Articles
June 21, 2007
Excess Judgement
BAD FAITH CASES CAN PUNISH STONEWALLING INSURERS Insurance companies are businesses, and like all businesses they seek to maximize their profit. For this reason, insurance companies are much more enthusiastic about accepting premiums (income) than paying legitimate claims (expenses). This is the dynamic which leads insurers to drag matters out, and to stonewall settlement demands… read more
June 21, 2007
The Deposition of the Adverse Expert Witness
By Darren O. Aitken 1. INTRODUCTION A party has the right to depose any expert designated by the opposing party. [CCP § 2034(i)]. In fact, any expert retained by the opposing side must be produced for deposition upon the service of proper notice. [CCP § 2034(h)]. The right to depose does not equate, however, with… read more
June 21, 2007
Hitting the High Points – The ‘Philosophy’ of Voir Dire
By Darren O’Leary Aitken, Esq. Noted trial lawyer, Tom Girardi, opines that in the modern era cases are not tried due to conflicting facts, but due to conflicting philosophies. In other words, most cases go to trial because the opposing lawyers and their clients see the same set of facts differently. Some of these conflicts… read more
June 21, 2007
“Is the Policy Open”
A. Define “Open Policy” When has an insurer, by virtue of its failure to meet its duties to its insured, exposed itself to paying the full value of a third party’s claim — including amounts in excess of policy limits? Typical Examples (black & white): Failure to pay settlement demand that is within the policy… read more
June 20, 2007
Setting the Record Straight: Debunking the Myths of Tort Reform
As plaintiffs’ attorneys, we are constantly placed in the position of having to defend not only our profession, but also our clients, who are generally looked upon with disbelief throughout the litigation process. Claims adjusters, defense counsel, and juries have been inundated with over 30 years of misinformation and propaganda from big business – misconceptions… read more
June 20, 2007
Winning Mediations: Successful Preparation for Successful Presentation
By: Darren Aitken Introduction For the litigator, mediation skills are vital. It is no overstatement to proclaim that Alternative Dispute Resolution (“ADR”) in general, and extra-judicial mediation in particular, are now a way of life. It is almost inevitable that at some point during litigation one side or the other will request that the matter… read more
June 20, 2007
Jury Voir Dire Topics (Checklist)
Where they live/who they live with/family make-up Occupation (and relevant occupations of spouse, children, parents, close friends and relatives) Familiarity with litigants, lawyers, the case, etc. . . . Prior experience as jurors Prior experience with lawyers (as clients, as witnesses, etc. . . . ) Prior litigation experience (and satisfaction with the exposure) If… read more
June 20, 2007
The Use of Evidence in Opening Statement and Closing Argument
Presented by: The Honorable C. Robert Jameson, Orange County Superior Court Richard A. Cohn, Aitken Aitken & Cohn I. Fundamentals/Legal Principles A. Opening Statement C.C.P. §607(1) — When the jury has been sworn unless the court, for special reasons, otherwise directs: (1) The plaintiff may state the issue and his case; (2) The defendant may then state… read more
June 20, 2007
Public Parks and the Natural Immunity: Duty to Warn (About Mountain Lions and Other Assorted Things)
By Wylie Aitken & Richard Cohn 1. LIABILITY OF GOVERNMENTAL ENTITIES AND PUBLIC EMPLOYEES IS THE RULE, WHILE IMMUNITY IS THE EXCEPTION. Interpretation of the Ducey v. Argo Sales Co., (1979) 25 Cal. 3d 707. “. . . The language of the applicable statutes refutes the State’s argument that it is under no duty to… read more
June 7, 2007
Business Torts: Fertile Land For The Skilled Plaintiff Lawyer (And More Particularly For The Skilled Evaluator)
By Wylie A. Aitken INTRODUCTION This article was inspired by some of the great mentors I have had in my career, including Herb Hafif and Vern Hunt. The theme of this article is that accomplished plaintiff jury trial lawyers, whether aspiring, upcoming, seasoned or veterans can apply their skills in areas otherwise reserved for “litigators”… read more