Production flow in litigation
I was putting together an exhibit binder for my co-counsel this morning, and it demonstrated once again how modern tools are making it much simpler for us to get our evidence pulled together as we work up our cases.
In the old days, I would have put yellow stickies on each of the pages I wanted copied, then either photocopied and three-hole punched them myself, or had my assistant do it. Either way, I had to be in the office.
This morning, I sat at my desk at home, located each of the exhibit pages I had premarked in Adobe Acrobat Professional (pdf), printed the pages out and zoom, there was my binder.
My co-counsel was happy, he told me he planned to send me more cases, which made me happy.
Sometimes, it is the simple things and in complicated legal cases, the simpler the better.
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The California Electronic Discovery Act
I’ll be talking to the Ventura County Bar Association about California’s Electronic Discovery Act on July 13 (more details to follow), a great privilege.
I thought it would make sense to post some basics on the Act here, because electronic discovery is such a huge issue, a short talk really won’t do the subject justice.
The Act itself was approved by Governor Schwarzenegger on June 29, 2009 as AB 6, amends the Code of Civil Procedure at sections 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300, 2031.310, and 2031.320 of, and adds Sections 1985.8 and 2031.285.
Here’s a copy of the Bill. AB 6 The Electronic Discovery Act.
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Random thoughts for Lawyers and the Lawyerly
If your expert has a favorite book, treatise or article that they are relying on in forming an opinion, ask to borrow it or at least get a name so you can buy your own copy. Know your case.
Preparation is never an afterthought. Your clients need to be comfortable with the process if they are going to testify at their best.
Read the basic jury instructions at the BEGINNING of your case. They will be your road map throughout.
Prosecuting a Defamation Case – (con’t) – privileges barring recovery for defamation and practice pitfalls.
D. Privileges Barring Recovery for Defamation
1. The Conditional Privilege
Civil Code section 47 is a haven for defamation defendants in California. Because powerful economic interests find themselves gravely affected by media publication, the statute has been recently amended several times.
On one side of the equation, Hollywood celebrities who find intimate details of their personal lives falsely portrayed in tabloid publications have lobbied the legislature to criminalize defamation. They contend that First Amendment protection and the capability of media enterprises to factor civil liability into the cost of doing business makes the civil remedy inadequate. On the other side of the equation, the media giants have successfully prevented a return to criminal defamation. They may have done the celebrities a favor, because if defamation were to be criminalized, one might expect defamation defendants to avoid discovery in civil actions by simply invoking Fifth Amendment protection against self-incrimination.
Discovery in defamation actions is difficult enough with the “newsman’s privilege,” a shield that designed to save journalists from having to reveal either news sources or unpublished materials during court proceedings. The privilege applies to all news reporters, be they Los Angeles Times staff writers or tabloid gossip columnists. See, Cal. Const. Art. 1, § 2; Evid. C. § 1070.
2. The Qualified Privilege
Civil Code section 47(c) provides a qualified privilege for communications, without malice, to a person interested in a certain topic by another interested person.
This doctrine provides sanctuary to a broad range of potential defamation defendants. Civil Code section 47(c) provides privilege to a communication
made, “. . . without malice, to a person interested therein by one who is also interested, [or] by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or who is requested by the person interested to give the information.”
The typical example of circumstances creating this privilege is the job reference scenario. When a prospective employer calls a previous employer for a job reference, if the previous employer’s statement to the prospective employer is made without malice, it is privileged.
Even so, the Supreme Court unanimously held in Brown that the qualified privilege of California Civil Code section 47(3) (now section 47(c)), does not immunize the news media from defamation liability to private individuals, even if the subject communications pertain to matters of public interest.
It is important for the plaintiff’s counsel to be aware that the vast majority of people looking for a lawyer to represent them in a defamation action present factual circumstances to which the “common interest” privilege will apply. For example, a businessperson who loses a license or an important segment of business because of an allegedly defamatory complaint to a governmental authority. When deciding whether or not to take on a case, consult Civil Code section 47 and its annotations.
3. The Judicial Privilege
In Shahvar v. Superior Court, 25 Cal.App.4th 653, 30 Cal.Rptr.2d 597 (1994), the court of appeal held that the transmission of a facsimile copy of a complaint was not privileged under Civil Code section 47(b). The attorney defendant in Shahvar had faxed a copy of a complaint to the news media the day before he filed it. The Court correctly held that such conduct fell outside of the qualified judicial privilege. But the decision caused an uproar in the media, and the legislature amended the section by adding subparagraph (d) which extends the privilege to a “. . . fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof . . . .”
This amendment provides a troubling expansion of the privilege, giving attorneys, politicians and the media free reign to immunize themselves by simply filing (even subsequent to the defamation) an “official proceeding” which restates the defamatory statement.
In effect, the privilege provides a legal means to end run the common law principle that “one who republishes a defamatory statement is deemed . . . to have adopted it and so may be held liable, together with the person who originated the statement, for resulting injury to the reputation of the defamation victim.” Khawar, 19 Cal.4th at 268, 79 Cal.Rptr.2d 178.
III. Practice Pitfalls
A. Civil Code section 48a Requires a Retraction Demand or Damages are Limited.
Where the libel is published in a newspaper or a slander broadcast by radio or television, Civil Code section 48a limits a defamation action to “no more than special damages unless a correction be demanded . . . within twenty days after knowledge of the publication or broadcast . . . .”
The retraction request should be personally served or sent by some means allowing the practitioner to verify service within the specified time limit. If the media outlet declines to publish a retraction three weeks of service, then the plaintiff is free to seek “general, special and exemplary damages” in a civil action.
B. Summary Judgment
Where First Amendment interests are implicated (arguably, this occurs in every defamation case), summary judgment is considered to be an “approved” procedure for disposition. Wasser v. San Diego Union, 191 Cal.App.3d 1455, 1461, 236 Cal.Rptr. 772 (1987). This description is to be distinguished from the typical characterization of summary judgment proceedings as a “drastic remedy.” Defendants invariably rely upon Wasser and related cases to represent that summary judgment is a “favored remedy,” but this is not a correct statement of the law.
Bill Daniels regularly publishes a variety of articles and videos to keep you abreast of legal developments and case law that affect our society.
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Prosecuting a Defamation Case (con’t)
I. The Reputational Tort
Defamation is an invasion of an individual’s interest in his/her reputation. 5 Witkin, Summary of Cal. Law (9th ed. 1988), Torts, § 471, p. 557. The defamation tort may be either libel or slander. Civil Code section 44.
Libel is a false and unprivileged writing or other fixed communication that exposes the subject “to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” 5 Witkin at § 45.
Slander is libel’s spoken counterpart and includes radio or television broadcasts. 5 Witkin at § 46. Unprivileged publications actionable as slander include those falsely (1) charging a person with a crime or with having been indicted, convicted or punished for crime; (2) imputing the presence of a contagious, loathsome disease; (3) injuring the reputation of a person in their trade or business; (4) imputing impotence or lack of chastity; or (5) causing actual damage.
The legal concepts of defamation, libel and slander have deep roots in both the English common law and California jurisprudence. Dean Prosser speculates that tort damages first became available in order to provide a legal substitute for dueling when that institution was outlawed. Prosser & Keeton on Torts (5th ed. 1984) Defamation, Ch. 19, § 111, p. 772. Many of the most sensational trials during the pre-revolutionary and early post-revolutionary period of our country’s history revolved around “seditious libel,” essentially the crime of badmouthing government. Such conduct was punishable by death. See The Trial of Colonel Nicholas Bayard, How.St.Tr.14:471, 502-505, 516 (1702). The defamation statutes set forth in our Civil Code stand essentially unchanged from 1872, when California’s statutory law was first codified.
Broadly considered, defamation actions ought to be considered in two categories: character defamation and trade defamation. This article will explore the current state of character defamation law in California, since offense to personal reputation is the type of matter most contingent fee consumer attorneys will encounter in their practice.
Trade defamation protects the reputation of businesses and products. While damages in such cases can run into the millions of dollars, the substantive law in this area is sufficiently unique that its bears examination on its own. See 5 Witkin, Summary of Cal. Law (9th ed. 1988), Torts, § 573, pp. 668-669. For a selection of cases in the trade libel area, see generally, Blatty v. New York Times Co., 42 Cal.3d 1033, 232 Cal.Rptr. 542 (1986); Guess, Inc. v. Superior Court, 176 Cal.App.3d 473, 477-479, 222 Cal.Rptr. 79 (1986); Polygram Records, Inc. v. Superior Court, 170 Cal.App.3d 543, 549, 216 Cal.Rptr. 252 (1985); Nichols v. Great American Insurance Cos., 169 Cal.App.3d 766, 773, 216 Cal.Rptr. 180 (1985), and Erlich v. Etner, 224 Cal.App.2d 69, 36 Cal.Rptr. 256 (1964).
II. Defamation of Character
A. Private versus Public Figure
The first consideration in evaluating a potential defamation action against a media defendant is determining whether the plaintiff is a “private” or “public” figure. The status is critical because of constitutionally protected speech rights and determines what liability standard must be met to confer liability.
Our Supreme Court’s recent pronouncement in this area is especially encouraging to defamation victims because it effectively reaffirms the common law notion that media defendants cannot transform an unwilling private citizen into a public figure merely by publishing a story. To understand why Khawar v. Globe International, Inc., 19 Cal.4th 254, 79 Cal.Rptr.2d 178 (1998), is helpful, it is important to understand why the private/public distinction matters.
In defamation actions, private figures generally need only show negligence to recover compensatory damages, including emotional distress, when they are defamed. Brown, 48 Cal.3d at 730, 257 Cal.Rptr. 708. This means that the butcher, baker or auto mechanic usually need only prove a breach of duty-causation-damages case at trial to recover.
This distinguishes private citizens from “public” figures. The latter must establish actual malice (also known as “New York Times malice,” for the seminal U.S. Supreme Court decision) by clear and convincing proof in order to prevail when they are defamed. Obviously, that burden is significantly greater than that required of private figures.
Still, even a private figure plaintiff’s burden is affected by the content of the offending speech. Where allegedly defamatory matter “involves a matter of public interest,” the New York Times malice standard applies. The same standard applies where a private figure seeks to recover presumed or punitive damages. Brown.
First Amendment speech rights are what create these barriers to the plaintiff’s case. To understand this, it is necessary to examine the federal constitutional law in this area.
B. The First Amendment Barrier
Strong as our First Amendment rights to freedom of speech and freedom of press stand, like any right they carry with them corresponding responsibility. Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 764, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985).
In a defamation action, the degree of responsibility that a speaker has towards others depends upon whether the target of the speech in question is a public figure or a private citizen. The reason is that the First Amendment, which is made applicable to the States by the Fourteenth Amendment Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), is especially protective of speech involving political or public affairs.
In the early 1960’s, the U.S. Supreme Court began sharply limiting a State’s authority to impose liability for speech in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Addressing whether a public official could recover for defamation, the high court pronounced,
The constitutional guarantees [of freedom of speech and the press] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 279-280, 84 S.Ct. at 725-726.
The decision was soon recognized as a sharp departure from the common law doctrine. “New York Times has been characterized as “overturning 200 years of libel law”; “almost a transformation” of defamation law; and “revolutionary.” Brown, 48 Cal.3d at 747, 257 Cal.Rptr. at 730.
In Curtis Publishing Co. v. Butts, 388 U.S. 130, 134, 87 S.Ct. 1975, 18 L.Ed. 1094 (1967), the court held that the actual malice standard applied to defamation actions brought by public figures as well as public officials. The Supreme Court also explained in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed. 789 (1974), that it had imposed the actual malice standard on public figures and public officials both because it presumed they, as a class, enjoy better access to the media than do private citizens, giving them a better opportunity to respond to defamatory statements. The court also assumed that public figures “have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Gertz, 418 U.S. at 345, 94 S.Ct. 2997.
Even so, the U.S. Supreme Court declined to extend the First Amendment protections applying to speech involving public figures or officials when the same defamatory falsehoods are connected with a private figure.
[The private individual] has not accepted public office or assumed an “influential role in ordering society. . . . He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures: they are more deserving of recovery.
Gertz, 418 U.S. at 345, 94 S.Ct. at 2997 (citations omitted).
Significantly, the U.S. Supreme Court left it to the States to police defamation where it applies to private figures, requiring only that the individual states not impose liability without fault. 418 U.S. at 347, 94 S.Ct. 2997.
California and the vast majority of other states have adopted a negligence standard for private figure plaintiffs. Brown, 48 Cal.3d at 740-742, 257 Cal.Rptr. at 727; Khawar, 19 Cal.4th at 274, 79 Cal.Rptr.2d at 190.
C. The Media Cannot Transform Private Figures into Public Figures By Mere Publication
The most recent pronouncement on defamation by the California Supreme Court articulates the rules by which trial courts can determine whether a plaintiff is a private figure, entitled to prosecute under a negligence standard, or a public figure burdened by the New York Times malice standard.
In Khawar, the plaintiff was a freelance photojournalist who was photographed standing hear Robert F. Kennedy minutes prior to the presidential candidate’s assassination in 1968. In 1988, a book entitled “The Senator Must Die: The Murder of Robert F. Kennedy” by author Robert Morrow theorized that the Iranian Shah’s secret police, SAVAK, working with the American Mafia, killed Kennedy, not convicted assassin Sirhan Sirhan.
In 1989, the Globe tabloid published a story about the Morrow book and included a photo of a group of individuals that had appeared in the book. The image was enlarged and the Globe added an arrow pointing to one of the individuals, identifying him as the assassin.
Plaintiff Khalid Iqbal Khawar was a naturalized United States citizen living quietly as a farmer in Bakersfield when the story appeared. At the time of the assassination he was a working photojournalist covering the Kennedy campaign. The image that the Globe falsely identified as Kennedy’s true assassin was his. As a result of the publication, Mr. Khawar became frightened for his own safety and his family’s safety. He received threatening telephone calls, he and his children were subjected to death threats and his home and son’s car were vandalized. Khawar, 19 Cal. 4th at 259-261, 79 Cal.Rptr.2d at 180-181.
The defendants argued that Khawar was an involuntary public figure, having injected himself in to a public controversy by intentionally allowing himself to be photographed with Robert Kennedy. The California Supreme Court rejected the notion, and focused on Khawar’s inability as a private citizen to counter the media’s false portrayal.
We find in the record no substantial evidence that Khawar acquired sufficient media access in relation to the controversy surrounding the Kennedy assassination or the Morrow book to effectively counter the falsehoods in the Globe article.
19 Cal.4th at 265, 79 Cal.Rptr.2d at 184.
The holding in Khawar on this point is critical, since it recognizes that media interests often have power far exceeding that of private individuals in shaping public opinion. Defamation law, the California Supreme Court recognized, provides a credible counterbalance to what would otherwise be a free license to exploit.
The holding is also important because it reaffirms the principle that a media defendant cannot transform a private citizen into a public figure merely by publishing a story that draws attention to the individual. The test is the status of the plaintiff at the time the defamation is first published, not afterwards.
Tomorrow I will discuss the privileges barring recovery for defamation and practice pitfalls.
Prosecuting a Defamation Case
“Good name in man and woman, dear my Lord, Is the immediate jewel of their souls: Who steals my purse steals trash; ’tis something, nothing; “’twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.” – Iago, Act I, Scene 3, Othello
Shakespeare’s Iago valued his reputation more than gold. Yet we live in a time where powerful media corporations coin gold by trashing the good names of private citizens. Defamation law provides the only defense.
Still, defamation as a practical tort remedy against falsehood in the media is only recently experiencing resurgence after many years of uncertaindecline. Actions defending reputation were seriously compromised in 1964, when the U.S. Supreme Court announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686 (1964), that the First Amendment limits a state’s authority to award damages for libel. In the wake of that constitutional determination, plaintiffs seeking to recover for defamation shouldered a heavy burden.
The challenges of successfully prosecuting a defamation action in the 1970s and 1980s became so onerous that even conservative courts took notice. The California Supreme Court estimated in the landmark decision Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 257 Cal.Rptr. 708 (1989), that only about 1% of all liable cases ever made it to trial, while nearly 70% of libel awards granted by juries were subsequently overturned on appeal. “In short, a defamation victim faces almost insurmountable obstacles to recovery within the constitutional limitations. As one plaintiffs’ lawyer put it, “It’s like going up a greased pole at a 90-degree angle.” Id., 48 Cal.3d at 750-751, 257 Cal.Rptr. 708.
Oddly, even as courts grew ever more hostile towards plaintiffs recovering for broken bones or torn flesh, the notion that private citizens should be granted redress when their good names are trampled by the media found favor with conservative courts.
“A reasonable degree of protection for a private individual’s reputation is essential to our system of ordered liberty.” Brown, 48 Cal.3d at 743, 257 Cal.Rptr. 708. “It is of great importance in a republic, not only to guard against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.” 48 Cal.3d at 743, 257 Cal.Rptr. at 708, citing The Federalist No. 51 (J. Madison) (Cooke ed. 1961) p. 351).
In 1998, in Khawar v. Globe International, Inc., 19 Cal.4th 254, 79 Cal.Rptr.2d 178 (1998), that pro-citizen trend translated into a boost for reputational law practitioners when the California Supreme Court affirmed a $1,175,000 jury award to a photojournalist who had been falsely identified in a tabloid article as Robert F. Kennedy’s assassin. Iago, it seems, can have his day in court.
Check back tomorrow for more on this subject.
Request for Production
Request for Production is a type of written discovery used by lawyers to gather documents as evidence in a lawsuit. Request for production are a common discovery tool. Request for production can come by themselves or they can be attached to a Notice of Deposition.
Preparing your documents for any case is important. You must be diligent and watch for deadlines. There are a few key tips to follow.
This video covers 7 important tips to gathering documents in a lawsuit.
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3 Insurance Rules After Disaster Hits Your Home
Avoiding Insurance Disaster.
It seems like whenever catastrophe strikes, insurance problems rear their ugly head. It might be your home isn’t sufficiently covered to pay for repairing the damage. Or, you might be the victim of unfair adjusting practices, such as a carrier that would rather fight than pay its fair share.
In a disaster such fire, flood or earthquake, you might not even know who your insurance company is, since your policies and other important documents may well be cold ash or soggy trash.
If you suffer a disaster and have to make a claim on your insurance, keep these three principles in mind:
1. Get a Copy of Your Policy and read It.
Insurance always begins with a written contract. So, the first thing that needs to be done when getting ready to make a claim is to get a copy of every policy that might possibly provide coverage for your damaged property and read them all from front to back.
If you don’t have the policy forms because they were lost, destroyed or are otherwise unavailable, you’ll have to get policy reconstructions from the insurance company. Requests can be made to your agent or directly to the insurance company’s policy services department. If you don’t remember who your insurance company is, you’ll need to do a little detective work. Start with your checking account. A review of your banking records may well lead you to every insurer that might provide coverage for the damaged property.
2. Check your coverages.
Your insurance policy provides coverage for certain types of loss, and excludes coverage for others. That’s why it’s important to get a copy of the contract right at the beginning.
One issue that frequently arises following a catastrophic loss is the damaged property was not adequately insured in the first place. Where an agent or broker provided you with professional advice on the appropriate coverage or bound coverage based upon their own professional expertise, there may be a claim for professional negligence where the property isn’t properly protected.
3. Watch out for Time Limits
Property insurance contracts generally have their own time limits, called “statute of limitations,” built in, and the period in which to file suit to enforce the contract is generally less than the period that applies to a plain vanilla written contract.
When in doubt, consult a legal professional about what time limits will apply to your claim. Be proactive. Once you have loss, there is a clock ticking somewhere that might limit your ability to recover policy benefits.
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Federal Sovereignty, Discovery and the Touhy Doctrine
I stumbled across an odd manifestation of federalism the other day when I tried to subpoena two Veterans Administrations employees in a product liability case.
It all started out normally enough. My client was injured at a V.A. facility and these were two percipient witnesses. I called them up and asked if I could depose them at a convenient time and place. They agreed to accept service by facsimile and I duly faxed them copies of their subpoenas.
Then came the letter from a senior attorney with the Department of Veterans Affairs:
Dear Mr. Daniels,
The United States Department of Veterans Affairs (VA) hereby requests that your office voluntarily withdraw its subpoena directed to its employee(s). The Superior Court does not have jurisdiction to compel the production of the records because Federal regulations prohibit their disclosure.
VA regulations restrict disclosure of official information by VA employees. 38 CFR, part 14 provides:
VA personnel shall not, in response to a request or demand for testimony or production of records in legal proceedings, comment or testify or produce records without the prior written approval of the responsible official designated in §14.807(b). VA personnel may only testify concerning or comment upon official VA information, subjects or activities, or produce records that were specified in writing, submitted to and properly approved by the responsible VA official.
38 CFR §14.806.
While the VA attorney relied primarily on two federal decisions to support his position, United States ex rel Touhy v. Ragen (1951) 340 U.S. 462 and Swett v. Schenk (9th Cir. 1986) 792 F.2d 1447, he also noted that the state courts have weighed in on the issue as well.
The California Court of Appeals, denying enforcement of a state court subpoena against a federal official, observed, “[A]n attempt to compel compliance with [a court subpoena] founders like the Titanic on the hard rock of sovereign immunity.” Civiletti v. Municipal Court (1981) 116 Cal.App.3d 105, 109, citing Touhy v. Ragen.
Okay, now I know you’re thinking, “Hey, the Titanic hit an iceberg so what’s that Civiletti court talking about? Besides, I’m entitled to my discovery and what’s the big deal here?”
Well, it turns out that even though our appellate courts may mix their metaphors from time to time, this is an area where the feds hold the playing cards, meaning you need to be aware of the Touhy doctrine when pursuing a claim involving federal turf.
Touhy involved a habeus corpus proceeding in District Court, in which an inmate in Illinois’ state penitentiary at Joliet was looking to get out. The inmate subpoenaed the F.B.I.’s file in his case, under the theory that the documents would prove he was fraudulently convicted. When the special agent in charge refused to comply, citing a Justice Department regulation similar to the V.A. reg in my case, the court held the special agent in contempt. The Seventh Circuit reversed and the U.S. Supreme Court affirmed the reversal.
The head of a federal agency has the authority, the Supremes held, to publish regulations restricting judicial access to documents or witnesses within the agency, under the doctrine of sovereign immunity.
That doctrine is not restricted to actions to which the United States itself is a party. It extends to officials of the federal government when they act as agents of the United States. The general rule is that a suit is against the sovereign if the effect of the court order sought would be to compel the federal government to act or would “interfere with the public administration.”
Civiletti, supra, 116 Cal.App.3d at 109. There are two exceptions to this general rule: (1) actions by officers beyond their statutory powers and (2) powers exercised within the scope that are themselves constitutionally void, either on their face or in the manner they are used. Dugan v. Rank (1963) 372 U.S. 609, 621-622.
In my case, I scratched my head a little, called around a lot and eventually was able to reach a compromise that allowed both sides to inspect the equipment I am alleging is defective. The V.A. attorney explained that, even though he understood that any recovery against the manufacturer would help the government with its workers compensation lien, the policy of the agency was to discourage access by lawyers in discovery, because someone, somewhere, had decided long ago that it is the best way to conserve government resources.
The justice system just has to make due on its own, I suppose.
So, the next time you find yourself with a case involving injury on a federal reservation or with federal employees as potential witnesses, make sure you’ve got the Touhy doctrine clearly in your sight. Forewarned, as they say, is forearmed.
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Five Fatal Bad Faith Mistakes and How to Avoid Them
Breach of the implied covenant of good faith and fair dealing in an insurance contract, or “bad faith” in the vernacular, is a tricky critter.
Ten years ago, bad faith was a staple for consumer lawyers; today, some will tell you it’s a dying area of the law. Don’t believe the doomsayers. While there is no question that bad faith litigation is not a practice area for the faint of heart, bad faith law remains a powerful tool to obtain justice for consumers.
With all that in mind, this is not an area for the unprepared. Here are five fatal mistakes you should take care to avoid:
1. Not looking for the “mean” in your case.
“The mark of a good bad faith case is meanness,” one of my mentors once told me. He believed that for a bad faith case to fly, there had to be conduct beyond something irritating or just maddening.
What you need to look for is conduct that is mean, insensitive or unfeeling. If you’re just uneasy or have some vague notion the world should be different, be sympathetic, but take a careful look at the law before diving in.
2. Forgetting to make sure there’s coverage.
No policy, no bad faith is the simple rule. Though there are areas where the simple rule won’t apply, that doesn’t mean you shouldn’t pay coverage close heed right from the get go.
The lesson here is, never take coverage for granted. Make sure you understand the carrier’s reasoning for doing what it did in every intimate detail. Study the correspondence, collect the key cases, gather whatever articles you can find on point. Also, bone up on the genuine dispute doctrine whenever coverage is in dispute. See, e.g., Chateau Chamberay Homeowners Ass’n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335.
3. Not gathering all the facts during your investigation.
There’s a temptation to seize on one or two key documents or bits of evidence that seem to show outrageous conduct and try to ride those through to the end, ignoring everything else. Resist that temptation.
The insurance regulations require carriers to keep records on everything material that takes place during a claim. Get copies of all that stuff and make sure the defense brings the originals to deposition so you can do your own inspection. If there’s an underwriting issue, get all those files as well.
Make sure your client gives you every scrap of paper connected with the claim, whether they think it is relevant or not. If the client is a poor record keeper, worry about that. It is amazing how a small, stray piece of documentation can rise up and bite you in a bad faith case.
A little paranoia is probably a good thing here. Remember, the law right now is probably as favorable for carriers as it’s been in several generations. Conduct yourself accordingly.
4. Not preparing for trial.
Don’t work up the case for settlement or to win on summary judgment. Prepare the darned thing for trial. Anticipate the worst and then if something better happens, celebrate. Only, do not ever under-prepare a bad faith case.
Remember what insurance companies do for a living. They sell promises on paper, pay some claims, deny the rest and defend their decision-making process to the death. You may have a great bad faith case in your file cabinet, but if you aren’t experienced in the area, beware, because the folks defending will be.
So, put in the time and gather the knowledge. Then put everything together as if you will go to trial.
5. Not facing reality.
There’s a difference between being a believer and being a fool. Believers understand their cases, warts and all, but know in their hearts they can steer the client through the system and get justice. Fools don’t understand what they have in their file cabinet, but bull ahead anyway.
As you litigate, make sure you constantly study, analyze and evaluate.
Go get’em.
When you choose to litigate against a carrier, go in smart. Consult an experienced practitioner where you have questions. Remember to avoid the five common mistakes and, good hunting!
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