To Be Able To Do A Little “Horse Trading” When Necessary

Some years ago, defense counsel subpoenaed the records of the plaintiff’s psychologist in a personal injury case. Plaintiff’s attorney realized what was in the records and brought a motion to quash the subpoena and to prevent defense counsel from using the word “addict” at trial. The quid pro quo was that plaintiff would not object to the subpoenas for the plaintiff’s medical records from the other health care practitioners she had consulted. The records of plaintiff’s primary care physician contained several notes of concern about the quantity of pain pills plaintiff was taking, as well as noting the requests for new prescriptions because the prescription was lost, or the pharmacy refused to fill the last prescription… The records of the plaintiff’s gastroenterologist revealed that the plaintiff told her gastroenterologist everything – that she took three oxycontin in the morning just to get going!

By virtue of those records the defense had the evidence it needed to compel the jury to conclude the plaintiff was an addict – even without the psychologist’s records, and without using the word “addict”. [By the way, one of the side effects of decreasing the quantity of oxycontin is pain – indistinguishable from the pain caused by an injury; except in this case, there was no medical evidence the plaintiff had sustained any injury from the minor impact].

... but your relationship with counsel shouldn’t be

 A few years ago your editor had a case with an attorney with whom she had not previously had a case. Our communications, started off very adversarial, if not positively acrimonious, and then deteriorated further. The attorney was busy and it was his practice to have his assistant take messages, and return the call to opposing counsel. Your editor finally insisted that she be put through to speak to the attorney “face-to-face” as it were. Your editor expressed concern over the tenor of the communications and denied making several of the more inflammatory statements attributed to her…plaintiff’s attorney and your editor we realized our respective messages had been mis-quoted, and we identified the assistant as the problem. Thereafter your editor and the plaintiff’s attorney got along quite well and settled the case to our mutual satisfaction (sometimes it does happen that both sides believe they got a good deal).

when chastised by the judge. It really doesn’t matter if your assistant made a mistake when calendaring the date or compiling the exhibits to the motion…it is you who missed the case management conference or is standing before the judge who can’t find the exhibit to your motion -  and therefor it is you who is accountable, and you just have to fall on your sword.

If the court insists on an explanation, you should remember that – unless the truth is that your father/mother/spouse had a heart attack and you came to the hearing directly from the emergency room -  the explanation rarely sounds quite as compelling in open court and when it is put on the record, as it did back at the office – it can even sound sort of like “my dog ate my homework” …

Plaintiff ate dinner at a local fast food restaurant. One of the employees working that evening had a cut on his finger. The Plaintiff complained that she had found a bloody bandage in the hamburger wrapper and got a free dinner. The employees threw out the dinner wrapper – assuming that was the end of the matter. Plaintiff talked to several friends and filed a complaint alleging she had been exposed to AIDS from the bloody bandage. The demand stated in the complaint was for $3 million.

The defendant (fast food restaurant) demurred to the complaint. Since a demurrer is described in the statute as a “trial”, plaintiff served subpoenas on several of the defendant’s employees to appear at the hearing on the demurrer. Counsel for the defendant brought a motion to quash the first three subpoenas; at the hearing on the motion to quash the judge explained that witnesses could not testify at the demurrer hearing. Notwithstanding which plaintiff served another two subpoenas!

At the hearing the plaintiff objected that none of the subpoenaed witnesses had appeared. The demurrer was sustained with leave to amend, but the plaintiff failed to amend; the motion to dismiss was granted and the defendant was awarded his costs. On several occasions after the dismissal, the plaintiff contacted defense counsel to reiterate her demand for $3 million…upon receipt of which she would pay the defendant’s awarded costs.

and use extreme caution when misrepresenting the facts in your argument

 A motion for summary judgment was decided in favor of plaintiff and the tentative ruling was contested by the defendant. At oral argument counsel for plaintiff sought to establish the dangerous characteristic of the location where the plaintiff was injured by asserting that the defendant was aware of a prior, similar incident that had occurred at the same location and which had also caused serious injury.

In fact, the prior incident to which plaintiff’s attorney referred had occurred several years earlier and at a location at some distance from the location of the subject accident, albeit in the same shopping mall. That misrepresentation was revealed by the incident reports produced at the hearing by the defense. The misrepresentation suggested that other assertions in the plaintiff’s brief might have been less than strictly accurate. Perhaps that was what persuaded the judge to take the decision under advisement – rather than affirm the tentative ruling.

but perhaps it’s just as well he doesn’t – at least in the case he presented to the jury. Your editor has sat as a juror on two criminal trials…

 The first case involved a series of petty thefts by the defendant employee from the supply room of a government office; the “loot” was stashed in the trunk of an abandoned car in the garage of the same building. The prosecution argued the defendant intended to sell the stuff; the defendant claimed it was to preserve the evidence of the allegations against him. The jury was composed primarily of older, unemployed and retired people on a fixed income. The jury delayed deliberations in order to get the free lunch. After lunch deliberations were quickly concluded: the defendant was determined to be not guilty because it was the opinion of all but one of the jurors that it is okay to steal, especially if it is from the government.

 The second case involved the possession for sale of a controlled substance. The defendant dropped the evidence the moment before his arrest and claimed the drugs were not his – which would be proven by the witness at the scene, a petite young black woman dressed in a pink tracksuit, who was unknown to the defendant. The witness at trial was a tall, heavyset black woman, dressed in a pink track suit. When she stepped down from the witness stand, she embraced the defendant and was overheard agreeing to meet him outside after the trial. The foreman led the jury through a careful and thorough review of all the evidence and weighed the creditability of each of the witnesses; the jurors carefully deliberated and found the defendant guilty.

…but attorneys ignore at their peril “The Art of the Compromise”.

For example, when a case is submitted to arbitration, the award reflects an informed, objective assessment of the value of the case, as well as the parties’ respective credibility.

When one party subsequently rejects the award by filing a request for trial de novo ... that is more often than not than an invitation to find a way to settle the case, i.e. a compromise within the parameters of the award, so as to avoid the time, expense and uncertainty of a trial.

You had the facts and the law in your favor, and you presented your case brilliantly.  The problem was that the jury did not like your client.

 Maybe your client was perceived as greedy and overreaching; your client was Russian, the defendant was Japanese and the jury was predominately Chinese – with their respective cultural values.

 Or maybe the jury failed to understand that when your client said she wanted to look like the picture of her taken 40 years earlier, she didn’t want the dentist to make her look 19 again, she just wanted to have a full set of teeth - like she had in the picture.

 Or maybe your client was a Christian (and a minister’s wife) and the defendant was an infidel (Sikh) being defended by an unbeliever (Jew) [this comment by the plaintiff stating the reason for her confidence she would win, the facts were unimportant, was overheard by your editor] … notwithstanding which the jury determined your client’s version of events was simply not believable.

Your editor is fairly confident you have encountered a motion that is titled one thing, but asks the court to decide an entirely different issue. The notice of a motion for summary judgment requested a determination that the cross-defendant owed a contractual duty to defend the cross-complainant (an issue of law). The substance of the motion requested the court find that the subcontractor had breached that duty (a factual determination).

Or where the notice advised the motion would [properly] preclude an expert witness from relying on the opinion of another expert who was not disclosed and would not be testifying…but where the motion sought to exclude the testimony of the properly disclosed expert which would have been based on photographs and measurements taken by the expert’s colleague at the scene and at the direction of the expert who would be testifying.

The moving party very likely floated the decoy duck in the hope that defense counsel would read the notice and, assuming that the motion was what it purported to be, i.e. a “slam dunk”, would decide to not oppose it… or perhaps neglect to read the cited (and mis-quoted) authority.

The following Tale clearly illustrates the importance of the detail.

 The defendant claimed to have stopped at the stop sign before accelerating through the intersection.  On the far side of, and at least one parked car beyond, the intersection, the plaintiff stepped off the curb between two cars and ran into the street to catch a bus which would stop at the island. The issue was whether the plaintiff ran into, or was struck by, the defendant’s vehicle. The point of impact was on the passenger side of the car, just behind the front fender.

 The decision hung on 4 seconds (according to the expert). If the defendant had not made the stop (a traffic violation) he would have probably arrived at the point of impact approximately 1-2 seconds before the plaintiff stepped off the curb and the plaintiff would have run into his car as the defendant passed him. On the other hand, if the plaintiff had stopped before accelerating through the intersection he would likely have struck the plaintiff – arriving at the point of impact approximately 1-2 seconds after the plaintiff stepped off the curb.

your editor suggests that you contact the entity and ask if it will agree to comply with a California subpoena. More often than not the entity will agree… and all you have to do is forward a copy of the subpoena with a confirming letter.

The process of preparing a request to the court in your jurisdiction to issue an out of state commission, then finding a local attorney in the jurisdiction where the entity is located to petition the court in that jurisdiction to issue a subpoena and then to serve the subpoena (professional courtesy is usually extended) can prove to be arduous, time consuming and costly – especially should the entity then decide to object to the subpoena!

but sometimes you can’t trust your own client! 

 A number of years ago your editor was representing the plaintiff in a dispute over an alleged theft of the plaintiff’s personal property by the defendant. During a break in the plaintiff’s deposition which was being taken in the defendant’s conference room (defense counsel was in-house had his office on the client’s premises) the client took your editor outside for a conference – advising that the conference room was bugged and the attorney would listen in to our conversation.

 In another case, your editor’s client was involved in a contract dispute. The client called your editor to advise he was taking the contract to the opposing party, who was also represented by an attorney, to have him sign it. The client called later that same day to say that the contract was signed. That case eventually resolved… but the client was not satisfied with the result and sued his attorney for professional malpractice, specifically unauthorized contact with a represented party! The defense to the claim rested on your editor’s notes of the client’s calls - advising he had taken the contract to the other party and persuaded him to sign it.