This is a beginner’s boot camp focused on Federal Court practice for newer attorneys or those new to federal court. And the handout includes materials from the faculty as well as a primer on Federal Court written by 20+ year career law clerks and Federal Court judges.

9th Annual Federal Court Boot Camp Conference: Learn the Do’s and Don’ts
San Francisco
May 30, 2013
9:00 a.m. – 4:45 p.m.
The Hotel Nikko, 222 Mason Street

What you’ll learn when you attend:
• Introduction to Federal Court
• The Venue Clarification Act
• Creating your Complaint post Twombly and Iqbal
• The Answer: get it right in Federal Court
• E-Filing Tips
• Mandatory Mediation Rules and Expectations
• Case Scheduling and the Case Management Conference: what to expect and what to do
• Discovery In-Depth (Rule 26, Forms, disputes, motions, sanctions, e-discovery sticky issues)
• Ex Parte Motions: why? how? why bother?
• Injunctive Relief: when it matters and how to get it
• Don’t bore your jury: More persuasive Opening Statements and Closing Arguments [and the difference between the two]
• Rule 12 Motions: use, misuse, and best use
• The Summary Judgment Motion – it can make or break your case so do it better than everyone else
• Oral Argument Tips
• Trial Briefs, Pretrial Statements, Pretrial Conferences and Orders (FRCP 16)
• Motions in Limine: why? how? why bother?
• Your Jury Questionnaire: why does it matter and what do you do about it?
• Voir Dire: practical tips from the trenches
• Fed Court Jury Instructions and Jury Verdict Forms – how not to end up with a mis-trial
• Handling and Submitting your Exhibits – practical tips
Click here for more information or to register.

The practice of law is evolving to meet the reality of constantly changing technology, a court system that is challenged with diminished resources, and the stepped-up effort by the Bar to show that it can regulate its members. Like never before, it is important for lawyers to keep abreast of these changes. This program will provide 1 hour of CLE ethics credit, and will focus on recent developments concerning professional responsibility case law and what is in the pipeline.

DATE: Friday, September 21, 2012

TIME: 12:00 Noon

PLACE: FIREHOUSE RESTAURANT

1112- 2nd Street, Old Sacramento

Judge Thadd Blizzard, of the Sacramento County Superior Court, will offer the view from the bench. Before his appointment to the bench in 2009, Judge Blizzard practiced at the Weintraub firm for more than 20 years. Betsy S. Kimball, a partner in Boyd, Kimball & Wilson, LLP, is a certified specialist in both legal malpractice law and appellate law. Much of her practice for more than 20 years has been devoted to representing lawyers.

 In an opinion published in July by the Third District Court of Appeal, Betsy Kimball obtained a partial, but key, reversal of a judgment of dismissal which had been entered against two women who were sexually assaulted when the sought treatment for their respective on-the-job injuries.  The trial court had dismissed the plaintiffs’ case under a rarely used statute for the misjoinder of plaintiffs, Code of Civil Procedure section 378.  No appellate decision had previously construed section 378 in the context of a multiple victim, sexual torts case.  The named defendants include the doctor (who is presently facing multiple felony charges) and his employer, U.S. Healthworks, Inc., and/or U.S. Healthworks Medical Group, P.C.  

 Because the women were assaulted in relatively different ways, on different days, months apart, the trial court sustained the defendants’ demurrers without leave to amend and dismissed the entire lawsuit.  The Court of Appeal upheld the dismissal of the case against the doctor, but reversed the judgment in favor of his employer.  The plaintiffs may now proceed with their case against the employer, in which they allege that the employer negligently hired and then supervised the doctor, permitting him to examine female patients alone, even after at least one female patient complained about his conduct.  This case represents a significant victory not only for the plaintiffs, but for all victims who can allege and prove that they were left unprotected by institutions which knew enough that they should have taken steps to protect their patients, students, members, and the like.

 Moe v. Anderson – filed July 11, 2012, Third District
     Cite as C068872
     Full text http://www.metnews.com/sos.cgi?0712//C068872

If I Could Take A Poll Right Now,

I would ask whether you ever represent more than one client in the same case. If you answer “yes,” then my next question would be: “Do you always comply with Rule 3-310 of the Rules of Professional Conduct?” If you answer “no,” “What is Rule 3-310?” or “huh?” – I have information for you that could save a lot of future time, trouble and money.

Rule 3–310(C) provides: “A member shall not, without the informed written consent of each client: [¶] (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or [¶] (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict.” The “Discussion” comments to the Rule are instructive: “Subparagraph (C)(1) and (C)(2) are intended to apply to all types of legal employment, including concurrent representation of multiple parties in litigation …” (Emphasis added.)

The usual argument that I hear for why rule 3-310(C) does not apply to your cases is: “My clients are one big happy family and they don’t have any conflicts.” Even if true, this argument lacks an appreciation for what a “potential conflict” is under Rule 3-310. In the joint representation context, a potential conflict is the prospect or potential that the common interest of the two or more jointly represented clients might diverge in the future, which in turn could have consequences for each of the jointly represented clients. These consequences for the clients could include their inability to protect communications with counsel because of Evidence Code section 962 and could even extend to a dispute over which of them has the right to the original client file (Rules of Prof. Conduct 3-700(D)(1)).

My purpose here is not to convince you that a potential conflict interest really does exist in every joint representation of clients, but to get you to accept that this is what the Rule says and to take the relatively simple steps at the beginning of the case that can save you a lot of trouble later. What could happen if you do not? In my practice, I have seen all of the following consequences follow from failure to comply with Rule 3-310: (1) disqualification of the attorney from the case, (2) denial of fees to the attorney, (3) Bar complaints that include charges for violation of Rule 3-310(C), and (4) the addition of a bothersome, i.e., difficult to defend, cause of action for breach of fiduciary duty to an otherwise simple legal malpractice action.

Compliance with Rule 3-310 is easy enough. At the time you are retained or within a few days after, give your clients a written disclosure of the potential conflicts of interest and obtain their “informed written consent” to the representation. “Informed written consent” means the affected clients’ written agreement to the representation after you have informed them of the “relevant circumstances” and the “actual and reasonably foreseeable adverse consequences” to the clients of the joint representation. (Rule 3-310(A).)

If it is “how am I going to get paid,” then please continue reading. In this column I am going to discuss the second thing that you should thinking about when you take over a case from another lawyer: how to keep yourself out of trouble if there is any chance the first lawyer malpracticed the case. I recently have handled several cases in which the second lawyer has been sued for failing to advise the client that he or she may have a legal malpractice claim against the first lawyer. If you are thinking, “but I don’t do legal malpractice” or “it’s not in my fee agreement,” don’t stop reading yet.

We all believe that the scope of an attorney’s duty to　his/her client is defined by the contract between them. (See, e.g., Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54-55; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983-984.) Decades of case law regarding the establishment of an attorney-client relationship recognize and protect the attorney’s “right” to be free from the unilateral imposition of an attorney-client relationship solely at the (would-be) client’s behest. For example, an attorney-client relationship cannot be established unilaterally by the purported client because he or she “thinks” an attorney is representing his or her interests. (See Fox v. Pollack (1986) 181　Cal.App.3d 954, 959.) By parity of reasoning, we argue, attorneys must be free to limit the scope of the representation that they agree to provide their clients – especially given the requirements that attorneys be competent to handle the matters they undertake and that they refer clients to specialists as needed. (CACI nos. 600, 604.) Likewise, courts should give effect to the provisions in retainer agreements by which attorneys define the scope of the representation they agree to provide. It is really important to define the scope of your representation in your fee agreement.

But here’s the problem. Most “not-within-the-scope-of-my-fee-agreement” arguments are met with two cases, Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930 [lawyer has duty to alert client to legal problems which are reasonably apparent even if outside scope of lawyer’s retention], and Nichols v. Keller (1993) 15　Cal.App.4th 1672 [same]. Janik concerns the alleged failure of class-counsel in a class action to advise their clients (members of the class) about additional claims against third parties arising from the same course of conduct. (Janik, supra, at pp. 941-942.) In Nichols, the attorney who was representing an injured client in his worker’s compensation case was held to have a duty to advise the client that he might also have a civil action arising from the same injury. (Nichols, supra, 15　Cal.App.4th at pp. 1683-1684.) Neither case should support imposing a duty on the second lawyer to identify potential malpractice by the first lawyer whom the second lawyer replaced and to preserve the legal malpractice claim, but that has become a tough sell in law and motion court.

Here are my recommendations. First – but probably not enough – ensure that your fee agreement with the client, in the words of the Nichols court, “make[s] [the] limitations in representation very clear to his client.” (Nichols, supra, 15 Cal.App.4th at p. 1687.)

Second, have a basic understanding of the legal malpractice statute of limitations, Code of Civil Procedure section 340.6. One of the few certain things about the statute is that it will not run any sooner than one year after the first lawyer has ceased representing the client in the matter in which the lawyer (arguably) malpracticed. Learn the case well in the first 9 or 10 months so that you can be satisfied that there is nothing that you need to warn the client about. Third, while learning the case or handling it, you conclude that the first lawyer may have malpracticed, notify the client immediately and in writing. Explain in plain English that you do not, and will not, handle the potential legal malpractice claim (assuming that’s true) and advise the client to seek legal counsel promptly.

Bottom line: there are some local lawyers who were shocked when they were sued for allegedly failing to protect their former client’s legal malpractice case against a prior lawyer. Don’t be the next one.

programs of California Lawyer for the Arts

Mediators’ Circle presents…

MEDIATION LESSONS FROM GHANA: RESOLVING CONFLICT WITH CONCERN FOR THE RELATIONSHIP

Friday, April 20, 2012
5:30-8:00 p.m.
215 Alvarado Road, Berkeley, CA 94705

General public: $10

For more information call Bonnie Kneitel at (916) 441-7979 ext.105 or Toni Garrett at (510) 845-4367

Join us for a panel discussion about how Africa has brought mediation into many aspects of its civic, social, and political life. Panelists will reflect on their experiences from their trip to Ghana this past summer, including their:

• Visit to the Ashiman Community Mediation Center in Accra
• Private meeting with the Queen Mothers of Kumasi
• Audience with the Chief Justice of the Supreme Court
• Participation in the Third African International Peace Conference

Panel members include:
Ellen Taylor, Associate Director of California Lawyers for the Arts
Susan Orr, Artist, Mediator, and Buddhist Community Leader
Betsy Kimball, Attorney and Appellate Court Mediator
Toni Garrett, Photographer, Writer, and Business Woman

Moderator: Ernest Uwazie, Executive Director of the Center of African Peace and Conflict Resolution

Panelists will share examples of African textiles, jewelry, and photos from the trip.

****Participants will also be treated to an art show featuring the work of Artist-Mediators Bob Thompson, Vallene Weeda, and Susan Orr.****

View full article at Sacramento Business Journal »

David Boyd and Betsy Kimball are very proud to announce the addition of Bob Wilson to the firm. Prior to joining Boyd, Kimball & Wilson, LLP as a partner, Bob served the community as the Executive Director of Sacramento Child Advocates Inc., a non-profit law firm which served the 3,000-plus children in foster care in Sacramento County. Immediately prior to Sacramento Child Advocates, Bob practiced in Sacramento for two decades in the areas of white collar criminal defense and business litigation. At Boyd, Kimball & Wilson, LLP, Bob joins David Boyd and Betsy Kimball as a litigator and trial attorney and adds his diverse experience to the firm. Bob’s practice will focus on white collar criminal defense, health care fraud and business litigation.

David and Betsy are both State Bar certified specialists in legal malpractice law and will continue to represent lawyers in civil, ethics, and practice management matters, as well as clients in the prosecution of legal malpractice claims. Betsy is also certified by the State Bar in appellate law and will continue to handle and to consult on writs and appeals. David is a private mediator with 35 years of litigation experience in professional liability, products liability, construction defect and injury cases.