Contra Costa Lawyer - CCCBA · The Contra Costa Lawyer (ISSN 1063-4444) is published monthly by the Contra Costa County Bar Association (CCCBA), ... Ferrari Sponsors Carroll, Burdick

Volume 22, Number 8 • August 2009

The official publication of the

Contra Costa LawyerB A R A S S O C I A T I O N

FundingEducation

© 2009 Thomson Reuters L-348196/3-09

Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

WEST.THOMSON.COM

LET INTELLIGENT INFORMATION FIND YOU.

Work smarter, not harder, with these California resources from West:

• Westlaw®

• KeyCite®

• Westlaw PeopleMap

• ProDoc®

• Legal Calendaring

• West Case NotebookTM/

West LiveNoteTM

• The Witkin Library

• West LegalEdcenter®

• Case Evaluator

• CFLR® DissoMaster® Suite

• Miller & Starr Library

• California Pleadings,

Motions & Memoranda

• The Rutter Group

California Practice

GuidesTM

For more information, call Karen Cornell, West Law Firm Consultant,at 510-530-6181 or email: [email protected]

Volume 22, Number 8 • August 2009Contra Costa Lawyer

c o n t e n t s

features 4 InsIde Audrey A. Smith

6 pResIdenT's messAGe Larry E. Cook

14 QuesTIon mAn How SHouLd wE pAy for pubLiC EduCAtion in An ErA of budgEt CutS?

22 eThIcs coRneR Carol M. Langford

24 LocAL cIvIL juRy veRdIcTs Matthew p. guichard

26 cLAssIfIeds

departments

B A R A S S O C I A T I O N

8 LeTTeR (And Response) To The membeRshIp of The cccbA Larry E. Cook and ronald p. rives

10 IneQuITIes In cALIfoRnIA's sysTem of fundInG pubLIc schooL dIsTRIcTs Did you know that the current economic crisis impacts some school districts to a far greater degree than others? paul Strange

16 specIAL educATIon Are we truly taking money away from others or is it more costly not to provide appropriate services? roberta S. Savage

18 pARenTs And ATToRneys In The eye of The huRRIcAne A personal and unique perspective on the implementation of the Individuals with Disabilities Education Act. greg rolan

4 August 2009

The Contra Costa Lawyer (ISSN 1063-4444) is published monthly by the Contra Costa County Bar Association (CCCBA), 704 Main Street, Martinez, CA 94553. Annual subscription of $25 is included in the membership dues. Second-class postage paid at Martinez, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 704 Main Street, Martinez, CA 94553. The Lawyer welcomes and encourages articles and letters from readers. Please send them to Nancy J. Young, Associate Editor, Contra Costa Lawyer, P.O. Box 1867, Benicia, CA 94510. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respec-tive authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Christopher BowenOliver BrayMike BrewerJay ChafetzVirginia GeorgePeter Hass

CCCBA EXECUTIVE DIRECTORLisa Reep: 925.288-2555 • [email protected]

CCCBA main office: 925.686-6900 • www.cccba.org

2009 BOARD of DIRECTORSLarry Cook President

Ron Mullin President-ElectKathy Schofield Secretary

Audrey Gee TreasurerRobin Pearson Ex Officio

Leigh JohnsonKristen Thall Peters Ron RivesDana SantosStephen SteinbergCandice Stoddard

EDITOR Candice Stoddard 925.942-5100

ASSOCIATE EDITOR Nancy J. Young 925.229-2929

BENCH LIAISON Hon. Mary Ann O'Malley 925.646-4001

BOARD LIAISON Candice Stoddard 925.942-5100

COURT LIAISON Kiri Torre 925.957-5607

ADVERTISING/DESIGN Young Design & Production 925.229-2929

PRINTING Excel Graphics 925.552-9998

PHOTOGRAPHER Moya Fotografx 510.847-8523

EDITORIAL BOARD Kate Bekins 925.284-0480Mark Ericsson 925.930-6000Matthew P. Guichard Local Civil Jury Verdicts925.459-8440Patricia Kelly 925.258-9300Nicole Mills 925.351-3171Craig Nevin 925.930-6016David Pearson 925.287-0051Erika Portillo 925.459-8440Andy Ross 925.296-6000Kathy Schofield 925.253-7890Audrey Smith, JFK Liaison925.969-3561Harvey Sohnen 925.258-9300Marlene Weinstein 925.942-5100

CONTRA COSTA LAwyER

Jennifer Comages Membership Coordinator

Emily Day Systems Administrator and Fee Arbitration Coordinator

Manny Gutierrez Administrative Assistant and Legal Interviewer

Maria Navarrete LRIS Coordinator

Barbara Tillson Moderate Means Program CoordinatorMichele Vasta Section Liaison / Education & Programs Coordinator

by Audrey A. Smith

inside

Welcome to the education edition of the Contra Costa Lawyer. Issues related to providing and paying for a quality public education arise in a variety of legal practice areas. In the current economic environment, tensions have increased between parties vying for shrink-ing resources. So, we thought we would bring some important issues to the forefront.

The current economic crisis impacts some school districts to a far greater degree than it impacts others. As the Vice-President of the Mt. Diablo Unified School District Board of Trustees, attorney Paul Strange tells us firsthand about the Inequities in California’s System of Funding Public School Districts.

Roberta Savage is a solo practitioner who represents a significant number of students seeking special education services in Contra Costa County. In her article, she addresses the myth that students in special education programs are getting an unequal share of limited resources and taking money away from other school programs.

Greg Rolan gives us a unique perspective on the implementation of the Individuals with Disabilities Education Act (IDEA). As the General Counsel for the Mt. Diablo Unified School District, and the father of two children receiving special education services, he explains that the federal government provides grossly insufficient aid to public school districts to comply with mandates of the IDEA. He also provides infor-mation regarding the legal rights of children/parents and the special education service options that are available.

As always, you will read some varied responses to this month’s Question Man (How should we pay for public education in an era of budget cuts?).

Turning to some brighter news on the education front, John F. Kennedy University, School of Law, has expanded its clinical programs. JFKU, School of Law, now operates three legal clinics: The Criminal Defender Clinic (Berkeley and San Francisco, Professor Stephanie Andraktas, Director); The Housing Advocacy Clinic (Berkeley, Professor Ora Prochovnick, Director), and the Elder Law Clinic (Pleasant Hill, Professor Virginia George, Director). Law students work under the supervision of law faculty, providing much needed services to low-income populations from whom legal representation is often unavailable. You may contact the clinics based in Berkeley at 510.647-2063, and the Pleasant Hill Elder Law Clinic at 925.969-3341.

The ABA recently approved JFKU’s Paralegal Certificate and Bachelor of Arts Degree in Legal Studies. JFKU now holds the distinction of being the only school in Northern California to offer this BA program.

JFKU, committed to offering continuing education to paralegals, is hosting the Legal Studies Program in conjunction with the Mt. Diablo Legal Professionals Association. On October 10, they will offer a day of continuing education classes specially designed for local, practicing paralegals. This event will provide paralegals the chance to complete all of the continuing educational requirements outlined in Bus. & Prof. Code section 6450 in just one day. Contact Marci Trevino at [email protected] or 925.969-3563 for more information.

We hope you enjoy this special issue. u

— Professor Audrey A. Smith, John F. Kennedy University, School of Law, is the Director of the Legal Research and Writing Program.

Contra Costa Lawyer 5

The Contra Costa County Bar Association is pleased to announce the fourth never annual

Trivia Bowl for Access to Justicein support of The BAR FUND

Friday, October 2, 2009 • 6:00 – 9:30pm • Blackhawk Museum$75 per person - $750 reserved table for 10

$100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program)$500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction1)

Master of Ceremonies Tom Beatty • Judge Hon. Norm Spellberg (ret.) • Game Show Host Brian Bonney

Maserati SponsorsJAMS • Miller Starr Regalia • Nevin Ramos & Steele

Ferrari Sponsors

Carroll, Burdick & McDonough, LLP • Certified Reporting Services • The Recorder

To Register: Call Michele Vasta at 925.370-2548 with your Visa, MasterCard, American Express, or Discovery Card,email her at [email protected] ~ or ~ send your check, payable to CCCBA, to 704 Main Street, Martinez 94553.

For further information, contact Lisa Reep at 925.288-2555 or [email protected].

6 August 2009

by Larry E. Cook

president’s message

It hardly seems possible — we have moved past the year’s midpoint. I want to take this opportunity to update everyone on our progress toward the completion of some of this year’s major projects and acknowl-edge some very special members who have been working so hard to get things done.

• First, our website redesign and develop-ment committee, headed up by CCCBA Board member Steve Steinberg, is prepar-ing to make its recommendations to the full Board of Directors as to the awarding of the contract for the new site. Steve and the members of the committee are to be commended for their tireless efforts. Taking time out from their busy practices to determine our web needs, create a proposal and then spend hours and weeks reviewing bid proposals is a staggering task. If all continues to go well, we should be in a position to roll out a demonstration of the new site at this year’s MCLE Spectacular on November 20, with completion and launching of the site by year’s end. Key features of the site will include an updated calendaring system. Members will have the ability to register and pay for all pro-grams online, and allow everyone to update and track MCLE credits. Bringing our website into the modern era is a demand-ing project in terms of time and financial commitment. Investment in this effort will bring valuable returns to the member-ship and the public for years to come.

• On June 11, Carroll, Burdick and McDonough generously hosted the sea-sonal Get to Know Your Judges reception at their Walnut Creek office. Partners Jack Friedman, Larry Panek and Wally Smith provided thorough and witty introduc-tions to Judges Craddick, Cram and Kennedy. Members appreciate the chance to meet judges in a social setting over hors d’oeuvres and drinks. These gatherings are a nice way to get to know each other on a personal level outside of the court-house, where lawyers and judges can dispense with formalities and begin to know and relate to each other as people. Many thanks to Carroll, Burdick and McDonough for an outstanding event.

• As promised, we brought back our Law Day for Lawyers program on June 5; an all-day seminar at JFK University, focusing on the business of law practice and how to develop strategies for sur-viving in a down economy. Thanks go out to CCCBA member Jay Chafetz for setting up the program, developing the seminar topics and arranging excellent speakers to fill the day. We especially appreciate seminar presenters and bar members Rick Norris, Dick Frankel, David Pearson, as well as banking executive Rick Wise for donating their time and talent to make the program a success. Also, thanks to JFK University for providing wonderful facilities for the event.

• We continue to work in partnership with the court to achieve efficiencies and to maintain quality control within the court-sponsored ADR Program. The ADR committee — chaired by Andy Schwartz and made up of attorneys, John Warnlof, Lynne Yerkes, Tom Beatty, Peter Mankin and Judge Judy Craddick — has taken on the task of hammering out and draft-ing proposed changes to local court rules regarding qualifications and MCLE requirements for attorney participation in court-sponsored mediation programs. Over the past year or so, a rift was created between the court’s ADR Program and many participating bar members who were faced with being dropped from the program for failing to complete 40 hours of mediator training. The concern was that otherwise highly qualified and experienced attorneys would not volunteer their time to act as mediators if a 40-hour training program was mandated by local rules. On the other hand, it is widely accepted that in today’s complex legal environment, effective mediators need specialized train-ing on an ongoing basis in the areas of mediation strategies and ethics. The ADR committee has worked very hard to propose rule changes that will achieve a proper balance between legitimate competing interests. Under the proposed changes, attorneys will be able to qualify by com-pleting 40 hours of formal training and/or by demonstrating their qualifications in


other ways, such as providing evidence of trial experience, mediation experience or other training to demonstrate their abilities. Recognizing that “one size does not fit all” when it comes to experience or effective-ness, the ADR committee hopes to strike the proper balance. Proposed rule changes should be out for comment in the very near future. Many thanks to the committee.

• On the subject of upcoming events, please make plans to attend the CCCBA Trivial Bowl on Friday, October 2. The gala event will take place at the Behring Auto Museum in Blackhawk. The theme is everything and anything to do with automobiles. The opportunities for theme-related costumes are unlimited. Whether you plan to sponsor a Trivia Bowl team or just share in the excitement of the event, please come and have a great time. This is our BAR FUND event for the year. Let’s make it a success.

• On Friday, November 20, we will hold our annual MCLE Spectacular in Walnut Creek. Mark your calendar for this great MCLE opportunity. We are lining up a stellar group of topics and presenters for the day, as well as a wonderful slate of speakers for the Breakfast Kickoff and Keynote Address. As always, contact the Executive Director, Lisa Reep (925.288-2525 or [email protected]) for details.

Well, these are some of the highlights of our Bar activities and issues. I am very pleased to report that association member-ship is at an all-time high and section activity across the board is strong. I welcome your comments and con-cerns on all Bar-related matters. If you need more information on anything, please call me directly. My goal is to stay in touch and be responsive to all members. Have a great summer. u

— Larry Cook is a partner with Casper Meadows Schwartz & Cook in Walnut Creek. The firm represents plaintiffs in personal injury cases.

WALNUT CREEK 1500 N. California Blvd. • 925.944.0180Oakland , 1111 Broadway, 510.625.7850 • Santa Clara • 5201 Great America Pkwy., 408.653.1200

Standards • Strategies • Strength • Solutions

WELL PREPAREDto handle your complex business transactions

California’s Oldest Independent Bank

www.scottvalleybank.com

Rick Wise, EVP925.944.0180 ext. 216

Colleen Benatar, VP925.944.0180 ext. 215

Doug Maggi, SVP925.944.0180 ext. 209

Bob Kouba, VP925.944.0180 ext. 212

Northern CaliforniaMediator / Arbitrator

11 years as Mediator20 years as Arbitrator

28 years in Civil Practice

•TrainingincludesMediationCourseat Pepperdine University 1995

•ServingonKaiserMedicalMalpractice NeutralArbitratorsPanel

•SettlementCommissioner,Alamedaand ContraCostaCounties

•ProTemJudge,SmallClaims, AlamedaCounty

•ExperiencedinallareasofTortLitigation, includinginjury,propertydamage,fireloss, malpractice,constructiondefect

Roger F. Allen510.832-7770

Ericksen,Arbuthnot,Kilduff,Day&Lindstrom,Inc.

155GrandAvenue,Suite1050 Oakland,CA94612

[email protected]

Take advantage of one of the many CCCBA membership benefits!

To schedule an appointment with a CCCBA notary, please call

Barbara Tillson, (925) 370-2544

704 Main Street • Martinez

Free Notary Services

8 August 2009

July 14, 2009

LETTER TO THE MEMBERSHIP OF THE CONTRA COSTA COUNTY BAR ASSOCIATION

Dear CCCBA Members:

AtitsJuly1,2009BoardofDirectorsmeeting,theCCCBABoardofDirectorsconsideredtheissueofwhetherornottheCCCBAshouldjoinwithotherbarassociationsandlegalorganizationswhohaveoptednottopatronizetheManchesterHyattHotelinSanDiegowheretheStateBar’sannualmeetingwillbeheldinAugust.TheStateBarofCaliforniaenteredintoamulti-yearcontractwiththeManchesterHyattHotelinSanDiego,thevenuefortheannualmeetingin2009and2011.WhenitwasrevealedthattheownershipoftheManchesterHyatthadcontributedasubstantialamountofmoneytotheYes on 8Campaign,theStateBarconsidereditsoptionswithregardtomovingthemeetingtoanothervenue.Citingitsfiduciarydutiesandthepossibilityoflosingupwardsof$500,000inliquidateddamages,shouldthecontractwiththeManchesterHyattnotbehonored,theStateBarannouncedthatitwouldnotmovetheannualmeeting.

Several voluntary bar associations and other organizations across the state have chosen to not topatronizethevenue.ThosegroupsincludetheConferenceofDelegatesofCaliforniaBarAssociations,theBarAssociationofSanFrancisco, theAlamedaCountyBarAssociation, theSantaClaraCountyBarAssociation,theBeverlyHillsBarAssociation,theLosAngelesCountyBarAssociation,theOrangeCountyBarAssociation,andothers.

Afterconsiderationanddiscussionofthismatter,theCCCBABoardvotedtojoinwiththeabove-mentionedorganizationsandnotpatronizetheStateBarannualmeetingsandactivitiesattheManchesterHyatt.Therefore,noonewillberepresentingtheCCCBAthisyearatanyfunctionsattheManchesterHyattHotelattheStateBar’sannualmeeting.Naturally,individualmembersoftheCCCBA,includingmembersoftheBoardofDirectors,havetheoptionofattendingornotattendinganymeetingsastheyseefit.OurCCCBAdelegationwillattendandparticipateintheConferenceofDelegates,whichhasrelocateditsmeetingtotheHiltonHotelinSanDiego.

LARRYE.COOK President ContraCostaCountyBarAssociation


RESPONSE

OnJuly1,2009theCCCBABoardofDirectorsconsideredaletterfromacoalitionofunionrepresentativesandopponentsofProposition8tosupportaboycottoftheManchesterHyatt.

TheboycottwascalledbecauseDougManchester, thehotelowner,hadmadeasizablecampaigncontributiontoProposition8.Mr.Manchesterisnotchargedwithacrime—norwithanydiscriminationbasedonsexualorientation.Thesolebasisoftheboycottisthathemadeacampaigncontributioninsupportofaparticularpoliticalviewpointthatheholds—aviewpointapparentlysharedwiththemajorityofvotersinthatelection.

ManymembersoftheBoardbelievethattheissueofgaymarriagecarriescertainconstitutionalandequalprotectionaspectsthatraiseitaboveamerelypoliticalissueandmakeitappropriatefortheBarAssociationtotakeaposition.TheBoarddiscussioncenteredaroundProp8insteadoftheissueofwhetherit isappropriateforaBarAssociationtojoin ineconomicsanctionsonaprivatecitizenforholdingaparticularpoliticalviewpoint.

TheBoardmajorityhasgraciouslypermittedmetoexpressthedissentofasubstantialminorityoftheBoardconcerningthisaction. TheCCCBAisanassociationofattorneysthatrepresentstheviewofitsmembership,advocatesinareasofconcerntoattorneysandholdsvariousgovernmentcontractstoprovidecertainlegalservices.Tojoinineconomicsanctionsagainstaprivatecitizenformakingalegalcampaigncontributionisnothinglessthandiscriminationbasedpurelyonthatcitizen’spoliticalorsocialviewpoint.

TheCCCBAshouldsupportfreedomofspeechandshouldcondemnthosewhowouldlimititthroughcoercivetactics.TheBarshouldencouragethefreeexchangeofideas,therighttofreeexpressionandtherighttovoteone’sconsciencewithoutfearofretaliation–evenwheretheBoarddisagreeswiththatpointofview.AsIstatedduringthediscussion,myoppositiontothisactionwouldbejustasstrongifthebasisoftheboycottwasthatMr.ManchesterhadopposedProp8.

IhopethattheBoardwillconsiderachangeintheby-lawsthatwillpreventtheBoardfromexpressingapositiononanyissuebymeansofsinglingoutaprivatecitizenforeconomicsanctions.Itrustthatthemembershipwillmakeitsfeelingsknownonthisissue.

Inconclusion,themembershipshouldrestassuredthatallpointsofviewonthisissuewereexpressedandcourteouslyconsidered.ItisaprivilegetoserveonthisBoardwiththeofficersanddirectorsoftheCCCBA.

RONALDP.RIvES Board Director ContraCostaCountyBarAssociation

10 August 2009

Prior to 1972, California school boards had the ability to control their revenue. By adjusting the local property tax rate, a simple majority of any given school board could raise or lower the revenue in the district. The result of this system was that there were great disparities in the funding of school districts between rich communities and poor communities. In 1971, the California Supreme Court ruled that the disparity in funding for schools was not allowable.1 The California Supreme Court required that the legisla-ture create a solution to the problem that

would result in more equal funding for schools — funds could not vary more than $100 per student between districts. The legislature’s response was to take away all taxing authority from school districts and shift the funding to the state level. The state’s plan was to then slowly begin equalizing funding to the school districts. The state did so by setting each district’s “revenue limit” per pupil at approximately the amount the district had spent the year before, with the plan to make adjustments in future years.

California’s plan to equalize funding to school districts across the state was largely foiled by the passage of Prop 13 in 1978. Prop 13 did to all other local government agencies what the legislature had done to school districts — it took away local tax-ing authority. Prop 13 also eliminated 57% of the property tax revenue the state collected, created the two-thirds require-ment for parcel taxes and equalized everyone’s tax rate, but it interrupted the equalization process. In addition, after Prop 13, any school district that generated local revenue in excess of the “revenue

Inequities in California’s System of Funding Public School Districts

by Paul Strange

California’s K-12 education funding system has resulted from a hodgepodge of court cases, legislative efforts and ballot initiatives. The news is rife with examples of the negative impact of California’s current economic crisis on our schools. But the current economic crisis impacts some school districts to a far greater degree than it impacts others. This disparity results, in large part, from the fact that some districts are being sheltered from the funding cuts while others are not; and from the fact that many school districts have far less funding to begin with when compared to other districts. n The current funding system in California leaves much to be desired. Probably the greatest shortfall of the current system is the built-in inequity across school districts. This inequity is not only fundamentally unfair — creating a system of “haves” and “have-nots” — but in many ways the inequity becomes the main obstacle to statewide reform. Those parents who can afford to live in school districts with higher funding are also among the more politically powerful in the state. There has been little incentive for those with political power to push for change when it comes to education funding. n Nowhere is the inequity in funding more prevalent than in the Bay Area. Districts at both ends of the spectrum can be found in the Bay Area, and severe variances can even occur within county borders. n An exhaustive review of the history of school funding is not the purpose of this article, but a short primer on the history is helpful to understanding the overall equity issue.


u

limit” was allowed to keep the money. These districts were originally called “basic aid” districts since the state still provided a little funding (about $120 per student). Now they are called “excess revenue” districts, as their revenue exceeds the revenue limit amount. There are basically two categories of inequity in school funding: 1) inequities between revenue-limit districts based on varying revenue limits and parcel taxes; and 2) inequities between revenue-limit districts and those that are “excess revenue.” It is a bit of a tangent, but it is impor-tant to understand how some school districts can collect local revenue that exceeds their revenue limit. There are two main factors that allow school districts to glean excess revenue from their commu-nity. First, in these communities, assessed property values are typically on the high end. The higher the assessed value of the property, the more property tax that is collected. Second, in these areas, a larger percentage of tax revenue is dedicated to local schools. In other words, a larger portion of a larger pie results in more local revenue for schools, revenue in excess of what the district would otherwise get in its “revenue limit.” Before reaching the hard numbers com-paring districts, it is important to consider the basis upon which districts should be compared. For purposes of this article, the unrestricted revenue of the districts will be compared on a per-pupil basis. In addition, Mt. Diablo will be the starting point for purposes of comparison. There are two major categories of funding for the district: restricted and unrestricted. Generally speaking, restricted revenue is given to a district for a specified purpose. Typically, this specified purpose recognizes that the district bears an addi-tional burden beyond educating a typical student. For example, it is well known that it is more expensive to educate English language learners and low-income students. They simply need more support. Accord-ingly, a district may be given money to support these needs, while another school district, which does not have those needs, does not get the money. A simple exam-

ple of this (although one that does not hit the general fund) is free and reduced lunch. Mt. Diablo provides free and/or reduced lunch to 33.4% of students, while San Ramon only serves 2.0% of its population. Mt. Diablo has far more revenue than San Ramon that is dedicated to providing free and reduced lunch. These extra funds, however, should not be considered when comparing district revenues, as they simply represent revenue that is expended on an offsetting obligation.2 Accordingly, restricted funds do not inform the analysis of the comparison of districts for purposes of overall equity. In addition, it simply makes sense to compare the revenue with which the district can actually make decisions. If a district has restricted money that is dedicated to a particular purpose, it can-not be used to save other programs (like class size reduction, music or sports) or to save positions outside of that specific purpose or to raise the sub-competitive salaries of employees. With that basis in mind, a review of the actual numbers reveals an unequal distribution of unrestricted funds per pupil across Contra Costa County and throughout the state. Chart 1 (below)

shows the amount of unrestricted funding per pupil for all districts in Contra Costa and Alameda (these amounts include parcel taxes, whether or not the district lists the parcel tax in its unrestricted or restricted revenue as the board actually controls what is put on the ballot).3 Mt. Diablo Unified School District is $925 per student below the average. This rep-resents a shortfall of about $32 million below the average (when multiplied by Mt. Diablo’s Average Daily Attendance “ADA” or number of pupils). Chart 2 (see the following page) shows the comparative revenue that other dis-tricts have compared to Mt. Diablo. On this chart, Mt. Diablo is shown as $0. The amount shown for each district represents their per-pupil amount multiplied by Mt. Diablo’s ADA. In fact, the Mt. Diablo Unified School District is very close to the bottom. Some districts have as much as $140 million (comparatively) more per year than Mt. Diablo.4 Chart 1 compares districts in Alameda and Contra Costa with Mt. Diablo. There are, however, greater disparities between Mt. Diablo and districts in other Bay Area counties. For example, Palo Alto Unified

$6,000

$6,500

$7,000

$7,500

$8,000

$8,500

$9,000

$9,500

$10,000

$10,500

$11,000

Average$7,156

Mt. Diablo$6,231

Difference$925

Chart 1

12 August 2009

has $11,773 in unrestricted revenue per ADA or a comparative $188 million more per year than Mt. Diablo. Mountain View — Los Altos has $10,546 in unrestricted revenue per ADA or a comparative $169 million more per year than Mt. Diablo. Tamalpais Union High has $13,092 in unrestricted revenue per ADA or a com-parative $256 million more per year than Mt. Diablo. Reed Union Elementary has $11,358 in unrestricted revenue per ADA or a comparative $197 million more per year than Mt. Diablo. The disparities are enormous and unfair. School districts are not treated equally when it comes to funding in the State of California and the outcome is that some districts simply do not have a fair opportunity to provide needed resources to students. These inequities result in unfair distribution of educational services provided to students, a lack of competitive compensation for school employees, and significant turnover among the staff in the lower funded districts. During challenging economic times like the present, the California school districts that are funded by “excess revenue” resources do not suffer the same negative economic impact as the state-funded districts. In fact, some of the “excess

revenue” districts have seen little or no reduction in revenue while others face revenue reductions of up to 20%. The inequities in funding school districts in California are obvious. The solutions to address the inequities are not obvious nor are they politically popular. But solutions must be found and implemented. u — Paul Strange is the founder of The Strange Law P.C., with offices in Walnut Creek. He practices business litigation and family law, and represents school districts. He also serves as the Vice-President of the Mount Diablo Unified School District Board of Trustees.

1See Serrano v. Priest, 5 Cal.3d 584 (1971) (Serrano I); Serrano v. Priest, 18 Cal.3d 728 (1976) (Serrano II); Serrano v. Priest, 20 Cal.3d 25 (1977) (Serrano III).2In fact, in many circumstances, the additional state -restricted dollars do not cover the actual cost of the additional burden, which means that the district must make up the difference from unrestricted funds.3All data is publicly available at http://www.ed-data.k12.ca.us/. Specifically, the information is pulled from each district’s “Revenue Detail” page. Mt. Diablo’s information can be found at http://www.ed-data.k12.ca.us/finance/GeneralFundRevenueDetail.asp?District Name=Mt.%20Diablo%20Unified&districttype= Unified&commonAdmin=False&DistrictCode= 61754&FYR=2007-08.4Importantly, none of the districts in Contra Costa or Alameda are excess revenue. These differences reflect the disparity among state revenue limit schools.

Mark V. Murphy

personal Injuryreferrals requested

Over 25 years experience representing injury victims.

Practice dedicated solely toPersonal Injury.

Each client given prompt,courteous attention.

Antioch and San Ramon Offices

925.552.9900

Glenn & Dawson LLPCertified Public Accountants

Donald A. Glenn CPA,ABV,CVA,CFE

Leslie O. Dawson CPA,ABV,CVA

Specializingin

LitigationSupport–familylaw

BusinessValuations

ProbateandEstates

FinancialInvestigations

Audit Tax and Accounting Services

forindividualsand

privatelyownedcompanies.

323LennonLane,FirstFloorWalnutCreek,CA94598

Telephone (925) 945-7722Facsimile(925)932-1491

($7,000,000)

$13,000,000

$33,000,000

$53,000,000

$73,000,000

$93,000,000

$113,000,000

$133,000,000

$153,000,000

Chart 2


Annual Call for Board of Directors’ Nominations!Do you want to be a leader within our legal community, but are unsure of what it takes to be a Director on the Contra Costa County Bar Association Board?

The Board is looking for candidates who agree to meet the following expectations:

To possess (or acquire) a basic understanding of the Bar Association and its activities n To commit to the mission and values of the AssociationTo represent the Association in a manner consistent with Board decisions n To prepare for and regularly attend monthly Board meetingsTo attend additional meetings and bar-sponsored events as needed n To participate on at least one committee or taskforce n To participate in the annual Board Orientation and Training program

Directors are selected for their experiences and personal attributes. Active participation on a CCCBA committee or section leadership is a plus.

Nominations Process: To be eligible, nominees must be active attorney members of the Association. For purposes of the Association’s annual election, nominations for Directors shall be made by the Directors’ Nominating Committee at the regular October Board meeting, for approval by the Board. The Board may accept or reject any or all of the Committee’s nominations. The Board’s decision on the candidates for election as Directors may be supplemented by additional nominations made in writing by any member and seconded by four members of the Association, with the concurrence of the nominee, by September 30.

If you are interested in serving on the 2010 Board of Directors (or to fill an existing vacancy), please submit your written nomination as outlined above to:

Lisa Reep, Executive Director704 Main Street

Martinez, CA 94553(email: [email protected])

14 August 2009

uestion manQHow should we pay for public

education in an era of budget cuts?

Every pay increase for a public official should be accompanied by a mandatory budget increase for the educational system. It is well documented that a good education is the hallmark of

whether that person succeeds in life or falls through the cracks. Our politicians should get their priorities straight.

Magany AbbassLaw Offices of Magany Abbass

1) Repeal Prop. 13, and 2) Raise taxes.

James N. WoodProfessional Fiduciary

California appears to suffer from a desire to have a top educational system, combined with an unwillingness to pay for it. We have lived under the delusion that we can get great education

from lottery money. We now have one of the worst funded educational systems in the nation. It is time for us to acknowledge that education for all provides great ben-efits to all, and is worth paying for. Repeal Proposition 13, and establish an equitable means of taxing us to enrich ourselves as a society through quality education of our children.

David W. GinnLaw Offices of David W. Ginn

We have to stop using public schools to solve all the problems of the world we adults can’t handle. Basic programs only. Then amend Prop 13 to exclude commercial real estate.

Tom CainLaw Office of Thomas W. Cain

How should we pay for public education in an era of budget cuts? We should pay for educa-tion liberally and well, just like when I grew up in California, always the #1 state in the

Union in terms of educating its children. We could start by firing the entire Cali-fornia Legislature for its intransigence and failure to do the job we hired them to do, and we could get smart by not rehiring the same people — over and over — letting them shuffle through California government like walking zombies, failing to do the job. Or is that harsh?

David A. BrownLaw Office of David A Brown,

Out of available resources, the education of our children and the care of our disabled chil-dren and adults should come at the top of the list. These expenses should take priority at the 100% level over all other expenses. This, of course, is not the view shared by legislators and governors.

Wayne V.R. SmithSolo, Martinez

The state legislature should be prevented from balancing the state budget by either borrowing lottery funds or substituting general funds with lottery funds.

Joseph M. NykodymRyan & Lifter

Repeal Prop 13.

Helen PetersAttorney-Mediator

We should tax people with the means to pay higher taxes. There is already a move in Congress to raise the marginal tax rates for those couples earning $250,000+. If we Californians do not tax ourselves, then the UC system and the blessings it brings with it will be harmed. The children of all California citizens will be victims of a citizenry that is blind to 21st century realities that require an educated population.

Howard R. MelamedSolo, Walnut Creek

A 25-cent per gallon tax on gasoline (not diesel — the trucking industry is damn near dead already) would do the trick and reduce traffic and greenhouse gas emissions all with one quick measure.

John E. ManoogianLaw Offices of John E. Manoogian

First, do away with the Federal and State Departments of Education. Billions to bureaucrats and really very little to schools. Then with that money, use it to promote competition amongst schools and teachers — that is, pay for worth. Voucher programs for all students from money used for the Departments of Education, and parents have the right to choose the school best for their child — whether it be public

or private, religious or non- religious. It probably won’t ever happen because there are so many beholden to unions and don’t believe in choice except in one area.

Dan G. Ryan, Esq.Law Office of Dan G. Ryan


The education of our youth through post-graduate degree programs is the most important function our government has. It should be funded as needed rather than when the legislature

says there is money to pay for it. California doesn’t have a budget crisis; it has a failure of governance both in the executive and legislative branches. The future prosperity and viability of our state depends on a highly educated citizenry. We need to spend what it costs and the entire income earning segment of the state should each pay their fair share. Right now, the cor-porate sector and the highest income earners are not paying their fair share. We need to fix the taxing process by removing the two-thirds requirement for a budget and for raising taxes, and we need to give the legislature oversight authority for the executive branch activities.

Gerald T. RichardsContra Costa Senior Legal Services To paraphrase the words of Groucho: This institution cannot afford both the edu-cation and the football team. The education’s got to go.”

Merritt WeisingerWalnut Creek Family Law Center

Legalize marijuana and tax every sale!

Mitch StevensLaw Office of Mitchell A. Stevens

I have had the pleasure of watching my wife explain that her success is the result of a free public education. My parents lectured me that my most important investment will be my children’s education. Govern-ment needs to put a higher priority on funding education to improve the future prospects of our economic stability.

A. G. AsheLaw Office of Anthony Guy Ashe

Maybe we could get the teach-ers to work for free, and the textbook companies to stop charging for books; and PG&E to provide electricity for free. Or, maybe we could

— raise taxes! There is no free lunch, and no free education.

Joan M. WetherellLaw Office of Joan M. Wetherell

What are we spending per pupil in the public schools, $12,000? What if we just give parents $5,000 if they will take their child out of public school and enroll them in the private school of their choice? We would save $7,000 times, let’s say, half of the students in California. That’s over a quarter of the education budget, which is half of the entire budget. Presto, you’ve saved about one-eighth of the state budget. Would that balance things, or would we still have to cut welfare?

Kurtiss JacobsSolo, Concord

Public education rankings in California have fallen to disastrously low levels over the past 30 years. California used to rank near the top of all states. It’s now ranked near the bottom (50th of 51, including D.C.) in terms of staffing per 1,000 pupils, and 49th in students enrolled per teacher. A paradigm shift is needed to force our elected leaders to get some spine around the way in which education in California is funded. Many of the problems can be traced directly to the tax inequities caused by Prop. 13. Visit www.closetheloophole.com to find a grass roots effort to change the way in which commercial property is assessed and taxed. Repeal of Prop. 13 (at least in part), will bring back some tax equality and allow public education to get the funding it needs, bringing California back near the top of all the states in what we provide to our K-12 students.

Patrick M. CallahanBurnham Brown

We (as the State of California) must first allocate or decide what amount of funding should go to education for K-12 (e.g., $x billion) on a state-wide basis. Such determination would be made annually de novo, not later than February 1 (i.e., February 1, 2010 for the school year that begins August 2010). Such determination would require a two-thirds majority of the legislature. Then, we divide the designated $x billion by the number of children in the K-12 system.We then grant a voucher for each child in the dollar sum determined in the immediately previous sentence. Each child may choose any qualified public or private school using the voucher against tuition. Yes, each local public school system would establish a tuition schedule. If the school decides to charge more than the voucher, the parents can elect to make up the difference. Public schools would have that same option (to charge more than the voucher will pay). If all schools near the child’s home charge materially more than the voucher amount, then the parent is free to home school the child. Then, the market for education (both providers and consumer parents) will take care of quality control. It is universally better for individuals at the local or neigh-borhood level to make millions of inde-pendent purchasing choices than it is for a small number of politicians and bureau-crats to wrest decision making from the people. I am confident that this system would work great, merely by the fact that the politicians, bureaucrats, and union leaders would hoot the loudest against it.

G. Scott HaisletLaw Offices of G. Scott Haislet

Innovation, such as appealing to corporations for sponsor-ships or selling naming rights to the gym, courts, fields, even the library.

Marc BouretThe Bouret Mediation & ADR Firm

16 August 2009

DuRiNG THESE DiffiCulT economic times, the special education students are easy targets for blame. They take money away from programs for GATE students; they take money away from arts programs; they take money away from athletic departments . . . or do they? It is just as easy to say that school districts underserve kids to save their budget and that special needs students get warehoused into special day classes in order to maintain an arts program, the soccer team or an additional GATE class. The unfortunate long-term cost of improperly serving special education students is that our state and federal governments will be funding their care, benefits and housing for far more years than the students are in public schools. I think our state, federal and local budgets are better served by properly serving special education students in the K-12 system because that gives them the greatest chance at being self-sufficient and tax-paying citizens after graduation. Many lawyers get exposed to special edu cation issues throughout their careers. You may have a child with a disability; someone in your immediate family may have a child with a disability; your friend or neighbor may have a child with a dis-ability; you may represent children with disabilities in juvenile court; you may have to counsel parents in a divorce about the special education needs of their children; or you may represent them against local public school districts and county offices of education in program disputes. No

matter how you are exposed to this group of unique students, you will better under-stand the plight of their families by understanding the maze that they must navigate for up to 19 years. Special education services are available to students who qualify from ages 3-22. Prior to age 3, students may receive ser-vices provided by their regional center (Regional Center of the East Bay in the Contra Costa area). Services provided either before or after age 3 may include speech and language therapy, occupational therapy, behavior consultation services, individual aide/tutor services, deaf/hard of hearing instruction, adaptive physical education or academic remediation.

EligibilityStudents who are diagnosed with a dis-ability, which has an adverse effect on their education, and that meet the California Education Code eligibility criteria become eligible for special education. This can be your daughter who is deaf, your sister’s son who is diagnosed with bi-polar dis-order or the little girl in a wheelchair at your child’s school. Those same students may also not qualify for special education services if their disability does not adversely affect their academic performance. Although the local school districts are specifically responsible (pursuant to both state and federal law) to provide special education services, they are also account-able to the public to provide educational services to the masses. Due to the large

volume of services that public schools must provide, it’s easy to turn to the special education students and figure out ways to cut their services. The single most effective way to do this is to either find that a particular student is not eligible for special education services or is no longer eligible for special education services. The need to manage their budget creates a justification for finding fewer students eligible. The conflict created by the needs of a school district to balance their budget and the needs of the students with special education needs is pervasive throughout the IEP process with eligibility issues being just one example. Eligible special education students are entitled to a free, appropriate public education [FAPE]. The definition of that term, in theory, varies for each eligible student because it is built upon each child’s unique educational needs, which are sup-posed to be comprehensively assessed by their local school district. Assessments are another area where conflicts arise.

AssEssmEntsThe law requires that school districts assess students in all areas of suspected disability. A common way to limit the amount of testing conducted is to assert that the range of skills in, say social skills or read-ing, vary so greatly in fourth grade that there was no indication that Johnny needed to have those areas assessed because his skills appear to be in the normal range. How could that possibly be true if Johnny

Are we truly takingmoney away from others

or is it more costlynot to provide

appropriate services?

SPECIaL EDuCatIoNby Roberta S. Savage


is the only student in the fourth grade who: sits alone at recess; is never picked to par-ticipate in groups by his peers; is incapable of participating in group projects, so his team does his work for him; and has the reading skills of a first grader? Is that really the norm or is that merely a way to avoid providing Johnny with services during fourth grade because the school is already impacted? How do Johnny’s parents know whether this is the norm or not? They hire experts like we all do. These expert assessors help them understand whether Johnny’s profile is really in the norm or whether a comprehensive assessment of his needs was not conducted. Parents then take the assessment to the school. The school either acknowledges that the expert has accurately assessed the child’s needs or explains in detail the limitations of the expert’s assessment, which often starts with claiming that the expert is not an educator and thus does not understand when there is sufficient information to suspect a disability. The family has spent a few thousand dollars obtaining an assessment of their child. In the worst case, the school district has now had three to seven staff — includ-ing teachers, administrators and assessors — participate in two multi-hour meetings merely to avoid assessing Johnny in the areas of reading and social skills. The school district has now spent an unknown amount of money, just to avoid assessing this student. The real question we should be asking is, could that money have been

better spent assessing Johnny and pro-viding him with services? Nine times out of ten it would have been better spent and our society as a whole will save money if we teach Johnny to read and have appro-priate social skills in the fourth grade.

sErvicEs And PlAcEmEntsThe final portions of the IEP are lumped together here: services and placement. This is often the most contested part of the process and, not surprisingly, the most challenging and frustrating for parents. Local school districts are required to offer a free, appropriate public education, which as discussed above, is supposed to be an individual determination of each student’s educational needs. How then are there standard recommendations for services by a school district? Why is it acceptable to say that your child gets speech therapy services two sessions per week for 30 minutes, when the family’s expert says that for educa-tional purposes, the child needs three hours per week of service? Could it be that the speech therapist only has room for two times per week 30 minutes on his caseload, or that he is only on your child’s school site two days per week? We rarely accept a similar answer from our doctor: “Sorry Suzy, I am only here every three weeks, so your chemotherapy will occur every three weeks, not weekly as your other doctor recommends.” So why is it expected that parents accept that similar type of statement from the public school? In the cancer example, Suzy will not

benefit from chemotherapy once every three weeks, or it may take her exponen-tially longer to be cancer free. Most people will not accept the costs associated with that, but elongating the time that a child learns to properly communicate with his or her peers can wait? That is also a cost we should not accept.

conclusionSpecial education students and their par-ents are often accused of being litigious, encroaching on the general fund or just too expensive for our public schools. Although it may appear that way in the short-term, the appropriate services at a young age will have a far greater long-term impact on our society as a whole. We may have one less adult to support in a group home or in jail, which not only translates to less money paid out by the county, state and federal governments, but that same person may obtain meaningful employ-ment and pay taxes to those same agencies. Our community should support the appro-priate provision of services to all students that, in the K-12 years, may seem greater for special education students, but in the long-term is better for us all. u

— Roberta Savage is a solo practitioner in Davis and represents a significant number of special education students in Contra Costa County. She is the Co-Chair of CAPCA [California Association of Parent-Child Advocacy]. She graduated from UC Davis School of Law in 1999 and has been practicing special education law since then.

Julie SchumerCertifiedAppellateSpecialistCertified by the State Bar of California Board of Legal Specialization

MOTiONS, AppeALS & WRiTS30 years experience

[email protected]•www.bayareaappellatelawyer.com

— Wanted —Conservatorships

think

Matt Tothas in

pedder, Hesseltine, Walker & Toth, LLp

oldest partnership in Contra Costa County(52 years)

p 925.283-6816 • f 925.283-36833445GoldenGateWay,P.O.Box479

Lafayette,CA94549-0479

AV Martindale-Hubbell

18 August 2009

A stAtutory schEmE thAtgEnErAtEs litigAtion The IDEA contains several components that work in concert to drive litigation. Each student who qualifies for special education services must have an Individual Education Plan (“IEP”). The purpose of the IEP is to formulate a plan to address a student’s needs and identify benchmarks for progress. These decisions are made by an “IEP team,” which shall include the parent and relevant educational pro-fessionals. Theoretically, the IEP team collaborates in a student’s best interests. However, parents are entitled to an attor-ney or advocate whose presence, may in turn, necessitate the presence of a school district attorney. If the parties do not agree on the IEP, the dispute escalates and initi-ates the due process machinery. (“Due process” takes on a special definition as it is applied under the IDEA.)

Much like other civil rights litigation, a “prevailing party” under the IDEA can recover attorney fees. This allows impecu-nious petitioners to pursue meritorious claims, and the courts do award fees to the prevailing party when the parent’s position improves due to litigation. Recently the law has changed to also allow the school districts to recover fees for defending against frivolous complaints or those that are presented for an improper purpose. However, courts have generally been unwilling to award fees to the school districts. Districts often make dramatic concessions because of the specter of attorney fee awards. Additionally, the “stay put” provision of the IDEA increases litigation costs and is subject to serious abuse. During any due process proceeding, the child must remain in “the then current educational place-ment” unless the parent and district agree

to some other placement. As such, once a child has been placed in a private place-ment by a district or a court order, if the district seeks to change the placement, the child must remain at the previous place-ment at the district’s expense during the course of the litigation. Therefore, there is a tactical advantage for the parent to delay the proceedings to allow the student to stay in his or her desired placement. The IDEA contains many procedures that make delay preferable and profitable. These include (but are not limited to): mediation, notice requirements, offers to compromise and ultimately the “due process” hearing itself. Although it resembles civil litigation, due process proceedings under the IDEA lack the formality and enforcement of the federal rules of procedure and rules of court. The lack of formality results in the unnecessary duplication of proceedings and wastes

Parents and attorneysin the

Eye of the Hurricaneby Greg Rolen

The Individuals with Disabilities Education Act (IDEA) is a federal statutory scheme governing special education law. The quintessential unfunded mandate, the IDEA requires school districts to provide students with disabilities a “fair and appropriate public education.” The federal government provides grossly insufficient aid to public school districts to comply with this mandate. The federal government also places the burden on the state and local authorities to provide an administrative procedure to resolve differences between the school district and those seeking the special education services. Although altruistic in its intent, and undoubtedly necessary to assist traditionally underserved students, the statutory scheme has evolved into a confluence of regulations that can propel litigation and create antipathy among the participants. Consequently, special education litigation is education law’s “perfect storm.”


valuable resources. Also, under the IDEA, either party can withdraw a complaint and re-file what is essentially the same complaint at a later date. This practice of withdrawing and re-filing can prolong litigation, increase attorneys fees, and pro-vide tactical motivation to delay hearings. Finally, each party has the right to appeal the matter to Federal District Court and, ultimately, to the United States Court of Appeal. Clearly, the statutory scheme is replete with opportunities for attorney fees to compound exponentially.

humAn EmotionsFuEl thE litigAtion FirEAll the stakeholders have a great emotional investment in these proceedings. The litigation is extremely familiar and per-sonal. The proceedings involve people who know each other, spend a lot of time together and should trust each other. IEP meetings and due process hearings often take place in small school conference rooms where many adults are crowded around a small table. The proceedings involve highly personal and sensitive issues, such as mental illness, the home environment, substance abuse or parent-ing strategies. Finally, the specter of financial motivations on both sides can create animosity. Each side has a genuine, yet almost diametrically opposed percep-tion of the same circumstances. The Parents’ Perspective. Parents feel duty-bound to advocate for their children. Nothing to them is more important or more dear. Every parent has this feeling; however, there is something very sacred about the love between a parent and a special needs child. The parents may feel responsible. They may feel let down, put upon or shortchanged. They may feel angry or hurt. They may feel determined or blessed. Whatever they feel, their feel-ings are real. The lay parent is initially forced to rely on trusted educational professionals. Their child’s teachers, principals, school psychol-o gist and program specialists went to school to help their child. Parents must meet with a large team of highly trained profes-

COST EFFECTIVE DISPUTE RESOLUTION

Hon. Alfred

Chiantelli(Ret.)

Hon. Richard

Flier(Ret.)

Hon. Stephen

Foland, Comm.

(Ret.)

Hon. RichardHodge

(Ret.)

Hon. JoanneParrilli

(Ret.)

Hon. BonnieSabraw

(Ret.)

Hon. M.O.

Sabraw(Ret.)

Hon. DouglasSwager

(Ret.)

Hon. James

Trembath(Ret.)

MichaelCarbone,

Esq.

EricIvary,Esq.

MichaelMcCabe,

Esq.

Dorene Kanoh, VP50 Fremont St., Ste. 2110San Francisco, CA 94105

tel 415.772.0900fax 415.772.0960

www.adrservices.org

attention aDR & tax Practitioners

For further information, please contact Nancy Young at [email protected].

Display Advertising

Size 1-time rate 3-time rate 6-time rate 12-time rate fullpage $550 $500 $450 $375

⅔page $500 $425 $375 $340

½page $415 $370 $350 $290

⅓page $350 $310 $280 $225

¼page $275 $250 $230 $195

⅙page $215 $195 $175 $140

bus.card $165 $150 $135 $105

⅟₁₂page $125 $110 $90 $80

TherehasbeenachangetotheContra Costa Lawyer schedule:TheTaxissuewillnowbepublishedinFebruary2010,andwearesubstitutingitwithanADRissue,whichwillbepublishedinNovember2009.Belowisarevisedschedule:

Issue Theme Ad Deadline October2009 Bench/Bar August20,2009

November2009 ADR September21,2009

December2009 75thAnniversaryissue October20,2009

January2010 AnnualBarissue November20,2009

February2010 Tax December21,2009

u

20 August 2009

sionals who tells them what is best for their child. Who are they to question these experts? However, their child may not be making progress or it is unclear what the school is doing. Parents are subjected to educational jargon, such as intervention, differentiation, push in, pullout, resource, special day class, support service, teaching to the whole child or other euphemistic terms of art that likely don’t mean what they think they mean. Parents may or may not be aware that special education service options are available, and what legal rights they have. When parents become aware of their legal rights, they are forced to navigate a laby-rinth of regulations that are so complex and technical, only the most specialized attorneys fully understand them. The parents then consult an attorney or advo-cate who tells them that the district must fund a perfect private program that was not offered for their child, a feeling of betrayal and mistrust can ensue. They search for answers. They question the caring and competence of the educational professionals. Finally, fully understanding that public education funding is flagrantly deficient, they impugn a financial motive upon the district. Thus, parents who are experiencing unimaginable stress with their child feel as though there was col-lusion or lying or unprofessionalism — or any combination thereof — which hurt their child. They feel they must do what-ever is necessary to right this wrong. Not all parents experience all or any of these emotions. But many do. These compli-cated and often unknown psychological and emotional variables often increase litigiousness and intransigence. The School District’s Perspective. Special education staff members have devoted their professional lives to educating chil-dren with disabilities. They have chosen a difficult path with little financial reward to help those less able to help themselves. They have achieved advanced degrees and remained current on the recent scientific research in their discipline. They have direct experience serving children with special needs everyday. They are asked to do more with ever dwindling financial

resources. They are there for the kids. It is only human to recoil when your commit-ment and capability are challenged by an unreasonable parent, the parent’s attorney and sometimes your own counsel. The IEP team must compare schedules and convene a time and place that is convenient for parents. This is rarely con-venient for the educators. The meetings can be long and tedious. The sense of dread is compounded by the anticipated presence of the parents’ attorney. There is an immediate concern that the case will proceed to litigation. This involves extra testing, extra duties, witness preparation and hearing time. Parents and their attor-ney are spending the entire IEP probing deficiencies in the program, the testing, the assessment, the credentials and com-mitment of the school personnel involved. Don’t they understand that our budgets are limited? Don’t they understand that their child regularly acts out? Don’t they understand that progress is incremental? Don’t they understand that issues in the home may be affecting the educational performance? Don’t they understand the program we are offering can help? Don’t they understand we are doing the best we can? As the IEP meetings become more prolonged, familiarity breeds contempt and the district staff becomes more intrac-table. Further, mediation and alternative dispute resolution have proven unsuccess-ful. There is a growing feeling that parents are unreasonable and driven by personal animosity against the staff. There is an internal struggle between not wanting to give an unreasonable parent satisfaction and just wanting it all to go away. The staff has repeatedly prepared for the hear-ing, and the case has been repeatedly continued without regard for the district staff’s schedule or workload. Can’t our attorney do anything about this? And just to add insult to injury, the student’s annual IEP meeting comes around again. Now, we must sit in the same room, with the same parent and the same attorney who has been the bane of my existence for the last year, and the pressure is compounded by the upcoming due process hearing.

Clearly, a bunker mentality can develop, which is not conducive to resolution and further fuels the litigation. Not all district personnel allow this frustrating process to impact their decision making. However, we are all human and it is naïve to ignore human frailty.

in thE EyE oF thE hurricAnEHow can the author speak with such cer-tainty about other peoples’ thoughts and emotions? It is because my wife and I are at the vortex of this whirlwind. As General Counsel for the Mt. Diablo Unified School District (“Mt. Diablo”), I oversee Special Education litigation and am ultimately responsible for managing legal costs and settlements related thereto. More impor-tantly, I am the father of three very special children, two of whom receive special edu cation services. My wife, Diane, repre-sents school districts throughout the state in special education litigation and is simul-taneously her children’s most zealous advocate. We have filed the briefs, argued cases, seen abuses, experienced frustration and felt deep pain. We have spent countless hours ruminating about the systematic defects that are only magnified by human error, including our own. Despite our rever-ence for the law, we come to the inescapable conclusion that tinkering with the statutory scheme will take us further down the road to perdition. “Due process” in the context of the IDEA is an imperfect instrument to assure justice when everything about the whole picture: the time, the money, the waste, the greed, the disabilities and the shattered dreams is so unjust. Parents work hard. Special education staffs work hard. Special education assistants work hard. The doctors and attorneys work hard; but the law doesn’t work. That is not to say that the intent behind the law cannot work. I know from personal experience that these children have excep-tional talents and exceptional hearts. They deserve a chance to succeed, and our country — now, more than ever — needs their exceptional talents and exceptional hearts. We need the federal government to have the courage of its historic convic-tion and fund special education. Mt.


The Law Offices of David M. Lederman

DAViD M. LeDerMAnCertified Family Law SpecialistState Bar Board of Legal Specialization

TOM SMiTHAssociate Attorney

3432HillcrestAvenue • Suite100 • Antioch,California94531309LennonLane • Suite102 • WalnutCreek,California94598

Phone925.522-8889 • Fax925.522-8877www.ledermanlaw.net

practicing exclusively in all aspects of Family Lawin Walnut Creek and Antioch

Diablo spends approximately $67 million of its $280 million budget on special education. The federal government funds less than one-fifth of its mandate. The balance is funded through state and local sources. Consequently, $34 million comes from Mt. Diablo’s general fund and “encroaches” on the general education budget, creating a constant unhealthy tension between the special education and general education populations. This ten-sion is compounded by the fact that Mt. Diablo has recently cut annual ongoing expenses in excess of $30 million due to state budget shortfalls. This is an irre-futable illustration of a system that is in serious trouble — a ship that is about to sink in the storm. Additionally, we have to create pro-grams that really serve these kids. If we can redirect some of the resources that have been siphoned off and used for litiga-tion to create safe and effective programs, the law can fulfill its purpose. When school districts cannot provide adequate programs, students must be served in private placements. These place-ments can be very specialized and very expensive. The school district, and, by extension the taxpayer, must bear this cost. When taxpayers become aware of this, they are understandably dismayed that they are paying for a stranger’s private school in Connecticut. Yet again, the emotional tension builds and the circum-stances become more dire. My family and I live in the eye of this hurricane. We are pounded from pillar to post by legal maneuvering, unfunded man dates, attorney fee challenges, inappro-priate programs and overworked educa-tors feeling like the only light at the end of the tunnel is an oncoming train. But when we kiss our children goodnight, we vow to get up the next morning and try to do better.... because we must. We must do better. u

— Greg Rolen, General Counsel for the Mt. Diablo Unified School District, oversees Special Education litigation and is responsible for managing legal costs and settlements for the school district.

Putting your clients’ needs fi rst.

• Expert planning. Our integrated plans can combine the most up-to-date knowledge in trust, estate, tax, custody and banking services.

• Expert solutions. From building wealth and minimizing taxes to effectively implementing wealth transfers and philanthropic wishes.

• Expert service. We’re independent and locally owned with more than 103 years of experience. And with the only trust department headquartered in the East Bay, you have convenient access to all of our trust professionals.

Customized Investment and Trust Services from Mechanics Bank

IRA HILLYERSENIOR VICE PRESIDENTINVESTMENT MANAGEMENT & TRUST SERVICES

1333 N. California Boulevard, Suite 600Walnut Creek, CA 94596925.256.3033www.mechanicsbank.com

InvestmentManagement

Trust &Estate Services

PrivateBanking

FinancialPlanning

MEC 2718 Contra Costa Lawyer Mag 4.6875x4.5625_v5.indd 1 8/15/08 3:22:36 PM

22 August 2009

by Carol M. Langford

ethics corner

Please send your ethics questions to:Carol Langford

100 Pringle Avenue, Suite 570Walnut Creek CA 94596

[email protected]

(If your question is answered in a future column, your name/firm name will be omitted.)

lET’S TAlK MoNEy . . . specifically, borrowing money from your trust account. In this economy — when jobs and clients are scarce and people are struggling to keep their heads above water — it may be tempting for an attorney to dip into client funds in order to meet monthly expenses. What harm could come from it, after all, if you have every intention of putting the money back before the client is even aware it is gone? The Bar will likely never find out, will they? Many attorneys have gone down a similar path of reasoning. It is often a path that can lead straight to trouble. It does not always lead to trouble since the Bar does not randomly audit trust accounts. It is that lack of a watchdog that creates the temptation. Before you are tempted to “borrow” money from the trust account, however, let’s discuss the law on the issue and where the pitfalls lie. First, the rules regarding how an attorney must treat client funds are very specific, unlike other rules. California Rule of Professional Conduct 4-100 addresses an attorney’s duty to preserve the identity of funds and property of a client. Rule 4-100 states that all funds received or held for a client “shall be deposited in one or more identifiable bank accounts labeled ‘Trust Account,’ ‘Client Funds Account,’ or words of similar import.” There’s no wiggle room there. In addition, no funds belonging to the attorney or firm can be

commingled in the client account. That means that a lawyer’s fee has to be taken out immediately so that only client funds sit in the account. The benefit of the rule to the client is obvious; but the benefit to the lawyer is that keeping a separate client fund from the start is a practice that saves you a lot of frenzied last-minute fund transfers when you finally close out a case or need to part ways with a difficult client. For example, let’s say your services are ter-minated. You need to refund client monies still in your possession, but you have commingled them with your own money or withdrawn client-owned funds for your own use. You are now going to have to scramble to get the money to refund the client from somewhere. Desperate fund transfers will follow, which means you have left a trail of evidence of your perfidy for the Bar’s forensic accounting experts to find if they get ahold of your records. How easy are trust accounting records to subpoena? So easy that it is really not worth your effort to fight the State Bar about it. Rule 4-100(B)(3) requires that an attorney maintain complete records of all funds, securities, and other property of a client that come into the attorney’s possession. An attorney must render appropriate accounts to the client regard-ing those funds. The recordkeeping of trust accounts is Byzantine, and even the Bar knows that probably half of the Bay

Area law firms are not in technical com-pliance. The truth is they only start caring about it when a client complains that a lawyer won’t pay them money owed. The State Bar offers online a 108-page pdf version of their Handbook on Client Trust Accounting for California Attorneys. It is free of charge and located at http://cal-bar.ca.gov/calbar/pdfs/ethics/CTA_Handbook.pdf. Proper fund accounting does not end when the case is over or the client has terminated your services. The rules require that you maintain these records from the date of receipt of client funds through the period ending five years from the date of disbursement of such funds. So don’t throw your records away, or you will be found to be automatically not in compli-ance with accounting rules, and you will still have to spend enormous time digging up the records for the Bar. Let’s turn to the current level of disci-pline levied by the Bar against attorneys who take a small dip into their client’s


trust account. Well, discipline has gotten harsher under Scott Drexell’s tenure as Chief Trial Counsel of the State Bar, but hopefully that will change since his con-tract was not renewed. Based on a survey of cases from the last three months, how-ever, the going rate can be as high as three months suspension for a small violation or as high as one to two years suspension depending on the amount of the theft, whether there was client harm, and other factors such as additional misconduct. When trust violations are coupled with other misconduct, as they often are, the punishment gets even steeper. One attorney was disbarred for misappro-priating over $26,000 in client funds, violating trust account rules, failing to provide an accounting to his client, and preparing and submitting false docu-mentation of his defense of his State Bar matter to the Bar. What if you would rather not deal with client trust accounting rules and prefer to take something else from your client — such as a car or a really nice rug — to compensate you for your services? Rule 3-300 says that an attorney shall not enter into a business transaction with a client unless the transaction is fair and reason-able to the client. So, you may not be able to accept that mint condition vintage Mercedes as payment for drafting a lease agreement. However, this doesn’t mean that trading goods for services is com-pletely out of the question. Accepting a car, for example, as payment from your client is fine as long as you make sure that it is a fair and reasonable transaction — fair and reasonable to your client, that is. In these tough times, a client may be happy to offer goods for services and there is no reason a lawyer can’t do that if it is done right. u

— Carol M. Langford is an attorney that specializes in providing ethics advice and State Bar defense to lawyers throughout California. Her office is in Walnut Creek, California. She is also an adjunct of professor of ethics at UC Hastings College of the Law.

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

elder Law is

Alzheimer’s planning

If the diagnosis is Alzheimer’s, call elder law attorney

Michael J. young Estate Planning, Disability, Medi-Cal,

Long-term Care & VA PlanningProtect your loved ones, home and independence.

n925.256.0298

www.youngElderlaw.com1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

Willows Office Park p 1355 Willow Way, Suite 110Concord, California 94520

Telephone (925) 798-3413 p Facsimile (925) 798-3118Email [email protected]

and MEdiaTiOn CEnTEr

ron Mullin

Conservatorships

Medi-Cal Planning / Eligibility

Estate Planning

Elder Law

Please note

new Address!

24 August 2009

local civil jury verdicts

Our last article reported January and February 2009 civil trial statistics. We received statistics for March, April and May in a timely manner, but didn’t include until now since so few attorneys sub mitted actual trial reports. We write a Verdicts column when we have trial reports to talk about. Absent trial reports, there is no point in writing an article. At least two judges regularly ask why their trial summaries do not appear in this column. The same response applies as it has for years: if lawyers do not report their civil jury verdicts to me, I cannot write about those verdicts. The point is, please report your trials to me. Encourage your colleagues to do the same.

March saw two civil cases go to jury ver-dict in our superior courts, with the plaintiffs prevailing in both. Of April’s three civil jury verdicts, the plaintiffs

prevailed in two cases and the defendant in one. And the plaintiffs prevailed in all four of May’s civil jury verdicts.

Our first case, Vickey S. Hough v. Costco Wholesale Corporation, Case No. C07-01920, involved allegations of a slip and fall at a Costco store. The Honorable Thomas Maddock presided. James J. O’Donnell of Walnut Creek represented the plaintiff, while Robert McNulty, also of Walnut Creek, represented the defendant. The plaintiff in this case alleged she slipped and fell on some grapes as she left the checkout area, further claiming the need for knee replacements on both legs as a result of the incident. She claimed an unsafe condition, in that Costco did not follow its own clean-up procedures. Costco, on the other hand, denied lia bility, claiming insufficient notice of the spill and denied causation for knee replace-ments and related loss of earnings.

At trial, Costco stipulated that the medicals and loss of earnings were reason-able, but denied they were related to the alleged fall. Prior to trial, the plaintiff demanded $450,000, then reduced that to $25,500 at a second pretrial mediation. At trial, the plaintiff’s counsel asked the jury to award $250,000. The defendant made an initial CCP 998 offer of a waiver of costs, then offered $5,000 by way of a later CCP 998 offer. The jury returned a verdict in favor of the plaintiff in the amount of $3,650. (Yes, that is three thousand, six hundred and fifty dollars.)

An interesting settlement in our county required us to omit the names of the defendants. The plaintiff was Gary Taylor, a pipefitter, and the case was venued in Contra Costa County. The Honorable Raul A. Ramirez (Retired) of Sacramento mediated the case. Concord’s Michael

P.O. Box 1867 Benicia, CA 94510 (925) 229-2929 or (707) 279-1818

email: [email protected]

Specializing in

law firm brochures

and newsletters

Young DesignProduction

D E S I G N

W R I T I N G

E D I T I N G

Young Design & Production is the designer for the Contra Costa County Bar Association

Nancy YoungOwner

925.790-2600 • [email protected] • www.amllp.com

by Matthew P. Guichard


Goforth represented the plaintiff in both the personal injury case and his workers’ compensation case. The plaintiff was injured while work-ing at an industrial site in Martinez. He alleged that his injury occurred when he was on a scaffold that was not safely constructed. He also claimed the owner failed to protect the integrity of the site, and that his employer failed to inspect the work site and failed to properly train his workers. As a result of these injuries, the plaintiff alleged he could not return to work as a pipe fitter. The case settled at mediation for the gross sum of $1,500,000. The workers’ compensation intervenor agreed to waive its $322,614.17 industrial lien.

Robert Hodges of Walnut Creek reported on his successful defense verdict in the San Francisco Superior Court. Van Hoesen vs. Anthony, Case No. CGC-06456359, was tried before The Honorable Tovar Mason. Allan Lerch of San Francisco represented the plaintiff and Robert Hodges of the McNamara firm repre-sented defendant. On July 13, 2005, the 48-year-old plaintiff underwent facial cosmetic plastic surgery, including neck and cheek lift, upper and lower lid blepharoplasty, and liposuction of her upper arms. Post-operatively she complained of dry-eye syndrome, allegedly due to her inability

to fully close her eyes, which she contended was due to the plastic surgeon’s removal of too much skin from the eyelid procedure. She sought treatment from approximately 22 separate practitioners post-operatively. As a violinist for the San Francisco Sym-phony, she contended she was disabled. The defense countered that the surgery was performed within the standard of care, that all surgical risks were fully discussed including the possibility of lagophtalmos (inability to fully close the eyelids), and that the risk of permanent lagophthalmos was remote and rare, and most likely caused by scar tissue. After a 10-day trial, the plaintiff’s attorney asked the jury to award $330,000 in damages to his client. The defense counsel asked the jury to return a defense verdict. The jury deliberated for approx-imately 11 hours over two days and returned a defense verdict on behalf of the plastic surgeon.

And in the case of a losing party reporting on an out-of-county jury trial verdict, here is our report. Brunson v. Oliva, Case No. CV04-000009, was tried before The Honorable Kathleen M. White in Yolo County Superior Court. Matt Guichard and Jeffrey Stromberg represented the plaintiff, while Thomas J. Doyle of Sacra-mento represented the defendant doctor. The plaintiff consulted with defendant surgeon for a mass on the left side of the

plaintiff’s neck. The defendant performed outpatient surgery at a Woodland medi-cal clinic. The defendant obtained the pathology report that indicated the mass was a schwannoma (a benign tumor of a nerve). The only major nerve in that area of the neck is the spinal accessory nerve. The plaintiff was not advised that the spinal accessory nerve had been excised and was instead referred for physical therapy. After months of continuing pain and significant atrophy of his trapezius muscle, the plaintiff learned of the injury to the spinal accessory nerve. He then underwent a rare surgery to reattach muscles in his back and shoulder to com-pensate for the total loss of the trapezius muscle. To this day, the plaintiff cannot fully raise his left arm. Interestingly, had the injury been discovered within six months, a nerve graft would have been possible, and the trapezius muscle saved. The jury found the defendant’s conduct in excising the spinal accessory nerve, then failing to advise client that he had excised the nerve, did not fall below the standard of care. u

— Matthew P. Guichard is a principal in Guichard, Teng & Portello, APC. Send case information to: 1800 Sutter Street, Suite 730, Concord 94520 or contact Matt at 925.459-8440, fax: 925.459-8445 or [email protected].

ARLeNe SeGALLaw Offices of Arlene Segal

Litigation - Mediation Trust and Estate Disputes • Financial Abuse

100PringleAvenue,Suite780•WalnutCreek,CA94596telephone (925)937-4224•fax(925)937-4273

note newAddress!

attorney Counseling EveningsThe CCCBA offers ACE Nights in various subject matters, such as family, landlord/tenant and immigration law. The programs are only two hours in length. They have been an invaluable service to the community — and the feedback received has been fantastic!

If you’re interested in volunteering for an upcoming ACE Night, please contact CCCBA’s Michele Vasta at 925.370-2548 or [email protected].

26 August 2009

Walnut Creek WindoW offiCeLease a fully furnished window office w/sec station and tons of amenities. On-site conf rooms, receptionist service, law library, telephone system, voice mail, notary (on-site), copy machines, postage machines, and mail-handling. Professional Class A bldg. w/plenty of parking, great location, and easy access to freeway and BART. Call Kristie, 925.947-0100, x224.

lafayette transit Village offiCe spaCe Office and paralegal station in business law firm next to BART in Lafayette (27 min. to Montgomery Street BART station). Receptionist, conf. room, parking, ground floor, only one block from post office and Lafayette’s restaurant row. Call Jim or Michelle at 925.284-4447.

961 ygnaCio Valley road, Walnut CreekShare building with 7 solos. One office available. All amenities. 925.938-2460.

2 ConferenCe rooms for rentLocated near the courthouse in down-town Martinez (CCCBA office). Standard room (seats 10-12) $150 all day/$75 half day; Mobile room: (full - seats up to 30) $200 all day/$100 half day; (subdivided - seats up to 10) $75 all day; $40 half day; both rooms $250 all day/$150 half day. $20 hourly rate. Call Manny, 925.370-2549.

classifiedsoffices for rent... contract

attorneys...job

opportunities...

advertisers’ indexADR Services, Inc.. . . . . . . . . . . . . . . . . .19

Roger F. Allen . . . . . . . . . . . . . . . . . . . . . .7

Armanino McKenna LLP . . . . . . . . . . . . .24

Barr & Barr Attorneys. . . . . . . . . . . . . . . .27

Braverman Mediation & Consulting . . . . .13

Diablo Valley Reporting Services . . . . . . .28

Glenn & Dawson LLP. . . . . . . . . . . . . . . .12

Law Offices of Arlene Segal . . . . . . . . . . .25

Law Offices of David M. Lederman . . . . . .21

Mechanics Bank . . . . . . . . . . . . . . . . . . .21

Mullin Law Firm . . . . . . . . . . . . . . . . . . .23

Mark V. Murphy . . . . . . . . . . . . . . . . . . . .12

Pedder, Hesseltine, Walker & Toth, LLP. . 17,26

Julie Schumer. . . . . . . . . . . . . . . . . . . . .17

Scott Valley Bank. . . . . . . . . . . . . . . . . . . .7

West . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Young Design & Production. . . . . . . . . . .24

Michael J. Young. . . . . . . . . . . . . . . . . . .23

Youngman, Ericsson & Low, LLP . . . . . . .26

Zandonella Reporting Service . . . . . . . . .27

probate paralegal to attorneysJoanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call 925.689-9244.

priVate inVestigatorBob Bailie Investigations can help to find that witness and confirm facts. Over 30 years of experience. Call 925.934-4904 or email [email protected] for a seasoned professional. Lic. #2328. Get it done right!

professional announcements

To place a display or classified ad, call Young Design & Production at 925.229-2929 or email young-design @prodigy.net. Display ads start as low as $80 per month while classifieds run as little as $36 per ad.

Youngman, ericsson & Low, LLP 1981 North Broadway • Suite 300Walnut Creek, CA 94596

Tax Lawyers.

(925) 930-6000

WindoW offiCe – Walnut Creek Treat Blvd near BART. Conf room, fax, copier, good freeway access. Parking. What a deal – only $450/mo. 925.939-2544.

bishop ranCh offiCe spaCe Financial planning firm has 2 offices avail within suite. Rents $800 to $1000/mo., shared conf. rm, recep area, kitchen. Great location! Call 925.866.1246.


Will & Trust Litigation

Elder Abuse Litigation • Conservatorships

B A R R & B A R RA T T O R N E Y S

Edward E. Barr Christopher M. MooreLoren L. Barr* John Milgate, Of CounselJoseph M. Morrill Tracey McDonald, Paralegal

101 Gregory Lane, Suite 42 • Pleasant Hill, CA 94523-4915 • (925) 689-9944

*Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal Specialization

Documents

Contra Costa Lawyer - CCCBA · The Contra Costa Lawyer (ISSN 1063-4444) is published monthly by the Contra Costa County Bar Association (CCCBA), ... Ferrari Sponsors Carroll, Burdick