Surprise me!

It may be time for a little more derring-do in the courtroom

2014 July

Something in a lawyer’s genes makes us admire procedure, especially the novel twists. We live for the rush of a new tactic and savor the sleeping statute. This oddity doesn’t go away upon becoming a judge. While I appreciate counsel who handle their cases efficiently within the parameters of our rules (and most do), at times I would enjoy a little more derring-do.

It’s possible. Our procedural jurisprudence abounds with possibilities that a number of attorneys don’t consider or may not realize exist. A statute can hide in plain sight for years before being discovered. A recent example occurred in connection with the trial court’s gatekeeping role with respect to expert witnesses. Until 2013, most opinions about this topic focused on Evidence Code section 801 and ignored its neighbor, Evidence Code section 802. The then most significant decision in the field, Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, failed to cite it even once. The section remained in the shadows until Sargon Enterprises, Inc. v. University of Southern California (2013) 55 Cal.4th 747, in which our Supreme Court wrote: “Additionally, as a recent law review article explains, Evidence Code section 801 is not the only statute that governs the trial court’s gatekeeping role. We must also consider Evidence Code section 802. (See Imwinkelried & Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony (2009) 42 Loyola L.A. L.Rev. 427…)” Now lawyers rely on both sections when they object to an expert opinion.

So the message of this article is a simple one: surprise me.

Surprise me by finding something in the dark corners of the Evidence Code or the unswept crannies of the Code of Civil Procedure (CCP). It doesn’t have to be a magic bullet that ends a case; a move or tactic that changes a lawsuit’s complexion can be equally significant. If nothing else, it may convince the other side that they have an opponent who’s willing to dig deep into the law.

Most of you will be familiar with at least some of the following suggestions, but thanks perhaps to the luck of the draw, I rarely see them in court. If you do, don’t bother reading the rest of this article.

File a lean and mean complaint

Unless you have the hard facts at your disposal, don’t ask for punitive damages when you draft a new complaint. Ignore the esoteric causes of action. Just include the simplest claims at your disposal: negligence, malpractice, breach of contract. By slimming down your pleading, you will avoid a demurrer and a slug of interrogatories. Meanwhile start your own discovery, and make it thorough. You can use discovery to search for information that may justify new causes of action or the addition of punitive damages.

Union Mutual Life Ins. Co. v Superior Court (1978) 80 Cal.App.3d 1, is illustrative. There, the court said:

It is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings. Relevancy of the subject matter is determined by the potential as well as actual issues in the case … In the case at bench, real party should not be denied the opportunity to obtain further information simply because of the uncertainty as to whether or not such information will enable him to bring a national class action. In essence, Union Mutual asks us to declare that the discovery sought in the Group III interrogatories is improper because the purpose of it is to obtain information which will be of assistance to real party in amending his complaint to state a cause of action for a ‘national class action.’ This is the precise reason why the discovery should be permitted. Without more complete information, we cannot say that there is no reasonable possibility of real party stating a class action with respect to at least some of the nonresidents.

(Id., 80 Cal.App.3d at p. 12.)

In other words, let the discovery responses be your guide. If you strike pay dirt, that’s the time to add more claims and larger damage prayers.

Use case questionnaires

If your action falls under economic litigation for limited civil cases, serve a case questionnaire with your complaint. True, you will be disclosing, early on, “fundamental information” such as your client’s damages and the identities of witnesses with knowledge of the relevant facts, but defendants will have to do the same when they answer. (Code Civ. Proc., § 93.) If they fail to do so, you can win monetary sanctions and, if that doesn’t work, issue, evidence and terminating sanctions. Consider: unless you’re dealing with a loosely educated opponent, you’ll eventually have to answer a set of form interrogatories. Why not complete that task before filing, when you can obtain the information at leisure, without a deadline and with ample time to interview your client?

An added advantage is that if you don’t like your new client’s answers, you can decline the case without having to move to withdraw. In addition, using a questionnaire signals to your opponent that you have nothing to hide and are probably ready to try the case. Insurance carriers will take notice of that. Finally, if and when the defense serves you with discovery, you can recycle the answers you’ve already provided (assuming you have no new facts).

If the case is complicated, maybe it’s complex

Just because your case didn’t land in the complex-litigation program doesn’t mean it’s not “complex.” It may be, and if you believe it is, ask the judge to deem it complex pursuant to Rule 3.400 of the California Rules of Court (CRC). For example, if there are “Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve,” the matter may qualify for complex treatment regardless of whether it’s assigned to a complex litigation judge or a regular trial court. (CRC 3.400(b)(1).) Obtaining complex designation will enable the judge to exercise more vigorous hands-on management and will let you employ a variety of creative techniques. (See, e.g., First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, Lu v. Superior Court (1997) 55 Cal.App.4th 1264, 1268-1269.)

On the other hand, declaring a case complex does not result in a committed relationship. CRC Rule 3.403(b) allows a court, with or without a hearing, to decide on its own motion, or on a noticed motion by any party, that a civil action previously declared complex is no longer so. If you find yourself mired in protracted hearings that you think are simply wasting everyone’s time, consider asking for this type of relief.

Demur to the answer

Demur to the answer. That sounds like bizarre advice, coming from a judge who doesn’t care for demurrers, but not really. While demurrers to complaints rarely accomplish much, demurrers to answers (and motions to strike affirmative defenses) can. Most judges will not view this procedure as a delay tactic, because too many attorneys lard their answers with empty affirmative defenses that cry out for removal. Eliminating them will force counsel to focus on the real issues.

There’s another little-noticed option. If you want to demur to a cross-complaint but also want the earliest trial date possible, CCP section 430.30(c) allows you to “demur and answer at the same time.” That device sends a signal that you are not trying to delay and that your demurrer is serious.

Submit a paint-by-numbers guidebook for oral argument

One attorney has used this method in my court with success. Rather than relying on a PowerPoint presentation during an oral argument, he hands up a three-ring notebook, tabbed by subject. Tab 1 may be the relevant statute; tab 2, a controlling case; tab 3, a deposition nugget; and so on. Then he walks the judge through each of his points. Instead of having to stare across the courtroom at a big screen with type too small for aging eyes, the judge has a binder to thumb through during the hearing and paper on which to make notes.

Use in limine motions to admit evidence

Almost every motion in limine asks a court to exclude evidence, such as insurance coverage, gory photos, and the like. Yet no law prevents you from moving in limine to admit evidence. If, for example, a particular document may make or break a case, but its admissibility is questionable, ask the judge to admit it. Better still, don’t wait for the final status conference; file the motion early. The Superior Court of Los Angeles County, Local Rules, rule 3.57 does not state when a motion in limine shall be filed or heard. Resolving the issue quickly may help settle the case before you sink money and time into what may turn out to be a losing cause. As one lawyer asked during a case management conference, “Wouldn’t you rather fall off the bottom of the mountain than the top?”

 

Confront the hard jury instructions now

If a legal question is preventing you from settling, move early for a jury instruction. Consider enlisting your opposing counsel in the effort. The court will appreciate a joint motion for a jury instruction in which both sides submit dueling versions. Instead of hashing them out while the jury waits in the hall, you and your judge will have more opportunity to ponder and think. An added advantage: you will have time to seek appellate guidance, and if the question is significant enough, the Court of Appeal may take your writ.

Supplement your case

Section 464 of the Code of Civil Procedure says that a party may move for leave to file “a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” Rarely do I see such a motion. Especially in business cases, there must be more than a couple of occasions where something actionable occurs after the initial pleadings are on file.

Supplement your discovery

Why don’t more people take advantage of supplemental interrogatories and requests for inspection? (Code Civ. Proc., §§ 2030.070(a), 2031.050(a).) For each of these devices, the Code of Civil Procedure allows a party to serve three supplemental discoveries, including one after the court sets a trial date. (Code Civ. Proc., §§ 2030.070(b), 2031.050(b).) I’ve seen too many occasions where someone tries to block exhibits because “they were not produced in discovery,” only to be told “we didn’t know it existed until a few months ago.” A supplemental inspection demand would have caught that document.

Use “cheap discovery” to flush out common counts

Although rare in a personal injury suit, you may on occasion face causes of action for common counts, such as money paid or account stated. Section 454 of the Code of Civil Procedure allows you to demand the account that forms the basis of these types of claims. If the plaintiff fails to comply within 10 days, the plaintiff cannot produce evidence about it. If the complaint is verified, the bill of particulars must be verified. The procedure is quick and cheap; it doesn’t count against the number of interrogatories you have; and the remedy for noncompliance is severe.

Use those party depositions

The deposition of an adverse party can be used “for any purpose.” (Code Civ. Proc., § 2025.620(b).) Any means any. You are not restricted to prior inconsistent statements; yet many attorneys fail to use a party deposition for any other purpose. How about, for example, using the transcript to show that the party’s testimony is not true? You don’t need to put the party on the stand to do so

One of the most effective uses of a party deposition I ever saw occurred toward the end of a wrongful-death trial involving a man who was killed when his van rolled over. Defense counsel stood up and read the following from the plaintiff’s deposition:

Q: “Did your husband ever take the van to anyone other than Defendant (repair shop) for repairs?

A: “No.”

Q: “Did you personally take the van for repairs anywhere else?

A: “No.”

Then counsel called a mechanic from another shop that was not a party to the case. That witness produced a work order showing that the decedent and his wife had taken the van there shortly before the accident.

Next, counsel read another snippet from the widow’s deposition and called a second witness to refute it. Finally, he read from a third section and called yet another witness to demolish what the plaintiff had said. The jury acted more attentive than it had during the preceding several weeks, and I am sure that tactic helped the defense win the case.

Criminal lawyers understand this move better than we do. During her opening statement in a murder trial before me many years ago, the deputy district attorney played a taped statement made by the defendant when the police interviewed him. For forty-five minutes, the jury heard the defendant explain why he had shot the victim. Had the jury believed him, they would have acquitted on self-defense grounds. But the purpose of the tape was to prove the defendant had given a false exculpatory statement, in other words, a lie. Parenthetically, that’s the basis of the Miranda warning: that anything you say can and will be used against you.

The Discovery Act is not exclusive

Lincoln Pullin is your friend. He never wanted to be. But one rainy February day, he fell at a Von’s market. His lawyer hired Engdahl, a forensic safety engineer who, while the store was open for business, went there and conducted a brief, nondestructive test on the floor to determine the coefficient of friction. When Engdahl finished, he bought something and left. The entire process took no more than 15 minutes. When the defense learned of this, they howled, but the Court of Appeal saw nothing wrong with what had occurred. “…There are situations where documents can be obtained without the other party’s cooperation.” This was one of them. The expert “was not a trespasser…there was no vandalism…there is no claim that Engdahl did anything to interfere with Vons’s ability to conduct its business or with Vons’s customers…There was no loitering. We do not see any unlawful conduct.” To bring home the point, the court made it clear that, “All we are saying in this opinion is that evidence is not made inadmissible by the simple fact that it is obtained by investigation rather than by way of formal discovery.”

So keep this case handy: Pullin v. Superior Court (2000) 81 Cal.App.4th 1161.

Host a talk show during voir dire

There is no need to be stiff and formal during voir dire. Its purpose is to learn about the prospective jurors, and asking for yes/no answers is not a good way to do that. Nor is repeating what the judge has asked, juror by juror, until the panel is ready to explode. Consider what happened in my court one Monday morning, after counsel began repeating questions that called only for a yes or a no:

Prospective Juror A: “Sir, on Friday we all told you we would listen to the evidence and use the judge’s instructions. How many days are we going to sit here being asked questions? We said on Friday we would do it. So, let’s go.”

Prospective Juror B: Ditto.

Prospective Juror A: “It’s disrespectful to us. I’ve got a family. I’m not making money. I want to get money for my family, and I can’t do it until I’m dismissed. I’m cool to be on the jury, but let’s go.”

Counsel: “Okay. All right. Are you holding it against me?”

Prospective Juror A: “I’m holding it against all four of you. I think it’s an abuse of the system. You could have been done already. We could have been back at work…Let’s hear the evidence, not you guys trying to condition us to feel one way or the other. It’s ridiculous.”

The point of voir dire is to get to know the jurors, so make them talk. (But not the way Prospective Juror A did.) There’s nothing wrong with acting like the host of a talk show who knows how to draw people out. Be the moderator; ask open-ended questions. “What went through your mind when the judge told you this was a complaint for medical malpractice?” “What do you like best about your job?” “You said the last jury you were on didn’t reach a verdict? How did you feel about that?” Think of voir dire as the legal equivalent of speed dating. Just be careful not to violate Standards 3.25(f) of the Standards of Judicial Administration (e.g., “You like ant farms? I have one too.”)

With time, you will become less nervous when you question prospective jurors. It’s easy to practice if you treat every gathering of strangers as an opportunity to get people talking. Chat with the cashier at the supermarket checkout line. Ask what prompted him to take the job? Does he hope to advance in the company and if so, how? Converse with the next cabby with whom you ride. In one trial, Charles O’Reilly became so engaging with the prospective jurors that he had them chuckling comfortably. When a woman on the panel said that she didn’t mind dating older men (the subject was relevant in this particular case), he said, “That’s wonderful. Will you marry me?” Yes, it was technically a rule violation, but Charlie knew the rules so well that he knew when to break them, and even his opposing counsel ended up laughing along.

You can lead your expert

That’s not a misprint. You can lead an expert witness on direct examination, which is a major exception to the normal rule. (People v Campbell (1965) 233 Cal.App.2d 38, 44; Chula v. Superior Court (1952) 109 Cal.2d 24, 38; comment to Evid. Code, § 767.) So don’t object if your opponent takes advantage of this wrinkle. You don’t want to look bad in front of the jury when the judge tells you why your objection is overruled.

Watch for this conclusive presumption

If a written contract surfaces in your lawsuit, check carefully to see if it contains any factual statements. If so, the parties to the agreement must live with them. Evidence Code section 622 provides that with the exception of a recital of consideration, “[t]he facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest.” Woe to the contracting party who takes the stand and tries to prove something different.

Give every exhibit a single number

The Feds have it right. Local Rule 26-3.1 of the United States District Court for the Central District of California requires each document used in discovery to be “numbered sequentially. Only one exhibit number shall be assigned to any given document. Exhibits shall be numbered without regard to identity of the party introducing the exhibits.” In other words, when counsel uses a document for the first time, e.g., in a deposition, and marks it Exhibit 5, that document will be known as Exhibit 5 for the life of the case. This rule reduces confusion, simplifies your recordkeeping, and will make judges (at least me) smile.

I could go on, but you get the idea. Look harder, and look everywhere. The Eureka moment will be worth the effort. Not only may what you find help you win; it will help you have more fun.