MEETING AND CONFERRING, MORE THAN JUST BICKERING

by Brandi L. Harper, Esq.

The discovery process is what takes the most time in any civil lawsuit.  Usually, the pleadings, meaning the Complaint and Answer, have been settled early on in the case, but the discovery process, taking depositions, responding to demands for production and interrogatories will take years before the parties go to trial.  During the discovery process, both parties are trying to ascertain information from the other in order to be prepared for their day in court.  Often times there will be disputes during the discovery process, which require a court to sort out the dispute. 

When a discovery dispute occurs, the parties are required to meet and confer prior to filing a motion to compel.  A motion to compel is a motion brought by a party asking the court to intervene in the discovery process and require the other side to respond.  The meet and confer process requires that the parties attempt to work out their differences prior to bringing the motion.  Many believe that the meet and confer process can be completed merely through sending a letter stating that a party failed to respond or the party provided insufficient responses.   However, courts have found that more is required.  In Townsend v. Superior Court (1998) 61 Cal.App.4th 1431,1435; 72 Cal.Rptr. 2d 333, the opinion provided guidance on the duties of the parties in the meet and confer process:

“The parties must present to each other the merits of their respective positions, with the same candor, specificity, and support during informal negotiations as during the briefing of discovery motions.  Only after all the cards  have been laid on the table and a party has meaningfully assessed the relative strengths and weaknesses of its position in light of all available information, can there be a ‘sincere effort’ to resolve the matter.” 

The mere sending of a letter stating that responses are insufficient is not enough.  Rather, the parties must set forth in detail why the responses are deficient.    Sending a letter and asking for a response within five (5) days is not good faith, nor will it be viewed as a sincere effort to resolve the matter.

It is a good practice to offer that you are available to discuss the discovery issue with the other side.  While you must be careful not to blow your deadline for a motion to compel(45 days) it is important that there be sufficient discussion during the meet and confer process.  Setting forth all of your arguments including case law to support your position, not only ensures that you have fulfilled your obligations in the meet and confer process but if you do have to bring a motion to compel, most of your arguments are already prepared.  The most important thing to remember during the meet and confer process is it really is an opportunity to remedy the situation and if treated as such, instead of just a formality, it can actually work.

ADMITTING VICARIOUS LIABILITY

By:  Dennis E. Wagner

One of the interesting things that an employer has to deal with is sometimes admitting vicarious liability for the negligence of an employee.   This typically involves a scenario of an auto accident.  Often times the employee, while driving in the course and scope of his duties, becomes involved in an accident.  The employer and employee are sued and the employer assumes liability for the employee. 

Let’s assume the employer was also negligent in the hiring of the employee in the first place.  The usual standard was that it was irrelevant as to whether the employer was negligent in the initial hiring of the employee or was responsible for the negligence at the time the employee engaged in the wrongful conduct leading to the accident.  The issue being that the employer can’t be sued twice for essentially the same wrong.

This usual scenario briefly upset for a small period of time when an appeals court ruled that a plaintiff could pursue causes of action against the employer for not just vicarious liability (i.e.) being responsible for the negligent employee while operating the vehicle, but could also pursue a separate tort for the negligence of the employer in hiring and entrusting the employee with the vehicle in the first place. 

The Supreme Court has just recently resolved this issue indicating that if the employer is admitting to vicarious liability for the negligence of the employee, and negligence in hiring or entrusting the employee is irrelevant.  The case decided was Diaz v. Carcamo (2011) DJDAR 9280, which involved a company that had hired an employee who had two previous accidents, one just 16 days before the accident that led to the litigation.  The employee was illegally in theUnited States using a fake Social Security Number and had been fired from or quit 3 of his last 4 jobs as a driver.  In that case, the plaintiff had argued that there were separate theories, namely the accident in which the employee operated the vehicle, but  also claimed negligence against the employer for hiring the person.  The Supreme Court simply held that if the employer admits vicarious liability for the employee’s negligence, the damages are the same.  Meaning there are no extraordinary damages that can be sought against the employer beyond the employee’s negligence.

This principle makes sense and it is nice to see the California Supreme Court reaffirm what appears to be common sense.

 

BANKRUPTCY – DON’T GET HOOKED BY THE BAIT AND SWITCH

by Marty E. Zemming, Esq.

Nowadays most of us know someone who is considering filing for protection under the bankruptcy laws.  Often times attorneys who practice in the field find themselves being asked why their fees are so much more than those advertised on the billboards that are now commonplace along the freeways.  For many considering bankruptcy, cost is obviously a major consideration, and the thought of paying $399 for a chapter 7 filing, when most attorneys  charge much more, is very appealing.  Experienced bankruptcy attorneys often find themselves defending their fees, which when compared to those attorneys advertising on the highways, seem astronomical.  So, the question becomes, how is it that these firms, that seem to spend so much on billboards, can afford to charge $399 or $499 on a bankruptcy and remain in business? 

The answer is that many times they don’t.  Unfortunately, it appears that some firms seem to engage in bait and switch tactics to attract potential clients.  The set up is straight forward:  file chapter 7 for as little as $399 or $499.  But for many consumers, they are then presented with a smorgasbord of options.  For instance, the base price might only be to have a non-attorney fill out your paperwork for filing. It might cost more to have an attorney prepare your paperwork or to be present in court, which means you may need to file your petition yourself or represent yourself at court.  The bottom line is that you need to know what you’re paying for, and chances are, if you want complete attorney representation through the process, you will pay more than advertised.

For many, filing bankruptcy is a relatively straight forward and fast process.  But some people absolutely need the benefit of an experienced attorney to guide them through many potential pitfalls.  If you have a business, assets, or are in foreclosure, the consequences of going with the wrong firm or a non-attorney service can be devastating.  Having good legal representation is never an inexpensive proposition, but make sure you take the time to find an attorney who understands your needs and is experienced enough to handle your unique situation.  If you find yourself at a firm offering low cost bankruptcy filings or a volume firm or what are commonly known as “mill firms”, make sure you understand what is included (i.e., will your attorney even show up at court or will it be an attorney you’ve never met?), and make sure costs are explained to you.  Also, keep in mind that the economy has hit attorneys hard and many inexperienced attorneys are now trying their hand at taking on bankruptcy cases.  Make sure you take time to find the right attorney or in the end you might find that going with a firm that advertises as cheap, might be more expensive than going with an experience bankruptcy attorney in the first place. 

 

 

 

ATTORNEY’S FEES AND WHY THE DEFENSE NEVER GETS THEM

by  Dennis E. Wagner

In the civil rights case there is always an issue at the end of the case for the winning party.  The prevailing plaintiff is entitled to statutory costs and attorney’s fees.  Typically in a civil rights case if the plaintiff prevails, even for a very small amount of money, the court can award attorney’s fees.  Only in very limited circumstances can the court deny a prevailing plaintiff an award of attorney’s fees.  This can be done when special circumstances exist to render any attorney award unjust.  In determining whether there are “special circumstances” to deny the plaintiff’s attorney attorney’s fees, the court has to determine whether the attorney’s fees would further the purposes of the statute and whether the balance of equities either favors or disfavors the denial of attorney’s fees.  Thomas v. City of Tacoma (9^th Cir. 2005) 410 F.3d 644, 648.

Counter this position with you as a defendant who is the prevailing party at trial.  The prevailing defendant can only obtain attorney’s fees, but only as to frivolous claims.  If the plaintiff’s lawsuit contains both frivolous and non-frivolous claims, counsel can only be awarded those attorney’s fees that would not have been incurred but for the frivolous claims.   In Fox v. Vice (2011), U.S. Supreme Court held the defense would have to prove that the costs to defend against the frivolous claims would not have been incurred in defending the non-frivolous claims at trial.  Essentially, the defendant who wins almost never gets attorney’s fees.

When the plaintiff prevails on attorney’s fees, the court has to determine a reasonable fee.  Typically, the court is going to use a method called the Lodestar Method, which begins by determining the number of hours reasonably expended and then multiplying those hours by a reasonable hourly rate.  A reasonable hourly rate is where a lot of the battles occur in contesting the plaintiff’s motion for attorney’s fees.  A reasonable hourly rate is reflected in the prevailing market for the legal community with attorneys with similar skill, experience and reputation.  Unfortunately, there is a wide variety of skill, experience and reputation for attorneys who engage in civil rights litigation. 

Moral of the Story:

The moral of this story is that as a police officer being sued under Section 1983, if you win, more likely than not your attorney’s fees will never be recoverable.  Keep in mind, most plaintiffs in civil rights litigation are near destitution.  For the defendant, as a prevailing party, your attorney’s fees are paid by the municipality or governmental entity but are not recoverable.

MEDIATION 101: AN OVERVIEW OF THE MEDIATION PROCESS

by Brandi L. Harper, Esq.

For many people their knowledge of the legal system stems from television.  From Perry Mason and Matlock to Law and Order and Boston Legal all of which show the excitement in the court room.  Everyone has a general idea of what happens during trial, but when it comes to mediation no one really knows what to expect.  With a backlog on cases, most courts are pushing parties towards mediation.  This is a general overview of mediation.  There are two types of mediation, court sponsored and private.

Court sponsored mediation

In most counties court sponsored mediation is available when the amount being sought is below a certain amount.  Court sponsored mediation does not cost the parties anything.  Most counties have a panel of experienced attorneys or retired judges who will act as a mediator that parties can choose from. 

Private mediation

Private mediation is generally what most parties decide to participate in.  Private mediation requires that parties choose a private mediator and split the costs for the mediation.  There are many companies that specialize in mediation services and employ a panel of retired judges.

The Mediation Process

Mediation is informal and does not occur in the court room.  There is no judge or jury and usually does not take place at the court house.  Prior to attending mediation each party will submit a confidential brief to the mediator.  This brief sets forth each parties position and why they believe they will prevail.  On the day of mediation, all parties meet with the mediator at the beginning of the session.  During this initial contact there is an explanation of the process and the parties may discuss issues in this setting.  Most likely, after the explanation of the process, the parties are separated.  Depending on where the mediation occurs the parties may each have their own room.  During the time that the parties are separated, the mediator will discuss with the parties the strength and weaknesses of their case.  During this time the mediator will attempt to find some middle ground which will enable the parties to settle.  At times the mediator may speak with just attorneys or with a party and their attorney.  If a case is complex the parties may agree to mediate over several days but usually a mediation lasts a day.

Does Mediation Work

The success of mediation is dependent on the case and the willingness of the parties to try and resolve it.  Mediation is often successful in instances when the amount being sought is small and a defendant believes that it will cost more to take a case to trial than to settle.  The financial means of the defendant is also a factor in whether mediation is successful.  If a defendant is not able to offer money to settle a case it is highly unlikely that the plaintiff will just dismiss their case.  Mediation can be successful when a defendant may be willing to settle even if they believe they may prevail because they face the possibility of losing more money at trial.  The mediator is a factor in whether mediation will be successful.  A good mediator will push the parties to forge a settlement.  Because there are many factors and every case is different it can be often difficult to determine if a case can settle at mediation.

Conclusion

Mediation is helpful in resolving lawsuits before trial.  Even of a case does not settle at mediation it may help each side recognize strengths and weaknesses in their case that they did not see before.  While mediation is informal it is beneficial to you be represented by an attorney at mediation. 

 

 

 

 

 

 

 

 

 

 

Don’t Be Stupid…Answer Every Lawsuit

By: Marty E. Zemming

If you are ever served with a lawsuit,Californialaw requires that you respond to the complaint in 30 days.  The 30 day time period is stated in the summons you’ve been served with.  For some, it might not be necessary to respond, if say, for example, you have been advised by an attorney to file bankruptcy.  But, for most defendants in lawsuits, it’s critical to file a timely response to protect their rights.  Failure to file a timely response in the court where you have been sued might result in your default being taken, and a money judgment against you, or your business, if it’s been sued.  All a plaintiff needs to do is file a request to have your default entered because you did not answer in a timely manner, and you’re done. Hiding your head in the sand does not make a lawsuit go away and in most cases makes it worse.  Occasionally, it might be necessary to get an extension of time to respond and/or hire a lawyer, and the party who is suing you, (their attorney if represented), might grant you an extension – but either way, it’s critical that you act promptly to protect your interests.   Confirm every communication with the other side in writing so that it can be presented to the court if there’s ever a problem. 

Note, that if you are defaulted because you do not respond to a lawsuit in time, you are out of court, and cannot contest any of the proceedings until a judge sets aside the default.

If you are defaulted, you have a very small window of time underCalifornialaw to ask the judge to set aside the default so you can appear in court and fight the lawsuit.  Ask a lawyer!! This is very important, because the law requires that you act diligently, and even a short delay might result in the court denying your request.  The law requires that you not only show the reason why you are in default, (permissible reasons include mistake, inadvertence, and excusable neglect), but the law also requires that you act diligently once you discover that you are in default.  “My dog ate the lawsuit” or “I’m not a lawyer” and that’s why your in default won’t cut it, and your failure to show a satisfactory reason for being in default and your diligent efforts to set it aside, will result in your request being denied.  Court’s have denied a defendant’s request to be relieved from default based on an unexplained delay of just a few months.  You cannot gamble on what a particular judge will do.

Keep in mind that while California’s policy is liberal and intended to allow parties to have their day in court, the courts will not sanction laziness or a lack of diligence in setting aside a default. You can be denied relief and stuck with a monetary judgment against you, or your business, if you don’t move and act promptly to set it aside.

The bottom line is that you must act diligently to protect your interests and respond to a lawsuit in a timely manner.  If you find yourself in a default, seek legal advice immediately to protect your rights.

DISCOVERY 101: An Overview of the Discovery Process

by: Brandi L. Harper

Okay, so you have been sued.  What happens next?  Hopefully you have answered within thirty days of service and the case is proceeding towards trial.  However, unlike TV, cases don’t go straight from complaints to trial.  It is what happens in between the complaint and trial that will be either helpful or detrimental to your case.  The time in between is called discovery.  Discovery comes in multiple forms and is basically meant to do just what it sounds like – discover the facts of the case.

Discovery falls into two categories – written and oral.  Written discovery includes demands for production of documents, requests for admission, form interrogatories, and special interrogatories.  Interrogatories are basically a fancy legal term for questions.  Oral discovery is depositions.  Depositions are basically a question and answer session where an attorney will ask you questions under oath relating to the case.  Some depositions last days, others under an hour.  The length of time depends on the attorney and the case.

Interrogatories

There are two types of interrogatories, form interrogatories and special interrogatories.  Form interrogatories are general questions that are used in nearly every case.  There are different form interrogatories that can be used in different cases.  For example there are general form interrogatories that can apply to every case for general background questions.  There are also form interrogatories for employment law cases that ask questions that arise in employment disputes.  Special interrogatories are questions that are prepared by an attorney that ask specific questions about the case.  For example if the case is a car accident you may ask through special interrogatories questions relating to ownership of the vehicle or specific damages that are alleged. 

Requests for admission

Requests for admission are the most underutilized tool in the discovery process.  Requests for admission are extremely helpful in both small and large cases.  Requests for admission allow you to solidify facts about your case before trial.  For example, in the automobile accident case you may need to establish things like ownership of the vehicle and who was driving.  This can be accomplished through simple requests for admission that asks “Admit you owned the car involved in the accident”. 

Demands for production of documents

Demands for production of documents are exactly how they sound, an attorney demands that you produce documents.  Demand for production of documents along with form interrogatories are common types of discovery.  Often the demand for production of documents may be critical in cases where the dispute centers around contracts and other written documents.  Once the contract and supporting documents are produced this could give the parties a reason to settle.

Discovery is important to a lawsuit.  This is where both parties find facts and evidence that will be used at the time of trial.  The most important thing for a party is to always respond to discovery that is sent to you.  Discovery responses are generally due thirty days from the date served.   Most people do not realize that when they fail to respond to discovery, they are opening themselves up to monetary sanctions for failing to respond, as well as the possibility of having their case dismissed for failure to provide responses.  Most people have difficulty with the discovery process when they are unrepresented.  A verification is always required when you are responding to discovery.  A verification is a form that says your responses are accurate under penalty of perjury.  Failure to provide a verification with discovery responses renders the responses meaningless.  There are multiple legal aid societies and services that can help you at minimal cost to assist you. 

This blog is meant as an overview of different methods of discovery that may be used.  In other blogs, we will discuss the specific discovery mechanisms and how they can be used as well as abused.