THE UPDATE SDDL San Diego Defense Lawyers by jennyyingdi


									THE UPDATE
                                                                                                                                  Fall 2002
                                                                                                                                  Volume 7
                                                                                                                                  Issue 3

                 San Diego Defense Lawyers Association

                            The Path to Justice:                                    details of attorneys’ arguments and witnesses’
In This Issue               How Jurors Process Information                          testimony, they are using systematic processing.
                              Although jurors are tasked with a unique and          Systematic processing occurs when jurors devote
Path to Justice        1                                                            the substantial cognitive energy necessary to
                            formidable decision-making responsibility, their
Ins and Outs           2    information processing strategies are the same as       attend to the details of the attorneys’ and wit-
President’s Message    4    in many other decision-making contexts. Attor-          nesses’ messages (e.g., arguments, facts, opinions
                            neys often believe that they can stretch jurors’        and evidence). Stated differently, jurors use
Juror’s New Math       4                                                            systematic processing when they base their
                            motivation and capabilities for information
Bottom Line            5    processing due to the significance of their case.       individual or psychological verdicts upon the
Treating Physicians    7    However, like in many other decision-making             message-based information they learn during the
                            arenas, jurors are ‘cognitive misers’ and their         trial. By contrast, heuristic processing refers to
New Calderon Process   8                                                            situations in which jurors use ‘cognitive rules of
                            information processing tendencies should serve as
SDDL Officers          9    a buoy when preparing to navigate the perilous          thumb’ for evaluating evidence and testimony.
Membership Info        10   waters at trial.                                        Heuristics are non-message based cues (e.g.,
                                                                                    credibility, representativeness, availability,
SDDL Golf Tournament   11   Jurors’ Information                                     simulation, nervousness) that jurors use as a basis
                            Processing Tendencies                                   for evaluating arguments, evidence and testimony.
                               Whereas only a minority of jurors are motivated      Because heuristics require significantly less
                            to pay close attention to all of the information        cognitive energy to process information than
                            presented during trial, the majority are less           systematic processing, jurors overwhelming prefer
                            concerned with tracking what can be an over-            to process information and base their decisions on
                            whelming amount of detail. Moreover, jurors are         heuristics.
                            different with respect to their information process-       Stories are jurors’ preferred method of organiz-
                            ing capabilities. Some jurors are able to attend to,    ing information because they simplify their
                            comprehend, and organize substantial amounts of         cognitive task. Heuristics information processing
                            information, whereas other jurors become easily         works well for jurors because it is consistent with
                            confused when they are confronted with a large          their preference for thematic presentations.
                            corpus of evidentiary information. A common             Heuristic processing often appears to be irrational
                            characteristic of all jurors, however, is that they     or illogical to attorneys because it is not the
                            prefer information to be simplified and thematic.       logico-deductive model lawyers hope for. Nonethe-
                               Certainly, the nature of a legal dispute will        less, it is the cognitive posture assumed by jurors
                            affect jurors’ motivation to devote their undivided     and it serves them well. Jury research provides an
                            attention to attorneys’ presentations during trial. A   opportunity to study how jurors’ heuristics affect
                            criminal trial teeming with sordid details is likely    jurors’ understanding of the case.
                            to capture jurors’ attention as opposed to a long          Although some jurors may start out at trial
                            and pallid anti-trust case. Even an interesting         trying to digest the ‘informational feast’ prepared
                            business torts case chock full of ‘vivid and juicy’     by the attorneys and witnesses, jurors will quickly
                            testimony will lose its hypnotic hold on jurors if      become sated by the information overload and rely
                            the trial drags on for a substantial period of time.    on heuristic processing as the preferred cognitive
                               We often hear clients remark that, “If the jurors    strategy for arriving at their individual verdicts
                            would just listen to the message I am trying to give    and damage assessments. Because information
                            them, they should have no trouble finding for my        overload quickly sets in for jurors even in a short
                            client.” If it were that simple, trial consultants      trial, jurors opt for a less cognitively demanding
                            would be reading the Want Ads. To many attor-           strategy for evaluating the relative merits of each
                            neys, jurors information processing and decision-       side’s case. Heuristics are like ‘cognitive shortcuts’
                            making appears to be capricious and lacking a           that jurors use so as to simplify their daunting task
                            rational foundation. It is disheartening to many        of tracking, organizing, and evaluating a seem-
                            attorneys that jurors do not seem to hone their         ingly voluminous body of material.
                            attention on the details of the evidence presented.     Heuristics
                            Jurors do have a rational and logical format for
                            processing and organizing information — a story.           Jurors rarely make a conscious decision to use
                            However, the manner in which jurors piece               heuristics to simplify their cognitive tasks during
                            together the story may not always comport with          trial. Rather, heuristics just ‘kick in’ automatically,
                            attorneys’ expectations.                                much like a default option in computer software,
                                                                                    when jurors perceive very little vested interest in
                               When jurors are motivated to attend to the           processing courtroom proceedings, or become
                                                                                    overwhelmed by an enormous body of information.                                                                        Moreover, even if jurors get caught up in their
2                                                           Volume 7 · Issue 3

                                  civic duty when sworn in by the court and hang on        reinforce jurors’ already dim view of attorneys
    Ins & Outs                    every word during opening statements, the effect is      and, as a result, undermine their client’s case
                                  ephemeral and, before long jurors are using              while elevating the value of the witnesses’ testi-
                                  heuristics as the cognitive cipher for understand-       mony. For example, impeaching a witness is a
    Mike Neil of Neil, Dymott,    ing case storylines and evaluating witnesses.            painful process for the witness and the jurors. The
     Perkins, Brown & Frank                                                                jurors empathize with the witness’ public humilia-
     was appointed a vice-           Although there are a number of heuristics that
                                  affect jurors’ decision-making, the current discus-      tion. When jurors perceive that attorneys derive a
     president of the presti-                                                              sadistic pleasure from their triumph over a
     gious Federation of          sion will focus on a few of the cognitive shortcut
                                  that play a more prominent role in affecting jurors’     witness, they hold this against the attorney, and
     Defense and Corporate                                                                 the attorney’s client (DecisionQuest, 2000).
     Counsel (FDCC).              decision making as a trial unfolds. Three heuris-
                                  tics have emerged as having a substantial impact            Because of their credentials, the war of experts
    Dana M. Reeder of Bacalski,   on jurors’ evaluation of evidence, arguments,            can be won before a rhetorical shot is fired on the
     Byrne & Koska eloped to      witnesses, and attorneys: (a) credibility, (b)           courtroom battlefield. However, even the most
     St. Lucia in May and has     representativeness, and (c) availability.                credentialed expert must be believed by the jury.
     changed her name to             Credibility. The credibility of the source is         Despite the fact a witness may be telling the
     Dana M. Pustinger. Not       arguably the most significant heuristic employed         ‘truth,’ jurors may doubt the veracity of the
     to be outdone, the firm      by jurors. It is the most significant for two reasons:   witness due to his/her composure under fire. To be
     also committed itself to a   (a) it is invoked most frequently by jurors, and (b)     sure, jurors expect some degree of nervousness
     new relationship and         it exerts the most influence on jurors’ evaluations      from witnesses. Jurors rely to a large extent on a
     changed its name to          of attorneys’ arguments and witnesses’ testimony.        witness’ verbal and nonverbal behavior to evaluate
     Bacalski, Byrne, Koska &     Credibility is a multidimensional construct              the veracity of a witness (deTurck & Miller, 1985;
     Ottoson. Gary Ottoson,       consisting of five components: (a) expertise or          deTurck, Feeley & Roman, 1995; Feeley &
     formerly a managing          competence, (b) character or trustworthiness, (c)        deTurck, 1996).
     partner at Haight, Brown     sociability or likeableness, (d) composure or               Representativeness. The representativeness
     & Bonesteel has been         nervousness, and (e) extroversion or outgoingness.       heuristic is tied directly to how we characterize or
     named partner in charge      Jurors often pay little attention to what a witness      stereotype other people and situations. The
     of new office space in       has to say, but weighs the value of the witness’         question jurors ask themselves is: “How likely is it
     downtown Los Angeles.        contribution based on his/her credentials and/or         that Person A or Event B is a member of Category
     Ottoson has over 33 years    communicative ability. Rather than hang on every         X?” For example, jurors may ask how likely is it
     experience in large          word of a witness’ testimony, jurors prefer to sit       that the physician (person) is honest (category)?
     complex trials including     back and say to themselves, “She is a top expert,        Jurors answer this question by matching up the
     many high profile cases      whatever she says must be true.” Or, jurors may          characteristics of Person A with the defining
     including Hinckley v.        evaluate the witness according to how they               characteristics of Category X. There is no univer-
     PGE (of Erin Brockovich      communicate, “He really seems very relaxed and           sal set of category-defining characteristics used by
     fame) and Directo v.         comfortable, he must be telling the truth.”              all jurors.
     Johns-Manville, the              Jurors weigh the relative importance of the five        For example, a witness may be introduced as
     second asbestos case tried   dimensions based upon the role of the individual         with an impeccable reputation. However, if jurors
     in California. He is a       (attorney, expert witness and fact witness) and the      believe that the witness ‘looks shady,’ and they
     Fellow of the American       nature of the case. For example, in medical              perceive a lack of eye contact and a nervous
     College of Trial Lawyers,    malpractice suits, jurors’ concerns regarding the        tremor in the voice, they are likely to question the
     a member of American         physician are focused almost exclusively upon his/       veracity of the witness. In other words, the
     Board of Trial Advocates     her competence and likeability. Although jurors          behavior and appearance of the witness was
     and past President of both   want to know that the physician was well-schooled        representative of their defining characteristics of a
     the Association of           and trained, jurors most often evaluate a physician      deceptive witness (deTurck, Texter & Harszlak,
     Southern California          based on his/her likeability - their perception of       1989). Jury research is a most useful vehicle for
     Defense Counsel and          the doctor’s ‘bedside manner.’ Because jurors            revealing the defining characteristics most often
     California Defense           often decide medmal cases based on a physician’s         used by jurors.
     Counsel. Also joining Mr.    likeability, witness preparation sessions assume a
     Ottoson is Ellen Hurley                                                                  In the case of an event, e.g., an individual
                                  key strategic position in counsel’s and consultant’s     injured by a product, jurors may find the manufac-
     from the Haight firm.        case preparation.
     She is a 14 year attorney                                                             turer liable because of the fact that there are a
     with expertise in contami-      A majority of jurors come to the courtroom            small number of other similar accidents. Despite
     nation, employment and       distrusting members of the legal profession; their       the fact that the manufacturer has taken laudable
     free speech matters.         evaluations of counsels’ credibility is determined       precautions in the design and manufacture of the
                                  almost exclusively by his/her conduct during trial.      product, as well as warning consumers of potential
                                  Jurors expect attorneys’ to be overly aggressive         hazards, jurors often may perceive that other
                                  when advocating their client’s position, especially      similar accidents to be indicative of a problem
                                  when questioning witnesses during cross-examina-         with the product. Stated differently, the prevailing
                                  tion. By showing witnesses respect and proper            defining characteristic in this example is the fact
                                  deference, attorneys gain invaluable currency            that jurors believe that several similar accidents
                                  toward their credibility.                                are representative of a defective product and,
                                     Attorneys who attack a witness or use sarcasm         therefore make the attribution that the manufac-
                                  toward witnesses and opposing counsel only               turer is negligent, despite the fact that accident
                                                                Volume 7 · Issue 3                                                               3

rates associated with the manufacturer’s product         information. The more a given piece of evidence,
may be extremely low, e.g., 5 in 10,000,000.             testimony or argument is linked with other             Ins & Outs
   The representative heuristic permeates jurors’        information, the more likely it is to be recalled if
decision making in other practice areas as well. In      any other piece of information in that network is
                                                         recalled due to the number of close cognitive links    Lincoln, Gustafson &
a fraud case, for example, jurors often determine if                                                              Cercos has added Erin M.
a fraud was committed based on their personal            formed by the juror. Research generally indicates
                                                         that three repetitions produce the most positive         Ferguson and Jill S.
defining characteristics for what constitutes a                                                                   Dickerson as associates in
fraud, as opposed to instructions from the bench.        persuasive outcome. Additional repetitions run the
                                                         risk of causing jurors to evaluate the information       their San Diego office.
Jurors simply compare the alleged fraudulent                                                                      Both are native San
actions with their own individual defining               negatively due to overkill or overload. The
                                                         negative reactions by jurors to the too-oft repeated     Diegans who received
characteristics of fraud. If the actions exceed a                                                                 their J.D. from the
certain threshold, the jurors determine there was        information will spread to other evidence put on
                                                         by counsel because of the cognitive networking by        University of San Diego.
fraud. Some jurors may require only that an entity                                                                Ms. Dickerson received
made misrepresentations to decide there was a            jurors.
                                                                                                                  her undergraduate degree
fraud without caring a lick whether the misrepre-           In summary, jurors are cognitive misers who           from San Diego State, and
sentations were material or relied upon. To these        evaluate witnesses and evidence based to a large         Ms. Ferguson received
jurors, there is only one defining criterion that        extent on cognitive shortcuts or heuristics that         hers from McCallister
matters, someone was not totally honest.                 simplify their decision-making task. Despite the         College in Minnesota.
   Availability. Availability refers to situations in    fact that heuristics may at times appear to be
which jurors’ judgments are affected by informa-         irrational to attorneys, they are a very logical       The Law Offices of Kenneth
tion that is most easily recalled. Because jurors        strategy for jurors. Jury research can provide           N. Greenfield has moved
base their decisions on only a fraction of the           invaluable insight as to how jurors are processing       from its 8-year existence
information presented during trial, their evalua-        key information. The results of the research can         in UTC to the Rancho
tions are affected to a large extent by the ease with    provide key strategic insight as to how to position      Bernardo area. Ken was
which they can recall information. In other words,       certain information so as to maximize its persua-        inducted into ABOTA this
jurors do not base their verdicts and damage             sive efficacy.                                           year and has recently
awards on all of the information presented during        References                                               added Jill Grathwohl as
a trial; rather, they base their decisions on the                                                                 an associate in his office.
                                                            DecisionQuest (2000). Annual juror outlook            Ms. Grathwohl’s primary
information which is most easily recalled. Thus,
                                                         survey. Atlanta, GA: DecisionQuest.                      areas of practice are
jurors base their decisions on only a fraction of the
information they are exposed to; a small portion of         deTurck, M.A., Feeley, T.H., & Roman, L. A.           insurance bad faith
the information which most readily jumps to              (1997). Vocal and visual cue training in behavioral      litigation and general civil
mind.                                                    deception detection. Communication Research              litigation in the areas of
                                                         Reports, 14, 249-259.                                    commercial, construction
   There are several factors that play a role in the
relative effects of availability: visual/graphic            deTurck, M.A., Texter, T.A., & Harszlak, J.J.         defect and personal
information and repetition. Jurors prefer visual/        (1989). Effects of information processing objec-         injury/product liability.
graphic information because it requires less             tives on ratings of witness perjury. Communica-          She received her Juris
cognitive effort than textual information. More-         tion Research, 16, 434-452.                              Doctor degree from City
over, graphic information is substantially more                                                                   University of New York
                                                            deTurck, M.A., & Miller, G (1985). Decep-             School of Law in 1997,
vivid than pallid textual information and, as a          tion and arousal:
result, is more easily recalled. Simple graphics                                                                  and her LL.M. from The
                                                            Isolating the behavioral correlates of deception.     University of San Diego
with an “instantaneous take-away” message exert
                                                         Human Communication Research, 12, 181-201.               School of Law in 2000.
a substantial impact upon jurors’ evaluations of
evidence, testimony and arguments. To the extent            Feeley, T.H., & deTurck, M.A. (1996). Global          Jill was formerly an
that jurors must expend a great deal of cognitive        cue usage in behavioral lie detection. Communica-        associate with The
effort to understand a graphic, the effect of the        tion Quarterly, 43, 420-430                              Lendrum Law firm and
visual is likely to be minimal, if in fact jurors do                                                              served as an extern law
not completely ‘turn off’ and ignore the graphic                                                                  clerk to Justices Charles
display. It is imperative that graphics have a                                                                    A. LaTorella and Edwin
simple, easy to understand message that can                                                                       Kassoff of the New York
automatically be deduced by jurors.                                                                               State Supreme Court.
   Repetition also plays a role in the availability of
information for jurors because repeated informa-
tion is processed more deeply by jurors. Depth of
information processing refers to the number of
cognitive links a juror makes between a specific
piece of evidence, and other information presented
during trial, including a witness. As evidence is
processed more deeply, more links are created with
other evidence, testimony and arguments. In other
words, repeated information becomes more
centrally linked in a cognitive network of trial

4                                                             Volume 7 · Issue 3

                                    President’s Message                                     Juror’s ‘New Math:’
    Ins & Outs                      By: John Clifford                                       How Jurors Calculate Damages
                                    Drath, Clifford, Murphy, Wennerholm & Hagen               Jurors’ calculus for awarding damages is
    Grace Brandon Hollis LLP           Summer is over and before the blink of an eye, it    arguably the most idiosyncratic facet of the
      has two new associates.       will be the end of the year. It seems that with every   deliberation process. Although jurors’ haggling
      Aisha Shelton Adams           year, the days and months slide by faster and           over damages often appears to be irrational at first
      joined the firm in August     faster.                                                 blush, there is a logic underlying their methods
      to work with Graham                                                                   and the outcomes. Understanding jurors’ rationale
                                       Fall is also a time to reflect on one’s accom-       for damage awards can be most useful in deter-
      Hollis and Coleen Lowe        plishments of the year and goals for the future.
      on product liability and                                                              mining if an alternative damage presentation is
                                    This Fall is a particularly good time for reflection,   advisable or tailoring a damages argument to a
      construction defect cases.    as we approach the one year anniversary of the
      Aisha is a recent graduate                                                            jury so as to enhance its persuasiveness.
                                    horrific tragedy of September 11, 2001. As I am
      of the University of Iowa     sure you will recall, once one learned of the
      Law School and is                                                                     Individual vs. Group Dynamics
                                    horrible events, it caused us all to pause and to
      awaiting California bar       take stock in our personal and professional lives.      Individual Dynamics
      results. Eugene “Skip”        The recent passing of Thomas M. Dymott, who                Due to the spate of news coverage on high
      Shank is a new bar            was awarded the Inaugural SDDL “Lawyer of the           profile cases over the years, jurors have psycho-
      admittee who starts           Year” award in recognition of his outstanding           logically adjusted to hearing about large damage
      September 3rd. Skip is        contribution and service to the Civil Defense Bar       awards. Jurors’ individual evaluations of damages
      currently a senior engi-      of San Diego also causes me to reflect.                 are strongly affected by the figures plaintiff’s
      neer with Boyle Engineer-                                                             counsel tenders during trial. Jurors have a psycho-
      ing. He will be working          It is with those thoughts in mind that I would
                                    encourage each of our members to become more            logical latitude of acceptance for damage awards,
      principally with Thomas                                                               or a range of damage figures, they are willing to
      Byron in the defense of       proactive in both their membership within the San
                                    Diego Defense Lawyers Association and as                entertain. To the extent plaintiff does not ask for a
      design professionals.                                                                 damage figure that exceeds jurors’ latitude of
                                    practicing attorneys.
                                                                                            acceptance, many jurors will trust plaintiff’s
    CAMPBELL, SOUHRADA                 As you will hopefully recall, a little more than     damage request as a reasonable sum. Thus, many
     & VOLK announced that          year ago, the SDDL began collaborating with the         jurors use plaintiff’s damage request as an anchor
     Mr. Shawn Robinson, Mr.        San Diego Volunteer Lawyer Program to provide           for evaluating or comparing defense’s damage
     Scott Stonehocker, and         lawyer volunteers with an emphasis on elder abuse       figure, if an alternative damage theory is prof-
     Ms. Eileen Luttrell have       cases within the County of San Diego. While that        fered.
     joined the firm as associ-     program continues, the San Diego Volunteer
     ate attorneys. Mr.             Lawyer Program encompasses a broad spectrum of             Jurors’ individual assessments of damages can
     Robinson will staff the        issues, many of which involve standard represen-        vary greatly for a number of reasons. Jurors’
     San Diego Office and Mr.       tation of clients in areas of consumer fraud, civil     experiences and attitudes are the most important
     Stonehocker and Ms.            rights, and foster care. Additionally, the SDVLP        factors influencing their individual damage
     Luttrell will staff the Las    will soon be handling due process hearings for          assessments. Jury research is an effective tool for
     Vegas Office.                  special education cases involving the various           identifying jurors’ experiences and attitudes that
                                    school districts within the County. SDVLP also          differentiate punitive from non-punitive jurors. By
    John C. Pytel has recently      provides clinics and needs volunteers to assist         using jury research to identify the decision path
      joined Koeller, Nebeker,      those in need of legal guidance. I would strongly       jurors follow to arrive at their damage awards,
      Carlson & Haluck as an        encourage each of you to become involved. Please        defense counsel can better plan a strategic re-
      associate in the San Diego    contact Jerry Polansky at the SDVLP. He can be          sponse to overcome jurors’ tendencies.
      office. John’s practice       reached at (619) 235-5656, ext. 113.                       Although there is not a single set of defining
      focuses on insurance             I would also encourage our membership to             experiences or attitudes that characterize punitive
      coverage disputes and         become active in the San Diego Defense Lawyers.         jurors across all cases and venues, several trends
      complex, multi-party          We will soon be requesting nominations for board        have emerged from our research. Jurors who have
      construction defect           membership for 2003, and I would strongly               experienced a recent trauma in their life (e.g.,
      litigation. John earned his   encourage individuals to participate with the           divorce, separation, loss of a loved one, victim of
      undergraduate degree          wonderful individuals who are currently on the          crime) tend to be more punitive than their peers
      from the University of        board to keep this a great organization for the         who have not had similar experiences. In addition,
      Wisconsin-Madison and         benefit of civil defense lawyers in San Diego.          jurors who perceive that they have been victims of
      his J.D. from USC Law                                                                 some injustice, whether at work or in another
      School.                          In closing, I hope you enjoy a wonderful fall and    context, are likely to be more motivated to award
                                    I look forward to seeing you at upcoming SDDL           higher damages than other jurors.
                                    events, including
                                    the golf tournament                                        Jurors’ personalities also exert a substantial
                                    to be held later this                                   influence on their desire to award damages. Jurors
                                    month, as well as                                       with an authoritarian personality are more likely
                                    the Moot Court                                          to be punitive than jurors having a different
                                    Competition to be                                       personality type. Individuals with an authoritarian
                                    held in October,                                        personality have a low tolerance for mitigating
                                    and our continuing                                      circumstances or ambiguity and a rigid adherence
                                    legal educational                                       to social hierarchies. As a result, jurors with a                        seminars.
                                                              Volume 7 · Issue 3                                                                 5

high authoritarian personality believe that devia-     Trends
tions from the rules of expected behavior (indi-          We have observed a number of trends in how            THE BOTTOM LINE
vidual or corporate) should be punished. Jurors        jurors factor in a variety of issues during their
high in dogmaticism are very similar to those high     deliberations. Although the court rarely allows
in authoritarianism, but are more apolitical. They                                                              Case Title: Gabriel Rosas,
                                                       jurors to hear arguments regarding the role of
perceive issues and people in ‘black and white’                                                                   Mary-Bell Rosas, as
                                                       workers’ compensation, insurance, and fees in
with no shades of gray.                                                                                           husband and wife; Linda
                                                       plaintiff’s damage requests, some good defense             Torres, an individual;
                                                       jurors raise these factors during deliberations in an
Group Dynamics                                         effort to hold damages down. By contrast, plain-           Wanda J. Filbin, an
   Two psychological processes affecting jury                                                                     individual; Elizabeth E.
                                                       tiff-oriented jurors have been inflating damage
damage awards during deliberations are the                                                                        Shick, an individual;
                                                       awards because they believe that the award will be
polarity shift and the groupthink phenomena.                                                                      Errol H. Curl, Kathleen G.
                                                       reduced when appealed. This is a relatively new
‘Polarity shift’ refers to situations in which a                                                                  Curl, as husband and
                                                       trend, whereas solid plaintiff jurors have long been
group makes a more conservative or riskier             advocating for an increase in damage awards so as          wife; George A. Pastrana,
decision than the aggregate of the individual          to ensure that plaintiff has enough money after            Maria A. Pastrana, as
juror’s decisions. There are two primary factors       contingency fees are taken out.                            husband and wife; John
that underlie the polarity shift phenomenon: (a)                                                                  Hoover, Karen Hoover, as
                                                          Sometimes jurors’ calculus for computing                husband and wife;
social comparison, and (2) persuasive arguments.       damages is nothing more than holding an auction.
Social comparison refers to the time when jurors                                                                  Josephine Silva, an
                                                       The foreperson may merely act as an ‘auctioneer ’          individual; Dana Daly, an
first begin to discuss case issues during delibera-    starting off the ‘bidding’ at an agreeable figure,
tions and they learn of the other jurors’ attitudes.                                                              individual; Josephine C.
                                                       e.g., one million dollars, and throws out escalating       Long and Kathleen A.
Jurors compare their own opinions to attitudes of      dollar amounts as individual jurors continue to
the other jurors as a means of seeing how they ‘fit                                                               Robinson, as co-trustees
                                                       agree to a higher damage figure until the bidding
in’ the group. Some jurors hold back on expressing                                                                of the Long Family Trust;
                                                       stops. It can be a most daunting lesson to observe         and Judith Marsh, an
their damage awards for fear that they may be too      one of these auctions as the damage award jumps
extreme (small or large) and would not fit in with                                                                individual v. Aztec
                                                       from one $100,000 to $5,000,000 in a matter of a
their peers. However, when jurors learn that others                                                               Homes, a business entity,
                                                       minute or two. Moreover, in a situation like this, if
in the jury advocate similar or even larger damage                                                                form unknown, Signs &
                                                       only one juror agrees to a higher figure, the
awards than they do, they become more psycho-                                                                     Pinnick, a business entity,
                                                       auction continues. In other words, the foreperson
logically comfortable with awarding more extreme                                                                  form unknown, Tom C.
                                                       does not seek to determine if all the jurors agree to
damage figures. As a result, the jurors as a group                                                                Dyke, an individual dba
                                                       each new figure thrown out for bid; rather, the
become more secure with awarding a larger              foreperson continues the auction until finally, none       Tom C. Dyke Drilling &
damage figure than they decided upon as individu-      of the jurors can support such a large damage              Blasting, a business entity,
als prior to deliberations.                            figure.                                                    form unknown, and
                                                                                                                  DOES 1 through 50,
   Persuasive arguments refer to the fact that as         Because jurors may be more concerned with               inclusive.
jurors deliberate, they hear novel arguments from      avoiding conflict than holding damages down,             Case No.: San Diego
their peers that they had not previously consid-       some juries get caught up in a feeding frenzy of           Superior Court, Case No.
ered. During deliberations jurors unveil their         awarding damages.                                          GIC749077
personal positions on the issues, evidence and            In a recent jury research project, I observed         Judge: Hon. Geary D.
testimony. As a result of hearing new arguments        several of these factors working in concert to             Cortes
from other jurors, the critical mass of jurors’        devastating effect. The foreman held an auction          Plaintiff Counsel: Patrick J.
attitudes regarding key issues increases until it      and the award jumped from $250,000 to                      Stark and James A. D’
achieves a threshold from which it is nearly           $10,000,000 in only a minute or two. Afterward,            Ambrosio, Law Offices of
impossible for jurors to overcome.                     the lone holdout defense juror sarcastically               Patrick J. Stark
   The groupthink phenomenon was so named as a         mentioned that if the jury really wanted plaintif f to   Defense Counsel: Sean T.
result of the Kennedy administration’s debates         get $10,000,00 they should award $20,000,000               Cahill of Balestreri,
over the Bay of Pigs debacle. All of the govern-       because of the attorney’s contingency fee. Not one         Pendleton & Potocki
ment officials included in the debate tended to        juror picked up on his sarcasm and the foreperson        Type of Incident: Property
think alike with very few dissenting opinions.         mentioned that it was a good idea and asked if             damage, emotional
Groupthink in a jury occurs when the jurors take a     anyone objected to going to $20,000,000. No one            distress for fear, anxiety
vote and all, or almost all of the jurors feel the     objected and in a matter of two minutes, the               and apprehension related
same way. This may effectively circumvent jurors’      damage award increased exponentially. In fact, the         to blasting operations at a
motivation to discuss the relative merits on both      award increased eighty-fold!                               nearby housing develop-
sides of the case. Few jurors want to invite attacks   Compromising With Damages                                  ment
on themselves by others because they are holding                                                                Settlement Demand:
out. The result is that jurors pay only token lip        Jurors use damages to achieve a compromise in
service to the evidence, testimony, and arguments      a number of different ways. For many jurors, the
                                                                                                                Settlement Offer: None
presented by one of the parties. Taken together,       need to get along with their fellow jurors is an
                                                                                                                Trial Type: Jury
groupthink and polarity shift account for why a        overriding consideration. To be sure, deliberations
                                                                                                                Trial Length: Seven (7)
jury’s damage award is sometimes substantially         can get very heated and personal. However, jurors
                                                       are highly motivated to maintain a civil atmo-             days
greater than the average of the individual juror’s                                                              Verdict: Defense verdict -
                                                       sphere during deliberations and will go to great
damage awards.                                                                                                    16 plaintiffs
                                                       lengths to achieve that goal - even if it means
                                                       giving a little bit more in order to reach a compro-
6                                                               Volume 7 · Issue 3

                                     Reaching a Verdict                                        effective. An alternative damage figure arms
    THE BOTTOM LINE                     Jurors frequently use damages as a bargaining          strong defense jurors with a bargaining chip they
                                     chip to gain leverage or break an impasse during          can use during deliberations to hold damages
                                     deliberations. Holdout defense jurors who will not        down. When defense has a weak case on liability,
    Case Title: Tuchscher v.                                                                   it is critical to provide defense jurors with an
      Lennar Corp., et al.           concede on liability often use damages to advance
                                     their persuasive agenda. These jurors suggest to          alternative damage theory so as to outfit them with
    Case No.: San Diego                                                                        a persuasive weapon they can use against strong
      Superior Court,                their peers that they will switch and find for the
                                     plaintiff if the panel agrees to limit damages.           punitive jurors.
    Judge: Hon. Sheridan Reed,       Plaintiff-oriented jurors frequently agree to limit          It should be noted that alternative damage
      Dept. 68                       damages so as to achieve their persuasive objective       theories should not be complex. Jurors are not
    Plaintiff Counsel: Andrew        - a win on liability.                                     motivated to understand convoluted damage
      S. Albert and Joel R.                                                                    theories. They prefer simple ‘easy to digest’
                                     Retrofitting Verdicts                                     theories with ‘tangible’ damage figures. Jurors
      Wohlfeil, Boudreau,
                                       Juries are notorious for retrofitting verdicts to fit   rarely possess the mathematical savvy to process
      Albert & Wohlfeil
                                     their damages decisions. More specifically, in            elaborate damage theories.
    Defense Counsel: John T.
                                     personal injury and product liability cases, I have
      Farmer and Dennis S.                                                                        Because jurors often use plaintiff’s damage
                                     observed numerous juries in our research find for
      O’Neill, Farmer & Case                                                                   figure as an anchor in deciding damages, it has a
                                     the defendant in terms of liability. However, when
    Type of Incident: Business                                                                 very potent effect on them. However, if plaintiff
                                     they reach the ‘bottom line’ for damages, they
      tort case involving claims                                                               seeks a sum that exceeds a critical threshold,
                                     suddenly reverse their position because they feel
      of inducing breach of                                                                    jurors often re-evaluate the plaintiff’s credibility.
                                     the plaintiff deserves some money. This is com-
      contract and intentional                                                                 Advocating an excessive damage award often
                                     mon in personal injury cases in which where
      interference with prospec-                                                               results in what is known as a ‘boomerang effect.’
                                     neither the defendant nor the plaintiff were overtly
      tive economic advantage                                                                  Plaintiff’s damage appeal then has the opposite
                                     negligent and liable for the plaintiff’s injuries.
      relating to defendants’                                                                  intended effect - jurors will actually award less
                                     Jurors harbor a need to take care of the plaintiffs
      claimed interference with                                                                damages. Recently, one of my clients was defend-
                                     in these kinds of cases. All too often my clients,
      plaintiff’s exclusive                                                                    ing an employment case in which plaintiff was
                                     have prematurely declared victory during a
      negotiating                                                                              seeking an excessive amount in damages and, as a
                                     research exercise when the mock jury finds for the
    Agreement with the City of                                                                 result, won only a very small fraction of what was
                                     defendant on liability - only to observe an abrupt
      Chula Vista to develop a                                                                 sought. To be sure, juries are not reticent about
                                     overturning the verdict because the mock jury
      127 acre multi-use                                                                       awarding large damages. However, the damage
                                     wants to take care of the plaintiff by awarding
      commercial/residential                                                                   award must be consistent with the fact pattern.
                                     some level of damages. Jurors retrofit their verdict
      project on the Chula Vista
                                     to be consistent with their desire to award some          Effects of September 11, 2001
      Bayfront with a build-out
                                     level of damages to the plaintiff.                           There are a number of schools of thought that
      value claimed at
      $587,000,000. Co-              Alternative Damage Arguments                              have emerged regarding the effects of the terrorist
      defendant City of Chula                                                                  attacks on jurors’ damage awards. The terrorist
                                        Due to the outcome of the Pennzoil-Texaco
      Vista settled before trial                                                               attacks may influence jurors’ damage awards
                                     litigation, my clients frequently want to present an
      for $850,000. Co-                                                                        differently depending on a variety of factors
                                     alternative damage figure to jurors in an effort to
      defendant, former Port                                                                   including, but not limited to the venue, nature of
                                     counter plaintiff’s counsel from exerting a
      Commissioner David                                                                       the litigation, and the characteristics of the
                                     unilateral influence on jurors’ damage awards.
      Malcolm, was dismissed                                                                   litigants.
                                     However, when defense has a good case on
      before trial on a successful   liability, defense’s alternative damage figures often        One school of thought holds that generally, the
      Anti-SLAPP motion, the         exacerbate the problems confronted by defense             terrorist’ attacks are likely to have one of two
      ruling on which is on          because they ‘cut the legs out’ from under the good       effects on juries. First, due to the tremendous
      appeal                         defense jurors. Jurors often react very negatively to     economic impact of the attacks, it is likely that
    Settlement Demand:               alternative damage figures because jurors teetering       jurors will exhibit more of a ‘team’ attitude when
      $34,000,000, reduced to        on their evaluations of liability believe that when       evaluating damages in civil cases. In other words,
      $17,000,000 before trial       defense offers a substantial sum of money while           many jurors will not view themselves on the
    Settlement Offer: $700,000,      denying liability, they are, in fact, admitting           opposite end of a political continuum from
      increased to $2,000,000        liability.                                                corporate America. They will tend to view all of
      before trial                                                                             America, corporate and consumer, as a team that
    Trial Type: Jury                    Alternative damage figures frequently raise the
                                                                                               must hang together in these most turbulent times
    Trial Length: 5 weeks            persuasive hurdle too high for strong defense
                                                                                               if we are to pull ourselves out the economic mess
    Verdict: $2,200,000, subject     jurors to overcome. It causes defense-oriented
                                                                                               that was created in the wake of the attacks. Thus,
      to post-trial motion for       jurors to think that the defense has doubts about its
                                                                                               rather than juries having an ‘us versus them’
      offset of City’s $850,000      own case. As a result, the defense runs a risk of
                                     paying damages in a case in which it may have             attitude when evaluating corporate America, they
      settlement.                                                                              are more likely to be motivated to protect corpo-
                                     prevailed on liability. Rather than presenting an
                                     alternative damages theory in a close case, defense       rate America. Jurors are keenly aware of just how
                                                                                               fragile the economy is; many of them have
                                     is best served by attacking plaintiff’s theory during
                                                                                               personal experience with layoffs resulting from the
                                     cross-examination of its experts.
                                                                                               downturn in the economy due to the attacks. Jurors
                                        Conversely, in cases in which defense is               may still award damages, but be less punitive in
                                     handicapped by a weak case on liability, an               the amount they award. Thus, jurors may be more
                                     alternative damage presentation can be very
                                                                Volume 7 · Issue 3                                                                  7

willing to try to be fair to defense so as not to push   TREATING PHYSICIANS:
a corporation over the financial brink and exacer-       Potential Scope of Trial Testimony
bate the already poor economic situation.                By: Lynde Selden III, Esq., Neil,
   Jurors are also likely to view personal injury,       Dymott, Perkins, Brown & Frank
medical malpractice, and products liability cases           Expert testimony is
in a similar light. Jurors may use the horrific          defined in California
images of the carnage caused by the attacks as an        Evidence Code Section 801
anchor for evaluating plaintiffs’ damage claims. If      as: opinion testimony
jurors do use the aftermath of 9/11 as an anchor         related to a subject matter
for evaluating pain and suffering, many plaintiffs’      “sufficiently beyond the
damage claims are likely to be perceived as far less     common experience”, based
severe than the catastrophic loss experienced by         upon information within the
the Americans killed or injured in the attacks.          special training, knowledge,
Indeed, jurors may minimize damage awards                skill, experience, or education
when compared with the atrocities perpetrated on         of the testifying witness, and
innocent people on September 11, 2001.                   could assist the trier of fact. Based upon
   A second reaction that is likely is for jurors to     this definition, its seems implicit that a treating       THE BOTTOM LINE
become more polarized or extreme in their damage         physician, a person clearly trained in a particular
awards. Although some many jurors may be more            field of medicine, should be able to provide an
forgiving of corporate infractions following             expert opinion. As it turns out, this implication is      Case Title: Marcello
September 11th, if jurors sense that a corporate         born out by the case law.                                   Hernandez, an Individual,
entity intentionally violated a standard of conduct,     California Code of Civil Procedure Section 2034             and Guardian ad Litem
they may very well become more punitive toward           delineates between treating physicians and                  for minors Marcella
the transgressor then they otherwise would have          retained experts implying both may offer expert             Hernandez and Marcello
been prior to September 11th. In other words, if         opinions.                                                   Hernandez Jr.; Maria
jurors perceive that someone on the ‘American                                                                        Hernandez, an Individual;
team’ is taking advantage of another ‘American              CCP Section 2034(a)(1) requires parties to a
                                                                                                                     and the estate of Rosalva
teammate’ jurors are likely to take it upon them-        lawsuit to exchange the names and addresses of
                                                                                                                     Hernandez, Deceased vs.
selves to sanction the corporate transgression           any person from which a party intends to elicit an
                                                                                                                     Lawrence W. Schenden,
severely. In an already bleak economic situation,        expert opinion as evidence at the time of trial.
jurors are not likely to sit idly by while a ‘corpo-     Importantly, 2034 (a)(2) delineates between any
                                                                                                                   Case No.: San Diego
rate teammate’ takes advantage of one of an              person who will offer an expert opinion at the time
                                                                                                                     Superior Court, GIC
already suffering citizenship. This unpatriotic          of trial and an expert who will testify from a party
behavior is likely to draw the ire of jurors more so     that is “an employee of a party” or “retained by a
                                                                                                                   Judge: Honorable Frederic
than it would have prior to the attacks.                 party.”
   It is difficult to project how long jurors will be       Section 2034, subsection (f), describes differing      Plaintiff Counsel: Joseph G.
influenced by the images of 9/11. The fear of            procedures for the exchange of information                  Maiorano, Esq., Maxine
future attacks, and the role of the media in keeping     regarding experts dif ferentiating between those            D. Kersh, Esq.
the images in front of the public are likely to make     who have been retained, as in Section 2034(a)(2),         Defense Counsel: Daniel S.
the effects of 9/11 linger in the minds of jurors for    or others, as in Section 2034(a)(1). Specifically,          Belsky, Esq., Belsky &
a while. Jury research has long been an invaluable       2034(f)(1)(A) requires a party to set forth the             Associates
tool in revealing jurors’ reactions to case themes,      name and address of any person who may offer an           Type of Incident: Medical
witnesses, and evidence. Given the uncertainty of        expert opinion at the time of trial while subsection        Malpractice/wrongful
jurors’ reactions to 9/11, the need for jury research    (f)(2) requires, if this expert is a retained expert as     death
greater than ever.                                       in Section 2034(a)(2), the expert witness list be         Settlement Demand:
                                                         accompanied by a declaration from a party’s                 Plaintiffs’ settlement
                                                         attorney providing qualifications, general sub-             demand before trial was
                                                         stance of proposed testimony, an affirmation that           $500,000
Both The Path to Justice: How Jurors Process             the proposed expert will agree to testify at trial, an    Settlement Offer: Defen-
Information and Juror’s ‘New Math:’ How                  affirmation that the proposed expert is familiar            dant made a CCP §998
Jurors Calculate Damages were reprinted with             enough with the case enabling him to render a               offer for zero dollars and a
permission by DecisionQuest. For further                 meaningful opinion, and a provision of the                  waiver of costs
information, please visit          expert’s hourly rate. Simply put, a treating              Trial Type: Jury
or contact Dr. Allan Colman at 1-877-8DECI-              physician is not regarded as a retained expert as         Trial Length: 5 days
SION. DecisionQuest is a nationally recognized           defined in Section 2034(a)(2). (Schreiber v. Estate       Verdict: Defense (12-0)
trial consulting firm. DQ consultants have               of Kiser (1999) 22 Cal.4th 31, 37; Huntley v.
provided creative thinking and strategic                 Foster (35 Cal.App.4th 753-754, 756; Hurtado v.
solutions to counsel in more than 10,000 high-           Western Medical Center (1990) 222 Cal.App.3d
risk engagements. They are experts in the art of         1198, 1202-1203.) But beware, the Second
persuasion - offering strategy and theme                 District recently ruled that treating physicians
development, witness evaluation and prepara-             listed in the expert exchange as simply “all past or
tion, demonstrative exhibits, jury profiling and         present examining and/or treating physicians,”
selection, litigation public relations, CaseSoft         without at least a name identification of the
products, and courtroom technology.                      intended experts, was insufficient compliance with
8                                                            Volume 7 · Issue 3

                                   the “letter or the spirit” of CCP section 2034,         The New Calderon Process: 60 Days
    THE BOTTOM LINE                resulting in the exclusion of the physicians’           Later
                                   testimony at trial. (Kalaba v. Gray, supra at pp.       by: Timothy J. Grant of Fredrickson,
                                   1418, 1423; Cal. Civ. Proc. Section 2034 (a)(1);        Mazeika & Grant
    Case Title: Marshall v. The    Cf. Schreiber v. Estate of Kiser, supra at p. 31
      Baldwin Company,      [Treating physicians were listed in the CCP                The new Calderon Process has
    Case No.: San Diego            section 2034 designation placing defendants             brought subcontractors, design
      Superior Court, GIC          on notice].)                                            professionals, and their
      725825                                                                               liability carriers into the
    Judge: Honorable Kevin A.      Extent of Opinions permitted by Treating                pre-litigation negotia-
      Enright                      Physicians:                                             tion and discovery
    Plaintiff Counsel: Stephen        A non-retained treating physician may testify at     process. Enacted in 1996, Civil Code § 1375
      M. Strauss, Procopio,        trial as both a percipient treating physician and       created what is commonly known as the Calderon
      Cory, Hargreaves &           may also offer opinion testimony. A treating            Process. Its scope was, and still is, limited to
      Savitch                      physician is distinguished from a retained expert       construction defect claims arising in “common
    Defense Counsel: Nanette       by the context in which he learns the facts of the      area” developments. These multi-family unit
      Souhrada of Campbell,        case, not the content of his testimony. (Schreiber v.   projects seemingly went out of favor in the mid-
      Souhrada & Volk              Estate of Kiser, supra at pp. 35; Hurtado v.            1990’s with Southern California developers, who
    Type of Incident: Construc-    Western Medical Center, supra at pp. 1203.)             instead focused on more profitable single family
      tion Defect                  Accordingly, as long as the treating physician has      home developments. However, now that the
    Settlement Demand: $1.9        not gained the information from which her               Southern California real estate market is at one of
      million                      formulates his observations or opinions from the        its highest levels, more and more common area
    Trial Type: Jury               party calling him, but rather within the context of     projects are being built to meet the demand for
    Verdict: Defense (12-0)        the treatment he has provided, an expert treating       affordable housing. Therefore, while the Calderon
                                   physician may express both fact and opinion             Process typically has no impact on single family
                                   testimony. (Schreiber v. Estate of Kiser supra at       home developments, there is an entire new
    Case Title: Harper v. Hard     pp. 35-36.)                                             inventory of projects now being built which will be
      Rock Hotel, et. Al.             As the court states in Schreiber “[A]s to any        impacted by the Calderon Process in the near
    Case No.: Clark County         opinions formed on the basis of facts indepen-          future.
      Superior Court, A395208      dently acquired and informed by his training,              The intent of the Calderon Process was to
    Judge: Honorable Ron           skill, and experience.…[a treating expert’s             decrease the number of construction defect cases
      Paraguirre                   testimony] may well include opinions regarding          filed in the court system, and to therefore signifi-
    Plaintiff Counsel: Robert      causation and standard of care because such issues      cantly reduce the costs to the construction and
      A.Winner, Barker, Brown,     are inherent in a physician’s work.” (Id. at pp. 39)    insurance industry of construction defect claims
      Busbie, Chrisman &           This revelation indicates that it is imperative that    which plagued both industries. However, the
      Thomas                       at the time of the deposition of a treating physi-      original Calderon Process mandated only the
    Defense Counsel: William P.    cian, the party deposing the witness must deter-        inclusion of the HOA and the developer. The
      Volk and A. David            mine the basis upon which the witness has formed        subcontractors and design professionals potentially
      Mongan of Campbell,          any opinions or observations and whether or not         exposed to the developers’ formidable indemnity
      Souhrada & Volk              he or she will be expressing any causation or           claims were notably absent, as were those parties’
    Type of Incident: Personal     standard of care opinions. It should be noted that      liability insurance carriers. The absence of these
      injury, slip and fall.       if, at the time of their deposition, the treating       parties from the process doomed the Calderon
      Plaintiff walked past “Wet   physician in question has not reviewed anything         Process from the start because rarely was a
      Floor” sign, slipped and     other than his own records or independent               developer (or its insurance carriers) willing or able
      hurt knee. Plaintiff is a    research, and a question is posed asking for an         to settle with the HOA and then sue the subcon-
      hemophiliac who alleged      opinion with respect to standard of care or             tractors and design professionals for indemnity.
      injury created need for      causation, the ubiquitous objection “calls for an       The recent amendment of Civil Code § 1375 and
      genetically engineered       expert opinion” is mostly hot air as this objection     the enactment of Civil Code § 1375.05, both of
      product which facilitates    is clearly unsupported by the law (although it may      which became effective July 1, 2002, were the
      clotting and costs thou-     prompt the witness to reconsider offering an            Legislature’s answer to these perceived shortcom-
      sands of dollars per         opinion).                                               ings in the Calderon Process.
      ounce. Plaintiff alleged
      need of 3-4 doses per        Bottom Line with Treating Physicians                       The insurance carriers potentially included in
      week.                        as Experts:                                             the new Calderon Process are AI carriers, primary
    Settlement Demand: $ 1.7                                                               and excess carriers, even primary or excess
                                      1) Put the names and addresses (if possible) of      carriers who have taken a position of “no cover-
      million plus $400,000 in     treating physicians in the expert designation;
      attorney fees                                                                        age.” Within 100 days of the HOA’s first notice to
    Settlement Offer: Offer of        2) Take the deposition(s) of any treating            the developer, all parties theoretically could be
      Judgment for $10,000         physician(s) plaintiff has listed in their designa-     joined, a special master selected, and a CMO
    Trial Type: Bench              tion (if not already done)                              adopted. The initial 180 day term, combined with
    Verdict: Defense                  3) Ask the treating physician(s) in their deposi-    another added 180 days without unanimous
                                   tions what they have reviewed and whether or not        consent of all parties, has remedied the problem of
                                   they have formed an opinion as to standard of           only a 90-day term. (Some may argue that the
                                   care, causation or damages.                             longer term merely provides the developer even
                                                                                           more opportunity to incur recoverable costs and
                                                                 Volume 7 · Issue 3                                                             9

                 fees without the trades being able to       Finally, from both the viewpoint of the insured
                 make a CCP § 998 Offer.) In any          and the carrier, given the punitive effect of a
                 case, with the punitive provisions       party’s failure to “timely” participate, of special
                 of the newly enacted Civil Code §        concern is whether a given carrier is an “Insurer,”
                 1375.05, the new process promises        and thus required to comply with the procedures of
                 to finally provide a means to            the Calderon Process. The description provided in
                 enforce participation and compli-        the statute of the term “Insurer,” whose participa-
                 ance of all parties concerned. Those     tion is required under the Calderon Process is as
              punitive measures which can be taken        follows:
        against a party for it’s failure to timely           “insurers, and the insurers of any additional
  participate in the Calderon Process include the         insured... whose potential responsibility appears
following:                                                on the face of the notice...” Civil Code 1375(e)(2).
   - Waiver of right to select the special master or         That broad scope is further described as                  SDDL Officers
challenge its appointment;
                                                             “all insurance carriers, whether primary or
   - Bound by the amount of any settlement                excess and regardless of whether a deductible or                President
reached; and                                              self-insured retention applies, whose policies were         John R. Clifford
   - Waiver of right to conduct or participate in site    in effect from the commencement of the construc-             Vice-President
testing or inspection.                                    tion of the subject project to the present and which         Peter S. Doody
   For several months now, my partner, Billie             potentially cover the subject claims.” Civil Code
                                                          1375(e)(2)(A)                                                   Secretary
Jaroszek, and I have been spreading the news                                                                            Dennis Aiken
about the new Calderon Process to subcontractors,            Based on the broad scope of the given definition
carriers and TPA’s in Southern California. The            for the term “Insurer,” the term “Insurer” would                Treasurer
carriers we have visited have raised concerns             appear to include any carrier which has issued a          Anna T. Amundson
about how the claims process is to be staffed, and        CGL policy to, or an additional insured endorse-                Directors
what role counsel will play in the process. This is       ment in favor of, any Developer entity, Subcon-           Robert E. Gallagher
especially problematic in instances where the             tractor or Design Professional, when such policy           Clark R. Hudson
carrier views their defense obligation to be              imposes upon the carrier a potential duty to defend        Billie J. Jaroszek
triggered by the service of a “complaint” against         the insured or indemnify the insured or additional          Coleen H. Lowe
its insured. In that same vein, the trades raise the      insured (AI) for losses resulting from the type of         Timothy D. Lucas
concern about their mandatory early involvement,          claims of alleged defects identified in the Initial        Norman A. Ryan
which will force subcontractors to retain counsel at      Notice. This would include primary as well as             Christopher J. Welsh
a much earlier time. If a subcontractor cannot be         excess policies, and regardless of whether a
released from the process, is not deemed a                deductible or self-insured retention applies.
peripheral party, and its insurer will not defend it
without a complaint, how is it to adequately                                                                     THE BOTTOM LINE
defend itself or participate in any settlement
without depleting its own precious resources?
   The yet to be proven benefits of the new process                                                              Case Title: Phillip Baum vs.

                                                             Thank You
also come with a high cost to the trades. The                                                                      J. Byron Wood, M.D.
subcontractors must now share the costs of the                                                                   Case No.: GIN 014084
process, even if they potentially have only a small                                                              Judge: Marguerite L.
amount of liability for the claimed defects. While                                                                 Wagner
they always could seek designation as a “periph-                                                                 Plaintiff Counsel: Christine
eral party,” they will still be required to participate                                                            A. Carlino of Law Office
to some extent and share the costs of the special                                                                  of Christine A. Carlino
master. The nature and extent of destructive                      San Diego Defense Lawyers                      Defense Counsel: Kendra A.
testing also will undoubtedly present an area of                                                                   Ball of Neil, Dymott,
constant dispute for the trades. Until now, the                          would like to thank                       Perkins, Brown & Frank
                                                                                                                 Type of Incident:
decision by the trades to conduct destructive                            Brenda Peterson                           Laparoscopic hernia
testing is based entirely on the nature and extent of
the testing done by the plaintiff and the developer.                of Peterson & Associates                       repair with alleged injury
Usually, especially with the strict view on extrapo-                                                               to the testicle.
                                                                         for sponsoring our                      Settlement Demand:
lation of defects now being adopted by the trial
courts, the less destructive testing conducted, the             Brown Bag Luncheon programs
better the trades’ position may be in subsequent                                                                 Settlement Offer: Waiver of
litigation. However, the trade’s failure to partici-                    held in her offices at:                    costs
pate in destructive testing during the Calderon                                                                  Trial Type: Medical Mal-
Process now may operate to waive that party’s                                                                      practice
right to conduct testing after post-Calderon                                                                     Trial Length: 5 day
                                                                    530 “B” Street · Suite 350                   Verdict: Defense
litigation commences, so the trades, their counsel,
and their insurers will be faced with a difficult           San Diego · CA · 92101 · 619.260.1069
question on how to proceed in any given case.
10                                                                Volume 7 · Issue 3

                                           It is plainly evident that an Insurer with a valid
 Membership                             policy exclusion would be exempt from participat-
                                                                                                 San Diego Defense Lawyers Mock Trial
 Information                            ing in the Calderon Process once it received the
                                        Respondent’s Notice. The above clause “all               Competition Udate
                                        insurance carriers ... whose policies ... potentially       Plans for this year’s Mock Trial Competi-
    Membership is open to               cover the subject claims” leaves a large loophole        tion are moving full speed ahead! At this
 any attorney who is prima-             in terms of whether a liability carrier needs to         time we have 16 teams confirmed from the
 rily engaged in the defense            participate. In the final analysis, should the carrier   following schools:
 of civil litigants. Member-            choose to rely on an untested Montrose-type of
 ship dues are: $ 90 for                exclusion or a “prior known loss” exclusion, it            Western State University College of Law
 attorneys in practice less             does so at its own peril if the exclusion ultimately       Hastings Law School
 than one year and $120 for             is found to not apply. The potential bad faith issues      University of San Diego School of Law
 attorneys in practice more             presented promise to open an entire new area of
 than one year. Applications            appellate review.                                          Whittier Law School
 are available on the web at               In conclusion, over 60 days after its effective         Pepperdine University School of Law                          date of July 1, 2002, few if any construction defect       McGeorge School of Law
                                        claims have been brought forward under the new             Fordham University School of Law
                                        Calderon Process. It may be that this is just the
                                        “calm before the storm,” but the more likely               Chapman University School of Law
                                        reason is that plaintiffs’ and developers’ counsel         Thomas Jefferson School of Law
                                        are still struggling with just how to most effi-           The competition will be held Thursday
                                        ciently invoke the new process. In the final             October 24th and Friday the 25th at the
                                        analysis, while the updated Calderon Process does        downtown courtrooms with the finals being
                                        address many of the perceived problems of the            held at California Western School of Law on
                                        earlier version, new questions arise concerning its      Saturday the 26th. This year’s case will be
                                        effect on the newly included parties and their           particularly interesting as it will involve
                                        insurance carriers. The next year or so should tell      legal issues arising from a bar fight! Please
                                        us whether or not we have simply traded one set of       notify Pete Doody at if
                                        problems for another, even thornier set of prob-         you are available to participate as a judge for
                                        lems yet to come.                                        this competition.

                                                                 Matt Beran of USD’s Winning Mock Trial Team
                                                           Presents Evidence at the 2001 SDDL Mock Trial Competition

    THE UPDATE is published for
 the mutual benefit of the SDDL
 membership, a non-profit
 association composed of defense
 attorneys, judges and persons allied
 with the profession as suppliers of
 goods or services.
    Views and opinions expressed in
 THE UPDATE are those of the
 authors and not necessarily those of
 SDDL. Products and services
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 and not endorsed by SDDL.
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 general interest to our membership.
 Please submit material to Clark R.
 Hudson at Neil, Dymott, Perkins,
 Brown & Frank, 1010 Second
 Avenue, Suite 2500, San Diego, CA
 92101. Phone: 619- 238-1712,
 Fax: 619- 238-1562,
Volume 7 · Issue 3            11

12                                                                                            Volume 7 · Issue 3

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