California Litigation: Volume 1 - Volume 5
The Litigation Section publishes California Litigation three times per year, under the supervision of the California Litigation Editorial Board. Each issue contains informative articles on themes of interest to litigators.
Volume 5 , 1991-1992
Volume 5, Number 3, Spring 1992: STARTING A CASE
Editorial Opinion
By Michael D. Whelan
Mr. Whelan describes the state of the Litigation Section.
Litigation Alert
Litigation Alert highlights new developments.
A Liturgy for Litigators
By Nancy Sher Cohen and Jeffrey A. Richmond
Mr. Cohen and Mr. Richmond remind litigators of fundamental pre-litigation principles.
Duty of Zealous Advocacy v. Duty to the Judicial System: A Lawyer's Pre-filing Dilemma
By Eugene W. Bell
Mr. Bell examines the conflict between a lawyer's duties to his client and to the judicial system.
In Your Client's Best Interest: Starting with an Alternative
By the Honorable John K. Trotter, Ret.
Justice Trotter describes alternatives to litigation.
Making Sense of Pre-judgment Attachment
By Jeffrey R. Kirk
Mr. Kirk reviews the benefits and risks of pre-judgment attachment.
Where to File: Recent Developments in California Jursidiction and Venue
By Antonio Cortes
Mr. Cortes examines basic jurisdictional principles and recent decisions affecting those principles.
Seizing Control: The Best Defense Is a Good Plan
By R. William Bowen
Mr. Bowen encourages defense lawyers to develop plans and strategies early.
When Form Becomes Substance: Federal Removal Jurisdiction
By Charles A. Danahar
Mr. Danahar analyzes removal strategy and benefits.
"I may not be much of a lawyer but...": The Defensive Rule 11 Footnote
By Mark Herrmann
Mr. Herrmann explains frequently overlooked responses to Rule 11 motions.
Planning for Discovery
By Andre V. Tolpegin
Mr. Tolpegin discusses the development of a discovery plan.
Quayle's Call: An Overview of the Agenda for Civil Justice Reform
By Professor Margaret M. Russell
Professor Russell analyzes the "Agenda for Civil Justice Reform in America."
Two Brief Encounters: Basics of Appellate Brief Writing
By Peter H. F. Graber
Mr. Graber explores basic principles of appellate brief writing, utilizing two hypotheticals.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar returns with his Ten Commandments for Legal Writers.
Volume 5, Number 2, Winter 1992: THE SUPREME COURT OF CALIFORNIA
Editorial Opinion
By Michael D. Whelan
Mr. Whelan calls on the legal profession to address the Supreme Court's caseload.
Litigation Alert
Litigation Alert highlights new developments.
Taming the Odds: Increasing the Chances of Getting Relief from the Supreme Court
By Ken L. Richland
Mr. Richland offers suggestions for gaining the attention of the Supreme Court.
Oral Argument in the Supreme Court
By James J. Brosnahan
Mr. Brosnahan describes principles of effective oral advocacy before the Supreme Court.
My First Trip to the Supreme Court
By Joseph H. Fagundes
Mr. Fagundes describes the humbling experience of a lawyer's firs argument in the Supreme Court.
The Changing Supreme Court: Welcome to the Era of Judicial Limits
By Robert Egelko
Mr. Egelko offers observations on the trends of the Lucas court.
The Impact of the Lucas Court on Tort Law
By Joseph P. Masovich
Mr. Masovich analyzes important cases decided by the Lucas court in the area of tort law.
Foley to Rojo: The Supreme Court on Wrongful Termination
By Richard E. Levine
Mr. Levine discusses recent decisions of the Supreme Court in the area of employment law.
The Politicization of the Courts: The Crocodile in Our Bathtub
By Gerald F. Uelmen
Mr. Uelmen criticizes the national trend toward increasingly political state supreme court elections.
Summary Disposition: An Alternative to Supreme Court Depublication of Court of Appeals Opinions
By Jerome B. Falk, Jr.
Mr. Falk criticizes the Supreme Court's practice of decertifying opinions and offers an alternative.
Reducing the Caseload of the Supreme Court: A Debate
Excerpts from a debate between former California Supreme Court Justice Otto Kaus and California Appellate Justice Fred Woods on certain proposals designed to decrease the Court's caseload.
Judicial Opinion
By Robert M. Mallano
Judge Mallano defends fast track legislation.
Jury Trial Tips
By Joseph W. Cotchett and Frank M. Pitre
Messrs. Cotchett and Pitre discuss evidentiary concerns about "high tech" evidence and exhibits.
Volume 5, Number 1, Fall 1991: MEET THE PRESS
Editorial Opinion
By Michael D. Whelan
Mr. Whelan advocates preparation in dealing with the media.
Litigation Alert
Litigation Alert highlights new developments.
When the Press Calls: A Lawyer's View
By Robert A. Shapiro
Mr. Shapiro offers insights and suggestions on dealing with the media in high-profile cases.
When the Press Calls: A Reporter's View
By Claire Cooper
Ms. Cooper shares war stores about the way lawyers interact with reporters and discusses lessons to be learned.
What Remains of Freedom of Speech for Lawyers After Gentile?
By Lawrence B. Solum
Mr. Solum criticizes the U.S. Supreme Court's Gentile decision and extols the wisdom of California's non-regulation of lawyers' speech.
A Primer on Privacy Torts
By Kelli L. Sager
Ms. Sager explains the four "privacy" torts recognized under California Law.
Confidentiality Agreements and the First Amendment: The Right to Say Nothing
By Robert Aitken and Michael Overly
Messrs. Aitken and Overly discuss the eroding right to confidentiality in discovery and settlements.
How to Deal with the Legal Press
By Martin Kruming
Mr. Kruming discusses the mutual benefit of dealing effectively with the legal press.
Statements to the Press: Does the Absolute Privilege Absolutely Not Apply?
By Brian A. Barnhorst
Mr. Barnhorst discusses the Civil Code Section 47(b) privilege and whether it applies to statements to the press.
Jury Trial Tips
By Joseph W. Cotchett and Frank M. Pitre
Messrs. Cotchett and Pitre offer practice tips on direct examination of witnesses.
Volume 4, 1990-1991
Volume 4, Number 3, Spring/Summer 1991: WITNESSES
Editorial Opinion
By Cedric C. Chao
Mr. Chao looks for a silver lining in the recession.
Litigation Alert
Litigation Alert highlights new developments.
Making Music with Direct Examination
By David E. Monahan
Mr. Monahan explains the art of orchestrating successful direct examination.
Attacking and Supporting Witness Credibility
By John Markham
Mr. Markham examines the various facets of witness credibility.
Ethics in the Horseshed: Guidelines for Interviewing and Preparing Witnesses
By Gerald F. Uelmen
Mr. Uelmen gives a primer on ethical issues surrounding the witness interview.
Cross-Examination: Seven Steps to Success
By Allan Steyer
Mr. Steyer examines the components of witness cross-examination.
Ten Steps to Selecting Your Expert Witness
By Cynthia C. Cannady
Ms. Cannady explains how to select the right expert witness for your case.
Using Experts Effectively
By Tower C. Snor, Jr., Catherine K. O'Connell and Jonathan P. Marvin
Attorneys Snow, O'Connell and Marvin discuss how to use your expert effectively.
Practice, Malpractice and Expert Witnesses: Mal(practice) Makes Im(perfect)
By Jay W. Friedman, D.D.S.
Dr. Friedman discusses expert testimony from the witness' perspective.
Judicial Opinion
By Robert H. O'Brien
Judge O'Brien explains the benefits of nurturing your witnesses.
Jury Trial Tips
By Joseph W. Cotchett and Frank M. Pitre
Messrs. Cotchett and Pitre offer practice tips for examining witnesses in jury trials.
Volume 4, Number 2, Winter 1991: JUDGES
Editorial Opinion
By Cedric C. Chao
Mr. Chao extols the benefits of judicial evaluation surveys.
Litigation Alert
Litigation Alert highlights new developments.
Difficult Judges: How to Survive Them
By Arthur Gilbert
Justice Gilbert explains how to deal with a difficult judge.
Thirteen Deadly Sins: How Lawyers Irritate Judges
By Melinda Rose Smolin
Ms. Smolin describes things lawyers do that judges dislike.
Gender Bias in the Courts
By David M. Rothman and Bobbie L. Welling
Judge Rothman and Ms. Welling discuss this sensitive topic and what's being done about it.
Getting to Know Your Out-of-Control Judge
By James E. Towery
Mr. Towery explains how to learn about judges away from your home turf.
Waiving Jury for a Corporate Defendant: Not So Fast
By Robert T. Sullwood
Mr. Sullwood attacks the "conventional wisdom" about waiving jury on behalf of a corporate defendant.
Approaching the Bench: The Relationship Between Advocacy and Judicial Decisions
By Dirk T. Metzger
Mr. Metzger analyzes how to maximize the effectiveness of one's argument to the court.
The Private Judging Alternative
By Daniel H. Weinstein
Judge Weinstein defends the growing rent-a-judge practice.
Judicial Opinion
By William F. Rylaarsdam
Judge Rylaarsdam comments on common mistakes in jury trials.
Jury Trial Tips
By Joseph W. Cotchett and Frank M. Pitre
Messrs. Cotchett and Pitre offer practice tips on effective opening statements.
Volume 4, Number 1, Fall 1990: SETTLEMENTS
Editorial Opinion
By Cedric C. Chao
Mr. Chao emphasizes the need for trial advocacy skills.
Litigation Alert
Litigation Alert highlights new developments.
Playing "Godfather" in Settlement Negotiations: The Ethics of Using Threats
By Gerald F. Uelmen
Mr. Uelmen explains ethical constraints against the use of threats.
The Ballpark that Tech-Bilt: A Trial Judge's View of Good Faith Settlements from Behind Home Plate
By John A. Flaherty
Judge Flaherty offers practice tips regarding "good faith" motions.
Tax Considerations in Settlement Negotiations
By Phillip Jelsma
Mr. Jelsma explains tax strategies in settlement agreements.
Enforcing Settlement Agreements
By William B. Boone and Daniel H. Weinstein
Judges Boone and Weinstein discuss enforcing a settlement when one side attempts to back out.
Section 998 Offers to Compromise: Practice Hints and Strategies
By Don Ernst
Mr. Ernst explores the tactics of 998 offers.
The Effect of Partial Settlements on Trial
By Richard J. Heafy and J. Neil Gieleghem
Messrs. Heafy and Gieleghem discuss trial strategies in cases of partial settlements.
Prior Inconsistent Settlement Statements: Should They Be Admissible?
By Elizabeth Humphries and Pamela Helen Burgess
Ms. Humphries and Ms. Burgess propose a new standard for admissibility of prior inconsistent settlement statements.
Judicial Opinion
By Leon Savitch
Judge Savitch defends mandatory settlement conferences and offers practice tips.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar discusses the meaning of words.
Letters to the Editor
Readers respond to Mark Neubauer's editorial opinion, "Local Rule Mania"
Volume 3 , 1989-1990
Volume 3, Number 3, Spring 1990: JURIES
Editorial Opinion
By Mark A. Neubauer
Mr. Neubauer calls for uniformity in court rules.
Litigation Alert
Litigation Alert highlights new developments in the law.
The Simple Art of Advocacy
By Mark C. Mazzarella
Mr. Mazzarella explains the need to simplify today's complex cases.
Voir Dire: An Overview
By Thomas J. McDermott, Jr.
Mr. McDermott discusses the purposes of voir dire.
Anecdotal Evidence (of Sorts)
By Rodney Jones and Gerald F. Uelmen
Mssrs. Jones and Uelmen look at the lighter side of jury trials.
Lawyer in the Jury Box: Inside the Deliberation Room
By J. C. Weydert
Mr. Weydert describes his first-hand experience as a juror.
Jury Selection
By Allan Browne
Mr. Browne offers practice tips on the art of voir dire.
Seven Steps to Successful Jury Instructions
By Bruce G. Merritt
Mr. Merritt provides practical advice on jury instructions.
Judicial Opinion
By William A. Masterson
Judge Masterson believes judges "should do the bulk of voir dire."
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar argues that a lawyer's tools are his words.
Letters to the Editor
Judge W. F. Rylaarsdam responds to a recent editorial.
Volume 3, Number 2, Winter 1990: DAMAGES
Editorial Opinion
By Mark A. Neubauer
Mr. Neubauer questions the growing phenomenon of "rent-a-judges."
Litigation Alert
Litigation Alert highlights new developments in the law.
Remittiur: The Cost-Effective Alternative to a New Trial
By Leonard Goldstein
Judge Goldstein explains remittiurs and offers practice tips.
Whistleblowing Cases: Long, Expensive Litigation with Uncle Sam as a Sometimes Unwilling Law Partners
By Herbert Hafif and Phillip E. Benson
Mr. Hafif and Mr. Benson discuss practice under the False Claims Act.
Nipping "Punies" in the Bud: Summary Disposition Based on a "Clear and Convincing" Standard
By Jeffrey B. Norris and Arnold P. Peter
Mr. Norris and Mr. Peter advocate a heightened standard on summary disposition motions concerning punitive damages claims.
Providing Damages for Severely Injured Clients
By Richard Watters
Mr. Watters offers suggestions for maximizing damages for personal injury claimants.
Arguing Damages Persuasively for the Defense
By Kevin J. Dunne
Mr. Dunne advises defense lawyers how to argue damages effectively.
Judicial Opinion
By William A. Yale
Judge Yale urges litigators to unclog the judicial system of cases best suited for alternative resolution methods.
Letters
Readers express their views.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar extols the beauty of short sentences.
Volume 3, Number 1, Fall 1989: DISCOVERY
Editorial Opinion
By Mark A. Neubauer
In his Editorial Opinion, Mr. Neubauer criticizes the L.A. County Bar Association "Litigation Guidelines."
Litigation Alert
Litigation Alert highlights new developments in the law.
Dodging Bullets: How to Avoid Discovery Sanctions in Federal Court
By Claudia Wilken
Magistrate Wilken discusses sanctions in federal court – how to avoid them and how to get them.
A Rose by Any Other Name: Appellate Settlement Conferences
By Sheila Prell Sonenshine
Justice Sonenshine explains the successful settlement program initiated by Division 3 of the Fourth Appellate District.
California's Right to Privacy: Six Discovery Objections
By Robert Aitken
Mr. Aitken describes six applications of California's constitutional right to privacy.
Aerojet-General v. Superior Court: The Future of Coverage for Cleanup Costs
By Richard L. Antognini
Mr. Antognini explains the background of insurance coverage for toxic waste cleanup costs and the Aerojet-General decision.
Parol on Parole: A Plea to Tighten the Reins
By Edward G. Burg
Mr. Burg argues that California's liberal parol evidence rule should be redefined.
All in the Family: Specialized Rules for Family Law Cases
By Christopher M. Moore and A. Bailey Nager
Mr. Moore and Mr. Nager discuss some discovery rules unique to family law cases.
Judicial Opinion
By James A. Malkus
Judge Malkus analyzes several recent Supreme Court decisions and a common thread running through them.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar urges litigators to take the dullness out of their briefs by writing with style.
Volume 2, 1988-1989
Volume 2, Number 3, Spring 1989: INSURANCE
Editorial Opinion
By Richard P. Towne
In his Editorial Opinion, Mr. Towne proposes how to teach trial skills to new business lawyers.
Litigation Alert
Litigation Alert highlights new developments in the law.
Claims Made and Reported Liability Policies Under Attack
By William F. Campbell
Mr. Campbell explains how to protect an insured under a "claims made and reported" liability policy.
And Now for Something Completely Different
By Gary Sowards
Mr. Sowards examines the crisis in handling death penalty appeals in California.
Fast Track: Living Through the "Experiment"
By James King
Mr. King gives an interim review of the "fast track" rules.
The Practical Ramification of Moradi-Shalal
By Lawrence R. Booth
Mr. Booth deplores the damage done to consumers by the Moradi-Shalal decision.
The Limits of Independence: Ethical Considerations for Cumis Counsel
By George M. Wallace and Michael A. Di Lando
Mr. Wallace and Mr. Di Lando analyze the ethical obligations of Cumis counsel.
Damages and Settlements: What's Taxable and What's Not
By Sandy Kasten and Brad Seligman
Mr. Kasten and Mr. Seligman explain how to structure settlements to minimize tax liability.
Judicial Opinion
By Jeffrey T. Miller
Judge Miller gives practical guidance on conducting voir dire.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar shows how usage can elevate ordinary prose to an art form.
Volume 2, Number 2, Winter 1989: APPEALS
Editorial Opinion
by Robert Aitken
In his Editorial Opinion, Mr. Aitken eulogizes Edward Bennett Williams.
Litigation Alert
Litigation Alert highlights new developments in case law.
Telephone Appearances: No Longer "If You Please"
By Stuart Pollak
Judge Pollak argues that telephone appearances should be the norm for routine motions.
Appellate Misguidelines
By Edward L. Lascher
Mr. Lascher argues that hastening the appellate process may sacrifice just results.
Records Are Made to Be Exploited
By Richard Amerian
Mr. Amerian explains the subtleties of protecting the record for appeal.
Appellate Advocacy: Beware of Black-Letter Rules
By Alan Martin
Mr. Martin explains the exceptions that prove the rules of appellate advocacy.
When Words Are Not Enough
By Noelle C. Nelson
Dr. Nelson examines the art of non-verbal communication with a jury.
Royal Globe Revisited and Reversed
By William B. Boone
Mr. Boone explains the ramification of the recent Moradi-Shalal decision.
Successor Corporation Liability in Products Cases
By Anita Sololsky
Ms. Sololsky analyzes liability of successor corporations in products liability cases.
The Art of Persuasive Writing
By Daniel M. Sklar
Mr. Sklar deplores the decline of civility in legal briefs and argument.
Volume 2, Number 1, Fall 1988: EVOLUTION
This issue of California Litigationis dedicated to the memory of Robert E. Cartwright, July 9, 1895 - June 30, 1988
Editorial Opinion
By Robert Aitken
In his Editorial opinion, Mr. Aitken urges California lawyers to resist the temptation to reduce the size of juries.
Litigation Alert
Litigation Alert highlights new developments in case law.
Summary Judgement's Abused Step-Child – Motions for Summary Adjudication of Issues
By Kurt J. Lewin and Miriam A. Vogel
Judge Lewin and Judge Vogel argue that many trial lawyers improperly use motions for summary adjudication of issues as an expensive alternative to proper discovery.
Litigation in China -- A New Day
By Joseph W. Cotchett
Mr. Cotchett explains recent changes in Chinese litigation that may permit American lawyers to operate more effectively in trans-Pacific disputes.
"Good Faith" Settlements in Federal Court
By Mark W. Hansen
Mr. Hansen explains the difficulties caused by the absence of a federal counterpart to California Code of Civil Procedure Section 877.6.
The Rebirth of "Takings"
By Charles E. Greenberg
Mr. Greenberg explains the benefits of the Nollan and First Lutheran cases to landowners.
The Fatal Kiss of Mary Carter
By Michael J. McHale
Mr. McHale argues for the repeal of California Code of Civil Procedure Section 877.5.
Volume 1, 1987-1988
Volume 1, Number 3, Spring 1988: NEW DIRECTIONS
Editorial Opinion
By Mark Herrmann
In his Editorial Opinion, Mr. Herrmann argues that honest litigants should not be penalized by rules created to control the unscrupulous.
Litigation Alert
Litigation Alert highlights new developments in case law.
Recent Developments in Bank Liability Cases
By William A. Masterson and Madison Spach
Judge Masterson and Mr. Spach argue that the battleground in lender liability cases has shifted from the appellate to the trial courts.
The Punitive Remedy: Statutory and Judicial Reforms
by Guy O. Kornblum and Cristina J. Imre
Mr. Kornblum and Ms. Imre speculate that the explosion in punitive damage awards may have run its course.
Executions in California
By Gerald Chaleff
Mr. Chaleff analyzes the grim developments for those accused of capital crimes in California.
Wrongful Discharge: Which Way Will the Supreme Court Go?
by Martha W. Hammer and Jerome F. Birn, Jr.
Ms. Hammer and Mr. Birn assess the likely effect of the ten wrongful discharge cases pending before the California Supreme Court.
Negligent Bad Faith? Analysis of Negligent Infliction of Emotional Distress
By Philip D. Witte
Mr. Witte reformulates the doctrine of negligent infliction of emotional distress.
Judicial Opinion
By W. F. Rylaarsdam
Judge Rylaarsdam suggests that plaintiffs frequently misuse Evidence Code Section 776.
Volume 1, Number 2, Winter 1988: ATTACK AND COUNTERATTACK
Editorial Opinion
By Mark Herrmann
In his Editorial Opinion, Mr. Herrmann argues that our litigation process can properly sacrifice truth in pursuit of justice.
Litigation Alert
Litigation Alert highlights new developments in case law.
Tort Reform at the ABA: What It Means to California
By Kurt Melchior
Mr. Melchior analyzes the effect of tort reform resolutions passed by the ABA on practicing law in California.
An Expose of the Insurance Crisis
By Browne Greene
Mr. Greene argues that any crisis in the insurance industry was self-inflicted, and not the result of runaway juries.
Cost Raising Strategies in Litigation
By Daniel Wall
Mr. Wall argues that Section 1927 can be a useful tool for controlling litigation abuses when used in conjunction with Rule 11.
Malicious Prosecution: Attorneys as Defendants
By Ronald E. Mallen and Mark S. Kannett
Mr. Mallen and Mr. Kannett explain the potential liability of attorneys in malicious prosecution actions.
In Defense of the Litigation Privilege
By David B. Parker and Donald L. Lavi
Mr. Parker and Mr. Lavi suggest that recent appellate decisions restricting the litigation privilege erode necessary protections.
Judicial Opinion
By Robert W. Zakon
Commissioner Zakon argues that the routine dissolution restraining orders should be issued automatically, rather than after ex parte hearings.
Volume 1, Number 1, Fall 1987: WHEN THE LAWYER PAYS THE PIPER
Editorial Opinion: The Constitution and the Lawyers
by Robert Aitken
In his message from the Chair, Mr. Aitken deplores the fact that although lawyers played an important role in drafting the constitution, they continue to hold a low place in the public's esteem.
Litigation Alert
Litigation Alert highlights new developments in case law and statutes.
Remedies that Are Right: The Case for Attorney Sanctions
By The Honorable Eli Chernow
Judge Chernow argues that widespread support for judicial imposition of sanctions has at long last made sanctions a viable tool for state court trial judges.
Reducing Time to Trial: The Trial Court Delay Reduction Act of 1986
By John K. Van de Kamp and Richard Jacobs
Attorney General Van de Kamp and Special Assistant Attorney General Jacobs argue that the Trial Court Delay Reduction Act of 1986 may help change California's "legal culture" and shorten time to trial in state courts.
Appellate Sanctions: Caprice in Blunderland?
By Edward L. Lascher
Mr. Lascher argues that routine imposition of sanctions by appellate courts is not worth the candle, given the extra work it creates.
Discover Sanctions Under Rule 26(g)
By Lynn Pasahow
Mr. Pasahow argues that although Rule 26(g) authorizes expanded discovery sanctions, it should not chill vigorous discovery conducted in good faith.
Alternatives to Litigation . . . The Only Alternative
By Justice John H. Trotter
Justice Trotter argues that increased use of alternative dispute resolution is the only way to keep the civil justice system from grinding to a halt.
Private Settlement Conferences: Variations on an Old Theme
By H. Warren Knight
Judge Knight explains the potential advantages of alternative dispute resolution.