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Official Publication of the Santa Barbara County Bar Association January 2018 • Issue 544
Santa Barbara Lawyer
2018 SBCBA President Jeff Chambliss with Michelle Seagraves
2 Santa Barbara Lawyer
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January 2018 3
4 Santa Barbara Lawyer
Santa Barbara LawyerA Publication of the Santa Barbara
County Bar Association©2018 Santa Barbara County Bar Association
CONTRIBUTING WRITERSJeff Chambliss
Lawrence J. ConlanJennifer Gillon Duffy
Robert SangerNeil Varghis, MD
EDITORJennifer Gillon Duffy
ASSISTANT EDITORLida Sideris
MOTIONS EDITORMichael Pasternak
VERDICTS & DECISIONS EDITOR
Allegra Geller-Kudrow
PHOTO EDITORMike Lyons
DESIGNBaushke Graphic Arts
PRINTINGPrinting Impressions
Submit all EDITORIAL matter [email protected]
with “SUBMISSION” in the email subject line.
Submit all VERDICTS AND DECISIONS matter to:Allegra Geller-Kudrow at
Submit all MOTIONS matter to Michael Pasternak at [email protected]
Submit all ADVERTISING toSBCBA, 15 W. Carrillo Street,
Suite 106, Santa Barbara, CA 93101phone 569-5511, fax 569-2888Classifieds can be emailed to:
Santa Barbara County Bar Association www.sblaw.org
2018 Officers and DirectorsOfficers
JEFF CHAMBLISSPresidentCriminal Defense Attorney133 E. De La Guerra St. #188Santa Barbara, CA 93101T: (805) [email protected]
AMBER HOLDERNESSPresident-ElectOffice of County Counsel105 E. Anapamu Street, #201Santa Barbara, CA 93101 T: (805) [email protected]
ELIZABETH DIAZSecretaryLegal Aid Foundation301 E. Canon Perdido Street Santa Barbara, CA 93101 T: (805) [email protected]
ERIC BERGChief Financial Officer Berg Law Group3905 State St Ste. 7-104Santa Barbara, CA 93105T: (805) [email protected]
MICHAEL DENVERPast PresidentHollister & BracePO Box 630Santa Barbara, CA 93102T: (805) [email protected]
Directors
LETICIA ANGUIANOMechanics Bank1111 Civic Drive, Suite 204Walnut Creek, CA [email protected]
JOSEPH BILLINGSAllen & Kimbell, LLP317 E. Carrillo StreetSanta Barbara, CA 93101T: (805) [email protected]
DEBORAH BOSWELL Mullen & Henzell LLP112 Victoria StSanta Barbara, CA 93101T: (805) [email protected]
LARRY CONLANCappello & Noël LLP 831 State St Santa Barbara, CA 93101 T: (805) 564-2444 [email protected]
IULIA I. DAVIES 800 Anacapa St, Suite A Santa Barbara, CA 93101T: (858) [email protected]
JENNIFER GILLON DUFFYFell, Marking, Abkin, Montgom-ery, Granet & Raney LLP 222 E Carrillo St #400 Santa Barbara, CA 93101T: (805) [email protected]
STEPHEN DUNKLESanger, Swysen & Dunkle125 E. De La Guerra, Suite 102Santa Barbara, CA 93101 T: (805) [email protected]
ELVIA GARCIALaw Offices of Gregory I. McMurray PC 1035 Santa Barbara St Ste 7 Santa Barbara, CA 93101T: (805) [email protected]
LAUREN JOYCE Buynak, Fauver, Archbald, & Spray LLP 820 State St. Fl 4Santa Barbara, CA 93101T: (805) [email protected]
JEFF SODERBORGBarnes & Barnes 1900 State St Ste MSanta Barbara, CA 93105T: (805) [email protected]
ROSALEEN WYNNELaw offices of James F. Cote222 E. Carillo St. Ste 207Santa Barbara, CA 93101T: (805) [email protected]
LIDA SIDERISExecutive Director15 W. Carrillo Street, Ste 106Santa Barbara, CA 93101T: (805) 569-5511Fax: [email protected]
Mission StatementSanta Barbara County Bar Association
The mission of the Santa Barbara County Bar Association is to preserve the integrity of the legal profession and respect for the law, to advance the professional growth and education of its members, to encourage civility and collegiality among its members, to promote equal access to justice and protect the independence of the legal profession and the judiciary.
January 2018 5
Santa Barbara LawyerOfficial Publication of the Santa Barbara County Bar Association January 2018 • Issue 544
Articles 6 Message from the Editor, By Jennifer Gillon Duffy
7 President’s Message, By Jeff Chambliss
8 2018 Bench and Bar Conference Preview: Climate Change and the Law, By Lawrence J. Conlan
13 Philanthropy Corner, By Jennifer Gillon Duffy
16 The Jury and Forensic Evidence—Part I: Jurors and the Folk Heuristic, By Robert Sanger
20 Lawyers: Six Tips for Workplace Health, By Dr. Neal Varghis, MD
Sections
21 Classifieds
25 Section Notices
On the CoverSBCBA 2018 President Jeff Chambliss with Michelle Sea-graves. Photo by Mike Lyons.
GRANT REQUESTSThe Santa Barbara County Bar Association provides grants to projects that further its Mission Statement (please see page 4). Priority is given to requests where the funds will be used for the benefit of SBCBA members or for the benefit of individuals within Santa Barbara County.
Requests for grants shall be made in writing addressed to the SBCBA (15 W. Carrillo Street, #106, Santa Barbara CA, 93101) and include the following information:
Name of RequestorTotal Amount of Request
Reason for RequestDescription of exactly how the requested funds will be used and whether said request is time-sensitive.
6 Santa Barbara Lawyer
SBCBA
F
Message from the Editor: Giving BackBy Jennifer Gillon Duffy
Jennifer Duffy
or as long as I can remember, philanthropy has been a part of my life. When I was young, my mom was in the Junior
League, and I remember helping out with the Rummage Sale at Earl Warren Showgrounds every year with my own honorary apron. (I was very proud of that apron!) As I grew older, my mom and I were in the Santa Barbara Chapter of the National Charity League (“NCL”), which is a mother-daughter service organization for teen girls in seventh through 12 grades. I am now in NCL with my three teen daughters.
I believe it is so important, as attorneys, that we give back to the community we are so fortunate to call home. Giving back makes us better people while we help others. For that reason, the theme for the magazine this year is “Giving Back.”
As part of this theme, in each issue, I will highlight lo-cal non-profit organizations for readers to learn about and potentially support with their time, in a section called “Philanthropy Corner.” This month, the organizations be-ing highlighted are:
The Dream Foundation, which is the only national non-profit organization that grants final dreams to terminally-ill adults, and
Storyteller Children’s Center, which is a therapeutic preschool for homeless and at-risk children in Santa Barbara.
I hope you will take a moment and learn a little about these two organizations, which, to me, represent the book-ends of the beginning and the end of life.
I spend most Saturday mornings arranging flower bou-quets with the Dream Foundation’s Flower Empower Program. Through this program, recipients at retirement homes, in hospice, or others who just need some cheer re-ceive a delivery of flowers, a cookie, and a card handmade by a child. This program is truly my passion.
Storyteller Children’s Center captured my heart about 10 years ago. Now, I am on the Board. It is amazing what a vil-lage can do to support children who have been and continue to go through trauma. 2018 is Storyteller’s thirtieth year.
I am honored to have been asked to be the Edi-tor of this Magazine, and I hope that this philan-thropic focus will be help-ful to our community. If you have ideas about this theme, including volun-teer opportunities you would like me to mention, I welcome them.
I want to thank Eric Berg, our outgoing Editor, for his extensive efforts to make this magazine excellent throughout 2017 and for helping me with this transition. I also thank our Executive Director, Lida Sideris, and our publisher, Kathleen Baushke, for their invaluable service in producing this high quality, relevant magazine. We are lucky to have them both.
As we proceed through 2018, I ask each of you to con-sider writing an article (on any topic) for this publication, so that it can truly be reflective of our legal community. We also appreciate our advertisers and welcome additional advertisements that would be of interest to our readers.
As the page turns to 2018, a blank canvas awaits. We are an honorable and noble profession. Let’s, each of us, take time this year to give back.
Jenn Duffy is a Partner with Fell, Marking, Abkin, Montgomery, Granet & Raney, LLP, where she specializes in employment law and family law matters. She has a blended family of four children, three dogs, two cats, and a very patient husband.
January 2018 7
SBCBA
Jeff ChamblissT
President’s MessageBy Jeff ChamBliss
his is my fifth year on the Board of the Santa Bar-bara County Bar Association, and it has been a fascinating experience. Throughout my five years,
the Board has vigorously debated about the financial di-rection of the Bar Association. Thanks to the continued strong support of our 600 plus members, law firm sponsors, MCLE Section Chairs, the Santa Barbara Lawyer magazine, and Lawyer Referral Service, the Bar Association has over $400,00.00 in the bank, with slightly more than half of that earmarked as reserves. Every year I have been on the Board, income has exceeded expenses. This position of financial strength is due to the work of Past Presidents and our Executive Director Lida Sideris and her staff, whose salaries are paid by your dues.
Often the memory of Past President Donna Lewis is in-voked to remind the Board that in the not too distant past, the Bar Association was not fiscally sound and that Donna’s emphasis on profitable events helped the Bar move to where it is today. Thanks to her work and other Past Presidents, the Bar Association has the luxury of deciding what to do with funds in excess of a prudent reserve. This has been the subject of much discussion during Board Meetings, and successive Boards have decided the time had come to “Give Back” to the community. Within the last three years, for the first time, under strict guidelines, a grant program has been started, and in 2017, small grants totaling $18,000.00 were made.
The Bar Association funded the Santa Barbara Women’s Lawyers Food from the Bar Drive that ensures that the Foodbank of Santa Barbara County has sufficient funds to provide meals to school children who receive free meals during the school year but may go hungry in the summer when school is not in session. The Bar grant to the High School Mock Trial Competition paid for food and coffee for the Judges as well as helped the winning county team pay for their travel to and participation in the State and Na-tional championships. Past grants to the Legal Aid Society have funded new case management software and a HVAC system. The grant to the UCSB Mock Trial Team enabled
them to have a team last year by covering their national registration fee.
We look forward to con-tinuing the Grant Program in 2018. We are also dis-cussing the possibility of establishing a scholarship to the Santa Barbara & Ventura College of the Law. We are giving back to our Membership. I am very pleased to announce that, on Thursday Feb-ruary 22, 2018, the Bar Association will be hosting a reception for Chief Justice Tani Cantil-Sakauye in the Mural Room of the Santa Barbara Courthouse. The reception will feature a question-and-answer session with Judge Patricia Kelly, the first female Presiding Judge of the Santa Barbara County Superior Court. Other ideas under discussion are an Ice Cream Social in the Sunken Garden. I would like to have a Bar event in the Santa Ynez Valley so that North County members don’t have to travel so far to participate. Other events discussed focus on the importance of growing our membership by recruiting younger attorneys to join the Bar Association.
The Editor of the Santa Barbara Lawyer, Jennifer Gillon Duffy, has decided that the theme of this year’s Magazine will also be “Giving Back.” The nine women and seven men that make up your Bar Association Board of Directors are acutely aware of our fiduciary duty to the Membership. That awareness is balanced with desire for the Bar Associa-tion to give back to its membership and larger legal com-munity. I became a lawyer to help persons less fortunate, and in my mind, our profession is never nobler than when it is aimed at making our community a better place for all to live. Our Bar Association is strong and active due to its membership and all who volunteer their time to make it work. I thank all of you and welcome your suggestions as to how we can continue to build an even stronger Bar Association.
Mr. Chambliss graduated from Hastings College of Law in 1987 and joined the Office of the Santa Barbara County Public Defender in 1990. He left the Public Defender’s Office in 2017 having risen to the position of Chief Trial Deputy. He is currently in private practice in Santa Barbara and Ventura Counties defending indi-viduals charged with criminal offenses.
8 Santa Barbara Lawyer
Feature
2018 Bench and Bar Conference Preview: Climate Change and the LawBy lawrenCe J. Conlan
On January 20, 2018, the Santa Barbara County Bar Association will host its annual Bench and Bar Conference on climate change and the law.
Every year feels hotter than the last. Despite a few rainy winters, Santa Barbara remains in its seventh year of drought, and the fresh water supply is still critically low. High temperatures, dry air, and minimal rainfall increase fire risk. In the last three months alone, wildfires devastated areas of Northern and Southern California. The Thomas Fire spread smoke and ash across the county, and respirators became a new accessory for local residents. In early December, the thick, jaundiced air made Santa Barbara seem more like Beijing. Only few would argue these are not effects of climate change, and even fewer would argue that climate change does not result from human activ-ity.
Sea level rise is another effect of the changing climate, and an espe-cially important one in our coastal town. While less immediate and not as acutely visible as drought and wildfire, it is equally catastrophic. Sea level rise is caused by warmer surface air, higher ocean temperatures, and melt-ing ice. According to the recently completed Santa Barbara County Vulnerability Assessment, the sea level is projected to rise 8-12 inches in Santa Barbara by 2030, between 22-30 inches by 2060, and by 2100, that number is closer to 5 feet. This means beach and cliff erosion, greater storm surges, and flooding that threatens our roads, water supply, recreation areas, and more.
With the federal government currently crying hoax and denying the adverse impacts on our climate, efforts to com-bat climate change and sea level rise are being made at state and local levels, and both publicly and privately. From a legal perspective, this includes lawsuits, legislation, regulation,
and planning. The Bench and Bar Conference is designed to educate and inform the members of our legal community and conscientious residents about legal and policy issues, and opportunities, related to our changing climate.
Private Regulation and Legal Accountability The Keynote speaker at the conference will be Mayor
Serge Dedina of Imperial Beach, California. Like Santa Bar-bara, Imperial Beach is a coastal town facing serious threats from sea level rise. Mayor Dedina is a PhD-credentialed conservationist, writer, and surfer who has dedicated his professional life to conserving coastal and marine ecosys-tems and wildlife. As mayor, he is moving aggressively to preserve coastal access, educate about climate change, and hold accountable those responsible for the staggering costs of protecting our coast.
In July 2017, the City of Imperial Beach filed a state court public nuisance lawsuit against three dozen major oil, gas, and coal companies to help pay for the damage caused by climate change. In a recent radio interview, Mayor Dedina
shared some perspectives on this pio-neering lawsuit. “First, we’re working with some of the world’s top scientists, who’ve looked at the impact of carbon — what’s called cumulative carbon — so they’ve actually measured the carbon put into the atmosphere by these com-panies, so they know that the carbon emissions from these corporations have accounted for a large percentage of the carbon in the environment over the last few decades.”
Secondly, he explained, “we have the smoking-gun documents issued by companies like ExxonMobil . . . basi-cally these companies and their docu-
ments acknowledge the impact of sea level rise and climate change, what would happen from their own activities, and talked about the need to change. Then they switched course and carried out their ‘merchants of doubt’ campaign, which has resulted now in our current administration basi-cally pulling out of the [Paris climate agreement] and just basically doubting that climate change and sea level rise is something that’s happening.” According to the lawsuit, the oil companies knew of the likely effects their business would have on the environment, and their own scientists warned that something should be done. Rather than heed that advice, they implemented a big-tobacco like strategy to sow doubt and cultivate climate change deniers.
This lawsuit is not an outlier, and like the early big to-
Mayor Dedina is a PhD-credentialed conservationist, writer, and surfer who has dedicated his professional life to conserving coastal and marine ecosystems and wildlife.
January 2018 9
Feature
Lawyer Referral Service805.569.9400
Santa Barbara County’s ONLY State Bar Certified Lawyer Referral Service
A Public Service of the Santa Barbara County Bar Association
bacco cases, its strategies are gaining traction. The counties of San Mateo and Marin have filed similar lawsuits, and more recently, the cities of San Francisco and Oakland filed public nuisance lawsuits as well. In other words, this is just the beginning.
You can learn more from Mayor Dedina about the lawsuit and sea level rise issues affecting coastal towns like ours at the January 20th conference.
Public Planning at State and Local LevelsWhile the federal government ignores the facts, state and
local governments have taken leadership roles in tackling the threats of climate change. California has long been recognized as a leader in tackling environmental issues, and has pushed forward with first-in-the-nation measures on pollution control and conservation that guide local planning, and that have served as models for national and international environmental law.
Joining Mayor Dedina for a lunchtime panel discussion at the Bench and Bar Conference will be Michael Mc-Cormick, a Planner and Advisor on climate and land use policy at Governor Jerry Brown’s Office of Planning and Research (“OPR”). OPR provides long-range planning and research, and is the comprehensive state planning agency. Mr. McCormick is leading a number of efforts to implement Governor Brown’s goals around land use, climate change, and organizational change. His work with OPR is focused at the nexus of high level climate and sustainability goals and local implementation.
The Panel will also include Aeron Arlin Genet, the District Director and Air Pollution Control Officer for the Santa Barbara County Air Pollution Control District, which is a local government agency that works to protect the people and the environment of Santa Barbara County from the effects of air pollution. She has been involved in preparing climate change initiatives, and developing and implement-
ing climate action plans.
Get Educated on Other Climate-Change-Focused Legal Issues and Specialty Credit Opportunities
In addition to our keynote presentation and lunch panel discussion, the Bench and Bar Conference will feature speakers on:
• Elimination of bias in the law, Hon. Frank J, Ochoa (Ret.), specialty credit
• Addiction and denial, Andrew Dieden, Esq., specialty credit
• Trust and ethical issues in the attorney-client relationship, Francine Tone, Esq., specialty credit
• E-discovery, John Troxel and Jill Jackman Sadler, and
• Sustainable building, Bret Stone, Esq.
Finally, the conference will conclude with a panel discus-sion on ethical issues in social media use by judges and lawyers, with Judges of our Superior Court as the panelists. This qualifies for specialty ethics credit and is sure to be interesting.
Please join us on January 20, 2018, to learn more about the work of our panelists, and how it affects a wide range of legal issues from policy and planning, business and real estate development guidelines, zoning issues, green build-ing, and legal accountability.
Lawrence J. Conlan is the Chair of the Santa Barbara County Bar Association’s Bench & Bar Conference Committee and a Partner with Cappello & Noël, LLP. In his practice, Mr. Conlan represents plaintiffs in complex commercial litigation, including lender liability, intellectual property, and class actions.
10 Santa Barbara Lawyer
January 2018 11
Climate Change, Sea Level Rise and the Law: How Will We Preserve the California Coast?
Registration Payments received è On or before 1-5-2018 After 1-5-2018 SBCBA Members $110.00 $130.00
Registration Form Non-SBCBA Members New Admittee/Public Interest Attorneys Three or More Attendees from Same Firm or Organization
$130.00$90.00
$90.00
$150.00$90.00
$90.00
Name Email Firm Membership status qMbr qNon-mbr qMbr qNon-mbr qMbr qNon-mbrqMbr qNon-mbr
Payment: ___ SBCBA members at q $110 q $130 _______.00___ non-SBCBA members at q $130 q $150 _______.00 ___ new admittee/public interest at q $90 _______.00 ___ 3+ from same firm/org. at q $90 _______.00 à Total: $_________
To register and pay by credit card, call SBCBA at 569-5511. Otherwise, mail completed registration form with payment to SBCBA, 15 West Carrillo, Ste. 106, Santa Barbara, CA 93101. Attach additional sheets for additional registrants.
Saturday, January 20, 201 8 at the Historic Courthouse
Keynote Presentation a nd Panel Discussion with Mayor Serge Dedin a, Imperial Beach, CA
on sea level rise, account ability and coastal planning
• Workshops in abuse & denial, bias, green building, trust in client relationships, and data preservation• Panel of SB County Judges on ethical issues in social media use• 6.5 Hours of MCLE credits available in legal ethics, elimination of bias, competence and general CLE
2018 Bench and Bar Conference
12 Santa Barbara Lawyer
January 2018 13
Welcome to the
PHILANTHROPY CORNERFeaturing Local Non-Profit Organizations
This month’s featured organizations are
The Dream Foundation, and
Storyteller Children’s Center.You can learn more about them on the next two pages.
Volunteer Opportunities
Beach clean-up at Hendry’s Beach through Explore Ecology – the second Sunday of every month, noon. Check in at the Watershed Resource Center. They will give you a tracking sheet for items you collect, which they have been tallying for over a decade. Borrow gloves and buckets or bring your own.
If you have volunteer opportunities you would like to have listed in the Philanthropy Corner, please contact Jenn Duffy at (805) 963-0755 or [email protected].
Local News
A “Dreamer” — Dream Foundation A student — Storyteller
14 Santa Barbara Lawyer
To make a monetary donation or consider an estate gift to any of these programs, visit www.dreamfoundation.org/donate.
Dreams for VeteransIf you served, you can Dream. Dream Foundation’s Dreams for Veterans pro-gram serves our nation’s terminally-ill military veterans and their families by bringing their final Dream to life. The pro-gram provides psychosocial and emo-tional support tailored to veterans and their families. Dream recipients are U.S. military veterans who served from World War II to the Iraq and Afghanistan Wars, and every conflict in between; those who served during peacetime or who currently serve on active duty, the Reserve and National Guard.
How can you help?
• Refer a Veteran Dreamer in need of inspiration, comfort and closure at the end of their life.
To donate time, resources or make a refer-ral to Dreams for Veterans email [email protected].
Flower EmpowerFounded in Dream Foundation’s home-town of Santa Barbara, Flower Empower is a volunteer-driven program that deliv-ers hope and compassion—in the form of fresh bouquets—to those in need. Flower Empower provides comfort and care to any individual in need of cheer in our community. Flower delivery refer-rals come from our local cancer centers, nurses, hospices, elder support organiza-tions and our community at large.
How can you help?
• Help make bouquets on Saturday mornings.
• Deliver fresh bouquets to our local community.
To refer a flower recipient in the Santa Barbara area or to become a volunteer email [email protected].
Dream Toy ProgramDream Foundation Dreams not only touch the lives of our Dreamers, but also those of their families. Nearly 30 percent of our Dreamers have young children living at home. Thousands of toys are lovingly wrapped each year for children who are losing a loved one. Each unexpected gift that Dream Foundation provides is an opportunity to create happy memories and smiles.
How can you help?
• Help fill, wrap and decorate boxes with hand-selected toys that are delivered to our Dreamers across the country to give to the children in their lives.
• Donate unwrapped new toys.
• Donate wrapping paper, markers, puffy paints, and packing tape.
To become a volunteer email [email protected].
Dream Program Dream Foundation’s Dreams touch lives, meet essential needs and provide inspiration, comfort and closure at the end of life. Dream Foundation has given life to more than 27,000 final Dreams over the past two decades and has never turned down a qualified applicant. Dream Foundation receives no state or federal funding—we rely solely on private donations.
How can you help?
• Donate time in our Santa Barbara office by making Dream applicant folders, filing and archiving, and gift wrapping T-shirts.
• Those with a medical background can donate time in the Santa Barbara office by verifying Dream applicants.
To donate time, resources or make a referral to our Dream granting program email [email protected].
Dream Foundation, the only national dream-granting organization for terminally-ill adults, fulfills final Dreams that provide inspiration, comfort and closure at the end of life.
January 2018 15
16 Santa Barbara Lawyer
Criminal Justice
The Jury and Forensic Evidence— Part I: Jurors and the Folk Heuristic By roBert sanGer1
I Robert Sanger
n this month’s Criminal Justice column, we will consider a fundamental question regarding jury trials, that is, how do juries actually decide cases? Trial lawyers,
both civil and criminal, prepare cases with something in mind that may or may not have anything to do with what really happens when the doors close and deliberations be-gin. There have been empirical studies using exit interviews and even some video-recorded deliberations. Neither is an ideal model for research. And, of course, trial lawyers tell tales of their wins (and, less frequently, losses) wherein they ascribe conduct and thought processes to the jurors that may or may not be accurate.
In this month’s column, we will take a different approach to understanding juries. We will look at what we think juries ought to do and what we can really say about what juries actually do.2 In determining what evidence should be presented to a jury, the best practice would be to predict what juries, on a good day, will do. Hence, this column will suggest that the jury, on a good day, will employ some form of a “folk Bayesian analysis,” the understanding of which, in turn, will be useful in deciding what kind of evidence will be appropriate to present.
This will be followed in the Criminal Justice column next month by Part II of The Jury and Forensic Evidence. There we will look at the effort to quantify forensic evidence and how it is or is not compatible with the jury’s “folk Bayes-ian analysis.”
The Ideal JuryThere is an idealized view of what juries ought to do.3
That version has a significant effect on what evidence is deemed admissible under the rules of evidence.4 The ideal jury would adopt a rational decision-making process that promoted the best probabilistic judgment. The jury’s proce-dures would avoid extraneous influences, consider the facts and the law, and avoid biases employing heuristics only in a benign fashion. Jurors are instructed in general terms to do these things but are not given any special tools or spe-cial instructions on decision-making theory, let alone how
to implement a particular theory in order to reach a rational result.
Trial lawyers know that jurors do not always do what they ought to do, and there is much litera-ture on both avoiding and promoting jurors’ activi-ties in going outside the parameters of the legal structure within which the ideal jury would operate. The extreme version of this is “jury nullification.” The Department of Jus-tice, in prosecuting race-based crimes in the South in the 1960s and later, fought hard to avoid jury nullification – that is, to have the jurors do their duty to follow rational evi-dence in hate-crime prosecutions. Conversely, the defense in those cases sought to have jurors vote their prejudice and not follow the evidence and law.5 We also know that trial lawyers on a less systemic basis often attempt to influence jurors outside the facts and the law.6
However, for the most part, practicing trial lawyers argue the facts and the law, and spend considerable time with the trial judge crafting jury instructions so that the jury is prop-erly educated on the law and that they apply that law to the facts at hand. Lawyers know that jurors can be persuaded by extraneous matters, and they spend a lot of time trying to avoid having their opponents bring in prejudicial mate-rial -- while, on occasion, trying to bring in such material of their own. Jurors are instructed that their verdict “must be based only on the evidence presented during trial” and the “law as [the judge] provide[s] it to you” so, “[d]o not let bias, sympathy, prejudice or public opinion influence your decision.” 7
Nevertheless, jurors are not given any structural decision-making rules except to elect a foreperson “to see to it that your deliberations are carried on in an organized way so that everyone has a fair chance to be heard.”8 They are told not to “reach a decision by a flip of the coin.”9 But there is no alternative decision-making theory provided to them as a guide. In fact, if the jury appears deadlocked, they are told, “It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective.”10 This leaves the jurors to engage in whatever individual and collective processes they wish in order to decide who wins and who loses. There is no reference to decision theory, probabilistic judgment,
January 2018 17
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18 Santa Barbara Lawyer
Criminal Justice
Bayesian analysis, or anything else. In addition, the goal jurors are given is vague. It is usu-
ally a binary choice, or series of choices11, but based on a verbally expressed and vague quantification of the ultimate probabilistic determination.12 The jury is told that, to con-vict, they must find that the evidence proves the defendant guilty beyond a reasonable doubt. Most people would agree that it is a “high” standard, but studies show that there is no agreement as to what that means quantitatively.13 Jurors are informed that it does not mean 100%, but they may assume that proof beyond a reasonable doubt means 99% or maybe only 90 or 95%, and there is nothing to prevent outliers. Jurors are not provided any specific numerical quantification for the ultimate probabilistic result.
Even if the jury could agree that proof beyond a reason-able doubt was quantifiable and could agree on a number, e.g., 99%, jurors are not given any guidance as to how to convert the evidence and the law that they receive into a numerical quantification. In other words, the ideal juror would weigh the evidence, whatever that means, to come out with a probabilistic quantification that could be com-pared to a numerical proof-beyond-a-reasonable-doubt standard. The numerical quantification of the evidence that is more than, say, 99%, requires a verdict of guilty while an outcome of 99% or below requires a verdict of not guilty. Yet, the jury is not given the tools or instructions on how to do a probabilistic evaluation of the evidence so that they can apply it numerically to the probabilistic result.
What Jurors Actually DoThe short answer to what jurors actually do is that we
do not know. To the extent that studies have attempted to determine what jurors did in actual cases (or the lim-ited video recording of actual jury deliberations), it is still uncertain since the fact of an observer has an effect on the observations. Still, there is substantial literature on the subject, both anecdotal and academic, by which there is a consensus that the ideal jury -- that is, a jury that adopts a rational probabilistic analysis to apply the facts to the law to reach a rational decision – is not likely.14 There is also consensus that jurors vary widely from case to case in what they actually do. In 1949, Jerome Frank said, “It is extremely doubtful that, if we did not now have the jury system, we could today be persuaded to adopt it.”15
More recent studies have focused on the cognitive pat-terns of jury decision-making.16 These suggest that cognitive bias and heuristics, as well as more blatant distortions of the ideal model, occur with regularity in the decision-making process. They also confirm that there is no regular process adopted by individual jurors or from one jury to another
that accounts for the jurors’ decision-making process. Jury instructions and procedures may have some effect on focus-ing on the evidence and the law17, but that does not translate into a coherent and consistent decision-making process for all jurors. However, there seem to be themes in the process if the aberrant examples are eliminated and there is focus on the core decision-making process.
So, if the goal of this project is to determine what kind of evidence should be presented to a jury, it is necessary to adopt a realistic view of what jurors actually do “on a good day.”18 The justification for this is that playing to the ideal audience is unrealistic and giving up is not an option as long as there are jury trials and trial lawyers. Furthermore, while the jury instructions do not cover the decision-making process, they do emphasize fairness and reliance on the evidence and the law. Therefore, an effective trial strategy would be to present evidence that promotes the decision-making process that jurors would engage in on a good day. Conversely, it would be appropriate to avoid evidence that is incompatible with what jurors are doing on a good day.
On a good day, jurors use something that looks roughly like a Bayesian analysis which we will call “folk Bayesian analysis.”19 In essence, true Bayesian analysis involves computing the probability that a certain hypothesis is true given the evidence. In a criminal case, the prosecu-tion hypothesis is that the defendant did it.20 The defense hypothesis includes all other possibilities. Bayes acknowl-edges that the probability of an event in the real world is not generally based on a single factor analysis; instead most final (posterior) probabilities are based on a series of other (prior) probabilities. The jury may have, say, evidence that the person who committed the crime was described as wearing a red hat and was approximately 5’10” tall. A person wearing a red hat and 5’10” was detained the next day. Then the jury hears evidence that the suspect had mud on his shoes which was similar to the mud at the scene of the crime, and a scientist testifies that the mud on the shoes contained inclusions of a rare chemical that is found at the scene.
Statistical analysis is the study of uncertainty; the actual answer is unknown and the analysis is an educated guess as to what the true facts are. The probability of heads in a coin flip with a fair coin is one out of two, and that prob-ability could be the basis for an educated guess as to what happened in a coin flip that took place in the past. Similarly, the jury determines from the evidence the probability of a hypothesis as to what happened in the past at the crime scene. The difference is that there are multiple pieces of evidence that affect the posterior probability in a criminal case. Using a Bayesian analysis, it would theoretically be
January 2018 19
Criminal Justice
possible to weigh the probability of each piece of evidence individually (the hat, the height, the mud and the inclusions) and then compute their effect on each other (dependent or independent) in arriving at the final numerical (posterior) probability that the defendant did it.21 The jury would then compare that posterior probability to the probabilistic quantification of the burden of proof.
Clearly, unless the jury was composed of statisticians, the jury would not follow a numerically quantified Bayesian analysis. They would not numerically quantify the prior probabilities and then determine if they are dependent (in which case they add them) or independent (in which case they multiply them) and then arrive at a final numerical posterior probability. Hence, they also would not directly apply a numerical posterior probability to the probabilistic quantification of the burden of proof. However, on a good day, we would like to think that the jury is applying a “folk Bayesian analysis” by non-numerically weighing each piece of evidence, determining what weight that evidence has in light of all of the evidence, and coming to a verdict based on comparing the final non-numerical weight of the evidence to the non-numerical burden of proof.
Conclusion – Part IIf a form of non-numerical “folk Bayesian analysis” is
used by jurors on a good day, it is important to determine the effect this has on the best practices with regard to the presentation of forensic opinions to the jury. In the next Criminal Justice column, we will look at the trend toward quantification of forensic opinions with a specific view toward whether this is compatible or incompatible with the jury’s “folk Bayesian analysis.”
Robert Sanger is a Certified Criminal Law Specialist and has been practicing as a criminal defense lawyer in Santa Barbara for over 40 years. He is a partner in the firm of Sanger Swysen & Dunkle and Professor of Law and Forensic Science at the Santa Barbara and Ventura Colleges of Law. Mr. Sanger is Past President of California Attorneys for Criminal Justice (CACJ), the statewide criminal defense lawyers’ organization, and a Director of Death Penalty Focus. Mr. Sanger is also an elected Member of the American Academy of Forensic Sciences (AAFS).
enDnotes1 This essay is part of a larger project which is intended to be
published in law review form later this year. ©Robert M. Sanger. 2 Decision theory has traditionally been studied both from a pre-
scriptive and a descriptive point of view. See, e.g., Paul Slavic, Baruch Fischhaff, and Sarah Lichtenstein, Behavioral Decision Theory, 28 ann. rev. PsyChol. 1-39 (1977).
3 Juries have been praised as a bulwark against unfair state action.
See, e.g., Leonard W. Levy, the PallaDium of JustiCe, (Ivan R. Dee, 1999).
4 The influence of the jury itself on criminal justice is in jeopardy in light of the emphasis on plea bargaining. See, e.g., Robert P. Burns, the Death of the ameriCan trial (Chicago: University of Chicago Press, 2009); Suja A. Thomas, the missinG ameriCan Jury: restorinG the funDamental Constitutional role of the Criminal, Civil, anD GranD Juries (New York: Cambridge University Press, 2016).
5 The nullification process also can favor the abused minority. The lens of the observer will affect the moral judgment in any particular case. For a classic discussion of nullification, see Harry Kalven, Jr. & Hans Zeisel, The American Jury (New York: Little, Brown & Company, 1966) at 495. See also current studies, e.g., Liana C. Peter-Hagene & Bette L. Bottoms, Attitudes, anger, and nullification instructions influence jurors’ verdicts in euthanasia cases, 23 PsyCholoGy, Crime & law 983-1009 (August 2017).
6 Books written by trial lawyers touting their prowess in the courtroom (which will not be dignified with citation) are replete with stories of how they cleverly persuaded juries by appealing to influences outside of the evidence and the law.
7 CALCRIM 101.8 CALCRIM 3550.9 Id.10 CALCRIM 3551.11 Criminal cases involve a binary choice regarding guilt or not-
guilt, death or life without possibility of parole, or true or not true regarding enhancements, special circumstances or the like. The amount of damages in a civil case is an open question and is not binary but can only be reached following a series of binary interrogatories relating to liability.
12 In criminal cases, proof beyond a reasonable doubt, Cal. Pen. CoDe 1096, CALCRIM 103; civil cases, primarily a preponderance (characterized as more likely than not) Cal. eviD. CoDe 115, CACI 200.
13 See Larry Laudan, truth, error, anD Criminal law: an essay in leGal ePistemoloGy, (Cambridge University Press, 2006) 44.
14 Harry Kalven, Jr. & Hans Zeisel, the ameriCan Jury (New York: Little, Brown & Company, 1966); Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty, (St. Martin’s Griffin, 2005) for studies based on interviews with jurors through the Capital Jury Project; Stephen J. Adler, the Jury: trial anD error in the ameriCan Courtroom (Times Books, 1994).
15 Jerome Frank, Courts on trial, (Princeton University Press, 1949) at 139. Frank’s ideal formula is R x F=D, that is Rules times Facts equals Decision. Id., at 110.
16 Dennis J. Devine, Jury DeCision makinG: the state of sCienCe, (New York University Press, 2012); Margaret Bull Kovera, ed., the PsyCholoGy of Juries (American Psychological Association, 2017).
17 E.g., emphasis in jury instructions regarding not being influenced by outside information, including the internet and social media.
18 Using “fuzzy logic” that recognizes the value of vagueness in the light of ambiguity and confusion in the real world. See, e.g., Beh-nam Vahdani, S. Meysam Mousavi, Reza Tavakkoli-Moghaddam, Group decision making based on novel fuzzy modified TOPSIS method, 35 aPPlieD mathematiCal moDellinG 4257-4269 (2011).
19 The term is metaphorically adapted from the term “folk psychol-ogy” used by philosophers to represent a set of cognitive capacities
Continued on page 21
20 Santa Barbara Lawyer
Neal Varghis, MD
Feature
Lawyers: Six Tips for Workplace HealthBy Dr. neal varGhis, mD
E mployees in law offices spend a lot of time sitting at desks, staring at screens and poring over case docu-ments. Add in long hours and the stress of deadlines,
and an attorney’s workplace begins to pose serious health threats.
Having a sedentary lifestyle (either because of work or personal choices) can put you at risk for serious conditions like diabetes, heart disease, and obesity. Additionally, work-ers who sit for long periods of time are prone to neck, back, and shoulder pain associated with poor posture.
As a board certified physician in Physical Medicine and Rehabilitation, I’ve seen the impacts that poor workplace health can have on patients. Those who don’t make changes to their work routine can suffer chronic, long-term medical issues, which can be complicated to treat. If you experi-ence aches and pains each day after working, you shouldn’t ignore them.
Here are six tips for attorneys who find themselves work-ing long hours in the office.
1. Have an ergonomic workstationSome employers will offer an ergonomic evaluation
to determine proper desk, chair, lighting, and monitor setup. Even if your office doesn’t have professional evalu-ations, you can find great tips for a functional workspace online. Typically, your computer screen should be eye level, your elbows should rest comfortably at a 90 degree angle while typing and your chair should support your back while you sit upright with your feet flat on the floor.
It’s easy, especially after long hours, to start to slouch while at your desk. No matter how ergonomically sound your office is, poor posture for long periods of time will take its toll.
2. Exercising on your off timeHaving an active lifestyle outside of the office can help
with workplace wellness. Doing exercises like yoga or Pilates can strengthen your core, making good posture much easier to maintain. The stronger your core, the more
support your spine has, and the easier it is to sit upright all day.
Activities that build up your endurance can also help you fight against fatigue in the workplace. Long hours are never easy, but if you have strong endurance your body will react better.
3. Switch up your office chair
Sitting on an exercise ball isn’t really an option when you have clients visiting. However, switching out your office chair for an exercise ball (sometimes called a stabil-ity or physio ball) can help in two ways: it elicits good posture and it works to strengthen your core. If you have a convenient place to store it when you’re not using it, give an exercise ball a try during morning prep time or in-between clients.
4. Adjustable deskStanding desks or adjustable desks are great for those who
need to work long hours. Again, there is a level of profes-sionalism that needs to be kept for those seeing clients, so a permanent standing desk won’t work for everyone. Sit-to-stand desks are good options for those who need to change between sitting and standing thoughout out the day. Standing while you work is great for your posture and circulation. Just make sure your computer screen is at eye-level and that you are wearing shoes you can stand comfortably in.
5. Take breaksPerhaps one of the easiest things you can do to improve
your workplace health is to take short, periodic breaks from your desk. You should try to stand up or stretch about every half hour. This gives your back, neck, shoulders and eyes rest from sitting at the computer and breaks up the monotony of a long work day. It’s easy to fall into a work trance, especially if you’re on a deadline. Luckily, there are lots of smartphone apps on the market to help remind you to take short breaks.
6. Eat healthyHaving a balanced diet makes it easier to be active. When
your body is getting the nutrients it needs your brain func-tions better and it’s much easier to get through the work
January 2018 21
THE OTHER BAR NOTICEMeets at noon on the first and third Tuesdays of
the month at 330 E. Carrillo St. We are a state-
wide network of recovering lawyers and judges
dedicated to assisting others within the profes-
sion who have problems with alcohol or sub-
stance abuse. We protect anonymity. To contact
a local member go to http://www.otherbar.org
and choose Santa Barbara in “Meetings” menu.
Feature
which might not be supported by physical science, but which seem to account for behavior nonetheless. Here, jurors need not, and likely do not, know anything about Bayesian analysis, nor do they intentionally apply it, but it seems to account for the jurors’ behavior. See, e.g., Ian Ravenscroft, “Folk Psychology as a Theory,” Edward N. Zalta (ed.), the stanforD enCyCloPeDia of PhilosoPhy (Fall 2016 Edition), https://plato.stanford.edu/archives/fall2016/entries/folkpsych-theory/.
20 “Did it” would require that the evidence establishes all of the elements of the offense including mental states and negation of defenses.
21 Bayesian analysis oversimplifies what would really be required of a jury if it were doing a more robust computational analysis. While there are other theories, at a minimum, what would be required would be something like a Bayesian Network analysis which would be represented in probabilistic graphical models, which in turn involve Markov networks between the nodes of the family of probabilistic structures. Algorithms can be developed by computer to determine the statistical value of the interrelation of the nodes (here, the hat, height, mud, and inclusions), but, in reality, Bayesian Networks work off random values that are ad-justed to conform to a known result and then applied to predict similar results in circumstances where the variables are controlled by laws of physics. See, e.g., I. Ben-Gal, Bayesian Networks, F. Rug-geri, F. Faltin, and R. Kennett (eds.) enCyCloPeDia of statistiCs in Quality anD reliaBility, (Wiley & Sons, 2007). In other words, even if jurors had the benefit of a computer pre-programed with sophisticated algorithms, the results of their Bayesian Network calculations would still be an educated guess. Still, the rough analogy to a Bayesian analysis is apposite to the jurors’ work on a good day.
day. In addition to a balanced diet, eating foods with anti-inflammatory properties can help reduce back, neck or shoulder pain associated with desk work. Turmeric is one spice that is fairly popular for reducing inflammation naturally.
Remember, if you’re experiencing daily pain you should see your physician. Treating aches and pains soon after you start experiencing them is much easier than addressing them farther down the line. The longer you wait to adjust your lifestyle or address pain associated with office work, the more likely you are to develop chronic pain. Treating pain that’s been a part of your life for years is sensitive. It involves a balance of physical and mental remedies. Think of healthy work habits as an investment in your career!
Neal Varghis, MD is a Physical Medicine and Rehabilitation doctor who practices with Mercy Medical Group, a service of Dignity Health Medical Foundation in Sacramento. He special-izes in musculoskeletal injuries, acute back and neck pain, spinal cord injuries, traumatic brain injuries, pain reducing injections, and electromyography. A graduate of Albany Medical College, Dr. Varghis completed residency at Stanford University and has been practicing for five years.
This article was reprinted with permission from the Contra Costa County Bar Association (CCCBA). It was originally published in the August 2017 Contra Costa Lawyer maga-zine, a publication of the CCCBA. You can view the original online here: http://cclawyer.cccba.org/2017/08/lawyers-six-tips-for-workplace-health/
Sanger, continued from page 19
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22 Santa Barbara Lawyer
The Santa Barbara County Bar Association Proudly Presents:
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January 2018 25
The SBCBA Family Law and Debtor/Creditor Section Presents:
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Presented by:Carissa N. Horowitz and Matthew J. LongFinancial matters are almost always present in divorce proceedings. Family law litigants in a financial crisis can file for bankruptcy before, during or after a divorce. Learn how bankruptcy can affect divorce proceedings:
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The SBCBA Alternative Dispute Resolution Section Presents:
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RSVP to Dr. Penny Clemmons at [email protected], or Lida Sideris at [email protected], or call (805) 569-5511. Make your check payable to the SB County Bar Association and mail to SBCBA, 15 W. Carrillo Street, #106, Santa Barbara, CA 93101.
Helping Thomas Fire Victims
The State Bar is asking for help in creating legal assistance for the Thomas Fire victims. To that end, they’ve created a survey monkey to gather names and expertise. This is the link:
https://www.surveymonkey.com/r/SoCalFireProBono
The State Bar will collect names of interested volunteers via Survey Monkey. The link will be posted on the State Bar website and on social media shortly. Taking the survey does not obligate an attorney to take cases or help with outreach. It is just a list of attorney resources to get started with a response when the time comes. A lesson learned from the Northern CA fires was that getting a list of resources gathered was critical.
26 Santa Barbara Lawyer
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