Civil Jury Verdicts – October Issue of Contra Costa Lawyer

Matthew Guichard

Indeed it has been some time since I penned the popular Civil Jury Verdicts column. Same old story: Very few attorneys are reporting their jury verdicts to me. I will say, trials are getting out in our Contra Costa Superior Courts, so I know there are cases to report. I also know local lawyers who are going to trial in other venues, including Federal Court. And, I am aware of significant settlements here in Contra Costa Superior Courts, as well as in other venues. I will mention all of those cases in our Civil Jury Verdicts column. You just have to report those cases to me. Sounds like a broken record doesn’t it?

Now let’s get down to some case reporting.

Moore vs. Wiebe, Case No. S-1500-CV-282514 LHB was tried in Kern County Superior Court, before the Honorable Lorna Brumfield. Plaintiff was represented by Solomon Green of RG Lawyers, LLP of Encino, California. Our own Bob Slattery along with Denise Billups-Stone of the McNamara firm represented the Defendant.

The Plaintiff, a 49-year-old medically-disabled welder, sued the Defendant, a neurosurgeon M.D., for complications he developed after a laminectomy, facetectomy and a tethered cord release. The surgery took place at Bakersfield Memorial Hospital.

Prior to the trial, the Plaintiff offered to settle for $250,000. Defendant offered to resolve the case by a CCP 998 offer of a dismissal in exchange for a waiver of costs. Doesn’t exactly sound like a meeting of the minds.

After a two week trial, the jury found for the Defendant doctor, in a unanimous verdict. The ouch part for Plaintiff in such med mal cases is there are generally significant expert costs and Plaintiff may very well be on the hook for those.

Thanks to Bob Slattery for reporting the case. He regularly reports cases to me, but looks like he has now transitioned into a mediator (See my next edition of Bar Soap), so I may not see any more Bob Slattery cases. Remember that “Mediation privilege? ” It means he cannot report the mediation cases to me.

An interesting note on medical malpractice cases: My research has reflected over the years medical malpractice cases have the lowest percentage of an outcome in favor of Plaintiffs of any type of personal injury matter.

In June of 2014 I wrote about Arnold vs. Padrah. Contra Costa Superior Court Case No. MSC12-02895. The Honorable Steve Austin presided. Clyde Long just reported an appellate decision in that same matter.

Recall at the time of my report there was a verdict, but the bifurcated trial on the issue of punitive damages had not yet taken place, and Judge Austin had not yet ruled on the Plaintiff’s quiet title claim of prescriptive easement. Clyde promised to let me know the final result. It took 29 months from start of the trial to the appellate decision.

The jury subsequently awarded $20,000 of punitive damages on top of the $68,000 damages award. Judge Austin granted a prescriptive easement in favor of Plaintiff, and awarded costs of $112,000. The total judgment was $200,000. The judgment was appealed by Defendant. The Court of Appeal recently affirmed the judgment in its entirety.

Many things are happening locally with our legal community. So many in fact that it is impossible to learn about them, much less comment on all of them. But I will give it a try.

MCLE Spectacular, Spectacular!
You actually don’t need my reminder, but the Contra Costa County Bar Association’s 22nd MCLE Spectacular is taking place Friday, November 18, 2016. It is an event not to be missed. Not only is it a good opportunity to pick up necessary and meaningful legal education credits, but it is also a great opportunity to see and catch up with old friends. See you there.

Mock Trials
I had the privilege of sitting as a judge at the Federal Building in San Francisco for the Empire Mock Trial program for national high school teams. I saw several colleagues from Contra Costa County also sitting in as jurors and judges. Many of you regularly assist with our local Contra Costa County High School Mock Trial Competition. Volunteer for the Empire program if you have the chance. I sat in on trials for teams from Cleveland, Miami, Riverside (California) and Washington State. Very impressive performances by all.

CourtCall Bandwagon
Back on my bandwagon concerning CourtCall appearances. Those appearances actually result in more court time than less. Please attorneys, listen to the Judge and offer information which is helpful to calendaring and case analysis. It is not a time to bring up discovery disputes, long-winded stories or long-winded excuses. It is painful to listen to attorneys wax eloquent on irrelevant issues and the entire audience in the courtroom an unwilling participant. Hey, I have an idea; pretend you are actually in Court! I did hear an excuse from a CourtCall participant which made me laugh. An attorney stated the reason a case had not been timely mediated as agreed was due to “Attorney lethargy.” Nice!
So, I have a thought about those pesky CMCs: Let’s go to the tentative ruling format. In most cases the parties file timely CMC statements and the Court issues a tentative CMC ruling setting further hearings, mediation completion dates and trials. No appearance is necessary, and we do not have to hear any more lawyers on CourtCall. That is of course unless the Court’s tentative ruling requires attendance.

People on the Move:
I note Manoogian Law has moved to 800 South Broadway, Suite 304, in Walnut Creek. And, not sure if I mentioned it before, but Robert M. Slattery (Bob) has officially wrapped up his litigation practice after 40 years and has transitioned into a full time “Neutral.” I’m happy for Bob, but a bit sad as he was a regular contributor to reports about “Local Civil Jury Verdicts.” Also, I’m not sure if it is just the local water, but we continue to hear of lawyers leaving firms (big and small firms that is) and going solo. An advantage is the only partner one has to deal with is that one in the mirror each morning and profits (if there are any) don’t have to be shared. Don’t forget to let us know if you have gone out on your own, or joined another firm. I love to write about people on the move, and speaking of people on the move, local retirees are making me jealous! I see many former government lawyers at bocce who report they love retirement and they love that retirement check coming in each month. Must be nice!

I was invited to join one of our local Rotary Clubs. No surprise, I accepted the invitation. Very enjoyable presentations and pleased to see so many of our local attorneys as members of the various local clubs.

Super Lawyers
So, I thought I was something special being a Super Lawyer, but then I started to see that every single lawyer in the state is a Super Lawyer or a Top Lawyer, or a NorCal Top Lawyer, or an East Bay Top Lawyer, or a Top Ten Lawyer, or a member of The National Association of Distinguished Counsel, or whatever. We are clearly an over-performing group! Congratulations to us all!

Fee Arbitration
I sit on the panel as a State Bar Fee Arbitrator. Just a reminder to ALL attorneys: Ensure you have a legal services agreement with your client(s). (Hint: This would probably be an excellent topic for our MCLE Spectacular next year.) It is required in most matters and I cannot tell you the number of cases in which there is NO agreement. The first question in any fee dispute matter is “Did you execute a legal services agreement…?” And a little tip to go on top of that, even if there is a written fee agreement, the fees cannot be unconscionable. That means at a minimum there must be some relationship between the fees charged and the work performed.

Sadly I am reporting regularly on those we lost recently. Jim Hazard and Ted Merrill recently left us. Jim a long time local lawyer, previously served on the Walnut Creek City Council. He was a top notch attorney, a member of ABOTA and settled many a civil case in his role as a mediator. I only knew Ted Merrill as a judge, but many remember him as the head partner at the Merrill law firm in Danville. That firm later became the Gagan et al firm. As a Deputy DA, both my first murder trial and my last murder trial were held in Judge Merrill’s department.

I was also very sad to hear of the untimely passing of John T. Nejedly. John was a local attorney, a member of the Contra Costa Community College Board, the son of former District Attorney and State Senator John A. Nejedly, the brother of Contra Costa County Supervisor Mary Nejedly Piepho and the brother of Central Costra Sanitary trustee James Nejedly. He was only 52 years old.

Circling back a bit on the concept of continuing legal education, I must say I am inundated daily with offers of programs on social media marketing for lawyers. For some years continuing education seemed to focus on evidence, ethics, mediations, etc. Seems now most of what I see involves marketing, web site crafting, blogging and how to be a super lawyer (just kidding on that last one). Nothing wrong with that, just a change in how we do business I guess.

Keep those cards and letters coming. I cannot write about your news if you don’t let me know.

Matthew Guichard and Erika Portillo are members of the One Hundred Club of Contra Costa County. In case you don’t know what this club is we’ve posted the below from their website:

“The One Hundred Club of Contra Costa County was formed in 1984 by a group of concerned citizens who care about the welfare of families of peace officers and firefighters who lost their lives as a result of and while in the line of duty in Contra Costa County. We are a 501 (C) (3) Exempt Organizatio…n.

Upon our formation, we became the sixty-second club formed in the United States.”

You can learn more about it here and ways that you can help:

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