- Advocate Magazine

Transcription

- Advocate Magazine

Journal of Consumer Attorneys Associations for Southern California
Powerful evidence:
Roll the videotape at depositions
Journal of Consumer Attorneys
Association for Southern California
March 2009 issue
Reproduction in whole or
in part without express
written permission is prohibited.
Copyright 2009 by
Neubauer & Associates, Inc.
Evidence
Getting the good stuff in and
keeping the bad out
Monroy: New help in overturning
erroneous rulings on evidence
Victory through the verdict form:
Tips from two leading advocates
hidden assets
punitive damages
Uncovering
hidden assets
for punitive
damages
Are you still wasting money ordering
paper documents?
Beating the most common defenses
in medical-negligence cases
MARCH 2009
THERE’S THE SHORT LIST WHEN CONSIDERING
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A JOINT VENTURE OR REFERRAL RELATIONSHIP.
THEN,THERE’S THE TOP OF THE SHORT LIST:
GREENE BROILLET & WHEELER.
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• Long-time member of Consumer Attorneys
Herbert L. Michel, Jr.
Attorney at Law*
Association of Los Angeles
•Member of Million Dollar Advocates Forum
•35+ years of trial practice
•25+ years of practice in Beverly Hills
•Offices located in prestigious Community
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*Licensed in Nevada, California, Colorado and Texas
©2008 Creative Intelligence, Inc./LA-NY
400 South Fourth Street
Suite 290
Las Vegas, Nevada 89101
Named #1 in California in Personal
Injury Litigation by Best Lawyers in the 2008
Edition of Best Lawyers in America
Named repeatedly as Top 10 Super Lawyers,
Top 100 Los Angeles County, and
Top 50 Women Super Lawyers
by Southern California Super Lawyers Magazine
Named and profiled as one of the
“Top Plaintiff’s Law Firms in America”
by the National Law Journal
Named repeatedly to the“100 Most
Influential Attorneys in California List”
and“Top Women Litigators List”
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Named among “California’s Most
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Khorrami Pollard & Abir LLP
Generous Referral Fees
written confirmation, per State Bar rules.
Khorrami Pollard & Abir LLP
is proud to announce the addition of
three new associate attorneys
Over 50 years of combined experience representing injured plaintiffs.
We prosecute an average of a dozen local trials every year.
Many have resulted in six and seven figure verdicts.
Maryam Danishwar
A graduate of Loyola Law School, Maryam Danishwar served as a law clerk for KP&A and
previously worked with Neighborhood Legal Services handling family and landlord tenant law.
She is a member of CAALA, the American Bar Association, Phi Alpha Delta Law Fraternity, and
the LACBA’s Domestic Violence Project.
Michael Forman
A graduate of Pepperdine University School of Law, Michael Forman is a former law clerk for KP&A
and Sherman & Salkow. Michael completed a course of study in Alternative Dispute Resolution,
receiving a certificate from the Straus Institute for Dispute Resolution. He is a member of CAALA,
California Employment Lawyers, Los Angeles County Bar Association and Beverly Hills Bar Association.
Roxanna Tabatabaeepour
A graduate of American University Washington College of Law, Roxanna Tabatabaeepour was previously
a law clerk for KP&A and the Orange County District Attorney’s Office. She is a member of CAALA and
previously taught underprivileged teens Constitutional Law through the Marshall Brennan Constitutional
Literacy Project in Washington, DC.
JAMES R. TRAUT & ERIC V. TRAUT
James received the Orange County Trial Lawyers Association Trial Lawyer of the Year Award and the next year
Eric was honored with the same award. Both are annually designated “Super Lawyers” by a Los Angeles magazine poll.
Both AV-rated, James and Eric are members of The National Board of Trial Advocates, Consumer Attorneys Association
of California, Consumer Attorneys Association of L.A. and the Association of Trial Lawyers of America.
James is a past Board Member and Eric is a past President of Orange County Trial Lawyers Association.
Khorrami Pollard & Abir LLP, one of the largest plaintiff-only firms in California, represents
individuals in a variety of cases including pharmaceuticals, product liability, natural
disasters, toxic torts, labor and employment matters.
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MARCH 2009
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PARTNERSHIPS AND ACCREDITATIONS
Contents
Volume 36, Number 3, MARCH 2009
Editor-in-Chief
Jeffrey Ehrlich
Associate Editors
Joseph Barrett, Mary Bennett, Christa Haggai, Joan Kessler,
James Kristy, Lawrence Lallande, Graham LippSmith,
Beverly Pine, Norman Pine, Linda Rice
Editors-in-Chief Emeriti
Kevin Meenan, William Daniels, Steven Stevens, Christine
Spagnoli, Thomas Stolpman
Managing Editor
Publisher
Cindy Cantu
Richard Neubauer
[email protected]
[email protected]
Copy Editor
Art Director
Eileen Goss
David Knopf
Consumer Attorneys Association of Los Angeles
Treasurer
President
Lisa Maki
Randy McMurray
Secretary
President-Elect
Geoffrey Wells
Garo Mardirossian
Immediate Past President
First Vice President
Amy Fisch Solomon
Philip Michels
Executive Director
Second Vice President
Stuart Zanville
Michael Alder
Board of Governors
Mike Arias, Michael Armitage, Joseph Barrett, Todd Bloomfield,
John Blumberg, Donn Christensen, Arlan Cohen, Scott Corwin,
Carl Douglas, Ricardo Echeverria, Jeffrey Ehrlich, Mayra Fornos,
Maryann Gallagher, Victor George, Steven Goldberg, Christa
Haggai-Ramey, Genie Harrison, Steven Heimberg, Elizabeth
Hernandez, David Hoffman, Arash Homampour, Neville Johnson,
James Kristy, Lawrence Lallande, Gerald MacRae, Scott Marks,
Shawn McCann, Jill McDonell, Kevin Meenan, Gretchen Nelson,
Elaine Mandel Peters, Thomas Peters, Linda Fermoyle Rice,
David Ring, David Rosen, Jeff Rudman, Adam Shea, Douglas
Silverstein, Steven Stevens, Jeff Westerman, Ronnivashti
Whitehead, David Wood, Gregory Yates, Daniel Zohar
Orange County Trial Lawyers Association
President
Secretary
Alan C. Brown
Terry K. Davis
President-Elect
Treasurer
Anne Andrews
Casey R. Johnson
First Vice President
Parliamentarian
Yoshiaki C. Kubota
Ted B. Wacker
Second Vice President
Immediate Past President
Douglas W. Schroeder
Keith P. More
Third Vice President
Executive Director
Scott B. Cooper
Janet Thornton
Board of Directors
Melinda S. Bell, David L. Belz, H. Shaina Colover, Cynthia A.
Craig, Katrina Anne Foley, Robert B. Gibson, Geoffrey Steven
Gray, Vincent D. Howard, Kevin G. Liebeck, B. James Pantone,
Solange E. Ritchie, Jeffrey S. Sheldon, Adina T. Stern, Timothy
J. Swift, Kimberly A. Valentine, Dieter Zacher
Periodicals postage paid at Los Angeles, California.
Copyright © 2009 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
features:
16
Evidence: In with the good; out with the bad
22
Evidence of a defendant’s financial condition in the
punitive-damages phase of trial
Getting your best evidence admitted and keeping unsavory evidence out can
present a challenge. Pairing the necessary conventional discovery methods
with innovative means can help drive home your best evidence and keep out
the bad stuff. Here are some tried and proven tips.
Molly K. O’Brien
The author explains the various methods and tactics a plaintiff’s attorney may
use to uncover assets and discover a defendant’s true financial condition for
the purpose of seeking punitive damages.
William M. Karns
32
When discretion goes too far: Monroy v. City of Los
Angeles – reversal of a court’s erroneous evidentiary
rulings
Appellate courts seldom reverse trial courts based solely on evidentiary rulings.
Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, does just that,
finding that a trial judge made three distinct evidentiary rulings that required
reversal. There is much to be learned in the Monroy decision about how to
deal with erroneous trial court rulings on evidence.
Jeffrey Isaac Ehrlich
44
Using jury instructions and verdict forms to guide
jurors in the right direction
This article discusses the importance of jury instructions and the verdict form,
highlighting the significant impact these items have in a personal injury trial.
The author presents a review of current requirements for proper submission of
jury instructions.
Todd J. Bloomfield
79
Victory through the verdict form
Send address changes to ADVOCATE
c/o Neubauer & Associates, Inc.
P.O. Box 2239
Oceanside, CA 92051
66
Structured settlements: Protection during dangerous
economic times
Despite the current financial woes, the structured settlement has maintained
its safety, stability and reliability. The author/broker reviews why structured
settlement funds are secure and compares them to other investments.
Bryan Milner
“Whether your case is
about a train, plane or
bus - in EP we trust!”
departments:
10
About this Issue
Evidence
James Kristy
12
Save money on legal, financial and
business services
From the President
of CAALA
The change has come
2009 CAALA President
“EP’s talented staff
“
creates graphics to
capture the minds of
the jurors.”
Liz Hagan
A summary of recent cases
From the President
of OCTLA
A New Year
Alan C. Brown
68
RANDY MCMURRAY
The Cochran Firm
72 Appellate Reports
Randy McMurray
14
the Membership
70 From
Manager of CAALA
From the Executive
Director of CAALA
Lilly Ledbetter’s legacy: Clear proof
where President Obama stands on
consumer issues
Jeffrey I. Ehrlich
82 Index of Advertisers
83 Calendar of Events
Practical
84 The
Practitioner
Are you wasting money on ordering
paper documents?
Bill Daniels
GARO MARDIROSSIAN
Mardirossian & Associates
2009 CAALA President - Elect
“The video and trial
“
graphics were, as
usual, top notch and
turned the tide for us.”
PHIL MICHELS
Michels & Watkins
2009 CAALA Vice President
On the cover: Main image: Cash In-between Mattresses | Jose Luis Pelaez | www.gettyimages.com
Secondary image: Cameraman silhouette and camera | Yuriy Ponomarev | www.shutterstock.com
Why you lose medical-negligence liability cases
For every 100 medical negligence liability cases filed nationally, only one
results in a victim’s verdict. Six result in a defense verdict. Why? As a healthcare victim’s lawyer, you lose because you fail to overcome common defenses.
The author offers specific, practical tips on overcoming these defenses.
Lewis L. Laska
Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294
e-mail: [email protected] Rate card available online at www.theadvocatemagazine.com
POSTMASTER:
Let’s roll the videotape
The effective use of videotaped depositions at trial can dramatically change
your case. Find out the practical and procedural considerations needed to
master this powerful evidentiary tool.
Daniel Zohar
Stuart Zanville
Attention to a verdict form can save you aggravation and prevent the
unraveling of your case.
Bill Veen and Corey Friedman
50
57
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: [email protected]. Please check the website for complete editorial requirements.
Sanford M. Gage, Esq.
“EnGage Mediation”
(310) 273-0904 • Fax (310) 282-9964
engagemediation.com
[email protected]
10284 Century Woods Drive • Los Angeles, CA 90067
Reprint permission: Contact Managing Editor Cindy Cantu: [email protected]
6 — The Advocate Magazine
MARCH 2009
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Personal Injury
Evidence
Wrongful Death
This issue is all about optimizing the
impact of your evidence on a jury. This
issue will not be an exegesis of the
Evidence Code. As important as a thorough understanding of the Code is to
trial success, the following articles touch
on the art of gathering and presenting
evidence to best effect.
In Let’s roll the videotape! author Dan
Zohar guides us in the use of videotaped
depositions. In his own practice, Dan
videotapes most depositions. He has
mastered their use at trial, and shares his
methods – both technical and procedural. The focus of the article is how to use
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deposition videos to present your evidence in a way that grips the jury. Let’s
roll the videotape also guides us in the
practicalities of video recording and Dan
provides a roadmap to navigate the procedures of designating video depositions
to be played at trial.
Molly O’Brien’s article, In with the
good, out with the bad, reveals how creativity in gathering and presenting evidence
can enhance the impact of your case on a
jury. Molly discusses the importance of
requests for admissions and how to use
admissions to impeach witnesses and narrow issues at trial. She also reveals strategies for forcing reluctant defendants to
divulge the information to which you are
entitled in discovery. Molly notes the
importance of researching before trial
whether witnesses – friendly or hostile –
have posted anything about themselves
on Internet social networking sites. She
offers strategies for motions in limine,
and concludes with outside-the-box tips
that will help you uncover powerful evidence in your case.
Next, Bill Karns shows how to obtain
and use Evidence of a defendant’s financial
condition in the punitive-damages’ phase of
trial. You have properly pled punitive
damages and are finally about to try your
case. Looking ahead, what will you need
in the happy event that you receive a verdict that includes a finding of the defendant’s “malice, fraud, or oppression”?
Bill shows you how to plan for the introduction of evidence of the defendant’s
financial condition during the punitive
phase of trial. He reviews the law governing discovery of this information and its
use at trial. Finally, the article offers strategies for obtaining crucial evidence of
defendant’s wealth, which will empower
your jury to award an amount commensurate with the defendant’s financial clout.
The end-game: You and your opponent are about to deliver closing argument. In his article, Use jury instructions
and verdict forms to guide the jurors, Todd
Bloomfield urges us to familiarize the
jury with the law they are about to apply
to the evidence. Todd’s article also recommends jury instructions as a framework for drafting the complaint and
keeping you focused on proving the legal
elements of your claims. He reviews the
procedural requirements of submitting
plaintiff ’s jury instructions, including
special instructions. And Todd shares tips
for drafting verdict forms that subtly
focus the jury on the many categories of
damages your client may have suffered.
Following up Todd on jury instructions is prominent San Francisco attorney
William Veen. In Victory through the verdict
form, Bill shows us how paying attention
to the verdict form from the very beginning of the trial can save you aggravation
and prevent the unraveling of your case.
And if you follow all these evidence
suggestions and the judge still makes an
evidentiary ruling that guts your case,
what are your chances on appeal? Our
editor-in-chief, appellate attorney Jeffrey
Ehrlich, says you have more hope for a
reversal today than you did before the
ruling in Monroy vs. City of Los Angeles, a
case Jeff says every trial lawyer needs to
know.
A little off topic but none-the-less
valuable are the insights of Tennessee
medical malpractice specialist Lewis
Laska, who offers his take on why so
many medical negligence cases don=t
have favorable outcomes for the plaintiff.
In addition to teaching law, Laska is the
publisher of the oldest national newsletter on medical malpractice.
Finally, if you wonder how secure
your clients= structured settlements are in
these turbulent financial times, broker
Bryan Milner looks at how structured settlements compare to other investments.
I thank our authors for devoting
time to sharing their wisdom and experience. I hope their ideas aid you in the
fight for justice for your clients and I
wish you all the best success.
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From the
President
Randy McMurray
The change has come
At the Governmental Relations
Committee meeting, Lea-Ann Tratten,
the political director for CAOC, gave us
the lowdown on what was happening in
Sacramento and how CAALA and its
individual members can help protect our
civil justice system and the right to trial
by jury. The upcoming meeting for the
Governmental Relations Committee
dates and times are available at caala.org.
On April 28 we will have our Lobby
Day in Sacramento. This is the time
when we show up in force to educate our
state legislators on the issues that are
important to our members and their
clients. The term limits of our state legislators continually bring in new lawmakers
from various backgrounds who may not
know the importance of what we do, and
how they can help us better serve their
constituents and our clients. It is imperative that we have these face to face discussions because you can be sure the
medical, insurance and pharmaceutical
lobbyists and others with deep pockets
will be pressing their adverse positions.
Everyone is welcome and encouraged to
attend. Please contact Mark Wirth for
details and scheduling.
Whether or not you attended the
installation dinner dance, you can enjoy
the marvelous event with the exquisite
photography done by Executive
Presentations at the CAALA Web site
event photos. If you don’t recognize me,
I am the black guy in the white coat
dancing with Sheila E, singing with
Jeffrey Osborne and listening with a big
smile as Phillip Baley sings those Earth,
Wind and Fire Songs.
The Media Education Seminar at the
Steve Allen Theater (Los Angeles Press
Club) was a success. The handful of
speakers was excellent, and there were
print media representatives from all over
California and across the country.
Unfortunately, I was unable to make it
to the last CAALA member mixer, in
Manhattan Beach. I am told it was
extremely well attended, with many staying
long after the scheduled 8:00 p.m. ending
time. I will see you at the next one.
From the reviews I have heard, the
“inaugural party” in Beverly Hills on
January 17 was a success. Other parties
in Washington D.C. held over the same
weekend and on January 20 were also
successful.
I would like to thank all of the
judges, senators, assembly members and
all the local law and policy makers who
came to the party, a/k/a the installation
dinner dance, for their support in making this event one I will remember for
my lifetime.
My plan for increasing the participation of our members of color seems to be
having an immediate effect. I was
approached at the installation dinner
dance by several of those who I had met
in Las Vegas earlier last year. They indicated that it was their first CAALA event
and they would be attending many more.
I also met with Mike Payne and Milord
Keshishian among others at the
Meeting on January 27, who had accepted my invitation to get more involved in
the organization.
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MARCH 2009
From the
President
An Important Message from
Political Action Committee Chair
Scott Corwin
Alan C. Brown
Orange County Trial Lawyers Association
The ability of consumer attorneys to represent their clients is greatly impacted
by the actions of the California Legislature.
One good bill can correct injustice; one bad bill can create it.
A New Year
the trial attorney in today’s society. He
reminded us that we are the guardians of
our clients’ right to the judicial system,
and we all must “Get Involved” so our
clients will continue to have access to due
process in society.
The evening was further made special
as OCTLA honored Judge J. James
DiCesare as OCTLA’s Judge of the Year.
With Judge DiCesare’s family and friends
in attendance, we all shared in recognizing
such a wonderful member of the bench.
On January 29th, OCTLA was fortunate to have CAOC’s Christine Spagnoli
leading the panel for our annual “What’s
New in Tort & Trial?” seminar. Our
attendance exceeded 100 members, and
the audience remained captivated in a
three-hour presentation providing an
enlightening summary of many important cases decided in the past year.
Our February program, “Pearls of
Wisdom from the Bench,” included the
following distinguished panel: Judge
Charles Margines, Judge Linda Marks,
Judge Franz Miller, Judge Peter Polos,
Judge Josephine Tucker and Judge Gail
Andler, who shared a variety of timely
topics to help us better represent our
clients in trial.
Our upcoming March 26th program
will provide the attendees with valuable
tips on handling appeals, including
preparing appellate briefs and oral argument with an emphasis on how to be
more effective and persuasive in presenting your case to the Court of Appeal.
For more information on this program and our upcoming events and seminars, visit our Web site at www.OCTLA.org
or call 949-916-9577.
On January 10, 2009, at the Balboa
Bay Club, we celebrated OCTLA’s
Installation of Officers and Board of
Directors. We said thank you to our outgoing president, Keith More, and welcomed our new officers and members of
the Board of Directors.
The evening began with Presidentelect Anne Andrews providing a warm
welcome to the president of CAOC,
Christine Spagnoli. Ms. Spagnoli provided insight into the partnership that
CAOC has formed with the local trial
lawyers’ associations throughout the State
and provided many compliments to how
OCTLA has grown and continues to grow.
Our keynote speaker was the
Founding Dean of the University of
California, at Irvine, School of Law,
Erwin Chemerinsky. The Dean gave a
motivational talk on the importance of
Every year the legislature considers hundreds of bills that can close the court
house doors to consumers. We must have friends in the legislature to protect
the public’s right to justice.
The big corporate forces that aim to reduce the public’s access to the civil
justice system are always hard at work to elect “tort reform” candidates every
election year. And when they can’t get their way with our elected representatives,
they threaten to place harmful initiative measures on the ballot.
Standing up for us in this fight is the Political Action Committee Fund of the
Consumer Attorneys Association of Los Angeles. The CAALA PAC Fund, in
cooperation with Consumer Attorneys of California, has a record of successfully
supporting candidates that fight for the civil justice system in the state capitol.
If we are going to preserve the civil justice system, we need your help in this
important fight. Your financial support of the CAALA Political Action
Committee Fund goes a long way to defeat the “tort reform” interests. Our
PAC fund is the perfect way for hundreds of plaintiff attorneys to join
together to fight for the rights of our clients.
It is easy to support the Political Action Fund by making an on-line contribution
via the CAALA web site. To make your contribution, simply go to www.caala.org
and click on Contribute to the Political Action Fund under Featured at caala.org.
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Molly K. O'Brien
Evidence: In with the good; out with the bad
“I believe that the extraordinary should
be pursued. Extraordinary claims require
extraordinary evidence.”
– Carl Sagan
It’s a common saying that our cases
live or die by the evidence we present.
The concept is easy to grasp, but at times
it can be much harder for a jury to grasp
your key pieces of evidence. Knowing the
Evidence Code and your local rules is
unquestionably important, but sometimes
stepping away from the conventional
means can make your evidence shine.
While sticking with tried and true discovery methods, learn to juggle those with
innovative and creative ways to bring in
your best evidence – and keep out the
bad.
Pre-trial considerations
Ah, written discovery. The necessary
paper-evil that, at times, seems neverending. When propounding written discovery, turn this foe into your friend. Use
it to help you effectively – and efficiently
– narrow the focus of your case and identify your crucial fact issues. Two important written discovery tools are Requests
for Admissions and Requests for
Production. Though the California Code
of Civil Procedure has many detailed subsections, below are a couple of the sections that are worth brushing up on.
•Requests for admissions: Code of Civil
Procedure section 2033.010, et seq.
Requests for Admissions (RFAs)
should be propounded early and should
be served along with Form
Interrogatories (see Judicial Council
forms at http://www.courtinfo.ca.gov/
forms/), especially No. 17.1. RFAs are a
great tool for determining the true facts
in dispute, and also help ensure that all
appropriate parties have been brought
into your action. RFAs are also a great
vehicle for establishing a basis for
impeachment down the road. Perhaps
MARCH 2009
more importantly, a response to admissions can present opportunities to move
for summary judgment. Remember that
the number of requests allowed is substantially different for limited versus
unlimited cases, but you may submit a
supporting declaration to allow additional RFAs. (Code Civ. Proc., §§ 91, 94, 95 &
2033.040.) Tip: Keep your RFAs short
and sweet; a straightforward request may
avoid a denial or objection. Of course,
when you receive responses to RFAs, be
on the lookout for impermissible objections referenced in Code of Civil
Procedure sections 2033.230 and
2033.290.
The beauty of RFAs: An admission is
conclusively established against the
responding party and any later-acquired
evidence contrary to the admission may
not be admissible without leave of court
obtained through a noticed motion.
(Code Civ. Proc., §§ 2033.410 &
2033.300.) Follow-up on admissions during a videotaped deposition: when a
helpful admission is brought to the jury’s
eyes and ears, the result can be quite
effective evidence. Consider the impact
you could make on your jury by allowing
them to observe the witness’s facial
expressions and body language upon
making that admission during deposition, as opposed to hearing the attorney
read it from the paper itself (or the deposition transcript).
•Requests for production – Code of
Civil Procedure section 2031.010, et
seq.
Though mainly used to demand production of documents and other tangible
evidence, demands for inspection also
apply to inspection of land or property.
As with RFAs, Requests for Production
(RFPs) should also be propounded early
when possible. As with RFAs, the number
of RFPs allowed is different for limited
versus unlimited cases, so be ready to file
a motion for additional requests as neces-
sary (note that for unlimited cases, you
may propound as many demands as
needed). Keep in mind that a failure to
serve a timely response or any response
will result in a waiver of any objections.
(Code Civ. Proc., § 2031.300.)
•Objections and withholdings
The responding party must “identify
with particularity” the objections asserted
to an item. If the responding party
objects based upon privilege, the particular privilege invoked must be clearly stated. (Code Civ. Proc., § 2031.240, subd.
(b)(2).) Typically, the responding party
should submit a privilege log setting
forth a detailed description of the document, including numerical identifiers
(“Bates” numbers where possible), subject
of the document, author, recipients, and
date. (Wells Fargo Bank, N.A. v. Superior
Court (2000) 22 Cal.4th 201, 205 [91
Cal.Rptr.2d 716].) Although privilege
logs are no longer required, a party
deserving one should push for one. Be
on the lookout for meritless privilege
assertions. For example, it may be a far
stretch for documents to be “attorneyclient privileged” when the documents
described are merely marketing documents prepared by a third party at the
responding party’s instruction.
Continually press the privilege log issue
and, if dealing with work-product assertions, avail yourself of in-camera inspections. (Evid. Code, § 915.)
For both RFAs and RFPs, generally
be on the lookout for the responding
party to file a motion for additional time
or motion for protective order (Code Civ.
Proc., § 2033.080 for RFAs; Code Civ.
Proc., § 2031.060 for RFPs); be prepared
to combat them effectively. (See Code
Civ. Proc., §§ 2033.080 and 2031.060.)
Note: Monetary sanctions in this instance
are virtually mandatory! The court “shall”
impose monetary sanctions against any
party, person or attorney who unsuccess-
See Evidence, Page 18
MARCH 2009
Evidence — continued from Page 16
fully makes or opposes a motion for protective order, absent substantial justification or if sanctions would be unjust.
(Code Civ. Proc., §§ 2033.080, subd. (d)
& 2031.060, subd. (d).)
When the responding party fails to
answer discovery, especially after the
court orders supplemental responses, be
ready to move to compel. (See Code Civ.
Proc., §§ 2031.310 & 2033.290.) Always
request sanctions under Code of Civil
Procedure section 2023.010 et seq. when
a court order has been violated.
Finally, for Microsoft Outlook users,
take advantage of “Outlook entries” to
remind yourself when responses,
motions, oppositions and replies are due;
following up diligently on these deadlines will not only avoid missed opportunities but will also send your opponent a
message that you’re not messing around
with the evidence you’ll use to win your
case.
•Deposition considerations
In this age of technology and increasing computer communication, always ask
your client or witness if she belongs to
any of the “social networking Web sites”
such as Facebook, MySpace, Twitter, Plaxo,
Bebo, Reunion, Spoke, WAYN, YouTube,
blogger . . . the list goes on! While many
of these Web sites are harmless and perhaps useful to some, you never know what
your client or witness has posted online.
Let’s face it, some people just don’t think
before posting something that a simple
Google search could reveal. A good example of this is a gentleman who posted a
YouTube video of his award-winning athletic competition while simultaneously
claiming (in the same video) that a pharmaceutical drug had caused him severe
congestive heart failure. Although wellintended, when defense counsel shows
that video to the jury, suddenly it
becomes great evidence against him.
Better to know ahead of time rather than
have opposing counsel spring something
like this on your witness. Consider adding
this as a question on your initial client
questionnaire, and then ask them again
before deposition. Remember, it’s just as
important to keep bad evidence out as it
is to get the good in.
MARCH 2009
This issue applies to both parties’
witnesses. Do a thorough Internet search
for all witnesses’ names, perhaps narrowing it down such as, “Jim Smith Facebook
Santa Monica” and go from there. You
should Google their e-mail addresses,
spouses’ names and maiden names. If
necessary, hire an investigator to do a
background check on your witness. You
may find evidence that wouldn’t be provided or uncovered during written discovery. This evidence could not only
make a big difference in your case at
trial, but it also may promote early settlement.
When suing a business entity, consider noticing the deposition of the “Person
Most Qualified” (PMQ), also known as
“Person Most Knowledgeable.” (See Code
Civ. Proc., §§ 2025.010 & 2025.230.) The
notice should be directed to the entity
itself, not an individual. Your notice must
“describe with reasonable particularity
the matters on which examination is
requested.” (Code Civ. Proc., §
2025.0230.) The corporation has a duty
to produce the person most qualified to
testify on its behalf. Further, the designated person has a duty to become educated
regarding the matters at hand. Because
the entity must produce a person to testify regarding “any information known or
reasonably available to the deponent,”
the PMK deponent must therefore be
able to testify about the knowledge of
corporate employees. (Maldonado v.
Superior Court (2002) 94 Cal.App.4th
1390, 1398 [115 Cal.Rptr.2d 137].) Pair
your PMK notice with an RFP and you
have an extremely effective method of
discovery to help you identify witnesses
and evidence.
•Motions in limine
Though not expressly authorized by
statute, motions in limine (MILs) are
commonly entertained within the trial
court’s inherent powers. (Peat, Marwick,
Mitchell & Co. v. Superior Court (1988) 200
Cal.App.3d 272, 288 [245 Cal.Rptr.
873].) Per Evidence Code section 402,
subdivision (b), the court has power to
determine the admissibility of evidence
outside the presence or hearing of the
jury. Many, if not most, MILs are cen-
tered around Evidence Code section 352
– unduly prejudicial evidence. Evidence
Code section 352 gives the trial court
broad discretion to exclude evidence in
which “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.”
While the court has broad discretion
here, it is not absolute. The court must
exercise reasonable discretion in accord
with the facts before it. (People v Rodrigues
(1994) 8 Cal.4th 1060, 1124 [36
Cal.Rptr.2d 235]; Brainard v Cotner
(1976) 59 Cal.App.3d 790, 796 [130
Cal.Rptr.915].) A balancing test is
required, considering the relationship
between the evidence, the relevant inferences drawn therefrom, whether the evidence is relevant to the main issue or a
collateral issue, and whether the evidence
is necessary for the proponent’s case.
(Kessler v Gray (1978) 77 Cal.App.3d 284,
291 [143 Cal.Rptr. 496].)
MILs can be an invaluable tool in
both keeping prejudicial or otherwise
unsavory evidence out as well as learning
about the other side’s evidentiary concerns. Of course, this means that by
bringing your own MILs, your opponent
now has insight into your damaging evidence.
As a more practical matter, MILs can
assist you in narrowing your focus of
issues for the judge, prepare you for witness testimony and assist in framing your
opening statement. Additionally, using
MILs to take care of certain pieces of evidence in advance of trial can minimize
disruptions (i.e., sidebars) at trial, thus
keeping a flow for the jury. Also consider
using MILs to obtain an advance ruling
on the admissibility of evidence prior to
trial for such things as charts, models, recreations or videos. (See Wegner,
Fairbank, et al., Cal. Practice Guide (The
Rutter Group 2008): Civil Trials &
Evidence § 4:234.)
Finally, if considering MILs, familiarize yourself with Kelly v New West Fed.
Savings (1996) 49 Cal.App.4th 659 [56
See Evidence, Page 20
Evidence — continued from Page 18
Cal.Rptr.2d 803]. Kelly is an important
case for two reasons: (1) The Kelly opinion provides several situations where
MILs should not be granted; and (2) it
approves the longstanding use of MILs.
(Id. at pp. 669-70.)
Trial considerations
•Opening statements
Through your opening statement,
your jury has its first exposure to the evidence you will show them.
“Eighty to ninety percent of jurors
come to a decision during or immediately after the opening statement.” (Haskins
and Gardner (Spring 1990) 13 Trial
Diplomacy J. 51.). Give your jurors a
compelling reason to listen to you and
soak in the evidence that you will show
them. Make your first 20 seconds worth
every penny spent on gathering, preparing and presenting your evidence.
•Methods of presenting evidence
“Wherever possible, offer graphics
into evidence.” (Wegner, Fairbank, et al.,
Cal. Practice Guide: Civil Trials &
Evidence (The Rutter Group 2008) §
6:189.) Plan well in advance the evidence you will demonstrate in graphics.
Consider placing inconsistent testimony
into graphic form. This could be useful
with admissions (as described above), as
well as prior expert testimony. Learn
how your judge feels about visual aids,
charts, and enlarged photographs. Use
of visual aids is discretionary with the
court, not a matter of right. (People v.
Green (1956) 47 Cal.2d 209, 215 [302
P.2d 307].)
Work with your opposing counsel in
an effort to stipulate to graphics or con-
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MARCH 2009
sider raising this issue with the court well
in advance of trial. Be ready to provide
foundation for your evidence and pay
attention to the specific parts of the
graphics that are of concern to opposing
counsel. Learn from opposing counsel’s
objections and revise your graphics
accordingly to avoid the objection and
get the evidence in. Remember that once
your graphic is admitted, it goes into the
jury room – possibly a great advantage
for your case.
Video presentations, whether videotaped depositions, crash test videos or
“day in the life” videos, will break up the
oftentimes monotonous testimony evidence. Use visual aids to retain the jury’s
attention. “A picture is worth a thousand
words; a good video is worth several million.” (Mark P. Robinson, Jr.)
•Focus groups and jury consultants
Hiring focus groups or jury consultants to analyze the demeanor of your witnesses is well worth the investment. A
focus group can not only facilitate in
deciphering the evidence to which your
jury best responds, but can also assist
with your witnesses in their verbal and
physical effectiveness on the stand. If a
focus group is out of the budget, spend
some valuable time researching this yourself, and learn effective ways to prepare
your witness beyond the verbal response.
Recognize who is on your jury and how
your witnesses’ demeanors, attitudes,
body language and facial expressions
play a large role in how they are perceived. After all, your witnesses are often
your most important evidentiary vehicles.
•Be prepared for anything
When it comes to evidence, expect
the unexpected. Be willing to take action
to continue improving the evidence in
your case. For example, quick action and
follow-through led to better evidence and
victory in the following two cases.
• The surfer
During voir dire in an automotivedefect trial, one of the potential jurors
stated that he was an avid surfer and frequently surfed in the area where the
automobiles were being held over before
passing U.S. inspection. The Surfer disclosed that he had often observed the
cars being delivered to the location and
that he had seen vandals removing parts
from the automobiles in the unattended
lot. After the juror was excused, the
plaintiff attorney’s staff promptly handed
a subpoena to the Surfer, who became a
key witness to winning the case.
•The deer hunter
In another automotive-defect case
involving a woman who was brain damaged after her vehicle was rear-ended,
the plaintiff ’s attorney was investigating
why certain sheet-metal welds were faulty,
allowing excessive intrusion into the passenger compartment. The plaintiff ’s
attorney attended various automotive
union workers’ meetings and then posted
signs in the locker rooms, inquiring if
anyone had any information about the
welds. Shortly thereafter, a man responded to the posting, stating that he knew
exactly why the welds were faulty: deer
hunting season. He later testified that
many of the skilled workers took vacation
time during deer hunting season, so the
company hired temporary, under-skilled
employees to cover for the absent skilled
employees. The company was well aware
of this “trend.” Unfortunately, the temporary employees weren’t so adept at
welding and, as a result, the cars they
worked on frequently came off the assembly line with numerous incomplete or
failed welds. Through this evidence from
the Deer Hunter, the plaintiff was able to
establish that the welds at issue were
made during deer-hunting season by
under-skilled workers and that the company was aware of the risk. Verdict for
plaintiff.
The moral of the story: Recognize
that your best evidence may not always
come from conventional modes. Think
outside the box and advocate for your
client creatively and effectively to win
your case.
Molly K. O’Brien is an associate with
Robinson, Calcagnie & Robinson, located in
Newport Beach. Robinson, Calcagnie &
Robinson represent plaintiffs injured by automotive defects, defective pharmaceutical products and medical devices, fraudulent business
practices and roadway design.
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Evidence of a defendant’s financial condition
in the punitive-damages phase of trial
Although it may be rare to find yourself in the punitive-damages phase of a
trial, there are some things you must
know to maximize your recovery. First
and foremost, evidence of a defendant’s
financial condition is a prerequisite to
support an award for punitive damages.
The plaintiff has the burden to present
evidence of a defendant’s financial condition to the jury. (Evid. Code, § 500; see
also Adams v. Murakami (1991) 54 Cal.3d
105, 119 [284 Cal.Rptr. 318].) This article addresses the various ways a plaintiff ’s attorney can obtain that evidence,
and the procedural rules relating to the
presentation of it.
Civil Code section 3294, subdivision
(a), paves the way for punitive damages.
That section states, “[i]n an action for the
breach of an obligation not arising from
contract, where it is proven by clear and
convincing evidence that the defendant
has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the
actual damages, may recover damages for
the sake of example and by way of punishing the defendant.” Attorneys tend to
focus discovery on issues that support a
finding of “oppression, fraud, or malice.”
This focus is paramount, since evidence of a defendant’s financial condition
is irrelevant without a finding of “oppression, fraud, or malice.” However, there
are methods to conduct discovery, both
formally and informally, of a defendant’s
financial condition. An effective pretrial
discovery plan of a defendant’s financial
condition will not only give you a jump
start on the discovery of key evidence that
is too often ignored before trial, it could
also result in a favorable settlement.
Discovery of a defendant’s financial
condition by court order
The general rule is that pretrial discovery of a defendant’s financial condition, although relevant in a punitive
damage claim, is prohibited. (Doak v.
Superior Court of Los Angeles County (1968)
257 Cal.App.2d 825, 832-834 [65
Cal.Rptr. 193].) Courts have upheld this
general rule based upon public policy
and the right of privacy arguments. But
this has not always been the case. For a
review of the development of this rule,
and corresponding legislative history, see
Rawnsley v. Superior Court (1986) 183
Cal.App.3d 86 [227 Cal.Rptr. 806]. The
TIM CORCORAN
RAMS
M E D I AT I O N
Fellow, International Academy of Mediators
Fellow, American College of Civil Trial Mediators
Diplomat, California Academy of Distinguished Neutrals
909.798.4554
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5 East Citrus Avenue, Suite 201, Redlands, California 92373
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general rule in no way diminishes the
importance of this evidence. A defendant’s net worth bears on the sting necessary to effectuate the punishment purposes of a punitive damages award. This
remains the law post-State Farm Mutual
Auto Insurance Company v. Campbell (2003)
538 U.S. 408 [123 S.Ct. 1513].
Notwithstanding the general rule,
plaintiffs can still conduct discovery of a
defendant’s financial condition by way of
court order. Civil Code section 3295, subdivision (c), states, “No pretrial discovery
by the plaintiff shall be permitted with
respect to the evidence referred to in
paragraphs (1) and (2) of subdivision (a)
unless the court enters an order permitting such discovery pursuant to this subdivision.” Civil Code section 3295, subdivision (a), paragraphs (1) and (2), refer to
profits gained by wrongful conduct and
the defendant’s financial condition. This
assumes that the plaintiff has properly
pleaded a claim for punitive damages. A
defendant’s financial condition is not at
issue absent a proper punitive damages
claim, save several exceptions, and the
plaintiff has no right to conduct discovery relating to it. (Brown v. Superior Court
(1990) 224 Cal.App.3d 989, 994 [274
Cal.Rptr. 442].)
The procedure to obtain a court
order allowing pretrial discovery of a
defendant’s wealth is relatively simple.
Procedurally, the order must be obtained
by way of noticed motion. Civil Code section 3295, subdivision (c), gives further
guidance, and states, in relevant part,
“Upon motion by the plaintiff supported
by appropriate affidavits and after a
hearing, if the court deems a hearing to
be necessary, the court may at any time
enter an order permitting the discovery
otherwise prohibited by this subdivision
if the court finds, on the basis of the sup-
See Condition, Page 24
MARCH 2009
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Condition — continued from Page 22
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porting and opposing affidavits presented, that the plaintiff has established that
there is a substantial probability that the plaintiff will prevail on the claim pursuant to
Section 3294” (emphasis added).
Essentially, the plaintiff must file a noticed
motion containing declarations that support a finding of “oppression, fraud, or
malice.” Whether a hearing is required is
left to the discretion of the court.
Although the procedural process
may be simple, the plaintiff ’s burden is
not. What amounts to “substantial probability” is not crystal clear, and depends
on the facts of your case, and your
judge. Jabro v. Superior Court (2002) 95
Cal.App.4th 754 [115 Cal.Rptr.2d 843]
provides some further guidance, stating
that a “court must (1) weigh the evidence presented by both sides, and (2)
make a finding that it is very likely the
plaintiff will prevail on his claim for punitive
damages.” (Id. at p. 755 (emphasis
added).)
With terminology like “substantial
probability” and “very likely,” it is obvious the burden for a court order allowing discovery into a defendant’s wealth is
high. A showing that it is probable there is
“oppression, fraud, or malice” is insufficient. To prevail on a claim for punitive
damages at trial, the plaintiff must prove
“oppression, fraud, or malice” by “clear
and convincing evidence.” Some judges
require that burden of proof to entitle
you to discovery of a defendant’s financial condition. The plaintiff must go
above and beyond what would be
required to defeat summary adjudication. In practice, courts are reluctant to
allow this discovery. Even so, with the
right facts, moving for a court order
pursuant to Civil Code section 3295,
subdivision (c), can put enormous pressure upon the defendant to settle.
It should be noted that Civil Code
section 3295, subdivision (c), applies to
arbitrations as well. Plaintiffs must
obtain a court order to conduct discovery with respect to a defendant’s wealth
in arbitration. (Code Civ. Proc., §
1141.19.5.)
If the court finds there is a substantial probability that the plaintiff will pre-
S
ummit
ettlement
ervices
vail on the punitive damages claim and
allows pretrial discovery of a defendant’s
financial condition, it is not a per se
finding of “oppression, fraud, or malice.” Civil Code section 3295, subdivision (c), states that such an order “shall
not be considered to be a determination
on the merits of the claim or any
defense thereto and shall not be given
in evidence or referred to at the trial.”
The plaintiff must still convince the trier
of fact.
If the court allows the discovery of a
defendant’s financial condition, be cautious about sharing the information. The
defendant is presumptively entitled to a
protective order that the disclosure of
the financial documents is limited solely
to the discovering party, its counsel,
counsel’s representative, and solely for
the purposes of the pending lawsuit.
(Richards v. Superior Court (1978) 86
Cal.App.3d 265 [150 Cal.Rptr. 77].)
Civil Code section 3295 confers limited discovery rights of a defendant’s
financial condition when punitive damages are alleged. This is not a plaintiff ’s
only means of discovering a defendant’s
financial condition. Although this article
focuses on the discovery of a defendant’s
financial condition when punitive damages are alleged, such information is discoverable when it is germane to a material issue in the case. Whether punitive
damages are alleged or not is irrelevant.
If the proof of an allegation is dependent upon the defendant’s profits or
wealth then it is discoverable.
Conversion is the classic example. For
further insight on these issues, and other
circumstances in which a defendant’s
financial condition is discoverable absent
a punitive damages claim, see Rawnsley
v. Superior Court, supra, 183 Cal.App.3d
86.
Similarly, evidence of a defendant’s
financial condition is admissible in the
liability phase of trial if the evidence is
relevant to liability or other issues not
relating to the amount of punitive damages. (Notrica v. State Comp. Ins. Fund
(1999) 70 Cal.App.4th 911, 939 [83
Cal.Rptr.2d 89].) In the foregoing cir-
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cumstances, there would be no need to
seek a court order pursuant to Civil Code
section 3295, but expect to file some
motions to compel.
Obtaining the identity of key
documents and witnesses in pretrial
discovery
There may be tactical reasons to not
seek a court order pursuant to Civil Code
section 3295. It may be futile given the
facts of the case, and the reluctance of
judges to grant the motion. If your
motion fails you can expect the defendant at the close of plaintiff ’s case to ask
for a nonsuit or directed verdict on the
issue of punitive damages. The defendant will argue that the plaintiff has not
produced any new evidence that would
allow a jury to find “oppression, fraud or
malice” than what was raised in plaintiff ’s motion. Defendant will argue the
court denied that motion for discovery of
defendant’s financial condition, because
it had not met the requisite burden of
proof then, and it has not met it at trial.
Choosing to make the motion should
be determined on a case by case basis.
No matter the decision, plaintiffs may
still be able to discover the identity of key
witnesses and financial records relating to
the defendant’s financial condition without the need for court order. Civil Code
section 3295, subdivision (c), states, “the
defendant may be required to identify
documents in the defendant’s possession
which are relevant and admissible for
that purpose and the witnesses employed
by or related to the defendant who would
be most competent to testify to those
facts.” This allows plaintiffs to request the
identity of documents and witnesses
relating to profits or the financial condition of the defendant.
Being thrust into the punitive damages phase of trial is stressful. Time is
short, and you are about to enter the
world of accounting. Knowing the identity of documents and the witnesses most
competent to testify as to the defendant’s
profits and financial condition long
before trial streamlines the process.
Request that defendant identify documents relating to its financial condition,
and the witnesses who are most qualified
to testify as to those documents.
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Informal discovery of a defendant’s
financial condition
personal injury
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Gary N. Donovan, Esq.
Google is an excellent starting point
for informal discovery of a defendant.
Defendants, and plaintiffs, are all over
the Internet doing foolish things. They
pose in front of expensive cars on
Facebook. They rent out their condos in
Mammoth on Craigslist. They blog. They
even blog about your lawsuit. If you do
not continuously monitor your defendants on the Internet, start. If you do
not continuously monitor your client on
the Internet, it is imperative you start.
The Internet is an absolute goldmine for
impeachment evidence on a defendant’s
financial condition.
Financial information for public
companies is easily accessible. The
Securities and Exchange Commission
maintains a Web site where electronic
versions of financial reports can be
downloaded (www.sec.gov/edgar.shtml).
SEC filings and corporate balance
sheets can also be obtained through
Yahoo Finance (http://finance.yahoo.com),
Google Finance (http://finance.google.com/
finance and http://google.brand.edgaronline.com).
Virtually all businesses maintain a
Web site. Perhaps chief of the many reasons for a business to maintain a Web
site is to get more business. As a result,
businesses project themselves as being
rich on the Internet. This provides fantastic evidence to impeach the CFO or
accountant who will invariably testify
about the poor financial condition of the
business.
Insurance Code section 900 requires
every insurance company to file with the
state insurance commissioner “statements exhibiting its condition and
affairs” every year. These statements
include the overall viability and assets
of the company. This information is
key in insurance bad-faith cases. The
files can be found at the California
Department of Insurance Web site
(www.insurance.ca.gov). Filings are
updated on March 1 every year.
Plaintiffs can also purchase asset
checks of individuals and businesses.
MARCH 2009
MARCH 2009
These asset checks range in degree of
detail and price. Repeated asset checks
may be useful to demonstrate to the jury
that the defendant is playing fast and
loose with his claim of limited assets. It
may also be useful to establish that the
defendant has fraudulently conveyed
assets in an attempt to frustrate your
efforts to collect a judgment. Asset checks
can be instrumental in understanding the
settlement value of a case. One attorney,
and CAALA member, recently discovered
several large income properties owned by
a seemingly poor defendant overseas that
were not disclosed in deposition.
Needless to say, the value of that case
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Evidence of a defendant’s financial
condition at trial
Typically, a defendant will seek bifurcation of profits and financial-condition
evidence from the liability phase of trial.
Civil Code section 3295, subdivision (d),
states:
The court shall, on application of
any defendant, preclude the admission
of evidence of that defendant’s profits
or financial condition until after the
trier of fact returns a verdict for plaintiff awarding actual damages and finds
that a defendant is guilty of malice,
oppression, or fraud in accordance
with Section 3294. Evidence of profit
and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff
and to be guilty of malice, oppression,
or fraud. Evidence of profit and financial condition shall be presented to the
same trier of fact that found for the
plaintiff and found one or more defendants guilty of malice, oppression, or
fraud.
In practice this is essentially a
motion in limine precluding evidence of
defendant’s financial condition until a
finding of actual injury, and “malice,
oppression, or fraud.”
In the first phase of a bifurcated
trial, the jury will consider liability, causation, actual injury, and whether there is
clear and convincing evidence that would
support a punitive damages award. The
jury cannot consider evidence relating to
the amount of the punitive damages
award. However, if the defendant chooses
not to bifurcate, the plaintiff can go
ahead and present evidence in support of
the amount of a punitive damages award.
If the defendant has minimal assets,
but has insurance, the plaintiff should
request a bifurcation. If the jury hears evidence of limited financial worth during
the compensatory damage phase of the
case, the jury may be reluctant to award
substantial compensatory damages.
Civil Code section 3295, subdivision
(c) does not bar a plaintiff from subpoenaing relevant profits and financial condition evidence for trial. (Civ. Code, §
3295 subd. (c).) The only caveat is the
plaintiff cannot look at the documents
until the condition of Civil Code section
3295, subdivision (d), are met: that a jury
returns a verdict for actual damages and
a finding of “oppression, fraud or malice.” If the jury finds for the plaintiff on
these issues, the plaintiff may examine
the relevant financial information and
introduce the evidence during the bifurcated portion of the trial.
It is important to understand that
plaintiffs have the burden of producing
meaningful evidence of a defendant’s
financial condition to support an award
for punitive damages. (Evid. Code, §
500; see also Adams v. Murakami, supra,
54 Cal.3d 105.) Plaintiffs cannot rely on
the defendant to set forth their financial
condition at trial. The plaintiff must subpoena the necessary witnesses and documents for trial. Plaintiff must also depose
identified witnesses and persons most
qualified to testify on the overall financial condition of the defendant after the
jury finds “malice, fraud, or oppression.”
If an accurate and complete picture of
the defendant’s financial condition is not
presented to the jury by the plaintiff, a
punitive damages award is vulnerable to
reversal on appeal. (See Baxter v. Peterson
(2007) 150 Cal.App.4th 673 [58
Cal.Rptr.3d 686]; and Lara v. Cadag
(1993) 13 Cal.App.4th 1061 [16
Cal.Rptr.2d 811].) Do not rely solely on
net worth, gross income, or gross assets.
There are a number of other items that
reflect on a defendant’s overall financial
condition.
This burden puts the plaintiff in a
relatively precarious position. The plaintiff has the obligation to show the defendant’s cards, but the defendant still controls the deck. If a defendant “hides the
ball” by refusing to produce financial
information, the defendant is presumed
to have waived its right to challenge a
punitive damages award based upon lack
of wealth evidence. (Mike Davidov Co. v.
Issod (2000) 78 Cal.App.4th 597, 608-610
[92 Cal.Rptr.2d 897].) In the situation
where the defendant is “hiding the ball,”
request that the court give CACI Jury
Instruction No. 203, which states, “You
may consider the ability of each party to
provide evidence. If a party provided
weaker evidence when it could have provided stronger evidence, you may distrust
the weaker evidence.” You may request
that the court instruct that the defendant’s evidence should be viewed with distrust. This instruction is based upon
Evidence Code section 412.
What kinds of evidence you want
Lic. # PI 14084
Two words of caution with discovery
of defendant’s wealth: be broad. Make
MARCH 2009
sure discovery is designed to obtain the
defendant’s complete financial condition. Do not shy away from discoverable
items that would show the defendant is
not wealthy. Plaintiffs have the burden
of producing meaningful evidence of a
Defendant’s financial condition to support an award for punitive damages. If
it’s good for your case or bad, it must
be shown to the jury if you want your
award upheld. Again, go beyond net
worth, gross income, and gross assets.
In addition to broad categories, such as,
“All documents relating to defendant’s
assets . . . ,” be sure to also request
credit information, liabilities, tax
returns with all schedules (portions of
tax returns may be privileged), W-2s,
1099s, luxury items, accounts receivable, audits and reviews, general
ledgers, trial balances, balance sheet
reports, income statement records, rent
reports, payable reports, cash disbursement reports, cash receipts reports,
cash flow reports, real property statements, personal property statements,
credit reports, and loan and credit
applications.
Loan and credit applications are terrific sources of information. When a person wants to borrow money, he is more
likely to exaggerate his financial worth in
order to secure a loan. If you examine
the defendant during the punitive damages phase of trial, the defendant will be
hard-pressed to tell the jury that he really
does not have the asset he listed on the
loan application. Is he going to admit he
lied to get the loan? If he makes such an
admission, remind the jury during argument that the defendant has admitted
that he is willing to lie to achieve what
he wants.
Conclusion
Although it may be rare, even lucky,
to be in the punitive damages phase of
trial, that does not mean that you should
not be prepared for it.
Bill Karns is an associate at the law firm
of Cheong, Denove, Rowell and Bennett. He
specializes in litigation of catastrophic injury
cases and business torts.
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About
this Issue
When discretion goes too far: Monroy v. City of Los Angeles – a rare
appellate reversal based on a trial court’s erroneous evidentiary rulings
One of the first questions that potential clients tend to ask me when they are
considering bringing me into a case to
handle the appeal is what my sense is of
the odds that they will prevail. Although
I am loath to admit it and dispel the
mystique of being a certified appellate
specialist, there is a fairly easy way to
answer this question accurately in most
cases: As a general rule, the best way to
predict the outcome of an appeal is to
look at what happened in the trial court.
The rules of appellate review are not
designed to produce reversals; they are
designed to affirm the result below unless
there has been some egregious error. So
if the client lost below, it is likely that the
appeal will be unsuccessful. That’s just
how the system is designed to work.
Evidentiary issues
When the issue that the potential
client wants to raise on appeal is the trial
court’s ruling on evidentiary issues, the
odds of a reversal are usually remote for
several related reasons.
First, evidentiary objections must be
timely made in order to preserve an issue
for an appeal. If no objection is made,
the issue is waived. In addition, the precise ground for the objection must be
stated. It’s not permissible to object on
one basis in the trial court, and then
offer a different basis to support the
objection on appeal – even if the new
ground is well taken. (Evid. Code, § 353;
Mosesian v. Pennwalt Corp. (1987)
191 Cal.App.3d 851, 865 [1236 Cal.Rptr.
778], disapproved on other grounds,
People v. Ault (2004) 33 Cal.4th 1250 [17
Cal.Rptr.3d 302].)
Second, trial courts are generally
accorded considerable discretion in deciding what evidence to admit and what evidence to exclude, and appellate courts are
typically not eager to second-guess these
decisions. And even if the appellate court
concludes that the trial court did err,
MARCH 2009
there can be no reversal unless the appellate court concludes that the error resulted in a miscarriage of justice.
These rules are codified at Section
353 of the California Evidence Code,
which says:
353. Erroneous admission of
evidence; effect
A verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
(a) There appears of record an
objection to or a motion to exclude or
to strike the evidence that was timely
made and so stated as to make clear
the specific ground of the objection or
motion; and
(b) The court which passes upon the
effect of the error or errors is of the
opinion that the admitted evidence
should have been excluded on the
ground stated and that the error or
errors complained of resulted in a miscarriage of justice.
Given the slim odds of winning an
appeal based on a challenge to the trial
court’s evidentiary rulings, the decision
in Monroy v. City of Los Angeles (2008) 164
Cal.App.4th 248 [78 Cal.Rptr.3d 738] is
particularly remarkable. Monroy reversed
a jury verdict in favor of the defendant
City of Los Angeles in a case for injuries
arising out of a police chase based solely
upon the trial judge’s evidentiary rulings.
The rulings by the trial court were surely
harsh, but not necessarily unusual.
Monroy is therefore a case that every trial
lawyer needs to know in order to respond
to the kind of overly restrictive rulings
that can gut an otherwise solid case.
The facts
On September 4, 2004, Saturday of
Labor Day weekend at approximately
10:45 p.m., Yesenia Monroy was driving
her car eastbound on Third Street in Los
Angeles, with her child sitting in a child
safety seat in the back of the car.
LAPD Officer Felipe Jesus Arreola
was driving an LAPD patrol car on routine patrol when he heard a radio call
from a gang unit in the area requesting
backup for a foot pursuit of a man with a
gun. The operator designated the call as
“Code 2” and directed another police
unit to respond. A “Code 2” is an urgent,
but non-emergency, response request
requiring those police vehicles responding to obey the rules of the road. A backup call is a Code 2.
Officer Arreola’s partner, Officer
Garcia, advised that they were “backing,”
i.e., they were responding to a Code 2.
Officer Arreola made a right turn and
headed southbound. It was a very short
distance to the intersection of Boyle
Avenue and First Street. Officer Arreola
turned on his siren and his overhead
emergency lights, passed through the
intersection at Boyle Avenue and First
Street where there was a red light, and
continued southbound on Boyle Avenue
toward Third Street.
Once Officer Arreola passed through
the intersection of Boyle Avenue and
First Street, he turned off the siren. He
did not remember if he also turned off
the overhead lights. He accelerated.
Within moments, his vehicle was almost
at Third Street where he saw Monroy’s
vehicle. Officer Arreola applied the
brakes of the patrol vehicle, but could not
avoid colliding with Monroy.
Before the collision neither Officer
Arreola nor Officer Garcia notified the
dispatcher that either of them had
upgraded the call to a Code 3. A Code 3
exempts emergency vehicles from rules of
the road under certain circumstances. In
his deposition, Officer Arreola testified
that when he received the radio call for
backup, he responded, “Code 2, Code 2
High.” (The “high” designation, which
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MARCH 2009
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designated a greater emergency than a
Code 2, was no longer in use in 2004.)
However, at trial, Officer Arreola testified that he initially responded to the
call as Code 2, but when he turned on
the siren and lights he upgraded the call
in his mind to Code 3.
The posted speed limit in the area
of the collision was 25 miles per hour.
Officer Arreola testified he was traveling
between 35 and 45 miles per hour.
Three experts confirmed Officer
Arreola’s testimony that Officer Arreola
was speeding at the time of the collision.
The experts estimated that the police
vehicle’s speed at the point of impact
ranged between 44 and 47 miles per
hour; and his pre-braking speed was
between 51 and 65 miles per hour.
The LAPD’s pre-trial admissions
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Before trial the LAPD responded to
plaintiffs’ requests for admissions. The
following admissions made by the LAPD
would be read to the jury:
Admission No. 44: “The LAPD has no
civilian witness that heard the patrol
vehicle’s sirens activated at the point of
impact.”
Admission No. 45: “The LAPD has no
civilian witness that heard the patrol
vehicle’s sirens activated as it ... entered
the intersection at the location of the
collision.”
Admission No. 64: “At the time of the
collision, Officer ... Arreola was required
to obey the California Vehicle Code.”
collision, Officer ... Arreola had a duty
to drive with due regard for the safety of
all persons using Boyle Avenue.”
collision, Officer ... Arreola had a duty
to drive with due regard for the safety of
... Monroy.”
collision, Officer ... Arreola was not
responding Code 3.”
collision, LAPD policy required LAPD
officers to obey the California Vehicle
Code when responding Code 2.”
Admission No. 77: “LAPD policy
requires LAPD officers to obey the
California Vehicle Code when responding Code 2.”
Admission No. 83: “According to
LAPD policy, a backup request is a Code
2 response.”
collision, LAPD policy required LAPD
officers to respond Code 2 when
responding to a backup request.”
Before trial the plaintiffs brought a
motion in limine to exclude comments,
argument, or reference to, any exemption from, compliance with the Vehicle
Code or traffic laws for police vehicles
under Vehicle Code section 21055; and
to preclude any jury instructions or special verdict forms on the emergency
vehicle exemption under Vehicle Code
section 21055. (Veh. Code, § 21055 provides an exemption from liability for
vehicles responding to an emergency in
certain situations. One of the conditions
for the statute to apply is the use of
lights and siren while responding.) The
trial court granted the motion without
prejudice, subject to defendants establishing a sufficient foundation.
The trial
The case was tried in the Mosk
Courthouse in downtown Los Angeles,
before the Hon. Kenneth Freeman. At
trial there was extensive testimony about
the meaning of “Code 2,” “Code 3” and
LAPD policies. Among other factual disputes, the parties contested whether
Officer Arreola turned off both the siren
and the overhead lights after he had
gone through the intersection at First
Street and Boyle Avenue.
•The eyewitness testimony
Plaintiffs had been able to locate an
eyewitness, Juan De Los Santos, who was
selling tacos from a vending cart near
the intersection where the chase started.
In his deposition he testified that he saw
the police vehicle as it entered the intersection of First Street and Boyle Avenue
and until the time it collided with
Monroy’s car. He testified that he initially heard the siren and saw the overhead
lights turned on, but that both the siren
and lights had been turned off at the
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time of the collision. De Los Santos
explained that he was not in the U.S.
legally, that he was getting divorced and
planned to return to Mexico to open a
restaurant. Because the parties anticipated that it might be difficult to arrange
for him to review the deposition transcript with a court-certified interpreter,
they stipulated that if this could not be
arranged that an unsigned copy could be
used as an original.
The plaintiffs sought to use De Los
Santos’s deposition at trial, but the defense
objected, claiming that plaintiffs had not
been diligent in seeking to obtain his testimony and that there was no showing that
he resided more than 150 miles from Los
Angeles. At hearings on the issue, plaintiffs
put on the testimony of a private investigator, who had been unable to locate De Los
Santos in the U.S., but who had obtained
his telephone number in Puebla, Mexico.
They also put on the testimony of his former wife, who testified that he had told
her he was going back to Mexico, that he
was living in Puebla, Mexico, had been in
an accident and could not drive, and that
he was a Mexican citizen without a visa.
The trial court ruled that this testimony
was inadmissible hearsay, and that plaintiffs had not made a sufficient showing that
De Los Santos resided more than 150
miles from the courthouse. It refused to
allow plaintiffs to put his deposition testimony into evidence.
•The expert testimony concerning
Vehicle Code section 21055
The defense called expert Ronald
Moen to testify about LAPD’s training
with regard to Vehicle Code section
21055. Plaintiffs argued that defendants’
pretrial admissions made Section 21055
inapplicable and precluded most of
Moen’s testimony. The trial court held a
hearing outside the presence of the jury
to determine the effect of the admissions.
In addition to other arguments,
defendants asserted that the admissions
read to the jury (including Admissions
Nos. 44, 45, 64, 68, 69, 71, 75, 77, 83,
and 84) did not preclude Moen’s testimony. Defendants brought to the trial
court’s attention three other requests for
admissions (Admissions Nos. 66, 70, 76)
that plaintiffs had not submitted to the
jury. Defendants argued these three
admissions elucidated and explained the
admissions relied upon by defendants,
e.g., Admissions Nos. 44, 45, 64, 68, 69,
71, 75, 77, 83, and 84, and thus, it was
proper to admit Moen’s testimony.
Defendants also asserted that the evidentiary matters contained in the testimony
had established a factual basis for the
application of Vehicle Code section
21055.
The trial court ruled, “I find that
there is enough of a factual dispute that
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admissions with [those brought to the
attention of the court by defendants] plus
the evidence that I’ve heard so far, I
don’t believe that you have established
issue preclusion at this point in time on
that basis.”
After the close of evidence, the trial
court instructed the jury with the law
pursuant to Vehicle Code section 21055,
as requested by defendants.
•The restrictions on expert testimony
Judge Freeman permitted only one
expert to testify to the same opinion,
including percipient witnesses, regardless
of which party elicited the testimony.
Thus, for example, plaintiffs were permitted to call a witness in their case in
chief, but were precluded from asking
other experts to render an opinion on
the same issue. At times, this prevented
plaintiffs’ experts from rendering an
opinion that already had been elicited
from a defense expert or from police
personnel. For example, the parties contested whether the police vehicle’s high
beams on the headlights were off or on at
the time of the collision. Plaintiffs first
called an LAPD criminalist to testify on
this issue. But when plaintiffs sought to
introduce evidence from their own accident reconstruction expert on the same
issue, the trial court severely curtailed the
questioning.
The jury rendered a nine-to-three
verdict in favor of defendants, finding
Officer Areola had not been negligent.
Plaintiffs appealed based on the court’s
evidentiary rulings: (1) allowing testimony and instructing the jury concerning
Vehicle Code section 21055; (2) refusing
to allow the De Los Santos deposition
testimony into evidence; and (3) improperly curtailing the examination of the
plaintiff ’s experts. The Court of Appeal
reversed, finding that each ground independently required reversal.
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Error in allowing testimony at odds
with the LAPD’s admissions
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Tristar is the one to call.”
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The Court of Appeal held that it was
error for the trial court to allow the
LAPD to introduce evidence at variance
with its responses to the requests for
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MARCH 2009
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admissions served by plaintiffs and read
to the jury, because those admissions
should have conclusively determined that
there was no basis for the defense to rely
on Vehicle Code section 21055 and to
instruct the jury on the effect of that
statute.
The Court explained that all the evidence showed that Officer Arreola was
exceeding the 25 mile-per-hour speed
limit at the time his vehicle collided with
Monroy’s vehicle. Defendants asserted
that he was not negligent, however,
because he was exempt from liability pursuant to Section 21055. But the plaintiffs
correctly contended that the exemption
provided by that statute was inapplicable
because defendants unequivocally admitted prior to trial that at the time of the collision, Officer Arreola was required to obey
the Vehicle Code (Admission No. 64),
that at the time of the collision, he was not
responding Code 3 (Admission No. 71),
and that a backup request is a Code 2
response (Admissions Nos. 83, 84)
requiring the responding officer (Officer
Arreola) to obey the Vehicle Code
(Admissions Nos. 75, 77).
Concerning the binding nature of
admissions made under Code of Civil
Procedure section 2033.010, and the trial
court’s discretion to allow parol evidence
to explain those admissions, the court
explained:
Code of Civil Procedure section
2033.010 et seq. authorizes parties to
propound requests for admissions. A
matter admitted in a response to a
request for admissions is “conclusively
established against the party making
*260 the admission ... unless the court
has permitted withdrawal or amendment of that admission....” (Code Civ.
Proc., § 2033.410, subd. (a); see Murillo
v. Superior Court (2006) 143
Cal.App.4th 730, 736 [49 Cal.Rptr.3d
511].) Trial courts have the discretion
to consider parol evidence that explains
an admission. (Fredericks v. Filbert Co.
(1987) 189 Cal.App.3d 272, 277-278
[234 Cal.Rptr. 395] (Fredericks ).)
However, while courts may utilize evidence to elucidate and explain an
admission, they cannot use such evidence to contradict the plain meaning
of a response to a request for admissions. (Ibid.) If a response to a request
for admission is unambiguous, and is
not subject to different meanings, the
matter admitted is conclusively estab-
lished. (Id., 164 Cal.App.4th at 259,
260.)
The Court concluded that because
the defendants admitted that “At the
time of the collision, Officer ... Arreola
was not responding Code 3, it was conclusively established that Officer Arreola
was required to drive within the posted
25 miles-per-hour speed limit at the time
of the collision. Further, defendants
admitted that “[a]t the time of the collision, Officer ... Arreola was required to
obey the California Vehicle Code.”
(Admission No. 64.) Hence, defendants
admitted that Officer Arreola was
required to obey the speed limit. As
the Court put it, “Because he was not
responding Code 3, the exemption of
Section 21055 did not apply and the trial
court erred in instructing with that section. Given the unambiguous reading of
the instructions, there is not room for
explanation.” (Id., 164 Cal.App.4th at
260.)
The Court concluded that the introduction of evidence concerning Section
21055 was necessarily prejudicial, since
the only basis for the jury to find that
Officer Arreola had not been negligent
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was to accept the defense argument
based on Section 21055. Without this
critical instruction, the court found that it
was reasonably probable that the jury
would have reached a different result.
Error in excluding the De Los Santos
witness testimony
2025.620, subdivision (c)(1) permits the
introduction of deposition testimony in
lieu of live testimony if “[t]he deponent
resides more than 150 miles from the
place of the trial or other hearing.”
Unavailability need not be shown.
Hearsay can be used to provide the foundation to establish that a deponent
resides 150 miles from the courthouse
(e.g., Topanga Corp. v. Gentile (1967) 249
Cal.App.2d 681, 689-690 [58 Cal.Rptr.
713]).
Essentially, the appellate court concluded that all the evidence in the record
established without contradiction that De
Los Santos resided more than 150 miles
from the courthouse. While the trial
court had broad discretion to rule on the
admissibility of evidence, it did not have
discretion to ignore uncontradicted,
admissible evidence on this point.
In light of the significance of De
Los Santos’s testimony, this error was
prejudicial. The defense had introduced
only one civilian witness who testified
that he saw the police car both before
and after the accident and that the overhead lights were on. De Los Santos’s testimony “directly contradicted this witness and would have provided plaintiffs
with crucial evidence to prove that the
overhead lights on the police vehicle
were off at the time of the collision.”
(Id., 164 Cal.App.4th at 266.)
Accordingly, the Court held that,
“Therefore, the trial court’s refusal to
permit the introduction of De Los
Santos’s highly relevant testimony on a
key factual dispute was prejudicial and
warrants a new trial.” (Ibid.)
The undue restrictions on
examination of witnesses
The Court also found that the trial
court’s restrictions on witness testimony
went too far, and were prejudicial, and
would provide another basis for reversal.
The Monroy decision’s explanation of why
the trial court’s approach constituted
reversible error is likely to be of great
utility to trial lawyers for years to come:
Trial courts may not use their powers
to control the orderly conduct of the
proceedings, to prevent cumulative
evidence . . . if it destroys a plaintiff ’s
evidentiary presentation. Overly
restrictive limitations on the introduction of evidence and on the method
and manner of presenting a case can
undercut a plaintiff ’s case by preventing that party from presenting evidence in an organized and coherent
way. Even if a defense expert will testify
to the same conclusion as a plaintiff ’s
own expert, the testimony will not be
identical, will have different focus, and
will be accompanied by different explanations. Subtleties in responses can be
critical. Repetition is often the key to
believability and credibility may be
enhanced when a defense expert
agrees with a plaintiff ’s expert.
Identical or virtually identical evidence
may not be cumulative if there is significance to the evidentiary weight to
be given. . . . It is often invaluable to
have evidence come from different
sources. (Id., 164 Cal.App.4th at 267.)
The appellate court also found that
the severe limits placed on the plaintiff ’s
cross-examination of the defense’s main
witnesses were an abuse of discretion. In
explaining its conclusion, the appellate
court provided a brief, but invaluable
lesson in trial advocacy:
It must be observed that crossexamination is much more art than
science. A skillful cross-examiner can
fatally injure the opponent’s case and
gain admissions that can strengthen
his or her own. The recognition of
these principles is even more important when cross-examining an adverse
expert witness. The successful crossexaminer will attack not only the opinions and conclusions of the expert but
the factual underpinnings and rationale used by the expert in forming
them. This frequently requires not
only repetitive questions, but asking
the same question in different styles
and ways. It can require a laborious
construct of foundational facts and the
use of hypothetical questions in order
to demonstrate that the expert’s opinion is untenable, illogical, or inapt
under the facts of the particular case
being litigated. Cross-examination is
frequently the measure that tips the
scale in persuading the jury to accept
the cross-examiner’s position and
fatally wound the case of the opposition. (Id., 164 Cal.App.4th at 267.)
Conclusion
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Monroy is an unusual and very helpful decision. The appellate court could
have reversed solely on the basis of the
requests for admissions, and elected not
to reach the other issues in the case, or
to exclude them from publication. But
the court correctly saw the need to
explain all the ways that the trial court
had abused its discretion, so that future
litigants could benefit from the correction of those errors. Trial lawyers will be
better off as a result.
Jeffrey Isaac Ehrlich is the editor-in-chief
of The Advocate. He was CAALA’s Appellate
Lawyer of the Year for 2008, and also for
2004. He is a cum laude graduate of the
Harvard Law School, and is certified by the
State Bar of California as an appellate specialist. He is in sole practice in Claremont,
CA. [email protected].
MARCH 2009
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Book
Review
Todd J. Bloomfield
John F. Denove
Use jury instructions and
verdict forms to guide the jurors
[Editor’s Note: This article was taken from
syllabus materials of CAALA’s 2008 Las
Vegas Convention.]
Ultimately, jury instructions are not
used until the close of trial. That does
not mean you need not think about them
until you reach the end of trial. Despite
their ultimate application, for a litigator
they should be not only an ending point;
they should be a starting point. It is our
job to prove our cases to the jury. The
elements of each cause of action that we
must prove are found in the jury instructions. Jury instructions therefore should
be referenced at the beginning of the
case, and kept in mind throughout the
process.
Jury instructions should be a starting
point. When analyzing a new case, peruse
the instructions. The jury will use this law
as its tool for analyzing your case. The
attorney should too. The jury instructions
are a guide for marshaling the evidence.
Through the discovery process, you need
to uncover admissible evidence for each
element of the claim found in the
instructions.
Even for an experienced practitioner, review of the instructions is a good
reminder as to how the jury will examine
your case. While you may be very familiar
with what you need to prove to establish
your cause of action, the jury instructions
will remind you how the inexperienced,
non-legal juror will look at your case.
Jurors walk into a courtroom knowing
nothing about the law. They will not be
told what the law is until the end of the
case. You will have to present evidence to
them in such a manner that when the
instructions are read to them, it all ties
together.
You may think of a cause of action
for negligence as: duty, breach, cause, or
MARCH 2009
damages, but that is not exactly what a
jury is told. What evidence you are going
to obtain and the questions you will ask
to obtain that evidence should reflect the
questions which will be in the jurors’
minds. Those questions will be framed by
the language of the jury instructions.
When drafting a complaint, jury
instructions are a good guide for the elements to include in your pleadings.
When confronted with a demurrer or
motion to strike, jury instructions can be
a simple source to overcome defendant’s
legal assertions. Jury instructions are a
concise guide or roadmap for where you
will be going.
CACI instructions are the standard
and helpful to consumer cases
BAJI was the old standard for jury
instructions. BAJI served the courts well
for years but were not the best way to
explain the law to the jury. The Judicial
Council created the Task Force on Jury
Instructions to make jury instructions
easier to understand. The goal was to
improve BAJI and employ simple and
straightforward language to help a jury
understand the law.
On September 1, 2003, the Judicial
Counsel California Civil Jury Instructions
(CACI) were officially adopted. The task
force used shorter sentences, direct language, and illustrative examples to
achieve its goal. Although there were
some bumps along the way, the new
instructions are a great improvement. For
example, under BAJI, the burden of
proof was stated to the jury as follows:
Preponderance of the evidence’
means evidence that has more convincing force than that opposed to it. If the
evidence is so evenly balanced that you
are unable to say that the evidence on
either side of an issue preponderates,
your finding on that issue must be
against the party who had the burden
of proving it.
Using a word like “preponderates”
to explain what “preponderance” means
did not give a lot of guidance to a jury.
To a juror with limited legal experience
and with some members having potentially limited education, the obligation to
present a preponderance of evidence
sounds like a huge burden.
The new CACI instruction dealing
with the burden of proof actually provides some guidance and helpful information to a jury. Try a case today and the
burden of proof will be explained to a
jury as follows:
A party must persuade you, by the
evidence presented in court, that what
Requested by Plaintiff
Request by Defendant
Given as
Requested
Given as
Modified
Requested by
Given on Court’s Motion
Refused
Withdrawn
Judge
he or she is required to prove is more
likely to be true than not true. This is
referred to as ‘the burden of proof.’
After weighing all of the evidence, if
you cannot decide that something is
more likely to be true than not true,
you must conclude that the party did
not prove it. You should consider all
the evidence, no matter which party
produced the evidence.
In criminal trials, the prosecution
must prove that the defendant is
guilty beyond a reasonable doubt. But
in civil trials, such as this one, the
party who is required to prove something need prove only that it is more
likely to be true than not true.
The revised instructions are a terrific tool for all trial attorneys, and the
ability to explain the law to jurors is
especially helpful to consumer attorneys
trying to overcome defense efforts to
confuse juries and complicate cases.
“More likely than not” is a great explanation of “preponderance of the evidence.” It makes sense when you hear it.
With the change to this simple explanation, we can incorporate that instruction
into our cases. For example, in the past
you may have asked a medical witness if
his opinion rose to a reasonable degree
of medical probability – not a helpful
term. Now, we can ask if the opinion is
more likely true than not true. It is plain
English for the jury to understand and
correctly interprets the law.
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The procedure for submitting
jury instructions was simplified
with CACI
www.cdrb-law.com
While there are many commercial
sources for jury instructions, the best
source is from the horse’s mouth. The
Judicial Counsel provides CACI online
10100 Santa Monica Blvd., Suite 2460, Los Angeles, CA 90067
310-277-4857
MARCH 2009
Jurors — continued from Previous Page
in a Portable Document format (PDF).
Anyone can use the file with the free
Adobe Acrobat Reader which comes on
every computer. The online version also
includes Use Notes and Sources of
Authority. Best of all, you can copy and
paste from the PDF into your regular
word processing software to create casespecific, edited instructions. The instructions are available at: www.courtinfo.ca.gov/
jury/civiljuryinstructions/juryinst.htm. If
you cannot remember the link, simply
Google “CACI jury instructions,” and you
will find them.
Sample of Request for Jury Instructions
MARCH 2009
Under the BAJI system, attorneys
were required to submit jury instructions
on “tear-offs.” Tear-offs were simply 8½”
by 11” paper that were perforated. At the
top of each page, a pre-printed box
appeared (See chart on previous page).
When the court resolved what instructions would be given, the judge could simply tear the instructions language off the
bottom and provide it to the jury.
Few judges still mandate the use of
the tear-off, although they still exist.
Technically, such a requirement violates
California Rule of Court, Rule 2.1055(e).
However, you probably do not want to
battle with your judge over the format of
jury instructions.
Pursuant to California Code of Civil
Procedure section 607a, before the first
witness is sworn, each party must submit
proposed jury instructions on each issue
raised by the pleadings. Los Angeles
County Superior Court Local Rule No.
7.9 requires that proposed instructions be
filed and served at least five days before
the Final Status Conference.
Most commonly, each party submits
a pleading titled “Proposed CACI Jury
Instructions” which lists the number of
each instruction requested. While most
judges will permit this, technically, such a
format does not comply with the Code.
To submit proposed jury instructions, you should file Plaintiff ’s Request
for Jury Instructions and Plaintiff ’s
Index of Jury Instructions. The Request
for Jury Instructions should be on pleading paper, and begin as follows: “To All
Parties and to Their Attorneys of Record:
[¶] Plaintiff hereby requests the instructions, attached hereto, be given to the
jury in the trial of this matter.”
Attached to the Request for Jury
Instructions should be each proposed
instruction, edited to include the party
name where appropriate, the proper pronoun, and unnecessary bracketed material deleted. Each instruction should be on
a separate piece of paper. The CACI
instruction number and the CACI
instruction title should be at the top of
the page.
Special instructions should be provided the same way. Special instructions
should be numbered consecutively and
should list authority at the bottom. No
citation is required for approved instructions.
You are entitled to have all jury
instruction issues resolved before closing
arguments. It is critical to incorporate
significant jury instructions into your
closing argument. As much of an
improvement that CACI instructions are,
the instructions are still complex. For the
most critical part of your case, and for
the instructions most important to your
case, take the time to review those few
instructions with the jury and apply the
facts of your case to those instructions.
Almost certainly, you will want to discuss
the burden of proof and cause.
There is no requirement dictating
whether the jury must be instructed
before or after closing argument.
Usually the judge has a preference and
the attorney has no say. To the extent
you can convince the judge to instruct
prior to closing, it will assist you in
arguing to the instructions. Without the
jury being instructed first, you must
introduce the critical instructions to the
jury and argue to 12 people who know
the facts of your case but still do not
know the law. While you have the
advantage of going first in closing without the jury being instructed first, that
means you also have the burden of providing information about the instructions. By having the judge instruct the
jury before your closing argument, you
will not have to spend extra time getting the jury familiar with the instructions, and you can focus your efforts
and attention on more important
issues.
Draft the verdict form to focus the
jury’s attention
Once the jury has been instructed
and closing arguments are complete, the
jury retires to deliberations. After selecting a foreperson, a jury often lacks focus
and direction in deliberation. They may
flounder for a while discussing various
highlights of the trial and laughing
about particular mannerisms of the
attorneys. Eventually, they will get down
MARCH 2009
Jurors — continued from Previous Page
We evaluate all issues of
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form, there are only a few areas with
room for variation. Depending on the
case, itemizing damages in the verdict
form requires the jury to focus separately
on each item of damages. For example,
instead of asking, “What are Plaintiff ’s
economic damages,” list lost earnings,
lost profits, and past medical expenses,
as separate line items.
Depending on your case, instead of
asking for past noneconomic damages,
consider separating out the elements of
non-economic damages. Non-economic
damages include physical pain, mental
suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and
emotional distress. By itemizing the elements of damages, you can stress those
most significant to your case. It may be
easier to obtain a higher verdict by having the jury write down several small
numbers instead of one large number.
While each individual number may not
be large, because each element is itemized, the final verdict can still be significant.
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Conclusion
Preparing proposed jury instructions and verdict forms is a necessary
task for every jury trial. Treating this as a
burden misses the importance and the
value of this task. Drafting these documents is not time-consuming and both
are important. Take the time to review
CACI in every case, and, if possible, do
not wait until the week before the final
status conference to do it. It is time well
spent for which you will surely see
results.
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to the case, and often turn to the verdict
form to direct deliberations.
Given that this document may direct
deliberations, and will focus the jury’s
verdict, your ability to craft this document, or at least influence it, can be very
powerful.
In addition to jury instructions,
CACI also provides verdict forms. The
CACI verdicts are a great start, and
judges will expect your proposed verdict
form to resemble the CACI forms.
Realistically, if you want the court to seriously consider your proposed verdict
Todd J. Bloomfield is a founding partner
of the Law offices of Rice & Bloomfield. His
practice focuses on representing parties in the
litigation process whether protecting their civil
interests of defending them in the administrative arena. Bloomfield graduated from UCLA
with honors obtaining a degree in business/economics. He attended law school at
USC and was admitted to the State Bar of
California in 1991. He serves as vice-chair
of the Education committee and is a member
of CAALA’s Board of Governors.
MARCH 2009
Lewis L. Laska
Why you lose medical-negligence cases
According to statistics1, for every 100
medical negligence cases filed, only one
results in a plaintiff ’s verdict. Six result
in a defense verdict, 22 are settled in the
plaintiff ’s favor, and 71 are either
dropped or tossed by judge. Why?
Because as a health-care victim’s lawyer,
you lose when you fail to overcome
defenses.
It’s as simple as that: The secret to
winning medical negligence cases is overcoming defenses. You must anticipate
and overcome each and every defense
the doctor and the hospital raise.
Remember, there is no penalty for raising
“frivolous” defenses. The more of these
“frivolous” defenses that the defendants
can raise, the greater the likelihood is
that one will stick in the jurors’ minds.
The fake “second opinion”
Here’s an example. “She should
have gotten a second opinion.” This is a
wholly specious defense but jurors internalize it because it supports their world
view that “This would never happen to
me because …” That is called defensive
attribution. In failure to diagnose breast
cancer cases, female jurors simply conjure this defense even when not raised
directly by the doctor. But the doctor will
indirectly raise it.
You must overcome the fake “second
opinion” defense by forcing the doctor to
admit in deposition that the patient had
no duty to get a second opinion. But
that’s not enough. You must file a motion
in limine barring such testimony. And
you must demand a jury instruction on
this as well.
Now you “get it.” You must overcome
defenses, not just meet them.
Eleven defenses
There are essentially eleven defenses
that can be used in a health-care-liability
case. You have to learn how to overcome
all of them:
• No breach of the standard of care.
• The patient had an anatomical anom50 — The Advocate Magazine
MARCH 2009
aly. This is another way of saying no
breach of the standard of care, but it confuses jurors and confusion always favors
the defendants.
• Independent intervening cause. In
other words, somebody else, possibly the
patient himself, caused the injury.
• The medical records don’t reflect what
actually happened.
• Unforeseen complications arose, or
these were normal complications.
• Honest mistake of judgment.
• No harm was intended. Not a legal
defense, but an effective practical one.
• The “noble physician” defense, akin to
no harm was intended, but subtler.
• No harm was caused by anything the
doctor did or failed to do, “He was
gonna die anyway.”
• She should have gotten a second opinion.
• It was the patient’s own fault. Really it
was.
One reason you don’t overcome these
defenses is because you don’t anticipate
them. You think the jury will use “common sense” and “see right through” the
defendant’s nonsense defenses. Not so.
Juries are not on the victim’s side. They
are clearly biased in favor of health-care
workers. And the law favors them, too.
Here’s an example: Doctors and the
hospital left a surgical instrument inside
the patient’s abdomen during surgery.
Seems like a clear case of medical negligence, right? No, because the defendants
always have defense,s and it only takes one
defense argument to win.
Defenses: We X-rayed him after the
surgery and saw the instrument, but we
thought he was simply lying on top of it,
not that it was inside him.
Overcoming defenses: It was a breach
of the standard of care to do this type of
X-ray; the standard called for a side view
too. The defendants just wanted to save
money by hurrying up the surgery and
left the instrument inside of him, and
they just wanted to save money by not
doing the proper type X-ray to discover
their negligence. Besides, it was a clear
breach of the standard of care to operate
on a man who is lying on an instrument
– and our expert witness has explained to
you why doing so shows even more negligence and greed on the defendant’s part.
You lose because you allow the doctor too much “wiggle” room to make
excuses (defenses). You must force the
doctor into a defensive position and
eliminate any room to wiggle. That
begins with the medical records.
Medical records
Lock the defendants into the medical records. Ask about every word, every
abbreviation, and every notation. Get the
doctor to read out loud what it says.
Here’s why. The nurses’ notes say, “No
pulse.” The doctor will read that as,
“Normal pulse.” You must ask what the
words used actually mean. Never assume
you understand the doctor’s meaning of
a word. Next, ask whether it accurately
reflects what happened. Remember, doctors will read and explain what the notation says, but come back later and say,
“But that’s not what really happened,”
unless you lock them in from the very
beginning.
Complications
You lose because you allow doctors
to get away with a subtle form of lying, in
particular, with their use of the term
“complication.”
Since 1981 the AMA Code of Ethics
requires a doctor to tell the truth “even in
the face of a potential lawsuit.” But the
rules do not require telling the whole
truth; only that which provides the patient
with enough information “so the patient
can make a proper medical decision about
what to do next.” This loophole allows
doctors to claim the existence of a “complication” without telling whether this was
an avoidable complication.
In deposition, you must ask the doctor to explain the difference and ask this:
“Doctor, this was an avoidable complica-
tion wasn’t it?” If you get an equivocal
response, keep questioning, “Really,
why?” Always keep asking, “This complication happened because you were trying to save money or time, right?” Or
this, “You overlooked this complication
because you were in a hurry, right?”
Never think that asking about
defenses somehow tips off the defendants to defenses they never thought
about. Defense lawyers and insurance
companies have plenty of cases just like
yours where specious defenses were
raised and they won.
Standard of care
You must learn not only the standard of care, but must learn the standard defenses for this medical condition
or procedure and have a clear plan to
overcome these defenses. The best way
to do this is find as many cases as you
can that involve this same condition or
procedure. Order a computer search
from a jury-verdict publisher and be sure
to ask for defense verdicts! Too many
victims’ health-care lawyers only want
victims’ verdicts thinking their only need
is to find good experts and high verdicts
to shame the other side into settling. It’s
false economy. Knowledge of defense
verdicts is actually more useful in
preparing to overcome defenses.
Here’s an example. Consider a
seemingly straightforward case: The
neurosurgeon performing back surgery
(fusion) operated at the wrong level. But
if the case actually goes to trial, doctors
win 40 percent of these cases, because
health-care victims’ lawyers can’t overcome two common defenses. The first is
anatomic anomaly. The second is the
classic, “I didn’t do anything wrong, he
did.” Precisely, the neurosurgeon blames
the radiologist for not telling him where
to operate, or telling him wrongly.
Anatomic anomaly/blame the patient
Never brush aside a defense, no
matter how silly. If a piece of gauze is
MARCH 2009
Lose — continued from Previous Page
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MARCH 2009
found deep in the patient’s intestine, the
doctor may insist the patient swallowed it
or shoved it up her rectum herself –
defenses that make no sense and insult
the patient. But juries believe them,
especially the anatomic-anomaly defense
and the blame-the-victim defense.
The anatomic-anomaly defense must
be met head-on. The defendant must be
confronted with an array of anomalies
shown in standard textbooks and medical
literature and vigorously examined about
why this anomaly was not recognized, and
why there was no plan about how to deal
with it. Gall-bladder surgery lawsuits have
become a struggle over how to deal with
the anomaly defense. After doctors are
sued, they suddenly becomes experts on
anomalies, it seems.
The blame-the-patient defense must
be attacked in this way, “Doctor, what are
the three things the patient did that were
the real cause of this outcome?” After he
names something such as, “Well, she was
a cigarette smoker,” ask, “Gosh, that’s a
lot, any more?” His follow-up answer will
tell the tale. It will produce his real
defense or sound so silly it can be transformed into a theme for trial. “He says
she was so fat he could not reach inside
her to find the missing sponge!” I actually had a surgeon offer that “defense,”
after which he quickly blamed the sponge
count failure on the nurses. But he was a
macro-liar. In fact, he took no actual part
in the surgery. It was done by a resident
while the surgeon sat in the room reading a newspaper.
Listen carefully when defense counsel interrupts a deposition with speaking
objections. You are close to bumping into
a defense the other side does not want
you to know about. For example, if you
ask the cause of death and the doctor
repeats what’s written on the death certificate (“cardio-respiratory arrest”) and
defense counsel seems either too eager to
agree with that or very defensive (“That’s
what it says, counsel!”), you must probe
behind the certificate. Get the doctor to
explain the sequence that led up to the
patient’s death. The doctor must be
made to explain the cause of death in
excruciating detail. “Really, and then
what happened?” is your mantra. The
doctor’s supposed to know, right?
Never allow doctors to wriggle away
from their own conduct, leaving others to
fight for them. You must ask the one
question that locks them into an immobile defensive position. “You have had
several years to ponder this question,
and I know you are concerned with the
outcome of this trial. If you were faced
with a patient today with the exact same
set of symptoms that the plaintiff had
four years ago when he presented himself to you, would you do anything differently than you did then with regard to
the diagnosis and treatment of the
patient?” Never let the doctor avoid or
qualify the answer to this question; it
must be “no.” Simply keep asking the
question in a different way until you get
that answer.
Defensive attribution
Defensive attribution must be anticipated and defeated. Weaken a defensive
attribution problem by placing it in front
of the jury early. “They say that because
the patient smoked cigarettes, she was
likely to have this so-called complication.
But they didn’t tell her about it!” (The
“she-was-a-smoker” defense resonates
with health-conscious jurors who eagerly
want to fix blame on the patient.) In
fairness to doctors, if the patient was
truly at fault, don’t take the case –
although I don’t know any lawyers who
would take such a case “just to see what
happens.”
You must overcome an array of
defenses in even the most straightforward case. Here’s an example. Facts:
Heart bypass surgery brings unusual pain
in the left flank. An X-ray taken three
days later shows a laparotomy pack
(sponge) left behind. Clear liability?
Think again; there are always
defenses. Defense: No breach – it was the
nurse’s duty to count sponges, you
should have sued them or the hospital.
Second defense: No injury; thoroscopy did
not add to the patient’s overall pain.
Third defense: The bypass surgery saved
the patient’s life. (Noble physician.)
Overcoming defenses: Oops, that’s right.
There really is no Captain of the Ship
doctrine anymore so sue the nurses/
hospital and keep them in the suit.
MARCH 2009
Lose — cont. from Prev. Pg.
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Don’t settle with one defendant just to
fund the rest of the case. To overcome
the so-called “no injury” defense, force
the defendant to view and explain a
thoroscopy video during their deposition
just to “show how it’s done.”
Overcome the “noble physician”
defense by forcing the defendant doctor
to explain how much he charged for his
services that caused injury and ask, “And
this happened because you were in a
hurry to do something else or to save
money for yourself or the hospital,
right?” (One neurosurgeon I know has
posed the ultimate medico-legal question: “Why is there never enough time
to get it right the first time, but always
enough time to perform repair/
corrective surgery?”)
“Rules of the Road”
The best way to overcome the causation defense is to get causation from the
mouth of subsequent treating physicians,
including those who would never point
the liability finger at a colleague. Because
lack of causation is such a powerful
defense in failure to diagnose cancer
cases, do not take such a case unless at
least one subsequent treating doctor will
(reluctantly) endorse causation.
In overcoming defenses, one expert
is not enough. You must have at least two
standard-of-care experts – one to “teach”
and one to “preach.” [Editor’s note: this
can be very difficult in California, where
trial judges tend to limit the use of
cumulative experts.] It adds expense, but
gives a built-in psychological advantage.
The defendant doctor will have to hire
two experts to effectively lie for him –
one of them will likely falter because he
has actually testified differently in another similar case. (Dirty secret: Defendants
use the same experts over and over.) But
your case will not turn on expert testimony, despite the law’s emphasis on experts
saying the magic words of liability and
causation.
Jurors actually ignore both sides’
experts and reach their decision on their
personal beliefs (world view) but give
slightly more weight to the practitioner
with more hands-on experience than any
medical school professor. Don’t be afraid
to use just one expert to drive home just
one point, usually causation.
Recent trial strategy has adopted
the so-called “Rules of the Road,”
which in simple terms means taking
away from the doctor the notion of
“honest error” or “honest judgment”
and getting him to “agree” on a “rule”
(standard of care) that “everyone”
agrees upon. This is vital to overcoming the victim’s biggest hurdle, namely
proving the standard of care. You must
find medical literature that supports
your position. The doctor must never
be allowed to contend he acted reasonably. Instead, he failed to follow the
“Doctor Rules of the Road,” and
caused this result. Over and again, use
the term “doctor rules,” to drive home
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the point that this case is not about
“lawyer” rules, it’s about a doctor who
was in too much of a hurry to follow
his own rules.
In recent years, doctors have reemphasized the lack of causation
defense because it relieves stress on
jurors – they know the doctor violated
her own Rule, but they still don’t want to
give your victim any money (he didn’t
earn it, after all.) So jurors quickly
accept the no causation defense because
it allows them to say, “Well, he just didn’t
prove his case.” (You did; you just didn’t
make them angry enough to do anything
about it.)
You must understand what is behind
the array of defenses against you in order
to overcome them.
Medical Narcissism
Doctors offer fake defenses (which is
really a form of lying) because they sometimes suffer from a condition called
Medical Narcissism. In simple terms, it
means they spend most of their psychic
time thinking about themselves, even
when “caring” for patients. When
Medical Narcissists make a mistake, they
quickly rationalize, and during this period they engage in seven different “excuses.” You must know them all because they
will linger and turn up as defenses. They
are:
• Euphemistic language. Failure to see
cancer on an X-ray is called “an unappreciated lesion.”
• Advantageous comparison. “Telling
what really happened will only make the
patient feel worse.”
• Distorting the consequences. “Well, it
is a blessing in disguise.”
• Displacement of responsibility. “It
was really the hospital’s fault too.”
• Diffusion of responsibility. “The nurses were supposed to remind me.”
• Attribution of blame. “It was the
patient’s own fault.”
• Fragmentation. “I do more good than
bad.”
Fragmentation gives the doctor a
kind of moral justification for doing
wrong and getting away with it and
expecting others to help him. It’s no
secret that the poet/writer Robert Louis
Stevenson, who was always sick, wrote the
novel, Dr. Jekyll and Mr. Hyde – he even
wrote a poem about a medical liability
case! (See Ruth Richardson, “Silent Pilots
of the Shore: Robert Louis Stevenson
and Medical Negligence,” The Lancet,
vol. 356 (December 23-30, 2000), p.
2171.)
Turn the doctor’s own Medical
Narcissism against him. Frame your
questions to allow his narcissistic
toxins to surface. “Well, doctor, you
really didn’t tell the patient what happened because you thought it would
only make the patient feel worse,
didn’t you?”
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Lose — continued from Previous Page
Daniel Y. Zohar
Medical Narcissism is behind the socalled “malpractice crisis,” because few
doctors will admit their mistakes, apologize and offer fair compensation.
Instead, they evade responsibility.
Seasoned health-care victims’ lawyers
know the following lessons from bitter
experience – all designed to bolster a socalled defense.
Never expect a doctor to tell the
truth – although she would if she caused
the same injury in a motor vehicle acci-
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dent – when charged with medical negligence. Expect fetal monitoring tapes to
disappear. “Late” entries appear in
medical records – out of sequence.
Partners shade the truth. The hospital
pathologist will always side with the hospital first, the doctor second, and the
patient third, regardless of scientific evidence.
Fake science appears as mainstream
knowledge because it was mentioned in
the medical literature. “The lacerated
esophagus was caused by the patient’s
own coughing, really it was, because it
was identified in the medical literature
years ago.” It’s okay to use these fake
defenses, even near-fraudulent defenses,
insist doctors, because of all the good
they do everyday.
Your job as a victim’s health-care
liability lawyer goes beyond seeking compensation for this victim. By constantly
making doctors play by the Rules, by
challenging their fake and overblown
excuses raised in the form of defenses,
you are guarding the public’s health and
upholding the value of human life. You
just do it with a law license, not a medical
license.
Lewis L. Laska is a Nashville victim’s
malpractice lawyer. He is a professor at the
College of Business, Tennessee State
University. He has been an AAJ Member since
1976, and is the founder and publisher of
“Medical Malpractice – Verdicts, Settlements
& Experts,” the nation’s oldest medical malpractice verdict reporter. He is author of
Sue the Doctor and Win! Victim’s Guide
to Secrets of Malpractice Lawsuits. You
can learn more at www.suethedoctor.com
E-mail: [email protected].
Endnotes
Statistics are drawn from the following sources:
James W. Jones, et al., “From Premiums to Payouts:
Who’s Behind the Malpractice Crisis Anyway?”
Journal of Vascular Surgery (March 2005) 43: 635638; C. A. Schmidt, “Medical Mistake: Doctors and
Insurers Say Malpractice Awards Must be Capped.
Their Diagnosis May be Wrong,” U.S. News and World
Report (2003); Gail Garfield Weiss, “Malpractice: Are
Frivolous Suits Really a Problem?” Medical
Economics (Jan. 6, 2006), p. 12.
1
92706
MARCH 2009
Let’s roll the videotape!
Basic tips for taking video
depositions and using them at trial
This article will answer the “why”
and “how” on the issues of taking videotaped depositions and using them at
trial. At the time I was first asked to write
this piece, I was gearing up for a trial in
a case where I had taken approximately
100 depositions, all of which were videotaped. Some might ask, “Why bother?”
The following will address the reasons
why videotaped depositions can (and
should) play a key role in most cases, as
well as the practical and procedural side
of actually using these videos effectively
at trial.
The power of video
Since about 1998, I have videotaped
virtually every deposition I have taken. By
no means am I suggesting that everyone
should necessarily videotape all of their
depos (although I can imagine more than
a few videographers who wouldn’t mind
such a plug). However, in every case,
there will be critical depositions where
simply having a written transcript will not
do justice to the content of the testimony,
and in fact, may weaken your case altogether. To demonstrate, consider these
two hypothetical examples:
•Example 1: Video deposition of
Reckless Ralph.
Imagine that you are deposing the
defendant driver in a serious auto accident matter. You suspect that the defendant was drinking alcohol shortly before
the accident, but you have no objective
proof at this time. In the middle of the
depo, you ask him:
Q: At any time on the night of the
accident, but prior to the accident, had
you consumed any alcohol?
In response, the witness stares
silently at you for a few seconds, absorbing your question. He then turns to his
counsel with a nervous smile and a half
shoulder shrug, wondering if his attorney will be objecting to the question.
Upon realizing that he will have to
answer the question, he turns back to
you. He looks up for a moment as if he
is looking for guidance, but then looks
back down. He then starts to turn pale
and sweaty. Thirty seconds pass in
silence – still no answer. He opens his
mouth as if to answer, but quickly reconsiders, looking down again. Another 30
seconds pass, and the silence is now
making everyone uncomfortable. You
can hear his attorney nervously shifting
in his seat. Finally, he lifts his head
slightly, but without looking at you,
says in almost a whisper, “No.”
•Example 2: Written transcript of
Reckless Ralph.
Here’s how that same moment would
appear on the written transcript:
Q: At any time on the night of the
accident, but prior to the accident, had
you consumed any alcohol?
A: No.
As you can see, then, the video will
give you numerous layers of information
that would be completely missed on the
written transcript. These include things
such as silence where a simple, quick
answer would be expected, nervous mannerisms, lack of eye contact, lack of conviction, etc. Moreover, seeing how the witness reacts to a question and hearing the
intonations of their voice in their answer
are critical types of information that
allow a jury to more fully assess a witness’s credibility. Yet, if all you have is the
written transcript, that powerful multitude of information is distilled down into
just one bland dimension, virtually eliminating everything compelling about that
moment in the deposition. Instead of
creating a breakthrough sound byte to
play at mediation or trial, you are left
with almost nothing of any use.
In light of the above, it is essential
that for any key deposition, you capture
it on videotape. More often than not, it
will enhance the value of your case. In
addition, videotaping depos tends to
have a restraining effect on boisterous
opposing counsel, as well as unruly witnesses. If you want to have more control
over the proceedings, videotaping is a
great tool.
Videotaping on a budget
I suspect that many attorneys still do
not videotape their depositions because
they have trouble justifying the cost. To
me, given how a 10-second video clip can
make or break a whole case, it’s hard to
MARCH 2009
Video depositions — continued from Previous Page
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imagine not videotaping a deposition.
With that said, here are some tips on
how to cost-effectively videotape your
depositions:
Take your own videos. For nonexpert depos, there is nothing preventing you from having someone at your
office handle the camera, or you can
even just cheaply hire a college or law
student to do so. They may not get paid
much, but it gives them exposure to
what attorneys do, which is a great value
to them. So long as you follow the procedural requirements of Code of Civil
Procedure section 2025.340, there is no
need to hire a professional videographer
for a lay witness.
Work out a deal with a videographer.
Many videographers, if they know you
will be using them on a regular basis,
will negotiate better rates than advertised. Since it’s a competitive field, get
quotes from a few, let them all know
you’re shopping around, and then ask
them to give you their best offer. You
may also be able to collectively negotiate
in conjunction with other law firms and
negotiate a group deal with a videographer in exchange for using them exclusively. Short of that, just using the
CAALA listserve to compare rates can
save you quite a bit.
Use conference rooms already
equipped for videotaping. Some court
reporting agencies (and some law firms,
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for that matter) have conference rooms
set up for videotaping, where you literally just have to pop in a tape or CD and
hit a button to begin. You may be able to
work out a deal to use their conference
room, saving yourself the costs of purchasing video equipment.
Lastly, remember that video deposition costs are specifically recoverable if
you prevail in the case. (See Code Civ.
Proc., § 1033.5, subd. (a)(3).) Therefore,
not only do videotaped depositions
enhance the value of your cases, but it’s
a bet that you can hedge when you seek
to recover costs.
I’ve got all this video. Now what?
It’s one thing to videotape your
depos, but it’s another to actually use
them in trial. This section will address
the practical and procedural considerations for using videos at trial.
• I synch, therefore I am.
Unless you use a professional videographer who does this as part of your
package, you will need to have your
videos converted to the proper MPEG
format and have the videos synched with
the written transcripts. What this means
is that in order to play the video
excerpts for the jury, rather than just the
entire deposition, you must have the
ability to carve out portions according to
the page and line number in the written
transcript. The two most common ways
of doing this are 1) Having your videos
synched into a self-executable format or
2) synching the videos for use with trial
presentation software.
If you expect to be in trial on a regular basis, then it makes sense to invest a
few hundred dollars in some good trial
presentation software such as Sanction
or Visionary. With either, however, you
will need synched versions of your
videos. With these tools, you will be able
to accomplish the widest variety of functions at trial. These include having clips
set up in advance which can be used for
cross examination (or in the case of a
party, having clips ready for use at any
time of the trial, which are permitted to
be used for “any purpose” under Code
Civ. Proc., § 2025.620(b)). In fact, in
cases where you have a defendant that
comes across in deposition as untruthful
or unreliable, you may want to have a
“best of ” set of clips ready to go right at
the start of trial. The defendant then
becomes pinned down by their own
words before they ever take the stand and
the jury’s perception of the defendant’s
credibility will be tainted for the remainder of the trial.
As for using the trial presentation
software, there are many vendors who
will run it for you at trial for a fee, which
can make your trial preparation much
easier, but at the same time run up your
trial costs. For smaller cases, attorneys
can certainly operate the software by
themselves or with the help of someone
from their office. There is a learning
curve, but the most popular programs
are relatively user-friendly. I have been
able to learn how to use the software
without spending a lot of time reading
through manuals. If I can teach myself
how to use it in trial, anyone can.
If you don’t want to invest in trial
presentation software or a trial presentation consultant, most videographers have
the ability, for an extra charge, to provide
you the video in a self-executable format
that allows you to call up portions by
page and line number without the need
for separate software. The downside is
that these self-executable formats may
not allow you to create and save clips
ahead of time, create a string of clips
from different portions of the deposition
that can be played seamlessly, or allow
you to use visual effects such as splitting
a screen to show the witness on one side
and an exhibit on the other (which can
greatly enhance the jury’s ability to follow
what is being said). Thus, the more complex the case (and your needs), the more
likely the trial presentation software will
be the better choice. But for simple cases
with just a few witnesses and relatively
straightforward testimony, using the selfexecutable format is more than adequate.
• The designation dilemma
In order to play videotaped excerpts
at trial (at least for non-impeachment
purposes), parties are required, under
2025.340, to designate in writing before
trial those portions they intend to use.
Specifically, section 2025.340, subdivision
(m), states, in pertinent part:
A party intending to offer an audio
or video recording of a deposition in
MARCH 2009
evidence under Section 2025.620 shall
notify the court and all parties in writing of that intent and of the parts of
the deposition to be offered. That
notice shall be given within sufficient
time for objections to be made and
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ruled on by the judge to whom the
case is assigned for trial or hearing,
and for any editing of the recording.
Objections to all or part of the deposition shall be made in writing. The
court may permit further designations
of testimony and objections as justice
may require. With respect to those portions of an audio or video record of
deposition testimony that are not designated by any party or that are ruled
to be objectionable, the court may
order that the party offering the
recording of the deposition at the trial
or hearing suppress those portions, or
that an edited version of the deposition recording be prepared for use at
the trial or hearing . . . .
The problems with section 2025.340,
subdivision (m), are twofold. First, it gives
a vague timeline for when you need to
provide your video designations to the
other side (“within sufficient time for
objections to be made and ruled on by
the judge”). What is sufficient? A day? A
week? The second problem, and an even
more important reason to bring this up
at the Final Status Conference, stems
from the requirement that objections to
your designations be made in writing.
There is no guidance at all as to when
such objections must be made or when
they must be ruled upon. What inevitably
happens, then, without any further guidance from the court, is that the other side
will not provide you with written objections until the day before – or on the
actual day – you expect to play your
excerpts. The judge then has little or no
time to consider the objections, and in
the event the judge sustains any objections or requires you to play other portions, you are left with editing your clips
on the spot while an impatient jury
watches. (A further problem results from
Code Civ. Proc., § 2025.620, subd. (e),
which allows the opposing side to recite
or play any other portions of a deposition relevant to your excerpts. Some
judges may require you to edit your clips
on the spot upon such a request.)
One remedy for this is working out a
schedule with the judge and opposing
counsel at the FSC. Promise to provide
the other side with your written video
designations by a certain date for all of
them, or perhaps no later than a certain
amount of time before you intend to play
the clips for a particular witness (e.g.,
three days). In return, obtain a commitment from the other side as to when they
will file objections or notify you of additional portions to be played under section 2025.620, subdivision (e). At the
same time, obtain (hopefully) a commitment from the judge as to when he or
she will rule on any objections (preferably at least a day before you intend to
play the video). If the judge is noncommittal about establishing such a schedule,
remind the judge of your desire to use
the jurors’ time as efficiently as possible.
In short, the more you can bring these
issues out in the open prior to the start
of trial, the less likely you will be caught
off guard while your jurors are watching
and waiting.
• How to get in synch
Another technical issue that arises if
you use trial presentation software is how
to synch the video with the transcript.
Virtually all videographers that I have
used will offer video synching as a service. However, many of these vendors are
just acting as middle men, sending your
videos to sources that you could otherwise contact directly (and save money).
Therefore, do your homework and investigate pricing, making sure you are not
the victim of several layers of added profit margins.
The least expensive way to synch
your video is to do it yourself. For example, with a short deposition, you can have
someone at your office perform the
synching manually. With programs such
as Sanction, the synching process is as
simple as playing the video and hitting
the space bar each time a new line on the
transcript approaches during the video.
Now, if you have dozens or hundreds of
hours of videos, this may not be the most
attractive option for you. But for the
cost-conscious attorney with a straightforward case, you can easily train a legal
assistant or clerk to perform your synching for you.
If you do send your videos out to a
vendor, you can usually choose between
having them manually synch it for you
(which literally entails a person watching
the entire video for hours on end and hitting the space bar) or using their voice
recognition software. The pros and cons
are that the manual synching option is
slightly more accurate, but also more
expensive. If voice recognition software is
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Areas of Specialization
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Complex Litigation
Employment
Family Law
Insurance
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medical malpractice litigation prior to being appointed to the bench.
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MARCH 2009
used, you will save some money, but you
may have to do more adjusting when setting up your clips, as the video may not
align as precisely with each transcript line.
Whichever technique you use, it’s
important to review all of your clips
before you show them to the jury. If part
of a question or an answer is cut off, it
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can be embarrassing or even harmful to
your case.
• Know your venue
Whether you use a trial presentation
consultant in the courtroom or handle
the playing of video clips yourself (I have
done both over the years), it is essential
to work out with the judge (and more
often, with the clerk) how you should set
up your equipment in the courtroom. If
your screen is so far away that the jury
cannot see it, it will be of no use to you.
Find out if the judge will allow you to
dim the lights when showing any video
(or test your equipment to see if that is
even necessary). Make sure the volume is
adequate for the jury to hear (but not too
loud as to be distracting). In fact, you
should make sure you test out all the
equipment before the trial begins. Many
judges will let you set up before jury
selection to test out your equipment.
Also, more and more courtrooms now
have their own equipment that you can
plug into, making your set up much easier. Lastly, you should also seek out other
attorneys who have tried cases and shown
video clips in that judge’s courtroom to
find out valuable information that can
only be gained through experience.
• Have a backup plan
Whether you use a trial presentation
consultant or come armed with only your
own laptop, a projector and a screen,
make sure you have a backup of all your
videos, etc. in case something goes
wrong. For a small investment, you can
purchase external hard drives capable of
storing hundreds of gigabytes of videos.
A cautious attorney would have everything he needs on a backup drive, and
probably on a separate laptop computer,
too, in the event there were any technical
difficulties with your computer. After all,
if your computer crashes while the jury is
patiently waiting, you’re not going to
have time to call tech support. You need
a simple and quick alternative.
Specific requirements related to the
use of video depositions
There are a number of procedural
requirements and practical tips with
which you must familiarize yourself,
depending on how you intend to use
your videos. Here are a few:
General rules
• Be familiar with all of the procedural requirements of Code of Civil
Procedure section 2025.340, which outlines the conduct at the video deposition
itself and sets forth the requirements for
the person taking the video, the room
used, etc. If the video deposition is not
conducted properly, it can be precluded
from use on a technicality.
• Put in every deposition notice language regarding your intent to videotape. The specific notice requirements
for lay witnesses are found in Code of
Civil Procedure section 2025.220, subdivision (a)(5). There is nothing that
requires you to actually videotape a deposition that is noticed for video, but you
cannot videotape where the notice does
not provide for it. Therefore, the solution
is to add boilerplate language to all of
your depo notices expressing your intent
to videotape. Then at least the option of
videotaping is preserved.
• When taking a video deposition,
remember to act as if the jury is in the
room with you. Speak clearly and act
professionally. Also, if you’re showing the
witness an exhibit, start off by describing
the document on the record to ensure
there is no confusion about what they’re
describing (“I’m now showing you what
has been marked as Exhibit 1, which is a
five-page letter dated November 3,
2002, from Mr. Smith to Big Insurance,
Inc.). If there is a particularly important
part of the document, have the witness
read it out loud into the record. It will
make it easier for the jury to understand
later on if that portion of the video is
played.
• Take advantage of the added audio
and visual dimensions. For example, if
the witness keeps looking at his attorney
after each question during an important
line of questioning, I like to remind them
on the record that their attorney can’t
answer for them. This will key the jury in
on what’s going on, so from that point
forward, every time the witness stares at
his attorney, the jury will assume that the
witness is hesitant to use his own words.
Party depositions
As stated above, party depositions can
be used at any time for any purpose. (Code
Civ. Proc., § 2025.620, subd. (b).) Because
of this, you should have clips for pertinent
issues lined up and ready to play before the
trial begins. You can often use these clips
throughout the trial to juxtapose favorable
testimony with a defendant’s unreliable
MARCH 2009
Expert depositions
There are different requirements for
notice and for deposition logistics when
an expert is being videotaped. Some key
areas to consider:
• If you intend to play the expert’s
video deposition at trial, rather than call
her live, your deposition notice must
indicate such an intention to the other
side. (Code Civ. Proc., § 2025.220, subd.
(a)(6).)
• You cannot have someone that
works for or is related to you or your
client, or has a “financial interest” in the
case, manning the video camera without
a stipulation. (Code Civ. Proc., §
2025.340(c).)
• If you do intend to use your
expert’s video depo at trial, make sure
you cover all the necessary elements of
their testimony and use the “magic language” needed. This includes the reasonableness of medical expenses, the
reasonable certainty of future care or
damages, or in the case of medical
malpractice, opinions to a “reasonable
medical probability.” If you do not
have the requisite terminology stated
in their opinions, opposing counsel
may be able to exclude the testimony
altogether, leaving you painted into a
corner.
Third-party depositions
• Remember that, pursuant to Code
of Civil Procedure section 2025.620, subdivision (c)(1), you can use at trial, in
lieu of live testimony, the deposition of
any witness who resides more than 150
miles away. There is no need to show
that they are unavailable at trial or that
you even attempted to subpoena them at
trial. As a result, if you want to use someone’s deposition at trial who is beyond
the 150 mile radius, make sure to establish on the record, when you depose
them, where they currently reside and
whether they intend to remain there
through the time of trial.
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• Even if a third party deponent
resides less than 150 miles away, if you
don’t think live testimony will be necessary or more useful, ask the other side on
the record if they’ll stipulate to using the
video at trial. I like to ask the witness if
they’re available to testify during the trial
period, then say, “Of course, I’m willing
to stipulate on the record right now that
we can use this video at trial and not
have to burden you with taking time off
from work. Will counsel for the defense
stipulate?” If they say “yes,” you’ve saved
yourself the trouble of having to subpoena and schedule the witness. If they say
“no,” the witness now knows that you
tried your best not to inconvenience
them and will likely be more cooperative
if and when you do subpoena them.
For all videotaped depositions
Remember to lodge your written
deposition transcripts with the court
before trial. California Rules of Court,
Rule 2.1040 requires that “a party offering into evidence an electronic sound or
sound-and-video recording must tender
to the court and to opposing parties a
typewritten transcript of the electronic
recording. The transcript must be
marked for identification . . . .” This is
particularly important if objections are
raised to your video clips. The judge will
then have the written transcript available
to rule quickly.
Conclusion
We now live in an age where most
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Rather than struggle against your jurors’
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Daniel Y. Zohar is the sole shareholder of
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Bryan Milner
Structured settlements:
Protection during dangerous economic times
Structured settlements have always
been the right choice for safety, stability
and reliability in good times and in bad
times. Certainly, the financial crisis that
the U.S. and global economies are experiencing is a very sobering reminder
about the need for safety and stability.
Despite the inundation of gloom and
doom financial reports regarding banks,
industry leaders and the overall stock
market, the settlement industry, and the
structured-settlement annuity specifically,
remain strong and clear of any sort of
negative publicity. In fact, because structured-settlement annuities are so well
capitalized, reserved and monitored by
state and federal regulatory agencies,
there has been no concern about their
safety and reliability.
The National Structured Settlement
Trade Association (NSSTA) has provided information on their Web site,
www.nssta.org, to claimants and attorneys regarding the financial protection
that structured settlements provide,
especially during the current economic
crisis. One of their pieces of information lists the three types of protection
that structured settlements offer:
Life insurance company reserves and
surplus
State insurance laws require the
establishment of a “reserve” for every
obligation undertaken by a life insurance
company and strictly regulates a life
insurer’s investments. Typically, more
than two-thirds of the investments corresponding to a life insurer’s required
reserves are held in “investment grade”
bonds, with less than five percent in the
stock market. Changes in share price or
adjustments in credit ratings do not
change an insurer’s ability to make its
scheduled structured settlement annuity
payments.
MARCH 2009
Even with all of its recent financial
challenges, AIG (American General) has
never been in danger of defaulting on
any of its commitments to annuity holders:
We have a very strong message for
consumers: If you have a policy with
an AIG insurance company, they are
solvent and have the capability to pay
claims.
– National Association of Insurance
Commissioners (NAIC) President Sandy
Praeger, news release, 9/16/08
Furthermore, all companies issuing
structured settlement annuities must
maintain a “surplus” of additional capital
above and beyond the reserve required to
meet their obligations.
State insurance regulation
Any life insurance company offering
structured settlements in California must
obtain and maintain approval from the
California Department of Insurance.
This approval is contingent upon, among
other things, detailed financial reporting
that allows regulators to evaluate the solvency and compliance with California’s
regulations.
California’s rules provide for the use
of more conservative accounting rules,
mandatory annual audits, and minimum
capital/surplus requirements. California
insurance regulators also have the right
to conduct independent reviews and
spontaneous audits to ensure compliance.
In the extremely unlikely event that
an insurance company becomes financially troubled, California regulators have
authority to take immediate action. If the
life company’s existing asset base and
business are considered solid, the regulator may choose a restructuring plan.
With court oversight, regulators or their
appointees will attempt to build capital
and clean up the operations, with the
ultimate goal of returning the insurer to
good standing.
Municipal
Bond
Treasury
Securities
Lifetime Income
Payments and distribution are No. Pays a fixed rate of interSince the bond's payment
determined up front. Provides est that accumulates in the
Predictable income and
rate is known in advance,
repayment of principal in full
dependable income stream
account for the duration of
investors may have a reliable
with lifetime income option the CD - typically 3 months
if held to maturity.
income stream until maturity.
available.
to 5 years.
Lifetime Income
The annuity issuer, as provided by the terms of the structured settlement agreement,
guarantees payments.
Costs/Fees
No additional cost to the
annuitant.
Penalty for early withdrawal.
Qualified structured settlements are income tax free.
Earnings are fully taxable.
California Life and Health Insurance
Guarantee Association
The CLHIGA Web site,
www.califega.org provides the following
information:
The California Life & Health
Insurance Guarantee Association is a
statutory entity created in 1991 when
the California legislature enacted the
California Life and Health Insurance
Guarantee Association Act. The guarantee association is composed of all
insurers licensed to sell life insurance, health insurance, and annuities
in the state of California. In the
event that a member insurer is found
to be insolvent and is ordered to be
liquidated by a court, the Guarantee
Association Act enables the guarantee association to provide protection
(up to the limits spelled out in the
Act) to California residents who are
holders of life and health insurance
policies, and annuity contracts, with
the insolvent insurer.
Specifically, when a member insurer
is found to be insolvent and is ordered
liquidated, a special deputy receiver
takes over the insurer under court
supervision and processes the assets
and liabilities through liquidation. The
task of servicing the insurance company’s policies and providing coverage.
California’s resident policyholders
become the responsibility of the guarantee association. The protection provided by the guarantee association is
based on California law and the language of the insolvent company’s policies at the time of insolvency.
The limit in California is $100,000
in the present value of annuity benefits,
Certificate
of Deposit
(CDs)
Structured
Settlements
Tax Consequences
Market Fluctuations
No. Benefit payments are
determined and fixed at the
time the settlement is finalized and cannot be changed.
including net cash surrender and net
cash withdrawal value.
Hartford Life Insurance Company
has provided a comparison chart of
Structured Settlements and Fixed Income
Investments. The chart above compares
key features of a structured settlement
with some of the most common fixed
income options and concludes that characterized by minimal risk, tax-free status,
and a competitive rate of return, a structured settlement is the most attractive
fixed income option available:
Yes. The Federal Deposit
Insurance Corp (FDIC)
insures CD deposits up to
$250,000.
Yield depends on interest
rates determined by market
forces.
Guaranteed for initial investThe full faith and credit of the
ment period only. Call feature
US government guarantees
may force reinvestment of
payment of interest and prinprincipal and accrued interest
cipal at maturity.
when interest rates are low.
Issued at face value. Bond
must be held to maturity to
receive the face value of the
bond.
If purchased through a broker, brokerage fees apply.
Generally, interest is exempt
Subject to federal taxes, but
from federal income tax. May
exempt from state and local
be exempt from state and
taxes.
local taxes in state of issue.
If sold prior to maturity, value
Yes. Value will be affected by
will depend on market condiinterest rate flucations and
tions. Investors may receive
any call options.
more or less than they paid.
Structured settlement annuities will
continue to be the foundation of any
good settlement plan based on their
safety, reliability, and competitive rates
of return for the foreseeable future.
Claimants are facing choices in whether
to receive a lump-sum payment or
structure their settlement into periodic
payments. I believe a combination of
the two is a smart choice in today’s economic times. It would be wise for
claimants to have a comprehensive
financial plan that will provide cash
upfront and a guaranteed tax-free
stream of income to meet their specific
needs.
Bryan Milner is a graduate of the
University of Missouri. He has been a licensed
agent and a deferred annuity sales agent for
10 years. He served as vice president of the
New Business Annuity Department of a life
insurance company for four years and as marketing director for a structured settlement company for five years. He is currently a settlement planner for Millennium Settlements.
Call 818-902-5544.
MARCH 2009
From the
Executive Director
The Original
By Stuart Zanville
Injured Workers
Attorneys
Lilly Ledbetter’s legacy: Clear proof where
President Obama stands on Consumer issues
When then-Senator Barack Obama
launched his presidential campaign two
years ago, many members of Consumer
Attorneys of Los Angeles had doubts
about where he stood on their issues.
That’s why Obama was the third choice
of many plaintiffs’ attorneys behind John
Edwards and Hillary Clinton.
The very first bill signed by nowPresident Obama erases those doubts.
On Jan. 29, President Obama signed
the Lilly Ledbetter Fair Pay Act, legislation that restores civil rights for
American workers that had been taken
away by a 2007 U.S. Supreme Court decision. President Obama says that the Fair
Pay Act is part of a broader effort by his
administration to “update the social contract,” reinvigorate civil rights and close
the pay gap between men and women.
Ms. Ledbetter, now 70, worked for
19 years as a plant supervisor at a tire
factory in Alabama. At about the time she
retired, she learned that her pay for all
those years was far less (40 percent less)
than male supervisors at the same plant.
A jury found that her employer, the
Goodyear Tire and Rubber Company,
was guilty of pay discrimination under
Title VII of the Civil Rights Act of 1964
and Ms. Ledbetter received a judgment
of $360,000.
But in 2007, the U.S. Supreme
Court rejected her lawsuit against
Goodyear, not because the case lacked
merit, but because the Supreme Court
held that she had not filed her claim in a
timely manner. The justices didn’t deny
that she had suffered discrimination, but
instead ruled that her claim was invalid
because it should have been filed within
180 days of when she received her first
paycheck.
This departs from earlier opinions of
other courts that the 180-day statue of
limitations begins with the last check the
employee received, not the first.
Justice Samuel Alito’s opinion
Writing for the majority, Justice
Samuel Alito said that the statute of limitations must be strictly interpreted to
protect employers against “stale claims”
and “tardy lawsuits.” The truth is that in
many instances, women who have been
paid less than men for comparable work
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would not realize they were being paid
less for many years, if ever.
Apparently common sense wasn’t
part of Justice Alito’s opinion, as New
York Times columnist Gail Collins wrote,
“Let us pause briefly to contemplate the
chances of figuring out your co-workers’
salaries within the first six months on the
job.”
Justice Ruth Bader Ginsburg, in a
dissenting opinion, wrote that there was
evidence of “a long series of decisions
reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular.”
The Supreme Court decision was
extremely damaging to the rights of
employees in pay discrimination cases
because of the precedent it set, with
other courts reversing themselves after
initially ruling for employees because of
the High Court decision.
In a Jan. 5 article in the New York
Times, Robert Pear wrote:
In the last 19 months, federal judges
have cited the Ledbetter decision in
more than 300 cases involving not only
Title VII, but also the Age
Also State Bar Defense
(818) 986-9890
www.exechlth.com
tel 310-451-0456
www.LegalMalpracticeExperts.com
E-mails: [email protected]
[email protected]
“The anti-work comp,
work comp firm”
Discrimination in Employment Act;
the Fair Housing Act; a law known as
Title IX, which bars sex discrimination
in schools and colleges; and even the
Eighth Amendment to the
Constitution which protects prisoners’
rights.
The new bill makes it clear that each
paycheck is a violation of the law and
that the 180-day time limit begins with
the last time an employee received a discriminatory pay check, not the first.
Predictable outrage
Since President Obama signed the
bill, the usual suspects have issued a barrage of predictable outrage. The U.S.
Chamber of Commerce rails that it will
result in an explosion of litigation and
the National Association of
Manufacturers says it’s a clear sign that
labor won the presidential election.
Newspapers like the Denver Post,
however, take a different view. An opinion piece in the Post said that the Lilly
Ledbetter Fair Pay Act is not an attack on
business, but that it sets reasonable
guidelines for pay discrimination claims.
The Post article said:
And we doubt the Ledbetter decision
would result in an onslaught of discrimination lawsuits. What the
Ledbetter Act would do is set a realistic
deadline that gives people who believe
they’ve suffered discrimination a
chance to seek a remedy. That’s not
pro-labor. It’s merely pro-fairness.
Some conservative radio talk show
hosts, like Mike Gallagher, screamed that
the bill is nothing more than a presidential gift to the trial lawyers and that Lilly
Ledbetter only did what she did for the
money.
Sorry, the truth gets in the way of
that bogus argument.
As Gail Collins wrote in the N.Y.
Times:
Ledbetter, who was widowed in
December, won’t get any restitution of
her lost wages; her case can’t be
retried. She is now part of a long line
of working women who went to court
and changed a little bit of the world
in fights that often brought them minimal personal benefit.
Making a difference to working
women
Consumer Attorneys of Los Angeles
Board of Governors member, Maryann P.
Gallagher, who has been trying harassment, discrimination and retaliation
cases on behalf of employees for 17
years, agrees with Collins. Gallagher
says, “People that make the law don’t
benefit from it, but everybody else does.”
Yes, Consumer Attorneys will be
compensated when they receive favorable results on behalf of their clients in
future wage discrimination lawsuits, but
the greater satisfaction for most is making a difference in people’s lives by
ensuring that businesses be held
accountable when women and minorities
are the victims of pay discrimination.
My wife and I have two daughters
who, at 22 and 25, have been working
for only a handful of years. Yet, both
have already experienced firsthand how
women are routinely discriminated
against in the workplace when it comes
to wages, promotions and benefits. Both
learned that they were paid less than
male counterparts in similar positions at
the same location.
Thanks to Lilly Ledbetter and
President Obama, in the future my
daughters’ employers might think twice
before they continue past practices of
pay discrimination against women.
If you have questions or comments
about this column, feel free to contact
me at the CAALA office at (213) 4871212 or by e-mail at [email protected].
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MARCH 2009
From the
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Liz
By Hagan
Mike and
Consumer
Attorneys
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of Los Angeles
CAALA Board
of Governors
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From the
Editor
Editor-in-Chief
Appellate Reports
Insurance/HMOs/balance billing
Prospect Medical Group, Inc. v. Northridge
Emergency Medical Group
(2009) 45 Cal.4th 497 [87 Cal.Rptr.3d
299]
Section 1317 of the Knox-Keene Act
(the “Act”) requires emergency-room physicians to provide emergency services without first questioning the patient’s ability to
pay. The Act requires that when emergency-room doctors provide emergencyroom services to HMO members, the
HMO is obligated to reimburse the doctors
for the care provided. In situations where
there is no contract between the emergency-room doctor (or group) and the
HMO, disputes can arise about the
amount the of the bill. In situations where
the HMO fails to pay the entire amount
billed, the practice of the emergency-room
physician seeking the unpaid balance of
the bill from the patient is referred to as
“balance billing.” This case raised the issue
of whether balance billing in this context is
permitted by the Knox-Keene Act.
Prospect Medical Group (“Prospect”)
manages patient care by entering into
contracts with HMOs (called health-care
service plans in California). Essentially,
the HMO pays Prospect to provide medical care to its members. As a delegated
provider, Prospect is required to pay for
emergency care provided to the patients
who have subscribed to the HMOs with
whom it contracts. (Health & Saf. Code, §
1371.4, subds. (b) & (e).)
Northridge Emergency Medical
Group (“Northridge”) provided emergency
medical services to two California hospitals
under written contracts. Northridge provided emergency services to Prospect subscribers and billed Prospect. When billing
disputes developed between Prospect and
Northridge, Prospect filed lawsuits against
Northridge seeking, inter alia, a determination that the practice of balance billing
was unlawful.
Held: Balance billing in this context
is not permitted by the Knox-Keene Act.
The Act (1) intends to transfer the financial risk of health care from patients to
providers; (2) requires emergency-care
patients to agree to pay for the services or
to supply insurance information; (3)
requires HMOs to pay doctors for emergency services rendered to their subscribers; (4) prohibits balance billing
when the HMO, and not the patient, is
contractually required to pay; (5) requires
adoption of mechanisms to resolve
billing disputes between emergency-room
doctors and HMOs; and (6) permits
emergency-room doctors to sue HMOs
directly to resolve billing disputes, in that
emergency-room doctors may not bill
patients directly for amounts in dispute.
Emergency-room doctors must resolve
their differences with HMOs and not
inject patients into the dispute.
Interpreting the statutory scheme as a
whole, the Court concludes that emergency-room doctors may not bill a
patient for emergency services that the
HMO is obligated to pay. (The Court
limited its holding to situations where the
doctors have recourse against the HMO,
and expressed no opinion regarding a
situation where no recourse was available,
such as when the HMO disputes coverage, or is unable to pay the bill.)
Civil Procedure/Medical
Malpractice/calculation of interest
on judgments
Leung v. Verdugo Hills Hosp.
(2008) 168 Cal.App.4th 205
[85 Cal.Rptr.3d 203] (2d District, Div. 4.)
Patient prevails on medical-negligence action against hospital and is
awarded a judgment with a present value
of $14,893,277. As permitted by MICRA
(Code Civ. Proc., § 667.7), the hospital
moved for and was granted a periodicpayments schedule for the judgment. As
part of the judgment, the court ordered
the hospital to post a bond to provide
security for the judgment, in an amount
of 1.5 times the present value amount of
the judgment, or $22,339,916.
The Hospital sought a writ of supersedeas in the Court of Appeal seeking to
have the amount of the bond reduced to
1.5 times the amount of the judgment
that was presently due and which would
likely come due during the appeal. The
court summarily denied the writ. The
hospital then moved under Code of Civil
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Procedure section 996.030 to substitute a
lesser bond, arguing that the $22 million
bond was excessive in light of the fact
that it had purchased an annuity to
secure the periodic payments due under
the judgment. The hospital again sought
to have the amount of the bond calculated based on the amount of the judgment
presently due, and the amount likely to
come due during the appeal. The trial
court denied the motion, the Hospital
again sought a writ of supersedeas, and
the Court of Appeal again summarily
denied the petition. The hospital petitioned the Supreme Court, which grant-
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Appellate reports — continued from Previous Page
ed the petition for review and transferred
the case to Court of Appeal with directions to vacate its denial and to instead
issue an order to show cause. After further briefing and argument, the Court
denied the writ on the merits.
Section 917.1 of the Code of Civil
Procedure governs the manner in which
a judgment is stayed during appeal. It
requires that an undertaking must be
given for an amount twice the amount of
the judgment, unless the undertaking is
provided by an admitted surety insurer,
in which case it shall be for 1.5 times the
amount of the judgment. There is no
exception provided for lump-sum judgments made payable over time. Section
667.7 of the Code of Civil Procedure did
not transform the present value of the
Named to the
Daily Journal s Top 100
California Lawyers 2005
judgment into a judgment of a lesser
amount for the purposes of calculating
the amount of the undertaking required
by section 917.1; nor did the hospital’s
purchase of an annuity. The annuity was
purchased after the judgment had
already been stayed by the posting of a
bond, and appeared to represent a tactical choice – an attempt to present a
change in circumstances to justify the
renewed supersedeas petition.
Civil Procedure/Arbitration/
sufficiency of award or remedy
Mossman v. City of Oakdale
(2009) 170 Cal.App.4th 83
[87 Cal.Rptr.3d 764] (5th District)
Mossman was employed by the City
of Oakdale as an administrative secretary
Recipient of a
2006 CLAY Award
for Personal Injury Law
for the Chief of Police. When she was
notified by the City that her position was
being eliminated because of pending
budget cuts, she filed a grievance, arguing that the City had failed to file its own
personnel rules for reductions in force.
The City rejected the appeal, and the
matter was heard by an arbitrator. The
arbitrator found that the City had, in
fact, violated its personnel rules and
ordered that Mossman should be “made
whole,” but left it to the parties to work
out the details of the make-whole remedy.
When they were unable to do so,
Mossman filed a motion to vacate the
arbitration award on the ground that the
arbitration had failed to resolve all the
issues submitted for decision. When the
motion was denied she appealed. Held:
Named to Superlawyers
Northern California
Top 100 for 2008
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PERSONAL INJURY AND
WRONGFUL DEATH CASES
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[email protected]
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1998 President, Consumer Attorneys of California
MARCH 2009
an arbitration award that fails to specify
the appropriate remedy is not enforceable. The court remanded to the arbitrator to determine the appropriate nature
of the make-whole remedy.
Civil Procedure/sufficiency of service
of summons
Travelers Cas. and Sur. Co. of America v.
Brenneke
(2009 9th Cir.) 551 F.3d 1132
Travelers sued Brenneke, among others, seeking recovery under a commercial
surety bond. Brenneke failed to respond
to the complaint, so Travelers sought the
issuance of a default judgment. Brenneke
responded with an opposition stating that
he had never been served.
Travelers filed an affidavit [that] its
process server, stated that in the past he
had encountered “considerably difficulty”
in serving Brenneke, and was aware of
other process servers having similar difficulty. In this case he tried to serve
Brenneke four times without success. On
the fifth attempt, an adult male answering to the name of Paul Brenneke
responded to his ringing the intercom at
the Brenneke residence. When the
process server identified himself as such,
the person on the intercom responded,
“Oh great,” but never opened the door.
But the process server saw Brenneke
standing behind the window next to the
front door, watching him. The process
server held the summons and complaint
toward the window and said in a loud
voice, “You are served.” He then placed
the documents on the doorstep.
The district court denied the motion
to enter a default against Brenneke but
ordered him to answer. He did, raising
the sole affirmative defense of the lack of
personal jurisdiction. Travelers then filed
a motion for summary judgment on the
bond, which was granted. In rejecting the
affirmative defense of lack of personal
jurisdiction, the district court held that
Brenneke was properly served with the
summons and complaint as a matter of
law. The Ninth Circuit affirmed, finding
that Travelers had substantially complied
with the rules governing service under
FRCP, Rule 4(e)(2).
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Rule 4(e) provides that service upon
an individual may be accomplished by:
“(2) doing any of the following: (A)
delivering a copy of the summons and
complaint to the individual personally;
or (B) leaving a copy at the individual’s
dwelling or usual place of abode with
someone of suitable age and discretion
who resides therein.” The court noted
that in cases where a process server is
unable to effect in-hand service because
the defendant is attempting to avoid
service or refuses to accept delivery, it is
usually sufficient to touch the defendant
with the papers and leave them in the
defendant’s presence, or if touching is
not possible, to simply leave them in the
defendant’s proximity. The declaration
of the process server was sufficient to
establish that this had occurred.
Civil Procedure/sanctions/attorney’s
fees
Musaelian v. Adams
(2009) 45 Cal.4th 512
[87 Cal.Rptr.3d 475]
In Trope v. Katz (1995) 11 Cal.4th
274 [45 Cal.Rptr.2d 241], the Supreme
Court held that attorneys’ fees could not
be awarded under Civil Code section
1717 to attorneys who represented
themselves. The issue presented in this
case is whether attorneys’ fees could be
awarded as sanctions under Code of
Civil Procedure section 128.7 to a selfrepresented attorney.
Two earlier appellate cases had distinguished Trope and had held that prior
section 128.5 of the Code of Civil
Procedure would permit an award of
attorney’s fees as a sanction to a self-represented attorney. (Abandonato v. Coldren
(1995) 41 Cal.App.4th 264, 269 [48
Cal.Rptr.2d 429], and Laborde v. Aronson
(2001) 92 Cal.App.4th 459, 469 [112
Cal.Rptr.2d 119].) Held: Fees could not
be awarded to a self-represented attorney as a sanction under section 128.7.
In Trope the Court recognized that
awarding attorney fees to self-represented attorneys but not to other self-represented litigants “would in effect create
two separate classes of pro se litigants –
those who are attorneys and those who
are not – and grant different rights and
remedies to each.” (Id. at p. 277.) The
Court was concerned that such disparate
treatment between attorney and nonattorney litigants would be viewed by the
public as unfair, and that, “In our view,
the public perception of fairness in the
legal system is of greater moment than a
lawyer litigant’s claim to an attorney fee
award if he elects to represent himself.”
(Id. at 286.) This concern applies in this
case as well.
While section 128.7 does allow for
reimbursement of expenses, including
attorneys’ fees, its primary purpose is to
deter filing abuses, not to compensate
those affected by them. It requires the
court to limit sanctions “to what is sufficient to deter repetition of [the sanctionable] conduct or comparable conduct by
others similarly situated.” (§ 128.7, subd.
(d).) Subdivision (d) lists a number of
sanctions the court may impose, only one
of which relates to compensating the
moving party for the time and effort of
responding to a filing abuse. Even then,
subdivision (d) speaks not to compensating a party for the party’s time and
effort, but only to reimbursing reasonable attorney fees or other expenses, and
then only when “warranted for effective
deterrence.” (Ibid.)
The purpose of section 128.7 –
deterring filing abuses – will not suffer if
attorneys’ fees are not allowed to attorneys representing themselves. Section
128.7 provides the trial court with a wide
range of options all of which are
designed to deter filing abuses. These
options include ordering penalties
payable to the court. It follows that a
party who engages in abusive filing practices will not avoid monetary sanctions
simply because the opposing party is a
self-represented attorney.
Civil Procedure/pleading
sufficiency/nuisance
Birke v. Oakwood Worldwide
(2009) 169 Cal.App.4th 1540
[87 Cal.Rptr.3d 602] (2d District Div. 7.)
A California father brought action
on behalf of his daughter (“Melinda”)
against the owner of an apartment complex for nuisance and violations of the
Americans with Disabilities Act (“ADA”)
based on the defendant’s failure to
restrict smoking in the outdoor areas of
the complex. Specifically, Oakwood had a
longstanding policy of prohibiting smok76 — The Advocate Magazine
MARCH 2009
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William Veen
ing in all indoor units and in indoor
common areas, but permits smoking in
the outdoor common areas. When
Oakwood refused to ban smoking in the
outdoor common areas, Melinda brought
suit, asserting a single cause of action for
public nuisance. After a demurrer, she
filed a first-amended complaint, this time
asserting claims for both public and private nuisance, and adding claims under
the ADA. The first-amended complaint
alleged that secondhand smoke posed a
heightened risk of cancer and heart disease to the entire community, and also
alleged that Melinda suffered a different
kind of injury – aggravation of her asthma. The trial court sustained Oakwood’s
demurrer to the first-amended complaint
without leave to amend, and plaintiff
appealed.
Held: Reversed with respect to the
claims for nuisance, but affirmed with
respect to the ADA claim. (Perluss, P.J.,
dissented with respect to the ADA claim.)
To adequately plead a cause of
action for public nuisance based on the
presence of secondhand (or environmental) tobacco smoke in the outdoor common areas of her apartment complex,
Melinda was required to allege (1)
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Oakwood, by acting or failing to act, created a condition that was harmful to
health or obstructed the free use of the
common areas of the apartment complex, so as to interfere with the comfortable enjoyment of life or property; (2)
the condition affected a substantial number of people at the same time; (3) an
ordinary person would be reasonably
annoyed or disturbed by the condition;
(4) the seriousness of the harm outweighs
the social utility of Oakwood’s conduct;
(5) neither Melinda nor her parents consented to the conduct; (6) Melinda suffered harm that was different from the
type of harm suffered by the general
public; and (7) Oakwood’s conduct was a
substantial factor in causing Melinda’s
harm.
Paragraph 14 of the first amended
complaint alleges the condition impacts
all guests of the apartment complex
whenever any of them are present at one
of the three swimming pools, the common barbecue areas, the children’s playground or the outdoor dining areas and
expressly averred that the presence of
secondhand tobacco smoke “affect[s] a
substantial number of people at the same
time.” Although this may well constitute
only a general allegation of ultimate fact,
the rules of pleading require no more. A
plaintiff need not plead evidentiary facts
supporting the allegation of ultimate
fact. A pleading is adequate so long as it
apprises the defendant of the factual
basis for the claim. Melinda’s pleading
was adequate with respect to the elements of nuisance.
With respect to the ADA, the court
concluded that the statute did not apply
to apartments or condominium units.
The statute applies to “an inn, a hotel,
motel, or other place of lodging.” The
legislative history of the statute clarifies
that “other place of lodging” did not
include residential facilities.
MARCH 2009
Victory through the verdict form
Attention to a verdict form can save you aggravation
and prevent the unraveling of your case.
A trial can be quickly undone by a
faulty verdict form. This is especially true
for plaintiffs, who face catastrophe at
each special verdict question.
Creating the verdict form
Your verdict form works in concert
with the jury instructions, so it makes
sense to write them together. In many
cases, instruction choices will shape the
verdict form, particularly when special
instructions come into play. The verdict
form and jury instructions should therefore be compiled as far in advance of
trial as possible. The instructions must be
submitted before the witness is sworn,
(805) 570-0306
Jeffrey Isaac Ehrlich is the principal of the
Ehrlich Law Firm in Claremont. His practice
emphasizes insurance bad-faith and appellate
litigation. He is certified by the State Bar of
California as an appellate specialist, and is the
editor-in-chief of this magazine.
Corey Friedman
and local rules usually require even earlier submission, so you might as well get
the verdict form done at the same time.
(Code Civ. Proc., § 607A.)
There is also an advantage to reaching an early agreement with opposing
counsel about the verdict form, or seeking a court ruling on the subject if no
agreement is possible. If you have a final
verdict form completed and approved,
you can walk the jury through the verdict
form during closing argument. Just as
voters facing the countless initiatives on
the California ballot (does “yes” mean
I’m for it, or against it?), jurors could use
some help parsing the language.
General vs. Special verdict form
A general verdict has plenty of
advantages for plaintiffs: it can eliminate
set-offs and contributory fault; it can provide tax advantages for the winning
plaintiff; and on appeal the court must
assume that the jury found in favor of
the prevailing party on all material
issues. (Thomson v. Casaudoumecq (1962)
205 Cal.App.2d 549, 555 [“if the evidence supports implied findings on any
set of issues which will sustain the verdict
it will be assumed the jury so found....”].)
However, you have to be very lucky to
encounter a defense attorney who is
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Gary Rodich...
Victory — continued from Previous Page
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The most important characteristic of
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jury instructions at every step on the
chart. Ask other people to read over your
chart and proposed form, and simplify
anything your readers find confusing.
The Judicial Council is a good place
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Resource Center at www.courtinfo.ca.gov/
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of helpful information. You can find a
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instructions on its Web site at
http://www.courtinfo.ca.gov/jury/
civiljuryinstructions/documents/caci.pdf.
You can also try using language taken
from the jury instructions. After all, the
CACI instructions are designed to “accurately state the law in a way that is
understandable to the average juror,”
and their use is “strongly encouraged.”
(Cal.Rules of Court, rule 2.11050(a), (e).)
SAVE
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Opposing counsel will also have a hard
time objecting to such language.
Ambiguous verdicts
If the jury returns a conflicting or
incomplete verdict, do your best to convince the judge to send the jury back
into deliberations to clarify its verdict. If
you don’t, you are taking a risk: failure
to object to a verdict that is “merely
ambiguous” (as opposed to outright contradictory) may amount to waiver of the
defect, “particularly if the party’s failure
to object was to reap ‘technical advantage’….” (Zigami, Inc. v. Crone, Inc.
(2008) 160 Cal.App.4th 1083, 1092 ft.
5.)
In Mizel v. City of Santa Monica
(2001) 93 Cal.App.4th 1059, 1068-1069,
the jury’s response to one question suggested defendants had no liability, while
further responses suggested otherwise.
(The judge explained the inconsistency
to the jury and asked them either to
compose a question to the court, if they
needed further instruction, or to revise
their answers to better reflect their conclusions. (Id. at 1069-1070.) Although
defendants objected, the appellate court
found that the judge had acted properly.
(Id. at 1072-1073.)
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By taking the time to carefully prepare a special verdict form, you will be
able to prevent the jury from becoming
confused as well as prevent any undecipherable verdicts.
The ‘Resource Center’ offers
information, documents and other tools
to enhance your practice.
Need more information?
Email us: [email protected]
Corey N. Friedman has been an associate
at The Veen Firm, P.C. since 2006. She has
represented clients in a variety of third-party
personal injury lawsuits, including products
liability, construction accidents and premises
liability cases. She earned her J.D. from the
University of California, Hastings College of
the Law.
Gary Rodich
Attorney at Law
5335 Alhama Drive
Woodland Hills, CA 91364
• Workers’ Compensation Law
• Social Security Law
818-888-3000. T
[email protected]
www.rodichlaw.com
• Cases accepted throughout
Southern California
• 20 years experience at same location
• Bilingual staff
Referral Conversion & Retention.
Mr. Rodich retains 99.5% of qualified referred cases.
Last year Mr. Rodich was awarded
a seven-figure settlement for an injured worker.
Pain and post-trauma depression can cause
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Attorneys: To discuss lien services, contact Michael Asaly: [email protected]
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Conclusion
William Veen founded The Veen Firm, P.C.
as a sole practitioner in 1975, gradually
developing it into a firm of more than 40
attorneys and staff who represent severely
injured workers and consumers. He is a member of the American Board of Trial Advocates
and he was honored as the Trial Lawyer of the
Year by the San Francisco Trial Lawyers
Association in 2003.
SAVE
MONEY
David E. Hosmer
MBA, JD, LLM
Judges who have not encountered an
ambiguous verdict before may not be
aware that they can reinstruct the jury or
ask the jury to correct its verdict. You
should point out that judges are explicitly given this power by Code of Civil
Procedure section 619, and “[a]n ambiguous or inconsistent finding or verdict
presents a problem for a trial judge
demanding immediate solution.”
(Hathaway v. Spiro (1985) 164 Cal.App.3d
359, 367.)
If the judge excuses the jury before
the confusion is sorted out, your case
could become a lot more expensive:
inconsistent verdicts are good cause for a
new trial. (City of San Diego v. D.R. Horton
San Diego Holding Co., Inc. (2005) 126
Cal.App.4th 668, 682; see also Zigami Inc.,
supra, 160 Cal.App.4th at 1086-1087,
where a new trial was ordered when a
special verdict was “hopelessly ambiguous,” even though neither party objected
before the jury was discharged.)
MARCH 2009
MARCH 2009
Calendar
Advertiser’s Index
ADR Providers
ADJ Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
ADR Services, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
Carrington, R.A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
Creative Dispute Resolution - Paul Fritz . . . . . . . . . . .30
Daniels, Jack Mediation . . . . . . . . . . . . . . . . . . . . . . .54
Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .60
Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
Hosmer Mediations . . . . . . . . . . . . . . . . . . . . . . . . . .80
Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .70
Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .34
Redlands Arbitration & Mediation Services . . . . . . . .22
Rodich, Gary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
TLC Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Announcements
CAALA Government Relations . . . . . . . . . . . . . . . . . .15
CAALA Las Vegas – Save the Date . . . . . . . . . . . . . .27
CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .37
Attorneys – Appeals
Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77
Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Attorneys - Accepting Referrals
Asbestos Legal Center . . . . . . . . . . . . . . . . . . . . . . . . .11
Benson Bertoldo Baker Carter . . . . . . . . . . . . . . . . . . .4
Bisnar & Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Cheong Denove Rowell & Bennett . . . . . . . . . . . . . . .45
Dapeer, Philip D. (Bankruptcy) . . . . . . . . . . . . . . . . . .31
Edzant, Barry (Lemon Law) . . . . . . . . . . . . . . . . . . . .10
Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
Garretson Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . .25
Gelber, Bruce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Girardi l Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Glauber Berenson (Employment/WC) . . . . . . . . . . . .69
Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1
Johnson, Raymond Paul . . . . . . . . . . . . . . . . . . . . . . .71
Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .75
Khorrami Pollard Abir, LLP . . . . . . . . . . . . . . . . . . . . . .2
Kingsley & Schwam (LT Disability) . . . . . . . . . . . . . . .75
Attorneys - Accepting Referrals (cont.)
Law Offices of Gregory Patton . . . . . . . . . . . . . . . . .56
Michels & Watkins . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Michels & Watkins – Gregg A. Farley . . . . . . . . . . .39
Osborne & Associates . . . . . . . . . . . . . . . . . . . . . . . .72
Panish Shea & Boyle . . . . . . . . . . . . .Inside Back Cover
Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Sabaratnam & Associates . . . . . . . . . . . . . . . . . . . . .62
Simons, Rick (Trials, No. Calif.) . . . . . . . . . . . . . . . . . .74
The Law Offices of Brian D. Witzer . . . . . . . . . . .42-43
The Traut Firm (Trials, Orange Cty) . . . . . . . . . . . . . . .3
Your Legal Power – Herb Michel . . .Inside Front Cover
Court Reporters
Jonnell Agnew & Associates . . . . . . . . . . . . . . . . . . .59
Defense Medical Exam Observation
Advantage Representatives . . . . . . . . . . . . . . . . . . . .52
Executive Health Services . . . . . . . . . . . . . . . . . . . . . .68
Expert Witnesses - Medical
American Medical Forensic Specialists . . . . . . . . . . .49
Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . .78
Luckett, Karen – Injury & Disability Expert . . . . . . . . .78
Shorr, Arthur & Associates . . . . . . . . . . . . . . . . . . . . .83
Expert Witnesses - Technical & Damages
AR Tech (Construction/Accident Recon) . . . . . . . . . .55
Balian & Associates (Retail Industry) . . . . . . . . . . . . .48
Douglas Field & Test Engineering (Accident Recon) .54
Feldman, Phillip Law Office (Legal Mal) . . . . . . . . . .68
Overturf, Duane . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
Phillips, Fractor & Gorman (Economists) . . . . . . . . . .77
Financial Services
Calderon Settlements Group . . . . . . . . . . . . . . . . . . .82
California Attorney Lending . . . . . . . . . . . . . . . . . . . . .5
EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . . .14
Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Millennium Settlements . . . . . . . . . . . . . . . . . . . . . . . .26
Nationwide Litigation Funding . . . . . . . . . . . . . . . . . . .9
Ringler Associates (Structured Settlements) . . . . . . . .63
Summit Settlement Services (Structured Settlements) .24
Financial Services (cont.)
The James Street Group (Structured Settlements) . . .28
Graphics/Presentations/Video
Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .73
Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7
High Impact Graphics . . . . . . . . . . . . . . . . . . . . . . . . .41
Interactive Presentation Solutions, Inc . . . . . . . . . . . . .51
Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Legal Art Works . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
MediVisuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
Videotek West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
Information Service Providers
Michigan Information Transfer Services . . . . . . . . . . .79
Insurance Programs
IRIS Malpractice Insurance . . . . . . . . . . . . .Back Cover
The Matloff Company . . . . . . . . . . . . . . . . . . . . . . . .53
Investigators
Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .30
Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Legal Nurse Consultants
Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
Litigation Support
Court Call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80
Medical & Dental Service Providers
Anthony G. Rodas, M.D., Inc . . . . . . . . . . . . . . . . . . .19
Cornerstone Medical Group . . . . . . . . . . . . . . . . . . .64
Hospitality Health Center . . . . . . . . . . . . . . . . . . . . . .35
ima Sleep Disorder Center . . . . . . . . . . . . . . . . . . . . .81
Institute for Hand & Microsurgery . . . . . . . . . . . . . . .40
Noriega Chiropractic . . . . . . . . . . . . . . . . . . . . . . . . .65
Organizations
CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Trial Consultants
Act of Communication . . . . . . . . . . . . . . . . . . . . . . . . .76
MAKING A SETTLEMENT LAST A LIFETIME
Irene Calderon
Structured Settlement Specialist
“I am committed to making a difference in the lives
of injured people by providing them with a renewed sense
of security using periodic payments.”
The Calderon Settlements Group
www.irenecalderon.com
[email protected]
CA Insurance License #0B54499
PLAINTIFF
MARCH 2009
Affiliated with Millennium Settlements, Inc.
Class Actions
Personal Injuries
Consumer Attorneys Association of LA
800 West Sixth Street,#700
(213) 487-1212 www.caala.org
Consumer Attorneys
Association
of Los Angeles
New Lawyers Committee
Locations are TBD, 6:00 pm
Mar 10, Apr 14, May 19
Orange County Trial Lawyers Assn.
March 7, 2009
Trial Lawyer Skills for the New Attorney
8:00am - 5:00pm
Omni Los Angeles Hotel
251 S. Olive St.
Downtown Los Angeles
March 9. 2009
New Lawyers Mixer
6:00pm - 8:00pm
X bar located in the Hyatt Regency Century
Plaza Hotel
2025 Avenue of the Stars
Century City
April 11, 2009
Master Speaker Series: Eric Oliver
8:00am - 1:00pm
Omni Los Angeles Hotel
251 S. Olive St.
Downtown Los Angeles
September 3-6, 2009
Las Vegas Convention
Board & Committee Meetings
Board of Governors – CAALA Offices
Downtown Los Angeles, 6:00 pm
Mar. 19, Apr. 16, May 21
Executive Committee – CAALA Offices
Mar. 5, Apr. 2, May 7
Education Committee – CAALA Offices
Mar. 19, Apr. 16, May 21
See CAALA Web site for locations
6:00 pm
Mar. 26, Apr. 23, May 28
25602 Alicia Parkway, #403
Laguna Hills, CA 92653
(949) 916-9577
www.octla.org
March 26, 2009
Hot Topics for the Court of Appeal
6:00pm - 8:30pm
RSVP By 3/24/2009
Tustin Ranch Golf Club
12242 Tustin Ranch Rd
Tustin
April 28, 2009
Lobby Day '09
8:00am - 7:30pm
Sheraton Grand Hotel
Sacramento
April 30, 2009
Practice Workshop in Voir Dire
6:00pm - 8:30pm
RSVP By 4/28/2009
Tustin
May 28, 2009
What Can Lawyers Learn From Actors?
Persuasive Storytelling!
6:00pm - 8:30pm
Tustin
September 24, 2009
New Challenges in Real Estate Foreclosures &
Business Litigation
6:00pm - 8:00pm
12442 Tustin Ranch Rd, Tustin
...
. . . OR DEF
EXPERT
WITNESSES
ENSE
CORPORATE NEGLIGENCE
TESTIFYING EXPERTS
Hospital Administration
Arthur Shorr, M.B.A., FACHE
Daniel Herlinger, M.B.A., FACHE
Kenneth Westbrook, M.B.A.
Norman Andrews, R.N., M.B.A., FACHE
Psychiatric Facilities
Gerald Sweet Ph.D
David Sack M.D.
Nursing Administration
Bonnie Siler, R.N., M.A.
Nursing Homes, Assisted Living
Paul Boyar, M.B.A.
Michele Lentz, R.N., A.P.N.
Home Health Agencies
Deborah Roberts R.N.
Operating Room
Dorothy Pollock, R.N., C.N.O.R.
· Community Standards
· Patient Rights
· Physician Credentialing
· Policies & Procedures
· Nursing Negligence
· Regulatory Compliance
· Environment of Care
· Patient Safety
· Bylaws & Governance
· JCAHO Standards
Call for Courtesy
Consultation
800.530.5728
A Subsidiary of
Arthur S. Shorr
& Associates, Inc.
Employment Cases
Attorneys Fees
Punitive Damage Cases
1851 East First Street, Suite 900
Santa Ana, CA 92705
Direct: (714) 619-9366
Fax: (714) 619-9365
Coming in Future Issues
APRIL ISSUE:
MAY ISSUE:
Products Liability
Employment Law
For information concerning editorial contributions to these issues, please contact
[email protected]
www.HospitalExperts.com
MARCH 2009
The
Practical Practitioner
Bill Daniels
Money falling through the cracks
Consider ordering your documents in electronic format
Now, whenever someone points out a
way for me to save money on case costs
without losing efficiency, I’m interested. It
just so happened that we had some medical record subpoenas in the same case
from the defense, and my assistant asked
me if I wanted to order copies. “See if
they have .pdf,” I told her. She checked
and lo and behold, here’s what we found.
12¢ a page or 40¢ a page – you choose
As .pdf ’s, the copy service would
charge us $.11 to $.12 per page. To have
the medical records delivered in hard
copy, they would charge $.40 per page.
Yikes!
Now, I know that the cost of copying
on my trusty Xerox machine is about 11/2 pennies per page if you exclude the
monthly lease cost. So, by simply ordering medical records in .pdf format and
then printing them out as needed, I figure I am saving myself close to 75% of
the cost of obtaining records.
This might not be a big deal in a
small PI case or other simple matters,
but in the kind of cases I work on, which
tend to be catastrophic, we often wind up
ordering many thousands of pages of
records, all of which are reviewed and
most of which, following the initial
review, never see the light of day again.
With a .pdf, that all changes. Not
only am I saving myself the cost of copying, but I don’t need to pay for rental on
the physical space to keep the file cabinet
that stores the records during the course
of the case. At the end of the action, I
don’t have to pay the storage company to
keep the hard copy for the three to five
years my malpractice carrier prefers.
Even better, before I discovered this
little money-saving way of handling
records, the way we handled our medical
records flow was typically: order em, get
em, make working copies, organize working copies into books, then store the originals and working copies in a drawer
somewhere. I have interviewed paralegals
for potential employment and discovered
that there are folks who believe that manually handling records qualifies as not just
an important job skill, but one that justifies a premium wage. For me, it’s just
overhead that I’d prefer to reduce if I can.
I feel comfortable with a laptop computer and a large hard drive for managing my documents. I have a Mac Book
Pro with a 17-inch screen that allows me
to open multiple documents at a time
and work with them side by side. I use
Adobe Acrobat Professional which allows
me to manipulate .pdf files much in the
same way that I manipulate paper.
Doing things electronically did take
some getting used to, but the effort has
been worth it, since it saves both time
and expense. Plus, now I keep everything
in one or two places versus three or four,
so it’s much easier to find things even as
the file grows.
In my birth injury case, I am ordering all the medical records as .pdfs and
my co-counsel is going to be pleasantly
surprised when our multiple thousands
of dollars in records copying costs drops
by 75%. Me, I’m just happy to have a
practice tip I can share with my friends,
though I’ll take the cost savings just the
same.
My good friend, John Burge, was
going through some medical records in a
birth injury case I am litigating. I had
asked him to take a look at the records to
see if I could get an estimate on having
them reviewed by an obstetrical nurse for
organization and translation. (There are
a bunch of people who do this work.
John is with BMC Group. There is no
shortage of vendors in this area, and several of them advertise in this magazine.)
While he was looking at the records,
John asked me if I had them in .pdf format by any chance. Now, in case you’re
not familiar, “.pdf ” is shorthand for
Adobe’s portable document format,
which allows you to read and manipulate
documents on personal computers in all
sorts of interesting ways. I knew exactly
what John was talking about since, in
complex litigation, we commonly ship
information, pleadings and whatnot by
electronic mail to save the cost of couriers and the U.S. Postal Service.
“I don’t,” I told John. He was rifling
through one of the records and making
conversation as he reviewed. “Well, it’s
something you can ask for. Most of the
copy services scan the original documents
and convert them to .pdf anyway,” he
said. “If you order the .pdf instead of the
hard copy, it’s usually less expensive too.”
MARCH 2009
automobile defects
aviation disasters
brain injuries
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class actions
cruise ship injuries
mass torts
personal injuries
Outstanding Joint Venture and
Referral Opportunities
pharmaceutical torts
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Attorneys team up with Panish, Shea & Boyle when they
want to achieve the best possible results for their clients.
Our track record, resources and trial abilities will maximize
the value of your cases and greatly benefit your clients. We
work on cases throughout California and the U.S.
Our successes include:
The largest personal injury/products
liability verdict in u.s. history
The largest personal injury verdict in
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and county of San Francisco
Over 50 seven-figure verdicts and settlements
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toll free: (866) 992-1700
Los Angeles: (310) 477-1700
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www.psblaw.com
you’ll feel confident knowing the
IRIS Malpractice Hotline
is waiting for you.
At Interstate Risk Insurance Services, we specialize in underwriting coverage for
small- to medium-sized law firms.
• The added protection of a California admitted “A” rated carrier.
• The convenience of a hotline for both malpractice counseling and claims handling.
• The satisfaction of knowing you paid 5% less because you belong to CAALA.
• NOW OFFERING HIGHER POLICY LIMIT OPTIONS.
Contact your broker or Interstate Risk Insurance Services
should you need the names of approved brokers in your area:
Dirk Kruidenier 888.362.IRIS (4747) Ext. 2015
CA Lic. #0D79607
We are your professional liability specialists.
The CAALA-sponsored Lawyers Malpractice Coverage
www.iris-ins.com

- Advocate Magazine

Transcription

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