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Journal of Consumer Attorneys Associations for Southern California Advocate Research

The subconscious bias against corporate defendants

Is your trip-and-fall case worth more at a local hardware store or at The Home Depot?

Perspectives Perspective from the

Bench

Insights into the life of a judge, the transition from bar to bench, what the court funding crisis means to you, and how you can achieve better results in the courtroom. Also Trial Practice Making workers’ comp work for you and your client

Trial Practice Bad parenting does not always equal tort liability

An afternoon with former Justice Carlos Moreno

Trial Practice Don’t inadvertently waive your jury

Trial Practice DOMA and Prop 8 struck down: What does it mean for lawyers?

August 2013


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AUGUST 2013

The Advocate Magazine — 5


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Contents Volume 40, Number 8, AUGUST 2013

Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, 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

First Vice President Ted Wacker

Second Vice President Vincent Howard Third Vice President H. Shaina Colover

B. James Pantone

Parliamentarian Jonathan Dwork Immediate Past President Douglas Schroeder

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

POSTMASTER:

Send address changes to ADVOCATE

c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine

Features:

12

Reflections on wearing a robe

Everything changes once a lawyer becomes a judge, from how people act towards you to how you think about legal problems. Hon. Anthony J. Mohr

22 Endgame strategies: Present & Future

1

Shifting endgames in the current court climate may require new litigation strategies. Hon. Mary Thornton House

28

Navigating underfunded courts

1

There will be longer waits for hearings, while trial dates and trials will stack up – a look at the sad facts. Hon. Mary Ann Murphy

36 California’s premier jurist, Justice Stanley Mosk A look at the life and legacy of a Los Angeles legal icon. Hon. Arthur Gilbert

47 Bad parenting does not always equal tort liability

California law may limit parental liability for harms their children cause. Jeremy Cloyd

56

Post-trial motions in expedited jury trials Hon. Alex Ricciardulli

72

1

At look at your limited options if an expedited trial doesn’t work out as expected.

Thoughts on teaching the Constitution

1

Seeing the U.S. Constitution through the eyes of foreign students. Hon. Elizabeth Allen White

84 DOMA and Prop 8 struck down: What does it mean for lawyers? A look at the gay struggle for legal equality and how it is impacted by the Supreme Court’s July decisions. Donna Bader

92 An afternoon with former Justice Carlos Moreno

Recently nominated as U.S. Ambassador to Belize, the justice reflects on the making of judicial decisions. Donna Bader

98 Making workers’ comp work for you and your client

The new rules of workers’ comp and how WC intersects with personal injury law. Jonathan M. Brand

104 “Objection, 352!” shouted Juror #8

The importance of keeping your case presentation simple and “on theme.” Hon. James A. Steele

Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: advertising@theadvocatemagazine.com Rate card available online at www.theadvocatemagazine.com

Submitting articles for publication: Check the annual editorial calendar at www.theadvocatemagazine.com to see when your legal topic would be most appropriate. Articles on time sensitive matters are welcome throughout the year, as are opinion columns, humor pieces, human-interest stories, lifestyle and personality features. Send your article as a WordPerfect or Word document attachment to e-mail: editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: cindy@caala.org

AUGUST 2013

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106

Cultural competence in changing times

How cultural differences may affect judicial outcomes. Hon. Huey Cotton

108

Quantifying the subconscious bias against corporate defendants

An Advocate exclusive – A research study on how bias can impact the value of a case. Chris Denove

110

Don’t inadvertently waive your jury

Streamlined civil system makes it imperative that you timely request a jury. Gary Eto

Departments:

8

A BOUT T HIS I SSUE Perspectives from the bench Sitting judges discuss the budget crisis, offer insights into what being a judge is all about, and provide practical tips to improve your courtroom performance.

Joseph Barrett

112

Appellate reports and cases in brief Recent cases of interest to members of the plaintiffs’ bar.

Jeffrey Isaac Ehrlich

118

F ROM

THE

E XECUTIVE D IRECTOR

CAALA C ONNECTION C ENTER Welcoming new members who have joined CAALA

122 123

D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS

F ROM

THE

P RESIDENT

Orange County Trial Lawyers Association

Twoscore and Ten Years Ago. . .

CAALA R ESOURCE C ENTER CAALA VEGAS 2013: Videos Available On-Demand Learn what CAALA can do for you: List of affiliate vendors.

CAALA VEGAS

Stuart Zanville

G OVERNMENT R EL ATIONS B ULLETIN Updates from Sacramento and Washington.

121

Consumer Attorneys Association of Los Angeles Convention offers proof that everyone can work together to keep the courts functioning.

119

120

124

F ROM

THE

P RESIDENT

Consumer Attorneys Association of Los Angeles

Ai Weiwei: A living example of the meaning of justice.

Lisa Maki and Hon. John Shepard Wiley, Jr.

What lawyers can learn from historic arguments.

Scott Cooper On the cover: Main Image: Female Judge Seated in Courtroom | IStockphoto | www.thinkstockphotos.com Top Image: In the Hardware Store | IStockphoto | www.thinkstockphotos.com

AUGUST 2013

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Joseph M. Barrett

Joseph M. Barrett Associate Editor

Perspectives from the bench Judges discuss the budget crisis, offer insights on what being a judge is all about, and provide practical tips to improve your courtroom performance It is a very volatile and uncertain era to practice law in California. Los Angeles County has been especially challenged by budget cuts and years of ever-dwindling resources for an already burned court system. Lawyers now face unique challenges in representing their clients: No court reporters downtown unless you pay for them, and most personal-injury cases being shuffled from throughout the county to a handful of downtown courts that are doing everything they can to provide justice in those cases. It is illuminating to gain the perspective from the bench in this restructuring process. It is my hope that through this issue, valuable insights will be gained regarding the pressures, decisions, and implementation plans for this new era. As always, Perspectives from the Bench provides an eclectic view of what being a judge is all about, as well as some practical tips for your practice. There is a real potpourri of topics this year. Judge Mary Ann Murphy worked extremely hard to find valuable information to help our readers understand the situation downtown in the civil courts. Talking with fellow court leaders, administrators and management, Judge Murphy focuses this year on the topic that

8 — The Advocate Magazine

AUGUST 2013

is buzzing between the Bar and the bench, on how things are working now, and how our members can best work with this “new normal” for personal injury litigation in this overwhelmed system. Judge Huey Cotton provides a different take on the changing courts. With most personal injury cases being consolidated to downtown and then assigned for trial in various courthouses across the County, Judge Cotton points out that this will present challenges to litigants and their lawyers in connecting to juries. Judge Mary Thornton House speaks to the shifting paradigm trial lawyers and litigants face with the new court system. The path to success has changed. Different challenges are built into the system now: more random assignments, less predictability and more delays create not just pressure but also opportunities for success. Judge Thornton House takes a fresh view of this new chess match between adversaries and the court, and tries to offer solutions. The Honorable James A. Steele wrote a beautiful article about the importance of having a readily understood message and building your presentation around it for successful trials. Judge Steele highlights the gift Abraham Lincoln displayed as a win-

ning trial lawyer: Knowing why you’re in the courtroom and staying focused on that issue so the jury sees what the real fight is about. The Honorable Alex Ricciardulli, who writes a regular MCLE column in the Daily Journal, shares with us Motions for new trials & appeals in expedited jury trials(EJT), a very timely subject. The EJT is a new method of resolving limitedjurisdiction disputes, and although the idea is to have such cases resolved expeditiously and efficiently, sometimes there are good reasons to consider post-trial options. Judge Ricciardulli explains what post-trial options are available. In Thoughts on teaching about our Constitution, Judge Elizabeth Allen White provides a historical perspective of our Constitution and how it imbues our way of thinking not just as lawyers and jurists, but as Americans. Judge White’s perspective illustrates how Americans see their rights as citizens in a much different way than do citizens of countries with different legal systems and legal histories. Judge Anthony J. Mohr reveals to the reader how life changes rapidly when a lawyer becomes a judge. From personal privacy issues to how one’s view of legal disputes changes to what justice really is, the transition to the bench after a career as a lawyer can be both jarring and exhilarating. Finally, Presiding Justice Arthur Gilbert gives us California’s premier jurist, Justice Stanley Mosk. Justice Gilbert reminds us how important the legacy of Justice Stanley Mosk is to California. Stanley Mosk addressed the changing social rules of society in his opinions, but always guided us towards a better and fairer society. Joe Barrett is a partner with The Cochran Firm, and is an experienced trial lawyer 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 has served CAALA on the Board of Governors since 1999 and currently serves on the CAALA Executive Committee.

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10 — The Advocate Magazine

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Hon. Anthony J. Mohr Los Angeles Superior Court

Reflections on wearing a robe Working on the bench is the ultimate reality show What has the bench done for me? What has it done to me? After 19 years, the answer remains a work in progress, despite the fact that I could have given you a response within a month of my appointment. There is no pat answer. Depending on the day, the experience can be challenging, empowering, energizing, enervating, enlightening, heartrending, invigorating, humbling, upsetting – and fun. I’ve walked off the bench and shed tears. I’ve taken sudden recesses so as not to break out laughing in open court. There have been occasions when I’ve wished I could become friends with the parties. Other times I’ve been delighted when a trial ended, and I didn’t have to see the litigants again. After some of my rulings, I’ve repaired to chambers secure in the belief that I had done the right thing. But sometimes I knew that whatever I’d do would be wrong.

Change from the get-go

You start to change moments after you learn of your appointment. You absorb the news alone, almost always via a telephone call from the Governor’s appointments secretary, who reads a proposed press release to you to make sure the facts are right and then reminds you to say nothing until the release is issued. Protocol dictates that the Governor, not you, makes the announcement. The wait isn’t long, at most a week. For me it was two days. Compare that to Britons who are awarded the Order of the British Empire. They have to wait up to four months until the Queen makes the official announcement. While the story may be apocryphal, 20 or so years ago, a lawyer shouted the news to the rooftops moments after getting the storied phone call. The Governor found out and rescinded the appointment. The first day on the job was thoroughly different from what I expected. 12 — The Advocate Magazine

AUGUST 2013

Jack LeVan, then the head of the Judicial Support Division, handed me a threering notebook that contained several pockets, each full of forms. The first pocket seemed normal enough: Form I-9, ID card information, emergency contact information, Worker’s Compensation Act: Designation of Personal Physician. But as I read that last document, Jack said in his avuncular voice, “This is the form for the name of your doctor if you get sick, but if you get shot, we will take you to County General, which is where you would want to go. They’re the best for treating gunshot wounds.” He continued, “So far, no judge has been shot in Los Angeles. A juror was killed at CCB (The Foltz Criminal Courts Building), but that was a stalking incident and he would have been killed outside if not inside. That is it. But we want to be careful about your safety.” My shiver was involuntary. The phrase “so far” controlled the sentence. I had not thought of bullets when I filled out my application for a judgeship. (Since then, one of our commissioners – a good man who had a family law assignment – has been gunned down, along with his wife, outside his home in San Bernardino County. The shooter remains at large.) LeVan made it clear how seriously the court regarded our safety – judicial security as we call it. It might be a good idea, he suggested gently, to vary my route to work. The little windowless conference room where we were sitting, somewhere in what’s now called the Stanley Mosk Building, seemed to grow smaller.

“I work for the state”

I felt jolted from one world into another. I had practiced business litigation in Beverly Hills. No one threatened my life when I filed a motion to compel further responses to interrogatories. Now this man was advising me to get a concealed weapons permit. At my first courthouse,

where I invariably arrived at the same time as two other colleagues, I’d watch them take their guns and holsters from the backseat and don them before we’d call the judges’ elevator. During bar conventions, my colleagues and I wore our name tags when we wandered through the town. At judges’ conventions, we’re cautioned to remove our badges the moment we leave the hotel, and there are no “Welcome Judges” banners over the porte cochere. If someone hits up on you at the gym, it’s smart not to give your occupation. Just answer, “I work for the state.” Jack had just the right attitude for orienting a person who knew nothing about the court but was technically one of his bosses. As if to calm me, he turned to another pocket that contained the “DMV Confidentiality of Home Address” and the Registrar of Voters’ “Confidential Voter Registration and GC 6254.4,” which would enlist those agencies in making my personal information disappear from the public record. Anyone inquiring would learn that my address was the courthouse, if they’d learn anything at all. Next Jack passed over a notebook full of criminal and civil trial guides for conducting voir dire, taking guilty pleas, handling deadlocked juries, and sentencing defendants. Another notebook included court-policy memos and memoranda on various points of law that judges often confront. From the Center for Judicial Education and Research came a host of bench books on topics ranging from domestic violence to unlawful detainers. The materials filled two banker’s boxes. Then Jack handed me a sheet of paper that contained nothing more than four rectangles. “Please sign your name in each one,” he said. “We use a combination of those signatures to make a block stamp for conforming your orders.” I was so nervous that my signature broke through the black borders. I’m

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Reflections — continued

sure I wasn’t the first to do that, for Jack immediately produced another sheet. An hour later, he gave me a schedule for the week. I’d sit with various bench officers and watch them handle their

courtrooms. Only then would I start my first assignment at “Metro,” also known as traffic court, located at 1945 South Hill Street in a building of drab grey massing and a plain exterior. Emblematic

of the Los Angeles lifestyle, its 15 courtrooms are devoted to cases involving the automobile. I’d been used to a law suite where phones rang all day and the faxes never stopped. (I can only imagine how e-mails have ratcheted up the tension since I practiced.) But the first day I walked into my chambers, I could hear the world quiet down. Only my clerk came by (back when we used to have a staff) to let me know case A would plead out, case B was ready, someone was running late on case C, and counsel on case D were down the hall in another division. I picked up the first file and started reading. No one came in. The room was absolutely still. It was as if someone had bound and gagged my telephone. That was the change I noticed the most, and still do. The phone must have rung 50 times a day when I practiced. Maybe it sounds twice a day now. I wondered if this were unique to me until last month, when I spent the day in the chambers of another judge, a respected bench officer who’s active in court affairs and who had a thriving law practice until joining the bench about four years ago. Between 8:30 a.m. and 5:30 p.m., his phone rang exactly twice. Especially in the complex litigation program, the system is structured to let me reflect, in short, to be a judge. I didn’t realize how quickly I’d be treated differently. One opposing counsel who had delighted in noticing depositions for the middle of vacations now remained quiet during the month it took to close my practice. An old girlfriend who had traded me in for a wealthy hardbody wanted to try again. Unfortunately my mother passed away at the time of my appointment. When my family and I made arrangements at the mortuary and the counselor learned of my new career, his empathetic persona evaporated and, his face suddenly harsh, he said, “I hope the word ‘probation’ doesn’t exist in your vocabulary.”

“What’s my line?”

I had been warned that when you become a judge, your real friends take

Reflections continues 14 — The Advocate Magazine

AUGUST 2013


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two steps backwards and your ersatz friends take two steps forward. When I wanted to have lunch with a real friend, I had to call that person, who’d say, “I know how busy you are and didn’t want to bother you.” Meanwhile, an attorney I hardly knew started asking me to Lakers’ games, concerts, and Lord knows what else. His office manager would call with the invitations. I’d decline; she’d call back; again I’d pass, and this routine persisted at least two months. It took over 20 attempts before the calls stopped. I began to feel like Robert deNiro in Taxi Driver – You talking to me? – whenever I heard someone say, “Good morning, Judge.” Joining the bench involves an identity shift that takes some getting used to. During my first trial, I walked into the courtroom wearing my sports jacket instead of my robe. Within the first month, during an argument on a motion, I looked at one of the lawyers and said, “But your honor...” Within a couple of years, though, I had to admit to a feeling of pique when I heard myself addressed as Mr. Mohr. The ‘Judge Mohr’ that had sounded so unnatural the first time I heard it (over the phone, from the Presiding Judge’s secretary) now feels ordinary, more to the point, earned. That’s dangerous. We must not yield to the temptation to announce our title to the credit card agent whose company has fouled up an

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AUGUST 2013

account. Instead I need to take a deep breath and keep in mind that they don’t know who I am, and I can’t tell them. Always remember, in the words of an instructor at one of our orientation sessions, there are only two types of judges: those who are humbled and those who are about to be. Why is that? For openers, when you become a judge, you become the most ignorant person in the room. You are the last to the party, the last to get the joke, because whatever the case, it’s been festering a long time, and unlike you, the lawyers and their clients already know the back story. Think of your first day in a new school, circa sixth or seventh grade. It’s lunch time. You sit near your new classmates on a bench under the elm trees, and while you eat your ham and cheese sandwich, you hear their banter: “Could you believe Jordan Saturday night?” “Yeah but after what Megan did...” You have no idea what they’re talking about. That’s how a number of initial status conferences sound to a judge. But unlike school where kids may ignore you with impunity, when a judge asks for the details about Jordan and Megan, the lawyers have to answer the question. A judge’s relationship with power is a complicated affair. We quickly learn that our gavel is more effective if we don’t wield it. In his seminal book Presidential Power, Richard Neustadt wrote that “Presidential power is the power to persuade.” Often it’s the same on the bench, especially in complex litigation and almost always in the settlement courts. You have to learn when to exercise restraint and when to put the hammer down – stop the sale, sentence the convict, sanction the scoundrel.

How to rule

Having said that, it is clear that most lawyers want us to rule. I’ve lost count of the times counsel have said to me, “Your Honor, we just need a ruling, and then we can settle the case.” They want a clear delineation of their rights as an essential prelude to their (market) transactions. It’s the Coase Theorem in practice.

But how do we rule? What goes into that process? Several factors, actually, including (but not limited to, as they say), the following: first, while they said at Judges College that nothing moves any faster than we want it to, if you take too long to decide, you can murder your docket. And can you imagine if, during a trial, a judge left the bench to look up the law every time someone objected to a question? Here’s the next factor: if during practice you were trained properly, you learned to peruse every case and take the time to harmonize and synthesize the decisions. You parsed every phrase down to the footnotes. You could sink a hundred hours into a summary judgment motion. But judges don’t have the time that your work deserves. Even in the complex courts, we may be able to devote no more than a few hours to a dispositive motion. Yet when I prepare for a hearing, I still hear the managing partner of my old law firm asking me in a voice full of warning, “Is this your best work product?” Now I cannot say it is, because I always wish I had more time, an unfortunate truth that monkeys with my conscience. Factor number three: judging can turn into one of the world’s most timeconsuming jobs, or it can be one of the easiest. It is altogether possible to take the bench without having looked at anything, listen to the lawyers for a few minutes, and then rule. Hey, you have a 50 percent chance of being right. Or you can take five minutes and tear through a research attorney’s memo. But you can work all night and still not be prepared – completely, thoroughly prepared – to engage counsel on a difficult motion. Not only should your personal agenda be missing from your decisions, it usually is. Judging pushes you to the center. Judges who were liberals in their prior lives turn more conservative. Judges who were insurance-defense lawyers become friendlier to plaintiffs. You may have spent 20 years as a hammer of God prosecutor or in a national law firm representing Fortune 500 companies. None of

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this matters anymore. Before long, you’ll either gravitate to the center or you will not be a very good judge. Finally, and perhaps most sobering: Just because the governor gives someone a robe doesn’t make that person a maven at knowing who’s lying. When I wonder how many times I believed the wrong person in a trial, I shudder, because it’s searing not to be believed when you know you told the truth. The paradox is that the toughest credibility calls, at least for me, stem from the small claims and the traffic court cases. In a complex behemoth of a lawsuit, there are corroborating witnesses, telling documents, and good lawyers to explain why you should accept someone’s word. You have the time to reflect. Not so in small claims and traffic. There’s the plaintiff and the defendant, the cop and the driver. You know nothing about their backgrounds. There may be no exhibits whatsoever, especially in traffic. Each witness has, maybe, a minute or two to tell what happened. This is an elevator pitch more than a trial. And when it’s over, you learn to make the call and move along.

Mere mortals

So how has this new identity impacted my outside life? It’s made me more risk averse, and I venture to say, that’s normal. I am well aware that colleagues like Judge John Wiley go rock climbing

and Judge William Highberger bombs down Highway 99 on his Honda VFR 800. But the majority of us mere mortals have become wimpy after hearing case after case in which someone’s life ends or, worse, ends in 24-hour care. One of my trials featured a man standing in the front yard, offering his friend a cookie his wife had baked, when an airborne Corvette struck him on the hand. In another, a high-school couple was en route home from a party. The boyfriend took a corner too fast. The sunroof was open; the girl was holding the roof when the car flipped, and she lost her hand. One Friday night a high school football player was tackled and thought nothing of it, thought nothing about anything, actually, because he died. On a late summer afternoon, a family was driving home from a camping trip when a tire detreaded and their SUV rolled, killing two of them. Now I watch my step at the curb, or at least try to. I’ve become a right-lane guy who drives a little more slowly and hesitates a little longer after the light turns green. One of my colleagues never makes a left turn. That’s right. If he has to go left, he goes right and right and right again, around the block until he can cross the intersection straight on. And come to think of it, Judge Wiley has told me that his rock-climbing pals say he’s the most risk averse among them.

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AUGUST 2013

Here are my parting observations. Several colleagues have remarked that they have the best job in the world. We may never savor a ringing courtroom victory, but then no clients call at midnight. We check a lot of first-amendment rights at the courthouse door, but then no one expects us to raise money. Speaking of money, these days it’s so tight I sometimes have to cadge pens and post-it notes, but the effort is worth it, for we’re tasked with lofty goals: to follow the law and do justice between the parties. I love my job because of those goals and the bonuses that go with them: the opportunity to resolve conflicts that impact people’s lives and by doing so, help them get on with their lives. Governor Pete Wilson appointed Anthony J. Mohr to the Los Angeles Municipal Court in 1994. On December 23, 1997, Governor Wilson elevated him to the Superior Court, where he currently sits in the complex litigation program. He has served on various local and state judicial committees, including the Superior Court’s Executive Committee, the CJA Ethics Committee and two California Judicial Council advisory committees. He is involved in teaching judges and attorneys throughout the state. Judge Mohr is the co-author of the California Paralegal Manual: Civil Trials and Evidence (Thomson Reuters 2010, 2011) and has served as a contributing editor to the Rutter Group’s California Practice Guide – Civil Procedure Before Trial (chapter 12 – settlement, and chapter 14 – representative and class actions). He is also a co-editor of the Resource Guide for Managing Complex Litigation, published by the National Judicial College. From September through December, 2009, Judge Mohr was assigned as a judge pro tem on the Court of Appeal for the Second Appellate District. He has authored articles in the Pepperdine Law Review, the Southwestern Law Review, the Valparaiso Law Review, and the Los Angeles Lawyer. Other essays, and short stories he has written have appeared in a number of places, including Bibliophilos, The Christian Science Monitor, The Coachella Review, Commonweal, Diverse Voices Quarterly, Eclectica, Literary House Review, Oracle, The Sacramento Bee, Workers Write - Tales from the Courtroom, Word Riot, and others.


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The Advocate Magazine — 21


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Hon. Mary Thornton House Los Angeles Superior Court

Endgame strategies: Present and future Shifting endgames in the current court climate may require new litigation strategies You will have to excuse me for using the ubiquitous term, endgame, but it seems that I’ve been using it a lot lately. And, while I’m not sure exactly why, I seem to be asking parties, lawyers, court administrators, and even myself the question: “What’s the endgame here?” Such an inquiry is similar to asking “what’s the bottom line?” when change is contemplated. But endgame in this changing Los Angeles Superior Court has a more poignant emphasis. Where does this endgame concept come from? At first, I thought it was the pop-up pane option that appears on my laptop screen after I’ve lost in Mahjong, you know the option of “End Game or Play Again?” But as one goes-a-Googling…one learns that the term endgame has a common usage in chess strategy, wherein the “endgame” is defined as “the part of a chess game in which there are few pieces left.” Furthermore, a chess endgame is preceded by the opening and middlegame. For the rest of us less sophisticated checkers players, the generic and growing-in-popularity definition is “the final stage of an extended process or course of events.”

Have the end in sight

Regardless of your definitional base from which this concept arises, having an opening, middlegame, and endgame sound pretty darn familiar when it comes to mapping out a litigation and trial strategy. Indeed, the best trial strategists advise that before you file a complaint or answer one, having the “end in sight” is a crucial and mandatory step and likely, the best preventative cure to malpractice accusations and the best defense to them as well. In business, in-house counsel wisely advocate the “let’s not go there” – a jury trial – approach if at all possible. Strategies abound about “having the end in sight” when it comes to litigation. 22 — The Advocate Magazine

AUGUST 2013

How many “how-to” books advise that a lawyer start with laying the ground rules at that first client interview and map out all conceivable Endgame consequences? Hmm…can’t think of a one that doesn’t or advises a lawyer not to do it. The best practice tip I ever received was from a mentor lawyer who advised that no complaint or answer should be drafted without first consultation with the jury instructions. He explained that he used the instructions to map out the discovery plan in terms of document production and deposition questions, and to fashion pre-trial motions. He explained that this strategy avoided lengthy briefing because once he quoted the jury instructions – the law of the case – judges were on his side. This endgame strategy never let me down in terms of evaluating the strength and weaknesses of my case. I deployed it from the very first client interview or opposing counsel letter I wrote to the verdict form I fashioned.

Consult jury instructions

As a well-touted, judicial best practice, my fellow judges routinely consult jury instructions as an aid. They provide

a ready roadmap to analyzing discovery requests, summary judgment motions, evidentiary rulings, and nonsuit motions at trial. One of the best judicial-practice tips I ever received was: never, ever start a jury trial unless and until the jury instructions and verdict forms are completed. Just having the lawyers view the endgame – what instructions the jury will hear at the close of trial and verdict form questions they will answer – has resulted in many a settlement prior to trial. It certainly created the proper focus for the entire trial if no disposition was possible. Consider this pretty common fact pattern inspired by a few cases: Harold sues his former employer of almost 32 years, defendant “Craynone Company” for wrongful discharge based upon age discrimination. Craynone asserts categorically that no discrimination occurred – Harold’s lay-off was a reduction in force because Craynone is bleeding funds without commensurate income. Harold was in a layer of management wiped out across the board along with other restructuring. Craynone pleaded financial hardship in their answer. Much to their surprise, Harold’s lawyer commences discovery asking for, well, everything to show that Craynone is at a financial death’s door sufficiently to warrant laying-off a 32-year employee, three years shy of full retirement. Craynone cries “foul” because it is a privately held company and release of financial records would be, well, tacky and injurious to the reputation of the company that, because of the lay-offs and restructuring, is working. Hence, public knowledge of their near demise would do nothing for the precarious health of the recovering company. Ex parte applications, motions to compel, nasty meet and confers, and all the ensuing falderal have the judge ranking this case between the second and third rung on the “ lawyers driving me crazy” ladder.

Endgame continues


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Endgame — continued

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What is wrong here? Permit me to suggest that everyone – even the judge – lost sight of the endgame. So, what were the endgame missteps? Assuming that restructuring of Craynone was vital to its survival, laying off a 32year employee (three years shy of retirement) might be a numbers’ gain at first, but if the endgame resulted in a lawsuit, some unpopular media attention, attorney fees, and a jury trial that required release of financial information to competitors, the endgame misstep occurred in the decision to lay-off Harold in the first place without exploring other options. You’ll notice, I didn’t say *winning/losing* jury trial verdict, because once you have expended time and effort in litigating a case with hard fought discovery and

the inevitable summary judgment motion, there’s no “win,” there’s only fees, costs and aggravation. A losing jury verdict compounds all line items in the loss column. Harold’s attorney had to assume a worst case scenario as well: Craynone plays hardball, gives up its financial data with an airtight protective order to show the jury the fiscal health of the company warranting the lay-offs of not just Harold but all persons in his management level, thus, no age discrimination is proved. Or, Harold wins, but the jury gives him only three years of salary, no punitive damage award, and the verdict comes in under the §998 offer, shifting costs and fees wiping out any gain Harold would have had.

A winning outcome Sometimes the endgame question is pretty simple: How big a loser do I want to be? Consider me an eternal optimist, but from my perspective, I see a lot of parties losing sight of the forest outcomes because of the litigation “trees.” Keeping the endgame in sight, here are some possible solutions that would result in a winning outcome for all concerned: ● Before sending Harold to his lawyer’s office, run the numbers – compare and contrast litigation costs with a three-year payout for Harold allowing him close to full retirement. Would a structured payout provide both Harold and Craynone with a guaranteed amount with less exposure to rising/shifting litigation costs? Would this be worth buying off the risk of an adverse jury verdict for all concerned? What about putting Harold in the position of having faith in his soonto-be former company and offer stock options in lieu of all cash and put payment out past the recovery timeline of the company? All of this permits certainty for both sides and Craynone avoids the public attention to its fiscal condition that would come with litigating the case – a cost difficult to measure, but an important cost nonetheless. ● If the numbers warrant the endgame of a jury trial, then figure out your best opening, middlegame, and endgame strategies. Those could include any or all of the following: ● Urge private Early Neutral Evaluation or mediation to get the parties primed for settlement once discovery has commenced or been completed; ● Make a pre-emptive request for a protective order on the financial records to determine the judge’s inclination to protect the privacy of the records or any compromise in the production of documents; ● Make an attractive, if not irresistible, §998 offer early on in the process; ● Consider admitting liability solely for the purpose of commencing with just a trial on all or part of the damages allegations.

Endgame continues 24 — The Advocate Magazine

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Endgame — continued

Any one of these endgame-in-sight strategies could eliminate or reduce the exposure of the parties. It is axiomatic that these endgame strategies work best when this type of case is given to a judge for all purposes from filing to trial. This type of case is one of the many reasons why the LASC Civil Restructuring Plan retains the invaluable individual calendar (I/C) court. Clearly, the endgame of intimate knowledge by a singular judge of this case from cradle to grave results in more efficiencies than referral to a new judge just prior to trial.

PI cases

But, what about endgame strategies for the personal injury (PI) case now assigned to Department 1 with the looming and probable potential for an unknown countywide assignment? If lawyers were playing chess, it probably looks and feels like the rooks, knights, kings and queens have been shifted to a Monopoly Board. Ah, yes, you can anticipate my next sentence in the form of this advisement: The PI Case Endgame Strategies Have Changed. To avoid any endgame missteps in today’s paradigm shift, the uncertainty of

the trial location must be taken into account early on and evaluated throughout the litigation processes. Trial preparation in our new court configuration requires greater flexibility and contemplation of the different options required by it. When I advised clients about risk, it was common for me to discuss the courthouse culture where the case was to be tried. Early in the litigation, I took my clients on a “field trip” to the trial court. I wanted them to see the judge, the courthouse, the jurors, and simply just to know where to park. This eliminated a ton of anxiety, made them better witnesses, and empowered them with knowledge so that if the case settled, they had a visual of all components and risks of the trial milieu. You can still take such trips generically, but not specifically. Permit me to suggest that you might want to do at least two field trips to differing courthouses. Your clients will then have a better understanding when you talk about why a case should settle or go forward, why it is worth more or less and so forth, due to the fact of its trial location. During the discovery process, this shifting endgame is crucial, too. You simply can’t evaluate a witness during depo-

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sition within the context of where the case will be tried. Evaluations will need to be more thoughtful and omnibus. The witness that might do well in front of one judge might not be as effective before another. You need to consider the impact of “judicial first impressions” throughout the course of the litigation. The discovery motions and the attached “you are a %#@” letters without a history carried out in front of one judge over a period of time will have a different impact on a judge without knowledge of that history. [Note: they are not appropriate in any scenario and much, much more risky in this new era.] So, what’s the endgame to this article? With our constrained resources, we are left with fewer pieces on the proverbial trial “board” and the course of events that have traditionally existed are changed. However, regardless of the changed circumstances, an endgame strategy is always the key to success. Judge Mary Thornton House is the supervising judge for the Northeast and North Central Districts. She has been judge for 17 years.

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Hon. Mary Ann Murphy Los Angeles Superior Court

Navigating underfunded courts There will be longer waits for hearings, while trial dates and trials will stack up Judicial branch budget cuts have caused court closures, increased case loads and the loss of reporters in civil cases. This article describes recent changes in the unlimited jurisdiction civil courts in the Los Angeles Superior Court Mosk courthouse and suggests helpful strategies for difficult times.

Recent changes at the Mosk Courthouse For many years before the current funding crisis, there were 50 direct calendar unlimited jurisdiction civil courts in the Mosk courthouse; now there are 34. There are 15,185 cases assigned to 34 direct calendar unlimited jurisdiction civil courts in the Mosk courthouse, with an average of 447 cases per courtroom. Forty-five to forty-eight new cases will be assigned to each courtroom every month. Inventories in these courts will continue to increase, as it is not possible to dispose of 45 or more cases per month. All unlimited jurisdiction personal injury cases in the branch courts and the Mosk direct calendar courtrooms were transferred to three newly created personal-injury courts, Departments 91, 92 and 93. The Court’s total inventory of 17,576 unlimited jurisdiction personal injury cases is now assigned to those departments, with an average inventory of 5,859 cases per courtroom. The court anticipates 16,000 personal injury cases will be filed per year. The volume of law-andmotion matters and missing or late arriving papers and files is straining the new personal-injury courts. More than 100 personal-injury cases were removed from each direct calendar unlimited jurisdiction civil court and replaced by more work-intensive cases, straining the meager resources available to those courts, including the one-half research attorney assigned to each court. The volume of filings and number and complexity of motions has increased. There will be longer waits for hearings and trial dates and trials will stack up. There are 538 asbestos cases pending in the Los Angeles Superior Court. On

28 — The Advocate Magazine

AUGUST 2013

August 30, 2011, the Chief Justice granted a Petition for Coordination of the Los Angeles, Orange and San Diego Superior Courts asbestos cases and coordinated the cases in Los Angeles. The total inventory of 538 reflects all JCCP 4674 cases and those asbestos cases that were not included in the coordination proceedings.

Strain on the settlement courts The free mediation panel and party pay mediation panel were discontinued due to budget cuts. There are six settlement courts in the Mosk Courthouse. Currently, 15,185 direct calendar cases and 538 asbestos cases, a total of 15,723 cases, compete for assignment to the six settlement courts. In personalinjury cases, there is uncertainty regarding settlement value created by courthouse assignments on the first day of trial. A number of the mandatory settlement conferences cannot go forward because counsel does not have authority to settle or the client is not present as required by California Rules of Court, rule 3.1380(b). When an MSC cannot go forward because the required persons are not present, other litigants wait longer for assignment to settlement courts. Post-judgment matters Department 90A has closed and many post-judgment matters are now heard in the civil unlimited jurisdiction direct-calendar courts in the Mosk courthouse. Those include judgment-debtor and third-party examinations, charging orders, claims of exemption, escheat hearings, law-and-motion for assignment and post-judgment orders, mechanics liens, and orders for sale of dwelling. Commissioners handled post-judgment work for many years in the Mosk courthouse. Adding this work to the civil unlimited jurisdiction direct-calendar courts in the Mosk courthouse increases the workload there, and less time is available for matters traditionally heard in those courts. For example, a judgment

debtor or third-party examination may occur while a trial is in progress in the direct-calendar court. If the judgment debtor refuses to answer questions, the trial will wait or recess early so the court can take up the judgment-debtor matter.

No court reporters Effective June 14, 2013, the Los Angeles Superior Court will no longer provide court reporters in civil cases. For each court appearance, counsel should consider whether to retain a pro tem official reporter. When practicing appellate law, there are at least three immutable rules: first, take care to prepare a complete record; second, if it is not on the record it did not happen; and third, when in doubt, refer back to rules one and two. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364; see also, R. Cooper, Bring Your Own Court Reporter, California Litigation (2013) Vol. 26, No. 1, p.21) The certified transcript of the official court reporter is prima facie evidence of the testimony and proceedings. (Code Civ. Proc., § 273(a)) A rough transcript cannot be used, cited, distributed or certified and cannot be used to rebut or contradict the official transcript. (Code Civ. Proc., § 273(a)) It remains to be seen whether the Court of Appeal will consider disputed versions of what occurred in the trial court when counsel do not arrange for a pro tem official reporter. In some appellate proceedings, lack of an official transcript may not be fatal, but the appellate law on this issue is developing. In Chodos v. Cole (2012) 210 Cal.App.4th 692, 699-700, the majority held that a transcript is not necessary for an appeal from a ruling on a SLAPP motion. The dissent disagreed, citing numerous cases in which appellate courts refused to reach the merits of an appellant’s claim because appellant did not provide a reporter’s transcript of the

Navigating continues


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Navigating — continued

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proceeding at issue, or a suitable substitute, including requests for jury instructions, motions for attorney’s fees, nonsuit, new trial, to dissolve preliminary injunction and a monetary sanctions hearing. (Id. at 707-708) Settled statements are not designed to recreate the entire trial transcript and it may be quite unrealistic to expect that trial courts have the resources to do so. (Cal. Rules of Court, rules 8.136, 8.137, 8.836, 8.837) Counsel are accustomed to paying for court reporters at depositions. Failure to ensure that a pro tem official reporter is present for hearings and trials may be penny wise and pound foolish. Consider how your client will react if he loses an appeal because you did not have a pro tem official reporter present for the hearing or trial. If there is any possibility that your client will want to appeal the court’s ruling on the issue taken up at the hearing or from the verdict at trial, and a transcript will be needed, retain a pro tem official reporter and consider sharing the cost with your opposing counsel. The homepage of the Los Angeles Superior Court Web site has a link to “Court Reporter Information.” (http:// www.lasuperiorcourt.org/courtreporter/ui/) Reporters on the approved list can be used without a stipulation of counsel. All others require a stipulation of counsel. The court must sign an order approving a pro tem official reporter for each hearing or trial. The court’s Web site has forms for order appointing court approved reporter as official reporter pro tempore (LACIV 237), a stipulation and order to use certified shorthand reporter (LACIV 236), as well as a court reporter directory. Counsel may wish to compare reporters’ rates and fees, as they may vary. Obtain the charges for appearance (hourly, half-day or full day), price per page for original and copy, and any extra charges, such as real-time reporting. Court reporters are regulated by the Court Reporters Board of California. Certain official or official pro tem official reporter fees are set by statute. (Gov. Code, §§ 69950-69954) Those fees are described on the Court Reporters Board

of California Web site: (www.courtreporters number of calendar events in each case, board.ca.gov/lawsregs/fees_protems.pdf) slow the pace of the litigation, and reduce Not all court reporters comply with the the number of pleadings and papers filed statutes setting maximum fees. In those by the bar. cases, the Court Reporters Board of At the Civil Courts Seminar on May California receives complaints. 3, 2013, the civil unlimited jurisdiction Many are accustomed to realcourt judges were providAs judges the medical insiders on yourdirect-calendar litigation team, time reporting during trial and final staed with suggestions and plans that will we deliver the cost-effective expertise you need reporting Real-time tus conferences. enable the court to function with reduced allows the to search the transcript resources. The suggestions and plans to judge unlock the secrets in the medical record,. and assists the wast court in ruling on objecincluded: Don’t your firm’s time. We free you up tions. Counsel may wish to obtain the • If a proof of service is not filed within to take on more cases. real-time transcript on laptops at counsel 60 days, set an order to show cause regarding dismissal for failure to serve table. theservices: summons and complaint after the from these case-winning Court’s Benefit inability to manage cases three year period to serve defendant, plus or investigate In Screen the transition from master cases calen- for merit 60 days for service. (Code Civ. Proc., §§ dar to direct calendar courts in the late 583.210, 583.250) Medical record summarization, translation and interpretation 1980s, the Legislature enacted • Do not set post-mediation status conferDeposition and interrogatory question preparation Government Code section 68607. That ences section Identifying provides that: and locating expert •witnesses Use informal discovery conferences to responsibility to coordination …judges shall have theMedical reduce motions to attendance compel Independent Exam and eliminate delay in the progress and • Handle discovery disputes by telephone And so much more! ultimate resolution of litigation, to • Order contentious depositions to the assume and maintain control of the jury room pace Call of litigation, to activelyyour manage In contentious cases, use discovery refus whenever caseload•includes: the processing of litigation from comerees Personal Injury mencement to disposition, and to com• On the day of trial, dismiss all defenProducts Medical Malpractice pel attorneys andLiability litigants to prepare dants as to whom default and default and resolve all litigation without delay, judgment has not been entered Workers’ Compensation Toxic Torts Criminal from the filing of the first document • Require in-person conferences to agree invoking court jurisdiction to final dison jury instructions and verdict forms 661.362.8333 position of the action. • Require joint agreed and disputed jury Effective management and control of instructions and a joint verdict form www.nutrisconsulting.com litigation requires adequate resources and • Require case authority in support of funding. The current level of funding is disputed special jury instructions not sufficient for the court to fulfill the • Set a mandatory settlement conference mandate of Government Code section within 30 days of trial 68607. • Curtail the hours that staff answers teleSupervising judges have advised phones direct-calendar civil judges that increased • Limit the number of cases on the calencaseloads and reduced staff will force the dar court, with reluctance, to reduce the Navigating continues AUGUST 2013

The Advocate Magazine — 31


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Bankruptcy

Litigation is not over if one party files bankruptcy, but what you do next could determine if your case can continue.

TIME IS CRITICAL •Nondischargeability Actions •Motion for Relief of the Automatic Stay •Preference Actions •Proof of Claim •Chapter 11 Plan

Navigating — continued

• Implementation of an online reservation system for law and motion matters. In a future version, filing fees will be paid when the reservation is made to discourage counsel from reserving dates before counsel has determined whether to file to motion • In cases assigned to the personal injury courts, the clerk’s office sets the trial and case management conference dates when the case is filed. If the summons and complaint are not timely served, the trial date is lost. • Purge cases at five years

Burden of moving cases forward The plaintiffs’ bar must shoulder responsibility for moving their clients’ cases forward to trial, particularly where the defendant does not have an incentive to do so. Counsel should name and serve all defendants early to avoid a trial continuance mandated by Polabrid Coatings v. Superior Court (SSC Construction) (2003) 112 Cal.App.4th 920. The court no longer has the resources to calendar multiple orders to show cause for failure to serve the summons and complaint. The proof of service should be filed within 60 days. (Cal. Rules of Court, rule 3.110(b)) The court no longer has the resources to calendar multiple orders to show cause for failure to obtain default and default judgment as required by California Rules of Court, rule 3.110(g),

(h). Defaults and default judgments must be obtained in a timely manner. The court has lost the free and partypay mediation panels. Personal-injury cases are the hardest hit by the loss of this resource. Some wonder whether an entire generation of lawyers lack optimal settlement skills due to reliance on mediators to settle cases. Bar organizations and MCLE providers can help by providing continuing education on settlement negotiation skills in personal-injury and other cases. The court no longer has the resources to conduct post-mediation status conferences to ensure that counsel have complied with orders to mediate or attend mandatory settlement conferences. Counsel must take responsibility for compliance with and enforcement of mediation and mandatory settlement conference orders. Counsel should consider filing an ex parte application to enforce mediation and mandatory settlement conference orders if parties or attorneys with authority to settle fail to appear as required by California Rules of Court, rule 3.1380(b). Counsel should be mindful of the courts’ crushing workloads. Filing papers that miss issues, contain inadequate authorities, lack organization and attach exhibits that are not tabbed and indexed as required by California Rules of Court, rule 3.1110(f) may convey to the court that you do not care about the filing, the motion or perhaps even your case.

Navigating continues

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Navigating — continued

If you cite a federal or out of state case, attach, tab and index the case. Do not assume that the judge or the staff will obtain the case from Lexis or Westlaw. If the case is important enough to cite, it should be important for you to provide it to the court, as those cases are not in the chambers’ libraries. Respect the court’s time and respect litigants in other cases. Avoid voluminous and unnecessary filings where possible. Attempt to resolve pleadings issues, discovery disputes and other contested matters before filing a motion. Oral arguments that simply repeat what is in your papers are not helpful. Address the tentative ruling in a concise, well thought out manner and provide responsive answers to the court’s questions. Judges continue to be perplexed by counsels’ unwillingness to meet and

confer before the final status conferences and submit joint jury instructions and verdict forms. Judges often refer to getting jury instructions from counsel as “pulling teeth.” As trials stack up, the courtroom will go to the trial-ready case. Some trials will be continued, and the length of the continuance will not be short. You may lose a trial date if you do not meet with the other side to prepare jury instructions and the verdict form.

Conclusion We are sharing increasingly scarce resources and the court cannot conduct business as usual. Time wasted in one case deprives another litigant of the court’s resources. The trial bar must shoulder responsibility for moving cases forward, as the court lacks the full resources to do so.

Judge Mary Ann Murphy has served on the Los Angeles Superior Court since 1993 and sits an unlimited jurisdiction civil department in the Mosk Courthouse. She has moderated the central civil courts Best Practices discussions since its inception in December, 2005. She was an associate editor for Weil and Brown, Civil Procedure Before Trial, for seven years. She served on the statewide Civil and Small Claims Committee and served four terms on the court’s executive committee. Judge Murphy is actively involved in educating judges and lawyers and is a frequent speaker. The author thanks Greg Drapac, Los Angeles Superior Court Senior Administrators, and Gina Collura, Los Angeles Superior Court Senior Management Analyst, who compiled the data presented here.

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Hon. Arthur Gilbert, Presiding Justice

Presiding Justice, CA Court of Appeal, 2nd Appellate District, Div. VI

California’s premier jurist, Justice Stanley Mosk Hon. Arthurfor Gilbertjustice in California A super-hero Presiding Justice, CA Court of Appeal, 2nd Appellate District, Div. VI The currents of electricity that run through our lives provide numerous opportunities for connections. All one has to do is plug in and flip on the switch. My starting point is a book review which leads me to share with you personal experiences that reveal the law’s potency. I commend to your reading, Justice Stanley Mosk, A Life at the Center of California Politics and Justice, by Jacqueline R. Braitman and Gerald F. Uelmen (McFarland & Company, Inc., 2012).* As the book’s introduction aptly notes, “The life of Stanley Mosk has much to teach us about politics and justice in America.” Mosk had a part to play in many of the important and “epochal defining moments of the 20th century.” “From his arrival to California in 1933, he was fully engaged in the civic, social and political life of his community, state and nation.” His tenure as the longest serving Justice on the California Supreme Court (1964-2001) afforded him the opportunity to author groundbreaking opinions that reflected impeccable scholarship, superb craftsmanship, and the clear elucidation of constitutional principles of enduring value. In a well-researched and engrossing narrative, Ms. Braitman and Professor Uelmen tell us the eventful and colorful life story of Stanley Mosk. Mosk overcame the obstacles of anti-Semitism and fought for civil liberties long before it was fashionable to do so. He rose to prominence in Jewish and Democratic political circles. You will be treated to a compelling account of the contentious and irrepressible world of politics in California in which Mosk played a prominent role. Mosk chaired and served on organizations during the Depression in the ‘30s that promoted social justice and good government during an era of corruption in Los Angeles when Frank 36 — The Advocate Magazine

AUGUST 2013

Shaw reigned as mayor. Many meetings of these reform organizations took place at Clifton’s Cafeteria in downtown Los Angeles. It was about a decade later when my grandmother often took me to lunch at Clifton’s and afterwards to a

movie and the vaudeville show at the downtown Orpheum Theatre. By that time Stanley Mosk had made Los Angeles a better place.

Mosk continues


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Mosk — continued

Opportunity dependent on luck The engaging account of Mosk’s career demonstrates that opportunity is often dependent upon luck, fortuitous circumstance, and the talent and ability of the person upon whom luck shines its light. Mosk’s odyssey from Chicago to California and his involvement in social movements and politics led to his appointment as Gov. Culbert Olson’s Executive Secretary. During the last hours of Olson’s term of office, he called Mosk in the middle of the night and told him to fill in his name on the commission for the Los Angeles County Superior Court, making him, at age 30, the youngest superior court judge up to that time ever to sit on the Superior Court in California. Mosk confided to me that Governor Olson at first told him to fill in his name for a commission for the Municipal Court. But all the Municipal Court appointments had been made. There was, however, one opening left for the Superior Court. “Well then put your name on that commission,” said the Governor. When a challenger in the next judicial election called Mosk “the child judge,” the quick-witted Mosk replied, “Better a child than someone in their second childhood.” Mosk won the election “with the largest vote ever received by a judge in Los Angeles County.” The young, energetic Mosk proved to be up to the job and early on displayed his sensitivity to racial injustice in a decision that enunciated a principle that would become embedded in our country’s constitutional law doctrine.

War against racial restriction

In Wright v. Drye, Mosk struck down as unconstitutional a racially restrictive covenant in a deed to property purchased by a black couple. The famous United States Supreme Court decision, Shelley v. Kraemer (1948) 334 U.S. 1, holding that racially restrictive covenants in property deeds were unenforceable in courts of law, had not yet been decided. In Wright v. Drye, the defendants had purchased a house, the deed of which

contained a racially restrictive covenant. When some neighborhood residents sought to enforce the Caucasian-only resident requirement, other Black families moved, but not the Dryes. They stayed to fight this injustice. They were represented by Loren Miller, the great civil rights lawyer, who later became a judge, and whose son, Loren Miller, became a distinguished Superior Court judge and a dear friend and colleague. Judge Mosk ruled the covenants were an unconstitutional violation of the Fourteenth Amendment and sustained the demurrer without leave to amend. He pointed out how callous it would be to deny Mr. Drye, a decorated war hero who fought in two wars to preserve our country’s freedom, the right to live in a house because of his race. It wasn’t until the next year that the United States Supreme Court decided Shelley v. Kraemer. Mosk’s eloquent opinion presages the masterfully written opinions he authored years later on the California Supreme Court. He wrote, “‘Our nation has just fought the Nazi race superiority doctrine. One of these defendants was in that war and is a Purple Heart veteran. This court would indeed be callous if it were to permit him to be ousted from his own home by using “race” as the measure of his worth as a citizen and neighbor.’ … ‘We read columns in the press each day about un-American activities. This court feels there is no more reprehensible un-American activity than to attempt to deprive persons of their homes on a “master race” theory.’” The Dryes stayed in the house and raised their son, whom I will never forget, and not because he and I share a first name. I met Arthur Drye on November 5, 2010. That was the day I was privileged to attend the ribbon-cutting ceremony at the new Stanley Mosk Elementary School in the West Valley. All of us in the audience in the school auditorium felt a connection with one another. We were all smiling, a reflection about how good we felt about the ceremony.

Super heroes One of the speakers was Arthur Drye, who had become a teacher and school administrator. He asked the students to think for a moment about their heroes. He asked them if Superman or Spiderman were heroes. I was relieved to hear the kids roar in unison, “No!” When he asked if their parents and teachers were heroes, they yelled, “Yes!” I thought to myself that there is hope for the future. Drye then spoke of his heroes, his father and mother, who had the courage and character to fight for their rights, and Stanley Mosk, who made it possible for him to live in the neighborhood of his parents’ choice. He spoke of the jeers and taunts he suffered in school because of his race. But, like his parents, he refused to be defeated and became a teacher and school administrator. His message: “A hero stands up to bullies. We succeed by not encouraging bullies. Bullies only win if we let them.” It was an extraordinary experience to hear Arthur Drye, standing on the auditorium stage of the Stanley Mosk Elementary School, inspiring and encouraging the students, 63 years after Judge Mosk’s decision. It is fitting that the downtown court civil courthouse in Los Angeles be named the Stanley Mosk Courthouse. It is an acknowledgement of his invaluable contribution to California. No doubt Stanley Mosk would be pleased with this recognition. But the grammar school that bears his name, stemming from a demurrer sustained without leave to amend over six decades ago, I suspect, would be an immense satisfaction to him and would hold a special place in his heart. And can you believe it? In addition to all his duties as a judge, Mosk also wrote a weekly, not a mere monthly column, widely circulated in a number of local papers. His columns were humorous and informative. I can only wonder, how did he do it? Mosk became Attorney General of California in 1958, winning the election with the largest margin of victory of any

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Mosk — continued

d candidate in any contested election in the country. He formed a Constitutional Rights Division in the office and pio-

neered enforcement of constitutional rights for all citizens so that minorities enjoyed the same protections as others.

For example, he induced the Professional Golfers’ Association (the PGA) to avoid a lawsuit and abandon the “Caucasian Clause” in their contract. Mosk became a figure of national prominence. He was close to John and Robert Kennedy and other prominent political figures and was touted as the best candidate to represent California in the U.S. Senate. There were other possibilities for public office that did not materialize. Robert Frost’s “The Road Not Taken” speaks to the dilemma we face in the choices we make in our lives and careers. But Mosk chose roads upon which he encountered detours occasioned by the unanticipated vicissitudes of life. The seemingly endless opportunities that lay open to him ultimately led him to the road he may not have anticipated – the road to the California Supreme Court where he became one of its most influential and respected jurists.

The Mosk Doctrine

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The reader will glimpse some of the maneuvering and drama that occurs in our Supreme Court and how its atmosphere is affected by the personality and administrative skill of the Chief Justice. The reader gains insight into “The Mosk doctrine,” which provides wider, more expansive constitutional protection under independent state constitutional grounds than is provided under the U.S. Constitution. The chapters on Mosk’s tenure on the Supreme Court are riveting. The analysis of cases Mosk and his colleagues authored demonstrates that considerations of policy and practicality often support, in part, the court’s rationale. The discussion of Bakke v. Regents of the University of California (1976) 18 Cal.3d 34, authored by Mosk, is particularly incisive. A particular case can engender derision and criticism from some quarters when it is issued, but with the passage of time garner praise for its reasoning. Mosk and a majority of the court held that affirmative action based on a racial quota system in college admissions was unconstitutional. Many came to realize

Mosk continues 40 — The Advocate Magazine

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Mosk — continued

after a clear and objective analysis that Mosk’s rejection of racial quotas in Bakke was in fact consistent with his decision decades earlier on racially restrictive covenants in Wright v. Drye. Close to 50 years ago, Richard Mosk, Stanley Mosk’s son, and I sat at opposite ends of the counsel table. We represented our respective clients in a lawsuit involving a motor home company, (my firm’s client), that had been acquired by a mega corporation, (Richard’s client). The lawsuit was hotly contested, but Richard and I maintained a civil relationship and kept our sense of humor throughout the proceedings. A friendship developed that has endured to the present. Today Richard Mosk is a highly respected justice who sits in the Second District, California Court of Appeal.

When Richard learned of my appointment to the Los Angeles Municipal Court, (this was in the last millennium,) he asked if I would like his father to administer the oath of office. I could not imagine a greater honor than to be sworn in by one of the nation’s most respected jurists. On a warm Labor Day in 1975, an affable and gracious Justice Stanley Mosk swore me in at Richard and Sandy Mosk’s home with family and friends in attendance. We all downed a glass of champagne or two, and the next day I heard my first traffic ticket case. The pro per protested his citation for an unsafe lane change. I found him guilty, immediately establishing my bona fides as a law-and-order judge. The pro per appealed. You are to draw no conclusions from my inability to recall the

outcome of the appeal. The spirit of Stanley Mosk no doubt influenced me and continues to be a strong influence in my judicial career. In 1976 when I was a Municipal court judge, I ruled that Penal Code section 647 subd. (a), making it a crime to solicit a so-called lewd act in a public place was unconstitutional. It was obvious that what two consenting adults could legally do in private, they should be able to talk about in public. A year later in Pryor v. Municipal Court, (1979) 25 Cal.3d 238, the California Supreme Court ruled that Penal code Section 647 subd. (a) was unconstitutional. Through his example and my association with him, throughout the years, Stanley Mosk has been my mentor. Arthur Drye and I have something in

Mosk continues

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Mosk — continued

common beyond having the same first name. For us, Stanley Mosk is a hero. Simply read “Justice Stanley Mosk,” and you will know why. This well written biography will grab your attention and hold it captive. You can order a copy at www.mcfarlandpub.com Postscript. In keeping in a Mosk mood, I pose this question: Do parents pass on their talent and acumen to their offspring? J.S. Bach and Stanley Mosk prove that they do. To stay in that absorbing Mosk state of mind, I next commend to your reading the “Oral History” of Stanley’s son, Court of Appeal Justice Richard Mosk, which appears in California Legal History, Journal of the California Supreme Court Historical Society (Vol. 7, 2012), edited

44 — The Advocate Magazine

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by our much-appreciated Renaissance woman, lawyer, composer, musician Selma Moidel Smith. This is an enlightening interview conducted by Richard Mosk’s son and Stanley’s grandson, Emmy winning investigative reporter and producer for ABC News, Matthew Mosk. Richard speaks of his work on the Warren Commission and his experiences as a judge on the IranU.S. Claims Tribunal and offers observations about Stanley Mosk. Even if I had not written the introduction to this informative and revealing “Oral History,” it would be no less readable and informative. * Justice Stanley Mosk, A Life at the Center of California Politics and Justice, by Jacqueline R. Braitman and Gerald F. Uelmen

(McFarland & Company, Inc., 2012) is available at Amazon.com or through the publisher. Hon. Arthur Gilbert, Presiding Justice, California Court of Appeal, Second Appellate District, Division Six, obtained his LL.B. in 1963 from the University of California, Berkeley, Boalt Hall. After two years as a Deputy City Attorney in Los Angeles and ten years in private practice, Justice Gilbert was appointed to the bench in 1975. In 1982 he was appointed an Associate Justice, Second Appellate District. He was appointed Presiding Justice in 1999.


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Bad parenting does not always equal tort liability A look at how California law may limit parental liability for harms their children cause Questions about the role of the parents often surface after their children cause injury or death. Public opinion often presumes that such bad acts do not naturally occur if the parents had been carefully supervising and managing their children. Injured parties often seek legal help with the expectation that California law presumes likewise and holds parents legally responsible for the acts of their children. But the general rule in

California is that parents are not legally responsible for harms their children cause. This article looks at those limited circumstances where California law holds parents responsible.

Parent and child as principal and agent

Under the common law, agency was the only recognized theory of vicarious liability against a parent. There is little

precedent for this theory because minor children do not typically act as their parents’ agents. However, the theory of liability was recognized in Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900. While borrowing her father’s work vehicle to go to a movie, 16-year-old Gail drove negligently and injured others. Her father’s work vehicle had removable magnetic business signs and the mileage was

Bad Parenting continues AUGUST 2013

The Advocate Magazine — 47


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Bad Parenting — continued

treated as a business expense. Although the jury found against the father on an agency theory, the court of appeal

reversed because Gail’s trip to the movie theater was purely personal. Nevertheless, the court recognized that a parent

could be liable under an agency theory, though not in the circumstances there. Exactly what circumstances would support this legal theory? What if Gail had been doing a business errand for her father? Based upon the analysis in Van Den Eikhof, the answer requires the application of agency law to the particular circumstances of each case. See also Casas v. Maulhardt Buick, Inc. (1968) 258 Cal.App.2d 692, 704 where the court noted that “[o]f course, a child may become an agent for his parent upon proof of facts which would be sufficient to establish an agency between the parent and a third person.” Despite its limited applicability, one should not overlook this legal theory since it is the only form of vicarious liability by which a parent may be liable for the full measure of damages caused by their minor child.

Legislated vicarious liability

A number of statutes have created exceptions to California’s general rule against liability based on nothing more than the parent-child relationship. These statutes, however, have strict limits on the amount and type of recoverable damages. • Willful Misconduct (Civ. Code, § 1714.1) Civil Code section 1714.1 imputes liability to the parent or guardian who has “custody and control” of a minor for “[a]ny act of willful misconduct of [the] minor that results in injury or death to another person or in any injury to the property of another.” As of January 1, 2011, parental liability is limited to $37,400 for each tort. And an insurers’ indemnity liability is capped at $10,000. • Discharge of Firearm (Civ. Code, § 1714.3) Civil Code section 1714.3 imputes liability to a parent or guardian who has “custody and control” of a minor that causes injury to a person or property of another by discharging a firearm. Parental liability is capped, however, at $30,000 per person and $60,000 in the aggregate.

Bad Parenting continues 48 — The Advocate Magazine

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Bad Parenting — continued • Criminal Restitution (Welf. & Inst. Code, § 730.7(a)(d))Welfare and Institutions Code section 730.7 provides that if a minor is convicted of a crime, a parent is liable for criminal restitution damages. Again, liability is limited to the caps in Civil Code sections 1714.1 and 1714.3 and the types of damages recoverable in restitution. • Minor’s Use of Vehicle (Veh. Code, §§ 17707-17710) A parent that signs a minor’s driver’s license application is jointly and severally liable for civil liability of the minor “arising out of his driving a motor vehicle upon a highway during his minority.” A parent who allows his or her minor child to drive a vehicle, whether licensed or not, is jointly and severally liable for any damages resulting from the negligence or wrong of the minor in driving the vehicle. In either case, the parents’ liability is limited to $15,000 per injury; $30,000 for all injuries per incident; and $5,000 for property damage.

Negligent failure to control

In order to avoid the general rule of non-liability and damages caps, the plaintiff must show that the parent’s own negligence was a cause of harm. California follows Restatement 2d of Torts, section 316 “which finds a ‘special relationship’ between parent and child, and accordingly places upon the parent ‘a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.’” (Robertson v. Wentz (1986) 187 Cal.App.3d 1281, 1288.) The limits of “opportunity to exercise control” was tested in Costello v. Hart (1972) 23 Cal.App.3d 898 where a lady took her 4½-year-old grandson to a

Bad Parenting continues 50 — The Advocate Magazine

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Bad Parenting — continued

department store where the boy “was running around all over the place.” The boy was admonished by store employees to no avail and he eventually caused another person in the department store to trip, fracturing her femur. Based upon the sparse evidentiary record that the grandmother “was present in the said department at all of the times involved herein,” the court found that whether the grandmother had notice and opportunity to control her grandson was a question for the jury. General knowledge of a child’s bad behavior is insufficient to establish parental liability. The parent must have prior knowledge of the specific type of behavior that caused the injuries at issue. In Robertsen v. Wentz (1986) 187 Cal.App.3d 1281, 1285 the surviving

spouse of a gunshot victim sued the mother of Roy when he shot and killed the plaintiff ’s husband during a robbery. Plaintiff put forth evidence that Roy’s parents exposed him to guns at age five and that Roy’s mother learned that Roy was drinking, and using cocaine and marijuana at age 16. The shooting happened just before Roy turned 18 while he was under the influence of alcohol and hallucinogenic drugs. Roy’s mother was unaware, though, of any prior violent tendencies and did not live with Roy at the time of the shootings. In affirming summary judgment in favor of the mother, the Robertson court focused on the mother’s lack of knowledge of her son’s violent tendencies and an inability to control

him. The court concluded that “lacking physical custody and care of Roy at the critical time, and without notice of his propensity to commit violen t crimes, [Roy’s mother] cannot be found liable… for her son’s conduct on the theory that she negligently controlled and supervised him.” (Id. at 1290.) General knowledge of Roy’s troubles and failure to obtain counseling or control abuse of drugs were insufficient to impose liability. Rather, “only the manifestation of specific dangerous tendencies” would trigger a “parental duty to exercise reasona ble care to control the minor child.” (Ibid.) In contrast, the mother of nine-yearold Tim could be liable for his known

Bad Parenting continues

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habit of throwing rocks. Singer v. the vehicle as may be necessary Marx (1956) 144 Cal.App.2d 637 to avoid a collision and to protells the story of how that habit vide immediate guidance caused the loss of an eight-yearin the safe operation of the old girl’s eye. A neighbor reported vehicle. that she seldom saw Tim doing Kostecky v. Henry (1980) 113 anything but throwing rocks and Cal.App.3d 362 explained that that when she would scold him, section 12509’s lack of specific he would give her “a couple of hits guidelines for the required type on the back.” Tim’s mother admitof instruction and advice means ted knowing of the rock-throwing that a duty of reasonable care and thereafter punishing him with applies. At a minimum, the time-outs and sentence-writing. licensed driver’s instructions The Singer court felt that a jury should be consistent with the could thereby infer that Tim’s Vehicle Code and California Parents furnishing alcohol to teens may lead to liability. mother had “notice of Tim’s danDriver’s Handbook. and fired on several motorists on the gerous proclivities and did not adminisFurnishing alcohol to minors freeway, causing injury and death. ter effective discipline.” In a distinction As of January 1, 2011, Civil Code Michael’s parents denied any forewarnthat perhaps highlights the decade dursection 1714(d)(1) establishes that a ing of their son’s violent tendencies but ing which the opinion was written, the plaintiff may state a claim where an adult the father had kept the rifle, along with court found that Tim’s father could not causes injuries to others by providing ammunition, in a place accessible to his be liable because he had only given alcohol to a minor at the adult’s resichildren. Although the parents could advice to Tim’s mother about how to dence. Thus, a parent who provides alconot be held liable for failing to control punish Tim. hol to their minor child during a family Michael because they were unaware of Negligent failure to warn celebration could be liable if the minor any prior violent tendencies, the court Recognizing that children can then causes injury to others due to intoxheld the jury could decide that sometimes be dangerous instrumentaliication. Note that the plaintiff must still Michael’s father failed to use due ties themselves, California recognizes a prove a causal link between the furnishcare in the storage of a dangerous duty to warn others when the child is ing of alcohol and any resulting injuries. instrumentality. out of the parents’ control. In Ellis v. Reida’s analysis is not expressly limitConclusion D’Angelo (1953) 116 Cal.App.2d 310 a ed to firearms and should apply equally California has taken a measured babysitter was found to have stated a well to other dangerous instrumentalities approach to parental liability. One court viable legal claim against the parents of such as prescription medications, unatanswered the presumption posed at the a four-year-old child because the partended motor vehicles, or alcohol. outset of this article by suggesting that ents failed to warn the babysitter that Liability depends on whether the parent tragedies caused by minors are not custheir son “habitually engaged in violentuses due care under all of the circumtomary and when those incidents do ly attacking and throwing himself stances. occur, the question of “why” is too comforcibly and violently against other peoNegligent supervision of a driver plex to presume parental fault. The plainple, and violently shoving and knocking tiff ’s attorney should investigate parental Although vicarious liability for a them, all of which said defendant parliability with the above theories in mind minor’s negligent driving under Civil ents knew.” The son pushed the babysitand a focus on concrete ways that the parCode sections 1714.1 and 1714.3 are ter to the floor causing fractures of her ent could have prevented a known probsubject to damages caps as discussed arms and wrists. lem from turning into a tragedy. above, a licensed driver teaching another Negligent storage of dangerous to drive may be directly liable for failing instrumentalities Jeremy Cloyd is an attorney and member to use reasonable care in supervising and of the Label Trial Team at The Veen Firm, advising the driver. Vehicle Code section California imposes a legal duty on P.C. He litigates complex catastrophic injury 12509(d) provides: parents to use due care in the storage of cases involving negligence, wrongful death, An accompanying licensed driver at dangerous instrumentalities such as products liability and industrial accidents. For all times shall occupy a position within firearms so that children do not harm more information on this article, please email the driver’s compartment that would themselves or others. In Reida v. Lund j.cloyd@veenfirm.com or visit The Veen Firm’s enable the accompanying licensed (1971) 18 Cal.App.3d 698, 702 sixteenwebsite at www.veenfirm.com. driver to assist the person in controlling year-old Michael took his father’s rifle AUGUST 2013

The Advocate Magazine — 55


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Hon. Alex Ricciardulli

Los Angeles Superior Court

Post-trial motions in expedited jury trials At look at your limited options if an expedited trial doesn’t work out as expected Expedited jury trials provide parties with a way to meaningfully litigate their cases without the normal expense associated with regular civil jury trials. Although lawyers and their clients often expect to win expedited trials, it is vitally important that parties be fully aware of their options in the eventuality that the outcome of the trial goes against their expectations. Both motions for a new trial and appeals are greatly limited in expedited jury trials. Trial courts may only grant new trials on the grounds of judicial or jury misconduct, or corruption, fraud, or other undue means regarding the proceedings of the court, jury, or the adverse party. (See Code of Civ. Proc., § 630.09, subd. (a) (all statutory references are to this Code).) Moreover, further limitations exist concerning granting new trials, including that the judicial misconduct must have materially affected the substantial rights of a party, and that any 56 — The Advocate Magazine

AUGUST 2013

corruption, fraud or other undue means prevented a party from having a fair trial. (Ibid.) As will be discussed below, appeals from expedited new trial judgments are limited to the same grounds available for granting a new trial. (§ 630.09, subd. (d).)

Expedited jury trials

The Expedited Jury Trials Act (§ 630.01, et seq.; Stats. 2010, ch. 674) was enacted in recognition that “the rising costs of litigation presents an ongoing challenge in providing access to justice for a number of litigants, especially those with claims involving relatively small amounts in dispute. Traditional trials can be time-consuming and expensive for both litigants and the courts.” (Assem. Com. on Judiciary Rep. on Assem. Bill No. 2284 (2009-2010 Reg. Sess.) March 22, 2010, p. 1.) Expedited jury trials were created “as a voluntary alternative, streamlined method of handling civil

actions that still allows parties to get their day in court, provides cost savings to the parties, reduces the backlog of civil cases, and more efficiently manages jury resources.” (Sen. Com. on Judiciary Rep. on Assem. Bill No. 2284 (2009-2010 Reg. Sess.) June 29, 2010, p. 6.) Under the Act, the parties agree to be bound by several restrictions with respect to the conduct of the trial and challenges to any judgment. For example, regarding the conduct of the trial, the parties agree that each side shall have up to three hours to present its case; the jury will be composed of eight or fewer jurors; and each side will be limited to three peremptory challenges. (§ 630.03, subd. (e)(2)(B)-(D).)

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post-trial motions, except as provided in sections 630.08 and 630.09.” (§ 630.03, subd. (e)(2)(A).) Under section 630.08, subdivision (a), “the parties agree to waive any motions for directed verdict, motions to set aside the verdict or any judgment rendered by the jury, or motions for a new trial on the basis of inadequate or excessive damages.” Section 630.08, subdivision (b), states that “The court shall not set aside any verdict or any judgment, shall not direct that judgment be entered in favor of a party entitled to judgment as a matter of law, and shall not order a new trial, except on the grounds stated in section 630.09.” Section 630.09, subdivision (a), provides that, “The only grounds on which a party may move for a new trial or appeal

are any of the following: [¶] (1) Judicial misconduct that materially affected the substantial rights of a party. [¶] (2) Misconduct of the jury. [¶] (3) Corruption, fraud, or other undue means employed in the proceedings of the court, jury, or adverse party that prevented a party from having a fair trial.” Section 630.09, subdivision (d), states that, “If the motion for a new trial is denied, the party may appeal the judgment to the appropriate court with appellate jurisdiction and seek a new trial on any of the grounds specified in subdivision (a). Parties to an expedited jury trial may not appeal on any other ground.” However, in expedited jury trials, the grounds for a new trial are limited to judicial misconduct, misconduct of the

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jury, corruption, fraud, and undue influence. (§ 630.09, subd. (a).) In contrast, in non-expedited civil jury trials, new trials may be granted based on any of the grounds listed in section 657, which include irregularity in the proceedings, jury misconduct, accident, surprise, newly discovered evidence, excessive or inadequate damages, insufficiency of the evidence, and errors of law. Because the right to move for a new trial is purely statutory, courts have no inherent power to grant a new trial based on grounds not specified by statute. (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166; see also Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193.) Since a “motion for a new trial finds both its

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source and limitations in the statutes . . . the procedural steps prescribed by law . . . are mandatory and must be strictly followed.” (Mercer v. Perez (1968) 68 Cal.2d 104, 118.) The grounds for a new trial due to judicial and juror misconduct listed in section 630.09, subdivision (a)(1) and (2), are also grounds for granting new trials in regular civil trials under section 657. Because the new trial provision in the Expedited Jury Trials Act and section 657 deal with the same subject matter, it is appropriate that similar phrases in each provision should be given like meanings. (Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 116 [“Words or phrases common to two statutes dealing with the same subject matter must be construed in pari materia to have the same meaning”].) The grounds for a new trial in section 630.09, subdivision (a)(3) based on “corruption, fraud, or other undue means” are not listed as grounds for granting a new trial in section 657. However, they are the same terms used as grounds for moving to set aside an arbitrator’s award under section 1286.2, which states, in pertinent part, “the court shall vacate the award if the court determines any of the following: [¶] (a) The award was procured by corruption, fraud or other undue means.” Given that

review of an arbitrator’s decision is similar to review of a jury’s verdict in considering a motion for a new trial (see Lewco Iron Metals, Inc. v. Superior Court (1999) 76 Cal.App.4th 837, 843), courts can thus properly look to opinions discussing section 1286.2 in construing 630.09, subdivision (a)(3). (See Housing Authority v. Van de Kamp, supra, 223 Cal.App.3d at p. 116.) Courts can also rely on opinions construing the terms in sections 657 and 1286.2 in interpreting the meaning and scope of the terms is section 630.09, subdivision (a).

A closer look

• Judicial misconduct Although not specifically listed in section 657, judicial misconduct is a ground for granting a new trial under section 657 in non-expedited jury trials. (See Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 780.) Judicial misconduct is a ground for a new trial under section 657, subdivision (1), based on “Irregularity in the proceedings of the court.” (Ibid; Gay v. Torrance (1904) 145 Cal. 144, 149.) Judicial misconduct may occur in many ways, including a trial court prejudging a case (Murr v. Murr (1948) 87 Cal.App.2d 511, 521); being discourteous to counsel (Haluck v. Ricoh Electronics, Inc.

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(2007) 151 Cal.App.4th 994, 1003); and receiving information from sources outside the evidence presented at the trial (Guadalupe A. v. Superior Court (Davis) (1991) 234 Cal.App.3d 100, 109). Making erroneous legal rulings does not constitute judicial misconduct. (See Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796.) Expedited jury trials are meant to be swift. Nonetheless, the judge could commit misconduct if he or she was to rush a jury into reaching a verdict. The Expedited Jury Trials Act itself specifically provides that nothing in the Act is intended to preclude a jury from deliberating as long as needed.” (§ 630.05.) Judicial misconduct could occur if the

record demonstrates that the judge’s “overt conduct or statements show[s] jurors were pressured to close deliberations before they were ready . . . .” (Vomaska v. City of San Diego (1997) 55 Cal.App.4th 905, 912, fn. 12.) • Misconduct of the jury Misconduct of the jury is specifically listed as a ground for granting a new trial under section 657. (§657, subd. (2).) Courts should consult opinions discussing section 657 regarding the meaning of the term as used in section 630.09, subdivision (a)(2). There are many examples of jury misconduct, such as jurors’ concealment of bias on voir dire (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110); jurors communicating

with fellow jurors about information received from sources outside the evidence in a case (Smith v. Covell (1980) 100 Cal.App.3d 947, 952); and jurors rushing to reach a verdict (People v. Hutchinson (1969) 71 Cal.2d 342, 351). Indeed, just as a judge may commit misconduct by rushing a jury into a verdict, the jury too could commit misconduct if its “decision is so hasty as to indicate a flippant disregard of their duties.” (Vomaska v. City of San Diego, supra, 55 Cal.App.4th at p. 913.) Juror misconduct is typically demonstrated by juror affidavits regarding the alleged misconduct (see Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160), and section

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F 658 states that motions for a new trial under section 657 due to misconduct of the jury must be supported by affidavits. • Corruption, fraud, or other undue means Corruption comes in varied forms, but its most common iteration is when a fact-finder fails to disclose that he stands in some relation to a party, such as being in a personal relationship with a party or having personal knowledge of the subject matter of the dispute. (See Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal.App.4th 925, 937.) Fraud occurs when entities act in collusion in depriving a party of a fair hearing (Stockwell v. Equitable Fire & Marine Ins. Co. (1933) 134 Cal.App. 534, 539), and entails more than a mere error in judgment

(Kinkle v. Fruit Growers Supply Co. (1944) 63 Cal.App.2d 102, 108). (See generally Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [setting forth the elements of fraud].) Lastly, undue influence “connotes behavior that is immoral if not illegal” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 831), and includes communicating ex parte with a fact-finder (see Maaso v. Signer (2012) 203 Cal.App.4th 362, 373). Under section 630.09, subdivision (a)(3), when corruption, fraud, or other undue means are employed in the proceedings of the court, jury or adverse party, it must be additionally shown that the behavior “prevented a party from having a fair trial” in order to merit granting a new trial.

• Can the judge grant a new trial as the “13th Juror”? In non-expedited jury trials, a judge has power to grant a new trial based on the sufficiency of the evidence sitting as a “13th juror.” In assessing the sufficiency of the evidence under section 657, subdivision (6), “[t]he trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses.” (Holmes v. Southern Cal. Edison Co. (1947) 78 Cal.App.2d 43, 51.) Sufficiency of the evidence is not listed in the Expedited Jury Trials Act as a ground for a motion for a new trial. (See §630.09, subd. (a).) Moreover, a court has no inherent power to grant a new trial on this basis. (Fomco, Inc. v. Joe Maggio, Inc.,

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supra, 55 Cal.2d at p. 166.) Thus, a judge may not grant a new trial in an expedited jury trial merely because the judge would have reached a different outcome if the matter had been submitted to the judge in a non-jury, court trial.

• What about inconsistent verdicts? In non-expedited civil jury trials, “‘Inconsistent verdicts are against the law’ and are grounds for a new trial. [Citation.]” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005)

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126 Cal.App.4th 668, 682.) Inconsistent verdicts may occur “[w]here the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment.” (Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 101.) Nonetheless, in non-expedited jury trials, inconsistent verdicts constitute a ground for a new trial only because the verdict is against the law within the meaning of section 657, subdivision (6) (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.) Inconsistent verdicts are not grounds for a new trial based on jury misconduct; the jury in this situation errs, but not intentionally. (Ibid.) Therefore, under the Expedited Jury Trials Act, a verdict being against the law is not a ground for a new trial or for an appeal from a judgment. (§ 630.03, subd. (e)(2)(A), 630.09, subd. (d).) Nor does a court have any inherent authority to grant a new trial on this basis. (Fomco, Inc. v. Joe Maggio, Inc., supra, 55 Cal.2d at p. 166.)

Conclusion

“The goal of the expedited jury trial in California is to promote the speedy and economical resolution of cases and conserve judicial resources.” (Assem. Com. on Judiciary Rep. on Assem. Bill No. 2284 (2009-2010 Reg. Sess.) March 22, 2010, p. 4.) In assessing whether an expedited jury trial is a viable possibility, a lawyer and his or her client should carefully consider all the advantages and drawbacks, including the limited recourses available for moving for a new trial or for appealing the judgment. Alex Ricciardulli is a judge in the Los Angeles County Superior Court assigned to the court’s Appellate Division. He is co-author of California Criminal Law, The CALCRIM Handbook, and California Criminal Motions (West 2012), and runs the Daily Journal and Center for Judicial Education and Research’s MCLE and Judicial Education Articles Series.


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Hon. Elizabeth Allen White Los Angeles Superior Court

Thoughts on teaching the Constitution Seeing the U.S. Constitution through the eyes of foreign students Chief Justice Charles Evans Hughes observed that the Supreme Court is “distinctly American in concept and function.” He likewise noted that few other courts in the world have the same authority of constitutional interpretation and none have exercised it for so long or with as much influence. As the French political observer Alexis de Tocqueville noted, “[T]he representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans.” The power of judicial review has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to new situations. With these thoughts in mind, I set about to teach Constitutional Law to the foreign law students and lawyers enrolled at USC’s LLM Program. While the Constitution permeates all that I do as judge, it had been some time since I had looked at its provisions or the cases interpreting it. As I prepared to teach the class, I fully expected to learn the subject more deeply as I revisited some of the seminal cases. What I did not expect was the degree to which I would learn from my students who came from an array of countries: Nigeria, Australia, Japan, Korea, France, Italy and China. After introducing the students to a brief history of the creation and ratification of our Constitution and its Amendments, many students were surprised to learn that the framers were resistant to the idea of placing too much power in the national government. After explaining that complaints about British rule foreshadowed the protections placed in the Constitution and the Bill of Rights, the students began to understand the importance of civil liberties in the drafting of the Constitution.

A world view

After discussing our history, my first question to the students was whether their native country had a constitution and if so, how the constitution impacted their courts. While most countries had a constitution, some students, particularly the Nigerian student’s comments were most revealing. His

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country has enacted six different Constitutions during a 100-year period. One became inoperative due to the 1966 military coup; another never fully implemented because of the military rule in effect from 1993 until 1999. The Australian student revealed that while their Constitution dated back to 1900, it was given legal force by an Act of the United Kingdom parliament and it was not until 1986 that the Australia Act removed the power of the United Kingdom parliament to change the Constitution and provided prescribed referendum procedures. It was this Act that severed the last remaining constitutional links between Australia and the United Kingdom despite the fact that the monarch, Queen Elizabeth II, remains the monarch of both countries. The Japanese student explained that Japan’s Constitution was drafted under the Allied occupation that followed World War II and was intended to replace Japan’s previous militaristic and absolute monarchy system with a form of liberal democracy. The Japanese Constitution is rigid and has never been amended. It is most characteristic and famous for the renunciation of the right to wage war and for de jure popular sovereignty in conjunction with the monarchy. The Korean student explained that due to pro-democratic protests in 1987, a new Constitution became effective in 1988 which provided for an executive branch headed by a president and an appointed prime minister as well as a National Assembly and a judiciary consisting of a Constitutional Court, Supreme Court and lower courts. Of interest was the fact that the South Korean Bill of Rights qualifies individual rights by other constitutional provisions and pre-existing laws, including the National Security Act, which restricts due process rights in political cases. The French student explained that the French Constitution is that of the Fifth Republic enacted in 1958 and amended 18 times since. It creates a High Court and a Constitutional Council along with an Economic and Social Council. It was not until 1971 that the Constitutional Council was called upon to invalidate a law that

violated principles found in the preamble to the Constitution, including prior principles laid in the Declaration of the Rights of Man and of the Citizen. Italy’s Constitution came into force in 1948 and contained only general principles and requires enabling legislation, a process which, due to various political considerations, is still not complete. In China, the Chinese student explained that their Constitution is modeled after the 1936 Constitution of the Soviet Union and defines China as a socialist state under the people’s alliance of the working classes. It was enacted in 1982 and provides no special organization tasked with its enforcement but stipulates that the National People’s Congress has the power to review whether laws or activities violate the Constitution.

Judicial review

Perhaps the most interesting aspect of studying American Constitutional Law as a foreign student is the notion of judicial review. When Congress passed the Judiciary Act of 1789, the Supreme Court in Marbury v. Madison was called upon to determine whether it could exercise original jurisdiction in a case where the Constitution had not specifically provided for its jurisdiction. In holding that Article III did not give the Supreme Court original jurisdiction to issue a writ of mandamus as provided in the Judiciary Act of 1789, the Supreme Court established the right of judicial review over acts of the legislature. In declaring the Act unconstitutional, the Court stated “that a law repugnant to the constitution is void; and that courts as well as other departments, are bound by that instrument.” (Marbury v. Madison (1803) 5 U.S. 137 at 180.) For many of the students, the concept of judicial review espoused by Marbury v. Madison was a difficult one to understand. Many commented that if Congress had enacted legislation that the Supreme Court should not have the power to declare it void. Once they understood the language of Article III which narrowly prescribed the

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Supreme Court’s original jurisdiction, they began to see how The Judiciary Act of 1789 attempted to expand its jurisdiction beyond what was prescribed. They also began to understand the Supreme Court’s role in reviewing federal executive actions and federal statutes. This was expanded upon as we looked at two other cases – Martin v. Hunter’s Lessee (1816) 14 U.S. 304, and Cohens v. Virginia (1821) 19 U.S. 264 – which extended the right of review to state-court decisions. There was a lively discussion about why Congress itself was unaware of the Constitutional limits. After all, in many of their countries, constitutional councils existed for the purpose of insuring that legislation passed constitutional muster. Furthermore, what if no one had brought the issue to the Supreme Court’s attention, how would our country insure that legislation met constitutional requirements? Did issues simply have to percolate through the courts in litigation?

It was obvious from the question that the concept of judicial review was foreign to many of the students from countries where the constitutional review of government action is not within the judicial branch. In Germany and in post-1958 France, there is constitutional review but not in the ordinary courts, which are not allowed to rule on the constitutional status of government action. There are instead constitutional courts, with members chosen by the political branches. Before 1945, constitutional review was virtually unknown outside the United States. After World War II, the idea of constitutional control began to take hold in both Europe and Japan as well as in newly developing countries. In England, constitutional review is a political rather than a judicial function. Accordingly the students learned that because judicial review is an ordinary activity of American courts, a constitutional chal-

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lenge can occur only when there is litigation. Thus, American courts can examine the constitutionality of a statue only if the case or controversy requirement is fulfilled. Conversely, judicial review in continental Europe is exercised by special courts outside the ordinary judicial system and which retain a jurisdictional monopoly over constitutional issues. In contrast to Marbury v. Madison, when the Supreme Court declared that the judiciary’s role is to say what the law is, and whether it is constitutional, courts in Europe do not possess jurisdiction to disregard a statute repugnant to the constitution. The Italian student remarked that ordinary civil, administrative and commercial courts refer constitutional issues to the constitutional court. The French student commented that there is no review of enacted legislation at all. France’s Constitutional

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Council can examine the constitutionality of a proposed statute only before it becomes law and can offer advice on how an unconstitutional statute can be redrafted in a constitutional fashion. Unlike the American system where the constitutionality of a statute is asserted within litigation, judicial review in many of the civil law countries of Europe is exercised regardless of the existence of a legal dispute. In such a challenge, the determination is not factdriven but simply a consideration of the lawfulness of legislation. In America, the binding effect is a result of stare decisis. In discussing the benefits of American Constitutional law, the students commented that the review of constitutionality by an independent third branch of government ensured that lobbying did not play a part in the outcome. Likewise in the absence of an independent branch of government, if the legislation under scrutiny affects only a

minority of the population, the minority would not have the political clout to determine the outcome, making the process inherently political.

Fundamental rights

Through the due process clauses of the Fifth and Fourteenth Amendments and/or the equal protection clause of the Fourteenth Amendment, the American Constitution protects certain “fundamental rights” with which the government cannot interfere unless strict scrutiny is met. Those rights include rights protecting family autonomy, procreation, sexual activity, medical-care decision making, travel, voting, access to the courts and the right to bear arms as well as freedom of speech and religious freedom. Criminal protections are insured thro ugh the Fourth, Fifth and Eighth Amendments.

These rights are entrenched and form the backbone of our basic human rights, even though not all of these rights are explicitly mentioned. Interestingly enough, statutory law such as the Civil Rights Act of 1964 has become almost equally entrenched in safeguarding equal rights suggesting that insuring these rights can be addressed both by constitutions and statutory law. This concept was beautifully illustrated when several students offered comments about their native countries. In the United Kingdom, there is a statutory bill of rights known as the Human Rights Act of 1998 which, while it does not empower courts to invalidate inconsistent statutes, has nonetheless been treated as a system of constitutional review. Demonstrating the importance of human rights, both Germany and postapartheid South Africa place the equivalent of

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the United States’ Constitution’s Bill of Rights at the beginning of their Constitutions.

Equal protection of the laws

In examining equal protection, the students learned that the right to equal pro-

tection of the laws was not made explicit in our Constitution until the Fourteenth Amendment was passed in 1868 with the hope of extinguishing slavery. They also learned that while the Constitution expressed the view that “all men are created

equal”, the concept really only applied to “white men.” This was an uncomfortable subject for me to address to a group of students who were mostly of color. I could sense how shocked the students were by the “separate but equal” doctrine of Plessy v. Ferguson (1896) 163 U.S. 537. To attempt to convey the concept, I had the students watch the video Beyond Brown – Pursuing the Promise, a PBS documentary released in 2004 on the occasion of the 50th Anniversary of the Supreme Court’s decision. The images of the wooden shacks which served as schools for black students vividly contrasted with the handsome brick buildings serving the white students. This led to a discussion of whether the objectives of the Supreme Court’s objectives had been achieved. Since the Brown Court had not dealt with socio-economic issues, the students felt that even though schools were attempting to integrate, the lack of equal funding for the schools did almost as much to defeat integration as physical separation by race.

Voting rights

Interestingly enough in the Fall 2012 class, the students were mesmerized by the Presidential Election in November. After the results were determined, I asked the students to discuss their thoughts on the process. The Nigerian student became emotional in his response. He was stunned by how cordial the candidates were to one another in their acceptance and concession speeches. He was struck by how peaceful the process was and observed that in his country, elections were uniformly followed by riots and challenges to the legitimacy of the vote. While there are four Amendments which address voting rights, emphasis was placed on the 15th Amendment’s assurance that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Voting is essential to a democratic society and it is through this process that citizens choose their government and hold it accountable. (Reynolds v. Sims. (1964) 377 U.S. 533,555.) Despite this affirmation, the students expressed concern about the holding in Bush v.Gore (2000) 531 U.S. 98. If voting

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was so important to a democratic society, why were not all votes counted in Florida? The notion of hanging chads was almost comical. After all, America was a country known for its use of technology. The lack of standards for counting votes was mystifying.

Analysis of the court’s decision provided us with few answers.

Abortion and gay rights

Equally interesting were the discussions on abortion and gay rights. In

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Australia, abortion is determined at the state level and is governed by state laws, the most restrictive state allowing it only to save the life of the mother and the most liberal allowing it on request. Nigeria allows abortion to save the life of the mother only. In Japan, while abortion is allowed, parental or spouse consent is required. In England, Italy and France, abortion is allowed for most reasons including economic or social reasons. Some students came from countries that recognized domestic-partner protections or allowed gay marriage, whereas others such as the Japanese students acknowledged a trend towards acceptance of gays but recognized that being gay used to be considered a mental illness. Catholic countries such as Italy had not yet acknowledged gay unions. France and Germany had civil-union laws and the French recently allowed gay marriage. As we looked at the Roe v. Wade decision and its discussion of the right to privacy, the students read Justice Blackmun’s review of the history of abortion from ancient attitudes through English and American law to the present. He likewise discussed the medical technology allowing for safe abortions. Blackmun then focused on the Fourteenth Amendment by saying “[T]his right of privacy, whether it be founded in the Fourteenth Amendment’s conception of personal liberty and restrictions upon state action, as we feel it is, or, . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade (1973) 410 U.S. 113 at 153. The Roe v. Wade decision spurred a discussion of constitutional methodology. Should the Court protect such a right that is not specifically mentioned or intended by the framers? Some students felt that it was a logical inference; others were more constrained in their view, feeling that it was not something the Constitution should address but rather something which should be addressed by legislation. This question was posed in terms of all of the rights concerning family which have been held by the Court to be fundamental. Rights such as the right to marry, the right to custody, the right to keep family together, the right to control the upbringing of children,

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the right to procreate, and the right to purchase and use contraceptives are all rights not specifically mentioned but which are nonetheless rights which the Court has

upheld on the basis of “liberty” which the Fourteenth Amendment says no state may deny to any person “without due process of law.”

Concluding thoughts It is rare that one learns more from one’s students than the students learn from the instructor. This was one of those rare instances. I saw our Constitution through the eyes of my students. I learned about their governments and their observations of our history. Attempting to explain our country’s attempts to remedy slavery through Brown v. Board of Education was humbling. Discussions of human rights were exhilarating not just because our Court has read the Constitution broadly, but because we frequently take those rights for granted. The right to vote and have one’s vote count was never more poignant than when hearing from a student who couldn’t ever count on his vote making a difference. And yet, I had trouble reconciling the holding in Bush v. Gore with the students’ comments. We sometimes take our Constitution for granted. It is good to go back and appreciate its intricacies. Notions of substantive and procedural due process infiltrate my day-to-day decision making, But, learning about them anew through the eyes of my students made it all the more poignant. Judge Elizabeth Allen White sits in Department 48 of the Stanley Mosk Courthouse where she handles general jurisdiction trial matters. She was appointed to the Los Angeles Municipal Court in 1997 and elevated upon unification to the Los Angeles Superior Court where she’s served since 2000. She holds a B.A. from UCLA and a JD from Loyola Law School. She obtained her Paralegal Certificate from UCLA Extension in 1977 and has served as an Instructor for their Paralegal Training Program since 1998. She was honored with their Distinguished Instructor award in 2007 and Professional Achievement Award in 2012. She serves as frequent faculty for Continuing Judicial Education and served on the Board of the Governors of the California Administrative Office of the Court’s Center for Judicial Education and Research. She is the author of the Rutter Group’s California Paralegal Manual on Civil Procedure and a co-author of the California Paralegal Manual on Civil Trials and Evidence and California Paralegal Manual on Corporations. She is co-chair of the Judicial Education Committee for the Los Angeles Superior Court.

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Book Review Donna Bader

DOMA and Prop 8 struck down: What does it mean for lawyers? The gay struggle for legal equality and the impact of the Supreme Court’s July decisions on everything from estate planning to employment discrimination to tax law In May 1970, Jack Baker, a student at the University of Minnesota, applied for a marriage license so he could marry his lover, Jim McConnell. That application was denied. The Minnesota Supreme Court ruled in 1971 in Baker v. Nelson that “the institution of marriage as a union of man and woman uniquely involving the procreating and rearing of children within the family is as old as the book of Genesis.” (Baker v. Nelson (1971) 291 Minn. 310.) Fourteen years after Jack Baker applied for that marriage license, the City of Berkeley became the first U.S. city to pass a “domestic partners” law for municipal employees. (See http:// www.ci.berkeley.ca.us/Clerk/Home/ Domestic_Partnership.aspx) This new law ensured gay, lesbian and unmarried 84 — The Advocate Magazine

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heterosexual couples could receive the same benefits as married couples in health care and bereavement leave.

DOMA, a brief history

Through the years, court rulings began to extend rights to gay couples for purposes of rent control, medical and spousal benefits, family leave rights, etc. Of course, there was a backlash by other states that chose to ban gay marriages. For instance, under Utah Gov. Mike Leavitt, the first state Defense of Marriage statute was enacted, which refused to recognize gay marriages that were legal even if legally performed in other states. The federal Defense of Marriage Act (DOMA) was signed into law on September 21, 1996, by President

Clinton. (See http://en.wikipedia.org/ wiki/Defense_of_Marriage_Act.) It defined “marriage” as “a legal union between one man and one woman as husband and wife” and defined a “spouse” as “a person of the opposite sex who is a husband or a wife.” Those definitions impacted 1,049 laws determining an individual’s eligibility for federal benefits, rights or privileges. Just as progress in legalizing gay marriage is being made, opponents have made inroads in fighting off gay marriage. Religious groups have also experienced the same division. In 2000, U.S. rabbis at the Central Conference of American Rabbis, agreed to sanction religious ceremonies for same-sex couples. Three years later, the Vatican launched a

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global campaign that claimed supporting same-sex unions was “gravely immoral.” In 2003, Rep. Marilyn Musgrave (RCO) introduced a proposed amendment to the U.S. Constitution, which defined marriage as “the union of a man and a woman.” In that same year, a poll showed a majority of Americans opposed samesex marriage. Even President Bush weighed in, confirming he wanted to preserve heterosexual marriage.

San Francisco leads

By February 12, 2004, the City of San Francisco had begun marrying samesex couples. City officials sued the state over the right of gay people to marry. Governor Arnold Schwarzenegger, ordered his Attorney General to intervene and stop San Francisco from issuing marriage licenses. (See, http://en.wikipedia.org/wiki/San_Francisco_ 2004_same-sex_weddings.) The California Supreme Court refused the Attorney General’s request to invalidate 3,400 same-sex marriages but then ordered a halt to any further weddings in March 2004. Equality California and others filed a lawsuit challenging the constitutionality of California’s marriage laws,

arguing that denying same-sex couples the right to marry violates the Constitution’s guarantees of equality, liberty and privacy. In Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, the California Supreme Court voided many same-sex marriages. The ruling, which nullified nearly 4,000 marriages, was a 52 decision. That didn’t stop judges in the state from ruling that the same-sex marriage ban was unconstitutional, or legislators from introducing legislation giving gays more rights and opposing bans on other rights. Then in 2008, the California Supreme Court in In re Marriage Cases (2008) 43 Cal.4th 757 overturned a ban on gay marriage, concluding that limiting marriage to heterosexual couples violated the Equal Protection Clause of the California Constitution.

Proposition 8: Voters say no

Not to be outdone, California voters approved Proposition 8 in 2008 as a measure to ban gay marriage, which in effect amended the California Constitution to provide that only heterosexual marriages were valid. During the

time period between the California Supreme Court’s ruling and the approval of Proposition 8, an estimated 18,000 same-sex couples had wed. It was reported that more than $74 million was spent by both sides in fighting for and against Proposition 8. The constitutionality of Proposition 8’s ban was upheld by the California Supreme Court in 2009 in a 6-1 decision in Strauss v. Horton (2009) 46 Cal.4th 364. Justice Carlos Moreno filed the sole dissent. (See An Afternoon with Justice Carlos Moreno in this issue.) The justices voted unanimously to keep the 18,000 marriages entered into before the election intact. Two same-sex couples filed suit in federal court, challenging Proposition 8 in Perry v. Schwarzenegger. Even though they were named as defendants, the Governor and Attorney General refused to defend the law. U.S. District Judge Vaughn Walker allowed the official proponents of Proposition 8 to intervene to defend it. After a 12-day bench trial, Judge Walker concluded the ban violated the constitutional due process and equal protection rights of the two couples who sued.

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The ruling in Perry v. Schwarzenegger was appealed to the Ninth Circuit, which certified a question to the California Supreme Court as to standing, which the California Supreme Court in Perry v. Brown (2011) 52 Cal.4th 1116 found to exist to allow the proponents to appeal the decision. In 2012, the 9th Circuit ruled that the official proponents indeed had standing under federal law in Perry v. Brown (2012) 671 F.3d 1052, but it affirmed the district court’s judgment that Proposition 8 was unconstitutional. That appeal reached the U.S. Supreme Court in that same year along with United States v. Windsor, which challenged the Defense of Marriage Act (DOMA). (See, 1 U.S.C.S. sec. 7.) In that case, Edith Windsor brought an action as executor of the Estate of Thea Clara Spyer, seeking a tax refund after the estate was disallowed from receiving an estate tax exemption for surviving spouses. The action was brought in New York, which recognizes same-sex marriages. Windsor and Spyer had been in a longterm relationship since 1963 and were wed in Ontario, Canada in 2007. After her death, Spyer bequeathed her proper-

ty to Windsor. Because Windsor was not entitled to the tax exemption, she was required to pay $363,053 in estate taxes.

A day to remember

On June 26, 2013, a day that will be celebrated for years to come, the United States Supreme Court handed down two decisions: In Hollingsworth v. Perry (2013 U.S. Lexis 4919), the United States Supreme Court was faced with the issue whether the Equal Protection Clause prohibits the State of California from defining marriage as the union of a man and a woman. Respondents framed the issue differently: because California had previously recognized the right of same-sex couples to marry, could that right be taken away through a referendum? For several years, the country has waited anxiously for a decision in this case. Some predicted that the Court would take a narrow approach and reject it on standing grounds, thus avoiding the larger issues. It did so but its decision handed same-sex marriage supporters a win, at least in California. Chief Justice Roberts wrote the majority opinion, finding that the appellants lacked standing,

which required them to have suffered a “concrete and particularized injury.” Petitioners had only shown a “generalized grievance,” which was insufficient to confer standing. Chief Justice Roberts concluded, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” As a result, neither the Ninth Circuit nor the U.S. Supreme Court had authority to decide the case on the merits, thus leaving the District Court’s judgment intact. Justices Kennedy, Thomas, Alito and Sotomayor dissented, noting that “[t]he Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials – the same officials who would not defend the initiative, an injury the Court now leaves unremedied.” In United States v. Windsor (2013 U.S. Lexis 4921), the United States Supreme Court noted that the definition of Defense of Marriage Act, amended the Dictionary Act, and provided rules of

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construction for over 1,000 federal laws and many federal regulations that defined “marriage” and “spouse.” The Court, in a majority opinion written by Justice Kennedy, concluded DOMA was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment by violating due process and equal protection principles. In rendering this decision, Justice Kennedy noted that “[t]his opinion and its holding are confined to those lawful marriages,” thus recognizing that other states may enact laws banning same-sex marriage. Chief Justice Roberts, and Justices Scalia and Alito filed dissents, opining the Court lacked jurisdiction to review the dispute and that DOMA was constitutional. Chief Justice Roberts wrote, “Interests in uniformity and stabil-

ity amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.” However, there are now approximately 13 states and the District of Columbia that recognize same-sex marriages. In addition, there are 14 countries, including Canada, Spain, and Portugal, that allow same-sex marriages. France was the most recent country to legalize these marriages, even though it has been hit by a number of protests due to this action.

The winds of change

The winds of time are changing public opinion on same-sex marriages. A new Gallup poll conducted in May 2013

shows that 53 percent of Americans now support gay marriage. But what do these decisions mean for plaintiffs’ attorneys? • As noted in the Court’s decision, there are over 1,000 federal laws that rely on the definitions set forth in DOMA. Thus, any time a case involves a same-sex marriage and federal law, especially benefits and rights, come into play, the spouses should receive equal treatment under the law if the state law approves same-sex marriages. The result could be quite different if the state bans same-sex marriages, continuing an inequality in obtaining federal benefits and rights. • Some critics have expressed concern that these decisions will weaken the state’s initiative process, by allowing state

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officials, such as the Governor or Attorney General, to give approval to an initiative by refusing to defend it. Thus, the State would have the power to nullify an initiative. A state law could be enacted requiring the Attorney General to defend voter-approved initiatives or to allow initiative supporters to do so. • The decisions did not provide a broad ruling that same-sex couples have a right to marry, and indeed, states may continue to legislate bans to same-sex marriages, which may be ruled on one day by the Court. • The decision in Windsor will have an impact on immigration laws, such as where a resident attempts to bring over a foreign spouse or where the foreign spouse applies for a green card, work permit, or fiancé visa. (See, http://

www.lambdalegal.org/publications/ after-doma-immigration.) • The decisions could have an impact on employee rights, especially where an employee asks an employer to be transferred to a state that allows same-sex marriages or refuses to take a position in a state that denies that right. • Windsor creates questions as to how to file tax returns. The answer is simple if the couple lives in a state where same-sex unions are legal, but if not, they may have to file their federal tax returns jointly and their state returns would be filed separately. • In determining the applicability of any of these laws, a lawyer would have to consider the language of the statute; some depend on domicile while others depend on the state where the marriage was performed.

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90 — The Advocate Magazine

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• Some have expressed concern that Hollingsworth v. Perry only applies to the two same-sex couples who filed the lawsuit; however, given the number of weddings being performed after June 28, 2013, when the stay was lifted, that does not appear to be a serious concern. Opponents of same-sex marriage filed a petition for writ of mandate, asking for a stay and arguing Gov. Jerry Brown lacked the authority to end enforcement of Proposition 8. They also argued the Court’s ruling only applies to the plaintiffs and not to nonparties. The stay was denied, although the Court is still considering the writ petition. (See Hollingsworth, et al. v. O’Connell, Case No. S211990.) • The legal profession will benefit, especially in areas such as estate planning, adoption, marriage, and divorce. There is also the potential for further employment discrimination, which will require an examination of both federal and state laws. These decisions by the United States Supreme Court gave gay couples much to celebrate. They did not solve all of the problems, and many felt that the Supreme Court did not go far enough by taking a narrow approach based on standing in Hollingsworth v. Perry. Some have also criticized the decision in United States v. Windsor because the justices did not conclude the right to marry is a fundamental right, which has a broader application to states that ban same-sex marriages. For now, these decisions do give many same-sex couples the freedom to marry, but it also provides some confusion to others, and as a consequence, more work for lawyers and wedding planners. Donna Bader, a certified appellate specialist, has practiced for over 35 years in Orange County. She and trial attorney Jon Mitchell Jackson were recipients of a 2013 CLAY Award for litigation by California Lawyer magazine. Bader is the author of An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial, which was written to help trial attorneys protect their cases before they reach the appellate stage. www.AnAppealtoReason.com.


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Book Review Donna Bader

An afternoon with former Justice Carlos Moreno Recently nominated as U.S. Ambassador to Belize, the justice reflects on the making of judicial decisions As an appellate attorney, I was really looking forward to sitting down with former Justice Carlos Moreno and asking him questions about his life, and particularly, his work Moreno while serving as a justice on the California Supreme Court from 2001 to 2011. But to conduct an interview in Costa Rica? Well, you just can’t beat the atmosphere. I am not saying that it allows for the discovery of well kept secrets, but it did provide a relaxing time to discover more about this fascinating man. Just shortly before the trip, it was announced in July that Justice Moreno was nominated for the position of U.S. Ambassador to Belize. DB: I’ve heard you are being considered as the next U.S. Ambassador to Belize. Are you interested? JM: Oh, yes, it’s been a lifelong dream. I’ve thought about it going back to my high school yearbook when I wrote that I wanted to be in international business. I’ve always wanted to go into international business and dreamed of living abroad for a period of time. I thought it would be great to live in another country, mix with the people, and experience a different culture. What better way to do it than as a representative of the United States of America! The appointment would be fulfilling a dream I had as a teenager. DB: It sounds like your life is a real success story. How did you get from there to here? JM: When I was a child, we were poor. I lived in a neighborhood near Dodger Stadium. It was a mixed neighborhood with Chinese, Italians, Slavs and Mexicans. Everybody was the same so I 92 — The Advocate Magazine

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didn’t really know I was poor. It wasn’t until I was an undergraduate at Yale that I got the sense I didn’t have all of the advantages of East Coast kids. DB: There are probably a few steps between then and Yale. JM: I was always a good student and saw myself as going to an Ivy League school as early as the 10th grade. I set my sights very high and did what I had to do to get there. DB: Is it true that you were the first in your family to graduate from college? Did your family put a strong emphasis on education? JM: I was very self-motivated and also responded well to positive reinforcement. I never had any pressure placed on me to do well in school. I had a very stable family environment and I think that stability was very important. We never moved around so I didn’t have to make new friends. It was an idyllic upbringing. DB: Did you always want to be a judge? JM: Unlike Justices Kagan or Sotomayor, who both wanted to become judges early in their school years, I didn’t think about being a judge until I was in my 10th year of being a lawyer. When I graduated from high school and then college, I wanted to get an MBA and go into business. I went to business school for about a month until I realized I was in over my head. Becoming a lawyer was what a lot of people were doing at Yale. Military deferments were expiring and I knew I could be drafted. So that was always on my mind. As a young lawyer, I started out in the Los Angeles City Attorney’s Office. The City Attorney was trying to restore what was called the “Golden Age of the City Attorney’s Office” under Burt Pines in the late ‘70s. I appeared before many

distinguished judges. I felt they were making the right decisions for the right reasons. But I also appeared before judges who weren’t so distinguished, and I believed I could make better decisions than they were making. I was constantly in court with trials back-to-back. I had a lot of trial experience, something young lawyers don’t get today. I saw a lot of judges and felt a comfort level in the courtroom. I thought being a judge was a nice position and felt I could do it well. DB: Did you encounter a lot of bias? JM: Not where I was the actual victim of it, but I certainly saw a lot of gender and same-sex orientation bias. There were stray comments. I think it was much worse then than it is now. I saw bias in jury selection as well by lawyers who stereotyped certain races. In fact, I am very proud that in December of 1978, about three months after People v. Wheeler [(1978) 22 Cal.3d 258] came out, I was the prosecutor in a case with an AfricanAmerican victim and a Hispanic defendant. The defense lawyer proceeded to kick off all the African-Americans from the jury. It was so obvious and I objected. People thought Wheeler was a one-way street that only applied to the prosecution. I argued that Wheeler was really reciprocal – what was good for the goose was good for the gander. Judge Nelson, now deceased, bought my argument and ruled that Wheeler applied to both. DB: As a justice, you must have reviewed a lot of petitions for review. How does an attorney maximize their chances for review before the California Supreme Court? JM: The California Supreme Court is a court of discretionary review. Probably less than three percent of the petitions for review are granted. We are not a court of justice. The principal job of the Supreme

Moreno continues


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Moreno — continued Court is to settle conflicts in the law between two or more districts or to address issues of statewide concern, such as propositions that will affect the entire state. When I was a justice, we received 200 petitions a week. About 80 percent of the grants are based on a conflict. Our staff – both the central and criminal staff – went through the petitions with a finetooth comb. Then they would make recommendations to the justices on the Court. Each of us had five staff attorneys. They were all very smart attorneys, career attorneys, and they developed a specialty in different areas of the law, so the Court always has that institutional knowledge on a lot of these issues that come up. Many times the memos will say this case is not ready yet based on procedural grounds, such as a demurrer, and there are additional things to do on that case. Or the facts may be so unique that a clear rule of law might not emerge. The justices met every Wednesday. It takes four votes to grant review. Typically, one or two petitions are granted every week. It can be an outright grant or sometimes we’ll send the case back to the Court of Appeal and request the appellate court write an opinion. DB: How does an attorney handle having seven justices shooting questions at them? JM: One of my jobs now is to advise young attorneys who are going to argue before the Court. I tell them that the sound system at the Supreme Court is a bit temperamental and a voice might come from one direction while the speaker is in a different direction. And even though the attorney might have a chart with the names of the justices, I recommended that they not try to memorize the name of the justices. You run the risk of mispronouncing a justice’s name. Just say “Your Honor” or “the Court.” DB: What should an attorney do when one justice asks a question and the attorney is in the middle of answering it, and

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Moreno — continued

then another justice jumps in? Sometimes it seems as though they are fighting over you. JM: Well, you might say, “To finish answering your question. . . ,” and then go back to the first question while keeping in mind the second question. The justices will step over each other in asking questions so you have to wait until you finish answering one question before answering the next one.

DB: You were the only justice to vote to overturn Proposition 8 [in Strauss v. Horton (2009) 46 Cal.4th 364]. Was that a hard decision for you? JM: No, it wasn’t a hard decision. Let me explain; it was hard in the sense that a judge is obligated to follow the Constitution, and notwithstanding that we voted 4-3 to invalidate the statute, once Proposition 8 passed, you had to follow the Constitution. So I thought long and hard, and the reason I dissented was not so much that I disagreed with the Proposition, but it was the way they effected the change. My dissent was really a technical dissent that the Constitution was not properly amended. There were about 9-10 cases dealing with

DB: So, are they playing with us? JM: Well, yes. There is limited time and if they feel you have responded, they will cut you off and ask another question. That has to be pretty distressing for the advocate to be interrupted midstream by a justice.

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amendments to the Constitution and how you do it. I concluded the Proposition amounted to a revision, not an amendment, and the process by which it was passed did not comply with the provisions for revising the Constitution. Because it was a revision, a majority vote was required by the Legislature and basically called for a constitutional convention to make the widespread changes that were made. I relied on an earlier 4-3 decision in In re Marriage Cases (2008) 43 Cal.4th 757, which confirmed that marriage was a fundamental right. We held that sexual orientation is a suspect class, and we also found other fundamental rights were involved, such as the rights to privacy and freedom of association. Taking that bundle of rights, changing them, and applying it to a suspect class, who was being discriminated against, was a radical revision. I approached it that way. In one sense, it was creative, but it was really the only way I could go. Audience Question: In deciding a case, would a justice tell his or her staff that “I want to find a way around this”? JM: You mean seeking to apply a resultsoriented approach? Absolutely, we’ve done that. Once a petition for review is granted, the case is assigned to a particular justice. A tentative opinion is drafted and circulated to learn the views of the other justices. Once you get four (or) three other justices to agree with you, the case is set for oral argument. So, when the attorneys go to oral argument, there is already a tentative majority. I can remember a couple of instances where I was losing my majority after oral argument. At that point, the justice can either give it up or modify the opinion to satisfy everyone. There were times I told my law clerk that I didn’t want to give up my opinion, so be creative or think of ways to save the decision. Audience Question: Did you do any horse-trading with the other justices where you will agree to side with them if they will side with you?


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JM: It doesn’t go on with an unrelated case, but possibly in the same case. You might have some discussions or backand-forth on multiple issues, both before as the cases are worked up and after oral argument, especially where you might be losing the majority vote and you want to keep it. So there is some amount of pushing and pulling, but not as much as you might think. DB: At what point do you reveal you want to dissent? JM: After the memo or draft opinion is circulated, you have about 15 days to respond. You have a range of choices: you can concur, concur with comments or reservations, or you might indicate you are doubtful. Then the author can deal with your response. You can also indicate from the very beginning you disagree and write a lengthy memo that becomes the dissenting opinion. Or you can write a dissenting opinion you can circulate before oral argument. The advantage of doing that is when the justices go back into chambers after oral argument, if someone has written a dissenting opinion, then they also get to make a presentation. And then they vote. DB: Some people have said that your decision in the Proposition 8 case cost you a seat on the U.S. Supreme Court. What do you say to that? JM: It’s true that our decision came out on May 26, 2009. Justice Souter had announced his retirement in April, but I knew as early as March that I would be dissenting in Strauss v. Horton [(2009) 46 Cal.4th 364]. Some people said I could have just changed my mind and made it a 7-0 opinion, but I really couldn’t do that given my beliefs and reasons for my dissent. So, I never thought about changing my opinion. Did it cost me the position? No, I don’t think so, because in 2008 the marriage cases came out, and I was part of a 4-3 majority. If anything was going to sink me, it would be that case, which was decided before President Obama was elected. There were also other decisions, such as my opinions on arbitration,

which were not very business-friendly. And one of my early decisions on gun control. The more I thought about it, the more I realized there were a number of groups that would be strongly against me. I was asked by the White House if I would be willing to go through the vetting process, and I said “yes.” It would have been a big sacrifice, but I would have gone. But in retrospect, things turned out for the better. DB: On a personal note, you have been very active in a foster home situation. How did that come about?

JM: My wife and I got involved in foster care by adopting a disabled young girl in 2008. She is autistic, had no language, and had temper tantrums. She is now 17. We gained experience in applying for aid at the state and local levels in an effort to get benefits for her. It was a real educational process for me. And even though I was a federal judge and then a Supreme Court justice, we had a lot of difficulties in enforcing those rights. So, that is how I became interested and got involved in trying to improve the foster care system. Donna Bader can be found on the Web at www.AnAppealtoReason.com.

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Jonathan M. Brand

Making workers’ comp work for you and your client The new rules of workers’ comp and how WC intersects with personal injury law I get it. Workers’ compensation is the stepchild to personal injury. From time to time you need to deal with it, but for the most part you wish it just wasn’t there. The reality is that in many serious personal injury cases, workers’ compensation is a part of the process. It is my contention that by taking the time to understand a bit more about workers’ compensation, you can make it work for you instead of against you. You already know about liens and credits, and I will touch on those concepts here as well. However, the focus is more on the nuts and bolts of workers’ compensation and how it affects your personal injury case. This article is to help you identify ways of making the workers’ compensation system work for you as much as possible when personal injury and workers’ compensation “cross-over.” Medical legal process QME and AME

(Free experts) • The QME In the good old days, each side had the opportunity to select their own medical expert to address the issues that come up in workers’ compensation: permanent disability, temporary disability, medical care and retraining. This expert was called the qualified medical evaluator or QME for short. Now we have a ridiculous system called the panel QME process. Instead of each side selecting their own expert, the “panel QME” is selected by the medical unit – a division of the Workers’ Compensation Appeals Board. The medical unit issues a list of three doctors. Each side can strike one and the last one standing is the QME. For the most part, the specialty is determined based on which party wins the race to the courthouse. Why should you care since none of these workers’ compensation rules prevent you from selecting your own expert for the personal injury trial? There are several reasons to pay attention to the workers’ compensation panel process: 1. Imagine if the panel QME has the same opinion as the defense expert in your personal injury trial. The defense will

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hammer you with this. Ladies and gentleman of the jury, the evidence shows that our expert agrees with the neutral doctor appointed by the State of California. Wouldn’t it be better if the panel QME agreed with your expert? 2. The panel QME can be your expert in the personal injury trial. In smaller cases it can be an advantage to use the panel QME as your expert at trial. The QME evaluations are very comprehensive. The reports generated would likely run into thousands of dollars if you were to request them in the personal injury case. The workers’ compensation carrier pays for the evaluation, the initial reports and any supplement reports – you don’t pay a dime. Save your budget for the trial. The idea here is not to make you an expert in the panel process. The idea is to motivate you to work with the workers’ compensation attorney early in the case about strategy and themes so that you increase the probability of the panel process working in your favor. 3. The panel QME can order diagnostic tests and consults with other physicians. The rules require that the tests and consults be paid for by the workers’ compensation carrier. Testing may include but is not limited to neuro-psych testing, MRIs, nerve conduction testing and the like. The workers’ compensation attorney can make sure that the tests are authorized and get done. One word of caution here – there are very strict rules regarding ex parte communication with the panel QME. Given that the comp carrier wants your help to get paid back by the defendant, you can usually work something out. • The AME The parties in a workers’ compensation case have the option to agree on an evaluator by selecting an Agreed Medical Evaluator (AME) and therefore skip the panel process outlined above. Since the issues in the workers’ compensation case may be very different from the issues in the personal injury case, the AME may not agree with your expert. In addition, many AME-quality physicians will not participate willingly in a personal injury case. A negative opinion by the AME can be devastating

to your case since your client’s other attorney agreed to the doctor. Again, I strongly recommend communication with the workers’ compensation attorney to avoid conflicts. You should have input as to any doctor selected as the AME. Call and talk to the workers’ compensation attorney before an AME is selected. Medical Provider Networks (MPN)

(Who is going to fight for plaintiff’s treatment?) Gone are the days when an injured worker could simply select any doctor of his or her choice. In most cases the injured worker will be permitted to select a doctor only from the Medical Provider Network or MPN. I would review the list of doctors with the client and the workers’ compensation attorney. Make sure that the doctor selected will cooperate in the personal injury case. There are no ex parte rules as to treating doctors. You can talk to them in advance to determine availability and fees. In addition, the rules allow for second and even third opinions within an MPN. Making sure our clients receive the treatment they need should be a priority for all of us. Temporary Disability

(Being mindful of the limits) One of the most important benefits of comp is temporary disability or TD. It should be noted that for injuries on and after 2004, TTD benefits are capped at two years. In some cases the injured worker can continue to stay on disability for up to an additional year if they qualify for state disability. In order to qualify for TTD, the injured worker’s disability status must be supported by the authorized treating doctor. In the event a dispute over TTD comes up, the issues can be resolved in workers’ compensation court. You will want to work with an applicant’s attorney who is willing to take the time to go to court over these issues. Permanent Disability

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Workers’ Comp continues


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Workers’ Comp — continued

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purposes, they are declared permanent and stationary. A rating is obtained through the medical-legal process I have described here. In some cases permanent disability is advanced prior to settlement. Since 2004, disability ratings are based on the AMA Guides to the Evaluation of Permanent Impairment 5th Edition. Therefore, a medical expert in the personal injury case can testify as to any whole person impairment. Whole person impairments can also be used for settlement purposes in the personal injury arena. Vocational experts

(More free experts) In more serious comp cases, it is customary for vocational experts to be retained by both sides in a workers’ compensation case. The case law is relatively clear that the defendant in the comp case pays for the cost of the VR experts.

Therefore, if you have an earning capacity claim or other types of income loss claims, this is another way to obtain an expert opinion on the defendant’s dime. I would suggest communication with the applicant attorney so that the expert selected in the workers’ compensation case is also someone that will be helpful in the personal injury case. Now playing – the Independent Medical Review

(Uncharted waters) As of July 1, 2013, all disputes over treatment go to Independent Medical Review or IMR. Needless to say we really don’t know how this is going to work at this point. I think the take-away is that you need to work closely with the applicant’s attorney to be sure the client gets the treatment they need. One thing already

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AUGUST 2013

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Workers’ Comp continues

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Workers’ Comp — continued

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pensation carrier has a lien against the personal injury recovery. In addition, the workers’ compensation carrier can claim a credit in the amount of the plaintiff ’s net recovery from the personal injury case. Other issues in connection with the lien where employer negligence is present have been discussed in other articles so I will not address them here. But, have you considered that when you settle the personal injury case before settlement of the workers’ compensation case, the credit may not only preclude further workers’ compensation benefits but may in fact wipe out the applicant’s attorney’s fee? I strongly recommend entering into a fee agreement with the applicant’s attorney to protect all parties consistent with State Bar rules. In addition, depending on the nature of the credit and the timing of the credit, the personal injury settlement will simply result in shifting the burden of TTD and medical from the comp carrier to the injured worker. There is a bit of a balancing act here. In some cases, the early personal injury settlement does little good for the injured worker/plaintiff since they have to then pay for their own disability and medical until the credit is exhausted. In other cases, if the personal injury settlement is later, the workers’ compensation lien can wipe out the personal injury case. This is especially a concern if the limits are low. There is an opportunity for customizing deals to avoid this type of result or to minimize this result. There can be a global settlement of both the personal injury and the workers’ compensation case together by way of a third-party compromise and release. As part of the lien negotiations, stipulations can be obtained to delay the impact of the credit or to restrict the credit to permanent disability only. There are many creative ways to deal with these issues. The take-away is that if you are not able to handle both the personal injury and workers’ compensation case yourself, you must coordinate with the workers’ compensation attorney to deal with these issues. Jonathan Brand has been representing clients in connection with personal injury and workers’ compensation law since 1989. The Walnut Creek firm has a special interest in cases that involve both personal injury and workers’ compensation arising out of the same event. www.jb-law.com

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Hon. James A. Steele

Los Angeles County Superior Court

“Objection, 352!” shouted Juror #8 The importance of keeping your case presentation simple and “on theme” We were well underway in a complicated, multi-party business litigation trial when, during a witness examination, Juror #8, a non-lawyer, suddenly shouted out “Objection – 352!” I silently wondered if everyone in the courtroom could hear my inner voice cry out “Sustained, and thank goodness you asked!” I resisted the temptation and instead smiled, thanked the jurors collectively for their attention and enthusiasm and reminded them it was the lawyers who were responsible for making objections. In my 35+ years since first being admitted to the Bar, including my years in corporate and private law practice, I had never before even heard of a juror making an evidentiary objection. Irrespective of whether or not Juror #8’s objection was correct or appropriate, she was telling all of us: “What’s this got to do with what I thought this case was supposed to be about?” In that question lies a critically valuable lesson for all of us who have made a career of trying cases: the importance of developing a coherent theme of the case before it is tried.

Simplicity and theme

Firstly and most importantly, it should never be forgotten how critically important the trial lawyer’s role is in achieving the desired result on behalf of the client. A trial attorney can have a profound impact, good or bad, on a trial’s outcome. The greatest contribution to be made by the lawyer is in finding a way to simplify the case to the greatest possible degree so the case theme might be presented in a coherent and succinct fashion. I became absolutely convinced of the importance of simplicity and theme more than 20 years ago while attending a trial skills seminar in New Mexico led by the Honorable Herbert J. Stern, a retired 104 — The Advocate Magazine

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federal District Court Judge from New Jersey. Judge Stern was not only a dynamic speaker with a particularly notable and impressive professional career, he understood and was able to effectively communicate to practitioners, the importance of developing and communicating a theme at trial. I still often reflect on what a profound effect Judge Stern had on my perspective on trying cases. Since Judge Stern no longer conducts such seminars, I recommend that every trial lawyer read his book, Trying Cases to Win (Wiley Law Publishers, © 1991). Judge Stern emphasizes the necessity of “stressing the simple” and avoiding what he labels “the buffet approach” to litigation. The buffet approach incorrectly assumes the client will be better off presenting everything available because the jurors may then just pick and choose what they need in order to arrive at the “correct” result. By contrast, the most effective case is typically the simplest case and the most effective trial lawyer is the one who can take an otherwise complicated case and simplify it. Juries, and I assure you judges for that matter, do not want to hear a lawyer start out by telling us how complicated the case is going to be. This is especially unappreciated when, as the case unfolds, it becomes apparent the case was made unnecessarily complicated. On the issue of the importance of developing the simplest possible theme of a case, Judge Stern, quoting E.M. Prince, one of Abraham Lincoln’s contemporaries and a man who had apparently witnessed the lawyer and future president try approximately 100 cases of all sorts during Lincoln’s 23 year legal career, stated: Mr. Lincoln had a genius of seeing the real point in a case at once, and

aiming steadily at it from the beginning to the end. The issue in most cases lies in a very narrow compass, and the really great lawyer disregards everything not directly tending to that issue. Mr. Lincoln saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. [See Herbert J. Stern, Trying Cases to Win, p. 79, Wiley Law Publications (1991), citing L. Stryker, The Art of Advocacy 178 (1954)] There is no single way of determining the “kernel” of the case. It is nevertheless imperative to develop and articulate one early on, and to present the case and evidence as consistently as possible with that theme. Once established, the theme must then be carried through in voir dire, in opening statement, in all witness examinations, and, of course, in closing argument. At closing, you should be prepared to fully deliver on the theme you promised at the outset of the trial. Most of all, avoid creating your own distractions and diversions from the theme no matter how seductive additional tidbits of marginally relevant evidence might appear. If you find yourself repeatedly defending 352 objections, especially ones given serious consideration by the court or even worse, being suggested by the court on its own motion (see Super. Ct. L.A. County, Local Rules, rule 3.135), consider this as a possible blessing in disguise forcing you to get back on track.

Presenting evidence

Despite what I would hope would be almost every trial lawyer’s innate sense of the importance of simplicity and theme, there are many factors militating against this and it is easy to fall prey to those influences. For example, clients, who typically have extensive personal knowledge


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of the underlying facts, may criticize their lawyer if any detail, no matter how slight, is not included in the trial. While Evidence Code section 351 provides that all relevant evidence is admissible, neither the rules of evidence, nor a client’s insistence that every detail in support of his or her case be included, nor a judge’s general preference towards inclusion, nor certainly common sense, require that admission should necessarily be sought as to all possibly relevant, supporting evidence. Good trial lawyers have mastered the art of differentiating, from the panoply of relevant evidence available to them, which items they should seek to include and which items to exclude, or at least minimize, in their trial presentations. Judges may also necessarily become enablers for those who wish to include marginally relevant evidence at trial. While there are notable exceptions such as those pertaining to recognized privileges or doctrines requiring exclusion, or matters which, if admitted, would be so highly prejudicial that doing so would deny a party a fair trial, judges will almost always prefer to include, rather than exclude, even minimally relevant evidence. A judge’s purpose is to ensure each side is afforded every reasonable opportunity to fairly present its case and if a party chooses to weaken its own case, and hence that party’s likelihood of success, that is not our concern. Of course contradictory evidence cannot be ignored in this process as the necessity of moving potentially harmful evidence from the “harmful column,” over to the “helpful” or at least the “neutral column,” cannot be over emphasized. Since a worthy opponent will seize on contradictory evidence, you must be prepared to frame that evidence in a manner as consistently as possible with your established theme. Alternatively, consider what Judge Stern refers to as the practice of “giving away what you cannot win.” For example, if liability is so evident that to deny it would result in your suffering a loss of credibility with the trier of fact, focus instead on limiting the damages to something reasonable.

Otherwise, when the inevitable finding of liability is made, having continued to argue against liability, you will not be deemed a credible source for the amount of damages to be awarded. As a trial lawyer you can have a profound impact on the outcome of a case since you are the person singularly responsible for identifying, developing, executing on and communicating the theme of the case. These elements should be abundantly obvious at every stage of the trial, and most importantly, during closing when you deliver on your promised theme. On a purely selfish note, keep in mind that these principles are no less important in bench trials

than they are in those tried before juries. Judge James A. Steele was appointed to the Los Angeles Superior Court in March 2007 after 29 years in corporate and private practice. His current assignment is comprised of both Unlimited Civil and Probate matters and he is to join the Central District’s Probate Department shortly. He has presided over bench and jury trials in the areas of personal injury, medical malpractice, wrongful death, real estate, business and breach of contract actions, among others. In addition to his law degree, Judge Steele has an undergraduate degree in economics, a Master’s in Business Administration and he has completed a postgraduate program in taxation as well.

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Hon. Huey P. Cotton

Los Angeles Superior Court

Cultural competence in changing times How cultural differences can affect judicial outcomes Is this scene typical of the cultural conflicts in store for the Los Angeles Superior Court as we adjust to the new court consolidation plan? Will judges and litigators encounter more cultural diversity as litigants from Torrance end up trying cases in Van Nuys, litigants from East L.A. try their cases in Santa Monica, or litigants from Glendale try their cases in Long Beach? Given the rich heritage of ethnic neighborhoods in Los Angeles County, the answer to these questions is probably, yes. The likelihood of increased cultural conflict presents an opportunity for the judges, lawyers and litigants in our courts. We have an opportunity to heighten our awareness of how cultural differences might affect litigation outcomes. With heightened cultural awareness, we should be better able to minimize negative reactions to cultural differences (such as Judge Haller’s reaction in the movie), and maximize our development of cultural competence. New York attorney Vinny Gambini, speaking with a strong Brooklyn accent in an Alabama courtroom, questions a witness: “Is it possible the two youths…?” Judge Chamberlain Haller: “Two what? What was that word?” Gambini: “What word?” Judge: “Two what?” Gambini: “What?” Judge: “Did you say ‘Yoots?” Gambini: “Yeah, two youths.” Judge: “What is a Yoot?” [Gambini couldn’t understand why the word “youth” was so perplexing to the judge.] [The judge, with fully wrinkled brow, stared at Gambini trying to understand the language Gambini was speaking in this Alabama courtroom.] Excerpt from the motion picture “My Cousin Vinny” (1992 – Twentieth Century Fox). 106 — The Advocate Magazine

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Where to draw the line The challenge to become more culturally competent pre-existed the court’s consolidation plan. Indeed, this challenge has been with us for decades. Our neighborhood courts experienced the gradual cultural transition of most communities in Los Angeles. For example, we are all aware of the increase in immigrant/migrant populations into Los Angeles over the past 30 years from places such as New York, Mississippi, China, Armenia, Mexico, Iran, Jamaica, and Ireland, to name just a few. As these new population groups settled into various neighborhoods, cultural differences became more pronounced. The 2013 court consolidation plan merely sharpens the conflict by instantly introducing new and different culturally rich communities to courts that had become accustomed to the cultural and ethnic mix of the gradually transitioning neighborhoods in which the courts were situated. This new cultural challenge also presents in the same year that courts statewide must begin complying with a change in the California Code of Judicial Ethics. Prior to January 1, 2013, Judicial Canon 3 read: “A judge shall perform the duties of judicial office impartially and diligently.” Now, it reads as follows: “A judge shall perform the duties of judicial office impartially, competently and diligently.” The addition of the word “competently” to this canon of ethics could, and perhaps should, be read to mean that we are ethically required to increase our cultural awareness in order to competently respond to cultural differences. Coupled with Judicial Canon 3(b)(6) which states in relevant part: “A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, gender, religion, national

origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation against parties, witnesses, counsel, or others.” Importantly, this canon does not preclude legitimate advocacy when race, sex and the other stated cultural factors are issues in the proceedings. The new obligation to increase competence extends to increasing our awareness of when these cultural factors are legitimate issues in the proceedings. We must competently decide where to draw the line. This ethical mandate should lead to changes in continuing legal education for judges and lawyers alike. Some would argue that anti-bias CLE courses already address the issue of cultural conflict. This is partially true. Anti-bias education helps us learn to be sensitive to stereotypes and avoid acting negatively based upon reliance upon stereotypes. But, requiring cultural competence suggests an even greater obligation. It suggests that we must not only understand and avoid negative action based upon stereotypical views of others, we must understand cultural differences and how they influence the litigation process. A few examples may help illustrate this point.

African Americans

An anti-bias CLE might help you understand that you may harbor negative views about certain racial groups, such as African Americans. You might learn to be sensitive to those negative views and eventually eliminate them. This result would be a great outcome of an anti-bias CLE. But, you may have learned nothing about how African-American cultural nuances might otherwise legitimately influence a litigation outcome. For example, a cultural competence CLE might show you that African Americans (some, not all) tend to be more suspicious of law enforcement and the justice system.


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Understanding this cultural nuance, your approach to mediation conferences that leave African American litigants waiting alone for extended periods of time, while lawyers and judges negotiate a “compromised” settlement might change and become more client-inclusive to avoid resistance/suspicion about the “compromised” settlement from the litigant.

Sexist stereotypes

Another example: Anti-bias CLE might teach you to be sensitive to any sexist stereotypes you might harbor about women, such as assuming that women litigants in an employment dispute are not entitled to the same presumptions about their earning capacity as men. Correcting this thinking would be an excellent outcome for an anti-bias CLE. But, as Mark Ameli, Esquire of Diversified Dispute Resolution points out in a CLE on cultural competence, a woman litigant from a group (high-context) culture, such as many Middle Eastern cultures, might have cultural expectations about how to approach the litigation process that differ radically from a woman from a more individualistic (low-context) culture, such as

American culture. Faced with the potential for settling an employment dispute, the woman from the group culture might, for example, require input from elders, or spouse and children who are not present for the settlement before making a settlement decision. A judge or lawyer (or private mediator for that matter) might miss an opportunity to resolve the case if they are unaware of these cultural differences and mistake them for resistance to a proposal for how best to advance/resolve litigation.

Regional differences

Another affirmative example of cultural competence was presented in the movie “My Cousin Vinny.” The attorney, Vinny Gambini gained cultural awareness

about how long it takes a southerner to properly prepare grits. He then used that enhanced cultural awareness to assist in his successful defense of two young men wrongfully accused of murder. He was easily able to convince the Alabama jury that no self-respecting Southerner would claim to prepare grits in five minutes. Judge Haller was culturally competent to handle the reference to grits and elected to not interject a question about the reference. The point here is that we must now look for the opportunities created by the 2013 Court Consolidation Plan. Since systems and processes are changing, we should seize the moment and change our level of competence in handling cultural differences that present in the litigation context.

Judge Huey P. Cotton of the Los Angeles Superior Court, Northwest District – Van Nuys, presides in a general (unlimited) jurisdiction civil court. He was appointed to the bench in 2009 by Governor Arnold Schwarzenegger. Judge Cotton practiced law for 27 years prior to taking the bench. He started his legal career as a staff attorney with the United States Civil Rights Commission in Washington, D.C. and later served as a senior trial attorney for the Defenders Association of Philadelphia and later joined the national law firm of Cozen O’Connor in Philadelphia. While practicing law in Philadelphia, he helped initiate a comprehensive study of cultural conflict and bias in the courts. He also organized the first comprehensive CLE for judges on judicial ethics in Philadelphia. In addition to his regular duties on the Superior Court, Judge Cotton serves as a mentor for high school and college students interested in pursuing legal careers. AUGUST 2013

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Chris Denove

Quantifying the juror bias against corporate defendants An Advocate exclusive – A research study on how bias can impact the value of a case I recently spoke at a conference where I asked the group to list off all the relevant facts they would want to know in order to estimate the value of a case. We gave them just the basics; your client is a 40-year-old man who suffered a displaced fracture of the right arm when he tripped on a piece of carpet that had lifted from the ground. Liability was admitted, so the jury’s only task will be to determine the value of your client’s damages. After about five minutes, the group had provided a long list of items. Many were the usual suspects: What are the medical expenses, what does your client

do for a living and is there a loss of earnings claim? Others were more creative, but potentially just as important.

Nature of the defendant

I found it interesting, however, that no one asked about the nature of the defendant; specifically, are we suing a homeowner or a business? So I asked the group how important the nature of the defendant was in determining damages of an admitted liability case. The consensus answer was that since liability was admitted, the nature of the defendant was primarily relevant with respect to the

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defendant’s ability to pay the claim, and not the value of our client’s damages. This generally-held belief led to the research project discussed below. Specifically, we wanted to know whether jurors would modify their damage award based solely on the nature of the defendant, and if so we wanted to statistically quantify the difference in dollars. One way to do this would be to review all of the available slip-and-fall verdicts involving broken arms to see whether cases against businesses generated higher verdicts. This quickly proved unacceptable, however, because every case is different and it would be impossible to know whether the differences in the verdicts were due to the nature of the defendant, or the myriad of unique differences within each case.

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We therefore decided that the only way to accurately measure this impact once and for all would be to conduct a series of mock trials that were identical in every way except for the nature of the defendant. That way we would know that any difference between the verdicts exclusively reflected the subconscious bias created by the nature of the defendant. We ran a total of three mock trials. Each trial was conducted online because the lower cost per juror allowed for large enough sample sizes to be statistically reliable. In all three cases the plaintiff (and his injuries) were identical: • 40-year-old married man • Two surgeries (injury resolved except permanent loss of range of motion and minor pain with activity) • No loss of earnings • Primary long-term impact on recreation (no longer able to play serious competitive softball – but still able to play recreational softball, and pain when playing golf) The defendant, however, was described differently in each mock trial:


case

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• Mock Trial #1 (Homeowner hosting a Super Bowl party) • Mock Trial #2 (Local hardware store) • Mock Trial #3 (Nationally branded home improvement chain) Jurors were told that the medical expenses had already been paid, so their verdict should be limited to calculating the plaintiff ’s pain and suffering. We didn’t want to unduly bias the jury regarding the nature of the defendant so we didn’t suggest the duty of a national retailer, or attempt to elicit empathy when the defendant was a homeowner. Instead, we only mentioned the defendant once at the beginning of the case, and from that point forward focused all evidence on the plaintiff and his injuries. The results, which are summarized below, yielded numerous surprises. The first of which was the sheer size of the

difference between the awards with the national retailer being hit with a damage award five times larger than that for the homeowner. The second surprise was how the jury modified their verdict between when the defendant was a local versus national retailer. While we weren’t surprised to see at least some difference between a private homeowner and a business, the fact that the jury awarded 42 percent more for a large versus small business was quite unexpected. As large as the differences in the verdicts were, we question whether the gaps might be even larger in a real trial. After all, in a real trial the biases may be greater where the defendant’s nature is out front for all to see; the team of attorneys from the faceless corporation scurrying about, or in the opposite scenario the

jury will see poor Mr. and Mrs. Johnson sitting helpless at the defendant’s table. The one undeniable fact that comes from this research is that regardless of which bar you sit (plaintiff or defense), the subconscious biases associated with nature of the defendant can be one of the most critical elements in evaluating (or miscalculating) the value of a case. Chris Denove is an attorney who formerly practiced at Cheong, Denove, Rowell, Bennett & Karns. He 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. He currently serves as president of Camarillo-based Trial Survey Group, an organization that provides mock trials and opinion research for attorneys and may be reached at chris.denove@gmail.com, or www.trialsurveys.com.

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Gary Eto

Don’t inadvertently waive your right to a jury trial Streamlined civil system makes it imperative that you timely request a jury It is now very easy to waive the right to a jury trial in any personal-injury case filed in the newly reorganized Los Angeles Superior Court, or in any other courts that follow a similar system, where the case is set for trial upon being filed. Section 631 of the Code of Civil Procedure deals with jury waivers. It says: (f) A party waives trial by jury in any of the following ways: ... (4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. (Emphasis added.) As we all know, in Los Angeles County, effective March 18, 2013, all personal-injury cases must be filed in the Central District, in downtown Los Angeles. In these actions, the court has done away with the Case Management Conference, and sets the case for trial on the day the case is filed. The result is that plaintiff ’s counsel has five days from the date the complaint is filed to demand a jury. Although it is unlikely that this result was intended when the reorganization was contemplated, the result is that it is now very easy for lawyers to inadvertently waive a jury.

How to fix it

If this has happened to you, file and serve your demand for a jury immediately. Consider contacting opposing counsel and request a stipulation. Most defense counsel will agree, especially if they missed the five day cut-off as well. (Read literally, the Code suggests that the demand must be made within five days after they were served, not when they file their initial responsive pleading, which is 110 — The Advocate Magazine

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usually 30 days after service.) If counsel refuses to stipulate, you should immediately file a motion for relief. The following authorities may help. Tesoro Del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 explains that even where a party has waived the right to a jury trial, the courts retain the discretion to relieve the party of that waiver: Nonetheless, in the event of a waiver, the trial court retains discretion to allow a trial by jury. (Code Civ. Proc., § 631, subd. (e); Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810; Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703-1704 In exercising such discretion, courts are mindful of the requirement “to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant’s right to jury trial. [Citations.]” (Grafton Partners v. Superior Court, supra, at p. 956.) Accordingly, “[w]here the right to

jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citation.] A trial court abuses its discretion as a matter of law when ‘... relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver.’ [Citations.]’ [Citations.]” (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104)” Relief should be sought immediately to avoid any prejudice to the opposition. In Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654, the court noted that the plaintiff “had taken immediate action” once he realized his waiver, and directed the trial court to have the case tried before a jury. (See, also, Massie v. AAR Western Airways, Inc (1992) 4 Cal.App.4th 405, 412 “…counsel acted promptly to post fees and seek relief from the jury waiver.”) If you have not done so already, make it a practice when filing a personalinjury case to demand your jury in your original complaint, in order to avoid an inadvertent waiver. Gary C. Eto is a trial lawyer in Torrance, California, who handles cases involving catastrophic personal injuries, product liability actions with an emphasis on defective vehicles and tires, and wrongful death actions. He earned both his undergraduate and law degrees from UCLA. He has tried multiple civil and criminal cases to verdict, is a member of CAALA, the Attorneys Information Exchange Group; a lifetime member of: the John Langston Bar Association, Japanese American Bar Association, Pilipino American Bar Association; and a founding member of the Thai American Bar Association.


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About this Issue Jeffrey Isaac Ehrlich Editor-in-Chief

Appellate reports and cases in brief Recent cases of interest to members of the plaintiffs’ bar Insurance; med pay; impact of release; collateral estoppel; equitable estoppel: Barnes v. Western Heritage Ins. Co. (2013) __ Cal.App.4th __ (3d Dist.) Justin Barnes was injured when a table fell on his back while he was attending a day camp sponsored by Western Heritage’s insured (“Activities Council”). Western Heritage paid $1,478 under the med-pay coverage in its CGL policy. Barnes sued the Activities Council and others in a personal-injury claim, which eventually settled. He later made additional claims on the med-pay coverage, which Western Heritage denied. He sued Western Heritage for breach of contract and bad faith. The trial court granted summary judgment for Western Heritage, finding that he was collaterally estopped to assert the claim after settling

his personal-injury claim; and that Western Heritage was not estopped to rely on the statute of limitations in its policy, even though it had not advised Barnes of the time limit when it first paid the med-pay claim. Reversed. Collateral estoppel does not bar the claim against the med-pay coverage because the issues raised in the case against Western Heritage based on its denial of med-pay coverage were not the same issues that were litigated and necessarily determined in Barnes’s personal-injury action. Western Heritage’s medpay coverage obligations under its policy were not at issue in the prior lawsuit and were not litigated. There was no impermissible double recovery because the duties owed by Western Heritage under its policy were different than its obliga-

tions to the Activity Council to defend or indemnify. The court disagreed with Jones v. California Casualty Indem Exch. (1970) 13 Cal.App.3d Supp.1, which held that a prior settlement of a personal-injury suit would extinguish a medpay obligation. And the court held that Western Heritage failed to notify Barnes of all the deadlines for seeking med-pay benefits as required by 10 Cal.Code Regs. § 2695.4(a), which created triable issues of fact about whether it was estopped to assert the one-year deadline for med-pay benefits contained in its policy. Wrongful death; putative spouse: Ceja v. Rudolph & Slayton, Inc. (2013) __ Cal.4th __ (Cal. Supreme). California law allows a decedent’s

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“putative spouse” to pursue a wrongful death claim. Section 377.60(b) of the Code of Civil Procedure defines a putative spouse as “the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.” The plaintiff here, Nancy Ceja, was married to the decedent, Robert Ceja, before his divorce was final, and signed documents that would seem to suggest that she was aware of the problem. But she maintained that she always believed that her marriage to Robert was valid. The issue resolved by the Supreme Court was whether the “good faith” inquiry contained within the definition of “putative spouse” is determined under a purely subjective inquiry, focusing on what the putative spouse believed in good faith – or whether the definition also contains an objective component that requires that the putative spouse’s belief be objectively reasonable. In a unanimous opinion, the Court held that the inquiry was “purely subjective and evaluates the state of mind of the alleged putative spouse, and that the reasonableness of the claimed belief is properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.” Since the trial court had granted summary judgment against Nancy on the theory that her belief had to be objectively reasonable, the summary judgment was reversed.

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Class actions; coupon settlements; calculation of attorney’s fees: In re HP Inkjet Printer Litigation (2013) __ F.3d __ (9th Cir.) The district court approved the settlement of a class action alleging that HP engaged in unfair business practices concerning its inkjet printers’ use of ink cartridges. The settlement provided both coupon and injunctive relief. The district court awarded class counsel fees of $1.5 million, and costs of $595,990. Objectors to the settlement appealed. Reversed. Under the Class-Action Fairness Act, 28 U.S.C. § 1712(e) (“CAFA”), attorney’s fees for class counsel may not be calculated AUGUST 2013

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Appellate — continued

under the lodestar method in cases based solely upon coupon relief. In cases subject to the restrictions in CAFA concerning coupon settlements, a district court must perform two separate calculations to fully compensate class counsel. First, it must determine a reasonable contingency fee based on the actual redemption value of the coupons awarded. Second, under subsection (b), the court must determine a reasonable lodestar amount to compensate class counsel for any non-coupon relief obtained. This lodestar amount can be further adjusted upwards or downwards using an appropriate multiplier. In the end, the total amount of fees awarded

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under subsection (c) will be the sum of the amounts calculated under subsections (a) and (b). Judicial admissions; boilerplate agency allegations in complaints: Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446 (2d Dist., Div. 1) The purchaser of real property sued her sellers and its affiliates for fraud and other claims relating to the transaction. A month later she added her attorneys in the transaction, Kessler & Kessler (“KK”), on several theories. KK later moved to compel arbitration, which the trial court denied the motion under the Code of Civil Procedure section 1281.2, subd. (c),

which allows trial courts to deny arbitration when a party to the arbitration agreement is also a party to a pending lawsuit arising out of the same transaction, and there is a possibility of conflicting rulings. KK appealed, and the Court of Appeal affirmed. KK argued that application of section 1281.2,subd. (c) was error because there were no true “third parties.” Rather, the plaintiff had pleaded in her typical boilerplate agency allegations that all defendants were the agents of each other, and therefore all were subject to KK’s argument. The court rejected this contention. Judicial admissions may be made in a pleading, by stipulation during trial, or


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by response to request for admission. Facts established by pleadings as judicial admissions are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted, by the party whose pleadings are used against him or her. But “not every factual allegation in a complaint automatically constitutes a judicial admission. Otherwise, a plaintiff would conclusively establish the facts of the case by merely alleging them, and there would never be any disputed facts to be tried.” Rather, a judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party. The factual allegation is removed from the issues in the litigation because the parties agree as to its truth. Thus, facts to which adverse parties stipulate are judicially admitted, as are a party’s responses to requests for admissions in discovery. Likewise, answers that admit factual allegations in a complaint or cross-complaint are judicial admissions. But KK disputed the agency allegations in the plaintiff ’s complaint. Those allegations therefore could not be treated as judicial admissions about the status of the defendants. Hospital Lien Act; burden on hospital to enforce lien; failure to show hospital’s charges were reasonable: State Farm Mutual Automobile Ins. Co. v. Huff (2013) _Cal.App.4th _ (4th Dist., Div. 1.) Huff was injured in an auto accident, and received treatment at Pioneer Memorial Hospital. At the time of his discharge, he owed the hospital $34,320. Huff sued the other driver involved in the auto accident, and recovered a judgment in excess of $350,000, which included past medical expenses of $232,708. After judgment was entered, Pioneer asserted its right to payment of its claimed lien under the Hospital Lien Act. Huff demanded that the judgmentdebtor’s insurer, State Farm, pay him the entire judgment. State Farm interpleaded the amount of the judgment. In a bench trial, the district put on a case that showed that Huff had received treatment shown on the bill (which was admitted in AUGUST 2013

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Appellate — continued

evidence) at the hospital’s standard rates; that Huff did not have any health insurance; and that at the underlying trial, Huff ’s lawyer relied on the bill to recover past medical expenses. The trial court held that the hospital had met its burden to establish a valid and enforceable claim to enforce its lien under the Hospital Lien Act. The court specifically held that the Hospital was not required to provide expert testimony to show that the charges it seeks to recover were reasonable and necessary. Reversed. The Hospital Lien Act, Civil Code section 3045.1, states that a hospital that provides emergency and ongoing care to a patient who was injured by reason of the negligent or wrongful act of a third party, shall have a lien against the patient’s recovery against that third party, “to the extent of the amount of the reasonable and necessary charges of the hospital.” Given this requirement, it was incumbent on the Hospital to prove both the amount of its charges – which it did; and that the charges were “reasonable and necessary.” Since it failed to do that, the award in its favor could not stand. Since the Hospital had a full and fair opportunity at trial to prove its claim, but

failed to do so, the case was remanded for entry of judgment in favor of Huff, who was entitled to the entire proceeds. Cumis counsel; independent counsel; Civil Code section 2860; disqualification of counsel; conflict of interest: Schaefer v. Elder (2013) __ Cal.App.4th __ (3d Dist.) Schaefer hired Elder to design and build a house. Schaefer later sued Elder, alleging claims for breach of contract, negligence, etc. Elder tendered the defense to his insurer, CastlePoint National Ins. Co., which appointed panel counsel to defend Elder, subject to a reservation of rights. CastlePoint also filed a declaratory relief action seeking to establish that there was no coverage for Elder’s claims. Elder’s policy with CastlePoint included a “contractor’s special condition” which excluded coverage for work performed by independent contractors unless Elder had first obtained indemnity agreements and a certificate of insurance from them. Schafer’s complaint stated that the work had been done by Elder and his employees. But panel counsel’s answers to interrogatories stated that work was done primarily by

subcontractors. Elder moved to disqualify panel counsel and to have independent counsel appointed. The trial court granted the motion. Affirmed. Where there are divergent interests between the insurer and its insured, the insured is entitled to independent counsel under case authority and Civil Code section 2860. Here, it was in Elder’s interest to argue that the work at issue was performed by his employees; and it was in CastlePoint’s interest to argue that the work was done by independent contractors, to support its coverage position. As part of Elder’s case, he will have to show that the party performing the work had some connection to Elder, in a business sense. This implicates the conflict of interest between the parties, and entitled Elder to independent counsel. Because panel counsel had a conflict and was simultaneously representing both conflicted parties, the proper course was to disqualify that firm. Primary assumption of risk; sports training; weight lifting: Cann v. Stefanec (2013) __ Cal.App.4th __ (2d Dist. Div. 5.) Cann and Stefanec were members of the UCLA women’s swim team in 2010.

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JA Jonnell Agnew & Associates During a mandatory workout in the weight room, Stefanec dropped a weight behind her, which either struck or rolled into Cann’s head as she did pushups behind Stefanec. Cann sued Stefanec. The trial court granted Stefanec’s motion for summary judgment based on the doctrine of primary assumption of the risk. Affirmed. The fact that Cann was not lifting weights at the moment that she was struck by the weight that Stefanec dropped did not defeat the operation of the assumption-of-the-risk doctrine. They were both co-participants in the same training session for the swim team. And primary assumption of the risk does not require that both parties be doing the identical activity. Duties regarding the same risk may differ depending on the role played by a particular defendant. In a sporting context, a defendant could be a co-participant, an observer, a coach, or an owner of a venue, for example. The court can determine that weight lifting involves an inherent risk of injury to persons in the vicinity of lifters who drop weights because of a loss of balance, injury during a lift, or other reasons. Stefanec’s action of dropping the weight after she lost her balance was not outside the range of ordinary activity for the sport. Nor was the conduct reckless, in light of her coach’s instruction to the team that they should drop the weight if they lost their balance. 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 Advocate magazine and a contributing author of the Rutter Group’s Insurance Litigation practice guide.

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XECUTOR orneys Los

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From the Executive Director Stuart Zanville

Consumer Attorneys Association of Los Angeles

CAALA From VEGAS the

Proof thatExecutive everyone can work together to keep the courts functioning Director Stuart Zanville The annual CAALA Las Vegas A prominent defense attorney once CAALA in many ways. Convention is remarkable told me that while plaintiff and defense From the quality of the programs, the lawyers fight like cats and dogs in the courtroom, building good relationships sheer size of the turnout or the flawless away from court is critical to both sides. way that it’s organized, CAALA Vegas is That’s what previous CAALA presidents different from any other legal convention. like Steve Glickman and Amy Solomon But, there’s something else that makes it had in mind when they began pushing to special. No legal convention anywhere include jurists and defense attorneys on brings together as many judges, defense the CAALA Vegas education panels. attorneys and plaintiff lawyers. Stuarttrial Zanville The L.A. Superior Courts, the state’s This year’s CAALA CAALA Vegas is no exception. Many of the 2,000 attendees largest court system, have been rocked with are judges or members of the defense unprecedented budget cuts that have left bar. More than 20 current LASC judges them a shadow of what they once were. are speaking on education panels along Over the past five years, more than $1 bilwith some of the country’s most promilion in state budget cuts have impacted nent defense attorneys. Of course, they thousands of L.A. Court employees and join the nation’s most preeminent assemmore than 1,400 have lost their jobs. At blage of plaintiff attorneys. the same time, a record number of people Zanville when Many people Stuart are incredulous line up to use the Court system. Attorneysdefense Association of Los Angeles they’re told that soConsumer many judges, Challenges to the system lawyers and trial lawyers spend four days Now more than ever, judges and together at CAALA Vegas. They think it’s lawyers must work together to ensure like mixing oil and water and a match. that the system continues to function. Actually, it’s just the opposite. Readers of this column know that Civility at work CAALA is partial to judges. CAALA CAALA Vegas is undeniable proof that members and other members of the conthere can be civilityBy within the justice syssumer trial bar have done everything Stuart Zanville tem. It answers affirmatively once and for possible Consumer Attorneys Association of Los Angeles to stand up for the Courts in all the question “Can We All Get Along?” these trying times. The challenges faced by the Courts affect every attorney and the clients they represent. While we understand the adversarial relationship between defense and plaintiff attorneys, we look at the defense bar as opponents, not enemies. When it comes to the issues facing the Courts, the defense and plaintiff bars are on the same team. Work is being done in Sacramento to convince legislators to restore the budget cuts, but judges and lawyers need to work together in Los Angeles to make sure the system continues to function. CAALA and the Association of Southern California Defense Counsel have long had a good working relation-

From the Executive Director

From the Executive Director

118 — The Advocate Magazine

AUGUST 2013

ship. Leaders of both trial bars serve on joint committees and meet regularly to address and help implement the changes in the L.A. civil courts. When the Hon. Daniel Buckley, supervising judge of the L.A. civil courts, announced the initial plans for the Court Consolidation, it was presented to a joint seminar presented by CAALA and ASCDC. More than 400 lawyers and judges were in the audience.

Cooperation is essential

It is also important for judges and lawyers to get along with each other. More than 40 years ago, the late plaintiffs’ attorney and CAALA Hall of Fame member Raoul Magana wrote that “Invective, bitterness, a denigration of the position of the advocate has no place in a courtroom. Our profession has received its share of adverse publicity from all quarters, much of it probably deserved, but without recognition of the basic efforts that guide lawyers.” Magana added that “respect and good manners are indispensable virtues of a trial lawyer. Denigrate no one. Present the facts and let the trier of the facts make the determination.” In the July 2012 issue of CAALA’s Advocate magazine, L.A. Superior Court Judge John Segal wrote, “The best trial lawyers I have been fortunate to see in action are forceful, persistent, tenacious, even a little confrontational when the stakes are high, but never mean. I think they know it’s not in their best interest or the best interest of their clients to practice law that way. It may be that they know that treating litigants and lawyers respectfully, professionally and even nicely, pays off in the long run.” Judges and lawyers from both sides getting along and working together to preserve the civil courts is not just a good idea; it is essential to the very survival of the system as we know it.


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From the President Scott Cooper

Orange County Trial Lawyers Association

Twoscore and Ten Years Ago. . . What lawyers can learn from historic arguments It’s amazing how much can happen in a year. As I’ve mentioned in prior articles, OCTLA’s 50th Anniversary has caused me to look back on what was happening in 1963. That was a tumultuous time in our nation’s history. During that year, our involvement in Vietnam expanded, the U.S. and USSR. entered into the nuclear test ban treaty, and in November, President Kennedy was assassinated. Some of the most dominant stories of 1963, however, come from the civil rights movement. Probably the most wellknown civil rights event that year was the March on Washington in August (50 years ago this month), at which Martin Luther King, Jr. gave his “I Have a Dream” speech. There were, however, many other pivotal moments leading up to the March, including: • May 2, 1963: over 1,000 high school students in Birmingham, Alabama engaged in an organized march to downtown Birmingham. Over four days, hundreds of the students were arrested, released, and rejoined the march. The local police ultimately tried to stop the march forcefully by turning fire hoses and police dogs on the students. Newspaper and TV Images of the students being blasted by the hoses and attacked by the dogs generated worldwide outrage. • June 11: Alabama Governor George W. Wallace, defying a federal court order, stood in the schoolhouse door at the University of Alabama in a symbolic (and media friendly) effort to block the entry of two black students. After giving a speech for the cameras, he was ultimately ordered to step aside by a U.S. Deputy Attorney General and the Alabama National Guard, which had been federalized by President Kennedy. • That same night, President Kennedy addressed the nation on the issue of civil

rights, condemning segregation and announcing his support for sweeping civil right legislation. • June 12: Medger Evers, an NAACP official who had fought against segregation in Mississippi schools, was killed outside his home. Byron De La Beckwith was arrested for the murder, but two mistrials followed in 1964 when the all-white juries deadlocked. (De La Beckwith was retried 30 years later and convicted.) • On June 19: President Kennedy sent Congress the first version of what would eventually become the Civil Rights Act of 1964. All of this culminated in the March on Washington and Dr. King’s iconic speech on August 28, 1963. As lawyers in the persuasion business, we should periodically go back and watch or read the full speech because it is a rhetorical masterpiece from which much can be learned. Of course, the speech is best remembered for its most oft-quoted passage, in which Dr. King repeatedly invokes his dream of racial equality and harmony in America. Here, he famously uses “anaphora” – the rhetorical device of repeating a sequence of words at the beginning of multiple phrases or sentences in order to add emphasis. Because we typically only hear this dream section of the speech, we tend to forget the rest of the speech, which is chock full of many other powerful rhetorical devices. He begins the speech with an allusion to the first line in Lincoln’s Gettysburg address: “Five score years ago, a great American, in whose symbolic shadow we stand today, signed the

Emancipation Proclamation.” Not only was the Emancipation Proclamation signed 100 years before, but the Gettysburg Address to which Dr. King alludes was delivered that same year, in 1863. He also alludes to Shakespeare and the Bible. His generous use of metaphors is as pervasive as it is persuasive. He notes that, 100 years after the Emancipation Proclamation, “the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination” and that “the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity.” He declares that“[n]ow is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood” and speaks of being “able to hew out of the mountain of despair a stone of hope.” The speech, however, is still best known for the anaphora, repetition, or parallel phrasing he uses for effect. In addition to “I have a dream,” he powerfully repeats the phrases “with this faith,” “we can never be satisfied,” “let freedom ring,” and the closing crescendo in which he quotes from the negro spiritual: “Free at last! Free at last! Thank God Almighty, we are free at last!” To get the full effect of these poetic words, of course, you need to hear the speech. Its power comes not just from his expert delivery (including his impeccable cadence), but also from his heartfelt conviction and complete commitment to the cause. To experience the speech again, simply go to YouTube and search for “I Have a Dream.” You might be surprised just how much it can move you today, 50 years down the road.

AUGUST 2013

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Sacramento Update By Jacquie Serna CAOC Association Legislative Counsel

Recoiling over a public records assault Budget season has come and gone in Sacramento, but this year’s process proved yet again the power of Consumer Attorney of California members and the trial bar all over the state to mobilize against an attempt to thwart government transparency and accountability. Instead of the typical tort immunity fight, this year we faced a last minute attempt to sneak a key provision into the budget bill that would have eviscerated the California Public Records Act (“PRA”) by making compliance with its key provisions completely voluntary for local agencies. What we as attorneys and the public in general know to be a transparent and, in the best instances, relatively quick and painless process to seek and obtain public records would instead have turned into a painful exercise in procrastination and obfuscation. A door would have been opened for local officials to in essence say, “Sorry, we don’t have to get that document for you.” Thanks to your prompt responses, we were able to mount a coordinated attack on AB 76 before it was signed by the Governor. In just a couple of days, CAOC worked with key groups including the California Newspaper Publishers Assn., the American Civil Liberties Union and others to push public awareness of the bill. After much public pressure from CAOC and other groups, the Legislature and ultimately the Governor agreed to undo this grave misstep. The two houses of the Legislature quickly passed SB 71, which restored the PRA’s provisions. Meanwhile, Senate Democrats announced they would take up a constitutional amendment (SCA 3), which would protect the PRA in our Constitution by requiring cities, counties and other local government agencies to comply with the PRA and the Brown Act, which requires public notification in advance of meetings and places other restrictions on gatherings by elected leaders. In short: With prompt action and coordinated efforts, we are able to fight back and correct this action by the Legislature and we owe it all to you. The legislative process can be incredibly frustrating for even the most seasoned advocate. But the annual budget ritual, a Byzantine exercise if there ever was one, is far more unpredictable. Budget bills are often cloaked in secrecy and key policies are decided in private meetings between leadership and the

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Governor. The Legislature’s notorious “trailer bills” are often attached to the larger budget bill at the last minute, with little to no opportunity for public comment. This reality makes the attempts to undo AB 76 even more remarkable.

Washington Update By Linda Lipsen CEO, American Association for Justice

The accountability loophole: Let’s close it! The U.S. Supreme Court issued several decisions recently that broaden the accountability loopholes corporations use to keep Americans out of court. Below, I’d like to share the specific steps AAJ has taken to alert the public, Congress, and the media to the negative effects of two of those rulings. In Mutual Pharmaceutical v. Bartlett the Court largely shielded the generic drug industry from lawsuits for the design of their drugs. AAJ has issued a press release, held a press conference with national reporters, worked with Senator Leahy on a letter to the FDA, filed comments with the FDA in support of a Public Citizen citizen petition asking the FDA to address the generics accountability issue, and created an action alert on AAJ’s Take Justice Back site so people can e-mail members of Congress to fix this accountability loophole. Already, we are seeing results from our work with the media in numerous major publications. Please help us spread the word by sharing on Facebook, retweeting on Twitter, and signing our action item on Take Justice Back. AAJ took similar steps with the Supreme Court’s decision in American Express v. Italian Colors Restaurant, in which the Court decided that corporations can force small businesses and individuals into arbitration even when it can be proven that they will not be able to enforce their rights under federal law. AAJ issued a statement, held a press conference that resulted in numerous stories and a great editorial from the New York Times, and created an action item for you and your clients that has already generated over 900 letters to Congress. The results are in and our cosponsor list for the Arbitration Fairness Act continues to grow. Please take some time to spread the word about the importance of closing the accountability loophole for generic drug manufacturers and corporations that force American consumers and small businesses into arbitration.


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CAALA Connection Center New CAALA Members: We welcome the following new members who joined CAALA during the month of June Courtney Abrams

Heather Garcia

Peter Mueller

Marie Santos

Helmer & Friedman LLP

Ellis Law Corporation

Law Offices of Peter J. Mueller

Law Student

Orly Ahrony

Neil Gehlawat

John Murrin

Grant Savoy

Law Offices of Joseph Pourshalimy

Chain Cohn Stiles

Attorney at Law

Solouki & Savoy, LLP

Parag Amin

David Gharakhanian

Amir Nayebdadash

Krysta Sebastian

Law Office of Parag L. Amin

GP Law Group

Protection Law Group, LLP

The Cifarelli Law Firm

Natalie Bausch

Megan Gyongyos

Lily Nhan

Jacob Seropian

Law Offices of Natalie Bausch

The Cochran Firm

Killackey Law Offices, APC

Attorney at Law

Armine Bazikyan

John Habashy

Tom Nolin

Payam Shahian

Law Offices of Armine Bazikyan

Habashy Law Firm

Bergener & Associates

Strategic Legal Practices, APC

Angela Belty

Joseph Hough

Artak Oganesian

Ramtin Shahian

Lederer & Nojima LLP

Hough & Associates

Law Offices of Andrew Zeytuntsyan

Stategic Legal Practices

Brett Bergener

Kyung Hwang

Cynthia Palacios

Young Shin

Bergener & Associates

Hwang Law Firm

Trinity Law School

Attorney at Law

Jason Black

Andrew Jacobson

Sagar Parikh

Daljinder Singh

Law Offices of Jason Black

Engstrom Lipscomb & Lack

Law Offices of Vahedi & Parikh

Singh Singh & Trauben

Christopher Blaylock

Bryan Johnson

Eric Paris

Shoham Solouki

Law Offices of Joseph Pourshalimy

Evans & Johnson

Eric D. Paris & Associates

Solouki & Savoy, LLP

Valerie Bradbury

Christopher Kanne

Calvin Park

Brandon Sweeney

Sarkin Law Group

Attorney at Law

Law Offices of Calvin J. Park, APC

Sailer Law Firm, APC

Brandon Carroll

Louis Koory

Jazmine Peetz

Marla Tauscher

Fierstadt & Mans, LLP

Mission Law Center

Lavi & Ebrahimian, LLP

Law Office of Marla Tauscher

Timothy Clark

Dimitry Krol

Marcela Pena

Arlene Tecson

Engstrom, Lipscomb & Lack

Attorney at Law

The Kristy Law Firm

Attorney at Law

Rebecca Cucu

Armen Manasserian

Iris Perl

Lilit Tovmasyan

Donahue and Horrow, LLP

Milord & Associates, PC

Law Offices of Iris Kate Perl

JML Law, APC

Arun Dayalan

Jason Melendez

Bobby Pouya

Catherine Tran

Shawn Steel & Associates

Bergener & Associates

Pearson, Simon & Warshaw, LLP

Archer & Tran

Diana Diskin

Daniel Miller

Sergio Puche

Javier Trujillo

Law Offices of Gary A. Dordick

Wilshire Law Firm

Law Offices of Mauro Fiore, Jr.

Law Offices of Javier Trujillo

Jake Douglass

Jerry Milliken

Amy Radon

Ardalan & Associates, PLC

Jerry S. Milliken P.C.

Public Justice, P.C.

Lance Filer

Aria Miran

Rebeca Rivera

Filer-Palmer

Bergener & Associates

Glotzer & Sweat, LLP

Tony Forberg

Eli Moreno-Sanchez

Michael Saeedian

Law Offices of Tony Forberg

Juan J. Dominguez, APLC

Saeedian Law Group AUGUST 2013

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Advertiser’s Index Contents Index Advertiser’s

ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96 Corcoran, Tim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 Fernandez, Ed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .113 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . . . .94 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . . .60 PMA Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . .85 Rubin, Charles “Skip” . . . . . . . . . . . . . . . . . . . . . . . . . .24 Announcements and Career Opportunities CAALA Legal Education Center . . . . . . . . . . . . . . . . .101 CAALA Membership . . . . . . . . . . . . . . . . . . . . . . . . . .103 CAALA VEGAS Sponsors . . . . . . . . . . . . . . . . . . . . . . .95 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Law Office of Herb Fox . . . . . . . . . . . . . . . . . . . . . . . .69 Pine & Pine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Steven B. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . . .18-19 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Bronstein, Peter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .111 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86, 87 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . . .62-63 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . . .53 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57 Gelber, Bruce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . . . .78 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Khorrami Boucher Sumner Sanguinetti, LLP . . . . . . . . .21 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . . .59 Law Office of Philip Michels . . . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . . .25 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 Panish Shea & Boyle . . . . . . . . . . . . . . . . . . . .Back Cover Randolph & Associates . . . . . . . . . . . . . . . . . . . . . . . . .15 Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . . . .37 Shook & Stone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Vartazarian Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . .38 Your Legal Power – Herb Michel . . . . . . . . . . . . . . . . .33

Advertiser’s Index

Advertising

Court Reporters Atkinson Baker Court Reporting . . . . . . . . . . . . . . . . . .68 Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . . .115 Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . . .102 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

122 — The Advocate Magazine

AUGUST 2013

Expert Witnesses – Medical Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . . .32 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . . .52 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . . .27 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . . . .81 Expert Witnesses - Technical & Damages Boster Kobayashi & Associates . . . . . . . . . . . . . . . . . .61 Feldman, Phillip . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 The TASA Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .109 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Farber, Patrick (Struct. Settlements) . . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . . .67 Lawsuit Financial . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Ringler & Associates – Michael Zea . . . . . . . . . . . . . .94 Summit Structured Settlements . . . . . . . . . . . . . . . . . . .50 The James Street Group (Structured Settlements) . . . . .48 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . . .66 CVisualEvidence LLC . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . . .7 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . . .54 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . . .23 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .93 Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . . .58 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . . .117 Trimarco & Associates . . . . . . . . . . . . . . . . . . . . . . . . . .83 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 PJ West & Associates . . . . . . . . . . . . . . . . . . . . . . . . .102 Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . . .51 USA Express Legal & Investigative Services . . . . . . . .80 Legal Technology Eye Legal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . . .77 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . . .70 Massihi, Allen, DPM . . . . . . . . . . . . . . . . . . . . . . . . . . .88 North Valley Eye Medical Group . . . . . . . . . . . . . . . .97 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . . . .42 Power Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Total Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 Vital Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115

Calendar Calendar

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 SSOCIATION OF

OS

NGELES

SSOCIATION OF

OS

NGELES

CAALA August 29, 2013 - September 1, 2013 CAALA Vegas Convention The Wynn Las Vegas Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Oct 3 Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Sept 19, Oct 17 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Sept 19, Oct 17 New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Sept 17, Oct 15 Orange County Trial Lawyers Assn. 25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org September 8, 2013 Bench v. Bar Softball Game & Picnic Game Time 11:00am Picnic Lunch 12:30 -2:00pm Grant Howald Field & Park 3000 Fifth Avenue, Corona Del Mar October 14, 2013 Columbus Day Golf Tournament 9:00am-7:00pm EL Niguel Country Club 23700 Clubhouse Drive Laguna Niguel


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CAALA Resource Center

CAALA VEGAS 2013: Videos available on-demand CAALA is professionally video recording all 22 of this year’s education sessions. These programs will be available to view online shortly after CAALA VEGAS 2013 concludes and will provide a valuable resource and reference tool all year long. For 2013 convention attendees, all recorded sessions will be offered for free until 8/31/2014. Those that were not able to attend this year’s convention can purchase individual sessions at a cost of $75 for CAALA members, $95 for nonmembers. Each on-demand program contains the full video recording of the session, including questions from the audience, and

a PDF of the corresponding syllabus materials. You are able to earn self-study MCLE credits for each program upon completion and, depending on the session topic, specialty credits. CAALA Vegas is an amazing experience all-around, but it’s the engaging, enlightening and inspiring educational sessions led by some of the country’s best legal minds that keep attendees coming back. To view a complete list of the CAALA VEGAS 2013 program videos, visit www.caala.org and click on the “OnDemand Programs” link under the “Legal Education” tab. Then browse all programs by “Subject” to find the “2013 Las Vegas Convention” link.

New CAALA Affiliate Vendors – Your Resource for Legal Services

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.

File & Servexpress, LLC 105 Decker Court, #1100 Irving, TX 75062 (972) 215-5086 Contact: Carisa Newsom E-mail: cnewsome @fileandservexpress.com

Forry Law Group 11150 Sepulveda Blvd. Suite 200 Mission Hills, CA 91345 (972) 215-5086 Contact: Craig B. Forry E-mail: forrylaw@aol.com

CATEGORY: Business Services | Accounting | Legal Software Consultants File & Servexpress provides an electronic platform for e-filing and e-serving between attorneys and courts throughout the litigation process and has a repository to retain and access all documents at any time for as long as needed.

CATEGORY: Witness Preparation | Expert Witness Expert witness and consultant regarding real estate and related actions. Flat fees for agreed scope of consultation and designation. Golding Court Reporters, Inc. 17215 Studebaker Road, Suite 215 Cerritos, CA 90703 (562) 924-2724 Contact: Tom Golding E-mail: tgolding@gte.net

CATEGORY: Court Reporters Golding Court Reporters was established in 1987 and is dedicated to providing the best possible court reporting service to the legal community. Call us for all of your court reporting needs. Market JD, Inc. P.O. Box 1596 Northbrook, IL 60065 (312) 925-8300 Contact: Rafi Arbel E-mail: rafi@marketjd.com CATEGORY: Graphic Design/Marketing/Web site Internet Marketing services to trial lawyers including Web sites, blogs, content creation, search engine optimization, social media and reputation management.

Robson Forensic 354 N. Prince Street Lancaster, PA 17603 (800) 813-6736 Contact: Jesse Arnold E-mail: Jarnold@robsonforensic.com CATEGORY: Forensic Engineering | Accident Reconstruction | Safety Engineering Robson Forensic is a forensic engineering firm with a broad base of experts in complementary disciplines, including architecture, fire investigations, various sciences, and multiple specialty disciplines.

AUGUST 2013

The Advocate Magazine — 123


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From the President Lisa Maki

Consumer Attorneys Association of Los Angeles

Ko

Ai Weiwei Chinese artist and dissident is a living example of the meaning of justice Seven months ago when I was installed as CAALA’s President, CAALA also honored Judge John Shepard Wiley, Jr., as its 2013 Trial Judge of the Year. When he accepted the award, Judge Wiley didn’t talk about himself. He talked about lawyers and what they do. Judge Wiley gave a short but moving speech that started out Judge Wiley, Jr. talking about someone from China whose name no one knew. Afterwards, no one would forget Ai Weiwei’s name, even though they probably had never heard it before. Now, I think about what Judge Wiley said about Ai Weiwei almost every day: “The 2012 documentary film, Ai Weiwei: Never Sorry, is about a Chinese artist and dissident named Ai Weiwei. Ai Weiwei has clashed with the government in China about many things. In response, the government detained and beat Ai Weiwei – hit him, in the head. “When released, Ai Weiwei turned around and sued the police. A lawsuit against Chinese government officials in a Chinese court, Ai Weiwei acknowledges, is hopeless. “So why is Ai Weiwei doing this? In the film he answers: ‘I don’t want them to say sorry. I want them to learn they cannot do things like this. They have to learn that they have to pay for that. They have to pay.’” Judge Wiley then asked everyone: “What does Ai Weiwei really need?” 124 — The Advocate Magazine

AUGUST 2013

(Lisa: Later on he reminded me that I shouted out “JUSTICE!”). He continued: “He needs a jury ... and a lawyer from CAALA. He needs a court that will just let him tell the jury what happened. To the lawyers who can make this universal dream of justice actually come true – I say thank you.’” Judge Wiley is speaking at the CAALA Vegas Convention this year and in the audience will be hundreds of lawyers. These women and men work long hours standing up for people trying to make the universal dream of justice actually come true. Sometimes we all get overwhelmed by the challenges we face doing that and making sure

these people get the justice they deserve. To all the judges and lawyers I hope you will never forget how important the work you are doing is and I thank you. We need courts, juries and attorneys like you who will take and try cases, even the difficult ones, because, in America, you can. I doubt that I will ever meet Ai Weiwei; although I would like to so I could thank him. Instead, I’ll thank Judge Wiley for telling me about Ai Weiwei and for making me think about him every day. And to all the CAALA lawyers: thank you, too, for what you do every day.


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JIN LEW

ELIZABETH A. HERNANDEZ

STEVEN B. STEVENS

BRADFORD S. DAVIS, M.D.

2014, President-elect Korean American Bar Association

CAALA Board of Governors

2001, CAALA Appellate Lawyer of the Year

In-house Medical Director

A new name for California’s premier medical malpractice team. PHILIP MICHELS

LAW OFFICES OF

2011, CAALA President 2003, Trial Lawyer of the Year

A N D A S S O C I AT E S

M E D I CA L M A L P R ACT I C E AT TO R N E YS

OVER TEN FIGURES IN VERDICTS & SETTLEMENTS 8-Figure Verdict Cerebral Palsy 8-Figure Settlement Wrongful Death

7-Figure Verdict Brain Damage

7-Figure Verdict Spinal Cord Injury

7-Figure Settlement Baby Injury

7-Figure Arbitration Award 7-Figure Settlement Misdiagnosis Birth Injury

7-Figure Settlement Transplant

“The Law Offices of Philip Michels and Associates is one of the premier California Med Mal law firms. No stone is left unturned.”

— Michael Bidart, Shernoff Bidart Echeverria Bentley LLP “When it comes to Med Mal, there is no one better. This winning attorney has impeccable trial skills.”

— Brian J. Panish, Panish Shea & Boyle LLP 11755 Wilshire Blvd., #1300 Los Angeles, CA 90025-1540

310.444.1200

www.philmichels.com


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Advocate August 2013 Issue  

For 31 years, Advocate magazine has served attorneys who represent plaintiffs in Southern California

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