Journal of Consumer Attorneys Associations for Southern California
Advocate Survey:
The impact of juror demographics on damage awards
Conclusions drawn from hundreds of mock trials and over 1,000 mock jurors
VOIR DIRE Embracing voir dire
Think of it as a dinner party, like getting to know a group of strangers
Jury selection
A judicial perspective on the best part of a trial
Voir dire in auto-accident cases
Getting to know you...
Seating jurors who are not afraid to award damages
Take a breath
They’re just as nervous as you are
Getting to know all about you. AND OTHER TRIAL TECHNIQUES Back to the egg — The influences that created a better trial lawyer
Telling the human story, from voir dire through opening statement Minor impact, major injuries — Winning the credibility battle
Jury instructions in medical malpractice
Cross-examination of defendants and their experts
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FEBRUARY 2013
The Advocate Magazine — 5
Contents Volume 40, Number 2, FEBRUARY 2013
Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, Mary Bennett, Joan Kessler, James Kristy, Beverly Pine, Norman Pine, Rahul Ravipudi, Linda Rice, Ibiere Seck, Geraldine Weiss Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Publisher Managing Editor Richard Neubauer Cindy Cantu rn@theadvocatemagazine.com cindy@caala.org Copy Editor Art Director Eileen Goss David Knopf Consumer Attorneys Association of Los Angeles President Treasurer Lisa Maki Ricardo Echeverria President-Elect Secretary Geoffrey Wells Michael Arias First Vice President Immediate Past President Joseph Barrett Michael Alder Second Vice President Executive Director David Ring Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Steve Goldberg, Jeff Greenman, Christa HaggaiRamey, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Anthony Luti, Shawn McCann, Minh Nguyen, Linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Douglas Silverstein, Armen Tashjian, Kathryn Trepinski, Geraldine Weiss, Jeff Westerman, Ronnivashti Whitehead, Andrew Wright, Dan Zohar Orange County Trial Lawyers Association Secretary President Geraldine Ly Scott Cooper Treasurer President-Elect Casey Johnson
B. James Pantone
Second Vice President Vincent Howard Third Vice President
Douglas Schroeder
First Vice President Ted Wacker
H. Shaina Colover
Parliamentarian Jonathan Dwork Immediate Past President Executive Director Janet Thornton
Board of Directors Melinda S. Bell, Gregory G. Brown, Anthony W. Burton, Brent W. Caldwell, Cynthia A. Craig, Jerry N. Gans, Robert B. Gibson, Paul E. Lee, Kevin G. Liebeck, Christopher E. Purcell, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2013 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.
ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
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Features:
14 Cross-examination: Defendants and experts
One of the best ways to advance your theory of the case is to attack the defense through cross-examination. The authors discuss specific tactics to create a successful cross-examination of defendants and their experts.
John C. Taylor and Robert R. Clayton
26 Back to the egg
Reflecting on his career, the author shares 10 keys that influence him as a trial lawyer. He examines the value of mentors and support to enhance his own skills.
Joseph M. Barrett
32 Brutal honesty: telling the human story for the jury
You have to be ready to try any case. Learn to care about, feel, and share your clients’ stories with a group of people you care about, your jury. Be brutally honest about your case and the justice you are going to ask the jury to give. Try cases, don’t give in to the pressure of settling cheap when you know in your heart that your client deserves more.
Nicholas C. Rowley
Minor impacts, major injuries: Winning the 44 credibility battle in trial
Juries don’t always believe that major injuries can result from minor accidents. The author explains how to present your client and to handle expert witnesses in a challenging case.
Thomas Steven Feher
52 Embrace voir dire
Every question you ask should seek information. The writer suggests the transference of skills from normal networking to understanding how to address the jury. He explores how to counteract the defense’s “poisoning of the well” among other strategies.
Victor George
Using jury instructions effectively in 56 medical-malpractice cases
Going beyond CACI and BAJI, the writer gives concrete examples of how to define “negligence” and “reasonable” to convince the jury.
John F. Denove
62 Take a breath: they are just as nervous as you are
Learning while sitting on a jury himself, a young attorney shares five easy steps to overcome the stress and nerves we run into before and during trial.
Jeffrey Greenman
68 Voir dire in auto cases
Here are tips on how to seat impartial jurors through hearing their answers at voir dire.
Robert S. Fink and Amy Fisch Solomon
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Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org
FEBRUARY 2013
74
Jury selection – a judicial perspective
A jurist explains why choosing a jury can be the most exciting part of a trial. He reveals the judge’s perspective during voir dire.
Hon. Mark V. Mooney
78
Quantifying the impact of juror demographics on damage awards
A report on the results of a survey of mock jurors and the role demographics play in their award of damages.
Chris Denove
89
Voir Dire Tips from the OC Bench
Eight sitting judges tell you how to prepare for voir dire in their courtrooms.
Tr i a l s O On-Demand n-Demand
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A BOUT THIS I SSUE Voir Dire and Other Trial Techniques
In the Trenches Ibiere Seck
A PPELL ATE R EPORTS Recent cases of interest to members of the plaintiffs’ bar. Jeffrey Isaac Ehrlich F ROM
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Orange County Trial Lawyers Association
Back to the Basics Scott Cooper F ROM
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98 99
Consumer Attorneys Association of Los Angeles
Consider the source: A surprising article about medical malpractice
G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento & Washington.
L AW O FFICE M ANAGEMENT
Six financial hazards every continency firm should avoid The importance of a regularly updated cash-flow projection.
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Installation Ins tallation & R Removal emoval
Michael Blum
E XECUTIVE D IRECTOR
Stuart Zanville
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CAALA offers four attorneymember-only list serves
Day-in-the-Life Day-in-the-Life Videos Vid eos
From surviving as a new lawyer to getting politically active, these list serves are designed to meet specific needs of CAALA members. F ROM
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FEBRUARY 2013
The Advocate Magazine — 7
About this Issue Ibiere Seck
Editor-in-Chief
Voir Dire and Other Trial Techniques
In the trenches When I first started practicing law four years ago, I happened upon a startling statistic: only 10 percent of all cases in litigation ever go trial. I was stunned. As a law student, I had dedicated myself to trial advocacy in the hopes of being that briefcase-toting, zealous trial lawyer fighting for the people. Needless to say, I was deeply disappointed. “You mean to tell me that I won’t be in court every day?” I thought. As you all know, attorneys spend countless hours preparing for trial only to have the case settle at mediation or on the eve of trial on the courthouse steps. This issue of Advocate, however, focuses on those cases that do go to trial, highlighting the trial techniques of both highly experienced trial lawyers and a few “rising stars.” The authors offer their tools of success and, in some cases, their very personal experiences in the hopes that your next trial experience will be both positive and fruitful. Victor George’s article on voir dire, is chock-full of useful tips on how to comfortably and effectively choose a winning jury. He suggests that you think of
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FEBRUARY 2013
voir dire as a dinner party where you, the trial lawyer, are one of the invited guests. His approach will undoubtedly make a very awkward and stressful process as easy as pie. Newer trial lawyers, Jeff Greenman and Thomas Feher, share valuable trial techniques for both seasoned and lessexperienced trial lawyers. Greenman candidly recalls the anxiety he felt during his first jury trial and offers readers five easy things lawyers can do to deal with nervousness and take control of the courtroom. In his article, Minor impacts, major injuries: Winning the credibility battle at trial, Feher provides a roadmap on how to prepare for and then try to win our most common (and sometimes most challenging) cases: the so-called minor injury/soft-tissue case. Feher argues that the key to success in such cases is presenting a credible case to the jury. Feher’s detailed article lays out the steps. Trial lawyer partners John C. Taylor and Robert R. Clayton tackle the tricky and technical task of defendant and expert cross-examination. Specifically, they explain how to both advance the theory of your case and attack the defense theory of the case through crossexamination. Their list of “fifteen principles of effective cross-examination” is an excellent take-away for all trial lawyers and will prove useful when taking on hostile defendants and experts. Joseph Barrett reflects on his 20year legal career in Back to the Egg. Calling on his experiences as a trial lawyer, Barrett shares with us his keys to success and what he learned from the many great lawyers who came before him. Former CAALA president John Denove demystifies the CACI and BAJI instructions most used in med-mal cases. He encourages trial lawyers to adopt
simple language when explaining the medical defendants’ conduct. He also demonstrates how to use critical jury instructions throughout the course of the trial. While much can be said about the technical aspects of trying a case, many find that not much attention is paid to the psychology of trying a case. Trial lawyer Nicholas Rowley’s article stresses the importance of connecting in a very personal and authentic way with humans: not just the person you are representing, but also their families, friends, and with the jurors. Rowley also gives an excellent example of how to conduct a voir dire in a conservative district on the issue of non-economic damages and shares his strategy on giving an opening statement. It is well worth reading. In their article Voir Dire in Auto Cases, Robert S. Fink and Amy Fisch Solomon suggest specific areas of discussion and examination one can offer to the prospective juror in all auto cases. They also provide readers with a list of questions on the issue of damages – the heart and soul of the case. Chris Denove, himself a former trial lawyer, explores how racial, political and other juror demographics can influence damage awards. This article is but one result of the author’s research firm sampling 1,500 mock jurors. Finally, a sitting trial judge, Hon. Mark V. Mooney, offers a judicial perspective on jury selection that is, in his words, “the most exciting part of the trial.” According to Judge Mooney, what makes voir dire exciting is that it is unpredictable, and accordingly, he offers our readers instruction on how to properly question the prospective jurors and, more importantly, how to listen to their answers.
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10 — The Advocate Magazine
FEBRUARY 2013
John C. Taylor
Robert R. Clayton
Cross-examination of the defendant and its experts One of the surest ways to go from predator to prey at trial is when your cross-exam of a defense expert goes wrong
The art of cross-examination is something that is developed over many years of trial experience. There are, however, some fundamental principles that can help each of us hone our cross-examination skills. For present purposes, this article will focus on some general principles of cross-examination and then turn more specifically to the cross-examination of defendants and defense experts. And please, whenever a tactic discussed here is stated as a “rule” or something that should “always” or “never” be done… take it with a grain of salt. Your experience will let you know that all “rules” have their exceptions and crossexamination is a dynamic confrontation.
14 — The Advocate Magazine
FEBRUARY 2013
General principles of cross-examination
Section 773(a) of the California Evidence Code states, “A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs.” The scope of cross-examination is limited to matters raised on direct examination. However, the scope of cross-examination is left to the sound discretion of the trial court. (Garcia v. Hoffman (1963) 212 Cal.App.2d 530, 526) ‘Scope of direct’ includes the matters the witness actually testified to on
direct as well as reasonable inferences that can be drawn therefrom. (People v. Wrigley (1968) 69 Cal.2d 149, 162) Questions that pertain to a witness’s credibility are also proper for crossexamination. (Evid. Code, § 785; People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Most courts interpret ‘scope of direct’ very liberally and permit questioning on any subject that was touched upon during direct examination. This includes, but is not limited to, a witness’s ability to perceive, communicate and recall the event, as well as their bias, interests, motives, and poor reputation for truthfulness.
See Cross, Page 16
Cross — continued from Page 14
Before cross-examining a witness, make sure that you have studied the evidence obtained through discovery, identified the goals of your cross-examination, and mapped out your plan of attack – cross-referencing the evidence to be used in that attack. Equally important is the need to listen during the direct examination of the witness. Too often attorneys remain wedded to their battle plan and they fail to hear a witness overreach, misstate prior testimony, or inadvertently concede a point upon which they can capitalize. Watch for mistakes and pounce on them. You should never pass up an opportunity to use leading questions to draw concession from a defense witness that will support the plaintiff ’s theory of the case or contradict that of the defense. “Isn’t it true that…?” questions are proper cross-examination questions when there is evidence in the record to support such facts, even if the evidence is disputed. (Marcus v. Palm Harbor Hospital, Inc. (1967) 253 Cal.App.2d 1008, 1015) Such a question may also be proper if the cross-examiner has a good-faith belief the facts will be proven by admissible evidence. (See People v. Wagner (1975) 13 Cal.3d 612, 619.)
Never give the defendant or the defense expert an opportunity to get on a soap-box with an open-ended question. Especially with experts, they will take that opportunity to re-emphasize their opinions, conclusion and reasons for reaching them. Effective cross-examination should start strong and end on a high note. Jurors tend to remember the first and last things said so frontload your cross-examination and save something good for last. Also, keep your questions short and concise and remain in control of the fight by asking leading questions and disallowing non-responsive or evasive responses. Like an attack on an enemy stronghold; get it, inflict damage, and get out. It will keep the jury’s attention and result in fewer casualties for the good guys. Here are 15 well recognized principles of effective cross-examination to keep in mind: (1) always have a specific purpose; (2) be prepared; (3) address your strongest points first and last; (4) be brief; (5) use plain language; (6) focus on a few key points; (7) ask only leading questions; (8) never ask a question that you do not know the answer to; (9) never ask the witness “Why?”; (10) disallow witness explanations; (11) elicit testimony
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that is favorable to your case first; (12) keep your cool and never argue with the witness; (13) listen to the witness’s answers on direct and cross; (14) never attack a witness’s credibility without evidence to support your attack; and (15) quit while you are ahead.
Cross-examination of the defendant
Regardless of how hostile a defendant may be, there is usually favorable testimony that can be obtained in crossexamination. This is often true with regard to the chronology of events, establishing that conversations took place, knowledge of dangerous aspects of a product/ intersection, driving manner, foundation of documents, authentication of signatures, and/or establishing undisputed facts that are favorable to the plaintiff ’s case. There may also be ample opportunity to discredit the defendant’s story by attacking the defendant’s ability to accurately perceive events when they occurred quickly or unexpectedly; when there were line-of-sight obstructions; lighting limitations; weather factors (rain, fog, glare from the sun, etc.); the witness had vision or hearing problems; the
See Cross, Page 18
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Cross — continued from Page 16
defendant was intoxicated; the defendant was using a cell phone; and/or where there were other distracting events that affected the defendant’s ability to accurately and completely perceive events. One of the most effective ways to impeach a defendant is through the use of prior inconsistent statements. (Evid. Code, § 780(h)) These often come in the form of statements attributable to the defendant in a police report, statements made under oath in a deposition or grand jury testimony, declarations presented in support or opposition to pretrial motions, and/or in letters or e-mails. Prior inconsistent statements can also come in the form of eyewitness testimony from others who heard the defendant make the statements. When a defendant has provided a prior inconsistent statement under oath
18 — The Advocate Magazine
FEBRUARY 2013
(e.g. deposition, grand jury, or declaration), you can either question the defendant about the statement or simply read it into evidence. (Code Civ. Proc., § 2025.620; Evid. Code, §§ 768(a), 770(b)) More often than not, it is better to simply read the prior testimony into the record so that the defendant cannot attempt to explain away the inconsistency. Of course, defense attorney may attempt to rehabilitate the defendant through redirect, but you can then hammer home the inconsistency in your re-cross and point out counsel’s attempt to creatively explain away the inconsistency. With regard to prior statements that were not under oath, remember to first lay the foundation for the record. For example, when confronting a defendant about a statement in a police report that is attributable to him/her, have the
defendant confirm: (1) that he/she spoke to the police at the scene; (2) that the officer was taking notes during the conversation; and (3) then confront the defendant with the impeaching statement from the police report. If the defendant denies the statement contained in the police report, call the police officer who wrote the report and heard the statement as an impeachment witness. In general, you do not have to show the prior inconsistent statement to the defendant before questioning him/her about it. (Evid. Code, §§ 768(a), 769.) However, make sure you get the foundational questions out of the way first. You should also afford defense counsel the opportunity to examine a written or recorded statement immediately prior to
See Cross, Page 20
Cross — continued from Page 18
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and during its use at trial. (Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 821.)
Cross-examination of the defense expert
“In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.” (Louis Nizer - Feb, 6. 1902 – Nov. 10, 1994) One of the surest ways to go from predator to prey during trial is when your crossexamination of an experienced defense expert goes wrong. There are many ways to keep that from happening. Preparation Before cross-examining a defense expert, it is important to do your research. First, find out who the expert is. The expert’s CV will be attached to the defendant’s expert designation – read it. It can be very revealing. For instance, an expert may have little training or experience in the particular issues in the case. In certain cases, some attorneys actually subpoena the expert’s educational records to make sure they are true and accurate. The expert’s CV will also list books, papers and periodicals that he/she has authored. These too can be valuable sources of impeachment, where the expert has addressed the same issue in your case, and expressed opinions or observations that are at odds with his testimony in court. In researching the expert, always run an Internet search. The amount of information that can be obtained from the Internet is astonishing. Many experts also have their own Web sites with vast amounts of useful information. For example, if the Web site touts all of the expert’s defense and insurance company clients, that can be used during crossexamination to suggest bias. Second, familiarize yourself with the subject matter of the defense expert’s testimony. This will allow you to engage in a meaningful conversation with the expert at both deposition and trial. It will also allow you to dumb-down the technical jargon at trial which makes the subject of the testimony more understandable to the jury. Again, the Internet is an
See Cross, Page 23
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Cross — continued from Page 20
incredible resource for familiarizing yourself with the expert’s area of testimony. However, the most valuable resource will be the use of your own experts to bring you up to technical speed. You can also read authoritative books and periodicals – including any authored by your expert or the defense expert. Third, always review the documents the expert was provided by the defense attorney. If the defense expert was not provided with certain evidence (e.g. deposition transcripts, photographs, reports, etc.) or the expert failed to consider important facts in forming his/her opinions, this can be a very powerful point for attack in your cross-examination. Next, know the defense expert’s opinions. Review the transcript from the expert’s deposition. Make a list of each opinion and where it was identified in the transcript. This quick reference guide will be incredibly valuable if the expert attempts to introduce new opinions at trial and you need to bring a Kennemurtype motion/objection. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907) Finally, plan your attack. Having now identified the strengths and weaknesses of the expert’s background and opinions, map out a concise and risk-free cross-examination. You should have a clear picture of where the examination will go and where it will end. The goal of your cross-examination should be to precisely lay out your theory of the case with testimony from the defendant’s own expert. You will rarely win an argument with the expert….he’s not going to concede after all his work and prior testimony, that your cross-examination has changed his mind and he now sees the errors of his ways. Testimony that supports your position Whenever possible, get the defense expert to concede facts that support your theory of the case and/or to agree with the opinions of your experts. Even if not on the major issues, it adds credibility to your position and helps the jury distinguish what is truly in dispute. If the defense expert has conceded certain facts in direct or in his/her deposition that
supports your theory of liability, start your cross-examination with those. Discrediting the defense expert An expert witness may be cross-examined regarding his/her qualifications, the subject of his/her opinions relates, the matter upon which his/her opinions are based, the reasons for his/her opinions, and the compensation arrangements for his/her testimony. (Evid. Code, §§ 721(a), 722(b)) This can be done by attacking the expert’s qualifications, integrity, credibility, and opinions. • Qualifications It is often difficult to attack an expert witness on his qualifications. After all, if the expert were clearly unqualified to testify at trial you would have successfully brought a motion in limine or requested a hearing under Evidence Code section 402 to exclude the expert before he/she took the stand. However, be on the lookout for opportunities to show that the expert lacks the qualifications needed to testify about the specific matters at issue. If the expert is a “jack of all trades,” exploit that fact and suggest that he/she is a master of none. This can be especially effective if the expert has never previously testified about a similar product, similar injury, or similar factual situation. • Bias In the past, economic bias was an effective weapon to use in cross-examination. However, today jurors are more familiar with trials on television and know that experts are paid a considerable amount to testify at trial. However, where a defense expert’s bills are clearly excessive and out of line with the charges of other experts in the case, there is opportunity to show the expert’s financial bias. The most effective bias argument is when an expert has historically been retained primarily by the defense. These experts tend to formulate opinions that are very similar from one case to another, often take very little time to formulate those opinions, and/or do so with very little evidence. It is important to bring out this disproportionate retention rate and to suggest in your questioning that the defense knew the expert would
express the desired opinions and that he/she so testified to ensure future lucrative work as a ‘defense expert.’ • Validity of opinions One of the other purposes of crossexamination is to deconstruct and simplify the defense expert’s testimony in order to expose the weaknesses in his/her opinions. In order to do this, you must attack the expert’s analysis and the foundation for his/her opinions. By simplifying the expert’s testimony and revealing discrepancies between his/her research and your case, the expert’s opinions will often appear unreliable. However, it is often counterproductive to try to prove a defense expert wrong during cross-examination. Instead, you should attempt to sow seeds of doubt in the minds of the jurors about the reliability of the defense expert’s opinions. If given the opportunity, establish that the expert was not privy to certain evidence (e.g. deposition transcripts, photographs, reports, etc.) or that he/she failed to consider important facts in forming his/her opinions. Whenever a defense expert’s opinions are based on contested facts, point that out in cross-examination. You may even get the expert to admit that his opinions are based upon facts that may not be true or that his/her opinions would change if the facts were different. Consider using hypothetical questions based upon your client’s statement of the facts and get the expert to admit that if true, his/her opinions would be different. Many times you can establish that the expert’s opinions would be different if a small change in conditions were made and that some of his/her opinions are based merely on assumptions. When possible, use a transcript from a prior deposition of the expert or a treatise authored in whole or in part by the expert to impeach his/her testimony at trial. There are on-line sources like trialsmith.com that stockpile prior expert deposition transcripts. Also, networking and membership in trade organizations, like CAALA, can be a valuable source of information and deposition transcripts on defense experts. FEBRUARY 2013
The Advocate Magazine — 23
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Prior inconsistent or contradictory opinions from prior depositions can be a powerful tool to use against a defense
expert at trial. However, when using a prior deposition, do not forget that most jurors are not familiar with depositions.
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FEBRUARY 2013
In addition to asking the court to instruct the jury about depositions, make sure you walk the expert through leading questions about his retention in the prior case, get the expert to agree that the facts and circumstances at issue are substantially similar to that prior case, that the expert gave testimony under oath in that prior case, and then clearly and concisely hit the expert with the contradictory prior testimony so the jury understands the importance of this impeachment. Remember, when using the prior testimony, use closed questions that give the expert little chance to explain away the conflicting testimony. Finally, choose your times to verbally spar with an experienced expert. You will have to decide if the jury is going to better appreciate your case if you and the expert argue about a topic or issue that has meaning to only the questioner and witness. Pick your confrontations carefully and keep the focus of your challenge very narrow. Be as brief as possible. After obtaining the concessions you want, get out and use those points with other witnesses or in your closing.
Summary
Never lose sight of the fact that a good advocate usually tells a compelling story. Your job is to persuasively present your client’s case. Cross-examination is the most dynamic and powerful tool to that end – use it! In order to effectively capitalize on cross-examination, plan, lead, and control the fight.
John Taylor is a founding partner at the Westwood firm Taylor & Ring. The firm handles personal injury, wrongful death, professional negligence and insurance bad-faith cases. Taylor has received the Trial Lawyer of the Year Award from both CAALA and the legal publication Verdictum Juris. For more than a decade, he has been named in The Best Lawyers in America. He is a Diplomate of ABOTA. Robert Clayton is a partner at Taylor & Ring. Each year from 2006-2011, Robert was recognized as one of the top lawyers under the age of forty by Southern California Super Lawyers. In 2012, he was named a Super Lawyer.
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Back to the egg A trial lawyer relates the people, moments and habits that have shaped him
The moment that shaped me as a trial lawyer happened a few years into my practice. A good friend from law school, Ed Donovan, came by to watch me in trial. Afterward he came up to me and said, “Joe, I’m shocked by how you did in court today.” I knew I’d had a good day in court, so I was pleased to hear that I’d impressed him. I asked him what he liked best, and he made a very interesting comment. “Look, you were technically brilliant, but you were boring as hell.” he told me. “Stiff. I didn’t even recognize you. I really had no idea you were that formal; you were almost pompous. What happened to the guy I know? That we all know? Why weren’t you telling any funny bar stories when you had the chance? Why are you wasting your time trying to impress a judge you don’t like anyway instead of the jury? It’s all about the jury, you idiot!” Ed was right. I thought a lawyer was supposed to act a certain way, hold themselves like a pallbearer, speak like we all did in law school, and all I was doing was alienating the jury. Only when I dropped the whole legal façade did I become really effective as a trial lawyer. It was going back to where I started, back to the egg.
26 — The Advocate Magazine
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I’d like to share with you some thoughts on what has been inspiring to me; what has helped shape me as a trial lawyer.
1. Be on a mission
It is important to know why you fight so hard on a contingency fee for people who often aren’t particularly grateful, or on a case that doesn’t seem to be a big deal in the grand scheme of things. You need to have a center for the work you do, a reason to believe, to know why this is worth fighting for. For me, it is recognizing that most people will never know a lawyer aside from you: the lawyer willing to take up the fight on a contingency fee. Bruce Broillet once told me and so many others that what makes us special is that we are the only group in America who have access to power and money, a doctorate level education and are willing to work for free until the goal is achieved. I realized when I was working for the greatest lawyers Los Angeles – Bruce Broillet, Browne Greene, Charlie O’Reilly, Gary Paul, Brian Panish, and the other stars at the firm I clerked for decades ago – that we had to have a passion for what we did or we’d never make it.
The work is hard. Most lawyers working on a contingency fee forego other opportunities to make more money because what we do offers something other legal practices cannot: The reward of knowing you helped people, righted a wrong, and perhaps made the world a bit safer. What we do can be so daunting, as we stand there time and again, David against Goliath. Taking on State Farm. Or City Hall. Or a big police department. General Motors. What gives us the energy to do this? Knowing that by being a plaintiff attorney we can make a good living helping people. As Paul McCartney sings, “What’s wrong with that?” Being on a mission means having an edge; an attitude that you’re not going to let some corporation, law firm, police department, insurance company or whatever just roll over you. You got a chip on your shoulder; we all do. Being on a mission is being driven to do the extra ten percent that makes the difference between “maybe winning” and “kicking ass.” It really is required to consistently get great results.
2. Stay humble
Always remember you really don’t know it all. And everyone loses. Browne
See Egg, Page 28
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Greene is the first to tell a young lawyer smarting from a defeat that he’s lost more trials than most lawyers will ever do. And of course Browne has won way, way more. But the tough and great lawyers take on not just lucrative cases, but also righteous fights. And oftentimes in those cases you might end up losing. Maybe it’s your fault and you can learn from that, but maybe it was that the client was not honest, or not as injured as they claimed, or some other factors. You should always be confident, but never act like you’re better than other people – you’re probably not. We are trial lawyers for the common people, for the rich too, and the poor too, but we are in the end lawyers for everyone. To work best for them, and to be the best voice on their behalf, get off your high horse and stay humble.
3. Learn from giants
There’s so much to know on the road to competency. We come out of law school filled with great ideas and energy, ready to tackle the world, but when it comes to the real world practice, we’re simply unprepared by a law school education. Step by step we must learn. One thing I figured out quickly was to learn from the giants. As a law student, I was surrounded by them because I took a job with a leading plaintiff ’s firm. I went further and made invaluable connections through two trial lawyer associations, CAOC and CAALA. The best way to learn how to be great is to watch the great ones and learn from them. Stop in and watch a great lawyer in trial. It’s hard to do. For those who hold a job, they probably never get to see anyone other than their boss. For the solo practitioner, it is hard to get away from the office. But there’s nothing more valuable than actually watching lawyers try cases. Trial skills aside, it is just as valuable to learn to write well, to be skilled at law and motion, to draft great lawsuits and discovery, to write persuasive demand letters and briefs. 28 — The Advocate Magazine
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See Egg, Page 30
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4. Demonstrate a trial lawyer’s work ethic
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I saw how long and hard Brian Panish worked in the 1980s and I was blown away. Not only was he brilliant, but he worked so hard! I went to work for a guy who always was at work by 7:30 a.m., Garo Mardirossian. When we were in trial, Garo pretty much worked until 3 a.m. every day and then he’d get up to start the next day at 3:01 a.m. (or so it seemed). The founder of my firm, Johnnie Cochran, once told stories of how trial lawyers needed to work 20-hour days if they wanted to win. Me, I’m not wired to do that. I must sleep. I am a legendary sleeper. But I will say that when I am in trial, sleep comes second. Being prepared comes first. “Preparation, preparation, preparation,” Johnnie used to say. Carl Douglas, Johnnie’s former law partner, knows that well. Carl and I were both in trial once downtown. I found him on the ninth floor one day at about 7:30 a.m. His head was on the table. He was sleeping. Exhausted. I woke him up. He’s a hero of mine, and I knew he needed that help. We all do it for each other, we trial lawyers. We work all the time, it seems. Got to. Only the mediocre don’t. There’s no halfway possible.
Ask any trial lawyer, or those who work with him or her, if there’s any shortcut. You can get more efficient, sure. But there’s never enough time to craft the best cross-examination, to prepare the witness fully, to draft the tightest jury instructions or trial briefs. And when you rely on those not similarly driven, they can slow you down many times because they whine, they want the accolades but shirk from the work, they complain about what they’re not getting paid, whatever. Trial lawyers know that the work ethic required to do great things requires getting what you can from others, but relying pretty much on yourself. It is a shared quality you’ll find across Los Angeles, throughout our state, across America.
5. Trial: Realize “It ain’t about the money”
The money is made settling cases after effective case selection and good litigation and working up the case, managing the medical care, investigating liability, gathering evidence. But trial work is not something you do for the money, as a primary goal, though no doubt it is the only place the “big money” happens. Trial work takes so much time, costs so much, and takes you away from your other work. Trials are often lost, so they can be devastating to a law practice just as quickly as they can be lucrative.
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Cases themselves can be tough economic decisions. You must make sure you work on cases with enough financial upsides to meet your overhead, to achieve the financial needs you and those relying upon you have established. That has a lot to do with case selection also. But in the end, what I do is not about the money. I always say, sure, it’s in the top five, but it has never been number one. I do what I do because I find it very rewarding on many levels. I help people. I love to do the things we do as plaintiff lawyers. I love challenges and work hard on case selection, research, understanding medical issues and liability issues. Money is very important, yes, but in the end, do what you do because you love it.
6. Have a support system
I have been blessed to always have great support, and you need it to fight against those we take on every day. I have a wonderful support system that never fails me: My God, my wife and my children. I understand my support group is not essential to every trial lawyer (I know some kick-ass trial lawyers who have no wife, no kids and think God is an invention to keep the huddled masses down) but for me it has always been the rock that keeps me up. Beyond that, I have had the enduring support of partners in my practice who stood by me when I lost a trial or suffered some other setback, and there is nothing like having that group to rely upon. Again, I’ve known great lawyers who would never have a partner, but I have enjoyed the support from working in a team setting. I have had great friends to pick me up when I was down, or to knock me down a peg or two when I needed it. The people in our offices and in our lives have a critical role to play in our legal lives. They are our best focus groups, our most important confidantes; we do better when others hold us up and help fill in the painting we sketch out.
7. Get a great staff
Without a great staff, most lawyers are not capable of doing great things. The law is very time consuming.
Responding to discovery or organizing the evidence, subpoenaing records, responding to correspondence, on and on. There’s so much to do, and only so many hours in a day. I know that I remember everyone who ever helped me as a lawyer. Without them I’d be nowhere. Choose the people you rely upon wisely. And treat them well. They will leave, almost everyone will move on at some point, but just know that good businesses always have low turnover, and for good reason. You will do better work if you work with quality people you truly care about, whom you reward when you can, who share in the battle.
8. Have the right tools
You can’t take on fights unless you’re armed for battle. I realized how expensive this practice can be first-hand when I worked with Garo Mardirossian. Garo was wise enough to know that if you wanted to show a vehicle was defective, you needed to literally build yourself an exemplar vehicle (a “buck”) and make sure it demonstrated your theory. I saw Garo work with evidence artisans to create those “bucks” or to re-create what a road looked like. If you need the best expert and that expert cost $100,000, then you need to make a decision: Either keep the case and spend the money or refer it out. This is what lawyers must decide every day. Do I have the time and money to take all the depositions required, to read and analyze the documents, to hire the needed experts? If you don’t have the tools and the money, then hand it off or bring in more hands. Don’t go to a gunfight with a knife.
9. Constantly renew yourself
One of the best parts of what I do for a living is that I get to learn new things all the time: new legal theories, new medical issues. New approaches to a type of case I never saw before. New arguments. I try to stick to doing what I know how to do well, but so often, it comes down to fighting a good fight and the type of fight always seems to be a new one, requiring deep thought,
brainstorming with other lawyers and educating myself anew. I’ve met so many people who learned all they need to know to do their jobs while in their 20s, and they’re on auto pilot thereafter.
10. Appreciate God’s gifts
If you’re fighting for someone who really needs you, and the task is a righteous one, the best thing you can do to accomplish the goal of justice is to be yourself. The list of lawyers doing great things in the courts is always changing, and new lawyers are always being added to the list. If you listen to those lawyers about why they did what they did in their trial victories, you’ll note that most of the time they let their stuffy lawyer persona go away and were “themselves” with the jury, trusting the jurors and letting their personality shine through.
11. Be decisive
Aside from that, inner strength is another part of the equation. You need strength to say “no” to many cases. You need strength to accept your weakness in evidence and settle. We are shot callers by nature. And of course many shots will be wrong. But most will be right. And you need to know that waffling gets you nowhere. Being decisive is required of any leader, whether it comes to spending money initially on a case or later turning down an offer and going to trial. Decisive can also mean realizing that you were wrong about a case and dumping it – despite working on it for a year and spending a fortune. Rely on yourself and your inner voice when you call the shots. Be thoughtful, but once you decide, move on. It’s the nature of the business. Don’t worry about being wrong sometimes. Teddy Roosevelt wrote, “it’s not the critic that counts anyways. It’s the man (and woman) in the arena.” Joe Barrett is a partner with The Cochran Firm specializing in traumatic brain injury, catastrophic injury and wrongful death cases arising from product liability, civil rights, negligence and governmental liability. He has been a CAALA member for over 20 years and currently serves as first vice president. FEBRUARY 2013
The Advocate Magazine — 31
Nicholas C. Rowley
l a t Bruonesty h Telling the human story, from voir dire through opening statement
Every lawyer has the power to get justice in a courtroom. In my experience, with my wins and my losses, I know that if we can connect with the human story and share it with a group of jurors who we have connected with, the power we yield is hard to defeat. In your own case, once you learn the human story and are able to feel it, you are ready to win by sharing it. The only way you can become a better trial lawyer is to try more cases but most importantly become better at being a human being and understanding yourself. I have been fortunate enough to have tried many cases. I have learned that as good as I might sound and as much courage as I might have, I am at risk of losing if I am not connected with my client and jurors as human beings who I care about. A theme I live by in trial is “brutal honesty.” If we cannot be brutally honest with ourselves, then how can we begin to connect with our clients and our jury? The answer is, we can’t. And if you’re not brutally honest about your case, its ups and downs, good, bad and ugly, then we cannot ask jurors to do what we need them to.
The human story
The story begins with you. You are the human who loves, feels, hurts, cares, hates, betrays, fears, regrets and who has that so very important ego to protect. Human feelings are the basis of every juror’s decision. Once we care and
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connect with our clients, only then do we have the right to ask jurors to do the same. To become our client’s voice and to be able to tell their story we should always start with the most important resources we have, which are the humans that are most accessible to us; our clients, their families and friends. Spend time with your clients in their homes. Look at photo albums. Spend time at the scene of the injury with your client if you can. Go to medical appointments with them in regular clothes. Understand the inconvenience of everything they are going through. Our clients are the basis of our cases. Without them, there would be no case. Written discovery and opposing counsel do not matter as much as people think. They are just hurdles, bumps in the road we have to navigate over and around. If we get too wrapped up in written trench warfare litigation, fear, and believing inaccurate medical records and police reports, we lose track of the human stories that make a case important. I want to give you an example of what I am talking about from the Sofia Blunt case. This was a tragedy of a medical malpractice case that my partners Robert Ounjian, Rod Ritner and I tried together in San Luis Obispo. In Sofia’s case, I asked her parents to tell me as much about Sofia as they could. To tell me what Sofia liked and
disliked. Who Sofia was. What makes her happy? What would make her smile? What her daily routine is. I did this by asking her parents to speak to me as though they were Sofia. But before I did this, I first had to open up and tell Sofia’s parents about myself. I spent a lot of time with the Blunt family in their home. My own children got to know the Blunt family and Sofia and her sister Charlotte. We became family friends. When I stood in court for them I was standing for people I loved and cared about. I didn’t need notes and was not confined by what the medical records said (the medical records told a false story anyhow). So start learning the human stories by spending time with the humans in your case and not the medical records and depositions. There is always more to a story than what is written on a piece of paper. You may have a great case with great experts, but if the foundation of your case relies on the “cold hard facts,” your human story will be lost and you risk not having jurors connect and value the case as they otherwise would. If you can say that you care about your client and understand what they have gone through, you have done the first part of your job. Jurors will see when you are sincere about your story and with that you have credibility. A good lay witness that the jury connects with can beat a strong defense
See Human, Page 34
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Human — continued from Page 32
expert any day of the week. I try to connect with and tell the story at trial through a few good lay witnesses and I have them tell the jurors how many hours, days, weeks, months, years that they have personally
witnessed the damages of the human being I am representing. I then contrast that to the defense expert who spent 20 minutes with my client and does not even remember what he or she looks like.
Mini opening statement
California law provides for miniopening statements. The current version of Code of Civil Procedure section 222.5 calls for the parties to present mini-opening statements prior to voir dire upon request, “The trial judge should allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process.” You should try to get permission to get a mini-opening statement for every trial. Judges are becoming more receptive to the idea because it can speed up the process of jury selection. By summarizing your case in three to five minutes to an open jury pool, you can let them know what your case is about and find out who can be fair and impartial and expedite voir dire.
Voir dire
Voir dire is the most important part of the trial because it is the beginning of relationships. The primary purpose of voir dire is to establish a human connection in order to build a team of openminded, caring individuals who care about justice and who will work hard to see that justice is served. Many great trial lawyers have said it and I believe it; you can win your case with voir dire. Starting your voir dire is like approaching a stranger you want to get to know. Even though there is a smile and maybe an opening line, there is skepticism, caution and the aura of nervousness. Remember, at the beginning of voir dire, we have no control over jurors and more importantly, we have no credibility. Credibility is something that must be earned and it must be done early. First, start by accepting potential jurors as they are. Do not reject anyone. Generally, we as lawyers start stereotyping, objectifying and rejecting jurors immediately because we are afraid. You cannot reject a juror and then expect them to like you and connect with you. Humans do not fit into boxes, so don’t label and stereotype. Try to be open and honest with the jury and they will reciprocate. You can start this by being inclusive. Try to build a team rather than excluding people, or
34 — The Advocate Magazine
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See Human, Page 36
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Human — continued from Page 34
kicking out people purely on pre-judged notions. Be confident in yourself and your case and know that it does not matter what you are talking about so long as you are sincere and you connect. As you are making the connection, now would be a good time to bring up the money issue. It is helpful to be honest with jurors right from the beginning, so why not tell them what amount of money you are asking for? Let jurors know what you are asking for after you have built some relationship. Let them know what your client is worth. Being upfront about it will save you a lot of time and energy. Jurors are the most important part of our case, so we must truly listen when they talk. As lawyers we are not taught to listen; we are taught to talk, to be in control, to get our message out there. Many jurors do not want to be on jury duty, so do not
waste their time. Jury selection is the time when you have to force yourself to just listen. I typically start voir dire by asking what “brutal honesty” means, and it has been an effective method. Use your eyes and your hands to invite the jurors to tell you what they are thinking. Let the silence become almost uncomfortable at times until they respond. Listen to their responses and watch them respond. Feel their words resonate inside of you. Allow yourself care about what they are saying. Slow down and do not interrupt with a question. Have a conversation with them, not a question and answer session. Next, truly thank them for their time, their response and overall participation in the justice system because frankly without them, there can be no justice. Then, get the rhythm going by inviting other jurors to respond by saying
something as simple as, “Mr. Johnson, how about that?” Some other short cues are: • “Please tell me about that.” • “Please say more.” • “Would somebody please talk to me?” • “Who else feels this way?” One particular way to show you are listening is reversing roles with the jurors to feel the same human emotions. So, if you’re not listening, you cannot feel anything that is going on. If you are thinking of your next question before a juror finishes responding to you, you are not listening, and the jurors will know it and not appreciate your sincerity when you say thank you.
Non-economic damages
As I write this, I am trying a completely non-economic damages case in
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Orange County with Daniel Ambrose from Michigan and Tiffany Chung of my office as co-counsel. Voir dire took two full days and, together, we faced what I believed to be the most conservative jury panel I have ever experienced. Approximately 75 percent of our first panel of jurors were disqualified for cause because they believed in a philosophy of “no money for pain and suffering.” To deal with the issue of “money for pain and suffering,” we did a lot of brainstorming and came up with “What is special about people?” as our theme because our case involves only non-economic damages, i.e., a pain and suffering claim, we needed jurors to have in their minds what it is like to have a part of a person’s personality destroyed or changed as a result of injury and the importance and value of
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the special things that make us who we are as human beings. Jurors responded very well and were able to open up to us and provide some characteristics we could relate to our plaintiff. Having the jurors think about their own lives and listening to them reflect was a great lesson for us to address our non-economic damages case. It was tough at first, but ended up working out well and here is the story about the voir dire in the trial (win or lose) we are currently in: In our case, the only question for the jury will be causation and non-economic damages. The injury is one of a soft-tissue shoulder injury and a mild traumatic brain injury. Liability was admitted the first day of trial. The collision is constantly referred to as “a low speed car acci-
dent.” We did have medical bills of $8,000 but chose not to ask for them because our client has Kaiser. At the scene, the client said she was fine and refused treatment and an ambulance. The car was drivable. She went home, started having headaches, nausea, vomiting, blurred vision, and later that day went to Kaiser urgent care where a “possible concussion” was diagnosed. A CT scan was ordered which was normal and she was sent home, never diagnosed with a brain injury until 700+ days later. I am asking for many millions of dollars for her past and future non-economic damages because I believe that she has a lifelong mild traumatic brain injury, which was misdiagnosed and not treated as is often the case with brain injury victims. In opening statement the defense lawyer for Mercury Insurance told the jurors he
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would be asking them to come back with a zero verdict and that “any amount over $15,000 would be a travesty”. As I usually do, I brought up the money issue early on in voir dire. I want to be brutally honest with jury. This time, non-economic damages caused a lot of negative responses from the prospective jurors. Then Dan Ambrose suggested that we hold off on talking about the money and to first talk to the jurors about how valuable our client’s losses were by talking about the jurors’ own personal losses. I didn’t want to do this. So, I did it the way I usually do. We had a very hostile panel of jurors. Later we called up an additional panel of jurors because many were excused for bias and prejudice against large money verdicts. We decided to take a different approach with this new group and it worked out beautifully. We figured a way to talk to the jurors about their own “non-economic assets” and do it in a way that did not walk the line of the “Golden Rule” (asking jurors to pay the dollar amount for damages they would personally want if a similar injury happened to them). Here is what Dan, Tiffany, and I figured out and the approach I took: Q: This is a case where the only issue for you to decide is non-economic damages. No medical bills, my client has Kaiser, so her medical bills are covered. No lost earnings because she is a stay at home wife and mother, a homemaker. The only thing we are here to do is have you put a value on non-economic damages, her losses as a human being; pain, suffering, loss of enjoyment of life, and other categories that the law provides for. A lot of people from our earlier group of jurors said they personally didn’t believe in money for pain and suffering and could not be fair and impartial jurors because that is the type of case this is. I need to ask you if any of you feel the same way. Do any of you believe, even a little, that a person should not come to court for money if the case is only about pain and suffering damages? A few jurors expressed some concerns but it was not at all as adversely against money for pain and suffering as the prior venire.
Q: If I were going to ask for over $20 million, would you want me to be up front with you and tell you now or wait until the case is over? A: I would want you to tell me now. Q: Why? A: So I can think of that in my mind and see if the case is worth that and listen very carefully. Q: You would rather me be up front and brutally honest with you, rather than surprise you? A: Absolutely. Here is how my questioning continued, and how I got into the idea of noneconomic damages: Q: “We are all human beings with special things about us, things that belong to us as humans that make us who we are, our own personal “non-economic assets.” Our personal “non-economic assets” are what make us “special” to ourselves and “special” to the people we love. Would somebody please tell us what is “special” about them: A: I am a hard worker, I love spending time with my kids, I provide for my family, I have a good sense of humor, and I am a good listener. The type of father I am is special. I am very kind to my children. I don’t raise my voice, I don’t fight with my wife, the people who work for me at my company say I am not like any other boss, and I don’t feel like I am a boss, I am just part of the team. I treat people equally and fairly. Q: Have you ever imagined a situation or experienced a time when those things which make you special were taken away from you? A: No. Q: Could you imagine that ever happening? A: I hope it doesn’t happen. Q: The job I am going to ask you to do in this case, your only job, will be to look at what is special about Marilyn Hinman, what her “non-economic assets” are, how her traumatic brain injury has changed her as a person, and put a dollar value on that over a period of 27.6 years. Does it turn you off in any way that I am going to ask you to do that job and equate money to the
loss of special things about a person and changes to who Mrs. Hinman is? A: No, that is your job. Q: Will you leave room in your mind for the possibility that it is not cheap, that over 27.6 years the evidence might show it is a lot of money and maybe I am not unreasonable asking for a lot of money? A: It is certainly not cheap; I will keep an open mind. Asking jurors to share what made each juror “special” went on and on and it was beautiful. There was warmth and love in the courtroom and the jurors who were remaining in the box from the first panel were nodding their heads, smiling and making eye contact with me and seeing the light to why a case for non-economic damages is important and valuable. For those of you who are under a time crunch and are only allotted 15 minutes or no time for voir dire at all, your job is still to listen, feel, reverse roles, and connect on a human level every chance you get. Remember, connection is your goal. Even when your opponent is doing voir dire, your job is to connect and validate. If you win in voir dire through being brutally honest, through caring about your client and connecting with the jurors you are on your way to winning. If you keep that connection with them and don’t betray their trust during the trial, then what you believe about the case will be shared by them in the end and validated by the verdict.
Opening statement
After voir dire, opening statements are the time to show the jury that you have the credibility they started to believe in. Be calm and collected. Now is not the time to oversell your story. Opening statement is not a time to start out with a sad sob story about your client’s injuries and life in shambles. At this point the jurors are not quite involved enough. This is the prime time to remind the jury about the importance of the case in the community before they can care about your client. Keep in mind the full range of intelligence and ignorance that will be sitting on your jury. The jurors will have a full range of abilities to understand the FEBRUARY 2013
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evidence you provide. At times, some jurors will be sitting in darkness, while others are enlightened, like in any classroom. Start out slow, with the undisputed facts, then weave in themes of the case and expose the frivolous defenses. It is important that you understand what your story is and what the defense will be saying about your client. Again, be brutally honest with the jury and tell them your concerns. Tell them what you plan to prove and take the main defense themes, address them, and explain how they will be wrong at the end of the day. This way, by the time the defense lawyer gets up, there will be nothing new to be said and his opening will be boring and ineffective. Mention their experts’ incredible abilities to distort facts and obscure the truth. Explain what their experts will say and lie about. And explain why they will lie. Then teach your jurors how to expose the lies and how to avoid being tricked by the bad defense attorneys. Let the silence and emotion fill the room as you tell the defense story. Silence is more powerful than words. Silence will allow the listener to focus their attention and open their feelings and emotions to what you are saying. Keep your opening unpredictable. Whenever I can, I do what I call a “Pulp Fiction Opening” where I start with the end and end with the beginning and mix it up. I keep the jurors on their toes because doing it in chronological order
A theme for every case is betrayal. This is what is taught at Gerry Spence’s Trial Lawyers College. It is a powerful theme that everyone in that courtroom has felt in their lives. Show the jury the betrayal, bring it into the courtroom, and place it on the defense table. Whether it is the negligence and betraying the trust of other drivers on the road and failing to accept accountability or betraying a patient’s trust and letting cancer go undiagnosed for nine months while it grows in the patient’s body, jurors can connect with betrayal because they have all been betrayed. Explain to jurors how we are here because the defense is blinded to what was done to your client and they want to move forward with the stamp of approval from the community saying that what they did was okay and acceptable. Never use a lectern. It is a barrier between you and the jury. Use every inch of space in the courtroom and even your own body as a prop to show the jury the story. Bring the courtroom to life with pictures and scenes by using vivid descriptions and details. Photographs, props and
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audio-visuals during opening and trial are very helpful and the jurors love them. Visual aids linger in jurors’ minds, and when you combine them with words and themes, they become implanted and grow deep roots. Talk about the money
Be honest and upfront about the issue of money damages during opening statements. Own the dollar amount you are asking for. Don’t hide from it. You’ve brought it up in voir dire and hopefully have ensured that jurors are not prejudiced against large money verdicts, in particular for pain and suffering. Always end your opening statement by thanking the jury and telling them how important and powerful they are, that they are the most important people in that courtroom. Inform them that you will value their time and try to make the trial go quickly. Show them you care and appreciate them by asking if they have questions, or are uncomfortable about something. These are the beginnings of every trial, so work on your skills. Understanding and beginning with these skills and techniques will lead you to build great relationships with your clients and better knowledge about your cases. These techniques can be used, changed and applied at your own pace. You will become better by working on your skills and building on your own experiences, so try as many good cases as you can. Nicholas C. Rowley is a partner of the law firm of Carpenter, Zuckerman & Rowley. He has served as an instructor at Gerry Spence’s Trial Lawyers College and delivered speeches nationwide. He entered practice in 2001 after graduating from the University of La Verne College of Law and received his bachelor’s degree from Park University. Rowley has achieved numerous seven- and eight-figure verdicts and was a finalist for the CAALA “Trial Lawyer of the Year” award several times. In 2009, he received the Consumer Attorneys of San Diego’s “Outstanding Trial Lawyer” award.
Thomas Steven Feher
Minor impacts, major injuries: Winning the credibility battle in trial
A young trial lawyer discusses ways to prove a client’s credibility in this challenging arena
For many personal-injury trial lawyers, a significant portion of their cases consists of motor vehicle collisions that can be considered “minor” or “moderate” impacts. Despite the nature of the impact, many people suffer injuries that go beyond the typical neck or back strain or sprain with symptoms that persist for months to years. The medical bills for treatment associated with these injuries can be costly and ongoing. As a result, the insurance industry began a campaign to thwart plaintiffs’ efforts to obtain a meaningful and just recovery by hiring experts in biomechanics and accident reconstruction. These experts along with defense medical experts are paid to testify that minor impacts cannot cause major injuries. As a young trial lawyer, I have had the opportunity to try some of these cases both as a first and second chair and found them to be particularly challenging because of the simple question that arises in jurors’ minds: “How could someone get seriously hurt in such a small impact? They must be faking their injuries.” Jurors are constantly comparing the incident to the injury, but rarely is the damage to a car commensurate with the damage to one’s anatomy. The classic example is the low-speed, rear-end impact where the driver or passenger suffers a disc herniation in their cervical or lumbar spine, requiring surgical intervention to alleviate painful and debilitating symptoms. The defense will generally stipulate to liability, then dispute causation, the nature and extent of the injuries, and the “high” cost of treatment. The defense’s contention in these cases is virtually the same in every instance: the impact was minor and it would be impossible for the plaintiff to suffer anything more than a sprain or strain. The implication is that the plaintiff is a dishonest person, taking advantage of an accident to make money she
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does not deserve. Thus, the battle that must be won in court is one of credibility: is your client really hurt or did she conspire with her lawyer, doctors, friends, family, and undergo countless procedures that were medically unnecessary just to win the lotto in court?
The client
Winning the credibility battle starts with your client. All too often we hear that a client can make or break your case. We hear of trial lawyers who do a marvelous job in trial, yet still lose. The feedback from jurors generally boils down to whether they found your client credible and likable. For some of us, we do not have the opportunity to pick and choose our clients and must make the best of the situation. So how do you make the best of a bad or a good client? Get to know your clients earlier rather than later and find out as much as possible about them. Get in contact with family members, friends, coworkers, bosses and anyone else who may know your client. Once trial starts, these are the people that you will need to testify about your clients’ injuries, their pain and suffering, and their veracity. Friends, family members, coworkers, and even treating doctors can make a seemingly unsavory plaintiff palatable for jurors. I live by a simple rule when it comes to my clients: make a human connection. If I am unable to connect with my client, how is a jury supposed to connect, root for and award monetary damages for their harms and losses? This is not a spiritual or philosophical point; rather, it is a simple exercise to find the common ground that binds us. It can be as simple as liking the same sports team as your client or as deep and painful as losing a loved one. When preparing for trial, I always like to spend time with my client. I go
out to dinner with them, visit them at their home and try to be around them in a natural setting. A client’s home is one of the most revealing aspects of their life; it is a powerful place filled with inspiration and transparency. You can see, smell, touch and experience their life. If you want to connect with your client, go to their home and be with them. Granted, you may have a situation that does not lend itself to this type of intimacy, but that should give you pause about your client and whether you should even go to trial. In trial, it is imperative that you transparently communicate how a “minor impact” left your client injured and how those injuries have affected her life as well those around her. It is not enough to say, “Here are the medical bills that need to be paid and you should give my client some money for pain and suffering because it is required under the law.” If you feel what it was like for your client to live with her injuries and go through the litigation process, then jurors will likely feel it as well. The everyday struggles of routine activities like getting up in the morning, getting dressed, cleaning the house, driving to work, playing with one’s kids to the daily interruptions in your client’s life from years of medical treatment need to resonate with a jury. By spending time with your client and getting to know the people around them, you create the context for which a jury can connect with your client. This is not to suggest that you need to be your client’s best friend or become so emotionally invested that you cannot see the forest from the tress; just make a connection. With minor impact cases your client’s veracity is constantly put into question by the defense. They are playing on the notion that a person cannot suffer major injuries when involved in a
See Credibility, Page 46
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Credibility — continued from Page 44
minor or moderate impact. It is vital that your client be absolutely truthful and comprehensive about all her harms and losses. However, she should not exaggerate her claims; otherwise, she will instantly lose credibility with the jurors and you will have an uphill battle trying to earn back that credibility. Some of us are familiar with those infamous sub rosa videotapes. Your client testifies in deposition and trial that her back pain is eight out of ten and she cannot lift her little baby anymore. Next thing you know, right after defense counsel finishes his cross examination of your client, out comes the damaging sub rosa tape with your client moving furniture with one hand and holding a cell phone in the other. Two things can save you from this last minute nightmare: (1) do not let your client exaggerate their claims in any testimony or discovery; (2) warn your client that once the discovery cutoff is complete that defense counsel will likely be conducting surveillance on them from that point up until closing argument. If they have pain, but continue to live their life, then just express that truth. It is much more credible for a client to say they are in pain but continue to live their life while managing their pain with medication, exercises and treatment. If you start to hear your client exaggerate their claims in a deposition, take a break immediately and have your client correct their testimony after the break – it is better to do this during the deposition than after with an errata sheet because defense counsel can point out the changed answer in trial and that will hurt your client’s credibility.
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Each lay witness’s testimony is geared towards undermining the defense’s narrative. Either your client is lying or telling the truth. The more lay witnesses that can testify as to the veracity of the plaintiff and her injuries, the more credible your plaintiff becomes in the eyes of the jury and the more the defense’s contentions start to look absurd. When looking for “lay” witnesses, you want to search for people who can
testify to the plaintiff ’s reputation for honesty, specific acts or stories about her honesty, charitable deeds, titles or positions of trust that the she has held, whether she is a hard worker, her personality and character traits before and after the accident, her life activities before and after the accident, and what events she has missed due to her injuries. Normally, you would not be able to bring in countless lay witnesses because it would be cumulative. However, when the defense attacks your client’s credibility, they open the door for you to bring as much testimony as possible to counter the defense’s character assassination of your client. Defense counsel may object on the grounds that such testimony is cumulative and you must be prepared to address that issue head-on with the judge. One way of alerting the judge that the defense is calling your client a liar is by submitting a trial brief at the final status conference. This is good practice even if the judge on your case does not make it a requirement.
Defense experts
Preparation for expert cross examinations in trial begins before you take their depositions. You should adequately research the expert’s background. Speak with other attorneys and make an effort to locate past deposition or trial transcripts. It is imperative that you ask detailed questions about the expert’s income generated from medical legal work, the percentage of work they do for the defense versus plaintiff, whether they socialize with the defense counsel, the number of times they have been retained by defense counsel or defense counsel’s firm, whether they have given all their opinions, and if they intend on doing any more work on the case. Virtually all experts will waver on some of the above questions. Be prepared to push the expert until you get the answer. Some experts work exclusively for the defense and the majority, if not all, of their income is derived from expert work. If they stopped rendering favorable opinions for the defense they would
The primary role of the accident reconstructionist is to determine the speeds of the vehicles and the forces involved in the accident. When the defense hires these experts, their goal is to ensure that the expert can provide calculations of forces that would not be sufficient to cause your client’s injuries. These experts rely on several variables and assumptions when calculating forces, however, not all experts agree on which variables to incorporate in their calculations. These experts formulate their opinions from a select set of data, generally limited to photos of damage to the vehicles, repair estimates, and crush data from similar vehicles. During deposition, determine if the expert physically examined the vehicle, whether the crush data they used came from identical or dissimilar vehicles, whether they considered the condition of the roadway as well as the condition of the vehicle’s tires and bumper. The goal is to demonstrate that the expert’s calculations are not reliable given the information they used.
reconstructionist and biomechanist. There is some overlap between the two fields. While the accident reconstructionist determines the speed of the vehicles and forces involved in the collision, the biomechanist opines on how those forces act upon one’s body. Biomechanical experts often testify beyond the scope of their expertise. They are not medical doctors and cannot opine as to whether your client actually suffered injuries in the collision. These experts are limited to testimony that discusses the likelihood of injury as it relates to the forces involved. If a biomechanical expert testifies in deposition that your client could not have been injured in the collision, you must make a motion in limine to exclude that opinion at trial as improper because it is beyond the scope of their expertise. These experts rely on studies that ignore real-world conditions. The studies involving collision forces that use both volunteer subjects and anatomical dummies occur in a controlled environment. Seat backs are upright, head rests are in place and, in the case of live subjects, they are prepared for impact. In the real world, there are several variables in human tolerance to avoid or sustain injuries in low speed impacts, including age, sex, general health conditions, physical size and skeletal development. Yet, no formula or calculation expresses these variables in absolute, constant terms, and they usually are ignored in low-speed impacts. During cross examination, it is generally best to steer clear from getting into a battle with the expert on the science unless you have an authoritative source from which to challenge the expert’s opinions. Remember, even if you are on point, the jury sees an expert versus a lawyer, and the expert will generally win that battle. Stick to demonstrating that the expert relied on incongruous facts and is unable to opine on whether your client was in fact injured.
Generally, in minor impact cases one expert is designated as both the accident
Generally, the defense will hire a medical expert doctor to examine your
be out of a job. This message has to be crystal clear for a jury. An expert’s opinions at trial are limited to those they rendered at deposition. This is why you should always ask an expert at the end of a deposition if they have given you all their opinions. Prior to the deposition, the defense experts must produce all materials they relied on in formulating their opinions. If they do not, you have an opportunity to bring a motion to exclude portions of the expert’s opinions. When taking the expert’s deposition, you should videotape the deposition. This will give you the option of playing clips of the expert’s deposition testimony during trial. You may want to play a clip during opening or use it to impeach the expert while he is on the stand. While hiring a videographer can be expensive, counsel can set up their own camcorder during the deposition.
The accident reconstructionist
The biomechanical engineer
The defense’s medical expert
FEBRUARY 2013
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Credibility — continued from Previous Page
client. It is critical that your client not exaggerate her claims at the medical examination because it will be noted in the expert’s report. Generally, the defense doctor will audio record the examination and you should too! A good practice is to send a nurse or witness to the examination so that they can observe and record what the expert doctor does during the examination and make sure the expert does not ask any inappropriate questions. The defense’s medical examination is an opportunity for the defense to craft their narrative that your client is not being completely truthful. They will take a medical history of your client and then conduct an examination of the areas where your client is injured. Then the expert will generate a report that is usu-
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ally laced with innuendo and speculation about your client’s condition. It is imperative that you pick apart the expert’s medical report at deposition and force them to adopt a position: either your client is lying and her treating doctors committed malpractice by providing unnecessary treatment or your client is telling the truth and the defense’s contentions are not credible. If the doctor says your client is telling the truth, then you need to follow up on why he disagrees with the nature and extent of your client’s injuries. Did the doctors get it wrong? Is she experiencing the pain, but it happens to be psychological? If the doctor says your client is lying, then you need to go over everything that leads the doctor to make that claim. The defense doctor probably only reviewed medical records and conducted an examination on the plaintiff. They did not speak to any of the plaintiff ’s treating doctors, nor did they speak to any of the plaintiff ’s friends, coworkers or family members. This is where the lay witnesses help undermine the defense medical expert’s narrative that your client is faking or lying.
The pre-existing condition
The defense medical expert may say that your client’s condition was pre-existing. In other words, your client’s injuries were not caused by the accident. Your client may have had a pre-existing condition that was asymptomatic prior to the
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accident. As people get older, naturally, there will be some anatomical degeneration; however, it does mean these people are in pain or unable to complete their daily activities. A minor auto accident can make an asymptomatic, pre-existing condition symptomatic. There are specific jury instructions that address this issue. (See, Judicial Council of California Civil Jury instructions 3927 “Aggravation of a pre-existing condition or disability” and 3928 “Unusually susceptible plaintiff.”) You should use lay witnesses to testify that despite your client’s pre-existing condition, they were pain-free and had no trouble completing their daily activities. If your client regularly golfed with his friends every week, but then once the accident happened, he has not golfed in over a year, this would be key testimony undermining the defense’s contention that the accident did not cause any injuries to your client. It would also demonstrate that your client was asymptomatic prior to the accident. Similarly, you can use lay witnesses to undermine the defense medical expert’s testimony that your client is lying or exaggerating. Thomas Steven Feher is an associate trial attorney at The Simon Law Group, LLP. He received his J.D. and Certificate in SM Dispute Resolution from Pepperdine. Prior to law school, he obtained a Bachelor of Arts in psychology, political science, and philosophy from the University of California, Santa Cruz.
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Embrace voir dire
Every question you ask should seek information
Think of voir dire as your being one of the guests at a dinner party. You are mingling, talking and getting to know a group of strangers. You are simply engaging with them, learning as much as you can about those other guests, being nice, appropriate, always in a warm way. No arrogance, no condescension – and with a smile. The smile is contagious, whether at a dinner party or voir dire. During voir dire: first do the “warmup” act, and afterwards cover the information that you need. Every question asked should seek information. Ask very open-ended questions. Allow the jurors to talk about themselves. People enjoy talking about themselves. Get them comfortably engaged first with conversation and information, and then later follow up with questions regarding tort reform/deselection and burden of proof/“more likely than not,” etc. During voir dire, pause for their answers. Take as much time as needed to know each juror. Notice the jurors’ body language and tone toward you. Are their arms crossed (closing you out), are they looking away? Do they seem engaged? Do they seem aggressive or friendly? Hostile or warm? Cold or empathetic? Attorneys oftentimes do not listen to the jurors’ answers because they are working off a script. Put down the script. You must listen to the answers and follow up. It’s always easy to further any juror conversation by inquiring, “Could you tell me a little more about that?” Show that you are interested in jurors’ responses. Establish eye contact; make it direct. Have someone else write down the voir dire response notes regarding the jurors’ answers; that allows you to really converse, maintain eye contact, and really warm up to those jurors. I speak with every juror on every jury pool, even when I assume they will be against me. I want to establish, at the least, a tiny rapport one-on-one with every juror. Allow the juror to ramble on. Whatever
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they are saying is important to them. Do not cut them off. Voir dire is not about you controlling the jury pool.
Learn names
You have to let each person know your interest in them. Stay away from calling the jurors by juror number. You need to memorize those names and address the jurors by their names when you stand up to talk to them. That may be as important as any question you ask, because it shows you care enough to learn their names, that those jurors are important to you. Speak to every juror. If you don’t talk to every single juror, then you have arguably disrespected the one you missed, even if you meant no disrespect by not talking to them. So, engage with every juror while using their name. Make sure you do not ignore your client. The client may see something in jurors you do not see – they might sense a look or attitude from somebody. You must speak very plain, simple English. Pretend you are talking to a 14-year-old kid.
Why you are here
Tell the jurors early on that you are here for money. This is a civil case and the plaintiff is filing this action. You want them to return a verdict for plaintiff to repay the harms and the losses defendant brought upon the plaintiff. Remind the jurors this is not a criminal case; no one is going to do prison time. It is just a repayment of a debt that has been owed.
First punch to poison questions
A key to voir dire is to inoculate the jury against the “poison” questions. You want to be the first attorney to enlighten the jury regarding the bad issues in your case, while trying to put as positive a spin as possible on those bad facts. You want to avoid defendant getting the first shot at questions such as, “Who thinks Vicodin addiction is bad?”, “Is it okay to skip scheduled medical appointments?”,
“Any problem with people driving vehicles after they have been drinking?” as you want to be the lawyer to expose the jurors to these negative case issues. Plaintiffs need to strike first regarding these issues which would really hurt their case. You have to beat defense counsel to the punch before they get the chance to poison the well with those questions. For instance, the second a juror hears there is alcohol somehow involved in a car accident, the assumption is the alcohol caused the wreck. If the driver is operating his vehicle after drinking but isn’t doing anything improper (i.e., rear-ended by a sober driver while sitting at a stoplight thereby injuring the “drinking” driver), then the alcohol had nothing to do with the (1) liability, (2) causation, or (3) damages. It is just a red herring; just a question to “poison” the jury. Explain that you are going to hear about alcohol being involved in the case facts, but alcohol should have nothing to do with the case verdict. “Would you still listen and give that plaintiff that drank alcohol an opportunity to prove his lack of liability in a case, or once you hear ‘alcohol’ in a driver, are you going to decide that plaintiff must lose? Some jurors automatically assume alcohol to be the cause of the accident without even hearing the facts, so before you assume alcohol is the reason for the injury, can you at least listen to the facts of what happened?” Try to provide the immunization to the known poisons in your case. “Have any of you ever suffered terrible chronic pain? What if only painkillers can reduce that pain? Does decedent, who has a longtime spouse lose the wrongful-death case if decedent had a mistress? Can the spouse who claims a wrongful death still prevail? Can a cheating spouse still be a decent spouse? An excellent parent? Can you be neutral and listen to the facts of the case, or once you learn a mistress is
See Embrace, Page 54
Embrace — continued from Page 52
in the mix, do you prejudge that the surviving, longtime spouse has no real loss?”
Stay friendly
Do not argue with jurors, do not interrupt jurors, never reword their answers (“So I think what you’re trying to say is . . .”). The jurors do not want you interpreting for them. If you have some problem understanding their response, say something polite, such as “Could you explain that to me in a different way, I’m sorry, I’m not following your answer.” Never ask a juror if “you agree” because they will always “agree” with you, based on a hesitancy to disagree with the speaking attorney. You must respect every juror; do not bully or interrogate. Remain being affable even if the juror totally disagrees with your position, or is a clear Tea Partyer/tort reformer. Do not reargue the McDonalds hot-coffee case; just move on. Do not ask for “promises” from the jury. Respect and honor their answers; remember the jurors dislike attorneys, and do not want to be on jury duty. Try to follow the 80 percent to 20 percent rule where jurors do 80 percent of the talking, and you continue following up asking: “Can you tell me more about that . . . .”
The “preponderance” issue and the jury instructions have been changed to “more likely than not” so, stay far away from the word “preponderance,” it’s too confusing. Avoiding preaching, start with questions such as: “Some people say, others say . . . which way do you lean?” This is better than preaching, as these questions force a specific choice and response. Do not worry about jurors saying negative things and affecting other jurors. Get it all out there. Ask these questions: “The big issue here is emotional distress damages, do you believe they should be or not be a part of the verdict? Do any of you agree/disagree? Can you tell me why? Does anyone have a problem with the concept of damages for emotional distress/pain and suffering?” Malingering is often a suspicion held by jurors. Address it: “Some people think that a person who was injured should be able to get better within 3 months, 6 months, 1 year, etc. within a certain amount of time, or do you believe each person is different? Depends on the injury? Should victims get over problems in a certain amount of time? How much time? Can you believe expert witnesses?” Some people have a fixed number that they would never be able to award
“more than” in damages. For example, $10 million. Eight figures. “Does anyone feel that they really could not provide a verdict of more than ten million dollars, or any higher number, even if you felt the evidence supported that higher verdict? Without ever hearing about the harms or losses to this plaintiff, have you already decided the case is worth less than ten million dollars? How did you decide that?”
Know your trial judge
Go watch voir dire in other trials in your specific trial judge’s court. Learn from the court’s position and skill at extensive voir dire. Find out, in advance if at all possible, how the court limits your voir dire. Always be prepared to argue for more voir dire time – getting the right panel is worth the argument. Victor L. George founded the Law Offices of Victor L. George in 1990. His trial practice focuses on employment discrimination and personal injury cases. He was nominated for the 2012 National Trial Attorney of the Year (NTLOY) by Public Justice. In 2005, he was named CAALA Trial Lawyer of the Year for which he has been nominated eight of the past ten years. He has been listed a “Top 100” Super Lawyer six times. Victor George can be reached at vgeorge@vgeorgelaw.com.
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John F. Denove
Using jury instructions effectively in medical-malpractice cases
You’ll need to define “negligence” and “reasonable” to the jury if you want them to bring you a favorable verdict based on the instructions they will be handed
Many plaintiffs’ attorneys forget that a medical malpractice case is only a negligence case, but involving doctors and hospitals instead of cars or stairways. We mistakenly use “standard of care” as though they were sacred words that need to be repeated again and again in order for the plaintiff to prevail. It may surprise some attorneys to learn that out of the 30 medical malpractice CACI instructions, none of them uses the words “medical malpractice.” Only CACI 501, 502 and 504 use the words “standard of care.” Nowhere in the special verdict do the words “medical malpractice” or “standard of care” appear. If we want to convince the jury that they should render a verdict in the plaintiff ’s favor, we should use the words the judge uses in the instructions. Those words are “negligence” and “reasonable.” CACI 501 instructs the jury that the defendant is negligent if he or she fails to use the level of skill, knowledge, and care in the diagnosis and treatment that other reasonably careful health-care practitioners would use in the same or similar circumstances. To establish negligence, the plaintiff ’s attorney must prove that the doctor, specialist or nurse did not act as other reasonably careful practitioners would have. The words “reasonable” and “reasonably” are used in 18 of the 30 CACI malpractice instructions. Unfortunately, these words are not defined. CACI 401 is the Basic Standard of Care instruction. It defines negligence as “the failure to use reasonable care to prevent harm to oneself or to others.” It goes on to state “a person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same
56 — The Advocate Magazine
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situation.” Just like the malpractice instruction, CACI 401 gives the jury little guidance as to what the word “reasonable” means.
BAJI
The BAJI medical malpractice instructions which were the predecessor of the CACI instructions also fail to define what “reasonable” means. The BAJI negligence instructions were more helpful. BAJI 3.10 instructed the jury that “ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to others under circumstances similar to those shown by the evidence.” BAJI 3.11, A Test For Determining The Question of Negligence, provided more direction. That instruction states : One test that is helpful in determining whether a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he/she would have foreseen or anticipated that someone might have been injured by or as a result of his/her action or inaction. If the answer to that question is ‘yes,’ and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence. Unfortunately, this instruction was never intended to be used in a malpractice action. If the court in a malpractice action won’t tell the jury what “reasonable” means, then it is up to the plaintiff ’s attorney to provide the necessary definition. Although the jurors are not permitted to use a dictionary to help define a word, some jurors may succumb to the temptation to look it up on the Internet. The dictionaries define
“reasonable” as being in accordance with reason, in accordance with clear thinking and good judgment, and being within the bounds of common sense. Synonyms for “reasonable” include rational, sensible, sound, valid, well-grounded, prudent and wise.
Tell a story
These definitions and synonyms do not provide the attorney or the jury with much assistance. To make the word “reasonable” come alive, the attorney will need to define it with a story. Rick Friedman, in his DVD Winning Trial Strategies, suggests that the attorney give the jury guidance in opening statement as to what “reasonable” means. To paraphrase Mr. Friedman, he suggests the following: At the end of this case, you will be asked to decide whether or not the defendant acted reasonably. If I asked you if I drove from home to this courthouse in a reasonable manner, you would all know what that means. You would know that it is unreasonable if I followed a car too closely. You would know that it is unreasonable if I read a text message while driving. In this case, you will learn that it is unreasonable for a doctor to . . . In opening statement, explain to the jury what a reasonable doctor would have done and explain why that act is reasonable. When you discuss the defendant’s conduct, explain why that conduct was unreasonable. If you can find an analogy that works with your facts, use it. When your liability expert is on the stand, the jury needs to know what a reasonable doctor would have done and why. You can begin the direct examination and end the direct examination using the words “standard of care” but
the answers given should reinforce that the standard of care is based on what a reasonable doctor would have done. Consider the following direct examination: Q. When treating a patient, must a doctor comply with the standard of care? A. Yes. Q. Is the standard of care found in some book or some law? A. No. Q. What is the standard of care? A. The standard of care is what a reasonable doctor would do in a similar situation. Q. What does the word “reasonable” mean? A. Reasonable means that the doctor does what is best for the patient. Q. In this case, did the defendant doctor act reasonably? A. No, he did not. He acted unreasonably. Q. Upon what facts do you base your conclusion that the doctor did not act reasonably? A. The doctor did not act reasonably because he did not do what was in the patient’s best interest. Q. Please tell our jury what he did that was unreasonable? A. It was unreasonable because . . . This is an injury that could and should have been prevented if the doctor had only acted reasonably. The answer to the question “what did he do that was unreasonable” will be dependent upon the facts of your case. In a case that involves a doctor injuring a patient during surgery because the doctor did not identify the surrounding organs or vessels before he cut, or failed to order the appropriate pre-operative MRI or CT scans, or failed to use intraoperative x-rays or fluoroscopy, the answer could be as follows: “A reasonable surgeon must always look before he cuts.” In a case that involves a failure to diagnose, the answer may be as follows: “A reasonable doctor must first rule out the most dangerous conditions before coming to a diagnosis.” In a case involving a surgery that leads to a bad result, the answer may be as follows: “A reasonable doctor must first
try conservative treatment before rushing the patient into surgery.” In a case involving a delay in treatment in an emergency room, the answer may be as follows: “A reasonable emergency medicine doctor knows that the longer the delay, the worse it is for the patient.” Whatever the appropriate answer is, it should include the word “reasonable.” To convince the jury, your expert must explain why the approach he or she advocates is the reasonable approach and why the defendant’s choice was unreasonable. On cross-examination, you will never persuade the defendant’s liability expert to admit that the defendant fell below the standard of care. Cross-examination, however, can be effectively used to reinforce the concept that a doctor must do
everything possible to protect the patient. Find things that the defendant doctor did that were reasonable and were in the best interest of the patient. The cross-examination might read like this: Q. Did the defendant take a history from the patient? A. Yes. Q. Was it reasonable for the doctor to take a history? A. Yes. Q. It was reasonable because a history helps the doctor make a correct diagnosis, isn’t that true? A. Yes. Q. Did the defendant perform a physical examination? A. Yes. Q. Was it reasonable for the defendant to actually physically examine the patient?
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Instructions — continued from Previous Page
A. Yes. Q. It was reasonable because a physical examination helps the doctor make a correct diagnosis, isn’t that true?
A. Yes. Q. And the reason the defendant needs to make a correct diagnosis is to protect the patient?
A.
Of course, and that is what he did. Most defense experts, especially during a deposition, will be more than happy to tell you all of the reasonable things that the defense doctor did to protect the patient.
Closing argument
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If you have laid the proper groundwork, closing argument is your opportunity to drive the stake of “reasonableness” through the heart of the defense. To do so, it is important that the jury sees the one or two instructions that are most important to the case. This can be done by projecting the instruction on a screen or having an enlargement made that is placed on a poster board. After the instruction is projected or the enlargement is shown to the jury, go to the board and write the following: The defendant is negligent if he did not act reasonably Later on during your argument, you can go back to the board and write: Unreasonable conduct = Negligence In explaining why the defendant’s conduct was unreasonable, remind the jury that no one is accusing the doctor of intending to hurt the patient. Explain that if the defendant injured someone while driving to his office because he ran a stop sign when he was distracted by answering his cell phone, the doctor would be responsible because he did not act as a reasonable driver would have. If the defendant is going to his club after work and rear ends another car because he was following too close, he would be responsible because reasonable drivers leave enough room between their car and the car in front of them. It’s just a matter of what is or is not reasonable. Argue that when one acts reasonably, the community is safe. When one acts unreasonably, the community is at risk. It was defendant’s choice to . . . (whatever he did that was unreasonable). It was unreasonable because it was not in his patient’s best interest. If only the defendant had made a reasonable choice, he would not have caused this injury.
See Instructions, Page 60
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Instructions — continued from Page 58
Three more instructions
There are three additional instructions that should be explained and emphasized throughout a medical malpractice trial. These instructions are CACI 200, the Burden of Proof instruction; CACI 430, the Causation instruction; and CACI 506, the Alternative Methods of Care instruction. David Ball, in his book, Damages, argues that jurors must be educated from the start that the plaintiff ’s burden is only to prove something is “more likely true than not true.” He advocates that you use a visual explanation when asking the prospective jurors about the concept of the burden of proof. He suggests that you use your hands, palms up, as if they were scales. When explaining the concept of “more likely true than not true” slightly tip one of your hands lower than the other. When examining witnesses, ask them if it is “more likely true than not true.” This can be done on both direct and crossexamination. During argument, repeat the words “more likely true than not true” and use your hands as if they were scales as you summarize the evidence. For the causation instruction, the plaintiff ’s attorney needs to explain that the words “substantial factor” merely mean that the conduct must have influ-
enced the outcome. It doesn’t have to be a large influence. It only has to be something that is more than trivial. Argue that what the defendant did was not trivial. It had a direct effect on the outcome. In cases where the defense argues that the defendant chose an accepted alternative method of care and is therefore not negligent, you need to explain what CACI 506 actually means. The instruction reads as follows: A medical practitioner is not necessarily negligent just because he/she chooses one medically accepted method of treatment or diagnosis and it turns out that another medically accepted method would have been a better choice. This instruction does not mean that the defendant is not negligent if there is more than one accepted method of treatment or diagnosis. It means that you just don’t use hindsight to determine what the doctor should have done. The doctor is negligent if, at the time he chooses one method of treatment over the other, that choice was unreasonable. Although there may be two accepted methods of treatment, it is unreasonable if at the time one makes the choice to choose the method that has a less likely chance of success or has greater risks associated with it. Emphasize that the test of reasonableness is not merely the
outcome but what a reasonable doctor would have predicted the better choice to be at the time that decision was made. The plaintiff ’s attorney in any case has the advantage because he or she gets to frame the evidence and the law before the defense attorney. The plaintiff ’s attorney is the first to voir dire, first to give opening statement, first to put on evidence and first to argue. Don’t waste the opportunity to frame the jury instructions you know the judge will give and the jury must consider. If you don’t put your spin on the crucial instructions, the defense attorney will. If the defense attorney doesn’t, one or more of the jurors who may have an agenda will explain to the other jurors what the instructions actually mean. As any trial attorney knows, you do not want that to happen. John F. Denove specializes in major injury, medical malpractice and insurance bad faith litigation. He is a past president of CAALA, was named its Trial Lawyer of the Year in 1993 and received the Ted Horn Memorial Award in 2001. He received the CAOC/CTLA Presidential Award of Merit in 1994, 1996 and 2000. He was named CAOC’s Outstanding President of the Year in 2000 and received the Edward I. Pollock Award in 2006. Denove is a Diplomate of ABOTA and a member of the Los Angeles Chapter’s executive committee.
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Jeffrey J. Greenman
Take a breath: they are just as nervous as you are
Five steps to managing your stress – your nervousness – at trial
The first words I ever spoke in front of a jury were, “Hi, I am really nervous.” That statement didn’t come anywhere close to how hard Jeffrey and fastJ.my heart was Greenman pounding or how cluttered my thoughts had become. Right then I couldn’t believe what I had just uttered. Did I just blow my cover? Did I just give them (defense, judge and jury) the advantage? Why couldn’t I have just introduced myself as Jeff? My name isn’t Really Nervous! At that moment, I took a deep breath and remembered some words harped upon me by Michael Alder, “You must learn to control your heart rate in trial”. When I exhaled I felt much better; not great, but better. I’m no stranger to public speaking. I did quite a bit of it growing up as the baby of seven, in college and professionally. However, for obvious reasons, a room full of strangers that don’t want to be there can trigger a deal of anxiety in someone. I’ve attended a good number of the Gerry Spence seminars and have had the opportunity to practice many of Spence’s techniques on voir dire. These opportu-
nities helped prepare me for these experiences but didn’t help with the nerves. Oddly, the moment I conquered my fears of jurors was the day I actually sat as one. Not enough can be said about placing yourself in someone else’s shoes. As plaintiffs’ attorneys, we are ingrained with special talent in this empathetic department. When I sat in a jury box for the first time, I felt intimidated by the whole process. I felt so small in that courtroom with the judge sitting up high, the attorneys on top of their game and the staff herding us like cattle. The last thing I wanted to do was speak to these people and tell them personal things about my life in front of other strangers. Sitting behind the little wooden wall of safety I watched the body language of the other jurors. Most couldn’t sit still as their time was coming to talk, hands were shaking, you could feel their hearts beat. It hit me then, they are just as nervous as we are!
Overcoming “nerves”
I’ve kept this in mind in every case I’ve tried since and for me it seems to
work the best. Obviously, there are a multitude of other things to do before a trial to keep the nerves at a minimum. Here is a checklist of five things you can do to help overcome these nerves:
1. Preparation is the key
No matter how suave or smooth an attorney you are, if you walk into court unprepared, you won’t be as persuasive as you should be. You can’t just “wing” a trial and if you try to “wing it,” you won’t be giving it anywhere close to what you could have with preparation. Do all of the legwork beforehand – names, dates, case law, factual summaries, argument summaries, deposition summaries or bullet points. Have everything prepared before you walk into court. Anticipate evidentiary objections or questions from the bench on your motion in limines or other evidentiary matters. Have drafts of your jury selection questions, opening, directs, cross-examinations and closing arguments prepared in advance. Simply knowing that you are well prepared and capable of responding to
See Breath, Page 64
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almost any objection or eventuality will calm you down and reduce your level of tension. Mike Alder used to tell us about his “5 second rule.” If you can’t locate the documents you need within five seconds, then you need to just move on. Being prepared and well organized will solve this issue. There is no worse feeling during trial than losing your train of thought or feeling the restlessness of a jury as you search for something amongst a mess of papers.
2. Talk to just one person at a time
Do you feel comfortable speaking to one person? Could you present your opening statement or arguments to one person? Would you get flustered or forget
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your opening statement if there was only one person in the jury? No. Then what difference should it make if they’re surrounded by 11 other people or if the audience is filled with dozens of spectators? Start by picking out someone in the front row of the jury box, making eye contact, and having a one-on-one conversation. If you only talk to one juror for your entire opening, they’ll feel uncomfortable, the rest of the jurors will feel neglected, and your presentation will be ineffective. To avoid that, talk with them for a moment, then pick someone in the back row, and talk to them for a little while. Then shift to the front left or the back right corner, continuing to work your way around the jury box, always making eye contact with just one person, having a oneon-one conversation, and then moving on. Each juror will feel like you are talking to them personally, and you will reduce your level of nervousness because you’ll only be talking to one person at a time. Talking to everyone at once can be overwhelming; your eyes will scan across the crowd and your mind will soon follow your clouded vision. I try to give each juror a sentence before I move on to another juror. This is a great way to talk to someone, make a connection, but not make it awkward. The eye-to-eye contact is so important to obtain the personal connection. Don’t look down or away from the jury very often; always try to keep them engaged.
3. Tell stories
People relate to stories. Jurors have an easier time understanding a story and being able to retell that story back in the deliberation room. Stories are also easier for you to remember. Every case you have is an amazing story waiting to be told and retold. People can hear facts and rattle them off but remembering them is much more difficult. Think back to your youth and early education. While you might be able to tell me some facts you learned about state capitals or U.S. Presidents I can guarantee your best
memories start off like “This one time at recess” or “there was this crazy kid, Mike, in my 4th grade class who would do anything” etc... You remember these stories because they are interesting and people like to hear them. Facts are dry by themselves but can always be spiced up with a good story. Many attorneys play their opening statements by the book. They start off by saying “the evidence in this case will show the following . . . blah blah blah.” I see jurors’ lights turning off when they hear the word evidence. They look at you like a boring teacher rather than the person making the “good stories” they remember. I start off my opening by telling the story of what happened. Often the judge will cut me off and force me to say, “the evidence will show,” but no matter what happens, keep telling your story. Make sure your stories are well thought out and go in chronological order to keep the jurors on board. Keep in mind that story you opened with can be expanded through testimony of your clients. Then when closing time comes you will be able to give your story all the life and power it needs to stick in the jurors’ minds and make your case successful. Since stories are easier to tell than regurgitating facts, they are also easier to remember. The less you have to “remember” during a trial, the better. Being able to fall back on a well thought out story will help guide your questioning and thought process during trial. It will bring you back to what’s really important. Having a home base to come back to will significantly reduce your nerves during trial and make you feel more comfortable. Plan on spending a few days with your client both before their deposition and trial to perfect the story.
4. Practice makes perfect
If your nervousness comes from a fear of public speaking, don’t be shy about confronting it. Studies show that presenting a speech for an audience is one of the average American’s greatest fears. It should come as no surprise then
See Breath, Page 66
Breath — continued from Page 64
that many lawyers feel that same fear. After all, in the courtroom, the bulk of our job consists of presenting ideas and facts to an audience (albeit an audience that makes a crucial decision at the conclusion of our presentations). Some attorneys have significant public speaking experience, while others don’t have any experience at all. If you haven’t spent much time speaking to groups, I would recommend joining a networking group or Toastmasters. Like me, if you don’t have time to do that, then practice at home. In the days before trial my neighbors probably think I am a crazy person. I walk through my house, addressing my TV or mirrors giving my argument. Always on my feet and always out loud. I try to re-create the experience of the courtroom. If the judge is the type who won’t let you pace around, you should practice talking behind a podium. Find out what you can about the courtroom well in advance of the trial date. You don’t want any last minute hiccups to rattle your nerves before you begin. Before long, you’ll feel confident enough about the style of your presentation that you will be able to focus all of your attention on the substance of your presentation. When that happens, your
fears will be minimized and you’ll be on your way to telling your client’s story the way it was meant to be told.
5. Keep it simple
This is my favorite rule in trial and it also takes the fear out of actually getting up there and doing it. As anyone knows, when you have too much going on in work and/or life you get stressed. I recently had three oppositions to motions for summary judgment due in the same week and stressed (irritable) didn’t even begin to describe my demeanor. The clutter of paper and exhibits drove me nuts. Trials often reach the same breaking point of disarray. Trust me, you don’t want to get overly stressed in trial or make things more confusing than they should be. Keeping things simple in trial can help you get through these tough, confusing parts. I have found that a favorite defense tactic in trial is to intentionally confuse the issues or use red herrings to try and distract the jury down a rabbit hole. Don’t fall into these traps. The case is never about a difference in responses at deposition and interrogatory responses nor is the case ever about a missed chiropractic visit. Don’t lose your cool and argue with the defense on these
distractions, you will only attract more attention to what they want. I start my opening statement by telling the jurors about how simple the case is. I also warn them of how confusing the defense will try to make it. During trial I often remind the jury of the real issues and simple nature of the case. Every case is simple. Every case comes down to one or two specific facts. I can break down every case I have to one or two specific facts; you should try and do the same. This is your simple fact and you must harp on it endlessly during trial. Your “simple” motto will always be there to save you when things get distracting and the nerves set in.
Jeffrey Greenman is the founding partner of Greenman Law P.C. in Newport Beach. His practice has focused on personal injury and medical malpractice litigation for the past six years. He attended the University of Washington for his undergraduate degree and Chapman University School of Law for his J.D. Currently, he is an active board member of CAALA and a director of the Los Angeles Trial Lawyers Charities (LATLC). He serves on the board of the Long Beach Bar Barristers division as well as being an active member in CAOC and AAJ. He was CAALA’s first ever recipient of the “Rising Star” award in 2012.
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Amy Fisch Solomon
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Voir dire in auto cases
Tips on how to seat impartial jurors through hearing their answers
Many jurors distrust the attorneys who handle automobile cases. The way that you present yourself can assist in dispelling that notion. You are an extension of your client and want the jury to know that you would not waste their time if your case was not worth the effort. You are there to attempt to educate the jurors regarding the theme of your case. Keep in mind that if a jury likes you and your client, they are more likely to award a more favorable verdict. Don’t hesitate to use your personality to try to get jurors to like and respect you. You must also treat the jurors with respect and never embarrass them. Never treat the court with anything but respect and honesty. In the event you are confronted with a juror with a bad attitude or who is somewhat confrontational, never argue with that individual. Thank them for their honesty and tell them that you hope the other prospective jurors follow their example by being honest and forthright. Some lawyers try to pre-condition jurors as to a particular issue in the case. Though this is discouraged by most judges, many lawyers still take this approach. If you do, try not to be too obvious or repetitive in your questions. More and more judges are limiting the amount of time for conducting voir dire. Because of this you must get right to the point. You cannot spend the time going over every question with every juror. Since judges ask the initial questions, try to follow up with those jurors who you believe will illicit responses that might affect other jurors and cause them to respond. In other words, you must listen more than talk. Let’s go through the process.
Rapport with the jury
The process of jury selection should focus on building a rapport with the panel. Prior to starting your questions, make a short statement to the jurors.
68 — The Advocate Magazine
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Introduce yourself and then introduce your client. Thank the jurors for serving. But most of all, be yourself. Any artifice in your demeanor will register as false or disingenuous with the panel. Tell them that they are here in court for an accident that took two or three years to get to court. This is not the fault of the attorneys or the court. There is a two-year statute of limitations. It takes time to litigate through the court system. Inform the jurors that you are not trying to embarrass them or pry into their lives. Everyone has biases. Give an example such as how Dodger fans hate the Giants and how Giant fans hate the Dodgers. There is nothing wrong with having a certain amount of bias or preconceived notions. Tell jurors that by being honest and candid, they are helping the system. Not everyone can be impartial. Emphasize that you are not trying to be personal or pry. The system only works when there is, in fact, impartiality.
Questioning the jury
Open-ended questions are the key to finding out what a juror thinks. For example, the following type of question should be used when a chiropractor is involved. Again, it bears repeating, you must speak from your own voice and keep it real. “What are your feelings about chiropractors and the type of therapy they perform?” Or, “has anyone in the panel used a chiropractor and, if so, what was your experience?” Simply asking the question, “Do you have anything against chiropractors or the therapy they perform?” you only get a perfunctory “yes” or “no” with little real information to use in discerning juror attitudes. Other areas for discussion and examination in auto v. auto cases are: • Tort Reform - frivolous lawsuits; • Awards of juries in general;
• Medical treatment: chiropractors; gaps in medical treatment or missed appointments; • Low impact versus heavy impact: no ambulance at scene; delay in seeking treatment; soft tissue injuries.
Theme of case
Before starting the trial it is mandatory to establish a theme for your case. In this case, the issue is one of soft-tissue injuries. You must establish that these are real injuries that justify medical treatment. This theme is used in voir dire and throughout the trial. The theme must be easy to understand and simple. Jurors’ own experiences as they relate to this case must be explored. Questions such as these should be asked on soft-tissue cases: • Do you know friends or have family members who were involved in accidents? Did they all react the same? How did they react differently? • Do you understand that some individuals may be more susceptible to pain than others? Describe your experiences. • Did the friends or family members all treat for the same amount of time? Same types of doctors? Describe. The same type of questions can be adapted for alcohol usage, low impact cases, etc.
Damages - Questions
Damages are the heart and soul of your case. You must always ask the jury about questions in the case. Two issues should be stressed. You are only asking for what is fair and reasonable; and, adequate compensation for injuries. • Does anyone have any objection philosophically to awarding money damages for pain and suffering? • Does anyone have an objection or problem awarding fair and reasonable (or adequate) compensation?
See Voir Dire, Page 70
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Voir Dire — continued from Page 68
• In certain cases would you have a problem awarding a large amount of money if it fairly and reasonably (or adequately) compensates an individual for his or her injuries? Also, always question about artificial limits. Is there any amount that you could not award more than no matter how severely someone was injured? Give an example about a juror in another case wherein he or she responded in voir dire that they could never award more than a specific amount of damages, e.g., $50,000.
Know the rules, read the Code
The Code of Civil Procedure section 222.5 deals with civil jury instructions and was amended in 2011 to make clear that courts could not impose arbitrary
70 — The Advocate Magazine
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limits on the length or content of voir dire. Trial lawyers should be aware of what it says: To select a fair and impartial jury in civil jury trials, the trial judge shall examine the prospective jurors. Upon completion of the judge’s initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause. During any examination conducted by counsel for the parties, the trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been
included in the judge’s examination should not preclude additional nonrepetitive or nonduplicative questioning in the same area by counsel. The trial judge should allow a brief opening counsel for each party prior to the commencement questioning phase of the voir dire process. [Author’s note: there has been lot of debate regarding the usefulness and wisdom of many openings and therefore should be used with caution.] The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge’s sound discretion. In exercising his or her sound discretion as to the form and subject matter of voir dire questions, the trial judge
See Voir Dire, Page 72
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Voir Dire — continued from Page 70
should consider, among other criteria, any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case. Specific unreasonable or arbitrary time limits shall not be imposed in any case. The trial judge shall not establish a blanket policy of a time limit for voir dire. The trial judge should permit counsel to conduct voir dire examination without requiring prior submission of the questions unless a particular counsel engages in improper questioning. For purposes of this section, an “improper question” is any question that, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law. A court shall not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by
the court in its sound discretion, when requested by counsel. If a questionnaire is utilized, the parties should be given reasonable time to evaluate the responses to the questionnaires before oral questioning commences. To help facilitate the jury selection process, the judge in civil trials should provide the parties with both the alphabetical list and the list of prospective jurors in the order in which they will be called. In civil cases, the court may, upon stipulation by counsel for all the parties appearing in the action, permit counsel to examine the prospective jurors outside a judge’s presence.
Summary
Remember, usually you have only six peremptory challenges. Use them wisely. And good luck.
Amy Solomon is a partner of Girardi|Keese which specializes in plaintiffs’ civil trial work, including product liability, toxic torts, medical and legal malpractice, and insurance bad faith. She has tried more than 30 cases, in both State and Federal Courts, as
well as in Arbitration proceedings. In 2002, 2003, 2004, 2005, 2006, 2008, 2009 and 2010 she was named one of the Top Women Litigators in California by the Daily Journal, and one of The Top 100 Lawyers Shaping the Future in 2008. Ms. Solomon currently gives her time to the Superior Court to act as a Settlement Officer, Arbitrator and Mediator. Ms. Solomon was the President of CAALA in 2008 and still serves on its Executive Committee. Ms. Solomon received her J.D. from Loyola Law School (1987).
Robert S. Fink is a Past President of the Consumer Attorneys Association of Los Angeles and is a longtime Board of Governors member. He frequently lectures for both Consumer Attorneys Association of Los Angeles (CAALA) and Consumer Attorneys of California (CAOC). Mr. Fink has been practicing law for over twenty years and has tried numerous cases. He frequently acts as both arbitrator and mediator in civil litigation matters and is a member of the Superior Court’s Alternative Dispute Resolution Committee. Mr. Fink received his J.D. from Whittier College of Law in 1975.
To schedule a case or learn more about PMA, 877.678.1010 or www.pma-adr.com
Lee Jay Berman
72 — The Advocate Magazine
FEBRUARY 2013
Scott S. Markus, Esq.
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FEBRUARY 2013
The Advocate Magazine — 73
Hon. Mark V. Mooney
Jury selection – a judicial perspective
A trial judge explains why jury selection is often the most exciting part of the trial
I love jury selection. It is often the most exciting part of the trial. From the minute the prospective jurors enter the courtroom and the attorneys and their clients are identified for the panel, everything the attorneys or the parties do thereafter, in or out of court, can potentially affect the outcome of the trial. Although technically not a part of the body of evidence upon which the jury will be making their decision, jury selection is in many ways when the trial really begins. The trial judge will of course instruct the panel in accordance with CACI 100 and CACI 106 that the jury must base the decisions only on the evidence they see or hear while court is in session. Notwithstanding this admonition, it will always be difficult for a juror to ignore something he or she may see outside the courtroom that may cause an unfavorable impression. I also love jury selection because there are just so few ways that, in a civil trial, a judge can be found to have committed reversible error. This is a fact that gives a judge a sense of security in the decisions he or she makes during this portion of the trial. The law gives trial judges a tremendous amount of discretion in how they handle the jury selection process. We can decide whether we want to use a “six-pack,” make individual inquiry, or even inquire of the entire venire. We can place reasonable time limits on voir dire and limit scope of examination. It is up to the judge to decide to excuse a juror who has been challenged for cause or has claimed a hardship. Absent an error that amounts to a violation of a Constitutional right (not very common in a civil trial), the trial judge is very unlikely to be reversed on anything arising during jury selection. The best part about jury selection though, is that it is the most unpredictable part of the trial. In preparing for the trial you have already deposed every
74 — The Advocate Magazine
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one in sight. You have reviewed every scrap of paper that could possibly be considered evidence. There may still be a few surprises – but not many. Jury selection is nothing but surprises. You know nothing about these people and have no idea what they are going to say. How well, or how poorly, the litigator handles the unexpected responses of prospective jurors can make a significant impression on the entire panel. Not all my colleagues on the bench share my love of jury selection. Some prospective jurors make great efforts to be excused from jury service. Dealing with those few jurors who seem primarily interested in avoiding jury service can be a frustrating experience for a judge. I truly believe that the vast amount of prospective jurors approach the selection process with sincerity and try to answer all questions honestly. However there is a very small number who seem to be willing to say whatever it takes to get off a panel. I have noticed a definite increase in this tendency since implementation of Government Code section 68550 in 2000. This is the code section that required the courts to implement a system whereby jury service would only last one day or one trial. On every jury panel there almost always seems to be one or two people who assume that once they are excused from a panel, they will have completed their jury service. If they can just say something sufficiently outrageous, they will be excused and be on their way home. This small group apparently believes they are the first ones to come up with this stratagem. Unfortunately, judges see this far too often. It can be a very exasperating experience for every one when the excuses become more and more exaggerated. For those of us who have a strong belief in the jury system, this conduct becomes downright offensive. The litigators and the judge need to assess the sincerity of all respons-
es. As the selection process continues and the prospective juror thinks that there is a chance he or she may actually end up serving on the jury, the responses to voir dire questions can become more and more outrageous. The litigator may be tempted to encourage outrageous answers to better establish the basis for a challenge for cause. As a judge however, I sometimes need to limit this questioning to prevent a response that may potentially taint the entire panel.
Voir dire goals
Judges basically want to accomplish two things during the voir dire process. The first of which is to see that a fair and impartial jury is selected. Indeed, that is the statutory duty of the judge. (Code of Civ. Proc., § 222.5.) The second thing judges want to accomplish is to see that the process is completed as efficiently and expeditiously as possible. (See, People v. Wright (1990) 52 Cal.3rd 367, it is duty of the judge to restrict examination of prospective jurors within reasonable bounds to expedite trial; People v. Williams (1981) 29 Cal.3rd 392, judge should not permit inordinately extensive and unfocused questioning). There is an inherent tension with those two goals. The less time that is permitted for the jury selection process, the less information is available to evaluate the ability of the potential jurors to be fair and impartial. As judges, we should not forget that the desire to efficiently select the jury should never come at the expense of impaneling a fair jury. While litigators generally loathe having time limits placed upon their questioning, the imposition of reasonable time limits is permitted by statute. It does have a legitimate place in trial management. The emphasis should be on the term “reasonable”. The amount of time appropriate should vary from case to case
See Jury, Page 76
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Jury — continued from Page 74
and should probably be determined in consultation with trial counsel. Indeed, recent amendments to Code of Civil Procedure § 222.5 prohibit judges from establishing a blanket policy of a time limit for voir dire. Nevertheless, judges ultimately retain the discretion to set reasonable or non-arbitrary time limits. Voir dire is not to be used to precondition the jurors to a particular result, indoctrinate the jury, instruct on the law or ingratiate themselves to the panel. (Code of Civ. Proc., § 222.5) Of course, that does not mean that the litigators do not try to do exactly that. The limitations on questions pertain to questions for which the “primary” purpose of the question is an improper one. Questions that
only incidentally touch upon issues that may arise during trial are not improper. In truth, the most effective voir dire is when the attorney can successfully weave jurors’ responses into the attorney’s theory of the case. This is the unpredictable aspect of jury selection that can really make a difference. Going into jury selection, an attorney never knows what nuggets will be uncovered that he or she will be able to use. As long as the attorney is asking questions of the juror that appear to be inquiring as to their individual experiences or opinions and could arguably be calculated to discover a bias or prejudice, the attorney will likely survive an objection for asking an improper question in voir dire.
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or 877-653-1373 76 — The Advocate Magazine
FEBRUARY 2013
Simply relying on a prepared set of questions and checking off the answers will garner little information to assist in exercising a challenge. Worse, it will do little to impress your audience (i.e., the jurors). Any time during jury selection where you find yourself spending more time imparting information to the prospective juror, rather than getting information from the juror, you are likely asking objectionable questions. At the very least, you may be performing an ineffective voir dire.
Listening
Effective voir dire starts with the attorney actually listening to the jurors. Jury selection is often little more than an elevated form of stereotyping. Decisions on whether to excuse a juror are often based largely on the prospective juror’s employment, education, gender, age or area of residence. The litigator attempts to have the prospective juror “open up” to try and get a glimpse into the juror’s perspective on life. It is also understood that part of the process is being used by the litigator to make a connection with the juror. As a judge, I recognize that this process is taking place. My job is to make sure it is done within the rules.
Hon. Mark Mooney received his undergraduate degree from the University of Southern California in 1978. He attended law school at Southern Methodist University and received his Juris Doctor in 1981. Before being appointed to the bench he was an associate with the defense firms Hillsinger & Costanzo and Lafollette, Johnson, De Haas & Fesler. He also served as an Assistant United States Attorney for the Central District of California from 1991-1995. Judge Mooney was appointed to the Los Angeles Municipal Court by Governor Pete Wilson in 1995. In 1998 he was elevated to the Superior Court for the County of Los Angeles. He currently has an unlimited general civil assignment in the Mosk Courthouse.
THIS IS
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Joining CAALA is like joining the cityÊs most prestigious plaintiffsÊ law firm. I’ve had the opportunity to brainstorm cases with some of L.A.’s best lawyers, including Gary Dordick and Mike Alder. Being able to communicate with each other via the list serve is one of CAALA’s greatest tools. - Linda Fermoyle Rice; Rice & Bloomfield, LLP
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The Advocate Magazine — 77
Chris Denove
Quantifying the impact of juror demographics on damage awards Valuing your case based on the demographic propensities of the sitting jurors
Most jury consultants will tell you that demographics are a poor predictor of whether a juror will be predisposed to your case. Instead, the prevailing belief is that a juror’s life experiences are a much more reliable predictor of a juror’s disposition. In this article we investigate the role of juror demographics using statistically based research to provide a definitive answer to the role of juror demographics. This study is based on the results of seven recent mock trials of personal injury cases performed by Camarillobased Trial Survey Group where jurors were tasked with coming up with a damage award. We averaged the damage awards of each demographic group (age, gender, etc.) and compared those averages against statistical norms. Since these trials involved a total of more than 1,500 mock jurors, our group had a very large sample size from which to draw comparisons. In other words, the differences we see here are not due to anomalies of one or two jurors, but are in fact endemic to each demographic group. The results show that certain demographic groups are statistically plaintiff (or defense) orientated, on average, when awarding damages. The key to using this data is to understand that these averages are not definitive. Just because the data shows that “young white” jurors award less money on average does not mean that every young white juror behaves this way. Individual jurors are just that; individuals, and are certainly capable of bucking their demographic trend. The key is that in the absence of other information, juror demographics provide meaningful statistical insight into a juror’s propensities. Consider the following sports analogy where the Clippers are a 10-point favorite against the Lakers the next time they meet at Staples Center. Just because the Clippers are a 10-point favorite does not in and of itself guarantee a Clipper victory. But, it does tell you that in the absence of any
78 — The Advocate Magazine
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which to make decisions during jury selection. The following provides some basic insights about each juror type. The charts show how much more (or less) each juror type awarded across an average of the mock trials. For example, we see that older jurors (age 55 or higher) award six percent more than average, while jurors under age 35 award six percent less. This means that on a case valued at $1 million, younger jurors (on average) would award $940,000, compared to $1,060,000 for older jurors (a difference of $120,000). We noted above that averages might not always hold because some individual jurors have opinions shaped by their unique life experiences. There is another area to consider that may cause a juror to differ from their typical profile. The averages shown in these charts reflect verdicts across a wide variety of personal injury cases. As discussed below, certain demographic groups may react differently to different types of cases (physical injury versus emotional damages, etc.).
Gender
contravening information that you will be financially better off placing a bet on the Clippers, and avoiding the temptation to bet on Kobe and crew. Understanding demographic propensities is more important than ever in this age of budget cuts and disappearing courtrooms. Even before the recent cuts the trend was to reduce the amount of time attorneys had to question each juror during voir dire. This trend is certain to continue, which means that attorneys will have even less information from
Gender provides an example of how demographic propensities can be different based on the type of case. Based on the seven mock trials the overall amount of money awarded by male and female jurors was nearly identical. On its face this would suggest that a juror’s gender does not play a role in damage awards. This is not the case. It is just that gender is very case fact specific – women respond better to some types of cases and men to others. In one of the seven test cases women awarded nearly twice as much as their male counterparts. In four of the seven cases, however, men actually awarded more in damages than women. This raises the key question – which types of cases do women respond to? Unfortunately, this is a complex answer that will be the subject of a future article
Michael Zea because gender differences can be influenced by factors such as; the gender of the plaintiff, whether the injury limits physical activity, and the scope of emotional damages involved. Suffice it to say that female jurors will be less sympathetic to a case involving a husband who claims that his injury limits his ability to play sports, thereby “forcing” him to spend more time at home – but you probably didn’t need a statistical research study to know this.
Ethnic background
Unlike gender, a juror’s race or ethnic background consistently predicts juror propensity across a wide variety of cases. For example, African American jurors awarded higher damage awards in nearly every mock trial performed by our group over the past two years, regardless of the type of case. Some attorneys have been surprised to find that Hispanic jurors are conservative when it comes to damages. This is something we found consistently over the past two years. We should note, however, that in one mock trial involving a Hispanic plaintiff that Hispanic jurors awarded 24 percent more than white jurors. We have seen this same racial favoritism in other mock trials outside the scope of this research project.
Age
When it comes to age, the rule of thumb is that younger jurors are more
conservative. Although this tends to be a good rule of thumb in the absence of other information, much like gender, the impact of a juror’s age on verdicts can be case specific. Older jurors (55+) awarded more than young jurors (under 35) in four of the seven mock trials comprising this study, including two where older jurors awarded nearly twice as much as their younger counterparts. But, in two of the cases the younger group actually awarded 25 percent to 30 percent more. We have not yet isolated a pattern for the types of cases that appeal more to each age group, but have noticed a slight tendency for the gap between older versus young jurors to be larger in cases where the average damage award exceeds $1 million.
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As a general rule, the less a person earns, the more they will award in damages. While this rule holds true most of the time, the impact of juror’s affluence is not as great as other demographic characteristics. Of all the mock trials analyzed for this study, the damage award never varied by more than 16 percent between the two income groups in any case (and were essentially the same in others). This is important considering the very large differences we occasionally saw in gender, race, and age.
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Impact — continued from Previous Page
Political affiliation
Whether a person is a Republican or Democrat is not a demographic characteristic, but instead a personal choice. Much like demographics, however, political affiliation helps predict damage awards. Few people will be surprised to find that Democrats award more in damages than Republicans; more than twice as much in one mock trial. We should note that from our work outside these test cases we know that political affiliation often has an even greater impact on liability where core beliefs around personal responsibility come into play.
Life experience
Although the focus of this article was on demographics, where relevant we also
measured the impact of two personal life experience factors on jury awards: • How important is physical activity to each juror? • Whether the juror personally suffers from back pain? Four of the seven mock trials involved plaintiff ’s complaining that their injuries significantly reduced their activity level (sports, hiking, etc.). We therefore placed jurors into three groups based on how important physical activity is in their own lives. The results were clear; the more physically active the juror, the more that juror will award a plaintiff whose injuries limit physical activity. What was surprising was the extent to which this single factor impacted damage awards. For a case valued at $1 million, Joe Jock would be expected to award $1.26 million, compared to only $730,000 for Charlie Couch Potato.
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We should add that this pattern held true in all four relevant cases tested. Attorneys must be careful, however, not to interpret “physical activity” too narrowly because this goes well beyond traditional “sports” and also cuts across gender lines. The reason a juror’s physical activity level impacts their award is of course because an active juror is more easily able to empathize with the plight of the plaintiff. As such, one would expect that a juror who personally suffers from chronic back pain would similarly award more money when back pain is at the heart of the plaintiff ’s case. This is a reasonable hypothesis, but one that holds only partially true. Two of the seven analyzed mock trials involved back pain. For these two cases we divided mock jurors into three groups. On either end of the spectrum
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we had one group that did not have any back pain, and another group that suffered from frequent back pain that significantly impacted their life. The third group fell somewhere in the middle; less severe back pain that only occasionally impacts their life. There is no question that jurors seriously impacted by chronic back pain related favorably to the plaintiff and awarded significantly more money. But, jurors who suffer mild (or only occasional) back pain actually awarded less than jurors who have never experienced any meaningful back pain. An analysis of the reasons jurors told us to explain their verdicts sheds some light on this counterintuitive finding. Jurors who suffer only occasional back pain often questioned whether the plaintiff was overreaching by asking for
a large damage award for back pain, noting they (the juror) have similar “aches and pains” that they are able to live with. This suggests that plaintiff ’s attorneys should be wary of jurors who are able to cope with pains similar to those complained about by the plaintiff.
Ethical considerations
The findings of this research shed new light on jury profiling. Some findings simply reinforce commonly held beliefs, while others are new and somewhat counterintuitive. Having this knowledge, however, raises ethical considerations for trial attorneys who should avoid making peremptory challenges based on immutable demographic characteristics such as race or gender. These ethical considerations do not, however, suggest that attorneys should
not make practical use of this information. By understanding the general propensities of each group (or researching the propensities for a specific case), attorneys have the opportunity to reevaluate their case based on the demographics of the sitting jury. Chris Denove is an attorney who formerly practiced at Cheong, Denove, Rowell, Bennett & Karns. Chris also spent a dozen years at J.D. Power and Associates where as partner and vice president, he designed opinion feedback systems for some of the world’s largest companies. Chris currently serves as president of Camarillo-based Trial Survey Group, an organization that provides mock trials and opinion research for attorneys. Chris may be reached at chris.denove@gmail.com, or www.trialsurveys.com.
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate About Reports and Cases in Brief
this Issue Recent cases of interest to members of the plaintiffs’ bar Editor-in-Chief Nalwa v. Cedar Fair, LP
Jeffrey Isaac Ehrlich
(2012) __ Cal.4th __ (Cal. Supreme) Who needs to know about this case: Lawyers litigating cases involving injuries sustained in “recreational activity” likely to involve an assumption-of-risk defense Why it’s important: Holds that the assumption-of-risk defense applies to Jeffreynot Isaac “recreational activities,” justEhrlich sports. Applies the defense to a claim involving injuries on an amusement park “bumper car” ride. Synopsis: Plaintiff Nalwa was a passenger in a bumper car driven by her nine-year-old son. Toward the end of the ride, plaintiff ’s car was bumped from the By Jeffrey Isaac Ehrlich front and then from behind. Feeling the Editor-in-Chief need to brace herself, plaintiff put her hand on the car’s “dashboard” and suffered a fractured wrist. Plaintiff sued the park owner. The trial court granted the park’s motion for summary judgment based on the defense of primary assumption of the risk. A divided Court of
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Appeal reversed, finding that the doctrine of primary assumption of the risk did not apply to bumper car rides, which were “too benign” to be considered a “sport.” The Supreme Court granted review and reversed. The public policy underlying the Court’s adoption of the primary assumption-of-risk doctrine was to prevent common-law tort rules from undermining Californians’ recreational opportunities. Accordingly, the primary assumption-ofrisk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity. “The policy behind primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities. Allowing voluntary participants in an active recreational pursuit to sue other participants
or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature.” The Court cautioned that it was not expanding the doctrine to “any activity with inherent risk.” Travel on streets and highways, for example, poses some inherent risks, as do many workplaces, but the modern assumption-of-risk doctrine is considerably narrower in its application. The doctrine applies to “active recreation” because it involves physical activity and “is not essential to daily life” and is therefore particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. “And participation in recreational activity, however valuable to one’s health and spirit, is voluntary in a manner employment and daily transportation are not.” The Court rejected dissenting Justice Kennard’s suggestion that the determination of which risks are inherent in a recreational activity is fact intensive and
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unsuitable for resolution as a matter of law on demurrer or motion for summary judgment. It noted that trial courts deciding questions of inherent risk could consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment. Finally, the Court rejected the argument that because amusement park rides are subject to state safety regulations and inspections, that the assumption-of-risk doctrine does not apply. State regulation to avoid grave risks does not mean that amusement park rides do not present some risk of minor injury, and the goals of those who participate in amusement park rides is not to avoid all injuries. “A small degree of risk inevitably accompanies the thrill of speeding through curves and loops, defying gravity or, in bumper cars, engaging in the mock violence of low-speed collisions. Those who voluntarily join in these activities also voluntarily take on their minor inherent risks. As for the rest: ‘The timorous may stay at home.’”
sentatives, executors, successors, etc. as applicable. The trial court refused to enforce the agreement against Daniels under Code Civ. Proc., § 1281.2, subd. (c), on the grounds Daniels was a third
party to the agreement and could not be compelled to arbitrate her wrongful death claim, and there was a possibility of conflicting rulings on common issues of fact and law if the survivor claims were
Short(er) takes
Arbitration; Code Civ. Proc. § 1281.2, subd. (c); enforcement of agreement against non-signatories in wrongful-death cases: Daniels v. Sunrise Senior Living, Inc. (2013) __ Cal.App.4th __ (4th Dist., Div. 2.) Plaintiff Norma Daniels sued the owners and operators of a residential senior care facility for elder abuse and other claims, arising from the death of her mother, Margaret Barcenas. When Barcenas became a resident of the facility at age 92, Daniels signed a residency agreement with the facility as Barcenas’s attorney in fact, under a durable power of attorney and durable power of attorney for health care. The residency agreement included an arbitration clause stating that by entering into the agreement, “you” agree to arbitration of all claims arising from the residency. The clause stated that it bound all parties to this agreement and their spouse, heirs, repre-
FEBRUARY 2013
The Advocate Magazine — 83
Appellate — continued from Previous Page
arbitrated but the wrongful death claim was not. Affirmed. Daniels signed the residency agreement in the capacity of
Barcenas’s attorney in fact, not in a personal capacity, and there was no evidence she intended to waive her personal
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right to a jury trial on a wrongful death claim. (The court distinguished cases dealing with the arbitration of medical malpractice claims under Code Civ. Proc., § 1295, Herbert v. Superior Court (1985) 169 Cal.App.3d 718 (Herbert) and Ruiz v. Podolsky (2010) 50 Cal.4th 838 (Ruiz) [nonsignatories to arbitration agreement must arbitrate their wrongful death claims against health care provider when decedent agreed to arbitrate medical malpractice claims pursuant to § 1295, the wrongful death claims are based on medical malpractice, and the agreement was intended to bind wrongful death claimants].) The court held that Herbert and Ruiz have no bearing on third-party wrongful death claims outside the context of section 1295. It also concluded that the trial court did not abuse its discretion in determining there was a possibility of conflicting rulings on common questions of law and fact if the survivor claims but not the wrongful death claim were ordered to arbitration. (§ 1281.2(c).)
Negligent infliction of emotional distress; bystander liability; failure to perceive cause of injury: Fortman v. Förvaltningsbolaget Insulan AB. (2013) __ Cal.App.4th __ (2d Dist., Div. 3.) In Thing v. La Chusa (1989) 48 Cal.3d 644 (Thing), the Supreme Court established three mandatory requirements to state a claim for negligent infliction of emotional distress (NIED) under the bystander theory of recovery. A plaintiff must (1) be closely related to the injury victim; (2) be present at the scene of the injury-producing event at the time it occurs and be aware that it is causing injury to the victim; and (3) as a result suffer serious emotional distress. In this case the plaintiff witnessed the death of her brother while they were scuba diving. At the time of the accident, plaintiff thought that her brother had a heart attack. She later learned that a plastic flow-restriction insert manufactured by defendant had become lodged in her brother’s regulator, preventing him from getting enough air to breathe while underwater. The trial FEBRUARY 2013
court granted the company’s motion for summary judgment, and the Court of Appeal affirmed, finding that plaintiff could not satisfy the second Thing requirement, because she could not experience a contemporaneous sensory awareness that the company’s defective product was the cause of her brother’s injuries.
Statute of limitations; claims against decedent’s estate; statutory conflicts; newer and more specific statutes control over older, more general statutes: Allen v. Stoddard (2013) __ Cal.App.4th __ (4th Dist. Div. 3.) Probate Code section 9353 gives claimants 90 days from the rejection of the claim by the decedent’s estate to file suit. Section 366.3 of the Code of Civil
Procedure gives claimants a year after the decedent’s death to file suit. These statutes conflict on how much time a claimant against an estate has to file suit based on a promise to make a distribution from the estate, such as a contract to make a will. Under the longstanding rule of construction that newer and more specific statutes take precedence over older and more general statutes, the court concluded that it is section 366.3’s time limit that controls, and therefore plaintiff ’s suit, filed 91 days after his claim was rejected by the estate, was timely. Claims against public entities; manner of presentation of claims; substantial compliance not sufficient: Dicampli-Mintz v. County of Santa Clara (2012) __ Cal.4th __ (Cal. Supreme).
Government Code section 915, subd. (a) prescribes the manner of presenting a claim to a public entity. It requires that the claim be delivered to the clerk, secretary, or auditor of the entity, or by mailing it to one of these officials “or to the governing body.� Section 915, subd. (e) states that a misdirected claim will be deemed to comply with these requirements if it is actually received by the clerk, secretary, auditor, or board of the local public entity. Here, plaintiffs personally delivered a letter to a county-owned hospital’s Risk Management Department which set forth the basis for the plaintiff ’s claim. The letter included a request that it be forwarded to the hospital’s insurance carrier, but did not request that it be forwarded to any of the statutorily-designated recipients stated in section 915.
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Appellate — continued from Previous Page
In a later suit the trial court granted summary judgment for the County based on non-compliance with section 915.The Court of Appeal reversed, finding that the plaintiff had substantially complied with the statutory requirements by presenting the letter to the County department most directly involved with the processing and defense of tort claims against the County. The Supreme Court reversed, unanimously holding that substantial compliance with section 915 is not sufficient, and that courts may not rewrite the statute to broaden or loosen its requirements concerning the presentation of tort claims to public entities.
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Arbitration; judicial review of arbitration awards; legal error; denial of statutory rights: Richey v. Autonation, Inc. (2012) 210 Cal.App.4th 1516 (2d Dist., Div. 7.) Plaintiff Richey was terminated as a sales manager at Power Toyota four weeks before the expiration of his approved medical leave under the California Family Rights Act (“CFRA”). Richey’s claims were submitted to arbitration under the employer’s mandatory arbitration agreement. That agreement provided, in part, that “resolution of the dispute shall be based solely upon the law governing the claims and defenses set forth in the pleadings.” The arbitrator denied Richey’s CFRA claim under the so-called “honest belief ” or “honest suspicion” defense. The arbitrator found that under that defense, “an employer who honestly believes that it is discharging an employee for misusing FMLA [leave] is not liable even if the employer is mistaken.” The arbitrator decided that the manager who fired Richey may have been mistaken, but did so for a legally permissible, non-discriminatory reason. The trial court refused to vacate the award in favor of the employer, and Richey appealed. Reversed. The court acknowledged that it is within the power of the arbitrator to make a mistake either legally or factually, and therefore the general rule is that a court may not review the merits of the contro-
versy between the parties, the validity of the arbitrator’s reasoning or the sufficiency of the evidence supporting the arbitration award. Nevertheless, the law is also that, “an arbitrator exceeds his or her power within the meaning of Code of Civil Procedure section 1286.2 [the statute delineating the grounds on which an arbitration award may be vacated – including “the arbitrators exceeded their powers”] and the award is properly vacated when it violates an explicit legislative expression of public policy, or when granting finality to the arbitration award would be inconsistent with a party’s unwaivable statutory rights. The California Supreme Court has recognized “that an arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA because the enforcement of such rights was for the public benefit and was not waivable.” Under this rule, the Court held that the arbitrator erred in relying on the honest-belief defense, which is not properly part of the CFRA. Rather, it was part of the burden-shifting framework adopted for employment-discrimination cases under Title VII, which is not a part of the FMLA or CFRA framework. Rather, the rule in California is that “an employer may not, in terminating or failing to reinstate an employee who has been granted CFRA leave, defend a lawsuit from that employee based on its honest belief the employee was abusing his or her leave. Instead, the employer must demonstrate evidentiary facts sufficient Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. His practice emphasizes appellate support for the Southern California trial bar and insurance bad-faith litigation. He is the editor-in-chief of the CAALA Advocate magazine and a contributing author of the Rutter Group’s Insurance Litigation practice guide.
to carry the burden of proof imposed by CFRA and FMLA.” The court held that the arbitrator’s award must be vacated. “Where the parties have agreed the arbitrator will resolve any claim ‘solely upon the law’ and the pur-
ported legal error goes to both express, unwaivable statutory rights (the guarantee of reinstatement) and the proper allocation of the burden of proof, judicial review is essential to ensure the arbitrator has complied with the requirements of CFRA.”
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From the President Scott Cooper
Orange County Trial Lawyers Association
Back to the basics in Orange County On February 8, the Constitutional Rights Foundation, Orange County (CRF-OC) will hold its annual awards luncheon for its high school Mock Trial program. The CRF-OC is a non-profit organization whose mission is “to involve and empower youth to become active, responsible citizens.” They use a variety of instructional programs outside the classroom to accomplish this mission, including hands-on experiences with various aspects of government, such as the judicial system. In the Mock Trial program, high school students from Orange County, Los Angeles County, and many other counties throughout California form teams and compete as lawyers, witnesses, and court personnel in a complete (though condensed) trial before a judge and attorney scorekeepers. The teams are coached by practicing attorneys from the community, along with teacher coaches from the schools. Last November, I had the privilege of keeping score at this year’s Mock Trial competition at the Orange County Superior Court. For those of you who haven’t participated in this program, whether as a judge, scorekeeper or coach, I suggest you do so at your next opportunity. For trial lawyers practicing in this age of lawyer jokes, tort reform propaganda, and shrinking court access (due to shrinking court budgets), seeing these high school students engage in the art of trying a case provides a nice back-to-the-basics reaffirmation of the simple power of the trial. You will also be impressed by the commitment and talent displayed by the high school participants. As I’ve heard more than one judge say, many of these kids perform better in the courtroom than lawyers who have been practicing for years. Good for everyone
I’m not recommending this just because it’ll be good for you – it’s also
88 — The Advocate Magazine
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important for the students. They are at a stage where they are just learning about trial law and, maybe more importantly, the judicial process. Plaintiffs’ trial lawyers can, of course, provide valuable advice on their courtroom strategies and presentation, but we can also provide broader insights into the importance of the trial by jury to our system of justice and democracy. These students are constantly bombarded with corporate America’s attempts to tear down the jury trial, and it is crucial to get them our message while they are in their early years of critical thinking and while they are forming their opinions on these issues. The Constitutional Rights Foundation also holds a Law Day and Constitution Day, during which high school students participate in workshops to explore constitutional issues affecting their daily lives. The Law Day workshops allow discussion and debate with practicing attorneys moderated by judges, and these lawyers and jurists challenge the students to critically examine their own beliefs on the issues. Here again, plaintiffs’ trial lawyers can offer unique perspectives. In particular, we can educate these students on the oft-forgotten Seventh Amendment and its guarantee of a right to trial by jury. We can explain not only the Constitutional underpinnings of the right, but also the practical safeguards afforded by jury trials. The students need to understand how trial by jury is a crucial bulwark against corporate and government malfeasance and oppression. We can also participate in these programs to ensure the students understand that the judiciary is the co-equal third branch of government and needs to be treated that way. It’s not simply another governmental department or division, as the recent funding battles make it seem. A fundamental purpose
of our Constitution’s tri-partite government is to ensure a system of checks and balances that keeps any one of the branches from gaining too much power. Thus, the judicial branch has certain constitutionally mandated powers and duties. This holds true for not only the federal judiciary, but also California’s courts under our state constitution. As the recent, drastic cuts to California’s judicial branch demonstrate, the courts are too beholden to the other two branches for their funding, creating a dangerous dependency. By choking off adequate resources, the executive and legislative branches threaten the very ability of the courts to serve the public and fulfill its constitutional obligations. And as we have seen firsthand, these cuts can prevent the courts from timely and adequately processing our clients’ cases, either delaying or denying access to the only source of justice available to them. Our efforts to educate on these issues should not end with the students. As the guardians of the civil justice system, we need to be on the front lines of the battle seeking adequate funding for the courts. Many of our legislators, and certainly a vast majority of the general public, don’t understand either the gravity of the crisis or the implications of a crippled court system. We need to educate our legislators and the general public much in the same way we should help educate the high school students who may not yet have a vote in the process but who will in the near future. You can find more information on the Constitutional Rights Foundation, Orange County at www.crfoc.org, and the Constitutional Rights Foundation in Los Angeles at www.crf-usa.org. For more information on OCTLA and its events or activities, visit us at www.octla.org or call OCTLA at 949-916-9577.
What works for voir dire in Orange County
Plan for a voir dire of no more than thirty minutes if you’re called for trial in Orange County. That’s the consensus of an Orange County panel of eight superior court judges sitting in civil cases. While the panel agreed there are exceptions, and at least one judge indicated he tries not to limit voir dire (“It’s really the lawyers’ show, not mine”), most of the jurists spoke repeatedly of the need to “keep it short” and agreed that in most trials “less is more.” The panel, assembled in January for a Trial Lawyer Masters Program by the American Board of Trial Advocacy (ABOTA) and moderated by Hon. Thierry P. Colaw, included Hon. Gail A. Andler, Hon. John C. Gastelum, Hon. Derek W. Hunt, Hon. David T. McEachen, Hon. Jamoa A. Moberly, Hon. Robert J. Moss, Hon. Steven L. Perk and Hon. Luis A. Rodriguez. While the judges were mindful of the changes made in 2011 to the Code of Civil Procedure section 222.5 that prohibits judges from establishing a blanket policy of a time limit for voir dire, they noted that judges ultimately retain the discretion to set reasonable time limits. In at least half of their courtrooms, 30 minutes for each side seems to be the “reasonable” amount of time. Speaking to a mixed audience of plaintiff and defense attorneys, two of the judges noted that by the time the defense gets its shot at the prospective panel, the judge and plaintiff counsel have both questioned them and the questioning can easily become redundant. “You really need to keep track of who was asked what and avoid unnecessarily repeating the same questions,” cautioned one judge, who noted that while he does not establish strict time limits, he will cut off the questioning when he feels “we’ve already been over this.” Another suggested that attorneys be ready with some interesting questions designed to make jurors open up about themselves rather than
focusing on specific biases they are afraid will affect this case. “If all your questions are case specific, there’s a pretty good chance the Court or opposing counsel will already have asked those questions. Now what are you going to ask?”
The mini-opening statement
Immediately preceding your voir dire, be prepared to give a five-minute mini-opening statement. Several of the judges indicated that they require it and only one said that he steadfastly prepares his own statement of the facts to read to jurors. Most find the lawyers’ statements are more useful and interesting to jurors than the court reading its own statement. Several judges stressed that every panel of prospective jurors has several citizens who have decided they don’t want to serve, yet are drawn in by a good story told by the lawyers in the mini-openings and change their minds about serving. “I can see it in their faces and by how they stop fidgeting when they get drawn in by the attorneys,” said one of the veteran jurists. All of the judges indicated that they tell counsel in the pretrial conference to be ready for a mini-opening statement, but that some attorneys still show up ill-prepared for this opportunity to prime the jury. While there was diversity of opinion on what factors made for a good voir dire, there was near unanimity by the jurists on one question. Was voir dire, indeed, the most important part of the trial? Yes. The program was held January 18 at Chapman University School of Law, Orange. www.ocabota.com. — Richard Neubauer for Advocate
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The Advocate Magazine — 89
From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
Consider the source: From the A surprising article Executive Director about medical malpractice
Stuart Zanville Believe it or not, the Wall Street Journal CAALA reports on mistakes that should never happen in medicine I’ve always believed you must consider the source before accepting something as the truth. In political advertising, the easiest way to determine whether a ballot measure is good or bad is to ignore the TV spot and look at who supports the the commercial. initiative or is paying forZanville Stuart I feel the same wayCAALA about media coverage of trial lawyers and the consumers they represent.
From the Executive Director
The author Gamal Hennessy wrote “Always consider the source of your advice. Advice cannot be neutral; the source of advice is just as important as actual words.”
A grain of salt
That’s why I take with more than a grain of salt any news story I see about trial lawyers that is reported on Fox News or in the Wall Street Journal. Shame on you if you believe that Fox News is going to be “fair and balanced” when it comes to coverage of the trial bar and sadly, the same can be said about the venerable Wall Street Journal. As recently as July, 22, 2012, the Journal editorialized that “Like 19th century marauders, the trial bar attacks any Stuart Zanville business it thinks will cough up money in Consumer Attorneys Association of Los its Angeles raids.” According to Joanne Doroshow of the Center for Justice & Democracy, a Wall Street Journal editorial last December “promoted the American Tort Reform Association’s release of its 2012/2013 ‘Judicial Hellholes’ report to attack state court systems, specifically California, for so-called ‘frivolous’ By Stuart Zanville
From the Trial lawyers need a Executive Director mediator who was one.
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Giving credibility
So I must admit I was a bit skeptical when I saw the headline, “Surgeons Make Thousands of Errors,” above a front-page article that ran in the Wall Street Journal on December 20. The article reported a new study led by Johns Hopkins University School of Medicine, published online in the journal Surgery. As you know, one of the primary purposes of the work done by trial lawyers is to protect patients from preventable medical mistakes. Judging from this article, it now looks like the Wall Street Journal agrees that patients need protection from doctors and hospitals. The article reported that the Johns Hopkins study looked at cases involving leaving an object inside a patient, wrongsite surgeries, wrong procedures and wrong-patient surgeries. The Wall Street Journal story began: They are known as ‘never events’ – the kind of mistake that should never happen in medicine, like operating on the wrong patient or sewing someone
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up with a sponge still inside – yet new research suggests that they happen with alarming frequency. The article goes on to report that according to the Johns Hopkins study “surgeons make such mistakes more than 4,000 times a year in the U.S.” The article continues: Martin Makary, lead author of the study and an associate professor of surgery at Johns Hopkins, said his team’s estimates are likely low; previous studies have shown that many patients never file claims after errors. And not all items left behind after surgery are discovered. Unlike some complications in medicine, the surgical mistakes are ‘totally preventable,’ according to Dr. Makary. The article continues: By law, hospitals are required to report events that result in a settle-
ment or judgment to the database. Overall, annual rates of surgical ‘never events’ reported to the database have decreased, Dr. Markey said, but that may be in part because hospitals can decide not to name individual doctors on settlements under some circumstances, and thus not report to the practitioner database. Doroshow agrees that the study may underestimate the truth. She writes: But as we know, only a tiny percentage of people injured by malpractice in this country file lawsuits, yet alone get a settlement or judgment that’s reported to the National Practitioner Data Bank. The Johns Hopkins study isn’t the first credible report pointing out how patients have been harmed by medical negligence, but hopefully, critics of med-
ical malpractice reform will take the facts more seriously if they appear in a publication such as the Wall Street Journal. I would be naïve if I thought the article represented a change in the editorial bias of the Wall Street Journal against trial lawyers and the injured people they represent. But at least it’s a start. I’d like to see an editorial supporting harmed consumers instead of their insurers. Or maybe one opposing law that limits compensation to injured patients. That may be wishful thinking, but in the meantime I’ll give kudos to the Wall Street Journal for running an article that seems to be counter to their editorial beliefs. If you have questions or comments about this column, contact me at the CAALA office or by e-mail at stuart@caala.org.
FEBRUARY 2013
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Sacramento Update By Lea-Ann Tratten CAOC Political Director
A look behind, and ahead
Election 2012 was a tremendous success and trial lawyers had an impact by helping elect pro-civil justice candidates throughout the state. Our new year opened with two-thirds majorities in both the state Senate and Assembly for the first time since 1933. And we have a governor whose vision and grit will bring at least temporary stability to our state’s finances with the passage of Proposition 30. Propositions 30, 32, 33 and 39 bucked the big business money and proved that the California electorate values people over corporations. As expected, the top-two primary proved extremely expensive. We emerged victorious in many battles against big-moneyed interests, but at great cost. For our part, Consumer Attorneys of California raised $4 million this election cycle, thanks again to trial lawyers throughout the state. With that revenue in hand, CAOC was able to support Proposition 30 in the General Election as well as the new law approved by voters in the June Primary that altered the state’s term-limit calculus so that lawmakers can serve up to a dozen years in one house, a change we hope will return a bit of stability and sensibility to a Legislature that in recent years has at times gone wanting. In the primary and general, we supported true consumer champions who will change the face of the Senate: Senator Fran Pavley, former Assembly Member Hannah-Beth Jackson, Assembly Member Bill Monning, two-star Gen. Richard Roth and Assembly 92 — The Advocate Magazine
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Member Marty Block. Each one knows the importance of the civil justice system in protecting Californians. In the Assembly, San Francisco Assessor Phil Ting, Hayward City Council Member Bill Quirk, Jimmy Gomez, Al Muratsuchi and Ed Chau emerged from tough battles – with your help – and each promises to be a leader in protecting the civil justice system. Our celebration is tempered by the results in two races: Assembly Members Michael Allen and Betsy Butler both lost nail biters. These friends of civil justice faced tough odds after redistricting left each battling in new territory to maintain their offices. But our overall success on Election Day, which saw candidates backed by CAOC prevail in 27 of 29 targeted legislative races, tills the soil for our work ahead in the Legislature. We have no power without being powerful during election season. To quote Governor Brown, the art of campaign politics and governance “isn’t instant coffee.” Indeed we will need to redouble our efforts, especially in the Assembly, to avoid the re-emergence of the corporate caucus – those Democrats who worked with Republicans to thwart legislation to protect workers, consumers and the environment. Meanwhile, more elections are around the corner. Sen. Juan Vargas is departing the Senate and is bound for Washington; and we have the opportunity to replace him with a legislator friendly to the civil justice system. We have to thank our leadership, in particular 2012 President Niall McCarthy and fundraiser-in-chief, Brian Kabateck, our 2013 president. The time these leaders take from their practices and their families to fight for the good guys is truly humbling. Please thank them, and the more than 300 lawyers and firms that took our calls and answered our pleas to support the political program.
Without their efforts, the rights of consumers and the future of your practice would be more at risk than ever before.
Washington Update By Linda Lipsen
Chief Executive Officer, AAJ
Civil Justice and the Supreme Court
AAJ Public Affairs is monitoring several important civil justice cases pending before the U.S. Supreme Court. The decisions in these cases will have lasting impacts on the rights of injured people and on civil law and litigation. Below is a list of three of these cases and an explanation of why they are important.
American Express Co. v. Italian Colors Restaurant – Mandatory Arbitration
Why it’s important: This case was brought by merchant-businesses alleging that Amex violated federal antitrust laws. Amex moved to dismiss the case, citing a mandatory arbitration clause in the contracts with the merchants which prohibited class actions. If the Court upholds the arbitration clause, corporations can essentially prevent all class actions against them by simply inserting a mandatory arbitration clause in the fine print of their contracts. In many cases, such a clause would prevent all claims, not just class actions, because for many plaintiffs, a class action is the only feasible way to bring a claim.
Comcast v. Behrend – Class Action Certification
Why it’s important: In Wal-Mart Stores, Inc. v. Dukes the Supreme Court handed down one of the most significant class action decisions in decades, limiting the
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ability of employees in a discrimination case to form a class. Comcast v. Behrend will decide how far the WalMart decision extends and whether the plaintiff class must jump through the additional hoop of proving admissible evidence of damages before certification. The Court’s decision will have a significant impact on class actions in all areas of the law, but particularly antitrust class actions, as is the case in Comcast, which have traditionally been certified without requiring admissible evidence of antitrust impact.
Delia v. E.M.A. – Preemption/Medicaid Subrogation
Why it’s important: At issue is whether the anti-lien provision of the federal Medicaid laws preempts a state law which creates a lien upon any tort settlement received by a Medicaid recipient from a third party up to one-third of the settlement. If the Supreme Court upholds the lien, then there is very little incentive for patients injured by malpractice who are insured through Medicaid to ever bring a malpractice action. This case involves a minor who is severely disabled due to malpractice. The State of North Carolina is claiming a lien in the amount of a third of the minor’s malpractice award, which the plaintiffs argue violates the Medicaid Act’s anti-lien provision. After paying court and attorney fees, such large liens would leave most patients with inadequate compensation. 949-916-9577.
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The Advocate Magazine — 93
Law Office Management Michael G. Blum
Six financial hazards every contingency firm should avoid If you don’t create and constantly update a cash-flowLaw statement, your ship could be headed for the rocks Office Management
You went to law school to become a lawyer, not an accountant. But the reality Michael G. Blum is to the profitability of your firm, finance is as almost important as winning cases. Your law school didn’t prepare you for this and most likely, if you had them, your mentors either couldn’t give you what they didn’t have or they didn’t have time for this type of training. The need for business skills now lands squarely on your shoulders, and it frequently creates significant managerial problems for a contingency law firm. But if you know The Six Hazards to Avoid, you can make a great case for your practice’s long-term success.
Hazard #1: Not generating a cashflow forecast.
Just the words can make one tense and irritable. In essence, this is the numbers that identify your anticipated expenses and revenue as well as when those two streams will generate their activity. When is the bill due and when does your next case settle? In which months will cash be short? This Hazard usually expresses itself in three ways: 1) An inability to estimate the firm’s monthly expenditures and revenue 2) An inability to determine if the level of expenditures is met by the level of revenue 3) An inability to determine the sources and timing of revenue In all these cases a firm without a cash-flow forecast is steering blind on the hope of profitability. A forecast, on the other hand, will give you time to see potential problems and give you the opportunity to manage them before they become a nightmare. Once created, the forecast should be reviewed and revised at least once a quarter. If you’d like to see a sample cash flow forecast, you can ask your accountant or see the general form on the next page.
94 — The Advocate Magazine
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Hazard #2: Overstating revenue and being too aggressive on its timing
If you do generate a cash-flow forecast, overstated revenue that is not realized will have significant impact on the firm as expenditures are typically aligned with expected revenue streams. If revenue falls short of forecast, the firm has invariably expended resources in excess of the realized revenue – but it’s too late at that point. The money has been spent, only it never came in. Aggressive timing of receipt demonstrates the same effect as overstated revenue; however, when coupled with overstated revenue, it compounds the detrimental effect on the firm’s financial and working capital health exponentially. A practice, which may not realize its cash situation, is at a serious shortfall until an overdraft from the bank appears, and by that point, it’s too late. Be prudent in your forecasting, be conservative, cautious and practically-minded. Ending up with more cash then you
anticipated is far better than the opposite scenario.
Hazard #3: Not having a dedicated financial officer
If you don’t have a financial officer, or if you use an “office manager” who is unqualified to truly manage the finances of the firm and its relationship with capital sources, you are asking for trouble. If your firm is simply too small for a full- or part-time chief financial officer, consider budgeting for your CPA to spend time with you each month on developing, implementing and managing the financial planning and reporting tools you need to succeed. It’s not something an accountant can do once a year at tax time. Even if you can access your numbers easily, do you really know how they tie into your financial future beyond what your bookkeeper tells you? Can you at a glance know whether a current financial crisis is seasonal, managerial, brief or long – do you know where things could
Last , if someone isn t cused on it, the m will miss opportunities to reduce expenses such as renegotiating rent, reducing artner draws, mo ing sta ize, or cutting back on entertainment, subscriptions, advertisi nd the like.
>Hazard #4: Underestimating operating expenses. Not all expenditures or nds r unexpected events such as contingent liabilities are considered when preparing
Sample Cash-Flow Forecast — General Form
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The Advocate Magazine — 95
Hazards — continued from Previous Page
be tighter or if they are as tight as they can go? Without a dedicated and qualified financial officer (in whatever capacity he/she works for the firm), your practice lacks the ability to generate an insightful financial forecast. For example, typically in the situation where you lack a clear financial picture of the firm’s liabilities and obligations, the payables are not aged to determine the appropriate timing of payment and to maximize trade credit. Additionally, as most firms utilize cash basis accounting, the firm does not have a clear picture as to the extent of their contingent and/or deferred liabilities that are not represented on the payables. If all these terms give you a headache, that’s also a sign you may need someone “qualified” to look at this picture. Additionally, the firm may lack the understanding of how to leverage assets
to finance growth or be aware of capital resources available for financing its capital needs (such as private lines of credit for litigation expenses or monetizing a fee lien from a client who won a money judgment on appeal). Historically, the sudden drop in operating capital has been covered by going into the partners’ pockets and asking for contributions from them. This isn’t the best strategy. Lastly, if someone isn’t focused on it, the firm will miss opportunities to reduce expenses such as renegotiating rent, reducing partner draws, modifying staff size, or cutting back on entertainment, subscriptions, advertising and the like.
Hazard #4: Underestimating operating expenses
Not all expenditures or funds for unexpected events such as contingent liabilities are considered when preparing a
W W W. N E M E C E K - C O L E . C O M 96 — The Advocate Magazine
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Hazard #5: Failing to match the partners’ draws against actual revenue
Partners are accustomed to their lifestyles, and that expense often trumps the financial needs of the firm, leading to loss of productivity, digging into partners’ pockets to cover shortfalls, and increased expenses to regain the momentum prior
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budget. In other words, you plan for typical expenses but not atypical – like the need for an additional employee, an unexpected expert, or capital expenditures for the replacement of a broken copier for which you didn’t plan. It would be wise to create an emergency fund for these unfortunate surprises and to factor that into the cash-flow forecast – including identifying where you will find the additional capital to cover it (e.g. revenue, lines of credit, reducing expenses, etc.).
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to cutbacks. Examining how the partners’ draw affects cash flow for the practice is essential, not only to maintaining stability for the practice, but also for maintaining the partner’s draw – or his/her expected draw. Cash-flow forecasts allow the partner(s) to also see how their draws affect the firm’s financial picture and opens a more rational discussion – one hopes – about how to ensure partner satisfaction and overall firm growth.
Hazard #6: Failing to have clear feesharing arrangements
When you fail to write clear fee-sharing agreements between all of the firms involved in contingency cases, it can result in the firm paying higher referral fees and receiving lower than anticipated revenue. Negotiations erupt over percentages of proceeds, and a situation that can be easily prevented before it occurs is now costing additional resources from the firm’s coffers. The fee-sharing arrangements – how much, when it will be paid, what work is to be done – can first of all be more accurately considered in light of a current financial forecast. You can assess what effect a fee arrangement will have and when. Secondly, looking at the financial arrangements prior to accepting a referral establishes clarity of expectations because you have a contract. This gives your practice the ability to pinpoint this relationship’s effect on your cash flow, rather than relying on assumptions that turn out to be liabilities when you anticipated revenue. Make your contracts clear and clarify your financial future. Michael Blum is a trial attorney and CEO of Appeal Funding Partners, LLC with over 17 years’ experience providing risk mitigation services and non-recourse funding to attorneys and plaintiffs with money judgments on appeal. He has served on the Board of Directors of the CAOC and of the Marin Trial Lawyers Association and regularly speaks to trial-lawyer groups and has written for TLA magazines on the financial management of a contingency-fee law firm. mgblum@appealfundingpartners.com.
Conclusion
Individually, each of these six hazards is enough to drag your firm down financially; collectively, they can sink even the most brilliant trial lawyer’s ship. You
went into law to practice it – addressing these hazards before you run aground on them will help you be more profitable and suffer fewer sleepless nights.
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The Advocate Magazine — 97
Advertiser’s Index Contents Index Advertiser’s ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 DiCaro Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .42 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .84 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .40 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . .72 World Wide Mediators . . . . . . . . . . . . . . . . . . . . . . .48 Announcements and Career Opportunities CAALA Legal Education Center . . . . . . . . . . . . . . . . .73 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .77 CAALA PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Chapman University School of Law . . . . . . . . . . . . . .67 Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Los Angeles Trial Lawyers Charities . . . . . . . . . . . . . .55 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Steven B. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .41 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .50-51 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .19 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Geeting Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .83 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .29 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .17 Michels & Watkins . . . . . . . . . . . . . . .Inside Back Cover Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Advertiser’s Index
Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . .38 Jonnell Agnew & Associates . . . . . . . . . . . . . . . . . . .28 Court Reporters (cont.) Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .61
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98 — The Advocate Magazine
FEBRUARY 2013
Expert Witnesses – Medical Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Expert Witnesses - Technical & Damages Balian & Associates (Retail Industry) . . . . . . . . . . . . .54 Berman, Ron . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Forensis Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 TASA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .85 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Farber, Patrick (Struct. Settle.) . . . . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .49 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Pensions Annuities and Settlements LLC . . . . . . . . . . .58 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Ringler & Associates – Michael Zea . . . . . . . . . . . . .79 Summit Structured Settlements . . . . . . . . . . . . . . . . . .30 The James Street Group (Structured Settlements) . . .57 Graphics/Presentations/Video C Visual Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Executive Presentations . . . . . . . . . . . . . . . . . . . . . .7,37 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Information Service Providers West, A Thomson Reuters Business . . . . . . . . . . . . . . .27 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .63 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .15 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .80 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .46 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Legal Marketing Pro Se Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Trial Survey Group . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Legal Support Services Lion Street Litigation Support . . . . . . . . . . . . . . . . . . .91 USA Express Legal & Investigative Services . . . . . . .66 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .43 Docs on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Glendale Surgery Center . . . . . . . . . . . . . . . . . . . . . .53 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .93 North Valley Eye Medical Group . . . . . . . . . . . . . . .28 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12-13 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
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Consumer Attorneys
ASSOCIATION OF LOS ANGELES
Consumer Attorneys Association of LA CAALA 800 West Sixth Street,#700 Consumer Attorneys A L A Los Angeles, CA 90017 CAALA (213) 487-1212 Consumer Attorneys www.caala.org A L A
February 12, 2013 Attorney Mixer 6:00 - 8:00pm El Torito Grill 9595 Wilshire Blvd. Beverly Hills
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February 13, 2013 How to Use PowerPoint – Advice from Bruce Broillet 12:00 – 1:00pm Online Webinar February 21, 2013 New Court Procedures Seminar 5:00 – 8:00pm Biltmore Hotel 506 S. Grand Ave. Downtown Los Angeles
Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Feb. 7, Mar. 7 Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Feb. 22, Mar. 21 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Feb. 22, Mar. 21 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Feb. 19, Mar. 19 Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org February 28, 2013 Medicine in the Law Tustin Ranch Golf Club Tustin March 28, 2013 So, you want to sue the Government? Tustin Ranch Golf Club Tustin
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CAALA offers four attorney-member-only list serves
From surviving as a new lawyer to getting politically active, these list serves are designed to meet specific needs of CAALA members
CAALA-LAW List Serve CAALA-LAW List Serve is for CAALA Attorney Members to confidentially exchange important work-product information and advice with each other, relating to: trial strategy, references and background of experts, judges, defense attorneys, defendants, arbitrators, and mediators; case evaluation information; recent developments in the law; court rules; pleadings; tactics; attorney referrals, legal research, legal questions and other attorney work-product information.
CAALA-LIFE List Serve CAALA-LIFE List Serve is for CAALA Attorney Members to confidentially exchange experiences, ideas and information related to their legal practice or the business of law that may not be defined as work-product. Examples include: congratulatory messages, questions and comments relating to products and services, employment opportunities, office space rentals, and messages about individual experiences related to the practice of law.
CAALA-POL List Serve CAALA-POL List Serve is for CAALA Attorney Members to confidentially exchange messages that are a civil exchange of information, ideas and opinions regarding politics (local, state, national or international); current events, religion and non-legal general topics that are of interest to the CAALA membership.
CAALA-NEWLAWYER List Serve CAALA-NEWLAWYER List Serve is for Attorney Members of CAALA who have been admitted to the practice of law for less than 10 years to confidentially communicate and exchange with each other information, ideas, advice, guidance, etc. related to the practice of law. To join any of CAALA’s List Serves you must maintain current status as a plaintiff attorney member of CAALA. You are also required to sign The Joint Prosecution/Confidentiality Agreement form on an annual basis. Please visit the ‘Litigation Resources’ tab on the CAALA Web site for more information or contact the CAALA Office at (213) 487-1212 to become a member or join a List Serve.
New CAALA Affiliate Vendors Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects.
Allen Massihi, Podiatric Inc. 311 N. Verdugo Rd. Glendale, CA 91206 (818) 748-7319 Contact: Allen Massihi Email: amassihi@yahoo.com
CATEGORY: Podiatry and Orthopedics. Podiatric physician/surgeon specializing in injuries and treatments of foot and ankle. Surgeries/treatments rendered on lien basis.
Mark D. Bernhard, D.O., Inc. 1060 E. Green Street, #107 Pasadena, CA 91106 (626) 584-1112 Contact: Yenni Castro scheduling_frontoffice@markbernharddo.com www.markbernharddo.com
CATEGORY: Orthopedics, Pain Management & Physical Therapy. Physician board certified in Physical Medicine & Rehabilitation. EMG’s, NCV’s Xray, Pain management, Social Security, IME, QME. Comprehensive reports, multiple locations in California, multilingual staff.
Power Liens 10215-B Santa Monica Blvd. Los Angeles, CA 90067 (800) 680-5526 Contact: Jason Ramin Email: jramin@powerliens.com www.powerliens.com
CATEGORY: Lien providers in the fields of Chiropractic, Orthopedics, Pain Management & Physical Therapy. Free directory of doctors on liens all over California and Arizona. Not limited to chiropractors; many other specialists are included.
FEBRUARY 2013
The Advocate Magazine — 99
From the President Lisa Maki
Consumer Attorneys Association of Los Angeles
All we are is dust on the wings
In the age of employment-arbitration agreements, employees are not so “equal under the law”
“His talent was as natural as the pattern that was made by the dust on a butterfly’s wings. At one time he understood it no more than the butterfly did and he did not know when it was brushed or marred. Later he became conscious of his damaged wings and of their construction and he learned to think and could not fly any more because the love of flight was gone and he could only remember when it had been effortless.” Ernest Hemingway wrote this in a fine book called, A Moveable Feast. He was speaking of his friend, F. Scott Fitzgerald, perhaps sensing the humanity in what first appeared to be a God-like creature to Papa Hemingway, at least when they first met.
Broken wings
We see broken wings in our practices all the time. And in life: The threelegged dog who doesn’t know he was supposed to have four legs as he runs around with the others; the blind man who confidently walks across the street with his smiling baby on his back; those afflicted with Down syndrome, yet are some of the most loving and happy people I know. In my practice I meet a lot of people who have lost their jobs. It’s pretty much like having both wings broken – and your legs. After being treated like a criminal and walked out of the workplace in front of their co-workers, many of them cannot comprehend how much butterfly dust they have lost. The outside stuff goes. First, health insurance (because they can’t afford COBRA payments). Then, the car, and many times, the house. There are families living on the street now because the breadwinner lost his or her job. It happens quickly.
100 — The Advocate Magazine
FEBRUARY 2013
Equality under the law
I used to know that we could go to the house of justice or the courthouse and explain what happened. We had facts, and we had the law. No need for guns! Trial by jury is how civilized folks resolve disputes. I knew it would take awhile, but if the law and the facts were on our side all would be good because an impartial panel of persons would be left with the case, and I trusted the jury and the court to guide them in this process. It used to be that everyone had a right to trial by jury. You could be the poorest or richest person in the land. It was a right that was guaranteed by the Seventh Amendment, no less: [W]hat many of those who oppose the use of juries in civil trials seem to ignore [is that t]he founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.\ (Chief Justice William Rehnquist in Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 343.) Well, I’m not sure what happened but employees are not so equal under the law anymore. Businesses have more power and can keep cases from being heard publicly in front of a jury. This is because many employers have new hires sign something called an “arbitration agreement” on their first day of work. Some introduce it later. The “agreement” is long and has words in it that the average person will not understand and will need a lawyer to review and explain to them. Eager to start working, and having signed a pile of other documents, most employees just skim the “agreement.”
Later, they are shocked when they find out that they have given up their Constitutional right to a jury trial. Many courts say, yes, well, an arbitration agreement is a contract of adhesion, but that is ok.
Paid justice?
I often wonder if those courts that think that enforcing an agreement they know the new employee has no choice but to sign would also allow an employer to require new hires to give up their Second Amendment rights? What is next? Sure, employers say they have to fork over a ton of dough to the arbitrator to decide whether or not the employer did anything wrong, but that seems very fishy to me. Paid justice? I certainly wouldn’t want the other side in a dispute paying someone to make a decision. Maybe for business agreements or after a dispute has in fact arisen. But for civil rights claims, constitutional claims, or discrimination cases? Does anyone else feel bothered by this? I hope you do. I love our Constitution and our country but the next time you are faced with an arbitration agreement, fight it or support the organizations that are working to end arbitration of civil rights cases. You just may save another butterfly, along with your Constitutional rights and our courts. Let Freedom Ring!
OVER OVER TEN FIGURES IN VERDICTS & SETTLEMENTS 8-Figure Verdict Verdict Cerebral Palsy
8-Figure Settlement Wrongful W rongful Death
7-Figure Verdict Verdict Brain Damage
7-Figure Arbitration A Award ward Misdiagnosis
7-Figure Verdict Verdict Spinal Cord Injury
7-Figure Settlement Birth Injury
7-Figure Settlement Baby Injury
7-Figure Settlement TTransplant ransplant
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SHIRLEY WATKINS
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