Robert Hickey, Robert Lafer, Sophia Roach, Chantal DeMauregne, Evan Kirvin, David F. Williams III, & James Simmons

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1 San Diego Deputy District Attorneys Association President: Vice Presidents: Treasurer: Secretary: Directors: August - September 2008 Edition: David Hendren Steve Walter & Patrick Espinoza Cari Phillips James Koerber Robert Hickey, Robert Lafer, Sophia Roach, Chantal DeMauregne, Evan Kirvin, David F. Williams III, & James Simmons PRESIDENT S MESSAGE By David Hendren DDAA Awards Banquet Saturday, September 27, 2008: Recently, your Association Board met to vote on recipients of this year's awards. There were a large number of well qualified nominees. I want to thank all of you who went out of your way to put together thorough and well informed nominations of your peers. Each year it is a difficult task to narrow down the nominees to the eventual winners. That having been said, I'd like to congratulate the following award winners: The Edwin L. Miller Jr. Lifetime Achievement Award for an outstanding prosecutor who exemplifies excellence, professionalism, ethics, respect, knowledge, teamwork, communication and accomplishment throughout his career is awarded to former Chief Deputy District Attorney Carlos Armour.. The Charles Nickel Award for outstanding excellence in contributions on a statewide level in the area of public policy, legislation or education is awarded to Deputy District Attorney Catherine Stephenson. The District Attorney Investigator of the Year for a District Attorney Investigator who has demonstrated excellence in criminal investigation and a commitment to law enforcement in a specific case during the last year or over an entire career is Darrell 1

2 Brown. We encourage all District Attorney investigators to come and celebrate this award for Darrell. The Law Enforcement Officer of the Year for an officer whose efforts have had a significant impact on public safety is awarded to San Diego Police Department Detective John Tefft. We, of course, will announce the Prosecutor of the Year, those receiving Outstanding Achievement Awards, or the Child Support Enforcement Attorney of the Year at the Awards Banquet. Please join us on Saturday, September 27, RSVP to Janice Sumrow ( or Janice.Sumrow@sdcda.org) by September 17, (A copy of the invitation is at the end of the newsletter, if you have not already received one.) DDAA Election: Nominations for the 2008 DDAA Election closed on September 1, David Hendren ran unopposed for President. The election for the remaining open seats will be held from September 15-20, We are going to once again use the services of an Internet voting website, as was done in the last several elections. The sample ballot and instructions are included later in this newsletter. We wish all the potential candidates Good Luck! 3. Pension Protection Issues: The California Attorney General has joined the fight to protect public employee pensions in Orange County. Please see the article later in this newsletter. 4. Save the Dates! Please mark your calendars now for these upcoming events: Saturday, September 27, 2008: DDAA Annual Awards Banquet Friday, December 5, 2008: DAI / DDAA Holiday Party DEPUTY DISTRICT ATTORNEYS ASSOCIATION BOARD OF DIRECTORS MEETING MINUTES OF 9/2/08 Officers and David Hendren Patrick Espinoza Robert Lafer Directors Evan Kirvin Robert Hickey David F. Williams III Present: James Koerber Sophia Roach James Simmons Chantal DeMauregne 1. Call to Order: President Hendren called the meeting to order at 5:20 p.m. 2. Association Comment: None. 2

3 3. Request for Endorsement for San Diego County Bar Association Board Marcella McLaughlin: DDA Marcella McLaughlin previously requested an endorsement for the San Diego County Bar Association Board of Directors. The election will be held in October. Matter discussed in Executive Session. 4. Request for Endorsement for San Diego County Bar Association Board Udoka Nwanna: Request withdrawn. 5. San Pasqual Academy Fundraiser: DDA Roach asked the Board to become a sponsor of the San Pasqual Academy Fundraiser, an annual event hosted by DDA Kelly Rand. The event this year will be held on Saturday, October 25, All DDAs are encouraged to attend. The Board voted to contribute $500. (Motion: Lafer; Second: Simmons. Vote: Unanimous.) 6. Political Race Endorsement Requests: Vice President Espinoza updated the Board on the political race endorsement interviews recently conducted by San Diegans Against Crime. Endorsement requests were made by candidates in San Diego City Council Districts 3 and 7, as well as the Carlsbad City Council. Matter discussed in Executive Session DAI/DDAA Holiday Party Friday, December 5, 2008: Director DeMauregne updated the Board on the Holiday Partly. DAI Band 5 South will once again provide music for the event. 8. Lateral Hiring Issues: The Board discussed the issue of lateral DDA hires. The loss of experienced prosecutors to retirement and other opportunities was noted. The impact on morale of lateral replacements was discussed. Workload issues and over-assignment of cases was noted. The DDAA is seeking the input of DDAs on this issue. Matter to be discussed further at the October Board meeting. 9. Request for DDAA Endorsement for Judicial Application Deputy District Attorney Robert Hickey: The Board voted to endorse the Judicial Application of DDA Hickey. Letter to be sent to the Governor. 10. DDAA Election: The Board reviewed the ballot for the 2008 DDAA Election. 11. Crime Victims Fund: The Board voted to send three representatives to the Crime Victims Fund event on Saturday, September 6, (Motion: DeMauregne; Second: Kirvin. Vote: Unanimous.) 12. Salary Committee Update: Matter discussed in Executive Session 13. Request to Oppose Proposition 5: Proposition 5 would weaken drug laws currently on the books. The Board voted to oppose Proposition 5 on the November 2008 ballot. 14. Treasurer s Report: 3

4 Primary Savings: Money Market: Litigation Money Market: Certificate: Checking: 15. President s Report: None. 16. Old Business: None. 17. New Business: The Board voted by in July to send flowers to defense attorney Roland Haddad for the passing of his son, Armon. The Board voted by to send flowers to DDA Jill Schall for the passing of her father. The Board voted by to send flowers to DDA Melissa Vasel for the passing of her father. The Board voted by e- mail to send flowers to DAI Maria Silveira due to her recent injury. The Board voted to reimburse Secretary Koerber for costs associated with the September meeting. 18. DDAA Awards: Matter discussed in Executive Session. 19. Adjournment: 7:05 p.m. Respectfully Submitted, Jim Koerber, Secretary TUESDAY, SEPTEMBER 02, :56:00 PM Brown joins fight over Orange County deputies' pensions BY SCOTT SABATINI SANTA ANA, Calif. (Legal Newsline)-Attorney General Jerry Brown will seek permission from a judge to file a legal brief that would protect an Orange County deputy sheriffs' pension plan from attempts to alter it by the Orange County Board of Supervisors. Brown's office said Tuesday the attorney general will file an amicus brief in opposition to the Board of Supervisors' lawsuit against the California Public Employees Retirement System that challenges a 2001 collective bargaining agreement with the Association of Orange County Deputy Sheriffs. "The deputy sheriffs put their lives on the line for us, and they deserve fair compensation for their hard work serving and protecting the people of Orange County," said Brown, a Democrat. 4

5 Under the current bargaining agreement, the deputies receive a pension plan known as "3 percent at 50." Since its inception, the plan has been adopted by most public safety departments in the state. "The county's lawsuit," Brown said, "poses a significant threat to all public employees in California, including local police and other law enforcement officers If the county's lawsuit is successful it will discourage young men and women from choosing a career in law enforcement and will hurt the families who relied on the promises of the Orange County Board of Supervisors." The Board of Supervisors brought the lawsuit in the hopes of invalidating the agreement on the basis that the programmed increases violates the state constitution because it includes a retroactive benefit, according to Supervisor John Moorlach, who issued a written report on the lawsuit in July "As an example," Moorlach's report states, "a 50-year-old sheriff, who on June 2, 2002, had worked for 25 years, had earned 50 percent of his or her final year's compensation as an annual pension. On June 28, 2002, that same deputy was given an additional 1 percent per year for the past 25 years, and now had a 75 percent of the final year's compensation as an annual pension, one-third of which was given to them without working for it or paying for it." According to Moorlach, the change in compensation could lead between $100 and $300 million unfunded in the pension. "Retroactive benefits," Moorlach argued, "are not earned by working-they were 'given' to the employees-and thus they were never vested. If they are not vested, they are not constitutionally guaranteed." But Wayne Quint, president of the deputy association, said the case could jeopardize the benefits of thousands of state and local public employees if all retroactive benefits are found to be unconstitutional. The association has hired private legal counsel. The costs of the case could exceed $1.3 million, Quint said. Brown said the lawsuit breaks a promise between the Supervisors and their deputies. "County supervisors are not entitled to suddenly change their minds and decide to take away important pension benefits that the deputies bargained for in good faith," Brown said. He added that the deputies "deserve far better treatment from the Board of Supervisors. Their families are counting on it." Orange County made national news when the affluent Southern California jurisdiction filed for bankruptcy in

6 Instructions on How to Vote in 2008 DDAA Officers Election 1. Voting will occur from Monday, September 15 to Saturday, September 20, Only ACTIVE MEMBERS of the DDAA may vote. (See current Bylaws for eligibility requirements.) 3. Log onto the website: 4. Enter your user name and password: 1. User name: LAST NAME 2. Password: Employee ID Number (No zeros BEFORE number) 3. Problems: Contact DDAA Secretary Jim Koerber 5. You must vote for a candidate in each race. You must vote in uncontested races. 6. The results will be announced after the election closes. SAMPLE BALLOT Please vote for one candidate for President. You must vote for all open seats, including uncontested races. Instructions: Your vote is required. David Hendren (DDA V) Please vote for one candidate for Vice President. You must vote for all open seats, including uncontested races. Instructions: Your vote is required. Pat Espinoza (DDA IV) Steve Walter ( DDA IV) Please vote for one candidate for Treasurer. You must vote for all open seats, including uncontested races. Instructions: Your vote is required. Matt Greco (DDA IV) Cari Phillips (DDA III) Please vote for one candidate for Secretary. You must vote for all open seats, including uncontested races. Instructions: Your vote is required. Matthew Dix (DDA II) Jim Koerber (DDA V) 6

7 Please vote for one candidate for the At Large seat. You must vote for all open seats, including uncontested races. Instructions: Your vote is required. Jill DiCarlo (DDA IV) Bryn Kirvin (DDA III) Chris Lindberg (DDA III) Wendy Mazzarella (DDA III) GUIDELINES FOR EFFECTIVE AND PROFESSIONAL ADVOCACY These guidelines will help attorneys perform at the highest levels of effective and professional advocacy. The guidelines illustrate generally accepted best practices under the SDCBA Attorney Code of Conduct. Citations are to related Code of Conduct sections. Like the Code of Conduct, this document was written with direct input from judges in the state and federal courts in San Diego. As these guidelines illustrate, attorneys should always be civil. Courtesy and respect to the court is always required, but that is not enough. Civility should extend to everyone in the courtroom, including courtroom attachés, opposing counsel, parties, and witnesses. Vigorous advocacy and civility are not inconsistent. Civility enhances advocacy, while incivility impairs persuasiveness and alienates judges and juries. Judges in San Diego County expect attorneys appearing in any courtroom to consistently demonstrate civility, integrity and professionalism. Such judges also expect attorneys whether in the courtroom or outside the courtroom to conform to the same high level of civility, integrity and professionalism SERVING THE CAUSE OF JUSTICE Do Not Assert Meritless Claims. Do not permit yourself to be used as a foil for advancing frivolous arguments, defenses or causes of action. When arguing for an extension of existing law, make very clear this is what you are doing, and explain why. ( II-G.) Honor Your Commitments. Your word is your bond. There may be rare situations where you have to seek relief from an improvident stipulation, or other commitment. Do not confuse this 7

8 with rewriting history or reneging on a commitment. ( I-A, I-B.) Do Not Allow Your Client s Feelings to Override Professional Duties. Client s emotions are often high during litigation, often justly so. But do not let that interfere with your duties as an officer of the court. Zealous advocacy does not require, permit, or justify disregarding the duties of an attorney. There is no justification for stooping to uncivil behavior. ( III-C.) Control Your Emotions and Curb Your Anger. Litigation often raises emotions; do not let yours show unless you want them to show (which is sometimes appropriate). Do not allow anger to impair your effectiveness. Vigorous advocacy is consistent with professionalism, but incivility is not; resorting to win-at-any-cost tactics is inconsistent with professionalism, and related misconduct may warrant sanctions against offending lawyers and their clients. ( III-A.) Be Sparing with Requests for Sanctions. Automatic sanctions requests may be counterproductive. ( II-F, III-M.) Do Not Seek Disqualification of Opposing Counsel for an Improper Purpose. Carefully weigh a decision to move to disqualify opposing counsel, especially if the motivation is primarily designed to obtain a tactical advantage or create a diversion from litigating the merits. Do not make or threaten such a motion unless you have carefully considered it and are satisfied that it is both warranted and in your client s best interests. ( III-M.) The Fair Play Test; Avoid Getting Too Close to the Edge. Your duties of loyalty, competence and diligence require pressing for proper advantages, but be aware that your view of your conduct as being close to the line may be viewed as across the line by others. In analyzing ethical dilemmas, do not simply ask yourself if it violates any law; also ask yourself if it is fair and if it is the right thing to do. ( I-F, III-F.) CONDUCT IN THE COURTROOM Be Candid. Be scrupulously honest and forthcoming with the court. If you use the technique of inviting the court to interrupt you and ask for authority for anything you say, be prepared to deliver instantly. If you cannot respond immediately to a question from the court, ask for a moment to formulate a proper response, or, if circumstances warrant, ask for time to file a short written response. ( I-F, II-B.) Disclose Relevant Authorities. Cite any controlling legal authority. If it is contrary to your position you may distinguish or argue why it is wrong, if appropriate. Do not conceal authority that is contrary to your position. ( I-C, II-B.) Be Prepared, and Demonstrate Preparation. Be able to put your hands on cases, record citations, documents, etc., without fumbling. Have the table in front of you neatly arranged so that it says to any observer, This lawyer is prepared. Anticipate questions to ensure you will be able to give a considered response; off-the-cuff remarks are seldom effective. Know the court s rules, and be able to show you have followed them. ( II-E.) 8

9 Be On Time. As officers of the court, lawyers must not be late for any court appearance. It is good practice to allow plenty of time to get there early. Doing so not only ensures compliance with the obligation of punctuality, it also has other benefits (e.g., in certain circumstances it will enable lawyers to get their matters heard before other matters, and lawyers often can learn something useful from others in the courtroom before their matters are called). Any lawyer who cannot avoid being tardy should notify the court clerk in advance. ( II-D.) Stand Up. Lawyers should always stand when addressing the court. In the rarest of cases and for good cause (e.g., physical disability), a lawyer can request the court s permission to speak from a seated position. ( II-A.) Dress Appropriately. The courtroom is not a place for unorthodox or casual attire. You and your clients should appear in court dressed neatly and appropriately. ( II-C.) State Your Appearance. Formally state your appearance your name and the party you represent. (You may want to include your firm name, but this is optional.) Make sure you know exactly who you are appearing for (without having to fumble with the caption). For example, Good morning, Your Honor. Jones & Roe by Sally Smith, appearing for defendant ABC Company, the moving party. ( I-D.) Adhere to Time Constraints. Recognize that the court has limited time to hear your matter. Be prepared to respond to a request for a time estimate and be prepared to live with it. Make a good faith estimate. Be considerate of the court. Do not be greedy ( I want an hour ) but do not shortchange yourself. Once guidelines are given ( You have five minutes, counsel ) make sure you comply. (There is a trend of imposing time limits for trials as well as law and motion hearings). ( I-A, I-D, II-B, II-E.) Use a Traditional Introductory Remark. It is generally a good idea to begin every argument in the same way, for example, May it please the court, counsel,. ( II-A.) Do Not Tread in Forbidden Space. Many courts prohibit counsel from entering the well (the area between counsel table and the bench), approaching a witness during examination, or even leaving the lectern. Be sensitive to the different requirements of each court, and adhere strictly unless the court gives you permission. Even if the court grants permission to tread in forbidden spaces, you demonstrate competence by being aware that they exist. Before a court appearance, it is wise to ask the court clerk which areas of the courtroom, if any, are off limits without the court s permission. ( II-A.) Address the Court, Not Your Opponent. Address all remarks to the court (even those intended for your opponent). In rare circumstances where it is appropriate to address your opponent, be sure to obtain the court s advance permission to do so. However, in most cases the remark can, at least in form, be addressed to the court. ( II-A, III-L.) Properly Address the Court. It is usually safe to refer to the Court. For example, If the Court feels... or In light of the Court s ruling.... Your Honor should only be used as a form of 9

10 address, not as a personal pronoun or a possessive. For example, do not say, In light of Your Honor s ruling... or Does Her Honor want to hear further argument on this point? Never address the court as Judge in court; this form of address should be restricted to social occasions. Never address the court as you or refer to your ruling. ( I-E, II-A.) Be Respectful in Questioning the Court. Address questions to the court in an appropriate manner and tone. If you want the court to look at something in the papers, proper form requires that you invite the court s attention rather than directing the court s attention. ( II-A.) Argue to the Court, Not With the Court. Take the maxim Attack the argument, not the speaker one step further. Point out the defects in the other party s position or arguments, not the failings in the court s tentative opinion. ( I-D, II-A.) Do not Interrupt. Unless an appropriate objection is required, never interrupt the court, or opposing counsel, or a witness. Be particularly sensitive to the court's need to clearly articulate rulings and supportive reasoning by not interrupting the court. ( II-A, III-K.) Accept Responsibility for Papers. Do not try and dodge responsibility for a defect in the papers by pointing at another person in the firm. If the court seems inclined to rule against you based on a defect in the papers, consider asking for a continuance so the papers can be put in proper order (apologizing to the court and counsel for any imposition), or, at a minimum, seek to have an adverse ruling entered without prejudice. ( I-D, II-B.) Respond Directly to the Court s Question. Welcome questions, even if they appear unfavorable to your position. (If you have prepared well, you will have anticipated all of the hard questions, and will have honed your responses.) Do not put off the question (e.g., I am going to get to that a little bit later, Your Honor... or, The answer to that question really has no bearing on resolution of this motion... ). ( II-A, II-B.) Stop Arguing After the Court s Ruling. Do not persist in arguing a point after the court has ruled on the point. Once the court has ruled, it is considered discourteous to continue to argue. ( I- D, II-A.) Listen and Learn. It is difficult for the lawyer when there is no tentative ruling and no hint as to what the ruling might be. Even without a tentative ruling, once the court asks a question (or says anything), listen intently you can often get a hint as to what the court views as the key issues. Pay close attention and adapt your argument. Be flexible. Do not get so wrapped up in what you are about to say that you miss what is being said in the courtroom (by the court, by opposing counsel, by a witness, or by a juror). ( II-A.) Be Careful in Seeking Clarification of a Ruling. Sometimes you may feel you need clarification of the terms of a ruling. In such a case, do not abuse court s willingness to respond by attempting to reargue merits or improperly forcing court to commit to something that is not part of the ruling or essential to court s order. ( I-D, II-A, II-B.) Anticipate Bench Rulings and Possible Further Requests. Be prepared for a ruling from the 10

11 bench (favorable or unfavorable) and plan your course of action in advance (e.g., you may need to promptly ask for further relief, such as a stay, or, seek a certification of an issue for an interlocutory appeal). ( II-F.) Seize the Opportunity to Make a Record If It s Important. Especially if you lose, you must be careful to make a record (unless there is little possibility that review will be sought). For example, it is your responsibility to ensure that oral or written objections have been ruled on. Consider requesting rulings on objections (tactics change, depending upon how you did at the hearing). If appropriate, consider Are my client s written objections to be considered as having been overruled? ( II-F.) Do Not Make a Record If It s Unimportant Little if anything is accomplished by insisting on making a record on trivial points or those clearly within the court s discretion and which rarely will serve as a basis for appeal. On the other hand, where important, you may request permission to make an offer of proof. ( II-F.) Consider in Advance When and How to Obtain a Formal Order. Be sure you understand whether a formal order is required or if a minute order is sufficient. Understand who is to draft any order, when to submit it, and the approval procedure. In some cases, it is appropriate to have drafted an order in advance so it can be presented at the hearing. Consider asking that an adverse ruling be without prejudice (e.g., if not on the merits, or, on limited record). If you draft an order, be careful; it will damage your credibility and impair your effectiveness if you overreach in preparing an order. ( I-C.) Avoid Visual Displays of Pique. Avoid frowns, gestures or body language that could be construed as disapproval of the court or its rulings. (Some lawyers may be unaware they are manifesting displeasure; learn to control what messages are communicated by your facial expressions and body language.) Respond respectfully even when a ruling goes against you (e.g., Very well, Your Honor ) and move on to the next order of business. ( I-D, II-A.) Offer Gracious Concluding Remarks. Even if the court has ruled against you, conclude the hearing with a genuine Thank you, Your Honor. You aren t thanking the court for its ruling; you are thanking the court for its attention, for the opportunity to present oral argument (which is usually in the discretion of the court), or, at a minimum, for giving consideration to your papers. ( I-D, II-A.) Do Not Disparage the Judge or Jury. When you receive an unfavorable result, do not blame or otherwise attack the court or jury in discussing the case with anyone. ( I-B, I-D.) Shepardize and/or KeyCite Your Cases. Courts distrust lawyers who cite cases that are no longer good law. Such lawyers appear to be sloppy if not disingenuous, and they are likely to acquire a reputation for being unreliable and unprofessional. Few things get you off on the wrong foot with a judge faster than citing an overruled case. ( II-B, II-E.) Avoid Ex Parte Communication With the Court. Do not initiate ex parte communications with the court except as expressly authorized by court rules. Be particularly sensitive to not raising 11

12 any pending matter with a judge in a social setting (or, for that matter, one that may come before the trial or appellate court). ( II-H.) Letters to the Court. Avoid sending letters to the court except where specifically authorized by the court. Only in rare cases are letters to the court appropriate; sending a copy to opposing counsel, while essential, does not necessarily vitiate the impropriety of such communications. Consider bringing procedural matters to the clerk s attention. In the rare instance of writing a letter to the court, there is a big difference between communicating an undisputed event (e.g., a later relevant decision bearing on a pending motion) as opposed to urging contested facts or making additional legal arguments. If your opponent writes an inappropriate letter, a prompt, polite response from you is appropriate. ( II-H.) CONDUCT TOWARD OPPOSING COUNSEL, PARTIES AND WITNESSES Do Not Personally Attack Opposing Counsel. Demonstrating unpleasant feelings toward opposing counsel by disparaging remarks or gestures will usually damage you in the court s eyes and will usually invite (or escalate) a counter-attack. At a minimum, engaging in personal attacks will distract the court/jury from the points you need to make. If your opponent attacks you, meet your opponent s unreasonable conduct with dignity and reason. ( II-I, III-A, III-C.) Meet and Confer in Good Faith. Statutes and court rules often require that lawyers attempt to resolve, by agreement, discovery and other procedural disputes and objections. Do not merely go through the motions; try in good faith to resolve such disputes. Make the effort to avoid involving the court, rather than attempting to position yourself with an eye toward involving the court. Make sure it is necessary and important before seeking a ruling from the court to resolve a discovery dispute. ( II-F.) Do Not Personally Attack a Party or Witness. In general, treat every witness with respect. Impeachment may be warranted and appropriate under some circumstances, but avoid personal attacks on parties or witnesses. ( III-B.) Use Confirming Letters Judiciously. Sometimes it is desirable and even necessary to embody an agreement, disagreement, or action in writing. But do not automatically do so. When and if you feel it necessary to send such a letter, be scrupulously accurate. Do not overreach. ( III- H, III-I.) Discuss Proposed Stipulations in Advance. It is generally inappropriate to propose a stipulation for the first time in front of court or jury, especially on a controversial matter. Discuss proposed stipulations with opposing counsel in advance and agree upon the terms. If you can t agree, that is the end of it there will be no stipulation (unless the court has ordered you to reach an agreement). ( III-J.) Avoid Hostility in Discovery. A good rule of thumb is to conduct discovery as if a judicial officer were present. Do not use discovery as a tactic to harass or inundate your opposing party or counsel. Opponents rarely go away as a result of this tactic, and boomerang discovery requests are foreseeable. Unreasonably obstructive tactics and uncivil behavior during 12

13 depositions to gain unfair tactical or strategic advantages is professional misconduct warranting sanctions. Conducting yourself professionally will save your client money and often yield better discovery responses. ( II-G, III-D, III-E.) Consider Reasonable Requests for Accommodation. Do not refuse reasonable requests for accommodation simply to play hardball where your client s rights are not prejudiced. Doing so will get you off on the wrong foot with your opposing counsel and with the court. (On the other hand, you need not succumb to requests made by opposing counsel, premised on professional courtesy if the request will jeopardize your client s rights). ( III-G.) The Handshake Test. Your goal in every case should be to conduct yourself professionally at all times and to inspire and encourage opposing counsel to do likewise so you can conclude the matter with a handshake. ( III-O.) 13

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