Evidence. hidden assets punitive damages. punitive damages. Uncovering hidden assets. for. Getting the good stuff in and keeping the bad out

Transcription

1 Journal of Consumer Attorneys Associations for Southern California Powerful evidence: Roll the videotape at depositions Journal of Consumer Attorneys Association for Southern California March 2009 issue Reproduction in whole or in part without express written permission is prohibited. Copyright 2009 by Neubauer & Associates, Inc. Evidence Getting the good stuff in and keeping the bad out Monroy: New help in overturning erroneous rulings on evidence Victory through the verdict form: Tips from two leading advocates hidden assets punitive damages Uncovering hidden assets for punitive damages Are you still wasting money ordering paper documents? Beating the most common defenses in medical-negligence cases MARCH 2009

2 THERE S THE SHORT LIST WHEN CONSIDERING A LAW FIRM TO WORK WITH YOU IN EITHER A JOINT VENTURE OR REFERRAL RELATIONSHIP. Nevada Cases. THEN, THERE S THE TOP OF THE SHORT LIST: GREENE BROILLET & WHEELER. Why refer your cases outside the CAALA family? Herbert L. Michel, Jr. Attorney at Law* Long-time member of Consumer Attorneys Association of Los Angeles Member of Million Dollar Advocates Forum 35+ years of trial practice 25+ years of practice in Beverly Hills Offices located in prestigious Community Bank Building, Las Vegas, Nevada Extensive Experience in Catastrophic Injury and Wrongful Death Cases You will speak with me personally, not a secretary. I welcome all referrals, no matter the size. Herbert L. Michel, Jr., Chtd. A Nevada Professional Law Corporation Community Bank Building 400 South Fourth Street Suite 290 Las Vegas, Nevada Phone: Fax: HerbMichel@aol.com *Licensed in Nevada, California, Colorado and Texas 2008 Creative Intelligence, Inc./LA-NY IN 35 YEARS, WE VE WON VERDICTS AND SETTLEMENTS APPROACHING 11 FIGURES Named #1 in California in Personal Injury Litigation by Best Lawyers in the 2008 Edition of Best Lawyers in America Named repeatedly as Top 10 Super Lawyers, Top 100 Los Angeles County, and Top 50 Women Super Lawyers by Southern California Super Lawyers Magazine Named and profiled as one of the Top Plaintiff s Law Firms in America by the National Law Journal Named repeatedly to the 100 Most Influential Attorneys in California List and Top Women Litigators List by the Los Angeles Daily Journal Named among California s Most Respected Plaintiff s Lawyers by California Lawyer Magazine TO DISCUSS HOW WE MAY ASSIST YOU PLEASE CONTACT US AT or info@greene-broillet.com

3 Khorrami Pollard & Abir LLP Generous Referral Fees written confirmation, per State Bar rules. Khorrami Pollard & Abir LLP is proud to announce the addition of three new associate attorneys Over 50 years of combined experience representing injured plaintiffs. We prosecute an average of a dozen local trials every year. Many have resulted in six and seven figure verdicts. Maryam Danishwar A graduate of Loyola Law School, Maryam Danishwar served as a law clerk for KP&A and previously worked with Neighborhood Legal Services handling family and landlord tenant law. She is a member of CAALA, the American Bar Association, Phi Alpha Delta Law Fraternity, and the LACBA s Domestic Violence Project. Michael Forman A graduate of Pepperdine University School of Law, Michael Forman is a former law clerk for KP&A and Sherman & Salkow. Michael completed a course of study in Alternative Dispute Resolution, receiving a certificate from the Straus Institute for Dispute Resolution. He is a member of CAALA, California Employment Lawyers, Los Angeles County Bar Association and Beverly Hills Bar Association. Roxanna Tabatabaeepour A graduate of American University Washington College of Law, Roxanna Tabatabaeepour was previously a law clerk for KP&A and the Orange County District Attorney s Office. She is a member of CAALA and previously taught underprivileged teens Constitutional Law through the Marshall Brennan Constitutional Literacy Project in Washington, DC. JAMES R. TRAUT & ERIC V. TRAUT James received the Orange County Trial Lawyers Association Trial Lawyer of the Year Award and the next year Eric was honored with the same award. Both are annually designated Super Lawyers by a Los Angeles magazine poll. Both AV-rated, James and Eric are members of The National Board of Trial Advocates, Consumer Attorneys Association of California, Consumer Attorneys Association of L.A. and the Association of Trial Lawyers of America. James is a past Board Member and Eric is a past President of Orange County Trial Lawyers Association. Khorrami Pollard & Abir LLP, one of the largest plaintiff-only firms in California, represents individuals in a variety of cases including pharmaceuticals, product liability, natural disasters, toxic torts, labor and employment matters. Park Tower 200 W. Santa Ana Blvd. Santa Ana MARCH 2009 The Advocate Magazine 3

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5 Volume 36, Number 3, MARCH 2009 Editor-in-Chief Jeffrey Ehrlich Associate Editors Joseph Barrett, Mary Bennett, Christa Haggai, Joan Kessler, James Kristy, Lawrence Lallande, Graham LippSmith, Beverly Pine, Norman Pine, Linda Rice Editors-in-Chief Emeriti Kevin Meenan, William Daniels, Steven Stevens, Christine Spagnoli, Thomas Stolpman Managing Editor Cindy Cantu Copy Editor Eileen Goss Publisher Richard Neubauer Art Director David Knopf Consumer Attorneys Association of Los Angeles President Treasurer Randy McMurray Lisa Maki President-Elect Secretary Garo Mardirossian Geoffrey Wells First Vice President Immediate Past President Philip Michels Amy Fisch Solomon Second Vice President Executive Director Michael Alder Stuart Zanville Board of Governors Mike Arias, Michael Armitage, Joseph Barrett, Todd Bloomfield, John Blumberg, Donn Christensen, Arlan Cohen, Scott Corwin, Carl Douglas, Ricardo Echeverria, Jeffrey Ehrlich, Mayra Fornos, Maryann Gallagher, Victor George, Steven Goldberg, Christa Haggai-Ramey, Genie Harrison, Steven Heimberg, Elizabeth Hernandez, David Hoffman, Arash Homampour, Neville Johnson, James Kristy, Lawrence Lallande, Gerald MacRae, Scott Marks, Shawn McCann, Jill McDonell, Kevin Meenan, Gretchen Nelson, Elaine Mandel Peters, Thomas Peters, Linda Fermoyle Rice, David Ring, David Rosen, Jeff Rudman, Adam Shea, Douglas Silverstein, Steven Stevens, Jeff Westerman, Ronnivashti Whitehead, David Wood, Gregory Yates, Daniel Zohar Orange County Trial Lawyers Association President Alan C. Brown President-Elect Anne Andrews First Vice President Yoshiaki C. Kubota Second Vice President Douglas W. Schroeder Third Vice President Scott B. Cooper Board of Directors Secretary Terry K. Davis Treasurer Casey R. Johnson Parliamentarian Ted B. Wacker Immediate Past President Keith P. More Executive Director Janet Thornton Melinda S. Bell, David L. Belz, H. Shaina Colover, Cynthia A. Craig, Katrina Anne Foley, Robert B. Gibson, Geoffrey Steven Gray, Vincent D. Howard, Kevin G. Liebeck, B. James Pantone, Solange E. Ritchie, Jeffrey S. Sheldon, Adina T. Stern, Timothy J. Swift, Kimberly A. Valentine, Dieter Zacher Periodicals postage paid at Los Angeles, California. Copyright 2009 by the Consumer Attorneys Association of Los Angeles. All rights reserved. Reproduction in whole or in part without written permission is prohibited. ADVOCATE (ISSN ) 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 (213) Fax (213) POSTMASTER: Send address changes to ADVOCATE c/o Neubauer & Associates, Inc. P.O. Box 2239 Oceanside, CA Contents features: 16 Evidence: In with the good; out with the bad Getting your best evidence admitted and keeping unsavory evidence out can present a challenge. Pairing the necessary conventional discovery methods with innovative means can help drive home your best evidence and keep out the bad stuff. Here are some tried and proven tips. Molly K. O Brien 22 Evidence of a defendant s financial condition in the punitive-damages phase of trial The author explains the various methods and tactics a plaintiff s attorney may use to uncover assets and discover a defendant s true financial condition for the purpose of seeking punitive damages. William M. Karns 32 When discretion goes too far: Monroy v. City of Los Angeles reversal of a court s erroneous evidentiary rulings Appellate courts seldom reverse trial courts based solely on evidentiary rulings. Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, does just that, finding that a trial judge made three distinct evidentiary rulings that required reversal. There is much to be learned in the Monroy decision about how to deal with erroneous trial court rulings on evidence. Jeffrey Isaac Ehrlich 44 Using jury instructions and verdict forms to guide jurors in the right direction This article discusses the importance of jury instructions and the verdict form, highlighting the significant impact these items have in a personal injury trial. The author presents a review of current requirements for proper submission of jury instructions. Todd J. Bloomfield 79 Victory through the verdict form Attention to a verdict form can save you aggravation and prevent the unraveling of your case. Bill Veen and Corey Friedman 50 Why you lose medical-negligence liability cases For every 100 medical negligence liability cases filed nationally, only one results in a victim s verdict. Six result in a defense verdict. Why? As a healthcare victim s lawyer, you lose because you fail to overcome common defenses. The author offers specific, practical tips on overcoming these defenses. Lewis L. Laska Advertising Sales: Neubauer & Associates, Inc. Chris Neubauer - Sales Manager Fax: advertising@theadvocatemagazine.com Rate card available online at Submitting articles for publication: Check the annual editorial calendar at 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 editor@theadvocatemagazine.com. Please check the website for complete editorial requirements. Reprint permission: Contact Managing Editor Cindy Cantu: cindy@caala.org 57 Let s roll the videotape The effective use of videotaped depositions at trial can dramatically change your case. Find out the practical and procedural considerations needed to master this powerful evidentiary tool. Daniel Zohar 66 Structured settlements: Protection during dangerous economic times Despite the current financial woes, the structured settlement has maintained its safety, stability and reliability. The author/broker reviews why structured settlement funds are secure and compares them to other investments. Bryan Milner departments: About this Issue Evidence James Kristy From the President of CAALA The change has come Randy McMurray From the President of OCTLA A New Year Alan C. Brown From the Executive Director of CAALA Lilly Ledbetter s legacy: Clear proof where President Obama stands on consumer issues Stuart Zanville From the Membership Manager of CAALA Save money on legal, financial and business services Liz Hagan Appellate Reports A summary of recent cases Jeffrey I. Ehrlich Index of Advertisers Calendar of Events The Practical Practitioner Are you wasting money on ordering paper documents? Bill Daniels On the cover: Main image: Cash In-between Mattresses Jose Luis Pelaez Secondary image: Cameraman silhouette and camera Yuriy Ponomarev Sanford M. Gage, Esq. EnGage Mediation (310) Fax (310) engagemediation.com engage.mediation@sbcglobal.net Century Woods Drive Los Angeles, CA RANDY MCMURRAY The Cochran Firm 2009 CAALA President GARO MARDIROSSIAN Mardirossian & Associates 2009 CAALA President - Elect PHIL MICHELS Michels & Watkins 2009 CAALA Vice President Whether your case is about a train, plane or bus - in EP we trust! EP s talented staff creates graphics to capture the minds of the jurors. The video and trial graphics were, as usual, top notch and turned the tide for us. 6 The Advocate Magazine MARCH 2009 MARCH 2009 The Advocate Magazine 7

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7 MANDELBROT LAW FIRM DEDICATED TO HELPING VICTIMS OF ASBESTOS DISEASE By James R. Kristy Associate Editor Asbestos Cases Personal Injury Evidence This issue is all about optimizing the impact of your evidence on a jury. This issue will not be an exegesis of the Evidence Code. As important as a thorough understanding of the Code is to trial success, the following articles touch on the art of gathering and presenting evidence to best effect. In Let s roll the videotape! author Dan Zohar guides us in the use of videotaped depositions. In his own practice, Dan videotapes most depositions. He has mastered their use at trial, and shares his methods both technical and procedural. The focus of the article is how to use LEMON LAW We represent consumers of defective vehicles under the California Lemon Law. We have successfully completed over a thousand cases against Ford, GM, Chrysler and others. Most cases handled on a contingency. Multiple Repairs Odometer Rollbacks Salvaged Title Dealership Fraud Prior Daily Rentals Automobiles, Trucks, Motorcycles, Boats, Motor Homes, RVs Referral Fees Paid Pursuant to State Bar Rules The Advocate Magazine MARCH 2009 deposition videos to present your evidence in a way that grips the jury. Let s roll the videotape also guides us in the practicalities of video recording and Dan provides a roadmap to navigate the procedures of designating video depositions to be played at trial. Molly O Brien s article, In with the good, out with the bad, reveals how creativity in gathering and presenting evidence can enhance the impact of your case on a jury. Molly discusses the importance of requests for admissions and how to use admissions to impeach witnesses and narrow issues at trial. She also reveals strategies for forcing reluctant defendants to divulge the information to which you are entitled in discovery. Molly notes the importance of researching before trial whether witnesses friendly or hostile have posted anything about themselves on Internet social networking sites. She offers strategies for motions in limine, and concludes with outside-the-box tips that will help you uncover powerful evidence in your case. Next, Bill Karns shows how to obtain and use Evidence of a defendant s financial condition in the punitive-damages phase of trial. You have properly pled punitive damages and are finally about to try your case. Looking ahead, what will you need in the happy event that you receive a verdict that includes a finding of the defendant s malice, fraud, or oppression? Bill shows you how to plan for the introduction of evidence of the defendant s financial condition during the punitive phase of trial. He reviews the law governing discovery of this information and its use at trial. Finally, the article offers strategies for obtaining crucial evidence of defendant s wealth, which will empower your jury to award an amount commensurate with the defendant s financial clout. The end-game: You and your opponent are about to deliver closing argument. In his article, Use jury instructions and verdict forms to guide the jurors, Todd Bloomfield urges us to familiarize the jury with the law they are about to apply to the evidence. Todd s article also recommends jury instructions as a framework for drafting the complaint and keeping you focused on proving the legal elements of your claims. He reviews the procedural requirements of submitting plaintiff s jury instructions, including special instructions. And Todd shares tips for drafting verdict forms that subtly focus the jury on the many categories of damages your client may have suffered. Following up Todd on jury instructions is prominent San Francisco attorney William Veen. In Victory through the verdict form, Bill shows us how paying attention to the verdict form from the very beginning of the trial can save you aggravation and prevent the unraveling of your case. And if you follow all these evidence suggestions and the judge still makes an evidentiary ruling that guts your case, what are your chances on appeal? Our editor-in-chief, appellate attorney Jeffrey Ehrlich, says you have more hope for a reversal today than you did before the ruling in Monroy vs. City of Los Angeles, a case Jeff says every trial lawyer needs to know. A little off topic but none-the-less valuable are the insights of Tennessee medical malpractice specialist Lewis Laska, who offers his take on why so many medical negligence cases don=t have favorable outcomes for the plaintiff. In addition to teaching law, Laska is the publisher of the oldest national newsletter on medical malpractice. Finally, if you wonder how secure your clients= structured settlements are in these turbulent financial times, broker Bryan Milner looks at how structured settlements compare to other investments. I thank our authors for devoting time to sharing their wisdom and experience. I hope their ideas aid you in the fight for justice for your clients and I wish you all the best success. Wrongful Death Mandelbrot Law Firm Michael J. Mandelbrot, Esq. 582 Market St., Suite 608 San Francisco, CA Fax We ve won settlements of over NINE FIGURES for asbestos victims. MESOTHELIOMA ASBESTOSIS LUNG CANCER Exclusively handling asbestos personal injury cases for over 15 years Generous referral fees paid Experienced in complex litigation Millions in referral fees paid in 2008 Licensed in CA and OR, accepting cases nationwide Managing partner Michael Mandelbrot will take your call personally to discuss the details of your referral. Let the Mandelbrot Law Firm maximize your case value. (800)

8 From the President Randy McMurray Consumer Attorneys Association of Los Angeles The change has come From the reviews I have heard, the inaugural party in Beverly Hills on January 17 was a success. Other parties in Washington D.C. held over the same weekend and on January 20 were also successful. I would like to thank all of the judges, senators, assembly members and all the local law and policy makers who came to the party, a/k/a the installation dinner dance, for their support in making this event one I will remember for my lifetime. My plan for increasing the participation of our members of color seems to be having an immediate effect. I was approached at the installation dinner dance by several of those who I had met in Las Vegas earlier last year. They indicated that it was their first CAALA event and they would be attending many more. I also met with Mike Payne and Milord Keshishian among others at the Governmental Relations Committee Meeting on January 27, who had accepted my invitation to get more involved in the organization. At the Governmental Relations Committee meeting, Lea-Ann Tratten, the political director for CAOC, gave us the lowdown on what was happening in Sacramento and how CAALA and its individual members can help protect our civil justice system and the right to trial by jury. The upcoming meeting for the Governmental Relations Committee dates and times are available at caala.org. On April 28 we will have our Lobby Day in Sacramento. This is the time when we show up in force to educate our state legislators on the issues that are important to our members and their clients. The term limits of our state legislators continually bring in new lawmakers from various backgrounds who may not know the importance of what we do, and how they can help us better serve their constituents and our clients. It is imperative that we have these face to face discussions because you can be sure the medical, insurance and pharmaceutical lobbyists and others with deep pockets will be pressing their adverse positions. Everyone is welcome and encouraged to attend. Please contact Mark Wirth for details and scheduling. Whether or not you attended the installation dinner dance, you can enjoy the marvelous event with the exquisite photography done by Executive Presentations at the CAALA Web site event photos. If you don t recognize me, I am the black guy in the white coat dancing with Sheila E, singing with Jeffrey Osborne and listening with a big smile as Phillip Baley sings those Earth, Wind and Fire Songs. The Media Education Seminar at the Steve Allen Theater (Los Angeles Press Club) was a success. The handful of speakers was excellent, and there were print media representatives from all over California and across the country. Unfortunately, I was unable to make it to the last CAALA member mixer, in Manhattan Beach. I am told it was extremely well attended, with many staying long after the scheduled 8:00 p.m. ending time. I will see you at the next one. No worries. Take the time you need to prepare a winning case. Pre-settlement funding for your clients with No interest charged If the case is lost, your client owes us nothing Toll Free money@fastfunds4u.com Web: 12 The Advocate Magazine MARCH 2009

9 From the President Alan C. Brown Orange County Trial Lawyers Association An Important Message from Political Action Committee Chair Scott Corwin The ability of consumer attorneys to represent their clients is greatly impacted by the actions of the California Legislature. A New Year On January 10, 2009, at the Balboa Bay Club, we celebrated OCTLA s Installation of Officers and Board of Directors. We said thank you to our outgoing president, Keith More, and welcomed our new officers and members of the Board of Directors. The evening began with Presidentelect Anne Andrews providing a warm welcome to the president of CAOC, Christine Spagnoli. Ms. Spagnoli provided insight into the partnership that CAOC has formed with the local trial lawyers associations throughout the State and provided many compliments to how OCTLA has grown and continues to grow. Our keynote speaker was the Founding Dean of the University of California, at Irvine, School of Law, Erwin Chemerinsky. The Dean gave a motivational talk on the importance of the trial attorney in today s society. He reminded us that we are the guardians of our clients right to the judicial system, and we all must Get Involved so our clients will continue to have access to due process in society. The evening was further made special as OCTLA honored Judge J. James DiCesare as OCTLA s Judge of the Year. With Judge DiCesare s family and friends in attendance, we all shared in recognizing such a wonderful member of the bench. On January 29th, OCTLA was fortunate to have CAOC s Christine Spagnoli leading the panel for our annual What s New in Tort & Trial? seminar. Our attendance exceeded 100 members, and the audience remained captivated in a three-hour presentation providing an enlightening summary of many important cases decided in the past year. Our February program, Pearls of Wisdom from the Bench, included the following distinguished panel: Judge Charles Margines, Judge Linda Marks, Judge Franz Miller, Judge Peter Polos, Judge Josephine Tucker and Judge Gail Andler, who shared a variety of timely topics to help us better represent our clients in trial. Our upcoming March 26th program will provide the attendees with valuable tips on handling appeals, including preparing appellate briefs and oral argument with an emphasis on how to be more effective and persuasive in presenting your case to the Court of Appeal. For more information on this program and our upcoming events and seminars, visit our Web site at or call One good bill can correct injustice; one bad bill can create it. Every year the legislature considers hundreds of bills that can close the court house doors to consumers. We must have friends in the legislature to protect the public s right to justice. The big corporate forces that aim to reduce the public s access to the civil justice system are always hard at work to elect tort reform candidates every election year. And when they can t get their way with our elected representatives, they threaten to place harmful initiative measures on the ballot. Standing up for us in this fight is the Political Action Committee Fund of the Consumer Attorneys Association of Los Angeles. The CAALA PAC Fund, in cooperation with Consumer Attorneys of California, has a record of successfully supporting candidates that fight for the civil justice system in the state capitol. If we are going to preserve the civil justice system, we need your help in this important fight. Your financial support of the CAALA Political Action Committee Fund goes a long way to defeat the tort reform interests. Our PAC fund is the perfect way for hundreds of plaintiff attorneys to join together to fight for the rights of our clients. A Structured Settlement can benefit both attorney and client. Personal physical injuries change lives forever. Structured settlements provide financial protection and a renewed sense of security. With professionalism, compassion and over two decades of experience, Jane Riley-Pugh arranges secure and appropriate tax-free and tax-deferred solutions for both lawyer and client. Call Jane today to experience the EPS difference: Experience, People, Service It is easy to support the Political Action Fund by making an on-line contribution via the CAALA web site. To make your contribution, simply go to and click on Contribute to the Political Action Fund under Featured at caala.org. By supporting the CAALA PAC Fund, you will feel good to know that you are doing your part to preserve the civil justice system in the legislative process. Scott Corwin Chair, CAALA Political Action Committee Member, CAALA Board of Governors direct toll free The Advocate Magazine MARCH 2009 MARCH 2009 The Advocate Magazine 15

10 Molly K. O'Brien Evidence: In with the good; out with the bad I believe that the extraordinary should be pursued. Extraordinary claims require extraordinary evidence. Carl Sagan It s a common saying that our cases live or die by the evidence we present. The concept is easy to grasp, but at times it can be much harder for a jury to grasp your key pieces of evidence. Knowing the Evidence Code and your local rules is unquestionably important, but sometimes stepping away from the conventional means can make your evidence shine. While sticking with tried and true discovery methods, learn to juggle those with innovative and creative ways to bring in your best evidence and keep out the bad. Pre-trial considerations Ah, written discovery. The necessary paper-evil that, at times, seems neverending. When propounding written discovery, turn this foe into your friend. Use it to help you effectively and efficiently narrow the focus of your case and identify your crucial fact issues. Two important written discovery tools are Requests for Admissions and Requests for Production. Though the California Code of Civil Procedure has many detailed subsections, below are a couple of the sections that are worth brushing up on. Requests for admissions: Code of Civil Procedure section , et seq. Requests for Admissions (RFAs) should be propounded early and should be served along with Form Interrogatories (see Judicial Council forms at forms/), especially No RFAs are a great tool for determining the true facts in dispute, and also help ensure that all appropriate parties have been brought into your action. RFAs are also a great vehicle for establishing a basis for impeachment down the road. Perhaps 16 The Advocate Magazine MARCH 2009 more importantly, a response to admissions can present opportunities to move for summary judgment. Remember that the number of requests allowed is substantially different for limited versus unlimited cases, but you may submit a supporting declaration to allow additional RFAs. (Code Civ. Proc., 91, 94, 95 & ) Tip: Keep your RFAs short and sweet; a straightforward request may avoid a denial or objection. Of course, when you receive responses to RFAs, be on the lookout for impermissible objections referenced in Code of Civil Procedure sections and The beauty of RFAs: An admission is conclusively established against the responding party and any later-acquired evidence contrary to the admission may not be admissible without leave of court obtained through a noticed motion. (Code Civ. Proc., & ) Follow-up on admissions during a videotaped deposition: when a helpful admission is brought to the jury s eyes and ears, the result can be quite effective evidence. Consider the impact you could make on your jury by allowing them to observe the witness s facial expressions and body language upon making that admission during deposition, as opposed to hearing the attorney read it from the paper itself (or the deposition transcript). Requests for production Code of Civil Procedure section , et seq. Though mainly used to demand production of documents and other tangible evidence, demands for inspection also apply to inspection of land or property. As with RFAs, Requests for Production (RFPs) should also be propounded early when possible. As with RFAs, the number of RFPs allowed is different for limited versus unlimited cases, so be ready to file a motion for additional requests as necessary (note that for unlimited cases, you may propound as many demands as needed). Keep in mind that a failure to serve a timely response or any response will result in a waiver of any objections. (Code Civ. Proc., ) Objections and withholdings The responding party must identify with particularity the objections asserted to an item. If the responding party objects based upon privilege, the particular privilege invoked must be clearly stated. (Code Civ. Proc., , subd. (b)(2).) Typically, the responding party should submit a privilege log setting forth a detailed description of the document, including numerical identifiers ( Bates numbers where possible), subject of the document, author, recipients, and date. (Wells Fargo Bank, N.A. v. Superior Court (2000) 22 Cal.4th 201, 205 [91 Cal.Rptr.2d 716].) Although privilege logs are no longer required, a party deserving one should push for one. Be on the lookout for meritless privilege assertions. For example, it may be a far stretch for documents to be attorneyclient privileged when the documents described are merely marketing documents prepared by a third party at the responding party s instruction. Continually press the privilege log issue and, if dealing with work-product assertions, avail yourself of in-camera inspections. (Evid. Code, 915.) For both RFAs and RFPs, generally be on the lookout for the responding party to file a motion for additional time or motion for protective order (Code Civ. Proc., for RFAs; Code Civ. Proc., for RFPs); be prepared to combat them effectively. (See Code Civ. Proc., and ) Note: Monetary sanctions in this instance are virtually mandatory! The court shall impose monetary sanctions against any party, person or attorney who unsuccess- See Evidence, Page 18 MARCH 2009 The Advocate Magazine 17

11 Evidence continued from Page 16 fully makes or opposes a motion for protective order, absent substantial justification or if sanctions would be unjust. (Code Civ. Proc., , subd. (d) & , subd. (d).) When the responding party fails to answer discovery, especially after the court orders supplemental responses, be ready to move to compel. (See Code Civ. Proc., & ) Always request sanctions under Code of Civil Procedure section et seq. when a court order has been violated. Finally, for Microsoft Outlook users, take advantage of Outlook entries to remind yourself when responses, motions, oppositions and replies are due; following up diligently on these deadlines will not only avoid missed opportunities but will also send your opponent a message that you re not messing around with the evidence you ll use to win your case. Deposition considerations In this age of technology and increasing computer communication, always ask your client or witness if she belongs to any of the social networking Web sites such as Facebook, MySpace, Twitter, Plaxo, Bebo, Reunion, Spoke, WAYN, YouTube, blogger... the list goes on! While many of these Web sites are harmless and perhaps useful to some, you never know what your client or witness has posted online. Let s face it, some people just don t think before posting something that a simple Google search could reveal. A good example of this is a gentleman who posted a YouTube video of his award-winning athletic competition while simultaneously claiming (in the same video) that a pharmaceutical drug had caused him severe congestive heart failure. Although wellintended, when defense counsel shows that video to the jury, suddenly it becomes great evidence against him. Better to know ahead of time rather than have opposing counsel spring something like this on your witness. Consider adding this as a question on your initial client questionnaire, and then ask them again before deposition. Remember, it s just as important to keep bad evidence out as it is to get the good in. 18 The Advocate Magazine MARCH 2009 This issue applies to both parties witnesses. Do a thorough Internet search for all witnesses names, perhaps narrowing it down such as, Jim Smith Facebook Santa Monica and go from there. You should Google their addresses, spouses names and maiden names. If necessary, hire an investigator to do a background check on your witness. You may find evidence that wouldn t be provided or uncovered during written discovery. This evidence could not only make a big difference in your case at trial, but it also may promote early settlement. When suing a business entity, consider noticing the deposition of the Person Most Qualified (PMQ), also known as Person Most Knowledgeable. (See Code Civ. Proc., & ) The notice should be directed to the entity itself, not an individual. Your notice must describe with reasonable particularity the matters on which examination is requested. (Code Civ. Proc., ) The corporation has a duty to produce the person most qualified to testify on its behalf. Further, the designated person has a duty to become educated regarding the matters at hand. Because the entity must produce a person to testify regarding any information known or reasonably available to the deponent, the PMK deponent must therefore be able to testify about the knowledge of corporate employees. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 [115 Cal.Rptr.2d 137].) Pair your PMK notice with an RFP and you have an extremely effective method of discovery to help you identify witnesses and evidence. Motions in limine Though not expressly authorized by statute, motions in limine (MILs) are commonly entertained within the trial court s inherent powers. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288 [245 Cal.Rptr. 873].) Per Evidence Code section 402, subdivision (b), the court has power to determine the admissibility of evidence outside the presence or hearing of the jury. Many, if not most, MILs are centered around Evidence Code section 352 unduly prejudicial evidence. Evidence Code section 352 gives the trial court broad discretion to exclude evidence in which probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. While the court has broad discretion here, it is not absolute. The court must exercise reasonable discretion in accord with the facts before it. (People v Rodrigues (1994) 8 Cal.4th 1060, 1124 [36 Cal.Rptr.2d 235]; Brainard v Cotner (1976) 59 Cal.App.3d 790, 796 [130 Cal.Rptr.915].) A balancing test is required, considering the relationship between the evidence, the relevant inferences drawn therefrom, whether the evidence is relevant to the main issue or a collateral issue, and whether the evidence is necessary for the proponent s case. (Kessler v Gray (1978) 77 Cal.App.3d 284, 291 [143 Cal.Rptr. 496].) MILs can be an invaluable tool in both keeping prejudicial or otherwise unsavory evidence out as well as learning about the other side s evidentiary concerns. Of course, this means that by bringing your own MILs, your opponent now has insight into your damaging evidence. As a more practical matter, MILs can assist you in narrowing your focus of issues for the judge, prepare you for witness testimony and assist in framing your opening statement. Additionally, using MILs to take care of certain pieces of evidence in advance of trial can minimize disruptions (i.e., sidebars) at trial, thus keeping a flow for the jury. Also consider using MILs to obtain an advance ruling on the admissibility of evidence prior to trial for such things as charts, models, recreations or videos. (See Wegner, Fairbank, et al., Cal. Practice Guide (The Rutter Group 2008): Civil Trials & Evidence 4:234.) Finally, if considering MILs, familiarize yourself with Kelly v New West Fed. Savings (1996) 49 Cal.App.4th 659 [56 See Evidence, Page 20

12 Evidence continued from Page 18 Cal.Rptr.2d 803]. Kelly is an important case for two reasons: (1) The Kelly opinion provides several situations where MILs should not be granted; and (2) it approves the longstanding use of MILs. (Id. at pp ) Trial considerations Coming Next Month Product Liability The Journal of Consumer Attorneys Associations for Southern California Opening statements Through your opening statement, your jury has its first exposure to the evidence you will show them. Eighty to ninety percent of jurors come to a decision during or immediately after the opening statement. (Haskins and Gardner (Spring 1990) 13 Trial Diplomacy J. 51.). Give your jurors a compelling reason to listen to you and soak in the evidence that you will show them. Make your first 20 seconds worth every penny spent on gathering, preparing and presenting your evidence. Methods of presenting evidence Wherever possible, offer graphics into evidence. (Wegner, Fairbank, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2008) 6:189.) Plan well in advance the evidence you will demonstrate in graphics. Consider placing inconsistent testimony into graphic form. This could be useful with admissions (as described above), as well as prior expert testimony. Learn how your judge feels about visual aids, charts, and enlarged photographs. Use of visual aids is discretionary with the court, not a matter of right. (People v. Green (1956) 47 Cal.2d 209, 215 [302 P.2d 307].) Work with your opposing counsel in an effort to stipulate to graphics or consider raising this issue with the court well in advance of trial. Be ready to provide foundation for your evidence and pay attention to the specific parts of the graphics that are of concern to opposing counsel. Learn from opposing counsel s objections and revise your graphics accordingly to avoid the objection and get the evidence in. Remember that once your graphic is admitted, it goes into the jury room possibly a great advantage for your case. Video presentations, whether videotaped depositions, crash test videos or day in the life videos, will break up the oftentimes monotonous testimony evidence. Use visual aids to retain the jury s attention. A picture is worth a thousand words; a good video is worth several million. (Mark P. Robinson, Jr.) Focus groups and jury consultants Hiring focus groups or jury consultants to analyze the demeanor of your witnesses is well worth the investment. A focus group can not only facilitate in deciphering the evidence to which your jury best responds, but can also assist with your witnesses in their verbal and physical effectiveness on the stand. If a focus group is out of the budget, spend some valuable time researching this yourself, and learn effective ways to prepare your witness beyond the verbal response. Recognize who is on your jury and how your witnesses demeanors, attitudes, body language and facial expressions play a large role in how they are perceived. After all, your witnesses are often your most important evidentiary vehicles. Be prepared for anything When it comes to evidence, expect the unexpected. Be willing to take action to continue improving the evidence in your case. For example, quick action and follow-through led to better evidence and victory in the following two cases. The surfer During voir dire in an automotivedefect trial, one of the potential jurors stated that he was an avid surfer and frequently surfed in the area where the automobiles were being held over before passing U.S. inspection. The Surfer disclosed that he had often observed the cars being delivered to the location and that he had seen vandals removing parts from the automobiles in the unattended lot. After the juror was excused, the plaintiff attorney s staff promptly handed a subpoena to the Surfer, who became a key witness to winning the case. The deer hunter In another automotive-defect case involving a woman who was brain damaged after her vehicle was rear-ended, the plaintiff s attorney was investigating why certain sheet-metal welds were faulty, allowing excessive intrusion into the passenger compartment. The plaintiff s attorney attended various automotive union workers meetings and then posted signs in the locker rooms, inquiring if anyone had any information about the welds. Shortly thereafter, a man responded to the posting, stating that he knew exactly why the welds were faulty: deer hunting season. He later testified that many of the skilled workers took vacation time during deer hunting season, so the company hired temporary, under-skilled employees to cover for the absent skilled employees. The company was well aware of this trend. Unfortunately, the temporary employees weren t so adept at welding and, as a result, the cars they worked on frequently came off the assembly line with numerous incomplete or failed welds. Through this evidence from the Deer Hunter, the plaintiff was able to establish that the welds at issue were made during deer-hunting season by under-skilled workers and that the company was aware of the risk. Verdict for plaintiff. The moral of the story: Recognize that your best evidence may not always come from conventional modes. Think outside the box and advocate for your client creatively and effectively to win your case. Molly K. O Brien is an associate with Robinson, Calcagnie & Robinson, located in Newport Beach. Robinson, Calcagnie & Robinson represent plaintiffs injured by automotive defects, defective pharmaceutical products and medical devices, fraudulent business practices and roadway design. THESE ARE THE AREAS OF OUR PRACTICE: INTELLECTUAL PROPERTY ANTITRUST CLASS ACTIONS ENVIRONMENTAL LIABILITY PHARMACEUTICAL LIABILITY MASS TORTS PRODUCT LIABILITY PROFESSIONAL LIABILITY PHONE: FACSIMILE: WILSHIRE BOULEVARD, LOS ANGELES, CA The Advocate Magazine MARCH 2009

13 Extensive broadcast news experience. William M. Karns Evidence of a defendant s financial condition in the punitive-damages phase of trial Although it may be rare to find yourself in the punitive-damages phase of a trial, there are some things you must know to maximize your recovery. First and foremost, evidence of a defendant s financial condition is a prerequisite to support an award for punitive damages. The plaintiff has the burden to present evidence of a defendant s financial condition to the jury. (Evid. Code, 500; see also Adams v. Murakami (1991) 54 Cal.3d 105, 119 [284 Cal.Rptr. 318].) This article addresses the various ways a plaintiff s attorney can obtain that evidence, and the procedural rules relating to the presentation of it. Civil Code section 3294, subdivision (a), paves the way for punitive damages. That section states, [i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. Attorneys tend to focus discovery on issues that support a finding of oppression, fraud, or malice. TIM CORCORAN MEDIATION Fellow, International Academy of Mediators Fellow, American College of Civil Trial Mediators Diplomat, California Academy of Distinguished Neutrals Redlands Arbitration and Mediation Services, Inc. 5 East Citrus Avenue, Suite 201, Redlands, California The Advocate Magazine MARCH 2009 This focus is paramount, since evidence of a defendant s financial condition is irrelevant without a finding of oppression, fraud, or malice. However, there are methods to conduct discovery, both formally and informally, of a defendant s financial condition. An effective pretrial discovery plan of a defendant s financial condition will not only give you a jump start on the discovery of key evidence that is too often ignored before trial, it could also result in a favorable settlement. Discovery of a defendant s financial condition by court order The general rule is that pretrial discovery of a defendant s financial condition, although relevant in a punitive damage claim, is prohibited. (Doak v. Superior Court of Los Angeles County (1968) 257 Cal.App.2d 825, [65 Cal.Rptr. 193].) Courts have upheld this general rule based upon public policy and the right of privacy arguments. But this has not always been the case. For a review of the development of this rule, and corresponding legislative history, see Rawnsley v. Superior Court (1986) 183 Cal.App.3d 86 [227 Cal.Rptr. 806]. The RAMS JUDICATE WEST Does it work? You bet. Juris Productions is one of the first calls I make when I sign a new case. Their settlement documentaries get big results. They're always in my corner. Browne Greene, Esq. Greene Broillet & Wheeler Whether we re taking on the world s largest entertainment corporations like Disney or leading car manufacturers for corporate malfeasance, Juris Productions helps us make a big impact. When our case demands video, we demand Juris Productions. Wylie Aitken, Esq. I m always impressed with the response I get using a Juris Productions documentary. I ve used other video companies but none does a more professional job or helps me settle so many cases so quickly. Brian Chase, Esq. Aitken Aitken & Cohn Bisnar & Chase general rule in no way diminishes the importance of this evidence. A defendant s net worth bears on the sting necessary to effectuate the punishment purposes of a punitive damages award. This remains the law post-state Farm Mutual Auto Insurance Company v. Campbell (2003) 538 U.S. 408 [123 S.Ct. 1513]. Notwithstanding the general rule, plaintiffs can still conduct discovery of a defendant s financial condition by way of court order. Civil Code section 3295, subdivision (c), states, No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. Civil Code section 3295, subdivision (a), paragraphs (1) and (2), refer to profits gained by wrongful conduct and the defendant s financial condition. This assumes that the plaintiff has properly pleaded a claim for punitive damages. A defendant s financial condition is not at issue absent a proper punitive damages claim, save several exceptions, and the plaintiff has no right to conduct discovery relating to it. (Brown v. Superior Court (1990) 224 Cal.App.3d 989, 994 [274 Cal.Rptr. 442].) The procedure to obtain a court order allowing pretrial discovery of a defendant s wealth is relatively simple. Procedurally, the order must be obtained by way of noticed motion. Civil Code section 3295, subdivision (c), gives further guidance, and states, in relevant part, Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the sup- See Condition, Page 24 expert storytellers Award-winning legal documentaries. High-profile national cases. Maximized settlements and verdicts. Our work speaks for itself

14 Counter the Defense Why hand your client to the opposition (or their agents) to plan & structure their settlement? ter the nse Income Tax Deferred Attorney Fee Structures Income Tax Free Claimant Structures Income Tax Deferred Taxable Settlements Michael J. Pickett, CSSC Certified Structured Settlement Consultant Structure Broker for over 24 Years Hawthorne Blvd., #205 S Torrance, CA License # ummit Founding Member Contributor to tructured CAALA s Politcal Action Committee ettlement National Structured NSSTA Settlements Trade Assn. ervices member Serving the State Bar since The Advocate Magazine MARCH 2009 Condition continued from Page 22 porting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 (emphasis added). Essentially, the plaintiff must file a noticed motion containing declarations that support a finding of oppression, fraud, or malice. Whether a hearing is required is left to the discretion of the court. Although the procedural process may be simple, the plaintiff s burden is not. What amounts to substantial probability is not crystal clear, and depends on the facts of your case, and your judge. Jabro v. Superior Court (2002) 95 Cal.App.4th 754 [115 Cal.Rptr.2d 843] provides some further guidance, stating that a court must (1) weigh the evidence presented by both sides, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. (Id. at p. 755 (emphasis added).) With terminology like substantial probability and very likely, it is obvious the burden for a court order allowing discovery into a defendant s wealth is high. A showing that it is probable there is oppression, fraud, or malice is insufficient. To prevail on a claim for punitive damages at trial, the plaintiff must prove oppression, fraud, or malice by clear and convincing evidence. Some judges require that burden of proof to entitle you to discovery of a defendant s financial condition. The plaintiff must go above and beyond what would be required to defeat summary adjudication. In practice, courts are reluctant to allow this discovery. Even so, with the right facts, moving for a court order pursuant to Civil Code section 3295, subdivision (c), can put enormous pressure upon the defendant ummit to settle. It should be noted that Civil Code section 3295, subdivision (c), applies to Services arbitrations as well. Plaintiffs must obtain a court order to conduct discovery with respect to a defendant s wealth in arbitration. (Code Civ. Proc., ) If the court finds there is a substantial probability that the plaintiff will pre- ettlement vail on the punitive damages claim and allows pretrial discovery of a defendant s financial condition, it is not a per se finding of oppression, fraud, or malice. Civil Code section 3295, subdivision (c), states that such an order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial. The plaintiff must still convince the trier of fact. If the court allows the discovery of a defendant s financial condition, be cautious about sharing the information. The defendant is presumptively entitled to a protective order that the disclosure of the financial documents is limited solely to the discovering party, its counsel, counsel s representative, and solely for the purposes of the pending lawsuit. (Richards v. Superior Court (1978) 86 Cal.App.3d 265 [150 Cal.Rptr. 77].) Civil Code section 3295 confers limited discovery ummit rights of a defendant s financial ettlement condition when punitive damages are alleged. This is not a plaintiff s only means of discovering a defendant s financial condition. Although this article focuses on the discovery of a defendant s financial condition when punitive damages are alleged, such information is discoverable when it is germane to a material issue in the case. Whether punitive damages are alleged or not is irrelevant. If the proof of an allegation is dependent upon the defendant s profits or wealth then it is discoverable. Conversion is the classic example. For further insight on these issues, and other circumstances in which a defendant s financial condition is discoverable absent a punitive damages claim, see Rawnsley v. Superior Court, supra, 183 Cal.App.3d 86. Similarly, evidence of a defendant s financial condition is admissible in the liability phase of trial if the evidence is relevant to liability or other issues not relating to the amount of punitive damages. (Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 939 [83 Cal.Rptr.2d 89].) In the foregoing cir- See Condition, Page 26 Services THE GARRETSON FIRM RESOLUTION GROUP FRUSTRATED? THE PLAINTIFF BAR FINALLY HAS A SOLUTION! [THE GARRETSON FIRM] Refocus your resources on litigation Improve your firm s cash flow Eliminate post settlement liability Avoid disruption of your client s benefits THE GARRETSON FIRM EVALUATES & RESOLVES: Medicare Reimbursement Claims Medicaid Liens Private Health / ERISA Liens Medicare Set Asides (Work Comp & Liability) Over the last several years, we have been assisting the plaintiff bar by navigating the changing regulations, protocols and contractors associated with liens in both Mass Tort and Personal Injury settlements. KNOWLEDGE. EXPERIENCE. COMPLIANCE. AAJ S ENDORSED MEDICARE & MEDICAID RESOURCE MARCH 2009 The Advocate Magazine 25

15 Condition continued from Page 24 cumstances, there would be no need to seek a court order pursuant to Civil Code section 3295, but expect to file some motions to compel. Obtaining the identity of key documents and witnesses in pretrial discovery There may be tactical reasons to not seek a court order pursuant to Civil Code section It may be futile given the facts of the case, and the reluctance of judges to grant the motion. If your motion fails you can expect the defendant at the close of plaintiff s case to ask for a nonsuit or directed verdict on the issue of punitive damages. The defendant will argue that the plaintiff has not produced any new evidence that would allow a jury to find oppression, fraud or malice than what was raised in plaintiff s motion. Defendant will argue the court denied that motion for discovery of defendant s financial condition, because it had not met the requisite burden of proof then, and it has not met it at trial. Choosing to make the motion should be determined on a case by case basis. No matter the decision, plaintiffs may still be able to discover the identity of key witnesses and financial records relating to the defendant s financial condition without the need for court order. Civil Code section 3295, subdivision (c), states, the defendant may be required to identify documents in the defendant s possession which are relevant and admissible for that purpose and the witnesses employed by or related to the defendant who would be most competent to testify to those facts. This allows plaintiffs to request the identity of documents and witnesses relating to profits or the financial condition of the defendant. Being thrust into the punitive damages phase of trial is stressful. Time is short, and you are about to enter the world of accounting. Knowing the identity of documents and the witnesses most competent to testify as to the defendant s profits and financial condition long before trial streamlines the process. Request that defendant identify documents relating to its financial condition, and the witnesses who are most qualified to testify as to those documents. See Condition, Page 28 Plan more. Control more. Expect more. Plaintiff-based Structured Financial Solutions Affiliated Company Loans to Litigators...Just Ask (888) Structured Settlements Our plaintiff-based approach and vast knowledge of financial settlement products ensures that your clients receive the best possible financial plan, individually tailored to meet their unique financial circumstances. We will educate your client Structured Settlements about their financial options every step of the way. Structured Attorneys Fees Structured Attorneys Fees You worked hard for your attorney fee, so why are you giving it Structured to the IRS so easily? Settlements Take advantage of the rare opportunity to defer taxation on earned fees. Structured Attorneys Fees Call or today. (818) Kittridge Street Van Nuys, California Bryan Milner bmilner@msettlements.com CA Lic. OCO1855 Louis E. Masry lmasry@msettlements.com CA Lic. OBO7464 Robert O. Olson rolson@msettlements.com CA Lic. OC44337 Major CAALA Supporter! 26 The Advocate Magazine MARCH 2009 MARCH 2009 The Advocate Magazine 27

16 Resolve Your Matter Now. Save Litigation Costs Confidential Reasonable Rates Condition cont. from Pg 26 personal injury real estate employment business insurance... Straus Institute-Trained Mediator AV-Rated Trial Attorney Also available at Judicate West CALL NOW TO SCHEDULE A HEARING (714) Gary N. Donovan, Esq. Informal discovery of a defendant s financial condition Google is an excellent starting point for informal discovery of a defendant. Defendants, and plaintiffs, are all over the Internet doing foolish things. They pose in front of expensive cars on Facebook. They rent out their condos in Mammoth on Craigslist. They blog. They even blog about your lawsuit. If you do not continuously monitor your defendants on the Internet, start. If you do not continuously monitor your client on the Internet, it is imperative you start. The Internet is an absolute goldmine for impeachment evidence on a defendant s financial condition. Financial information for public companies is easily accessible. The Securities and Exchange Commission maintains a Web site where electronic versions of financial reports can be downloaded ( SEC filings and corporate balance sheets can also be obtained through Yahoo Finance ( Google Finance ( finance and Virtually all businesses maintain a Web site. Perhaps chief of the many reasons for a business to maintain a Web site is to get more business. As a result, businesses project themselves as being rich on the Internet. This provides fantastic evidence to impeach the CFO or accountant who will invariably testify about the poor financial condition of the business. Insurance Code section 900 requires every insurance company to file with the state insurance commissioner statements exhibiting its condition and affairs every year. These statements include the overall viability and assets of the company. This information is key in insurance bad-faith cases. The files can be found at the California Department of Insurance Web site ( Filings are updated on March 1 every year. Plaintiffs can also purchase asset checks of individuals and businesses. See Condition, Page The Advocate Magazine MARCH 2009 MARCH 2009 The Advocate Magazine 29

17 Condition continued from Page 28 These asset checks range in degree of detail and price. Repeated asset checks may be useful to demonstrate to the jury that the defendant is playing fast and loose with his claim of limited assets. It may also be useful to establish that the defendant has fraudulently conveyed assets in an attempt to frustrate your efforts to collect a judgment. Asset checks can be instrumental in understanding the settlement value of a case. One attorney, and CAALA member, recently discovered several large income properties owned by a seemingly poor defendant overseas that were not disclosed in deposition. Needless to say, the value of that case We provide solutions. 23 Years of Professional Service Locates Asset Investigations Background Investigations Personal Injury The Power of Knowledge. Lic. # PI increased significantly. Consult the CAALA list of vendors for companies that provide asset checks. Evidence of a defendant s financial condition at trial Typically, a defendant will seek bifurcation of profits and financial-condition evidence from the liability phase of trial. Civil Code section 3295, subdivision (d), states: The court shall, on application of any defendant, preclude the admission of evidence of that defendant s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud. Evidence of profit and financial condition shall be presented to the same trier of fact that found for the plaintiff and found one or more defendants guilty of malice, oppression, or fraud. In practice this is essentially a motion in limine precluding evidence of defendant s financial condition until a finding of actual injury, and malice, oppression, or fraud. In the first phase of a bifurcated trial, the jury will consider liability, causation, actual injury, and whether there is clear and convincing evidence that would support a punitive damages award. The jury cannot consider evidence relating to the amount of the punitive damages award. However, if the defendant chooses not to bifurcate, the plaintiff can go ahead and present evidence in support of the amount of a punitive damages award. If the defendant has minimal assets, but has insurance, the plaintiff should request a bifurcation. If the jury hears evidence of limited financial worth during the compensatory damage phase of the case, the jury may be reluctant to award substantial compensatory damages. Civil Code section 3295, subdivision (c) does not bar a plaintiff from subpoenaing relevant profits and financial condition evidence for trial. (Civ. Code, 3295 subd. (c).) The only caveat is the plaintiff cannot look at the documents until the condition of Civil Code section 3295, subdivision (d), are met: that a jury returns a verdict for actual damages and a finding of oppression, fraud or malice. If the jury finds for the plaintiff on these issues, the plaintiff may examine the relevant financial information and introduce the evidence during the bifurcated portion of the trial. It is important to understand that plaintiffs have the burden of producing meaningful evidence of a defendant s financial condition to support an award for punitive damages. (Evid. Code, 500; see also Adams v. Murakami, supra, 54 Cal.3d 105.) Plaintiffs cannot rely on the defendant to set forth their financial condition at trial. The plaintiff must subpoena the necessary witnesses and documents for trial. Plaintiff must also depose identified witnesses and persons most qualified to testify on the overall financial condition of the defendant after the jury finds malice, fraud, or oppression. If an accurate and complete picture of the defendant s financial condition is not presented to the jury by the plaintiff, a punitive damages award is vulnerable to reversal on appeal. (See Baxter v. Peterson (2007) 150 Cal.App.4th 673 [58 Cal.Rptr.3d 686]; and Lara v. Cadag (1993) 13 Cal.App.4th 1061 [16 Cal.Rptr.2d 811].) Do not rely solely on net worth, gross income, or gross assets. There are a number of other items that reflect on a defendant s overall financial condition. This burden puts the plaintiff in a relatively precarious position. The plaintiff has the obligation to show the defendant s cards, but the defendant still controls the deck. If a defendant hides the ball by refusing to produce financial information, the defendant is presumed to have waived its right to challenge a punitive damages award based upon lack of wealth evidence. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, [92 Cal.Rptr.2d 897].) In the situation where the defendant is hiding the ball, request that the court give CACI Jury Instruction No. 203, which states, You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence. You may request that the court instruct that the defendant s evidence should be viewed with distrust. This instruction is based upon Evidence Code section 412. What kinds of evidence you want Two words of caution with discovery of defendant s wealth: be broad. Make sure discovery is designed to obtain the defendant s complete financial condition. Do not shy away from discoverable items that would show the defendant is not wealthy. Plaintiffs have the burden of producing meaningful evidence of a Defendant s financial condition to support an award for punitive damages. If it s good for your case or bad, it must be shown to the jury if you want your award upheld. Again, go beyond net worth, gross income, and gross assets. In addition to broad categories, such as, All documents relating to defendant s assets..., be sure to also request credit information, liabilities, tax returns with all schedules (portions of tax returns may be privileged), W-2s, 1099s, luxury items, accounts receivable, audits and reviews, general ledgers, trial balances, balance sheet reports, income statement records, rent reports, payable reports, cash disbursement reports, cash receipts reports, cash flow reports, real property statements, personal property statements, credit reports, and loan and credit applications. Loan and credit applications are terrific sources of information. When a person wants to borrow money, he is more likely to exaggerate his financial worth in order to secure a loan. If you examine the defendant during the punitive damages phase of trial, the defendant will be hard-pressed to tell the jury that he really does not have the asset he listed on the loan application. Is he going to admit he lied to get the loan? If he makes such an admission, remind the jury during argument that the defendant has admitted that he is willing to lie to achieve what he wants. Conclusion Although it may be rare, even lucky, to be in the punitive damages phase of trial, that does not mean that you should not be prepared for it. Bill Karns is an associate at the law firm of Cheong, Denove, Rowell and Bennett. He specializes in litigation of catastrophic injury cases and business torts. SAVE YOUR CASES FROM THE JAWS OF BANKRUPTCY Don t let them become bait for fraudulent or preferential transfers or bankruptcy discharges. Bankruptcy & litigation attorney with offices in Beverly Hills and Westlake Village and with more than 30 years of experience seeks to consult or associate with firm(s) looking for bankruptcy assistance. Settlement & Pre-Settlement Planning & Protection Judgment & Pre-Judgment Planning & Protection Creditor & Debtor Representation Corporate & Personal Bankruptcy Strategic Bankruptcy & Litigation Planning Business Litigation UCLA Law School Graduate Phi Beta Kappa Magna Cum Laude Balance the scales in your clients favor. Keep your clients in-house. LAW OFFICES OF PHILIP D. DAPEER A LAW CORPORATION BankruptcyFocus@aol.com The Advocate Magazine MARCH 2009 MARCH 2009 The Advocate Magazine 31

18 About this Issue Jeffrey Isaac Ehrlich When discretion goes too far: Monroy v. City of Los Angeles a rare appellate reversal based on a trial court s erroneous evidentiary rulings One of the first questions that potential clients tend to ask me when they are considering bringing me into a case to handle the appeal is what my sense is of the odds that they will prevail. Although I am loath to admit it and dispel the mystique of being a certified appellate specialist, there is a fairly easy way to answer this question accurately in most cases: As a general rule, the best way to predict the outcome of an appeal is to look at what happened in the trial court. The rules of appellate review are not designed to produce reversals; they are designed to affirm the result below unless there has been some egregious error. So if the client lost below, it is likely that the appeal will be unsuccessful. That s just how the system is designed to work. Evidentiary issues When the issue that the potential client wants to raise on appeal is the trial court s ruling on evidentiary issues, the odds of a reversal are usually remote for several related reasons. First, evidentiary objections must be timely made in order to preserve an issue for an appeal. If no objection is made, the issue is waived. In addition, the precise ground for the objection must be stated. It s not permissible to object on one basis in the trial court, and then offer a different basis to support the objection on appeal even if the new ground is well taken. (Evid. Code, 353; Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 865 [1236 Cal.Rptr. 778], disapproved on other grounds, People v. Ault (2004) 33 Cal.4th 1250 [17 Cal.Rptr.3d 302].) Second, trial courts are generally accorded considerable discretion in deciding what evidence to admit and what evidence to exclude, and appellate courts are typically not eager to second-guess these decisions. And even if the appellate court concludes that the trial court did err, there can be no reversal unless the appellate court concludes that the error resulted in a miscarriage of justice. These rules are codified at Section 353 of the California Evidence Code, which says: 353. Erroneous admission of evidence; effect A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice. Given the slim odds of winning an appeal based on a challenge to the trial court s evidentiary rulings, the decision in Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248 [78 Cal.Rptr.3d 738] is particularly remarkable. Monroy reversed a jury verdict in favor of the defendant City of Los Angeles in a case for injuries arising out of a police chase based solely upon the trial judge s evidentiary rulings. The rulings by the trial court were surely harsh, but not necessarily unusual. Monroy is therefore a case that every trial lawyer needs to know in order to respond to the kind of overly restrictive rulings that can gut an otherwise solid case. The facts On September 4, 2004, Saturday of Labor Day weekend at approximately 10:45 p.m., Yesenia Monroy was driving her car eastbound on Third Street in Los Angeles, with her child sitting in a child safety seat in the back of the car. LAPD Officer Felipe Jesus Arreola was driving an LAPD patrol car on routine patrol when he heard a radio call from a gang unit in the area requesting backup for a foot pursuit of a man with a gun. The operator designated the call as Code 2 and directed another police unit to respond. A Code 2 is an urgent, but non-emergency, response request requiring those police vehicles responding to obey the rules of the road. A backup call is a Code 2. Officer Arreola s partner, Officer Garcia, advised that they were backing, i.e., they were responding to a Code 2. Officer Arreola made a right turn and headed southbound. It was a very short distance to the intersection of Boyle Avenue and First Street. Officer Arreola turned on his siren and his overhead emergency lights, passed through the intersection at Boyle Avenue and First Street where there was a red light, and continued southbound on Boyle Avenue toward Third Street. Once Officer Arreola passed through the intersection of Boyle Avenue and First Street, he turned off the siren. He did not remember if he also turned off the overhead lights. He accelerated. Within moments, his vehicle was almost at Third Street where he saw Monroy s vehicle. Officer Arreola applied the brakes of the patrol vehicle, but could not avoid colliding with Monroy. Before the collision neither Officer Arreola nor Officer Garcia notified the dispatcher that either of them had upgraded the call to a Code 3. A Code 3 exempts emergency vehicles from rules of the road under certain circumstances. In his deposition, Officer Arreola testified that when he received the radio call for backup, he responded, Code 2, Code 2 High. (The high designation, which See Discretion, Page 34 Videotek West sets the standard for excellence for all your technology and video needs. 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19 Coming to a Mediation near you.. STEVE MEHTA You have a rare gift to bring about a meeting of the minds... Kathryn DiCarlo This man is a miracle worker. Adam Silverstein SUPERLAWYER MEDIATOR VALENCIA CENTURY CITY MEDIATIONS THROUGHOUT CALIFORNIA 34 The Advocate Magazine MARCH 2009 Discretion continued from Page 32 designated a greater emergency than a Code 2, was no longer in use in 2004.) However, at trial, Officer Arreola testified that he initially responded to the call as Code 2, but when he turned on the siren and lights he upgraded the call in his mind to Code 3. The posted speed limit in the area of the collision was 25 miles per hour. Officer Arreola testified he was traveling between 35 and 45 miles per hour. Three experts confirmed Officer Arreola s testimony that Officer Arreola was speeding at the time of the collision. The experts estimated that the police vehicle s speed at the point of impact ranged between 44 and 47 miles per hour; and his pre-braking speed was between 51 and 65 miles per hour. The LAPD s pre-trial admissions Before trial the LAPD responded to plaintiffs requests for admissions. The following admissions made by the LAPD would be read to the jury: Admission No. 44: The LAPD has no civilian witness that heard the patrol vehicle s sirens activated at the point of impact. Admission No. 45: The LAPD has no civilian witness that heard the patrol vehicle s sirens activated as it... entered the intersection at the location of the collision. Admission No. 64: At the time of the collision, Officer... Arreola was required to obey the California Vehicle Code. Admission No. 68: At the time of the collision, Officer... Arreola had a duty to drive with due regard for the safety of all persons using Boyle Avenue. Admission No. 69: At the time of the collision, Officer... Arreola had a duty to drive with due regard for the safety of... Monroy. Admission No. 71: At the time of the collision, Officer... Arreola was not responding Code 3. Admission No. 75: At the time of the collision, LAPD policy required LAPD officers to obey the California Vehicle Code when responding Code 2. Admission No. 77: LAPD policy requires LAPD officers to obey the California Vehicle Code when responding Code 2. Admission No. 83: According to LAPD policy, a backup request is a Code 2 response. Admission No. 84: At the time of the collision, LAPD policy required LAPD officers to respond Code 2 when responding to a backup request. Before trial the plaintiffs brought a motion in limine to exclude comments, argument, or reference to, any exemption from, compliance with the Vehicle Code or traffic laws for police vehicles under Vehicle Code section 21055; and to preclude any jury instructions or special verdict forms on the emergency vehicle exemption under Vehicle Code section (Veh. Code, provides an exemption from liability for vehicles responding to an emergency in certain situations. One of the conditions for the statute to apply is the use of lights and siren while responding.) The trial court granted the motion without prejudice, subject to defendants establishing a sufficient foundation. The trial The case was tried in the Mosk Courthouse in downtown Los Angeles, before the Hon. Kenneth Freeman. At trial there was extensive testimony about the meaning of Code 2, Code 3 and LAPD policies. Among other factual disputes, the parties contested whether Officer Arreola turned off both the siren and the overhead lights after he had gone through the intersection at First Street and Boyle Avenue. The eyewitness testimony Plaintiffs had been able to locate an eyewitness, Juan De Los Santos, who was selling tacos from a vending cart near the intersection where the chase started. In his deposition he testified that he saw the police vehicle as it entered the intersection of First Street and Boyle Avenue and until the time it collided with Monroy s car. He testified that he initially heard the siren and saw the overhead lights turned on, but that both the siren and lights had been turned off at the See Discretion, Page 36 The California Institute For Orthopedic, Neurological and Spinal Injuries and Disorders Orthopedic Surgery, Spine Surgery, Neurosurgery Neurology Physical and Internal Medicine Rehabilitation Chiropractic Medicine Pain Management Multilingual Staff Flexible Treatment Hours Monday - Friday We are a group of highly-experienced, board-certified physicians offering you a world of unparalleled excellence and expertise in our fields. The total solution for all your medical-legal evaluation and treatment needs on liens for personal injury and work comp patients. Khalid B. Ahmed Medical Director Board-Certified Orthopedic Surgeon 5 Locations to Serve You PICO RIVERA WHITTIER POMONA TEMECULA & SAN DIEGO COUNTY SAN BERNARDINO COUNTY ,000 sq. ft. of state-of-the-art treatment space

20 Discretion continued from Page 34 Time & Money time of the collision. De Los Santos explained that he was not in the U.S. legally, that he was getting divorced and planned to return to Mexico to open a restaurant. Because the parties anticipated that it might be difficult to arrange for him to review the deposition transcript with a court-certified interpreter, they stipulated that if this could not be arranged that an unsigned copy could be used as an original. The plaintiffs sought to use De Los Santos s deposition at trial, but the defense objected, claiming that plaintiffs had not been diligent in seeking to obtain his testimony and that there was no showing that he resided more than 150 miles from Los Angeles. At hearings on the issue, plaintiffs put on the testimony of a private investigator, who had been unable to locate De Los Santos in the U.S., but who had obtained his telephone number in Puebla, Mexico. They also put on the testimony of his former wife, who testified that he had told her he was going back to Mexico, that he was living in Puebla, Mexico, had been in an accident and could not drive, and that he was a Mexican citizen without a visa. The trial court ruled that this testimony was inadmissible hearsay, and that plaintiffs had not made a sufficient showing that De Los Santos resided more than 150 miles from the courthouse. It refused to allow plaintiffs to put his deposition testimony into evidence. Is Your Asset Whether you need a Basic Asset Search to cover your rear in a routine insurance settlement, or have us dig deep for hidden assets on a high value case, Tristar takes the risk off your shoulders with our full line of Asset Searches. We ve been doing it right for 30 years and we carry $2M in E&O coverage The Advocate Magazine MARCH 2009 The expert testimony concerning Vehicle Code section The defense called expert Ronald Moen to testify about LAPD s training with regard to Vehicle Code section Plaintiffs argued that defendants pretrial admissions made Section inapplicable and precluded most of Moen s testimony. The trial court held a hearing outside the presence of the jury to determine the effect of the admissions. In addition to other arguments, defendants asserted that the admissions read to the jury (including Admissions Nos. 44, 45, 64, 68, 69, 71, 75, 77, 83, and 84) did not preclude Moen s testimony. Defendants brought to the trial court s attention three other requests for admissions (Admissions Nos. 66, 70, 76) that plaintiffs had not submitted to the jury. Defendants argued these three admissions elucidated and explained the admissions relied upon by defendants, e.g., Admissions Nos. 44, 45, 64, 68, 69, 71, 75, 77, 83, and 84, and thus, it was proper to admit Moen s testimony. Defendants also asserted that the evidentiary matters contained in the testimony had established a factual basis for the application of Vehicle Code section The trial court ruled, I find that there is enough of a factual dispute that these in comparing your requests for (310) Exposed? If you want it done on time, done right the first time, and done well, Tristar is the one to call. Steven C. Glickman, Esq. Past President CAALA admissions with [those brought to the attention of the court by defendants] plus the evidence that I ve heard so far, I don t believe that you have established issue preclusion at this point in time on that basis. After the close of evidence, the trial court instructed the jury with the law pursuant to Vehicle Code section 21055, as requested by defendants. The restrictions on expert testimony Judge Freeman permitted only one expert to testify to the same opinion, including percipient witnesses, regardless of which party elicited the testimony. Thus, for example, plaintiffs were permitted to call a witness in their case in chief, but were precluded from asking other experts to render an opinion on the same issue. At times, this prevented plaintiffs experts from rendering an opinion that already had been elicited from a defense expert or from police personnel. For example, the parties contested whether the police vehicle s high beams on the headlights were off or on at the time of the collision. Plaintiffs first called an LAPD criminalist to testify on this issue. But when plaintiffs sought to introduce evidence from their own accident reconstruction expert on the same issue, the trial court severely curtailed the questioning. The jury rendered a nine-to-three verdict in favor of defendants, finding Officer Areola had not been negligent. Plaintiffs appealed based on the court s evidentiary rulings: (1) allowing testimony and instructing the jury concerning Vehicle Code section 21055; (2) refusing to allow the De Los Santos deposition testimony into evidence; and (3) improperly curtailing the examination of the plaintiff s experts. The Court of Appeal reversed, finding that each ground independently required reversal. Error in allowing testimony at odds with the LAPD s admissions The Court of Appeal held that it was error for the trial court to allow the LAPD to introduce evidence at variance with its responses to the requests for See Discretion, Page 38 WE HELP YOU INCREASE BOTH ffice overhead fficiency Consumer Attorneys offers practical solutions and resources to improve your practice... helping you to better serve your clients. Join today at caala.org Consumer Attorneys Association of Los Angeles 800 W. 6th St., Suite #700 Los Angeles, CA Tel: (213) Fax: (213) MARCH 2009 The Advocate Magazine 37