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1 CA AWC S.D JK THE HONORABLE LINDA F. ATCHERLEY is a judge at the San Diego District Office of the WCAB. Judge Atcherley worked as an associate attorney from 1987 to 1995 with the law firm of LUDECKE, DENTON & BUNN and then from 1995 to 2012 with her own law office and in partnership with Robert McLaughlin. Ms. Atcherley represented injured workers in workers compensation, personal injury, social security disability, and employment cases. She is a past president of the California Applicant s Attorneys Association. She was named Applicant Attorney of the year in 2008 by the State Bar of California Workers Compensation Section and one of the 50 most influential people in workers compensation by the Workers Compensation Executive magazine in In 2014, she was selected to serve on the Executive Committee of the Workers Compensation Section of the State Bar. She has been a presenter at numerous workers compensation conventions and seminars, including numerous presentations on EAMS, Apportionment, Gender Bias, and other issues with the California Applicant s Attorneys Association and, most recently, presentations at the State Bar annual Workers Compensation Section seminar in October 2012, the DWC conference in March of 2013, the Sterling Education Seminar on advanced workers compensation matters in April of 2013, and 2014; the State Bar Legalization Boot Camp in July of 2013; and the State Bar Conference in San Diego in November 2013 and She participated in the external user groups on the Permanent Disability Rating Schedule in 2007/08, the EAMS external user groups in 2008 and 2009, the SDJB user group in 2008 and the user group on Disability Notices in 2010/2011. She is a member of the State Bar of California, and the San Diego County Bar Association, Judge Atcherley earned her J.D. at Western State University College of Law. 12/1/2014 8:57 PM

2 William J. Oppenheimer Attorney at Law 40 South Market Street, Suite 530 San Jose, California Phone (408) Fax (408) Certified Specialist Workers Compensation Law State Bar of California Board of Legal Specialization AV (Highest) Rating Martindale-Hubbel Professional Affiliations Supreme Court of the State of California, November 1978 United States District Court, Northern District of California, November 1978 United States Court of Appeals, 9 th Circuit, April 1980 State Bar of California, Workers Compensation Section Santa Clara County Bar Association Education J.D., Lincoln University Law School, 1978 B.A., University of Illinois, 1972 Professional Experience Office of County Counsel, Santa Clara County (7/15/05 to present) Law Offices of William J. Oppenheimer, Workers Compensation Applicant Attorney (5/1/00 to 7/1/05) Thomas, Salter & Lyding, Workers Compensation Defense Attorney (4/1/84 to 4/30/2000) Partner (1988 4/30/2000) Law Office of Daniel M. Feeley, General Practice ( ) Tunney & Carlyle, General Practice, ( )

3 Organizations California Applicant s Attorney Association (2000 to 2005) Executive Committee, Workers Compensation Section, State Bar of California ( ) Chair, Internet, Subcommittee (9/2001 9/2002) Co-Secretary; Co-Chair, Education Subcommittee (9/2002 9/2003) South Bay Industrial Claims Association ( ) President (2000) Legal Consultant ( ) Membership Chair ( ) California Compensation Defense Attorneys Association ( ) President (1999) President Elect (1998) Vice President (1997) Board of Directors (1996) Teaching Positions Santa Clara University School of Law, Faculty, (2002) Santa Clara University, Institute for Paralegal Education, Instructor ( ) Publications Special Death Benefits for Local Safety Members, Workers Compensation Quarterly, Workers Compensation Section, State Bar of California (Vol. 24, No. 2, 2011) Use of Scientifically Based Medical Treatment Guidelines Generally Recognized by the National Medical Community, Workers Compensation Quarterly, Workers Compensation Section, State Bar of California (Vol. 17, No. 3, 2004) Use of Rehabilitation Professionals and Other Methods of Overcoming the Anomaly of the Psychiatric Protocols, Workers Compensation Quarterly, Workers Compensation Section, State Bar of California (Vol. 16, No. 1, 2003) Psychiatric Claims as a Compensable Consequence of Physical Injury and Application of the Rules of Statutory Construction, Caaments, Volume XL, Edition 4. pages 18 19

4 Limits on Judicial Discretion after the Mandatory Settlement Conference, Workers Compensation Quarterly, Workers Compensation Section, State Bar of California (Vol. 12, No. 3,) Presentations Delivery of Medical Care in 2004 (ACOEM), Panel Discussion, California Applicants Attorneys Association, 2004 Summer Convention, June 17, 2004, Resort at Squaw Creek Medical Treatment and How it is Changing; ACOEM Guidelines and Medical Utilization; Panel Discussion, California Applicant Attorneys Association, May 1, 2004, Oakland Special Defenses, State Bar of California, Workers Compensation Section, 2003 Summer Education Conference, July 26, 2003, Marriott San Francisco Airport, Burlingame Introduction to Workers Compensation, Panel Presentation, Lorman Education Services, October 23, 2001, Santa Clara, California Workers Compensation: That can t be the Law, Bay Area Lawyers Network, San Jose, Capital Club, March 14, 2001 Advanced Workers Compensation in California, Panel Presentation, National Business Institute, San Jose, California, April 27, 2000 Injuries in the Workplace; Examining the Workers Compensation Process, Panel Presentation, National Business Institute, San Jose, California, January 28, 2000 Case Law Update, Panel Seminar, South Bay Industrial Claims Association, San Jose, (2000) Change of Treating Physician, Panel Seminar, South Bay Industrial Claims Association, San Jose, (1999) Database Management of Workers Compensation Cases, California Workers Compensation Defense Attorneys Association, Convention, May 29, 1998, Squaw Creek License State Bar of California 83905

5 ! Teresa&E.&Dietz& County&of&San&Diego,&Office&of& County&Counsel& Senior!Deputy!County!Counsel! Workers!Compensation!! 619/531;4891!Direct!line! Areas&of&Practice:&! Workers!Compensation!! &! Education/Experience:& & BS!Business!Administration!San!Diego!State!University!!!!!!!Director,!!Internship!Bureau!for!College!of!Business!!!!!!!Delta!Sigma!Pi,!Iota!Pi!chapter!member!!!!!!!Yearbook!Committee!!!!!!!Dean s!list!! JD!Thomas!Jefferson!School!Of!Law!!!!!!!Legal!Research!Intern,!San!Diego!Superior!Court,!Presiding!Dept.!!!!!!!!Downtown!(Judith!McConnell)!and!El!Cajon!(James!Malkus)!!!!!!International!Law,!Trinity!College,!Cambridge,!Cambridge,!England!!!!!!Law!Review,!Criminal!Justice!Journal,!Assistant!Editor!!!!!!Student!Government!member! & Business/Civil/Corporate!Trial!and!Transactional!Attorney,!San!Diego! State!Compensation!Insurance!Fund!Staff!Counsel! D,!San!Diego! Senior!Associate!Attorney,!Mullen!&!Plummer,!San!Diego!! Arbitrator,!San!Diego!Workers!Compensation!Appeals!Board! Pro;Tem!Judge,!San!Diego!Workers!Compensation!Appeals!Board! Pro;Tem!Judge,!Small!Claims!and!Traffic,!Kearny!Mesa!Superior!Court!! Guest!seminar!speaker,!State!Bar!of!CA,!2013;2014! Guest!seminar!speaker,!CAAA,!2012!! Co;chair!Workers!Compensation!section,!San!Diego!County!Bar!Assn.! 2010;!present!! Volunteer,!San!Diego!County!Bar!Assn.:!Call!A!Lawyer!(NBC;7),! Community!beautification!project,!Family!Law,!Wills!for!Heroes!! Corporate!Sponsor,!Richard!Petty!Racing,!NASCAR!and!Truck!series! Tournament!Deep!Sea!Fishing:!Bisbee,!Gold!Cup,!Ixtapa,!Zihuatenejo! Iditarod!dog!sled!Ride!Along!!

6 Schutzhund!and!K9!training!(Agility,!Tracking,!Obedience,!Protection)! German!Shepherd!Dog!Rescue! SCUBA!diving;!NAUI!International!Certification! Involved!with!various!local!charities!!!!

7 ISSUES AND TECHNIQUES IN THE TRIAL OF WORKERS COMPENSATION CASES William J. Oppenheimer Deputy County Counsel i

8 TABLE OF CONTENTS 1. Obtaining informed authorization to proceed to trial A. Written analysis of case B. Schedule meeting with client C. Discussing the justification for trial 2. The theory of the defense case 3. Using a check list to prepare for trial A. Prepare the calendar B. Notify all witnesses C. Prepare documents D. Do I need co-counsel or paralegal 4. Preparing lay witnesses A. Meeting with witnesses individually B. Putting the witness at ease C. Explaining the process D. Getting the witnesses history regarding the issues E. Dress rehearsal for trial testimony F. Instructions for the witness G. Getting the witness to attend trial 5. Preparing expert witnesses A. The use of experts in workers compensation is infrequent B. Write to the expert when engaging his/her services C. Study the report of the expert when it is received D. Meet with the expert E. Discuss the questions that the expert would like you to ask F. Discuss a plan of attack to cross-examine the opposing expert 6. Preparing an offer of proof 7. Prepare a trial notebook A. Use as an organizational tool i

9 B. Obviates need to bring the entire file to trial C. More efficient use of trial time D. Content 8. Managing your emotions at trial A. Trials are stressful B. Treat everyone with courtesy C. Look organized D. Disagreeing with the trial judge E. Don t argue with opposing counsel F. Don t react emotionally to court rulings 9. Trial briefs A. Providing a trial brief is best practice B. The introduction C. The facts 1. Anticipated testimony 2. Documentary evidence 3. The medical record 10. Demonstrative evidence A. Video, photographs and spreadsheets 11. Objections A. Leading questions B. Hearsay C. Compound questions D. Calls for expert opinion 12. Direct examination of lay witnesses A. Evaluate the effectiveness of each witness B. Create a plan for presenting testimony C. Questions to put the witness at ease D. Open ended questions E. Leading the defense witness ii

10 13. Cross examination of witnesses A. The hardest part of the trial B. Should you cross-examine the witness C. What is the purpose of cross-examination of the witness D. General principles of cross-examination E. Prior inconsistent statement F. Types of witnesses 14. Interaction with the judge A. Always be courteous and professional B. Watch the pen C. You can disagree without alienating the Court D. Objecting to questions posed by the judge E. Nothing is going my way/everything is going my way iii

11 1. Obtain informed authorization to go to trial A. Prepare a written analysis explaining the worst case scenario and the potential dollar risk. If necessary, specifically describe the potential risk for life pension in dollars. If necessary, specifically describe the potential risk for a permanent and total disability in dollars. B. Schedule a meeting to be attended by the Claims Manager, the supervisor and the adjuster to explain the risks. C. Make sure that the client understands the reasons for trial. Examples are set forth below. 1. It is a case in which the demand is excessive and the defendant does not have any choice but to defend the case at trial. 2. The defendant should go to trial because we believe we can prevail. 3. The defendant wants to go to trial as a matter of principal. In each case, be sure to explain the following. a. Explain the probability of success as a percentage. b. Explain the weakness of the defense case. c. State that a trial judge has broad latitude and will bend over backward to find in favor of the employee. d. Discuss the strengths or weaknesses of the opposing counsel. e. Discuss the proclivities of the trial judge. f. Discuss the difficulty of overturning the decision. Is there really an issue of law that will be of interest to the Board on Reconsideration or the DCA on appeal? 2. Determining the theory of the defense case What is the theme of the defense? Development of a theme allows the trial attorney to organize questions to ask witnesses and the exhibits to offer into evidence to facilitate a strategy based upon the theme. The file (medical reports, transcripts, personnel file, HIP file, EOD files and other documents) may be thousands of pages. It can t all be offered into evidence. Because of complexity of the facts developed through discovery and investigation, there must be some method to determine what is relevant. 1

12 Typical themes in workers compensation cases usually fall into several broad categories. They may be similar. A. The applicant was injured but is consciously exaggerating the impairment This is the defense based upon sub rosa investigation. In this case, through crossexamination of the applicant, the defense attorney will give the applicant maximum opportunity to lie about his limitations that the video contradicts. An example follows. o Is it true that because of your injury you have difficulty walking? o When forced to walk do you need to go slowly? o Is it true you can t walk as far as you used to before the injury? o How far could you walk before injury? o Now how far can you walk before you must stop? o Is it true that when you stop, you must sit down before continuing to walk? o Is it true that you can t walk for as long a time as you used to walk before the injury? o How long could you walk before the injury? o How long can you walk now before you have to stop and rest? o Do you have to use a cane to walk? o Is it true that you always use the cane if you walk outside? B. The applicant was injured but the medical record is conflicted as to the extent of the impairment. This is the case of the battling experts. Normally, the cases should and do settle. They go to trial when one of the parties is being unreasonable. The attorney does not try to make the applicant look like a liar. The attorney may try through cross-examination to get the applicant to agree with the characterization of complaints in the defense report. o Is it true that your ability to walk now is limited? o Are you limited to being able to walk an hour? (Ask leading questions based upon the subjective complaints as characterized in the defense medical report. C. The applicant claims a psychiatric injury based upon an incomprehensible tale of woe, constantly using buzz words as a substitute for facts. The applicant answers every question with the conclusion that he or she was the victim of discrimination, harassment and retaliation. The attorney will cross-examine the applicant by making the applicant testify to the specific words heard in the work place. I appreciate that you feel you were discriminated against, but what words did your boss use when he told you to work on the assignment? D. The applicant claims a psychiatric injury which he or she believes is real but is based upon his or her beliefs rather than facts. In this type of case the questions you 2

13 ask are intended to show the applicant s flawed thinking process. An example follows. Q. Are you claiming that your supervisor said unkind things about you in the workplace? A. Yes Q. Did he say them directly to you? A. No Q. Did you overhear him say something to someone else? A. No Q. Did another employee tell you the supervisor said unkind things about you to him? A. No Q. Did another employee tell you he overheard the supervisor say unkind things about you to others? A. No Q. Did you have any messages where you supervisor wrote unkind things to you? A. No Q. Have you seen any s in which your supervisor wrote unkind things about you? A. No Q. Is it true that you assumed your supervisor said unkind things about you because he told you unkind things about someone else? A. Yes Q. But it s also true that you claim discrimination because you say your supervisor talks to other employees but excludes you? A. Yes E. The Applicant is a liar On direct examination, get as much false detail from the applicant as possible. Then try to impeach his/her credibility through prior inconsistent statements in deposition testimony and medical histories he/she gave doctors that contradict his trial testimony. Then present as many witnesses as possible to contradict as many factual statements as possible. 3. Create a check list for trial A. Prepare the calendar 1. Make certain the trial date is on calendar. 2. Calendar the date for filing exhibits. 3

14 B. Notify all witnesses 1. Notify the lay witnesses of the date, place and time of trial? 2. Schedule meetings with lay witnesses to prepare for trial? 3. Notify investigators of the date, place and time of trial? 4. Notify the expert witness of the date, place and time of trial? C. Prepare documents 1. Prepare offers of proof. 2. Prepare a trial brief. D. Do I need co-counsel or a paralegal? Historically, workers compensation attorneys went to trial without assistance of any other attorneys or paralegals. The cases have become more complicated. There are generally more exhibits and issues than in the past. There are no rules against having assistance. 4. Preparing lay defense witnesses for trial A. Meet with each witness individually. Don t meet them in a group. You don t want testimony to be shaped by peer pressure. You want to know what each witness really believes and how he/she will testify. B. Put the witness at ease about prospective testimony 1. The witness is not individually liable for anything he said or did (unless there is a lawsuit). 2. If you are a County attorney, you are a public agency attorney. You have a different ethical obligation. Your job is to find out the actual facts. If you determine the employee is entitled to benefits, you will advise the County to pay benefits. For this reason you are a fact finder and only want the truth. 3. Tell the witness that he/she cannot be disciplined for giving testimony. The trial is not about the witness. It is about the benefits the applicant may be entitled to receive. C. Explain the process of the trial to each witness. 1. Describe the physical layout of the courtroom. 2. Describe the roll of the judge. 4

15 3. There is no jury. 4. Histrionics by opposing counsel are not condoned. 5. Speak more slowly than usual. The judge will be taking extensive notes. 6. If the witness feels too nervous on the witness stand, he or she should say that to the judge and ask for a short break. The judge will likely give him/her a short break. 7. If the witness needs to take a break for personal reasons during testimony, it is acceptable to ask the judge to take a break. 8. It is okay not to know the answer to a question. 9. If the witness does not understand the question, he/she should say so to the judge. 10. Don t think out loud. 11. Only answer the question asked. Give examples of what not to do. 12. If there is something important to say that is not asked, the witness shall speak to the defense lawyer at the earliest opportunity. D. When preparing for trial, let the witness begin by telling you his/her story and impressions in their own way. 1. Before meeting with witnesses, prepare a list of questions for the witness based upon the defendant s burden of proof and the elements of the defense you are presenting. 2. Ask the witness about his or her own experiences. I have asked about educational and employment experience leading to discussions. Demonstrate that you are interested in the witness as a person. It makes for a more congenial atmosphere in which to discuss the testimony in the case. 3. Ask the witness to explain his/her understanding of what happened in their own words before asking specific questions. Give the witness the opportunity to give his or her explanation so that the witness knows you are interested and that you are not trying to persuade him/her to only testify favorably for the defendant. 4. Ask the witness the questions you intend to ask at trial and get his/her answers. Write them down so when you prepare your list of questions for trial, you know what answer you expect to receive. 5

16 a. Typically, I don t give lay witnesses a list of questions. In such case, their testimony appears rehearsed and not credible. You don t want them to take a list of questions with them and read during the trial. Tell the witness that the subject matter of questions will be roughly the same but may not be exact and not in the same order. It depends on what is important based upon other testimony or what the judge says he/she wants to know. b. However, there are some witnesses for whom it may be appropriate to prepare a list of questions, along with the answers he/she provided in your interview. You can reference their answers to a particular exhibit that you may show them at trial to refresh the witnesses memory. This is discretionary based upon your experience with the individual witness. 5. Let the witness know whether he/she should bring his/her file or notes to trial. This will depend on the content of the file and the ability of the witness to answer questions without notes. E. Don t hesitate to prepare a witness more than once in preparation for trial. 1. In most workers compensation cases, you only need to prepare the defense witnesses one time. 2. However, some witnesses require more than one session and some cases. They may be too nervous or need more preparation in order to communicate their thoughts. 3. You may have interviewed the witness in the investigation phase of the case. However, preparation for trial is a different proceeding. During the investigation phase the attorney asks open ended questions and permits the witness to give long narratives to elicit the facts and the motivation of all involved. Many of the questions asked of the potential witness are determined to be irrelevant. 4. Preparation for trial is more structured because the attorney wants to limit the testimony to that which is necessary to establish the defense. 5. Some witnesses don t make favorable impressions. For example, some witnesses find it difficult to concisely answer the question asked. Some witnesses think out loud. Some witnesses have poor memories. It may be necessary to prepare witnesses two or more times for trial. They need to practice giving testimony. 6. Some cases present complicated factual scenarios and the attorney may wish to prepare witnesses more than once for this reason. 6

17 7. A second preparation may alleviate a person s trepidation about giving testimony. F. Instructions 1. The witness should avoid the use of jargon. Advise the witness that the WCALJ is not an expert in the work that the witness does. The judge will not know the jargon used in the place of employment. Don t speak in the language of initials. 2. The witness should avoid using medical terms (say back not lumbar spine ) 3. The witness should not elaborate when answering questions asked by the other attorney. It is up to that attorney to ask the right questions. The witness should not volunteer information to assist the attorney. 4. Judges lose patience with witnesses who give lengthy answers. 5. Attorneys are good listeners. They don t make a list of questions and stick to a script. The more the witness says during testimony, the more questions opposing counsel may ask during the trial. 6. The witness should expect questions from the WCALJ. When answering those questions, the witness should look at the judge. 7. It may be necessary in some cases to instruct a witness not to use coarse language. 8. The witness should dress professionally at the trial. It is important to make a good impression on the judge. It may not be necessary for men or women to wear suits or women to wear skirts, but the witness should wear clean clothes that do not look rumpled. 9. The witness should not argue or be abrasive with opposing counsel during cross-examination. A calm witness who does not appear defensive or biased will make a better impression on the judge. The lawyer for the defense will object to questions that are argumentative. 10. The witness should not guess in order to answer a question. It is better to say he/she does not know the answer. 11. When the attorney for the defendant objects to a question during crossexamination by opposing counsel, the witness should stop speaking and not 7

18 start again until instructed by the judge. The judge will decide whether the witness should answer the question. 12. The witness should listen carefully to the question. If the witness does not understand the question, he/she should say so. 13. The witness should think about his/her answer before given the answer. The answer does not have to be given immediately. The witness should think through the answer to be satisfied that he/she is saying what he/she intends to say. 14. The witness should not think out loud. 15. The witness does not have to explain the reason for his/her answer. A proper answer may be as follows: Q. Where were you going when the accident happened? A. To my office. An improper answer in which the witness explains his/her reasoning: Q. Where were you going when the accident happened? A. I know I was going back to the office because I was late. I had a few drinks at lunch and I had to hurry back to avoid being late. G. Providing documents to the witness 1. If the witness gave deposition testimony during discovery, give the witness the transcript to review before trial to refresh recollection. 2. If the witness gave a statement to an investigator during discovery, give the witness the summary or transcript before trial to refresh recollection. 3. If there are relevant exhibits that you intend to show the witness at trial or which the adverse party may show the witness, give the witness copies of the exhibits before trial and review the documents with him/her. H. Making sure the witness actually attends the trial 1. Give the witness the date, time and location of the trial. 2. In some cases you may believe it is necessary to subpoena the witness to attend trial. If the witness fails to appear, you can advise the WCALJ that the person was subpoenaed and another trial session is necessary and reasonable. 8

19 3. Advise the witness to bring a small snack or drink. The witness will likely have to wait for his/her turn to testify and may not be the first witness. 4. Advise that the witness may wish to bring something to read or an MP3 player to keep busy. 5. Tell the witness that you will send an with the date, time and location of the trial and then do so. 6. Make sure to exchange cell phone numbers with the witness so you can contact them or they can contact you in case of an unexpected problem. 7. In some cases you may wish to advise the department manager that the employee will be called to testify. In one case, I advised a department manager what questions I would ask employees, and asked if there was anything confidential or inappropriate for the witnesses to discuss. 8. Call the witness the day before to trial to see if he/she has any questions. This gives you an opportunity to remind the witness that his or presence is necessary the next day. 9. A sample letter to a witness regarding attendance at trial is attachment 1. I. Questions on direct 1. Ask short questions with simple vocabulary. For example, rather than ask, Prior to the occurrence of injury, did the applicant indicate or communicate any concern that the place of employment presented a dangerous condition which he had to navigate? It is better to ask, Before the injury, did the employee say there was a water leak? 2. Refreshing recollection is permitted. Sometimes a witness forgets facts. His recollection can be refreshed. This can be done by showing a document to a witness. A sample follows: Q. When did the employee report the injury to you? A. I don t remember. Q. At one time did you know when he told you he was injured? A. Yes. Q. Did you make a report when he told you he was injured? A. Yes. Q. Would you be able to refresh your recollection about the date if you reviewed your report? A. Yes. 9

20 Q. Your honor, I would like permission to show the witness the Supervisor s Report of Injury? The Court: Permission is granted Q. Now that you have looked at your report, do you recall the date when the employee told you he was injured? A. Yes. 3. Leading questions on direct or redirect examination are not generally permitted. See Evidence Code section 767. Evidence Code section 764 defines a leading question as one suggesting to the witness the answer that the examining party desires. As an example, it would be leading to ask, You saw Mr. Jones fall, didn t you? It is more proper to ask, Did you see anyone fall? Judges do have some discretion in permitting leading questions. Evidence Code section 767 provides that except under special circumstances where the interests of justice otherwise require, allows the judge to permit leading questions. There are times when you may try to ask leading questions. 5. Preparing expert witnesses (vocational experts) A. The use of experts in workers compensation is infrequent. Physicians don t testify at the WCAB. Recent legislation makes vocational expert testimony less likely. B. Obtain the expert s most current CV to use for qualifying him/her as an expert. C. Write to the expert when engaging his/her services. Send the witness all the relevant documents for review. Explain the nature of the case and the issues on which you want expert opinion. D. Study the report of the expert when it is received. What did the expert conclude? What was the methodology used? How does the report differ from the opinions of the applicant s expert? E. Meet with the expert. Ask in what way the analysis is weak or subject to attack. What are the strengths and weaknesses of the analysis by the applicant s expert? Why is it that they reached different conclusions? Does your expert have an opinion on the ability of the applicant s expert to give credible testimony? F. Discuss the questions that the expert would like you to ask to elicit the opinions he wishes to provide. Determine in advance what questions he expects to be asked on cross-examination, his answers and what questions you should ask on re-direct. 10

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