MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 115 MAKING AND PRESERVING OBJECTIONS TO MISCONDUCT Despite the best laid plans of mice and men, attorney misconduct at trial will not disappear very soon. (Sorry to burst the bubble of all of the optimists out there.) So, the recipients of such scurrilous and despicable conduct must be prepared to meet these attacks. I’m not talking about meeting fire with fire because judges and jurors will generally condemn both…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 114 FREQUENT COMMENTS BY ATTORNEYS AT MEDIATIONS The following comments are frequently made by attorneys during mediations. I have provided irreverent interpretations of what the speakers may be saying or intending. “We expect significant movement from (the opposing party)” or “They need to make a big move.”MDM’s observation –The speaker sounds like a doctor performing a yearly physical. “This is not a six figure case.” MDM’s observation – The…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 113 THE LIMITATIONS PERIOD FOR LEGAL MALPRACTICE IS EXTENDED Lee v. Hanley (Aug. 20, 2015) case no. S220775, 2015 Cal. LEXIS 5630 holds that an attorney’s refusal to return a former client’s money upon demand does not come within the one-year statute of limitations in C.C.P. sec. 340.6, subd. (a) if the refusal can be construed as a conversion and, therefore, was not part of the attorney’s professional services….
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 112 RENEWED SEC. 473 MOTIONS FOR RELIEF FROM DEFAULT MUST COMPLY WITH SEC. 1008 MOTIONS FOR RECONSIDERATION Most attorneys have moved to vacate a default under C.C.P. section 473(b). If that motion is denied and a second 473(b) motion is required, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (July 20, 2015) no. S210804, 2015 Cal. LEXIS 5114 holds that the second motion must comply with section…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 111 A BLUEPRINT FOR SUCCESSFUL MEDIATIONS Successful mediations don’t happen by accident; they are the result of a number of recognized principles, all of which come under the rubric of preparation. Clients have been prepared. Attorneys talked to their clients about the purpose of mediation, the facts and theory of their respective cases and how to respond, if permitted by the attorneys, to the mediator’s questions. Timely and interesting…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 110 ATTORNEYS MAY NOT MAKE MISREPRESENTATIONS TO THE COURT Both the Business and Professions Code and the Rules of Professional Conduct prohibit attorneys from making misrepresentations to a judicial officer. Business and Professions Code section 6068, subdivision (d), provides that attorneys shall never “seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Rule of Professional Conduct 5-200(B), which adds…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 109 ATTORNEYS SHOULD HONOR AGREEMENTS WITH EACH OTHER A too common refrain or complaint is that attorneys don’t keep their promises to opposing counsel, such as in calendaring matters. While there is no specific ethical rule requiring that such promises be kept, it can be extrapolated from Bryant v. State Bar (1942) 21 Cal.2d 285 and Grove v. State Bar (1965) 63 Cal.2d 312 that the obligation exists in…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 108 CASSEL IS STILL THE LAW Cassel v. Superior Court (2011) 51 Cal.4th 113 holds that mediation confidentiality includes all communications at or in preparation for mediation between clients and their attorneys and, as a consequence, clients cannot sue their counsel for alleged acts of malpractice committed during mediation. Amis v. Greenberg Traurig LLP (March 18, 2015) B248447; 2015 Cal. App. LEXIS 247 reminds that Cassel is still very…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 107 SOMETIMES A JUDGE MAY SAY TOO MUCH As an arbitrator and former judge, I believe trial lawyers want to know what we’re thinking and that we should not “hide the ball” from them. But, when answering questions or thinking out loud, judges must be careful because an erroneous statement about the law can led to a reversal. Which is what happened in People v. Carter (2014) 227 Cal.App.4th…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 106 NEGATIVE RESPONSES TO REQUESTS FOR ADMISSION ARE NOT ADMISSIBLE Before Gonsalves v. Li (California Court of Appeal, Jan. 13, 2015) no. A140284, 2015 Cal. App. LEXIS 26, it was unclear whether parties could be examined about their denials to requests for admission (RFAs). Gonsalves v. Li holds that this practice constitutes error. In Gonsalves v. Li, Li crashed a new BMW during a test drive while Gonsalves, a…