Tadlock Tips

Tip No. 12 There is a saying that the devil is in the detail. . .

... the importance of the detail is sometimes what is not in the records. 

 A medical records summary should not include only the records post-accident that refer to the accident related-injuries. The attorney needs to know what is not in the records: i.e. whether the plaintiff is a hypochondriac or a stoic – did he go to the ER for every sniffle or bruise or did he never go to the doctor. You want to know not only what the accident-related injuries and treatment were, but whether the plaintiff had a pre-existing medical condition, whether or not it contributed to the claimed injuries.

The corollary to the above rule, is the rule that one should not have to go back to the actual records to see what was omitted  – except perhaps to confirm that the handwriting is illegible and the words undecipherable. The reviewer will of course exercise a degree of discretion in determining what should be included in the summary, but it is more than a little embarrassing to have your expert (who reviewed the records) mention a report that whoever prepared the summary deemed not important and neglected to include.

TIP NO. 11. So as the Run-DMC song goes - did “You talk too much…”

… and cause your special appearance to morph into a general appearance?  

 Whether an appearance is general or special is determined by the character of the relief sought and not by the intention of the party that it shall or shall not operate as a general or special appearance. The statement of a defendant or party that he is making a special appearance is not necessarily conclusive.

The test is - did the party appear and object only to consideration of the case or any procedure in it because the court had not acquired jurisdiction over the person of the defendant or party, then the appearance is special. If, however, he appeared and raised any other question or asked for any relief which could be given only to a party in the pending case, or which itself would be a regular proceeding in the case, it is a general appearance, regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special.  (Judson v. Superior Court (1942) 21 Cal.2d 11, 13)

TIP NO. 10. When you fall on your sword

You will “fall on your sword” when you take personal responsibility for an error or other lapse. Plutarch so described Brutus’ suicide when he took responsibility for his part in the assassination of Julius Cesar.

 However, if you do decide to fall on your sword, you should be sure that it is a sword you are prepared to die on… for it will be accomplished in front of your peers in court, and become a matter of public record as a part of the court’s written record of the case.

Tip No. 9 When custom and practice trump the language of the statute…

C.C.P. section 998 provides that if the statutory offer to compromise is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. However in practice if the offer is accepted, the parties usually execute a settlement agreement and file a dismissal – avoiding the entry of a judgment into the record.

 C.C.P. section 998 provides that an offer is either accepted, or not, by the offeree. The offer is not revoked by a counteroffer and the statute does not provide for the withdrawal of an offer – although in practice it is sometimes done. The offeree will sometimes serve an objection to the offer; although it has no legal effect, the intention is to instruct the offeror about the defects of the offer, thereby providing the offeror with grounds to withdraw and revise the offer or to settle the case - where simply letting the offer lapse would not.

Tip No. 8 Avoid having to state an inconvenient truth

I.e. the client’s contentions to the Form Interrogatories which ask do you contend the plaintiff was not injured in the subject incident, or that the nature and extent of the damages claimed by plaintiff were unreasonable or not caused by the incident?

 If you answer that discovery has just been initiated and the interrogatory is premature – your client will very likely be served with, and have to answer, a supplemental interrogatory.

 Consider framing the answer as an objection on the grounds the interrogatory seeks information protected by the attorney‑client privilege and work product rule, and that it calls for an expert opinion which the answering defendant is not qualified to give.  Adding that without waiving such objections, the defendant is making no such contention at the present time, but reserves the right to amend his response after further discovery has been conducted and/or completed (i.e. you have retained and consulted with an expert witness).

Tip No. 7 Bite your tongue!

Or never write anything you don’t want broadcast in open court.

 You can be sure that if opposing counsel can make you angry enough to lose your cool, he’ll take advantage of it in a motion which he will most assuredly find occasion to read in open court before the judge and not a few of your peers.

A corollary to the above rule is that civility is not just for losers. Insulting the other party or counsel in a brief or argument only distracts from the merits of the legal argument – unless of course you don’t have any meritorious legal arguments, in which case the lack of civility will only amplify that fact.

Tip No. 6 So you won the motion…now what?

As the prevailing party, or sometimes even if not, it is counsel’s responsibility to prepare a proposed order following a hearing on a motion.

 After the date of the hearing, whether or not there has been argument, the tentative ruling will be taken down. Usually, in the absence of an order prepared by counsel, the court’s register of actions will state only “motion granted” or “motion denied” – without identifying who brought the motion or the issue decided. This can be especially problematic if several motions in the same case were heard on the same date.

 Without your order identifying the motion and stating the grounds for, and the language of, the ruling, the ruling will be to all intents and purposes without legal effect (i.e. res judicata or collateral estoppel).


Tip No. 5 The problem with amending the complaint…

It is elementary that when an amended complaint is filed the original complaint ceases to be the complaint in the action. It is entirely superseded by the amended complaint.  (W. H. Marston Co. v. Kochritz (1926) 80 Cal. App. 352, 361).

However, facts once alleged cannot be withdrawn from consideration by merely filing an amended pleading omitting them without explanation. Accordingly, the court may be fully justified in examining and considering the original complaint! (Neal v. Bank of America (1949) 93 Cal.App.2d 678, 682).  As the court explained in Silica Brick Co. v. Winsor a party should not be permitted to allege as ultimate facts [in an amended pleading] matters at variance with facts to which he had previously sworn.

Tip No. 4. Some things don’t change…

In the 21st century we show video recorded depositions to the jury and use power point presentations to illustrate our arguments at trial… but counsel should nevertheless remember that “when the Court have delivered their opinion, counsel should sit down and not dispute it any further” as Chief Justice Jefferies advised counsel in the Case of Titus Gates (1685). In 1688, Sir Robert Wright, Chief Justice of the King's Bench at the Trial of the Seven Bishops admonished counsel to “First settle what the case is, before it be either proved or argued.” The Chief Justice further admonished counsel to “Produce that which is evidence, and not spend our time on that which is not.” And finally warned, “If you do say anything more, pray let me advise you one thing: don't say the same thing over and over again, for after so much time spent, it is irksome to all company as well as to me.”

Tip No. 3

Be sure you know the rules of engagement…

Don’t put yourself in the position of having to defend the form of your pleading to the court, rather than the substance, and have your motion or request denied or rejected because you used a traditional pleading instead of a Judicial Council Form. Determine if the court prefers, or requires, a Judicial Council form: the court might still accept a traditional pleading for an acknowledgement of satisfaction of judgment; however, a petition for the court’s approval of a minor’s compromise must be submitted on a Judicial Council form (perhaps because it is heard in the Probate Court).

 In the event the case takes a detour over to the Workers Compensation Appeals Board or Bankruptcy Court, they have their own peculiar forms... and rules of engagement.

Tip No. 2

Shall” does not always mean “shall”...

When bringing a motion beware of relying on the term “shall” in a statute; it is not always interpreted by the court as a directive that the court “must” do something, as your editor discovered to her chagrin when she relied on the provisions of the statute that the court “shall” postpone a trial … for a period not to exceed 30 days, when all attorneys of record of parties who have appeared in the action agree in writing to such postponement. At argument on the motion directed by the court, the judge denied the continuance, on the grounds he had the discretion to do so.

Tip No. 1

The attorney really should be aware of the nuances of context.

Is the transaction between savvy businessmen or an insurer and individual insured?  What were the trespassing kids doing on the property, skateboarding?  Was the plaintiff contributorily negligent, or did he assume the risk inherent in the activity?