If you are a party in a case that will likely go to trial, this article is part two of a two-part series that presents some important action items that you can do to prepare for trial and to help your attorney prepare for trial. Here is a continuation of some important items you should be discussing with your attorney starting at least eight months prior to trial:
7. Review Deposition Transcripts: If you did not sit in on the depositions, I would recommend that you review the deposition testimony of key parties and key witnesses, key expert witnesses, and make some notes. This will help you prepare for trial, and you can discuss questions to ask your attorney. If you or your company paid for depositions – should you not use them in preparation and by having your attorney lodge them with the Court for trial? Reviewing the transcripts may also help you with preparing your exhibit and witness list.
8. Expert Witness Opinions: Judges, jurors, and arbitrators rely heavily on the opinions of expert witnesses to make rulings and decide cases. You have the right to retain an expert witness on many, many issues of liability and damages if you do so in a timely manner and disclose the expert to the opposing party. Opinions of expert witnesses can make or break a case. For example, if one side has a strong damages expert and the other side does not- the record is left with only one strong expert to render a damages opinion. I have won real estate fraud/forgery cases by having a credible handwriting expert who spoke well and candidly in front of the judge. Your side of the case should have its own experts retained on issues of liability, damages, and any other non- legal issue that the Court feels is crucial to making a decision.
Please review your expert witness selection list and your opponent’s list carefully with your attorney- your list of expert witnesses should be very broad, and this does not mean you have to call them at trial – but you always want to have your key expert witnesses and back up witnesses designated in a timely manner.
As part of your discovery, the deposition of opposing expert witnesses should be taken to understand and lock in their opinions. I think it is important to understand what the opponent’s expert witnesses are saying, and to know what is the substance and impact of their testimony on your case and whether they refute your expert opinion with sound analysis. A compelling expert opinion may persuade you to settle the case- perhaps you may pay more in settlement if you are a defendant, or you may accept less if you are the plaintiff. If the opponent’s expert is credible, and your expert cannot refute this opinion, or you don’t have an expert in the same field- this is important factor to consider in settling the case. Or you may to amend your expert witness list. Judges can be persuaded by reputable experts, and it is likely that the same well known expert has appeared before the same judge. An expert can influence a judge even if the expert’s analysis was not thorough and was rather conclusory. So you should be aware of the “expert witness factor,” develop a budget for experts, and work with your attorney to be prepared with your own experts and the analysis of opposing experts’ opinions.
9. Understand Your Judge’s View and Attitudes of the Case, Parties and Counsel: This is one of the most important subtle factors that parties need to understand. Judges are human, and are not fair and impartial all of the time. When a judge sits on the bench- his or her feet are sitting in wet cement- her feet and positioning can move either way in their view of your case. Eventually during the course of a case, that cement will become concrete- and the judge will develop a view of the case, the parties, and the attorneys. At the first case management hearing- the Court may ask the attorneys- what is this case about? What are the damages? Eventually, a judge’s footing gets cemented- the judge develops a viewpoint of the case- and the “cement gets harder.” Early on in a case, the judge may develop a viewpoint and opinion of the case, may develop a viewpoint of the defenses, may develop a bias, and you as a party have to understand these factors. Judges have limited time, limited resources, and limited patience. In Los Angeles, their calendars are busting at the seams.
The judge may also develop a dislike for a party, may develop a dislike or disdain for an attorney, or may develop a dislike for the theory of the case. The judge may have a bias toward a big money party- such as a bank, or may be biased in favor of an attractive female party, an attractive male party, or may be sympathetic because an attorney is pregnant.
A judge may be sympathetic toward a party who he or she can receive a political benefit from- judges are political creatures. Judges are human, are not perfect, and develop biases. With biases, come, at times, seemingly unfair rulings and decisions at trial and during the pre-trial stages. So, please be aware of this issue, and try to get to know your judge before trial. Also, please remember that very early in the case- you have the one time right to disqualify and “paper” your judge as a matter of right – and a new judge will be assigned automatically by the clerk of the court. As soon as your attorney knows the name of the judge- you and your attorney should decide whether the judge needs to be “papered.”
10. File a Motion for Summary Judgment/Summary Adjudication: Under certain procedural, factual, and legal circumstances, you may want to file a Motion for Summary Judgment or Motion for Summary Adjudication to try to win or get out of the case completely before trial. Discuss with your attorney the prospects for success, the favorable case law and the cost of filing this type of motion. For example, this motion may be successful if you are defending the case, and the plaintiff’s claim is clearly barred by the applicable statute of limitations or the plaintiff lacks standing. Your attorney should reserve a date for a Motion 100 days before the hearing on the motion, and greater than 30 days before the trial date. Motions for Summary Judgment are governed in part by California Code of Civil Procedure 437(c), and the California Rule of Court 3.1350- these rules need to be complied with very carefully. If there are disputed issues of fact in the case- then a motion for summary judgment or motion for summary adjudication will likely not carry the day. At the very least, you will get the substantive issues in front of the judge before trial- and learn what the judge feels is important. Some judges like these motions because if they grant the motion they can get rid of the case off of their dockets- some judges want to reduce their trial calendar, and granting an MSJ motion is one way to do it!
11. Revisit the Prospect of Global Settlement: If you are heading to the period which is 60 days or even 30 days before trial, it is highly recommended to reevaluate the prospects of settling the case. Has there been a change in the case in discovery that has harmed one side or the other? What did the plaintiff say in deposition testimony? What are the opinions of the experts? Has a motion for summary judgment been filed- and what were the judge’s rulings on the motion and the judge’s view of the claims/ defenses? If you mediated the case before, and made some progress – consider whether it would be worth it to have another mediation session, with the same or perhaps a different mediator. Another option is to have your attorney schedule a mandatory settlement conference with a judge in your court house. Some courthouses, like the downtown branch of the L.A. Superior Court, have dedicated judges that only handle settlement conferences. This is a free service, and you should take advantage of this free service – you may settle your case with the help of an experienced judge.
12. Don’t be afraid to seek a second opinion about your case: If you feel that you are unsure about your attorney’s trial preparation approach, or lack confidence in the way that your attorney has handled the file, or you believe that you are being underserved, you should get another opinion from independent counsel. This is wise decision. Going to trial or making a decision to settle a case is a major financial and legal decision, and you should make an educated choice after clearly weighing all options in an educated manner. As one colleague said to me, “ it is important to get another set of eyes on the issue.” At the most respected law firms and in house legal departments, the attorneys roundtable about issues- and try to obtain multiple perspectives, worst case scenarios, and strategy opinions about tough issues. Therefore, it is highly recommended to receive a second opinion on a case. If you were going to need major medical surgery- wouldn’t it be wise to get the opinion of a second physician on the risks and benefits of the procedure. Perhaps there is an approach or recommended course that the first surgeon did not consider. In the legal realm, getting a second opinion makes good business sense.
In conclusion, I hope this article helps you prepare the building blocks for the big case, and is a starting point for understanding how to prepare you and your company for a major trial if a case does not settle. Obviously, in major litigation there are many other factors to think about and the list is not exhaustive – for example, is there an insurance policy that can cover the liability and or defense of the claim, or can a cross-complaint for indemnity and contribution be filed to shift the risk of loss to third parties? I feel that parties should be fully informed about all of the issues in their case, and there should be no major surprises. I wish you well in your adventure at the courthouse and beyond, and I hope you can put on your best case, no matter what the outcome.
Nate Bernstein, Esq., is the Managing Counsel of LA Real Estate Law Group, and a member of the State Bar of California and his practice concentrates in the areas of complex real estate litigation, commercial litigation, employment law, and bankruptcy matters. He is a 22 year veteran Los Angeles real estate and business attorney and trial lawyer. Mr. Bernstein also has expertise on bankruptcy law, the federal bankruptcy court system, creditor’s rights and debtor’s bankruptcy options and created www.laquiettitleattorney.com, a leading educational resource on quiet title real estate litigation. For more information, call (818) 383-5759, or email [email protected].