Preparing a Witness for Trial: Tips for New and Young Associates

Yujin Chun, a Senior Associate in Meyers Nave’s Trial & Litigation Practice Group, shares her tips for preparing a witness for trial in an article published in the February 2021 issue of Los Angeles Lawyer magazine. Yujin is an Executive Committee Member of the Los Angeles County Bar Association’s Barristers/Young Attorneys Section. The mission of the Barristers/Young Attorneys Section is to provide opportunities for new and young lawyers to develop legal skills, build a professional reputation, network beyond each member’s workplace and promote public service projects. The Barristers/Young Attorneys Section also provides a forum for new and young lawyers to develop leadership skills and to interact with judges, experienced attorneys, and other Barristers/Young Attorneys members. Yujin’s article is available here and provided below.

Preparing a Witness for Trial, by Yujin Chun
A witness can make or break a case. A good lawyer’s skills will be evident not only in his or her questioning of the witness, but also in how that lawyer’s witness performs on the stand. Often, before a junior lawyer has the opportunity to take trial testimony, he or she will be tasked with preparing or helping to prepare witnesses. There are several considerations to keep in mind while performing this important task.

Instead of a specifically worded script of questions, the handling attorney should prepare an outline of topics focused on the points that need to be established in the direct testimony. While practicing, the attorney should ask the same question in different ways to better prepare the witness. The witness and attorney should run through the entire examination multiple times, from swearing in to the final question. The witness should be informed of when to expect objections and to let the attorney handle the objections instead of the witness reacting to them.

If using demonstratives, the attorney and witness should practice with the demonstratives present as well as without in case there are technical difficulties (such as may happen in video or remote testimony) or sustained objections resulting in being unable to use the demonstratives. For expert witnesses who create their own demonstratives, the attorney and witness should review the demonstratives multiple times to ensure that everything is accurate and as produced to the other side in discovery.

Practice Sessions
To practice cross examination, the attorney should try out different styles and run through the entire examination several times. Each practice session should involve questions asked in different ways to help prepare for whatever style the opposing side adopts. If possible, another lawyer should conduct at least one practice run of the cross examination while the examining attorney raises the objections as he or she would do at trial.

During practice, the witness should experience the “worst case scenario” of an aggressive cross examination, which also includes completely irrelevant questions. The goal is to genuinely throw off the witness for the first time prior to the actual testimony, so that the handling attorney can prepare for how that witness responds in those situations and advise on what to do. The witness should understand that the cross-examination will be different from a deposition, and that there will be demands for concise “yes” and “no” answers. There may be gaslighting tactics the witness should prepare for as well. Finally, the witness should know that there will be opportunity to provide context for certain answers on redirect.

While practice is important, the witness should not be over-rehearsed. When things seem to flow almost on “auto-pilot,” the witness runs the risk of becoming rattled when there is a long discussion on a particular objection or if the judge orders that an entire line of questioning be dropped. Such a witness would immediately lose credibility with the jury, as would the over-rehearsed witness who stops paying close attention to each question and accidentally gives the wrong response. If possible, the attorney should video-record practice sessions so the witness can see how he or she comes across in response to the questions.

Throughout the entire preparation period, communication is key. For those who have never been a witness before, it is especially important to provide as much information as possible and make him or her comfortable with asking questions about the process. The lawyer needs to understand what the witness is comfortable with and what apprehensions, if any, the witness has. Depending on the experience level of the witness as well as the witness’s familiarity with the case,  it may be beneficial to explain what the attorneys are trying to accomplish with his or her testimony, on both sides. On the other hand, some witnesses may start to change their testimony in an attempt to “help,” characterizing facts to fit what they believe would be beneficial for the case. This can be detrimental, and often incurable. Above all, the witness should be informed of the utmost importance of telling the truth under oath.

Unexpected Situations
The lawyer should share with the witness various unexpected situations that can arise, what to do if the witness forgets a factual detail or an instruction, what to do when there is an objection (from either the opposing counsel during direct or from the lawyer during cross), whatever insight there is about the opposing counsel and the judge, and more. However, the lawyer should pay close attention to discovery and disclosure rules when doing so, as those communications may be compelled in some circumstances.

Some witnesses will need guidance on posture, dress, pace, and more. The witness should understand who will be in the room: the judge or other neutral, the jury if it is a jury trial, the attorneys, court reporters, bailiffs, and those who may be permitted to spectate. To the extent possible, the lawyer should attempt to minimize the number of possible surprises for the witness on the day of testimony.

Finally, the lawyer should ensure that his or her witness is clear on the logistics for the day of testimony: where to go, how to get there, what to do before and after the testimony, and more. The lawyer should have multiple lines of open communication available so the witness can reach out with last minute questions. Preparing a witness for trial testimony can be a daunting task for a junior  lawyer, but with sufficient planning and care it can be an enjoyable and rewarding experience.

Employers’ Top Three Questions About COVID-19

As COVID-19 vaccines gradually begin to roll out, employers are asking myriad COVID-19 vaccination related questions, including how employers can meet EEOC requirements, increase workplace safety, and minimize risk. Our Labor and Employment Law attorneys are helping California employers navigate the complexity of federal and state laws, MOUs, personnel rules, and practical considerations related to creating and implementing a mandatory or voluntary vaccination policy.

In the February issue of North County Lawyer, Meyers Nave attorneys Arlene Yang and Angelica P. Benito published an article answering the three most common questions being asked by employers.

  • Can employers require employees to obtain COVID-19 vaccinations?
  • Should employers mandate COVID-19 vaccinations?
  • What happens if many employees refuse to be vaccinated?

Please click here to read Arlene and Angelica’s article.

What’s New in California’s Density Bonus Law?

California’s Density Bonus Law provides housing developers with tools to encourage the development of affordable and senior housing. The California Legislature recently passed legislation that provides for an 80% density bonus to be granted to 100% affordable housing projects, the largest density bonus ever required under California law. That legislation, Assembly Bill 1763, also requires other benefits to be provided to 100% affordable projects which allows them to be built denser and taller than under prior law. The changes will be particularly helpful to affordable housing projects that qualify for federal and state low income housing tax credits, which are the types of housing projects most often developed as 100% affordable.

Meyers Nave Senior Of Counsel Jon Goetz outlined these legislative changes in his article published in the March 2020 issue of North County Lawyer. Please click here to read his article. These legislative changes are also included in the 2020 update of Jon’s Guide to the California Density Bonus Law. Please click here to read or print out the 2020 Guide. If you have questions about the Density Bonus Law or information in the Guide, please contact Jon Goetz at 800.464.3559 or jgoetz@meyersnave.com.

Social Media & Government: What Are the Rules of Engagement?

Government entities and elected officials are becoming more accessible and connected to constituents through the ubiquitous use of social media, email, text messaging and other communication technologies. The 21st century question is what may government entities and elected officials do and not do to regulate the public’s participation in their social media accounts? Once social media accounts are used for official business, there may be limited ability to restrict or block users or comments on the accounts.

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint-based discrimination. Deborah Fox, Chair of Meyers Nave’s First Amendment Practice, published an article in the Public Law Journal of the California Lawyers Association that explains the court’s unanimous opinion in Knight First Amendment Institute v. Donald J. Trump. Please click here to read her article.

AB 1763 Allows Affordable Housing to be Built Denser and Taller

Assembly Bill 1763 permits 100% affordable housing projects to be built denser and taller through three modifications to current law that are designed to help reduce costs associated with the development of affordable housing. Meyers Nave attorney Jon Goetz published an article in the Daily Journal’s “New California Laws Special Report” that outlines AB 1763’s changes to current law. The content of his article is summarized below. AB 1763 is one of over twenty housing bills approved by the California Legislature in 2019, each one taking a different approach to easing the state’s housing crisis. Please click here for a brief summary of the entire package of new housing laws.

Higher Density Bonus

For housing projects where all units are affordable to low and very low income residents, AB 1763 more than doubles the density bonus to 80%. Before AB 1763, California’s density bonus law (California Government Code Sections 65915 – 65918) focused primarily on projects with a mix of affordable and market rate housing. Existing law provides developers up to a 35% increase in project densities, set on a sliding scale based on the amount of affordable housing provided. The 80% density bonus is the largest ever provided by state law and is the first time the Legislature has specifically tailored a density bonus to completely affordable housing projects. If the project is located within a half mile of a major transit stop, AB 1763 also eliminates all restrictions on density and allows a height increase of up to three stories or 33 feet. For a detailed explanation of the density bonus law, please see the “Guide to the California Density Bonus Law” co-authored by Meyers Nave attorney Jon Goetz.

More Incentives and Concessions

In addition to the density bonus, California’s density bonus law provides developers with “incentives” and “concessions” to help make the development of affordable and senior housing more economically feasible, such as reduced setback and minimum square footage requirements as requested by the developer, and financial benefits at the option of the local government. Projects qualifying for a density bonus are currently entitled to one to three incentives and concessions, depending on the amount of affordable units provided. AB 1763 provides a fourth incentive and concession to 100% affordable projects. The local government is required to grant the applicant’s proposed concession or incentive unless it would not reduce project costs, would cause public health or safety or environmental problems, would harm historical property, or would be otherwise contrary to law. Qualifying developers are entitled to incentives and concessions even without a request for density bonus units.

Better Parking Options

California’s density bonus law also sets special parking ratio requirements for qualifying projects, ranging from one space for one bedroom units to two and one-half spaces for four bedroom units, which can be much lower than local parking standards require. Lower parking standards apply for density bonus projects adjacent to transit. For housing projects that qualify as a special needs or supportive housing development, AB 1763 completely eliminates all local parking requirements. Reductions in required parking can often be controversial for proposed housing projects, but they can lead to large savings in land costs for those projects.

Board Member Compensation: Special Rules for Special Districts

The California Government Code, through principal or special acts, generally provides special districts with the authority to compensate board members. The first step in understanding what can and cannot be done in terms of compensation is to check the special district’s formation or enabling documents to determine whether the district is governed by a principal act or a special act. Identifying which statutes govern a district is important because these different statutes often determine the maximum amount of compensation a board member may receive, how and if board members can increase compensation, and whether board members may be reimbursed for job-related expenses and receive benefits such as medical, dental, vision, and life insurance.

However, as if often the situation with legislation, some of the principal acts and special acts that regulate special districts can raise more questions than they answer and some statutory language could be open to different interpretations. To help special districts and their boards understand board compensation law, make decisions and solve problems, Meyers Nave Principal Richard Pio Roda prepared a special guide that was published by the California Special Districts Association. The topics covered in Rich’s report include:

  1. Which districts are governed by principal or special acts?
  2. Is there a maximum or minimum compensation for board members?
  3. Are there procedures for increasing board member compensation?
  4. What are the considerations for reimbursing job-related expenses?
  5. Can board members receive benefits such as medical and dental insurance?
  6. How do small districts with small budgets handle board compensation?

Please click here to read Rich’s Special District Board Compensation Guide.

Knight v. Trump: Second Circuit Sets Rules on Blocking Followers from Social Media Accounts

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint based discrimination. In its unanimous opinion in Knight First Amendment Institute v. Donald J. Trump, the Second Circuit affirmed the lower court in full, finding the account to be a public forum because it was opened as an “instrumentality of communication” for “indiscriminate use by the general public.” In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice and intent in operating the account.

What does the decision mean?
The Second Circuit’s decision makes clear that where government officials open their social media accounts to the public as a way of communicating about official business, then their accounts will be analyzed under the public forum doctrine, which prohibits selectively blocking “persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

What doesn’t the decision mean?
The Second Circuit opinion clearly points out that not every social media account operated by an elected official will necessarily be a public forum. The outcome of that inquiry will be informed by how the official describes and uses the account, to whom features of the account are made available, and how others, including government officials and agencies, regard and treat the account.

What should elected officials and government entities do next?
Elected officials and government entities that wish to regulate participation on social media accounts should draft guidelines for posting and removing comments. To pass constitutional muster, factors to consider include making sure that comments will not be hidden or deleted based on viewpoint, users will be blocked only for repeated violations and for a limited period of time, and personnel responsible for managing social media accounts will implement guidelines in a viewpoint-neutral and non-discriminatory manner.

For more information about this case and the state of the law regarding this nuanced area of constitutional concern, please click here to read the article authored by Meyers Nave attorneys Deborah Fox and Meg Rosequist that was published in the August 2019 issue of North County Lawyer magazine.

Update on Workplace Rights of Transgender and Non-Binary Employees

Recent California laws and regulations provide protections for transgender and non-binary employees, ranging from expanding the Fair Employment and Housing Act to prohibit discrimination on the basis of gender, gender identity, and gender expression, to specific regulatory codes that address restroom access, the option for a non-binary gender marker on state identification documents, and preferred names and pronouns. Meyers Nave Principal Camille Hamilton Pating, Chair of the Workplace Investigations Practice, published an article in the Daily Journal’s “2019 Top Labor and Employment Lawyers” special report to help employers understand their obligations and incorporate best practices.

As Camille explains in her article, California employers must review gender reporting programs for compliance under new rules, update harassment prevention training to include gender identity and expression, modify human resources policies and programs to be applicable and accessible to transgender and non-binary employees, and allow employees to use restroom facilities that correspond to their gender identity or expression. However, instead of focusing solely on technical check-the-box compliance with legal standards, employers would be well served to also focus on creating overall inclusive workplace cultures and environments that address the unique challenges and concerns experienced by transgender and non-binary employees.

Please click here to read her article.

New California Law Bans Workplace Discrimination Based on Natural Hair and Hairstyles

California is the first state to protect employees and students from discrimination based on natural hair and hairstyles associated with race. California Senate Bill 188, known as the CROWN Act, seeks to “Create a Respectful and Open Workplace for Natural hair.” The bill unanimously passed the California State Senate on April 22 and the State Assembly on June 27. Governor Gavin Newsom sign the bill into law on July 3.

The California Fair Employment and Housing Act (FEHA) makes it unlawful for employers to engage in discriminatory practices based on certain protected characteristics, including race. The CROWN Act adds that the definition of “race” for the purposes of FEHA now includes “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.” The Act defines “protective hairstyles” to include, but is not limited to, hairstyles frequently worn by African Americans, such as “braids, locks, and twists.” The Act applies to public schools, private employers with five or more employees and public employers.

Overview of SB 188
To help employers implement the law, Meyers Nave Principal Camille Hamilton Pating published an article in the California Newsletter of the Society of Human Resource Management that addresses (1) grooming and appearance policies, (2) state vs. federal law, (3) disparate impact of hairstyle regulation and (4) best practices for employers. Please click here to read the article.

What it means for employers
Camille advises that employers should consider the following when creating a grooming and appearance policy:

  • The policy should be driven by legitimate, objective business needs, not subjective personal preferences.
  • The policy should state the reason for grooming or appearance standards, such as to protect the health and safety of employees.
  • The policy should be equally and fairly implemented and should not disproportionately impact employees in a legally protected category.
  • The policy must accommodate employees’ religious beliefs, where appropriate.
  • The policy should apply to the workplace only and should not attempt to regulate employees’ off-duty appearance.

5G Wireless: How It Changes Local Regulatory Environments

Dominating the next generation of wireless technology, known as 5G, is a high-stakes competition taking place on a global scale. The FCC recently adopted a “Declaratory Ruling and Third Report and Order” that brings the impact of this global race to every local community. The Ruling is designed to facilitate rapid and expansive 5G rollout by limiting local government regulation of the installation and deployment of small cell wireless infrastructure in local communities. The Ruling lowers the costs for applicants, shortens the timeline for government approvals, and broadens the scope of potentially prohibited regulatory fees, charges and non-fees, such as aesthetic, undergrounding and minimum spacing requirements.

5G requires a vast network of thousands of small cells that utilize lower-powered, miniature antennas and signal receivers. Due to the short-distanced nature of their signals, small cells need to be deployed in close proximity to each other. And therein lies the problem: telecommunication providers often desire to attach equipment to existing infrastructure that is in the public right-of-way, such as street light poles and utility poles, or newly constructed stand-alone poles. However, the public right-of-way has traditionally been strongly regulated by local governments in order to ensure public access, enjoyment and use of the right-of-way.

Meyers Nave attorney Claire Lai published an article in the June 2019 issue of North County Lawyer that helps local governments understand the FCC’s new parameters when drafting, updating and enforcing their ordinances. Claire’s article includes an important table that outlines the Ruling’s new requirements and restrictions.

Please click here to read the article.