Evidence and Trial Issues

CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

Last updated on March 27, 2024 by Tim Kowal

CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the...Read More >>

Once jury trial is waived, recent Supreme Court decision makes the trial court’s refusal to set aside the waiver effectively unreviewable

Last updated on March 11, 2024 by Tim Kowal

The upshot of the recent Supreme Court decision in TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368) is simple: If you waive your right to a jury, and then the trial court denies your request to set aside the waiver, that is that. While you have a nominal right to seek writ relief, you...Read More >>

Best Practices for Expert Testimony

Last updated on August 29, 2023 by Tim Kowal

Your next trial could succeed or fail based on whether the expert’s opinion gets admitted or excluded. Based on their recent presentation to financial experts, we cover three key cases—Kelly, Sargon, and Sanchez—that govern expert opinions. We also cover some fundamentals and tips to protect expert work product. Some things experts should remind their attorneys:...Read More >>

Jury instructions are ceremonial, but they are not just ceremonial

Last updated on May 18, 2023 by Tim Kowal

After the theatrics of trial comes the sleep-inducing reading of the law. Do jury instructions matter? Studies show that jurors don’t even understand jury instructions, so what is the point of the judge taking a half day at the end of trial putting the jury to sleep by reciting all those CACI forms? Appellate attorney...Read More >>

Plan to Exclude an Expert Under Sargon? Don’t Forget Kelly

Last updated on January 11, 2023 by Tim Kowal

Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions. The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson,...Read More >>

New Cases on MSJ Evidence Rulings and Elder Abuse Attachment Orders

Last updated on December 13, 2022 by Tim Kowal

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new...Read More >>

Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds

Last updated on December 7, 2022 by Tim Kowal

CEB has published my article, “Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published CA Case Holds.” The article is about a surprising recent appellate opinion, WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046, that allowed a Nevada judgment debtor to domesticate a judgment in California—even though the...Read More >>

Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published Case Holds

Last updated on November 23, 2022 by Tim Kowal

There are some interesting new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. And then the domesticated judgment may be re-domesticated...Read More >>

“You Can’t Lose a Case by Making It Too Clear”: An Interview with Justice John Zebrowski

Last updated on November 15, 2022 by Tim Kowal

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes. This is but one...Read More >>

Medical expert’s opinion based on process of elimination was improperly excluded from trial, appellate court holds

Last updated on October 26, 2022 by Tim Kowal

Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An ophthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit. That...Read More >>

MSJ Evidence Rulings Are Discretionary, Court Holds in Split of Authority

Last updated on October 13, 2022 by Tim Kowal

UPDATE: The Court granted a publication request (filed by this commentator) on November 8, 2022. See here. A big part of winning at trial is getting your evidence in—and keeping your opponent’s evidence out. So on appeal, parties often argue that the judge made the wrong ruling when it kept your favorable evidence out—or let...Read More >>

Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

Last updated on October 11, 2022 by Tim Kowal

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY. The PDF article is here: Tim Kowal_Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict.pdf The case involved a trial error in which the...Read More >>

Order Excluding Party’s Sole Witness Held an Abuse of Discretion

Last updated on September 14, 2022 by Tim Kowal

You really ought to follow a court’s pre-trial order, but say you overlook something, like a witness list. The judge came down hard on the forgetful plaintiff in Harber v. Williams (D4d2 Sept. 12, 2022 No. E077036) ___ Cal.Rptr.3d ___, 2022 WL 4129702. Harber didn’t have any witnesses other than herself, but the judge prevented...Read More >>

Defense verdict reversed due to improper exclusion of evidence

Last updated on July 1, 2022 by Tim Kowal

After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow...Read More >>

Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

Last updated on June 24, 2022 by Tim Kowal

CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY. The case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial...Read More >>

Exclusion of Expert Opinion Held Structural Error on Appeal Requiring Automatic Reversal

Last updated on June 2, 2022 by Tim Kowal

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court...Read More >>

Draft Your RFAs With Costs of Proof and Settlement in Mind

Last updated on May 16, 2022 by Tim Kowal

CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here. The PDF article is here: Tim Kowal_Draft Your RFAs With Costs of Proof and Settlement in Mind.pdf Spahn held...Read More >>

Trial Court’s Refusal to Consider Declaration Supporting Domestic Violence Restraining Order Held Grounds for Reversal

Last updated on March 30, 2022 by Tim Kowal

Trial judges have wide latitude over the evidence that comes into the record at trial. The judge might sustain an objection to your smoking gun, or could allow damaging evidence despite your valid objections. These problems may be raised on appeal, but appellate courts give trial judges wide latitude on evidentiary rulings. But not in...Read More >>

Use of Audio & Video at Trial Affirmed on Appeal

Last updated on March 16, 2022 by Tim Kowal

Here is a memorable case that illustrates how to get audio and video footage into evidence, how to challenge admission of that evidence—and how not to challenge it. A crossbow-wielding defendant at trial cleverly attempted to prevent admission of audio and video footage proving he fired arrows into the plaintiff’s law office. Although unrepresented at...Read More >>

How the Medical “Standard of Care” Has Killed Two Presidents

Last updated on January 31, 2022 by Tim Kowal

Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard...Read More >>

Waiver of Jury Trial Held Voluntary, Despite Judge’s Statement Litigant Would Have to Wait 9 Mos. for a Jury

Last updated on January 26, 2022 by Tim Kowal

This one seems wrong to me. This is a published case in Conservatorship of Joanne R. (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging...Read More >>

Trial Court’s “Blanket” Rulings on Evidence May Be Treated with Suspicion

Last updated on January 12, 2022 by Tim Kowal

A trial court’s rulings on evidentiary objections are tough to reverse on appeal. But what about when the rulings are reflexive and not really supported by any analysis? In some cases, such “blanket” rulings may be found to be an abuse of discretion and reversed on appeal. The appellant argued improper “blanket” rulings were the...Read More >>

Formatting Matters: MSJ Evidence Objections Overruled That Did Not Conform to Rules of Court Format

Last updated on November 22, 2021 by Tim Kowal

If you work in court, you have seen the basic template for submitting written objections to evidence supporting a motion. It is the chart where is listed the objectionable matter, the objection, and a space for the judge to indicate whether the objection is "sustained/overruled." When you need one of these, you probably search your...Read More >>

Ruling Excluding Expert Testimony on MSJ Reversed on Appeal

Last updated on September 23, 2021 by Tim Kowal

There are two noteworthy things about the published opinion in Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609. First, it suggests how litigants might avoided the dreaded Sanchez rule that prevents experts from offering "case-specific hearsay" in their opinions. Second, it suggests some evidentiary rulings may be reviewed under the appellant-friendly de novo...Read More >>

Exclusion of Expert Data Affirmed on Appeal; But Exlusion of Expert Opinion Based on That Data Reversed

Last updated on August 30, 2021 by Tim Kowal

When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion is an...Read More >>

Do Curative Instructions Cure Anything?

Last updated on July 14, 2021 by Tim Kowal

Here is one reason why trials are so stressful: What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive? Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one...Read More >>

Trial Judge's Incorrect Ruling on Evidence Leads to Reversal on Appeal

Last updated on July 2, 2021 by Tim Kowal

"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling." It is true that a trial judge's rulings on evidence are rarely fertile grounds for reversal on appeal. That is because those...Read More >>

Justice Wiley Urges Bar to Consider Independent Experts

Last updated on February 24, 2021 by Tim Kowal

In a first-of-its-kind case, California's Court of Appeal has authorized a "Wi-Fi Sickeness" case to proceed. Although such cases have been rejected in ADA cases in federal courts, the California court in Brown v. Los Angeles Unified School District (D2d8 Feb. 18, 2021) No. B294240 noted the broad "physical disability" protections of the California Fair Employment and Housing Act...Read More >>

Objections to Evidence Improper, Summary Judgment Reversed

Last updated on January 19, 2021 by Tim Kowal

Before your next summary-judgment motion, be sure to read Sandoval v. County of San Diego (9th Cir. Jan. 13, 2021) No. 18-55289, holding that perfunctory evidentiary objections are disallowed, and summarizing other objections that simply don't apply on summary judgment. In Sandoval, a man on probation swallowed a lethal amount of meth rather than let deputy sheriffs find...Read More >>

In Summary Judgment Appeal, Split Decision on Unruled-Upon Objections, Conclusory Expert Opinions, and Design-Immunity Defense

Last updated on December 30, 2020 by Tim Kowal

Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out of the Fourth Appellate District, Division Three in Menges v. Dep't of Transp., G057643 (Cal. Ct. App. Dec. 24, 2020), that was not the case. After...Read More >>

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“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

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"A judge is a law student who grades his own papers." — H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia