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Have you checked the rules of your jurisdiction lately?

Hall of Justice San Diego

DIVISION II CIVIL Rule 2.1.5.

The California Rules of Court say that a plaintiff has 60 days to serve a defendant after a lawsuit is filed. What happens if the plaintiff doesn’t serve the defendant within 60 days?

As you know, in early 2012, if you could not serve within 60 days, the San Diego County Superior Court requested that a Certificate of Progress form be filed stating the reasons why service had not been effected on all parties and what was being done to effect service.

Now, in 2013, the ubiquitous Certificate of Progress or inability to respond is no longer required.  Instead, the Court sets the Case Management Conference 5 to 6 months out of the filing.  In the interim, if your attempt to serve fails, typically, you send a pleading to the judge.

How to prepare for the Case Management Conference:

  1. File a Case Management Statement
  2. Meet and Talk
  3. Go to the Conference: both Plaintiff and Defendant or their lawyers must attend; otherwise, the Court will decide against the Plaintiff without the ability to change the decision at a later date.

At this time, whether this information be common knowledge or not, may this missive be informative; or, just a simple reminder.

How do you like this approach vs. the Certificate of Progress?  Please click on comments and share your thoughts.  Thank you.

 

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Why create a courtroom visual presentation?

In the courtroom and generally, the listener determines the meaning of communications. Because thinking includes a visual component, imprecise words encourage jurors to conjure up their own images of the facts.   Of course, such images are based on what they think they have heard.  Notes on JuriesFor all jurors to view the case in the same way as the lawyer does, and obtain a verdict, it is understood that a minimum of nine jurors must have the same mental image.

Revealing statistics:

→Lawyers are fact oriented; juries are perception oriented.

→Studies reveal that jurors are influenced primarily by what they see and secondarily by what they hear. Courtroom presentation medical

The right picture, diagram or icon is often the key to influencing a juror’s thinking.

What steps do lawyers take to communicate effectively?

  • Step 1: Know the facts and details of the case.
  • Step 2: Decide what the focus should be.

To identify and consider how to work with jury bias is imperative.

→Jurors enter the courtroom with an anti-plaintiff bias.

→They have preconceived ideas about how the system works, who should be responsible, and ultimately, who will benefit from trials.

→During voir dire, a lawyer must eliminate potential jurors who have obvious biases that will prevent them from seeing the issues clearly.

→During the trial, a lawyer must work effectively with the biases inherent in the belief structures of the members of the trial panel.

  • Step 3: Decide how to have the jury focus on the details by showing them visual images that illustrate your conclusions.

To overcome jury bias with properly designed relevant graphics

Good design, layout, and color choices will elucidate your story which will lend credibility to the jury.

Properly designed relevant graphics will help you and the jury stay focused on the desired details.

Utilizing the appropriate media will influence the jurors’ opinions.

Is it possible to take advantage of Jury biases?

  • Trials are stories; if jurors don’t interpret the facts clearly, they will visualize their own images.

→By introducing a clear picture that illustrates “your story”, you will enhance understanding and eliminate the tendency for jurors to create their individual stories.Legal Repro in Court Room

→A photograph may show how or where something happened, but some visuals can work against you if jurors’ biases are triggered.  For example, a photo with too many conflicting elements might be confusing and might mislead a juror; however, a graphic rendering of the same image without any extraneous elements, will help the jury focus on what you deem relevant.

→Photographs and maps can help orient the jury to where the case took place and can give jurors a sense of perspective.  Photographs, however, cannot always tell the entire story.  Sometimes, a simplified rendering of the maps and structures are necessary to pull your photographs and maps together and complete the lawyer’s picture, i.e. “your picture” of the case.

  • Jurors have expectations about the consequences of actions and behaviors.

→They tend to compare how they would act or react to the way the parties in your case have acted.

→They have the benefit of hindsight in determining what could have changed the outcome.

→Jurors consider what a reasonable person would do in a given situation and what a reasonable person would expect as a result.

→If jurors can be shown that the defendant’s actions were unreasonable or that, had he acted differently, the outcome would have changed; then, the jurors will favor the plaintiff.

  • It is important to determine when, in time, to start telling the plaintiff’s story.

The sequence of events must first, emphasize the defendant’s bad choices clearly and succinctly.

What is erroneous attribution?

How we see others depends on the shades we are wearing.  The shades we choose to wear depend on our mood, memories, experiences and thoughts.  In a technologically advanced world, we experience information overload.  At any given time, we interpret process and remember a series of events. When we interact with people, we do not always have the mental energy to actively and consciously process all details about them and their behavior; therefore, we use time and energy-saving shortcuts.  This process of automatically assigning meaning to a person’s actions is called attribution.  Becoming aware of this erroneous process is key.

→Jurors focus on blaming someone. If the focus is on the plaintiff’s actions and the jurors think “If only the plaintiff had…;” the result is to blame the plaintiff and thus absolve the defendant.

→By emphasizing the defendant’s inappropriate actions, the jurors start to think what could have been done and the focus winds up on the defendants.

→Jurors ask themselves, “Who was ultimately responsible for what happened to the plaintiff?” Graphically illustrating who, what, when, where and how sheds a light on the decision making process that caused the plaintiff’s injury.

In a nutshell, knowing the facts and details of your case is just the beginning.

Creating an effective courtroom presentation includes:

  • deciding on which details to get the jury focused
  • utilizing jurors’ pre-trial and in-trial biases to your benefit
  • Designing graphics that clearly show “your story” so that the majority of jurors reach the same conclusion.

Please, do share your point of view.  Thank you.  →

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Should good writing, legal or otherwise, be the sole province of lawyers?

When one learns how to dissect any argument, analyze available rules and construct cogent statements one realizes that these attributes are constant in our western society. 

Also, one must have, as the French would say, “l’esprit de synthèse”.  Translated literally, it would be the good capacity for synthesizing information, ideas, etc.  Of course, this wordy expression is far from the snappy little English phrase we are looking for.  So, let’s say it simply means having the ability to see the big picture. 

Food for thought: Emmanuel Berl, journalist, historian and essayist said “I don’t write to say what I think; but, I write to know what I think.” Would this be how one makes the transition from thinking to doing? 

Surely, everyone heard aboutPaul D.Clement Paul Clement’s “phenomenal” brief?  Donald Beaton Verrilli Jr. who had served in the Obama administration as Associate US Deputy Attorney General and now as US Solicitor General is the person who commended the indomitable Paul Clement’s writing to a group of lawyers as an example of how to write an effective brief.  Donald Verrilli and Paul D. Clement

On defending the Affordable Care Act’s individual mandate, Clement was Verrilli Jr.’s dueling partner. 

Let’s have a look at the requisite goals:

  1. Must state the theme of the case
  2. Must be short and specific
  3. Must flow from the opening paragraph through the fact section
  4. Thus, land on the conclusion

The theme: “the individual mandate rests on a claim of federal power that is both unprecedented and unbounded.”

  • You’ll notice that words such as “unprecedented”, unbounded”, “limit” or “limiting” appear numerous times throughout the case; therefore, the theme is omnipresent. 
  • He is a master at exploiting what is called antithesis; for, he has no objections forcing the Court to choose between his view of the case and his opponent’s. 
  • He does not overlook utilizing the power of creative examples.  His short, concise sentences provide balance and draw the reader’s attention.
  • An occasional cliché to mimic the commoner is a brilliant effect.
  • His evocative, provocative references jolt the listless individual out of an unconscious ennui. 
  • His active voice is heard.
  • His colorful, vivid language depicts the provocative images of an artist. 
  • To highlight a point, he does not hesitate to begin a sentence with short, light conjunctions. 
  • He respectfully derides (what an oxymoron!) Congress with the gentle exasperation of an aristocrat. 
  • His straight forward simple ability to shed perfect light on every aspect of the bill, leads the way to the desired effect/conclusion.
  •   He has mastered the art of persuasion. 

Local breaking news:  

The California Western School of Law team submits top brief at ABA event where Emily M. Cunningham and Sara J. Staninger, coached by Deputy Attorney General, Elizabeth M. Carino, submitted the highest scoring legal brief in the regional round of the American Bar Association’s Law Student Division National Appellate Advocacy Competition. 

Here is a question for California Western School of Law alumni: is it safe to say that top Cal Western students can, not only excel; but also, surpass the writing skills of students from Ivy League schools? 

Please do share your point of view.  Thank you. 

 

 

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Electronic access to civil court files

Thanks to Judge Barton, The San Diego Superior Court has made a significant effort to provide electronic access to civil court files for both litigants and attorneys who no longer have to go to the courthouse to review file documents.

Court users can now submit cases electronically to the court and the court files directly with the chosen vendor.  This reduces costs for both the public and the court by eliminating the need for physically transporting documents to court, the need for court staff to manually enter data, and the need to store paper documents.

Mandatory E-Filing involves the following type of cases:

  1. Complex cases
  2. Construction defects

Non-mandatory E-Filing involves the following type of cases:

  1. All civil cases that are neither complex;  nor, construction defects

Please carefully evaluate the pros and cons of E-Filings vs. Traditional Filing.

Traditional Filing: Civil Court Files diagram-civil1

 Pros:  Personalized service such as auditing documents for potential errors, face-to-face interaction with the Courtroom clerk to inquire, identify and receive said documents, ability to nudge clerks to prioritize urgent matters and act as a mediator between Legal Secretaries and the Court Clerk.

Cons: Paper backlog.

E-Filing:

 Pros: No more waiting for a messenger to arrive.

Cons: No personal contact; therefore, no personalized service.  Should there be a potential error and should the document be rejected, it will need to be re-submitted and an additional fee will be incurred.  No one will be available to intervene on your behalf with the clerk.  Once you are integrated into the E-Filing system, you must remain an E-Filer; there is no turning back.

The Superior Court of California, San Diego County has published the following notice regarding upcoming changes to its E-Filing procedures:

ELECTRONIC FILING REQUIREMENTS OF THE SAN DIEGO SUPERIOR COURT

These requirements are issued pursuant to California Rules of Court (“CRC”), rules 2.250 et seq., Code of Civil Procedure section 1010.6, and  San Diego Superior Court  General Order:  In re  Procedures Regarding Electronically Imaged Court Records, Electronic Filing, and Access to Electronic Court Records.

PERMISSIVE  E-FILING

Effective January 7, 2013, (Electronic Filing Soft Launch General Order – January 3, 2013)

registered users of the Provider’s service can initiate new cases in case types as designated by the San Diego Superior Court, and all parties may E-File subsequent pleadings in those cases as well.  Contact the Provider to determine what case types are authorized for E-Filing of this type.

Effective March 4, 2013, (Revised Electronic Filing Requirements of the San Diego Superior Court – January 8, 2013)

documents  may be filed electronically in non-mandated civil cases  in the Central Division where either:  (1) the case is first initiated on or after March 4, 2013; or (2)  the case is already pending as of March 3, 2013 and has been imaged by the court. 

MANDATORY E-FILING

The case types that shall be subject to mandatory E-Filing are: civil class actions, consolidated actions, coordinated actions, and actions that are provisionally complex under CRC 3.400-3.403 (as  set forth in the Civil Cover Sheet,  Judicial Council form CM-010  – but not including construction defect actions). “Complex cases” included in mandatory filing include Antitrust/Trade  Regulation, Mass Tort, Environmental/Toxic Tort, and Securities Litigation cases, as well as insurance coverage claims arising from these case types.  Construction defect cases, currently being filed through the LexisNexis website, will continue to be filed through that system until further notice.

This message is only a reminder and a way to facilitate access to necessary information.

Please click on Leave a comment and share your point of view.

 

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Are LexisNexis and Westlaw potentially in trouble?

I have often wondered how a legal researcher does not become frustrated by citation numbers, legal jargon and numerous publishing practices.  Relying on a law librarian can pave the way; yet, it may not make doing research less time consuming or less complex.  For example, researching historical data requires making a distinction between the law and social conditions; for, the social interpretation of the law is influenced by mores.  Laptop in classic library

To add to the complexity, common, statutory and regulatory law are created by the appropriate body in five different jurisdictional entities such as  federal, state, regional, county and city.  Furthermore, although English is our common language, legal terminology varies from state to state.  Of course, “The Blue Book” is the researcher’s salvation when it comes to reading abbreviations and acronyms in legal citations.  bluebook

On Saturday, February 23rd, The San Diego Paralegal Association presented its annual “Bridging the Gap Above and Beyond” at the Southwestern College in Chula Vista.  I attended a class entitled “Legal Research”.  Had I subscribed to LexisNexis, I would have learnt how to manipulate Lexis for Microsoft Office.  Would it not have been more accurate to label this session LexisNexis Legal Research?  Granted, LexisNexis has a monopoly and so does WestLaw.  Both emphasize the development of relevant case and statute-searching services.  Why did they not initially develop law review material?  Law review material is copyrighted, whereas judicial decisions and statutes are not; legal access to law review material is therefore limited, making it more difficult and potentially more expensive to provide. Today, because of researchers’ demand, Lexis and Westlaw both allow immediate access to law review articles upon publication.  Decades ago, both law professors and practicing lawyers had to wait for the arrival of the printed journal in the mail and then, wait for his or her turn on the internal routing list.  He or she can now read a law review article as soon as it is officially released to the database companies from the convenience of the reader’s desk at any time, from anywhere.  

What do both these giants really sell?  Is it free information?  Is it rather the organization, signal vs. noise separation, and the “online help” of human editors who add value to the “free, public information”?   

Of course, we know that there are other resources providing open access to legal material without the Lexis/West extra value.  How does a cost-conscious, discerning lawyer know when it’s worth paying for otherwise available legal material? Has anyone used their newer competitor Fastcase? 

Although written in 2009, you may find this link interesting: “Search and content processing

Are LexisNexis and Westlaw potentially in trouble?  Please share your point of view.

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The importance of e-Discovery

On January 10th, Bill Kammer, a member of the San Diego ESI Forum and  a partner with Solomon Ward Seidenwurm & Smith LLP  invited both Eliseo Villegas and I to attend a discussion on the fundamentals of  forensics for eDiscovery.

Statistics were revealing; more than 90 % of all information is produced digitally, of which 80% to 90% percent remains in digital form; therefore, not paying close attention to the ethics opinion, could pose problems that are expensive to lawyers’ clients simply because practically every case now involves eDiscovery.   How can lawyers and their team learn how to sort through enormous amount of data quickly and efficiently to reduce expenses when digital information is endlessly changing with auto-delete functions, write-over programs that can alter relevant documents in the case at hand?

I also had the opportunity and the pleasure of attending a 3 hour Ethics Seminar with regard to how electronic data puts ethical burden on attorneys.  It was held by the SDLSA on Saturday, January 12th, 2013 where Ed McIntyre, a partner with Solomon Ward Seidenwurm & Smith LLP and the lead author of the ethics opinion by the San Diego County Bar Association, clearly stated that “the idea of providing competent representation and of providing candor is not new.  What has changed is the fact that we now live in a digital world, and that, has changed how we have to approach the black letter of those duties and how to apply them.”  The ethics opinion also states: “because of the dynamic nature of digitally stored information, and because relevant information can be irretrievably lost almost in an instant, the obligation to preserve such information as soon as litigation can be reasonably anticipated has become a paramount focus of judicial scrutiny,”

Here is how lawyers can avoid costly complications by potentially harming their clients’ interests and losing their case:

The 11-page ethics opinion notes that it is necessary for lawyers to have the expertise in preserving digital information (either learn the management of appropriate software; or outsource to competent vendors) and when there is a reasonable expectation of litigation, lawyers must impose a “litigation hold.”

The ethics opinion states: “to do this, the lawyer must become fully familiar with the client’s document retention policies, as well as the client’s data retention architecture,”

Digital information also differs from paper documents, in that, parts of electronically stored information, called metadata, is not immediately apparent but exists and can be accessed.

Because the amount of data risks exposing confidential information, the ethics opinion does state that when relying on outside help, lawyers should only consult other lawyers and not any non-attorney vendors.  This will be the subject for another blog.

Ed McIntyre did say: “there is nothing here that redefines the duty of competence; it just tries to apply it to digital storage.  What the committee is trying to do is to put out guidance that, as a practical matter, is helpful to practitioners.”

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Welcome

Welcome to our blog! This is your gateway to learn a little more about us, what we do, and the courier industry in general.

American Messenger Services, Inc. was born out of an inherent need for great customer service, thorough completion of requests, and peace of mind, and that’s exactly what we offer. Our team is made up of professional employees with extensive experience in legal and attorney services. We offer court services, service of process, legal reprographics, subpoena preparation, skip traces, and more.

Follow our blog for frequent updates about what’s happening in our company, along with tips and information about the legal courier business. Feel free to leave comments for each post. We’d love to hear from you.

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