California Trust, Estate & Probate Litigation

It's not everyday that an attorney with over 35 years of experience shares his hard-earned wisdom with the rest of us.  We asked Michael Hackard, of Hackard Law in Sacramento, what tips he could give aspiring lawyers and he provided us with this guest post.  I find Mike Hackard's wisdon truly inspirational, hope you enjoy it too.

Whether new to the law, an accomplished thirty-something professional or a grizzled veteran, we all like to hear stories. We often share experiences or pass on the advice of our mentors, knowing that their advice helped to mold our careers. I will share some of the advice of my mentors with the caveat that I have not always faithfully followed their advice. Many of my personal experiences exemplify the truth that “the spirit is willing, but the flesh is weak.” Those experiences have also taught me the oft-repeated observation that “good judgment comes from experience and experience from bad judgment.”

These tips, whether learned from the wisdom of mentors or gleaned from experience, can prove helpful along our legal careers.

1.  CALL THE BEST EXPERT. I worked for Senator Peter Behr in the California Legislature. He was a great Senator and a great man. He advised me to pick up the telephone and call the best expert in the country whenever I had a major issue and wanted to seek good counsel. Senator Behr shared his life experience with me and explained that experts are often complimented by the call and more often than not willing to help. I have taken his advice and applied it over the almost forty years since it was given. It works.

2.  THERE BUT FOR THE GRACE OF GOD GO YOU OR I. Judge Robert Cole, an early career mentor of mine and that of many other Northern California lawyers and judges was a great character, a war hero and full of humor and insight. He commonly used to say “there but for the grace of God go you or I.” It was a saying born of his experience as a district attorney, public defender and judge. He often shared this statement with me when commenting on the particularly tragic circumstances of a defendant or the defendant’s victims. I haven’t forgotten it. It is a constant reminder to have empathy and to not forget that we are all fallible human beings. Judge Cole’s advice reflects the wisdom of Proverbs – “Pride goes before disaster, and a haughty spirit before a fall.” Keep pride in check.

3.  DO THE VERY BEST THAT YOU CAN. Our commitment to do good, even amidst controversy, is essential. I often remind myself that praise has no meaning if I am wrong, and scorn no import if I am right. Abraham Lincoln, one of America’s greatest lawyers, said it best:

“If I were to try to read, much less answer, all the attacks made on me, this shop might as well be closed for any other business. I do the very best I know how - the very best I can; and I mean to keep doing so until the end. If the end brings me out all right, what's said against me won't amount to anything. If the end brings me out wrong, ten angels swearing I was right would make no difference.”

4.  DON’T BE AFRAID OF CONTROVERSY. At the end of college, I had the opportunity to work for Governor Ronald Reagan. I was at the bottom of the bottom of the totem pole. That was a good position. I saw Reagan in action and spoke with him a few times. He was enthusiastic and optimistic in all that he did. He was not afraid of controversy as long as he felt well centered in his position. Advocacy at times involves controversy. This is not something to shrink from, if in Lincoln’s words, you do the very best that you can to do what is right.

5.  BE ACCESSIBLE. Be accessible to those who need your advice – whether paid or unpaid.  We must be “present” to those who seek our assistance. This is not always easy amidst the pressures of practice and the balancing of our family, faith and business lives. There have been many times when I would rather be at home than at my desk making follow-up calls.  Dean Gordon Schaber advised some two hundred aspiring lawyers on our first day of law school that “the law is a jealous mistress.” Dean Schaber’s observation has been proven to be true. In thirty-six years of law practice I have continually struggled to balance the demands of my professional life with other parts of my life. The balance has at times been quite uneven, but I continue to make a committed effort. The demands of the legal profession are a part of my life.

We are often too busy to even think about tips from others. These 5 tips don’t take long to read, but a lifetime to apply. I am still in that process and I hope that my colleagues can see the wisdom that others shared with me.

 © Copyright Michael A. Hackard, 2012. All rights reserved.  Hackard Law, 10630 Mather Boulevard, Mather, California 95655

After making the decision to take all of my cases to trial in 2011, here are the important lessons I learned as a plaintiff’s and estate trial attorney:

1.  Taking each of your cases to trial generally works in your client’s favor.

Defense attorneys (and their clients) will offer your clients pennies on the dollar for your clients’ harms and losses, until the defendant is fully convinced you will take a case to a jury of your clients’ peers. Even then, most defense attorneys (and their clients) require you to show up and begin trial (whether you get to voir dire, opening statement, or witness testimony) before offering a reasonable settlement amount. I think they do this because they know most attorneys are not willing to go to trial.

Even though I attempted to take every case to trial in 2011, only three cases actually went to trial, with one settling right before voir dire, and the other two going all the way to a verdict. All other cases I had in 2011 settled generally between 30 days out to the day before trial was to begin.

This is an important lesson I learned. It is very likely the only way you will obtain a fair settlement for your client is to be prepared to take your case to trial—and then do so if the defendant refuses to offer a reasonable settlement.

2.  Jury instructions and an elements outline are mandatory.

When I first became an attorney I remember hearing the better attorneys say you have to know the jury instructions and create an elements outline. I had no idea what they were talking about. I do now. Before taking a case, spend time looking over the jury instructions applicable to the case you’re considering taking on. What facts do you have that satisfy each of the jury instructions? Make an elements outline of each jury instruction, including a brief description of the facts you have (or need to have) to satisfy each instruction.

This takes some work early on, but it’s worth it. It helps you focus on what facts you have, and what facts you need to obtain in the discovery process. If you learn new and needed facts during discovery, be sure to update the elements outline.

3.  Hire experts early on.

Experts are expensive—but worth every penny. There were several cases we looked at taking in 2011, but had to decline after experts told us the potential case had no chance of winning. It’s always difficult to have a conversation with a potential client letting them know they don’t have a case, but better to do this early on before putting them through the hell of several years of litigation, and then having the same conversation.

 Experts are also great because they focus you in on the facts you need to obtain in the discovery process.

4.  Don’t be afraid of motions for summary judgment.

I used to be terrified of getting motions for summary judgment. I then changed the way I viewed these motions. First, I now expect that a motion for summary judgment will be filed in every case—and that takes the surprise and fear element out of the equation. Second, because I’ve done my homework with the jury instructions, created an elements outline, and hired experts early on, I am able to file an opposition that will likely be granted. It actually makes it fun (okay, not exactly fun) to put your opposition together.

Motions for summary judgment also alert you to the arguments and facts the defense attorney will use at trial. This gives you additional time to contemplate how you plan to respond to these arguments and facts at trial. We really should be welcoming motions for summary judgment. I’m not there yet—but hope to be sometime in 2012.

5.  Bring motions to compel during the discovery process.

Defense attorneys know that many (if not most) plaintiff’s attorneys will not take the substantial time required to bring motions to compel during the discovery process. Don’t make this mistake. In 2011 I brought motions to compel at the first opportunity. It not only let the defense attorney know I wasn’t going to allow him/her to play games, it made future responses from the defense attorney so much better.

6.  Spend less time objecting at deposition and more time on motions in limine.

I used to treat depositions as an “objection” exercise. Now I don’t do that (unless absolutely necessary). If the defense attorney is questioning my client and I’m uncomfortable with the questions, I simply mark these down in my notes and indicate in my notes that I need to bring a motion in limine to keep this evidence out at trial. In most cases, these uncomfortable questions are either (1) not relevant, (2) lack foundation, (3) are inadmissible hearsay, or (4) can be kept out as “unduly” prejudicial under California Evidence Code section 352.

When you don’t object, it’s amazing how much information a defense attorney is willing to provide in a deposition that you can identify for future motions in limine. Let the defense attorney “win” the deposition—You “win” when it matters at trial when the court grants your motion in limine and keeps the bad facts out.

Worst-case scenario—the Court denies your motion in limine. At least you have the first opportunity to address these bad facts in your opening statement, which will likely remove the sting the defense attorney is hoping for. 

7.  Practice, practice, practice for voir dire and opening statement.

My poor legal assistant. I make her listen to my voir dire questions and my opening statement, over and over again. I want her to poke holes in my questions and opening statement. I also ask anyone else who will listen about these issues. The more you practice the more comfortable you become. I don’t think many defense attorneys spend time doing this—and it shows.

8.  Send defense attorneys all trial documents 30 days out from trial.

Don’t worry about showing your hand too early. Defense attorneys are extremely busy with all the cases they’re required to handle, and likely won’t have time to spend much time with your trial documents in any event. Sending defense attorneys proposed joint exhibit lists, witness lists, a statement of the case, jury instructions, and your trial brief will surprise them. Most plaintiff’s attorneys don’t do it—you should.

9.  Don’t be nice to defense attorneys.

I’m tired of hearing that we need to be civil with the defense bar. I would agree with being nice if the defense bar felt the same way—but they don’t. It’s been my experience that defense attorneys will do anything required to make your client’s case go away. It still amazes me (although it shouldn’t) that defense attorneys are willing to demonize and attack individuals who have suffered substantial harms and losses due to the defendant’s actions. The purpose is to stress the plaintiff so he/she will take a small settlement or dismiss a case in its entirety.

In one of my recent cases, the defense attorney, in deposition, wanted to know how many times my client had sex with her husband in the year prior to his death, which was caused by the intoxicated defendant. Apparently this was to somehow show they did not have a good sex life, which leads to them somehow having a bad relationship, which in turn leads to somehow my client hating her husband and glad that he’s actually dead. I know it takes huge leaps of logic to get there, but defense attorneys don’t care about the logic, they care about stressing your client and making litigation more miserable than it already is.

In another case, a large defendant corporation that manufactures surgical mesh that destroyed my client’s vagina wanted to know in deposition if my client had attempted sexual intercourse after the mesh destroyed her vagina. My client answered “yes” she attempted to one time but could not due to the substantial pain she felt. The defense attorney then wanted to know whom she attempted to have sex with. I directed my client not to answer that question based on her right to privacy. The defense attorney threatened to bring a motion to compel. I told the defense attorney to bring the motion. I couldn’t wait for the court to hear this. Of course the defense attorney already heard two treating physicians of my client testify at deposition that it was very unlikely she would ever have pain-free intercourse for the rest of her life due to the substantial scarring. But that wasn’t enough, the defense attorney wanted to know whom she tried to have sex with. 

Finally, in a recent sexual harassment case, the defense attorney wanted to know how many sexual partners my client (a female) had during her lifetime. Then he wanted to know how many sexual partners in the past 10 years, then 5 years. I did not allow my client to answer these ridiculous, invasive, and despicable questions.

Am I still supposed to be nice to defense attorneys after this type of behavior? I say no. Let’s stop being nice to defense attorneys who choose to act inappropriately. 

10.  Never give up.

Never giving up may be the best trait of a trial attorney. No matter how bad things seem, don’t give up.  Everyone will tell you that your client won’t win or doesn’t have a case. You’ll hear this multiple times from the defense attorney; you’ll hear it from the mediator; you’ll hear it from a judge at the mandatory settlement conference; you’ll hear it from the doubt that creeps into your thought process when you’re attempting to fall asleep at night. Don’t give in to these doubts.

The good news is that most defense attorneys advise their clients to offer almost nothing before trial to settle the harms and losses they’ve created. These insignificant settlement amounts make it easy to go to trial—after all, you won’t do much worse if you get defensed at trial. That makes it easier for me to handle the doubt that I will inevitably feel going to trial. Chances are, if you don’t give up, the defendant will come up with a reasonable settlement amount a few weeks out from trial. But if they don’t, take them to trial. There’s no reason not to. 

In one of my recent blog posts “Become a Discovery Ninja” I set out my workflow for responding to discovery requests. The most important rule of my workflow is to respond to the discovery requests within 48 hours of receiving them. I’ve had several attorneys ask me how I can do this so quickly in light of most attorneys’ hectic schedules, including being in trial, responding to ex parte motions (or regular motions for that matter), responding to motions for summary judgment, morning appearances, etc. 

It is my belief that 95 percent of the time trial attorneys can meet (and likely exceed) the 48-hour response rule. Keep in mind I do not believe there are any shortcuts to learning the facts and law of a particular case. Of course as plaintiff attorneys we usually have plenty of time to research and evaluate a case before engaging with a client. The evaluation period is the perfect time to learn the facts, witnesses, and documents (or things) pertaining to your potential new case. Learning the facts, witnesses, and reviewing pertinent documents always takes time and effort—and then some more time and effort. But once you have the facts down, and understand the application of those facts to law, responding to discovery should be straightforward. Okay, now to an application that can help you quickly respond to discovery.

I use TextExpander for many things in my practice—including responding to discovery. (TextExpander can only be used with Macs, but there are other applications available for PC users such as Breevey or Snippet Bin that function similarly to TextExpander). 

For discovery responses I have two groups of “snippets”, namely Discovery Objections and Discovery Responses. As you can see in screen shot above there is a file for "Discovery Responses" and a file for "Discovery Objections".  I've selected "Discovery Objections" for the screen shot to show a few of my objection snippets. 

I have over 60 objection “snippets”, including attorney-client privilege, work product doctrine, calls for expert’s opinion from a lay person, equally available to propounding party, etc. For each one of these objections I have a snippet that can be used to respond to Document Demands, Form and Special Interrogatories, and Requests for Admissions. 

For example, if the defense attorney requests that my client provide an expert opinion in special interrogatories I simply type "ROG ExpOp" into my word procesor for that special interrogatory response. TextExpander immediately inserts the objection. You can see the text that is inserted below in the screen shot.

You can insert this objection  each time you come to a question asking your client to provide an expert opinion. I simply re-type "ROG ExpOp" and my snippet is immediately inserted each time. As you can see from the screen shot above I also have objections for work product, right to privacy of financial records, collateral source (not sure how good this objection is after Howell), asked and answered, etc. 

Before TextExpander I used to cut and paste from a template of objections. While this works, in my experience it takes much longer and it is easy to get lost in a large response file. 

As you can imagine, using TextExpander speeds the process up for responding to written discovery. Give it a try in your next discovery response. 

This video post is our informal discussion of why we practice law.  It is important for us to know our purpose in practicing law.  In fact, we put our purpose on the first page of our website, and we talk about it constantly.  For those viewing this blog by email subscription, you can click on the title for a link to the video.

In April 2009 I weighed 216 pounds. I’m 6’1” so I didn’t consider myself to be overweight. In fact, at this time, I was riding my road bike 60 to 90 miles per week, and even competed in the L.A./Kaiser triathlon the year before. But my diet was terrible. I ate way too much food—including the wrong types of food. I had gained approximately 30 pounds (mostly fat) since I graduated college in 1999. It’s a true statement—“you can out eat any exercise program.”

I was in court one day in April 2009. For some reason I noticed that many of the older litigators were overweight (some were really overweight). It scared me as I was headed down this same path. I immediately made a decision to get into great shape—from both a fitness and diet standpoint.

After coming across Tony Horton’s infomercial, I started doing P90X at the end of April 2009, and started making healthier food choices. Six months later, I dropped from 216 pounds to 204 pounds. I still didn’t like what I saw around my mid-section. In April 2010 I was down to 198 pounds. I continued doing P90X religiously, and closely monitored my diet. In April 2011 I was down to 195 pounds. 195 pounds was still not where I wanted to be—my overall goal in April 2009 was to get back to the 186 pounds I weighted when I was in the U.S. Army at 21 years old.

In July 2011, I started following certain fitness gurus to find out what I needed to do to drop those last few pounds of fat. I was overwhelmed with all the advice and fads out there. Over the past few weeks I have pared down who I follow, and implemented many of these “guru’s” suggestions into my fitness and diet routines, primarily Brad Pilon, Rusty Moore, and Martin Berkhan. Within in a few short weeks I dropped those last few stubborn pounds of fat, reaching my goal weight of 186 pounds. 

Here’s a list of the fitness gurus I currently follow:

Brad Pilon: You can find Brad at his blog and on Twitter. Brad’s advice regarding intermittent fasting sounds wrong at first. We’ve all been told we need to eat six small meals a day to lose fat and maintain muscle. Brad says “no” to the six small means and recommends intermittent fasting two times a week. He wrote a book about it, Eat Stop Eat. (Yes his book costs $39.95, which is the same cost as 10 Big Macs—a bargain in my opinion.) Look at Brad’s physical appearance on his blog. Does it look like he’s lost muscle from intermittent fasting?

Rusty Moore: You can find Rusty at his blog, The Fitness Black Book, and on Twitter. This is one of the first blogs I read regularly—and still do. Rusty gives great advice, and there’s lots of free content on his blog. He has a book as well, Visual Impact Muscle Building, which I believe costs $47. Again, a bargain compared to how much we spend on unhealthy foods each week. Rusty’s advice in a nutshell is to follow Brad Pilon’s Eat Fast Eat diet, and at same time train in a fasted state. You can find lots of useful ideas and advice on his blog. I’ve been training in a fasted state for the past four weeks and dropped those last few stubborn pounds of fat. It really worked for me.  

Martin Berkhan: You can find Martin at his blog, Leangains.com, and on Twitter. Martin’s Leangains Guide is full of great advice. I’ve switched between Brad Pilon’s Eat Fast Eat and Martin’s recommendations in his Leangains Guide. Martin is also an advocate of fasted training. Martin adds supplement advice to his training recommendations. Primarily, Martin recommends taking 10 grams of BCAAs (Branch Chain Amino Acids) prior to training, and several hours after training is completed. The BCAAs provide the muscles with protein and allow you to still train in a fasted state. Just watch the fat melt away after a few sessions of training in a fasted state.   

P90X/Tony Horton: Where would I be without Tony Horton? I still do P90X a few times a week, mostly for cardio training. If you are out of shape a little—or even a lot—give P90X a try. Tony is great at motivating you and teaching you how to modify the workouts until you are ready to “Bring It.” You can order P90X here. (Yes, I know it costs $140. But how much did you spend on pizza last year?) You can also follow Tony on Twitter.

Stewart R. Albertson is an attorney in Riverside, California. Stewart helps people in the areas of Trust, Estate, and Probate litigation. You can find Stewart at his website, blog, and on Twitter.

Albertson & Davidson, LLP has created a new private foundation to help support children's causes. Listen to partner Keith A. Davidson announce the creation of our new foundation.

Albertson & Davidson, LLP, Riverside County’s fastest growing boutique law firm, is pleased to announce the creation of the “Albertson & Davidson Children’s Foundation”, which will contribute money each year to deserving charitable and governmental organizations that support children in our community.

“Our firm has, and continues to, represent members of our community that have been harmed by the actions of irresponsible individuals and companies” says named partner, Stewart R. Albertson. “We require these irresponsible actors to take full responsibility for the harms and losses they cause to members of our community. We also represent individuals in trust and estate matters who have spent their lives participating in our local communities.” 

Now Albertson & Davidson, LLP has chosen to take action more directly to help support a segment of the community that is underrepresented—namely, children. Children do not have the power to vote, do not have money to hire attorneys, and their unique causes are not fought for by high paid lobbyists in Washington, D.C. As a result, many at-risk children are not properly represented. “Our hope is that the Albertson & Davidson Children’s Foundation will help fill the gap and provide funding for the support of children’s care, medical treatment, and education” says Mr. Albertson.

The Albertson & Davidson Children’s Foundation will soon be a qualified 501(c)(3).  Albertson & Davidson, LLP will contribute a portion of its legal fees to the foundation, including a portion of the verdicts and settlements the firm wins on behalf of community members who have been injured by irresponsible actors. They will also encourage others to help fund the Albertson & Davidson Children’s Foundation, such as other law firms, entities, and individuals.

“We are excited about this new chapter in our community involvement and encourage every member of our community to take action to help those in need among us” says Keith A. Davidson, partner at Albertson & Davidson, LLP.

Access to legal information does not always require an expensive subscription to services like Westlaw and LexisNexis. You can obtain legal information for free at the following sites:

Albertson & Davidson’s Top Free Legal Links:

• California State Codes
• Google Scholar
• The Public Library of Law
• California Findlaw
• California Judicial Council Forms
• California Appellate and Supreme Court Opinions
• California Courts’ Contact Information
• California Courts Self-Help Center
• California EZ Legal Filing

 I’ve used my iPad for about a year now. It has changed the way I practice law—mostly for the better. Here’s my list of top 10 iPad apps for lawyers:

1. GoodReader. I recently appeared at a motion hearing where I was opposing a motion for summary judgment. Before the hearing, I was able to download all of my motion papers (as well as my opponents) all in GoodReader. I then sorted the motion papers into their own named files, and even bookmarked all exhibit and declaration pages so I could retrieve them quickly, if needed. I appeared at the hearing and relied solely on a blank legal pad, pen, and GoodReader. I found it much easier to find the documents or moving papers I was looking for in GoodReader, rather than fumbling with a thick file trying to find that one sentence in a declaration I needed to support one of my arguments. It may take some getting used to, but GoodReader makes it easy to find the documents and papers you need quickly during a court appearance. 

2. Outliner. I use Outliner all the time—in client meetings, preparing for trial, taking and defending depositions, etc. I don’t know how I did depositions before Outliner. When defending a deposition I simply take notes of all issues the opposing attorney is going into when questioning my client. Timelines are simple to complete by using a function in Outliner that allows you to rearrange the outline as you take notes. If the opposing attorney jumps back to a different topic and date out of order, it is simple to start a new line item and then quickly move it to the place in the timeline where it should appear. After my client’s deposition is completed, I have a beautiful outline of the areas that I will see again at trial. This is a versatile app and well worth it. 

3. Penultimate. There are other handwriting apps out there, but I use Penultimate. When I’m in a hearing and the court gives me the next hearing date, time, department, and reason for the hearing, I simply jot those items down with my finger as a pen. I then hit the email function and send the new hearing information immediately to my assistant who opens the email and adds the new information to my litigation calendar. Done. Now I don’t worry as much as I used to about missing a hearing because I forgot to enter it into my calendar when I got back to my office (due to being barraged by phone calls, clients, etc., when I get back from court). You can also use this app to take simple notes. I use Outliner for more detailed notes. 

4. NewsRack. I use NewsRack to keep track of my favorite blogs. You can follow my blog on NewsRack as well.

5. Twitterrific. I use Twitterrific as my Twitter client. I am able to filter my message types into individual folders, i.e., Legal, News, Blogs, etc. 

6. Keynote, Pages, and Numbers. I use all three. I plan on using Keynote for an upcoming bench trial. 

7. Instapaper. I rarely use Instapaper to save web pages for offline reading at a later time (i.e., in an airplane). But I really enjoy reading the “Editor’s Picks” folder. I recent went on a cruise and ended up reading obscure articles out of the “Editor’s Picks” folder that I never would have read, but for Instapaper. I now have all kinds of interesting topics to raise at my next cocktail party. 

8. Pandora. I recently heard a song by Neil Young and loved it. I have not listened to many songs by Neil Young. Pandora changed that. I selected the “Neil Young” station in Pandora and was treated to many other songs by Neil Young and his contemporaries. Best of all, it’s free.

9. iAnnotate PDF. My paralegal sent me a brief that I opened in iAnnotate PDF. I was able to make comments on the brief and email them back to my paralegal. She made all the changes and it was sitting on my desk ready to sign when I got back to my office. I also use this app to review long deposition transcripts. You can mark them up as you go. Nice app.  

10. Friendly for Facebook. I didn’t like using the iPhone Facebook app. So I downloaded Friendly for Facebook for iPad and I love it. 

That’s my top 10 iPad Apps for Lawyers. Let me know your favorite apps.