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By Samantha Berryessa
Attorney at Law 

Day of the Dead, and practicing law

 

Last updated 3/4/2019 at 3:17pm



“What area of law do you practice” many people ask me. “Wrongful Death and Trademark Law” I respond, knowing there will be inquires if a fellow attorney is asking. “Don’t you mean Personal Injury and Intellectual Property they ask”?  Trying to place me into a category, they understand. At that point I do agree that the death cases I prosecute civilly result from negligent injury. 

Then of course there comes the question of why I also do Trademark Law. I reply “because I enjoy it and it is fun.” My background as a fabric designer and in social anthropology makes the highly creative area of law a natural for me.

Trademark law isn’t just in our country. It is global. Business owner logos, slogans, music, domain names, sounds, etc., need to be trademarked if they qualify, and then need to be monitored for counterfeiting and loads of other dastardly things that might diminish the trademark in some way. 

Trial for these cases is most often in federal court and, if you have a solidly filed and researched trademark, you are in a good position to recoup damages such as lost profits, attorney fees and enjoin the offending party from using and diluting your product or services. Federal court does not allow punitive damages however, so sometimes cases are filed in state court if the offender is particularly nasty.

Wrongful Death cases became my forte for many reasons. The first reason was that when I began working as a law clerk, I worked with many San Bernardino, Riverside and San Diego Tribes, many of whom who were very poor. Poor people have a higher chance of dying for many reasons. When I began practice, I had Tribal, then Filipino, Mexican, Samoan American, clients first. This is because I enjoy the cultures, joy, family attachments and support these families have for each other. 

I will explain how some of these attachments have touched me by telling you about a train ride from Guadalajara to Oaxaca, Mexico. The depths of love families showed each other as they boarded the train across the country during this travel deeply touched me.  

At 20 years of age, I was studying the Tribal peoples south of the border and writing a book. One day, a train ticket I purchased was a ‘first class primero’ seat, which I mistakenly thought came with a compartment with a bed. Instead I was about to enter the world of travel for ‘The Day Of The Dead’, sitting in the aisle and sometimes part of a seat of an over crowded bus that took 16 hours to reach its destination.

Barefoot Indigenous people in all sorts of attire were entering the train every few miles. With them, they carried nursing babies on their fronts and older babies on their backs covered in handwoven colorful rebozos, which are village specific designed clothes used for warmth, much like we would use a sweater. They use the shawl like materials to carry everything, from babies to firewood.

At every stop a bus employee, usually a boy under 16, would help haul and secure crates of clucking chickens, squealing pigs, and goats, to the top of the train. Fruit, breads and octavo bottles of mountain-made alcohol stayed with their families in the train of laughing, smiling people, where no baby cried because they were always with their mother, brothers and sisters, and loved beyond measure. 

This journey ended in a mountain town called Oaxaca. The town center is European in style, where there is a nearby huge, festive, outdoor market. In the town, small restaurants serve hot soups and handmade tortillas or breads of all sorts. The market is filled with large bundles of white lilies and roses. It carries what I at the time considered to be gruesome breads formed and colored like tormented skeletons and body parts. There is candy shaped like skulls, eyeballs, even body part jewelry! The aromas of tamales, fresh bread, local cheeses, coconut, vanilla, and hot milky chocolate fill the air. 

Crowds of families from the toothless smiling elderly to the newborns join to celebrate the generations of their ancestors by purchasing favored drinks and food. Later, as the sun begins to set and the air cools, these gifts are taken by foot while children munch their favorite seasonal candies, to the resting places of the family ancestors.

Flowers arranged around the graves are accompanied by old photographs in hammered tin frames, glasses are produced to pour the favorite beverage of each deceased and a full meal provided to the deceased on a plate at the gravesite. Meanwhile, people are eating their own meals, sharing, drinking and sleeping near their ancestors as they truly remember and honor each one, and each other with time, stories, company and food. Lighted candles are everywhere and the smell of firewood cooking food fills the air along with the musical sounds of flutes. 

This experience was in high contrast to the way I have seen death dealt with in the United States or Halloween as well. Once my mother made a reindeer costume for me to trick-or-treat in and the bounty of safe candy knew no end! The spirit of the love of neighbors and children lives in Halloween here too, albeit in a different way and for me with a missing depth of the honoring of the generational family. 

The love, acceptance, closeness and understanding between families in Mexico is something I have never forgotten. Since that time I have seen it in many cultures and enjoy working with families when they have lost a loved one because of the carelessness of another.  

This is why I am good at what I do. The love and missing person are always honored and that family is respected by the lawsuit, I file on their behalf. 

As lawyers we wear many hats and rely on a wide variety of experts to help us understand how a death was caused. We need to discover how and what the injured person suffered, as well as the many ways it affects the family left behind. Some of these experts are law enforcement, private Investigators, doctors, and coroners. The cases include exhumation of bodies, witness interviews and film reenactments. 

We file a complaint using law, research and facts against the offender. The offender turns the complaint over to their insurance company. Almost always the defendant/offender is sorry for what they did, but their insurance company does not want to pay out money from the policy the offender paid for. Thus litigation begins and resolution for both parties is protracted. 

We file the lawsuit in hopes of supporting our client. To protect children and parents left behind, send children to college and feed families who relied on services or money that the deceased provided. 

This explains some of the ways as lawyers we help and serve others. Be safe out there on Halloween, and have fun too!

You can reach me at Samantha@Berryessalaw.com or fill out a no cost form on my website, https://berryessalaw.com/, if you have a case you would like to visit about. This allows me to review your inquiry and checks conflicts before we talk.

 

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