Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.

 

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Nick Callahan is our Latest Featured Speaker!

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Our latest featured speaker is Nick Callahan from Barack Ferrazzano Kirschbaum & Nagelberg!

Nick will be on the faculty panel at our upcoming The Art of Jury Selection: Getting it Right in Chicago on November 29! This is Nick’s first year speaking with us, and we can’t wait for his presentation!

Nick is a trial lawyer. He has tried more than 30 jury trials, bench trials and arbitrations, including nine jury trials as lead attorney. He splits his time between the Firm’s Chicago and Minneapolis offices.

Nick’s practice is national. In recent years he has handled cases in 15 states and appeared in proceedings conducted abroad. Clients often come to him when needing assistance with disputes involving finance, accounting, valuations, securities, real estate, corporate governance and shareholder claims, merger and acquisition claims (both pre- and post-closing), bankruptcy litigation, and internal and government investigations. He regularly presents Continuing Legal Education classes to other lawyers on these topics.

Nick’s clients range from publicly-traded companies and large investment funds to individuals, and he represents them in cases ranging from bet-the-company class actions to smaller disputes. Many of those he advises are in the financial industry, including banks, private equity firms, hedge funds, mortgage companies and investment advisers.

For jury trials first-chaired by Nick, many times jurors have ranked Nick the highest rating of “excellent” in all categories on anonymous juror questionnaire forms supplied by the court.

Nick rejoined the Firm in 2015 and helped open its first satellite office, which is located in Minneapolis, his hometown where he had moved several years before. He is married with three young kids who, like him, are loud.  When his kids are older he plans on resuming hobbies he used to enjoy: international travel, attending outdoor music shows, scuba diving and spontaneous adventures.

Marijuana and Banking – Never the Twain Shall Meet. Or will they?

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One of our upcoming Recreational and Medical Marijuana Law and Business in California speakers, Dante Tosetti, wrote this recently published paper on Federal guidance to enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses: The distinctly separate federal approaches between marijuana-related businesses and marijuana-related business banking.

And if you’re interested in cannabis law at all, or cannabis businesses, you know that banking is one of the biggest issues facing those in the industry. And this includes attorneys who represent cannabis related businesses. After all, if the businesses have to operate as all cash businesses, that means they have to pay you in cash as well. And that means, if you are an attorney or anyone else, you have to follow a host of regulations to ensure you accurately report the income and avoid being accused of money laundering. In other words – banking is a central challenge to cannabis businesses, and those who serve them.

The following is the “abstract” segment of the paper, but you can read the full paper online here.

“In general, state licensed marijuana related businesses (“MRB”) have difficulty obtaining standard banking services from financial institutions since marijuana remains illegal under federal law. The prevailing notion that additional federal action is necessary to open banking services to the marijuana industry is inappropriate. Since MRB banking is inherently high-risk, the argument for additional legal or regulatory leeway to encourage MRB banking is not a sound solution.

Federal guidance is in place for all state and federal chartered banks and credit unions to provide banking services to MRBs. A limited number of financial institutions follow the federal guidance and offer MRB banking services in an open and transparent manner, yet the number of such financial institutions does not meet the overall demand of the marijuana industry. Reinforcement of the federal guidance and awareness of the current best practices within marijuana banking could encourage additional financial institutions to service MRBs. As more financial institutions make the business decision to enter MRB banking under existing regulatory expectations, greater transparency of the marijuana ecosystem will be made available to all stakeholders.” – Dante Tosetti

We hope you’ll join us at the program on November 1-2, 2018. If you miss it, don’t worry, you can purchase the audio recording package here.

Meghan Loisel is our Latest Featured Speaker!

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Our latest featured speaker is Meghan Loisel from Rudy, Exelrod, Zieff & Lowe LLP!

Meghan will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! This is Meghan’s first year speaking with us, and we can’t wait for her presentation!

Ms. Loisel advocates on behalf of employees in individual and class action litigation in a range of employment matters. She has experience with discrimination, harassment, retaliation, failure to accommodate, and constitutional claims.

Before joining Rudy, Exelrod, Zieff & Lowe LLP, Ms. Loisel was a deputy county counsel for Santa Clara County. She defended the County and its employees in employment, civil rights, and tort cases. She also litigated complex affirmative cases on behalf of the County and the People of the State of California, and was a member of the trial team who litigated a public nuisance action against former lead paint manufacturers, People v. Atlantic Richfield Company. Ms. Loisel also litigated civil rights cases as a fellow at the American Civil Liberties Union’s Reproductive Freedom Project in New York City.

Ms. Loisel graduated from New York University School of Law where she was the symposium editor for the Review of Law and Social Change. During law school, she worked as a law clerk for the Legal Aid Society Employment Law Center and the Bronx Defenders. Ms. Loisel received her undergraduate degree in History and Government from the University of Texas at Austin.

Top Tips For Demurrers

Steven Ragland, a partner at Keker, Van Nest and Peters has spoken at our annual California Superior Court Boot Camps almost every year since 2010.

At one of our prior Superior Court Boot Camps, Steven provided this terrific tip sheet for handling Demurrers. It contains suggestions regarding what you need to think about when filing a Demurrer, when writing the brief, and other things you must consider, including arranging for the court reporter, checking the tentative ruling, and preparing the order.

If you’d like to attend our 13th Annual Superior Court Boot Camp, coming up on November 8th in San Francisco, please go here. You can also pre-order the audio package for the San Francisco program, or purchase the audio package for the program just held in Los Angeles on October 12th, at the link provided.

But register quickly (if you see this post before November 8th, 2018) because we’re almost sold out in San Francisco.

Enjoy!

Tips for Demurrers:

I.  Initial Considerations – consider whether you should file a demurrer

A.  Defects in plaintiff’s legal theory must appear on the face of the complaint itself, or through judicially noticeable matters

B.  Only file if it serves a litigation purpose

1.  Expensive for client

2.  Plaintiff will almost certainly get leave to amend

3.  Demurrer will educate adversary

4.  Might result in a stronger complaint

C.  Read (or re-read) Weil & Brown, CCP, and local rules before drafting

D.  Get more time from Plaintiff if you need it (check rules for when stipulation is enough and when you need ex parte application/court order)

II.  Brief-writing considerations

A.  Have a Theme. Really, have a theme.

1.  After striking out before another tribunal, plaintiff tries its hand here

2.  No good deed goes unpunished

3.  A deal is a deal

4.  Here we go all over again (especially for successive demurrer)

B.  Make the Intro count

1.  The Introduction should tell the whole story in summary form

2.  It should tell the Court why you should win—both under the law and as a matter of justice/fairness

3.  After reading Introduction, Judge/law clerk should be convinced you win

C.  Organization matters

1.  Use headings/sub-headings

2.  Headings should be declarative sentences

a.  “This Demurrer should be sustained because the Complaint neither sets forth the material terms of the contract nor attaches the purported contract.”

b.  “The Complaint fails to join indispensable parties.”

c.  “This Court lacks subject matter jurisdiction because Federal Courts have exclusive jurisdiction over cases requiring resolution of patent law issues.”

3.  Headings should tell your entire story

a.  The Judge should be able to scan the table of contents and remember exactly what you are arguing

b.  If fact section is long, break it up

(i)  Your fact section headings can preview your arguments

4.  Spend the time needed to organize arguments

a.  If brief is not easy to follow, you’re more like to lose

D.  Reveal and deal with contrary authority

1.  Always address and distinguish all of your opponent’s primary cases (and secondary to, if possible)

2.  Don’t assume opponent won’t find the cases that go against you

3.  Candor is crucial

a.  Be honest about the hurdles you face, then explain how you clear them

b.  Evasiveness and misstatements of the law erode your credibility, and can lose your motion (never jeopardize your reputation)

E.  Lead with your strength

1.  If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength

2.  If you have one really solid basis, don’t waste space/credibility with marginal arguments

3.  If opposing, take on defendant’s strongest argument first and eviscerate it

4.  On Reply, you don’t have to follow opposition’s organization

F.  Every brief should be a stand-alone document

1.  Write the Reply/Opposition so it makes sense even without reading any other brief (or the Complaint)

G.  Miscellaneous

1.  Don’t be nasty

a.  Opponent is wrong, not “lying” or “conniving” or “slimy”

2.  If you see an adjective or adverb, delete it (most of the time)

3.  Short, declarative sentences; eliminate passive voice

III.  Arrange for a Court Reporter

A.  Coordinate logistics with your adversary and agree to share costs

B.  Even if you lose, what’s said at the hearing may be useful to your client (e.g., successive demurrers, limiting / narrowing discovery, holding plaintiff to its theory, crystallizing issues for summary judgment)

IV.  Check the tentative ruling

A.  Check it as soon as it comes out (check local practice)

B.  Don’t forget—set an Outlook reminder

C.  Notify opponent if you intend to contest—check rules for deadlines and requirements for notice

D.  If you win tentative, sit on your hands

1.  Do not contact opposing counsel to notify (or gloat)

2.  Tentative will be adopted if no one contests

3.  Do not appear at hearing unless other side tells you it will contest—If opponent shows up at hearing without giving you notice, the court will not permit argument and tentative will be adopted…unless you show up

E.  If you lose, go argue like hell (but expect to lose)

1.  Always be respectful, but tell the Court why the tentative is wrong.

2.  Don’t just repeat what you said in your briefs

3.  Limited to issues raised in papers, but bring a fresh perspective and nuance

V.  Prevailing party prepares order

A.  Check rules for timing, details

B.  Be sure to set deadlines for Answer/Amended Complaint in the order if you want to deviate from standard timing provisions

C.  Might be able to get opponent’s sign-off of proposed order at hearing

Justice Entrepreneurs Project’s Pricing Toolkit

At Pincus Professional Education, we are committed to helping educate attorneys who work for legal aid firms and serve low-income populations. One of our partners in this effort is the Chicago Bar Association’s Foundation (Chicago Bar Foundation). Their Justice Entrepreneurs Project (JEP), is a small business incubator that helps newer lawyers start innovative, socially conscious law practices serving low and middle income Chicagoans. We wanted to share their Pricing Toolkit with you as they are continually providing good resources for attorneys.

From the Chicago Bar Association’s Foundation website: One of the core principles for the JEP program and JEP lawyers is to make legal assistance more affordable and transparent to low and moderate income people by offering fixed fees and flexible representation options to potential clients. The toolkit came about after the CBF discovered in the early stages of the JEP program there was a dearth of practical resources for lawyers serving the consumer market who seek to price their services by using arrangements other than the billable hour.

Thanks to a dedicated team effort of partners, volunteers, and staff, this toolkit is “Version 1.0” to help JEP lawyers and other lawyers who are interested in pricing their services to be more affordable and transparent. The toolkit also contains a two page summary matrix that provides a brief overview of various alternative pricing options that can be effective in the consumer market.

A more advanced version of the toolkit will include an appendix with sample forms and templates.

Jiyun Lee is our Latest Featured Speaker!

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Our latest featured speaker is Jiyun Lee from Folger Levin LLP!

Jiyun will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Jiyun first spoke for us at our 12th Annual California Superior Court Boot Camp, where seminar attendees appreciated her precise delivery. Welcome back, Jiyun!

Jiyun is a commercial litigator with extensive experience in financial litigation, contract disputes, trade secret misappropriation, computer forensics, advising and defending public accommodations under the Americans with Disabilities Act, and defending employers in labor and employment disputes, including class action lawsuits alleging violations of wage-and-hour laws, ERISA, and the WARN Act. She has represented financial institutions, rental car companies, law firms, hotels, technology companies, and non-profit organizations as both defendants and plaintiffs.

Jiyun is an experienced trial lawyer who has conducted trials in both federal and state courts, as well as evidentiary hearings before courts and administrative agencies. She has extensive experience handling claims involving injunctive relief, and has successfully obtained preliminary injunctions and specific performance decrees on behalf of clients in contractual and intellectual property disputes.

Since 2011, Jiyun has served as a volunteer mediator for the United States District Court for the Northern District of California.  In 2014, Jiyun served as a Commissioner of the California State Bar’s Commission on Judicial Nominees Evaluation, and is currently a member of the Board of Directors of Star Academy, a private school in San Rafael, California, for students with learning differences.  Jiyun is an active member of the Asian American Bar Association of the Greater Bay Area and the Korean American Bar Association of Northern California.

Jiyun obtained her law degree, cum laude, from Harvard Law School in 1992, and received her B.A. in Politics and Legal Studies with Honors, Phi Beta Kappa, in 1989 from the University of California, Santa Cruz. She is a member of the California Bar.

Patrick Gregory is our Latest Featured Speaker!

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Our latest featured speaker is Patrick Gregory from Shook, Hardy & Bacon!

Pat will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Pat first spoke for us at our Legal Editing: Got Skills? seminar, where attendees raved about his presentation! Welcome back, Pat!

For over 20 years, Pat’s emphasis has been on complex litigation at both the trial and appellate levels, including work on tobacco litigation, automotive cases, complicated contractual disputes, business tort claims, environmental litigation, and antitrust matters. Pat’s innovative legal analysis, writing and advocacy have frequently led to the dismissal of “bet the company” cases long before they reach trial. Pat has also contributed to the successful defense of these cases at trial by creating compelling case-specific motions in limine, developing creative case strategy and themes, arguing for appropriate jury instructions, and advocating for directed verdict and additional limits on the scope of plaintiff’s evidence, claims, damages, and arguments to the jury. He has contributed to several jury research exercises and legal strategy projects performed on behalf of firm clients. In addition, Pat has advised clients on eDiscovery and domestic and foreign data protection issues.

Pat is an active member of SHB’s Professional Development Committee and has often presented at firm seminars on a variety of topics, including punitive damages, deposition strategy, legal writing, state and federal motion practice, and summary judgment oral advocacy. Pat helps organize and often presents at an annual joint CLE for the firm’s San Francisco and Orange County offices and has helped devise California-specific in house CLEs for those firm offices. Pat also participates as a judge in regional and national oral advocacy competitions in the San Francisco Bay Area, and is an active participant in the Ninth Circuit Court of Appeals’ pro bono program.

Pat is a member of the firm’s Global Product Liability Group, Antitrust Practice and Appellate Practice. Pat also assists the firm’s Public Policy Group with amicus curiae briefing before the California appellate courts.

Barbara Adams is our Latest Featured Speaker!

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Our latest featured speaker is Barbara Adams from Clark Hill LLP!

Barbara will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Barbara first spoke for us at our 2013 Legal Editing seminar, and has returned to speak at our 9th Annual CA Superior Court Boot Camp, 2015 Jury Selection seminar, and our 12th Annual California Superior Court Boot CampSeminar attendees have raved about her presentations, and we can’t wait to have her back!

Barbara R. Adams specializes in the defense of toxic tort and product liability litigation involving asbestos, lead, food toxins, underground tanks, and other chemicals in personal injury, property damage, and long-term/latent injury litigation actions. Ms. Adams has completed numerous jury trials in most of the Bay Area Superior Courts, otherwise successfully resolved complex cases, and has participated in the development of complex litigation rules for the Superior and Federal courts.

Ms. Adams also has significant experience and expertise in appellate law. She has filed and defended appeals, writs, and petitions before the California Courts of Appeal, the California Supreme Court, and the Federal Courts of Appeal. Ms. Adams handles appeals in which she has not been involved in the underlying litigation.

You can read Ms. Adams’ views on toxic tort and chemical exposure issues at her blog, Toxics Defense.

Ms. Adams received her B.A. in Political Science from California State University at Fullerton in 1977 and her J.D. from the University of Santa Clara School of Law in 1981. She is admitted to practice in California, the U.S. Ninth Circuit Court of Appeals, and the U.S. District Court for the Northern and Eastern Districts of California.

Dante Tosetti is our Latest Featured Speaker!

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Our latest featured speaker is Dante Tosetti!

Dante will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! This is Dante’s first year speaking with us, and we can’t wait for his presentation!

Dante Tosetti is a regulatory compliance and risk management consultant to financial institutions. He has over twenty years of risk management experience within private equity, the Federal Reserve and commercial banking. Dante has been covered by the Wall Street Journal, American Banker, Fortune, Geekwire, Reuters PE Hub, and Credit Union Management Magazine for his expert analysis on banking the nascent cannabis industry in a safe and sound manner. He has presented his views on banking marijuana related business at the Power of Collaboration Global Summit at the United Nations in New York and Innovation Project at Harvard University in Cambridge. He also presented at the Cannabis Banking Working Group convened by California State Treasurer John Chiang, the California Bankers Association’s Directors Conference and Bank Counsel Seminar, and the Trigild Fall Conference.

Dante is currently a Regulatory Liaison for a bank which was under a BSA related public enforcement action. Dante was formally recognized as “instrumental” to the bank’s successful release from the public enforcement action. Dante is also consulting for the City of Oakland, City of Berkeley, City of Richmond, and County of Alameda’s feasibility study for a public bank initiative. He consulted to a lobby group pursuing marijuana related banking legislation in the State of Colorado. He has been a regulatory advisor to a marijuana related Fintech startup. He was an invited guest to the Federal Reserve Bank of San Francisco’s cannabis affinity group to discuss marijuana banking policy.

Prior to his independent practice, Dante was the Director of Treasury Compliance with Privateer Holdings, Inc. a global private equity firm shaping the future of the legal cannabis industry. As Director, he oversaw the firm’s compliance with laws and regulations, the Department of Justice Cole Memorandum and corresponding FinCEN guidance. He fostered and established first of its kind relationships with banks, credit unions, insurance providers and merchant service providers in the United States, Canada and the EU. Prior to Privateer, Dante was a Bank Examiner with the Federal Reserve Bank of San Francisco where he led and supported safety and soundness examinations of community, regional, and large banks throughout the nine western states. He was responsible for the evaluation of a bank’s financial condition and operating performance, including capital, asset quality, earnings, liquidity and sensitivity to market risk, assessment of management performance and the effectiveness of risk management practices and control environment, including internal audit, accounting, and credit review. Other roles included review of the investment portfolio, CRE concentrations, and BSA/AML compliance. He received his credentials from the Federal Reserve Board of Governors as a commissioned Bank Examiner. Prior to the Fed, Dante was a commercial banker with credit related responsibilities including underwriting, elationship management, portfolio management, and distressed debt.

Dante earned a degree in Business Administration from the University of San Diego and is a graduate from the Pacific Coast Banking School at the University of Washington. He resides in Northern California.