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At the 22nd Annual West Coast Casualty Seminar, Plaintiff counsel Michael Kennedy, General Contractor Counsel Matthew Hawk, Subcontractor Counsel Brian Sanders, Claims Manager James Rzpecki and I presented a new protocol for how to litigate construction defect cases. This new protocol is in compliance with the Code of Civil Procedure as well as the current case law.  But, more importantly these new Case Management Orders address the concerns that the parties have with the current process and provides them with admissible evidence in order to adequately evaluate their case and  be prepared to have a meaningful mediation within six months of the litigation. Continue Reading WHAT IS WRONG WITH THE CURRENT CMO PROCESS IN CONSTRUCTION LITIGATION? And yes, there is a better way!

 

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If you perform a Lexis search using the words “Special Master” in the Code of Civil Procedure you will find “no results.” This is because there is no statutory authority for such an appointment. Yet, in the area of Construction Litigation the parties regularly stipulate and the courts appoint a Special Master to handle the case management, discovery rulings and settlement conferences under a Case Management Order.

Continue Reading Without Consent of the Parties . . .

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John Podesta, an insurance coverage attorney in San Francisco, brings us his perspective on why the Form Interrogatories for Construction Defect should be used. John has handled hundreds of coverage cases  involving Construction litigation and other complex matters for over twenty years.  He is a nationally known speaker on Insurance Coverage issues in Construction and has written several articles on the subject.  He is also the author of the insurance Interrogatory 304.1 of Construction Litigation Form Interrogatories.

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It is generally recognized that construction defect cases are some of the most expensive, and complicated, cases being litigated in California.  I have personally been involved in cases with more than 75 payors contributing to a settlement, including contractors, insurers, and sureties.  I have witnessed them from the beginning of the modern Special Master programs in the 1980’s through the single assignment Special Masters (both mediator and case management/discovery referee) and the dual reference (where the case manager/discovery referee and the mediator are separated) and cases with no outside supervision and the case is handled per the CCP.  In all these cases, the same question is asked by the carriers:  “How can we get these cases evaluated and resolved quicker and less expensively?”  And the related question: “If this is a case that needs to be tried how can we get to that decision point as soon as possible?Continue Reading Why Every Insurance Carrier Should Insist That The New Construction Form Interrogatories Be Used

Referee Time Out.jpgLast November I received the following e-mail:

Since courts are so overwhelmed and setting dates for hearing is now running 6 months or longer, how does one do motions to compel further responses to interrogatories in a meaningful way? I booked the first available date with the court, but it is not until next June and I need the responses in order to know what documents to request. Any ideas? 

It is unfortunate that the California budget crisis has so imploded civil litigation in our courts. Despite the fact that discovery is the heart and soul or your case and you are entitled to compliance with your discovery requests; law and motion departments typically give discovery motions the lowest priority on their calendar. So, what do you do? Continue Reading Is It Time to Appoint a Discovery Referee?

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Last week I received a phone call from an attorney asking what is the authority that says a party has the right to conduct discovery.  I responded, “The Discovery Act!”  Counsel stated that they needed more because a special master in their construction defect case refused to allow them to serve discovery and was demanding authority to prove that they had such a right.  I thought it was such a basic concept in civil litigation that I was amazed that it even was an issue.

I went to the discovery treatises in order to provide the attorney with authority.  I reviewed Weil and Brown California Practice Guide Civil Procedure Before Trial (TRG 2013), California Civil Discovery (Hogan and Weber 2013) California Discovery Citations (TRG 2013) and California Civil Discovery Practice (CEB 2013).  The CEB treatise had the best discussion regarding a party’s right to discovery in a civil action.  The following is an excerpt from the book: Continue Reading You Have The Right To Conduct Discovery!!

iStock_000000215562XSmall.jpgLast week I received the following e-mail from one of my readers:

I have read your articles with interest and respect for some time now; I find them excellent plus.I have a friend who is acting pro per in a civil case. Suffice it to say she can’t afford or get an attorney.

Opposing counsel has made a mockery of discovery by making (putrid) garbage objections to 99% of discovery sent him. He uses every boilerplate objection and has even objected saying some discovery was “unintelligible” when my friend didn’t define a name that was the name of the defendants product…  Opposing counsel is clearly abusing the intent of discovery dragging my friend into “Meet and Confer Hell” while knowing that as a pro per, my friend can not get anything more at this point than her costs of filing a Motion to Compel (which she has won) and photocopy costs. On the other hand, and I speak with authority, opposing counsel has created enough work for himself to literally turn a reasonably moderately sized case into a major matter and I would estimate he has made more than $250,000 in fees from his client (no insurance company involved) in 2011.

My point being: There is clearly a wrong here (major discovery abuse and a lack of any good faith) and no remedy.Am I being naive in thinking something should be done or a remedy created? Continue Reading Am I Naïve to Think Something Should Be Done?

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Growing up in an Italian household, our dinners consisted of salad, pasta, wine and an argument. Afterwards we all went out for ice cream with no thoughts of the argument that took place at the dinner table. That is because we thought of arguments as a sport and there was no reason to hold any grudges.  However, when I became a lawyer I was surprised to find that lawyers did hold grudges despite the fact that law by its nature is an adversarial process and we are professional arguers.

The disdain and hated that can spew from even the most professional of lawyers can be astonishing. At times you wonder where it comes from.

Continue Reading Will You Join Me in the Gutter?

Referee.jpgNine years ago, in the middle of a Deposition, defense counsel called plaintiff counsel a “Bitch.” Plaintiff counsel immediately filed a motion for a Discovery Referee and I was appointed. The court ordered that I sit in on all the depositions and attend the site inspection. All communication including the scheduling of discovery was to be done through me.

When I look back on this case,  I realize that the moment defense counsel used the word “Bitch” it became the turning point of the case. These two well-respected attorneys’ hostility toward one another drove the case. There were no more professional courtesies and the parties took extreme positions in their settlement negotiations. The case eventually went through a lengthy bench trial and appeal process that lasted years before plaintiff recovered an eight-figure judgement.

Continue Reading When an Apology is a Discovery Response

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A few months back I received an e-mail from a court reporter regarding a very unpleasant incident that occurred in a deposition. It went like this:

So…during questioning the attorneys were apparently getting to a very sensitive area of inquiry — and [Attorney #1] had already argued with all of the other attorneys — so, he stared me straight in the eye and said, “God damn it, when you’re asked to read a question back, you don’t just read a question, you read the answer also, do you hear me? Now I’ve got to object and say it’s asked and answered when if you would just do your fucking job I wouldn’t have to do so. When it happens again, you better read it the right way.”

Continue Reading The Goddess of the Deposition