VISIT US ONLINE WWW.SFTLA.ORG Serving The Members Of SFTLA Since 1950 The Trial Lawyer Spring 2015 Is Mediation the Best Course For Resolving Disputes? Guy O. Kornblum Page 12 HOW A TRIAL LAWYER WRITES A BOOK Page 32 CREDIT DAMAGE: AN OVERLOOKED INJURY Page 18
The Trial Lawyer SPRING 2015 Contents ADVERTISERS INDEX Aragon-Hass............... IC features 12 Is Mediation the Best Course for Resolving Disputes? by Guy O. Kornblum columns 08 Court Watch by Shannan Dugan Mediation Program Restored and more... 10 Verdicts by Christofer C. Nolan Noteworthy Verdicts for Deserving Plaintiffs 18 Practice Tips by William Matz and Georg Finder Credit Damage: An Overlooked Injury in Tort Litigation 24 Events Photography by Melanie Rovens 2015 Trial Lawyer of the Year 32 Closing Argument by Walter Skip Walker How a Trial Lawyer Writes a Book departments 02 MCLE Calender 04 President s Message by Doris Cheng Arbitration vs. Trial: The Public s Right to Know 07 Editor s Message by Shannan Dugan Fighters Deserve Recognition 26 CAOC Corner by Nancy Peverini, CAOC Legislative Director Statehouse 2015: Some New Year s Predictions Lesti Structured Settlements, Inc....... 3 The Dolan Law Firm............ 5 Henderson SFIS.............. 6 JAMS.................. 9 Mass Mutual............... 15 Professional Inquiry Associates....... 15 Patrick & Company............ 17 Trialsmith................. 17 Mark Houlihan, The Howlands Group... 20 Barbagelata & Associates......... 20 Fishkin Slatter LLP............ 20 David Michael Bigeleisen.......... 23 Mediation Offices of James F. Lynch.... 23 ATLAS..................27 Morgan Stanley............. 28 Alliance Settlement West......... 29 Bohbot & Riles..............29 Patrick Farber.............. 30 Derish Associates............. 31 Mechanics Bank............. 33 Karp Capital Managment........ BC The Trial Lawyer Spring 2015 1
SFTLA CALENDAR OF EVENTS What s happening 2015 The Trial Lawyer 2015 Officers Doris Cheng, President Christopher Dolan, President-Elect June Bashant, Vice President Anthony Label, Secretary Karine Bohbot, Treasurer Robert Cartwright, Parlimentarian Roundtable: May 21 NLD: May 21 Roundtable: May 26 MCLE: June 9** NLD: June 11 Roundtable: June 16 Roundtable: July 14 Caucus: July 30 (PM) Using Graphics to Persuade Happy Hour Takeover Prepping Your Client for Deposition & Mediation Chair: Sandra Ribera Life Care Planning Chair: John Hullverson Sponsored by Morgan Stanley New Lawyers Division Summer Bash Trial Technology Chairs: Miles Cooper, Jeff Smith & Morgan Smith Finding and Using Evidence to Prepare for Trial: Discovery Motions, MSJs and Mediation Chair: Karman Ratliff & Demian Oksendler Preparing for Trial- using mock trials and focus groups Chair: Bobby Shukla Caucus Gold Sponsors: The Veen Firm & Atlas Settlement Group Board of Directors Robert S. Arns Boone Callaway Sanford M. Cipinko Carolyn Cottrell Quinton Cutlip Anthony P. David Daniel Dell Osso Shannan Dugan Amy Eskin Lee Harris John Hill John Hullverson Committee Chairs ADR Oversight Committee: Daniel Dell Osso, Wes Lowe Committee on Directors: Markus Willoughby, Karine Bohbot The Carlene Caldwell Scholarship: Markus Willoughby Diversity Committee: Shaana Rahman Experts Committee: Quinton Cutlip Education Committee: Boone Callaway, Craig Peters Finance Committee: Karine Bohbot Listserv Committee Mark Zanobini Magazine Committee: Shannan Dugan Membership: June Bashant, Todd Walberg New Lawyers Division: Anthony Label, Seth Rosenberg Public Education: Robert Cartwright Trial Court Oversight: John Hill, Robert Cartwright Women s Caucus: Carolyn Cottrell, Andje Medina AD Hoc Committees & Liaison Positions CAOC Liaison: Lee Harris AAJ Liaison: Rob Cartwright, Chris Dolan Trial Watch Liaison: TBA Executive Director Juliette Bleecker Magazine Editor Shannan Dugan Micha Star Liberty Wesley Lowe Shaana Rahman Sandra Ribera Albert G. Stoll, Jr. Todd Walberg Guy Wallace Mary Catherine Wiederhold Markus Willoughby Roundtable: August 18 NLD: August 20 MCLE: September 1 TBI Chair: Anthony label Case Intake Chair: Seth Rosenberg Liens (PM CLASS) Chair: Scott Sumner The Trial Lawyer is published by The San Francisco Trial Lawyers Association 311 California Street # 620 San Francisco, CA 94104 Phone: (415) 956-6401 FAX: (415) 956-6680 email: admin@sftla.org www.sftla.org 2 The Trial Lawyer Winter 2015
We build secure Structured Settlements for Plaintiffs Specializing in profoundly injured minors and deferred legal fees. Qualifications include the following: Over 20 years of experience A degree in Economics from the University of California, Berkeley An exclusive plaintiff-only practice Expert witness in Economics & Structured Settlements Author of Structured Settlements, 2nd Clark Boardman Callahan, 1993 Certified Structured Settlement Consultant My job is to decide what my client needs, not to wait and see what the defense offers. I want someone who shares my commitment in looking after the best interests of my client. That s why I work with Paul Gary Gwilliam, of Gwilliam, Ivary, Chiosso, Cavalli & Brewer Valued customers since 1984 Paul s philosophy is simple: By serving as your trusted structured settlement broker and advisor, I secure the highest value for your client and help you perform your due diligence. Paul J. Lesti, CSSC 888.LESTISS 5 3 7 8 4 7 7 www.lesti.com paul@lesti.com 745 Distel Dr., Ste. 114, Los Altos, CA 94022 The Trial Lawyer Spring 2015 3
PRESIDENT S MESSAGE by Doris Cheng Arbitration vs. Trial: The Public s Right to Know Doris Cheng is ranked as one of the top 50 women lawyers in Northern California. She is listed among the Best Lawyers of America, SuperLawyers and San Francisco Best Lawyers. Specializing in complex injuries caused by third party faults, Ms. Cheng has trained lawyers and judges nationally and internationally. She curently serves as President of SFTLA. I was privileged to witness a small part of the Ellen Pao v. Kleiner Perkins trial one morning. It was astounding how many members of the public, including a group of students from St. Cecilia s Elementary School, were present. The court opened two courtrooms to accommodate the number of spectators. This gender discrimination case was also being closely followed by every major newspaper and internet news site. But no one would have known about this trial if the defense had succeeded in its motion to compel arbitration. Within thirty days of receiving the complaint, Kleiner Perkins filed its Answer and a Motion to Compel Arbitration. What a disservice to women and the public at large it would have been if this case had been cloistered in private arbitration. The young girls from St. Cecilia Elementary School would never have been exposed to the The push for arbitration to bury all varieties of misconduct continues to be rampant. SFTLA s Public Education Committee is working on 7th Amendment issues. Visit us on-line at https://www.facebook.com/groups/ 7thamendmentproject/ or join our Committee by emailing Juliette at admin@sftla.org strength and courage of Ellen Pao. The public would not have learned the truth about the challenges women continue to face in the high level corporate positions, and in particular, the tech industry. The New York Times reported some of the details, such as comments from one of the partners, Chi-Hua Chien, that women should not be invited to a dinner with former Vice President Al Gore because they kill the buzz. A senior partner at the time, Ray Lane, joked to a junior partner that she should be flattered that a colleague showed up at her hotel room door wearing only a bathrobe. The push for arbitration to bury all varieties of misconduct continues to be rampant. Just last December, the National Academy of Sciences held a forum discussion about Arbitration as an Alternative to Litigation for Claims of Medical Malpractice. The discussion focused on the pros and cons concerning the logistics of running a private judicial system, ignoring the question about the societal impact of keeping matters of public health and safety enshrouded in a private conference room versus a public courtroom. All too often these days, people cast aside the importance of the Seventh Amendment right to trial by jury in a civil case, citing high costs and inconvenience to litigants and jurors. It is curious how willing the advocates for widespread arbitration choose to sell civil rights in the name of convenience. As trial lawyers, we need to stand up for the Seventh Amendment. Let us not forget that the right to trial by jury assures the right to fair and equal participation in a democracy and education about matters of public interest. Before we give up the right to test our convictions in a public forum, before we back down to mandatory pre-dispute arbitrations, or before we agree to protective orders that keep important documents confidential, let us think about the impact of our actions on those around us and those who come after us. With this message, I would like to salute SFTLA past president Therese Lawless and Alan Exelrod, for fighting so hard to keep the Ellen Pao case in court. They succeeded, and we all benefitted. Doris Cheng SFTLA President 4 The Trial Lawyer Winter 2015
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EDITOR S MESSAGE by Shannan Dugan Fighters Deserve Recognition To strive with difficulties, and to conquer them, is the highest human felicity. Samuel Johnson. Many of us watched the television series Mad Men, which just ended its eight-year run. The clothes, the hairstyles, the sleek 1960 s furniture, all had a certain allure. The men were handsome (until the series entered the Seventies and they acquired those mustaches). The women, restrictive undergarments intact, looked downright glamorous. But what was most compelling was the transition of the female characters from 1960 to 1970. While Don Draper remained skinnytied and boozing his way into the future, the women -- Peggy, Joan and even Betty-- transformed before our eyes, reflecting the changing times. I see my mother in the show s characters. Divorced in 1973, catapulted from idyllic Walnut Creek suburbs into the more rough and tumble environment of Hayward, she went back to school for her Ph.D. in psychology, got her first full time job at age 37, and raised two kids on basically nothing. My hero, and a real feminist, even if she doesn t claim that label. I watched it, Mom, but you lived it. Mad Men initially reflects a period where consumers, largely women, were told that genuine fulfillment could be found in a new vacuum cleaner and a spotless house. Buying = happiness. Not true, but quite an effective sales pitch for awhile. The Feminine Mystique by Betty Friedan extensively details the deliberate orchestration of business and advertising to keep women at home in the post-war boom. Having just read the book, I can say it s quite shocking. Working conditions have certainly improved for women over the years, thanks to men and women, like you, who have fought to change and enforce the laws. To paraphrase that quintessentially Seventies ad for Charlie perfume, we ve come a long way baby. But there is still a long way to go, as the Ellen Pao case revealed. In the case that had EVERYONE talking, Therese Lawless and Alan Exelrod took on not only Kleiner Perkins but the double standards that exist for many women in the workforce. When a mirror was held up to the work culture in Silicon Valley, it didn t come out looking too pretty. Victory in that case wasn t defined by the verdict; it was defined by advancing the discussion of what truly diversifying means. As SFTLA President Doris Cheng says, Therese, Alan, and Ellen were victors just by getting beyond arbitration and taking their fight to the publicly litigated floor. Other fighters deserve recognition and this issue would not be complete without sending heartfelt congratulations to all honorees at SFTLA s Trial Lawyer of the Year gala, held on April 16. The TLOY finalists included Steve Brady ( Kenneth Dent v. Marin Cleaners); Jonathan Gertler and Nance Becker (Villanueva, et al. v. Fidelity National Title Company); Gil Purcell, Jennifer Alesio, and Jason Rose (Tajie Major v. Lorillard Tobacco Company and Whalen v. John Crane, Inc.) ; and William Veen, Micha Star Liberty, and Jeremy Cloyd (Denis Le Moullac and Jessie Jewitt v. Daylight Foods, Inc.). Trial Lawyer of the Year went to Gil Purcell, Jennifer Alesio, and Jason Rose for their two cases, one against a tobacco company, for purposefully designing, creating and sustaining addiction to nicotine by exposing the plaintiff to unnecessarily high levels of nicotine; the other, a mesothelioma case where a manufacturing company was held responsible for failing to test and warn a navy worker about the haz- Shannan Dugan is a former prosecutor with the San Francisco District Attorney s Office and has practiced criminal defense at the Law Offices of Shannan Dugan for 17 years. She has also represented clients in personal injury cases and is a longtime SFTLA board member. ards associated with its asbestos-containing products. TLOY also honored veteran trial lawyer Cynthia McGuinn, with the Lifetime Achievement Award, and Karine Bohbot received the Civil Justice Award for her dedication and trial skills. SFTLA awarded its first ever Investigative Reporter honor to Bryan Goebel, and William Strickland was named Distinguished Mediator of the Year. Members, we know how hard you work and we recognize all that you do, even if we can t give out awards to everyone. As Marian Wright Edelman of the Children s Defense Fund says : You re not obligated to win. You re obligated to do the best you can every day. And we thank you for doing just that. The Trial Lawyer Spring 2015 7
COURT WATCH Mediation Program Restored and More... By Shannan Dugan Here s what s new at the San Francisco Superior Court, according to the Court s website: San Francisco Superior Court Restores Voluntary Judicial Mediation Program Effective March 23, the San Francisco Superior Court restored its Voluntary Judicial Mediation Program, which was eliminated in 2011 because of state budget cuts. Parties appreciate hearing about the real trial results that the Judges see firsthand, said Presiding Judge John K. Stewart when the program was announced. Judges can impart that knowledge to the parties during the mediation process, which can be very grounding. Judicial mediation offers civil litigants the opportunity to engage in mediation of a case any time after filing the complaint in an effort to resolve the matter. The parties may indicate a preference for up to three Judges from a roster that includes: Judge Michael I. Begert; Judge Suzanne R. Bolanos; Judge Angela Bradstreet; Judge Andrew Y.W. Cheng; Judge Samuel K. Feng; Judge Charles F. Haines; Judge Harold E. Kahn; Judge Curtis E.A. Karnow; Judge Charlene P. Klesselbach; Judge James Robertson, II; Judge Richard B. Ulmer, Jr.; and Judge Mary E. Wiss. All the judges on the panel are experienced, motivated to serve and willing to work after-hours to get this done, said Judge Stewart. Although not guaranteed, every effort will be made to fulfill the parties preferences. Parties are required to file a Stipulation to Alternative Dispute Resolution (ADR), and deliver a courtesy copy to Department 610. The Court will assist in coordinating assignments of cases for the program. Cases that will be considered for participation in the program include, but are not limited to: Personal Injury; Professional Malpractice; Construction; Employment; Insurance Coverage Disputes; Mass Torts; and Complex Litigation. Asbestos cases, along with Housing and Small Claims, have their own settlement programs and will not be included in the program. The Voluntary Judicial Mediation Program is one of five ADR programs available to San Francisco Superior Court litigants. The other programs are the: Early Settlement Program of the Bar Association of San Francisco (BASF); Mediation Service of BASF; Private Mediation; and Judicial Arbitration. San Francisco Superior Court Expands Interpreter Services in Civil Cases Effective last January, the San Francisco Superior Court expanded the case types for which interpreters will be made available, in accordance with a new state law that authorizes the Court to provide interpreters to civil litigants that do not proficiently speak or understand the English language. Parties involved in Criminal, Traffic, Juvenile, Civil or Family law cases may request the services of an interpreter from the Clerk s office or the courtroom clerk. If an interpreter is not available at the time of the hearing, the Court may continue the case until an interpreter can be assigned. Parties should request an interpreter when filing a motion or response. AB 1657 requires interpreters to be provided in any civil action or proceeding at no cost to the parties, regardless of income. The law would require interpreters to be provided in accordance with a specified order of priority until sufficient funds are appropriated to provide an interpreter for civil litigants who need an interpreter. Before the Governor signed AB 1657 into state law on September 28, 2014, state law generally required civil litigants to pay court interpreter fees to the Court. However, the law also required the Court to waive the interpreter fees for civil litigants for a party who needs an interpreter and appears in forma pauperis. Interpreters shall be assigned based on priority of cases and resources available. If funds are not available to provide an interpreter to every party that meets the standard of eligibility, preference shall be given to parties proceeding in forma pauperis, pursuant to Section 68631 of the Government Code in an civil action or proceeding outlined in paragraph (3), (4), Continues on page 23» Shannan Dugan is a former prosecutor with the San Francisco District Attorney s Office and has practiced criminal defense at the Law Offices of Shannan Dugan for 17 years. She has also represented clients in personal injury cases and is a longtime SFTLA board member. 8 The Trial Lawyer Winter 2015
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VERDICTS Noteworthy Verdicts for Deserving Plaintiffs by Christofer C. Nolan CASE: DENIS LE MOULLAC AND JESSIE JEWITT V. DAYLIGHT FOODS, INC., ET AL. (CASE NO. CGC-13-533962) VENUE: San Francisco County Superior Court Practice Areas: Federal Employers Liability Act; Personal Injury Judge: Honorable Newton J. Lam Plaintiff Counsel: Micha Star Liberty (co-lead) Shannon McClure Liberty Law William L. Veen (co-lead) Jeremy Cloyd (second chair) Anthony Label The Veen Firm Defense Counsel: Kevin S. Taylor Brent D. Anderson Ronald C. Lenert Taylor Anderson, LLP Facts and Allegation: On August 14, 2013, Gilberto Orihuela Alcantar, a delivery truck driver for Daylight Foods, Inc., struck and killed 24-year-old bicyclist, Amelie Le Moullac while turning from Folsom Street onto Sixth Street in San Francisco. At the time of the collision, Amelie was proceeding straight in a designated bike lane and was wearing a helmet. Alcantar had observed and passed Amelie earlier on Folsom Street, but claimed he did not see her when he checked his mirrors to turn onto Sixth Street. The collision received substantial publicity because the San Francisco Police Department initially found Amelie at fault for the collision for overtaking Alcantar s vehicle on the right. However, Alcantar was ultimately cited by the police department, after the San Francisco Bicycle Collision located surveillance video showing Alcantar hitting Amelie with the front of his truck. At the time of her deposition over a year later, the investigating police officer still maintained that the collision was Amelie s fault. Plaintiffs argued that Alcantar should have ensured that it was safe to turn before doing so and that he also should have merged into the bike lane before turning instead of turning across it. Defendant argued that Amelie was solely responsible for her death because she was unsafely attempting to pass Alcantar on the right while he was turning. Defendant also argued that Amelie was distracted by her use of earbuds and ipod which were found at the scene. Defense counsel argued that the burden was on decedent to protect herself at intersections and asked the jury to return a defense verdict. Injuries and Damages: Amelie s parents, Denis Le Moullac and Jessie Jewitt, filed the lawsuit seeking damages for the loss of their daughter s love, companionship, comfort, care, assistance, protection, affection, society, moral support, emotional support, counsel, encouragement, inspiration, and guidance. Amelie was unmarried and had no children at the time of her death. Plaintiffs did not seek economic damages. Amelie s parents separated when she was seven years old and lived on separate continents. Amelie had been raised by her mother in California since that age whereas her father resided in France. Plaintiffs presented evidence of Amelie s trips to France to see her father and their constant communications since childhood to show the substantial loss to the father. Amelie did not live with either parent at the time of her death. Plaintiffs presented evidence that Amelie was unique, or an outlier, in terms of the degree of emotional support she provided to both of her parents. Witnesses described her during testimony as the glue that held the family together and as the daughter that would have cared for her parents as they aged. Result: The jury determined that Mr. Alcantar was 100% negligent and that his negligence was a substantial factor in Christofer C. Nolan is an attorney who focuses on personal injury, professional negligence, and employment cases at Nolan Law Offices in San Francisco. 10 The Trial Lawyer Winter 2015
causing harm to Plaintiffs. The jury also found that Amelie was not negligent. Verdict: $4,000,000 Denis Le Moullac: Jessie Jewitt: Plaintiffs Demand: Defendant s Offer: $86,000 in past noneconomic losses $914,000 in future noneconomic losses $1,000,000 $155,000 in past noneconomic losses $2,845,000 in future noneconomic losses $3,000,000 $3,000,000 as to Denis Le Moullac [C.C.P. 998] $3,000,000 as to Jessie Jewitt [C.C.P. 998] $1,000,001 as to Denis Le Moullac [C.C.P. 998] $1,000,001 as to Jessie Jewitt [C.C.P. 998] Because Jessie Jewitt was a prevailing party, she was awarded additional costs of suit, which resulted in a total award higher than her 998 demand, and she thus prevailed on her 998 demand. Similarly, because Denis Le Moullac was a prevailing party, he was awarded additional costs of suit, which resulted in a total award higher than defendant s 998 offer. Plaintiff Experts: Mark Shattuck, Ph.D., Biomechanist and Accident Reconstructionist; Rene A. Casteneda, Accident Reconstructionist; Paul Herbert, C.P.S.A., Heavy Equipment Operation and Safety Procedures Defendant Experts: Clay Campbell, Accident Reconstructionist; Roman F. Beck, Bicyclist Standard of Care CASE: ANGELA COLE V. SAMUEL HENRY VENUE: Sonoma County Superior Court Practice Areas: Personal Injury Judge: Honorable Nancy Case Shaffer Plaintiff Counsel: Cynthia McGuinn, Esq., Rouda, Feder, Tietjen & McGuinn and John McGuinn, Esq., McGuinn, Hillsman & Palefsky Defense Counsel: Steven Toschi, Esq. and Wayne Collins, Esq.; Toschi, Sidran, Collins & Doyle Facts: In June 2011, Angela Cole, age 28, a married mother of an infant and a toddler, and her father, Samuel Henry, age 59, and a State Farm insured, were driving across country from North Carolina to California in a Penske rental truck, hauling a trailer with a car on it. Henry was transporting furniture and personal goods to his home in California. He had invited his daughter Angela to come along with him to share his company and driving responsibilities. The pair took turns operating the truck, with one sleeping or resting while the other drove. If both were tired, they pulled off at a rest stop and slept in the truck. In the early morning hours of June 3, near Flagstaff, Arizona, Cole had finished her driving shift and pulled off at a rest stop to switch driving duties with her Dad. At that time, Cole asked Henry if he was okay to drive, to which Henry responded Yes, don t worry about me, just go to sleep so you ll be ready when it s your turn to drive. Cole did as directed and was later awakened when she felt the truck ride over the rumble strips marking the edge of the lane. Cole told Henry that if he was tired he should pull over. He continued to drive. This happened a couple of times with Cole again requesting that Henry should pull over if he was tired. Henry did not pull over and kept driving. Eventually Cole fell back asleep. At some point later, no one knows when, and as Cole was sleeping, Henry fell asleep at the wheel. The truck veered left at 70 mph, crossed two oncoming traffic lanes, traveled out of control for nearly 1200 feet and plowed into the Mojave Desert, where it crashed. Henry was able to extricate himself and stumble from the wreckage. Cole, who knew she had suffered a severe back injury, remained belted in the cab until an ambulance arrived some forty minutes later. Cole was transported to a local hospital which was ill-equipped to handle an injury of this magnitude, so Cole was transported by helicopter to Sunrise Medical Center in Las Vegas, Nevada, where emergency surgery was performed to decompress and stabilize her spine. Cole sustained a comminuted vertebral burst fracture at the thoracolumbar junction, requiring surgical repair and a three level fusion with placement of screws, rods, and pins. She subsequently developed severe infections, requiring a second surgery and a 10 day hospitalization. Ultimately a third surgery was performed to remove the hardware in her spine as it was believed that might be the source of the ongoing infection. The trauma to Cole s spine, caused by the fractures, the infections, and repeated surgical procedures at the site, resulted in the development of a mixed pain syndrome requiring a fourth surgery: surgical implantation a spinal cord stimulator, a device which helps to diminish, but not fully control, ongoing pain. About two years after the crash, plaintiff s forensic expert, orthopedist Paul Slosar, discovered that Cole s initial spinal fusion had never been achieved and her spine was collaps- Continues on page 21» The Trial Lawyer Spring 2015 11
IS MEDIATION THE BEST COURSE FOR RESOLVING DISPUTES? By Guy O. Kornblum 12 The Trial Lawyer Winter 2015
What is the best way today to approach and achieve a settlement direct negotiation or the more formal process of mediation? For many years in the past since court supervised and private mediation became popular, it seemed to me that mediation had a distinct advantage because it a) brought all parties together face to face, b) involved a neutral who could be a facilitator and an evaluator, if needed, c) was a fixed process for negotiations rather than a haphazard effort to try to settle a case directly, and d) would involve principals or persons who were present who had a direct interest in resolution (e.g. the parties, their appointed representatives or their insurers). What I am hearing now, however, is that mediation is not always the preference. In part it is because of the cost and in some cases, because one side or the other does not take the process seriously and is not prepared. Except with ADR programs sponsored by a court system, which are at no cost to the parties, mediations are pricey in many cases. Big cases with multiple parties with a lot at stake might be desirable because the costs can be shared and the mediator is needed to isolate on the moving parts and achieve a global deal of resolution. But in the average mid level lawsuit, whatever the subject matter, is mediation justified? Recently I negotiated a professional negligence case against an insurance agent who sold a bogus tax free employee welfare benefit plan to a client. My colleague on the other side told me he does not mediate cases. He believes he can get a deal done directly, and his clients (and their insurers) have found that many mediations are a bust. Essentially he believes he has a better chance of getting a case settled without the cost and risk of a failed mediation. The problem I saw was it has taken a month to settle the case and many hours of back and forth both with my colleague and my client, so that the cost of this approach is probably close to what a day long mediation might have cost. So is this colleague of mine correct in his approach? Is he doing a disservice to his clients by discouraging a course of mediation for his client? A well known mediator in San Francisco, and a retired judge who has been doing private mediations for at least 10 years, recently told me that times have changed. Her experience is that the number of private mediations is down and the enthusiasm for such has waned since the early days when mediations were so popular and were the primary means for disposing of cases. The reasons? I have some ideas. First of all, in the ordinary case, the cost of mediation may be price prohibitive. That is, settling a good five or low six figure case may not warrant spending $6,000 to $10,000 a day for a mediator. I can understand, as I have noted, that this price may be worth it in a multi- party and high exposure case, or a difficult case of claims and cross-claims if the parties seek a global resolution. In cases in which liability is clear and damages are in dispute, direct negotiations may be successful, so it should not be necessary to incur the cost of mediation if the lawyers understand how to directly negotiate. But the ordinary personal injury case may not justify the cost of mediation. My experience is that the lowest price for a competent mediator for a day is $4,000 to $5,000. If that cost is not warranted, the alternative is a court supervised settlement conference or direct negotiation. Second, it seems that every day I receive a note that someone new is doing mediations and is making a career change from a civil litigation practice. These are lawyers who have been advocates their entire career who now think they can become neutrals, which is a totally different role. Who knows how effective they will be? I hear complaints from time to time about some mediators who are just not effective A well known mediator in San Francisco, and a retired judge who has been doing private mediations for at least 10 years, recently told me that times have changed. in this career change, so the self-proclaimed mediator may not be suitable for the role. It certainly seems to me that the mediator industry is a bit overrun, and if there is a decline in the need for such, it may be clogged. Third, the good mediators who have established themselves seem to be getting the business. I am guilty of suggesting the same mediators when asked to supply a list of desired ones. Why do I go back? Because I have confidence in those whom I have used, have a relationship of trust established, and know how they work. So I am comfortable. There are some I have used whom I will not use again because in my view they were not effective. So as time goes by we seem to drift towards a certain group of tried and true mediators, and disregard new ones. That does not mean I do not accept a mediator suggested by my adversary. I do, but it is often someone who is either on my list or someone I have experience with in some professional capacity or has a strong positive reputation for getting closure. And there is a fourth factor the recession. Although everyone seems to blame all our problems on our economic woes over the past several years, there may be something to that here. I find that insurance companies and corporate defendants are the reluctant debutantes 1. They have taken advantage of the economic times by delaying discussion about settlements and negotiations, and taking a hard line, even at mediations. Recently I reviewed a case involving serious injuries to a quadriplegic who was struck by an auto while crossing a street in which the insurer of the drunk driver attended a mediation but never offered a dime, Why? The claims representative had to admit that he had not reviewed the medical records. He was obviously not prepared, and did not have any real basis for negotiating, let alone having some authority to settle. The Trial Lawyer Spring 2015 13
14 The Trial Lawyer Winter 2015 In some cases, insurance carriers are looking for fire sales because they believe all plaintiffs are simply desperate for cash. So they take that hardnosed position and expect substantial discounts on even the best cases. And it does not help that the courthouse is essentially closed because of the lack of courtrooms for trials because of budget cuts. The process is also affected since the popular mediators are not only expensive but their calendars are full. It is sometimes hard to get a date earlier than 60-90 days out. The final point here is that in managing a case, careful thought must be given to the best alternative to trying to resolve the case. A private mediation may not be right for the case for many reasons. So, from the plaintiff s perspective, your strategy may be to prepare a comprehensive demand letter and build a strong case for settlement. If your adversary responds then perhaps a dialogue can take place regarding the best means to try and resolve short of trial. I often just call the other side and ask: How do you want to try to resolve the case? Let s try to settle ourselves, or do we need mediation to have a meaningful dialogue or opportunity to settle? Maybe the clients involved need that mediation day to better understand the issues, get the views of a neutral and focus on resolution. That way the parties can either enter into direct negotiations or find a suitable circumstance for using a neutral. However, if a case is going to be mediated, I have to be certain that circumstances are right for the process what I hope is not a fantasy list for agreeing to participate in the mediation process. Here are my conditions: 1. There has to be a good faith interest in resolution. If there is not, I politely decline. If the court directs the parties to mediate, then there must be an honest assessment if the parties have a real interest in settlement. 2. The check writer and decision maker must be present. I insist that this be the case or I will not attend. I ask the mediator to confirm this. I fail to understand how a mediation can be effective and the parties can have good communication if this is not the case. The last thing I want to hear is that the key person, who was standing by the phone (!) left work at 5 p.m. Eastern Time, when I am in a mediation on the West Coast where it is only 2 p.m.. 3. Lay out your case in full in a mediation brief that is exchanged. How can a mediation be effective if one side conceals its position from the other side? There can be no dialogue if an exchange does not take place. Two page briefs from a party received a day or two before the mediation which say nothing or comprehensive briefs which are only given to the mediator do not work. Both sides need to lay out their case for the other side, and the mediator, to see. 4. The mediation statements need to be complete and submitted well in advance of the mediation. My rule is that I send the mediation briefs out to counsel and the mediator (email and/or hard copies) at least two weeks beforehand. Recently I was on a panel in a CLE program with Herman Papa, Esq. a highly regarded trial lawyer and now mediator who wants mediation statements exchanged at least a month in advance. Because I am usually representing a plaintiff, I need to be sure to get the mediation statement with my demand in time for the defendant(s) to evaluate my client s position. And it needs to be complete, a mini claims file with all supporting documentation. Last minute submissions of additional specials -- and thousands of dollars of additional medical bills -- does not allow a defendant time to review all the relevant information and seek authority so that settlement can be fully explored at the mediation. That will not happen if the statement is submitted five days before the mediation is to take place. Late and incomplete submissions understandably put a defendant in a bind in its efforts to settle, and only delays the process. Email the mediation statement to opposing counsel as it can easily be forwarded to the client or insurance carrier. 5. Prepare your client to make decisions. On the plaintiff s side, spend a few hours going over the details of the case, the cost of going forward, and the dollars and cents involved if it progresses further or is tried. What is the likely outcome and how much will it cost? How might this affect the bottom line at the end of the case? Use the statistics of what happens if the parties walk away; what are the chances of a better result 2? Look at the economics of going forward and consider the present or time value of money from the plaintiff s side. What is the value of having cash now versus the hope of more cash later? 6. Be an active participant in the process: Be professional, meet and greet the other side and make sure all attending have met you and your client and exchanged greetings. There is no reason to be angry, hostile, or defensive. Just be a good participant in the negotiation process and see if you can get the job done with closure for you and your client. That is my take on the process of dispute resolution. I hope it gives you some points to consider in managing and trying to resolve your cases. Guy O. Kornblum Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from Hastings College of the Law. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP. He is certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Trial Advocacy and is a Fellow the American College of Board of Certified Attorneys. Mr. Kornblum is a strong advocate for exploring a negotiated resolution of a client s cases before going to trial or arbitration.
End Notes 1. The Reluctant Debutante is a 1958 comedy film directed by Vincente Minnelli and produced by Pandro S. Berman from a screenplay by Julius J. Epstein and William Douglas-Home based on Douglas-Home s play of the same name. The music score is by Eddie Warner and the cinematography by Joseph Ruttenberg. The film stars Rex Harrison and Kay Kendall whom he had married in 1957 after they worked together on The Constant Husband (1955) with featured performances by John Saxon, Sandra Dee, and Angela Lansbury. In 2003 the movie was remade as What a Girl Wants, starring Colin Firth & Amanda Bynes. http://en.wikipedia.org/wiki/the_reluctant_debutante_(film) 2. See my article, Research Confirms Negotiated Results Superior to Going to Trial, San Francisco Attorney (San Francisco Bar Association, Spring 2009), which discusses the study by Dr. Randal Kaiser of Decision Set in Palo Alto, California, and which compares from both the plaintiff and defense side the statistical chances of doing better than what a settlement presents. YOU RUN A PROFESSIONAL PRACTICE, YOU DESERVE PROFESSIONAL PARTNERS! PROFESSIONAL INQUIRY ASSOCIATES EXPERIENCED AND PROFESSIONAL INVESTIGATIVE SERVICES, FOCUSED ON THE PLAINTIFF- SIDE CALL US TODAY 415-305- 9685 GET THE PARTNERS YOU NEED WITH THE EXPERIENCE TO MAKE A DIFFERENCE PERSONAL INJURY, WRONGFUL DEATH, PUBLIC ENTITY, ROADWAY DEFECT, DANGEROUS CONDITIONS, AND NOTARY SERVICES. CALL TODAY, AND STAY AHEAD OF THE OPPOSITION! WWW.PROFESSIONALINQUIRY.COM CA PI LIC. #23646 LIFE CHANGES QUICKLY. BE SURE THEY CAN ALWAYS DEPEND ON YOU. You may already have disability insurance through work, but the fact remains: it may not protect as much of your paycheck as you expect. If you unexpectedly became too sick or hurt to work, would you and your family be adequately protected? At MassMutual San Francisco, we re committed to helping you reduce this gap and to making sure that the people who matter most to you are protected, no matter what. To learn more, contact: Daniel Oh Financial & Insurance Services MassMutual San Francisco CA Insurance License #0H99570 101 Montgomery Street, Suite 600 San Francisco, CA 94104 Phone: 415-743-1023 doh@financialguide.com sanfrancisco.massmutual.com LIFE INSURANCE + RETIREMENT/401(K) PLAN SERVICES + DISABILITY INCOME INSURANCE + LONG TERM CARE INSURANCE + ANNUITIES MassMutual Financial Group refers to Massachusetts Mutual Life Insurance Co. (MassMutual), its affiliated companies and sales representatives. Local sales agencies are not subsidiaries of MassMutual or its affiliated companies. Insurance products are issued by MassMutual, Springfield, MA 01111, and its subsidiaries, C.M. Life Insurance Company and MML Bay State Life Insurance Company, Enfield, CT 06082. CRN201504-169742 The Trial Lawyer Spring 2015 15
SFTLA DIVERSITY COMMITTEE PROUDLY PRESENTS THE 2015 TRIAL ADVOCACY FELLOWS The SFTLA Diversity Committee has established a Fellowship Program to introduce a diverse group of law students to the plaintiffs bar. The Fellowship Program (the Program ) will allow select students to observe the work of trial attorneys as part of a summer-long mentoring program. Fellows will gain exposure to the work of trial attorneys by shadowing three mentor law firms, each for a three to four week period. Fellows will attend depositions, hearings, settlement proceedings, and possibly even trial with their mentors. They will also have the opportunity to work on short-duration projects, including a writing assignment. The 2015 Trial Advocacy Fellows Mona Razani UC Hastings Susa Lim UC Hastings Monder Khoury UC Hastings Raul Brandon Gonzalez Santa Clara University Sponsors Poker Party Sponsors Gold Sponsor: Daniel Oh with Mass Mutual Venue for poker party thanks to Judicate West Silver Sponsor: Matt Herrick with Morgan Stanley Diversity Launch Party Gold Sponsor: Matt Herrick with Morgan Stanley Diversity Co-Chairs: Shaana Rahman The Mentor Firms The Arns Law Firm The Brandi Law Firm Callaway & Wolf Cartwright Law Firm Duckworth Law Firm Lawless & Lawless Paoli & Geerhart Rouda, Feder, Tietjen & Mcguinn Stebner & Associates The Veen Firm Walkup, Melodia, Kelly & Schoenberger 16 The Trial Lawyer Winter 2015
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PRACTICE TIPS Credit Damage: An Overlooked Injury in Tort Litigation By William Matz and Georg Finder A serious car accident (and the medical bills), fraud, construction defect, wrongful termination, contested divorce, insurance rescission--there are many ways clients can experience credit loss by the actions of a third party. No matter how successful a plaintiff attorney is in replenishing a client s bank account through settlement or trial, the efforts will not resolve one of the most overlooked injuries in tort litigation: damage to credit and credit reputation. Credit damage occurs when negative information appears on a credit report or other credit file that causes an individual or business to lose access to credit that was available prior to the damage. Credit reputation damage involves increased outof-pocket costs, loss of credit capacity and loss of credit expectancy because of third-party actions that cause negative information to appear on a client s credit report; in some cases credit reputation damage may cause job reassignment or even termination. When injuries or wrongful acts force people to default on their credit obligations, they suffer financial harm. Including credit damage as a part of a tort damage demand can change the value of a case by thousands of dollars. The Initial Assessment Some basic steps during the intake conference with a client can reveal whether a credit damage claim is worth pursuing. Find out if the client has been contacted by bill collectors, or is facing bankruptcy, foreclosure or repossessions. If it appears that the credit damage is not self-inflicted but is the result of third-party misconduct, advise the client to save all monthly statements, collection demands, rate adjustment letters--any items that could prove damage. Confirm the Client s Credit Status There are typically three types of credit accounts: Authorized user These accounts are solely in another party s name, but your client is permitted to use the account. Credit damage to your client does not result in limitation with respect to these accounts but may result in loss of authorization to use the account from the account holder. Co-borrower For these accounts, your client has equal responsibility for payments with another borrower(s). Solo account holder These accounts are in your client s name only. A common mistake by attorneys is to ask the client to provide a copy of his or her own credit report from one of the big three credit reporting agencies (Experian, TransUnion, and Equifax). These kinds of credit reports are unusable not only because of their inaccuracies, but most importantly, because a consumer credit report is inadmissible in court due to lack of foundation or authentication. Using a consumer credit report obtained by the client will likely cause the judge to dismiss your credit damage claim. Commercial businesses, such as lenders, creditors, employers and insurance companies, use a different credit report to assess the creditworthiness of an individual. Known as a Tri-Merged subscriber report (one report from each of the three national bureaus), it is much more accurate than consumer reports. In addition, these reports provide information for the preceding 84 months, longer than records kept by most consumer reports. Your client will need to request the subscriber credit report. They are usu- Georg Finder is a California-based Credit Damage Evaluator (CDE) and an expert on credit reporting violations and credit damage measurement. He has more than 15 years experience evaluating credit reports and appearing as an expert witness for both plaintiff and defense. http://creditdamageexpert.com, creditdamageexpert@gmail.com William Matz has been a California attorney since 1981; his practice focuses on real estate, mortgage, and related tax issues. Licensed as a real estate broker since 1982, Matz started a mortgage business over 20 years ago to correct deficiencies in the loan origination process. Email: matz@sonic.net. 18 The Trial Lawyer Winter 2015