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Can you trust your attorney?  Most people think attorneys are the least trustworthy group around.  But despite the jokes, an attorney is not like a used car salesman.  As a group, we take our obligations pretty seriously, because if we violate them we can lose our licenses.  One big category of our ethical obligations is our fiduciary duty to clients.  These duties include the duties of loyalty, confidentiality, disclosure, competence, and others.  We voluntarily undertake these duties specifically so that clients can trust us to act on their behalf.

Trusting Your Attorney’s Loyalty

Unlike real estate agents, attorneys can never work for both sides. If they do so intentionally, they would almost surely be disbarred!  We all have the duty of highest loyalty to our client.  That said, attorneys can cooperate with the other side to get things done.  Your attorney just can’t work against you or give away your advantages.  Don’t let common courtesy and fair play destroy your trust in your attorney.  For example, granting the other side an extension because they were on vacation is normal.

Once, a potential client came to my office.  He wanted to know if he had a case against the local police department.  I listened to his story, and gave my opinion that he had a good case.  The client went home and googled me, and learned that I used to be a prosecutor.  He worried that I would be on the side of the police, and that fear destroyed his trust in me. He didn’t hire me.  That incident really brought home to me how suspicious many people are of lawyers.

Public defenders have to fight similar suspicions.  Clients fear that because the defender is paid by the same government that is prosecuting them, their loyalty is compromised.  Usually, nothing could be further from the truth. I would rank public defenders as the attorneys who least like and trust the opposing side (prosecutors), and the least likely to cooperate with them.

Trusting Your Attorney To Keep Your Secrets

We lawyers take an oath when we are sworn in as members of the state bar in California.  Part of that oath is that we will preserve the secrets of our clients “at every peril to [ourselves].”  Cal. B & P Code § 6068.  This means that no matter what, we cannot reveal attorney-client privileged communications.  I’ve personally watched a lawyer go to jail rather than reveal her client’s confidential information to a judge.  http://www.latimes.com/local/lanow/la-me-ln-chp-beating-attorney-contempt-20150303-story.html

The only exception to this rule is if you tell your attorney you will commit a crime.  Not just any crime either.  It has to be a crime that will result in death or serious bodily injury.  Even then, your attorney may decide not to report it.  If she decides to report, she must first try to dissuade you, and inform you of her decision to report.

Trusting Your Attorney to Be Truthful With You

Your attorney must disclose important information to you because of the duty of candor.  Your attorney must explain the pros and cons of any recommended course of action.  They also must tell you about other reasonable options.  If the other side makes a settlement offer or demand, your attorney has to tell you the terms immediately.  Also, if your attorney obtains other facts or information that would be important, they have to disclose those facts to you.  Your attorney may never lie to you about your case.

Trusting Your Attorney to Be Competent

Your attorney has to act with the appropriate care and skill on your behalf.  For example, I’m a litigator.  If my client needs a will and trust drawn up, I basically have to refuse.  Same thing with a death penalty case.  If I don’t get someone who is competent in those areas to help me, I can’t do those jobs.  Even in ordinary litigation, I still have to exercise ordinary care in every case and make sure I’m litigating properly.  If I get sick and can’t focus on my cases, I need to withdraw or find someone to help me.

The only exceptions are in a true emergency, if no one else is available.  For example, assume I am the only private attorney in a rural town. I might be required to defend a death penalty case even without experience if no one else can do it.  Or, let’s say I happen to be present when someone is dying before my eyes.  If they are able to make their last wishes known to me, I could try to write up their will on the nearest sheet of paper.  Even if I do it wrong, the thinking goes, it’s better than nothing.

General Fiduciary Obligations

Fiduciaries must generally act in their client’s best interests.  They may not engage in self-dealing or misappropriate client funds.  There are many breaches of fiduciary duty that all involve somehow working against the client, or neglecting to do the right thing.  Acting as a fiduciary requires a very high standard of behavior.  This provides a very strong layer of protection precisely so that people can feel safe trusting their attorneys.

Obviously, every individual is different and you cannot trust every attorney simply by virtue of their license.  Every situation and relationship is different and you should pay attention to what your logic and gut tell you. But overall, as a profession, we have very serious obligations to our clients that should help put your mind at ease.

A motion requests that the court do something with respect to the case. Outside of discovery, filing and opposing motions probably uses the most amount of time in litigation. In theory, you could file a motion asking the court to do anything, but California statutes authorize certain specific motions. Below I list some of the most common motions, and the reasons you would file them.

Motion to Quash

You file this motion to contest service of summons, or to contest the issuance of a subpoena. It’s tricky to serve summons correctly if you don’t have experience.  In most cases, you have to personally serve it, although you can serve out of state defendants by mail.  If you really can’t find the person, you can ask for permission to serve using a notification in the newspaper.  I would not recommend this route.  Just find them.

I worked on a case recently where a registered process server lied about having personally served hundreds of defendants. This guy risked his license and career! Not only could he have lost his license, he could have faced charges of perjury. He would find names of co-residents by looking at their mail, then claim to have left it with one of them. Or he would just claim he had left the papers with the actual defendant when he hadn’t. It came to light when people were able to prove they weren’t there when he said they were. One woman even showed a passport stamp proving she was in India at the time he allegedly served her.  Others could show they had long since moved from the address where he claimed to serve them.  The court was extremely displeased, and quashed service on many of the defendants.

Motion to Strike

You can use this motion in a number of contexts. The main idea is that you want to remove something from the official court record of the case. Most people have heard the phrase on tv in cross-examination scenes. An attorney will ask a question, get an answer that is nonresponsive, then ask the court to “strike” the testimony. If the testimony is improper, the court will “sustain” the motion. Once the judge orders the offending testimony stricken, the court reporter deletes the stricken testimony from her notes. From that point on, the official trial transcript omits the offending testimony.

Motions to strike can also be submitted in written form, in an attempt to remove “irrelevant, false or improper matter inserted in any pleading” or contest specific claims. CCP § 436. You can also move to strike where a pleading is “not drawn or filed in conformity with” California law, court rules, or an order of the court. Id. A motion to strike has to specifically identify what language it is seeking to remove and has to justify it. The standard is a very high one, as plaintiffs mostly have the right to allege whatever they want.

Special Motion to Strike (Anti-SLAPP)

These motions are really cool. The legislature noticed that some lawsuits were being used by big companies to punish and intimidate individuals for exercising their free speech, and passed a law against “Anti-Strategic Lawsuit[s] Against Public Participation.” This strange-sounding name for a lawsuit is abbreviated “SLAPP”. It just means the plaintiff has sued a defendant for exercising his or her constitutional rights. The classic example is a business owner suing a Yelp reviewer for an ordinary bad review, calling it “defamation.” Most SLAPP plaintiffs are not trying to actually win. They just want to overwhelm and intimidate the defendant with the threat of high legal defense fees.

If you are the victim of a SLAPP suit, you can file an anti-SLAPP motion, also called a special motion to strike, pointing out that the claims arise from your exercise of protected constitutional activity, like free speech. If the court agrees with you, not only is the lawsuit dismissed right away without the need for trial, but you get all of your attorney’s fees in filing the anti-SLAPP motion!  There is now also something called a SLAPPback action, to counter abuse of the anti-SLAPP. For more information on anti-SLAPPs, visit the California Anti-SLAPP Project.  They are the best in the state at all things anti-SLAPP.

Motion to Compel Arbitration

Historically, arbitration was cheaper and faster than litigation. So people began agreeing at the outset of relationships that if they had a dispute, they’d use arbitration.  Arbitration clauses now appear in many contracts.  You would file this motion if you had a contract with an arbitration clause, and the other party sued you anyway.  Typically, the motion just asserts the existence of the arbitration clause and attaches a copy of the contract. It should include a declaration of a party to the contract declaring the copy genuine.  You might also cite boilerplate caselaw about why the court should compel arbitration. To oppose, you would have to invalidate the contract, or challenge the phrasing of the arbitration clause specifically.

I once successfully contested a motion to compel arbitration in a lawsuit between an individual and her former attorney. Although the retainer agreement contained a valid arbitration clause, we showed she had been under extreme time pressure to sign.  The attorney told her she could not read the contract in detail because he had to leave to pick up her file and begin working on her case. He also told her that the retainer was standard and that any attorney would require the same terms of her. We argued that she reasonably relied on his representation that the terms were standard and non-negotiable anyway. The case didn’t go to arbitration.

Motion to Compel (Further) Discovery Responses

This category covers a number of different types of motions. Once you serve discovery, the responding party has thirty days to provide responses. If they do not provide responses, you can file a “motion to compel discovery responses” immediately.  You don’t have to do this by any specific time.

But if they provide deficient responses, the propounding party has to “meet and confer” with the responding party. If after meeting and conferring, the parties cannot agree, then the propounding party may move to compel “further responses.” You have to file this motion within 45 days of service of the response. The parties can and often do mutually agree to extend this deadline.  Why?  They may need more time to “meet and confer,” or the responding party may need time to correct their deficient responses.

If you file these motions, you have to file a separate motion for each type of discovery that the responding party failed to provide adequate responses to. So for example, if the responding party failed to respond to both a set of Requests for Admission AND a set of Requests for Production, you would have to file two motions: Motion to Compel Responses to Requests for Admission and Motion to Compel Responses to Requests for Production.

Demurrer/Motion to Dismiss

In California, a demurrer is similar to a federal motion to dismiss. Basically, you file it to challenge the legal sufficiency of the other side’s allegations against you in their complaint. You can also demur to an answer, although most people (including judges) scoff at this practice. The key here is that you cannot introduce evidence. Demurrers stick to “the four corners of the complaint” and take all allegations as if they are true. Even if the complaint contains easily disproved lies, the demurrer is not the appropriate vehicle to point that out. (That’s what trials are for.)

If a complaint lies about a fact which may be subject to judicial notice, however, that is an exception. You can ask the court to take judicial notice of easily checked, publicly known facts.  For example, April 30, 2017 was a Sunday.  Let’s say a complaint claims the plaintiff bought stamps at the post office on that day.  You could ask the court to judicially notice the falsity of that statement.

I have filed demurrers in my time, but rarely. Courts rarely grant them, and the plaintiff usually gets to fix any deficiencies anyway. Still, there are sometimes strategic reasons to file these.

Motion for Summary Judgment/Summary Adjudication

This is a motion where you can present evidence in your favor, or point out the lack of evidence against you. You are asking the court to enter judgment without a trial, so you have to submit strong  evidence in support. Many motions for summary judgment include dozens of exhibits on which the court can rely in determining that trial is not needed. Much of the time, the defense files the MSJ. This is because the court cannot enter judgment for a plaintiff if the amount of damages is uncertain or subject to dispute. Only a jury can resolve those questions.

In California state court, an MSJ/MSA must usually dispose at least of an entire claim.  The court cannot decide an issue or a question of fact, like whether a contract was validly signed.  There are some specific exceptions.  An MSA can also try to attack a specific defense to a claim, or the issue of insurance liability.

A motion for summary adjudication (MSA) only tries to resolve one claim in the case, or a specific permissible issue.  A motion for summary judgment (MSJ) seeks to resolve all claims in the case.

Motion in Limine

You file motions in limine a few days or weeks before trial, to ask the court to limit or exclude certain types of evidence from the factfinder (whether jury or judge). For example, if the plaintiff has a checkered past, he might try to prevent the defense from mentioning prior lawsuits or convictions. Sometimes parties try to exclude their own offensive comments or conduct that are so inflammatory that they are more harmful than helpful.

The legal limit of blood alcohol levels in California to drive is .08%, or .04% for commercial drivers.  For those under 21, it is .01% – in other words, any detectable alcohol at all is a violation.  The punishments can be severe, and even for a first time DUI usually include the following:
  • A fine of approximately $1,700
  • 3, 6, or 9 months of enrollment and attendance in a DUI class
  • Probation up to three years
  • 90 day license restriction (Note: this is in addition to the DMV suspension you may receive)
  • A jail sentence of 4 days to 6 months.

How Drivers Are Caught

Signs officers look for in cars on the road:
  • Negotiating a wide turn
  • Straddling along the central marker between the lanes
  • Appearing to be Drunk
  • Near misses or hitting either another vehicle or an object
  • Weaving between lanes
  • Driving off of designated highway
  • Swerving within the lane lines
  • Speeding over 10 mph above the designated speed limit
  • Questionable stops in traffic lanes
  • Tailgating
  • Drifting
  • Driving over center marker between lanes
  • Excessive braking
  • Driving against traffic
  • Questionable signaling
  • Delayed reaction to traffic signals
  • Inappropriate stopping or slowing
  • Illegal or unwarranted turns
  • Accelerating or slowing down quickly
  • Driving without headlights on

Signs officers look for once they’ve already pulled you over:

  • A flushed, or red, face
  • Red, watery, glassy and/or bloodshot eyes
  • Alcohol breath
  • Incoherent or slurred speech
  • Struggling to retrieve their license from a wallet
  • Inability to comprehend the officer’s questions
  • Difficulty when exiting the vehicle
  • Unable to stay balanced while standing
  • Using the vehicle for stand support
  • Aggressive or other inappropriate attitude
  • Soiled, rumpled, disorderly clothing
  • Inability to keep balance while walking
  • No knowledge of time or current location
  • Inability to comprehend and/or follow directions

DUI Investigations

An officer who suspects you of being under the influence will ask you a series of questions that seem harmless, like where you’re coming from, what time you started on your way, where you’re going, what you had to eat, if you’re diabetic (all of these are dangerous questions).  He will then ask you to step out of the car and do between 3-5 field sobriety tests.  Finally, he will ask you to take a breathalyzer.  If you are arrested, you will be taken to the station, given a warning about the consequences of
refusing to take another alcohol test, and asked to submit to either another breath test or a blood test.

How the DUI Investigation Catches People

Just speaking to the officer is already giving him more information than you want to: he can smell your breath.  So keep your window rolled up, try not to talk directly at him, and make sure not to fumble when you’re getting your license and registration out to hand over to him.

All of his friendly questions are nails in your coffin.  You should not answer any of them.  He is trying to establish all the facts he needs for a forensic toxicologist to determine your blood alcohol level even without any breathalyzer.  How long you have been driving, what you’ve had to eat, how much you’ve slept, and your medical conditions all contribute to the forensic toxicologist’s analysis.  Think of it like a big equation: a + b + c + d + e + f + g + h = your blood alcohol level.  If the officer can learn what a, b, c, d, e, f, g, and h are, he can calculate your BAC.  He’s just trying to make it sound like he’s interested so you’ll tell him the answers.  But if he has nothing to fill in for any of those variables, he has a much harder time figuring out your BAC.

The field sobriety tests are impossible to pass.  That’s right, impossible to pass.  Because they are not pass/fail tests.  You don’t get to go home if you do well.  The officer is just putting you through pointless exercises so he can see if you’re tilting your head back or swaying while you think the test is whether you can touch your fingers to your nose.  Each test has specific clues the officer is looking for, and they’re never limited to what you think the test is about.  So don’t agree to do the tests.  They’re unfair and they’re rigged against you.  And they’re optional!  The officer will say anything to try to get you to change your mind once you refuse to do the tests, but that should be a big red flag: he plans to arrest you no matter what!  He just doesn’t have enough evidence yet to make sure you get convicted.

The field breathalyzer is also optional – and highly untrustworthy.  There has been a big push lately at certain law enforcement agencies to ensure that their field breathalyzers are accurate, but it’s not guaranteed, and a slight lack of calibration can mean the difference between a DUI conviction and no DUI conviction.

The Only Mandatory Test for DUI
The only thing you have to do to cooperate with law enforcement is to take a breath or blood test after you’ve been arrested, at the police station. You agreed to do this in exchange for having a driver’s license issued by the state.  If you refuse the station test, you will be sentenced to two days in jail and your license will be automatically suspended for one year – even if you later prove you were 100% sober.  If you don’t have a driver’s license anyway, then don’t take the test!  Another time to refuse the test is if you are someone who does not need your license all that frequently, such as college students or people who usually walk or take public transportation.
Defenses to DUI
The possible defenses to a DUI are almost too numerous to list.  It all depends on the specific facts of the case.  A diabetic, for instance, may have a strong defense if for no other reason than that he or she is diabetic.  If the officer did not directly observe the defendant operate the car, such as when there has been an accident or they found the person parked on the side of the road, we use what’s called the “no-driving defense” – in other words, the prosecution can’t prove the defendant actually drove the car because no one saw it happen.  There is also a “rising BAC” defense if the police cannot establish a solid timeline as to when the defendant began and stopped drinking and exactly what time the driving occurred.  This defense argues that the defendant may have had a BAC that eventually rose to a level that was above the legal limit – but that the legal threshold was crossed after the defendant had already been pulled over.  Then there is attacking the accuracy of the machines that test the BAC.  The list goes on.