The State of the Courts in San Bernardino County 2013

By Michael Reiter, Attorney at Law

The short answer is that the Courts are not in good shape, according to Presiding Judge Marsha Slough.  The San Bernardino Sun was at the San Bernardino County Bar Association Annual Meeting (the link will probably be good for a week or so after this post).

 

Because I am Director at Large of the San Bernardino County Bar Association, I sat at the front table.  The Sun online had this picture.  The caption online (once the link didn’t work) is “Presiding judge of the San Bernardino Superior Court Marsh [that's what it says] Slough, speaks at the Annual Meeting of the San Bernardino County Bar Association Thursday June 27, 2013 at the San Bernardino Hilton Hotel in San Bernardino.”

I am in the picture, and I’m sitting next to Bill Shapiro.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

Never Underestimate The Opposition Attorney

By Michael Reiter, Attorney at Law

When I was a teenager, I attended a program in Washington D.C. in the law.  Though I had wanted to be an attorney for about seven years at that point, I had actually applied to be in a program regarding national politics, but that was full, so I went to the legal program instead.

The program was very interesting.  We visited a juvenile correction facility, we went to the local District of Columbia courts, we visited the National Rifle Association and the American Civil Liberties Union, and though I cannot remember exactly because I’ve been a number of times, the Supreme Court and Congress. However, I recall in particular one visit to a public defender in the local courts.  On each visit, someone gave a presentation and the students were able to interact with the presenter.

The attorney with the public defender’s office made a great impression on me. This attorney had the passion and zeal of a true believer.  He said that people asked how he could sleep at night defending criminals.   He said “like a baby.”   He made one student, whose uncle was murdered, cry. He spit venom on many occasions, most memorably against non-public defender appointed attorneys whom he labeled as “soup-on-their-tie lawyers.”

Soup-on-their-tie lawyers.  Meaning, a slovenly attorney, from a ninth-tier law school, who barely passed the bar exam, of questionable ethics and practices, who was never prepared, always took the short cut.  The image of that lawyer is burnt into my brain.  At one of my previous employers, this kind of attorney was referred to as a “generic discipline-able attorney.”

As I grow older, however, let me caution newer attorneys not to underestimate the opposition attorney.  As a society, we have a tendency to overemphasize conventional wisdom.  The person wearing glasses is intelligent. Or on the other side of the coin, someone who looks like they slept in their suit (or spilled soup on their tie) is incompetent.

As a lawyer, you should not underestimate the opposition attorney, even if they have made a few mistakes along the way.  Even the worst attorney in the world sometimes stumbles into a great case.  Remember what my Theory of Knowledge teacher taught me: even a broken clock is right twice a day.  Do not be lulled into a false sense of confidence because of who is opposing you.  You still need to do your homework and do your job.  Particularly if you are a civil defense lawyer. You usually do not get to pick your cases.  The plaintiff’s lawyer usually does get to pick their cases.  Sometimes the case is better than you initially think.  Thinking a good case will go away because of the opposition attorney is an easily avoidable mistake.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

Why are legal pads canary yellow?

By Michael Reiter, Attorney at Law

There are a few short answers.  They don’t have to be canary yellow, they don’t have to be legal size, they do have to 1.25 inch side margin, and no one knows for sure.  The best researched article on the subject is Old Yeller, The Illustrious History of the Yellow Legal Pad, Suzanne Snider, Legal Affairs, May/June 2005.  This has the best answers to the question.

I am transitioning away from canary legal pads because they don’t scan right.  The yellow comes out blurred for some reason, and if I ever have to convert my scanned notes into printed notes, it doesn’t make sense to use that much yellow ink.

Jay Foonberg, in his seminal How to Start & Build A Law Practice, 5th Edition, relates “Carry a yellow legal pad with you whenever you go to a public place.  When you have a yellow pad with you, you are loudly, but nonintrusively, proclaiming to every one who can see the pad that you are a lawyer.  Everyone knows that lawyers use yellow pads and very few people who are not lawyers use yellow pads.” Id. at pg. 142.

Anecdotally, and with all due respect to the amazing Jay Foonberg, I have not found that to be the case.  The only time that people ask me if I am a lawyer is when I am in the courthouse hall and they have a question.  Though I sometimes have a yellow legal pad, I am being asked because I am wearing a suit and tie and I am standing in front of a closed courtroom looking at the day’s calendar.  Those contacts are not new business, but people needing assistance with the calendar.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

Why do you want to be a lawyer?

By Michael Reiter, Attorney at Law

Too many people go to law school with goals that are not necessarily, in my humble opinion, conducive to being happy, productive member of the legal community.  Before considering spending money to become an attorney, no matter the path, young people in the United States should ask themselves, “Why do I want to be a lawyer?”  Law can be a difficult profession, not at all like what you might see in television and the movies.  One thing that prospective attorneys do not often realize is the profession requires that you put your own needs firmly below that of the client.  Because the law often draws the ego-driven, this can cause much unhappiness, particularly in younger lawyers.

I have been thinking of how to express my feelings on this topic.  I have given advice, both solicited and unsolicited to people before they go to law school, and even some in law school.  I think one paragraph in an article that arrived today in the California Lawyer put it as succinctly as possible.  These are the words of Dan Grunfeld, a partner at Kaye Scholer LLP.  I have never had the privilege of meeting Mr. Grunfeld, nor have I ever had any cases with his current firm.  However, his essay “A Lost Generation” which appears at page 16 of the March 2013 California Lawyer.  Mr. Grunfeld writes (in the paragraph I mentioned earlier:

For their part, would-be lawyers should think twice before even applying to law schools. The legal profession can be noble and rewarding. Yet it is also demanding, and not immune to the same economic forces that have thrown so many other industries into turmoil. Law school hopefuls should apply because they want to become lawyers, not because they can’t figure out what else to do – and especially not because they see it as an easy path to a lucrative career.

Do not go to law school if your sole goal is to make money.  There are a lot of better paths to make money.  Also, you have to have a commitment to being a lawyer-to helping people (in the broadest sense of the world) with their problems and in turn by helping society resolve issues and make things happen within the bounds of the legal framework that makes the United States such a great country.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

Juror Questions in an Orange County Courtroom

By Michael Reiter, Attorney at Law

While waiting for a Case Management Conference in Santa Ana, California, I found these questions permanently affixed to a foam core board:

1. State your name.

2. In what city do you live?

How long have your resided there?

3. State your occupation and employer.

If retired, what was your occupation?

4. Do you have children?

If so, what are their ages and occupations?

5. Are there other adults living in your home?

Of so what are their occupations?

6. Have you had any prior jury service?

If so, was it a civil or criminal case?

These are typical of questions asked by the court during voir dire in other California counties, as well.

 

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

Judicial Council Considering Allowing Courts To Suspend Case Management By Local Rules

By Michael Reiter, Attorney at Law

The Judicial Council is considering, and asking for comment on the following change to the California Rules of Court Rule 3.720 to add subdivision (b):

(b) Emergency suspension of rules 26

A court by local rule may exempt specified types or categories of general civil cases filed 28 before January 1, 2016, from the case management rules in this chapter, provided that the 29 court has in place alternative procedures for case processing and trial setting for such 30 actions, including, without limitation, compliance with Code of Civil Procedure sections 31 1141.10 et seq. and 1775 et seq. In any case in which a court sets an initial case 32 management conference, the rules in this chapter apply.

Advisory Committee Comment
Subdivision (b) of this rule is an emergency measure in response to the limited fiscal resources available 37 to the courts as a result of the current fiscal crisis and is not intended as a permanent change in the case 38 management rules.

This first came to my attention at the San Bernardino County Bar Association Board of Directors’ Meeting on Monday, January 14, 2013.  The Judicial Council is asking for review and comment by January 25, 2013, and proposes to implement the proposed rule on February 26, 2013.

The request is in response to the Los Angeles Superior Court and the Sacramento Superior Court because of their responses to the funding problems the courts are having because of the State of California’s budget.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374
Telephone: (909) 708-6055

California Welfare and Institutions Code section 8102 Return of Firearms Petition

By Michael Reiter, Attorney at Law.

One of the more unusual procedures that sets Municipal Law from the ordinary practice of law is the petition process set forth in Section 8102 of the California Welfare and Institutions Code. This procedure has to do with the return or destruction of firearms seized from people subject to a Welfare and Institutions Code section 5150 hold.   These are commonly called Return of Firearms Petitions.  California Welfare and Institutions Code section 8102 reads in pertinent part:

(b) Upon confiscation of any firearm or other deadly weapon from a person who has been detained or apprehended for examination of his or her mental condition, the peace officer or law enforcement agency shall notify the person of the procedure for the return of any firearm or other deadly weapon which has been confiscated.

Where the person is released, the professional person in charge of the facility, or his or her designee, shall notify the person of the procedure for the return of any firearm or other deadly weapon which may have been confiscated.
Health facility personnel shall notify the confiscating law enforcement agency upon release of the detained person, and shall make a notation to the effect that the facility provided the required notice to the person regarding the procedure to obtain return of any confiscated firearm.
(c) Upon the release of a person as described in subdivision (b), the confiscating law enforcement agency shall have 30 days to initiate a petition in the superior court for a hearing to determine whether the return of a firearm or other deadly weapon would be likely to result in endangering the person or others, and to send a notice advising the person of his or her right to a hearing on this issue. The law enforcement agency may make an ex parte application stating good cause for an order extending the time to file a petition. Including any extension of time granted in response to an ex parte request, a petition must be filed within 60 days of the release of the person from a health facility.
(d) If the law enforcement agency does not initiate proceedings within the 30-day period, or the period of time authorized by the court in an ex parte order issued pursuant to subdivision (c), it shall make the weapon available for return.
(e) The law enforcement agency shall inform the person that he or she has 30 days to respond to the court clerk to confirm his or her desire for a hearing, and that the failure to respond will result in a default order forfeiting the confiscated firearm or weapon. For the purpose of this subdivision, the person’s last known address shall be the address provided to the law enforcement officer by the person at the time of the person’s detention or apprehension.
(f) If the person responds and requests a hearing, the court clerk shall set a hearing, no later than 30 days from receipt of the request. The court clerk shall notify the person and the district attorney of the date, time, and place of the hearing.

(g) If the person does not respond within 30 days of the notice, the law enforcement agency may file a petition for order of default.

That’s basically the procedure. Each entity and court implements the section a little differently.  In the  City of  San Bernardino, the petition is in the name of the Chief of Police and filed by the City Attorney’s Office. Section 8102(f) states that the Clerk shall notify the person and the district attorney, which suggests that the District Attorney can file the petition.
For example, here is the minute order from a petition wherein the City of San Bernardino sought a judicial determination on the return of weapons:

ACTION CAME ON FOR STATUS HEARING ON PETITION SEEKING JUDICIAL DETERMINATION RE: RETURN OF
FIREARMS OR DEADLY WEAPONS (W&I SECTION 8102).
-
THE COURT FINDS THAT NO ANSWER HAS BEEN FILED; THAT THE RESPONDENT HAS NOT CONTACTED THE CITY
ATTORNEY; AND THAT THE RESPONDENT DID NOT APPEAR IN COURT TODAY.
-
THE COURT ORDERS A DEFAULT JUDGMENT ENTERED ON BEHALF OF THE PETITIONER, CITY OF SAN
BERNARDINO, AND AGAINST THE RESPONDENT, [Omitted]
-
THE COURT FURTHER ORDERS WEAPON(S) DESTROYED PURSUANT TO THE LAW.
STAGE AT DISPOSITION: ALL OTHER JUDGMENTS BEFORE TRIAL.
CASE DISPOSITIONED BY JUDGMENT
ACTION – COMPLETE

In this case, the petitioner did not respond, and the court ordered the weapon(s) destroyed pursuant to law.  You can find the City of San Bernardino’s cases by searching for the name of the police chief or past police chiefs.

In Redlands, when I was Assistant City Attorney, this situation only came up once when the Police Department, in the name of the People of the State of California, tried to do it by themselves, and brought it to the City Attorney’s Office when the respondent responded.

The City of Ontario does it a little differently.  Those cases are filed in the name of the Ontario Police Department versus the gun owner.   The District Attorney is added as a third party, but the petition is prosecuted by the City Attorney.

Here is an example of a minute order in a similar default hearing involving the Ontario Police Department:


THE SAID DEADLY WEAPON IS SUBJECT TO DISPOSITION PURSUANT TO SECTIONS 12028 AND 12032 OF THE
PENAL CODE.
STAGE AT DISPOSITION: ENTRY OF JUDGMENT – DEFAULT JUDGMENT BY COURT BEFORE TRIAL (CIV)
DISPOSITION: ENTRY 0F JUDGMENT DEFAULT BY COURT BEFORE TRIAL

Even in San Bernardino County and San Bernardino County Superior Court, you can see there are different ways that the courts handle these petitions, and different ways that city attorneys, and others, file these petitions.

The appeals courts give other variations of this theme.  In the People of the State of California v. One Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, the Ventura County District Attorney’s Office filed the petition in the name of the People, and sued the property in question like in an asset forfeiture case.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055
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