Experienced Litigators, Taking On Challenging Cases Since 1994

A Big Win with “High Low Binding Arbitration”

It was 1995, I was 27 years old, suddenly I had a check for $64,000 in my pocket.

This is the story about my first big win as a new personal injury lawyer.  It’s a story of how curiosity and hustle come together to form a big win for our client and my first big attorney fee check.  This is a story about experts, alternative dispute resolution and settlement.

It was 1995, back then, I was single, living in an apartment in the Marina district of San Francisco.  Our apartment was just off Lombard Street near our restaurant of choice, Jack In the Box. I was living with my good friend Jay Campbell and working round the clock.  When I would come home on Friday nights Jay would greet me with his big warm smile and great sense of humor and say, “It’s Friday, only two more work days until Monday!”  His joke did not affect my desire to work less on the weekends. I was having fun. Each day flew by in what felt like a series of flashes and before I knew it the day was gone in what felt like moments.  I did not realize it at the time, but I was in the state of flow, doing what I wanted to do and loving it.

I had heard the term vocational rehabilitation expert, and was interested in meeting an expert that worked in this area.  Someone mentioned Ona Schissel’s name to me. At the time Ona was working as a vocational counselor and rehabilitation expert.  Her office was on Montgomery Street in San Francisco. I called her up and asked if she would meet with me and tell me about the kind of work she did and what it meant to be a vocational rehabilitation expert.  At the time my office was at 126 Post Street in San Francisco, Ona’s office was a short walk away. When I arrived Ona and I talked about her work, I asked some questions and she shared with me how a vocational counselors can help an injured person who can no longer work effectively in their chosen occupation due to the effects of an injury.  Ona looks at a person’s background, work history, aptitude and formal education and makes recommendations about fields of work they can still do post-injury. She helps people determine what types of work they have the aptitude and can actually do, given their post-injury physical ability. The level of post-injury physical ability is referred to as a person’s functional capacity.  There are health care providers that provided functional capacity testing for injured people who need to change jobs after an injury.

Eventually Ona asked what I was working on.  I shared with her that I had just opened my office and was focusing on trial work.  Ona looked at me and said, “I have a case I want you to look at.” She looked across her office to the top book shelf, stood up, walked over, reached up and pulled a case file off of her shelf.  She literally dusted off the cover of the file and said you should take a look at this case.

Ona was showing me the personal injury case file of Sidney Ford.  Sidney was a self employed barber from Richmond, who had slipped and fallen on the sidewalk near his shop.  The sidewalk had been ripped up by a construction company and a safe route of travel for the pedestrians. One day Sidney fell while navigating the negligently maintained construction site.  The fall caused an injury to Sidney’s back. Sidney’s treatment consisted of doctor’s evaluations and physical therapy at Kaiser hospital. Sidney was alleging that his low back had not improved after physical therapy and that he was living with chronic low back pain.  The lawyer Sidney was working with initially had substituted out of the case. This left Sidney to act as his own attorney. The legal lingo for this is that Sidney was acting in propria persona or In Pro Per. In Propria Persona is a latin phrase which literally means “in the person of yourself.”  Ms. Schissel was a consulting expert in the case and was doing Sidney a favor by helping him to find a lawyer that was willing to take on his case on a contingency fee. As is common for injured people, Sidney did not have enough money to pay an attorney an upfront retainer to work on an hourly basis to prosecute his claims in court.

That night I walked out of Ona’s office with Sidney’s file.  Shortly after, I called, we met and Sidney signed my contingency fee agreement. I became his attorney.  At the time I took over Sidney’s case, the case had already been filed with the court and all of the discovery was completed.  I recognized that the next step was to let the court know of my representation, inform the court that the discovery was complete, and that the case should be set for trial.  The court agreed and set the case for trial.

Sidney and I showed up for the first day of trial ready.  The case was venued in Contra Costa County in the town of Martinez.  Our case was called. Defense counsel and I were invited into the Chambers of trial Judge Maria Elena James.  Judge James greeted us with her warm smile, compassionate, yet pragmatic demeanor. She quickly got to work to determine what could be done to help the plaintiff and the defendant reach a settlement that did not involve a two week jury trial in her courtroom.  

Judge James determined that the parties’ views of the settlement value of Sidney’s case were far apart.  The defendant viewed the case as defensible, meaning the jury would not find any negligence. And even if they did find some negligence on the part of the construction company, the jury would also find significant comparative negligence on Sidney. They would argue that he should have seen and avoided the open and obvious condition that caused him to fall.  Further, the defense viewed Sidney’s injuries as nothing more than what the insurance industry refers to as “Soft Tissue” injuries with “no objective findings” to verify his complaints of pain. Essentially, Sidney may say he was hurt, but the jury will have to take his word for it. Because there is no objective test result (x-ray or MRI) to verify what was causing the pain inside of Sidney’s back.  The last settlement offer of the defendant was $10,000 dollars.

Sidney’s view of the case was that his life been forever changed for the worse because of the defendant’s negligence. This negligence caused his now lifelong, chronic low back pain.  Sidney would not consider any settlement offer that was not well above $100,000 dollars. It looked like the case was headed for a jury trial.

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After about an hour of discussions, the prospects of any settlement looked unlikely, Judge James raised the idea of resolving the case with an agreement for high low binding arbitration.  Her specific proposal was a binding high low arbitration with a low of $10,000 and a high of $200,000. What this meant was that instead of the case being heard and decided by a jury of 12 people in Judge James’s courtroom over the next two weeks, the parties would instead agree to hire an arbitrator.  A neutral attorney in the community would hear the facts of the case and decide the factual issues of negligence and damages. The decision would be binding, meaning a final outcome on the parties that was not appealable. Such an arbitration could be done in a few hours at the arbitrators office. The parties agreed and the case was settled.  We just needed to conduct the arbitration and the case was over.

Defense counsel and I hired Peter Elkind, a mediator and arbitrator from Oakland.  A date for the arbitration was agreed to and set for Mr. Elkind’s office in Oakland.  The case was presented based on the photographs of the scene and the relevant medical records and reports from Kaiser where Sidney had his medical care post accident.  The only witnesses were Sidney and his wife, Maddy. The length of the hearing was about two hours.

Two weeks later an envelope arrived from Peter Elkind with an arbitration award of $160,000.  After, attorney fees, case costs and the Kaiser lien were deducted Mr. Ford received a check for $86,000.  My attorney fee was $64,000. This was the first real money I made as a plaintiff lawyer.

Expert Witnesses: What Have We Learned From The Case of the Audacious Supermarket Site Inspection?

Sign-up to Settlement: A Personal Injury Bootcamp looks at the issue of both formal and informal discovery and how they differ. The court of appeal decision in Pullin v. Superior Court (2000) 81 Cal App 4th 1161 looked at the practical differences between the two types of discovery in the context of an informal site inspection at a Supermarket.

Pullin was a personal injury claim that arose from a slip-and-fall at a Von’s Supermarket in Los Angeles. The plaintiff attorney found himself in the uncomfortable position of having an unprepared expert, who was about to have his deposition taken. Plaintiff’s forensic safety engineer had not inspected the scene of the slip-and-fall, yet his deposition was about to be taken. Plaintiff’s attorney called Von’s counsel and asked for permission for his expert to “conduct tests” on the floor of the Supermarket. The defense lawyer denied the request, reminding the plaintiff’s lawyer that fact discovery was closed and the time had run for a properly noticed site inspection, pursuant to C.C.P. § 2031. Plaintiff responded by sending his expert to the store on their own, while the store was open for business. The expert examined the spot where the fall had occurred, used a “small machine” to test the floor and left. During the 15 minute inspection no one complained, no one asked the expert to leave and no damage was done to the floor.

Expert Witness

The expert was deposed the day after the informal inspection took place and they revealed the details of their informal site inspection conducted during store opening hours. The case proceeded to trial. At trial, the defendant moved in limine to exclude the expert’s opinion and the trial court agreed, finding the conduct “secretive” and “contrary to the spirit of our discovery laws.” Plaintiff filed a writ and the Court of Appeal overturned the trial judge’s exclusionary ruling.

Justice Miriam A. Vogel wrote the opinion and held that there is nothing in the Civil Discovery Act to prevent a party from conducting unilateral investigation, provided that the investigation is lawful. Low cost investigation should be encouraged and “evidence is not made inadmissible by the simple fact that it is obtained by investigation rather than by way of formal discovery,” Pullin at 1165.

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The question before us is whether property open to the public can be examined without recourse to section C.C.P. § 2031, Pullin at 1166. In answering this question, the justices examined the Los Angeles Municipal Code that governed private property which is open to the public. Because plaintiff’s forensic safety engineer, Ralph Engdahl, did not do anything to damage the property, no one asked him to leave during his inspection and he did not interfere with Von’s ability to conduct their business, “we do not see any unlawful conduct,” Pullin at 1165.

In Sign-up To Settlement’s session on Expert witnesses, we cover how to properly prepare an expert witness for deposition. The example set by the plaintiff attorney in Pullin is not ideal, however it was lawful and, ultimately, resulted in admissible evidence to support an expert’s opinion.

SEE ALSO:  10 Reasons Why Criminal Lawyers Make Excellent Civil Trial Attorneys.

The One “Must Know” Question To Conclude Every Expert Deposition

Question:  Are there any other opinions that you intend to give at trial, other than the opinions you have already provided?  

 

The case of Jones v. Moore, (2000) 80 Cal App. 4th 557, explains why this question is so important.  Jones was a legal malpractice case that arose out of a marital dissolution case.  The case went to trial and plaintiff lost on liability; it was a defense verdict. Plaintiff appealed and argued that the trial judge’s order, excluding certain opinions of plaintiff’s expert witness, was grounds for a reversal of the jury’s verdict.

The Court of Appeal analysed California’s expert witness statute at C.C.P. § 2034 and the trial judge’s order under the abuse of discretion standard.  The purpose of C.C.P. § 2034 is to permit parties to adequately prepare to meet the opposing expert opinions that will be offered at trial.  The issue that the court of appeal analysed was whether or not the offered expert opinion testimony was beyond the scope of plaintiff’s expert’s deposition testimony.  Plaintiff’s counsel was attempting to ask his expert at trial for opinions that were not given at the expert’s deposition.  

At deposition, defense counsel asked the plaintiff’s expert if there were “any other areas, in which you believe defendant fell below the standard of care in representing plaintiff?” Plaintiff’s expert replied, “Not that I am prepared to testify to at this time.” The defense lawyer asked whether the expert anticipated doing any further work on the matter that could result in any other opinions.  The expert said, “No, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights.”

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The court of appeal explained that a party has a right to rely on the other party’s expert’s express representation that the opinions expressed during deposition are the only ones that need to be met at trial. The court referred  to Bonds v. Roy (1999) 20 Cal 4th 140, as authority for important goal of  § 2034, which is to enable parties to properly prepare for trial and allowing new and unexpected testimony for the first time at trial is contrary to that purpose.


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Jones is a good case to review while preparing to defend your own expert’s deposition or while planning to take the defense expert’s deposition. When taking an expert’s deposition, it is important to determine all of the expert’s opinions and what they are based upon. It’s also important to ask the expert if they intend to do any additional work or intend to offer any additional opinions at trial. If they answer in the affirmative, you have the right to question the expert on those opinions. Also, C.C.P. § 2034 requires an expert to be prepared for the giving of those opinions and the basis of those opinions at their deposition. The Jones case gives good authority for the rule that an expert cannot add opinions not given at deposition, especially when an express representation is made that all of the opinions have been made at the deposition and no new opinions will be given at trial.

In Sign Up To Settlement: A Personal Injury Boot Camp, we have an entire section devoted to just expert witnesses.  We go over the retention of experts, their disclosure and how to prepare your expert for both their deposition and trial.  For more information, go to www.signuptosettlement.com.

SEE ALSO: Three Keys To A Successful Personal Injury Trial

Letting Go and Grabbing The Trapeze. The Story of A Former Prosecutor Finding Her Way As a Civil Trial Lawyer

This blog details my interview with civil trial lawyer Anne Bremner. The focus of our discussion was what it was like for Anne making the switch from prosecutor to civil trial lawyer. Ann worked in the King County Prosecutor’s Office, Seattle, from 1983 to 1988, where she tried over 200 cases. “I loved those years in the prosecutor’s office. It taught me everything I know. I had mentors I could rely on and learn from. The motto in our office was: watch one, do one, teach one.”

When Anne says, “It taught me everything I know,” she is talking about how to try a case in front of a jury. “You learn the evidence rules. You learn to organize the evidence. You learn to think on your feet and there is no better grounds for training than the prosecutor’s office or the public defender’s office. We had to learn all of the predicate questions for experts. How to lay a foundation for the admissibility of evidence.”

Eventually, Anne got to the point where she asked herself the question, “Do I want to be a career prosecutor?” Anne felt the right amount of time passed to “master the art”, and then moved on to work in the prosecutor’s office for five years.

Anne landed at Stafford Frey Cooper, where she remained for 25 years. She benefited from Prosecutor Norman Kim Mailing’s (1938-2007) mentoring and who helped Anne transition to Stafford Frey Cooper, which was a good fit for her because they defended police officers in civil cases.

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Anne had another mentor who assisted her in transition to civil work. Tom Frey took Anne under his wings and helped her try her first civil case – a high profile wrongful prosecution case. Mr. Frey must have felt Anne was quite capable. During her first civil trial, he flew to London to meet with Lloyds and left Anne to try the case by herself.

We also spoke about what it entails to work for a civil defense firm as opposed to being a prosecutor, and discussed the differences. Anne found the transition to be far easier than she expected. “First off, depositions were a breeze. It was who, what, where, when, and how. I did things quickly.” She was able to be very efficient during the discovery process, because she knew what she was looking for. The most difficult aspect was getting used to the civil rules, especially discovery disputes, the potential for monetary sanctions and the length of time it took to accomplish discovery. She found that civil discovery was much more evasive, complicated and protracted than anything she had experienced as a prosecutor.

How to choose? How to deal with transition

We talked about why civil trial lawyers with Anne’s background are so successful. Anne shared, “As a prosecutor, you are driving the bus. You are moving the case forward. You are moving the ball. You are the one that is taking the proactive steps.”

As a prosecutor, Anne felt she was performing public service, all while wearing the white hat. She feels the same way about her civil work. Now, Anne does a lot of plaintiff’s side sex abuse cases, just like she did as a prosecutor. She helps people who have lost loved ones to violence, just like when she tried murder cases. “You know the evidence rules like the back of your hand. Any prosecutor can argue the intricacies of the rules of evidence, because that is what you have to do on your feet as a prosecutor. Prosecutors know how a case looks at the end, which helps a lot when we start to work on a new plaintiff’s case.” At the very early stage of their work on a case, good plaintiff’s lawyers start to put together their opening statement and visualize how the case will present to a jury. This is a skill that prosecutors possess because of their courtroom experience. Prosecutors learn that they are responsible for the case “soup to nuts” and that only they can put the case together and finish it.

Former prosecutors have no fear when trying cases on the civil side. This ‘no fear’ perspective is where your settlement leverage comes from. People know that Anne will opt to (or: choose to) go to trial and that is very important in negotiation leverage.

So what advice does Anne have for younger lawyers thinking about making the jump from the criminal side to the civil side? “When you are hanging onto the trapeze and you are swinging, and there is another trapeze coming at you, let go of the old one to grab the new one. Do it!” She remembers sitting in her prosecutor’s office, teary-eyed, thinking, “I will never have this much fun again and I will never like my job this much again.” Once she let go and reached for the trapeze coming at her, she realized there were so many fulfilling things she could do with her talented trial skills that her work enjoyment only grew.

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The prosecutor’s office felt like a family home, but when she got to her civil firm it seemed so much more formal. Eventually, that changed for the better, too. The change was a little scary, especially when the senior partner would send her typed notes, asking her to research a legal issue. As a prosecutor, Anne did not spend much time doing research. It took a while and worked out fine, but it was a little scary at first. Her ‘on your feet trial lawyer ethos’ stayed with her, even as Anne became senior in her civil firm. The associates still joked, “Anne doesn’t do briefs.”

Eventually, Anne opened her own firm where she handles significant plaintiff’s cases and still does her share of criminal cases. “I should have done it years ago.” She likes the independence, the satisfaction of being responsible for all aspects of her practice. Anne has the opportunity to take on cases for causes now, as she began to help Amanda Knox, who is also from Seattle. Anne has gained the freedom she did not have in a larger law firm.

If you are a prosecutor or former public defendant interested in transitioning into civil personal injury litigation just as Anne Bremner had done, we want to show you how. Start by checking out our video “ABC’s of Becoming a Trial Lawyer From Day One.”

SEE ALSO: Civil Trial Lawyer, Craig Peters, Makes Transition From Criminal Defense Look Easy

Civil Trial Lawyer, Craig Peters, Makes Transition From Criminal Defense Look Easy

This blog summarizes my interview with plaintiff trial lawyer Craig Peters. I asked Craig about how he made the transition from criminal law to civil law look so easy. As a 14 years’ veteran public defender, Craig has already had significant jury trial experience. It’s that experience that allowed him to successfully transition over to the civil trial practice. While working as a public defender, Craig was recruited by a plaintiff’s personal injury firm who understood the value of Craig’s trial experience.

Craig jumped at the opportunity to start trying plaintiff’s civil cases and has not looked back. “What you learn in the public defender’s office, where you are typically thrown into the fire from day one and you have to just learn to get by, was the greatest training ever. It made it much easier for me when I came to the civil world.”

“While the context was different, it was not just about getting one juror to vote with you, as it is in the criminal defense world. Now it was about getting nine jurors to agree with you on the plaintiff’s side. A trial is a trial. Every trial is about a story, so I was fortunate to step right into a role that was comfortable for me.”

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The hardest part of the transition for Craig was learning all of the rules of civil procedure. “In criminal, whatever you’ve got, you’ve got to turn over to the other side, and whatever they’ve got, they’ve got to turn over to you. That’s it. There is one rule.” Looking back, Craig feels that criminal lawyers making the switch benefit from sitting down and just reading the entire code of civil procedure. “That may seem like a mammoth task, but I have actually sat and read it, and it goes pretty quickly. Reading through it gives you the gestalt of what it’s trying to do. It’s a really useful exercise that will guide you going forward.”

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In his first few months on the job, at his first civil job at Paul Hanley, Craig was quickly exposed to the different ways criminal defense lawyers and civil lawyers work with expert witnesses. In the public defender’s office, when he needed an expert witness, he had to make an argument as to why he needed the expert, he would have to negotiate with the expert on price and make sure there was a cap on the price. Oftentimes, the request for an expert would be denied still. The way that civil lawyers work with and retain experts was a dramatic difference, which Craig was exposed to right away at Paul Hanley.

One dramatic difference between the criminal and civil worlds was the social aspect. At the public defender’s office, Craig’s world was small: he knew all the judges and district attorneys; each day he worked in the same building with all of his colleagues; he lived near the courthouse he worked in and commuted to work on a scooter and did not own a car. When Craig took his first civil job, all of a sudden he was traveling to different parts of the state, trying cases in venues where he did not know anyone.

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“At the public defender’s office, you had the nest you could always go back to, where you are surrounded by your colleagues who are fighting the same fight and having the same struggles, and that is a great support system.” Craig has observed that this type of support system does not exist as much on the civil side. Yes, there are organizations like the Consumer Attorneys of California and the San Francisco Trial Lawyers that foster collegiality, but there is more distance between your colleagues.

Craig was surprised by all of the new lingo he was immediately exposed to. Before he made the switch, he never really stopped to think about all of the lingo he used at the public defenders office – lingo, which is completely foreign to the outside world. “I stepped out of that and into a whole new world, with lingo where people were talking about 998’s and I had no idea what they were talking about.”

One observation Craig made right away was how civil lawyers can get stuck in the details of a case, and have a hard time coming back and looking at the big picture and what the real story is. Stories need details, but you need to be selective with these. With too much detail, it becomes overwhelming and nobody knows what your story is about anymore. Finding the balance between the details of a case and moving back to the big picture again, while putting a few details back into the story, is a challenge all trial lawyers face.

What should a criminal defense lawyer consider while they determine if moving to the civil side is a good move for them personally? Craig points out that plaintiff lawyers operate in a high risk business, “We are not in a business model that, I think, any MBA program would endorse. On the criminal side, it’s also a high risk business for our clients and the risk that they face. On the civil side, there is the reality of having to keep the lights on. I never had to worry about keeping the lights on at the public defender’s office or anything financial, beyond trying to get an expert paid. Figuring out how to manage that can be a really hard part of the transition.”

To learn more about Craig Peters, check out, “Profile: Craig Peters; Trial lawyer makes transition from criminal defense look easy because he loves what he does.”

If you are a former public defender like Craig Peters, and you are interested in how to make the transition into a civil trial practice, start by checking out our video ABC of Becoming a Trial Lawyer From Day One.

SEE ALSO: 10 Reasons Criminal Defense Lawyers Make Great Plaintiff Personal Injury Lawyers:

 

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