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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:

 

The top 3 legal concepts criminal lawyers new to civil practice must understand

Here are the top three legal concepts criminal lawyers new to civil practice must understand. Criminal defense lawyers make excellent personal injury lawyers.  Jerry Spence started practicing law as a prosecutor, and later became a criminal defense lawyer.  The main reason is that criminal lawyers are already great litigators.  You already know how to question an adverse witness and try a case in front of a jury.  However, the transition between the two areas of law can seem daunting. The three issues that criminal defense lawyers new to personal injury law must know are:

1. The relevance standard for discovery in a civil case is reasonably calculated, to lead to the discovery of admissible evidence.  This standard allows for the search of evidence which may be relevant at trial.  See Norton v. Superior Court (1994), 24 Cal.App.4th 1750.

2. The burden of proof is different in a civil case, especially with injury causation.  Espinosa v. Little Co. of Mary Hospital (1995) is an excellent case that quickly gets criminal lawyers up to speed on the new standards of proof they will be working with.  Espinosa explains that it is only necessary for a plaintiff to demonstrate that the negligence of the defendant was a substantial factor in causing the claimed injury.

3. Criminal lawyers already work with expert witnesses, however, on the civil side, the expert disclosure requirements are different.  Schreiber v. Estate of Kiser (1999) explains the differences between a retained and non-retained expert witness and how that impacts the requirements of the expert witness disclosure statute, C.C.P. section 2034.210 et seq.

 

Sign Up To Settlement: A Personal Injury Boot Camp allows criminal defense lawyers and prosecutors to quickly ramp up the additional knowledge they need to begin taking civil cases.  We have broken down the entire civil personal injury practice into its ten essential segments of must-know information.  Each segment is explained in an easy to understand screencast that allows criminal lawyers to quickly digest the must-know information, needed to accept a personal injury case.

For more information on how to sign up and settle your first personal injury case, check us out at http://signuptosettlement.com/bootcamp.

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