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									                                                                                                     Summer 2006

THE Verdict
S e r v i n g t h e A l a m e d a - C o n t r a C o s t a Tr i a l L a w y e r s ’ A s s o c i a t i o n s i n c e 1 9 7 0

                   The Consumer Attor neys of California and You
   In                     by Don Ernst, Legislative Chairperson

                                   -          s
                              ions      ation
                      al Decis e in Medi
               Critic Disclos
                      to         JAMS
          and  W hat l Ranahan,
    W hen            hae
              by Mic
                                                                                MEDIATION B
                                                                             by Todd A. Walbu
                                                                                              rg, Esq.

                                                       N: THINK
                                                                 ING DEEP
                                                      A Perspe           ER
                                                    b      y Richard P


    • Mark Your Calendars: ACCTLA’s Annual Judges’ Night will be held on Thursday, January 11, 2007, at the
    Oakland Marriott Hotel. Invitations and details will follow.

    • Become a sustaining member and reap the benefits! They include free admission to Judges’ Night and the
    What’s New in Tort & Trial seminar. See page 23 for the tear-out Year 2006 Dues Notice.

    • Become a mentor or use ACCTLA’s mentoring program. Both will help you become a better lawyer.
    Contact ACCTLA Executive Director Pat Parson at (510) 538-8286 or see page 7 for more details.

    • Publish your firm’s recent news or successes in The Verdict. Contact Pat Parson at (510) 538-8286.

    • Membership also entitles you to a listing in, and receipt of, ACCTLA’s Membership Directory, a complete list
    of all members of our organization.

    • Benefit from the experience and advice of other members by participating in the LISTSERV!

                      Sp encer
                                  Investigations                 Serving Bay Area Attorneys since 1996

                                Effective • Economical • Ethical
          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

                                                 (510) 593-3767
                                           Established 1996, CA PI License 18828

2                                                                                                           Summer 2006
                                                           THEVerdict                                                  Summer 2006



                                                 From the “Guest” President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
                                                 The Consumer Attorneys of California and You
                                                 Don Ernst, Legislative Chairperson

                                                 Member News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


                                                 Critical Decisions: When and What to Disclose in Mediations. . . . . . . 8
                                                 Michael Ranahan, JAMS

                                                 Powerful Mediation Briefs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
                                                 Todd A. Walburg, Lieff, Cabraser, Heimann & Bernstein, LLP

                                                 Mediation: Thinking Deeper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
                                                 A perspective by Richard Phelps

  Balamuth Designs
  Kathleen Balamuth

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

The Verdict                                                                                                                                           3
                                                                                                                        FROM THE
                                                                                                               ‘GUEST’ PRESIDENT

            The Consumer Attorneys of California and You
                                                By Don Ernst, Legislative Chairperson

T  he CAOC leadership team is making
   it our mission to strengthen the ties be-
tween CAOC and local TLA organizations.
                                                respective TLA’s on all issues, including
                                                those areas that individual members would
                                                like to see addressed in the legislature.
                                                                                                 • AB 192 (Tran) would have limited the
                                                                                                 liability of public entities in actions for
                                                                                                 injury to $250,000 per individual or
CAOC benefits individual practitioners             While I would love to explain in detail       $500,000 per occurrence under the
through statewide education seminars, a         each of the above-mentioned benefits, I          Governmental Tort Claims Act. (Defeated)
strong lobby team in Sacramento protect-        think in this guest column, I will share
ing your rights and the rights of your          with you how the CAOC legislative team              These are just a few examples of the
clients, leadership in defending against        protects you. During the current legisla-        types of tort reform bills introduced this
tort reform initiatives that affect your        tive session 3,526 bills were introduced         session that our legislative team defeated
practice, a political action base to elect      and our team in Sacramento reviewed              to protect you and your clients. Scores of
legislative candidates that support a fair      each one to assess its possible impact on        tort reform bills are introduced every year,
justice system and the right to a jury trial,   your clients or your legal practice. They        and we can expect the attacks on our
and the refreshing camaraderie of spend-        monitored 941 of those bills and actively        system of justice to continue. Our past
ing time with others who share your views       worked on 192. The simple math equates           successes with proactive legislation include
of the justice system and understand the        to nearly one-quarter of the pieces of           the two-year statute of limitations and
pressures and stresses of your day to day       legislation could have effected your busi-       the 75-day time requirement for summary
life. Additionally, CAOC membership             ness. Legislation like:                          judgment motions.
benefits include access to the California                                                           The key to success or failure of our
College of Trial Arts, 11 statewide list        • SB 312 (Ackerman) would have made              legislative presence in Sacramento depends
serves, and the Civil Justice Research &        an exception to the requirement that             on having 41 votes in the Assembly and
Education Project. You can learn about          notice of a summary judgment motion              21 votes in the Senate. If we do not have
these and other CAOC projects and ben-          will be served on all parties at least 75 days   those votes, we can expect tort reform.
efits at the CAOC Web site: www.caoc.           before the time appointed for hearing.           Term limits have complicated this process
com or             (Defeated)                                       with a steady stream of new legislators
    I firmly believe that we can all benefit                                                     every 2 years. Often, the only experience
                                                • AB 355 (Tran) would have effectively
by strengthening the connections and                                                             the new legislators have is from their work
                                                eliminated joint and several liability
communication between local TLA’s and                                                            on city councils or county boards where
                                                in actions against public entities.
CAOC. Every single TLA member who                                                                they were faced with lawsuits against the
is not a member of CAOC should join                                                              public entities. Some have skewed views
today, and every CAOC member should             • AB 526 (Harman) would have allowed             of the tort system. It is a constant edu-
join and participate in his or her local TLA.   insurers to further restrict uninsured           cation process, and our legislative team
CAOC is seeking input and additional            motorist coverage in auto cases.                 spends a great deal of time in this
communication from members or their             (Defeated)                                       effort.

4                                                                                                                            Summer 2006
                                                                                                  Alameda-Contra Costa Trial Lawyers’ Association
                                                                                                    1884 Knox Street • Castro Valley, CA 94546
    The future of the legislature is so           to serve. We are pleased to announce four                        510.538-8286
important that all our lobbyists, as well         of the five Assembly candidates CAOC
as leadership, meet with potential politi-        viewed as posing some risk to the tort                             Officers
cal candidates to explain what CAOC does          system were defeated and will not be                      Stephen H. Cornet, President
                                                                                                            Julia Sherwin, President-Elect
to protect the civil justice system and the       entering into the Assembly in 2007.                        Elise Sanguinetti, Secretary
consumers of California. Eventually,              Additionally, six knowledgeable lawyers                    Michael Haddad, Treasurer
CAOC backs those candidates who sup-              were added to the ranks in the Assembly
port a fair justice system and the right to       bringing the total number of lawyers in                     Executive Director
                                                                                                                   Patricia Parson
a jury trial. CAOC endorses and financially       the lower house to 16.
supports those candidates in races where              CAOC had three significant wins in                      Board of Governors
our time, effort and money hopefully can          the State Senate races. In the 28th District,    Steven J. Brewer          Thomas G. Lewellyn
make a difference. In the June 2006 pri-          Assembly Member Jenny Oropeza                    Lyle C. Cavin             John F. Lewman
mary election, there were 36 open seats           defeated former Assembly Member                  Petra DeJesus             Micha Star Liberty
                                                                                                   A. Charles Dell’Ario      Alexis McKenna
with nearly 100 candidates running for            George Nakano, a former member of the            Steven L. Derby           Thomas G. McLaughlin
those seats. The stakes were enormous.            business caucus. In the most closely             Simona Farrise            Richard Phelps
Indeed, the ability of the everyday citizen       watched primary in the state, former             Vernon C. Goins           G. Judson Scott, Jr.
                                                                                                   Robert B. Gray            Joseph Tomasik
to obtain justice from the tort system is         Assembly Member Ellen Corbett defeated
                                                                                                   Gordon D. Greenwood       Christopher Viadro
at risk every election cycle, affecting all       former Assembly Member and Business              Jo Ann Kingston                 .
                                                                                                                             Jim W Yu
Californians and the lawyers who represent        Caucus leader, John Dutra in the 10th
them, including you.                              District. In the 8th District, Assembly                       Past Presidents
    The results of the recent primary elec-                                                       Peter Alfert               Steven Kazan
                                                  Member Leland Yee won a three-way
                                                                                                  Bryce C. Anderson          Michael J. Markowitz
tions were important. The decisions about         contest over former business caucus             Kelly Balamuth             David McClain
what races and candidates to support were         member Lou Papan. Even so, the senate           Richard J. Baskin          Patrick J. McMahon
often difficult as friends ran against friends.   will be a somewhat more conservative            Richard D. Bridgman        Anthony Petru
                                                                                                  Brian P Evans              Paul L. Rein
The organization limited its participation        body, as three additional business-friendly     Daneen C. Flynn            Eric Schnumacher
to those races where a clear choice existed       candidates were also elected. Senate Judi-      William Gagen, Jr.         Robert G. Schock
between candidates who share CAOC’s               ciary Chair Joe Dunn is also termed out.        William D. Gibbs           Aaron Simon
                                                                                                  J. Gary Gwilliam           Richard J. Simons
values and those who do not. CAOC                     All these variables reinforce how our
                                                                                                  John Hallbauer             Scott H.Z. Sumner
showed five wins in the Assembly races            lobby team in Sacramento adapts to a            Molly Harrington           John M. Starr
where we worked to impact the outcome.            constantly changing political landscape         David Hicks                Leroy F. Vadney
                                                                                                  Peter J. Hinton            R. Lewis Van Blois
In many districts, candidates with favor-         by developing and fostering ongoing
                                                                                                  Eric H. Ivary              William F. Whiting
able views of the tort system faced an            relationships with like-minded groups,
enormous onslaught of corporate spend-            such as the California Nurses Association,
ing against them through independent              the Sierra Club and labor groups. Our
expenditures, for which there are no              lobbyists are also adept at creating other
                                                                                                               THE      Verdict
                                                                                                     A publication of the Alameda-Contra Costa
spending limits. In spite of that, CAOC           beneficial alliances with groups that nor-                 Trial Lawyers’ Association
is pleased to report the Assembly will be         mally would not work with us. Last year                           - Since 1970 -
significantly more consumer/civil justice         CAOC co-sponsored a hospital lien bill
                                                                                                               Verdict Committee
friendly.                                         (SB 399-Escutia) with the California
                                                                                                            Micha Star Liberty, Editor
    Nine members of the business caucus           Medical Association. Although this par-               Liberty Law Office • 415.896-1000
were termed out of office and/or vacated          ticular bill was vetoed by the Governor,
their seats. In at least three, and possibly      the ability to form both types of alliances        Advertising, Design and Production
five, of those seats more progressive,            is further example of our legislative team’s            Young Design & Production
consumer friendly candidates were elected         effectiveness in Sacramento.                                  925.229-2929

The Verdict                                                                                                                                         5
                                                                                      CAOC also serves as the point organi-
                                                                                  zation for defending against all tort reform
                                                                                  ballot initiatives. Currently in 2006, the
                                                                                  efforts of our lobby team, leadership and
                                                                                  political advisors eliminated two statewide
                                                                                  initiatives filed against consumer attorneys
                                                                                  and the clients they represent (punitive
                                                                                  damages and construction defects). Our
                                                                                  lobbyists and staff are now preparing for
                                                                                  the general election as well as monitoring
                                                                                  all bills currently working through the
                                                                                  legislature. The professional lobby team
                                                                                  is one of the best values you as a practi-
                                                                                  tioner have. This team protects you, your
                                                                                  clients and the citizens of this State. Its
                                                                                  value cannot be overestimated.
                                                                                      As trial lawyers, we fight the good fight
                                                                                  every day on behalf of our clients. Similarly,
                                                                                  CAOC fights the good fight for us in the
                                                                                  Capitol every day by preserving a level
                                                                                  playing field for the fair administration of
                                                                                  justice. This fight is our fight, and I invite
                                                                                  you to become a member of CAOC today
                                                                                  and be part of this important effort. Come
                                                                                  meet our staff at our annual convention
                      ACCTLA Mentoring Program                                    to be held at the La Costa Resort and Spa
                                                                                  November 16 – 19, 2006. I also want to
    Take advantage of ACCTLA’s Mentoring Program to improve the                   personally put in a plug for our Hawaii
                                                                                  Seminar at the Kea Lani on Maui, sched-
    quality of litigation in our courts. Attorneys who call will be referred to
                                                                                  uled for November 15 – December 2,
    a mentor attorney for free consultation. The mentor will not prepare
                                                                                  2006. It is my personal favorite. It is an
    your case but will assist you in your approach to the case. This program      excellent travel value, with five-star hotel
    is not just for newer attorneys, but also is available for seasoned           accommodations, a great negotiated rate,
    practitioners who run into problems or simply want to bounce ideas off        and wonderful seminars. Lastly, let us
                                                                                  know your thoughts. If you have any
    another seasoned practitioner. The mentors are all ACCTLA members,
                                                                                  legislative suggestions or just want to
    with varied degrees of experience in varied areas of the law. Whether
                                                                                  communicate, drop a line to our executive
    your concerns are Motions in Limine, jury selection, problems that arise      director Mike Reyna at Mreyna@caoc.
    during trial or issues relating to proposed instructions, or questions        org or to me at We need
                                                                                  and want your help.
    involving any of the earlier stages of litigation.

    Please call ACCTLA Executive Director Patricia A. Parson at                   — Don Ernst, a partner in Ernst & Mattison
    (510) 538-8286.                                                               since 1980, has tried over 100 cases to verdict.
                                                                                  He was awarded the CCTLA Trial Lawyer
                                                                                  of the Year in 1998 and 2002.

6                                                                                                                Summer 2006
                          Alameda-Contra Costa Trial Lawyers’ Association

                             Annual Cocktail Party

                        All ACCTLA members, Superior Court Judges and
                Commissioners from Alameda County and Contra Costa County,
               Appellate Justices, Northern District Federal Judges Magistrate Judges
                                and their guests are invited to attend

                   Friday, September 15, 2006
                                          5:00 – 7:00 p.m.

                                Oakland Marriott
                                        1001 Broadway, Oakland
                                        A. J. Topper’s, 21st Floor

                                Please join us for wine, beer, soft drinks
                                 hors d’oeuvres and a live jazz ensemble

                                Please RSVP by September 12 to:
                 Pat Parson, ~ or ~ 510-538-8286

      If you are not a member of ACCTLA, contact Pat Parson for an application, or pay dues at the door.

The Verdict                                                                                                7
    Critical Decisions

When and What to Disclose in Mediations
                                                          By Michael Ranahan

Virtually every case that goes to trial first   cannot settle the case, do nothing to          purpose of clarity. The majority of medi-
goes through a mediation, or two, or three.     adversely impact your trial tactics.           ations take place early in the discovery
During nearly every one of those media-            This article will explore utilizing using   phase, before expert depositions have been
tions, one side or the other debates itself     the mediation process to your best advan-      taken and reports exchanged, and often
over how much information to disclose           tage while preserving your trial tactics       before some of the key witnesses have
and how far to go in revealing their trial      and strategy. The discussion will focus on     been deposed. The parties may have
strategy. Mediations can present a quan-        the wisdom of disclosing (or not disclosing)   interviewed witnesses, retained experts,
dary for trial attorneys who want to reveal     information which may tip your hand as         and gained insights to their expected
enough information about their case to          to your overall trial strategy or provide      testimony, but by the time the mediation
give ample opportunity to settle, yet not       your opponent insight regarding the            occurs, their testimony and opinions have
hand over all their information and strat-      evidence you may present at trial. This        yet to be disclosed or memorialized, much
egy, such that if the case does not settle,     article does not address, however, the issue   less exchanged. Yet this information may
they have not prejudiced their ability to       of whether or not, or when, to disclose        be critical to your analysis and settlement
effectively try the case.                       “smoking gun” evidence, which warrants         evaluation, and is probably information
    One common mantra among mediators           a separate discussion entirely.                you will want to utilize to either work up
is: “If nothing else, do no harm,” meaning                                                     your opponent’s offers, or draw down
that if you do not settle the case, make        THE TENSION                                    demands, depending on which side of the
sure that no party is prejudiced by going       The conflict between mediation strategy        case you are on.
through the mediation process. The same         and trial strategy, while fairly obvious,         Your best chance of settling the case
should be true of trial attorneys. If you       will nevertheless be discussed for the         in a timely and economical manner may

8                                                                                                                          Summer 2006
be at mediation and may depend on your                    ADR SERVICES, INC.                                           SM
disclosure of certain information. Yet                     DELIVERING CONSISTENT RESULTS THROUGH CREATIVE SOLUTIONS
disclosure of this information at a media-            Specialty                       Featured                    Conference
tion may provide your opponent with not                Areas                          Neutrals                     Rooms
previously disclosed information, and
more importantly, may allow them to                    Civil Rights
counter, negate, or minimize the evidence’s           Class Action
                                                  Commercial Contract
effectiveness at trial. So, how far do you         Complex Litigation
go in allowing your opponent a “peek”                 Construction
into your trial approach, strategy and/or               Elder Care
                                                    Eminent Domain
witness testimony?                                    Employment
                                                Environmental/Toxic Tort
THE SOLUTION(S)                                      Expert Witness
First it must be noted, while it is easy to            Family Law
                                                      Fee Disputes
identify the tension which exists between               Franchise
the mediation and preserving trial tactics,         Health Coverage
                                                Homeowners’ Association
it is a far more difficult chore to determine           Insurance
                                                  Intellectual Property
how to best address the tension. There is           Legal Malpractice
no “one size fits all” solution to the prob-         Lender Liability
lem, and each case must be evaluated              Medical Malpractice
individually. There are, however, several             Municipalities
                                                   Official Misconduct
key variables which can assist you in            Partnership Dissolution
                                                     Personal Injury
deciding what, when and how to disclose                  Probate          Row 1: Hon. Alfred Chiantelli, Ret.,
strategic information.                              Products Liability   Hon. Richard Flier, Ret. Row 2: Hon.
                                                  Professional Liability  Richard Hodge, Ret., Hon. Laurence
                                                       Real Estate       Kay, Ret. Row 3: Hon. David Lee, Ret.,
                                                                         Hon. M.O. Sabraw, Ret. Row 4: Hon.
Evaluate Your Opponent. As is the case with             Securities
                                                                          Alex Saldamando, Ret., Hon. James
                                                        Toxic Mold
most tactical decisions made during the               Wage & Hour          Trembath, Ret. Row 5: Eric Ivary,
                                                                              Esq., Michael McCabe, Esq.
course of any given case, your opponent’s
                                                 For More Information Or Scheduling, Please Contact:
acumen is an important factor in deciding
                                                Dorene Kanoh, Vice President
what to reveal. Not all adversaries are         50 Fremont Street, Suite 2110
created equal, so if your opponent is an        San Francisco, California 94105
extremely thorough and well-prepared            (415) 772.0900 Tel
                                                (415) 772.0960 Fax ADDITIONAL INFORMATION AVAILABLE AT WWW.ADRSERVICES.ORG
type, it may be wise to err on the side of
disclosure. A diligent opponent will either
already be aware of most of the information
you have or, will likely obtain it through                  Real Estate Law
discovery or investigation if the mediation
does not result in a settlement. Since you                            Litigation • Transactions • Leases
are less likely to surprise a diligent oppo-                       Case Referrals and Associations Welcomed
nent at trial, it may be unwise to hold back
important information during mediation
                                                             — Law Offices of David L. Roth —
                                                             One Kaiser Plaza • Suite 601 • Oakland, CA 94612
in the hope of catching them off-guard by
subsequent disclosure. Stated another way,                                       (510) 835 - 8181
if it is extremely likely your opponent is
                                                                Member CAOC/ACCTLA/ATLA • AV Rated
going to obtain the “held-back” informa-

The Verdict                                                                                                                    9
tion, doesn’t it make better sense to disclose   will be minimal. Likewise, if, for whatever     determination is relatively easy to make.
it and use it in a favorable manner, poten-      reason, it is imperative you settle the case,   If the opposing individual you need to
tially leading to settlement?                    why would you hold back information that        impress is present at the mediation, edu-
    Conversely, if your opponent is less         could help you get there? You must gauge        cating them by disclosing certain informa-
methodical, that is they react rather than       how important settlement is to your client,     tion may be the right call. If you do not
act, it may be tactically prudent to hold        which in turn will dictate how much             sense the true decision maker is present
back information, as your opponent may           information flows from your room to your        at the mediation or readily available, any
never ascertain it or discover it timely         opponent’s.                                     information you disclose will be heard by
enough to make it useful. You must assess                                                        individuals who may not control the deci-
during the course of the mediation, the          Will Disclosure Help? The single most           sion-making process, and you should there-
prospects of settlement if you reveal the        important factor to weigh in deciding           fore be much less inclined to reveal it.
information your opponent does not yet           what information to disclose at a media-           The significantly more difficult inquiry
possess. You also need to weigh that assess-     tion is whether or not the case has a           is determining if your opponent, given
ment against the value of shielding the          realistic chance of settling. It can be enor-   certain information, has the ability to
information from your opponent until a           mously difficult to predict whether your        digest it quickly and responsibly, and
very late stage in the proceedings. Unlike       opponent wants to or is in fact ready to        utilize the information to impact their
the case with the diligent opponent,             settle. Many attorneys have experienced         evaluation of the case. In simpler terms,
you may want to err on the side of non-          failures to settle in a mediation on cases      you need to decide whether there is a
disclosure in the mediation with the             that they were absolutely convinced would       realistic chance your opponent will be
sedentary adversary.                             settle and vice versa. And many mediators       favorably influenced by your disclosure of
                                                 have stopped trying to make early predic-       information such that it could result in a
Consider Your Settlement Desire? Face it, at     tions on whether a given case will settle       settlement, or whether the information
some mediations you are really not terribly      because in most cases, you simply do not        will have little or no real impact on your
anxious to settle a case (for any number of      know until you get deep enough into the         negotiations.
reasons), and some cases you are dying to        negotiation process.                               Admittedly, the task outlined above is
settle. Most cases, of course, fall somewhere        With these qualifiers, it is nevertheless   a difficult one, as attorneys rarely admit
in between; if the other side makes your         important to get a sense as to whether          to their opponent that they would be
client a good enough settlement proposal,        your opponent is ready, willing, and able       significantly influenced by one piece of
you will recommend it be accepted. It is         to settle before deciding what information      information or another. This is where you
pretty obvious if your interest in settlement    to disclose. The “able” part is a function      use the services of your mediator. If you
is only lukewarm, i.e., your client is not       of whether the right people, the “decision-     are inclined to consider disclosing private
interested in compromising very much,            makers,” are either at the mediation or         information or your trial strategy, send
your inclination to disclose information         minimally available by telephone. This          the mediator on a fact-finding mission

                                                                        Would you like to be published?

                                                         Publication in The Verdict is excellent exposure. Our readers are
                                                          most interested in issues surrounding plaintiffs’ personal injury,
                                                                    family, appellate, criminal and/or business law.

                                                           If you are interested in submitting an article to THE VERDICT,
                                                                                     please email it to:
                                                                    Micha Star Liberty,

10                                                                                                                           Summer 2006
and allow the mediator to gently probe          TIMING IS EVERYTHING                         the mediation has commenced. The
into whether the other side might be            To the extent you consider disclosing        defendant’s attorney and risk manager
influenced up or down if certain informa-       information unknown to your opponent,        need to consider the impact of that poten-
tion came to light. Without revealing           the timing of the disclosure is critical.    tially significant information and to
confidences, the mediator may be able to        The beauty of the mediation process is       evaluate the new facts with the powers
get a sense as to how your opponent may         that you control the flow of information.    that be in order to obtain appropriate
react to new information. The mediator          You control not only what you disclose,      settlement authority. To only reveal impor-
should be able to give you a green light        but when during the mediation you dis-       tant and previously unknown information
or red light as to whether it would be          close it.                                    (newly discovered liability witnesses or
advisable and effective to disclose informa-        With this in mind, you should take       documents, a significant change in the
tion you might otherwise withhold. It           a wait and see approach in determining       plaintiff’s medical or employment condi-
may be that the mediator learns that it         when to disclose certain information. If     tion, etc.) at the mediation does not allow
would do you no good to reveal certain          negotiations are going well, there really    proper evaluation of that information and
information, or the message might be just       is no need to lay some of your cards on      will only lead to an adjournment so that
the opposite. If the mediator has gained        the table, as the cards you have played      the information can be properly consid-
your trust, trust her or him to advise you      may be good enough to get the deal you       ered.” Defense counsel may also want to
in this delicate area.                          are seeking. If the negotiations stall,      consider getting significant information
    Oakland plaintiffs’ attorney John           you then may reconsider your decision.       to plaintiff’s counsel prior to the media-
Winer, Senior Partner of Winer, McKenna         The disclosure of information may serve      tion since it will assist plaintiff’s counsel
& Davis, LLP, collaborates with the             as a catalyst to restart stalled negotia-    in evaluating the case and in managing
mediator in making disclosure decisions.        tions, or may motivate your opponent         his/her client’s expectations.
During a recent discussion, he noted: “The      to move to a place he/she did not intend        To recap, every mediation, as is the
issue for me in most mediations is not          to get to.                                   case with every negotiation, is unique and
whether or not to disclose a key piece of           Even though the primary focus of this    fluid. Just as there are decisions to be
evidence to the mediator. I always reveal       article is the disclosure of information     made as to what to demand and what to
positive evidence to the mediator either        during the mediation, a brief discussion     offer, there are also decisions to be made
in a confidential brief, a confidential por-    addressing disclosure of information prior   regarding what to reveal to your opponent
tion of the brief, a phone call or I bring it   to the mediation is warranted. In explor-    and when to reveal it. There exists a
to the mediation. Then, I let the mediation     ing the issue of disclosure of critical      delicate balance between disclosure of
begin to play out and determine for myself,     information at the mediation with William    information and preservation of your trial
with the help of the mediator whether or        Mulvihill, Managing Partner at the           strategy. Various factors, outlined herein,
not it will be worth it to disclose the         Oakland firm of Boornazian, Jensen &         will dictate how this balance plays out.
information to the other side.”                 Garthe, he noted that “From the defense      An experienced mediator can assist you
    Winer’s approach is to err on the side      standpoint, we always hope that we have      in making decisions regarding what, how
of disclosure when it is unclear whether        been thorough and creative in discovering    and when to disclose information during
the information will influence settlement       the liability and damages claims of plain-   the mediation.
discussions. “I almost always end up reveal-    tiffs. However, if there are
ing key evidence to the other side even if      elements of liability or dam-
it appears uncertain that the case will         ages that have not been                                    — Michael D. Ranahan, Esq.,
settle at the mediation. My experience is       disclosed for whatever rea-                                a Mediator and Arbitrator
that given sufficient information, even         son, and which could have                                  with JAMS - The Resolution
skeptical defense counsel will come to their    a dramatic effect on the                                   Experts, has nineteen years of
senses and offer appropriate value in most      settlement evaluation of a                                 personal injury experience.
cases. By not giving the defense access to      defendant, it is of little ben-                            He has handled over a thou-
the information you are denying them the        efit for settlement purposes                               sand personal injury cases to
opportunity to see the case your way.”          to conceal those facts until                               conclusion.

The Verdict                                                                                                                             11
                Mediation Briefs
                                             by Todd A. Walburg

     Mediation provides a plaintiff’s attorney with the opportunity to sell his or her client’s case
     to the involved parties and the mediator without being restricted by the rules of evidence
     and other limitations. This may be the last chance to close the sale before trial, and therefore
     it makes sense to thoroughly prepare for your sales presentation and to put forth your
     finest promotional materials. The methods of closing the sale are almost limitless in this
     age of technology and creativity. A plaintiff’s attorney should take advantage of this oppor-
     tunity to truly advocate for his or her client by presenting an organized and impressive
     mediation brief that addresses every possible issue. In order to ensure that you cover all
     appropriate issues, it is helpful to follow an organized structure that includes the headings
     discussed herein. Each heading should include subheadings as needed, and the text must
     be synchronized to refer to the exhibits that can be easily located via a table of contents. A
     discussion of each section and tips for creating a powerful mediation brief and exhibits follows.

12                                                                                             Summer 2006
THE INTRODUCTION                                a synopsis of the medical treatment and        for your brief. Medical treatment endured
Make a good first impression by opening         injuries endured by your client. Describe      by your client should be described in
your brief with a compelling and vibrant        all residual injuries and problems that        graphic terms to overcome the desensiti-
summary of the strong points of your case       remain. Personalize your client; explain how   zation commonly found in attorneys and
and a favorable comment about your client.      the incident has changed your client’s life.   insurance adjusters. If you have had the
Thereafter, introduce all of the parties and                                                   medical records summarized by a nurse,
identify the attorneys that represent each      THE LIABILITY DISCUSSION                       it is helpful to cut and paste excerpts of
party. Conclude your introduction with a        The length of this section will vary greatly   the medical record summary into your
statement about the value and seriousness       depending on the case. If it is a case of      mediation brief, being careful to remove
of your case, but hedge that statement          clear liability, confidently state that, and   any work product or notes not intended
with an indication that you intend to           include a few short citations to law, facts,   for defense counsel.
negotiate in good faith and hope that           or evidence. If liability is disputed, it is
defense counsel will do the same. Other         important to provide a thorough analysis       THE DAMAGES DISCUSSION
than the introduction of the parties and        that includes case quotes and statutory        In many cases, this may be the most
attorneys, each sentence of the introduc-       language to prove up your case. If there       important section of the mediation brief.
tion should be used to grab the reader’s        is a particularly relevant case or statute,    The discussion should be broken down
attention to encourage a careful review of      feel free to attach a copy as an exhibit. In   into subsections that list special damages
your brief from start to finish.                addition to law, it is important to refer to   (past and future medical expenses, past
                                                facts and evidence. It is helpful to include   and future loss of income, property dam-
THE STATEMENT OF FACTS                          excerpts of deposition testimony, which        age, miscellaneous damages), general
The factual summary will likely be the          can be done easily by cutting and pasting      damages, and liens, actual charges, and
longest section of your brief and must focus    from the ASCII diskette or CD that you         collateral source issues. Be sure to include
on the facts that are helpful to your posi-     ordered with the deposition transcript. If     every possible element of special damages
tion, but also deal with facts that are         there has been earlier briefing of legal       and do not be embarrassed to include
damaging to your case. If you fail to discuss   issues on demurrers or motions for sum-        smaller items. Your client may not consider
facts that the defendants will raise, you       mary judgment, the plaintiff’s attorney        the smaller items to be petty, and by
have given your opponent an advantage           can use that briefing as a starting point      building up the total special damages you
and you may come across as someone who          to further refine the legal arguments to       are potentially increasing the overall
is not able to anticipate defense positions     be used in the mediation brief.                settlement value and adding in some room
and arguments. As such, it is important             In cases involving multiple parties,       to withdraw claimed damages should the
to have a response or counter-fact for every    separate out each defendant and provide        need arise. List every medical provider
bad fact to be raised by the defendants.        a detailed explanation as to the liability     and the full amount of the charges for
    Use this section to provide a detailed      of that defendant. It is not necessary to      that provider. Include a reference to the
account of the incident and be sure to          apportion fault here, as it is usually pref-   exhibit that contains the billing statement.
utilize and refer to the police report or       erable to have the defendants argue            Endeavor to include the most up-to-date
other pertinent reports. Include a discus-      amongst themselves and come up with            bills, however if charges are missing, go
sion of the events leading up to the incident   their own individual settlement offers.        through the medical records and docu-
so as to provide a complete picture of that                                                    ment all treatment dates and type of
particular day and to diffuse any defense       DESCRIPTION OF INJURIES                        treatment that was not included. Note
arguments that your client was doing            AND MEDICAL TREATMENT                          this information on your list of medical
something improper. In some situations,         Provide a comprehensive list of every injury   expenses and provide an estimate of the
it is helpful to precede your discussion of     that your client has suffered. This list can   omitted charges which you can obtain
the incident with a commentary about            be taken from previous discovery responses     from a “biller”, an administrator, a physi-
your client’s life before the incident. Give    and modified into a format appropriate         cian, or a nurse.

The Verdict                                                                                                                             13
    Following discussion of medical               likely range of jury verdicts. Do a jury       tion Documentaries; Legal Settlement
expenses, provide an analysis of lost             verdict search, and if helpful, provide jury   Documentaries; and Hybrid Settlement
income. It is important to provide sufficient     verdict information as exhibits. Make          Documentaries. While many of these
factual basis so that the income loss does        reference to the venue where the case will     videos cost at least $5,000 to produce
not appear to be speculative. The figures         be tried and explain why a jury in said        professionally, it is important to remember
should be drawn from the exhibits attached        venue will be sympathetic to your client.      that the costs of production are usually a
to your brief, which may consist of a dec-        Following analysis of jury verdict poten-      cost of suit, and that these videos can
laration or letter from the plaintiff’s           tial, make a demand for purposes of            increase settlement value exponentially.
employer, a wage loss verification form           mediation. You can indicate that the           An excellent analysis of the various types
signed by the employer, or income tax             demand will be withdrawn and increased         of settlement videos can be found in an
records that support the specific loss of         if the case is not resolved at mediation.      article entitled “Legal Settlement Videos
income claimed. If you cannot presently           Be careful and strategic when deciding         – The Leverage to a Successful Mediation”
provide documentation of lost income, you         on the amount of your demand, as that          by Charlie Chapin, in the November 2005
may state that plaintiff is not claiming loss     amount will set the range or “zone of          issue of CAOC’s Forum magazine, search-
of income for purposes of this mediation,         bargaining”. Your opening demand should        able at
but such information will be provided at          generally be high but it must also be
time of trial. If there is no real income loss,   credible.                                      TIPS FOR ORGANIZATION AND EASE OF USE
it is better not to mention it so that you                                                       You should always use binders, exhibit
do not appear to be overreaching.                 THE EXHIBITS                                   dividers, and a table of contents. The cost
    Future medical expenses and future            Exhibits are extremely important and           is minimal and the self-contained package
loss of income must be supported by               provide an opportunity for the plaintiff’s     of organized materials shows that you are
reports and documentation. If you feel            attorney to be creative. Color photographs     prepared and it allows easy reference to
comfortable showing your cards, include           of the plaintiff and his or her family taken   exhibits as issues arise during mediation.
expert reports from a life care planner, an       before the incident should come first in       DVD’s should be placed in CD envelopes
economist, and health care providers. The         your binder of exhibits. Thereafter, exhib-    and inserted into the binder or its front
general damages discussion should sum-            its should include reports, maps, diagrams,    pocket. You should send out your media-
marize the most significant injuries,             charts, and photographs of the scene.          tion brief as early as possible to allow time
medical treatment, and pain and suffering,        Medical records, reports, and photographs      for evaluation, and extra copies should be
and provide a basis for the claimed general       of the plaintiff following the incident        provided for easy distribution to counsel,
damages.                                          should come next. Medical bills, loss of       claims representatives, and clients.
    A discussion of liens, actual charges,        income documentation, and expert reports           In conclusion, the mediation brief is
and collateral source should be included          should conclude the exhibits. By following     an important package of sales presentation
in anticipation of defendants’ practice of        this order of exhibits, they will match up     materials that should be carefully devel-
slicing the amounts of claimed medical            to the discussion contained in your brief.     oped and organized by a savvy plaintiff’s
expenses. It can be helpful to provide a                                                         attorney seeking to close the sale. Extra
legal discussion of the current status of         THE EXTRA AMMUNITION                           work on the front end in timely preparing
the law, and if not favorable, point out          Extra ammunition can come in many              the mediation brief will also make the
the fact that the law is constantly chang-        forms but the most effective ammunition        mediation session a more productive and
ing in this area and will likely be changed       is a legal settlement video. These videos      enjoyable experience for you and your
in your favor by the time of trial.               can be produced on DVD and the disc            client.
                                                  can then be included in your mediation
THE CONCLUSION AND DEMAND                         binder. There are several types of settle-     — Todd A. Walburg, Esq., of Lieff, Cabraser,
Conclude by summarizing the total                 ment videos, including the following:                                       ,
                                                                                                 Heimann & Bernstein, LLP specializes in liti-
amounts of special damages and general            Wrongful Death Settlement Brochures;           gating personal injury and product liability cases.
damages and make a statement about the            Day-In-The-Life Documentaries; Deposi-         He can be reached at

14                                                                                                                                Summer 2006
              Current ACCTLA Sustaining Members
      Kelly Balamuth           CAVALLI & BREWER                James Oberman
      Molly Harrington           J. Gary Gwilliam              Andrea Huston
      Jim Yu                     Steven R. Cavalli             Petra DeJesus
                                 Stephen J. Brewer             Anya Fuchs
    RICHARD J. BASKIN            Monique Morales               Catosha Woods
                                                               Ian Rivamonte
    TERRY D. BULLER            HADDAD & SHERWIN                Autumn Mesa
                                Michael J. Haddad              Matthew Thiel
    CASPER, MEADOWS,            Julia Sherwin                  Barbra Ferre
                                                               Justin Bosl
      Stan Casper              DAVID HICKS
      Michael D. Meadows                                    JOANN KINGSTON
      Andrew C. Schwartz       HILDEBRAND, McLEOD
      Larry E. Cook            & NELSON                     KRISTIN LUCEY
      Thom Seaton                Frederick L. Nelson
                                 David B. Draheim           GEORGE W. NOWELL
    LYLE C. CAVIN, JR.           Anthony S. Petru
                                                            RICHARD PHELPS
                                 Peter Hinton               PAUL L. REIN
    A. CHARLES DELL’ARIO         Peter Alfert
                                 Scott Sumner               ROBERT G. SCHOCK
                                 Elise Sanguinetti
                                 Jeremy Lateiner            RANDALL E. STRAUSS
    & SIMONS                                                JOSEPH E. TOMASIK
                               HOBIN, SHINGLER & SIMON
      Martin L. Jaspovice
                                Richard Hobin
      Richard J. Simons                                     R. LEWIS VAN BLOIS
                                Ronald J. Shingler
                                Aaron Simon                 CHRIS VIADRO
                               FREDERICK JOHN JAMES         CHERYL WHITE
                               KAZAN, McCLAIN, ABRAMS,                  a
                               FERNANDEZ, LYONS & FARRISE
    GILLIN, JACOBSON, ELLIS      Steven Kazan               Become a sustaining member and
    & LARSEN                     David McClain              reap the benefits! They include
      Andrew R. Gillin           Denise Abrams              free admission to Judges’ Night
      Ralph L. Jacobson          Francis Fernandez          and the What’s New in Tort
      Luke Ellis                 Dianna Lyons               & Trial seminar. See page 19
      Jim Larsen                 Simona Farrise             for the tear-out Year 2006 Dues
      Kristin M. Lucey           Gordon Greenwood           Notice or call Pat Parson at
                                 Frances Schreiberg         (510) 538-8286.

The Verdict                                                                                   15
                                            DEEPER     A perspective by Richard Phelps

For about ten years, mediation has been a regular part of the litigation landscape. I have seen some general improvement in plaintiffs’
participation. I would say it is about the same for defendants’ participation. Since this article is for plaintiffs, I will focus my comments
for that side of the table. I still see mistakes being made that could and should be avoided without much additional work or cost.

There are several causes of failed media-         jury verdict minus the costs of getting that    stomach problems and headaches for two
tions. Sometimes, the defendant has no            verdict. However, realistically, the settle-    weeks. The defendants stipulated to lia-
intention of settling at a fair value. When       ment value also includes a discount for the     bility. The defense attorney was a senior
you sense this situation, try to get some         risk of a flat-out loss. On the other hand,     partner, a likeable, honest guy, and able
money on the table before the mediation.          catastrophic injury cases or cases with puni-   to influence the adjuster. He stated to
If the opening offer is low and the defen-        tive damage potential have an unknown           plaintiffs’ counsel that he was sitting in
dant has a reputation for not budging after       upside. This article is aimed at the vast       for the assigned attorney and would gladly
its initial offer, try to get a commitment        majority of PI and other cases. You will        work the case through as long as there was
that it will approach the negotiation with        have to get top value from a friendly jury      some progress. Let’s say the child’s case
an open mind and realistic additional             and risk getting less than you could get        was worth $75K to $100K. The opening
authority. If not, mediation at that time         from mediation by getting an unfriendly         demand was $45K for each parent plus
will not be worth the your time, your             jury and/or a defense oriented judge.           $400K for the child.
money, or the danger of demoralizing your            The following hypothetical, a fictional-         The plaintiffs’ attorney began on the
client. Only by taking the case to trial (or      ized amalgam of various mediations I have       wrong foot and then compounded his error
at least close to it) will you achieve a rea-     conducted, demonstrates the intercon-           by failing to notice how he was alienating
sonable result. Those situations are the          nected chess moves that build on each           defense counsel and missing my efforts to
ones I hate most as a mediator. Nobody            other to achieve the best outcome possible      guide the discussion back on track. His first
goes home happy, the case isn’t settled and       for your client. Just as one must think         mistake was to start off the mediation with
there is an association of me with a sour         several steps ahead to build a strategy and     a diatribe about the defendant’s outrageous
outcome that I had no control over.               position the case optimally at trial, so too    conduct, despite the stipulated liability. This
    It is important to remember that              must one plan proactively in negotiating        approach not only wasted time but also
mediation cannot result in the maximum            a settlement.                                   angered the defense attorney and the senior
recovery for the plaintiff; by definition, it                                                     claims rep. It was clear from the defense
is a compromise. Even the most liberal            This was a toxic tort case. The parents and     attorney’s body language that he was on
defendant expects plaintiff’s counsel to          their son were exposed. The child was hos-      the verge of leaving. The plaintiffs’ attor-
compromise in exchange for a final resolu-        pitalized, and after some follow-up treat-      ney’s second mistake was to ignore my
tion. Ideally for the plaintiff, the settlement   ment, recovered well. The parents sought        attempt to save him from himself. I tried
value at mediation can approximate a good         no medical treatment but complained of          to intercede to get him to drop the issue,

16                                                                                                                              Summer 2006
but the plaintiffs’ attorney continued. It is   them everything you can with plenty of
important to watch the mediator — and           time to evaluate before the mediation.
even opposing counsel — for signals about
what might produce results in the media-
                                                Prime the pump!
                                                    When we caucused, the defendants
tion, and heed those signals.                   couldn’t believe the demands. Though
   Remember the human element of                they assured me that they had come to
lawyering — you rarely get maximum              settle, they were adamant that they
value from an opponent you have insulted        weren’t going to waste time if the plain-
or pissed off. Certainly some companies’        tiffs weren’t realistic. The plaintiffs
offers feel insultingly low, but letting your   wouldn’t make realistic offers for the
professional outrage boil into emotional        parents, shaving down from $45K to
anger can be very unproductive. Work            $30K and then to the teens, but this was
out those feelings with your colleagues or      still too high. The mediation ended early
in therapy. Getting angry with the mes-         without much discussion of the child’s                      Caldwell v. USAA
senger will not get you more money, and         valuable claim. The defendants left saying       UIM Arbitration award of $355,110.97 by
will likely cost you.                           they were going to trial. What did the           Hon. Michael Ballachey (Ret.). Claimant
   Your primary goal is to gauge their top      plaintiffs not think about? They could           is a 52-year-old woman who was a cura-
                                                                                                 tor at the Oakland Museum and was
authority and decide whether to take it.        have settled the parents’ cases by making
                                                                                                 broad-sided by an SUV when she was 11
If you end the mediation before you get         a reasonable demand. This would have
                                                                                                 weeks post-surgery for a hip revision.
that information, you have failed. Their        given them credibility in negotiating the
                                                                                                 Initial X-rays were negative, but claimant
offers along the way may be in reaction to      son’s claim, and, if they had had to try it,
                                                                                                 was eventually diagnosed with a fractured
your demands. If you are too high, they         credibility with the jury as well — the
                                                                                                 femur, which had to be surgically repaired,
will be very low. No one wants to give up       parents would have been able to testify
                                                                                                 and a displacement of her hip prosthesis.
their negotiating room. If you are far away     about what their son went through with-
                                                                                                 The adverse driver had a $100,000 policy
from the real value, you have NO leverage.      out holding one hand out to the jury on
                                                                                                 with USAA, and the third party case was
They can and will ignore whatever you           their own very weak claims with no
                                                                                                 settled for the policy limits.
say and your credibility will take a hit.       medical treatment.
   In this hypothetical, the plaintiff’s                                                         USAA then fought the UIM claim for two
attorney tried to justify the liability            Most folks don’t make all these mis-          years, and eventually offered only $50,000
                                                                                                 new money before arbitration. Judge
harangue by stating that he was consider-       takes. This was an example to demonstrate
                                                                                                 Ballachey issued an award for
ing amending to add a request for punitive      that how you deal with one aspect affects
                                                                                                 $355,110.97, and USAA paid $249,775.00
damages. This move was patently weak            the rest of the mediation and your chances
                                                                                                 new money ($200,000 UIM and $49,775
— if the punitives case was so strong, why      to get your case settled.
                                                                                                 Med Pay) to satisfy the award. The arb
didn’t he allege them from the start?
                                                                                                 award exceeded claimant’s CCP 998 Offer
Threats almost always undermine your            — Richard Phelps has been mediating since
                                                                                                 to Compromise, and USAA initially agreed
credibility and calcify opposing counsel’s      1995. He has mediated 1200 cases with
                                                                                                 to pay $17,516.59 in litigation costs and
position. Any claim worth relying on in         approximately 90% resolution. He is on the
                                                                                                 $57,596.08 in statutory interest. USAA
mediation is worth including in the com-        Alameda and Contra Costa Superior Court
                                                                                                 then changed their mind and filed a motion
plaint, by amendment if necessary. Claims       mediator lists. He was Co-Chair of the Alameda   to tax costs, which was denied, but they
adjusters are, in essence, from Missouri        County Bar Association ADR Section for six       intend to appeal that decision.
— the “Show Me” state. This is in part          years. He is a member of the Mediation Society
because they are skeptical by nature and        and a Diplomat Member of the California          If you have any news of interest,
in part because they need to show their         Academy of Distinguished Neutrals. He has        please email it to Micha Star Liberty,
supervisors something to justify giving         mediated cases in all Bay Area counties, Sac-
you more money. For these reasons, give         ramento, Stockton and Modesto.

The Verdict                                                                                                                                    17
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18                                                                                                                                             Summer 2006
                             ACCTLA                ALAMEDA CONTRA COSTA TRIAL LAWYERS’ ASSOCIATION

                                                 2006 Dues Notice

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

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

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

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




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                                         Dedicated to the improvement of the fair administration of justice.

The Verdict                                                                                                                                      19

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