Chambers Lunch with U.S. District Court Judge Cathy A. Bencivengo
By. Joseph Orabona, Assistant United States Attorney
On February 22, 2019, U.S. District Judge Cathy A. Bencivengo welcomed a dozen FBA members to her chambers for lunch and an informal discussion. Judge Bencivengo invited FBA members to peruse the items she has in her chambers, which included a monopoly board from her alma mater Michigan, a jar full of Angry Birds, a beautiful statue of a peacock, and mementos from her long-tenured private practice representation of Dr. Seuss. When Judge Bencivengo became a District Judge, she received a large, stuffed Horton to remind her that: “A person’s a person, no matter how small.” Dr. Seuss, Horton Hears a Who!
During the luncheon, Judge Bencivengo discussed her career path to both the U.S. Magistrate and U.S. District Court benches. She shared her passion for the law, and answered questions about many of the practical challenges lawyers face in court. Topics ranged from how to successfully use voir dire to select your jury, to the importance of correcting any and all typographical errors in briefs and using the correct pronoun for your client (both of which distracts the Judge away from any persuasive arguments you may have made). Judge Bencivengo stressed the importance of lawyers truthfully and accurately providing the Court with the facts and the repercussions for failing to do so. Judge Bencivengo also provided valuable insight on the challenges the Southern District of California faces given the current number of open positions for district judges, the shortage of courtroom space, and the impact of Operation Streamline.
The San Diego Chapter thanks Judge Bencivengo and her staff for their time and hospitality, and for the unique insight provided to all who attended this special event.
On March 27, 2019, the San Diego Chapter of the Federal Bar Association presented the first in a four-part series of educational events on “Trial Advocacy in the Southern District.” Part One, “Voir Dire” was presented by District Judge Dana Sabraw, with co-presenters Eugene Iredale from Iredale & Yoo APC, and Dave Fox from Fox Law APC.
The panel covered the basics as well as successful strategies for effective voir dire. The panel also discussed the differences between conducting voir dire in criminal versus civil cases and state versus federal court. In light of the short amount of time allotted for voir dire in either type of case and either venue, the panel recommended the focus to be on gathering information and establishing credibility.
Dave recommended key topics to present to the jury during questioning in order to make the most of the limited time. The entire panel agreed that it is essential to address the weaknesses in your case during voir dire, rather than waiting to address it during trial. Dave also shared examples of questions crafted to elicit key information in a short amount of time. Regarding establishing credibility, Judge Sabraw noted that from his experience presiding over trials, attorneys do not fully establish credibility during voir dire. He recommended that attorneys keep in mind that they begin to establish credibility during voir dire and gain or lose credibility throughout the trial.
Dave also highlighted barriers to effective jury selection. He shared examples of effective and ineffective ways to interact with the jury. He stressed the importance of listening to the jurors’ answers and asking follow-up questions. The panel also discussed the effectiveness of jury questionnaires.
Gene discussed the rules regarding challenges for cause and peremptory challenges. He shared how to effectively use the limited amount of time you have to identify which jurors would be candidates for such challenges. The panel also discussed common technical errors attorneys tend to make and how to avoid Batson challenges. Judge Sabraw noted the seriousness with which the court takes Batson challenges and recommended being able to articulate the reasons for exercising a challenge for cause or peremptory challenge.
Judge Sabraw shared that, from a judicial perspective, attorneys tend to try to do too much in voir dire. He stressed that voir dire is conducted in an awkward setting that is different from the rest of trial. Thus, being too precise or too detailed with questions tend to detract from the recommended goal of fact gathering and establishing credibility. From his experience, attorneys begin to gain credibility with the jury when their questions show that they understand that the jurors are interested in getting to the point of why they are there and what they will be asked to do.
The panel also agreed that the interests of the court and the interests of the attorneys will always conflict. The court has an interest in expediency and counsel have an interest in fact gathering. Ultimately, the panel agreed that the formulation of questions is key to making the most of the limited time allotted for voir dire, gathering key information, and establishing credibility with the jury.
On April 25, 2019, the San Diego Chapter of the Federal Bar Association partnered with the United States District Court to present the second session of the Trial Advocacy Series regarding Opening Statement and Closing Argument featuring the Hon. District Judge Cynthia A. Bashant, Deborah Dixon, founder of Dixon Diab & Chambers LLP, and Deke Falls, Federal Defenders of San Diego.
The event started out with a demonstration of an opening statement delivered by Deborah Dixon. A lively and informative discussion ensued regarding the general rules of the road as well as more nuanced advocacy pointers. Essentially, the opening statement should tell a story, be persuasive, use visuals/demonstrations, and tell the factfinder what you will be asking for in closing.
Deke Falls explained that the closing argument may not actually change the factfinder’s mind, rather it presents an opportunity for the attorney to provide ammunition to the members of the jury who already side with his/her case so they can assert those points during deliberations. He stressed the importance of being prepared to present closing argument, but also responding to opposing’s counsel’s arguments. The attorney should know the themes and issues of the case well enough to generally prepare. However, argument should be delivered as a response to the issues raised by one’s opponent and not as a canned speech.
Judge Bashant offered her views from the bench emphasizing common sense approaches to effective persuasion. She explained that rebuttal can be difficult to pull off effectively and may actually weaken the jury’s impression of one’s case. She challenged attorneys to be brief and truly responsive to the argument presented by the opposing counsel.
The panel also entertained questions from the audience and gave many demonstrations of their advice providing practical examples as guidance. In sum, this Trial Advocacy seminar served as a valuable resource to federal practitioners and enhanced the judiciary’s connection to the local legal community.
On June 11, 2019, the San Diego Chapter of the Federal Bar Association partnered with the United States District Court to present an MCLE on Evidence and Objections as part of its Trial Advocacy series. The panel was comprised of experienced federal litigators: the Honorable Anthony J. Battaglia United States District Judge for the Southern District of California; Jami Ferrara (criminal defense); and Ricky Sanchez (civil defense).
The panel discussed potential issues when presenting evidence and provided tips and suggestions based on their experience litigating/presiding over federal trials.
Planning on how to handle evidentiary issues in advance helps to develop your case. Prior to trial, Ms. Ferrara gathers all potential evidence into piles, identifying what she wants to get admitted, to keep out, and what will be used potentially for rebuttal. She then uses post-it notes to notate any admissibility issues directly on the evidence so she is prepared at the time of trial. Mr. Sanchez uses a flowchart identifying what evidence will assist in his presentation of the theme at trial.
Motions in limine are great tools to allow the court to resolve complex evidentiary issues before trail. The panel discussed the use of motions in limine to seek the admittance of potentially prejudicial evidence such as prior convictions or drug use.
The panel highlighted the need to take a broad view of evidence and analyze the potential collateral effect it may have.
Judge Battaglia warned attorneys to carefully review all evidence in its entirety before getting it admitted noting that attorneys will sometimes neglect to consider what information is contained on the back of a document. Mr. Sanchez discussed a trial where the court had granted a motion in limine to exclude evidence of a decedent’s gang affiliation. The plaintiff’s attorney moved a photograph of the decent into evidence without looking at it closely. Mr. Sanchez was able to enlarge the photograph which depicted the decedent’s gang tattoos which opened the door to testimony regarding the gang affiliation.
Ms. Ferrara advised attorneys that when using demonstrative evidence to remind the jury at the time it is being used that the demonstrative evidence will not go back to the jury room and they can takes notes if they believe the information will be of assistance.
The panel reminded counsel to be aware of what their opposing counsel keeps on their tables. Mr. Sanchez once obtained a court order requiring opposing counsel to remove signage on their trial binders calling for justice of their client.
Judge Battaglia discussed the move to digitize exhibits. Ms. Ferrara recommended having a back-up plan by printing extra copies of documents in case technology malfunctions and you are unable to print notations a witness makes on an exhibit using the court’s touchscreen.
The panel concluded the presentation by discussing methods for refreshing a witnesses recollection and impeaching a witness.
Around 200 judges, lawyers, and law students recently filled our district court’s jury lounge for Dean Erwin Chemerinsky’s annual summary of the Supreme Court’s most recent term. Attendees gathered for Dean Chemerinsky’s insights into how the recent term fits into the Court’s history and what we can expect from the Court going forward.
Making his case summaries particularly interesting, Dean Chemerinsky often shares first-hand experience. He represented Gilbert Hyatt, for example, in the recent case of Franchise Tax Board of California v. Hyatt, in which the Court overruled Nevada v. Hall, a case that had allowed a private party to sue a state in another state’s courts.
Dean Chemerinsky funnily related how, at oral argument in Hyatt, “Justice Breyer did a two-minute soliloquy on why stare decisis matters in the law, and he tacked on the end, ‘Do you agree?’”
“I paused for emphasis and then said, ‘Yes.’”
“Chief Justice Roberts interjected and said, ‘I thought that’s what you would say,’” recounted Dean Chemerinsky, to chuckles from the audience in the jury lounge.
Ultimately the Hyatt decision, as well as Knick v. Township of Scott, in which the Court overruled another line of precedent, prompted Dean Chemerinsky to ask, “What weight will [the Roberts Court] give to precedent under stare decisis?” Indeed, Dean Chemerinsky pointed to Justice Breyer’s dissent in Hyatt, which concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
With regard to its most recent term, however, Dean Chemerinsky observed the Court mostly flew under the radar by taking up largely non-controversial cases. He noted, for example, that Justice Gorsuch sided with the liberal justices in four decisions. Dean Chemerinsky cautioned, though, that we should not generalize from such a small sample. Instead, we should ask, “Was this atypical or a harbinger for the future?”
“After the bruising Kavanaugh fight,” Dean Chemerinsky remarked, “the Supreme Court seemed to want to stay away from the most divisive and controversial issues.” The Court declined, in its recent term, to review a Ninth Circuit case regarding the Deferred Action for Childhood Arrivals (“DACA”) policy, a Second Circuit case on gun-ownership restrictions, and a Seventh Circuit case regarding restrictions on abortion access. The Court also declined to resolve a split among the circuits as to whether Title VII precludes discrimination based on sexual orientation and gender identity/expression.
As for the two most controversial cases the Court decided (cases involving partisan gerrymandering and a citizenship question on the census), Dean Chemerinsky opined that the Supreme Court “felt obligated” to take these cases. In the gerrymandering case, he noted an applicable statute provided for Supreme Court review from the three-district-judge panel that decided the case. And in the citizenship-question case, he believed the Supreme Court was moved by the government’s deadline to finalize the census questionnaire.
Looking into the future, Dean Chemerinsky noted the Supreme Court has now granted review in more than fifty cases for its next term, where it has usually granted review in only twenty to thirty cases by this time of year. In fact, the Supreme Court has taken up nearly all the controversial cases it declined to review last term, including the DACA case from the Ninth Circuit, the gun-restriction case from the Second Circuit, and cases dealing with sexual orientation and gender identity/expression under Title VII. And all of these cases—each presenting some of our nation’s most divisive issues—will be argued and decided during the 2020 presidential election season.
“All of this means that next term is likely to truly be a blockbuster,” concluded Dean Chemerinsky.
Civil Practice, North County
By: Steve Chu, Assistant United States Attorney
On August 21, 2019 the FBA was pleased to present a panel discussion on “Best Civil Practices” involving U.S. District Judge Dana Sabraw, U.S. Magistrate Judge Karen Crawford, and U.S. Magistrate Judge Mitchel Dembin. Mark Zebrowski of Morrison Foerster moderated the panel.
On the subject of Early Neutral Evaluations, Judges Crawford and Dembin emphasized the importance of preparation, and how this process offers each side a good opportunity to evaluate a case, hear from the other side and plan the case going forward. Judge Dembin particularly noted that even where parties may not grasp all the legal intricacies of a case, parties will still understand that there are risks in litigation. Having in-person meetings can help people appreciate the risks involved in each case.
On the subject of discovery, the Judges emphasized that they wished to see important issues, such as disputes over privilege or privacy: issues upon which reasonable minds can disagree. Judge Sabraw noted that an attorney’s reputation is often made in Discovery and Law & Motion practice, because few cases make it to trial.
On motion practice, the Judges noted that briefs should be as short as possible, because shorter briefs typically force attorneys to be efficient, and communicate more clearly. Judges Sabraw and Crawford emphasized that it is very important for the moving party to state the relief they are seeking at the outset of the motion, rather than bury their request towards the end of the brief. As with Discovery, the judges stated that they like to see important motions, but that some motions to dismiss are often granted with leave to amend and therefore can be an inefficient use of time and resources.
On motion hearings, Judge Sabraw noted that he will entertain oral argument on certain cases, and it is important for counsel to have a memorized narrative prepared. He observed that too many attorneys do not actually answer the Judge’s question, and that the ability of an attorney to be spontaneous and adjust on the fly is an impressive skill that can be very persuasive.
Each Judge emphasized the importance of civility in the legal profession. The Judges exchanged stories of encountering challenging situations with opposing counsel, and the importance of standing up for oneself. Where necessary, the Judges expressed that they are willing to step in and issue a ruling, and that it takes courage for an attorney to take an issue to a judge. The Judges lamented the decline of civility and agreed that they would like to see civility improved in the profession.
Lunch with U.S. District Judge Cynthia A. Bashant
Have you ever received a free lunch? Almost certainly. Have you ever received a free lunch while chatting with a U.S. District Judge in her Chambers? Unless you are pictured above, probably not. On August 23, 2019, Judge Cynthia A. Bashant graciously welcomed 15 FBA members into her Chambers for an informal discussion.
During the lunch, Judge Bashant discussed her path to the federal bench. After graduating from Smith College, she later went to UC Hastings. Judge Bashant decided to practice in San Diego after an internship brought her here during law school. Judge Bashant was an Assistant U.S. Attorney for 11 years before becoming a Superior Court Judge in 2000. In 2014, she became a U.S. District Judge.
Judge Bashant welcomed questions during the lunch, which ranged from broad topics such as motion practice advice all the way to detailed issues regarding attorney compensation in class action cases. Other topics discussed included the differences between state and federal court, pet peeves, expert opinions, the Court’s challenges given the current number of open District Judge positions, and the importance of not wasting jurors’ time (Pro Tip: know how to use the courtroom technology). Judge Bashant’s law clerk gave the inside scoop on his expectations and the Chamber’s Rules and Procedures.
Before ending the lunch, Judge Bashant showed everyone beautiful paintings from her father that hung from the wall, pillows from the indigenous people of Panama that her daughter picked up while studying there, and promotional posters from her son’s recent ballet performances.
The San Diego Chapter thanks Judge Bashant and her staff for their time and hospitality, and for the unique insight provided to all who attended this special event.
Learning How to Successfully Litigate in State and Federal Court
By: Adam Scott
On December 12, 2019, the FBA and the San Diego County Bar Association (“SDCBA”) joined forces to hold a panel discussion with four state and federal judges. The goal of the event was to help prepare local attorneys to successfully litigate in state and federal court.
Over seventy guests attended the event and heard from the Honorable William Q. Hayes, U.S. District Judge, the Honorable William V. Gallo, U.S. Magistrate Judge, the Honorable Joan P. Weber, California Superior Court Judge, and the Honorable Randa Trapp, California Superior Court Judge.
Under the direction of moderator Carolina Bravo-Karimi, the panel discussed key differences between state and federal court practice. The panel also offered an overview of their respective courts, including statistics and case volumes. The panel next addressed a variety of procedural topics, including how trial and discovery deadlines are set in each court, when to expect tentative rulings, and the importance of settlement conferences. The panel also discussed several key nuances of each forum, such as peremptory challenges during jury selection, and offered targeted advice during a brief Q&A session. The one-hour panel was also followed by a short networking reception with food and drinks.
Overall, this event was not only well-organized, but also well-received. The event was a valuable learning opportunity for federal and state practitioners alike, as well as for several local law students. Thanks to those who participated. We look forward to seeing you at more FBA and SDCBA events in the future.
The Federal Bar Association San Diego Chapter, would like to thank our sponsor:
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