Legal Pad

Name Surfaces For Fogel's Seat

2013-05-13T17:23:31-07:00

The White House at long last is closing in on a pick to fill the Northern District judicial seat once held by U.S. District Judge Jeremy Fogel.

San Mateo County Superior Court Judge Beth Labson Freeman is the administration’s new leading contender to replace Fogel, who has been on leave as director of the Federal Judicial Center since 2011, the San Jose Mercury News reported Sunday.

Freeman, who was appointed to the San Mateo bench in 2000 by former Governor Gray Davis, served as presiding judge in San Mateo from 2011 to 2012 and previously handled general trial, law and motion, and family law assignments.

From 1983 to 2000, she worked as a deputy county counsel in San Mateo and before that spent four years in private practice in San Francisco and Washington D.C.

Freeman, 59, is a Bay Area native and Harvard Law School grad. Several local lawyers and judges contacted by The Recorder said they believed Freeman was a candidate for Fogel’s seat but had no direct knowledge. Freeman declined to comment through her clerk.

By tradition, the state’s Democrat senators Dianne Feinstein and Barbara Boxer alternate in submitting candidates to the White House based on the recommendations of screening committees. Feinstein’s committee, led by former San Francisco City Attorney Louise Renne, had been charged with finding a replacement for Fogel’s seat.

The committee initially recommended U.S. Magistrate Judge Paul Grewal who sits in San Jose, but the White House rebuffed the suggestion because Grewal is a registered Republican.

Meanwhile, San Francisco lawyer William Orrick III is slated for a Senate vote this week and expected to be confirmed to the seat once held by his father (and more recently by U.S. District Judge Charles Breyer).

That leaves the busy Northern District with two judicial posts yet to fill — the seat held by former Chief U.S. District Judge James Ware and that soon to be vacated by U.S. District Judge Susan Illston, who announced she would assume senior status in July.

Technology Revolution a Challenge Even for Larry Sonsini

2013-04-19T17:36:13-07:00

[Scott Graham]

The lawyer most responsible for developing Silicon Valley's culture of entrepreneurship is feeling the pressure of disruptive change.

Speaking to Santa Clara University law students this week, Wilson Sonsini Goodrich & Rosati chairman Larry Sonsini described a legal profession under siege by an information revolution, globalization, alternative fee requests and commoditization of various practices.

“There is no place to hide in the profession because you’re on the firing line every day,” he said at a panel on lawyer leadership. Appearing with him were California Supreme Court Justice Carol Corrigan, Santa Clara County Deputy District Attorney Jeff Rosen and Sixth District Court of Appeal Justice Patricia Bamattre-Manoukian.

All four emphasized they see a bright future for the profession. But the panelists, especially Sonsini, also sounded cautious, sometimes even wistful notes about the enormous challenges facing lawyers today.

“Technology has changed the game,” said the lawyer who helped nurture Apple, Google and numerous other game-changing companies. With greater access to information, clients expect faster answers at lower rates. At the same time, law firms have to negotiate globalization “without losing your momentum” and the commoditization of lower-end work.

“All of that has put a lot of pressure on the practice,” Sonisini said, from graduates seeking jobs, to senior associates trying to make partner, to established partners who must “stay on top of the game.”

When it comes to their own new hires, Wilson is looking for people who already have a personal strategic plan. “Now that sounds like a terrible thing for a person just getting out of law school,” Sonsini said, but it helps demonstrate vision, skill set and -- theme of the night -- ability to thrive under pressure.

Sonsini acknowledged it took him a little while to develop his own strategic plan. He’d expected to study medicine before opting for law school at the last minute.

“How’d that work out for you?” Rosen quipped.

The April 17 panel was organized by SCU adjunct law professor Bob Cullen.

DA Regrets Misconduct, Supreme Court Says Not So Fast

2013-04-19T16:19:58-07:00

[Scott Graham]

When the Sixth District Court of Appeal found “flagrant” prosecutorial misconduct in the case of Daniel Shazier last December, the Santa Clara County district attorney’s office was contrite.

"Based on the court's opinion, if I had it to do over again, I would make my arguments differently,” Chief Assistant DA Jay Boyarsky told the San Jose Mercury News at the time.

But the California attorney general’s office, which is prosecuting the appeal, didn’t have the same misgivings. Nor may the California Supreme Court, which granted the AG’s petition for review this week by a 4-3 vote.

The court of appeal “distorted the substantive standard for misconduct claims by ignoring material facts in order to infer the most damaging inference from the prosecutor’s comments,” Deputy Attorney General Bridget Billeter wrote in her petition.

Rosen was elected DA in 2010 in part on a platform of tightening up legal ethics, and installed Boyarsky as his chief assistant. Under their leadership the office seems largely to have defused prosecutorial misconduct as a hot-button issue.

So it was surprising when the Sixth District called out Boyarsky for a sexually violent predator case he tried just before becoming chief assistant. In People v. Shazier, Presiding Justice Conrad Rushing faulted him for asking jurors how they would explain to friends and neighbors letting loose "a prolific child molester," and warning jurors that Shazier was “grooming” them the way he did his victims.

It was the second time the Sixth District had reversed Shazier's civil commitment due to prosecutorial misconduct.

Rosen and Boyarsky sounded ready to turn the page and try the case anew. "Any prosecutor in my office may err," Rosen told the Mercury News, “and when we do, we learn from it and improve.”

But the AG’s office petitioned for review six weeks later, arguing that Shazier’s defense lawyer failed to object to “at least half” of the 10 instances of misconduct identified by the appellate court, and that Rushing had improperly construed "ambiguous comments” in the worst light possible.

For example, Boyarsky wasn’t necessarily trying to inflame juror passions by telling them they’d been groomed. “When read in context,” she wrote, “it is reasonable to infer that the prosecutor was using evidence that defendant had groomed and manipulated his victims to argue that defendant continued to be manipulative and was not truly amenable to voluntary treatment.”

Chief Justice Tani Cantil-Sakauye and Justices Marvin Baxter, Ming Chin and Carol Corrigan voted to review the case.

Budget Chair Slams Courts for 'Irresponsible' Spending

2013-04-03T18:16:39-07:00

[Cheryl Miller]

Wednesday’s hearing of the subcommittee overseeing California courts started off like so many others have -– with another sad recital of the suffering that years of budget cuts have brought to the judiciary.

And then Assemblyman Bob Blumenfield crashed the party.

Blumenfield, D-Van Nuys, is not a regular member of the Assembly budget subcommittee no. 5. He is, however, chairman of the full budget committee. So if he drops in on a subcommittee hearing, he’s going to get people’s attention. And that he did when he told the assembled leaders that their past decisions are not forgotten.

“While the state grappled with a budget crisis, court administrators sometimes have acted fiscally irresponsible even though fiscal responsibility was the mantra of the day, “ Blumenfield said. “We've seen a failed computer system with years of cost overruns and nearly $500 million wasted. In the process, the courts took millions from trial courts -- sacrificing access to justice -- to keep the failed computer project running. This year, the court system will likely enter an agreement and spend $100 million more than we should to build a new courthouse in Long Beach.”

Blumenfield said he isn’t pleased with Los Angeles County Superior Court’s decision to close courthouses and consolidate services either.

“The Legislature has acted to keep court budgeting stable through fees and other solutions,” he continued. “But the court's requested increases demand an assessment of how responsibly existing budget levels have been used.”

Branch leaders, who didn’t respond to Blumenfield at Wednesday’s hearing, will surely argue that funding has been anything but stable with the significant loss of state general fund dollars. And they would say -– they have said -– that the chief justice and Judicial Council have turned a page on the spending decisions of the past.

But reading between the lines, the Assembly’s top budget official seemed to be saying that if the Legislature does restore any judicial funding, it’s going to come with some serious strings attached. What those conditions might be aren’t clear yet, but they’d probably include requirements that money be spent on increased trial court staffing and re-opened courthouses, things that labor would surely like to see, and not case management systems or electronic recording.

Blumenfield said he also wanted to hear more cost-saving ideas from the branch. “My only request is that your proposals focus on maintaining or improving access to justice,” he said.

Meet Tigar, Hear Him Purr

2013-03-29T16:48:36-07:00

[Vanessa Blum]

There was a yin and yang to U.S. District Judge Jon Tigar’s investiture ceremony Thursday afternoon at the federal courthouse in San Francisco.

The Northern District's newest judge was lauded first by a lover — longtime friend Dacher Keltner, director of UC Berkeley’s Greater Good Science Center and an expert in compassion, gratitude and other positive emotions.

Keltner described Tigar as a “searcher” with an appreciation for the “sublime.” (Practitioners take note: According to Keltner, if Tigar ever takes a pause on the bench, turns away and returns with misty eyes, you’ll know your argument is resonating.)

Next up to fete Tigar was a fighter — veteran S.F. trial lawyer John Keker, who hired Tigar in 1994 fresh from a stint in the federal public defender’s office.

Th ex-Marine described the young Tigar as a talented and brash attorney who was “a little cocky sometimes.” He added: “We made him a partner as quickly as we could.”

The Keltner-Keker line up was like having a speech from the Dali Lama followed up by martial arts actor Chuck Norris, Tigar joked when it was his turn at the podium in the ceremonial courtroom.

The induction was classic Northern District, with speeches about justice and service, and a little good-natured ribbing of the new member of the club, in the presence of local legal luminaries from the Ninth Circuit, California Supreme Court, the Alameda bench (where Tigar served for 11 years), along with big-name litigators and judicial vetters like Cristina Arguedas.

With an audience of nearly every judge from the Northern District, Keker declared: "When the job is done right, district judges are the most important people in America," because they decide "how free we are."

"Judge Jon Tigar, we tell you we are all counting on you to protect us."

Chief Judge Claudia Wilken performed the ceremonial swearing in, assisted in donning the robe by Tigar's wife Caroline Avery — a "fully recovered" attorney, as he put it.

His high-school and college-aged sons led the pledge of allegiance with Tigar’s 96-year-old grandmother and his father, the legendary human rights lawyer Michael Tigar, looking on. (Also in attendance: Northern District judicial nominee Bill Orrick, whose appointment has lagged in the U.S. Senate for more than nine months. Both Tigar and Orrick were recommended to the White House by U.S. Senator Barbara Boxer and nominated in June 2012.)

True to Keltner’s predictions, Tigar was visibly moved by the ceremony and the gathering of supporters. He choked up — and a pin drop could be heard — when he recalled his clerkship in Alabama for Judge Robert Vance of the U.S. Court of Appeals for the Eleventh Circuit in 1989, the year Vance was murdered by an angry litigant.

“I’m sorry Judge Vance isn’t here,” said Tigar, who keeps the judge’s photo in his chambers.

Tigar pledged to approach his role with humility and gratitude and to remember the difference “between the size of the office and the size of the person.”

As a judge in Alameda County, Tigar said he posted a quote from the Book of Proverbs on the back side of the bench that read: “If one gives answer before he hears, it is folly and shame.”

Lucasfilm Pregnancy Case Heading Back to Trial Court

2013-03-27T18:26:55-07:00

[Scott Graham]

The California Supreme Court may be feeling some pregancy discrimination fatigue.

Six weeks after handing down its blockbuster decision in Harris v. City of Santa Monica, the high court on Wednesday said no thanks to a bitterly fought contest between Angela Alioto and Altshuler Berzon on one side and Lucasfilm Ltd. on the other.

Instead, the court left intact an appellate decision that wiped out Julie Gilman Veronese's $113,830 jury award and a $1.1 million attorney fee, sending it back to Marin County Superior Court. Veronese, Alioto's daughter-in-law, alleges that Lucasfilm withdrew a job offer after learning she was expecting twins and that one had miscarried.

Plaintiffs counsel had warned that Justice James Richman's opinion in Veronese v. Lucasfilm Ltd. carved a dangerous exception into discrimination law by excusing employers who had well-meaning concerns about the health of a fetus. It will make it "far more difficult for victims of discrimination to prove their claims," they argued — not only pregant women, but older and disabled workers as well.

Lucasfilm's attorneys, Steven Drapkin at the Law Offices of Steven Drapkin and Paul Cane of Paul Hastings, had called the argument exaggerated, and countered that Harris compelled a new trial anyway on Lucasfilm's motives.

None of the justices voted to grant review the case.

Is New Funding Formula Key to Governor's Judicial Happiness?

2013-03-26T19:51:59-07:00

[Cheryl Miller]

In the quest to answer Governor Jerry Brown's call to make trial court funding more equitable, a group of judges and court executives may have come up with a solution.

The Funding Methodology Subcommittee, a Judicial Council bunch led by Sacramento County Superior Court Judge Laurie Earl, has unveiled a model that purports to link individual court allocations with their workloads, not their historical -- and historically unequal -- funding levels.

The formula is complex and a little wonky, and it still has some holes. It would be phased in through 2018. Bottom line, some-better off courts would lose money under the plan while others that have gone begging would gain. But Earl and her subcommittee colleagues aren't making public yet the full list of winners and losers.

"It's a very, very rough draft, and there's more tweaking to be done," she said Tuesday after briefing the Trial Court Funding Working Group. (That's the panel appointed by the governor and chief justice to analyze the success of 16 years of state funding for courts).

She did say her own court would lose funding under the plan. So would Santa Clara County Superior Court. Courts in Riverside, San Bernardino, Kings, Riverside and Los Angeles would also benefit, at least under the formula's first draft.

In addition to tweaking its model, Earl's group has a formidable sales job ahead of it. Will judges from courts that would lose money still back the plan? Will organized labor?

The group's best hope may be convincing the governor that the funding formula is fair, or at least more fair than the current method. A satisfied governor may be more inclined to retore branch funding, and that should mean more money for everyone. That may be why the proposal seems to have some momentum behind it.

Earl's subcommittee is presenting its model to judges and court executives in private meetings around the state. The Sacramento judge said she expects to make the proposal final before it goes to the Judicial Council in late April.

High Court Weighs Domestic Violence Case That Helped Unseat Hallinan

2013-03-05T19:37:12-08:00

[Scott Graham]

Ten years ago, the domestic violence murder of Claire Joyce Tempongko helped bring down San Francisco District Attorney Terence Hallinan and put Kamala Harris in his place. Five years later, Harris' office put Tempongko's killer behind bars.

On Tuesday the tragedy came full circle, as the California attorney general's office — now under Harris' leadership — sought to preserve the conviction of Tare Beltran before the California Supreme Court.

A divided appellate panel had thrown out the verdict, but Chief Justice Tani Cantil-Sakauye sounded eager to reinstate it, even objecting at one point to the description of Tempongko and Beltran's relationship as stormy. "When you say 'stormy,' we're using the wrong word," she said. This, she declared, was a domestic violence killing. "The storminess is all on his side."

Tempongko had gone to police repeatedly over assaults by Beltran, also known as Tari Ramirez, including an incident about a month before her murder in which Beltran choked her and bloodied her mouth. But Beltran remained at large and on Oct. 22, 2000, he stabbed Tempongko 17 times in her apartment in front of her two children.

The murder prompted a critical report from San Francisco's Commission on the Status of Women that became part of the blueprint for Harris' 2003 campaign. Beltran, who fled to Mexico, was arrested in 2006 and convicted of second-degree murder two years later. Harris personally attended his sentencing.

But the First District Court of Appeal threw out the conviction in 2011, saying Judge Robert Dondero -- now of the First District -- misinstructed the jury on Beltran's bid for voluntary manslaughter. Beltran had argued that Tempongko provoked him into an uncontrollable rage by telling him she'd aborted their child. Dondero told jurors the provocation had to be sufficient to cause an ordinary person not just to act rashly, but to kill.

Before a nearly packed courtroom Tuesday, Deputy Attorney General Jeffrey Laurence argued Dondero had it mostly right: To qualify for manslaughter, the defendant must show that an ordinary person could be provoked to a homicidal act. "This court has held repeatedly that a defendant may not set up his own standard of conduct," Laurence argued.

Beltran's attorney, Linda Leavitt of San Francisco, argued that conduct is beside the point — the defendant only need show that malice was negated by an irrational impulse.

Justice Carol Corrigan seemed to disagree, saying a person might get annoyed at a motorist for "saluting without all fingers extended," but couldn't likely shoot and claim it was manslaughter. Justice Goodwin Liu said Leavitt's position was too all-or-nothing. "We walk around the world either reasonable or passionate — that's it?" he asked.

Cantil-Sakauye then asked if there shouldn't be a time limit on a heat-of-passion defense. She counted out loud to 17 — the number of stab wounds — to make her point.

"It's not did he stab her once or stab her 10 times, it's did he lose the mental state," Leavitt said.

In the end, whatever standard the court adopts probably won't be relevant, as the justices sounded likely to find any error harmless, even though jurors had specifically asked Dondero about the instruction. "The problem is there's a lot of evidence that undermines your client's version of events," Corrigan told Leavitt.

Breyer Sounds off at First HP-Autonomy Hearing

2013-03-01T17:32:12-08:00

[Vanessa Blum]

The line of lawyers waiting to enter appearances at Friday morning’s hearing before U.S. District Judge Charles Breyer extended well beyond the bar.

First came plaintiffs attorneys representing Hewlett Packard’s shareholders and employees in various suits over the company’s botched 2011 acquisition of the British software firm Autonomy.

Next, a parade of defense lawyers stepped up from AmLaw 100 firms including Morgan, Lewis & Bockius; Cooley; O’Melveny & Myers; and Skadden, Arps, Slate, Meagher & Flom on behalf of HP executives and board members.

Once the lengthy roll call ended, Breyer quipped, “That’s it?”

Clearly, the group needed organizing and Breyer focused Friday on housekeeping matters, particularly the selection of plaintiffs lead counsel.

It was the first hearing in the wave of litigation that followed HP’s November announcement of an $8.8 billion write down related to the Autonomy deal.

“It’s important that these actions be coordinated. They are all related. They all deal with some of the same issues and they have all been placed in this court,” Breyer said. “You can’t escape. You’re stuck with me for good or ill until the end of this litigation.”

Firms vying for lead role in the shareholder class action tussled over whose client held a larger financial interest in the litigation, which gives that party the presumptive status of lead plaintiff.

San Diego partner Blair Nicholas of Bernstein Litowitz Berger & Grossman insisted the biggest loser designation should go to a coalition of pension funds represented by his firm and Kessler Topaz Meltzer & Check.

The group, which includes public retirement funds in Oregon and Oklahoma and Dutch pension funds manager PGGM Vermogensbeheer, “not only has the single member with the largest losses, but the group itself has the largest losses,” Nicholas said.

Kaplan Fox & Kilsheimer New York partner Frederic Fox begged to differ.

“When you look at who has the single largest interest here by many different measures it is the Virginia retirement system,” Fox said, referencing his firm’s client.

Serving as lead counsel is a coveted position and usually leads to a greater share of attorneys fees.
Breyer did not rule, though he seemed inclined to select a single institutional investor over a collective.

Taking the opposite approach would encourage lawyers to sign up more and more clients to create the largest conglomerate, Breyer said.

Then again, he noted, trying to ascertain the largest investor depends on which accounting method is used.

“I’ve always thought the calculation of loss is extraordinarily difficult in a market situation,” Breyer said. “My view is you’ll never know. It’s the inexactitude and the vagaries of the market that make it so difficult to ascertain.”

Moving on to derivative actions, where investors sue officers and directors on behalf of the company, Breyer said he would likely give Burlingame-based Cotchett, Pitre & McCarthy the coveted role of lead counsel. Principals Joseph Cotchett and Mark Molumphy represent a Silicon Valley investment advisor and pledged to bring together an inclusive committee of lawyers to assist with case.

Not too inclusive, Breyer cautioned.

“I don’t like committees,” he said. “Committees are ways of vast sums of money waltzing out the door.”

Breyer’s favor toward Cotchett seemed to ruffle Maya Saxena, a name partner at Boca Raton’s Saxena White. Saxena, lawyer to the City of Birmingham Retirement and Relief System, seeks to share the lead counsel role with San Diego-based Robbins Arroyo.

“It sounds as though your honor has his mind made up,” Saxena began.

Breyer was jovial and told Saxena he could still be persuaded: “I can change my mind. I don’t even know half the time what my mind is.”

Finally, Breyer addressed lawyers from firms pursuing ERISA actions against HP, asking them to sort out for themselves which lawyer would be lead counsel.

Following the hearing, a crowd of lawyers pushed into an elevator. Instead of heading down as expected, the car shot up, leading one attorney — hopefully on the plaintiffs side — to crack a joke about the beleaguered Palo Alto tech firm.

The faulty elevator, the lawyer quipped, must be working on an HP operating system.

Lockyer Stumped by State Court Funding Woes

2013-02-12T17:57:39-08:00

[Cheryl Miller]

Even the father of the state trial court funding system isn’t sure what to do about the judiciary’s budget woes.

State Treasurer Bill Lockyer, whose name adorns the 1997 bill that shifted court financing from the counties to the state, told the Assembly Judiciary Committee Tuesday that the only fix to massive budget cuts over the last five years is “just more general fund money.”

“When you have a $3 billion system and you pull $1 billion-plus out of it, it’s not done without enormous pain,” Lockyer said.

The former Senate president pro tempore led off a marathon hearing about the troubles courts and court users are facing because of staff layoffs and courtroom closures. And he readily admitted he had no magic cures in mind.

“It’s just the process of negotiating as hard as you can to get a fair share” in the budget, he said. “I don’t think there’s any other answer.”

Asked if shifting more budgeting control to local courts would help, Lockyer said that would be “bad policy mostly because they’re bad budgeters.”

“If people really want their way, to have a court responsible for their budget … then give it all back,” Lockyer said. “Say ‘Fine. The state’s out of the business. We’re realigning similar to some of the changes made to the criminal justice system. Fine, you get it all back. Local property taxpayers get to pick up 100 percent. Have a good time.’ … That would be a mistake for you to make.”

Lockyer’s testimony followed the release Monday of an Assembly Judiciary Committee report that suggested the branch had made deep cuts to front-line services that hurt court users even though many of the reductions had been offset by money shifted from other sources.

Retired Judge Steven Jahr, administrative director of the Administrative Office of the Courts, conceded that the cutbacks could have been worse but argued that trial courts will still have to absorb $475 million in budget hits. And with certain line items like trial costs and judges’ salaries protected by law, court leaders have little choice but to reduce services that hurt the neediest users, he said.

Some cuts, he said, “we simply can’t say no” to.