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Trial Lawyers Association of Business ASSOCIATION OF BUSINESS TRIAL LAWYERS ORANGE COUNTY Volume III No. 2 EPORT May 2001 Q&A with the Honorable Raymond J. Ikola The Lawyer as Expert Witness: Perils and Pitfalls [Editor’s Note: Our judicial in- By Robert E. Gooding, Jr. terview this issue is with Judge Raymond Ikola. Judge Ikola has Several months ago, I received a call from a lawyer held a variety of positions on the on the East Coast asking if I would be willing to testify Superior Court since his appoint- ment, including Supervising as an expert witness in an arbitration in New York. The Judge of the Civil Panel. He now case involved a multi-million dollar dispute between is assigned to the Complex Civil two large directors’ and officers’ liability insurers cen- Litigation Panel. tering on the reasonable settlement value of a signifi- Disclaimer: The editor was a law cant securities class action case that had been litigated, school classmate of Judge Ikola and then settled, in state and federal courts in Alabama. and they practiced together until Judge Ikola's appointment to the As one who has had considerable experience repre- Q. I understand you bench. But as a condition of the senting defendants in securities class actions, I was have a Ph.D in interview, the editor agreed not to asked to review the voluminous record in the case— electrical engineering. ask about the judge's law school escapades. ] including multiple complaints filed in related cases in Tell me a little about federal and state courts, motions to dismiss and other your engineering ca- relevant pleadings, “hot” docu- reer and why you decided to go to law school. ments produced in discovery, deposition transcripts, inter- A. I worked as a research engineer for eight years with views of key witnesses, corre- RCA Laboratories in Princeton, New Jersey, mostly spondence, and other materi- conducting research on certain types of microwave als—and render an opinion on solid-state devices. I became bored with the work after what the case could reasonably the first six years. For reasons unknown to me, and have settled for. After check- (Continued on page 6) ing on conflicts, I accepted the assignment and embarked upon what turned out to be a time- TABLE OF CONTENTS consuming and arduous proc- ess. Q&A with Hon. Raymond J. Ikola .................. Pg. 1 The Lawyer as Expert: Perils & Pitfalls .........Pg. 1 This was, for me, a new experience. As a business President’s Message .......................................... Pg. 2 trial lawyer, I had worked with and prepared scores of Writ Proceedings in the Court of Appeal ........Pg. 3 expert witnesses in securities, antitrust, and other com- abtl February Dinner Program Review .......... Pg. 3 plex commercial cases. And, while I had testified pre- viously as a percipient witness, I had never before had abtl 28th Annual Seminar .................................Pg. 3 the opportunity to testify as an expert. My direct testi- abtl April Dinner Program Review ..................Pg. 4 mony took the better part of a day, and I was vigorously Cutting off CA Class Actions Before They Start ..... cross-examined by an able and experienced trial lawyer ............................................................................. Pg. 4 for nearly two full days. The assignment proved to be A Word from Our Sponsor ...............................Pg. 5 challenging and interesting, and—while I still would Upcoming Dinner Programs .............................Pg. 9 (Continued on page 8) President’s Message: The Search for Truth by Andrew J. Guilford, President DO YOU HAVE SOMETHING TO SAY? A trial has been called a search for truth, and ultimately If you are interested in submitting material for the job of business trial lawyers publication in any upcoming issues of the abtl is to find that truth. Over the Orange County Report, please contact our 25 years I have been plying this Executive Director at 323.939.1999 or submit trade, I believe the search for your material directly to truth has become more diffi- [email protected]. cult, or perhaps I have just be- come more aware of the chal- lenges in finding the truth. Good trial lawyers must be fully aware of these challenges, and aware of the differ- ent tools available in pursing the truth. P.O. Box 28557, Santa Ana, CA 92799 Phone (323) 939.1999 Fax (323)935.6622 Early on, as a young and perhaps naive litigator, I E-mail [email protected] www.abtl.org was frankly amazed to see how easily some witnesses could lie. As a more experienced trial lawyer, I learned Officers that rationalization, the passage of time, and the psy- Andrew J. Guilford, , President chology of human memory can make people think that Jeffrey W. Shields, Vice President a lie is the truth. With huge dollars on the line, and the Michael G. Yoder , Secretary passage of time between an event and the trial concern- Dean J. Zipser , Treasurer ing that event, the human mind can rationalize a lie into Board of Governors the truth. Examination strategy hoping to convince a Scott D. Baskin ♦ James G. Bohm witness not to lie will be largely ineffective in cases Hon. David O. Carter ♦ Richard A. Derevan with such rationalizers. Robert E. Gooding, Jr. ♦ Richard C. Goodman Hon. Sheila B. Fell ♦ Howard F. Harrison Similarly, human perceptions are faulty, which can John B. Hurlbut, Jr. ♦ Hon. Ray J. Ikola result in an honest person honestly believing that a bald Hon. William F. McDonald ♦ Mark Robinson defendant had curly hair. Perception, and understand- Hon. William F. Rylaarsdam ♦ John B. Sganga, Jr. ing what we perceive, is also affected by the truism that Linda Schilling ♦ Hon. Alicemarie H. Stotler Hon. Gary L. Taylor ♦ Hon. Robert E. Thomas half the human population has below average intelli- Hon. Thomas N. Thrasher, Sr. ♦ Gary A. Waldron gence, and for every person with an IQ around 120, there is a person with an IQ around 80. In our judicial Past Presidents system, such persons are sometimes witnesses, and such Donald L. Morrow ♦ Thomas R. Malcolm Robert E. Palmer witnesses present examination challenges. Editor Societal trends might also impact truth-telling. For Richard A. Derevan, Snell & Wilmer example, our post-modern cynicism about societal val- Editorial Board ues and governmental institutions no doubt make it eas- Justice William Rylaarsdam, Court of Appeal ier for some to lie. I fear that few children these days Todd A. Green, O’Melveny & Myers LLP hear the same story in school that I heard every Febru- Carole E. Reagan, Morrison & Foerster LLP ary 22 about a fallen cherry tree, George Washington, Jeffrey H. Reeves, Gibson, Dunn & Crutcher LLP and the virtue of telling the truth! Sean M. Sherlock, Snell & Wilmer Vikki L. Vander Woude, Morrison & Foerster LLP Finally, of course, some people are just darn good Executive Director liars, either through personal psychopathology or Rebecca Lee Cien, (323) 939.1999 maybe just through years of practice! The statements and opinions in the abtl-Orange County What can we do in our judicial system to combat all Report are those of the contributors and not necessarily those of the editors or the Association of Business Trial (Continued on page 8) Lawyers - Orange County. All Rights reserved. 2 Writ Proceedings in the Court of Appeal abtl February Dinner Program: By Hon. William F. Rylaarsdam The Y2K Presidential Election and the This article previously appeared in The Verdict, the Journal of the Judicial System: Lessons for Litigators Association of Southern California Defense Counsel. By Sean Sherlock Although appeals are often Just when you thought passions had subsided over handled by appellate specialists, the 2000 Presidential election, the abtl’s February pro- petitions for extraordinary relief gram proved that the coals are still hot. Our distin- filed in the Court of Appeal are guished panel, led by moderator Andy Guilford, also generally handled by trial coun- included Wylie Aitken and Professor John Eastman of sel. Therefore, such counsel Chapman University School of Law. As always, the should be aware of the technical panel came with sterling credentials. Mr. Aitken repre- requirements for such writs, the sented now-U.S. Congresswoman Loretta Sanchez in manner in which such writs are her 1996 election recount dispute with then- handled by the appellate courts, Congressman Robert Dornan. Professor Eastman is a and the criteria for granting requested relief. renowned election law expert, and was invited by the Florida legislature to testify before it while the legisla- The most common writ petitions filed in the Court of ture was deliberating whether to enter the Florida re- Appeal are petitions for a writ of prohibition (seeking count fray following last year’s presidential election. an order restraining the trial court from taking some contemplated action) and for a writ of mandate (seeking Our panel emphasized that an election dispute law- an order compelling the trial court to take certain ac- suit is unlike any other type of lawsuit. In addition to tion). Petitions for writ of certiorari (review of a com- being greatly compressed, the process, the parties, and pleted judicial act which is not appealable at all, such as the result are highly politically-charged. The lawyer a judgment after a de novo trial in the superior court in must cope with all the typical challenges posed by a a small claims action or an order holding someone in high profile case, and is shackled in a significant way contempt) are rare. by politics: Sometimes good legal arguments need to take a back seat to political re- The petition for extraordinary writ frequently in- ality. Judges in such cases are cludes a request for a stay, that is for an order prohibit- also under intense pressure be- ing the trial court from proceeding with the contem- cause election law cases do not plated action until the appellate court rules on the mat- typically appear on their ter or prohibiting the trial court from taking any further docket, but when they do ap- action with respect to the case at issue until the appel- pear, they are accompanied by late ruling.
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