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Financial Elder Abuse is a powerful and overlooked legal theory

Business litigation involves claims for breach of contract, fraud, misappropriation and the like. But, if the plaintiff was 65 or more years old at the time of the offense, an additional claim for financial elder abuse must be considered. Why?

Because proving elder abuse opens up additional remedies not necessarily available for these other claims. For example, unless you’re suing over a contract that contains an attorneys’ fees clause, the plaintiff cannot recover her attorneys’ fees in business litigation. However, the elder abuse statutes change all of that. Welfare & Institutions Code § 15657.5 provides that, upon proof by a preponderance of the evidence “that a defendant is liable for financial abuse” under Welf. & Inst. Code § 15610.30, “in addition to [compensatory damages] all other remedies otherwise provided by law,” the court shall award attorney fees and costs, including the cost of the services of a conservator devoted to the litigation of a claim for financial abuse. Wood v. Jamison (2008) 167 Cal.App.4th 156, 164-165. Moreover, attorneys’ fees are unilateral to the plaintiff only. Bell v. Mason (2011) 194 Cal.App.4th 1102.

In other words, not only does an elder abuse claim open up the possibility of recovering attorneys’ fees for the plaintiff, because this remedy is unilateral, even if the plaintiff loses her case, she will not be liable to the defendant for his attorneys’ fees. This is a very powerful claim.

In addition, upon proof by a preponderance of the evidence that a defendant is liable for financial abuse, and upon clear and convincing evidence that a defendant has acted with recklessness, malice, fraud or oppression, general damages for pain and suffering may be imposed after the death of the victim. Absent an elder abuse claim, these damages would not be available in business litigation.

To the layman, these benefits of including a financial elder abuse claim in your lawsuit may not seem significant. But, this additional claim will change the entire nature of your lawsuit – and give you a powerful tool to achieve justice.

KidsFirst – Helping Children and Families

I’m a member of the Board of Directors of Kids First, and I’d like to share some of the amazing things this organization does to help children and their families.

KidsFirst was established in 1989 as a private, non-profit organization to end child abuse and neglect – so that every child can live in a safe, healthy and nurturing environment.

Every day, we provide guidance, education and tools that help parents cope with life’s stressors.  Helping parents helps their kids.  For example, we offer co-parenting classes to teach divorced or separated moms and dads to engage in neutral communications in front of their children.  They learn to increase positive communication, manage anger, decrease negative effects on children and enhance the child’s confidence and self-esteem.

KidsFirst also has counseling and family resource centers in Auburn, Roseville and partners with schools and faith-based organizations.  We connect parents of all cultures and means to the proper resources and services to help them to be better parents.

Of course, KidsFirst was organized as the Child Abuse Prevention Council for Western and Southern Placer County.  Our primary focus is to provide prevention and early intervention services to high-risk families so that child abuse and neglect can be deterred and to help those who have already suffered abuse or neglect.  KidsFirst works closely with government and a county-wide collaborative of allied agencies to take every step possible to keep parents and kids together, including working directly with parents to help avoid abusive relationships.

Last year, KidsFirst served nearly 3,800 children and 2800 families through our direct programs and services, as well as reaching out to nearly 7,500 individuals in outreach events.  All services are free and confidential and available in English and Spanish.

How to Pick a Business Litigation Lawyer

As a business litigation attorney, I handle a wide array of cases, such as breach of contract, business fraud, breach of fiduciary duty, partnership disputes, corporate dissolutions, etc.  Over the course of 28 years, I’ve noticed some things that I believe are essential in the choice and decision to hire a business litigation lawyer.

First, you need a smart and wise lawyer.  Wisdom comes with time and experience.  While I thought I knew it all when I was younger, I didn’t.  Many years of experience in my profession developed the wisdom necessary to litigate more efficiently.

Second, most business lawyers do not have any business education or experience.  The typical lawyer studied political science or history in college, went to law school, and then found herself practicing business litigation.  Many of those attorneys are excellent.  However, I believe those lawyers who have accounting or economics degrees are better choices because they are equipped to handle many aspects of business litigation cases.  For example, damages in business cases usually involve dealing with accounting records and lost revenue or profits calculations.  Lawyers with college degrees in those areas or, better yet, experience practicing accounting or economics, are far more comfortable dealing with these issues – including cross-examining accounting and economics expert witnesses.

I have an accounting degree and worked as an auditor for one of the world’s largest public accounting firms before attending law school.  I can tell you that my education and accounting experience help me every day in one aspect of a case or another. Choose your attorney with great care. The choice you make wlll have a significant impact on your results.

Why I Love Practicing Law

I’ve Been a Lawyer for33 Years.  I vividly remember the early years working at a large San Francisco law firm with many amazingly bright attorneys. Back then, I enjoyed the constant challenges, the new things I learned seemingly daily, and the high energy of the legal world. In my early years, I was reticent to trust my intuition on judgment calls, such as which evidence would be most persuasive to the judge or jury or what would be the best strategy for litigating the case or prosecuting the trial. I always looked to the more senior attorneys to make those calls.

Young lawyers in large law firms almost never get to try the cases; the partners and senior lawyers do. But, I was lucky enough to be given much responsibility early in my career, and by my fifth year, I was trying cases. After practicing for about 10 or 11 years, I had tried 10 cases – and won every one of them.

With my successes came confidence in my judgment. I started to realize that my decisions were excellent regarding what was the most convincing evidence, how to best impeach the bad guys, in what order to call witnesses, how to proceed with jury selection and all other aspects of trial. Over the years, I continued winning almost all of my trials . . . I’ve now won 45 of 48 cases, 94%.

Why Do I Love Practicing Law?  First and foremost, I like helping people solve their problems. I can’t fix a broken faucet or install a water pump, but I can fight legal battles really well. And, I’ve noticed that, during the heat and stress of litigation, I develop close and meaningful relationships with my clients. I think they see how committed I am to protecting them and winning their legal battles, and they appreciate my devotion to them. We work very hard together, and we go to battle together in the courtroom. And, when we win, we both feel indescribable satisfaction. In fact, several of my very closest friends started out as clients.

Second, I’ve always lived for competition – whether it was sports, scholastics or a friendly game of chess. Trials are the ultimate competition: very smart adversaries, difficult legal battles with surprises coming every week, and very high stakes. The thrill of victory is spectacular.

Finally, I think we all enjoy things at which we excel – especially if it’s a specialized subject in which few people are able to achieve results. After 33 years, I know litigation and trial work is my calling, my special gift, and my best avenue for helping others.

How to Be a Good Trial Witness

The Most Important Asset a Witness Needs Is Credibility

If the jury or judge does not believe the witness’s testimony, or even a small portion of the testimony on an important issue in the case, the case will likely be lost.

Interestingly, I run into many witnesses who perceive themselves to be very likeable and believable – but who are actually slippery, shady or otherwise give off a suspicious air. Even honest and good people can appear untrustworthy. All of these people can be good or even great witnesses if they follow a few basic rules.

Tell the Truth

I know that sounds fundamental, but it’s harder than you may think. Too often, I have clients or witnesses who veer away from the truth on the witness stand, either intentionally or by accident. For example, sometimes the witness just doesn’t recall exactly what happened but, instead of admitting that, she makes up what she doesn’t remember. While that seems innocent enough, on cross-examination, a very good trial lawyer will tear apart pieces of the make-believe testimony – or maybe even a single seemingly important part of her story. This impeachment will cause the jury or judge to disbelieve the witness’s entire testimony.

Other times, I see witnesses who obviously believe they can lie better than anyone else. They appear to believe they are actors on par with Jack Nicholson or Meryl Streep. Maybe they are. But, opposing attorney’s are skilled at dissecting the liar’s testimony and highlighting the inconsistencies and outright lies. The “tangled web” saying came about for a reason. Very few people tend to think through their lies at enough levels to come up with good answers to probing cross-examination.

Prepare

Preparation for deposition and trial is the witness’s best tool. Witnesses most often get into trouble because they just don’t remember all of the facts in great detail. The best cure to this problem is to review very thoroughly – refreshing your memory – several times – all of the documents relevant to the case and to rehearse telling the story of what happened. The fresher the witness’s memory is about the events and transactions at issue, the better her testimony will be.

Testimony

During the witness testimony, it is critical to listen carefully to the questions, responding to opposing counsel with sufficient volume and clarity to ensure the court reporter can hear you well. Answer only the questions posted to you and do not volunteer information, unless directly pertinent. Your attorney will be with you, confirming when you should answer questions and applying the rules of evidence for your case.

Win the Case

Finally, hire the lawyer with the best record of success at trial. An excellent trial lawyer will coach you and test your recollection and prepare you to feel confident while testifying. Those lawyers win their cases for a reason. You might as well hire that expertise to help you win your case.