But he (or she) is lying!

I have to admit that I am getting caught up in Google+.  It is much more interactive than this blog or even Facebook, and I have taken to following people with many different interests.  Some say that blogs will be a thing of the past and most "blog" entries will migrate to services such as Google+.  But I am here for now.

I was watching another round of oral argument before the court of appeal last week when one of the attorneys made a reference to opposing counsel.  The justice stopped the attorney, asked what he meant by the remark, and chastised him for making the reference.  It wasn't offensive by any means, but the attorney had used the opposing counsel as an example when he might have used any other California resident.

I often remind attorneys not to make personal attacks, not even a mention that appears to be a personal attack, on opposing counsel.  The courts just don't like it.  No matter how many times I have raised this point, attorneys continue to make personal attacks.  It puts the court in the uneviable position of trying to decide just who is lying.

Okay, but what about when the other side is dishonest, or shall I say, just out and out lying?  Sorry, I think you need to banish the word "liar" from your vocabulary.  I like to think the other side has forgotten, overlooked, or even is suffering from temporary amnesia.  We often don't see the same event eye-to-eye.  First, you need to consider whether the alleged lie could be the result of a different interpretation of the same set of facts.  Second, give the person the benefit of the doubt that maybe he or she misheard or misinterpreted the communication.

Okay, so we've eliminated all of that, and yes, the attorney is really just lying.  Sometimes it does happen, although I suspect it might happen less than we believe it does.  If the truth can be revealed by resorting to facts, then by process of elimination, the attorney is wrong.  Leave it to the court to suspect he or she is lying.  If you have to write a declaration countering what has been presented as the truth, present your version, stating your belief that opposing counsel is in error or has possibly overlooked that letter or later conversion.  If you do it in an objective style, then you will increase your credibility without "attacking" the other attorney.

Here's an example:  several years ago I was blasted in a Respondent's Brief for not addressing  in my Appellant's Opening Brief a case cited below at the trial level.  He argued that it was proof I was trying to pull a fast one or worse, an acknowledgment that my position sucked (a legal term).  I thought I had mentioned the case.  It was there in the table of contents.  When I went through the brief, I could see that one page was missing, which contained a discussion of the case.  I was able to fix the omission and dealt with the case.  I was apologetic about the omission and thanked opposing counsel for pointing out an error that I could correct.  I did not resort to any personal attacks, but I think he looked badly for engaging in such an aggressive attack only to be proven that I was not avoiding the case.




A nice review on An Appeal to Reason

Fellow appellate attorney Mary-Christine (or affectionately known as M.C.) Sungaila posted a very nice book review of An Appeal to Reason, on

I do appreciate her recommendation to pick up my book, along with a few others, for your summer reading but I am not sure I would ask anyone to go that far.  I am a big advocate of balance in one's life and find that far too many attorneys are working almost round the clock.  The new social media does not make it any easier because we attorneys are now so accessible.  I have even read about the lack of sleep and insomnia experienced by attorneys who cannot "shut off their minds" at the end of the night.  I would much rather take advantage of a well-rested attorney who can then learn some valuable pointers from my book.  Read it first thing in the morning over a steaming cup of coffee (skip the donut, please!) or maybe at the end of the day.  But for summer reading at the beach?  My advice is to put the book down, jump into our California surf and play with your children or loved ones.  


A word of warning about frivolous appeals

In Foust v. San Jose Construction Co. (2011) 198 Cal.App.4th 181, the plaintiff employee appealed from a judgment that found the defendant employer had not breached a written employment contract.  The plaintiff argued the trial court erred in finding his contract was subsequently modified.  The plaintiff elected to proceed with the appeal from a three-day trial without a reporter's transcript and designated only a partial clerk's transcript.  The defendant brought a motion for sanctions.

The appellate court found that plaintiff's showing on appeal was insufficient and the appeal was frivolous.  Without a reporter's transcripts or the exhibits presented below, the appellate court could not undertake a meaningful review of plaintiff's argument on appeal.   It stated, "[Plaintiff] seems to want this court to reevaluate his credibility and reweigh the evidence presented below, but we can do neither."  (Id. at p. 188.)   The court also noted,  "Generally, appellants in ordinary civil appeals must provide a reporter's transcript at their own expense . . . In lieu of a reporter's transcript, an appellant may submit an agreed or settled statement."  (Id. at p. 186.)

The appellate court noted that plaintiff argued the evidence below was insufficient, but elected to proceed without a reporter's transcript.  The lower court's findings were inconsistent with plaintiff's argument, another reason the appellate court wanted to see the reporter's transcript and exhibits. (The trial court also noted that plaintiff's testimony was not credible, another nail in the coffin.)

The appellate court concluded that because plaintiff's appeal was without merit, this finding supported defendant's claim the appeal was filed for an improper purpose.  Defendant requested $8,743 in sanctions, representing the attorney's fees and costs in defending the appeal.  Not wanting to be left out, the appellate court also ordered that sanctions be paid directly to the clerk of the appellate court to compensate the state for the cost of processing the appeal.  The total award was $8,743 payable to the defendant and $6,000 payable to the court, for a total of $14,743, not to mention the attorney's fees and costs incurred by the plaintiff in pursuing this appeal.

Now it could be that the appeal was brought to harass defendant San Jose Construction, but it might also be that the plaintiff was either trying to save money rather than ordering the reporter's transcripts of the entire trial and by preparing an abbreviated clerk's transcript, or that the plaintiff was intentionally trying to hide the true facts from the court.  Clients will often want to reduce the high costs of obtaining a full reporter's transcript, but the appellate attorney provides an incomplete record at his or her peril.  This client has gained nothing and lost more money by pursuing an appeal without a meaningful record.



A few new appellate decisions before Labor Day

The appellate world has been rather busy lately.  Consider the following:

      In Stinnett v. Tam, 2011 Cal.App. LEXIS 1153, the Fifth Appellate District, the plaintiff challenged the MICRA statute in Civil Code 3333.2, which limits "non-economic" damages to $250,000 in any action against a health care provider based on professional negligence.  The court reduced a $6 million non-economic damage award.  The plaintiff argued the reduction violated her right to equal protection, as well as her right to a jury trial.  The court found these arguments to be without merit and affirmed the judgment.

      Okay, I couldn't resist In re Forchion, 2011 Cal.App. LEXIS 1144, in which the Second Appellate District was presented with the issue of whether an individual can change his name to the name of his web site, including the .com.  The petitioner, Robert Edward Forchion, Jr., who manages a Rastafarian temple in Los Angeles and operates a medical marijuana dispensary, wanted to change his name, consistent with his national reputation, to  He first tried to change his name in New Jersey, but that state said no.  The court noted that a name change could last indefinitely, but petitioner might lose his domain name for various reasons.  If someone obtained that domain name later, then petitioner's personal name might result in confusion.  I'll bet that is the first time a name change has been denied for a business reason.  The court stated, "In sum, personal names and domain names should not overlap; they belong in distinct realms.  Domain names were created for use on the Internet and should be limtied to assisting a user in finding a desired Web site.  By the same token, we should not treat a peson as part of a domain."  The court also indicated that a name change to NJWeedman, without the .com, would meet the same result.

     In Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, a case that has been litigated and appealed on several occasions, the parties were back in court after a jury awarded the plaintiff $13.8 million in punitive damages.  A jury had previously awarded $850,000 in compensatory damages.  The court upheld the punitive damage award based on Philip Morris's conduct in intentionally deceiving the public for several decades concerning the adverse health effects of cigarettes, formulating them to make the cigarettes more addictive, and aggressively advertising to youths.  The award is approximately 16 times the compensatory award and was not considered constitutionally excessive.  This case will probably give plaintiff's attorneys some hope that not all courts are moving toward a 1:1 ratio with compensatory damages.

       In Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 2011 Cal.App. LEXIS 1117,  the plaintiff sued over the proposed approval of a new shopping center.  While the appeal was pending, the project was abandoned and the appeal became moot.  In considering whether to abandon the appeal, the court of appeal held a dismissal of an appeal constitutes an affirmance of the lower court's ruling.  Maybe not such a good idea as the judgment could have an effect on future litigaiton.  The better solution was to reverse based on mootness, with directions to the trial court to dismiss the complaint.

That's enough for now.  Time to start the Labor Day Weekend.  Enjoy!






Howell v. Hamilton Meats arrives with a dull thud

Personal injury attorneys have been anxiously awaiting for the California Supreme Court's decision in Howell v. Hamilton Meats & Provisions, Inc. (2011), No. S179115.  That decision arrived on August 17, 2011 and the collective groans of plaintiff's attorneys could be heard across the state. 

The issue in Howell was whether an injured person may recover an undiscounted amount in a medical bill as economic damages where the provider accepts less than full payment pursuant to a preexisting contract with the injured person's health insurer.  Under the collateral source rule, the plaintiff may recover the amounts her insurer actually paid.  The court held that the collateral source rule does not apply to preclude economic damages which the plaintiff never incurred or were never paid to the providers. 

Here are a few snippets:

1.  The Court agreed with the Hanif court that a plaintiff may recover as economic damages no more than the reasonable value of the medical services and is not entitled to recover the reasonable value if the actual loss was less.  Damages must be both reasonable and incurred, and this rule applies in the context of situations where plaintiff's health insurer has obtained a discount for the services or payments made.  Thus, the plaintiff is entitled to recover the lesser amount of (1) the amount paid or incurred for medical services, and (2) the reasonable value of the services.

2.  Plaintiff did not "incur" liability for the full amount of the medical bills because the discounts were in place pursuant to a pre-existing agreement that existed prior to plaintiff's injury.  Since the plaintiff never incurred the full bill, plaintiff should not recover it as an economic loss.  (The result would be different if the plaintiff incurred the full liability but it was reduced as a gratuitious undertaking.)

3.  The court discussed the pricing of medical services, noting that even the "full" price does not necessarily reflect the real value of these services.  It concluded that the tortfeasor's payment of the amounts actually paid will not result in a windfall to the tortfeasor nor will it deter a tortfeasor from engaging in risky conduct.

4.  The plaintiff still will receive the benefit of her foresight in obtaining insurance coverage and in paying premiums.  Had she been uninsured, she would have had to pay the higher amount, but because her insurer had the power to negotiate a lower sum, she benefited from it.  The "negotiation" was not done as a result of her injuries caused by the tortfeasor, but as the result of the insurer's commercial advantage and way of doing business.  In fact, it is the insurance company, and not the plaintiff, who benefits from the negotiated price differential.

5.  The court concluded by stating it was not altering the collateral source rule as articulated in Helfend and the Restatement.  The court concluded the situation involved in Howell  does not come within the collateral source rule.

6.  The premiums paid by the plaintiff are inadmissible at trial.

7.  If the jury hears evidence of the amount accepted as full payment by the medical provider but awards a greater sum as damages for past medical expenses, the defendant can move for a new trial on the grounds of excessive damages.  In granting the new trial motion, the trial court may permit the plaintiff to choose between accepted the reduced damages or having a new trial.

Justice Klein dissented, concluding that Howell should be allowed to recover the reasonable value or market value of medical services, as determined by an expert, putting her in the same situation as an uninsured plaintiff or in cases where the medical services had been donated.  She argued that "Howell is left in a worse postiion than an ininsured individual or one who was a donee of medical sercies, persons who are entitled to recover the full reasonable value of their medical care."  She also opined that Howell obtained the benefit of coverage by virtue of her payment of premiums and she was entitled to that benefit.  As has been argued in the past, Justice Klein also believes that the majority rule represents a windfall to the torfeasor, who is underdeterred in his or her future conduct.  Conversely, the plaintiff would not obtain a windfall as recovery was limited to the reasonable cost of care. 

The opinion suggests that only uninsured persons pay the full amount of medical bills, while some others may receive a "gift" after injury.  Those persons may be entitled to receive the full amount of the hospital bills; however, their recovery would be limited by the reasonableness of those costs.  In addition, uninsured persons who were unsuccessful at trial would ultimately pay the highest bill without redress. 

Justice Klein also notes that California has aligned itself with the minority view in the United States.  She notes that the majority of courts allow a plaintiff to recover the reasonable value of their expenses without limitation to the amount they pay or that third parties pay on their behalf.  (Rest. 2d Torts, sec. 924.)

The opinion is rather long and covers a lot of territory.  I have tried to summarize some of the principles here, but perhaps anyone practicing in this area should take the time to read Howell.