Author Archives: Faith Pincus

Cryptocurrencies Draw California Lawmakers’ Attention

Posted on by Faith Pincus
26 Feb

Cryptocurrencies like Bitcoin have been around for years, however, lately they’ve been a hot topic in the news and among attorneys.

This blog post from Jennifer Post, of Thompson Coburn, sheds some light on the issue. Jennifer will be speaking at our Cryptocurrencies, Blockchain & Initial Coin Offerings seminar in June 2018.

Virtual currencies remain largely unregulated, as well as the activities which support them (exchanges, wallets, etc). However, due to sudden interest from investors and the creation of several new cryptocurrencies, state lawmakers are beginning to consider how they should regulate these activities.

California has introduced the Virtual Currency Act (A.B. 1123), which would require those involved in a “virtual currency business” in California to first register with the state’s Commissioner of Business Oversight. A.B. 1123 defines a “virtual currency business” as any business “maintaining full custody or control of virtual currency in this state on behalf of others.”

Learn more by reading Jennifer’s post and at our upcoming Cryptocurrencies, Blockchain & Initial Coin Offerings seminar in June 2018.

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

Posted on by Faith Pincus

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.

Ian Samson and Paul Traina are our latest Featured Speakers!

Posted on by Faith Pincus
07 Feb

Our latest Featured Speakers are Ian Samson and Paul Traina of Stalwart Law Group!

Ian Samson is an experienced litigator and trial lawyer who will speak at our upcoming Mastering the Deposition seminar in Los Angeles, on February 23rd, 2018.

Ian first spoke for us back in 2016 for Federal Court Boot Camp and has been a repeat speaker for both federal and superior court boot camps since. Seminar attendees rave about his insight, clear examples, and knowledgeability.

Ian represents clients in catastrophic injury matters, whistleblower litigation, class actions, professional liability cases, and commercial litigation. Innovative, tireless, and always willing to go the extra mile for his clients, he has gone toe-to-toe with some of the most highly-regarded law firms in the nation.

Equally comfortable arguing a specific point of law to a federal court judge as he is explaining the big picture to a state court jury, he uses every aspect of his experience to get the best possible result for his clients. Ian is a member of the Consumer Attorneys Association of Los Angeles, Consumer Attorneys of California, and Public Justice.

And Paul Traina, an experienced, fiercely competitive litigator and trial lawyer, will also speak at our upcoming Mastering the Deposition seminar.

Paul first spoke for us a while back at our Wage & Hour Class Action seminar, and has returned to speak at many of our litigation related seminars year after year, due to his great evaluations.

Paul has practiced law for the past 25 years. He spent his first five years representing automobile manufacturers and insurance companies, and the last twenty years representing consumers on a pure contingency basis. Paul has obtained verdicts and recoveries for his clients totaling over 3 billion dollars. He has, and continues to represent clients in matters involving catastrophic injuries, defective products, whistleblower litigation, class actions, professional liability cases, and business/commercial litigation.

Paul is a frequent guest lecturer at Loyola Law School’s Trial Advocacy Class. He has lectured around the country about class actions, conflicts of interest, opening and closing arguments, and direct and cross examinations of both lay and expert witnesses. Paul is a member of the Consumer Attorneys Association of Los Angeles and Consumer Attorneys of California.

California Bar Exam Results July 2017

Posted on by Faith Pincus
California Bar Exam Results
20 Nov

Nearly half of all prospective lawyers who took the California Bar Exam in July passed this year. 49.6% of test-takers passed the exam, up from 43% last year, which was the lowest pass rate in about 30 years, according to The Recorder. 62% of first-time applicants and 28% of repeat applicants passed the exam.

In total, 8,545 people took the exam and 63.2% were first-time applicants. The July 2017 exam was the first time the test has been administered in a two-day format. Exams are held in February and July each year.

A pass list from the exam was published on the CA Bar’s website yesterday. More detailed statistics about examination results will be available in approximately three weeks. If you’d like more information about the passage rates and statistics of this year’s exam, please CLICK HERE to see the published results from the California Bar.

Congratulations to the 4,236 applicants who passed the exam this year!!

 

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

Posted on by Faith Pincus
31 May

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

Posted on by Faith Pincus
24 May

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

Posted on by Faith Pincus
03 Apr

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.

 

Opening Statements for Attorneys (Part II)

Posted on by Faith Pincus

Last week on the blog we shared a snippet on Opening Statements from Faith Pincus’ Being Heard: Presentation Skills for Attorneys, written by Karen Kimmey of Farella Braun & Martel LLP in San Francisco. Karen is a veteran speaker who continuously receives high ratings from our attendees.

The following is Part II of a the three part discussion on Opening Statements. Part I was published last week and you can find it here. Keep an eye for Part III next week!

Part II:
Delivery

Jurors often are quick to form opinions regarding the competence and credibility of counsel.  Aside from voir dire (which is severely limited in many courts), opening statement is counsel’s first chance to make an impression on the jury.  Jurors appreciate counsel who are efficient and respectful of their time, well prepared, credible and easy to understand.

How does a lawyer create such an impression with a jury?  Aside from being well prepared and knowing the evidence, a lawyer’s delivery style and non-verbal behaviors will have a substantial impact.  Every lawyer must determine the delivery style that is most true to himself or herself.  A lawyer who is naturally reserved will look false if he or she puts on a flashy demeanor before the jury.  A lawyer must work to maintain the jury’s interest, but too much drama or too many gimmicks in an opening are likely to fall flat, and potentially draw an objection.  Speak clearly and with conviction – aim for the style of a trusted educator.

While notes are helpful to ensure that all important points are covered, counsel should never merely read from notes.  Practice the opening statement until it can be presented with minimal or no reliance on notes.   In particular, the first few minutes of the opening statement should be completely smooth and delivered without any reference to notes, if at all possible.   Reduced reliance on notes will also allow counsel to make eye contact with jurors and to evaluate how they are reacting.

Research in advance what the judge’s expectations are regarding where counsel can stand during opening, and whether it is acceptable to step away from the podium and move around the courtroom.  If counsel does choose to walk during the opening, the movement should be purposeful and not distracting.  Counsel should be aware of any non-verbal tics or habits that might be distracting to jurors or might communicate shiftiness or nervousness.  Counsel should be very familiar with the rules of the courtroom and facile with all use of visual aids, technology and documents to avoid any fumbling or distractions.

Almost all opening statements of any complexity will generally benefit from some type of visual aids.  Counsel should think carefully about the types of graphics that will be most helpful.  As mentioned above, timelines and bullet point outlines of the topics to be covered can be very useful in helping a jury orient itself to the facts in the opening statement.  Other good options for opening statements include: (1) documents that identify the key players and witnesses by name, and perhaps with a photo; (2) graphics that explain processes or concepts necessary to understand the case; or (3) photographs or actual examples of important evidence (such as a photograph of an accident scene or a sample of a product alleged to infringe a party’s patent).  Beware, however, of using too many visual aids or relying heavily on a power point presentation.  Graphics can lose their power when overdone, and counsel can lose his or her chance to connect with jurors if the jurors are busy looking at a screen exclusively, rather than looking at counsel. Most courts require that the parties confer in advance about graphics to be used during opening statement in order to avoid any objections during the presentation.

Four Classic Ways to Organize Your Speech

Posted on by Faith Pincus

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.

Opening Statements for Attorneys

Posted on by Faith Pincus

Recently Faith invited one of our speakers, Karen Kimmey of Farella Braun & Martel LLP in San Francisco, to write a chapter on Opening Statements for Faith Pincus’ book,Being Heard: Presentation Skills for Attorneys . Karen has spoken at our programs for many years, including at our Superior Court Boot Camp almost every year since 2011.

Karen’s expertise and ability to teach is what led Faith to invite her to write this topic for her book. We’re reprinting it in portions on the blog, to give you a taste of what is in the book!

The following is Part I of a three part discussion about Opening Statements, written by Karen:

Part I:

Opening Statements

The opening statement is the attorney’s first opportunity to tell the jury what the case is about and what the attorney expects the testimony and evidence will show.  It is also counsel’s first real opportunity to establish his or her themes and build rapport with the jury.  In order for an opening statement to be effective, it is critical that the attorney has carefully prepared, planned, developed, and practiced the opening statement.  The attorney should discuss his or her theory of the case.  The statement should include all of the uncontested facts as well as the client’s version of the disputed facts.  It should be non-argumentative, logical, simple to comprehend, and believable.  In short, the opening statement is storytelling.

Opening Statement Theme

Every opening statement should have a theme.  The theme shared in the opening statement should be revisited throughout the case, and should be reinforced by the evidence.  As a result, it is critical that the attorney is well prepared and has an intimate understanding of the facts, deposition testimony, witnesses, evidence, strengths, weaknesses, and jury instructions.  This intimate understanding of the complete case will help the attorney develop the theme that will assist the jury in remembering and understanding the case from the client’s perspective.

Ideally, the theme will be one that resonates with jurors and is consistent with their existing views on how people act and what motivates behavior.  The theme should be relatable and not legalistic.  For example, a theme like  “this is a case about a defendant who made a promise, but then regretted it and is now trying to get out of the deal he made” is more effective than “this is a case about whether two parties formed a valid contract.”  Even the most complex or technical case should tell a human story.

Opening Statement Strategy

In order to deliver a case winning opening statement, the attorney should be efficient, non-argumentative, trustworthy, persuasive and strategic. As far as efficiency, jurors are often anxious to hear from the witnesses and receive evidence.  In complex cases, the jurors may have been sitting around for days listening to the lawyers dig into their personal history and potential biases.  Candidly, by the time the jury in sworn, they are tired of hearing from the attorneys and prefer to see and hear something else.  As such, it is critical for the attorney to make good use of his or her time by providing the jury with a concise story of what occurred and what the evidence will show.   Counsel should aim to present the opening statement in as little time as he or she realistically can.  Rarely is it advisable to use all of the time permitted by the court for opening.

The opening statement is not argument.  An argumentative opening statement will likely draw a sustained objection from opposing counsel, frustrate the presiding judge, and cause the attorney to become distracted or flustered.  It is also important that the attorney does not oversell the evidence or testimony.  If the attorney is unable to deliver on the oversold evidence or testimony, opposing counsel will remind the jury at closing.  It is best to under-sell and over-deliver.  Of course, the opening statement is also not merely a neutral recitation of facts – it should persuade through a clear and strategic recitation of the facts, not through argumentative rhetoric.

Counsel should anticipate the weaknesses in the client’s case and, if the weakness is admissible, volunteer the information to the jury.  It is important that they jury believes the attorney is credible and honest.  Attempting to hide the weaknesses or the damaging facts may cause the jury to think that the attorney and the client are attempting to pull a fast one.

Before presenting an opening statement to the jury, counsel should review the opening with colleagues and others with little or no familiarity with the case.  If the case is not sufficiently large to justify a formal mock trial or retention of a jury consultant, family members, friends and law firm staff can be excellent sounding boards!  Obtain feedback on the proposed theme.  Push for honest reactions; explore the listeners’ questions and evaluate the effectiveness of the approach.