Can tort attorneys representing injured parties co-exist with "tort reformers" seeking to reduce access to the courts? Well, in the area of attempts to reduce court backlogs, the answer to that question may be "yes", as evidenced by the recent passage of AB2284.
The Plaintiffs' personal injury bar in California is largely associated with the Consumer Attorneys of California ("CAOC"), who have a credo of "preserving and protecting the constitutional right to trial by jury for all consumers and championing the cause of those who deserve redress for injury to person or property and resisting efforts to curtail the rights of such injured persons." On the other end of the philosophical spectrum is the Civil Justice Association of California ("CJAC"), which is "dedicated solely to improving California’s civil liability system" by working the Legislature and the courts to reduce what it sees as "the excessive and unwarranted litigation that increases business and government expenses, discourages innovation, and drives up the costs of goods and services for all consumers." Yet these two groups appear to have worked together to see that AB 2284 was passed.
This bill (entitled the “Expedited Jury Trials Act”) provides a pilot program for quicker, streamlined jury trials in California that insurers, the plaintiff’s bar and defense attorneys all appear to be praising. Introduced by Noreen Evans, D-Santa Rosa, the bill allow litigants to agree to format of faster, simpler trials in civil cases, that resembles a hybrid between a “high-low” arbitration and a traditional jury trial.
Under the act, the parties can agree to an eight-person or smaller jury (both sides would be limited to three peremptory challenges), with a three-hour time limit for both sides to present their cases. Before trial, both sides would agree to confidential "floor” and “ceiling” for damages, such that plaintiffs would be guaranteed at least the minimum payment and defendants would be assured a payment cap, regardless of the jury's verdict, to limit potential exposure. The jury would have no alternates and the courtroom would have no court reporter, unless a party agrees to pay for one. The jury's decision would be final and binding, unless the litigants discover fraud or misconduct.
Proponents say the voluntary system would not only cut litigation costs for plaintiffs, defendants and insurance carriers, but also help to ease the burden on courts.
Christopher Dolan, President of CAOC, described the bill to Law.com as an "unusual constellation of parties coming together" over the legislation. Meanwhile, CJAC President John Sullivan said the expedited jury trials would offer a middle path between arbitration or mediation and a laborious trial. "This fills the gap between the two," he said. "It has the benefits of a trial and more vigorous presentation of information, but is far more efficient than it would have been in a full-blown trial."
If the bill is signed by Governor Schwarzenegger, the new rules could take effect next January. Under the terms of the bills, however, it is set to expire in January 2016, which should allow analysts to assess the relative success or failure of the process.
My read: this sounds like a great way, in smaller cases, for clients to all “have their day in Court”, at a much reduced cost.
[For a complete copy of the bill, click on this link: http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_2251-2300/ab_2284_bill_20100818_amended_sen_v96.pdf ]
Friday, August 27, 2010
Friday, August 20, 2010
Recoverable Damages (An Update)
We continue to track developments related to what damages are recoverable by an injured plaintiff when that party is covered by insurance. More specifically, we have been interested in the apparent conflict between the "Collateral Source Rule" [as articulated in Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61 and, later, in Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 9, 1 Cal.Rptr.3d 412, 71 P.3d 770 (Lund)] and the “Hanif” line of cases that reduced a plaintiff's recovery where the plaintiff's medical bills were "reduced" by insurance payments. [See e.g. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 246 Cal.Rptr. 192 (“Hanif”), and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”).
Possible resolution of that conflict is currently pending before the California Supreme Court in the matter of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805. If you have followed other posts on this blog, you will know that the Howell court relied on the "Collateral Source Rule" to trump Hanif, and reversed a trial court ruling that reduced the plaintiff’s recovery based on Hanif and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review.
[The status on Howell is that various amicus curia (“friends of the court”) have filed briefs outlining their opposition to the Appellate Court’s conclusions, and Ms. Howell’s lawyers have until September 15, 2010 to file their response to these amicus curia briefs. Thus, without oral argument even yet scheduled, it is unlikely that we will have a decision before sometime in 2011.]
However, while we all wait for the decision in Howell, there are now TWO new cases, from separate appellate districts, that appear to endorse the Fourth District’s approach. These cases are from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) 185 Cal.App.4th 1313, 111 Cal.Rptr.3d 257, decided June 24, 2010 ("Yanez")], and King v. Willmett (Cal. App. 3 Dist.-August 9, 2010) ___ Cal.Rptr.3d ___, 2010 WL 3096258. These two cases step into that void to shed some new light on the issue.
In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Ms. Yanez appealed.
The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury. In a fairly long, reasoned opinion, the Court in Yanez concluded that:
Thus, the First District appellate court invoked the Collateral Source Rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles, "[t]he rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."
This reasoning was adopted by the Third Appellate District in “King.” There, the plaintiff sustained a neck injury in an accident in August 2004. Mr. King (who is, ironically, a defense attorney working for Farmers as "house counsel") later underwent cervical discectomy surgery and introduced expert opinion testimony that the 2004 accident aggravated plaintiff's preexisting asymptomatic condition of degenerative cervical disk disease. He then introduced medical specials related to totaling $169,499.94. It was also undisputed that plaintiff's medical providers accepted $76,286.32 as full payment for their services.
The jury found defendant negligent, that her negligence was a substantial factor in causing harm to plaintiff and that plaintiff sustained damages in the amount of $169,499.94 for past medical expenses. The trial court then granted defendant's post-trial motion for reduction of medical billings and reduced the amount of past medical expense damages to $76,286.32, thereby reducing the plaintiff’s judgment by nearly $100,000 ($93,213.62).
The 3rd District reversed, in relevant part. It found that the Trial Court erred in reducing the jury's award of damages for past medical expenses since the California Supreme Court has declared that the public policy interests favor the Collateral Source Rule. It further found that “the collateral source rule precludes the reduction of the amount of medical expenses plaintiff incurred ($169,499.94) for the rendered services to the cash amount ($76,286.32) accepted by plaintiff's medical providers.”
The Court in King specifically endorsed the Collateral Source Rule stating:
As we have noted in previous posts, the 4th District came to a similar conclusion in Howell. At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."
Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. However, this appears to be the trade-off the Appellate Courts are willing to accept since, as Justice Margulies in Yanez, noted, however, the Collateral Source Rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."
In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, these new cases of Yanez and King, will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell.
Possible resolution of that conflict is currently pending before the California Supreme Court in the matter of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805. If you have followed other posts on this blog, you will know that the Howell court relied on the "Collateral Source Rule" to trump Hanif, and reversed a trial court ruling that reduced the plaintiff’s recovery based on Hanif and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review.
[The status on Howell is that various amicus curia (“friends of the court”) have filed briefs outlining their opposition to the Appellate Court’s conclusions, and Ms. Howell’s lawyers have until September 15, 2010 to file their response to these amicus curia briefs. Thus, without oral argument even yet scheduled, it is unlikely that we will have a decision before sometime in 2011.]
However, while we all wait for the decision in Howell, there are now TWO new cases, from separate appellate districts, that appear to endorse the Fourth District’s approach. These cases are from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) 185 Cal.App.4th 1313, 111 Cal.Rptr.3d 257, decided June 24, 2010 ("Yanez")], and King v. Willmett (Cal. App. 3 Dist.-August 9, 2010) ___ Cal.Rptr.3d ___, 2010 WL 3096258. These two cases step into that void to shed some new light on the issue.
In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Ms. Yanez appealed.
The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury. In a fairly long, reasoned opinion, the Court in Yanez concluded that:
In our view, the trial court erred in reducing Yanez’s damages to the amounts actually paid by her insurers. Although the court reasonably relied on case law extending Hanif to the private insurance context, we find Hanif used overly broad language and the extension of its holding to private insurance by Nishihama and other cases is inconsistent with the collateral source rule. Consistent with the view taken by the appellate courts in a great majority of the jurisdictions that have considered the issue, we conclude the amounts written off by Yanez’s health care providers constitute collateral benefits of her insurance. [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483]
Thus, the First District appellate court invoked the Collateral Source Rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles, "[t]he rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."
This reasoning was adopted by the Third Appellate District in “King.” There, the plaintiff sustained a neck injury in an accident in August 2004. Mr. King (who is, ironically, a defense attorney working for Farmers as "house counsel") later underwent cervical discectomy surgery and introduced expert opinion testimony that the 2004 accident aggravated plaintiff's preexisting asymptomatic condition of degenerative cervical disk disease. He then introduced medical specials related to totaling $169,499.94. It was also undisputed that plaintiff's medical providers accepted $76,286.32 as full payment for their services.
The jury found defendant negligent, that her negligence was a substantial factor in causing harm to plaintiff and that plaintiff sustained damages in the amount of $169,499.94 for past medical expenses. The trial court then granted defendant's post-trial motion for reduction of medical billings and reduced the amount of past medical expense damages to $76,286.32, thereby reducing the plaintiff’s judgment by nearly $100,000 ($93,213.62).
The 3rd District reversed, in relevant part. It found that the Trial Court erred in reducing the jury's award of damages for past medical expenses since the California Supreme Court has declared that the public policy interests favor the Collateral Source Rule. It further found that “the collateral source rule precludes the reduction of the amount of medical expenses plaintiff incurred ($169,499.94) for the rendered services to the cash amount ($76,286.32) accepted by plaintiff's medical providers.”
The Court in King specifically endorsed the Collateral Source Rule stating:
The collateral source rule was adopted based on recognition that “a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor should not garner the benefits of his victim's providence .” (Helfend, supra, 2 Cal.3d at pp. 9-10, fn. omitted.) Our Supreme Court has adopted the collateral source rule (Lund, supra, 31 Cal.4th at pp. 9-10; Hrnjak, supra, 4 Cal.3d at pp. 729-730; Helfend, supra, at p. 6), expressing the public policy judgment that a tortfeasor should not be allowed to mitigate damages based on the fortuitous circumstance that the plaintiff is covered by insurance. (Helfend, supra, at p. 10.) The Supreme Court has concluded the public policy interests in favor of the rule justify its continuation despite the possibility that it results in some cases in overcompensation of the plaintiff. (Id. at pp. 10-14.) The Supreme Court has expressly recognized that even in circumstances where subrogation or reimbursement is inapplicable, the collateral source rule performs a needed and appropriate function. ( Id. at pp. 11-13.) The collateral source rule reflects a policy choice in the calculation of tort damages that permits a victim to retain a benefit, rather than to confer a benefit on the tortfeasor. (Helfend, supra, at p. 10; Smock, supra, 138 Cal.App.4th at p. 888.) [King, supra. (Emphasis added)]
As we have noted in previous posts, the 4th District came to a similar conclusion in Howell. At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."
Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. However, this appears to be the trade-off the Appellate Courts are willing to accept since, as Justice Margulies in Yanez, noted, however, the Collateral Source Rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."
In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, these new cases of Yanez and King, will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell.
Friday, June 25, 2010
Update-Recoverable Medical Damages
We have been tracking the recent developments related to what damages are recoverable by an injured plaintiff when that party is covered by insurance. More specifically, we have been interested in the apparent conflict between the "collateral source rule" and the line of cases that reduced a plaintiff's recovery where the plainitff's medical bills were "reduced" by insurance payments. [See e.g. Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 246 Cal.Rptr. 192 (“Hanif”), and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (“Nishihama”). Possible resoultion of that conflict is currently pending before the California Supreme Court in the matter of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805.
If you have followed other posts on this blog, you will know that the Howell court relied on the "collateral source rule" to trump Hanif, and reversed a trial court ruling reducing the plaintiff’s recovery based on Hanif, and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review. However, a new case from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483, decided June 24, 2010 ("Yanez")], steps into that void to shed some new light on the issue.
In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Yanez appealed.
The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury.
In a fairly long, reasoned opinion, the Court in Yanez concluded that:
Thus, the First District appellate court invoked the collateral source rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles "The rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."
As we noted in our prior posts, the 4th District came to a similar conclusion in Howell v. Hamilton Meats & Provisions Inc., 179 Cal.App.4th 686.
At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."
Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. Margulies noted, however, that the collateral source rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."
In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, this new Yanez case will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell. I suspect, however, that the defense, like they did in Howell, will seek to "de-publish" this opinion while Howell is on review.
If you have followed other posts on this blog, you will know that the Howell court relied on the "collateral source rule" to trump Hanif, and reversed a trial court ruling reducing the plaintiff’s recovery based on Hanif, and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed. As noted in previous posts, the Howell case is not presently "citable", based on the fact that the Supreme Court has accepted it for review. However, a new case from the 1st District (Alameda County) [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483, decided June 24, 2010 ("Yanez")], steps into that void to shed some new light on the issue.
In Yanez, Plaintiff Ana Yanez sued defendants SOMA Environmental Engineering, Inc., Mansour Sepehr, and Brian Tims (collectively SOMA) for injuries she suffered in an automobile accident. A jury found that SOMA's negligence caused Yanez’s injuries, and returned a special verdict awarding her $150,000 in damages, including $44,519.01 in damages for past medical expenses. After judgment was entered, SOMA moved, pursuant to the Hanif line of cases, to reduce the award for medical expenses to $18,368.24, which was the amount actually accepted by Yanez’s medical providers as payment in full under their contracts with Aetna and Healthnet, her private health insurers. The trial court granted the motion and entered an amended judgment reducing Yanez’s damage award. Yanez appealed.
The First District reversed and remanded the case back to the trial court to enter a new judgment restoring the original amount of damages awarded by the jury.
In a fairly long, reasoned opinion, the Court in Yanez concluded that:
In our view, the trial court erred in reducing Yanez’s damages to the amounts actually paid by her insurers. Although the court reasonably relied on case law extending Hanif to the private insurance context, we find Hanif used overly broad language and the extension of its holding to private insurance by Nishihama and other cases is inconsistent with the collateral source rule. Consistent with the view taken by the appellate courts in a great majority of the jurisdictions that have considered the issue, we conclude the amounts written off by Yanez’s health care providers constitute collateral benefits of her insurance. [Yanez v. Soma Environmental Engineering, Inc. (2010) --- Cal.Rptr.3d ----, WL 2527483]
Thus, the First District appellate court invoked the collateral source rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies. Per Justice Sandra Marguiles "The rule ... reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."
As we noted in our prior posts, the 4th District came to a similar conclusion in Howell v. Hamilton Meats & Provisions Inc., 179 Cal.App.4th 686.
At the time of that decision, Justice Gilbert Nares wrote "Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," and that "...the party liable for Howell's injuries, should not garner the benefits of Howell's providence."
Defense lawyers have argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall. Margulies noted, however, that the collateral source rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."
In the end, for the time being, Howell cannot be cited (per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115). Yet, this new Yanez case will likely be used during Howell's pendency by the plaintiffs' bar, to achieve the same result as the 4th District opinion in Howell. I suspect, however, that the defense, like they did in Howell, will seek to "de-publish" this opinion while Howell is on review.
Thursday, June 17, 2010
Hanif/Howell Update
The latest news on the California Supreme Court's review of the Howell v. Hamilton Meats case is as follows. On June 7, 2010, counsel for Plaintiff and Appellant, Rebecca Howell, filed their Answer Brief on the Merits. On June 10, 2010, Respondent's counsel requested an extension of time to submit their Reply Brief, and that request was granted. This Reply Brief is now due July 27, 2010. Thus, it looks like we will have a wait a good deal longer for the Supreme Court to decide this issue regarding the conflict between the "collateral source rule" and the holdings of Hanif, Nishihama etc.
We will keep you posted.
We will keep you posted.
Friday, May 14, 2010
Effective Law and Motion
I recently reviewed an excellent article by Judge Jacqueline A. Connor of the LASC in the May issue of Advocate Magazine. In that article, entitled "The 12 best ways to sabotage your motions", her Honor provides several (well, 12 actually...) well thought out guidelines for effective law and motion work. The following is my humble summary of those "Do's" and "Don'ts" guidelines along with my thoughts as well.
(1) DON'T mis-cite cases- your credibility to the court is paramount, and if a case you cite doesn't say what you offer it for, you're fighting an uphill battle;
(2) DO explain your cases- Space permitting, explaining the cases and their applicability to your position shows the Judge that you have a greater understanding of the issues (again, your credibility is at stake).
(3) DON'T get personal- avoid personal attacks. In the "heat of battle" and in our sincere effort to be advocates for our clients, especially with an adversary that you find to be obstreperous, lawyers can get overcome by that adrenaline push. However, I personally find that you can diplomatically make your point ("the argument is misguided" or "the reference to 'X' case is misplaced"), rather than resort to attacks on the lawyer who made the "misapplied" argument. Further, if you honestly feel like your opponent is being churlish, or even childish, taking the higher road works better and may even "bait" the other guy into demonstrating in front of the judge just how unreasonable he is being.
(4) DO pinpoint your citations- if you're referring to a particular passage, tell the judge exactly where it is; don't make the judge look for it. (E.g. 123 CA 345 at 348, not simply 123 CA 345) Further, if you're "dead on" with your assessment of the meaning of a case, making it easier for the Judge to confirm that fact can only serve you well.
(5) AVOID overusing bold, underlines and highlighting. (Ironic huh, that I bolded the "don't") Judge Connor feels that this can be viewed as insulting to the Judge reading your papers. Personally, I have used (and still use) such devices (though I have resisted that urge more as I got older), to try to focus attention on the passage that is important. I think that it is important to put in more complete citations, with the portion that you want to highlight in some type of underline, since that shows that you want to give the Court the complete picture of what the case you're relying on is about (see items 2 & 4 above), while still specifically addressing the part that supports your point. But, if every other word is highlighted, I can certainly see the judges point.
(6) AVOID unfocused arguments- don't use the "kitchen sink" approach. If it doesn't really fit, leave it out. Also, after you've finished a draft, come back to your work later and see if it still makes sense. If not, get out your red pen. I would also suggest that the argument be well-organized; use headings, in your notice say that you will address points A, B, C etc., and then use those as guideposts throughout the body of your points and authorities. It's a "L&M" version of the essay writing technique we learned in school: Tell 'em what you're going to say (succinctly, one paragraph), tell 'em; and conclude with "see, I told you what I was going to prove."
(7) AVOID boiler plate motions in limine ("MIL")- When I did mostly defense work, motions in limine were "de rigueur". The decision of Kelly v. Nu-West (1996) 49 Cal. App. 4th 659, did little to convince my partners to curb the practice. But, most of what you can say in such a boiler plate MIL can probably be addressed at the Final Status Conference with a couple of sentences. Reserve your MILs for truly important issues for which you really need the Court to review legal precedent. (Again, your credibility with the Judge is of paramount importance, so if you don't waste his/her time at the outset of your case, he/she will likely be more inclined to listen to you later, when key issues are at stake.)
(8) DO be consistent with numbering in Complaints- If you have a face page that lists 5 causes of action, labeled 1-5, make sure your complaint has those same numbers of causes of action, in that order. It also helps to label them with the same titles. This sounds simplistic and basic, but if the Court needs to quickly find a specific cause of action and can't because you've mislabeled it, it wastes the Court's time, irritates the judge, and as a result doesn't serve your client well.
(9) AVOID boilerplate arguments. With the use of computers, I think we've all "borrowed" arguments from our past work, or from that of colleagues. But, if you're filing a motion in the Smith case, and it refers to "Mr. Jones", the Judge will likely believe that you didn't put that much effort into the project. If you don't approach your task with enough dignity to be technically correct (and this includes typos and spelling errors), the Judge may likely assume that the entire effort just simply isn't that important to you. If it's not that important to you, why should it be that important to the Judge?
(10) DO attach proposed amended complaints- Not only is this required by the Court Rules [CRC 3.1324(a)(1)], but if you can't be bothered to show what it is that you want the Court to approve, why should the Court do so? Judge Connor also notes that if you're going to file an amended complaint in response to a demurrer or motion to strike, do it before the due date for opposition. This (a) shows your professional courtesy, and (b) saves court time, since a Court will be reviewing the moving and opposition papers in preparation for the hearing and filing an amended complaint the day before the hearing only serves to tick off a Judge and/or his/her research attorney who needlessly spent time reviewing all of that.
(11) DO know the rules- If you have a "5 in 1" on your desk, put a tab on CRC 3.1300 et. seq. Make sure you know page limitations, time constraints/deadlines and other formatting requirements. Don't forget to include a Table of Contents and Table of Authorities where required. (I know I sound like a broken record here, but remember that credibility with the Judge is paramount and if you can't keep the formatting rules straight, how can you expect the judge to accept your substantive legal arguments as gospel?)
(12) Related cases- Judge Connor points out that attaching a copy of the "face sheet" from the related case(s) is not required when you file a Notice of Related Cases, but you get extra "brownie points" for doing so.
Bottom line: When doing law and motion, your credibility with the Judge hearing your matter is supremely important. You may have the best argument in the world to represent your client, but if it gets lost in a sea of spelling errors, typos, and improper citations, or is otherwise overshadowed by bile spewed at your opposing counsel, that argument may get lost and your client suffers as a result. My thanks to Judge Connor for her great reminder, provided from the judicial perspective.
(1) DON'T mis-cite cases- your credibility to the court is paramount, and if a case you cite doesn't say what you offer it for, you're fighting an uphill battle;
(2) DO explain your cases- Space permitting, explaining the cases and their applicability to your position shows the Judge that you have a greater understanding of the issues (again, your credibility is at stake).
(3) DON'T get personal- avoid personal attacks. In the "heat of battle" and in our sincere effort to be advocates for our clients, especially with an adversary that you find to be obstreperous, lawyers can get overcome by that adrenaline push. However, I personally find that you can diplomatically make your point ("the argument is misguided" or "the reference to 'X' case is misplaced"), rather than resort to attacks on the lawyer who made the "misapplied" argument. Further, if you honestly feel like your opponent is being churlish, or even childish, taking the higher road works better and may even "bait" the other guy into demonstrating in front of the judge just how unreasonable he is being.
(4) DO pinpoint your citations- if you're referring to a particular passage, tell the judge exactly where it is; don't make the judge look for it. (E.g. 123 CA 345 at 348, not simply 123 CA 345) Further, if you're "dead on" with your assessment of the meaning of a case, making it easier for the Judge to confirm that fact can only serve you well.
(5) AVOID overusing bold, underlines and highlighting. (Ironic huh, that I bolded the "don't") Judge Connor feels that this can be viewed as insulting to the Judge reading your papers. Personally, I have used (and still use) such devices (though I have resisted that urge more as I got older), to try to focus attention on the passage that is important. I think that it is important to put in more complete citations, with the portion that you want to highlight in some type of underline, since that shows that you want to give the Court the complete picture of what the case you're relying on is about (see items 2 & 4 above), while still specifically addressing the part that supports your point. But, if every other word is highlighted, I can certainly see the judges point.
(6) AVOID unfocused arguments- don't use the "kitchen sink" approach. If it doesn't really fit, leave it out. Also, after you've finished a draft, come back to your work later and see if it still makes sense. If not, get out your red pen. I would also suggest that the argument be well-organized; use headings, in your notice say that you will address points A, B, C etc., and then use those as guideposts throughout the body of your points and authorities. It's a "L&M" version of the essay writing technique we learned in school: Tell 'em what you're going to say (succinctly, one paragraph), tell 'em; and conclude with "see, I told you what I was going to prove."
(7) AVOID boiler plate motions in limine ("MIL")- When I did mostly defense work, motions in limine were "de rigueur". The decision of Kelly v. Nu-West (1996) 49 Cal. App. 4th 659, did little to convince my partners to curb the practice. But, most of what you can say in such a boiler plate MIL can probably be addressed at the Final Status Conference with a couple of sentences. Reserve your MILs for truly important issues for which you really need the Court to review legal precedent. (Again, your credibility with the Judge is of paramount importance, so if you don't waste his/her time at the outset of your case, he/she will likely be more inclined to listen to you later, when key issues are at stake.)
(8) DO be consistent with numbering in Complaints- If you have a face page that lists 5 causes of action, labeled 1-5, make sure your complaint has those same numbers of causes of action, in that order. It also helps to label them with the same titles. This sounds simplistic and basic, but if the Court needs to quickly find a specific cause of action and can't because you've mislabeled it, it wastes the Court's time, irritates the judge, and as a result doesn't serve your client well.
(9) AVOID boilerplate arguments. With the use of computers, I think we've all "borrowed" arguments from our past work, or from that of colleagues. But, if you're filing a motion in the Smith case, and it refers to "Mr. Jones", the Judge will likely believe that you didn't put that much effort into the project. If you don't approach your task with enough dignity to be technically correct (and this includes typos and spelling errors), the Judge may likely assume that the entire effort just simply isn't that important to you. If it's not that important to you, why should it be that important to the Judge?
(10) DO attach proposed amended complaints- Not only is this required by the Court Rules [CRC 3.1324(a)(1)], but if you can't be bothered to show what it is that you want the Court to approve, why should the Court do so? Judge Connor also notes that if you're going to file an amended complaint in response to a demurrer or motion to strike, do it before the due date for opposition. This (a) shows your professional courtesy, and (b) saves court time, since a Court will be reviewing the moving and opposition papers in preparation for the hearing and filing an amended complaint the day before the hearing only serves to tick off a Judge and/or his/her research attorney who needlessly spent time reviewing all of that.
(11) DO know the rules- If you have a "5 in 1" on your desk, put a tab on CRC 3.1300 et. seq. Make sure you know page limitations, time constraints/deadlines and other formatting requirements. Don't forget to include a Table of Contents and Table of Authorities where required. (I know I sound like a broken record here, but remember that credibility with the Judge is paramount and if you can't keep the formatting rules straight, how can you expect the judge to accept your substantive legal arguments as gospel?)
(12) Related cases- Judge Connor points out that attaching a copy of the "face sheet" from the related case(s) is not required when you file a Notice of Related Cases, but you get extra "brownie points" for doing so.
Bottom line: When doing law and motion, your credibility with the Judge hearing your matter is supremely important. You may have the best argument in the world to represent your client, but if it gets lost in a sea of spelling errors, typos, and improper citations, or is otherwise overshadowed by bile spewed at your opposing counsel, that argument may get lost and your client suffers as a result. My thanks to Judge Connor for her great reminder, provided from the judicial perspective.
Monday, May 3, 2010
Howell Matter-The Saga Continues
On April 28, 2010, Plaintiff and Appellant, Rebecca Howell, associated new counsel in this case, who promptly filed a request for an extension to brief the matter on her behalf. On April 30, 2010, the Supreme Court granted Plaintiff and Appellant, Rebecca Howell, an extension to file her brief. That brief is now due June 8, 2010. I will continue to monitor this important case as it progresses through the review process in the Supreme Court and update this blog on those developments as they arise.
Friday, March 12, 2010
Is Hanif Dead? (Part 3)
On March 11, 2010, the California Supreme Court granted review in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686. This decision was the focus of my prior blog entitled Is Hanif Dead? As we discussed in that article, that decision rejected Hanif and its "progeny" and confirmed the collateral source rule espoused in Helfend v. Southern California Rapid Transit District (1970) 2 Cal.3d. 1.
The Howell decision relied on the "collateral source rule" to affirm that the injured party in a personal injury case should recover the amount charged by the medical providers, not what the injured party's insurance company actually paid for those services (as had been held in Hanif and Nishihama). In response to this decision, the defense bar (joined as "friends of the court") had requested that the Supreme Court "de-publish" this decision. That request was denied.
So, what does the Supreme Court's decision to review this case mean?
Insurance companies, defense lawyers and so-called "tort-reformers" may view this decision to review Howell as a victory. But, as I posited in my article, it appears that the Supreme Court has simply recognized the split of authority amongst the various California Courts of Appeal and has opted to clear the air. Further, as colleagues in the CAOC have observed, if the Supreme Court had agreed that Howell was just plain wrong, it could simply have granted the requests to depublish the case. It did not.
In the short term, the Supreme Court's decision to review the Howell case means that it is no longer "citable" in briefs per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115. In the long term, this means that for those of us who deal with these medical damages in personal injury cases, we will need to wait on the "final word" from the California Supreme Court who, after all, gave us the Helfend decision in the first place.
The defense bar has long advocated for a repeal of the "collateral source rule", citing dicta in Helfend itself. Meanwhile, the plaintiff's bar has long adhered to the argument that Helfend was properly decided by the state's highest court, but simply ignored by the appellate justices in Hanif and Nishihama. Until Howell, the "Supremes" simply had no reason to directly address this issue.
The Howell decision relied on the "collateral source rule" to affirm that the injured party in a personal injury case should recover the amount charged by the medical providers, not what the injured party's insurance company actually paid for those services (as had been held in Hanif and Nishihama). In response to this decision, the defense bar (joined as "friends of the court") had requested that the Supreme Court "de-publish" this decision. That request was denied.
So, what does the Supreme Court's decision to review this case mean?
Insurance companies, defense lawyers and so-called "tort-reformers" may view this decision to review Howell as a victory. But, as I posited in my article, it appears that the Supreme Court has simply recognized the split of authority amongst the various California Courts of Appeal and has opted to clear the air. Further, as colleagues in the CAOC have observed, if the Supreme Court had agreed that Howell was just plain wrong, it could simply have granted the requests to depublish the case. It did not.
In the short term, the Supreme Court's decision to review the Howell case means that it is no longer "citable" in briefs per California Rules of Court, Rules 8.1105 and 8.1110, 8.1115. In the long term, this means that for those of us who deal with these medical damages in personal injury cases, we will need to wait on the "final word" from the California Supreme Court who, after all, gave us the Helfend decision in the first place.
The defense bar has long advocated for a repeal of the "collateral source rule", citing dicta in Helfend itself. Meanwhile, the plaintiff's bar has long adhered to the argument that Helfend was properly decided by the state's highest court, but simply ignored by the appellate justices in Hanif and Nishihama. Until Howell, the "Supremes" simply had no reason to directly address this issue.
Wednesday, March 3, 2010
Juror Perceptions of Trial Lawyers
I regularly receive articles from a jury consultant, Harry Plotkin, regarding how to deal with juror perceptions, expectations and tendencies. I always find these articles to be a good read. Mr. Plotkin's latest article is particularly good, so I thought I'd post it here for reference. My thanks to Mr. Plotkin for his insights.
JUROR PERCEPTIONS OF YOU
I have no doubt that each one of you takes great pains to present your case as perfectly as you can to a jury. You probably even make every effort to present YOURSELF perfectly to the jury. Keep in mind when you’re preparing for trial and thinking about all the strategies that go into presenting yourself, your client, and your case that the most challenging thing about a perfect presentation is that YOU are not the judge that matters. A case presented perfectly to you, a judge, or any lawyer is probably NOT a perfect case to a jury. So if you’re taking a case to a jury trial, remember that only their opinions matter. And while you’re at it, realize that your jurors’ opinions about you and your case aren’t always logical or fair.
This month, I’m going to discuss your jurors’ perceptions of you, the lawyer. Not their perceptions of your client or your case, but of you. Even though you didn’t have anything to do with the events surrounding the facts and parties at trial, you are the most important figure the jurors have to trust in order to trust your client and your case. If the jurors trust you, they’ll trust what you have to say. If the jurors don’t trust the messenger, they won’t trust the message. To make matters worse, jurors seem to distrust lawyers more these days. They each come into the courtroom with an idea of the stereotypical dishonest lawyer seared into their brains, and for many jurors, you are guilty of being that stereotypical lawyer until proven innocent. So this month, let’s discuss how jurors go about figuring out if you’re one of the cliché, dishonest lawyers they distrust.
Let’s start with a simple one. Jurors expect that a stereotypical lawyer will dress to impress, in a suit with a Rolex. Jurors trust you when you dress to look more approachable. "Approachable" means something different depending on your personality and where you practice, but it may mean wearing less expensive, less formal attire. Perhaps a lighter suit, or a blouse or sport coat instead of a two- or three-piece. Dressing to be more approachable is especially important on those days in which you’re making your first impression and interacting with the jury: jury selection, opening statements, and closing arguments.*
Jurors expect the stereotypical lawyer to force their own point-of-view down the jurors’ throats in trial, and too often lawyers do just that at the worst possible time—in voir dire, when you should be letting the jurors express themselves. Few things offend the jurors more than a lawyer who asks them questions but then cuts them off, tells them what to think, and doesn’t let them be entitled to their own opinions. Voir dire is NOT the time to tell your jurors how they should think, but many lawyers are unknowingly guilty of doing just that. Anytime you ask the jurors "wouldn’t you agree that..." you are forcing your point-of-view on them. Even when they claim to agree, many really don’t, so it’s a waste of your time. Your jurors have opinions, some very strong ones, and many do NOT agree with you, no matter what you lecture to them in voir dire. So never ask a juror a question like "wouldn’t you agree that..." or "can you all promise me you’ll follow the court’s instruction that..."
If a juror doesn’t agree, or doesn’t really think the jury instruction is fair, they won’t be persuaded, no matter what they say, and they’ll resent you for asking. Jurors trust you when you listen to them. Voir dire is your only opportunity to show them that you want to listen to them. And even though there are ways to subtly persuade jurors in voir dire, a large part of voir dire should involve shutting up and letting the jurors tell you how they feel. You can kill two birds with one stone during jury selection—by asking open-ended questions and asking lots of "how do you feel about that?" questions, you’ll not only identify hostile jurors to de-select and learn how your remaining jurors feel about the issues of your case, but just as importantly you’ll show your jurors that you care enough to listen. Jurors trust lawyers who listen, and voir dire is your best and only chance to show your jurors that you accept and understand every point-of-view. Invite disagreements, listen carefully and understandingly to jurors who are completely hostile to your case issues, and show even the craziest jurors that you understand what they’re saying and how they feel.
During trial, jurors expect the stereotypically dishonest, defensive lawyer to OBJECT a lot. They expect you to object every time the other side says something damaging to your case that worries you. In fact, most jurors believe that every time a lawyer objects, it’s BECAUSE they are nervous, guilty, or worried about what the other side is going to share with the jury. Jurors ALWAYS want to know the whole story, so they don’t like it when they feel that you’re trying to hide interesting information from them. When a lawyer objects early and often in trial, the jurors do NOT get the impression that the other side is crossing a line, even if the judge sustains the objections. Having talked with jurors after trials, with shadow jurors during trials, and having overheard actual jurors during trials, believe me—-the jurors usually believe that objections are lawyers’ ways of hiding the whole story and the truth from the jury. As painful as it may be to hold back an objection when the other side says something inappropriate, weigh the benefits of objecting with the risk of making your jurors’ suspicious.** Usually their imaginations conjure up much more damaging assumptions than what the other side would have said. In most situations, it may be better to hold your objection and remain calm. Jurors trust you when you appear calm and unfazed by everything the other side says. And if you have to object, as much as judges hate this, explain your objection out loud in terms the jury can understand. Instead of "objection, calls for speculation!" you might say "objection, the witness is guessing, not giving facts!"
Jurors expect the stereotypical, dishonest lawyer to avoid talking about the most glaring weaknesses in their case. Jurors don’t just expect dishonest lawyers to object when it comes up; they also expect you to actively ignore the topic in hopes that the jurors won’t notice. The jurors may be right. Too many lawyers don’t know what to do with the most worrisome issues in their case and become paralyzed in their ability to talk about it to the jury. But unless the other side does you a favor and doesn’t mention the issue, it’s going to come up, and the jurors WILL notice if you avoid it. Even worse, your jurors will get the impression that you’re HIDING the issue from them, even when you’re only ignoring or avoiding it because you can’t figure out what to say about it. Believe it or not, jurors trust you when you talk about your worst issues and make honest admissions that seem to be detrimental to your case. Jurors are always surprised when lawyers openly admit concerns in voir dire, and they find it refreshingly honest. You’d be amazed at how much credibility you build simply by asking the question. And as I’ve said in past jury tips, jurors get the impression that if you’re not worried about talking about a challenging issue, then it must not be that damaging an issue for you. Take great pains to identify the elephant in the room and talk about it, especially if the other side is going to bring it up.
Jurors expect the stereotypical lawyer to be biased and subjective toward their side of the case, which brings up a strange phenomenon. You and I know that subjectivity and advocacy is how the system is SUPPOSED to work, but jurors miss this point. Jurors believe that honest lawyers are objective and honest—-even to their own client’s detriment, perhaps—-and that subjective, biased lawyers are dishonest. In a recent case I was involved in, we asked jurors if they believed a lawyer representing his or her spouse would be more or less objective than any other lawyer. The judge was incredulous-—"why are you asking such a ridiculous question? Lawyers aren’t supposed to be objective!" But when the jurors returned their questionnaires, their responses told a different story—-some felt that lawyers representing spouses could be "objective,"
while others believe they couldn’t be trusted if they were "subjective." So your jurors’ trust depends largely on a concept that isn’t part of our system of justice—-impressions of your honesty and objectivity.
When you start your opening statement on the attack, aggressively advocating a position before your jurors have had a chance to make their minds up about what happened, your jurors get the impression that you’re the stereotypical, SUBJECTIVE lawyer. Your jurors don’t really think about the fact that you’ve studied the case for months or years and are ready to make critical judgments. To them, taking a position too early in your opening shows that you jump to conclusions too quickly, that you’ll argue for your client no matter what the evidence shows, and that you’re once again going to force your point-of-view on the jurors instead of letting them make up their own minds.
Jurors trust you when you tell them what happened in your opening statement before you start taking a position and pressuring them with arguments. When you tell the story of what happened objectively and stay off your soap box for the first half of your opening statement, the impression the jurors get is that YOU are being careful about making up your mind and that YOU needed to know the whole story before drawing reasonable conclusions.
Not to give you nightmares, but jurors have many more subtle, unfair reasons and cues to distrust you and shoehorn you into their definition of the cliché, dishonest lawyer—more than I could ever list out and many more that even I can’t imagine.
The point of telling you this isn’t to scare you into a state of paralysis or make you self-conscious, but rather to make you comfortably aware of the things, big and little, that lawyers sometimes do (inadvertently) to offend and alienate jurors. The irony of course is that none of the offending signals you might be sending the jury are fair or logical; they’re all normal, reasonable parts of representing your clients and dealing with the challenges of litigating a jury trial. But no matter how unfair, your jurors’ perceptions and criticisms of you shape how they trust you, your client, and your case, and once you’ve done something seemingly harmless to turn a juror off, you may have lost them (and your case) in the process. So as foolish as it may sound to worry about how you’re dressed, how you talk to the jurors, and the style with which you try your case, everything that matters to the jury should matter to you.
You may contact Mr. Plotkin at:
Harry Plotkin, Jury Consultant
892 Connors Court
Claremont, CA 91711
(626)975-4457
harry@yournextjury.comhttp://www.yournextjury.com/
Bloggers notes-
*I knew one lawyer that went so far as to stop driving his Mercedes while in trial, and instead drove his older SUV. He did this "just in case" the jurors saw him outside of the courthouse, to portray his image as just a "regular guy."
** Another respected trial lawyer I know, would often go to the other extreme. Instead of objecting and otherwise making a scene, he would often yawn, look at his watch, or lean back in his chair, etc. to give the impression that the testimony being given was really of no consequence.
JUROR PERCEPTIONS OF YOU
I have no doubt that each one of you takes great pains to present your case as perfectly as you can to a jury. You probably even make every effort to present YOURSELF perfectly to the jury. Keep in mind when you’re preparing for trial and thinking about all the strategies that go into presenting yourself, your client, and your case that the most challenging thing about a perfect presentation is that YOU are not the judge that matters. A case presented perfectly to you, a judge, or any lawyer is probably NOT a perfect case to a jury. So if you’re taking a case to a jury trial, remember that only their opinions matter. And while you’re at it, realize that your jurors’ opinions about you and your case aren’t always logical or fair.
This month, I’m going to discuss your jurors’ perceptions of you, the lawyer. Not their perceptions of your client or your case, but of you. Even though you didn’t have anything to do with the events surrounding the facts and parties at trial, you are the most important figure the jurors have to trust in order to trust your client and your case. If the jurors trust you, they’ll trust what you have to say. If the jurors don’t trust the messenger, they won’t trust the message. To make matters worse, jurors seem to distrust lawyers more these days. They each come into the courtroom with an idea of the stereotypical dishonest lawyer seared into their brains, and for many jurors, you are guilty of being that stereotypical lawyer until proven innocent. So this month, let’s discuss how jurors go about figuring out if you’re one of the cliché, dishonest lawyers they distrust.
Let’s start with a simple one. Jurors expect that a stereotypical lawyer will dress to impress, in a suit with a Rolex. Jurors trust you when you dress to look more approachable. "Approachable" means something different depending on your personality and where you practice, but it may mean wearing less expensive, less formal attire. Perhaps a lighter suit, or a blouse or sport coat instead of a two- or three-piece. Dressing to be more approachable is especially important on those days in which you’re making your first impression and interacting with the jury: jury selection, opening statements, and closing arguments.*
Jurors expect the stereotypical lawyer to force their own point-of-view down the jurors’ throats in trial, and too often lawyers do just that at the worst possible time—in voir dire, when you should be letting the jurors express themselves. Few things offend the jurors more than a lawyer who asks them questions but then cuts them off, tells them what to think, and doesn’t let them be entitled to their own opinions. Voir dire is NOT the time to tell your jurors how they should think, but many lawyers are unknowingly guilty of doing just that. Anytime you ask the jurors "wouldn’t you agree that..." you are forcing your point-of-view on them. Even when they claim to agree, many really don’t, so it’s a waste of your time. Your jurors have opinions, some very strong ones, and many do NOT agree with you, no matter what you lecture to them in voir dire. So never ask a juror a question like "wouldn’t you agree that..." or "can you all promise me you’ll follow the court’s instruction that..."
If a juror doesn’t agree, or doesn’t really think the jury instruction is fair, they won’t be persuaded, no matter what they say, and they’ll resent you for asking. Jurors trust you when you listen to them. Voir dire is your only opportunity to show them that you want to listen to them. And even though there are ways to subtly persuade jurors in voir dire, a large part of voir dire should involve shutting up and letting the jurors tell you how they feel. You can kill two birds with one stone during jury selection—by asking open-ended questions and asking lots of "how do you feel about that?" questions, you’ll not only identify hostile jurors to de-select and learn how your remaining jurors feel about the issues of your case, but just as importantly you’ll show your jurors that you care enough to listen. Jurors trust lawyers who listen, and voir dire is your best and only chance to show your jurors that you accept and understand every point-of-view. Invite disagreements, listen carefully and understandingly to jurors who are completely hostile to your case issues, and show even the craziest jurors that you understand what they’re saying and how they feel.
During trial, jurors expect the stereotypically dishonest, defensive lawyer to OBJECT a lot. They expect you to object every time the other side says something damaging to your case that worries you. In fact, most jurors believe that every time a lawyer objects, it’s BECAUSE they are nervous, guilty, or worried about what the other side is going to share with the jury. Jurors ALWAYS want to know the whole story, so they don’t like it when they feel that you’re trying to hide interesting information from them. When a lawyer objects early and often in trial, the jurors do NOT get the impression that the other side is crossing a line, even if the judge sustains the objections. Having talked with jurors after trials, with shadow jurors during trials, and having overheard actual jurors during trials, believe me—-the jurors usually believe that objections are lawyers’ ways of hiding the whole story and the truth from the jury. As painful as it may be to hold back an objection when the other side says something inappropriate, weigh the benefits of objecting with the risk of making your jurors’ suspicious.** Usually their imaginations conjure up much more damaging assumptions than what the other side would have said. In most situations, it may be better to hold your objection and remain calm. Jurors trust you when you appear calm and unfazed by everything the other side says. And if you have to object, as much as judges hate this, explain your objection out loud in terms the jury can understand. Instead of "objection, calls for speculation!" you might say "objection, the witness is guessing, not giving facts!"
Jurors expect the stereotypical, dishonest lawyer to avoid talking about the most glaring weaknesses in their case. Jurors don’t just expect dishonest lawyers to object when it comes up; they also expect you to actively ignore the topic in hopes that the jurors won’t notice. The jurors may be right. Too many lawyers don’t know what to do with the most worrisome issues in their case and become paralyzed in their ability to talk about it to the jury. But unless the other side does you a favor and doesn’t mention the issue, it’s going to come up, and the jurors WILL notice if you avoid it. Even worse, your jurors will get the impression that you’re HIDING the issue from them, even when you’re only ignoring or avoiding it because you can’t figure out what to say about it. Believe it or not, jurors trust you when you talk about your worst issues and make honest admissions that seem to be detrimental to your case. Jurors are always surprised when lawyers openly admit concerns in voir dire, and they find it refreshingly honest. You’d be amazed at how much credibility you build simply by asking the question. And as I’ve said in past jury tips, jurors get the impression that if you’re not worried about talking about a challenging issue, then it must not be that damaging an issue for you. Take great pains to identify the elephant in the room and talk about it, especially if the other side is going to bring it up.
Jurors expect the stereotypical lawyer to be biased and subjective toward their side of the case, which brings up a strange phenomenon. You and I know that subjectivity and advocacy is how the system is SUPPOSED to work, but jurors miss this point. Jurors believe that honest lawyers are objective and honest—-even to their own client’s detriment, perhaps—-and that subjective, biased lawyers are dishonest. In a recent case I was involved in, we asked jurors if they believed a lawyer representing his or her spouse would be more or less objective than any other lawyer. The judge was incredulous-—"why are you asking such a ridiculous question? Lawyers aren’t supposed to be objective!" But when the jurors returned their questionnaires, their responses told a different story—-some felt that lawyers representing spouses could be "objective,"
while others believe they couldn’t be trusted if they were "subjective." So your jurors’ trust depends largely on a concept that isn’t part of our system of justice—-impressions of your honesty and objectivity.
When you start your opening statement on the attack, aggressively advocating a position before your jurors have had a chance to make their minds up about what happened, your jurors get the impression that you’re the stereotypical, SUBJECTIVE lawyer. Your jurors don’t really think about the fact that you’ve studied the case for months or years and are ready to make critical judgments. To them, taking a position too early in your opening shows that you jump to conclusions too quickly, that you’ll argue for your client no matter what the evidence shows, and that you’re once again going to force your point-of-view on the jurors instead of letting them make up their own minds.
Jurors trust you when you tell them what happened in your opening statement before you start taking a position and pressuring them with arguments. When you tell the story of what happened objectively and stay off your soap box for the first half of your opening statement, the impression the jurors get is that YOU are being careful about making up your mind and that YOU needed to know the whole story before drawing reasonable conclusions.
Not to give you nightmares, but jurors have many more subtle, unfair reasons and cues to distrust you and shoehorn you into their definition of the cliché, dishonest lawyer—more than I could ever list out and many more that even I can’t imagine.
The point of telling you this isn’t to scare you into a state of paralysis or make you self-conscious, but rather to make you comfortably aware of the things, big and little, that lawyers sometimes do (inadvertently) to offend and alienate jurors. The irony of course is that none of the offending signals you might be sending the jury are fair or logical; they’re all normal, reasonable parts of representing your clients and dealing with the challenges of litigating a jury trial. But no matter how unfair, your jurors’ perceptions and criticisms of you shape how they trust you, your client, and your case, and once you’ve done something seemingly harmless to turn a juror off, you may have lost them (and your case) in the process. So as foolish as it may sound to worry about how you’re dressed, how you talk to the jurors, and the style with which you try your case, everything that matters to the jury should matter to you.
You may contact Mr. Plotkin at:
Harry Plotkin, Jury Consultant
892 Connors Court
Claremont, CA 91711
(626)975-4457
harry@yournextjury.comhttp://www.yournextjury.com/
Bloggers notes-
*I knew one lawyer that went so far as to stop driving his Mercedes while in trial, and instead drove his older SUV. He did this "just in case" the jurors saw him outside of the courthouse, to portray his image as just a "regular guy."
** Another respected trial lawyer I know, would often go to the other extreme. Instead of objecting and otherwise making a scene, he would often yawn, look at his watch, or lean back in his chair, etc. to give the impression that the testimony being given was really of no consequence.
Tuesday, February 23, 2010
What Are Contingent Fees and Why are They Good for Consumers?
A contingent fee is a fee for services provided where the fee is only payable if there is a favorable result. The law defines a contingent fee as "a fee charged for a lawyer's services only if the lawsuit is successful or is favorably settled out of court...contingent fees are usually calculated as a percentage of the client's net recovery." (Bloggers Note- by "net recovery", that means that a client will still usually be required to pay costs incurred on his or her behalf.)
For many injured consumers, the contingent fee is their key to the courthouse. It makes it easier for people who do not have the "up front" financial means to protect and pursue their civil rights—especially in personal injury and wrongful death cases. (This is especially true where the injured party is unable to work, or the grieving family faces financial hardships because of the loss of their loved one.) If the right attorney is selected, a contingent fee is an excellent way to hire one of the best lawyers in your state without having to pay his or her up front retainer or hourly fee. Truly a win-win for the consumer. Because of the high risk involved, few attorneys will take cases on a contingency basis unless they feel the case has good merit. And when you think about it, that makes perfectly good sense.
The Contingent Fee Structure- A client is not charged attorney fees if he or she loses the case. (See Bloggers Note above for an important limitation there though.) Thus, only if the client recovers damages from settlement, or a favorable verdict, will the attorney receive the previously agreed to fee from the recovery. The attorney's permitted fee varies depending on the country, state and even local jurisdictions. The percentage allowed is subject to the ethical rules of professional conduct and, in many circumstances, statutory limitations. Depending on the age of the client and type of case, this range is normally someplace between 25% to 40% in the State of California.
The Advantages of a Contingent Fee Structure- A contingency fee arrangement provides access to the courts for those who cannot afford to pay the attorneys fees and costs of civil litigation. Contingency fees also provide a powerful motivation to the attorney to work diligently on the client's case. In other types of litigation where clients pay the attorney by the hour for their time, it makes little economic difference to the attorney whether the client has a successful outcome to the litigation. Finally, because lawyers assume the financial risk of litigation, the number of speculative or unmeritorious cases may be reduced.
In the United States, contingency fees are the standard in personal injury cases and are less common in other types of litigation. Most jurisdictions in the United States prohibit working for a contingent fee in family law or criminal cases, as made clear in Rule 1.5(d) of the Model Rules of Professional Conduct of the American Bar Association.
It’s interesting to note that in addition to the United States, contingent fees are also allowed in many other countries such as Australia, Brazil, Canada, the Dominican Republic, France, Greece, Ireland,Japan, New Zealand, the United Kingdom and the United States.
[Much of the foregoing content is used with permission from our friends at Jackson & Wilson in Laguna Hills, http://www.jacksonwilson.com/ and http://www.jwlawblog.com/. ]
For many injured consumers, the contingent fee is their key to the courthouse. It makes it easier for people who do not have the "up front" financial means to protect and pursue their civil rights—especially in personal injury and wrongful death cases. (This is especially true where the injured party is unable to work, or the grieving family faces financial hardships because of the loss of their loved one.) If the right attorney is selected, a contingent fee is an excellent way to hire one of the best lawyers in your state without having to pay his or her up front retainer or hourly fee. Truly a win-win for the consumer. Because of the high risk involved, few attorneys will take cases on a contingency basis unless they feel the case has good merit. And when you think about it, that makes perfectly good sense.
The Contingent Fee Structure- A client is not charged attorney fees if he or she loses the case. (See Bloggers Note above for an important limitation there though.) Thus, only if the client recovers damages from settlement, or a favorable verdict, will the attorney receive the previously agreed to fee from the recovery. The attorney's permitted fee varies depending on the country, state and even local jurisdictions. The percentage allowed is subject to the ethical rules of professional conduct and, in many circumstances, statutory limitations. Depending on the age of the client and type of case, this range is normally someplace between 25% to 40% in the State of California.
The Advantages of a Contingent Fee Structure- A contingency fee arrangement provides access to the courts for those who cannot afford to pay the attorneys fees and costs of civil litigation. Contingency fees also provide a powerful motivation to the attorney to work diligently on the client's case. In other types of litigation where clients pay the attorney by the hour for their time, it makes little economic difference to the attorney whether the client has a successful outcome to the litigation. Finally, because lawyers assume the financial risk of litigation, the number of speculative or unmeritorious cases may be reduced.
In the United States, contingency fees are the standard in personal injury cases and are less common in other types of litigation. Most jurisdictions in the United States prohibit working for a contingent fee in family law or criminal cases, as made clear in Rule 1.5(d) of the Model Rules of Professional Conduct of the American Bar Association.
It’s interesting to note that in addition to the United States, contingent fees are also allowed in many other countries such as Australia, Brazil, Canada, the Dominican Republic, France, Greece, Ireland,Japan, New Zealand, the United Kingdom and the United States.
[Much of the foregoing content is used with permission from our friends at Jackson & Wilson in Laguna Hills, http://www.jacksonwilson.com/ and http://www.jwlawblog.com/. ]
Wednesday, February 3, 2010
Is Hanif Dead? (Part II)
Advocate Magazine, the publication of the Consumer Attorneys Association of Southern California, just published a version of this blog post in their February 2010 edition. I wish to thank the editors for their consideration of my article and for getting the word out to a wider audience. If you would like more information, please check out the post from the "archive" dated December 17, 2009.
-Marc
-Marc
Subscribe to:
Posts (Atom)