California Litigation Blog : California Business Litigation Lawyer & Attorney : Jeffrey Huron Law Firm : CA Real Estate Law & Contract Disputes

In addition to doing traditional legal research, I regularly search the Internet.  One of my favorite websites is California Discovery & Privilege Law hosted by Richard E. Best, a retired San Francisco Superior Court Commissioner.  As a bench officer, Commissioner Best presided over discovery disputes for twenty years.  Commissioner Best currently serves as a private discovery referee and consultant.  Make sure to bookmark this site; it’s a great reference for meet and confer letters and discovery motions.

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The reality in litigation is:  "The law is whatever the judge says it is."  The chances of getting an unfavorable decision reversed by the Court of Appeal are slim.  According to the 2007 Court Statistics Report, the California Court of Appeal affirmed 88% of decisions made by trial judges between 2005 and 2006.  Therefore, it is important to know your judge.

You can find information about judges on the Internet, by word of mouth, from bar associations such as the Los Angeles County Bar Association, and in Judicial Profiles published by the Daily Journal.  You can also learn valuable information about your judge by researching his decisions which have been appealed. 

If you have never appeared before the judge assigned to your case, you should make a point of observing him and talking to attorneys who have appeared before him.  What is the judge's background?  What is his political bent?  What is his temperament?  How does he manage his calendar?  Does he push cases to settle or trial?  What is his attitude towards discovery disputes, sanctions, and motions for summary judgment?

You may decide for obvious reasons that you do not want a judge who worked as a defense lawyer and insurance adjuster to preside over your client's bad faith case.  You have only ten days to disqualify the judge if he is not right for your case.  Of course, the risk in disqualifying the judge is that you could end up with a worse judge for your case.  However, on the rare occasions when we have disqualified judges, we always have been fortunate to receive a better judge for our case than the one we disqualified.  If you disqualify your judge and end up drawing a worse one, there is always the possibility that your adversary will use her peremptory challenge to disqualify the newly assigned judge.  For these reasons, the risk of receiving a worse judge should not deter you from disqualifying a judge that is wrong for your case. 

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It should not surprise you, but your opponent will play hide the ball and avoid getting pinned down.  Yet many attorneys are not tenacious or creative enough about ensuring victory.  Litigators must think outside the box!  How can you get evidence you need to win your case?  There are always creative ways to locate evidence that your opponent fails to produce.  Here are two examples.

1. We had a case where it was critical to show that the plaintiff controlled a corporation that had received funds as a result of a lender's mistake.  At his deposition, plaintiff testified that he had not heard of the corporation and had not received money from it.  Most people bank near their homes or work.  We identified the banks within a mile of the plaintiff's office and then subpoenaed records pertaining to the corporation from each of them.  Bingo!  One of the banks produced records, including checks signed by the plaintiff to himself, his wife, lawyer, etc.  Case over.
2. A lawyer whose client died in a helicopter crash sued the helicopter company, alleging that a defective part caused the crash.  The company did not produce any documents helpful to plaintiff's case.  The plaintiff's lawyer researched other helicopter accidents and learned of a similar accident, which led to the discovery of a prior lawsuit against the company in another state.  After tracking down the other plaintiff's lawyer, obtaining and sifting through old files, there it was - an internal company memorandum recommending a recall of the part.  The result: a $14 million verdict in a case that the lawyer would have otherwise lost.

Tenacity and creative thinking pay off.  Are you doing enough to win your case?

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Approximately ninety percent of all litigation cases settle prior to trial.  Here are 4 tips to help you get the best settlement for your case.

1. Identify Your Opponent's Motive. A successful settlement involves persuasion. Its easier to persuade your opponent when you know his or her motives. Why did the plaintiff sue? Why is the defendant unwilling to settle? In Doctors Say 'I'm Sorry' Before 'See You In Court,' the New York Times reported that hospitals are starting to disclose medical errors. Why? Disclosure makes patients less indignant, less concerned that mistakes will happen again, and thus less likely to sue. At the University of Illinois, only one patient out of 37 filed suit when its hospital acknowledged a mistake and apologized! It pays to discover your opponent's motive.
2. Define Your Litigation Objectives.  Think about settlement at the outset, not after litigating the case for months!  Identify your goals:  to obtain a cost-effective result? renegotiate or terminate a contract? prevent future harm? uphold your principles? avoid becoming an easy litigation target? or some other reason?  Once you have identified your objectives, all litigation tactics should be geared towards achieving them.
3. Realistically Evaluate Your Case.  Stay objective.  A recent study of cases that went to trial between 2002 and 2005 found that plaintiffs received less than the settlement offers they passed up 61% of the time.  Defendants ended up paying more after going to trial 24% of the time.  In only 15% of the cases studied were both sides right to go to trial.  "Study Finds Settling Is Better Than Going to Trial."  For these reasons, make sure you identify the elements of each claim and defense.  Do you have or can you obtain the evidence to establish the elements you need to succeed?  What is your biggest weakness and can it be overcome?  What are your opponent's strengths and can you overcome them?  If you lose your objectivity, it will cost you!  
4. Negotiate Strongly.  Always negotiate from a position of strength.  First, prepare for the settlement conference or mediation just as you would for trial, even if you think there is little chance for settlement.  Second, be creative at the settlement conference or mediation.  Use technology such as computer presentations and video clips of key deposition testimony so that your opponent can visualize the strength of your case.  Third, include in your settlement offer terms that you can easily give up in exchange for the terms you do want during the negotiation.  It is important to create a well-considered settlement plan to negotiate the best settlement. 

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With the economy worsening, what can you do to expedite collection of money owed to your client?  File a lawsuit and immediately apply for a right to attach order.  A right to attach order is a prejudment remedy that may be obtained on 16 court days' notice or upon 24 hours' notice in special circumstances.

Applying for a right to attach order has several advantages.  The application encourages defendants to settle by threatening to deprive them of the use of valuable assets during litigation.  The application may also trigger defendants suffering from financial hardship to file bankruptcy before you waste time and money obtaining a judgment, which then becomes worthless.

The court will issue an attachment order when (1) there is a claim for money pursuant to a commercial contract, (2) the claim is for a fixed amount or the amount can be easily determined, and (3) the claim is likely to succeed.  (Code of Civ. Proc. Section 483.010.)  The contract does not even have to be a writing; it can be an oral agreement or simply implied from commercial conduct between the parties.  This means that you can obtain a right to attach order for the breach of a loan, lease, employment contract, partnership agreement, and for non-payment of invoices for goods and services.

An attachment entitles you to attach any property held by a corporation, partnership or association.  You may also attach personal property such a bank accounts, accounts receivable, equipment and inventory, community property, negotiable instruments and securities, and money kept at a business.  (Code of Civ. Proc. Section 487.010.)  The Sheriff holds all the property seized until the case is resolved.  Because the Sheriff cannot hold real property owned by the defendant, you can record the attachment order, which creates a lien on real property owned by the defendant, preventing him from transfering ownership to another person.

Prior to applying for an attachment order, you can hire a private investigator (such as Transwest Investigations, Inc.) to locate and identify potential assets to determine whether it makes sense to seek an attachment.  Investigators charge between $500 and $1500 for such services.  A less expensive alternative is to do the search yourself, using websites, such as KnowX.  Even if you don't do your own investigation, after the court issues a right to attach order, the defendant must tell you the identity, location and value of property in which he has an interest.  (Code of Civ. Proc. Section 485.230.)

The defendant's attached property is security for the satisfaction of your future judgment.  Without an attachment, the defendant is free to conceal, encumber, and transfer any assets before you obtain a judgment.  Therefore, if you have a meritorious commercial contract claim, it is a mistake not to seek a right to attach order.

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California law allows an adverse party to use a deposition of a party for any purpose during trial.  See, Code of Civ. Proc. Sec. 2025.620(b) (pdf.).  If you videotape your opponent's deposition, this means that you can select and play deposition clips for the jury to watch during your: (1) opening statement; (2) turn to introduce evidence without any opportunity for your opponent to respond; and closing argument.  Imagine:  jurors get to hear and see your opponent at his or her worst, as if they were watching an entertaining YouTube clip, which most of them do frequently.

Without videotape of your opponent's deposition, you have nothing but a cold, lifeless transcript to read the jurors to sleep.  The videotape not only gives jurors something to hear, but also something to see.  For example, where a phrase like, "I don't recall," looks boring and standard on a page, video-recorded testimony of the same phrase could be very damaging to your opponent.  A video could show your opponent immediately and without hesitation responding aggressively to an important question with, "I don't recall," as if on cue.  Or, the video could record your opponent deliberating at length and then looking at his attorney, all the while fidgeting in his seat, before apologetically responding, "I don't recall."  Without videotape, all of this non-verbal language is lost forever because the transcript is nothing but boring words on a page - one more among many boring pages and documents shown to jurors during trials.

In his book, Blink, Malcolm Gladwell, supports a claim by the psychologist Paul Ekman that a person's face while speaking can reveal whether he is lying.  Gladwell uses several examples to demonstrate, that despite our best efforts to suppress involuntary facial responses, our facial expressions often give us away.  One example, occurred during a press conference given by Harold "Kim" Philpy, who had not yet been revealed as a Soviet spy.  Twice after being asked serious questions about whether he had committed treason, he smirked like "the cat who ate the canary." 

According to Gladwell, we are face readers from the day we are born.  As babies we learn to read our parents' faces for acceptance, unhappiness and fear.  By adulthood, we instinctively read faces for clues. 

In addition to Gladwell's book, Blink, Fox Broadcasting is airing a new television series (Lie to Me) this month based on a specialist who can read clues in the human face, body and voice to expose the truth.

A videotaped deposition allows the jury to read your opponent's face -- during a deposition that he never thought the jury would see.  When reviewing your opponent's video, you must concentrate on your opponent's face for "tell-tale" signs.  If you catch your opponent smirking, glaring, worried, hesitating, confused, etc., it would be a mistake not to share it with the jury.

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