a speech cleanly and with little digression:  Set up a problem and then offer a solution (or several solutions) to that problem.  Be sure that the problem is one common to most members of the audience (the less obscure you can be the better) and try to offer novel or clever solutions rather than merely obvious ones.  You don’t want to talk down to them.  Within the problem — solution framework, you might, for example, discuss the causes and impacts of problems (such as gambling compulsions or addictions), review past or outmoded solutions that have failed in the past and, finally, provide a new or time-tested solution that is most likely to work.

Motions for Summary Judgment

Occasionally we share parts of or written materials created by our speakers for our programs. Below is an excerpt on Motions for Summary Judgment from a long time speaker who also happens to be a federal court clerk at the United States District Court in California.  

Our blog readers can take 50% off our Superior Court and Federal Court Boot Camp audio packages with the coupon code 50MSJ

Motions for Summary Judgment and Partial Summary Judgment

The biggest difference between state and federal court with respect to motions for summary judgment is that a motion for summary judgment, if well-taken, is much more likely to be granted in federal court than state court.  Because federal judges have their own law clerks, they are able to devote more time to motions for summary judgment, which is one of the reasons they tend to be granted more.  However, because federal judges have more time and resources, they will also figure out if your motion for summary judgment is meritless.  Therefore, if you are going to file a motion for summary judgment in federal court, you want to do the best job possible – it is a time-consuming motion for attorneys to draft, it is time-consuming for the Court, and it is expensive for clients.

Legal Standard

In federal court, a party may move for summary judgment on a claim or defense, or a part of a claim or defense (partial summary judgment). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” FRCP 56(a).  In ruling on a motion for summary judgment, the Court’s role is not to weigh the evidence (or make credibility determinations), but only to determine if a genuine issue of material fact exists.  .  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  In determining if any genuine issues of material fact exist, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party.  Matsushita Elec. Indos. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

A genuine issue is one in which the evidence is such that a reasonable fact-finder could return a verdict for the non-moving party.  Anderson, 477 U.S. at 248-49. A material fact is a fact that might affect the outcome of the suit under the governing law.  Id. 

The moving party has the burden of informing the Court of the basis for its motion for summary judgment, and identifying the evidence, if any, “which it believes demonstrates the absence of a genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). That evidence can consist of the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits and declarations.

When the moving party does not have the burden of proof at trial on a dispositive issue, the moving party may meet its burden for summary judgment by showing an “absence of evidence” to support the non-moving party’s case.  Id., at 325.

The non-moving party is required by Rule 56(e) to go beyond the pleadings and designate specific facts demonstrating that there is a genuine issue for trial.  Id. at 324. Conclusory allegations unsupported by factual materials are insufficient to create a triable issue of fact so as to preclude summary judgment.  Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). However, to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that the “claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”  First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 290 (1968).

The Timing

Motions for summary judgment are governed by Federal Rule of Civil Procedure 56, and the time for bringing a motion for summary judgment is “any time until 30 days after the close of all discovery.”

However, this deadline will almost always be different, so, as always, you need to check the Local Rules, your judge’s local rules, and your case’s Scheduling and Case Management Order.

Motions for summary judgment can be brought as soon as you have enough uncontroverted evidence to establish your case. However, under Rule 56(d), if discovery has not yet closed, the opposing party can claim that “it cannot present facts essential to justify its opposition.” If the Court finds the opposing party’s claims meritorious, it can defer consideration of or deny the motion or allow additional time for discovery. However, Rule 56(d) requires the filing of an affidavit or declaration that demonstrates the “specified reasons” why the opposing party cannot present the facts essential to justify its opposition.  Thus, conclusory statements in the brief are not enough.

And, do not forget that Local Rules may require you to meet and confer prior to filing a motion for summary judgment.  See, e.g., Central District Local Rule 7-3.

Drafting Your Opening, Opposing, or Closing Brief

1.     Follow the standard format for a motion: Introduction, Factual and Procedural History, Argument, Conclusion.

2.     The introduction should tell the Court your side of the story in summary format, including why you win under the law and as a matter of fairness.

3.     Have a theme that is presented in the introduction, and return to it throughout your brief(s).

4.     Be organized! Make the Court’s job easy by making the facts and law contained in your brief easy to read, understand, and find. Headings that are meaningful are key.

5.     Lead with your strongest argument.

6.     But, be sure you deal with any contrary authority. Better to lose a motion than to lose your credibility with the Court. Once it’s gone, it’s extremely difficult to regain.

7.     Be an advocate for your client, but do not be nasty or unprofessional.

8.     Start your Opposition as soon as possible, even before you receive your opponent’s Opening Brief. The Opposition and all the supporting evidence is incredibly time consuming to draft and organize, and you may only have seven days in which to do it.

9.     Some judges and law clerks really do read the Reply first, so do not simply cut and paste from your Opening Brief. The Reply is a huge opportunity to tell the Court what your opponent failed to address/argue or why their evidence and argument is inferior to yours (and, in either case, why you win).

10.  Other judges and law clerks read the Statement of Undisputed Facts/Separate Statement (where required) first. Follow the format required, if one is given. Otherwise, make it easy-to-read for the Court. In addition, have as few facts as possible in your Separate Statement – not every fact you use in your brief must be in the Separate Statement, only the material facts that you are relying upon.

Tips Regarding Motions for Summary Judgment

1.     Generally, all evidence must be provided to the Court, even if previously submitted in connection with another motion.

2.     Organize your evidence as if for trial – tabs, labels, table of contents, etc. And, follow all the Local Rules and the judge’s local rules, no matter how silly they seem – they matter to your judge!

3.     Do not submit blanket or boilerplate objections – this is a waste of time and resources.

4.     Lodge a proposed order (Check Local Rules).

5.     Lodge a proposed judgment (Check Local Rules).

6.     If the other side files a motion for summary judgment and you agree that the issue is a matter of law, consider a cross-motion and a stipulated set of facts.

7.     Do not attempt to sidestep the page limitation by filing multiple summary judgment motions or using crazy margins and/or font sizes – ask the Court for more pages if you really need them.

8.     Do not assume you will have oral argument.

9.     If you do have oral argument, be prepared, be prepared, be prepared.

10.  Know the deadline for filing your motion for summary judgment, which is different than the last day for it to be heard.

Creating an Outline

Creating an Outline

Creating an outline can help you in several ways, but perhaps the most important is this: A well-crafted outline is all you need at the lectern to deliver a winning presentation. A truly well organized outline will allow you to sail through your speech without a hitch.

There are several wonderful software tools you can use to create outlines (Scrivenor, Evernote and MindMap spring to mind), but they are not essential. If you can put together an effective outline without digital assistance, do it. But don’t feel bad if you need the help. (Full confession: I’ve used these tools myself.)

The trick to creating an effective outline is to develop one that has just the exact amount of information you need – no more, no less. Put too much verbiage in your outline and you risk writing something you have to read verbatim, right off the page (as we discussed back here, reading a speech verbatim has a lot of drawbacks). Put too little on the page and you’re likely to forget some important point or other that you meant to make.

Be economical, but not stingy. Write in full sentences when you have to, bullet points when you don’t. Remember the acronym PEP: Point Explanation/Example Point.

Don’t Forget to Practice, Practice, Practice!

And, of course, rehearse. This cannot be emphasized enough. If you do not practice out loud, with your outline by your side, you will run into enormous trouble when the time comes to actually deliver your presentation. You will hem and haw, pause awkwardly or get completely lost. There is only one way to avoid these traps: PRACTICE.

New Featured Speaker Honey Kessler Amado

Honey Kessler Amado is our latest Featured Speaker!

Honey has spoken at our appellate programs several times in the past. Attorneys attending our programs love her insight and teaching style.

Not only that, but she is incredibly well respected at the court. I will never forget the time that a long-time staff attorney for the CA Appellate Court told me that the best appellate argument they ever heard was by Honey.

Ms. Amado has been a Certified Appellate Law Specialist, certified by the State Bar of California, Board of Legal Specialization, since 1997.  In addition to representing clients in the review courts, Ms. Amado serves as a consultant on trial court issues or cases anticipated for appeal, reviews cases to advise on the merits for appeal, and assists with writing and editing complex memoranda of points and authorities and briefs.

Ms. Amado currently sits on the Appellate Courts Committee of the Los Angeles County Bar Association.  She also serves on the voluntary settlement and mediation panel of the California Court of Appeal, Second District.  For a number of years, she sat on the Editorial Board of Los Angeles Lawyer magazine, having served as Chair of the Editorial Board for the 2000-2001 term.  Ms. Amado has authored a number of articles on legal issues relating to appellate law or family law.  This includes co-authoring a chapter on Hague procedures in the United States in international custody disputes for an international treatise.  She is a frequent speaker and panelist on various law-related issues, having presented for the American Bar Association, the California State Bar, the American Academy of Matrimonial Lawyers, the Los Angeles County Bar Association and other local bar associations, and at a number of local study groups.  In addition, she has been a guest lecturer in various classes at California State University, Northridge, and was a visiting, adjunct professor at the Faculty of Law at the University of Osijek, in Osijek, Croatia, in Fall 2012.

Ms. Amado has spoken previously at our appellate program The Complete Appeal and has received top reviews from many of our attendees for her handouts and teaching style.

“Excellent help to an appellate practitioner.” – Gary Bostwick, Esq.

“I thought the session was very informative and helpful.” – Richard Rahm, Esq.

“Helpful tips on what to include and how to formulate briefs.”

Ms. Amado will be speaking at our upcoming appellate program in Los Angeles – 2nd Annual Appellate Conference.  Don’t miss this opportunity to hear from one of our most accomplished speakers.