Where You Sue (or Get Sued) Matters

You may have a choice of courts in which to file your California personal injury or business claim.

Should you choose state or federal court? Which county or state or judicial district? These choices matter because of differing procedural rules, local procedures, and jury demographics. For example, federal court requires a unanimous jury to reach a verdict (even in a civil case), but only 9 jurors out of 12 are needed to reach a verdict in California state courts. Next to an outright defense verdict, a hung jury is generally the civil defendant’s next best outcome. Since hung juries are more likely in federal court (you only need one hold out juror), a defendant may have a good reason to remove a case from state to federal court.

Defendants benefit from federal court summary judgment procedures.

In U.S. District Court, the shorter notice periods for bringing summary judgment motions generally favor defendants. With four to five weeks from filing to hearing in federal court, plaintiffs may not have a chance to conduct discovery directed at issues and points raised in the motion. In California courts, the opposing party will have at least 60 days before its opposition is due. During this time, the plaintiff may serve written discovery requests and take depositions if needed to shore up the evidence in support of an essential element of plaintiff’s claim. Finally, federal judges have more latitude to grant partial summary judgment concerning discrete issues compared to the narrow grounds for summary adjudication under the California Code of Civil Procedure.

Choosing your jury pool

In state court, jury pools vary from county to county. Rural counties tend to provide more conservative jury pools, which often is reflected in defense verdicts or lower plaintiff’s verdicts. Urban counties generally are more plaintiff-friendly venues. But even within a metropolitan area, jury pools differ from county to county and courthouse to courthouse.

Lawsuit venue rules vary depending on the case

You may have little choice about where to file your action. For example, consumer collection actions can only be filed in the county where the contract was signed or the county where the defendant currently resides. A defendant may have the option to remove a lawsuit to federal court, but the removal petition must be filed within 30 days of service of the complaint. Where there’s a choice, the decision where to file can have a large effect on the ultimate outcome of litigation. Consult with an experienced business or personal injury attorney concerning these strategic decisions. If you are a transactional lawyer, you would be well advised to consult with (or refer your client to) a litigator regarding these strategic litigation calls.

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:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

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

Call David Newdorf at (415) 357-1234 (or e-mail to info(at)newdorf.com) for all of your California complex litigation questions.

S.F. Superior Court’s Closure of One Law & Motion Courtroom Will Lead to Big Changes

Effective October 3, 2011, San Francisco Superior Court is closing one of its two Law and Motion courtrooms due to budget cut backs.

The new Law and Motion judge will be the Hon. Harold E. Kahn, to be located in Department 302 at the Civic Center Courthouse. Judges Peter Busch and Loretta Giorgi, who had been assigned to Law and Motion duties, will be moving on to the Hall of Justice, where they will preside over criminal trials.

The coming 50 percent reduction in judicial staffing will lead to big changes in civil law and motion practice. Just a year or two ago, there were two commissioners handling discovery motions in addition to two Law and Motion judges. The Court elminated the Discovery Departments and shifted that work to the two law and motion judges. Now, Judge Kahn will be handling the work load formerly shared by four judicial officers (with the exception of asbestos cases, which have all been transferred to a new, specialized department).

In the past, a lawyer could schedule a motion in S.F. Superior Court on any date without first reserving the hearing date. That will inevitably change. San Francisco will be forced to follow other Bay Area courts, such as San Mateo and Alameda County, that ration hearing dates. These courts — and no doubt, San Francisco soon — allow only a limited number of motions on each hearing date. In some counties, it takes 60 days to have a demurrer heard. With several rounds of motions and amended complaints, a case can easily plod along for a year or more in the initial pleading phase.

This cutback came after the state Judicial Council provided several million dollars in additional funding in order to stave off even more severe layoffs in San Francisco Superior Court. The state court cutbacks will likely put additional pressure on federal courts as more lawyers decide to go federal if they have that option. For years, the trend had been in favor of state court filing. Many lawyers who could have filed in federal court chose to file employmnent and civil rights cases in Superior Court under California state stautes to avoid federal court.

With these cutbacks, lawyers will need to be more focused and effective advocates to get the attention of an over-worked Law and Motion department. See San Francisco Law and Motion Tips for best practices in this department.

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:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

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

Call David Newdorf at (415) 357-1234 for all of your California complex litigation questions.

San Francisco business attorney David Newdorf helps obtain ruling from California Supreme Court that will save business and governments billions annually.

SAN FRANCISCO (August 18, 2011 ) – The California Supreme Court ruled this week that court awards to accident victims for past medical expenses must be limited to the amounts actually paid and accepted as payment in full by medical care providers. The case pitted personal injury lawyers against doctors, hospitals, local government and insurers who urged the Court to adopt limits on court damage awards. The case is Howell v. Hamilton Meats & Provisions, Inc., S179115, decided on Aug. 18, 2011.

San Francisco business litigator David Newdorf represented the League of California Cities as a friend of the court, or amicus curiae, in the case. The Supreme Court cited Mr. Newdorf’s brief in rendering its decision.

Lawyers for accident victims had asked the Court to allow juries to award the full amount stated on doctor and hospital bills, even if the care provider accepted a reduced payment from insurance and neither the patient nor the insurance company was liable for higher billed amount. The doctors and hospitals would not be able to share in the increased recovery for medical expenses. The amount would be paid to the plaintiff and, under typical contingency fee agreements, shared with the plaintiff’s lawyer.

The higher medical expense awards would have added several billion dollars to court judgments annually, according to insurance industry estimates. California cities, which are often viewed as “deep pockets” by personal injury lawyers, would have faced higher tort payouts at a time when vital services are already being cut.

“Cities and businesses are interested in a tort system that fairly compensates injured persons while protecting taxpayers and citizens from undue expense,” Mr. Newdorf said. “The issues raised by this case have a significant effect on the ability of state and local government to provide vital services to all Californians.”

Founded in 1898, the League of California Cities is an association of 474 California cities dedicated to protecting and restoring local control to provide for the public health, safety, and welfare of their residents, and to enhance the quality of life for all Californians.

To read the Supreme Court decision or Mr. Newdorf’s amicus brief., visit newdorflegal.com.

Mr. Newdorf has been litigating this issue on behalf of clients 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.

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.

Sample Deposition Questions In Personal Injury Cases

This week’s litigation tip expands on my article, “The Top Ten Killer Deposition Questions,” to provide ideas for basic deposition questions in a personal injury matter.

The most popular articles on this website have to do with depositions, which shows how important this discovery procedure is in today’s civil litigation practice.  Based on the most recent California court statistics,  between 8 and 12 percent of civil cases filed go to trial.  For the other roughly 90 percent of cases that settle or resolve through a dismissal or motion, the deposition might as well be considered the trial.

Defense lawyers typically ask these questions (at least I do when defending a case involving personal injuries), so plaintiff’s lawyers should review this list with their clients during preparation for deposition.  Also check out my article on “Preparing Your Client For Deposition.”

• “When did you first realize there was going to be an accident?  Tell me how you knew an accident was about to happen.”  This is a good opening question to set the stage.
• For trip-and-falls:
• “How did the accident happen?  What happened with your foot?  Did you trip?  Did you slip?  Did your foot catch?  Did some part of your body twist?”
• “Was there any foreign substance or article on the surface where you fell?  Was there anything unusual about the surface where you fell?”
• “How did you land?  On what part of your body?  Were you face up or face down?  Which direction was  your head pointed?  Which direction were your feet pointed?”
• For motor vehicle accidents:
• “What did you hear right before the accident?”  If the police report, photos or accident reconstruction report shows skid marks left by any vehicle, that would produce a loud, shrill noise that could be heard for blocks around.
• “Describe how your body moved during the accident.”  A detailed verbal description and/or the videotape of the deposition (if used) will be useful to a retained medical doctor, chiropractor, biomechanics expert or accident reconstructionist.  Sometimes the plaintiff’s description may contradict the laws of physics (such as when plaintiff says he fell backwards following a sudden bus stop) or be inconsistent with other evidence.
• “What parts of your body made contact with what parts of the interior of the vehicle (or sidewalk or floor)?”  You want to compare the purported points of impact with the medical evidence of the location of cuts or bruises.
• “When did you start to hurt?”
• “Did you have any swelling?  Where?  When did that occur?”
• “Did you have any cuts, bruises or scrapes?  Where? When did those become visible?”
• “Did anyone take any photographs at the location of the accident?  Who?  When?  When did you see these photographs?” 
• “Did anyone take photographs of your injuries?”  Ideally, you should have obtained these photos in response to document demands before the deposition.  Sometimes the plaintiff’s lawyer hasn’t done his or her job in gathering responsive documents, so you should always ask the plaintiff.
• “When did you first seek any medical treatment?  How did you get there?”  I’m always amazed how many accident victims call a lawyer before a doctor.  And there was the bus fall-on-board case I defended once where the plaintiff stood up, announced he had changed his mind and “wanted to get paid,” and laid back down on the floor to wait for the paramedics.  Meanwhile, he got out his cell phone and started calling law firms.
• “How did you find your doctor?”  Often the lawyer has referred the client to a favored treater, who will take a lien on the case instead of payment up front.  Many plaintiffs’ attorneys, however, frown on this practice.
• “How long were you at the doctor’s office for treatment?”
• “Describe your treatment.”
• “When did you last see your doctor?” 
• “Did your doctor prescribe any medication?”
• “Are you currently taking any medication as a result of this accident?”
• “How are you feeling today?”

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:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

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.

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?

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:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

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.