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Investigations Serving Bay Area Attorneys since 1996
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See why ACCTLA members trust Mike Spencer for locating witnesses and defendants,
taking statements, doing scene sketches and photography, and serving process on difﬁcult subjects.
Civil, Criminal Defense, Family Law
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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
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
ABOUT THE COVER
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
Based upon my research of earlier suits the Golden Gate Bridge. We faced an
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
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-
Would you like to be published?
Publication in The Verdict is excellent
Have you renewed
exposure. Our readers are most interested in
issues surrounding plaintiffs’ personal injury, your ACCTLA
family, appellate, criminal and/or business membership yet?
law. See page 23 for
If you are interested in submitting an article the tear-out
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Year 2006 Dues Notice!
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
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 firstname.lastname@example.org. Member CAOC/ACCTLA/ATLA • AV Rated
The Verdict 7
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
“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 email@example.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
Tel (510) 433-1000 • Fax (510) 433-1001 • Toll Free (888) 884-4529
580 California Street, 16th Floor • San Francisco, California 94104
Tel (415) 434-9300
The Verdict 15
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
• 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’
firstname.lastname@example.org. 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
BALAMUTH HARRINGTON, LLP DAVID HICKS JOANN KINGSTON
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
TERRY D. BULLER
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
LYLE C. CAVIN, JR. Ronald J. Shingler JOSEPH E. TOMASIK
STEPHEN H. CORNET R. LEWIS VAN BLOIS
FREDERICK JOHN JAMES
A. CHARLES DELL’ARIO CHRIS VIADRO
KAZAN, McCLAIN, ABRAMS,
STEVEN L. DERBY FERNANDEZ, LYONS & FARRISE CHERYL WHITE
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
CAVALLI & BREWER What’s New in Tort & Trial
J. Gary Gwilliam seminar. See the facing page
Steven R. Cavalli for the tear-out Year 2006
Stephen J. Brewer Dues Notice or call Pat Parson
Debra DeCarli at (510) 538-8286.
HADDAD & SHERWIN Ian Rivamonte
Michael J. Haddad Autumn Mesa
Julia Sherwin Matthew Thiel
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).
Dedicated to the improvement of the fair administration of justice.
The Verdict 23