FALL 2014
Trial Practice Section
Newsletter
GET TO KNOW YOUR JUDGE:
KIMBERLY COLWELL
Alameda County
Bar Association
I N S I D E T HI S IS S UE :
GET TO KNOW YOUR JUDGE:
KIMBERLY COLWELL
MESSAGE FROM THE CHAIR
VLSC: PRO BONO OPPORTUNITIES
WELCOME TIELA M. CHALMERS AS
ACBA’S CEO
ECONOMIC CHALLENGES FOR COUNTY
LAW LIBRARIES
CONTACTING THE COURT
LITTLE KNOWN FACTS ABOUT PUBLIC
LAW LIBRARIES IN CALIFORNIA
DISCOVERY FACILITATION PROGRAM
AT THE ALAMEDA SUPERIOR COURT
COVENANT HOUSE CALIFORNIA:
GRADUATING HOPE!
WHY IT’S TIME EMPLOYERS REVISIT
THEIR CELL PHONE REIMBURSEMENT
POLICY
HOW TO RETAIN AND PREPARE
EXPERTS AND EFFECTIVELY PRESENT
EXPERT TESTIMONY MCLE
Outside of the courthouse, Judge Colwell’s passion is fly fishing
ACBA HOLIDAY RECEPTION
JUDICIAL ASSIGNMENTS – CIVIL
After working as a civil trial lawyer
for 25 years, Kimberly Colwell was
appointed to the Superior Court of
California, County of Alameda by
Governor Jerry Brown on December
29, 2012. While Judge Colwell had
handled plaintiff’s personal injury as
well as business litigation for both
plaintiffs and defense early in her
career, the majority of her legal
tenure was spent at the Oaklandbased Meyers Nave law firm
representing public entities. At
Meyers Nave, her practice focused
on federal civil rights cases,
employment discrimination, and
Americans with Disabilities Act
claims. She also worked on high-
profile police civil rights litigation.
Consequently, it was not terribly
surprising that after serving
approximately four months handling
Superior Court misdemeanor
arraignments, and another six
months handling small claims
matters in the morning and civil
settlement conferences in the
afternoon, she was reassigned to
Department 18 as a Direct
Calendar judge, where she has
been working for the past year.
Judge Colwell embraced her Direct
Calendar assignment with vigor to
trim her case load from about 700
to approximately 485. She credits
Judge Kimberly
Colwell
Department 18
Administration Building,
1221 Oak Street, Oakland,
California 94612
Phone: (510) 267-6934;
Fax: (510) 891-5304
E-mail:
[email protected].
ca.gov
Court Clerk: Sheila
McMullen
Approximate Caseload:
485 cases (as of Sept 2014)
Page 2
JUDGE COLWELL, continued from p. 1
this reduction to aggressively
setting c ase -m anagem ent
conferences and pushing cases
along to trial or settlement. She
also voices appreciation for a
stellar research assistant who
helps her get through
complicated motions and make
decisions efficiently.
Judge Colwell hears motions on
Wednesdays and Fridays,
although her courtroom clerk
usually schedules only five
motions per day. Still, hearings
on motions tend to be
scheduled within four to six
weeks of their filings. If the law
compels a result, Judge Colwell
says she feels an obligation to
legal counsel to resolve cases
by way of dispositive motion,
although admittedly, it is
infrequent that there are no
disputes of material facts that
allow for summary judgments.
Judge Colwell says, however,
that motions for summary
adjudication are underused and
that they can be effective at
narrowing issues and facilitating
a settlement or a better-focused
trial.
selection can begin on the
morning the matter is set for trial.
Judge Colwell allows a more
cordial and direct interchange
durin g c as e - m anage m ent
conferences than might exist in
other courtrooms. She wants to
know how she can help
counsel, and often discovery
disputes are discussed in these
conferences in addition to
updates on how a case is
moving along toward settlement
or trial.
Five cases, or sometimes more,
are set for trial each Monday.
Pre-trial conferences are set
within a month of trial, and
counsel are expected to submit
all proposed jury instructions,
proposed verdicts and motions
in limine five days before the
conference. As a former trial
lawyer, Judge Colwell says it’s
important for attorneys to know
exactly what case they will be
trying by the time they leave a
pre-trial conference. She says
this facilitates settlement, as
well as efficiency, so that jury
Scheduling Information for Dept. 18
Trial Schedule
Monday-Thursday 9:30 a.m. - 4:30 p.m.
CMC Schedule
Monday, Tuesday, Thursday and Friday
beginning 9:00 a.m.
L&M Schedule
Wednesday and Friday mornings beginning 9:00
a.m.1
Settlement Conf.
Individually Scheduled
Ex Parte Schedule
Monday - Friday at 9 a.m.
Scheduling of all hearings should be made by e-mail only. Litigants must
copy opposing counsel on all correspondence.
1
In exceptional circumstances, motions may be set at other
times.
Judge Colwell uses the “sixpack” method of seating
prospective jurors, and she
provides standard voir dire
questions that are awaiting
jurors when they are seated in
the jury box. She warns that too
many attorneys are unpracticed
in conducting voir dire and ask
the same question repeatedly,
which yields little useful
information. Judge Colwell will
“pre-instruct” the jury before
opening statements by reading
aloud the introductory and other
instructions that counsel agree
may be helpful and appropriate.
Are there any pet peeves? Yes.
Attorneys too often disregard
repeated requests to provide her
with courtesy copies of any
motions and pleadings filed.
The court has gone paperless,
and with the courthouse shortstaffed, it takes time to scan
documents to ensure the judge
will have access to all pleadings
filed before the hearing. If you
want to win points with Judge
Colwell and make sure that your
papers have been read, provide
courtesy copies to her courtroom
for all court filings.
In the end, Colwell says, she
was surprised how much fun it is
to be a judge. In fact, she
considers it the best job she has
ever had. She finds people to
be genuinely interesting, and her
TRIAL PRACTICE SECTION NEWSLETTER
PAGE 3
MESSAGE FROM THE CHAIR
with
Welcome to our Fall 2014 installment of the ACBA Trial Practice
Section Newsletter!
While she misses depositions
taken in faraway places and
trying cases in different
courthouses, she now has a
better opportunity to view
complex employment litigation,
as well as some off-beat
disputes, which she finds to be
her
most
interesting
assignments. It appears that
Judge Colwell not only likes
being a Superior Court judge,
but enjoys her Direct Calendar
assignment.
This year is flying by faster than a rapidly approaching filing
deadline. The change of seasons is mirrored by the changes
experienced by litigators practicing in Alameda County. One of the
major changes at the Superior Court was the introduction of the new
and improved DomainWeb. Many of us like the new features, while
others are troubled by the high cost of viewing documents that in the
recent past could be accessed free of charge.
job involves interacting
many types of people.
About the Author: David
Goldman is a partner at the law
firm of Wendel Rosen Black &
Dean LLP where he handles a
wide array of employment law,
business litigation and
competitive business practices
counseling and litigation.
ACBA TRIAL PRACTICE
NEWSLETTER TEAM
Michael
Shklovsky
CREATIVE
DIRECTOR &
EDITOR-INCHIEF
[email protected]
James Hankins
VOLUNTEER COPY EDITOR
[email protected]
Email filing of CMC Statements is no longer available, but the Civil
Clerks’ Office hours have been extended from 2:30 p.m. until 4:30
p.m., at least through the end of the year. The Court is also exploring
a court-wide expansion of the pilot Discovery Facilitation Program,
currently in place in Departments 20 and 23.
Important changes are taking place at the Alameda County Bar
Association as well. Starting in May, Tiela M. Chalmers assumed her
duties as ACBA’s chief executive officer. I invite you to read
Chalmers’ in-depth profile in this edition of the Newsletter. The
arrival of a new CEO brought a renewed effort to strengthen and
institutionalize ACBA’s relationship with the Court. This included
holding a “town hall” meeting on the issue of Domain Web fees,
focus groups to guide the Court’s strategic planning process, as well
as featuring news from the Court in ACBA’s e-Newsletter. The ACBA
is also working on implementing the long-range strategic plan,
adopted by the Board in November 2013, which includes increasing
outreach to younger attorneys, exploring ways to increase funding
available to the VLSC, and finding ways to improve the “member
experience.”
Here, at the Trial Practice Section, we are evolving with the times.
We are maintaining the course on what we do best: developing
exciting MCLE programs, offering news and information to our
members through this Newsletter and facilitating and expanding pro
bono opportunities available to young lawyers looking for more
experience and more accomplished litigators looking to give back to
their communities. Together with staff, we have also made
substantial improvements to our section’s webpage, and we are
increasing our efforts to maintain an ongoing dialogue and facilitate
exchange of news and information between the Bench and the Bar.
As always, we welcome your input and participation! With several
vacancies opening up on our Executive Committee, I invite you to
apply for a position by contacting Hadassah Hayashi at
[email protected]. We are also on the lookout for MCLE
suggestions and topical articles of interest to local practitioners. If
you have a recommendation for an MCLE program, or if you are
interested in publishing an article in our Newsletter, please email me
at [email protected]. See you in court!
—Michael Shklovsky, Chair, ACBA Trial Practice Section
Page 4
VLSC: PRO BONO OPPORTUNITIES AVAILABLE TO TRIAL ATTORNEYS
taking the case.
My firm
generously allowed me to accept
the representation pro bono.
Flora, an elderly widow, was
about to lose her home of more
than 50 years to a predatory
lender. In need of money to pay
her son’s funeral expenses, she
had been convinced by a
mortgage broker to tap some of
the equity in her home by
refinancing with a hard-money
lender.
The loan terms truly shocked
the conscience: Flora’s existing
fixed-rate traditional loan had
been replaced with a variablerate interest-only mortgage. The
lender and br ok er paid
themselves more than $34,000
in points and fees. Flora, by
c ontras t, r ec ei v ed s om e
$23,000 in cash proceeds, while
her monthly loan payment
jumped from $675 to over
$2,200. Flora, a retired nurse
who lived on a fixed income,
was unable to make the new
mortgage payment and quickly
faced foreclosure1.
Through her daughter, Flora
sought assistance from HERA
(Housing and Economic Rights
Advocates), which in turn
contacted the Alameda County
Bar Association Volunteer Legal
Services Corporation (VLSC). I
had earlier signed up with VLSC
to take referrals, and VLSC
asked if I would be interested in
The scheduled trustee’s sale
was only a week away. We
quickly obtained a TRO, and
then a preliminary injunction
barring the sale. Ultimately,
Judge Tigar granted our motion
for summary adjudication,
finding that the loan violated
California’s Anti- Predatory
Lending Law. We wound up
settling the case on terms which
allowed Flora to keep her home
debt-free and also included a
substantial cash payment.
This is one of my favorite war
stories from nearly 20 years of
litigating civil disputes. In private
practice, the line between right
and wrong, justice and injustice,
is rarely so clearly drawn. And
this is what VLSC offers its
volunteers: the opportunity to
serve the public interest and do
justice, while at the same time
gaining invaluable litigation
experience.
I met recently with Director of
Access Services, Elizabeth
Hom, to learn more about pro
bono opportunities for Trial
Practice Section members. She
outlined three principal ways for
us to get involved:
Staff one of VLSC’s pro-per
clinics
VLSC provides pro-per
assistance in divorce, child
custody, visitation and support,
paternity, spousal support,
guardianship, debt collection
defense,
bankruptcy,
immigration and low-income
landlord eviction matters. Clinics
are led by experienced attorneys
and are often co-sponsored by
local legal service providers or
the courts. In these clinics
volunteer attorneys help clients
understand the legal process
and complete the applicable
forms to be filed in court.
Join VLSC’s
Referral Panel
Pro
Bono
VLSC provides pro bono legal
services, ranging from advice
and counsel to full-scale
representation of individual
clients in many areas of law,
including adoption, debt
collection defense, family law,
guardianship, imm igration,
landlord/tenant, non -prof it
corporations, power of attorney
and wills.
Participate in VLSC’s Mentor
Program
V L S C ’ s M e n t o r P r o g r am
matches experienced lawyers
with recent admittees or
attorneys who are learning a
new practice area. The program
is case-driven – a mentee
agrees to take on a particular
matter pro bono, and the mentor
agrees to serve as a resource
through the life of the case. The
program allows the mentee to
take pro bono referrals he or she
might otherwise feel insufficiently
experienced to handle. At the
same time, it gives the mentor
the opportunity for meaningful
pro bono participation without
having to take on all the
responsibilities that attend formal
representation in a legal
proceeding. To further ease the
mentor’s burden, VLSC provides
not only conflicts information, but
Page 5
TRIAL PRACTICE SECTION NEWSLETTER
case-specific malpractice
coverage as well.
My experience with the Mentor
Program has been enjoyable
and fulfilling. I specialize in real
estate litigation and was
matched with a recent
admittee who had agreed to
represent a landlord pro bono
in an unlawful detainer action2.
The case was extremely
challenging, and I had the
opportunity to provide
meaningful input on strategy
and tactics at virtually every
stage of the proceeding – from
noticing the tenant’s default all
the way through post-judgment
proceedings.
Along the way, I was reminded
that much of what we do as
litigators is not taught in law
school nor written in practice
guides. For example: What do
you do when you’ve obtained a
favorable ruling from the bench
in open court, but your
proposed order has gotten lost
in the system, and repeated
efforts to follow up with the
clerk have been for naught?
My suggestion: Go in ex parte
and present your order to the
judge in person. Result: Order
signed.
This is but one example of the
types of solutions we learn
only through mentoring or
hands-on
experience.
Through VLSC’s Mentor
Program, I was able to pass
along some of the knowledge
I’ve learned over the years.
Meanwhile, my mentee was
able to successfully prosecute
the unlawful detainer to
conclusion, gaining valuable
experience every step of the
way. And the victimized
landlord ultimately got his
rental unit back. All pro bono
publico (“for the public good”).
VLSC currently places
approximately 60 cases per
year through its referral panel
and Mentor Program. VLSC
would welcome additional
participation by mentors and
mentees to increase the
numbers of cases placed. The
practice areas most in demand
include unlawful detainer, debt
c ol lec t io n d ef ens e and
domestic violence restraining
orders, with frequent
opportunities as well in
bankruptcy, family law, and
trusts and estates.
For more information – or even
better – to find out how you
can volunteer with VLSC,
contact Elizabeth Hom at
[email protected].
About the author:
Carl
Ciochon is a partner at Wendel
Rosen Black & Dean LLP and
co-chair of its Real Estate
Litigation
Group.
He
represents plaintiffs and
defendants in real estate
related matters and other
complex commercial disputes.
________________________
1
These facts are all public record
in James v. Instant Mortgage
Lending Corp. et al., Alameda
County Superior Court No.
RG08398130.
2
ACBA VLSC handles unlawful
detainer cases solely on the
landlord side; potential clients are
screened based on economic
need and merits of the case. In
this case, the tenant was
terrorizing the neighbors, literally
destroying the property and
refusing the landlord access to
make repairs mandated by the
City of Oakland.
Page 6
THE TRIAL PRACTICE SECTION WELCOMES
TIELA M. CHALMERS AS ACBA’S CEO
said ACBA Board
Robert Frassetto.
President
Chalmers worked as a litigation
attorney with Farella Braun +
Martel LLP in San Francisco for
more than ten years. She also
worked for over 14 years at the
Volunteer Legal Services
Program of the Bar Association
of San Francisco, eventually
leading 30 staff and 1,800
volunteers as executive director.
I sat down with Chalmers to get
acquainted, and learn about her
background and goals.
In her high school and college
years, acquaintances would tell
Tiela M. Chalmers that she
should become a lawyer
“because you like to argue so
much.” At the time, she thought
law school was “way too
mainstream” for her. Instead
she planned on moving “back to
the land” and being a carpenter.
“One summer working on a
house in West Virginia showed
me that I have absolutely no
talent in that arena, and so cured
me of that notion.”
It appears that her high school
and college friends were
prophetic in their assessment of
her career potential, because on
Ma y 1, 2014, Chalm ers
assumed her duties as the
Alameda
County
Bar
Association’s chief executive
officer. “Tiela brings a wealth of
legal services expertise and a
passion for access to justice,”
Chalmers describes her parents
as very progressive and involved
in social issues. She credits
them with instilling her “with very
strong social justice values.” As
a child, she walked picket lines,
marched against the Vietnam
War and took part in sit-ins for
civil rights. Her father was a
college professor who taught
courses on labor and industrial
relations across the United
States and abroad. The young
Chalmers grew up shuttling
between Champaign-Urbana,
Ill., and Ann Arbor, Mich., as well
as India, Singapore and
Malaysia.
“I complained bitterly at the time
about all the moving, but now
I’m grateful for the broad
perspectives it has given me,”
says Chalmers. She hopes that
she honors her parents’ memory
with her involvement today.
Chalmers decided to go to law
school after a post-college
series of near-minimum wage
jobs taught her “what a privilege
it is to have a job that is
intellectually stimulating, and
where you can really make a
difference in the world.” Legal
education turned out to be a
good academic fit: Chalmers
graduated magna cum laude
from Hastings College of the
Law.
Chalmers was first interested in
practicing labor law or working
as a public defender. But labor
law seemed like a tough place to
start, and the public defender
only accepted applicants who
had passed the Bar exam, so
Chalmers found herself at
Farella, “a wonderful and
progressive firm.” Chalmers
adds that the firm was “filled with
smart people thinking
creatively,” with the lawyers and
staff members caring about their
work and about their community.
“It was a great introduction to the
practice of law.” After ten years,
and admittedly a little litigationweary, Chalmers decided to
spend more time on public
interest work.
Her early volunteer service with
the Lawyers’ Committee for Civil
Rights, Volunteer Legal Services
Program and Swords to
Plowshares steered her career
toward pro bono legal services.
Before joining ACBA, Chalmers
served as a nonprofit consultant
on a number of projects,
including coordinating the
TRIAL PRACTICE SECTION NEWSLETTER
Shriver Housing Project in Los
Angeles, as well as working with
the American Bar Association
and a national working group on
updating the pro bono
standards. She also worked with
several nonprofit legal services
to expand their pro bono
programs and plan for the future.
Chalmers has received many
awards for her work, including
Pro Bono Professional of the
Year by the National Association
of Pro Bono Professionals and
Attorney of the Year by the
Legal Aid Association of
California, both in 2011.
amount to offer younger
attorneys – from educational
programs to networking events,
from mentoring to leadership
opportunities – but we need to
make sure that we make these
offerings accessible, and that
younger attorneys hear about
them in a timely way. We are
inves tigating bu ildi ng an
‘incubator’ program that would
take new graduates and train
them to run a ‘low-fee’ solo or
small firm practice, thus meeting
a desperate need in the
community and providing
employment opportunities for
those attorneys.”
Having collaborated with former
ACBA CEO Ann Wassam and
Director of Access Programs
Elizabeth Hom on several
occasions, Chalmers has
“nothing but the deepest respect
for the work that they have
done.” She applied for the CEO
position with ACBA because,
while enjoying consulting work,
she missed the chance to work
with an organization over the
long run. “This seemed like a
wonderful opportunity to work
with a terrific organization and
make a difference!”
The Alameda County Superior
Court has always been one of
A C B A ’ s “ m os t im p o r t a n t
partners,” Chalmers says, and
she is working to institutionalize
and strengthen that relationship.
The ACBA held a “town hall”
meeting and focus groups with
the Court, and begun to feature
news from the Court in its enewsletter. Of course, VLSC and
the Court Appointed Attorneys
Program (CAAP) work closely
with members of the bench, not
to mention the generous support
of the Court with Continuing
PAGE 7
Legal Education classes and
events organized by members of
the ACBA.
Chalmers looks forward to
continuing the work of building
the community, and she hopes
that members will find a way to
get involved. “W hether a
member joins a section, or
serves on an ACBA committee,
or becomes a VLSC volunteer,
or a member of the CAAP or
Lawyer Referral Service panels,
attends our CLEs or comes to
our social and networking events
– there is truly something for
everyone here. This is not (in
many ways) your grandpa’s bar
association, and I hope people
will reach out and connect.”
Chalmers adds that she is
always delighted to talk to
members about which of
ACBA’s activities would meet
their needs and interests.
- Michael Shklovsky
Not surprisingly, one of
Chalmers’ priorities is to work
with VLSC to continue its
programs and build more. She
hopes to find ways to scale
VLSC’s efforts, and her focus at
the outset will be to explore
ways to increase the resources
for the program. “One of the
wonderful things about VLSC is
that it meets a community need
and a need of our members – to
have an avenue to give back,
and to get experience.”
Chalmers stresses the
importance of strengthening
ACBA’s outreach to, and
inclusion of, newer attorneys:
“The ACBA has an enormous
Tiela Chalmers with ACBA Past-President Cheryl Hicks and
President-Elect Toni Mims-Cochran at the ACBA 2014 Summer Reception
Page 8
Pictures of the Alameda County Law Library following the 1989 Loma Prieta earthquake
ECONOMIC CHALLENGES FOR COUNTY LAW LIBRARIES
The 6.0 earthquake that shook
the entire Napa Valley and
awoke many of us in the wee
hours of August 24 reminds us
of these easily forgotten truths:
Life is uncertain and everchanging. Disasters really do
happen. Being prepared is
essential. And being flexible and
facing challenges head-on in the
aftermath can mean the
difference between perishing or
surviving.
California’s county law libraries
are facing challenges every bit
as real as an earthquake, but
you probably won’t hear about it
on the evening news. Although
law libraries are mandated by
state statute (Business and
Professions Code §6340), for
the past seven years they have
suffered declining funding while
the cost of the materials they
provide has risen sharply.
These libraries get no money
from tax revenues. Instead, they
are funded by a small portion of
civil filing fees as well as
donations from users.
Contra Costa County Law Library
Martinez (Main)
Pittsburg
Richmond
A.F. Bray Courts
Richard E. Arnason
George C. Carroll
Building
Justice Center
Courthouse
1020 Ward St., 1st
1000 Center Dr. #1045 100 37th St. #237
Floor
Pittsburg, CA 94565
Richmond, CA 94805
Martinez, CA 94553
(925) 252-2800
(510) 374-3019
(925) 646-2783
M-F 8am-12pm; and
M-F 8am-12pm; and
M-F 8am - 5pm
12:30-4:30pm
12:30-4:30pm
Hard economic times mean hard
choices have to be made. In the
case of law libraries in the Bay
Area such as Alameda County
and Contra Costa County,
serious attention is given to
collection management.
"Reductions in filing fee revenue
– 95 percent of California county
law library income – have forced
us to analyze closely which
books and databases in our
libraries get used," says Mark
Estes, director of the Alameda
County Law Library.
Alameda County Law Library
Oakland (Main)
Hayward
125 Twelfth St.
224 W. Winton Ave.
Oakland, CA 94607
Hayward, CA 94544
M,W,F 8:30am-6pm M-F 8:30am-5:00pm
T,Th 8:30am-9pm
(510) 670-5230
(510) 208-4832
Page 9
TRIAL PRACTICE SECTION NEWSLETTER
Alameda County Law Library today
This means that law librarians
have to make difficult decisions
about which materials to retain
and which can be discontinued.
For example, if criminal defense
attorneys make up a high
percentage of a law library’s
users, it would not make sense
to cancel its subscription to
Matthew Bender’s California
Criminal Defense Practice set.
Conversely, if a library has an
extensive collection of federal
law materials, but they are rarely
used and there is no federal
court in the area, librarians may
choose to spend their scarce
funds on other materials that are
more in demand.
The libraries’ holdings are
scrutinized on an ongoing basis.
“This is really just good
librarianship,” says Carey
Rowan, director of the Contra
Costa County Law Library. All
books and online services must
be evaluated on a regular basis
to ensure the cost of the
subscription is justified.
Some choices are more painful
than others, because librarians,
like any other professionals,
have biases and individual
preferences. "We've cancelled
personal favorites because they
weren't used by attorneys or the
public," says Estes.
The Contra Costa County Public
Law Library recently cancelled
its Commerce Clearinghouse tax
library in print but added the
subscription in an online format.
W ith s ix p u bl ic s e rv ic e
computers in the main branch
and 12 machines system-wide,
patrons have no problems in
accessing these subscriptions.
Patrons do occasionally inquire
about the print publication, but
once they learn that the
materials are now available via
computer, the issue is resolved.
And sharing of resources is
given considerable attention. If a
subscription is likely to be
dropped due to low demand and
high cost, good librarianship
mandates research to determine
whether other libraries in the
area carry the publication. That
way, if the title is requested, the
patron can be referred to another
library nearby.
Continued on page 10...
The Alameda County Law Library serves users at its main branch in
Oakland and its smaller Hayward branch. The Contra Costa County
Public Law Library offers two satellite branches, one in Pittsburg and
one in Richmond, as well as its main branch in Martinez. Visit in
person or online at http://www.co.alameda.ca.us/law/, and
www.cccpllib.org.
Search online catalogs at http://tinyurl.com/km75flq and
http://tinyurl.com/4xvhtj6.
And for additional information on this subject, email Mark Estes at
[email protected] or Carey Rowan at
[email protected].
Page 10
Contra Costa County Public Law Library
Another way law librarians have
coped with declining budgets
involves looking “outside the box”
for additional funding sources.
Several libraries offer Minimum
Continuing Legal Education
(MCLE) materials and programs –
at prices attractive to attorneys –
to generate revenue while
maintaining a focus on needed
services. The Alameda County
Law Library offers a number of
conference rooms for use at a
modest fee and an ongoing slate
of MCLE programs.
Some libraries offer visitors their
superseded materials with a
suggested monetary donation.
And some have updated their
websites to facilitate charitable
cash contributions.
Anyone visiting the Contra Costa
County Law Library may notice
there are not as many books on
the shelf as there were in
previous years, but users will
also find public computers with
access to Heinonline, Westlaw
and LexisNexis.
The Alameda library offers an
excellent collection of print
materials and online services.
Both libraries have primary and
secondary material to assist
litigators in preparing cases.
Most important of all are trained
staff eager to assist customers in
locating the materials they need.
Ec onom ic c halleng es f or
California law libraries are as
jarring as last summer’s
earthquake, but law librarians
are unshaken in their
determination to continue to
provide the highest possible
level of service.
IMAGINE YOUR AD HERE
Do you have a service, product or event you want to let ACBA members and other
professionals know about? Place an ad in our Newsletter! The electronic version is made
available to approximately 1,500 lawyers, judges and law students, with hard copies
distributed to civil departments in Alameda County, as well as Bay Area public law libraries.
Ads are $500 for a full page, $250 for a half page, and $150 for a quarter page, with
discounts for non-profits. Please contact Valerie Brown Lescroart, at [email protected] if
you are interested in placing an ad!
Page 11
TRIAL PRACTICE SECTION NEWSLETTER
Little Known Facts About Public Law Libraries in California:

County law libraries have been in existence for more than 100 years, serving all Californians
needing information about the law.

California law requires all counties to have a public law library in the county seat.

Because law libraries serve several user groups: legal professionals, professionals in fields other
than law, students and the general public, more than half of the users of law libraries are not legal
professionals.

Law libraries get no funding whatsoever from the tax base.

The majority of funding (well over 90 percent) comes from a small portion of civil filing fees.

Law libraries have been unable to increase their portion of civil filing fees in seven years, although
the cost of legal materials has risen more than 60 percent during that period.

Many library users are granted court fee waivers, which means no revenue for the court or the law
library, yet these individuals often need a great deal of help in the library.

An estimated 25 percent of law library users are researching topics (criminal law, estate planning,
contract language, academic research) not involving litigation in which a filing fee would be
generated.

The law library receives only $2 for a Small Claims filing. Because Small Claims Court is a pro per
court, litigants often request considerable assistance in law libraries.

Without the resources, services and programs provided by law libraries, many Californians would be
denied access to justice.
BOOKS ON DISPLAY AT THE OAKLAND MAIN
LAW LIBRARY
Learning the Fundamentals…
• The First Trial: Where Do I Sit? What Do I Say?
• Sharpening Your Trial Skills: What to Say, How to Say It
• Trial Advocacy Basics
• How to Try a Jury Case
• Advocacy Words: A Thesaurus
• Trial Technique & Evidence
• The Effective Deposition
• Preparing Witnesses: A Practical Guide for Lawyers and their Clients
Advanced Tips and Techniques...
• David Ball on Damages
• Theater Tips & Strategies by David Ball
• Advanced Negotiation and Mediation Theory and Practice
• Deposition Evidence
• Effective Expert Testimony
• How to Do Your Own Focus Group
• Mastering Written Discovery: Procedures & Tactics
• Winning on Appeal: Better Briefs & Oral Arguments
• Discovery Problems & Their Solutions
DO YOU NEED TO
CONTACT THE
ALAMEDA COUNTY
SUPERIOR COURT?
A matrix of Civil Judges may be
found on page 20
EMAILING THE COURT
Court clerks may be emailed by
using the following email:
Dept.[insert#]
@alameda.courts.ca.gov
TENTATIVE RULINGS
(866) 223-2244
PAGE 12
DISCOVERY FACILITATION PROGRAM
AT THE ALAMEDA COUNTY SUPERIOR COURT
Few things are more frustrating
to a civil litigator than a
protracted and costly discovery
dispute. Discovery motions
consume valuable time and
energy, and judges are often
reluctant to rule on the merits, or
even allow a discovery motion to
be filed, without first exhausting
informal efforts to resolve the
dispute.
Discovery facilitation is a
voluntary pilot program that was
launched in September 2013 to
make litigation faster, easier and
more cost-effective. It currently
applies to cases assigned to
Departments 20 (Judge Robert
Freedman) and 23 (Judge John
True III). Plans are under way,
however, to slowly roll out this
program court-wide starting in
early 2015. Revised local rules
have already been drafted and
submitted to the Rules and
Forms Committee of the court.
New rules are expected to come
into effect in January 2015.
Under the pilot program, the
parties can request the
assistance of a discovery
facilitator who can be selected
from the panel maintained by the
court. The panel is comprised of
a c t i v e p r i v a t e a t t o r n e ys
practicing civil litigation and in
good standing with at least 10
years of experience, or retired
judges. Applicants must have a
working knowledge of the
California Discovery Act. One
hour of preparation time and the
first two hours of the session
with the facilitator are free.
Facilitation may take place
before the filing of a discovery
motion or while the motion is
pending, but no later than 15
calendar days before the
scheduled hearing date. To
participate, parties are required
to complete a “Stipulation to
Part ic ip ate in D is c o ver y
Facilitation Pilot Program”
posted on the court’s website.
TRIAL PRACTICE SECTION NEWSLETTER
Good-faith participation in
discovery facilitation before filing
a discovery motion with the court
will
satisfy the “meet and
confer” requirements of CCP §
2016.040. While participating in
discovery facilitation will not
automatically extend the 45-day
deadline to file a motion to
com pel further disc over y
response, parties may use the
stipulation to toll the 45-day
deadline until an agreed-upon
date.
Often the involvement of the
discovery facilitator resolves the
dispute, and sometimes settles
the entire case. The parties will
then file a stipulation for the full
or partial resolution of the
matter. In the event the parties
are unable to resolve the
discovery dispute with the
facilitator, any previously
scheduled hearing on a pending
motion shall proceed as
planned, or either party may file
a discovery motion prior to the
45-day deadline or the stipulated
alternative deadline.
Regardless of the outcome of
the disc overy f ac ilitation
conference, the facilitator shall
file a report with the court and
serve it on all parties. The
opinion is confidential and is not
published on DomainWeb. In the
event of a full resolution, the
report shall include a statement
indicating the dispute was
resolved. In the event of a partial
resolution or no resolution, the
report shall contain a brief
PAGE 13
summary of the dispute and
contentions of the parties, any
legal or factual analysis made
by the discovery facilitator in
connection with facilitator’s
role in attempting to resolve
the dispute, and a statement
indicating whether moving and/
or opposing parties or counsel
of record met and conferred in
good faith.
If you have questions
concerning the court’s
Discovery Facilitation
Program or about joining the
facilitator panel, please email
Jason Stein, ADR program
administrator, at
[email protected]
.ca.gov or call at (510) 8916261.
In light of the expected courtwide expansion of the
Discovery Facilitation
Program, we encourage you to
learn more about this program
and to apply to become a
facilitator on the court’s panel.
MEETING THE DEMAND
The expansion of the Discovery Facilitation Program to all civil
direct calendar departments starting in early 2015 will increase the
demand for discovery facilitators on the panel maintained by the
court. To meet the anticipated demand, the court seeks
experienced, currently practicing litigators to serve as discovery
facilitators.
Criteria for facilitators:
1. Currently an active civil litigator with:
a. 10 years of civil litigation practice.
b. Active California State Bar membership in good
standing.
c. Working knowledge of the California Discovery
Act.
OR
2.
A retired judge.
Under the current rules, facilitators donate up to one hour of
preparation time and up to two hours of free facilitation services.
Subsequent time is billed at agreed-upon rates.
Page 14
COVENANT HOUSE CALIFORNIA: GRADUATING HOPE!
PART OF THE GET TO KNOW YOUR LOCAL COMMUNITY ORGANIZATION SERIES
For many Bay Area students
and their families, spring brings
the joy and angst that inevitably
accom panies graduation
season. It is a time of profound
contradictions. Parents rejoice
in the boundless possibilities
the future holds for their young
people, while indulging in a lastminute self-induced panic
attack (Do they have enough
credits to graduate? Have they
been accepted to the
educational institution of their
choice … or, at least, an
acceptable alternative? Did we
adequately fund their 529?
Given the job market, will we be
able to remodel their vacant
space into a new media room?).
And then, after the caps and
gowns are returned, we tell
them we are proud of them, we
love them and will always be
there for them.
But who will “be there” for those
who are not so fortunate? For
an estimated 10,000 youth
living on Bay Area streets,
graduation season will pass
unnoticed. For many of these
homeless youth, the only rite of
passage is to have escaped
physical or sexual abuse, to
have been discarded by their
family or unceremoniously “aged
out” of a broken foster care
system. Every day, they must set
aside their hopes and aspirations
to focus on surviving another
night on the street without
shelter, food or safety. This is
the population served by
Covenant House California
(CHC).
On the Waterfront
Unexpectedly located at the
intersection of Harrison and
Second streets, within Jack
London Square’s Produce and
W a t e rf r o n t n e i g h b o r h o o d ,
Covenant House occupies a
large, industrial-looking building,
an unremarkable structure where
remarkable things happen. For
more than 25 years, Covenant
House has served at-risk youth
living on California streets,
without
judgment
or
proselytizing.
In addition to
providing the immediate
necessities of food, shelter,
clothing and safety, CHC
instills a sense of dignity and
hope in young people often
healing from abuse and
deprivation.
Page 15
TRIAL PRACTICE SECTION NEWSLETTER
Residents
Covenant House California
opens its doors 24 hours a
d a y, o f f e r i n g e s s e nt i a l
services, resources and
support to homeless clients
aged 18 to 24. These are
young people who found
themselves on the street as a
result of abuse, trafficking,
family dysfunction, economic
hardship or “aging out” of
foster care. According to CHC,
in Alameda County, 50 percent
of all foster care youth
emancipating at age 18 will
experience homelessness
within six months.
A 2006 select committee
hearing of the California
Legislature reported 70
percent of state prison inmates
have spent time in foster care.
While on the streets, these
young people are at greater
risk for physical abuse (more
than half of CHC clients report
being victims of violence while
homeless), sexual exploitation,
mental health problems,
substance abuse and death.
Indeed, it has been estimated
that 5,000 homeless youth die
each year in the United States
as a result of assault, illness or
suicide. (National Conference
of State Legislatures).
Programs and Services
CHC provides comprehensive,
free services (food, clothing,
shelter, individualized case
management, life-skills
training, educ ation and
em plo ym ent pr ogr am s ,
medical and mental health
services, and recreational
activities) at two campuses in
the Bay Area and Los Angeles.
CHC’s residential program is a
three-level system beginning
with immediate care, which
leads to transitional housing
and, eventually, self-sufficient
independent living:
Level 1: Immediate needs
Homeless youth initially enter
CHC’s Crisis Shelter, which
operates 24 hours a day, 365
days a year. In the Crisis
Shelter, youth are provided
with a safe and secure
environment with healthy food,
clean clothing and access to
support services.
Level 2: Transitional living
CHC’s transitional living
program, Rights of Passage
(ROP), teaches basic skills for
independent living such as
financial literacy and job
preparedness.
Residents in
ROP are required to be
enrolled in school full-time or
have stable employment.
Level
3:
Supportive
Apartments Program
Through this program,
currently available only at the
Los Angeles campus, youth
begin to live independently in
off-site CHC apartments.
Although the residents have
greater autonom y and
responsibility, CHC still
provides a safety net,
guidance and support.
Challenge:
CHC’s most revered attribute
is its commitment to provide
hope and opportunity to young
people who have become
accustomed to living day to
day, hungry and homeless.
However, hope costs. With
more than 80 percent of its
funding coming from private
donations, CHC struggles to
keep its doors open.
CHC’s Oakland location is all
too familiar with the challenge
of providing a wide range of
services in a climate of
diminishing financial support.
Nevertheless, CHC still
manages to transform
adversity into success for
thousands of homeless young
people, graduating them with a
renewed hope for the bright
futures they deserve.
So, in the midst of graduation
season, we should take the
time to recognize and
commend Covenant House
California for their caring
efforts while we reflect on the
futures of all our youth, whose
fates are sometimes separated
merely by an accident of birth.
About the Author: Colin T.
Bowen is a criminal defense
attorney at the Law Offices of
Colin T. Bowen in Emeryville.
Contact Information:
Covenant House California – Bay
Area program
200 Harrison St.
Oakland, CA 94607
Tel: (510) 379-1010
www.covenanthousecalifornia.org
Want to Help?
Contact Jill Battalen, Associate Development Officer (Oakland) at
(510) 379-1010
Page 16
WHY IT’S TIME EMPLOYERS REVISIT THEIR CELL PHONE
REIMBURSEMENT POLICY
attorneys’ fees and
incurred to recover
related expenses.
costs
work-
The plaintiffs in Cochran
claimed that while they didn’t
incur an extra charge on their
personal cell phone bill when
they used their phones for
work -related purposes,
reimbursement for some part
of their personal cost was still
required. The court agreed
and determined employers
must reimburse employees
“some reasonable percentage
of the employee’s cell phone
bill.”
What happens when your
employees use their personal
smartphones to check or
respond to work email? It may
be a question that you hadn’t
given much thought to.
Presumably, if an employee
makes a work-related call,
email or text, an expense report
is submitted and the employee
is reimbursed. But what if the
call, email or text is covered
within the employee’s phone
plan and, consequently, there is
no separate charge to the
employee?
That question was recently
addressed by a California Court
of Appeal, which held that
employers must reimburse the
employee the reasonable cost
of that call, email or text, even if
no separate or additional
charge is imposed on the
employee.
Otherwise, the
court explained, “the employer
would be passing its operating
expenses to the employee.”
Cochran v. Schwan’s Home
Service, Inc. 2014 DJDAR
10735 (August 12, 2014).
The source of an employer’s
obligation to reim burse
employees for work-related
expenses is California Labor
Code Section 2802(a). This
statute requires employers to
indemnify employees for “all
nec ess ar y ex penditures ”
incurred by the employee in
“direct consequence of the
discharge of his or her duties.”
If employers fail to comply with
this obligation, employees are
entitled to recover accruing
interest, plus reasonable
But what does this mean? The
court in Cochran gives little
guidance to how employers
are supposed to determine
what portion of the employee’s
cell phone bill should be paid.
In fact, the court could provide
no hard and fast rule, and,
instead, stated that the
calculation of the amount of
TRIAL PRACTICE SECTION NEWSLETTER
the reimbursement must be left
to “the parties in each
particular case.” Not a very
comforting directive.
What should employers do?
T he m os t c ons er va ti ve
approach would be to provide
employees with companyo wne d s m art ph on es to
conduct business and workrelated communications or,
alternatively, simply pay an
employee’s entire personal cell
phone bill each month.
However, that might not be
palatable for many employers.
A more precise but timeconsuming alternative would
require employees to submit
their entire monthly phone bill
with documentation of the
proportion of the calls made for
work-related matters. In that
scenario, the employer would
determine the proration of the
work‑related calls to the total
calls and reimburse the
employee for a pro rata
percentage of the entire cell
phone bill.
This procedure
would have to be repeated
each month.
Another approach is for the
em pl o ye r t o a gr e e to
reimburse employees at a flat
rate each month, and the
employee in turn agrees that
(1) the amount is a reasonable
estimate of the proportionate
charges, including taxes and
fees, that are allocable to
business calls and (2) if the
employee incurs business
charges in any month in
excess of the estimated
amount, the employee will
Page 17
submit the entire phone bill,
identifying business calls and
the employer will reimburse all
business charges, including
the proportion of taxes and
fees attributable to the
business calls. If the employee
routinely submits phone bills
with larger work-related
charges, the employer will
want to increase the flat rate
amount.
compatible with the court’s
interpretation of Labor Code
Section 2802. One size will not
fit all and there are a variety of
options available that might
work better for particular
employers. Certainly, the worst
option is to have no policy and
provide no guidance to
employees regarding the use
of personal smartphones to
communicate on work‑related
matters. At a minimum,
employers need to review their
cell phone and reimbursement
policies now to ensure they
comply with the Cochran
decision and avoid unwanted
liability to employees.
Employers might also create
policies that limit personal cell
phone access for work-related
matters to management
employees only to reduce the
scope of reimbursements. Of
course, employers would still
be required to reimburse
employees should they fail to
strictly follow such a policy.
- David Goldman
What is clear from the Cochran
decision is that employers
need to revisit their expense
reimbursement policies to
ensure that they are
INVITATION FOR
COMMENTS & ARTICLES:
If you would like to see any particular information in the
Newsletter, or if you have an article you would like to
submit for publication, please email Michael Shklovsky
at [email protected].
We welcome your ideas and look forward to your
submissions!
Page 18
EXPERT WITNESSES 101: BEST PRACTICES FOR
PRESENTING (AND OPPOSING) EXPERT
TESTIMONY
December 2, 2014 from 6:00 p.m. to 7:30 p.m.
***Registration 5:30 p.m.—6:00 p.m.***
Conference Center at Wendel Rosen Black & Dean LLP
1111 Broadway, Oakland CA
Expert testimony can make or break your case. This program will provide varied
perspectives on how to best handle expert witnesses. Covering both basic and more
advanced issues, the program will focus on the following five subjects:

Expert Selection. Picking the right expert (and avoiding the wrong one).

Pre-Trial Disclosure and Discovery. Strategic and tactical considerations.

In Limine Motions. Excluding or limiting expert testimony.

Presenting Expert Testimony at Trial. Best practices for effective presentation of
expert testimony and opinions.

Expert Cross-Examination. Achieving maximum effect on cross-exam.
To register, and for more information, please visit www.acbanet/calendar or contact Membership and
Education Coordinator Hadassah Hayashi at [email protected] or (510) 302-2200.
SPEAKERS:
Judge Kimberly Colwell, (Dept. 18), Superior Court of California, Alameda County
Judge Colwell was appointed to the bench in 2012, and is the Civil Direct Calendar Judge for one the
busiest civil departments in Alameda County, managing a caseload of approximately 485 cases. Judge
Colwell was formerly head of litigation for Meyers Nave, and has 25 years of trial work in state and
federal courts in California.
Judge George Hernandez Jr. (Dept. 17), Superior Court of California, Alameda County
Judge Hernandez serves in the Complex Litigation Department of the Superior Court of California,
County of Alameda. Judge Hernandez was appointed by Governor George Deukmejian in 1989. Prior to
becoming a judge he served as an Alameda County Commissioner, private practitioner, and Instructor of
Political Science, Business Law.
Judge Ioana Petrou (Dept. 15), Superior Court of California, Alameda County
Judge Petrou currently presides over a Civil Direct Calendar, having previously had criminal and family
law assignments. Prior to being appointed to the bench in 2010, she was an Assistant US Attorney in the
Criminal Divisions of the Northern District of California.
Robert Charles Ward, Shartsis Friese LLP
Mr. Ward is a litigation partner with substantial arbitration and trial experience who relies on that
experience to deliver practical advice and cost-effective lawyering. His litigation practice is largely
oriented toward the real estate and investment management industries.
Moderator: Carl D. Ciochon, Wendel Rosen Black & Dean LLP
TRIAL PRACTICE SECTION NEWSLETTER
Page 19
1000 Broadway
Suite 480
Oakland, CA 94607
Phone: 510-302-ACBA (2222)
Web: www.acbanet.org
Page 20
TRIAL PRACTICE SECTION NEWSLETTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
JUDICIAL ASSIGNMENTS – CIVIL
UD/Small Claims/Collections/
Settlements