Abraham Lincoln – lawyer first A look at Lincoln, the trial lawyer, and the ethical principles that guided him in his law practice HON. MICHAEL L. STERN
Journal of Consumer Attorneys Associations for Southern California
FROM
THE
An ideal mentor for lawyers – six lessons from Benjamin Franklin HON. GREGORY ALARCON
Civility: Want to get a cup of coffee? HON. DANIEL BUCKLEY
Mosk Courthouse: A house for equal justice, from design to completion HON. ELIZABETH R. FEFFER
PI cases: Hubbing along at Mosk HON. SAMANTHA P. JESSNER
Overcoming emotional barriers to settlement HON. MICHAEL A. LATIN (RET.)
Surprise me! Time for a little derring-do by trial attorneys HON. ANTHONY J. MOHR
Improving your experience in a trial court without court reporters HON. MARY ANN MURPHY
Social media discovery during the social-media boom CHIEF MAGISTRATE JUDGE SUZANNE H. SEGAL
The Case Management Conference HON. ROLF M. TREU
And from the bar The art of no
Practical, ethical and moral difficulties in rejecting potential clients
Defense mental examinations and plaintiff’s psychiatric diagnosis
July 2014
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Volume 41, Number 7, JULY 2014 Editor-in-Chief Jeffrey Ehrlich Associate Editors Martin Aarons, Joan Kessler, James Kristy, Spencer Lucas, Beverly Pine, Norman Pine, Rahul Ravipudi, Ibiere Seck, Geraldine Weiss, Ronnivashti Whitehead Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Managing Editor Cindy Cantu cindy@caala.org Copy Editor Eileen Goss
Publisher Richard Neubauer rn@theadvocatemagazine.com Art Director David Knopf
Consumer Attorneys Association of Los Angeles President Treasurer Geoffrey Wells Mike Arias President-Elect Secretary Joseph Barrett Shawn McCann First Vice President Immediate Past President David Ring Lisa Maki Second Vice President Executive Director Ricardo Echeverria Stuart Zanville Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, David deRubertis, Danica Dougherty, Jeffrey Ehrlich, Tobin Ellis, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Jeff Greenman, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Tobin Lanzetta, Tim Loranger, Anthony Luti, Minh Nguyen, Christa Ramey, Rahul Ravipudi, Taylor Rayfield, David Rosen, Jeffrey Rudman, Ibiere Seck, Doug Silverstein, Kathryn Trepinski, Geraldine Weiss, Ronnivashti Whitehead, Andrew Wright Orange County Trial Lawyers Association Secretary President
Casey Johnson
B. James Pantone
President-Elect First Vice President Vincent Howard Second Vice President
Treasurer Jonathan Dwork Parliamentarian Jerry Gans Immediate Past President
Third Vice President Geraldine Ly
Executive Director Janet Thornton
Ted Wacker
H. Shaina Colover
Scott Cooper
Board of Directors Melinda S. Bell, Anthony W. Burton, Brent W. Caldwell, Darren J. Campbell, Cynthia A. Craig, Robert B. Gibson, T. Gabe Houston, Paul E. Lee, Kevin G. Liebeck, H. Gavin Long, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2014 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited. ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
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Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051
Contents
Features:
12 Surprise me!
Our procedural jurisprudence abounds with possibilities that many attorneys don’t consider or may not realize exist. A statute can hide in plain sight for years before being discovered by the bar. This judge believes it may be time for a little more derring-do by attorneys in the courtroom.
Hon. Anthony J. Mohr
24 Civility: Want to get a cup of coffee?
Grab a cup of coffee, or a beer, with opposing counsel – it can lead to more civility, which translates to productivity both in settlement discussions and in the courtroom.
Hon. Daniel Buckley
34 PI cases: Hubbing along
The personal injury hub at the Mosk Courthouse is one-year-old; a look at its component parts, and how it has gone from chaos to relative calm.
Hon. Samantha P. Jessner
46 Improving your experience in the trial courts
Suggestions to improve your experience when the case goes to trial. The trial judge focuses on issues that may arise as a consequence of the loss of court reporters in civil cases.
Hon. Mary Ann Murphy
54 A house for equal justice, from design to completion
A historical look at Los Angeles County’s Stanley Mosk Courthouse and its architect, Paul R. Williams, an African-American and one of the premier architects of his day.
Hon. Elizabeth R. Feffer
64 Mediation: Overcoming emotional hurdles
Mindful client preparation in advance of the mediation session can be invaluable in helping your client to overcome emotional barriers and negotiate with success during the session.
Hon. Michael A. Latin (Ret.)
70 Social-media discovery during the social-media boom
The challenge of finding relevant information in an avalanche of social-media data.
Chief Magistrate Judge Suzanne H. Segal
78 An ideal mentor for lawyers
Let Poor Richard be your mentor. Six lessons from Benjamin Franklin’s classic proverbs are your guide to success in the courtroom.
Hon. Gregory Alarcon
86 The Case Management Conference
CRC 3.724 meet-and-confer: Truly “meeting and conferring,” with proper preparation, can help identify and resolve key issues in your case and prevent delays.
Hon. Rolf M. Treu
Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org
6 — The Advocate Magazine
JULY 2014
88
Abraham Lincoln – lawyer first
He was called Honest Abe in part because of his ethics as a lawyer for more than 25 years before becoming President. A look at Lincoln, the lawyer, and the ethical principles that guided him in his law practice.
Hon. Michael L. Stern
103
Defense mental examinations and plaintiff’s psychiatric diagnosis
What you must know before your plaintiff is exposed to the pain of a mental exam.
Justine Durrell and Ronald B. Schwartz
110
The art of no
An essay on the practical, ethical and moral difficulties in rejecting potential clients.
John Hinman
Departments:
8
A BOUT THIS I SSUE Perspectives from the Bench Giants of the bench and bar
Martin Aarons
113
Appellate Reports and cases in brief Duran v. U.S. Bank National Association creates new rules for dealing with statistical sampling in class-action litigation. Also Chaudhry v. City of Los Angeles, and more.
Jeffrey Isaac Ehrlich
118
F ROM
THE
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
Telling the stories to the jury It works in the courtroom and will work in the initiative battle.
Stuart Zanville
119
F ROM
THE
P RESIDENT
Orange County Trial Lawyers Association
Treading water
120
G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington
121
CAALA R ESOURCE C ENTER New CAALA Affiliate Vendors
121
O PINION IN THE C OURTROOM The great helmet myth
122 124
Affiliate Vendors are an excellent resource to help improve your practice and a way to save money.
Larry Booth
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS F ROM
THE
P RESIDENT
Consumer Attorneys Association of Los Angeles
Wrongful death of a child No justice. No peace.
Geoffrey Wells
Changes are in the air.
Casey Johnson On the cover: Main Image: Composite image of hammer and gavel on abstract screen | Wavebreakmedia Ltd. | www.thinkstockphotos.com Abraham Lincoln, circa 1857. The photographer, Amon T. Joslin, owned “Joslin’s Gallery” located in Danville, IL., next to one of Lincoln’s favorite stopping places in Vermilion County while he was a traveling lawyer. Courtesy Allen County (IL) Public Library.
JULY 2014
The Advocate Magazine — 7
Martin I. Aarons
Perspectives from the Bench Giants of the bench and bar We all stand on the shoulders of giants. For more than five years Joe Barrett has seamlessly guided Advocate’s Perspectives from the Bench edition as Associate Editor with ease and professionalism and consistently rounding up judges and cajoling them to write articles to help us in the courtroom and in our practice. Joe made it all look so easy. So when I agreed to take the reins as Associate Editor for the Perspectives from the Bench issue, I was so thankful to spend some time talking with Joe about how he made it all work. I quickly learned, from talking with Joe as well as with potential judge writers, all the hard work and effort Joe had exerted. It was all that groundwork of talking to judges in the past and getting them to consistently write, and think about writing for our organization, that enabled me to put this edition together. Thank you, Joe, for being my giant – you made my job easier. While we are on the subject of giants, I can’t help but to think of CAALA and the amazing attorneys throughout our organization. We are the giants for our injured clients – helping
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JULY 2014
them obtain fair compensation for having been wronged so they can pay bills, get medical care, and provide for their families. We are the giants of the courtroom – the best trial attorneys in the State of California seeking and obtaining justice for those who can’t afford an attorney. We are the giants for each other – through CAALA’s fabulous educational seminars we teach each other how to be giants – how to be the best lawyers and achieve the best results. It is the giants of CAALA – all of us – who give a voice to our clients and make this organization great. However, we could not be giants for our clients and each other without the giants on the bench. And this edition is not short on giants. How about having Benjamin Franklin as your mentor? Judge Alarcon gives us all that opportunity by drawing from Poor Richard with lessons to guide our actions. Or perhaps Abraham Lincoln can give us all a primer on the principles of being an ethical lawyer. Judge Stern has done just that with his detailed history of Lincoln as an ethical advocate. What is more of a giant than the colossal Stanley Mosk Courthouse we all call home? Judge Feffer submitted a fascinating article about the creation of the downtown courthouse and its architect Paul Williams. While we are at Stanley Mosk, how about the giant project of the PI Court Hubs housed on the Sixth Floor? Now that the PI Hub has been around for about a year, Judge Jessner’s article is a must read on how to best utilize and make the PI Hub system work efficiently for each and every case. I could not mention the PI Hubs without hearing from the giant who helped to create and orchestrate it all, Judge Buckley. His “rule” (which I won’t give
away) for dealing with the challenges of the Court system and creating more civility amongst parties should be implemented by all of us. If we all followed Judge Buckley’s advice, we wouldn’t have as many knock-down drag-out fights with opposing counsel and we’d all be a lot happier! We also have informative articles on how to be better lawyers – tips to make us better in court. Judge Mohr’s article hands out numerous “surprising” tips outlining different tools of the trade we could use in practice to be better lawyers and achieve maximum results. Judge Murphy’s article outlines a plethora of suggestions to make our trial and court experiences smooth and easy. Judge Treu reminds us all of the requirement to truly “meet-and-confer” in advance of our CMCs to help move our cases along. Social Media has become its own giant. Everyone is either on some form of social media or has a friend or family member on a social media site. Chief Magistrate Judge Segal’s article on social media discovery is a great primer on the subject rearing its head in discovery disputes. Finally, almost all our cases wind up in mediation. Judge Latin (Ret.) explains how if we don’t have our client emotionally prepared for mediation, it could be a giant failure. His article explains the best practices for involving your client in the mediation process so the client is a willing participant and not an obstacle to settlement. I put this edition together by building on the foundation laid by Joe. We can all build our practice and abilities as lawyers by building on the advice and messages from the judges in this issue. Stand on their shoulders and we’ll all be successful.
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10 — The Advocate Magazine
JULY 2014
Hon. Anthony J. Mohr
Los Angeles Superior Court
Surprise me!
It may be time for a little more derring-do in the courtroom Something in a lawyer’s genes makes us admire procedure, especially the novel twists. We live for the rush of a new tactic and savor the sleeping statute. This oddity doesn’t go away upon becoming a judge. While I appreciate counsel who handle their cases efficiently within the parameters of our rules (and most do), at times I would enjoy a little more derringdo. It’s possible. Our procedural jurisprudence abounds with possibilities 12 — The Advocate Magazine
JULY 2014
that a number of attorneys don’t consider or may not realize exist. A statute can hide in plain sight for years before being discovered. A recent example occurred in connection with the trial court’s gatekeeping role with respect to expert witnesses. Until 2013, most opinions about this topic focused on Evidence Code section 801 and ignored its neighbor, Evidence Code section 802. The then most significant decision in the field, Lockheed Litigation Cases (2004) 115
Cal.App.4th 558, failed to cite it even once. The section remained in the shadows until Sargon Enterprises, Inc. v. University of Southern California (2013) 55 Cal.4th 747, in which our Supreme Court wrote: “Additionally, as a recent law review article explains, Evidence Code section 801 is not the only statute that governs the trial court’s gatekeeping role. We must also consider Evidence Code section 802. (See Imwinkelried &
Surprise continues
Surprise — continued
Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony (2009) 42 Loyola L.A. L.Rev. 427…)” Now lawyers rely on both sections when they object to an expert opinion. So the message of this article is a simple one: surprise me. Surprise me by finding something in the dark corners of the Evidence Code or the unswept crannies of the Code of Civil Procedure (CCP). It doesn’t have to be a magic bullet that ends a case; a move or tactic that changes a lawsuit’s complexion can be equally significant. If nothing else, it may convince the other side that they have an opponent who’s willing to dig deep into the law. Most of you will be familiar with at least some of the following suggestions, but thanks perhaps to the luck of the draw, I rarely see them in court. If you do, don’t bother reading the rest of this article.
File a lean and mean complaint Unless you have the hard facts at your disposal, don’t ask for punitive damages when you draft a new complaint. Ignore the esoteric causes of action. Just include the simplest claims at your disposal: negligence, malpractice, breach of contract. By slimming down your pleading, you will avoid a demurrer and a slug of interrogatories. Meanwhile start your own discovery, and make it thorough. You can use discovery to search for information that may justify new causes of action or the addition of punitive damages. Union Mutual Life Ins. Co. v Superior Court (1978) 80 Cal.App.3d 1, is illustrative. There, the court said: It is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings. Relevancy of the subject matter is determined by the potential as well as actual issues in the case … In the case at bench, real party should not be denied the opportunity to obtain further information simply because of the uncertainty as to 14 — The Advocate Magazine
JULY 2014
whether or not such information will enable him to bring a national class action. In essence, Union Mutual asks us to declare that the discovery sought in the Group III interrogatories is improper because the purpose of it is to obtain information which will be of assistance to real party in amending his complaint to state a cause of action for a ‘national class action.’ This is the precise reason why the discovery should be permitted. Without more complete information, we cannot say that there is no reasonable possibility of real party stating a class action with respect to at least some of the nonresidents. (Id., 80 Cal.App.3d at p. 12.) In other words, let the discovery responses be your guide. If you strike pay dirt, that’s the time to add more claims and larger damage prayers.
Use case questionnaires If your action falls under economic litigation for limited civil cases, serve a case questionnaire with your complaint. True, you will be disclosing, early on, “fundamental information” such as your client’s damages and the identities of witnesses with knowledge of the relevant facts, but defendants will have to do the same when they answer. (Code Civ. Proc., § 93.) If they fail to do so, you can win monetary sanctions and, if that doesn’t work, issue, evidence and terminating sanctions. Consider: unless you’re dealing with a loosely educated opponent, you’ll eventually have to answer a set of form interrogatories. Why not complete that task before filing, when you can obtain the information at leisure, without a deadline and with ample time to interview your client? An added advantage is that if you don’t like your new client’s answers, you can decline the case without having to move to withdraw. In addition, using a questionnaire signals to your opponent that you have nothing to hide and are probably ready to try the case. Insurance carriers will take notice of that. Finally, if and when the defense serves you with discovery, you can recycle the answers
you’ve already provided (assuming you have no new facts).
If the case is complicated, maybe it’s complex Just because your case didn’t land in the complex-litigation program doesn’t mean it’s not “complex.” It may be, and if you believe it is, ask the judge to deem it complex pursuant to Rule 3.400 of the California Rules of Court (CRC). For example, if there are “Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve,” the matter may qualify for complex treatment regardless of whether it’s assigned to a complex litigation judge or a regular trial court. (CRC 3.400(b)(1).) Obtaining complex designation will enable the judge to exercise more vigorous hands-on management and will let you employ a variety of creative techniques. (See, e.g., First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1268-1269.) On the other hand, declaring a case complex does not result in a committed relationship. CRC Rule 3.403(b) allows a court, with or without a hearing, to decide on its own motion, or on a noticed motion by any party, that a civil action previously declared complex is no longer so. If you find yourself mired in protracted hearings that you think are simply wasting everyone’s time, consider asking for this type of relief.
Demur to the answer Demur to the answer. That sounds like bizarre advice, coming from a judge who doesn’t care for demurrers, but not really. While demurrers to complaints rarely accomplish much, demurrers to answers (and motions to strike affirmative defenses) can. Most judges will not view this procedure as a delay tactic, because too many attorneys lard their answers with empty affirmative defenses that cry out for removal. Eliminating
Surprise continues
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them will force counsel to focus on the real issues. There’s another little-noticed option. If you want to demur to a cross-
complaint but also want the earliest trial date possible, CCP section 430.30(c) allows you to “demur and answer at the same time.” That device sends a signal
that you are not trying to delay and that your demurrer is serious.
Submit a paint-by-numbers guidebook for oral argument One attorney has used this method in my court with success. Rather than relying on a PowerPoint presentation during an oral argument, he hands up a three-ring notebook, tabbed by subject. Tab 1 may be the relevant statute; tab 2, a controlling case; tab 3, a deposition nugget; and so on. Then he walks the judge through each of his points. Instead of having to stare across the courtroom at a big screen with type too small for aging eyes, the judge has a binder to thumb through during the hearing and paper on which to make notes.
Use in limine motions to admit evidence Almost every motion in limine asks a court to exclude evidence, such as insurance coverage, gory photos, and the like. Yet no law prevents you from moving in limine to admit evidence. If, for example, a particular document may make or break a case, but its admissibility is questionable, ask the judge to admit it. Better still, don’t wait for the final status conference; file the motion early. The Superior Court of Los Angeles County, Local Rules, rule 3.57 does not state when a motion in limine shall be filed or heard. Resolving the issue quickly may help settle the case before you sink money and time into what may turn out to be a losing cause. As one lawyer asked during a case management conference, “Wouldn’t you rather fall off the bottom of the mountain than the top?”
Confront the hard jury instructions now If a legal question is preventing you from settling, move early for a jury instruction. Consider enlisting your opposing counsel in the effort. The court will appreciate a joint motion for a jury instruction in which both sides submit dueling versions. Instead of hashing them out while the jury waits in the hall,
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you and your judge will have more opportunity to ponder and think. An added advantage: you will have time to
seek appellate guidance, and if the question is significant enough, the Court of Appeal may take your writ.
Review your transcripts over coffee!
Supplement your case Section 464 of the Code of Civil Procedure says that a party may move for leave to file “a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” Rarely do I see such a motion. Especially in business cases, there must be more than a couple of occasions where something actionable occurs after the initial pleadings are on file.
Supplement your discovery Why don’t more people take advantage of supplemental interrogatories and requests for inspection? (Code Civ. Proc., §§ 2030.070(a), 2031.050(a).) For each of these devices, the Code of Civil Procedure allows a party to serve three supplemental discoveries, including one after the court sets a trial date. (Code Civ. Proc., §§ 2030.070(b), 2031.050(b).) I’ve seen too many occasions where someone tries to block exhibits because “they were not produced in discovery,” only to be told “we didn’t know it existed until a few months ago.” A supplemental inspection demand would have caught that document.
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Although rare in a personal injury suit, you may on occasion face causes of action for common counts, such as money paid or account stated. Section 454 of the Code of Civil Procedure allows you to demand the account that forms the basis of these types of claims. If the plaintiff fails to comply within 10 days, the plaintiff cannot produce evidence about it. If the complaint is verified, the bill of particulars must be verified. The procedure is quick and cheap; it doesn’t count against the number of interrogatories you have; and the remedy for noncompliance is severe.
Use those party depositions The deposition of an adverse party can be used “for any purpose.” (Code
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Civ. Proc., § 2025.620(b).) Any means any. You are not restricted to prior inconsistent statements; yet many attorneys fail to use a party deposition for any other purpose. How about, for example, using the transcript to show that the party’s testimony is not true? You don’t need to put the party on the stand to do so. One of the most effective uses of a party deposition I ever saw occurred toward the end of a wrongful-death trial involving a man who was killed when his van rolled over. Defense counsel stood up and read the following from the plaintiff ’s deposition: Q: “Did your husband ever take the van to anyone other than Defendant (repair shop) for repairs?” A: “No.” Q: “Did you personally take the van for repairs anywhere else?” A: “No.” Then counsel called a mechanic from another shop that was not a party to the case. That witness produced a work order showing that the decedent and his wife had taken the van there shortly before the accident. Next, counsel read another snippet from the widow’s deposition and called a second witness to refute it. Finally, he read from a third section and called yet another witness to demolish what the plaintiff had said. The jury acted more attentive than it had during the preceding several weeks, and I am sure that tactic helped the defense win the case. Criminal lawyers understand this move better than we do. During her opening statement in a murder trial before me many years ago, the deputy district attorney played a taped statement made by the defendant when the police interviewed him. For forty-five minutes, the jury heard the defendant explain why he had shot the victim. Had the jury believed him, they would have acquitted on self-defense grounds. But the purpose of the tape was to prove the defendant had given a false exculpatory statement, in other words, a lie. Parenthetically, that’s the basis of the Miranda warning: that anything you say can and will be used against you.
The Discovery Act is not exclusive Lincoln Pullin is your friend. He never wanted to be. But one rainy February day, he fell at a Von’s market. His lawyer hired Engdahl, a forensic safety engineer who, while the store was open for business, went there and conducted a brief, nondestructive test on the floor to determine the coefficient of friction. When Engdahl finished, he bought something and left. The entire process took no more than 15 minutes. When the defense learned of this, they howled, but the Court of Appeal saw nothing wrong with what had occurred. “…There are situations where documents can be obtained without the other party’s cooperation.” This was one of them. The expert “was not a trespasser…there was no vandalism…there is no claim that Engdahl did anything to interfere with Vons’s ability to conduct its business or with Vons’s customers…There was no loitering. We do not see any unlawful conduct.” To bring home the point, the court made it clear that, “All we are saying in this opinion is that evidence is not made inadmissible by the simple fact that it is obtained by investigation rather than by way of formal discovery.” So keep this case handy: Pullin v. Superior Court (2000) 81 Cal.App.4th 1161.
Host a talk show during voir dire There is no need to be stiff and formal during voir dire. Its purpose is to learn about the prospective jurors, and asking for yes/no answers is not a good way to do that. Nor is repeating what the judge has asked, juror by juror, until the panel is ready to explode. Consider what happened in my court one Monday morning, after counsel began repeating questions that called only for a yes or a no: Prospective Juror A: “Sir, on Friday we all told you we would listen to the evidence and use the judge’s instructions. How many days are we going to sit here being asked questions? We said on Friday we would do it. So, let’s go.”
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The Advocate Magazine — 21
Surprise — continued
Prospective Juror B: Ditto. Prospective Juror A: “It’s disrespectful to us. I’ve got a family. I’m not making money. I want to get money for my family, and I can’t do it until I’m dismissed. I’m cool to be on the jury, but let’s go.” Counsel: “Okay. All right. Are you holding it against me?” Prospective Juror A: “I’m holding it against all four of you. I think it’s an abuse of the system. You could have been done already. We could have been back at work…Let’s hear the evidence, not you guys trying to condition us to feel one way or the other. It’s ridiculous.” The point of voir dire is to get to know the jurors, so make them talk. (But not the way Prospective Juror A did.) There’s nothing wrong with acting like the host of a talk show who knows how to draw people out. Be the moderator; ask open-ended questions. “What went through your mind when the judge told you this was a complaint for medical malpractice?” “What do you like best about your job?” “You said the last jury you were on didn’t reach a verdict? How did you feel about that?” Think of voir dire as the legal equivalent of speed dating. Just be careful not to violate Standards 3.25(f) of the Standards of Judicial Administration (e.g., “You like ant farms? I have one too.”) With time, you will become less nervous when you question prospective
jurors. It’s easy to practice if you treat every gathering of strangers as an opportunity to get people talking. Chat with the cashier at the supermarket checkout line. Ask what prompted him to take the job? Does he hope to advance in the company and if so, how? Converse with the next cabby with whom you ride. In one trial, Charles O’Reilly became so engaging with the prospective jurors that he had them chuckling comfortably. When a woman on the panel said that she didn’t mind dating older men (the subject was relevant in this particular case), he said, “That’s wonderful. Will you marry me?” Yes, it was technically a rule violation, but Charlie knew the rules so well that he knew when to break them, and even his opposing counsel ended up laughing along.
You can lead your expert That’s not a misprint. You can lead an expert witness on direct examination, which is a major exception to the normal rule. (People v Campbell (1965) 233 Cal.App.2d 38, 44; Chula v. Superior Court (1952) 109 Cal.2d 24, 38; comment to Evid. Code, § 767.) So don’t object if your opponent takes advantage of this wrinkle. You don’t want to look bad in front of the jury when the judge tells you why your objection is overruled.
Watch for this conclusive presumption If a written contract surfaces in your lawsuit, check carefully to see if it contains any factual statements. If so, the parties to the agreement must live with them. Evidence Code section 622 provides that with the exception of a recital of consideration, “[t]he facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest.” Woe to the contracting party who takes the stand and tries to prove something different.
Give every exhibit a single number The Feds have it right. Local Rule 26-3.1 of the United States District Court for the Central District of California 22 — The Advocate Magazine
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requires each document used in discovery to be “numbered sequentially. Only one exhibit number shall be assigned to any given document. Exhibits shall be numbered without regard to identity of the party introducing the exhibits.” In other words, when counsel uses a document for the first time, e.g., in a deposition, and marks it Exhibit 5, that document will be known as Exhibit 5 for the life of the case. This rule reduces confusion, simplifies your recordkeeping, and will make judges (at least me) smile. I could go on, but you get the idea. Look harder, and look everywhere. The Eureka moment will be worth the effort. Not only may what you find help you win; it will help you have more fun. Governor Pete Wilson appointed Anthony J. Mohr to the Los Angeles Municipal Court in 1994. On December 23, 1997, Governor Wilson elevated him to the Superior Court, where he currently sits in the complex litigation program. He has served on various local and state judicial committees, including the Superior Court’s Executive Committee, the CJA Ethics Committee and two California Judicial Council advisory committees. He is involved in teaching judges and attorneys throughout the state. Judge Mohr is the co-author of the California Paralegal Manual: Civil Trials and Evidence (Thomson Reuters 2010, 2011) and has served as a contributing editor to the Rutter Group’s California Practice Guide – Civil Procedure Before Trial (chapter 12 – settlement, and chapter 14 – representative and class actions). He is also a co-editor of the Resource Guide for Managing Complex Litigation, published by the National Judicial College. From September through December, 2009, Judge Mohr was assigned as a judge pro tem on the Court of Appeal for the Second Appellate District. He has authored articles in the Pepperdine Law Review, the Southwestern Law Review, the Valparaiso Law Review, and the Los Angeles Lawyer. Other essays, and short stories he has written have appeared in a number of places, including Bibliophilos, The Christian Science Monitor, The Coachella Review, Commonweal, Diverse Voices Quarterly, Eclectica, Literary House Review, Oracle, The Sacramento Bee, Workers Write — Tales from the Courtroom, Word Riot, and others.
Hon. Daniel Buckley
Los Angeles Superior Court
Want to get a cup of coffee? Civility requires communication Over the last year, when I speak to attorney groups, I comment that if I could enact only one rule to deal with the challenges faced by the civil courts, it would be a very simple one: All attorneys must have a cup of coffee with their adversaries at the outset of the case. Of course, if the attorneys want to wait until the appropriate time, the drink of choice could be a beer or glass of wine. This is not a formal meeting in which the attorneys exchange evaluations of the lawsuit. Instead, the attorneys must 24 — The Advocate Magazine
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talk about some personal stuff: mutual friends from law school; the schools where their children go; the Clippers or Kings; favorite gym; etc, etc. Why? We need to break open the lines of communication between attorneys in a civil lawsuit and insist that communication start at the beginning of the case. Attorneys need to develop a personal relationship with each other − a personal relationship which makes it much more difficult to say no or ignore the other attorney or send a nasty e-mail.
If we are successful with this rule, we need to advance a critical ancillary rule: two attorneys cannot communicate by email on any issue which may require a meet-and-confer conference. Instead, they must meet face to face or, only upon a showing of good cause, they may talk by telephone. This rule would put an end to attorneys cloaking themselves in the impersonal means of an e-mail which all too easily leads to strident and inflexible positions and personal attacks. It would
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also put an end to requiring judges to read through pages of e-mails that rarely cast an attorney in a good light and often seem sophomoric and gratuitous. What do we accomplish by enacting these requirements? Attorneys actually know each other and, as a result, treat each other in a professional manner and with respect. Ideally, attorneys would naturally stop in the hallways of the courthouse to talk about something other than their current lawsuit. The “kick-off ” cup of coffee would result in forming a foundation for a relationship and bonding before the pressures of the lawsuit kick in. As a result, it would become much more difficult to snub the other attorney. In addition, the attorneys would find it tougher to play hardball during the lawsuit; to say no to another month to respond to the interrogatories; to ignore telephone messages. This closer relationship would lead to the attorneys being better able to discuss settlement and resolve cases because they have a greater trust in their adversary.
Familiarity and contempt Contrary to the old adage, familiarity does not breed contempt. Rather, in civil lawsuits familiarity facilitates open communication and cooperation. We constantly read articles which bemoan the fact that too many in our legislative branch no longer reach across party lines to communicate; many opine this lack of communication has led to an inability to compromise. We in the judicial branch must work hard to avoid succumbing to a belief that it is antithetical to compromise. We must reach across case lines so the plaintiff ’s attorney talks with the defense attorney and vice versa. Civility is a hot topic for many bar organizations that work hard at pointing out the need for civility. CAALA is one of a number of organizations which emphasizes civility at all events and in all publications. Unfortunately, civil judges will tell you that they do not feel that the message and lessons of civility are always finding their way into the courtroom. 26 — The Advocate Magazine
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Judges continue to see too many examples of disrespect and lack of cooperation which are invariably the result of a lack of meaningful and productive communication. For example: • Attorneys file far too many motions to compel and other discovery motions where it is obvious that the attorneys are not communicating with each other and the meet-and-confer process is reflected in an exchange of lengthy letters or e-mails which become progressively vitriolic. • Attorneys are indifferent to opposing counsel’s personal issues (e.g., sick spouse, expert unexpectedly engaged in another trial). • A party files an amended complaint the day before the hearing on a demurrer or withdraws the motion the morning of the hearing, after the research attorney and judge have spent hours of work on the matter. • An attorney notices an ex parte hearing but does not appear for the hearing, without any attempt to tell opposing counsel. • Two attorneys snipe, sometimes yell, at each other during oral argument making it evident that when they appeared for the hearing, they clearly did not know each other. In discussing the cause of the overabundance of demurrers, it is often the case that plaintiff ’s attorneys point the proverbial finger at defense counsel. Yes, we have too many demurrers which are the result of an automatic response by defense counsel to file a demurrer with regard to certain causes of action or allegations and the ruling is most often to sustain the demurrer with leave to amend or to overrule entirely. It is also true that often the demurrer is the result of over-reaching by the plaintiff ’s attorney: 13 causes of action are not often appropriate in every lawsuit and punitive damages are not warranted in all cases. If lawyers had started the lawsuit by sitting down to enjoy a libation of their choosing, it follows that with open lines of communication, both sides can work toward a compromise which may allow for an easy way to amend later in the
case or recognition that the dispute cannot be resolved with the demurrer and a motion for summary judgment or a trial is necessary. The lesson is that achieving these agreements and efficiencies cannot occur without meaningful communication. A practice that is not uncommon in the medical malpractice arena is a plaintiff naming a defendant in a medical malpractice lawsuit and when the defendant files a motion for summary judgment, not only does the plaintiff not oppose the motion, but he does not give advance notice of the non-opposition to opposing counsel or the court. This failure to communicate causes a valuable slot for a complicated motion in the Personal Injury hub courts’ Computer Reservation System to be taken which could have gone to another disputed motion. As a result, that other hearing must be heard later – again, the result of no communication. Attorneys did not go to law school, and judges definitely did not seek to become judges, to deal with disputes created, or exacerbated by, personal differences or failures to communicate. Judges should be dealing with a complicated anti-SLAPP motion or a novel legal issue on a motion for summary judgment, not whether 117 of the 155 interrogatories are vague; whether the judge needs to rule on the same eight objections to each and every statement of undisputed fact – all 143 of them; or how to decide which attorney is telling the truth when both insist they called but the other attorney did not return the call. (These examples are true; the names have been withheld to protect the guilty. The substance of the dispute – and too many times the dialogue between the attorneys – makes the judge feel like she is on a car trip with her children and listening to them complain because “he is looking at me!”) The majority of attorneys are extremely professional, trustworthy and reliable. But the reason that this article is necessary is because the number of attorneys, who refuse to communicate with the other side and display a fundamental
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disrespect for others, including the Court, is too high. We do not have the time to devote to their squabbles.
Think back to a case that you enjoyed litigating and that caused you little to no unneeded stress. It was most
likely because you had a good relationship with opposing counsel that was defined by open communication. There is no doubt that a positive result of open communication and cooperation among attorneys is that everyone will experience less stress. Another positive result should be obvious. We are in the midst of an unprecedented financial attack on the courts resulting in a severe reduction of staff and courtrooms. This, in turn, has led to similarly unprecedented court congestion. In all the civil courts (Independent Calendar, Personal Injury, Limited Civil Jurisdiction, Unlawful Detainer, and Collections), we face delays of months for hearings on all types of motions. A simple solution is to significantly reduce the number of discovery motions, demurrers and other motions filed without any real communication between the attorneys. Judges uniformly believe that they would be able to schedule hearings much sooner if they were not forced to hear and decide so many motions which result primarily from no communication or cooperation among the attorneys. Of course, the Court can find other ways to reduce congestion, including ways to increase the number of courtrooms. However, that is the topic of another article.
Civility varies in civil and criminal courts It is telling that judges who have sat in criminal courts are shocked by the difference in civility in the civil courts. Attorneys in a serious felony case, in which a defendant could lose his or her freedom for decades, invariably display the utmost cooperation, professionalism, and, yes, civility. Yet some attorneys in a limited jurisdiction civil case, with a potential award of $10,000 and $20,000 at most, cannot agree on whether the lights in the hallway were on or off before entering the courtroom. One can consider a number of reasons for this difference between the
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criminal and civil attorneys but the best explanation is most criminal attorneys (prosecutors, public defenders, and pri-
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vate defense attorneys) work in the same courthouse every day, often in the same courtroom, where personal relationships
are developed. As a result of this closer relationship, the attorneys have an expectation that others will be cordial and cooperative. The judges and staff members also expect everyone to be more cordial and cooperative. This same level of cooperation can be found in the probate courts, in which the same situation exists – the attorneys appear in the same courtroom for many of their cases, which forces them to develop relationships with the attorneys on the other side of the case. To put it bluntly, it is far more difficult to be an ass when you have talked with the other attorney about his child’s college applications or the two of you have discussed your vacation plans or you will see her every day for the next year. Do not be misled into thinking that more civility means an attorney is failing to fully and aggressively represent her clients. Absolutely not! An attorney can at the same time advocate on behalf of one’s client based on applicable rules and laws, aggressively fight to advance the best interests of one’ client, and have a cooperative and professional relationship with opposing counsel. In other words, having a cup of coffee with opposing counsel takes nothing away from one’s ability to zealously represent one’ client. In fact, it is quite the opposite – conducting oneself in a professional and reasonable manner will most definitely result in cost savings to one’s client because the attorneys will not find themselves in court arguing about issues that could have been easily resolved without court intervention. And, as noted above, a cooperative relationship with opposing counsel will foster settlement. Judges will also tell you that the most successful civil attorneys usually do not resort to the gamesmanship connected to a lack of civility. One reason is prominent lawyers often oppose the same attorneys. As a result, accountability is key. Conversely, many civil attorneys can appear in a number of cases, over several years, and not see the same attorney or judge. Because of this lack
The best way to “attract flies” Judges and attorneys fully recognize the pressure on attorneys to deal with workload, billings, the need to keep the current client, and the importance of winning the case not only for the current client but also in order to develop future business. There is no question, however, that an attorney will realize more and consistent success by conducting oneself in a civil and honest manner. After all, we all know that you attract more flies with honey than with vinegar. Think about what adjectives you use when you describe a judge that you like – reasonable, he listens and gives you time to make your argument, she lets you know what she is thinking. Invariably, she is cordial meaning that she did not yell or lose her cool. There is no reason that the same attributes cannot define an effective attorney who represents the interest of the client and gets good results. Next time you are in the courthouse, take a couple of minutes to observe a good trial attorney. No doubt, you will see an attorney who is respectful to court staff, the judge, opposing counsel, and the jury, listens to the witness, and is attentive to the jury. There is no reason that attorneys should wait until a jury is present to conduct themselves in this manner. Attorneys should endeavor to be on their best behavior all the time. Judges recognize the pressures of practicing law and are trying to facilitate cooperation and candor among attorneys. The court worked with several leading bar associations to develop the Voluntary Efficient Litigations Stipulations (“VELS”) which provide formal means to work out differences on demurrers, discovery disputes, motions in limine and other common disputes in civil litigation. The VELS are available on the Court’s Web site under “Tools for Litigators.” Also, a growing number of judges are willing to participate in an informal
discovery conference. (These “IDCs” are required in the PI courts when the dispute has to do with a motion to compel further discovery responses.) The judges who conduct these conferences will tell you that they seldom have to hear a motion after an IDC because the attorneys almost always resolve the dispute when they sit down in a room faceto-face and discuss the discovery issues. (One unfortunate observation by the judges is that usually these conferences are the first time the attorneys are speaking to each other.) When the VELS were first promulgated and judges began to discuss them with attorneys at law firms or bar groups, judges were told that attorneys were hesitant to suggest using them because it would be viewed as a sign of weakness to be the first to raise the issue. This was very disturbing to hear. The fact that an attorney is afraid she will compromise her client’s position by agreeing on issues shows that we have sunk to a very low point. We must endeavor to have the courage to do what is right and that is to conduct ourselves in such a way as to foster communication, cooperation, and professionalism. The Supreme Court of California recently recognized the epidemic of lack of civility. The oath that we took had us swear to support both the United States and California constitutions and that we would faithfully discharge the duties of an attorney to the best of our knowledge and ability. Based on a recommendation by the State Bar of California, the Supreme Court recently approved the addition of language regarding civility. As of May 23, 2014, new admittees will also have to promise to “conduct [themselves] at all times with dignity, courtesy, and integrity.” One can only hope that new attorneys adhere to this oath. The fact that the Supreme Court saw fit to amend the oath certainly speaks volumes regarding the demise of civility in the profession of law. Judges fully recognize the talents of our civil bar. Most attorneys are professional and courteous toward the Court
and their adversaries. We all are honored to work in the finest profession in the land. But quite simply, we all will benefit from more civility. The courts will run more smoothly, clients will be more satisfied because they will not be paying for needless litigation, attorneys will be less stressed, young attorneys will learn from positive role models, and we can look in the mirror and know that we are facilitating justice. The next time you attend a bar meeting, listen to the message of civility that is conveyed. And, instead of discarding the message as soon as the valet brings your car around, be bold and take the first step toward practicing the message of civility – after you know the name of the defense attorney, pick up the phone (note that I do not suggest sending an e-mail) and schedule a time to go get a cup of coffee with opposing counsel. If you opt for a beer instead, enjoy the talk. Hon. Dan Buckley sits on the Los Angeles County Superior Court and serves as the Supervising Judge of the Civil Departments. Before the move to the Mosk Courthouse, Judge Buckley sat in Pomona, where he served as the Supervising Judge of the East District, and over the years handled misdemeanor, general civil, felony trial, felony master calendar and probate courts. Judge Buckley teaches trial advocacy at Loyola Law School and both California Civil Procedure and Remedies at USC, and has taught a number of classes to judges. Before taking the bench in 2002, Judge Buckley was a shareholder at the Los Angeles firm of Breidenbach, Buckley, Huchting & Hamblet. He had a general civil defense practice with a concentration of trials in the areas of toxic torts, professional negligence, personal injury and insurance coverage; and served as managing partner for a number of years. Judge Buckley attended the University of Notre Dame for his undergraduate and law degrees.
of accountability, it is easy to disregard civility. There are little to no consequences to bad behavior in this scenario.
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Hon. Samantha P. Jessner Los Angeles Superior Court
Hubbing along
A look at the personal injury hub courts and how to use them effectively If you had a court appearance in a general-jurisdiction personal-injury case about a year ago, you may remember being notified that your case had been transferred to a department in the 90s in the Stanley Mosk Courthouse downtown. You may also recall that as you walked down the hallway on the west side of the sixth floor, the walls were papered over with page after page of calendars for Departments 91, 92, and 93 listing in excess of 75 matters on each 8:30 calendar. You probably also remember standing in a line that snaked outside of each courtroom at least 50 lawyers deep. A judge may have appeared for a few 34 — The Advocate Magazine
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minutes to attempt to explain what was going on and how these changes would affect your case. Finally, you most likely left with two standing orders, one general and one for a Final Status Conference (“FSC”); and three dates, an FSC date, a trial date, and an order to show cause re dismissal date; along with a good deal of frustration about how your case was going to be handled. In contrast, if you walk down the same hallway today, there are no longer pages and pages of calendars affixed to the wall. You may see a few lawyers, but nowhere near the queues you saw a year ago. In other words, compared to the
barely organized chaos of a year ago, the atmosphere of the Personal Injury Hub on the sixth floor of the courthouse reflects relative calm. This article will discuss how the PI Hub has changed during its first year in existence, what lawyers are doing right in the PI Hub courts, and areas where attorneys can improve.
Implementation of the personal-injury hub According to Merriam-Webster’s dictionary, a “hub” is “the central and most active part or place.” Certainly, the first
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Farris Tarazi
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several months that the PI Hub was in existence were consistent with this definition. However, the court’s definition of a hub is slightly different. “Hubbing,” yes, like “antique-ing” is a made-up word, which is on its way to becoming part of the court zeitgeist. In court parlance, it has come to mean aggregating cases of a certain type in one courthouse or several courthouses. The Los Angeles Superior Court created hubs in response to unprecedented budget cuts. In order to continue to keep the civil doors open, the court determined that savings could be achieved by aggregating certain types of cases in one or several courthouses, including generaljurisdiction personal-injury cases, limited jurisdiction cases (collection and noncollection), unlawful detainer cases, traffic cases, and small-claims cases. With
regard to general-jurisdiction personalinjury cases, based on an informal study of case-management data, the court determined that approximately 82 percent of such cases involve four appearances or fewer, even including the FSC and trial, between the filing of the complaint through resolution of the action. By centralizing the pretrial component of all general-jurisdiction PI cases, the court believed that it could significantly reduce the staff and resources it was using to adjudicate these cases countywide. As a result, the court aggregated about 16,000 personal-injury cases into three (now four, see discussion below) courtrooms downtown. The court designed a uniform set of procedures applicable to each of the PI Hub courtrooms which are memoralized in the two general orders. And the PI Hub was born!
Computer reservation system and motion dates Many of us are familiar with “Open Table” as a means of securing a dinner reservation. Consistent with the goal of reducing staff workload and achieving cost savings, the Los Angeles Superior Court developed a computer reservation system in the PI Hub which parties must use to secure a hearing date for a motion. The Open Table of motion scheduling, if you will. We fondly refer to this system as CRS, or “Chris.” Obviously, the idea of obtaining a motion date through the Internet is hardly revolutionary in this day and age. Indeed, it is consistent with the many technological innovations the court will implement over the next several years. For purposes of CRS, motions are divided
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into three categories – heavy, medium, or light – based on the amount of work required by the court to prepare the motion for hearing. Using input from the judges and research attorneys assigned to the PI Hub, the court determined how many motions of each type the judges and research attorneys could handle daily. Each court hears motions every day of the week at 1:30 p.m. While CRS provides an easy way to reserve a motion, the reality is that motions are so numerous that it can be difficult to obtain an early hearing date. Before January 2014, if a party wanted to schedule a hearing on a heavy motion (e.g., a motion for summary judgment or a demurrer), the only available hearing dates were more than a year away and long after the trial date. The court realized fairly quickly that it needed to address this issue. Part of the reason that it was so difficult to obtain hearing dates for motions was that attorneys, aware of the difficulty, would schedule hearings out of an abundance of caution, regardless of whether a decision to file the motion had been made. In addition, some attorneys reserved multiple hearing dates for the same motion. If the matter or case was later resolved, attorneys often did not cancel the hearing date(s). So the court needed to find a way to minimize reserved, but unused, hearing dates and reservations made primarily to save a date before the decision was made to file a motion. To that end, in January 2014 the court began to require that filing fees be paid at the time that a reservation is made rather than when the motion is actually filed, which in some cases is months later. In addition, the court made the fee nonrefundable. In addition, and in direct response to the lack of availability of hearing dates, in January 2014 the court added a fourth PI Hub court, Department 97. The addition of the fourth court created five additional hearing days each week. As a result of these two changes, it appears that it is now somewhat easier to get a timely hearing date. As of the writing of this article, in two of the PI Hub
courtrooms, hearing dates on heavy motions were available within about six months. In the other two courtrooms, hearing dates on heavy motions were available within about eight months. While the wait is still not ideal, it is a substantial improvement. Just as the court identified the problem regarding obtaining hearing dates and has implemented changes to address the problem, attorneys must give thought to how the bar can help. One answer involves three simple words: meet and confer. As Judge Daniel J. Buckley, the Supervising Judge of the Civil Division of the Los Angeles Superior Court, often suggests, have a beer (or an equally attractive non-alcoholic beverage) with opposing counsel early in the case (see page 24). Establish a relationship at the outset of a case where you and opposing counsel keep open lines of communication and attempt to resolve issues in a professional manner without court involvement. The benefit of attorneys talking to each other in an attempt to obviate the need to file motions is reflected in the local rules of the United States District Court for the Central District of California. Local Rule 7-3 requires attorneys to contact opposing counsel “to discuss thoroughly, preferably in person, the substance” of a contemplated motion and any potential resolution prior to the filing of the motion. There is no doubt that if attorneys in the personal injury arena discussed issues related to motions prior to filing them, the number of motions could be greatly reduced. For example, the court reviews and decides many motions to strike punitive damages in cases involving accidents caused by a driver allegedly under the influence of alcohol. The court has received stipulations from prominent personal injury law firms in Los Angeles whereby the attorneys agree that a punitive-damages allegation can be withdrawn without prejudice at the pleading stage, and if facts are developed through the discovery process to support a prayer for punitive damages, the plaintiff may seek leave to amend the complaint to
add a prayer for punitive damages. This type of stipulation eliminates several rounds of motions at the pleading stage. It also reflects a meaningful discussion on the part of counsel about whether punitive damages are supported by the facts that are known at the outset of the case. A Los Angeles County Bar Association Litigation Section working group regarding litigation efficiency assembled with the assistance of Judge Buckley is in the process of developing a list of best practices for the court and attorneys to mutually realize efficiencies in litigation. The working group will propose that bar associations promote standard stipulations to encourage voluntary amendments in lieu of demurrers, and to strike certain claims without prejudice and make those stipulations available on the bar association’s Web site. It would also be beneficial if attorneys kept in mind how our computer reservation system was designed. On a daily basis, the PI Hub courts receive ex parte applications requesting orders to shorten time for filing and hearing of a motion because counsel cannot get a hearing date that is before the trial date or some other significant date. If you are attempting to calendar a motion on CRS and you see that a particular day has no reservation slots available for the type of motion you are seeking to have heard, that means that the court cannot accommodate any additional motions that fall into that category on that day. In other words, the court cannot shorten time to accommodate a motion on a day that is already full. Therefore, the likely ruling on an ex parte application seeking to shorten time will be a continuance of the trial date to accommodate a hearing on a regularly-noticed motion. The PI judges and research attorneys are working diligently to keep up with the roughly 10 to 15 motions heard in each courtroom every day (in addition to the other work the judges do). There are simply not enough hours in the day to add motions to already full days. The parties should make a meaningful effort to meet-and-confer and agree to continue
dates, including trial dates, to accommodate motions. Assuming diligence on the part of the moving party, stipulating to continue dates for a short time in order to allow motions to be heard is reasonable.
Informal discovery conferences Pursuant to the General Order, the parties must participate in an Informal Discovery Conference (“IDC”) before a motion to compel further responses will be heard. Some attorneys labor under the misapprehension that an IDC is necessary before the motion is filed. That is incorrect. (See General Order, ¶ 12.) To allow time for an IDC at least 16 days before the motion hearing, the motion date should be calendared at least 60 days after the reservation for the date is made. (Ibid.) That way, neither party has to devote resources to a motion until after the IDC, and only if the IDC is unsuccessful in resolving the discovery issues. IDCs are intended to provide an environment where the attorneys can speak informally with the judge about discovery issues, and the judge can assist the attorneys in resolving the issues. The attorneys, in turn, will most likely leave with some understanding of which way the judge is leaning on an issue, although the judge will not make any rulings during the IDC. Some of the PI Hub judges have blank stipulations available to memorialize agreements that are reached during the IDC. As we all know, motions to compel further responses are very labor-intensive both for attorneys and for the court. As a result, while IDCs can be time-consuming, every minute that attorneys spend attempting to resolve issues with the aim of avoiding a hearing on a motion to compel further responses is a minute that is well spent. There are a few things attorneys can do to maximize the benefit of IDCs. As a preliminary matter, an attorney with decision-making authority must attend the IDC, either the lead trial counsel or another attorney who has full authority to make binding agreements regarding discovery disputes. (See General Order, ¶10.)
It is not a good use of anyone’s time to attempt to resolve discovery issues if one of the attorneys must go back to the office to get approval for any agreement. In addition, attorneys should come with a willingness to discuss the issues and resolve them. Generally, if one or both of the attorneys have already had to file a motion to compel further responses or an opposition, they are dug in a bit more when they attend an IDC. We are scheduling IDCs a couple of months out, and attorneys are encouraged to behave reasonably and agree to extend deadlines so that they can continue to meet-andconfer and have time to participate in an IDC before devoting resources to a laborintensive motion that likely will not be necessary. (See General Order, ¶10.) When attorneys participate in the IDC process with an open mind and a dedication to resolving issues short of a motion, IDCs are often successful in resolving discovery issues. If the work inherent in preparing or opposing a motion to compel further responses can be avoided, that is good for the clients and the attorneys, and makes for a very happy judge.
Motion practice With each PI Hub courtroom carrying a docket of approximately 5,300 cases, it goes without saying that the volume of motions is high. That being the case, it is imperative that the attorneys follow the applicable procedural rules. Many of them are designed to enable judges to absorb copious amounts of information in an efficient manner. Tabs are a wonderful thing. The California Rules of Court (hearafter CRC) require them. (See CRC 3.110(f).) Unfortunately, many motions are filed without tabs. As small a thing as it may seem, a lengthy motion is much easier to read and absorb when the exhibits are separated by a tab. A judge who is reading a motion that is tabbed is a happy judge. A judge who is forced to comb through volumes of material to find a particular exhibit because it is not tabbed is an unhappy judge. Please include tabs. JULY 2014
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Otherwise, you may get a call from the court asking you to provide a copy with tabs, which may delay the hearing on
your motion. Fax filings present a particular challenge because they do not include tabs. I offer the following piece
of advice: if you fax file a document that is supported by exhibits that should be tabbed, provide a courtesy copy with tabs to the court as soon as possible. The rules governing summary judgment and summary adjudication motions set forth in CRC 3.1350, et seq., detail the required form of the motion and accompanying pleadings and evidence. Once again, these procedural rules were designed, in part, to make it easier to absorb copious amounts of information. If your pleadings do not comply with these requirements, you run the risk of having your motion continued to allow you to comply with the requirements or of not having arguments or evidence considered. CRC 3.116(c) requires that a party mark a deposition transcript that is filed in support of a pleading “in a manner that calls attention to the testimony.” Given the amount of work the PI Hub judges perform, the importance of following this rule cannot be overstated. Get that highlighter pen out and highlight away, or add brackets or underline. Whatever method you employ to call attention to testimony should be vigorously and rigorously followed. If you want to ensure that a judge has read and considered all of the evidence that you have submitted in support of your motion, it will benefit you and your client to follow the applicable procedural rules.
Final status conference While the four judges in the PI Hub do not preside over trials, we do conduct final status conferences. FSCs are calendared eight court days before trial at 10:00 a.m. and are governed by the Second Amended General Order – Final Status Conference, Personal Injury Courts (Effective January 6, 2014). Essentially, the attorneys are required to prepare a joint Trial Readiness Binder that includes (1) motions in limine; (2) a Joint Statement to be read to the Jury; (3) a Joint Witness List; (4) a List of Proposed Jury Instructions (both joint and contested); (4) Jury Instructions; (5) a Joint Verdict Form; and (6) a Joint Exhibit List. The Trial Readiness Binder
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Hub — continued
containing all of these jointly prepared documents and an exhibit book must be provided to the court at the FSC for inspection. The most common mistake attorneys make in this area is failing to meet-andconfer in advance of the FSC and prepare joint documents. The court realizes that attorneys are very busy, and the requirement of joint documents adds a layer of complication and added time. However, consider this your second opportunity to have a beer with opposing counsel. (Hopefully, at this stage of the case, you will have had many other opportunities to enjoy a libation together. By no means is the court suggesting that attorneys need to consume alcoholic beverages in their efforts to meet-and-confer; a cup of coffee will indeed suffice.)
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The court is pleased to see that over the last year, attorneys have become better versed in the requirements set forth in the FSC General Order and more often jointly prepare and file trial readiness documents. There are two requirements that often continue to elude counsel, however. The first is the requirement that the joint witness list contain not two, but three columns – one with a time estimate for direct examination, one with a time estimate for cross-examination, and one with a time estimate for redirect examination. (See FSC General Order, ¶2(D). ) More often than not, attorneys do not include the third column. The second common omission is a column on the exhibit list setting forth any objections to admission of any of the exhibits. (See FSC General Order, ¶2(H).)
With a master calendar system for assigning personal-injury cases (as well as unlawful detainer and limited jurisdiction cases) to approximately 30 trial courts, trial readiness is particularly important. For example, if a trial court delays a trial to finalize jury instructions with the attorneys, it will be unavailable to handle other parties who report to Department 1 completely ready to commence trial. Attorneys’ continued compliance with the FSC General Order will ensure that trials get assigned to a trial court on the day of trial and the smooth running of the PI Hub/master calendar trial court structure that is in place.
Conclusion The good news is that life in the PI Hub has settled down. The PI Hub
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thinking outside the box with the PI Hub. We encourage lawyers to employ the same kind of innovative thinking in working with each other to reach agreements that streamline litigation, move a case toward resolution, and minimize involvement on the part of the court. When you sit down with opposing counsel for the “Buckley beer,” please raise a glass to the accomplishments of the PI Hub courts and the attorneys who practice in the hub. Judge Jessner was appointed to the Los Angeles Superior Court in 2007 and currently sits in Dept. 93 in a Personal Injury hub court located in the Stanley Mosk Courthouse. Judge Jessner previously was an Assistant Supervising Judge in the Criminal Division, specifically, she was Supervising Judge of the
Mental Health courthouse. She has also been assigned to criminal trial courts. Prior to joining the court, she was an Assistant United States Attorney with the United States Attorney’s Office for the Central District of California (Los Angeles) for approximately 11 years. Judge Jessner started her legal career as a litigation associate with the Los Angeles Office of Sheppard Mullin. In between two tenures at the United States Attorney’s Office, she was in-house counsel for The Boeing Company and an Assistant Inspector General for the Los Angeles Police Commission. She earned a bachelor’s degree from Stanford University and a law degree from Boalt Hall School of Law.
judges are grateful to the bar for bearing with the court as we responded to budget cuts and implemented this innovation. We also appreciate your patience as we have attempted to identify problems and address them. While there is probably no true measure of success that is applicable to this model, almost all PI cases have been assigned to trial courts for trial on the day of trial. Many of us remember that years ago we were assigned a beeper and were “on the beeper” for months and even years waiting for a trial court. Many feared that the PI Hub would result in a similar delay in getting a trial court, along with the attendant uncertainty. That has not been the case. The Los Angeles Superior Court responded to the drastic budget cuts by
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Improving your experience in the trial courts And the consequences of the loss of court reporters in civil cases
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The purpose of this article is to provide information and suggestions to improve your experience in the trial courts. The article will also update readers on issues that may arise as a consequence of the loss of court reporters in civil cases. Smooth trials are usually the product of counsel working well together. Disruptive trials with many disputes and delays required to resolve those disputes may produce unhappy or indifferent jurors. It may be in your client’s interest to work with your opposing counsel in a spirit of cooperation to resolve disputes and bring unresolved disputes to the court’s attention in a timely manner. The trial will be smoother, easier and jurors may be more attentive and focused.
Court reporters Court reporters were no longer provided in civil trials in Los Angeles Superior Court beginning on May 15, 2012. Rules, procedures and orders for court reporters pro tempore are on the court’s Web site. Click on the link entitled “Court Reporter Information” on the home page of the Los Angeles Superior Court Web site. Court reporters who were employed by the Los Angeles Superior Court and others who qualify are placed on an approved list of court reporters. Those reporters must submit an Order Appointing Court Approved Reporter as Official Reporter Pro Tempore, on the form posted on the court’s Web site. For reporters who are not on the approved list of court reporters, the reporter and all counsel must sign and submit a Stipulation and Order to Use Certified Shorthand Reporter, also on a form posted on the court’s Web site. All reporters agree “to comply with the statutes and rules applicable to official reporters pro tempore” and to “follow directions from the Court.” The rules for reporters pro tempore are set forth in the “Superior Court of California, County of Los Angeles, Guide for Official Reporters Pro Tempore,” posted on the court’s Web site. The rules for reporters provide, in part, that the reporters must check in to
the courtroom, set up their equipment, introduce themselves to the clerk and courtroom assistant or bailiff, give the clerk a business card with a CSR number on it and ask the clerk if there are any special procedures or practices of which the reporter should be aware. The reporter must inform herself how the judge handles sidebars and bench conferences and how the judge prefers that the reporter stop proceedings when she cannot follow or understand the witnesses or attorneys. (Guide for Official Reporters Pro Tempore, page 3.) The rules for court reporters also provide that reporters are responsible for bringing whatever special equipment they need to report bench conferences. Many court reporters have their own pocket-sized microphone/amplifier with a headset so they may stay seated and connected to their laptop while the judge and counsel conduct a bench conference. The headset will require an extra-long headset cord. Some electronics stores carry this equipment. (Guide for Official Reporters Pro Tempore, pages 7-8.) Reporters are responsible for bringing with them all the equipment and supplies they will need to perform this work. The Court does not provide any steno paper or other court reporter supplies and will not have any copying equipment available for reporters pro tempore. (Guide for Official Reporters Pro Tempore, page 10.) When queried, some reporters have stated that they have not read the rules and are not familiar with them. On some occasions, reporters have not handled sidebars properly. Some reporters expect the court to provide headphones and microphones so they can report sidebar conferences. Some reporters do not plan how they will report sidebar conferences, waiting until the first sidebar with the court, counsel and jury waiting for the reporter to figure it out. After the first request to approach sidebar was granted, one reporter looked at the judge and asked the judge, in front of the jury, “where is the equipment for the sidebar?” Other reporters have come to sidebar and attempted to report the sidebar
while kneeling on the floor instead of detaching the machine from the tripod and putting the machine on the side bench. One reporter complained when a judge did not have a chair for her to sit in to report a sidebar. Placing a chair in that location in that courtroom would have blocked staff access to a file cabinet and to the judge’s chambers. Such access was necessary for staff to perform their duties and essential in the case of certain emergencies, given the configuration of that courtroom. In jury trials, some reporters have called out instructions to witnesses, attorneys and even the judge, telling them how to proceed. In one recent trial, during voir dire and in front of the jury, the court reporter asked the Court to order the attorneys to identify the jurors with whom they were speaking, by name. In many courts, it is expected that the court reporter will track the names of counsel and the jurors. If you are going to retain a court reporter, you may wish to inquire whether the reporter has read the court reporter information on the Los Angeles Superior Court Web site and is familiar with courtroom procedure.
Real-time reporting Real-time reporting is not required, but may assist the Court in making accurate rulings, searching for testimony, including testimony regarding exhibits, reviewing questions before ruling on objections, highlighting those questions for counsel to view at sidebar, and highlighting and making notes on testimony on issues. If counsel has agreed to provide real-time reporting to the court, counsel may wish to determine whether the reporter you retain is able to log onto the court’s real-time program. Court Reporter Realtime Software Configuration Requirements for the Los Angeles Superior Court are posted on the court’s Web site. Reporters may delay trials and other proceedings if they are unable to log on to real-time. The reporter’s computers may not be properly configured for the court’s real-time JULY 2014
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software. The reporter may not have the proper jack to connect to the jack in the courtroom. In one recent trial, it was nec-
essary to call the court’s tech support personnel three times to assist reporters who were unable to log onto real-time.
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A few real-time reporters have produced very inaccurate scrolling real-time transcripts. Inaccurate scrolling real-time transcripts defeat the purpose of realtime, making searches unreliable because of spelling errors. You may wish to ask the judge if your real-time reporter is producing an accurate real-time scrolling transcript. Many judges know reporters who produce excellent scrolling real-time and virtually flawless transcripts. However, judges cannot recommend any court reporter or firm, and cannot help you locate a real-time reporter.
Status of trial courts There has been a 16 percent reduction in the number of trial courts. The trial courts began with 31 courtrooms throughout the County of Los Angeles. There are now only 25 trial courtrooms. Although these courtrooms are sometimes referred to as personal-injury trial courts, the term is a misnomer. The trial courts handle more than trials from the personal-injury departments. The trial courts also handle asbestos trials, overflow trials from limited civil courts and unlimited independent-calendar courts, unlawful-detainer courts and restrainingorder courts.
Operative complaint and answer The Second Amended General Order – Final Status Conference, Personal-Injury Courts, filed April 4, 2014, does not require the inclusion of the operative complaint and answer in the trial binder. It is suggested that counsel place a copy of the operative complaint and answers in the trial binder or give those documents to the court on the first day of trial, as it may be difficult for the Court to rule on disputed jury instructions and verdict form and conduct a trial without reviewing the operative pleadings.
Trial binders Ensure that your trial binders are complete and well organized. Motions in
Experience continues 48 — The Advocate Magazine
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Experience — continued
limine should be tabbed and indexed by motion, opposition and reply so the trial court can easily navigate those motions. An index of the motions in limine, by title, will assist the clerk in preparing the minute order documenting the rulings on the motions in limine.
Advise the court of potential disputes Many judges appreciate having time to research issues before ruling on them and prefer resolving potential disputes before the trial commences to ensure smooth trial flow. Juries may become frustrated and disinterested if there are numerous breaks and sidebars to resolve issues that could have been resolved before jury selection. Typically, motions in limine do not cover all areas of dispute. Many courts will appreciate it if counsel meet-andconfer and advise the court of all disputes that counsel anticipate may arise during the trial. When assigned to a courtroom, advise the judge of all known potential disputes so the judge may resolve them before voir dire.
Jury instructions and verdict form When drafting jury instructions, it may be helpful to bear in mind that jury instructions provide jurors with the law that applies to the claims and defenses. Jury instructions should not contain argument and rarely should refer to the facts of the case. Caution should be exercised in drafting a jury instruction by taking quotes from a case, as verbatim quotes from cases are disfavored. In negligence per se cases or other cases in which codes or regulations are relevant, the jury instruction should set forth verbatim the applicable language of the code or regulation. Statutory language should be quoted and not paraphrased. Expend the time and effort before the final status conference (FSC) to prepare all of the jury instructions you will need for inclusion in FSC trial binder. In addition to following the local rules, it is helpful to provide on-point case citations with pinpoint or jump cites for cases in support of disputed instructions. One 50 — The Advocate Magazine
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case on point is preferable to string citations. Citations in support of the instructions are usually unnecessary if the disputed special instruction is simply a modification of a CACI instruction. Draft a “bullet proof ” verdict form by using CACI verdict forms. One approach to drafting a special verdict form with interrogatories is to identify each cause of action by heading and insert the CACI verdict form questions for each cause of action under the applicable heading. Many trial courts prefer to settle jury instructions and the verdict form before the jury arrives in the courtroom. Many judges experience frustration when counsel do not focus on the jury instructions until just before closing argument and submit new jury instructions on the morning of closing argument. Ruling on disputed jury instructions or a disputed verdict form when the jury is waiting in the hall is not optimal. The trial judge may not have the time he would normally take to hear argument and perform any legal research on the disputed instructions or verdict form. It is often said that the first thing the appellate lawyers look at is the jury instructions that were given and refused. Avoid potential instructional error by submitting a complete set of jury instructions before the FSC. Meet-and-confer with opposing counsel before you arrive in the trial courtroom on jury instructions to identify agreed and disputed instructions. Your trial notebook should have one section for agreed instructions and one section for disputed instructions. Tear sheets are not necessary in most courts. However, when formatting the second and subsequent page of a multiple page instruction, bear in mind that the clerk will tear off the top part of each page of the instructions.
Exhibits Many judges prefer five three-ring exhibit binders with exhibit tabs that correspond to the exhibit numbers. It is preferable to number each page of the exhibit at the bottom of the page,
starting with page number one for each exhibit. The original exhibit book is for the clerk and the other exhibit books go to the court, the witness stand and all counsel, so documents do not have to be carried back and forth to and from the witness stand. If you know you are going to use a document for impeachment, it is helpful to mark the exhibit with an exhibit number and have an original and four copies of that exhibit. Consider avoiding the larger D-ring binders, as they hold more exhibits but they are difficult for witnesses and others to navigate and heavy to lift during the many times during the trial that exhibit notebooks are handled by the court, court staff, attorneys and witnesses. It is efficient to admit exhibits at the beginning of the plaintiff and defense cases. Counsel are encouraged to stipulate to exhibits that can be admitted without objections. In some courtrooms, the court will request counsel to provide opposing counsel with a list of exhibits to be admitted. Opposing counsel will be requested to identify the exhibits on the list that can be admitted without objection. When discussing a document at trial, it is a best practice to mark the document with an exhibit number and refer to that number so the appellate record reflects the document you are discussing.
Use of depositions at trial Offer to provide the original deposition to the clerk before the case begins or as the witnesses testify, according to the procedure in the courtroom. Many trial judges require that counsel identify the beginning and ending page and line number of the deposition testimony before reading the testimony to impeach a witness or for another purpose. The deposition of an adverse party and persons who were, at the time of the deposition, an officer, director and managing agent, employee, agent, or designee of a party may be used for any purpose. (Code Civ. Proc., § 2025.620(b).) The testimony need not
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be impeaching. The testimony can be read at any time during your case in chief, including before, during or after the adverse party testifies under Evidence Code section 776. Any party may use the video recording of a deposition of a treating or consulting physician or of any expert witness, even if the deponent is available to testify, if the requirements of § 2025.620(d) are met. Depositions may be offered under the rule of completeness. (Code Civ. Proc., § 2025.620; Evid. Code, § 356.) These rules permit imaginative and effective use of depositions at trial.
Use of exhibits in opening statements Preparing your opening statement is time well spent. It has been reported that jurors make up their minds after hearing both opening statements, and, at the conclusion of the case, 80 percent of those jurors vote the way they would have voted at the end of opening statements. The jury should have a clear understanding of your case after your opening statement. Consider using the deposition of an adverse party and key documents in opening statement. Consider gearing trial presentations to both the auditory and visual learners on the jury. It does not cost anything to
use the butcher paper in the courtroom to write a timeline, draw a diagram of the accident or a picture of the product. Meet-and-confer in advance regarding the use of exhibits in opening statements. This will provide the trial court enough time to rule on any disputes without having the jury waiting in the hall or delaying the trial.
Demonstrative evidence Meet-and-confer regarding a plan for demonstrative evidence. Many judges will accept any reasonable plan. Some attorneys agree to a 48-hour notification rule for exhibits, demonstrative evidence and witnesses. In no event should demonstrative evidence or an exhibit be exhibited to the jury before it has been shown to counsel. Allow enough time for the court to rule on any disputes, including whether the demonstrative exhibits should be marked for identification only or should go into the jury room during deliberations.
PowerPoints Attempt to agree on a plan for PowerPoints to be used with witnesses or in opening statements or closing argument. Some lawyers agree to 48-hour disclosure. Any disputes must be resolved
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Schedule a full day of witnesses Given the demand on the dwindling number of trial courtrooms, counsel should schedule enough witnesses to occupy a full trial day.
Closing argument It is important to marshal the evidence for the jury. Remind the jury of critical documents and testimony and explain why it is important. Explain why they should not credit your opponent’s witnesses or his case. Consider using the verdict form during closing argument to explicitly tell the jury how you would like the jury to answer each question.
Conclusion It may be in your client’s best interest to work with opposing counsel to resolve disputes when possible and provide the court with enough time to resolve disputes. Narrowing areas of dispute reduces your tasks in trial. Cooperation is invariably noticed and appreciated by the trial judge. Cooperation and professionalism may create an atmosphere in which jurors are more engaged, receptive and focused on your case. Judge Mary Ann Murphy has served on the Los Angeles Superior Court since 1993 and sits on the bench for a trial court at the Mosk Courthouse. She has moderated the central civil courts’ Best Practices discussions since its inception in December, 2005. She was an associate editor for Weil and Brown, Civil Procedure Before Trial for seven years. She served on the statewide Civil and Small Claims Committee and served four terms on the court’s executive committee. Judge Murphy is actively involved in educating judges and lawyers and is a frequent speaker.
A little ADVANTAGE can help win your case.
Dr. Karen Magarian
by the court before the PowerPoint is exhibited to the jury and without delaying the trial. Ensure that a copy of the PowerPoint is available for the court to rule on any objections.
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Hon. Elizabeth R. Feffer Los Angeles Superior Court
A house for equal justice, from design to completion
Paul Revere Williams
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By Hon. Elizabeth Feffer Los Angeles Superior Court Twenty-six years. That’s how long Los Angeles lacked a downtown courthouse. Just before 6:00 p.m. on March 10, 1933, the Long Beach earthquake struck Southern California. The 6.4 magnitude temblor killed 120 people and remains California’s second-deadliest earthquake. It caused widespread structural failure of unreinforced brick buildings. Downtown Los Angeles suffered little devastation compared to the southeast area of the county. A notable exception was the Los Angeles County Court House. The building, called the Red Sandstone Court House because of its exterior masonry, sustained such heavy damage that it could no longer be used. Constructed in 1888, and opened in 1891, the grand County Court House was located at Temple and Broadway. It was the County’s third courthouse, but first true courthouse, as the previous two buildings had been converted from other uses. Even before the Long Beach earthquake, however, the courthouse, once called the “jewel of Los Angeles,” was dramatically and rapidly deteriorating. On February 10, 1932, the County’s Chief Mechanical Engineer, William Davidson, reported to Supervisor J. Don Mahaffey that a section of stone had broken off of the courthouse’s clock tower, and crashed through the roof of Judge Joseph Sproul’s office. Fortunately, as the accident had occurred at 6:25 a.m., no one was hurt. Davidson also recounted that the previous heavy earthquake had affected several tons of the building’s ornamentation. As remedial safety measures, the County had removed 12 tons of rock and anchored the outside of the building. Despite this, the masonry structure was so compromised that Davidson recommended removing the clock tower. The Board approved and immediately implemented the recommendation. Within a few weeks the clock tower and other ornamentation were removed, in a move called a “clock-ectomy,” and a new roof was installed.
This structural modification was not, however, sufficient. In early April 1932, just a few moments before Superior Judge Lewis Howell Smith was to take the bench in Department 9, a heavy glass skylight fell from the ceiling, and shattered onto the counsel table and chairs. Fortunately, no one was at the counsel table. This incident spurred members of the public to urge the Board of Supervisors to replace the dangerous, deteriorating courthouse. Within a year, the Long Beach earthquake dealt the courthouse its final blow. Dismantling the building was such a large undertaking that the County asked for federal funds to finance the task. Demolition of the structure was not completed until 1936.
Making it do For the next 25 years, Superior and Municipal judges used facilities at multiple locations downtown, including the old Hall of Records, Los Angeles City Hall, Hall of Justice, Brunswig Building (513 North Main), Patriotic Hall (18th and Figueroa), the Lincoln Heights Jail court, the State Building, and the old Municipal Court Building. Judges, the bar, jurors, litigants, and the public patiently endured these makeshift accommodations for two and a half decades, from the dawn of President Franklin Delano Roosevelt’s first term to the twilight of President Dwight David Eisenhower’s last term. Meanwhile, Los Angeles experienced unforeseen population growth. When the Red Sandstone Court House opened in 1891, the population of Los Angeles County was 108,336. When it closed in 1933, the County’s population was 2,380,870. This growth placed even more pressure on the County to provide a permanent solution to the court “housing crisis.” A decade without a courthouse was enough. In 1944, the Board of Supervisors was determined to build a courthouse as soon as possible. A Court House Committee was formed to study the issue and was tasked with estimating the needs of the Court’s
Metropolitan Civil Departments for the next 30 years.
Serving the public The Committee estimated that the County’s population would increase 50 percent over the next 25 years, up to around 5,250,000 by 1970, and noted, “Experience in the past two years shows these estimates are most likely ultraconservative.” The unanticipated population explosion, coupled with a lack of a permanent courthouse, created a court emergency. In 1945, the Chief Justice assigned judges from outside of the county to help carry Los Angeles’ workload. In 1946, five judges from other counties sat as regular working members of the Los Angeles County Superior Court. The Court also relied on commissioners and lawyers serving as judges pro tem. Adding judicial officers did not, however, correct the problem, so in early 1946 the Presiding Judge ordered the Sheriff to utilize emergency powers to provide additional courtrooms. Temporary wartime bungalows used as dormitories by the U.S.O. were quickly converted to house the Probate Department. These measures, too, were insufficient. The number of cases set for trial increased over 50 percent from January 1, 1946 to November 1, 1946, and by the end of that year hearings were set 10 months out. After the war, the County purchased land for a new courthouse, at the intersection of Grand Avenue and Temple Street. The courthouse construction did not come to fruition, however, for several reasons. A 1946 court construction bond measure failed, essentially slowing momentum to a stop for several years. Labor strikes and, later, a steel shortage occasioned by the Korean War, contributed to the delay. There was no consensus on whether there should be separate Municipal Court and Superior Court buildings (the original intent), or a single building to house both courts. Moreover, despite the clear need for a permanent courthouse, the proposed site was not greeted with enthusiasm. JULY 2014
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At the time, it was estimated that 75 percent of the attorneys in the county were based in the downtown area. Attorneys circulated fliers indicating that they were “100-1” against what was called the Grand and Temple site. Some of the controversy was due to the perception that the site was inconvenient. Many lawyers argued that a more appropriate location was the area of Spring and Broadway, between Second and Third Streets. There, a new courthouse would be closer to the downtown law offices. In addition, the suitability of the site itself was questioned. There was, literally, an 80-foot-tall hill on Hill Street. Bunker Hill and the proposed courthouse site would require considerable, costly grading.
Paul Revere (Williams) rides again In 1951, the County Board of Supervisors appointed architects John C. Austin, Paul R. Williams, J.E. (Jess) Stanton, Adrian Wilson, and the firm Austin, Field & Fry to design a “combined courts building.” The County awarded the construction contract to the low bidder, Gust K. Newberg Construction Company. The “Allied Architects,” as they called themselves, were highly regarded and brought decades of experience in designing public and private, residential and commercial, small- and large-scale projects. One of them, Paul Revere Williams, had by then built a 30-year, well-deserved reputation for excellence and hard work, and was considered one of Los Angeles’ very finest architects. Paul Revere Williams was born in Los Angeles on February 18, 1894, to Chester Stanley Williams, Sr., and Lila Williams, who had recently relocated from Memphis, Tennessee. Tragically, Williams lost both parents by the age of four, and he and his older brother, Chester Jr., were placed in separate foster homes. Despite this, 1890s Los Angeles was a vibrant, multi-ethnic environment, in which young Williams thrived. In elementary school, Williams was known as 56 — The Advocate Magazine
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the class artist, and he spent endless hours drawing. Williams enrolled in architecture classes in high school. There, an advisor questioned Williams’ choice in pursuing a career in architecture. Williams recalled later that he had responded, “I had heard of only one Negro architect in America [Booker T. Washington’s son-in-law, William S. Pittman] and I was sure this country could use at least one or two more.” (Paul R. Williams, “If I Were Young Today,” Ebony, August 1963, p. 56.) Williams later cited this challenge as deciding his future. Architecture was no longer an assumed profession borne of a love of drawing. It came, instead, to be a well-thought-out commitment, to be assiduously pursued. Williams pursued an architectural education at the Los Angeles School of Art and the Beaux-Arts Institute of Design, and also sought employment at Los Angeles’ leading architectural firms. At only 20, he won a noted design award, and as he continued to excel in other competitions, other architects took notice. In 1916, Williams was hired by noted architect Reginald D. Johnson. Williams won another architectural competition, and his winning drawings were published in a trade publication. In 1919 Williams was hired by another prominent Los Angeles architect, John C. Austin (Williams’ future collaborator on the County Courthouse project). Austin’s architectural firm provided Williams with valuable experience. As the firm was commercially-oriented, it allowed Williams to design large-scale projects, and to use a wider range of architectural styles. Williams obtained his architect’s license in 1921, struck out on his own in 1922, and became the first black member of the American Institute of Architects (AIA) in 1923. Williams earned a reputation for never settling for less than perfection in his work, and for dignity in his relationships with clients and colleagues. He worked constantly, on a wide range of projects. One of his earlier solo projects, the 28th Street YMCA (1926), is on the National Park Services’ National Register
of Historic Places, and is a City of Los Angeles’ Historical-Cultural Monument. Although very successful, Williams remained mindful that he had to overcome racial prejudice, so he had to “devote as much thought and ingenuity to winning an adequate first hearing as to the execution of the detailed drawings.” (Paul R. Williams, “I Am a Negro,” The American Magazine, July 1937, p. 162.) For example, Williams spent hours learning to draw upside-down, so that a prospective client could be seated on the opposite side of the table, to become engrossed in the drawing and to lose focus on Williams’s skin. Williams later wrote that in these early years, he was determined to “force white people to consider me as an individual rather than as a member of a race,” and that “Occasionally, I encountered irreconcilables who simply refused to give me a hearing, but, on the whole, I have been treated with an amazing fairness.” (Ibid.) Williams also observed that he did not regret the difficulties, because, “I think that I am a far better craftsman today than I would be had my course been free.” (Id. p. 161.) The project that propelled Williams into the category of elite architects was Cordhaven, the Beverly Hills estate Williams designed in 1933 for automobile magnate E.L. Cord. Although Cord lacked formal higher education, he knew and appreciated quality of workmanship and design. Williams later recounted that when Cord telephoned him, and asked to meet immediately at a site in Beverly Hills to discuss building a new home, Williams tried to defer the appointment to the following day. Because Cord insisted, they met later that day at the site. Cord told Williams that he had already discussed plans with a number of other architects, and demanded to know how soon Williams could submit preliminary drawings. Sensing that Cord valued prompt action, Williams answered, “By four o’clock tomorrow afternoon.” Cord said that it was impossible, as every other
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architect had asked for two or three weeks, but he gave Williams the goahead. Williams delivered the preliminary plans by the scheduled hour. He did not tell Cord that he had worked for 22 hours, without sleeping or eating. (Williams, “I Am a Negro,” p. 162.) Williams was hired, and created Cordhaven, a 32,000 square-foot home with 16 bedrooms and 22 bathrooms. By the time of the Los Angeles County Courthouse project two decades later, Williams’ portfolio included noted residential, commercial and public buildings. Williams was involved with approximately 3,000 projects over his career, which spanned from the 1920s through the 1970s. Williams’ vision shaped the growth and look of Los Angeles. Above all, Williams wanted to be judged as an individual, through courage and honest effort.
The architects design “A proper building” Paul R. Williams believed that public buildings should be conservative in design and used that principle when designing the Los Angeles County Courthouse. At the outset of the design phase, the architects pledged to the Board of Supervisors to do their “utmost to design a proper building as to plan
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and purpose; simple and direct in plan, utilitarian and functional in design, of appropriate materials for long life, and at as modest a cost as practical – the architectural style to be in keeping with the latest aesthetic thinking with due consideration of its environment, the climatic conditions, its own purpose and in harmonious keeping in materials and color with other buildings of the Los Angeles Civic Center.” When the architects submitted the preliminary plans in October 1952, they described the courthouse’s design as a “conservative version of contemporary architecture.” The approaches and entrances were designed in “a manner expressing the dignity requisite in a courthouse, the principal embellishment consisting of symbolic structure.” The “symbolic embellishment” that ultimately graced the Grand Avenue and Hill Street elevations of the County Courthouse consists of terra cotta creations by two noted artists. Donal Hood designed the “Justice” sculpture on the Hill Street facade. Albert Stewart created the three “Foundations of the Law” figures on the Grand Avenue side, to represent the legal traditions upon which America was founded. The terra cotta work was manufactured by Gladding McBean at its Lincoln, California, factory. Ground broke on March 26, 1954, at the once-controversial site. Supreme Court Chief Justice Earl Warren was the honored guest at the ceremony, which was also attended by Supervisor Kenneth Hahn and his three-year-old son “Jimmy,” now Judge James Hahn. The formidable grading and excavation project commenced and, ultimately, the 80foot hill was leveled for construction. The actual construction of the building began in 1956. The judges, most of whom had never presided over a courtroom in a permanent courthouse, took an active role in the design of the new building. Many of their changes, such as to the configuration and layout of chambers and jury facilities, were incorporated into the final plans. Perhaps frustrated
by the pace of the process, judges also successfully demanded that a mock courtroom be built, so they and their staff could test how well the proposed courtrooms actually functioned. A fullscale, prototype courtroom was constructed inside of the Hall of Records, at a cost of over $30,000. Still other changes were on the way. Early in the design phase it was decided that there would be a single building, for the Superior Court and Municipal Court. The Superior Court clerks requested rolltop desks. Judges also insisted on cold water fountains in each courtroom, for the benefit of the public. Despite the high cost ($1,241.67 per unit), the water fountains were installed. Other changes occurred over time, after the courthouse opened. It had initially been anticipated that 80 percent of the visitors would pass through the First Street entrance. Therefore, that entrance was designed to be the courthouse’s main entrance. It led into what was then designated as the first floor (now the second floor), with the floor below it (now the first floor) designated as the ground floor. The building was expected to have a life of 50 to 75 years, but upon its completion, the architects publicly stated that they had designed the building to last 250 years.
Quarter-century wait ends When the $24 million Los Angeles County Courthouse was dedicated on October 31, 1958, it was hailed as the most important building constructed in California in the previous 50 years. It opened for public business at 9:00 a.m. on January 5, 1959. At 850,000 square feet, it was (and remains) the largest courthouse in the United States. Inside were 110 courtrooms, allocated 60/40 for Superior and Municipal Court. The entrances featured mosaic tile columns, and marble floors that were quarried in Italy and polished in Vermont. Eastern White Oak panels graced each courtroom. The courthouse also contained eight large courtrooms, with prominent slabs
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of Tennessee Rosemont marble on the wall behind each bench. These courtrooms would include the Presiding Judge’s courtroom and chambers; and the headquarters of the various court departments, such as “Master Calendar,” “Domestic Relations,” and Probate. Because the courthouse was, after all, located in Los Angeles County, the other large courtrooms were to accommodate what we now call “high profile” cases. The paternity trials of Charlie Chaplin in the 1940s were widely (and often sensationally) reported by the press. Therefore, the architects were specifically asked to include large courtrooms “to be used in cases where there is a large public interest.”
Modern functional elements included full air conditioning throughout the building; and fire-retardant, fiberglassbacked burlap on the back wall of each courtroom, to serve as acoustical paneling. Underground tunnels connected the courthouse to other civic center buildings, and remain in use today.
Fulfillment of principles of justice The forward-thinking architects, engineers, and members of the Board of Supervisors were correct. Now, more than half a century after the County Courthouse’s dedication, the controversies over the site, the 80-foot-tall hill, and construction delays, have all essentially been forgotten.
Supervisor Kenneth Hahn noted that the courthouse was for all to receive a fair trial and equal justice. If the courthouse did not perform or satisfy the basic American need for liberty and freedom, Supervisor Hahn said, it would be worthless, as what goes on inside the building is more important than the building itself. A free and independent judiciary, he said, is needed for America to continue to be the “land of the free and the home of the brave.”
Sources and Acknowledgements The Paul Revere Williams Project, at the Art Museum at the University of Memphis. Los Angeles Superior Court Planning and Research Unit. Hudson, Karen E. (with David Gebbard), Paul R. Williams, Architect (1993). Williams, Paul R., “I Am a Negro,” The American Magazine, Vol. CXXIV, No. 1, July 1937, p. 59. Williams, Paul R., “If I Were Young Today,” Ebony, Vol. XVIII, August 1963, p. 56.
Judge Elizabeth R. Feffer has presided over a civil trial courtroom at the Stanley Mosk Courthouse in downtown Los Angeles since 2012. Judge Feffer was appointed to the Los Angeles Superior Court in 2007.
This article originally ran in “Gavel to Gavel” in Spring 2013.
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Overcoming emotional hurdles in mediation Preparing your client for a productive mediation Two young siblings are quarreling over the only orange left in the house. They both want it, and they refuse to compromise. Their parent, trying to relax in the other room, comes into the kitchen with a mission...to restore peace! Grabbing a knife out of the drawer, the parent cuts the orange in half and triumphantly leaves the kitchen, and the arguing kids, behind. Later in the afternoon, the parent returns to the kitchen to find a mess on the counter. Amidst the clutter is the left-over rind of half an orange, which had been eaten, and the other half of the orange – uneaten – with the rind removed. The parent is confused – what happened? The children provided a simple explanation. One wanted the orange for a snack and the other wanted to use the rind for a recipe. What went wrong? Although it was clear what they were fighting over, the parent failed to ask what the argument was truly about. By quickly cutting off the conversation – and cutting the orange in half – the parent reached a compromise that satisfied her need for an expedient resolution but failed to satisfactorily address the needs of either of the quarreling siblings. 64 — The Advocate Magazine
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The orange story is a commonly told parable about the importance of understanding the needs of each party before one can arrive at an effective solution. Because personal-injury cases involve trauma, pain and emotional upheaval, putting a price on the injury often feels incongruous and unsatisfying to the injured party, making settlement difficult. The concerns and needs that the personal-injury plaintiff brings to the mediation process are not always as simple as calculating an appropriate monetary valuation. Emotions, hidden objectives, misunderstanding, inflated expectations and lack of familiarity with the legal process may create emotional barriers that can be obstacles to a satisfying, reasonable and fair resolution. Mindful client preparation in advance of the mediation session can be an invaluable tool in helping your client to overcome these emotional barriers and negotiate with success during the session. Following are several common barriers to resolution and the things you can do in preparation for, and then during,
the mediation to help your client make the most of the process.
Manage expectations about the negotiating process In most areas of law, outside of personal injury, a monetary award provides direct and complete replacement of what was lost. The loss is concrete and easy to calculate. If A loans B $500, and that debt is not repaid, A seeks as compensation the return of the $500, plus any interest due under the loan. If one damages another’s personal property, the law provides compensation by requiring the return of money necessary to repair or replace the damaged item. Most forms of legal compensation are, ideally, commensurate with the harm or damage suffered. Personal-injury suits seek financial compensation for damage and harm that cannot be quantified. Nothing can truly compensate a parent who has lost a child, or a person who suffers a disabling and catastrophic injury. Ask a widowed spouse, an amputee, or a person dying of cancer from asbestos exposure what amount of money would truly compensate them for their loss or pain. The answer is, obviously, no amount. This principle applies as well in smaller, less catastrophic injury cases. Personal-injury mediations evoke strong emotions precisely because harm to one’s physical and emotional health and well-being is subjective and cannot be accurately measured. In mediation, the personal-injury plaintiff is asked to place a dollar value on their suffering, loss or pain. This artificial concept is palatable − until the defense opens mediation negotiations, as is often the case, with a low-ball offer. To the person who has suffered, this feels callous, insensitive, and mean spirited. It is not surprising that the injured party takes offense and asks, “Is that what they think all of my pain and suffering is worth?” Prepare your client for this part of the process in advance. It is, after all, a negotiation. Explain to the client that the only number that matters is the one they hear at the end of the session, not the one at the outset. You and the mediator
understand this, but often the client does not. Getting over that initial shock and disappointment can be difficult if one is not prepared to view it as a stage in the process, rather than an insensitive devaluation of his or her loss.
Familiarize the client with the selected mediator Although you will probably be the one to select a mediator, it may be helpful to include the client in the process. Once you have made the selection, share your thoughts as to why you chose the mediator. Tell your client about the mediator in advance of the hearing and explain why you thought he or she would be a good fit. If the mediator has a Web site, bio or resume that you can send to the client, do so. The more the client knows about the mediator in advance, the easier it will be to connect when the parties get together. If you have a particularly emotional client, select a mediator who is sympathetic and understands and relates well with people – someone who is patient and listens well. The mediation process should allow the plaintiff to express their emotions. Exposed emotional barriers are easier to conquer than those that are hidden from the process and its participants. However, ultimately you must select someone who you know can eventually redirect that emotion and help the client focus on the issues at hand. On occasion, I will learn from a lawyer in advance that the client is apprehensive about the mediation. In those situations, I sometimes offer to give the client a phone call in advance. Often an informal introduction over the telephone in advance is enough to ease the client’s nerves and offer the reassurance they need to comfortably participate in the process. Recently, plaintiff ’s counsel in a particularly difficult case advised me that his client wanted to cancel the mediation. His client was panicking as the mediation date got closer, but he wasn’t sure why. I offered to give her a call to talk to her about it. After establishing some rapport, she revealed to me that she was a recluse
who hadn’t left her apartment, been in public or even gone outside in several years. She wasn’t afraid of the mediation itself; it was the thought of leaving her apartment that terrified her. After several conversations over the course of the next couple of days, she eventually agreed to attend, and, to everyone’s surprise, she actually appeared for the mediation.
Discuss the risks of litigation The mediation process is often scary and threatening to the layperson. There are always risks in litigation. You can be sure that the mediator will point those out to your client at some point during the mediation session. Those risks should be discussed candidly before the mediation begins so that the discussion, when it occurs, doesn’t come as a shock. A client who feels blindsided by unanticipated risks will feel a loss of control, and begin to “dig his heels in” to protect his position. That is a natural reaction. All litigation is risky, and often evidence is uncovered in discovery that reveals complications that were not anticipated when the case began. The mediation is not a good time for genuine problems of proof to be revealed to the client for the first time. If those problems are first disclosed to the client by the mediator, the revelation may undermine the client’s confidence in the lawyer – especially if the issues haven’t been discussed prior to the mediation. A candid discussion about difficulties with the law or evidence must take place prior to the mediation session in order for the client, and you, to be ready to deal with them during negotiations. A client who is aware in advance of the weaknesses in his case will be better equipped to consider and evaluate them during the mediation process.
Explain the economics of the litigation Personal-injury clients are sometimes under the mistaken impression that a contingency fee arrangement is a guaranteed win-win proposition for them. Some believe that all they have to do is show up when asked and they will receive their share of any money recovered. JULY 2014
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Litigation is expensive. On smaller cases, the truth is that the litigation costs can sometimes exceed the value of the case itself. Clients must understand this before they mediate. Even valuable cases can be extremely expensive to litigate. Clients must come into the mediation with realistic ideas about the cost of proceeding with the litigation. That is a discussion that you can anticipate the mediator will have with you and your client. Your client should be fully aware of these issues ahead of time. As a trial judge, it was not unusual to have parties appear on the day of trial with no idea that a § 998 offer had been served on them, or that they could be held liable for defense costs and attorneys’ fees even if the verdict was in their favor. If served with a § 998 offer, your client has an additional risk in going forward with the trial. You not only have an ethical obligation to inform them of the statutory offer, but you also must explain the risk that it presents to them. Failure to do so borders on malpractice. In a recent trip-and-fall case, the plaintiff at mediation was offered, and declined, a settlement offer of over a half million dollars. There were significantly lower § 998 offers on the table from each of the two defendants. The matter went
instead to trial. The jury returned a combined six-figure verdict against both defendants. Nevertheless, neither party’s share of liability exceeded the amount of the § 998 offers. After paying each defendant’s costs and fees, as well as her own costs, the plaintiff ended up recovering nothing. Trials are risky. The specific risks should be explained to the client in advance of the mediation so she has the information and tools to take those risks into account in appropriately evaluating her case.
Manage external influences Lofty hopes are understandable. However, unrealistic expectations are a recipe for disappointment. Do everything you can to avoid creating them. If you have been upfront with the client and dealt with each of the issues discussed above, expectations will be manageable. However, exceptional headline-grabbing jury verdicts publicized in the media, Larry H. Parker advertisements, uninformed opinions from friends or family members, and other outside sources can create unrealistic expectations. Endeavor to manage those expectations in advance by addressing concerns, correcting misinformation and creating realistic goals.
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Discuss legal barriers and factual weakness A party who enters the mediation with misconceptions about potential legal hurdles in their case will be equally set up for disappointment. In a recent scenario, the plaintiff, “Trevor,” was a single man in his mid-60s who tripped and fell while walking in a commercial parking lot. Instead of walking on the pavement, he took a shortcut through an island full of shrubs and bushes. As the mediation began, it became clear that Trevor mistakenly believed the landowner was legally responsible for his injury, merely because the injury occurred on the owner’s property. This is a common misconception. Trevor had suffered fairly severe injuries, so his medical expenses, pain and suffering were substantial. Trevor’s attorney had not dispelled him of this notion in advance. Naturally, he came into the mediation with highly unrealistic expectations. The landowner was willing to negotiate a settlement, however, the amount offered was only a fraction of what Trevor expected, as the landowner believed there was virtually no evidence of liability. When the disappointing offer was communicated to Trevor, so was the landowner’s position on liability. This created barriers in the mediation dynamic that made resolution extremely difficult. It discredited Trevor’s attorney, who had never given him a reasoned assessment of the evidence supporting liability in advance of the mediation. It put the lawyer in an awkward and ineffective position – she could either try to save face and maintain her untenable position or else admit to the client, for the first time at the mediation, that his case had serious factual weaknesses. Neither option was conducive to achieving a resolution at the mediation session. This problem was entirely preventable. A pre-mediation discussion about the requirements of fault and the concept of comparative liability would have served Trevor well and prepared him for the push and pull of the mediation process.
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Helping your client during the mediation session
hint at the range of acceptable resolutions without revealing your position.
Often a mediator will appear to take a position advocated by your opponent. Indeed, sometimes it will be more than just an appearance. Don’t win an argument and lose an opportunity. If you simply say you don’t agree, but are willing to listen to what comes next, that is sufficient to keep the process going. It is also an adequate signal to the mediator that what follows may not be acceptable. If you insist on proving your opponent wrong, you risk awakening a fruitless debate and jeopardizing the mediation. Here are some tips to increase the prospect of success. Use the mediator. If, despite all of your efforts to prepare your client, he or she still has unrealistic expectations, let the mediator deflate them. If your client believes that “any fair person” would have to view the facts in a certain way, let the mediator offer another view. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction. The mediator can float “trial balloons,” convey positions you would want to disclaim, and
And finally... Be flexible. Listen to your client. Be willing to adjust your expectations in either direction as information is exchanged. The benefit of settling a case at mediation is that the parties choose their own resolution. When it works, there really is no better way to resolve any legal dispute. Hon. Michael A. Latin (Ret.) is a mediator and arbitrator with ADR Services, Inc. in Los Angeles. He specializes in complex litigated disputes in areas including insurance coverage and bad faith, entertainment, labor and employment, personal injury, healthcare and professional liability. He was selected as one of “California’s Top 50 Neutrals” by the Daily Journal in 2012 and 2013. He served as a Los Angeles Superior Court Judge from 2003-2011 and as the Site Judge of the Van Nuys Civil Courthouse from 2008-2011. He graduated from Loyola Law School in Los Angeles and has a B.A. in Experimental Psychology from UCSB.
In contrast, in another case, a deaf couple walked their small dog on a leash into a pet store to shop. As they entered the store, their dog was suddenly attacked and killed by an unleashed pit bull that was in a store-supervised dogtraining class. The mauling, which was horrific, was caught on video. Had the attorney not prepared his clients in advance, this might have appeared to them to be a perfect case. Unfortunately, there is no cause of action for wrongful death of a pet, and Dillon v. Legg doesn’t extend to emotional-distress damages for non-human “relatives.” The plaintiffs’ attorney, however, did a terrific job in explaining the legal obstacles to his clients in advance of the mediation. As a result, the clients’ expectations were realistic and their objectives were achieved. If there are legal hurdles that might be difficult to overcome, make sure your client is aware of them ahead of time. An honest and candid conversation about potential legal obstacles in advance of the mediation will prepare the client to deal honestly and effectively with the problems in his or her case and will enable them to more easily accept a realistic resolution.
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Social-media discovery during the social-media boom The challenge of finding relevant information
Chief Magistrate Judge Suzanne H. Segal
Are you on Facebook? Are your kids, relatives, neighbors, schools and employers on Facebook? If you are like 1.2 billion people, clearly the answer is “yes!” It is equally likely that you use Instagram or SnapChat to communicate daily with friends and family. Nearly 300 million people use LinkedIn 70 — The Advocate Magazine
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to share their resume and related professional information. More than 241 million individuals and companies are “tweeting” away on Twitter. The use of social media has grown and is growing exponentially, even while you were reading the paragraph above. What does the rapidly expanding use of social media, in a
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multitude of formats, mean for civil discovery? This article will describe how courts are attempting to draw some lines for litigants about the discoverability of social media. Because the use of social media as evidence in litigation is relatively new, courts are taking a variety of approaches to the challenges presented by socialmedia discovery. Federal Rule of Civil Procedure 26(b)(1) generally provides that parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” This rule broadly means that relevant information posted on social networking sites is discoverable, like any other relevant information. However, due to the volume of information stored, the way sites are operated and the possibility of shared ownership of information, problems in social-media discovery are abundant.
What is relevant information? Like all digital evidence, one of the most difficult challenges presented by social media is the volume of data. If an individual has maintained a Facebook account for a few years, thousands, if not millions, of “pages” of information are a realistic possibility. Presented with the unique challenges of social media, how does a court balance the policy favoring broad discovery with the requirement that a party need only produce responsive, relevant information? The decisions below have attempted to answer that question. A case that contains a frequently cited quotation regarding social-media evidence is Thompkins v. Detroit Metro Airport (E.D. Mich. 2012) 278 F.R.D. 287. The Thompkins court summarized the problem well: [M]aterial posted on a ‘private’ Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. 72 — The Advocate Magazine
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Nevertheless, the [requesting party] does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law]. . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the [requesting party] would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff ’s Facebook account. (Id. at 288.) Of course, the notion of what is “relevant” in the social-media context can be difficult to answer. For example, in an employment case where the plaintiff alleges that she was depressed because of the way her employer treated her, is a picture of the plaintiff smiling or frowning posted to a socialmedia account “relevant”? Is the fact that the plaintiff is using social media at all relevant? One of the earliest socialmedia decisions was E.E.O.C. v. Simply Storage Management, LLC (S.D. Ind. 2010) 270 F.R.D. 430, which permitted a very broad discovery request for information from social-media sites. The court required the plaintiff to produce any communications from social-networking sites that “reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.” (Id. at 436.) But when this identical discovery request was made in Mailhoit v. Home Depot (C.D. Cal. 2012) 285 F.R.D. 566, the court found that, under the circumstances of that particular case, the request was not sufficiently tailored to place the responding party on notice of what was requested. The test for whether or not a discovery request is sufficiently tailored is whether the
request places a responding party upon “reasonable notice” of what is called for and what is not. (Id. at 570.) Accordingly, the Mailhoit court permitted discovery only of communications between plaintiff and defendant’s employees that specifically related to plaintiff ’s employment. (Id. at 573.) Many courts have attempted to narrow the discovery requests to focus on information that is relevant to the claims and defenses raised in the particular action. These courts are wary of requiring parties to open their entire social-media history just because they are litigants in a lawsuit, even when the producing party is the plaintiff. (See, e.g., Giacchetto v. Patchogue-Medford Union Free School District (E.D. N.Y. 2013) 293 F.R.D. 112, 115 [“a plaintiff ’s entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages”]; Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. Jan. 9, 2007) 2007 WL 119149 at *7 [“Ordering . . . release of all of the private email messages on Plaintiff ’s Myspace.com internet account would allow Defendants to cast too wide a net for any information that might be relevant and discoverable.”]) Accordingly, some courts attempt to formulate a limiting construction on which social-media communications are properly discoverable. (Holter v. Wells Fargo and Co. (D. Minn. 2011) 281 F.R.D. 340, 344 [where plaintiff places her mental disability and emotional state at issue, defendant is entitled to receive, among other things, any communications from the social-media Web sites that reveal or refer “to any events that could reasonably be expected to produce a significant emotion, feeling, or mental state”]; Robinson v. Jones Lang LaSalle Ams., Inc. (D. Or. Aug. 29, 2012) 2012 WL 3763545 at *2 [plaintiff must produce “all online social-media communications” that “reveal, refer or relate to . . . any significant emotion,
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feeling or mental state allegedly caused by defendant’s conduct.”]; Sourdiff v. Texas Roadhouse Holdings, LLC (N.D. N.Y Oct. 24, 2011) 2011 WL 7560647 at *1, [plaintiff must provide “any photographs, profile information, postings, messages, comments and status updates and/or other posts, including deleted content are in any way related to plaintiff ’s emotional or mental state, her physical condition, activity level, employment, this litigation and the injuries and damages claimed by plaintiffs in their complaint in this action”].) In at least two cases, the court conducted an in camera review to decide if the information on social-media sites was relevant. In Bass v. Miss Porter’s School (D. Conn. Oct. 27. 2009) 2009 WL 3724968 at *1, the court conducted an in camera review to compare pages of plaintiff ’s Facebook account that plaintiff withheld against the pages that plaintiff produced. The Court found that some of the withheld communications were “clearly relevant to this action” and ordered plaintiff to produce all withheld Facebook documents, admonishing that “relevance of the content of Plaintiff ’s Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff ’s own determination of what may be ‘reasonably calculated to lead to the discovery of admissible evidence.’” In contrast, although the court in Offenback v. LM Bowman, Inc. (M.D. Pa. June 22, 2011) 2011 WL 2491371, conducted an in camera review of plaintiff ’s Facebook and MySpace accounts, it found that most of the communications were “routine communications with family and friends” and ordered production of only a handful of selected communications. Unlike the Bass court, the Offenback court also expressed “some confusion about why the parties required the Court’s assistance in deciding what information within Plaintiff ’s Facebook account is responsive to 74 — The Advocate Magazine
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Defendants’ discovery requests” because “Plaintiff is the party with the greatest familiarity with his own Facebook account . . . .” (Id. at n.3.) Other courts have permitted broader discovery, without narrowing the requests and without conducting in camera review. In Thompson v. Autoliv ASP, Inc. (D. Nev. June 20, 2012) 2012 WL 2342928 at *5, the court ordered plaintiff to provide all the information on her social-media sites to defendant’s counsel on an electronic storage device. However, even with this broad discovery scope, the court ordered defense counsel not to share the information and to return the storage device to plaintiff while identifying relevant information. (Id.; see also Ingrid & Isabel, LLC v. Baby Be Mine, Inc. (N.D. Cal. April 1, 2014) 2014 WL 1338480 at *10 [ordering that plaintiff ’s expert receive access to all of defendant’s accounts, including Facebook and Twitter, because of court’s serious concern that defendants did not produce responsive documents].) Finally, a few courts have denied access to social-media information altogether. (Salvato v. Miley (M.D. Fla. June 11, 2013) 2013 WL 2712206 at *2 [denying plaintiff ’s request for production of all statements that defendant made on social-networking Web sites about the incident at issue because the “mere hope” that such discovery might lead to relevant evidence is not a sufficient basis to require defendant to provide “open access” to his private communications]; Potts v. Dollar Tree Stores, Inc. (M.D. Tenn. March 20, 2013) 2013 WL 1176504 at *3, [denying socialmedia discovery because defendant failed to present any evidence showing that the plaintiff ’s social media would contain relevant information]; Kennedy v. Contract Pharmacal Corp. (E.D. N.Y. May 13, 2013) 2013 WL 1966219 at *2 [same].) Beyond deciding what social-media information is discoverable, courts must address the burden of discovery. Voluminous information usually inspires
objections based on the burden caused by collection, review and production. The burden of production is typically related to cost issues. However, because social-media sites typically provide account holders with the means to download their information easily, the cost of retrieving and downloading the information may not be a problem, particularly for a narrowly tailored request. For example, with just a few clicks you can download your information from Facebook as well as Twitter. (See Twitter Help Center, https://support.twitter.com/ articles/20170160-downloading-yourtwitter-archive#); Facebook Help Center, https://www.facebook.com/ help/131112897028467). The effort and cost appear minimal, at least when a single account is involved. But as is true with all electronic discovery, the broader the request, the greater the cost. Courts may reject requests for cost shifting when the requesting party has not adequately demonstrated the burden. (See German v. Micro Electronics, Inc. (S.D. Ohio Jan. 11, 2013) 2013 WL 143377 at *7-8 [rejecting request for cost shifting for plaintiff ’s production of online journals, blogs and social-media/networking Web sites].) Ultimately, the cost battles may arise from the cost of counsel’s review of the material, rather than the collection and production of socialmedia information. It is fair to conclude that the majority of courts, applying traditional notions of relevance and reasonable notice, have required social-media requests to be specific and give appropriate notice to the responding party. The requests must target the type of information that would be probative of the claims and defenses raised in that particular case.
Who has “possession, custody or control” over the information? Rule 34 provides that a responding party must produce information within
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Is there a privacy right in social media? Asserting privacy interests in social media has not been a successful tactic in most cases, at least in federal court. The court in Reid v. Ingerman Smith LLP 76 — The Advocate Magazine
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(E.D. N.Y Dec. 27, 2012) 2012 WL 6720752 observed that “legitimate expectations of privacy may be lower in e-mails or other Internet communications,” and certainly this view would extend to social-media sites shared with multiple “friends.” It is somewhat inconsistent to acknowledge that you have more than 1,000 “friends” and yet argue that you have an expectation of privacy in your Facebook posts. In Simply Storage, the court concluded that privacy concerns are limited on social-networking sites because individuals have already shared information with others through private messages or with a larger number of people through postings. (270 F.R.D. at 437.) Courts also recognize that any lingering privacy concerns may be dealt with through appropriate protective orders. (Ibid.) Even in cases where the California constitutional right to privacy is raised, it is unclear whether discovery of information from social-networking sites will be precluded. Under California law, the right to privacy is not absolute. (See TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 339.) Although Federal Rule of Evidence 501 requires that state privilege law applies in diversity jurisdiction cases, federal courts have not found that the California right to privacy necessarily bars production of social-media posts. (Mintz, 885 F. Supp. 2d at 995.) In federal-question cases, the court will “take into account state privileges as a matter of comity where it can do so ‘at no substantial cost to federal substantive and procedural policy.’” (ASIS Internet Servs. v. Active Response Group (N.D. Cal. 2008) 2008 WL 2129417 at *2 [even though customers have some privacy interest in e-mail addresses, disclosure of e-mail address lists was ordered]; see also Oakes v. Halvorsen Marine Ltd. (C.D. Cal. 1998) 179 F.R.D. 281, 284 [where a party’s need for information outweighs privacy interests, production of private information may be ordered].) Thus, there are
no guarantees that information stored in social-media sites will remain private after litigation begins, even if maintained under a confidential setting.
Discovery of social media? A work in progress Problems raised by discovery of social media are an extension of the now historical problems faced by litigants in the broader world of e-discovery. As usual, courts are “reacting” to the problem and somewhat behind the development of the technology in their reactions. Courts will continue to struggle to adapt traditional discovery principles – relevance, burdensomeness, and cost – to the new and evolving world of social media. Judge Segal wishes to recognize and thank her Spring 2014 extern, Angela Davtyan, a law student at Southwestern Law School, for her excellent research and other contributions to this article.
Judge Suzanne H. Segal was appointed a United States Magistrate Judge for the Central District of California on July 31, 2002. In 2012, the Court appointed Judge Segal as the Chief Magistrate Judge for the Central District and she will serve in this position for a four-year term. In her role as Chief, Judge Segal provides leadership to the District’s 25 Magistrate Judges, and represents the Magistrate Judges both as an ex officio member of all Central District court committees and as the Central District’s representative to the Executive Board of Magistrate Judges for the Ninth Circuit. Before taking the bench, Judge Segal served as an Assistant United States Attorney in the Civil Division of the Los Angeles U.S. Attorney’s Office, from 1990 to 2002. Prior to serving in the U.S. Attorney’s Office, Judge Segal was an associate at Dewey, Ballantine in Los Angeles.
the party’s “possession, custody or control.” (See Soto v. City of Concord (N.D. Cal. 1995) 162 F.R.D. 603, 619 [“The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.”]) However, social media raises confusing questions regarding who has “possession, custody or control” over the information. While courts may permit parties to obtain relevant socialmedia content from each other, the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712 (part of the Electronic Communications Privacy Act of 1986), prohibits litigants from obtaining social-media content directly from a provider. (See Crispin v. Christian Audigier, Inc. (C.D. Cal. 2010) 717 F. Supp. 2d 965, 971-972; Mintz v. Mark Bartelstein & Assocs., Inc. (C.D. Cal. 2012) 885 F. Supp. 2d 987, 993.) However, the SCA permits a provider to divulge subscriber records and related information. (Id. at 992.) Content, however, may only be disclosed by a party to the litigation who controls the socialmedia account. The sharing of a digital device or social-media account between two parties presents a difficult issue. For example, if an employee uses her employer’s computer to send e-mails or to post information on a social-networking site, then it is unclear whether the employee has complete control over the information, especially if the employee has signed an agreement giving the employer the right to review messages, e-mails, etc. sent on a company device. (See Holmes v. Petrovich Development Company, LLC (2011) 191 Cal.App.4th 1047, 1068-9 [employer could access employee e-mails to attorney that were sent from employer’s computer].)
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An Ideal Mentor
Six tips from Benjamin Franklin for lawyers
78 — The Advocate Magazine
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Mentoring should be a mission for judges and lawyers. Nothing can be more satisfying than helping a law student or young lawyer learn the ropes of being in court, handling evidence, and dealing with lawyers, judges and juries. For the past 14 years, I have selected five externs from different law schools to work with me in my unlimited civil court in the Stanley Mosk Courthouse. They research motions, observe trials, and assist me in presenting educational seminars for judges, lawyers and other law students. Giving back through education is something that both helps the law students and enriches me, by allowing me to recall and share the many lessons I have received from countless great lawyers and judges who have assisted me along the way. What if we don’t have mentors to teach us in person? What if a young lawyer or law student hasn’t found that perfect mentor to guide him or her? This question produced a summer project where I have assigned my externs to pick a person from history whose life and words could inspire them; words so illuminating and relevant that they could be brought into court and used to draft trial strategy and to help craft closing arguments. Even if the precise words weren’t used, the spirit of these “ideal mentors” would serve as an inspiration to future trial lawyers when the need arose. My inspiration for this project was Charlie Chaplin, the silent comedian, whose work embodied all of the qualities I emulate: spirited, creative, and always possessed with a unique perspective of the world with which people could identify. I have spent countless hours watching his films at the Silent Movie Theater in Los Angeles and have read everything I could about him. When I was ten years old, I wrote him a fan letter and included a number of drawings I had done of him from his films. I didn’t have his address, so I simply put a stamp on an envelope addressed to Charlie Chaplin, Geneva, Switzerland. About a month later, I received a kind response from Charlie Chaplin on his stationery in his handwriting, thanking me for the letter and telling me how much he admired my drawings.
That letter has stayed close to me to this day, inspiring me to strive for Charlie Chaplin’s creative brilliance, his artistic integrity, and his ability to move others. The first of the ideal mentors selected, Benjamin Franklin, has every quality a lawyer should have. He was a hard worker: a successful businessman who retired at 42. He was a tireless writer, constantly articulating his unique view of life. He would often write two editorials on the same topic, each with a pseudonym, each taking the opposite position on an issue. This is exactly what a good lawyer should do, always be prepared to argue and understand both sides of an issue. Even though he barely had a grade school education, he didn’t allow his lack of special training to stop him. He was an inventor, creating what we now know as the Franklin stove, bifocals and the lightning rod. He is also credited with creating the country’s first public library, post office, fire department, police station, insurance company, and hospital. Benjamin Franklin also maintained his sense of humor and interest in all things. Whether contributing to drafts of the Declaration of Independence, publishing books and articles or even giving advice to a young man about the advantages of selecting an older mistress over a younger one, Franklin was fully engaged in every aspect of life. This interest in every aspect of human life was seen in his views on everyday issues about the art of living, to breathing life through carefully crafting words to ensure that our country’s foundational beliefs became the law of the land. His approach can be seen in a number of successful lawyers who can argue in court sophisticated legal issues yet still show an interest in the lives of the people he or she represents as well as the jurors who make the final decisions. Among the hundreds of quotes from Franklin that could have served as vital lessons, the following are six that can be readily applied for trial lawyers.
Lesson One: Learn from your harshest critics “Love your enemies, for they tell you your faults.” This is a quote from Poor
Richard’s Almanac which Franklin published in 1732. It is filled with helpful wisdom and maxims spoken through the words of a fictional character he created named Poor Richard Saunders. This maxim differs from most wise sayings because it appears to speak in contradictions. President Clinton would quote this Franklin phrase on more than one occasion during the scandal involving Monica Lewinsky that would lead to his impeachment hearings. President Clinton acknowledged that we can all learn from our harshest critics. Our friends and flatterers tell us what we want to hear but give little insight into how the world evaluates us. Our friends might hint at our flaws or simply ignore the flaws; what you would expect a good friend to do. Our enemies and critics have no such filter. What they say, like it or not, we can learn from. In a courtroom setting, what I mean by “enemies” is usually the opposing side, a judge who rules against you, or an appellate court that agrees with your opponent. If lawyers could take a moment and try to find the lesson learned from adverse rulings, they could learn more than they could from their friends. In that sense, often our enemies or detractors can do us a favor because they keep us sensitized to our weaknesses and allow us to learn from our mistakes.
Lesson Two: Focus on the jurors’ values Poor Richard has some cogent views about education: “Tell me and I forget. Teach me and I remember. Involve me and I learn.” How we involve jurors and get them to understand our points is a goal that Benjamin Franklin understood. In our careers, the best lawyers are those who actively involve the jurors in his or her cases. Focusing on that last phrase, “involve me and I learn,” reveals a clue. In traditional learning, this translates to dividing large groups into break-out groups of individuals who work together, solve problems and, thus, teach themselves. In court, of course, lawyers are limited by the constraints of the courtroom where words and visual aids have to give the jury the tools to teach each other in the jury room. A lawyer can help JULY 2014
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the jury by employing a lesson from Aristotle’s Rhetoric. A classic speech is composed of logos or logical arguments, pathos or an emotional appeal (limited by Evid.Code, § 352), and ethos or core values that establish the speaker’s credibility. Those core societal values reflect general principles with which all jurors can agree upon. Here are two examples: we all deserve to live in a safe environment and we should expect our government not to unreasonably infringe upon our rights; these are values that establish your case’s credibility as well as your own credibility. By focusing on ethos, you are creating for the jury a reason to believe your position because you are reflecting the jurors’ values. These ethos values are usually incorporated into a theme and can be a phrase or a word. A perfect example of ethos in politics was the iconic red/blue poster in 2008 of Barack Obama along with the word “hope.” This wasn’t simply a promise of a politician, this was a value that each of us considers important: hope. Franklin teaches us that we must involve our jurors by focusing on the core values of a case so that they will become involved and be motivated to uphold those values.
Lesson Three: Always focus on your clients’ interests
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The third lesson is also taken from Poor Richard’s Almanac: “A lean judgment is better than a fat award.” So often people fight over a judgment that is ultimately worthless or worse, prolong litigation until it resembles a modern-day Bleak House. The concept of a pyrrhic victory is something I see in court all the time but lawyers often only grasp the devastating effect after the fact. So often I see the furious work that lawyers expend for a paper-thin judgment which is worthless for anyone except perhaps an accountant desperate for losses at tax time. Settle early. Carefully consider the expenses of winning a case versus settling a case and stopping the hemorrhaging of litigation expenses. We don’t live in a
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Mentors — continued
loser pays litigation world like England. In our country, generally the winner and the loser both pay, sometimes dearly, for victory and defeat. Make sure the price of litigation is worth it.
Lesson Four: Reputation is everything On the subject of reputation, Poor Richard states: “It takes many good deeds to build a good reputation, and only one bad one to lose it.” Our reputations travel with us, and many lawyers acquire clients and originate business for their law firms based solely on their reputations. The better your reputation, the more your phone will ring with business. However, one bad decision can destroy a lawyer’s reputation forever and take everything away that he or she has worked so hard to build. When I speak of reputation, I am talking about a lawyer’s own actions that reveal reputation, not the hurtful comments people might say about the lawyer. No one can control what others say or write or clog the Internet with. A person can control two things, how he or she behaves and whether or not that person will let negative remarks affect them. We live in a world where all judges are painfully aware that every time they rule, they make at best a temporary friend but also make a lifelong enemy. Judges and lawyers both know that negative comments can be spread by individuals who use computers like adolescents in cyberspace, typing out their frustrations from a safe distance. Those who challenge judges through one-sided attacks know that judges are unable to respond, making it appear that the Internet vitriol is the last word. But they don’t have the last word. A judge or a lawyer has the last word by his or her own conduct. Reputation is everything, but thankfully we have control of our reputation by what we do.
Lesson Five: Don’t waste anyone’s time Poor Richard also teaches us that “lost time is never found again.” Many 82 — The Advocate Magazine
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lawyers’ most valuable assets are billable hours. But the time of the people who are in court is equally valuable and is precious to the jurors, courtroom staff, witnesses and the court. This quote is a reminder of how precious our time is and how important it is not to waste time as lawyers. In a courtroom, jurors are missing work or missing time with their families. It is important to respect others’ time. Lawyers can do that by writing out their opening statements, examinations and closing arguments. Make good on time estimates. Lawyers should rid themselves of the notion that the lawyer who speaks longest wins. I have rarely seen that hold true. I would analogize the issue of conserving time to that of comedians on stage and appellate lawyers appearing in an oral argument. In both cases, each has a set time and when the red light goes on, the set and the argument end. Trial lawyers should heed this lesson and be aware that dominating another’s’ time is not dominating the case. Be the type of lawyer who is prepared, keeps to the time limits, and doesn’t waste the jury’s time repeating questions to a witness. I can’t count the number of times I have received a note from a juror in trial who asks why a lawyer keeps repeating the same question to a witness. Use the golden rule in considering the time of others as important as your time.
Lesson Six: Cultivate charm Another gem from Poor Richard’s Almanac: “A spoonful of honey will catch more flies than a gallon of vinegar.” Benjamin Franklin had a quality we all secretly strive for but would be hard pressed to find in a textbook. Benjamin Franklin was charming. During the Revolutionary War, Benjamin Franklin was a Minister to France along with John Adams representing the American colonies. Benjamin Franklin convinced France, a financially strapped country, to loan money and provide other support for the colonies’ fight for their
Mentors continues
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Mentors — continued independence through his dining, stories, and “charm.” Unlike the more somber John Adams, Franklin spent most of his time listening to and communicating with the people of France. Without negating the great acts of dedicated people in the United States, it is generally believed that Franklin’s securing of money and other support from France was a decisive factor leading to the colonies’ success in the American Revolution. While a lawyer could learn from all of Franklin’s attributes, his genuine interest in people and his enthusiasm for involving himself in the lives of others may be the best lesson a lawyer needs for being successful in court and for winning the respect, admiration, and support of the jurors and judges who make the important decisions. Keep Benjamin Franklin close at hand, for his words could be the Ideal Mentor leading you to success.
Judge Gregory Alarcon has been a judge for over 21 years. Before that, he was a deputy attorney general for the State of California, a deputy district attorney for Los Angeles County, and an assistant United States Attorney for the Central District of California. He received a J.D. from Loyola Law School in 1981 and a B.A. from UCLA. For the past 24 years, he has been an adjunct professor at Pepperdine University School of Law teaching trial practice and related subjects. He is also active in training and educating new judges and teaching ethics to all judges throughout the state. He is also a frequent lecturer on various topics on trial issues. He has written numerous articles and co-written a CEB Action Guide instructing lawyers how to present evidence at trial. In 2013, Judge Alarcon was given the 2013 Constitutional Right’s Foundation “Judge of the Year” award and a Judicial Excellence award from the Mexican American Bar Association.
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Hon. Rolf M. Treu
Los Angeles Superior Court
The Case Management Conference: CRC 3.724 meet-and-confer Truly “meeting and conferring,” with proper preparation, can help identify and resolve key issues in your case and prevent delays
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(4) Identifying the facts and issues in the case that are in dispute. Many times attorneys appearing before me have violated the rule by not having met and conferred or having so inadequately done so that when they tell me their respective positions at the CMC, surprise by the opposing side surfaces. Indeed, often documents are alluded to at the CMC that have not been exchanged or even discussed at the meetand-confer. In one recent case of alleged wrongful termination, the defense at the CMC referred to a written “Notice of Abandonment of Position” allegedly sent to plaintiff warning him to return to work or be terminated. This potentially important piece of evidence came as a complete surprise to plaintiff at the CMC, and had obviously not been discussed at the meet-and-confer. Its disclosure may well have resulted in further discussions helpful in eventual resolution of the matter. Rule 3.722(c) requires the attorney appearing at the CMC be “familiar with the case…and (she/he) must be prepared to discuss and commit to the party’s position on the issues listed in rules 3.724 and 3.727.” In other words, after the meet-and-confer, counsel should be in a position to discuss the facts and issues involved in the case, and certainly know his/her own side’s facts and position. The court can then get involved and discuss the matter further with counsel. Often these discussions can be of assistance to counsel in the further handling of the matter. If counsel is unprepared to discuss, obviously this opportunity is lost, which may result in a repeat CMC (3.723). Thus, the importance of the presence of the handling attorney (not required under the rules, but very helpful) or at least a fully briefed substitute, is obvious.
Also bear in mind that the violation of any of the rules relating to the CMC may result in the imposition of sanctions under CRC 2.30, including, but not limited to, the reimbursement of every other party to the case (if themselves compliant) for attorney fees incurred in the non-productive CMC. The purpose of Civil Case Management is to “…secure the fair, timely, and efficient disposition of every civil case….” (CRC 3.700.) Thorough preparation for the CMC, including the meet-and-confer requirements of rule 3.724, goes a long way toward achieving these goals. Hon. Rolf M Treu received his B.A. degree from the University of Redlands in 1970 and his J.D. from Loyola University in 1974. Following a 20-year practice, the majority of which was dedicated to plaintiff tort litigation, Judge Treu was appointed to the Municipal Court in 1995 by Governor Pete Wilson, and served as Presiding Judge of the Citrus Judicial District (West Covina) in 1999 and 2000 until unification. Since 2001, he has been sitting in the Mosk Courthouse, first assigned to Family Law, and in 2004 to General Civil, where he sits in Department 58. Procedures of Department 58, particularly the Discovery Abuse Protocol. Judge Treu is assigned to the following Superior Court committees: Bench/Bar, Research Attorney/Law Clerk; he has also served on the Rules Committee and the Asbestos Trial Assignment Committee.
It is common knowledge that with the shrinkage of court budgets resulting in layoffs, unfilled positions and like difficulties, the amount of time any judicial officer can devote to a specific case is significantly affected. Practitioners realize this when they try to set motions, which may result in hearing dates months into the future. In turn, trial dates are affected, and justice is delayed. These difficulties can sometimes be considerably mitigated by one seemingly innocuous yet frequently overlooked practice: knowing your case and the other side’s case as much as possible before attending the Case Management Conference (CMC). This is done by the effective use of California Rules of Court (CRC) 3.724, the requirement to meetand-confer. Sitting for over 10 years in a downtown IC court, I have noticed that many lawyers treat the CMC as a TSC (Trial Setting Conference), appearing only for the purpose of obtaining Final Status Conference (FSC) and trial dates, and ignoring the mandate of rule 3.724. The proliferation of “appearance attorneys” at the CMC who advise the court that their only instruction is to get the dates aforesaid is an example of this trend. If the Judicial Council had intended for the CMC to be simply a TSC, it would not have spent several pages of rules discussing the CMC (CRC 3.722 et seq.). Indeed, CRC 3.721 requires the court to “review” the case within 180 days of filing. Rule 3.722(a) requires the court to “review the case comprehensively” (emphasis added.) The rules then go on to explain, in detail, how that review is to take place. A critical part of the review is rule 3.724 which requires the parties to meetand-confer before the CMC and consider among other matters the following:
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Abraham Lincoln He was called Honest Abe in part because of his ethics as a lawyer for more than 25 years
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Abraham Lincoln’s name has symbolized integrity, trust and honesty for more than 150 years. Lincoln was called “Honest Abe” because he acted ethically, particularly as a practicing attorney for the quarter century at the bar before he became the 16th President of the United States in 1861. Attorneys in the mid-19th century era when Lincoln practiced were largely self-regulated when it came to ethical standards and practices. The first formal canons of ethics for the legal profession were not proposed by the American Bar Association (“ABA”) until 1908.1 Those early guidelines for professional responsibility have been revised many times over the years. The ABA Model Rules of Professional Conduct (“Model Rules”) were adopted in 19832 and have been enacted in some form by every state except California, which has its own Rules of Professional Conduct.3 So what were the ethical principles that guided Abraham Lincoln in his law practice and gained him the respect and reputation as “Honest Abe”?4
The making of an ethical lawyer When Lincoln was admitted to the Illinois bar in 1836, there were barely any law schools and no organized bar maintaining ethical standards. Most aspiring lawyers in Lincoln’s time apprenticed to practicing attorneys to gain some experience, studied up on the law and then were orally examined by judges or attorneys to become certified to practice law.5 It is legend that Lincoln’s ascendency from the backwoods to become a trial lawyer started at age 23 when he allegedly purchased a barrel that contained a copy of Blackstone’s Commentaries on the Laws of England, a work reciting black letter law that was a bible for early American lawyers. He studied Blackstone on his own.6 In fact, while living in New Salem, Illinois in the early 1830s, Lincoln got his start in the law when he assisted a local justice of the peace in drafting some legal documents, borrowed law books and became involved in some lawsuits of his own.
His local popularity allowed him to be elected to the Illinois Legislature in 1834, where he served while gaining valuable experience in drafting and interpreting laws.7 Lincoln was encouraged to study the law by friends who came to consider him as a virtual bookworm who “was always reading, writing, cyphering and writing poetry.”8 People thought that his folksy manner and storytelling, which included plenty of tales spiced with humor, irony and morality,9 would serve him well as an attorney. He attacked Blackstone as if his life depended on it. While some of his learning habits of reading at all times of day and night seemed a little odd to Lincoln’s frontier friends, it was agreed that he possessed the lawyer-like traits of a persuasive advocate.10 The determined young Lincoln realized that a law career was a means to make a name for himself and allow time to pursue his love of politics.11 The legal profession also was his ticket to escape the hard life of farming, river barging, land surveying and storekeeping that had been his lot in early life.12 According to his law partner William Herndon, Lincoln’s ambition was like “a little engine that knew no rest.”13 His resolve to succeed was a characteristic of a diligence that he exhibited throughout his career as a practicing attorney.
Competence that counts Ethical conduct demands that lawyers provide competent representation for their clients. The ABA Model Rules stipulate that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”14 Throughout his legal career, Lincoln made a concerted effort to meet this standard in representing his clients. Lincoln began practice in 1837 in a partnership with seasoned attorney John T. Stuart in Springfield. As he gained experience and started to build a reputation for himself, he gravitated to a partnership with Judge Stephen T. Logan in 1841. Logan & Lincoln dissolved in 1844 when the two saw that they had little
temperamentally or politically in common and the senior partner brought his own son into the practice.15 In the same year, Lincoln settled into practice with the much younger William Herndon (“Billy” as Lincoln called him) in the twoman firm of Lincoln & Herndon. It was a relationship that lasted for the rest of Lincoln’s life.16 In the antebellum decades before the development of legal specialization that evolved after the Civil War, most attorneys competed intensely for whatever business that walked through the door or might be referred by other attorneys on the rural judicial circuit in counties surrounding Springfield. Versatility was the name of the game for general practitioners like Lincoln. Whether in his Springfield office or on the “mud circuit” tramping by horse or buggy from one courthouse to another for months on end, Lincoln was primed to take just about any case that came his way. He interpreted wills and commercial instruments, sued to collect on debts, handled property, domestic and neighbor disputes, championed an occasional criminal offense and more.17 Lincoln constantly mustered the strength and ability to handle the pressures of a demanding practice, even while taking time out for politics and raising a family.18 Together with his successive partners, he represented clients in over five thousand cases or matters during his legal career.19 Ultimately, with tenacity and experience, he became what one of his peers called “the strongest trial lawyer we have had in Illinois.”20 This is a telling statement about the enormous capabilities of a lawyer who did not have much more than a year of formal schooling. Like most attorneys, Lincoln worked hard to provide his clients with the best representation that he could offer.21 As a self-made lawyer, he had his work cut out for himself. Responding to an inquiry about a prescription for starting lawyers to obtain a thorough knowledge of the law, he recommended that, “The best mode [to learn and succeed at the law] is JULY 2014
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Lincoln — continued
simple, though laborious and tedious. It is only to get the books, and read, and study them carefully. . . . Work, work, work, is the main thing.”22 The stature of some lawyers is measured by the quality of their pleadings and others by their courtroom skills. The many surviving briefs, pleadings, attorney communications and client advice letters in Lincoln’s clear, legible handwriting attest that he had a natural ability to prepare forceful arguments and provide solid client advice.23 But he was never a paper-producing litigation lawyer. He detested the mechanical drudgery of office work. Lincoln generally found research and drafting tedious and avoided it as much as possible. Lengthy case citations in his briefs and oral arguments were virtually unknown.24 The relatively few statute books, treatises or case reporters in Lincoln’s office could hardly be called a library. For that matter, no more than a handful of law books could be carried on the circuit. But these were adequate for a mid-19th century practitioner like Lincoln who did not cite many case decisions in his pleadings and arguments.25 While he conducted legal research when necessary, general principles of law and logic, not rote case citations, were his stock in trade.26 Drafting pleadings initially did not come naturally to Lincoln. But he mastered his writing technique and worked at stating his clients’ claims without overpleading. He advised that “[i]n law it is good policy never to plead what you need not, lest you oblige yourself to prove what you can not. Reflect on this well before you proceed.”27 The hallmark of a true trial lawyer is more than adequate drafting skills. It is the power to persuade in a courtroom. Lincoln’s facility with the use of spoken and written language improved with regular practice and application. Lincoln’s dexterity as a trial lawyer distinguished him from lesser attorneys of his time. He was gifted with extraordinary oratory skills and a huge ability to expand his intellectual capacity. He had 90 — The Advocate Magazine
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the capability to use words to create visual imagery. A plain speaker, he coupled simple words with close reasoning and analogies that appealed to common sense. One colleague on the circuit observed that his unimpassioned simplicity was “confined to the case.” So it was usually uncharacteristic for him to “play to the pit” with histrionics in addressing juries.28 Another first-hand observer similarly remarked that “his speeches to the jury were very effective specimens of forensic oratory. He talked the vocabulary of the people, and the jury understood every point he made and every thought he uttered . . . He constructed short sentences of small words, and never wearied the mind of the jury by mazes of elaboration.”29 But Lincoln’s courtroom advocacy was more than just style. He had a substantive approach to examining witnesses. To the greatest extent possible, he attempted to pose questions that had no fat on the bones. His direct and lucid questions were bullets that shot directly to the heart of a case. Central to Lincoln’s approach was his care to ensure that his questions were carefully selected to fit into a structure that proved the case, not superfluous inquires that did no more than pile on additional non-essential information.30 With a keen sense of the psychological dynamics of a trial, Lincoln appreciated that a jury needs just enough facts to reach a proper result and that the day can be lost if jurors are fed too much indigestible information. Thus, it would not have occurred to Lincoln to employ an untargeted shotgun approach to questioning that lacked direction and focus or raised every conceivable or irrelevant detail surrounding a case just for the sake of providing filler. Concentration, discipline and control were his badges.31 Most telling about Lincoln’s trial strategy was his customary practice of making only the most essential objections in trial. Colleague Leonard Swett summarized Lincoln’s often reticent approach of not responding to an opposing counsel’s line of questions as
evidence was adduced at trial: “Now about the time he had practiced this three-fourths through the case, if his adversary didn’t understand him, he would wake up in a few minutes [and] would begin to see that what he was so blandly giving away was simply what he couldn’t get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that. Any man who took Lincoln for a simple-minded man would very soon wake up with his back in a ditch.”32 In closing argument, Lincoln was at his pinnacle of persuasion. By the end of a trial, he usually had what he needed for argument. Without pounding on the table or strutting about, he could move jurors more with a low-key, logical plea premised on the facts and justice of the case. Nineteenth century biographer Noah Brooks perhaps laid it on a little thick when he related that, in speaking to a jury, Lincoln rose to “twenty feet high” and he “no longer was the homely and ungainly man that he was reputed to be. His eyes flashed fire; his appearance underwent a change as though the inspired mind had transformed the body; his face, darkened with malarial influences and seamed with wrinkles of premature age, was transfigured with the mysterious ‘inner light’ which some observers have said reminded them of a flame glowing with half-transparent vase.”33 Notwithstanding such hyperbole, Lincoln’s contemporaries uniformly agreed that he had a substantially better command of rhetoric and elocution than most lawyers of his day.34
Diligence: A key to success As professionals, lawyers must act with reasonable diligence and promptness in representing clients.35 Lincoln expressed his thoughts on these obligations in an 1850 lecture for young lawyers: “The leading rule for the lawyer, as for the man of every calling, is diligence.
Lincoln continues
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Lincoln — continued Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.”36 Preparation, organization and focus were central to Lincoln’s powers of persuasion and success in his law practice. He gathered the details of the essential facts; organized his story points into logical arguments; anticipated his opponent’s positions (conceding when he had no counterpoint); and presented his cases with an orderly discipline and selfassurance.37 Lincoln comprehended the importance of staying on theme without deviating from the indispensable points required to prevail. Lincoln himself did not believe that he was a good spontaneous or extemporaneous speaker but was at his best when he had time to thoroughly prepare his thoughts for presentation.38 One might have been surprised by the forcefulness of Lincoln’s thought processes upon visiting the one-room office that he shared with his partner Herndon near the courthouse in Springfield. The furnishings were sparse, worn and functional. Lincoln, often clad in a black shawl, might start the day stretched out on an old sofa reading a newspaper or chatting with a passerby.39 Tidiness was not a virtue of this law office. A visitor once noticed that some flower seeds that had been ignored in a corner of the office had germinated in the dust of the unswept floor.40 It was observed that Lincoln’s filing system sometimes consisted of stuffing papers into his famous stovepipe hat, which Herndon called his “desk and his memorandum book.”41 The popular Lincoln biographer Carl Sandberg wrote that the iconic tall cylinder sometimes ran over at the rim with Lincoln’s bankbook, miscellaneous correspondence and notes to himself reflecting his thinking. By Sandberg’s account, it sort of whistled softly, “I am not a hat at all; I am the
Lincoln continues
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Lincoln — continued
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little garret roof where he tucks in little thoughts he writes on pieces of paper.”42 But one would have been mistaken in believing that Abraham Lincoln’s relaxed office demeanor indicated that he might be a laid-back country lawyer. He was fiercely competitive in his representing clients at all times.43 Lincoln’s diligent representation of the defendant in the 1857 federal trial in Chicago in the pivotal case of Hurd v. The Rock Island Bridge Company is a prime example of the preparation, attention to detail and trial skills that he exhibited at the height of his legal career. In 1856, the Effie Afton, a river-packet, had struck the pier of the first railroad bridge built across the Mississippi River. The case brought to bear more than the question of who was liable for the damages to the bridge and the riverboat. The case symbolized an economic clash between traditional river transportation and the expanding modern railroads in the development of the West. In readying for the Hurd trial, Lincoln spent months inspecting the collision site, testing river currents, calculating river and bridge traffic, analyzing the bridge’s architecture and interviewing witnesses. An engineer who observed the trial commented on the completeness of his defense: “Lincoln’s examination of witnesses was very full and no point escaped his notice. I thought he carried it almost to prolixity, but when he came to argument I changed my opinion. He went over all the details with great minuteness, until court, jury, and spectators were wrought up to the crucial points. Then drawing himself up to his full [six-foot, four-inch] height, he delivered a peroration that thrilled the courtroom and, to the minds of most persons, settled the case.”44 Lincoln’s industrious and clever defense of the accused in the celebrated “Almanac Case” of People v. Duff Armstrong in 1858 again illustrates his thoroughness. The elderly mother of one of Lincoln’s long-time friends called
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Lincoln — continued
upon him to represent her son,45 who was charged with a brutal murder. The odds appeared strongly stacked against Lincoln’s client, who was alleged to be a perpetrator in the bludgeoning death of a man at a rural camp meeting on a summer night in 1857. A co-defendant had already been found guilty and received a stiff prison sentence. But Lincoln took nothing for granted. He personally interviewed witnesses, walked the crime scene at night and retained a medical expert to provide an alternative theory that sought to shift blame for the fatal blow to the already convicted co-defendant. But Lincoln also had another defense “surprise card” up his sleeve. Putting his immense acumen as a cross-examiner to work at the trial,
Lincoln deftly pinned down the main prosecution eyewitness’s testimony to emphasize that he had had a clear view of Armstrong striking the homicide victim on the head with a metal ball wrapped in a leather slingshot. Lincoln calmly questioned this eyewitness repeatedly about his view of the crime, which he testified was at a certain time of night and without obstruction from 150 feet through some trees under a brilliantly shining moon. Lincoln then pulled the rug out from under the witness’s story when he took out an almanac that recited an entry stating that the moon had already set by the moment of the crime. He requested the court to take judicial notice that the supposedly bright moon was already
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down. The motion was granted. Lincoln ceremoniously showed the almanac entry to the jury. The witness was dumbfounded by this scientific evidence that undermined his testimony. The jury roared, took in Lincoln’s emotionally-charged closing and promptly acquitted the defendant.46 Another fundamental aspect of Lincoln’s thoughtful representation concerned his attentiveness and responsiveness to client needs. His numerous surviving letters to clients show that he highly regarded the professional necessity of keeping his clients advised about their cases and suggesting legal options to them.47 Practicing what he preached, Lincoln recommended that lawyers “Never let your correspondence fall behind.”48 Lincoln’s client advice letters were candid and direct. One example of such correspondence by him was a letter sent to Joseph Means in 1858 advising that “The statements made within, if true are evidence of fraud on the part of the executor in selling the land. Fraud by principles of law, invalidates everything. To get rid of the sale, a bill in chancery is to be filed, charging the fraud, and then, if the fraud can be proved, the sale will be set aside. This is all that can be said. Any lawyer will know to – to do it.”49 Could a client ask for a more forthright legal opinion? Honest to the core, Lincoln had no hesitation in admitting his occasional neglect of a client due to the press of other business or politics. Typical of his philosophy that clients’ interests and business should predominate was his apology in a February 19, 1851, letter to client William Martin: “The Legislature having got out of the way, I at last find time to attend to the business you left me on behalf of Alton and Sangamon Railroad Company . . ..”50 While Lincoln was not necessarily recognized by his peers to be the most refined trial lawyer who ever set foot in an American courtroom,51 he had a personality that attracted clients and instilled confidence in juries that enabled him to conscientiously represent his
clients with a moral integrity that compensated for any shortcomings in education or training.52
Fair fees pay dividends When lawyers have ethical issues with their clients, it often concerns payment of attorneys’ fees. In this regard, the ABA Model Rules recommend, in part: [a] lawyer shall not make an agreement for, charge, or collect an unreasonable amount for expenses and set forth guidelines for lawyers to follow in setting reasonable fees.53 For Lincoln, the practice of law was a respectable way to earn a living without getting his hands blistered.54 The problem then, as for lawyers now, was practi-
cal: obtaining paying clients. A majority of the cases that came Lincoln’s way were pretty routine and he took most of them.55 His practice depended on a large volume of fairly small debt collection matters (about 60 percent of his practice), property and boundary disputes, divorces, contract claims, personal-injury cases and an occasional criminal case.56 As his practice matured, Lincoln handled more sophisticated commercial and business cases and he was retained to appear in federal court in Chicago and beyond.57 Contrary to myth, Lincoln was not a legal Don Quixote or crusader at the bar.58 He took cases for what they were. For instance, although he held strong beliefs against slavery and is remembered as the Great Emancipator, he represented
slave owners as well as those freeing slaves.59 Although he gained a reputation as a “railroad attorney,” he both sued and defended railroads.60 Cash payment for attorneys’ fees in Lincoln’s day was hard to come by and sometimes fees were paid by notes secured by property or in kind (such as crops, wood cords or services in exchange). In his early practice days, Lincoln took many cases for little more than $2, $5 or $10 each.61 Indeed, he became notorious with his colleagues for charging low fees. By the account of a fellow circuit rider, Lincoln’s fees were too reasonable. Lincoln’s fellow attorney, Ward Hill Lamon, commented that charging fees for services was “a branch of practice that Mr. Lincoln never could
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learn. In fact, the lawyers on the circuit complained that his fees were not at all commensurate with the services rendered.”62 Lincoln would not put making a dollar over maintaining his integrity. In one case he told a client, “I can win your case. I can get you $600. I can also make an honest family miserable. But I shall not take your case, and I shall not take your fee. One piece of advice I will give you gratis: Go home and think seriously whether you cannot make $600 in some honest way.”63 A particular situation regarding attorneys’ fees that always stood out in Lamon’s mind was a case in which a $250 fee for Lincoln and his co-counsel was agreed in advance. The case was tried
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and won in twenty minutes. Lincoln asked, “What did you charge that man?” Advised that it was a set fee of $250, Lincoln retorted, “The service was not worth that sum. Give him back at least half of it.” When co-counsel protested, Lincoln replied with displeasure, “That may be, but I am not satisfied. This is positively wrong. Go, call him back and return half the money at least, or I will not receive one cent of it for my share.”64 Although his fees were low in comparison with some other attorneys, Lincoln seldom provided representation for free. A notable exception was his defense of Duff Armstrong, a case taken out of gratitude for old friendship.65 Even charging low fees did not generate a 100 percent collection rate and
Lincoln sometimes found it necessary to sue clients for fees.66 A curious incident involving a fee of $5,000, the highest he ever received, caused Lincoln to file a collection action against his client, the Illinois Central Railroad. In 1853, Lincoln sued McLean County, Illinois, on behalf of the Illinois Central Railroad to test the constitutionality of an Illinois statute that granted the railroad immunity from local taxation. He was paid a $250 fee for his successful work in the trial court and defended two appeals. Lincoln then sent a bill for legal fees of $2,000 to his client. The railroad’s superintendent was George B. McClellan, who later served as the commanding Union general during the Civil War until a frustrated Lincoln relieved him. McClellan returned the favor by unsuccessfully running against Lincoln for president in 1864. In response to presentation of the bill, McClellan exclaimed, “Why, sir, this is as much as Daniel Webster himself would have charged. We cannot allow such a claim.” On his way home to Springfield, some lawyers persuaded Lincoln to raise his demand to $5,000 and induced him to sue. He did. Perhaps embarrassed by the shabby treatment that it had accorded Lincoln, the railroad defaulted and the $5,000 judgment was promptly paid. It was an extraordinary fee for its day.67 Always faithful to “Billy” Herndon, Lincoln followed his customary practice of evenly dividing this fee with his junior partner.68 Lincoln’s law practice brought him the dignity and comfortable middle-class living that he desperately sought. But he never became wealthy in the practice of law. Averaging little more than $2,000 income a year, he had a net worth of no more than $12,000 when he said his final farewell to his law partner and friends in Springfield in early 1861.69 His financial standing was certainly good for his day, but hardly a fortune.70 Although Lincoln’s inhibition to charging high fees prevented him from becoming rich by practicing law, he did make an adequate income to allow time for him to devote to his political
activities and also maintain his principles against gouging clients. In some 1859 remarks to some law students, Lincoln expounded on ethical practices concerning attorneys’ fees: “An exorbitant fee should never be charged. As a general rule never take your whole fee in advance, nor more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect of you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something and you are sure to do your work faithfully and well.”71
An independent advisor There is a common public perception that lawyers sometimes stir up litigation rather than acting as peacemakers intent on resolving legal problems. Long before the profession began self-policing itself with recommended ethical standards, Lincoln followed his own moral
compass in rendering candid advice based on his independent professional judgment in providing practical and honest legal opinions for his clients.72 Throughout Lincoln’s career he was known as a “litigation man.”73 He was a trial lawyer who settled cases when he could and went to trial when he could not. The more accomplished that he became as a trial lawyer, the greater value he saw in settling a legal dispute. If a case could be settled short of trial, Lincoln would seek a way to resolve it. When he was convinced that his client did not have a sufficient claim, he had no hesitation in suggesting a graceful settlement. Knowing when to pick his fights, he did not encourage litigation when it was not well-advised.74 Thus, Lincoln strongly advised that lawyers should: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser, in fees, expenses, and waste of time. As a peacemaker, the lawyer has superior opportunity of being a good man. There will still be business enough.”75
Lincoln put this admonishment favoring mediation and compromise into effect in his daily law practice. Indicative of such settlement advice was this letter to one client: “I sincerely hope you will settle it. I think you can if you will, for I have always found [the opposing party] a fair man in his dealings. If you settle, I will charge nothing for what I have done, and thank you to boot. By settling, you will most likely get your money sooner, and with much less trouble & expense.”76 A clerk who worked in Lincoln’s office stated that “I have heard him tell wouldbe clients again and again – You have no case; better settle.”77
Appraising cases with honesty An honest lawyer should not assert a claim or argument or defend in a civil or criminal proceeding unless there is some basis in law and fact for doing so.78 Lincoln wanted to obtain clients as much as any lawyer, but he could not participate in a case that offended his sense of integrity or where he could find no merit.79 In one instance after another, Lincoln’s fellow lawyers reported that it was morally repugnant for him to
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represent or continue to represent a client whose cause he felt was wrong.80 A contemporary said that “It was morally impossible for Lincoln to argue dishonestly. He could no more do it than he could steal.”81 Lincoln did not mince words in advising clients. Without reservation, he advised one client, “I do not think here is the least use of doing anything more with your lawsuit. I not only do not think you are sure to gain it, but I do think you are sure to lose it.”82 He was heard saying to one prospective client that he had “a pretty good cause in technical law, but a pretty bad one in equity and justice.”83 His moral incorruptibility especially showed itself in criminal cases, which were a small part of his practice. In the course of defending in one trial, Lincoln became convinced of his client’s guilt and thought that he could not continue to defend him. He turned to his co-counsel and said, “The man is guilty. You defend him. I can’t.” Lincoln was induced to stay on and even present the closing argument. But his mind was not in it and the defendant was convicted. It was commented that “His logically honest mind chilled his efforts. While he made some good points, the honesty of his mental processes forced him into a line of argument and admission that was very damaging.”84 In defending a man charged with larceny, Lincoln became convinced that the man was guilty and ought to be convicted. While not abandoning the case, he urged his co-counsel to conduct the argument because he feared “the jury will see from my face the man is guilty and convict him.”85 But Lincoln also could show passion for an accused under certain circumstances. He represented Melissa Goings, an elderly woman charged with killing her husband in self-defense. She fled during the trial by stepping out a courtroom window. When the bailiff pointed to Lincoln’s complicity, he responded, “I didn’t run her off. She wanted to know where she could get a good drink of
water, and I told her there was might good water in Tennessee.”86 It was hard for Lincoln to present a disingenuous argument to a court. When he came up short on authorities to support his position in his first argument before the Illinois Supreme Court, it was reported that he said, “As the court will perceive by looking at the record, the only question in the case is one of authority. I have not been able to find any authority to sustain my side of the case, but I have found several cases directly on point on the other side. I will now give these authorities and submit the case.”87 No different from most trial lawyers, Lincoln was never below using a technical argument or objection for tactical advantage if he had a good one to present.88 But he often would stand silent and concede facts to an opposing attorney who raised minor or irrelevant points that did not conflict with his own story line or did no damage to his own case. Letting the non-essential slide, he might state “I reckon it would be fair to let that in” or “We’ll give on that point” or “I reckon they were right there.”89 He did not waste effort protesting evidence where others might have been on their feet shouting futile objections. He had little patience for petty nit-picking and the good sense not to protest too loudly if he believed that certain evidence might get admitted anyway. He also could ignore evidence if it did not hurt his client’s case or small technicalities that did no harm to his client’s case.90 While he customarily showed respect for a court, counsel and witnesses, his patience could be tried where he felt that a court’s ruling was off-point or not wellinformed. Many local judges in Lincoln’s day were lay people not well-schooled in the law. In one situation, Lincoln was appearing before a lay judge who had been elected to the elevated position of circuit judge. In response to Lincoln’s points, the judge repeatedly blurted out, “I don’t know about that. I don’t know about that.” Finally, Lincoln had had enough and could not contain himself any longer. He looked the judge straight
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in the eye and said, “I knew your Honor didn’t know about it and that’s why I told you.”91 Notwithstanding his usual courtesy, Lincoln had no hesitation to protest if the evidence seemed unfairly damaging to his client. In a murder prosecution in 1859, the court had ruled against the admission of the victim’s dying declaration that was critical to Lincoln’s defense of his client. Before going to his reward, the deceased had stated that he had “brought [the situation] upon myself, and I forgive [the defendant].” Lincoln denounced the court’s ruling keeping the statement out of evidence. He advised the judge that he “had never heard of such law.” Further on the offensive, he called the ruling “absurd and without precedent in the broad world.” The force of Lincoln’s remonstrance caused the judge to retract his ruling and allow the statement into evidence. Lincoln’s client was acquitted.92 One of Lincoln’s closest observers on the county courthouse circuit was Judge David Davis, who traveled and lodged with the attorneys while presiding over their cases. He was later appointed by President Lincoln to the United States Supreme Court. Judge Davis came to
respect that Lincoln “never took advantage of a man’s low character to prejudice the jury. Hence [even] the meanest man at the bar always paid great respect and deference to him.”93 But when Lincoln smelled a skunk or a fibber, his high sense of moral principle could be merciless in heaping ridicule or challenging the credibility of a witness. Circuit rider attorney Whitney said that “If a witness told the truth without evasion, Lincoln was respectful and patronizing to him, but he would score a perjured witness unmercifully.”94
Lincoln’s ethical message Abraham Lincoln did not gain a professional reputation for honesty by simply sermonizing on virtue. He endeavored to maintain high professional values in every aspect of his personal life and law practice. For this reason, he had this sage admonition for lawyers: “There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonest is very distinct and vivid. Yet the impression is
common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief – resolve to be honest at all events; and if in your own judgment cannot be an honest lawyer, resolve to be honest without being a lawyer. Chose some other occupation, rather than one in the choosing of which you do in advance consent to be a knave.”95 Lincoln undoubtedly believed that if more lawyers heeded this ethical advice, there might be fewer in trouble with their own clients, the bar or judges. While recent years have seen a huge increase in emphasis on ethical conduct and practices for attorneys, Lincoln’s example remains the gold standard for lawyers to follow. Judge Michael L. Stern has presided over civil trial courts since his appointment to the Los Angeles Superior Court in 2001. He is a frequent speaker on trial practice matters. As an attorney, he tried cases throughout the United States. Judge Stern is a graduate of Stanford University and Harvard Law School. The endnotes can be found with the complete article online at www.theadvocatemagazine.com and www.caala.org (Advocate archives).
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Defense mental exams and plaintiff’s psychiatric diagnosis What you must know before your plaintiff is exposed to the pain of a mental exam Defense mental examinations are a unique and troubling discovery tool; the only discovery procedure requiring plaintiff to submit to hours of adversarial examination outside the presence of counsel. During evaluation, the mental probing can be painful to a sensitive plaintiff and the examiner’s later disclosed conclusions are damagJustine Durrell ing to plaintiff, both personally, and in the context of the lawsuit. The defense expert uses the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), in making a diagnostic assessment. Prior to the release of the most recent DSM-5, clinical assessment and diagnosis were organized into axes or dimensions addressing different aspects of a disorder and usu1 Ronald Schwartz ally resulting in several diagnoses for the plaintiff. For defendant the diagnoses provide alternative theories of causation for plaintiff ’s complaints, and have the intentional, or inadvertent, consequence of creating a bias against plaintiff and undermining his or her credibility.
Education and a full appreciation of the plaintiff ’s injuries are essential to deciding what claims to tender and possibly withdraw. The following discussion covers: (1) the basics of the defense mental examination and ways of limiting, or avoiding, it; (2) anticipating the types of cases and claims that lead the Court to grant mental examinations; and (3) breaking down the reasons defendants want psychiatric examinations and the impact on the plaintiff.
The nuts and bolts of defense mental examinations • Compelling a mental examination of the plaintiff Mental examinations may be obtained of a party whose mental condition is placed in controversy. (Code Civ. Proc., § 2032.020(a).) Unless the parties agree, leave of Court is required to obtain a mental examination. (Code Civ. Proc. § 3032.310(a).) A motion shall be granted only for good cause (Code Civ. Proc., § 2032.320(a)), which generally requires (1) relevancy and (2) specific facts justifying discovery. (Weil & Brown, California Practice Guide, Civil Procedure Before Trial, Chap. 8, section 8:1557, p. 81-16.)
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For example, in Vinson v. Superior Court of Alameda County (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833, plaintiff alleged, among other causes of action, sexual harassment. She pleaded, “diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation and severe emotional distress” (Id. at 840). Defendants pointed out plaintiff ’s allegations, and because the truth of these claims was relevant and specific justifying facts were shown, the Court found good cause demonstrated to allow a defense mental examination. (Id. at 840841). In distinguishing the particular facts of the case, the Court emphasized
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that a simple sexual harassment claim would not normally create a controversy regarding plaintiff ’s mental state. (Id. at 840.) In Reuter v. Superior Court of San Diego County (Tag Enterprises) (1979) 93 Cal.App.3d 332, the Appellate Court decided the mother of a minor plaintiff could not be compelled to undergo a mental examination as collateral to her son’s mental evaluation because the mother’s mental condition was not in controversy. (Id. at 341-342.) Good cause for a defense mental examination requires a two-step proof. First, plaintiff ’s mental condition must be in controversy. Second, there must be a demonstration of specific facts justifying the discovery. For instance, in an employment action, a plaintiff may have previously been tested and interviewed by a psychologist for worker’s comp, and making that evaluation available to defendant can preclude justifying another mental exam, even though the mental condition has been tendered. Defendants often initiate the procedure by sending a notice of mental exam as a meet-and-confer attempt. The parameters of the examination(s) should be clearly defined, either through agreement among counsel, or by Court order. An order helps minimize potential misunderstandings, particularly with defendant’s examiner(s). The adversarial mental examination can be an ordeal and establishing clear time frames, and other limiting parameters is helpful to minimize the hardship and privacy invasion.
Parameters of the motion and examination • Time, Place, Scope, Number The motion must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of the person or persons performing the examination. (Code Civ. Proc., § 2032.320(b).) The examiner must provide a specific list of the diagnostic tests and procedures to be used. (Carpenter v. Superior Court of Alameda (Yamaha Motor Corporation,
USA) (2006) 141 Cal.App.4th 249.) Examination is to be conducted within 75 miles of plaintiff ’s residence, unless there is good cause to increase it, and defendant pays related expenses. (Code Civ. Proc., § 2032.020(e).) There is no specified limit on the number of mental examinations, only the necessity of showing “good cause” for each particular exam. (Shapira v. Superior Court of San Mateo County (Sylvestri) (1990) 224 Cal.App.3d 1249.) • Requirements for who can perform it Mental evaluations must be performed by a licensed physician, or a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders. (Code Civ. Proc., § 2032.020(c).) • Only examiner and examinee can attend Audio taping the examination is permissible, but no attorney or third parties are allowed to be present. (Code Civ. Proc., § 2032.530(a)-(b).) The exclusion of everyone, other than the examiner and plaintiff, is purportedly based upon the need to establish rapport and to avoid interference with the psychological process. (See, Edwards v. Superior Court of Santa Clara County (Santa Clara Unified School District) (1976) 16 Cal.3d 905; Toyota v. Superior Court of Los Angeles County (Braun) (2010) 189 Cal.App.4th 1391.) However, in at least one reported case involving a minor, through the parties’ stipulation, the mother was allowed to be present during the mental examination of her brain damaged 10-year-old son. (Golfland Entertainment Centers v. Superior Court of San Joaquin County (Nunez) (2003) 108 Cal.App.4th 739.) Disagreement exists among the Courts as to whether the examinations can truly be impartial.2 In Whitfield v. Superior Court of Los Angeles County (Cleveland Wrecking Company) (1966) 246 Cal.App.2d 81, the plaintiff was ordered to appear for a psychiatric examination without the presence of counsel. The Court found the examination required an atmosphere conducive to freedom of
expression, and assumed defendants would select a doctor to make an unbiased and objective psychiatric examination in order to be convincing at trial. (Id., at 86.) In his dissent in Edwards, supra, 16 Cal.3d at 914, Justice Sullivan strongly disagreed with this view: “where a court orders a psychiatric examination at the request of one party, I find it difficult to believe that the atmosphere of the examination will be conducive to ‘a special and private rapport between examiner and examinee’.” • Getting the results Plaintiff may demand the psychiatrist/psychologist produce, within 30 days, a detailed report setting out the history, the examination findings, test results, diagnosis, prognosis, and conclusions. (Code Civ. Proc., § 2032.610; Kennedy v. Superior Court of Marin County (Lucky Stores, Inc.) (1998) 64 Cal.App.4th 674, 678 (it is not optional, the examiner is required to produce a report).) This demand triggers plaintiff ’s simultaneous obligation to produce all reports recorded by any physician, psychologist or licensed health care provider who previously examined him or her. (Code Civ. Proc., § 2032.630.) Any work product privilege is waived as to any such reports. For this reason, it may be prudent to advise plaintiff ’s expert(s) not to write a report. As part of the demand, make sure defendant’s psychologist’s raw testing data is sent to your psychologist for review, including the scoring, interpretation and computerized print-outs.
Avoiding the mental examination • Stipulation Plaintiff can stipulate that no claim is being made for mental or emotional distress over and above what is usually associated with the physical injuries claimed and no expert testimony regarding this usual mental distress will be offered at trial. (Code Civ. Proc., § 2032.320(c).) Where plaintiff offers a stipulation, the Court cannot order a mental examination “except on a showing of exceptional circumstances.” (Code Civ. Proc., § 2032.320(b).)
Exceptional circumstances might be based on plaintiff ’s irrational behavior or a physical appearance suggesting mental illness. (Weil & Brown, supra, at section 8:1568, pg. 81-20.) • No continuing mental distress If plaintiff ’s emotional distress ceases during the course of the litigation, it is no longer at issue. The Appellate Court in Doyle v. Superior Court of Santa Clara County (Caldwell) (1996) 50 Cal.App.4th 1878, found plaintiff ’s past mental suffering no longer in controversy because she alleged she was not suffering current mental injury. Doyle accorded its holding with Vinson as follows: The California Supreme Court expressly based its holding in Vinson on the nature of the plaintiff ’s allegation of continuing emotional distress. ...[Mental] examinations may ordinarily be considered only in cases in which the alleged mental or emotional distress is said to be ongoing. (Vinson at p. 847, italics added.) (Doyle v. Superior Court, supra, 50 Cal.App.4th at 1885.)
Circumstances wherein mental examinations may be required • Plaintiff claims mental disability caused by defendant’s conduct When a plaintiff alleges defendant’s conduct caused him or her severe emotional distress, or other types of mental injury, a mental examination may be granted. (Code Civ. Proc., § 2032.020(a); Edwards v. Superior Court, supra, 16 Cal.3d 905; Vinson v. Superior Court, supra, 43 Cal.3d 833.) This often results in not just one, but two examinations. The first by a psychologist administering testing, and the second by a psychiatrist interviewing plaintiff, reviewing test results, and writing an opinion report. For the plaintiff individually, it multiplies into four exams as he/she requires like experts to explain and counter the defense doctors’ opinions. To be placed in controversy, plaintiff ’s emotional distress must be greater than what is normally associated with the garden variety emotional distress accompanying physical injuries.3 And even with JULY 2014
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a general allegation of severe emotional distress, the opposing party may not require plaintiff to undergo psychiatric testing solely on the basis of speculation that something of interest may surface. (Vinson v. Superior Court, supra, 43 Cal.3d 840.) Defendant’s conduct causing extreme mental problems typically includes claims for sexual abuse, sexual harassment, and/or other employment abuses. A mental injury can also arise with accompanying physical injuries including sexual abuse, rape, and cases with critical bodily injuries. Occasionally a plaintiff may allege an exacerbation of preexisting Post Traumatic Stress Disorder (PTSD), caused by defendant’s conduct. This claim usually opens the door for defendant’s discovery of all records, reports, and treatment pertaining to the original traumatic event. Still, it is instructive to look at the “good cause” criteria used by the Eastern District Court in Robinson v. HD Supply, Inc. (2013) 2013 U.S. Dist. LEXIS 101703 (28 Am. Disabilities Cas. (BNA) 807), in deciding whether to compel a mental examination for plaintiff who claimed an exacerbation of PTSD from a hostile work environment. The Court agreed that plaintiff ’s mental state
was in controversy, but after considering the factors for assessing good cause, found defendant’s arguments unpersuasive. Factors considered in assessing whether “good cause” exists include, but are not limited to: (1) “the possibility of obtaining desired information by other means;” (2) “whether plaintiff plans to prove her claim through testimony of expert witnesses;” (3) “whether the desired materials are relevant:” and (4) “whether plaintiff is claiming ongoing emotional distress. (Robinson v. HD Supply, Inc., supra, 2013 U.S. Dist. LEXIS at *15-16, and cases cited therein.) • Defense claims physical injuries uncorroborated by test results Occasionally, a plaintiff will have bodily injuries uncorroborated by medical testing and defendant is anxious to use this to compel a mental examination. In Shapira v. Sylvestri, supra, 224 Cal.App.3d 1249, plaintiff claimed that during a dental procedure she sustained organic brain damage caused by the administration of drugs, which were counter-indicated due to her preexisting heart murmur. Plaintiff suffered a grand mal seizure and while being rushed to the hospital briefly stopped breathing. After 22 days in the
hospital, she exhibited a stroke-like state and upon leaving required a walker to ambulate. (Id. at 1251.) The contested issue was whether Ms. Shapira’s disabilities were of organic or psychological origin. A physical examination for the defense was conducted by Dr. Newton who concluded the diagnosis of organic encephalopathy was inaccurate, biologically implausible, and unsubstantiated by objective data; that plaintiff had a chronic emotional disturbance manifesting in somatization4 and pseudo-neurological dysfunction. (Id. at 1252-1253.) Thereafter, plaintiff submitted to a defense neuropsychological examination by Dr. Munday, who concluded the clinical picture was not explainable on the basis of brain damage, believing the symptoms to be either functional (psychological) or frank malingering. (Id. at 1253.) Both defense doctors agreed plaintiff needed a psychiatrist’s evaluation. Plaintiff objected to a second mental examination, but the Appellate Court ordered superior court to vacate its order denying the second exam and conduct a hearing on the question of whether good cause existed for it. (Id. at 1256.) When plaintiff has physical injuries uncorroborated by medical testing, be proactive and retain a consulting psychiatrist/psychologist to determine if good cause, in fact, exists for a mental examination by defendant.
Breaking down defendant’s reasons and the fallout Defendant’s primary reason to compel a mental evaluation is to prove alternative causes for the alleged injuries. Unfortunately, given a general bias against people with psychiatric diagnoses, the defense mental examination also tends to cast plaintiff in a negative light, undercutting his/her character and credibility. • Discovering alternative causation theories By asserting a causal link between mental distress and defendant’s conduct, plaintiff implicitly claims it was not caused by a preexisting condition, thereby 106 — The Advocate Magazine
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raising the question of alternative sources for the distress. (Vinson v. Superior Court, supra, 43 Cal.3d at 840.) In Golfland Entertainment Centers v. Superior Court, supra, 108 Cal.App.4th at 739, the Court allowed defendant’s neuropsychologist to conduct a mental examination of a 10-year-old who claimed brain damage from a boating accident. Good cause was demonstrated by the neuropsychologist’s declaration claiming an interview with the child was “necessary to rule out alternative etiologies (preexisting cognitive impairment or emotional problems, or problems caused by concurrent factors unrelated to the accident).” (Id. at 743.) Guard plaintiff ’s privacy and, to the extent possible, limit defendant’s discovery in search of alternative etiologies. In Mendez v. Superior Court of Merced County (Perry) (1988) 206 Cal.App.3d 557, a female county employee filed a claim against a deputy and his employer, alleging defendant Mendez accosted her, locked her in a room, and forced her to orally copulate him. Defendants sought to discover all sexual conduct of plaintiff with anyone other than Mendez, alleging she had engaged in numerous extramarital affairs. Defendants argued plaintiff ’s sexual conduct with others was relevant to, among other things, alternative causation for her emotional distress. The court denied the discovery and on appeal, defendants’ writ of mandate was denied. The Mendez Court thoroughly discussed Code of Civil Procedure § 2017, subdivision (d) (now Code Civ. Proc., § 2017.220(a)), prohibiting discovery into a plaintiff ’s sexual conduct with individuals other than the alleged perpetrator in sexual misconduct cases. It concluded in order to justify an inquiry into plaintiff ’s sexual conduct with others, either the plaintiff must claim some special damage, or defendant must demonstrate some extraordinary circumstance attendant to plaintiff ’s claim. (Mendez v. Superior Court, supra, 206 Cal.App.3d at pp. 565-573.) • Psychiatric diagnoses “There is overwhelming evidence that being labeled with a psychiatric
diagnosis changes people’s view of individuals. There is no reason to believe that this prejudice does not transfer into the courtroom. . . . Legal scholars have written extensively on the impact of stigma associated with mental illness.” (Deirdre M. Smith, The Disordered and Discredited Plaintiff: Psychiatric Evidence in Civil Litigation, 31 Cardozo L. Rev. 749, 808-809, (2010); Rachel V. Rose, Arlie N. Wallace, Ann M. Piccard, Another Crack in the Thin Skull Plaintiff Rule: Why Women with Post Traumatic Stress Disorder Who Suffer Physical Harm from Abusive Environments at Work or School Should Recover from Employers and Educators, 20 Tex. J. Women & L. 165, 184-185 (2011) (and articles cited therein).) In addition to recognizing the bias against people with a psychiatric diagnosis, there is general unrest over the validity of psychiatric diagnoses. On April 29, 2013, Dr. Thomas R. Insel, director of the National Institute of Mental Health (NIMH) posted a blog about the soonto-be-released DSM-5 by the American Psychiatric Association (APA). In part, Dr. Insel stated: While the DSM has been described as a “Bible” for the field, it is, at best, a dictionary, creating a set of labels and defining each. . . . The weakness is its lack of validity. . . .the DSM diagnoses are based on a consensus about clusters of clinical symptoms, not any objective laboratory measure. (Thomas Insel, Director’s Blog: Transforming Diagnosis, (April 29, 2013), http://www.nimh.nih.gov/about/director/ 2013/transforming-diagnosis.shtml (last visited 02/11/14) Later, Insel qualified his comments, approving the DSM-5, as a useful but limited tool, and promoting his own new diagnostic approach using biology and neuroscience, to better understand brain circuitry problems. (Benedict Carey, Blazing Trails in Brain Science, New York Times, Science Section, Profiles in Science, Dr. Thomas R. Insel, (Feb. 3, 2014).) He explained his ongoing concern with the field as follows: “We’ve had this huge increase in the use of all interventions, a 250 percent increase in use of
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antipsychotics, without any change in the morbidity or mortality in people with mental disorders; it hasn’t budged.” (Ibid.) The publication of the DSM-5, took nearly 15 years, cost $25M, and garnered strident criticism from all corners.5 (Gary Greenberg, “The Rats of NIMH,” The New Yorker, (May 16, 2013), http:// www.newyorker.com/online/blogs/elements/ 2013/05/the-scientific-backlash-against-...) The problem is not just that the DSM criteria is based on symptoms and not brain science, but there is widespread disagreement among mental health professionals about accurate diagnoses. For example, common symptoms of mental disorder – sadness and worry, or delusions and hallucinations – appear as criteria for many different diagnoses; many patients can be diagnosed with more than one disorder; and the few solid findings that have emerged from genetic and neuroscience studies indicate that the DSM’s categories simply don’t correspond to biological reality. (Greenberg, “The Rats of NIMH,” supra; also see, Lars Noah, Pigeonholing Illness: Medical Diagnosis as a Legal Construct, 50 Hastings L.J. 241, 248 (Jan. 1999).) Although evidence of the lack of validity for psychiatric diagnoses is unlikely to be raised by either party at trial, with both needing to rely on their psychiatrist’s diagnoses and
opinions for causation and damage, the topic may offer fertile ground for deposition questions. • Undermining plaintiff ’s credibility Mental examinations are not authorized for the purpose of testing a person’s credibility. (Doyle v. Superior Court, supra 50 Cal.App.4th at 1886.) Practically speaking, however, the presentation of alternative theories of causation combined with plaintiff ’s psychopathology diagnoses operate to undermine his or her credibility. Defendant’s psychiatric experts will give the opinion that plaintiff had numerous preexisting problems that caused the mental condition long before he or she encountered defendant. These alternative diagnoses serve to cast doubt on plaintiff ’s reliability as a witness and his or her veracity. Plaintiff ’s counsel can argue against any attempt by the defense experts to use their opinions to undermine plaintiff ’s credibility, as it is the duty of the jury to determine a witness’ credibility (Evid. Code § 312(b)). However, it may be more prudent to attempt to limit the type of information available to the defense expert, and the parameters of the examination before it occurs. Mendez, with ‘tongue in cheek’, was informative on this point. Defendants contended, as one of their reasons for discovering plaintiff ’s
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sexual history, that it “bears upon her credibility,” the Court responded that, “[a]lthough finely framed, County’s argument appears to assert, and conclude, that sexually-active people may be less credible than more chaste individuals.” (Mendez v. Superior Court, supra, 206 Cal.App.3d at pp. 565-573.) 6
Conclusion Our legal foundation honors logic over emotion, asking jurors to turn off their emotions and rely on rational executive thinking. (Teneille R. Brown, The Affective Blindness of Evidence Law, 89 Denv. U.L. Rev.47 (2011).) However, recent neuroscience testing demonstrates there may be little to no ability of our brains and our consciousness to separate out cognitive processing from emotional responses. (Id. at 100-124.) There is an inherent contradiction in asking jurors to award damages for emotional distress when their own emotions are deemed less important in making decisions than their logical and rational thoughts. This incongruity should be addressed at trial. Weigh all the above considerations before deciding what damages to tender and the scope of your mental distress pleading. One way to sidestep the examination is by stipulating pursuant to CCP § 2032.320. If defendant files a motion, oppose, and if possible defeat it by (a) limiting emotional distress to “garden variety,” and/or (b) denying there is any current continuing mental distress. If the Court finds good cause and specific facts justifying the need for a mental examination, advocate for parameters (a) protecting plaintiff ’s privacy, limiting discovery into his or her personal life7, and (b) limiting the time required for examination, the number of examiners, examinations, and tests administered. Ensure a clear order is issued. Take the defense expert’s deposition fully educated, so cross-examination at trial will be logical and compelling. For the jury, be aware and prepared for the bias the psychiatric diagnosis may impart and the capacity it has for undermining plaintiff ’s credibility.
Justine Durrell has furthered the practice of plaintiff ’s law in the areas of sexual abuse, toxic exposures, and biotechnology. Now a sole practitioner, she was formerly partners with Maja Hanks/Kristin, and they handled some of the first priest abuse cases in the United States. Ms. Durrell engages in extensive research and writing in advanced areas where law, science, and ethics meet, having published, “Can the Law Handle Human Cloning?” in TRIAL, October 2002, and “Women’s Eggs: Exceptional Endings”, in Hastings Women’s Law Journal, January 2011. Ronald Schwartz was Orange County Trial Lawyers Association Top Gun Personal Injury Lawyer of the Year in 2009. He is a member of ABOTA and was selected a Top 100 Lawyer by the National Trial Lawyers. He is consistently a Southern California Super Lawyer and listed in Best Lawyers in America since 2006. He is Past President of OCTLA and Parliamentarian for CAOC. He is a founding member of the Celtic and Jewish Bars. He owns “Southern California’s Best Pub,” Muldoon’s. The authors often collaborate on cases, primarily sexual abuse.
Endnotes DSM-5, released in May, 2013, shifted to a single axis system. Whether forensic experts will now limit the number of diagnoses, remains to be seen. A DSM-5 introductory note, cautions that the definitions of mental disorders were developed for clinicians, public health professionals and research investigators rather than for the technical needs of the courts and legal professionals, and the DSM does not provide treatment guidelines for any given diagnosis. 2 In Mercury Casualty Company v. Superior Court of Los Angeles County (Garcia) (1986) 179 Cal.App.3d 1027, where a defense physical examination was conducted, the Appellate Court indicated it was not meant to be impartial and the best protection against misconduct by a physician is cross-examination during trial. (Id. at 1034.) 3 California CACI Instruction 3905A includes physical pain, mental suffering and emotional distress as part of compensation for noneconomic damages. “In general,. . . the unitary concept of “pain and suffering” has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893, citing to Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433.) 1
DSM-5 has replaced disorders of somatization disorder, hypochondriasis, pain disorder, and undifferentiated somatoform disorder with Somatic Symptom Disorder. The DSM-5 does not require the somatic symptoms of an SSD diagnosis to be medically unexplained; it is not appropriate to diagnose individuals with a mental disorder solely because a medical cause cannot be demonstrated. 5 Much of the criticism relates to what some see as a too cozy relationship between the APA and pharmaceutical companies. In “The Book of Woe: the DSM and Unmaking of Psychiatry,” author Gary Greenberg indicates 56 percent of the APA’s DSM-5 work group members received money from big pharmaceutical companies. (http://www.naswil.org/news/chapternews/featured/book-reviews-the-book-or-woe-the-ds (Aug. 1, 2013).) With 15 new mental disorders included in the DSM-5, it is expected that the legitimization and expansion of certain disorders will pave the way for pharmaceutical companies to develop and sell more drugs to treat them, with the approval of the FDA. (www.marketwatch.com/story/new-psych-manualcould-create-drug-windfalls-2013 (June 5, 2013).) 6 For discussion on the admissibility of sexual conduct at trial to attack plaintiff’s credibility see, Evidence Code section 783 addressing this issue specifically in the context of civil actions alleging sexual harassment, sexual assault, or sexual battery. Also, see Winfred D. v. Michelin North America (2008) 165 Cal.App.4th 1011, where the Court of Appeal reversed a jury verdict, based in part, on the admission of the plaintiff’s polygamy and extramarital affairs after he suffered severe brain damage in a vehicle rollover. In Patricia C. v. Mark D. (1993) 12 Cal.App.4th 1211, the Court of Appeal affirmed an allowance of plaintiff’s sexual history and conduct, in her medical malpractice case against her psychologist for sexual misconduct. 7 Non-tendered medical and emotional conditions are protected by the constitutional right to privacy, Cal. Constitution, Art. 1, § 1, as well as the doctor-patient (Evid. Code, § 992), and psychotherapist-patient privilege (Evid. Code, § 1014). For limiting the extent of discovery of plaintiff’s medical records, see the following cases: Bearman v. Superior Court (2004) 117 Cal.App.4th 463 (records from doctor prescribing marijuana disallowed); Britt v. Superior Court (1978) 20 Cal.3d 844 (waiver of physician-patient and psychotherapist-patient privileges re medical conditions extends only to information relating to medical conditions in question); Hallendorf v. Superior Court (1978) 85 Cal.App.3d 553 (medical history limited to what was put into controversy); Roberts v. Superior Court (1973) 9 Cal.3d 330 (plaintiff in auto accident did not claim emotional or mental suffering and her psychiatric records pertaining to a suicide attempt a couple years before were not discoverable); In re Joseph E. Lifschutz (1970) 2 Cal.3d 415 (there is no absolute constitutional right protecting patientpsychotherapist records from disclosure, but discovery is limited by what is relevant to the controversy). 4
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John Hinman
The art of no An essay on managing the difficult task of rejecting potential clients “You better learn how to say no.” Another piece of sage and simple advice from my mentor as we discuss my impending treasonous move from the friendly confines of his defense firm to the cold, harsh realities of solo plaintiffs’ practice. I would do well to write out a list of these one-liners before I forget them all and put them on my wall to look at before I start work each day. As with most of his advice, my experience has quickly shown the wisdom in his words and often in ways I never initially expected. For those of you who have been running successful plaintiffs’ firms of any size, the importance of saying no to potential cases is elementary. For me, it has been one of the most surprising difficulties in starting my new practice. I knew from a business and practical perspective it was going to be important and I believed that my few years analyzing and deconstructing cases as a defense lawyer had prepared me to make intelligent business decisions. I got that part (mostly) right. It is the emotional rollercoaster of rejecting another human in need that was unexpected and most problematic. I have been kept up at nights with my insides torn apart due to the heart wrenching circumstances of potential clients that I have been unable to help. I often put off phone calls to clients to tell them that I can’t take their case for days, dreading that terrible moment of disappointment. The haunting experience of saying no to one client in particular provided me with the motivation to write this piece. Saying no to a potential client and case involves moral, ethical, practical and business issues that must be considered each and every time we are contacted by a potential client or with a potential referral. I will briefly review the importance of each of these aspects of rejecting a potential case. 110 — The Advocate Magazine
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Business concerns I’m sure that one of the first thoughts that goes through any successful plaintiffs’ attorney’s mind when learning about a new case is “can I make money on this one.” Unfortunately, for those of us who have yet to make it over the hump to the green pastures of relative financial stability, it is often the only question we ask in evaluating a case. Whether finances are the only or just and important consideration, case screening is one of the most important and regular business functions that we engage in as plaintiffs’ attorneys. The business aspects of screening potential cases have been the subject of several previous Advocate articles. Through a quick search, I was able to find past articles written by the following authors, with the category of the article in parentheses: Steven Mehta (Client); Kevin Rivin (Employment); Michael Blum (Law Firm Business); William Daniels (Law Practice Management); Elise Sanguinetti (Premises Liability); and Brian Chase (Products Liability). At the risk of crowding his inbox, in the mid1990s Arlan Cohen wrote a great chapter on how to financially evaluate medical malpractice cases. The equation he came up with is applicable, perhaps with a few tweaks, to financially evaluating a case in any practice area. I strongly recommend anyone review these sources to gain new or additional ideas for how to evaluate potential cases. Given my relative inexperience in this field, I’ll limit my advice to one tip for anyone starting a new solo or small firm: err strongly on the side of caution and only take cases that you are fully comfortable with. You don’t have to read “A Civil Action” to know that one case can sink even a successful firm, let alone a start-up. Although it is an understandable concern that you will be left without anything to do if you say no, it is a huge
mistake to address this concern by taking on anything that comes in the door. If you have an effective marketing strategy you will quickly have more than enough work to keep busy. Any small amount of down time you might have is going to be much better utilized by dedicating it to working your new office into shape, marketing for new opportunities, or perhaps observing any of the many talented lawyers in this organization trying a case.
Practical concerns There are many practical aspects to rejecting cases. For example, we are often too busy to properly analyze the client’s case and provide them the representation they need. This is especially true for those clients who come to us in urgent need of help, shortly before the statute of limitations or while representing themselves in active litigation. Sometimes an initial burst of effort can buy us the additional time necessary to represent the client, but often it is an immovable obstacle to accepting the case. Obviously a practical question is whether you can either settle or win the case a reasonable percentage of the time. Sometimes a client strikes us the wrong way, a complete legal defense is obvious in the facts, or past experiences with similar fact patterns have shown us that success is unlikely. Any variety of circumstances may shift that estimated probability of success to below an acceptable threshold. Issues of venue, the availability of insurance coverage or financial assets to cover the claim and the amount of work likely required to prosecute the claim versus the likely recovery are also common considerations. Also important to address is how the estimated costs of the case are going to be covered. Each case has a highly specific set of practical factors that can lead to saying no to a potential client. Saying no must also be carried out in the proper manner. Best defensive
practices dictate some sort of writing to the client, either in a letter or email, including a statement that there is a statute of limitations applicable to their case. This ensures that the client receives the message that you cannot represent them and documents a definitive no. However, a letter may not always be feasible and is sometimes unnecessary. Saying no to a referral from another attorney is probably safely done verbally as the other attorney bears the responsibility for client contact. Sometimes we may not even have an email or mailing address for a potential client, such as the case of a simple phone call from a potential client. The principle of all of this is that the client needs to be clearly told no and you should do your best to document that in some way in case there is ever a future issue. Lastly, if you are a member of a referral panel, make sure that your rejection of a client referred to you by that panel complies with the rules that panel has in place. Typically sending that client back to the referral panel is required. For example, I am on the Long Beach Bar Association’s referral panel and often receive calls from potential clients out of the blue. I take notes,
including the name and number, and spend the amount of time necessary to determine if the case is worth further investigation or not. If the answer is no, I tell the potential client to call the panel back and put the notes in a file so that I have some record of the conversation and the fact that the client was told no.
Ethical matters There are several important ethical rules that must be considered before agreeing to represent a new client. California Rules of Professional Conduct rule 3-110 states that attorneys must apply the necessary level of diligence, learning and skill, and mental, emotional and physical ability reasonably necessary for the performance of the services to the client. Attorneys without the initial requisite learning and skill can agree to representation if they either associate or consult with another competent attorney or acquire sufficient learning and skill before performance of the services is necessary. Taking on representation that you are ill equipped for in any respect is not only unethical, but it is bad business. Defense attorneys in most practice areas can sniff out weakness and inexperience and you will likely end up losing money
in the long run if you accept cases you are not fully competent to handle. Another important ethical consideration is conflicts of interest with current and former clients. The topic of conflicts of interest is well beyond the scope of this piece, but a good starting place is California Rules of Professional Conduct rule 3-300, et seq. and The Rutter Guide on Professional Responsibility. For purposes of this article, it is enough to state that establishing a system for performing a conflicts check when considering potential clients is a required step of the process of evaluating cases and clients. In sum, careful thought about the entire scope of the potential case should allow you to identify potential ethical issues, research them if necessary, and make an intelligent decision about whether you can accept the case. It is incumbent upon us to say no to any potential client where an ethical violation is unavoidable. Taking the necessary time at the outset of every case to at least think about the ethical issues can help you avoid ending up in hot water later.
Moral I strongly believe that it is our moral duty as lawyers, and especially as lawyers
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representing individuals, to say no as infrequently as possible despite the reality that we cannot possibly help everyone who comes through our doors. We are the guardians of society and are not doing our jobs if we say no to every case with a potential difficulty or pitfall. As a whole, this organization has an unbelievable wealth of knowledge, experience and talent. If we each strive to take on an additional case or two that may not have the financial upside often desired, but with the potential to help someone in real need, we can do a whole lot of good for our community. In the long term this will bolster our reputation as an organization dedicated to fighting for those in need and help to destroy the negative stereotypes often applied to us. There is also a morality to the way in which we say no. Often we can do as much good in the manner that we say no to a case as if we took it on ourselves. One of the most obvious examples is by referring the matter to a trusted colleague who can provide competent services and is likely to have the time and desire to take on the case. The value in referring cases is obvious in the fees and return referrals generated, but it is important to remember that the ultimate victory is for the client who obtains the best possible result due to the referral. I also recommend that where possible and appropriate you provide the
potential client with an honest and reasonably detailed explanation of why you cannot take their case. I have been surprised by the gratitude of several clients after receiving my explanation for why I could not take their case. A detailed and reasonable legal opinion about their case can allow a person the closure and peace of mind to move on from the events that led them to seek counsel in the first place. The negative experience of being rejected by you turns into a positive and over the long run will help to establish your reputation in the community as a professional and honest attorney. Providing the rejected client with some reasonable amount of legal explanation also does our community of lawyers a favor. If you are not willing to take the time to refer the matter to a colleague, the likelihood that any other attorney will be interested in representing the client goes down significantly. We have all spent time evaluating fatally flawed cases that have been rejected by several attorneys. Many clients are reasonable people and will make intelligent decisions if we simply give them the information and tools to do so. By providing something more than a form rejection letter at least a percentage of those seeking counsel for an issue for which there is no legal redress will be satisfied and the time of the attorney down the road will be spared.
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Finally, our powers are not limited to providing legal advice and representation. A moment of critical thought may reveal an alternative method for the client to get the assistance they need or a piece of practical advice for the person. Many of us have made powerful connections in the community that can be used, in appropriate times and doses, to help out those in need. A referral to a charity, potential employer, physician specializing in treating their condition, or other appropriate resource empowers the potential client and again can be as productive as if you had taken the case.
Conclusion Rambunctious (that’s putting it nicely) children like me got used to hearing their exasperated mothers exclaim, “What is it that you don’t understand about NO? N…O…?” It is rather ironic that during the first few months of solo practice I have learned that the answer is still quite a lot. Saying no to potential clients is an integral and everyday part of life as a plaintiffs’ lawyer. No matter how large or small the firm, how green or experienced the lawyer, it is something we all have to deal with. To say no can be done with little thought or effort and if so is probably doomed to failure. But, if we pay critical attention to the manner in which we reject each and every case we say no to, we can become masters at this art. By doing so we can make a most difficult and potentially negative part of our practices a positive. Ultimately, saying no to potential clients the right way and for the right reasons is as important to our longterm success as saying yes. John Hinman recently founded the Law Offices of John S. Hinman after spending four years at a prominent medical malpractice defense firm. He represents clients for medical malpractice, employment and personal injury civil litigation, as well as Social Security benefits appeals. A new member of CAALA, he is thoroughly enjoying the opportunity to fight for justice for individuals on a daily basis. John can be reached at john@hinmanlawfirm.com.
From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
About
Appellate Reports and cases in brief this Issue
Isaac Ehrlichto members of the plaintiff’s bar Cases ofJeffrey interest Editor-in-Chief
Duran v. U.S. Bank National Association (2014) __ Cal.4th __ (Cal.Supreme) Who needs to know about this case: Lawyers handling class actions; lawyers interested in using statistical sampling to prove or defend claims Jeffrey Isaac Ehrlich Why it’s important: Creates new rules for dealing with statistical sampling in class-action litigation Synopsis: Plaintiffs filed a class action against their employer, US Bank, claiming that the bank misclassified them as exempt employees and failed to pay them overtime. The plaintiffs were By Jeffrey Isaac Ehrlich employed as “business banking officers” Editor-in-Chief (BBOs), who sell bank products, including loans and credit lines, to small businesses. The bank classified BBOs as exempt under the “outside salesperson exemption,” which applies to employees who spend more than 50 percent of the workday engaged in sales activities outside of the office. After certifying a class of 260 plaintiffs, the trial court devised a plan to determine the extent of USB’s liability to all class members by extrapolating from a random sample. In the first phase of trial, the court heard testimony about the work habits of 21 plaintiffs (the representative witness group, or RWG). USB was not permitted to introduce evidence about the work habits of any plaintiff outside this sample. Nevertheless, based on testimony from the small sample group, the trial court found that the entire class had been misclassified. After the second phase of trial, which focused on testimony from statisticians, the court extrapolated the average amount of overtime reported by the sample group to the class as a whole, resulting in a verdict of approximately $15 million and an average recovery of over $57,000 per person. Reversed.
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The trial court’s approach contained several fatal flaws. The sample size was too small to allow an accurate projection liability for the entire class. Nor was the sample entirely randomly chosen, since 10 percent of the sample (the 2 named plaintiffs) were selected by class counsel. The court also refused to allow the defendant to present any evidence that concerned employees not in the RWG, essentially preventing the bank from showing that a substantial number of BBOs were properly classified. The trial court’s award found the bank liable to the entire class, but the plaintiffs’ own statistical expert calculated that the 13 percent margin of error would mean that 13 percent of the class was properly classified as exempt. The trial court’s computation of the number of hours that each class member worked was subject to a 43 percent margin of error. These rates were unacceptably high. The Supreme Court’s opinion discusses the law concerning the outsidesalesperson exemption, and the law concerning class certification in misclassification cases. In discussing the use of statistical evidence, the Court made the following points: • If sufficient common questions exist to support class certification, it may be possible to manage individual issues through the use of surveys and statistical sampling. Statistical methods cannot entirely substitute for common proof, however. There must be some glue that binds class members together apart from statistical evidence. While sampling may furnish indications of an employer’s centralized practices, it cannot be a substitute for evidence of commonality. • If statistical evidence will comprise part of the proof on class-action claims, the court should consider at the certification stage whether a trial plan has been developed to address its use. A trial plan
describing the statistical proof a party anticipates will weigh in favor of granting class certification if it shows how individual issues can be managed at trial. Rather than accepting assurances that a statistical plan will eventually be developed, trial courts should obtain such a plan before deciding to certify a class action. And decertification must be ordered whenever a trial plan proves unworkable. • In general, when a trial plan incorporates representative testimony and random sampling, a preliminary assessment should be done to determine the level of variability in the class. If the variability is too great, individual issues are more likely to swamp common ones and render the class action unmanageable. No such assessment was done here. With no sensitivity to variability in the class, the court forced the case through trial with a flawed statistical plan that did not manage, but instead ignored individual issues. • While class-action defendants may not have unfettered right to present individualized evidence in support of a defense, a class-action trial management plan may not foreclose the litigation of relevant affirmative defenses, even when these defenses turn on individual questions. The trial court’s decision to extrapolate classwide liability from a small sample, and its refusal to permit any inquiries or evidence about the work habits of BBOs outside the sample group, deprived the bank of the ability to litigate its exemption defense, violating its due-process rights. • A class-action trial may determine that an employer is liable to an entire class for misclassification if it is shown that the employer had a consistently applied policy or uniform job requirements and expectations contrary to a Labor Code exemption, or if it knowingly encouraged JULY 2014
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Chaudhry v. City of Los Angeles (9th Cir. 2014) __ F.3d __ Who needs to know about this case: Lawyers handling wrongful-death cases and federal civil-rights cases under 42 U.S.C § 1983. Why it’s important: Holds that California’s bar on recovery of damages for the pain and suffering of the decedent does not apply to 1983 actions, and that an estate’s wrongful-death case under California law was not duplicative of its 1983 excessive-force claim. Synopsis: Los Angeles Police Officer Joseph Cruz shot and killed Mohammad Usman Chaudhry (“Usman”) in March 25, 2008. Usman was 21. He was autistic
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a uniform de facto practice inconsistent with the exemption. In such a case, the evidence for uniformity among class members would be strong, and common proof would be sufficient to call for the employer to defend its claimed exemption. But any procedure to determine the defendant’s liability to the class must still permit the defendant to introduce its own evidence, both to challenge the plaintiffs’ showing and to reduce overall damages. • Any class-action trial plan, including those involving statistical methods of proof, must allow the defendant to litigate its affirmative defenses. Hence, if a defense depends upon questions individual to each class member, the statistical model must be designed to accommodate these case-specific deviations. If statistical methods are ultimately incompatible with the nature of the plaintiffs’ claims or the defendant’s defenses, resorting to statistical proof may not be appropriate. Procedural innovation must conform to the substantive rights of the parties. • Assuming that sampling may be an appropriate means of proving liability or damages in a wage-and-hour class action, the sample relied upon must be representative and the results obtained must be sufficiently reliable to satisfy concerns of fundamental fairness. These conditions were not satisfied here.
JULY 2014
P.J. WEST & ASSOC.
and often wandered far from home. Officer Cruz and his partner, Officer Romo, saw Usman sleeping in front of an apartment building. Suspecting that Usman might be a drug user, they stopped their police cruiser and approached him. Cruz asked Usman to show his identification. Usman complied. Cruz gave the identification to Romo, who returned to the cruiser to check for outstanding warrants. Cruz testified at trial that, while Romo was at the cruiser, Usman lunged at Cruz with a knife. Cruz drew his gun and fired four shots, three of which struck Usman in the chest and abdomen. Usman died at the scene. Usman’s estate, and his family, filed a lawsuit against various City and County defendants. The case went to trial on the Estate’s excessive-force claim under 42 U.S.C. § 1983 claim against Officer Cruz, the Estate’s assault and battery claim against the City, and the family’s wrongful-death claim against Cruz and the City. At trial, the Estate and the family presented evidence contradicting Cruz’s version of events, including evidence that Romo did not hear Cruz yell “knife”; that Usman’s DNA was not on the knife with which he allegedly attacked Cruz; that the knife was a “boot knife,” a kind of knife typically carried by police officers; and that the pattern and trajectory of Cruz’s gunshots showed he shot Usman while Usman was collapsing to the ground, rather than while he was advancing toward Cruz. The jury found for the Estate and the family. It found that Cruz used excessive force, that the excessive force caused Usman’s death, and that Cruz acted “reckless[ly], oppressive[ly], or malicious[ly].” The jury awarded $700,000 to the family on their wrongful death claim under state law, and $1 million, based on Usman’s pain and suffering, to the Estate for its excessive force claim under § 1983. The district court struck the pain-and-suffering award because California law does not allow a recovery for the decedent’s pain and suffering. (Code Civ. Proc., § 377.34.) Reversed. Under California’s survival statute (Cal.Civ.Proc.Code, § 377.20) Usman’s
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The Advocate Magazine — 115
Appellate Reports — continued
section 1983 claim survived his death. In survival actions, however, section 377.34 precludes a decedent’s estate from recovering for the decedent’s pre-death pain and suffering. Because federal law is silent on the measure of damages in section 1983 actions, California’s disallowance of pre-death pain and suffering damages governs unless it is inconsistent with the policies of section 1983. The district court held that section 377.34 is not inconsistent with section 1983. The Ninth Circuit disagreed. One of Congress’s primary goals in enacting section 1983 was to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments. The policies underlying section 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law. The practical effect of section 377.34 is to reduce, and often to eliminate, compensatory damage awards for the survivors of people killed by violations of federal law. Section 377.34 limits damages in survival actions to the victim’s pre-death economic losses. In cases where the victim dies quickly, there often will be no damage remedy at all under
section 377.34. Even in cases of slow death where pre-death economic damages might be available, section 377.34’s limitation will often be tantamount to a prohibition, for the victims of excessive police force are often low-paid or unemployed. The same is likely to be true for prisoners whose death is caused by the deliberate indifference of jail or prison officials in violation of the Eighth Amendment. Following the precedent in three other circuits, the court held that California’s prohibition against pre-death pain and suffering damages limits recovery too severely to be consistent with section 1983’s deterrence policy. Section 377.34 therefore does not apply to section 1983 claims where the decedent’s death was caused by the violation of federal law.
Short(er) takes Class-action settlement objections; due process violations: Litwin v. iRenew Bio Energy Solutions, LLC (2014) __ Cal.App.4th __ (2d Dist., Div. 1) Plaintiffs filed a class-action lawsuit against defendant for false advertising and unfair competition. The case settled,
and the trial court approved the settlement. The notice sent to absent class members informed them that, in order for the court to take their objections into account, they had to be presented personally or through counsel appearing at the final settlement-approval hearing. Reversed. There was no need to require objectors to the settlement to appear personally at the hearing, or to go to the expense of hiring counsel to do so. Requiring the objectors to present their objections in person or through counsel at the hearing violated their due-process rights. Employment law; change of liability theory at trial; disparate impact vs. disparate treatment: Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) __ Cal.App.4th __ (2d Dist., Div. 3.) Plaintiff, a teacher at a private school, sued the school for age discrimination. Her complaint was based on a disparate-treatment theory. But just before opening statement at trial, she filed a brief suggesting she intended to proceed on a disparate-impact claim. The trial court precluded her from proceeding on the new theory. The jury returned a defense verdict, and she
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appealed. Affirmed. “Disparate treatment” is intentional discrimination against one or more persons on prohibited grounds. A claim of “disparate impact” differs from a claim of disparate treatment in that a plaintiff is not required to prove discriminatory motive when claiming disparate impact. Disparate impact exists where, regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class. Rosenfeld’s complaint pled only disparate treatment, that is to say, that the school intentionally discriminated against her based on her age. She did not plead disparate impact, i.e., that the school had a facially neutral practice or policy that bore no manifest relationship to job requirements but which, in fact, had a disproportionate adverse effect on older employees. Her case management statement was consistent with her pleadings. The facts that she (a) sought to continue the school’s summary judgment motion to obtain discovery for her statistical expert; (b) proposed a CACI instruction on disparate impact; and (c) filed a trial brief on the disparate-impact issue did
not provide timely notice to the school that she intended to proceed on a disparate-impact theory at trial.
governed by 28 U.S.C. § 1332, the citizenship of nationally chartered banks is governed by 28 U.S.C. § 1348, which provides in pertinent part: “All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” In Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 314-17 (2006), the Supreme Court held that national banks were not citizens of every state in which they did business. While that case did not address whether national banks are also citizens of the state which is their principal place of business, the majority held that its reasoning suggested that a national bank is “located” where it has its main office. Hence, there was complete diversity and removal was proper. Judge Gould dissented.
Removal; Diversity of Citizenships; National Banks; Wells Fargo: Rouse v. Wachovia Mortgage, FSB, 747 F.3d 707 (9th Cir. 2014). Robert and Victoria Rouse, California residents, filed suit against Wells Fargo Bank, NA and its Wachovia mortgage division in the Superior Court of California, asserting claims under state and federal law pertaining to their home loan and deed of trust. Wells Fargo’s principal place of business is California, but its designated “main office” is in South Dakota. Wells Fargo removed the case to federal court based on federal questions and diversity of citizenship. After the district court dismissed their federal claims and the Rouses amended to state only state-law claims, the district court remanded the case to state court, finding that Wells Fargo was a citizen of both the state where its main office was located and where its principal place of business is located. The bank appealed. Reversed. Unlike state-chartered banks or other corporations whose citizenship is
Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine.
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The Advocate Magazine — 117
From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
Telling the stories to the jury
It works in the courtroom and will work in the initiative battle
The Pack Patient Safety Act This theme occurred to me recently when I was thinking about the battle that trial lawyers and consumer advocates are waging to pass the Pack Patient Safety Act that will be on the California ballot in November. If passed, it will require drug and alcohol testing of doctors; crack down on prescription drug abuse and ensure that injured patients and their families can hold negligent doctors accountable. For several months trial lawyers have learned about the Pack Act, how it came to be on the ballot, how the public feels about it and what the likelihood is of it passing. You were given lots of 118 — The Advocate Magazine
JULY 2014
information: facts, polling numbers, focus group results and statistics. Honestly, not everyone felt connected. That changed for CAALA’s Board of Governors on May 15 when Bob Pack came to their monthly meeting. Pack is a Silicon Valley technology pro, and he can put out numbers and statistics with the best of them. But the way that he connected with CAALA’s board members that night was to tell his story and the story of his two children. Troy and Alana Pack lost their lives while walking with their mother to a neighborhood ice cream shop. A prescription drug abuser high on Vicodin passed out at the wheel of her car and killed them a few blocks from their home. Carmen and Bob Pack have worked ever since to change the law so that other parents won’t have to go through the horror that they have endured. It wasn’t the facts that moved the CAALA board members, it was the story.
Changing public opinion I want to give you another example of how telling stories can affect public opinion. Since February, General Motors has been recalling cars with an ignitionswitch defect that can cause a loss of power in some of their cars. The numbers are high − 2.6 million small cars were recalled. But no one seemed to care and GM never revealed the names of people who lost their lives because of the defect, even though the first incident occurred in 2004. They never even acknowledged to the families that the defect may have resulted in the death of their loved ones. At the end of May, The New York Times published the names and stories of 13 people who died as a result of the defect. The article began on page one of the paper and continued on two full pages. The headline was “13 Deaths,
Untold Heartache, from G.M. Defect.” The newspaper told the stories of each of the 13 victims. There were pictures of each and recollections from family and friends. It was emotional, moving and powerful. It not only changed public opinion; it caused General Motors to finally admit to the sad results of their decision to not reveal the defect. The campaign to pass the Pack Patient Safety Act will be intense and frustrating. The medical industrial complex will flood the airwaves with commercials filled with facts and statistics about how an initiative that protects patients isn’t needed and will cost too much money. Those that seek to protect patients have an advantage, though. They have the stories. Each CAALA member has had an experience with someone who has been harmed by preventable medical negligence and has nowhere to turn for relief. Tell those stories. Learn about Bob Pack’s story and tell it to your friends and neighbors. CAOC has created a terrific Web site at www.38istoolate.com that tells the stories of victims of medical negligence who would have been protected by the Pack Patient Safety Act. Jim Perdue writes in his book that “The most effective statements in a trial aren’t arguments, they are stories.” The “jury” in the Pack Patient Act “trial” is the voting public. Between now and November, follow the advice of Gerry Spence, David Ball, Rick Friedman and Eric Oliver and tell the stories to the jury.
On the bookshelf in my office are about 20 books on trial advocacy. The authors are familiar to every successful trial lawyer: Gerry Spence, David Ball, Rick Friedman, Eric Oliver, Jim Perdue, etc. The oldest one was written in 1957 by CAALA founding member Elmer Low; the most recent were published a few months ago. Whether it’s Spence, Ball, Friedman, Oliver or Low there’s a common message in every one of the books: “Tell the Jury a Story.” Elmer Low writes: “Your approach should be that of a man telling a story to a group of friends.” David Ball says “Good harms testimony is story based. There’s little the defense can do to wipe out that ministory or diminish its effectiveness.” Eric Oliver’s book is Facts Can’t Speak for Themselves: Reveal the Stories That Give Facts Their Meaning. He writes “It is the life experiences and the stories generated and valued from those experiences of each person that will decide the case.” The title of Jim Perdue’s book is even more direct: Winning with Stories: Using the Narrative to Persuade in Trials, Speeches & Lectures.
From the President Casey Johnson
Orange County Trial Lawyers Association
Treading water
Changes are in the air By the time this article is published, California will likely have a budget in place for 2014-15. Whether the budget ultimately approved is that proposed by the Governor ($160 million returned to the Courts), the Senate ($229 million restored to the Courts), the Assembly ($239 million restored to the Courts), or something in between, the restored funding will be insufficient to allow California Courts to continue operating at their current levels. This means deeper cuts to services and further denial of justice negatively impacting all court-users in California. The visionary and resourceful leadership of the Orange County Superior Court must be applauded for its continued efforts at increasing court efficiencies to minimize the impact of significantly reduced funding on court users and employees. But even Orange County’s court leaders – regularly recognized as some of the most effective and successful across the state – can only stretch inadequate funding so far. While Orange County has been able to significantly limit the layoffs and courtroom closures that have befallen other counties, additional changes are coming. First, I will provide a bit of good news (relatively speaking). It appears that the unlimited civil division in Orange County will not be moving to a Master calendaring system. This will allow attorneys and litigants the tremendous benefit of remaining with the same judge throughout the pendency of a matter, including through trial, so long as the Judge is not already engaged. The administration of civil justice benefits greatly from a judicial officer seeing a case through from start to finish. However, Orange County is set to go the way of most other counties in California, and it is anticipated that by the time this article hits mailboxes, court reporters will no longer be provided in civil courts, except for trial or other hearings where live testimony is to be taken. Although an obvious inconvenience and
additional cost to litigants, comparatively speaking it is a relatively modest reform. Check the Orange County Superior Court’s Web site at www.occourts.org for a formal announcement and further updates.
Patient safety in the national spotlight While consumer advocates in California have spent the first half of 2014 preparing for the once in a generation opportunity to codify patient safety measures that will benefit all Californians and ensure accountability – the theme of patient safety has coincidentally taken center stage in studies and research across the country. From a University of Florida study confirming that physicians are five times more likely than the general population to have a prescription drug abuse problem to a Towson University (Maryland) report confirming that one in five Medicare recipients will fall victim to medical malpractice, the evidence continues mounting to confirm what consumer advocates have long known − that substance-abusing doctors are causing costly and preventable medical injuries and complications to an unsuspecting American public. Californians will not sit back and allow the individuals with whom they trust their physical wellbeing to seek exclusion from drug testing – drug testing to which bus drivers, pilots and even nurses are already subjected. This is particularly in light of the evidence that doctors are more likely than any of these professionals to have a substance abuse issue. The Troy and Alana Pack Patient Safety Act, in addition to saving lives and serious injuries to innocent bystanders, will require the use of the CURES database to prevent drug seekers from obtaining costly and harmful narcotic medications, which will result in the additional savings of hundreds of millions of dollars in health-care costs. And last, the Patient Safety Act will finally allow victims of medical malpractice to hold wrongdoers more accountable,
by allowing for an inflationary increase in general damages. Our opponents will surely focus on this aspect of the bill with claims of rising health-care costs – shortages of doctors − the same baseless claims that led to the enactment of MICRA almost 40 years ago. Fool us once, shame on you. Fool us twice – not going to happen. The time is now, and the impact of our efforts in the coming months will reverberate for years and decades to come.
OCTLA’s Second Act: 2014 OCTLA has an incredibly ambitious second half of the year planned. Monthly dinner programs will continue in July, September, October and November. Justice David Thompson will present an extraordinary program on substance abuse and mental illness on July 24, 2014 at the Tustin Ranch Golf Club. As we transition from Summer to Fall, OCTLA will again co-sponsor the night at the races at Del Mar with CAOC’s Young Lawyers Division on August 15. On September 7, 2014, OCTLA will host the annual Bench and Bar Softball Game at Grant Howald Park in Corona del Mar. On Columbus Day, October 13, 2014, OCTLA will host its annual Bench and Bar Golf Tournament at El Niguel Golf Course in Laguna Niguel. We expect a sell-out again this year, so register your foursome early! Before celebrating the end of the year at our holiday luncheon at Original Mike’s in Santa Ana (December 12, 2014), OCTLA will honor its Top Gun Trial Lawyers of the Year and raise much-needed funds for High Hopes Brain Injury Program during silent and live auctions at The Montage in Laguna Beach on November 22, 2014. Be sure to check out OCTLA’s new Web site at www.octla.org for more information on these and other events, including registration, sponsorship and donation opportunities. Hope to see you soon! JULY 2014
The Advocate Magazine — 119
Sacramento Update
Washington Update
By Nancy Peverini CAOC Legislative Director
By Linda Lipsen CEO, American Association for Justice
Got Junk? (Support SB 1188)
AAJ’s Minority Caucus Lobbies on Capitol Hill Earlier this spring, AAJ welcomed members of our Minority Caucus to attend our biennial Minority Caucus Lobby Days in Washington, D.C. Prior to lobbying congressional offices, AAJ’s Public Affairs team provided a comprehensive briefing on the topics and bills on which members would lobby: the Arbitration Fairness Act, the Service Members Civil Relief Act (SCRA), and the Toxic Substances Control Act. Following the briefing, in the evening, caucus members attended a congressional reception on Capitol Hill where they had an opportunity to interact with members of Congress and their staff. The next morning, Minority Caucus members conducted successful meetings with approximately 80 congressional offices from their respective state delegations in both the House and Senate. Attendees discussed issues including sponsoring bills to end forced arbitration and opposing TSCA legislation that preempts state remedies. Based on the feedback we received, this event was a great success and AAJ looks forward to the next opportunity to host the Minority Caucus in D.C. We encourage all interested AAJ members to participate in one of our sponsored Lobby Days in the future. If you want additional information about upcoming events or are a state trial lawyer association that wants to plan a Lobby Day, please contact Tricia Cooley at patricia.cooley@justice.org.
We need your help supporting an important Consumer Attorneys of California-sponsored bill that seeks to hold manufacturers liable for fraud when selling junk products. The measure, which will be heard in the Capitol shortly, addresses a key consumer protection issue. Until 2006, California law protected consumers when businesses engaged in fraudulent conduct to sell products; for example, if they knowingly hid product defects that turned TV screens hazy or caused computers to melt down or crack or washing machines to prematurely die. The important tool was the Consumers Legal Remedies Act. Signed into law in 1970, the CLRA has been used to hold businesses accountable for fraud if they misrepresent information about a known product defect – be it a TV, computer or car. As such, the CLRA has served as a strong disincentive to duplicitous and deceitful marketplace behavior. But recent court rulings have let businesses off the hook, undermining long-standing California case law and undercutting this cornerstone of California’s consumer protections. The confusion dates back to 2006 and a California state appeals court ruling in the case of Daugherty v. American Honda Motor Co. Ever since the Daugherty decision, CLRA fraudulent omission claims in federal courts have been rejected if a product or service did not pose a demonstrable risk to consumer health or safety. In short, it had to maim or kill to be declared a fraudulent omission. That sort of extreme legal threshold was never the intent when state lawmakers crafted the CLRA as a weapon in the fight against consumer fraud and duplicitous merchants. That is where SB 1188 comes in. Authored by state Sen. Hannah-Beth Jackson (D-Santa Barbara) and sponsored by CAOC, the measure specifically clarifies long-standing California law that a company is committing fraud when it fails to disclose a known defect, even if it’s not a threat to your safety. The measure faces fierce opposition from the high tech and industrial lobbies and is on the California Chamber’s “Jobs Killer” list. But you and everyone you know – friends, neighbors, family – can help by urging your lawmaker to support SB 1188. The measure will be heard soon in the state Senate. We need your help in winning support. Our partner in this effort is the Consumer Federation of California. Please visit their Web site (www.consumercal.org) to learn more. They also have a good action page that finds your lawmaker and pushes a message to them automatically. It’s as easy as knowing your zip code, so step up today to help. 120 — The Advocate Magazine
JULY 2014
The Regulatory Front: Social Security Administration & Changes in Evidence Requirements for Disability Claims Recently, the Social Security Administration (SSA) released proposed rules requiring heightened evidence demands for attorneys in disability proceedings. Specifically, the rules require attorneys to submit all adverse evidence related to their client’s case. Because the proposed regulations would both damage attorneyclient interactions and change the non-adversarial character of the adjudication process for disability claims, AAJ filed comments strongly opposing the changes in SSA’s evidence requirements. We will continue to monitor this rule as the SSA reviews stakeholder input and implements final regulations in the coming months. “By the numbers” To date, 38 bills containing tort “reform” and anti-civil-justice provisions have been introduced in the 113th Congress, including S. 2196, the Good Samaritan Health Professionals Act of 2014, introduced by Senator Lisa Murkowski (R-AK). This bill seeks to provide certain protections from civil liability and sets a dangerous precedent by preempting state law. AAJ’s Public Affairs team will continue to monitor this legislation and work to ensure that this bill, and others like it, is never enacted into law.
OPINION IN THE COURTROOM
The great helmet myth
Does the helmet protect you? Depends on which side of the aisle you are sitting Every construction job in the world insists on everyone walking around wearing hard hats. Many ski resorts now insist on Booth helmets. And, of course, there is a raging controversy over brain injuries in football, where helmets have been worn for decades. Do any of these so-called safety devices do any good? Some years ago, we had a client who was hit in the head with a large chunk of concrete which fell several stories on a construction project. He was, of course, wearing the almighty hard hat. The hard hat (Exhibit 1) had a clean hole in it as did his head. Since the hard hat is built like a World War I helmet, it offers no protection from objects coming from any angle except directly down. Then, why, may we ask are hard hats mandatory where workers are not exposed to any overhead risk at all, such as digging a ditch? The better question is whether hard hats prevent any injuries at all to the brain or skull.
Football The answer may come in the sport of football. The National Football League has just paid a massive settlement for brain injuries to past players, all of whom wore helmets. Could it be that the thin leather helmets which sat directly on the
head decades ago were just as good or bad? Do today’s players take risks they would never do if they had no helmet at all? There is a very large label on the back of football helmets which can almost be read on TV which reads: “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.”
Ski Injuries Actress Natasha Richardson died on a bunny hill at a ski resort when she fell on her head into soft snow while hardly moving. She was not wearing a helmet. Probably the greatest race car driver in history, Michael Shumacher, is in a medically induced coma as a result of brain injuries incurred while skiing. He was wearing a helmet but was engaged in a very risky run. The National Ski Areas Association reports that despite the fact that 70 percent of skiers and snowboarders are now wearing helmets (nearly triple the number from 2003), there has been no reduction in the number of fatalities or brain injuries. It might be due to people taking greater risks because they rely on helmets for protection.
Motorcycle Helmets It has long been true that people driving motorcycles are required to wear
helmets. We had a case against a helmet manufacturer where the rider’s helmet fell off just before a crash due to a defectively designed clasp. The defense was that the helmet would not have done him any good anyway. The defense expert relied on some very fancy tests in which he demonstrated that his defendant’s company made helmets that were essentially useless.
Injuries Head and brain injuries are not all due to impact on the head or helmet. The brain is bounced around inside the skull even without a skull fracture or penetration. There can be tearing of delicate brain tissue and blood vessels due to rotational forces. The bottom line is that attorneys should not automatically assume that a client or decedent who did not wear a helmet is at fault in any kind of sport or activity. There may very well be depositions out there from the defense’s own experts which dispute their main contention — namely, that the helmet would have done any good at all. Larry Booth is the author, along with his son Roger Booth, of the 600-page Personal Injury Handbook (www. JamesPublishing.com) and has tried hundreds of jury trials.
By Larry Booth
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The Advocate Magazine — 121
Calendar August 28 – August 31, 2014 CAALA Vegas Convention The Wynn Las Vegas
Consumer Attorneys
ASSOCIATION OF LOS ANGELES
CAALA
Consumer Attorneys Association of Los Angeles
Board & Committee Meetings Executive Committee CAALA Offices Downtown Los Angeles, 6:00pm July 10, Sept 11, Oct 2
800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org
Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm July 17, Sept 18, Oct 16 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Sept 18, Oct 16 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm July 8, Sept 16, Oct 14
Advertiser’s Index ADR Providers Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .84 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .80 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .20 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .15 Watkins, Shirley . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Announcements and Career Opportunities CAALA Affiliate Membership . . . . . . . . . . . . . . . . . . .91 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .93 CAALA VEGAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CAALA VEGAS Registration . . . . . . . . . . . . . . . . . . . .32 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Mahacek, Jim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Attorneys - Accepting Referrals Atigechi Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .25 Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Cheong Denove Rowell & Bennett . . . . . . . . . . . . . . .81 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .62-63 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .27 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck LLP . . . . . . . . . . . . . . . . . . . . .40 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . .100 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .61 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . .123 Law Office of Michels & Lew . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .17 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .21
122 — The Advocate Magazine
JULY 2014
Attorneys - Accepting Referrals (cont.) McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Mesriani Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .19 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .71 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shegerian & Associates . . . . . . . . . . . . . . . . . . . . . . .13 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . .33 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Senators Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Graphics/Presentations/Video (cont.) CSC Anatomy Arts . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Legal Graphics . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . .107 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Court Reporters Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .18
Investigators Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . .106
Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .52 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Expert Witnesses – Medical Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .85 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .43 Expert Witnesses – Technical & Damages Balian & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .116 Collins, Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Phillips, Fractor & Company . . . . . . . . . . . . . . . . . . .114 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .97 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Farber, Patrick (Struct. Stlmts.) . . . . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .49 Millennium Settlements . . . . . . . . . . . . . . . . . . . . . . . .28 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Summit Structured Settlements . . . . . . . . . . . . . . . . .100 Valdez Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .73 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .23 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .69
Legal Marketing Berbay Corporation . . . . . . . . . . . . . . . . . . . . . . . . . .42 Direct Response of America . . . . . . . . . . . . . . . . . . . .68 New Standard Solutions . . . . . . . . . . . . . . . . . . . . .109 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . .115 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Legal Support Services USA Express Legal & Investigative Services . . . .68,117 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .95 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .48 North Valley Eye Medical Group . . . . . . . . . . . . . .101 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Polygraph Investigations Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . . .41 Software HiPerSoft Corporation . . . . . . . . . . . . . . . . . . . . . . . .59 Verdict Reports Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
I refer all of my securities cases to Marc Zussman and I have also worked with him. He is an excellent lawyer. — Brian J. Panish Attorney
Refer your Securities Arbitration (FINRA) or Litigation Cases for a Generous Referral Fee. With a success rate greater than 90%, we are well equipped to maximize your clients’ recovery on a wide variety of securities law-related matters. We take pride in our referral relationships and our ability to share attorneys’ fees with referring attorneys. We represent investors who have lost money due to mismanagement of their portfolio by their investment professionals. We accept cases from the 2008/2009 market crash. SPECIALTIES INCLUDE: • Underperformance of stock in a bank trust account • Unsuitable investments or strategy • Fraud • Private Placements • Churning/Reverse Churning • Unauthorized Trading • Overconcentration/Asset Allocation • Margin Trading • Mutual Fund Fraud • Negligent Supervision and more
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From the President Geoffrey Wells
Consumer Attorneys Association of Los Angeles
Wrongful death of a child No justice. No peace
Reasonable damages Honestly, the amount of damages in the wrongful death case of a child is never about anything “reasonable.” There is nothing reasonable about the loss of a child … ever! Our children are our most precious and unique gifts 124 — The Advocate Magazine
JULY 2014
to our families and to our society. They are the future of our societies. When I looked at the pictures in the newspapers of the various parents who lost children in the recent University of California Santa Barbara shootings, I was reminded of the enormity and personal nature of such a loss. What then is the answer in a case involving the death of a child? I think really these cases are about accountability. As a parent, we want the very best for our children. If we lose a child due to someone else’s negligence, we want the world and society to hold that person accountable. The amount of damages in such a case many times is a reflection of the accountability and responsibility of the defendant. As a trial lawyer, you will most likely handle a wrongful death case involving a child some time during your career. These cases are a tremendous responsibility and when you handle these types of cases, you must do so with extra patience and caution and special effort. The process of going through these types of cases is especially grueling for the clients. The outcome of the case “good” or “bad” will have the most profound effect on your clients, probably for the rest of their lives. Recently during jury selection in the wrongful death of a child case, we used a questionnaire that asked potential jurors about these types of cases. One of the questions that was asked was “What do you think about someone who brings a case for damages as a result of the death of their child?” Some of the responses might shock
you. They ranged from one potential juror stating in response to this question “pond scum.” Another potential juror wrote in response to this question that they would only be okay with a parent suing for damages for the death of a child if the defendant was negligent on purpose. Obviously, these potential jurors have been somehow affected by all of the insurance propaganda and have deep rooted feelings on these types of cases. You need to get rid of those jurors and get people who will be fair and honest in their deliberations and reflections on this type of loss in our society.
Finding justice The responsibility of handling a case involving the death of a child is something that you will never forget. Possibly, you might help a parent or two find a bit of closure and accountability in their lives by bringing one of these cases to a successful conclusion. Hopefully, a case of this magnitude might help with some type of public safety in the future and prevent another family from the unspeakable pain of dealing with the wrongful death of one of their children. I honestly believe that the resolution of these types of cases does help the parents find justice and some peace. Good luck and always walk with your head held high as a trial lawyer, knowing that what we do matters every single day.
Many of us have heard the slogan “No Justice, No Peace.” If you think about this slogan, it is a phrase that is the essence of accountability that can be obtained in a civil justice case. Many times, I have heard our detractors state in even the most egregious case involving the death of a child, something to the effect of “what difference does the money make – it won’t bring the child back.” While this statement is technically accurate, it really misses the point. I have had the opportunity to represent numerous parents who have lost a child due to the negligence of others. Without question, every one of these parents faced the most difficult times in their lives during this loss. These cases can be the most difficult to handle emotionally and legally for all of us civil trial lawyers. I think that the point of many of these cases is not an attempt to have the damages making the “parents whole.” In a wrongful death case involving the death of a child, that goal is not really attainable for the parents. Many times during the pendency of a wrongful death case involving the death of a child, there will be a discussion with the parents about how much money we should ask for. Another question might be: What is the reasonable range of damages for these types of cases.
& LAW LAW OFFICES OF MICHELS & LEW MEDICAL MALPRACTICE • PERSONAL INJUR INJURY Y
Verdicts and Settlements Totaling Over 10 Figures.
BRADFORD S. DAVIS, M.D.
MARTIN P. WENIZ
ELIZABETH HERNANDEZ
PHIL MICHELS
JIN LEW
STEVEN B. STEVENS
JEROME J. CALKINS
OUR TEAM • CAALA Trial Lawyer of the Year • CAALA Appellate Lawyer of the Year • Board Certified Physician • President Elect KABA • CAALA Board of Governors
11755 Wilshire Blvd. #1300
michels-lew michels-lew.com .com
Los Angeles, CA 90025
310.444.1200