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Journal of Consumer Attorneys Associations for Southern California
& Evidence
Like a river, a trial must flow smoothly towards its end. Coping with sub rosa video at trial Use of the mirroring technique at trial Litigating childhood sexual-abuse cases Motions in limine — pretrial and trial strategies Discovery and police officers: the Pitchess process It’s complicated: When fact patterns present difficulty Getting organized for trial: Start with your jury instructions Dismantling opposing experts and rehabilitating retained experts A single mom talks about practicing law and practicing parenthood Vehicle cases: Negligent entrustment and permissive use Medical malpractice: Strategies to improve economic damages
February 2014
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Contents Volume 41, Number 2, FEBRUARY 2014
Editor-in-Chief Jeffrey Ehrlich Associate Editors Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, Ibiere Seck, Geraldine Weiss 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 Michael 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 President Secretary Casey Johnson
President-Elect Ted Wacker
First Vice President Vincent Howard Second Vice President H. Shaina Colover
Third Vice President Geraldine Ly
B. James Pantone
Treasurer Jonathan Dwork Parliamentarian Jerry Gans Immediate Past President Scott Cooper
Executive Director Janet Thornton
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
POSTMASTER:
Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine
FEBRUARY 2014
Features:
organized for trial 8 Getting Use the jury instructions as the basis for your trial planning. Christa Ramey Ramey
complicated: Handling cases with difficult 16 It’s fact patterns
Be open, tell the truth and bring out your problems before the defense does. Browne Greene
malpractice: Strategies to improve economic 24 Medical damages Challenging the defense experts’ calculations is vital to maximize damages. Robert Ounjian
childhood sexual-abuse cases 40 Litigating Focus your discovery on who knew what, and when, while limiting the minor’s involvement in the process. David Ring and Natalie Weatherford
with sub rosa video at trial 48 Coping The key to keeping sub rosa videos from being a surprise at trial
1
is to deal with the issue before trial. Christopher Dolan
and police officers: the Pitchess process 56 Discovery Discovery relating to a peace officer’s job performance or disciplinary actions must follow a unique, statutory process. Alyssa Kim Schabloski
beyond the driver’s seat 76 Looking Proving negligent entrustment or permissive use in vehicle liability cases. Kimberly Wong
argument as a persuasive tool in negotiation 84 The Monty Python can teach us a lesson. Jeffrey Krivis
opposing experts and rehabilitating retained 86 Dismantling experts Strategies to minimize the damage inflicted on your expert while at the same time impeaching the defense expert. Gary M. Paul 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
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law and practicing parenthood 88 Practicing A single mom and PI attorney tells you how she does it – and why. Aimee Kirby
in limine 92 Motions Motions in limine play a critical role in pretrial and trial strategies. Elizabeth A. Hernandez
mirror on the wall 96 Mirror, Use mirroring as a technique to improve rapport with jurors. John F. Denove
Departments:
98
Appellate reports and cases in brief FEHA: Disparity between size of fee award and underlying damage award. Muniz v. UPS
104
G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington
106 107
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS
108
F ROM
Jeffrey Isaac Ehrlich
102
F ROM
THE
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
Language and the written word Advice to lawyers from two famous authors.
Stuart Zanville
103
F ROM
THE
CAALA C ONNECTION & R ESOURCE C ENTER Welcoming the newest members to CAALA
P RESIDENT
Orange County Trial Lawyers Association
O.C. Justice: Access and accountability Justice is not an oxymoron.
Casey Johnson
THE
P RESIDENT
Consumer Attorneys Association of Los Angeles
Reflections on representing senior citizens How to measure how much we do really matters.
Geoffrey Wells
On the cover: Main Image: El Capitan at Sunset | Rick Whitacre | www.thinkstockphotos.com
FEBRUARY 2014
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Christa Ramey Associate Editor
Getting organized for trial Use the jury instructions as the basis for your trial planning In the months leading up to trial I am already beginning to think about witness order, and about how and through whom I will introduce my exhibits. This process actually begins with the very basics – the jury instructions. After these are reviewed, I determine my story and how I want to tell it at trial: the witness order, the documents and other exhibits I need in evidence, and the attack plan for accomplishing these goals.
The basics
It is easy advice to give and not always easy to follow – make sure you are seeking out and discovering the evidence you need early in litigation. This is only done by taking a look at the jury instructions. If I am doing things right, I have thought about instructions when I signed the client up, when I drafted my complaint, and when I was drafting and reviewing discovery responses. So once I begin my final trial preparation, these instructions should be handy. You should draft an outline based upon the instructions and organize your evidence and witnesses according to the instructions. Using the jury instructions, I organize evidence and witnesses into two categories (1) Liability and (2) Damages. This will shape how and when you put the evidence and witnesses in at trial. Now some witnesses may fall into both categories, particularly your client. I personally like to tell my story in a way that makes chronological sense. I like to begin with the incident which brought us there in the first place – e.g., the car crash, the dog bite, the medical procedure, etc. Juries want to hear a story. If things are not presented in a chronological order, you run the risk of confusing the jury, which will not help. Therefore, I put my liability witnesses on first, followed by my damages witnesses. 8 — The Advocate Magazine
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The David Ball approach
Witness order is important. You want to keep the jury interested and thinking about the fault of the defendant from the very beginning of your case. Many jury consultants and trial attorneys have filled chapters in books regarding advice on this point. I tend to follow the “Ball Approach” described by David Ball in chapter 7 of his invaluable book, David Ball on Damages: A Plaintiff ’s Attorney’s Guide for Personal Injury and Wrongful Death Cases. Ball points out that harm and money should be discussed throughout your case-in-chief, this way the jury is always thinking about money during your case. While I did mention above your witnesses should be separated into liability and damages witnesses, this is consistent with this approach. Each of the liability witnesses is, on some level, able to discuss harm. For instance, a witness to the accident might be your first witness at trial. This individual can speak to the facts of the accident, what the defendant did wrong (i.e., liability), but he or she can also discuss harm – the severity of the impact. Ball further suggests that your first witness should be purely about what the defendant did wrong. I am a firm believer in this approach. This could be a third-party witness to the car crash or possibly the defendant. I like a police officer first in line. Police are generally viewed as trustworthy witnesses. Depending upon the case, these witnesses are almost universally shorter witnesses at trial as well. The jury should understand from the very beginning that the defendant’s conduct is the conduct that they are judging – not the plaintiff ’s conduct. If you put your client on first, the jury will be hearing the case from your client’s perspective first. Additionally, you
will have to talk about all of your client’s damages at the beginning of trial. Your client would then be on the stand for a while on cross-examination where the defendant’s attorney will be continuously calling into question your client’s credibility. I prefer my first witness to have a short cross; one that can do little or no damage to your case. You want to have a good first day of trial. This is beneficial for a number of reasons. First, your jury does not want to be there. There are a million other things that they would rather be doing than sitting in this jury box and listening to someone’s troubles. If you have a long first witness, like your client, you run the risk of having the jurors believing the trial is going to be a lot longer than it will ultimately be. This could cause them to tune out or lose interest early. Second, if your first witness has a long cross, you run the risk of you and your client losing credibility with the jury. Ball suggests that your first witness should be crossproof. I am not sure there is a witness who is cross-proof, but a defendant or a third-party witness to the accident comes about as close to this as possible. I prefer a third-party witness whenever possible. This person has no stake in the litigation. They are just relaying what they saw. Ultimately I begin whenever possible with police, followed by other third-party witnesses, followed by the defendant. After this, I like to move on with a pure liability expert, like an accidentreconstructionist, or other expert discussing the fault of the defendant’s conduct based upon the facts that the jury just heard. At this point, I have gained the jury’s trust and have given them short witnesses. They have just heard about a bad car crash or vicious dog bite.
Organized continues
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I believe it is a good time to discuss fault.
The client’s direct examination
I like to place my client’s direct examination after my liability expert but before any causation expert (biomechanical engineer) or a purely damages expert (treating doctor). I will end any trial with folks who can discuss the plaintiff ’s damages purely from the outside – that is, not a doctor. I like finishing with a spouse or friends of the plaintiff who can discuss the changes in the plaintiff ’s life since the harm he or she sustained. This is a more powerful way to end a trial, and the jury is thinking about harm and losses. Just as much as needing to start strong, you need to finish strong. The
last thing you want is to finish your casein-chief with a boring or bad witness, just before the defendant’s attorney is about to start the defense case. Another thing to consider in witness order is witness availability. Some judges are also very strict about down time for a jury. That is, they want your witnesses to go until the scheduled breaks. The last thing a judge wants to hear at 3:00 in the afternoon is that you have run out of witnesses. I have heard judges say that they will make you rest your case if this happens. Keep your witness schedule handy. Make sure you have telephone numbers, subpoenas and on-call letters handy. There are times during trial that I have one or more witnesses waiting while I have a witness on the stand.
STATE BAR DEFENSE James Kamanski 2012, 2013 and 2014 Southern California Super Lawyer
www.lawkamanski.com • james@lawkamanski.com 888.907.4111 • 888.395.0349 fax 6601 Center Dr. West, Ste. 500, Los Angeles, CA 90045
Preparing your witnesses Yes, you need to be preparing all of your witnesses. In the past, I have had doctors or other witnesses testify so horribly that I was uncomfortable. Do not assume just because you have sent your expert everything they have requested and everything you need them to review that they have, indeed, looked at it. Also do not assume that because your expert has testified numerous times at trial and deposition they will therefore be fine on the stand. You need to personally schedule appointments and sit down with witnesses before trial. In most cases this means “in person,” particularly with treating doctors. At times, we all have our treating doctors testify as expert witnesses, we give them medical billing and prior treatment records so that their opinions are fully developed and not vulnerable on cross examination. By way of example, your client may have had prior history of complaints to the same part of his/her body as are being claimed in the subject incident. We have all experienced locating prior medical records with a complaint of neck pain or low-back pain, for instance. This needs to be discussed in their direct examination and explained in a way that your client does not lose credibility. Recently in trial, I knew that my client had seen a chiropractor from time to time in the past before a rather horrific car crash that was the subject of our case. I asked my doctor on direct about prior neck or back complaints, and to my horror, my expert stated that there were not any! Well, I had discussed this with my expert; he had the records; yet, he testified there were no prior complaints to neck and back. At this point I had to walk him through the past medical records and gently impeached him. This is not a position you want to be in during trial. You should also be preparing your lay witnesses, again in person. Your lay witnesses may need a little more time to prepare. Lay witnesses can be some of the most powerful witnesses at trial. They
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are not slick; they are nervous. This all lends credibility to them. But, you do not want them so nervous that they do not testify well. Use your instincts when preparing these witnesses, if you do not think they will do well, don’t put them on the stand. Further, keep in mind that your conversations with these witnesses are not privileged. I always tell these witnesses the most important thing they can do is tell the truth. I say it at the beginning of our meeting, then when we finish our meeting. I say this every time we meet. If the defendant’s attorney asks about conversations with me, they will inevitably respond: “The attorney told me to tell the truth.” What is more, for your client, your lay witnesses, and experts, make sure that they have a copy of their deposition and for your client, their discovery responses. Additionally, if there are prior recorded statements, either from an insurance company or police report, make sure they have those statements as well. You need to make sure that there are no inconsistencies in their testimony at trial with what they have said before. It is always uncomfortable when on crossexamination, a prior inconsistent statement is read to the jury. In addition, when you prepare your lay witnesses in person, get on-call letters signed. This is an agreement that they do not have to show up to court when subpoenaed. But, they will be “on call.” You will notify those witnesses within 12 to 24 hours in advance of when they need to appear. This makes for a more friendly witness. Further, make sure you have cell phone numbers for all of your witnesses. Bottom line, never believe that a witness does not need much preparation. There are no shortcuts.
Witness outlines and gathering evidence
Early in my career I found myself stumbling and fumbling around to find the exhibit I wanted. I was worried how this looked to a jury. I am a firm believer in making things easy for myself at trial. I want to find exhibits fast so there is no interruption in the flow of the testimony 14 — The Advocate Magazine
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where I try to find something. I want to appear polished and prepared. In this regard, I recommend a trial notebook with tabs for each witness. Behind the outline, I place a copy of each exhibit that will be introduced through that witness, and any prior testimony (depositions and statements). This means that in advance of making your witness outline, you should be thinking about what exhibit should go into evidence with which witness. Make sure you are using the appropriate witness for each item of evidence. Some evidence may be discussed through multiple witnesses. For friendly witnesses, the outline should be just this – an outline. This should not be questions and answers. If you draft complete questions, you will run the risk of not listening to the answers. If you don’t hear the answers, you will not ask the appropriate followup questions. I also put thumbnails of the exhibits with exhibit number into the outline itself for each exhibit I am introducing through the witnesses. Then I will not only know what the exhibit number is, I will also know what the exhibit looks like. This will insure that I grab the correct exhibit when I am marking and admitting it at trial. This cuts down on the fumbling for the right exhibit. Additionally, in my outline I anticipate arguments to exhibits being introduced into evidence. There are many non-controversial exhibits that will come in without objection. You need to worry about the ones you need in evidence that are controversial. If you have already thought about this and have your arguments ready, then you are going to be well prepared if the judge wants to hear oral argument at side bar outside the presence of the jury. For your cross-examination outlines, I actually do type out my questions and answers I anticipate based upon responses to discovery responses, deposition testimony and statements. You should also include page and line questions and answers from the witness’s depositions or statements. I actually go one step further and paste the questions and answers into my outline so I am clear what the answer
should be. You will be ready to impeach with this preparation. You should also think about how each exhibit will be shown to a jury and when. What I mean here is will you be using an Elmo (document camera)? Do you want to blow up an exhibit? Will you be using charts, diagrams or a timeline? By the time I am finished with my trial binders, behind each witness tab I will find my outline, followed by my exhibits, followed by deposition minitranscripts.
Bench briefs or pocket briefs
There are some cases where we all have particular pieces of controversial evidence that we know we don’t want into evidence that the defense wants in or that we want in that the defense does not. Sometimes this evidence will not be the subject of a motion in limine. When it is not, on important evidence, I like to prepare a brief setting forth my position on the admissibility of the evidence. If things don’t go your way, you have a better record on appeal.
Conclusion
In the end, being organized and not procrastinating will save you in trial. I am not suggesting that you will not be making last minute changes, staying up late and shifting around your schedule. However, once you are prepared you can handle all of the other inevitable curve balls that will be tossed your way. Christa Ramey is a sole practitioner in the West Los Angeles area. Ms. Ramey has been practicing law since 2000 and has exclusively represented injured plaintiffs during her career. A considerable amount of her practice is also devoted to working for various small firms on a contract basis. Ms. Ramey has been on the Board of Governors for Consumer Attorneys of Los Angeles, serving on the Education Committee and as Associate Editor of Advocate magazine. She is also a member of CAOC, AAJ and LACBA. Ms. Ramey graduated from Southwestern University School of Law, where she is now an Associate Adjunct Professor of Law.
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Browne Greene
It’s complicated: Handling cases with difficult fact patterns Being open, telling the truth and bringing out your problems before the defense does In a broad sense, I suggest that this topic, “Handling Difficult Facts,” is like handling any difficult problem that we approach in life. When you first accept a case, you accept the proposition that there will be problems associated with the case − large or small. Many times I have accepted cases with very involved complicated facts that other lawyers have declined to accept. Every case that you look at in your career will have some form of a problem. Even the best case will have some minor or perhaps insignificant problems. Success in life comes not only in dealing with problems in lawsuits, but with everything in life and especially in dealing with difficult people. I think in accepting a case and taking it to trial looking at the voir dire and/or opening statement issues, you approach problems of all different dimensions by (1) accepting those problems, (2) taking an attitude that you’re going to cope with those problems and attempt to minimize them and/or (3) in some cases, even turning those problems around and making those an advantage. I think that your attitude in particular will be quite significant as you approach dealing with problems. When in trial, if you project the attitude that you are open, you are telling the truth and you are bringing out your problems before the defense does, it will totally change the problems that you are about to deal with and may conceivably result in the jury having the view of a lawyer as an honest person. Woe to the plaintiff ’s lawyer or any lawyer who appears to be hiding facts or appears to be dishonest or avoiding reality. In approaching trial and especially looking at voir dire, opening statement, and eventually evidence, all issues that you approach, large or small, should be dealt with under the basic test of 16 — The Advocate Magazine
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Evidence Code section 352. Section 352 provides in essence that any issue that would be brought in front of a jury should have more probative value than prejudicial value. To put it in a corollary or a converse way, if the evidence to be offered has a substantially higher prejudicial effect than probative effect, it should be declined in order to avoid confusing the jury. Therefore, when you look at all of the problems that you associate in the case, you should look at these issues in terms of whether or not this issue could even be kept from the attention of the jury and therefore make it avoidable in terms of you having to try to deal with it and the possibility of its prejudicial effect. For example, the whole immigration issue today is a landmine confronting any plaintiff ’s lawyer who has a client who is in the country illegally at the time of the subject incident. You need to be able to
approach this issue in such a way so that fact will not be brought to the jury’s attention. The best way is to avoid evidentiary or issue-related matters consistent with it. For example, if someone is illegally in the country and is going to have a wage loss or economic effect, that defense may argue that the economic effect itself should be tested by their country of origin, not by the United States. One way to avoid that issue is to not make a wage loss or economic claim. A wrongful-death case with an obvious loss of a beloved family member would have a value in and of itself and does not need to be affected by the immigration status. Other similar issues that might also come up are: (1) medical records revealing that drugs, such as marijuana, have been used or (2) marital infidelity. Either of these issues would be completely
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prejudicial and therefore subject to a 352 objection in advance of trial if it has no probative value on any other matter relative to the case.
Voir dire
Matters in today’s world that need to be dealt with in a voir dire setting and have to be dealt with directly in terms of questioning are as follows: • Pain and suffering claims and general damage claims in today’s world Juries today, more and more, have a real problem in awarding general damages. This needs to be approached in a direct fashion with jurors principally because what you’re trying to do is to get rid of losers on the jury; i.e., people who have their minds made up in advance – if they could not award general damages in
18 — The Advocate Magazine
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an obvious case of general damages and therefore are prejudiced to begin with. You should get those people struck by effective voir dire. You need to ask questions in terms of whether or not anyone has a fixed sum of money in their mind that they could not award and bring that out directly. One thing that is effective is to ask if everyone believes in the fact that everyone is equal under the Constitution and if someone is poor or wealthy, they still need to be considered to be equal under the law and by the jury. • Suing a governmental entity Another issue that I have dealt with ever increasingly is the problem of suing a government entity in today’s world where the recession has these entities scrambling for funds because of budget cuts. That fact must be voir dired in
advance to see whether or not anyone is going to have a particular approach or acceptance otherwise. This issue came up for me in a recent trial in San Diego and was of paramount importance. It was interesting to see how we could turn that around in voir dire. • Credibility of witnesses Another issue that’s always in every case is credibility of witnesses. For example, if a police officer is to be involved in a case, especially if you are suing a governmental entity over an incident surrounding a police officer, you need to voir dire the jury in terms of their attitudes towards the credibility of police officers. Do they have more or less credibility than anyone else; i.e., a housewife, a lawyer, a child, etc. You would be interested to see
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how more and more people have questionable views of credibility concerning police officers. Voir dire must be direct when the issues of alcohol and drugs are involved, particularly if you have a client who has been drinking and it is shown that alcohol to some extent, whether or not he or she is presumed to be under the influence, was involved in the incident. It is amazing to consider how often you can turn problems such as those mentioned above around when you have used effective voir dire and in opening the door to these issues in an air of candor rather than otherwise. I suggest that you ask questions in voir dire concerning the tort system, lawyers in general, what they think of
Opening statement
something for which you should have been prepared. If it has been dealt with in a fashion that has hurt you, you need to immediately approach it and to deal with that directly in opening statement. Again, they are opening the issue, you are commenting on it, you are dealing with it and so forth. I would lead off with your strengths and, ultimately, you need to deal with your weaknesses in a fashion before the defense has an opportunity to do so.
Your opening statement is an extension of voir dire. Voir dire is the most important part of any trial and your opening statement will be fashioned based upon the fruits that you have picked from voir dire. If there is a problem that developed in voir dire or if there was an issue that came out, it is
Browne Greene is the senior partner in Greene, Broillet & Wheeler, LLP in Santa Monica. A former president of both CAALA and CAOC, he is a member of the Inner Circle of Advocates and has won over 25 seven- and eight-figure verdicts.
lawyers, what they think of jury verdicts, etc. This is of paramount importance in voir dire today because you will find so many jurors who have their minds fixed in terms of the tort system, lawsuits, juries, etc. Those are people whom you want to have proclaimed that they have a fixed mind, are not fair on the case and get them removed from the case by way of an objection for cause.
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T Robert Ounjian
Medical malpractice: Strategies to improve economic damages Challenging the defense experts’ calculations is vital to maximize damages In All the President’s Men, Bob Woodward meets Deep Throat in a garage. Woodward tells his source that the Washington Post is stuck. The Watergate story has stalled. Deep Throat tells Woodward: “Follow the money.” That catchphrase should be repeated to every plaintiff ’s lawyer litigating a medicalmalpractice case, with a clarification: “Follow the economic damages.” Since MICRA’s enactment in 1975, non-economic damages in medicalmalpractice cases have been capped at $250,000 (Civ. Code, § 3333.2). Economic damages, however, are not capped. Therefore, to come anywhere close to compensating your clients for their actual losses, you must maximize your clients’ economic damages. This article presents three defense tactics – commonly overlooked by plaintiffs’ counsel – which substantially reduce plaintiffs’ economic damages. This article also discusses straightforward strategies 24 — The Advocate Magazine
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to defeat these defense tactics. Our firm has seen these strategies increase our clients’ economic damages many times over.
Determining present cash value
Read CACI 3904A literally: Present cash value must be determined by investments the plaintiff can make today. First, evidence relating to the present cash-value calculation of the plaintiff ’s future damages may be the single largest factor in determining the size of a plaintiff ’s verdict. Yet, it is rarely contested or addressed. Challenging such calculations is vital. The heart of every plaintiff ’s economic damages case is the life-care plan. A life-care plan is a document that provides a comprehensive assessment of the plaintiff ’s future medical, household, and other needs. The plan also states how much each of those needs is expected to cost over time. Generally a nurse or
physician will testify to the life-care plan. After the life-care plan is entered into evidence, an economist will testify. An economist’s testimony is required because future economic damages must be reduced to present value. The first paragraph of CACI 3904A explains: [T]he amount of… future damages must be reduced to their present cash value. This is necessary because money received now will, through investment, grow to a larger amount in the future… In other words, by awarding the plaintiff future economic damages, the jury has awarded the plaintiff money for expenses that the plaintiff will owe over the course of his or her lifetime. The plaintiff, however, will not receive the money over the course of his or her lifetime. Instead, the plaintiff will be paid in
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one upfront lump sum. The law assumes that the plaintiff will invest that lump sum and earn investment income over time. Theoretically, if the award were not reduced, the plaintiff would be overcompensated, because the plaintiff would receive both compensation for the future expenses and the investment income earned while the plaintiff waited for the future expenses to come due. On the other hand, if the lump sum award is reduced to present value, the plaintiff can supposedly invest the award and, over time, grow the principal to match the expenses as they come due. In practice, the second paragraph of CACI 3904A is the most important language in the instruction. It is the language that the plaintiff ’s lawyer can use
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to exclude the defense economist’s opinion or to persuade the jury that it should be afforded very little weight. The instruction states: To find present cash value, you must determine the amount of money that, if reasonably invested today, will provide [plaintiff] with the amount of [his/her] future damages. (CACI 3904A; emphasis supplied.) The key phrase is: “if reasonably invested today….” Our firm has found that defense economists – and even some plaintiffs’ economists – will testify to how much the plaintiff will earn based on historic averages. More specifically, these economists will look to historic yields of U.S. Treasury bonds to determine what investment return the plaintiff is likely to
earn over the course of his or her lifetime. Such an analysis is both very common, and very wrong. Defense economists’ testimony based on historic averages is improper and should be excluded. CACI 3904A states that the proper investment return to be considered by the jury is the yield “if reasonably invested today….” CACI 3904A does not state that the proper investment return is the yield “if the sum had been reasonably invested at the historic average rate.” This only makes sense. The plaintiff is incapable of investing his or her award at historic average rates. The plaintiff is not receiving his or her award at some theoretical historic average time. The plaintiff is receiving the award today and,
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therefore the plaintiff can only invest at today’s actual rate. And, today – unlike in decades past – we are experiencing historically low
interest rates. On the date of this writing, the yield on a 30-year U.S. Treasury note is 3.82 percent. On this same date in 1990, the yield was more than double:
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8.47 percent. Therefore, if the award is “reasonably invested today,” the plaintiff will earn today’s rate: 3.82 percent. The plaintiff, investing today, is not capable of earning 1990’s rate nor the historic average of today and 1990. The plaintiff is only able to earn today’s lower rate. 3904A’s reliance on today’s lower rate – as opposed to higher historic averages – greatly benefits plaintiffs. Plaintiffs want the jury to find lower rates of return – not higher rates. Lower rates translate into larger awards. This is because the less interest a plaintiff will earn on his or her investments, the more money the plaintiff requires upfront to pay for his or her life-care plan. Confront this issue at the defense economist’s deposition. On the morning of the deposition, plaintiff ’s counsel determines that day’s U.S. Treasury rate which can be found here: www.treasury.gov/ resource-center/data-chart-center/interest-rates/ Pages/TextView.aspx?data=yield. Inevitably, the defense economist will testify to a rate of return much higher than today’s yield – sometimes double or triple or even more. Plaintiff ’s counsel then asks the defense economist: “Where can the plaintiff obtain your rate of return today?” Plaintiff ’s counsel, if in a snarky mood, might even offer to give his or her own personal money to the defense economist to invest at that higher historic rate. The defense economist will say something like: “The plaintiff can’t get that today. No one can get that rate. It’s the historic rate of return. It’s not today’s rate.” Plaintiff ’s counsel should then present the defense economist with a copy of 3904A and have the economist review it. The economist will acknowledge that instruction expressly and unequivocally states that the present cash value is to be calculated based on the sum needed to be “invested today.” Plaintiff ’s counsel should ask the defense economist whether his or her opinions are based on an assumption that the money would be “invested today.” The defense expert will have to acknowledge that it is not. The defense expert’s opinions are based on
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an assumption that the plaintiff does not invest his award today, but invests it on an historic average day. Consider a motion in limine to exclude the defense economist’s testimo-
ny, which is based on historic averages, as not comporting with 3904A. In case the court allows the defense economist’s testimony to be presented to the jury, inquire more deeply at the expert’s
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deposition to ensure the testimony will be afforded little weight and to help undermine the defense team’s credibility generally. Plaintiff ’s counsel should ask the defense economist why he or she calculated present cash value based on historic values instead of “today’s” yield as 3904A requires. Thus far, no defense expert has been able to provide our firm with any authority for using historic averages, as opposed to today’s rate. And there is no good reason to use historic averages. Again, unlike today’s rate, historic averages are not available to investors. To be sure, all kinds of excuses will ensue. They generally boil down to: The defense economist has always done it that way. In other words, the defense expert has always done it wrong. Plaintiff ’s counsel should then inquire whether or not defense counsel instructed the economist to calculate the present value based on today’s rates, as 3904A requires, or only to calculate based on historic rates. The defense economist will testify that he or she was only instructed to use historic rates. Alternatively, the economist will testify that defense counsel did not instruct the expert either way. The defense economist will concede, however, that when the expert presented defense counsel with figures based on historic rates, the economist was not then instructed to recalculate with today’s rates. This series of questions is helpful to show, at trial, that the defense team – despite knowing the text of 3904A – is trying to pull an economist’s trick and get off cheap. Jurors – many of whom are still very affected by the economic downturn – are keenly aware of economists’ tricks and respond poorly to them. Finally, plaintiff ’s counsel should ask the defense economist to re-calculate based on today’s yield. Plaintiff ’s counsel should be sure to have the defense economist perform this recalculation with plaintiff ’s expert’s life-care plan. If the deposition is videotaped, plaintiff will rightly appear eminently reasonable by introducing in plaintiff ’s
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case-in-chief the video of defense economist’s calculation of the plaintiff ’s lifecare plan. (Code Civ. Proc., §2025.620; 2025.340(m).) This leaves the defense in the awkward position of explaining during their case why the jury should ignore 3904A and use historic rates, rather than today’s rate to which the defendant’s own economist previously testified by video. Finally, it is important to understand the dramatic difference in awards that result from approaching present cash value based on today’s rates, rather than historic rates. In 2012, we had to present two economists in a medical-malpractice birth-injury case. Both economists agreed that the plaintiff ’s future medical costs were approximately $51 million. The economist who used historic rates testified that the present value of that sum would be $14 million. The economist
who used today’s lower yield testified that the present value was more than double: $35 million.
Periodicized judgment
If the defense demands a periodicized judgment, move to exclude any reduction to present cash value. Second, while the above interpretation of 3904A will prevent excessive reduction of your client’s future damages’ award, there are times when no reduction at all is permitted. More specifically, Code of Civil Procedure section 667.7(a) provides that a medical-malpractice defendant may demand that any award of $50,000 or more in future damages be entered by the court not as a lump sum, but instead in periodic payments over time. Case authority provides that when such a
demand is made, the court must enter a judgment which specifies “the dollar amount of payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.” (Hrimnak v. Watkins (1995) 38 Cal.App.4th 964, 973-974.) Critically, when a future damages’ award is to be paid in periodic payments, it should not be reduced to present value at all. As the California Supreme Court explained: When a party properly invokes section 667.7… the [trial] court must fashion the periodic payments based on the gross amount of future damages. This is because if a present value award is periodized, a plaintiff might not be fully compensated for his or her future
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losses; the judgment, in effect, would be discounted twice: first by reducing the gross amount to present value and second by deferring payment.
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The California Supreme Court added: The proper approach… is for the jury to determine the gross amount of future damages and for the court to structure a periodic payment schedule based on that amount. (Id. at 639 (emphasis added; citations omitted).) Virtually all medical-malpractice defendants demand a periodic payment judgment in their Answer. Defendants prefer periodic payments for at least two reasons: 1) The longer the time a defendant has to pay any judgment, the less expensive the judgment effectively is; and 2) If a medical-malpractice plaintiff dies before all payments are made, all non-earnings future losses are terminated. Only the future earnings must be paid to the plaintiff ’s heirs. (Code Civ. Proc., § 667.7(b)(1), (c).) Once a defendant has demanded a periodic payment judgment, the jury should not hear any evidence of presentvalue reduction. Again, this is because when a periodic-payment judgment is invoked, the jury does not reduce the award to present value. Instead, the jury renders a judgment for the full gross value. Post-verdict, the court – not the jury – addresses any periodicizing. To allow the jury to hear presentvalue evidence, when the jury is not tasked with reducing the judgment to present value, only allows the defense to confuse jurors with evidence of lower sums that are not probative for the jury’s fact-finding purposes. When the defendant has invoked its right to a periodic payment judgment, plaintiff ’s counsel should move in limine, pursuant to Evidence Code section 352, to exclude present-value reductions. The probative value of such evidence – none for the jury which does not reduce the award – is substantially outweighed by the probability that its admission will create a substantial danger of confusing the issues or will mislead the jury. To the extent the court wishes to hear such testimony, it may receive such evidence after the verdict when it is fashioning the periodic-payment judgment.
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For the sake of completeness, I note that there are several circumstances where a present-value calculation might be necessary. Chief among them is to
determine whether the plaintiff obtained an award greater than a prior statutory offer to compromise under section 998 of the Code of Civil Procedure. In cases that
seem headed to trial, a plaintiff may elect not to make such an offer, or during trial to waive the benefits of such an offer, in order to prevent introduction of presentvalue calculations that may unnecessarily reduce the jury’s awards. A present-value calculation may also be required to determine plaintiff ’s attorney’s fees. Presumably, however, plaintiff and plaintiff ’s counsel can stipulate that such an issue is to be resolved by the court, rather than the jury. Further, case law provides that the cost of any annuity purchased to fund the future payments is presumed to be the appropriate present value for calculating attorney fees. (Holt v. Regents of Univ. of Calif. (1999) 73 Cal.App.4th 871, 884; Schneider v. Kaiser Found. Hosps. (1989) 215 Cal.App.3d 1311, 1319.) Also, a settlement by a co-defendant may present complex offset issues that require a present-value determination by the jury.
Life-expectancy interrogatory on the verdict form
Third, medical-malpractice defendants will often try to force the jury to make a finding of the plaintiff ’s life expectancy. You must oppose defense efforts to include a life-expectancy interrogatory on the verdict form. Such findings – while seemingly innocuous – have a tendency to reduce medical-malpractice plaintiffs’ judgments. Plaintiffs’ counsel should oppose the inclusion of any life-expectancy question on verdict forms. Jurors do not want to pronounce judgment that the plaintiff – a human being they have come to know well – may soon die. To jurors, expressly finding a shortened life expectancy has all the allure of being an executioner. This is especially true for jurors who have accepted the plaintiff ’s multi-year lifecare plan. They have hope that the plan will work and it will preserve the plaintiff ’s longevity. Defendants, on the other hand, will take advantage of a jury’s finding that the plaintiff will live for a long period. Defendants will argue that the jury’s long life-expectancy finding compels the court
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Medical — continued to periodicize the judgment over a long period of time. While plaintiffs do not wish for short lives, they prefer a short periodic-payment schedule because of the principle of the time-value of money, i.e., money available today is worth more than the right to the same amount of money at a later time. Moreover, if the life-care plan is periodicized over too great an amount of time there may be insufficient funds early on for the plaintiff to obtain all necessary treatment that would prolong the plaintiff ’s life. Plaintiffs should object to the inclusion of life-expectancy questions on verdict forms as irrelevant. Section 667.7, subd. (f) of the Code of Civil Procedure does not require it, stating the court may convert the verdict into a periodic-payment judgment spaced over “whatever period is necessary.” Case law expressly provides that the periodic payment judgment need not conform to a lifeexpectancy finding: Nowhere in the statutory scheme or legislative history is the court’s periodic payment schedule necessarily dependent on, nor must it directly correspond to, a plaintiff ’s life expectancy. (Atkins v. Staryhorn (1990) 223 Cal.App.3d 1380, 1397.) If you use these three strategies, you can increase your medical-malpractice clients’ recovery of economic damages and bring them closer to full compensation for their losses. Robert J. Ounjian is a partner at Carpenter, Zuckerman & Rowley, LLP, in Beverly Hills. He has been practicing for 13 years. He earned his undergraduate degree from UC Irvine and his law degree from Southwestern Law School. His practice is primarily focused in the areas of medical malpractice, with an emphasis on birth injuries, and catastrophic personal injury. He is an active member of CAALA and CAOC.
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David Ring
Natalie Weatherford
Litigating childhood sexual-abuse cases Focus your discovery on who knew what, and when, while limiting the minor’s involvement in the process Sexual abuse cases involving minors are some of the most challenging and emotional – yet rewarding – cases that a plaintiffs’ attorney can take on. Representing minor victims of sexual abuse requires an ability to navigate the most sensitive topics while aggressively fighting for the documents and information that you will need to win your case. Do not expect any compassion from defense counsel despite the delicate nature of these cases. Sexual-abuse cases are often hard-fought legal battles on every issue − from liability to damages − and defense counsel will take any opportunity to discredit the minor victim, attack the victim’s family, and cover up or diminish their clients’ wrongful conduct. Here’s what you need to know to successfully represent your minor plaintiff in a suit against the perpetrator of the abuse and the perpetrator’s employer:
Meet with the minor plaintiff without his/her parents present.
At your first client meeting, you should meet with the plaintiff ’s parent or guardian and the minor plaintiff. The parent or guardian will serve as the primary contact and decision-maker in the litigation. Be aware that victims of abuse are often reluctant to disclose every detail of the abuse with their parent in the same room. You should dedicate a portion of this first meeting to meet privately with the minor plaintiff. During this one-on-one meeting, encourage the plaintiff to speak candidly to you about the details of the abuse. Depending on the age of the plaintiff, the one-on-one meeting is an appropriate time to discuss the plaintiff ’s social-media presence. Defense counsel will invariably explore the social-media 40 — The Advocate Magazine
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use of the minor. If there is anything on the Internet (racy photos, vulgar language, etc.) that can make the plaintiff look bad, defense counsel will find it and use it against the plaintiff.
Limit the minor’s involvement in the litigation.
Keep the minor plaintiff out of the legal proceedings as much as possible. This is done not only for the protection of the plaintiff, but also to preserve the plaintiff ’s testimony from being tainted by the legal process. There will be a handful of important events that require the minor plaintiff ’s involvement. Most important will be their deposition. Minors make excellent witnesses because they have no hidden agendas and their testimony is truthful, untainted, and from the heart. However, this does not mean that they should not be thoroughly prepped before the deposition. You will need to dedicate at least one full day to preparing the minor for their deposition. It is important to prepare the minor to speak about the sexual abuse and to not be shy or embarrassed to describe all of the details. If their case involved a criminal case against the perpetrator and the plaintiff provided testimony in that case, you should review that prior testimony with the plaintiff to maintain consistency.
Focus your discovery on notice – who knew what and when.
In many child sexual-abuse cases, you will sue the perpetrator of the abuse as well as the perpetrator’s employer. The key to holding the employer liable is notice. Notice should be the focus of your discovery – what did the employer know about the perpetrator, when did they know it, and what did they do after they knew it?
Request records from law enforcement and the district attorney. Often, the perpetrator of the sexual abuse will be criminally charged. If the criminal proceedings are ongoing at the time you are preparing to file your civil case, you may want to hold off on filing your suit for as long as possible. There are two reasons to do this. First, you want to avoid stepping on the district attorney’s toes. Second, the criminal case files from law enforcement and the district attorney contain invaluable information and won’t be released to you until after the criminal case is complete. If you file your civil suit before resolution of the criminal case, a discovery stay would be useful to ensure you have all the criminal-case documents before deposing key witnesses. Because of the defendant-perpetrator’s ability to invoke the Fifth Amendment in any discovery requests, you can often get a discovery stay ordered by the court if the defense counsel will not stipulate to it. Once the criminal case is complete, immediately subpoena the entire criminal file from both the district attorney and law enforcement – you will get different documents from each. You may also want to subpoena the lead detective from the criminal case with a document request for his entire file.
Request the perpetrator’s personnel file and any “blind” or “site” files.
As discussed above, in order to hold an employer liable for the sexual abuse perpetrated by its employee, you must prove notice. Document requests and special interrogatories to the perpetrator’s employer should focus on determining who knew what about the perpetrator’s wrongful conduct, when they knew
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about it, and what, if anything, they did about it. Notice generally takes the form of “complaints” about the perpetrator. In an employment setting, complaints are often memorialized in writing. These written complaints or notes of verbal complaints will be the foundation of your case. Always request production of the perpetrator’s entire personnel file. If your case involves a school employee/ teacher perpetrator, you will want to request both: (1) the “formal personnel files” which contain certain documents that are allowed by law to be placed in the file; and (2) any “site file” or “informal,” “confidential,” or “blind” personnel files or similar writings. Where formal personnel files are restricted by union contract, the school principal will
often keep an additional on-site file for each teacher. This “blind” file will be where the principal places personal memos and notes of complaints from students, teachers or employees, warnings and counseling provided in response to complaints, and all kinds of other useful information. An additional request should be made for any documents, memos, emails or similar writings, which set forth or describe any warnings, reprimands, or counseling given to the perpetrator. You will also want to request any response by the perpetrator to any discipline referenced in those writings. Defense counsel will always object to the production of personnel files, complaints, and disciplinary documents based on confidentiality and privacy rights. These documents can be key to
your case, so be prepared to bring a motion to compel; in most circumstances, the court will grant your motion. In deciding the motion the court will balance the third-party’s (perpetrator’s) privacy rights against the need for the documents. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855, 856; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) To prevail you need to demonstrate relevancy, a compelling need for the documents, and that the information sought cannot reasonably be obtained through other non-confidential sources. (See Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10). In your motion, lay out for the court all the reasons why the requested documents are crucial to your case because they are the
Litigating continues
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best and most reliable evidence of: (1) any complaints against the perpetrator; (2) when the perpetrator’s employer learned of the complaints; (3) any response by the perpetrator or any action taken by the employer in response to the complaints; and (4) whether the complaints were investigated by the employer.
Don’t just depose the obvious liability witnesses. In sexual-abuse cases, some of the most compelling liability testimony comes from the least-expected sources. It is often the case that a random teacher/employee will have seen something questionable involving the perpetrator and either failed to report it or reported it and nothing was done about it.
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You will not get the liability testimony necessary to prove notice through deposing only the obvious sources – perpetrator’s direct supervisor, school superintendent, school principal, etc. This requires you to take many depositions and not just the obvious deponents. For example, in a sexual-abuse case involving a teacher and student, consider deposing the teacher in the classroom adjacent to the perpetrator-teacher’s classroom, or former students of the perpetratorteacher who had negative experiences in their classroom.
Always depose the perpetrator.
You must take the deposition of the perpetrator of the abuse. This may seem like a no-brainer; however, in many cases the perpetrator will be difficult to pin
down, either because they are in prison or because they are represented by counsel and threatening to invoke the Fifth if deposed. The perpetrator can be one of your best liability witnesses. He or she can provide invaluable information regarding school/employer procedures, including poor supervision practices and prior complaints. You should explore how the perpetrator carried out the abuse, whether the perpetrator thought he or she would get away with it (because of a lack of supervision or other factors), what the perpetrator’s supervisors were really saying to him or her if there were earlier complaints or discipline, and the perpetrator’s perception regarding the seriousness of
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Litigating — continued
Robert T. Hanger, Esq. Mediator/Arbitrator
with over five decades of experience • Available throughout So. California
• Practice Areas: Complex Litigation, Discovery, Homeowners Association, Personal Injury, Premises Liability and Products Liability
Member, ABOTA since 1983
Member, Association of Southern California Defense Counsel
Member, Los Angeles County Bar Association; Chairman of Industry Liaison Committee (ASCDC) (1995) Guest Speaker, Los Angeles Trial Lawyers Association
TOLL FREE
1.800.347.4512 www.arc4adr.com 46 — The Advocate Magazine
FEBRUARY 2014
any discipline leveled against him or her. Take the deposition in prison if necessary. This will require advanced planning and jumping through a few hoops, but it is worth it. Do not be discouraged if the perpetrator takes the Fifth at the deposition. Pin him/her down on the record regarding the intention to not answer any questions based on the Fifth Amendment. This will prevent him/her from coming forward at trial with different testimony. Finally, videotape the deposition. If the perpetrator is still in prison at trial, play the video for the jury so they can have the visual of the perpetrator in prison. This will convey the seriousness of the conduct and resulting charges.
Protect the plaintiff by knowing the boundaries of discovery.
Code of Civil Procedure section 2017.220 expressly prohibits any discovery concerning the plaintiff ’s sexual conduct with individuals other than the alleged perpetrator in cases involving sexual harassment, sexual assault, or sexual battery. This includes sexual conduct before the abuse that is the subject of the civil suit, as well as after the abuse. If the defense wishes to inquire into these areas, they must first obtain a court order. Section 2017.220 is your weapon to counter defense attempts to discredit or
humiliate the plaintiff. In deposition, if the defense inquires into the plaintiff ’s past sexual relationships, sexual experience or similar areas, you should object and instruct your plaintiff not to answer.
Limit the defense medical examination.
At some point, defendants will request a psychological examination of your plaintiff. You are not allowed to be present at this examination, so it is important to hammer out the limitations of the examination in writing before confirming the plaintiff ’s attendance. The defense will push for multiple days of interviewing and testing with multiple psychologists or psychiatrists. You should agree to an examination with one doctor only and for one full day, allotting time for appropriate breaks for the plaintiff. Limits on the number of hours spent on testing versus interviewing should also be set – an allowance of three hours for interviewing and three hours for testing should be sufficient. Always demand that the interview portion of the examination be audio recorded and that a copy of the recording be produced after the examination. Without appropriate parameters in place, the defense will use the interview portion of the examination to conduct a second deposition of plaintiff and
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inquire into all the areas that were offlimits at the deposition. Before the examination, confirm in writing that the examiner is not permitted to inquire into prohibited areas (such as plaintiff ’s sexual history with anyone other than the perpetrator of the abuse) and that plaintiff is permitted to end the examination if the examiner inquires into prohibited areas. Prepare your client before the examination regarding what is off-limits, and be available by phone on the day of the examination so that you can respond to any issues that may arise.
The damages will be largely non-economic.
You will never have a huge economic-damage model in a sexual-abuse case. Plaintiff ’s damages will be primarily noneconomic and it will be all about proving emotional-distress damages. At the outset of your case, make sure the plaintiff is treating with a therapist. Also recognize that, at some point, those therapy records will end up in the hands of the defense. You have no control over what the therapist writes in their records – some therapists write brief, bullet-point session notes and some write every word that comes out of the plaintiff ’s mouth at a session. Before producing those therapy records, you must read through them thoroughly (or have a nurse review and summarize) for any information you want protected from disclosure – including information regarding plaintiff ’s sexual history or prior instances of sexual abuse (with people other than the perpetrator) and third-party privacy rights. If group therapy and family therapy are recommended, the sessions should be with a different therapist than the one who is exclusively treating the plaintiff. Group therapy records will be protected from disclosure pursuant to third-party privacy rights and can be inadvertently disclosed if included in the same chart notes as the plaintiff ’s one-on-one therapy. If group or family therapy with a different therapist is not possible, then request that the therapist keep the group-therapy records separate and apart from the plaintiff ’s
one-on-one therapy records. The files should not be intermingled. In addition to therapy, emotionaldistress damages will be demonstrated through the testimony of the plaintiff and those people who are closest to the plaintiff. Before the plaintiff ’s deposition, prepare them to discuss, in depth, the effect that the abuse has had on their lives including how they felt when the abuse was occurring, how they felt in the immediate aftermath of the abuse, and how they feel today. Often, particularly when the plaintiff is very young (14 and under), they may have difficulty articulating the effect of the abuse. The plaintiff ’s parents and family will help to fill this gap and explain to defense counsel (and the jury) the impact on the plaintiff and changes in the plaintiff since the abuse. It is not enough for them to testify generally about how the plaintiff is doing, or to say that the plaintiff is “sad” or “upset.” They must explain in-depth how the abuse affected the plaintiff with specific examples, where appropriate. A great expert psychologist is the final piece of your emotional damages puzzle. You should retain someone who is well-versed in explaining the impact of childhood sexual abuse on victims. They should clearly explain the effect the abuse will have on the victim’s life milestones such as future consensual sexual relationships, marriage, child rearing, and so on.
List investigating law enforcement officers as your “non-retained” expert witnesses
When preparing your expert witness list, list the investigating officers from the criminal case as “non-retained experts.” At trial, this will ensure that the officers are permitted to discuss their training and expertise in investigating sexualabuse cases. Most officers have investigated hundreds or even thousands of childhood sexual-abuse cases and have interviewed countless child-sexual-abuse victims. With this training and experience, the officer can best explain to the jury the difficult and unique issues that arise
in these cases including – why it is perfectly normal for victims of sexual abuse to be reluctant to come forward and report the abuse; why victims protect the perpetrator; why victims experience shame, fear and embarrassment; and how that shame, fear and embarrassment affects the victim’s ability to stop or report the abuse. At trial, call the investigating officer as your first witness. They will set up the scene of your entire case and establish a serious tone for the trial. Since the officer is a non-retained expert, you should use them to articulate generally how “grooming” and “conditioning” tactics are employed by sexual predators, as well as the effect these tactics have on child victims. This will build up the credibility of the plaintiff by laying out the specific grooming and conditioning tactics employed by the perpetrator in order to manipulate and abuse the plaintiff. This is especially valuable in cases involving “older” (14 and over) minor plaintiffs where the defense may attempt to present the sexual abuse as a “relationship” between the perpetrator and the plaintiff.
Conclusion
The delicate subject matter coupled with the contentious legal battling involved in litigating sexual-abuse cases can take a toll on even the most resilient attorney. However, at the end of the day, these are the most rewarding and fulfilling cases you can take on. The litigation process will empower the plaintiff to overcome the victimization and abuse they suffered and in many cases will effect positive change in schools, youth organizations and religious institutions to protect children from future harm. David Ring and Natalie Weatherford of Taylor & Ring in Los Angeles handle all types of personal injury cases, but specialize in handling sexual abuse, sexual assault and sexual harassment cases involving children and adults. FEBRUARY 2014
The Advocate Magazine — 47
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Christopher B. Dolan
Christopher B. Dolan
Coping with sub rosa video at trial The key to keeping sub rosa out of trial is to deal with it before trial One of the most significant concerns that any trial lawyer has is that there may be sub rosa video of your client that either may misrepresent the true nature of their difficulties or, worse, identify evidence that demonstrates that your client has been lying to you or abusing the process. As officers of the court, we have a duty only to advance cases which have merit. We are duty bound to make sure that we do not participate in any aspect of a fraudulent claim. As business people who work under the unique constraints of a contingent fee model, we also do not want to find ourselves in the uncomfortable situation wherein we find out that, after we have spent considerable time and money pursuing a meritorious case, 48 — The Advocate Magazine
FEBRUARY 2014
our client had either overstated the nature and extent of their injuries or had flat-out lied. As part of the representation of our clients, we advise them at the initiation of their case, in the first client meeting, and in our communications accompanying their opening documents, that they should expect that they will be followed and videotaped and, therefore, they should be mindful of their behavior as well as being truthful in all statements made to their physicians, disability insurers, employers, the defense medical examiner, their answers to discovery and testimony provided at their deposition. To protect the process, our representation, and the Judicial System, it is
important that we seek early and often to find out if there is any evidence of investigation which undermines our client’s claim. There are many vehicles available to do this: Form Interrogatories 12.1-12.2, requests for production of documents, expert-witness deposition notices, and the notice to appear and produce at time of trial. Make it a practice to issue form interrogatories, and get answers, as soon as possible. Defendants’ attorneys will most likely provide blanket objections and little other information. Often they provide this boilerplate response; “Objection. This interrogatory is objectionable on the grounds that it requests
Coping continues
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Coping — continued
information protected by the attorney work product privilege.” (See Nacht & Lewis Architects Inc. v. Superior Court (1967) 47 Cal.App.4th 214.) “The Interrogatory is further objectionable on the grounds that it is premature as Defendant has not yet completed its investigation of the incident, subject to and without waiving said objections; No.” If they object and then say “No,” then they have provided a substantive response. That is in most cases sufficient for the purpose of setting forth a strategy to discover and/or exclude sub rosa. If the defendants cite Nacht and do not answer, you must file a motion to compel. Nacht is simply inapplicable as its holding dealt solely with the production of a list of witnesses who the defendant’s lawyer interviewed as part of its investigative efforts.
50 — The Advocate Magazine
FEBRUARY 2014
The logic applied by the court in denying production of such a list under 12 series of the form interrogatories was that it would reveal the attorney’s impressions of the case based upon who they interviewed. In the case of sub rosa video, the argument is that the plaintiff is entitled to this evidence for the following reasons; 1) the Judicial Counsel wrote the form interrogatories, therefore it should be presumed to be appropriate; 2) it is akin to a statement taken from the plaintiff; 3) it does not reveal the defendant’s impression of the case; they have denied the nature and extent of plaintiff ’s injuries; and 3) such evidence will foster the full evaluation of the case and promote settlement. If the defendant has answered no, then supplemental interrogatories should be issued pursuant to Code of Civil
Procedure section 2030.070. Section 2030.70 provides that, within the deadlines provided for by the discovery statutes, any party may propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to form interrogatories twice before the initial setting of a trial date, and, once, after the initial setting of a trial date (following a trial continuance). The interrogatory may be simply stated as “Pursuant to Code of Civil Procedure 2030.070, the Plaintiff hereby issues this Supplemental Interrogatory and request that Defendant update all interrogatory responses to disclose any later acquired information bearing on all answers previously made in response to
Coping continues
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Steven G. Mehta is one of California’s premier, awardwinning attorney mediators, specializing in intensely-difficult and emotionally-charged cases. Steve’s book, 112 Ways to Succeed in Any Negotiation or Mediation, will turbo-charge your negotiation skills regardless of your experience. To schedule your mediation or order a copy of Steve’s new book, call
form or special interrogatories this includes, but is not limited, to all form interrogatories, including the 13, 15, 16, and 17 series. The defendant is advised that failure to update these responses will result in appropriate motions in limine regarding asserting any defenses or general denials as to injury or causation which are not properly disclosed in response to the subject interrogatories.” Attached to this article is a motion in limine to preclude introduction of any evidence not produced in response to plaintiff ’s form interrogatories. Another method of seeking production of sub rosa is through a request for production of documents under Code of Civil Procedure section 2013.010. Such a request can simply be “Produce any and all WRITINGS, as defined by Evidence Code section 250, which relates to, refers to, reflects or memorializes any surveillance taken by defendant, or anyone acting on its behalf, of the plaintiff including but not limited to those documents which were, or should have been, identified in response to form interrogatory Nos. 13.1.” As with the request for supplemental form interrogatory responses, Code of Civil Procedure section 2031.050, a party can, within the deadlines provided for discovery, make two supplemental requests and, if the trial is continued, an additional request. Another way to obtain sub rosa is
through the deposition of defendant’s experts. In the notice ask for “All WRITINGS she/he reviewed, referred to, or relied upon in arriving at any of her opinions or conclusions concerning the issues involved in the lawsuit, including but not limited to all sub rosa video, scientific and technical articles, publications, codes, standard, and other literature.” If the expert is going to opine on causation and damages, and has seen a sub rosa video, then she/he must produce it at their deposition. Finally, the last opportunity to obtain sub rosa is through the notice to appear and produce pursuant to Code of Civil Procedure section 1987 (c) which must be served no later than 20 days prior to trial. At the inception of the trial, make a request to defendant, in writing, for any sub rosa video and, if they do not produce it, provide that as additional argument at the time you argue your motions in limine. Christopher Dolan owns the Dolan Law Firm with offices in San Francisco, Oakland and Sacramento. He is a past president of CAOC, recipient of the Consumer Attorney of the Year Award, San Francisco Trial Lawyer of the Year Award, Civil Justice Award, California Lawyer Attorney of the Year Award (CLAY), Daily Journal Top 100, AV Preeminent and listed as one of the Best Lawyers in America.
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www.snthelp.com 52 — The Advocate Magazine
FEBRUARY 2014
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Alyssa Kim Schabloski
Discovery and police officers: The Pitchess process Discovery relating to a peace officer’s job performance or disciplinary actions must follow a unique, statutory process Under California law, certain information related to peace officers enjoys a conditional privilege. This limited privilege is held by both the peace officer and the agency. (Michael v. Gates (1995) 38 Cal.App.4th 737, 744.) So whether you are representing an officer in a personalinjury or employment matter, or suing a law enforcement agency for battery or other civil-rights’ violations, you need to understand what information is privileged and how to get the information you need – or how to protect your client’s right to privacy. To obtain information from officer personnel records, complaint investigations, or disciplinary action against a peace officer, a party must follow a unique, statutory discovery method. Although this discovery vehicle is generally codified at Evidence Code sections 1043 et seq., it is often referred to as Pitchess, for the landmark California Supreme Court case Pitchess v. Superior Court (Echeveria) (1979) 11 Cal.3d 531. This article discusses the development of the Pitchess process and describes what kind of information is conditionally privileged. The article concludes by offering guidance through the Pitchess-motion procedure, which generally consists of a noticed motion setting forth, by counsel’s affidavit, good cause for the court to conduct an in camera review to determine which records are relevant and to be produced.
The development of the Pitchess process
In 1974, the Legislature adopted Penal Code section 832.5.This section requires law-enforcement agencies to establish a procedure for investigating citizen complaints against peace officers. Section 832.5 also requires the agencies 56 — The Advocate Magazine
FEBRUARY 2014
to retain records of the original complaint and investigation for at least five years. That same year, the California Supreme Court decided Pitchess. Cesar Echeveria was charged with battery of certain deputy sheriffs. Echeveria claimed that he acted in self-defense in response to excessive force by the deputies. As part of his defense, Echeveria sought investigations of citizen complaints of excessive force against those same officers. The Pitchess Court permitted Echeveria to obtain the investigations over Sheriff Pitchess’s objections. (Pitchess, supra, 11 Cal.3d at 534.) The Pitchess decision rocked the lawenforcement world, and record shredding and discovery abuses allegedly followed. (See San Francisco Police Officers’ Assn. v. Sup. Ct. (City & Cty. of San Francisco) (1988) 202 Cal.App.3d 183, 189.) To curtail these practices, the Legislature enacted changes to the statutory scheme to balance the right to privacy of the peace officer and the employing agency with the interest of justice. (See City of Azusa v. Sup. Ct. (Madrigal) (1987) 191 Cal.App.3d 693, 696-97.) In 1978, Penal Code section 832.5 was amended at the same time Penal Code sections 832.7, 832.8 and Evidence Code section 1043 were added by Senate Bill No. 1436. With these amendments, the Legislature attempted to protect a party’s right to a fair trial and the officer’s privacy interest. (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) Evidence Code section 1043(a) sets forth the initial Pitchess procedure: In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or
information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought. Case law has refined the parameters of this process. Notably, a Pitchess motion trumps general discovery rules in both the civil and criminal context. (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400; see also, People v. Sup. Ct. (Gremminger) (1997) 58 Cal.App.4th 397, 403 [statutory Pitchess scheme takes precedence over discovery procedures in the Code of Civil Procedure]; Fagan v. Sup. Ct. (People) (2003) 111 Cal.App.4th 607, 310 [prosecutor must comply with Pitchess process to disclose Pitchess information of retired peace officer defendant].) So, information protected by the Pitchess privilege is not discoverable under Civil Discovery Act inspection demands. (See Cty. of Los Angeles v. Sup. Ct. (Uhley) (1990) 219 Cal.App.3d 1605, 1609; but cf. Dominguez v. Sup. Ct. (City of San Gabriel) (1980) 101 Cal.App.3d 6, 11 [finding that the City’s rights under Evidence Code sections 1043 et seq. were not impaired irrespective of how plaintiff ’s motion to compel was entitled].) In fact, the agency with custody or control of the records has no obligation to respond to a Code of Civil Procedure section 2031 request for production of Pitchess information. Moreover, the
Pitchess Process continues
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Pitchess Process — continued
failure to respond to such a request does not waive any Pitchess objections the agency may have. (Uhley, supra, 219 Cal.App.3d at 1611.) Nor may Pitchess
information be disclosed pursuant to a California Public Records Act request. (Hemet v. Sup. Ct. (Press-Enterprise Co.) (1995) 37 Cal.App.4th 1411, 1422; Cty.
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of Los Angeles v. Sup. Ct. (Kusar) (1993) 18 Cal.App.4th 588, 600.) The privilege applies to both pre-trial discovery and live testimony. (Fletcher v. Sup. Ct. (Oakland Police Dep’t) (2002) 100 Cal.App.4th 386, 403.) Whether the Pitchess process is available in administrative proceedings is uncertain. In Brown v. Valverde (2010) 183 Cal.App.4th 1531, the First District Court of Appeal found that the Pitchess process is not available in Department of Motor Vehicle administrative per se hearings. (Id., 183 Cal.App.4th at 1535.) In Riverside County Sheriff ’s Department v. Stiglitz (2012) 147 Cal.Rptr.3d 292, however, the Fourth District court of appeal expressly analyzed and “completely” distinguished Brown, supra. The Stiglitz court found that an administrative hearing officer may rule on a Pitchess motion where such discovery is relevant in a Government Code section 3304(b) hearing, which is an administrative appeal of discipline imposed against a public safety officer. (Id., 147 Cal.Rptr. at 308, 313.) On January 16, 2013, the California Supreme Court granted review of the Fourth District’s opinion, depublishing the appellate opinion and leaving the issue uncertain until the case is decided. As for federal court, the Pitchess process is not binding. (Jackson v. Cty. of Sacramento (E.D.Cal.1997) 175 F.R.D. 653, 654.) The California Pitchess discovery rule requires that the requesting party make showing of materiality, which was specifically rejected in Federal Rule of Evidence 402. (Soto v. City of Concord (N.D.Cal.1995) 162 F.R.D. 603, 609 at n.2.)
Information subject to the Pitchess privilege
Penal Code sections 832.7 and 832.8 provide the foundation for what kind of information related to peace officers is subject to the conditional Pitchess privilege. The information is protected regardless of whether it could be obtained from other sources. (Hackett v. Sup. Ct. (Glin) (1993) 13 Cal.App.4th 96, 100.)
Pitchess Process continues 58 — The Advocate Magazine
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Pitchess Process — continued Penal Code section 832.7(a) states, in pertinent part: Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. . . . Penal Code section 832.8 states, As used in Section 832.7, “personnel records” means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following: (a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information. (b) Medical history. (c) Election of employee benefits. (d) Employee advancement, appraisal, or discipline. e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties. (f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy. “Personal data” does not include the officer’s identity, unless the officer was the subject of a complaint or disciplinary hearing, the employing agency, dates of current employment, or other information relating to the officer’s current job status. (Comm’n on Peace Officer Standards & Training v. Sup. Ct. (Los Angeles Times Commc’ns, LLC) (2007) 42 Cal.4th 278, 294-96, 299.) Nor does personal data include an officer’s salary. (Int’l Fed’n of Prof ’l & Technical Eng’rs v. Sup. Ct. (Contra Costa Newspapers, Inc.) (2007) 42 Cal.4th 319, 341.)
Pitchess Process continues 60 — The Advocate Magazine
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The definition of “personnel records” pertaining to “complaints” is expansive and includes many types of documents related to potential or actual disciplinary action against an officer.
M Such records are not limited to Internal Affairs investigations, but also include Citizen Review Board’s reports. (Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 898, 900.) Furthermore, “[u]nsus-
tained complaints are discoverable as well as sustained complaints.” (People v. Zamora (1980) 28 Cal.3d 88, 93, n.1 (citing Saulter v. Muni. Ct. (People) (1977) 75 Cal.App.3d 231, 240; Kelvin L. v. Sup. Ct. (Cabell) (1976) 62 Cal.App.3d 823, 829).) “Personnel records” also encompass disciplinary proceedings against peace officers. (Copley Press, Inc. v. Sup. Ct. (Cty. of San Diego) (2006) 39 Cal.4th 1272, 1279.) Disciplinary proceedings and citizen complaints are subject to the Pitchess scheme regardless of “the mechanisms set up by a local jurisdiction to handle such matters . . . .” (Berkeley Police Ass’n v. City of Berkeley (2008) 167 Cal.App.4th 385, 401 (citing Copley Press, Inc., supra, 39 Cal.4th at 1294-95); see also San Francisco Police Officers’ Ass’n, supra, 202 Cal.App.3d at 188 (determining that a local rule allowing the complainant access to the hearing officer’s decision or director’s recommendation violates confidentiality provisions).) The Pitchess privilege remains applicable to “personnel records” even after a peace officer leaves her or his employment, so long as the former peace officer was employed as an officer when the conduct being investigated occurred. (Gremminger, supra, 58 Cal.App.4th at 406.) The agency often argues that any disclosure of information related to complaint investigations should be limited to the names and addresses of witnesses, as typical in criminal cases. In the criminal context, disclosure was limited to names and contact information of witnesses and complainants because the court believed the information was sufficient for the requesting litigant to prepare his or her case. In civil litigation, however, the rationale for this limitation may not apply. The court in Haggarty v. Superior Court (Guindazola) (2004) 117 Cal.App.4th 1079, 1090 stated: The central rationale underlying the rule limiting discovery to witness identifying information is that the actual documents of third-party complaint information often have minimal relevance and constitute a substantial invasion of officer privacy. This reasoning
Pitchess Process continues 62 — The Advocate Magazine
FEBRUARY 2014
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does not apply in this case. As compared with the third-party complaint situation, the information contained in the Internal Affairs report is highly probative. Guindazola has the burden of proving the elements of his claims, and the investigation at issue concerns the very incident that is the subject of the civil claim. Additionally, Haggerty’s reasonable privacy concerns are diminished because he is the defendant in the litigation and the requested internal investigation records concern his actions that are alleged to be wrongful and will be fully litigated at trial. (Ibid.) Moreover, the criminal-case opinions explicitly hold that if the information disclosed proved inadequate, the requesting party is not precluded from discovering additional information from the personnel files. (See, e.g., Carruthers v. Muni. Ct. (People) (1980) 110 Cal.App.3d 439, 442 [recognizing right to receive additional discovery if initial disclosures prove inadequate]; City of Azusa, supra, 191 Cal.App.3d at 696-97 [noting that disclosure of additional information was proper under Pitchess, supra, where witnesses were unavailable for interviews or could not remember details of events about which they had complained]; Kelvin L., supra, 62 Cal.App.3d at 829 [approving disclosure of witness identification information, but noting that if for any reason that information was inadequate, petitioner could move for further discovery].)
The nuts and bolts of the Pitchess procedure
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The Noticed Motion Evidence Code section 1043 sets forth the requirements of the Pitchess motion, and states, (b) The motion shall include all of the following: (1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the
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MICRA
MICRA
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governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard. (2) A description of the type of records or information sought. (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. (c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records. A party must set forth with “some specificity” the type of information sought. (Warrick v. Sup. Ct. (City of Los Angeles Police Dep’t) (2005) 35 Cal.4th 1011, 1021.) The information requested
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must demonstrate that the party is not simply going on a fishing expedition. (City of Santa Cruz, supra, 49 Cal.3d at 85.) In City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, the Court found that “other complaints of excessive force” sufficiently described the type of records sought and met the standard for good cause. (See id., 49 Cal.3d at 90-91.) In addition, if a party is seeking records related to an excessive force claim, the motion must also include the relevant police reports on the circumstances of the force alleged. (See Evid. Code, § 1046.) The motion should be served on opposing counsel as well as the agency, or agencies, with custody or control of the records requested. (See Evid. Code, § 1043(c).) The Affidavit(s) Showing Good Cause The affidavit or declaration demonstrating good cause is the most critical component of the Pitchess motion. Evidence Code section 1043(b)(3) requires a showing of “good cause” by affidavit, which must demonstrate both “materiality” as well as a “reasonable belief ” that the government agency has custody and control of the records or
information from the records. An affiant need not, however, prove the existence of particular records – the “‘reasonable belief ’ . . . may be premised upon a rational inference from known or reasonably assumed facts.” (City of Santa Cruz, supra, 49 Cal.3d at 90 (emphasis in the original).) “This two-part showing of good cause is a ‘relatively low threshold for discovery.’” (Warrick, supra, 35 Cal.4th at 1019 (citing City of Santa Cruz, supra, 49 Cal.3d at 83); see also People v. Gaines (2009) 46 Cal.4th 172, 182 (accord).) These “‘relatively relaxed standards’ serve to ‘insure the production’ for the trial court review of ‘all potentially relevant documents.’” (Warrick, supra, 35 Cal.4th at 1016 (citing Santa Cruz, supra, at 49 Cal.3d 84).) “Information is material if it ‘will facilitate the ascertainment of the facts and a fair trial.’” (Haggerty, supra, 117 Cal.App.4th at 1086 (internal citations omitted).) The California Supreme Court articulated four factors by which a party can demonstrate materiality: (1) a logical connection between the information requested and the party’s claims at issue;
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(2) the information requested is tailored to support the party’s; (3) the requested discovery will support or is likely to lead to information that would support the claims; and (4) the theory under which
the information might be admissible at trial. (Warrick, supra, 35 Cal.4th at 1027; see also Gaines, supra, 46 Cal.4th at 182 (accord).) Obtaining information to impeach an officer’s credibility is permit-
ted. (Garden Grove Police Dep’t v. Sup. Ct. (Reimann) (2001) 89 Cal.App.4th 430, 433 (review denied).) Note, however, that the trial court is not tasked with evaluating whether a party’s theories are credible, or whether the party will prevail. The trial court does not weigh or assess the allegations, and does not determine whether they are persuasive. (Warrick, supra, 35 Cal.4th at 1025-1026.) A party is not required to present a credible or believable factual account of, or a motive for, police misconduct. (Uybungco v. Sup. Ct. (San Diego Police Dep’t) (2008) 163 Cal.App.4th 1043, 1049.) A party must simply present a plausible factual foundation for the discovery requested: a scenario that could or might have occurred. (Warrick, supra, 35 Cal.4th at 1026.) Importantly, the affidavit for “good cause may be submitted by counsel.” (People v. Memro (1985) 38 Cal.3d 658, 676, overruled on other grounds.) The California Supreme Court expressly allows counsel’s declaration to be made on information and belief – no personal knowledge is required. In fact, “the Legislature expressly considered and rejected a requirement of personal knowledge [for section 1043(b)(3) affidavits].” (City of Santa Cruz, supra, 49 Cal.3d at 8889 (emphasis in original. Indeed, “counsel need not disclose the source of the information asserted or how it was obtained . . . .” (Garcia v. Sup. Ct. (City of Santa Ana) (2007) 42 Cal.4th 63, 72.) The declaration may be filed under seal if necessary to protect the attorney-client or attorney work product privileges. (Id., 42 Cal.4th at 68.) Submitting a declaration by counsel protects a party from crossexamination on the document. Thus, the declaration lays out the theory of the case, explaining why the records are essential to the issue. If you are making a Pitchess motion, don’t be coy in the declaration. Lay out the facts, and demonstrate to the court why these records are crucial to your theory of the case. The declaration is your best chance to have a “presence” in chambers while the court is conducting the in camera
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review to determine which documents the court will order produced. The court generally will not stop the in camera proceedings to question you about why certain documents might be relevant, or request additional briefing on an issue. The declaration is your only opportunity to refute the agency’s objections to relevance in chambers. If you are opposing a Pitchess motion, scrutinize the supporting affidavit for whether the facts averred to adequately support the requested information. The In Camera Review and Production The court will conduct in camera review of the documents before ordering any of the records produced. On occasion, the custodian of records for the agency will appear with the relevant documents on the day of the hearing on the Pitchess motion, so the court may proceed with the in camera inspection right away. The court may also schedule the in camera review for a later date. Upon order of the court, “the custodian of records is obligated to bring to the trial court all ‘potentially relevant’ documents . . . .” (City of Santa Cruz, supra, 49 Cal.3d at 84.) [I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. . . [T]he locus of decision making is to be the trial court, not the . . . . custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive . . . . The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. (Mooc, supra, 26 Cal.4th at 1229.) To make an adequate record of the documents examined, the court may photocopy the records the custodian produced and place them in a confidential file, or the court can make a list of or state for the record the documents
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examined. (Sisson v. Sup. Ct. (Dumanis) (2013) 216 Cal.App.4th 24, 38.) A proper record facilitates any appellate review for abuse of discretion. To determine which records, if any, will be ordered produced, the court reviews the documents in camera for relevance. To be relevant, the records must contain information which may lead to the discovery of admissible evidence. (Gaines, supra, 46 Cal.4th at 182; Warrick, supra, 35 Cal.4th at 1024; Haggerty, supra, 117 Cal.App.4th at 1087.) The information discovered does not have to be ultimately admissible at trial. (Larry E. v. Sup. Ct. (City of Long Beach) (1987) 194 Cal.App.3d 25, 31-32.) The court may also consider whether the information may be obtained from business records,
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rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).) Despite the permissive standard of relevance, the Evidence Code places certain restrictions on what information can and cannot be disclosed. Evidence Code section 1045(b) enumerates specific exceptions to what information is per se not relevant and cannot be disclosed. Section 1045(b) finds that information that is not relevant includes: (1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.
(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit. Furthermore, “[r]ecords of peace officers or custodial officers, . . . including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking disclosure from the time of the arrest until the time of booking, or who were not present at the time the conduct is alleged to have occurred within a jail facility, shall not be subject to disclosure.” (Evid. Code, § 1047.) The court must also consider
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whether the information may be obtained from business records, rather than individual personnel records, where the issue concerns the policies or pattern of conduct of the employing agency. (Evid. Code, § 1045(c).) The in camera proceeding may take minutes, days, or even a series of hearings of a course of months. With the budget cuts, be prepared to provide a private court reporter. The transcript will be sealed, and any documents ordered produced will be subject to a protective order. At minimum, the protective order will prohibit the records disclosed or discovery from being used “for any purpose other than a court proceeding pursuant to applicable law.” (Evid. Code, § 1045(e).) The court may also issue a protective order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression” upon a showing of good cause pursuant to a motion of the agency or the officer. (Evid. Code, § 1045(d).) A Pitchess motion is a powerful tool to obtain information from the personnel records of peace officers, including
complaint investigations or disciplinary actions by the employing agency. Often, law enforcement agencies have dedicated Pitchess units to respond to – i.e., oppose – Pitchess motions. Understanding how the Pitchess process works will help you make an informed decision on how to best serve your client’s interests, whether you are making a Pitchess motion, or opposing one. Alyssa Schabloski is an associate with McNicholas & McNicholas, LLP in Los Angeles, California. Her practice areas include employment, catastrophic personal injury, medical malpractice, and wrongful death. Alyssa completed her undergraduate studies at Barnard College, Columbia University. After completing the JD, MPH program at UCLA, Alyssa was an ABOTA Fellow. She is admitted to practice in California and Arizona, and is a member of CAALA, CAOC, and the Cowboy Lawyers Association.
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FEBRUARY 2014
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Kimberly Wong
Looking beyond the driver’s seat Proving negligent entrustment or permissive use in vehicle liability cases Your client has been injured by a careless driver, but you discover that the driver is uninsured or underinsured. What can you do to try to maximize your client’s recovery? If the driver is not the owner of the vehicle that injured your client, there are two important areas to explore. First, investigate whether the incident occurred during the course-and-scope of the driver’s employment, in which case the driver’s employer, who likely has greater insurance coverage, would be vicariously liable for the driver’s negligent acts or omissions. If there is no potential course-and-scope of employment argument, the second area to explore is the potential liability and available insurance of the vehicle owner. Although the vehicle owner was not behind the wheel when your client was injured, the owner may nonetheless be legally and thus 76 — The Advocate Magazine
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financially responsible for your client’s injuries.
would exercise under similar circumstances in entrusting the vehicle.
Owner liability for negligent entrustment
Owner liability under permissive use statute
A claim of negligent entrustment may be made against an owner who entrusts a vehicle to a person who is incompetent or unfit to drive and the driver’s incompetence proximately causes injuries to another. Negligent entrustment is an independent theory of liability against the owner based on the act of entrustment, rather than on the vicarious liability of the driver’s conduct. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 419420; Blake v. Moore (1984) 162 Cal.App.3d 700.) Liability under this theory is based on general negligence principles, including a determination of whether the owner exercised the same care that an ordinarily prudent person
The vehicle owner may alternatively be liable under Vehicle Code section 17150, California’s “permissive use statute,” where the owner’s liability is statutorily based on the driver’s negligence and not on the owner’s own negligence. The “permissive use statute” provides that every vehicle owner is liable for the death or injury to a person resulting from the negligence of a person operating the vehicle with the owner’s express or implied permission. The legislative purpose is to protect the public from the careless use of automobiles. (Burgess v. Cahill (1945) 26 Cal.2d 320, 323.) But because liability is not based
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on the owner’s own culpability, the law limits financial responsibility of the vehicle owner to $15,000 for the death or injury to one person in a single accident and $30,000 for the death or injury to more than one person in the same accident. (Veh. Code, § 17151(a).) This contrasts a claim of negligent entrustment where there is no statutory limit on financial responsibility because liability is based on the owner’s own independent negligence.
Determining ownership of the vehicle While there is often no dispute regarding the ownership of a vehicle, an issue arises when the owner of the vehicle claims to have sold or transferred the vehicle before the incident. Vehicle Code section 5602 addresses what a vehicle owner must do to relieve himself or herself of statutory liability under the “permissive-use statute.” Vehicle Code section 5602 provides: An owner who has made a bona fide sale or transfer of a vehicle and has delivered possession of the vehicle to a purchaser is not, by reason of any of the provisions of this code, the owner
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of the vehicle so as to be subject to civil liability or criminal liability for the parking, abandoning, or operation of the vehicle thereafter by another when the selling or transferring owner, in addition to that delivery and that bona fide sale or transfer, has fulfilled either of the following requirements: (a) He or she has made proper endorsement and delivery of the certificate of ownership as provided in this code. (b) He or she has delivered to the department or has placed in the United States mail, addressed to the department, either of the following documents: (1) The notice as provided in subdivision (b) of Section 4456 or Section 5900 or 5901. (2) The appropriate documents and fees for registration of the vehicle to the new owner pursuant to the sale or transfer. It is the transferor’s burden to prove strict compliance with Vehicle Code section 5602, which means that the transferor who opts to satisfy subdivision (a) of the section must: (1) make proper
endorsement of the certificate of title; and (2) deliver the certificate to the transferee. Proper endorsement means to sign and date the certificate of title. (Enis v. Specialty Auto Sales (1978) 83 Cal.App.3d 928, 939; Laureano v. Christensen (1971) 18 Cal.App.3d 515, 521 (finding that the failure to date the certificate of ownership was not a proper endorsement to relieve the registered owner of liability).) Delivery means the actual change of possession from the transferor to the transferee; attempted delivery is insufficient. (Brennan v. Gordon Ball (1985) 163 Cal.App.3d 832, 837-838.) “Nondelivery of the certificate of registration, from whatever cause, operated as a failure to meet the several requirements of the option which [the seller] chose to exercise (citation omitted).” (Id. at 839.) In Brennan, the court found that the transferor was still the owner of the vehicle because although he gave the transferee the certificate of title in person, he failed to deliver the registration card as required by Vehicle Code section 5602. The transferor mailed the registration
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Driver’s Seat — continued card to the transferee’s last known address, which was unsuccessful in reaching the transferee. The court rejected the transferor’s argument that he should be relieved from liability based on substantial compliance. Note that there may be several owners of a vehicle at one time for purposes of liability under the permissive-use statute, even though no one possesses all of the normal incidents of ownership provided under Vehicle Code section 460. The owners include both: (1) the transferor of a vehicle who failed to notify the DMV of the transfer as prescribed in Vehicle Code sections 5600 et seq. (i.e. the registered owner); and (2) the transferee who had possession and control of the vehicle. (Bohannon v. Aetna Casualty & Surety Co. (1985) 166 Cal.App.3d 1172, 1175-1176.)
Permissive use of the vehicle
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Where the transferor has complied with Vehicle Code section 5602, the transferor has effectively shielded potential civil liability and has no permission to give or withhold to the recipient of the car. (Venne v. Standard Accident Insurance Co. (1959) 171 Cal.App.2d 242.) More recently, the court has stated that to relieve oneself of liability as an owner under the permissive-use statute, the registered owner “must strictly comply with section 5602 by endorsing and transferring the certificate of ownership to the new owner and notifying the DMV of the transfer.” (See, Savnik v. Hall (1999) 74 Cal.App.4th 733) (emphasis added).) The court’s use of the word “and” instead of “or” here appears to be a mistake as it is contrary to the language of Vehicle Code section 5602 which provides notification to the DMV of a vehicle transfer as an alternative rather than a requirement to relieve a registered owner of liability under the permissive use statute. Unfortunately, there are no more recent cases interpreting Vehicle Code section 5602 to clarify this discrepancy.
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Specializing in Eye-Related Side Effects of Head and Facial Injuries for Personal-Injury Patients
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If you can determine that the transferor of a vehicle is an owner, it is fairly straightforward to show that the driver was operating the vehicle with the transferor’s permission to establish owner liability under the permissive-use statute. The transferor of a vehicle who continues to be an owner for liability purposes because of his or her failure to comply with Vehicle Code sections 5600 et seq. relating to the transfer of vehicles, impliedly consents to use of the vehicle by the immediate transferee, subsequent transferees, and the permitted persons of all such transferees. (Uber v. Ohio Casualty Insurance Co. (1967) 247 Cal.App.2d 611, 617.) A person driving a vehicle with the consent of the current transferee uses the vehicle with the permission of every prior transferor who continues to be a coowner for liability purposes. (Ibid.)
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Insurance Code section 11580.1(b)(4) provides that every automobile liability insurance policy must include a provision “affording insurance to the named insured with respect to any owned or leased motor vehicle covered by the policy, and to the same extent that insurance is afforded to the named insured, to any other person using the motor vehicle, provided the use is by the named insured or with his or her permission, express or implied, and within the scope of that permission . . .” Insurance Code section 11580.1 does not require coverage for the permissive use of non-owned vehicles. (Gilmer v. State Farm Mutual Auto Insurance Co. (2003) 110 Cal.App.4th 416, 423.) The only coverage required for permissive use under this section is for vehicles designated in the policy. (State Farm Mutual Auto Insurance Co. v. MacKenzie (1978) 85 Cal.App.3d 727, 732.) It is important to verify that the vehicle owner had insurance in effect for the vehicle involved in the incident. This is particularly important in cases where there was an ineffective transfer of ownership because the transferor may have removed the vehicle from his or her insurance policy based on a mistaken belief that an effective transfer had
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been made. If removed from the policy before the incident, the insurer would have no obligation to provide coverage to the owner or to the driver using the vehicle with the owner’s permission. The case of Bohannon v. Aetna Casualty & Surety Co. (1985) 166 Cal.App.3d 1172 is instructive. Bohannon had given a car to his daughter as a gift after he had deleted the car from coverage under his insurance policy. His daughter subsequently injured a pedestrian with the car. Bohannon was still considered the registered owner of the car because no one had notified the DMV of the transfer to his daughter. The injured pedestrian sued Bohannon under theories of permissive use, negligent entrustment, and negligent maintenance. Bohannon then filed suit to determine coverage under his liability insurance policy. Although Bohannon
qualified as a covered person under the policy, the insurer denied coverage for the pedestrian’s claim based on an exclusion in Bohannon’s policy that excluded coverage for vehicles that he owned but did not qualify under the policy as a “covered auto.” The policy defined “covered auto” as an auto identified in the insurance declarations. The Court found that this policy exclusion applied because Bohannon could not have had any reasonable expectation of coverage after specifically deleting the car from the insurance declaration as a covered auto and that the insurer could not have assumed the risk for providing coverage for the car after Bohannon’s deletion.
Conclusion
In cases where the driver responsible for your client’s injuries is uninsured or
underinsured, it is important to investigate all potential avenues of recovery to obtain maximum compensation for your client. When the responsible driver is not the owner of the vehicle, the plaintiff ’s attorney should prioritize exploring potential course-and-scope of employment and negligent entrustment theories against the vehicle owner because these claims have no limits on damages. Where such theories are not supported by the facts, the Vehicle Code’s “permissive use statute” may support a limited claim against the vehicle owner. Kimberly Wong is an associate at The Veen Firm, San Francisco. She litigates complex catastrophic injury cases involving negligence, wrongful death, products liability, industrial accidents, and exceptions to workers’ compensation exclusive remedy doctrine.
FEBRUARY 2014
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Jeffrey KrivisConsumer Attorneys Association of Los Angeles
The argument as a persuasive tool in negotiation Monty Python can teach us a lesson There is a famous sketch by Monty Python in which the lead character (Michael Palin) is looking to buy a fiveminute argument. He walks into an office where the receptionist offers him some options. One of the options involves a person who is too conciliatory. She decides that there is a good argument available and directs him to a private room where another character swears at him and basically terrorizes him with “abuse.” Palin complains, indicating he was looking for an argument. The abuser apologizes and indicates that Palin has entered the wrong room; that he has entered the “abuse” room, and directs him to the argument room down the hall. Palin enters the argument room and the character played by John Cleese proceeds to have a truly petty argument with him, consisting of Cleese and Palin directly contradicting each other. As expected, Palin gets frustrated because he believes he didn’t get what he paid for, a real argument. He proceeds to define an argument as “a collective series of statements to establish a proposition. … an intellectual process, while contradiction is just the automatic gainsaying of anything the other person says.” They then discuss what a real argument is until Cleese shuts the whole thing down by ringing a bell signifying the end of the session. Palin thinks the argument was too short but is unable to communicate with Cleese unless he pays him more money. Cleese declines to respond except to state that he cannot argue until Palin pays him. Palin then uses logic and reason to demonstrate that Cleese is wrong, Cleese becomes silly and says he “might be arguing in his spare time.” Frustrated, Palin leaves the argument and goes to the complaints room. This sketch is notable in its simplicity for demonstrating not only the humor in the argument, but the sheer delight 84 — The Advocate Magazine
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some people receive while engaging in an argument. Clearly argument has a significant role in the legal process, particularly in advancing motions and appellate procedure. Whether and to what extent it fits into a negotiation process is subject to debate.
Why do we argue?
Daniel Cohen, a professor at Colby College poses the broad question: “Why do we argue?” In asking this question, Professor Cohen rhetorically wonders why doesn’t the winner of an argument necessarily win? What does it matter? Why do we try to convince people to our position? His response breaks the subject matter down into three models of argument: (1) Arguments as War – This is an adversarial structure based on confrontation with the result being winning or losing. It is generally not a very helpful model because it shuts down learning and listening, yet it is entrenched in our culture, particularly our civil justice system. (2) Arguments as Proofs – This model is akin to an argument. It is designed to force the participants to ask questions like: Does it work? Is it any good? Are the premises warranted? Are the inferences valid? Does the conclusion follow from the premises? (3) Arguments as Performances – This is also known as the rhetorical model. An example of this approach would be a politician trying to convince an audience of a platform, or when a law professor asks Socratic questions of his students. This method is used in a more participatory way, such as when a jury renders a judgment that decides the case. Arguments are a form of a testing ground for ideas. They are effective if used appropriately but can backfire if deployed indiscriminately. The problem with utilizing arguments in the context of our legal system is that the Arguments as
War approach dominates the system, shapes how we think about and conduct litigated arguments. It is a one-size-fitsall method that is like spraying bullets across the sky and hoping to hit at least one pigeon. In the militaristic sense, this model encourages strong arguments with a lot of punch. The arguer would want to defeat the other side with killer arguments, and powerful attacks; to be on target in order to shoot down the enemy. Cohen maintains that this model has deforming effects on how we argue because it 1) elevates tactics over substance; 2) magnifies the differences in making it US vs. THEM, which is polarizing, where the only foreseeable outcomes are victory and defeat; 3) prevents negotiation or deliberation or compromise or collaboration; 4) leads to gridlock in conversation. How can we find ways of arguing to yield something positive from these various models of arguments? Cohen believes that the answer lies in finding new exit strategies for arguments. I interpret this to mean that we recognize their legitimate and valuable utilization in our justice system but adapt their methods to the particular forum that would make them more effective. This won’t happen until we have new entry approaches to arguments. This would require litigators to not only consider new kinds of arguments, but subtler methods to arguing that take into account their entire audience and constituents.
The roles people play
In order to create the most value out of an argument, it might be useful to consider all the roles that people play in arguments. In an adversarial argument, there is a proponent and opponent whose goals are designed to persuade, inform or motivate another person. In Arguments as Proof, the logical reasoner is a prime constituent that is addressed.
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Imagine an argument in which you are both the arguer and a member of the audience observing the argument from 30,000 feet. You might lose the argument, but in the end you are simply proud of the way you argued. Our legal education has created a system that tends to reward good arguments with a pat on the back, but not necessarily a finding in favor of the arguer. In the context of a mediated process, the issue is which form of argument makes sense? Litigated cases tend to use the Arguments as War model. We try to “crush” the other side; “bomb” them with discovery; “rip them apart” on the witness stand. When this is deployed in a mediated process, conversation is stopped and the process grinds to a halt. Mediated cases in which this approach is the primary tool rarely result in settlement. Many advocates tend to utilize the Arguments as Proof model in mediation. This could be useful if used in moderation and not designed to intentionally put your adversary in a corner. When people are put in a corner, they tend to shut down. Modest doses of information as support for a proposition, or validation for a position taken, makes eminent sense. Overloading your adversary with statistics and spreadsheets is a recipe for failure. Litigators should consider the sandbox they are playing in. If the process involves a motion for summary judgment where the court is looking for a persuasive approach that demonstrates legal support for factual premises, Arguments as Proof might apply. The same would hold true for an appellate procedure. A jury trial might utilize an Argument by Performance where investment of the audience in reaching the solution is key. Arbitration would be similar to a jury trial, but the audience is more sophisticated from a legal perspective and would not need as much emotional input. In a mediated process, where does the argument fit in and which model works? Clearly there is an inherent tension between Argument as War model and the mediation process. The tension
lies in the premise that mediated cases are built upon a less adversarial process than a trial or arbitration. In a mediated dispute, the Argument as War model will serve no useful purpose except to cause the other side to resist all efforts at persuasion. This in turn will result in less opportunity to influence the other side because the other side is not listening. Arguments as Proof have their place in a mediated resolution provided they are not overused and relied upon exclusively to influence the other side. Statistics and data are often critical to evaluate such things as likelihood of class certification and potential damage exposure. When they are the only tools in the arsenal of persuasion, they eventually become static and lose their punch. Arguments as Performances tend to fit more appropriately in mediated cases because they ask rhetorical questions without taking a hard line one way or another. The asking of the questions is the true influencer in a case. Asking rhetorical questions and looking for intellectually honest responses will keep the conversation moving forward and provide justification for offers and counter offers. Like the other models, this approach should be conducted in moderation, with an emphasis on keeping dialogue moving forward rather than inhibiting your adversary from communication. In the final analysis, mediation, like the sketches in Monty Python, is like theatre. In order to succeed, the actors must keep the scene going forward without denying the other actors the opportunity to be heard. Arguments work on the stage provided they are done in a way that maintains the flow of the scene, allows conversation to be fluid, and doesn’t box in the other players. Jeffrey Krivis has been a private commercial mediator with First Mediation Corporation since 1989, and teaches at the Straus Institute for Dispute Resolution at Pepperdine Law School.
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hot
Gary M. Paul
Dismantling opposing experts and rehabilitating retained experts Strategies to minimize your damage while inflicting maximum harm to the other side The first thing to realize is that the title of this topic references the two sides of a coin. Dismantling an expert is something that the plaintiff and defense attorney will both be attempting to achieve and both will be hoping to rehabilitate their own experts from any damage inflicted. So you must first recognize that your goal is to inflict the most damage on their expert and minimize the damage to be inflicted on your expert.
Inflicting damage
What are the steps you need to take to inflict the most damage to their hired gun? Let’s start with the most common methods: • Destroy the expert’s credibility with the jury with non-opinion issues. Bias – who does the expert normally testify for and how often? This can be effective but it really needs a significant percentage for one side or the other – in my opinion, greater than 85 to 90 percent in order to be effective.
Money – establishing that a significant portion of an expert’s income comes from legal work can often be compelling, but, again, it must be significant and it must be tied to a great percentage of testifying for the defense. • Attack the expert’s credibility by calling into question their opinions and the basis for them. Get to know everything about the opponent’s expert. Go online and search the Web. Find articles they have authored. Obtain transcripts from depositions or trials in which they have testified. Go on the listservs and find out who else has dealt with the expert and get all the information you can on what to expect when the expert testifies. In other words, do your homework. Once you have prepared, prepared, and prepared some more, you will hopefully be ready for the expert’s depo. That’s when the next rule becomes extremely important. • Don’t blow it in the depo! Once you have the data and material
to destroy the expert, what do you do with it? Consult with your own expert. Tell your expert what you have found. Discuss with your expert how to attack the adverse expert’s opinion. Develop the cross-examination approach and get ready for the depo. Gauge the effectiveness of your information. How likely is it that you can be so amazing in depo that the adverse expert gives up or your opponent gives up? In my experience, not so often does that happen. Unless you feel totally sure you can destroy the expert and send them crying from the room, make the depo a fact-finding exercise. Get out all of the opinions, all of the bases for them, and once you make sure you have them all – only then do you shut the depo down. Far too many times I have been present when adverse experts were grilled at depo with all the good stuff; they parried the questions and took notes of what they
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had to prepare for at trial! Don’t fall into that trap. • So, unleash the strong attack at trial. Attack their credibility first with the material you found on bias, money, percentage for the defendant, etc. Tarnish them a little with the jury. • Then switch to their opinions and the basis for them. Did they review all the materials, review the available literature, do the proper calculations, do a report, etc.? Then go after their opinions with all the homework you did and the input from your expert. Pin them down – do not let them wiggle off the hook. No new opinions are allowed, since if you did your job in depo, they gave you all their opinions in the depo. Drill home on one or two decisive points. Hammer those points home with the witness and finish on a strong note!
Rehabilitating your expert
All of those steps I just discussed above apply to your expert but in reverse. You must develop the same information on your expert and be prepared to bring out the good, the bad and the ugly in your direct of your expert. If money and testifying for the plaintiff are going to be an issue, bring it
out first. Inquire of your expert about how much they are being paid, how much they have made in testifying, how often they testify for the plaintiff and why it may hurt, but less than when the defense brings it out. Bring out any bad news like being blocked from testifying or stains on their reputation professionally – articles rejected, etc. Tough to deal with, but again better than the defense doing it. Ninety-five percent of the battle of credibility is getting it out first. The worse scenario is the expert who does not let you know of something bad, and you learn about it first on cross examination. I always let my expert know that I demand that they tell me of any skeletons in the closet. There never should be a surprise. But if it happens, act like it is no big deal. Do not show your disgust in front of the jury. Pray for a break before the redirect so you can beat the heck out of your expert and find something to salvage the situation. Failing that, try to decide if it hurt your client that bad and, and if not, let it go. If it hurt too badly, then go in and try to salvage something of your expert’s reputation. This is where being a trial lawyer can be a real burden! But in the
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Conclusion
Handling an expert, including your own expert, can be challenging, but like anything else we do, it’s preparation that matters. Gary Paul is a partner at Waters, Kraus & Paul in the firm’s West Coast practice. He has spent more than three decades as a trial lawyer in complex civil matters such as consumer and medical product liability, medical and professional malpractice, commercial and insurance litigation, and employment and labor law. Paul recently served as president of the American Association for Justice (AAJ) from 2011 to 2012. He has also served as president of the Consumer Attorneys of California (CAOC) and Consumer Attorneys Association of Los Angeles (CAALA) and remains active on the Board of Governors of all three organizations. He has been recognized multiple times by the CAALA and CAOC for outstanding service to the legal profession and his community, including an election to the CAALA Hall of Fame and an unprecedented second award as CAALA’s Trial Lawyer of the Year in 2008.
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Aimee Kirby
Practicing law and practicing parenthood A single mom and PI attorney tells you how she does it – and why When I was a little girl, if you would have told me that at 35 I would be divorced, with two kids under ten, and living part-time in San Francisco; I would have died laughing. Then I would have asked… where is San Francisco? I had developed a specific master plan for my life in second grade, after a book report on Sandra Day O’Connor. Until quite recently, I was on my way to carrying out my carefully laid-out plan. You see, I grew up in Manhattan Beach, and still live, albeit half the month, in this little beach town I love. It is a bubble here, where the moms are amazingly perfect in size xs Lululemon yoga pants, sports bras with tank tops, and Havaiana flip flops all day. The fathers all work in finance or somehow have retired at 50. Wikipedia says Manhattan Beach has a population of roughly 35,000 people with only 6.4 percent of 35,000 being female households with no male. I would venture to say .01 percent of that 6.4 percent are divorced, single, home-owning moms. It is a very strong local community where everyone waves to you while walking to school. But to be honest, I feel quite awkward, as if I am wearing a scarlet letter when I drop the kids off at school in a suit. Our principal actually said, at my daughter’s kindergarten orientation, that if the moms picked afternoon studies they could make it to the mall and tennis before pickup. Part of me longs for unlimited time with my children and the luxury these other moms have. However, in my heart, I always knew I would be a better mom working outside of the home. My plan started off smoothly, as my grade point average, and my inability to do math in high school limited my career path. Somewhere between re-taking algebra II, missing too many classes to run to the beach, and being suspended for a school prank, I learned by my senior year that I loved storytelling. I also 88 — The Advocate Magazine
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learned that I had the ability to think very quickly on my feet, and that very little interested me other than boys and literature. During our last semester, while in a Parents’ College Preparation Class, my mother literally cheered when they said with my B average I could have my choice of state colleges. I honestly think she believed that after sneaking out way too many times, getting a tattoo, and my belly button pierced while in Venice, that my little sister was the only one that would find her way to college. I want to stop here to remind my mother, who also is an attorney and probably reading this, that I never threw a party at the house wherein alcohol and the electronics were stolen, and I never got in a fist fight… that was all my sister, Allison. In college, my love for literature led me to Bachelors of Arts in English Literature with an emphasis in Creative Writing from Loyola Marymount. I graduated early and realized that a Liberal Arts degree was for the most part useless. Quite quickly, I found myself at Southwestern School of Law at 19. In two years, I had a law degree and a shiny little card that authorized me to deal with monumental events in people’s lives at 21. My first court appearance was in Long Beach, and when I tried to use the attorney entrance line while still awaiting my bar license card, the deputy asked, “Don’t they give young ones like you learner’s permits before letting you
loose?” I franticly showed him the newspaper clipping saying I passed the bar and my driver’s license. He laughed and let me in. While in law school I fell in love with my ex-husband. We lived together, and then right on schedule, I was married at 22. Little Ema Grace was born when I was 26 on the eve of trial against the Orange County Transit Authority, and Jacob when I was 28. We bought a lovely home in the Tree Section in Manhattan Beach and settled into married life. By 32 I realized that my marriage was failing and that, despite my best efforts, I would soon find myself alone. What seemed like a simple plan was unraveling, and if I have to be honest, so was I.
A pause in the story
My narrative and life story stopped due to the trauma of the divorce, right there. I was stuck in a pain that was very real and debilitating, not unlike a death in the family. Friends I was once close to saw my situation as contagious, and playdates and dinners stopped. I go back to this point seared in time, when I think about what we do for a living. I think of my job as getting 12 people to relate to my client, to be part of the effort that picks him or her up from their event and allows them to move forward. I have a terrible need to fix and solve, because that brings me peace. If I can fix hundreds of people, perhaps then I, too, can be complete again. After divorce attorneys reduced my life and finances into 42 pages of a lifetime of direction, called a judgment, I became the 6.4 percent. This was a deeply difficult time. I questioned whether I had done the right thing a million times. I didn’t sleep much and was generally numb at this point. For the first time since I could remember my direction was lost and I was scared. I was told to “clean up the mess I created” and it wasn’t talked much about then and isn’t now.
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For a while I couldn’t say divorce without crying. I associated so much guilt with the word and I was ashamed to utter it in front of strangers. My whole life I had spent searching out and mastering every task I was given, but now I felt that I had failed in the most significant role I had, wife and mother. I was at risk of letting the demise of my marriage erode my confidence and conviction in the other areas of my life where I was, and I remain, a success; my role as a mother, friend, mentor, coworker, fierce advocate, and perpetual student-of-life. So I set about rebuilding and trying to get a handle on this new unscripted life for me and my now family of three.
Rebuilding
I threw myself into training for marathons in what I believed to be a lessthan-obvious escape from the pain. Eventually, I stopped running and dealt with reconstructing what was left of my perfect little life in this perfect little town. After holding a ridiculously large mortgage over my head for far too long, to secure the family home to maintain stability, I finally sold the property and bought a more sensible cottage for my children and me. The children had nightmares and struggled, although I moved just a few blocks away and kept them in the same school. After the house was sold, I began interviewing for a new position after 13 years at my firm. I joke that the only thing I didn’t change during this short time was my hair color. It’s 6:30 a.m. on a chilly beach morning and Ema is putting her new earrings on from Claire’s, and Jacob is putting two different socks and shoes on. Jacob is going through a mismatch stage. I am convinced that his teacher believes I don’t own one pair of matched shoes or socks or that I have a severe allergy to laundry. In a charcoal suit, full make-up and heels I am funneling wet dog food into a dog dish. It globs into the dog dish with a slush, and I pause to think why is it my dogs beg for this, as if I am handing them the world. Then
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Practicing — continued
I remember they frequently also drink out of the toilet bowl. I look over at Jacob, who has brushed his teeth, but is rinsing with a glass of apple juice he had with breakfast. (His nickname at school is “nature boy” because, when he was playing basketball, he thought peeing in a bush was better than stopping and running to the bathroom.) I consider disciplining him, but to be honest, I didn’t say brush and rinse with water. Ema’s wearing so many colors that she could act as the crossing guard. I am madly dashing from here to there, trying to ensure that the kids are off to school with lunches packed, and I make the 8:30 a.m. office conference call. These mornings are the majority of my life, not jury verdicts, speaking at conferences, or writing articles. This is my idea of the practicing law and parenthood. I try to do my best, and hope no one is looking when I am not. Without a plan, I am enjoying the mere fact that I am employed at a firm I love which provides me tremendous support to be what I had dreamed of, a mother and a trial attorney. I still find it
incredible I ended up here, and that I have a boss who is such an amazing father, husband and mentor to his staff. It seems quite surreal. It must be fate that he survived a horrible motorcycle accident, I needed a job and a change, and he needed a senior attorney. I still find it ironic that I, who did motorcycle cases exclusively, had just tried one such case that he had passed on when this all occurred. It makes me feel that God exists. After the death of my marriage and leaving my firm, I drew on all my resources and found strength and happiness. Most importantly, I found peace to practice the way that feels right and to help people. So, my advice to the younger me, and hopefully hundreds of women trying to have it all, is as follows: • Never be afraid to be a parent as a woman trial attorney. As a parent, I believe my advocacy skills and work ethic are strengthened. I gave up on a regular sleep pattern years ago, so there is a good chance I will work a 10 hour-plus day. I mediate interfamily disputes daily, and as such have an acute sense of
compassion, restraint and patience. In addition, it adds to the experiences I can share with clients and juries, thus allowing me to get them to feel and invest in a client. I often get asked what is so different about a female trial attorney; my answer sounds very similar to what I said above. • Define what “having it all” means in your own way. For me it means a happy medium in pursuing trial work and being a wonderful mom and a good person. Not everyone’s “happy” will be marriage, kids and a home. There is no set path, and once you get over the scary part of that, it is quite wonderful. Don’t be afraid to scratch it all and start all over if one path really was God awful. •Don’t be afraid to ask for help and to be vulnerable, if it is authentic. My kids listen not when I raise my voice but when I show them that their actions have hurt their mother or disappointed her, and I need their help. Also be prepared to give back help when asked, without strings attached. • Measure your success through what kind of parent, friend or partner you are. All of what we do means nothing if we
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fail in this regard. Think of the Atticus Finch ending, and those around us who find themselves living that reality. I came off the heels of co-trying the largest case of my career, a verdict only an elite few women make it to, and yet that isn’t why I feel I am succeeding right now. I was quite miserable then. • Take time for you. Always remember that if you are not at your best you will not be able to be your best. As a mom I lock myself in the shower for 15 minutes in the morning, and I can only faintly hear “MOMMA” 15 times. I also drive extra slow to pick up the kids. This is my “me” time. • Surround yourself with people who are open to ideas and sharing, and be open to drinking all that in. People who like seeing others succeed and who raise others up rather than put them down are essential. Never believe you have learned how to practice law. If you have any more than the essential ego necessary to do trial work, please check that promptly at the door. A great thank you to all the ladies that have guided me in this regard (Chris, Lisa, Jill, Dena, Christa, and many others).
• Show compassion to everyone. My first med-mal case involved a hateful attorney from a major defense firm in Los Angeles. She had mastered the “nasty fax” to a tee, and discovery-dumped so well that it brought me to tears. I thought, “That woman deserves to be shipped somewhere the sun doesn’t shine.” I met up with her in Vegas 10 years later, where she indeed was shipped out to from her prior firm. It still makes me smile. Karma exists. I put that all on the transcript and had great fun doing so. • Never underestimate how complimenting someone can affect their morale. My boss is amazing at acknowledging hard work and achievement. I don’t need a marching band, but that little recognition has me up at four most mornings, working. • Have fun and get involved. Some of the best times I have had are being a trial attorney. It is engrained in who I am and how I see myself. I am proud of the work we all do at CAALA. I am happy to see us in the community helping others. They say it takes a village to raise a child. It also takes a village to raise a good trial attorney.
• Be a great mentor. Every year I participate in the AAJ Mock Trial Competitions as a judge. I do this because it brings joy to my heart to see all these young advocates interested in the practice of law. I also do this because I love seeing what one word of advice can do in someone’s career. I also have a young associate, Ms. Mary Barnes, who I am proud to say I get to mentor and show her what the younger me wishes she was taught. It is amazing to see her flourish, and her ideas come to life. I hope she is a better trial attorney than I am, and that she will continue advocacy in the plaintiff ’s bar. Aimee Kirby is a Senior Trial Attorney at the Dolan Law Firm. She splits her time between Los Angeles and San Francisco, dealing with serious-injury litigation. She is licensed in California, Arizona, Texas, Nevada and Georgia. She has twice been nominated for Trial Lawyer of the Year by CAALA. She is also the Vice President of the Trial Lawyer’s Charity and is the proud mother of Jacob and Ema.
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Elizabeth A. Hernandez
Motions in limine Motions in limine play a critical role in pretrial and trial strategies The purpose of making a motion in limine is to obtain an evidentiary ruling in advance. The Latin term “in limine” means “at the threshold.” The “threshold” is the beginning of trial. A motion in limine is a motion used in civil lawsuits to preclude evidentiary issues or conduct before they are seen or heard by a jury. A motion in limine is also used to permit the introduction of evidence.
Authority for motions in limine
While many types of motions are governed by specific statutes (i.e., motions for summary judgment, motions to compel, motions to quash, etc.), motions in limine are different. Motions in limine are not expressly authorized by statute. Instead, authority for motions in limine may be implied from the court’s inherent powers. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939. These inherent powers include the power to: • Provide for the orderly conduct of proceedings before it, or its officers. (Code Civ. Proc., § 128 (a)(3)) and • Control its process and orders so as to make them conform to law and justice. (Code Civ. Proc., § 128 (a)(8))
Procedural requirements
California Rules of Court, rule 3.20(a), which preempts all local rules relating to pleadings, motions, and the form and format of papers, does not apply to motions in limine since they are recognized as part of the trial proceedings. (See Cal. Rules of Court, rule 3.20(b)(1).) Since California Rules of Court, rule 3.20(b)(1) allows local rules relating to motions in limine, many courts have additional rules regulating these motions. For instance, Superior Court of Los Angeles County, Local Rules, rule 3.57 details the showing that must be made in support of and in opposition to a motion in limine. Motions in limine are not noticed motions. California Rules of Court, rule 3.1112(f) provides that: “a motion in 92 — The Advocate Magazine
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limine filed before or during trial need not be accompanied by a notice of hearing.” Considering that motions in limine are regulated by the court’s inherent powers, including the power to control the proceedings, counsel should find out the trial judge’s preferences regarding the timing and form of motions in limine.
Timing
There is no uniform practice for counsel to follow regarding when motions in limine should be filed and served and when they are heard by the court. The same is true with respect to when oppositions and replies to motions in limine should be filed and served. The timing and place of the filing and service of the motion in limine are at the discretion of the trial judge.” (Cal. Rules of Court, rule 3.1112(f).) Counsel should check the local rules to determine the exact timing of filing and serving a motion in limine. Each court and courtroom will have different timing issues. For example, in the Los Angeles Superior Court, if you have a “personal injury” (“PI”) case and are assigned to one of the PI courts (currently Departments 91, 92 and 93 at the Stanley Mosk Courthouse), then before filing motions in limine, “the parties/counsel shall comply with the statutory notice provisions of Code of Civil Procedure (“C.C.P.”) section 1005 and the requirements of Los Angeles Superior Court Rule (“Local Rule”) 3.57(a).” (See, Amended General Order - Final Status Conference, Personal Injury Courts, effective as of July 19, 2013). Oppositions and replies to motions in limine are subject to the usual motion calendaring. However, in the San Francisco Superior Court, motions in limine must be served by mail “at least ten (10) days before the date set for trial or personally served at least five (5) days before the date set for trial.” Oppositions must be personally filed and served no later than the date set for trial.
(See, Superior Court of San Francisco County, Local Rules, rule 6.1.) Counsel also need to check whether there are any “local-local” rules (the trial judge’s own courtroom rules). Counsel must find out if the trial judge has any standing orders regarding pretrial motions. If there are no standing orders, then counsel will need to speak to the trial judge’s clerk to find out about any specific requirements the judge has regarding motions in limine. Counsel should also be prepared for a judge to make last minute changes on when the motions in limine will be heard. Courts frequently hear the motions in limine shortly before the first day of trial while other courts hear the motions on the first day of trial. There are no set standards or guidelines regarding motions in limine and each judge is different. The bottom line is...do some investigating, check the local rules and make appropriate inquiries to find out what your trial judge requires.
Meet-and-confer requirement
Counsel should meet and confer before filing motions in limine. Many jurisdictions require counsel to meet and confer regarding motions in limine – i.e., Superior Court of Los Angeles County, Local Rules, rule 3.57(a)(2); Superior Court of Fresno County, Local rules, rule 2.6.1. Many judges will not consider a motion in limine unless counsel have met and conferred before the motion is filed. Through the meet-and-confer process, counsel may determine it is more worthwhile to stipulate to issues involving typical trial matters rather than waste the court’s time with an unnecessary motion in limine. The meet-and-confer process is essential to narrow down the list of motions in limine a party may have to file and that a judge needs to hear.
Stipulations
Many standard issues, i.e., day-today trial logistics and common professional courtesy, should be addressed and
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disposed of in a stipulation between counsel rather than in motions in limine. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 670-672. These standard issues include, but are not limited to: • document authenticity • exclusion of witnesses before testimony • financial information • mention of insurance coverage • use of demonstrative evidence • admission of uncontested reports Asking the trial judge to address these standard issues before or during trial is inefficient and unnecessary. Instead, those issues should be resolved between counsel through a stipulation.
Effective uses of motions in limine
Form of motion in limine Most courts require written motions in limine. (See e.g., Super. Ct. L.A. County, Local Rules, rule 3.57; Super. Ct San Francisco County Local Rules, rule 6.1.) However, counsel is not necessarily precluded from making an oral motion in limine during trial. (Kelly v. New West Federal Savings, supra, 49 Cal.App.4th at 669). The motion in limine and any opposing papers should be filed separately with their own points and authorities, supporting declarations and other evidence. California Rules of Court, rules 3.1110, 3.1112 and 3.1113 provide key procedural requirements regarding the format of motions in limine. Counsel should carefully review these provisions of the California Rules of Court to make sure they are in compliance. The caption of each motion in limine should specifically and clearly identify the substance of the motion. For example, counsel should not title the motion as “Plaintiff ’s Motion in Limine No. 1.” The court will have no way of knowing what the moving party is requesting – What type of evidence does the moving party want excluded? Be clear and precise. The better approach would be to title the motion in limine as “Plaintiff ’s Motion in Limine to Exclude Evidence of or Reference to any abuse of alcohol and illegal or controlled substances by plaintiff.”
It’s also a good idea to consecutively number each of your motions in limine. Some courts require consecutive numbering so again, it’s imperative to find out what your trial judge prefers. The moving papers should include: • A brief description of the evidence sought to be excluded or admitted – Be direct and clear so the court immediately knows what the issue is that needs to be determined. • Provide facts to support why the evidence should be excluded or admitted. • Provide a legal explanation why the evidence is properly excluded or admitted. • Cite supportive legal authority. Any oppositions to motions in limine should also be direct and clear. In simi-
larity to motions in limine, the opposition should state the grounds for the opposition in the caption and in the beginning of the opposition along with supporting facts and legal authority. Find out from your judge or clerk whether proposed orders are necessary. Being clear, succinct and to the point will immediately draw the court’s attention to the evidence which is the subject of counsel’s motion in limine. Reasons for motions in limine The primary advantage of the motion in limine is to avoid the futile attempt of trying to undo the harm done where jurors have been exposed to damaging evidence, even where stricken by the court. This scenario has been described as “the obviously futile attempt
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to ‘unring the bell’ in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.) Most motions in limine are filed by a party to limit or prevent certain evidence from being presented by opposing counsel at the time of trial. The purpose of a motion in limine is to prevent the introduction of matters at trial which are irrelevant, inadmissible or prejudicial. Some key statutes to rely on in excluding those types of evidence from being introduced at trial are Evidence Code sections 350 and 352. Evidence Code section 350 provides that “[n]o evidence is admissible except relevant evidence.” Evidence Code section 350 permits the exclusion of irrelevant evidence. (See also, People v. Kelly (1992) 1 Cal.4th 495, 523, 3.) Evidence Code section 352 is a key provision that allows the court to exclude evidence when “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Another key statute is Evidence Code section 402 which allows the court to hear and determine questions of admissibility of evidence outside the presence or hearing of the jury. Excluding irrelevant evidence (i.e., prior arrests, but no felony convictions) and prejudicial evidence (i.e., graphic
and gruesome photographs of injuries) before trial and keeping it out of the jury’s hands is essential for any plaintiff ’s attorney or defense counsel.
Ineffective uses of motions in limine
Avoid making mistakes in bringing a motion in limine for an ineffective or improper purpose. Some common pitfalls to avoid include, but are not limited to, the following: 1. Do not file a motion in limine to exclude evidence which is clearly inadmissible. Do not waste your time or the court’s time trying to have a motion in limine heard on an obvious matter that can be Proudly Celebrating Ove dealt with quickly at trial. If your motion in limine is seeking a declaration Jonnell of exist- Agnew & Associa ing law, then your motion is unnecessary. For example, bringing a motion on the following serves no purpose since the law already addresses these issues: Proudly Celebrating • precluding non-designated experts 30 Years of Excell from testifying • precluding lay witnesses from offering opinion testimony • excluding undisclosed evidence except for impeachment purposes 2. Do not file a motion in limine to exclude evidence which is not supported by facts or law. The court in Kelly specifically provided that matters which are lacking in factual support or argument are not properly the subject of motions in limine. (Kelly v. New West Federal Savings, supra, 49 Cal.App.4th at p. 670.)
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3. Beware of filing motions in limine which are really disguised motions for summary judgment. Although motions in limine have the effect of excluding evidence, they are not motions for summary judgment where very different rules apply. A motion in limine to, in effect, assert a late-filed motion for summary judgment or summary adjudication is improper. (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451; Los Angeles County Superior Court rule 3.57(b).) 4. Beware of filing motions in limine which are really disguised motions to compel brought after the discovery cut-off and motion cut-off dates have passed. Although motions in limine often deal with the exclusion of evidence, they also deal with the admission of evidence. Counsel should not address violations of the discovery rules in motions in limine which should have been timely dealt with in a motion to compel. The key case regarding the proper uses and abuses of motions in limine is Kelly v. New West Federal Saving (1996) 49 Cal.App.4th 659. The Kelly case offers an instructive discussion about how motions in limine should and should not be used. All counsel should take the time to read it.
Obtain a ruling from the court
Make sure the motion, the court’s
ruling and the reasons for the ruling are all made on the record to preserve the objection for appeal. If the judge makes a pretrial ruling, then all counsel are bound by that ruling during the trial. If the judge excludes the evidence, then it may not be mentioned in trial or argument. However, if the judge decides not to make a pretrial ruling on the motion in limine, counsel should: (1) Ask the court to clarify that the evidence may not be referred to until the judge makes a ruling; and (2) At the time a party wants to introduce the evidence which is the subject of a motion in limine, the party should ask for a ruling on the deferred motion. If the motion in limine is granted, then all counsel have the duty to inform their associates, witnesses, clients and any other persons under counsels’ control that no mention or display of the excluded evidence should be made in the presence of the jury.
firm’s boilerplate motions in limine will be inefficient and a waste of the court’s time. Certain issues can be stipulated to during the meet-and-confer process. An ill-conceived or vague motion in limine will consume the court’s valuable time and may not be granted. Furthermore, filing motions in limine which involve inconsequential or obvious issues is counterproductive. Remember that trial judges want to resolve pretrial issues efficiently and quickly, so stipulate with opposing counsel to standard issues and file motions in limine that matter. Elizabeth A. Hernandez, Esq. is an associate at the Law Offices of Michels & Lew in Los Angeles. Her areas of practice include Medical Malpractice, Catastrophic Personal Injury, Elder Abuse and Sexual Abuse litigation. Her professional associations and memberships include: (1) Consumer Attorneys Association of Los Angeles, Emeritus Board Member; (2) CAOC, Member and on Forum Editorial Board, and (3) Evelyn Grace Foundation - Board Member - a foundation created to support the fight against pediatric cancer. Ms. Hernandez has been a speaker at various seminars and has also written many legal articles which have been published in CAOC’s Forum and CAALA’s Advocate.
Conclusion
Well-conceived and thoughtful motions in limine will be effective to define and narrow the issues at trial. Be sure to take the time to carefully craft motions in limine so they are customtailored to the case at hand. Using your
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John F. Denove
Mirror, mirror on the wall Mirroring as a technique to improve rapport with jurors Mirroring is the behavior in which one person copies another person’s gestures, movements, body language, tone and expressions. The purpose of mirroring is to improve rapport. One group of researchers has found that when a waitress mimicked her customers, her tip amounts significantly increased. I’m not suggesting that trial attorneys are waitresses; or that jurors are customers; or that verdicts are tips; but mirroring will increase your rapport with jurors. Mirroring has been studied by researchers interested in NeuroLinguistic Programming (NLP) and non- verbal behavior. Neuro-Linguistic Programming focuses on how people convey information and how information is received. Researchers believe that mimicking is hard-wired in the human brain. Infants have been shown to smile, stick out their tongues, and open their mouths when they see someone else doing the same. Scientists have found that the parietal and pre-motor cortices of the brain contain mirror neurons. Mirror neurons are active when one watches someone perform an action; as well as when one performs the action oneself. Mirroring has been referred to as a chameleon effect. This type of mimicry occurs outside the conscious awareness, and without any attempt to imitate. In the article “The Chameleon Effect as Social Glue: Evidence for the Evolutionary Significance of NonConscious Mimicry” in the Journal of Non-Verbal Behavior 27(3), Fall 2003, the authors state: Initially, mimicry may have had survival value by helping humans communicate. We propose that the purpose of mimicry has now evolved to serve a social function. Non-conscious behavior mimicry increases affiliation which serves to foster relationships with others. 96 — The Advocate Magazine
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person during conversation establishes feelings of closeness and rapport. This develops trust. What could be better than trust between a trial lawyer and a juror? Non-conscious mirroring, the adoption of behavior, postures, or mannerisms of others, allows individuals to maintain harmonious relationships with fellow group members. Consider when two people live together for a long time and enjoy a good relationship. They are constantly mirroring each other’s facial and verbal expressions.
The authors note that our ancestors lived in an environment in which individuals who were on their own were not always able to survive or successfully reproduce. Being accepted into a group assisted in locating and securing food sources and shelter, and defending against predators.
Friend or foe
Each of us has engaged in mirroring or mimicry and subconsciously experienced others who have mirrored us. When you meet someone for the first time, your subconscious quickly assesses whether they are friend or foe, just as other animals do for survival reasons. When two people engage in non-verbal mirroring, the subconscious recognizes that the other person is just like them. This urge to mirror others is hard-wired into the brain because cooperation leads to being accepted into a community and the community provides safety and security. While this may be of interest to scientists, how can trial lawyers tap into this and make it work for their clients? In a study performed in the late 1960s, researchers found that people perceived others as more similar to them when their behaviors were congruent. People who show similar postures are judged to have higher rapport. Mirroring with a
Chemistry
As trial attorneys, we do not have years to form a relationship with a juror. The bond must be formed within minutes. Can this be accomplished? It can. Think of someone who is charismatic: a politician, an actor, an uncle or a colleague. What makes that person charismatic and why do we immediately form that favorable impression? These are questions that we do not consider when listening to the charismatic speaker. We cannot explain why, but we know there is a “chemistry” between us and the speaker. We feel like we “clicked.” It is possible that this person has mirrored us. When there is a similarity of expression and/or movement, we subconsciously believe that person is friendly. The key to establishing this rapport is to adopt an overall state that is similar to the other person. People tend to like people that are similar to them. They feel that they can understand the other person. They begin to feel secure. If this is true, how can a trial lawyer learn to effectively mirror the prospective jurors during voir dire? Although mirroring is about making a connection with the unconscious mind, to successfully use mirroring you need to consciously practice it. Begin your study of mirroring by observing groups of people who are comfortable interacting with
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one another. Watch their body language. Listen to their tone of voice. Notice the speed of speech. When you have watched a number of people and observed how they mirror one another, next try to mirror people with whom you are friendly. If they use their left hand to brush the hair from their face, use your opposite hand (the mirror image) to brush the hair from your face. This is called postural mirrorimage mirroring. Although not as effective, if the person moves the left hand and you move your left hand, a subconscious connection is still created. One can also practice crossover mirroring. This occurs when one person’s movement is matched with a different movement. If a person is tapping their hand on the desk, you might consider tapping your foot with the same rhythm. If a person moves his leg, you can do a crossover mirror by moving your arm. One effective mirroring technique is to mirror a person’s breathing . Develop the ability to inhale when they inhale and exhale when they exhale. Unless a person is short of breath, it will be difficult to differentiate inhalation from exhalation. Instead of looking at a person’s chest, look at their shoulders. The shoulders rise on inhalation and fall on exhalation. Some believe that you can cause another person to mirror you. Think about the times someone you don’t know has smiled at you. Without consciously intending to smile back, you do so. When someone raises their hand and gives you a slight wave, you instinctively wave back. Watch how people in a group will smile or frown along with the speaker.
unintentional byproduct of two minds. The more you practice mirroring outside of court, the more natural it will be. Don’t try to imitate every gesture every time. When the juror is talking, observe the gestures they use and use those gestures when you are speaking to the juror. Mirroring is just one of the many techniques that a trial lawyer can use to build rapport. No one technique is the silver bullet that will cause you to win every case. If the facts are against you and the law is against you, you will probably lose. Mirroring, however, will assist in establishing a rapport so that your jurors don’t start out rooting for the other attorney.
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Be subtle
Before you attempt to mirror your juror’s movements or their manner of speech, you have to practice mirroring so that you do so subconsciously. If the person you mirror perceives that you are deliberately doing so, you not only fail to create a rapport, you create suspicion and hostility. The most important rule to follow in mirroring is to be subtle. Your mirroring should seem as if it were an
John F. Denove specializes in major injury, medical malpractice and insurance bad-faith litigation. He was named Consumer Attorneys Association of Los Angeles’ Trial Lawyer of the Year in 1993 and received the Ted Horn Memorial Award in 2001. He also received the CAOC Presidential Award of Merit in 1994, 1996 and 2000, CAOC’s Outstanding President of the Year Award in 2000 and the Edward I. Pollock Award in 2006. He is a Past President of CAALA; Member of CAOC’s Board of Directors; Diplomate of the American Board of Trial Advocates; Executive Committee Member of the Los Angeles Chapter of ABOTA; Past President of the Italian American Lawyers Association; Member of AAJ; Member of Trial Lawyers for Public Justice; and Past President of the Cowboy Lawyers Association.
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
About this Issue Appellate Reports
and cases in brief
Jeffrey Isaac Ehrlich
Cases of Editor-in-Chief interest to members of the plaintiffs’ bar Alter ego; inequitable results; waiver of alter-ego allegations: Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2014) __ Cal.App.4th __ (2d Dist., Div. 6.) Relentless sued Airborne in a contract dispute involving the sale of an airJeffrey Isaac plane, winning a judgment andEhrlich attorney’s fees. Relentless was unable to collect on its judgment. It moved in the trial court to add Airborne’s principals (the Fultons) and two other companies they owned as judgment debtors. The trial court found that the Fultons and their companies were, in fact, alter egos, but it declined to Bythe Jeffrey Isaac Ehrlich add them to judgment, finding that Editor-in-Chief Relentless had not shown that treating Airborne as a separate entity from the Fultons and their other companies would produce an inequitable result. Reversed. Relentless was not required to establish that the Fultons acted with wrongful intent when they took money out of Airborne to pay their own bills or to fund other businesses. All that is necessary is proof that treating Airborne separately would produce an inequitable result. Since Relentless was unable to collect on its judgment as a result of the Fulton’s conduct, that failure is an inequitable result as a matter of law. Relentless was not required to pursue alter-ego discovery before trial, or to sue Airborne’s suspected alter egos as parties. There are valid public-policy advantages to not having every dispute involve discovery into the ownership of the parties involved and their financial dealings. Relentless had therefore not waived its right to file a post-judgment motion to add Fulton and their companies to the judgment on an alter-ego theory. Arbitration; Federal Arbitration Act; appellate review: In re: Wal-Mart Wage and Hour Employment Practices Litigation (9th Circ. 2013) __ F.3d __
About this Issue
Book Review
98 — The Advocate Magazine
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Burton and Bonsignore were appointed by the district court as class counsel in a wage-and-hour action against Wal Mart. The case settled for $85 million in 2006. The parties agreed that any fee disputes among plaintiffs’ counsel would be arbitrated. The district court made a fee award of $28 million. Burton and Bonsignore could not agree to an allocation of the fee award, and the dispute was submitted to “binding, non-appealable arbitration.” The arbitrator awarded $6 million to Burton and $11 million to Bonsignore. Bonsignore moved to confirm the award, while Burton moved to vacate it. The district court confirmed the award and Burton appealed. Affirmed. The court rejected Bonsignore’s argument that the non-appealability language in the arbitration agreement deprived the court of jurisdiction over Burton’s appeal. The provision is ambiguous and can be interpreted to either deprive only the district court of the right to review the arbitrator’s decision, or to deprive both the district court and the Court of Appeals of jurisdiction; the latter view does not comport with the Federal Arbitration Act (“FAA”). Judicial review of arbitration awards under the FAA is limited to the grounds provided in the FAA and may not be supplemented by contract. Similarly, the grounds for vacating arbitration awards specified in the FAA cannot be waived or eliminated by contract. [Editor’s note – by contrast, arbitration under the California Arbitration Act allows parties, by contract, to make the arbitration reviewable or not reviewable on appeal.] Waiver of the right to appeal: Ruiz v. Cal. State Auto Ass’n Interinsurance Exchange (2013) __ Cal.App.4th __ (1st Dist., Div.4.)
Ruiz filed a class action against CSAA alleging that premiums were being disguised as finance charges. The case settled for payments by CSAA of up to $6.5. million, depending on the number of claims filed, plus certain non-monetary relief estimated to be worth $3 million. CSAA agreed not to oppose a fee award that sought less than $2.3 million, or an incentive provision giving Ruiz up to $10,000 – but the agreement stated that Ruiz and class counsel would accept the lesser of these amounts or what the court actually awarded. The trial court awarded fees of $350,000 and an incentive award to Ruiz of $1,250. Ruiz and class counsel appealed. Reversed. The published portion of the opinion deals with the court’s rejection of CSAA’s argument that by agreeing to accept the lesser of the specified figures or what the trial court awarded, counsel and Ruiz impliedly waived their right to appeal the trial court’s award. While a party can waive the right to appeal, such a waiver must be clear and express, and any doubts will be resolved against finding a waiver of the right to appeal. Here, the language the parties used did not contain an unambiguous waiver of the right to appeal. The agreement could be construed to mean that the parties would “accept” the award made by the trial court, but did not agree that they would not appeal it. Attorney’s fees; FEHA; disparity between size of fee award and underlying damage award; supporting declarations: Muniz v. UPS (9th Cir. 2013) __ F.3d __ Muniz sued her employer, UPS, under the FEHA. UPS removed to federal court, where the case was tried. The jury awarded her $27,820 in damages. The district court awarded fees in excess of $700,000. The award included
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Anti-SLAPP statute; television anchors; free speech; discrimination; protected conduct: Hunter v. CBS Broadcasting, Inc. (2013) __ Cal.App.4th __ (2d District, Div.7.) Kyle Hunter filed an employmentdiscrimination lawsuit against CBS, which alleged that two local CBS stations had “repeatedly shunned him for numerous on-air broadcasting positions due to his gender and his age.” He alleged that KCBS chose not to renew his contract of its then weather anchor Johnny Mountain as “part of a plan to turn prime-time weather broadcasting over to attractive females.” CBS filed an anti-SLAPP motion, which was denied. The trial court found that Hunter’s claims arose from its discriminatory conduct, not the exercise of any constitutionally protected rights. In light of this ruling, it did not address the issue of whether Hunter could establish a reasonable probability of prevailing at trial. Reversed. FEBRUARY 2014
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Appellate — continued
An act is in furtherance of the right of free speech if it helps advance that right or assists in the exercise of that right. California courts have previously recognized that reporting the news and creating television shows qualify as the exercise of free speech. When assessing whether acts constitute a protected activity, courts must distinguish between the acts that underlie the plaintiff ’s claim and the claimed illegitimacy of those acts. Hunter’s gender and age-discrimination claims arise from CBS’s decisions concerning a choice of a weather anchor, which were rights in furtherance of its first-amendment rights. Whether CBS had a gender or aged-based discriminatory motive in not selecting Hunter as a weather anchor is an entirely separate inquiry from whether Hunter’s discrimination claims are based on CBS’s employment decisions. Code Civ. Proc. § 998 offers to compromise; form; sufficiency of acceptance: Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280 (4th Dist. Div.3.) Rouland and his wife sued PSIC for breach of contract and bad faith arising out of its denial of their claim for damage to their home, which was damaged in a landslide. Two months before trial, PSIC served separate offers to settle
under section 998, offering to pay each of its insureds a specified amount in exchange for general releases and dismissals with prejudice. Both offers stated, “If you accept this offer, please file an Offer and Notice of Acceptance in the above-entitled action prior to trial or within thirty (30) days after the offer is made.” The Roulands did not accept either offer. After a five-week trial, a jury returned a verdict in favor of PSIC. PSIC filed a cost bill that included expert fees of $331,000, based on the rejected 998 offers. The trial court granted the Roulands’ motion to tax, finding that PSIC’s 998 offers did not comply with the requirements of section 998. Reversed. The Legislature amended section 998 in 2006 to specify the requirements for a valid offer and acceptance. The offer must be in writing and “include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” (§ 998, subd. (b), italics added.) “Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by
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the accepting party.” (§ 998, subd. (b).) The purpose of these provisions is to eliminate uncertainty by removing the possibility that an oral acceptance might be valid. Recent decisions agree that failing to comply with the acceptance provision requirement invalidates the offer, but they do not provide clear guidance on how to satisfy that requirement. Here, Pacific Specialty included each offer and acceptance provision in a single document. The acceptance provision stated, “If you accept this offer, please file an Offer and Notice of Acceptance in the above-entitled action prior to trial or within thirty (30) days after the offer is made.” The Roulands claim that this is insufficient for two reasons: (1) it had no line for them to accept the offers by signing them “as included in Judicial Council form CIV-090”; and (2) it “had no language ... which stated that [the Roulands] shall accept the offer[s] by signing a statement that the offer[s are] accepted.” The court rejected both reasons. The judicial council acceptance form is optional; not mandatory. Nothing in the statute’s language requires an offer to include either a line for the party to sign acknowledging its acceptance or any specific language stating the party shall accept the offer by signing an acceptance statement. Indeed, no “magic language”
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or specific format is required for either an offer or acceptance under section 998. Pacific Specialty’s offers satisfied section 998’s acceptance provision requirement because they informed the Roulands how to accept the offers (file an “Offer and Notice of Acceptance” with the trial court) and the identified means of acceptance satisfied the statute’s requirements for a valid acceptance (a writing signed by the Roulands’ counsel). The court remanded the matter to the trial court to determine whether PSIC should recover its attorney’s fees. Code Civ. Proc. § 473, subd. (b); excuse of defaults; mandatory relief; summary judgment; bad lawyering: Las Vegas Land and Development Company, LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086 (2d Dist., Div. 3.) Purchaser of commercial real estate brought an action against the seller for breach of contract and fraud. The seller moved for summary judgment, which the plaintiff did not oppose. The trial court granted the motion and judgment was entered against the purchaser.
Approximately six months later, the purchaser filed a motion for relief from default under § 473, subd. (b), explaining that it had not filed an opposition to the motion because of “bad lawyering.” It explained that it could not obtain an attorney affidavit of fault because one attorney was being prosecuted for stealing money from the plaintiff, and the other had cut off all contact. The motion asked for leave to file an opposition to the summary judgment motion and argued that relief was mandatory. The “motion for relief ” was denied on the following grounds: (1) Plaintiff did not file a copy of the proposed opposition with the motion for relief; (2) no affidavit of fault was submitted; and (3) the failure of Plaintiff ’s counsel to “perform effectively” did not “constitute a sufficient ground for setting aside a motion for summary judgment ruling.” Plaintiff appealed. Affirmed. The provision in section 473, subd. (b) for mandatory relief does not apply to summary judgments, which are not a “default,” or a “default judgment or dismissal.” There is a split of authority
on this issue, but the more recent cases hold that summary judgments are not included within the statute. And there is no exception to the requirement in the mandatory-relief section that the moving party file an attorney affidavit of fault. Moreover, the record does not show that the Plaintiff was abandoned by its attorneys. Rather, it shows that when its lawyers informed Plaintiff of the need to file an opposition to the motion, the Plaintiff told them that it had hired other lawyers to do the work. Even if the attorneys had abandoned the plaintiff, the proper remedy is discretionary relief under section 473, which is not limited to defaults, default judgments, or dismissals. 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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From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
From the Executive Language andDirector the written
word
Stuart Zanville
Advice toCAALAtrial lawyers from two famous authors I don’t know if it’s a sign of my age time, hearing the word mouse, that you or my generation, but I really like lanthought of a small gray rodent? Or heard guage and the written word. I guess the word Web and thought of a spider?” that’s one reason why I’m beginning my Doctorow’s speech made me think tenth year writing this column. about trial lawyers and the language they When I listen to songs, I prefer the use in everyday communication. It’s not words to the music. My favorite that the language has been stolen, but Stuart Zanville Broadway composer is Stephen the words have far different meanings CAALA Sondheim, a gifted musician but a truly than the way Webster’s defines them. remarkable lyricist. Law jargon The movies I enjoy most are the Lawyers love to use jargon, slang, ones with great dialogue, not the ones acronyms and telegraphic speech. Words with the best computer-generated scenes. that are nouns to the general public When it comes to language, I’m become verbs to the lawyers or just have amused at the way words have lost their a completely different meaning. These meaning or at least no longer mean what include words like defense(d) (the other they once meant. Stuart Zanville Consumer of Los Angeles or what happens when you don’t attorney I recently came acrossAttorneys remarksAssociation by win) or words like calendar, open and close the author E.L. Doctorow that made me that are both nouns and verbs to a think about trial lawyers and how they lawyer. communicate. Stay with me here, you’ll Then there are words that have a understand in a minute. completely different meaning to lawyers The Internet such as bench, bar, futures and briefs. And Doctorow spoke at the 2013 National how about ding or paper when it comes to Book Awards ceremony, where he a judge or first chair or second chair which, By Stuart Zanville received the NBA’s Medal for of course, describe who is the lead counConsumer Attorneys Association of Los Angeles Distinguished Contribution to American sel in a trial. Letters. He spoke in part about the Some words take on different meanInternet, specifically the language of the ings and then become part of the Internet. lawyer’s lexicon. A cap is a limit and a He pointed out that “text is now a capper is a person who recruits accident verb; that a search engine is not an engine, victims for a personal-injury lawyer. The a platform is not a platform, and a bookmeds are medical records but future meds mark is not a bookmark because an are the cost of medical treatment. e-book is not a book.” Abbreviations or shortened (teleHe went on to say that “a cookie is graphic) words like chiro, neuro, psych, stip, not a chocolate chip cookie, the Cloud is rog, or depo are used more often than the something that may be somewhere in the real words they represent. sky, though not to produce weather and And then there are acronyms. Surfing is an activity with neither a surfLawyers love acronyms the way toddlers board nor waves to ride.” love alphabet soup. He told the group that “language In no particular order, here are just has been stolen or, more charitably, a few acronyms I see every day in commetamorphosed. When was the last munication from CAALA members: PI,
From the Executive Director
From the Executive Director
102 — The Advocate Magazine
FEBRUARY 2014
PMK, DME, FSC, MSC, OSC, UD, MSJ, IC, CMC, UIM, GAL, ADR, SLAPP and of course, the dreaded MICRA. Sometimes a statute becomes a term unto itself, i.e. 170.6 or 998. And they, too, are used interchangeably as nouns or verbs. I’m sure that each of you can add to my lists, but the above are examples I personally come across regularly. I began this column by quoting E.L. Doctorow and I will end by quoting George Orwell.
Orwell on writing
In 1946 Orwell wrote a famous essay on writing. In it he gave five simple rules that if followed, will make you a better writer. Today, nearly 70 years later, the rules still apply: • Never use a metaphor, simile, or other figure of speech which you are used to seeing in print. • Never use a long word where a short one will do. • If it is possible to cut a word out, always cut it out. • Never use the passive where you can use the active. • Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent. Orwell wrote, “These rules sound elementary, and so they are, but they demand a deep change of attitude in anyone who has grown used to writing in the style now fashionable.” Doctorow was talking in his speech about a writing style that is now fashionable. Although Orwell couldn’t have imagined email or the Internet when he wrote his essay on language, both authors offer valuable advice to trial lawyers and even Executive Directors. Contact: Stuart@caala.org
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From the President Casey Johnson
Orange County Trial Lawyers Association
O.C. Justice: Access and accountability Justice is not an oxymoron The challenges of 2014 are already apparent with the release of Governor Brown’s proposed budget, which returns only $105 million to California’s judiciary. While these figures will serve as a starting point for many months of negotiations in Sacramento, they reflect the stark reality that trial courts in California will almost certainly remain dramatically underfunded in the coming year. Some experts estimate that $250 million would need to be returned to California’s trial courts in order to keep them running at their current (and wholly insufficient) levels. Even if $250 million in court funding is recovered, changes are likely to be detrimental to civil litigants in Orange County. Despite this glaring reality and the uphill battle civil litigants face thorough the State, this year’s theme for the Orange County Trial Lawyers Association is “O.C. Justice: Access and Accountability.” This theme reflects a growing sense of pride among the Orange County Plaintiffs’ bar; a reassurance to broadcast throughout the State of California that even in a traditionally conservative jurisdiction like the O.C., a dedicated group of pro-consumer professionals will continue to work tirelessly to ensure that Justice may be had.
Quest for access
This year the quest for access refers not only to physical access to the courts − access that continues to be threatened by inadequate court funding – but also to a victim’s ability to bring an action to seek redress for harm in the first instant. Each year hundreds of pieces of legislation and requests for support are brought before governing bodies, ranging from local city councils and boards of supervisors all the way to the United States Senate, with the specific intent of limiting
a victim’s right to seek compensation for harm suffered. In fulfilling the third prong of OCTLA’s mission (“Promotion and support of laws which correct injustice and protect access to the civil justice system”), OCTLA’s leadership and members will continue their efforts, locally and statewide, to return adequate court funding and speak out against any efforts to limit consumers’ rights. Accountability this year speaks to several different issues. First, accountability reinforces the principle that access to justice necessarily requires that plaintiffs have the legal ability to seek redress from wrongdoers. Access and accountability truly work hand in hand. Second, accountability requires that a victim’s access to justice not be prolonged unnecessarily. At any hint of a defendant or defense counsel seeking to capitalize on congested courts, efforts must be undertaken to hold them accountable, including, requests for sanctions. Zealous advocacy for our clients dictates that we not allow opposing counsel or opposing parties to prolong litigation by refusing to provide full and complete, Code-compliant discovery responses. Such strategies act by essentially putting a stay on the litigation until a motion to compel can be heard, usually many months, and sometimes even up to a year, later. This strategy is commonly met with supplemental responses served contemporaneously with an opposition to the motion suggesting the motion is now moot in light of the supplemental responses. Such a strategy is an abuse of the discovery process and is being utilized solely to delay justice. We must work to hold parties who engage in such conduct accountable. Without consequences for such behavior, how can we expect it to change?
Third and finally, accountability requires that wrongdoers, no matter their profession or title, be held responsible for the full measure of a victim’s damages, and not protected by outdated and artificially set limits that shifts burdens and costs to taxpayers and away from wrongdoers. The Draconian MICRA limits amount to nothing short of corporate welfare, and after more than 38 years, we must go on the offensive and fight for what is right and fair for victims of medical malpractice. Period. End of discussion. O.C. Justice is not an oxymoron. OCTLA’s talented and committed Board of Directors is committed to the fight and will spend 2014 dedicating a majority of its time and effort working to ensuring that all consumers have access to courts and the ability to hold wrongdoers fully accountable – in Orange County and throughout the state. No easy task for a group operating behind the orange curtain. But if we aren’t proactively fighting for full justice for all consumers then are we really consumer advocates?
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Sacramento Update By Nancy Peverini Consumer Attorneys of California Legislative Director Where were you in 1974? Some of you may not have even been born in 1974. As for me, I was happily and blissfully rocking out to BTO’s “You Ain’t Seen Nothing Yet,” singing along with Bob Marley’s number one hit, “No Woman, No Cry,” crying along to “Love Hurts,” and dancing to the Grand Funk Railroad’s “Locomotion,” while trying to avoid “The Streak.” In 1974, Richard Nixon was President, the median household income was $11,197, the cost of a gallon of gas was 53 cents and the average car cost $3,750. Also in 1974, California lawmakers approved the current (and unchanged) minimum “Financial Responsibility” limits for auto insurance, which require auto-insurance policy holders to carry at least $15,000/$30,000/$5,000 in coverage. This old law has stood at that low threshold for going on four decades now. It’s time for a change. A bit of history: California motor vehicle liability insurance became mandatory in 1974 with approval of California Vehicle Code section 16056. Aside from mandating insurance coverage, it set the 15/30/5 limits. What was reasonable coverage in 1974 is pretty darn unreasonable today, what with inflation quadrupling the price of almost everything in the intervening decades. The policy behind mandatory insurance is perfectly sound: The law should ensure that an injured party is made whole again after an accident. But the state’s current minimum coverage levels make this goal impossible. The current minimum limits are dangerously low, creating undue hardships in even perfunctory cases where injuries and damage eclipse those low limits. Under those conditions, sound policy dictates an increase in the minimum liability limits so that all California residents are provided a much better and safer level of protection. There are over 38 million people in California and 24 million licensed drivers. With the average cost of a new car well over $20,000 today, anyone who has been in even a minor fender-bender can attest to the fact that the current property damage limit of $5,000 is inadequate. In addition, costs for medical and emergency services have increased considerably over the decades. Raising the Financial Responsibility limits will increase the chance that accident victims will be adequately compensated when injured by a person who has purchased only the minimal coverage. Further, an increase is necessary to give Californians the same protections enjoyed by drivers in other states. As of now, California ranks near the bottom. We are one of only five states with such low limits. Pennsylvania and New Jersey have similar low limits; only
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Florida and Louisiana have even lower limits. All other states enjoy a higher threshold of mandated auto insurance protection. Even Guam has higher limits than the Golden State. An increase in California’s limits would simply bring us in line with national averages. California is unique in that we have a low-cost auto insurance program. Established by the Legislature in 1999, the program is designed to provide income-eligible motorists with liability insurance protection at affordable rates as a way to meet California’s financial responsibility laws. CAOC has launched an effort to work with the low-cost auto insurance program and low-income drivers in order to ensure the continued availability of low-cost insurance options in our state as we seek to increase the mandatory minimum limits to a fairer amount. Unfortunately, this will not be an easy change despite its common sense. We can expect strong opposition from the state’s insurers who have continually resisted any changes to the current law. But we’ve never been deterred by stiff opposition. The current financial responsibility limits are simply behind the times. Let’s get the locomotion started.
Washington Update By Linda Lipsen CEO, American Association for Justice Budget deal “fixes” Ahlborn decision to detriment of injured plaintiffs The Bipartisan Budget Act (BBA), which was just approved by Congress and signed into law, contains language damaging to plaintiffs covered by Medicaid. We are tirelessly working to eliminate this provision before it goes into effect in October 2014. The provision in the new law overturns a unanimous 2006 United States Supreme Court decision in United States vs. Ahlborn. In Ahlborn, the Court ruled that only the portion of the settlement that represented payment for medical expenses could be claimed by the state Medicaid agency. The BBA allows a state to claim ALL of a settlement or judgment. The BBA also counters a 2013 Supreme Court decision (Wos v. E.M.A.) that rejected (6-3) North Carolina’s lien on Medicaid claimants’ tort recoveries. We expect the result of the new law to be that plaintiffs who are Medicaid recipients will recover less and in many cases will be unable to pursue claims at all because any recovery would have to be reimbursed to Medicaid. We will keep you posted on developments.
I secu Marc I hav with exc
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Calendar
Consumer Attorneys
February 25, 2014 Judges Panel Evidence Seminar Registration & Reception: 5:00pm Program: 6:00pm Biltmore Hotel Downtown Los Angeles
ASSOCIATION OF LOS ANGELES
CAALA Consumer Attorneys Association of Los Angeles
Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Feb. 6, Mar. 6, Apr. 5, May 1
800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org
Advertiser’s Index
ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .99 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .38 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .52 Rubin, Charles “Skip” . . . . . . . . . . . . . . . . . . . . . . . . .38 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .63
Attorneys – Accepting Referrals (cont.) Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .19 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .61 Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . .29 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Vartazarian Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .30
Announcements and Career Opportunities CAALA Affiliate Membership . . . . . . . . . . . . . . . . . . .79 CAALA Legal Education Center . . . . . . . . . . . . . . . . .75 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .77
Court Reporters Atkinson Baker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .58
Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Mahacek, Jim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Steven B. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Attorneys – Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .67 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90, 91 Danz, Stephen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Dolan Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .51 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Gelber, Bruce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .62 Kamanski Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .35 Law Offices of Marc I. Zussman . . . . . . . . . . . . . . .105 Law Office of Michels & Lew . . . . . .Inside Back Cover
106 — The Advocate Magazine
Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . . .94 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Expert Witnesses – Medical Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . . .74 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .31 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .59 Expert Witnesses – Technical & Damages The TASA Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .83 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . . .86 Farber, Patrick (Struct. Settlements) . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .45 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Summit Structured Settlements . . . . . . . . . . . . . . . . . .64 The James Street Group (Structured Settlements) . . .26 Zea, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99
FEBRUARY 2014
Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Mar. 20, Apr. 17, May 15 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Mar. 20, Apr. 17, May 15 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Feb. 18, Mar. 18, Apr. 15, May 13
Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .44 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 MotionLit Video Group . . . . . . . . . . . . . . . . . . . . . . . .85 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Information Service Providers West, A Thomson Reuters Business . . . . . . . . . . . . . . .73 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .39 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .21 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .20 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .82 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . .70 ABC Virtual Offices . . . . . . . . . . . . . . . . . . . . . . . . . .80 USA Express Legal & Investigative Services . . . . . . .95 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .27 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .34 North Valley Eye Medical Group . . . . . . . . . . . . . . .82 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . .32 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 Verdict Reports Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
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on
CAALA Connection & Resource Center
Connect with New CAALA Members: We welcome the following new members who joined CAALA during the month of December Tina Abdolhosseini Katherine Hight Isaac Kohen Sean Timmons
ces
Glendale University College of Law
Attorney at Law
Kenechi Agu
David Jacobson
David Lopez
Brad Wixen
Loyola Law School
David Lopez Law
Brad Wixen Law
Law Offices of Kenechi R. Agu
Stephen Cerrato Attorney at Law
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Offices
Assn.
Mostyn Law Firm
Megan Klein
Joshua Praw
Carey Wood
Law Offices of Eslamboly Hakim
Law Offices of Richard A. Fisher
Bohm Law Group
Kyle Dominguez Bohm Law Group
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Law Offices of Isaac Kohen
Craig Rackohn Rackohn & Rackohn
New CAALA Affiliate Vendors
Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects. 360 Financial Planning, LLC 593 Mountain Blvd. Oakland, CA 94611 Contact: Douglas Arnest E-mail: doug@360financial.com
Authentic3d 40701 Woodward Ave., # 250 Bloomfield Hills, MI 48304 Contact: Tom Bambrick E-mail: tbambrick@authentic3d.com
Plaintiff Support 6400 Main Street #120 Williamsville, NY 14221 Contact: Helen Jones E-mail: hjones@plaintiffsupport.com
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Advantage Representatives P.O. Box 25978 Los Angeles, CA 90025 Contact: Karen Magarian, MA, DC E-mail: drmagarian@xprteye.com
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Kessler & Kessler, A Law Corporation 1800 Avenue of the Stars, Suite 400 Los Angeles, CA 90067 Contact: Joan Kessler E-mail: jkessler@kesslerandkessler.com
CATEGORY: Orthopedics | Pain Management | Slip & Fall Podiatric physician/surgeon specializing in injuries and treatments of foot and ankle. Surgeries/Treatments rendered on lien basis. Currently a member of the Doctors on Liens.
CATEGORY: Arbitration/Mediation With a law career spanning over 25 years and a Ph.D. in communications, Joan Kessler, Esq. is a uniquely qualified mediator and arbitrator whose training and education allow her to communicate effectively with attorneys and all parties involved in her matters.
Plaintiff Support offers a variety of non-recourse investments in plaintiffs’ litigation and litigation funding. We are committed to preventing overfunding, and we assist in helping the plaintiff with their daily financial needs, giving you and your client time to maximize the value of the claim. Plaintiff Support is the only non-recourse funding company exclusively endorsed by The National Trial Lawyers (NTL). Simpluris, Inc. 3176 Pullman Street, #123 Costa Mesa, CA 92626 Contact: Cassydy Ratiu E-mail: cratiu@simpluris.com CATEGORY: Class Action/Claims Administration Simpluris, Inc. is a national class action settlement administrator with a strong focus on customer service. We handle all cases with efficiency and accuracy.
FEBRUARY 2014
The Advocate Magazine — 107
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From the President Geoffrey Wells
Consumer Attorneys Association of Los Angeles
Reflections on representing senior citizens How to measure how much we do really matters As I start my first year as your president, I find myself reflecting on what it is that we do for a living and why it is so important for those we represent. Sometimes we wonder if what we do really matters. The loss of a loved one due to someone’s negligence. A serious injury that has forever changed someone’s life. Many of our clients begin an endless search for accountability, justice and closure.
Clara and Joseph
Recently, I ran across one of the most powerful stories of the year in the Los Angeles Times about Clara and Joseph Gantt titled, “Missing POW’s Remains Returned to his Widow 63 Years After His Death”. (Los Angeles Times, December 13, 2013.) This was the story of Army Sergeant First Class Joseph Gantt, who told his wife before he went off to World War II that if he didn’t come back, she should re-marry. She told him “no” and that he was it for her for life. For 63 years, the WWII and Korean War Veteran was missing in action and was presumed dead, but Clara Gantt, now age 94, held out hope and never remarried. Apparently, Sgt. Gantt had been taken prisoner by North Korean forces in December 1950 and died in March 1951. However, his remains were only recently returned to the U.S. and identified for his spouse. Last December, on a cold, dark morning at LAX, his remains were returned in a flag-draped casket to his widow, Clara, who stood from her wheelchair and cried a lifetime of tears upon his return. She told reporters at the airport, “He was a wonderful husband, an understanding man. I always did love my husband, we was two of one kind, we loved each other. And that made our marriage complete.” 108 — The Advocate Magazine
FEBRUARY 2014
Amazingly, Clara Gantt was able to sum up the essence of loss between two people in three sentences. In the end, isn’t it that love between two people that makes life unique and special? I have had the honor of representing senior citizens over the years. I can vividly remember numerous defense counsel saying to me (off the record), “Hey, the guy only had a little time left anyway. What is this case really worth?” When you encounter that response, be sure and remember the story about Clara and Joseph Gantt. Never shy away from the opportunity to represent a member of the greatest generation. They deserve it and you will cherish the honor and privilege to have made a difference in their lives.
The long goodbye
This past Christmas season, I spent time with my mother- and father-in-law in the small, Midwestern town of Galena, Illinois. When we arrived from Southern California to Chicago’s O’Hare Airport on December 23, the pilot got on the PA system and announced in a somewhat sarcastic voice that it was 7 degrees and that “you are no longer in Los Angeles.” The reason we braved the elements coming from Southern California was to see my mother-in-law who had been diagnosed with an advanced stage of Alzheimer’s and was now in a secured senior home. Her husband, of some 57 years, had tried his best to take care of her but finally had to check her into a secured facility after she started wandering out of the house. My wife and I, along with our two kids, got to witness firsthand the difference a loving spouse makes in a person’s life. This is true, even when the spouse no longer really knows for sure who the other one is. We were able to attend church with her on
Christmas Eve. Even though it was obvious she could not remember most of the Christmas songs that she had sung her whole life, she appeared to enjoy every moment of the evening.
What really is important
As we visited the senior home on our last day, I looked over at my daughter who was sitting next to her grandmother on the couch, where she observed the numerous people in wheelchairs with various levels of dementia and other old-age health issues. I saw her starting to cry and generally start to lose it. I didn’t have to ask her if she was o.k., because I knew she wasn’t. We left a short time later and no one really said anything in the car. Finally, she blurted out and said, “Is that it? We spend our whole life struggling and working and trying to do the best we can so that we can end up in a senior home and sit around and wait to die?” I tried to give her a rational, comforting response like, “Well, she has friends there and they have a social interaction with each other,” but think about it – what is it that makes our lives worth living? It isn’t money or material things. In the end, it is the friendships and relationships we form each day and renew every day over time. Our profession is unique because it is about helping people find justice and accountability for the loss that they have suffered in their lives. But, don’t forget about the friendships that we make along the way with our clients, the opposing lawyers, the witnesses, the judges, the court staff and all the people who are part of this profession that we call the civil justice system. Don’t forget to reach out and enjoy each day of the journey because it won’t last forever. My advice: Make an impact on someone’s life while you are here working for justice every day.
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