After a motor vehicle accident, or other type of injury claim, there is a process that is routinely followed before there is formal litigation. In other words, a person does not sue the very next day after he or she is injured as the result of a negligent party. Because of liability insurance, there is an opportunity to settle a claim short of a lawsuit.
Settlement negotiations do not need to be formal. Indeed, opposing counsel can call the other side at any time to make an offer to settle. Other times, a claim may be ripe for mediation.
Mediation is a form of alternative dispute resolution. Due to congestion at the courts, and the long wait for a trial date (in central Los Angeles, the Superior Court will set a trial date two years from the date of filing), parties are using mediation, and other types of alternative dispute resolution. In fact, it is used frequently in motor vehicle accident cases. Plaintiff attorneys, defense attorneys, and insurance carriers see the value in using mediation before trial.
In a mediation, a neutral party (often a former judge) sits with the plaintiff and the defendant. The neutral is trained to facilitate a mutually beneficial result for both sides. Each mediator has a different style, but the basics remain the same. It is a voluntary process in which both parties agree to come together for the purpose of trying to reach a settlement. It is non-binding, and if one party does not want to settle at mediation, the claim can continue onto trial, or litigation, whatever stage of the case the claim may be in.
Costs of mediation are typically split between the two sides, but sometimes a persuasive plaintiff attorney can have the defense pay on behalf of the plaintiff. Anything said during the mediation is said pursuant to Evidence Code section 1152, meaning that it cannot be used against the party later on at trial, if there is not a settlement reached. Thus, each side can speak frankly and informally about the strengths and weaknesses of their respective cases.
There are a number of different mediation methods available. Parties can pay and use a professional mediation service. Sometimes the local court will have a free mediator (volunteer who wants to help) available to the parties. Alternatively, parties can use an independent attorney who also happens to mediate cases. Generally speaking, mediation is provided by a range of different providers.
Mediation can be extremely helpful in allowing the insurance adjuster put a face on the claimant. Often it is difficult to understand the severity of an injury until you see and hear it from the injured party himself/herself! Mediation allows the plaintiff to tell his/her particular story as only the plaintiff can.
If you or someone you know has an injury claim, speak with an experienced attorney to determine whether mediation would be beneficial.
Tuesday, March 29, 2016
Saturday, March 12, 2016
The Power of Impeachment in TV's People v. O.J. Simpson
Twenty years have passed since the O.J. Simpson trial led to an acquittal. The sensationalism of the trial made the case one of the most watched in the 20th century. A beloved sports hero, actor, and celebrity was the "star" of the court proceedings. Everyone had an opinion as to whether O.J. was guilty or innocent.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Almost the same notoriety went to his team of attorneys, appropriately called the "Dream Team." Together, they faced incredible evidentiary odds to secure a "not guilty" for their client. The leadership of Johnny Cochran, exquisite trial attorney, was inspiring for the criminal defense bar. Remember: everyone, no exceptions, deserves due process and an effective defense at trial.
The miniseries on FX, The People v. O.J. Simpson, makes for good television. While it does not accurately portray the case in its entirety, it does hit home what the defense wanted to accomplish. At one point in the series, Courtney B. Vance, who plays Mr. Cochran, perfectly explains the objective for trial. The defense must tell the better story. "Whoever can tell the better story will win the case."
In real life, attorneys must do the same. The narrative and theme is important. It helps the jury weigh the evidence and come to a decision.
During the time of O.J. Simpson's trial, Los Angeles was still trying to recover from the Rodney King riots. Only a couple of years had passed when LAPD officers had beaten a black man on video and then were subsequently cleared of wrongdoing. Racial tensions were high. The Los Angeles Police Department were still dealing with institutional racism.
Knowing this, the Dream Team concocted a winning theme. Question the validity of all evidence gathered by the LAPD, and hit home the unmistakable fact: O.J. Simpson is a Black-American who was facing accusations from predominantly white police officers, some of whom were suspected of holding racial prejudices.
It goes without saying that not all police officers who worked on the O.J. Simpson case were racists, or had prejudice in their hearts. However, one detective on the case, Mark Fuhrman, was said to have used the N-word on many occasions. There were rumors that he collected Nazi paraphernalia.
At trial, these facts were put to use. When Detective Fuhrman testified, F. Lee Bailey, one of Mr. Simpson's defense attorneys, "impeached" him. Impeachment is a tool used by attorneys to undermine the credibility of the testimony being given. It helps the jury decide whether they should trust what the person is testifying to. There are many ways of impeaching a witness. One way is to point out the inconsistencies in the testimony.
Detective Fuhrman flat-out denied that he had ever used the N-word. Without much effort, the defense was able to provide evidence that he had indeed used the word before. This immediately caused the jury to question his reliability. Not only on the question of whether he had ever used racially-charged language, but whether he had lied about the evidence collected at the scene of the crime. The blood, the gloves, and other physical evidence used by the prosecution were undermined.
The impeachment of Detective Fuhrman fit the Dream Team's theme. Could the LAPD be trusted, given their racial history? Would a racist cop try to frame a black celebrity? What if the prosecution's evidence was tainted? All these questions led to reasonable doubt. And reasonable doubt is all a defense needs when a defendant goes to trial.
Friday, February 19, 2016
Knowing the Risks of Litigation
Not every case is a winner. The nature of litigation implies that there is a irreconcilable issue of dispute that exists between two rational persons. Only when a neutral, or judicial officer, weighs in does it become clear that the law favors one of the two. That being said, it is important for plaintiffs to know the risks of going forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
There are plenty of risks. Before I get into the procedural and legal risks, let's discuss the financial risks. Clients, typically, are responsible for the costs of litigation. Costs are not fees (fees are contingent in almost all personal injury cases). Costs include: postage, medical record copy charges, investigation, experts, filing fees, and other court costs. Attorneys will routinely front the costs, and reimburse themselves from the settlement, but if a case is lost, clients could be liable.
Besides the out of pocket costs that could accrue during litigation, there is also the opportunity costs. Litigation can be time-consuming. A plaintiff may have to miss work. She or he may have to prioritize a deposition ahead of a family obligation. Such realities need to be considered by a plaintiff before they are prepared to move forward.
Now to some of the legal risks. A case may not have the best facts, meaning that the evidence may be weak for the plaintiff. For example, although the plaintiff asserts that the defendant ran the red light, there may be five independent witnesses who claim that the plaintiff was the one who ran the red light! In a situation like above, a defendant may utilize the law to his favor. Let me explain.
In California, a defendant may utilize a statutory scheme intended to encourage settlement discussions. California Code of Civil Procedure ("CCP") section 998 allows defendants to make an offer of settlement with conditions. Pursuant to CCP 998, a defendant can incentivize the plaintiff to accept an offer, or face the potential risk of having to pay the defendant's costs and expert fees. An example is illustrative:
Defendant does not believe that he ran the red light. He thinks it was the plaintiff. Plaintiff is certain that it was the defendant, and is demanding a payment of $50,000 for damages incurred. Prior to trial, Defendant makes a CCP 998 offer to settle for $5,000. Plaintiff rejects it. Trial occurs, and the jury awards plaintiff $4,000 in damages. Because the award from the jury is less than the CCP 998 offer, defendant may recover his costs, and expert fees. Defendant's costs and expert fees are $23,000. Now, the plaintiff owes the defendant $9,000 (difference between the jury award, and the CCP 998 award).
In some cases, the plaintiff has no chance of winning! In those rare cases, when an attorney is usually not retained, and the plaintiff is pro per, there is the added risk of malicious prosecution. Malicious prosecution is a tort that the defendant can assert after the initial case is decided in the defendant's favor. It is a lawsuit against the plaintiff for having brought a frivolous lawsuit. It could potentially cost the plaintiff thousands of dollars.
Every case is different, and some cases involve very little risk (a simple rear-end collision with substantial property damage and visible injuries). However, it is important for individuals to consult with an experienced attorney so that he or she may know the risks, if any, before proceeding forward with a lawsuit.
Monday, February 8, 2016
Preliminary Hearings in Felony Cases
A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them. Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.
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