19 Jan: Mediation Message #169

THANKSGIVING REFLECTIONS Thanksgiving is an appropriate time to count our blessings, particularly this year – one that none of us will ever forget. It has been overwhelming, and even catastrophic, in so many ways for so many people. I only speak for myself and my loved ones, but I hope I can also speak for many of you who receive these thoughts. When the pandemic started, I was not truly aware of its scope or…

19 Jan: Mediation Message #168

IS THE “OPEN THE DOOR” PRINCIPLE A FALLACY? A fallacy is a false, deceptive, misleading or mistaken idea or argument. Fallacies exist in everyday affairs (for example, it’s a fallacy that a fact must be true if stated by an authoritative person). They also exist in the law. (See Redevelopment Agency of Sacramento v. Malaki (1963) 216 Cal.App.2d 480 [The “plain meaning” rule that statutory interpretation is not permissible where language is clear and unambiguous,…

19 Jan: Mediation Message #167

THE NEW NORMAL It’s been almost seven months since the coronavirus struck. At first, without solid information about its scope, many of us naively thought it would be over in a couple of months. It is now accepted that a vaccine, not yet developed, is needed to control the virus. After that are the uncertainties concerning the availability of the vaccine and its effectiveness. Besides affecting our health, the virus has also impacted our personal…

19 Jan: Mediation Message #166

THE HEARSAY RULE AND A RE-INTRODUCTION TO EVIDENCE I      Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442 provides an introductory law school review of what is hearsay and what is not. The Supreme Court’s additional discussion of authentication requirements is a further benefit of its analysis of two fundamental rules of evidence.      Hart sued Keenan Properties (Keenan) and other entities for the mesothelioma he claims he contracted after installing pipes…

19 Jan: Mediation Message #165

UNFAIR COMPETITION LAW AND THE RIGHT TO A JURY TRIAL IN CIVIL MATTERS Nationwide Biweekly Administration, Inc. v. Superior Court (2020) 9 Cal.5th 279 holds that causes of action under California’s unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and California’s false advertising law (FAL) (Bus. & Prof. Code, § 17500 et seq.) shall be tried by the court rather than a jury because they are equitable in nature. More importantly,…

04 Jun: Mediation Message #164

ZOOM VIDEO CONFERENCING, PART II   Since many (but not all of you) have been involved in one or more Zoom mediations the last several weeks, I thought some helpful hints regarding that process would be welcome. Before discussing those ideas, I hope everyone is staying healthy in these difficult times. The impact of video conferencing on future legal affairs is still not known, but it’s fair to say that it has many more plusses…

04 Jun: Mediation Message #163

VIDEO CONFERENCING   The coronavirus has dramatically impacted our lives in every conceivable way – personally, medically, socially, financially, politically and legally. It is causing us to reconsider how we do everything. I write only as to a small part of the legal picture – the need for video conferencing as a replacement for in person mediations. There is a concern that video conferencing will not be as effective as meeting face-to-face with the neutral…

04 Jun: Mediation Message #162

SPECULATIVE EXPERT TESTIMONY v. EXPERT QUALIFICATIONS Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 holds that the exclusion of speculative expert testimony is one of a trial judge’s gatekeeper functions. (Id. at pp. 771-772.) In other words, “the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.” (Id. at p….

04 Jun: Mediation Message #161

C.C.P. SECTION 998 OFFERS UPDATED The following appellate decisions from 2018 and 2019 concerning Code of Civil Procedure section 998 offers to compromise, an integral part of the civil settlement process, reflect many interesting subtleties, modifications and revisions to the procedure: Arbitration and 998 Offers  (A 998 offer may be made after an arbitration award) Heimlich v. Shivji (2019) 7 Cal.5th 350: “We hold  a request for costs under section 998 is timely if filed with the arbitrator…

13 Jan: Mediation Message No. 160

TENTH ANNUAL YEAR-END REVIEW This year’s ten Mediation Messages and two Arbitration Insights covered a wide variety of subjects involving mediation, arbitration, settlement procedure, “one can never be too careful in the practice of law,” general procedures, evidence and professionalism/civility. Please refer to my website (www.marcusmediation.com) for the Mediation Messages and Arbitration Insights summarized below for a complete discussion of the subject matter. MEDIATION Mediation Message no. 151 (“Recovering Mediation Fees after Trial”) discussed Berkeley…