NOVEMBER 2002 for www - Los Angeles County Bar Association

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Semiannual Guide toExpert Witnesses
LosAngelesLawyer
NOVEMBER 2002, VOL.25, NO.8 / $3.00
Los Angeles lawyer
Diane Kimberlin
explores the
controversy over
class actions in
wage and hour
disputes
page 22
Class
Struggles
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page 22
Contents
Los Angeles Lawyer
departments
The Magazine of the
13 Practice Tips
The California Supreme Court’s
new test for commercial speech
By Jonathan A. Loeb and
Jeffrey A. Sklar
Los Angeles County
Bar Association
November 2002
Vol. 25, No. 8
17 Practice Tips
How misuse of the UTSA can
be countered
By Jeffrey W. Kramer
cover
75 Computer Counselor
Protecting your privacy on the
Internet
By Carole Levitt and Mark Rosch
77 By the Book
A Trial by Jury
Reviewed by Angela J. Davis
columns
11 Barristers Tips
Making preparations for expert
witnesses
By Wendy L. Wilcox
84 Closing Argument
The promise of law analysis
technology
By Ty Tasker
Diane Kimberlin is a shareholder in the Los Angeles office
features
22 Class Struggles
The stakes are high as employers and employees battle over
certification of class actions in wage and hour disputes
By Diane Kimberlin
79
Classifieds
29 High Accountability
80
LACB Foundation
2001-2002 Fund Drive
Results
The Sarbanes-Oxley Act increases executive liability for
of Littler Mendelson, P.C.,
SEC filings by eliminating the need to establish actual
knowledge of wrongdoing
where she specializes in the
82
Index to Advertisers
By Dale H. Oliver and Joseph N. Akrotirianakis
representation of employers in
83
CLE Preview
Plus: Earn MCLE credit. MCLE Test No. 110,
sponsored by West, begins on page 32.
employment law matters. In
page 37
“Class Struggles,” she analyzes
37 Volatile Combinations
the legal rulings on the
The question of foreseeability is pivotal in determining the
certification of classes in wage
liability of chemical companies for the tortious acts of
third-party users of their products
and hour litigation. Her article
By Randolph C. Visser, John J. McAleese III,
begins on page 22.
and Alison Chase Mann
Cover photo: Tom Keller
44 Special Section
Semiannual Guide to Expert Witnesses
LosAngelesLawyer
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4 LOS ANGELES LAWYER / NOVEMBER 2002
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from
the
chair
By Steven Hecht
ter prepare us all for the future inevitable
ooking back at one’s past writings and
strikes against our country that the governthinking ahead about new ones risks
ment has assured us will occur. Of course
embarrassment in both directions. But
enacting a declaration of war raises the
now that I am writing From the Chair columns
“against whom” question. Answering that
for a second year, I decided to review my
question will help us all understand unequivcolumns from my year as the 2001-02 chair.
ocally what we face and may help us figure out
Last year I shared my thoughts with our readwhat we can do. The process
ers about the defining event of
Steven Hecht
would let lawyers who draft resSeptember 11 and the ear thpractices transolutions regarding the war use
quake of failures in the business
actional business
their skills to clarify the nature of
world. Both events continue to
law in Century City.
this war for all of us. Quite careaffect all of us, as concerned and
He is the chair pro
fully, we must consider if we are
active citizens and as practicing
tem of the 2002-03
at war with a concept—terrorlawyers.
Los Angeles Lawyer
ism—or with actual terrorists.
When we hear sirens as we
Editorial Board.
Also, we must address how we
are driving and pull over to the
can identify terrorists before
side, watching the fire engines
they identify themselves to us
racing past, we behold American
through their actions. How much easier it is
flags dancing in the air off the backs of the
when another nation is the enemy. Declaring
trucks. At those moments we recall past
war on Iraq will be conceptually easy comtragedy even as our minds conjure up
pared to defining our terrorist enemies in
thoughts of the next horrific event. We then
the first war of the twenty-first century.
silently ask ourselves if there is anything we
I wrote last February about al Qaeda’s
can do. As I asked in October 2001, “What are
arrogance of audacity and the possibility of
our individual jobs in this new war?”
the United States’ arrogance of optimism.
Last November I wondered, “With whom
Since then, there is little obvious optimism,
are we at war?” Now, although our country is
but a quick victory over Iraq may lead to an
at war, we can ask if we as individual citizens
arrogance of achievement as the countr y
are acting as if we are truly in a state of war.
again wins a battle.
My feeling is that most Americans feel more
Last April, I wrote about the Olympian
as if we are in a state of watching, worrying,
corporate failures and the possibility that the
and waiting for the next sickening day of
legal profession would suffer collectively as
tragedy.
attention shifted from the accountants to the
For many of us it is difficult to see the
lawyers involved in the scandals. The corpoeffect of the war. Most of us have never been
rate executives are facing the spotlight first,
asked to do anything except to carry on as
and with a few tacky “perp walks” have again
usual. The administration repeatedly prokept the focus off the legal profession. The
claims that we are now engaged in the first
war of the twenty-first century, with the impli- most recent financial shenanigans were a bit
too much for me to have imagined. Accation that this new type of war against terror,
counting profession scandals now seem lessterrorism, and terrorists is so different that
ened when contrasted with the scandals of
acting vaguely vigilant, trusting in the procorporate governance. Reform has arrived
fessionals, and waiting in longer lines at airwith a gigantic new federal law, the Sarbanesports is all that needs to be done. But crediOxley Act of 2002, amid promises of renewed
bility, trust, and support for the government
enforcement action and more eager scrutiny
will vanish quickly after the next tragic event
of the financial world by the press. As for the
unless the public is more invested in the prostarnishing of the legal profession, we will
ecution of this new type of war. To borrow an
see.
■
old phrase from the Reagan administration,
what is needed is some form of constructive
engagement.
The Congress of the United States should
enact a formal declaration of war. This will bet-
L
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W-106553/9-02
barristers
tips
By Wendy L. Wilcox
Making Preparations for Expert Witnesses
The outcome of litigation often depends on
expert testimony and how it is handled
ince the introduction of the Discovery Act in 1957, an entire complex statute—namely, California Code of Civil Procedure Section
2034—has been devoted solely to expert discovery and testimony. The complexity of this statute may be appreciated by comparing
it, for example, to Code of Civil Procedure Section 2025, which deals
with percipient witnesses. The requirements for percipient witnesses
are far less detailed than those for experts described in Section
2034(f)(2). Clearly, the importance of experts in litigation cannot be
overemphasized, and the ability of counsel to understand the expert’s
expected testimony is an essential part of trial preparation.1
Courts have persistently stressed that litigation is not a game and
that it is in the public interest that each party know as much as possible about the other’s case in order to give each a fair turn at trial and
maximize the chance of settlement.2 Nevertheless, litigation remains
adversarial, and the deposition of an opposing expert—which is usually quite expensive—is the only way for a party to know what that
expert will opine at trial. As a result, it is essential for the attorney who
is deposing the expert to consider several factors: the strengths and
weaknesses of both sides of the case, the technical aspects of what the
expert will cover, the points to cover on cross-examination at trial, the
issues that the client’s expert will cover to rebut or impeach, and the
proper settlement position—which may depend in great part upon the
testimony of the experts for both sides.
The great influence that expert testimony can have on litigation
planning, litigation itself, and settlement is implicit in Section 2034(f).
The first part of this section details the need for and content of the
expert witness declaration, in which the nature of the expected testimony of the expert must be described. The second part concerns
the deposition of the expert, during which the expert must state all
the opinions he or she is expected to give at trial. Section 2034(f)(2)(D)
further specifies that the expert witness declaration include a “representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the
specific testimony, including any opinion and its basis that the expert
is expected to give at trial.”3
S
Surprises in Court
If the expert attempts to offer a new opinion at trial, the only
effective remedy for the surprised party is to ask the court to exclude
those opinions that the expert did not disclose in deposition.4 This
penalty is prescribed by the statute, and it is the only one that will
accomplish justice. The party calling the expert can avoid this sanction by making sure that the expert discloses all opinions he or she
may give at trial. Although an attorney typically does not like to disclose any part of the case to the other side, the courts and the legis-
lature have made it clear that pretrial disclosure of all the opinions that
the expert intends to offer is required. Failure to do so will likely jeopardize the client’s case.
With this in mind, counsel should keep certain pretrial and posttrial requirements and recommendations in mind when preparing, and
preparing for, expert witnesses. First, a party’s demand for exchange
of expert information must be served 10 days after the initial trial date
has been set or 70 days before that trial date, whichever is closer to
the trial date.5 Second, the parties to a suit must simultaneously
serve their respective expert information 50 days before the initial trial
date or 20 days after receipt of a party’s demand, whichever is later.6
A party may supplement its expert designation 20 days after the two
sides have exchanged expert information.7 A party should properly
prepare the expert witness declaration to include the subject areas that
the expert intends to cover at trial. The declaration should be broad
enough to cover all opinions that the expert may express.8
Third, a party should notice the opposing expert’s deposition at
least 15 days before the initial trial date.9 In the notice, the party
should make a demand for the production of documents at the deposition. This demand should at least request the following: 1) the
expert’s credentials—typically, the expert’s curriculum vitae; 2) the
expert’s complete file regarding the action; 3) all documents relating
to any written or oral communications between the expert and any
party to the action; 4) all documents relating to the expert’s compensation regarding the action; 5) all deposition transcripts, trial transcripts, declarations, or record of testimony by the expert in any
other similar matter, including but not limited to a list of the cases in
which the expert testified; 6) all books,
treatises, articles, essays, or other documents written by the expert regarding
the subject matter of the action; and 7) all
documents evidencing how much time
the expert expended on the matter.
At the Deposition
At the opposing expert’s deposition,
counsel should mark the expert’s curriculum vitae and witness declaration as
exhibits to the exper t’s deposition.
Additionally, counsel should take the
time to read into the record the section
in the declaration regarding the subject
areas of the testimony that the expert is
expected to offer. This is done by carefully paraphrasing the statements in this
Wendy L. Wilcox
practices with
Tressler, Soderstrom,
Maloney & Priess in
Century City.
LOS ANGELES LAWYER / NOVEMBER 2002 11
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The Winning EdgeTM
section. Ask the expert for his or her assignment in the matter and for all the written and
oral communications regarding this assignment. Ask the expert if he or she has testified
to everything regarding that subject. Also
ensure that the expert will notify opposing
counsel if he or she arrives at any new opinions before trial. Finally, ask the expert how
much he or she has been paid and what if any
future work the expert intends to perform on
the matter.
The deadline for expert discovery motions
is 10 days before the initial trial date. 10
Specifically, pursuant to Section 2034(j), on
objection of any party who complies with
Section 2034(f), the court shall exclude from
evidence the expert opinion of a witness who
is offered by a party who has unreasonably
failed to make the expert available for deposition.11 The court also has the power to
impose monetary, terminating, and evidentiary sanctions against the party and the party’s counsel who has unreasonably failed to
make the expert available to the opposing
side for deposition.12
If the expert forms any new opinions
between the time of deposition and trial, counsel should immediately make the expert available for a second deposition. If an agreement
with opposing counsel cannot be reached
quickly, the party should seek leave to amend
the expert witness declaration under Section
2034(k). If counsel wants the expert to offer
an opinion at trial that the expert did not
offer in deposition, counsel should make an
offer of proof as to what the expert will testify
to if permitted to do so. Such an offer of proof
is essential to the preservation of the point on
appeal.13
■
1
HOGAN & WEBSTER, CAL. CIVIL DISCOVERY §10.1, at
525 (1997).
2
See, e.g., Williams v. Volkswagen Aktiengesellschaft,
180 Cal. App. 3d 1244, 1255, 226 Cal. Rptr. 306 (1986)
(stating that the Discovery Act was enacted in order to
avoid turning litigation into “a game of blindman’s
bluff”).
3
Id.
4
CODE CIV. PROC. §2034(j)(4).
5
CODE CIV. PROC. §2034(b).
6
CODE CIV. PROC. §2034(c), (f).
7
CODE CIV. PROC. §2034(h).
8
CODE CIV. PROC. §2034(f).
9
CODE CIV. PROC. §2024(d).
10
Id.
11
CODE CIV. PROC. §2034(j)(4).
12
CODE CIV. PROC. §§2023, 2025(j)(3), 2034.
13
Ransom v. Ransom, 215 Cal. App. 2d 258, 264, 30 Cal.
Rptr. 53 (1963):
The requirement of the offer of proof serves two
practical purposes. First, it permits the trial
court to reconsider and correct an erroneous
exclusionary ruling in the light of all the facts.
Second, it permits the appellate court to determine if the ruling was erroneous and, if so,
whether it was sufficiently prejudicial to justify
a reversal of the judgment.…
practice
tips
By Jonathan A. Loeb and Jeffrey A. Sklar
The California Supreme Court’s
New Test for Commercial Speech
When advising
on demurrer, now returns to the
trial court for a determination of
business clients,
whether Nike’s public statements
were false or otherwise violated
the safest option
California’s broad UCL and False
Advertising Law.2
may be to
Noncommercial speech traditionally is considered political
suggest silence
speech and is protected to the
fullest extent by the U.S. and
California Constitutions.3 Thus,
n May 2, 2002, the Calif- content-based regulations of nonornia Supreme Court sent commercial speech are subject
a shock wave through cor- to strict scrutiny, which “requires
porate boardrooms and public that the regulation be narrowly
relations firms with its decision tailored…to promote a comin Kasky v. Nike, Inc.1 The court pelling government interest.”4
ruled that Nike’s public state- Content-neutral regulations of
ments regarding its manufactur- noncommercial speech, such as
ing processes—which were laws regulating the time, place, or
made in the wake of class action manner of speech, are subject to
claims facing clothiers over intermediate scr utiny, which
alleged sweatshop conditions— comprises three factors for the
could be regulated under Cal- court to review:
ifornia’s Unfair Competition Law 1) Is the regulation of speech con(UCL) and False Adver tising tent-neutral?
Law. Nike had convinced the trial 2) Is the regulation narrowly taicourt, as well as the intermediate lored to serve a significant govappellate cour t,
ernment interest?
Jonathan A. Loeb is a
that its public state3) Does the regupartner in Alschuler
ments regarding its
lation leave open
Grossman Stein &
subcontractors loalternative chanKahan LLP, where he
cated in Vietnam,
nels of communispecializes in complex
China, and Indocation?5
commercial and
nesia were nonUnder the U.S.
intellectual property
commercial speech
and California Conlitigation. Jeffrey A.
and, therefore, any
stitutions, commerSklar is an associate
regulation of the
cial speech enjoys
in the firm’s transstatements would
far less protection
actional department.
be subject to the
than does noncomhighest level of
mercial speech.
scrutiny. In reversThe U.S. Supreme
ing the lower courts, the state Court enunciated the test for regsupreme court effectively held ulating commercial speech in
that Nike’s statements regarding Central Hudson Gas & Electric v.
its overseas labor practices were Public Service Commission:
only entitled to the protection
At the outset, we must
granted to advertisements. The
determine whether the
case, which had been dismissed
expression is protected by
RICHARD EWING
O
the First Amendment. For
commercial speech to
come within that provision, it at least must concern lawful activity and not
be misleading. Next, we
ask whether the asserted
governmental interest is
substantial. If both inquiries yield positive
answers, we must determine whether the regulation directly advances the
gover nmental interest
asserted, and whether it
is not more extensive than
necessar y to ser ve that
interest.6
Thus, the First Amendment
protects lawful and nonmisleading commercial speech from regulations that fail to provide a reasonable connection between the
asserted governmental interest
and the means used to achieve it.
Although false or misleading noncommercial statements are often
tolerated “‘to eliminate the risk
of undue self-censorship and the
suppression of truthful material’
and thereby give freedom of
expression the ‘breathing space’
it needs to survive,”7 commercial
speech does not receive this benefit because the truth of commercial speech is more easily ver-
ified, and because commercial speakers are
motivated by profit and thus are less susceptible to “chilling.”8
Because commercial speech receives less
protection than noncommercial speech,
numerous laws regulating false and misleading commercial statements pass constitutional muster. Specifically at issue in Kasky
were California’s UCL9 and False Advertising
Law.10
Unfair Competition and False
Advertising
The UCL defines unfair competition as
“any unlawful, unfair or fraudulent business
act or practice and unfair, deceptive, untrue
or misleading advertising and any act prohibited by [the False Advertising Law].”11
According to the Kasky court, “The UCL’s
purpose is to protect both consumers and
competitors by promoting fair competition
in commercial markets for goods and services.”12 In achieving this goal, the UCL casts
a wide net, permitting violations of other laws
to be treated as violations of the UCL (which
are independently actionable).13
California’s False Advertising Law makes
it unlawful for:
[A]ny person, firm, corporation or association, or any employee thereof with
intent directly or indirectly to dispose
of real or personal property or to perform services…or to induce the public to enter into any obligation relating thereto, to make or disseminate…
before the public in this state,…in any
newspaper or other publication…or in
any other manner or means whatever…any statement, concerning that
real or personal property or those services…which is untrue or misleading,
and which is known, or which by the
exercise of reasonable care should be
known, to be untrue or misleading.…14
The False Advertising Law has several
elements in common with the UCL. First,
both laws regulate not only false speech “but
also advertising which although true, is either
actually misleading or which has a capacity,
likelihood or tendency to deceive or confuse
the public.”15 Second, a private citizen may
bring an action under the False Advertising
Law on the citizen’s own behalf or on behalf
of the general public.16 Finally, a violation of the
False Advertising Law is treated as an independent violation of the UCL.17 A violation
of the False Advertising Law is a misdemeanor
punishable by up to six months in county jail,
a fine of up to $2,500, or both.18 Therefore,
under California law, a business that makes a
true statement it reasonably should have
known might be misleading to the public violates the False Advertising Law and the UCL.
In Kasky, plaintiff Marc Kasky alleged that
Nike and several of its officers had committed actual fraud and deceit by making misleading and untrue statements on behalf of
the company in various forms, including press
releases and letters to editors of major newspapers. Kasky alleged that the defendants
were liable under the UCL because their
actions constituted unfair or fraudulent business practices.19 Because any person acting
for the interests of the “general public” may
bring an action for restitution or injunctive
relief under the UCL,20 Kasky was not required to allege any injury to himself.21
The statements that Kasky referred to in
his suit were ones made by Nike regarding its
practices in press releases, in letters to newspapers, in a letter to university presidents
and athletic directors, and in other documents distributed for public relations purposes. 22 In par ticular, press releases
responded to sweatshop allegations,
addressed women’s issues, stressed the company’s code of conduct, and broadly denied
exploitation of underage workers. 23 In a
lengthy press release, titled “Nike Production
Primer,” Nike answered a series of allegations with detailed information and footnoted
sources.24 Another release drew attention to
a repor t based upon an investigation by
Andrew Young, former U.S. ambassador to
the United Nations, that found no evidence of
illegal or unsafe working conditions at Nike
factories in China, Vietnam, and Indonesia.25
The court of appeal’s opinion details how
Nike was beset in 1996 and 1997 with a series
of reports on working conditions in its factories that contrasted sharply with the favorable
report by Young. For instance, an Australian
organization published a highly critical case
study on Nike’s Indonesian factories, and the
Hong Kong Christian Industrial Committee
released an extensive documented study of
several Chinese factories, including three
used by Nike, which described 11- to 12-hour
workdays, compulsory overtime, violation of
minimum wage laws, exposure to dangerous
levels of dust and toxic fumes, and employment of workers under the age of 16.26
Bolger and the Kasky Analysis
The U.S. Supreme Court has held that
commercial speech, at its core, is “speech
proposing a commercial transaction.”27 From
this premise, the Court in Bolger v. Youngs
Drug Products Corporation28 identified three
factors that provide “strong support” that a
statement is commercial speech:
1) The speech is in advertising format.
2) The speech refers to products or services.
3) The speaker has a commercial motivation.29
At least two of these factors should be
present in order to support a finding of com-
mercial speech.30 Further, the Court has held
that speech may not be immunized from
being commercial speech simply because it
includes political messages.31
Despite the well-settled Bolger factors, the
California Supreme Court in Kasky has articulated a new and somewhat ambiguous “limited-purpose test” for deciding “whether particular speech may be subjected to laws aimed
at preventing false advertising or other forms
of commercial deception.”32 This test consists of three elements:
1) The speaker is someone likely to be
engaged in commerce.
2) The intended audience is likely to be actual
or potential buyers, customers, or persons
likely to repeat the message or influence buyers or customers.
3) The content of the message is commercial
in character.33
In defense of this new analytical framework, the Kasky court reasoned that the U.S.
Supreme Court has never announced an “allpurpose test” to distinguish commercial and
noncommercial speech.34 The court’s scrutiny
of the High Court’s commercial speech decisions revealed that the precise boundaries of
commercial speech are difficult to define, and
bright lines are not easily drawn.35 The court
also noted Justice John Paul Stevens’s admonition that efforts to describe the boundaries
of commercial speech should relate to the
regulatory objective of limiting commercial
speech’s potential to mislead.36 In light of
these acknowledged challenges and principles, the Kasky test limits itself to the question
of whether particular speech is subject to regulations of deceptive commercial practices.
The Kasky court described the contours of
the three prongs of its test and attempted to
explain how their focus on the speaker,
intended audience, and content of the message is consistent with the Bolger factors and
other U.S. Supreme Court holdings.37 The
commercial speaker and intended audience
prongs articulated by Kasky were derived
from the speaker-audience transactions considered implicit in Bolger’s focus on economically motivated speakers and advertising
format.38 Further, Kasky’s departure from a
strict adherence to Bolger’s advertising format
requirement was justified by noting Bolger’s
broad warning that each of the factors or
characteristics set forth by Bolger “would
[not] always be necessary to the characterization of speech as commercial.”39 Finally,
commercial content was described as a “broad
definition” of Bolger’s product references factor.40 This expansion of the Bolger factor was
deemed necessary in order to adequately
characterize the broad spectrum of statements made and topics addressed in modern image- and sales-enhancing public rela-
tions campaigns. 41 Yet despite the Kasky
court’s efforts to reconcile its holding with
Bolger, when a practitioner attempts to apply
the Kasky test instead of the Bolger factors, the
result is clear: With Kasky, there is a new
and potentially unconstitutional test in
California for commercial speech.
In Bolger, the factors determining commercial speech are fairly discrete, particularly with reference to products and services;
in Kasky, the factors appear to be more inclusive. One effect of Bolger is the possibility
that some corporate speech may be noncommercial. The effect of Kasky, however,
appears to be that practically all corporate
speech may be construed as commercial.
For example, in the case of a press release
issued by a company, Bolger requires that
three factors be applied to determine whether
the press release is commercial speech: advertising format, product references, and commercial motivation. While most corporations
admittedly act by commercial motivation, at
least one of the two remaining factors should
be present in order for the company’s statement to be defined as commercial speech.
The Kasky test stands in stark contrast.
First, Kasky asks whether the company is
likely to be engaged in commerce. The great
majority of corporations are engaged in some
form of commerce, so this prong is met by virtually all corporate speech. Second, Kasky
asks whether the intended audience is likely
to be actual or potential buyers of the company’s products or services, or “persons (such
as reporters or reviewers) likely to repeat the
message to or otherwise influence actual or
potential buyers or customers.”42 Essentially
all businesses will satisfy this sweeping prong
by making any public statement. Indeed, in
this information age, it is difficult to imagine
how any company could make any public
statement that would not be covered and disseminated by countless media outlets and
thus reach actual or potential buyers, whether
a company intends so or not.
Because the first two prongs will almost
always be met, the company’s statement will
be deemed commercial speech in California
so long as the final prong is satisfied: whether
the content of its speech is commercial. This
factor is framed broadly by the Kasky court
and includes not only product references as
discussed in the Bolger test but also references to any business operations for the purpose of promoting sales or commercial transactions. According to the Kasky court, product
references include “statements about the
manner in which the products are manufactured, distributed, or sold, about repair or
warranty services that the seller provides to
purchasers of the product, or about the identity or qualifications of persons who manu16 LOS ANGELES LAWYER / NOVEMBER 2002
facture, distribute, sell, service, or endorse the
[products].”43 Similarly, references to services include statements about “the education,
experience, and qualifications of the persons
providing or endorsing the services.”44
In response to this prong, Justice Janice
Brown stated in her dissenting opinion in
Kasky that “business operations, products,
or services may be public issues. For example, a corporation’s business operations may
be the subject of public debate in the media.
These operations may even be a political
issue as organizations, such as state, local or
student governments, propose and pass resolutions condemning certain business practices. Under these circumstances, the corporation’s business operations undoubtedly
become a matter of public concern, and
speech about these operations merits the full
protection of the First Amendment.”45
Further, a corporation also is in the business of promoting its public image, which
will likely be enhanced by public statements
that it makes regardless of the issue being
addressed. As a result, under the Kasky court’s
broad view of commercial content, it is hard
to imagine how a company could engage in
meaningful public debate on any issue,
whether or not the issue directly affects its
business, without the company’s statement
being deemed commercial.46
Advising Business Clients
Protection of free speech under the
California Constitution is at least as broad as
under the U.S. Constitution.47 Because Kasky
appears to allow less protection for commercial speech than is allowed under Bolger, the
validity of Kasky is questionable. However,
unless and until the U.S. Supreme Court
grants certiorari to hear the Kasky case, practitioners have a burden of uncertainty to bear.
Therefore, when advising a business client
on how to publicly address certain issues
that the client considers noncommercial, practitioners should alert the client that the safest
choice is silence. While this is the textbook
example of a chilling effect, a business client
runs a substantial risk in California if it makes
a statement that is mistakenly false, or true
but misleading.
If silence is not an option, the business
client must make statements with the utmost
care and diligence to verify their truth, accuracy, and completeness. In addition, thoroughly documenting the efforts taken by the
client to verify the truth and veracity of a
statement may go a long way toward proving
that a reasonable speaker could not have
known about a false or misleading representation later found in the client’s statement.
Ideally, there should be no reference to the
business operations, products, or services of
the client in the statement.
The lesson of Kasky is that practitioners
must counsel their business clients to maximize the likelihood that their public statements are characterized as noncommercial
rather than commercial speech. In post-Kasky
California, only the purest political speech by
a business will be deemed noncommercial. ■
1
Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002), rev’g and
remanding 79 Cal. App. 4th 165 (2000).
2
David R. Shraga provided editorial assistance for this
article.
3
U.S. CONST. amend. I; CAL. CONST. art. I, §2(a).
4
Kasky, 27 Cal. 4th at 952 (citing United States v.
Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000)).
5
Ward v. Rock Against Racism, 491 U.S. 781 (1989).
6
Central Hudson Gas & Elec. v. Public Serv. Comm’n,
447 U.S. 557, 566 (1980).
7
Kasky, 27 Cal. 4th at 953 (quoting Herbert v. Lando,
441 U.S. 153, 172 (1979); New York Times v. Sullivan,
376 U.S. 254, 272 (1964)).
8
Id. at 955.
9
BUS. & PROF. CODE §§17200 et seq.
10
BUS. & PROF. CODE §17500.
11
12
Kasky, 27 Cal. 4th at 949.
13
Id.
14
BUS. & PROF. CODE §17500 (emphasis added).
15
16
17
Kasky, 27 Cal. 4th at 950-51.
18
19
Id.
20
21
22
Id. at 947-48.
23
Kasky v. Nike, Inc., 79 Cal. App. 4th 165, 170 (2000),
rev’d and remanded, 27 Cal. 4th 939 (2002).
24
Id.
25
26
Kasky, 79 Cal. App. 4th at 169.
27
Kasky, 27 Cal. 4th at 956 (citing Central Hudson Gas
& Elec. v. Public Serv. Comm’n, 447 U.S. 557, 562
(1980)).
28
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
(1983).
29
Id. at 67.
30
Id. at 67 n.14.
31
Id. at 68.
32
Kasky v. Nike, Inc., 27 Cal. 4th 939, 960 (2002).
33
Id. at 960.
34
Id.
35
Id. at 958.
36
Id. (citing Rubin v. Coors Brewing Co., 514 U.S. 476,
494 (1995) (Stevens, J., concurring)).
37
Id. at 960-62.
38
Id. at 960.
39
Id. at 962 (citing Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 67 n.14 (1983)). The Kasky court also
supported this proposition by citing their most recent
decision on point: Leoni v. State Bar, 39 Cal. 3d 609
(1985). In Leoni, the supreme court characterized an
attorney’s mailings as commercial even though the
mailings were not in the form of an advertisement.
40
41
Id.
42
Id. at 960.
43
Id. at 961.
44
Id.
45
Id. at 984.
46
See id. at 961.
47
Id. at 958-59.
practice
tips
By Jeffrey W. Kramer
How Misuse of the UTSA Can Be
Countered
The Uniform Trade
The UTSA is a powerful tool
for businesses that seek to proSecrets Act should
tect their investment in valuable
competitive information. Unfornot be used for
tunately, it has also become a
weapon used by aggressive busianticompetitive
nesses bent on stifling legitimate
competition. The problem is
purposes
inherent in the act’s definition of
a trade secret, which when taken
at face value applies to practically
he laudable objective of the every kind of information that a
Uniform Trade Secrets business possesses. If informaAct1 is to codify the com- tion that is not published in a
mon law protection of confiden- trade publication or other wise
tial business information that has demonstrably known to most
competitive value. Information competitors is used in a business,
that is not protected or protectible the information presumably has
by patent, copyright, or trade- economic value to that business.
mark may be denied to others if And if the business employs at
the broadly worded requirements least some security measures—
of the UTSA are met. Under the computer password access, conUTSA, protectible information— fidentiality agreements, or even
whether it is a formula, pattern, locks on office doors—a possicompilation, program, device, ble trade secret is born.
The ease of stating at least a
method, technique, or process2—
must have some economic value prima facie case for a trade secret
from not being generally known and the development of sympato the public or to those to whom thetic California case law has
made the UTSA a
it would be ecoroute to anticomnomically useful.3
Jeffrey W. Kramer
petitive conduct
Additionally, the
practices business
that would otherinformation must
litigation with Troy &
wise contravene
be the subject of
Gould and was one
California public
reasonable efforts
of the counsel for
policy. California
to maintain its seone of the
law strongly favors
crecy.4 If business
defendants in PMC v.
vigorous competiinformation meets
Paul Winkler and
tion in the marketthese rather simple
PMC v. Kadisha.
place 6 —so much
criteria, anyone
who has possesso that, in contrast
sion or makes use
to the laws of many
of the information without con- states,7 California generally prosent may be enjoined from fur- hibits employers from enforcing
ther use and may be liable for covenants not to compete with
compensatory damages, unjust employees who leave.8 The UTSA
enrichment, a reasonable royalty, has in many ways undermined
exemplary damages, and attor- this procompetitive policy. An
ney’s fees.5
astute defense and judicial aware-
T
ness of the dangers can help to
ensure that the UTSA is not misused. How these dangers might
arise, and some strategies for
avoiding them, are impor tant
areas of concern for litigators.
Ways of Misapplication
The anticompetitive danger
of the UTSA often begins with
employment contracts and confidentiality agreements that have
an overbroad definition of trade
secrets. Employers often hope to
avoid California’s prohibition on
covenants not to compete by
defining every piece of information that an employee receives in
the course of employment as a
trade secret. A typical provision
states: “[F]inancial, personnel,
sales, scientific, technical and
other information regarding formulas, patterns, compilations,
programs, devices, methods,
techniques, operations, plans and
process…[constitute] the Employer’s ‘trade secrets.’”9
When an employee quits to
join or form a competing business, a foundation has been laid
for the charge that the employee
is using the former employer’s
trade secrets in the new employment. Trade secret law has been
employed in many jurisdictions to
enjoin former employees from
working for a competitor in cases
in which the “new employment
will inevitably lead [the employee] to rely on the [former
employer’s] trade secrets.”10 As
one commentator has observed,
“[U]sing principles of commercial morality, most…courts [other
than Califor nia’s] have been
inclined to protect trade secrets
over an employee’s freedom to
work for a direct competitor.”11
In 1999, a court of appeal in
California adopted this doctrine,
finding that the “inevitable disclosure rule is rooted in common
sense,” 12 but the Califor nia
Supreme Court ordered the opinion depublished. Recently, in
Schlage Lock Company v. Whyte,13
a Califor nia appellate cour t
rejected the “inevitable disclosure” doctrine, finding that it is
contrar y to California law and
policy because it creates an afterthe-fact covenant not to compete,
restricting employee mobility.14
Strong public policy, expressed in a legislative prohibition of contracts in restraint of a
trade or profession,15 is an important reason that the inevitable disclosure doctrine historically has
not gained favor in California.
The Schlage decision, however,
notes that California public policy
also protects trade secrets. In
rejecting the inevitable disclosure
doctrine, Schlage does not regard
as dispositive California’s public
policy favoring employee mobility and instead relies on principles
of contract law. Namely, Schlage
holds that employees should not
be held to a restrictive employment covenant imposed “after the
employment contract is made and
[that] therefore alters the employment relationship without the
employee’s consent.”16
However, the extent to which
this rationale favoring employee
mobility will yield to trade secret
protections incorporated into
carefully drawn employment
agreements remains unclear—
even after Schlage. There was no
employment agreement with a
covenant not to compete in
Schlage. Yet the court noted that
“under the circumstances pre-
sented in this case, an employer might prevent disclosure of trade secrets through, for
example, an agreed-upon and reasonable nonsolicitation clause that is narrowly drafted
for the purpose of protecting trade secrets.”17
As a result, the UTSA may have renewed
potency in California to limit competition.
Often, plaintiffs use the allegation that
trade secrets have been misappropriated as
a springboard to other causes of action. For
example, California law defines “unfair competition” as “any unlawful, unfair or fraudulent
business act or practice.”18 Plaintiffs alleging
misappropriation of trade secrets invariably
allege unfair competition as well, citing the
misappropriation of trade secrets as the “unlawful” conduct engaged in by the defendant
competitor.
Often, plaintiffs invoke the business tort
of interference with prospective economic
advantage, which requires pleading and proof
that “the defendant not only knowingly interfered with plaintiffs’ expectancy, but engaged
in conduct that was wrongful by some legal
measure other than the fact of interference
itself.”19 The UTSA frequently supplies this
legal measure of wrongful conduct, with plaintiffs alleging that defendants used their knowledge of misappropriated trade secrets to
obtain business from plaintiffs’ customers.
Frequently these other causes of action cannot be pled without allegations of trade secret
misappropriation.
The trade secret lawsuit can be a devastating competitive weapon, particularly against
start-up or marginally financed smaller businesses. The charge is made that the departing employee or employees have taken their
former employer’s trade secrets and are using
them to compete in their new business. The
trade secrets may be described as customer
information, supplier information, manufacturing processes, financial information, or
any of these in combination. If the employees
have in their possession or take with them any
papers or electronic information relating to
their former employment, as many employees
do, a preliminary injunction against the use
of these materials and information derived
from them is a serious risk. If a preliminary
injunction—even of limited scope—issues, it
places the defendant business at a serious
competitive disadvantage. Even though the
scope of the injunction may be relatively
benign, the existence of such a court order
may discourage customers, lenders, and
investors from doing business with the defendant.
Crushing and intrusive discovery may be
the next order of business for the aggressive
trade secrets plaintiff. The discovery may be
designed to learn the customers, product
lines, processes, and finances of the defendant
business—all of which is valuable competitive
information.20 The cost of gathering and producing this information may be great, in terms
of attor ney’s fees, employee time, and
employee morale. Key employees of the
defendant business may spend their workdays preparing and sitting for depositions.
The trade secret claim, regardless of its ultimate merit, can force the defendant business
to yield sensitive business information to an
aggressive and hated competitor and hobble
the defendant business by distracting its
employees and straining its financial
resources.
Third-party discovery may be even more
destructive. Existing and potential investors,
lenders, and suppliers to the defendant business may all be targeted. The message that
this discovery conveys to the investors, subtly or directly, is that they may soon be defendants. Lenders will fear that their loans may
involve substantial risk. Suppliers will fear
that selling to the defendant may not be worth
the loss of goodwill to a larger client or the
expense of becoming involved in a lawsuit.
Trade secret litigation in California poses
a unique threat to investors in start-up businesses. In PMC v. Kadisha,21 the California
Court of Appeal articulated a new theory of
officer and director liability when a new business is the beneficiary of trade secret misappropriation or other unlawful conduct.
Corporate officers or directors “may be liable
for an intentional tort if: (1) the officer or
director purchased or invested in the corporation the principal assets of which were the
result of unlawful conduct; (2) the officer or
director took control of the corporation and
appointed personnel to run the corporation;
and (3) the officer or director did so with
knowledge or, with respect to trade secret
misappropriation…had reason to know, of
the unlawful conduct.”22
In PMC, the plaintiffs—PMC and its subsidiary WFI—sued WFI’s former president
and other senior managers, who left WFI to
form a competing plastics manufacturing
business that the plaintiffs alleged was an
“exact replica of WFI.”23 The plaintiffs alleged
that the defendants formed this competing
business, which they also sued, by engaging
in tortious conduct that included the misappropriation of trade secrets consisting of
WFI’s customer lists, customer product specifications, and manufacturing specifications
and processes.24 After the lawsuit was filed,
defendant Neil Kadisha and others invested
in the defendant start-up business; became
majority shareholders, officers, and directors; appointed personnel to run the business; and effectively took control of the new
corporation.25 The plaintiffs demanded that
the investor defendants cause the new busi-
ness to “cease and desist from the ongoing
use of WFI’s confidential and proprietar y
information,” and then added the investor
defendants to the lawsuit when they refused
to comply.26
The investor defendants moved for summar y judgment on the grounds that they
could not be personally liable for misappropriation of trade secrets and the other alleged
wrongful conduct because they had not authorized or participated in any of the wrongful
conduct, and had not done anything more
than serve as directors and officers of the
defendant business.27 The trial court granted
the investor defendants summary judgment,
but the court of appeal reversed, rejecting
the investor defendants’ argument that they
could not be held vicariously liable for the tortious conduct of the corporation. Noting that
the “defendants purchased a corporation
whose sole assets were purportedly corruptly
acquired resources,” the court of appeal
opined, “Liability imposed on a corporate
shareholder, officer, or director who knows or
has reason to know about tortious misappropriation under these circumstances and
allows it to occur is not vicarious.”28
This new business tort, born of allegations of trade secret misappropriation, poses
clear risks for new business formation.
Investors willing to risk a capital investment
in a new business may be loathe to risk personal liability if the new business is later
adjudged to have misappropriated trade
secrets. Established companies, facing incipient competition from former employees, now
have a powerful new strategy to stifle competition if they can make a colorable claim of
misappropriation of trade secrets. By putting
new investors and the officers and directors
they appoint on notice of the trade secret
claim, plaintiffs can make investors face a
difficult choice. They can withdraw from the
corporation and risk the loss of their investment or be defendants in a lawsuit, facing
potential personal liability for compensatory
and punitive damages. Used aggressively in
this way, a claim of misappropriation of trade
secrets can bring even greater pressure than
before on a fragile start-up business.
The Lessons of PMC
PMC demonstrates the aggressive use of
the UTSA. The court of appeal reversed a
summary judgment in favor of the defendant,
Kadisha, who was a director of the defendant
start-up business, based in part on the fact
that the plaintiffs had put Kadisha on notice
of their assertion that the new business was
started with the plaintiffs’ trade secrets. Yet
at trial the plaintiffs’ trade secret claims were
defeated and adjudged by the court to have
been brought in bad faith. Just as the court of
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❏ No. 6: (Legal Ethics credit) TURNING blueprint for resolving conflicts involv- While public policy favors the enforceOVER CLIENT FILES What you don’t ing foreign nations and their instrument of contractual choice of law proknow can hurt you-2/93 #222
mentalities-10/99 #292
visions, practitioners need to be mindful
of the general exceptions-7-8/00 #312
❏ No. 24: (Law Practice Management ❏ No. 78: PUT UP OR SHUT UP An
credit) A FIRM GRIP Unwinding a law understanding of the shifting burdens ❏ No. 87: BONUS POINTS (Legal
firm partnership requires strict adher- of production is central to arguing sum- Ethics credit) Bonus provisions agreed
ence to legal and ethical principles- mary judgment motions-11/99 #293
to by attorneys and their clients will
12/94 #233
likely be enforceable if the agreement
❏ No. 79: STOPPING THE MERRYclearly delineates an “extraordinarily fa❏ No. 42: (Legal Ethics credit) GOLD- GO-ROUND The choice between Calvorable result”-9/00 #313
EN RULES A series of decisions and ifornia and federal preclusion law can
opinions issued in 1995 provides determine the outcome of a second ac- ❏ No. 88: STOCK IN TRADE To
lawyers with clear guidance through tion-12/99 #294
achieve maximum advantages for the
ethical minefields-7-8/96 #253
company and recipients, an equity
❏ No. 80: STAYING CLEAN To avoid
compensation plan must comply with a
❏ No. 46: FOR WHAT IT’S WORTH problems with the IRS, tax advisers
host of securities and tax laws-10/00
Recent California rules that allow the need to consider the imprecise distinc#314
buying and selling of law practices have tions between environmental remediaopened up opportunities for small firms tion costs that can be expensed and ❏ No. 89: WILL POWER With good
and solo practitioners-12/96 #257
those that must be capitalized-1/00 communications and effective educa#295
tion most will contests can be resolved
❏ No. 57: WISE DEDUCTIONS (Law
short of a trial-11/00 #315
Practice Management credit) The de- ❏ No. 81: DISABLING SWITCH Unductibility of a lawyer’s educational ex- der a recent U.S. Supreme Court deci- ❏ No. 90: RESPECTING OUR ELpenses may be more questionable than sion, lower courts will have to deter- DERS The California Supreme Court’s
you think-12/97 #269
mine when a claim for disability dis- decision in Delaney has alerted litigators
crimination is barred by an application to the strength of the Elder Abuse Act❏ No. 60: AN INDISCRIMINATE
for disability benefits-2/00 #296
12/00 #316
MEASURE (Elimination of Bias credit)
Now that Proposition 209 has survived ❏ No. 82: ABOUT FACE Does the ❏ No. 91: TOXIC TIMELINE The
judicial scrutiny, considerable litigation 1992 amendment to Code of Civil Pro- Supreme Court’s decision in Hamilton
to determine its scope and reach can cedure Section 1008 violate the doc- will have little relevance when applying
be expected-3/98 #273
trine of separation of powers?-3/00 the statute of limitations in other toxic
#297
tort contexts-01/01 #317
❏ No. 63: RULING ON THE RULES
(Legal Ethics credit) While 1997 was a ❏ No. 83: CHILDREN OF FORTUNE ❏ No. 92: DRIVEN TO EXCESS In
busy year for the development of legal High-earning entertainers may be able judging the potential liability of excess
ethics, no dramatic departures from to avoid the use of the statutory guide- insurers, courts must look to the lanprecedent emerged-6/98 #276
lines when calculating child support guage of the contract to determine
payments-4/00 #298
whether vertical or horizontal exhaus❏ No. 75: FIRING AT WILL Has the
tion is required-02/01 #318
Green decision opened the floodgates ❏ No. 84: 1999 ETHICS ROUNDUP
for the use of wrongful termination liti- (Legal Ethics credit) Court decisions in ❏ No. 93: TIME BANDITS (Legal
gation to achieve public policy goals?- 1999 make it clear that a risk man- Ethics credit) Attempts by lawyers to
7-8/99 #289
agement strategy is a lawyer’s best pad hours can often be uncovered by a
method of preventing ethical liabili- careful examination of billing state❏ No. 76: ON TO A HIGHER COURT
ties-5/00 #299
ments-03/01 #319
The outcome of an appeal will often
depend on important strategic deci- ❏ No. 85: WHO’S THE CLIENT? (Le- ❏ No. 94: MINDING YOUR O’S
sions that must be made soon after fil- gal Ethics credit) Last year’s court deci- AND P’S U.S. immigration law proing the notice of appeal-9/99 #291
sions on lawyer conflicts of interest vides special visa categories to facilitate
have handed attorneys an array of the entry of foreign entertainers into
❏ No. 77: THE UNTOUCHABLES The
sometimes conflicting rules-6/00 #311 the country-04/01 #321
Foreign Sovereign Immunity Act has
failed to provide practitioners with a ❏ No. 86: CHOICE LOCATIONS ❏ No. 95: MAGNIFICENT EXCEP-
TIONS Practitioners can sometimes quences of controversial tax-sheltered
overcome a Statute of Frauds defense transactions-4/02 #332
by asserting equitable estoppel-05/01
❏ No. 105: FIVE CASES THAT
#322
SHOOK HOLLYWOOD What court
❏ No. 96: 2000 ETHICS ROUNDUP cases make Hollywood’s A-list?-5/02
(Legal Ethics credit) Last year’s court de- #333
cisions affecting legal ethics clarified
❏ No. 106: 2001 ETHICS ROUNDUP
the duties of lawyers to clients and
(Legal Ethics credit) Old issues and new
nonclients alike-06/01 #323
forms of practice defined developments
❏ No. 97: PARTNERSHIPS IN LAW in legal ethics in 2001-6/02 #334
(Elimination of Bias credit) California’s
❏ No. 107: HARASSMENT MEAnew Domestic Partnership Registration
SURES (Elimination of Bias credit) ReAct may aid same-sex partners in procent court decisions have more sharply
viding a legal basis for their life relationdefined the contours of sexual harassships-07-08/01 #324
ment and provided a means of mini❏ No. 98: BY ANY OTHER NAME mizing employer liability-7-8/02 #335
No matter what workers are called,
❏ No. 108: NO ASSURANCES Insurtheir status and treatment as employance coverage for the events of Sepees are subject to a variety of facttember 11 will hinge upon the interprebased tests-09/01 #325
tation of often ambiguous policy lan❏ No. 99: PERSONNEL IMPACT guage-9/02 #336
Technology companies facing layoffs
❏ No. 109: UNCERTAIN APPEAL
must navigate through a complex set
Both opponents and advocates of exof state and federal laws protecting
panded judicial review of arbitration deemployees-10/01 #326
cisions invoke the intent of the Federal
❏ No. 100: EXPERT GRILLING To Arbitration Act-10/02 #337
prevent experts in legal malpractice cas❏ No. 110: HIGH ACCOUNTABILITY
es from wielding undue influence,
The enforcement of previous legislation
counsel must crack their facade of imoffers important lessons on how the
partiality and reliability-11/01 #327
new executive certification require❏ No. 101: THE COSTLY CLIENT ments will be applied -11/02 #338
Case law provides guidance on how
lawyers can void the Trope rule against
awarding attorney’s fees-12/01 #328
❏ No. 102: IN THE LAND OF AAS
The California Supreme Court has ruled
that damages from construction defects must be manifest in order to bring
a tort cause of action-1/02 #329
❏ No. 103: TIED TO THE STAKE
Trends in federal securities fraud legislation and case law may not fully protect
attorneys from the reach of common
law negligence claims-2/02 #331
❏ No. 104: RICKETY SHELTERS Taxpayers have a unique opportunity to
limit their exposure to the conse-
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appeal decision reversing the investor defendants’ summary judgment became final, the
case went to trial against the other defendants. After more than two months of a jury
trial, the court granted the defendants a
directed verdict on the plaintiffs’ trade secret
claims on the grounds that the plaintiffs had
not proved the alleged misappropriation
involved any trade secrets. Thereafter, the
jury returned verdicts against the plaintiffs on
their other tort claims.29 The investor defendants then obtained a second summary judgment in their favor, on the grounds that the
lack of any wrongful conduct on their behalf
was conclusively established by the verdicts
in favor of the other defendants. In PMC, the
investors in the start-up company had the
financial resources and the willingness to
weather the litigation, which could otherwise
have put the new company out of business.
Other investors may not have this fortitude,
and other start-up companies may not be so
fortunate.
Defendants charged with misappropriating trade secrets have a variety of tools available to minimize the damage of trade secrets
claims that are marginal or made in bad faith.
An aggressive judicial response in cases
in which the suppression of legitimate competition may be the intended or even unintended result of the litigation should flow
from healthy judicial skepticism of trade
secret allegations. The first order of business
in trade secrets cases is usually the plaintiffs’
application for a temporary restraining order
and preliminary injunction. Aggressive plaintiffs’ counsel typically seek a broadly worded
order to prohibit a range of competitive activity that may not be tightly connected to the
allegedly misappropriated trade secrets, or the
trade secrets themselves may be broadly and
vaguely described. There may be evidence
that a defendant left the plaintiff’s employ
and took hard copy or electronic information
belonging to the plaintiff. If injunctive relief
is to issue, it should be carefully limited to the
protection of well-defined trade secrets and
not used merely as a punishment against former employees for taking property belonging
to their former employer. Because the
issuance of injunctive relief, no matter how
narrowly constrained, may have serious competitive ramifications, courts should carefully
balance the equities and enjoin the use of
information only when the information clearly
qualifies as a trade secret.
The legislature has enacted some discovery protection in the form of Code of Civil
Procedure Section 2019(d), which requires a
party alleging trade secret misappropriation
to “identify the trade secret with reasonable
particularity” before commencing discovery
relating to the trade secret. Before forcing
defendants to comply with the intrusive and
burdensome discovery that legitimate trade
secret claims may justify, cour ts should
require plaintiffs to state the specific information that constitutes the trade secret. Such
broadly stated trade secrets as customer identities, customer purchasing requirements,
the process for manufacturing certain products, or cost and profit information should not
suffice. These may or may not be protectible
trade secrets. Without specific information, it
is impossible to tell.30
All too often, employees take information
belonging to their former employer with
them. They may have been given the information to do their job, they may have accumulated the information themselves during
their employment, or they may have taken the
information when leaving. The information
may be useful to the employee in taking a new
position with a competitor, the information
may be proprietary to the former employer in
the sense that it is physical property that
belongs to the former employer or was compiled by the former employer, and it may be
to some extent confidential because the information or the compilation is not published or
disseminated by the former employer.
But is the information a trade secret? To
make this determination, cour ts should
require objective evidence that the information has independent economic value. 31
Although there is little case law on the meaning of this UTSA requirement, courts most
frequently look to the “work effort” and cost
of developing or compiling the confidential
information. 32 Cour ts may also look to
whether the information itself is marketable33
or whether the information provides a competitive advantage in the industry, one example being an “innovator’s premium.”34
Beyond demonstrating that time and effort
were required to compile the confidential
information, a party suing on a true trade
secret should be able to produce evidence that
the same or similar information is sold or
licensed in the industry. The absence of such
evidence would seem to belie an argument
that the information has independent economic value. The information must also be
“the subject of efforts that are reasonable
under the circumstances to maintain its
secrecy.”35 Here the required proof should
demonstrate steps taken specifically to maintain the secrecy of the alleged trade secret,
rather than more generalized business security measures.
The UTSA authorizes the court to award
reasonable attorney’s fees to the prevailing
party if “a claim of misappropriation is made
in bad faith.”36 The legislature intended this
attorney’s fees provision “as a deterrent to
specious claims of misappropriation.” 37
Recently, the California Court of Appeal has
interpreted this bad faith standard to require
a showing of the “objective speciousness of
[the plaintiff’s] claim, as opposed to frivolousness, and its subjective bad faith in bringing or maintaining the claim.”38 Moreover,
“[b]ad faith may be inferred where the specific shortcomings of the case are identified
by opposing counsel, and the decision is made
to go forward despite the inability to respond
to the arguments raised.”39 Awarding attorney’s fees liberally when confronted with specious trade secret claims should prove to be
an effective deterrent to such claims.
The final outcome of PMC demonstrates
effective judicial use of the attorney’s fee provision of the UTSA. Following the entry of
judgment in their favor, the defendants moved
for an award of attorney’s fees under the
authority of the UTSA. The court granted
the defendants’ motions for attorney’s fees,
finding that the plaintiffs’ trade secret claims
were brought in bad faith and rejecting the
plaintiffs’ argument that attorney’s fees should
be strictly limited to the trade secret cause of
action. Because the trade secrets claims were
linked with the plaintiffs’ other claims, the
court awarded the defendants most of the
attorney’s fees they incurred over more than
two years of intense litigation defending the
trade secrets claims and the related causes of
action.40
The UTSA provides important protections
for valuable business information but if misused has the potential for serious anticompetitive harm. Trade secret claims based on
broadly defined, arguably confidential business information may be used to discourage
employees from accepting employment with
competing businesses; to discourage investment in start-up businesses; to support other
causes of action with anticompetitive potential; and to sustain prolonged, intensive, and
expensive litigation that itself may discourage
or even eliminate competition. An aggressive
defense of marginal trade secret claims and
judicial awareness of the dangers trade secret
litigation may pose are the keys to containing
the dark side of the UTSA.
■
1
The Uniform Trade Secrets Act, CIV. CODE §§3426 et
seq.
2
See CIV. CODE §3426.1(d).
3
CIV. CODE §3426.1(d)(1).
4
CIV. CODE §3426.1(d)(2).
5
See CIV. CODE §§3426.2, 3426.3, 3426.4.
6
See, e.g., The Unfair Competition Act, BUS. & PROF.
CODE §§17200 et seq.; The Unfair Practices Act, BUS. &
PROF. CODE §§17000 et seq.; The Cartwright Act, BUS.
& PROF. CODE §§16700 et seq.; and the prohibition on
restraints of profession, trade, or business, BUS. &
PROF. CODE §16600.
7
See generally B. MALSBERGER, COVENANTS NOT TO
COMPETE: A STATE-BY-STATE SURVEY (2d ed. 1996).
8
The exceptions include a person who sells the good-
will of a business or all of his or her shares in a corporation (BUS. & PROF. CODE §1660) and a partner who
sells his or her interest in a partnership (BUS. & PROF.
CODE §16602).
9
28 CALIFORNIA LEGAL FORMS, TRANSACTION GUIDE
§85.200[2], at 85-121 (2002).
10
Pepsi Co. Inc. v. Redmond, 54 F. 3d 1262, 1269 (7th
Cir. 1995).
11
Keith A. Roberson, Annual Survey of South Carolina
Law: Employment Law, 52 S.C. L. REV. 895 (Summer
2001).
12
Electro Optical Indus. v. White, 76 Cal. App. 4th 653,
90 Cal. Rptr. 2d 680 (1999) (depublished Apr. 12, 2000).
13
Schlage Lock Co. v. Whyte, 2002 Daily Journal D.A.R.
10594, 2002 WL 31040309 (Sept. 12, 2002).
14
Id.
15
16
Schlage, 2002 Daily Journal D.A.R. at 10599.
17
Id. at 10600.
18
19
Della Penna v. Toyota Motor Sales, 11 Cal. 4th 376,
393, 45 Cal. Rptr. 2d 436, 447 (1995).
20
The defendant may seek a protective order limiting
disclosure of sensitive information to the attorneys or
to a limited group of the plaintiff’s representatives, but
as a practical matter this order may not afford real protection.
21
PMC v. Kadisha, 78 Cal. App. 4th 1368, 93 Cal. Rptr.
2d 663 (2000).
22
Id., 78 Cal. App. 4th at 1372.
23
Id. at 1375.
24
Id. at 1374-75.
25
Id. at 1375.
26
Id. at 1374.
27
Id. at 1378-79.
28
Id. at 1389 (emphasis in original).
29
Los Angeles Superior Court Case No. BC 193482,
Judgment on the Verdicts for Defendants (Feb. 22,
2001).
30
See CODE CIV. PROC. §2019(d), which recognizes that
the identification of such sensitive information may
require protective orders, in camera hearings, sealing
the records of the action, or other court orders, as
authorized by the UTSA in CIV. CODE §3426.6, to preserve the secrecy of the alleged trade secret.
31
CIV. CODE §3426.1(d)(1).
32
See Courtesy Temporary Serv., Inc. v. Camacho, 222
Cal. App. 3d 1278, 1287, 272 Cal. Rptr. 352, 357 (1990);
Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 1522, 66 Cal.
Rptr. 2d 731, 736 (1997).
33
See Fred Stores of Miss., Inc. v. M & H Drugs, Inc.,
725 So. 2d 902, 910 (1998) (“The information on the list
had independent economic value as evidenced by the
fact that marketing companies are willing to pay money
to obtain it.”); Hoffmann-La Roche Inc. v. Yoder, 950 F.
Supp. 1348, 1358 (S.D. Ohio 1997) (“[C]ourts have
held, however, that the fact a party is willing to pay a
large price to acquire information is evidence of the
value of such information.”).
34
Avery Dennison Corp. v. Finkle, 2002 Conn. Super.
LEXIS 329 (2002).
35
CIV. CODE §3426.1(d)(2).
36
CIV. CODE §3426.4.
37
Gemini Aluminum Corp. v. California Custom Shapes,
95 Cal. App. 4th 1249, 1261, 116 Cal. Rptr. 2d 358, 367
(2002).
38
Id., 95 Cal. App. 4th at 1262.
39
Id. at 1264.
40
The attorney’s fees awarded totaled approximately $6
million. See PMC v. Paul Winkler, Los Angeles Superior
Court Case No. BC 193482. See also Gemini Aluminum
Corp., 2002 Daily Journal D.A.R. 1443 (2002) (affirming an award of $160,200 in attorney’s fees under
§3426.4 for a bad faith prosecution of a trade secrets
claim).
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By Diane Kimberlin
Struggles
Class
California courts have yet to offer clear
guidance on the certification of
class actions in wage and hour disputes
common claim brought against employers,
and potentially the most costly, is the
improper classification of managerial employees as exempt under the “executive” exemption or the misclassification of other employees as exempt under the “administrative”
exemption.
Many employers previously unaware of
the significant dif ferences between
California’s wage and hours laws and the federal Fair Labor Standards Act2 have learned
at considerable cost that California’s tests
for exemption from overtime pay requirements are harder to meet than those under
the federal law. Multistate employers, for
example, have paid huge settlements in class
action litigation because their wage and hour
policies had been designed to comply with the
FLSA but could not pass muster under
Diane Kimberlin is a shareholder in the Los
Angeles office of Littler Mendelson, P.C. She
devotes her practice to the representation of
employers in labor and employment law matters.
KEN CORRAL
The
application of standard class action
principles to claims
that employers have violated California’s
wage and hour laws has been the subject of
much controversy and litigation in recent
years and is beginning to reshape employer
practices in more than one industry. Lawsuits
challenging employers’ wage and hour practices on a class-wide basis have targeted a
broad range of employers and industries,
including fast food restaurants, chain retail
stores (including those selling clothing, auto
supplies, and home and decorating items, as
well as drug stores and video rental stores),
car rental companies, grocery stores, and
insurance companies.
The lawsuits allege a variety of violations
of wage and hour laws. These include requiring hourly nonexempt employees to work
“of f the clock,” failing to provide these
employees with proper rest breaks and meal
periods, and failing to accurately identify and
pay for all time worked.1 Probably the most
California law.
California wage and hour laws are more
favorable to employees in other respects as
well. For example, under California law, the
consequences for failure to provide required
rest breaks and meal periods include the
equivalent of an extra hour of pay for missed
breaks.3 An employer who violates any provision of the “working hours” chapter of the
Labor Code4 or any provision regulating hours
and days of work in any wage order issued by
the Industrial Welfare Commission5 may be
required to pay civil penalties. The penalty for
an initial violation is $50 per affected employee
per pay period. For each subsequent violation
the penalty doubles to $100 per employee
per pay period.6 “Waiting time penalties” of up
to 30 days’ wages may be assessed against
employers who fail to make timely payment
of all wages (including accrued but unused
vacation pay) owed to an employee who is discharged or quits.7 Prevailing plaintiffs are
entitled to recover their attorney’s fees.8
Employers can face very significant liabilities when these remedies are aggregated
in potential class-wide recoveries. The fact
that under federal and California law individuals acting on behalf of an employer may
be held personally liable for unpaid wages
and penalties makes inattention to wage and
hour compliance a very risky proposition.9
A claim may be maintained as a class
action under California law “when the question is one of a common or general interest,
of many persons, or when the parties are
numerous, and it is impracticable to bring
them all before the court….”10 California
courts recognize the similarities between the
prerequisites for class actions under state
and federal law and may look to decisions of
the federal courts for guidance in determining whether a dispute should be certified for
class treatment.11
Under federal law, class actions are appropriate when: “(1) the class is so numerous that
joinder of all members is impracticable, (2)
there are questions of law or fact common to
the class, (3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will fairly and adequately protect
the interests of the class.”12
Once the prerequisites are in place, federal
law permits class actions if certain other conditions are present. Among these are “that the
questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and
that a class action is superior to other available
methods for the fair and efficient adjudication
of the controversy….”13
The proponent of class certification bears
the burden of proving that common ques24 LOS ANGELES LAWYER / NOVEMBER 2002
tions predominate over individual ones and
that the other conditions for a class action are
present.14 In almost all wage and hour cases
it is the plaintiffs who wish to certify the case
as a class action, so they must bear this burden of proof. One of the most controversial
issues facing the courts in recent years has
been whether lawsuits alleging violation of
wage and hour laws, especially claims that
employers have misclassified workers as
exempt from the requirement of overtime
pay, can meet these standards and be tried as
class actions.
Exempt Status
Both California and federal law provide
exemptions from overtime pay requirements
for executive, administrative, and professional
employees. Under both California and federal
law, exempt status is an affirmative defense,15
and the exemptions are to be “narrowly construed.”16 Under California law, the Industrial
Welfare Commission may establish exemptions from the state’s overtime pay requirements for executive, administrative, and professional employees “provided that the
employee is primarily engaged in the duties
that meet the test of the exemption, customarily and regularly exercises discretion and
independent judgment in performing those
duties, and earns a…salary equivalent to two
times the minimum wage for full-time employment.”17 The federal exemptions are authorized by the Fair Labor Standards Act and
their parameters explained in regulations
issued by the U.S. Department of Labor.18
The “professional” exemption is not often
the subject of litigation. In the broadest terms,
under federal and California law, the exemption applies to 1) employees performing work
requiring advanced knowledge acquired by a
prolonged course of specialized instruction,
2) employees in the artistic and the learned
professions (for example, medicine, architecture, and dentistry), 3) employees who
are educators, and 4) employees performing
certain highly sophisticated work in computer systems analysis, programming, and
software engineering.19
Under federal and California law, the executive exemption applies only to employees
who regularly supervise the work of at least
two full-time employees (or their equivalent
in part-time employees), who are in charge of
a recognized department or business division, and who have the authority to hire and
fire employees or to make effective recommendations to do so.20 An administrative
employee is exempt only if his or her primar y duties involve the per formance of
“office or non-manual work directly related to
management policies or general business
operations of his employer or his employer’s
customers.” An exempt administrative
employee also regularly assists an owner,
executive, or administrator; or performs technical or specialized work; or executes special assignments under only general supervision.21 All three exemptions—professional,
executive, and administrative —can be lost if
the employees in question spend too much
time on nonexempt work, including so-called
production work.22
California and federal law part company on
several key points in determining the applicability of the exemptions. But the difference
that lies at the heart of much recent litigation
is the amount of time an executive or administrative employee may spend on nonexempt
tasks and still be exempt.
Under the FLSA any employee earning a
salary of at least $250 per week qualifies for
the so-called short test to determine exempt
status under the executive or administrative
exemptions.23 Because the salary required
for application of the short test is minimal, the
vast majority of cases determining exempt
status under the FLSA use this test. It requires
that the employee’s “primary duty” consist of
either managerial or administrative work that
“includes” the exercise of discretion and independent judgment.24 The federal law permits
a finding that an employee’s primary duty
consists of those tasks most important to the
employer, even if they do not take up the
majority of the employee’s time.25 In other
words, it permits a qualitative analysis of the
primary duty standard.
California law, in contrast, requires a
purely quantitative analysis. An employer
must show that its exempt employees spend
more than 50 percent of their time engaged
in exempt tasks.26 The California Supreme
Court described how this analysis should be
under taken in its decision in Ramirez v.
Yosemite Water Company:27
[The trial court should inquire] into
the realistic requirements of the job. In
so doing, the court should consider,
first and foremost, how the employee
actually spends his or her time. But
the trial court should also consider
whether the employee’s practice
diverges from the employer’s realistic expectations, whether there was
any concrete expression of employer
displeasure over an employee’s substandard performance, and whether
these expressions were themselves
realistic given the actual overall
requirements of the job.28
The Ramirez court remanded the case to
the trial court with instructions to:
[I]temize the types of activities that it
considers to be [exempt], and the
approximate average times that it finds
the employee spent on each of these
activities. Because the question
whether a par ticular activity is
[exempt] is a mixed one of law and
fact, this itemization will enable an
appellate court to review whether the
trial court’s legal classifications are
correct, and whether its factual findings are supported by substantial evidence.29
Ramirez claimed that he was incorrectly
classified as an exempt outside salesman.
The cour t’s reasoning, however, applies
equally to the determination of exemptions
under the executive and administrative tests.
The Ramirez decision was seized upon by
defense counsel opposing attempts to certify
claims for over time for class treatment.
Employers argued that such a fact-intensive
analysis, used in the service of a test in which
exempt status can turn on the proper characterization of tasks consuming only a small
percentage of an employee’s time, is inherently inappropriate for application to classwide claims.
This argument was advanced both on
demurrers and in opposition to motions for
class certification.30 Trial courts were not
often persuaded by this argument, and a number of cases were certified for class treatment. Several employers sought review of
class certification orders by writ. When the
appellate courts proved unwilling to issue
writs, many employers settled rather than
wait for the chance of relief on appeal.
The Sav-On Analysis
Earlier this year, however, in the case of SavOn Drug Stores, Inc. v. Superior Court,31 a
California appellate court for the first time
considered the propriety of class certification in a case challenging the exempt status
of a company’s managerial employees. The
court noted, “Relief by extraordinary writ is
appropriate to prevent a burdensome trial in
a massive class action.”32
The Sav-On court reversed the trial court’s
order granting cer tification of a class of
approximately 1,400 managers employed in
approximately 300 Sav-On stores. The court
determined that the plaintiffs had not met
their burden of proving that common issues
predominated over questions that would
require individualized proof at trial. Assertions
in the plaintiffs’ declarations that managers’
job duties did not vary from store to store
were found to be unsupported by personal
knowledge. The plaintiffs also sought to persuade the court that the predominance of
common questions was shown by the company’s use of uniform job descriptions and the
same performance review form for all the
stores, a compensation system that applied to
all members of the putative class, class-wide
training programs, a minimum work week
of 48 hours for class members, and the classification of all managers and assistant managers as exempt. In addition, they pointed to
the absence of a compliance program to train
employees to differentiate between exempt
and nonexempt tasks and the fact that Sav-On
had not undertaken empirical studies or surveys to identify the amount of time the managers and assistant managers spent on the
component tasks of their jobs.
The Sav-On court was not persuaded by
these arguments.33 The court concluded that
the plaintiffs had identified issues not likely
to be in dispute at a trial on the merits. Also,
they had not made an adequate showing that
common issues would predominate at a trial
on the central disputed issue—that is, how the
putative class members spent their time. The
court concluded that the “policies, practices,
and procedures cited by plaintiffs do not
address that issue nor show that the way the
[managers and assistant managers] spend
their time is so standard or uniform as to be
triable on a class-wide basis.”34
The Sav-On court looked to the defen-
dant’s showing that its managers and assistant
managers faced a wide variety of divergent
conditions in its stores. These included the
location and square footage of the stores, the
number of managers, the size of the staff
supervised, the mix of part-time and full-time
employees, the hours the stores were open to
the public, the rate of turnover among the
staff, each store’s sales volume, and each
manager’s style and experience. The court
was convinced that these varied conditions
resulted in enough of a divergence in how the
company’s managers spent their workdays
that individualized fact questions would need
to be litigated regarding each member of the
class in order to determine whether or not a
particular manager spent more than half of his
or her time on exempt tasks.35
There is no public policy favoring class
actions in the absence of a predominance of
common questions, at least in part because a
class action “may preclude a defendant from
defending each individual claim to its fullest.”36
The Sav-On court rejected concerns that
class members would be unlikely to seek
individual redress of their claims, noting that
individual awards might amount to thousands
of dollars and that prevailing plaintiffs are
entitled to recover their attorney’s fees.37
Although the Sav-On decision was a victory for employers, the court did not hold
that claims regarding managerial exemptions
from overtime pay can never be determined
on a class-wide basis. It acknowledged that the
way in which some managers spend their
time might be so uniform that their exempt
status could be determined on a class basis.38
In Belazi v. Tandy Corporation,39 a trial
court found such a situation shortly after the
Sav-On decision was issued, in a case involving a challenge to the exempt status of managers working for Radio Shack stores. The
company sought to decertify a previously
certified class. The plaintiff managers successfully defended the class action status of
their lawsuit. They argued that the company’s
policies required managers to spend the
majority of their time in sales activities; that
the company enforced those policies by close,
centralized supervision; that sales statistics
showed that the managers did, in fact, spend
the majority of their time selling; and that
the company dictated the vast majority of
managerial decisions to free its managers to
focus on selling. The plaintiffs also argued
that Sav-On did not require a demonstration
that the duties of the managers must be identical. Instead, according to the plaintiffs,
under Sav-On, the evidence must justify a
reasonable inference that the duties of the
managers are so uniform as to be triable on
a class basis.40
In contrast, Radio Shack, founding its
argument on Ramirez and Sav-On, argued
that the court must look “first and foremost”
to the actual work duties performed by the
class members. It contended that the class
certification decision was based on an unwarranted reliance on company policies, which
were unknown to or not followed by a significant segment of the class and could not support a finding that common questions predominated. Radio Shack also sought to
persuade the court that declarations submitted by class members and others showed
wide variations in the amount of time spent by
different managers on the component tasks
of the job. The company argued that the evidence supported a conclusion that individualized fact inquiries were needed to determine if any given manager was exempt.41
The court, while not finding fault with the
Sav-On court’s analysis, determined that the
nature of the operations of the Sav-On and
Radio Shack companies was sufficiently dissimilar to support a result different from that
of Sav-On. Finding “a great deal of commonality” in Radio Shack’s operations, the time
that managers were involved in nonmanagement duties, and the lack of discretion of the
managers, the trial court denied the company’s motion to decertify the class.42
The guidance offered by Sav-On was longawaited; it was also short-lived. On July 17,
2002, the California Supreme Court granted
review of the Sav-On decision. As expected,
the plaintiffs’ bar and defense counsel view
this development through ver y different
lenses.
The defense bar largely views the SavOn decision as long-delayed recognition that
ef for ts to apply the fact-intensive test of
exempt status on a class basis will, except in
the unusual case, overwhelm the employer’s
ability to defend itself with any but the broadest strokes. In large part they view the granting of review as an acknowledgement by the
supreme court of the need for definitive guid26 LOS ANGELES LAWYER / NOVEMBER 2002
ance on an unusually important issue and
predict that the decision of the court of appeal
will be affirmed.
Many in the plaintiffs’ bar see something
far different. They point toward recent decisions by the supreme court establishing the
right of workers to be paid for time spent
“under the control” of the employer even if not
actively engaged in “work.”43 They note that
the supreme court recognizes that wages are
a vested property right recoverable under
the restitutionar y remedies af forded by
Business and Professions Code Section
1720044 and point to the court’s emphasis in
Ramirez45 on the remedial nature of the laws
regulating wages, hours, and working conditions for the protection and benefit of
employees. Citing the Ramirez court’s directive on remand that the lower court should
look at the average amount of time spent on
the plaintiff’s various activities, plaintiffs’
counsel predict that the supreme court will
endorse the use of statistics and sampling,
rather than requiring exactitude, and will
overrule the appellate court to permit classbased determinations of exempt status so as
not to frustrate California’s public policies
favoring worker protection.46
Representative
Actions
The remedies of Business and Professions
Code Sections 17200 et seq.—California’s
Unfair Competition Law—often are pursued
by employees. Indeed, plaintiffs wishing to
mount a wide-scale challenge to the exempt
status of a category of employees have not
relied solely on attempts to certify their claims
for class treatment. Many, if not most, have
also asser ted claims that the employer’s
alleged failure to pay appropriate wages to the
putative class constitute an unlawful or unfair
business practice in violation of Section 17200.
Section 17200 permits a “representative” plaintiff to bring an action on behalf of all “similarly
situated” individuals. Employees may seek
restitution of allegedly unpaid wages, and
they benefit from the four-year statute of limitations under Business and Professions Code
Section 17208.47
Often, these Business and Professions
Code claims are overlaid with class action
allegations. In its recent decision in Corbett v.
Superior Cour t,48 the California Court of
Appeal for the First Appellate District ruled,
in a case of first impression, that there is no
inherent incompatibility between representative actions under the unfair competition
laws and class actions. A trial court may certify claims under the Unfair Competition Law
for class treatment so long as the requirements of Code of Civil Procedure Section 382
are met. Plaintiffs in a “pure” representative
action brought under Business and Professions Code Section 17200 may be awarded
restitution, but the remedy of disgorgement
of ill-gained profits into a “fluid recovery fund”
is not available. The ruling in Corbett is important because it makes disgorgement into a
fluid recover y fund available in an action
under Section 17200, so long as plaintiffs can
make the showing needed to certify a class.
Whether representative actions under
Section 17200 will be subject to the same
analysis used in Sav-On is a question on the
horizon for practitioners. Because claims
under Section 17200 are actions in equity, a
defendant may persuade a court to decline to
entertain an action as a representative suit if
the defendant can show the potential for
harm.49 In several cases the courts have determined that the need to examine individual
transactions closely renders a case unsuitable for treatment as a representative action
under California’s Unfair Competition Law.50
Logic suggests that the competing concerns animating the argument over the proper
parameters of class litigation of exempt status
and similar claims will be brought to bear on
Business and Professions Code claims.
Employers may argue they will be as prejudiced in their efforts to defend against a representative action under Section 17200 as
they would be in a formal class action.
For example, in South Bay Chevrolet v.
General Motors Acceptance Corporation,51 a car
dealer challenged the methods used by the
defendant to calculate interest on inventory.
The court rejected the attempt to recover
restitution and disgorgement on behalf of
nonparty dealerships, noting that the dealerships differed in financial sophistication,
intelligence, attention to detail, experience
in the business, and other factors. The court
determined that South Bay had failed to prove
that the other businesses it sought to represent were similarly situated regarding the
issues critical to determining the dispute.52
In Bronco Wine Company v. Frank A. Logoluso Farms,53 the court concluded that the
defendant winery had engaged in unfair business practices in the execution of its contracts
to purchase grapes from a variety of growers. The trial court ordered restitution of substantial sums to nonparty growers. However,
the court of appeal determined that such a
judgment might violate state and federal due
process rights because a nonjoined party
would be denied notice and an opportunity to
be heard. The court determined that “without
jurisdiction over the parties an in personam
judgment is invalid,” noting that none of the
nonparties in whose favor the court ordered
restitution were afforded an opportunity to
present their claims before the trial court
through counsel of their own choice.54
Likewise, the Bronco court noted that the
determination of whether the business practices at issue were unfair was “a far more
complex factual issue” than was presented in
several other cases in which the courts were
faced with purely legal questions and the
amount of restitution could be determined by
a simple arithmetical calculation.55 The Bronco
court concluded, “One must question the
utility of a procedure that results in a judgment that is not binding on the nonparty and
has serious and fundamental due process
deficiencies for parties and nonparties.”56
The concerns articulated by the Bronco
court have their counterparts in many of the
issues under review in Sav-On. Should the
Sav-On decision be affirmed and class certification become more difficult to obtain, unfair
and unlawful competition claims will more
likely be presented as pure representative
actions. And the cour ts will likely see
increased litigation regarding whether wage
and hour claims, especially those involving
fact-intensive inquiries like challenges to
exempt status, can be presented on a representative basis without infringing on due
process considerations.
■
1
California and federal law require payment for all
hours persons are “suffered or permitted” by their
employers to work. California law also counts time
spent “under the control” of the employer as time
worked. 29 U.S.C. §203(g); Morillion v. Royal Packing
Co., 22 Cal. 4th 575 (2000).
2
The Fair Labor Standards Act, 29 U.S.C. §§201 et seq.
The FLSA and the regulations interpreting its requirements can be found on the U.S. Department of Labor’s
Web site at www.dol.gov.
3
LAB. CODE §226.7.
4
LAB. CODE §§500-558.
5
The California Industrial Welfare Commission issues
wage orders that set forth conditions for employment
in various industries. 8 CAL. CODE REGS. §§11010-11170.
The wage orders can be found on the commission’s
Web site at www.dir.ca.gov/iwc/iwc.html.
6
LAB. CODE §558(a)(1) and (2).
7
LAB. CODE §203. These penalties apply when an
employer “willfully” fails to pay wages on the cessation
of employment. The meaning of “willful” is under
review by the California Supreme Court in Smith v. Rae
Venter, 89 Cal. App. 4th 239 (2001).
8
LAB. CODE §§218.5, 1194; Earley v. Superior Court, 79
Cal. App 4th 1430 (2000); see 29 U.S.C. §216(b).
9
LAB. CODE §558(a); Donovan v. Agnew, 712 F. 2d
1509, 1511 (1st Cir. 1983) (corporate officer with operational control is jointly and severally liable under the
FLSA for unpaid wages); Bureerong v. Uvawas, 922 F.
Supp. 1450, 1467 (C.D. Cal. 1996) (“[E]mployer”
includes “any person acting directly or indirectly in
the interest of an employer in relation to an employee[.]’
29 U.S.C. §203(d).”) Likewise, the California labor
commissioner takes the position that liability may be
assessed against individuals for wages owed by a corporation under California law. See letter of June 18,
2002, from Miles Locker, Attorney for the Labor
Commissioner, to Hon. John M. Watson, Judge of the
Orange County Superior Court (on file with author).
10
CODE CIV. PROC. §382.
11
See, e.g., City of San Jose v. Superior Court, 12 Cal.
3d 447 (1974).
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12
FED. R. CIV. P. 23(a).
FED. R. CIV. P. 23(b)(3).
14
Washington Mut. Bank v. Superior Court, 24 Cal. 4th
906, 913 (2001).
15
Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 79596 (1999); Nordquist v. McGraw-Hill Broad. Co., 32 Cal.
App. 4th 555, 562 (1995); Corning Glass Works v.
Brennan, 417 U.S. 188, 196-197, 94 S. Ct. 2223, 2229, 41
L. Ed. 2d 1 (1974).
16
Ramirez, 20 Cal. 4th at 794; see also A. H. Phillips Inc.
v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807, 808, 89 L.
Ed. 1095 (1945).
17
LAB. CODE §515(a). These are minimum requirements applicable to all exemptions. Further requirements are set forth in the various wage orders issued
by the Industrial Welfare Commission.
18
29 U.S.C. §213(a)(1); 29 C.F.R. §§541.1-541.3,
541.99–541.315.
19
See 29 C.F.R. §541.3(a)-(e); see, e.g., Wage Order 1,
8 CAL. CODE REGS. §11010(1)(A)(3)(a)-(j).
20
See, e.g., Wage Order 1, 8 C AL . C ODE R EGS .
§11010(1)(A)(1)(a)–(f); 29 C.F.R. §§541.1, 541.102-116.
21
See, e.g., Wage Order 1, 8 C AL . C ODE R EGS .
§11010(1)(A)(2)(a)-(g); 29 C.F.R. §§541.2, 541.214(a).
22
See, e.g., Bell v. Farmers Ins. Exch., 87 Cal. App. 4th
805, 819 (2001).
23
29 C.F.R. §541.119(a)(executive exemption); 29 C.F.R.
§541.214(a) (administrative exemption).
24
Id.
25
Rutlin v. Prime Succession, Inc., 220 F. 3d 737, 742
(6th Cir. 2000) (professional employee); Schaefer v. Ind.
Mich. Power Co., 197 F. Supp. 2d 935, 941 (W.D. Mich.
2002); Kemp v. State of Montana Bd. of Personnel
Appeals, 5 Wage & Hour Cas. (BNA) 2d 1302 (Mont.
Sup. Ct. 1999)(restaurant manager was exempt
employee even though she spent 80 percent of her
13
time in production work; her managerial duties were relatively more important than her cooking duties).
26
L AB . C ODE §515(a); wage orders issued by the
California Industrial Welfare Commission (see, e.g.,
Wage Order 1, 8 CAL. CODE REGS. §11010(1)(A)(1)(e),
§11010(2)(K)). See also Ramirez v. Yosemite Water
Co., 20 Cal. 4th 785, 797 (1999).
27
Ramirez, 20 Cal. 4th at 802.
28
Id. (emphasis in original).
29
Id. at n.5.
30
A demurrer is a proper vehicle for presentation of an
argument that the litigation cannot proceed as a class
action. Vasquez v. Superior Court, 4 Cal. 3d 800, 815,
820 (1971); Silva v. Block, 49 Cal. App. 4th 345, 350
(1996); Bartlett v. Hawaiian Village, Inc., 87 Cal. App.
3d 435, 437-38 (1978).
31
Sav-On Drug Stores, Inc. v. Superior Court, 97 Cal.
App. 4th 1070 (2002), review granted, 2002 Cal. App.
LEXIS 4528, 2002 C.D.O.S. 6437, 2002 Daily Journal
D.A.R. 8095 (2002).
32
Id., 97 Cal. App. 4th at 1078 (citing City of Glendale
v. Superior Court, 18 Cal. App. 4th 1768, 1776-77 (1993);
TJX Cos., Inc. v. Superior Court, 87 Cal. App. 4th 747,
753 (2001)).
33
Id. at 1080.
34
Id. at 1080-81.
35
Id. at 1078-79.
36
Id. at 1084 (citing City of San Jose v. Superior Court,
12 Cal. 3d 447, 458, 459 (1974)).
37
Id. at 1084, LAB. CODE §1194. Employees with claims
for unpaid wages, overtime pay, and other wage and
hour matters may also take advantage of the “speedy,
informal, and affordable” alternative of filing individual
claims with the California labor commissioner. Cuadra
v. Millan, 17 Cal. 4th 855, 858 (1998), disapproved on
other grounds, Samuels v. Mix, 22 Cal. 4th 1, n.4 at 16
(1999); LAB. CODE §98.1.
Sav-On, 97 Cal. App. 4th at 1082.
39
Belazi v. Tandy Corp., Orange County Superior Court
Case No. 00CC03817 (May 23, 2002).
40
Id. The description of the position of the parties is
based upon the transcript of the May 23, 2002, oral argument before Judge C. Robert Thompson on the defendant’s motion to decertify the class.
41
Id.
42
Id. at 22.
43
Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000).
44
Cortez v. Purolator Air Filtration Prods. Co., 23 Cal.
4th 163 (2000).
45
Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 794
(1999).
46
The author is indebted to her sometime opposing
counsel, René L. Barge, of Spiro Moss Barness Harrison & Barge, for the articulation of the plaintiffs’
perspective.
47
Cortez, 23 Cal. 4th at 178-79.
48
Corbett v. Superior Court,, 101 Cal. App. 4th 649
(2002).
49
Kraus v. Trinity Mgmt. Servs., Inc., 23 Cal. 4th 116,
138 (2000).
50
Prata v. Superior Court, 91 Cal. App. 4th 1128, 1143
(2001); South Bay Chevrolet v. General Motors
Acceptance Corp., 72 Cal. App. 4th 861, 895-97 (1999);
Bronco Wine Co. v. Frank A. Logoluso Farms, 214 Cal.
App. 3d 699, 720-21 (1989); Lazar v. Trans Union LLC,
195 F.R.D. 665, 673-74 (C.D. Cal. 2000).
51
South Bay Chevrolet, 72 Cal. App. 4th 861.
52
Id. at 899.
53
Bronco Wine Co., 214 Cal. App. 3d 699.
54
Id. at 717-19.
55
Id. at 720.
56
Id.
38
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By Dale H. Oliver and Joseph N. Akrotirianakis
High
Accountability
The enforcement of previous legislation offers
important lessons on how the new
executive certification requirements will be applied
O
n July 30, 2002, in response to the recent wave
of corporate accounting scandals, President
Bush signed into law the Sarbanes-Oxley Act.1
Sections 901 through 906 of Sarbanes-Oxley
are collectively titled the White-Collar Criminal
Penalties Enhancement Act of 2002. The WCCPEA
requires CEOs and CFOs to certify the accuracy of corporate financial statements required to be filed with the
SEC. The act also imposes tough criminal penalties on
senior executives of companies found to have committed
accounting fraud or to have failed to “fairly present” their
company’s financial condition in reports filed with the
SEC.2 It remains to be seen whether the newly required
certifications represent significantly increased exposure
for these senior executives, but analogous experience
with longstanding certification requirements for senior
executives of government contractors provides insight as
to how corporate officers can best survive in a business climate now fraught with potential pitfalls.
In the mid-1980s, like today, newspaper headlines
screamed allegations of fraudulent business practices.
The mid-1980s uproar stemmed from charges that federal
government defense contractors were intentionally including unallowable costs in proposals for government reimbursement of overhead expenses. In response, Congress
passed several laws in part aimed at punishing those who
attempted to defraud the federal government. One such
provision is Section 911(a)(1) of the National Defense
Authorization Act for Fiscal Year 1986.3 This section
requires a senior executive of a government contractor to
certify, to the best of his or her knowledge and belief,
that all costs included in an indirect cost proposal were
allowable under the cost principles of the Federal
Acquisition Regulation and its supplements.4 This certificate was commonly referred to as the Weinberger CertiDale H. Oliver is a partner and Joseph N. Akrotirianakis is
an associate in the Los Angeles office of Quinn Emanuel
Urquhart Oliver & Hedges LLP. Oliver and Akrotirianakis specialize in government investigations and business litigation.
ficate, after then-Secretary of Defense Caspar
W. Weinberger, at whose insistence this
requirement was first promulgated as a regulation.
Even then the idea of government contractor certification was not a novel one. The
Contract Disputes Act of 1978 (CDA),5 which
governs contract disputes with the government, has, since its enactment, provided that
the new WCCPEA era. Still, before the wide
reach of cer tification requirements, and
despite the challenges of proving the mens
rea requirements contained in federal criminal statutes, corporate officers have been
held criminally liable for violations committed
by other employees under what has become
known as the responsible corporate officer
doctrine.10 Mental state elements may be
and the duties shown to accompany that title.
In essence, the defendant is held liable for
what he or she should have known given his
or her title within the organization and the
duties that accompany that position in the
context of the relevant regulatory scheme.14
In United States v. Dee,15 the U.S. Court of
Appeals for the Fourth Circuit sanctioned
what is likely the broadest imposition of con-
GOVERNMENT defense contractors have been confronted
with certification requirements for more than 20 years, and
now the WCCPEA extends similar liability to the CEOs and CFOs
of nearly all companies required to report to the SEC.
all claims against the government that exceed
$100,000 must be accompanied by a certification that:
• The “claim is made in good faith.”
• The data supporting the claim “are accurate and complete to the best of [the] knowledge and belief” of the certifier.
• “[T]he amount requested accurately
reflects the contract adjustment for which
the contractor believes the government is
liable.”
• “[T]he certifier is duly authorized to certify the claim on behalf of the contractor.”6
The purpose of a certification requirement such as that imposed by the CDA is to
trigger potential liability for a fraudulent
claim.7 Criminal liability can ensue.
As with the new WCCPEA, the regulation implementing the Weinberger Certificate
requirement mandates that the certificate be
executed by a company’s senior executives,
who personally face potential criminal liability if the representations contained in the certification are shown to be inaccurate.8 A senior
executive who files a false Weinberger
Certificate may face a significant monetary
fine as well as five years’ imprisonment.9
Use of Certification Provisions
Government defense contractors have been
confronted with certification requirements
for more than 20 years, and now the WCCPEA
extends similar liability to the CEOs and CFOs
of nearly all companies required to report to
the SEC. Issues that have arisen in the defense contracting context provide guidance in
established pursuant to this and related doctrines through factors other than proof of
actual knowledge on the part of corporate
officers themselves.
The responsible corporate officer doctrine grew out of the U.S. Supreme Court’s 54 decision in United States v. Dotterweich.11
The Court in Dotterweich addressed whether
a corporate president could be held criminally liable for a corporation’s sale of adulterated or misbranded drugs in violation of a
misdemeanor provision of the Food, Drug,
and Cosmetic Act.12 Because the FDCA section under which the officer was prosecuted
contained no express mental state requirement, the Court held that an individual acting
on behalf of a company who was even
“remotely entangled in the proscribed shipment” could be held strictly liable for the
alleged violation.13
Attorneys representing corporate officer
defendants have argued—generally successfully to date—that the responsible corporate officer doctrine should apply only in
cases, such as Dotterweich, that involve misdemeanor prosecutions under strict liability
statutes like the FDCA. A few prosecutors,
however, have won felony convictions of corporate managers and executives in circumstances in which the proof establishing the
requirement of criminal “knowledge” was
based on little more than the executive’s title
alone. In prosecutions brought under federal
environmental criminal laws, for example,
jurors have been persuaded to infer criminal
knowledge based on a corporate officer’s title
structive knowledge in the context of a federal
criminal statute that expressly requires proof
of a knowing violation. In Dee, three individuals were charged with and convicted of violating the Resource Conser vation and
Recovery Act16 by knowingly “storing, treating and disposing of hazardous wastes” at
the chemical plant where one of the defendants was “responsible for operations and
maintenance.”17 Two of the defendants were
superiors of the third defendant, and they
had no direct involvement in the commission
of the acts charged. The defendants appealed
their convictions and raised, among other
issues, a challenge to the jury instructions.
The Fourth Circuit held that “[a]s a whole, the
instructions ‘fairly and adequately state[d]
the pertinent legal principles involved.’”18 The
jury in Dee had been instructed that:
Among the circumstances you may
consider in determining the defendant’s knowledge are their positions in
the organization, including their
responsibilities under the regulations
and under any applicable policies. Thus
you may, but need not, infer that a
defendant knew facts which you find
that they should have known given their
positions in the organization, their relationship to other employees, or any
applicable policies or regulation. Again,
this is only one factor which you may
consider in determining whether the
government has established knowledge beyond a reasonable doubt….19
Far reaching as such an instruction is, it
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still requires the government to prove a
“responsible relationship” between a defendant’s position and the conduct alleged.
Convictions of corporate officers have also
been upheld under statutes requiring a knowing violation based on the substitution of conscious avoidance of knowledge in place of
actual knowledge. United States v. Hanlon20
involved a prosecution of a corporation’s president, COO, and attorney for, among other
offenses, “knowingly” making false statements in connection with obtaining loans
from a federally insured bank.21 The defendants conceded that a fraudulent scheme
existed (undertaken by others, who fled prosecution) but asserted that their preparation of
various false documents constituted unknowing participation in illegal acts. All three defendants were convicted.22
On appeal, the defendants claimed that
the government had presented insufficient
evidence of guilty knowledge. At trial, the
court had given a “conscious avoidance”
instruction, also known as an ostrich or, within
the Ninth Circuit, a Jewell23 instruction. The
court instructed the jury that:
The element of knowledge of a given
fact under this false statement or overvalued security charge may be satisfied
by proof that a defendant acted with
reckless disregard of what the truth was,
unless he actually believed the contrary to be true. One may not deliberately close his eyes to what otherwise
would have been obvious to him.24
The Second Circuit upheld the convictions, holding that “a finding of guilty knowledge may not be avoided by a showing that
the defendant closed his eyes to what was
going on about him.”25 The appellate court
stated that “‘see no evil’ is not a maxim in
which the criminal defendant should take
any comfort.”26
The WCCPEA’s certification requirement
increases the liability that CEOs and CFOs
would otherwise face because, in the context of SEC reporting accuracy requirements,
it reaches even beyond the knowledge
instruction given in Dee. The WCCPEA’s certification provision even eliminates the need
to establish knowledge by proving a “responsible relation” between a corporate officer
defendant’s title and the criminal conduct
alleged. Indeed, the WCCPEA instead creates 1) a responsible relation between a company’s most senior officers and the accuracy
of the company’s financial statements, and
2) a duty, within the scope of this prescribed
responsibility, to ensure personally that the
company’s reports to the SEC “fairly present”
the company’s financial condition.
As with the new WCCPEA, the Weinberger Certificate requirement enhanced the
government’s ability to prove criminal knowledge on the part of a certifying corporate
executive without proving actual knowledge.
Through the use of certifications, the government can avoid difficulties it might otherwise face in establishing a criminal statute’s
mental state requirement. By creating statutory responsibilities and duties by title alone,
the certification requirement disposes of making preliminary inquiry into an officer’s duties
and responsibility to infer knowledge that
should accompany a title. The available
avenues for establishing the requisite mens
rea under the False Statements Act (FSA)27
illustrate the potential exposure senior executives will face under the new WCCPEA provisions.
A violation of the FSA may be established
through proof that the defendant had the specific intent to make a false or fraudulent statement. Much lesser showings, however, have
been held sufficient to establish that a defendant “knowingly and willfully” executed a
false certification in violation of the FSA.28
As in Hanlon, this requirement is also satisfied by proof of a conscious purpose to avoid
learning the truth, indicating a “deliberate
ignorance.” 29 Prosecutors frequently request—and, when potentially applicable,
receive—a Jewell or conscious avoidance jury
instruction.30 The purpose of such an instruction is “to prevent [the defendant] from circumventing criminal sanctions merely by
deliberately closing his eyes to the obvious
risk that he is engaging in unlawful conduct.”31
Such instructions have long been held to be
acceptable in prosecutions under the FSA.32
Some defendants have attempted to avert
criminal liability by claiming reliance on
expert advice. The so-called reliance on expert defense in FSA prosecutions, however,
is held to apply only when the defendant can
demonstrate that his or her accountant or
attorney was presented with all relevant facts,
and the defendant was “specifically advised”
as to “the course of conduct taken.”33 The
same standard can be expected to apply under
the new WCCPEA.
Practical Considerations for
Sarbanes-Oxley Compliance
With the history of prosecutions under the
FSA and the certification requirements of
the current legislation, corporate officers
must undertake particularly conscientious
measures to protect themselves against the
possibility of criminal liability. The investigations and prosecutions of senior government
contractor officials under the FSA and similar statutes provide insight into the potential
criminal liability created by the new legislation’s requirement of the “fair” presentation
of financial statements.
This Los Angeles Lawyer MCLE selfstudy test is sponsored by WEST.
MCLE Test
No. 110
The Los Angeles County Bar Association
certifies that this activity has been approved for Minimum Continuing Legal
Education credit by the State Bar of
California in the amount of 1 hour.
1. The White-Collar Criminal Penalties Enhancement Act of 2002 (WCCPEA) was enacted
as Sections 901 through 906 of the SarbanesOxley Act of 2002.
True.
False.
2. The WCCPEA requires senior corporate officials
to certify financial statements filed with the SEC
and imposes tough criminal penalties for noncompliance.
True.
False.
3. The certification requirement found in Section
911(a)(1) of the National Defense Authorization
Act for Fiscal Year 1986 requires a senior executive of a government contractor to certify, to the
best of his or her knowledge and belief, that all
costs included in an indirect cost proposal are
allowable under the cost principles of the Federal
Acquisition Regulation and its supplements.
True.
False.
4. The certification requirement established by
the National Defense Authorization Act for Fiscal
Year 1986 is referred to as the Weinberger Certificate after former U.S. District Judge Jacob
Weinberger of the Southern District of California.
True.
False.
5. The Weinberger Certificate requirement
effectively allowed the government to prove
criminal “knowledge” on the part of a certifying
corporate executive without proving actual
knowledge.
True.
False.
6. The Contract Disputes Act (CDA) was enacted
in:
A. 1976.
MCLE Answer Sheet #110
B. 1982.
C. 1986.
7. The certification provision of the CDA requires
an authorized representative of a federal government contractor to certify that a claim against
the government is:
A. True and correct, based on the
certifying officer’s information and belief.
B. Accurate and complete.
C. Accurate and complete to the best of
the certifying representative’s knowledge
and belief.
8. In the past, corporate officers often have
been held criminally liable for “knowing” violations of federal criminal laws under what has
become known as the responsible corporate
officer doctrine.
True.
False.
9. The responsible corporate officer doctrine
finds its roots in the U.S. Supreme Court’s decision in:
A. Planned Parenthood of Southeastern
Pennsylvania v. Casey.
B. Friends of The Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc.
C. United States v. Dotterweich.
D. Marbury v. Madison.
10. The broadest imposition of constructive or
implied knowledge in the context of a federal
criminal statute expressly requiring proof of a
knowing violation may be found in:
A. United States v. Bussey.
B. United States v. Dee.
C. United States v. Hanlon.
D. United States v. Jewell.
11. A Jewell instruction permits a finding of a
knowing violation of law when the jury finds
beyond a reasonable doubt that the defendant
was aware of a high probability of the existence
of a certain fact and deliberately avoided learning the truth.
True.
False.
12. The purpose of a Jewell instruction is to
prevent defendants from avoiding criminal liability
by deliberately closing their eyes to the obvious
risk that they are engaging in unlawful conduct.
True.
False.
13. The purpose of certification requirements
such as those imposed by the CDA, the Weinberger Certificate, and the WCCPEA is to trigger
potential liability for a fraudulent claim.
True.
False.
14. Certification provisions such as those contained in the WCCPEA allow the government to
circumvent difficulties it might otherwise face in
establishing a criminal statute’s mental state
requirement by creating statutory responsibilities
and duties that accompany a corporate official’s
title alone.
True.
False.
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Law Firm/Organization
15. A violation of the federal False Statements
Act (FSA) must be established through proof of
a defendant’s specific intent to make a false or
fraudulent statement.
True.
False.
16. The “reliance on expert” defense has, in the
context of FSA prosecutions, been held to apply
only when the defendant proves:
A. His or her accountant or attorney was
presented with all relevant facts.
B. He or she was specifically advised as to
the conduct actually undertaken.
C. Both A and B.
17. The WCCPEA certification requirement provides that:
A. Certain reports filed with the SEC must
be accompanied by a written statement by
a reporting company’s chief executive
officer and chief financial officer or
equivalent.
B. Certain reports filed with the SEC “fairly
present” the reporting company’s financial
condition in all material respects.
C. Willful violations of the certification
requirement are punishable by fines not to
exceed $5 million or imprisonment for not
more than 20 years, or both.
D. All of the above.
18. In the context of SEC reporting requirements, accounting is somewhat subjective
because different approaches are often available as appropriate accounting treatments.
Therefore, statements concerning a corporation’s financial condition should plainly describe
the chosen accounting methodology.
True.
False.
19. The SEC’s proposed rule implementing the
certification requirements under the SarbanesOxley Act requires the establishment and maintenance of internal controls to record, process,
summarize, and report financial data.
True.
False.
20. Which of these corporate compliance programs will reduce the risk that accounting errors
may later be characterized as corporate malfeasance?
A. The destruction of source documents
used in auditing and reporting.
B. “See no evil” programs in which
corporate officers delegate corporate
auditing and reporting responsibilities to
subordinates.
C. Tiered certifications by subordinates
attesting to compliance with applicable
laws and regulations.
D. All of the above.
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Mark your answers to the test by checking the
appropriate boxes below. Each question has
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1.
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2.
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3.
■ True
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4.
■ True
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5.
■ True
6.
■A
■B
■C
7.
■A
■B
■C
8.
■ True
9.
■A
■B
■C
■D
10.
■A
■B
■C
■D
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
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14.
■ True
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15.
■ True
16.
■A
■B
■C
17.
■A
■B
■C
18.
■ True
19.
■ True
20.
■A
■ False
■ False
■ False
■D
■ False
■ False
■B
■C
■D
More than one approach is often available as an appropriate accounting treatment.
In very few circumstances is there simply
one right answer, and choosing among available options is somewhat subjective.
Therefore, the focus of the WCCPEA and
the required certification should be defined
in terms of adequate disclosure. Senior officials must continually keep in mind the importance of disclosure when they are seeking to
minimize their exposure. Crucial to an adequate representation of financial statements
is disclosure of choice of accounting methodology and the operative facts incident to that
choice. This emphasis on disclosure accordingly bespeaks caution: When in doubt, a full
description of the accounting decision underlying the financial statements is required.
Officials should avoid being “cute” when
describing the company’s financial condition.
In addition, though purchasers of securities may have differing levels of expertise in
reviewing financial statements, corporate officials should consider an approach that aims
for the lowest common denominator when describing their corporate finances. Senior executives can reduce the risk of being viewed as
obscuring a company’s financial condition by
expressing it in understandable and simple
terms accompanied by disclosure of any qualification of the company’s financial statements.
Courts will likely reference the average purchasing public in assigning liability for misstatement.34 Ambiguity and vague statements
may be considered smoke screens for deceptive practices—and under the WCCPEA,
where there is smoke, there is statutorily prescribed fire. Clarity is therefore at a premium
in seeking to avoid liability.
The certifications that are required by the
WCCPEA may be executed to the best of the
knowledge and belief of signing CEOs and
CFOs. Certifying executives cannot, however, evade liability by avoiding acquisition of
knowledge. The courts will likely impose a
duty on these individuals to be reasonably
informed of the material financial facts necessary to prepare publicly disseminated financial information. As such, certifying officers
have a duty to undertake a reasonable investigation of the company’s financial condition.
Indeed, the SEC’s proposed rule implementing the certification requirements of the
Sarbanes-Oxley Act contemplates that signing
officers both establish and maintain internal
controls to record, process, summarize, and
report financial data.35 Under the certification requirement, an officer would vouch that
the company implemented “such internal
controls to ensure that material information
relating to the issuer and its consolidated
subsidiaries is made known to such officers
by others within those entities” and that these
internal controls are effective. Certifying
senior executives cannot simply pass along
these new obligations to subordinates.
Senior corporate officials should not be
required, however, to be guarantors of the
accuracy of the company’s financials—and
innocent mistakes are bound to occur. To
reduce the risk that these errors can later
be characterized as “corporate malfeasance,”
companies should employ compliance programs tailored to their SEC reporting requirements. Such programs can include accounting training programs, tiered certifications
by subordinates responsible for financial
reporting, strengthened internal auditing,
and formal inquiries of advisers. The latter
should involve reports by accounting, legal,
and financial advisers, specific discussion of
close questions or judgmental areas, and
mandatory written advice of outside advisers regarding the propriety of accounting
judgments and the adequacy of the disclosures. The key to these programs is the manifestation of reasonable and well-intentioned
good faith compliance. Such efforts will establish credibility, and that credibility will assist
in avoiding criminal prosecutions in the first
instance. A company should never allow itself
to be seen as being at the low end of the compliance spectrum when judged against other
companies also subject to the reporting strictures of the Sarbanes-Oxley Act.
The duty imposed by the act’s certification
requirement most probably does not end
once a financial statement is submitted. Upon
discovery that a statement contains an error,
immediate correction and disclosure of the
correction will likely be required. Otherwise,
silence with knowledge of an inaccuracy can
be characterized as an ongoing conspiracy to
mislead. Allegations of this type can entangle
people who had no participation in the original omission or inaccuracy. Restated financials are certain to become the norm in the
wake of the new law.
Early indication of any potential errors in
financial statements must be assiduously
investigated. Government contractors discovered, sometimes through painful experience, the advantages of being proactive in
investigating possible accounting errors. A
company’s legal position (and that of its senior
of ficials) in any subsequent litigation is
enhanced significantly if the company has
aggressively sought to understand and, if
required, to correct financial irregularities. An
early effort to investigate and correct errors
also helps establish the company’s credibility
with prosecutors and, if necessary, the jury.
An investigation based upon reasonable
suspicion that a problem exists should be
formal and thorough. Individuals not directly
involved in the problem should conduct the
review and, if possible, the investigation
should be under the direction of the company’s counsel. A strong and competent internal audit structure within the company is
useful in this activity. An early investigation
fosters the required preservation of documents, an understanding of the possible problems presented, and the possibility of taking
remedial action before being compelled to
do so in the face of a criminal prosecution.
Truly, being forewarned is to be forearmed.
The Prospect of a Government
Investigation
The WCCPEA’s creation of a duty for CEOs
and CFOs means that certifying senior officials will automatically be considered—and
will likely be targeted—in any contemplated
criminal prosecution of their company for
omissions or inaccuracies in financial statements. This fact alone may substantially
enhance the government’s prosecutorial
enthusiasm. The inclusion of the most senior
officials of a company substantially increases
the publicity value of a prosecution—and the
new legislation provides ready identification
of “live bodies” on whom the government
can focus in pursuing such a prosecution.
The inclusion of senior officials also substantially enhances the ability of the government to pressure defendants to settle, particularly given the severity of the criminal
sanctions that can be sought against these
individuals. All these factors will promote the
expenditure of resources by the government
in pursuing prosecutions under the new law.
Often, initial discussions with and disclosures to federal investigators establish credibility and head off prosecutions. The government’s prosecutorial resources are limited,
and prosecutors can be expected to pick the
easiest targets. An early conclusion that company officials have acted reasonably will substantially dampen prosecutorial zeal.
Reasonable and reasoned responses in
advance of the formal initiation of criminal
prosecution may go a long way toward ensuring that a company and its senior officials
can avoid being caught up in a prosecution.
To be prosecuted is to lose, even if the company and its officials ultimately prevail at trial.
Putting together a response team when faced
with the knowledge of prosecutorial interest
is essential and should be done immediately.
The phenomenon of focusing on senior
company officials in seeking to ensure accurate and complete financial statements is not
going to go away, even as the headlines
recede from the front pages of national newspapers. New cases under the FSA and the
False Claims Act36 arising out of government
contracts are still being actively pursued and
prosecuted today, almost 20 years after the ini-
tial publicity that led to the enactment of
those laws. The bureaucracy for prosecuting
such cases is in place, and government expertise is assembled. Thus, government contractors have come to live with the fact that
their senior executives face potential criminal
liability for improper certifications. Their corporate peers must now follow their lead,
because the Sarbanes-Oxley Act creates a
new environment in which the personal criminal exposure of senior corporate executives
has increased.
■
213.251.5486 office
310.466.7589 cell
Maturing Cases
Richard W. Swartz
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068391
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1
The Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204,
116 Stat. 745.
2
The WCCPEA certification requirements are enacted
as 18 U.S.C. §1350, “Failure of corporate officers to
certify financial reports,” which provides:
(a) CERTIFICATION OF PERIODIC FINANCIAL REPORTS.—Each periodic report containing financial statements filed by an issuer
with the Securities Exchange Commission pursuant to section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a) or
78o(d)) shall be accompanied by a written
statement by the chief executive officer and
chief financial officer (or equivalent thereof) of
the issuer.
(b) CONTENT.—The statement required
under subsection (a) shall certify that the periodic report containing the financial statements
fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act
of 1934 (15 U.S.C. 78m or 78o(d)) and that
information contained in the periodic report
fairly presents, in all material respects, the
financial condition and results of operations
of the issuer.
(c) CRIMINAL PENALTIES.—Whoever—
(1) certifies any statement as set forth in subsections (a) and (b) of this section knowing that
the periodic report accompanying the statement does not comport with all the requirements set forth in this section shall be fined not
more than $1,000,000 or imprisoned not more
than 10 years, or both; or
(2) willfully certifies any statement as set forth
in subsections (a) and (b) of this section knowing that the periodic report accompanying the
statement does not comport with all the requirements set forth in this section shall be fined not
more than $5,000,000, or imprisoned not more
than 20 years, or both.
3
National Defense Authorization Act for Fiscal Year
1986, Pub. L. No. 99-145, 99 Stat. 583 (1986). Section
911(a)(1) of the act was enacted as 10 U.S.C. §2324.
4
See 10 U.S.C. §2324(h); 48 C.F.R. §52.242-4.
5
The Contract Disputes Act of 1978, 41 U.S.C. §§601613.
6
41 U.S.C. §605(c). This requirement is implemented
by 48 C.F.R. §52.233-1(d)(1), which sets forth the language of the required certification:
I certify that the claim is made in good faith;
that the supporting data are accurate and complete to the best of my knowledge and belief;
that the amount requested accurately reflects
the contract adjustment for which the
Contractor believes the Government is liable;
and that I am duly authorized to certify the
claim on behalf of the Contractor.
48 C.F.R. §52.233-1(d)(1)(iii).
7
Skelly & Loy v. United States, 685 F. 2d 414, 418 n.11
(Ct. Cl. 1982); see Fischbach & Moore Int’l. Corp. v.
Anita Rae Shapiro
SUPERIOR COURT COMMISSIONER, RET.
PRIVATE DISPUTE RESOLUTION
PROBATE, CIVIL, FAMILY LAW
PROBATE EXPERT WITNESS
TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649
E-MAIL: [email protected]
http://adr-shapiro.com
FEES: $300/hr
Christopher, 987 F. 2d 759, 763 (Fed. Cir. 1993); Medina
Constr. Ltd. v. United States, 43 Fed. Cl. 537, 547
(1999).
8
See 48 C.F.R. §52.242-4(a)(3) (requiring that the certification be “signed by an individual of the Contractor’s
organization at a level no lower than a vice president or
chief financial officer of the business segment of the
Contractor that submits the proposal”).
9
18 U.S.C. §§287, 1001(a), 3571.
10
The responsible corporate officer doctrine has been
characterized as imposing criminal liability on a corporate officer “if, by virtue of his or her position and
authority within the company, the defendant had the
power to prevent or correct the conduct which gave rise
to the violation.” Barbara DiTata, Proof of Knowledge
under RCRA and the Use of the Responsible Corporate
Officer Doctrine, 7 FORDHAM ENVTL. L.J. 795, 806-07
(1996).
11
United States v. Dotterweich, 320 U.S. 277 (1943).
12
21 U.S.C. §§301-392.
13
Dotterweich, 320 U.S. at 284.
14
See, e.g., United States v. Johnson & Towers, Inc., 741
F. 2d 662, 670 (3d Cir. 1984) (stating, in a prosecution
under federal environmental law, that knowledge “may
be inferred by the jury as to those individuals who
hold the requisite responsible positions with the corporate defendant”).
15
United States v. Dee, 912 F. 2d 741 (4th Cir. 1990).
16
The Resource Conservation and Recovery Act, 42
U.S.C. §§6901-6987.
17
Dee, 912 F. 2d at 743.
18
Id. at 746 n.8 (citing Hogg’s Oyster Co. v. United
States, 676 F. 2d 1015, 1019 (4th Cir. 1982)).
19
Jane F. Barrett & Veronica M. Clarke, Perspectives on
the Knowledge Requirement of Section 6982(d) of RCRA
after United States v. Dee, 59 GEO. WASH. L. REV. 862,
872 (1991) (quoting district court record in Dee)
(emphasis added).
20
United States v. Hanlon, 548 F. 2d 1096 (2d Cir.
1977).
21
This is a violation of 18 U.S.C. §1014.
22
Hanlon, 548 F. 2d at 1098-99. In addition to convictions
under 18 U.S.C. §1014, the defendants were convicted
of conspiracy (18 U.S.C. §371); aiding and abetting the
receipt of a bribe by bank officers (18 U.S.C. §§2, 215);
and wire fraud (18 U.S.C. §1343).
23
United States v. Jewell, 532 F. 2d 697 (9th Cir. 1976).
In Jewell, the evidence showed that the defendant and
a friend declined the offer of a stranger they met in
Mexico to buy marijuana but accepted $100 from him
to drive a car across the border to Los Angeles. At
trial the defendant testified that he was aware that the
vehicle had a secret compartment in the trunk and
that he checked the glove box, under the seat, and
the trunk because he thought there was probably something illegal in the car. The defendant also testified, however, that he did not investigate the secret compartment.
See id. at 699 n.2. The Ninth Circuit upheld the trial
court’s jury instruction permitting the government to
prove the defendant’s knowledge of possession by
establishing that the defendant had “made a conscious
purpose to disregard the nature of that which was in the
vehicle, with a conscious purpose to avoid learning
the truth.” See id. at 700.
24
Hanlon, 548 F. 2d at 1100 n.7 (emphasis added).
25
Id. at 1101.
26
Id.
27
The False Statements Act, 18 U.S.C. §1001.
28
It should be noted that, although the FSA requires
proof that a false statement is made both “knowingly
and willfully,” the new WCCPEA imposes criminal liability when a senior executive commits a “knowing” violation of the certification provision—and there are separate, heightened penalties when the violation is
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“willful.”
29
See United States v. Schaffer, 600 F. 2d 1120, 1122 (5th
Cir. 1979) (“The requirement of an intent to deceive coupled with reckless indifference to the truth or falsity of
the statement is the equivalent of knowledge.”).
30
The Ninth Circuit today provides a model Jewell
instruction:
You may find that the defendant acted knowingly if you find beyond a reasonable doubt
that the defendant was aware of a high probability that [e.g., drugs were in the defendant’s
automobile] and deliberately avoided learning
the truth.
You may not find such knowledge, however, if you find that the defendant actually
believed that [e.g., no drugs were in the defendant’s automobile], or if you find that the defendant was simply careless.
9TH CIR. CRIM. JURY INSTR. §5.7 (2000 ed.).
31
United States v. Evans, 559 F.2d 244, 246 (5th Cir.
1977).
32
See, e.g., United States v. Lennartz, 948 F. 2d 363, 36970 (7th Cir. 1991); Evans, 559 F. 2d at 246 (“Construing
‘knowingly’ in a criminal statute to include willful blindness to the existence of a fact is no radical concept in
the law.”).
33
United States v. McLennan, 563 F. 2d 943, 946 (9th
Cir. 1977) (Duniway, J., with Choy, J., concurring specially in the result); see also United States v. Johnson,
730 F. 2d 683, 686 (11th Cir. 1984).
34
Cf. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438,
450 (1976).
35
See Proposed Rule: Certification of Disclosure in
Companies’ Quarterly and Annual Reports, 17 C.F.R.
§§232, 240, 249 (Release No. 34-46300, S7-21-02) (proposed Aug. 2, 2002).
36
The False Claims Act, 31 U.S.C. §§3729 et seq.
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BY RANDOLPH C. VISSER, JOHN J. McALEESE III, and ALISON CHASE MANN
VOLATILE
COMBINATIONS
THE EVENTS OF SEPTEMBER 11 MAY HAVE INCREASED THE
EXPOSURE OF CHEMICAL COMPANIES TO LAWSUITS BASED
ON THE USE OF THEIR PRODUCTS IN TERRORIST ACTS
I
f it were not clear before, the events of
September 11, 2001, removed any doubt
among the residents of the United States
that terrorism inside the nation’s borders
is no longer a remote possibility. The United
States now accepts the fact that terrorist
attacks are a constant threat. However, as
illustrated by the 1993 World Trade Center
and 1995 Oklahoma City bombings, terrorism
is neither new to the nation nor limited to
the use of hijacked airplanes. In both earlier
attacks, ter rorists employed seemingly
innocuous chemicals, used primarily in agriculture, to produce highly explosive and dangerous weapons. In the wake of those attacks,
victims sued chemical manufacturers and
distributors.
On the basis of these incidents, attorneys
representing entities in the chemical industry
face critical questions: Given the consistent
threat of terrorist attacks and the previous use
of chemicals in prior attacks, what are the
legal responsibilities of chemical companies
to aid in the prevention of future attacks and
how can these companies avoid potential liability? The answer to these questions lies in
an examination of several factors:
1) A chemical company’s legal right to inquire
of its customers.
2) A chemical company’s duty to inquire of its
customers.
3) A chemical company’s duty to protect its
site.
4) A chemical company’s duty to comply with
potentially applicable federal and state
statutes.
5) Legislative reaction that may impose new
responsibilities and liabilities upon chemical
companies.
Although a chemical company may, given
the current political climate, want to inquire
of its customers more thoroughly, its legal
right to do so may be limited by civil rights
laws. For example, Sections 1981 and 1982 of
the Civil Rights Act1 present questions regarding the right of a vendor to inquire of its customers. Section 1981, which addresses the
making and enforcement of contracts, states,
“All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts.…”2 Section 1982 states, “All citizens of the United States shall have the same
right, in ever y State and Territor y, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real
and personal property.”3
When making a claim under these provisions, a plaintiff must plead three elements:
Randolph C. Visser is a partner in the Los
Angeles office of Morgan, Lewis & Bockius
LLP. John J. McAleese III is a par tner in
Morgan Lewis’s Philadelphia office, and Alison
Chase Mann is an associate in the firm’s
Philadelphia office.
RON OVERMYER
1) the plaintiff is a member of a racial minority, 2) the defendant had an intent to discriminate on the basis of race, and 3) the discrimination concerned one or more of the
activities enumerated in the statute (i.e., the
making and enforcing of a contract or refusal
to sell property). Furthermore, case law interpreting these two statutes has created several
controlling principles:
• Both statutes extend to purely private conduct.4
• The statutes apply to national origin as
well as race.5
• The statutes apply to a denial of admittance to a place of business, requesting a
patron to leave a place of business, or a denial
of service.6
• The failure to contract or sell must pertain
to a present desire or attempt to contract or
sell; the statutes do not cover prospective
contracting or selling.7
Because the Civil Rights laws prohibit discrimination on the basis of race or national origin, Sections 1981 and 1982 can affect how a
chemical company inquires about the intent
and background of potential customers. Thus,
liability might arise under these statutes if a
chemical company were only to inquire of
customers who appear to be of Middle Eastern origin. However, the laws do not preclude a denial of service for specific, enu-
merated, nonracially motivated reasons. A
chemical manufacturer may therefore be able
to limit its liability for a civil rights claim by
asking objective questions to every customer.
This policy should protect the interests of the
chemical company while providing a defense
against a claim that its inquiries were based
upon race or national origin.
RIGHTS AND DUTIES OF CHEMICAL COMPANIES
While a chemical company needs to be concerned about whether it may inquire of its customers, at the same time it needs to consider
whether it must inquire of its customers. The
answer to this question lies in the special
relationship that sellers of dangerous products
have with their buyers and their communities.
They owe a duty to not sell their product to
individuals they know or should know will use
the products dangerously.8 While generally “a
defendant has no duty to control the conduct
of another or to warn others endangered by
another’s conduct,” exceptions arise when a
special relationship exists between the defendant and the person whose conduct needs
to be controlled or between the defendant
and the person injured by the third party’s
conduct.9 One type of “special relationship”
occurs when the supplier knows or has reason to know that the user is likely to use the
product “in a manner involving unreasonable
risk of physical harm to himself and others.”10
In these cases, the supplier is subject to liability for physical harm caused by the injurious use.11 Thus, a person owes a duty of care
“not to provide a dangerous instrumentality
to an individual whose use of the instrumentality the supplier knows or has reason to
know will result in injury.”12
The Restatement (Second) of Torts provides further guidance about the liability of
sellers of dangerous products when the products are used in a criminal act by third parties
to injure others. Section 448 of the restatement sets forth:
The act of a third person in committing
an intentional tor t or crime is a
superceding cause of harm to another
resulting therefrom, although the
actor’s negligent conduct created a situation which afforded an opportunity
to the third person to commit such a
tort or crime, unless the actor at the
time of his negligent conduct realized
or should have realized the likelihood
that such a situation might be created
and that a third person might avail
himself of the opportunity to commit
such a tort or crime.
In the Oklahoma City bombing case, the
court used precisely this section to analyze
the conduct of Terry Nichols. The explosive
used in the 1995 bombing was created in part
from two tons of ammonium nitrate fertilizer
purchased by Nichols for $457.58 from a farm
supply company in central Kansas.13
The victims of the bombing brought a
class action against ICI, the manufacturer of
the ammonium nitrate that was allegedly used
to construct the bomb.14 The plaintiffs claimed
that ICI was negligent in making explosivegrade ammonium nitrate available to the perpetrators of the bombing. In analyzing causation, the court stated that causation is
generally a question of fact, but that it
becomes a question of law when a jury cannot reasonably find the required proximate
causal nexus between defendant’s act and
the plaintiff’s injuries. Under Oklahoma law,
the causal nexus is broken when there is a
supervening cause.15 “To be considered a
super vening cause, an inter vening cause
must be: 1) independent of the original act; 2)
adequate by itself to bring about the injury;
and 3) not reasonably foreseeable.”16 As the
court noted, a tortious or criminal act is more
likely to be seen as a supervening cause.17
Relying upon Section 448 of the Restatement (Second) of Torts, the court determined
that a third party’s criminal actions are not
foreseeable simply because of the existence
of a “small fringe group or the occasional
irrational individual, even though it is fore-
seeable generally that such groups and individuals will exist.” The court also noted that
the plaintiffs could point to very few occasions in which ammonium nitrate was used by
terrorists due, in part, to the complexity of
making the bomb and the general unavailability of many of the necessary components.
The court further noted, “We simply do not
believe that this is a group which rises to the
level of a ‘recognizable percentage’ of the
population.”18 The court therefore found that
1) it was unforeseeable that the ammonium
nitrate would be used in the attack, 2) the terrorists’ actions was a superceding cause, and
3) the manufacturer was not liable for the
terrorist act.
In a similar action, individuals injured in
the 1993 World Trade Center bombings filed
a claim against the manufacturers, distributors, and sellers of the fertilizer used in the
bombing for negligently selling their products
to terrorists.19 Count III of the plaintiffs’ complaint stated that the “defendants are liable
because they ‘failed to provide guidelines,
instructions, and/or warnings to their distributors, retailers, dealers or other suppliers
to confirm that buyers in the general and
unrestricted public market have legitimate
and lawful purposes for use of Defendants’
products.’”20
In ruling for the defendants, the court
found that “first, the defendants owed no duty
to warn the middlemen; [and] second, that
plaintiff is unable to allege facts showing that
such a warning would have prevented the
harm.”21 The court noted that the plaintiffs
could not provide a single case to support its
theory that defendants had a duty to warn.22
Rather, the court noted that “no cases, even
under the common law, support the existence of such a duty.”23 The court also found
that the plaintiffs’ “failure to warn” argument
failed because the plaintiffs were unable to
allege facts showing that an adequate warning would have prevented the harm.24
In addition to inquiring of their customers,
chemical companies may also have a duty to
protect their sites.25 When the Federal Court
of Claims addressed this issue in applying
the Federal Water Pollution Control Act, it
failed to impose such a liability on the companies.26 However, at least one state’s supreme
court, the Supreme Court of Alaska, did impose liability on the operators of an explosives storage site for failure to protect that site
when thieves broke into it and caused an
explosion.27
Important guidance for chemical companies came on October 22, 2001, when, in the
aftermath of the events of September 11, the
American Chemistry Council, the Chlorine
Institute, Inc., and the Synthetic Organic
Chemical Manufacturers Association released
newly formulated Site Security Guidelines
for the U.S. Chemical Industry.28 The Executive Summary to the guidelines recognizes
the historical importance of security but also
noted, “During this time of crisis, every effort
is being made to secure chemical manufacturing facilities and safeguard employees and
communities. This attention to safety contributes to national security as many specific
measures adapted to improve safety have the
added benefit of enhancing plant and community security.”29 Similarly, the introduction
to the guidelines states, “In this era of heightened concern about terrorism, sabotage, and
industrial espionage, managers at chemical
facilities may have even more reason to attend
to the security of their companies’ people,
property and information.”30 Counsel to chem-
ical companies or any other site storing hazardous substances or substances that may
be used as implements of terror should be
acutely aware of these guidelines. (See “The
Site Security Guidelines,” this page.)
In addition to general site security issues,
the guidelines also address employee policies and suggest that a company establish
specific hiring protocols in order to avoid hiring someone who may pose a threat. Another
suggestion is to establish protocols for the firing of employees in order to avoid the risk of
disgruntled employees seeking retaliation.
Finally, the guidelines recognize “other areas”
in need of security such as operations (processing information, design diagrams, formulations, recipes, client lists, etc.), spoken
information, documents, and computer networks. Finally, the guidelines also include
helpful samples of site security analysis sheets,
security models, a list of other helpful
resources, and a federal agencies contact list.
CIVIL AND CRIMINAL LIABILITY
A chemical company could be held both civilly
and criminally liable if a chemical release
occurred as a result of a terrorist act on the site
or was perpetrated by an individual who obtained inherently dangerous chemicals from
a site in the United States. First, a company
could be held liable under numerous environmental statutes that impose both civil and
criminal penalties.31 Second, in some cases
more general criminal charges have been
brought against corporations and corporate
officers as a result of industrial disasters.32 For
example, if a chemical facility were the subject of an attack, prosecutors could bring
THE SITE SECURITY GUIDELINES
ON OCTOBER 22, 2001, three chemical industry groups—the American Chemistry
Council, the Chlorine Institute, Inc., and the Synthetic Organic Chemical Manufacturers
Associations—introduced a new set of guidelines for the chemical industry to follow to
enhance site security. In addition to listing the benefits of implementing a site security
program, the Site Security Guidelines for the U.S. Chemical Industry suggest concrete steps
for achieving site security:
1) Conduct a risk assessment of assets (people, information, and property).
2) Conduct a risk assessment of threats, vulnerabilities, and consequences, including
the following:
• Chemical hazards evaluation.
• Process hazard analysis.
• Consequence assessment.
• Physical factors assessment.
• Mitigation assessment.
• Security assessment/gap analysis.
3) Create prevention strategies, including “rings of protection.”
4) Create security management responsibility.
5) Include security as a core value of the company.
6) Create relationships with local, state, and federal law enforcement and other public safety agencies.
7) Maintain detailed records of security incidents.
8) Create an employee hotline for reporting company problems.
9) Train employees and contractors in the company’s security program and methods.
10) Investigate suspicious incidents and security breaches.
11) Establish an emergency response and crisis management plan.
12) Perform periodic reassessments.
After outlining the basic steps to take to ensure general site security, the guidelines
address the methods of securing the physical plant and suggest that companies:
1)
2)
3)
4)
Establish access control (pass cards, I.D. tags, etc.).
Create perimeter control (fences, exterior walls, gates, lighting, etc.).
Consider hiring security officers.
Consider installing a backup power source.—R.C.V., J.J.M., and A.C.M.
criminal charges against the corporation and
its officers for failing to have in place adequate security and safety measures.33
In addition, various civil claims have been
asserted against companies whose products
were involved in terrorists attacks, including
negligence, negligence per se, negligent
entrustment, negligent infliction of emotional
distress, intentional infliction of emotional
distress, products liability, and strict liability
based on an abnormally dangerous activity.34
These cases involving civil claims against
manufacturers touch upon the duty and liability of manufacturers.
For example, in the Oklahoma City bombing case, Gaines-Tabb v. ICI Explosives USA,
Inc., the court dismissed the plaintiffs’ negligence claim, finding that Oklahoma law
requires a showing that “[a]n event or injury
must be that which in a natural and continuous sequence, unbroken by an independent
or supervening cause, produces the event or
injury and without which the event or injury
would not have occurred.”35 Further, the
court agreed with the defendants and found
that “‘[t]he bombing did not occur because
Nichols and McVeigh acquired AN [ammonium nitrate] fertilizer. The bombing occurred
only because of the terrorists’ intent to cause
harm.’”36 The court found that the bombing
was not a foreseeable act and was, therefore,
a supervening cause.
Moreover, the court found that the defendant owed no duty to the plaintiffs “to anticipate and prevent the intentional or criminal
acts of a third party.”37 Although the court
accepted, for purposes of appellate review,
the allegation that ICI knew that ammonium
nitrate was previously used by terrorists,38
the court concluded that foreseeing “the
intentional or criminal acts of third parties was
so slight that reasonable persons in defendant
ICI’s position would disregard it.”39 The court
also rejected negligence per se liability, ruling
that alleged regulatory violations relating to
the sale of explosive material were not the
proximate cause of the plaintiffs’ injuries.40
Using similar reasoning, the Third Circuit,
in Port Authority of New York and New Jersey
v. Arcadia Corporation, dismissed the claims
of the victims of the 1993 World Trade Center
bombing against the companies that manufactured the fertilizer used in the bombing.41
The plaintiffs brought claims for negligence,
products liability, and failure to warn. In
affirming the district court’s dismissal of all
the plaintiff’s claims, the Third Circuit held
that “the manufacturer of a raw material or
component part that is not itself dangerous
has no legal duty to prevent a buyer from
incorporating the material or the part into
another device that is or may be dangerous.…[M]anufacturers have no duty to pre-
vent a criminal misuse of their products which
is entirely foreign to the purpose for which the
product was intended.”42 The court noted
that reasonable foreseeability “‘applies to
those future occurrences that, in light of the
general experience within the industry when
the product was manufactured, objectively
and reasonably could have been anticipated.’”43 The court agreed with the district
court’s conclusion that instances over the previous 50 years in which ammonium nitrate
was used to create an explosive would not
have indicated that the World Trade Center
bombing was more than “a remote or theoretical possibility.”44
While ammonium nitrate is not in and of
itself dangerous without additional manipulation, the Fifth Circuit, nevertheless, followed vir tually the same analysis as the
Gaines-Tabb and Port Authority courts when
it determined that the federal government
was not liable for injuries caused by an inherently dangerous explosive that was unlawfully taken by a serviceman from an Air Force
base. In that case, Garza v. United States,45 the
plaintiffs sued the U.S. government under
the Federal Tort Claims Act for injuries sustained by their minor son that were caused by
the explosive. A serviceman found an unused
explosive, stole it from the base (which had
no distribution, use, or return procedures for
the explosives), and gave it to his civilian
roommate. The Fifth Circuit agreed with the
trial court that, given the high degree of care
imposed by the law to those who handle
explosives, the government was negligent in
its care.46 The court found, however, that the
plaintiffs could not show that the government
was the proximate cause of their son’s injuries
because the serviceman’s theft was an intervening cause, thus making the injuries unforeseeable to the defendant.47 According to the
court, “Evidence of past thefts in that area, or
in that type of military operation, or some
meaningful indication of the likelihood of
thefts was required before such a foreseeability finding could be made.”48
A court could still find the manufacture,
storage, or sale of a hazardous substance to
be an ultrahazardous or abnormally dangerous activity and, therefore, subject to a strict
liability analysis, which does not require a
finding of foreseeability.49 However, most
courts, in assessing civil liability when a product is used by a third party in a criminal or tortious manner, undertake a foreseeability
analysis to determine liability.50 Courts seem
to absolve manufacturers and distributors in
the absence of evidence that the supplier
knew or should have known that the third
party would put others at risk.
These cases involve the conduct of a corporate defendant. However, a corporate offi-
cer could also be held individually liable under
the responsible corporate officer doctrine.51
In practice, the government has tried to link
the corporate officer’s responsibilities to criminal conduct in such a way as to permit a jury
to infer that the corporate officer knew of the
violation. Indeed, in every case in which a
conviction has been upheld under the responsible corporate officer doctrine, the government established that the corporate officer
either had actual knowledge, or deliberately
shielded himself from knowledge, of the
unlawful activity of his subordinates.52
At least one court, however, has recognized the accused executive’s right to raise as
an affirmative defense his or her own inability to prevent the offense: “The theory upon
which responsible corporate agents are held
criminally accountable for ‘causing’ violations
of the Act permits a claim that a defendant was
‘powerless’ to prevent or correct the violation to ‘be raised defensively at a trial on the
merits.’”53 Thus, a corporate officer could
arguably rebut the claim that he or she is
responsible for a terrorist act by arguing that
he or she was powerless to prevent the act.54
Both the Oklahoma City bombing and the
World Trade Center bombing took place in
the recent past. Similar conduct by terrorists (whether native or foreign) is becoming
more common and arguably more expected.
Given the terrorist attacks on September 11,
the standard for determining what actions
an individual or entity should reasonably recognize as foreseeable will likely change substantially. While the conduct of sellers, manufacturers, and middlemen has been excused
as unforeseeable in the past, the same conduct
may well be considered foreseeable (or conduct that an individual or entity “should have
realized” would result in injur y) after the
events of September 11.
LEGISLATIVE REACTION
The recognition that these acts are becoming
frighteningly more common is evidenced by
two initiatives, one on the federal level and the
other on the state, to further protect the public from potential chemical attacks. In
Washington, Senator Corzine introduced a
bill into the Senate on October 31, 2001, titled
the Chemical Security Act of 2001.55 And on
February 21, 2002, Assembly member Jackson introduced into the California Assembly
the California Chemical Security and Community Protection Act,56 a bill similar to the Corzine legislation. Both bills recognize the public health and safety threats associated with
accidents at, terrorist and chemical attacks
on, and theft of dangerous chemicals from
chemical sources. Although the California legislation did not pass in this year’s session and
it appears unlikely that the federal bill will be
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enacted this year, counsel representing chemical companies should become familiar with
the proposed legislation.
Although a chemical company’s right to
inquire of a customer to determine if the customer has a legitimate use for its product is
limited by federal civil rights laws, companies may, in fact, have a duty to make such
inquiry. Likewise, companies may have a duty
to take steps to protect their site from theft or
attack, as indicated by the promulgation of
numerous industry guidelines and pending
federal and state legislation. In the past, the
majority of courts have failed to impose criminal or civil liability for harm caused by the
criminal acts of third parties unless that thirdparty act was foreseeable. However, courts
must now determine whether the events of
September 11, 2001, when combined with
the 1995 Oklahoma City and 1993 World
Trade Center bombings and the political trend
to protect the public from potential chemical
terrorism, have served to put all industries
that deal in hazardous substances on notice
to consider the foreseeability of their products
being used in a terrorist attack.
If courts determine that terrorist acts
involving the use of once seemingly innocuous chemicals are now foreseeable, and that
all industries that deal in hazardous substances are now on notice of that foreseeability, counsel representing these companies must be aware that action that once
broke the causal chain and thus severed liability may now fail to exonerate chemical
manufacturers. Chemical manufacturers,
however, may be able to limit their liability by
objectively inquiring of all customers to prevent misuse of the product, complying with
the suggestions and guidelines set forth by
organized bodies representing the chemical
and similar industries, and by complying with
state and federal statutes and regulations. ■
1
Civil Rights Act of 1964, amended by the Civil Rights
Act of 1991, 42 U.S.C.S. §§1981 et seq.
2
Id., 42 U.S.C.S. §1982.
3
Id.
4
See Runyon v. McCrary, et al., 427 U.S. 160 (1976).
5
See Shen v. A&P Food Stores, 1995 WL 728416 (E.D.
N.Y. 1995).
6
See Watson v. Fraternal Order of Eagles, 915 F. 2d 235
(6th Cir. 1990).
7
See Morris v. Office Max, Inc., 89 F. 3d 411 (7th Cir.
1996).
8
See Jacoves v. United Merch. Corp., 11 Cal. Rptr. 2d
468 (Ct. App. 1992).
9
See id. at 484.
10
Id.at 485.
11
See id.
12
Id.
13
See Charles. C. Sinnard, Note, Growing Crime: The
Rising Use of Fertilizer for Illegal Purposes and the Need
for Stricter Regulations Concerning Its Sale and Storage,
4 DRAKE J. AGRIC. L. 505, 510 (Winter 1999).
14
See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.
3d 613 (10th Cir. 1998), aff’g 995 F. Supp 1304 (W.D.
Okla. 1996).
15
See Gaines-Tabb, 160 F. 3d 613, 620.
16
Id.
17
See id. at 621.
18
Id. (referencing RESTATEMENT (SECOND) OF TORTS
§448 cmt. b).
19
See Port Authority of New York and New Jersey v.
Arcadia Corp., 189 F. 3d 305 (3d Cir. 1999), affirming
991 F. Supp. 390 (D. N.J. 1997).
20
Port Authority of New York and New Jersey, 189 F.
3d 305, 310 (quoting Plaintiff Complaint).
21
Id. at 319.
22
See id.
23
Id.
24
See id. at 320.
25
See, e.g., Shelton v. Board of Regents of Univ. of
Nebraska, 320 N.W. 2d 748 (Neb. 1982).
26
See Chicago, Milwaukee, St. Paul and Pac. R.R. Co.
v. United States, 575 F. 2d 839 (Ct. Cl. 1978).
27
See Yukon Equip., Inc. v. Fireman’s Fund Ins. Co., 585
P. 2d 1206 (Sup. Ct. Alaska 1978).
28
Site Security Guidelines, available at http://www
.americanchemistry.com.
29
See id. (Executive Summary).
30
See id. (Introduction).
31
See, e.g., Emergency Planning and Community Right
to Know Act (SARA Title III), 42 U.S.C. §§11001-50,
11045(b); Clean Air Act, 42 U.S.C. §§7412(r), 7413(b)(c); Occupational Safety and Health Act (OSHA), 29
U.S.C. §§654(a)(1)-(2), 666; Resource Conservation
and Recovery Act (RCRA), 42 U.S.C.S. §§6922, 6923,
6924, 6928(d), & 6972; Toxic Substances Control Act
(TSCA), 5 U.S.C.S. §§2604, 2605, 2606, 2615, & 2619.
32
See Bano v. Union Carbide Corp., No. 99 Civ.
11329(JFK), 2000 WL 1225789, at *1 (S.D. N.Y. Aug. 28,
2000). The Indian Government also attempted to indict
C
Warren Anderson, Union Carbide’s CEO. United States
extradition law prevented Anderson from being formally prosecuted; see also, Commonwealth v. Godin, 371
N.E. 2d 438 (Mass. 1977) and Commonwealth v.
Welansky, 55 N.E. 2d 902, 907 (Mass. 1944).
33
See, e.g., People v. Deitsch Textile Corp., 470 N.Y.S.
2d 158 (N.Y. App. Div. 1983). Courts have not, however,
imposed liability when the cause of the industrial disaster is unforeseeable to the defendants. See, e.g.,
People v. Warner-Lambert Co., 414 N.E. 2d 660 (N.Y.
1980).
34
See, e.g., Gaines-Tabb v. ICI Explosives, USA, Inc., 995
F. Supp 1304 (W.D. Okla. 1996).
35
Id. at 1312.
36
Id. at 1315 (quoting Supplemental Memorandum in
Support of Defendants’ Motion at 8).
37
Id. at 1316.
38
See id. at 1318.
39
Id.
40
See id. at 1323.
41
See Port Authority of New York and New Jersey v.
Arcadia Corp., 189 F. 3d 305, 313 (3rd Cir. 1999).
42
Id. at 313.
43
Id. at 315 (quoting Oquendo v. Bettcher Indus. Inc.,
939 F. Supp. 357, 361 (D. N.J. 1996)).
44
Id.
45
Garza v. United States, 809 F. 2d 1170 (5th Cir. 1987).
46
See id. at 1172.
47
See id. at 1174.
48
Id. at 1175.
49
See Wendt v. Balletto, 224 A. 2d 561 (Super. Ct. Conn.
1966); Yukon Equip., Inc. v. Fireman’s Fund Ins. Co.,
585 P. 2d 1206 (Sup. Ct. Alaska 1978).
50
See Gaines-Tabb v. ICI Explosives USA, Inc., 995 F.
Supp 1304 (W.D. Okla. 1996); Port Authority of New
York and New Jersey v. Arcadia Corp., 189 F. 3d 305
(3rd. Cir. 1999).
51
The responsible corporate officer doctrine had its genesis in two Supreme Court cases arising under the
Food, Drug and Cosmetic Act (FDCA). See United
States v. Dotterweich, 320 U.S. 277 (1943) and United
States v. Park, 421 U.S. 658, 671-72 (1975). The responsible corporate officer doctrine also has a statutory
basis in environmental criminal prosecutions. For example, the Clean Water Act specifically defines the term
“person” to include a “responsible corporate officer.” See
33 U.S.C.A. §1319 (c)(6) and United States v. Iverson,
162 F. 3d 1015 (9th Cir. 1998).
52
See Joshua Safran Reed, Reconciling Environmental
Liability Standards after Iverson and Bestfoods, 27
ECOLOGY L.Q. 673, 697 (2000).
53
Id. at 673.
54
Unlike the statute at issue in Dotterweich and Park,
the majority of environmental criminal statutes do not
impose strict liability but rather set forth violations
based on “knowing” conduct, a term which in an environmental criminal case simply means that an individual is conscious of his or her actions, not that he or
she knows that the conduct is illegal. However, the
Iverson court’s aggressive application of the responsible corporate officer doctrine permits the government
to impute the criminal knowledge of a subordinate to
a corporate officer in authority and therefore allows a
criminal prosecution of that officer without regard to
actual knowledge or criminal culpability. See, Thomas
A. Shook, Ninth Circuit Rejects Narrow Interpretation
of “Responsible Corporate Officer,” 8 S.C. ENVTL. L.J.
111, 116 (Summer 1999).
55
See Chemical Security Act of 2001, S. 1602, 107th
Cong. §1 (2001).
56
California Chemical Security and Community
Protection Act, AB 2479, 2001-02 Reg. Sess. (Ca. 2002).
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CASE ANALYSIS • MOCK TRIALS • SURVEYS • JURY SELECTION • WITNESS PREPARATION
LOS ANGELES LAWYER’S SEMIANNUAL GUIDE TO
EXPERT WITNESSES
Avoiding Common Mistakes When Selecting an Expert Witness
BY DAVID NOLTE
The following suggestions result from my experience serving as a witness, watching hundreds of other expert witnesses, and locating witnesses when serving
as a confidential consultant. They are intended to help attorneys avoid common
mistakes in selecting an expert witness.
Be careful when your potential expert is too quick to agree with your position. The expert should understand the opposing party’s position and thoughtfully explain why it is incorrect. An expert who is too agreeable with your position may become too agreeable with an opponent who provides additional
information. You are better off with an expert who will reach a conclusion more
thoughtfully and then hold to that conclusion under pressure.
When possible, select someone who has previously been successful in witness work and is enthusiastic about doing it again. Serving as a witness is an
unusual and rigorous job. Many people are not well suited to what is required.
Let’s face it: The first time we do anything, we are not likely to be very good at
it. We fall; we get it wrong; we may even embarrass ourselves. The same thing
is true when serving as an expert witness.
Test an expert’s ability to provide short answers that are directly on point.
Experts who regularly provide longer-than-necessary answers will get themselves
and your case into trouble.
Select witnesses who can explain their craft to the people who will serve on
your jury. Most experts primarily work with highly educated and motivated
peers and students who have the basic vocabulary and education necessary to
be conversant in a specialized field of study. These people are nothing like your
jury. Before employing an expert, test his or her ability to explain difficult concepts quickly in simple terms.
Identify people with energy and enthusiasm. The love that experts have for
their field should be contagious. Experts should be quick to offer an illustration,
David Nolte is a principal at Fulcrum Financial Inquiry LLP. He has over 25 years of
experience performing forensic accounting, auditing, business appraisals, and
related financial consulting. He regularly serves as an expert witness.
chart, or analogy to enliven technical explanations. Don’t presume that a candidate will become engaging and charismatic with your good coaching.
Gain a general understanding of the methodology that your proposed expert
will use. Does it appeal to common sense? Inquire whether the methodology
will meet the standards required of the Daubert/Kumho cases in federal court
or the applicable state standard (Kelly/Frye in California).
Obtain only those experts who have the premiere credential in their field.
Avoid the numerous nearly meaningless credentials that require little more
than an application fee and a basic test that most people pass. Also troubling
are credentials that are given based on a point system that provides credit for
unrelated experience. In contrast, most noteworthy credentials require difficult
tests, lengthy experience requirements, and peer evaluation.
Insist that your proposed expert and the expert’s firm perform a comprehensive
conflict check. This is particularly true of the large firms that have multiple service offerings. It is costly to learn of a conflict or contrary position after you have
committed yourself. A conflict could even disqualify you. I have replaced firms
that have not been conscientious in this area, and I am always surprised when
this basic inquiry is ignored.
Investigate the writings of the expert you are considering. In some fields,
regular publications are an indication of accepted expertise. But prior publications represent a minefield of potential conflicting positions or nuances that
can be exploited by your opponent. Most jurors will quickly grasp the importance of a contradictory position. But since they do not live in the academic
world, they will probably not care if the expert is publishing. It is difficult to predict the twists and turns of any litigation, so the safest course is to avoid a wellpublished expert.
The importance of all these issues requires that you begin your search for
experts early. Your litigation plan should allow sufficient time 1) to identify the
right expert, 2) for the expert to perform sufficient analysis (in the role as a confidential consultant) to know whether it will be helpful to your position, and 3)
for you to alter your plan based on the consultant’s preliminary conclusions.
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ACCIDENT ANALYSIS/
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9837 Belmont Street, Bellflower, CA 90706, (562) 7437230, fax (562) 920-9204. Contact Robert F. Douglas
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637 Valley Avenue, Solana Beach, CA 92075, (858) 4811990, fax (858) 481-0980. Web site: www.fiskebrown
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Forensic engineers in accident reconstruction and product failure analysis. Accident reconstruction, automotive
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FRED M. JOHNSON, PHD.
P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax
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MACINNIS ENGINEERING ASSOCIATES
21076 Bake Parkway, Suite 106, Lake Forest, CA 92630,
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MacInnis Engineering Associates has been providing
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these areas each year for clients throughout North
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in California, Washington, and British Columbia,
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MR. TRUCK ACCIDENT INVESTIGATION &
RECONSTRUCTION
P.O. Box 398, Brentwood, CA 94513-0398, (800) 3374994, fax (925) 625-4995, e-mail: william@mrtruckar
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car vs. car, truck vs. car cases, trucking industry safety,
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ROBERT C. PECKHAM & ASSOCIATES
1925 West Glenoaks Boulevard, Glendale, CA 91201,
(818) 845-7400, fax (818) 845-7765. Web site: www
.peckhamassociates.com. Contact Robert C.
Peckham, PE. Specialties: Robert C. Peckham, P.E.
provides expertise in the areas of vehicular accident reconstruction and analysis, as well as product and equipment failure analysis, and defect analysis. Mr. Peckham
has worked on cases involving consumer, commercial
and industrial products and systems including fabrication equipment, process equipment, and medical equipment. See display ad on page 49.
CARL SHERIFF, PE
10153-1/2 Riverside Drive, Suite 365, Toluca Lake, CA
91602, (818) 766-9259, fax (818) 908-9301. Contact
Carl Sheriff, PE, forensic engineer. Degreed in the law
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mechanical, controls, and safety. General contractor,
real estate broker, and certified building inspector. Licensed truck driver. Consulting and expert testimony on
premises liability, product defects, and traffic accidents.
Construction and industrial accidents. Building and
OSHA code compliance. Slip, trip, and falls. Human factors. Safety evaluation. Computerized analysis and exhibits. Free initial file review.
SNYDER RESEARCH LAB (FORENSIC
ENGINEERS)
7266 Edinger, Suite H, Huntington Beach, CA 926473500, (800) 429-3222, (714) 375-2166, fax (714) 3752168. Contact Stan Gardner, PE. Specialties:
Licensed mechanical and manufacturing engineer.
Reconstruction of vehicle, motorcycle and pedestrian
accidents. Slip and falls, ladder and stairs. Power
press, industrial accidents and injuries. Vehicle fires.
Defective brakes, tires, seat belts, and airbags. Approved provider of expert services for Los Angeles Superior Court and Public Defender offices. Property and
auto fire causation.
ACCOUNTING
ADVISORS/EXPERTS @ MCS ASSOCIATES
18300 Von Karman, Suite 710, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: info
@mcsassociates.com. Web site: www.mcsassociates
.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, and real estate
consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders,
consultants, economists, accountants, and appraisers.
Specialties: lending customs, practices, policies, and
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construction defects/disputes, and title insurance.
BALLENGER, CLEVELAND & ISSA LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact
Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining
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THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
[email protected]. Web site: www
.capanalysis.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related to litigation, arbitration, valuation and other
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JONATHAN E. COHEN, AN ACCOUNTANCY
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5850 Canoga Avenue, Suite 200, Woodland Hills, CA
91367, (818) 340-9272, fax (818) 883-8126, e-mail:
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Analysis and calculation of damages and lost profits
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has 30 years in public practice as a CPA, including 20 in
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COHEN, MISKEI & MOWREY LLP
(818) 986-5070, fax (818) 986-5034, e-mail: cmmcpas
@aol.com. Contact Scott Mowrey. Specialties:
consultants who provide extensive experience, litigation
support and expert testimony regarding forensic accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 59.
ERNST & YOUNG LLP
725 South Figueroa Street, Los Angeles, CA 90017,
(213) 977-7630, e-mail: [email protected]. Contact
Peter W. Brown. Ernst & Young LLP is one of the
world’s largest accounting, financial advisory and appraisal firms. Our Litigation Advisory Services practice
has hundreds of professionals across the United States
serving the legal community full time. We offer a full
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quantification of damages, settlement negotiations, and
expert testimony. Backed by the global resources of our
firm, our practice is focused on providing an array of experts with in-depth industry skills designed to meet our
client’s specific needs.
FULCRUM FINANCIAL INQUIRY LLP
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
@fulcruminquiry.com. Web site: www.fulcruminquiry
.com. Contact David Nolte. Fulcrum’s analysis and research, combined with unique presentation techniques,
have resulted in an unequaled track record in successful
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audits, strategic and market assessments, competitive
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of other financial advisory services. See display ad on
page 45.
GLENN M. GELMAN & ASSOCIATES,
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS CONSULTANTS
1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa
.com. Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration
consulting, forensic accounting, investigative auditing,
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VERN J. GRADY, CPA
246 Bicknell Avenue #3, Santa Monica, CA 90405, (310)
450-3716, fax (310) 450-1767, e-mail: verngrady@aol
.com. Contact Vern Grady, CPA, CVA. Forensic accounting, litigation support services, business valuation,
marital dissolution, and expert witness testimony. See
display ad on page 73.
GURSEY, SCHNEIDER & CO., LLP
10351 Santa Monica Boulevard, Suite 300, Los Angeles,
CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail:
[email protected].. Web site: www.gursey.com.
Contact Roseanna Purzycki or Rory Burnett. Forensic
accounting and litigation support services in the areas of
marital dissolution, business valuation and appraisal,
goodwill, business disputes, malpractice, tax matters,
bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 52.
HAYNIE & COMPANY, CPAs
4910 Campus Drive, Newport Beach, CA 92660, (949)
724-1880, fax (949) 724-1889, e-mail: sgabrielson
@hayniecpa.com. Web site: www.hayniecpa.com.
Contact Steven C. Gabrielson. Alter ego, consulting
and expert witness testimony in a variety of practice
areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis,
fraud/forensic investigations, taxation, personal injury,
wrongful termination, professional liability, and expert
cross examination. Extensive public speaking background assists in courtroom presentations.
MIOD AND COMPANY, LLP CPAs
15456 Ventura Boulevard, Suite 500, Sherman Oaks, CA
91403-3023, (818) 905-5822, fax (818) 905-5867, 74478 Hwy 111, Suite 254, Palm Desert, CA 92260, (760)
779-0990, fax (760) 779-0960, e-mail: dmiod@miod-cpa
.com. Visit our Web site at www.miod-cpa.com. Contact
Donald John Miod, CPA, ABV, CVA, CBA. More than
28 years’ experience in litigation support, including computation of income available for support, tracing, busiLOS ANGELES LAWYER / NOVEMBER 2002 47
ness valuations, earnings loss calculations, and income
tax matters. Our firm is very computer-oriented, involving
the use of computer graphics. We are members of the
Institute of Business Appraisers, the International Society
of CPAs (founding member), the American Institute of
CPAs, and California Society of CPAs. See display ad
on page 60.
DAVID OSTROVE, ATTORNEY-CPA
90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail:
[email protected]. Web site:www.estateplanning.com
/ostrove. Contact David Ostrove. Accounting malpractice (defense/plaintiff). Experts in legal malpractice (defense/plaintiff), auditor’s malpractice (defense/plaintiff),
business valuations, breach of fiduciary duty, insurance
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transactions. See display ad on page 6.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or
Tom Pastore. Sanli Pastore & Hill, Inc. is a premier
provider of business valuation and valuation advisory
services, specializing in litigation support and expert
witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions,
goodwill impairment, fairness and solvency opinions,
ESOPs, incentive stock options, capital raises, corporate,
partnership, and marital dissolutions. Comprehensive
economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation,
and settlement negotiations. See display ad on page 46.
SCHULZE HAYNES & CO.
515 South Figueroa Street, Suite 1525, Los Angeles,
CA 90071, (213) 627-8280, fax (213) 627-8301, e-mail:
.schulzehaynes.com. Contact Karl J Schulze or Dana
Haynes, principals. Specialties: forensic business
analysis and accounting, lost profits, economic damages, corporate recovery, expert testimony, discovery
assistance, business and real estate valuations, construction claims, real estate transactions, financial analysis and modeling, major professional organizations, and
have experience across a broad spectrum of industries
and business issues. Degrees/licenses: CPA; CVA; CFE;
CMA; Certified Appraiser, PE; RE Broker.
SUGARMAN & COMPANY, LLP
44 Montgomery Street, Suite 1310, San Francisco, CA
94104, (415) 395-7500, fax (415) 658-2858, e-mail:
.sugarman-company.com. Contact Diane LaBelle. Expert witness testimony in federal, state, and local courts,
forensic accounting. Case involvement includes: damage calculations, lost profits, business interruption, cash
flow analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims,
fraud investigations, lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going concern analysis, as well as bankruptcy and reorganization management and consulting.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA &
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
Blvd West, 17th Floor, Orange, CA 92868, (714) 9391781, fax (714) 938-3874, e-mail: [email protected].
Contact Barbara Luna, Drew Hunt, Paul White, Jack
Zuckerman, Fred Warsavsky, and Bill Wolf. Expert
witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits and earnings, fraud
investigation, business and real estate valuation, and tax
planning and preparation. Hundreds of times as expert
witnesses. Prior “big four” accounting firm experience.
Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property, product liability, real estate, spousal
support, tax, valuation of businesses and real estate, unfair advertising, unfair competition, and wrongful termination. See display ad on page 15.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAs
11900 West Olympic Boulevard, Suite 650, Los Angeles,
CA 90064-1151, (310) 826-1040, fax (310) 826-1065.
Web site: www.zsscpa.com. Contact Lester J.
Schwartz, Michael D. Saltsman, or David Dichner. Accounting experts in forensic accounting, tax issues,
business valuations, and appraisals, marital dissolutions,
eminent domain, insurance losses, business interruption,
goodwill, economic analysis, investigative auditing, loss
of earning, commercial damages, and lost profits. Expert
witness testimony, preparation, and settlement negotiations and consultations. See display ad on page 49.
ADA/DISABILITY DISCRIMINATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, (310) 454-4516. Contact Marcia
Haight. Human resources expert knowledgeable in both
federal and California law. Twenty-five years’ corporate
human resources management experience plus over 12
years as a human resources compliance consultant in
California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and FEHA
discrimination and harassment, retaliation, FMLA/CFRA,
and safety. Courtroom testimony and deposition experience. Retained 60% for defense, 40% for plaintiff. Audit
employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess
human resources policies and practices for soundness,
for comparison to prevailing practices, and for compliance. Evaluate effectiveness of employer investigations.
Assist counsel in preliminary case analysis, discovery
strategy, examination of documents, and expert testimony.
BRIAN H. KLEINER, PhD
Professor of Human Resource Management, California
State University, 800 North State College Boulevard, LH640, Fullerton, CA 92834, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specializations
include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and practices,
reasonable care, progressive discipline, conducting
third party workplace investigations, retaliation, RIFs,
statistics, negligent hiring, promotion selections, CFRA
/FMLA, compensation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over 500 publications. Five-time winner of
CSUF Meritorious Performance Award. Extensive experience giving testimony effectively.
ACCIDENT RECONSTRUCTION / FAILURE ANALYSIS
ROBERT C. PECKHAM, P.E.
ALLERGY/ASTHMA/IMMUNOLOGY
ROGER M. KATZ MD
1304 15th Street @ Arizona, Suite 102, Santa Monica,
CA 90404, (310) 393-1550, fax (310) 576-3601, e-mail:
[email protected]. Web site: www.allergyasthmamall.com.
Contact Roger M. Katz, MD. IME/expert witness/review.
Experienced plaintiff and defense. Expert witness record
review, IME.
APPRAISAL AND VALUATION
MECHANICAL ENGINEER
TEL
818 845-7400
■ FAX
818 845-7765
1925 W. GLENOAKS BLVD., GLENDALE, CA 91201
www.peckhamassociates.com
ROBERT C. PECKHAM & ASSOCIATES | ENGINEERS AND SCIENTISTS
AMERICAN APPRAISAL ASSOCIATES
350 South Grand Avenue, Suite 3070, Los Angeles, CA
90071, (213) 687-1400, fax (213) 687-7440, e-mail:
[email protected]. Contact Stephen A.
Stewart, vice president/managing principal. American
Appraisal Associates is one of the oldest (est.1896) and
largest (1000+ employees) appraisal/valuation firms in
the world, with offices throughout the globe. American
appraisal is a full-service appraisal/valuation firm offering expertise in real estate, machinery and equipment,
and business valuation. Our consultants can assist with
solvency and insolvency analyses, litigation support, expert testimony, intangible assets, and discounts associated with minority interests.
BEVERLY HILLS APPRAISAL CO.
9489 Dayton Way #300, Beverly Hills, CA 90210, (800)
ART-XPRT, local phone/fax (310) 276-3687. Contact
Robert I. Levy. Firm provides full-service in house appraisals for fine art, antiques, jewelry, objets d’art, and
all other personal property/general contents. Employing
“state of the art” technology including Artnet, Artfact,
and other Internet databases, digital still and video imagery. Principal appraiser Robert Levy is certified and
USPAP accredited, member: AAA since 1981; candidate
member: ASA since 1998; former appraiser for several
major international auction houses since 1974.
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
HAMILTON, BOYNTON & SPEAKMAN
16000 Ventura Boulevard, Suite 600, Encino, CA 91436
(818) 986-4300, fax (818) 986-9050, e-mail: chamilton
@hbscpa.com. Web site: www.hbscpa.com. Contact
Chris Hamilton, CPA, CFE, CVA, DABFA. Progressive
firm specializing in forensic accounting and business
valuations. Provides first line of defense for a variety of
legal disputes. Certified fraud examiner and certified valuation analyst translate complex issues into plain English. Often, we help reach quick, out-of-court settlements. But when trial is required, we provide expert witness testimony and litigation support needed to win. See
HAMILTON, RABINOVITZ & ALSCHULER, INC.
6033 West Century Boulevard, Suite 890, Los Angeles,
CA 90045, voice (310) 645-9000, fax (310) 645-8999. Email: [email protected]. Contact Francine Rabinovitz,
PhD, executive vice president. Public policy, finance,
and management consultants providing litigation support, simulation, and modeling to courts and corporate
/public litigants in land use, real estate development, environmental protection, mass tort (including toxic tort),
insurance, finance, housing, minority rights, education,
and employment cases. Degrees/license: MBAs, PhDs,
cert. planners, MPAs, MCPs.
KAPLAN ABRAHAM BURKERT & COMPANY
Forensic Valuation Consultants. 5950 Canoga Avenue,
Suite 200, Woodland Hills, CA 91367, (818) 888-0066,
fax (818) 888-8860. Contact Michael G. Kaplan, CPA,
CVA, CFFA. Expert witness services and preparation in
matters involving business disputes, goodwill, economic
damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation,
marital dissolution, legal and accountants’ malpractice,
wrongful termination, intellectual property, and bankruptcy. Affiliated offices nationwide.
ARCHITECTURE
BALL CM, INC.
24405 Chestnut Street, #201, Newhall, CA 91321, (800)
919-7899, fax (661) 254-2127, e-mail: chris@ballcm
.com. Web site: www.ballcm.com. Contact Chris Ball.
Services available include contract disputes, change
order disputes, claims preparation and analysis, scheduling and delay analysis, site inspections, code compliance, cost estimating, construction standard of care, all
trades, and large and small cases. See display ad on
page 51.
KUDRAVE ARCHITECTS
811 West 7th Street, Penthouse Suite, Los Angeles,
CA 90017, (213) 955-0005, fax (213) 955-0006, e-mail:
[email protected]. Contact Peter G. Kudrave.
Professional standards of care, design and construction
delay claims, code compliance, land use planning, construction related accidents, cost and scope changes,
constructability, construction and design defects, fee
disputes.
BANKING
263-8700, fax (949) 263-0770, e-mail: info@mcsassociates
.com. Web site: www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized banking, finance, and real estate consulting group
(established 1973). Experienced litigation consultants
/experts include senior bankers, lenders, consultants,
economists, accountants, and appraisers. Specialties:
lending customs, practices, policies, and procedures in
all types of lending (real estate, business/commercial,
construction, consumer/credit card), banking operations/administration, trusts and investments, economic
analysis and valuations/damages assessment, real estate brokerage, appraisal, escrow, construction
defects/disputes, and title insurance.
BANKRUPTCY/TAX
28 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, earnings loss calculations, and income
on page 60.
90024, (310) 873-1717, fax (310) 873-6600. Contact
services, specializing in litigation support and expert witness testimony. Services include valuations for goodwill
loss, estate and gift tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions,
ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and market research. Extensive
experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on
page 46.
DAVID M. MCCANN, MD (MS ENGRG)
4944 Sunrise Boulevard, Suite F, Fair Oaks, CA (Sacramento area) 95628. Los Angeles office also available.
(916) 863-7275, fax (916) 863-6775, e-mail: office
@mcann-md.com. Web site: www.mccann-md.com.
Accident reconstruction, biomechanics, medicine (including spinal injuries). Expert testimony about the accident and the injuries—able to discuss all aspects of causation. Practicing physician, was engineer with General
Motors for 13 years. See display ad on page 63.
BIOMECHANICS/MEDICINE
BUILDING & FIRE CODES
PFS CORPORATION
3637 Motor Avenue, Suite 380, Los Angeles, CA 90034,
(310) 559-7287, fax (310) 559-1368, e-mail: rnelson
@pfscorporation.com. Web site:www.pfscorporation.com.
Contact J. Robert Nelson, PE. Building and fire code
expert. Thirty years in code enforcement and construc-
tion (10 years with ICBO/Uniform Building Code and Uniform Fire Code, 5 years with Los Angeles County Building Department). Civil, structural, and fire protection engineering.
BUSINESS APPRAISAL/BUSINESS
VALUATION
AMERICAN APPRAISAL ASSOCIATES
350 South Grand Avenue, Suite 3070, Los Angeles, CA
90071, (213) 687-1400, fax (213) 687-7440, e-mail:
[email protected]. Contact Stephen A.
Stewart, vice president/managing principal. American
Appraisal Associates is one of the oldest (est. 1896) and
largest (1000+ employees) appraisal/valuation firms in
the world, with offices throughout the globe. American
appraisal is a full service appraisal/valuation firm offering
expertise in real estate, machinery and equipment and
business valuation. Our consultants can assist with solvency and insolvency analyses, litigation support, expert
testimony, intangible assets, and discounts associated
with minority interests.
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
.capanalysis.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related to litigation, arbitration, valuation and other
financial and accounting issues. Special emphasis on intellectual property, contract disputes and tort claims, insurance coverage, investigative and forensic accounting
and auditing, and business valuations. Degrees/License:
CPAs, CFEs, CVAs, JDs.
@aol.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 59.
DESMOND MARCELLO AND AMSTER
Southern California office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 2161400, fax (310) 216-0800. Northern California office: 225
Bush Street, 16th Floor, San Francisco, CA 94104, (415)
439-8390, fax (415) 439-8391. Web site: www.dmavalue
.com. Contact Wes Nutten, Walt Gorsey, Aaron
Amster, or Madeleine Mamaux. Litigation-consulting,
forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualifications include CPA, CMA,
ABV, CFA, and ASA designations. Testimony experience
in numerous court jurisdictions. Established in 1968. See
ERNST & YOUNG LLP
serving the legal community full-time. We offer a full
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
@fulcruminquiry.com. Web site:www.fulcruminquiry.com.
Contact David Nolte. Fulcrum’s analysis and research,
combined with unique presentation techniques, have resulted in an unequaled track record in successful court
cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business
page 45.
VERN J. GRADY, CPA
CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail:
[email protected] site: www.gursey.com.
Contact Vanita M. Spaulding, CFA, ASA. Partner qualifications include MBA, CFA, ASA, and ABV. GSCO is an
accounting firm specializing in forensic accounting, litigation support services, business valuation and appraisal services, for a variety of purposes including marital dissolution, gift and estate planning, eminent domain
goodwill loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments,
insurance claims, court accounting, tracing, and entertainment industry litigation. GSCO has over 30 years’ ex-
perience as expert witnesses in litigation support. See
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles, CA
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has over 20 years of litigation support and expert
testimony experience in matters involving business valuation, economic damages, intellectual property, loss of
business goodwill and lost profits. Areas of practice in-
clude business disputes, eminent domain, bankruptcy,
and corporate and marital dissolution. See display ad
on page 61.
MIOD AND COMPANY, L.L.P. CPAs
28 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, earnings loss calculations, and income
on page 60.
page 46.
Construction
Forensics
Waterproofing
Coatings
Membranes
Expert Witness
Soil Stabilization
Investigation
William C. Sterling & Kelley Roberts
61 YEARS EXPERIENCE
Offices in Orange & San Diego serving Calif. Ariz. & Nevada
Trial Preparation
Cost Estimating
E.I.F.S.
Structural Rehab
(No Excavation
Waterproofing)
Elastomeric Coating
Epoxy & Chemical Grouting
Above & Below Grade W.P.
(Structural &
Reinforcing Steel)
Concrete
Masonry
Stucco
Invasive Tests
Bentonite
TRIAL AND ARBITRATION PROVEN
800-559-0933 • 714-969-0061 • 760-940-0380 • 858-793-8337 • Fax 858-793-8338
VICENTI, LLOYD & STUTZMAN LLP
2100-A Foothill Boulevard, La Verne, CA 91750, (909)
593-4911, fax (909) 593-8879, e-mail: rstutzman@vlsllp
.com. Web site: www.vlsllp.com. Contact Royce Stutzman, CVA, CPA, chairman. Our certified professionals
serve as consultants and experts in business valuations
and litigation support. We conduct valuations related to
mergers and acquisitions, buy-sell agreements, purchase/sale of closely held businesses, partner disputes,
etc. Our forensic accounting experts assess the amount
of an economic loss, whether it be business interruption
from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various
events. Our fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses
evidence to resolve allegations. We provide expert witness testimony and implement fraud prevention programs.
Gursey, Schneider & Co. LLP
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
C E RT I F I E D P U B L I C A C C O U N TA N T S
CHEMISTRY
We set the standard in litigation support
• Accounting related to Family Law and Civil Litigation
• Tax preparation and consulting
• Accounting and auditing
• Business management and financial planning
• Information technologies consulting
• Business Valuation and Appraisals
Let us become a partner in your success
With Gursey, Schneider & Co. LLP on your management team, you’ll
get more than facts and figures. You’ll get a trusted business partner,
guiding you toward success and prosperity every step of the way.
10351 Santa Monica Boulevard, Suite 300
Los Angeles, California 90025-6912
TEL
310.552.0960 • FAX 310.557.3468
www.gursey.com
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 E. Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
[email protected]. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical accident investigation—specializing in complex industrial
chemical accidents and chemical-related consumer
product injuries: chemical fires and explosions, chemical
labeling, chemical packaging, chemical handling and
shipping, chemical burns, hot liquid burns, chemical
warnings, chemical disposal, chemical safety, EPA,
DOT, OSHA, propane, natural gas, flammable liquids,
hazardous chemicals, aerosols, metallurgy, corrosion,
failure analysis, water contamination, water testing, plastics, acids, alkalis, and MSDSs. State-of-the-art equipment available, including natural SEM/EDAX, GC/MS,
FTIR, etc. Ph.D. physical chemistry, certified fire and explosion investigator, NACE accredited in corrosion,
OSHA HAZWOPER certified (hazardous chemicals),
DOT certified (shipment of hazardous materials), accredited in aerosol technology.
COMPUTERS/INFORMATION SCIENCES
VERN J. GRADY, CPA
COMMERCIAL TRUCKING INDUSTRY
DOIT CORPORATION
708 Corrida Drive, Covina, CA 91724, (626) 966-0139,
fax (626) 966-0139, e-mail: [email protected].
Web site: www.cheetah.net/~saymeow/. Contact John
Riggins. Commercial trucking industry driver training
/safety specialist. Review, consult, depositions, and trial.
Experienced. Exceptionally qualified for deposition/trial
testimony. CA Commercial Class A Drivers License (fully
endorsed: doubles, triples, tankers, hazardous material,
passengers); DOT certified; CA transportation Instructor;
certified airbrake maintenance/inspection; National
Safety Council qualified professional truck driver/defensive driving. Former owner-operator/Director of training
for CDL Instructors. U.S. Marines, LA Fire and Sheriffs.
CONSTRUCTION
BALL CM, INC.
page 51.
BERT L. HOWE & ASSOCIATES, INC.
5415 East La Palma, Anaheim Hills, CA 92807, (714)
701-9180, fax (714) 701-9182, e-mail: berthowe
@berthowe.com. Web site: www.berthowe.com. Bert L.
Howe & Associates is a full-service litigation support firm
specializing in the remediation of construction defect
claims. Our staff of credentialed construction professionals includes recognized experts in the fields of repair
cost estimating, forensic architecture, roofing, waterproofing, as well as civil and structural engineering. BHA
provides a single point of reference to the construction
claims professional. Relevant experts, technical and
support staff are brought together under one organizational umbrella to ensure effective interexpert communication. We have the experience of handling more than
1500 construction defect litigation’s in more than 10
years serving the mediation needs of insurers. See display ad on page 60.
CONSTRUCTION FORENSICS
12956-121 Carmel Creek Road, San Diego, CA 92130,
(858) 793-8337, fax (858) 793-8338, e-mail: sbill32
@aol.com. Contact William C. Sterling or Kelley
Roberts. Specialists in above and below—grade waterproofing, structural waterproofing (no excavation required) water/moisture intrusion issues, structural epoxy
injection, pressure and chemical grouting, decks and
coatings. Claims analysis/litigation, cost estimating. Expert witness testimony. Invasive investigation and testing. EIFS wall systems, concrete, and stucco. Trial and
arbitration proven. Sixty-four years of experience. California licensed. Gen. Cont. (B) Engineering (A) six sub.
Cont. lic. See display ad on page 52.
EDMONDS ASSOCIATES, CONSULTANTS, INC.
250-8858, fax (760) 591-0733, 1561 Via Entrada del
Lago, San Marcos, CA 92069, (760) 591-9409, fax
(760) 591-0733, e-mail: [email protected]. Web
site: www.edmondsconsultants.com. Contact Rex
Edmonds, CPE. Discovery, analysis, consultation, evaluation, and testimony in matters of construction methods, costs, management, custom and practice/standards of care, schedule, delay/acceleration impact, constructibility, and accidents. Solid background in construction, engineering, cost estimating, general contracting (union/open-shop/design-build) of commercial, industrial, institutional, residential, waste and water treatment, pre-engineered, and site development/grading
Desmond, Marcello & Amster
VALUATION AND LITIGATION CONSULTANTS
Since 1968
▲ BUSINESS VALUATION — Appraisal of tangible and intangible
assets; mergers, acquisitions, divestitures; public and private financings;
litigation involving partnership or corporate disputes; estate planning
▲ LITIGATION CONSULTING — Expert testimony on damage issues;
breach of contract; business interruption; partnership or shareholder
disputes; fraud investigations; personal injury matters
▲ EMINENT DOMAIN — Specialty practice in the appraisal of fixtures
and equipment and goodwill loss
▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant
database management and settlement distribution services
COMMITMENT, INGENUITY, INTEGRITY
Contact: Aaron Amster, Wes Nutten or Walt Gorsey
6060 Center Drive, Suite 825
Los Angeles, California 90045
Tel (310) 216-1400
Fax (310) 216-0800
225 Bush St., 16th Floor
San Francisco, California 94104
Tel (415) 439-8390
Fax (415) 439-8391
Toll-free (888) 240-5184
www.dmavalue.com
LE D.
An acknowledged leader in Dispute Avoidance and
Resolution services, we can help you with the
prevention, investigation, evaluation and resolution
of construction contract disputes. For details,
call 213-486-9884 or visit www.PinnacleOne.com
Program & Project Management • Dispute Avoidance & Resolution • Real Property Advisory Services
projects. BSCE, CAL. B license, Certified Professional
Estimator, ASPE. See display ad on page 65.
FORENSISGROUP, INC.
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
LAWNETINFO.COM/HANK KRASTMAN, PhD
20610 Romar Street, Chatsworth, CA 91311, (818) 7271723, fax (818) 727-1723, e-mail: krastman@earthlink
.net. Web site: www.lawnetinfo.com. Contact Hank
Krastman. Retired L.A. city building inspector/investigation, reports, deposition analysis, inverse condemnation
cases, construction defects, building department issues,
zoning issues, injuries on properties, fire, slip and fall,
landslides, electrocution, discovery, construction consulting, permit expediting, drafting services, engineering
services, design services, and anything else related to
the construction industry. Attorney’s Guide to UBC Building Code. See display ad on page 61.
LYNDEHURST, LTD.
5535 West 64th Street, Los Angeles, CA 90056, (310)
410-8850, fax (310) 410-8893, e-mail: lyndehurst@aol
.com. Contact Richard A. Jampol. Forty years’ experience as an architect, contractor, real estate broker, and
consultant. Developer/manager of office buildings, housing, industrial, medical, and retail projects. Leasing,
property management, predesign planning/investment
analysis, landlord/tenant disputes, and standard of care.
Lease interpretation, expert testimony/litigation support
and HOA matters. Experienced in complex matters.
Good presentation skills in court. Personally negotiated
over 4500 leases. See display ad on page 60.
ANTHONY J. MEZA, CONSULTANTS, ARCHITECT, A.I.A.
12567 McCune Avenue, Los Angeles, CA 90066, (310)
391-5570, fax (310) 391-5570, e-mail: [email protected].
Contact Anthony J. Meza. Our background is in architecture, construction, and project management in residential as well as commercial projects. We have participated in numerous projects in the role of project designer, administrator, manager, and that of director. Our
career emphasis has been in code administration, management and contractor/developer interface, and communicating in the general framework of the construction
industry. We are involved with the study of forensics as it
relates to the field of architecture and construction, with
an emphasis in construction defects, building and zoning code compliance, and stair trip and fall.
PACIFIC CONSTRUCTION CONSULTANTS, INC.
(800) 655-PCCI. Contact Marketing Director. Construction contract disputes (claims) analysis, prep and
presentation, delay and monetary impact evaluation, including CPM schedules. Architectural, civil, structural,
mechanical, and electrical specialties. Full in-house
courtroom visual exhibit preparation. Assistance in negotiations, mediation, arbitration, and litigation. Expert
witness testimony. Additional phone (310) 337-3131 or
(916) 638-4848. See display ad on page 66.
PAOLI & CO.
13192 Cortina, Tustin, CA 92782, (714) 832-7268, fax
Gary Paoli, principal. Consulting and expert witness
with 35 years’ experience in major construction projects.
Lath and plaster, EIFS and DEFS, drywall, gauge metal
framing systems, commercial and residential, site built
and prefabricated panel systems, and design-build exteriors. Specializing in complex, design-related projects
for building exteriors for both defense and plaintiff. Degrees/licenses/Associations: B. Architecture, MBA, CSI,
WWCCA.
SCHWARTZ/ROMANO & ASSOCIATES, INC.
3075 East Thousand Oaks Boulevard, Building 100,
Suite 23, Thousand Oaks, CA 91362, (805) 777-1115,
fax (805) 777-1172. Other offices in Los Angeles,
San Diego, and Palm Springs, CA. Web site:
www.schwartzromano.com. Contact Robert Schwartz,
AIA. Forensic investigation of building design and construction defects, structural and weatherproofing systems. Establishment of construction contract and building code compliance. Evaluation of delay claims. Documentation of major property/casualty insurance losses.
Determination of professional performance standards.
Architectural and engineering design and construction
management. Quantity surveying and cost estimating.
Litigation support and trial exhibit preparation. Expert
witness testimony. AAA arbitrator and mediator, large
and complex construction cases. Member, dispute
resolution boards.
URS
90017, (213) 996-2571, fax (213) 996-2521, e-mail:
[email protected]. Contact Jack Irwin, PE.
Forensic analysis and expert witness on design, construction, geotech, and environmental claims and disputes. Experience in all types of buildings, civil, environmental, and transportation projects. See display ad on
page 71.
MARIO ZANELLI, GENERAL CONTRACTOR
P.O. Box 27240, San Diego, CA 92198, (858) 485-8773,
fax (858) 485-1584, e-mail: [email protected].
Forty-seven years of experience in the construction industry, including design, estimating, purchasing, project engineering, field supervision, project management, contract negotiations, journeyman carpenter for
rough framing and finished carpentry, participation in
most construction trades, including electrical, and
plumbing, and construction management. Specialties
include forming for monolithic concrete pours and construction of prefabricated steel buildings. Experienced
in all phases of project investigation, deposition, and
expert testimony.
contractors and designers, and safety. KGA experts
have served as witnesses, mediators, insurance appraisers, court appointed experts, and negotiators.
PINNACLEONE
515 South Flower Street, Suite 3510, Los Angeles, CA
90071, (213) 486-9884, fax (213) 486-9894, e-mail:
[email protected]. Established in 1980, PinnacleOne is a national firm of leading construction consultants who promote a full range of professional services, including dispute avoidance and resolution, claims analysis
and management, litigation support services, expert witness, project management, financial services, and more.
Headquartered in Phoenix, PinnacleOne regional operations are located in San Diego, Irvine, Los Angeles, Sacramento, and Hartford, CT. See display ad on page 53.
CORPORATE INVESTIGATIONS
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related
to litigation, arbitration, valuation, and other financial and
accounting issues. Special emphasis on intellectual
property, contract disputes and tort claims, insurance
coverage, investigative and forensic accounting and auditing, and business valuations. Degrees/License: CPAs,
CFEs, CVAs, JDs.
CREDIT DAMAGE
CM FINANCIAL SERVICES
2501 East Chapman Avenue, Suite 100, Fullerton, CA
92831, (714) 441-0900, e-mail: [email protected].
Web site: www.creditworth.net. Contact Georg Finder.
Expert witness testimony plus credit damage measurement report details changes in creditworthiness and the
out-of-pocket costs caused by increased fees, increased interest rates, etc. in cases of lender negligence, breach of contract, fraud, divorce, wrongful dismissal, identity theft, and credit bureau error. Different
from the specialty of an economist. Increases case value
a minimum of $10,000.
CRIMINOLOGY/GANGS
DR. LEWIS YABLONSKY
2311 Fourth Street, Suite 312, Santa Monica, CA 90405,
phone and fax: (310) 450-3697, e-mail: expertwitness
@lewyablonsky.com. Web site: www.lewyablonsky.com.
Contact Dr. Lewis Yablonsky, PhD -NYU. Emeritus
professor criminology, California State University Northridge. Professor at other universities, including UCLA,
University of Massachusetts, Harvard, Texas A&M, and
Columbia University. Published 18 books on criminology and social problems, including Criminology (1990);
Gangsters: 50 Years of Madness, Drugs, and Death on
the Streets of America (1997), and Juvenile Delinquency (2000). Consultant/expert witness in over 90
legal cases in various areas of criminality, including
gangs, domestic violence, homicide, drug addiction,
company security liability, and responsibility. See Web
site. Appointed as an expert witness in over 60 courts in
California and on a national level.
DISPUTE ANALYSIS
CONSTRUCTION CLAIMS
KGA, INC.
1205 North Coast Highway, Suite D, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Expert witness testimony for construction and environmental disputes. Past cases include: toxic mold, property loss, delay and contract
claims, code compliance, cost and method of repair,
defect cause, surety, bad faith, standards-of-care for
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related
to litigation, arbitration, valuation, and other financial and
coverage, investigative and forensic accounting and au-
diting, and business valuations. Degrees/License: CPAs,
CFEs, CVAs, JDs.
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
Boulevard West, 17th Floor, Orange, CA 92868, (714)
939-1781, fax (714) 938-3874, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits and earnings,
fraud investigation, business and real estate valuation,
and tax planning and preparation. Hundreds of times as
expert witnesses. Prior “big four” accounting firm experience. Specialties include accounting, antitrust, breach
of contract, business interruption, business dissolution,
construction, fraud investigation, asset tracing analysis,
intellectual property, product liability, real estate,
spousal support, tax, valuation of businesses and real
estate, unfair advertising, unfair competition, and wrongful termination. See display ad on page 15.
ECONOMIC DAMAGES
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Susan Henley Manning. Specialties:
Assist clients in all types of antitrust, mergers and acquisitions, intellectual property, and complex business litigation. Identify relevant economic issues and perform
incisive analyses leveraging knowledge of markets, industrial organization, and firm behavior. Well-versed in
the latest theoretical and empirical methods of market
definition, coordinated interactions, unilateral effects,
and market power. Perform comprehensive merger and
acquisition analyses, evaluate the competitive effects of
patent misuse, and critique opposing experts claims
and testimony. Representation of clients before FTC and
DOJ. Degrees/License: PhDs Economics.
household services, loss of earning capacity, medical
/legal malpractice, business losses (lost profits), wrongful termination, and expert testimony.
ERNST & YOUNG LLP
serving the legal community full-time. We offer a full
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
KAPLAN ABRAHAM BURKERT & COMPANY
Forensic Valuation Consultants. 5950 Canoga Avenue,
Suite 200, Woodland Hills, CA 91367, (818) 888-0066,
fax (818) 888-8860. Contact Michael G. Kaplan, CPA,
CVA, CFFA. Expert witness services and preparation in
matters involving business disputes, goodwill, economic
damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation,
marital dissolution, legal and accountants’ malpractice,
wrongful termination, intellectual property, and bankruptcy. Affiliated offices nationwide.
page 46.
515 South Figueroa Street, Suite 1525, Los Angeles,
CA 90071, (213) 627-8280, fax (213) 627-8301, e-mail:
.schulzehaynes.com. Contact Karl J Schulze or Dana
Haynes, principals. Specialties: forensic business
California
21076 Bake Parkway,
Suite 106
Lake Forest, CA 92630
Tel: (949) 855-4632
Fax: (949) 855-3340
JONATHAN E. COHEN, AN ACCOUNTANCY
CORPORATION
5850 Canoga Avenue, Suite 200, Woodland Hills, CA
91367, (818) 340-9272, fax (818) 883-8126, e-mail: jecpa
@pacball.net. Contact Jonathan E. Cohen. Analysis
and calculation of damages and lost profits (arising from
personal injury, business interruption, disability, and
wrongful death and termination), expert witness testimony and reports, assistance with discovery, depositions and development of case strategy, and accounting
and financial statement analysis. Jon Cohen has 30
years in public practice as a CPA, including 20 in litigation support, and holds an MBA.
ECONOMIC CONSULTANTS & ASSOCIATES
2030 Main Street, Suite 1300, Irvine, CA 92614, (714)
547-6588, fax (714) 547-9916, e-mail: [email protected]
.com. Contact Stephen T. Riley, PhD. Quantifying
losses in the following areas: P/I, wrongful death, loss of
Washington
12511 131st Court NE
Kirkland, WA 98034
Tel: (425) 820-7006
Fax: (425) 820-7066
The forensic experts at
• Injury biomechanics
MacInnis Engineering
• Collision reconstruction
Associates provide the
technical information
• Failure analysis
you need to effectively
• Product liability
manage your case.
• Fire investigation
M A C I N N I S
British Columbia,Canada
11151 Horseshoe Way,
Suite 11
Richmond, BC V7A 4S5
Tel: (604) 277-3040
Fax: (604) 277-3020
www.maceng.com
1.877.855.5322
E N G I N E E R I N G
A s s o c i a t e s
analysis and accounting, lost profits, economic damages, corporate recovery, expert testimony, discovery
assistance, business and real estate valuations, construction claims, real estate transactions, financial analysis and modeling, major professional organizations, and
have experience across a broad spectrum of industries
and business issues. Degrees/licenses: CPA; CVA; CFE;
CMA; Certified Appraiser, PE; RE Broker.
.com. Web site: www.vlsllp.com. Contact Royce
Stutzman, CVA, CPA, chairman. Our certified professionals serve as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers and acquisitions, buy-sell agreements,
purchase/sale of closely held businesses, partner disputes, etc. Our forensic accounting experts assess the
amount of an economic loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from
various events. Our fraud investigation team reviews
documentation, interviews witnesses and suspects, and
assesses evidence to resolve allegations. We provide
expert witness testimony and implement fraud prevention programs.
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
injury, and marital dissolution. Investigative analysis of li-
ability, damage analysis of lost profits and earnings,
ECONOMICS
18300 Von Karman, Suite 710, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail: info
.com. Contact Norman Katz, managing partner.
Nationally recognized banking, finance, and real estate
procedures in all types of lending (real estate, business/commercial, construction, consumer/credit card),
banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, real estate brokerage, appraisal, escrow,
construction defects/disputes, and title insurance.
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
.com. Contact Susan Henley Manning. Specialties:
Assist clients in all types of antitrust, mergers and acquisitions, intellectual property, and complex business liti-
gation. Identify relevant economic issues and perform
incisive analyses leveraging knowledge of markets, industrial organization, and firm behavior. Well-versed in
the latest theoretical and empirical methods of market
definition, coordinated interactions, unilateral effects,
and market power. Perform comprehensive merger and
acquisition analyses, evaluate the competitive effects of
patent misuse, and critique opposing experts claims
and testimony. Representation of clients before FTC and
DOJ. Degrees/License: PhDs Economics.
CHARLES RIVER ASSOCIATES INCORPORATED
90024-4341, (310) 208-2827, fax: (310) 208-6469. Web
site: www.crai.com. Contact John Hirschleifer. CRA
provides economic, financial, and business analysis
focusing on such areas as mergers/antitrust, telecommunications, energy, environment, international trade,
healthcare, pharmaceuticals, intellectual property securities, valuation, auctions, advanced fabricated materials,
chemicals and transportation. In concert with leading
academic industry experts, CRA staff offer assistance to
attorneys, executives, and governmental agencies in
mergers involving economic model development and application, market definition, damages assessment, and
trial preparation/testimony. See display ad on this page.
@aol.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 59.
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
/public litigants in land use, real estate development,
environmental protection, mass tort (including toxic tort),
NATIONAL ECONOMIC RESEARCH
ASSOCIATES, INC.
90017, (213) 346-3000, fax (213) 346-3030. Web site:
www.nera.com. NERA economists devise practical solutions to highly complex business and legal issues arising
from competition, regulation, public policy, e-commerce,
and strategic business decision making. We create
strategies, studies, reports, expert testimony and often,
policy recommendations that reflect our specialization in
industrial and financial economics. Our firm is recognized for our work in antitrust/competition policy; market
strategy and design, including auction design and strategy, as well as regulation, valuation, risk assessment
and commercial damages and liability in areas including
antitrust, intellectual property, labor, and securities; and
product strategy and design.
90025, (310) 571-3400, fax (310) 571-3420, Web site
address: www.sphvalue.com. Contact Nevin Sanli or
page 46.
G. GOVINE CONSULTING
Developing the Workforce for the 21st Century
LITIGATION CONSULTANT
AND EXPERT WITNESS:
EMPLOYMENT
SPECIALIZES IN:
✔ SEXUAL HARASSMENT
✔ INVESTIGATIONS
✔ EMPLOYMENT DISCRIMINATION:
AGE, RACE, SEX
✔ HUMAN RESOURCES AND
EMPLOYMENT PRACTICES
✔ WRONGFUL TERMINATION
✔ DEPOSITION PREPARATION
✔ MEDIATION
DR. GERDA GOVINE
260 N. MAR VISTA, SUITE NO. 2
PASADENA, CA 91106
TEL: 626/564-0502
FAX: 626/564-8702
800-564-0501
www.govineconsults.com
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
• Metallurgical Failures
• Corrosion & Welding Failures
• Glass & Ceramic Failures
• Chairs / Ladders / Tires
• Automobile/Aerospace/
Accidents
Contact:
• Bio-Medical/Orthopedic Implants
• Plumbing/Piping/ABS Failures
• Complete In-House Laboratory
•
•
Testing & Analysis Facilities
Expert Witnesses/Jury Verdicts
Licensed Professional Engineers
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
ADVANCED MATERIALS, INC.
Testing & Research Labs
7271 Garden Grove Blvd., Suite CDE
Garden Grove, CA 92841
■ TEL: (714)892-8987
■ FAX:: (714)894-0225
■ www.karslab.com
■ email: [email protected]
EDUCATION/PUBLIC POLICY
SAGE INSTITUTE, INC.
2801 Townsgate Road, Suite 213, Westlake Village, CA
91361, (805) 497-8557, fax (805) 496-4939, e-mail:
[email protected]. Web site: www.sageii.com. Contact
Dr. Joel Kirschenstein. Provides consulting and testimony in public policy planning and finance, supervision of instruction, administrative policies and procedures, developer fee mitigation, school facilities planning, asset management, and employer/employee relations. Degrees: B.A., M.A., doctorate, California teaching and administrative credentials. President, Sage Institute Inc.
statistics, negligent hiring, promotion selections,
CFRA/FMLA, compensation, wage and hours, ERISA,
workplace violence, and OSHA. Consultant to over 100
organizations. Over 500 publications. Five-time winner of
ELECTRICAL ACCIDENTS
JAMES A. SMITH, CONSULTANT
2562 Treasure Drive, #4102, Santa Barbara, CA 931054104, (805) 687-7911, fax (805) 687-0832, e-mail:
[email protected]. Electrical accidents, consultant,
expert witness, electrocution, electric shock, analyzing
what happened and why, National Electric Code compliance, National Electric Safety Code compliance, protective relaying, and equipment and product testing. Degree/licenses: BSEE, MSEE.
PENNY HARRINGTON & ASSOCIATES
497 Estero Avenue, Morro Bay, CA 93442, (805) 7722093, fax (805) 771-9445, e-mail: [email protected].
Web site: www.pennyharrington.com. Contact Penny E.
Harrington. Expert witness, report review, discrimination
investigation, develop policies and procedures, evaluate
policies and procedures, and conduct training on employment discrimination.
EMPLOYMENT/WAGE EARNING CAPACITY
BIDDLE CONSULTING GROUP, INC.
1321 Howe Avenue, Suite 250, Sacramento, CA 95825,
(916) 563-6219, ext. 113, fax (916) 563-7557, e-mail:
[email protected]. Web site: www.biddle.com. Contact
Dan Biddle, PhD, president. We specialize in test development, EEO/AA reviews, validation studies (content,
criterion-related), and adverse impact analyses. We
have a special emphasis in the protective service fields.
Over 30 staff. Degrees/licenses: MA, PhD, other staff
with various degrees.
PERSONNEL SYSTEMS ASSOCIATES, INC.
7551 East Moonridge Lane, Anaheim, CA 92808,
(714) 281-8337, fax (714) 281-2949, e-mail: mding
@personnelsystems.com. Web site: personnelsystems
.com. Contact Mae Lon Ding, MBA, CCP. Expert witness in employment, business dispute, disability, and
divorce cases involving issues of employee or owner
compensation, discrimination, wrongful termination,
exemption from overtime, labor market/employability,
lost wages/benefits, employee performance, evaluation
of personnel policies and practices. Nationally recognized human resource management and compensation
consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange
County Register, Business Week, Workforce, Working
Woman. Over 12 years of testifying in cases involving
major national organization in a large variety of industries involving multiple plaintiffs. MBA, certified compensation professional.
HAIGHT CONSULTING
(310) 454-2988, (310) 454-4516. Contact Marcia
AL AXELROD, INC.
21520 Burband Boulevard, Suite 106, Woodland Hills,
CA 91367, (818) 952-9468, fax (818) 932-9468, pager
(310) 939-3968, e-mail: [email protected]. Contact Al
Axelrod. Field: vehicle component failure, product liability, defect analysis, and defect analysis root cause.
Focus: safety issues, lemon law, service and repair related matters, insurance claims, brake systems, unintended acceleration. Special expertise: Road testing,
tire/wheel defects, fraudulent claims, fleet maintenance,
fires, seat belts, airbags/SRS. Degrees/licenses: ASE
Certified Master Tech, BS cal State; ASC; ASA.
ENVIRONMENTAL
EMPLOYMENT DISCRIMINATION
EMPLOYMENT
G. GOVINE CONSULTING
260 North Mar Vista, Suite #2, Pasadena, CA 911061413, (626) 564-0502, fax (626) 564-8702, e-mail:
[email protected]. Web site: www.info
@govineconsults.com. Contact Dr. Gerda Govine. Specializes in employment discrimination, wrongful termination, deposition preparation, age discrimination, communications, training and analysis, investigations, evaluation of human resource policies, practices, procedures,
forms, handbooks, systems, and evaluation of sexual harassment matters. Practices of employment discrimination, deposition preparation, and mediation. See display
ad on page 57.
ENGINEERING-AUTOMOTIVE
ENGINEERING
FORENSISGROUP, INC.
RICK ENGINEERING CO.
1223 University Avenue, Suite 240, Riverside, CA 92507,
(909) 782-0707, fax (909) 782-0723, e-mail: bstockton
@rickengineering.com. Web site: www.rickengineering
.com. Robert A. Stockton, PE. Specialties include construction review and value engineering, subdivision,
commercial/industrial site design, flood control studies/
engineering, aerial topographic mapping, land planning,
GPS (satellite) and ALTA surveying, and special computerized services, including forensic animations and
CADD modeling. See display ad on page 59.
550 South Hope Street Suite 1050, Los Angeles, CA
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
.com. Contact J. Thomas Wolfe. Specialties: 1. Valuation of environmental liabilities and other legal claims
using a decision tree approach that produces an accurate representation of liability cost versus the probability
of those costs being incurred. 2. Provision of crucial information to help assure products or services meet the
environmental, health, and safety requirements of the jurisdictions in which they do business. 3. Staff of Washington-based regulatory analysts monitor Federal and
state regulatory developments and interact with government officials to explain the interests of their clients. Degrees/License: hydrogeology, engineering, environmental law, toxicology, environmental scientists
90024-4341, (310) 208-2827, fax: (310) 208-6469. Web
healthcare, pharmaceuticals, intellectual property securities, valuation, auctions, advanced fabricated materials, chemicals and transportation. In concert with leading academic industry experts, CRA staff offer assistance to attorneys, executives, and governmental agencies in mergers involving economic model development
and application, market definition, damages assessment, and trial preparation/testimony. See display ad on
page 56.
FORENSISGROUP, INC.
HARGIS + ASSOCIATES, INC.
2365 Northside Drive, Suite C-100, San Diego, CA
92108, (800) 554-2744, (619) 521-0165, fax (619) 5218580, e-mail: [email protected]. Web site: www
.hargis.com. Contact David R. Hargis, PhD, RG. Expert
witness testimony, technical consultation, and litigation
support concerning hydrogeologic assessments to evaluate groundwater supply, basin studies, nature/extent of
soil/groundwater contamination, source identification,
identification of potentially responsible parties, cost allocation studies, and negotiations with USEPA and state
regulatory agencies involving cleanup levels and ap-
proval of RI/FS/RD/RA documents for various state and
federal Superfund sites. See display ad on page 63.
PACIFIC HEALTH & SAFETY, INC.
2192 Martin, Suite 230, Irvine, CA 92612, (949) 2534065, fax (949) 253-4071, e-mail: ksarley@phsc-web
.com. Web site: www.phsc-web.com. Contact Tim
Morrison. Providing quality consultation and expert
witness for mold, bacteria, lead, and asbestos. Certified
training for health and safety. OSHA, AQMD, and EPA
regulations. Emergency response coordination.
TRI-S ENVIRONMENTAL
Water and land offices, 3151 Airway Avenue, Building
H1, Costa Mesa, CA 92626, (714) 966-8490, fax (714)
966-5222, e-mail: [email protected]. Web site:
www.tri-s.com. Contact Joseph E. Odencrantz, PhD,
PE. MTBE, Chromium, TCE, PCE, Benzene, perchlorate
and metal fate and transport. Reconstruction of concentration histories in production wells, exposure assessment, and water supply impact projections.
ZYMAX FORENSICS
71 Zaca Lane, San Luis Obispo, CA 93401-7300, (805)
544-4696, fax (805) 544-8226, e-mail: forensics
@zymaxusa.com. Web site: www.zymaxforensics.com.
Contact Alan Jeffrey, sr. geochemist. Services: environmental forensics and geochemistry consulting, litigation support, and expert witness testimony. Specialties:
petroleum hydrocarbon analysis, gas geochemistry, biomarkers, PNAs, PCBs, oxygenates, fuel ID, mixing ratios,
age dating, metal analysis by ICP/MS, inorganic and wet
chemistry, stable isotope analysis, hydrology, and geothermal analytical. See display ad on page 62.
ESCROW
analysis and valuations/damages assessment, real estate brokerage, appraisal, escrow, construction defects/disputes, and title insurance.
EXPERT REFERRAL SERVICE
COMMERCE PARTNERS EXPERT WITNESS
GROUP
22647 Ventura Boulevard, #1313, Woodland Hills, CA
91364-1416, (818) 884-2525, fax (818) 222-7173, e-mail:
[email protected]. Web site: http://commercepartners.org. Contact Amy Werner, managing director.
Service: diversified group of over 100 experienced experts in banking, bankruptcy, business valuation, business failure, real estate, real estate appraisal, financial,
lending, mortgage banking, and more.
FORENSIC CONSULTANTS ASSOCIATION
ORANGE COUNTY CHAPTER AND
LOS ANGELES CHAPTER
2402 Vista Nobleza, Newport Beach, CA 92660, (949)
640-9903, fax (949) 640-9911, e-mail: nsfox@forensic
.org. Web site: www.forensic.org. Contact Norma S.
Fox, executive director. Free expert witness directory
available. Call to receive one. Experts available in many
different categories. See display ad on this page.
40 YEARS OF EXPERIENCE:
- Commercial Real Estate
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Lessees and Owners
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TECHNICAL AND MEDICAL EXPERTS
1945 Palo Verde Avenue, Suite 200, Long Beach, CA
90815, (800) 392-1119, fax (562) 799-8821, e-mail:
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Contact Rebecca deButts. Right Expert Right Away!SM
We welcome your rush cases! 4000 medical and technical experts in over 700 fields enables Pro/Consul to provide the best experts at a reasonable cost, including: reconstruction, accounting, engineering, biomechanical,
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SILICON VALLEY EXPERT WITNESS GROUP, INC.
800 W. El Camino Real, Suite 450, Mount View, CA
94040, (650) 965-2800, fax (650) 965-2818, e-mail:
[email protected]. Web site: www.svewg.com.
Contact Richard M. McCloskey, president & COO.
Silicon Valley Expert Witness Group, Inc., provides expert witness and consulting services to the legal profession. Our focus is on providing value-added solutions to
your high technology consulting and litigation support
requirements that require top-level expertise. Areas of
expertise include computer sciences and technology,
electrical engineering, electronic systems, Internet hardware and software, microelectronics, semiconductor technology, software, and telecommunications/telephony.
TASA (TECHNICAL ADVISORY SERVICE FOR
ATTORNEYS)
1166 DeKalb Pike, Blue Bell, PA 19422, (800) 523-2319,
fax (800) 329-8272, e-mail: [email protected]. Web
site: www.tasanet.com. Contact Jim Roberts. NEED AN
EXPERT? Save hours of staff time, effort, and expense at
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EXPERT WITNESS
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALISTS)
2640 Telegraph Avenue, Berkeley, CA 94704, (800)
275-8903, (510) 549-1693, fax (510) 486-1255, e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to
meet case requirements by AMFS Physician Partners
from our panel of over 3,500 carefully prescreened
board-certified practicing specialists in California. All
recognized medical specialties. Plaintiff and defense.
Fast, thorough, objective, and cost-effective. Medical
negligence, hospital and managed care, personal injury,
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record” –California Lawyer magazine. See display ad
on page 65.
VERN J. GRADY, CPA
EXPERT WITNESS DIRECTORIES
THE SOUTHERN CALIFORNIA DIRECTORY OF
EXPERTS AND CONSULTANTS
(213) 896-6470, fax (213) 613-1909, e-mail: forensics
@lacba.org. Web site: www.expert4law.org. Contact
Debbie Beimer. Look no further! The Los Angeles
County Bar Association has the ONE and ONLY directory you will ever need! The Southern California Directory
of Experts & Consultants is the most comprehensive registry of legal expertise in the region. With more than
2,500 listings of medical, technical, scientific, and forensic expert witnesses, dispute resolution professionals, litigation consultants, trial support services, and the
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to be THE valuable resource for the legal professional.
This annual publication is free to County Bar members.
Expert Witness, Consultant,
Mediation, Dispute Resolutions
HANK KRASTMAN, PH.D., J.D.
Retired L. A. City Building Inspector and Mechanical
Inspector, ICBO licensed for all other Municipalities.
Tel/Fax: 818/727-1723 • Toll Free: 1-866/496-9471
I.C.B.O. (International Conference of Building Officials) Certified:
Licensed B–General Building, C-10 Electrical, C-20 Heating Ventilating and Air Conditioning, 33 years experience in construction;
State E.Q. Certified Inspector.
(Since 1986–High Settlements) Slip and Fall, Construction
Defects, Wrongful Death, Toxic-Environmental, Burn-Fire, Electric
injuries, Contract Dispute, Landslides, Failing Walls/Retaining,
Earthquake, Disabled Access, Construction Injuries, Building and
Safety matters. Planning Zoning, Fallen Trees, Holes in street,
Sidewalk, Parking Lots, Scalding. Contractors License Board, etc.,
C.V. on request.
Associate Experts: Ken Bedirian, R.E. Broker, J.D., Eric Fintzi,
Art-Antique & Appraisals and Sam Mahseredjian, Investigator
Free Case Evaluation: LAWNETINFO.COM
EXPERT WITNESS • PSYCHIATRY
GILBERG, ARNOLD L., M.D., PH.D
• Appointed to Medical Board of California
(11th district MORC) by Governors Brown, Jr.,
Dukmejian, and Wilson (1982-1991)
• Associate Clinical Professor of Psychiatry,
UCLA School of Medicine
• All areas of civil litigation
• Board Certified since 1971
E-Mail: [email protected]
TEL 310/274-2304
FAX 310/203-0783
9915 Santa Monica Blvd., Suite 101
Beverly Hills, CA 90212
EXPERT WITNESS WEB SITES
EXPERT4LAW—THE LEGAL MARKETPLACE
(213) 896-6561, fax (213) 613-1909, e-mail: forensics
@lacba.org. Web site: www.expert4law.org. Contact
Melissa Algaze. Still haven’t found who you’re looking
for? Click here! expert4law—The Legal Marketplace is
the best online directory for finding expert witnesses,
legal consultants, litigation support, lawyer-to-lawyer networking, dispute resolution professionals, and law office
technology. This comprehensive directory is the onestop site for your legal support needs. Available
24/7/365! Brought to you by the Los Angeles County Bar
Association.
FAILURE ANALYSIS
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 7271-CD Garden Grove
Boulevard, Garden Grove, CA 92841, (714) 892-8987,
fax (714) 894-0225, e-mail: [email protected]. Web site:
www.karslab.com. Contact Drs. Ramesh J. Kar or
Naresh J. Kar. Southern California’s premier materials
/mechanical/metallurgical/structural/forensics laboratory.
Registered professional engineers with 20-plus years in
metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both
plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals
are fellows of American Society for Metals and boardcertified diplomates, American Board of Forensic Examiners. See display ad on page 57.
“Mr. Truck”
ACCIDENT
INVESTIGATION and RECONSTRUCTION
✔ Court Qualified Expert Witness Regarding
Car vs Car, Car vs Bicycle, Truck vs Car Cases
✔ Low Speed Accident Analysis
✔ Trucking Industry Safety and Driver Training Issues
✔ Power Point Court Presentations
William M. Jones
800 337 4994
P. O. Box 398
925 625 4994
Brentwood CA 94513-0398
Pager 510 840 4627
[email protected]
www.mrtruckar.com
Fax 925 625 4995
FAMILY LAW
@aol.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 59.
CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail:
[email protected]. Web site: www.gursey.com.
Contact David Cantor, David Swan, or Stephan
Wasserman. Forensic accounting and litigation support
services in the areas of marital dissolution, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and costprofit assessments, insurance claims, court accounting,
tracing, and entertainment industry litigation. See display ad on page 52.
ConfidenceAtThe Courthouse.
Business litigation is increasingly complex. That is why we believe valuation
issues must be addressed with the same meticulous care
as legal issues. Analysis must be clear. Opinions must be
defensible. Expert testimony must be thorough and
articulate. HML has extensive trial experience and can
provide legal counsel with a powerful resource for expert
testimony and litigation support.
For More Information Call 213-617-7775
Or visit us on the web at www.hmlinc.com
BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS
A R TECH
FORENSIC EXPERTS INC.
Experienced engineers
Advanced degrees
Extensive trial experience
▼ Accident Reconstruction
Vehicle Collision Analysis, Speed, Time
Motion History, Biomechanics Vehicle
Components: brakes, seats, seatbelts, etc.
▼ Product Liability
Failure Analysis, Machinery, Guarding,
Safety, Industrial & Consumer Products
▼ Construction
Code Analysis Stairway, Ramps, Doors,
Windows, Guard rails, Roof, Walkways,
Pools Industrial & Residential
▼ Slip/Trip & Fall
Coefficient or Friction. Trip Hazard, Lighting
TELEPHONE:
FAX:
818-344-2700
818-344-3777
18075 Ventura Blvd, Suite 209, Encino, CA 91316
/public litigants in land use, real estate development, environmental protection, mass tort (including toxic tort),
90025, (310) 571-3400, fax (310) 571-3420, Web site
page 46.
WOLF
14455 Ventura Boulevard, Suite 300, Sherman Oaks,
CA 91423, (818) 981-4226, fax (818) 981-4278, and 333
City Boulevard West, 17th Floor, Orange, CA 92868,
(714) 939-1781, fax (714) 938-3874, e-mail: expert
@wzwlw.com. Contact Barbara Luna, Drew Hunt, Paul
White, Jack Zuckerman, Fred Warsavsky, and Bill
Wolf. Expert witness testimony for business, real estate,
personal injury, and marital dissolution. Investigative
analysis of liability, damage analysis of lost profits and
earnings, fraud investigation, business and real estate
valuation, and tax planning and preparation. Hundreds
of times as expert witnesses. Prior “big four” accounting
firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset
tracing analysis, intellectual property, product liability,
real estate, spousal support, tax, valuation of businesses
and real estate, unfair advertising, unfair competition,
and wrongful termination. See display ad on page 15.
FINANCIAL
ANDELA CONSULTING GROUP, INC.
91403, (818) 380-3102, fax (818) 501-5412, e-mail:
[email protected]. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lending,
forgery, endorsements, letters of credit, guarantees,
lender liability, checking accounts, credit cards, and
bankruptcy. Expert witness, litigation consulting. Expert
referral service escrow, corporate governance, mortgage banking, and real estate.
ERNST & YOUNG LLP
serving the legal community full time. We offer a full
quantification of damages, settlement negotiations and
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
VERN J. GRADY, CPA
and management consultants providing litigation support, simulation, and modeling to courts and
corporate/public litigants in land use, real estate development, environmental protection, mass tort (including
toxic tort), insurance, finance, housing, minority rights,
education, and employment cases. Degrees/license:
MBAs, PhDs, cert. planners, MPAs, MCPs.
91403-3023, (818) 905-5822, fax (818) 905-5867, 74478 Highway 111, Suite 254, Palm Desert, CA 92260,
(760) 779-0990, fax (760) 779-0960, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miod-cpa
.com. Contact Donald John Miod, CPA, ABV, CVA,
CBA. More than 28 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, earnings loss calculations, and income tax matters. Our firm is very computeroriented, involving the use of computer graphics. We are
members of the Institute of Business Appraisers, the International Society of CPAs (founding member), the
American Institute of CPAs, and California Society of
CPAs. See display ad on page 60.
FINANCE
page 46.
An expert who can fully discuss causation!
David M. McCann, M.D.-M.S. Engrg.
• Biomechanics and Accident Reconstruction
• Medicine—including spinal injuries
Able to testify about the accident and as a licensed physician, also
about causation—whether it did or did not cause the alleged injuries.
Also excessive force and shaken baby cases.
(916) 863-7275
4944 Sunrise Blvd., Suite F, Fair Oaks, CA 95682 (Sacramento area)
Los Angeles office also available
— EXPERT WITNESS IN —
INFERTILITY, GYNECOLOGY & OBSTETRICS
IVF (In Vitro Fertilization) • LASER SURGERY •
LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY
GIL N. MILEIKOWSKY, M.D.
OFFICES: Encino and Beverly Hills
2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077
TEL (310) 858-1300 • FAX (310) 858-1303
TEL (818) 981-1888 • FAX (818) 981-1994
Please see listing under the heading of OBSTETRICS & GYNECOLOGY for more information.
FIRE/EXPLOSIONS
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
product injuries, chemical fires and explosions, chemical
FTIR, etc. PhD. physical chemistry, certified fire and explosion investigator, NACE accredited in corrosion,
JAMES MCMULLEN
1260 Lake Boulevard, Suite 250, Davis, CA 95616, (530)
Web site: www.themcmullencompany.com. Contact
James McMullen. Former California State Fire Marshal.
Fire/building code analysis, code compliance inspections, fire cause and origin investigation, fire services
management review, emergency management planning
and training, hazardous materials programs, fire safetyrelated product analysis. Expert witness and litigation
consultation.
FORENSIC ACCOUNTING
90024, (310) 873-1717, fax (310) 873-6600. Contact
.com. Web site: www.vlsllp.com. Contact Royce
Stutzman, CVA, CPA, chairman. Our certified professionals serve as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers and acquisitions, buy-sell agreements,
purchase/sale of closely held businesses, partner disputes, etc. Our forensic accounting experts assess the
amount of an economic loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from
various events. Our fraud investigation team reviews
documentation, interviews witnesses and suspects, and
assesses evidence to resolve allegations. We provide
expert witness testimony and implement fraud prevention programs.
FRAUD INVESTIGATIONS
HOTEL
MAURICE ROBINSON & ASSOCIATES LLC
4720 Lincoln Boulevard, Suite 300, Marina Del Rey,
CA 90292, (310) 578-0470, fax (310) 578-6552, e-mail:
[email protected]. Web site: www.jurispro.com
/mauricerobinson Contact R. Maurice Robinson, president. Hotel and real estate industry business issues, including market, economic and financial feasibility, valuation, and disputes between owner-operator, borrowerlender, and franchisor-franchisee. Fluent in management
contracts, license agreements, ground and building
leases, partnership and JV agreement, concession contracts, development agreements, and loan docs. Can
estimate damages and appraise property values under
multiple scenarios. Expert witness testimony, litigation
strategy, consultation and support, damage calculations,
lost profits analysis, real estate appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and
economic, financial, and investment analysis.
INSURANCE
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related to
litigation, arbitration, valuation and other financial and
coverage, investigative and forensic accounting and auditing, and business valuations. Degrees/License: CPAs;
CFEs; CVAs; JDs.
E. L. EVANS ASSOCIATES
3310 Airport Avenue, Box 2, Santa Monica, CA 90405,
(310) 559-4005, fax (310) 390-9669, e-mail: elevans66
@yahoo.com. Contact Gene Evans. Good faith/bad
faith. Over 40 years’ experienceclaims adjuster, good
faith, bad faith, standards and practices in the industry,
claims litigation support, claims consultation, case review and evaluation, property/casualty claims, construction claims, uninsured/underinsured motorist claims,
general liability, fire/water claims, and suspected fraud
claims. CV on request.
LAUNIE ASSOCIATES, INC.
1165K Tunnel Road, Santa Barbara, CA 93105, (805)
Contact Joseph J. Launie, PhD, CPCU, insurance
professor, author and consultant. Over 23 years’ experience as expert witness in state and federal courts.
Coauthor of books and articles on underwriting, insurance company operations, and punitive damages. Consulting, expert witness on underwriting, company and
agency operations, and bad faith.
CLINTON E. MILLER, JD, BCFE
502 Park Avenue, San Jose, CA 95110, (408) 279-1034,
www.quikpage.com/m/millerjd. Insurance bad faith expert dealing with customs and practices in the insurance
industry, coverage disputes, underwriting, agents, brokers duties and responsibilities. See display ad on
page 68.
BARRY ZALMA, ESQ., CFE
4441 Sepulveda Boulevard, Culver City, CA 90230,
(310) 390-4455, fax (310) 391-5614, e-mail: zalma
@zalma.com. Web site: www.zalma.com. Insurance bad
faith. Coverage, claims handling, and fraud. Consultant
and expert witness on all property and casualty insurance claims matters. Author of Insurance Claims – A
Comprehensive Guide.
INSURANCE/LIFE AND DISABILITY
THE SKYLINE GROUP
21333 Oxnard Street, Woodland Hills, CA 91367, (888)
900-6000, e-mail: [email protected]. Web
site: www.skylinegroup.net. Contact Steven Fuld.
Expert witness and litigation consultant. Specializing in
policy selection and suitability review, due diligence and
disclosure issues, expert in NAIC disclosure regulations,
coverage analysis in light of total estate and financial
planning, and professional misconduct matters. Coauthor Business Insurance Law & Practice (Matthew
Bender & Co.), Lecturer at Pepperdine, Loyola Marymount, Cal State University, and Georgetown University.
Past director of American Society of CLU & ChFC (SFV
chapter).
INTELLECTUAL PROPERTY
90025, (310) 571-3400, fax (310) 571-3420, Web site
page 46.
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
INVESTIGATIONS
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
@fulcruminquiry.com. Web site: www.fulcruminquiry.com.
page 45.
JACK TRIMARCO & ASSOCIATES
POLYGRAPH/INVESTIGATIONS, INC.
9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA
90210, (310) 247-2637. Contact Jack Trimarco. I am
the former polygraph inspection team leader for the U.S.
Department of Energy. I have viewed polygraph from
many perspectives…as an examiner, as a trainer, and
as unit chief of the Federal Bureau of Investigation’s
polygraph program in Los Angeles. This unique background allows me to bring the highest levels of service,
expertise, and credibility to any polygraph situation while
impressing any audience with the truth. Since my retirement from the FBI in May 1998, I have had significant
impact on my clients’ cases in the criminal and civil arenas. Please see display ad on page 27.
SPECIALIZED INVESTIGATIONS
14530 Delano Street, Van Nuys, CA 91411, (818) 9099607, fax (818) 782-3012, e-mail: [email protected].
Web site: www.specialpi.com. Contact Richard Harer.
Trial preparation, locates, computer forensics, statements, insurance, workers’ compensation, surveillance,
employment/labor, civil, criminal, asset searches, background checks, and information services. In business
since 1982. Spanish- and Korean-speaking investigators.
LAW ENFORCEMENT/SECURITY
INVESTIGATIVE SERVICES CORPORATION
150 East Olive Avenue #304, Burbank, CA 91502, (818)
Web site: www.investigativeservices.com. Contact Dan
Sullivan. Expert witness—police practices/facility security, security consultant to City of Los Angeles, Beverly
Hills, and U.S. Department of Justice. Testified over 100
times in superior/federal courts as a qualified expert.
EDMONDS ASSOCIATES
CONSULTANTS, INC.
CONSTRUCTION CONSULTANT
EXPERT WITNESS
Discovery | Analysis | Consultation | Testimony
Defect; Care, Custom &
Practice; Delay/Acceleration Cause and Effect;
Construction Costs: Forensic, Remedial and Current; Management, Constructability, Accidents, Insurance Bad Faith
Solid background in General Contracting (Building, site and gen. Engrg;
hard bid and negotiated;
union and open shop; standard and design-build
industrial, commercial, residential, office, institutional, water treatment, site development, grading.
REX T. EDMONDS
5020 Campus Drive
Newport Beach, CA 92660
TEL: 949/250-8858 • FAX: 760/591-0733
edmondsconsultants.com
Bachelor Of Science, Civil Engineering
Certified Professional Estimator, ASPE
California Licensed Contractor, B. #692273
LEGAL MALPRACTICE
LAW OFFICES OF PHILLIP FELDMAN
91403, (310) LEG-MALP. Web site: www.legalmalpracticeexpt
.com. Expert review or testimony for any underlying
transaction or litigation, ABA board certified specialist in
legal malpractice, former state bar prosecutor, ASCDC
and CAOC. Standard of care, conduct, ethics, fees,
case within a case, contract, family law, real property,
business, accounting, complex litigation, malpractice,
trial, and any tort or commercial transaction. Call for CV
or fax.
LAW OFFICES OF CHRISTOPHER ROLIN
21031 Ventura Boulevard, 12th Floor, Woodland Hills,
CA 91364, (818) 347-7550, fax (818) 347-7905, e-mail:
[email protected]. Web site: www.chrisrolin.com.
Contact Christopher Rolin. Christopher Rolin is a
highly effective trial attorney with over 35 years of trial
activity in civil litigation. His area of emphasis is attorney
malpractice, focusing on the applicable community standard of care for practicing attorneys in the litigation
areas. His trial experience has resulted in numerous assignments as an expert witness on trial and standards of
care issues. He has been retained as an expert by both
plaintiffs and defendants in legal malpractice cases. He
has spoken before numerous professional groups concerning trial practice issues.
LITIGATION
90071, (213) 892-1860, fax: (213) 892-2300, e-mail:
.com. Contact Douglas Trueheart. Specialties: Professional consulting and expert witness services related to
Construction Claims
When you’re handling a
construction dispute, you’ll be
glad to know who we are.
Pacific Construction
Consultants, Inc. will assist in
uncovering and analyzing facts
important to your case.
Our highly experienced staff
will provide support from the
first analysis to the last day in
court–investigating, making the
complex understandable, and
presenting evidence through
expert testimony and trial
support graphics.
Pacific Construction
Consultants, Inc. is responsive,
factual, and results-oriented.
For more information, call
1-800-655-PCCI.
PACIFIC CONSTRUCTION
CONSULTANTS, INC.
Physician • Medical Toxicologist
Toxic chemical exposures,
molds, (Stachybotrys, etc.)
pesticides, solvents, gases,
hydrogen sulfide.
T
wenty years forensic consulting
and testifying experience establising/refuting causation based on
analysis of discovery information
and application of generally
accepted medical principles.
Lic/Certif: MD (CA); Certified,
Occupational Medicine; Diplomatic, American Board of Forensic
Medicine, Previously: Medical
Professor, UC Berkeley; Senior Scientist, Stanford Research Institute.
Fifty publications in medical/
scientific journals.
Thomas H. Milby, M.D.
1399 Ygnacio Valley Rd., Suite 25
Walnut Creek, CA 94598
TEL: 925/284-4944
FAX: 925/256-4617
http://toxicology.leadingexperts.com
litigation, arbitration, valuation, and other financial and
coverage, investigative and forensic accounting and auditing, and business valuations. Degrees/License: CPAs,
CFEs, CVAs, JDs.
gations, statistics, forensic economic analysis, royalty
page 45.
MARKETING RESEARCH
90024-4341, (310) 208-2827, fax: (310) 208-6469. Web
healthcare, pharmaceuticals, intellectual property securities, valuation, auctions, advanced fabricated materials, chemicals, and transportation. In concert with leading academic industry experts, CRA staff offer assistance to attorneys, executives, and governmental agencies in mergers involving economic model development
and application, market definition, damages assessment, and trial preparation/testimony. See display ad
on page 56.
@aol.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 59.
90025, (310) 571-3400, fax (310) 571-3420, Web site
page 46.
MACHINERY & EQUIPMENT
ASSET RELIANCE INC.
425 West Bonita Avenue, Suite 101, San Dimas, CA
91773, (909) 394-1731, fax (909) 397-7432, e-mail:
assetreliance.com. Web site: [email protected]
.net. Contact Edward D. Testo, Jr. Machinery and
equipment appraisals in industries. Inventories, furniture,
fixtures and equipment. Commercial/industry real property, business valuations. Expert witness/litigation support. Accredited Senior Appraiser-American Society of
Appraiser, Machinery and Technical specialist. Member
National Association, California Real Estate Brokers.
MANAGEMENT
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
and intangible asset valuations, appraisals, fraud investi-
COGAN RESEARCH GROUP
3528 Torrance Boulevard, Suite 219, Torrance, CA
90503, (310) 316-4289, fax (310) 316-4939, e-mail:
[email protected]. Contact Sandra R.
Cogan. Specialties: conducts surveys and acts as expert witness on surveys. Survey types: trademark (likelihood of confusion, secondary meaning, genericness,
dilution), design patent infringement, misleading advertising, defamation of character, right of publicity, and
copyright infringement. Phone or fax for information.
MARINE & MARITIME
THOMAS W. BELL
Senior Marine Surveyor, ASA/SAMS. 1323A Berkeley
Street, Santa Monica, CA 90404-2503, (310) 828-5329,
fax: (310) 828-5329. Contact: Thomas W. Bell & Associates. Specialties: Operate full survey business. More
than 40 years’ experience in marine surveying, appraisal, construction, loss and salvage, investigative services, and auto gaging. Surveyed 6,000+ vessels; related harbor facilities including doc, wharfage, tankage,
etc. Services utilized by US Coast Guard. Expert witness
experience on numerous cases of damage, valuation
and safety. National Page: 310/313-8000. Degrees/license: Society of Accredited Marine Surveyers, ASA,
SAMS, IAMI, ABYC, SNAME, NFPA, ASNDT Level III Department of Justice and other Federal Agencies.
Qualified ASNDT VCTA Sonics Level III.
MARRIAGE DISSOLUTION
VERN J. GRADY, CPA
V.E.S. INC.
2171 Campus Drive, Suite 240, Irvine, CA 92612, (800)
734-2248, fax (949) 975-1456. Contact Stephanie
Simpson. Serving the legal community since 1977 providing expert witness testimony. Specializing in matter of
future earning potential, lost wages analysis, and labor
market assessment for marriage dissolution cases. Provide labor market assessments, ergonomic evaluations,
vocational testing, vocational, and return to work analysis. Our services are specific to your client’s needs. See
MECHANICAL ENGINEERING
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618, (949)
790-0010, fax (949) 790-0020, e-mail: mlewis@ctg-net
.com. Web site: www.ctg-net.com. Contact Dr. Malcolm
Lewis, PE. Construction related engineering, plumbing,
mechanical (heating, ventilating, A/C) and electrical
(power, lighting), energy systems, residential and nonresidential buildings, construction defects, and construction claims.
MEDICAL
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALISTS)
2640 Telegraph Avenue, Berkeley, CA 94704, (800)
275-8903, (510) 549-1693, fax (510) 486-1255, e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to
meet case requirements by AMFS Physician Partners
from our panel of over 3,500 carefully prescreened
board-certified practicing specialists in California. All
recognized medical specialties. Plaintiff and defense.
Fast, thorough, objective, and cost-effective. Medical
negligence, hospital and managed care, personal injury,
product liability, and toxic torts. “A 92 percent win
record” –California Lawyer magazine. See display ad
on page 65.
BRUCE WAPEN, MD
EMERGENCY MEDICINE EXPERT
969-G Edgewater Boulevard, Suite 807, Foster City, CA
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
[email protected]. Web site: www.DrWapen
.com. Contact Bruce Wapen, MD. Board-certified emergency physician and experienced public speaker offers
consultation, chart review, and testimony as an expert
witness for plaintiff or defense involving litigation arising
from the emergency department. See display ad on
this page.
MEDICAL/EMERGENCY MEDICINE
STANLEY M. BIERMAN, MD, FACP
2080 Century Park East, Los Angeles, CA 90067, (310)
553-3567, fax (310) 553-4538, e-mail: sbiermanmd
@aol.com. Dr. Bierman is an expert witness in matters
relating to diagnosis and treatment of skin cancer and
sexually transmitted disease. Author of 60 published scientific papers; he is president of UCLA Dermatology
Clinical Faculty and past president of Los Angeles Dermatologic Society.
JOHN J O’HARA, MD
ORTHOPAEDIC SURGERY/SURGERY OF
THE HAND
90503, (310) 316-6190, fax (310) 540-7362, e-mail:
[email protected]. Specialties: orthopedist with special
qualification in hand surgery. Assistant Clinical professor, orthopedic surgery, Harbor-UCLA Medical Center.
Member, American Society for Surgery of the Hand.
American Orthopedic Society for Sports Medicine. Qualified Medical Examiner, the American Board of Independent Medical Examiners. Diplomate, American Board of
Forensic Medicine.
BRUCE WAPEN, MD
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
this page.
MEDICAL/NEUROLOGY
ROGER V. BERTOLDI, MD
8610 South Sepulveda Boulevard, Suite 200, Los Angeles, CA 90045-4810, (310) 670-5555, fax (310) 6709222. Web site: www.ben2.ucla.edu/~rbertold. Contact
Angelica. Traumatic brain injury (TBI): Neuro behavioranatomical-functional (PET, brain-mapping, neuropsychological) workup and treatment. Diplomate (ABPN)
qualification in clinical neurophysiology: electrodiagnostics of electromyography (EMG), electroencephalography (EEG), and evoked potentials for carpal tunnel syndrome (CTS), complex regional pain syndrome (CRPS),
back pain radiculopathy, peripheral nerve injuries, neu-
rotoxic injuries, and chronic pain, somatoform disorders,
epilepsy, dementia, headache, assistant clinical professor of neurology, UCLA, AME, QME, IME.
MEDICAL/NEUROLOGY/PERSONAL INJURY
ANDREW WOO, MD, PhD
2021 Santa Monica Boulevard, Suite 525-E, Santa Monica, CA 90404, (310) 829-2126, fax (310) 998-8887, email: [email protected]. Contact Lorna. Board-certified
neurology, clinical assistant professor UCLA, personal
injury, pain, carpal tunnel, spine, memory, seizure,
sleep, and clinical protocols. Multiple sclerosis, migraine, and stroke. Education: AB Cornell University, MD
and PhD. Brown University; residency + EMG/EEG fellowship UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s Sleep Lab; honors: Who’s Who in Medicine (2001) and Science/Engineering (1993), international electrophysiology Young Investigator (1997),
UCLA Neurology Teaching Awards (1994, 1996), American Academy Neurology Research (1991), Brown University Sigmax (1989), and research/publications (14),
lectures (115).
MEDICAL/PLASTIC AND COSMETIC RECONSTRUCTIVE SURGERY
JEFFREY L. ROSENBERG MD, F.A.C.S.
90017, (213) 977-0257, fax (213) 977-0501. Contact
Martha. Plastic and reconstructive surgery, burn specialist. Diplomate, American Board of Plastic Surgery.
Member, American Burn Association and American Society of Plastic Surgeons.
BRUCE WAPEN, MD, FACEP
Your expert for malpractice litigation arising from the
emergency department
• 27 years in emergency medicine
• Successful outcomes in cases for both plaintiff and defense
969-G Edgewater Blvd #807
Foster City, CA 94404-3760
(650) 577-8635
FAX (650) 577-0191
TEL
www.drwapen.com
• Riveting public speaker – Accomplished at deposition and
trial testimony
• Teaching experience with Stanford, U.C. Davis, and
Letterman Army Medical Center
MEDICAL MALPRACTICE
Insurance Bad Faith Expert
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
38 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
• Coverage Disputes • Customs and Practices in the Claims Industry
• Good Faith/Bad Faith Issues
(408) 279-1034 ■ FAX (408) 279-3562
GARY ORDOG, MD
(FACEP, FAACT, FABME, FABFE, FABPS)
23206 LYONS AVE., SUITE 104, SANTA CLARITA, CA 91321
PHONE: (661) 799-1689 ■ FAX: (661) 799-3453
E-MAIL: [email protected] ■ WEBSITE: http://dwp.bigplanet.com/toxic
Board Certified in:
■ American Board of
Emergency Medicine
■ Professor of Medicine,
UCLA–12 Years
■ American College of
Emergency Physicians
■ Board Examiner,
American Board of
Emergency Medicine,
6 years
■ American Academy of
Clinical Toxicology
■ 23 years experience
Medical Toxicology
■ Full-time, front-line
physician
Forensic Examiners
■ 34 text books
Medical Examiners
■ 1000+ cases reviewed
Psychological
Specialities (Traumatic
Stress and Disability
Assessment)
■ Residency and
Fellowship trained
■ 800+ Articles
■ 300+ depositions
■ 100+ trials
■ Stachybotrys
■ Criminal and civil
■ Medical consultation and
treatment, case review,
expert witness
ELIEZER NUSSBAUM, MD, FAAP, FCCP, FCCM
2801 Atlantic Avenue, Long Beach, CA 90806, (562)
933-8740, fax (562) 933-8744, e-mail: enussbaum
@memorialcare.org. Dr. Nussbaum is much sought after,
with over 21 years’ experience as an expert witness and
over 150 depositions. Triple board certified. Pediatrics,
pediatric pulmonary, and pediatric critical care. Experienced in pediatric critical care, emergency trauma medicine, hospital care, medical case review, and medical
malpractice. Dr. Nussbaum is professor of pediatrics,
UC Irvine; chief of pediatric pulmonary medicine; medical director of pediatric pulmonary and cystic fibrosis.
Fluent in English and Hebrew.
BRUCE WAPEN, MD
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
page 67.
LESTHER WINKLER MD
Encino-Tarzana Regional Medical Center (retired; retained as consulting emeritus status) 10155 Topeka
Drive, Northridge, CA 91324, (818) 349-8568, fax (818)
993-9701. Contact Lesther Winkler, MD. Specialties:
surgical and autopsy pathology, clinical pathology. Forty
years’ experience in general review of medical records
(hospital records, office records, etc.) with emphasis on
pathology aspects, gross and microscopic, and relationships to general medical and hospital care. Experience
with hospital bylaws, rules and regulations, consent issues, medical staff privileges, etc. Also experienced in
hospital healthcare law, medical hospital and “outside”
ethical medical issues. Represented physicians in matters before California Medical Board. Ethics committees:
helped establish concepts and chaired hospital committees for more than 10 years, general review of medical
and surgical case management, etc.
MEDICAL TOXICOLOGY
THOMAS H. MILBY, MD
1399 Ygnacio Valley Road, Suite 25, Walnut Creek, CA
94598, (925) 284-4944, fax (925) 256-4617, e-mail: tmilby
@aol.com. Web site:www.toxicology.leadingexperts
.com. Contact Thomas H. Milby, MD. Physician, medical toxicologist, toxic chemical exposures, molds
(stachybotrys, etc.), pesticides, solvents, gases, and hydrogen sulfide. Twenty years’ forensic consulting and
testifying experience establishing/refuting causation
based on analysis of discovery information and application of generally accepted medical principles. Licenses
/certificates: MD (CA): certified, occupational medicine;
diplomate, American Board of Forensic Medicine. Previously: Medical Professor, UC Berkeley; senior scientist,
Stanford Research Institute. Fifty publications in medical/scientific journals. See display ad on page 66.
GARY J. ORDOG, MD
P/Professor, UCLA/Drew School, 23206 Lyons Avenue,
Suite 104, Santa Clarita, CA 91321, (661) 799-1689, fax
(661) 799-3453, e-mail: [email protected]. Web site:
http://dwp.bigplanet.com/toxic. Contact Gary J. Ordog,
MD. Board-certified medical toxicologist. Board certified
emergency medicine specialist. Medical/legal expert on
environment exposures, stachybotrys and other building-related molds, poisonings, snake/insect/animal bites,
and fetal toxicology. Author of major textbook, Ellenhorn’s Medical Toxicology, the most significant reference text on this subject. Available for medical treatment, consultation, chart review, and expert witness.
Degrees/license: MD (CA), FACEP, FAACT, FABFE,
FABME. See professional announcement on page 68.
METALLURGY
COATES ENGINEERING SERVICES
4955 Winnetka Avenue, Woodland Hills, CA 91364,
(818) 883-5886, fax (818) 883-5887, e-mail: djcoates
@earthlink.net. Contact David J. Coates, PhD, PE. Failure analysis, metallurgical engineering, corrosion, products liability, aircraft, automobiles, bicycles, tools, chairs,
ladders, medical implant, and copper and galvanized
steel plumbing. Experienced testifier. Call for additional
information and CV.
HARRY SCHWARTZBART
10951 Oklahoma Avenue, Chatsworth, CA 91311, (818)
Contact Harry Schwartzbart. Forensic metallurgy. Failure analysis. Expert testimony. Welding. Mechanical behavior. Coatings. Products include auto and truck components, bicycles, motorcycles, crashworthiness, chairs,
ladders, surgical equipment, wheelchairs, orthopedic
implants, plumbing systems, pressure vessels,
pipelines, heat exchangers, fasteners, bolts, swimming
pool equipment, toys, and lawn mowers.
REAL ESTATE, BANKING, MALPRACTICE
EXPERT WITNESS – SAMUEL K. FRESHMAN, B.A., J.D.
Attorney and Real Estate Broker since 1956 • Banker • Professor • Legal
Malpractice • Arbitration • Brokerage • Malpractice • Leases •
Syndication • Construction • Property Management • Finance • Due
Diligence • Conflict of Interest • Title Insurance • Banking • Escrow •
Expert Witness • 20+ years State & Federal Courts • 21 articles •
Arbitrator • Mediator • $300,000,000+ Property
6151 W. Century Blvd., Suite 300, Los Angeles, CA 90045
(310) 410-2300 ■ Fax (310) 410-2919
Daniel Powers, M.D., Inc.
R
A
D
I
O
L
O
G
Y
B Reader
Board Certified Diagnostic and Nuclear Radiologist
Providing Statewide Diagnostic Imaging Services and Second Opinions
Deposition, Arbitration and Trial Support
Pre-trial Research and Education
Liens Accepted on Primary Imaging Studies
6200 Wilshire Blvd, Suite 1008, Los Angeles, CA 90048
(800) 222-6768 • (323) 933-5100 • Fax (323) 933-4966
Web addresses: www.themripeople.com • www.msus.com • www.breader.com
E-mail address: [email protected]
METALLURGICAL AND CORROSION
ENGINEER
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
product injuries, chemical fires and explosions, chemical
FTIR, etc. Ph.D. physical chemistry, certified fire and explosion investigator, NACE accredited in corrosion,
Consultation and expert witness for:
• Mold, bacteria, and microbiological contamination
• Industrial hygiene, indoor air quality, confined spaces
• Asbestos and lead matters
• OSHA, AQMD, & EPA regulations
• Safety engineering & consultation
• Environmental compliance
• Health & Safety Training
• Emergency Response Coordination
2192 Martin
Ste. 230
Irvine, CA 92612
Ph. 949.253.4065
2803 West Busch Blvd.
Ste. 103
Tampa, FL 33618
Ph. 813.915.0660
7710 Balboa Ave.
Ste. 227E
San Diego, CA 92111
Ph. 858.278.8550
NURSING
FYLER ASSOCIATES
2138 Westmoreland Drive, Brea, CA 92821, (800) 9954279, fax (714) 990-4629, e-mail: [email protected]. Web
site: www.fyler.com. Contact Patricia Fyler RN. Virtually
all nursing specialties. Case screening and development, summary and chronology, expert witnesses, plaintiff or defense, life care planning, DME, and deposition
attendance. Throughout California. If there is a medical
component we can help.
MED-LINK
3362 Budleigh Drive, Hacienda Heights, CA 91745,
(626) 333-5110, fax (626) 968-0064, e-mail: dorothy
@unidial.com. Contact Dorothy Pollock, LNCC. Registered nurse with 34 years’ clinical experience. Nontestifying services include case analysis/for merit, chronology, translation, written reports, medical record organization, billing fraud investigation; DME/IME accompaniment including tape recording and written report. Expert
witness and testifying services including affidavit, arbitration, declaration, deposition, and trial. Class action
and case management.
OBSTETRICS AND GYNECOLOGY
GIL N. MILEIKOWSKY, MD.
Offices in Encino and Beverly Hills, 2934? Beverly Glen
Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300, fax
(310) 858-1303, (818) 981-1888, fax (818) 981-1994.
Contact Gil N. Mileikowsky, MD, OB/GYN. IVF, laser
surgery, laparoscopy, and reproductive endocrinology.
Diplomate, board certified by the American Board of
OB/GYN. Board eligible, American Board of Reproductive Endocrinology Division. Fellow, American College of
OB/GYN. Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive
Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser
and Safety Committee at Northridge Hospital and member of the Los Angeles County Medical Association. Author, numerous scientific papers and articles published
in peer review journals. Clinical Assistant Professor,
OB/GYN at UCLA. See display ad on page 63.
PAUL SINKHORN MD, FACOG, MCP
2642 Marley Drive, Riverside, CA 92506, (909) 2412745, fax (909) 779-9189, e-mail: [email protected]. Web
site: www.expertdoc.net. Contact C. Paul Sinkhorn
MD, FACOG, MCP. Board-certified OB/GYN, clinical associate professor, University of California Riverside,
teaching faculty, Arrowhead Regional Medical Center,
professional liability committee for San Bernardino Medical Association, peer reviewer for California Medical Association, deposition/trial experience, expert laparoscopist, and HMO liability. AAGL, AOA. Degrees/license: MD, FACOG, Microsoft certified professional.
OCCUPATIONAL/ENVIRONMENTAL
MEDICINE
JONATHAN S. RUTCHIK, MD, MPH, QME
Neurology, Electromyography, Clinical Neurotoxicology,
Occupational and Environmental Medicine. 1145 Bush
Street, #101, San Francisco, CA 94109, (415) 771-3133,
cell (415) 606-1465, fax: (415) 922-6344, e-mail: jsrutch
@neoma.com. Web site: www.neoma.com. Contact
Jonathan S. Rutchik, MD, MPH. Clinical evaluations
and treatment, including electromyography of individuals and populations with suspected neurological illness
secondary to workplace injuries or chemical exposure.
Other services include independent medical examinations, medical record review, utilization review and consulting to industrial, legal, government, pharmaceutical,
and academic institutions. Specialties include neurology, occupational/environmental medicine, neurotoxicology, electromyography, organic solvents, heavy metals,
pesticides, neuropathy, brain trauma, disability, risk assessment, neuroepidemiology, product liability, utilization review, upper/lower extremity, head, neck, back injury, plaintiff, and defense. Degrees/licenses: MD (CA,
NY, MA, NJ), masters in public health, board-certified
neurology, board-certified Occ./Env. medicine, CA QME.
OIL & GAS FACILITIES
RANDALL CONSULTANTS
960 Berry Avenue, Los Altos, CA 94024, (650) 960-1078,
fax (650) 961-4050. Contact Warren O. Carlson. Expert
consultant for pipelines and oil and gas facilities. I am a
graduate professional engineer with more than 40 years’
experience in design, procurement, construction, operations, and maintenance of petroleum facilities. This includes pipelines, pumps, storage tanks, meters, regulators, controls, and instruments.
ORTHOPEDIC SURGEON
RICHARD C. ROSENBERG, MD
18370 Burbank Boulevard, Suite 614, Tarzana, CA
91356, (818) 996-6800, fax (818) 996-2929, e-mail:
[email protected]. Web site: www.drrosenberg.com.
Contact Sheri Roberts. Orthopedic surgery, sports
medicine, and physical therapy. Experienced in IME,
QME, agreed medical exams, med/legal reports, and
expert witness testimony. Personal injury and worker’s
compensation. Additional offices in Oxnard, California,
and Las Vegas, Nevada.
JERROLD M. SHERMAN, MD
1260 15th Street, Suite 614, Santa Monica, CA 90404,
(310) 393-9829, fax (310) 476-8438. Contact Jan Lindsey. Orthopedic surgeon who is board certified as an independent medical examiner and chief executive officer
of Outpatient Surgery Center. Licensed in California and
Nevada.
PATENT
FRANCIS A. UTECHT
200 Oceangate, Suite 1550, Long Beach, CA 90802,
(562) 432-0453, fax (562) 435-6014, e-mail: futecht
@fulpat.com. Patent and trade secret litigation, consulting, and trial testimony.
PEDIATRIC PULMONARY/CRITICAL CARE
ELIEZER NUSSBAUM, MD, FAAP, FCCP, FCCM
2801 Atlantic Avenue, Long Beach, CA 90806, (562)
933-8740, fax (562) 933-8744, e-mail: enussbaum
@memorialcare.org. Dr. Nussbaum is much sought after,
with over 21 years’ experience as an expert witness and
over 150 depositions. Triple board certified. Pediatrics,
pediatric pulmonary, and pediatric critical care. Experienced in pediatric critical care, emergency trauma medicine, hospital care, medical case review, and medical
malpractice. Dr. Nussbaum is professor of pediatrics,
UC Irvine; chief of pediatric pulmonary medicine; medical director of pediatric pulmonary and cystic fibrosis.
Fluent in English and Hebrew.
PERSONAL INJURY
MACINNIS ENGINEERING ASSOCIATES
21076 Bake Parkway, Suite 106, Lake Forest, CA 92630,
(949) 855-4632, fax (949) 855-3340, e-mail: info
@maceng.com. Web site: www.maceng.com. Contact
Davd King, John Brault, and Steve Anderson. MacInnis Engineering Associates has been providing technical
investigation services for motor vehicle collision, personal injury, fire, and material and product failure cases
since 1982. Our staff—which currently includes 24 engineers, biomechanists, and engineers-in-training—conduct, more than 2,000 investigations in these areas each
year for clients throughout North America. MacInnis Engineering Associates has offices in California, Washington, and British Columbia, Canada. See display ad on
page 55.
WOLF
91423, (818) 981-4226, fax (818) 981-4278, and 333 City
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits and earnings,
PLASTICS
PLASTICS ASSOCIATES, INC.
37 Morena, Irvine, CA 92612, (949) 651-0261, fax (949)
651-6460, e-mail: [email protected]. Contact W.
James Sharbaugh. Forensics of plastic product failures;
plastics pioneer, extensive engineering and production
management with plastic corporations: Director of Technology and Development, plastics; consultants to major
international and national corporations; litigation experience. Member: National Forensics Society.
PLUMBING
PLUMBING INSPECTION PIPE EVALUATION
SERVICES (PIPES)
43141 Business Center Parkway, Lancaster, CA 93534,
(661) 949-8811, fax (661) 940-7318. Contact Arnold A.
Rodlo. Specialties include evaluation of plumbing systems and installation in housing, apartment, condominium, and commercial. Expert on uniform plumbing
codes and installation standards. Twenty-five years’ experience, 8,000+ residential units and assorted commercial projects. Active plumbing contractor. Call for CV.
POLYGRAPH
ADVANCED POLYGRAPH SERVICES
1800 Century Park East, Suite 600, Los Angeles, CA
90067, toll free (877) 511-2881. Contact W. Michael
Floyd, MS, JD. Over 8,000 examinations worldwide
since 1975. Former military police lieutenant and special
agent/polygraph examiner with CIA and NSA. Former in-
Jack Irwin, PE
213.996.2571
[email protected]
O’Brien Kreitzberg is now part of URS Corporation, one of the nation’s
largest engineering, consulting, and construction services firms which
also specializes in construction claims and expert services.
Dispute Resolution & Forensic Analysis
Design/Construction Claims
Environmental Claims
Bid/Cost/Damage Analysis
Construction Defect Analysis
Delay/Acceleration/Disruption Analysis
Expert Witness Testimony
Insurance/Bond Claims
Technical Expertise
Architecture
Engineering
Scheduling
Construction Management
Cost Estimating & Auditing
Environmental
Geotechnical
R E A L E S TAT E / R E A L P R O P E R T Y M AT T E R S
Specializations:
Customs & Standards of Practice, Agency Relationships
Material Disclosure in Residential Real Estate Sales
TEMMY WALKER, REALTOR®
Real Estate Consulting Expert Witnessing
SERVICES RENDERED:
Litigation Consulting, Expert Testimony, Broker Practice,
Liability Audit, Educational Services, Industry Mediator
Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist,
California Association of Realtors® Director Since 1981, National Association of
Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education
Association, Past President, San Fernando Valley Board of Realtors
5026 Veloz Avenue, Tarzana, California 91356
Telephone (818) 760-3355, ext. 344 • Pager (818) 318-2594
e-mail: [email protected]
CALIFORNIA BROKER LICENSE NO. 00469980
structor of polygraph and interrogation. Department of
Defense Polygraph Institute Advanced Course and fundamentals of courtroom testimony. Master of science in
detection of deception and law degree. Portable stateof-the-art computerized instrument with videotaping capability. Can administer examinations at your location or
to in-custody clients. Unparalleled education and experience provide the highest degree of professionalism
available in the field.
PROBATE LAW
DARLING, HALL & RAE, LLP
520 South Grand Avenue, 7th Floor, Los Angeles, CA
90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail:
[email protected]. Contact Matthew S. Rae,
Jr. Attorney specialists in estate planning, trust, and probate law. Consultant and expert witness, special and associate counsel, guardian ad litem, referee, special administrator, and independent trustee.
PRODUCT LIABILITY
FORENSISGROUP, INC.
PSYCHIATRY/PSYCHOLOGY
ADDICTION FORENSICS GROUP
11301 West Olympic Boulevard, Suite 323, Los Angeles,
CA 90064, (310) 966-1907, fax (310) 477-0661, e-mail:
.additionforensics.com. Contact Mace Beckson, MD.
Forensic consultation, expert witness, IME for alcohol,
drugs, addictions, sexual compulsions, sex offenses,
sexual harassment, violence, suicide, stalking, threat
assessment, professional sexual misconduct.
BARRINGTON PSYCHIATRIC CENTER
90025, (310) 826-3235, fax (310) 447-0840. Contact
David Gyepes, JD, PhD. Full range of civil litigation
evaluation, sexual harassment, wrongful termination,
personal injury, posttraumatic stress disorders, malpractice, and Americans with (mental) disabilities claims. Litigation consultation regarding case planning, record review, and behind-the-scenes case preparation. Neuropsychological evaluation. Expert witness testimony in
which the right expert is matched to the case.
BIDDLE CONSULTING GROUP, INC.
1321 Howe Avenue, Suite 250, Sacramento, CA 95825,
(916) 563-6219, ext. 113, fax (916) 563-7557, e-mail:
[email protected]. Web site: www.biddle.com. Contact
Dan Biddle, PhD, president. We specialize in test development, EEO/AA reviews, validation studies (content,
criterion-related), and adverse impact analyses. We
have a special emphasis in the protective service fields.
Over 30 staff. Degrees/licenses: MA PhD, other staff with
various degrees.
JOHN DEIRMENJIAN, MD
Clinical instructor, UCLA School of Medicine. 4510 East
Pacific Coast Highway, Suite 120, Long Beach, CA
90804, (562) 961-0155, fax (562) 961-0161, e-mail:
[email protected]. Expert witness testimony: civil
and criminal, insurance evaluations (disability, malpractice, hospital review, workers’ compensation, record review, psychiatric damages, fitness for duty, wrongful ter72 LOS ANGELES LAWYER / NOVEMBER 2002
mination). Criminal expertise includes competency to
stand trial, sanity evaluation, restoration of sanity, stalking, Internet crimes, malingering, sex offender evaluations, diminished capacity, and violence risk assessment. Expert in geriatric conservatorship and testamentary capacity. Expert in divorce and child custody evaluations.
ARNOLD L. GILBERG, MD, PhD
Associate Clinical Professor of Psychiatry, UCLA School
of Medicine, a professional corporation, 9915 Santa
Monica Boulevard, Suite 101, Beverly Hills, CA 90212,
(310) 274-2304, fax (310) 203-0783. Contact Arnold L.
Gilberg. Board certified and appointed by three governors to Medical Board of California 11th District MQRC
1982-1991. Certified in psychiatry and psychoanalysis.
All labor law, including workers’ compensation, sexual
harassment, wrongful termination—jury selection, personal injury, casualty, and transactional. All civil matters,
experienced as expert witness. Degrees/licenses: medical doctor, PhD. Licensed in California and Hawaii. See
BRIAN P. JACKS, MD
Clinical Professor of Psychiatry, USC, 462 North Linden,
Suite 441, Beverly Hills, CA 90212, (310) 274-0684, fax
(310) 274-5049. Contact Andrea Wilens, office manager. Specialties: 25+ years’ experience with adults,
teenagers, and children. Workers’ compensation (QME,
AME), personal injury, sexual harassment, posttraumatic
stress, child custody, traumatic brain injury, medical
malpractice, psychopharmacology, and malingering.
Treatment: individual, marital, and family. Board certified: adults (1974), child-adolescent (1976). Trial experience. Degrees/license: MD, physician/psychiatrist,
FAACP.
RONALD H. ONKIN, MD
18370 Burbank Boulevard, Suite 503, Tarzana, CA
91356, (818) 783-6677, fax (818) 344-6930. Board-certified psychiatrist. QME specialties include evaluations
and testimony in criminal, medical malpractice, personal
injury, and workers’ compensation. Specializes in
preparing attorneys and witnesses for depositions and
court appearances. Excellent psychopharmacology
evaluations, and individual and family psychotherapy,
PTSD, sexual harassment, immigration, and alcohol and
chemical dependence.
MARTIN H. WILLIAMS. PhD
P.O. Box 760, Redwood Estates, CA 95044, (888) 2259957, fax (888) 225-9957, e-mail: [email protected].
Web site: www.drmwilliams.com. Contact Martin H.
Williams, PhD. Experienced psychologist in full-time
clinical practice provides testimony regarding emotional
damages, psychotherapy malpractice and sexual harassment. Objective evaluation of conditions such as
malingering, borderline personality disorder, and PTSD
using psychological testing. Consultation regarding sexual harassment in the workplace and claims of inappropriate sexual contact between therapist and patient.
Many publications in peer reviewed journals. Santa Monica office. Defense and plaintiff.
KATHLEEN M. ZECHMEISTER, PhD
3020 Old Ranch Parkway, Suite 300, Seal Beach, CA
90740-2752, (562) 493-2155, fax (562) 431-6637. Web
site: www.competitiveminddoctor.com. Contact Kathleen M. Zechmeister, PhD. Expert profile: areas of expertise include psychological effects of athletic accidents/injuries and post traumatic stress disorder associated with injuries. Dr. Zechmeister has been in private
practice since 1986, has consulted on approximately 50
legal cases and is experienced with deposition and
courtroom testimony. She has a PhD in clinical psychology and is a diplomate of the American College of
Forensic Examiners. Areas of expertise: clinical psychology, posttraumatic stress disorder, sports injury psychology, and sports psychology.
QUESTIONED DOCUMENTS
RILE & HICKS, FORENSIC DOCUMENT
EXAMINERS
Howard C. Riles, Jr. and A. Frank Hicks, 100 Oceangate, Suite 670, Long Beach, CA 90802-4312, (562)
901-3376, fax (562) 901-3378. Web site: www
.asqde.org/rile or /hicks.htm. Diplomates, American
Board of Forensic Document Examiners. Members,
ASQDE, SWAFDE, SAFDE; Fellow AAFS. Combined 55+
years’ experience in examination and evaluation of disputed documents, including handwriting and signatures
(wills, deeds, checks, etc.) medical records, business
records, typewriting, printing, and/or other business machine processes, alterations, indentations, obliterations,
and ink and paper questions. Fully equipped darkroom
and laboratory, including VSC-4C and ESDA. Testified
more than 500 times. See display ad on page 71.
RADIOLOGY
DANIEL POWERS, MD, INC.
90048, (800) 222-6768, (323) 933-5100, fax (323) 9334966, e-mail: [email protected]. Web addresses: www.themripeople.com, www.msus.com,
www.breader.com. Contact Daniel Powers, MD.
Provider of primary diagnostic imaging services such as
MRI/CT scans in adversarial disputes as well as second
opinions and expert testimony. Take both plaintiff and
defense referrals on merit. State-of-the-art technology
available throughout California. Liens accepted. Will review malpractice cases. Licensed physician in 49 states
plus District of Columbia. Degrees/licenses: Board Certified Diagnostic and Nuclear Radiologist; B reader. See
REAL ESTATE
263-8700, fax (949) 263-0770, e-mail: info
.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, and real estate
procedures in all types of lending (real estate, business
/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments,
economic analysis and valuations/damages assessment, real estate brokerage, appraisal, escrow, construction defects/disputes, and title insurance.
ROBERT MILLER & ASSOCIATES
PROPERTY MANAGEMENT
330 Primrose Road, Suite 606, Burlingame, CA 94010,
(650) 373-0705, fax (650) 373-0709. Contact E. Robert
Miller, CPM, CIPS, ACD, CMC, president. Expert in
property management issues: commercial and residential. Experience in arbitration, litigation lease terms,
personal injury, property damage, security, standards of
care, and due diligence. Degrees/license: BS, CPM,
CIPS, ACD, CMC broker.
STEPHEN B. FAINSBERT, ESQ., FAINSBERT
MASE & SNYDER, LLP
11835 West Olympic Boulevard, Suite 1100, Los Angeles, CA 90064, (310) 473-6400, fax (310) 473-8702, email: [email protected]. Contact Stephen B.
Fainsbert. Expert testimony in real property exchanges
(coauthor CEB publication Real Property Exchanges,
2nd ed.), real estate transactions, standard of care and
practice for real estate brokers, escrow, and real estate
attorneys, disclosures in purchase and sale agreements, real estate financing, and secured real property
transactions.
SAMUEL K. FRESHMAN, BA, JD
CA 90045, (310) 410-2300, fax (310) 410-2919. Contact
Samuel K. Freshman. Attorney and real estate broker
since 1956, banker, professor legal malpractice, arbitration, brokerage malpractice, leases, syndication, construction, property management, finance, due diligence,
conflict of interest, title insurance, banking, escrow, and
development. Expert witness 20-plus years in state and
federal courts. Twenty-one published articles, arbitrator
and mediator, general partner $300,000 plus, shopping
centers, apartment, and industrial property. JD Stanford
(1956). See display ad on page 69.
90017, (213) 787-4111, fax (213) 787-4144, e-mail: dnolte
page 45.
ident. Hotel and real estate industry business issues, including market, economic and financial feasibility, valuation, and disputes between owner-operator, borrowerlender, and franchisor-franchisee. Fluent in management
contracts, license agreements, ground and building
leases, partnership and JV agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise property values under
multiple scenarios. Expert witness testimony, litigation
strategy, consultation and support, damage calculations,
lost profits analysis, real estate appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and
economic, financial, and investment analysis.
TEMMY WALKER, INC.
5026 Veloz Avenue, Tarzana, CA 91356, (818) 7603355, fax (818) 716-7051, e-mail: [email protected].
Contact Temmy Walker. Specializes in expert witness
testimony and litigation consultant in matters regarding
residential real estate, with emphasis on the customs
and practice, standards of care, disclosure requirements, agency relationships, and broker supervision.
Complete assistance. Extensive transaction and court
experience. Director California Association of Realtors,
director of National Association of Realtors, master faculty instructor for continuing legal education C.A.R. Excellent credentials. See display ad on page 71.
RECONSTRUCTIVE SURGERY
KARL N. STEIN, MD
25458 Via Acorde, Valencia, CA 91355, (661) 255-5451.
Specialties: burn specialist, Sherman Oaks Hospital and
Burn Center, American Burn Association. Also plastic
RECEIVER, FEDERAL AND STATE COURT
SALTZBURG, RAY & BERGMAN, LLP
C O N S U LTA N T | E X P E R T W I T N E S S
NATIONAL PROPERTIES GROUP
1225 West 190th Street, Suite 205, Gardena, CA 90248,
(310) 516-0022, fax (310) 516-8555. Contact Jack
Karp. Industrial and commercial broker’s care and duties, professional obligations to clients. Mediation and
arbitration between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site location analysis. Real estate leases and
purchase contracts and their interpretations. Author AIR
Net and Gross Leases and AIR Standard Offer and
Agreement and Escrow Instruction for Purchase of Real
Estate. See display ad on page 46.
90071, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site: www.schulzehaynes
.com. Contact Karl J Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, corporate recovery, expert testimony, discovery assistance, business and real estate valuations, construction claims, real
estate transactions, financial analysis and modeling,
major professional organizations and have experience
across a broad spectrum of industries and business issues. Degrees/licenses: CPA, CVA, CFE, CMA, Certified
Appraiser, PE, RE Broker.
90025, (310) 481-6700, fax (310) 481-6720. Contact
David L. Ray. Specializes in handling complex receivership matters, such as partnership and corporate dissolutions, including law firm dissolutions, and government
enforcement receivership actions, such as actions
brought by the California Department of Corporations,
Department of Real Estate, Commodities Future Trading
Commission, and Federal Trade Commission. Nationally
recognized in both the lender and litigation communities
as qualified to assist in complicated and commercially
sophisticated liquidations, reorganizations, and ongoing
business operations.
Vern J. Grady
& Associates
CERTIFIED PUBLIC ACCOUNTANT
◆
Litigation consulting
◆
Expert witness testimony
◆
Business valuation
◆
Marital dissolution
◆
Forensic accounting
◆
Damage analysis
◆
Lost profits/earnings
◆
Real estate/construction
◆
Technology
◆
Intellectual property
◆
Business interruption or closing
◆
Financial and economic damages
◆
Contract disputes
◆
Personal injury or wrongful death
◆
Shareholder/partner disputes
◆
Government contractors
CERTIFIED VALUATION ANALYST
OVER 25 YEARS EXPERIENCE
EDUCATION: BS BUSINESS ADMINISTRATION, MAGNA CUM LAUDE, USC
MBA USC IN PROCESS MEMBER: PHI BETA KAPPA, USC
CERTIFICATE IN BUSINESS UCLA
ANNUAL BUSINESS VALUATION & LITIGATION CONSULTING SEMINARS
MEMBER OF:
AICPA CONSULTING DIVISION, LITIGATION SUPPORT AND BUSINESS VALUATION
CA CPA SECTIONS: BUSINESS VALUATION, FAMILY LAW, ECONOMIC DAMAGES
NATIONAL ASSOCIATION OF CVA (NACVA)
INSTITUTE OF BUSINESS APPRAISERS (IBA)
REAL ESTATE APPRAISAL
MAURICE ROBINSON & ASSOCIATES LLC
4720 Lincoln Boulevard, Suite 300, Marina Del Rey, CA
90292, (310) 578-0470, fax (310) 578-6552, e-mail:
[email protected]. Web site: www.jurispro.com/mem
/mauricerobinson. Contact R. Maurice Robinson, pres-
246 BICKNELL AVENUE, SUITE 3, SANTA MONICA, CA 90405-2335
Tel: (310)
450-3716 |
Fax: (310) 450-1767
E-mail: [email protected]
and reconstructive surgery specialist, 20 plus years’ experience as surgeon and expert witness, including court
appearances.
RETALIATION
HAIGHT CONSULTING
(310) 454-2988, (310) 454-4516. Contact Marcia
ROOFING AND WATERPROOFING
BALL CM, INC.
page 51.
VAN DIJK & ASSOCIATES, INC.
28 Hammond, Suite G, Irvine, CA 92618, (949) 5863828, fax (949) 586-7429, e-mail: nils@vdaconsulting
.com. Web site: www.vdaconsulting.com. Contact Nils
Van Dijk. Experienced staff of consultants specializing
in forensic/expert witness litigation services, plan/document review, specification preparation, and quality control/management services.
SCHOOL SAFETY CONSULTANT
KORMAN DORSEY ELLIS, JD
Safe school environment since 1968. 567 W. Channel
Islands Blvd. #137, Port Hueneme, CA 93041, (805) 9840088, fax (805) 984-0088, e-mail: [email protected].
Web site: www.goschoolsafety.com. Expert witness:
plaintiff/defendant.
SECURITY
CONFIDENTIAL BUSINESS CONSULTANTS, LLC
2275 Huntington Drive, Suite 309, San Marino, CA
91108, (626) 419-0082, fax (626) 799-7960, e-mail: [email protected]. Contact James F. Broder, CFE,
CPP, FACFE. Risk analysis and security surveys,
premise liability, adequate vs. inadequate security procedures and practices, expert case analysis and testimony, corporate procedures, training and operations,
kidnap, ransom, extortion, and workplace violence issues. Thirty-five years of law enforcement and security
experience, domestic and international. Listed in the
Encyclopedia of Security Management as “One of the
most highly recognized security authorities in the US.”
Degrees/license: CA D/L 3773941, CA PI Lic.
0021073.
SEXUAL HARASSMENT/DISCRIMINATION
HAIGHT CONSULTING
(310) 454-2988, (310) 454-4516. Contact Marcia
statistics, negligent hiring, promotion selections,
CFRA/FMLA, compensation, wage and hours, ERISA,
workplace violence, and OSHA. Consultant to over 100
organizations. Over 500 publications. Five-time winner of
SURVEYS AND OPINION RESEARCH
COGAN RESEARCH GROUP
90503, (310) 316-4289, fax (310) 316-4939, e-mail:
[email protected]. Contact Sandra R
Cogan. Specialties: conducts surveys and acts as expert witness on surveys. Survey types: trademark (likelihood of confusion, secondary meaning, genericness,
dilution), design patent infringement, misleading advertising, defamation of character, right of publicity, and
copyright infringement. Phone or fax for information.
TAXATION
KAJAN MATHER & BARISH
9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA
90212, (310) 278-6080, fax (310) 278-4805, e-mail:
[email protected]. Web site: www.taxdisputes.com.
Contact Elliott H. Kajan. The firm’s practice is devoted
to representation of taxpayers before the Internal Revenue Service, Franchise Tax Board, State Board of
Equalization, and California Employment Development
Department, involving tax audits, administration appeals
proceedings, tax collection matters, complex tax litigation, and criminal tax investigations and trials. The firm
also represents and advises accountants regarding tax
penalties and professional responsibility matters.
TOXICOLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
Neurology, Electromyography, Clinical Neurotoxicology,
Occupational and Environmental Medicine. 1145 Bush
Street, #101, San Francisco, CA 94109, (415) 771-3133,
cell (415) 606-1465, fax: (415) 922-6344, e-mail: jsrutch
@neoma.com. Web site: www.neoma.com. Contact
Jonathan S. Rutchik, MD, MPH. Clinical evaluations
and treatment, including electromyography of individuals and populations with suspected neurological illness
secondary to workplace injuries or chemical exposure.
Other services include independent medical examinations, medical record review, utilization review and consulting to industrial, legal, government, pharmaceutical
and academic institutions. Specialties include neurology, occupational/environmental medicine, neurotoxicology, electromyography, organic solvents, heavy metals,
pesticides, neuropathy, brain trauma, disability, risk assessment, neuroepidemiology, product liability, utilization review, upper/lower extremity, head, neck, back injury, plaintiff, and defense. Degrees/licenses: MD (CA,
NY, MA, NJ), masters in public health, board-certified
neurology, board-certified Occ./Env. medicine, CA QME.
TRUCK SAFETY
WESTERN MOTOR CARRIER SAFETY
INSTITUTE
954 Butterfly Valley Road, Quincy, CA 95971, (530)
281-6565, fax (530) 281-6566, e-mail: paulherbert
@trucksafetyexpert.com. Web site: www.trucksafetyexpert
.com. Contact V. Paul Herbert, CPSA. Paul Herbert has
driven most every type of commercial vehicle combination and hauled nearly all types of loads. As a trooper
with the Nevada Highway Patrol he received specialized
training and assignments in the areas of commercial vehicle accident investigation and enforcement. Since
1986 he has been employed in trucking management
positions and has been serving as a testifying expert
witness in litigated truck, bus, and forklift cases.
VISION
VISUAL FORENSICS
3D computer simulations for all aspects of accident reconstruction, vision related malpractice, criminal reenactment, and more. Vision perception, site visibility, and
human factors analysis. Opposing demonstrative evidence analysis. In-house scientific and engineering experts. Led by internationally recognized vision scientist,
Dr. Arthur P. Ginsburg, who has over 12 years of experience as a vision and visibility expert consultant for the
legal industry and government agencies. Plaintiff and
defense. Seen on CBS’s 60 Minutes and Court TV.
www.visualforensics.com. (800) 426-6872, 130 Ryan
Industrial Court, Suite 105, San Ramon, CA 94583. See
VOCATIONAL REHAB
SUSAN GREEN & ASSOCIATES
90025, (310) 207-8301, fax (310) 207-8391, e-mail:
[email protected]. Web site: www.vocrehab
.net/susangreen. Contact Susan Green. Specialties:
20+ years’ experience in workers’ comp/vocational
rehabilitation counseling. Social Security administration
vocational expert. Experience witness testimony regarding vocational assessment, American with Disabilities
Act, employability and wage earning capacity in divorce,
employment law, and P.I. cases. Pager: (800) 200-7144.
Degrees/license: MS, CRC, CPDM, ABVE.
computer
counselor
By Carole Levitt and Mark Rosch
Protecting Your Privacy on the
Internet
Use of the Internet
sion of Anonymizer displayed at
the top of each site visited. A oneyear subscription without the
advertisement and with additional
security features is available for
$29.95. The Cloak (at http:
//www.the-cloak.com) and Go
Proxy (www.goproxy.com) offer
similar services to users who are
concerned with their privacy.
M
Hidden Spyware
In order to access the
Inter net, ever y computer is
means exchanging
assigned a unique Inter net
Protocol (IP) address. When
data between your
accessing the Internet from home
(or from a firm that does not have
computer and
a network), the IP address is
assigned by an Internet Service
other computers
Provider (ISP), such as AOL or
Earthlink. In a networked corporate setting, each computer’s IP
any Inter net users— address is assigned by the IT
even relatively sophisti- manager. Every request by the
cated ones—tend to user’s browser to a Web site
think that surfing the Web is like being visited leaves a record of
surfing the channels on the tele- the IP address on that site’s Web
vision, but there is a significant server. While IP addresses from
difference. When people watch commercial ISPs are not assigned
television, their particular viewing permanently to the user (as they
habits are not recorded without typically are on a corporate nettheir knowledge. When they surf work) and do not show your ethe Internet, their surfing habits mail address or your name, an
can be and probably are. Often ISP can match (by reviewing logwithout fully realizing it, Inter- in records) a specific IP address
net users are exchanging a range that it assigned at a specific time
of information with the sites they to a specific user.
This lack of privacy undervisit and leaving an easy-to-follow trail of informational crumbs. standably concerns many comInformation that identifies puter users. As a result, a number
individual Internet users, their of services exist to cloak a user’s
surfing habits, and even their Internet activity. By using a serpasswords can be gleaned from a vice such as Anonymizer (www
.anonymizer.com),
variety of sources,
Carole Levitt and
users can anonyincluding the reMark Rosch are
mously access any
cords of Web sites
principals of Internet
Web site and leave
they have visited
For Lawyers. They
behind the IP adthat are stored on
can be reached at
dress of the server
their own computclevitt@netforlawyers
of the Anonymizer
ers and the infor.com.
company rather
mation they leave
than their own. To
behind at the Web
use Anonymizer’s
sites they visit. This
information may be recorded by free cloaking service, users type
those Web sites they visit, by the Web address of the site they
third parties that are accessing wish to visit into the address box
their machines from remote loca- on the Anonymizer.com home
tions, or simply by sitting down at page. The only downside to this
their computers when they are free ser vice is enduring the
advertisement for the pay vernot present.
In 1999, the FBI loaded “key
logger” software onto the computer of reputed organized crime
figure Nicodemo Scar fo Jr.,
recording every keystroke made
on his computer. This allowed
the FBI to capture some of Scarfo’s passwords, which in turn
allowed them to decipher information from the encryption software he was using. In that case,
the judge ruled that such key logging did not constitute an illegal
wiretap. (Visit http://lawlibrary
.rutgers.edu/fed/html/cr00-404
-1.html for more information.).
Similar software, which “hides”
on a hard drive once it is installed,
can be purchased for $50 to $200.
Originally designed to monitor
the Internet activity of children
and allow government and corporations to track the computer
use of employees, key-logging
software is increasingly being
used by spouses. Computer users
should know, therefore, that a
parent, spouse, or employer with
access to their computers (and
that may include remote access)
can install software that tracks
and repor ts their ever y keystroke. Spector Soft (one manufacturer of spy software) has
placed a warning in its software’s
license agreement that “requires
that you inform anyone you may
monitor with Spector Soft products.” Users who fear for their
privacy may not conclude that
this clause entirely relieves their
worries, however.
Spector Soft is not the only
vendor of computer spyware.
Desktop Sur veillance (www
.datarecoverysoftware.com) and
Investigator(winwhatwhere.com)
also record browser activity and
track ever y program opened,
every file saved, and every keystroke (including passwords).
One application, Eblaster (found
at http://www.spectorsoft.com
/purchase/eblaster.htm), even
sends a screen shot, via e-mail,
whenever the user being tracked
uses the computer on which it is
installed.
Electronic Footprints
Even without hidden spyware,
an ordinar y computer offers a
wealth of data to those who know
where to look. Microsoft’s
Internet Explorer and Netscape’s
Communicator keep a record of
Web sites that the user has
recently visited. The History file,
which is stored on the computer’s
hard drive, conveniently allows
users to look back at a list of
recently visited sites without having to bookmark or remember a
site’s Web address. The History
file is not password protected;
therefore, someone who leaves
a computer turned on but unattended makes this information
available to anyone else who
accesses the computer.
The History file can also yield
important forensic evidence. For
example, Washington, D.C.,
police reviewed the History file
on Chandra Levy’s computer
when searching for clues that her
Statement of Ownership, Management
and Circulation
UNITED STATES POSTAL SERVICE
(Required by 39 USC 3685)
1.
2.
3.
4.
Publication Title: Los Angeles Lawyer
Publication Number: 01622900
Filing Date: October 1, 2002
Issue Frequency: Monthly (Except combined July/
August)
5. Number of Issues Published Annually: 11
6. Annual Subscription Price: $14.00 member; $28.00
nonmember
7. Complete Mailing Address of Known Office of
Publication: Los Angeles Lawyer, 261 S. Figueroa
Street, Suite 300, Los Angeles, CA 90012-2503
8. Complete Mailing Address of Headquarters or
General Business Office of Publisher: Los
Angeles Lawyer, 261 S. Figueroa Street, Suite 300,
Los Angeles, CA 90012-2503
9. Full Names and Complete Mailing Addresses of
Publisher, Editor, and Managing Editor. Publisher:
Samuel L. Lipsman, Los Angeles Lawyer, 261 S.
Figueroa Street, Suite 300, Los Angeles, CA 900122503. Editor: Samuel L. Lipsman, Los Angeles Lawyer,
261 S. Figueroa Street, Suite 300, Los Angeles, CA
90012-2503. Managing Editor: Samuel L. Lipsman,
Los Angeles Lawyer, 261 S. Figueroa Street, Suite
300, Los Angeles, CA 90012-2503. Contact Person:
Samuel L. Lipsman. Telephone: (213) 896-6503
10. Owner: Los Angeles County Bar Association, 261 S.
Figueroa Street, Suite 300, Los Angeles, CA 900122503
11. Known Bondholders, Mortgagees, and Other Security
Holders Ownlng or Holding 1 Percent or More of Total
Amount of Bonds, Mortgages, or Other Securities.
None
12. Tax Status. The purpose, function, and nonprofit
status of this organization and the exempt status for
federal income tax purposes: Has Not Changed During
Preceding 12 Months.
13. Publication Name: Los Angeles Lawyer.
14. Issue Date for Circulation Data Below: Sept. 2002
15. Extent and nature of circulation: (Column 1: Average
No. Copies Each Issue During Preceding 12 Months.
Column 2: No. of Single Issue Published Nearest to
Filing Date.)
Column 1 Column 2
a. Total Number of Copies
(Net Press Run)
21,350
22,116
b. Paid and/or Requested
Circulation
(1) Paid/Requsted OutsideCounty Mail Subscriptions
20,460
20,743
Stated on Form 3541
(2) Paid In-County Subscriptions
0
Stated on Form 3541
0
(3) Sales Through Dealers,
Carriers, Street Vendors,
Counter Sales, and Other
Non-USPS Paid Distribution
0
0
(4) Other Classes Mailed
Through the USPS
138
135
c. Total Paid and/or Requested
Circulation
20,595
20,881
190
202
d. Free Distribution by Mail
e. Free Distribution Outside
0
0
the Mail
190
202
f. Total Free Distribution
20,785
21,083
g. Total Distribution
565
1,033
h. Copies Not Distributed
21,350
22,116
i. Total
j. Percent Paid and/or
99%
Requested Circulation
99%
16. This Statement of Ownership will be printed in the
November 2002 issue of this publication.
17. Signature and Title of Editor, Publisher, Business
Manager, or Owner: Samuel L. Lipsman, Publisher
and Editor. Date: 10/1/02. I certify that all information
furnished on this form is true and complete. I understand that anyone who furnishes false or misleading
information on this form or who omits material or
information requested on the form may be subject to
criminal sanctions (including fines and imprisonment)
and/or civil sanctions (including multiple damages and
civil penalties).
Web use may have inadvertently left behind.
They discovered the Web request for a map
to the park in which her remains were eventually found. Internet Explorer’s History can
be viewed by clicking the History tab on the
Navigational tool bar. Netscape Communicator’s History can be viewed by clicking on Communicator on the Menu Bar,
scrolling down to Tools and then selecting
History.
Many Web sites also employ cookies as a
means to identify visitors. A cookie is a small
piece of information that the site being visited
places on the visiting user’s local hard drive.
Ostensibly, cookies are intended to function
as a means to expedite a user’s return visits
to favorite sites or personalize the information
received from a site. For example, many users
are familiar with how Amazon.com uses a
cookie to identify returning visitors by name
and to recommend products for purchase
based on their prior buying histor y with
Amazon.
Most cookies include the address of the
site that placed them on the user’s computer.
These addresses, in turn, may be accessed by
other Web sites to track the user’s general
Web usage, identifying sites the user has visited and perhaps even the user’s passwords
for those sites. Cookies can also be accessed
and deciphered by someone who sits at your
computer and knows where to find the cookie
file. Newer versions of Communicator and
Explorer can be configured to warn users
before cookies are added to their computers. This gives users the option of deciding
whether or not to allow cookies to be placed
on their computers. Users who enable this
option may be surprised how many sites
employ cookies, and how some sites employ
multiple cookies.
Cookies are not only placed on users’ computers by Web sites that users visit but also
by third-party advertisers featured on those
Web sites. One can opt out of receiving thirdparty cookies from two of the largest online
advertising clearinghouses by visiting Network Advertising Initiative (NAI, which is
found at http://networkadver tising.org
/optout_nonppii.asp).
Data Collection
This summer, the largest of these advertising clearinghouses, Double Click, settled
a two-year investigation with the attorneys
general of 10 states regarding the way Double
Click collected and used identifying information about Web users. (See the agreement
at www.oag.state.ny.us/press/2002/aug
/aug26a_02_attach.pdf.) As part of the settlement, Double Click promised not to combine information it gathers (from cookies
generated by various ads) to create de facto
master profiles for individual Web users.
Double Click is also developing a means by
which Web users will be able to view the
information about themselves that Double
Click has compiled.
The most reliable and effective way of
gathering personal data, however, remains
simply to ask for it. Many Web sites offer
free content or prizes in return for registration. Just as the amount of information
requested of a user varies from site to site, so
too do the intentions of the sites gathering this
information. Before entering personal information into a Web site, be sure to read the
site’s privacy policy. If the site does not have
a link to its privacy policy prominently displayed near a form requesting information,
one should be wary of supplying any information.
There are a number of other practices
you can employ to protect your privacy:
• To discover if someone has placed key-logging software on your computer, programs
such as Hook Protect (visit downloads-zdnet
.com.com/3000-2092-10025791.html), Spy
Guard (www.spyguard.com), and Spy Cop
(www.spycop.com) claim to be able to detect
and eliminate hidden key loggers.
• Periodically, clear your history files so no
one can view your surfing history.
• Use the Cookie Manager in your browser
to clean out unnecessary cookies already on
your computer and to warn you when cookies are being placed on your hard drive.
• Also, set the Cookie Manager to reject
third-party cookies.
• Install a firewall to protect against hackers.
• Shut down your computer when you are
not using it so no one can view your history
or cookies.
• Install a password to open your computer,
so no one will be able to access your computer
after it has been shut down.
• Use the free Anonymizer. If you download
the pay software, your name is registered
and you may be tracked if a court order is
issued.
• Before entering any sensitive data (e.g., a
Social Security or credit card number) into an
interactive Web form, be sure you are in a
secure and trustworthy site: Check that the
address begins with “https” rather than “http”
and a small locked padlock icon appears in the
lower left corner of the browser’s window.
As a final precaution, computer users may
simply keep in mind that computers are
designed to store, copy, and share information
with great speed and efficiency. These capabilities may always be exploited in ways that
will dismay a particular user. Users may take
significant steps to protect their privacy online,
but the best advice may be: If you want to
keep it a secret, don’t do it on the Web. ■
by
the
book
Reviewed by Angela J. Davis
A Trial by Jury
An Ivy League
The police followed a standard procedure when investigatscholar provides an ing a stabbing death. They canvassed New York-area hospitals
for patients admitted with cuts
uncompromising
on their hands or arms, anticipating that the perpetrator would
look at the inside
have at least once slipped and
stabbed himself. Monte Milcray
of a jury room
had been admitted to St.
Vincent’s Hospital in the West
Village around 2:00 A.M. on the
A Trial by Jur y
by D. Graham Burnett
same day, his right pinky almost
Knopf, 2001
completely severed, his clothing
$21, 192 pages
and personal effects covered with
blood. Milcray first told investin August 2, 1998, two law gators that he was attacked by a
enforcement officers took posse of “five white males.” His
turns kicking in the door story was suspicious. Later, after
to a low-rent apar tment near investigators—unexpectedly and
Manhattan’s Christopher Street. somewhat amazingly—sucWhen at last they succeeded, the ceeded in finding Milcray’s disdoor stopped against a low coffee carded clothes in a trash contable to reveal a blood-splattered tainer, forensic analysis found the
futon couch and the lifeless body blood splatters to be a mixture
of a young African American of the victim’s and Milcray’s own.
When Milcray emerged from
male. The body was naked. Rigor
mortis preser ved the victim’s the surgery that reconnected his
final gesture: his right arm reach- finger, police invited him to make
ing to a street-level window in a a statement. Tired and in pain,
desperate effort to pull himself up Milcray at last told police the
and call for help. The officers did story that, with only a few varinot check for vital signs. More ations, he would stick with
through his resultthan twenty stab
Angela J. Davis is a
ing criminal prosewounds persuaded
member of the Los
cution. According
them of what a
Angeles Lawyer
to Milcray, he was
medical examiner
Editorial Board.
taking a break
would later confrom work when a
fir m: Randolph
long-haired black
Cuffee, “Antigua,”
woman came up to
a sometime crosshim on the street,
dresser and habitué of the Watutsi Lounge and told him he was sexy, and asked
other gay bars of the West Vil- if he modeled. The woman introlage, was dead. Also revealed duced herself as “Veronique” and
when the body was moved: two invited Milcray to her West
braided leather whips and two Village apartment around midunrolled condoms, one inside the night when he got off work. At
11:55 that night, Milcray punched
other.
O
out of work and, according to his
statement, made his way across
town to a neighborhood that he
did not know well.
Veronique, wearing a short
robe, greeted him at the door.
The only light in the room came
from a television
that she had turned
to an erotic channel. Milcray reclined and undressed. Moments
later, Veronique
opened her robe
and revealed she
was a he. Milcray
scrambled for his
clothes, whereupon
Veronique pushed
him to the floor and attempted
to rape him. Milcray, by this time,
had managed to partially pull up
his overalls. Veronique continued
to bear down on him, face-to-face,
repeating, “Once it gets in, it
doesn’t hur t.” At this point,
Milcray reached for his knife,
and, he asserted, stabbed Veronique once in the chest. When
she did not relent but bore down
more forcefully, Milcray reached
around Veronique’s back in order
to “hit him a few more times,”
eventually slipping out of the
weakening grasp and escaping
to the street, where he discovered his own injury.
After Milcray communicated
his Crying Game story to detectives, they arranged for him to
write it down and then arranged
for an assistant DA to videotape
the statement. By the end of the
tape, Milcray is seen holding his
bandaged right arm, asking,
“What’s going to happen next?”
and, “Can I go home tonight?”
A year and one-half later, a jury
was impaneled to determine
Milcray’s fate. Enter D. Graham
Burnett—historian of science, fellow at the Center for Scholars
and Writers at the New York
Public Library, former lecturer
at Yale and Columbia, longtime
admirer of Wallace
Stevens—and recent recipient of
a New York jur y
summons. With his
Ivy League credentials, legal-scholar
wife who had worked for the public
defender’s office,
and a copy of the
New York Review of
Books in plain view,
Burnett expected to be excused:
“I promised to give any healthy
prosecutor hives.” When, during
voir dire, the judge informed the
members of the venire that they
would be expected to follow and
apply the law, “whether you
agree with it or not, whether you
think it is a good law or a bad
one,” and then inquired if any
potential juror had “a problem
with that,” Burnett volunteered
that if he thought the defendant
might face the death penalty, “I
would be inclined to acquit, even
if I thought him guilty.” The
judge responded that the death
penalty was not relevant to the
case at bar and expressed no
further interest in Burnett’s comment.
Despite his expectation—one
that many trial lawyers might
have shared—Burnett was not
excused. Instead, he became the
jury’s foreperson and later wrote
about his experience in a New
York Times Magazine article and
in the memoir, A Trial by Jury.
The 11 other citizens selected along with
Burnett included 2 ad-copy writers, a software developer, a vacuum cleaner repairman,
an interior decorator, a self-described “independent marketing executive,” a part-time
security guard, an actress/bartender, 2 others of “less clear occupation,” and, improbably enough, another professor of the history
of science.
They acquitted. We learn this in the book’s
opening chapter, when Burnett describes the
12 index cards, each scrawled with the words
“not guilty” that allowed Milcray to walk out
the courthouse in February 2000. Burnett
left the courthouse only a few minutes before
Milcray. He had kept the index cards folded
in the breast pocket of his blazer. And, he
tells us, he was crying.
It is impossible to say, based solely upon
the memoirs of one juror, whether or not the
jury reached the right decision, but Burnett’s
own account contains many suggestions that
it did not. Aside from his own weeping upon
exiting the courthouse, there are the candid
descriptions of how (for Burnett and his fellow jurors) sequestration bred hostility toward
“the system,” how the jurors openly discussed
jury nullification (“we can ignore the law”),
and how in the end there was a funereal
shared sadness (“we had let him go”).
Burnett’s personal account of how he and
his fellow jurors came to this point is beautifully written and frequently mesmerizing. He
writes with the economy and grace of a serious admirer of poetry and brings the lapidary precision of the scientific historian to
many of the more subtle evidentiary questions
raised by The People v. Monte Milcray. Although A Trial by Jury is a compact 180 pages,
one has the feeling that nothing has been
omitted. Witnesses—including more than
one drag queen who testified for the prosecution that the victim and the defendant were,
contrary to the Crying Game defense, seen
together previously—come to life in Burnett’s
filmlike retelling of their testimony. When
one of them was cross-examined about the
presence of whips in the victim’s apartment,
she (as the witness preferred to be called)
replied, “Honey, we all have whips.” Burnett’s
description of the jury’s deliberations and
the experience of sequestration (“the most
intense sixty-six hours of my life”) are likewise
informed by an uncommon sensitivity and
psychological insight.
And yet…for all of Burnett’s talent and
grace, for all of the sharpening of his critical
faculties at the grindstone of academia, there
is an unmistakable—and unignorable—elitism that pervades his observations. At times
the snobbery is obvious and harmless, as in
his descriptions of his fellow jurors. He dubs
one of them—the vacuum cleaner repairman,
who also “moonlights in car stereo installation” and sports a rodeo tattoo—the Faludiman after feminist author Susan Faludi’s
tragic tale of the white working-class male:
“big chest, big gut, big debt.” There are other
moment’s when Burnett’s elitism is far more
alarming. Perhaps the most disturbing
moments in the jury deliberations came when
Burnett arrogated to himself a secret agenda
to engineer a hung jury. He entrusted his
frustrations to a private journal and, to his
credit, reproduces a particularly unflattering
passage: “There are some jurors here who are
such idiots, so thoroughly oblivious to good
judgment or so thick (regardless of their
intentions) that it seems improper to aid them
in depriving a man of his liberty.”
In the end, though, Burnett retreated from
his secret agenda and lost at least some of his
prejudices along with it. Indeed, it is the
Faludiman himself who articulated the most
breathtaking epiphany in the jury room, shattering stereotypes with a “vow of faithfulness;
a repudiation of sophistication that suddenly
seemed overwhelmingly sage.” Whether or
not justice was ultimately done in The People
v. Milcray, Burnett’s account is powerful testimony to the ability of the jury process to
strip away prejudices—even ivor y tower
ones—and reveal more lasting truths.
■
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T
HE LOS ANGELES COUNTY BAR FOUNDATION’s 2001-2002
fund-raising campaign raised approximately $245,000
from corporations, foundations, individuals, law firms
and others. Direct contributions from law firms totaled $89,000;
individuals contributed $64,000; foundations contributed nearly
$6,000; and corporations and others contributed nearly $4,000.
In addition to these direct contributions, approximately $82,000
was contributed to the Foundation by individuals, corporations
and law firms by means of the Association’s annual dues statement voluntary contribution.
The Foundation wishes to express sincere thanks to all who
contributed during the 2001-2002 campaign. As part of the pro-
INDIVIDUAL
CONTRIBUTIONS
$10,000 or more
Ruth J. Lavine
$1,500-$9,999
Steven W. Bacon
Phillip L. Bosl
Sarah Heck Griffin
Vincent W. Jones
Deborah J. Ruosch
$1,000-$1,499
Gerald L. Chaleff
Richard Chernick
Glen B. Collyer
Donald A. Daucher
Stephen R. English &
Molly Munger
Stanley F. Farrar
Shirley M. Hufstedler
Martha B. Jordan
Sandra R. King
Joel W. H. Kleinberg
Margaret Levy
Robin Meadow
Covert E. Parnell III
Wayne Simon
Robert S. Warren
Daniel J. Woods
Donna J. Zenor
$500-$999
Linda Auerbach Allderdice
Donald P. Baker
Teresa A. Beaudet
Lori R. Behar
William J. Bogaard
Knox M. Cologne III
Brian K. Condon
Albert F. Davis
Laura V. Farber
James J. Gallagher
Richard E. Garcia
Mark Garscia
Richard B. Goetz
Albert S. Golbert
Feris M. Greenberger
Rex S. Heinke
Larry & Bobbie Liebenbaum
Neal S. Millard
Theodore N. Miller
Hon. Anthony J. Mohr
Hon. Margaret A. Nagle
Richard H. Nakamura, Jr.
David J. & Cynthia F.
Pasternak
Thomas D. Phelps
Nicholas P. Saggese
Patricia L. Shanks
Sheryl E. Stein
David W. Steuber
Patric M. Verrone
Richard J. Ward, Jr.
William E. Wegner
$200-$499
Michael I. Blaylock
Lester O. Brown
Gabrielle Harner Brumbach
Richard C. & Susan K.
Davidoff
Richard E. Hodge
Robert K. Johnson
Henry J. Josefsberg
Marcia L. Kraft
Bernard E. & Joan M. LeSage
James A. Lonergan
LeAnne E. Maillian
Hon. Nora M. Manella
James C. Martin
Douglas Wilson Otto
Ralph B. Perry III
James G. Phillipp
Patrick G. Rogan
Sheldon H. Sloan
Maria E. Stratton
Linda M. Stude
Patricia A. Van Dyke
Martin H. Webster
Hon. Paul Wyler
LAW FIRM
CONTRIBUTIONS
$10,000 and above
Paul, Hastings, Janofsky &
Walker LLP
$5,000-$9,999
Latham & Watkins
Morrison & Foerster
Foundation
O’Melveny & Myers LLP
$3,500-$4,999
McCutchen, Doyle, Brown &
Enersen LLP
Munger, Tolles & Olson
$2,000-$3,499
Akin, Gump, Strauss, Hauer &
Feld LLP
Alschuler Grossman Stein &
Kahan LLP
Arnold & Porter
Foley & Lardner
Fulbright & Jaworski LLP
Greenberg Glusker
2001-2002
FUND DRIVE
RESULTS
Howrey Simon Arnold &
White LLP
Irell & Manella LLP
Jaffe & Clemens
Jones, Day, Reavis & Pogue
McKenna & Cuneo LLP
Milbank, Tweed, Hadley &
McCloy LLP
Sidley Austin Brown & Wood
Skadden, Arps, Slate,
Meagher & Flom
$1,000-$1,999
Allen, Matkins, Leck, Gamble
& Mallory LLP
Dewey Ballantine
Fried, Frank, Harris, Shriver &
Jacobson
Gang, Tyre, Ramer & Brown
Charitable Foundation
Girardi & Keese
Greines, Martin, Stein &
Richland LLP
Hahn & Hahn LLP
Haight, Brown &
Bonesteel LLP
Hochman, Salkin, Rettig,
Toscher & Perez P.C.
Horvitz & Levy LLP
Hughes, Hubbard & Reed LLP
Manatt, Phelps & Phillips LLP
Marrone, Robinson, Frederick
& Foster
Mayer, Brown, Rowe & Maw
Murphy Sheneman Julian &
Rogers APC
Orrick, Herrington & Sutcliffe
Pillsbury Winthrop LLP
Reish Luftman McDaniel &
Reicher APC
Rutter, Hobbs & Davidoff Inc.
Sedgwick, Detert, Moran &
Arnold
Stroock & Stroock & Lavan LLP
Sullivan & Cromwell
White & Case
OTHER CONTRIBUTIONS
$5,000 and above
J. W. & Ida M. Jameson
Foundation
$2,000-$4,999
LACBA Corporate Law
Departments Section
$1,000-$1,999
TRW Inc.
cedures required in connection with its annual audit, the Foundation hereby lists all individuals who made contributions of $200
or more, and all law firms, corporations, foundations, and other
organizations that contributed $1,000 or more, during the period
beginning July 1, 2001, and ending June 30, 2002. If you are not
listed below, and you made a contribution to the Foundation fitting any of the above criteria, please contact the Foundation’s
independent certified public accountants, Grant Thornton, by calling Richard Simitian directly at (213) 688-1738.
The Foundation regrets that space limitations prevent the listing of the names of all contributors.
IN MEMORY OF...
JOSEPH A. BALL, by
Teresa A. Beaudet
Hon. George M. Dell
Douglas Wilson Otto
David K. Robinson
CHARLES R. ENGLISH, by
Gerald L. Chaleff
LeAnne E. Maillian
Douglas Wilson Otto
Linda M. Stude
Hon. Meredith C. Taylor
Norman L. Wilky
Hon. Paul Wyler
MARCO V. MENENDEZ, SR., by
Lila Arab
Minerva Corral
Corinne Cruz
Friends at Los Angeles
County ISD
Richard H. Mathews
Marco V. Menendez, Jr.
Arturo A. Molina
Thu Quach
VINCENT M. TOWNSEND, JR.,
by
David S. Ettinger
Ralph B. Perry III
IN HONOR OF...
DONALD P. BAKER, by
Martha B. Jordan
Patrick G. Rogan
JOHN H. BRINSLEY, by
Robert K. Johnson
Ethan Lipsig
Hon. Nora M. Manella
Paul, Hastings, Janofsky &
Walker LLP
Mr. & Mrs. Thomas A.
Techentin
CELE & PAUL KATZ, by
GERALD M. SALLUS, by
Marc L. Sallus
HENRY STEIN, by
Sheryl E. Stein
The Foundation would also
like to give special recognition to the following
individuals whose participation in various pledge
programs (as of 6/30/02)
reflects a firm commitment
to the Foundation’s goals:
HONOR ROLL
The names of Honor Roll
members have been permanently inscribed on a
distinctive “Wall of Honor”
at the County Bar offices.
Participants have contributed
or pledged to contribute the
amounts shown for each
category.
Founder ($50,000 or more)
Hyman J. Bradofsky
Hutto Patterson Charitable
Foundation
J.W. & Ida M. Jameson
Foundation
Donald C. Mitchell
Ralph J. Shapiro
Benefactor ($25,000 $49,999)
Roy H. Aaron
Hon. Richard A. & Ruth J.
Lavine
Jules & Doris Stein
Foundation
Lloyd & Susan Stockel
Patron ($15,000 - $24,999)
William J. Bogaard
Richard Chernick
Stanley F. Farrar
Gavin Miller
In Honor of David Pascale
John J. Quinn
In Honor of Richard Walch
Sponsor ($10,000 $14,999)
Don Mike Anthony
Joseph R. Austin
Robert E. Carlson
John Carson
Gerald Chaleff
Knox M. Cologne III
Charles R. English
Stephen R. English & Molly
Munger
Richard E. Garcia
Harry L. Hathaway
Robert K. Johnson
Patrick M. Kelly
Joel W. H. Kleinberg
Robin Meadow
Neal S. Millard
Covert E. Parnell III
Joseph Taback
David H. Vena
Hon. Charles S. Vogel
Robert S. Warren
Friend ($5,000 - $9,999)
Joseph W. Aidlin
Steven W. Bacon
Donald P. Baker
Patricia H. Benson
Paul F. & Isabel R. Cohen
Glen B. Collyer
Joe D. Crider
Donald A. Daucher
Lee Edmon & Dick Burdge
Larry R. Feldman
Mark Garscia
Albert S. Golbert
David E. Gordon & Mary D.
Lane
Hon. William P. Gray
Sarah Heck Griffin
Rex S. Heinke
Richard E. Hodge
Hon. William P. Hogoboom
Maria D. Hummer
John D. Hussey
Joan R. Isaacs
Leonard S. Janofsky
Vincent W. Jones
Martha B. Jordan
Sandra R. King
Richard G. LaPorte
Bernard E. & Joan M. LeSage
Margaret Levy
Malissa Hathaway McKeith
Theodore N. Miller
Hon. Anthony J. Mohr
Hon. Margaret M. Morrow
Hon. Margaret A. Nagle
John F. O’Hara
Ronald L. Olson
Andrea Sheridan Ordin
David J. & Cynthia F.
Pasternak
Aulana L. Peters
Thomas D. Phelps
Douglas Ring
Reade H. Ryan, Jr.
Harvey L. Silbert
Wayne Simon
Sheldon H. Sloan
Linda J. Smith
John D. Taylor
William W. Vaughn
Martin H. Webster
Hon. Robert Weil
John S. Welch
Francis M. Wheat
In Memory of Arnold V.
Winthrop
Daniel J. Woods
Donna J. Zenor
PRESIDENTS CLUB
Current and Former Bar
Association or Bar Foundation
presidents who have
contributed or pledged to
contribute a minimum of
$5,000 to the Foundation.
Roy H. Aaron
Don Mike Anthony
Joseph R. Austin
Donald P. Baker
Robert E. Carlson
John Carson
Gerald Chaleff
Richard Chernick
Knox M. Cologne III
Donald A. Daucher
Hon. Lee Smalley Edmon
Charles R. English
Stephen R. English
Larry R. Feldman
David E. Gordon
Hon. William P. Gray
Sarah Heck Griffin
Harry L. Hathaway
Rex S. Heinke
John D. Hussey
Joan R. Isaacs
Leonard S. Janofsky
Vincent W. Jones
Patrick M. Kelly
Ruth J. Lavine
Fred L. Leydorf
Neal S. Millard
Gavin Miller
Hon. Margaret M. Morrow
John F. O’Hara
Andrea Sheridan Ordin
David J. Pasternak
John J. Quinn
Sheldon H. Sloan
Susan R. Stockel
John D. Taylor
Hon. Charles S. Vogel
Robert S. Warren
Martin H. Webster
John S. Welch
Francis M. Wheat
LIFE FELLOWS
Individuals who have
contributed or pledged to
contribute in installments of
no less than $500 per year a
minimum of $2,500 to the
Foundation. (Note: All Honor
Roll members are also Life
Fellows.)
James N. Adler
Linda Auerbach Allderdice
Dean V. Ambrose
Hon. Orville A. Armstrong
Richards D. Barger
Jane H. Barrett
Teresa A. Beaudet
Lori R. Behar
Frank B. Belcher
Blanche C. Bersch
William M. Bitting
Stephen M. Blitz
Merrick J. Bobb
Robert C. Boffa
Phillip L. Bosl
Joel E. Boxer
Geoffrey L. Bryan
Kimberly L. Buffington
Martin J. Burke
Lauren Burton
Jerome C. Byrne
Claudia Carver
Paul A. Catalano
Edward C. Cazier, Jr.
Arlene Colman-Schwimmer
Brian K. Condon
Douglas C. Conroy
Hon. H. Walter Croskey
Hugh W. Darling
Albert F. Davis
Katessa Charles Davis
Maurice K. DeWolff
Sydney J. Dunitz
Pamela Dunn & Maria Louise
Cousineau
Hon. Walter R. Ely
Gregory L. Evans
Jonathan W. Evans
Laura V. Farber
Michael J. Fasman
Hon. Lisa Hill Fenning
Hon. Macklin Fleming
Georgia Franklin-Shutan
Jeffrey C. Freedman
Alan H. Friedenthal
James J. Gallagher
Patricia A. Gartner
Edward H. Gaylord
Robert T. Gelber
Russell T. Ginise
Richard B. Goetz
Hon. Arnold H. Gold
Prof. Max A. Goodman
Jan Charles Gray
Hon. Paul Gutman
Alan N. Halkett
Rex Heeseman
Robert Henigson
Grover R. Heyler
Edward W. Hieronymus
James R. Hutter
Bernard S. Kamine
Kelly W. Kay
Richard H. Keatinge
James H. Kindel, Jr.
Russel I. Kully
Frederick W. Lambert
John A. Lapinski
Grace M. Lee
Bruce M. Leiserowitz
Roderick W. Leonard
Fred L. Leydorf
Michael S. Lurey
Marsha McLean-Utley
Hugh L. Macneil
LeAnne E. Maillian
Vicki E. Marmorstein &
Seth A. Ribner
James C. Martin
Michael E. Meyer
Richard T. Morrow
Richard H. Nakamura, Jr.
Mark A. Neubauer
Robert H. Nida
Andrew J. Nocas
Stacey Olliff & Tracy Rich
Gregg Oppenheimer
Lee R. Petillon
Patricia Phillips
Stanley R. Rader
Karen Randall
Barbara A. Reeves
Kenneth O. Rhodes
Hon. Andria K. Richey
Robert G. Rifkind
David K. Robinson
Irving Rosenfeld
Alan I. Rothenberg
Edward Rubin
Deborah J. Ruosch
Harvey I. Saferstein
Nicholas P. Saggese
Herman F. Selvin
Patricia L. Shanks
Fran & Leonard Smith
John R. Stahr
Sheryl E. Stein
David W. Steuber
Clinton R. Stevenson
Richard J. Stone
Linda M. Stude
Jack Stutman
Hon. Robert M. Talcott
Stuart P. Tobisman
Maynard Toll
Franklin Tom
Clyde E. Tritt
Eugene L. Trope
Susan J. Troy
David C. Tseng
Robert C. Vanderet
Patric M. Verrone
Caroline C. Vincent
Richard S. Volpert
Richard Walch
John F. Walker, Jr.
Stuart B. Walzer
Donald M. Wessling
Michael S. Whalen
Franklin H. Wilson
Karen B. Wong & Scott W. Lee
Thomas E. Workman, Jr.
Kenneth B. Wright
Hon. Paul Wyler
Rosalyn S. Zakheim
2001-02 FELLOWS
Individuals who contributed a
minimum of $500 during the
last fiscal year and are not
Life Fellows or Honor Roll
participants.
Feris M. Greenberger
Shirley M. Hufstedler
Richard J. Ward, Jr.
William E. Wegner
installments of $50, $75, $100,
$125 and $150) a minimum of
$500 to the Foundation.
Barbara J. Bacon
James W. Bilderback II
Gabrielle Harner Brumbach
Elizabeth M. Calciano
Susan Skelding Couig
Patricia Egan Daehnke
Rebecca A. Delfino
Stuart R. Fraenkel
Joseph T. Hahn
Jacqueline J. Harding
Andres C. Hurwitz
Todd F. Nevell
Jennifer F. Novak
Lara Drino Schwartz
Lorin D. Snyder
Susan Koehler Sullivan
Justin Walcott
SUPPORTING MEMBERS
Individuals who have pledged
to contribute a minimum of
$100 annually to the
Foundation.
John W. (Jack) Alden, Jr.
Nicholas R. Allis
Hon. Helen I. Bendix
Michael H. Bierman
Maxwell M. Blecher
Brad D. Brian
Lester O. Brown
William Clark Brown
Prof. Christopher D. Cameron
Andrew J. Demetriou
Jack I. Esensten
Michael D. Fitts
Michele E. Flurer
Lois M. Jacobs
Henry J. Josefsberg
Diane L. Karpman
Terri D. Keville
Judy A. Kim
Miriam A. Krinsky
Robert N. Kwan
Edward A. Landry
Tomas R. Lopez
LeAnne E. Maillian
Victor I. Marmon
Frederick L. McKnight
Pansky & Markle
Barbara W. Ravitz
Toby J. Rothschild
Barry E. Shanley
Arthur F. Silbergeld
Edward C. Stieg
Ross E. Stromberg
Linda M. Stude
Paul D. Supnik
Patricia A. Van Dyke
Richard Walch
BARRISTERS FELLOWS
Members of the Los Angeles
County Bar Association
Barristers who have contributed or pledged to contribute
(over a 5-year period in
Fund-raising for the current fiscal year (7/1/2002-6/30/2003) is now underway. Visit the LACBF Web page at www.lacba.org/foundation or direct questions to the
Foundation’s administrator, Linda Stude, at (213) 896-6409 or e-mail her at [email protected]. Tax-deductible contributions may be sent to the Los Angeles County
Bar Foundation, P.O. Box 55020, Los Angeles, CA 90055.
IndextoAdvertisers
Aon Direct Admin/LACBA Prof Liability, Inside Front Cvr
Steven L. Gleitman, Esq., p. 21
Gary Ordog, MD, p. 68
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AMFS, Inc. (Am. Medical Forensic Specialists, Inc.), p. 65
G. Govine Consulting, p. 57
Ostrove, Krantz & Ostrove, p. 6
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A R Tech Forensic Experts, Inc., p. 62
Gursey, Schneider & Company, p. 52
Pacific Construction Consultants, Inc. (PCCI), p. 66
Tel. 818-344-2700 www.lawinfo.com
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AT&T Wireless, p. 10
Hamilton Boynton & Speakman, p. 48
Pacific Health & Safety Consulting, Inc., p. 69
Tel. 213-253-2400 www.attwireless.com
Tel. 818-986-4300 www.hbscpa.com
Tel. 949-253-4065 www.phsc-web.com
Ball CM, Inc, p. 51
Hargis & Associates, Inc., p. 63
PinnacleOne, p. 53
Tel. 800-919-7899 www.ballcm.com
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Tel. 213-486-9884 www.pinnacleone.com
Ballenger, Cleveland & Issa LLC, p. 57
Higgins, Marcus & Lovett, Inc., p. 61
ProData Imaging, p. 6
Tel. 310-873-1717
Tel. 213-617-7775 www.hmlinc.com
Tel. 800-675-4566 www.prodataimaging.com
Bert L. Howe & Associates, Inc., p. 60
Hirson Wexler Perl Stark, p. 36
Quo Jure Corporation, p. 12
Tel. 714-701-9180 www.berthowe.com
Tel. 323-936-0200 [email protected]
Tel. 800-843-0660 www.quojure.com
Law Office of Donald P. Brigham, p. 42
InterLingua, p. 8
Rick Engineering Company, p. 59
Tel. 949-206-1661 e-mail: [email protected]
Tel. 310-792-3636 www.thetranslationstation.com
California Community Foundation, Inside Back Cvr
Jack Trimarco & Associates Polygraph, Inc., p. 27
Rile & Hicks, Forensic Document Examiners, p. 71
Tel. 213-413-4130 www.calfund.org
Tel. 310-247-2637 www.jacktrimarco.com
Tel. 562-901-3376 www.asqde.org/rile.htm
Charles River Associates, p. 56
Fred M. Johnson, PhD., p. 65
Robert C. Peckham & Associates, p. 49
Tel. 202-662-3800 www.crai.com
Tel. 818-845-7400 www.peckhamassociates.com
The Chugh Firm, p. 42
KARS Advanced Materials, Inc., p. 57
Sanli Pastore & Hill, Inc., p. 46
Tel. 562-229-1220 www.chugh.com
Tel. 714-892-8987 www.karslab.com
Tel. 310-571-3400 www.sphvalue.com
Cohen Miskei & Mowrey, p. 59
Kaplan, Sherman Law Offices, p. 35
Steven Sears, CPA-Attorney at Law, p. 46
Tel. 310-278-2510 www.skaplan.com
www.searsatty.com
Coldwell Banker, p. 27
Jeffrey Kichaven, p. 12
Anita Rae Shapiro, p. 35
Tel. 310-556-1444 www.jeffkichaven.com
Tel. 714-529-0415 www.member.home.net/adr-shapiro
Commerce Escrow Company, p. 78
K & S Diversified Investments, Inc., p. 35
Southland Civic Credit Union, p. 4
Tel. 213-484-0855 www.comescrow.com
Tel. 800-426-1917 www.southlandcivic.org
Computerish Networks, Inc., p. 12
lawnetinfo.com, p. 61
Richard W. Swartz, Esq., p. 35
Tel. 800-811-8984 www.computerish.com
Tel. 818-727-1723 www.lawnetinfo.com
Construction Forensics, p. 52
Lawyers Mutual Insurance Co., p. 7
Law Office of Douglas S. Unger, p. 21
Tel. 800-252-2045 www.lawyersmutual.com
Daniel Powers, M.D., Inc., p. 69
Lexis Publishing, p. 1, p. 5
UPS, p. 2
Tel 800-222-6768 www.TheMRIPeople.com
www.lexis.com
Tel. 800-PICK-UPS www.ups.com
Desmond, Marcello & Amster, p. 53
Lyndehurst, Ltd., p. 60
URS, p. 71
Tel. 310-216-1400 www.dmavalue.com
Tel. 213-996-2571 www.urscorp.com
Edmonds Associates, Consultants, Inc., p. 65
Arthur Mazirow, p. 27
Vern J. Grady, CPA, CVA,CITP, p. 73
Tel. 949-250-8858 www.edmondsconsultants.com
Emergency Medicine Expert, p. 67
MacInnis Engineering Associates, p. 55
V.E.S., Inc., p. 46
Tel. 650-677-8635 www.drwapen.com
Tel. 949-855-4632 www.maceng.com
Tel. 800-734-2248 www.vesinc.net
Fax & File, p. 21
Thomas H. Milby, MD, p. 66
Vision Sciences Research Corporation, p. 70
Tel. 415-491-0606 www.faxfile.com
Tel. 925-284-4944 www.toxicology.leadingexperts.com
Tel. 925-837-2083 www.apgvsrc.com
Field & Testing Engineering, Inc., p. 70
Gil N. Mileikowsky, M.D., p. 63
Temmy Walker, Inc., p. 71
Tel. 310-858-1300
Forensic Consultants Assn., Orange/L. A. Chapter, p. 59
Clinton E. Miller, JD, p. 68
West Group, p. 8, p. 9, p. 31, Back Cvr
Tel. 949-640-9903 www.forensic.org
Tel. 408-279-1034 www.quikpage.com/m/millerjd
Tel. 800-762-5272 www.westgroup.com
ForensisGroup Inc., p. 49
Miod and Company, LLP, p. 60
White, Zuckerman, Warsavsky, Luna & Wolf, p. 15
Tel. 626-795-5000 www.forensisgroup.com
Tel. 818-905-5822 www.miod-cpa.com
Tel. 818-981-4226 www.wzwlw.com
Frank Vernon Jewelers, p. 28
Mr. Truck, p. 61
Witkin & Eisinger, LLC, p. 21
Tel. 213-683-1480
Tel. 310-670-1500
Samuel K. Freshman, p. 69
National Jury Project West, p. 43
Zivetz, Schwartz & Saltsman, p. 49
Tel. 510-832-2583 www.njp.com
Tel. 310-826-1040 www.zsscpa.com
FULCRUM Financial Inquiry LLP, p. 45
National Properties Group, p. 46
ZymaX Forensics, p. 62
Tel. 213-787-4100 www.fulcruminquiry.com
Tel. 310-516-0022
Tel. 805-544-4696 www.zymaxforensics.com
Arnold L. Gilberg, MD, PhD., A Prof. Corporation, p. 61
Noriega Clinics, p. 79
Tel. 310-274-2304
Tel. 323-728-8268
CLE Preview
The Digital Practice of Law
ON FRIDAY, NOVEMBER 8, the Los Angeles County Bar Association will present a
seminar titled “The Digital Practice of Law: Legal Technology, Electronic Discovery,
Internet and Courtroom Technology.” Presenter Michael Arkfeld is the author of the
book The Digital Practice of Law, a comprehensive look at legal technology
applications that have assisted many in the transition from an analog to a digital
practice in the law office. (Those who attend will receive a copy.) His seminar will
cover the Internet, virtual depositions, electronic discovery, courtroom technology,
application service providers, intranets, and extranets, as well as new and emerging
trends in hardware, software, and telecommunications. This event will be held at the
LACBA/LEXIS Publishing Conference Center, 281 South Figueroa Street, Downtown.
Parking at the Figueroa Courtyard Garage will be available for $7 with LACBA
validation. On-site registration and a light breakfast will begin at 7:45 A.M., with the
program continuing from 8 A.M. to 5 P.M. The registration code number is 7095K08.
$150—CLE+PLUS members (meals included)
$175—students (meals included)
$300—LACBA members
$450—all others
8 CLE hours
Tax Night 2002
ON TUESDAY, NOVEMBER 12, the Taxation Section and the California Society of CPAs will
present a program on current developments in taxation. This annual program will offer
three breakout sessions and one general session, during which presentations will be given
in the following areas: compensation and benefits, corporate tax, entertainment tax,
estate and gift tax, foreign tax, pass-through entities, procedure and litigation, state and
local taxation, and tax-exempt organizations.
Following a new format this year, the program will offer each person the opportunity
to attend three breakout sessions and one general session. At the general session, the
keynote speaker will be Gregory F. Jenner of the Treasury Department. A hosted reception
will follow the program, giving participants the opportunity to network with prominent
taxation attorneys and CPAs. The program will take place at the Los Angeles Marriott
Hotel, 333 South Figueroa Street, Downtown. On-site registration will be available starting
at 3 P.M., with the program continuing from 3:30 to 7:05 and a hosted reception from 7:05
to 8:30. The registration code number is 8061K12.
$80—CLE+Plus members
$120—Taxation Section members
$190—all others
$210—all at-the-door registrants
3.25 CLE hours
Persuasive
Legal Writing
ON WEDNESDAY,
NOVEMBER 6, the Los
Angeles County Bar
Association will present an
event on how to attain
clarity in legal writing.
Presenter Daniel U. Smith
will focus on past examples
of great writing by Thomas
Jefferson and Abraham
Lincoln as well as other
models of clarity in the
American idiom.
This course advocates
brevity, simplicity, and
clarity—the opposite of
what most lawyers learned
in college and law school.
Those who attend can also
learn to structure a
persuasive argument and
review the key steps for
effective drafting and
editing. Since 1995, this
seminar has been
presented by the Los
Angeles County Bar
Association, the San
Francisco Bar Association,
Continuing Education of
the Bar, and by law firms
across California.
This event will be held
at the LACBA/LEXIS
Publishing Conference
Center, 281 South Figueroa
Street, Downtown. On-site
registration and meal will
begin at 5:30 P.M., with the
program continuing from 6
to 9:15. The registration
code number is 7094K06.
$90—CLE+Plus members
(meal included)
$100—law students (meal
included)
$195—all others
3.25 CLE hours
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed
on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://forums.lacba.org/calendar.cfm. For a full listing of this month’s Association programs, please consult the November County Bar Update.
closing
argument
By Ty Tasker
The Promise of Law Analysis Technology
Applying artificial intelligence to the practice
of law will improve efficiency and accuracy
ompared to other businesses and professions, the technology
of automated analysis has lagged in the legal profession. While
it is true that legal professionals have embraced more routine
computer functions, the legal profession has substantially underutilized the potential of computer applications to accept factual input, apply
reasoning, and reach conclusions for broad areas of issues. In contrast,
other professions already employ automated analysis software programs to understand business trends, manage finances, plan taxes,
and diagnose medical conditions.1 Now, however, promising developments are on the horizon for the legal profession as well.
There are several reasons why the legal profession has lagged in
this area. One is the widespread belief that the law is not a good candidate for the use of analytical computer programs because legal
reasoning requires judges and jurors to employ considerable human
subjectivity when making decisions. For example, fact-finders in the
legal setting frequently must determine whether someone acted like
a reasonably prudent person acting under similar circumstances. In
contrast, so goes the argument, business, financial, and health analyses are more similar to mathematical or scientific computations.
In addition, the development of automated legal analysis has suffered from a shortage of qualified authors. Not many attorneys understand computer programming or how to communicate concepts to
information technology specialists. Similarly, programmers usually lack
the schooling and experience in litigation or transactional work that
is needed to conceive the most optimal innovations.
Despite these obstacles—and as wildly futuristic as it may seem—
computerized legal reasoning already is technologically possible and
potentially of tremendous value. While no respected expert would
argue that artificial intelligence is close to becoming a substitute for
human reasoning, existing programming languages are capable of
greatly complementing the work of law professionals. Such innovations would go well beyond producing the customary search-enginetype lists of authorities and summaries that can be generated by keyword searches or the familiar services of Westlaw or Lexis.
Instead of relying heavily upon the legal professional to discern
the significance of search results, interpret meanings, and apply
facts, future programs will generate custom-tailored legal analyses,
in proper grammar, based upon an attorney’s input of answers to form
questions. Programs will be able to predict litigation results or recommend choices among transactional or advocacy approaches by
mathematically weighing the numbers and types of factors and comparing applicable cases and statutes. Moreover, when a computer finds
conflicting evidence, it will be able to assume different fact patterns
and predict a possible array of results.
One trend supporting this work has been the development of
C
software-interpreting, programmer-friendly languages that make it easier to bridge the gap between professionals speaking legalese and
those using technical jargon. These languages employ visually appealing interfaces that utilize code editors that interpret scripts in a manner resembling familiar English grammar, instead of requiring the writing of foreign code. This makes it easier for the programmer to
modify the programming codes, a skill previously known only to a few.
Legal professionals who become adept at using these new tools will
reap the benefit of substantially improved efficiency and accuracy in
their legal analyses. For example, automated analysis software could
remind legal researchers of a forgotten law or case or point them
towards recent developments or overlooked issues. Additional efficiency would be gained by advancing the starting point for research
from the cold, unapplied broad outline of law that researchers currently
find when employing secondary authorities to an already partially analyzed and tailored resource.
To get the ball rolling, advocates of automated analysis software
need to put their more grandiose goals—however admirable—on
the back burner and pursue a more limited approach at this time. This
limited agenda will include:
• The identification by legal researchers of modest goals—including beginning with simpler laws—that require limited levels of reasoning. Complexity can be added gradually as the technology develops.
• The development of custom-tailored
statements generated by programs based
on code embedded with the human-reasoned writings of legal professionals, as
opposed to attempting to create an automated replication of the human mind.
• The development of applications by
professionals who understand both legal
analysis and programming.
The future is already clear: In the
Ty Tasker is a court
next 5 to 10 years attorneys will be
research attorney
expected to consult artificial intelligence
who has worked on
as an integral part of their client repreWeb and intranet
sentation. This process will become the
design for governstandard of care in the profession, and
ment and public
those who ignore it will increase their
interest groups and
exposure to malpractice claims.
■
1
See, e.g., F OOD AND D RUG A DMINISTRATION
CONSUMER MAGAZINE, available at www.fda.gov
/fdac /features/795_compdiag.html.
developed lawrelated Internet
programming.
Charitable Gift Annuity
Charitable Lead & Remainder Trusts
Donor Advised Funds
The Charitable Family IRA
Planned
GivingExplore the
Options.
When your clients ask you about tax-smart giving,
or how to include a significant charitable contribution
as part of their estate plans, the California Community
Foundation is here to help. Since 1915, we’ve been
working with donors and their advisors to make
the practice of philanthropy easy and cost-effective.
To learn more about our philanthropic products
and services, visit our Web site at www.calfund.org
and click on “Advisor Center.”
California Community Foundation
445 South Figueroa Street, Suite 3400
Los Angeles, California 90071
(213) 413.4130 fax (213) 622.2979
Funding the Future of Los Angeles County Since 1915
We make sure you’re always covered.
Real peace of mind comes from always knowing that someone is watching out for
you, making sure you never miss relevant cases. The truth is, nobody gives you more
on-point cases than Westlaw®. And even better, you don’t have to guess what
language the court used in an opinion. But that’s just one way we make sure you’re
covered. Our headnotes, synopses and Key Number System all give you a decided
advantage. Differences that matter.
Try us at www.westlaw.com. Or call 1-800-WESTLAW (937-8529).
© 2002 West Group W-105493/9-02 Trademarks shown are used under license.

NOVEMBER 2002 for www - Los Angeles County Bar Association

Transcription

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