California Litigation, Volume 6 - Volume 10
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 10, 1996-1997 |
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| Volume 9, 1995-1996 |
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| Volume 8, 1994-1995 |
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| Volume 7 , 1993-1994 |
- ADR (Vol. 7 No. 3, Spring 1994)
- Appeals (Vol. 7, No. 2, Winter 1994)
- Lawyers! (Vol. 7, No. 1, Fall 1993)
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| Volume 6, 1992-1993 |
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Volume 10, 1996-1997
Volume 10, Number 3, Spring 1997: BEYOND 2000
Editorial Opinion: Justice Clinton W. White: Trial Lawyer of the Year
By Teresa Tan
Litigation Alert
Editor's Foreword: Beyond 2000
By Russell Leibson
Litigators Should Nurture Business Courts
By Robert L. Haig
Are There Any Limits to Mandatory Arbitration?
By David S. Rand
Can Local Court Rules Rescue Civility?
By Andra Barmash Greene and Kyhm Penfil
Are the Public Courts Becoming Obsolete?
By Nicole A. Dillingham
Assumption of Risk Rediscovered: The "Defense" of Primary Assumption of Risk
By The Honorable W.F. Rylaarsdam
"Three Strikes": Three Perspectives
By Ronald H. Abernethy, David Wellenbrock and The Honorable George J. Abdallah, Jr.
Judicial Opinion: Keys to Enhancing the Trial Lawyer's Image in the Eyes of the Jury
By The Honorable Jeffrey T. Miller
Judicial Opinion: Judicial Case Management - A View from Both Sides of the Bench
By The Honorable W.F. Rylaarsdam
Volume 10, Number 2, Winter 1997: THE STATE OF THE ART
Editorial Opinion
By Teresa Tan
Editor's Foreword: The State of the Art
By Russell Leibson
A Troubled Profession: Problems and Prescriptions
By Mark W. Hansen
The Shattered Glass Ceiling Leads to the Plexiglass Door
By Kimberly R. Clement
Economics of Litigation Practice from a Corporate Perspective
By Michael D. Whelan
The State of the Profession: Is There a There There?
By Thomas J. McDermott, Jr.
Next Time You Need Help - Call a Tort Reformer
By Mark C. Mazzarella
School for Scoundrels
By Robert Aitken
The American Civil Litigation System: A Global Perspective
By Cedric C. Chao and Anita Taff-Rice
Is Speed An Improvement?
By Mark A. Neubauer
The Tort of Judicial Malpractice: A Modest Proposal for Reform
By Mark Herrmann
The Decline of Litigation: Of Judges and Lawyers
By Daniel M. Sklar
Judicial Opinion: Judicial Case Management - A View from Both Sides of the Bench
By The Honorable W. F. Rylaaradam
Volume 10, Number 1, Fall 1996: 10th ANNIVERSARY
Editorial Opinion: The Journal Turns Ten
By Teresa Tan
Ms. Tan looks back at the beginnings of the Litigation Section and the Journal.
Litigation Alert
By Patricia Nicely Kopf
Ms. Kopf summarizes recent court decisions.
Editor's Foreword: Our Tenth Anniversary Year
By Russell Leibson
Mr. Leibson introduces the "Best of" authors and outlines plans for this volume year.
Oral Argument in the Supreme Court
By James J. Brosnahan
First published in Volume 5, Number 2, Winter 1992.
When the Press Calls: A Lawyer's View
By Robert L. Shapiro
First published in Volume 5, Number 1, Fall 1991.
Evidentiary Objections As Tools of Persuasion
By Harold J. McElhinny
First published in Volume 6, Number 1, Fall 1992.
ADR - Its Time ... (Check One)
____ Has come ____ Gone ____ Never was and Praise the Lord
By Robert N. Sayler and Anna P. Engh
First published in Volume 9, Number 1, Fall 1995.
Opening Statements: A Plaintiff Attorney's Perspective
By Brian D. Monaghan
First published in Volume 6, Number 2, Winter 1993.
The Defense Opening Statement: Making It Effective by Making It Complete
By Kevin J. Dunne
First published in Volume 6, Number 2, Winter 1993.
Oral Argument
By Edward L. Lasher
First published in Volume 7, Number 2, Winter 1994.
Taming the Odds: Increasing the Chances of Getting Relief from the Supreme Court
By Kent L. Richland
First published in Volume 5, Number 2, Winter 1992.
Judicial Opinion: Cross Examination
By The Honorable W. F. Rylaaradam
First published in Volume 8, Number 3, Spring 1995.
Volume 9, 1995-1996
Volume 9, Number 3, Spring/Summer 1996: TACTICS & TORTS
Being a Lawyer Isn't So Bad
By Kimberly R. Clement
In her Editorial Opinion, Ms. Clement finds trial lawyering inspiring, noble - and fun.
Litigation Alert
By Patricia Nicely Kopf
Ms. Kopf summarizes recent court decisions.
Class Actions: United We Stand
By Eugene S. Wilson
Mr. Wilson provides a touch of class.
Court-Ordered Mini-Trial with Advisory Verdict: A Participant's Perspective
By Terry Bridges
Mr. Bridges describes his positive reaction to a multi-party action mini-trial.
Negotiating in a Mediation: Think Strategy
By Peter Robinson
Mr. Robinson balances competitive and cooperative approaches.
The Sins of Others: Civil Liability for Crimes on the Premises
By Bruce Janger
Mr. Janger examines the civil defendant's exposure for the unkindness of strangers.
Municipality Claims for Failed Investments: Litigation Scenario
By W. Reece Bader
Mr. Bader tracks the evolution of municipal securities litigation.
Ax Me No Questions: Cross Examination in the Lizzie Borden Case
By John D. Hourihan
Mr. Hourihan praises the tactics of the lead defense counsel.
Avoiding Dumb and Dumber: Preparing Witnesses
By Theresa Zagnoli
Ms. Zagnoli believes practice makes perfect.
The Municipal Court: A Judge Teaches Tactics
By The Honorable George J. Abdallah, Jr.
Judge Abdallah provides notes on trial tactics and procedures.
Judicial Opinion
By The Honorable W. F. Rylaarsdam
Judge Rylaaradam draws a distinction between tactics and unprofessional conduct.
Editor's Postscript
By Robert Aitken
Mr. Aitken leaves us in Salome - where she danced.
Volume 9, Number 2, Spring/Summer 1996: CHALLENGE & CHANGE
Don't Vote Against Yourself: Retain the Unified State Bar
By Kimberly R. Clement
In her Editorial Opinion, Ms. Clement urges lawyers to support self-government.
Litigation Alert
Litigation Alert summarizes recent court decisions.
The Evolving Politics of Jury Trials
By Weyman I. Lundquist
Mr. Lundquist traces the history and changing political process of juries.
Lessons of the `Trial of the Century'
By Laurie L. Levenson
Ms. Levenson tells us what really matters.
The Case for Cameras in the Courtroom
By Kelli L. Sager, Karen N. Frederiksen, and Barbara Wartelle Wall
Ms. Sager, Ms. Fredericksen and Ms. Wall argue in favor of televised trials.
Trial Publicity: Congratulations, You Are Now A Second Class Citizen
By Jerome Sapiro, Jr.
Mr. Sapiro predicts the chilling consequences of Rule of Professional Conduct 5-120.
Women in the Law: The Morrison and Foerster Experience
Introduction by Kathleen Fisher
Ms. Fisher and her colleagues relate their experiences as women lawyers in a large firm.
The Gorilla Adversary
By Lorna G. Schofield
Ms. Schofield takes on the challenge of taming an aggressive opponent.
Judicial Opinion
By The Honorable W. F. Rylaaradam
Judge Rylaaradam stresses the importance of making a record on appeal.
Editor's Postscript
By Robert Aitken
Mr. Aitken discusses bad times/good causes - how to find satisfaction as a trial lawyer.
Volume 9, Number 1, Fall 1995: LAW & DISORDER
On the Ropes: Women Trial Lawyers Sound the Bell
By Kimberly R. Clement
In her Editorial Opinion, Ms. Clement promotes changes in trail practice to balance work and personal life.
Litigation Alert
Litigation Alert headlines recent court decisions.
`To Abstain from All Offensive Personality': Uncivil Lawyers
By Robert S. Gerber
Mr. Berber reports from the front in the war among lawyers.
"Three Strikes": A Survey of the Early Innings
By Charles Kelly Kilgore
Mr. Kilgore describes the whole new ballgame in criminal sentencing.
Your First Deposition: Everything You Need to Know
By Jan C. Gabrielson
Mr. Gabrielson provides a step-by-step guide.
Sanctions Under California Law
By The Honorable W. F. Rylaaradam
Judge Rylaaradam explains the new CCP Section 128.7.
Union Bank v. Superior Court - California's Celotex
By Evelio M. Grillo
Mr. Grillo stresses the importance of this appellate decision.
ADR - Its Time ... (Check One)
____ Has come ____ Gone ____ Never was and Praise the Lord
By Robert N. Sayler and Anna P. Engh
Mr. Sayler and Ms. Engh urge lawyers to check into ADR.
"His Honor": A Short Story
By Lawrence J. Fox
Mr. Fox is the author of the first work of fiction published in California Litigation.
Judicial Opinion
By The Honorable Arthur Gilbert
Judge Gilbert offers a wry look at the terror of the harmless error.
Editor's Postscript
By Robert Aitken
Mr. Aitken discusses juries in a time of trials and troubles.
Volume 8 , 1994-1995
Volume 8, Number 3, Spring 1995: TESTIMONY
Editorial Opinion
By Mark W. Hansen
Mr. Hansen questions legal reform.
Non-Scientific Expert Testimony: Who Is Watching the Gate in California?
By Rodney L. Eshelman and G. David Godwin
Messrs. Eshelman and Godwin compare admissibility of expert testimony in Federal and California courts.
Direct Doesn't Mean Dull: The Philadelphia Story, Part One
By Lawrence J. Fox
Mr. Fox enlivens the art of direct examination.
The Strike Zone, the Trial Judge and Other Moving Targets: The Philadelphia Story, Part Two
By William T. Hangley
Mr. Hangley finds the trial judge's strike zone.
Witness Testimony: How to Protect Lawyer-Client and Work Product Privilege
By Matthew P. Guasco
Mr. Guasco adopts a methodical approach.
"You're Fired": Cross-Examination of a Wrongful Termination Plaintiff
By James A. Goodman and Robert A. Dye
Messrs. Goodman and Dye overcome the affinity of the jury for the plaintiff.
Reconstructing an Accident: Expert Testimony Building Blocks
By Garrison Kost and James B. Clapp
Messrs. Kost and Clapp discuss the issues and principles involved in accident reconstruction.
Sexual Harassment: Cross-Examining the Claimant
By Velma K. Lim and Orlie L. Curtis
Ms. Lim and Mr. Curtis explain the burdens of proof.
Judicial Opinion
By The Honorable W. F. Rylaarsdam
Judge Rylaarsdam promotes efficiency in cross-examination.
Editor's Postscript
By Robert Aitken
Mr. Aitken extols the cross-examination of Laura Manion in "Anatomy of a Murder"
Volume 8, Number 2, Winter 1995: MILLENIUM
Editorial Opinion
By Mark W. Hansen
Mr. Hansen laments the decline of lawyers' professional conduct.
Litigation Alert
Litigation Alert spotlights new developments.
The Future of California Courts: Justice in the Balance 2020
By Richard Chernick
Mr. Chernick describes the work of a Commission considering future planning.
Unifying California Trial Courts: The Connecticut Connection
By The Honorable William F. McDonald
Judge McDonald proposes fine tuning the California court structure.
A "Bus" Ticket to the High-Tech Courtroom: Text, Lies and Videotapes
By Thomas J. McDermott, Jr.
Mr. McDermott guides us along the information highway.
The Right to Privacy and the New Technology
By Jeffrey W. Loebl
Mr. Loebl identifies the dangers of disclosure in the use of the new technology.
Technology Is a Tool, Not a Case Strategy in the Courtroom
By Michael E. Cobo
Mr. Cobo emphasizes substance over style.
Reassessing the Choice of Forum in California: Is the Grass Really Greener...?
By Robert S. Gerber, Carrie Battilega and Vincent J. Axelson
Messrs. Gerber and Axelson and Ms. Battilega chart changes affecting your decision to file in state or federal court.
Judicial Opinion
By The Honorable W. F. Rylaarsdam
Judge Rylaarsdam cautions us concerning the new technology.
Editor's Postscript
By Robert Aitken
Mr. Aitken points out the potential effect on trial lawyers of "The Common Sense Legal Reforms Act."
Volume 8, Number 1, Fall 1994: CLIENTS
Editorial Opinion
By Mark W. Hansen
Mr. Hansen advocates the "click beetle" approach to law.
Litigation Alert
Litigation Alert highlights new developments.
Keeping Your Clients Satisfied: Winning Is Not Enough
By Thomas C. Corless
Mr. Corless offers suggestions for building winning relationships.
Leading the Way Through Discovery: Don't Answer That!
By Sean M. Burke
Mr. Burke provides advice on easing clients' fears.
Talking to Your Client: A Psychological Perspective
By Jane Rubin
Ms. Rubin points out the importance of dealing with the psychological dynamics of the client's personality.
The Lawyer As Client
By Bob Wallach
Mr. Wallach relates his version of two trials as client and client/lawyer when indicted in the Wedtech scandal.
Outside Counsel: An Inside Perspective
By Kenneth R. Jensen and Timothy L. Roberts
Messrs. Jensen and Roberts emphasize the need for inside/outside counsel communication.
Controlling the Cost of Litigation: Avoid and Minimize
By Roderick M. Thompson and Andrew J. Dhuey
Messrs. Thompson and Dhuey explore techniques of avoiding litigation and containing costs.
Developing a Client Base: Surviving in the '90s
By Angela M. Bradstreet
Ms. Bradstreet lists marketing tips and stresses the importance of rainmaking.
Guest Columnist
By Thomas J. McDermott, Jr.
Mr. McDermott cautions his colleagues to duck the bricks.
Editor's Postscript
By Robert Aitken
Mr. Aitken comes to the defense of his beleaguered brethren.
Volume 7, 1993-1994
Volume 7, Number 3, Fall Spring 1994: ADR
Editorial Opinion
By Thomas J. McDermott, Jr.
Mr. McDermott challenges trial lawyers to take charge of their future.
Litigation Alert
Litigation Alert highlights new developments.
The Demise of the Civil Jury Trial
By Robert Aitken
Mr. Aitken bemoans the decline and fall of the civil jury trial system.
Mediation — A Lawyer's Perspective
By Shaun K. Boss
Mr. Boss provides a lawyer's perspective on the mediation process.
Getting the Most from Mediation
By John B. Bates, Jr.
Mr. Bates offers a mediator's perspective on effective mediation practice.
Compelling Arbitration: A Matter of Judgment
By Christine A. Page
Ms. Page analyzes the factors that must be addressed in deciding whether to compel arbitration.
Discovery in Arbitration: A Return to Reason
By Ross Hart
Mr. Hart explores discovery rights in arbitration.
Arbitration Preparation and Effective Arbitration Advocacy
By Peter Brown Dolan and Michael L. Wolfram
Messrs. Dolan and Wolfram offer suggestions for effective arbitration preparation and advocacy.
Punitive Damages in Arbitration
By Paul Dubow
Mr. Dubow describes circumstances in which punitive damages may be awarded in arbitration.
ADR and the Federal District Court: The ADR Multi-Option Pilot Program in the Northern District of California.
By Stephanie E. Smith
Ms. Smith examines the ADR pilot program in the Northern District of California which can serve as a model of other courts.
Judicial Opinion
By the Honorable W. F. Rylaarsdam
Judge Rylaarsdam encourages time-honored informal settlement discussions between counsel.
Volume 7, Number 2, Winter 1994: APPEALS
Editorial Opinion
By Thomas J. McDermott, Jr.
Mr. McDermott analyzes the challenges for lawyers in conveying information to jurors in this multi-media age.
Litigation Alert
Litigation Alert highlights new developments.
Amicus Curiae and Briefing Limitations
By Ephraim Margolin
Mr. Margolin thoughtfully addresses briefing limitations and the use of amicus curiae briefs.
Supreme Court Review: Improving Your Chances for Success
By Ellis J. Horvitz and David M. Axelrad
Messrs. Horvitz and Axelrad offer suggestions for increasing the changes of a successful petition for review to the California Supreme Court.
Oral Argument
By Edward L. Lascher
In a timeless article written before his death, Mr. Lascher shares his thoughts concerning effective oral advocacy.
So Your Brilliant Summary Judgment Motion Was Denied: Should You Take a Writ?
By Robert Sullwold
Mr. Sullwold analyzes the use of writ petitions to attack a trial court's ruling on a summary judgment motion.
Effective Brief Writing: A Court of Appeal Staff Attorney's Perspective
By Franz E. Miller
Mr. Miller offers helpful hints for effective brief writing.
Demystifying Appellate Review Standards
By Gerald Z. Marer
Mr. Marer examines the various standards of appellate review.
Standards of Review on Appeal from Post-Trial Motions: Deference Given Where Deference Due
By Dennis A. Fischer and Allen S. Yockelson
Messrs. Fischer and Yockelson describe applicable standards of review on appeal from orders on post-trial motions.
Timeline and Deadlines for Civil Appeals in California
By Suzanne E. Graber
Ms. Graber offers a helpful outline of various critical dates in the California Courts of Appeal and Supreme Court.
Judicial Opinion
By the Honorable William Cahill
Judge Cahill analyzes recent developments in summary judgment practice.
Volume 7, Number 1, Fall 1993: LAWYERS!
Editorial Opinion
By Thomas J. McDermott, Jr.
Mr. McDermott predicts significant changes in the way cases are tried.
Litigation Alert
Litigation Alert highlights new developments.
Making Yourself a Target: The Ethics of Lawyer Marketing
By Gerald F. Uelmen
Prof. Uelmen describes the pitfalls involved in advertising and offers words of advice.
Professionalism — One Year later
By Brian C. Walsh
Mr. Walsh describes the impact of a Code of Professionalism in Santa Clara County one year after its implementation.
Judicial Perspective on Sanctions in State Court
By Hon. Robert H. O'Brien
Judge O'Brien provides a judge's perspective on sanctions, advocating a cost-redistribution approach.
Rule 11 Is Dead — Long Live Rule 11
By Mark Herrmann
Mr. Herrmann discusses proposed amendments to Rule 11.
Selected Issues in Legal Malpractice
By Ronald E. Mallen
Mr. Mallen describes recent developments in malpractice litigation.
Improving the Public Image of Lawyers: Is It a Fantasy?
By Bill Whelan
Mr. Whelan analyzes the public perception of lawyers and wonders if it can be changed.
Practical Difficulties in Attempting to Disqualify Opposing Counsel: Is It Worth the Risk?
By Norman J. Scott
Mr. Scott discusses the current state of the law governing motions to disqualify.
So Why the Lawyer Jokes? Lawyers as Witnesses on Their Own Behalf
By John Sheller
Mr. Sheller describes difficulties in representing lawyers as defendants.
45 Hearsay Exceptions
By Robert Aitken
Mr. Aitken supplements his previous article on the hearsay rule (Vol. 6, No. 1, Fall '92) by offering a handy list of the exceptions to the hearsay rule.
Volume 6, 1992-1993
Volume 6, Number 3, Spring 1993: THE CIVIL/CRIMINAL INDEX
Editorial Opinion
By Mark Mazzarella
Extols the virtues of Alternative Dispute Resolution.
Litigation Alert
Litigation Alert highlights new developments.
Effective Use of the Fifth Amendment in Civil Proceedings: Choosing the Best Path at the Fork in the Road
By Page Swan and Frank Kros
Messrs. Swan and Kros examine the options available in exercising Fifth Amendment protection in civil proceedings.
The Crime-Fraud Exception to the Attorney-Client Privilege and Work Product Doctrine
By Daven Lowhurst and James Kramer
Messrs. Lowhurst and Kramer describe this troubling and difficult exception.
Multiple Representation in Corporate Criminal Cases
By Samuel R. Miller and Rodolfo Ruiz
Messrs. Miller and Ruiz examine this increasingly prevalent dilemma for corporate counsel.
Compliance Programs and Corporate Sentencing Guidelines: The Incentive for Self-Policing
By Jeffrey M. Kaplan and Linda S. Dakin
Mr. Kaplan and Ms. Dakin explain creative uses of corporate sentencing guidelines and related programs.
Building a Shield in the Post-Kaye, Scholer Era
By Carol S. Langford and Mark S. Coon
Ms. Langford and Mr. Coon explore the lawyer's ethical dilemma in light of the Kay, Scholer Case.
Federal and State Forfeiture Statutes: The Prosecutors' New Darling
By Brian A. Sun and Gordon A. Greenberg
Messrs. Sun and Greenberg discuss federal and state forfeiture statutes.
Victim's Rights
By Lisa Herrick
Ms. Herrick describes the range of remedies available for victims of crimes.
The CEO Takes the Stand
By Noel C. Nelson, Ph.D.
Dr. Nelson offers tips for preparing corporate executives to testify.
Persuasive Writing
By Daniel A. Sklar
Mr. Sklar advocates the use of the "question presented" techniques in legal brief writing.
Volume 6, Number 2, Winter 1993: TRIAL
Editorial Opinion
By Mark C. Mazzarella
Mr. Mazzarella describes the activities of the Litigation Section.
Trying Cases Economically
By Kirk G. Forrest
Mr. Forrest explores means to reduce litigation costs.
One Hundred Days to Trial: Inside Tips from the Pros
By Patricia Nicely Kopf
Ms. Kopf gleans useful preparation tips from experienced trial lawyers.
The Timing of peremptory Challenges in Consolidated for Coordinated Actions
By Joseph P. Mascovich
Mr. Mascovich examines the timing of section 170.6 challenges in complex litigation.
Educating Your Jury: The Key to Success
By Dr. Ellen L. Leggett
Dr. Leggett, a psychologist, offers tips on properly educating a jury.
The Do's and Don'ts of Trial By Jury: Habits and Techniques to Use and Avoid
By Elizabeth Humphreys and Jason G. Weiss
Ms. Humphreys and Mr. Weiss offer observations of effective trial conduct.
Opening Statements: A Plaintiff Attorney's Perspective
By Brian D. Monaghan
Mr. Monaghan discusses the goals of a plaintiff's opening statement.
The Defense Opening Statement: Making It Effective by Making It Complete
By Kevin J. Dunne
Mr. Dunne describes the purpose of a defendant's opening statement.
The Persuasive Power of Final Arguments — The Views of Joseph A. Ball
By Robert Aitken
Mr. Aitken conducts a lively and informative interview with Joe Ball.
Persuasive Writing
By Daniel A. Sklar
Mr. Sklar continues this writing column by answering questions from practitioners.
Volume 6, Number 1, Fall 1992: EVIDENCE
Editorial Opinion
By Mark C. Mazzarella
Mr. Mazzarella calls for a commitment to civility and professionalism.
Litigation Alert
Litigation Alert highlights new developments.
Hearsay — May You Say What You Hear?
By Robert Aitken
Mr. Aitken analyzes the hearsay rule and various exceptions.
Evidentiary Objections as Tools of Persuasion
By Harold J. McElhinny
Mr. McElhinny recommends developing a strategy for making objections.
A Time for Professionalism: The Santa Clara Solution
By Brian C. Walsh
Mr. Walsh describes efforts in Santa Clara County to maintain traditional professional values.
Turning Your Clients' Position Into the Judge's First Impression
By Hon. William A. Masterson and Lawrence D. Jackson
Judge Masterson and Mr. Jackson explore the effective use of motions in limine.
Ex Parte Interviews with Present and Former Employees of a Corporate Adversary: The Ethical Parameters
By Dana Sabraw
Mr. Sabraw analyzes a common dilemma in actions involving corporations.
Using Spoliation of Evidence in Products Liability Cases
By Rodney Eshelman and John Kavanaugh
Messrs. Eshelman and Kavanaugh examine available remedies in spoliation cases.
The Evidence Code and the Federal Rules of Evidence: Their Differences May Catch You Unaware
By John Steele
Mr. Steele explores some critical differences between California and federal evidence rules.
Judicial Opinion
By W.F. Rylaarsdam
Judge Rylaarsdam offers suggestions for preparing exhibits for trial.