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.
Friday, May 14, 2010
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
Thursday, December 17, 2009
R.I.P. Hanif?- The Issue of Recoverable Damages in Tort Cases
Most any lawyer who has litigated personal injury cases (either through trial or at least through settlement) over the last 20 years has dealt with the so-called "Hanif" issues. [referring to Hanif v. Housing Authority (1988) 200 Cal. App. 3rd 635, 246 Cal. Rptr. 192] The “Hanif” rule essentially provides that when the injured plaintiff is treated for his/her injuries, but the cost of the medical care is covered by either private insurance or some other source, and the bills are reduced by the carrier to some much lesser amount, only the amount actually paid is the proper measure of damages. However, two recent cases out of the 4th District Court of Appeal, Olsen v. Reid (2008) 164 Cal.App.4th 200, 79 Cal.Rptr.3d 255 (Olsen ) and Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805 (decided November 23, 2009), may seriously call that rule into question.
The long held belief/position that was always advanced by the defense in personal injury cases is this: that pursuant to Hanif, supra, and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861, Plaintiffs may only recover what was actually paid by insurance, and the full value bills are both irrelevant and inadmissible. Thus, regardless of what a doctor or hospital charges or bills for their services, if the injured plaintiff is covered by applicable health insurance, and the doctor or hospital reduces those charges because of a contractual relationship with the carrier (or otherwise “writes off” any amount not paid by insurance), the only amount "recoverable" by an injured plaintiff is the amount that the health insurer actually pays. The facts of Hanif provide a good illustration of that process.
Hanif involved a personal injury action brought on behalf of a minor (a Medi-Cal beneficiary), who was struck by an automobile. The trial court awarded $31,618 in special damages to the minor, which the jury found to be the reasonable value of the past medical services he received, even though that award exceeded the amount Medi-Cal actually paid for those services. [Hanif, supra, 200 Cal.App.3d at pp. 639, 643-644, 246 Cal.Rptr. 192] The defendant appealed, arguing the trial court should have limited the minor’s recovery for past medical services to the amount Medi-Cal "actually paid" ($19,317). [Id.] The Court of Appeal held that “when evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, that sum certain is the most that the plaintiff may recover for that care…" [Hanif, supra, 200 Cal.App.3d at p. 641, 246 Cal.Rptr. 192] Thus, it concluded, “a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” [Id. at p. 643, 246 Cal.Rptr. 192] Applying this measure of damages, the plaintiff was not entitled to the full amount of the bills (over $31,000), but rather was only entitled to recovered what Medi-Care paid for those services ($19,317). [Id.] The apparent prevailing rationale was that tort law has a “bar against double recovery” [Hanif, supra, 200 Cal.App.3d 635, 643, 246 Cal.Rptr. 192, 197] and that an injured plaintiff should got get a “windfall” because insurance paid parts of his/her medical bills.
Similar results were reached in Nishihama, supra. There, the Court found that the hospital which provided the medical care had no right to “balance bill” the plaintiff for amounts above and beyond those amounts paid by the health insurer (Blue Cross) under California’s Hospital Lien Act (HLA) [Civil Code §§ 3045.1-3045.6]. Further, since the plaintiff faced no reimbursement liability to repay the hospital, it felt that allowing plaintiff to recover the “full meds” would amount to the type of “double recovery” that Hanif rejected.
Thus, under the "Hanif Rule", the cases held that when a plaintiff has medical insurance, damages are limited to the amount actually paid or incurred, not any greater amount a medical provider billed, even if that greater amount was actually reasonable. It followed that the Hanif and Nishihama lines of cases was used successfully for years to try to limit the evidence as to the amount of plaintiffs’ medical specials that would be admitted and presented to the jury.
That changed slightly with the more recent holdings of in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 46 Cal.Rptr.780, and Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 62 Cal.Rptr.3d 309 (both of which are 3rd District cases out of Sacramento).
In Greer, supra, the Court held that the actual medical expenses charged are allowed to be presented to the jury, subject to post trial reduction of the award or verdict based on the actual recoverable amounts. That position was also confirmed in Katiuzhinsky, supra, which also provided that the party seeking to reduce the award to correspond to the amounts of the medical bills actually paid, bears the burden of producing evidence regarding the reductions, and suggested that such should only be done by post-trial motion.
For most of the last 20 years, the plaintiffs’ bar has regularly argued that these types of reductions in plaintiffs’ verdicts violated the “collateral source rule” articulated in Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61 and, later, Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 9, 1 Cal.Rptr.3d 412, 71 P.3d 770 (Lund). In Helfand, the California Supreme Court explained the "collateral source rule" as follows: "[I]f an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." [Helfend, supra, 2 Cal.3d at page 6, 84 Cal.Rptr. 173, 465 P.2d 61] The argument followed that plaintiffs should be permitted to recover the full amount of the reasonable "cost" or "value" of the past medical expenses paid or incurred as a result of her injuries regardless of what his/her private health care insurer paid to the medical providers; and that Courts should exclude evidence of the benefits the insurer "paid" to Plaintiff’s health care providers. That position has now found some friendly voices from two separate divisions of the 4th District in Howell and Olsen, with the more striking of the two cases being Howell.
Turning first to Olsen v. Reid (2008) 164 Cal.App.4th 200, 79 Cal.Rptr.3d 255 (Olsen ), there an injured pedestrian submitted records reflecting that she was billed nearly $62,500 for her care. The defense argued in motions in limine that the proper evidence of amount of the plaintiff’s specials was the amount actually paid by the plaintiff’s health insurer, an amount just over $8,000. The trial court denied the motion in limine and allowed the plaintiff to present the full medical bills( consistent with Greer and Katiuzhinsky). However, following the jury’s verdict in favor of the plaintiff, the trial court reduced the judgment by $57,000, the difference between what was billed by the providers versus what was actually paid by insurance (consistent with Hanif and Nishihama). Both sides appealed.
Division 3 of the 4th District Court of Appeal overturned the reduction in the verdict amount, concluding that the record was “far from clear as to what was paid, what, if anything, was ‘written off’, and to what extent [Plaintiff] remained liable for any further charges.” [Olsen, 164, Cal. App. 4th 200, 203, 79 Cal.Rptr. 3d 255, 257]. More importantly, Justice Moore (Acting PJ) wrote a concurring opinion that provided:
Apparently taking Justice Moore’s lead, the Court in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805, went one step further. Of particular note is Howell’s express rejection of the Nishihama decision. (“We disagree with this holding in Nishihama and the reasoning upon which it is based.” [Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805, 818])
The Court in Howell, supra, also provided:
The Court in Howell continued:
The Court in Howell was equally disapproving of the holding in Greer, supra, as evidenced by the following passage:
Rather than rely on "Hanif and its progeny," the Court in Howell relied on the collateral source rule analysis, reversed the trial court’s ruling reducing the plaintiff’s recovery, and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed.
So, is the rule from Hanif and its progeny dead? Given the apparently conflicting rulings from the various Appellate Districts, it is probable that these issues will eventually need to be addressed by the California Supreme Court. However, until then, it would appear that those lawyers with cases within the 4th District, whether from the plaintiffs’ or defense perspective, will have to address the very real probability that a plaintiffs’ full medical bills will be recoverable, without regard for or consideration of the amounts that may have been by the plaintiffs’ health insurance carrier.
The long held belief/position that was always advanced by the defense in personal injury cases is this: that pursuant to Hanif, supra, and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861, Plaintiffs may only recover what was actually paid by insurance, and the full value bills are both irrelevant and inadmissible. Thus, regardless of what a doctor or hospital charges or bills for their services, if the injured plaintiff is covered by applicable health insurance, and the doctor or hospital reduces those charges because of a contractual relationship with the carrier (or otherwise “writes off” any amount not paid by insurance), the only amount "recoverable" by an injured plaintiff is the amount that the health insurer actually pays. The facts of Hanif provide a good illustration of that process.
Hanif involved a personal injury action brought on behalf of a minor (a Medi-Cal beneficiary), who was struck by an automobile. The trial court awarded $31,618 in special damages to the minor, which the jury found to be the reasonable value of the past medical services he received, even though that award exceeded the amount Medi-Cal actually paid for those services. [Hanif, supra, 200 Cal.App.3d at pp. 639, 643-644, 246 Cal.Rptr. 192] The defendant appealed, arguing the trial court should have limited the minor’s recovery for past medical services to the amount Medi-Cal "actually paid" ($19,317). [Id.] The Court of Appeal held that “when evidence shows a sum certain to have been paid or incurred for past medical care and services, whether by the plaintiff or by an independent source, that sum certain is the most that the plaintiff may recover for that care…" [Hanif, supra, 200 Cal.App.3d at p. 641, 246 Cal.Rptr. 192] Thus, it concluded, “a plaintiff is entitled to recover up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” [Id. at p. 643, 246 Cal.Rptr. 192] Applying this measure of damages, the plaintiff was not entitled to the full amount of the bills (over $31,000), but rather was only entitled to recovered what Medi-Care paid for those services ($19,317). [Id.] The apparent prevailing rationale was that tort law has a “bar against double recovery” [Hanif, supra, 200 Cal.App.3d 635, 643, 246 Cal.Rptr. 192, 197] and that an injured plaintiff should got get a “windfall” because insurance paid parts of his/her medical bills.
Similar results were reached in Nishihama, supra. There, the Court found that the hospital which provided the medical care had no right to “balance bill” the plaintiff for amounts above and beyond those amounts paid by the health insurer (Blue Cross) under California’s Hospital Lien Act (HLA) [Civil Code §§ 3045.1-3045.6]. Further, since the plaintiff faced no reimbursement liability to repay the hospital, it felt that allowing plaintiff to recover the “full meds” would amount to the type of “double recovery” that Hanif rejected.
Thus, under the "Hanif Rule", the cases held that when a plaintiff has medical insurance, damages are limited to the amount actually paid or incurred, not any greater amount a medical provider billed, even if that greater amount was actually reasonable. It followed that the Hanif and Nishihama lines of cases was used successfully for years to try to limit the evidence as to the amount of plaintiffs’ medical specials that would be admitted and presented to the jury.
That changed slightly with the more recent holdings of in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 46 Cal.Rptr.780, and Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 62 Cal.Rptr.3d 309 (both of which are 3rd District cases out of Sacramento).
In Greer, supra, the Court held that the actual medical expenses charged are allowed to be presented to the jury, subject to post trial reduction of the award or verdict based on the actual recoverable amounts. That position was also confirmed in Katiuzhinsky, supra, which also provided that the party seeking to reduce the award to correspond to the amounts of the medical bills actually paid, bears the burden of producing evidence regarding the reductions, and suggested that such should only be done by post-trial motion.
For most of the last 20 years, the plaintiffs’ bar has regularly argued that these types of reductions in plaintiffs’ verdicts violated the “collateral source rule” articulated in Helfend v. Southern California Rapid Transit Dist. (1970) 2 Cal.3d 1, 84 Cal.Rptr. 173, 465 P.2d 61 and, later, Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 9, 1 Cal.Rptr.3d 412, 71 P.3d 770 (Lund). In Helfand, the California Supreme Court explained the "collateral source rule" as follows: "[I]f an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." [Helfend, supra, 2 Cal.3d at page 6, 84 Cal.Rptr. 173, 465 P.2d 61] The argument followed that plaintiffs should be permitted to recover the full amount of the reasonable "cost" or "value" of the past medical expenses paid or incurred as a result of her injuries regardless of what his/her private health care insurer paid to the medical providers; and that Courts should exclude evidence of the benefits the insurer "paid" to Plaintiff’s health care providers. That position has now found some friendly voices from two separate divisions of the 4th District in Howell and Olsen, with the more striking of the two cases being Howell.
Turning first to Olsen v. Reid (2008) 164 Cal.App.4th 200, 79 Cal.Rptr.3d 255 (Olsen ), there an injured pedestrian submitted records reflecting that she was billed nearly $62,500 for her care. The defense argued in motions in limine that the proper evidence of amount of the plaintiff’s specials was the amount actually paid by the plaintiff’s health insurer, an amount just over $8,000. The trial court denied the motion in limine and allowed the plaintiff to present the full medical bills( consistent with Greer and Katiuzhinsky). However, following the jury’s verdict in favor of the plaintiff, the trial court reduced the judgment by $57,000, the difference between what was billed by the providers versus what was actually paid by insurance (consistent with Hanif and Nishihama). Both sides appealed.
Division 3 of the 4th District Court of Appeal overturned the reduction in the verdict amount, concluding that the record was “far from clear as to what was paid, what, if anything, was ‘written off’, and to what extent [Plaintiff] remained liable for any further charges.” [Olsen, 164, Cal. App. 4th 200, 203, 79 Cal.Rptr. 3d 255, 257]. More importantly, Justice Moore (Acting PJ) wrote a concurring opinion that provided:
I write separately to sound the bell of alarm. By virtue of the Hanif/Nishihama procedure (Citations) permitting the posttrial reduction of medical expenses, the collateral source rule has been buried without dignity of any services or parting words. Without statutory authority or the Supreme Court’s blessing, the Hanif/Nishihama line of cases divorced the collateral source rule from the complicated area of medical insurance. Absent such approval, Hanif/Nishihama simply goes too far.” [Id.]
Apparently taking Justice Moore’s lead, the Court in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805, went one step further. Of particular note is Howell’s express rejection of the Nishihama decision. (“We disagree with this holding in Nishihama and the reasoning upon which it is based.” [Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805, 818])
The Court in Howell, supra, also provided:
“… the issue of whether Nishihama was entitled to recover damages for past medical expenses based on her medical provider's (CPMC's) normal (i.e., usual and customary) rates or based on the negotiated rates CPMC agreed to accept from her private health care insurer (Blue Cross) as payment in full for the medical services CPMC rendered to her should have been resolved based on an analysis of Nishihama's rights under the collateral source rule… the fact that CPMC had no lien rights … was not pertinent to the issue of whether Nishihama was entitled under the collateral source rule to recover [full] economic damages based on CPMC's usual and customary rates. Resolution of that issue required an analysis under the collateral source rule of whether Nishihama, before she received medical care from CPMC, entered into a financial responsibility agreement with that medical provider, and thus whether she incurred pecuniary detriment or loss in the form of personal liability for the medical expenses she would later incur at CPMC's normal rates.[Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805, 818]
The Court in Howell continued:
We agree with the observations of Associate Justice Eileen C. Moore in her concurring opinion in Olsen v. Reid (2008) 164 Cal.App.4th 200, 204, 79 Cal.Rptr.3d 255 (Olsen ) that, ‘[w]ithout statutory authority or the Supreme Court’s blessing, the Hanif/Nishihama line of cases divorced the collateral source rule from the complicated area of medical insurance,’ and, ‘[a]bsent such approval, Hanif/Nishihama simply goes too far.’ ” [Id.]
The Court in Howell was equally disapproving of the holding in Greer, supra, as evidenced by the following passage:
We disagree with Greer to the extent it holds that a trial court in a personal injury action is authorized to hear and grant a defendant's posttrial motion to reduce under Hanif and Nishihama a privately insured plaintiff's recovery of economic damages for past medical expenses. As discussed, ante, we have concluded that the negotiated rate differential is a collateral source benefit within the meaning of the collateral source rule, and thus the trial court erred in granting [Defendant’s] motion for an order reducing the jury’s award for [Plaintiff’s] past medical expenses in the amount of that differential…” [Id.]
Rather than rely on "Hanif and its progeny," the Court in Howell relied on the collateral source rule analysis, reversed the trial court’s ruling reducing the plaintiff’s recovery, and reinstated the jury’s verdict to include the full amount of the medical charges that were originally billed.
So, is the rule from Hanif and its progeny dead? Given the apparently conflicting rulings from the various Appellate Districts, it is probable that these issues will eventually need to be addressed by the California Supreme Court. However, until then, it would appear that those lawyers with cases within the 4th District, whether from the plaintiffs’ or defense perspective, will have to address the very real probability that a plaintiffs’ full medical bills will be recoverable, without regard for or consideration of the amounts that may have been by the plaintiffs’ health insurance carrier.
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