Letters to the Editor

WORTH CELEBRATING
      Your 25th anniversary issue of California Lawyer was great. Having practiced law in California beginning in 1971, I was delighted by so many of the incidents and issues you touched on. I am glad you overcame your initial reluctance to celebrate your 25 years of history.
      Karen Kaplowitz
      Princeton, New Jersey
     
      BETWEEN YOU AND ME
      In "A Long, Strange Trip" [September] Jonathan L. Kirsch states that he graduated from law school in 1976 and was admitted to the bar as number 71,502. He also stated that he was sworn in at the Dorothy Chandler Pavilion by Chief Justice Rose Elizabeth Bird. I too graduated from law school in 1976, was sworn in at the Dorothy Chandler Pavilion, and have bar number 71,602. However, I would like to point out that Rose Bird was not appointed as chief justice until February 12, 1977, and did not take office until May 1977. She had no previous judicial experience. If she is the one who swore us in, we've got a problem. I'd appreciate it if you didn't mention this to anyone else, Jonathan.
      Tim Lashlee
      Long Beach
     
      Jonathan Kirsch responds:
      One of the afflictions that goes along with a low bar number is a memory that is thoroughly capable of playing tricks. I could have sworn that it was Rose Bird who administered the oath that day in the Chandler Pavilion. Is it possible that the swearing-in ceremony did not take place until after Bird was appointed in February 1977? And if it was not Rose Bird, then who swore us in?
     
      LOOKING BACKWARD
      This was the first technology article by Sandra Rosenzweig that I actually understood ["From 9 to 5 to 24/7," September]. It was a walk down memory lane.
      It was a saner world when we smoked at our desks, before technology infected the practice of law. Technology has turned law into a business. Firms throw their new hires to the wolves with little or no mentoring and demand an inordinate number of billable hours from their young associates. They don't care if they burn them out.
      Technology has made the practice of law meaner, coarser, and more aggressive. Because it is so simple and inexpensive to crank out voluminous discovery requests, counsel paper each other to death with useless interrogatories and production requests just so they can play gotcha with motions, needlessly increasing the costs of litigation. I am of the old school, when the motto was: Don't file a motion if a letter will do, don't write a letter if a phone call will do, don't make a phone call if ... Unfortunately, you can't practice law that way anymore.
      Just as civility in the general population is nonexistent, so civility in the practice of law is missing in action. Regrettably, it is too late to put the genie back into the bottle.
      Stephany Yablow
      Studio City
     
      I enjoyed your 25th anniversary issue?it's always fun to take a trip down memory lane when an issue like this one has been done well. I particularly enjoyed Sandra Rosenzweig's article, but there is a big gap in her history of word processing and of the resulting revolution in the practice of law?and I'm old enough to remember. We didn't go from typewriters, bottles of Wite-Out, and carbon paper to personal computers. There was an interim period of some years where secretaries (not attorneys) used dedicated word processors. The large firms had special word processing departments with huge machines, purchased at great cost, and dedicated word processing operators. The first time I saw the size of those machines and what they could do I was in awe?because I remembered using carbon paper. I can remember doing some "big deals" downtown at one of our largest law firms, where we had to wait for document revisions that were "in word processing" and "in line"-sometimes we had to bump other lawyers' work that was in line ahead of ours to be able to complete a deal.
      The secretary for the lawyers we were working with was the person who usually interfaced with the word processors?they didn't like it when the lawyers themselves would give instructions directly to the word processors, who held a lower rank than the secretaries. Sometimes these word processing departments worked around the clock. Then along came the PC, and some attorneys decided to put a PC on their desk along with one on their secretary's desk. All of a sudden lawyers started turning out their own letters and documents. The way an attorney practiced law was forever changed.
      Paul R. Grant
      Santa Monica
     
      CALIFORNIA CONFIDENTIAL
      September's MCLE self-study installment by Cassandra Franklin, "Mediation's Confidentiality Controversy," included the statement, "The statutes also make confidential virtually everything communicated in connection with a mediation." Many similar phrases were dispersed throughout the article.
      While otherwise a fine and informative article, I think Franklin's work may mislead readers by its repeated use of the term "confidentiality." Franklin is far from alone in this respect. Many other authors, and even the descriptive headings of code sections and published court opinions, have uncritically used the same term in speaking of mediation. However, the sole thrust of the rule is to exclude such communications from being given as evidence in subsequent proceedings. (Cal. Evid. Code § 1119.)
      The Evidence Code excludes communication from evidence for a variety of reasons. The hearsay rule excludes evidence of certain statements principally because of concerns as to reliability. Certain privileges, including the attorney-client and physician-patient privileges, recognize that sensitive communications made within a legally protected confidential relationship should be shielded from disclosure in legal proceedings. Quite apart from the Evidence Code, the professionals who are parties to these relationships are bound by the ethics of their professions to keep such matters secret. In contrast, the mediation statutes are part of Division 9 of the Evidence Code, descriptively titled, "Evidence Affected or Excluded by Extrinsic Policies." The extrinsic policy in this case is to encourage parties to engage in the free exchange of views, without fear that their statements will be used against them in a lawsuit. The policy is not one of honoring any confidential relationship. Quite the opposite?the parties to a mediation are adversaries.
      This raises the question: If a mediation communication is to be deemed confidential, then from just whom is it to be kept confidential? Any statement made during the mediation will already be in the hands of one not in a position of confidence?the speaker's adversary, the one person most able to use it against the speaker! Is it proposed that a party or lawyer hearing such a statement cannot share it with other persons assisting in preparing the party's case against the speaker?
      Evidence Code section 1119(c) does contain the bare statement, "All communications ... in the course of mediation ... shall remain confidential." If intended to preclude disclosure outside legal proceedings and not for use as evidence, this is an admonition with no teeth. The law specifies no consequences for mere disclosure. This sentence is vague, unenforceable, and meaningless.
      Chris Valle-Riestra
      Oakland
     
      California Lawyer welcomes letters to the editor and publishes excerpts from as many as possible. Please include your phone number and city of residence. Write to us at 44 Montgomery St., Suite 250, San Francisco, CA 94104, fax 415/296-2482, or email letters_callaw@dailyjournal.com.
     

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