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

Last month the California Supreme Court granted review in Coito v. Superior Court (2010) 182 Cal.App.4th 758.

In a 2-1 decision, the Fifth District Court of Appeal held in Coito that witness statements prepared or recorded by an attorney or his agent are not attorney work product and thus discoverable. The Coito majority rejected the contrary holding of the Third District Court of Appeal in Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214 that recorded witness statements taken by counsel are absolute work product because they would reveal counsel's impressions, conclusions, and opinions and thus are not discoverable.

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In determining what inferences to draw from the evidence against a party, the jury is permitted to consider a party's willful suppression of evidence. Evid. Code Section 413. In Thor v. Boska (2nd Dist. 1974) 38 Cal.App.3d 558, a doctor, who was sued for malpractice, failed to produce his original charts. His explanation was that, after copying the records verbatim to make them more legible, he must have thrown away the originals. The fact that "the defendant was unable to produce his original clinical record concerning his treatment of the plaintiff after he had been charged with malpractice, created a strong inference of consciousness of guilt on his part."

Today, it is increasingly more common for parties to suppress harmful evidence, such as email. If they do, their conduct is admissible at trial. We had a case where the chief executive officer removed back-up tapes of electronic data from the company's safe.  Neither the officer nor the company produced the tapes during discovery. At trial, the officer's removal of the tapes was powerful evidence that helped convince the jury to find fraud and award punitive damages.

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In today’s litigation practice, experts are frequently called upon to give their opinions. Even though experts are paid witnesses, their testimony is invaluable in educating judges and juries. The right or wrong expert is often the difference between winning and losing.

Unfortunately, however, parties and their attorneys often start their search for an expert too late and then settle on the first one who readily agrees with their position and is available on short notice. If this is how you or your attorney go about selecting experts, you are needlessly jeopardizing your chances of success.

The following suggestions for selecting an expert witness come from my years of experience as a trial lawyer in locating, preparing and examining expert witnesses:

• Start Your Search Early. By talking to experts, you may learn of problems with your case. Getting bad news early can save you a lot of time, money and aggravation. Furthermore, if you retain an expert before discovery is complete, he can make sure that you are requesting the right documents and asking the right deposition questions. You also want to win the race to retain the best expert for your case. Most importantly, you want to give your expert sufficient time to prepare.


• Credentials and Experience Are Extremely Important. The expert you select must have impeccable credentials (third world medical degrees will not do) and experience with similar cases. If your expert lacks either, your opponent will exploit your expert’s questionable credentials or lack of experience with the jury.


• Request Reports and Publications. Ask to see some of the reports that the prospective expert has prepared for similar cases. The reports will reveal whether the expert understands the issues and can explain his opinions in a clear and concise manner. Prior publications represent a minefield for prior inconsistent opinions. Therefore, make sure that you obtain and review all the prospective expert’s prior publications before selecting him.


• Give The Prospective Expert All the Information (Good and Bad). Tell the prospective expert all the information, especially the information that is unfavorable to your position. Withholding unfavorable information from your expert will only lead to disaster. When the unfavorable information comes out (and it will), your expert will have to choose between changing his opinion or defending the unreasonable. If your expert is not credible, then his testimony will not be useful to you.


• Meet In Person. Meet with the prospective expert in person. The expert’s appearance and demeanor are important. Is the expert prepared for the meeting? Is he comfortable stating his opinions? Can he explain them in a way that a jury will understand? How well does he respond to difficult questions that your opponent is likely to ask him?


• Check References and Call Opposing Counsel. Ask the prospective expert to give you the names of the attorneys involved in the most recent cases in which he testified. Call the attorneys who used the expert as well as the attorneys who deposed and cross-examined him. Find out what the attorneys on both sides thought of the expert.

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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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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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