You are now sitting down to organize your Discovery Plan and determining what discovery you need to evaluate your case, prepare for mediation, file a motion for motion for summary judgment/summary adjudication and/or get it ready for trial. But where do you start? My suggestion is to litigate like an Egyptian and build a pyramid (pdf). Continue Reading Litigate like an Egyptian
“I DECLARE, IT IS NECESSARY”
As every lawyer is aware, a party may propound more than 35 specially prepared interrogatories or requests for admissions simply by attaching a Declaration of Necessity (pdf) pursuant to C.C.P. §2030.040 (pdf) and C.C.P. §2033.040 (pdf) stating the reasons why they need more. See C.C.P. §2030.050 (pdf) and C.C.P. §2033.050 (pdf). However, when you receive more than 35 specially prepared interrogatories or requests for admissions, you should ask yourself the question “IS IT REALLY NECESSARY?” Continue Reading “I DECLARE, IT IS NECESSARY”
Give Me All Your Documents!
I recently reviewed a case management order in a complex construction case venued in Southern California. The order required all parties to produce:
Any and all relevant non-privileged and non-protected documents (consistent with California Evidence Code Section 250), including but not limited to job files, building contracts, agreements, notes, correspondence, photographs, videotapes, diagrams, plans, specifications, shop drawings, “as-built” plans, calculations, journals, invoices, purchase orders, change orders, addenda reports (including reports prepared by consultants and design professionals for the original construction), job diaries, receipts, project files, site records, daily job logs, field orders, superintendent reports, requests for clarification, requests for information, time cards, governmental inspection punch lists and sign off sheets and invoices relating to the construction, repair, or maintenance of the real property involved in this lawsuit.
There are so many things wrong with this request I do not know where to begin.
Will You Join Me in the Gutter?
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.
The First 120 Days of Insurance Litigation
Bay Area Insurance Coverage Attorney John Podesta brings us this “how to” article on insurance litigation. John has handled hundreds of coverage cases in the ares of 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.
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Your clients have been sued by their insurance company for Declaratory Relief. The insurer asserts that there is no coverage under your clients’ liability insurance policy for a claim made against them. In deciding how to proceed, there are a few things to remember in dealing with insurance litigation. First, the duty to defend is a legal question based upon the “potential” that the lawsuit against your client could result in damages covered by the insurance policy. Montrose Chemical Corp. v. Superior Court (1995) 6 Cal. 4th 287, 300 (pdf). For the duty to defend, therefore, think summary judgment, rather than trial. Second, for indemnity (actual coverage): is the carrier defending or not? With regard to indemnity, whether the insurance company is defending affects the burden of proof. Ultimately, the insured should be prepared to prove, in order to recover indemnity or settlement costs, that their liability is in fact covered by the insurance policy.
Tips and Tricks for Taking Telephonic Depositions
Ran across this helpful blog for taking telephonic depositions by Kramm Court Reporters that I wanted to share with you.
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Everyone is looking for opportunities to save costs these days in litigation. Many attorneys are choosing to take depositions telephonically so as to incur travel costs and to save travel time. Here are some ideas on how to make the telephonic deposition go smoothly.
Continue Reading Tips and Tricks for Taking Telephonic Depositions
GET YOUR COST OF PROOF SANCTIONS HERE!
UPDATED 10/23/2020
As I talked about in my first blog “Why Aren’t You Using Requests for Admissions”, the legislative intent behind requests for admissions is to urge parties to take them seriously. One of the real kickers of this statute is the cost of proof sanctions set out in C.C.P. §2033.420. If the responding party is found to have unreasonably denied a request for admission, that party may be ordered to pay the costs and fees incurred by the requesting party to prove the issue at trial. See Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 736; Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 635-638. The court is required to impose the sanction. Again, the word shall is in the statute.
The Discovery Motion with Teeth
UPDATED 10/23/2020
After a long stretch of depositions, coupled with intense mediation sessions you finally have a day in the office to clean off your desk and catch up on your other cases. Going through the stacks of mail, you unfortunately find the Motion to Have Admissions be Deemed Admitted aka the Discovery Motion with Teeth. Panic sets in. Now what do you do?
Request for Admissions-THE MOTIONS
UPDATED 10/23/2020
There are three motions that you can bring–(1) Motion to Compel, (2) Motion to Compel Further Responses, and (3) Motion to Have Admissions Deemed Admitted. All of them have their place in your discovery plan but two of them–Motion to Compel Further Responses and Motions to Have Matters Deemed Admitted must be in your arsenal. Though they appear to be the same motions you would use for interrogatories, inspection demands, and depositions there are a few noteworthy twists and turns.
The Battle Before the Battle
When I was a research attorney in the Law and Motion department for Alameda County Superior Court, I handled the ex parte calendar. My judge instructed me to obtain the facts and arguments from counsel, do my own research if necessary, and present the ex parte application and my recommendation to her. Early in my career at the court, I handled an ex parte application on a case that had apparently been up and back from the Court of Appeal. When I asked for the facts of the case from counsel, he shot back at me saying “The judge knows this case because she was writted.” I told him I needed to know the facts of the case so I could provide her with my research and recommendation. He refused. When I walked back to the judge’s chambers, I overheard the counsel tell his client “She must be new because everyone knows this case.”