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Journal of Consumer Attorneys Associations for Southern California
THE APPEAL & OTHER POST-TRIAL MOTIONS
Also: Red alert: Attorneys’ fees at risk Challenges in establishing loss of earning capacity The other half of virtuosity in legal writing
THE 65TH ANNUAL CAALA INSTALLATION & AWARDS DINNER — January 18, 2014 (Pg. 71)
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Contents Volume 40, Number 12, DECEMBER 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 firstname.lastname@example.org email@example.com Copy Editor Art Director Eileen Goss David Knopf Consumer Attorneys Association of Los Angeles President Treasurer Lisa Maki Ricardo Echeverria President-Elect Secretary Geoffrey Wells Michael Arias First Vice President Immediate Past President Joseph Barrett Michael Alder Second Vice President Executive Director David Ring Stuart Zanville
Board of Governors Martin Aarons, Mike Armitage, Shehnaz Bhujwala, Todd Bloomfield, John Blumberg, Michael Cohen, Scott Corwin, Jeffrey Ehrlich, Mayra Fornos, Stuart Fraenkel, Scott Glovsky, Steve Goldberg, Jeff Greenman, Christa HaggaiRamey, Genie Harrison, Arash Homampour, Neville Johnson, Bill Karns, Aimee Kirby, James Kristy, Lawrence Lallande, Anthony Luti, Shawn McCann, Minh Nguyen, Linda Fermoyle Rice, David Rosen, Jeffrey Rudman, Ibiere Seck, Douglas Silverstein, Armen Tashjian, Kathryn Trepinski, Geraldine Weiss, Jeff Westerman, Ronnivashti Whitehead, Andrew Wright, Dan Zohar Orange County Trial Lawyers Association Secretary President Geraldine Ly Scott Cooper Treasurer President-Elect Casey Johnson
B. James Pantone
Second Vice President Vincent Howard Third Vice President
First Vice President Ted Wacker
H. Shaina Colover
Parliamentarian Jonathan Dwork Immediate Past President Executive Director Janet Thornton
Board of Directors Melinda S. Bell, Gregory G. Brown, Anthony W. Burton, Brent W. Caldwell, Cynthia A. Craig, Jerry N. Gans, Robert B. Gibson, Paul E. Lee, Kevin G. Liebeck, Christopher E. Purcell, Solange E. Ritchie, Sarah C. Serpa, Adina T. Stern, Douglas B. Vanderpool, Janice M. Vinci, Atticus N. Wegman Periodicals postage paid at Los Angeles, California. Copyright © 2013 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited.
ADVOCATE (ISSN 0199-1876) is published monthly at the subscription rate of $50 for 12 issues per year by the Consumer Attorneys Association of Los Angeles, 800 West Sixth Street, #700, Los Angeles, CA 90017 (213) 487-1212 Fax (213) 487-1224 www.caala.org
Send address changes to ADVOCATE
c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA 92051 6 — The Advocate Magazine
writ or not to writ? 14 To A short review of the appellate writ process in a plaintiff’s litigation practice. Sharon J. Arkin
can’t we all be civil? 24 Why Sanctions are a judge’s last resort, so why not try a little civility first? Donna Bader
motions – understanding the rules 36 Post-trial You want a new trial or JNOV. Here’s how to get the process moving. The author includes a very helpful chart of filing deadlines. Jill P. McDonell
or replying to defendant’s post-trial 48 Responding motions
Practical ideas and techniques for responding to opposing counsel’s briefs. Norman Pine and Janet Gusdorff
jury instructions on appeal 64 Your There are few appellate issues that command as much scrutiny as instructional error. The author also sorts out the confusion over special-verdict forms. Herb Fox
in establishing loss of earning capacity 76 Challenges Determining loss of earning capacity involves more than taking past earnings and multiplying for future months and years. David Orlowski
appellate lawyer’s tips for trial lawyers 86 An The only thing that matters on appeal is what is in the record. Holly Boyer
alert: Attorneys’ fees at risk 90 Red Plaintiffs’ appellate- and enforcement-attorney fee awards are at risk in a case pending before the California Supreme Court. Carolina C. Rose
92 Coaching for Attorneys: Improving Productivity and Book review:
By Cami McLaren and Stephanie J. Finelli A self-help book for attorneys. Reviewed by Jeffrey Ehrlich Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager. 760-721-2500 Fax: 760-721-0294 e-mail: firstname.lastname@example.org 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: email@example.com. Please check the website for complete editorial requirements. Reprint permission: E-mail written request to Managing Editor Cindy Cantu: firstname.lastname@example.org
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other half of virtuosity in legal writing 94 The Could your choice of typeface be the difference between a winning and losing brief? Howard Shernoff
A BOUT T HIS I SSUE Appeals and law-and-motion No matter the season, strong writing is always in style.
Jeffrey Isaac Ehrlich
Appellate reports and cases in brief
G OVERNMENT R EL ATIONS B ULLETIN Political Updates from Sacramento and Washington
CAALA R ESOURCE C ENTER CAALA’S Job Bank – A valuable resource for job seekers & employers
Sonic-Calabasas A, Inc. v. Moreno This first post-Concepcion arbitration decision by the California Supreme Court.
Affiliate Vendors Directory Your resource for legal service providers.
Jeffrey Isaac Ehrlich
E XECUTIVE D IRECTOR
Consumer Attorneys Association of Los Angeles
CAALA’s Installation and Awards Dinner Recognizing the Trial Lawyer of the Year and other attorneys and jurists who make a difference.
Orange County Trial Lawyers Association
D IRECTORY OF A DVERTISERS C ALENDAR OF E VENTS
CAALA C ONNECTION C ENTER Welcoming the newest members to CAALA THE
Consumer Attorneys Association of Los Angeles
Last Column – It’s Bittersweet A thank-you message to CAALA.
A year’s worth of thanks. Scott Cooper
On the cover: Main Image: Attorneys Waiting on Courthouse Steps | Mike Watson | www.thinkstockphotos.com
The Advocate Magazine — 7
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About this Issue Jeffrey Isaac Ehrlich Editor-in-Chief
Appeals and law-and-motion No matter the season, strong writing is always in style The focus of our December issue is writing — Appeals and law-and-motion. You’ll recognize many of the authors this month. Norm Pine and his associate, Janet Gusdorff, have given us an article about an important appellate technique – how to read and respond to the other side’s brief. Sharon Arkin takes us through whether it makes sense to take a writ, and if so, how to go about doing it. Jill McDonell wrote syllabus material for her speech at this year’s convention on post-trial motions; it was so helpful that Managing Editor Cindy Cantu and I wanted to include it in this issue. Herb Fox takes on the twin issues of dealing with erroneous jury instructions and verdict forms on appeal. Holly Boyer gives an appellate lawyer’s tips for trial lawyers. And Donna Bader looks at the lesson in civility to be gleaned from Interstate Specialty
Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708. Each of these authors is an accomplished appellate lawyer, and there is much to learn in their articles. But appellate lawyers hold no monopoly on good writing or good ideas. Trial lawyers are versatile. Howard Shernoff (who would be an appellate lawyer if he didn’t try cases) has given us an article on how to make your documents look good. When a man who owns more than 1,000 fonts gives you some advice on typography, it’s worth listening. David Orlowski has written about challenges in proving a loss of earnings capacity at trial. I had the pleasure of reading an interesting book by attorneys Cami McLaren and Lisa Finelli, called Coaching for Lawyers, and I have included a review. The book is worth your time if there is something in your practice or your life
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that you might want to change but are not so sure how to go about it. My thanks to each of the authors who contributed to this issue. I’m proud to send it to our wonderful publisher, Rich Neubauer, so his terrific staff, including copy editor Eileen Goss and art director David Knopf, can turn a bunch of files into a magazine. And none of it would happen without our amazingly well organized managing editor, Cindy Cantu. I also want to thank the CAALA Board for their continuing confidence in me as editor of Advocate. This is the last issue of Advocate for 2013. I hope that 2014 brings new funding to our beleaguered court system. And I wish everyone reading this a very happy holiday season, and best wishes for the New Year.
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10 â€” The Advocate Magazine
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Sharon J. Arkin
To writ or not to writ? A short review of the appellate writ process in a plaintiff’s litigation practice When Jeff Ehrlich, the Editor-inChief of this esteemed publication, asked me to do an article on an appellate issue, I, of course, leapt at the chance. But then he asked me what I wanted to write about. Hmmm. I mentioned that I had, just this year, had two (yes, count them, two!) writ petitions granted by two different appellate courts and Jeff thought that, “an article on how to get a writ granted would be valuable.” And I agree. Such an article would be very valuable, and I’d be glad to write one if I had even a clue about how to actually get a writ granted. I’ve done well over a hundred appellate writ petitions during my career, and I’ve had a total of three of them granted. So, not only is the pool of my successes very small, but they are so varied that it’s impossible to draw any generalizations from them. What I can say is that – based on my experience – the writs you think have a great chance of being granted will be denied and the ones you think have no chance just might get granted. Not much help, I know, but the lesson to be gleaned from my experiences is that, if you have the resources, and a legitimate issue that needs review, it’s worth the effort because you just never know.
For example, one writ petition that I had granted this year was one that any appellate practitioner would have told you had no chance. We had six defendants in a negligence action. They all moved for summary judgment at slightly different times. The first two were denied because their experts’ declarations did not shift their burden on summary judgment. The next four defendants – learning from their co-defendants’ 14 — The Advocate Magazine
mistakes – submitted expert declarations that were far more extensive but which, to my mind, still did not shift the moving party’s burden. Despite that, we submitted our own extensive expert-witness declarations in opposition. But the trial court granted those motions and we were faced with going to trial against two of the defendants and appealing the summary judgments against the other four. Normally, that would not have been a promising case for writ relief because we, at least theoretically, had an adequate legal remedy as to the four defendants who obtained summary judgment – that is, we could appeal from the judgment. Despite the virtual certainty that the writ petition would be summarily denied, we did the petition anyway, emphasizing the probable waste of the trial court’s resources in having to hold two trials in the same case: One against the defendants that lost their summary judgment motions and another after winning the appeal and reversal of the judgment as to the other defendants. Maybe that helped. Maybe it also helped that the appellate court agreed with our arguments on the substantive issues, and between those two factors, a writ was the most efficient way to deal with the problem. The other writ petition that I had granted this year was on a First Amendment issue – which, I think, was the key to that win. The appellate courts love First Amendment issues and if you have a compelling situation, you have a better-than-average shot. But a better-than-average shot does not always mean much. I also had a writ petition denied just recently that had “winner” written all over it. The issue was a determination on summary judgment
as to a key insurance-contract interpretation issue. The ruling was against us, but did not completely abrogate our chance of ultimately winning the case on other grounds. But it was a pretty key element in the case. The trial court certified the issue for interim review under Code of Civil Procedure section 166.1, and we filed the writ petition. While the defense disagreed with our position on the merits, it agreed in its response to the petition that the issue needed interim review. So, here we have both parties and the trial court agreeing that review was necessary and what was the result? Yep, denied. The bottom line is that you just never know what is going to capture the interest of a busy, overworked, and understaffed appellate court. Hence my advice, above, that if you have the resources, and a legitimate issue, it’s worth trying. So, you’ve decided to do a writ petition (sometimes referred to as “taking a writ”). What next?
Like many other appellate issues (What is an appealable order? When does your notice of appeal have to be filed?), when and how to do a writ petition can be complicated. There are practice guides available from both the Rutter Group and CEB that are well-written, thorough and very helpful. If you decide you need to do a writ petition, and you decide to do it yourself rather than utilize the expertise of an appellate specialist, pore over those practice guides to make sure you are: (1) Taking a writ from an appropriate order; (2) Filing it in time; and (3) Following the procedural requirements to the letter. I’m just going
To Writ or not to Writ continues
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To Writ or Not to Writ — continued
to give you a broad-brush outline of those elements here.
There are a number of statutory writ procedures that deal with specialized areas of the law. The procedural process is the same as for common-law writs (which is mostly what you are going to see in your practice), but there are some specialized timing and other issues with statutory writs that I’m not going to cover here, with two exceptions: • The first exception that sometimes comes up in a plaintiffs’ litigation practice is when you want to file a challenge against a judge. The only appellate relief available for the denial of either a peremptory challenge under Code of Civil Procedure section 170.6 or a more formal challenge under section 170.1 is by way of a petition for writ of mandate – it cannot be appealed later. (Code Civ Proc., § 170.3, subdivision (d).) And – pay attention to this – the writ petition must be filed and served within 10 days of the service of the written notice of entry of the order, plus additional time pursuant to Code of Civil Procedure section 1013 if the notice is served by other than personal service.
• The second exception that you are most likely to see is seeking interim review of an order granting summary adjudication. Under Code of Civil Procedure section 437c, subdivision (m)(1), interim review of an order granting summary adjudication (but not summary judgment), can be sought by way of a writ petition filed no later than 20 days after the service of a written notice of entry of the order, and, again, the period within which to file and serve the writ is extended under section 1013 if the notice is not personally served. Also, for good cause, the trial court can also extend the time within which to file and serve the petition for an additional 10 days. For our purposes, those are the most important statutory writs, and that’s all that we’re going to say about them here. But if you’re practicing in a particular area of law, there may be others that relate to your cases, so don’t take this as an exhaustive summary.
Most writ petitions that you will be concerned with relate to what are “common law” writs, i.e., petitions from an order that is not otherwise-covered by a statutory mandate or requirement.
The tricky part in determining whether you can file a common-law writ is whether, in fact, you’re dealing with an appealable order. Although most orders are not appealable (discovery orders, for example), there are a number of orders which are, in fact, appealable (e.g., orders granting or denying attorney fees after judgment, orders denying class certification, orders denying a motion to compel arbitration, or orders granting or denying an anti-SLAPP motion). If you file a writ petition rather than a notice of appeal, you may well miss the time for filing the notice of appeal and you will have waived your right to appeal the order at all. So, you must first determine whether the order is appealable or not. Both the Rutter Group appellate practice guide and the CEB books on writs and appeals cover this topic thoroughly. The CEB books even have a very handy, multipage chart that helps decipher the often confusing assessment of whether a particular order is appealable or not.
When to file
The statutes that establish statutory writs generally have internal timeframes,
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16 — The Advocate Magazine
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so pay attention to the statutes themselves. Otherwise, there is no “formal” rule establishing when a common-law writ petition must be filed, but there are some informal rules that you have to pay attention to. First, your time for filing a writ petition always starts with the service of the notice of entry of the order – which is normally written, unless you’ve waived notice at the hearing. If you waive notice, your time starts then. Otherwise it starts when the written notice of the order is served, and is extended under section 1013 depending on the manner of service. Although you should file your writ petition sooner rather than later, the generally-acknowledged outside time frame is 60 days from the service of the notice of entry of the order. You may be able to go beyond that date if you have a great excuse but, really, 60 days should be enough. As with everything, there is an exception to the 60-day rule: If you are requesting that the appellate court stay the case pending consideration of the writ, you obviously need to file the petition as soon as possible. The rule of thumb is that the writ petition should be filed within five days of the notice of entry of the order, but, again, that’s not a hard-and-fast rule if there is some good cause for the delay.
The filing fee is $775. There is nothing very complicated about preparing and filing a writ petition and the supporting exhibits – except that you have to do it right. Again, your best bet is to use one of the practice guides and simply do what they say. Here, however, are some of the basics:
The petition must be no more than 14,000 words. It must be bound in red covers (front and back), with the caption page copied onto the front cover. You must include as your first page after the front cover a certificate of interested parties, which can either be in regular text 18 — The Advocate Magazine
or you can use the form available on the Judicial Council website (http://www.courts.ca.gov/forms.htm, and look under the category for appellate forms). Also, if you are requesting a stay of the trial court proceedings pending the resolution of the writ petition, you must indicate on the cover that a stay is requested and, if appropriate, indicate the upcoming date in the trial court that requires the stay. For example, if the order requires production of confidential information, include the date ordered for production; if it’s an evidentiary issue that relates to the trial, indicate the trial date. And if you are seeking a stay, you must personally serve the superior court (which is the respondent) and the real parties in interest. Otherwise, service can be by priority mail. The petition has a required format. You can open with an introductory discussion of what the issues are and why extraordinary relief by way of a writ petition is warranted. You must then include the actual “petition,” which can be a petition for writ of mandate, prohibition or other extraordinary relief. What you actually call the relief sought in your petition is not controlling; the court will issue whatever relief is actually necessary, so don’t be intimidated by the name. The petition part of the brief consists of numbered paragraphs (like a pleading) that lay out the factual background and the procedural background. You want to give the court enough information to understand what the case is about and to be able to assess both the substantive basis for your claims and the need for the court’s extraordinary intervention. The petition must also contain a prayer, which is pretty rote, and a verification. Most commonly, the attorney verifies the petition, but be sure to indicate that you are verifying it because you are more familiar with the factual and procedural context than your client is. What follows is your legal memorandum. For the most part it is like a normal appellate brief and you should discuss the standard of review, discuss the
importance of and need for extraordinary relief and discuss the substantive issues, demonstrating how the trial court got it wrong. Although your brief needs to lay out your substantive argument convincingly, the real goal of the petition is to convince the appellate court that your case should get to jump the line and cut in front of all the other appellate cases that have been waiting patiently for their turn. There must be some compelling urgency or some strong justification for the court to put aside its current work load and take your case. The most common situation that the practice guides and most appellate specialists acknowledge have the greatest chance of success are discovery orders requiring production of confidential or privileged information. The threatened harm is obvious: Unless interim review is provided on an urgent basis (i.e., before the production is required by order of the trial court), there will be no possible, let alone adequate, relief by any other means. Once the bell has “rung,” and the information is produced, it’s out in the world and not retrievable. Obviously, if it looks like a judge is going to require you to produce confidential or privileged information (whether by way of interrogatory responses, document production or medical or mental exams of your client), it is in your client’s best interest to ask the judge to issue a protective order to at least avoid dissemination of the information outside of the litigation. Doing so will diminish your chances of getting a writ issued, but is far and away the best protection for your client in light of the fact that so few writ petitions are granted. Just like in an appellate brief, every factual statement in the petition (both in the formal “petition” part and in the points and authorities) must set forth a citation to the record, which brings us to the exhibits.
Your writ petition must include all the documents from the trial court that
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are necessary for the appellate court to make its decision. If there are only a few documents (unlikely), they can be bound together with the petition itself. More commonly it is much easier to provide the record in separately bound volume(s). The exhibits that are essential to include are: The original complaint, the operative complaint (if different from the original complaint), the answer of the real party or parties in interest (if one has been filed) and all the motion, opposition and reply papers relevant to the order, the order, the notice of entry of the order (if there was one) and the reporter’s certified transcript. Depending on the timing, you may not yet have the reporter’s transcript at the time you file
your petition, but include a designated tab for it (usually the last one) and indicate in the petition portion of your brief that the transcript is not yet available but will be supplementally filed as “Exhibit [whatever]” when it becomes available. The exhibits must be in chronological order, must be separated by tabs, should be sequentially page-numbered and must be bound in volumes of no more than 300 pages each (although smaller volumes are easier for both you and the court to work with). Each volume of exhibits should contain a table at the front listing the tab number or letter of the exhibit, identification of the exhibit, the filing date and the volume and page number where that exhibit begins. The exhibits are also to be bound in red covers.
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When you reference an exhibit or a specific page of an exhibit in your brief, reference it by tab number/letter, volume number, the sequential page number and, if appropriate, line numbers that support your assertion. It should look something like this: Ex. A, Vol. 1, 10:1325. But don’t stress out about exactly how you do your references. As long as they are clear and make it easy for the court to find what you’re referring to, it will be fine.
Filing and service
The petition and exhibits must be served on all the real parties in interest. You only have to serve the respondent (i.e., the trial court) with the actual petition, but not the exhibits. Proofs of service must be attached to the petition and to each volume of the exhibits. The original and three copies of the petition and the copy of the exhibits with the original signed proofs of service are filed with the appellate court and must also be electronically filed, depending on which appellate district you are in. The filing fee must also be submitted. Get conformed copies of the face pages of the petition and each volume of exhibits. Then, wait. Often you will get an order summarily denying your writ petition. If you do, you can – within 10 days – seek review from the Supreme Court. But don’t hold your breath. Sometimes the appellate court will really torture you and take weeks before denying the petition. But sometimes, just sometimes, the petition actually gets granted! Then the fun really begins! But that’s a subject for another article . . . Sharon J. Arkin is the principal of The Arkin Law Firm. She has been certified by the California State Bar, Board of Legal Specialization as an appellate specialist since 2001. In 2011 Ms. Arkin received the CLAY award from California Lawyer magazine as an Appellate Attorney of the Year and in 2012 was named one of the Top 50 Women Attorneys in Southern California by Los Angeles Magazine. E-mail:firstname.lastname@example.org.
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The Advocate Magazine â€” 21
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Why can’t we all be civil? Sanctions are a judge’s last resort, so why not try a little civility first? California Rules of Court, rule 8.1105(c), sets forth the standards for publishing an opinion, most of which can be categorized as expanding on the rules of law. But sometimes the Court of Appeal wants to say something to us lawyers that, while it doesn’t officially fit the parameters of a rule of law, provides “guidance” to legal practitioners. Or perhaps the court is just in the mood for a good scolding. The recent decision in Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708 provided 24 — The Advocate Magazine
Justice Bedsworth of the Court of Appeal in Fourth Appellate District, Division Three with a forum for giving a good old-fashioned lecture on civility to, well, just about everyone, except perhaps for the actual litigants. Officially, the case dealt with the trial court’s authority to award sanctions under Code of Civil Procedure section 128.7 on its own motion. But rather than keeping those sanctions for the superior court, it ordered the sanctions to be paid to the opposing side, which
hadn’t even asked for them, in the amount of $5,076.16. If only Santa Claus were so generous! We can’t even get that much on a typical day even if our opponent misses a deposition, refuses to answer interrogatories, or engages in all sorts of discovery abuses. Apparently the trial court was “understandably chagrinned by the rather dilatory pace at which the case was being prosecuted” and imposed sanctions under section 128.7 by its own motion.
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(Id. at p. 710.) Just like that! The appellate court was obviously chagrinned by the trial court’s actions, finding it turned to sanctions “too quickly,” resulting in three different errors: Sanctions are a judge’s last resort. At bottom, they are an admission of failure. When judges resort to sanctions, it means we have failed to adequately communicate to counsel what we believe the law requires, failed to impress counsel with the seriousness of our requirements, and failed even to intimidate counsel with the fact we hold the high ground: the literal high ground of the bench and the figurative high ground of the state’s authority. We do not like to admit failure so we sanction reluctantly. But sanctions can level the playing field. If we do not take action against parties and attorneys who do not follow the rules, we handicap those who do. If we ignore transgressions, we encourage transgressors. So sanctions serve a purpose other than punishment. If we cannot convince attorneys to conduct themselves honorably and ethically by appealing to their character, we can sometimes bring them into line by convincing them that obeying the rules is the route of least resistance – the less expensive alternative. (Id. at p. 710.)
Let’s digress and get a bit of background: In July 2011 the plaintiff, Interstate Specialty Marketing, Inc., filed a verified complaint for breach of contract against ICRA Sapphire. The plaintiff alleged it had contracted with Sapphire to convert a computer software application from DOS to a format supportable by Microsoft. Five years later, Sapphire had yet to complete the conversion. The complaint averred that Exhibit A, a letter dated November 2002, was true and correct copy of the agreement. Plaintiff ’s counsel had searched for a copy of the agreement, but upon not finding a signed version (which had either been lost or not given to Interstate), its attorneys attached the 26 — The Advocate Magazine
letter, believing it to be the agreement. (Hey, guys, that is one good use of the forgiving phrase “informed and believe.” Maybe they didn’t want to admit their doubt or that they lacked a signed copy of the agreement.) Isn’t that what discovery is for? You can ask the other side for documents in a scattergun approach without admitting ignorance and see what you come up with. But plaintiff ’s attorneys did not even have to go that far because Sapphire had a true and correct copy of the signed agreement and attached it to its cross-complaint. Perhaps plaintiff ’s attorneys were buried under a mountain of work and failed to notice the difference between the two documents. Then in requests for admission, the defendant asked the plaintiff to admit its Exhibit A was not the operative contract or the “final expression of the parties.” Interstate admitted as much, and Sapphire even took the next step and responded to discovery, denying Exhibit A was the operative contract. So, if the plaintiff ’s attorney missed the correct agreement attached to the complaint, there were two more opportunities to find the error. What didn’t happen was that the defendant’s attorneys called the error to the attention of plaintiff ’s attorneys and asked for an amended complaint. But life is not always easy, so we proceed along the path of complicating a pretty simple breach-of-contract action. Sapphire jumped on the opportunity to win by a technical knockout and filed a motion for summary judgment based solely on the argument (that) plaintiff could not prevail on a contract, which it admitted was not the final expression of the contract between the parties. That motion served a wake-up call to plaintiff ’s attorney, who then brought an ex parte application to amend the complaint, which was first scheduled three weeks before the hearing date on the summary judgment motion. Two days later, the judge took the ex parte motion under submission and decided he would rule on it at the same time he ruled on the motion for summary judgment.
That meant that no one knew whether the trial court would allow plaintiff to fix its error until the very date it was ruling on a motion designed to end the litigation based on the unfixed error. On the date of the hearing, the trial court denied the motion and granted the ex parte application to amend the complaint, saving plaintiff ’s attorneys many sleepless nights and essentially saving the case from ending right there. The court further noted that the Exhibit A and real contract were similar and Sapphire failed to note any material differences in the two. The trial court then set an order to show cause “re: Dismissal are Sanctions” against plaintiff and its attorneys because it had attached the wrong agreement to the complaint. Defendant’s attorney noted how long it had taken plaintiff to fix its error; meanwhile, it had incurred $5,076.16 in fees for the failed motion for summary judgment. The trial court then avoided the 21day safe harbor provision in Code of Civil Procedure section 128.7 by finding the time began to run when the motion for summary judgment was filed. That meant plaintiff ’s attorney took two months before seeking an amendment. In assessing sanctions, the trial court stated, “I’m not looking for a pound of flesh here. This isn’t sanctions for the sake of sanctions. If I was doing that I’d be happy to help rectify the court’s budget problems by sanctioning you in the extreme.” (Id. at p. 713, fn. 7.) On the contrary, the court considered the award a “cost allocation” because the defendant’s attorneys had to go to all of that hard work to file a motion that could have been avoided had anyone actually bothered to communicate. And I am sure that the plaintiff was relieved to know it was not really being sanctioned but allocating costs. A good lecture always requires a reference to Shakespeare and both the lower court and the appellate court seized the opportunity to rely on the master playwright, who had the good sense to stay in the theatre and avoid the courtroom:
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The trial judge prefaced his decision to impose sanctions on Interstate and its counsel (and under these facts, we assume the brunt would be borne by counsel) with a reference to Shakespeare – Shylock’s collateral in Merchant of Venice. He might well have chosen a different Shakespeare play and allusion – to the plague deserved by two warring houses each of which has caused unnecessary bloodletting. Both sides here could have done better. (Id. at p. 714.) Despite its criticism of what the lower court did, the appellate court acknowledged the judge had “good reason to be chagrined by the conduct of [plaintiff ’s] counsel, . . .” (Id. at p. 714.)
Plaintiff ’s attorneys had been inattentive and when the facts or correct exhibit was presented to them, they moved slower than molasses in fixing the problem, resulting in a lot of work and unnecessary hearings for everyone. Defendant’s attorneys did not escape criticism because the attorney would most certainly know and cherish our state’s public policy of disposing of cases on their merits, which don’t typically include winning because the plaintiff ’s attorney attached the wrong exhibit to a complaint. The court observed that defendant’s attorneys could have telephoned or written about the error, and then brought the motion if plaintiff ’s attorney refused to take steps to correct the error. “Instead, Sapphire’s counsel
yielded to the temptation to exploit an adversary’s gaffe so as to deny him a hearing on the merits.” (Id. at p. 715.) Justice Bedsworth characterized the maneuver as “the Vince Lombardi approach to the law.” (Ibid.) The appellate court was very clear in its opinion, but it then took the next step of informing the rest of us of how it views such practices: Counsel here was not as culpable as counsel in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, but he did evidence a disturbing predisposition to pick up the sword before the plowshare. We need to turn away from that kind of practice. ‘The law should not create an incentive to take the
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DECEMBER 2013 AUGUST 2013
The Advocate Advocate Magazine Magazine — — 75 29 The
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scorched earth, feet-to-the-fire attitude that is all too common in litigation today.’ [quoting from Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17] ‘We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility . . . Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.’ (Id. at p. 715.) Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267 was heard by the same appellate court and a frustrated Justice Bedsworth wrote the opinion, outlining a “cautionary tale” for plaintiff ’s
attorneys who attempt to seek unearned victory due to a defendant’s default. Plaintiff ’s attorney was also sanctioned pursuant to California Rules of Court, rules 8.63, 8.204(a)(10)(B) and 8.21(b)(3) for virtually copying a brief and request for sanctions filed in an earlier appeal even after seeking an extension of time for complexity, the need for more time to research the issues, and other commitments. (Apparently the trial attorney neglected to change the name of the party from the earlier appeal, providing proof of his propensity to rely on the “cut and paste” method of writing original briefs.) It probably didn’t help the attorney’s cause in Kim when he sent another attorney to the oral argument, one who was unaware sanctions were being considered.
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Of course, the appellate court responded by issuing a second order to require the trial attorney to personally appear on the sanctions issue. The court in Kim noted how much the courts must be able to rely on the “honesty of counsel.” We are, after all, “officers of the court.” That title has to mean something, and the court concluded it did, “with all the assumptions of honor and integrity that append to it, must not be allowed to lose its significance.” (Id. at p. 293.) But unlike Interstate Specialty Marketing, the Kim case involved an attorney’s request for sanctions, used more as a tool for bullying than a legitimate request. Rather than granting the attorney’s request for sanctions, the court
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awarded sanctions against the trial attorney in the amount of $10,000 and stated: It is difficult for us to express how wrong that is. Sanctions are serious
business. They deserve more thought than the choice of a salad dressing. ‘I’ll have the sanctions, please. No, on second thought, bring me the balsamic;
I’m trying to lose a few pounds.’ A request for sanctions can never be so lightly considered as to be copied word for word from another brief – much less copied in reliance on facts from another case that do not obtain in the present one. A request for sanctions should be reserved for serious violations of the standard of practice, not used as a bullying tactic. Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It is time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions. (Id. at p. 293.) Plaintiff ’s error in Interstate Specialty Marketing was “careless,” to be sure, but the error wasn’t obviously intentional or malicious nor was it done for an improper purpose. That was one of the factors that saved plaintiff from shelling out a lot of money (if only for the sanction award). Section 128.7(b) lists four types of conduct that will support an award of sanctions and mistake, or even stupidity, is nowhere to be found. The 21-day safe harbor provision also served as a barrier to an award of sanctions because the appellate court concluded the 21-days runs from the date of service of notice of the OSC hearing, and not the initial filing of the motion for summary judgment, which did not ask for sanctions. It continued, “Nothing in the section would allow for silent running of a safe harbor statute; it is not a safe harbor if there are enemy submarines in it.” (Id. at p. 716.) A third error occurred when the trial court awarded sanctions to the defendant. The appellate court concluded that case law does not allow for sanctions awarded on a court’s own motion to be
Civil continues 32 — The Advocate Magazine
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made payable to the opponent, citing Malevec v. Hamrell (1999) 70 Cal.App.4th 434, 443, 444. Nor could the trial court rely on its common-law authority or inherent power because case law has also held that such a power does not include the power to award attorney fees as a sanction for attorney misconduct in the absence of authority provided in a statute or by agreement of the parties. The defendant was not without a remedy, however, if plaintiff ’s verification proved to be false. It could use the verification to impeach the plaintiff or prove perjury had been committed. The appellate court concluded by awarding costs to the defendant, not as a “punishment” but as a “default cost apportionment. But it is impossible to make the order without observing that a
34 — The Advocate Magazine
phone call alerting opposing counsel to his corrigendum, would have avoided this consequence.” (Id. at p. 718.) What is not mentioned here, and is a point of curiosity to me, is whether the attorneys paid for appellate counsel or passed that expense on to their clients. If attorneys rely on time-consuming and expensive scorched-earth tactics, why should the client pay for their lack of civility and cooperation? In conclusion, I have now passed on this lecture as food for thought for trial attorneys. A little civility would have gone a long way in resolving the problems with plaintiff ’s complaint and complacency. As I have said many times before, credibility is part of an attorney’s reputation that should never be traded away in an effort to seek a tactical advan-
tage. In the cases cited above, the attorneys won a small battle during the litigation process, but in the end, may have lost the war, which may be financed by clients who are unaware of the attorney’s misbehavior. 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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Post-trial motions – understanding the rules You want a new trial or JNOV. Here’s how to get the process moving This article summarizes post-trial motions. Accompanying it is a chart of deadlines on page 39. Cut out the deadlines chart and pin it to your bulletin board. Nothing in this article will be of any use if you miss your filing deadlines. I focus on motions for new trial here because they tend to cause the most confusion and are extremely critical. All citations are to the Code of Civil Procedure unless otherwise indicated.
Motions for new trial
While I can’t set forth all procedural law to be considered when filing/opposing a motion for new trial, I would like to address the few areas that I have seen as most important in winning: Notice of intent common mistakes; applicable standard; necessary evidence and evidentiary standards; and timing issues. The California Supreme Court explained, “[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Because new trial motions are creatures of statute, “the procedural steps ... for making and determining such a motion are mandatory and must be strictly followed [citations].” (Linhart v. Nelson (1976) 18 Cal.3d 641, 644. The Notice of Intention A Notice of Intention to Move for New Trial is not a Notice of Motion. In fact, a date of hearing is not placed on the Notice of Intention, and the Trial Court will normally inform you of the hearing date and the need to provide notice of the date. A few things must be included in the Notice of Intention. 36 — The Advocate Magazine
First and foremost, list all grounds set forth in Section 657 on which the new trial will be sought (1.) Irregularity in the proceedings, court orders or abuse of discretion; (2.) Misconduct of the jury; (3.) Accident or surprise, which ordinary prudence could not have guarded against; (4.) Newly discovered evidence, which could not have been discovered and produced at the trial; (5.) Excessive or inadequate damages; (6.) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law; and (7.) Error in law, occurring at the trial and excepted to by the moving party. You should absolutely be over-inclusive in your designation of statutory grounds; otherwise you will waive that as a basis. Second, you should state whether the motion is made upon affidavits or the minutes of the court or both. It must be based upon affidavits if grounds are irregularity of proceedings, misconduct of the jury, accident or surprise, or newlydiscovery evidence. It must be based upon minutes of the court if grounds are insufficiency of the evidence, verdict or decision against law, error in law, or excessive or inadequate damages. (§ 658.) Third, although not required, I always include in the first line a bolded sentence stating, “Entry of Judgment was served on [date specified]. Jurisdiction to rule on the motion for new trial and the motion for judgment notwithstanding the verdict will expire on [date specified].” This allows the clerk and the Court to easily determine timing priorities for both setting the hearing date and issuing a ruling (after which the Court no longer has jurisdiction).
Finally, the Memorandum of Points and Authorities in support of the motion may be filed at the same time as the Notice of Intention (which I usually do if I am filing an alternative request for JNOV), but it must be filed within 10 days of the Notice of Intention.
Grounds for new trial
The most commonly used grounds for new trial under Section 657 are specifically addressed below. Juror Misconduct (§ 657(2)). “The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury ...” (Turner v. Louisiana (1965) 379 U.S. 466, 472-473, 85 S.Ct. 546, 549-550.) “When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation omitted.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation omitted.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.” (People v. Perez (1992) 4 Cal.App.4th 893, 906.) It is well settled that a presumption of prejudice arises from any juror misconduct ... However, the presumption may be rebutted by proof that no prejudice actually resulted.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416; see also, People v. Nesler (1997) 16 Cal.4th 561, 578-579.) “[I]t may be rebutted by an affirmative evidentiary
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showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. (Hasson, supra, 32 Cal.3d at 417.) Misconduct based upon bias and prejudice Certain principles must be considered if bias and prejudice are the alleged basis of juror misconduct. In McDonald v. Southern Pacific Transportation Co., (1999) 71 Cal.App.4th 256, the court noted that when “there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment: The test is an objective one, calling for inquiry as to whether the misconduct ‘is inherently likely to have influenced the juror’. This analysis of prejudice ‘is different from, and indeed less tolerant than, normal harmless error analysis, because jury misconduct threatens the structural integrity of the trial.’” (Id. at pp. 265-266, internal quotation marks and citations omitted.) The test is less tolerant than a harmless-error analysis, “for if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. A biased adjudicator is one of the few structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” (In re Carpenter (1995) 9 Cal.4th 634, 654 internal quotation marks and citations omitted.) A concealed racial bias toward a party is both juror misconduct and grounds for reversal. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) In affirming the granting of new trial upon the grounds of juror misconduct, the California Supreme Court stated that when a jury is tainted by racial bias, the impropriety of a single juror may be sufficient to destroy the integrity of the verdict. (Id. at p. 111.) Racist statements are judicially described as “the most destructive misconduct.” (Tapia v. Barker (1984) 160 Cal.App.3d 761, 766.)
The trial court is required to objectively review the entire record and evidence of bias in order to determine if the extraneous evidence was inherently and substantially likely to have biased the jury or whether a substantial likelihood of actual bias to any juror nonetheless arose based upon the totality of the circumstances surrounding the misconduct. (In re Carpenter, supra, 9 Cal.4th at 653-654.) If either is found, prejudice has not been rebutted. In Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 508, the Court held, “where it is reasonably possible that in the absence of misconduct the jury would have arrived at a different verdict, the moving party is entitled to a new trial.” The presumption of prejudice is an evidentiary aid to the parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of the case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Code section 1150 erects, and it seeks to lower that barrier somewhat. (Hasson, supra, 32 Cal.3d at 416.) Misconduct based on juror introduction of outside expertise and consideration A juror should not discuss an opinion explicitly based on specialized information obtained from outside sources. “Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963.) “Jurors cannot, without violation of their oath, communicate to fellow jurors information from sources outside the evidence in the case.” (Smith v. Covell (1980) 100 Cal.App.3d 947, 952.) A juror’s disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias. (Nesler, supra, 16 Cal.4th at 587.)
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Post-trial deadlines Motion for new trial
Cost memorandum/request for costs
Notice of Intention to Move for New Trial due before entry of judgment; or w/in 15 days of mailing of entry of judgment by clerk or party; or 180 from entry of judgment, whichever is earliest [Code Civ. Proc., § 657, 659]. Affidavits due 10 days thereafter. **Not extended for mailing/FedEx under 1013** Party receiving Notice has 15 days after the service of that notice to file notice of intention to move for a new trial. Trial Court’s jurisdiction to rule expires 60 days from the mailing of notice of entry of judgment by the clerk or a party [CCP §660].
Memo of costs due w/in 15 days of mailing of entry of judgment or 180 from entry of judgment, whichever is earliest [Cal. Rules of Court, rule 3.1700, Code Civ. Proc., §§1032, 1033.5] Motion for (contractual or statutory) attorney’s fees due within the time for filing a notice of appeal (see below) [Cal. Rules of Court, rule 3.1702, 3.1704]
Motion for judgment notwithstanding the verdict (“JNOV”) Motion for JNOV due: before entry of judgment; w/in 15 days of mailing of entry of judgment by clerk or party; or 180 from entry of judgment, whichever is earliest [Code Civ. Proc., §§ 629, 659] **Not extended for mailing/FedEx under 1013**
Motion to vacate (and/or correct) verdict Notice of Intention to Move to Vacate or Correct due: before entry of judgment, w/in 15 days of mailing of entry of judgment by clerk or party; or 180 from entry of judgment, whichever is earliest [Code Civ. Proc., §§ 659, 663, 663a] **Not extended for mailing/FedEx under 1013**
In Jones v. Sieve, (1988) 203 Cal.App.3d 359, a medical-malpractice action, the trial court’s ruling granting a new trial was based upon a single juror affidavit demonstrating that a juror had described to the jury her own personal experiences with preeclampsia and another juror had referred to an outside text for definitions. The Jones Court explained, “it was the conduct of the jurors that was at issue, not the content of any statements made,” because statements of the jurors can show substantial bias, prejudice and prejudgment of issues. (Id. at pp. 366-367.) Other examples include Young v. Brunicardi, (1986) 187 Cal.App.3d 1344, 1348 [juror misconduct where retired police officer on jury told other jurors
Motion to tax costs W/in 15 days of service of cost memorandum, is extended under Code of Civil Procedure section 1013 [Cal. Rules of Court, rule 3.1700(b), CCP §1033.5]
Notice of Appeal Before earliest of: 60 days after the court clerk mails notice of entry of judgment; 60 days after the party serves or is served Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or 180 days after entry of judgment. [Cal. Rules of Court, rule 8.104] A valid Motion for New Trial extends the time to move for appeal by 30 days after the clerk or a party serves an order denying the motion or 30 days after denied by operation of law (60 day expiration), but not more than 180 days from entry of judgment (exceptions re additur/remittitur apply) (Cal. Rules of Court, rule 8.108(a)) (Granting of Motion for New Trial directly appealable) [Code Civ. Proc., § 974.1(a)(4)]
that defendant was not negligent if he was not cited for a Vehicle Code violation]; and McDonald v. So. Pac. Transp. Co. (1999) 71 Cal.App.4th 256,263 [misconduct for telling jury that, based on his prior work experience in the industry, no crossing gates at the disputed rail crossing were necessary]. Irregularity in the proceedings, court order or abuse of discretion preventing fair trial and error in law (§ 657(1) & (7)) Section 657(1) includes personal misconduct of the trial judge (Gay v. Torrance (1904) 145 Cal. 144, 149), evidentiary rulings (Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294), jury instructions (Soule v. General Motors (1994) Cal.App.4th 548, 580) or other
orders if they prevented a party from having a fair trial. This also includes misconduct of opposing counsel. (Russell v. Dopp (1995) 36 Cal.App.4th 765, 775.) Section 657(7) provides as grounds for new trial: “errors in law, occurring in trial and excepted to by the party making the application,” which was prejudicial (pursuant to case law). I have grouped these two sections together, because they can often overlap. Please note that if you are cited to one sub-section in your Notice of Intention to Move for New Trial, you should probably be safe and also include the other. This last subsection requires that you have made an objection on the record, that it occurred at trial and that it caused prejudice, which DECEMBER 2013
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does not necessarily encompass all errors of law by the court that deprived a party of a fair trial. Just be aware of the overlap and how your supporting evidence may qualify under these separate provisions.
Insufficiency of the evidence and excessive or inadequate damages (§ 657(6)) Section 657 states in relevant part: “A new trial shall not be granted upon the ground of insufficiency of the evi-
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dence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” When a trial court rules on a newtrial motion based on the insufficiency of the evidence, it may draw its own conclusions about credibility and can resolve conflicting inferences differently than the way the jury did. (Mercer v. Perez (1968) 68 Cal.2d 104, 112-113; Ballard v. Pacific Greyhound Lines (1946) 28 Cal.2d 357, 359; Valedez v. J.D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 512.) Its ruling will be upheld on appeal unless the ruling is not supported by substantial evidence. (Ballard, 28 Cal.2d at p. 359.) A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. Hence given the latitude afforded a judge in new trial motions, orders granting new trials are ‘infrequently reversed.’ (Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) The California Supreme Court explained, “[t]he same statutory test applies in determining whether a new trial should be granted either on the ground of excessive or inadequate damages, or on the ground of insufficiency of the evidence.” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 61.) “When a motion is made upon the ground of insufficient evidence, it ‘must be made on the minutes of the court.’ The ‘minutes of the court’ include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken (Gov. Code, § 69844) and may also include depositions and exhibits admitted into evidence and the trial transcript.”
Post-trial Motions continues 40 — The Advocate Magazine
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Post-trial Motions — continued
(Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 839, fn. 4.) “A finding that the damages were excessive necessarily implies that that evidence did not justify the award.” (Sinz v. Owens (1949) 33 Cal.2d 749, 760; Van Ostrum v. State of California (1957) 148 Cal.App.2d 1.) Reviewing a decision for excessive damages, the Supreme Court held: While a reviewing court, in passing upon the question involved here, may consider amounts awarded in similar cases [citations omitted], in the final analysis the question in each case must be determined from its own peculiar facts and circumstances [citation omitted] and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger
than is ordinarily allowed in such cases. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages. (Daggett v. Atchinson, Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666; accord Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 406, citing Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12.) Necessary evidence and evidentiary standards When it comes to evidence, remember first to get it! That means stop the
jury, talk to them and get their contact information as soon as the verdict is rendered and the court dismisses them. Have someone there to help you as need be. Whether you win or lose – do it. If you win and particularly if you win big, expect your opposition to file a motion for new trial and be prepared to get your juror affidavits both to obtain support for the verdict and to confirm the jurors’ testimony before being approached by opposing counsel. If they refuse, at least make sure to let them know their right not to speak to either counsel or counsel’s investigators, whose calls they are likely to receive. Remember that evidentiary standards are a bit upside down when it comes to juror affidavits. The basic
Post-trial Motions continues
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premise of Evidence Code section1150(a) forbids evidence “concerning the mental processes by which [the verdict] was
determined.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) On the other hand, evidence of “overt acts” – that is,
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conduct that is open to sight, hearing, and other senses, is admissible. (In re Stankewitz (1985) 40 Cal.3d 391, 398; see also, In re Hamilton (1999) 20 Cal.4th 273, 295, and People v. Hutchinson (1969) 71 Cal.2d 342, 349-350.) So, evidence about what the jurors stated, and their behavior, such as the timing and results of voting, disputes between jurors, jurors bringing evidence into the juror room, etc., is admissible. Evidence about the impact that various statements or conduct had on other jurors, or on the deliberations, is not. In Tapia v. Barker, (1984) 160 Cal.App.3d 761, 765, the juror affidavit noted, “I can’t remember the names of the people who said these things, but I do remember that it was said that he shouldn’t be awarded very much money because a Mexican wouldn’t know how to handle it, that these people shouldn’t be allowed to come up here and make big claims and then take the money back to Mexico, and that Mexican men are lazy and unfaithful.” This evidence was found to be properly introduced evidence of juror misconduct and an insidious discussion of race. Where the juror affidavit contains both admissible statements (e.g., those things that the juror heard) and inadmissible statements (such as subjective reasoning), the admissible portions will be considered by the court. (Lankster v. Alpha Betz Co. (1993) 15 Cal.App.4th 678, 681 fn. 1.) In addition to juror affidavits, don’t forget counsel’s declaration when necessary. If moving for mistrial on the basis of juror misconduct, a “no knowledge” declaration must be filed by counsel and the moving party, stating that he or she was ignorant of the jury misconduct before deliberations. (Weathers v. Kaiser Found. Hospitals (1971) 5 Cal.3d 98, 103.) This is only required if the misconduct is alleged to have occurred before the jury adjourned to deliberate. (Krouse v. Graham (1977) 19 Cal.3d 59, 82.) Additional technicalities The motion for a new trial shall be heard and determined by the judge who
Post-trial Motions continues 44 — The Advocate Magazine
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Post-trial Motions — continued
presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court. (§ 661.) As noted above, the court’s jurisdiction to rule upon the motion expires 60 days from the mailing of notice of entry of judgment by the clerk or a party. (§ 660.) If not determined within that period, it is denied by operation of law. (§ 660.) But “determined” does not mean the court merely stated its ruling at a hearing. It requires that either: 1.) The minute order is entered in the minutes with the ruling; or 2.) The formal order is signed by the judge and
46 — The Advocate Magazine
filed with the court. (§ 660.) The judge is required to prepare the statement of reasons including the grounds for granting the new trial. (§ 657.) It must be prepared by the court and not by counsel and may not merely state it is incorporating reasons set forth in moving papers. (Estate of Sheldon (1977) 75 Cal.App.3d 364, 370.) For purposes of appeal, I strongly suggest that you do whatever it takes to get the court to comply with this requirement (e.g., expediting and providing transcript of argument for the court to attach and incorporate in brief order, see Twedt v. Franklin (2003) 109 Cal.App.4th 413, 419). Otherwise, the burden of persuasion on appeal is shifted to the party who won a new trial. (Oakland Raiders v.
National Football League (2007) 41 Cal.4th 624, 641.)
Motion for JNOV
Procedurally, JNOV and new trial motions have similarities (e.g., timing) and may be concurrently filed seeking alternative relief. And, “if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time.” (§ 629.) But a crucial procedural difference between motions for JNOV and motions for new trial is that the motion for JNOV must include the memorandum of points and authorities at the time of filing (not 10 days later, as with a new trial motion). (§§ 1005, 1010.) Both a proposed order and a
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proposed judgment should be filed with the motion for JNOV. Substantively, where a jury verdict is not supported by the evidence presented at trial, the court should disregard the jury’s decision and enter a just verdict. (§ 629.) A motion for JNOV challenges the legal sufficiency of the opposing party’s evidence. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) “The court shall render a judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (§ 629.) The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict and should be granted if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 343.) The Court may grant a partial judgment notwithstanding the verdict, as JNOV motion has the same function as a motion for nonsuit or directed verdict. (Beavers vs. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 327.) A motion for a directed verdict is not a prerequisite to a JNOV motion. (Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 417; § 629.) The court may, following a defense verdict, order JNOV in plaintiff ’s favor on the issue of negligence and causation, and may order a new trial on the issue of damages. (Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal.App.2d 504, 515516.)
Motion to tax costs
Section 1033.5 provides costs that are allowable pursuant to Section 1032. A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of the mailing of notice of entry of judgment by the clerk. (CRC 3.1700(a)(1).) The prevailing party is not required to attach bills, invoices or other evidence supporting the costs being sought.
Costs are not apportioned in accordance with the jury’s apportionment of fault. (Smock v State of California (2006) 138 Cal.App.4th 883, 889.) Rather, they are recoverable by a prevailing party. (Ibid.) “Unless otherwise provided by statute, a ‘prevailing party’ is entitled to recover costs in any action or proceeding ‘as a matter of right.’ (§ 1032, subd. (b); see § 1033.5, subd. (a)(10)(A)-(C)…) ‘Prevailing party’ for purposes of section 1032(a)(4) is defined as including: ‘ the party with a net monetary recovery.” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1333.) A party opposing the prevailing party’s memorandum of costs may file and serve a motion to tax costs sought to be recovered by the prevailing party. (CRC 3.1700 (b)(1).) If the cost items appear to be reasonable and necessary on their face, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show that the costs are not allowable. (Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 774.) Once the party seeking to tax costs demonstrates that the costs are not reasonably necessary to conduct the litigation or reasonable in amount, the burden shifts to the party claiming those costs to establish their propriety. (Ibid.; see also Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624 [motion to tax costs rebuts presumption that costs are proper].) Once the moving party has met its burden of proof, the prevailing party must overcome the objections raised by supporting evidence. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Whether a cost item is reasonably necessary is a question of fact for the trial court. (Id. at p. 1266.) “Because the right to costs is governed by statute, a court has no discretion to award costs not statutorily authorized.) (Ladas, supra, 19 Cal.App.4th at p. 774.) Section 998(d) provides: “If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award ..., the
court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post-offer costs of the services of expert witnesses ..., in addition to plaintiff ’s costs.” Civil Code section 3291 similarly provides: “If the plaintiff makes an offer pursuant to Section ..., and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum ...” (In contrast, statutory costs are awarded pursuant to Section 1032 to the “prevailing party,” defined to have the “net monetary recovery.”) The party extending the statutory offer of compromise bears the burden of assuring the offer is drafted with sufficient precision to satisfy the requirements of Section 998. (Taing v. Johnson Scaffolding Co. (1992) 9 Cal.App.4th 579, 585; People Ex Rel. Lockyer v. Freemont General Corp. (2001) 89 Cal.App.4th 1260, 1267.) An offer of settlement must be certain, and when an offer is made jointly, the offeree must be able to evaluate the likelihood of each offeror receiving a more favorable verdict at trial. (Hurlbut v. Sonora Community Hospital (1989) 207 Cal.App.3d 388, 410.) To that end, a section 998 offer is construed strictly in favor of the party sought to be subjected to its operation. (Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 543.) Jill McDonell is a solo practitioner in Westwood. She provides consulting and contracting on complex projects such as appellate and dispositive briefing, and state and federal law and motion practice. She was named Appellate Lawyer of the Year 2012 by Consumer Attorneys of Los Angeles and one of Top 20 Lawyers under 40 in California by California, Daily Journal. She is an Emeritus member of the CAALA board of governors and education committee chair in 2010 and 2011; awarded the Consumer Attorneys of Los Angeles Presidential Award in 1997, 1998, 1999, 2000, 2010 and 2011; and Trial Lawyer of the Year Finalist 1997 from Trial Lawyers for Public Justice. DECEMBER 2013
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Th Norman Pine
Janet R. Gusdorff
Responding or replying to defendant’s post-trial motions Practical ideas and techniques for responding to opposing counsel’s briefs The trial is over. Then opposing counsel’s brief arrives in the mail. You vainly skim through defendants’ table of contents and introduction wondering what case they are talking about. Apparently, defendants unearthed many cases that appear to hold that everything your trial judge did was reversible error. As your sweat begins rolling, you wonder where to begin. This article offers some perspective and concrete suggestions.
How to read your opponent’s brief
Put on your appellate justice robes. Pretend that the only thing you know about the case is what was discussed in defendant’s opening brief (if you’re the plaintiff-respondent), or what was discussed in your opening brief and defendant’s respondent’s brief. Assume that the justice has not read your 13-volume trial transcript, or sifted through the volumes of motions and exhibits included in the appendix. The justice has no idea that defendant’s key witness kept fidgeting in his seat during your cross-examination. Things like that – which are so important in shaping the trial – are lost to justices reading the cold record. Ask yourself, what are the two or three major points defendants raised that the justices would want plaintiff to answer? For example, your internal justice may ponder: “The trial judge did refuse to instruct the jury on causation. How is that not prejudicial error?” Or perhaps, “Why aren’t these emotional distress damages excessive, given that there was no evidence that plaintiff ever sought psychological care?” Do not assume away the answer. It may seem obvious to you that a plaintiff does not need to seek professional psychological care to justify non-economic damages – especially given the powerful testimony from the plaintiff ’s wife and parents. But the justices (with their evernarrowing resources and exploding caseloads) may not be as familiar with those 48 — The Advocate Magazine
points as you are. You need to answer these questions that have been percolating in the justices’ brains since they began reading your opponent’s arguments. And the more important the point, the earlier you should address it. When you’ve identified the weaker points of your case, or the strongest points of defendants’ brief, you should address them head-on in your introduction. The sooner the justices know you have a persuasive response, the better. Likewise, you can also craft your factual discussion to lead your audience to the inferences you choose, and you can organize your arguments around the points of most interest to the justices. If you’re not sure what these points actually are, start by looking at the arguments defendants’ Introduction highlighted. Also, focus on any arguments they raise more than once, or crossreference/incorporate throughout their briefs. Additionally, pay attention to the length of treatment your opponent gives an issue. Appellate briefs are given limited word restrictions. How did your opponent “budget” its words?
A common trap
One common trap respondents fall into is wasting too much space responding to terse conclusory arguments or citations that defendants slip into their brief without really developing. You think: “I need more than two sentences to show how really bogus defendant’s claim is, because I need to distinguish their case and cite all these additional facts.” Do not fall into that trap. Instead, cite the caselaw that says conclusory or undeveloped points should be disregarded and add a quick fact or cite to undercut defendant’s conclusory argument. If you do much more, e.g., attempt a fuller discussion and rebuttal, you run the risk of “opening the door” for your opponent to really flesh out and develop their conclusory argument in the Reply Brief – one which you will not get to answer.
Another way to identify, focus, and hone your key rebuttal points is to outline your opponent’s arguments, and intersperse your responses. When you do this, you may find that you keep repeating certain points. That’s a good indication that those points are your key rebuttal points – worthy of being highlighted in your introduction, not merely in the argument portion of your brief. Conversely, you may find that there are a few issues or case holdings for which you have no response. By figuring out how to answer those questions, you can plan and organize your response before you begin writing and can pinpoint where your finite response time should be expended. How does your opponent organize its brief? Usually parties order their arguments in some logical sequence. Often parties lead with what they perceive is their strongest argument. But sometimes they organize the brief by category, e.g., separately discussing errors that could affect the jury’s determination of liability versus damages. Do not assume just because an argument is made mid-way through the brief, that it will not persuade the justices. However, paying attention to how your opponent organizes its brief can help you identify what issues your opponent feels are most favorable to it (and consequently, which issues you probably must answer). Similarly, consider how best to organize your own brief. Do not automatically respond to the arguments in the same order they’re presented. Of course, sometimes doing so is a good idea. The court can more easily put the briefs sideby-side and compare arguments (appellant says X, respondent addresses X and explains Y.) But sometimes, you improve your persuasiveness if you don’t parrot your opponent’s order. For instance, assume
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Responding — continued your opponent identifies a defective jury instruction. You may be able in good faith to advance a weak argument that the instruction was not defective. But you may have a much stronger argument that the alleged defect could not have amounted to reversible error. Under these circumstances, you may best preserve your credibility by assuming arguendo there was a defective instruction, but then showing why it could not have been prejudicial. There is another obvious case in which you will not want to follow your opponent’s order. Assume your opponent failed to preserve an issue by properly objecting at trial. You will probably want to ignore defendant’s organization and lead with your waiver/forfeiture argument.
Standard of review
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Before sifting through defendant’s brief to glean the most important rebuttal points, you should first pay careful attention to defendant’s articulation of the applicable standard of review. This is key because appellate justices review briefs through different lenses, depending on which standard(s) applies. Never rely on your opponent’s discussion about which standard of review governs your case. Because the controlling standard will often make or break your chances of prevailing on appeal, you need to independently assess the correct standard, and then make sure your opponents accurately state it and – equally important – actually adhere to it. Beware of defendants who correctly cite the substantial evidence standard, but nevertheless present their version of the conflicting evidence (rather than the version that favors the respondent) and draw inferences in their favor rather than the opposite. Defendants sometimes get away with such tactics, but their chances of succeeding will be reduced if you play the role of policeman as you should. Is your opponent citing testimony that is different than you remember? For important points, always go back to the trial transcript and read not only the
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exact words, but also the context of the statement. Oftentimes, you’ll find that your opponent did not cite the testimony that explains, clarifies or neutralizes the negative testimony. Or, that a few pages later, the witness said something that rebuts or undercuts the passage your opponent cited.
Watch your style
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Do not feel trapped by your opposition’s style. Do not automatically refer to the parties the same way your opponent does. Obviously, the Court of Appeal will not reverse or uphold a judgment based on the way the briefs label the parties. But as humans, subconsciously, we don’t feel as connected to “plaintiff ” or “appellant” as we do to Ms. Doe, Jane Doe, or even Jane. And use of names, not legal labels, makes the brief more readable. Defendants cite numerous cases. How do you figure out which ones are worthy of full analysis, brief rebuttal, or neither? These thoughts may help resolve those issues. Citations to cases usually fall within two categories: (1) those that create a framework for analysis (e.g., citation for the elements of wrongful termination, standard of review) and (2) points of persuasion (e.g., authority that supports a party’s argument). Unless defendants somehow mischaracterize the elements of a claim, or cite the wrong test to analyze your facts, etc., your rebuttal of their cases should focus on the second category. Check their table of authorities. If a case is mentioned “passim” or at least cited on many pages, odds are good that you’ll want to read it in full and distinguish it. If their description of the holding or the case makes your heart skip a beat, you absolutely must address it head-on. But first, take a deep breath and keep reading.
Avoiding the impact of negative authority
As Inigo Montoya famously schools Vizzini in The Princess Bride (1987): “You keep using that word. I do not think it means what you think it means.” Do not assume your opponents’ case summary or citation means what they say it means, 52 — The Advocate Magazine
or stands for the proposition they claim. It often does not. We have lost track of the number of times we have read through a case defendant has cited, only to find that not only did our opponent ignore the unique context from which its selected passage came, but that the thrust of the opinion actually stood for the opposite proposition. Whenever possible, use defendants’ citations against them. Often, the key to distinguishing your opponent’s case is within that very case. Once you have identified which cases defendants rely upon, it is not sufficient to merely check their citation and read a paragraph or two before and after the portion they quoted. Read the entire case. Or, at a minimum, read the introduction, factual statement, and the entire legal analysis on the given point. Hone into how the court reached its decision. What facts did it highlight in its analysis? What underlying principles did the court find persuasive? The more you understand how the court reached its decision, the easier it will be to argue that the unique circumstances of your case distinguish it. Sometimes you’ll find that the court did not engage in any analysis of the issue at all. Instead, it simply lifted a rule from another case, repeated it, and moved on to the pertinent issue in the case (one that might be totally irrelevant to your appeal). Make sure that you go back to the original case, evaluate how that court reached its decision, and explain why that reasoning or analysis does not apply to your case. Once you highlight the fallacies with the original case, or distinguish its applicability, you can quickly tell the court that the subsequent cases add no additional analysis and are, therefore, distinguishable for the same reasons. This is most common when defendants cite case after case, alleging that each supports their claim. Use your judgment, but be wary of the laundry-list-ofcases technique. If there is a general, undisputable principle, like the elements of negligence, your opponent will probably not waste words citing numerous cases for that obvious point. If, on the
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other hand, your opponent cites numerous cases that purportedly hold that what your trial court ruled was error, be skeptical. The more cases defendants cite, the less likely all of those cases are to be on
point. Even less likely is that the cases will have analyzed and considered the issue. If the authority was fully analyzed and appears to apply, avoid the tempta-
tion to argue that the case was wrongly decided (unless it really was). It is easier to convince the court that your case is distinguishable from an existing case, than that the existing authority was wrongly decided. In part, this is a function of judicial comity. In law school, we discuss the famous decisions that pushed and expanded existing (or created new) law. We honor the courageous justices who stood up and said – “This is wrong and must be fixed.” In real-world practice, however, such confrontation is something you ordinarily want to avoid like the plague in your briefs. Don’t make your justices feel like they have to be activists to rule in your favor. Don’t make them have to consider the potentially widespread impact that overturning an existing line of cases could have. So, for example, you can acknowledge that Jones v. Smith held X and that you do not disagree with that principle in theory, or as applied to the circumstances in Jones, but it has no application to your case. And then tell the court why that is. It is much easier for the court to choose not to extend the law to your case than it is to reject preexisting law or create new law. It happens, but only when truly necessary.
How to successfully “borrow” law
Now that you are comfortable about distinguishing your opponent’s law, you need to be able to advance your own. The problem is, however, you can’t find any cases directly on point. You find a case that resonates with you, but it arises in some other context, or even in some other unrelated practice area (such as criminal law). To successfully analogize a case, you must tell the court why your proposed authority is similar to your case. What you think may seem obvious may not be so clear to the court as Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 619 illustrates. [“Unilogic provides no explanation as to why these cases are analogous or useful here; we find them to be neither”]. The lesson to be drawn from this case is that it is not enough to 56 — The Advocate Magazine
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call the appellate court’s attention to “analogous” cases and discuss them. Your analysis should also explain why those cases are similar to your case, and why the court should find them persuasive.
Unilogic also teaches another lesson – when possible, analogize to a broader, more general principle, and bolster your “authority” with secondary sources. Faced with “scant authority” on the specific sub-
ject before it (i.e., whether the equitable defense of unclean hands was available against plaintiff ’s legal claim for conversion), the Unilogic court looked at a case that stood for a more general principle (i.e., that the unclean hands doctrine is not confined to equitable actions, but is also available in legal actions). The court specifically noted that the general principle was cited with approval in other cases, as well as secondary sources, including Witkin and Cal. Jurisprudence 3d. When possible, one should strive to tie the borrowed law to relevant and applicable public policy. After criticizing Unilogic for its failure to explain its citation to purportedly analogous cases, the court noted that Unilogic “has not provided us with any reason, based on policy or otherwise, for holding that the unclean hands defense is never available in a legal action for conversion.” (10 Cal.App.4th at 620, our emphasis.)
Distinguishing your case
When analogizing to cases, your success is more likely based on similarity of underlying principles or policy than on specific facts. Conversely, distinguishing cases on their facts is almost always possible (and is a better approach than not distinguishing your opponent’s authority), but distinguishing them on distinct public-policy issues will usually be more persuasive. Consider, as example, employment law. Comparing different cases is rarely helpful because “[r]etaliation cases are inherently fact specific, and the impact of an employer’s action in a particular case must be evaluated in context.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) Employment law jurisprudence also illustrates why policy considerations are more persuasive than facts. In Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, the California Supreme Court had to answer whether individuals (as distinguished from employers) could be held personally liable for retaliation. In large part, the Court’s analysis adopted its reasoning from Reno v. Baird 58 — The Advocate Magazine
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(1998) 18 Cal.4th 640, a case that had addressed individual liability for discrimination. The Court emphasized that Reno’s rationale applied to the retaliation issue, and it distinguished the public policy underlying individual liability for harassment. (Torrey Pines, 42 Cal.4th at 1164-1165.) Occasionally, the Court of Appeal will adopt principles and law from other seemingly unrelated areas of law. The key to convincing the court to draw from other substantive law may depend upon tying the two areas together in their fundamentals. For a clear example, consider Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, a summary judgment appeal largely turning on the landlord’s knowledge of the tenant’s dogs’ vicious propensities. The court borrowed the criminal law
principle that a false exculpatory statement is evidence of a guilty conscience. In doing so, the court examined the “underlying principle,” i.e., that a false statement is evidence of the declarant’s state of mind and demonstrates his knowledge he has committed a wrong. (34 Cal.App.4th at 1841.) The court also focused on the underlying logic – that from this consciousness of guilt the jury is entitled to infer other facts bearing on the defendant’s guilt – and concluded that the “logic of this principle applies as much in civil cases as it does in criminal prosecutions.” (34 Cal.App.4th at 1841.)
Borrowing federal law
There are a variety of circumstances under which California courts borrow law
from federal courts interpreting analogous statutes. One clear example of this is California employment cases under the Fair Employment Housing Act, borrowing from federal cases decided under Title VII when the statutory language is the same. Borrowing federal law can also help dispel concerns that the courts may have in extending the existing law or creating new law. Where, for example, there is established federal authority on a point, and that authority has proved workable, the state court may take comfort in the knowledge that adopting the approach/ law/rule will not create more problems or confusion than it solves. Justice Moreno’s concurring opinion in Reynolds v. Bement (2005) 36 Cal.4th 1075, 1094-1095
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Responding — continued
makes this point when discussing the limited circumstances under which individuals may be held liable under the FLSA. In urging California’s Legislature to modify Labor Code section 1194 to authorize such actions against individuals (as well as employers), he cited the federal counterpart to that statute and noted that it “is neither a novel nor an untested remedy.” (36 Cal.4th at 1094 (conc. opn. of Moreno, J.).) In these types of circumstances, where California does not have authority on-point, research whether a similar federal rule or test has proved workable. If you can show the court that, for instance, another jurisdiction or a federal court has proved to be a successful test market, you will more easily convince the California court to extend the law
62 — The Advocate Magazine
because there is a workable version upon which they may comfortably rely.
Responding to your opponent’s brief does not have to be as complicated or scary as it may at first seem. Relax. Take a deep breath. Try following some of the suggestions contained herein. You may be pleasantly surprised with the results. Norman Pine, a Certified Appellate Law Specialist (SBLS), handles civil appeals on behalf of plaintiffs. He has been voted as one of the Super Lawyers in Appellate Law (Southern California), and selected in Southern California’s “Top 100” Super Lawyers (2009-2013, inclusive). Best Lawyers in America recognized him in appellate law in both 2013 and 2014. Norm was
also honored as CAALA’s 2003 “Appellate Lawyer of the Year.” He is Associate Editor of Advocate. He served as Note and Comment Editor of the California Law Review (Boalt Hall). Janet R. Gusdorff is an associate with the AV-rated firm, Pine & Pine, in Sherman Oaks, CA. She focuses her practice exclusively on civil appeals in both state and federal courts. She has been selected to Super Lawyers’ 2012 and 2013 Southern California Rising Stars list. She is also licensed to practice in New York and New Jersey. She graduated from Loyola Law School, where she served as Note and Comment Editor on the Loyola Law Review. Her professional affiliations include CAALA, CAOC, CELA, LACBA and WLALA.
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Your jury instructions on appeal There are few appellate issues that command as much scrutiny as instructional error During trial, few proceedings are more solemn or important than the giving of jury instructions. Like Moses on Mt. Sinai, the judge hands down the law that the jurors must apply to the evidence they have just heard and seen. But unlike the Ten Commandments, jury instructions can be complicated. And if those instructions are inaccurate, incomplete or incomprehensible, the jury’s verdict is tainted by a misapplication of the law – a fundamental and potentially reversible error on appeal. Thus we need to think outside the jury box while choosing, drafting, offering and arguing jury instructions. Trial attorneys often focus on the most obvious and immediate goal: stating the law in a manner most favorable to their client’s case. But there is another potential audience that we need to keep in mind: the Court of Appeal. There are few appellate issues that command as much scrutiny as instructional error (and its cousin, erroneous verdict forms, discussed in the accompanying sidebar.) Appellate courts, at least in the State court system, apply a rigorous standard of review to smoke out prejudicial instructional error, and such errors are among the most common bases for reversal. And for that reason, instructional-error issues comprise fertile ground or quicksand for appellate counsel – depending on which side of the verdict they represent. What follows is a brief primer for trial counsel on avoiding your own instructional errors, and preserving those of your opponent. 64 — The Advocate Magazine
Appellate scrutiny of instructional error
Jury instructions are a matter of right. Each party is entitled, upon request, to correct, non-argumentative instructions on every theory of the case advanced by him that is supported by substantial evidence (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572). Further, the appellate court reviews de novo the issue of whether a party was entitled to an instruction, or whether an instruction that was given was a correct statement of the law as it applies to the facts and theories of a particular case (People v. Berryman (1993) 6 Cal.4th 1048, 1089). In considering whether an instruction was improperly refused, the appellate court views the evidence in the light most favorable to the appellant and assumes “that the jury might have believed the evidence upon which the instruction favorable to the appellant was predicated.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 536). As favorable as these factors are to the appealing party, there is more. Instructional error invokes a daunting review for prejudice that can leave the respondent, who is defending the verdict, sweating bullets. Once instructional error is established, the appellate court undertakes a comprehensive review of the trial proceedings to determine whether the error was prejudicial, i.e., whether it is “reasonably probable” that the error “prejudicially affected the verdict.” This review includes an evaluation of (1) the state of
the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled, including the closeness of the jury’s vote (Soule v. Gen. Motors Corp. 8 Cal.4th at pp. 580581.) Further, this “reasonably probable” standard is met if there is a reasonable chance that the jury would have reached a different result had it been provided the correct instruction more than an abstract possibility. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682). This relatively low standard for demonstrating prejudice helps explain why jury instruction error is one of the most common bases for reversal of jury verdicts in the state Courts of Appeal. In the 9th Circuit, however, the standards for instructional error are less generous to the appellant. A district court’s formulation of jury instructions is reviewed for an abuse of discretion, unless the issue is whether the trial court misstated the elements that must be proved at trial, which is reviewed de novo as a question of law (Ostad v. Oregon Health Sciences University (9th Cir. 2003) 327 F.3d 876, 883.) If the instruction was erroneous, the Ninth Circuit applies a standard “harmless error” analysis to determine if the error was prejudicial. (Tritchler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154.)
Tips for avoiding instructional error
First and foremost, you should very, very carefully draft your own set of proposed instructions that accord with your
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theory of the litigation; the court has no duty to instruct on its own motion. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.) That means, inter alia, drafting instructions early and often, reviewing and revising as discovery proceeds and, especially, as the trial evidence comes in. In drafting your instructions, you certainly should adopt CACI forms; indeed, the Rules of Court encourage you to do so. (Rule 2.1050(e).) But a CACI form does not carry the imprimatur of a rule of law, and does not bind an appellate court to the statement of the law in the instruction. See Rule of Court 2.1050(b): “The articulation and interpretation of California law, however, remains within the purview of the Legislature and
66 — The Advocate Magazine
the courts of review.” (See, e.g., Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303 [finding that CACI No. 3704, which defines the factors that jurors consider in deciding whether someone is an employee or an independent contractor, provided an erroneous statement of the law, and reversing on that basis]; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1230 [criticizing a CACI instruction on retaliation claims under FEHA].) So you must carefully review and think through the CACI forms and make an independent assessment of whether the form instruction correctly states the law as applied to your client’s claims. Bear in mind that there is no rule against proposing or adapting an old BAJI instruction, or writing a new one from
scratch, if it fits the bill and the CACI instruction is insufficient. If you do draft a special instruction, it must be accompanied by citations to supporting legal authority (Rule of Court 2.1055(d)), and it should be non-argumentative and simple but accurate. Asking for a proposed instruction that aggressively states the law in your favor may be asking for trouble later. Equally important, make sure that your proposed instruction is supported by substantial evidence. A jury verdict based on an instruction that is not supported by the evidence is ripe for reversal. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875876).
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Jury Instructions — continued This principle applies to the instructions proposed by your opponent as well. Successfully objecting to a proper instruction proposed by the defendant – one that is supported by their theory of the case and evidence – can lead to trouble at the Court of Appeal. All parties are entitled to have the jury instructed on their particular theory of the case, as long as the instruction is “reasonable and finds support in the pleadings and evidence or any inference which may properly be drawn from the evidence.” (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 744.) Depriving your opponent of an instruction that sets forth a theory of their case may make for a short-term victory.
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Of course, you do want to preserve for your own possible appeal any adverse erroneous instruction, whether given by the trial court sua sponte or at the request of the opposing party. The standards for preserving such errors, however, contain numerous trapdoors, and care and attention is required to avoid waiver. First and foremost, do not be lulled by section 647 of the Code of Civil Procedure into believing that all instructional errors are automatically preserved for appeal without the necessity of an objection. That section states that “giving an instruction, refusing to give an instruction, or modifying an instruction requested” is “deemed excepted” for appeal purpose, and appellate courts will sometimes rule that a party may challenge an erroneous instruction without objecting at trial. (See, e.g., Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, 7.) But whether that section will automatically preserve the instructional error in your particular case depends on the nature of assigned error and other criteria, such that the exceptions swallow the rule. For example, if the instruction is correct as a matter of law
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but the appellant contends that it is “too general, lacks clarity or is incomplete,” failure to object and to offer a clarifying instruction, waives the error. You can also waive the instructional error by proposing or stipulating to the instruction. Thus jointly drafting and submitting the instruction with opposing counsel; failing to object to the court’s response to questions from the jury; and failing to request any instruction at all on one of the legal theories that the jury should have considered, are all common examples of “invite error.” (Reilly v. Inquest Technology Inc. (2013) 218 Cal.App.4th 536, 552; Transport Insurance Co, v. TIG Insurance Co. (2012) 202 Cal.App.4th 984, 1000.) Equally fatal to an appellate claim of instructional error is an inadequate record that does not clearly show how the erroneous instruction came about. If the appellate record fails to identify which party requested the challenged instruction, the appellate court will presume that it was given at appellant’s request (!) and find the error invited (Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 559.)
If that presumption is not harsh enough, consider the rule that where an appellant contends that the trial court erroneously refused to give a proper instruction, the appellant must affirmatively demonstrate that the instruction was actually rejected, and not withdrawn or “lost in the shuffle” of the paperwork at trial. Absent such a showing, the appellate court will presume that the omitted instruction was withdrawn by the appellant – and any error was thereby invited. (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 312.)
Preserving the instructional error for appellate review
Avoiding these trapdoors requires organization, diligence and common sense, tied together by remembering that beyond the jury box there is, potentially, an appellate audience looking over your shoulder at the instructions. Here are some ideas on how to do so: • You must create a clear record of which party requested the instructions, and whether they were refused, given as requested, or given as modified, or withdrawn (as required by Rule of Court
2.1055(b)). Using commercially obtainable forms that provide that information is a great tool, as long as the judge correctly completes them and there is a full set of those actual forms file-stamped and in the record. If the judge makes handwritten changes to the proposed instructions, ask that he clarify in writing whether those modifications are sua sponte or in accordance with the position of one of the parties. • Make sure that you file (and obtain a file-stamped copy of) the original set of your proposed instructions – both form and specials. Try to do the same with any last-minute proposals. • Make a record of all rulings on instructions, including those that are made in chambers. If there is a chambers’ conference on the proposed instruction, try to get the court reporter in to record the proceedings. If that fails, when court recommences ask to make a record of the rulings before the jury returns, and if the judge resists, push hard. Your client’s case may be at stake! • If your concern is that an instruction is correct as a matter of law but is too
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Verdict form confusion: Generals, specials and hybrids Avoiding or preserving jury instruction error requires both an understanding of the rules and great diligence during the heat of trial. Equally fraught with risk and opportunity, and equally complex, are the rules for appellate review of jury verdict forms. General verdicts and special verdicts garner different levels of appellate scrutiny, and it is not always obvious what type of verdict form is at issue. There are three types of verdict forms: a general verdict; a general verdict with special findings; and a special verdict. (Code Civ. Proc., §§ 624, 625.) (All citations are to the Code of Civil Procedure.) A general verdict form simply asks the jury to generally find in favor of the plaintiff or defendant, and if for the plaintiff, to set forth an amount of damages. (§ 624.) A simple example: We, the jury in the above-entitled action, find for the [plaintiff or defendant] and against the [plaintiff or defendant] and assess damages in the sum of $[ ]. Note, however, that in all cases where punitive damages are awarded, even a general verdict form must separately identify the punitive and the general damages. (§ 625). In reviewing a general verdict, the appellate court infers that the jury made all necessary findings in favor of the prevailing party. Further, where there are several causes of action, a general verdict will be sustained if the evidence supports it on any one theory, even if the causes of action are inconsistent, such as negligence and intentional tort (Codekas v. Dyna-Lift Co. (1975) 48 Cal.App.3d 20, 24-25.) Whether this is the preferred standard of appellate review depends, of course, on whether you are defending or attacking the verdict. A special verdict form is a wholly different animal on appeal. A special verdict is defined by statute as one where the jury finds the facts only, leaving the judgment to the Court: The special verdict must present the conclusions of fact as established by the evidence, and not the evidence to prove them; and those conclusions of fact must be so presented as that nothing shall remain to the Court but to draw from them conclusions of law. (§ 624.) In contrast to review of a general verdict, if the jury returns a special verdict, the reviewing court will not infer findings to support the verdict (Zagami Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) Thus if there is an inconsistency in the special verdict findings, there is no presumption in favor of upholding the special verdict, and the correctness of the verdict is reviewed as a matter of law (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.)
72 — The Advocate Magazine
For example, if a jury awards a certain amount of damages on a breach of contract claim, and a different amount for a common counts’ claim, the special verdict on both questions are equally against the law (Zagami Inc. v. James A. Crone, Inc., 160 Cal.App.4th at 1092). However, in order to preserve an inconsistent special verdict for appellate review, the appealing party must object to the verdict before the discharge of the jury, and allow the trial judge to interpret the verdict with consideration of the pleadings, evidence, and instructions (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-57.) A satisfactory explanation of the verdict is sufficient to uphold it (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705.) The third type of verdict form is a hybrid: the general verdict accompanied by special findings. Section 625 says that the court may instruct the jury, if they render a general verdict, “to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon.” If such a hybrid form is used, the question on appeal may be whether the special findings conflict with the general verdict; if they do, the special findings will prevail. (Zabaglione v. Billings (1993) 4 Cal.4th 1150, 1156.) Further complicating matters, it is not always obvious whether the verdict form is a true special verdict, or a general verdict accompanied by special findings. The determination is not controlled by the label attached to the form. Where the verdict does not merely ask the jury to find the facts, but instead calls for the jury to find for or against the plaintiff on a particular claim or group of claims, the verdict is a general verdict even if denominated a “Special Verdict” (Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1409 at fn. 1.) Special verdict forms, or general verdicts with special findings, are useful for complex cases. But they must be drafted with great care so to avoid confusion and the possibility of inconsistent findings or other errors. Some drafting tips for special verdict questions: • Each plaintiff and each defendant should be listed separately with a full set of questions for each party. • The questions should separately identify each cause of action that the jury is considering. • The special finding questions should track each element of the various claims and defenses for each cause of action, and accurately track the jury instructions; and, • The special findings should separately identify each type of damages being requested. — Herb Fox
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Jury Instructions — continued general, is not clearly written or is incomplete, be sure to object and to also offer the court (and file!) a corrected version of the instruction. • If the court refuses to give a proposed instruction, object on the record and, if necessary, make an offer of proof as to that evidence that supports the instruction. If you anticipate the problem early enough, bring and file a “pocket brief ” that sets forth the issue. • If you engage in meet-and-confers with opposing counsel over disputed instructions, make sure to create an oral record of any lingering objections or disagreements, and clearly identify which party is withdrawing or modifying a proposed instruction; and, • Do not waive the reporting of the reading of the instructions, and follow along with the printed final set to make sure that the court reads them correctly. Speak up if the judge blunders! An erroneous jury instruction can help you snatch appellate victory after trial court defeat. But it has the same potential for your opponent, and many would-be lucrative verdicts have fallen by the wayside because of a prejudicially erroneous instruction. Plan well and prosper. Herb Fox is a Certified Appellate Law Specialist handling civil appeals and writs throughout California. He was appellate counsel in Harris v. Sandro (2002) 96 Cal.App.4th 1310 and Parker v. McCaw (2005) 125 Cal.App.4th 1495, decisions vacating arbitration awards. He can be contacted at email@example.com.
74 — The Advocate Magazine
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PHONE: 800-522-7965 • 213-977-0211 • FACSIMILE: 213-481-1554 www.girardikeese.com
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Challenges in establishing loss of earning capacity Determining loss of earning capacity involves more than taking past earnings and multiplying for future months and years Three unique challenges can confront plaintiff attorneys in determining an injured worker’s loss of earning capacity: • A premature or uncertain earnings history • Self-employment, allowable deductions and low net income • Extenuating circumstances such as the economic downturn It is important to differentiate between lost earnings and loss of earning capacity, as California appellate decisions have repeatedly enunciated. (See, e.g., Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335.) The unpublished decision in Hooper v. Capobianco (2004) 2004 LEXIS 5001 summarizes the applicable rule: Lost earning capacity is inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury. Indeed a person may recover for lost earning capacity even if the person was not gainfully employed at the time of the injury. If one does not work every day or all the time, damages may be estimated upon the injured person’s capacity to earn money, rather than upon what they were either earning or had actually earned.
Education and Earnings: http://www.bls.gov/opub/ee/ (Table B-2) Age Range 25-34
Premature or uncertain earnings history
Injured workers in their twenties and thirties often lack an established earnings’ history that reflects true career maturity. Many are found to be progressing from semi-skilled work into journeyman-type skillsets, and as such, to baseline their earnings level prematurely would be to dramatically undervalue the economic impact of their disabling injuries. Thus, it is vital that age-earning factors be taken into account in determining whether a worker is still transitioning in their career growth. For example, the average carpenter in Los Angeles (10,680 workers) earns $25.02 per hour, or $52,040 annually. If an injured carpenter, age 32, earned only $18 per
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76 — The Advocate Magazine
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Because Verdicts are News Essential Online Verdict Reports
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Report your verdicts Unlike traditional weekly or monthly verdict reporters, we will send a verdict alert as soon as practical. It’s a 24-hour news cycle. Why should verdicts be any different? Starting today, promptly report your verdicts to us — it’s not news a week after it happens. Reporting forms are on the Web site: www.juryverdictalert.com. You can also submit older verdicts to be included in our online database but not announced with an alert.
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Challenges — continued
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hour, then, but for his injuries, it is likely that his earning capacity would have advanced from $37,440 to the weighted average carpenter income over several years. To avoid the common mistake of undervaluing the base income and, as a consequence, the totality of the worklife earnings, it is necessary to personalize vocational assessments. Certainly, the standards of foundation, reasonability and accuracy face attorneys when presenting a damages’ claim. Still, it is possible to become so enamored with employer records and tax returns that one fails to see the forest for the trees. Tax returns offer hard data, but age-earnings analysis takes into account the worker’s capacity to build on, and better, their earning capacity. It is a fair axiom that every worker aspires to earn more money, and will employ whatever means they have to make that happen. This assumption proves itself out in Employment and Earnings tables produced by the Bureau of Labor Statistics that show definite income hikes for all education levels by age ranges from 25 to 34, 35 to 44, and 45 to 54. (See charts on page 76). Age-earnings factors reflect a worker’s gains in knowledge, experience and seniority on the job, as well as promotions and increased productivity. In other words, it is often the case that with time, attorneys become partners, workers become managers, etc., making the case that the 32-year-old journeyman carpenter may indeed have advanced to become a working foreman earning $35.85 per hour, or $74,570 annually (based on 7,330 workers in L.A.). With past employer performance reviews and endorsements, this scenario could fall within the realm of vocational probability as a second alternative. To overlook this probable scenario would be to shirk more than $600,000 in damages. Clearly, if a worker has been employed by the same company for a number of years, this may serve to corroborate their baseline earning capacity, absent any anticipated promotions, etc. Still, it is difficult to establish
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Challenges — continued statistical reliability for a future pattern based on even five data points, which is essentially what a five-year earnings history provides. Thus, an irregular earnings record further promotes the efficacy of utilizing industry-wide wage rates, given their standardized reliability, rather than merely reflecting, for example, premature income levels.
Self-employment, allowable deductions and low net income
Another frequently seen challenge to establishing earning capacity occurs with self-employed workers. Small business owners are permitted allowable deductions, including rent payments for home offices, car and office expenses, meals, cell phone costs, etc., all of which effectively diminish their overall net income, and as a consequence, tax burden. However, if they fall prey to injury or death, it is often the case that defense attorneys will ardently point to their net income line as the presumptive yardstick for their earnings level. To argue differently, they say, is to support a non-tax-paying double-dealer with secondary gain aims. The question comes back to whether the courts deem a loss of earnings, or a loss of earning capacity assessment, to be paramount to ascertaining the true damages of the injured worker. Because the latter has passed the reasonability sniff test, it is within the purview of the vocational economic expert to reassess the tax deductions, differentiating those expenses that are not recouped by the business owner from those that are. Moreover, even in this instance, nothing prohibits additional scenarios from being added to depict the injured worker’s damages were he an employee rather than a business owner. For example, say the carpenter owned a small framing company showing a net income of $22,000 due to the allowable deductions. Scenarios could also reasonably and conservatively be offered portraying his earning capacity as an employed carpenter at $52,040, and/or a first-line construction supervisor at $74,570.
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Challenges — continued
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There are various circumstances in the short-term that can impact a worker’s baseline earnings levels. For example, stay-at-home moms routinely sacrifice working in the competitive labor force in order to prioritize rearing their children. Other workers stay at poorly paying jobs in order to pay the bills, attend night school, or wait to be inspired as to what career path they will yet choose. Some established workers can, and have been, dislodged from former earning levels due to the downturned economy. Our noted carpenter may have been working parttime, job to job, because of the slowed housing market, and as such, realized $20,000 to $25,000 in income rather than $52,040. These are but a few of the many reasons a worker’s income can see short-term shortfalls. However, things turn around, housing sales pick up, workers retool and expand their skillsets, and once again people find a way. While a part-time construction worker cannot be immediately projected to earn an unencumbered income, a fair-minded and conservative approach can be applied in transitioning them back to full employment with the commensurate compensation.
Conclusion It is vital that the loss-of-earningcapacity assessment not be limited merely to a lost-earnings calculation. Rather, foun-
dation, reasonability and accuracy can be established in assessing a worker’s earning capacity, not just at the date of injury, but as they would have matured with time. Ageearnings evaluations take into account the realities that workers apply what wits, means and energy they have to improve their station in life. However, when disabling injuries leave workers (e.g., carpenters) with permanent impairments and limitations to sedentary type work, they need a fair appraisal of their loss of earning capacity performed. While there are various components that play into conducting such assessments, such as wage growth and discount rates, fringe benefits, tax considerations, or worklife expectancy, it is vital that these factors not overshadow the age earnings assumptions. Even experienced evaluators can commit errors and omissions by using boilerplate calculations without giving due consideration to the injured worker’s aspirations, attributes and anticipated career maturation. In a thorough analysis, educational background as well as continuing educational goals must be taken into account. Moreover, the age-earnings approach will mesh a worker’s past work history with the transitional steps necessary for them “coming into their prime.” In the end, the vocational evaluator can lay out a reasonable foundation for determining the economic damages that arise out of an injury. David Orlowski has served as a vocational economic consultant and expert witness for 24 years. He can be reached at 602-549-0979.
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Holly N. Boyer
An appellate lawyer’s tips for trial lawyers The only thing that matters on appeal is what is in the record During law school, I could not wait to take the bar and become a real lawyer; deposing witnesses, negotiating highstakes settlements and the ultimate dream – giving closing statements where jurors are brought to tears and overwhelmed with empathy for my client. Despite my Atticus Finch daydreams, I became an appellate lawyer. Most days, I sit in my office, read the law, and write briefs all day. Sometimes I will go hours without even talking to another person, engulfed in a brief. While some may cringe at the thought of sitting at a desk, hours on end, crafting the perfect opening line to grab the attention of the Supreme Court, I marvel in it. I love reviewing the record; picturing the witnesses on cross-examination, a heated discussion between counsel concerning the exclusion of evidence and the faces of the jurors when key evidence is revealed. I’m sure that my fantasies are much more exciting than real life, or maybe not? The point is – similar to an appellate court, I am left with only the record to tell the story of the case. And more importantly,
only the record to reveal the error that justifies reversal. From this perspective, an appellate perspective, I offer the following tips to those Atticus Finches of the plaintiff ’s bar:
Make a record
The only thing that matters on appeal is what is in the record. The record consists of those pleadings, motions and other documents actually filed in the trial court, along with transcripts from any court proceedings. While counsel is often quick to give the real story of what actually happened in a case, or the juicy facts that came out in discovery but were later excluded in trial, the only thing that is going to matter to the court of appeal is what is in the record. The court of appeal likes to reference the “three immutable rules” for appellate practitioners: “[F]irst, take great care to prepare a complete record second, if it is not in 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.) With the recent budget constraints, it is even more imperative to ensure the presence of a court reporter at all significant hearings. If you think something important may be addressed at a hearing – make sure there is a court reporter present. Appellate courts may refuse to reach the merits of an issue for a party’s failure to submit a reporter’s transcript. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and minor consented to informal adjudication]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [order denying preliminary injunction dissolution affirmed based on lack of reporter’s transcript].) Likewise, while sidebars and conferences in the judge’s chambers regarding jury instructions or motions in limine
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may be commonplace during a trial, always make sure a court reporter is present to capture what is said. If a reporter is not present, make your record of what transpired once trial resumes and a court reporter is available.
Be sure the written transcript reflects the story of the case
Since the court of appeal has only the written record to review, make sure the record best reflects what actually transpired in the courtroom. Witnesses may gesture with their hands or rely on an inflection in their voice to signal a particular temperament in response to a question. But on paper, none of that translates. Ask follow-up questions or reference specific words to elaborate and clarify the testimony. It has been suggested that trial counsel should imagine the jury is blind – making sure to describe in words everything that goes on in the courtroom. This is also true when considering the use of computers, trial software and video monitors in the courtroom. While to those in the courtroom, such devices may be useful to display a timeline of events during the testimony of a key witness, or perhaps zooming in on one sentence on the back of a medicine bottle in a defective drug case, the benefits of these high-tech devices are lost in translation. Always keep in mind that the court of appeal will only have the cold record to review – and thus the necessity for explanation, even as to trial gadgets and gizmos is critical. This also applies to video clips which are often used in trial. Court reporters may stop typing once a video clip is played and the record will reflect only “[deposition excerpt played].” Consider arranging beforehand to have the reporter transcribe the video or perhaps all parties can agree to put all video clips shown at trial on a CD and submit the CD as an exhibit at the end of trial. Whatever method you choose – the bottom line is to ensure that the story told in the courtroom is the story relayed in the record before the court of appeal.
Make objections count When the court refuses to permit you to present certain evidence or, sometimes worse, allows inadmissible or preju-
dicial evidence against your client to be introduced at trial, you do as any other learned counsel would do: object. But, it is not enough to simply object. You must state specific grounds for your objection.
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Tips — continued
The “failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cogniz-
able.” (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) Further, an objection made on one ground does not preserve
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other grounds for appellate review. (People v. Williams (2013) 56 Cal.4th 165, 193 [“leading and argumentative” objection did not preserve ground that prosecutor’s questioning amounted to improper vouching for witness]; SCI Calif. Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 564-565 [objections made before and during trial that testimony was irrelevant and speculative did not preserve contention on appeal that witness applied legally improper methodology for property valuation].) Also keep in mind that when a trial court excludes evidence, the party who offered the evidence must make an “offer of proof ” to avoid waiving the right to a new trial or an appeal based on the erroneous exclusion of that evidence. (Evid. Code, § 354 (a).) An offer of proof is a statement that explains the “substance, purpose, and relevance” of the excluded evidence. If your case ends up on appeal, the court of appeal may need the offer to determine not just whether error occurred but also whether any error was prejudicial. If the excluded evidence is a witness’s testimony, consider asking the court to permit you to question the witness outside the presence of the jury. Getting it in the witness’s own words may be much more effective on appeal. And while there are a few exceptions to the requirement for an offer of proof, do not assume that they will apply to your case. Better to be safe than sorry.
Define your case.
Keep track of jury instructions
Jury instructions should be thought out, organized and easily identifiable in the record. Keeping track and documenting your proposed instructions and objections may absolutely affect how successful you will be in attacking or defending the verdict on appeal. If the record does not show which party requested an erroneous instruction, the reviewing court must presume that the appellant requested the instruction and therefore cannot complain of error. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846.) Likewise, if the record is silent on
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whether an instruction was refused by the court or withdrawn, the reviewing court must presume that the appellant withdrew the instruction. (Bullock v. Phillip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 679.) Also, while instructions may be modified in handwriting, unless the record shows who asked for what changes, the modifications will be attributed to the appellant. To avoid the common pitfalls that can occur with jury instructions, be sure to be organized. Submit your proposed instructions in writing and in numbered paragraphs to ease future reference. File your proposed instructions with the court and be sure your opponent’s proposed instructions are also filed with the court. You may also consider including boxes on each instruction for the court to check whether the instruction was “given” or “refused.” Also, be sure to make a record of any objections to your opponent’s instructions. Where the court requires you to settle jury instructions off the record, be sure to state your position once on the record, preserving any objection to the modified instruction.
starts, counsel should think about the verdict form just as much as the jury questions. Further, while the use of special verdicts is discretionary with the trial court, where the plaintiff seeks punitive damages, the court must present the jury with a special verdict separating punitive damages from compensatory damages. (See Code Civ. Proc., § 625.) Also, where liability is to be apportioned among several tortfeasors, “a separate judgment shall be rendered against (each) defendant for that amount.” (Civ. Code, § 1431.2.) Thus, noneconomic damages can be apportioned according to fault only to the extent the defendant proves the fault of others and proposes a special verdict form requesting the allocation. (See Wilson v. Ritto (2003) 105
Cal.App.4th 361, 369-370; Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1561 [nonparty physician in medical malpractice case “cannot be found comparatively at fault unless the defendant proves all of the elements of medical malpractice”].) Don’t leave something as important as the verdict form to the last minute. An appeal may be won or lost based on the special verdict alone. Holly Boyer is a partner in Esner, Chang & Boyer, a boutique appellate firm with offices in Southern and Northern California. All of the partners are certified by the State Bar of California as appellate specialists. In addition to handling all aspects of appellate litigation, the firm also assists trial lawyers with dispositive and post-judgment motions.
Craft your special verdict form carefully
Unlike a general verdict that implies findings in favor of the prevailing party, a special verdict requires the jury to determine every controverted fact issue. This requirement is one of the recognized traps of special verdicts. While some appellate courts appreciate the use of special verdicts as they can narrow the focus and even eliminate issues on appeal, other courts disfavor special verdicts because of the possibility of inconsistent findings necessitating a new trial. (McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 937, Cf. Hathaway v. Spiro (1985) 164 Cal.App.3d 359, 367.) The most difficult tactical decision concerning special verdict forms is how detailed the verdict form should be. There are pros and cons of a detailed verdict form, and there is no right answer for all cases. Before trial even DECEMBER 2013
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Red alert: Attorneys’ fees at risk Plaintiffs’ appellate- and enforcement-attorney fee awards are at risk in a case pending before the California Supreme Court The California Legislature has adopted a number of attorneys’ fee-shifting statutes to protect individuals or groups who would not otherwise have access to justice. (E.g., Welf. & Inst. Code, §§ 15675 & 15657.5 (elder abuse), Code Civ. Proc.., §1021.5 (private attorney general doctrine), Code of Civil Procedure section 426.16 (anti-SLAPP). Gov. Code, § 31536 (denial of county public retirement application), and Civil Code section 2983.4 (Rees Levering automobile retail contracts).) However now all such plaintiffs’ appellate- and enforcement related attorney’s fees are threatened in a case currently before the California Supreme Court In Re Conservatorship of the Estate of McQueen, No. A134337 (Cal. Ct. App. Jan. 7, 2013). The case could even adversely affect contractually based awards. If the defendant prevails, the Enforcement of Judgments Law will cut off the plaintiff ’s ability to move for all reasonable, post-judgment appellate and enforcement attorney’s fees because the defendant rushed to pay the original judgment early, before all such fees could be awarded as mandated under the Financial Elder Abuse law. The plaintiff ’s Supreme Court Brief was filed October 30, 2013. Following is the opening statement from that filing: This is a case about access to justice for … [plaintiff] … (a mentally and physically disabled 78-year old, who cannot read or write), other victims of elder abuse and civil litigants whose goal is to right a wrong under a statute that authorizes attorney fees. Public policy requires an attorney fee shifting statute when without one, an individual or group would not have access to justice. In other words, they could not otherwise afford to right a wrong. In essence, attorney fee shifting statutes are society’s safety net to protect those who need it most. 90 — The Advocate Magazine
After a jury trial, … [plaintiff] … prevailed in an action for financial elder abuse … Essentially, defendant, an attorney, intentionally defrauded an old woman with the competency of a child. Plaintiff also prevailed in defending the judgment on defendant’s first appeal, and successfully brought a separate lawsuit against defendant to prevent her from transferring real property to third parties in an attempt to avoid satisfaction of the judgment. As a result, defendant paid the judgment. [Emphasis added.] Notably only the original judgment was paid. This is relevant because the Enforcement of Judgment statutes relied upon by the defendant require full satisfaction of the judgment (Code Civ. Proc., §§ 658.070 and 685.080) in order to bar payment of attorney’s fees as specified. Thus, at best, the defendant only made a partial payment because the judgment had not yet been amended to incorporate all the mandatory attorney’s fees and costs required under the financial elder abuse statute, Welfare & Institutions Code section 15657.5 (a) which states in relevant part: 15657.5. (a) Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs. [Emphasis added.] After the defendant paid the original judgment, the plaintiff moved for reasonable attorney fees and costs incurred in the appeal and separate lawsuit. The Alameda County Superior Court granted the victim plaintiff ’s motion for fees (not costs). But on de novo review, the First District Court of Appeal, 4th Division, reversed in an unpublished opinion (Feb. 2, 2013, Case No. A34337.)
By agreeing with the defendant, the appellate court, in effect, found that the Enforcement of Judgment’s Law barred the elder-abuse victim from seeking all reasonable post-judgment appellate and enforcement related attorney’s fees and costs under Welfare & Institutions Code section 15657.5, because the victim’s abuser had rushed to pay the original trial court judgment before all such fees could even be determined and applied for in a timely manner. According to the court, the plaintiff ’s motion for such fees was untimely because it followed defendant’s full satisfaction of the original judgment. The official issue before the California Supreme Court is as follows: “Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc.,, § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)? Even though the issue is narrowly framed to only address the Elder Abuse Act, if the Supreme Court upholds the Court of Appeal’s ruling, it will encourage all defendants such as the elderabuse defendant in the McQueen case whose evasive actions forced the plaintiff victim to undertake appellate and enforcement related actions in order to protect herself. Such defendants would be handed a template for violating the underlying protective statutory schemes with impunity: • As long as plaintiffs could not be assured of their ability to recover all necessary and reasonable post-judgment appellate and enforcement related attorney’s fees, defendants would have an incentive to take any and all steps to avoid satisfying the original judgment knowing that their victims would never be able to pay the related appellate and enforcement fees out of their own pockets.
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• Such defendants would not even have to rush to satisfy the original judgment early to avoid a potential downstream award of post-judgment appellate and enforcement attorneys’ fees. As long as such defendants had the right to pay the original judgment early and thus avoid responsibility for all post-judgment attorneys’ fees, plaintiffs would be strongly discouraged from incurring them in the first place. The legislative history of the elderabuse attorneys’ fee-shifting statute reveals that it was adopted, in major part, to provide an incentive for attorneys to take such cases in order to protect a vulnerable and needy class of persons. Subdivisions (a), (h) and (j) of Welfare & Institutions Code section 15600 read as follows: (a) The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons. … (Emphasis added.) (h) The Legislature further finds and declares that infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits. (Emphasis added.) (j) It is further the intent of the Legislature … to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults. (Emphasis added.) The 1991 California Legislature adopted the state’s first mandatory elderabuse attorneys’ fees and costs law applicable to physical abuse, neglect and “fiduciary” abuse in Welfare & Institutions Code Section 15657 (a) in Stats. 1991, c. 774 (SB 679), Sec. 3. Thirteen years later in 2004, § 15657 was amended to strike the fiduciary abuse terms in 15657 and a new § 15657.5 was added to require the same “reasonable attorney’s fees and costs” for elder “financial abuse” cases. (Stats. 2004, c. 886 (AB 2611) Sec. 3.Sec. 4.).
The 1991 legislative history reveals that the primary problem addressed by the Legislature in SB 679 was that the award of attorneys’ fees and costs in all elder abuse cases was only discretionary, not mandatory. Furthermore, such attorney’s fees could only be awarded out of the victims’ award which was often small to begin with. Also, elder abuse cases were often hard to prove. The 1991 Legislature believed that these problems impeded victims’ ability to sue successfully because there was insufficient incentive for plaintiffs’ attorneys to take such cases on contingency. The remedy chosen by the 1991 Legislature to address these problems was to eliminate the malfunctioning discretionary method of awarding attorneys’ fees and costs in such cases and to require the abusers to pay them. (E.g., see the Senate Judiciary Committee on SB 679 (Mello), reflecting “author’s amendments to be offered in committee”, published May 8, 1991, Hearing date: April 30, 1991, 1991-92 Regular Session.) (My company, Legislative Research & Intent LLC provided the plaintiff with legislative history research and consulting services.) This incentive so carefully wrought by the 1991 Legislature to encourage attorneys to take elder abuse cases would at least be partially extinguished if the
Court of Appeal’s ruling is upheld by the California Supreme Court. Will that Court hand these types of defendants a sword, allowing them to argue that the Enforcement of Judgments Law cuts off their victims’ ability to move for all reasonable, post-judgment appellate or enforcement attorney’s fees whenever a defendant rushes to satisfy the original judgment first, before a court has the opportunity to award such fees? If so, the Legislature would probably be urged to clarify and reaffirm its original intent by repudiating the decision. Carolina C. Rose (J.D., Stanford, 1976) is owner and President of Legislative Research & Intent LLC (LRI) which has researched the history and intent of more than 10,000 enactments for over 1,500 clients since 1983 (formerly Legislative Research, Inc.). Previously, she worked for seven years in the California Legislature where she was responsible for over 200 bills. Ms. Rose is a recognized expert in the reconstruction of California legislative, regulatory and constitutional history and has written expert witness opinions or provided testimony or consulting in over 100 cases at the administrative, trial and appellate levels. Her Web site offers complimentary online research and advocacy resources at www.lrihistory.com. She can be reached at 800.530.7613 or email@example.com.
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About this Issue
Jeffrey Isaac Ehrlich
Book Review By Jeffrey Isaac Ehrlich Editor-in-Chief
Coaching for Attorneys: Improving Productivity and Achieving Balance By Cami McLaren and Stephanie J. Finelli (ABA Press 2014)
A useful book for attorneys, even if you don’t like self-help books I received an advance copy of Coaching for Attorneys, which is being published this month. The stated purpose of the book is to teach attorneys how to make positive changes in their lives, so they can live their lives in a way that is more conducive to achieving their goals. Perhaps that is a bit generalized. It would also be accurate to say that the purpose of the book is to allow attorneys to better organize their lives and their practices, so that they can practice law in a more efficient, less stressful way. I thought the book was interesting and worth the time I spent reading it. I should give a brief disclaimer: I am not a reader of self-help books. As a result, it is possible that many of the concepts that I found so powerful in this book did not originate with the authors and are simply reformulations of the main concepts articulated in other self-help books. With that caveat, I’ll proceed. Cami McLaren practiced law for almost 20 years, and then moved into personal coaching and lecturing. Her coauthor, Stephanie J. Finelli, is a practicing lawyer in Sacramento. From what I can tell, the book presents ideas formulated by McLaren, which she uses in her coaching practice, and draws on examples provided by Finelli.
The book is an easy read; divided into ten fairly short chapters. The first chapter is titled “The Drift,” and it describes the state that many of us live and work in – basically drifting along in the currents of the routines we have created, without much critical thought about whether those routines are really working for us. People have a remarkable ability to adapt, and part of that ability allows us to get into ruts. The Drift provides a catalyst to recognize those patterns and routines, hold them up to critical scrutiny, and then decide whether we want to continue to go in that direction. 92 — The Advocate Magazine
I won’t provide a chapter-by-chapter breakdown of the rest of the book. The over-arching theme is that people (and lawyers) tend to suffer from two problems: (1) they don’t really know themselves very well, including knowing what they want, and why they want it; (2) they have a tendency to stop drawing connections between the choices they make and the outcomes that those choices produce for them. A person who does not really understand what they want, what makes them happy, and why it makes them happy, will have a difficult time arranging their lives in a way that results in happiness, and will certainly have trouble, if they are already unhappy, in making effective changes.
Connecting the dots
And without understanding the connection between the events we experience and the choices we make, we tend to feel that things “happen” in our lives, or to us, as if we were simply passive actors. Hence, if we are habitually late to court because we get caught in traffic, we are not late because of the traffic. We are late because we chose not to leave more time to get to court; or because we chose not to set the alarm a half-hour earlier; or because we chose to stay up late to see how a movie ended. One of the most powerful concepts in the book is to show the reader how to re-frame his or her thinking so that what “happens” in our lives is expressed as the product of our choices. For me, this was significant because if an outcome that I don’t like is the product of my choice, I can choose to change it. So, my desk is
not messy. Rather, I chose to have a messy desk. And I can choose to have an organized one, by choosing to spend some time organizing it. (I just have not yet made that choice.) Another powerful concept in the book is that it offers a way to help decide what you want and why you want it. We often look past the “why.” If you want to earn $1 million next year, but you do not ask why you want that, you might be on the way to two bad outcomes. First, if you don’t know why, you are very likely not going to be able to commit the personal resources necessary to reaching your goal. Second, you may find out that the goal may actually work at cross-purposes with the underlying reasons that you hold the goal. Let’s say that you want to earn $1 million because you think it will make you feel financially secure, so you can work less and spend more time with your family. It may be that the time you would have to spend in the office in order to earn the $1 million would eat up almost every weekend and eliminate your vacation. So, if your ultimate desire is trying to find a way to spend more time at home, perhaps earning more money is the wrong way to go about doing it. The book contains many exercises that ask you to examine what you want, why you want it, how you would feel if you got it, etc. The overall point is to find ways to make your goals and desires fully congruent and complementary. Part of understanding what you want is the understanding of what you might have to give up to get it, and requires a decision about whether you are willing to give it up. More succinctly, making difficult personal changes requires a lot of motivation and commitment. You are far more likely to succeed if you have a better sense of self awareness, so that you can commit to what is truly important to you.
From a practical standpoint, the book offers many helpful ideas in the chapters on
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time management, self-maintenance, and communication. The time-management concepts, in particular, are grounded on common sense, and basically convert what lawyers tend to do subconsciously into conscious, planned-out routines. Most of us maintain a calendar and a to-do list based on it, which detail our upcoming tasks and deadlines. The book shows you how to better estimate the amount of time you will need to complete them, and how to schedule your life and practice in light of the true time commitments built into your deadlines. When I read the communication chapter, I was a bit skeptical. It seemed fairly simple and self-explanatory. We need to listen better. I thought I was a pretty good listener and communicator. That night, I had a minor fight with my wife, precisely because she said one thing, and I heard something else and reacted to
it. As we worked through the mess I had created, I realized that what I had just done to start the fight could have been pulled from an example in the chapter. The chapter on “enrollment” is interesting, in that it’s how to get people to do what you want them to do, but is really about how to enlist them in a partnership with you to achieve what they want. It comes back to learning to listen effectively, to find out what people really want, and how you can help them achieve it. Not every concept in the book resonated with me. McLaren is, in addition to being a professional coach, also an NLP (Neuro-Linguistic Programming) practitioner. I won’t wade into the debate about the merits of NLP. Let’s just say that it has many detractors. I found that, from time to time when there were statements or concepts in the book that I was
particularly resistant to, they consistently tended to be drawn from NLP precepts. Nevertheless, I think that the book has great value. It provides tools that will help lawyers gain self-awareness, and that will allow them to harness that self-awareness into making better choices about how they practice and maybe even how they live. It also has practical advice for improving areas that many lawyers find troublesome, including managing their time and communicating with clients and staff. The book was originally titled “The Integrated Lawyer.” I think most of us could benefit from better “integration” and Coaching for Attorneys would be a good start. If you are interested in picking up a copy, you can find it at www.mclarencoaching.com/ coaching-for-attorneys/. Jeffrey I. Ehrlich is a plaintiff ’s appellate attorney and the editor-in-chief of Advocate.
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The other half of virtuosity in legal writing Could your choice of typeface be the difference between a winning and losing brief? Several issues ago I imparted some of my favorite grammar-and-usage tips in a piece called “A Short Reckoning of Good Legal Writing.” That article suggested that our legal writing should demonstrate virtuosity from the very first word because we write for a tough and time-strapped crowd. This companion piece posits that sound writing style and good mechanics compose only half the picture of virtuosity. The other half is how your writing actually looks. If your printed page comes across as unpolished, then you and your law firm do too. You wouldn’t show up to court unkempt, so why would you submit a lowbrow-looking brief? Below are ten tips I learned from my pre-lawyer years working in the publishing and graphic-design industries. A common goal runs through them all: optimal readability of your shining prose. 94 — The Advocate Magazine
Typeface: win credibility and believability
People who design ads, flyers, documents or books for a living have access to innumerable fonts. I myself own several thousand. Do I use them all? No. Should I? Probably not. Should I know which one works best for a given purpose? Yes. And so should you. For lawyers, the golden rule is to comply with applicable court rules when drafting court documents. But the rules are not as rigid as you might think. For example, the local rules for the Central District place no restrictions on choice of typeface. Our state and the federal rules of appellate procedure require merely a “roman style” typeface. And the California Rules of Court mandate that the “typeface must be essentially equivalent to Courier, Times New Roman, or Arial.” These rules allow considerable leeway in choosing a typeface.
Type can be broken down into dozens of categories, but a lawyer can get by with two: serif and sans serif. Serif typefaces have little tails, or serifs, on the characters. Times is the best-known, and most banal, example. Sans serif typefaces – you guessed it – are devoid of serifs. Arial is the best and most uninspiring example. Most typographers believe that serifs foster visual flow from character to character and thereby enhance readability, especially of running text. Conversely, the absence of serifs makes typefaces more suitable for short headlines or signage. (Think of how wrong a stop sign would look in a serif font like Times.) An experiment by the New York Times last year showed that typeface directly affects credibility and believability. By presenting the same data in different typefaces and then quizzing readers on their confidence in the content, the
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JA experiment demonstrated that even slight variations in typeface can make a big difference. The winner, Baskerville (the typeface used in this magazine), elicited much more confidence than second place, Georgia, even though these serif typefaces are very similar. Few of those surveyed felt much confidence in the version presented in Comic Sans, which is a novelty typeface. For litigators, who at all times should be looking to win the battle for credibility and believability, this should be sounding bells. Your choice of typeface just might be the difference between winning and losing a motion.
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Type size: bigger is not better
Type size is easy for lawyers: 12 points for state court, 13 or 14 points for federal. Right? Not so fast. The court rules require these numbers, but not all fonts are created equal size-wise. For instance, 12-point Times actually equals 10.75-point Arial. And 13-point Baskerville yields text the same size as 12-point Janson. So what the rules mean by “12 points” is not entirely clear. I believe that the rule-writers oriented themselves on Times. So to achieve the actual size of 12-point Times in another typeface, you might need a different point size. And when writing something to which the rules don’t apply, you remain free to use any size at all. Half sizes? Yes, type sizes are not limited to round integers. With powerful design software, you can set type to the hundred-thousandth decimal. Word processors are more limited. But most permit half sizes. For letters and memos, I set my sans serif typeface at 11.5 points. Why use 11.5 instead of 12? Because unlike in other areas of life, bigger is not better. The text you read in books, magazines and newspapers is set between 9 and 11 points (this magazine is 9 points). This is not to cram more words on the page and save paper. It’s because these are optimal sizes for readability of running text. Most typographers consider 12 points an inelegant size reminiscent of college term papers. You may think, especially as you get older, that you
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Legal Writing — continued
would love to read a book set in really big type. Go to a children’s bookstore and see if that’s true.
Line length: keep it short
The length of a line of text, called its measure, directly affects readability. Our eyes like to read text – and our brains are accustomed to processing it – in short measures. Again, consider commercial magazines and newspapers. The text does not run continuously from the left edge of the page to the right, but rather is broken into columns. That’s because the eye has a hard time coming back to the left edge after traveling too far to the right. And that’s why we prefer to write on – and read – a vertical page rather than a horizontal one. Court rules prescribe minimum margin size. For example, the California Rules of Court require “at least” a 1-inch left margin and a 1/2-inch right margin. Abiding by these minimum standards produces a line measure that is too long. Enhance readability by increasing the margins, thereby decreasing the length of your line. Won’t that impact the page count? Yes, it will. You will have to use fewer words to make your arguments. But virtuoso legal writers generally finish with a few pages to spare.
Line spacing: get it right Court rules fix the parameters of line spacing (called leading; pronounced “ledding”), so there’s not a lot of leeway. But there are a few things you should know. First, the California Rules of Court allow for double spacing or one-and-onehalf line spacing. So if you can’t live with the loss of real estate that results from shortening your line length, you can choose one-and-one-half line spacing and regain ground. Second, your word processor probably is not producing true line spacing. Double spacing means leading that is twice as large as the type’s point size. So 12-point type goes with 24-point leading. But the automatic “double spacing” option in Microsoft Word, for example, inserts extra line space. The cure is to use the “exact” option and manually set the leading based on your type size. Neither double nor one-and-onehalf line spacing is optimal. So when court rules don’t apply, use professional leading. This involves using true singlespacing and adding about 2 points. So for 11-point type, your ideal line spacing would be 13 points. Typographers think of space as composers think of time and
would note this arrangement as 11/13 (this magazine is normally set 9/10.5, but we have been known to cheat and set it 9/9.5 when we have too many words for the allocated space – editor). A word about spacing between paragraphs. Briefs should have no additional spacing because you indent to signal a new paragraph. But with letters, where you are not indenting, set paragraphs apart by adding extra space. The problem arises here too when you rely on automatic values in your word processor. When you hit a double return, you get too much line spacing. Solve this by manually setting the space after (or before) paragraphs and forgoing the double return. About 6 – 8 points between paragraphs looks right.
Text alignment: run ragged
Typewriters produce left-aligned text, characterized by paragraphs with a “ragged” right edge. Modern word processors can render left, center, right and justified text alignment. Justified text blocks have perfectly even left and right edges. When we all got our first word processors many years ago, the first thing we did was to start justifying our text because we had the power to emulate professional typography. Or so we thought.
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Justified text is not necessarily a mark of professionalism. Because justification requires forcing space between words and characters, it disrupts the inherent letterspacing of your typeface and can make lines of text look queer. Yes, most books published in the western world use justified text. But they are designed with sophisticated software that justifies text using advanced algorithms which can be further adjusted by designers. Your word processor yields only rudimentary text justification. The result is that your printed page doesn’t look professional; it looks like it’s trying to look professional. Note that most newspapers, magazines and artistic books use left-alignment. Follow their lead. Maintain the integrity of your font’s inherent letterspacing by choosing left-aligned text and embracing the ragged right edge.
Type style – bold, underline, italics: obey the rules
Here are the rules. Don’t fight them: • Never underline. Ever. • Use bold judiciously. Perhaps for headings or subheadings. Never for emphasis. • Use italics for emphasis. • Never use bold and italics at the same time (unless you are bolding a case name in a heading, for example).
• Whenever you find yourself italicizing a word for emphasis, consider rewriting the sentence. Strong syntax generally packs a stronger punch than an italicized word.
All caps? Not if you can help it
Setting a sentence in all caps is a sure-fire way to make it as unreadable as possible. The ascenders and descenders of characters (i.e., the lower-case extensions of characters above the mean line of text and below the baseline) allow us to recognize words. Setting type in all caps hinders this process. So whenever possible, avoid using all caps. Two sentences in a row should never appear in all caps. And I hope it goes without saying that you should never use all caps (and extra punctuation) for emphasis. (NEVER!!) Also, for your headlines and subheads, eschew traditional title case in favor of sentence case. So instead of “The Statute of Limitations Has Not Run,” write “The statute of limitations has not run.”
Space between sentences: just do it
One, not two. It’s been the rule for nearly a century. I defy you to find a single piece of professionally typeset materi-
al that uses two spaces between sentences. Pick up any book, magazine or newspaper and see for yourself. Why lawyers perpetuate this typographic quirk, left over from 19th century manuscripts and 1950s typewriters, is a mystery. It serves no purpose other than to compromise readability and demonstrate dilettantism.
Headings and subheads: vary wisely
Align them left, not center. (In fact, try to eliminate center-aligned text altogether.) For a document with many levels of subheadings, you’ll need a variety of styles. A good professional font family will help, as it will contain varying weights (semi-bold, bold) and a set of small caps. Headings should rest directly on top of the text they introduce: do not insert extra line spacing. And of course, no underlining.
Miscellaneous: take advantage of type Use your font’s real quotation marks (called curly quotes), not the straight quotation marks that word processors can default to. There is a setting for this in your word processor. If you paste text into your document from the Web, you will have to manually change the straight quotes to curly.
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Legal Writing — continued
If you write with em dashes (—), be sure to insert no space on either side; the dash touches the words on either side of it. The modern trend is to use an en dash with one space ( – ) on each side of it instead of an em dash. Also use en dashes, not hyphens, for continuing numbers, such as 5-7, with no space on either side of the dash. Your font has its own ellipses. Learn the keystroke for it and use it rather than cobbling an ellipsis from periods and spaces. Refrain from putting fractions and ordinals in superscript. If your word processor automatically puts ordinals in superscript, change the settings. It should be like so: Cal.App.4th, not Cal. App. 4th. And no spaces between Cal. and App. and 4th. These particular details are not just good typography, they’re firm Bluebook rules [Ed. note: Advocate Magazine uses the California Style Manual].
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From the Editor Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate Reports and cases in brief Cases of interest to members of the plaintiffs’ bar Sonic-Calabasas A, Inc. v. Moreno
(2013) _ Cal.4th_ (Cal. Supreme). Who needs to know about this case? Lawyers handling cases in which arbitration is sought. Why it’s important: Many observers believe that there is considerable tension in the California Supreme Court’s rulings that find certain aspects of arbitration agreements are unconscionable, and therefore cannot be enforced, and the U.S. Supreme Court’s broad construction of the Federal Arbitration Act (“FAA”), as applied in AT & T Mobility LLC v. Concepcion (2011) 563 U.S. ––––, 131 S.Ct. 1740. The U.S. Supreme Court had previously vacated the California Supreme Court’s decision in this case, which held that it was unconscionable for employers to require job applicants, as a condition of employment, to waive their rights to certain administrative procedures to recover lost wages (“Berman hearing”). This decision is the first postConcepcion arbitration decision by the California Supreme Court. Synopsis: In In Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 (Sonic I ), the Court held that it is contrary to public policy and unconscionable for an employer to require an employee, as a condition of employment, to waive the right to a Berman hearing. The U.S. Supreme Court granted certiorari in Sonic I, and remanded for consideration in light of Concepcion. In Sonic II, the California Supreme Court held that, contrary to Sonic I, the FAA preempts a state-law rule categorically prohibiting waiver of a Berman hearing in a pre-dispute arbitration agreement imposed on an employee as a condition of employment. But the Court further held that “state courts may continue to enforce unconscionability rules that do not interfere with fundamental attributes of arbitration.” The Court remanded for a
determination about whether the particular arbitration agreement at issue was so unfair or one-sided that it was nevertheless unconscionable. The Court’s decision in Sonic II is lengthy, and highly technical, and a full summary would take more than the space allotted to this entire column. The Court’s key findings are: • It was well-established even before Concepcion that state-law rules must not facially discriminate against arbitration and must be enforced evenhandedly. Concepcion goes further to make clear that such rules, even when facially nondiscriminatory, must not disfavor arbitration as applied by imposing procedural requirements that “interfere with fundamental attributes of arbitration,” especially its “lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” • State-law rules that do not “interfere with fundamental attributes of arbitration do not implicate Concepcion’s limits on state unconscionability rules.” • State-law rules may validly address issues that arise only in arbitration, and therefore that may have a disproportionate impact on arbitration agreements. Hence, an arbitration agreement that functionally allowed the party imposing arbitration to choose a biased arbitrator would remain unconscionable even after Concepcion. • There are other ways an arbitration agreement may be unconscionable that have nothing to do with fundamental attributes of arbitration. The Court listed as examples, a $50,000 threshold for an arbitration appeal, which favored defendants in employment contract disputes; an arbitration agreement with a damages’ limitation that would prevent the plaintiff from ever being made whole; and an arbitration agreement that allowed the employer to recover its attorney’s fees from an employee, but not vice versa.
• The core concern of the unconscionability doctrine is the absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Even after Concepcion, California courts may continue to apply the unconscionability doctrine to arbitration agreements. • The unconscionability doctrine does not mandate the adoption of any particular form of dispute resolution mechanism, and courts may not decline to enforce an arbitration agreement simply on the ground that it appears to be a bad bargain or that one party could have done better. Unconscionability doctrine is instead concerned with whether the agreement is unreasonably favorable to one party, considering in context “its commercial setting, purpose, and effect.”
Mt. Holyoke Homes, LP v. Jeffers Mangels, Butler, et al.
(2013) __ Cal.App.3d __ (2d Dist., Div. 3.) Who needs to know about this case? Lawyers handling cases in arbitration. Why it’s important: Holds that an arbitrator’s failure to disclose that he had listed one of the principals of the parties involved in the arbitration as a reference 10 years earlier would cause an objective observer to doubt the arbitrator’s ability to be impartial, requiring that the arbitration award be vacated. Synopsis: Mt. Holyoke Homes and its principal (“Plaintiffs”) filed a legalmalpractice action against its former counsel, Jeffers, Mangels, Butler & Mitchell (“JMBM”). The case was ordered to arbitration based on an arbitration clause in the JMBM retainer. The parties agreed to retired Superior Court Judge Eli Chernow as the arbitrator. Judge Chernow’s disclosures did not reveal any conflict that concerned the parties. He ruled in favor of JMBM, and awarded it its unpaid legal fees, attorney’s fees, and costs, totaling over DECEMBER 2013
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Appellate — continued
$450,000. After the award was issued, but before it was confirmed, Plaintiffs searched the Internet for evidence of arbitrator bias, and discovered a previously undisclosed, 10-year-old resume on an Internet site for the “National Academy of Distinguished Neutrals.” The resume listed Robert Mangels, a principal in JMBM, as a reference. Plaintiffs filed a petition to vacate the award based on Judge Chernow’s failure to disclose his relationship to Mangels. Both Judge Chernow and Mangels filed declarations in support of the opposition to the motion to vacate. Judge Chernow stated, “I have no relationship with Mr. Mangels other than as a neutral involved in mediation, adjudication, and discovery and other reference proceedings. The cases in which Mr. Mangels
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appeared before me occurred in the 1990s and early 2000s.” He also stated that he had listed Mangels as a reference only because Mangels was a well-known and highly-regarded litigator who was familiar with his abilities as a neutral, and that he had never discussed with Mangels naming him as a reference. Mangels’s declaration stated that he had appeared before Judge Chernow as a judge, mediator and arbitrator, but not within the past five years, and that the two had no professional or personal relationship. He stated that he had never discussed acting as a reference for Judge Chernow. The trial court denied the motion to vacate, stating in its order, “From the declarations of Judge Chernow and Mangels, it is clear that the parties have virtually no relationship beyond Mangels having appeared before Judge Chernow in the past. Simply listing Mangels, amongst other named partners, on a 10year-old resume is insufficient to trigger [Code Civ. Proc., § 1281.9(a)(6)]. Further, the Court finds that a person aware of the facts would not entertain a doubt as to the impartiality of the arbitrator.” Reversed. The question is not whether Judge Chernow actually was biased, but whether a reasonable person aware of the facts reasonably could entertain a doubt that
he could be impartial in this case. The court concluded that the answer to this question was yes. “Judge Chernow had listed Mangels as a reference on a resume that was publicly available on the Internet at the time of his selection as an arbitrator in this matter. Judge Chernow presumably believed that Mangels had a favorable opinion of his abilities as a neutral and would speak positively about him if asked. An objective observer reasonably could conclude that an arbitrator listing a prominent litigator as a reference on his resume would be reluctant to rule against the law firm in which that attorney is a partner as a defendant in a legal malpractice action. To entertain a doubt as to whether the arbitrator’s interest in maintaining the attorney’s high opinion of him could color his judgment in these circumstances is reasonable, is by no means hypersensitive, and requires no reliance on speculation. We believe that an objective observer aware of the facts reasonably could entertain such a doubt.” The court expressly rejected JMBM’s argument that because the resume was readily discoverable on the Internet Judge Chernow had no obligation to disclose the fact that he had listed Mangels as a reference. A party to an arbitration is not required to investigate a proposed neutral arbitrator in order to discover information, even public information,
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that the arbitrator is obligated to disclose. Instead, the obligation rests on the arbitrator to timely make the required disclosure.
Short(er) takes: Public-entity liability; natural conditions; unimproved public property; parking lots; trees. Meddock v. Yolo County (2013) __ Cal.App.4th __ (3d District). A tree fell on Meddock while he was in the parking lot of the Elkhorn Boat Ramp, which was part of a regional park owned by Yolo County. Meddock’s suit against the county claimed that the trees were diseased and infested with parasites, which created a risk of danger to those using the parking lot. He also argued that he was injured on the parking lot, which constituted an improved portion of public property, so that the immunity for injuries arising from natural conditions on unimproved public property did not apply. The trial court granted summary judgment for the county. Affirmed. When the county paved the parking lot and made improvements to the property around the boat ramp, it assumed liability for a dangerous condition of the parking lot, provided that it had notice and time to correct it. The county is immune, however, for injuries “caused” by a natural condition of any unimproved
public property. The county argued, and the court found, that Meddock’s injury was “caused” by trees, which were native flora, located near or adjacent-to the parking lot, but on unimproved property. The fact that the injuries occurred on the parking lot does not mean that county was liable, because the county’s immunity does not turn on the location of the injuries; it turns on whether they were caused by a natural condition on unimproved property – which they were. Products liability; sophisticateduser doctrine; jury instructions: Pfiefer v. John Crane Co. (2013) __ Cal.App.4th __ (2d Dist. Div.4.) Pfiefer served in the Navy and worked for the U.S. Government as a boiler technician. In those roles, he was exposed to asbestos manufactured by Crane, which was contained in gaskets and packing in the propulsion systems and boilers on Navy ships and in government facilities. He developed mesothelioma. In affirming a judgment against Crane, the Court of Appeal held that the trial court had correctly rejected a sophisticated-user jury instructions proposed by Crane, which would have told the jury that Crane had no duty to warn the Navy or its employees about the dangers of its products, and that the employees of a “sophisticated user” are deemed to be sophisticated users. The
court held that the trial court correctly refused the instructions because their statement that the employees of a sophisticated user are deemed to be sophisticated users was legally erroneous, and there was insufficient evidence to show that the Navy was a sophisticated user. Jeffrey Isaac Ehrlich is the principal of the Ehrlich Law Firm, with offices in Encino and Claremont, California. He is a cum laude graduate of the Harvard Law School, a certified appellate specialist by the California Board of Legal Specialization, and a member of the CAALA Board of Governors. He is the editor-in-chief of Advocate magazine.
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From the Executive Director Stuart Zanville
Consumer Attorneys Association of Los Angeles
CAALA’s Installation and Awards Dinner Recognizing attorneys and jurists who make a difference From the Director Rodriguez v. Valley Vista Services where a On Saturday, Executive January 18, 2014, Other finalists included Michael Consumer Attorneys of Los Angeles will jury awarded a verdict of $21.7 million to Stuart Zanville host its annual Installation and Awards a 34-year old mother of four who lost her CAALAWilshire Hotel. Dinner at the Beverly job while on medical leave. The result is More than 900 attorneys and jurists will the largest single plaintiff wrongful termibe in attendance when 2013 CAALA nation verdict to come out of Los Angeles. President Lisa Maki passes the gavel to The other 2013 finalists were incoming President Geoff Wells. Arnoldo Casillas, Lars Johnson, David Los Angeles Superior Court Ring and Martin Stanley. Assistant Presiding Judge Carolyn Kuhl Ted Horn Memorial Award will administer the installation oath to Stuart Zanville The late Scott Marks Wells and other CAALA officers: Joe CAALA is the recipient of the 2013 Barrett, David Ring, Ricardo Echeverria, Ted Horn Memorial Mike Arias and Shawn McCann. Award honoring a CAALA This will be the 65th time that memmember whose career bers of our association have held a gala includes significant contridinner to recognize and install the butions to the trial bar and incoming officers and members of the Marks to CAALA’s members. Board of Governors. For 23 years, the Marks passed away in dinner only honored the officers and March. He specialized in insurance issues board, but in 1972Stuart the leaders of the Zanville and throughout his career provided memassociation decided to addAttorneys a new element Consumer Association of Los Angeles bers with help and assistance dealing with to the already successful event. They litigation against insurance carriers. He decided to recognize outstanding attorhelped formulate policies adopted by the neys and jurists. California Department of Insurance. Marks Today, being honored by our associawas an emeritus member of CAALA’s tion is a significant accomplishment for Board of Governors and was instrumental the judges and attorneys who are recipiin creating CAALA’s mentor program. ents of the annual awards. Recognizing Other finalists included Michael judges and attorneys for their dedication Fields and William Shernoff. to the highest professional By Stuart standards Zanville not only pays tribute to the award winners, it of Los Angeles Consumer Attorneys Association Rising Star Award also pays tribute to the entire trial bar Ibiere Seck is the and bench. recipient of the 2013 Trial Lawyer of the Year Rising Star Award, presented to up-and-coming Carney Shegerian is the CAALA members who recipient of the 2013 have practiced law for less Charlie O’Reilly Trial Seck than 10 years. Lawyer of the Year award Seck has been practicand is the first winner to ing law for five years and last year specialize in employment worked on trials as lead or second chair litigation. This is the fourth Shegerian representing two young boys who were time that Shegerian has harmed both physically and emotionally. been nominated for the She is a member of CAALA’s Board Trial Lawyer of the Year Award. of Governors and has contributed as a The CAALA Board of Governors leader on several committees including recognized him as a result of his trying New Lawyers and the Women’s five cases to successful verdicts in 2012 Roundtable. and 2013. This includes the case of
From the Executive Director
From the Executive Director
102 — The Advocate Magazine
Jacob, Brad Kramer, Spencer Lucas, and Robert Simon.
Alfred J. McCourtney Trial Judge of the Year
Los Angeles Superior Court Judge Daniel Buckley is the 42nd recipient of the Alfred J. McCourtney Trial Judge of the Year award. Judge Buckley is Supervising Judge of the LASC Civil Courts and Buckley throughout 2013 worked tirelessly to formulate and implement the new civil court policies and procedures required as a result of the severe budget cuts to California’s trial courts. Other nominees included L.A. Superior Court Judges Helen Bendix, Susan Bryant-Deason, Gerald Rosenberg and Salvatore Sirna.
Roger J. Traynor Memorial Award/Appellate Justice of the Year
Justice William Rylaarsdam, Associate Justice of the Court of Appeal, Fourth District, Division Three is the recipient of the Roger J. Traynor Memorial Award, presented annually to the Appellate Justice of the Year. Justice Rylaarsdam has served as an associate justice of the California Court of Appeal since 1995 and before that served 10 years as a Los Angeles Superior Court judge. Other 2013 nominees included Justices Victoria Chavez, Jeffrey King and James McIntyre and U.S. Circuit Judge Richard Paez.
Tickets to the annual CAALA Gala are now available at the CAALA Web site www.caala.org, but keep in mind that the event is traditionally sold out, and demand this year will be high.
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From the President Scott Cooper
Orange County Trial Lawyers Association
A year’s worth of thanks The confluence of an approaching Thanksgiving and writing my last Advocate article as President of the Orange County Trial Lawyers Association has put me in a nostalgic mood. It got me thinking about the past year, including the many OCTLA events and accomplishments we packed into just 11 short months. Most of all, though, I think about the hard work of the people who made it all possible, and I just want to say “thanks.” We began the year, as we always do, with our annual installation dinner in January. This year was different, though, because it was our 50th anniversary, which was cause for even more celebration. We not only installed our Officers and Directors, we commemorated the 50-year history of the organization through retrospective videos, vintage photos, and other memorabilia, including past issues of our monthly publications. There was a fitting tribute to all of our Past Presidents, and we were honored to welcome over 25 local judges – a sign of the strong relationship between the bench and bar in Orange County. Putting all this together took a team I would like to thank, including Casey Johnson, Geraldine Ly, Ted Wacker, and Shaina Colover. For 50 years, OCTLA has provided educational programs and a forum for lawyers, judges, and others from the community to come together and connect outside the office. This year, we continued that tradition with our monthly MCLE dinner meetings, which month after month, presented top-notch speakers and topics. Anyone who has organized a seminar knows the amount of work that goes into it, and doing one every single month is an arduous undertaking. For the second year in a row, Jonathan Dwork took on this mammoth task and crushed it as the chair of the Education Committee. I would like to thank him and others who put together the programs this year, including Chris Purcell and Cynthia Craig. As trial lawyers, we are all mindful of the budget cuts that have devastated the courts and threaten to do even more harm in the future. This year, many OCTLA
members stepped up and personally met with Orange County legislators as part of a coordinated effort to educate and persuade them to make the courts a priority in the state budget. We also sent a large contingent of Orange County lawyers up to CAOC’s Justice Day, where we again lobbied legislators on this issue and threw our most well-attended annual pre-Justice Day mixer at Vallejo’s Mexican restaurant. Behind all these efforts was the chair of our Legislative Committee, Cynthia Craig. Thank you, Cynthia, for all your efforts in this most important arena. Late summer and fall is when our social schedule really kicked into high gear. For the first time this year, we joined the Young Lawyer’s Division of CAOC for a day at the Del Mar Racetrack. This was followed in September by our seventh annual BenchBar Softball Game and Family Picnic. As usual, the game pitted lawyers against judges. With the series tied 3-3, this was the “rubber match” for bragging rights. Perhaps fittingly, the game ended in an 1111 tie, the final out coming with the bases loaded in the bottom of the last inning. I think there was only one confirmed injury, which is a success in and of itself. Thank you to Melinda Bell and Geraldine Ly for their work in planning these events, to Eric Traut for coaching the lawyers’ team, and to all the judges who came out and gave us a great game. Our annual Columbus Day Golf Tournament was a huge success. We had a sold-out field of 144 golfers, beautiful weather, lively sponsor holes, Polynesian dancers, and fantastic food and drinks afterwards. The tournament also allowed us to donate $2,500 to the Orange County Collaborative Courts Foundation. Rob Gibson once again chaired this event, and once again, hit it out of the park. Thanks, Rob. As I write this article, we are in the final preparations for our signature event of the year – the Top Gun Dinner and Charity Auction, where we will recognize the accomplishments of five local trial lawyers, honor the retiring Judge Wendy Lindley of the Orange County Collaborative Courts, and
raise money for the Public Law Center’s Operation Veterans Re-Entry program. Pulling this off requires the effort of the entire Board, but I would particularly like to thank Anthony Burton and Geraldine Ly for their leadership roles, and Anthony’s entire Top Gun Committee for all of their work. Selecting the Top Gun award recipients is an arduous task requiring hours of due diligence and vetting of the many nominees. Thank you to Jerry Gans and his selection committee (Chris Purcell, Ted Wacker, Jonathan Dwork, Kevin Liebeck, and Doug Vanderpool) for their meticulous efforts to get this right. Year after year, one of the most timeconsuming and crucial positions on our Board is the editor of our quarterly magazine, The Gavel. This year, Sarah Serpa took over that role, and turned out fantastic editions that educated and entertained our membership. Thank you, Sarah, and to the committee who helped her, including her Vice-Chair, Atticus Wegman. I also need to thank Casey Johnson, our President-Elect, who had his fingers in most of what we do and was always there for me to provide counsel when needed. I know I leave this organization in the best of hands next year. Those familiar with OCTLA will notice one name is conspicuously absent thus far. That is, of course, Janet Thornton – OCTLA’s Executive Director. I hadn’t mentioned her because her name belongs next to every single one of those events and accomplishments listed above. She is literally the glue that holds this whole thing together, and without her, none of this would be possible. So, to Janet, I say “thank you,” “thank you,” “thank you.” Unfortunately, in this limited space, I cannot name everyone who played a role in our successes this year. As the saying goes, “It takes a village,” and there are many people who worked quietly behind the scenes to make sure OCTLA was the best it could be. To all those who played a role and contributed this year, I express my deepest gratitude for your efforts. Happy Holidays, everyone, and here’s to an even better 2014. DECEMBER 2013
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Sacramento Update By Eric Bailey CAOC Communications Director MICRA: Our aim is true Our foes are using deceit to whip up opposition to the Troy and Alana Pack Patient Safety Act, an initiative for November 2014 that proposes to boost MICRA’s outdated cap to account for 38 years of inflation, enact physician drug testing and help the fight against “doctor shopping” prescription drug abusers. The duplicity starts with the disingenuously branded Californians Allied for Patient Protection, or CAPP for short. CAPP and its tort-reform coterie have for years been spouting mistruths about MICRA and the role civil litigation plays in securing a measure of justice for medical-negligence victims. They hide the ball about insurance industry profiteering from the MICRA cap. They turn a blind eye to the epidemic of health care errors that have made medical negligence the third leading killer in America, just behind cancer and heart disease. In contrast, the coalition campaign championing the Pack Act comes armed with real information. Our aim is honest, upfront, factual and true. To that end, we are taking the remarkable step of publicly releasing our campaign talking points for all to see. A truncated version is appended at the end of this report. You can find a full three-page copy at http://tinyurl.com/PackActFacts With your help, we’re going to get out the word in a manner that is factual and forthright. Let’s work together to educate local elected leaders and voters alike. Like a good case in court, we believe the truth is a very potent weapon against an enemy armed with deception.
The Troy and Alana Pack Patient Safety Act This patient safety measure will save lives With medical negligence the third leading cause of death in this country behind only heart disease and cancer, we need to ensure patients are safe when they go into a hospital or doctor’s office. This measure protects patient safety by: • First, requiring drug and alcohol testing of doctors – just like pilots, bus drivers or firefighters; • Second, cracking down on prescription drug abuse and overprescribing by creating a statewide database that must be checked before prescribing a drug; • Third, by holding doctors accountable for negligence by adjusting the current cap on medical negligence damages to account for 38 years of inflation while maintaining the existing cap on attorneys’ fees. At a time when we face a crisis in patient safety, it is telling that the medical industrial complex profits from the current system and opposes this patientsafety measure. As many as 440,000 people die each year from preventable medical negligence, according to a study published in the Journal of Patient Safety. That’s like a 747 crashing every 10 hours. Medical-negligence deaths don’t capture headlines and few public steps have been taken to stem the tidal wave. This patient-safety measure requires drug and alcohol testing of doctors. • Airline pilots, bus drivers, and even warehouse workers undergo drug and alcohol testing – this measure would apply the same testing to doctors. • The California Medical Board estimates that 18 percent of doctors suffer from substance abuse during their careers, putting patient safety at risk.
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This patient-safety measure will crack down on prescription drug abuse. • One in five Americans abuse prescription drugs – and there is too little oversight of patients and the doctors who over-prescribe highly addictive medications. • By requiring doctors to consult the statewide database before prescribing addictive drugs, this measure will prevent “doctor-shopping” by painkiller addicts. This measure will make sure that a doctor is held accountable if they commit medical negligence, especially in cases where they test positive for drugs or alcohol while on duty. • The Pack Act raises the cap to simply account for inflation while maintaining the existing cap on attorney fees. • The current cap has never been adjusted for inflation, and reflects a onesize-fits-all approach that does not take into account the severity of injury or negligence, such as a child’s death. This measure is supported by leading consumer groups because it will protect patients. For a complete copy, go to http://tinyurl.com/PackActFacts
Washington Update By Linda Lipsen CEO, American Association for Justice Republican House leadership’s “lawsuit abuse” bills Republican leadership’s legislative agenda includes what they are calling “lawsuit abuse” bills. Instead of fixing actual problems facing the nation, these bills represent solutions in search of non-existent problems. Worse, the bills severely limit access to justice for individuals. The bills are H.R. 2655, the Lawsuit Abuse Reduction Act (LARA) and H.R. 982, the Furthering Asbestos Claims Transparency (FACT) Act. The American Association for Justice opposes both bills. You can help our advocacy by sending your member of Congress a message to vote “no” on H.R. 982.
H.R. 982, the Furthering Asbestos Claims Transparency (FACT) Act The FACT Act is a bill that was reintroduced this Congress at the request of the asbestos industry and U.S. Chamber. These are the only entities supporting this bill. AAJ opposes this bill, as do asbestos victims and their advocates, and consumer, environmental and Labor organizations. Asbestos is still legal in the U.S. Rather than help asbestos victims or ban this deadly product, the bill further injures victims by violating the privacy of victims and their families and by forcing new burdens on the trusts which would delay recovery and deny compensation.
H.R. 2655, the Lawsuit Abuse Reduction Act (LARA) LARA calls for mandatory penalties for filing “frivolous” claims. This bill is a favorite of tort “reformers” and is reintroduced every Congress. It would amend a Federal Rule of Civil Procedure (Rule 11) to a tried-and-failed version of the rule. Pathetically, anti-civil justice lawmakers are grasping at straws to come up with something that would be favorable to corporations and the U.S. Chamber of Commerce. The American Association for Justice is educating lawmakers and their staff about real issues – like safety and accountability – and is fighting to block these bills.
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New CAALA Affiliate Vendors
Our Affiliate Vendors are an excellent resource to help improve your practice. They provide goods or services specifically for plaintiff trial lawyers. Please support our Affiliate Vendors by contacting them for your business needs and projects.
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39 YEARS OF CRIMINAL DEFENSE EXPERIENCE From DUIs to serious felonies • Liens accepted in appropriate cases. • Referral fees paid. • Your relationship to your client is respected and protected.
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25 years. He is highly respected in the criminal defense community. — David Wood
800.953.4500 310.395.7900 FAX
310.395.1833 www.randolphassociates.com Se Habla Español.
Don for ‘‘I42haveyears.knownHe knows the
CAALA Board Member, Emeritus
CATEGORY: Structured Settlements | Financial/ Retirement Planning | Insurance Providers & Services Delivering first-class customer service, responsiveness, and availability. Never doubt whether or not your Spanish-speaking client understands the details of a structured settlement with our team by your side.
Manuel & Manny Valdez of Ringler Associates 601 S. Figueroa St., Suite 4050 Los Angeles, CA 90017 (877) 231-3334 Contact: Mr. Manny J. Valdez E-mail: email@example.com
criminal justice system and its players inside and out.
— Bruce Fishelman
CAALA Member At Large
The Advocate Magazine — 105
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ADR Providers ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Carrington, R.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Daniels, Jack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101 Fields ADR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68 First Mediation Corp - Jeffrey Krivis . . . . . . . . . . . . . .98 Gage, Sandy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Graver, Darryl . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Hanger, Bob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Jossen, Sanford Law Office . . . . . . . . . . . . . . . . . . . .74 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Mehta, Steven G. Mediation . . . . . . . . . . . . . . . . . . .52 Rubin, Charles “Skip” . . . . . . . . . . . . . . . . . . . . . . . . .50 Sepassi & Tarighati, LLP . . . . . . . . . . . . . . . . . . . . . . .15 Announcements and Career Opportunities CAALA Installation Dinner . . . . . . . . . . . . . . . . . . . . .71 CAALA PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84-85 Camerata Pacifica . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Los Angeles Trial Lawyers Charities . . . . . . . . . . . . . .63 Attorneys – Appeals Bader, Donna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 Ehrlich Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Jury Verdict Alert . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Pine & Pine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61 Steven B. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Attorneys - Accepting Referrals Bailey Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 Banifsheh, Danesh & Javid, PC . . . . . . . . . . . . . . .22-23 Bisnar | Chase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Cheong Denove Rowell Bennett & Karns . . . . . . . . . .35 Cook, David . . . . . . . . . . . . . . . . . . . . . . . . . . . . .96, 97 Danz, Stephen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Dordick Law Offices . . . . . . . . . . . . . . . . . . . . . . .54-55 Edzant, Barry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Engstrom, Lipscomb & Lack . . . . . . . . . . . . . . . . . . . .51 Galipo, Dale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Gelber, Bruce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82 Girardi | Keese . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75 Greene Broillet & Wheeler . . . . . . . . . . . . . . . . . . . . . .1 Hodes Milman Liebeck Mosier . . . . . . . . . . . . . . . . .56 Kesluk & Silverstein . . . . . . . . . . . . . . . . . . . . . . . . . . .68 Law Offices of Lisa Maki . . . . . . . . . . . . . . . . . . . . . .59 Law Office of Philip Michels . . . . . . .Inside Back Cover Makarem & Associates . . . . . . . . . . . . . . . . . . . . . . . .25 Manly & Stewart . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 McGonigle, Timothy . . . . . . . . . . . . . . . . . . . . . . . . . .21 McNicholas & McNicholas . . . . . . . . . . . . . . . . . . . . .9 Metzger Law Group . . . . . . . . . . . . . . . . . . . . . . . . . .65 Nemecek & Cole . . . . . . . . . . . . . . . . . . . . . . . . . . . .66 Panish Shea & Boyle . . . . . . . . . . . . . . . . . .Back Cover Randolph & Associates . . . . . . . . . . . . . . . . . . .76, 105 Richard Harris Law Firm . . . . . . . . . . . . . . . . . . . . . . . .4 Rizio & Nelson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Shernoff Bidart Echeverria Bentley LLP . . . . . . . . . . . .81 Taylor & Ring, LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 The Traut Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Vartazarian Law Firm . . . . . . . . . . . . . . . . . . . . . . . . .40 Court Reporters Atkinson Baker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77 Jonnell Agnew . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Kusar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79 Personal Court Reporters . . . . . . . . . . . . . . . . . . . . . .89
106 — The Advocate Magazine
Defense Medical Exam Observation Advantage Representatives . . . . . . . . . . . . . . . . . . .100 Haiby, Michael . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80 PRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Expert Witnesses – Medical Forensic Autopsy Services . . . . . . . . . . . . . . . . . . . . .91 Graboff, Dr. Steven . . . . . . . . . . . . . . . . . . . . . . . . . . .42 Luckett, Karen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Physician Life Care Planning . . . . . . . . . . . . . . . . . . . .57 Roughan & Associates at LINC, Inc. . . . . . . . . . . . . .83 Financial Services California Attorney Lending . . . . . . . . . . . . . . . . . . . .93 CPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88 EPS Settlements Group . . . . . . . . . . . . . . . . . . . . . . . .86 Farber, Patrick (Struct. Settlements) . .Inside Front Cover Fast Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Fund Capital America . . . . . . . . . . . . . . . . . . . . . . . . .45 RD Legal Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . .58 Ringler & Associates – Manny Valdez . . . . . . . . .12-13 Ringler & Associates – Michael Zea . . . . . . . . . . . . .74 Summit Structured Settlements . . . . . . . . . . . . . . . . . .20 The James Street Group (Structured Settlements) . . .46 Graphics/Presentations/Video Court Graphix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Courtroom Presentations . . . . . . . . . . . . . . . . . . . . . . .60 Executive Presentations . . . . . . . . . . . . . . . . . . . . . . . . .7 High Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Juris Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 Verdict Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78 Insurance Programs Lawyers Mutual Insurance Company . . . . . . . . . . . . .73 Lawyer’s Pacific Insurance . . . . . . . . . . . . . . . . . . . . .19 Matloff Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Narver Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
Consumer Attorneys Association of Los Angeles 800 West Sixth Street,#700 Los Angeles, CA 90017 (213) 487-1212 www.caala.org
ASSOCIATION OF LOS ANGELES
CAALA Consumer Attorneys
January 18, 2014 CAALA GALA – Installation & Awards Dinner Hosted Reception: 5:30pm Dinner & Program: 7:00pm Beverly Wilshire Hotel Beverly Hills January 30, 2014 What’s New in Tort & Trial: 2013 in Review Registration: 5:00pm Program: 6:00pm Beverly Wilshire Hotel Beverly Hills Board & Committee Meetings Executive Committee – CAALA Offices Downtown Los Angeles, 6:00pm Dec. 5, Jan. 9, Feb. 6, Mar. 6 Board of Governors – CAALA Offices Downtown Los Angeles, 6:00pm Dec. 12, Jan. 23, Mar. 20 Education Committee – CAALA Offices Downtown Los Angeles, 5:00pm Dec. 12, Jan. 23, Mar. 20
Investigators Hudson Investigations . . . . . . . . . . . . . . . . . . . . . . . . .31 Shoreline Investigations . . . . . . . . . . . . . . . . . . . . . . .98 Tristar Investigation . . . . . . . . . . . . . . . . . . . . . . . . . .101
New Lawyers Committee - CAALA Offices Downtown Los Angeles, 6:00pm Jan. 21, Feb. 18, Mar. 18
Legal Nurse Consultants Cross, Kathy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107 Nutris Consulting . . . . . . . . . . . . . . . . . . . . . . . . . . . .80
Orange County Trial Lawyers Assn.
Legal Research Quo Jure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 Legal Support Services 4 Corners Deposition Summaries . . . . . . . . . . . . . . . .87 ABC Virtual Offices . . . . . . . . . . . . . . . . . . . . . . . . . .33 USA Express Legal & Investigative Services . . . . . . .70 Medical & Dental Service Providers Buena Vista Pharmacy . . . . . . . . . . . . . . . . . . . . . . . .67 Doctors on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Injury Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Landmark Imaging . . . . . . . . . . . . . . . . . . . . . . . . . . .44 North Valley Eye Medical Group . . . . . . . . . . . . . . .78 Parehjan & Vartzar Chiropractic, Inc. . . . . . . . . . . . .28 Organizations CAOC – PAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
25602 Alicia Parkway, #403 Laguna Hills, CA 92653 (949) 916-9577 www.octla.org December 13, 2013 Holiday Luncheon 12:00-1:30pm Original Mike's Restaurant 100 S. Main Street Santa Ana January 2014 2014 Installation of Officers & Judicial Awards Program Balboa Bay Club Newport Beach
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CAALA Connection Center Connect with New CAALA Members: We welcome the following new members who joined CAALA during the month of October
CAALA Connection Center Law Offices of Farris Ain
Attorney at Law
Weil Quaranta McGovern, P.A.
Ambrose Law Group
Law Offices of John S. Hinman
Padilla & Rodriguez, LLP
The Cole Law Firm
Whittier Law School
UC Hastings College of the Law
Attorney at Law
Loyola Law School
Hadsell, Stormer, Richardson & Renick, LLP
The Sterling Firm
Loyola Law School
Law Offices of Carlos E. Needham
Attorney at Law
Attorney at Law
Kazanjian & Martinetti
Simmons Browder Gianaris Angelides & Barnerd LLC
Lauria Law Office
Ari Friedman Friedman Law Offices
Girardi & Keese
Jeffrey Sanger Sanger Swysen & Dunkle
Alexandra Steele Girardi Keese
Zoe Sussman Freiman Law
Eleonora Treystman Attorney at Law
Loyola Law School
Evans Law Firm, Inc.
Movaghar & Yamin PLC
Loyola Law School
The Law Office of Carlos E. Needham
Loyola Law School
Loyola Law School
Legal Nurse & Certified Medicare Set-Aside Consultant Decipher, summarize & organize medical records Prepare medical chronologies Medical bill review and audit
Kathy Cross, R.N., B.S., MSCC (805) 577-7851 www.deciphermed.com DECEMBER 2013
The Advocate Magazine â€” 107
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From the President Lisa Maki
Consumer Attorneys Association of Los Angeles
Last column – It’s bittersweet A “thank you” to those who understand and support the importance of CAALA’s mission My gratitude list is very long. I hope yours is too. CAALA is on my list right up there with life, freedom and liberty. Of course there is justice too. I am deeply grateful for the work you do. You keep us safe. You protect us. You fight for our constitutional right to a jury trial and for our court system. You understand the importance of CAALA’s mission of helping others in and inside of our CAALA family. I am especially grateful for CAALA. I hope you will all take a moment to recognize some of my favorite unsung heroes – the CAALA staff. Without you, we are nothing: Stuart Zanville, Executive Director Cindy Cantu, Senior Director of Education & Events Bill Smith, Finance Director Liz Hagan, Membership Manager Kwedi Gipson, Affiliate & Sponsorship Manager Margie Ruiz, Membership Administrator Martha Ruiz, Office Administrator And because of the hard work of our officers, board of governors and committees, we had a wonderful year with many new accomplishments. We continued to help our members navigate the changes of court consolidation by holding two seminars with Judge Daniel
PHILI 2011, CA 2003, Trial L
Buckley and other judges – one in February and a follow-up program in July. Our lasccourtreport.com Web site was updated and enhanced with judicial profiles of the new civil court judges. CAALA Vegas was our biggest and most successful convention ever. And because of its success we are able to pay it forward to our members by offering five free education webinars and three free seminars – including one with the fabulous Rick Friedman. We started CAALA Cares – a service program where members can volunteer at local service projects to benefit the homeless, children, women and others who need help in your neighborhood. Four service projects were held this year and together we made a difference. The Board of Governors kicked off the year developing a new vision statement for CAALA. After a long debate about CAALA’s mission, they came up with a few words that say it all: Empowering Plaintiff Attorneys to Achieve Justice. I hope we have empowered all of you this year. Wishing all of you the very best this year and the next. I am honored to have served as CAALA’s President. Thank you.
Team CAALA gives back In November, CAALA Members, family and friends, joined Team CAALA’s service projects in support of the Los Angeles Regional Food Bank and Optimist Youth Home & Family Services. Without volunteers, both organizations would not be able to fulfill their mission and effectively serve their communities. We thank every team member for participating in the following hands-on service projects that made a real impact on the community. Visit www.lafoodbank.org and www.oyhfs.org for volunteer opportunities and ways to give support.
Los Angeles Regional Food Bank Sort-A-Thon Project | November 2, 2013 Volunteers inspected, sorted and repackaged produce that will be served to low income individuals and families across Los Angeles County.
Geri Ditto and Samantha Parker with Doctors on Liens were volunteer painters.
Optimist Youth Homes & Family Services Beautification Project | November 9, 2013 Volunteers added life to the walls surrounding the new Optimist Charter School. Carrots anyone? Our volunteers were surrounded by fresh produce in the distribution warehouse. 108 — The Advocate Magazine
Team CAALA volunteers became painters for a day to help at-risk children.
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PHILIP MICHELS 2011, CAALA President 2003, Trial Lawyer of the Year
JIN LEW 2014, President-elect Korean American Bar Association
ELIZABETH A. HERNANDEZ CAALA Board of Governors
STEVEN B. STEVENS 2001, CAALA Appellate Lawyer of the Year
BRADFORD S. DAVIS, M.D. In-house Medical Director
California’s premier medical malpractice team
OVER TEN FIGURES IN VERDICTS & SETTLEMENTS 8-Figure Verdict
Spinal Cord Injury
7-Figure Arbitration Award
“The Law Offices of Philip Michels & 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
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For 31 years, Advocate magazine has served attorneys who represent plaintiffs in Southern California