Thursday, March 19, 2015

The Judge Taught me How to Tie an Expert's Hands

Yesterday, I finished a nine-week legal malpractice trial receiving an 8-figure verdict. The judge, before whom I tried the case taught me an important lesson concerning experts when the defense attorney sought to tie the hands of one of my experts.
Near the end of my case, I am arranging exhibits and demonstratives I intend to use with my valuation expert. He is the lynch pin of the damage verdict I obtained against an attorney who ruined a business that was the first to the American market with an organic tequila. My expert has prepared valuation figures for the business to establish the harms and losses the malpractice caused. My opponent is a wily old strategist who over almost 45 years has established not only a formidable reputation for winning impossible cases, but an almost perfect 155 and 3 trial record.
Defendant's Attack on My Expert
Before the court room attendant ushers the jury into the courtroom, my opponent rises and argues that my expert, who will deliver the big damage testimony for me, should not be allowed to testify because "There is no factual basis to support the opinion."
I respond, "Your honor, my opponent is mistaken. The expert has spoken with an officer of the company he has identified as a comparable business. He obtained the information confirming the assumptions he made and testified to during his deposition."
The attack on this most important witness begins when the defense attorney seeks to prevent his reference to the information from the company officer.
The judge asks, "On what basis do you think I should exclude the testimony of the expert?"

Defense counsel smiles and says, I took his deposition. He hadn’t talked to the officer when I took his deposition. At the conclusion of the deposition, I asked the wrap up question I ask at the end of every expert deposition to limit the expert to his opinions expressed during the deposition.
The Judge's Lesson
The judge leans back, smiles, and asks, "Can you please read me how you wrapped up the deposition, because I can’t rule in a vacuum."
With no small glee defense counsel picks up his highlighted transcript and reads,
"Question: In the conversation we have had today, we have covered all of your opinions that you presently intend to voice at trial, have we not?
Answer: Yes, as I said, other than maybe some rebuttal testimony to your expert if you have an expert.
Question: so if in fact, you have some new opinions with regards to either your original task in this case or in rebuttal, would you be sure and tell Mr. Young?
Answer: sure."
The Defense attorney smiles and adds, "You see, your honor, he is bound to his opinions."
The judge says, "Mr. Defense attorney, you are in the top 1 or 2 % of the attorneys who have ever tried a case in my department, but on this matter, you didn’t quite get there. You let the cat out of the bag as to a weakness the expert had and Mr. Young went out and propped up the testimony to make sure it’s admissible. Why you asked questions to tip Mr. Young off to a weakness is anyone’s guess, but you left the door open for him to do so. You see his expert has not formed a new opinion, he just got the information to make sure the opinion was admissible."
"But your honor, he can’t bring in that testimony."
"Oh I disagree Mr. Defense attorney. You haven’t tied anything down. You left the door wide open and Mr. Young has walked through the door. When I was trying cases and taking expert depositions, I would end with the following:
‘Mr. Witness, during this deposition, have you provided to me all of the opinions that you have formed and are prepared to deliver at trial?’ But then I went further. I asked, ‘If after this deposition, you perform any more calculations, and studies, or learn of any new facts or information from any source whatsoever concerning your opinion, or if the attorney employing you asks you to do any more work, will you inform your attorney so that she can tell me? We are going to adjourn this deposition now, but I am not terminating it. I will keep this deposition open so that if you do perform anymore calculations, or studies or learn of any new facts or information from any source, and you advise counsel, we can reconvene this deposition so that I can explore any new information, calculations, or opinions you may develop between now and the time you ascend the witness stand in trial.’"
My expert took the stand and delivered his testimony, including reference to the conversation with the company officer – and the judge was right to allow it.
Many times we ask overly broad "wrap up" questions thinking we have protected ourselves when in fact we have protected nothing. I will be using the judge’s tactic to make sure that experts I depose never get the wiggle room my expert got in this trial. And by the way, if feels great to tell you, my opponent's record is now 155 and 4!
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Monday, February 9, 2015

Charity on the Subway - Who Blessed Who?

Several weeks ago, I rode the morning subway to Los Angeles to attend a deposition. An older man, bent over, lean, unbathed, walked through the subway car, hat in hand, begging. Everyone ignored him and turned from him. I tossed a handful of change into his hat.
He said, “God bless you.”
Without thinking, I said, “I hope he does.”bigstock-Homeless-Man-Thinking-52716556
My stop came and I exited the subway. I did not know which direction to go to get to the proper exit. I was walking to the stairs and saw the man walking ahead of me. I asked him for directions.
He articulately described how I could get to where I was going, then he said, “But you got off one exit early — reboard the train and go to the next stop. It will be much easier.”
I said, “Thank you for blessing me.”
He smiled and said, “It’s not me who blesses. I just provide the opportunity for receiving a blessing."
Since that morning I have thought often about the lesson the man taught me. As I spend my overworked life concentrating on accumulating education, money, things, status, power, I miss the opportunities to add meaning to my life, not because I lack the desire, but because my focus confuses me as to what is really important.
No one paid attention to him. No one cared for him, and yet in a moment, he shared with me something truly important to me. I suspect that he would have given me directions regardless of whether I put money in his hat or not. The directions did not matter that much in the grand scheme of things, but imagine the personal loss I would have suffered had I not spoken with someone who everyone else ignored. He taught me that sometimes charity's greatest gift is to the giver, not the recipient. I had an experience with a truly noble spirit who many thought of as having little worth. I recognize him as having shared with me, the blessing of perspective.
How many opportunities do we miss to live because we are concentrating only on making a living. At the end of the day, it will be the experiences of meaning that have shaped us and made us what we will become that matter the most – it will be the blessings we receive for caring for others that will matter most to us, and those who fondly will remember us.

Friday, January 16, 2015

Would you have gone to jail for a client?


I believe we must do what is right, let the consequences follow. The challenge is that sometimes the consequences are negative. Twenty years ago I had an experience that had me saying, "I never felt more humiliated for doing the right thing." A friend of mine summarized it differently: "Young you big dog! You can't call yourself a trial lawyer until some asshole judge has put your butt in jail for contempt!"


I didn't know if my friend Rob Gill from Louisiana was trying to comfort me, teach me, or was lying to me. I had called to ask Rob, a criminal defense specialist I became friends with in 1996 when we both attended Gerry Spence's Trial Lawyer's College for advice on defending a contempt of court.


The fat jowled judge with the ruddy imprint of alcoholism in his cheeks, made no secret of his disdain for my Palestinian client. My client was born in Columbia, spoke Spanish, and had never been to the Middle East, but that made no difference to the judge. He set out to scuttle the case, and drive the case to the result he wanted. I weathered every storm during the trial, and wondered what the judge had up his sleeve when he invited counsel into chambers. "Well how do you think the jury will rule?" Opposing counsel felt he would win. I disagreed, feeling my witnesses were convincing on the issue of interference with a commercial lease my client guaranteed. "Are you kidding?" the judge asked, "I didn't believe a damn thing those towel heads said."

I was aghast, but that didn't stop my mouth from running. "What did you call my clients? Are you kidding? I can't believe you said that."

The judge did not appreciate my outrage. "Don't tell me you are one of those bleeding-heart, let's all get along types."

"No, I'm one of those a judge shouldn't be a bigot types."

"Get out of my chambers," the judge said without disguising his resentment.

I happily left. I returned to the courtroom where my client was waiting for the verdict. "I think we're in trouble. Even if we win, the judge will scuttle us."

"Why do you think that?" my client asked.

"You won't believe what the judge just said."

"What?" my client asked. I recounted the chambers conversation to my client. He felt the same way I did.


The next day the jury gave its verdict. The judge excused the jury and did something I'd never seen before nor since - he excused opposing counsel to sit in the hallway. When counsel left the courtroom, the judge said, "Mr. Young, the bailiff reports to me that you said things to your client about me yesterday that were very unflattering. I don't appreciate it and I am finding you in contempt."

"Well your honor, as long as we are sharing our feelings, I want you to know that last night I filed with the Supreme Court Chief Justice, a complaint about your racist comments yesterday." (Note: the judge had retired and was sitting by assignment from the Chief Justice.)

"Racist comments? What are you talking about?"

"Your comments yesterday in chambers when you referred to my client as a towel head."

"I never said that."

"You most certainly did and opposing counsel was there to hear it."

"Bailiff, get opposing counsel in here. I want to get to the bottom of this."

When my opponent had entered the court room, the judge said to me, "Okay Young, ask him."

I didn't think it was my place to do so, but never being to yield control if it's offered to me, I said, "Yesterday when we were in the judge's chambers, did the judge call my client a towel head?"

Counsel's eyes got big. I could tell he was weighing his options and how to escape unscathed. "No." A long pause followed. "That's not what he called him"

"There, see Young . . . "

"Just a minute your honor," I said. Then turning to counsel, "What did the judge call my client."

"Well I thought he was kidding."

I said, "There is no place in a courtroom for kidding about someone's race. Tell us what he said."

Then something happened I didn't expect, but it didn't surprise me. The judge leaned over the bench and said to the reporter, "Off the record." He then looked at me with a sneer and said, "Young, I order you to pay the clerk $1000 before you leave the courtroom."

"Your honor, I don't have my checkbook with me so I can't give the clerk a check. If I did have my checkbook with me I couldn’t give the clerk a check because I don't have $1000 in my checking account, and even if I did, I would go to jail before I paid the $1000."

The judge said, "Bailiff. Take him into custody. Mr. Young I hope I live long enough to testify at the state bar proceedings when you lose your license."


I was taken passed many of my friends, in handcuffs on the way to the basement holding cell. The deputies there took my shoelaces, my neck tie, my belt and everything in my pockets. They disassembled my wallet and inventoried it. The process took about an hour. I was then put in isolation because I was a civil prisoner and not a criminal prisoner.

I used my "free calls" and tried calling several friends including a court of appeal justice. None of them answered because it was the lunch hour on a Friday. I then called my office to talk to my partner. "Roland, I need you to file a writ of habeas corpus. I'm in jail and it's a wrong. Get me out." I was then taken to the cell, which had only solid walls and no bars or windows. I was in solitary and could not see or talk to anyone. Time passed very slowly. By my estimate, it was about 4:00 and the deputies were processing the criminal prisoners to return them to county jail for the weekend. I was worried that I would be forgotten, and would spend the night in my solitary cell, without light, for the whole weekend.

At about 4:30, a deputy came for me. "Your partner is at the clerk's office bailing you out. Let’s go through the inventory make sure you get everything back and we'll head to the courtroom." When I got to the courtroom, I was in for another surprise: The judge left early. The report I got was that he heard my partner was at the clerk's office and left because only he could order me released.

A friend of mine, a judge, came to the department, ordered me released and said he didn't care about the "release" rule. Here is where the saga began. I had to file post trial motions in the case. I didn't want the judge to hear them, so I filed a motion to disqualify the judge. A judge in another hears disqualification motions filed in our county. The Judge filed an opposition to that motion that stated, "I didn't call Mr. Young's client a 'towel head. I called him a camel jockey. I have a Lebanese nephew and we use that term to joke with him. I don't use it in a prejudice way. It’s for humor."


I filed my challenge to the contempt in the Court of Appeal and included the Judge's declaration as part of the record. When the oral argument in court of appeal, I stood to argue and began, "This appeal presents the issue of whether an attorney client conversation in a court, overheard by a bailiff, concerning a prejudiced remark by the judge can serve as a basis for a contempt."

The Chief Justice David Sills interrupted my argument. "Mr. Young. Do you think there grounds for the County to oppose your application here?"

I answered, "No your honor."

"Can we dispense with oral argument then?"

"I understand what you are saying your honor, and I would if I knew the other justices felt as you do about this matter."

His honor replied, "Oh you can assume we all feel the same."

"Your honor, I submit." It was my shortest argument ever in the Court of Appeal. Several weeks later, the opinion came out. It excoriated the judge for his comments and for the manner in which he conducted himself as it related to me and alleged contempt.


Opposing counsel did not have the courage to answer forthrightly about the judge’s misconduct. He owed it to the system and to my client to have been honest. As a result, I suffered, and the system suffered.

We must have courage to stand against things that are wrong, regardless of our concerns about personal inconvenience or detriment. I stood up to the judge. Opposing Counsel should have stood with me because the judge was just wrong.


There is a footnote to the story. After the contempt citation was entered against me, an organization concerned about discrimination approached me and asked what they could do about what had happened. I suggested that I could ghostwrite a letter to the Chief Justice of the Cal Supreme Court expressing the chagrin the organization felt that a judge would use such a reference during a case. I expressed in the letter how a court must be the one place of all places where any member of a minority or group could feel safe that fairness and justice would prevail. The president of the organization signed the letter and we sent it off. Several years later I learned that the letter that the  California Judicial Counsel was using the letter to train new judges in ethnic sensitivity in an effort to prevent a recurrence of what I experienced. I like to think my time in jail for contempt redounded to benefit of all when in court