... 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.

It had been more than three years since plaintiff had filed the complaint with the court. The defendant had actual, as well as constructive, knowledge of the suit; she had appeared, filed an answer, propounded and answered written discovery. Shortly before the defendant’s deposition, the defendant advised her attorney she had never been served with the complaint or summons! [The failure to confirm that detail was a major “oops” on the attorney’s part].

Notwithstanding the plaintiff’s attorney’s several more or less compelling excuses for the delay to prosecute the case, i.e serve the defendant with the complaint and bring the case to trial within three years, including having to replace the office computers and case management system to make it Y2K compliant, and even though the defendant had not been “prejudiced” (the court disregarded the cost and time incurred in defending the action), the defendant’s motion for a dismissal for failure to timely serve the complaint and to diligently prosecute the case was granted!

… 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)

Your editor realized one day late that she had neglected to serve the expert witness demand. She called opposing counsel, who had also missed the deadline to serve the demand. They stipulated, which was confirmed in writing, to exchange demands that same day, and that the demand would be deemed timely served…

In another case, an attorney refused to grant an extension for the other party to respond to discovery, threatening to seek issue preclusion and terminating sanctions … when that attorney later needed an extension to respond to a motion for summary judgment, the request was denied.

 As a corollary to the above rule, attorneys and judges have a long memory and the legal community is a small community. The other attorneys in the courtroom, and the judge, will remember that you were apparently clueless about the case or arguments to be made, misrepresented the facts, reneged on an agreement, or insulted your opposing counsel …

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.

If your client is the defendant in the civil case heard in the afternoon by a judge who presides over misdemeanor cases in the morning, your client will very likely be presumed guilty. The case in point was a property damage case arising out of a motor vehicle accident, where the judge awarded to the plaintiff not only the cost of repair of the property, but also the diminished value of the vehicle, and costs.

 In another case where both parties adamantly refused to settle, at the pre-trial conference the judge denied all the defense motions in limine, without consideration of the merits – and told defense counsel that the case would have to settle. Since the case was not such as would justify an appeal, the parties settled –on terms virtually dictated by counsel for plaintiff

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.

 Or when your best friend is an overworked court clerk.

C.C.P. section 472(a) allows a pleading to be amended…after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party. The court in Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156 observed that all too often litigants who appear in propria persona deliberately attempt to capitalize upon their own ignorance or appearance of ignorance.

 A few years ago, a plaintiff appearing in pro per filed a complaint to which the defendant demurred. A few days before the hearing on the demurrer, plaintiff filed and served an amended complaint. Defendant filed a demurrer to the amended complaint, but a few days or hours before the hearing, (and without seeking leave of court) plaintiff filed and served a second (then third, fourth and fifth) amended complaint and the demurrer was denied – on the grounds an amended complaint had been filed. Approximately ½ hour before the hearing on the demurrer to the fifth amended complaint, plaintiff served the 6^th amended complaint on counsel and left the original at the court clerk’s counter for filing, but neglected to deliver a courtesy copy to the judge’s chambers. The sixth amended complaint was not filed and the demurrer to the fifth amended complaint was heard and sustained, without leave to amend. (plaintiff failed to appear at the hearing – trusting the demurrer would be denied).

The sixth amended complaint was subsequently discovered in a box beneath the court clerk’s counter when plaintiff sought to create the record for appeal.

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).

A workman was killed at a construction site.  The police began questioning a number of the other workers. Based on past brushes with the law, many of the workers were considered prime suspects. They were a motley crew:

The electrician was suspected of wire tapping once, but was never charged. The carpenter thought he was a stud.  He tried to frame another man one time. The glazier went to great panes to conceal his past. He still claims that he didn’t do anything; that he was framed. The painter had a brush with the law several years ago. The heating, ventilation and air conditioning contractor was known to pack heat.  He was arrested once but duct the charges. The mason was suspect because he gets stoned regularly. The cabinet maker is an accomplished counter fitter. The autopsy led the police to arrest the carpenter who confessed.  The evidence against him was irrefutable, because it was found that the workman, when he died, was hammered.

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.