You go, Girl!

"We help people to get paid for their hard work" is one of R & J's oft-quoted mottos. Some people arguably deserve it more than others. Consider the case of Vilma Serralta, who recently made headlines when she sued a wealthy Atherton couple for unpaid overtime.


Ms. Serralta alleges that she worked 14-hour days, six days per week. She performed various glamorous tasks including (but not limited) to cleaning bathrooms, washing windows, cooking, doing laundry, and caring for a small child. For this she was apparently paid about $250.00-$350 per week. Oh--and she got to live in the house.


So anyway, she got fired, allegedly for having left a chicken bone in the sink. She must have talked to someone who clued her in to the fact that she had been exploited (to say the least) and voila, a lawsuit is born. She is being represented by attorneys from Legal Aid in San Francisco.


It probably is foolish of me to say this, but I wish that she was my client. What fun we would have! Nevertheless, I wish her the best of luck and I hope she collects every penny due.

Musings on annoying discovery tactics

In January I was busy completing my mandatory continuing legal education ("MCLE")requirements. It's not bad, 25 hours every three years, and minimum amounts in ethics (Ethics? Lawyers? Hah! some might say), detection of substance abuse and elimination of bias.


One nice thing is that one can "attend" a CLE session without leaving the comfort of one's office. One weekend I watched an online video produced by the California State Bar, modestly entitled "Best Practices for Winning Litigation and Trial--Practical Approaches to Perplexing Discovery Problems...." There actually was a lot more in the title but to reprint it here would not be a good use of my cyber space.


So there I was, watching the panel, the typical lineup of a plaintiff's attorney, a defense attorney, and a judge or two. It was fairly uneventful until the defense attorney advised the attendees to include an objection based on privilege (e.g. attorney-client) when responding to a document request, even when the attorney is unaware of any documents called for in the request that are protected by the privilege. According to this person (whom I am charitably refraining from naming) it's a good idea to include this as "general objection" and, because "you already know there aren't any documents, you don't have to worry" about producing one of those bothersome privilege logs.

This caught my attention, and not in a good way. I absolutely detest boilerplate objections like that and it has been my experience that they are most often used by big firm attorneys on behalf of big cheese clients.

"Not so fast," you say. "Isn't it better to state the objection "just in case," in order to "preserve" it? My instinct was "no" but, just to be thorough, I asked an expert: the Honorable Socrates P. Manoukian, the Santa Clara County Superior Court judge who presides over the discovery calendar. He said that I had touched a "sore point" and he condemns the practice of "blanket" objections in definite terms.

"California's Discovery Act does not authorize "general objections." Objections must be stated separately in response to each interrogatory and inspection demand. (CCP § 2030 .210(a)(3) (interrogatories); § 2031.210(a)(3) (requests for production); § 2033.230(b) (requests for admissions.)" Judge Manoukian took the trouble to provide a number of citations to cases wherein various appellate courts have roundly condemned the use of "general" or "blanket" objections. He also pointed out that such objections are not only improper, they are unethical. "It is a violation of an attorney's duties under Business & Professions Code, § 6068(d) to assert objections to requests for documents when those documents do not exist or are not in the responding party's possession." Bihun v. AT&T Information Systems (1993) 13 Cal.App.4th 976, 991 fn.5 (objecting when no documents exist is "bad faith") (disapproved on other grounds in Latkin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.)

I am happy to report that the plaintiff's lawyer in the seminar that I was watching disagreed with the "just in case" objection tactic. Yay plaintiffs!

In short: when you are responding to discovery and you need to know how to respond, just read the code. Everything you need is there. Don't make objections unless you believe (in good faith) that a basis for the objection exists. Using a lot of fancy words doesn't make you a good attorney; using your head is a better idea.

Our Cat, Jeri

Our cat, Jeri, died today. I feel compelled to say a few words....

When we got Jeri, we were newly married and living in our first apartment in Los Gatos. I had never owned a cat before but Jon had and he really wanted a cat. He did not however want to go out and get one. The cat had to come to us. In a "if you build it, he will come" kind of moment, Jon said "if we send out a 'we want a cat' vibe, a cat will come to us."

Not more than a month later, a small gray cat, about a year old, appeared on our balcony. We had no idea where she was from, but Jon promptly gave her a snack and she started stopping by regularly. One night, when we got home from work, she was waiting on our stairs. As we walked up, she made a little chirping noise, ran to the front door and sat in front of it with an expectant look on her face. We opened the door, she ran in, and she would not leave. We put her out in the morning and she stayed outside the door, meowing, until we let her in again. That night, she was waiting by the front door again.

We finally learned that she belonged to another tenant from the other end of the complex. They called her "Mickey," although we had already started calling her "Jeri," as we were not sure of her gender and she was gray like Jerry Garcia. Her previous owner (a nine-year-old girl) had recently acquired a kitten and I guess this was highly insulting to Mickey/Jeri. She simply would not stay in a home with another cat. Ultimately, they agreed to give her to us and when we bought our house some months later, she came with us and that was that.

That was 18 years ago. Jeri loved it at our house and appointed herself Chief Guard. She got in a lot of fights because she tolerated no cat trespassers. She loved to sit up on our roof and survey her territory.

She was a good hunter and like most cats, very athletic. Once we watched her prowling after a low-flying dragonfly in our yard. Back and forth she went, until suddenly, she leaped off the ground, flipped over, caught the dragonfly with her paws and legs and flipped back over to land on the lawn with her catch. Then she sauntered off, very casual, as if to say "Oh that? Just fooling around...."

She was always a petite cat, never weighing more than 8.5 pounds. Her fur was incredibly soft, like a chinchilla's. She was very fussy about water and regularly tormented Jon by trying to drink from his glass at night. She also was exceedingly fond of fish, especially salmon and tuna. We also could not turn our backs on any glass or bowl that had milk or yogurt in it, or we would find Jeri indulging her passion for dairy.

She remained hostile to other animals all her life and in all candor, was not the friendliest cat in the world. Some referred to her as The World's Crabbiest Cat, in fact. When we got our first dog, she punished us by refusing to sit on our laps or to let us hold her for at least a year. Finally she got over it. She tolerated our daughter but I think she viewed her as yet another interloper. When we finally got our second dog, she seemed resigned to the fact that we simply were not a one-pet home. The dogs knew better than to get too close, as she would not hesitate to give them a nasty swipe with a claw if they bugged her.

Other than the occasional abscess caused by fighting with other cats, Jeri was never sick. Over the last couple of years, though, she got skinnier and skinnier and developed a yowling meow that startled us out of bed at 5:00 a.m. more often than not. Our vet said that it was her thyroid and we faithfully gave her thyroid medication twice a day, but she got thinner still.

Recently, we found out that her kidneys were failing, which is apparently very common with older cats. Fortunately she was not in pain or distress, she just gradually stopped eating and drinking and she was very tired. She did not leave her little kitty bed, which we had put on a heating pad on our bed, the last four days of her life. Today she just drifted off in her sleep.

We will sorely miss Jeri. She was a great old girl; I don't know how old 19 is in cat years but I imagine it's pretty darn old. People often stopped me in front of our house to tell us that they admired her and I once found a note on my porch that simply said "your cat is nice." I liked that note.

As Samuel Johnson once said, Jeri was "a very fine cat, a very fine cat indeed." I will cherish her memory forever.

Legal writing doesn't have to be dull

I am a good attorney for different reasons. One is that I am a pretty good writer. I have always liked writing; in fact I once wanted to be a journalist, but that is another story.

My legal mentor always advised me to write short, active-tense sentences and to avoid "legalese" at all costs. Some examples: "It has come to my attention" (BAD) vs. "Now I know." (GOOD). "The answer to your question is in the negative" (BAD) vs. "no." (GOOD). "A response to your demand is being considered by our client" (BAD) vs. "Our client is thinking about your demand." (GOOD).

I once was warned that I would be fired if I used the phrase "prior to" intead of "before." I also once wrote a letter in response to a three-page missive from opposing counsel that simply said: "No." When I got a second, two-page letter expressing counsel's outrage at this, I responded with another letter that said: "wrong again."

I love stuff like that, especially when used against attorneys who write "faux confirming letters," i.e. letters that purport to confirm what you just agreed to on the telephone, but which in fact add in all sorts of terms and conditions that the other side thought of after hanging up.

Anyway, not too long ago I was reading some new appellate court opinions (we never stop working here at R & J!) and I came across a wonderful opinion that deserves to be shared with anyone who cares about good writing, especially good legal writing. It was written by Justice William Bedsworth of the Fourth Appellate District and it is the first paragraph of the opinion (Engle v. Copenbarger and Copenbarger) that I especially admire:

"Cautionary tales rarely have happy endings. From the 19th Century German classic, “The Dreadful Story of Pauline and the Matches,” in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, “Reefer Madness,” the protagonist almost never does well in them. This case is no exception. We present here a cautionary tale, published, like all of its ilk, in the hope of providing a warning."

Words fail me. I celebrate this paragraph for its elegance, humor and pithiness.

Engle is also interesting from a practice standpoint, in that it clarifies an important rule applying to "998 offers." (Offers to settle made pursuant to a section of the California Code of Civil Procedure). If you make a 998 offer and you intend it to include the other party's attorney's fees, you'd better spell it out in the offer. Broad language like "all claims of whatever nature" or "all relief sought" does not, to use the vernacular, "cut the mustard."

Let's hear a shout-out for brevity and elegance in legal writing. Thanks for reading.

Nora's First Blog Post

Thank you for taking the time to read my blog. I am new to the blogosphere but as a person who loves writing I think I will enjoy this. Since I am blogging in conjunction with the promotion of my law practice, I am a little worried about ennui setting in…can I really only write about law??? But, I’m going to give it a shot.

Let’s start with the basics. I practice law here in beautiful downtown Campbell with my husband and partner, Jonathan Jackel. I like to think of us as a real-life “Adam’s Rib,” except that unlike Spencer Tracy and Katherine Hepburn, we are real people, not actors of 60 years ago. And we do not practice criminal or family law... and we are always on the same side. And neither of us looks like them. But other than that, it’s exactly the same!

How to describe our practice? Jon likes to say that he helps people get paid for their hard work. I like to say that I help people who have been injured, either physically or financially (often both). We like representing plaintiffs but we also like representing defendants. It’s amazing that none of my plaintiffs’ cases are frivolous and yet none of the lawsuits that I defend have any merit whatsoever. (Perhaps the reader will by now discern that vigorous advocacy is my passion). In the coming weeks, I will talk more specifically about wage law and personal injury litigation.

All kidding aside, I have to say that I really love being a trial lawyer and I absolutely don’t get how some people think that being called a trial lawyer is an insult. Watch this space for a further rant (sorry, calm and rational discussion) about this subject.

Jon and I really like being on our own and being a small firm does not bother us a bit. We pick and choose our clients carefully and because we do just about everything around here ourselves, our clients get lots of personal attention.

Thanks for reading this and please stop by often!

Nora Rousso