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

Some Information About The State Bar That You May Not Know

This week's question: In your column in the Almaden Times, you mention the State Bar of California from time to time. Is this kind of a social club that some attorneys belong to? What does it do? Is it optional to be a member? How can I get some more information about it?

/s/Lucy L., Almaden Valley

Dear Lucy- You have emailed in some great questions, Lucy. Let me try to address them one by one. No, it is not kind of a social club that some attorneys belong to. It is a very important organization that helps protect consumers in a number of ways.

The State Bar was created by the California state legislature in 1927, 82 years ago. It is a public corporation within the judicial branch of our state government. All State Bar members are officers of the court. State bar organizations vary from state to state. In California, membership is mandatory. If I want to practice law in the state of California, I must be a member. That means I must pay my dues annually and comply with many rules and regulations.

Being a member of the State Bar of California affords attorneys the right and privilege of practicing law in this state. It is an integrated or unified network of functions and services-many of which are mandated by state law. In this way, the public is afforded some protection and attorneys are assisted in meeting their professional obligations.

More than one-half of the states in the United States have unified bars. As of June, 2009, there were 222,000 members of the State Bar of California. Of that number, nearly 165,000 members actively practice law in California. The other members are inactive. In my particular case, I am very pleased to have been an active member since 1970. In California, you must have a license to practice law. This license is issued only after certain educational requirements are met and the applicant has passed a rigorous three-day examination.

On occasion, we read about strange cases where someone might try to practice law without a license. This is indeed a serious offense and the law violator may face severe consequences. The State Bar is governed by a 23-member Board of Governors, six of whom are "public" or non-lawyer members. The bar's programs are financed primarily by fees paid by attorneys and applicants to practice law.

In 2009, the bar's general fund budget was more than $62 million. Of that budget, approximately 80 percent was designated for attorney disciplinary activities. If consumers have a complaint against an attorney, the consumer can call a toll free number for help: 1-800-843-9053. All charges of attorney misconduct are processed by a trained complaint analyst who takes appropriate action on the complaint.

The State Bar of California is the only state bar in the nation with independent professional judges dedicated to ruling on attorney discipline cases. In serious cases, the license to practice law can be temporarily suspended immediately.

The client security fund is another important part of the State Bar. Part of my annual state bar dues is designated for this fund. If your lawyer is found guilty of theft of client funds, the client security fund may cover the loss, up to $50,000. (This limit may be increased to $100,000 in the future.)

The State Bar also does a lot of other good work. For example, evaluating judicial candidates is important, as well as publishing consumer pamphlets, maintaining standards of the legal profession, and ensuring the competent delivery of legal services. Also, as attorneys, we are required to meet continuing legal education requirements every three years. The State Bar administers that program.

Consumers can acquire a great deal of information about the State Bar of California by visiting the bar's web site at: www.calbar.ca.gov. It is an excellent source of information.

/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.

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.

"Polst" Comes To California To Assist Consumers

This week's question: I have been reading your column for several years and it looks like it may be time for another one based on new laws coming into play for us consumers. Have you seen anything of interest for 2009?

/s/Brenda B., Almaden Valley

Dear Brenda- First of all, thank you for your interest in this column. That is appreciated and not taken for granted. As a matter of fact, I have seen several new laws of interest to California consumers that take effect with the new year. Unfortunately, space in this column does not allow for a full discussion of very many. So let me focus on just one new law for 2009 in the field of estate planning, living trusts, and Advance Health Care Directives.

On August 4, 2008, California Governor Arnold Schwarzenegger signed Assembly Bill (A.B.) 3000 into law. This bill amends the California Probate Code to add a recognition of Physician Orders for Life-Sustaining Treatment (POLST) forms to the current recognition of "do not resuscitate" (DNR) forms. In short, the Physician Orders for Life-Sustaining Treatment (POLST) program is designed to improve the quality of care people receive at the end of life. It is based on effective communication of patient wishes, documentation of medical orders on a brightly colored form and a promise by health care professionals to honor these wishes.

This new law does not require the use of a POLST form, but describes the requirements if one is used. According to the California Coalition for Compassionate Care web site, the POLST form is a physician's order that outlines a plan of care reflecting the patient's wishes concerning care at life's end. The POLST form is voluntary and is intended to: * Help the doctor and the patient discuss and develop plans to reflect the patient's wishes * Assist physicians, nurses, health care facilities, and emergency personnel in honoring a person's wishes for life-sustaining treatment.

You can access the California Coalition for Compassionate Care web site by going to: www.finalchoices.org . There you or your doctor can download the 2009 California POLST form and even learn how to copy and print the form on 65# cover pulsar pink paper stock. Wausau Pulsar Pink card stock is available online and at some office supply stores. It is important to use this specific color of paper so that the form can be photocopied and faxed. When you download the form, you can see that it is indeed entitled "Physician Orders for Life-Sustaining Treatment (POLST)".

There are four main areas. Area "A" deals with cardiopulmonary resuscitation (CPR). One can check either "attempt CPR" or "do not attempt resuscitation/DNR (allow natural death). Area "B" is entitled "medical interventions" and you can check one of three boxes. One box is for "comfort measures only". The second box to check is "limited additional interventions", and the third box is "full treatment". Area "C" on the "POLST" form is "artificially administered nutrition" where you can make one of three choices. And then area "D" on the form is for signatures and a summary of the medical condition.

The POLST form directs a health care provider as to the resuscitative and life-sustaining measures selected by a patient concerning the end of life, and requires health care providers to treat individuals in accordance with their POLST across all health care settings, beginning on January 1, 2009. The POLST form is provided by the health care provider and is based on the patient's wishes and medical indications. It must be signed by a physician and by either the patient, only if competent, or the patient's legally recognized health care decision maker, if the patient lacks capacity or the patient has designated an Advance Health Care Directive that gives the decision maker authority effective immediately. One of the advantages of the POLST form is that it gives more detailed instructions compared with an Advance Health Care Directive or in a typical DNR order. Can you revoke your POLST at any time? Yes you can, assuming you have the legal capacity to do so.

/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.

Your Consent To A Medical Procedure Needs To Be Informed And Real

This week's question:

Last month I had a very routine cataract procedure done on one of my eyes. Before the ophthalmologist started, she went over and over all the things that could go wrong. Even blindness and death. And then her nurse went over the same dire warnings, and had me sign a form on the same topics. Was all that really necessary? It sounded like they were just trying to scare me into not having it done at all.

/s/Harold H.

Almaden Valley

Dear Harold:

I agree, Harold, that some of those comments sound like warnings so much so that you think they are just trying to scare you into not having a procedure done.

However, the information is definitely needed so you as a patient and consumer can make an "informed consent" about the procedure coming up and so that the physician has performed her or his duty to relay the information to you.

Just what is "informed consent" and why is it important? One of the authoritative sources on the topic is the material that a trial judge may read to a jury during a medical negligence, i.e., "malpractice" trial. This information is contained in jury instructions that jurors need to listen to and then follow in their deliberations in the jury room during the process of reaching a verdict.

Jury instructions are published in a book of many different jury instructions published by the Judicial Council of the State of California. The book is entitled "California Civil Jury Instructions" or "CACI" for short.

CACI #532 pertains to a definition of informed consent in a medical negligence (or "malpractice") context. It provides as follows:

"A patient's consent to a medical procedure must be "informed." A patient gives an "informed consent" only after the [medical practitioner] has fully explained the proposed treatment or procedure."

And CACI #532 goes on to state:

"A [medical practitioner] must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand and give the patient as much information as he or she needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A [medical practitioner] is not required to explain minor risks that are not likely to occur."

Not being an ophthalmologist, I cannot say whether blindness or death are some of the possible outcomes of cataract surgery, but I wouldn't be surprised if that were the case. So, chances are very good that your doctor was doing her duty as a benefit to you and your care by helping to enable you to make an informed decision.

If the physician or other medical practitioner fails to obtain your informed consent, then CACI # 533 may come into play. It states:

"Failure to obtain informed consent-essential factual elements. Plaintiff claims that the Defendant was negligent because he or she performed a medical procedure on the Plaintiff without first obtaining Plaintiff's informed consent. To establish this claim, Plaintiff must prove all of the following:

* That the Defendant performed a medical procedure on Plaintiff;

* That Plaintiff did not give his or her informed consent for the medical procedure;

* That a reasonable person in Plaintiff's position would not have agreed to the medical procedure if he or she had been fully informed of the results, risks of and alternatives to the procedure; and

* That Plaintiff was harmed by a result or risk that the Defendant should have explained before the medical procedure was performed.

As in most rules, there are certain exceptions that may apply.

For example, the doctor may not need to comply with the informed consent rules in certain cases of emergency, if in certain cases where the patient may become so emotionally upset so as to not being able to consider the risks or if the patient waived being told of the risks. Other exceptions may also apply in any given situation.

You did not say, Harold, if your cataract surgery was a success. Let's hope so and that you are now seeing perfectly with both eyes.

/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 Pre-Vacation Legal Checklist May Be Helpful

This week's question:

Our family is flying to London in August for a much-needed vacation. We will be taking our children with us. I was wondering if you could give us a pre-vacation legal check list. I have searched online and cannot seem to find a thing.

/s/Valerie V.

Almaden Valley

Dear Valerie-

Great question, Valerie. I hope that all of our Almaden readers give some thought to a legal checklist before they leave on vacation.

Here are some things you might keep in mind, since you never know what might happen. The various ideas mentioned below are not necessarily in any chronological order of importance.

1. Make sure your living trust is up to date. If you live in Almaden and own your own home, chances are excellent that you would benefit from a living trust. Check it out with your own attorney.

If you have a living trust already, good job. Then make sure it is up to date. If you need to have one done, along with several other documents, allow sufficient time for all the paperwork to be done and the transfers to the trust completed. I would think that four weeks would usually be needed to do everything right. If you do not have that much time (as some of us tend to procrastinate on these projects a bit), don't despair. Get done what you can get done. Right away.

2. Make sure your wills are up date. Most of need a will even if we have a trust. If they are out of date, this would be a good time to have them updated. Make sure your Alternate Executor is properly identified and that he or she knows where to find the original wills and a comprehensive listing of all of your assets and liabilities.

3. Be sure to check all of your beneficiary designations. This is often easily overlooked when you are busy getting ready for a trip. Check your IRA, 401K, life insurance, and other beneficiary designations. Including group life insurance. If that airplane goes down, where does the money go? Beneficiary designations are so critical since they usually take priority over the living trust or will. In other words, beneficiary designations in such documents usually take priority over the terms of a trust or will.

4. Check your Advance Health Care Directive. I saw in the news last week another story about another family fight about someone on life support. Such stories should be non-existent if we all have Advance Health Care Directives.

5. Check your Durable Power of Attorney for Asset Management. If you lose your legal capacity for some reason, you could well benefit from an Agent exercising powers contained in a Durable Power of Attorney for Asset Management. This document might alleviate the need for a costly, time consuming, and public conservatorship court proceeding.

6. Make sure the title to your assets is correct. If your house is held in joint tenancy, you might want to see your own attorney as to how joint tenancy with right of survivorship works if the airplane goes down or some other catastrophe occurs. Exactly how we hold title to our various assets is so very, very important.

7. Make sure your Successor Trustee and/or Executor knows where important papers and assets are located. This sounds so simple but it is obviously important if the need arises. If you are careless when it comes to things like this chances are it will not help you one bit and could be damaging. While it's on your mind, get things organized.

8. If you have minor children, you may well need a Nomination of Guardian. If dad and mom are gone and if they leave minor children surviving, the court will of course review carefully any Nomination of Guardian the parents have properly signed. What is more important than this I do not know.

9. Have your wishes concerning burial and funeral arrangements in writing. This also sounds simple, but you would be surprised at how many people just do not want to talk about this. Talk it over with your family and loved ones. And then put it in writing and update that writing as needed.

10. Turn off the water. Right about now you may say to yourself, "Huh?" This may not be a legal point of any kind, but it may be very important.

If you take that vacation to London you may be gone for several weeks. If your plumbing springs a leak while you are gone it could result in substantial damages to your home. It happened to some good friends of ours.

You might give some thought to either turning the water off or having someone check your property each day while you are gone. And it may result in a legal problem after all since there may not be any homeowner's insurance for a slow water leakage problem. In other words, a "leakage-seepage" exclusion in the policy may control.

So, there you have a pre-vacation legal checklist, Valerie. I hope that some of this information may be of benefit to you. Have a good trip!!

/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.

Just What Is A "Fiduciary Relationship" Anyway And Why Is It Important?

This week's question:

Every once in a while I come across the term "fiduciary duty" or "fiduciary relationship". This seems to apply to several different situations. What does "fiduciary" mean? Does it really apply to different situations or is this just my imagination?

/s/Jennifer J.

Almaden Valley

Dear Jennifer:

First of all, the easy part. No, it definitely not just your imagination. The term "fiduciary duty" or "fiduciary relationship" arises in a broad variety of situations and legal relationships. You will recognize many of those situations and see right away why they are called "fiduciary relationships".

For example, let's assume you are the Administrator of your father or mother's estate. Instead of managing the estate account properly, you take the money to Reno and gamble it away, hoping to double the account for yourself as well as your brother and sister. Stand by for a huge law suit for breach of fiduciary duty.

Or let's assume that as Administrator of that estate you found an account that you "forgot" to report to the Court and "forgot" to mention to your brother and sister. Instead, you put the money in your pocket. Once again, stand by for a suit for breach of fiduciary duty.

My copy of Black's Law Dictionary, Seventh Edition, a well regarded treatise in the field of law, has several excellent definitions in this area dealing with a "fiduciary".

Black's defines "fiduciary" as "one who owes to another the duties of good faith, trust, confidence, and candor. For example, the corporate officer is a fiduciary to the shareholders."

A fiduciary is one who must exercise a high standard of care in managing another's money or property. An example of that would be when a beneficiary of a trust sues the fiduciary for investing in speculative securities and wasting all of the trust fund.

A "fiduciary relationship" is defined by Black's Law Dictionary as "a relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client."

Fiduciary relationships usually arise in one of four situations:

(1) When one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first;

(2) When one person assumes control and responsibility over another;

(3) When one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or

(4) When there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.

"Fiduciary duty" is defined by Black's as "a duty of utmost good faith, trust, confidence, and candor owed by a fiduciary, such as a lawyer or corporate officer, to the beneficiary, such as a lawyer's client or a shareholder. Also, "a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person, such as the duty that one partner owes to another."

The California Family Code in §721 provides for general rules governing fiduciary relationships between a husband and a wife, the same fiduciary rules that control the actions of persons occupying confidential relations with each other. "This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other."

If, for example, an attorney would breach his or her fiduciary duty to the client, the client could have grounds for a suit called "breach of fiduciary duty".

If that would arise, the judge might instruct the jury as follows, based upon California Jury Instructions CACI #605:

"An attorney has a fiduciary duty to the client. A fiduciary duty is the duty of good faith and undivided loyalty. The Plaintiff claims that Defendant Attorney harmed the Plaintiff because the Attorney breached his/her fiduciary duty of confidentiality [for example]. To establish this claim, Plaintiff must prove all of the following:

* That the Attorney breached the fiduciary duty of confidentiality [for example];

* That the Plaintiff was harmed; and

* That the Attorney's conduct was a substantial factor in causing Plaintiff's harm.

So, you can see, Jennifer that the word "fiduciary" is a

very important concept, and fiduciaries must act with utmost care and the highest of standards. And these principles do in fact apply in a large variety of situations.

/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.