July-August 2012 - San Bernardino County Bar Association

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July-August 2012 - San Bernardino County Bar Association

• B U L L E T I N •

of the San Bernardino County Bar Association

Vol. 40, No. 9-10 Our 137th Year July-August 2012

From the

President’s Desk

By

Jennifer M. Guenther

The Courts in Crisis

What do you do with a Court System that

has been operating on a shoe string

budget for years and judiciously saving

its pennies for a rainy day? According to

Governor Brown and the Legislature in the

budget approved on Wednesday, you kick it

in the shins and take away its lunch money.

In a fresh round of budget cuts proposed

last month and approved this week, Governor

Jerry Brown cut another $544 million to

court funding. These cuts push the total to

more than $1 billion drained from an already

anemic court system over the last five years

and a million plus dollar hit to the San

Bernardino Court System.

Our Inland Courts have been expecting

such cuts to eventually occur and, despite

operating a budget that is nearly a full

one-third less than many other County Court

Systems in California, have carefully set aside

a rainy-day-fund to allow the doors to remain

open during budget shortfalls.

The rainy day has now come in the form of

a monsoon. The budget cuts are severe and

widespread and the impacts on a court system

already running in a streamlined fashion are

dire. It is likely to have a direct impact on

access to justice in the far reaches of our

County- the largest county in the Country

– by the shuttering of courthouses, and on

those remaining open by the reduction in

personnel.

Instead of being able to rely upon the rainyday-fund

for shelter, however, the Governor

and State Legislature have decided to reclaim

those funds for other purposes. The buffer that

has been planned into the operating budget

for the next year and as a way to transition to

even yet leaner times will be gone in one year

– not because it will be used up, but because it

is slated to be pilfered by the State.

(continued on page 2)

Passing of

The Honorable Robert J. Kelleher,

U.S. Senior District Judge,

Central District Of California

Chief Judge Audrey B. Collins announced the

passing of Senior District Judge Robert J. Kelleher,

who died Wednesday morning, June 20, 2012. Judge

Kelleher, who was 99 at the time of his death, was the

oldest serving federal judge in the nation.

Judge Kelleher was nominated as a United States district judge for the

Central District of California by President Richard M. Nixon, and received

his commission on December 21, 1970. He assumed senior status on March 5,

1983.

Judge Kelleher received his Bachelor of Arts degree from Williams College

in 1935 and his Juris Doctor degree from Harvard Law School in 1938. After

graduating from law school, he began his legal career as a corporate trial

attorney in New York City, then served as an associate attorney with the U.S.

Department of the Army in Los Angeles from 1941 to 1942. After serving in

the U.S. Naval Reserve from 1943 to 1945, Judge Kelleher worked in private

practice before returning to public service in 1948, serving as an Assistant U.S.

Attorney for the Southern District of California until 1951. He returned to

private practice in 1951, and practiced in Beverly Hills until his appointment to

the bench in 1970.

A former tennis player and official, Judge Kelleher was inducted into the

International Tennis Hall of Fame in 2000, and was presented with an official

Hall of Fame ring on July 3, 2011. During his long association with the sport,

which began as a ball boy at Forest Hills, he won the Canadian mixed doubles

championship in 1947 with his wife Gracyn Wheeler Kelleher, who predeceased

him in 1980, and was the non-playing captain of the triumphant 1963 U.S. Davis

Cup team. He also served as President of the U.S. Lawn Tennis Association,

now known as the U.S. Tennis Association, from 1967 to 1968. As the USLTA’s

principal delegate to the International Lawn Tennis Federation, the worldwide

governing body of tennis, he was instrumental in making open tennis a reality in

1968. In later years he continued to be an ardent supporter of the sport, serving

as president and on the board of directors of the Southern California Tennis

Association and remaining involved with the national organization.

Upon learning of Judge Kelleher’s death, Chief Judge Audrey B. Collins

issued the following statement:

“Today our court has lost a great judge and a dear friend. Judge Kelleher

contributed to the life and history of the court, and continued to handle

cases well into his 90’s. In addition, his institutional memory of events often

contributed greatly to the administration of the court. It was a privilege to hear

Judge Kelleher recount the history of this court, his experiences during World

War II, and how he helped to bring tennis into the modern era. Although Judge

Kelleher had been ill for some time, he was a fighter until the end, enjoying life

and loving his family and this court.”

Judge Kelleher is survived by his son, Jeffrey Kelleher; daughter, Kathleen

King; and grandchildren. In lieu of funeral services, arrangements for a

memorial service are pending. In honor of Judge Kelleher, the flags outside the

courthouses of the United States

District Court for the Central District of California will be flown at half staff.


2

San Bernardino County Bar Association July-August 2012

...President’s Desk (continued from page 1)

To put this into perspective, the County of San Bernardino

Superior Court system already has the highest number of cases

assigned to each judge as compared with any other Court system

in the State of California. The Judicial Council of California

estimated, in 2011, that an additional 65 judicial officers are

needed to handle the County’s case load. Instead, as judges

retire or move on, seats are remaining vacant for lack of funding.

The Court of Appeals is similarly situated.

If you do not do litigation, you might say “So what?” I don’t

need to worry about a case getting to trial. At first glance, it

may seem that the courts are simply subject to the same cuts

that many other sectors are facing. Schools, for example, are

also in an equal state of financial crisis in this State. What is not

immediately seen, however, is the direct impact the backlog in

the Court system has on the economy and underlying businesses

which rely upon it to ensure that dispute get resolved, contracts

are paid, and partnerships run smoothly.

As it stands, a simple breach of contract matter or collection

action takes more than a year to be resolved through the

Court system. Such cases generally involve very limited

documentation and time on behalf of the attorneys and business.

While the trials also tend to be short in duration, it is extremely

difficult to get the matters on the crowded court calendar. In

the meantime, the business must deal with not only the payment

of attorneys’ fees, but also more the limited availability of cash

as a result of their inability to obtain a judgment to collect. It

is now estimated such cases may take 3-5 years to find an

available courtroom.

More complex litigation involving shareholder derivatives,

allegations of fraud, injury, or other types of litigation matters

can impact a company’s ability to obtain financing or its market

share. And yet these matters are even harder to place on the

Court calendar given the extended duration of many of these

types of trials.

Rather than allowing companies to use their available funds to

grow their business and develop new innovations and products,

the companies must wait in a holding pattern until disputes are

resolved. In an area where unemployment continues to hover

at 12%, such as the Inland Empire, any impact on business is

strongly felt. Furthermore, given the additional $544 million in

proposed budget cuts, this economic impact is going to continue

well into the foreseeable future.

The result is that individuals with traffic tickets are waiting

hours in line to resolve their matters, only to be turned away and

told to come back tomorrow. Family law issues are remaining

stagnant while the assigned judges make every effort to hear the

large number of cases before them each day. And business with

disputes pending before the Court are unable to have their issues

resolved in a timely manner that allows them to move forward

in a timely manner.

I encourage everyone to contact the legislature and the

Judicial Council and request that the IE not be forgotten or

pilfered anymore. And even more importantly, when you are

in the Courthouses, please be extra kind and patient with the

people who work there – they are doing more on less than ever

before.

The

San Bernardino County

Bar Association

gratefully acknowledges the following sponsors

of our

13th Annual

Kaufman Campbell Awards:

Diamond Sponsors

Empire Legal Group

Fullerton, Lemann, Schaefer & Dominick

Hon. Joseph B. Campbell Inn of Court

Platinum Sponsors

Gresham, Savage, Nolan & Tilden

Gold Sponsors

Eileen Kaufman

Granowitz, White & Weber

Silver Sponsors

Law Office of Steven A. Becker

Bronze Sponsors

IVJC

Law Office of Kerrie C. Justice

Law Office of Richard Muir

Varner & Brandt, LLP

Solo Sponsors

Charles Fuertsch, Esq.

Hon. Brian S. McCarville

Hon. Michael M. Dest

Nurse Betty Lyons

Floral Arrangements

IVAMS

Commemorative Wine

Law Office of Michael A. Scafiddi

Wine Service

Laurel Starks


July-August 2012 “The oldest continuously active bar association in California” 3







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4 San Bernardino County Bar Association July-August 2012

San Bernardino

County

Project Graduate

News!

Hooray! The Project Graduate Partners

presented the first training session

for a group of 5 mentors on June 2, 2012.

The location was perfectly suited for us at

the Vineyard Training Room in Rancho

Cucamonga.

At this 4 hour training presentation,

mentors learned about the Public Education

System and Education Laws that pertain to

Foster Youth. A third module utilized the

workbook “A Youth and Family Guide to

College and Beyond” which outlines the

step-by-step process for a teen to succeed

in High School and attend college. This

handy workbook can be used to highlight

the many tasks and achievements a teen

collects during their secondary education,

and serves as a tool for their journey to

college.

Also available were a number of study

guides for several different High School

exams (do you remember the SAT or

the ACT?), Advanced Placement tests in

various subjects and catalogues of colleges

throughout California and the U.S. These

will be of great help to foster youth seeking

to improve their chances of gaining

scholarships, and entrance to certain

colleges and universities. Besides college

or university goals, career planning is also

an integral part of what Project Graduate

considers as ‘occupational motivation’.

The last module focused on the need for

mentorship of foster youth to be viewed

as a unique experience. Studies show that

mentorship contributes to better outcomes

for foster youth with fewer depressive

symptoms, less stress and greater

satisfaction with life at age 18, despite

the mentor encounters being of a formal

system such as Project Graduate.

We intend to move forward

thoughtfully and with consideration of

the youth above all, and in conjunction

with other supportive partners such as the

caregivers, Children and Family Services

Social Workers, Educational Liaisons,

Independent Living Programs and many

others.

We are still in need of mentors who

would be interested in being a part of

Project Graduate. It is our vision for our

mentors to engage with foster youth to

provide occupational motivation with

focus on High School Completion and

achievement beyond dependency. Our

next training session will be held on

July 21, 2012 from 9-1 at the Vineyard

Training Room.

If you or someone you know would

like to join us, please contact the Project

Graduate representative Lori-anne

Elinsky, CFS Supervisor of Foster Youth

Education Programs.

The commitment consists of: 1)

Monthly meetings with the youth at their

Academic Bench Conference (the “ABC”

meeting is with the Honorable Judge B.

Buchholz of San Bernardino Juvenile

Dependency Court), 2) Monthly contact

with the youth (other than their ABC

meeting) and/or attend the structured

events provided by the Project Graduate

team. 3) Be open-minded to the ways in

which you, being kind and compassionate

will enrich the live of a foster youth. RSVP

to Lori by calling (909) 891-3610 (M-F) or

email her at lelinsky@hss.sbcounty.gov.

52 WEEK BATTERERS INTERVENTION PROGRAM

52 WEEK CHILD ABUSE TREATMENT PROGRAM

ANGER MANAGEMENT PROGRAM

All Programs

Offered in

English & Spanish

311 FAST TRACK EVALUATION

PARENTING GROUPS

INDIVIDUAL THERAPY

GROUP THERAPY

FAMILY THERAPY

730 CERTIFIED

WORKMAN’S COMPENSATION

Programs Are

Court Approved

VICTIMS OF CRIMES COUNSELING

Chino Office

11780 Central Ave. Suite 100

Chino, CA 91710

(909) 517-2020

(909) 517-2022 Fax

Fontana Office

16823 Arrow Blvd.

Fontana, CA 92335

(909) 355-3888

(909) 355-9966 Fax


July-August 2012

www.sbcba.org

5

FROM THE DESK OF THE PRESIDENT OF

THE HON. JOSEPH B. CAMPBELL

INN OF COURT

BY JUDGE BARBARA A. BUCHHOLZ

Alas, the Joseph B. Campbell Inn year has officially come to

a close. We have had our end of the year Annual Banquet

on June 13, 2012. Our speakers were the Presiding Justice of

the Court of Appeal, Justice Manuel Ramirez and Presiding

Judge of the San Bernardino Court, Judge Christianson. I

would like to tell you that the information they imparted to the

group was good news, but unfortunately, the information was

rather bleak on the financial front, particularly for the Inland

Empire and our court system. Both Justice Ramirez and

Judge Christianson were candid with the audience about the

grim forecast, but were equally inspiring with their message

that they would not give up the fight and encouraged all

who practice in their courts to let their voices be heard up in

Sacramento about the needs of the court.

On a more positive note, we had a great Inn year, with

fabulous informative presentations at our monthly meetings,

a unique opportunity for our members to glimpse the inner

workings of the mental health court in our yearly field trip,

and the opportunity to hear from our newest California

Supreme Court Justice Goodwin Liu. For all those who have

attended throughout this Inn year, I hope that you found the

agenda inspiring and informative.

If you were not able to join us for this last Inn year, do not

despair, our new Inn year will begin again in October 2012

under the leadership of our new Inn President, Commissioner

Diane Anderson. A long-time Inn and board member,

Commissioner Anderson brings a wealth of new ideas and

an excellent understanding of the history and workings of our

Inn. I am very excited about her upcoming tenure as the new

Inn President. Indeed, I am very excited about next year’s

board.

The new board members will be as follows:

President -Commissioner Diane Anderson,;

President- Elect - Kevin Bevins,

Vice President - Jack Osborn,

Secretary - Mark McGuire,

Treasurer - Lisa DeLorme,

Program Chair - Donna Connally,

Membership Chair - Kathleen Patterson,

Counselor - Greg Brittain,

Judicial Liaison - John Pacheco,

and “yours truly” as Past President.

Leaving our board this year are two outstanding board

members who have provided invaluable service to this board

and its membership. Traci Whaley-Patino, has served on

the board for many years and has held almost every board

position possible, including serving as our president for two

years and in the past president position for the last year. Her

contribution, through her many years of service, cannot be

measured. We will miss her greatly, but we wish her success

in all future endeavors. The other departing member is John

Zitny, who has been on the board for several years and has

made an impact as well. John has acted as our Secretary for

the last year and his copious notes/minutes and his input at the

board and general meetings have been substantial. We wish

John well in his new commitments. We are saddened by both

Traci’s and John’s departures, but I would like to thank them

personally for their hard work and dedication to the board.

If you are interested in being a member of the Joseph B.

Campbell Inn of Court we will be accepting applications

shortly for the Inn year which will start in October 2012.

Check the Inn website for more details. If you have any

questions about the Inn or regarding joining the Inn this

upcoming Inn year, feel free to talk to any board member or

view the Inn website.

It was a pleasure and an honor to act as the Hon. Joseph B.

Campbell Inn President this year and I hope that you have

enjoyed these articles as much as I have enjoyed writing

them.

I bid you farewell,

Hon. Barbara A. Buchholz

ELWOOD M. RICH

JUDGE OF THE SUPERIOR COURT (RET.) JUDGE

FOR 28 YEARS

MEDIATIONS ARBITRATIONS

INDEPENDENT ADR

(951) 683-6762

CALIFORNIA SOUTHERN LAW SCHOOL

3775 ELIZABETH ST. RIVERSIDE CA 92506

Michael B. Lynch, MPA

Polygraph Examiner Since 1974

(951) 529-2486

mlynch@lawyerspolygraph.com

mlynch@lawyerspolygraph.net

390 Orange Show Lane

San Bernardino, California


6 San Bernardino County Bar Association July-August 2012


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July-August 2012

“The oldest continuously active bar association in California”

7

The World Before

the Bar Association

by John Zitny

The San Bernardino County Bar Association was organized

on December 11, 1875. What was the practice of law

like before the Bar Association? Who were the attorneys and

what were they like? Presented here are some of the colorful

personalities.

Alden A.M. Jackson (The Colonel)

The first person who held himself out to be a lawyer in

San Bernardino County was Alden A.M. Jackson. He came

from San Francisco in 1854. He was not a combative soul;

he was adept at avoiding conflict. Some may call him timid.

Nonetheless, he called himself “Colonel” Jackson, even though

he had never been in the military.

The Colonel commenced his career by posting hand-written

flyers stating he was available, for a fee, to draft legal

documents. His law library consisted of one book named, “The

New Clerk’s Assistant.” It must have been a pretty good book

because the Colonel developed a reputation for settling disputes

outside of the courthouse. However, little did people know that

if a court appearance was necessary, the Colonel would shake

like the co-counsel in My Cousin Vinny.

The Colonel became proficient at marital dissolutions. The

divorce ceremony was held in his office and was very solemn.

He would prepare a document called, “Articles of Separation

and Bill of Divorce.” Much formality went into the signing.

The best quill pens were used and the documents were prepared

with much flourish. The parties left believing that they were

divorced and free to remarry. Unfortunately, the Colonel, not

being a “court” lawyer would fail to finalize the divorce. There

were many unhappy clients when they discovered they were

not divorced. There were many angry clients when they were

accused of bigamy.

On one occasion, the Colonel was forced into a courtroom

setting. He was pressed into a jury trial while representing a

young man named Tom Morgan, who was accused of assault

and battery. During his closing argument, the Colonel started to

doubt his own words. In a meek voice, he began to agree with

the prosecution that his client was guilty. But since his client

wasn’t really such a bad guy, the jury should go easy on his

sentencing. The client, when seeing his lawyer backpedaling,

uttered something like, “What the…!?” Morgan jumped up

and elbowed the Colonel to the side. The client then finished

the closing argument by telling the jury that he was not guilty

because he was acting in self defense. The verdict was not

guilty.

Q.S. Sparks

Mr. Sparks came to San Bernardino in 1853 from San

Francisco. He was known for his verbal ability and his intellect.

He became a skilled litigator, especially defending those

accused of crimes. While he had the natural gift of oratory,

he was not one to study or be prepared. He was considered a

brilliant public speaker.

Once, he had a client charged with grand larceny for stealing

a horse. However, he could not get the preparations done.

When questioned by his associate, Mr. Sparks said he would,

“Rely on God Almighty, Q.S. Sparks and the jury.” After a

mesmerizing argument, he won the trial. This was even though

an eyewitness testified that he saw the client steal the horse

from the owner’s pasture. And, the client was caught fleeing

from town…while still on the horse. Q.S. Sparks was so

persuasive he could talk the Temperance Society into getting

drunk.

William Pickett

William Pickett arrived in 1858 from San Francisco. He

brought with him the first law library in San Bernardino. He

had his office in a little one-room structure on Third Street in

downtown San Bernardino. He gave permission to a newly

elected Justice of the Peace to hold court in his office until a

suitable courtroom could be found.

Soon thereafter, Pickett found himself in a jury trial in his

own office in front of the magistrate. The court continually

ruled against his evidentiary arguments. Pickett could not

get his evidence in. And, he could not keep the opposition’s

evidence out. Having enough, Pickett leaped up and pointed

towards the door. “Get out of my office,” he yelled at the

judge and jury. The judge instructed the jury to meet at another

location. However, the jury tended to “tarry” and “mosey,” as

was the custom at the time. Some moseyed to get something

called Sarsaparilla. Others tarried by the Wells Fargo station.

Still others went home. Only a couple of jurors made it to the

appointed location. No jury, no trial. So the case ended up

being dismissed.

This is a small sampling of life before the bar association.

My next article will highlight some of the founders of the San

Bernardino County Bar Association. See you then.

The iPad Lawyer

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(Learn how to make the iPad work for you!)

Created specifically for legal professionals, this seminar will show

you how to effectively use an iPad in a legal environment.

In-house seminars at group rates are available.

For more information and pricing, contact:

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8 San Bernardino County Bar Association July-August 2012


July-August 2012

“The oldest continuously active bar association in California”

9

JULY-

AUGUST

ALMANAC

By: Tony Sears

All times Pacific Daylight Time (PDT), which is

minus seven (7) hours from UTC (Universal Time

Coordinated).

July Almanac: The full Moon in July is known as the “Thunder

Moon” and will rise in east southeasterly sky on Tuesday, July

3 at 8:07 p.m., having gone full at 11:53 a.m. On July 4, the

nearly full Moon will rise at 8:53 p.m. and will provide an

awesome back drop for the finale of the Independence Day

pyrotechnics.

July is a great time to see the central bulge of the Milky Way

in the southern sky. Look for the constellations of Scorpio and

Sagittarius. Scorpio is a great constellation. It really does look

like a scorpion, with the curled tail poised to strike.

August Almanac: The August Full Moon will rise at 7:27

p.m., PDT on August 1 and is known as the “Green Corn

Moon”. The Green Corn Moon goes full at 8:28 p.m. and will

hit your eye like a big pizza pie... .

On August 11-12, 2012, the Persied meteors are active.

This year will be favorable for the Persieds, which appear

to emanate from the constellation Perseus, “The Hero”. The

crescent Moon will rise at set at 12:46 a.m on August 12, so it

will not be a factor. This meteor show is a great one, because it

occurs pretty much all night, especially after midnight. Based

on past experience, you should be able to see a few meteors

from our area. If however, you are at Lake Powell, Cabo San

Lucas, Arrowhead, Mammoth, Yellowstone, or Sedona, you

will truly be amazed. Just look overhead in the northeastern

sky. A chaise lounge and a blanket are all you need.

Garden Notes: Best time to water is first thing in the morning

or in the evening. I personally prefer to water in the morning,

so the plants can uptake the moisture during the hottest part of

the day. I also think it good idea not to water the foliage too

much or you run the risk of a fungi. Try to keep the water at

the base of the plant.

Too many tomatoes? Nice problem to have. You can manage

your tomato crop by picking the tomatoes as soon as the fruit

turns color. At that point, it is big as it going to be. By picking

at this stage, your tomatoes will ripen on your counter at a

nice even pace. Since the tomatoes are now inside, there is

no chance for the possums, raccoons, squirrels, or (bad) dogs

will get at them. Sure, you can leave a few on for vine ripened,

warm summer day, juicy deliciousness.

July/August Recipe: Sweet Corn! Sweet Corn are the varieties

of corn that have been developed for higher sugar content and

a shorter (80-95 days) growing season. Sweet Corn is white,

yellow & white, or yellow. The white and yellow/white

varieties are typically the highest in sugar content. Field Corn

or Dent Corn makes up 99.5 % of all corn grown worldwide, is

not so good to eat off the cob. There are literally more than 350

uses for field corn from corn meal, cattle feed, corn oil, corn

chips, ethanol production, high fructose corn syrup, whisky

making to corn fibers used in making tube sox. Go Huskers!

For our purposes, stick with Sweet Corn. Go to your Farmer’s

Market or roadside stand in Chino and get some sweet corn. If

you can, try to get some yellow corn. It is still sweet, but with

a more grassy-earthy taste. If you are invited over to a summer

bbq potluck, this is the perfect thing to bring. Here are a few

tips:

1. Boiled Corn. Appropriately fill a large pan with water.

Bring water to boil. Add 3 Tbsp. of kosher salt. Please do not

freak out about the salt. It doesn’t really affect the corn. It is

added to increase the boiling point of the water, which in turn

properly cooks the corn. Once the water is at a rolling boil, turn

off the heat and leave it off. If you are serving 1⁄2 ears, break in

halves before cooking. Carefully place your shucked corn in

the water and cover. The corn will be done cooking about five

(5) minutes and you can hold your corn for up to two (2) hours

in the pot. It will stay warm enough to melt your butter.

2. Grilled Corn with husks. Carefully pull back the husks

and remove the silks. Pull the husks back up and tie with

cooking twine. Soak corn in clean cool water for about 20-30

minutes, then place on the grill for 10-15 minutes. Often the

corn will pick up a little smoky char, which is fine by me.

3. Foil Wrapped Corn (on the grill). This is another fantastic

way to enjoy sweet corn and is well suited for a potluck. Clean

your corn. Have some aluminum foil ready to wrap the corn.

Inside the foil, use a tsp. of olive oil, kosher salt, and fresh

cracked pepper. You can add freshly chopped rosemary. My

buddy, Craig Weinstein, uses soy sauce in the foil-awesome.

You can make a chile powder lime butter by mixing 1 tbsp

of chile powder with a stick of softened butter and two tbsp

of lime juice. Combine, then place in ramekin or other small

container. Place in fridge to solidify, then you can place the

chilled butter in the foil with the corn. You could do the same

with fresh dill and lemon juice. Wrap up foil tight and place

on grill for 5-7 minutes. You will hear the oil sizzling. Place

on plate and serve.

4. Leftover ideas. Extra corn on the cob holds in the fridge

for several days. If you have any cooked corn leftover, you can

use a sharp knife and cut the kernels off the cob. Place in sealed

container or ziploc bag. This corn can be added to salads,

salsa, cornbread, pizza topping, waffles, soups, or warmed up

in a bowl with butter, salt & pepper.

Buon Appetito! Tony Sears


8 San Bernardino County Bar Association July-August 2012

THE iPAD FOR LAWYERS:

Trial Preparation Tricks You’ll Actually Use

(Part 1)

by Scott J. Grossberg, Esq.

Here’s the challenge for those of us who are both litigators

and iPad users: Can the iPad truly be a powerful tool for

trial preparation?

The answer: Yes! In this series of articles, I want to share with

you the more powerful apps that allow me to be a litigation road

warrior.

Prior to the iPad, I would use OneNote as my digital Trial

Notebook on the PC and Outlook for scheduling/project

management (Okay, I’ll show my age and tell you that I still

miss the powerful and versatile DOS program called Lotus

Agenda . . . but it is no more). When I switched to a Mac, I

started using Growly Notes in place of OneNote, but continued

to use the Mac version of Outlook. When I learned that Growly

had no intention of producing an iPad version of its terrific

software, I created my own workflow for litigation preparation

that permitted me to do all that I needed on my iPad.

Now, those of you who have attended my iPad for Lawyers

seminars know that I am insanely practical. So, I must digress

and confess that, even though I do all of my planning now on

the iPad, I still carry a paper version of everything into Trial.

Every technology junkie, if they’re being honest, must confess

that eventually the technology we love to wield will inevitably

fail and at the worst possible time. When that happens, you

(and the judge) will be glad you have a paper backup.

Let’s start with how I easily handle litigation project

management now. Generally, my project management starts

with a new case - even before a Trial date is actually set. Let’s

face it - I want to plan the end-game long before the other side

does. My litigation design, then, all revolves around an app

ironically called “SG Project” from FourthFrame Technologies.

[http://itunes.apple.com/us/app/sg-project/id373004554?mt=8]

With SG Project, I am able to keep track of all important

deadlines, pleadings, cut-off dates, and other Pre-Trial and

Trial activities that I want to periodically manage and review.

It also easily permits me to assign entries to other attorneys to

handle. Naturally, I am able to continually update the status of

how far a particular task is in the completion process. Further,

I can assign color codes to entries for a quick visual cuing

ability.

SG Project runs only in landscape mode on the iPad. This

permits the greatest amount of screen real estate for your use.

The real power behind this app for me is that, in addition

to naturally allowing you to create new projects, you can

duplicate existing projects. This duplication feature allows you

to create a Trial Project template once, copy it, and modify it

for a particular case. I’m all about using my time wisely and

this app eliminates repetitive work for the busy litigator.

After you create a project, the SG Project app has headings

across the top of the grid that is created: Task Name (the title

of a particular activity will appear here), Work (how many

work days will be spread over the total number of calendar

days), Start (the start date), End (the end date), % Done (how

far into the completion process you are), People (the attorneys,

paralegals, or assistants you assign to a task), and Predecessors

(events/tasks you specify as having to occur prior to the current

event/task). While I may start a new project in advance of

a Trial date being assigned by the court, the real power of

SG Project takes place once you know the date Trial is to

commence. With the first day of Trial known, you can then

start assigning realistic and controlling dates that will easily

permit you to stay on top of your case instead of rushing around

to complete things at the last moment. SG Project allows you to

be incredibly proactive!

So, let’s get down to what I track in SG Project. Here is my

secret formula for planning out a case in the Pre-Trial and Trial

stages. Each one of the following items is entered as a separate

entry initially (remember, I only had to create this once and

then I duplicate this template for each Trial):

Case Management Conference

Final Status Conference

Prepare Motion for Summary Judgment

Summary Judgment Hearing

Mediation

Mandatory Settlement Conference

Supplemental Discovery to Plaintiff/Other Parties

Dismiss Parties

Independent Medical Examination

Update Trial Status/Evaluation/Budget

Notify Clients of Trial

Notify Experts of Trial

Obtain Experts

Prepare CCP 998 Offer

Organize Evidence

Witness Information

Witness Depositions

Organize Pleadings

Statement of the Case

Prepare Trial Brief

Judicial Notice

Prepare Trial Notebook

Expert Depositions

Site Inspection With Experts

Prepare Motions in Limine

SDT’s to Third Parties/Facilities

Demand for Exchange of Experts/Documents

Motion to Bifurcate/Sever

Special Verdict

Bill of Particulars (CCP 454)

Notice to Attend Trial/Bring Documents

SBP for Witnesses

Supplemental Expert Designation

Motion to Compel Discovery

Meeting with Clients/Witnesses re Trial Preparation

Meeting with Experts re Trial Preparation

Trial Exhibits/Demonstrative Evidence

Keynote Presentation

Voir Dire Outline

Jury Instructions

Jury Questionnaire

Deposit Jury Fees

Prepare Opening Statement

Prepare Closing Argument

Motion to Exclude Expert Witnesses

OSC re Mediation/Motion to Amend Answer

Trial


July-August 2012

www.sbcba.org

11

You will notice that these events are not necessarily in

the chronological order I want them for a case. You see, SG

Project is also somewhat of a brainstorming tool. You can

enter events as they come to you and then freely rearrange

them later on to suit your particular case. It should go without

saying (but I’ll do it anyway) that you can continually modify

the actual event titles or delete any events that are not suitable

or relevant to a particular case.

While we’re talking about modifying a litigation project to

your heart’s desire, you should know that SG Project gives you

the power to create hierarchal sub-events under your primary

headings. For example, under the Obtain Experts activity, I

might specify particular areas of expertise as they come to

mind after reading the pleadings or through the discovery

process.

One project review secret that I use all the time is assigning

colors to the various attorneys, paralegals, and assistants that

I might be using on a case. By creating a color-coded Trial

management plan, I can powerfully review my outline by

task designee. Oh, by the way, you can assign more than one

person to a task, if needed!

Finally, you can share your SG Project in a number of

different ways. I generally export my project whenever it

is updated or revised. I like sending it in PDF format to the

various people working on a particular project with me. You

can also link your project with a Dropbox account.

By now, you can readily see how SG Project on your iPad

will make you more productive, more proactive, and more

powerful as a litigator! Who could ask for more?

Next time, I’ll explore using the iPad as a digital Trial

Notebook!

If you enjoyed this, I’d be grateful if you share this with

others. That’s right, go ahead and help spread this information

by emailing it to a friend, or sharing it on Twitter, Facebook,

or Google+. And, if you’re interested in finding out how I can

make a presentation to your law firm, please contact me at

909-483-1850 or email me at sgrossberg@cgclaw.com.

© 2012 by Scott Grossberg. All Rights Reserved.

Mr. Grossberg is a founding partner of the Southern California

law firm of Cihigoyenetche, Grossberg & Clouse. He is a featured

speaker and published author on numerous topics including media

relations, social media, technology, public speaking, memory, and

various other cutting edge concepts. Mr. Grossberg’s “iPad Lawyer”

seminars provide legal professionals with the ability to truly harness

the potential of Apple’s tablet. He is regularly called upon to address

the impact of emerging technology and social media, suggest

policies and procedures that should be in place, and to discuss

liability exposure for this new way of doing business. He can be

reached at sgrossberg@cgclaw.com.


12 San Bernardino County Bar Association July-August 2012

Text Message

Preservation

by Sharon D. Nelson, Esq.,

John W. Simek and

Jesse M. Lindmar

© 2012 Sensei Enterprises, Inc.

With an average of 193.1 billion text messages sent

every month in the United States, the importance and

use of text messages in litigation is ever-increasing. As a

consequence, the importance of text message preservation

for e-discovery is also growing. Understanding how text

messages can be preserved and the pitfalls to avoid is

essential. While we recommend engaging the services of

a digital forensics service provider who is familiar with the

complexities of mobile phone forensics, there are certain

situations in which the end-user can at least create a preserved,

forensically sound copy that a digital forensics expert can later

access and produce data from.

For the purpose of this article, we are assuming that the text

messages are sent or received by a mobile telephone. We’ll

start by lumping most of the mobile phones in use today into

two major categories: Smartphones and Feature Phones.

The most popular Smartphones would include Apple’s

iPhone, Google’s Android, Microsoft’s Windows Phone,

and RIM’s BlackBerry devices. Feature phones are pretty

much everything else; having some of the basic “features”

of smartphones, but lacking in overall integration with the

phone’s operating system and hardware, and with limited

user-customization options.

Feature Phones

For feature phones, the end-user is limited as to their

preservation options. Depending on the service provider, the

feature phone may or may not be equipped with a Subscriber

Identity Module (SIM) card. The SIM card contains

information that will validate the phone on the service

provider’s network, but can also be used as a repository for

received text messages. Text messages can also be stored on

the phone itself, and in some situations, messages are stored

on the phone and SIM card. There are a number of SIM card

readers and software products that, when used together, allow

a user to explore and manage the contents of a SIM card.

However, if the user doesn’t fully understand how to use the

hardware/software safely, he or she could just as easily alter or

permanently erase the very data they are trying to preserve.

There are several products used within the forensic

community to preserve text messages from many feature

phones - from both a SIM card and the phone itself. This

will result in an electronic copy of the text messages being

extracted from the SIM card and/or phone, and will include

not only the content of the message, but also the date and time

the text message was sent/received and information about the

sender (phone number and/or contact information for a phone

number if the user has added them to the phones address

book). Furthermore, SIM cards and many feature phones

have a limited number of “slots” to store text messages,

and the number of slots will vary across manufacturers and

can even vary across similar phone models from the same

manufacturer. When these slots are full, the phone will begin

to overwrite the older text messages with the newer ones - a

process that renders the older messages unrecoverable. With

an average user sending or receiving sixty text messages per

day, the likelihood of this happening increases dramatically.

For a digital forensic expert, the ability to recover deleted

text messages from a feature phone is dependent on the make/

model of the phone, the length of time that has passed since

the messages were deleted, the number of new text messages

that have been sent/received since the messages were deleted,

and whether the deleted messages have been overwritten.

Furthermore, the make/model of phone will need to be

supported by the forensic hardware/software the expert uses -

if the hardware/software cannot communicate with the phone,

the data cannot be accessed and preserved. Recovery from a

SIM card is a little more straightforward as its architecture is

standard; however, the same usage rules apply to it.

This is why we never make promises about what we can

recover. It is more or less a crap shoot every doggone time.

Smartphones

For smartphones, and depending on the make and model of

phone, there are several options for preserving text messages.

Although a smartphone may be equipped with a SIM card,

text messages are not typically stored there. Instead they

are stored in a database file or another organized collection

format, located on the phone itself - it is this file(s) that will

specifically need to be preserved.

The iPhone, in conjunction with iTunes (Apple’s software

program for playing, downloading, saving, and organizing

multimedia files on a computer or Apple iOS device), will

allow an end-user to create a backup of the existing user-data

from the phone - including the database file that stores the

text messages. When the user connects the phone to iTunes,

this backup will typically happen automatically, but a user can

also initiate the backup at any time. iTunes will only store

one backup at a time, so creating a new backup will cause

the deletion of a previously created backup. The backup file

will be buried in a system area of the computer used to create

the backup, but with a little assistance it can be located. A

user won’t be able to access the data in the backup without

special software, but a qualified digital forensics expert will

be able to open the backup, access the text message database,

and extract the necessary text messages. To a degree, deleted

text messages may also be recoverable from the existing text

message database. However, if a significant amount of time

has passed, and depending on the user’s text messaging habits,

deleted text messages will not be recoverable via this method.

A digital forensics expert will need to create a more thorough

backup of the phone that will allow them to potentially recover

deleted text messages using more advanced techniques.

Similar to the iPhone, BlackBerrys also allow for a backup

to be created that will contain existing text messages. This

backup can be created using the BlackBerry Desktop Manager

software that comes with the phone or is available for

download from the BlackBerry website. Unlike the iPhone,


July-August 2012

“The oldest continuously active bar association in California”

13

multiple backup files will exist on the computer used with the

Desktop Manager. Like the iPhone backup, a user won’t be

able to access the data in the backup without special software,

but a qualified digital forensics expert will be able to open

the backup and extract the necessary text messages. Deleted

text messages can only be recovered using a combination of

specialized hardware and software used by digital forensic

service providers specializing in mobile phone forensics. In

some situations, only the removal and analysis of the phone’s

memory chip, a process that will destroy the phone, will

allow for the recovery of deleted text messages. For obvious

reasons, this route is ordinarily something undertaken

primarily by law enforcement.

Google Android and Windows Phone smartphones do not

have a native method for preserving text messages. A digital

forensics expert will use tools and techniques specific to the

type of phone they encounter. However, for the end-user,

there are several third-party applications that advertise the

ability to backup existing text messages from these devices.

Any application the end-user chooses should offer the ability

to export the messages and their attributes into an uneditable

format, so there is no question as to their authenticity.

Not all makes/models of phones are supported by forensic

products and electronic versions of the existing text messages

are not always obtainable. In these situations, even the best

forensic examiner will be forced to painstakingly take digital

photographs of the existing text messages as they natively

appear on the mobile phone. And yes, these are admissible in

court. As far as deleted text messages are concerned, if they

still exist on the phone, even in a fragmented form, a digital

forensic expert should be able to recover them as long as the

analysis computer can communicate with the phone.

Regardless of the method used, it should not alter any of

the original text messages, the process and results must be

reproducible and the preserved information must be identical

to the original source information. Although an end-user

may be able to assist with some of the initial stages of text

message preservation, a digital forensics expert will be able

to extract and produce verified and accurate text message data

from the preservation data set. In most situations, engaging

a digital forensics expert to complete the entire project

life-cycle - from preservation to production - will allow for a

more accurate and defensible use of text message data.

The temptation to DIY this sort of project should be

resisted. If you’re going to throw the dice and gamble monies

on the recovery of text messages, hiring an expert will give

you the best odds of rolling a seven.

The authors are the President, Vice President and Director

of Computer Forensics at Sensei Enterprises, Inc., a

computer forensics and legal technology firm based in

Fairfax, VA. 703-359-0700 (phone) 703-359-8434 (fax)

sensei@senseient.com (e-mail), http://www.senseient.com.


14 San Bernardino County Bar Association July-August 2012

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Intellectual Property Attorney/Patents, Trademarks,

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HI-CALIBER PRIVATE INVESTIGATIONS: State licensed/

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LAW OFFICE OF CHRISTIAN ANYIAM: Full service law practice

handling civil, family, real estate, labor/emp., PI, immigration, and

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JUDGMENT COLLECTION California courts have inherent and

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ATTORNEY w/more than 10 years exp. in Civil Litigation, Real

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FOR RENT: Directly across the street from the Victorville

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Executive window office available, across from courthouse.

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Office with view and receptionist/waiting room area available.

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within walking distance from Riverside court houses.

Asphalted parking avail. in back. Perfect for the new attorney

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EMPLOYMENT

Corona law office has opportunity for law school

student looking for internship in the area of probate and

estate planning. Fax resume to Jo Ann (951) 278-8290.

THE ELDER AND DISABILITY LAW FIRM, a leader in

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1. A Bachelors degree in accounting, business, computer,

or any legal studies; or a high school diploma with at

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2. Be patient and able to work with the elderly and

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3. Be pleasant on the phone;

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Please send your resume and salary requirement to

estherwang@san-bernardino-elder-law.com, or to Esther

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Avenue, Suite 103, Redlands, CA 92373. No phone calls

please.

SEEKING ESTATE PLANNING/PROBATE PARALEGAL.

Palm Desert law firm seeks an experienced estate

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submit resume to Jeremy Ofseyer, Nethery & Ofseyer LLP,

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NOTICES

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drugs. 800/222-0767; 909/683-4030, 24 hours - 7 days a

week.

SBCBA Members: Advertise FREE for 6 mo. in Classifieds.

Continue ad for $10 per month in advance. Non-members

$10 a month in advance. 909/885-1986 or email

bulletin@sbcba.org.

CONFERENCE ROOM AVAILABLE for depos, etc. at

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NOTICE FROM INLAND COUNTIES

ASSOCIATION OF PARALEGALS.

SBCBA MEMBERS! We want to notify you of a

service that ICAP provides to attorneys. If you are

looking for a paralegal/legal assistant or secretary

you can contact ICAP and they will send out a blast

to their membership advising of the opening and

will also post it on their job board.

You will need to provide them with the job posting

information, either just in an email or any prepared

job advertisement flyer, including contact

information for the person to whom résumés and

cover letters should be sent. An email alert will

then be sent to ICAP members to notify them of

the opportunity. The information will be placed

on their member’s job board. ICAP’s members

appreciate being notified of such opportunities.

Should you have any questions, contact Director/Vice

President Connie S. Johnson at programs@icaponli

ne.org.


July-August 2012

“The oldest continuously active bar association in California”

15

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16 San Bernardino County Bar Association July-August 2012

BULLETIN

of the

San Bernardino County

Bar Association

Workers’ Compensation/Social Security Disability Issue?

MAYBE WE CAN HELP!

“California’s Oldest Continuously Active

Bar Association

Organized December 11, 1875

In Affiliation with the

High Desert Bar Association

2011-2012 Board of Directors

OFFICERS

Jennifer M. Guenther

President

Hon. Khymberli S. Apaloo

President-Elect

Bradley R. White

Vice-President

Kevin B. Bevins

Secretary-Treasurer

John S. Lowenthal

Immediate Past President

DIRECTORS-AT-LARGE

Hon. Diane I. Anderson

Victor J. Herrera

Barbara A. Keough

Jack B. Osborn

John W. Short

M. Wayne Tucker

Sandy L. Turner

John R. Zitny

Donald F. Cash, Donna V. Siofele, Francisco T. Silva, Darla A. Cunningham, Scott M. Rubel

We have over 70 years of experience in representing injured and disabled workers before the

Workers’ Compensation Appeals Board and Social Security Administration. If you have clients who

need help with Workers’ Compensation or Social Security problems, please have them call our

office for a free consultation. We pay referral fees in accordance with State Bar Rule 2-200(A).

WORKERS’ COMPENSATION LAW CERTIFIED SPECIALISTS

STATE BAR OF CALIFORNIA / BOARD OF LEGAL SPECIALIZATION

Lerner, Moore, Silva, Cunningham & Rubel

Ph: 909/ 889-1131• Fax: 909/884-5326

141 North Arrowhead Avenue, Suite 1

San Bernardino, California 92408-1024

www.injuryatwork.com

Executive Director

Claire E. Furness

“The mission of the San Bernardino County Bar

Association is to serve its members and

the community and improve

the system of justice.”

555 North Arrowhead Avenue

San Bernardino, CA 92401-1201

(909) 885-1986 Fax: (909) 889-0400

E-mail: bulletin@sbcba.org

Web: www.sbcba.org

The Bulletin of the San Bernardino County Bar

Association is published 11 times a year. Our

circulation is approximately 1,100, including: our bar

membership of 900, 95 state and federal judges, state

&local bar leaders, legislators, media, and businesses

interested in the advancement of our mission.

Articles, advertisements and notices should be received

by the bar office no later than the fifteenth of the month

prior to the month of publication. For current advertising

rates, please call the number listed above. Please direct

all correspondence to the above address.

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