TOP TEN RULES FOR TREATING CLIENTS:

After practicing law for 39 1/2 years, I have certain rules that I adhere to in representing clients.  My Top Ten List is as follows:


1.  Return Phone Calls and E-mails: In dealing with prospective clients who have already retained legal counsel, their biggest reason for dissatisfaction is the inability of their attorney to communicate with them, especially in not returning phone calls and e-mails.  If a client calls you and leaves a message or hits your voicemail, they deserve a reply ASAP.

2.  Written Fee Agreements:  Under the Business & Professions code, lawyers are required to reduce fee agreements to writing when representing clients in matters wherein the fees are expected to be $1,000.00 or more, or in contingency fee agreements, absent a preexisting arrangement or relationship with the client.  The fee agreement must also advise the client that the fee is negotiable, and if the lawyer is not carrying malpractice insurance then the lack of coverage must be disclosed as well.

Most attorney fee contracts are far too long and too complicated for the average client to understand.  I have managed to keep my form retainer agreement that I have used since I was first in practice to one page only, and it complies with all requirements imposed on the profession by the professional rules of conduct.

3.  Monthly Billing:  Clients deserve to get a bill each month on hourly cases so they can see what they are being billed for and address it before problems or dissension arise down the line due to lack of periodic billing.

In contingency fee arrangements wherein the lawyer commonly awaits a resolution of the case before being reimbursed their out of pocket costs, the client should still get a monthly bill so they can keep track of the costs as they occur.

Fees and costs can often influence the client on the course that they want to take with any claim or case, so they need to be kept periodically informed of same in order to make decisions that are appropriate for them.

4.  Civility With Opposing Counsel:  Exercising cooperation and congeniality with opposing counsel can actually inure to the client's benefit.   When an attorney can effectively communicate with the other party's attorney, it can help to facilitate a possible settlement dialogue and also help to avoid needless law and motion over discovery disputes or other issues.

5.  Explain How The Law Works:  Most clients are not that familiar with the law.  By explaining it to them and how it may affect their case, clients can more easily understand how the legal system will view the case and they will be more at ease in following their attorney's advice.

6.  Copy The Client on All Correspondence and Pleadings:  Clients have a right to be informed on the progress of their case, and by copying a client with all significant correspondence and pleadings the lawyer does just that.

7.  Move The Case Along:  Client matters should be actively worked on, even though an immediate resolution of the case may not be possible due to the circumstances of the matter (i.e., awaiting a personal injury client's recovery or the waiting time to get a trial date).  Preparing a case for trial is the best way to achieve a settlement, especially when dealing with an insurance company.

8.  Advise The Client in Writing or in Person of All Significant Events:  Clients deserve to be kept in the loop on all significant developments and occurrences in their matter, including the formulation of a settlement demand and important events in litigation such as depositions and defense medical examinations.  Informed clients are better able to make decisions that will hopefully adhere to their lawyer's advice on the subject.

9.  Don't Make Promises You Can't Keep:  Lawyers should avoid making representations to prospective clients about obtaining recoveries for certain set dollar amounts or in promising a specific outcome if the matter is litigated.  You need to live with any given case for awhile and see how the evidence sorts out before you can be more specific with a client as to a probable outcome.  Prospective clients should avoid retaining lawyers who sound like they are promising the moon.

10.  Treat the Client the Way You Would Want to be Treated:  Lawyers are in the service business and they should treat their clients the way they would want to be treated if they had to retain counsel (yes, lawyers do hire other lawyers to represent them in various matters).  People paying for service deserve service.

THE COLLATERAL SOURCE RULE

One of the basic tenants of tort law is that of the Collateral Source Rule (CSR).  Under the CSR, the fact that an injury victim uses their own medical insurance (defined to include medical insurance, HMO benefits, automobile insurance medical payment coverage, Medi-Cal benefits, Medicare benefits, VA benefits or any coverage of medical bills by a collateral source) to cover their medical bills does not result in a credit to the tortfeasor for the amount of such payments.

The tortfeasor (and their liability insurance carrier) remain liable for the full amount of the reasonably incurred medical bills, and without credit for the fact that the injury victim's collateral sources have paid all or part of the bills.

The only limitation on the CSR in regard to medical bills is that the tortfeasor is never responsible for more than the "adjusted" amount of the bills, that being the net sum that the medical care provider has accepted as payment in full from either the injury victim and/or their collateral source, as opposed to what the gross amount of the bill is.

The rationale for the CSR is that the tortfeasor should not benefit from the prescience of their victim in having the forethought to have collateral source coverage.

Most collateral sources have reimbursement rights (aka "subrogation") for the amount of the benefits expended should the injury victim obtain a settlement or recovery, so that is another reason that the tortfeasor should not receive credit for collateral source payments.

The CSR also applies to claims for loss of earnings or wages due to having been injured.  As such, if the injury victim receives state disability benefits, private disability benefits, or sick pay benefits from their employer, the tortfeasor does not receive credit for such payments.

One interesting wrinkle to the applicability of the CSR to disability retirement income benefits was recently addressed by myself in an article that I authored in the Fall 2017 issue of The Gavel, the official publication of the Orange County Trial Lawyers Association.

The article is reprinted on my website at http://www.stridlaw.com/gazette.php

Bad Neighbor Cases

A not uncommon inquiry that I receive from prospective clients deals with issues involving abusive or obnoxious neighbors, or what is generically referred to as a "bad neighbor" case.

The typical case involves a homeowner or renter who has problems with an adjacent next door or across the street neighbor, the latter of whom engages in a consistent pattern of harassment.  Common complaints include making false police reports, abusive/offensive language, undue noise, parking issues, unruly kids, dumping debris across property lines, and petty vandalism.

Many of these prospective clients want to seek a restraining order (RO), but this is a difficult remedy to obtain, much less to fashion.  To obtain a RO, the complainant must prove by clear and convincing evidence (a much higher burden than the usual "preponderance of the evidence" that is the norm in most civil actions) that unlawful harassment has occurred.

Unlawful harassment means much more than somebody taking offense at an obnoxious person -- it requires evidence of stalking, physical violence, or a reasonable apprehension of physical violence.  You can't get a RO just because you don't like somebody.

As imposition of a RO can have negative consequences against the person that is being restrained, so most judges will require proof of something that equates with actual criminal behavior.  Imposition of a RO can result in loss of firearm possession or a negative reference in a background check, not to mention the imposition of criminal penalties (fines and incarceration) if  subsequent violation of a RO is proven, so judges require a clear showing of unlawful harassment before they will impose so drastic a remedy.

The usual RO will require the offending party to stay a certain distance from the party seeking the relief, i.e., "come no closer than 300 yards and do not contact that person".  However, in a "bad neighbor" context, where the offending party lives across the street or next door, such stay away orders are nearly impossible to impose given the proximity of the parties to each other.

The filing of false police reports is also difficult to remedy, as a civil action for damages based on such a theory may embroil the plaintiff at the wrong end of an anti-SLAPP motion under C.C.P. sec. 425.16 (this subject is beyond the scope of this blog, but information on it can be found in The Legal Gazette section of www.stridlaw.com) and which could find the plaintiff being ordered to pay for the defendant's attorney's fees and costs.

This is because the filing of a police report is a First Amendment exercise in petitioning the government for redress of grievances.  Suing in civil court for damages for activity that falls within the First Amendment is a major uphill battle.

Unfortunately, the law is of limited use in the context of a bad neighbor case.  The party suffering such problems may often be better served by retaining a realtor, as opposed to an attorney.

Bottom-line:  you don't have to love your neighbor, but you should go to reasonable lengths to avoid a confrontation with same, even if you don't want to.

STRATEGIES IN CLAIMING MEDICAL BILLS AS DAMAGES IN A BODILY INJURY CLAIM:

Over the past number of years, a series of groundbreaking case decisions have seriously affected both the amount and the procedure for a claimant in a bodily injury case to seek damages for their medical bills incurred to treat the injury.

Under a line of decision which may be generally referred to as the Hanif/Howell progeny of cases (see my blog from 2014 as to how this case law evolved), a claimant can only claim as economic damages the full amount billed by any given healthcare provider if there have been no payments made on the bill from a collateral source, such as the claimant's own medical insurance.  If there have been any payments from the claimant's own medical insurance and the provider has adjusted their charges in reciprocity for being paid, then the maximum amount that the claimant can claim as damages is the adjusted amount received by the provider as payment in full (i.e., the amount paid by the claimant's own medical insurance plus any out of pocket co-pays or deductibles personally borne by the claimant).

As most healthcare providers will routinely adjust their total charges in order to get timely payment from medical insurance, this will reduce the amount that the claimant can otherwise claim as damages.  For the reasons stated hereafter, this is not necessarily a negative thing.  Under what is known as the Collateral Source Rule, the fact that the claimant's own medical insurance paid some of the bills is not admissible as evidence at trial, nor does the defendant get a credit against what they are legally responsible for in medical expense damages just because the claimant's own medical insurance paid down the bills.

The public policy upholding the Collateral Source Rule is that the negligent defendant should not benefit from the claimant's prescience in having health insurance to begin with.

The plaintiffs' trial bar has had a difficult time in accepting the Hanif/Howell restrictions on what amounts can be claimed as medical damages in light of the above.  This is especially true where the claimant's medical expenses have been paid down via a governmental assistance source like Medi-Cal or Medicare, and which pay the provider pennies on the dollar as payment in full.

In the experience of this practitioner, many plaintiffs' attorneys will counsel their clients NOT to use their own medical insurance, or alternatively won't even apprise their clients of the impact of Hanif/Howell on their claim, much less of what may happen if the recovery at trial isn't sufficient to cover the unpaid medical bills.

In the opinion of this practitioner, in order to protect the client the attorney should always counsel the client to use their own medical insurance (or governmental assistance program) to pay down their bills, to the extent that they have coverage and the healthcare provider will accept it.

There are three (3) basis reasons behind this approach:

1.  Even when liability in a personal injury case is clear, there is no guarantee that a plaintiff will recover any damages at all if the case goes to trial.  If the plaintiff still owes medical bills for treatment of their injuries and the bills were not submitted to their medical insurance carrier in a timely fashion, then if they get nothing or an amount less than the bills at trial then they will be left holding the bag for personal responsibility for paying same.  Medical insurance companies require timely submission of bills as a condition of extending coverage benefits.

2.  Given the Hanif/Howell authorities, some trial judges may allow the introduction into evidence at trial of the plaintiff having available medical insurance, at least if it has not been utilized.  This is because the plaintiff has an affirmative legal duty to mitigate their damages, and the defendant will argue that they did not do so by not using their own medical insurance.   This type of evidence, if admitted, would give the defendant the argument that the plaintiff should get nothing in damages for their medical bills, and will cast the plaintiff in an unfavorable light in front of
a jury.

3.  Whether medical insurance is used or not, the defendant's obligation to pay economic damages for medical bills is limited only to those bills that are "reasonable and necessary".  There is even a jury instruction on this point.  When the bills haven't been submitted to medical insurance and the provider is treating solely on a lien basis, then many such providers will commonly "jack up" the amount of the bills given the fact that they may not be paid for as long as a year down the line, and they expect the plaintiff's attorney to try and negotiate with them after the case is resolved to take a lesser amount as payment in full.  Such inflated lienholder bills are harder to characterize as being "reasonable and necessary".  The argument becomes easier for the plaintiff to make if the bills have been adjusted downwards due to payment being made by their own medical insurance carrier.

It is somewhat of an open question as to whether it constitutes legal malpractice for a plaintiff's attorney to counsel their client not to use their own medical insurance to pay down their bills.  But at the very least, it is potentially very dangerous for the plaintiff not to do so.  The attorney should explain to the client the potential pitfalls of not doing so.

Attorneys should err on the side of caution and put their client's case and financial situation in the best possible position, especially if the matter does not turn out so favorable for the client in the long run.

MEDICAL BILLS AS DAMAGES IN A PERSONAL INJURY CLAIM

The subject of what you can claim in personal injury cases as damages for medical bills has received a lot of attention in the CA appellate courts over the past several years.  There have been hotly contested issues wherein the concept of the Collateral Source Rule, and which generally holds that the defendant does not get credit for payment of the plaintiff's medical bills by the plaintiff's own medical insurance, has been at odds with situations wherein a given healthcare provider has accepted payment in full from the plaintiff's medical insurance for less than the full amount of its bill, a not uncommon occurrence in the age of managed healthcare.

The appellate decisions have moved to a point where the plaintiff now cannot recover an amount greater than what the healthcare provider accepted from the medical insurance as payment in full, as opposed to recovering the full amount of the bill.

I authored an article on this subject entitled "Biting The Bullet -- Medical Bills In A Post Howell-Corenbaum World" that was published by the Orange County Trial Lawyers Association in the Spring 2014 of its journal The Gavel, as follows hereafter:

BITING THE BULLET: MEDICAL BILLS IN A POST
HOWELL-CORENBAUM WORLD

NOTE: This article was authored by Lawrence A. Strid and was published in the Spring 2014 edition of the Orange County Trial Lawyer’s publication “THE GAVEL”.  The article is copyrighted to the OCTLA but is being republished with their permission.

    Any prudent personal injury practitioner is aware of the groundbreaking precedent established in
Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, holding that a plaintiff in a personal injury claim cannot claim more for past economic damages for medical expenses than what the healthcare provider accepted from a collateral source as payment in full, be the collateral source the patient’s own medical insurance company or a co-payment directly paid or owed by the patient themself.
    The ruling in Howell was an extension of a similar ruling in the equally ground-breaking case of Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, and which dealt with a plaintiff’s medical expenses being adjusted and then paid by Medi-Cal.  Despite Hanif being limited on its facts to a Medi-Cal beneficiary, many liability carriers in evaluating bodily injury claims post-Hanif would only consider the adjusted medical expenses, regardless of the nature of the collateral source provider, to the general consternation of the plaintiffs’ bar thereafter.
    Similar to Hanif, the case of Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, was usually cited in conjunction with Hanif by the defense in attempting to limit claims for medical bills to what the provider received and accepted as payment in full, prior to the Supreme Court ruling in Howell.
    Howell did not directly address the admissibility at trial of the full amount of the medical charges as billed, and inferred that such evidence might still be admissible in order to prove whether the claimed medical expenses were reasonable and necessary.  See Howell, supra, at 52 Cal.4th 577-578.
    Accordingly, in a post-Howell era, most plaintiffs’ attorneys attempted to submit evidence at trial of the full amount of the medical charges as billed, and then dealt with the pertinent Howell reduction by stipulation or a motion post-verdict.
    Attorneys who took this approach would rely on pre-Howell case authority, with some cases holding that the full amount of medical charges as billed were still relevant as to an assessment of non-economic damages.  For example, see Greer v. Buzgheia (2006) 141 Cal.App. 4th 1150, 1157; and Nishihama, supra, at 93 Cal.App..4th 309.
    That approach was dealt a death-blow by the subsequent ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308.  Further clarifying the ruling in Howell, the court in Corenbaum held that evidence of the full amount of the medical charges as billed is simply not relevant to the determination of the plaintiff’s economic damages at trial, and that evidence of the adjusted amount accepted by the healthcare providers from a collateral source is not made inadmissible by the collateral source rule so long as the source of the payment is not disclosed.
    Corenbaum further held that evidence of the full amount of billed charges vs. the adjusted charges after receiving payment from a collateral source would only serve to confuse the jury, and was not relevant to proving non-economic damages or future medical expenses.  Corenbaum, supra, at 215 Cal.App.4th 1329.
    Historically in personal injury practice, the amount of a plaintiff’s medical expenses has usually been the “barometer” of the value of any given personal injury case – the greater the amount of the bills, then arguably the greater the severity of the injury; and the greater the severity of the injury, then the more the case was theoretically worth.  While it may have been an urban legend to some degree, surely every personal injury attorney (and even some non-lawyers) have heard the old adage about any injury case being worth at least “three times the meds”.
    When collateral insurance adjusts a provider’s bills, the results can often be dramatic in the reduction of the medical charges that would be admissible at trial – reductions of 50% or greater are not uncommon, and if a public benefit collateral source is involved, such as Medicare or Medi-Cal, then the amount of admissible medical charges may end up being ten cents on the dollar.  Worst of all are those patients who belong to certain HMOs, where the charges incurred with their primary physician may be “capitated” down to zero or a nominal co-pay.
    The law is therefore clear on the limits of what the plaintiff can claim for medical expenses.  The bigger question that this article intends to address is whether this application of the law is being followed by the plaintiffs’ bar.
    In the personal experience of this practitioner as derived from being an arbitrator at court ordered arbitrations, as a designated neutral in mediation sessions, and as a settlement officer at settlement conferences conducted at Orange County Superior Court, most plaintiffs’ attorneys still present evidence of the full amount of medical charges billed, and ignore any adjustments called for by Howell and Corenbaum.
    Many of these plaintiffs’ attorneys do not even have the amounts of the adjusted medical bills set forth in their briefs or settlement statements, much less being able to relay what that adjusted number is when confronted with that question.  Rest assured that defense counsel and the adjuster have this information calculated down to the near penny. 
    The only reasons that this practitioner can envision as to why a plaintiff’s attorney would not have the adjusted medical expenses itemized at their disposal would be that (1) they are hoping that the defense carrier and their counsel have never heard of the holdings in Hanif, Howell, and Corenbaum; (2) it is too much work to review the bills and explanation of benefits and calculate the adjusted medical expenses yourself; and/or (3) it is easier to rely on the defense to provide the adjusted medical expenses and hope that their figures are correct.
    None of these reasons make any sense, and the failure of the plaintiff’s attorney to directly deal with the adjusted medical expenses will mean that a critical aspect of the value of the case is being ignored, and it can also leave a less than favorable impression with the defense carrier’s perspective on the expertise of the plaintiff’s attorney.
    If there is a bright side to this development in the law for the plaintiff’s bar, it might be that it is now easier to argue that the medical expenses are reasonable and necessary, after they have been adjusted.  Moreover, some defense attorneys will stipulate at trial as to the amount of the adjusted figure so that the custodians of record of the various providers don’t have to come to trial to testify, and the evidence for the total adjusted expenses can then be reduced to a written summary that the plaintiff’s testifying physician can lay a foundation for, so that just the summary alone can come into evidence.
    Notwithstanding the writing on the wall as to the admissible amount of past medical expenses, some plaintiff’s practitioners have been creative in attempting to circumvent it, in one of two methods: (1) counseling the client not to utilize their medical insurance to defray their past medical bills; and (2) utilizing a “factoring” company to assume legal title to the bills.  Both of these approaches leave much to be desired and a lot to risk for both the plaintiff and their attorney.
    Insofar as not billing the client’s medical insurance, this issue would probably not arise to the extent that a client requires emergency medical treatment, and at which time they are more interested in seeing a physician on an emergency care basis versus immediately consulting with an attorney.  Most emergency care providers collect the patient’s medical insurance information as a condition of admission, and automatically bill the carrier thereafter.  Few clients, if any, would be aware of the consequences of Howell and Corenbaum until after they have consulted with counsel.
    As to non-emergency care providers that the client may see thereafter, if the client has applicable medical insurance that would defray all or part of such expenses, it is the opinion of this practitioner that an attorney who advises their client not to utilize their insurance is most likely doing their client a disservice, and may be setting themselves up for a legal malpractice case down the road.
    As the saying goes, there are only two things in life that are certain, and the end result of a legal claim or a personal injury lawsuit do not fall into either of those two categories.  Most policies of medical insurance require that the bills be submitted to the insurer in a set window of time to qualify for benefits, and the majority of most mainstream healthcare providers will not take a lien.  Many healthcare providers that will not take a lien will send the account out to collection if no payment is forthcoming in a fixed period of time, and which may lead to a negative credit history report, collection agency activity with inflated interest charges being tacked onto the bill, or even a collection lawsuit being filed against the client.
    Meanwhile, the client’s claim or legal case grinds on, with the eventual monetary outcome never a certainty until it occurs.  As any attorney knows, there are any number of myriad reasons as to why cases are lost or under-compensated for in the claims and litigation arena.  If the end monetary result is less than sufficient to satisfy outstanding medical bills that the attorney has advised their client not to submit to their insurance, and then it is too late to do so thereafter, then the attorney will be a natural target of blame by the client, had timely billed charges to their medical insurance been counseled and then satisfied in whole or in part by their medical insurance.
    In addition, the personal injury victim has an obligation to mitigate their damages, and a failure to submit medical expenses to an insurance carrier that may have satisfied such expenses may leave the client’s case vulnerable to this argument. 
    The other mode that may be used to avoid the ramifications of the adjusted medical billing is to have the full amount of the bills assigned to a factoring company, and then the attorney negotiates with the factoring company after the settlement to try and reach some sort of compromise on what it will take to satisfy same.
    This latter approach was recently addressed in the recent case of Dodd v. Cruz (Second Appellate District, February 5, 2014) __Cal.Rptr.3d __, WL 461158, LEXIS 118.
    In Dodd, a plaintiff involved in a motor vehicle accident had shoulder surgery performed on a lien at a surgery center.  This provider then sold the lien to a factoring company.  The defendant attempted to subpoena the records from the factoring company to determine what was paid on the assignment of the lien.  The factoring company refused to comply, objecting on the basis of confidentiality, proprietary concerns, and relevance.
    The trial court granted its motion to quash, but on appeal the appellate court reversed, citing both Howell and Corenbaum, in holding that the amount paid for the provider’s account receivable was reasonably calculated to lead to the discovery of admissible evidence as to the reasonable value of the medical services provided.  Whether or not such evidence would be admissible, it could be relied on by expert witnesses to opine what the reasonable charges should be.
    In Dodd , the president of the factoring company was the plaintiff’s own attorney, and which adds another interesting hair in the ointment insofar as a potential conflict of interest may be concerned.  Furthermore, one of the surgical center’s limited partners was the brother of the factoring company’s vice-president.
    From this practitioner’s perspective, attorneys  counseling clients not to use their medical insurance or for the attorney to be directly (or even indirectly) involved in assignments of medical liens, just to avoid the ramifications of Howell and Corenbaum, are creating liability scenarios for themselves and pitfalls for their client’s case.
    There have been other changes in the law over the passage of time that have not been plaintiff friendly: the passage of MICRA; the Fair Responsibility Act codified in Civil Code secs. 1431.1 and 1431.2; the demise of Becker v. IRM Corp.; and other changes in codes and case law have sometimes curtailed the ability of some injured parties to obtain full or certain types of compensation, given the fact situation of any given case.
    Notwithstanding this, injured parties can still obtain compensation given the facts and coverage applicable to any injury incident, and the plaintiff personal injury bar shows no immediate sign of dropping personal injury cases and trying to practice family law or immigration law as a fall-back practice after the rulings enunciated in Hanif, Howell, and Corenbaum.
    From the perspective of this practitioner, it is best to “bite the bullet”: calculate and present the adjustment on the medical bills to the defense carrier and defense attorney (including any calculation thereof in response to a defendant’s form interrogatories), to any neutral presiding over a settlement conference or mediation, and to the ultimate trier of fact.  Put the best slant possible on your client’s case given the other factors in the case that would be an argument for greater value being placed on the matter – it is all any self-respecting plaintiff’s attorney can do.
    

CONTAMINATED FOOD PRODUCT CASES:  BE CAREFUL WHAT YOU EAT

Some of the more interesting cases that my offices have been involved in have concerned food products or dishes that contained contaminants that should not have been there.  Because this is an unavoidable risk of eating food, but is something that nobody would want to encounter, these types of cases tend to be somewhat unforgettable even with the passage of time from having handled such matters.

The law imposes strict liability for certain injuries as a matter of public policy, in certain types of cases.  If a food product has a contaminant in it that is not natural to the preparation or nature of the particular product, then the law will impose strict liability for all resultant injuries, regardless of whether or not the purveyor or vendor of the food product was negligent in the preparation of same.

Under what has come to be known as the "consumer expectation test", if the contaminant in question is not natural to that food product, then strict liability will apply.  On the other hand, if the contaminant in question is natural to that food product (ie., a bone fragment in a meat or fish dish), then strict liability will not apply, and the injured consumer can only assert negligence as the basis of a legal claim.  This may be difficult or impossible to do given the circumstances of any particular case, as the law only requires that a person owing a duty of care to another act "reasonably", not "extraordinarily reasonably".

Some of the non-natural contaminant cases that I have been involved in over the years have included broken glass in a dinner salad, worms in a candy bar, a piece of clear plastic in a container of mashed potatoes, a band-aid in a deli sandwich, and pieces of metal in fast food burgers (the latter situations were nearly always the result of the metal ring used to secure the ends of  commercially prepared plastic rolls of ground round somehow ending up in the patty, although I had one case wherein the piece of metal was a heavy gauge staple on a hamburger patty (this is not an advisable way to secure the cheese to the patty).

Much more difficult are cases wherein the consumer alleges to have contracted food poisoning due to ingesting a certain food product.  Proving that a specific food item caused food poisoning when the consumer most likely had several meals over the past 24 hours from other sources can be an uphill battle.  Moreover, many "food poisoning" claims are based solely on various subjective symptoms that cannot be medically correlated to a true situation of food poisoning.  The cases that I have been successful with in this area have all involved situations wherein there were multiple victims who had all consumed the same product from the same source.  There is strength in numbers.

In many food contaminant cases, the potential damages are somewhat nominal.  While anyone would probably have revulsion or distress at finding certain contaminants in their meal, those cases are not worth as much as those wherein the consumer requires medical or dental care to treat an actual physical injury arising out of the experience.

As might be expected, some food contaminant claims are looked at askance by the defendant, as they can be easy to fake by a dishonest person.

If you are the actual victim of a food contamination incident, it is important to remember the following:  (1)  make an immediate report or complaint to the vendor of the product or dish; (2)  save the contaminated object -- many restaurants or retailers will want to take immediate possession of whatever you may have found, but do not surrender what is now "Exhibit A" -- they can look at it later in a controlled setting after a formal claim is made; and (3)  seek medical or dental care immediately if a physical injury or significant distress is involved.

Lastly, I must share my favorite "food" contaminant case of all time.  This one was not a case that I handled, but I remember it from law school, and even then it was only a footnote in a products liability treatise that I was required to read.  The footnote referred to an actual case where a consumer bit into a plug of chewing tobacco and encountered a severed human toe.  While some may view this as an object lesson as to why you shouldn't  be using "chaw", my question was how this unfortunate soul was able to tell the difference between the "chaw" and the toe.  And that is why I don't use chewing tobacco.

Civility In Law Practice

Many clients in adversarial matters view their party adversary as the enemy, and by association, have a similar feeling about their adversary's attorney.  This is especially true in family law, probate proceedings involving opposing family members, and in business litigation wherein the parties had a working or personal relationship in place before a dispute arose.  These clients often have a problem understanding how their respective attorneys can communicate in an amicable fashion, given the emotional baggage that they may be bringing to the fore.  An attorney can always accomplish more for their client by having an open line of friendly communication with the opposing attorney, although depending upon the client it is not necessarily something that should be openly advertised in the client's presence, like a courtroom hallway.  A working relationship can help to avoid motions (and which are expensive for the client) and achieve stipulations to certain issues (and which again are usually a cost-saving procedure for the client) that are in the client's best interest.  In those situations wherein opposing counsel do not get along, an effort should still be made to do so, as it is the professional high-road to take.  Letting opposing counsel know what you really think about them in a negative way will cloud a lawyer's objectivity and open the door for eating a big dose of humble pie if things don't go the way you want them to at court.  The legal community can be a relatively small one, and you may encounter a former opposing attorney in a new case one day, and wherein you need a favor.  Don't burn your bridges.

E-FILING TO BE MANDATORY THROUGH-OUT THE STATE

It looks like the Judicial Council is going to make it mandatory to E-file all courthouse filings through-out the state within the near future.  An initial pilot program requiring E-filing at Orange County Superior Court has already been in effect.  The OCSC E-filing project initially only applied to complex cases, and then was gradually expanded to include all filings over a phased-in period of time.

E-filing means that the litigant must download his legal pleadings and send them to an approved vendor, who will then electronically file same with the court.  Either the litigant or the vendor must have an approved on-line payment system in effect in order to satisfy any filing fees required by that particular court.

As is the case with all things in the computer age, there are advantages and disadvantages to E-filing.

Advantages allow the litigant to directly file their pleadings, without traveling to the courthouse to do so; and to file documents as late as midnight of the given business day in which they are filed.  The latter fact may be important if a litigant is trying to get something on file before a relevant Statute of Limitations expires.  You also don't have to stand in line at the clerk's offices to get something on file.

Disadvantages would include the following:  A service fee is charged by a vendor for each E-filing, using in the amount of $9.95 for all court documents pertinent to one case that are being E-filed at one time; you must go to the trouble of scanning each document that must be E-filed (many times various types of motions may literally include dozens if not hundreds of pages); many vendors charge the litigant an "advance fee" for all filing fees that they advance on behalf of the litigant; and to those who do not have a computer or are unsophisticated re same, the E-filing requirements may be a major hassle or outright obstacle, especially if they do not have an attorney and are representing themselves in an action.

Bottom-line: E-filing is inevitable, but it costs litigants more for the ostensible purpose of making the court system more efficient.

SHIN v. KONG (2000)

I successfully represented the defendant physician in this appeal back in 2000.  One of the interesting things that happens when an appellate decision becomes reported, as this appeal was, is that other attorneys and courts can cite it as legal precedent, and which has occurred several times with this case in subsequent decisions.  The casehttp://caselaw.findlaw.com/ca-court-of-appeal/1402969.html stands for the legal proposition that a physician owes a duty of care to his patient, and not to the patient's spouse whom he is not treating.  It is also significant for its reinforcement of the "anti-heart" balm statute as embodied in Civil Code section 43.5 as first enacted in 1939, and which prohibits civil damage actions for alienation of affection, seduction of an adult or "criminal conversation" (aka committing adultery with another person's spouse).  The practice of law was probably more exciting before this code section was enacted.

BUDGET CUTS FURTHER IMPACT ORANGE COUNTY SUPERIOR COURT

The state's budgetary woes have already severely impacted the court system, especially in San Francisco and Los Angeles, where various subsidiary courts have had to close, resulting in longer waiting periods to get to trial and more travel time for litigants to attend court hearings.
Orange County Superior Court has been affected as well, although I believe it is one of the better managed county court systems in the state and has thereby been able to avoid many of the court closures that have affected other counties.
That is about to change on July 1, 2013.  At that time, the following changes will occur:

     The limited jurisdiction court in Laguna Hills will close.  This courthouse serviced South Orange County in small claims, traffic, civil harassment, unlawful detainer, and limited jurisdiction civil cases where the amount in dispute was less than $25,000.00.  Thereafter, the limited civil cases will be transferred to the Central Justice Center courthouse in Santa Ana, and the other matters will be heard at the Harbor Justice Center in Newport Beach.

     Probate and mental health cases, which used to be heard at the Lamoreaux Justice Center in the City of Orange, will also be transferred to the Central Justice Center.

     Family law cases (divorce and separation cases, adoptions, etc.) that were formerly heard at the Central Justice Center will be centralized and heard only at the Lamoreaux Justice Center.

Across the state, $260 million is being cut from court budgets, with Orange County bearing slightly more than 8 percent of that number.

This will probably result in longer waits for trial on civil matters, as the civil trial panel in Santa Ana will now have to deal with a glut of limited jurisdiction cases in addition to their regular caseload of unlimited jurisdiction cases, wherein the amount in dispute exceeds $25,000.00.

The above changes will probably be more inconvenient to litigants than to attorneys, other than waiting for longer periods of time to get to trial.  Up until now, Orange County Superior Court has been very diligent in ensuring that most of the civil cases went to trial no later than a year from the date that the action was filed.  That is probably going to change, given the above developments.

While the legal system in this country has its share of critics, I firmly believe that the United States has the most fair and enlightened criminal and civil justice system in the world, and it is a shame that financial mismanagement by a series of governors and state legislators has brought us to this point in time.

Out of the all of the appeals that I have been involved in, the case that is identified in this link is probably the most interesting.  It involved a family dispute over the dinner table, when an irate uncle choked out my client's 14 year old son in response to a verbal exchange between the two.  The police were summoned, and they arrested the uncle for assault on the minor.  The uncle was prosecuted for a misdemeanor and was acquitted following a jury trial, in large part due to his retaining one of the better criminal defense attorneys in the county and due to the failure of the D.A.'s offices to subpoena the minor's grandparents, who witnessed the altercation but who reside up in Northern California. The D.A.'s offices apparently won't incur travel expenses for witnesses unless it is a felony matter.  Thereafter, the uncle sued my client and his girlfriend for malicious prosecution and false arrest, contending that they maliciously filed a false police report against him.  I filed a special motion to strike the civil lawsuit under C.C.P. sec. 425.16, contending that the actions of the clients in calling the police was a privileged act of petition of grievances under the code section, such that it could not constitute a basis for a civil lawsuit.  We further contended that even though the uncle was claiming that he choked the minor in self-defense, that there were sufficient objective facts to justify the call to the police by the clients.  The trial court disagreed and denied my motion, at which time I took it up on appeal and the appellate court agreed with me, which resulted in the dismissal of the malicious prosecution action and an award of attorney's fees and costs to my clients.  The opinion is in the link and makes for interesting reading even if you are not an attorney.  The bottom-line is that pursuing malicious prosecution cases are fraught with peril, and that you better have the case thoroughly analyzed as to your chances for success if you intend to pursue such an action.http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In%20CACO%2020120307058.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7

PET OWNERS FARING BETTER IN COURT ON DAMAGE CLAIMS

I had posted an earlier blog last year about how an appellate court upheld an award of emotional distress damages to a couple that owned a dog when their neighbor attacked it with a baseball bat, injuring it.  The CA Supreme Court refused to review the appellate court decision, so the dog owners' damages claim is now a done deal.  Again, this represents a significant shift in the law, where traditionally most courts have disallowed emotional distress claims related to pet injuries.

The current state of the law is therefore that emotional distress damages are allowable to the pet owner if their pet has been intentionally injured (ie., via the situation hereinabove), but not when their pet has been only negligently injured (ie., like an errant motorist hitting a stray in the roadway, or a veterinarian being sued for malpractice because of a procedure being performed with complications on a pet).

The recent appellate decisions also appear to allow the recovery of vet bills to treat an injured animal, even when the bills exceed the fair market value (FMV) of the pet.  Contrast this to the situation wherein if your motor vehicle has been damaged in an accident, that your damages are limited to the cost of repair or the FMV of the vehicle, whichever is less.

The arguments against allowing emotional distress damages for the loss or injury to a family pet are essentially twofold:  (1)  If emotional distress damages are to be allowed, then to how many family members is such relief to be granted; and (2)  parents who suffer the injury or death of a minor child due to the negligence of another are not normally allowed damages for emotional distress unless they contemporaneously witness the injury or death of the child, and in the case of the death of a child the parents are limited to the loss of future financial support the child would have arguably provided them had the child lived, plus the "loss of society" of the deceased child.

This is an evolving area of California law, but it definitely appears that the courts are starting to recognize the unique bond that family pets share with their human owners, and are translating it into a remedy when the pet is injured.

STATE BUDGET WOES FURTHER CRIPPLE ACCESS TO COURTHOUSES

While the State of California funds the various county courthouses, the counties are responsible for actually managing those funds and administering the courthouses in their respective counties.  The Los Angeles Superior Court just announced the closure of 10 courthouses, including Beverly Hills, West Los Angeles, Malibu, Avalon, Whittier, Pomona, and San Pedro.  This is supposed to be phased over the next 8 months.  This will mean a delay in civil trials, longer lines at the courthouses that still remain open, and longer distances for litigants and witnesses to travel to court as their cases are assigned to the remaining courthouses that are remaining open.  In practicing law over the past 34 years, I have always had the opinion that the Los Angeles County SuperiorCourts were never run as efficiently as those of other counties. The Orange County Superior Court system remains a shining example of how the doors to justice can still be kept open, even if some cutbacks are inevitable.  As bad as the situation in LASC is, the situation up north in San Francisco is going to be worse, with most of the civil courtrooms in the main courthouse being closed.  The only bright side to the budgetary cutbacks is that we are still apparently able to fund the salaries of the members of the state legislature, so that they can continue their good work in administering the public's money for the benefit of all concerned (yes, this is supposed to be sarcasm).

FEWER LAWSUITS FILED IN 2010 THAN IN 2009

According to a recent report from the National Center for State Courts, civil filings through-out the state declined approximately 2 per cent in 2010 as compared to 2009.  The same study also showed that California had fewer civil cases filed per capita versus other states.  Of the 29 states and the District of Columbia that were actually profiled in the study, California ranked 28th in the number of civil cases filed.  In 2010 California had 3,308 civil cases filed per 100,000 people, compared to top-ranked New Jersey with 11,625 civil cases filed per 100,000 people.  California is often unfairly profiled as being an overly-litigious state, usually by various "tort reform" groups whose avowed agenda is the curtailing of consumers' rights to access the civil justice system.  California continues to be plagued by a backlog in its courts system of both civil and criminal cases, thanks to the current budgetary crisis in Sacramento and in the various counties and cities that also support the court system.  When this will improve is anybody's guess.

MORE CHANGES TO WORKERS COMPENSATION LAW

Following the radical overhaul of the Workers Compensation (WC) laws by the Governator, Governor Jerry Brown has just signed into law further changes to the system that will take effect in 2013.  The changes will include the following:
1.  Coverage for psychiatric injury will be barred, absent the worker suffering a "catastrophic injury".  What is "catastrophic" is apparently undefined.
2.  The Workers Compensation Appeals Board (WCAB) will no longer adjudicate disputes over appropriate medical treatment that opposing physicians espouse on behalf of the applicant versus the employer.  Instead, disputes over appropriate treatment will be taken out of the WCAB and assigned to an anonymous state appointed doctor, who will have the final decision as to whether a disputed treatment or surgery is compensable or not.  This decision would be non-rebuttable and would put treatment decisions into the hands of an unknown doctor with unknown qualifications, and with no right of cross-examination or rebuttal testimony from another physician.
Critics of the change worry that if the insurance company pays for the anonymous doctor review, that this will create a conflict of interest for the anonymous doctor.
The ostensible purpose of the new law is to make the WC system less litigious and increase the size of permanent disability awards to injured employees.
There are sure to be due process challenges to the new law in civil court, but given the last set of changes to the WC system it is doubtful that court action or resultant appeals will prevent implementation of the changes.
The WC system tries to draw a fine-line between compensating injured workers and shielding employers from tort responsibility for worker's injuries.  While neither side will be happy with how this fine-line is drawn, given events to date the employer would seem to be coming out on top.

O.C. SUPERIOR COURT TO REQUIRE E-FILING ON ALL CIVIL CASES IN 2013

Orange County Superior Court is announcing a pilot program wherein all civil cases must be electronically filed, effective 2013.  This will include small claims actions also.  Up until now, the only cases required to be e-filed in O.C. were cases designated as "complex" or actions for breach of contract.  Personal injury cases must be e-filed as of 10/1/12.  This is a pilot program which if borne out as effective, is likely to be followed by every county in the state.  Most actions in Federal court, including bankruptcy actions, are already required to be e-filed.  E-filing is supposed to be more economical for the courts to handle, especially in light of the current budget crisis affecting the entire state.  This move is likely to result in some lay-offs in the clerk's office.  E-filing is actually more expensive for litigants, in that you have to pay a fee of approximately $10.00 to an e-filing company or attorney service in order to scan the document for filing.  E-filing may benefit some litigants facing a statute of limitations deadline, as the e-filing can be accomplished up to midnight of any given court day as opposed to filing being cut off when the clerk's office normally closes at 4:30 P.M.  O. C. Superior Court gets up to one million filings a year, of which about 40% of the civil filings are already being e-filed on an optional basis.

NEW LAW LIMITING DEPOSITIONS TO SEVEN HOURS

Governor Jerry Brown just signed a new law limiting the length of depositions in civil cases to a maximum of seven hours, a time restriction mirrored in Federal deposition rules.  Employment cases and cases deemed as "complex" are excluded from this time constraint.

The time constraints can be lengthened per the parties' agreement to do so, or by court order if necessary.

The bill was lobbied for by the Consumer Attorneys of California, the state's largest voluntary bar association consisting of attorneys who primarily represent plaintiffs in personal injury actions.

Proponents of the new law see it as a means of preventing litigants from being harassed through marathon multiple day deposition sessions.

Curiously, the law was opposed by the California Chamber of Commerce, an organization that regularly criticizes what it perceives as "lawsuit abuse".

In the experience of this practitioner, it is very rare for any deposition to last as long as seven hours, and it has not been my general experience that lawyers  abuse depositions just to create hardship for the witness.

DOG OWNERS WIN IN PRECEDENT-SETTING CASE

As opposed to the law in other states, it has long been the law in California that if a third party causes the  death or injury to a person's dog that the damages available to the dog owner are limited to the cost of the medical bills  (ie., the vet's bill) or the "fair market value" of the dog if it dies.  The only exception might be if the dog had a documented history of creating income for its owner, like if it was a show dog or a pedigree breeder.

Emotional distress damages to the owner due to the injury or death of the dog caused by the acts or omissions of a third party have otherwise been routinely prohibited under California law, keeping in accord with the general law of the state that the loss to personal property (and which a dog technically is) is limited to the cost of repair or the fair market value of the property, whichever is less.  In the case of a typical household pet, the fair market value on Fido is de minimus.

In a recent appellate decision that appears to create "new law", an appellate court upheld an award of emotional distress damages awarded by a jury to a dog owner when his obnoxious neighbor struck and injured his min pin with a baseball bat.

What appears to have persuaded the appellate court in doing so was the defendant's violation of a prior mutual restraining order agreed to with the plaintiff, the intentional nature of the attack on the dog, the fact that it is foreseeable that dog owners would suffer mental distress if a person were to injure or kill their dog in a wrongful act, and that other states have allowed emotional distress damages to the dog owner in similar circumstances.

You can access the case on-line for further further details of the underlying facts and the court's reasoning.  See Plotnik v. Meihaus, California appellate decision case number G045885, as decided on August 31, 2012.

MORE BUDGET CUTBACKS FOR ORANGE COUNTY SUPERIOR COURT

Like all agencies across the State of CA, the State's budget woes have also affected the courts, to varying degrees per county.  The most recent cutback that will be occurring in O.C. will be the cessation of hearing civil cases and small claims matters in the West Justice Center (WJC) in Westminster.  For example, in the fiscal year of 2011-2012 the WJC heard approximately 9,400 civil cases and more than 3,300 small claims cases.  These civil/small claims matters will now be transferred to the Central Justice Center in Santa Ana or the North Justice Center in Fullerton.  No court staff is apparently going to be let go, instead 12 employees from the WJC will be transferred to the various branch courts.  Obviously, given the volume of civil/small claims matters heard in WJC over the past fiscal year will mean that the transfer of such matters to the other branch courts will cause further delay in hearing those matters when the branch courts are already keeping busy with the normal flow of matters that are directly filed there.   In addition, the night court sessions for small claims in the Harbor Justice Center in Newport Beach will be canceled and redirected to the Central Justice Center. The Governor has scheduled a $544 million cut to the judiciary, and the O.C. Superior Court will have to dip into its cash reserves to deal with these cutbacks.  Orange County residents should still be thankful that Orange County Superior Court remains one of the most efficient and user friendly superior courts in the state in the face of such adversity, given its excellent court staff and sitting judges.  Nevertheless, expect matters to get worse before they get better.  It remains a shame that the justice system should be adversely affected by the incompetence of state government.

TOP TEN REASONS TO HIRE AN ATTORNEY

1.  Is Facebook friends with all of the Supreme Court Justices.

2.  Guarantees in writing a complete refund of all fees paid if your criminal defense case results in your receiving the death penalty.

3.  Cancelled award ceremony at the White House to receive the Presidential Medal of Freedom in order to personally handle your small claims appeal.

4.  Always receives enthusiastic applause from the judge and jury when he concludes cross-examination of a witness at trial due to his amazing technique of using a Jerry Mahoney ventriloquist dummy to interrogate the witness.

5.  Gives one free accordion lesson for every new client that he is referred.

6.  Only attorney in town to effectively combine a Power Point Presentation with clog dancing to bring the jury to tears in his closing argument.

7.  If you retain him, at no extra charge you receive the director's cut DVD of Season One of Matlock.

8.  Has offices in Antwerp, Zanzibar, and Brunei, but can still accommodate an appointment to see you in conference within one hour at his Barstow office.

9.  Not only has a successful law practice, but also runs a thriving Three Card Monte booth in front of the courthouse.

10.  Gave up a promising career as a rodeo clown to devote himself to the practice of law.