The Importance of Jury Trials

There has been a lot of talk in recent years about "tort reform" and attempts by the US Chamber of Commerce (i.e. "big business") to minimize our rights to trial by jury. With this background, I came across this Slate article on the importance of jury trials in our country. The article focuses on the recent high profile cases (one criminal and one civil) of the Casey Anthony murder trial and Janet Leigh Jones' case against Halliburton. It's a good read. (See link below...)

As noted in the article, the framers of the Constitution "understood that trial by crazed mob, by the media, or by the crown, did not produce justice. The jury system was their best guarantee of something to mitigate those powerful forces." As a trial lawyer I have come to embrace jury trials and, at the same time, to live with the "inconsistencies" that they sometimes may generate. Thomas Jefferson said the jury trial was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Though we each may, through our own personal political, social or moral lenses, disagree with the outcome of certain cases, our system of justice in the US, including the right to trial by jury, is the best in the world, and these rights should be protected, or they will be abridged at our peril.


http://www.slate.com/id/2299039/pagenum/all/

The "Dirty Dozen" of Legal Writing

I saw an article from the June Issue of the ABA Journal called "Dirty Dozen: 12 Ways to Write a Really Bad Brief" (see the link below), describing 12 "Donts" of legal writing, and thought I'd share. Looking at this from a more "positive" standpoint, I think that if you take anything away from these 12 "Don'ts", it is the following "Dos":

(1) Be brief;
(2) Be reasonable; and
(3) Be real.

Something that we may all, from time to time, forget is the "Golden Rule" of being an effective lawyer: Avoid the temptation to "sound like a lawyer." If you're too long-winded, too much of an advocate, and use too much legalese, you lose your audience (and in the case of legal brief, you lose the judge you're trying to convince). I also find that these 3 simple rules work well in trial when talking with jurors.

http://www.abajournal.com/magazine/article/dirty_dozen/

Thoughts on Mediation- 3 "O"s of Success

At some point in your personal injury case, you may have to consider whether to mediate the matter. Mediation can be defined as a voluntary negotiation process by which an impartial neutral assists opposing parties in resolving their dispute. It is designed to be a non-adversarial approach to conflict resolution, where the Mediator facilitates communication between the parties and assists them in finding a mutually agreeable solution. But, what tools do you need to be successful in mediation? I refer to these tools as my three "O's" of clear Objectives, Open-mindedness, and Open discussion.

Objectives. A party cannot go into mediation without clear objectives in mind and expect to reach a settlement. Whether your goal is purely monetary, or something else, that goal should be clear in your mind before you spend the time, energy and money participating in mediation. Here, preparation is the key.

The lawyer and the client should have assembled all the information necessary (i.e. medical records, expert opinions on causation) to assess the value of the case. You will also need to assess the costs of proceeding with the case to trial. Experts are often needed to testify at trial (and they are not cheap) and litigation costs will also include jury fees, court reporter fees, costs of additional depositions, etc. Often, a settlement that is reached earlier rather than later can be better result financially for the parties than a jury's verdict. (For example, from the defense side, paying a little more now, may be "cheaper" in the long run, even if you do better at trial, simply because of greater litigation expenses; conversely, for a plaintiff, taking less now may result in more money in your pocket than a greater verdict, after you factor in the additional costs involved for taking the case to a judgment.)

Also, on the plaintiff's side of the equation, if there are liens that need to be paid out of a settlement (from medical providers or medical insurers), those have to be been fully identified. Further, your lawyer should have been in contact with the adjuster or claims rep. dealing with those liens, to determine if those liens can be reduced and, if so, to what amounts. In the end, we all want to know our "bottom line" and the only way to get there is to know costs need to be covered.

Thus, having the proper sense of your objectives involves proper preparation in terms of knowing "all the angles" to obtain your objectives. Having these fully formed and informed objectives is essential to a meaningful settlement discussion.

Open-mindedness. While having a clear goal in mind in important, you also need to remain open-minded. One of the common mistakes litigants make is coming into the mediation process with a stubborn attitude or a firm "floor" or "ceiling" settlement figure in mind. Mediation, by definition, is a process that requires at least some compromise from both parties. Although most cases that go to mediation do actually settle, it is also true that to be successful at mediation you have to be flexible. If you are the plaintiff, you have to be open-minded to the possibility that you may have to take less than you were initially willing to, or from the defense side, you may have to be open to the possibility of giving up more than you initially wanted. (My more pessimistic colleagues describe a successful mediation as one where both sides walk out grumbling just a little bit.)

Open Discussion. As noted above, proper preparation is key to a successful mediation, and that means having a clear understanding of not only the strengths of your case, but also your weaknesses. To successfully mediate your case, you have to be honest with yourself and with the mediator. Dealing directly with the perceived "weaknesses" in your case when discussing it with the mediator will give you greater credibility with that mediator when he tries to argue the strong points of your case to the other side. This also better equips you to understand the "down-side" to proceeding with the case to trial.

Now, as a lawyer that specializes in litigation (and particularly in my "younger days"), my initial reaction in dealing with opposing counsel was to "play it close to the vest" and not disclose much more than what was absolutely required. However, if you truly desire to reach a settlement, you have to be able to provide enough information to the other side and to the mediator to convince them that you are likely to succeed at trial.

Further, and perhaps more importantly, in the mediation context there are certain confidentiality rules that make such honest and open discussions more palatable. Under Evidence Code § 1119, "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation ... shall remain confidential." Further, in Cassel v. Superior Court (2011) 51 Cal.4th 113, 119 Cal.Rptr.3d 437, the California Supreme Court recently extended mediation confidentiality to preclude the subsequent use of any evidence of "mediation-related" communications and that protection included even include pre-mediation conversations between a lawyer and client. [Cassel, supra, 51 Cal.4th 113, 118, 119 Cal.Rptr.3d 437, 440] Thus, it is far less likely that parties to mediation will be "burned" by disclosures in mediation, since "evidence" discussed in the process cannot be used against them later, should they not actually resolve the matter.

In addition, the concept of being "open-minded" also includes the idea that you have to be able to see the other side's arguments, whether it be on liability, or damages, or a realistic assessment of "what a jury might do" with your case. Thus, being "open-minded" also means that you cannot "take it personally" if some aspect of your case is questioned by the mediator. In the end, the mediator is not your "adversary" and may only just be trying to suggest alternative outcomes to your case that you should be fully aware of when you decide on whether an offer or demand is reasonable.

Conclusion. Not every mediation will be successful, but the odds of reaching a mutually agreeable settlement increase if both sides keep in mind these three principles. If you walk into mediation with these concepts of the "3 O's" in mind, you are much more likely to find yourself walking out of mediation with a settlement agreement in hand.

Faster Jury Trials??

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 ]

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:

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.

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:

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.

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.