TheRoad Ahead - Los Angeles County Bar Association
THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATIONINVEST G 20IG UID 18AT EIV TOESERVICESJULY/AUGUST 2018 / 5EARN MCLE CREDIT2017TAX REFORMpage 14PLUSGOOD NEWSFOR COPYRIGHTCLAIMANTSpage 28BankingCannabisCashpage 2214OnDirect:OnDirect:Tom Girardipage 10By the Book:The SunDoes Shinepage 2845The RoadAheadLos Angeles lawyer Brian S. Kabateckis the 2018-19 president of theLos Angeles County Bar Associationpage 8
F E AT U R E S14 Tax Cuts and Jobs Act of 2017BY DANIEL L. HESSThe pro-business enactment will impact nearly every tax-paying andtax-exempt entity in the United States as well as many outside the countryPlus: Earn MCLE credit. MCLE Test No. 280 appears on page 17.22 Cannabis, Cash, and CrimeBY RICHARD P. ORMONDBecause marijuana is illegal under federal law, related businesses are forced tooperate on a cash-only basis, making them prime targets for robberies,kidnappings, and extortion28 Death of Copyright 3: The AwakeningBY STEVEN T. LOWEIn literary infringement cases, courts continue to rule in favor of defendants atleast 95 percent of the time, but change is afoot34 Special SectionSemiannual Guide to Investigative ServicesLos Angeles Lawyerthe magazine ofthe Los Angeles CountyBar AssociationJuly/August 2018Volume 41, No. 5COVER PHOTOS CREDIT:TOM KELLERD E PA RT M E N T S8 President's PageThe road ahead: Where LACBA is andwhere we are going45 By the BookThe Sun Does Shine: How I Found Lifeand Freedom on Death RowBY BRIAN S. KABATECKREVIEWED BY STEPHEN F. ROHDE10 On DirectTom Girardi48 Closing ArgumentDeposing witnesses: Who's lying now?INTERVIEW BY DEBORAH KELLYBY FRANKLIN R. GARFIELD12 Barristers TipsGetting involved with LACBA BarristersBY JESSICA G. GORDONLOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of 14 included in theAssociation membership dues. Nonmember subscriptions: 38 annually; single copy price: 5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.07/08.18
Visit us on the internet at www.lacba.org/lalawyerE-mail can be sent to lalawyer@lacba.orgFollow Los Angeles Lawyer on Twitter at @LALawyerMagEDITORIAL BOARDChairRENA KREITENBERGArticles CoordinatorTo Be AnnouncedAssistant Articles CoordinatorTYNA ORRENSecretaryTo Be AnnouncedImmediate Past ChairJOHN C KEITHEMPLOYMENT LAW REFERRALSPaying Highest Referral Fees (Per State Bar Rules)Honored to receive regular employment referrals fromover 100 of Californiaʼs finest attorneysStephen Danz& Associates877.789.9707Main office located in Los Angeles and nearby offices in Pasadena,Orange County, Inland Empire & San DiegoStephen Danz, Senior Partner11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049JERROLD ABELES (PAST CHAIR)TOM K. ARASCOTT BOYERCHAD C. COOMBS (PAST CHAIR)THOMAS J. DALYGORDON K. ENGSTUART R. FRAENKELMICHAEL A. GEIBELSON (PAST CHAIR)SHARON GLANCZGABRIEL G. GREENTED M. HANDEL (PAST CHAIR)STEVEN HECHT (PAST CHAIR)DENNIS F. HERNANDEZJUSTIN KARCZAGMARY E. KELLY (PAST CHAIR)KATHERINE KINSEYCAROLINE SONG LLOYDPAUL S. MARKS (PAST CHAIR)SANDRA MENDELLCOMM’R ELIZABETH MUNISOGLUCARMELA PAGAYGREGG A. RAPOPORTJACQUELINE M. REAL-SALAS (PAST CHAIR)LACEY STRACHANTHOMAS H. VIDALSTAFFEditor-in-ChiefSUSAN PETTITSenior EditorJOHN LOWEArt DirectorLES SECHLERDirector of Design and ProductionPATRICE HUGHESAdvertising DirectorLINDA BEKASSenior ManagerMELISSA ALGAZEAdministrative CoordinatorMATTY JALLOW BABYCopyright 2018 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or inpart without permission is prohibited. Printed by R. R.Donnelley, Liberty, MO. Member Business PublicationsAudit of Circulation (BPA).The opinions and positions stated in signed materialare those of the authors and not by the fact of publicationnecessarily those of the Association or its members. Allmanuscripts are carefully considered by the EditorialBoard. Letters to the editor are subject to editin4 Los Angeles Lawyer July/August 2018
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.orgLACBA EXECUTIVE COMMITTEEPresidentBRIAN S. KABATECKPresident-ElectRONALD F. BROTSenior Vice PresidentTAMILA C. JENSENVice PresidentBRADLEY S. PAULEYTreasurerWILLIAM L. WINSLOWVice President Of Diversity/Affiliate OutreachPHILIP H. LAMAssistant Vice PresidentFELIX THOMAS WOOAssistant Vice PresidentTo Be AnnouncedAssistant Vice PresidentKRISTIN ADRIANImmediate Past PresidentMICHAEL E. MEYERBarristers PresidentJESSICA GORDONBarristers President-ElectVICTORIA MCLAUGHLINExecutive Director/SecretarySTANLEY S. BISSEYChief Financial & Administrative OfficerBRUCE BERRABOARD OF TRUSTEESSUSAN J. BOOTHJESSE A. CRIPPSGARY A. FARWELLTANYA FORSHEITJO-ANN W. GRACEJOHN F. HARTIGANAMOS E. HARTSTONDANIEL T. HUANGRICHARD L. KELLNERJENNIFER W. LELANDEVE LOPEZMATTHEW W. MCMURTREYF. FAYE NIAANN I. PARKMICHAEL R. SOHIGIANEDWIN C. SUMMERSKENDRA THOMASKEVIN L. VICKAFFILIATED BAR ASSOCIATIONSBEVERLY HILLS BAR ASSOCIATIONCENTURY CITY BAR ASSOCIATIONCONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELESCULVER MARINA BAR ASSOCIATIONGLENDALE BAR ASSOCIATIONIRANIAN AMERICAN LAWYERS ASSOCIATIONITALIAN AMERICAN LAWYERS ASSOCIATIONJAPANESE AMERICAN BAR ASSOCIATIONJOHN M. LANGSTON BAR ASSOCIATIONTHE LGBT BAR ASSOCIATION OF LOS ANGELESMEXICAN AMERICAN BAR ASSOCIATIONPASADENA BAR ASSOCIATIONSAN FERNANDO VALLEY BAR ASSOCIATIONSANTA MONICA BAR ASSOCIATIONSOUTH BAY BAR ASSOCIATIONSOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATIONWOMEN LAWYERS ASSOCIATION OF LOS ANGELESLos Angeles Lawyer July/August 2018 5
The July/August issue of Los Angeles Lawyer celebratesthe beginning of a new year at the Los AngelesCounty Bar Association, a time of new leadership,new section and committee appointments, new goals, andnew directions. LACBA has weathered big changes in recentyears and more change is coming. “Change is hard. Change is tough. Change isgood,” writes LACBA President Brian Kabateck, who took office July 1. In hisPresident's Page this month, Brian lays out a detailed “roadmap” to greaterfinancial stability and prosperity for LACBA in the year ahead.New Barristers President Jessica Gordon proudly notes that the BarristerSection now has more than 11,000 members, making it the largest of LACBA’s26 practice sections. The Barristers have an ambitious agenda for the yearahead and myriad opportunities for new and young lawyers to participate.The pro-business Tax Cuts and Jobs Act of 2017 signed into law by PresidentTrump in December will impact nearly every tax-paying and tax-exempt entityin the United States as well as many outside the country. LACBA member DanielL. Hess, a tax attorney and CPA, walks us through key provisions that affectprofessionals, high-net worth individuals, and businesses.California is the largest legal marijuana market in the country, but becausepot is illegal under federal law, federally insured banks cannot handle moneyfrom marijuana sales without risking criminal charges. In his article, “Cannabis,Cash, and Crime,” LACBA member Richard P. Ormand, who represents businesses, banks, and investors in this emerging industry, examines the “the uglypatchwork of inconsistent regulatory and legal approaches taken by differentfederal agencies” that create a dangerous climate for marijuana entrepreneursforced to operate on an all-cash basis.In 2010, Los Angeles Lawyer published an article titled “Death of Copyright”by Los Angeles intellectual property lawyer Steven T. Lowe. Of the 48 copyrightinfringement cases against studios or networks that resulted in a final judgment,“the studios and networks prevailed in all of them,” Lowe wrote. Eight yearslater, Steven is back with an updated report on the state of copyright infringement cases. This time, the news is a little better.Where were you on this day in 1988? Imagine that you were arrested, wronglyconvicted of murder, and that you spent the next 30 years on death row.Constitutional lawyer Stephen F. Rohde reviews The Sun Does Shine: How IFound Life and Freedom on Death Row, Anthony Ray Hinton's harrowingstory of spending half his life in just such a nightmare.In the great 1957 courtroom drama, Witness for the Prosecution, CharlesLaughton cross-examines Marlene Dietrich and, at the end, expresses hisopinion of her testimony: “The question is whether you were lying then or areyou lying now or whether in fact you are a chronic and habitual liar.” In hisClosing Argument, Los Angeles family law attorney and LACBA memberFranklin R. Garfield narrates how he attempted to fulfill a dream that somedayhe would get to deliver that line in court.Deborah Kelly’s “On Direct” interview with top trial lawyer Tom Girardirounds out our coverage.Rena E. Kreitenberg is the 2018-19 chair of the Los Angeles Lawyer Editorial Board. She is a partner in the Los Angeles law firm of Mesisca Riley & Kreitenberg LLP where her practice focuses oncivil litigation and appeals, emphasizing real estate, negligence, and employment actions.6 Los Angeles Lawyer July/August 2018
president’s pageBY BRIAN S. KABATECKThe Road Ahead: Where LACBA Is and Where We are GoingIF YOU BELONG TO ENOUGH VOLUNTEER ORGANIZATIONS, youhave read countless messages from a new president taking chargeof an old organization. On a lot of those pages, the new presidentpromises to keep up the good work and hold the organizationsteady for the next year. This is not one of those.Change is hard. Change is tough. Change is good. A year ago,Michael Meyer took over as president of the Los Angeles CountyBar Association (LACBA) when things were in turmoil. Michaelhas made us stronger, ushering in an era of openness and transparency. We need to continue to evolve our organization in thecoming year. This will be our road map.gram by donating money to LACBA and helping us in this capitalcampaign to retire the debt. We are going to look to formerLACBA leaders to run this program.Member OutreachWhere We Are: We will institute a new dues structure for allmembers in the 2019 LACBA year to encourage new membershipand make the organization stronger. LACBA sections have beenencouraged to grow membership in both the sections and inLACBA by instituting a new “bring a guest” program. TheFiscal ResponsibilityDuring the coming year, you can expect more change. Not everyoneWhere We Are: Under Michael’s leadershipand with the work of people such asBill Winslow and John Hartigan, LACBAmay like the change, some people may be resistant to the change,has a balanced budget. The association’sexpenses and operation costs have beenbrought under better control. Michael’sbut we must change and move forward.installation event in December for the firsttime in many years not only broke evenbut also made a 90,000 profit, which wasdonated to LACBA’s Domestic Violence Legal Services Project. Bridging the Gap program, which introduces new lawyers to theLACBA’s charitable arm, Counsel for Justice, is raising money practice of law, was reinstituted in April after being dormant forand by the end of the year will be on track to fund all operational many years.Where We Are Going: In my concurrent roles as president ofcosts and expenses. In addition, we have given our sections newfreedom to run their own programs as long as they break even LACBA and chairman of the Loyola Law School Board ofDirectors, I have a growing appreciation for the next generationby the end of the year.Where We Are Going: We must exercise austerity in operating of lawyers. They need to find LACBA relevant. Vibrant youngLACBA. We must do more with less while controlling costs and lawyers who want to be great lawyers and want to embrace theexpenses at a time when people are being asked to give us their practice of law in all aspects need a home where they can sharehard-earned dollars in the form of membership dues. We need ideas and work with their colleagues. We need to do a better jobto do the best we can to spend that money wisely. LACBA of providing that forum.Our new dues structure will make LACBA membership moreExecutive Director Stan Bissey and senior staff are coming upaffordable for newer lawyers. Not only are first-year new admitteeswith innovative ways every day to save money.Counsel for Justice needs to become not only completely inde- now given free membership to LACBA, but second-year lawyerspendent but also a fund-raising machine. Its nonprofit programs are extended the same free membership. We will continue toshould be wildly attractive to benefactors in Los Angeles County— offer free membership for all law students in California.including those who are not lawyers—who are interested in protecting the victims of domestic violence, assisting those living The Organizationwith HIV and AIDS, helping veterans in court, addressing immi- Where We Are: We are privileged to have a phenomenal newgration issues in a tumultuous time, and the continuing problem executive director, Stan Bissey, former executive director of theof providing legal services to those less fortunate. There is no California Judge’s Association. In addition, we now have a vicereason Counsel for Justice each year cannot raise millions to president, Philip Lam, dedicated exclusively to diversity andsupport these programs from individual donors, members ofLACBA, and foundations and charitable organizations.The 2018-19 president of the Los Angeles County Bar Association, Brian S.Finally, we need to launch an aggressive capital campaign. Kabateck is founder and managing partner of Kabateck Brown Kellner LLP inLACBA carries 1 million to 2 million in debt on a revolving Los Angeles where he practices in the areas of personal injury, insuranceline of credit. This needs to be retired. The most successful and bad faith, pharmaceutical litigation, wrongful death, class action, mass torts,profitable lawyers in Los Angeles need to participate in this pro- and disaster litigation.8 Los Angeles Lawyer July/August 2018
inclusion. Steve Statathos joins us as parttime general counsel in recognition thatLACBA does not need a full-time generalcounsel on staff. We have begun usingmore volunteer lawyer members as outsidecounsel for legal matters that are relevantand important to LACBA. In addition,there are no executive committee sessionsof the LACBA Board of Trustees.Where We Are Going: The sectionsneed to continue with complete independence and to be allowed to grow and succeed while driving more prospective members to join LACBA.The association has many committees,and they have to be analyzed and considered. Some may be stale while others needto be revitalized to become relevant to thepeople of the County of Los Angeles, notjust lawyers. We need to immediatelylaunch a deep dive into the bylaws andpolicies and procedures of LACBA. Whilethat may seem dry and uninteresting tosome, it is critical for us to modernize ourrules and make them easy to understandand follow.Our magazine, Los Angeles Lawyer,while revered by some, needs a facelift.We plan to explore the possibility of addingshorter intellectual articles, a wider rangeof topics, and human interest stories aboutlawyers of all ages succeeding in their personal and professional lives.We must increase access though digitalLACBA, membership online, e-membershipfor out-of-county members, outreach toaffinity associations and other associations,and membership summits. We will continuethe outstanding work we are doing throughthe Domestic Violence Legal Services Project, Immigration Legal Assistance Project,Veterans Legal Services Project, and AIDSLegal Services Project, supported by theCounsel for Justice with the full supportof the LACBA leadership.REAL ESTATE DISPUTE CONSULTINGWARONZOF ASSOCIATESTimothy R. Lowe, MAI, CRE, FRICS economic damages lease disputes fair compensation land use disputes property valuation partnership interest value lost profits reorganization plan feasibilityWaronzof Associates, Incorporated400 Continental Boulevard, Sixth FloorEl Segundo, CA 90245310.322.7744 T 424.285.5380 Ftlowe@waronzof.comwww.waronzof.comMoving ForwardThis is just the beginning of the neededchange to bring LACBA forward. Duringthe coming year, you can expect morechange. Not everyone may like the change,some people may be resistant to thechange, but we must change and moveforward.I want to single out Michael Meyer forthe phenomenal job he did as LACBA president and will continue to do over thecourse of the next year as the immediatepast president. Michael, at a time whenhe had no need to give back selflessly tothis organization, rolled up his sleeves,made a huge personal commitment, andsaw his life change. I urge all of you toreach out to Michael and thank him. nLos Angeles Lawyer July/August 2018 9
on directINTERVIEW BY DEBORAH KELLYThomas V. Girardi Trial Attorneyary of 1965. What has stayed the same foryou? It’s so exciting from the first trialuntil today. When the jury buzzes threetimes, it means you’re about to get yourreport card.What is the biggest change in the lawyou’ve noticed over that last 50 years?When I was a young lawyer, lawyerstreated each other nicely. The vast majority of the legal profession—certainly adversarial—were nice. Now, there is somuch hostility—even on things that areroutine. There has been a terrible breachwith respect to decency in the trial factor.THOMAS V. GIRARDI, founding partner ofGirardi & Keese, has obtained numerous multimillion dollar verdictsand settlements, handling claims involving wrongful death, commerciallitigation, products liability, bad faithinsurance, and toxic torts. In 2003,he was inducted into the TrialLawyer Hall of Fame by the California State Bar. Girardi is a member ofthe board of directors and formerpresident of the International Academy of Trial Lawyers. He is also thefirst trial lawyer to be appointed tothe California Judicial Council, thepolicymaking body of the statecourts.What makes you the happiest? To see awonderful law firm, everybody gettingalong so well, and the good work we doto change bad stuff that happens.You attended Loyola Law School and finished with an L.L.M. from New York University School of Law. Why did you want tobecome a lawyer? Perry Mason was ontelevision, with his secretary, Della Street,and investigator, Paul Drake. I said,“Man, that’s what I want to do. I want tobe Perry.”You were admitted to practice law in Janu10 Los Angeles Lawyer July/August 2018Why? I’m not sure. Maybe there are toomany lawyers, and there becomes a bigdesire to bill the heck out of it.In 1970, you were the first lawyer in California to win 1 million for a medical malpractice case. What did that feel like? Incredible! This young person I representedwas the president of Compton HighSchool. He got in a fight and was takento the hospital. The hospital called hisparents and said, “Percy is drunk. Cometake him home.” The mom and dad saidhe didn’t drink, but the hospital loadedPercy into the back of their car. He wokeup a quadriplegic.Do you prepare differently for high-profilecases? I prepare the clients differently;they have to know they are beingwatched.Your firm has recovered more than 11 billion in settlements and verdicts. What isyour advice to young attorneys? Makesure that you love it. It’s an unbelievableamount of work, but it’s a fun job. I’mjust as happy about doing things today asI was when I first started.Were you frightened the first time youstood in front of a judge? Of course. Ifyou don’t have some emotion, you’re notreally involved.Do you sleep the night before a trial? I canbut not for very long.What is misunderstood about your practice?
Los Angeles Lawyer July/August 2018 5 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org LACBA EXECUTIVE COMMITTEE
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6 Los Angeles LawyerJune 2005 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-2533 Telephone 213.627.2727 / www.lacba.org
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