Tag Archives: Best Practices

Timing Is Critical For Erecting Ethical Wall

Michele Trausch
November 2, 2015

A case from the Central District of California earlier this year highlights the critical issue of the timeliness of erecting a wall.

In Signature MD, Inc. v. MDVIP, Inc., the defendant moved to disqualify plaintiff’s counsel on the grounds it had previously represented the defendant from 2008 to 2012. The motion was granted because the current and former relationships were substantially similar and because the ethical wall the plaintiff’s counsel’s firm had erected was ineffective.

In fact, the wall was erected two days after the firm was retained by plaintiffs. There was no evidence preventative measures were in place before the wall went up to prevent disclosure of privileged information. Even declarations stating that there was no disclosure during that time would not have helped defeat the motion.

LESSON TO BE LEARNED: It is essential that no work be done before an ethical wall is in place. Courts will require strict compliance with all the elements of an effective ethical wall when ruling on a motion to disqualify. The timeliness of erection of the wall can make all the difference.

Give Experts All The Facts Before They Form An Opinion

Eric Junginger
September 9, 2015

It’s easy to have your expert opine exactly what you think you need to support or oppose a summary judgment motion when the expert is not given all of the pertinent facts. In Shiffer v. CBS Corporation, ___ Cal.App.4th ___ (2015 Cal.App. LEXIS 788) [9/8/15], the First District Court of Appeal made clear that “[a]n expert’s opinion is only as good as the facts on which it is built,” and if the expert has not been given the complete set of facts to form an opinion, the expert’s opinion lacks foundation and can be excluded from evidence.

In Shiffer, plaintiff conceded at deposition that the original asbestos-containing insulation on a Westinghouse turbine generator was already installed when he arrived at the job site, and it was never repaired, maintained, installed, or removed in his presence. Westinghouse moved for summary judgment based on no asbestos exposure. In opposition to Westinghouse’s MSJ, plaintiff submitted a contradictory declaration that insulation was being applied on the turbine when he arrived at the job site.

Relying solely on this declaration (and not reading any of plaintiff’s deposition testimony), plaintiff’s experts Charles Ay, Christopher Depasquale, and Barry Horn submitted declarations collectively opining that plaintiff was exposed to Westinghouse’s asbestos which was a substantial factor in causing his mesothelioma. However, the trial court rejected the plaintiff’s declaration because it failed to raise a triable issue of exposure, and the expert declarations because they did not consider plaintiff’s deposition testimony. Finding no admissible evidence of asbestos exposure, summary judgment was granted.

The Court of Appeal affirmed, observing that plaintiff’s experts relied on “a significantly incomplete universe of information, leaving them without an adequate basis” to form their opinions. Under Sargon Enterprises v. University of Southern California (2012) 55 Cal.4th 747, 770, expert opinions “may not be based on assumptions of fact without evidentiary support.” While it remains true that expert declarations in opposition to a summary judgment motion are to be liberally construed, expert opinions may nevertheless lack foundation and be excluded from the summary judgment record if the experts did not analyze the complete set of relevant facts.

An expert never wants to be surprised at a deposition or trial with facts – that if the expert had known about them – would have materially changed the expert’s opinion. The same goes for a pre-trial expert declaration. It is incumbent on counsel to provide their expert with the complete set of relevant facts. This is not just a good tip in managing your relationship with an expert, but it provides a sound foundation to reduce the risk that the expert’s opinion will be excluded from evidence.

The McNaughton Rules: The Three Hats You Wear in Mediation

Michael McNaughton
July 28, 2015

Today, most civil cases are mediated or are referred to some other form of alternative dispute resolution. To be an effective litigator, you need to understand the different strategies and skill sets needed for a successful mediation, as compared to a trial.

At trial, the litigator’s primary audience is the judge and jury. The only real goal at trial is to persuade the judge or jury to rule and find in your favor. By contrast, at mediation, the litigator has at least three audiences, each having the power to affect its outcome: (1) opposing party; (2) your client; and (3) the mediator. If the case involves multiple parties or insurance carriers, the number of audiences may be still greater.

During the course of a mediation, the effective litigator needs to communicate to each of these audiences, who come with different goals, perspectives, and motivations. The message you send to each will be different and may seemingly conflict (e.g., opposing party needs to know the strength of your position; your client needs to understand its weakness). The challenge and art of mediation is to deliver these multiple messages, simultaneously or in tandem, while at the same time being persuasive, truthful and credible.

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The McNaughton Rules: Oral Argument Should Not Be A Book On Tape

Michael McNaughton
May 4, 2015

I love talking to young attorneys about their cases. They are enthusiastic and often passionate about their client’s position. They know the law and have thought through its permutations as it relates to their facts. They believe in, and can readily articulate, the fairness of their client’s position. They answer my questions directly, pointedly, and persuasively. They are good oral advocates. They speak from the heart.

So why is it then, when it comes to oral argument, so many young attorneys turn into robots?

Certainly, part of it is nerves and inexperience. But a larger part, I believe, has to do with the approach that many attorneys — young and old — take when preparing for oral argument.

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The McNaughton Rules: Think Like a Judge; Write Like A Judge

Michael McNaughton
April 13, 2015

A cardinal rule for any form of persuasive writing is to “know your audience.” Too often, lawyers forget this.

When writing a legal brief, remember that your primary audience is the judge who will decide the matter. Your audience is not the opposing counsel or party (they will never agree with your position), nor is it your client (the brief is written for your client, not to him or her). Understand that when ruling on any matter, a judge is looking for an outcome that is grounded in law, fair, reasoned, and respectful to the parties. Your brief should adopt that perspective by persuading the judge that your position meets those criteria.

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