When clients come to you to set up a joint venture, they’re often excited and focused on the big picture. You need to be the details person, and maybe a bit of a wet blanket.

Take one company that needs more resources to successfully exploit its intellectual property, add another company that has the needed resources of capital, technology, management etc., but not the great idea, and, if you’re lucky, a new legal entity is born: a joint venture!

When clients come to you with a proposed joint venture, you’ve got to be ready to discuss the key issues involved in exploring and structuring this new entity. Here are 15 critical issues to discuss with your potential joint venturers:

1. Purpose and anticipated term of the venture;
2. Respective roles and allocation of responsibilities of the parties;
3. Governance, decision-making, and resolution of deadlock;
4. The parties’ initial and ongoing contributions to the venture (in cash, tangible property, staffing, management, advertising credits, intellectual property, or other forms);
5. The manner of contribution of intellectual property rights, i.e., an outright grant or assignment, or a license;
6. Allocation of expenses and revenues from the venture between the parties;
7. Antitrust issues, particularly when the prospective principals are major existing or potential competitors;
8. Bankruptcy—addressing what happens if a principal files a bankruptcy case;
9. A software or other technology escrow to protect one party against the failure of the other to perform or to continue to maintain key items of software owned by the first party and licensed to the joint venture;
10. Allocation of ownership of intellectual property created in the venture;
11. Potential liabilities of the parties, contractual limitations on liability, indemnification;
12. Exit strategy, ideally tied to a clear definition of success and failure of the venture based on milestones and measurable metrics;
13. Eventual distribution of intellectual property rights and other assets on termination of the venture;
14. Tax considerations, especially if the transaction is cross-border or if a new entity is being formed; and
15. Export restrictions on any applicable software, encryption, or other technology.

For an in-depth look at each of these issues, along with discussion of  joint ventures and strategic alliances generally, check out CEB’s Intellectual Property in Business Transactions, chap 6. CEB also has a program on IP Issues in Negotiating Deals & Structuring Transactions, available On Demand.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

There’s a wide range of tenant organizations, each with differing goals and legal needs. Generally, tenant organizations fall into two main groups:

1. Ad hoc and short-lived tenant organizations. An example of this type of organization is a handful of tenants in the same building with a landlord who won’t provide enough heat, or a larger group of tenants fighting a rent increase with a rent strike and fearing mass eviction. Although the size and complexity of the problems facing these tenant groups may vary, their primary objectives are short-term, i.e., to resolve the immediate problem in their favor, and then disband and resume their normal lives. Class action lawsuits have become a fairly common tool to achieve these tenant objectives.
2. Broader, more permanent tenant organizations. Some groups want to form a tenant union to deal with the landlord on behalf of all its members and to negotiate a collective bargaining agreement that establishes binding procedures for resolving disputes with the landlord. Other groups consist of tenants from several different buildings who have joined together to deal with neighborhood or citywide problems such as high rents or deteriorating housing.

The attorney’s role varies based on the type of tenant organization involved. For example, if the group has only short-term goals, the attorney’s responsibilities won’t vary significantly from the traditional attorney’s role in representing an individual client: to handle litigation, negotiate with the landlord or the landlord’s attorney, and try to resolve the underlying dispute in the tenants’ favor while protecting the tenancies.

If the group has long-term goals, the attorney should think more carefully about an appropriate role. For example:

• If the group’s objectives may be achieved more quickly or easily through political solutions (such as rent control) than legal ones, litigation might help publicize and dramatize issues, even though it might not directly achieve the group’s goals.
• If the group isn’t well established and needs to develop respected tenant leaders, the attorney probably should advise the leaders privately and present a low profile at group meetings and negotiations. Playing a traditional attorney’s role can sometimes do more harm than good to a budding tenant organization.

Many groups come to an attorney without giving sufficient thought to the type of tenant organization that the group wants to be or to the full range of goals that it wants to achieve. It’s important that you urge such tenants to convey their thoughts and decisions on these questions so you can devise a strategy that will serve the group’s interests.

Many of the issues involved with counseling tenants, including those relating to tenant organizations, are covered in CEB’s California Landlord-Tenant Practice, chap 5.

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1. Be Prepared. Judges appreciate lawyers and litigants who are prepared, because the proceedings tend to flow smoothly and fit within time estimates. Any attorney who has gone into a hearing or a trial with everything in place knows the feeling of confidence this inspires and what assets self-confidence and the feeling of control can be in the courtroom. By contrast, the unprepared attorney who tries both to prepare and to present the case during the proceedings wastes time and effort, loses focus, blurs issues, and causes further delays when this approach pushes the hearing or trial beyond the time allotted.
2. Develop an Appropriate Style. Judges appreciate attorneys who seek to minimize the stress level in the courtroom. Most judges prefer, for example, to see witnesses treated with courtesy rather than to see them savaged on the stand. Instead of dispensing pain and suffering, some very successful attorneys use less offensive methods to dismantle witnesses. A lie can be unmasked with humor as well as by tirade. A courteous and calm attorney can often transfer some of these positive feelings to the case as a whole.
3. Maintain a Helpful Attitude. We all know that in dealing with others we achieve more success if we approach them with a helpful attitude. Unfortunately, by the time the average person reaches the courtroom, he or she may have gone through a great deal of stress and frustration. Many people vent their frustrations in the courtroom. This isn’t helpful. What is helpful is to remind yourself to approach the court with a positive and helpful attitude; this is more likely to set the stage for positive results. A helpful attitude toward the opposition can also be beneficial.
4. Know Your Judge. It’s always important to know your audience. In family law, the audience is the judge. If you know in advance who the judge will be, learn his or her preferences. Some judges, for example, appreciate introductory statements. Others, who may have carefully reviewed the moving and responding papers or trial briefs, will probably find an opening statement annoying. If you don’t know the judge’s preference, ask. Attorneys quickly learn judicial preferences by observation, speaking with other lawyers, or, sometimes, by reading profiles available in law libraries.
5. Know Your Opponent. Family law attorneys seem to be either those who work well with other attorneys and adopt the principle of “give a little, take a little” or those who believe in taking no prisoners. It helps to know whether the other side will be playing total hardball before getting deeply into the proceedings. Don’t start off by granting your opponent great latitude on evidentiary matters unless there is a record that your opponent will follow the same approach. You can be civil while insisting on fairness.

Click here for 5 more tips from Judge Mandabach!

The entire article by Judge Mandabach from which this material was excerpted is in CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 2, a must-have resource for any attorney who wants to excel at navigating the world of family law cases, from filing initial pleadings through through hearings or trials. And don’t miss the upcoming CEB 2012 Family Law Conference, Recent Developments in Family Law Practice, and Drafting Family Law Agreements in Costa Mesa on Nov. 16-17.

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Miss Manners may wisely advise us to follow the old adage not to talk about politics or religion, but can California employers prohibit their employees from discussing these and other lightening rod subjects?

Here’s how California law addresses the stifling of employee discussions:

Politics. An employer generally can’t regulate an employee’s political activities (Lab C §§1101-1102), but it can protect business operations or productivity by regulating on-the-job conduct or destructive or provocative political speech. This basically means that employees can talk politics as long as it doesn’t infringe on their own or their co-workers’ work.

Religion. Religious expression in the workplace can present problems for employers, especially when an employee’s religious beliefs about homosexuality conflict with the employer’s need to enforce nondiscrimination policies. Employers have to accommodate an employee’s religious beliefs, but they also have to consider how those beliefs, as expressed, impact other employees and the workplace generally. For example, in Peterson v Hewlett-Packard Co. (9th Cir 2004) 358 F3d 599, 607, the court held that accommodating an employee’s religious beliefs is not required when doing so would make the employer either exclude sexual orientation from its diversity program or permit the employee to post messages intended to demean and harass other employees.

Compensation and working conditions. An employer can’t prohibit employees from discussing compensation issues with co-employees. Lab C §232. As much as some employers may find that it interferes with business decisions related to hiring and promotion, employees are free to disclose the amount of their wages and can’t be prohibited from disclosing information about the employer’s working conditions. Lab C §232.5(a)-(b).

English only. Absent business necessity, the employer cannot require that workplace discussions take place in English. CC §§1798-1798.78; Lab C §1198.5.

Want to know more about workplace privacy laws? Check out CEB’s Privacy Compliance and Litigation in California, chap 8. On accommodating the religious beliefs of employees, see Wrongful Employment Termination Practice, chap 1.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

The Ninth Circuit has repeated what the Supreme Court has already said about plaintiffs suing polluters for climate change: look to the Clean Air Act and the EPA for possible relief, not the federal courts.  Courts simply won’t hear claims that the polluters have created a common law nuisance when federal law covers the area. 

In American Electric Power Company, the Supreme Court held that courts cannot issue injunctions against polluters to make them reduce or stop greenhouse gas emissions.  In Native Village of Kivalina v ExxonMobil Corp. (.pdf), the Ninth Circuit added that polluters also can’t be held liable for monetary damages.

The Ninth Circuit case was brought by the village of Kivalina, Alaska, against numerous oil and energy companies on behalf of its residents.  Kivalina residents rely on sea ice protecting the village against severe winter storms, but with globally rising temperatures, less ice is being formed for shorter periods of time.  This has made living in the the village unsafe.  The residents must relocate to safer ground, which will cost millions of dollars.  They claim that the defendants caused the problem through their climate-changing activities and should thus pay for the relocation.

The Ninth Circuit’s decision may have foreclosed suit against individual defendants based on federal common law, but they can, at least in theory, still sue in state court for whatever remedies they may have under state law.  But if they go that route, there may be a problem with causation and thus standing: courts have also made it clear that it is an almost impossible legal hurdle to try to link a few select defendants to climate change, which is caused by a large and uncertain range of greenhouse gas emitters over a lot of time.  As the Ninth Circuit said,

Kivalina…seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.

If they can’t prove causation, plaintiffs will have no standing to sue anyone, whether in state or federal court.

This has also been the outcome in climate change lawsuits brought by the organization Our Children’s Trust, which arranged for lawsuits to be filed across the nation to force state regulators to limit greenhouse gas emissions.  All but one of these lawsuits were dismissed because the plaintiffs couldn’t identify which particular polluters caused the alleged climate change injuries.

In California, energy companies can rest even more assured than before that they are shielded from lawsuits based on their past actions.  But they should still watch out for potential state and federal legislation and regulations on climate changing activities.

Greenhouse gas emission and climate change as they relate to CEQA is discussed in CEB’s Practice Under the California Environmental Quality Act, chaps 13 and 20.  Also check out CEB’s California Land Use Practice, chap 5 on sustainability and climate change regulations.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

As the Pittsburgh Post-Gazette points out,

Any celebration in the workplace can lead to a litany of employment law litigation issues from harassment to discrimination to hostile work environment. Add costumes to the mix and employers have a potential caldron of liability on their hands.

To take the “fear out of the festivities,” employers should consider the following steps:

• Before Halloween, remind employees to use good judgment when selecting costumes. Reminders can be by email, in meetings, newsletters etc.
• Reiterate existing harassment policies. Every employer should have anti-harassment policies and a clear complaint procedure for instances of harassment. 
• Consider crafting a policy specifically about Halloween behavior and dress.
• Enforce harassment and discrimination policies if necessary. Employers should always address harassment complaints promptly.

For information on crafting anti-harassment policies, including sample policy forms, and on handling claims of harassment or discrimination, go to CEB’s Advising California Employers and Employees, chap 15. Also check out CEB’s Drafting Employment Documents for California Employers, chap 9, for anti-harassment and many other forms to include in an employee handbook. Don’t miss CEB’s upcoming program on Essential Employment Law Issues in LA on Nov. 2.

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

In choosing which writ procedure to use, note that some superior courts have an expressed preference. For example, Amador and Imperial Counties rules state that noticed motion procedure should be used “whenever possible,” and Los Angeles and Sacramento Counties ”strongly prefer” noticed motion. Local rules may even set out a wholly unique procedure for handling writ petitions. For example, the Contra Costa Ct R 7(G)(1)(a) requires that, in mandate proceedings, the petitioner appear ex parte to schedule a status conference at which the hearing date and briefing schedule will be set. To make things even trickier, if there are no local rules, the court may have unwritten practices as to how it handles writ proceedings.

The noticed motion procedure is more common, particularly in larger jurisdictions, but there may be times when the alternative writ procedure is preferable.

Here are the advantages of the noticed motion procedure:

• No need for ex parte appearance. At the time the writ petition is filed, a petitioner doesn’t have appear ex parte to obtain issuance of an alternative writ or file any other documentation in support of the petition (e.g., supporting memorandum, declarations).
• Saves the court time. The use of the noticed motion procedure means that the superior court usually spends no time on the writ proceeding until shortly before the noticed hearing on the merits, which can add up to significant savings of time and judicial resources.
• Hearing on merits likely. The court can deny an application for an alternative writ and dismiss the writ petition, but with the noticed motion procedure, the first time the court considers the matter is usually at the hearing on the merits of the petition, thus often ensuring a hearing on the merits.

The advantages of the alternative writ procedure generally relate to timing:

• Immediate relief possible. If the court issues an alternative writ, the respondent may comply (e.g., by setting aside its decision or changing its action) rather than show cause why it should not be compelled to do so, thus cutting the time and expense of proceeding with challenging the decision or action. 
• Early hearing. If the court issues an alternative writ, the writ will set dates for the return and the hearing on the merits of the writ petition, which may be sooner than if the noticed motion procedure were used. Similarly, an alternative writ might set a tight briefing schedule and a hearing date soon after the date for the return. A compressed timetable won’t be feasible or appropriate in many cases, but it can be very helpful when there’s a small record and the petition raises a straightforward legal question.

One major risk to the alternative writ procedure: unlike the noticed motion procedure, in which the petitioner largely controls the timing of the hearing on the merits, the court might deny the application for an alternative writ and dismiss the writ petition (e.g., if the court determines that the petition is procedurally defective or meritless on its face).

For everything you need to know about initiating a superior court writ proceeding, including drafting the writ petition, turn to CEB’s California Civil Writ Practice, chap 5. For step-by-step assistance, check out CEB’s Handling Civil Writs in the Courts of Appeal (Action Guide).

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

A big issue for renewable marriage contracts under California law is whether these types of agreements would be “promotive of divorce,” which is forbidden for California premarital agreements.

A key early case on this is Marriage of Dawley (1976) 17 C3d 342, in which the California Supreme Court noted that agreements are

void only insofar as the terms of the agreement itself promote the dissolution of the marriage. The test of the validity of the contract thus does not turn on the subjective contemplation of the parties — a standard which would make it impossible to rely on any antenuptial agreement — but upon the objective language of the contract itself.

Contract language providing for the end of the marriage after a set period of time might be just the “objective language” that would void the contract.

If the contract went further and described the allocation of property at the end of the marital contract period, it would be even more problematic under California law. Cases have long held that an agreement promotes divorce if it provides for transfer of substantial value only in the event of dissolution. See, e.g., Marriage of Dajani (1988) 204 CA3d 1387, 251 CR 871 (Jordanian dowry agreement that provided payment to wife in event of dissolution); Marriage of Noghrey (1985) 169 CA3d 326, 215 CR 153 (Jewish “kethuba” that provided that wife would receive house and minimum of $500,000 in event of dissolution). 

So, it appears that drafting a renewable marital contract for yourself or your client might be a waste of time. Better to put that time into making a successful marriage—or at least an enforceable premarital agreement.

For everything you need to know about drafting premarital agreements, turn to CEB’s California Marital Settlement and Other Family Law Agreements, chap 17.

Here are a few examples of how catchphrases can be used to your advantage:

• If an expert has used “quick and dirty” to describe his initial opinion, use that phrase over and over again.
• If an executive has described a dangerous condition as of “no concern to Acme,” return to that characterization as often as possible.
• If the prosecution is depending on a felon and proven liar as their chief witness, ask each government agent about the extent of this informer-witness’ misdeeds and then establish the agent’s reliance on the informer, followed by the question: “And [the informer] was an honorable man?” The agents will be forced to admit that the informer was not an honorable man, but must be trusted in this case.

Just as politicians love to seize on a catchphrase used by their opponent, your catchphrase will ideally come from the mouth of an adverse witness.

If a witness excuses error by describing it as “an innocent blunder,” ask that witness, and other hostile witnesses, about every additional error or misjudgment: “Was that an ‘innocent blunder’?” If a government police agent excuses sloppy practices by claiming to have been in a “hurry,” use that word again and again in asking about other careless practices. If a defendant in a criminal case defends some of his actions by claiming that “Charlie forced me,” the prosecutor should ask over and over whether Charlie “forced” the defendant to do other bad acts the witness admits.

But never lapse into sarcasm when using catchphrases on cross-examination. The jury may be put off by heavy-handed questioning and the judge may find the questions argumentative.

Keep your eye on the catchphrase goal: getting the jury to seize on the catchphrase as descriptive of an entire issue.

This is just one of many helpful trial strategies and tactics discussed in CEB’s Effective Direct and Cross-Examination, chap 1.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Some of this information is basic and your clients will be able to provide it easily, but others will require some explanation and discussion on your part. Be prepared to explain what you seek and why, and the pros and cons of their response.

• ___ Name, address, and marital status of each general partner and limited partner
• ___ Name of limited partnership
• ___ Street address of limited partnership’s principal executive office in California and other offices
• ___ Term of limited partnership
• ___ Scope of limited partnership’s business
• ___ Business with affiliated entities
• ___ Financing of partnership’s business
• ___ Partners’ respective ownership interests in limited partnership
• ___ Initial capital contributions
• ___ Additional capital contributions
• ___ Interest on capital contribution
• ___ Return of capital
• ___ Distributions
• ___ Allocations
• ___ Rights and obligations of general and limited partners
• ___ Compensation to partners and affiliates
• ___ Right to reimbursement of expenses incurred in connection with limited partnership’s business
• ___ Liability and indemnification
• ___ Time general partners devote to limited partnership business and right of general partners to engage in competing activities
• ___ Maintenance and accessibility of books and records
• ___ Tax year (IRC §706)
• ___ Method of accounting
• ___ Transfers of partnership interests
• ___ Buy-out rights
• ___ Terms for admitting additional partners
• ___ Removal of general partner
• ___ Events of dissolution
• ___ Amendments to partnership agreement
• ___ Dispute and resolution procedures

This checklist is also an excellent basis for an agenda for the initial client meeting. You may also need this information to complete a Certificate of Limited Partnership (Secretary of State Form LP-1) and other documents on behalf of the limited partnership.

You’ll need a lot of information from your clients when they come to you seeking to form a limited partnership. Without a checklist of the information you need, you’ll inevitably forget to ask for something and have to embarrassingly go back to your clients.

Not yet up to speed on each of these points? CEB’s got your covered with its Advising California Partnerships. Also check out CEB’s program Buy-Sell Agreements for California Businesses, an essential element for most partnerships.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

To get a clear understanding of your client’s data, find out:

• Who creates or generates data;
• What kind of data is created or generated;
• For what purpose the data is created or generated;
• How the data is used; and
• Where the data is stored.

Once you’ve got a handle on the nature of your client’s data, you can create a map of the spots on the network that are likely to hold data relevant to the case and identify the custodians of that data.

Always interview IT personnel, particularly the person whom an organizational client has designated to be deposed on its behalf about data matters “known or reasonably available” to the organization. See CCP §2025.230; Fed R Civ P 30(b)(6). This person should have a thorough understanding of the network and how information is stored across the network.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

California’s summary judgment statute requires that the papers filed in support of a motion for summary judgment or summary adjudication include “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed.” CCP §437c(b)(1). Each material fact stated must have a reference to the supporting evidence. CCP §437c(b)(1); Cal Rules of Ct 3.1350.

The purpose of a separate statement of undisputed facts is to

• Provide the court with a document that plainly and concisely specifies all material facts that are claimed to be undisputed (CCP §437c(b)(1));
• Provide the court with clear reference to evidence supporting each material fact (Cal Rules of Ct 3.1350); and
• Afford due process to opposing parties (State ex rel Harris v PricewaterhouseCoopers LLP (2005) 125 CA4th 1219, 1262 n28, 23 CR3d 529, rev’d on other grounds (2006) 39 C4th 1220, 48 CR3d 144).

The penalty for failing to comply with the separate statement requirements is huge—it could be grounds for denying the motion. CCP §437c(b)(1).

Now that you know how important the separate statement is to the success of your motion, here are some questions to ask yourself as you prepare one:

1. Are specific facts set out showing the existence of a triable issue of material fact as to the cause of action or defense?

• Are only the undisputed material facts laid out?
• Are only necessary facts laid out?
• Are any facts overstated?

2. Is evidence identified for each fact?

• Is there a logical relationship between the facts stated and the supporting evidence?
• Is the evidence susceptible of more than one meaning?
• What additional evidence would make the case stronger?

3. Is the separate statement in a separate document?

4. Is the separate statement in a two-column format?

Help on understanding and answering each of these questions can be found in CEB’s California Summary Judgment, chap 6. Before you even begin your summary judgment motion, check out our blog post 10 Things to Check Before Moving for Summary Judgment.

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There are practical difficulties and demands peculiar to wrongful termination litigation. Use these six steps to evaluate the effort involved and the likelihood of success in any wrongful termination case:

1. Keep in mind that the law is in flux. Wrongful termination litigation is an ever-changing area of practice. For example, the enforceability of an arbitration agreement can be a major issue in an employment dispute and is an area of much change, as are statutory claims, such as wage and hour claims and claims that unfair employer’s practices constitute an unfair or illegal business practice under the Unfair Competition Law (see Bus & P C §§17200-17210). Although there are opportunities in this state of flux, it also requires updated research and analysis.
2. Weigh the economic costs against the benefits. In view of the expense, difficulty, and uncertainty in litigating termination claims, carefully consider the economics of litigation by evaluating each available theory of recovery and what is recoverable under each theory.
3. Consider the credibility of the parties. It is essential that the client be both credible and able to maintain credibility throughout investigation and cross-examination. You also have to be able to obtain and produce evidence showing the employer’s lack of credibility.
4. Prepare for demanding litigation. Because these cases are often difficult to settle, be prepared for lengthy litigation and the real possibility of a trial that may last for many days or weeks. Make sure to advise the client of  the (1) financial and emotional impact; (2) potential loss of time from other employment; (3) risk of attorney fees; and (4) probing into his or her personal life. It is crucial that you have the client’s pledge of full cooperation, particularly in view of the uncertainties and emotional impact of litigation, and its impact on the client’s private life and subsequent employment.
5. Explain the duty to mitigate damages. The client must understand the duty to mitigate damages by seeking comparable employment. You’ll need to direct his or her to keep a diary and documents pertaining to this job search.
6. Research the employer’s financial condition. Check whether the employer is able to cover any judgment, including whether any general liability insurance coverage exists. Insurance coverage is rare, but most likely if the client has a cause of action in, e.g., defamation, invasion of privacy, or negligence.

It’s always better to do a thorough evaluation of a case before taking it than having to get out of a badly chosen one.

For a step-by-step guide through a wrongful termination case, turn to CEB’s Handling a Wrongful Termination Action (Action Guide). For more in-depth coverage of all the issues involved with wrongful termination litigation, check out CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment & Retaliation. On a related issue, check out our blog post, 5 Critical Steps to Take Before Bringing an Employment Case.

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___ Explain the deposition process and purpose to your client, including those who are expected to attend and the usual explanation that the examining attorney will offer at the deposition.

___ Instruct your client to address those attending deposition by formal names and otherwise behave as if in a courtroom.

___ Stress the importance of remaining calm and businesslike, regardless of the examining counsel’s behavior. Tell your client that you will object to any improper behavior.

___ Point out that examining counsel may interrupt an answer and that your client should not lose control if interrupted. Explain that you will then ask counsel to try not to interrupt the deponent.

___ Remind your client not to use his or her hands or otherwise “draw pictures” that cannot be accurately reflected in transcript. You may need to explain the role of the reporter and transcript to make this clear.

___ Instruct your client not to use technical slang or imprecise terminology, which could be misunderstood when the transcript is used at trial months or years after the deposition took place.

___ Emphasize the importance of telling the truth at the deposition.

___ Explain that the deponent must have personal knowledge of matters to which he or she is testifying and that it’s unacceptable to “guess” at an answer, but that an “estimate” or a range based on what the deponent saw is appropriate (for example, the red car was 40 to 60 feet from the intersection).

___ Advise your client of papers or other items he or she must bring to the deposition.

___ Tell your client that you or another attorney at the deposition may object to a question. Advise your client to delay his or her answer to allow time for objections and any instruction not to answer.

___ Explain to your client that he or she may ask to take a break at any time during the deposition.

___ Advise your client to tell you privately during the breaks if he or she wants to enlarge or correct an answer.

___ If the deposition will be video recorded, work with your client to correct any mannerisms or habits that could mar his or her performance. Engage in mock video deposition with deponent as aid to correct problems.

Because all your hard work won’t matter if your client blows it, use this checklist to be sure your client knows what to expect in the sometimes strange world of the deposition.

For much more of this hands-on advice for depositions, you need CEB’s Handling Depositions (Action Guide). For in-depth coverage of everything related to depositions, turn to CEB’s California Civil Discovery Practice, chaps 5-6. Also, check out CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand (3 hours MCLE Credit, including .5 hours in Legal Ethics).

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

When dealing with a blended family situation, beware of a conflict of interest. In the estate planning arena, it’s common for the attorney to represent both spouses. This joint representation is based on the assumption that there isn’t any actual conflict of interest between the spouses and there’s no confidentiality as to communications between the attorney and either or both clients. If the clients execute an informed written waiver under Cal Rules of Prof Cond 3-310(C), the attorney can take on this joint representation.

But the position of advisor to both spouses requires particular scrutiny when dealing with a blended family. The complexity of the various relationships may result in potential conflicts that make joint representation inappropriate. For example, if each spouse has children by a prior marriage whom he or she intends to be the primary beneficiary of his or her estate, it may be difficult for one attorney to advise both parties. The divergence in objectives may be too pronounced for joint representation to be feasible or even sensible.

If joint representation won’t work, the only option may be for each spouse to have separate counsel who will assist the clients in either structuring a joint estate plan or separate plans.

Another big issue when dealing with blended families has to do with the characterization of assets. If either client has previously been married, it’s likely that their assets will include both community and separate property:

• assets they acquired during the present marriage will be treated as community property (Fam C §760), and
• assets received as the result of the termination of a prior marriage, whether by death or dissolution, will be characterized as separate property (Fam C §770).

Even if the clients executed a premarital agreement before their current marriage that defined their separate and community property interests, it’s quite possible that the nature of the assets has become confused over time due to mistitling, commingling, or intentional conversion of the character of the assets from separate to community or from community to separate. See Fam C §850.

To deal with asset characterization issues, ascertain at the outset the precise character of the clients’ assets through,  e.g., account statements and deeds, and include in the estate plan an agreement that delineates the community and separate property assets. Because preparation of the agreement requires an understanding of family law principles, you may need to hire a family law practitioner to assist with that task.

These issues and more are covered in CEB’s program Estate Planning for the Blended Family, available On Demand. Also check out CEB’s Complete Plans for Small and Mid-Size Estates (chap 4) on creating estate plans for difficult family situations.

CEB covers all issues related to marital agreements in California Marital Settlement and Other Family Law Agreements and many other issues that cross-over between estate planning and family law in Crossover Issues in Estate Planning and Family Law.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

I think sometimes the most motivating thing can be watching a movie that reminds you of the important aspects of life. The story of a woman who choses a healthy life with her daughter over her previous work-a-holic life isn’t so much motivating because of the literal choice but more is motivating because she actually MADE a choice. How often do you find yourself stuck in a situation where you want to get out, make a change, try something new and instead you just return to old patterns? Always remember you have the power to change!! Use tomorrow as a first day to step into change!!

Employers and their counsel should review these 13 best practices and use them to determine what works best for the company:

1. Be truthful and accurate in all communications with immigration authorities.
2. Establish a written hiring and employment eligibility verification policy and encourage due diligence at all levels of the organization.
3. Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9, proper review of documents, retention procedures, and preparation for audits or raids.
4. Establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination and to ensure that authorized workers don’t face discrimination because of citizenship status or national origin.
5. If the company participates in E-Verify, IMAGE, or SSNVS, establish proper protocols that participation is solely for the purpose allowed and in compliance with appropriate safeguards for confidentiality and privacy concerns.
6. If the company plans to do something that is optional, e.g., an electronic Form I-9 system, E-Verify, do it right or don’t do it at all.
7. Use a tip line mechanism (e.g., a toll-free number or an e-mail box) for employees to report activity relating to the employment of unauthorized workers or discrimination and establish a protocol for promptly and appropriately responding to employee tips.
8. Implement a protocol for promptly and appropriately responding to letters or other information indicating that there is a discrepancy with Form I-9 information.
9. Never refer to someone as an “illegal alien” or make assumptions.
10. Stress the importance of workforce compliance and related nondiscrimination laws to contractors and subcontractors, and review independent contractor agreements for temporary labor on company property to make sure they comply with applicable immigration laws and have corresponding indemnification and attorney fees provisions.
11. If the company has sponsored or will sponsor employees, designate an individual or team to maintain compliance with the applicable requirements for these individuals.
12. If applicable, establish a global immigration plan for the company for the transfer of employees to and from abroad.
13. Review in advance the immigration consequences, if any, of corporate changes ranging from mergers and acquisitions to corporate name changes.

Every company should establish periodic times to review and evaluate its compliance practices so that it can identify and implement policies and procedures that work best as the company changes and grows.

For much more detail on these 13 best practices, including practice tips and sample forms, turn to CEB’s Drafting Employment Documents for California Employers, chap 2. Also check out information on employer requirements under IRCA in CEB’s Advising California Employers and Employees, chap 4.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Motion pictures, in contrast to the tedium of testimony, can result in a greater impact on the jury. They aren’t subject to faulty observation, fading memory, or failing words. In fact, movies often are more accurate than eyewitness testimony and can give a different focus and an expanded scope to the events portrayed to the jury.

Movies show events as they occurred (assuming they’re not edited). Because it’s rare for the crucial issues of causality to be filmed “live,” movies are most often used to impeach a plaintiff’s claim of physical disability and in other situations in which planning is possible. Great examples of uses for motion pictures include

• showing experiments filmed before trial, thus avoiding the pitfalls of a live performance in the courtroom;
• portraying a reconstructed accident scene that helps the jury to visualize the actual event accurately in context; and
• showing the difficulties experienced by a severely injured plaintiff in performing normal activities.

Movies can definitely have a dramatic effect in the courtroom and a powerful impact on juries. But it’s these very strengths that have led some courts to adopt a cautious attitude toward their admission in evidence. Courts worry that jurors can be persuaded to give motion pictures more weight than they deserve and could overreact, particularly to films of plaintiff’s activities to show the extent of disability.

Courts are also concerned that motion pictures may mislead through the use of telescopic lenses, ingenious stage settings, skillful editing/direction, special camera angles, speeded up reproduction, and selective filming of activities.

If you get a movie into evidence, it’s an exhibit like any other and thus may be taken into the jury room during deliberations if the court considers it proper. CCP §612. But if the jury asks to see the films again, the usual practice is to rerun the pictures in the courtroom in the presence of the judge and counsel. This avoids the problem of who would run the projector in the jury room. It’s unlikely a juror would be permitted to operate the projector, as he or she might try to exert some influence on the film’s content, and a technician can’t show it in the jury room because of the possibility of overhearing juror remarks.

Before you can use a motion picture as evidence, you need to authenticate it as you would for any other form of demonstrative evidence. CEB’s Effective Introduction of Evidence in California, chap 11 will walk you through the authentication process. Once you get it in, CEB’s California Personal Injury Proof, chap 17  will help answer all your questions on the use of motion pictures as evidence.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.