Ninth Circuit Sends Mixed Signals In Strip Search Case

August 27, 2008 by  
Filed under Around the Courthouse

There were three opinions written — a majority, concurrence and dissent — on the 2-1 Ninth Circuit panel that ruled against San Francisco on the constitutionality of its former jail strip search policy.  As the Legalpad blog said in its headline:  9th Plays Jail Strip Searches Left, Right & Center.  Although on the surface, the Court did not upset 20 years of its strip search jurisprudence, two of the three panel members urged the Court to reject its precedents as inconsistent with the Supreme Court’s 1979 decision in Bell v. Wolfish.

The case is Bull v. City and County of San Francisco (9th Circuit August 22, 2008).  For a more detailed analysis, read Ninth Circuit Strip Search Law In Flux After Bull Decision.  Read the three opinions for yourself at the Section 1983 Civil Rights Law Reporter, a companion blog to Newdorf Legal.

Jail Strip Search Update

An en banc panel of the Ninth Circuit reversed the panel decision in September 2010. For the latest update on the Bull case, read about the 9th Circuit en banc decision.

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

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What Every Litigator Can Learn from the Four Stages of a Marathon

August 12, 2008 by  
Filed under Lawyers & The Law

Marathoner and Business Lawyer David NewdorfPeople sometimes ask me what I think about while out on long runs.  Before the sore muscles and aching joints recede into memory, I thought I’d share some of my musings from the San Francisco Marathon on August 3, 2008. It occurred to me that long-distance running and litigation have a lot in common. So while bounding through Potrero Hill, on my way to Dogpatch and AT&T Park, I organized my thoughts into a list. I call it “What Every Litigator Can Learn from the Four Stages of a Marathon.”

The four stages are: Training, The Starting Line, Hitting the Wall, and The Finishing Kick.

1. Training. “Train how you fight.” I learned this phrase from an Army lieutenant, but the concept is universal. When soldiers train for battle, they don’t wear comfy sweats. They wear full battle gear, including those heavy backpacks. At finals time in law school, I used to see my classmates flipping through index cards with phrases like “Promissory estoppel” on one side, and definitions on the other.  Very useful if you’re taking a test about flipping flash cards.  But if you’re taking an essay exam, better to go into the library, pull out old exam questions, and start writing – with a timer, of course.  When you do it this way – when you prepare by doing the same things, in the same way, as you would during the race (or the test or whatever event you’re training for) – you take your preparation to the next level.  You learn the material at the muscular, maybe even cellular, level.

    Training for a marathon?  Don’t do it at the track, do it on the course.  Come race day, I had run ever mile of the course multiple times.  It was useful, as I’ll explain in Stage 4, because I could visualize the road ahead.  For litigators, that means do moot courts and mock trials, or at least roundtable your case with a room full of colleagues.  When you set up the moot court, make it realistic.  Wear a suit – you will in court – and stand up.  You don’t learn to think on your feet while sitting in a chair.  Recruit three or more “judges” who’ve read the briefs and are ready to pepper you with smart, tough questions.  You’ll know you prepared properly when the real argument was easier than the practice one.
    2. The Starting Line.  It’s a lot of fun when the starting gun fires and the spectators cheer you on.  You feel great!  You run faster! You can keep this up forever!  But most distance races like most lawsuits are not all flat and easy.  There are hills coming, especially in San Francisco.  But more of that in a moment.  For now, enjoy!  Celebrate your victories along the way.  You passed the 13.1 mile marker — half way done and ahead of pace?  Good job!  Congratulate the runner next to you and suck down a tasty Double Latte (the flavored PowerBar sports gel, that is).  Make sure to reward yourself – and your team –with recognition for a job well done at every stage.  Whenever possible, I celebrate the victories before learning the outcome.  You could lose that motion, and a “defeat” party just isn’t as much fun as a victory party.  If things are going really badly, I celebrate the small wins.  The judge granted my unopposed request for three extra pages on the brief!  Yahoo!
    3. Hitting the Wall.  Now it’s mile twenty-something.  The adoring crowds are gone, along with your energy.  You’re passing through a gritty industrial district.  What seemed like a personal record in the making early in the race is turning into a disaster.  Or it’s well after midnight, your office staff left hours ago, your colleague’s relaxing on a beach in Hawaii, and the brief is due tomorrow.  Will you even finish?
    Every runner reaches a point of exhaustion and fatigue where the temptation is to take the easy way out.  It happens in every race and this time was no different.  My desperation peaked at miles 20 to 22, when every inch of me was screaming to stop.  In the mind vs. body battle for dominion, it seemed like a palace coup was about to succeed.  My walking “breaks” became longer and longer until finally I was just walking.  I thought I had nothing left.
    Runners call this “hitting the wall” – the dreaded point in the race when your muscle glycogen stores are depleted and a feeling of overwhelming fatigue engulfs you.  You almost cannot take another step.  Litigators don’t have a name for it, but the same feeling is known to develop over the course of a long case.
    4. The Finishing Kick.  But wait.  Is that the 22-mile marker ahead?  Yes!  Because I know the course backwards and forwards, I know that I can almost see the Bay, which means I can almost see the Ferry Building – and that’s the finish line!  I look at my watch and note that I’ve been running for a little more than 4-1/2 hours.  I do the math, and realize that I can still make my projected finish time.  Somehow, somewhere, I find the energy to start running again.  I visualize myself on the winner’s podium.  I know the winners finished before I was half-way done, but logic has nothing to do with it.  In my mind, the theme song from “Rocky” blares.  This is my finishing kick.
    And like the song that repeats over and over until I cross the finish line, it’s all in my head. And that’s the point.  Long-distance running and litigation are about mental challenge, mind over matter.  Sure, a marathon or a trial requires training and preparation.  You’d be an idiot to go out and run 26.2 miles if you haven’t run four laps around the track since high school.  But getting to the finish line is more about mental toughness than physical conditioning.  The tests come at every stage.  It may come before sunrise on a Sunday when the alarm clock goes off.  Do you hit the snooze button or do you get out of bed for your training run?  Do you settle for the brief that’s “good enough,” or do you keep searching for the winning argument?
    It’s about overcoming the voices in your head telling you:  “It’s too hard,”  “You can’t do it,” “What were you thinking?”  The same mental toughness that powers you to the finish line helps you deal with cantankerous counsel, contrary judges, and demanding clients.
    So that’s what I was thinking as I ran down from Potrero Hill toward the waterfront.  And by the way, I finished my third marathon in 5:28.  Not a time for the record books – unless you happen to be me, in which case it is 11 minutes faster than my best previous time.

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

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Ninth Circuit affirms San Francisco’s victory in the “Fajitagate” case.

July 23, 2008 by  
Filed under Around the Courthouse

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of San Francisco in a civil rights lawsuit dubbed “fajitagate.”  In an unsigned six-page memorandum decision issued July 23, 2008, Judges John Noonan, Sidney Thomas and Jay Bybee held that the City was not responsible for any injuries plaintiffs may have sustained in an altercation involving three off-duty San Francisco police officers.  In a novel claim for liability involving off-duty officers, plaintiffs argued that the off-duty officers were emboldened to attack the two plaintiffs because San Francisco had not properly disciplined one of the officers — the Police Chief’s son, Alex Fagan, Jr. — for allegedly improper use of force while on duty.

The judges wrote:  “Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a City policy of inadequate discipline for officers’ on-duty misconduct was the proximate cause of three off-duty officers’ decisions to assualt the Plaintffs for their bag of steak fajitas.”

Scott Graham, editor of The Recorder, writing in his paper’s blog, opined that with this decision, the case that ignited a storm of media attention “has ended with a whimper.”

Former San Francisco Deputy City Attorney David Newdorf (who with Deputy City Attorney Sean Connolly represented the City in five related S.F.P.D. excessive force cases) briefed and argued the case before Judge Jeffrey White in the U.S. District Court and in the Ninth Circuit.

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

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State Bar Appointment for David Newdorf

July 22, 2008 by  
Filed under News

The Board of Governors of the California State Bar appointed San Francisco business litigation attorney David Newdorf to the Executive Committee of the Litigation Section at its July 2008 meeting.  The three-year appointment begins September 28, 2008.  A former San Francisco Deputy City Attorney and a lawyer at a major international law firm, Mr. Newdorf started Newdorf Legal, a San Francisco Business Litigation law firm, serving the litigation needs of individuals, businesses and public entities.

Established in 1983, the Litigation Section is a voluntary membership association for attorneys who share an interest in litigation. The section is led by a fifteen-member Executive Committee comprised of attorneys from across the state and by a  ten-member panel of advisors who are prominent attorneys and state and federal judges.

The Litigation Section, with 11,000 members, is the largest section of the State Bar.  According to its mission statement, the Section aims “to promote excellence in all areas affecting dispute resolution, including the protection of the rights of all litigants, pre-trial discovery, the expeditious trial of lawsuits, alternative dispute resolution, effective judicial administration, uniform rules of court, and the protection and preservation of the independence of a judiciary of high quality.”

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

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Announcing Newdorf Legal, The Law Firm

July 14, 2008 by  
Filed under News

Newdorf Legal Law Firm Logo
First, there was Newdorf Legal, the blog.  Now, there is Newdorf Legal, the law firm.  I am pleased to announce the formation of my law firm, Newdorf Legal, as of July 14, 2008.  I am continuing my practice in civil litigation in the state and federal trial and appellate courts.  I represent business and public entities in complex commerical disputes, class actions, and civil rights litigation.

My office is located in the heart of San Francisco’s financial district.  For more information about Newdorf Legal’s services for individuals, businesses and public entities, visit my law firm website at www.NewdorfLegal.com, or call me at 415-357-1234.

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

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Oral Argument Set In Ninth Circuit Appeal Of ‘Fajitagate’ Case

December 22, 2007 by  
Filed under Around the Courthouse

The U.S. Court of Appeals for the Ninth Circuit has calendared oral argument in the federal civil rights claims over a 2002 altercation between three off-duty S.F.P.D. officers (one of whom was the son of the assistant chief) and a San Francisco bartender and his friend. The media dubbed the case “fajitagate” because the fracas supposedly started over a bag of steak fajitas outside a Union Street bar. The melee fueled a perfect storm of headlines, hearings, lawsuits, investigations and indictments. But when the dust settled, most of the various civil and criminal charges against the City and SFPD officials and officers had been dismissed by judges or rejected by juries. Some cases, including this one, are on appeal.

In Snyder and Santoro v. City and County of San Francisco, U.S. District Court Judge Jeffrey White held that plaintiffs could not bring a federal civil rights claim over private, off-duty conduct of police officers. Plaintiffs had argued that they should be permitted to bring a lawsuit based on the SFPD’s alleged lax discipline for on-duty misconduct, which they contend caused the off-duty altercation. Plaintiffs’ appeal from Judge White’s decision in the “fajitagate” federal civil rights lawsuit will be argued before the Ninth Circuit at Booth Auditorium, Boalt Hall, on the U.C. Berkeley campus in Berkeley on February 13, 2008.

Defendants are represented by Deputy City Attorneys Sean Connolly and David Newdorf. Plaintiffs are represented by San Francisco attorneys John Houston Scott, Eric Safire and Dennis Cunningham.

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

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Preparing Your Client For Deposition

Preparing your client to testify at deposition can make or break a lawsuit.

Defending your client’s deposition can be a nerve-wracking, sweaty armpit experience.At the end of the day, a weak performance or just one poor answer can sink a case.  But even with stakes this high, most lawyers do not spend enough time preparing the client to testify.  While the demands of your practice, your client’s calendar, or the legal budget for the case may not allow it, ideally you should spend at least two hours of  preparation with the client for each anticipated hour of deposition.  And sending your client home with a stack of documents to review is no substitute for the face-to-face prep session.

San Francisco Business Litigation Law Firm

Here is a basic outline and some tips for your deposition preparation session with your client.

  • Start with the basic procedure.  Let the client know the who, what, when and where of the deposition.  Who will be present?  Explain the role of the court reporter.  Tell the client whether the deposition will be videotaped.  Explain the oath.  Go over the Q & A format.  Explain that you may be stating objections for the record, but that the client will have to answer the question except in the rare cases when you instruct him or her not to answer.  If this is the witness’s first depo, he or she will appreciate learning about the basics.  The client will likely have some anxiety and letting hime or her know what to expect will lessen the unease.
  • Give a sample admonishment.  Come deposition day, it is likely that the lawyer who noticed the depo will start with a standard list of “ground rules.”  Explain these and let your client hear a sample admonishment during the prep session.  When the client hears these same standard instructions from the opposing lawyer at the beginning of the actual deposition, she or he will think “I’m prepared for this.”  That will calm any jitters and allow the client to focus on what’s important.  Don’t forget to ask your client during prep about medication he or she takes.  Medical conditions can be a sensitive issue, and if your client is taking prescription medication, you don’t want to the client to be surprised and embarrassed by this common question.
  • Explain how the deposition fits into the end goal of “winning.”  Remember:  the deposition is opposing counsel’s opportunity to learn about your case.  If he doesn’t do a good job, is that our problem?  Of course not.  At the deposition of our clients, our strategy is defensive.  I often use the analogy that the depo is like a game of “20 Questions.”  If the questioner doesn’t ask the right questions, he loses.  But the first instinct of the client — especially if this is her first encounter with the other side — may be to attempt to:  (1) persuade the other side; (2) charm the other side; (3) argue with the other side; or (4) tell her entire story.  It is your job in prepping the client to get her to resist any of these common traps.  Cases are not won at the client’s depo, but they can be lost.  Let the client know that this isn’t the time to “tell her story.”  There will be other opportunities — including arbitration, mediation or trial.
  • Keep answers short.  The best deposition answers — from the point-of-view of the defending side of the table — are the shortest, truthful answers.  Tell your client:  Don’t explain.  Don’t speculate.  Don’t help the opposing counsel.  Explain the difference between a “guess” and an “estimate.”  I use the example of the conference table:  “You may not know the exact dimensions of the table in this room, but you could give an estimate.  But if I asked you ‘How big is the conference table on the floor below?’ — your answer would be a guess because you’ve never been in that conference room.”  (If anyone one has another favorite example, let me know.  I’m always looking for fresh material.)
  • The best deposition answers are the ones that answer the question directly and briefly.  For example, the proper answer to the question:  “Do you know what time it is?” is either “Yes” or “No” — but not “10 a.m.”  Why?  Because the latter answer volunteered information that was not called for by the question — a basic depo mistake.  Your client may protest that the deposition will take longer that way.  No one wants to spend any longer than necessary in a depo, and your client may think:  “I have nothing to hide. If I just tell the lawyer everything I know, we can all get out of here sooner.”  Wrong!  Every volunteered tid-bit will be written down by the opposing counsel and lead to another line of questioning.  Though counter intuitive to most clients, you must emphasize that shorter answers lead to shorter, better depos. 
  • The “perfect” answers.  I tell clients that the only “perfect” depo answers (if they are truthful ones) are the following:
    “Yes.”
    “No.”
    “I don’t know.”
    “I don’t recall.”
    “Can you rephrase your question?”

As for the last answer — “please rephrase” — tell the client to never answer a question he doesn’t understand. It’s the questioner’s job to ask understandable questions, and it’s dangerous to answer a question if one doesn’t know what it means. Explain the difference between “I don’t know” and “I don’t recall.” Some witnesses will overuse these two answers because they are easy. That mistake will come come back to haunt you at trial when the client’s memory and knowledge has been miraculously restored.

  • Review important documents and all prior statements.  During prep, you and your client should go over all of the witness’s own prior taped or written statements on the subject of the lawsuit.  Deposition testimony that is inconsistent with prior statements can lead to uncomfortable cross-examination at trial.  And in prepping for the depo, don’t just give your client a stack of documents to review in his office or at home.  Having the client read them on his own — if he actually does it — is better than nothing, but not much.  You need to read and discuss the important documents with your client.
  • Practice Q & A.  This is useful and should be done.  But if you anticipate that your client will be vigorously cross-examined at depo, get another lawyer to deliver the tough practice grilling.  For example, O.J. Simpson’s dream team — not lacking in cross-examination skills — brought in Berkeley criminal defense maven Cris Arguedas to do the deed.  Why?  Because being subjected to cross-examination isn’t fun.  Even knowing that this is “practice” and you’re really on his side, your client could easily resent getting the third-degree from his own lawyer.
  • Don’t forget to review the “Top 10 Killer Deposition Questions” with your client.  Read my list of “killer” deposition questions in last week’s Lit Tip Of The Week.  And prepare for other expected tough questions.
  • Videotaped depositions.  If you know the deposition will be videotaped, tell your client.  Instruct your client to dress in trial attire.  For men, that usually means suit or jacket and tie.  For women, a dress suit.  If your client has any distracting mannerisms (such as resting chin on hand or not looking at the questioner), tell her what they are and to resist them while on camera.  Also, if the depo will be videotaped, warn your client not to turn and look at you before answering.  This gesture makes the witness look like she is looking to her lawyer to tell her what to say.

Know your case before deposition prep

Every case is different, so consider these rules as guidelines.  If you have a good reason to deviate from these suggestions — go ahead.  But you should at least know and understand the conventional wisdom before altering it.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

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

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Ninth Circuit Hears Oral Argument In Strip Search Class Action

November 11, 2007 by  
Filed under Around the Courthouse

The U.S. Court of Appeals for the Ninth Circuit on November 6, 2007, heard oral argument in Bull v. City and County of San Francisco, a class action challenging the County Jail’s former strip search policy. Until January 2004, the San Francisco County Jail made an unclothed visual inspection for drugs and weapons of prisoners who did not post bail and were not eligible for citation release. These prisoners were searched before they were placed in the general jail population. Ninth Circuit Judges Sidney Thomas, Richard Tallman and Sandra Ikuta heard about the record of drugs and weapons smuggling at the jail, and the unfortunate death of an inmate from a cocaine overdose after the jail relaxed its strip search policy.

Deputy City Attorney David Newdorf argued the case for the Sheriff. Sacramento lawyer Mark Merin argued for the plaintiffs.

You can listen to (or download) the 47-minute oral argument from the link on the Court Decisions page of Newdorf Legal. The argument was also reported in The Recorder, which you can read on the Articles and Commentaries page.

San Francisco Business Litigation Law Firm

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

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The Top 10 Killer Deposition Questions

One of the prime reasons to spend the time and money to depose an adverse witness is to gather impeachment material.

  Other than hiring a private investigator to delve into the witness’s past, the deposition is the most effective tool in the lawyer’s arsenal for uncovering dirt and chipping away at credibility.  That includes attacking an eye-witness account, challenging an unfavorable opinion, exposing bias, and undermining believability.

Yet most lawyers don’t ask all of the basic, open-ended questions that could help achieve their impeachment goals.  In every deposition, there are questions tailored to the facts of the case, whether it is a business dispute or personal injury claim.  But many (if not all) of these “killer” questions should be asked of adverse witnesses in every type of case.  Many times you will strike out.  That’s okay, because when you do connect with one of these questions, the result is likely to be a solid base hit – and occasionally a grand slam.  The answers to these basic questions can be so damaging to the opponent’s case that the litigation will end on terms favorable to your client.  And isn’t that the goal?
California Business Litigation

So here they are – the Top 10 Killer Deposition Questions

:

  • “Have you ever been arrested?”  (And the follow-up:  “Have you ever been convicted?”)  Opposing counsel may go ballistic on this one, but it is a proper question.  Remember, felony convictions and any convictions for fraud, dishonesty or moral turpitude are generally admissible for impeachment.
  • “Have you ever been deposed before?”  I ask this at the beginning of the deposition, as part of the standard admonition, when it sounds like an innocent inquiry related to the ground rules for the depo.  But if the answer is ”yes,” I always follow up later with questions about the prior deposition(s).  I also ask the related questions, “Have you ever testified in court?” and “Have you ever been a plaintiff or a defendant in another lawsuit?”  Prior testimony and lawsuits can be a treasure trove of accusations and impeachment.
  • “Have you ever seen the [plaintiff/defendant/employee] before the events related to this lawsuit?”  This question may uncover connections between a supposedly independent witness and the other side.
  • “Did you meet with the other side’s counsel before this deposition?”  Pin down the number of meetings, where they occurred and how long they lasted.  This information can help dismantle the claim of independence.
  • “Have you signed any written statements/made any recorded statements/spoken to any reporters about the events related to this lawsuit?”  To this list, you might add:  “Have you posted any statements about these events on any internet site?”  Of course, you will have conducted a search engine and, perhaps, database query on the witness as part of your preparation for the deposition, so you’ll know if he or she is lying.
  • “Did you read any witness statements or depositions, listen to any recorded statements, look at any diagrams or photographs, or did somebody else read you any statements before the deposition?”  Okay, this is more than one question, but I had to combined them here to meet the 10-question quota imposed by the title of this article.
  • “Tell me everything you did to get ready for this deposition.”  The answer can lead you to what the witness or opponent perceives as his or her weak spots, including areas of which you were unaware.  After all, it is only natural to prepare for the hardest questions or topics.  Remember to find out the specific documents reviewed, places visited and persons met with by the witness.
  • “Was anyone else present when you met with your lawyer?”  If a third-party was present during the meeting, the witness may have waived the attorney-client privilege.
  • “How did you find your attorney [doctor/chiropractor/therapist/expert]?”  This can lead to interesting prior legal issues, lawsuits or self-interest/improper involvement on the part of opposing counsel.
  • “Do you have your driver’s license with you?”  If so, ask to see it.  Take down the personal information and, if appropriate, read it into the record.

That’s my “top 10″ — or so — general questions designed to uncover dirt.  Remember, there’s more to taking a deposition than impeachment.  For more depo tips, read Preparing Your Client For Deposition in Lit Tip Of The Week.

For honing overall deposition skills, I recommend two courses: the National Institute for Trial Advocacy “Deposition Skills” Training (17+ hours) and Robert Musante’s “Take A Killer Deposition” (full-day course).  I’ve taken both courses and received nothing in return for these recommendations.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

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

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Plaintiffs’ Bill S.B. 93 Was Ill-Conceived

October 31, 2007 by  
Filed under Lawyers & The Law

Senate Bill 93 would have allowed accident victims insured by Medi-Cal (and their lawyers) to recover higher settlements and judgments.  But the rhetoric of both sides fails to explain why the resulting medical damages would have been fair — or too high, depending on one’s point of view.  Although the governor vetoed the bill (again), the issue will not go away.  To understand how the plaintiffs’ bar is trying to change bedrock principles of tort law, read my recent legal commentary in the San Francisco Daily Journal.

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

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