Newdorf Legal wins unanimous jury verdict for City of Richmond in Taser lawsuit

SAN FRANCISCO — A unanimous federal court jury cleared the City of Richmond and one of its police officers of wrongdoing in connection with the use of a Taser to make an arrest. The plaintiff, Andre Little, accused the officer of violating policies and using excessive force in a federal civil rights lawsuit. After a week-long trial, on March 31, 2015, the jury returned a 7-0 verdict in favor of the City and the officer.

Police arrested Mr. Little after he refused to move away from an area where there was an active police investigation. Evidence at the trial showed that Mr. Little physically resisted arrest and that the officer followed the Richmond Police Department’s policy and training. “After the verdict, jurors told the officer that he did nothing wrong,” said the City’s lead defense lawyer, David Newdorf.

Richmond Police Chief Chris Magnus praises the jury’s verdict

Richmond Police Chief Chris Magnus said he was pleased with the jury’s decision, adding that the officer demonstrated patience and handled a difficult situation “in exactly the way he was trained.”

“There are times when the judicious use of force is entirely appropriate and necessary, and this was one of those cases, so it’s gratifying to see that the jury agreed.” Richmond Police Chief Chris Magnus

David Newdorf discusses police misconduct and civil rights lawsuits

Watch David Newdorf discuss police misconduct lawsuits in video interviews on vimeo.com and ReelLawyers.com.

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, municipal law and civil rights.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf has been listed each year since 2011 in Northern California Super Lawyers magazine, an honor reserved every year for no more than 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

 

Prisoner scoops the media with an exclusive Death Row interview with the “Trailside Killer.”

A California prisoner scooped the local and national media by obtaining an exclusive 30-minute face-to-face interview with one of California’s most notorious serial killers. Writing for the San Quentin News, prisoner/journalist Boston Woodard interviewed fellow inmate David Carpenter, a.k.a. the Trailside Killer, for the July 2013 issue of the inmate-published newspaper. Carpenter was convicted of killing nine victims from 1979 to 1981, mainly women, on Northern California hiking trails. As far as I can tell, this was Carpenter’s first interview in several decades. More notably, it was one of only a handful of interviews from California’s Death Row in the past decade.

How did Woodard do it? No doubt, he is a tenacious reporter. (Disclosure: I represent Mr. Woodard in an ongoing lawsuit over claims that prison officials retaliated against him because they did not like an article he wrote that was critical of prison officials.)

Regarding this story, however, being a prisoner may have worked to Woodard’s advantage. Access to California’s Death Row by outsiders, including journalists, is severely limited. Only one outside journalist in recent years has interviewed Death Row inmates in person on Death Row. She had to get approval from the top official at the California Department of Corrections and Rehabilitation. Under California prison regulations, she was limited to impromptu interviews with “random” prisoners who agreed to talk. Those regulations do not allow journalists to set up face-to-face interviews with specific inmates.

Since media limitations were adopted in the 1990s, very few journalists have had face-to-face interviews with the more notorious residents of Death Row. Regulations still allow prisoners to correspond with or speak to journalists by telephone.  Some journalists have also gained access by getting a prisoner to add him or her to the prisoner’s visiting list, just like a friend or family member.

Not that prisoners get free reign to report whatever and wherever they choose inside the institution. Prison officials had to approve Woodard’s interview and the resulting story that ran in the San Quentin News. The story was picked up by a small community newspaper based in Fresno, Calif., that runs many of Woodard’s stories about prison life. So far, the mainstream press hasn’t picked it up — notwithstanding some interesting tidbits.

Here’s a short excerpt from the article, in which Carpenter maintains that he was railroaded by prosecutors and biased jurors:

To close the interview, Carpenter was asked, “If and when authorities ever catch the real Trailside Killer, what do you hope happens to that person?”

Carpenter’s response was, “I hope he gets a fair trial.”

Does this story signal a trend toward greater transparency and media access to California’s prisons? I think it is too soon to say.  At a minimum, the officials who green-lighted Woodard’s story deserve credit for allowing it.

This is a welcome change compared to events of the recent past. Legislative efforts to relax media restrictions stalled in 2012. And Woodard has had his share of trouble from prison guards and administrators resulting from his writing about prison life.  He has written frequently about the obstacles he’s faced, which included being thrown in solitary confinement and removed from his job as the editor of a prisoner newspaper (at a different prison). Some of Woodard’s articles have been collected in an anthology titled Inside California’s Broken Prison System.

Woodard’s current lawsuit, Woodard v. Haviland, Case No. 11-CV-01807-LKK-JFM, is pending in U.S. District Court for the Eastern District of California.

Video Class: How to Prepare Your Client for Deposition

I’ve written about and presented seminars and webinars on numerous deposition topics. One of the most useful subjects, both for lawyers and their clients, has been preparing to give testimony at a deposition. Proper preparation of the witness can reduce anxiety, improve performance and dramatically affect litigation outcomes.

Deposition today is often the closest a client will get to a “day in court,” as fewer and fewer cases go to trial. The deposition is usually the first time that the opposition will meet and evaluate your client – and formulate decisions about how to resolve the case.  The opposition will be looking to uncover and exploit any inconsistencies, improbabilities, weaknesses, and flaws present in your client’s testimony and your case.  One mistake at this crucial point in the litigation can break your client’s case.

For an in-depth look at how to prepare your witness, check out my one-hour video class: “How to Prepare Your Client for Deposition.” Now available in streaming video from AttorneyCredits.com. Although geared for lawyers,  if you are facing your own deposition, you may find the advice useful.

Lawyers Praise “How to Prepare Your Client for Deposition”

After almost one year on line, lawyers have given this video class high marks. Here are some comments.

• “Very helpful! I would say the substantive and procedural tips he provided are excellent for practising or trial attorney. ” – Margarita G. (Glendale, CA)
• “this was very thorough and clear. great presentation” – Joy (San Francisco, CA)
• “Succinct, clear & to the point.” – Jennille (Dana Point, CA)
• “Very informative.” – Joanne (Stamford, CT)
• “Excellent course from a really excellent attorney.” – Beverly (ALAMEDA, CA)
• “very thorough” – bruce
• “I liked the basic points to remember.” – Joseph
• “Excellent.” – Eric
• “Very practical, excellent tips and suggestions for truthful answers in a depo.” – Eric
• “Great course.” – Eric
• “Excellent and clear presentation.” – John
• “The content was excellent — comprehensive and practical — but the delivery was often slow or stilted. Better editing of the video presentation might help.” – Robert
• “It was very effective, Instructor was engaging” – Kaitlin
• “- excellent course” – Maura
• “Good course! My favorite so far!” – Eric
• “Outstanding. Thank you.” – Barbara
• “Hire this dude to do an advanced course!!!” – Leonard
• “Great real-world application” – Esah
• “Very effective presentation and practical.” – Randy
• “Excellent” – Gary
• “None. Very useful information.” – Amy
• “well presented–concise and informative” – Alvin
• “None. The instructor gave excellent tips for preparing a client for deposition!” – Brenda
• “Great lecture…” – Artin
• “good….” – Michael
• “Great speaker, great presentation” – Daniel
• “Extremely helpful. Thank you.” – Jessica
• “GOOD PROGRAM” – Joseph
• “overall I think the course was very helpful and provided information that I will definitely use in the future. ” – Natasha
• “Excellent presentation.” – Donald
• “A” – Abbie
• “Good job” – Gary
• “The best part was the “five appropriate answers” for a depo.” – Zachary
• “I loved the simple way he addressed the 5 “perfect” answers!” – Vianey
• “Thank you for the informative lecture on depos.” – James
• “Do nothing. Outstanding presentation.” – Jacqueline
• “It was informative. ” – Sascha
• “- it was excellent” – edward
• “I have taken depositions for years and Mr. Newdorf was excellent. Clear, concise, succinct. He drilled down to the most important issues necessary to protect a client.” – Diane
• “good presentation” – Mohinder
• “Very Helpful” – Gary
• “Altho I have been doing depositions for many many years the lecture contained many useful hints and cautions that were very helpful” – Murray
• “excellent, clear, intelligent speaker” – Beth
• “Don’t change anything.” – Arnold
• “Instructor did an excellent job!” – Robert
• “Thought the presentation and the presenter, as well as the supplemental written materials, were all excellent.” – Margaret
• “Excellent presentation” – Luther
• “Keep up the good work!” – TRIPOLI
• “Excellent advice and excellent presentation. ” – Lola
• “very good presentation very insightful!” – Tene
• “GOOD” – Lawrence
• “it was a good overview” – Judith

Staying on the Cutting Edge

One of the ways that I stay current on the law — in addition to trying to shape new law — is by participating as an amicus curiae in appeals on issues that affect my clients. An amicus, or friend of the court, adds another perspective to the appeal in order to ensure that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case.

Last week (March 13, 2013), I was in Los Angeles arguing in the California Court of Appeal in the case of Corenbaum v. Lampkin, Docket No. B236227. I represented two groups, the League of California Cities and the California State Association of Counties. The appeal is from a trial verdict in an auto collision case. The issue is whether the amount of medical bills above and beyond what the insurance company has paid are admissible into evidence.

The Corenbaum case concerns an issue of determining medical expense damages that is a question in almost every tort case. With the advent of managed health care over the past few decades, insurance companies have been negotiating larger and larger discounts for medical services. But hospitals and doctors for the most part have not lowered the charges listed on medical bills to reflect the lower amounts actually accepted as payment in full. Hospitals and medical groups have kept their billing rates at higher levels while agreeing that they would accept significantly lower amounts as payment in full – often two-thirds lower. These days, the full medical bills are rarely paid by anyone, which has led one legal commentator to call medical bills “illusory.”

I have been litigating this issue since 2001, when I was appellate counsel in the case Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298. Nishihama was one of the earliest California cases holding that a tort plaintiff cannot recover more in past medical damages than the amount the doctors and hospitals accepted as full payment from medical insurance.

This issue made its way to the California Supreme Court, which agreed with Nishihama in the case of Howell v. Hamilton Meats & Provisions (2011) 52 Cal. 4th 541. In the Howell opinion, the Supreme Court cited a hypothetical case I used to argue the issue in the amicus brief I wrote. One issue left open by the Supreme Court in Howell is whether the full, unpaid medical bills might be admissible for a purpose other than determining the award for past medical expenses. Plaintiffs have argued that the bills are evidence of the amount of pain and suffering (also called non-economic damages) on the theory that the full medical bills are a better indication of the extent of injuries than the lower amounts paid. This would seem to be contrary to the Supreme Court’s reasoning in Howell, which held that the billed amounts are arbitrary, unreliable and inadmissible to prove medical damages.

My amicus brief in Corenbaum v. Lampkin on behalf of the cities and counties is available by clicking the link here. In the Corenbaum case, in addition to my argument in support of defendants, the Consumer Attorneys of California argued as an amicus in support of plaintiffs. You can read the Consumer Attorneys’ brief on the group’s website.

The argument last week was especially exciting for me because I was arguing along side a partner from Horvitz & Levy, the pre-eminent appellate law firm in California. That was also the firm that gave me my first job in the law, a summer associate position while I was in law school in 1992. In the audience was David Ettinger, the partner at Horvitz who hired me for that summer job. (Also in the audience were my parents, Arnold and Lois Newdorf, who had never before seen me in court.)

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the third year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

Writing a Winning Motion

I’ve compiled a selective (and somewhat subjective) collection of tips for better legal writing. Follow these informal rules and you’re more likely to convince both your boss and the judge that you know what you are doing.

1. Don’t file worthless motions.
2. The Statement of Facts should be persuasive but not argumentative
3. Outline your motion before writing it
4. Don’t tell the judge the legal standard for granting summary judgment
5. Don’t overload your motion
6. Vary your style of reciting the authorities
7. Revise, edit and shorten
8. Don’t set your hearing for a Friday
9. Rules are made to be broken

I know, this list of do’s and don’ts doesn’t explain much. If you want to know more, check out my article in The Recorder, which is available online (subscription required).
Or if you prefer to watch my one-hour lecture (and get free MCLE credit), go to lexvid.com.

Big Win in Shareholder Lawsuit

Thanks to David Newdorf and his team, I was able to achieve an attractive settlement on a recent securities litigation issue. He provided good advice along the way and kept my interests as the ultimate priority. His experience in working for and against big companies and understanding their typical behavior was instrumental in developing and executing on a good legal strategy.
– Kevin M.

Thank you, Kevin. There’s nothing I like more than winning for a client.

About the case: An Internet company going through an IPO breached its Stock Purchase Agreement with Kevin. The company denied any responsibility for the substantial loss caused by the breach. After filing a lawsuit, we were able to reach an attractive settlement that included compensation for his loss, interest, attorney’s fees and costs. After payment of all fees and costs, Kevin recovered 91 cents on the dollar, an unusually high yield.

Of course, keep in mind that Kevin’s results and his testimonial do not constitute a guarantee, warranty, or
prediction regarding the outcome of your legal matter. But I can guarantee that I work hard to obtain the best result for each and every client.

How Are Court Budget Cuts Affecting Trial Dates? Too Soon to Tell.

It is too soon to tell if California civil trials will become an endangered species, as many have predicted, due to court budget cuts.

After the governor announced yet another round of cuts for California courts, a San Francisco Superior Court judge told me civil trials will take five years to get to trial — the statutory maximum delay — because criminal cases take precedence. In my own recent experience, a civil case set for trial April 16, 2012 in S.F. Superior was continued for five months because there were no courtrooms available that week. That’s not all that unusual for the San Francisco civil courts, even before the cuts.

One recent change is the elimination of court reporters for most courtrooms in San Francisco, Alameda, Los Angeles and many other counties. Lawyers now need to arrange for their own court reporters.

On the other hand, lawyers may be reacting too much, too soon to the doom-and-gloom forecasts. I got the following e-mail message sent May 18, 2012 on behalf of Kelly Dermody, president of the Bar Association of San Francisco:

We have been meeting with our San Francisco Superior Court as it continues to respond and adapt to reduced resources and staffing.  One of the messages we have heard from the Court is a concern that many litigants with trial dates are appearing on the day of trial unprepared to go forward, presumably because they have expected (erroneously) that no courtroom would be available due to budget cuts.  . . .  Accordingly, we hope you will spread the message widely that, at least for now, trial dates are holding and the Court expects (and the system needs) parties to be prepared for trial or to seek relief from trial dates sufficiently in advance of trial.

There you have it. Trials are still getting courtrooms — at least sometimes and at least for now. As I’ve often said, don’t assume your case is not going to start as scheduled. It’s a variant of Murphy’s Law. If you’re not ready for trial call, you are sure to be assigned a courtroom.

Which reminds me of a joke.

Woman (as it starts to rain):   Why don’t you open your umbrella?

Man:   It won’t help. It’s full of holes and leaky.

Woman:  Then why did you bring it?

Man:   I didn’t think it was going to rain.

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the second year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

The Jury Is Watching: How to Lose a Trial by Jaywalking and Other Bad Behavior

The star of one of my favorite trial stories isn’t a lawyer.

The star of this story is my wife, Shoey Sindel, a Berkeley wedding and portrait photographer. She was seated on a jury in a personal injury case. The case was tough for plaintiff, who admitted to being drunk and jaywalking when a motorist hit him on a dark street at night. Liability wasn’t the only tough sell. Damages were iffy because plaintiff had been unemployed for several years.

Plaintiff’s counsel played the sympathy card, hoping that a showing of pain and suffering would sway the jury. When the plaintiff took the stand, he walked tentatively, leaning on a cane. He grimaced with each step. Either the plaintiff was in a lot of pain or he was a good actor.

The next morning, as my wife was driving to the courthouse, who do you suppose she saw running across the street, jaywalking and holding a cane like he was going to hand it off in an Olympic relay race? That’s right. The plaintiff.

Plaintiff did not appear to be in pain or suffering from any injuries. Shoey sat through the morning testimony until a break. She pondered what to do. Wait until jury deliberations and tell the jury what she saw? She expected that would lead to a swift verdict against this shifty plaintiff. She decided to tell the bailiff she needed to talk to the judge. The judge along with the attorneys met with Shoey in chambers. Shoey told the judge what she had seen that morning and that she couldn’t be an impartial juror. That was true. Shoey had become the star witness for the defense. Defendant would be entitled to call her as a witness to impeach plaintiff’s claims of pain, suffering and injury.

The judge had no alternative. He declared a mistrial. The matter settled, and Shoey never had to testify as to what she saw.

Lesson for Lawyers: You Are Always On Stage

There is an important lesson here for lawyers and their clients during jury trials. The jury is scrutinizing you at all times, not just when you are on the stand or at the lectern. Late to court? Don’t cut off that car in the parking lot or cut to the head of the line at the courthouse entrance. That’s right — the jurors are watching.

Taking a break in the hall? Not the best place to share a joke and laugh with your client. Mirth may not convey the message you would choose as to the seriousness of the trial proceedings.

Sitting at counsel’s table when the other side’s witness has just delivered a surprise zinger? Now’s not the time to jump up straight in your chair, start scribbling notes furiously or lean over to whisper to each other with an agitated expression. Such a sudden burst of activity is the best way to signal the jury to pay attention to damaging testimony. Best reaction? A yawn. Trials are long and boring. At any one time, most jurors are drifting or daydreaming. No need to break the reverie when you’d rather they kept snoozing.

Prepare your clients and witnesses as to courtroom etiquette before trial. They are to conduct themselves politely and with proper decorum from the time they get near the courthouse until the they have left the neighborhood at the end of the day. You can’t speak with jurors, but you can be polite. Hold the elevator or door. Let the juror go first.

The jawywalking plaintiff with his phony injuries is an extreme example. Most lapses of decorum won’t lead to a mistrial. Just remember — the jurors are watching.

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the second year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

Race, Gender, Jury Selection and David Mamet

Juries try their best to decide cases based on the facts and the law. They don’t always succeed.

Effective lawyers understand the limits of juror fairness and their ability to put aside preconceived notions. David Mamet’s play Race, which I saw this week in San Francisco, is a perceptive look at how trial lawyers navigate the unspoken value systems of juries. The play unfolds in a law firm conference room as three criminal defense lawyers brainstorm how to defend their wealthy, white client against charges that he raped a young black woman.

Juries are generally good at deciding simple facts: whether a light was red or green, whether a promise was made or broken, whether a stagtement was misleading. Other cases have hidden landmines for the lawyers. Cases involving issues of race, religion, gender, power, or wealth are traps for the unwary. White cops versus black suspect. White male executive versus young female subordinate. Corporate manager versus Muslim employee. In such cases, the jury deliberations can easily get away from the evidence, arguments and law — unless one or the other lawyers provides an easy guide through the thicket.

When it comes to hot button issues, jurors will bring to the deliberations not only their pre-conceived notions but an awareness of societal norms. For example, white jurors agree that racism is bad and may be persuaded to render a verdict that avoids tagging the juror as a racist. Most of these issues won’t be addressed directly at trial and may not even be discussed in the jury room. But these notions — some deeply ingrained even if never spoken aloud — will have an effect on the verdict that may be more profound than what transpired in the courtroom.

Lawyers can use these preconceptions to advantage or attempt to counter them. However, they ignore the hot-button issues at their peril. In an era in which a black man is president, some like to think society has transcended racism. In the words of jury consultant Doug Keene (from his blog The Jury Room):

The bottom line is this: do not assume race doesn’t matter in your case. Race always matters. The question is how and in what direction. Don’t go to trial without knowing.

Author Shelby Steele in his book White Guilt provides an interesting explanation of the O.J. Simpson verdict that is on point:

In the O.J. Simpson murder trial, defense attorney Johnnie Cochran used the fact that Detective Mark Fuhrman lied on the witness stand about having ever used the N word to assert that the entire mountain of evidence pointing to Simpson’s guilt was likely contaminated wtih racism. . . .

Johnnie Cochran succeeded in making the trial a contest between the empirical evidence and global racism, between fact and the reputation of racism for distorting and manipulating fact.

David Mamet’s play Race shows lawyers strategizing the defense of a high-profile criminal trial.

As the cynical senior lawyer of the play explains, it’s not about factual guilt or innocence. It’s about competing fictions put forth by the prosecution and defense. It’s not necessarily which story explains the facts better but which one affirms a juror’s sense of justice. Hence, a jury exonerated O.J. Simpson (despite the forensic evidence linking him to the crime) because 50 years ago, a black man facing similar charges would have been convicted. Rough justice was done.

Race is smart and engaging. It tackles issues of race and gender bias without being preachy. And it has the pacing of a good legal thriller. Lawyers in the audience will appreciate the realism. It may not qualify for CLE credit, but it’s time well-spent for students of jury behavior and trial strategy.

Race plays at A.C.T. in San Francisco through November 13, 2011. Use the promotional code LAWYER to buy tickets at a discount online.

For trial strategy for your hot-button case, congtact California litigation law firm Newdorf Legal.

Recovering Past Medical Expenses In California Personal Injury Lawsuits

The California Supreme Court in Howell v. Hamilton Meats clarified the rules for recovering past medical expenses in personal injury lawsuits.

As in the past, accident victims are permitted to recover from the defendant medical expenses that were paid by the plaintiff’s insurance. This exception to the rule against double recoveries (that is, plaintiff recovers the same damages from two sources) is permitted under California’s collateral source rule. Following earlier Court of Appeal decisions such as Nishihama v. City and County of San Francisco, the Howell rule limits damage awards for past medical expenses to lesser of (1) the reasonable value of the services or (2) the amount paid and accepted by the medical care provider as full payment.

In most cases, this means that a plaintiff can recover the amount paid by their medical insurance, but not the higher amount shown on the providers’ medical bills. Most medical care is paid for by private insurance or government plans such as Medicare, and these plans have negotiated or statutory rates that are significantly lower than the charged rates as stated on bills. When care is provided under an insurance or government plan, the patient is not responsible for charges beyond what the plan pays.

Plaintiffs battled insurance companies over this issue because the difference between the paid and charged rates on medical bills is significant — the plans sometimes pay less than 30 cents on the dollar. That can be a significant reduction in the potential recovery for an accident victim.

Here are practical tips for litigating medical damages in your case.

The California Supreme Court in Howell empowered the trial courts to reduce medical expense awards after the verdict if they exceeded the amounts paid for the medical care. Here is a checklist of requirements for such a reduction:

• Defendants must provide evidence of the amount of the bills that was paid by insurance or a government plan. This is usually obtained from the hospital’s or doctor’s billing records.
• Defendants must provide evidence that (except for co-payments or deductibles) the plaintiff is not liable for any amount beyond what was paid by insurance/government plan. Caution: the bills alone generally will not suffice to establish this requirement, even if they reflect amounts “written off.” You may have to provide testimony from a representative of the medical care provider’s billing office.
• The verdict form must have a separate damages line for past medical expenses. Lumping this category in with future medical expenses or other economic damages will most likely waive the right to a post-verdict reduction.

Evidence of insurance remains inadmissable at trial. Defendants must raise the issue initially as a motion in limine to establish the amount of bills paid, which will be admissible at trial. The issue of a reduction must be raised after verdict within the time allowed for a motion for a new trial or motion for judgment notwithstanding the verdict.

How does this affect award of past medical expenses to uninsured plaintiffs?

The holding of the Howell case is broad enough to cover damage awards to plaintiffs who are uninsured. Where the bill has not been paid by anyone, damage awards for past medical expenses are still capped at the reasonable value of the services provided. In that case, both plaintiff and defendant will have to offer expert evidence at trial as to the reasonable value of the services. Plaintiffs will contend the billed amounts are reasonable. Defendants will counter that the full billed amounts are not paid by anyone. These days, hospitals provide “uninsured patient” write-offs comparable to the discounts given to insurance company payors, and the amounts generally accepted by the hospital or doctor as full payment establish the actual value of the services.

About California Litigation Firm Newdorf Legal

David Newdorf has been litigating medical damage issues in trial and appellate courts since 2001, when he was appellate counsel in one of the seminal cases on medical damages, Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298. The California Supreme Court decision in Howell affirmed the earlier decision in Nishihama and quoted from Mr. Newdorf’s amicus brief for the League of California Cities.

Mr. Newdorf is managing attorney of San Francisco-based Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law. Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed in the 2011 Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

Next Page »