San Jose Attorney - Almaden Times Articles

Some Do's And Don'ts For Your Lawyer To Keep In Mind

This week's question:

I think I have a pretty good lawyer, but she's always doing little favors for the other side-without any real reason. Like agreeing to postpone a deposition because the other attorney said he had a "scheduling conflict" that day. Why do you attorneys do things this way? After all, we pay you a lot of money to fight for us!!

/s/Tracy T., Almaden Valley

Dear Tracy- You emailed in a great question, Tracy. Thanks for that. I will try to answer it properly. It has been my experience that most attorneys try to get along and do our job professionally and efficiently, keeping in mind the client's best interests. Oh I know, some attorneys have adopted a "scorched earth policy" where they "fight" for everything, only to end up costing everyone more money-on both sides.

There are many guidelines that are available to us in the practice of law. These guidelines include the American Bar Association, State Bar of California, and our local Santa Clara County Bar Association. Our local Santa Clara County Bar Association, of which I have been a member since 1970, has published a "Code of Professionalism."

Although it is a bit longer than this column allows, some of the key provisions are as follows:

1. A lawyer should always be mindful that the law is a learned profession and that among its goals are devotion to public service, improvement of the administration of justice, and the contribution of uncompensated time and civic influence on behalf of persons who cannot afford adequate legal assistance.

2. A lawyer should work to achieve his or her client's lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner.

3. A lawyer should understand and advise his or her client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.

4. Consistent with existing law and court orders, a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected.

5. The timing and manner of service of papers should not be calculated to disadvantage or embarrass the party receiving the papers.

6. Written materials submitted to the court should always be factual, concise, and accurately state current law and fairly represent the parties' position without unfairly attacking the opposing party or opposing counsel.

7. A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.

8. A lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost effective and just resolution of a dispute.

9. Motions should be filed or opposed only in good faith and when the issue cannot be otherwise resolved.

10. A lawyer should raise and explore the issue of settlement and alternative dispute resolution in every case as soon as the case can be evaluated.

11. All matters should be handled with due respect for the rights of privacy of parties and non-parties.

12. Lawyers should conduct themselves with clients, opposing counsel, parties and the public in a manner consistent with the high respect and esteem which lawyers should have for the courts, the civil and criminal justice systems, the legal profession and other lawyers.

13. A lawyer should ensure that all business transactions and agreements are negotiated, documented and consummated in an atmosphere of cooperation and with informed authority of the client.

14. In family law proceedings, a lawyer should seek to reduce emotional tension and trauma and encourage the parties and lawyers to interact in a cooperative atmosphere, and keep the best interests of the children in mind.

15. A lawyer representing a parent should consider the welfare of a minor child and seek to minimize the adverse impact of the family proceeding on the child.

16. A lawyer should not participate in a child custody or visitation dispute motivated by financial or tactical objectives of the client.

17. A lawyer for one of the parents should not meet with, confer with, either in person or by telephone, or discuss the litigation with the minor child or children of the parent/client.

More "do's and don'ts" could be listed, Tracy, but space limitations to do not allow for this. I hope the above information is helpful. Just so you know that your attorney can be very assertive, pro-active, and effective and still stay within our professional guidelines.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

New "Seniors & The Law" Published By The State Bar Of California

This week's question: A few years ago you wrote a column in the Almaden Times about a good pamphlet that pertains to rights and obligations of senior citizens. I did not save a copy of that pamphlet and even if I did, it's probably out of date by now. Do you know whether there is a new one available?

 /s/Vickie V., Almaden Valley

Dear Vickie- As a matter of fact, yes, Vickie, I do know a little about that pamphlet. A brand new one was just published in April, 2009, by the Office of Media and Information Services of the State Bar of California. It is entitled "Seniors & the Law-A guide for Maturing Californians" and it was made possible by a grant from the California Bar Foundation.

In one word, this new pamphlet is great!! It is 16 pages of excellent information especially for our senior citizens. A wide range of topics include Social Security highlights, reverse mortgages, and whether there is any special tax relief for seniors.

Other topics include whether a landlord can turn down a senior citizen on the basis that the person is a senior citizen. (The answer is "no".) You may have read in this column from time to time a little about living trusts. That topic is covered as well in an area of the pamphlet entitled "How will my property be distributed after my death?" The area also includes "What is a revocable living trust?"

A particularly helpful article is included that deals with "Losing a Spouse or Parent".

For example:

* Make funeral and burial arrangements;

* Obtain several copies of the death certificate;

* Gather relevant documents, such as the will, insurance policies, trusts, and stock, bank account and annuity statements;

* Contact the Social Security Administration (if the deceased was an eligible recipient);

* Send a notification and death certificate to the director of public health (if the deceased was a Medi-Cal recipient) within 90 days after the death;

* Notify any life insurance companies of the death;

* Contact the trustee of any trust and executor of any will and/or the attorney who prepared it;

* Call the administrator of the decedent's pension plan;

* Notify the decedent's banks and financial institutions;

* Contact credit card companies; and

* Be sure that insurance or Medicare claims have been processed before paying any medical bills.

As I mentioned above, I believe this pamphlet is just excellent, so good that I ordered and received 50 for my Almaden Times readers. If you would like to stop by my office for a free copy while they last, just stop in between 9:00 A.M. to 5:00 P.M. (No, this is not a sales gimmick; your contact information will not even be asked about.) Our office is located at the corner of Camden Avenue and Trinidad, off Almaden Expressway. No questions asked.

If you would prefer, you can go online and see and order this or 18 other very useful pamphlets published by the State Bar of California. Other topics include "How Can I Find and Hire the Right Lawyer", "How Do I Use the Small Claims Court", "What Should I Know About Serving on a Jury", and many other topics.

Each free, 16-page consumer guide has its own email address for ordering: seniors@calbar.ca.gov is the email address for the Seniors and the Law pamphlet. The other pamphlets are listed in the State Bar web site. Just go to your favorite search engine and enter: State Bar of California. From there select Public Services and then Consumer Information. You can contact them for as many of the free pamphlets as you need.

Good question, Vickie. I hope the above information is helpful.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Substance Abuse Provisions May Work For Your Living Trust

This week's question: My husband and I are thinking about drawing up a living trust and leaving some money to our grandchildren. This money will be managed by our son, our Successor Trustee, after we are gone, while the children are under 25. With so many children getting into illegal drugs these days, is there any way we can deal with that unfortunate possibility?

/s/Victoria V., Almaden Valley

Dear Victoria: You and your husband are smart to think about your living trust and some of its provisions. And you are wise to consider possible substance abuse as it may affect your grandchildren in the future. It is very workable to have some paragraphs in your living trust that deal with substance abuse. The Successor Trustee, after you and your husband are gone, will manage the money set aside for your grandchildren, including the enforcement of the substance abuse provisions.

Here are some ideas that may be helpful, not necessarily in any order of priority. If the Successor Trustee, also called "the Trustee", reasonably believes that a beneficiary of the trust routinely or frequently uses or consumes any illegal substance so as to be physically or psychologically dependent upon that substance, or is clinically dependent upon the use or consumption of alcohol or any other legal drug or chemical substance that is not prescribed by a board certified medical doctor or psychiatrist in a current program of treatment supervised by such doctor or psychiatrist, then certain provisions apply.

Those provisions would also apply if the Trustee reasonably believes that as a result the beneficiary is unable to care for himself or herself, or is unable to manage his or her financial affairs. In those events, all mandatory distributions (including distributions upon termination of the trust) to the beneficiary, all of the beneficiary's withdrawal rights, and all of the beneficiary's rights to participate in decisions concerning the removal and appointment of Trustees will be suspended.

In those events, the following provisions will apply: (1) The Trustee may request the beneficiary to submit to one or more examinations (including laboratory tests of bodily fluids) determined to be appropriate by a board certified medical doctor and to consent to full disclosure to the Trustee of the results of all such examinations. The Trustee shall maintain strict confidentiality of those results and shall not disclose those results to any person other than the beneficiary without the prior written permission of the beneficiary. The Trustee may suspend all distributions otherwise required or permitted to be made to that beneficiary until the beneficiary consents to the examination and disclosure to the Trustee.

(2) Treatment and cost thereof. If, in the opinion of the examining doctor, the examination indicates current or recent use of a drug or substance as described above, the examining doctor will determine an appropriate method of treatment for the beneficiary. For example, counseling or treatment on an in-patient basis in a rehabilitation facility may be arranged that is acceptable to the Trustee. If the beneficiary consents to the treatment, the Trustee shall pay the costs of treatment directly to the provider of those services from the suspended distributions.

(3) Resumption of Distributions. The Trustee may resume other distributions to the beneficiary (and the beneficiary's other suspended rights will be restored) when, in the case of use or consumption of an illegal substance, examinations indicate no such use for 12 months. Distributions may also resume when the Trustee in his or her discretion determines that the beneficiary is able to care for himself or herself and is able to manage his or her financial affairs.

(4) Disposition of Suspended Amounts. Your living trust may also go on to state that when other distributions to the beneficiary are resumed, the remaining balance, if any, of distributions that were suspended may be distributed to the beneficiary at that time. Also, if the beneficiary dies before distribution of those suspended amounts, the Trustee shall distribute the balance of the suspended amounts to the persons who would be the alternate beneficiaries of that beneficiary's share (or beneficiaries through the exercise of a power of appointment) as otherwise provided in the testator's Will or the Trust Agreement.

(5) Exoneration. Your living trust may also have provisions that protect the Trustee for any actions of the beneficiary and that protect any doctor employed by the Trustee.

(6) Tax Savings Provision. Special technical provisions would also be included that pertain to mandatory distributions and/or withdrawal rights that may be required for tax purposes.

So there you have some ideas, Victoria. Although some of the wording is a bit formal and perhaps too much jargon is used, this is the kind of material you might be thinking about for your new living trust. Of course, you will want to discuss this with your own attorney in some detail. Only he or she can guide you in the right direction.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

You May Ask For A Different Judge, But Do You Want To?

This week's question: I have a case that I am handling myself, so I can't ask my attorney this question. There is one judge at the courthouse that I know about and I do not want him to hear my case. Under any circumstances. Is there any way that my case can be assigned to a different judge?

/s/ Brian B.

Almaden Valley Dear Brian- I will assume that your legal case is pending in state court at some level and not in Federal Court, since my experience is primarily in state court. Each system has different rules that must be followed. First of all, if you can show (i.e., prove) that the judge is biased or prejudiced against you, it is possible to have the case assigned to a different judge. This must be done quite early in the process, however. And it is probably easier said than done to prove that the judge is biased or prejudiced against you. This would be called a "challenge for cause."

Secondly, there is another way to have your case assigned to a different judge. This is called a "peremptory challenge" under California Code of Civil Procedure Section 170.6. According to a recent case: "Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the time of the motion are imposed by this statue, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6 must be granted."

In other words, "[b]y enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice; proof of actual prejudice is not required." In practice, a party or an attorney for a party is first sworn to tell the truth and then states under oath or in a written declaration that he or she believes that he or she cannot get a fair trial before Judge [name]. If this is done timely, a different judge is then assigned to hear the case. This may cause some delay in the proceedings, but that's the way it is.

There are a few important things to keep in mind. The peremptory challenge must be done quite early in the case and within a very few days after the case is first assigned to that judge. You cannot wait until the case is half over during a trial in front of that judge and then try to exercise the peremptory challenge under CCP §170.6. It doesn't work that way.

Another important thing to keep in mind is that you have only one such peremptory challenge in any one case. So, you may succeed in your §170.6 challenge before that particular judge only to be assigned to a judge whom you perceive as worse. That's just tough. You made your decision. So I think it's safe to say that you exercise your CCP §170.6 with great caution.

You can read about this topic online by going to your favorite search engine and entering California Code of Civil Procedure Section 170.6. It should be up on your screen in less than a half a second. As always, you will want to discuss this topic with your own attorney to see how peremptory challenges may apply or may not apply to your situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

The Latest On Patdown Searches At Professional Football Games

This week's question: I remember your column several months back about patdown searches at professional football games in California. Evidently, a suit was filed against the 49ers to stop that practice but the suit was thrown out of court. But then an appeal was filed. You said that you would try to follow up on that suit. I was wondering if there have been any developments.

/s/Hank H., Almaden Valley

Dear Hank: It looks like you are going to hold me to that promise to follow up on that case. Not a problem, since I have an interest in that issue too. In case some of our Almaden Times readers missed this story, after 9/11 the National Football League instituted a policy of requiring all people attending their football games to undergo a patdown search of their body on the way into the game. All teams are required to do this. Daniel and Kathleen Sheehan from Danville were season ticket holders to 49er games for many years and took offense to these patdown searches. (And personally, I don't blame them, being a Raiders fan and also searched at each home game.)

The Sheehans filed suit in San Francisco County Superior Court to stop the patdown searches by the "private security screeners". However, the trial court threw the suit out of court on a "demurrer", saying that the Sheehans didn't have a case. This order was affirmed in the intermediate Court of Appeal. The case then went to the California Supreme Court where it was fully briefed and argued.

The Court stated that the issues were as follows: (1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy? (2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as a matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?

It is important for our readers to understand the procedure that was involved in the trial court. After the suit was filed, the 49ers filed a "demurrer." This is in essence a motion in the trial court that says in effect that even if we assume everything in your suit is true, it does not state a "cause of action" or grounds for a suit. In other words, the defendant is saying that the suit must be thrown out of court before it goes any further, based on various reasons.

In this case, the trial court agreed with the 49ers and said the Sheehans had no grounds for a suit and the intermediate Court of Appeal agreed. However, after the case was argued and submitted in the California Supreme Court, the Court on March 2, 2009, announced its decision. It ruled that the Sheehans, plaintiffs in the suit, maybe-just maybe-had grounds for a suit but it was too early to tell. The Court ruled that: "...In this case, assuming the alleged facts to be true, we hold the record does not contain enough information to establish as a mater of law that the complaint fails to state a cause of action. Accordingly, this action is not susceptible to disposition on demurrer, ... and we remand the matter for further proceedings consistent with this opinion."

In short, the inadequacy of the record of the trial court because of the demurrer precluded a determination of whether patdown searches of football game attendees were reasonable. So, Hank, what this means is that the case now goes back to the trial court and the parties will typically engage in "discovery." I say "typically" because I am not part of that litigation and I do not have personal knowledge of what is going on, but I do have some idea as to what usually occurs.

"Discovery" usually involves several devices to learn and establish the key facts involved in the controversy. Written interrogatories are often sent from one side to the other, documents are produced that may be relevant, and depositions are taken of key witnesses. This often takes several months for "discovery" to be completed, and its purpose is to reduce the number of surprises and establish important facts later on at trial. After discovery is completed the matter may be set for trial.

Along the way, there is always (well, almost always) the chance that the case may settle. When might we hear further? It's impossible to say, but I for one will not be holding my breath until a decision is announced by the trial court. It could take quite a while, and in the meantime, presumably the patdown searches will continue.

Our Almaden Times readers can read the entire California Supreme Court case for themselves by going online and entering "California Supreme Court" in their favorite search engine. Then enter the case name Sheehan v. The San Francisco 49ers, Ltd. and the number of the case, S155742. By going to the Supreme Court website directly, you will bypass a flood of advertising. Also, a very nice feature of the Supreme Court web site is that you can sign up for automatic email notification of future developments in the case. I did just that and it has come in very handy. Of course, the website is supported by us taxpayers, so there is no fee and we might as well make use of it.

So, that's about it, Hank. And once again, I will try to keep you updated on this case as developments occur.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.