Craig Carnes, a Wilke Fleury associate, is set to begin an internship with the California Department of Parks and Recreation (“California State Parks”) in order to gain exposure to various areas of environmental and public agency law. California State Parks manages more than 270 park units and contains the largest and most diverse natural and cultural heritage holdings of any state agency in the nation. To learn more about California State Parks please visit http://www.parks.ca.gov/.

Wilke Fleury was pleased to bid its summer clerks-Sarah Scott, Stacy Hunter, and Angie Palmerin-farewell with two fun-filled events. On July 23, partner David Frenznick hosted a boat outing in the Delta near Walnut Grove. Attorneys and clerks wiled away the hours on a houseboat and floating dock before tubing at 40 miles per hour behind a speedboat. Miraculously, only one person was thrown from the tube-a true testament to the aquatic prowess of those involved! On July 31, Dick Hoffelt hosted Wilke Fleury’s annual summer clerk reception at his home overlooking the American River. This annual event takes place during the last Friday in July, and has been a summer fixture for over 25 years. The weather always seems to cooperate for this event, and this year was no exception. Everyone was treated to a relaxing evening . . . a great end to the legal summer season. We appreciate the efforts of Sarah, Stacy, and Angie, and wish them all the best in the coming school year!

Wilke Fleury is pleased to announce that four of its attorneys—Phil Birney, Tom Redmon, Dan Baxter, and Megan Lewis—have received accolades in the recently issued 2009 Northern California Super Lawyers Magazine. Mr. Birney and Mr. Redmon were named as “Super Lawyers” for the fifth and fourth times, respectively, while Mr. Baxter and Ms. Lewis were named as “Rising Stars.” The list of honorees is compiled by Law and Politics through a multiphase process that combines peer nominations and evaluations with third party research. Just five percent of the total lawyers in California are selected for the “Super Lawyer” designation, and no more than 2.5 percent are named as “Rising Stars.”

The achievements of these four outstanding lawyers are emblematic of the quality of services Wilke Fleury provides to all its clients. We look forward to proving it to you.

Wilke Fleury is happy to welcome its 2009 summer law clerks, Sarah Scott, Stacy Hunter, and Angie Palmerin.  Ms. Scott and Ms. Hunter recently completed their second year of study at UC Davis School of Law, while Ms. Palmerin just finished her first year at University of the Pacific, McGeorge School of Law, and is a participant in the Sacramento County Bar Association Diversity Fellowship Program, of which Wilke Fleury was a founding member.  All three women will spend the summer assisting Wilke Fleury attorneys with research, writing, and court filings.

Wilke Fleury is proud to be a part of these dynamic individuals’ professional development, and looks forward to working with them in the coming weeks.

Craig Carnes, a Wilke Fleury associate, was recently elected to serve on the board of directors for TEAM (Teaching Everyone Animals Matter).  TEAM is a Sacramento based non-profit corporation formed to help Sacramento Animal Care and Regulation reduce the number of healthy, adoptable, and unredeemed animals who arrive at the Sacramento County animal shelter each year. TEAM works to accomplish its mission by sponsoring community-wide adoption events, spay and neuter education events, a special medical needs program for shelter animals, and public awareness events focusing on responsible animal ownership.  To learn more about TEAM please visit http://www.sacanimalshelter.org/.

The client, faced with an impending mediation session, requires a careful explanation of the process, particularly the role she or he is to have as well as those of the mediator and counsel.

Mediation is a dispute resolution process that may be carried out in a number of different models or configurations, among which, and perhaps the most used, are the facilitative style and the evaluative style or a combination of both. In the facilitative style the mediator assists the participants to reach their own mutual decision to settle their dispute. The style of the evaluative mediator is to provide an opinion of settlement value or other disposition of the dispute- a style that is tantamount to that employed by a pro tem settlement conference judge in the California court system. In addition, “distributive, integrative, therapeutic, narrative and transformative” styles are among some of the others in vogue but are beyond the parameters of this overview that focuses on the facilitative mediation process, one of those in which clients are most likely to participate. Participation in the facilitative process is consensual, the disputants having agreed to participate and make a good faith effort to resolve their differences.

The mediator’s role is to facilitate a settlement agreement between the parties by assisting each party to understand the positions of their opponent, to analyze their own positions and to modify those that are unrealistic. The mediator’s goal is to bring the negotiations of the parties to a point at which settlement is achieved. The mediator, however is not a substitute for a judge and has no decision making authority; is not a negotiator, the role of whom is to negotiate the best result possible for her or his client; and does not act as an attorney or give legal advice as, for example, does not suggest to the parties what a judge might hold with respect to issues but can quite properly, in an effort to get the parties to change a position, ask of them or their counsel that which she or he believes a judge might hold.

Counsel for each party should present the client’s case in a straightforward manner and not in a confrontational manner as may be employed in court. The effort should be to present information helpful to persuade the opponent that settlement is a better option than going to trial. Some attorneys use “trial advocacy” in mediation but by and large this is counter-productive.

Submission of written briefs to the mediator before the commencement of the proceeding is helpful to assist the mediator and educate the other party. Counsel often prefer to submit confidential briefs. This is entirely appropriate if counsel so choose. The critical point is that the dispute cannot be resolved unless each party has a full understanding of the arguments and interests of the other and the opportunity to evaluate their merits.

Counsel should carefully prepare the client for the mediation so that she or he will have an appreciation of the costs and risks in litigating the dispute, be patient with the process, have possible concessions in mind and be able to maintain an open mind, taking into account the interests of the other side and focusing on settlement in an objective manner. Counsel must assure the presence of someone with full settlement authority at the mediation session. Mediations “aft go awry” in the absence of someone with such authority.

While currently there is some opposition to an opening session in which all parties and counsel participate, most agree that the opening session serves a very important, effective and helpful part of the mediation process. Here the mediator, counsel and parties have the opportunity to introduce themselves, and the mediator can outline the ground rules for the proceeding and assure the parties and counsel of her or his neutrality. Most importantly each side has the opportunity to address the other party in a non-argumentative manner to explain critical positions and interests important to that party. In this way, the session then can focus on finding solutions in an objective manner and, with help of the mediator, formulate solutions that will accommodate the interests and satisfy the needs of all parties so as to bring the negotiations to the point at which closure and a settlement agreement are achieved. Some mediators prefer to permit the parties to address each other in the opening session; however, the risk in doing so is that if the parties become highly emotional and confrontational in doing so, the entire process may be endangered. The mediator can minimize this risk by asking questions of parties in opening session and encouraging counsel to do so as well. When the mediator is certain that the facts, issues and interests have been as fully discussed as need be, he adjourns the open meeting and separates each side into private caucus rooms where she or he may confer privately with each side.

In private caucus the mediator again will assure each side that the confidentiality of information disclosed to her or him will be maintained and not disclosed to the other side unless given express permission to do so. Maintaining confidentiality is critical to the process, because it provides a setting in which the party can be open with the mediator. Key to the success of a mediation is that all sides understand the interests and positions of the others so that the door is open for all sides to devise meaningful ways in which to satisfy the needs of the others and, thus, forge solutions and achieve closure and a settlement acceptable to all sides. Often there are emotions involved giving rise to concerns that may stand in the way of settling the dispute. The mediator must see that the parties recognize and dispel these emotions so that they can consider resolution of the controversy logically and in a manner that is conducive to settlement. When the parties accept the mediator’s assurances of neutrality, the mediator is better able to obtain information regarding the parties’ interests in order to define their weaknesses, help the parties understand where the other sides are coming from and formulate settlement strategy. At this point in the process, the mediator employs “shuttle diplomacy,” moving back and forth between the caucuses, imparting and gaining information until the point at which offers and counteroffers of settlement are formulated, delivered back and forth and an acceptable offer is achieved.

When the private caucuses have concluded and terms of settlement achieved, the parties and counsel most often reconvene with the mediator to confirm their settlement agreement in open session, unless there is lingering animosity that could threaten the settlement in which case the mediator convenes separately with each side to do so. At this point in the process, in order to avoid next morning “buyer’s remorse,” it is imperative that the agreement be reduced to writing by counsel and signed by the parties before adjournment of the session, If an action involving the matter in dispute is pending in the California court system at the time of the execution of the agreement, it is prudent and advisable that counsel insert an express provision in the agreement providing that enforcement of the agreement may be sought by either party by motion to the court pursuant to California Code of Civil Procedure section 664.6 and also providing an express request that the court retain jurisdiction over the parties to enforce the settlement until performance in full of its terms. If such an action is not pending, then it is prudent and advisable in any dispute over which the California Court system has jurisdiction over the parties and the subject matter of the dispute or over which counsel for the parties determine that it is prudent and advisable that the California court system have jurisdiction over the parties and the subject matter of the dispute, that counsel expressly include a provision in the agreement that should any party to it refuse to perform, any other party to it may file an action in the California Superior Court (specifying the County), seeking performance of its terms, serve such action on the non-performing party and file and serve a motion to enforce it pursuant to the aforesaid California Code of Civil Procedure Section 664.6. Whether or not an action is pending in California and the California court system has, or the parties and counsel desire that it have jurisdiction over the parties and the subject matter of the dispute, it is prudent and advisable also to insert language in the agreement conforming to any one or more of the conditions enumerated in California Evidence Code Section 1123, subdivisions (a), (b) or (c) so as to assure its admissibility in any proceeding relating to the mediation and settlement.

Kevin C. Khasigian has joined the firm as an Associate. Mr. Khasigian will focus on administrative law, civil litigation, bankruptcy and estate planning for the firm.

In 2003, Kevin obtained his Bachelor of Arts degree from Brown University and then went on to complete his Juris Doctorate at the University of the Pacific, McGeorge School of Law in 2007 with great distinction. Mr. Khasigian has studied under U.S. Supreme Court Justice Anthony Kennedy in Salzburg, Austria. In addition, he has put forth great effort to aid the victims of the tragic events that followed Hurricane Katrina as a participant in “Project Katrina”, a program for law students who traveled to New Orleans to assist the Public Defender’s office.

Mr. Khasigian is a native of Elk Grove, CA, and a graduate of Jesuit High School in Carmichael. Wilke Fleury also welcomes Latika Sharma and Steven J. Williamson to the firm. Ms. Sharma, who was born in the Fiji Islands and raised in Stockton, CA, attended the University of California, Berkeley where she received a B.A. in Political Science. She received her Juris Doctorate in 2007 from the University of California, Davis School of Law and joined the firm in May of 2008.

Ms. Sharma’s practice focuses on health care and insurance regulatory matters, medical negligence, hospital liability and employment and labor litigation.

Mr. Williamson received his B.A. in Behavioral Science and Law from the University of Wisconsin-Madison, where he was also born. He received his Juris Doctorate from the University of the Pacific, McGeorge School of Law in 2005. Before joining the firm in 2008, he practiced general civil law in Stockton, CA.

Mr. Williamson’s current practice focuses on medical malpractice defense, hospital liability defense, and the defense of skilled nursing facilities.

Wilke Fleury has welcomed veteran litigator Donald A. Lounsbury to the firm where he will serve as Senior Trial Counsel. Mr. Lounsbury brings more than 30 years of legal experience to the law firm and will specialize in complex litigation defense of individual professionals, healthcare institutions and corporations.

Mr. Lounsbury received his undergraduate degree from California State University, Long Beach, where he was a member of the Blue Key National Honor Society. He then went on to obtain his Juris Doctorate from Western State University College of Law. Mr. Lounsbury has completed more than 200 civil and criminal jury trials, court trials, arbitrations and mediations. In addition, he was awarded the highest possible rating by Martindale-Hubbell based on extensive and confidential attorney peer review. Mr. Lounsbury joins the firm from Orange County’s Herzfeld & Rubin, LLP, where he served as Senior Trial Counsel and Managing Attorney.

A Sacramento jury deliberated less than three hours before returning a near-unanimous verdict in favor of Lodi Memorial Hospital in a medical negligence action. The two week trial in Sacramento County Superior Court pitted Joan Perry, the widow of Stanley Perry, against the hospital and its staff after her husband died suddenly of a ruptured aortic aneurysm during a routine treadmill test one day following admission for sudden onset of chest pain. Mrs. Perry claimed that the hospital and others mismanaged her husband’s care.

Retained by Optima Insurance, the insurance carrier for the hospital, Wilke Fleury partner, David A. Frenznick, successfully argued that the hospital had met and exceeded the standard of nursing care in all aspects of Mr. Perry’s care. Mr. Perry presented with classic signs of coronary artery disease and, prior to the treadmill test, his cardiologist was timely informed by the nursing staff of all pertinent changes in the patient’s condition.

Lodi Memorial Risk Manager, Daleen Murray, praised Wilke, Fleury attorneys after receiving the jury’s verdict. “Your devoted time, expertise and professionalism lead us to the desired outcome of a defense verdict,” she said. “We will most definitely call upon Wilke, Fleury and Mr. Frenznick for our future legal needs.”

After a nine week trial in the Federal District Court in Sacramento, a jury unanimously awarded our client, Pacific MDF Products, Inc., $6,670,185. Pacific MDF manufactures home improvement products, such as baseboards and crown moulding, out of fiberboard at its plant in Rocklin, California. The manufacturing process generates a significant amount of sawdust, which must be disposed of in environmentally sensitive ways. Pacific MDF decided to purchase from Defendants, Advanced Recycling, Inc., Bio-Mass Energy Concepts, LLC and Donald Kunkel, a system which would permit Pacific MDF to burn the sawdust to create both steam heat and electricity to run its plant.

When Defendants were unable to overcome both design and manufacturing defects in the cogeneration system, Thomas G. Redmon and Daniel L. Baxter of our office filed the lawsuit alleging 11 different causes of action, including breach of contract, breach of warranty, fraudulent and negligent misrepresentation, and making false promises. The jury deliberated for less than two days before finding in favor of our client on every cause of action.

Pacific MDF expressed praise for the quality of the representation it received based, not just on the end result, but on the fact that Mr. Redmon and Mr. Baxter exhausted every effort on its behalf to settle the matter in a cost effective manner prior to taking the matter to trial.

The International Journal of Occupational & Environmental Health recently published a letter to the editor authored by David A. Frenznick, who heads the firm’s construction law group.  The letter, entitled Courtroom Impact of the ACOEM Statement on Mold, comments on a long-standing medical-legal debate.

Mr. Frenznick represents owners, developers and contractors in residential and commercial construction disputes.

The firm is pleased to announce that Megan Lewis and Trevor Stapleton, both formerly associates, have been made partners in the firm.

Ms. Lewis joined Wilke Fleury in 2002 after graduating from the University of the Pacific, McGeorge School of Law. Her practice areas include representing businesses in all aspects of bankruptcy proceedings and assisting businesses with corporate formation and litigation. She currently serves as Treasurer for Women Lawyers of Sacramento; Vice Chair of the Bankruptcy and Commercial Law Section of the Sacramento County Bar Association; Board Member of California Women Lawyers; and is a member of the Junior League of Sacramento. "

Mr. Stapleton, who joined the firm in 2005, is a transactional attorney advising businesses, professionals and entrepreneurs in all aspects of strategic planning including taxation, formation, sales and mergers, business transactions, asset protection and general business law. His practice also includes estate planning, probate and trust law, tax controversies and audits, as well as advising non-profit organizations. He received his Juris Doctorate and certificate in Dispute Resolution from Willamette University College of Law and his LL.M.in Taxation from the University of Washington School of Law. He is admitted to practice in both Washington and California. He also serves on the Board of Directors and is the Treasurer of the Down Syndrome Information Alliance, a Sacramento non-profit organization providing resources and support for individuals with Down syndrome and their families.

Wilke Fleury Managing Partner, Michael Polis, said, "Megan and Trevor have been recognized for their outstanding service to our clients and to the community. We are delighted to welcome them as new partners and look forward to their long and successful affiliation with our firm."

Michael Polis has been named the firm’s managing partner. Mr. Polis, who has been with the firm since 1994, takes over the position from Jim Krtil. Mr. Polis received his law degree from the University of the Pacific, McGeorge School of Law and his undergraduate degree in economics from the University of California, Los Angeles.

Mr. Polis’ practice focuses on advising Knox-Keene health care service plans and health insurers with compliance-related issues. In addition, he advises insurance agencies and administrators with respect to compliance-related matters. He also advises dentists, physicians, chiropractors and optometrists with respect to corporate formation and tax-related matters. Mr. Polis has written numerous articles on health care, insurance and managed care compliance issues. He has also presented at the California Association of Dental Plans on Knox-Keene compliance-related issues.

Mr. Polis is a member and former chairman of the Health Care Law Section of the Sacramento County Bar Association. He is licensed in California as a Certified Public Accountant and is a member of the California Society of Certified Public Accountants. He is the Chairman of the Board of Fresh Producers, Inc. and former chair of Goodwill Industries of Sacramento Valley, Inc. In addition, he teaches cost accounting, business and corporate law at the University of California, Davis Extension Program.

Former legislator, Rick Keene, has joined the firm as Of Counsel. Keene served in the Assembly for three terms where he rose to assume several Republican leadership positions, including Republican Whip and Vice Chair of the Committee on Water, Parks and Wildlife. He also served as the lead Republican on the Assembly Budget Committee. Prior to being elected to the Assembly, Keene served as a councilman and mayor to the City of Chico, CA.

Keene, who obtained his B.A. from CSU Chico, received his Juris Doctorate degree from Cal Northern School of Law and practiced law in his Chico law firm for 15 years before his election to the Assembly. "Our firm is excited to continue to add colleagues with tremendous and varied backgrounds, such as Rick Keene,” said Michael G. Polis, Managing Partner. “Our clients and future clients will benefit from his local and state government experience, legal knowledge and counsel. "

Third year of law school is typically reserved for long weekends, fretting over the bar exam, finding a job, and rounding out a legal education that, for the first two years, is primarily confined to the classroom.  Like many of my peers, I longed for a practical supplement to my legal education. Specifically, I wanted to get involved and make an impact in a legal forum where I would experience something new, different, and unexpected.  The Katrina-Gideon Project, an immersion program guided by the Sacramento Public Defender’s Office and Pacific-McGeorge School of Law, would present this and much more to fifty law students who traveled to New Orleans, Louisiana in December 2006 to offer assistance to the New Orleans Public Defender’s Office in the aftermath of Hurricane Katrina.

Up until the fall of 2005, New Orleans was primarily known for the Bourbon street experience, a haven for conventions, and a place to indulge in southern delicacies, namely beignets, po’ boys, muffaletta sandwiches, and, of course, Pat O’Brien’s world famous hurricanes.  While New Orleans still conjures up images of joyful French Quarter revelers, Hurricane Katrina and its disastrous effects presented the world with a new image of New Orleans—lack of preparedness and a legal, political, and social infrastructure in disarray.  Like other governmental entities, the New Orleans Public Defender’s office was struggling—case demand was growing due to rising crime and arrest rates, attorneys were moving to other states, and defendants were facing extended waiting times, sometimes without knowing what charges faced them.  As a result, the Public Defender’s office needed assistance with interviewing defendants, working up case files, identifying preliminary legal challenges and drafting pre-trial motions.  The Katrina-Gideon Project would help to alleviate some of these problems, while at the same time offering students like me an opportunity to engage their legal knowledge, help a suffering city, and face several moral and legal issues at a very young point in their legal careers.

The Arrival – Expect the Unexpected
I arrived in New Orleans without having any practical criminal experience.  Sure, I had taken criminal law and criminal procedure, but the Katrina-Gideon Project was my first foray into interviewing, counseling, and applying the criminal foundations I had learned during law school.  Upon landing in New Orleans, my mind raced, thinking about casebook lore… Who was I going to defend?  Did the evidence still exist against my client?  Did the officers give proper Miranda rights?  Was my client innocent?  Man… I was preparing to be (gasp!) a lawyer.  Further, I had no idea what to expect.  There were rumors of lack of preparedness and conflicts between the New Orleans Sheriff and New Orleans Public Defender’s Office.  Put simply, I was scared, excited, frantic, and optimistic upon landing at Louis Armstrong International Airport.

Students involved with the Katrina-Gideon Project were placed into seven groups.  Some of the groups would be going to the local parish prisons to interview prisoners and work up case files, while others would go to the outlying prisons to interview defendants who had been relocated during Hurricane Katrina.  All would be expected to do their best and assist the public defender’s office in any capacity required.  I was fortunate to be placed in the group led by Paulino Duran, the head Sacramento Public Defender. Paulino led my group to Angola State Prison to interview inmates who had been transferred there from New Orleans during Hurricane Katrina.

While I was thankful to be in the group headed to Angola State Prison, I was not excited about waking up at 4:30 a.m. to catch the train to Angola. What I didn’t know, and what Paulino explained on the way to Angola, was that Angola was one of the last plantation-style prisons in the U.S. Specifically, some of the inmates work in the fields during the day and earn two cents an hour for their efforts.  Other inmates worked in the processing plant—Angola is a self-sufficient prison with a processing plant and cannery—while some were required to be in their prison wings for 23 hours a day.  Paulino also explained that Angola was the largest prison in the U.S. in terms of inmate and acreage.  Angola also provided the setting for many highly publicized inmate crimes, escape attempts, as well as being the location du jure for many Hollywood motion pictures, such as Dead Man Walking and Monster’s Ball.

As we approached Angola, the first thing we encountered was the security gate. It was a mammoth over-crossing, and the police detail was extensive. An employee of the prison was assigned to our group, and he led us to where our clients were being held.  We approached our building, a seemingly normal prison building with a security checkpoint, an appeals chamber, and visiting rooms. We entered the security checkpoint and the employee led us to the room where the Orleans Parish Prisoners were being held. Upon entering the room, we were astonished to see about 15 prisoners sitting in rows to our immediately left. Many were our clients—but, much to our surprise, many were not.

My first client was a 40 year-old man arrested for cocaine possession.  He was a gentle man with four children and a steady job. His case was baffling because he had been incarcerated for over two years for possession of .06 grams of cocaine.  In addition, his bail had been continuously increased, with nary a justification.  At the outset, I asked him the questions I had prepared the night before. I wanted to know everything about the alleged crime; where the police were, where he was standing, was it daytime, where any witnesses available?  I also wanted to know about his background—did he have any business references, ties to the community, any prior convictions, was he on parole or probation, did he know how to read, was he taking any medication, was he a U.S. citizen, etc.  My goal was to draft the best possible case memorandum so that the New Orleans P.D. would be prepared for the next court appearance.

My second client was not on my scheduled list, and I did not have a case file related to his alleged criminal charges. As such, I had not prepared any questions, and did not know anything about this individual. He posed a unique challenge because he was charged with homicide and, up until that point, I was under the impression that we would only be dealing with relatively minor felonies. I was a little startled when he told me what crime was charged with, but I just applied the same line of questioning as the first interview.  I asked him about the crime, but because I didn’t have the case file, the questioning had a different tone.  I wanted to know excruciating details.  We wanted to know all of the parties involved, the facts of the underlying charge, was there any seized evidence, had he made any statements, and other questions relating to the basic nature of the charge.

Following the preliminary questions relating to my second client’s alleged crimes, my partner and I took some time to speak with him about everything from the Saints to world politics. This was by far the most engaging and important part of the trip for me. This simple dialogue—void of scripted questions—was what made me to relate to who my client was, and why in fact I wanted to help him.  He was a person just like me.  He had political views just like me.  He was an avid football fan like me, and rooted on Sundays with same zealousness as I did.

Following our interviews, I wrote memoranda to the New Orleans Public Defender’s office summarizing my client interactions and identifying the constellation of legal issues presented in my meetings.  I also made several recommendations regarding case posture and preliminary motions that should be filed.  It took me many days to complete the case summaries and recommendations, but I believe I prepared the public defender while advocating for my clients.  I also learned valuable lessons relating to litigation and the collaborative process.  For instance, I worked with some amazing lawyers, and was able to produce a written document that helped my clients during the disposition of their cases.  In addition, while interviewing my clients and drafting my case memorandum I learned about the basics of litigation and how the “system” actually worked.  I like to say I went to “litigation bootcamp” as it was necessary to get up to speed regarding statutory filing and hearing requirements, supporting paperwork, and making sure my client’s rights were preserved (or if they were violated).  Although couched in criminal pre-trial litigation, the awareness and exposure to filing deadlines, required documentation, and general pre-trial positioning continues to lend itself to my civil practice on a daily basis.

I arrived in New Orleans with lots of book knowledge, but no practical criminal experience. I hoped for a challenging (morally, emotionally, intellectually), eye-opening, influential experience, and I think I received just what I expected—and maybe even more.  As a member of this unique project, I was able to view a ravaged area, participate in the interviews of two men accused of crimes, and have spirited conversations with my peers centering around capital punishment, the criminal justice system, and southern hospitality.  Although all of the aforementioned objectives and experiences were important to me as a member of Katrina-Gideon Project, I think the most important aspect is that I was given an opportunity to help rebuild a historic city and aid individuals at a time when all appeared lost.  For that, I think I am a better person, and lawyer.