John Mullan is our Latest Featured Speaker!

John Mullan is our latest featured speaker!

John will present at our upcoming 2nd Annual Employment Law Year in Review, a two-part webinar held on January 16 and January 18, 2024.

John joined Rudy Exelrod Zieff & Lowe in 2002, and currently leads the class action practice group. He has a deep knowledge of state and federal employment laws, which protect workers from employers who do not provide proper compensation. John has successfully recovered tens of millions of dollars in unpaid wages for his clients from some of the largest employers in California. These class action lawsuits include allegations of unpaid wages, unpaid overtime wages, violations of meal and rest breaks, and gender discrimination. John frequently co-counsels large class action cases with other firms.

John is also an experienced litigator, representing individuals with employment law claims such as wrongful termination, harassment, discrimination, and whistleblower retaliation.  He represents many high profile clients, such as Tinder founder Whitney Wolfe in her sexual harassment lawsuit against the company.

John has been named a Northern California Super Lawyer since 2013, and was previously recognized as a “Rising Star for Northern California” by Super Lawyers. He is a graduate of the UC Berkeley School of Law, where he served as an executive editor of the Berkeley Journal of Employment and Labor Law.

We have had many partners from Rudy Exelrod Zieff & Lowe speak over the years – all to rave reviews – and John comes highly recommended by several of them.

Thank you for sharing your expertise with us, John! We’re looking forward to your presentation on employment law.

Kathryn B. Fox is our Latest Featured Speaker!

Kathryn B. Fox is senior counsel at Buchalter. She is a member of the firm’s Labor & Employment practice group and Vice-Chair of the Franchise Law industry group in the firm’s San Diego office.

Don’t miss Kathryn’s upcoming talk at our 2nd Annual Employment Law Year in Review, a two-part webinar on January 16 and 18 that entails a comprehensive discussion on California and federal employment law in 2023.

Ms. Fox advises employers on litigation avoidance and provides counseling on workplace law matters.  She has experience representing clients in single-plaintiff cases involving allegations of discrimination, harassment, retaliation, wrongful termination, and wage and hour issues. She also routinely advises and represents clients in class action and representative PAGA cases involving wage-and-hour allegations, including failure to pay regular and overtime wages, meal period and rest break violations, misclassification issues, piece-rate pay agreements, and reimbursement claims. Her representation of clients includes defending actions in state and federal court, in arbitrations, before the EEOC, DFEH, DLSE and EDD, and in mediation. Ms. Fox also provides trainings to clients on workplace privacy issues, preventing workplace harassment, and best practices for complying with California wage and hour laws.

Ms. Fox has been named a 2021-2023 “One to Watch” by Best Lawyers for her work in Labor and Employment Law: Management. Ms. Fox was also recognized as a 2021 “Rising Star” by Super Lawyers Magazine.

Just a coupler of highlights from Ms. Fox’s work include:

Successfully obtained a full dismissal of all claims against a large biotech company after filing demurrers and minimal discovery.

Obtained summary judgment for three defendants (two companies and the plaintiff’s manager) in a case involving allegations of age discrimination, wrongful termination, intentional infliction of emotional distress and breach of implied contract.

Thank you for sharing your expertise with us, Kathryn!


Rich Matthews is our Latest Featured Speaker!

Our latest featured speaker is Rich Matthews from Jurology!

Rich is a popular and knowledgeable speaker on jury issues. Rich repeatedly presents at our jury selection programs such as our two-part  Art of Jury Selection California program from July 12, 2022-July 14, 2022.

Rich will speak at our upcoming Mastering Jury Selection and Winning Jury Trials: The Right Story for the Right Panel, a two-part webinar on December 12, 2023 and December 14, 2023.

For more than 20 years, Rich has been an attorney, trial consultant, and “mythbuster” for a lot of the widespread but often incorrect beliefs about jurors and jury selection. Rich combines research with psychology with artistic craft to create the best frames and themes for your case . . . and get the best results from jurors or in settlement.

His expertise includes separating jury issues from the legal issues; crafting the themes and frames that will shape juror perception of a case; writing openings and closings like a human actually speaks to other humans and in a story format that will bring your audience to your case (rather than the reverse); witness preparation; and all things related to jury selection from juror questionnaires and voir dire questions to exercising cause and peremptory challenges.

Rich has innovated the use of focus group results at mediations and in negotiations to achieve better settlements in a shorter time than clients had experienced without them.

Rich has appeared on national television and in major publications offering commentary on high profile trials. He serves on the California Bar’s Litigation Section’s committee for comment on proposed revisions to California’s standard jury instructions, lending his juror expertise to improving the understandability and clarity of jury instructions.

Rich works nationwide and is located in San Francisco and received his J.D. from the University of Oregon School of Law.

Opening Statements for Attorneys

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.

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.

The What, Why and How of the Final Status Conference

Jill Kopeiken, Speaker at Pincus Professional Education on the Final Status Conference

Our speakers are always providing our attendees with helpful tips for their practice, and Jill Kopeikin of Kopeikin Law, is no exception. Jill is one of those speakers who provides fantastic handouts for every topic on which she speaks and she is an attendee favorite!  Jill has spoken at many of our annual Superior Court Boot Camps and Federal Court Boot Camps.

Our blog readers can take 50% off our boot camp recordings with the coupon code 50FSC.

For one of our Superior Court Boot Camps, Jill provided a great tip-sheet thoroughly explaining the Final Status Conference (FSC).  If you’d like to take a look at the full list of topics for our recent 15th Annual Superior Court Boot Camp (Oct. 2020), please click on the link provided.

So, there are a few things you need to know and think about when it comes to the Final Status Conference.
Written by Jill Kopeikin of Kopeikin Law

  • First, they’re discretionary:
    • There is no California statutory requirement to have a final status conference, merely statutory authorization. See Rule 4.112 Cal. Criminal Rules (“The Court may hold a readiness conference…”, (emphasis added)); see also Rule 3.723 Cal. Rules of Court (“The court on its own motion may order, or a party or parties may request, that an additional case management conference be held at any time…”
  • Given that, what is the purpose? And what are the typical uses? 
    • Judges use the final status conferences (sometimes called an “issues” or “trial readiness” conference) to:
      • Assess the likelihood of settlement
      • Ensure trial readiness
      • Give the parties a chance to raise any issues that may impact the efficient flow of trial
      • Confirm whether a previously reserved jury will be required.  (Judges always try to eliminate a jury trial where possible.)
      • Identify disputed/undisputed facts
      • Discuss exhibits that may be admitted by agreement without laying a foundation, and those that require a foundation
      • Explain the Court’s expectations about readiness and trial schedule
      • Hear and adjudicate pretrial motions. For example, in a “Readiness” conferences held in criminal cases common motions resolved before or at the readiness trial include:  Motions to suppress; Pitchess motions.
    •  Counsel may use the status conference to:
      • Learn more about the Court’s trial practices and preferences.
      • Raise issues that may affect the timing or flow of trial (e.g., explaining that expert witness needing to be called out of order, or identifying preliminary issues to be raised, or notify the Court of a waiver of jury).
      • Seek the adjudication of any pretrial motions that may not have been resolved
      • Discuss equipment needs and handling
      • Discuss exhibit marking, submission and handling at trial, if not already done
      • Try to engage settlement discussions without showing weakness
  • And lastly, what about the timing & procedures?
    • The timing and procedures associated with final pretrial or readiness conferences vary greatly by county, expedited/short or long cause, whether limited or unlimited jurisdiction and criminal versus civil.  So do not assume that what you did in San Francisco Superior will be consistent with what you will do in a new case in Orange County.  It will not.
    • May or may not be standard within a jurisdiction as between judges.
    • Typically held in the last two weeks prior to trial.
    • May or may not be coupled with a court-supervised settlement conference, or these may be held separately.
    • Typically, the exhibits, motions in limine, issues varying trial order or scope, disputes about significant issues that may impact trial scope, order or timing, will be resolved at or before the final pretrial conference.

We hope you’ve found this list helpful and we encourage you to email us, or comment below, if you’d like more tips like these or have any questions.

Want to know more about litigation? You can find upcoming programs and recorded packages for past litigation boot camps at these links:
To receive 50% off of our boot camp recordings, please use the coupon code 50FSC.

Summary Judgment Motions – Tips from the Trenches

Our speakers are always providing our attendees with helpful tips for their practice, and Karen Kimmey of Farella Braun + Martel is no exception!  When she speaks at our CLE programs, Karen provides great handouts. She provided one on Summary Judgment Motions not too long ago.

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

Here are a few simple tips to improve your briefs:


Practice Tips

  • Think strategically about whether to file for summary judgment regardless of odds of winning. What are you goals?D Do you want to educate your judge? Are you trying to preview your opponent’s evidence? Always remember to consider the cost and effort involved in a Motion for Summary Judgment – it can get very expensive for your client.
  • Spend more time on your Separate Statement of Facts
    • Too often this is an afterthought for counsel – but the judges and their law clerks read these thoroughly. It is the document most relied-upon by many judges and clerks, so be careful with it, and make it easy for the court to find your references and cites.
  • Include only those facts in your Separate Statement that are truly “material”
    • The Court may assume it is material if it is in your Separate Statement
    • Each fact should be discrete and independent
  • Focus on your introduction and headings
    • Explain in a couple sentences what relief you are seeking and why you are entitled to it
    • Use argumentative headings to guide the argument
  • Do not bother with a long recitation of summary judgment standards – they know what it is. Save the space and word count for your argument.
  • Simplify if you are seeking summary judgment and complicate if you are opposing it
  • Start the process early – it takes a lot of time to prepare the papers