San Jose Attorney - Almaden Times Articles

Judging Credibility Of Witnesses Part Two

This week’s question:

 

I was pleased to see you answer the question that I emailed in regarding “He said” vs. “She said”.  Very interesting.  You said that part two of the reply would be in two weeks.  Can you please do that? 

 

/s/Teresa T.

Almaden Valley

 

Dear Teresa:

 

Thank you for following up on that topic, Teresa.  This is a very interesting topic.  And for those who missed this column two weeks ago, it dealt with credibility of witnesses as it relates to determining who is telling the truth.

 

There is a good deal of information on this topic when it comes to witnesses in court.  Frequently, a trial judge will read a standard jury instruction to the jury about witnesses and how to view witness testimony.

 

Often the trial judge will read an approved jury instruction to the jury as found in Judicial Council of California Civil Jury Instructions (“CACI” for short) #107.  It is entitled simply “Witnesses”.  It is quoted as follows:

 

“WITNESSES.  A witness is a person who has knowledge related to this case.  You will have to decide whether you believe each witness and how important each witness’s testimony is to the case.  You may believe all, part, or none of a witness’s testimony.

 

“In deciding whether to believe a witness’s testimony, you may consider, among other factors, the following:

 

(a) How well did the witness see, hear, or otherwise sense the things that he or she described in court?

(b) How well did the witness remember and describe what happened?

(c) How did the witness look, act, and speak while testifying?

(d) Did the witness have any reason to say something that was not true? Did the witness show any bias or prejudice? Did the witness have a personal relationship with any of the parties involved in the case? Does the witness have a personal stake in how this case is decided?

(e) What was the witness’s attitude toward this case or about giving testimony?

“Sometimes a witness may say something that is not consistent with something else he or she said.  Sometimes different witnesses will give different versions of what happened.  People often forget things or make mistakes in what they remember.  Also, two people may see the same event but remember it differently.  You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

 

“However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.  On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.

 

“Do not make any decision simply because there were more witnesses on one side than on the other.  If you believe it is true, the testimony of a single witness is enough to prove a fact.

 

“You must not be biased against any witness because of his or her race, sex, religion, occupation, sexual orientation, or national origin.

 

And there is a separate jury instruction often read to the jury in civil cases that deals with expert witnesses.  CACI #221 is as follows:

 

“CONFLICTING EXPERT TESTIMONY.  If the expert witnesses disagreed with one another, you should weigh each opinion against the others.  You should examine the reasons given for each opinion and the facts or other matters that each witness relied on.  You may also compare the experts’ qualifications.

 

There you have it, Teresa, guidelines for resolving “He said” vs. “She said”.  I hope this information is helpful for you.

 

/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.

 

 

 

 

Guidelines For Resolving "He Said" Vs. "She Said"

This week’s question:

I have a real problem but I cannot discuss many of the details since the case involves a very good friend of mine and she just might read your reply. But it may come down to my word against my friend’s word. How does a judge or jury determine who is telling the truth? What if it really just comes down to “he said vs. she said”? If I do not have a supporting witness do I lose my case?

/s/Teresa T., Almaden Valley

Dear Teresa—

You may be surprised at how many cases come down to one person’s word against another. And each may be telling the truth from his or her perspective. This is such an important topic that I would like to break up the reply into two articles, one this week and a second one in my next column in two weeks.

Part 1 will be this week and it will focus on the issue of credibility. Part 2 will be in two weeks and it will focus on witnesses in general.

Let’s take the case of whether the traffic light was green or red when one of the vehicles entered the intersection. One person says under oath “red” and the second one says “green”. The judge or jury during the trial may place a lot of value on the witness’s credibility.

How is credibility determined? An important resource is the California Evidence Code, adopted by the California State Legislature. Part of the Evidence Code deals with considerations for evaluating the credibility of witnesses.

Evidence Code §780 provides as follows:

“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement previously made by him that is inconsistent with his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.”

Of course, the male gender reference in the material quoted above applies to the female gender as well.

So, it is safe to say that credibility is very, very important in the court’s search for truth. Sometimes it may seem like that is one of the most important functions of the judge or jury—to determine who is telling the truth.

And, although there may be a few exceptions, often there may be just one witness on any given point that may carry that particular point. In other words, it’s typically not a situation of two witnesses vs. one witness, so the two-witness point of the controversy wins.

In summary, Teresa, you can see that credibility is very important. And this ties in with witness testimony in general, and that will be the topic of Part 2 of this response in two weeks. You emailed in a very good question.

/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

Respect Vs. Aggressive Representation May Be Tough Line To Draw

This week's question: I recently had a case in court that did not turn out very well. I am convinced that it was because my attorney at the time was not very aggressive. He was always so overly respectful that it really resulted in no representation at all. What I would like to know is whether there are written rules that attorneys must follow when it comes to respect compared with aggressive representation.

/s/ Andy A., Almaden Valley 

Dear Andy- You have raised a good question, Andy. Let me see if I can address it properly. From the moment your trial started out in the courtroom, you noticed that the bailiff said in a loud voice "All rise" when the judge came in. This is a very old tradition that is based on respect for the judge and the law. Just where one draws the line between respect and aggressive representation is often a matter of degree.

Your attorney can be very aggressive and do a great job representing you and at the same time be very respectful at all times. And yes, there are many written rules that attorneys must follow when it comes to respect within our system of justice.

One of those rules is California Business and Professions Code Section 6068. It provides in part as follows: "It is the duty of an attorney to do all of the following: (b) To maintain the respect due to the courts of justice and judicial officers." That general duty of respect is almost always a constant theme in our courtrooms. If you stop and think about it, I am sure you would agree that you would not like someone judging your case if you upset him or her. This just would not make sense. It might be somewhat like pouring gasoline on a fire.

So, your attorney walks a tightrope sometimes between respect on the one hand and aggressive representation on the other hand. And this respect aspect carries into other areas as well. For example, your attorney cannot knowingly file any court documents that contain false statements or allegations. And of course your attorney cannot file any forged documents with the court.

Business and Professions Code Section 6068(f) states that it is the duty of an attorney to advance no fact that is prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged. If your attorney would make an unsupported assertion in court that the judge was biased toward you, it could result in contempt proceedings being brought. And an attorney may breach his or her duty by making insulting remarks about judges in briefs filed with the court of appeal.

I do not think I would try to argue that the judge acted "unlawfully" or "illegally" or had become a "party to the theft" of the client's property. More examples of improper behavior could be given, but much of it comes down to just plain old fashioned respect.

If you would want to read California Business and Professions Code Section 6068 for yourself feel free to do so by entering that information in your favorite search engine box and entering "go". It should be on your computer monitor is less than a second. And as I always add, you will want to discuss with your attorney how this particular provision may or may not apply to your specific 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.

Filing Too Many Suits May Make You A "Vexatious" Litigant

This week's question: I have a neighbor who is always bragging about the number of lawsuits he has filed and prosecuted against others. My problem is that I am sure he will be suing me next-over absolutely nothing. Is there anything I can do about this? What if he files suit against me and I am totally innocent of any wrongdoing? Do I have any recourse?

/s/ Billy B., Almaden Valley

Dear Billy- What you can do may depend on whether your neighbor can be classified as a "vexatious litigant" under the California Code of Civil Procedure. There are certain restrictions that apply to a person who abuses the courts of this state. These restrictions are contained in the Section 391 area of the Code of Civil Procedure.

A "vexatious litigant" means a person who does any of the following:

1. Within the preceding seven-year period has commenced at least five litigations other than a small claims court claim that have been finally determined adversely to the person or unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;

2. After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona (by himself or herself, without an attorney), either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

If a person is classified as a "vexatious litigant," the other party to the suit has a right to file a motion for the posting of security, such as a bond to protect the innocent party from incurring damages. At the hearing on such a motion for the posting of security, if the court determines that the plaintiff is a "vexatious litigant" and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix. When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered.

Also, the court may enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court. The clerk of the court shall provide the State of California Judicial Council a copy of any prefiling orders and the Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of the state of California.

Many of the above provisions were discussed in a recent case entitled "Yuki Kobayashi v. The Superior Court of Orange County, Douglas Han, Real party in Interest. The case was decided June 30, 2009. You can read the case by entering the case name in your favorite search engine. As always, you will want to consult with your own attorney to see how the case may or may not apply to your own particular 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.

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.

Cranky Judges May Be Held To Account

This week's question: I was in a court trial a few months ago and the judge was just terrible. I mean he was rude, arrogant, and downright nasty to my attorney. I complained to my attorney repeatedly at the time but she said there was nothing she could do. She didn't want to make the judge more upset since the judge was judging our case at the time. Is there any recourse in this situation?

/s/Justin J., Almaden Valley

Dear Justin: There is something you can do, but first, a few introductory comments. It seems to me that your trial lawyer did the right thing by not complaining to the judge during your trial. She obviously thought that this could inflame the judge and you don't want the judge upset who is hearing your case. Most of us try to bend over backwards to be courteous and respectful to the judge at all times, even when it is difficult.

Having said that, there is something that you can do and maybe should do in view of that behavior by the trial judge. And that is to file a complaint with the State of California Commission on Judicial Performance. Perhaps that particular judge did not exhibit the proper "temperament."

I can honestly say that in all my years of practice that I have been favorably impressed by our judges and have very rarely seen instances of improper temperament. Almost all of our judges are courteous, respectful, and fair in their conduct of all proceedings that come before them. I am sure being a judge is not an easy job, but sometimes things happen that shouldn't happen.

Back to the Commission on Judicial Performance, or "CJP" for short in legal jargon. The CJP was established by legislative constitutional amendment in the November, 1960 election. The provisions establishing the Commission were part of a package of judicial administration reforms, at the time heralded as "real protection against incompetency, misconduct or non-performance of duty on the Bench." California was the first state to set up a permanent body to address judicial misconduct. The Commission is responsible for the investigation of complaints of judicial misconduct and incapacity and for the discipline of judges, former judges, court commissioners and referees.

The Commission's mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system. An effective method of disciplining judges who engage in misconduct is essential to the functioning of our judicial system. Commission proceedings provide a fair and appropriate mechanism to preserve the integrity of the judicial process. Anyone may submit a complaint to the Commission.

Of course, if your only complaint is that you lost your case, it is doubtful that you would have grounds for a complaint of this nature. If your only complaint is that you lost at trial, you may want to look into an appeal if there are grounds for an appeal and it is not too late.

Let us assume that you have proper grounds for a complaint. You would first file a complaint with the Commission on Judicial Performance at 455 Golden Gate Avenue, Suite 14400, San Francisco, CA 94102. You will want to include the following information:

    * The court in which the judge sits

    * The names and telephone numbers of any witnesses to the events described

    * The date or dates on which the conduct occurred

    * The type of court case involved and your relationship to the case.

After an investigation, the Commission will make a decision. Judicial misconduct usually involves conduct in conflict with the standards set forth in the Code of Judicial Ethics. Some examples of judicial misconduct are rude or abusive demeanor, conflict of interest, abuse of the contempt power, communicating improperly with only one side to a proceeding, delay in decision-making, and commenting on a pending case. If the Commission finds that an offense has been committed, various levels of discipline may be imposed. Discipline includes private admonishment, public admonishment, public reproval, public censure, and even removal from the bench as a judge. From time to time we hear or see in the media about judges who have gone astray.

You can obtain a great deal of additional information by visiting the web site of the Commission on Judicial Performance. Just enter: www.cjp.ca.gov/. Topics include how to file a complaint, pending cases, case statistics, and FAQ's. Of course, this web site is publicly supported and part of our State of California government.

Consumers do have rights, Justin. And one of those rights is to register a complaint for that kind of behavior. Maybe your complaint will make it better for others in that courtroom in the future.

/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.

"Runners And Cappers" Just Might Get The Attorney In Trouble

THIS WEEK'S QUESTION: Several weeks ago my husband was seriously injured in an automobile accident. We have had several thousands of dollars in medical expenses already. Last week we had a young man come to our door who tried to sign up my husband as a client for a law firm here in San Jose. Evidently, the police accident report listed our home address. He said that he was an "investigator", but I felt uneasy about the situation. Is this legal? (I told him "no thanks!")

/s/ Rachael R., Almaden Valley

Dear Rachael: I can see why you might have felt uneasy about that particular situation, Rachael. General advertising for legal services may be one thing but outright solicitation might be another. And another problem may be when one serves as a "runner" or "capper". The State Bar Act makes it unlawful for "any person", i.e., a lawyer or nonlawyer, "to act as a runner or capper" for an attorney or "to solicit any business" for an attorney in any public place or upon private property.

So, you ask just what is a "runner" or a "capper". These terms refer to anyone "acting for consideration. . . as an agent" of an attorney or law firm in the solicitation or procurement of business for the attorney or law firm. And the rule applies to whether the attorney or firm practices in California or in another state. An "agent" is one who represents another in dealing with one or more third persons.

According to California Business and Professions Code §6152(a)(2), it is unlawful for an attorney (or anyone else) to solicit another person to act as a runner or capper in violation of the law. And any contract obtained through a runner or capper is no good. Business and Professions Code §6154(a) provides that any contract for professional services secured by a lawyer or law firm through the services of a runner or capper is void. Not only may the runner or capper be in difficulty with the law but the attorney as well may be in trouble with the State Bar. (The State Bar is the licensing agency that grants us attorneys the "privilege" to practice law in this state.)

In addition to facing criminal penalties, a lawyer may be disciplined for using runners and cappers to solicit business improperly. It may be alright to recommend professional employment in many situations, of course, but not in the context of the employment of runners and cappers. California Penal Code §646.5 provides that "A member [of the State Bar] shall not knowingly assist in, solicit or induce any violation. . . of the State Bar Act". Also, committing an act involving moral turpitude, dishonesty or corruption, such as acting as an aider and abettor, is ground for attorney disbarment or suspension. And this is regardless of whether the act is a felony or misdemeanor and whether or not it was performed while acting as an attorney.

The penalty for a violation of the law concerning the prohibition of solicitation (California Business & Professions Code §6152) is very clear: "Any person, firm, partnership, association or corporation violating subdivision (a) of §6152 is punishable, upon a first conviction, by imprisonment in a county jail for not more than one year or by a fine not exceeding $15,000, or by both that imprisonment and fine." And "upon a second or subsequent conviction, a person, firm, partnership, association, or corporation is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding $15,000, or by both that imprisonment and fine."

Any consumer can read these California Business and Professions Code sections for himself or herself by going online and entering the code sections mentioned above in the search box of that particular search engine. The legal provisions should be up on the screen in about a half a second. Also, if a consumer is aware of any runner or capper, it would be good to contact either the State Bar of California or the consumer's local police department. As was stated above, general advertising is one thing but solicitation through runners and cappers is quite another thing.

/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.

Agreements Need To Be Free And Voluntary Acts, Not Forced

This week's question: Several months ago, my wife had me sign a marital settlement agreement and now I am not so sure that I did the right thing. I really believe she forced me to sign it even before I was allowed to see my own attorney. Are there any rules that apply in this situation?

/s/George G.

Almaden Valley Dear George- You bet there are rules that apply in your situation and in other situations like it. In short, agreements must be free and voluntary acts and not the product of duress and undue influence. A 2006 case is a good example to read when it comes to duress and undue influence. The case is entitled In re Marriage of Balcof, and it arose in Orange County. In the Balcof case, Ralph and Kathleen were married in 1988. They had two children, daughter Kelsey born in 1990 and son Andrew born in 1992. In October, 1999, Ralph and Kathleen signed a writing concerning Ralph's separate property $2,000,000 residence in Laguna Beach and a 20% portion of the stock in Ralph's separate property corporation. The October, 1999, writing was at issue in the case. Ralph contended that Kathleen forced him to sign the document under duress and undue influence. Kathleen contended that it was a valid agreement and transmuted or changed the character of some of Ralph's separate property into Kathleen's property.

Facts recited by the Court of Appeal in the Court decision were interesting. A short time before their marriage, Ralph and Kathleen had signed a prenuptial agreement that confirmed Ralph's separate property holdings of several million dollars. Kathleen's assets were "minimal." The prenuptial agreement evidently was not an issue in this case. Marital disharmony erupted and differences arose, shall we say. In October, 1999, the parties were together at an inn, at which time Kathleen had Ralph write and sign this "agreement": "I, Ralph Balcof Deed over all Interest in our house at 770 Pelican Dr.-Laguna Beach-also 20% interest (stock) in Bolcof Plastic Materials. This will be legal by Dec. 1, 1999. P.S. I will pay $1000 a day penalty if this is not done by Dec. 1." Both Kathleen and Ralph then signed the "agreement".

However, the Court of Appeal found that the agreement was not a free and voluntary act of Ralph since Kathleen had repeatedly threatened Ralph with divorce and the obstruction of his relationship with their children if he did not prepare and sign the writing. Also, Kathleen repeatedly harangued and berated Ralph during the marriage in an effort to force him to modify the parties' prenuptial agreement to provide more security for her. Kathleen also, according to the Court of Appeal, physically struck Ralph on several occasions, and screamed at Ralph for at least 45 minutes immediately preceding his writing and signing the October 1999 document, which screaming included threats of divorce and obstructing Ralph's relationship with the minor children if he did not make and sign the "agreement". It was also noted that Kathleen dictated word-for-word what Ralph wrote in the document.

Ralph testified that he did not understand the legal effect of what he was forced to write down and of course he did not have the opportunity to consult with his attorney before the episode in the hotel room. The Court of Appeal cited Family Code §721, subdivision (b) to the effect that husbands and wives "are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. . . If one spouse secures an advantage from an interspousal transaction, a statutory presumption arises under §721 that the advantaged spouse exercised undue influence and the transaction will be set aside."

The trial court's finding was upheld by the Court of Appeal when it held that Kathleen exerted undue influence and duress on Ralph in order to obtain the October 1999 writing in direct response to her on-the-spot demands and latest tirade. You can read the In re Marriage of Balcof case for yourself by going online to your favorite search engine. Enter the name of the case or the citation, 141 Cal.App.4th 1509, 47 Cal.Rptr.3rd 183. I personally like the California Court of Appeal web site because it's free of incessant advertising. As always, you will want to read the case in consultation with your own attorney to see how the case may or may not apply to you in your particular 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.

A Contract Clause Requiring Mediation Generally Means What It Says

This week's question: My husband and I signed a contract to purchase a home here in the Almaden Valley. It's the home our dreams. However, the sellers changed their mind because of the husband's serious health issues, or so they claimed. We might need to file suit for breach of contract, but I checked our contract, called a "deposit receipt", and there is a mediation clause that both sides initialed. Must we really go through mediation first? Isn't that a grand waste of time and money? Can't we just file our suit and get it over with? What is mediation, anyway?

/s/Susan S., Almaden Valley

Dear Susan- Interesting question, Susan. And I think the answer is fairly clear, at least in a general sense. In a recent case dated May 28, 2008, from the Court of Appeal, Third Appellate District, entitled Jay Lange v. Roxanne Schilling, the Court held that yes, a mediation clause means what it says and the parties to such a contract must proceed with mediation before the Plaintiff files a lawsuit.

In that case, arising out of Calaveras county, the parties had signed a standard California residential property purchase agreement that contained a mediation clause. The mediation clause stated that: "Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action." The mediation clause in the Lange-Schilling contract went on to state: "If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action."

Plaintiff Lange filed his complaint against defendant Schilling after a dispute arose about claimed misrepresentations about a lake level related to the property in question. The trial court found that Plaintiff was entitled to about $80,000 in attorney's fees against the defendant in addition to damages of only $13,475. However, the facts of the Lange v. Schilling case were clear to the effect that Plaintiff did not attempt mediation before commencing the litigation. The Defendant argued in the Court of Appeal that because Plaintiff filed his lawsuit before offering mediation there was no basis to award attorney's fees. And the Court of Appeal agreed with Defendant's argument. The Court of Appeal reversed the trial Court, denied Plaintiff's application for attorney's fees, and stated that there is a strong public policy in favor of mediation.

In the words of the Court of Appeal: "In mediation, a neutral third party analyzes the strengths and weaknesses of each party's case, works through the economics of litigation with the parties, and otherwise assists in attempting to reach a compromise resolution of the dispute." "The public policy of promoting mediation as a preferable alternative to judicial proceedings is served by requiring the party commencing litigation to seek mediation as a condition precedent to the recovery of attorney fees. . . Had the parties resorted to mediation, their dispute may have been resolved in a much less expensive and time-consuming manner." So, generally speaking, when a contract provides for mandatory mediation before filing suit, it means what it says.

Then the question arises as to what is mediation, anyway. Mediation is a relatively informal way to try to resolve disputes. It is often a simple meeting in the mediator's office. It is voluntary in nature in the sense that the mediator tries to help the parties themselves come to an agreement to resolve the dispute. Typically, the parties may have their own attorney present if they wish. Usually the mediator conducts "shuttle diplomacy", going from one party with their attorney in one room to the other party with their attorney in a second room and back and forth again. This may go on for hours or even days in a complicated case. Once again, the mediation may result in a voluntary settlement or agreement. However, the mediator cannot impose a decision on the parties like a judge can in a court trial.

Mediation is quite different from arbitration which is a good topic for another day. You can read the Jay Lange v. Roxanne Schilling suit in the Court of Appeal for your self by going to your favorite search engine and entering the case name. Sometimes two or three options are available to select and read the case for yourself. I personally favor the Court of Appeal web site so I can avoid all the advertising and entry on yet another junk email list. And as I always add, please read the case in consultation with your own attorney to see how the case may or may not apply in your particular situation. Best wishes for a successful mediation, Susan. I hope it all works out to your satisfaction.

/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.