Spring 2006 - Alameda Contra Costa Trial Lawyers' Association

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2                                                                                                             Spring 2006
                                                            THEVerdict                                                 Winter 2005-2006



                                                 From the President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
                                                 Stephen H. Cornet

                                                 Judicial Profile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
                                                 Alameda County Superior Court Judge Ronald M. Sabraw
                                                 David Hicks

                                                 Member News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


                                                 Litigating Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
                                                 Alexis S. McKenna, Winer, McKenna & Davis, LLP

                                                 Be Direct! Winning At Trial Through
                                                 Effective Direct Examination of Your Client. . . . . . . . . . . . . . . . . . . . 16
                                                 Micha Star Liberty, Liberty Law Office

  Balamuth Designs
  Kathleen Balamuth

  Statement of Editorial Policy
  This magazine presents a forum for the
  various authors of matters published herein.
  Therefore, it does not necessarily represent
  the views of ACCTLA, which publishes this
  magazine as a public service without charge
  to members and judges. Materials submitted
  may be subject to review and editing.

The Verdict                                                                                                                                                   3
                                                                                                        FROM THE PRESIDENT

                                                                                                                by Stephen H. Cornet

I  suspect most of us chose to become
   plaintiff’s attorneys for a variety of
reasons. The intellectual challenges? Sure.
                                               sideswiped by another vehicle. Mr. Keck’s
                                               car was forced over the center line into
                                               the path of an oncoming southbound
                                                                                             lane is created by placing cones in the
                                                                                             middle of Doyle drive, reducing the
                                                                                             number of lanes available for vehicles.
The desire to earn a sufficient income to      vehicle. The resulting head-on collision      Without the buffer lanes, minor accidents
provide for our families and ourselves?        left Keck severely injured and another        can and have developed into major acci-
Undoubtedly. In varying degrees, how-          driver dead.                                  dents. When Michael’s car was sideswiped,
ever, I believe our decision to join the           Michael and his wife Jill are long-time   he did not have the benefit of a buffer
plaintiff’s bar was motivated by a sense       friends, and I was retained to bring suit     lane to regain control, and a head-on
of social justice — a belief in the power      on their behalf against the responsible       collision resulted. Michael endured three
of the law to effect change for the better.    driver. In addition, I investigated the       surgeries on his badly damaged foot and
In the face of the hysteria for tort reform,   potential liability of the Golden Gate        ankle, with one more surgery — this to
we are steeled by the litany of progress       Bridge District and Caltrans. It seemed       his knee — to be done. A former world-
wrought on the forge of successful litiga-     clear to me that this accident need not       class swimmer, Michael is now reduced
tion on behalf of injured or otherwise         have ended in tragedy. Doyle Drive, the       to walking with a cane. His injuries have
wronged plaintiffs.                            roadway approaching the Golden Gate           had a devastating impact on him and his
    A quandary that often presents itself,     Bridge, was and is configured with no         family.
I have found, is balancing the desire to       barrier between oncoming lanes of traffic        From the beginning, Jill and Michael
do good for the greater good with the          at various times of the day. The Golden       sought to create some good from this
unquestioned duty to do what’s best for        Gate Bridge District operates the roadway     tragedy. In addition to compensation for
the client at hand. When the client him-       under a contract with Caltrans, which         the injuries, the Kecks were determined
self also enters the fray with a goal of       owns Doyle Drive. In 1998, the District       to attempt to persuade the District and
enacting positive change, in addition to       conducted a study and determined that         Caltrans to utilize a buffer lane at all times
seeking compensation for injuries, a fine      buffer lanes would not be utilized on         on Doyle Drive. Their stated goal was to
line must be walked.                           Doyle Drive or the Bridge during com-         help make “bloody Doyle” safer for all
    On July 26, 2003, San Francisco solo       mute hours, in order to facilitate the flow   drivers.
attorney Michael Keck was driving north-       of traffic. At other non-commute times,          We decided to bring suit in the San
bound on the Doyle Drive approach to           the District does utilize a buffer lane       Francisco Superior Court on behalf of the
the Golden Gate Bridge when his car was        between the opposing lanes of traffic. The    Kecks against the driver who initiated

4                                                                                                                            Spring 2006
                                                                                               Alameda-Contra Costa Trial Lawyers’ Association
                                                                                                 1884 Knox Street • Castro Valley, CA 94546
the accident by sideswiping him, the            known as “design immunity,” the Golden
Golden Gate Bridge District and Caltrans.       Gate Bridge Highway and Transportation                            Officers
                                                                                                         Stephen H. Cornet, President
The other driver was uninsured, and a           District has (according to its numerous                  Julia Sherwin, President-Elect
settlement was reached with Michael’s           attorneys) successfully prevented any                     Elise Sanguinetti, Secretary
uninsured motorist carrier. The battle          Plaintiff from reaching trial with a claim                Michael Haddad, Treasurer
was to be with the government entities.         for injuries from a head-on collision on
                                                                                                           Executive Director
Based upon my research of earlier suits         the Golden Gate Bridge. We faced an
                                                                                                                Patricia Parson
related to Golden Gate Bridge accidents,        uphill battle, but the Kecks were deter-
I believed a court would reject a claim         mined to press on.                                         Board of Governors
based on physically changing the roadway,           The District brought a summary judg-        Steven J. Brewer          Thomas G. Lewellyn
so we filed a claim alleging the District       ment motion before Judge James Warren           Lyle C. Cavin             John F. Lewman
                                                                                                Petra DeJesus             Micha Star Liberty
and Caltrans were negligent in not includ-      on June 10, 2005. In its motion, the            A. Charles Dell’Ario      Alexis McKenna
ing a buffer lane in their lane configuration   District argued that it did not own or          Steven L. Derby           Thomas G. McLaughlin
plan. Prior unsuccessful suits had alleged      control the portion of highway where this       Simona Farrise            Richard Phelps
                                                                                                Vernon C. Goins           G. Judson Scott, Jr.
a defective roadway design. Attacking           accident occurred. It merely maintains
                                                                                                Robert B. Gray            Joseph Tomasik
the lane configuration seemed to be the         the flow of traffic under direction from        Gordon D. Greenwood       Christopher Viadro
best approach, which we, as well as             the State and Caltrans. In addition, the        Jo Ann Kingston                 .
                                                                                                                          Jim W Yu
Rebecca Paul, an outside attorney work-         District argued that it was entitled to
ing for another firm on the companion           judgment because of its design immunity,                     Past Presidents
                                                                                               Peter Alfert               Steven Kazan
case involving the young lady whose life        stemming from its 1998 approval of a           Bryce C. Anderson          Michael J. Markowitz
was ended in this tragic accident, then         plan for the lane configuration of the         Kelly Balamuth             David McClain
pursued.                                        Golden Gate Bridge (and Doyle Drive)           Richard J. Baskin          Patrick J. McMahon
                                                                                               Richard D. Bridgman        Anthony Petru
    After much discovery, we concluded          which did not feature any buffer lanes to              .
                                                                                               Brian P Evans              Paul L. Rein
that a large war chest would be needed          separate northbound from southbound            Daneen C. Flynn            Eric Schnumacher
to continue the fight. Caltrans and the         traffic. Because this plan was “reasonable,”   William Gagen, Jr.         Robert G. Schock
                                                                                               William D. Gibbs           Aaron Simon
District were individually approached           the District argued that it could not be
                                                                                               J. Gary Gwilliam           Richard J. Simons
about paying a significant settlement so        held liable even if it constituted a danger-   John Hallbauer             Scott H.Z. Sumner
that we would have funds to pursue the          ous condition.                                 Molly Harrington           John M. Starr
                                                                                               David Hicks                Leroy F. Vadney
remaining defendant through trial. Cal-             At this point, I brought in Oakland
                                                                                               Peter J. Hinton            R. Lewis Van Blois
trans responded favorably. We now had           solo attorney Randall E. Strauss as co-        Eric H. Ivary              William F. Whiting
our war chest. The Golden Gate Bridge           counsel to assist with the law and motion.
District, which actually made the decision      In opposition to the District’s summary
to not utilize buffer lanes, was our remain-    judgment motion, we cited a perfectly
                                                                                                            THE      Verdict
ing defendant. The companion case settled       named, but imperfectly spelled case               A publication of the Alameda-Contra Costa
at that time with both public entities.         entitled Cornette v. Dept. of Transportation              Trial Lawyers’ Association
We continued onwards.                           (2001) 26 Cal.4th 63, in which the Cali-                         - Since 1970 -
    Under California law, a public entity       fornia Supreme Court held that design                       Verdict Committee
cannot be held liable for injuries caused       immunity does not continue in perpetu-                   Micha Star Liberty, Editor
by a dangerous condition on property it         ity. If a plaintiff can demonstrate that a           Liberty Law Office • 415.896-1000
owns or controls if it can establish that       design has become dangerous because of
it intentionally and reasonably approved        a change in physical conditions, and that         Advertising, Design and Production
the design containing the dangerous             the public entity had notice of these                  Young Design & Production
condition. Relying on this doctrine,            changes yet chose to ignore them, then

The Verdict                                                                                                                                      5
design immunity is lost. This thus             to not utilize buffer lanes. According to           institute change through significant
becomes a question of fact for a jury.         our experts, buffer lanes would have                financial compensation, multiple times
    We presented the Court with expert         prevented all but minor injuries in this            greater than the earlier Caltrans settle-
testimony that conditions on the Golden        accident. The life of a young lady would            ment than what the District paid in the
Gate Bridge had changed dramatically           most likely have been spared if a buffer            companion case.
since the District chose a design that         lane were in place. Not only had we                     After much agonizing, a decision was
omitted buffer lanes in 1998. The intro-       prevailed on the motion for summary                 made to accept the offer. This is where
duction of the FasTrak automatic toll          judgment, but the subsequent motion                 the case got interesting. As a government
system has virtually eliminated the back       for reconsideration was also denied.                entity, the Golden Gate Bridge District
up of cars waiting to exit the Bridge. This,      In July, 2005, this matter went to trial         Board of Directors had to meet and for-
combined with an overall decline in the        before Judge Peter Busch. Two days of               mally approve the settlement offered by
number of vehicles using the Golden Gate       pre-trial motions were heard and decided.           its management through its counsel. The
Bridge has resulted in an increase in the      Based upon those rulings, Randy Strauss             meeting took place about two weeks after
speed of traffic since 1998. As a result,      and I began intense settlement discus-              we had agreed to the settlement. In a
the lane configuration design adopted by       sions with the District. This was when              move that took us by complete surprise,
the District in 1998 is now obsolete, and      the tightrope grew taut. The Kecks had              the Board rejected the settlement, even
the lack of buffer lanes constitutes a         been steadfast in their quest to force the          though its own management and counsel
dangerous condition.                           District to utilize a buffer lane. They             recommended it. The Board apparently
    Judge Warren agreed that a jury could      were now faced with the reality of an               contended that because it steadfastly
come to these same conclusions, and            impending trial. Key rulings by Judge               believed that Caltrans “controlled” the
denied the District’s bid for summary          Busch had to be considered. A significant           lane configuration, it was not about to
judgment (as well as a motion for over         offer was presented by the District to              pay more towards a settlement than
$160,000 in attorney’s fees). Counsel for      settle. Through back-channel sources,               Caltrans had. With the settlement dead,
the District told me throughout the life       we learned that the District was taking             a new trial date was set.
of the case that no plaintiff had ever         our lawsuit very seriously. Real efforts                Due to Judge Busch’s prior rulings,
survived summary judgment on these             were underway to rebuild Doyle Drive,               further expert discovery was conducted.
issues to force a trial. We were now enter-    incorporating new safety measures. The              In February 2006, a new trial judge
ing uncharted waters. The Kecks had            offer seemed to be sufficient to satisfy            assigned to the case ordered the parties
gone farther than any previous plaintiff       our twin goals — adequately compensate              to attend another settlement conference,
in challenging the District and its decision   the clients and have the defendant to               this before Judge John Munter. Under-

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                                                 Publication in The Verdict is excellent
                                                                                                          Have you renewed
                                                 exposure. Our readers are most interested in
                                                 issues surrounding plaintiffs’ personal injury,             your ACCTLA
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6                                                                                                                              Spring 2006
                                                    ADR SERVICES, INC.                                          SM
standably, the Kecks were seriously upset          DELIVERING CONSISTENT RESULTS THROUGH CREATIVE SOLUTIONS
and discouraged by the District’s failure
to conclude a settlement that they had            Also Available:
only reluctantly agreed to. The prospects        Hon. Carl Anderson
for a new settlement seemed slim, to say         Hon. Mario Barsotti
the least.                                       Hon. Allan Bollhoffer
    After much hard work, Judge Munter           Hon. Mark Eaton
                                                 Hon. Richard Flier
suggested a “mediator’s number” and              Hon. Stephen Foland, Comm.
gave the parties one week to consider his        Hon. Isabella Grant
suggested settlement figure. After much          Hon. Joseph Grodin
soul searching, the Kecks agreed to the          Hon. Ina Gyemant                 Hon.             Hon.
                                                 Hon. Dale Hahn              Laurence Kay Alex Saldamando
new, somewhat lower figure, which was            Hon. Margaret Kemp
still several times what Caltrans had            Hon. John Kraetzer
previously paid. Surprisingly, so did the        Hon. David Lee
District. The settlement was formally            Hon. Raul Ramirez
                                                 Hon. M.O. Sabraw
entered into on Valentines Day.                  Hon. Aram Serverian
    Upon reflection, the Kecks’ legal            Hon. James Trembath
odyssey demonstrates the reasons I               Hon. Raymond Williamson
became a plaintiff’s attorney. The case          Nelson Barry III, Esq.
                                                 Norman Brand, Esq.
certainly presented an intellectual chal-        Eric Ivary, Esq.
lenge. The legal issues were difficult and       Karl Keener, Esq.
unsettled. The total settlements achieved        Barbara Kong-Brown, Esq.
                                                 Michael McCabe, Esq.             Hon.             Hon.
for my clients certainly provided sig-
                                                 Brian McDonald, Esq.       Alfred Chiantelli Richard Hodge
nificant compensation for their injuries
                                                 Bruce Wagner, Esq.
and my efforts. And, in some small way,
we believe we helped move the ball for-         For More Information Or For Scheduling, Please Contact:

ward. The District is most certainly more               WE HAVE MOVED!
aware of the problem caused by the lack         Dorene Kanoh, Vice President
of buffer lanes. They were made to pay          50 Fremont Street, Suite 2110
a significant sum for their conduct that        San Francisco, California 94105
                                                (415) 772-0900
my clients and we feel was otherwise                                                                  www.adrservices.org
                                                (415) 772-0960 - Fax
against the public interest. While the
District, sadly, still does not utilize buf-
fer lanes at all times, we hope and believe
that our struggle has brought that day
                                                       Real Estate Law
closer. Not every case provides a chance                        Litigation • Transactions • Leases
to promote the public good, but many
do. And all are worth it.                                    Case Referrals and Associations Welcomed
                                                        — Law Offices of David L. Roth —
— Stephen H. Cornet is a solo practitioner              One Kaiser Plaza • Suite 601 • Oakland, CA 94612
in Oakland. He specializes in personal injury
litigation and can be reached at 510.465-6264
                                                                         (510) 835 - 8181
or shclglbgl@aol.com.                                     Member CAOC/ACCTLA/ATLA • AV Rated

The Verdict                                                                                                                 7
                    Judicial Profile
             Alameda County Superior Court

    The Honorable Ronald M. Sabraw
                              By David Hicks

       While his California roots run deep and there is much
       to be said for exploring California’s central coast as
       he wants to do, Ronald M. Sabraw will be vacationing
       in New Mexico this summer with Cheri, his high school
       sweetheart — okay, his wife of 35 years — but these
       youthful grandparents won’t exactly be watching
       turtles as they lazily raft down a meandering creek. . . .

8                                                                   Spring 2006
No, they will be going back to school as           the law, they’re really about people. And                 had the opportunity to serve as a judge.
they do each summer in pursuit of under-           he no doubt appreciates that he is deal-                  It is one of the principle satisfactions of
standing, self-betterment and concern for          ing with real people, real problems, and                  his life to date, and has been, he says,
social issues. How? They will be taking            real life. How much better than to                        “from day one.” His appreciation for the
another week-long course of study at St.           participate in the bickering between                      judge’s role as a decision-maker has grown
John’s College’s Summer Classics Program           Justice Scalia’s caricatured: “The Con-                   over time. He finds it a point of significant
in Santa Fe, N.M., discussing Rousseau’s           stitution is just a legal document on a                   personal interest to have realized that
Emile: or, on Education. Of course, there          piece of paper” and Justice Ginsberg’s:                   judging becomes more difficult with age.
will be extra-curricular activities ranging        “The Constitution is a living, breathing,                 This circumstance is born of the reality
from exercise, fine dining and                                                                                           that youth and inexperience
enjoying the so-famous art                                                                                               tend to mislead one into over-
available in the region. All this                                                                                        looking the complexities of life.
to return refreshed and better                                                                                           He notes that in his first years
prepared to face the next of life’s                                                                                      on the bench making decisions
challenges. No doubt Cheri’s                                                                                             was a lot like calling balls and
career working with academi-                                                                                             strikes. Over time, however,
cally motivated students as the                                                                                          one begins to grow into the
Director of The Mill Creek                                                                                               position and to fully appreciate
Academy has not been a bad                                                                                               the impact of one’s decisions on
influence on this judge.                                                                                                 the lives of people, especially
   “Turtles?” you might ask.                                                                                             those burdened by their respon-
Have you ever wondered why                                                                                               sibilities and living in a world
France’s most famous lawyer                                                                                              where nothing is — in all fair-
stands in the heroic pose in the                                                                                         ness — simple and reducible to
Palais de Justice in Paris, with                                                                                         black and white. If he had it to
one foot elevated upon the back                                                                                          do over, he says he might have
                                      Have you ever wondered why France’s most famous lawyer stands in the
of a turtle? It is because justice                                                                                     made a better judge if had taken
                                      heroic pose in the Palais de Justice in Paris, with one foot elevated upon the
should not be too hurried nor                                                                                          the bench a little later in life. . .
                                      back of a turtle? It is because justice should not be too hurried nor unsure.
unsure. Turtles are respected                                                                                          Of course, no one is complaining.
totems in Native American lore.                                                                                        I ask him if gray were a popular
A purposeful turtle, while moving directly         adapting document for a much changing                     color with thoughtful experienced judges
toward water, will, without deviating,             present and future.”                                      and he only smiled. “It’s not enough to
pause to take in the sun and reflect — but              Although he is fast approaching his                  say no just because we can” he grants.
won’t be thinking (as in this writer’s             20 year on the bench, he continues to
                                                                                                                 I asked him about the increased diver-
favorite saying) I may be old, but I’m slow.       find his work as a judge challenging and                  sity on the bench. He observes that the
Instead, the pausing is for focusing, gath-        rewarding each and every day. While he                    benefits to us all are beyond debate. We
ering bearings, and choosing purposeful            remains a youthful and energetic man, he                  are in equal measures enriched and inspired
direction.                                         is looking forward to new challenges and                  by diversity in all aspects of our culture.
   Judge Ron Sabraw understands                    new opportunities in the next year. No                    He answers that diversity requires of us
something wonderful about his job: that            doubt whatever new course he may elect,                   all to recognize that people are different,
the cases he handles, whether large or             it will be one calling for a thoughtful,                  have differing sensibilities, and wakes us
small, are really about our collective             examined performance.                                     to being more mindful of everything we
humanity, in all its permutations. While                Judge Sabraw has a profound appre-                   do, particularly in securing the goal of a
the cases certainly concern the facts and          ciation and sense of gratitude for having                 fair and just legal system for everyone.

The Verdict                                                                                                                                               9
Clearly, he sees diversity as a very positive          Inside the Courtroom, he has seen             Sabraw does not suffer kindly the wasting
development for our judicial system.                proven time and again that the best lawyers      of time or trial mismanagement. Motions
Judicial diversity is a process not yet             always have a theory or a theme at the           in limine, document admissibility, includ-
complete, a process still heading toward            heart of their case, and the good lawyers        ing authentication and foundation issues,
proportionate demographics.                         don’t keep it a secret. It’s best to keep this   must be resolved before the day for com-
    Current challenges faced by the bench           theme going from the first minute. He is         mencement of jury selection. Jury instruc-
include inadequate funding of the court             surprised by how many trials lack a theme,       tions and special verdict forms must also
system and a statewide problem of in-               or bury it in minutiae. “Let your theme          be completely resolved prior to the com-
adequate, outdated and deteriorating                resonate to the jury and the judge,” he          mencement of jury selection. The judge
courthouses.                                        suggests. He also wants to acknowledge           respects lawyers and says he can count
    Alameda County has 68 judges, and               profound appreciation for lawyers who            on one hand the number of unprofessional
still needs additional judges in areas like         collaborate together in developing good          presentations he has seen in twenty years,
family law and juvenile court. He feels             case management plans that are tailored          and salutes us for that. In the complex
there is a tendency in the society at large         to the facts and circumstances of their          trials he has conducted he describes the
to take the courts for granted. Despite the         case. When that happens, things don’t            quality of the lawyering as “excellent,
strong leadership of Chief Justice George,          necessarily have to go by the book. When         amazing.”
judges have never been particularly effec-          lawyers cooperate in developing effective            Judge Sabraw has welcomed the use
tive advocates, nor does the general public         case management plans, it results in effi-       of technology in his courtroom. He has
perceive judges very sympathetically. The           cient use of court resources and time. If        been creative in jury trial management,
judicial system has no identifiable con-            opposing counsel can team up it creates          including the use of trial binders for all
stituency and thus, when the legislature            confidence in the court to give them more        jurors that include copies of all preliminar-
and the governor are dividing the financial         leeway in trying their cases.                    ily approved jury instructions, special
pie, the courts are not often well served.             Judge Sabraw loves his staff. Russ Knox       verdict forms, the 10 most significant trial
Of course, the real losers in all of this are       has been his courtroom attendant for             exhibits for each party that have been
the people.                                         fourteen years. Terry Rossette, his reporter,    ruled upon and admitted prior to trial.
    I asked him about justice and level             Wosen Mengiste, his clerk, and Phil              Additionally, counsel are permitted mini
playing fields. He says that while we aspire        Obbard, his excellent research attorney,         opening statements at the beginning of
to a level playing field, it cannot always          make coming to work every day something          jury selection and are permitted mini
be assured. Most judges recognize that              special to which to look forward.                arguments (3-5 minutes) following each
economics, preparation, and circumstances              Jury trials are stressful and the judge       witness.
beyond everyone’s control tilt the playing          is ever mindful of the time and energy               His having received the trial judge of
field, though no one person is to blame.            jurors and lawyers put into cases, so Judge      the year award from ACCTLA stands high
                                                                                                     in his personal history because it came
                                                                                                     from a group that stands for ethics and
                                    ACCTLA SEMINAR
                                “Spinal Injuries from A to Z”
                                                                                                     fairness in the practice of law and admin-
                                                                                                     istration of justice. And he adds that
        Speaker: Santi Rao, M.D. (Orthopedic Spine Surgeon), California Spine Care                   administration must be the servant of
                      May 4, 2006 • Mt. Diablo Hospital • $60                                        justice.
       6:00-7:00 p.m.Wine Tasting • 7:00-8:30 p.m. Dinner, lecture & questions                           If you have to try a case in his courtroom
                                                                                                     you are going to feel welcome.
            Topics covered include: Anatomy of the spine • Mechanisms of injury
     Different types of injuries • Current approaches to treatment • Prognosis for recovery
                                        And much more . . .                                          — Business tort litigator David Hicks, a
                                                                                                     Past President of ACCTLA, assists law firms
              For further information, please contact Executive Director Pat Parson at
                                                                                                     with fee applications. He can be reached at
                          510.538-8286 or at triallawyersacc@aol.com”

10                                                                                                                                   Spring 2006
                                                Change to Local Rules
                                                 Superior Court of California
                                                     County of Alameda
     Please take notice that if you practice in Alameda County, there have been changes to the Local Rules
     of the Superior Court of California, County of Alameda. Local Rule 4.6, “Standing Pre-Trial Orders for
     Civil Cases,” has been changed significantly and should be reviewed before any trial venued there. The
     new rule can be found on line at http://www.alameda.courts.ca.gov/courts/rules/index.shtml. The next
     edition of The Verdict shall address these changes in more depth, but we wanted our readers to be aware
     of the changes immediately.

                                                         Litigation and Barristers Sections

                                                Advanced Trial Practice Series
                                   April 26, June 28, September 27, October 25 and November 17, 2006
                                                        5:15 - 7:00pm • JFK University
                                             (last program will be at CCCBA’s MCLE Spectacular)

                                 Hon. Steve Austin • Stan Casper Esq. • Patrick Galloway Esq.

                                            $25 members / $10 student members / $30 non-members
                                             ($5 off each additional seminar when purchased as a package)
                                                              Sandwiches will be provided

                         To register: Phone in your Visa/MC (925.370-2548) or send check, payable to CCCBA,
                                   to Christine Morrissey, CCCBA, 704 Main Street, Martinez 94553

                        For additional information, call Jay Chafetz, 925.933-5890 or Andi O’Toole, 925.284-8887
                                                                         1 hour MCLE Credit

          *The Contra Costa County Bar Association certifies that this activity has been approved for MCLE credit by the State Bar of California (Provider #393).

The Verdict                                                                                                                                                         11
                  Litigating Punitive Damages
                                                         By Alexis S. McKenna

      Most trial lawyers start to salivate at the idea of getting punitive damages. In obtaining punitive damages, we not
      only obtain higher awards for our clients, but we have the satisfaction of knowing we have overcome a substantial
      challenge, and convinced a jury to punish a wrongdoer whose conduct exceeds that of simple negligence. This article
      will give an overview of punitive damages and provide some hints of how to obtain them in cases in California courts.
      In some respects, the standards regarding punitive damages in federal court are different than in California state
      courts, and the scope of this article does not cover the federal standards. • Most of you are, or should be, aware of
      the recent California Supreme Court decisions of Simon v. San Paolo (June 16, 2005) 35 Cal.4th 1159 and
      Johnson v. Ford Motor Co. (June 16, 2005) 35 Cal.4th 1191, interpreting the due process implication of punitive
      damages in excess of ratios of 10 to 1, in light of the U.S. Supreme Court decisions in BMW of North America,
      Inc. v. Gore (1996) 517 U.S. 559 and State Farm Mut. Automobile Ins. v. Campbell (2003) 538 U.S. 408.
      These cases and the due process issues relating to punitive damages are significant and complicated enough to be an
      article in and of themselves. I will not discuss in detail these cases, except as they apply to the trial practice issues I raise.

THE BASICS OF PUNITIVE DAMAGES                     plaintiff must show by clear and convinc-      punitive damages cannot merely be pled
Civil Code Section 3294(a) provides:               ing evidence that 1) an officer, director      at the outset. In order to even plead puni-
                                                   or managing agent of the corporation was       tive damages in an action “arising out of
in an action for the breach of an obligation not
                                                   the employee committing the oppression,        the professional negligence of a health
arising from contract, where it is proven by
                                                   fraud or malice; or 2) that an officer,        care provider,” the court must first find
clear and convincing evidence that the
                                                   director or managing agent of the corpo-       “there is a substantial probability that
defendant has been guilty of oppression, fraud
                                                   ration had advance knowledge of unfitness      the plaintiff will prevail on the claim
or malice, the plaintiff, in addition to the
                                                   of the bad employee and continued to           pursuant to Section 3294 of the Civil
actual damages, may recover damages for the
                                                   employee him or her with conscious dis-        Code [for punitive damages].” Code of
sake of example and by way of punishing the
                                                   regard for the safety of others; or 3) that    Civil Procedure Section 425.13(a). In
                                                   an officer, director or managing agent of      other words, the plaintiff needs to bring
As if having to prove oppression, malice           the corporation ratified a bad employee=s      a motion to the court to amend to plead
or fraud at a heightened burden of proof           wrongful conduct. See Civil Code Section       punitive damages. This motion operates
is not daunting enough, a plaintiff has            3294(b).                                       like a demurrer or motion for summary
yet another hurdle in order to obtain                 Bear in mind that a plaintiff in a          judgment in reverse; the court must
punitive damages against a corporate               medical malpractice case has yet another       determine only if there is a prima facie
employer for acts of its employees. The            hurdle to overcome. Unlike other cases,        case to support punitive damages, not

12                                                                                                                               Spring 2006
weigh the evidence. See College Hospital, Inc.    or approving or ratifying the wrongful          position in their CV, and will not want to
v. Superior Court (1994) 8 Cal.4th 704.           conduct. It is usually uncommon, especially     admit that they exaggerated in it. Also,
    None of these hurdles are easy, but they      with a large corporation, for an officer or     other employee witnesses should be asked
are certainly not impossible.                     director to be involved. Thus, plaintiff        questions at deposition about their under-
                                                  frequently needs to prove that one or more      standing of what this person does in his
DISCOVERY                                         persons involved are at a high enough level     or her job. These witnesses are less likely
It is a good idea to get started early in the     to be a managing agent. White v. Ultramar       to be prepared for these questions (at least
discovery process searching for evidence          (1999) 21 Cal.4th 563 sets out the appro-       the first time you do it) and will not be
to support punitive damages. This is              priate standard: “Supervisors who have          inclined to make his or her boss, supervi-
especially true for medical malpractice           broad discretionary powers and exercise         sor, or other manager look like a low level
cases since the CCP 425.13 motion to              substantial discretionary authority in the      employee.
amend must be filed within two years of           corporation could be managing agents.”
the filing of the complaint or not less than      Id., at p. 577. Bear in mind a plaintiff need   TRIAL
nine months before the first trial date,          only show that “the employee exercised          More likely than not, the defendant will
whichever is sooner. Even when not dealing        substantial authority over significant          request, pursuant to Civil Code §3295(d),
with these time constraints, oftentimes           aspects of a corporation=s business.” Ibid.     that the trial be bifurcated on the issue of
you will need to do follow up discovery           Anyone dealing with a potential for puni-       punitive damages; the jury must first make
and cannot wait until the last moment.            tive damages and needs to prove a manager       a finding in the first phase of the trial as
Besides, if the parties agree to a mediation      was a managing agent must read White,           to whether any defendant is guilty if
well in advance of the trial date, the            including the concurrence by Justice Mosk       malice, oppression or fraud, and then in
plaintiff will want to have the evidence          which provides more helpful details than        a second phase the jury will hear about
to back up a punitive damages claim at            the majority opinion.                           and consider the financial condition of the
the mediation.                                       The person(s) the plaintiff hopes to         defendant and decide the amount of the
    Written discovery should be propounded        prove is a managing agent should be             punitive damages. Section 3295(d) states
and questions asked at depositions to see         asked at his or her deposition detailed         that the court shall grant such a request.
if the conduct involved in the plaintiff’s        questions about what his or her position        Therefore, even if plaintiff does not like
case was something that occurred with             entails. Sometimes this works — many            the idea, such a motion cannot really be
this defendant previously with others. Of         people find it hard to resist making            opposed. However, it would be useful to
course, negligent conduct in itself will not      themselves and their position in a com-         file a statement of non-opposition wherein
constitute a basis for punitive damages.          pany sound important. Oftentimes,               plaintiff sets out some sort of system for
However, acts which are characterized by          however, smart defense attorneys keyed          how the matter will be handled. For
oppression or malice showing a conscious          in to this issue will prepare the witness       example, plaintiff could offer to stipulate
disregard for the rights and safety of others     to downplay their role in the company.          to the following method of discovering
may form a basis for punitive damages.            Suddenly, someone with a prestigious title      and presenting evidence on defendant’s
See, eg., Nolin v. National Convenience Stores,   who manages other managers makes him            financial condition: 1) bifurcation of the
Inc. (1979) 95 Cal.App.3d 279. Further,           or herself sound like a complete automa-        liability and punitive award issues at trial,
the failure to take responsibility for a          ton who does not even know what the             but with one jury; and then 2) should
known danger or a known errant employee,          definition is of the word “discretion.”         plaintiff prevail on a claim upon which
where this dangerous situation later causes       Written discovery is often helpful in get-      punitive damages can be based, allow the
injury, supports a finding of punitive dam-       ting around this problem. For example,          defendant a week to gather, and produce,
ages. See id.; Weeks v. Baker & McKenzie          plaintiff should ask for documents show-        the necessary financial documents before the
(1998) 63 Cal.App.4th 1128.                       ing and interrogatories about the job           damages part of the trial. The court in Mike
    Discovery should also be propounded           descriptions of all the company employees       Davidov Co. v. Issod (2000) 78 Cal.App.4th
early in the case to find an officer, director    involved. Curriculum vitae may also prove       597, approved of this method, as it pro-
or managing agent somehow engaging in             fruitful — few people downplay their            tects against premature disclosure of the

The Verdict                                                                                                                                 13
defendant’s financial condition, the purpose        Furthermore, the definition of “manag-             There is no basis in law for not instruct-
behind section 3295, yet spares the court       ing agent” in 3944 only encompasses part           ing the jury to take into account each of
the unnecessary and time-consuming affi-        of the definition as set forth in White v.         the above three factors. The most recent
davit-and-hearing process contemplated          Ultramar, and will make it more difficult          update of the CACI instructions from
by section 3295.                                to prove. CACI 3944 states that “an                December 2005 contains the same “use-
                                                employee is a managing agent if he or she          note” from CACI 3949 found in the
Phase One of the Bifurcated Trial. Assuming     exercises substantial independent author-          October 2004 revisions. This instruction
plaintiff has gathered the appropriate          ity and judgment in his or her corporate           apparently has not undergone further
discovery about the misconduct and poten-       decision making authority so that his or           revisions since October 2004, despite the
tial managing agents, and made it past any      her decisions ultimately determine cor-            case law. The “use-note” states that the
summary adjudication/judgment motion,           porate policy.” Plaintiffs should modify           Advisory Committee elected to make no
the presentation of this evidence should        this definition to add at the end “...or           changes to the instruction while recogniz-
not be terribly complicated or difficult. The   exercised substantial authority over sig-          ing the decision in State Farm v. Campbell.
plaintiff him or herself should be able to      nificant aspects of a corporation’s business,”     The “use-note” does allow that because
provide the most compelling version of any      relying on White, at p. 577. Finally, be sure      of ongoing evolution of punitive damage
malicious conduct directed at him or her.       to go through this instruction carefully           laws, the court should assess whether
However, some of the evidence will also         with the jury in the closing argument.             changes to the instruction are appropriate
likely need to be presented through defense                                                        “based on recent decisions.” The Advisory
witnesses called pursuant to Evidence Code      Phase Two of the Bifurcated Trial. The recent      Committee even went so far as to note
§776. For example, evidence about knowl-        U.S. and California Supreme Court deci-            that the California Supreme Court had
edge of dangerous conditions or errant          sions regarding the constitutionality of           granted review in three appellate decisions
employees and evidence about ratification       punitive damages do not prevent the                that involve post-Campbell punitive damage
of wrongful conduct. A person’s managing        presentation of evidence regarding the             awards, Henley v. Philip Morris, Inc., Simon
agent status will also most likely need to      financial condition of the defendant, no           v. San Paolo U.S. Holding Company, and
be handled in this way. If not before, by       matter how much the defendant tries to             Johnson v. Ford Motor Company. In Henley
now the defense will be clued in and will       argue otherwise.                                   v. Philip Morris, review was dismissed, and
have prepared the potential managing               CACI Jury Instruction No. 3949                  a petition for cert denied.
agents to make themselves sound as if they      instructs the jury to take into account the            As noted, the decisions in Simon and
had no discretionary power in the corpora-      wealth of the defendant in assessing a puni-       Johnson came down June 16, 2005. Neither
tion at all. Be sure to cross examine them      tive damage award. 3949 states that while          Simon nor Johnson stated in any way that
directly immediately from any useful            there is “no fixed standard for determining        the financial worth of the corporation
deposition testimony, and have handy their      the amount of punitive damage,” the jury           should be taken out of the picture in
CV and job description.                         should take into account three things:             deciding appropriate punitive damages
    Also, be very careful about the jury                                                           awards. In fact, both reiterated that a
                                                (a) How reprehensible was that defendant’s
instructions on punitive damages in the                                                            major goal of punitive damages is to deter
                                                conduct?(b) Is there a reasonable relationship
first phase. Submit your own modified                                                              future wrongful conduct. Arguably, finan-
                                                between the amount of punitive damages and
instructions. CACI 3944, the instruction                                                           cial condition is a primary consideration
                                                [name of plaintiff]’s harm?
in the first phase of a bifurcated trial for                                                       in determining what dollar amounts would
punitive damages against a corporate            (c) In view of that defendant’s financial condi-   deter a particular defendant. Moreover,
defendant, are quite confusing. Although        tion, what amount is necessary to punish           in a footnote, Johnson cited with approval
CACI instructions were written to be            [him/her/it] and discourage future wrongful        Neal v. Farmers Ins. Exchange (1978) 21
easier for the jurors to understand, this is    conduct? You may not increase the punitive         Cal.3d 910 with a parenthetical that “size
still a difficult one. Do not be shy about      award above an amount that is otherwise            of deterrent needed depends on the
asking the court to tweak it so that it is      appropriate merely because a defendant has         defendant’s financial condition.” See
easier to understand.                           substantial financial resources.                   Johnson, supra, at p. 1208, n.7.

14                                                                                                                                 Spring 2006
    Furthermore, there is certainly no                  Neal v. Farmers Ins. Exchange (1978) 21                    mation and discovery we need in order
authority to support telling or arguing to              Cal.3d 910, 928, internal quotation marks                  to present evidence of financial condition.
the jury that except under certain circum-              omitted.                                                   Do not simply rely upon figures from
stances, the ratio of punitive damages to                  The basis for CACI Jury Instruction                     the defendant, or worse still, rely simply
compensatory damages should be 10 to                    No. 3949 is sound, and there have been                     upon cross examination of a defense wit-
1. Do not be surprised if defendants try                no changes in the law which would warrant                  ness. It is important that this be presented
to argue otherwise, but also do not be                  limiting the instruction to remove reference               in a fashion that is clear and simple for
alarmed. They have no authority for such                to defendants financial condition.                         the jury.
an instruction given the various exceptions                As to presentation of evidence regard-
set forth in Simon and Johnson. Let the                 ing financial condition of defendants,                     CONCLUSION
jurors do what they may, and force defen-               Plaintiff should be given leave to present                 Litigating claims for punitive damages
dants to then argue to the judge that the               testimony of an expert economist. The                      presents a number of challenges. Much
amount must be reduced so that they, not                use of an economist for such a purpose                     of the evidence will not just fall in to place;
plaintiff, are behind the 8 ball. California            is well established. See Weingarten v.                     it requires careful planning. However,
has long accorded deference to a jury’s                 Superior Court (2002) 102 Cal.App.4th                      with his careful planning, and assuming
award of punitive damages. “[A] punitive                268, 273. An economist can properly                        the clear and convincing evidence the
damages award will be set aside only where              present the information on the defen-                      plaintiff needs for punitive damages exists,
it is so grossly disproportionate as to raise           dant’s net worth once appropriate dis-                     these challenges can be overcome.
a presumption that it is the result of pas-             covery has been allowed. Further, as most
sion or prejudice.” Adams v. Murakami                   of us are not ourselves economic whizzes,                  — Alexis McKenna is a partner at Winer,
(1991) 54 Cal.3d 105, 118 fn. 9, quoting                the expert can help to decide what infor-                  McKenna & Davis, LLP.

                                             The Law Offices of John D. Winer
                                                            take pleasure in announcing that

                                                                Alexis S. McKenna
                                                                    Emile A. Davis
                                                        have been given partnership status

                                                   Effective January 1, 2006, the firm name is

                                             Winer, McKenna & Davis, LLP

          The firm continues to specialize in plaintiff’s civil litigation practice, including workplace harassment and discrimination law, personal injury,
            elder abuse, professional malpractice, psychotherapist sex abuse, catastrophic injuries, aviation law, toxic torts and products liability.

                          The Ordway Building • One Kaiser Plaza, Suite 1450 • Oakland, California 94612
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                                                              Tel (415) 434-9300

The Verdict                                                                                                                                                    15
Be Direct!
                     Winning at Trial through
           Effective Direct Examination of Your Client

                                                            by Micha Star Liberty

D      irect examination of the plaintiff is
       inherently the most important
aspect of trial because it is the plaintiff’s
                                                  come across as natural and confident, but
                                                  will also improve her chances of convincing
                                                  the jury of the reasonableness of her request
                                                                                                      First, recognize the significance of the
                                                                                                  plaintiff’s testimony. Although we trial
                                                                                                  attorneys savor the combat and drama of
story, with all of its drama and suspense,        for compensation for the defendant’s            cross-examination, we can be prone to
that will persuade the jury to find liability     wrongdoing. Once on the stand, the plain-       neglecting the vital importance of the
and award damages to remedy the wrong.            tiff must be allowed to shine through           plaintiff’s testimony. Her testimony pro-
A well-crafted direct examination of the          open-ended, non-leading questions               vides the most powerful opportunity for
plaintiff allows the jury to synthesize all       designed to control the pace of the testi-      the jury to hear, evaluate, and hopefully
the evidence within the framework of your         mony and elicit a vibrant, compelling,          identify with your client.
presentation, to understand your client’s         and believable story the jury can relate to.        Second, because this part of trial is so
injury from her perspective, to engage                This article sets forth a roadmap for       important, there is a tendency to try to
with her emotionally, and to want to find         both preparing the plaintiff for her testi-     “sell” the plaintiff. The true challenge is
reasonable, substantial damages.                  mony and eliciting that testimony during        to take a back seat to the plaintiff and let
    Successful presentation of the case           direct examination.                             her shine through your questions. The
requires showing your plaintiff to be both                                                        winning direct examination is one where
credible and sympathetic. This accom-                                  p                          the plaintiff introduces the important
plishes the vital twin goals of building a                                                        evidence by telling her story. A good trial
coherent factual foundation for a finding                 Before everything else,                 lawyer will stay out of the plaintiff’s way.
of liability and encouraging the jurors to           getting ready is the key to success.         A great trial lawyer will gently guide the
identify with and feel empathy for the                           – Henry Ford                     plaintiff with short, open-ended questions,
plaintiff. There are several techniques for                                                       listening carefully to how the plaintiff’s
accomplishing these goals. As an initial          PREPARATION                                     story unfolds and keeping her on track.
matter, it is critical to prepare your client     Adopt the Proper Mindset                        Let the plaintiff speak in her own words
carefully — unguided, her testimony will          Two initial keys to planning a successful       with passion and conviction using simple
not flow naturally and inevitably in perfect      direct in which the plaintiff can shine are     descriptive language.
form. If the plaintiff is well prepared to tell   to respect the importance of the direct             Barbara Walters and Larry King conduct
a structured, logical story, she will not only    examination and subjugate your ego.             the best mainstream examples of direct

16                                                                                                                              Spring 2006
examination. They intuitively understand                 • Immediately after the collision (e.g.,           Next, review the facts that she will testify
that their guest is the true star of the show.       rebound, injuries, pain, anxiety, shock)            about as well as all previous statements
By contrast, channeling Bill O’Reilly or                 • Emergency room and initial treatment          and testimony. Go over any potential
Chris Mathews would be a mistake. The                    • Continued medical treatment and [attempted]   problems, such as impeachment through
questioning lawyer must restrain her ego             recovery                                            prior inconsistent statements. Then, casu-
and desire to convenience the jury and                   • Present physical limitations and handicaps    ally mock examine the plaintiff just to get
allow the plaintiff to be the star. For great-           • Exhibits that highlight the main points       her used to the format and the type of
est effectiveness, maintain this mindset             (e.g., photographs of the scene or of injuries,     questions that you will be asking. Every
throughout trial preparation and trial.              diagrams of the surgery, etc.).                     testifying plaintiff must understand the
                                                                                                         basic factors governing testimony. In
Organize the Testimony Logically                     On the other hand, there are of course              addition to discussing them in detail with
(Usually Chronologically)                            cases better suited to presenting the most          the client during prep, you might also
It is critical to choose a compelling structure      dramatic or important testimony early in            provide her with a written list so that she
for the testimony. The general structure of          the direct examination.                             can review it on her own the evening
the opening statement (or closing argument)                                                              before and morning of her testimony. The
can often be a fine guide. You should deter-         Prepare the Plaintiff                               advice should include the following:
mine the key elements of the direct exami-           Because plaintiffs are generally not used              • Make sure you understand each question
nation, and then arrange them logically.             to testifying, it is important to prepare              • Take your time in answering questions
    The best logical order is one that follows       them early and often. Plan a meeting well              • Only answer the question asked
an interesting story arc. One principle is           in advance of trial. At this first pre-trial           • Use simple, plain and direct language
to move from the status quo ante to the              meeting, explain trial procedure and the               • Don’t guess — if you don’t know some-
sudden harm, the damaged state, and                  plaintiff’s role. Remember how foreign              thing, just say so
knowledge of defendant’s culpability if              trial procedure is to laypeople.                       • Be polite and respectful (toward the jury,
possible. Although there are no hard and                 Describe the logistical components of           the judge, and even opposing counsel) at all
fast rules, the best order tends to be               making a good impression at trial. Empha-           times
chronological because jurors are best able           size that the jury will form opinions about            • Always tell the truth
to comprehend and follow a series of events          the plaintiff from the moment she steps into           • On cross, keep your answers short and
or other information it they are presented           the courtroom, long before she begins to            precise.
in the same chronological order as they              testify — is she sympathetic, haughty, kind,
really occurred.                                     angry, sloppy, inattentive, etc.? Remind her        Next, write out a script of the questions
    For example, the most logical way to             that the jury will naturally be curious about       the plaintiff will be asked and the antici-
present a plaintiff’s testimony in an auto           her — who is this person who had such an            pated answers (the testimony you want
personal injury action is:                           important life event that is the subject of         to elicit). Bring the plaintiff back to your
    • Personal background (e.g., family,             this trial, or who is this person who is            office one week before trial and go over
job, sports, pleasure activities, community          making me miss my job or soap operas?               the script question by question. Ask the
activities)                                              Therefore, the plaintiff should appear          plaintiff the precise questions you plan to
    • The setting before the collision (e.g., time   at trial every day dressed conservatively           ask at trial, listen to the answers, and
of day, purpose of drive / walk, thoughts / state    but comfortably. She should have the                discuss any discrepancies. Repeat this until
of mind, road conditions, view)                      appropriate non-verbal communication                the witness feels comfortable with the
    • Immediately before the collision (e.g.,        while walking into the courtroom, sitting           artificial way the two of you will be com-
sudden change / surprise,)                           at counsel’s table, taking the stand, and           municating during direct — then throw
    • The collision (e.g., chaos, braking,           maintaining eye contact with the jurors             away the script. Also, attempt to rid the
sounds, impact)                                      while testifying.                                   plaintiff of any bad habits, like whining

The Verdict                                                                                                                                          17
or being too stoic when talking about her        Whereas sympathy (i.e., the juror simply          emotional impact of the injury. In addi-
injuries. Do not attempt to change your          understands the plaintiff) is good, empathy       tion, call experts testifying about the
client’s personality, but fine tuning her        is better (i.e., the juror actually identifies    economic effects of the injury.
quirks is part of your job.                      with the plaintiff). When a juror empa-              Third, call lay witnesses. Sometimes
    Although it is tempting, especially for      thizes with the plaintiff, she believes the       these are eye witnesses who will bolster
newer practitioners, never bring that script     plaintiff “is just like me” in a significant      your liability claims, but frequently they
into the courtroom. Doing so risks making        way, allowing her to treat the plaintiff as       are family and friends of the plaintiff who
the plaintiff (or the attorney) sound flat       she would want to be treated if she were          will tell the jury what they have seen the
and too rehearsed. The direct examination,       put in the same position.                         plaintiff dealing with after the injury, and
if done well, should sound like a conversa-                                                        about what makes her life meaningful and
tion between the attorney and the plaintiff      Set the Stage for the Examination                 how the plaintiff’s life has changed post
where the plaintiff does most of the talk-       Generally, present your plaintiff last. By        injury. This will further the goal of creat-
ing and the jurors are raptly listening.         the time your client takes the stand, she         ing credibility through stories about the
                                                 should be standing on a solid foundation          plaintiff’s desire to persevere.
                     p                           of credibility and empathy built by other            With the foundation laid by other wit-
                                                 witnesses in the case. The plaintiff should       nesses, the stage is set for the plaintiff to
            It’s no use saying,                  be the final witness in your case-in-chief.       testify.
         ‘We are doing our best.’                Presenting all other testimony before the
         You have got to succeed                 plaintiff takes the stand gives the jury the      Keep It Simple
        in doing what is necessary.              opportunity to learn about the plaintiff          The most common mistake made during
             – Winston Churchill                 from others first. The jury is educated           direct examination is eliciting too much
                                                 about what they will be asked to decide,          unimportant testimony from the plaintiff.
DIRECT EXAMINATION OF THE PLAINTIFF              and they learn that disinterested (or less        This will bore or confuse the jury. Trim
Effective direct examination has two vital       interested) people have seen with their           the fat. Be respectful of the jury’s time
goals: you establish the plaintiff’s credibil-   own eyes what the plaintiff claims to be          and they will reward you.
ity, and you create an empathetic link           true. It minimizes the risk of the jury              By the same token, focus adequately on
between the plaintiff and jurors. First, the     perceiving the plaintiff as a whiner or           the most critical portion of the testimony.
credible plaintiff’s genuine honesty pro-        complainer, because the plaintiff does not        Get to it quickly, develop it sufficiently,
vides a foundation on which the case can         have to repeat the same information pro-          then stop. The resulting effect should be
be explained. The jury should understand         vided by other witnesses.                         a story on direct that trots along at a
that the plaintiff is here only because she         First, if liability is contested, as in most   pleasant pace, then shifts to careful slow
has been put in an unfortunate position          cases, it should be established through           motion to highlight the injury’s occurrence
by someone else’s carelessness. She has          adverse examination of the defendant.             and its impact on the plaintiff, as you
made her best efforts to heal and move           Establishing liability shows that the             reach the finish line.
on. But the truth of the harm imposed on         plaintiff is blameless (or at worst less             Thus, in a garden-variety personal
her by the defendant remains. This leads         blameworthy) and has been wronged by              injury action, for example, direct examina-
to the second goal: the empathy in the           the conduct of the defendant. It provides         tion might be only 30 minutes, focused
jury’s minds and hearts for the plaintiff.       an opportunity for you to elicit the jury’s       on the critical elements of liability and
Ideally, jurors will identify themselves         outrage. Doing this before the plaintiff’s        damages.
emotionally with the plaintiff as a person.      testimony enhances her credibility and
                                                 the jury’s empathy with her.                      Execution
                                                    Second, call doctors and other profes-         It is vital to introduce the plaintiff through
     Reprinted from CAOC Tahoe 2006
                                                 sional experts to establish the existence of      testimony about her background. Ask
     Travel Seminar Materials.
                                                 an actual injury and the physical and             about her background (family, education,

18                                                                                                                                 Spring 2006
relationship to the community, family,           far more compelling than if you are             CONCLUSION
work, etc.), so the jury really knows her as     explaining it to the jury. Minimizing your      In conclusion, the best direct examination
a human being, not simply a “plaintiff.”         words also minimizes your presence, allow-      of the plaintiff is one that is carefully
    Next, depict the setting of the incident     ing the jury to bond with the plaintiff.        prepared, practiced (but does not sound
that caused her injuries. Elicit preliminary        Make every effort to avoid drawing an        over-rehearsed), presented in a logical
descriptions with sensory images, allowing       objection, because objections can disrupt       order, and uses vivid and simple language.
the plaintiff to paint a picture so that the     your pace and endanger the fragile plaintiff-   When you gently guide the well-prepared
jury can relive the incident. Remember           jury bond. Pay special attention to ques-       plaintiff with short, open-ended questions,
that details enhance both effectiveness          tions that are compound, that call for          with focus on only the important facts,
and credibility.                                 cumulative testimony, or that call for a        you will succeed in your dual goals of
    Finally, ask the plaintiff to talk about     narrative answer.                               showing credibility and creating empathy.
how her injuries have affected her life.            Finally, physical techniques can maxi-       Although turning over some responsibil-
    In any or all of these areas, you will       mize the focus on the plaintiff. Stand so       ity to the client may feel dangerous or
address dangerous areas and acknowledge          that the plaintiff is looking at and talking    discomforting, it is the best way to accom-
any weaknesses that will be covered in           to the jury, e.g., stand at counsels’ table,    plish an effective direct examination, and
cross-examination with her so the cross is       a lectern, or adjacent to the jury box.         in turn win your case.
less effective.                                  Furthermore, exhibits can be useful as
    Throughout the examination be mind-          long as they do not distract from the star      — Micha Star Liberty, Esq, of the Liberty
ful of the following factors in order to fully   (the plaintiff). You can highlight and          Law Office, is the Editor of The Verdict, and
recreate the plaintiff’s life from the time      summarize the facts using exhibits after        specializes in litigating serious injury, civil
of the incident until the present:               the plaintiff has substantially completed       rights, sexual abuse and employment dis-
    • Organize the testimony so the jury sees    her oral testimony.                             crimination matters.
the action from the plaintiff’s point of view.
    • Control the pace of the examination for
maximum absorption by the jury, e.g., slow
down to show plaintiff was in control or speed
up to show plaintiff had no warning or time                                Advertise in THE Verdict
to react.
    • Use simple, sensory language. Avoid             The Verdict magazine is distributed as a benefit to ACCTLA members.
legalese or technical jargon.                         The Verdict is also distributed to all judges in Alameda and Contra
    • Use the present tense for dramatic              Costa counties as well as to every major plaintiffs’ firm in the East Bay.
effect.                                               The Verdict is a magazine of general interest, read by professionals
                                                      who want to keep up with the latest legal and political developments
Additionally, transitional questions are              in California law.
useful tools as they act to help navigate
through the various subjects in her testi-            The affluent readers are a ready market for quality services and
mony. This will help avoid confusion and              merchandise. The Verdict offers a rare opportunity to reach this
distraction and allow the jury to focus on            sophisticated market while supporting an organization that continues
the most important facts.                             to make both practical and thoughtful contributions to the California
   Ask open-ended questions to establish              legal landscape.
the Who, What, Where, When, and Why.
                                                      For more information, please contact Young Design & Production,
Obviously, do not ask leading questions.
Open-ended questions allow the plaintiff
to tell her story in her own voice. This is

The Verdict                                                                                                                                  19

                                                                                                            News listed alphabetically
                                                                                                             by firm or member name;
                                                                                                            ACCTLA members’ names
                                                                                                                           are in bold.

    Great Results by Robert Diener            He was taken by ambulance to the emer-         bad knee and ankle, no record) was not
     in Limited Jurisdiction Court            gency room, x-rayed, medicated and             in the crosswalk, but he also testified
Robert Diener recently obtained a jury        released. Two days later, he returned and      that Mr. Fews was watching him and
verdict of over $29,000 out of the Richmond   received more meds. He got follow up           then deliberately ran into the side of his
limited jurisdiction court in the matter of   treatment from a medical doctor on a lien      car. He said that he thought that it was
Fews v. Bradburry.                            basis, which included physical therapy         a scam.
    Wesley Fews was struck a glancing         and acupuncture. After a couple of                The jury returned a special verdict
blow and thrown to the ground when he         months, he stopped treating. He went to        awarding all of the medical expenses as
was hit by a car while crossing the street.   the VA complaining of groin pains which        prayed plus more than $20,000 for pain
He was stepping forward with his left leg     he did not think were related to the acci-     and suffering. Therefore, Mr. Diener has
when he heard the sound of rubber on the      dent, but they ruled out other causes, such    shown it is possible to get a Contra Costa
road and tried to stop and turn away. His     as a hernia, so he went back to the doctor     jury in a soft tissue case to realize that
left knee was hit by the front fender on      and was given another round of treatment,      someone has been hurt and to compensate
the passenger side of the car. As he spun     after a four month hiatus. His medical         them fairly.
around, the side view mirror hit him in       bills (including the hospital and ambu-
the back and was torn off of the car. His     lance) totaled $8,900, excluding the
left elbow punched a hole in the front        charges for missed appointments. The
windshield. He suffered no broken bones,      defense doctor opined that only the first
just “soft tissue injuries” which lingered.   two months of treatment were reasonably            A Very Successful Start to 2006
                                              related, and not all of that, because he did            for Charles Dell’Ario
                                              not like acupuncture. The treating physi-            of Dell’Ario & LeBoeuf, PC
  If you have any news of interest,           cian related all of the treatment to the       In a bankruptcy case involving a violation
  please email it to Micha Star Liberty,      accident.                                      of the automatic stay that Charles Dell’
  micha@libertylawoffice.com.                    The defendant not only claimed that         Ario started in 1998, he pursued appeals
                                              Mr. Fews (age 54, legally blind, prior         to the Ninth Circuit finally winning on

20                                                                                                                          Spring 2006
rehearing, and establishing that emo-         the immune system so that it renders a        expenses, lifetime future medical care,
tional distress damages may be recovered.     person completely unable to work for          temporary disability indemnity and pen-
(In re Dawson, 390 F.3d 1139 (9th Cir.        unpredictable periods. The employee was       alties is estimated at 1.1 million dollars.
2004), cert den. 163 L.Ed.2d 275.             able to create his own company with a
(2005).) In February, the bankruptcy          partner that “shadowed” him and could
judge ruled on remand that his client did     take over when he became incapacitated.
suffer emotional distress and set the         With the advantage of an always available
matter for further hearing on damages         substitute and complete control over his                 Educational Update:
and fees.                                     work schedule and environment, he was            Bacara Seminar, June 9-11, 2006
   A week later, Mr. Dell’Ario won a          able to earn up to $160,000 a year. Because   ACCTLA, along with other local Trial Law-
family law appeal from the First District     the disease made him unemployable in          yers Associations from around the state, will
followed by a successful writ petition        the open labor market (the defendant          gather at the beautiful Bacara Resort outside
(Blumenthal v. Superior Court, 2006 Daily     could not identify any employer who could     of Santa Barbara for three days of education
Journal D.A.R. 2995) on March 10 and          accommodate the unpredictable symp-           featuring some of the top plaintiffs’ litigators
reported on the front page of the Daily       toms) he was awarded total life time          in California. Call SFTLA, (415) 956.6401
Journal on March 14.                          disability income. The total value of the     for more information, or Bacara Resort for
   Finally, he won a commercial unlawful      award including self-procured medical         room reservations, (877) 422-4245.
detainer appeal, Gill Petrolium v. Hayer,
2006 WL 627158 on March 15 that also
had a published opinion.

                                                                       ACCTLA Mentoring Program
                                                    Take advantage of ACCTLA’s Mentoring Program to improve
                                                    the quality of litigation in our courts. Attorneys who call will
            The Law Firm of
                                                    be referred to a mentor attorney for free consultation. The
     Larson, Vandersloot & Rivers
      Obtained a 100% Perminate                     mentor will not prepare your case but will assist you in your
          Disability Rating for                     approach to the case. This program is not just for newer
       Chronic Fatigue Syndrome                     attorneys, but also is available for seasoned practitioners
Ken Larson, after 11 years of litigation,           who run into problems or simply want to bounce ideas off
received notice on January 31, 2006 that            another seasoned practitioner. The mentors are all ACCTLA
the Court of Appeal upheld his client’s
                                                    members, with varied degrees of experience in varied areas
worker’s compensation award of 100%
                                                    of the law. Whether your concerns are Motions in Limine,
total permanent disability for the employee
who suffers from chronic fatigue syndrome           jury selection, problems that arise during trial or issues relat-
but continues to earn a six figure income.          ing to proposed instructions, or questions involving any of
The employee, a former EST program                  the earlier stages of litigation.
leader, contracted stomach poisoning
during a seminar in Mexico and sub-                 Please call ACCTLA Executive Director Patricia A. Parson
sequently developed chronic fatigue                 at (510) 538-8286.
syndrome, a disease which compromises

The Verdict                                                                                                                              21
            Current ACCTLA Sustaining Members
       Kelly Balamuth
       Molly Harrington          HILDEBRAND, McLEOD           KRISTIN LUCEY
       Jim Yu                    & NELSON
                                   Frederick L. Nelson        GEORGE W. NOWELL
     RICHARD J. BASKIN             David B. Draheim
                                   Anthony S. Petru           RICHARD PHELPS
                                 HINTON, ALFERT & SUMNER
                                                              PAUL L. REIN
     CASPER, MEADOWS,              Peter Hinton
     SCHWARTZ & COOK               Peter Alfert
                                                              ROBERT G. SCHOCK
       Stan Casper                 Scott Sumner
       Michael D. Meadows          Elise Sanguinetti
                                                              RICHARD J. SIMONS
       Andrew C. Schwartz          Jeremy Lateiner
       Larry E. Cook
                                 HOBIN, SHINGLER & SIMON      RANDALL E. STRAUSS
       Thom Seaton
                                  Richard Hobin
     LYLE C. CAVIN, JR.           Ronald J. Shingler          JOSEPH E. TOMASIK
                                  Aaron Simon
     STEPHEN H. CORNET                                        R. LEWIS VAN BLOIS
                                 FREDERICK JOHN JAMES
     A. CHARLES DELL’ARIO                                     CHRIS VIADRO
                                 KAZAN, McCLAIN, ABRAMS,
                                   Steven Kazan
     WILLIAM E. GAGEN, JR.         David McClain
                                   Denise Abrams                         a
     KERRY GOUGH                   Francis Fernandez
                                   Dianna Lyons               Become a sustaining member
     ROBERT B. GRAY                Simona Farrise             and reap the benefits! They
                                   Gordon Greenwood           include free admission to
     GWILLIAM, IVARY, CHIOSSO,                                Judges’ Night and the
                                   Frances Schreiberg
     CAVALLI & BREWER                                         What’s New in Tort & Trial
                                   Terry Gross
       J. Gary Gwilliam                                       seminar. See the facing page
                                   James Oberman
       Steven R. Cavalli                                      for the tear-out Year 2006
                                   Andrea Huston
       Stephen J. Brewer                                      Dues Notice or call Pat Parson
                                   Petra DeJesus
       Debra DeCarli                                          at (510) 538-8286.
                                   Anya Fuchs
       Monique Morales
                                   Catosha Woods
     HADDAD & SHERWIN              Ian Rivamonte
      Michael J. Haddad            Autumn Mesa
      Julia Sherwin                Matthew Thiel
                                   Barbra Ferre
                                   Justin Bosl

22                                                                                   Spring 2006
                             ACCTLA                ALAMEDA CONTRA COSTA TRIAL LAWYERS’ ASSOCIATION

                                                 2006 Dues Notice

  Patricia A. Parson, ACCTLA Executive Director
  1884 Knox Street, Castro Valley, CA 94546
  Phone and Fax: 510/538-8286

  Enclosed is my check payable to ACCTLA for my 2006 membership dues. I apply for the following:

                            Law Student . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 15
                            Legal Assistant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 30
                            New Admittee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 35
                            2nd or 3rd year in practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 50
                            4th Year and Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 95
                            Sustaining Membership (includes one year’s membership,
                            one free admission to Judges’ Night banquet, one admission
                            to the popular What’s New in Tort and Trial Practice seminar,
                            and special recognition in The Verdict and at Judges’ Night). . . . . . . . . . . . .$400
                            Expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$150

                            I am a regular member (practice predominantly involves representing plaintiffs
                            in tort matters, criminal defense, family law or general civil litigation).
                            I am an associate member (non-voting member whose practice primarily involves
                            insurance defense or criminal prosecution).




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                                         Dedicated to the improvement of the fair administration of justice.

The Verdict                                                                                                                                      23

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