In This Issue: 48 th Annual Meeting: Tradition & Change. Justice Bedsworth: Is Laughing More Fun Than Arguing?

Transcription

1 In This Issue: 48 th Annual Meeting: Tradition & Change Justice Bedsworth: Is Laughing More Fun Than Arguing? Discovery Where the Plaintiff s Legal Residency Is an Issue

2 Defense Comment Fall 2007

3 STAFF editor-in-chief Stephen A. Schram Editorial/Art Direction John Berkowitz A. D. C D E F E N S E Melissa Blair Aliotti Martin J. Ambacher Jack G. Angaran Jonathan C. Bacon Mike D. Belote Mark. G. Bonino Michael J. Brady Katherine Gallo Mary Gambino Contributors Peter O. Glaessner Brian Harrison Lonnie Haughton Michael Mordaunt Justin H. Pfrehm Todd A. Roberts Stephen A. Schram James M. Treppa Todd J. Wenzel ADC HEADQUARTERS Office 2520 Venture Oaks Way, Suite 150 Sacramento, CA Phone: (916) Fax: (916) adcnc@camgmt.com ADC HEADQUARTERS Staff Executive Director Jennifer Blevins, CMP jennifer@camgmt.com John Berkowitz Publications Director/Graphic Design john@camgmt.com Joseph Davis Special Projects joseph@camgmt.com Tricia Glanville, CPA Accountant tricia@camgmt.com Kim Ingersoll Membership/Education/Advertising kim@camgmt.com Melissa Piano Account Executive melissa@camgmt.com Stephanie Schoen Special Projects stephanie@camgmt.com Rebecca Venard Executive Assistant rebecca@camgmt.com The price of subscription is included in the membership dues. All other subscriptions are $ per year. The opinions and viewpoints expressed in the articles of the Defense Comment Magazine do not necessarily represent the opinions of, or reflect the official position of, the Association of Defense Counsel of Northern California and Nevada or the editors. ASSOCIATION OF DEFENSE COUNSEL OF NORTHERN CALIFORNIA AND NEVADA VOL. 22, NO. 3 / FALL 2007 Features 48 th Annual Meeting 7 Tradition & Change This year s meeting will include varied programs designed to satisfy the educational needs of our diverse membership, without abandoning some of the perennial favorites. Is Laughing More Fun Than Arguing? 14 This year s Keynote Speaker, Justice William W. Bedsworth, will remind us that laughter or for that matter life is more important than arguing or winning an argument. Substantive Law Committee Reports 18 Plus a look at the newly-reformed Insurance Liaison Committee Evaluating Wage Loss Claims 22 Where Plaintiff s Legal Residency May Be an Issue A timely look at non-resident alien discovery issues. Peter O. Glaessner Use and Misuse of Historic Building 28 Codes for Injury Trip and Fall Claims Issues with determining code violations at older buildings during the injury validation review. Lonnie Haughton The 1986 California Discovery Act 31 Analyzing the effectiveness of the discovery process after 20 years under this Act which dramatically changed the practice of law in the civil arena. Katherine Gallo Tip of the Cap Return of the Super Lawyers 36 Departments President s Message By Jonathan C. Bacon 4 California Defense Counsel (CDC) Report By Mike Belote 5 Trials and Tribulations Members Recent Jury Trials 40 Defense Comment would be pleased to consider publishing articles from ADC members and friends. Please send all manuscripts and/or suggestions for article topics to: Stephen A. Schram, Sedgwick, Detert, Moran & Arnold, One Embarcadero Center, 16th Floor, San Francisco, CA. Phone: (415) ; Fax: (415) ; stephen.schram@sdma.com. Fall 2007 Defense Comment

4 President s Message Revisiting the Insurance Liaison Committee It s hard to believe that we are well into the fall season and that we are putting the finishing touches on this year s Annual Meeting. With the coming of the Annual Meeting comes the realization that I will soon be completing my term as president of this Association, something I approach with mixed feelings. While I am happy to pass this responsibility to incoming president, Pat Tweedy (and my partners are happy to see me do it!), I will miss the responsibility and the challenge the presidency of this Association presents. I am thankful that I have one more year to enjoy as Immediate Past President and I look forward to assisting Pat, the other officers, and all of the outstanding board members with the tasks ahead. Jonathan C. Bacon 2007 ADC President At last year s Annual Meeting I stated in my speech that among my goals as president was to ensure that civil defense practitioners from all types of civil practice areas were welcome as members of this Association. It is important to our membership numbers, and the recognition we enjoy before the Judicial Council, the legislature, and among other defense counsel associations on a national level, that we encourage strong membership from the insurance defense community (the long-standing foundation of the Association s membership), as well as from the broadest possible range of other civil defense practitioners. It is true that the bulk of our membership devote the majority of their time to insurance defense practice, working with a broad array of insurance carriers with both local and national presence. Many of our members have expressed curiosity, if not concern, over what, to them, appears to be a decrease in recent years in the number of insurance industry representatives who are involved in ADC activities and who attend our seminars and Annual Meetings. When I consider the fact that so many of our members are engaged in insurance-based defense litigation, it has caused me to question why it appears that carrier involvement and participation in our Association has diminished over the years. Through candid discussions of this issue with some of my friends in the insurance industry, I have learned that many of them feel that the ADC has lost some of its relevance to insurance professionals. Coincidentally, past president, Doug Sears, was having similar conversations with some of his carrier clients and through those discussions, Doug raised the idea of resurrecting the Insurance Liaison Committee of the ADC. There had been such a committee of the ADC a number of years ago but it slowly dissolved in the 1990s for a variety of reasons. Although I have been a member of the Board of Directors for seven years, I was unaware that such a committee ever existed. As Doug and I discussed the feedback we were getting from our carrier clients, it seemed to be a no-brainer that this long-dormant committee should be reformed. Doug and I approached a number 4 Defense Comment Fall 2007 Continued on page 44

5 California Defense Counsel (CDC) Report Governor Acts on Key Legislation Michael D. Belote, Esq. California Advocates, Inc. Although some might find the analogy unappealing, the legislative process has been compared to a snake swallowing a squirrel, in the sense that a very large number of bills are introduced at the beginning of the year, and proceed to move slowly through the hearing process. (No cheap jokes will refer to the end product.). As this column is written, the California Legislature has consumed more than 3000 newly introduced bills for 2007, sending some 962 to the Governor for signature or veto. The state constitution provides 30 days to complete this unenviable task, or bills become law automatically without the Governor s signature. The arithmetically inclined might assume that if only 962 of more than 3000 bills were passed by the Legislature, more than 2000 must have died. The answer is not so simple. California s legislature operates on two-year sessions, and we are presently in the first year of the session. In the second year of the session, all bills which are not passed die when the legislature adjourns. But in the first year, some of the bills not enacted this year will carry over for possible enactment in Except for issues important to the citizenry generally, for ADC all of this civics discussion is only relevant to the extent that the bills relate to defense practice. Of the bills signed by the Governor thus far, probably the most relevant is AB 500 (Lieu) relating to telephonic appearances. This bill, effective on January 1, 2008, adds new Code of Civil Procedure Section 367.5, and repeals a series of obsolete and conflicting sections. The bill is intended to work together with changes to be adopted in statewide Rules of Court. The concepts incorporated in AB 500 were developed in a Judicial Council working group, made up of judges, court administrators, and representatives of CDC and the Consumer Attorneys. The intent is to establish reasonably uniform rules for telephonic appearances, but to retain judicial discretion to require personal appearances in appropriate, individual matters. The biggest change is to make case management conferences presumptively eligible for telephonic appearances, instead of presumptively ineligible, but only if the party has made a good faith effort to comply with existing meet and confer obligations, and has timely filed and served case management statements. Other matters specifically mentioned in the statute as eligible for telephonic appearances include trial setting conferences, law and motion matters other than motions in limine, discovery motions, and others. AB 500 was an excellent example of the various stakeholders in the judicial process working together collaboratively for a consensus product. The Governor s signature on the bill was therefore no surprise. Much less certain was the Governor s action on Continued on page 45 Fall 2007 Defense Comment 5

6 Tradition & Chan 6 Defense Comment Fall 2007

7 48 th Annual Meeting ge We are planning an entertaining and useful meeting for all of the members of the ADCNCN. This year s meeting will include a number of varied programs designed to satisfy the differing educational needs of our large and diverse membership, without abandoning some of the perennial favorite programs that cut across the boundaries of practice area and specialization. This year, as every year, the Annual Meeting also affords the best opportunity for the members to renew acquaintances with friends and colleagues, and even with some of our adversaries who have generously agreed to speak to the membership on many of the individual programs in order to provide a different and enlightening perspective. Beginning on December 13, 2007 a week later than usual- the setting is the grand St. Francis Hotel on Union Square at the epicenter of San Francisco shopping and dining. The holiday season and its decorations will be in full swing providing numerous opportunities for shopping, dining, or just plain sightseeing for the members and their families and guests to enjoy. There is no better time of year to be on Union Square in San Francisco. And of course, as we do every year, the Thursday evening President s Reception provides the single best opportunity to see everyone who is attending the Annual Meeting. At Friday s Grand Luncheon Justice William Bedsworth, our featured speaker, will give what promises to be a memorable talk. Both for those in this year s compliance group and for those of us who are just in need of or collecting continuing education credits, this year s programs will provide 8.75 units. Included will be the full Continued on page Fall 2007 Defense Comment 7

8 48 th Annual Meeting continued from page 7 six required units of specialized credit including the required hour of substance abuse, the required hour of bias and the required four hours of ethics credit. One of the new programs this year will be headlined by Justice Edward Panelli, who together with renowned plaintiffs counsel, Michael Bidart, and defense counsel, Jim Wagoner, will discuss emerging trends in California law on insurance, bad faith and punitive damages. This topic could rightfully be called: A view of California law from 36,000 feet, since it will be an attempt to map the future direction of California law, given the recent decisions in each of these areas. Jim Wagoner, from Fresno, describes the approach to the program topics as: A literal, focused reading of insurance policy provisions, or a top of the trees perspective on coverage? Expansion of the duty to defend coupled with more hammers for recalcitrant insurers or a relaxation of the defense duty coupled with a right to investigate? The emergence of the genuine dispute doctrine in contrast to bad faith is a matter of law under Delgado? Constitutional restrictions on punitive damages, jury instructions and awards? Where are we headed? One of the traditional favorite programs will be the annual cavalcade of new cases presented by Mike Brady, Jakki Wilson and Jack Angaran. Mike Brady of Redwood City, who has done this program for more than 30 years, says: New cases saying that in progressive continuing loss only the carrier on the risk when the loss starts pays others are off the hook! Ways to get your attorney s fees when you win UM arbitration cases. Insurer not obligated to pay attorney s fees awarded against a policyholder as costs. How a settling insurer can get a presumption in its favor when it sues a non-settling insurer. Plaintiffs attorneys get Brandt fees on appeal. Discoverability of reserves and reinsurance. Good news for insurers 8 Defense Comment Fall 2007 on punitive damages. Bad news for insurers on punitive damages. These cases and more were decided this last year by the California courts. A topic overlooked in previous seminars growing out of a new and increasingly active area in which the Association has just created a committee is the area of landlord liability. Laura Flynn from San Francisco has put together a large panel of experts to discuss how to resolve those troublesome cases. Laura describes the program: How can you settle a breach of warranty of habitability claim and what strategy should be employed? Advice and opinions will be provided by plaintiffs counsel, defense counsel, an insurance representative and Judge David Garcia, who literally wrote the book on landlord/tenant law. What dangers are there in not settling, even nominal cases, based on the attorney s fees and treble damage issues? Do early 998 offers provide a source of relief? This discussion will provide practice tips that will assist in the defense of any case where attorney s fees are in play. Two areas in which our members have historically been very active, but which have not received much attention at the recent meetings, are medical malpractice and landowner liability. This year, you will have a program in each area. Mike Mordaunt from Stockton, who organized the medical malpractice panel, describes it this way: I am sitting at my desk when a new file arrives referring me the defense of a local physician. At first reading, it is a usual case, but a look at the complaint reveals that the plaintiff is alleging elder abuse and seeking enhanced remedies and punitive damages. How to defend this case is changed by those allegations and the types of motions, discovery and experts are all altered. This panel will help and guide the practitioner through these kinds of cases and back toward the familiar and calm waters of MICRA. Continued on page

9 48 th Annual Meeting continued from page Mike Burke of San Francisco will moderate the worker injury panel that will try to solve the riddle that is the Privette decision: Despite six Supreme Court cases since Privette, significant ambiguity remain in the law. These have been exacerbated by the 1999 changes to the admissibility of OSHA regulations in civil cases. Further, despite attempts at clarification, the issue of retained control nearly always finds its way into the trial. This panel will shed some light on these complex issues with an open discussion by attorneys from both sides of the bar. One of our ethics panels will be headlined by Pamela Phillips and Michael Bradley, both of whom specialize in the area of conflicts and ethical problems that arise in the practice of law. Pam and Mike will focus on direct conflicts and the recent flood of cases from the Court of Appeal on this subject. Another traditional area that is the focus of one of the panels this year is Sports Torts. Despite the decisions of the courts relating to the doctrine of assumption of the risk, these remain dangerous cases. Chris Beeman from Pleasanton, Rich Schoenberger of the Walkup office in San Francisco, and Mike Ney from Walnut Creek will be on a panel. Chris describes his group as follows: The Wide World of Sports brought us the thrill of victory and the agony of defeat. Jury trials bring the same adrenalin rush. Join a panel of hasbeen and wannabe athletes to review the wide range of litigation surrounding participation in all sorts of athletic endeavors. In addition to analyzing the existing state of the law on assumption of the risk as it applies to sports and recreational activities, the panel will discuss waivers, immunities and litigious parents. Two areas of new problems that have not yet even been defined by the courts of appeal involve black boxes in motor vehicles and the representation of dissolved corporations. Brian Powers from Sacramento and black box expert, Rusty Haight, will discuss the legal implications of attempting to use evidence from these devices in litigation. Brian says: The devices were first put in motor vehicles on a test basis during the 1970s to collect data. In the 1990s, manufacturers began installing the event data recorders as part of the airbag system. An incredible amount of pre-crash and post-crash information is stored and can be downloaded. Most consumers are unaware of the presence of a device recording their conduct. California has passed a law requiring disclosure. Whether you re interested in the use of these devices in your cases, or frightened of government intrusion, or just a parent who wants to check on your children, you will enjoy this discussion. Past-president Ric Blumhardt and board member Chris Wood, and Jim Sinunu will discuss the ethical and legal problems involved in representing corporations that are suspended, dissolved or have declared bankruptcy. Chris Wood describes the program as follows: What to do, what to do? You re defending your client corporation when it declares bankruptcy, or dissolves, or is suddenly suspended. Do you litigate as usual or has the field of litigation been rearranged? Is your representation terminated or are you stuck inside of Mobile with the Memphis Blues again and can t find your toes? It looks like the beginning of the end for your client, but surprisingly, you re only at the beginning. Tort liability may survive. Strict liability may live on. Insurance coverage is a wild card. This presentation will provide the how-to defend a suspended, dissolved or bankrupt corporation. Finally, as part of the ethics credit, longtime member, Jon York, will be joined by Bob Arns to present what is widely anticipated to be an entertaining program on professionalism during trial. As his partner, Margie Allen, the moderator of the panel, explains: The trial of a lawsuit includes the juggling of many complex issues. One issue that should get more attention but is sometimes lost in the heat of battle is professionalism. Two experienced trial lawyers will address successfully trying cases within the parameters of maintaining professionalism, collegiality and courtesy with their opponents. In addition, we will have Judge Nichols from Santa Clara County moderating a panel on pros and cons of attempting to use expert testimony in certain casualty cases. Melissa Aliotti from Sacramento will be joined by George Yaron and Jed Riddle to discuss the new insurance programs and policy language and the effect it is having on the settlement of construction defect claims. There will be a program on law firm bias and how the emerging family leave acts effect that, and a number of other interesting topics. We look forward to seeing at the 48 th Annual Meeting. We know you will find it enjoyable and educational. Fall 2007 Defense Comment 9

10 Registration Fees: Regular On-Site ADC Members $545 $570 Claims Personnel $370 $395 Non-Member Attorneys $795 $835 Young Lawyer (ADC member, in practice up to five years) $385 $420 Reception Companion Ticket $150 $150 Luncheon Companion Ticket $125 $125 Name/State Bar ID: Companion s Name for Reception/Luncheon: Company/Firm: Address: City/State/Zip: Phone: Fax: Luncheon Table Reservation: Please reserve table(s). (You must register 10 people to reserve a table.) Payment Information: Enclosed is my check for $ Please charge $ to my MasterCard Visa Card Number: Expiration Date: Signature: Registration Form 48 th Annual Meeting December Schedule of Events Thursday, December 13, :30 am 3:15 pm Registration Open Italian Room 7:30 am 3:15 pm Vendor Faire Open Colonial Room 7:30 am 8:45 am Continental Breakfast Vendor Faire Area Colonial Room 8:15 am 8:30 am Welcome and Annual Business Meeting Grand Ballroom A welcome to the Annual Meeting by our president, Jon Bacon, followed by the election of the 2008 ADCNCN Officers and Board of Directors. First Morning Session 8:30 am 9:30 am Track A: 2007 The Year In Review (One hour General MCLE credit) Grand Ballroom Our expert panelists, Mike Brady, Jakki Wilson, and Jack Angaran, review the major cases decided during 2007 tracking the changes and trends in California and Nevada law. A perennial favorite and most useful program. Jack Angaran Georgeson, Thompson & Angaran Michael J. Brady Ropers, Majeski, Kohn & Bentley First Morning Session Jacquelyn K. Wilson Samuelson Wilson & Roe 8:30 am 9:30 am Track B: Substance Abuse in the Legal Profession (One hour Substance Abuse MCLE credit) California East Bob Resner, has for the last eight years, served as the statewide coordinator and San Francisco representative for the Other Bar, a non-profit organization that helps attorneys and judges deal with the problems of alcohol and substance abuse. He explains the nature of addiction, the help that is available, and tells the compelling story of one lawyer s journey to recovery. Robert Resner The Law Offices of Robert Resner 9:30 am 9:45 am Break Name as Appears on Card: Credit Card Billing Address: City/State/Zip: Make checks ADC payable and 2520 Venture Oaks Way, Suite 150 mail to: Sacramento, CA (916) Fax: (916) Defense Comment Fall 2007

11 Schedule of Events Thursday, December 13, 2007 Second Morning Session 9:45 am 10:45 am Track A: Montrose Forms, Allegations of Discovery, WRAPS, OCIPS and Construction Liability Decoding the New World of Construction Insurance (One hour General MCLE credit) Grand Ballroom Hear from highly-regarded defense and coverage counsel as these three experts in construction defect litigation unravel and explain the new insurance programs, limitations on coverage, pleading anomalies and their impact on construction defect litigation and settlement. Melissa B. Aliotti Read & Aliotti 10:45 am 11:00 am Vendor Break Colonial Room George D. Yaron, Jr. Yaron & Associates Second Morning Session Second Morning Session John E. (Jed) Riddle Lamore, Brazier, Riddle & Giampaoli 9:45 am 10:45 am Track B: Liens Liability and Leverage (One hour General MCLE credit) California East David Rosenbaum reprises his excellent program on medical liens and the opportunities and problems that arise from them. Understanding these issues is essential to defending personal injury claims. David Rosenbaum McDowall & Cotter 9:45 am 10:45 am Track C: Leave of Absence Law and Law Firm Bias (One hour Bias MCLE credit) California West Four employment lawyers discuss the alphabet soup of laws including the Family Medical Leave Act, the California Family Rights Act, and Pregnancy Leave and how they affect the way your law firm deals with its employees. They explain how these laws interact with the Americans with Disabilities Act and the Fair Employment and Housing Act, and help to unravel your obligations. Todd A. Roberts Ropers, Majeski, Kohn & Bentley Erica Kelley Littler Mendelson THIRD Morning Session Tammy Wood Maire & Beasley 11:00 am 12:00 noon Track A: Sports Torts Liability and Assumption of the Risk (One hour General MCLE credit) Grand Ballroom Greg Simonian Clapp Moroney, Bellagamba & Vucinich Chris Beeman and Mike Ney will be joined by Walkup partner, Rich Schoenberger, to discuss liability for injuries suffered by participants in a variety of athletic activity, defenses such as assumption of the risk, and the risks of taking these cases to trial, including commentary on the jurors reactions to the injuries and circumstances. Chris Beeman Clapp, Moroney, Bellagamba & Vucinich Michael J. Ney McNamara Dodge Ney Beatty, et al. Richard H. Schoenberger Walkup Melodia, Kelly, Wecht & Schoenberger THIRD Morning Session 11:00 am 12:00 noon Track B: Keeping Elder Abuse Out of Your Medical Malpractice Case (One hour General MCLE credit) California East Three experienced trial lawyers explain strategies for keeping a medical malpractice case within the boundaries of MICRA law and procedure and the dangers presented by expanding the claim to include elder abuse causes of action. Scott Gassaway Wilke Fleury Hoffelt, et al. H. Patrick Canvel Gordon & Rees THIRD Morning Session Thomas J. Doyle Scheuring, Zimmerman, Scully, Tweedy & Doyle 11:00 am 12:00 noon Track C: Conflicts of Interest Who is Your Client? (One hour Ethics MCLE credit) California West Two renowned lawyers, Pam Phillips and Mike Bradley, discuss conflicts of interest and the duties of the lawyer who is contacted for representation. They will walk you through California s numerous conflicts rules and explain what the rules require, when to decline representation, what to do when you accept, and when you must remain silent about the request itself. Pamela Phillips Howard Rice Nemerovski, et al. 12:00 noon 1:45 pm Lunch on your own Michael S. Burke Vogl & Meredith Michael Bradley Murphy Pearson, Bradley & Feeney First Afternoon Session 1:45 pm 2:45 pm Track A: Privette, Toland & Beyond: Perspectives from Both Sides of the Bar (One hour general MCLE credit) Grand Ballroom Mike Burke will explain the defense side and Morgan Smith will explain the plaintiffs side. Tad Shapiro will referee this free-flowing discussion regarding the recent cases and practical trial problems inherent in worker injury cases. Morgan C. Smith The Arns Law Firm First Afternoon Session Tad Shapiro Shapiro, Galvin, Shapiro, Piasta, et al. 1:45 pm 2:45 pm Track B: Experts Where is the Boundary Line? (One hour general MCLE credit) California East Judge Leslie Nichols will moderate as three experienced trial lawyers discuss the pros and cons of expert testimony and strategies for maximizing the value of that testimony with the focus on human factors experts and scope of the testimony that may be admissible. Honorable Leslie Nichols Santa Clara Superior Court William Gavin Gavin & Cunningham Wilma J. Gray McNamara, Dodge Roger F. Allen Ericksen, Arbuthnot, et al. Fall 2007 Defense Comment 11

12 Schedule of Events Thursday, December 13, 2007 First Afternoon Session 1:45 pm 2:45 pm Track C: Trial Tactics and Ethics (One hour Ethics MCLE credit) California West A trial requires juggling complex issues. One such issue that is sometimes lost in the shuffle is professionalism. Margie Allen moderates a discussion between two experienced trial lawyers from the opposite sides of the bar regarding successfully trying cases without losing sight of either professionalism or collegiality. Jon H. York York, Hanawalt & Brock 2:45 pm 3:00 pm Final Vendor Break Robert S. Arns The Arns Law Firm Second Afternoon Session Margaret Allen York, Hanawalt & Brock 3:00 pm 4:00 pm Track A: Mediating and Settling Tenant Habitability Claims (One hour general MCLE credit) California West Recognized expert and Rutter Group author, Retired Judge David Garcia, Raquel Fox, a tenants rights attorney and Todd Wenzel a defense attorney, together with Joyce Spies, a claims representative, discuss strategies and tactics that have helped settle landlord liability disputes before the litigation costs take over the case. Moderated by Laura Flynn. Honorable David Garcia, Judge, Ret Joyce Spies Colony Insurance Todd Wenzel Ropers, Majeski, Kohn & Bentley Laura Flynn Low, Ball & Lynch Second Afternoon Session Raquel Fox The Tenderloin Housing Clinic 3:00 pm 4:00 pm Track B: Vehicle Event Data Recorders Investigative Tool, Safety Feature or Spy (One-half hour Ethics MCLE credit and one-half hour general MCLE credit) California East Expert Rusty Haight, the black box guru, and defense lawyer Brian Powers, explain the uses and abuses of the event data recorders and the limits of the information available and limits on the collection of the information, including ethical questions relating to privacy and safety issues. J. Brian Powers Powers & Miller W.R. Rusty Haight Collision Safety Institute Third Afternoon Session 4:15 pm 5:15 pm Track A: The View from the Pinnacle Trends in California Insurance, Bad Faith and Punitive Damage Law (One hour general MCLE credit) California West Retired Supreme Court Justice Edward Panelli, top plaintiffs trial lawyer Mike Bidart, and top defense lawyer Jim Wagoner, discuss the recent trends and anticipated future direction of California law in these important and highly dangerous areas of litigation. Honorable Edward A. Panelli California Supreme Court (Ret.),. and JAMS. Third Afternoon Session 4:15 pm 5:15 pm Track B: Keeping the Wolves at Bay Representing the Suspended, Dissolved or Bankrupt, Dissolved Corporations (One-half hour Ethics MCLE credit and one-half hour of general MCLE credit) California East What to do? You are defending your client corporation when it declares bankruptcy, or dissolves or is suddenly suspended Do you litigate as usual, or has the field of litigation been rearranged? Is your representation terminated, or are you stuck inside a mobile with the Memphis Blues again and can t find your toes? If it looks like the beginning of the end for your client, surprisingly you are at the beginning. Tort liabilities may survive. Strict product liabilities may live on like a toxic groundwater plume. Insurance coverage is a wildcard. This presentation will provide the how-to defend a suspended, dissolved or bankrupt corporation. It will cover the rules of representation, case law, the CA Corporation Code; successor liability issues and who insures what for when. W. Ric Blumhardt Archer Norris Michael J. Bidart Shernoff Bidart & Darras Christopher W. Wood McKenna Long & Aldridge 6:00 pm 8:00 pm President s Reception Grand Ballroom James P. Wagoner McCormick Barstow James Sinunu Adams, Nye, Sinunu Our traditional celebration is one of the highlights of the ADCNCN Annual Meeting and for the Holiday Season. This, along with Friday s luncheon, are the two events not to be missed. 12 Defense Comment Fall 2007

13 Schedule of Events Friday, December 14, :30 am 12:00 noon Registration Open Italian Room 7:30 am 9:00 am Continental Breakfast Italian Room 8:00 am 8:30 am Substantive Law Committee Meetings Construction Yorkshire Employment Boardroom Insurance Cambridge Landowner Liability Victorian Medical, Health Care and Malpractice Hampton Public Entity Kent Toxic Torts Essex Transportation Bristol First Morning Session 8:45 am 10:00 am Legislative Update (One and one-quarter hours general MCLE credit) Colonial Room Mike Belote, California Defense Counsel Legislative Advocate, will present a review of the 2007 legislation and those matters pending for consideration during the 2008 session. Be sure to join us for this always interesting tour through the year s legislation. Michael D. Belote California Advocates and CDC Legislative Advocate 10:00 am 10:15 am Break Italian Room Second Morning Session 10:15 am 10:45 am Electronic Discovery What is on California s Horizon? (One-half hour general MCLE credit) Colonial Room Past-President Peter Glaessner, who has been carefully tracking the electronic discovery issues, explains the matters under consideration both by the Legislature and by the Judicial Council. These rules will be here before we know it. Do not miss this preview of what they may entail. Peter O. Glaessner Lombardi Loper & Conant Third Morning Session 11:00 am 12:00 noon What I Learned at the Circus and How It Will Help Me in My Next Trial (One hour of Ethics MCLE credit) Colonial Room Celebrity trials have become part of every day American life. Whether it is the mysterious death of Anna Nicole Smith, a murder at Phil Specter s home, or a U.S. Senator caught in a rest room. These trials occupy the attention of the entire country. What ethical considerations are involved in handling high exposure litigation? Our panel of experts will explain. Daniel F. Quinn Quinn & Kronlund 12:15 pm Annual Meeting Luncheon Keynote Speaker: William Bedsworth, Justice of the California Court of Appeal, Fourth Appellate District Grand Ballroom Bill Bedsworth is a native Californian with roots in both Southern California (undergraduate degree at Loyola University) and Northern California (law degree at Boalt). After graduation from law school, he joined the Orange County District Attorney s Office, where he served as a felony trial deputy and ultimately as the managing attorney in charge of the appellate division of that office. He has argued cases before the Court of Appeal and before the California Supreme Court. In addition to his law-related activities, Bill Bedsworth has published a great deal in the field of legal humor. His monthly humor column, A Criminal Waste of Space, is nationally syndicated. As both an author and humorist, he has spoken to such diverse groups as the American College of Trial Advocates, the Nebraska State Bar, and the California Association of Hostage Negotiators. Not content with these activities, Justice Bedsworth also works for the National Hockey League as the goal judge for the Mighty Ducks games. We are fortunate to have Justice Bedsworth to speak to us for the luncheon. His speech focuses, not on the law, but on the rest and more important part of our lives. MCLE Credit Information This annual meeting has been approved for Minimum Continuing Legal Education credit by the State Bar of California and Nevada. The total available credit is 8.75, including specialty credits sufficient to satisfy the California triennial Specialty Credit Requirement (4.0 hours Ethics, 1.0 hour Bias and 1.0 hours Substance Abuse). Be sure to sign in for your MCLE credit in the Italian Room across from the Registration Desk. Fall 2007 Defense Comment 13

14 IS LAUGHING MORE FUN THAN ARGUING? Those outside our profession may believe that lawyers would rather argue than laugh. Most attorneys know better. However, sometimes even lawyers need to be reminded that laughter or for that matter, life outside the law is more important than arguing or winning an argument. This year s speaker at the 2007 Annual Meeting does know that there are more important aspects to life than lawyering. And, he will share his insights and priorities with us in a presentation that he has entitled Stop And Eat The Roses. Sounds serious with perhaps a soporific quality. Not when the speaker is Justice William W. Beds Bedsworth, California Fourth District Court of Appeal, who another out-of-state appellate justice has called the Dave Barry of the judiciary. Many ADC members know Justice Bedsworth as the author of a monthly column appearing in legal and lay press entitled A Criminal Waste of Space. While the California Newspaper Publishers Association twice has honored Justice Bedsworth for his writing with an annual award in its Commentary and 14 Defense Comment Fall 2007 Criticism category, his writing started and continues with large doses of humor. About 25 years ago, while working as a prosecutor (in Orange County), I was sitting in a calendar call when a defense attorney started talking about oral transverse of the search warrant, recalls Justice Bedsworth, describing how he remembers the genesis of his column. So, I turned to the prosecutor sitting next to me and asked him if the defense counsel was talking about an Oklahoma preacher. No, it s something the dentist charges you $500 for, his fellow prosecutor responded. Later that same night, Justice Bedsworth (call me Beds ) sat down and wrote an article entitled Criminal Law Specialist And Screen Door Repairman Test that consisted of 25 multi-choice questions. He sent the article to the state bar journal. Months passed. He heard nothing about his unsolicited submission. Then, the journal editor contacted Beds and told him that the journal liked the article very much, but the editor just was not sure if a humorous article should be published by the state bar. It was. The one time submission turned into an avocation. Five years later, or about 20 years ago, Beds started writing the monthly column. It s more humor than commentary or criticism, but sometimes I do comment or criticize, Beds said. Like the humorist with whom he is compared, Beds assembled 30 or so of his best columns into a book titled A Criminal Waste of Time. Those regular readers of Beds columns know that the real pearls of humor are not within the main text, but in the footnotes. One regular reader said the footnotes are the best part of Beds columns. Beds, himself, says that the footnotes resulted because he is incapable of linear thought, and has an aversion to multiple re-writes. Sometimes, I d think of something funny after writing the article, and I don t want to re-write or devote a whole paragraph to developing the thought, so I ll drop-in a foot note. So, can we expect to roll in the aisles with laughter at the St. Francis hotel in December when Justice Bedsworth speaks? Please, don t tell your members Continued on page 15

15 Justice William Bedsworth continued from page 14 that I m funny because when I stand to speak, they ll be sitting in their seats with their arms folded, staring and daring me to make them laugh, our Annual Meeting speaker said. The subject of his speech is serious in that Justice Bedsworth intends to reflect on why life outside the law is important. It is a subject that he began to consider as he reached his early 50s. About six years ago, he coalesced his ruminations into a speech that he presented to an ABA gathering. The reception to his speech was so enthusiastic, that he has been invited many, many times to present it all over the U.S. and, in two weeks, in London. It s about balancing your life and work, said Beds. As to his life outside his work, Beds is known for his fondness for Country music and dress, and hockey. My mother used to tell me you re from southern California, not El Paso, so why are you wearing jeans and boots, Beds said. But I got a lot of relatives in the southwest and southern United States who influenced me. When I became a judge, I finally could wear cowboy boots to my office, which I would not allow myself to do as a prosecutor, Beds said. And hockey? He is such a fan, that for almost 13 years, Beds was the full-time goal judge for the Mighty Ducks National Hockey League team that plays in Orange County. For those of us who are not students of the icy sport, the goal judge traditionally sat in a glass booth right behind the goal net at one end of the rink. When one team or another scored a goal by flicking the puck into the net, the goal judge would turn-on a red light to signal a point scored. Those fans right around the goal might see the goal, but thousands of other fans looked for the red light to confirm the score, explained Beds. These days, the goal judge has become, as one Canadian sports commentator wrote, the most useless, irrelevant position in sports. It s the most useless, irrelevant position in the universe, said Beds, laughing. With a television camera placed above goal nets, instant video replay available to referees skating the ice and Justice William W. Bedsworth (center) not only decides appellate issues in the Fourth District Court of Appeals, but sits as a judge for NHL hockey games. Here, at the recent pre-season game of the Anaheim Mighty Ducks, Justice Bedsworth acts as the penalty box judge. Not doubt Justice Bedsworth is wearing cowboy boots with his suit just as he will be when he speaks at this year s Annual Meeting. television broadcasting virtually every game, the goal judge s job has become less and less important. Now the goal judge in Anaheim, where the Ducks play, does not sit right behind the goal, but at the back of the first level of seats well above and away from the net. Nonetheless, Beds continues to act part-time as a hockey official, including an upcoming stint where Beds will be a penalty box official for the Ducks opening match in London, presumably after he finishes giving his Stop And Eat The Roses speech at an ABA gathering. It was his interest in balancing his life outside and inside the law that lead Beds to cut-back on deciding ice rink issues. He calculated that each year he spent 225 hours per year, or more than a full month, watching pucks fly into nets. It s a great hobby, but I wanted to start doing more writing and perhaps playing a little more golf. As to his life within the law, Beds calls his work an amazingly good job. Huh? On a Monday morning, when the Justice stopped working to describe the topic of his address to the ADC Annual Meeting, he faced a week where he would sit and listen to oral arguments on 22 cases. He spent his weekend reading briefs. I have the time to do the job right, said Justice Bedsworth. He has up to 90 days to study the issues presented and decide a case. More importantly, California appellate justices, including Justice Bedsworth, enjoy a rare benefit. California hires career appellate attorneys to assist the appellate justices. Most appellate attorneys love the law, but for various reasons do not want to work in private practice after experiencing it. The attorneys assisting the justices research issues in pending cases and prepare memoranda of the law. More importantly, remarked Justice Bedsworth, the attorneys have a variety of legal backgrounds so that he can discuss potential practical consequences of deciding a case. They help me avoid the Doctrine of Unintended Consequences, the Justice said. It s a job that the Justice suspects that, if he was not careful, he would keep until he was too old to focus on the words on paper. But, Beds is careful about balancing his enthusiasms for his amazingly good job with his interests outside the law. Something that we should learn about, and laugh about, at this year s Annual Meeting. Fall 2007 Defense Comment 15

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18 Recently, President Jonathan Bacon and Past President Doug Sears convened the inaugural meeting of the newly formed ADCNCN Insurance Liaison Committee with five insurance carrier representatives, who work in Northern California. The purpose of this Committee is to reach-out to insurance carriers and to re-establish our valued relationship with them, Mr. Bacon said at the meeting (and elsewhere in this publication). Even at the first meeting, it became clear that there was more than socializing on the minds of the attendees. Very soon, attorneys and carriers began a lengthy discussion on the issue of whether the amount of a personal injury plaintiff s verdict should include the amount of medical expenses billed or paid. (See, Hanif/Nishihama Reductions After Greer v. Buzgheia article by Gregory D. Pike and Ryan Vlasak, Defense Comment magazine, Summer 2007 ed.) This discussion lead to the subjects of what, if anything the ADC could do to prevent crafty plaintiffs attorneys from circumventing Hanif/Nishihama reductions, and the ADC s lobbying efforts through the California Defense Counsel (which is the political arm jointly operated by the Association of Defense Counsel of Northern California and Nevada and the Association of Southern California Defense Counsel) on legislation to support the common law. Several insurance representatives at the Committee meeting emphasized that this subject was an example of the type of information useful to them in their business of both underwriting insurance and adjusting claims; that is, what are the trends in the law impacting insurance. It is defense counsel who are aware of these trends both from their practice and involvement in ADC functions and lobbying activities. Other subjects that would benefit the insurance industry also were discussed at the inaugural meeting. The attendees discussed the possibility of a seminar where less experienced attorneys could learn from insurance industry professionals about the business of insurance, reporting guidelines and billing do s and don t s. There was a suggestion to conduct a round table discussion by plaintiffs attorneys, defense counsel, judges, special masters and claims representatives on issues surrounding the use of special masters for discovery and mediation. Co-Chairs Sears and Bacon intend to convene the Insurance Liaison Committee four times a year with the next meeting during January All ADC members are invited to suggest topics for discussion at committee meetings or subjects for seminars attended by both defense counsel and insurance representatives. You may contact Mr. Sears (dsears@msll.com) or Mr. Bacon (jbacon@archernorris.com) with your ideas and suggestions. Those attending the inaugural meeting were: Vicki Campbell, NAIC; Deveney Totten, St. Paul Travelers; Margie Lariviere, CSAA; Lola Hogan, Sequoia Insurance; Patrick Fuller, AIG; and ADC members Jon Bacon, Doug Sears, Pat Beasley, Mark Bonino, Stephen Schram and Pat Beasley. Oakland / San Francisco Bay Area Specializing in Deposition Reporting Complimentary Condensed Transcripts and Disks 30 Reporters Realtime Reporters 15 Conference Rooms Copy Facility Free Wireless Internet Out-of-Town Arrangements Document Depository On-line scheduling / transcript requests ONE KAISER PLAZA, SUITE 505 OAKLAND, CA (510) Defense Comment Fall 2007

19 Construction Melissa Aliotti, Chair David Daniels, Vice- Chair David Daniels, co-chair of the Construction Law Committee, is chairing ADC s Basic Training series, the ever-popular 8-week program currently underway in Sacramento this year. This series was created for the purpose of providing our young lawyers with a solid and consistent foundation from which to build strategies for defense of the broad variety of lawsuits facing our clients. Meanwhile, planning is underway for the Construction Law program at the Annual Meeting, to be held at the Westin St. Francis again this year, December You may have missed the early bird special, but there is still plenty of time to register for this not-to-be-missed meeting. The construction panel will address coverage issues in construction litigation in Nevada and California, with an emphasis on the myriad ways OCIP s and CCIP s (wrap policies) affect our developer, contractor, and subcontractor clients. Also - don t miss the subcommittee meeting to convene during the annual meeting. Help us plan 2008 s full-day program, to be held in California this time. See you in December! Melissa Blair Aliotti, Chair, Construction Law Committee. Employment Todd Roberts, Chair Erica Kelley, Vice-Chair Earlier this year, Todd Roberts, Chair of the Employment Substantive Law Committee, wrote a letter brief to the California Supreme Court on behalf of the ADC urging the court to review the Fourth District Court of Appeal s decision in Jones v. The Lodge at Torrey Pines, which held, among other things, that a supervisor may be held personally liable for acts of retaliation prohibited by the Fair Employment and Housing Act. On June 13, 2007, the Supreme Court granted review. The ADC will seek leave of court to file an amicus brief on behalf of the employer, Respondent The Lodge at Torrey Pines. The Committee also will be presenting a program at the ADC Annual Meeting on leaves of absence, the elimination of bias in the workplace, and the interrelationship of State and Federal laws in these areas. Interested in becoming involved in the ADC? We are actively seeking authors to write articles to be published in Defense Comment magazine. Additionally, the Committee will be presenting a half-day program in the first quarter of 2008 on a variety of topics. Please contact Todd Roberts at troberts@ropers.com if you have an interest in writing an article or being part of the Committee programs. Insurance Lawrence Guslani, Chair Brian Harrison, Vice-Chair The Insurance Substantive Law Committee presented a Seminar on September 21, 2007 regarding Update on Recent Case Law in the Area of Insurance Coverage. On the panel were Lawrence M. Guslani of Hayes, Davis, Bonino, Ellingson McLay & Scott, LLP, Brian Harrison of Sedgwick, Detert, Moran & Arnold LLP and Lisa Pan of the Law Office of William J. Diffenderfer. Any suggestions or topics for additional CLE programs or brown bag lunch seminars are welcome. Please send your suggestions to Lawrence Guslani (lguslani@hayesdavis.com) or Brian Harrison (brian.harrison@sdma.com). Landowner Liabaility Todd Wenzel, Chair Laura Flynn, Vice-Chair The Landowner Liability Substantive Law Committee presented a half day seminar at the St. Francis Hotel in San Francisco on June 29, 2007 on Litigating Residential Landlord Tenant Disputes. The seminar panelists were three experienced landlord-tenant practitioners, Mr. Jeffery Woo, Mr. Andrew Klimenko, and Mr. Kurt Bridgman. The well attended audience learned some valuable litigation tips in this active litigation area. The Landowner Liability Sub-Committee is teaming up with the Toxic Tort subcommittee in presenting a brown bag seminar on Mold Lawsuits, with an industrial hygienist speaker and medical allergist speaker. This jointly promoted seminar will take place on October 30, 2007 in Oakland. Check the ADC Web site for all meeting announcements; www. adcnc.org.. To complete the Landowner Liability Sub-Com m it tee s f i rst yea r, t he committee will be presenting former San Francisco Superior Court judge, The Honorable David Garcia, to discuss Settling Habitability Claims in Landlord Tenant Disputes on December 13, 2007, during this year s Annual Meeting. This event will conclude a successful first year of this sub-committee. Medical Health care and Malpractice Michael Mordaunt, Chair Dominique Pollara, Vice-Chair The Medical Malpractice and the Healthcare Subcommittee will be putting on a one-hour seminar at the annual meeting in San Francisco. The seminar will deal with how to keep Elder Abuse out of your Medical Malpractice case, a problem commonly faced by malpractice defense attorneys. We have an excellent panel of experienced defense counsel to discuss this issue, including Rick Cancel of Gordon & Rees, Tom Doyle of Schering Zimmerman Scully Tweedy & Doyle, LLP and Scott Gassaway of Wilke, Fleury, Hoffelt, Gould Continued on page 20 Fall 2007 Defense Comment 19

20 Substative Law Committees continued from page 19 & Barney LLP. The panel will provide insight on defeating elder abuse claims from the initial appearance through trial. It promises to be an interesting presentation on a problem experienced on a regular basis by defense attorneys. The subcommittee will also hold a meeting at the time of the annual meeting. The Subcommittee will meet on December 14, 2007 at 8:00 a.m. at the St. Francis Hotel. Please plan on attending the annual meeting and contributing your suggestions on how to make this a better committee. If you have additional suggestions, please feel free to contact Mike (mmordaunt@ riggiolaw.com) or Dominique (dap@szs. com) with your comments, ideas and suggestions Public Entity Martin Ambacher, Chair The Public Entity Substantive Law Committee continues in its pursuit to provide up to date information for the public entity practitioner through monthly case law reviews and posting of information on the ADCNC Forums. We are working on scheduling a seminar for early 2008 general tort claims, public information requests, and police practices and misconduct cases. We will also be working with the Landowner Liability Substantive Law Committee on a seminar regarding ADA issues. If you would like to get involved in planning, have ideas for seminars, or would like to share information regarding recent trials or novel issues you have had to address, please contact me or John Vrieze. Toxic Torts Chris Wood, Chair Meg Gambino, Vice-Chair The Toxic Tort Committee will meet once again this year during the ADCNCN Annual Meeting. Please plan to join us in San Francisco at the Westin St. Francis Hotel on Friday morning, December 14, prior to the start of that day s sessions. We will discuss recent developments in toxic tort law and plan events for the coming year; so be sure to come with ideas for the 2008 Toxic Tort Committee Spring Seminar series. With input from our talented members, we expect that next year s seminars will rival the tremendous success of our 2007 series on asbestos litigation. The meeting will be led by committee chair, Chris Wood, and co-chair, Meg Gambino. October 30th, the Toxic Tort Committee will co-sponsor a brown bag seminar with the Landowner Liability Substantive Committee on mold claims. The Toxic Tort Committee meets approximately once a month to discuss recent developments and to plan its useful and popular seminars. Contact Chris Wood, at McKenna Long & Aldridge LLP, (415) , or Meg Gambino, at Schiff Hardin LLP, (415) , if you have questions about this committee or if you have suggestions for future seminar topics. Transportation Keith Chidlaw, Chair Jim Treppa, Vice-chair The Transportation Committee of ADC anticipates much more future activity. The committee is currently planning a brown bag seminar and are considering a half-day seminar for early The brown bag seminar will consist of a discussion from experienced trial and litigation attorneys in the field on the proper way to take depositions of sceneof-the-accident emergency personnel and CHP Officers that perform accident reconstruction as a part of their accident reports. One of our scheduled speakers is a former CHP Officer turned trial attorney. This will take place in late October or early November Our potential half-day seminar will be discussed at the Committee Meeting to be held during the ADCNC Annual Meeting in December. We encourage all attorneys practicing in the transportation industry to attend. We encourage all attorneys practicing in the field of transportation law to get involved in the committee. Ideas for seminar topics, articles and other areas of interest can be forwarded to Jim at Jtreppa@bledsoelaw.com or to Keith at kdc@szs.com. Substantive Law Committees Hoping to tap into someone else s knowledge? Join one of the ADC s Substantive Law Committees. The current chairs for the Substantive Law Committees are as follows: Construction Melissa Aliotti (Chair) Read & Aliotti (916) maliotti@readaliotti.com David Daniels (Vice-Chair) Gurnee & Daniels LLP (916) david@gurneelaw.com Insurance Lawrence Guslani (Chair) Hayes, Davis, Bonino, Ellingson, McLay & Scott (650) Lguslani@hayesdavis.com Brian Harrison (Vice-Chair) Sedgwick, Deter, Moran & Arnold (415) brian.harrison@sdma.com Employment Todd Roberts (Chair) Ropers, Majeski, Kohn & Bentley (650) troberts@ropers.com Erica Hermatz (Vice-Chair) Littler Mendelson (408) ehermatz@littler.com Landowner Liability Todd Wenzel (Chair) Ropers, Majeski, Kohn & Bentley (415) twenzel@ropers.com Laura Flynn (Vice-Chair) Low, Ball & Lynch (650) lflynn@lowball.com Medical, Health Care and Malpractice Mike Mordaunt (Chair) Riggio, Mordaunt & Kelly (209) mmordaunt@riggiolaw.com Dominique Pollara (Vice-Chair) Schuering, Zimmerman Scully, Tweedy & Doyle (916) dap@szs.com Public Entity Marty Ambacher (Chair) McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer & Borges (925) martin.ambacher@mcnamaralaw.com Toxic Torts Christopher Wood (Chair) McKenna, Long & Aldridge (415) cwood@mckennalong.com Mary Ellen Gambino (Vice-Chair) Morgenstein & Juberlirer, LLP (415) meg@mjllp.com Transportation Keith Chidlaw (Chair) Schuering, Zimmerman Scully, Tweedy & Doyle (916) kdc@szs.com James Treppa (Vice-Chair) Bledsoe, Cathcart, Diestel & Pedersen, LLP (415) jtreppa@bledsoelaw.com For more information, contact any of these attorneys or the ADC office: 2520 Venture Oaks Way, Suite 150 Sacramento, CA (916) fax (916) Defense Comment Fall 2007