TIP NO. 24 Ours is an adversarial legal system...
... 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).
TIP NO. 23 Your editor was once advised to never explain or make excuses…
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” …
Tip No. 22 Be certain of your facts when arguing a motion…
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.
Tip No. 21 Much is written and said about “The Art of the Deal” …
…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.
Tip No. 20 Sometimes even if it quacks like a duck and looks like a duck…it’s still not duck
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.
Tip No. 19 If you need to subpoena records from a third party out-of-state entity …
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!
Tip No. 18 A short lesson in fixing an “oops”...
...and a real life application of the doctrine of estoppel.
When an attorney misses the deadline to respond to a motion and judgment is taken against his client, C.C.P. section 473 provides a means for setting aside the judgment.
When an attorney is trying to negotiate a resolution to the dispute to avoid litigation and trusts the other side that says “We’re almost there…” and the statute of limitation runs, the attorney should invoke the doctrine of estoppel and file a motion for leave to file the complaint based on the holding in Carruth v. Fritch (1950) 36 Cal.2d 426, that one cannot justly or equitably cause his adversary to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought. The statute of limitations may never be used to assure the success of a fraud.
When the court simply gets it wrong, the attorney should consider a motion for reconsideration or a renewal of the original motion, or perhaps a writ (of review for example).
Tip No. 17 A useful Tip …
In the case of the claim for child support described in the Tales from the Trenches No. 17, the husband intentionally neglected to provide an address when he served his ex-wife with the papers for the court hearing on the claim for increased child support in California. It was your editor’s understanding that he claimed to be in mortal fear of his ex-wife - which would be the only proper grounds for such a ploy.
Your editor was fortunate to have found an experienced and knowledgeable process server. He advised that the papers should be “timely” served on the court clerk, upon which service would be deemed complete. The clerk then personally served the opposition papers on the ex-husband when the case was called and he acknowledged his presence.
[Code of Civil Procedure section 1011(b); California Rule of Court, rule 3.252].
TIP NO. 16 So, the jury was paying attention after all…
.. and decided the case on an issue apparently ignored, but certainly not addressed during trial, by counsel.
The case involved a claim for personal injuries arising out of a motor vehicle accident. The complaint was timely filed and was diligently prosecuted.
The case was defensed. But, when the jury was polled, counsel was advised the jury thought the plaintiff’s case was fraudulent because the accident had occurred approximately two years before the complaint was filed and the case was not brought to trial until two more years had passed!
Blame “LA Law” and “Law and Order” where a case is brought to trial before the one hour episode concludes. And yet, those television shows may well be the reason one person agreed to participate in the process and sit on the jury...and take it seriously enough to actually and seriously participate in deliberations.
The lesson: trial counsel should find a way to educate the jurors on the reasons for the delay in a case reaching the jury.
Tip No. 15 To paraphrase Shakespeare’s Hamlet “With prejudice” or “without prejudice” … that is the question
The term “without prejudice” sometimes means that there is no decision of the controversy on its merits. Thus, where a motion is denied “without prejudice” it is meant as a declaration that no rights or privileges of the party concerned are to be considered as waived or lost, except insofar as they may be expressly conceded or decided, and will prevent the decree of dismissal from operating as a bar to a subsequent suit on the same cause of action. Alternatively, the term "without prejudice" may mean that the decision was on the merits, on the grounds the moving party failed to satisfy the statutory requirements; however, the moving party is not precluded from pursuing another method to litigate the claims.
A dismissal “with prejudice” is an adjudication on the merits and final disposition, barring the right to bring or maintain an action on the same claim or cause; it is res judicata as to every matter litigated.
That being said, in practice a judgment of dismissal without qualifying words is presumed to be on the merits (i.e., with prejudice).
TIP NO. 14. Sound advice …
Sir Robert Wright Chief Justice of the King's Bench, in the Trial of the Seven Bishops in 1688, reportedly admonished the lawyers: “First settle what the case is, before you argue it.”
In Southern Calif. Enterprises v. D. N. & E. Walter & Co. (1947) 78 Cal.App.2d 750 the court held that a litigant cannot rely, nor may a decision be based, on previous opinions that are not pertinent by reason of dissimilarity of facts. Rules applicable to the decision in which they appear cannot be repeated in exemplification of a theory different from that to which they were applied in the case where the opinion was rendered.
In 1602, Lord Coke wrote in Blade's Case “He who will have advantage of precedents, ought to search for them at his peril…for, the Court will not search for them…[and if no] precedents are shewn, the Court ought to adjudge according to law and reason.”
On that very issue, the court recently held in DiGenova v. State Board of Education (1962) 57 Cal.2d 167 that the doctrine of the law of the case does not extend to points of law which might have been but were not presented and determined… and again in People v. Ceballos (1974) 12 Cal.3d 470 the court held that a case is not authority for an issue not raised by its facts nor considered.
TIP NO. 13 To paraphrase the title of a jazz song by Louis Jordan – Is it is or is it ain’t the right motion…
The practice guides treat each motion as a discrete thing – but they are not as the case law clearly indicates. The appropriate motion is determined by the facts of the case… or by the equities; or by the jurisdiction conferred by statute; or the court’s inherent discretion.
For example, a party requesting that the court reconsider a ruling has the option of a motion for reconsideration, a 473 motion, or a writ of review or mandate. The court has discretion to “construe” a motion for reconsideration as a request to renew the original motion, or as an analogous motion for a new trial or a motion to vacate… A complaint for declaratory relief and petition for a writ of mandate may be combined in a single action.
The court in Passavanti v. Williams (1990) 225 Cal.App.3d 1602 suggested that assuming the trial court has the authority to consider a motion regardless of its label, for the benefit of the opposing party and for purposes of appellate review, the court should clearly indicate its intention to do so and to clearly identify the motion it is considering.
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