Friday, April 19, 2013

Does "Aggressive" equal "Effective"??

For attorneys, does aggressive equal effective?  I was just reading an article entitled "Is An 'Aggressive' Lawyer An 'Effective' Lawyer? (the link is here, and it's a good read- that posited that exact question.  This topic may wander a bit from the supposedly subject specific nature of a personal injury blog, but since it got me thinking about my personal injury practice in general, I thought I'd add my perspective.

My take on the question: if "aggressive" means shedding the bounds of civility, then I think the answer is no.  

Sure, there are times, especially in the face of a hyper "aggressive" opposing counsel where we need to respond, and the first impulse when mud is flung your way is to fling it back.  But I believe the better approach is  to be "diligent" and thorough (in other words, how I prefer to handle every case) than to "respond in kind."  This practice philosophy is one that I developed from 2 very different sources.  

As a 1st or 2nd year lawyer, I was given a piece of advice from one of my mentors, and one of the truly best trial lawyers I know, and that advise has stuck: "never motivate your opposition."  First impressions with an opposing attorney can set the stage for how you deal with counsel throughout the case.  Hitting the "jerk button" from the get-go can only serve to motivate your opposing counsel. (Don't you feel and extra "edge" to be an opponent who was a jerk?) On the other hand, laying a foundation for respect and cooperation early on can pay dividends sown the road.  Don't get me wrong; once my opponent and I "step through the ropes," it's on, but let's do so with some measure of respect.   

I also hark back to my college days, working part time in the food service industry, when we were instructed to deal with particularly belligerent customers (yes, those do exist in food service), by being "extra nice."  In that scenario, you get one of you results: 

(1) by being nice you diffuse the situation (you never know, maybe this person dealt with a similar irritation and was simply lashing out in kind), where all the upset person needed was a kind word.  Why continue the cycle?; or 

(2) if the "jerk" you're dealing with is just built that way, his/her end game is to make you miserable too.  If you give every outward indication that he/she did not get to you, you've frustrated their purpose.  And, can't you take some satisfaction in that?

Bottom line: when I get ready for and start trial, I want to (and do) kick some tail.  But along the road to getting there, I prefer to act like a gentleman. And I've got the steady blood pressure history to prove it.   

Thursday, April 18, 2013

“Joint” Offer Under CCP § 998 Offer Upheld

A recent case out of the 5th District Court of Appeal has held that a “joint” offer of compromise to multiple plaintiffs in a wrongful death action was valid.  In McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201, the Court determined that there was sufficient “unity of interest” between 2 heirs of a deceased that a single offer to them both was adequate.

The Court initially noted that “ ‘[i]n general, “a section 998 offer made to multiple parties is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.” ’ (Burch v. Children's Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 545 (Burch).)”  

The Court then noted, however, that there is “an exception to this general rule.”  Where there is more than one plaintiff, a defendant may still extend a single joint offer if the separate plaintiffs have a “ ‘unity of interest such that there is a single, indivisible injury.’ ”  (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 505.)

The 5th District then pointed out that under California law, either the heirs or the personal representative on behalf of the heirs may bring a single joint indivisible action for wrongful death.  (Smith v. Premier Alliance Ins. Co. (1995) 41 Cal.App.4th 691, 696 (Smith).)  Any recovery for wrongful death is in the form of a lump sum, i.e., a single verdict is rendered for all recoverable damages.  (Smith, supra, 41 Cal.App.4th at pp. 696-697; San Diego Gas, supra, 146 Cal.App.4th at p. 1551.

Ultimately, the appellate court affirmed an award of expert costs, stating:  “In a wrongful death action, a single joint cause of action is given to all heirs and the judgment must be for a single lump sum.  A unitary verdict can easily be compared to a joint offer to determine whether the offering party has achieved a more favorable judgment. Thus, there is little, if any, justification for invalidating a joint Offer To Compromise made in a wrongful death case.” [McDaniel v. Asuncion (Cal. App. Fifth Dist.; March 27, 2013) 214 Cal.App.4th 1201.]

(Full opinion here- McDaniel v. Asuncion )