November 2004 / $4

Semiannual Guide to Expert Witnesses

November 2004 / $4

EARN MCLE CREDIT PITFALLS IN SECTION 998 OFFERS page 29

Unauthorized Entry Los Angeles lawyers Deborah A. Kelly and Fernando Gaytan discuss the dangers of UPL page 22

PLUS Private Annuities page 12 Willful Copyright Infringement page 18 Credit Bureau Liability page 36 New! Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California Richard B. Kendall, the Honorable Richard Seeborg, Mary Jo Shartsis, and the Honorable Fern M. Smith

Shining a new light on Practice Guides in California.

The Matthew Bender® Practice Whether you prefer to conduct your research in print, online—or both—you’ll ﬁnd the thorough and Guide series is growing... complete analyses you need with the Matthew Bender Practice Guide series. Authored by leading FEDERAL PRETRIAL CIVIL California litigators and judges, Matthew Bender Practice Guides are updated twice a year to keep PROCEDURE IN CALIFORNIA you current. Each title provides extensive checklists and forms, as well as cross-references to other CALIFORNIA PRETRIAL valuable content such as California Forms of Pleading and Practice, Moore’s Federal Practice®, and CIVIL PROCEDURE Paul R. Kiesel, the California Official Reports. In addition, you’ll ﬁnd easy-to-recognize symbols that highlight traps, the Honorable Peter D. Lichtman, warnings, strategic points, and timing. Watch for new titles that cover additional practice areas as the Edith R. Matthai, and Richard L. Seabolt series expands. For research results that stand alone, experience the power of a practice guide in both CALIFORNIA CIVIL DISCOVERY online and print with the Matthew Bender Practice Guide series. Paul R. Kiesel, the Honorable Peter D. Lichtman, Edith R. Matthai, Richard L. Seabolt, and the Honorable Evelio M. Grillo For more information about the Matthew Bender Practice Guides for California,

CALIFORNIA LANDLORD- call 877.810.5324. TENANT LITIGATION Andrew Westley, Michael J. Saltz ...with more on the way! A MEMBER BENEFIT OF

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. Moore’s Federal Practice is a registered trademark of Matthew Bender & Company, Inc. AL7455 © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. RAISE THE BAR.

DISCOUNTS FOR FRIENDS OF THE COURT.

Nextel has tools to help you get things done faster. In court or on the road. And now, members of the Los Angeles County Bar Association get discounts on all Nextel® phones, rate plans and accessories.

International Law Only Nextel® walkie-talkies are international. With the walkie-talkie built into every Nextel phone, including the i830 and the BlackBerry 7510™, you can connect in under a second to Canada, Mexico, Argentina, Brazil and Peru. And when you’re traveling in those countries, you can connect to the United States just as quickly. All for a fraction of the cost of an international cellular call. You can even access BlackBerry 7510TM your email while you’re abroad.

NextMailSM Send voice attachments to up to 30 recipients anywhere in the world – instantly. Document meetings or send instructions to associates. With NextMailSM, your voice travels with the push of one button. No dialing. No typing. Dictation goes straight to their email address.

Split Billing Maintain control over billing. You can split BlackBerry® email charges from cellular and walkie-talkie charges, so there are separate bills for the firm and the associate.

For special discounts, call 866-805-9890 (reference MLSAB) or visit nextel.com/lacba.

i830

Nextel is a proud sponsor of the Los Angeles County Bar Association.

National Free Incoming Plan: Free Incoming calls are calls received while in the U.S. on Nextel’s Nationwide Network. Free Nationwide Long Distance includes domestic calls only. Unlimited Direct Connect minutes are included in your local calling area only and do not include Group Connect calls, which are $0.15/min. Nationwide Direct Connect calls use the Direct Connect minutes in your plan and incur an additional access charge of either: (i) $0.10/min. multiplied by the number of participants on the call; or, (ii) a monthly flat fee if you sign up for Unlimited Nationwide Direct Connect access. Nationwide Direct Connect calls are charged to the call initiator. Group Connect charges are calculated by multiplying the minutes of use, number of participants a nd the applicable rate. Group Connect can only work with members of the same network while in their home market. Nationwide service is not available for Group Connect calls. Cellular overage is $0.40/min. Cellular calls round to the next full minute. Unused minutes do not accumulate to the next billing cycle. Nights are 9:00pm to 7:00am. Weekends begin Fri. at 9:00pm and end Mon. at 7:00am. Up to $0.15 per sent or received text message depending on message type. Wireless number portability may not be available in all areas or for all numbers. Because number portability requires the efforts of multiple companies, the amount of time it takes to transfer your number(s) will vary. Nextel’s Nationwide Network serves 296 of the top 300 markets. ©2004 Nextel Communications, Inc. NEXTEL, NEXTEL. DONE., DIRECT CONNECT, GROUP CONNECT, NATIONWIDE DIRECT CONNECT NextMail and the Driver Safety logo are service marks, trademarks, and/or registered trademarks owned by Nextel Communications, Inc. MOTOROLA and the Stylized M Logo are registered in the U.S. Patent & Trademark Office. The BlackBerry and RIM families of related marks, images and symbols are the exclusive properties of and trademarks or registered trademarks of Research In Motion Limited — used by permission. All other product or service names are property of their respective owners. All rights reserved.

November 2004 Vol. 27, No. 8

FEATURES

22 Unauthorized Entry BY FERNANDO GAYTAN AND DEBORAH A. KELLY Practitioners need to be wary of their relationships with individuals who are not authorized to practice law in California

29 Bad Compromises BY JUDITH ILENE BLOOM Ambiguity over the right to correct drafting errors and what constitutes a reasonable offer has undermined the effectiveness of Section 998 Plus: Earn MCLE Credit. MCLE Test No. 131 appears on page 31.

36 Faith and Credit BY ROBERT F. BRENNAN A careful reading of the Federal Credit Reporting Act makes clear that it does not preempt California’s credit reporting law

44 Special Section Semiannual Guide to Expert Witnesses

The magazine of The Los Angeles County Bar Association

LosAngelesLawyerDEPARTMENTS 10 Barristers Tips 80 Computer Counselor Compelling arbitrations and conﬁrming an Considering the utility of digital pens arbitration award BY GORDON K. ENG BY WENDY L. WILCOX AND THOMAS H. SCHELLY 84 Closing Argument 12 Tax Tips Judging at the Games The use of private annuities in estate and BY ROBERT L. BASTIAN JR. tax planning BY F. BENTLEY MOONEY JR. 77 Classiﬁeds

18 Practice Tips 82 Index to Advertisers Proving willfulness in copyright infringement actions 83 CLE Preview BY FREDERICK F. MUMM

Cover photograph by Tom Keller 78 LACB Foundation 2003-2004 Fund Drive Results DAVID OSTROVE ■ ATTORNEY–CPA LosAngelesLawyer • Expert Witness — 43 years VISIT US ON THE INTERNET AT http://www.lacba.org/lalawyer • Lawyer/Accountant Malpractice E-MAIL CAN BE SENT TO [email protected] • Forensic Accounting EDITORIAL BOARD • Tax Matters Chair GARY RASKIN • Business Valuation Articles Coordinator • Value of Services R. J. COMER • Computation of Damages JERROLD ABELES ELAINE R. ABBOTT • Mediator, Arbitrator DANIEL L. ALEXANDER HONEY KESSLER AMADO ETHEL W. BENNETT 323/939-3400 [email protected] CHAD C. COOMBS KEITH E. COOPER ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG A PUBLIC SPEAKING WORKSHOP FOR LAWYERS DANIEL A. FIORE JOSEPH S. FOGEL STUART R. FRAENKEL sm MICHAEL A. GEIBELSON Mastering the Art of Public Speaking TED HANDEL Because your abilities as a lawyer are measured by your skills as a speaker! DEAN HANSELL JEFFREY A. HARTWICK STEVEN HECHT To Enroll or Get More Information KATHERINE M. HIKIDA 3-Week Course Ð 12 Hours of MCLE ROXANNE HUDDLESTON Tuesday & Thursday Evenings Contact the Trial Advocacy Group LAWRENCE J. IMEL JOEL T. KORNFELD 6 to 8 p.m. in Downtown Los Angeles (213) 994-7042 JOHN P. LECRONE HYACINTH E. LEUS February 1, 3, 8, 10, 15 & 17, 2005 [email protected] PAUL MARKS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. The Trial Advocacy Group is a State Bar of California approved MCLE provider and DENNIS PEREZ certiﬁes that this activity has been approved for MCLE credit by the State Bar of California GERALD F. PHILLIPS THADDEUS M. POPE JACQUELINE M. REAL-SALAS SUE CAROL ROKAW KURT L. SCHMALZ DAVID SCHNIDER GRETCHEN D. STOCKDALE KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER PATRIC VERRONE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO Account Executive MARK NOCKELS Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P.O. Box 55020, Los Angeles CA 90055. Copyright ©2004 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro- hibited. Printed by Banta Publications Group, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer November 2004 Together We’re Stronger …and better able to fill your insurance needs

The combined leverage, experience and resources of the Los Angeles County Bar Association and Aon are the surest way to get reasonable professional liability coverage. Many underwriters have fully or partially quit the business because of a reduction in surplus capital. Consequently, law firms face higher premiums for significantly reduced coverage...or no coverage at AON ATTORNEYS’ ADVANTAGE all, forcing them to go out of business! • Broad coverage The solution is tailored to your needs • Wide range of limits and deductibles • Competitive rates • Personalized service Through this exclusive arrangement with the LACBA, from your local Aon Aon, one of the largest providers of professional broker/advisor liability insurance for attorneys around the country, • Online application process will survey the rates of a select group of highly rated • Risk management underwriters and locate the best malpractice protection quarterly newsletter available to meet your special needs and budget. • Risk management Contact us today for a no-obligation quotation of rates. resources website

Call Toll-Free 800-634-9177 Fax Toll-Free 800-977-1112 Or Visit www.aonsolutions.com/aisp4

Attorney code #4B1AV003 to apply for a quote online CA License #0795465 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-2503 Telephone 213/627-2727 Visit us on the Internet at www.lacba.org ASSOCIATION OFFICERS: President JOHN J. COLLINS President–Elect EDITH R. MATTHAI Senior Vice President CHARLES E. MICHAELS Vice President GRETCHEN M. NELSON Assistant Vice President DANETTE E. MEYERS Assistant Vice President MICHAEL E. MEYER Assistant Vice President ALAN K. STEINBRECHER Immediate Past President ROBIN MEADOW Executive Director RICHARD WALCH Associate Executive Director/General Counsel W. CLARK BROWN

BOARD OF TRUSTEES DON MIKE ANTHONY LINDA D. BARKER JOHN M. BYRNE THOMAS P. CACCIATORE LUCI-ELLEN M. CHUN CLAIRE CIFUENTES KATESSA C. DAVIS KERRY J. DOCKSTADER JEFFREY W. ERDMAN GARY A. FARWELL JAMES R. FELTON RICHARD B. GOETZ LAURENCE R. GOLDMAN TOMAS A. GUTERRES BRUCE G. IWASAKI SAMANTHA PHILLIPS JESSNER MITCHELL A. KAMIN HERBERT KATZ ELISHA FARA LANDMAN LAWRENCE E. LEONE CINDY J. MACHO ELAINE W. MANDEL PATRICK MCNICHOLAS WINSTON A. PETERS MARK L. SHARE DOMINQUE R. SHELTON BRIAN K. STEWART KIM TUNG ROBERT G. VAN SCHOONENBERG GAVIN H. WASSERMAN SCOTT E. WHEELER JULIE K. XANDERS AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER/MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY GLENDALE BAR ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS’ CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION * NEW! NOW INCLUDED, OPTION TO EARN 24 MCLE CREDITS * SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA Don t miss the next exam! Call 800-430-3588 Today. SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer November 2004 Is A Malpractice Insurance Crisis Looming In Your Horizon? Are You Ready?

Over 15 11 carriers have withdrawn from the California market. Will your carrier be next? The changes in the marketplace are troubling. It is an unknown future. Non-renewals are commonplace. Some carriers can’t secure sufficient reinsurance to operate their professional liability programs. A major carrier was recently declared insolvent. Other carriers have been downgraded by A.M. Best. Severe underwriting restrictions are now being imposed. Rates are not certain. It’s all very unsettling.

Be prepared. Be informed. Lawyers’ Mutual Policyholders are ...... and have been for the past 25 years

Secure Your Future. Insure WithWith Lawyers’Lawyers’ MutualMutual..

Investigate Lawyers’ Mutual. Call us directly at (800) 252-2045. Find us at www.lawyersmutual.com Email us at [email protected]

LAWYERS’ MUTUAL INSURANCE COMPANY 3110 West Empire Avenue, Burbank, CA 91504 Legislative Intent. You probably seldom From the Chair BY GARY S. RASKIN need it. But when the need does arise, it can be crucial to winning your case.

Tracking down sources of information can be a frustrating and time consuming process. When legislative history is important to your alifornia Code of Civil Procedure Section 998 and Rule 68 of the case it can be very cost effective to engage our Federal Rules of Civil Procedure are well-intentioned statutes. professional expertise to research the history Offers to compromise under Section 998 and offers of judgment and intent of the statutes or administrative C under Rule 68 were enacted to promote settlements. Unfortunately, enactments at issue in your case. neither Section 998 nor Rule 68 has satisfied its objective. When you call, you can explain what In this month’s issue, Judith Ilene Bloom examines many of the pitfalls that face you need, or tell me your situation and I can practitioners when serving Section 998 offers. As Bloom explains, the consequences make suggestions on possible approaches. of a procedurally defective Section 998 offer may be severe and, as a result, many You can draw on my years of experience, so lawyers do not believe that the risk is worth the potential advantages of a Section you will know what is likely to be available on your topic. You will get a precise quote 998 offer. The conclusions reached by Bloom apply to Rule 68 offers as well for the cost of the project. When you (although Rule 68 is limited to offers by defendants). authorize us to proceed, the report will be in Section 998 and Rule 68 also do not achieve the goal of promoting settlements your office on the date you specify. because the disincentives for rejecting an offer under Section 998 or Rule 68 and then receiving a less favorable result during trial are insufficient—and they frequently are JAN RAYMOND not imposed by courts. Lawyers and litigants simply do not perceive that potential LEGISLATIVE HISTORY & INTENT cost shifting is a sufficient motivator to encourage statutory offers in most cases. Toll Free (888) 676-1947 Usually, the most expensive aspect of civil litigation is attorney’s fees. It is diffi- Fax (530) 750-0190 ■ E-mail: [email protected]. cult to imagine litigating a moderately complex case through trial for less than www.naj.net $200,000 in attorney’s fees; indeed, most cases with any degree of complexity are State Bar #88703 significantly more expensive. If Congress and the California legislature want to ensure that the statutes they enacted promoting the settlement of litigation will actually achieve their goal, the statutes should be amended. Section 998 and Rule 68 should include a penalty that will enable parties to shift their attorney’s fees. (Rule 68 also should be expanded to include offers by plaintiffs.) In addition to the existing dis- Construction incentives for rejecting an offer that was more favorable than the trial result, a party would be obligated to pay the offeree’s reasonable attorney’s fees accruing from the Litigation date the offer was made. This modification to the statutes would turn the American Rule—each party bears orMediation its own attorney’s fees—on its head. In some circumstances, however, the shifting of attorney’s fees already applies to offers under Section 998 and Rule 68, such as More than 40 years of construction when attorney’s fees are deemed an item of costs. But in most cases attorney’s fees expertise provides you and your fall outside the scope of the cost-shifting provisions contained in Section 998 and client with formidable forensic expert Rule 68. witnesses, compelling litigation The inclusion of a provision for shifting attorney’s fees in Section 998 and Rule support...or skillful mediation of 68 offers would raise the stakes for rejecting those offers. It would also increase the complex and highly technical issues. number of offers made and should increase their reasonableness, because an offer that is in the range of the value of the case would result in significant benefits. Amending Section 998 and Rule 68 to include a penalty that shifts attorney’s fees is not without its drawbacks. Most notably, in cases involving contracts in which Forensic Expert Witnesses there is no provision for attorney’s fees, an amendment would, in essence, supersede Mediation the intent of the parties. In addition, in cases in which one party has limited assets, the attorney’s fees penalty effectively would be one-sided (which often is a reason Michael S. Poles GC, CM, RCI, DABFET, ACFE for excluding attorney’s fees provisions from contracts). CONSTRUCTION EXPERT/MEDIATOR The attractiveness of shifting attorney’s fees is that the penalty genuinely rewards the party that reasonably evaluated its case and offered to compromise on terms that PHONE: 323-874-8973 were consistent with the value of the case. It also helps neutralize the power that one FAX: 323-874-8948 party with superior financial resources may have to flood the other party with a sea WEB: www.mpgroup.com of paper, since the fees incurred in response could be recovered. EMAIL: [email protected] The real question for legislators and everyone in the legal profession is: How badly 1202 Greenacre Avenue do we want to promote settlements? ■ West Hollywood, California 90046-5708 Mediation Practice Areas Gary S. Raskin is a principal of Garfield Tepper & Raskin, where his primary area of practice Construction - Premises Liability - Real Estate Health Care - Medical Malpractice - Elder Care is entertainment litigation. He is the chair of the 2004-05 Los Angeles Lawyer Editorial Board.

8 Los Angeles Lawyer November 2004

Barristers Tips BY WENDY L. WILCOX AND THOMAS H. SCHELLY

Compelling Arbitrations and Conﬁrming an Arbitration Award

MOST COMMERCIAL CONTRACTS executed today contain an arbi- the opposing party may file the motion to compel arbitration and a tration clause. Parties typically opt to include an arbitration clause motion to stay the pending action, and need not file the petition. to avoid the expense of litigation. Arbitration is the less expensive, speedier route for parties to resolve their disputes. Ironically, how- Back to Arbitration ever, keeping a dispute “out” of a courtroom often involves going to Once the parties are on the track to arbitration, they must choose an court to compel and manage the arbitration and confirm the arbitration arbitrator. Despite the vast number of competent arbitrators that are award. A brief step-by-step guide can help new practitioners learn to available, at times parties cannot even agree upon an arbitrator. If the utilize a court solely to effectuate an arbitration rather than defeat parties are unable to agree, a party should file a motion with the court its purpose. for an order appointing a neutral arbitrator. If the contract provides Code of Civil Procedure Sections 1280 et seq. set forth the statu- for a specific method of appointing an arbitrator, this must be tory framework for the enforcement of arbitration clauses. If the parties agree to arbitrate, there is no need for the involvement of any court, because the parties are, in effect, per- The petition includes a prayer for judgment requesting an order forming duties that are pursuant to a contract. Despite a proper arbitration clause in a valid contract, however, a party may attempt requiring that, pursuant to the contract, the parties submit any to avoid its obligation to arbitrate. This party may either ignore an arbitration demand or file a lawsuit. claims or disputes to arbitration. If a party ignores its opposing party’s arbitration demand, the aggrieved party should file a petition requesting that the court order the parties to arbitrate any included in the motion. If the contract does not describe a method, dispute that is covered by the contract. The petition is, in essence, a the parties must provide the court with a list, made jointly, of five suit in equity to compel the specific performance of a contractual pro- potential arbitrators. vision. Once a party has refused to arbitrate a dispute that is covered Once the dispute has been arbitrated and the arbitrator has ren- by the contract, the party seeking to compel arbitration faces the four- dered an award, any party may petition the court to confirm, correct, year contract statute of limitations.1 or vacate the award. Specifically, the prevailing party should petition the court to confirm the arbitration award and enter a judgment. Contents of the Petition However, the petitioner must wait 10 days after the date the final The petition sets forth specific allegations (including the existence of award is served on the parties before filing the petition. The petitioner the arbitration clause and contract) and includes a prayer for judg- has up to four years from the date of service of the final award to file ment requesting an order requiring that, pursuant to the contract, the a petition. If the petitioner had previously petitioned the court to com- parties submit any claims or disputes to arbitration. If the contract pel arbitration, the petition to confirm the arbitration award must be provides for the manner of service of the petition, the petition should filed in the same court. Otherwise, the petition will be filed as a new comply with the contract. Otherwise, the petition must be served in matter and will be assigned to a courtroom. the same manner as a complaint. In order to ensure a party’s com- If the award is confirmed by the court, the prevailing party obtains pliance with arbitration, the petitioner should request that the court the same rights of enforcement as it would under any civil judgment, retain jurisdiction over the matter until the court confirms the final including the right to attach property and enforce liens. Otherwise, award. This request, if granted, will enable the petitioner to file a the arbitration award has the same force and effect as the contract motion to confirm the arbitration award with the same court, should between the parties. ■ the petitioner prevail at arbitration. Once the petition is filed with the court and served on the parties, 1 Spear v. California State Auto. Assoc., 2 Cal. 4th 1035, 1041-42 (1992) (unin- the opposing party has 10 days to oppose the petition (30 days if the sured motorist claim); Meyer v. Carnow, 185 Cal. App. 3d 169, 173-74 (1986) (apply- party is outside California). By statute, the hearing must be set at least ing the four-year statute of limitations for contracts and not the three-year medical malpractice limitation). 10 days from the date of service of the petition. The petitioner must also file a motion to compel arbitration, including a memorandum of points and authorities and supporting declarations. This motion, Wendy L. Wilcox is a partner and Thomas H. Schelly is an associate with Jampol, in essence, reiterates the petition. Zimet & Wilcox LLP. Their practice includes professional and products liabil- If, instead of ignoring a demand for arbitration, one party files suit, ity, insurance coverage, and construction defect litigation.

10 Los Angeles Lawyer November 2004 SwitchSwitch toto VerizonVerizon Wireless.Wireless. Upgrade to the color screen BlackBerry 7750™ today.

The BlackBerry 7750™ handheld gives you wireless access to e-mail, calendar, contacts and key legal applications – in color – just about anywhere your practice takes you. • Make and receive wireless phone calls • Increase responsiveness with “always-on” technology • Stay sharp with on-the-spot access to legal reference documents • Raise profitability with case management, time entry and billing tools • Switch with ease – the BlackBerry 7750™ works with existing servers Contact our dedicated business team today to learn how Verizon Wireless solutions can take your practice to the next level. Valuable corporate discounts are available.

BlackBerry 7750™ with color display 1.866.822.9558 verizonwireless.com Or contact your dedicated Verizon Wireless Business Sales Representative.

Important Consumer Information: Subject to Customer Agreement, service plans, terms and conditions of BlackBerry® product brochure and credit approval. Coverage & service not available in all areas. Must be within National Enhanced Service Rate & Coverage Area to receive e-mail. Individuals with Desktop Redirector must have desktop PC on and in a condition to receive e-mail. Voice calls cannot be received when an e-mail or other data transmission is occuring. The BlackBerry and RIM families of related marks, images and symbols are the exclusive properties of and trademarks or registered trademarks of Research In Motion Limited—used by permission. ©2004 Verizon Wireless. Tax Tips BY F. BENTLEY MOONEY JR.

The Use of Private Annuities in Estate and Tax Planning

THE PRIVATE ANNUITY HAS SURFACED PERIODICALLY over the past acquires legal title to the transferred property and may sell or oth- 75 years as a financial planning tool. Its usefulness fluctuates in con- erwise dispose of it as desired. The annuitant could retain a security cert with income tax and interest rates. Congress imposes the former interest in the transferred property, but doing so leads to recognition on the payor, and the Internal Revenue Code of 1986 is used to cal- of capital gain on the exchange.5 This is not an issue, of course, when culate the annuity benefit set by the latter. Presently, tax and interest the exchange property is cash or a high-basis capital asset. rates are relatively low,1 leading to a healthy reconsideration of this The periodic installments must be in the nature of an annuity— well-established tax and estate planning tool. The principal benefits the systematic liquidation of principal and interest over a specified of a private annuity include: period of time. For the desired estate tax results, the annuity should 1) Removing assets from the annuitant’s gross estate for federal continue for the annuitant’s lifetime, no matter how long, but not one estate tax purposes without the payment of a gift tax while at the same day more. This, of course, has an economic impact on the annuitant time retaining a steady stream of income. 2) Spreading the taxation of capital gains over the life expectancy of the annuitant when exchanging appreciated property for the annuity. Because a private annuity involves a bona fide purchase, it reduces 3) Delivering the appreciated property to the payor with a new basis (its value on the date of the exchange) that permits its immediate sale the annuitant’s estate without characterizing the transaction as a gift. without the payor incurring capital gain taxes. If used artfully, private annuities may thus be the most powerful weapon available today for postponing income and payor quite apart from tax considerations. The annuity install- taxes, avoiding wealth management and investment worries, and ments are ordinarily level for life, but may be inflation-adjusted so preserving a source of income. long as the present value at the date of exchange is the same.6 A private annuity is an agreement between two parties, neither of A private annuity should not be confused with a life estate. The whom (or which) is in the business of issuing annuities. Under the former provides a predetermined income lasting for the lifetime of the agreement, one party (the annuitant) transfers property to the other annuitant, whereas a life estate does not guarantee income and pays (the payor) in exchange for the payor’s promise (usually unsecured) only as much income as the supporting principal earns. With a life to make periodic payments in specific amounts to the annuitant, estate, the transferor transfers the property but retains an interest in typically for the annuitant’s lifetime. For example, a father gives his it. This is not the case with a properly arranged private annuity. The son the family farm in exchange for the son’s promise to pay the father Internal Revenue Service has argued that the purchase of a private $l,000 per month for life. The private annuity differs from grantor- annuity constitutes a transfer with a retained interest that causes the retained interest trusts of one stripe or another in at least one respect: property to be brought back into the gross estate of the annuitant under The tax objectives are substantially satisfied whether or not the IRC Section 2036(a),7 as if it were a life estate. The courts, however, annuitant lives out his or her life expectancy. have firmly rejected that contention, based on the character of the pri- The defining characteristics of the private annuity include an vate annuity transaction as a purchase and sale at fair market value.8 agreement that establishes the annuitant as a general creditor of the However, this characterization is not automatic. Whether the payor.2 The parties are usually individuals who are related to each annuitant is treated as having retained an interest in the property other, although other entities are permitted. Private annuities can be exchanged for the annuity is based on the substance and effect of the arranged between a corporation and an individual, a trust and an indi- transaction, not on the subtleties of draftsmanship.9 Several factors vidual, or between an estate and a corporation (with the estate are to be taken into account, no one of which controls the result. The exchanging property or stock for payments by the corporation mea- payor must be personally liable for the annuity payments, the annu- sured by the life of an estate beneficiary). Annuities are also used ity payments should not be an encumbrance on the property between a corporation and a retiring shareholder under a stock exchanged, and the amount of the annuity installments should have redemption arrangement, with annuity installments serving in lieu of no relationship to the income from the property exchanged. Other the more usual lump-sum payment. factors considered include: The payor must not be a person who is engaged in the business • The transaction must transfer all dominion and control over the of issuing annuity contracts, even occasionally. If this condition is not property from the annuitant to the payor and may not include any met, the difference between the present value of the annuity on the date of exchange (set by treasury regulations)3 and the annuitant’s basis F. Bentley Mooney Jr. is a sole practitioner in North Hollywood. His practice in the property is immediately recognized as a capital gain.4 is limited to domestic and international business, estate planning, trusts, pro- As soon as the private annuity agreement is executed, the payor bate, and related taxation matters.

12 Los Angeles Lawyer November 2004 “I missed the deadline? Aaarrggh!” Don’t get caught with your pants down—DOD your dates first

Now, you can drastically reduce malpractice exposure Think about it—no more worries of calendar vs. court while saving countless hours of time. Introducing days, local vs. federal holidays, or counting backwards Deadlines On DemandTM (“DOD”), the first nationwide and forwards—DOD does it all. Plus you can bill-back legal deadline calculation service. your clients for the minimal DOD research charges. DOD is fast, accurate and inexpensive. It’s powered Why run the risk of missing critical dates? Protect your by CompuLaw,® the leader in court rules-based clients with the same CompuLaw-checked deadlines calendar technology. that the big firms have used for decades. Visit www.deadlines.com and DOD your dates today! Access DOD to check your deadlines. No need to purchase, install or learn software—just log onto the DOD website. Enter basic case information and watch The Premier Legal Deadline DOD instantly display your deadlines. You can SM ® Calculation Service import your dates into Outlook, or any application TM supporting iCalendar files. (888) 363-5522 | www.deadlines.com

For a FREE PREVIEW: Use Promo Code LAL1104

Copyright © 2004, Deadlines on Demand LLC, all rights reserved. U.S. and foreign patents pending. CompuLaw® is a registered trademark of CompuLaw LLC. security for the promise to pay—including erty and deliver it to the children at the depending on the facts and circumstances. The reversion of the property on default, escrow stepped-up basis acquired at death,12 the annuitant’s investment in the annuity for pur- accounts, or other devices. annuitant may exchange it for a private annu- poses of computing the income tax exclu- • The documentation must be consistent with ity from the children. The children take own- sion ratio is the annuitant’s basis in the the notion that an annuity was intended. ership with the current fair market value as exchange property. If the exchange property • The payor must be free and able to sell, its basis (so they can sell it without capital gain is classified for income tax purposes as a cap- assign, transfer, and convey the property taxes and redeploy the proceeds into income- ital asset (e.g., a commercial building), the exchanged for the promised payments. producing investments). The annuitant annuitant realizes a capital gain on the • The payments must be based on the Treas- thereby converts the potential estate tax bur- exchange in an amount equal to the difference ury Regulations under IRC Section 7520. den to a life income.13 between its basis and the present value of • The annuitant should not retain control Because of a private annuity’s dramatic the annuity received in exchange. But, if the over the property, its investment, or the invest- effect in eliminating gift and estate taxes on promise to pay is unsecured, the exchange is ment of its sale proceeds. property exchanged for the annuity, the IRS classified as an open transaction, with capi- is clearly on the lookout for “deathbed” tal gain recognized ratably over the life Benefits of Private Annuities arrangements. Revenue Ruling 80-8014 estab- expectancy of the annuitant.19 Therefore, The private annuity may be used as a “last lished that the mortality tables are to be dis- each annuity installment is allocated partly to chance retirement fund.” For the annuitant regarded if death is imminent, thereby depriv- basis (recovered tax free), capital gain (taxed who never prepared for retirement, a private ing the annuitant of the tax benefits of an at the preferred rate if long term) and ordi- annuity may provide economic security in a annuity conforming to all legal requirements. nary income (taxed at ordinary income tax variety of ways. The annuity may be used to In challenging transactions involving seri- rates). If the annuity is a life annuity and the create a market for an otherwise unmar- ously ill annuitants, the IRS contended in annuitant survives beyond life expectancy, ketable business or assist in the sale of unde- one case that the annuity payments were the capital gain portion of the annuity veloped land owned by the annuitant. never intended. The U.S. Tax Court, however, becomes taxable as ordinary income.20 The Avoiding gift and estate taxes is a popu- was more generous. In Estate of Fabric,15 portion allocated to recovery of basis, how- lar use for a private annuity. Taxable gifts will the annuitant was scheduled for open heart ever, continues tax free for life. use up part of the donor’s lifetime (unified) surgery at the time the annuity was estab- If the promise to pay the annuity install- applicable exclusion amount10 and increase lished. She survived the surgery by 17 months. ments is secured (as with a deed of trust), the the tax payable on death if the date-of-death In affirming the legitimacy of the transac- result is different: Any capital gain must be value of the estate exceeds the remaining tion, the court stated: fully recognized in the year of the exchange. exclusion. Because a private annuity involves At the time of decedent’s execution of As noted earlier, this is not an issue when the a bona fide purchase, it reduces the annuitant’s the annuity agreement, it was not exchange property is cash or a high-basis estate without characterizing the transaction established that her maximum life capital asset. as a gift and, thus, without using any of the expectancy was one year or less. In If the annuity becomes worthless (e.g., annuitant’s lifetime exclusion. Therefore, the addition, while the decedent under- the payor becomes insolvent), the remaining annuitant may remove unlimited amounts went open heart surgery five days later, value (price paid less the value of annuity from the estate without gift tax. she survived the operation by one year installments received) may be deducted by the Shifting appreciation to the next genera- and five months. Furthermore, the un- annuitant as a capital loss.21 tion is another attraction. When a valuable controverted testimony of decedent’s Basis is affected by the existence of a gift business shows promise of continued growth, physician was that as of late 1975, interest in a private annuity. Specifically, a tax the owner approaching retirement may wish decedent should live several more may be incurred if the fair market value of the to exchange it with his or her children for a years, possibly even five more years…. property exchanged exceeds the present value life annuity. This removes it from the annu- The evidence demonstrates that the of the annuity or if it exceeds the amount the itant’s gross estate and replaces it with an decedent’s death was not clearly immi- annuitant would have paid an insurance com- annuity income of equal value. It simultane- nent or predictable at the time she pany for the same benefit. The excess is the ously adjusts the business’s basis to what entered into the annuity agreement. amount treated as a gift.22 If this happens, the amounts to fair market value in the hands of Only where death is imminent or pre- payor assumes the annuitant’s basis in that the children as payors. This, in turn, shifts any dictable will departure from the tables part of the property. This affects both depre- future appreciation in the business to the be justified.16 ciation/amortization deductions available to next generation. Congress attempted in 1990 Similarly, in Estate of McDowell,17 the the payor and capital gain on a later sale. to eliminate this type of appreciation-shifting transaction was respected because, although If the primary purpose of private annuities technique by enacting IRC Chapter 14 and the annuitant’s death was imminent, his life is to remove the asset from the annuitant’s repealing IRC Section 2036(c). The tech- could be prolonged by treatment. gross estate for estate tax purposes, the pay- niques addressed by the new Chapter 14, The regulations now provide more of a ments stop at the death of the annuitant, however, are gift arrangements requiring bright-line test: If the probability of death leaving no remaining value to tax. If at death retention of an interest in the gift property.11 within a year is at least 50 percent, the annu- there is a surviving spouse and the annuity is The private annuity is a purchase. So, if made itant is considered terminally ill for these structured to continue for the lifetime of the at fair market value, the undesirable effects purposes. However, if the annuitant survives survivor (joint and survivor annuity), the of Chapter 14 are avoided. for 18 months after purchasing the annuity, marital deduction permits deferral of any Trading capital for income offers another he or she is rebuttably presumed not to be ter- estate tax on the value of the annuity pay- use for private annuities. The prospective minally ill.18 ments remaining unpaid at the first death.23 annuitant may own property producing little On the death of the survivor, the annuity or no income (such as unimproved real prop- Tax Consequences term expires, leaving no remaining value to erty), which as often as not has appreciated The income tax treatment to the annuitant tax. substantially. Rather than retain the prop- under a private annuity transaction varies, Private annuity settlement options include

14 Los Angeles Lawyer November 2004 Let’s Celebrate the Soul in Solo

Other lawyers say you’re a maverick. Maybe they have you ﬁgured right: You go your own way, make your own decisions — blaze your own law practice. lexisONE® likes your style. It’s why we offer LexisNexis™ research priced by the day, week or month for solos. With our research packages, you’re free to access the LexisNexis research tools and materials you need, for the times you need them.

Access:

• LexisNexis™ Enhanced Case Law • Annotated Rules and Statutes • Shepard’s® Citations Service • Public Records • Administrative Materials • Journals and Law Reviews • News • Matthew Bender® Analytic Content • Expert Witness Directories • Verdicts and Settlements

The price won’t hold you back. Research packages from lexisONE include free printing and unlimited searching, and access to the LexisNexis™ Total Research System — to help you stay ahead of the pack. LexisNexis research from lexisONE. You can go your own way. lexisONE. Let’s Solo. www.lexisone.com/solo

The Resource for Small Law Firms

LexisNexis and the Knowledge Burst logo are trademarks, and Shepard’s and lexisONE are registered trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. © 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL6271 Statement of Ownership, Management and Circulation annuity payments for the life of the annuitant, of private annuities in estate planning include UNITED STATES POSTAL SERVICE (Required by 39 USC 3685) for a specific period of time, for the joint the following: lifetimes of joint annuitants and that of the In theory, any type of property can be used 1. Publication Title: Los Angeles Lawyer • 2. Publication Number: 01622900 survivor, and for life of the annuitant with the for the private annuity transaction. The ben- 3. Filing Date: October 1, 2004 refund of any principal remaining upon pre- efits are greatest, however, when the annui- 4. Issue Frequency: Monthly (Except combined July/August) mature death paid to a named beneficiary. As tant either wants to spread the capital gain 5. Number of Issues Published Annually: 11 noted above, the annuity installments may taxes on appreciated property over several 6. Annual Subscription Price: $14.00 members; also be level or inflation-adjusted. To the years or wants to avoid estate taxes. $28.00 nonmembers 7. Complete Mailing Address of Known Office of extent a benefit is payable on the death of the • In order to protect against an IRS claim that Publication: Los Angeles Lawyer, 261 S. Figueroa annuitant, that benefit constitutes an asset the transaction was not made “at arm’s Street, Suite 300, Los Angeles, CA 90012-2503 included in the gross estate of the deceased.24 length” (that is, was a product of collusion 8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Los There are income tax consequences for the designed to improperly reduce taxes), the Angeles Lawyer, 261 S. Figueroa Street, Suite payor as well. First, there is no deduction annuitant and payor may consider engaging 300, Los Angeles, CA 90012-2503 25 9. Full Names and Complete Mailing Addresses of for payments made to the annuitant since separate attorneys. Publisher, Editor, and Managing Editor they are deemed payments on the purchase • The payor may be unimpressed with the Publisher: Samuel L. Lipsman, Los Angeles price of the property. Also, if the property idea of buying what he or she expects to Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503. Editor: Samuel L. exchanged for the annuity is a wasting asset, inherit. There are at least two reasons to Lipsman, Los Angeles Lawyer, 261 S. Figueroa the depreciation/amortization deductions are acquire the asset by means of a private annu- Street, Suite 300, Los Angeles, CA 90012-2503. adjusted in accordance with the basis adjust- ity: 1) It eliminates all doubt about the trans- Managing Editor: Samuel L. Lipsman, Los 26 Angeles Lawyer, 261 S. Figueroa Street, Suite ment in the hands of the payor. This is par- fer of the asset—a will can be changed, but 300, Los Angeles, CA 90012-2503. Contact ticularly important if the property was fully the private annuity agreement cannot be Person: Samuel L. Lipsman. Telephone: (213) 896-6503 depreciated/amortized by the annuitant prior modified without the consent of both parties, 10. Owner: Los Angeles County Bar Association, to the exchange. and 2) Liabilities that could consume the 261 S. Figueroa Street, Suite 300, Los Angeles, There may also be gift tax consequences property in its present form (such as the costs CA 90012-2503 11. Known Bondholders, Mortgagees, and Other to the payor. Gift tax may be imposed on the of long-term nursing home care) may be elim- Security Holders Owning or Holding 1 Percent private annuity transaction if the value of inated. or More of Total Amount of Bonds, Mortgages, the annuity exceeds the fair market value of Sometimes, the payor develops a startling or Other Securities. None • 12. Tax Status. The purpose, function, and nonprofit the property exchanged, because the payor is and abiding interest in the longevity (or lack status of this organization and the exempt status deemed to make a gift to the annuitant with thereof) of the annuitant, an interest that for federal income tax purposes: Has Not Changed During Preceding 12 Months. N/A every annuity payment. These sometimes could disrupt an otherwise healthy family 13. PublicationTitle: Los Angeles Lawyer. unexpected—and often unfavorable—con- relationship. If the annuitant lives beyond 14. Issue Date for Circulation Data Below: September sequences should be avoided unless part of a life expectancy, the payor pays more than 15. Extent and nature of circulation: (Column 1: Average No. Copies Each Issue During Preced- larger plan. expected—perhaps much more. ing 12 months. Column 2: Number Copies of There may also be consequences for the • If the annuitant outlives life expectancy, the Single Issue Nearest to Filing Date.) payor’s estate tax if the payor dies before the capital gain portion of the annuity install- Column 1 Column 2 a. Total Number of Copies annuity obligations have ended. Remember ments becomes ordinary income. (Net Press Run) 24,649 31,030 that the obligation to make annuity pay- • The payor receives no income tax deduction b. Paid and/or Requested Circulation ments does not attach to the property for the annuity payments. The need to earn (1) Paid/Requested Outside-County exchanged; it is personal to the payor. Thus, a large enough pretax return to permit the Mail Subscriptions stated on even if the property is sold after the exchange, payment of annuity installments without Form 3541 23,381 29,501 (2) Paid In-County Mail the payor’s obligation remains. If the payor invading the principal may place investment Subscriptions stated on dies before the annuitant, the annuity oblig- pressure on the payor that leads to unrea- Form 3541 0 0 ation continues as a claim against the payor’s sonable risks. (3) Sales through Dealers and Carriers, Street Vendors, estate, and the estate receives an estate tax • If the annuitant lives a long time, inflation and Counter Sales) 0 0 deduction in a like amount. The then-present will reduce the purchasing power of the annu- (4) Other Classes Mailed Through the USPS 135 135 value of the remaining annuity payments sets ity payments, but that will also make it eas- c. Total Paid and/or Requested the amount of the estate tax deduction for ier for the payor to make the payments. Circulation 23,516 29,636 that claim.27 Of course, if the payor dies still • The annuitant must rely on the payor’s d. Free Distribution by Mail 208 215 e. Free Distribution Outside owning the exchange property—no matter the unsecured promise to pay. the Mail 91 0 timing of death of the two parties, except • The annuitant is at risk that the payor’s f. Total Free Distribution 299 215 for exchange property classified for income creditors will take the property and leave the g. Total Distribution 23,815 29,851 h. Copies Not Distributed 834 1,179 tax purposes as “income in respect of a dece- payor without the resources from which to i. Total 24,649 31,030 dent”—the payor’s estate receives a new basis make the annuity payments. j. Percent Paid and/or Requested Circulation 99% 99% equal to that used in reporting the federal • The payor’s estate remains liable for the pri- estate tax.28 vate annuity obligation, even if the payor 16. This Statement of Ownership will be printed in the November 2004 issue of this publication. The generation-skipping transfer tax predeceases the annuitant. 17. Signature and Title of Editor, Publisher, Business (GSTT) applies not only to trusts but to • Incorrect valuation can lead to an unex- Manager, or Owner: (Samuel L. Lipsman, “trust equivalents.”29 Included among the pected gift or estate tax liability. Publisher. Date: 9/22/04. I certify that 30 all information furnished on this form is true and latter are “insurance and annuity contracts.” • If the annuitant is older, the required annu- complete. I understand that anyone who furnishes That fact notwithstanding, a GSTT on a pri- ity payments may be unaffordably high. false or misleading information on this form or who vate annuity is rare. If the annuity payments are not needed for omits material or information requested on the form • living expenses of the annuitant, the accu- may be subject to criminal sanctions (including Practical Considerations fines and imprisonment) and/or civil sanctions mulation of excess income will increase the (including multiple damages and civil penalties). Practical considerations in evaluating the use value of the annuitant’s estate, offsetting all

16 Los Angeles Lawyer November 2004 or part of an important advantage of the pri- 15 Estate of Fabric v. Commissioner, 83 T.C. 932 annuity payments should be $14,042. Therefore, if vate annuity, effectively converting the trans- (1984). the annuity payments are less, the excess value is a gift. 16 For example, if the annual annuity payments are set at action into an installment sale. Id. at 938. 17 Estate of McDowell v. Commissioner, T.C.M. 1986- $12,000 instead of $14,042, the gift is $14,542, cal- The most effective way to eliminate these 27 (1986). culated as ($14,042-$12,000) x 7.1213. The best way core risks is to combine a private annuity 18 Treas. Reg. §25.7520-3(b)3. to deal with this excess value is to switch the transac- with a foreign, nongrantor trust. This avoids 19 Burnet v. Logan, 283 U.S. 404 (1931); Lloyd v. tion from a a one-time gift of excess value to a full-value the risk that creditors of the annuitant will Commissioner, 33 B.T.A. 903 (1936); Estate of Bell v. annuity payment level, a portion of which would take the annuity income or that creditors of Commissioner, 60 TC 469 (1973). include annual gifts that may fall within the annual gift 20 Rev. Rul. 69-74, 1969-1 C.B. 43. tax exclusion. the payor will take the exchange property or 21 McInvale v. Commissioner, 936 F. 2d 833, 939 23 I.R.C. §2056. its proceeds. It eliminates—or substantially (5th Cir. 1991). 24 I.R.C. §2039(b). eliminates—income taxes of the payor (by 22 For example, assume the annuitant (a female) is 65 25 Rev. Rul. 72-81, 1972-1 C.B. 98. selecting a no-tax jurisdiction), thereby reduc- years old and transfers $100,000 to her child in 26 I.R.C. §167(a)(2). 27 ing any pressure to take unwarranted invest- exchange for a private annuity. The annuity factor is I.R.C. §2053(a)(3). found in IRS Publication 1457, Actuarial Values-Alpha 28 I.R.C. §1014. ment risks in satisfying the annuity obligation. Volume. It is 7.1213, assuming an interest rate of 29 I.R.C. §2611(a). It also avoids the problems that can arise if 10% under I.R.C. §7520 (Table S 10.10)). The annual 30 I.R.C. §2652(b). the payor dies before the annuitant by reduc- ing basis in the hands of the payor. The absence of a gift or estate tax eliminates the generation-skipping transfer tax. By selecting a jurisdiction that has repealed or length- ened the perpetuities period, an enormous multigenerational family capital resource becomes possible for even modest estates. ■

1 In 1991, the rate was 11%. In September 2004, it was 4.6%. 2 In Re Baker’s Estate, 345 Pa 308, 26 A. 2d 202 (1942) (private annuity agreement held enforceable even though the transferor-annuitant died prema- turely). 3 The present value of a private annuity is determined under the IRS tables for valuing limited interests. See Rev. Rul. 62-137, 1962-2 C.B. 28. These tables appear in Treas. Reg. §§20.2031-10(f) and 25.2512-9(f). 4 Rev. Rul. 62-136, 1962-2 C.B. 12. 5 Estate of Bell, 60 T.C. 469 (1973). 6 Priv. Ltr. Rul. 9009064 (Dec. 8, 1969). 7 All references to the Internal Revenue Code (I.R.C.) are to the Internal Revenue Code of 1986, as amended. 8 Stern v. Commissioner, 650 F. Supp 16 (D. Nev. 1986); see also Estate of Fabric v. Commissioner, 83 T.C. 932, 935 (1984). 9 Lazarus v. Commissioner, 58 TC 854 (1972), aff’d, 513 F. 2d 824, 829 (9th Cir 1975). 10 I.R.C. §2505(a). 11 I.R.C. §§2701 and 2702 are predicated on a gift with a retained interest by the donor. 12 I.R.C. §1014. 13 Basis in the hands of the children (as payor) is the total payments paid to the parent (the annuitant) to the date of sale, plus the then-present value of the remaining payments. Thus, if: 1) the annuitant’s life expectancy on the date of exchange is 12.5 years (a father’s life expectancy at age 75 under Treas. Reg. §1.72-9, Table V), 2) the annual installments are set at $14,042, and 3) the children immediately sell the property, the basis for computing gain is $175,525. To further illustrate this example, if the property is depreciable, such as an apartment building, and if payments were made to the annuitant for 10 years before the the children sell the property, the calculation of the children’s new basis would be: 1) Payments made to date of sale ($14,042 x 10): $140,420 2) Present value of remaining payments (12.5 x $14,042): $175,525 3) Total (1+2): $315,945 4) Less depreciation: ($40,000) 5) Children’s basis for computing gain on sale: $275,945 14 Rev. Rul. 80-80, 1980-1 C.B. 194.

Los Angeles Lawyer November 2004 17 Practice Tips BY FREDERICK F. MUMM

Proving Willfulness in Copyright Infringement Actions

WHEN A COPYRIGHT HOLDER IS ABLE TO PROVE that a properly reg- Moreover, the fact that the defendants previously had been sued by istered work has been infringed, the Copyright Act provides for the ASCAP demonstrated to the court that the defendants had “deliber- recovery of either statutory damages or actual damages, which are ately violated the copyright laws.”14 frequently minimal, hard to prove, or both.1 The Copyright Act also The holding that prior copyright lawsuits against the defendant gives the court discretion to award attorney’s fees to the prevailing support a finding of willfulness occurs time and again. In Flyte Tyme party in an action based on copyright infringement.2 This combina- Tunes v. Miszkiewicz,15 the plaintiffs’ musical compositions were pub- tion of statutory damages and the potential for recovery of attorney’s licly performed in the defendants’ establishment, the Bamboo Room. fees provides a potent weapon for plaintiffs in copyright actions. The defendants had refused to enter into a license agreement with Indeed, copyright holders need not suffer any actual damages nor ASCAP, despite previous suits brought against them by ASCAP. prove that the infringer made any money from the infringement to Noting that the defendants’ actions constituted “sneer[ing] in the face be entitled to a statutory recovery.3 If the copyrighted work is pub- of copyright owners and laws,” the court found that the previous law- lished, all that copyright holders need show is that they registered their suit and warnings by ASCAP were sufficient to establish that the works with the U.S. Copyright Office either before the infringement infringements were willful.16 or within three months of first publication.4 An eligible copyright The foregoing cases underscore another, equally important point: holder can elect between statutory and actual damages at any time Evidence of the defendant’s prior copyright violations may be admis- before final judgment is rendered.5 sible. A plaintiff should argue that this evidence is relevant to show Pursuant to amendments adopted in 1999 for actions filed on or that the defendant was aware of the copyright laws at the time of the after December 9, 1999, the recovery for statutory damages ranges alleged infringement. The admissibility of prior infringement actions from $750 to $30,000.6 However, if the plaintiff can prove that the is not guaranteed, however. The defendant will maintain that the evi- infringement was willful, the upper limit rises to $150,000 per dence is unduly prejudicial and should be excluded17—and the evi- infringement.7 The plaintiff in a copyright infringement action, there- dence presumably would be excluded unless the defendant argued that fore, can gain a tremendous amount of leverage if it can credibly argue it lacked familiarity with the copyright laws. The plaintiff’s counsel, that an infringement was willful. therefore, would be well advised to file a motion in limine prior to The statute itself does not define “willfulness.” The Ninth Circuit trial. An advance ruling will avoid the possible disruption to the flow has explained that to prove willfulness a plaintiff must demonstrate of the plaintiff’s case that might result from a fight over admissibil- that the defendant knew that its conduct infringed the plaintiff’s ity in the middle of the trial. copyright.8 Thus the plaintiff must be able to prove that the defen- A variation on the argument that the defendant has been previ- dant knew two things: 1) that the work was copyrighted, and 2) that ously sued appeared in A & M Records, Inc. v. Abdallah.18 In that the defendant’s activities constituted infringement.9 case the defendant provided blank cassettes to counterfeiters that had These elements are most easily satisfied when the infringer con- been “timed” to the length of a target recording.19 Under the arrange- tinues to infringe after receiving written notice (such as a cease and ment, the counterfeiter would submit a legitimate cassette of the desist letter) from the copyright owner.10 However, such written recording to the defendant, who would time the cassette, create notice is not necessary. Lacking evidence of actual notice, the courts blank cassettes of the appropriate length, and ship the legitimate cas- can look to a variety of factors to help determine whether the two ele- sette along with the requested number—typically thousands—of ments of the test have been met. timed, blank cassettes back to the counterfeiter. The counterfeiter One frequently invoked factor is the extent of a defendant’s famil- would then complete the process by making illegal copies of the iarity with the copyright laws. There are numerous cases holding that original cassette on the timed cassettes. the fact that the defendant has been sued in the past for copyright The evidence established that the defendant was aware that his infringement suggests that the defendant should have known better largest customer had been raided by the police for counterfeiting activ- this time around. For example, in Hideout Records and Distributors ities.20 Moreover the defendant’s business was raided on at least v. El Jay Dee, Inc.,11 the defendant nightclub performed music with- three occasions by police. Nonetheless, the defendant continued to out a license from ASCAP.12 Previously, ASCAP had successfully make and sell timed cassettes. The court found that the defendant was sued the nightclub and its owners on a similar claim. In this case, the liable for contributory infringement and that the infringement was will- nightclub and its owners contended that they refused to enter into a ful.21 The police raids played a role analogous to prior copyright lit- license agreement with ASCAP based on the advice of their counsel, igation in providing evidence that the defendant knew that its activ- who maintained that the ASCAP license violated antitrust laws. The ities violated the copyright laws. defendants argued that their reliance on counsel was reasonable and Clearly, submitting evidence of police raids on the defendant’s busi- that they acted in good faith. The district court flatly rejected the defendants’ contention. First, it held that an infringer is liable under the Frederick F. Mumm is a partner with Davis Wright Tremaine LLP in Los Angeles, copyright law whether or not it acted innocently and in good faith.13 where he specializes in intellectual property and media law litigation.

18 Los Angeles Lawyer November 2004 ness can be an extremely effective method of express notice of infringement. In N.A.S. ing the buckle after receiving notice of convincing the jury that the infringement Import Corporation v. Chenson Enterprises, infringement and even after the defendant was willful. Opinions such as those in Hideout Inc.,26 for example, the defendant infringed hired an attorney who advised the plaintiff Records, Flyte Tyme Tunes, and A & M a handbag buckle design. The court con- that the defendant would stop selling the Records can be used to support the admissi- cluded that the striking similarity of the plain- infringing handbags. Under these circum- bility of such evidence in an appropriate case. tiff’s and the defendant’s design, along with stances, the Second Circuit took the unusual Sometimes the nature of the defendant’s the defendant’s access to the plaintiff’s design, step of reversing a finding that the infringe- business itself supports an inference that it is provided strong evidence of willfulness. The ment was not willful. aware that its actions constitute copyright deciding factor, however, was that the defen- In Sega Enterprises v. MAPHIA,27 the infringement. In Fallaci v. New Gazette Liter- dant continued to sell handbags incorporat- court found willful contributory copyright ary Corporation,22 for instance, the defendant newspaper published a Russian language translation of an article appearing in the The Peer-to-Peer Conundrum Washington Post. The court held that “as a Recently, the Recording Industry Association of America (RIAA) initiated lawsuits against individuals who publisher of a copyrighted newspaper, the have downloaded copyrighted musical works through peer-to-peer services such as Morpheus, E-Donkey, defendant was or should have been aware that Grokster, Kazaa, and Imesh. The media have reported that the number of individuals sued by the RIAA for copy- its unauthorized republication of a Washing- right infringement is now approaching 5,000.1 None of these cases has resulted in a published decision indi- ton Post article constituted copyright infringe- cating whether these defendants will be held liable for willful infringement. Nonetheless, a consideration of ment.”23 Partly on this basis, the court found the factors invoked in more traditional willful infringement analysis—along with a review of the decision in UMG the infringement to be willful for purposes of Recordings, Inc. v. MP3.Com, Inc.,2 an early action by several recording companies against a peer-to-peer ser- enhanced statutory damages. vice—may provide a clue as to how the courts will treat the RIAA claims. The court used similar reasoning in MP3.Com created a service that ostensibly allowed individuals who had purchased CDs to store, listen, and Fitzgerald Publishing Company, Inc. v. Baylor customize the recordings contained on their CDs via any Internet connection.3 MP3.Com provided this service Publishing Company, Inc.24 Fitzgerald owned by purchasing tens of thousands of CDs, converting the CDs into MP3 format, and storing the MP3-formatted the copyright to a 16-volume series titled recordings on its computer servers. A subscriber, before being allowed access to the service, had to prove that Golden Legacy and entered into a written he or she had actually purchased a copy of the CD. This could be accomplished by inserting a copy of the pur- agreement with Baylor authorizing it to re- chased CD into a computer CD-drive for a few seconds (“Beam-it Service”) or by purchasing a copy of the CD print the series. The contract did not give from a cooperating online retailer (“Instant Listening Service”). Once having demonstrated ownership of the Baylor a right to change the copyright notice, CD, the subscriber could then listen to the recording via MP3.Com from anywhere in the world. which named Fitzgerald as the owner. After A number of recording companies sued for copyright infringement. MP3.Com contended that its service was Fitzgerald terminated the agreement when a fair use in that its service merely provided subscribers with the ability to effectively store and “space shift” Baylor failed to make certain required pay- their recordings without carrying around the physical discs they had purchased. The court rejected the fair use 4 ments, Baylor presented the written agreement defense and granted the plaintiffs’ summary judgment motion on liability. After a bench trial, the court issued findings on whether the infringement had been willful.5 The court found to arrange for a printer, which became a that defendant was aware of the copyright laws, referring to a book put out by the defendant that warned MP3 codefendant in the suit, to reprint the series. users not to post copyrighted songs on the Internet. The court also noted concerns raised by some of defen- Baylor also instructed the printer to delete dant’s engineers over potential liability for copyright infringement for the unauthorized copying for commer- Fitzgerald from the copyright notice and cial purposes of hundreds of thousands of songs. Finally, the court found the fair use justification to be little insert Baylor in the notice as the owner of the more than a sham: “Under either the ‘Beam It’ service or the ‘Instant Listening’ service users of My.MP3.Com copyright. did not, in fact, store their own CDs or the sounds transmitted from their own CDs with My.MP3.Com.”6 Based The court rejected the printer’s defense on those findings, the court concluded that the defendant had actual knowledge that it was infringing the plain- that it innocently relied on the written con- tiffs’ copyright. Despite the finding of willfulness, the court awarded statutory damages of only $25,000 per CD.7 tract between Fitzgerald and Baylor, noting The plaintiff always has the burden of proving willfulness. Thus, in the RIAA actions the question of will- that the contract was silent as to changing the fulness will have to be determined case by case and will depend on the knowledge of the individual defendant. copyright notice. In finding the printer liable Presumably, individuals sued by the RIAA will not previously have been subjected to an action for copyright infringe- for willful infringement, the court stated: ment. Similarly, in most cases, one would not expect these individuals to be involved in a business whose nature “[The printer] had a copy of the Baylor- would support an inference that they were aware of their infringement. Nonetheless, the publicity given to the Fitzgerald contract on March 22, which we issue in general and the RIAA lawsuits in particular makes it fairly likely that most individuals are aware that may assume it read, and—as an experienced the unauthorized downloading of copyrighted songs constitutes copyright infringement. publisher must have realized—that it con- In MP3.Com, evidence that company engineers had expressed concern about infringement supported a find- tained no authorization to change the copying of willfulness. Similarly, in the RIAA cases evidence that individual defendants had discussed the issue with right notice.”25 friends or associates could be decisive. Individuals who download copyrighted works through the peer-to-peer A plaintiff in a copyright action should services, therefore, face a fairly substantial risk of liability for willful infringement.—F.F.M. consider carefully the defendant’s involvement with copyrighted works as part of its 1 RIAA Sues 744 Music Pirates, N.Y. POST, Aug. 26, 2004. The Ninth Circuit recently held that peer-to-peer providers are not liable normal business activities. As the foregoing for vicarious copyright infringement. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., No 03-55901 (Aug. 19, 2004), avail- cases suggest, a finding of willfulness may be able at http://www.ca9.uscourts.gov/ca9/newopinions.nsf /E9CE41F2E90CC8D788256EF400822372/$file /0355894.pdf?openelement obtained as a result of the nature of the defen- 2 UMG Recordings, Inc. v. MP3.Com, Inc., 2000 WL 1262568 (S.D. N.Y 2000) (ruling on statutory damages after trial). dant’s business. 3 See UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349 (S.D. N.Y. 2000) (ruling on summary judgment as to liability). 4 The court found that none of the fair use factors favored a finding of fair use. UMG Recordings, 92 F. Supp. 2d at 351-52 (“In Piracy Cases sum, on any view, defendant’s ‘fair use’ defense is indefensible and must be denied as a matter of law.”). Not unexpectedly, piracy cases frequently 5 UMG Recordings, Inc., 2000 WL 1262568. 6 result in findings of willful infringement. Id. at *3, *5. 7 The court noted that given the large number of works infringed, even under the defendant’s calculation, the total award approx- These cases often include evidence of prior imated $118 million. involvement in copyright litigation and/or

Los Angeles Lawyer November 2004 19 infringement as a matter of law in ruling on spoken with the defendant’s “top dog” in Nonetheless, other submitted evidence a motion for summary judgment. In that Los Angeles and had offered to license the may provide inferences sufficient to fill in case, the defendant operated an electronic copyrighted material for several thousand the gap. For instance, in Spencer Promotions bulletin board containing downloadable ver- dollars. The top dog had refused the offer, and Inc. v. 5th Quarter Enterprises Inc.,34 the sions of SEGA copyrighted video games. The acknowledged that it “would be wrong” to defendant owner of a bar testified at a bench evidence showed that the defendant sold use the plaintiff’s tapes without permission. trial that he knew that he needed a license to “copiers” that allowed users to play games on Subsequently, the corporate defendant dis- show a televised pay-per-view fight in the SEGA consoles that had been downloaded tributed the plaintiff’s works to its subscribers. bar, having previously purchased similar from the bulletin board. The copiers also The court found these facts to be insuffi- licenses. He also testified that he did not allowed users to copy SEGA game cartridges cient to conclude that the infringement was know his bar was televising the fight and onto floppy discs. The bulletin board encour- willful “in the absence of any evidence that that he had instructed his employees to notify aged visitors to upload SEGA games and [the top dog himself] copied the [plaintiff’s callers that the fight would not be shown. The charged a “donation” fee for downloads. works] or knew of or contributed in any way court found this testimony not credible in The knowledge that users were uploading to their unlawful copying” by the defen- light of evidence that an illegal or unautho- and downloading SEGA games, the solicita- dant.31 Nimmer cites legislative history to rized descrambling, decoding, and/or record- tion of uploads, and the sale of the copiers support the same conclusion: ing device had to be used to intercept and was sufficient for the court to find that the Language in some of the legislative decode the signal and the defendant’s admis- contributory infringement was willful as a history supports the interpretation that sion that he knew he needed a license to matter of law. the knowledge underlying willfulness show the broadcast.35 This additional evi- Many of the factors that lead to a finding must in fact be possessed by the per- dence was deemed sufficient to support a of willfulness in ordinary copyright infringe- son responsible for the infringing con- finding of willfulness. ment cases support a similar finding in piracy duct. Under that interpretation, it The significance of actual notice in prov- cases. For example, the nature of the defen- would not suffice to impute knowl- ing willfulness may be questioned if the defendant’s business was invoked by the Second edge by an agency relationship with dant submits convincing evidence of a good Circuit to support an inference of knowl- another employee, who in fact was faith belief in the innocence of its conduct. In edge in a piracy action. In Yurman Design, notified of, or was otherwise aware this situation, even if the notice reaches the Inc. v. PAJ, Inc.,28 the court affirmed a jury of, the possible infringement.32 appropriate person, the defendant can avoid finding of willfulness based, in part, on the The legislative history cited by Nimmer is a finding of willfulness.36 For instance, in defendant’s experience in the relevant busi- contained in the 1965 Supplementary Frank Music Corp. v. Metro-Goldwyn-Mayer, ness—in this case, jewelry manufacturing. A Register’s Report on the General Revision Inc.,37 the defendant believed that its use of buyer from Zales had asked the defendant if of the U.S. Copyright Law. This report sum- the infringing work was permitted pursuant it could manufacture jewelry similar to some marized proposals for an overhaul of the to an ASCAP license, despite having received samples that the buyer said had been made by 1909 Copyright Act and commented on the notice of infringement from the plaintiff. an Italian manufacturer. The buyer did not suggested changes. An earlier Register’s Re- Under these circumstances the court consid- disclose to the defendant, however, that the port on the General Revision of the U.S. ered whether the defendant could deduct a Italian manufacturer had made the samples Copyright Law, published in 1961, had noted portion of its overhead from its revenues in based on Yurman’s designs at the request of that the 1909 Act contained a provision that determining its profits from the infringement the Zales buyer. After the defendant manu- allowed enhanced statutory damages when a under the 1909 Act. The plaintiff maintained factured and sent to Zales pieces similar to the defendant continued to infringe the plain- that the defendant had infringed its work samples, Zales returned the pieces, saying tiff’s work after either written notice of consciously and deliberately and should not they were similar to the plaintiff’s design. infringement or service of a complaint for have been allowed to deduct overhead. In The defendant thereupon engaged in a mas- infringement. The 1961 report pointed out rejecting this argument on appeal, the Ninth sive advertising campaign and sold the pieces that the obvious assumption underlying this Circuit affirmed the trial court’s determina- under its own label. provision—that receipt of actual notice was tion that the defendant’s good faith belief In its defense, the defendant claimed that, proof of willfulness—was not always true. supported a finding that the infringement although it admittedly copied the samples, it The report suggested that notice sent to, for was not willful.38 did not know that they were copyrighted or instance, a television station may arrive too A credible claim that an infringement was owned by Yurman. The court sustained the late for the broadcaster to prevent the broad- willful can greatly increase the value of a jury’s finding of willfulness after consider- cast. In such a situation, the infringement copyright case. Not only may the plaintiff seek ing evidence that the defendant had been in would not be willful despite the notice. an enhanced statutory damage award but a the jewelry business for 23 years, had attended The 1965 report referenced with approval finding of willfulness can also be a factor in major jewelry industry trade shows, knew this conclusion and provided a further exam- the court’s determination of whether to award of the plaintiff’s designs, and had failed to ple of when actual notice would not conclu- attorney’s fees.39 Although providing notice investigate any copyright violations after sively prove willfulness: “where notice is sent of infringement may be the easiest way to Zales had rejected the pieces.29 to a large retail store but fails to reach the demonstrate willfulness, the lack of notice is individual employees responsible for the not fatal to a plaintiff’s claim. In building a Artificial Entities infringement for some time.”33 Although this case for willful infringement, the plaintiff If the defendant is not a natural person, a find- discussion reflects a flaw in the 1909 Act, its should explore the defendant’s prior history ing of willfulness requires that the appropri- clear import is that, in order to find will- with copyright actions and any other expe- ate person in the organization have knowledge fulnes in cases involving an artificial entity, the rience it has had with copyright issues. of the infringement. One of the few cases to person who is aware of the owner’s copyright Knowledge of infringement by the defendant discuss this issue is Los Angeles News Service must also be involved in the infringement. The may be inferred from such factors as the v. Reuters Television International, Ltd.30 In holding in the Reuter’s case is consistent with nature of the defendant’s business or the fre- Reuters, the plaintiff testified that he had this interpretation. quency of the defendant’s appearance at trade

20 Los Angeles Lawyer November 2004 shows where it would have been exposed to 601 F. Supp. 1048 (D. Del. 1984). 27 Sega Enters. v. MAPHIA, 948 F. Supp. 923 (N.D. the plaintiff’s work. ■ 12 ASCAP is a performing rights organization that Cal. 1996). licenses third parties such as bars, nightclubs, and 28 Yurman Design, Inc. v. PAJ, Inc., 262 F. 3d 101 (2d radio stations, to perform nondramatic musical works, Cir. 2001). 1 Copyright Act of 1976 (as amended), 17 U.S.C. the rights to which are owned by the members of 29 Id. at 113. §504(c). ASCAP. See 17 U.S.C. §101. 30 Los Angeles News Serv. v. Reuters Television Int’l, 2 17 U.S.C. §505. 17 U.S.C. §412 has certain regis- 13 Hideout Records, 601 F. Supp. at 1052. Ltd., 924 F. Supp. 1275 (C.D. Cal. 1996), aff’d in tration requirements that must be met for the court to 14 Id. at 1054. part and rev’d in part on other grounds, 149 F. 3d 987 be authorized to award statutory damages or attorney’s 15 Flyte Tyme Tunes v. Miszkiewicz, 715 F. Supp. 919 (9th Cir. 1998). fees. See note 4, infra, and accompanying text. (E.D. Wis. 1989). 31 Los Angeles News Serv., 924 F. Supp. at 1280. 3 Columbia Pictures Television, Inc. v. Krypton Broad. 16 Id. at 922. See also Coleman v. Payne, 698 F. Supp. 32 4 MELVILLE B. & DAVID NIMMER, NIMMER ON COPY- of Birmingham, Inc., 259 F. 3d 1186, 1194 (9th Cir. 704, 706 (W.D. Mich. 1988) (two prior infringement RIGHT, Infringement—Remedies §14.04[B][3] at 14-57. 2001). actions against the defendant); Delman Fabrics Inc. v. 33 SUPPLEMENTARY REGISTER’S REPORT ON THE GENERAL 4 17 U.S.C. §412(2). If the infringement occurs before Holland Fabrics Inc., 228 U.S.P.Q. 596 (S.D. N.Y. REVISION OF THE U.S. COPYRIGHT LAW (1965), reprinted the work is published, 17 U.S.C. §412(1) applies, 1985) (13 prior copyright actions filed against the in 9 MELVILLE B. & DAVID NIMMER, NIMMER ON COPY- under which the registration must precede the infringe- defendants); Lauratex Textile Corp. v. Allton Knitting RIGHT, App. 15, 165. ment to entitle the holder to statutory damages and the Mills Inc., 519 F. Supp. 730, 733 (S.D. N.Y. 1981) 34 Spencer Promotions Inc. v. 5th Quarter Enters. Inc., potential to recover attorney’s fee. (finding that docket sheets showing that the defen- 38 U.S.P.Q. 2d 1893 (N.D. Cal. 1996). 5 17 U.S.C. §504(c)(1). dant had been sued in six other copyright cases sup- 35 Id. at 1896. 6 Id. (Digital Theft Deterrence and Copyright Damages ported finding of willfulness). 36 Danjaq LLC v. Sony Corp., 263 F. 3d 942 (9th Cir. Improvement Act of 1999, Pub. L. 106-160, §4, 113 17 See FED. R. EVID. R. 403. 2001); see also Frank Music Corp. v. Metro-Goldwyn- Stat. 1774.) 18 A & M Records, Inc. v. Abdallah, 948 F. Supp. 1449 Mayer, Inc., 772 F. 2d 505, 515 (9th Cir. 1985) (inter- 7 17 U.S.C. §504(c)(2). If the defendant proves that the (C.D. Cal. 1996). preting 1909 Act provision regarding recovery of infringement was innocent, the lower end of the statu- 19 In order to be marketable, a counterfeit tape must infringer’s profits and holding that evidence of a rea- tory range is reduced to $200. Id. be the same length as the legitimate tape. Otherwise, sonable belief that use was licensed supported finding 8 Peer Int’l Corp. v. Pausa Records, Inc., 909 F. 2d periods of silence would appear at the ends of both sides that infringement was not willful); Peer Int’l Corp. v. 1332, 1335 and n.3 (9th Cir. 1990). of the tape. Pausa Records, Inc., 909 F. 2d 1332, 1336 (9th Cir. 9 Contrast this formulation with the statutory requisites 20 A & M Records, 948 F. Supp. at 1455. 1990) (“To refute evidence of willful infringement, for the defendant to prove an infringement was inno- 21 Id. at 1457. [the defendant] must…establish its good faith belief in cent: “[W]here the infringer sustains the burden of 22 Fallaci v. New Gazette Literary Corp., 568 F. Supp. the innocence of its conduct…[and] that it was rea- proving, and the court finds, that such infringer was not 1172 (S.D. N.Y. 1983). sonable in holding such a belief.”). aware and had no reason to believe that his or her acts 23 Id. at 1173. 37 Frank Music Corp., 772 F. 2d 505. constituted an infringement….” 17 U.S.C. 504(c)(2). 24 Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co., 38 Id. at 515. 10 See, e.g., Pausa Records, 909 F. 2d at 1336; Jobete Inc., 807 F. 2d 1110 (2d Cir. 1986). 39 Historical Research v. Cabral, 80 F. 3d 377, 379 (9th Music Co. v. Media Broadcasting Corp., 713 F. Supp. 25 Id. at 1115. Cir. 1996); Cable/Home Communication Corp. v. 174, 179 (M.D. N.C. 1988). 26 N.A.S. Import Corp. v. Chenson Enters., Inc., 968 Network Prods., Inc., 902 F. 2d 829, 854 (11th Cir. 11 Hideout Records and Distribs. v. El Jay Dee, Inc., F. 2d 250 (2d Cir. 1992). 1990).

Los Angeles Lawyer November 2004 21 by Fernando Gaytan and Deborah A. Kelly UNAUTHORIZEDENTRY The proliferation of the unauthorized practice of law poses a risk to the legal profession as well as the public

ith the passage of the State Bar attorneys were disbarred based on evidence Act in 1927, codified at Busi- that each had misled the court into believing ness and Professions Code Sec- a nonattorney was a licensed attorney.3 W tions 6000 et seq., efforts to Business and Professions Code Section define the practice of law and, by derivation, 6125 states a seemingly clear prohibition: proscribe the unauthorized practice of law “No person shall practice law in California (UPL) began to gather steam. The act man- unless the person is an active member of the dated membership in, and the payment of State Bar.”4 But questions persist about what dues to, the State Bar of California for the constitutes the practice of law. One court privilege of practicing law in this state. A noted: flurry of cases followed in the early 1930s in As the term is generally understood, the which the State Bar held attorneys account- practice of law is the doing and per- able under the act for their actions involving forming services in a court of justice in nonattorneys. any manner depending therein In 1931, for example, the State Bar im- throughout its various stages and in posed a one-year suspension on an attorney conformity with the adopted rules of for violating the prohibition against fee shar- procedure. But in a larger sense it ing with nonattorneys. The attorney’s fees includes legal advice and counsel and were derived from the fees collected by per- the preparation of legal instruments sonal injury adjusters.1 Also in 1931, an and contracts by which legal rights attorney was suspended for having know- are secured although such matter may ingly and intentionally aided and abetted or may not be pending in court.5 UPL when he authorized a nonattorney to Other courts concur. Logic suggests that control case settlement negotiations and lit- an understanding of what constitutes the igation.2 A few years later, in 1937, two practice of law should lead to a corollary

Fernando Gaytan is an associate with Hadsell & Stormer. He wrote this article as a Skadden Fellow with the Los Angeles Center for Law & Justice. Deborah A. Kelly is a Los Angeles County deputy public defender. She wrote this article as staff attorney with the Los Angeles County Bar Association’s Domestic Violence Project. Gaytan and Kelly were members of Judge Aviva Bobb’s Unauthorized Practice of Law

HADI FARAHANI Task Force.

22 Los Angeles Lawyer November 2004 understanding of what constitutes UPL. tively creating an unauthorized partnership the nonattorney is authorized to practice law, However, the advent of real-time communi- with a nonattorney. The attorney was dis- causing detrimental reliance, and the union cations, the ease of interstate travel, increased barred for aiding and abetting the parale- between an attorney and a nonattorney may use of nonattorney office employees and ser- gal’s UPL and for fee splitting.9 inhibit the attorney’s autonomy in a way that vices, and other business pressures complicate In immigration cases, the practice of rely- causes harm to the client. the issue. ing on immigration consultants is particu- Loss of autonomy is of particular con- The activities of the legal profession con- larly rampant.10 Collaborations between cern to the courts because partnerships tinue to provide fertile ground for UPL by attorneys and nonattorneys in this context are between attorneys and nonattorneys in related those who are suspended, disbarred, or never characterized by flagrant violations of the fields can evolve into “feeder” businesses, licensed in the first place, and well-inten- Rules of Professional Conduct. Typical rules with each business dependent on the referral tioned but unwary licensed practitioners may violations arise from an attorney failing to of clients from the other.15 Under these cir- inadvertently become ensnared in violations perform due diligence, relying completely on cumstances, if a law practice depends upon and exposed to criminal charges, civil liabil- the nonattorney consultant’s work, and form- a feeder business to sustain itself, the duties ity, and State Bar discipline. Therefore, basic ing fee-splitting partnerships with nonattor- of loyalty and confidentiality owed to clients knowledge about what constitutes UPL in ney consultants. In Matter of Valinoti, an may be compromised by economic pressures California is crucial for every licensed attor- immigration attorney was suspended for 28 and other business circumstances.16 ney in the state. instances of professional misconduct in nine Throughout the statutory scheme for the The most common occurrences in which separate client matters. The attorney had practice of law, the protection of clients’ duly licensed attorneys run afoul of the rules handled over 2,720 immigration matters over rights is of paramount importance and pro- against aiding and abetting UPL by nonat- the course of a year and a half. However, in vides the underpinnings for both the prohi- torneys include: forming unauthorized part- achieving this high volume he failed to ade- bition against partnerships between nonat- nerships between attorneys and nonattor- quately evaluate each individual case, relying torneys and attorneys and the sanctions neys, misrepresenting that an unlicensed solely on the documents and forms prepared imposed on attorneys who aid and abet UPL. person is entitled to practice law, permitting by nonattorney immigration consultants. The For an attorney who has worked years to legal advice and counsel to be given by unli- result was irreparable harm to his clients, develop an expertise and build a career, relin- censed staff persons, and allowing unsuper- who faced deportation due to fraudulent asy- quishing that unique professional identity is vised preparation of legal instruments that lum claims.11 Indeed, UPL performed by difficult. Nevertheless, under Business and require legal expertise. nonattorney immigration consultants fre- Professions Code Section 6126(a), “[A]ny quently causes the irreversible loss of crucial person advertising or holding himself or her- Aiding and Abetting UPL legal rights.12 self out as practicing or entitled to practice law Law offices traditionally rely on the services The role of nonattorney consultants is or otherwise practicing law who is not an of paralegals and other nonattorney support not readily evident to the immigration court active member of the State Bar, or otherwise staff to achieve efficient operations. Undue because licensed attorneys make all appear- authorized pursuant to statute or court rule reliance on nonattorneys, however, can exact ances, giving the impression that the applicant to practice law in this state at the time of a high price when an attorney fails to exer- is adequately represented. And, all too com- doing so, is guilty of a misdemeanor.”17 cise adequate oversight. Although some attor- monly, the clients rarely learn of irregularities Furthermore, attorneys who are involuntar- neys have been found guilty of aiding and in their immigration documents until after ily enrolled as inactive or are suspended or dis- abetting UPL for failing to control or limit the their cases are already in jeopardy. Attorneys barred and who continue to identify them- activities of disbarred, suspended, or out-of- operating these schemes are actively aiding selves as authorized to practice law are state attorneys rendering advice in California, and abetting the UPL committed by unscrupu- committing a felony and may be sentenced to liability arises far more frequently from inad- lous immigration consultants and are expos- state prison.18 equate control or supervision of nonattorneys ing themselves to the full panoply of criminal There are certain narrow exceptions to the such as student law clerks, employees, and and civil sanctions. requirement that attorneys practicing in business collaborators.6 The potential for UPL frequently presents California must be active members of the Attorneys who aid and abet UPL com- itself when attorneys and nonattorneys work State Bar. These allow some flexibility for mitted by their nonattorney employees face together on matters embedded with legal out-of-state attorneys to lend legal assistance stiff penalties and disciplinary actions.7 Aiding questions and legal consequences. The prob- in limited circumstances. Out-of-state attor- and abetting occur when an attorney delegates lem posed by the intersection of legal and non- neys may even represent California clients too much authority to nonattorneys or fails legal work is especially perilous when attor- and serve as cocounsel with California attor- to supervise legal services performed by nonat- neys collaborate with other professionals to neys in some situations.19 Nonetheless, while torneys. Attorneys frequently take these mea- deliver services in related fields. The danger the multijurisdictional reality of modern legal sures as a means to expand their practices. A is underscored by the general prohibition practice often requires attorneys in different typical situation involving the aiding and against the formation of partnerships between states to collaborate, individual states have a abetting of UPL occurs when a nonattorney attorneys and nonattorneys. right and obligation to regulate the practice performs the bulk of the work on a client’s For example, a young attorney was dis- of law within their jurisdictions and protect case, with the attorney making all the neces- ciplined by the State Bar for forming a part- members of the public from UPL.20 Thus, sary court appearances. In Matter of Steele, nership with his father, a disbarred attor- the exceptions for otherwise nonauthorized for example, an attorney delegated substan- ney.13 At issue in the case was whether the attorneys are limited. tial control of his legal practice to a parale- association between the attorney and his For example, an attorney was found to gal, including all initial investigations and father was a partnership, in violation of Rule have aided and abetted the UPL of an unli- even control of his client trust accounts.8 3 of the Rules of Professional Ethics (the pre- censed person because he introduced his The attorney also created an arrangement in cursor to the California Rules of Professional California clients to a New York lawyer for which the paralegal and attorney each Conduct).14 Such an arrangement raises two advice regarding the laws of a foreign juris- received a portion of the firm’s profits, effec- concerns: It may lead the public to believe that diction in which the New York lawyer was

24 Los Angeles Lawyer November 2004 not admitted.21 (The New York lawyer could advise the California clients on New York law or on the law of any other jurisdiction in which the lawyer was admitted.) The California attorney was disciplined because he caused his clients to rely inappropriately on the advice of an attorney not licensed in California, and the California lawyer did so by drawing on the clients’ trust in the attorney-client relationship he had established with them.22 This illustrates how even the informal assistance of an attorney licensed in another state can evolve into UPL. Courts have taken a further step by finding that the mere promise by a suspended attorney to perform the duties of an attorney was a violation of the UPL statutes.23 The suspended attorney promised a client that he would file a complaint on her behalf. Although he received no compensation and submitted no documents to the court, by promising to perform duties normally rele- gated to an attorney he effectively held himself out as entitled to practice law, thus violating the prohibition against UPL.24 These cases are warnings to California attorneys working with out-of-state attorneys or forming working relationships with nonattorneys. Similar fact patterns are increasingly common. Also, attorneys find themselves under pressure to acquire specializations that often require collaborations with nonat- advice required a very close analysis of the ming from a client’s potentially detrimental torney professionals. Nevertheless, while federal tax code to determine whether the cor- reliance on advice that goes beyond matters working with nonattorneys may be a reality porate client qualified for an unusual method of minor importance. of modern legal practice, attorneys continue of calculating tax. By the accountant’s own In circumstances involving advice on for- to have a duty to remain alert to representa- admission, the complex legal question eign matters, UPL occurs when that advice is tions that may induce a client’s trust in some- required several days of research in a law provided to a California client from an attor- one who does not have the requisite author- library. This led the court to observe: ney not licensed in California,33 with some ity or skills to properly represent the client’s “Generally speaking, whenever, as incidental exceptions. This general rule does not, for interests. to another transaction or calling, a layman, example, preclude a foreign attorney from as part of his regular course of conduct, advising a client on the law of any foreign Advice and Counsel resolves legal questions for another at the jurisdiction in which he or she is admitted. While there is no bright-line definition in the latter’s request and for consideration, by giv- California Rules of Court permit foreign legal UPL statutes of the practice of law, courts ing him advice or by taking action for and on consultants to register with the State Bar and have stepped in to establish a definition with his behalf, he is practicing law if difficult or advise on foreign law so long as they do not broad parameters.25 Within those parameters doubtful legal questions are involved which, advise on California law, make appearances, is the rendering of advice and counsel on to safeguard the public, reasonably demand or prepare pleadings and instruments in matters requiring legal expertise in which a the application of a trained legal mind.”29 California.34 client’s rights may be affected significantly.26 Thus, while the services of a nonattor- This expansive view creates problems for ney may require basic knowledge of certain Preparation of Legal Instruments nonattorney professionals who find their laws, advice given to clients in delivering The general dearth of free and low-cost legal work enmeshed in complex transactions that these services cannot extend to matters involv- services in California has compelled many require at least a cursory understanding of ing complex legal issues.30 Conversely, advice low-income and working class residents to basic legal concepts.27 Nonattorney profes- on matters of slight importance to a case is turn to self-help services or nonattorney legal sionals and lay persons may find themselves not regarded as an attempt to practice law.31 document preparers to address their legal in trouble regarding UPL when they venture In determining whether UPL has occurred, needs.35 Typically these services purport to beyond the basic knowledge required to per- the extent to which advice given by an unli- assist persons representing themselves in a form their tasks and attempt to include legal censed person has crossed the boundary into variety of legal matters, including bankruptcy, advice within the scope of their services. the practice of law is analyzed within the family law, landlord-tenant disputes, and Courts have addressed some of the issues framework of the entire pattern of conduct.32 immigration.36 These services are often touted presented by the intersection between the Thus, activities that independently might not as a low-cost alternative to expensive repre- legal profession and other professions. An constitute UPL may, in the aggregate, lead to sentation by an attorney, and the market for accountant was found guilty of UPL for advis- advice that is more than merely incidental. Of them continues to grow.37 ing a client on a complicated tax issue.28 The obvious concern are the consequences stem- Some of the activities taken to assist pro

Los Angeles Lawyer November 2004 25 per litigants do not involve UPL. These ficiently certain to form the basis for a crim- ligent misrepresentation, and the intentional include providing access to written materials inal prosecution.44 For persons who have infliction of emotional distress. Depending on on legal procedures such as evictions or act- never been licensed in California and are the severity of the fraud charges, defendants ing as scriveners in the preparation of legal convicted of UPL, the statutes prescribe mis- may be liable for punitive and exemplary documents at the direction of a client.38 demeanor punishment of up to one year in a damages. An attorney working with a nonat- Courts also have found that work performed county jail, or a fine of up to $1,000, or torney assistant or partner also may face a by nonattorneys that is merely preparatory both.45 A stiffer penalty may be applied for separate malpractice claim for failure to prop- and under the direct supervision of an attor- subsequent convictions. erly handle a client’s case. ney generally does not violate the UPL For licensed attorneys and formerly An attorney who aids and abets a nonat- statutes.39 licensed attorneys (such as suspended or dis- torney in committing UPL may face claims The very limited scope of tasks nonattor- barred attorneys) the UPL statutes provide for based on unfair competition and false adver- neys can perform in connection with legal felony punishment with the possibility of a tising laws. Anyone not properly authorized documents includes filling out forms at the state prison sentence.46 UPL-related offenses to practice law who promulgates or distrib- behest of the client. By contrast, the prepa- also carry the risk of sanctions for contempt utes information that has the “capacity to ration of instruments that will affect the cli- of court. Each criminal penalty is cumulative deceive” consumers into believing he or she ent’s legal rights, in accord with decisions with other criminal penalties and any other is qualified to practice law is violating made by the document preparer on behalf of remedy provided by law.47 California’s false advertising law.53 the client, has long been held to fall within the Nonattorney UPL offenders also have The ban on false advertising applies to ambit of the practice of law.40 As the demand been charged with violations of Penal Code supervising attorneys who knowingly deceive for low-cost document preparation services Sections 484 and 487, under a theory of theft the public into thinking that a nonattorney continues to grow, there is an increased ten- by false pretenses. The Los Angeles County employee is properly authorized to handle a dency for these service providers to make District Attorney’s Office aggressively pros- legal matter or that a case is being handled decisions that have legal consequences. The ecutes UPL cases, with District Attorney Steve entirely by the attorney. Relief to clients average consumers of self-help or scrivener’s Cooley stating that his office is “committed harmed by the deception may include per- services are often unaware that the legal doc- to combating this form of fraud.” While not- manent injunctive relief, with both prohibitory ument assistant or paralegal they have hired ing that “UPL occurs in all legal fields,” and mandatory terms, and restitution for to fill out their forms has committed UPL in Cooley states that it is especially rampant in money or property taken as a result of false the course of helping them with their case.41 immigration matters, with unsuspecting immi- advertising.54 Frequently, the unfortunate consequence is the grants falling prey to fraud by unscrupulous Similarly, injunctive relief and restitution consumer’s loss of important rights or reme- consultants.48 can be awarded to a prevailing party bring- dies. In numerous cases—ranging from land- In the civil arena, attorneys who facilitate ing suit against a nonattorney or attorney lord-tenant matters to bankruptcy assis- or assist nonattorneys in UPL can be sued for guilty of UPL under California’s unfair com- tance—courts have found that the mere a variety of remedies, including a permanent petition law. Business and Professions Code selection of the types of forms a client should injunction, damages, and sanctions for con- Section 17200 was designed to prevent unfair prepare to address a particular legal issue tempt. Through civil actions, violators of the competition through deceptive business prac- constitutes UPL.42 UPL statutes can face penalties and damages tices, including false advertising. Absent a The California legislature has enacted reg- outlined in the regulatory schemes governing charge of false advertising, however, the broad ulatory schemes to govern a broad spectrum paralegals, legal document assistants, bank- forms of relief enumerated in Section 17200 of nonattorney legal services. Business and ruptcy petition preparers, and immigration can be sought if a business is found to have Professions Code Sections 6400 et seq. reg- consultants. In addition, defending against a violated any statutory scheme designed to ulate the role of legal document assistants, civil suit for UPL can have profound impli- protect the public. Criminal violations of the Sections 6450 et seq. regulate paralegals, and cations for an attorney’s future practice. UPL statutes55 also may result in liability Sections 22440 et seq. regulate immigration Violators of the Immigrant Consultant under Section 17200, because UPL can be consultants. Federal law regulates the activi- Act,49 including any attorney complicit in a characterized as an intentionally deceptive ties of bankruptcy petition preparers.43 violation, may be liable for civil penalties of business activity. These various statutory provisions restrict up to $100,000 per violation in addition to When civil actions are brought by public nonattorney legal service providers from prac- actual damages, treble damages, and rea- enforcement agencies, such as county prose- ticing law in the course of performing their sonable attorney’s fees and costs. Victims cutors or the State Attorney General’s Office, services. These statutes also require that may also seek broad injunctive relief against violators may be assessed civil penalties of up nonattorneys perform their duties under the the violators.50 to $2,500 per violation. The civil penalties are direct supervision of an attorney or register Those who violate statutes regulating cumulative and mandatory in an amount with the appropriate state agency and post a nonattorney legal document assistants, includ- determined by the court once a violation is bond in order to operate as scriveners at the ing complicit attorneys, may be liable for established. In all other civil actions, perma- client’s specific direction. damages, restitution, injunctive relief, and nent injunctive relief is available as well as attorney’s fees.51 The same relief is available restitution for any money or property taken Sanctions for Engaging in UPL for violations of statutes regulating parale- by means of the false and deceptive business Persons engaging in UPL, whether by inten- gals.52 In addition, an attorney who uses a practice. tion or inadvertence, violate California paralegal’s services may be liable for the para- The State Bar lacks jurisdiction over per- statutes and State Bar ethics rules and may legal’s negligence, misconduct, or other vio- sons never licensed to practice law or attor- face criminal sanctions, civil consequences, lation of the statutes governing the practice neys who have resigned or been disbarred. and State Bar discipline. of law. Nonetheless, in 2003 the State Bar received Though some complain that the term UPL also may expose nonattorneys and 262 UPL complaints regarding nonattorneys. “practice of law” remains imprecise and attorneys to common law tort actions, such Most of those cases were referred to the local unworkable, courts have found it to be suf- as fraud, intentional misrepresentation, neg- district attorney’s office for prosecution.

26 Los Angeles Lawyer November 2004 During this same period, 41 complaints were received regarding disbarred or resigned attor- “Mr. Truck” neys. Many of these also were referred to the local district attorney’s office. ACCIDENT Violators who come within the purview of INVESTIGATION and RECONSTRUCTION the State Bar discipline system are licensed attorneys and attorneys suspended from the ✔ Court Qualiﬁed Expert Witness Regarding practice of law. In 2003, the State Bar received Car vs Car, Car vs Bicycle, Truck vs Car Cases ✔ 246 UPL complaints regarding suspended Low Speed Accident Analysis ✔ attorneys. These complaints constituted 20 Trucking Industry Safety and Driver Training Issues ✔ percent of all complaints received via the Power Point Court Presentations State Bar intake line in 2003.56 William M. Jones 800 337 4994 P. O. Box 398 The State Bar adheres to a comprehensive 925 625 4994 Brentwood CA 94513-0398 Pager 510 840 4627 set of standards for disciplining attorneys [email protected] www.mrtruckar.com Fax 925 625 4995 that are published in the State Bar’s Rules of Procedure and Rules of Practice. Standard 2.6 provides for disbarment or suspension of an attorney for specified violations of the Quo Jure Corporation 1-800-843-0660 Business and Professions Code, with the pun- www.quojure.com ishment depending on the gravity of the harm. LAWYERS’ WRITING & RESEARCH [email protected] Standard 2.3 mandates suspension or disbarment if the offenses involve moral turpi- When you can’t do it yourself, but you still need a brief or tude, fraud, dishonesty, or concealment, with memo done—and done well, by experienced attorneys who the sanction depending upon the harm to are skilled writers—turn to Quo Jure Corporation. the victim, the degree to which the victim was misled, the magnitude of the act of mis- Quo Jure provides premium legal writing and research services conduct, and the degree to which it relates to to practicing attorneys. Our work has contributed to million- the attorney’s practice of law. It is worth not- dollar settlements and judgments. Oppositions to motions for summary judgment are our specialty. Call for a free analysis ing that when the State Bar’s disciplinary TM actions have been challenged in court, judges and estimate. The Winning Edge have not been reluctant to increase the severity of the administrative sanctions imposed by the State Bar.57 The credibility and effectiveness of our justice system depends on effective enforcement of UPL statutes, but there are mounting pres- Structured sures to modify existing restrictions on the Settlements practice of law. For example, in a nod to the interstate realities of modern law practice, the Bridging the • Product/General/Auto Liability • Workers’ Compensation California Supreme Court has approved new gap between Angel N. Viera, CSSC • Wrongful death rules, effective this month, regarding out-of- “demand” and (Bilingual) state lawyers practicing in California under • Medical Malpractice CA Lic. 0D20706 limited circumstances. Also, recognizing the “offer” to reach • Minors’ Compromise economic constraints that reduce accessibil- a resolution. • Employment/Discrimination, Other ity to legal services for those with limited resources, attorneys are now able to unbun- BRIDGE SETTLEMENT INSURANCE AGENCY dle legal services in an effort to compete with Call Toll Free 1-877-5-SETTLE • www.StructuredSettlements.com do-it-yourself clinics. Efforts to regulate a profession that requires consistency and ﬂex- ibility reflect the evolving demands on lawyers. All licensed practitioners should be aware of what constitutes UPL to avoid inadvertent violations and to preserve the rigorous standards of the legal profession. Awareness pro- tects the attorney, the consumer, and—perhaps most important of all—the integrity of a system that provides access to justice. One court noted that “[t]he right to practice law not only presupposes in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust.”58 It behooves every licensed prac-

Los Angeles Lawyer November 2004 27 titioner to adhere to these ideals and guard 7 Ridley v. State Bar of Cal., 6 Cal. 3d 551 (1972) (attor- 17 BUS. & PROF. CODE §6126(a). 18 against UPL in all its forms. ■ ney disbarred for misconduct, including UPL by BUS. & PROF. CODE §6126(b). employee left in charge of attorney’s office during 19 Birbrower, Montalbano, Condon & Frank, P.C. v. attorney’s absence); In the Matter of Steele, 3 Cal. Superior Court, 17 Cal. 4th 119, 129 (1998). 1 Shaw v. State Bar of Cal., 212 Cal. 5 (1931). State Bar Ct. Rptr. 708 (1997) (State Bar opinion; dis- 20 State Bar of Cal. v. Superior Court, 202 Cal. 323, 2 Smallberg v. State Bar of Cal., 212 Cal. 113 (1931). barment for failure to supervise and for fee splitting). 331 (1929); In re McKenna, 16 Cal. 2d 610, 611 3 Dudney v. State Bar of Cal., 8 Cal. 2d 555 (1937). 8 Steele, 3 Cal. State Bar Ct. Rptr. 708. (1940), cited in Baron v. City of Los Angeles, 2 Cal. 4 BUS. & PROF. CODE §6125. 9 Id. 3d 535, 540 (1970) (State Bar Act preempts the regu- 5 People v. Merchants Protective Corp, 189 Cal. 531, 10 Juliet Kaz, Legal Document Services: Dangerous lation of attorneys only insofar as the regulation 535 (1922); see also Baron v. City of Los Angeles, 2 Alternatives to Attorneys?, 2 J. LEGAL ADVOC. & PRAC. involves the practice of law within the meaning of the Cal. 3d 535, 542 (1970); Bluestein v. City of Los 122 (2000); In the Matter of Valinoti, 4 Cal. State Bar act.). Angeles, 13 Cal. 3d 162, 173-74 (1970); People v. Ct. Rptr. 498 (2002). 21 Bluestein v. City of Los Angeles, 13 Cal. 3d 162 Landlords Prof’l Servs., 215 Cal. App. 3d 1599, 1604- 11 Valinoti, 4 Cal. State Bar Ct. Rptr. 498. (1970). 08 (1989). 12 Id. 22 Id. at 171. 6 Russell Donaldson, Disciplinary Action against 13 Crawford v. State Bar, 54 Cal. 2d 659 (1960). 23 Farnham v. State Bar of Cal., 17 Cal. 3d 605 (1976). Attorney for Aiding or Assisting Another Person in 14 Id. at 665. 24 Id. at 612. Unauthorized Practice of Law, 41 A.L.R. 4th 361 15 Id. at 665-66. 25 Agran v. Shapiro, 127 Cal. App. 2d Supp. 807 (1985). 16 Id. at 666. (1954); People v. Merchants Protective Corp, 189 Cal. 531 (1922); Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). 26 Merchants Protective Corp, 189 Cal. 531; Birbower, 17 Cal. 4th 119 (New York ﬁrm committed UPL by giving advice pertaining to California law and perform- Business Resolution’s Best ing other legal services for a California company.). 27 Agran, 127 Cal. App. 2d Supp. 807. 28 Id. at 809. 29 Id. at 818 (emphasis added). 30 Id. at 818. 31 In re McKelvey, 82 Cal App. 426, 429 (1927). 32 Crawford v. State Bar, 54 Cal. 2d 659, 669 (1960). 33 Bluestein v. City of Los Angeles, 13 Cal. 3d 162, 173- 74 (1970). 34 Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119, 130 (1998). 35 CALIFORNIA COMMISSION ON ACCESS TO JUSTICE, THE PATH TO EQUAL JUSTICE 3-6 (Oct. 2002). 36 People v. Landlords Prof’l Servs., 215 Cal. App. 3d RICHARD M. HON. ARNOLD HON. EDWARD 1599 (1989). COLEMAN, ESQ. H. GOLD Y. KAKITA 37 P.J. Huffstutter, Automat of Legal Services on the Defensive, L.A. TIMES, Feb. 15, 2004. 38 Landlords Prof’l Servs., 215 Cal. App. 3d 1599. 39 In re Carlos, 227 B.R. 535 (Bankr. C.D. Cal. 1998). 40 People v. Merchants Protective Corp, 189 Cal. 531 (1922); Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). 41 Kaz, supra note 10, at 125. 42 In re Anderson, 79 B.R. 482 (1987) (Client assistance by a paralegal required legal judgment generally beyond the capacity of a nonattorney.). See also Landlords Prof’l Servs., 215 Cal. App. 3d 1599 (Self-help service HON. DION HON. HARVEY HON. ERIC E. committed UPL by generating individualized forms G. MORROW A. SCHNEIDER YOUNGER and advising some clients on which forms to prepare.); People v. Fremont Life Ins. Co., 104 Cal. App. 4th 508 (Preparation of wills, trusts, and other legal instruments ARC's Complex Business Litigation Panel Also Includes: by annuity sales representatives constituted UPL.). 43 11 U.S.C. §110. Hon. Herbert L. Ashby Hon. Burton S. Katz Hon. Bruce J. Sottile 44 People v. Ring, 26 Cal. App. 2d Supp. 768 (1937). Hon. Michael Berg Hon. Campbell Lucas Hon. Leonard S. Wolf 45 BUS. & PROF. CODE §6126(a). Hon. William E. Burby Hon. Irwin J. Nebron Hon. Arleigh Maddox Woods 46 BUS. & PROF. CODE §6126(b). 47 BUS. & PROF. CODE §6126. Hon. Eli Chernow Hon. Jack Newman 48 LOS ANGELES COUNTY OFFICE OF DISTRICT ATTORNEY, Hon. Robert Feinerman Hon. Robert W. Parkin UNAUTHORIZED PRACTICE OF LAW MANUAL FOR Mark Fleischer, Esq. Hon. Robert Roberson, Jr. PROSECUTORS 2 (Feb. 2004). 49 Hon. Marilyn L. Hoffman Hon. Irving Shimer BUS. & PROF. CODE §§22440-22448. 50 BUS. & PROF. CODE §22445. 51 BUS. & PROF. CODE §§6400 et seq. 52 BUS. & PROF. CODE §6452(b). 53 BUS. & PROF. CODE §17500. 310-312-6002 54 Id. 55 BUS. & PROF. CODE §§6125, 6126. 800-347-4512 56 Telephone interview with Djinna Gochis, General Counsel, State Bar of California (June 15, 2004). www.arc4adr.com 57 In re Morse, 11 Cal. 4th 184 (1995). 58 Amy Newman, President McGregor v. State Bar, 24 Cal. 2d 283, 288 (1944) (citing Townsend v. State Bar, 210 Cal. 362, 364 (1930)).

28 Los Angeles Lawyer November 2004 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 31.

by JUDITH ILENE BLOOM

COMPROMISES Although Section 998 is designed to encourage settlements, certain court decisions have actually served to discourage them

CASES SETTLE IN A VARIETY OF WAYS. Some cases settle after a few telephone calls between opposing counsel. Others need a settlement officer to pound the table and drag a settlement out of the parties. It is not uncommon for cases to settle when a courtroom suddenly becomes available for trial. And in some cases, parties rely on the carrot or the stick (or both) contained in Code of Civil Procedure Section 998 to develop a settlement. Under Section 998, a party can offer to have judgment entered under specific terms and conditions. If the adverse party accepts, then the case is settled, and judgment is entered with no requirement for court approval. If the adverse party does not accept, goes to trial, and is victorious but wins less than the proposed settlement, the party is not awarded postoffer costs even though the party is the prevailing party—and the party making the offer may recover postoffer costs. The benefits and drawbacks of the Section 998 process are seemingly straight- forward, but the risks for both parties are more dangerous than they may appear at first glance. Indeed, Section 998 is not just a way to settle a case. It is a trap for the merely careful.1 Section 998 contains gaps and ambiguities. Courts have exercised considerable discretion regarding some aspects of Section 998 and in doing so have rewritten the statute. They also have declined to act in other areas implicated by the statute. The effect of the judicial interpretations is to discourage settlements, even though Section 998 is designed to encourage them. The conventional wisdom is that either party has a motive to make a Section 998 offer or demand because of the possibility of shifting postoffer costs. That seems a weak reason

Judith Ilene Bloom is a member of Clark & Trevithick in Los Angeles, where she specializes in commercial and bankruptcy litigation. She represented National Bank of California in Premium Commercial Services Corporation v. National Bank of California but was not involved with drafting, reviewing, or signing the Section 998 offer in that case.

Los Angeles Lawyer November 2004 29 in most cases, however, because recoverable faith bargaining. A settlement pursuant to error in a Section 998 offer or acceptance is costs usually are not economically signifi- Section 998 is instead an offer (if made by the a clerical one—the type of error for which cant. Unless there are numerous postoffer defendant) to be the losing party.5 Thus the Section 473 does provide a remedy. In Za- depositions or extensive use of high-tech courts are not encouraged to use their dis- mora v. Clayborn Contracting Group, Inc.,17 computer presentations at trial, it is difficult cretion to enforce the actual bargain the par- the plaintiff sent a Section 998 offer dictated to incur a big bill for costs. A plaintiff whose ties intended but may have misstated. by counsel and then mistyped by an assistant offer is rejected and who does better at trial The most dangerous risk to a defendant to provide for a judgment “taken against may also, in the court’s discretion, recover who wants to settle using Section 998 is fail- himself and for defendant Clayborn” rather expert witness fees, which are ordinarily not ing to prepare an offer that addresses liabil- than for a judgment in the plaintiff’s favor. a recoverable cost.2 But since expert witness ity for additional costs. Defendants who use (Counsel in Premium had not reviewed the fees are not automatically awarded, it is hard the standard form and offer to allow judg- erroneous written offer before serving it and to rely on the possibility of recovering those ment to be entered for a stated sum accept did not realize the error until after the defen- fees when analyzing whether or not to make that they are the losing party and liable not dant had filed its notice of acceptance.) or accept a settlement offer. only for costs but also for attorney’s fees if the Plaintiff Zamora then moved to set aside the Of course, a settlement by definition leads complaint is based on a statute or contract judgment. The court first dispelled the theory to savings because it renders unnecessary the with an attorney’s fees clause.6 A defendant that a 998-based judgment is never reviewable expenditure of considerable costs, including trying to settle a case arising from a contract under Section 473, citing Palace Hardware attorney’s fees. However, this savings is with an attorney’s fees clause must make sure Company v. Smith18 and other cases.19 The included in the calculation of a reasonable set- the offered sum includes all damages, claims, court then proceeded to determine if the trial tlement offer and is not unique to the use of costs, expenses, fees, and interest. Further, the court had properly exercised its discretion a Section 998 procedure. Although Section offer should state that “each party shall bear by granting relief under Section 473. The 998 does not offer a big tasty carrot or a big its own costs and attorney fees and expenses,” standard was whether “‘a reasonably prudent sharp stick, most attorneys ascribe an unwar- or it should specifically limit attorney’s fees person under the same or similar circum- ranted importance to making or receiving a or costs.7 stances’ might have made the same error.’”20 Section 998 offer, even though the often The typographical error, substituting insignificant benefits of a Section 998 offer can Limited Relief for Mistakes “against” for “in favor of,” was the kind of be outweighed by its serious risks. The risk that a defendant offering to settle will error anyone could make, the court reasoned, Unlike most other pleadings or discov- find itself liable for the amount of the offer which was distinguishable from the errors ery, for example, there is little opportunity to plus costs and attorney’s fees is by now so well in Pazderka and Premium. The supreme correct an error in a Section 998 offer or documented that no one can be ignorant of court, however, carefully avoided stating that acceptance. Code of Civil Procedure Section it. Rappenecker v. Sea-Land Services Inc.8 Pazderka or Premium had been properly 473 can be used to ameliorate the devastat- established the liability of a settling defendant decided.21 Further, the court emphasized that ing effect of a default judgment, and provi- for court costs when the terms of the Section the policy favoring settlements is not impaired sions exist to correct erroneous discovery 998 offer were silent as to those costs. Lanyi by a rule that a settlement on terms not responses,3 but there is no established way to v. Goldblum9 alerted defendants offering to authorized by the parties is not a settlement correct an error in a Section 998 offer or settle for a stated sum that they will be liable that public policy requires to be enforced.22 acceptance. An offer that is made too early or for costs and attorney’s fees as well. Ever Of course, these cases do not completely that is too low may, even if it is an accurate since Lanyi, which was decided 18 years ago, answer the question of how to resolve errors forecast of the result at trial, not give the courts have held, more often than not, that in a Section 998 offer or acceptance. An error party making the offer the benefits of Section trial courts lacked authority even to consider that easily meets anyone’s definition of a typo 998. It may even cause the parties to incur a motion for relief under Code of Civil can probably be relieved under Section 473. additional costs to litigate the underlying Procedure Section 473 from a poorly drafted This might include mistakenly adding a digit good faith of the offer. Section 998 offer that contained inadvertent to the actual amount to be paid in settle- Clearly, numerous opportunities abound flaws. Pazderka v. Caballeros Dimas Alang, ment of a case—for example, changing for parties using Section 998 to err and lose Inc.10 held that a motion for reconsidera- $67,150 to an unintended $671,150. What money. Moreover, courts have increased the tion11 as well as a motion for relief12 are if the address of the recipient of the offer or risks of making Section 998 offers. beyond the trial court’s discretion. The plainly the acceptance is mistyped, and thus the offer The offering party must calculate an offer stated rationale of the court was the protec- or acceptance is not timely received? What if that will create an incentive to settle. For a tion of 998-type settlements13 and the avoid- the offer or acceptance is miscalendared or defendant, the offer must be high enough to ance of “spawn[ing] separate, time-consum- misfiled? What if a word is left out of an include all the elements of a plaintiff’s ing litigation.”14 offer so that it reads “$300,000 against defen- expected recovery so that the cost-shifting Similarly, in Premium Commercial Services dant and attorney fees and costs,” with the mechanism will actually work.4 This means Corporation v. National Bank of California,15 word “no” inadvertently omitted before the that, unlike calculating a settlement offer for an appellate court reversed the trial court’s words “attorney fees and costs”? What if a settlement conference or mediation, the granting of relief when the Section 998 offer the entire phrase “no attorney fees and costs” calculation must include estimated preoffer inadvertently omitted the “each party to bear is omitted? What is the distinction between costs (including attorney’s fees if applicable) its own costs and attorney fees” limitation a clerical typo and an attorney’s failure to and interest. customarily used by defense counsel. This review documents before they are served? Section 998 does not refer to its proce- was not deemed the type of mistake for which The Zamora court hinted at this issue but did dures as an offer of settlement but instead as Section 473 provides relief from a Section 998 not resolve it, and the similar circumstances an “offer…to allow judgment to be taken….” offer.16 of Premium and Zamora led to dramatically The statute does not recognize that a Section The California Supreme Court, however, different results. 998 settlement is unlike any other settlement, has acknowledged that a motion for relief The effect of ordinary contract law also is which is a product of compromise and good under Section 473 is appropriate when the still unclear. The cases dutifully recite the

30 Los Angeles Lawyer November 2004 MCLE Answer Sheet #131 MCLE Test No. 131 BAD COMPROMISES

The Los Angeles County Bar Association certiﬁes that this activity has been approved for Minimum Name Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

1. For a settlement to be enforceable under Code of Civil 11. The California Supreme Court in Zamora v. Clayborn Address Procedure Section 998, it must be approved by the court. Contracting Group, Inc. stated that two court of appeal City True. decisions—Premium Commercial Services Corporation State/Zip False. v. National Bank of California and Pazderka v. Caballeros E-mail 2. If a defendant serves a proper Section 998 offer that Dimas Alang, Inc.—were wrongfully decided. the plaintiff rejects and at trial the plaintiff is awarded True. Phone less than the amount of the offer, the plaintiff does not False. State Bar # recover the costs that it otherwise would have recovered 12. Under Zamora, the supreme court established that as the prevailing party, and the defendant instead is an attorney can never obtain relief under Section 473 if INSTRUCTIONS FOR OBTAINING MCLE CREDITS awarded all its costs. the attorney delegates the drafting of a Section 998 1. Study the MCLE article in this issue. True. offer to a nonattorney staff member and does not review 2. Answer the test questions opposite by marking False. the work before it is served. the appropriate boxes below. Each question 3. A defendant in a civil case whose Section 998 offer was True. has only one answer. Photocopies of this rejected may be awarded its expert witness fees, which False. answer sheet may be submitted; however, this are ordinarily not recoverable, if the plaintiff recovers less 13. In Zamora, evidence was admitted to show that the form should not be enlarged or reduced. than the amount offered. offeree knew that the Section 998 offer was a mistake. 3. Mail the answer sheet and the $15 testing fee True. True. ($20 for non-LACBA members) to: False. False. Los Angeles Lawyer 4. Pursuant to the language of Section 998, a party 14. One way for a defendant to avoid making an error in MCLE Test making an offer is offering to allow judgment to be a Section 998 offer that renders the defendant liable for P.O. Box 55020 entered and is not offering to compromise. costs or attorney’s fees is to frame the Section 998 offer Los Angeles, CA 90055 True. as an offer to accept a dismissal. Make checks payable to Los Angeles Lawyer. False. True. 4. Within six weeks, Los Angeles Lawyer will 5. A defendant making a Section 998 offer must offer to False. return your test with the correct answers, a allow judgment to be entered against it and is not per- 15. If a case is dismissed, no attorney’s fees may be rationale for the correct answers, and a certificate verifying the MCLE credit you earned mitted to offer to accept a dismissal. awarded under Civil Code Section 1717. through this self-assessment activity. True. True. 5. For future reference, please retain the MCLE False. False. test materials returned to you. 6. A defendant making an offer for a judgment in a 16. Courts have discretion to determine if a Section 998 stated amount to be entered against it under Section 998 offer was made in good faith when awarding any costs ANSWERS is offering to be the losing party. under Code of Civil Procedure Section 1033.5 to a party Mark your answers to the test by checking the True. whose Section 998 offer was rejected. appropriate boxes below. Each question has only False. True. one answer. 7. If counsel makes an error in a Section 998 offer that False. omits any limitation on a settling party’s liability for 17. The court of appeal in Elrod v. Oregon Cummins 1. ■ True ■ False costs or attorney’s fees, and the error was due to coun- Diesel, Inc. established a two-part test to determine the 2. ■ True ■ False sel’s lack of awareness of the case law addressing this good faith of a Section 998 settlement offer. 3. ■ True ■ False issue, courts generally will not grant relief under Code True. ■ ■ of Civil Procedure Section 473. False. 4. True False True. 18. It is well-established that a defendant who makes 5. ■ True ■ False False. a very low Section 998 offer early in the case has made 6. ■ True ■ False 8. Section 473 ordinarily does not provide relief for cler- the offer in bad faith and is not entitled to the benefits 7. ■ True ■ False ical errors made by attorneys or their staffs in preparing of Section 998. ■ ■ Section 998 offers. True. 8. True False True. False. 9. ■ True ■ False False. 19. A defendant who seeks to make an early and low 10. ■ True ■ False 9. The standard applied by a court hearing a motion for Section 998 offer can show good faith by providing a let- 11. ■ True ■ False relief under Section 473 for a drafting error in a Section ter to plaintiff’s counsel explaining how the facts of the ■ ■ 998 offer is whether an attorney skilled in litigation case—including facts previously unknown to the plain- 12. True False would have made that same error. tiff—and applicable law support a conclusion that the 13. ■ True ■ False True. case against the defendant has no merit. 14. ■ True ■ False False. True. 15. ■ True ■ False 10. In making a motion for relief under Section 473 for False. 16. ■ True ■ False an error in a Section 998 offer, attorneys can and should 20. The two-part test for determining the good faith of a check published case law for well-established and well- Section 998 offer is 1) whether the offer is a reasonable 17. ■ True ■ False defined standards to determine if the error for which they prediction of the results at trial (reduced to the present 18. ■ True ■ False are seeking relief is the type of error for which relief value) and 2) whether the party receiving the offer rea- 19. ■ True ■ False may be granted. sonably knew or should have known the underlying facts. 20. ■ True ■ False True. True. False. False.

Los Angeles Lawyer November 2004 31 principle that the rules of contract interpre- in good faith, although that language appears award. The court stated: tation apply to a Section 998 offer.23 However, nowhere in the statute. This is an area in [A] good faith requirement must be there is no opportunity for the court to use which the courts have rewritten the statute in read into section 998. In other words, such rules.24 The rules of contract interpre- a way that can only discourage settlements, the pretrial offer of settlement required tation will be applied only if they “neither especially early settlements.32 under section 998 must be realistically conflict with the statute nor defeat its pur- The good faith requirement was first dis- reasonable under the circumstances of pose.”25 In Zamora, the court gave a clear sig- cussed in 1980 in Pineda v. Los Angeles Turf the particular case. Normally, there- nal that evidence regarding the intent of the Club, Inc.,33 in which the family of a jockey fore, a token or nominal offer will not parties, as known to each other, remains rel- killed in a race sued the race track and the satisfy this good faith requirement, evant. The court described the evidence that manufacturer of the helmet he wore. A month particularly where, as here, there is showed that Clayborn knew the Section 998 before trial the manufacturer offered to set- no cross-complaint.38 offer was a mistake but tried to take unfair tle for $2,500 pursuant to Section 998. The After making its pronouncement, the court A defendant should try to frame a Section 998 offer as an offer to accept a dismissal. This prevents the imposition of costs and attorney’s fees since the plaintiff will not be the prevailing party. advantage of it.26 Thus there was sufficient offer was rejected, and at trial judgment was substituted its judgment for the trial court’s evidence of mistake.27 entered in favor of the manufacturer. The and concluded that there was no good faith Even with the consolation provided by victorious defendant filed a motion for expert accompanying the settlement offer. The lan- this opinion, there remains a risk that the witness fees, but the motion was denied. On guage and holding in Wear are what later error at issue will turn out to be the type of appeal the court held that the trial court cases have cited and recited to discuss the error for which Section 473 relief is unavail- “had ample reason” to conclude that the good faith requirement.39 Post-Wear appel- able. That will only be determined after a offer was not reasonable, because the defen- late courts, however, have not shown as much timely motion is made and decided. In deter- dant “had no expectation that its offer would willingness to interfere with a good faith mining how it will rule on a motion for be accepted.”34 Based on that ground and determination by a lower court. Section 473 relief, a court necessarily will nothing else, the appellate court reasoned In Culbertson v. R. D. Werner Co., Inc.,40 have to consider the subjective intent of the “that the sole purpose of the offer was to the court made obeisance to Wear and Pineda parties—including, perhaps, their subjective make Defendant eligible for the recovery of but explained why a plaintiff who rejected a analysis of the settlement value of the case— large expert witness fees at no real risk.”35 low settlement offer and lost at trial should and other inadmissible settlement communi- The court declined to find that the offer was not be able to complain about paying costs, cations.28 not in good faith but did conclude it was including expert witness fees: Since there is no reason to be confident not “realistic” and affirmed the denial of Reduced to its simplest terms, the that Section 473 will be available to grant expert witness fees.36 The court did not essence of plaintiff’s argument is that relief for ministerial errors, the best course is explain its basis for determining that an offer the filing of a complaint for damages, to take every possible precaution to prevent must meet a test of good faith or “realism” no matter how unmeritorious the claim them. Counsel should read a Section 998 or that the party offering to settle had to might be, imposes upon a defendant, offer or acceptance before it is served, and take a demonstrable risk by doing so. no matter how meritorious its defense then read it again. Next, counsel should have The following year, however, in Wear v. may be, an obligation to reward the someone else in the office read it—and then Calderon,37 the court of appeal formally and plaintiff by making an offer of settle- have another someone else read it! Finally, a specifically imposed a good faith requirement which would liquidate any out- defendant should try to frame a Section 998 ment for Section 998 offers—a requirement standing liens, pay plaintiff’s attor- settlement offer as an offer to accept a dis- that the legislature had not included in the ney’s fees and costs and yield some missal.29 This prevents the imposition of costs statute. In Wear, which arose from a car acci- significant sum to the plaintiff, or lose and attorney’s fees since the plaintiff will not dent, one defendant offered to settle for $1 the benefits of section 998. That, of be the prevailing party.30 pursuant to Section 998, but the plaintiff course, is diametrically opposed to the rejected the offer. The plaintiff recovered clear language and intent of section The Good Faith Requirement from the other defendants but was awarded 998. Such a strained interpretation of Before awarding discretionary costs31 to a nothing against the defendant who had made the statute and the cases would result party entitled to request them under Section the Section 998 offer. The defendant sought in an increase of spurious lawsuits and 998, the court has authority to determine and received an award of her expert witness a reduction in the number of settle- whether or not a Section 998 offer was made fees, and the appellate court reversed the ments.41

32 Los Angeles Lawyer November 2004 How true. The only effect of this grafted series of demand letters written by the suc- the two-part test of Elrod. The court found good faith element is to burden the trial court cessful defendant were admitted to show that that the law firm had met the first part of the with a challenge to an award of expert wit- the plaintiff knew why the defendant believed test because $5,000 was within the range of ness fees (and attorney’s fees for cases filed in there was no liability, and thus the plaintiff expected recovery due to defects in the plead- Riverside County) or interest in a personal should not have been surprised by the non- ing, but the court also found that there was injury case, when the whole objective of the suit. The trial court however, failed to follow no evidence regarding the second part of the Section 998 procedure is to settle cases and the two-part test and did not decide to award test, and thus the law firm had failed to meet avoid litigation. attorney’s fees under Code of Civil Procedure its burden. The court explained that, for defendants Section 1021.1.49 The case was remanded faced with what they perceive to be a merit- for the trial court to exercise its discretion— Incorrect Analysis less action, making a low offer is consistent presumably to award the attorney’s fees— The reason this good faith analysis is a mis- with the goals of Section 998. When the offer under the two-part test. take is that it forces the court to examine the is rejected, hiring experts to help with the In Nelson v. Anderson,50 a principal of a subjective motives, knowledge, and intent of defense of the case also is consistent with corporation formed to market products parties who make or reject settlement offers. the statute.42 through an infomercial sued the other prin- Courts ordinarily eschew such examinations, In Elrod v. Oregon Cummins Diesel, cipal and the attorneys for the enterprise. for good reason. In examining the good faith Inc.,43 a case brought by the driver of a log- The law firm made a Section 998 offer of or realism of a low and unsuccessful settle- ging truck who became a paraplegic after an $5,000, with each party to bear its own costs ment offer, the court permits the parties to accident, the court disallowed requested and attorney’s fees. The plaintiff rejected the introduce statements made by settlement expert witness fees for one defendant. This offer and, at trial, the law firm was awarded judges,51 notwithstanding the lack of com- defendant had made an offer of $15,001 a nonsuit. The trial court taxed all costs petence of the judges to so testify.52 Ap- before the other two defendants settled. The claimed by the law firm, reasoning that the parently it is now permissible to introduce two defendants paid $500,000 that would be offer was a “token” and thus not reason- these otherwise inadmissible statements offset from any jury verdict against the able or propounded in good faith. This case through the hearsay declarations of counsel. remaining defendant. Workers’ compensa- applied the good faith test not just to expert Of course, in settlement conferences, judges tion awards were also to be deducted from witness fees or attorney’s fees—with both often give their opinions to one side or the any verdict. The damages awarded were less available only in the court’s discretion—but other and out of the hearing of the adverse than the $500,000 offset, and the plaintiff was to all costs as well. Without explaining how party. Permitting reference to seemingly inad- awarded nothing against the defendant who or under what theory the court had discretion missible statements is a bad idea. The state- had offered $15,001 to settle. The court to refuse to award the postoffer costs speci- ments by a settlement officer may be an exag- established a two-part test to determine the fied in Section 998, the court simply applied geration designed to encourage a settlement good faith of a Section 998 offer. First, the reasonableness of the offer “is measured…by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.”44 The court noted that the test does not require an accurate prediction; instead, the prediction of an experienced attorney or judge will be sufficient evidence to determine reasonableness.45 Once the offer is deemed to be reasonable under the first part of the test, then the second part of the test is implicated. This part questions whether the information the defendant had was known, or reasonably should have been known, by the plaintiff. The answer shows whether the offeree had the information necessary to gauge the reasonableness of the offer.46 This two-part test suggests that a defendant intending to make an early or low offer should include with the offer a written expla- nation of the basis for the offer. This may require the defendant to disclose explosive evidence not yet known to the plaintiff.47 Of course, if this evidence is disclosed but the plaintiff does not appreciate its impact, the objective standard enunciated in Elrod has still been met. In Colbaugh v. Hartline,48 the

Los Angeles Lawyer November 2004 33 and not the actual analysis of the value of the TRUST DEED FORECLOSURES case. “Industry Specialists For Over 15 Years” The assumption that an early53 or low t Witkin & Eisinger we specialize in the Non-Judicial Professional offer is unrealistic or unfair and that the A Foreclosure of obligations secured by real property adverse party should not be obligated to con- or real and personal property (mixed collateral). sider it and provide a thoughtful response When your client needs a foreclosure done profession- Arbitrator makes no sense. A defendant who believes ally and at the lowest possible cost, please call us at: 1-800-950-6522 that the case against it is without merit, be- We have always offered free advice to all attorneys. and Mediator haves in a manner consistent with that belief, and makes an immediate low offer to the WITKIN plaintiff should, if proven right at the end of Steven Richard Sauer, Esq. trial, be accorded the same beneﬁts as if the EISINGER, LLC offer had been made at a later point in the RICHARD& G. WITKIN, ESQ. ✦ CAROLE EISINGER process. The purpose of the statute is to encourage settlements, not just to encourage “He is truly a master predictable settlements. in his art.” A party who receives an early and low offer should not be excused from giving it every consideration.54 A law designed to Marshall W. Taylor encourage settlements should recognize this Settled over 5,000 Federal (Harvard University, BA 1965, JD 1974) and not give parties a loophole through which and State Litigated Cases to reject an early or low offer. No public pol- MEDIATION OF icy is served by forcing the court to inquire CIVIL DISPUTES into the reasons for the offer or the rejection. 323.933.6833 The legislature states that it wants to encourage settlements, and the courts pro- Offices convenient to San Gabriel claim the same goal. Section 998 should be Valley and Inland Empire Fax 323.933.3184 interpreted and applied to promote settle- E-mail [email protected] 909.625.4785 ments and not, by increasing risks and costs, to discourage them. To accomplish this, the Hourly fee: $350 4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010 legislature should: 1) Disapprove Pazderka and Premium. 2) Eliminate the good faith requirement. 3) Endorse Zamora and ease access to Section 473 motions for relief for clerical or ministerial errors in offers or acceptances. Until the legislature takes these actions, attorneys making or responding to Section 998 offers should remember that even clerical errors may not be relieved by a timely motion and that a low-ball offer may be construed as a bad faith effort rather than a true attempt to settle the case. Section 998 remains a trap that belies its purpose. ■

1 This article is not a blueprint of all the requirements for a §998 offer. For a thorough discussion of how to make a successful offer or demand, see Frank E. Marchetti & Eric A. Schneider, Making Effective Use of Section 998 Offers to Compromise, LOS ANGELES LAWYER, Oct. 2002, at 22. "5),$).'42)!,3+),,302/'2!- 2 CODE CIV. PROC. §998(c)(1). See CODE CIV. PROC. §1033.5(b)(1) (barring recovery of expert witness fees *ANUARYn s,OYOLA,AW3CHOOLs,OS!NGELES #ALIFORNIA in other circumstances). 3 See, e.g., CODE CIV. PROC. §§2031(m)(amending .)4!TRIALSKILLSPROGRAMSPROVIDEAHANDS ONLEARNINGEXPERIENCEINAREALISTICSETTING interrogatory answers), 2033(m) (amending answers to ¾,EARNFROMTHEBESTTRIALLAWYERS JUDGES ANDLAWPROFESSORS requests for admissions). 4 See text, infra. The party formulating an offer should ¾'AINCONlDENCEANDSKILLSINALLAREASOFTRIALADVOCACY try to anticipate what will be added to a basic recov- ¾!CTIVEPARTICIPATION VIDEO TAPEDPERFORMANCES ANDEMPOWERINGCRITIQUES ery in order to determine what will truly induce a party to settle. ¾!NUNFORGETTABLEEXPERIENCE 5 This is not unlike the provisions of Code of Civil .)4!ESTIMATESTHISPROGRAMTOPROVIDE#,%CREDITHOURS OFWHICHHOURSWILL Procedure §1025 permitting a defendant to deposit with the court the amount claimed by the plaintiff in order APPLYTOLEGALETHICS.)4!ISA3TATE"AROF#ALIFORNIA-#,%APPROVEDPROVIDER to avoid liability for costs. Taking this step is an admission of liability. .ATIONAL)NSTITUTEFOR4RIAL!DVOCACYsWWWNITAORGs 6 Lanyi v. Goldblum, 177 Cal. App. 3d 256 (1979).

34 Los Angeles Lawyer November 2004 7 See Elite Show Servs., Inc. v. Staffpro, Inc., 119 Cal. 35 Id. 44 Id. at 699 (footnote omitted) (emphasis in original). App. 4th 263 (2004). 36 It does not appear from the language of the appel- 45 Id. (citing Abbott Ford, Inc. v. Superior Court, 43 8 Rappenecker v. Sea-Land Servs. Inc., 93 Cal. App. 3d late court opinion that the trial court believed that Cal. 3d 858, 874 (1987)). 256 (1979). the sole reason for the manufacturer’s offer was to shift 46 Id. at 699. 9 Lanyi, 177 Cal. App. 3d 181. In this case, the litiga- expert witness fees. Only the appellate court reached 47 Id. at 699-700. tion arose from a written agreement for the purchase that conclusion regarding the offer. 48 Colbaugh v. Hartline, 29 Cal. App. 4th 1516 (1994). of real property, and the agreement contained a broad 37 Wear v. Calderon, 121 Cal. App. 3d 818 (1981). 49 The attorney’s fees provision was previously avail- attorney’s fees clause. The court distinguished a §998 38 Id. at 821. able in San Bernardino County as well as in Riverside judgment from a dismissal—and attorney’s fees are not 39 Jones v. Dumrichob, 63 Cal. App. 4th 1258, 1262 County. available in the event of a dismissal. See International (1998); Culbertson v. R.D. Werner Co., Inc., 190 Cal. 50 Nelson v. Anderson, 72 Cal. App. 4th 111 (1999). Indus., Inc. v. Olen, 21 Cal. 3d 218 (1978). App. 3d 704, 708-10 (1987). 51 Goodstein v. Bank of San Pedro, 27 Cal. App. 4th 10 Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal. 40 Culbertson, 190 Cal. App. 3d 704. 899, 908 (1994) (statements of settlement judge intro- App. 4th 658 (1998). 41 Id. at 709-10. duced by declarations of counsel). 11 CODE CIV. PROC. §1008. 42 Id. at 710-11. See Jones, 63 Cal. App. 4th 1258 (cit- 52 EVID. CODE §703.5. 12 CODE CIV. PROC. §437. ing Wear and Pineda but distinguishing them to find 53 This is a tactic used by those filing frivolous lawsuits 13 Pazderka, 62 Cal. App. 4th at 672. that an offer by defendant to waive costs was made in under BUS. & PROF. CODE §17200. 14 Id. good faith and had economic value). 54 See BUS. & PROF. CODE §6103.5 (permitting dis- 15 Premium Commercial Servs. Corp. v. National Bank 43 Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. covery of counsel’s transmittal of a written settlement of Cal., 72 Cal. App. 4th 1493 (1999). 3d 692 (1987). offer to his or her client). 16 Id. at 1496. The defendant who made the settlement offer later lost the jury verdict but won its motion for judgment notwithstanding the verdict and its motion for a new trial. 17 Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249 (2002). 18 Palace Hardware Co. v. Smith, 134 Cal. 381 (1901). 19 See, e.g., Basinger v. Rogers & Wells, 220 Cal. App. 3d 16 (1990). 20 Zamora, 28 Cal. 4th at 258 (quoting Bettencourt v. Los Rios Community Coll. Dist., 42 Cal. 3d 270, 276 (1986) (italics added by Zamora court)). 21 Id. at 260 n.5. 22 Id. at 260. 23 Roden v. Bergen Brunswig Corp., 107 Cal. App. 4th 620, 624 (2003); Lanyi v. Goldblum, 177 Cal. App. 3d 181, 184 (1986). 24 Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal. App. 4th 658, 667 (1998). 25 T. M. Cobb Co. v. Superior Court, 36 Cal. 3d 273, 280 (1984), quoted in Pazderka, 62 Cal. App. 4th at 671. 26 This evidence showed that 1) Zamora’s complaint sought damages of over $140,000, 2) Zamora never offered to settle for less than $150,000, and the §998 offer was for almost the same amount, and 3) Clayborn knew Zamora was facing financial pressure. 27 Zamora, 28 Cal. 4th at 260. 28 EVID. CODE §1152. 29 Goodstein v. Bank of San Pedro, 27 Cal. App. 4th 899, 908 (1994). 30 CIV. CODE §1717(b)(2). See Santisas v. Goodin, 17 Cal. 4th 599 (1998) (no attorney’s fees awarded upon dismissal); Jue v. Palton, 35 Cal. App. 4th 456 (1995) (same). 31 These costs include expert witness fees under Code of Civil Procedure §998(c)(1) and (d), interest awarded under Civil Code §3291, and costs ordinarily in the court’s discretion, pursuant to Code of Civil Procedure §1033.5(a)(11), (c)(4). While §1033.5(c)(2) and (3) gives the court discretion regarding the amount of certain costs and their reasonable necessity, these elements appear to have nothing to do with the good faith requirement of the settlement offer—and the discretion provided at (c)(2) and (3) should not give the unsuccessful party that rejected a settlement another argument about the allocation of costs awarded under §1033.5(a). 32 When the legislature reenacted §998, courts presumed that it adopted and accepted the good faith requirement imposed by the court of appeal in Wear v. Calderon, 121 Cal. App. 3d 818 (1981). Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692, 696 (1987). 33 Pineda v. Los Angeles Turf Club, Inc., 112 Cal. App. 3d 53 (1980). 34 Id. at 63.

Los Angeles Lawyer November 2004 35 Erroneous federal district court decisions on California’s Consumer Credit Reporting Agencies Act need to be overruled faith and credit by Robert F. Brennan

Among the states, California has a long tradition of being in the vanguard in passing laws that address new problems. In 1975, for example, the California Legislature passed the Consumer Credit Reporting Agencies Act (CCRAA),1 providing consumers with effective remedies for damage to credit reports caused by incorrect derogatory information.

Then, in 2001, California passed one of In 1996, Congress addressed federal pre- than the federal law. FACTA was intended to the nation’s ﬁrst identity theft laws, the Identity emption in passing a series of amendments to overcome the sunset provisions of the FCRA Theft Victim’s Rights against Claimants Act, the FCRA. These 1996 amendments were that would have ended its federal preemp- to address the growing menace of identity left intact when Congress again amended the tion.5 It is important to note, however, that theft.2 Unquestionably among the best con- FCRA in 2003. The 2003 amendments, the FCRA as amended in 1996 contained a sumer protection statutes in the nation, these known as the Fair and Accurate Credit Trans- specific provision precluding federal pre- California laws are threatened by opinions actions Act (FACTA),4 resulted from lobby- holding that the federal Fair Credit Reporting ing by the credit and banking industries. Robert F. Brennan is a principal of Brennan, Wiener Act (FCRA) preempts state law.3 A ﬁnding of They feared the prospect of state laws that & Simons in La Crescenta. He serves as the regional preemption is an incorrect conclusion of law imposed diverse regulations on the credit director for Southern California for the National

that is bad for California consumers. reporting industry and that were tougher Association of Consumer Advocates. KEN CORRAL

36 Los Angeles Lawyer November 2004 emption of the part of the CCRAA that gov- gated to pursue maximum possible accuracy enactments.18 In cases in which Congress has erned the liability of those who furnish infor- in credit reporting. not expressed a clear intent to have exclusive mation to credit reporting bureaus.6 (Those There is a recent California case, Schoen- authority over a particular area of interstate who furnish information are called furnish- dorf v. U. D. Registry,13 that addresses this commerce, federal courts are obligated to ers.) FACTA did not change this provision.7 requirement. The plaintiff, Schoendorf, used weigh against preemption and may only find Moreover, FACTA does not appear to restrict the CCRAA to challenge information on one it in two instances: one, when compliance or preempt California’s identity theft law, of her credit reports concerning a dispute with both state and federal law is a “physi- although practitioners should prepare rebut- she had successfully resolved with a land- cal impossibility”;19 or two, when the state tals for the inevitable argument that it does. lord. The credit reporting agency, U. D. law “stands as an obstacle to the accom- In short, a careful reading of the applicable Registry,14 refused to correct its credit report, plishment and execution of the full purposes statutes clearly reveals that—certain court claiming in its defense that what it had and objectives of Congress.”20 decisions notwithstanding—federal law reported about Schoendorf was consistent Nowhere does the FCRA state a con- should not preempt California’s identity theft with existing public records (although gressional intention to exert exclusive author- laws or the furnisher liability provisions found Schoendorf provided U. D. Registry with ity over credit reporting. On the contrary, in the CCRAA.8 ample evidence that its derogatory marks the FCRA expressly leaves room for state The furnisher liability provisions of the were inaccurate). U. D. Registry filed an anti- law that is not inconsistent with the federal California law are vital. Consumers face ram- SLAPP motion against the plaintiff, who law.21 Thus, the FCRA contemplates that pant inaccuracies in credit reports. According appealed the adverse decision in trial court. state laws affecting credit reporting will be to one study of consumer credit reports: The Second District sided decisively with enforced. The FCRA even includes two • 25 percent of credit reports surveyed con- Schoendorf and, quoting from an earlier deci- express exceptions to any presumed pre- tained serious errors, such as false delin- sion, held that U. D. Registry “‘overlooks emption of state law. Specifically, the federal quencies or accounts that did not belong to its broader obligations under the statutes as law mentions Chapter 93 of the Massa- the consumer, that could result in the denial a credit reporting agency. Both [the] CCRAA chusetts Annotated Laws and Section of credit. and FCRA require “maximum possible” 1785.25(a) of the California Civil Code as not • 54 percent of the surveyed reports con- accuracy.…Certainly reports containing fac- being preempted by that part of the federal tained personal demographic information tually correct information that nonetheless law that addresses the responsibilities of those that was misspelled, outdated, belonged to a mislead their readers are neither maximally entities or persons who furnish credit infor- stranger, or was otherwise incorrect. accurate nor fair to the consumer.’”15 mation to consumer credit reporting agen- • 22 percent of the surveyed reports listed the Schoendorf illustrates the difficulties that cies.22 same mortgage or loan twice. consumers face when they attempt to correct The federal and California laws have con- • Almost 8 percent of the surveyed reports a derogatory item on their credit reports. sistently provided consumers with a right to were missing major credit, loan, mortgage, or Unfortunately, this is not the only problem sue credit bureaus (such as Experian or Trans- other consumer accounts that demonstrate the confronting consumers. For example, con- union) for credit reporting abuse and gov- creditworthiness of the consumer. sumers today are collectively carrying more ernment agencies with enforcement author- • 30 percent of the surveyed reports con- debt on their credit cards than they ever have ity. Until 1993, however, there was no clear tained credit accounts that had been closed by before. This development is made more wor- private right of action against furnishers. the consumer but remained listed as open. risome by the result of a 1978 U.S. Supreme That year, the California Legislature amended • Altogether, 79 percent of the surveyed Court case, Marquette National Bank v. First Civil Code Section 1785.25 to impose specific reports contained either serious errors or Omaha Service Corporation.16 This decision requirements upon furnishers of “incomplete other mistakes of some kind.9 allowed credit card companies to charge the or inaccurate” derogatory credit informa- These statistics follow more than a decade highest interest rate permissible in the state in tion.23 The remedies for any violation of the of enforcement of the FCRA by the Federal which the issuing bank is located—not the CCRAA include actual damages, attorney’s Trade Commission and private attorneys. In state where the cardholder lives. Many banks fees, and punitive damages.24 This 1993 other words, existing enforcement and private responded to this decision by moving their amendment left no question that the legisla- remedies under the FCRA have been shown home offices to states such as South Dakota ture intended to provide a private right of to be insufficient to alleviate the problem of and Delaware, where there are no caps on the action to consumers against furnishers.25 inaccuracies in credit reports. interest rates that banks may charge on credit Creditors and debt collectors quickly chal- card accounts. It may be argued, therefore, lenged the 1993 amendment, claiming that the Remedies for Consumers that if banks can exploit the differences federal law preempted the CCRAA. The issue California has two statutes to protect among state laws, consumers should like- came to the Second District in 1995 in Californians from identity theft, false credit wise be able to avail themselves of state laws Cisneros v. U. D. Registry, Inc.26 The court reporting, wrongful credit reporting, and that enhance their credit rights. relied upon applicable commentary from the improper access to credit information. The FTC on the federal law and firmly decided CCRAA10 addresses identity theft, credit Against Federal Preemption against preemption. Cisneros is still good report damage and abuse, and improper Additionally, there is a strong legal argument law and has not been overturned or distin- access to private credit report information. against the federal preemption of California’s guished on the preemption issue by any other The more recent Identity Theft Victim’s Rights CCRAA and Identity Theft Victim’s Rights California court. However, it did not stop the against Claimants law11 addresses identity against Claimants Act. Federal preemption efforts of credit companies and furnishers to theft. This California law offers remedies occurs in two instances. First, it occurs when obtain preemption of the CCRAA. against furnishers but not against credit Congress expresses a clear intent to exert In 1996 Congress struck a blow on behalf bureaus. At the federal level stand the FCRA12 exclusive authority over a particular area of of consumers by amending the FCRA to pro- and FACTA. The FCRA and the CCRAA interstate commerce.17 Second, preemption vide a private remedy against furnishers for contain an identical requirement that credi- occurs when state law interferes with or frus- providing false or inaccurate credit informa- tors and credit reporting agencies are obli- trates the operations of federal congressional tion.27 Previously, a consumer could only

38 Los Angeles Lawyer November 2004 seek recourse with the FTC. Even after this create a private right of action.34 effect as creating a law enforcement remedy amendment, furnishers still argued that the In essence, Lin holds that if Section only, as argued in Lin. Trying to pull Section FCRA provided only for FTC enforcement. 1785.25(a) offered a private remedy it would 1785.25(a) away from Section 1785.31, In 2002, the Ninth Circuit firmly disagreed in conflict with federal law. The Lin court, how- which provides the remedies for violations, Nelson v. Chase Manhattan Corporation.28 ever, reaches this conclusion by ignoring 15 makes no sense whatsoever. The Lin court left In Nelson, the plaintiff appealed the judgment U.S.C. Section 1681s-2(b), which, under Section 1785.25(a) floating in limbo, out of of the district court dismissing his suit under Nelson, expressly gives a private right of the reach of consumers, who are its intended the FCRA against the creditor-defendant, action to consumers wishing to bring an beneficiaries. Chase. The corporation had furnished action against furnishers. Lin also neglects Lin and other cases, however, have con- allegedly false or inaccurate credit informa- Cisneros, which found against preemption in tended that Section 1785.25(a) is not a statute tion to the three major credit bureaus. The 1995. Later amendments to the FCRA do without a remedy, because California law parties in Nelson did not dispute that the not negate the reasoning of Cisneros, which enforcement agencies could enforce it, and FCRA creates a private right of action against is that no real conflict between state and fed- such enforcement is what Congress intended the credit bureaus; rather, the controversy eral law exists on this issue. While the FCRA in exempting Section 1785.25(a) from pre- concerned whether the FCRA created a pri- and the CCRAA have been amended since emption. But this whole-cloth creation of vate right of action against a furnisher. Cisneros, the key decisional language of legislative intent is not found in the language The Ninth Circuit reversed the decision of Cisneros—that state laws are preempted if of the federal law or congressional records. the district court and unequivocally held that inconsistent with the FCRA “and then only Furthermore, the CCRAA contains no men- the primary purpose of the FCRA is to pro- to the extent of the inconsistency”— remains tion of law enforcement use of Section vide a private remedy to injured consumers the same. Moreover, with the passage of 1785.25(a). and to protect consumers against inaccurate Section 1681s-2(b), which provides a private To argue that Section 1785.25(a) gives a and incomplete credit reporting. Furthermore, right of action against furnishers under the remedy only to law enforcement agencies the court held that the federal law conferred FCRA, the state and federal statutes have renders other express provisions of the FCRA a private right of action against furnishers and grown more, rather than less, consistent. superfluous. In 1996, Congress specifically credit bureaus. The Ninth Circuit made clear Lin also ignores key language of 15 U.S.C. granted state attorneys general the power to that although Section 1681s-2(a) limits Section 1681t(b) exempting Section enforce the FCRA. This enforcement power enforcement to governmental bodies, Section 1785.25(a) of the California Civil Code “as includes USC Section 1681s-2(a), which is 1681s-2(b) was specifically enacted to confer in effect on the date of enactment” of the essentially identical to Section 1785.25(a). a private right of action to consumers against CCRAA. The section was in effect on that In amending the FCRA, Congress did not furnishers.29 The court also held that it is date with reference to the remedies found at intend to pass superfluous legislation.35 The not for a court to remake the balance Section 1785.31. Particularly, it was never in argument that Congress intended Section Congress struck between the two subsections or to introduce limitations on an express right of action.30

Well-Settled Error The 1996 amendment to the FCRA that specifically exempts California Civil Code Section 1785.25(a) should have rendered preemption arguments nonexistent. After the JACK TRIMARCO & ASSOCIATES amendment, however, federal district courts in California began citing a case decided in POLYGRAPH/INVESTIGATIONS, INC. 1986, Pulver v. Avco Financial Services. It holds, in essence, that the CCRAA, as it existed in 1986, did not provide for a private right of action against furnishers.31 Simply 9454 Wilshire Blvd. put, to the extent that the 1993 amendments to the CCRAA expressly create a private Sixth Floor right of action against furnishers, Pulver is no Beverly Hills, CA 90212 longer applicable law. Nevertheless, erroneous decisions granting federal preemption (310) 247-2637 of the CCRAA remain well-settled error. For example, the U.S. District Court for the Northern District of California relied on Pulver in ﬁnding preemption of the CCRAA Jack Trimarco - President email: [email protected] in Quigley v. Pennsylvania Higher Education Former Polygraph Unit Chief www.jacktrimarco.com Assistance Agency,32 an unpublished case Los Angeles F.B.I. (1990-1998) involving a pro per plaintiff and a short opin- CA. P.I. #20970 ion, among other things. The same court nevertheless heeded Quigley in Lin v. Former Polygraph Inspection Team Leader Universal Card Services Corporation.33 Member Society of Former Special Agents Office of Counter Intelligence Relying on Quigley, the court in Lin erro- Federal Bureau of Investigation U.S. Department of Energy neously found preemption of the CCRAA on the basis that Section 1785.25 does not

Los Angeles Lawyer November 2004 39 1785.25(a) for law enforcement use only compels this conclusion, however. Congress already gave the law enforcement powers of Section 1681s-2(a) to state attorneys general; there is no need for Congress to do so again by exempting California Civil Code Section 1785.25(a) from federal preemption only for law enforcement agencies and not for consumers. Another argument for private enforcement of the California law is that the federal remedies do not provide California consumers with adequate redress against false and inaccurate credit reporting. As noted previously, after more than a decade of enforcement of the federal law by the FTC and private attorneys, 79 percent of the credit reports checked in a recent survey contained errors. One rea- CORPORATE 34 Years Experience in the Boardroom son that the federal law has not led to better • Member, Corporations Committee of the credit report accuracy may be the circuitous LAW Business Law Section, State Bar of California route that a consumer must take for redress. EXPERT • Author, Lecturer, Consultant The federal law provides for a private • Editor of the Southern right of action only after the furnisher receives “notice…of a dispute with regard to the com- California Law Review WITNESS pleteness or accuracy of any information pro- Rogers, Sheffield vided by a person to a consumer reporting campbell,llp agency.…” In other words, under the FCRA, (805) 963-9721 a consumer must first bring a dispute about B. Keith Martin, Esq. false or inaccurate credit report information caltech bsee • usc jd [email protected] www.high-techlawyer.com to the credit bureau. When the consumer disputes something on the report, the credit reporting agency then sends an automated dispute verification form to the furnisher. The furnisher then—supposedly—investigates the debt and reports to the agency with instructions to correct, delete, or keep the derogatory. If the credit derogatory is not corrected after the reinvestigation, then the consumer has a private right of action against the furnisher and the agency. False derogatory information may exist on a consumer’s credit report for months or years without being discovered. The consumer may suffer severe financial damage as a result, yet the furnisher and agency may escape liability merely by removing or cor- recting the derogatory information after the consumer notifies the agency. However, by then, the damage is often already done. Another problem with federal enforcement is that a consumer’s dispute does not trigger a duty to reinvestigate, and thus the potential for liability, unless it is directed at the credit reporting agency. If a consumer sends a letter to the furnisher only, no legal obligation to reinvestigate is triggered. It is logical, however, to dispute a false derogatory from Wells Fargo with Wells Fargo, not necessarily with Experian. Thus, consumers have disputed false derogatories sometimes for months or even years with the furnishers without triggering any legal duty to reinvestigate. The CCRAA does not require that con-

40 Los Angeles Lawyer November 2004 sumers complain via a credit bureau to trigger their rights. Under the California law, if a furnisher furnishes false or derogatory credit information that damages the consumer, the furnisher faces liability. The CCRAA is not, INC. however, a strict liability statute. Civil Code Section 1785.25(g) states that a person who YOUR SOURCE FOR TRANSCRIPTION AND DEPOSITION SUMMARIES “furnishes information to a consumer credit Areas of Specialty Include: reporting agency is liable for failure to com- • Workers’ Compensation • Legal Malpractice ply with this section, unless the furnisher • Personal Injury • Medical Malpractice establishes by a preponderance of the evi- • Immigration • Trial and Hearing Transcripts dence that, at the time of the failure to com- ★ ply with this section, the furnisher main- ONE CENT PER WORD FOR MOST TRANSCRIPTIONS tained reasonable procedures to comply with Contact us at: [email protected] or 818.448.5592 www.law-scribe.com those provisions.” This provision provides a safe harbor for furnishers while requiring them to maintain reasonable procedures to avoid liability. ATTN: Personal Injury & Workers’ Comp Attorneys Congress speciﬁcally excepted California from preemption in credit reporting law, so • Auto Accident & Worker’s Comp • On Site X-ray & Radiology Reports Cases California clearly has the right to enact con- • Timely Quality Reports • Liens accepted sumer protection laws that are more effective • Patient Status & Billing Updates • Acupuncture & Chiropractic Care than their federal counterparts. The well-set- • Convenient Location & Ample • Massage & Physical Therapy Parking tled error of Lin and its predecessors needs to • M.D. & Orthopedic Surgeon available • Large Modern Health Center be brought to light, because it is depriving • On Site Neuro-diagnostic Tests • Open Evenings & Weekends consumers of remedies that the state and federal governments intended to belong to California consumers. ■ Uptown Wellness Center (562) 789-1999 7354 Painter Avenue, Whittier, CA 90602 [At Mar Vista St.] Across from Courthouse in Uptown Whittier 1 The Consumer Credit Reporting Agencies Act, CIV. www.uptown.topchiro.com CODE §§1785.1 et seq. 2 The Identity Theft Victim’s Rights against Claimants Act, CIV. CODE §§1798.92 et seq. 3 The Federal Fair Credit Reporting Act, 15 U.S.C. §§1681 et seq. 4 The Fair and Accurate Credit Transactions Act, 15 U.S.C. §§1681 et seq. 5 See former 15 U.S.C. §1681t(d)(2). 6 15 U.S.C. §1681t(a)(1)(F)(ii). 7 Id. 8 CIV. CODE §1785.25(a). 9 NAT’L ASS’NOFSTATE PIRGS, MISTAKES DO HAPPEN: A LOOK AT ERRORS IN CONSUMER CREDIT REPORTS (2004). 10 CIV. CODE §§1785.1 et seq. 11 CIV. CODE §§1798.92 et seq. 12 15 U.S.C. §§1681 et seq. 13 Schoendorf v. U.D. Registry, 97 Cal. App. 4th 227 (2002). 14 In addition to the familiar Big Three credit bureaus— Equifax, Experian, and Transunion—several smaller credit bureaus often cater to speciﬁc clients, such as landlords. 15 See Schoendorf, 97 Cal. App. 4th at 239 (quoting Cisneros v. U.D. Registry, Inc., 39 Cal. App. 4th 548, 579-80 (1995)). 16 Marquette Nat’l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540, 58 L. Ed. 2d 534 (1978). 17 See Goldstein v. Columbia Diamond Ring Co., 366 Mass. 835, 323 N.E. 2d 344 (1975). 18 See McDermott v. Wisconsin, 228 U.S. 115, 33 S. Ct. 431, 57 L. Ed. 754 (1913). 19 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143 (1963). 20 Hines v. Davidowitz, 312 U.S. 52, 67 (1941). 21 Except as provided in 15 U.S.C. §1681t(b) and (c), the “FCRA does not annul, alter, affect or exempt any person subject to the Act from complying with any state law with respect to the collection, distribution or use of any information on consumers, and then only

Los Angeles Lawyer November 2004 41 to the extent of the inconsistency.” 15 U.S.C. §1681t(a). 22 15 U.S.C. §1681t(b) states: [N]o requirement or prohibition may be TAX CONTROVERSIES imposed under the laws of any state…with respect to any subject matter regulated under…15 U.S.C. Section 1681s-2…relating to ■ IRS, FTB, SBOE, EDD the responsibilities of persons who furnish information to consumer reporting agencies, ■ Return Preparation/Late Returns–Non-Filers except…with respect to section 54A(a) of Chapter 93 of the Massachusetts Annotated Laws…or…with respect to section 1785.25(a) of the California Civil Code (as in effect on G. L. HOWARD, CPA September 30, 1996). 562 431-9844 x11 • [email protected] 23 CIV. CODE §1785.25(a). 24 CIV. CODE §1785.31. 25 10417 LOS ALAMITOS BOULEVARD, LOS ALAMITOS CALIFORNIA 90720 Civil Code §1785.25(a) has always provided for a private right of action and was never passed with any restriction preventing a private right of action. 26 Cisneros v. U.D. Registry, Inc., 39 Cal. App. 4th 548, 577-78 (1995): In enacting FCRA, Congress did not attempt to reserve to itself all efforts to regulate the consumer reporting business.…California is not foreclosed from enacting greater protections for consumers injured by the activities of reporting agencies.…The remedies afforded to injured consumers by CCRAA are not inconsistent with, but are in addition to, remedies provided by FCRA.…We find further support for this view in the FTC’s official commentary on the FCRA’s preemption provision. According to the FTC, “State law is pre-empted by the FCRA only when compliance with inconsistent State law would result in violation of the FCRA.” (citations omitted) See FTC Commentary, 55 Fed. Reg. 18804, 18808 (May 4, 1990); S. REP. NO. 91-517, 91st Cong., 1st Sess. 8 (Nov. 5, 1969); 15 U.S.C. §1681t; and 16 C.F.R. pt. 600, app., §622, ¶1 (1995). 27 See 15 U.S.C. §1681s-2(b). 28 Nelson v. Chase Manhattan Corp., 282 F. 3d 1057 Conferences and Legal Programs uclaextension.edu/legalcourses (9th Cir. 2002). 29 Id. at 1060: It can be inferred…that Congress did not want furnishers of credit information exposed to Earn MCLE Credit Online Before the suit by any and every consumer dissatisfied with the credit information furnished. Hence, February 1st Compliance Deadline Congress limited the enforcement of the duties imposed by §1681s-2(a) to governmental bodies. But Congress did provide a filtering mech- The February 1st MCLE Compliance Hate Crimes: An Empirical Analysis anism in §1681s-2(b) by making the disputa- deadline is rapidly approaching. UCLA (4 hours, including 1for Elimination of tious consumer notify a CRA and setting up the Extension offers many short self-study Bias—$100) CRA to receive notice of the investigation by online courses for MCLE credit. You read the furnisher.…With this filter in Contemporary Issues in Tax Practice place…Congress put no limit on private timely articles on cutting-edge legal issues and Procedure (3 hours—$75) enforcement.… and complete self-assessments at your 30 Id. own pace. Reel Lawyers: The Negative Portrayal 31 Pulver v. Avco Fin. Servs., 182 Cal. App. 3d 622 of Attorneys in Film (6 hours, including (1986). Ethics, Elimination of Bias, and Substance 32 1for Ethics—$150) Quigley v. Pennsylvania Higher Educ. Assistance Abuse for the Legal Professional (6 hours— Agency, 2000 U.S. Dist. LEXIS 19847 (2000) (unpub- the entire MCLE Special Requirement—$150) Reel Law Firms: The Unfavorable lished). Treatment of Law Firms in the Movies 33 Lin v. Universal Card Servs. Corp., 238 F. Supp. 2d Selected Topics in Intellectual Property (6 hours, including 1 for Ethics—$150) 1147 (N.D. Cal. 2002). (4 hours—$100) 34 See Quigley, 2000 WL 1196161, 2000 U.S. Dist. Reel Lawyers: The Movie Lawyers’ LEXIS 19847, at *8; Lin, 238 F. Supp. 2d at 1152-53. Deposition Questioning Techniques and 35 Guide to Redemptive Legal Practice See Nelson v. Chase Manhattan Mortgage Co., 282 Strategies (4 hours—$100) F. 3d 1057, 1060 (2002) (“We cannot suppose that (2 hours, including 1 for Ethics—$50) Congress made an amendment without a purpose.”). Sexual Orientation and the Law (6 hours, See also TRW v. Andrews, 534 U.S. 19, 31 (2001): “[It including 1 for Elimination of Bias—$150) is] a cardinal principle of statutory construction [that] a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall For more information and to enroll, visit be superfluous, void, or insignificant.…[We are] reluc- uclaextension.edu/legalcourses, or call (310) 206-1409. tant to treat statutory terms as surplusage in any setting.” (citations omitted).

42 Los Angeles Lawyer November 2004

The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

Improving Your Expert Deposition Results Is Easy By David Nolte

n the vast majority of circumstances, Questions that demand a yes or no response Hypothetical questions can turn an oppos- your deposition results can be improved should be limited to areas in which you ing expert into your witness when a differ- Iby adding a few questions that usually already know, or specifically wish to clarify, ent set of facts are presented. Hypothetical challenge expert witnesses. Consider the the expert’s conclusion and rationale. questions can also be used to support the following practical advice gleaned from hun- Questions that start with who, what, positions of your other witnesses or posi- dreds of actual depositions. where, when, why, and how will generate tions. Similarly, reverse psychology is some- The questions should be modified information that you would never get with times the best way of isolating a witness. slightly depending upon your deposition questions that demand a yes or no Test the limits of how far the opposing strategy. Before the deposition begins, response. Simple follow-up questions that expert will go to support the untenable. determine whether you plan to use the will almost always work include “How do you Isolate and discredit a witness who takes an deposition for persuading your opponent to know that?”, or “Why is that true?” extreme position by taunting him or her settle or to prepare for trial. Whatever strat- Ask questions that elicit limitations in, or into taking positions that most will see as egy you adopt will involve trade-offs. For concerns with, your opposing expert’s work. being silly. example: Examples include: Most depositions take proportionately • If you aggressively cross-examine dur- • What assumptions did you make? too much time on the expert’s background. ing the deposition, you may get exact admis- • What is the factual basis for this opin- Unless the expert is truly inexperienced in sions and a better chance of settlement. ion, and how do these facts lead to your the relevant field(s), many background ques- However, you will also reveal your attacks, conclusion? tions can be covered by simply having the which will allow your opponent to create • What information have you relied on that expert agree that his or her resume or CV is responses between the deposition and trial. was provided by counsel or your client? accurate. However, you should spend time This is particularly troubling with experts, • What concerns do you have regarding looking for areas in which the current tes- who presumably are required to modify your conclusions? timony contradicts or is impeached by: their opinions as new information is learned. • Under what circumstances would you • Authoritative works in the field. Get the • If you just ask for the expert’s opinion and use a different methodology? expert to acknowledge which works are the basis for the opinion, your opponents • What alternative hypotheses could explain authoritative. are more likely to remain unaware of their what you observed? • Texts that the witness uses as references, vulnerabilities. However, you will also lose • What other work would you have liked to or in classes the witness teaches. opportunities to obtain valuable concessions. have performed? • The witness’s testimony in other matters. Since the deposition is your time to learn, Use your expert to assist with the depo- Some of this can be obtained through data- ask plenty of questions that you would never sition. If you’ve hired the right expert, he or bases that provide such information for a fee. use at trial. Most examiners make insuffi- she will be able to provide years’ worth of • The witness’s writings. The Internet is cient use of open-ended questions that insights and understanding. However, do useful for obtaining this and other back- force the witness to explain what work was not let your expert complicate the deposi- ground information. done and the rationale for the conclusions. tion with details that the jury will not under- These same questions can also help stand. Instead, look for key points of under- your expert to prepare. Review the above David Nolte is a principal at Fulcrum Financial lying disagreement that alter your areas with your expert well in advance of his Inquiry LLP with 28 years of experience perform- opponent’s entire conclusion. or her deposition. Allow sufficient time for ing forensic accounting, auditing, business Use hypothetical questions to move an your expert to perform whatever additional appraisals, and related financial consulting. He expert witness off the established script work is cost-justifiable to remedy the prob- regularly serves as an expert witness. that your opposing counsel is presenting. lems that you uncover. ■

44 Los Angeles Lawyer November 2004 ACCIDENT ANALYSIS/RECONSTRUCTION fic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of physics, fellow Am. Physical Society, A R TECH FORENSIC EXPERTS, INC. consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + AA RR TECHTECH 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, ICC. Author of textbook + 60 scientific publications. Over FORENSIC EXPERTS INC. (818) 344-2700, fax (818) 344-3777. Engineers: experi- 35 years in research. Extensive expert witness experienced, registered, advanced degrees, and extensive ence. See display ad on page 66. testimony experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid WILLIAM KUNZMAN, PE marks, visibility, signal phasing, time-motion, and low- 1111 Town and Country #34, Orange, CA 92868, (714) Experienced engineers speed impact. Industrial and construction accidents: 973-8383, fax (714) 973-8821, e-mail: mail@traffic- Advanced degrees OSHA issues. Automotive, industrial, and consumer engineer.com. Web site: www.traffic-engineer.com. products: brakes, seat belts, forklifts, machinery, tools, Contact William Kunzman, PE. Traffic expert witness Extensive trial experience protective equipment, lawn mowers, heaters, chairs, fix- since 1979, both defense and plaintiff. Auto, pedestrian, tures, ladders, scaffolds, fasteners. Premises liability bicycle, and motorcycle accidents. Largest settlement: ▼ (code analysis, stairways, ramps, doors, gates, windows, $2,000,000 solo vehicle accident case against Caltrans. Accident Reconstruction guardrails, pools, lighting). Slip, trip, and falls. Biome- Before becoming expert witnesses, employed by Los An- Vehicle Collision Analysis, Speed, Time chanics. Safety. Human factors. See display ad on geles County Road Department, Riverside County Road Motion History, Biomechanics Vehicle this page. Department, City of Irvine, and Federal Highway Admin- Components: brakes, seats, seatbelts, etc. istration. Knowledge of governmental agency proce- ACCIDENT RESEARCH & RECONSTRUCTION dures, design, geometrics, signs, traffic controls, mainte- ▼ Product Liability 4120 Elizabeth Court, Cypress, CA 90630, (714) 995- nance, and pedestrian protection barriers. Hundreds of Failure Analysis, Machinery, Guarding, 5928, fax: (714) 995-5929, cell (714) 904-5928. Contact cases. Undergraduate work—UCLA; graduate work— Safety, Industrial & Consumer Products David Moses, MSc, PE, president, consulting engi- Yale University. neer. Forensic engineering, accident research, investiga- ▼ Construction tion and reconstruction: trucks, automobiles, motorcy- MR. TRUCK ACCIDENT INVESTIGATION & Code Analysis Stairway, Ramps, Doors, cles, bicycles, and pedestrians. All terrain vehicles RECONSTRUCTION (ATVs); forklifts; dynamic collision analysis; powertrain P.O. Box 398, Brentwood, CA 94513-0398, (800) 337- Windows, Guard rails, Roof, Walkways, malfunction (engine etc.), industrial, and agricultural 4994, fax (925) 625-4995, e-mail: [email protected]. Pools Industrial & Residential Contact William M. Jones. Accident analysis and recon- equipment; machine safety and guarding; mechanical ▼ Slip/Trip & Fall stress and vibration; experimental stress analysis. Slip, struction. Court-qualified expert witness regarding car vs. trip, and fall. Inspection, photographic documentation car, truck vs. car cases, trucking industry safety, and dri- Coefficient or Friction. Trip Hazard, Lighting (including video) testing, models. Sound level readings ver training issues, including Power Point court presenta- for noise exposure and safety analysis. Product liability tions. See display ad on page 27. for all the above. TELEPHONE: 818-344-2700 RIMKUS CONSULTING GROUP, INC. D. WYLIE ASSOCIATES 333 City Boulevard West, Suite 1805, Orange, CA 92868, FAX: 818-344-3777 P.O. Box 60836, Santa Barbara, CA 93160, (805) 681- (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski 18075 Ventura Blvd, Suite 209, Encino, CA 91316 9289, fax (805) 681-9299. Web site: www.drivingfatigue @rimkus.com. Web site: www.rimkus.com. Contact Curt .com. Contact Dennis Wylie. Internationally recognized Yaworski. Rimkus Consulting Group is a full-service human factors expert on driver error, inattention, fatigue, forensic consulting firm. Since 1983, we have provided car, truck, and bus driver skill and knowledge require- reliable investigations, reports and expert witness testi- ments, driver and motor carrier standards of care, hours mony around the world. Our engineers and consultants of service violations, circadian rhythms, sleep debt, im- analyze the facts from origin and cause through extent of One Source. paired vigilance, alertness, decision making, reaction loss. Services: construction defect and dispute analysis, time, and control responses. See display ad on vehicle accident reconstruction, fire cause and origin, Expert Witness Directory page 50. property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure DILL ENGINEERING analysis, foundation investigations, industrial accidents 2945 Bell Road, Suite 261, Auburn, CA 95603, 30100 and explosions, water intrusion analysis, geotechnical Town Center Drive, Suite 0-151, Laguna Niguel, CA evaluations, construction accidents, construction dis- 92677, (949) 249-9057, (530) 888-7729, fax (530) 888- putes, financial analysis and assessments, forensic ac- 7729, e-mail: [email protected]. Contact Peter M.W. counting, HVAC analysis, electrical failure analysis, and Dill. Areas of expertise include automobile and motorcy- video/graphics computer animation. See display ad on cle accident reconstruction, biomechanical injury analy- page 69. sis, human factors, automobile and motorcycle design, mechanical/electronic failure analysis of airbags, seats, CARL SHERIFF, PE 1 seatbelts, fuel systems, rollover, brakes, park-to-reverse, 10153 ⁄2 Riverside Drive, Suite 365, Toluca Lake, CA crashworthiness, and roofcrush. 91602, (818) 766-9259, fax (818) 908-9301. Contact Carl Sheriff, PE, forensic engineer. Degreed in the law and FIELD & TEST ENGINEERING, INC. engineering. Registered professional engineer in me- 5175 Pacific Coast Hwy, 1st Floor, Long Beach, CA chanical, controls, and safety. General contractor, real 90804, (562) 743-7230, fax (562) 494-7667. Contact estate broker, and certified building inspector. Licensed Robert F. Douglas PE. Vehicle/pedestrian/traffic engi- truck driver. Consulting and expert testimony on neering cases for both plaintiff and defense. Over 35 premises liability, product defects, and traffic accidents. years of practicing experience. If your needs fall outside Construction and industrial accidents. Building and our expertise, we will refer you to the BEST. See display OSHA code compliance. Slip, trip, and falls. Human fac- Over 200 qualified expert witnesses, ad on page 60. tors. Safety evaluation. Computerized analysis and ex- in one reliable source. Contact hibits. Free initial file review. FRED M. JOHNSON, PHD Forensic Expert Witness Association P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax JAMES A. SMITH, CONSULTANT today for your free desktop copy: (714) 526-6662. Contact Fred M. Johnson, PhD. For 2562 Treasure Drive, #4102, Santa Barbara, CA 93105- those who seek the most qualified and the highest foren- 4104, (805) 687-7911, fax (805) 687-0832, e-mail: sic workmanship. Extensive test facility and equipment 949.640.9903 [email protected]. Electrical accidents, consultant, [email protected] available. Lighting and illuminations: light intensity mea- expert witness, electrocution, electric shock, analyzing surements, visual perception, times of sunset, twilight, what happened and why, National Electric Code compli- www.forensic.org moon rise/set. Product failure analysis: medical devices, ance, National Electric Safety Code compliance, protec- glass, chairs (all types), ladders. Slip and fall: scientific tive relaying, and equipment and product testing. De- testing of slipperiness on tile, ceramic, walkways, super- gree/licenses: BSEE, MSEE. markets and retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traf- Chapters in Orange County, Los Angeles, NorCal and San Diego

Los Angeles Lawyer November 2004 45 ACCOUNTING FULCRUM FINANCIAL INQUIRY tions, financial records, and construction contract billings, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA investigative accounting, accounting and financial state- ADVISORS/EXPERTS @ MCS ASSOCIATES 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte ments analysis, fraud analyses and audits, business valu- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) @fulcruminquiry.com. Web site: www.fulcruminquiry.com. ation and disputes on damages. Ara Kassabian has more 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates Contact David Nolte. Services include computer foren- than 15 years of corporate and public accounting and au- .com. Web site: www.mcsassociates.com. Contact sics and electronic discovery involving litigation, employ- diting experience and holds the following degrees/li- Norman Katz, managing partner. Nationally recognized ment matters, and fraud investigations. Our expertise in- censes: CPA, CMA, CFP, MBA. banking, finance, and real estate consulting group (estab- cludes accounting inspections and audits, damages lished 1973). Experienced litigation consultants/experts analysis for litigation, business and intangible asset valua- KRYCLER, ERVIN, TAUBMAN, & WALHEIM include senior bankers, lenders, consultants, economists, tions, economic and market studies, and related expert 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA accountants, insurance underwriters/brokers. Specialties: testimony. Fulcrum’s analysis and research, combined 91403, (818) 995-1040, fax (818) 995-4124. Web site: lending customs, practices, policies, in all types of lend- with persuasive presentation techniques, have resulted in [email protected]. Contact Michael J. Krycler. Litiga- ing (real estate, business/commercial, construction, con- an unequalled record of successful court cases and client tion support, including forensic accounting, business ap- sumer/credit card), banking operations/administration, recoveries. See display ad on page 2. praisals, family law accounting, business and professional trusts and investments, economic analysis and valua- valuations, damages, fraud investigations, and lost earn- tions/damages assessment, insurance claims, coverages ings. Krycler, Ervin, Taubman and Walheim is a full-ser- GLENN M. GELMAN & ASSOCIATES, and bad faith, real estate brokerage, appraisal, escrow, vice accounting firm serving the legal community for more CERTIFIED PUBLIC ACCOUNTANTS AND and construction defects/disputes, and title insurance. than 20 years. See display ad on page 72. BUSINESS CONSULTANTS BALLENGER, CLEVELAND & ISSA, LLC 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- DIANA G. LESGART, CPA, CFE, AN 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. ACCOUNTANCY CORP. 90024, (310) 873-1717, fax (310) 873-6600. Contact Contact Glenn Gelman. Expert witness testimony, strat- 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, Bruce W. Ballenger, CPA, executive managing direc- egy development, document discovery, deposition assis- (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 tor. Services available: assist counsel in determining tance, computation of damages, arbitration consulting, @msn.com. Contact Diana G. Lesgart, CPA, CFE. Spe- overall strategy. Help evaluate depositions and evidence. forensic accounting, investigative auditing, rebuttal testi- cialized accounting and litigation support services in the Provide well-prepared, well-documented, and persuasive mony, fiduciary accountings, and trial exhibit preparation. areas of family law litigation, tracing of assets, pension in-court testimony regarding complicated accounting, fi- plan tracing, forensic accounting, business valuation, GURSEY, SCHNEIDER & CO., LLP nancial, and business valuation matters, fairness of inter- goodwill, expert testimony, commercial litigation, fraud in- 10351 Santa Monica Boulevard, Suite 300, Los Angeles, est rates, feasibility of reorganization plans, fraudulent vestigations, economic damages, and real estate litiga- CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: conveyances, bankruptcies, mergers and acquisitions, tion. Over 20 years’ accounting experience with 16 years’ [email protected].. Web site: www.gursey.com. and management misfeasance/malfeasance. More than litigation support specialization. Expert is fully Contact Roseanna Purzycki or Rory Burnett. Forensic 100 open-court testimonies, federal and state, civil and English/Spanish bilingual. accounting and litigation support services in the areas of criminal. See display ad on page 47. marital dissolution, business valuation and appraisal, LEWIS, JOFFE & CO, LLP THE CAPANALYSIS GROUP, LLC goodwill, business disputes, malpractice, tax matters, 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 550 South Hope Street, Suite 1050, Los Angeles, CA bankruptcy, damage and cost-profit assessments, insur- 90024, (310) 475-5676, fax (310) 475-5268. Contact 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: robin- ance claims, court accounting, tracing, and entertainment Brian Lewis, CPA, CVA. Forensic accounting, business [email protected]. Web site: www.capanalysis.com. industry litigation. See display ad on page 55. valuations, cash spendable reports, estate, and trust and Contact Laura Robinson, PhD. Specialties: economic, income tax services. HARGRAVE & HARGRAVE financial, accounting, and statistical analysis for complex 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) MIOD AND COMPANY, LLP CPAS litigation, arbitration, regulatory proceedings, and strate- 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard 11600 Indian Hills Road, Building B, Suite 300, Mission gic corporate decision making. Assist attorneys with dis- .com. Web site: www.taxwizard.com. Contact Terry M. Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- covery, identification of relevant economic and financial Hargrave, CPA/ABV, CFE. Litigation services for family 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA issues, preparation of analytical models, critique of op- law and civil cases. Past chair of California Society of 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod posing experts, and expert testimony in federal and state CPAs’ Family Law Section, business valuation instructor @miod-cpa.com. Visit our Web site at www.miod-cpa courts, and before the FTC and DOJ. Areas of expertise for California CPA Foundation and AICPA. Services in- .com. Contact Donald John Miod, CPA, ABV, CVA, include antitrust (including cutting-edge analyses of mar- clude business valuations, income available for support, CBA. More than 30 years’ experience in litigation support, ket definition, market power, coordinated interactions, and tracing separate property, litigation consulting, real estate including computation of income available for support, unilateral effects), economic damages, business valua- litigation, mediation, fraud investigations, damage calcu- tracing, business valuations, fraud investigations, earn- tion, investigative and forensic accounting and auditing, lation, and other forensic accounting work. ings loss calculations, and income tax matters. Our firm is intellectual property (including patent, trademark, and very computer-oriented, involving the use of computer copyright infringement, and valuation of intellectual prop- HAYNIE & COMPANY, CPAS graphics. We are members of the Institute of Business erty), insurance coverage, contract disputes and tort 4910 Campus Drive, Newport Beach, CA 92660, (949) Appraisers, the International Society of CPAs (founding claims, mergers and acquisitions, and securities fraud. 724-1880, fax (949) 724-1889, e-mail: sgabrielson member), the American Institute of CPAs, and California Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs eco- @hayniecpa.com. Web site: www.hayniecpa.com. Society of CPAs. See display ad on page 72. nomics. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: DAVID OSTROVE, ATTORNEY-CPA COHEN, MISKEI & MOWREY LLP commercial damages, ownership disputes, economic 5757 Wilshire Boulevard, Suite 535, Los Angeles, CA 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, analysis, business valuation, lost profits analysis, 90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail: CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: fraud/forensic investigations, taxation, personal injury, [email protected]. Web site: www.lawyers.com [email protected]. Contact Scott Mowrey. Spe- wrongful termination, professional liability, and expert /ok&olaw. Contact David Ostrove. Accounting malprac- cialties: consultants who provide extensive experience, lit- cross examination. Extensive public speaking back- tice (defense/plaintiff). Experts in legal malpractice (de- igation support, and expert testimony regarding forensic ground assists in courtroom presentations. fense/plaintiff), auditor’s malpractice (defense/plaintiff), accountants, fraud investigations, economic damages, business valuations, breach of fiduciary duty, insurance business valuations, family law, bankruptcy, and reorgani- KAPLAN ABRAHAM BURKERT & COMPANY bad faith cases, tax matters, fraudulent conveyances, zation. Degrees/license: CPAs, CFEs, MBAs. See display Forensic valuation consultants. 5950 Canoga Avenue, leveraged buyout, analysis of financial statements, estate ad on page 41. Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax planning, civil litigation, tax litigation, probate litigation, (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, DELOITTE & TOUCHE LLP criminal tax litigation, and business and real estate trans- CFFA. Expert witness services and preparation in matters 350 South Grand Avenue, Los Angeles, CA 90071, (213) actions. See display ad on page 4. involving business disputes, goodwill, economic dam- 688-4135, fax (213) 673-6719, e-mail: mspindler ages, loss of earnings and profits, fraud and embezzle- SANLI PASTORE & HILL, INC. @deloitte.com. Contact Michael Spindler, (213) 688- ment, forensic accounting, business valuation, marital dis- 1990 South Bundy Drive, Suite 800, Los Angeles, CA 4135, Mimi Justice, (714) 436-7026, or Tom Hughes, solution, legal and accountants’ malpractice, wrongful ter- 90025, (310) 571-3400, fax (310) 571-3420, Web site (619) 237-6583. Our highly skilled team is composed of a mination, intellectual property, and bankruptcy. Member address: www.sphvalue.com. Contact Nevin Sanli or diverse group of practitioners—CPAs, certified fraud ex- of Voir Dire Partners, LLC. Affiliated offices nationwide. Tom Pastore. Sanli Pastore & Hill, Inc. is a premier aminers, statisticians, economists, computer forensic ex- provider of business valuation and valuation advisory ser- perts, business valuation experts, and online research ARA KASSABIAN, CPA vices, specializing in litigation support and expert witness specialists. We also employ former senior law enforce- 136 North Glendale, Glendale, CA 91206, (818) 543- testimony. Services include valuations for goodwill loss, ment officials and agents from the FBI and other govern- 7200, fax (818) 543-7272, e-mail: adkassabian@earthlink estate and gift tax planning (family limited partnerships), ment agencies. Services available worldwide. .net. Contact Ara Kassabian. Forensic analysis of opera-

46 Los Angeles Lawyer November 2004 lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incen- EXPERT WITNESS tive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and market research. Extensive experience in ex- INDUSTRIAL/COMMERCIAL pert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. REAL ESTATE Care, Duty & Broker Responsibility SCHULZE HAYNES & CO. Lease & Purchase Contracts 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert Condition of Premises @schulzehaynes.com. Web site: www.schulzehaynes 42 Years of Experience .com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, JACK KARP discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate trans- (310) 377-6349 FAX: (310) 868-2880 actions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. EXPERT WITNESS • PSYCHIATRY GILBERG, ARNOLD L., M.D., PH.D STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA • Appointed to Medical Board of California 90404, (310) 453-9400, fax (310) 453-1187, e-mail: (11th district MORC) by Governors Brown, Jr., [email protected]. Web site: www.sjaccounting Dukmejian, and Wilson (1982-1991) .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a California-based • Associate Clinical Professor of Psychiatry, UCLA School of Medicine certified public accounting and business advisory firm founded in 1975. Our services include assurance • All areas of civil litigation /accounting, business consulting (profit enhancement, • Board Certified since 1971 finance sourcing, mergers and acquisitions, family-owned E-Mail: [email protected] business, succession planning, executive incentive compensation, business plans and budgeting); business valu- TEL 310/274-2304 ation, financial recovery, forensic services, litigation sup- FAX 310/203-0783 port, public companies services, and tax consulting and 9915 Santa Monica Blvd., Suite 101 compliance. Service area: throughout the United States Beverly Hills, CA 90212 and internationally. See display ad on page 9.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- pert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. Confidence At The Courthouse. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Angeles, Business litigation is increasingly complex. That is why we believe valuation CA 90064-1151, (310) 826-1040, fax (310) 826-1065. issues must be addressed with the same meticulous care Web site: www.zsscpa.com. Contact Lester J. Schwartz, as legal issues. Analysis must be clear. Opinions must be CPA, DABFE, DABFA, Michael D. Saltsman, CPA, defensible. Expert testimony must be thorough and MBA, Ron B. Miller, CPA, ABV, CFE, or David Dichner, articulate. HML has extensive trial experience and can CPA, ABV, CVA. Accounting experts in forensic account- provide legal counsel with a powerful resource for expert ing, tax issues, business valuations, and appraisals, mari- testimony and litigation support. tal dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, and set- For More Information Call 213-617-7775 tlement negotiations and consultations. See display ad Or visit us on the web at www.hmlinc.com on page 53. BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS

Los Angeles Lawyer November 2004 47 ADA/DISABILITY DISCRIMINATION ment officials and agents from the FBI and other govern- involving business disputes, goodwill, economic dam- ment agencies. Services available worldwide. ages, loss of earnings and profits, fraud and embezzle- HAIGHT CONSULTING ment, forensic accounting, business valuation, marital dis- 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) DENA HALL AND ASSOCIATES solution, legal and accountants’ malpractice, wrongful ter- 454-2988, fax (310) 454-4516. Contact Marcia Haight. 4554 Poe Avenue, Woodland Hills, CA 91364, (818) 887- mination, intellectual property, and bankruptcy. Member Human resources expert knowledgeable in both federal 4399, fax (818) 887-4479, e-mail: [email protected]. of Voir Dire Partners, LLC. Affiliated offices nationwide. and California law. Twenty-five years’ corporate human re- Contact Dena Hall, ASA, AAA, senior member. Fine art sources management experience plus over 15 years as a and personal property appraiser, tested and certified. KRYCLER, ERVIN, TAUBMAN, & WALHEIM Human Resources Compliance Consultant in California. Specialist in antiques, fine arts, and decorative arts. Ap- 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA Specializations include sexual harassment, ADA/disability praiser for insurance, charitable donation, probate, or 91403, (818) 995-1040, fax (818) 995-4124. Web site: discrimination, other Title VII and FEHA discrimination and family division. Specialist in art litigation, art and insurance [email protected]. Contact Michael J. Krycler. Litiga- harassment, retaliation, FMLA/CFRA, and safety. Court- fraud cases. Qualified expert witness with testimony in tion support, including forensic accounting, business ap- room testimony and deposition experience. Retained 60% over 100 cases in municipal, state, and federal courts. praisals, family law accounting, business and professional for defense, 40% for plaintiff. Audit employer’s actions in FULCRUM FINANCIAL INQUIRY valuations, damages, fraud investigations, and lost earn- preventing and resolving discrimination, harassment, and 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA ings. Krycler, Ervin, Taubman and Walheim is a full-ser- retaliation issues. Assess human resources policies and 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte vice accounting firm serving the legal community for more practices for soundness, for comparison to prevailing @fulcruminquiry.com. Web site: www.fulcruminquiry than 20 years. See display ad on page 72. practices, and for compliance. Evaluate employer respon- .com. Contact David Nolte. Services include computer siveness to complaints and effectiveness of employer in- forensics and electronic discovery involving litigation, em- vestigations. Assist counsel via preliminary case analysis, SANLI PASTORE & HILL, INC. ployment matters, and fraud investigations. Our expertise discovery strategy, examination of documents, and expert 1990 South Bundy Drive, Suite 800, Los Angeles, CA includes accounting inspections and audits, damages testimony. 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- analysis for litigation, business and intangible asset valua- dress: www.sphvalue.com. Contact Nevin Sanli or Tom ALLERGY & IMMUNOLOGY tions, economic and market studies, and related expert Pastore. Sanli Pastore & Hill, Inc. is a premier provider of testimony. Fulcrum’s analysis and research, combined business valuation and valuation advisory services, spe- ALLERGY ASTHMA RESPIRATORY CARE with persuasive presentation techniques, have resulted in cializing in litigation support and expert witness testimony. MEDICAL CENTER, INC. an unequalled record of successful court cases and client Services include valuations for goodwill loss, estate and 2600 Redondo Avenue, Suite 400, Long Beach, CA recoveries. See display ad on page 2. gift tax planning (family limited partnerships), lost profit 90806, (562) 997-7888, fax (562) 997-8884, e-mail: analysis, mergers and acquisitions, goodwill impairment, HAMILTON, RABINOVITZ & ALSCHULER, INC. [email protected]. Web site: www.allergy-asthma fairness and solvency opinions, ESOPs, incentive stock 2800 28th Street, Suite 325, Santa Monica, CA 90405, .info. Contact Andrea Newsom. Specialties include latex options, capital raises, corporate, partnership, and marital (310) 581-0900, fax (310) 581-0910. Contact Paul J. allergy, asthma, food allergy, drug allergy, anaphylaxis, dissolutions. Comprehensive economic, industry, and Silvern, partner. Public policy, finance, and management sinusitis, hives, sick building syndrome, mold, and envi- market research. Extensive experience in expert witness consultants providing litigation support, simulation, and ronmental disease. Experience, civil: retained or reviewed testimony, pretrial preparation, and settlement negotia- modeling to courts and corporate/public litigants in land more than 70 latex products liability cases, retained for al- tions. See display ad on page 6. use, real estate development, environmental protection, lergy and internal medicine cases in the areas of occupa- mass tort (including toxic tort), insurance, finance, hous- tional asthma, mold exposure, civil litigation, sick building APPRAISER-RESIDENTIAL REAL ESTATE ing, minority rights, education, and employment cases. syndrome. Multiple chemical sensitivity, smoke inhalation, Degrees/license: MBAs, PhDs, cert. planners, MPAs, and toxic exposure. ADELMAN APPRAISALS, INC. MCPs. 14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA 91423, (818) 995-0648, fax (818) 990-0326, e-mail: ANESTHESIOLOGY HARGRAVE & HARGRAVE [email protected]. Web site: www.adel- 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) ROGER F. DONENFELD, MD manappraisals.com. Contact Chris Adelman. Special- 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard 10557 Rocca Place, Los Angeles, CA 90077, (310) 471- ties: 10+ years’ experience in residential real estate ap- .com. Web site: www.taxwizard.com. Contact Terry M. 3777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail praisals, high-end residential appraisals, divorces, sepa- Hargrave, CPA/ABV, CFE. Litigation services for family .com. Contact Roger F. Donenfeld, MD. Chart review ration, trust, and retroactive appraisals, expert witness, law and civil cases. Past chair of California Society of and depositions. Expert witness, board certified, 1986. depositions for residential evaluations and litigation, va- CPAs’ Family Law Section, business valuation instructor Anesthesiology fellowship-trained. Ivy League, board re- cant land evaluations, extensive experience in dealing for California CPA Foundation and AICPA. Services in- view textbook author. Certified medical board of CA ex- with law offices, business managers, and accounting clude business valuations, income available for support, pert. Active clinical anesthesia practice. Extensive med- firms for various appraisal related business. tracing separate property, litigation consulting, real estate ical legal experience. litigation, mediation, fraud investigations, damage calcu- ARCHITECTURAL FORENSICS APPRAISAL AND VALUATION lation, and other forensic accounting work. PHILIP KROEZE, AIA, CONSULTING HIGGINS, MARCUS & LOVETT, INC. ADVISORY SERVICES GROUP ARCHITECTURAL SERVICES 800 South Figueroa Street, Suite 710, Los Angeles, CA Coldwell Banker Commercial, 2502 West Artesia Boule- 19 Summerside, Coto De Caza, CA 92679, (949) 589- 90017, e-mail: [email protected]. Web site: www.hmlinc vard, Redondo Beach, CA 90278, (310) 937-7700, fax 0554, fax (949) 589-4351, e-mail: [email protected]. .com. Contact Mark C. Higgins, ASA, president. The (310) 798-6836. Specialties: Real estate, valuations, busi- Contact Philip Kroeze, AIA. Expert witness: architectural firm has over 20 years of litigation support and expert tes- ness valuations, condemnations, and FF & E. As part of and engineering standard of care, construction defects, timony experience in matters involving business valuation, the Coldwell Banker Commercial group, over 450 offices moisture intrusion, and construction documents. Thirty- economic damages, intellectual property, loss of business nationwide. Additional services for special purpose mixed five years of experience in design and construction, resi- goodwill, and lost profits. Areas of practice include busi- use and contaminated/toxic properties, environmental/ dential, commercial, and office buildings. Exhibits (pho- ness disputes, eminent domain, bankruptcy, and corpo- civil engineering. Right-of-way eminent domain, structural tos, models, charts, renderings). Service area: Southern rate and marital dissolution. See display ad on page 47. defect reports, and construction defect reports. In-house California. CPA, general contractor, and engineers. Approved for HOULIHAN LOKEY HOWARD & ZUKIN SPIEGEL PROPERTY DAMAGE CONSULTING & IRS, federal, state, and municipal courts. Offices in Or- 1930 Century Park West, Los Angeles, CA 90067, (310) FORENSICS ange County, San Diego/Inland Empire, and Northern 553-8871, fax (310) 553-2173. Contact O. Kit Lokey. (800) 266-8988, fax (909) 591-7274, e-mail: brispi711@aol California. See display ad on page 75. Houlihan Lokey Howard and Zukin is a leading indepen- .com. Web site: www.propertydamageinspections.com. dent financial adviser, with nine offices across the U.S. DELOITTE & TOUCHE LLP Contact Brian Spiegel/David Spiegel. Consultants and and U.K. The firm provides business and securities valua- 350 South Grand Avenue, Los Angeles, CA 90071, expert witnesses (plaintiff and defense), mold contamina- tions, fairness, solvency and ESOP opinions, estate and (213) 688-4135, fax (213) 673-6719, e-mail: mspindler tion structure and contents, mold remediation standards gift tax valuations, and dispute analysis and litigation sup- @deloitte.com. Contact Michael Spindler, (213) 688- of care, water damage/water intrusion detection/concrete port services. 4135, Mimi Justice, (714) 436-7026, or Tom Hughes, moisture testing, sewage backflows, and fire and smoke (619) 237-6583. Our highly skilled team is composed of a KAPLAN ABRAHAM BURKERT & COMPANY- damage. Trouble shooting/cause and origin. Invasive and diverse group of practitioners—CPAs, certified fraud ex- Forensic valuation consultants. 5950 Canoga Avenue, noninvasive testing. Industry standards for construction aminers, statisticians, economists, computer forensic ex- Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax and restoration. Insurance claims experts, determine if perts, business valuation experts, and online research (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, damage is related to claim, flooring forensics, construc- specialists. We also employ former senior law enforce- CFFA. Expert witness services and preparation in matters tion defect, and detailed construction cost estimates. In-

48 Los Angeles Lawyer November 2004 White • Expert Witnesses • Forensic Accountants & Economists Zuckerman • Business Appraisers • Lost Proﬁts and Earnings Warsavsky In Commercial and Personal Litigation Luna • Fraud Investigation • Marital Dissolution Wolf • Client Service Oriented Hunt LLP • Excellent Communication Skills Certiﬁed Public Accountants

Lost Profits Analysis Profits Lost Profits

Years

14455 Ventura Boulevard, Suite 300, Sherman Oaks, California, 91423 Phone (818) 981-4226, Fax (818) 981-4278 363 San Miguel Drive, Suite 130, Newport Beach, California, 92660 Phone (949) 219-9316, Fax (949) 219-9095

www.wzwlw.com Email: [email protected] spections, formal reports and litigation support. Lic. Gen. — DRIVER ERROR ANALYSIS — Constractors B C15 C33 C61/D-52. Lic. Gen Contractor #299472. Degrees/licenses: CRs, CIEs, CMRs, IICRC Human Factors Forensic Science Masters. See display ad on page 73. SCHWARTZ / ROBERT & ASSOCIATES, INC. Driver error • Inattention • Fatigue • Sensory, Internationally 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- perceptual, mental, and physical factors • Car, truck and 1115, cell (818) 825-3247, fax (805) 777-1172, e-mail: bus driver skill and knowledge requirements • Driver Recognized [email protected]. Web site: www.schwartzrobert and motor carrier standards of care • Hours of service .com. Contact Robert I. Schwartz, AIA. Real Property violations • Circadian rhythms • Sleep debt • Human Expert Development procedures & practices, all building types, factors traffic accident analysis sizes & phases. Professional evaluation of building design www.drivingfatigue.com errors & omissions, building code compliance & professional standards of practice. Forensic investigation of ■ DENNIS WYLIE D. WYLIE ASSOCIATES construction defects. Repair cost estimates. Construction P O Box 60836, Santa Barbara, CA 93160 contract/subcontract performance—project management administration & cost accounting, CPM scheduling, cost VOICE (805) 681•9289 ■ FAX (805) 681•9299 estimating, change order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness testimony. Experienced AAA arbitra- EXPERT WITNESS — Claims Consultant tor & mediator. Large & complex cases. Member, Dispute Resolution Boards. OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states BAD FAITH EXPERT and qualified in state and federal courts. Expert in good faith/bad faith, standards and practices and standard in the industry. Specialties in DAVID F. PETERSON property/casualty construction defect, fire/water, uninsured/underinsured 10681 Encino Drive, Oak View, CA 93022, (805) 649- motorist, warehouse and cargo claims. Litigation support, case review and 8557, fax (805) 649-5957, e-mail [email protected]. EXPERIENCE Contact David F. Peterson. Fourteen years of claim ex- evaluation claim consultation, coverage review and evaluations. perience. Twenty-five years as a bad faith coverage attor- INTEGRITY ney. Qualified and testified in over 50 trials on bad faith Contact Gene Evans at E. L. Evans Associates (first and third party), underwriting, legal malpractice, cov- HONESTY Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] erage and advice of counsel. Testimony in federal and state courts in California, Arizona, Nevada, Virgin Islands, and Saint Lucia, West Indies, for insureds and insurers. 3310 AIRPORT AVENUE, SUITE 2, SANTA MONICA, CALIFORNIA 90405 BANKING

ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates .com. Web site: www.mcsassociates.com. Contact Norman Katz, managing partner. Nationally recognized banking, ﬁnance, and real estate consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: VALUATION AND LITIGATION CONSULTANTS lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, con- Since 1968 sumer/credit card), banking operations/administration, ▲ trusts and investments, economic analysis and valua- BUSINESS VALUATION — Appraisal of tangible and intangible assets; tions/damages assessment, insurance claims, coverages mergers. acquisitions, divestitures; public and private financings; litigation and bad faith, real estate brokerage, appraisal, escrow, involving partnership or corporate disputes; estate planning and construction defects/disputes, and title insurance. ▲ LITIGATION CONSULTING — Expert testimony on damage issues; ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA breach of contract; business interruption; partnership or shareholder disputes; 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter fraud investigations; personal injury matters @earthlink.net. Contact Thomas A. Tarter, managing ▲ director. Former CEO of two banks. Lending, forgery, en- EMINENT DOMAIN — Specialty practice in the appraisal of ﬁxtures and dorsements, letters of credit, guarantees, lender liability, equipment and goodwill loss checking accounts, credit cards, and bankruptcy. Expert witness, litigation consulting. Expert referral service es- ▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant database crow, corporate governance, mortgage banking, and real management and settlement distribution services estate. Over 500 cases nationally. See display ad on page 73. COMMITMENT, INGENUITY, INTEGRITY BANKRUPTCY/TAX Contact: Aaron Amster, Wes Nutten 6060 Center Drive, Suite 825 225 Bush Street, 16th Floor ANDELA CONSULTING GROUP, INC. Los Angeles, California 90045 San Francisco, California 94104 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter Tel (310) 216-1400 Tel (415) 439-8390 @earthlink.net. Contact Thomas A. Tarter, managing Fax (310) 216-0800 Fax (415) 439-8391 director. Former CEO of two banks. Lending, forgery, en- dorsements, letters of credit, guarantees, lender liability, Toll-free (888) 240-5184 checking accounts, credit cards, and bankruptcy. Expert www.dmavalue.com witness, litigation consulting. Expert referral service escrow,

50 Los Angeles Lawyer November 2004 corporate governance, mortgage banking, and real estate. @pfscorporation.com. Web site: www.pfscorporation.com. Over 500 cases nationally. See display ad on page 73. Contact J. Robert Nelson, PE. Building and fire code You r expert. Thirty years in code enforcement and construction BALLENGER, CLEVELAND & ISSA, LLC (10 years with ICBO/Uniform Building Code and Uniform 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA Fire Code, 5 years with Los Angeles County Building De- Single Source 90024, (310) 873-1717, fax (310) 873-6600. Contact partment). Civil, structural, and fire protection engineering. Bruce W. Ballenger, CPA, executive managing direc- for construction-related tor. Services available: assist counsel in determining BUSINESS overall strategy. Help evaluate depositions and evidence. investigations and litigation support. Provide well-prepared, well-documented, and persuasive ROBERT C. ROSEN in-court testimony regarding complicated accounting, fi- 300 South Grand Avenue, Suite 2700, Los Angeles, CA nancial, and business valuation matters, fairness of inter- 90071, (213) 362-1000, fax (213) 362-1001, e-mail: est rates, feasibility of reorganization plans, fraudulent [email protected]. Web site: www.rosen-law.com. conveyances, bankruptcies, mergers and acquisitions, Specializing in securities law, federal securities law en- and management misfeasance/malfeasance. More than forcement, securities arbitration and international securi- 100 open-court testimonies, federal and state, civil and ties, insider trading, NYSE, AMEX, NASD disciplinary pro- criminal. See display ad on page 47. ceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state se- GREENBERG GLUSKER FIELDS CLAMAN curities laws, public and private offerings, internet securi- MACHTINGER & KINSELLA LLC ties, and law firm liability. Former chair, LACBA Business 1900 Avenue of the Stars, Suite 2100, Los Angeles, CA & Corporations Law Section; LLM, Harvard Law School. 90067, (310) 201-7456, fax (310) 553-0687, e-mail: More than 30 years practicing securities law, 12 years kblock@ggfirm.com. Web site: www.ggfirm.com. Contact with the U.S. Securities & Exchange Commission, Wash- Karl E. Block. Expert testimony and consulting. ington, DC. Published author of securities regulations, in- Consulting Services cluding 8 volume treaties. See display ad on page 57. THE SCOTLAND GROUP, INC., AN ALTMA Our experienced experts/consultants GROUP, LLC COMPANY 620 Newport Center Drive, Suite 1100, Newport Beach, BUSINESS APPRAISAL/BUSINESS ensure a coordinated, cost-effective, CA 92660, (949) 673-7750, fax (949) 673-7751, e-mail: VALUATION multi-disciplined approach to visual and [email protected]. Web site: www.scotlandgroup.com. Con- THE CAPANALYSIS GROUP, LLC intrusive site investigations, document tact David L. Auchterlonie, CTP. Firm of over 60 profes- 550 South Hope Street, Suite 1050, Los Angeles, CA review, research and analysis of code and sionals (CEOs, COOs, and CFOs), each with more than 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: robin- industry standards issues, cost estimates, 20 years of hands-on corporate turnaround and manage- [email protected]. Web site: www.capanalysis.com. arbitration, mediation, and courtroom ment consulting experience. Since 1986, the firm has Contact Laura Robinson, PhD. Specialties: economic, fi- served more than 600 underperforming and financially nancial, accounting, and statistical analysis for complex testimony involving: distressed businesses. Experts in corporate renewal. litigation, arbitration, regulatory proceedings, and strate- Construction Defects STONEFIELD JOSEPHSON, INC. gic corporate decision making. Assist attorneys with dis- 1620 26th Street, Suite 400 South, Santa Monica, CA covery, identification of relevant economic and financial Delay and Disruption Claims issues, preparation of analytical models, critique of op- 90404, (310) 453-9400, fax (310) 453-1187, e-mail: Insurance Investigation [email protected]. Web site: www.sjaccounting posing experts, and expert testimony in federal and state .com. Contact Jeffrey Sumpter, director of financial re- courts, and before the FTC and DOJ. Areas of expertise Personal Injury/Safety covery. Stonefield Josephson, Inc. is a California-based include antitrust (including cutting-edge analyses of mar- ADA Auditing and Compliance certified public accounting and business advisory firm ket definition, market power, coordinated interactions, and founded in 1975. Our services include assurance/account- unilateral effects), economic damages, business valua- Contractual Disputes ing, business consulting (profit enhancement, finance tion, investigative and forensic accounting and auditing, Error & Omission Claims sourcing, mergers and acquisitions, family-owned busi- intellectual property (including patent, trademark, and ness, succession planning, executive incentive compen- copyright infringement, and valuation of intellectual prop- sation, business plans and budgeting); business valua- erty), insurance coverage, contract disputes and tort tion, financial recovery, forensic services, litigation sup- claims, mergers and acquisitions, and securities fraud. Surety Claims Services port, public companies services, and tax consulting and Degrees licenses: CPAs, CFEs, CVAs, JDs, PhDs eco- Complete surety support, including initial compliance. Service area: throughout the United States nomics. exposure analysis, project takeover and and internationally. See display ad on page 9. COHEN, MISKEI & MOWREY LLP completion, claims packaging and 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA resolution, and subrogation and recovery. BIOMECHANICS 91403, (818) 986-5070, fax (818) 986-5034, e-mail: FRED M. JOHNSON, PHD [email protected]. Contact Scott Mowrey. Spe- Takeovers and Completions P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax cialties: consultants who provide extensive experience, lit- (714) 526-6662. Contact Fred M. Johnson, PhD. For igation support, and expert testimony regarding forensic Exposure Analysis those who seek the most qualified and the highest foren- accountants, fraud investigations, economic damages, Payment Bond Claim Reconciliations business valuations, family law, bankruptcy, and reorgani- sic workmanship. Extensive test facility and equipment Construction Claims/Packaging and available. Lighting and illuminations: light intensity mea- zation. Degrees/license: CPAs, CFEs, MBAs. See display surements, visual perception, times of sunset, twilight, ad on page 41. Resolution moon rise/set. Product failure analysis: medical devices, DESMOND MARCELLO AND AMSTER Dispute Resolution glass, chairs (all types), ladders. Slip and fall: scientific Southern California Office: 6060 Center Drive, Suite 825, Litigation Support testing of slipperiness on tile, ceramic, walkways, super- Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, markets and retail industry. Fall from height: stairways, fax (310) 216-0800. Northern California Office: 1485 Enea Expert Witness Testimony balconies, platform, theatre pit, pole. Biomechanics. Traf- Court, Suite 1330, Concord, CA 94520, (925) 674-3668, Computerized Document Control fic accident reconstruction: cars, trucks, pedestrian, bicy- fax (925) 674-3669. Web site: www.dmavalue.com. Con- cle. Professor of physics, fellow Am. Physical Society, tact Wes Nutten, Aaron Amster, or Madeleine Mamaux. consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + Litigation consulting, forensic accounting, expert witness ICC. Author of textbook + 60 scientific publications. Over testimony, class action claims administration services, 35 years in research. Extensive expert witness experi- and business valuation services. Staff qualifications in- ence. See display ad on page 66. clude CPA, CMA, ABV, CFA, and ASA designations. Tes- timony experience in numerous court jurisdictions. Estab- BUILDING & FIRE CODES lished in 1968. See display ad on page 50. www.roel.com / 800.662.7635 PFS CORPORATION FULCRUM FINANCIAL INQUIRY California / Arizona / Nevada 3637 Motor Avenue, Suite 380, Los Angeles, CA 90034, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA Utah / New Mexico / Oregon (310) 559-7287, fax (310) 559-1368, e-mail: rnelson 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte CA Lic. # 184531-B1

Los Angeles Lawyer November 2004 51 @fulcruminquiry.com. Web site: www.fulcruminquiry.com. LEWIS, JOFFE & CO, LLP WHITE, ZUCKERMAN, WARSAVSKY, LUNA, Contact David Nolte. Services include computer foren- 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA WOLF & HUNT sics and electronic discovery involving litigation, employ- 90024, (310) 475-5676, fax (310) 475-5268. Contact 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA ment matters, and fraud investigations. Our expertise in- Brian Lewis, CPA, CVA. Forensic accounting, business 91423, (818) 981-4226, fax (818) 981-4278, and 363 San cludes accounting inspections and audits, damages valuations, cash spendable reports, estate, and trust and Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) analysis for litigation, business and intangible asset valua- income tax services. 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw tions, economic and market studies, and related expert .com. Contact Barbara Luna, Drew Hunt, Paul White, testimony. Fulcrum’s analysis and research, combined MIOD AND COMPANY, LLP CPAS Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- with persuasive presentation techniques, have resulted in 11600 Indian Hills Road, Building B, Suite 300, Mission pert witness testimony for business, real estate, personal an unequalled record of successful court cases and client Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- injury, and marital dissolution. Investigative analysis of lia- recoveries. See display ad on page 2. 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA bility, damage analysis of lost profits, lost earnings, and 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod unjust enrichment, fraud investigation, business valuation, GURSEY, SCHNEIDER & CO., LLP @miod-cpa.com. Visit our Web site at www.miod-cpa tax planning and preparation and mergers and acquisi- 10351 Santa Monica Boulevard, Suite 300, Los Angeles, .com. Contact Donald John Miod, CPA, ABV, CVA, tions. Testified hundreds of times as expert witnesses. CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: vs- CBA. More than 30 years’ experience in litigation support, Prior Big Four accounting firm experience. Specialties in- [email protected] site: www.gursey.com. Con- including computation of income available for support, clude accounting, antitrust, breach of contract, business tact Vanita M. Spaulding, CFA, ASA. Partner qualifica- tracing, business valuations, fraud investigations, earn- interruption, business dissolution, construction, fraud in- tions include MBA, CFA, ASA, and ABV. GSCO is an ac- ings loss calculations, and income tax matters. Our firm is vestigation, asset tracing analysis, intellectual property counting firm specializing in forensic accounting, litigation very computer-oriented, involving the use of computer (patent, trademark and copyright infringement and trade support services, business valuation and appraisal ser- graphics. We are members of the Institute of Business secrets), personal injury, product liability, professional vices, for a variety of purposes including marital dissolu- Appraisers, the International Society of CPAs (founding malpractice, real estate, spousal support, tax, valuation of tion, gift and estate planning, eminent domain goodwill member), the American Institute of CPAs, and California businesses, unfair advertising, unfair competition, and loss, business disputes, malpractice, tax matters, bank- Society of CPAs. See display ad on page 72. wrongful termination. See display ad on page 49. ruptcy, damage and cost-profit assessments, insurance SANLI PASTORE & HILL, INC. claims, court accounting, tracing, and entertainment in- CHEMISTRY dustry litigation. GSCO has over 30 years’ experience as 1990 South Bundy Drive, Suite 800, Los Angeles, CA expert witnesses in litigation support. See display ad on 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- CHEMICAL ACCIDENT RECONSTRUCTION page 55. dress: www.sphvalue.com. Contact Nevin Sanli or Tom SERVICES, INC. Pastore. Sanli Pastore & Hill, Inc. is a premier provider of 9121 East Tanque Verde Road, Suite 105, Tucson, AZ HAYNIE & COMPANY, CPAS business valuation and valuation advisory services, spe- 85749, (800) 645-3369, fax (520) 749-0861, e-mail: 4910 Campus Drive, Newport Beach, CA 92660, (949) cializing in litigation support and expert witness testimony. [email protected]. Web site: www.chemaxx.com. 724-1880, fax (949) 724-1889, e-mail:sgabrielson Services include valuations for goodwill loss, estate and Contact Dr. Michael Fox. Comprehensive chemical acci- @hayniecpa.com. Web site: www.hayniecpa.com. gift tax planning (family limited partnerships), lost profit dent investigation—specializing in complex industrial Contact Steven C. Gabrielson. Alter ego, consulting analysis, mergers and acquisitions, goodwill impairment, chemical accidents and chemical-related consumer prod- and expert witness testimony in a variety of practice fairness and solvency opinions, ESOPs, incentive stock uct injuries, chemical fires and explosions, chemical la- areas: commercial damages, ownership disputes, eco- options, capital raises, corporate, partnership, and marital beling, chemical packaging, chemical handling and ship- nomic analysis, business valuation, lost profits analysis, dissolutions. Comprehensive economic, industry, and ping, chemical burns, hot liquid burns, chemical warn- fraud/forensic investigations, taxation, personal injury, market research. Extensive experience in expert witness ings, chemical disposal, chemical safety, EPA, DOT, wrongful termination, professional liability, and expert testimony, pretrial preparation, and settlement negotia- OSHA, propane, natural gas, flammable liquids, haz- cross examination. Extensive public speaking back- tions. See display ad on page 6. ardous chemicals, aerosols, metallurgy, corrosion, failure ground assists in courtroom presentations. SCHULZE HAYNES & CO. analysis, water contamination, water testing, plastics, HIGGINS, MARCUS & LOVETT, INC. 660 South Figueroa Street, Suite 1280, Los Angeles, CA acids, alkalis, and MSDSs. State-of-the-art equipment 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert available, including natural SEM/EDAX, GC/MS, FTIR, etc. 90017, e-mail: [email protected]. Web site: www.hmlinc @schulzehaynes.com. Web site: www.schulzehaynes PhD physical chemistry, certified fire and explosion inves- .com. Contact Mark C. Higgins, ASA, president. The .com. Contact Karl J. Schulze or Dana Haynes, princi- tigator, NACE accredited in corrosion, OSHA HAZWOPER firm has over 20 years of litigation support and expert tes- pals. Specialties: forensic business analysis and account- certified (hazardous chemicals), DOT certified (shipment timony experience in matters involving business valuation, ing, lost profits, economic damages, expert testimony, of hazardous materials), accredited in aerosol technology. economic damages, intellectual property, loss of business discovery assistance, business and real estate valuations, goodwill, and lost profits. Areas of practice include busi- construction claims, corporate recovery, real estate trans- COMPUTER FORENSICS ness disputes, eminent domain, bankruptcy, and corpo- actions, financial analysis and modeling, major profes- DATACHASERS, INC. rate and marital dissolution. See display ad on page 47. sional organizations, and have experience across a broad P.O. Box 2861, Riverside, CA 92516-2861, (877) Data spectrum of industries and business issues. Degrees/li- KAPLAN ABRAHAM BURKERT & COMPANY Exam, (877) 328-2392, (909) 780-7892, fax (909) 780- censes: CPA; CVA; CFE; CMA; certified appraiser, PE; RE 9199, e-mail: [email protected]. Web site: www Forensic valuation consultants. 5950 Canoga Avenue, broker. Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax .dataChasers.com. Contact Rick Albee. Hard drive (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, SINGLER VALUATION CONSULTING imaging, use assessment and auditing, intellectual prop- CFFA. Expert witness services and preparation in matters 2127 Lyans Drive, La Cañada, CA 91011, (818) 541-1500, erty and trade secret disputes, restore hidden, deleted, or involving business disputes, goodwill, economic dam- fax (818) 541-1565, e-mail: [email protected]. lost files and images, file dates when created, modified, ages, loss of earnings and profits, fraud and embezzle- Contact Noa Singler. Valuation of closely held busi- or deleted, Internet history and e-mail recovery, computer ment, forensic accounting, business valuation, marital dis- nesses, eminent domain, goodwill loss analysis, expert use auditing and evaluations, human resources, em- solution, legal and accountants’ malpractice, wrongful ter- witness testimony, litigation consulting, gift and estate tax, ployer/employee exams, experienced expert witness and mination, intellectual property, and bankruptcy. Member damage analysis, and acquisitions. special master and full computer laboratory. Many years of Voir Dire Partners, LLC. Affiliated offices nationwide. of public sector experience. Multiple certifications. Prior STONEFIELD JOSEPHSON, INC. law enforcement. See display ad on page 54. NANCY A. KEARSON, CPA, ABV, CVA, DABFA 1620 26th Street, Suite 400 South, Santa Monica, CA 1801 Century Park East, Suite 2400, Los Angeles, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: FULCRUM FINANCIAL INQUIRY 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Web site: www.sjaccounting 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA [email protected]. Contact Nancy Kearson. Spe- .com. Contact Jeffrey Sumpter, director of financial 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte cialties: solid, cost-effective, timely expert witness and recovery. Stonefield Josephson, Inc. is a California- @fulcruminquiry.com. Web site: www.fulcruminquiry.com. consultation services, investigative forensic accounting, based certified public accounting and business advisory Contact David Nolte. Services include computer foren- asset tracing, loss of earnings calculations, partnership firm founded in 1975. Our services include assurance/ sics and electronic discovery involving litigation, employ- and shareholder disputes, business valuation, and profes- accounting, business consulting (profit enhancement, fi- ment matters, and fraud investigations. Our expertise in- sional practice appraisal. Director, California Society of nance sourcing, mergers and acquisitions, family-owned cludes accounting inspections and audits, damages CPAs-LA. Immediate past officer, Family Law Section. Li- business, succession planning, executive incentive com- analysis for litigation, business and intangible asset valua- censes and accreditations: Certified Public Accountant; pensation, business plans and budgeting); business valu- tions, economic and market studies, and related expert Accredited in Business Valuation, Certified Valuation Ana- ation, financial recovery, forensic services, litigation sup- testimony. Fulcrum’s analysis and research, combined lyst, Diplomate of the American Board of Forensic Ac- port, public companies services, and tax consulting and with persuasive presentation techniques, have resulted in countants. compliance. Service area: throughout the United States an unequalled record of successful court cases and client and internationally. See display ad on page 9. recoveries. See display ad on page 2.

52 Los Angeles Lawyer November 2004 COMPUTER SIMULATIONS/GRAPHIC

VISUAL FORENSICS (800) 426-6872, 130 Ryan Industrial Court, Suite 105, San Ramon, CA 94583. Web site: www.visualforensics.com. 3D computer simulations for all aspects of accident reconstruction, vision related malpractice, criminal reenact- ment, and more. Vision perception, site visibility, and human factors analysis. Opposing demonstrative evidence analysis. In-house scientiﬁc and engineering experts. Led by internationally recognized vision scientist, Dr. Arthur P. Ginsburg, who has over 16 years of experience as a vision and visibility expert consultant for the legal industry and government agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes and Court TV. See display ad on page 75.

COMPUTERS/INFORMATION SCIENCES

COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove @computer.org. Web site: www.cosgrovecomputer.com. DISCOVERY DIAGNOSTICS, MEDICAL CORPORATION Contact John Cosgrove. John Cosgrove, PE, has over 40 years’ experience in computer systems and has been RADIOLOGY a self-employed, consulting software engineer since B Reader 1970. He is a part-time lecturer in the UCLA School of En- Board Certified Diagnostic and Nuclear Radiologist gineering and LMU graduate school. He recently com- pleted an invited article, “Software Engineering & Litiga- Providing Statewide Diagnostic Imaging Services and Second Opinions tion,” for the Encyclopedia of Software Engineering. He Deposition, Arbitration and Trial Support holds the CDP, is a member of ACM, NSPE, a senior Pre-trial Research and Education member of IEEE Computer Society, and a professional Liens Accepted on Primary Imaging Studies engineer in California. Formal education includes a BSEE from Loyola University and a master of engineering from 6200 Wilshire Blvd, Suite 1008, Los Angeles, CA 90048 UCLA. (800) 222-6768 ¥ (323) 933-5100 ¥ Fax (323) 933-4966 GREAT SCOTT ENTERPRISES Web addresses: www.themripeople.com ¥ www.msus.com ¥ www.breader.com P.O. Box 42047, Tucson, AZ 85733, (866) 795-7166, E-mail address: [email protected] (520) 722-6796, e-mail: [email protected]. Web site: www.great-scott.com. Contact Scott Greene, CEO/CIO. The professional computer consulting and computer forensics firm with 20+ years’ experience, computer forensics consulting specializing in recovery, acquisition, preservation, and analysis of data as evidence, including data purposefully destroyed. Proper handling techniques can save data from Web sites, files, fax machines and e- mails. Expert witness testimony for both plaintiffs and defendants in court and arbitration cases. Skilled at data- bases, source code copyright, documents, e-mails, images, accounting systems, hacking events, and pass- word cracking.

COMPUTERS/INFORMATION SECURITY

ONLINE SECURITY 5870 West Jefferson Boulevard, Suite A, Los Angeles, CA 90016, (310) 815-8855, fax (310) 815-8808, e-mail: glen @onlinesecurity.com. Web site: www.onlinesecurity.com. Contact Glen Hastings. At OnlineSecurity our mission is protecting digital assets worldwide through three interlock- ing service lines: IT forensic, consulting and investigations, and information security. Our IT forensic practice includes computer and network forensics and forensic evidence har- vesting. Our consulting and investigations practice includes discovery strategy and expert witness testimony. Information security provides computer security and compliance consulting services to our clients. See display ad on page 76.

CONSTRUCTION

ABACUS PROJECT MANAGEMENT, INC. 20201 Southwest Birth Street, Suite 240, Newport Beach, CA 92660, (949) 851-1015, fax (949) 851-0409, e-mail: jﬂ[email protected]. Web site: www.abacuspm .com. Contact John Flynn. Expert witness. Cost estima- tion, construction management analysis, delay analysis, and professionally trained mediator and arbitrator. Lead expert with over 40+ years’ experience in construction industry. Testiﬁed on 20 occasions in superior court.

Los Angeles Lawyer November 2004 53 FORENSISGROUP Architectural and Construction Technical Services 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA (“F.A.C.T.S.”) 40-plus years’ diverse experience. Com- 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- mercial/residential $100k-$30m, expert witness, construc- 1950, e-mail: [email protected]. Web site: tion defects, codes, site inspection, coordination of ex- www.forensisgroup.com. Contact Mercy Steenwyk. perts, destructive testing, repair solutions, bidding and Thousands of our clients have gained the technical ad- costs, and allocation of responsibility and detailed re- vantage and the competitive edge in their cases from our ports. Certified mediator and arbitrator, dispute review resource group of high-quality experts in construction, en- board panelist. Trial support. Degrees/license: BA Arch; gineering, product liability, safety, environmental, acci- Cert Arch/NCARB/Gen Contr. Insurance appraiser, and dent reconstruction, automotive, failure analysis, fires, ex- mediator/arbitrator/DRB. plosions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scien- RIMKUS CONSULTING GROUP, INC. tific disciplines. We provide you with a select group of 333 City Boulevard West, Suite 1805, Orange, CA 92868, high-quality experts as expeditiously as possible. Unsur- (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski passed recruitment standards. Excellent client service. @rimkus.com. Web site: www.rimkus.com. Contact Curt See display ad on page 53. Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided re- GLENN M. GELMAN & ASSOCIATES, liable investigations, reports and expert witness testimony CERTIFIED PUBLIC ACCOUNTANTS AND around the world. Our engineers and consultants analyze BUSINESS CONSULTANTS the facts from origin and cause through extent of loss. 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- Services: construction defect and dispute analysis, vehi- 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. cle accident reconstruction, fire cause and origin, prop- Contact Glenn Gelman. Expert witness testimony, strat- erty evaluation, mold evaluations, indoor air quality as- egy development, document discovery, deposition assis- sessments, biomechanical analysis, product failure analy- tance, computation of damages, arbitration consulting, sis, foundation investigations, industrial accidents and ex- forensic accounting, investigative auditing, rebuttal testi- plosions, water intrusion analysis, geotechnical evalua- mony, fiduciary accountings, and trial exhibit preparation. tions, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, MPGROUP HVAC analysis, electrical failure analysis, and CONSTRUCTION CONSULTANTS • FORENSIC video/graphics computer animation. See display ad on EXPERT WITNESSES • MEDIATION page 69. 1202 Greenacre Avenue, West Hollywood, CA 90046- 5708, (323) 874-8973, toll free (800) 684-9100, fax (323) SCHWARTZ / ROBERT & ASSOCIATES, INC. 874-8948, email: [email protected]. Web site: 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- www.mpgroup.com. Contact Michael S. Poles, GC, CM, 1115, cell (818) 825-3247, fax (805) 777-1172, e-mail: RCI, DABFET, ACFE. MPGroup is a collaboration of ar- [email protected]. Web site: www.schwartzrobert chitects, engineers, contractors and other technical ex- .com. Contact Robert I. Schwartz, AIA. Real Property perts specializing in consulting, forensic expert witness, Development procedures & practices, all building types, and litigation support services since 1962. Specialty sizes & phases. Professional evaluation of building design areas: Accident reconstruction; Americans with Disabili- errors & omissions, building code compliance & profes- ties Act; building code compliance; building code stan- sional standards of practice. Forensic investigation of Construction Claims dards; claims analysis and mitigation; construction admin- construction defects. Repair cost estimates. Construction istration; construction defects; contract compliance; cost contract/subcontract performance—project management estimating; customs and practices; design and imple- administration & cost accounting, CPM scheduling, cost mentation; earthquake hazard; flooring and floor covering; estimating, change order administration, quality assur- When you’re handling a framing (wood and steel); geotechnical and hydrological; ance & building performance. Evaluation of delay claims. construction dispute, you’ll be personal injury; quality of workmanship; reinforced con- Documentation of major property/casualty insurance glad to know who we are. crete; reinforced masonry; roofing and waterproofing; losses. Excellent litigation support & trial exhibit prepara- safety and OSHA standards; scaffolding; scheduling and tion. Expert witness testimony. Experienced AAA arbitra- Pacific Construction delays; slips, trips and falls; steps, stairs and railings; tor & mediator. Large & complex cases. Member, Dispute Consultants, Inc. will assist in Standards of Care; Standards of Practice; structural fail- Resolution Boards. ure; structural steel and welding; water intrusion and uncovering and analyzing facts mold. See display ad on page 8. SPECTRUM DEVELOPERS important to your case. 1241 Flemington Road, Riverside, CA 92506, (909) 776-1194, PACIFIC CONSTRUCTION CONSULTANTS, INC. fax (909) 776-1196, e-mail: steve@spectrumdevelopers Our highly experienced staff (800) 655-PCCI. Contact marketing director. Construc- .com. Web site: www.spectrumdevelopers.com. Contact will provide support from the tion contract disputes (claims) analysis, prep and presen- Steve Koppes. Inspections, expert testimony, and con- first analysis to the last day in tation, delay and monetary impact evaluation, including sulting for construction defects related to swimming CPM schedules. Architectural, civil, structural, mechani- pools, fountains, and spas. courtÐinvestigating, making the cal, and electrical specialties. Full in-house courtroom vi- complex understandable, and sual exhibit preparation. Assistance in negotiations, medi- ULTIMO ORGANIZATION, INC. presenting evidence through ation, arbitration, and litigation. Expert witness testimony. 1411 East Borchard Avenue, Santa Ana, CA 92705, (714) 560-8999, fax (714) 560-8998, e-mail: yolana expert testimony and trial Additional phone (310) 337-3131 or (916) 638-4848. See display ad on this page. @geotechnical.com. Web site: www.geotechnical.com. support graphics. Contact Frank Ultimo. Estimating cost of repair of con- PCMI THE EXPERT CHOICE® struction defects. Hands-on construction experience both Pacific Construction 2402 Cross Street, Riverside, CA 92503, (800) 576-7264, commercial and residential for 40+ years’ experience in- Consultants, Inc. is responsive, fax (888) 307-7264, e-mail: [email protected], Web volving analysis design and construction include founda- factual, and results-oriented. site: www.pcmi.biz. Contact Scott Vivian. PCMI is a con- tion floor-level surveys, repair plans, and drawing, also struction consulting firm providing litigation, mediation, waterfront expertise, and environmental remediation, For more information, call and court testimony since 1982 for construction defects, structural engineering, geotechnical investigation, codes, 1-800-655-PCCI. delay claims, breach of contract, and personal injury. and accurate documentation and estimates. See display PCMI has provided expert services for both plaintiff and ad on page 58. defense. See display ad on page 60. URS R N RICE AIA ARCHITECT & ASSOCIATES, INC. 915 Wilshire Boulevard, Suite 1800, Los Angeles, CA ARCHITECT AND GENERAL CONTRACTOR 90017, (213) 996-2549, fax (213) 996-2521, e-mail: PACIFIC CONSTRUCTION 4973 Leeds Street, Simi Valley, CA 93063, (805) 577- [email protected]. Expert witness for enti- CONSULTANTS, INC. 9455, fax (805) 577-9457, e-mail: [email protected]. tlement, causation damages on design, construction, and Web site: www.jurispro.com/mem/richardrice. Forensic geotechnical environmental disputes. Experienced in all

54 Los Angeles Lawyer November 2004 types of construction projects. See display ad on diverse group of practitioners—CPAs, certified fraud ex- (1997) and Gangs in Court (Lawyers & Judges Publish- page 59. aminers, statisticians, economists, computer forensic ex- ers, January 2005). Consultant/expert witness in over perts, business valuation experts, and online research 150+ legal cases in various areas of criminality, especially CONSTRUCTION CLAIMS specialists. We also employ former senior law enforce- gangs (135+ gang cases). Also homicide, drug addiction, ment officials and agents from the FBI and other govern- company security liability, and responsibility. See Web KGA, INC. ment agencies. Services available worldwide. site. Appointed to the “Panel of Experts” approved by the 1205 North Coast Highway, Suite D, Laguna Beach, CA LA County Superior Court Judge’s Committee. See dis- 92651, (949) 497-600, fax (949) 494-4893, e-mail: socal CRIMINOLOGY/GANGS play ad on page 57. @kgainc.com. Web site: www.kgainc.com. Contact Kurt Grosz. Expert witness testimony for construction and en- DR. LEWIS YABLONSKY DISPUTE ANALYSIS vironmental disputes. Past cases include: toxic mold, 2311 Fourth Street, Suite 312, Santa Monica, CA 90405, property loss, delay and contract claims, code compli- phone and fax: (310) 450-3697, e-mail: expertwitness THE CAPANALYSIS GROUP, LLC ance, cost and method of repair, defect cause, surety, @lewyablonsky.com. Web site: www.lewyablonsky.com. 550 South Hope Street, Suite 1050, Los Angeles, CA bad faith, standards-of-care for contractors and design- Contact Dr. Lewis Yablonsky, PhD-NYU. Emeritus pro- 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: ers, and safety. Mr. Grosz is also a respected and well- fessor criminology, California State University Northridge. [email protected]. Web site: www.capanalysis known arbitrator. KGA experts have served as witnesses, Professor at other universities, including UCLA, University .com. Contact Laura Robinson, PhD. Specialties: eco- mediators, insurance appraisers, court appointed experts, of Massachusetts, Harvard, Texas A&M, and Columbia nomic, financial, accounting, and statistical analysis for and negotiators. University. Published 18 books on criminology and social complex litigation, arbitration, regulatory proceedings, problems, including Criminology (1990); Gangsters; and strategic corporate decision making. Assist attorneys ROEL CONSULTING GROUP A Division of Roel Construction Company 3366 Kurtz Street, San Diego, CA 92110, (619) 297-4156, ext. 303, fax (619) 297-5510, e-mail: [email protected]. Web site: www.roel.com. Contact Steve Grimes. Backed by 87 years of construction experience, the Roel Consult- ing Group offers a single source for tightly coordinated high-quality expert services. Our staff includes experts in virtually every field of construction specialization. We offer a wide variety of services to assist attorneys and their clients, including testing, intrusive investigations, reports, cost of repair analysis, mediation and litigation support. Serving California, Nevada, Arizona, Oregon, New Mexico and Utah. See display ad on page 51.

CONSTRUCTION INVESTIGATIONS

CORPORATE INVESTIGATIONS

THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics.

Los Angeles Lawyer November 2004 55 with discovery, identification of relevant economic and fi- of opposing experts, and expert testimony in federal and HOLLIS & ASSOCIATES nancial issues, preparation of analytical models, critique state courts, and before the FTC and DOJ. Areas of ex- 238 Pasadena Avenue, Suite 200, South Pasadena, CA of opposing experts, and expert testimony in federal and pertise include antitrust (including cutting-edge analyses 91030-2920, e-mail: [email protected]. Con- state courts, and before the FTC and DOJ. Areas of ex- of market definition, market power, coordinated interac- tact Michael R. Hollis, MBA, MA (Econ). Economic dam- pertise include antitrust (including cutting-edge analyses tions, and unilateral effects), economic damages, busi- ages analysis and expert witness testimony regarding of market definition, market power, coordinated interac- ness valuation, investigative and forensic accounting and personal injury, wrongful death, earning capacity, house- tions, and unilateral effects), economic damages, busi- auditing, intellectual property (including patent, trade- hold services, wrongful termination, employment discrimi- ness valuation, investigative and forensic accounting and mark, and copyright infringement, and valuation of intel- nation, sexual harassment, medical malpractice, business auditing, intellectual property (including patent, trade- lectual property), insurance coverage, contract disputes damages (lost profits), products liability, and pediatrics. mark, and copyright infringement, and valuation of intel- and tort claims, mergers and acquisitions, and securities lectual property), insurance coverage, contract disputes fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs SANLI PASTORE & HILL, INC. and tort claims, mergers and acquisitions, and securities economics. 1990 South Bundy Drive, Suite 800, Los Angeles, CA fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- economics. DELOITTE & TOUCHE LLP dress: www.sphvalue.com. Contact Nevin Sanli or Tom 350 South Grand Avenue, Los Angeles, CA 90071, Pastore. Sanli Pastore & Hill, Inc. is a premier provider of DESMOND MARCELLO AND AMSTER (213) 688-4135, fax (213) 673-6719, e-mail: mspindler business valuation and valuation advisory services, spe- Southern California Office: 6060 Center Drive, Suite 825, @deloitte.com. Contact Michael Spindler, (213) 688- cializing in litigation support and expert witness testimony. Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, 4135, Mimi Justice, (714) 436-7026, or Tom Hughes, Services include valuations for goodwill loss, estate and fax (310) 216-0800. Northern California Office: 1485 Enea (619) 237-6583. Our highly skilled team is composed of a gift tax planning (family limited partnerships), lost profit Court, Suite 1330, Concord, CA 94520, (925) 674-3668, diverse group of practitioners—CPAs, certified fraud ex- analysis, mergers and acquisitions, goodwill impairment, fax (925) 674-3669. Web site: www.dmavalue.com. Con- aminers, statisticians, economists, computer forensic ex- fairness and solvency opinions, ESOPs, incentive stock tact Wes Nutten, Aaron Amster, or Madeleine Mamaux. perts, business valuation experts, and online research options, capital raises, corporate, partnership, and marital Litigation consulting, forensic accounting, expert witness specialists. We also employ former senior law enforce- dissolutions. Comprehensive economic, industry, and testimony, class action claims administration services, ment officials and agents from the FBI and other govern- market research. Extensive experience in expert witness and business valuation services. Staff qualifications in- ment agencies. Services available worldwide. testimony, pretrial preparation, and settlement negotia- clude CPA, CMA, ABV, CFA, and ASA designations. Tes- tions. See display ad on page 6. timony experience in numerous court jurisdictions. Estab- ECON ONE RESEARCH, INC. lished in 1968. See display ad on page 50. 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, SCHULZE HAYNES & CO. (213) 624-9600, fax (213) 624-6994, e-mail: lskylar 660 South Figueroa Street, Suite 1280, Los Angeles, CA WHITE, ZUCKERMAN, WARSAVSKY, LUNA, @econone.com. Web site: www.econone.com. Contact 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert WOLF & HUNT Lisa Skylar, general manager. Econ One is an economic @schulzehaynes.com. Web site: www.schulzehaynes 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA research and consulting firm of over 40 professionals with .com. Contact Karl J. Schulze or Dana Haynes, princi- 91423, (818) 981-4226, fax (818) 981-4278, and 363 San extensive experience with the litigation process. We un- pals. Specialties: forensic business analysis and account- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) derstand the need for clear, accurate, persuasive an- ing, lost profits, economic damages, expert testimony, 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw swers to complex problems. We work with our clients to discovery assistance, business and real estate valuations, .com. Contact Barbara Luna, Drew Hunt, Paul White, keep our efforts focused on necessary tasks, with close construction claims, corporate recovery, real estate trans- Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- attention to costs. We provide economic analysis and ex- actions, financial analysis and modeling, major profes- pert witness testimony for business, real estate, personal pert testimony in many areas, including: antitrust, contract sional organizations, and have experience across a broad injury, and marital dissolution. Investigative analysis of lia- disputes, damages analysis/calculations, intellectual spectrum of industries and business issues. Degrees/li- bility, damage analysis of lost profits, lost earnings, and property and patent infringement, market analysis, regula- censes: CPA; CVA; CFE; CMA; certified appraiser, PE; RE unjust enrichment, fraud investigation, business valuation, tion, stock price analysis and unfair competition. Industry broker. tax planning and preparation and mergers and acquisi- specialties include energy, biotechnology, computer tions. Testified hundreds of times as expert witnesses. hardware and software, manufacturing, telecommunica- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, Prior Big Four accounting firm experience. Specialties in- tions, and financial services. WOLF & HUNT clude accounting, antitrust, breach of contract, business 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA interruption, business dissolution, construction, fraud in- ECONOMIC CONSULTANTS & ASSOCIATES 91423, (818) 981-4226, fax (818) 981-4278, and 363 San vestigation, asset tracing analysis, intellectual property 2030 Main Street, Suite 1300, Irvine, CA 92614, (714) Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) (patent, trademark and copyright infringement and trade 547-6588, (310) 246-9993, fax (714) 547-9916, e-mail: 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw secrets), personal injury, product liability, professional [email protected]. Contact Stephen T. Riley, PhD. .com. Contact Barbara Luna, Drew Hunt, Paul White, malpractice, real estate, spousal support, tax, valuation of Quantifying losses in the following areas: P/I, wrongful Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- businesses, unfair advertising, unfair competition, and death, loss of household services, loss of earning capac- pert witness testimony for business, real estate, personal wrongful termination. See display ad on page 49. ity, medical/legal malpractice, business losses (lost prof- injury, and marital dissolution. Investigative analysis of lia- its), wrongful termination, and expert testimony. bility, damage analysis of lost profits, lost earnings, and ECONOMIC DAMAGES unjust enrichment, fraud investigation, business valuation, FULCRUM FINANCIAL INQUIRY tax planning and preparation and mergers and acquisi- BALLENGER, CLEVELAND & ISSA, LLC 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA tions. Testified hundreds of times as expert witnesses. 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte Prior Big Four accounting firm experience. Specialties in- 90024, (310) 873-1717, fax (310) 873-6600. Contact @fulcruminquiry.com. Web site: www.fulcruminquiry clude accounting, antitrust, breach of contract, business Bruce W. Ballenger, CPA, executive managing direc- .com. Contact David Nolte. Services include computer interruption, business dissolution, construction, fraud in- tor. Services available: assist counsel in determining forensics and electronic discovery involving litigation, em- vestigation, asset tracing analysis, intellectual property overall strategy. Help evaluate depositions and evidence. ployment matters, and fraud investigations. Our expertise (patent, trademark and copyright infringement and trade Provide well-prepared, well-documented, and persuasive includes accounting inspections and audits, damages secrets), personal injury, product liability, professional in-court testimony regarding complicated accounting, fi- analysis for litigation, business and intangible asset valua- malpractice, real estate, spousal support, tax, valuation of nancial, and business valuation matters, fairness of inter- tions, economic and market studies, and related expert businesses, unfair advertising, unfair competition, and est rates, feasibility of reorganization plans, fraudulent testimony. Fulcrum’s analysis and research, combined wrongful termination. See display ad on page 49. conveyances, bankruptcies, mergers and acquisitions, with persuasive presentation techniques, have resulted in and management misfeasance/malfeasance. More than an unequalled record of successful court cases and client ECONOMICS 100 open-court testimonies, federal and state, civil and recoveries. See display ad on page 2. criminal. See display ad on page 47. ADVISORS/EXPERTS @ MCS ASSOCIATES HIGGINS, MARCUS & LOVETT, INC. 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) THE CAPANALYSIS GROUP, LLC 800 South Figueroa Street, Suite 710, Los Angeles, CA 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates 550 South Hope Street, Suite 1050, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Web site: www.mcsassociates.com. Contact 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: .com. Contact Mark C. Higgins, ASA, president. The Norman Katz, managing partner. Nationally recognized [email protected]. Web site: www.capanalysis firm has over 20 years of litigation support and expert tes- banking, finance, and real estate consulting group (estab- .com. Contact Laura Robinson, PhD. Specialties: eco- timony experience in matters involving business valuation, lished 1973). Experienced litigation consultants/ nomic, financial, accounting, and statistical analysis for economic damages, intellectual property, loss of business experts include senior bankers, lenders, consultants, complex litigation, arbitration, regulatory proceedings, goodwill, and lost profits. Areas of practice include busi- economists, accountants, insurance underwriters/brokers. and strategic corporate decision making. Assist attorneys ness disputes, eminent domain, bankruptcy, and corpo- Specialties: lending customs, practices, policies, in all with discovery, identification of relevant economic and fi- rate and marital dissolution. See display ad on page 47. types of lending (real estate, business/commercial, con- nancial issues, preparation of analytical models, critique struction, consumer/credit card), banking operations/ad-

56 Los Angeles Lawyer November 2004 ministration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, ap- LEGAL MALPRACTICE, ETHICS AND praisal, escrow, and construction defects/disputes, and FEE DISPUTE EXPERT WITNESS title insurance.

THE CAPANALYSIS GROUP, LLC BOYD S. LEMON, ESQ. 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: 38 YEARS TRIAL EXPERIENCE; RETAINED EXPERT [email protected]. Web site: www.capanalysis IN MORE THAN 600 CASES; FORMER MAJOR LAW .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR complex litigation, arbitration, regulatory proceedings, DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE and strategic corporate decision making. Assist attorneys ARBITRATOR; COURT APPOINTED MEDIATOR. with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and 310/827-0840 • www.legalmalexpert.com state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and DR. LEWIS YABLONSKY – CRIMINOLOGY/GANGS auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intel- ✔ Consultant/Expert Witness in over 150+ legal cases in various areas of criminality, especially gangs lectual property), insurance coverage, contract disputes (135+ cases). Also homicide, drug addiction, company security liability, and responsibility. See Web and tort claims, mergers and acquisitions, and securities site. Appointed as an expert witness in over 80 courts in California and on a national level. Appointed fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs to the Los Angeles County Superior Court “Panel of Experts.” economics. ✔ Published 19 Books on criminology and social problems, including Criminology (1990); Gangsters: COHEN, MISKEI & MOWREY LLP 50 Years of Madness, Drugs, and Death on the Streets of America (1997), and Juvenile Delinquency 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA (2000) and Gangs In Court (to be published in January, 2005). 91403, (818) 986-5070, fax (818) 986-5034, e-mail: ✔ PhD – NYU Emeritus Professor Criminology, California State University Northridge. Professor at other [email protected]. Contact Scott Mowrey. Spe- universities, including UCLA, University of Massachusetts, Harvard, Texas A&M, and Columbia cialties: consultants who provide extensive experience, lit- University. igation support, and expert testimony regarding forensic PHONE/FAX 310.450.-3697 • E-MAIL [email protected] accountants, fraud investigations, economic damages, WEB SITE www.lewyablonsky.com business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display 2311 FOURTH STREET, SUITE 312, SANTA MONICA, CA 90405 ad on page 41.

DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 688- 4135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud ex- SECURITIES aminers, statisticians, economists, computer forensic experts, business valuation experts, and online research Securities Law specialists. We also employ former senior law enforcement officials and agents from the FBI and other govern- Federal Securities Law Enforcement ment agencies. Services available worldwide. International Securities Regulation Insider Trading ECON ONE RESEARCH, INC. 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, NYSE, AMEX, NASD Disciplinary Proceedings (213) 624-9600, fax (213) 624-6994, e-mail: lskylar Broker-Dealer, Investment Company & Investment Adviser Matters @econone.com. Web site: www.econone.com. Contact Liability Under Federal & State Securities Laws Lisa Skylar, general manager. Econ One is an economic Public & Private Offerings research and consulting firm of over 40 professionals with Internet Securities extensive experience with the litigation process. We understand the need for clear, accurate, persuasive an- Securities Arbitration swers to complex problems. We work with our clients to Law Firm Liability keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual Robert C. Rosen property and patent infringement, market analysis, regula- Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. Over tion, stock price analysis and unfair competition. Industry 30 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, specialties include energy, biotechnology, computer Washington D.C. Published Author of Securities Regulations, including nine volume treatise. hardware and software, manufacturing, telecommunica- tions, and financial services. HAMILTON, RABINOVITZ & ALSCHULER, INC. Rosen & Associates, P.C. 2800 28th Street, Suite 325, Santa Monica, CA 90405, LAW OFFICES (310) 581-0900, fax (310) 581-0910. Contact Paul J. California Plaza • 300 S. Grand Avenue, Suite 2700 • Los Angeles, CA 90071 Silvern, partner. Public policy, finance, and management consultants providing litigation support, simulation, and TEL 213/362-1000 ■ FAX 213/362-1001 modeling to courts and corporate/public litigants in land Web site: Rosen-law.com E-mail: [email protected] use, real estate development, environmental protection, mass tort (including toxic tort), insurance, finance, hous-

Los Angeles Lawyer November 2004 57 ing, minority rights, education, and employment cases. Contact Dr. Malcolm Lewis, PE. Construction-related HAIGHT CONSULTING Degrees/license: MBAs, PhDs, cert. planners, MPAs, engineering, plumbing, mechanical (heating, ventilating, 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) MCPs. A/C) and electrical (power, lighting), energy systems, resi- 454-2988, fax (310) 454-4516. Contact Marcia Haight. dential and nonresidential buildings, construction defects, Human resources expert knowledgeable in both federal SANLI PASTORE & HILL, INC. construction claims, and mold. and California law. Twenty-five years’ corporate human re- 1990 South Bundy Drive, Suite 800, Los Angeles, CA sources management experience plus over 15 years as a 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- ELECTRONIC DISCOVERY Human Resources Compliance Consultant in California. dress: www.sphvalue.com. Contact Nevin Sanli or Tom Specializations include sexual harassment, ADA/disability Pastore. Sanli Pastore & Hill, Inc. is a premier provider of FULCRUM FINANCIAL INQUIRY discrimination, other Title VII and FEHA discrimination and business valuation and valuation advisory services, spe- 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA harassment, retaliation, FMLA/CFRA, safety, and wrongful cializing in litigation support and expert witness testimony. 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte termination. Courtroom testimony and deposition experi- Services include valuations for goodwill loss, estate and @fulcruminquiry.com. Web site: www.fulcruminquiry.com. ence. Retained 60% for defense, 40% for plaintiff. Audit gift tax planning (family limited partnerships), lost profit Contact David Nolte. Services include computer foren- employer’s actions in preventing and resolving discrimi- analysis, mergers and acquisitions, goodwill impairment, sics and electronic discovery involving litigation, employ- nation, harassment, and retaliation issues. Assess human fairness and solvency opinions, ESOPs, incentive stock ment matters, and fraud investigations. Our expertise in- resources policies and practices for soundness, for com- options, capital raises, corporate, partnership, and marital cludes accounting inspections and audits, damages parison to prevailing practices, and for compliance. Eval- dissolutions. Comprehensive economic, industry, and analysis for litigation, business and intangible asset valua- uate employer responsiveness to complaints and effec- market research. Extensive experience in expert witness tions, economic and market studies, and related expert tiveness of employer investigations. Assist counsel via testimony, pretrial preparation, and settlement negotia- testimony. Fulcrum’s analysis and research, combined preliminary case analysis, discovery strategy, examination tions. See display ad on page 6. with persuasive presentation techniques, have resulted in of documents, and expert testimony. an unequalled record of successful court cases and client ELECTRICAL recoveries. See display ad on page 2. BRIAN H. KLEINER, PHD Professor of Human Resource Management, California JAMES A. SMITH, CONSULTANT EMPLOYMENT State University, 800 North State College Boulevard, LH- 2562 Treasure Drive, #4102, Santa Barbara, CA 93105- 640, Fullerton, CA 92834, (714) 879-9705, fax (714) 879- 4104, (805) 687-7911, fax (805) 687-0832, e-mail: G. GOVINE CONSULTING 5600. Contact Brian H. Kleiner, PhD. Specializations in- [email protected]. Electrical accidents, consultant, 260 North Mar Vista, Suite #2, Pasadena, CA 91106- clude wrongful termination, discrimination, sexual harass- expert witness, electrocution, electric shock, analyzing 1413, (626) 564-0502, fax (626) 564-8702, e-mail: info ment, ADA, evaluation of policies and practices, reason- what happened and why, National Electric Code compli- @govineconsults.com. Web site: www.info@govineconsults able care, progressive discipline, conducting third-party ance, National Electric Safety Code compliance, protec- .com. Contact Dr. Gerda Govine. Specializes in employ- workplace investigations, retaliation, RIFs, statistics, negli- tive relaying, and equipment and product testing. De- ment discrimination, wrongful termination, deposition gent hiring, promotion selections, CFRA/FMLA, compen- gree/licenses: BSEE, MSEE. preparation, age discrimination, communications, training sation, wage and hours, ERISA, workplace violence, and and analysis, evaluation of human resource policies, ELECTRICAL ENGINEERING OSHA. Consultant to over 100 organizations. Over 500 practices, procedures, forms, handbooks, systems, and publications. Five-time winner of CSUF Meritorious Perfor- CTG FORENSICS, INC. evaluation of sexual harassment matters. Practices of em- 16 Technology Drive, Suite 109, Irvine, CA 92618, mance Award. Have given trial testimony in over 35 ployment discrimination, deposition preparation, and me- cases. (949) 790-0010, fax (949) 790-0020, e-mail: mlewis diation. See display ad on page 61. @CTGforensics.com. Web site: www.CTGforensics.com.

58 Los Angeles Lawyer November 2004 STEPHEN J. MOREWITZ, PHD & ASSOCIATES 5300 Bothwell Road, Tarzana, CA 91356, (818) 594-1587, fax (818) 345-9981, e-mail: [email protected]. Web Insurance Bad Faith Expert site: http//home.earthlink.net/~morewitz/ Contact Dr. Steve Morewitz. Sexual harassment and disability. Evalu- ates sexual harassment policies and procedures, sexual harassment impact, disability, rehabilitation, and quality of Clinton E. Miller, J.D., BCFE life losses. Provides other experts. Eighteen years of ex- Author: How Insurance Companies Settle Cases perience. Professor and former dean. Author of four books and 70 other publications. Outstanding Scholar 39 YEARS EXPERIENCE Book Award and other honors. Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide PERSONNEL SYSTEMS ASSOCIATES, INC. 7551 East Moonridge Lane, Anaheim, CA 92808, • Coverage Disputes • Customs and Practices in the Claims Industry (714) 281-8337, fax (714) 281-2949, e-mail: mding • Good Faith/Bad Faith Issues @personnelsystems.com. Web site: www.personnelsystems .com. Contact Mae Lon Ding, MBA, CCP. Expert witness (408) 279-1034 ■ FAX (408) 279-3562 in employment, business dispute, disability, and divorce cases involving issues of employee or owner compensation, discrimination, wrongful termination, exemption from overtime, labor market/employability, lost wages/benefits, employee performance, and evaluation of personnel poli- Matthew Lankenau cies and practices. Nationally recognized human re- 213-996-2549 source management and compensation consultant, [email protected] speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, URS is the nation’s largest engineering, consulting and construction Business Week, Workforce, and Working Woman. Over 14 services firm. URS specializes in the resolution of construction disputes. years of testifying in cases involving major national organizations in a large variety of industries involving multiple plaintiffs. MBA, Certified Compensation Professional. Dispute Resolution & Forensic Analysis Technical Expertise Design/Construction Claims Architecture EMPLOYMENT/WAGE EARNING CAPACITY Environmental Claims Engineering Bid/Cost/Damage Analysis Scheduling CALIFORNIA CAREER SERVICES Construction Defect Analysis Construction Management 6024 Wilshire Boulevard, Los Angeles, CA 90036, (323) Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing 933-2900, fax: (323) 933-9929, [email protected]. Web Expert Witness Testimony Environmental site: www.californiacareerservices.com. Contact Susan Insurance/Bond Claims Geotechnical W. Miller, MA. Vocational examinations/labor market research and testimony on employability and earning capacity as well as educational options in divorce and wrongful termination cases. BOARD CERTIFIED ORTHOPEDIC SURGEON PERSONNEL SYSTEMS ASSOCIATES, INC. 7551 East Moonridge Lane, Anaheim, CA 92808, (714) 281-8337, fax (714) 281-2949, e-mail: mding @personnelsystems.com. Web site: www.personnelsystems MARC J. FRIEDMAN, M.D. .com. Contact Mae Lon Ding, MBA, CCP. Expert witness 6815 Noble Avenue, Van Nuys, California 91405 in employment, business dispute, disability, and divorce cases involving issues of employee or owner compensa- Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected] tion, discrimination, wrongful termination, exemption from Web Site: www.scoi.com overtime, labor market/employability, lost wages/benefits, employee performance, and evaluation of personnel poli- Education: cies and practices. Nationally recognized human re- Princeton University and Cornell Medical School source management and compensation consultant, Certificate: Board Certified Orthopedic Surgeon speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, Memberships: Fellowship Sports Medicine Business Week, Workforce, and Working Woman. Over 14 Fellow American Academy of Orthopedic Surgeons years of testifying in cases involving major national organi- Fellow in the Arthroscopy Association of North America zations in a large variety of industries involving multiple Fellow in the International Arthroscopy Association plaintiffs. MBA, Certified Compensation Professional. Fellow in the International Knee Society Fellow in the American Orthopedic Society of Sports Medicine ENGINEERING ACL Study Group ACORN CONSULTING SERVICES, LLC Certified QME, IME, AME 2830 North Swan Road, Tucson, AZ 85712, (520) 322- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of 6150, fax (520) 327-0062, e-mail: billacorn@earthlink the Knee and Shoulder, and Knee Replacement .com. Web site: www.acs-eng.com. Contact William R. Acorn. PE. Over 30 years’ experience as a consulting en- Appointments: Assistant Clinical Professor, Division of Orthopedics, gineer providing value added technical consultation, UCLA School of Medicine, Chairman, Education Committee forensic analysis, and expert testimony. Specializing in Arthroscopy Association of North America 1997-1999 HVAC systems, cleanrooms, piping and refrigeration sys- World Cup Soccer Team Physician, 1985 tems, building and fire codes, design and construction is- Physician Specialist XXIII Olympiad 1984 sues, and hazardous occupancies. Successfully repre- Orthopedic Consultant–New York Knicks and Jets 1978-1985 sent plaintiffs, defendants and insurers in court, arbitration and mediation settings with claims up to $250 million. Publications: 60 Publications including handbook for Orthopedic Surgeons ACS provides a unique combination of practical, theoreti- on Prosthetic Ligament Reconstruction of the Knee cal, and teaching experience to support your litigation needs. Presentations: Lectures extensively with over 375 presentations worldwide

Los Angeles Lawyer November 2004 59 FORENSISGROUP 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- 1950, e-mail: [email protected]. Web site: www.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality experts in construction, engineering, product liability, safety, environmental, accident reconstruction, automotive, failure analysis, ﬁres, explosions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scien- tiﬁc disciplines. We provide you with a select group of high-quality experts as expeditiously as possible. Unsur- passed recruitment standards. Excellent client service. See display ad on page 53.

HICHBORN CONSULTING GROUP 1988 North Tustin Avenue, Orange, CA 92865, (714) 637- 7400, fax (714) 637-7488, e-mail: hichbornsr@hichborn. com. Web site: www.hichborn.com. Contact Geoffrey Hichborn Sr. General civil design with specialties featur- ing forensic investigations of concrete work and concrete products, concrete, cement and related materials expertise, construction practices and materials evaluation, repair recommendations, construction observation, public works/residential/commercial/industrial, and specially designed tests of distressed materials.

ENGINEERING/GEOTECHNICAL

COTTON, SHIRES AND ASSOCIATES, INC. 330 Village Lane, Los Gatos, CA 95030-7218, (408) 354- 5542, (408) 354-1852, e-mail: [email protected]. Web site: www.cottonshires.com. Contact Patrick O. Shires. Full service geotechnical engineering consulting firm specializing in investigation, design, arbitration, and expert witness testimony. Earth movement (settlement, soil creep, landslides, tunneling and expansive soil), foundation distress (movement and cracking of structures) drainage and grading (seeping slabs and ponding water in crawlspace), pavement and slabs (cracking and sepa- rating), retaining walls (movement, cracking and failures), pipelines, flooding and hydrology, design and construction deficiencies, expert testimony at over 64 trials in southern and northern California and Hawaii.

ENVIRONMENTAL

THE CAPANALYSIS GROUP, LLC 550 South Hope Street Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, Ph.D. Specialties: 1. Valuation of environmental liabilities and other legal claims using a decision tree approach that produces an accurate representation of liability cost versus the probability of those costs being incurred. 2. Provision of crucial information to help ensure that products or services meet the environmental, health, and safety requirements of the jurisdictions in which they do business. 3. Staff of Washington- based regulatory analysts monitor federal and state regulatory developments and interact with government officials to explain the interests of their clients. Degrees/license: hydrogeology, geology, environmental scientists.

HARGIS + ASSOCIATES, INC. 2365 Northside Drive, Suite C-100, San Diego, CA 92108, (800) 554-2744, (619) 521-0165, fax (619) 521-8580, e-mail: [email protected]. Web site: www.hargis.com. Contact David R. Hargis, PhD, RG. Expert witness testimony, technical consultation, and litigation support concerning hydrogeologic assessments to evaluate ground- water supply, basin studies, nature/extent of soil/ground- water contamination, source identiﬁcation, identiﬁcation of potentially responsible parties, cost allocation studies, and negotiations with USEPA and state regulatory agencies involving cleanup levels and approval of RI/FS/RD/RA documents for various state and federal Superfund sites. See display ad on page 63.

60 Los Angeles Lawyer November 2004 PACIFIC HEALTH & SAFETY CONSULTING, INC. initial in-house case screenings by 72 multidisciplinary 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065, physician partners. Medical experts are matched to meet e-mail: [email protected]. Web site: www.phsc-web case requirements by AMFS Physician Partners from our .com. Contact Tim Morrison. Providing quality consulta- panel of over 3,500 carefully prescreened board-certified tion and expert witness for mold, bacteria, lead, and as- practicing specialists in California. All recognized medical bestos. Certified training for all health and safety OSHA, specialties. Plaintiff and defense. Fast, thorough, objec- AQMD and FPT regulations. See display ad on page 64. tive, and cost-effective. Medical negligence, hospital and G. GOVINE CONSULTING managed care, personal injury, product liability, and toxic ZYMAX FORENSICS torts. “A 92 percent win record” –California Lawyer maga- Developing the Workforce for the 21st Century 71 Zaca Lane, San Luis Obispo, CA 93401-7300, (800) zine. See display ad on page 66. 644-4696, ext. 308, fax (805) 544-8226, e-mail: forensics LITIGATION CONSULTANT @zymaxusa.com. Web site: www.zymax.net/308. Contact EXPERT WITNESS WEB SITES Alan Jeffrey, sr. geochemist. Services: environmental AND EXPERT WITNESS: forensics and geochemistry consulting, litigation support, EXPERT4LAW—THE LEGAL MARKETPLACE EMPLOYMENT and expert witness testimony. Specialties: petroleum hy- (213) 896-6561, fax (213) 613-1909, e-mail: forensics drocarbon analysis, gas geochemistry, biomarkers, @lacba.org. Web site: www.expert4law.org. Contact SPECIALIZES IN: PNAs, PCBs, oxygenates, fuel ID, mixing ratios, age dat- Melissa Algaze. Still haven’t found who you’re looking ing, metal analysis by ICP/MS, inorganic and wet chem- for? Click here! expert4law—The legal Marketplace is ✔ SEXUAL HARASSMENT istry, stable isotope analysis, hydrology, and geothermal the best online directory for finding expert witnesses, ✔ EMPLOYMENT DISCRIMINATION: analytical. See display ad on this page. legal consultants, litigation support, lawyer-to-lawyer AGE, RACE, SEX networking, dispute resolution professionals, and law ESCROW office technology. This comprehensive directory is the ✔ HUMAN RESOURCES AND one-stop site for your legal support needs. Available ADVISORS/EXPERTS @ MCS ASSOCIATES EMPLOYMENT PRACTICES 24/7/365! Brought to you by the Los Angeles County ✔ 18881 Von Karman, Suite 1175, Irvine, CA 92612, Bar Association. WRONGFUL TERMINATION (949) 263-8700, fax (949) 263-0770, e-mail: info ✔ @mcsassociates.com. Web site: www.mcsassociates DEPOSITION PREPARATION FAILURE ANALYSIS ✔ .com. Contact Norman Katz, managing partner. MEDIATION Nationally recognized banking, finance, and real estate KARS ADVANCED MATERIALS, INC. consulting group (established 1973). Experienced litiga- Testing and Research Labs, 2528 West Woodland Drive, DR. GERDA GOVINE tion consultants/experts include senior bankers, lenders, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- consultants, economists, accountants, insurance under- 7169, e-mail: [email protected]. Web site: www.karslab 260 N. MAR VISTA, SUITE NO. 2 writers/brokers. Specialties: lending customs, practices, .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. PASADENA, CA 91106 policies, in all types of lending (real estate, business/ Southern California’s premier materials/mechanical/metal- TEL: 626/564-0502 commercial, construction, consumer/credit card), banking lurgical/structural/forensics laboratory. Registered profes- FAX: 626/564-8702 operations/administration, trusts and investments, eco- sional engineers with 20-plus years in metallurgical/foren- nomic analysis and valuations/damages assessment, in- sic/structural failure analysis. Experienced with automo- 800-564-0501 surance claims, coverages and bad faith, real estate bro- tive, bicycles, tires, fire, paint, plumbing, corrosion, and www.govineconsults.com kerage, appraisal, escrow, and construction defects/dis- structural failures. We work on both plaintiff and defen- putes, and title insurance. dant cases. Complete in-house capabilities for tests. Ex- tensive deposition and courtroom experience (civil and EXPERT REFERRAL SERVICE criminal investigations). Principals are fellows of American Society for Metals and board-certified diplomates, Ameri- FORENSIC EXPERT WITNESS ASSOCIATION can Board of Forensic Examiners. See display ad on 2402 Vista Nobleza, Newport Beach, CA 92660, (949) page 63. 640-9903, fax (949) 640-9911, e-mail: nsfox@forensic .org. Web site: www.forensic.org. Contact Norma S. Fox, FAMILY LAW executive director. Referral service and nonprofit professional association. Locates expert witnesses through COHEN, MISKEI & MOWREY LLP monthly meetings, workshops, and annual conference. 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, See display ad on page 45. CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Contact Scott Mowrey. TASA Specialties: consultants who provide extensive experi- 1166 DeKalb Pike, Blue Bell, PA 19422 (800) 523-2319, ence, litigation support, and expert testimony regarding fax (800) 329-8272. Customized referrals to local, na- forensic accountants, fraud investigations, economic tional, and global experts. Reduce search time to min- damages, business valuations, family law, bankruptcy, utes. Thousands of experienced specialists in more than and reorganization. Degrees/license: CPAs, CFEs, MBAs. 9,500 categories of expertise, including more than 875 See display ad on page 41. medical fields. Faxed resumes; risk-free screening phone calls. There is NO CHARGE FOR REFERRALS until you GLENN M. GELMAN & ASSOCIATES, designate or engage an expert. Categories include acci- CERTIFIED PUBLIC ACCOUNTANTS AND dent reconstruction, business, construction, communica- BUSINESS CONSULTANTS tion, engineering, economics, health care, intellectual 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- property, malpractice, mold, OSHA, personal injury, prod- 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. uct liability, safety, security, and toxicology. Plaintiff/de- Contact Glenn Gelman. Expert witness testimony, fense; civil/criminal cases. ADR. Exceptional personal ser- strategy development, document discovery, deposition vice since 1961. Contact the most experienced expert assistance, computation of damages, arbitration consult- and consultant source. WE HAVE YOUR EXPERT ®. ing, forensic accounting, investigative auditing, rebuttal Please see insert in this issue and display ad on testimony, fiduciary accountings, and trial exhibit page 68. preparation.

EXPERT WITNESS GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Angeles, AMFS, INC. (AMERICAN MEDICAL FORENSIC CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: SPECIALIST) [email protected]. Web site: www.gursey.com. 2640 Telegraph Avenue, Berkeley, CA 94704, (800) Contact David Swan, or Stephan Wasserman. Forensic 275-8903, (510) 549-1693, fax (510) 486-1255, e-mail: accounting and litigation support services in the areas of [email protected], Web page: www.amfs.com. marital dissolution, business valuation and appraisal, Contact Barry Gustin, MD, MPH, FACEP. AMFS is a goodwill, business disputes, malpractice, tax matters, physician and attorney managed company that provides bankruptcy, damage and cost-proﬁt assessments, insur-

Los Angeles Lawyer November 2004 61 ance claims, court accounting, tracing, and entertainment testimony, pretrial preparation, and settlement negotia- an unequalled record of successful court cases and client industry litigation. See display ad on page 55. tions. See display ad on page 6. recoveries. See display ad on page 2.

HARGRAVE & HARGRAVE WHITE, ZUCKERMAN, WARSAVSKY, LUNA, HAMILTON, RABINOVITZ & ALSCHULER, INC. 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) WOLF & HUNT 2800 28th Street, Suite 325, Santa Monica, CA 90405, 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA (310) 581-0900, fax (310) 581-0910. Contact Paul J. .com. Web site: www.taxwizard.com. Contact Terry M. 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Silvern, partner. Public policy, finance, and management Hargrave, CPA/ABV, CFE. Litigation services for family Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) consultants providing litigation support, simulation, and law and civil cases. Past chair of California Society of 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw modeling to courts and corporate/public litigants in land CPAs’ Family Law Section, business valuation instructor .com. Contact Barbara Luna, Drew Hunt, Paul White, use, real estate development, environmental protection, for California CPA Foundation and AICPA. Services in- Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- mass tort (including toxic tort), insurance, finance, hous- clude business valuations, income available for support, pert witness testimony for business, real estate, personal ing, minority rights, education, and employment cases. tracing separate property, litigation consulting, real estate injury, and marital dissolution. Investigative analysis of lia- Degrees/license: MBAs, PhDs, cert. planners, MPAs, litigation, mediation, fraud investigations, damage calcu- bility, damage analysis of lost profits, lost earnings, and MCPs. lation, and other forensic accounting work. unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisi- HAYNIE & COMPANY, CPAS KRYCLER, ERVIN, TAUBMAN, & WALHEIM tions. Testified hundreds of times as expert witnesses. 4910 Campus Drive, Newport Beach, CA 92660, (949) 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA Prior Big Four accounting firm experience. Specialties in- 724-1880, fax (949) 724-1889, e-mail: sgabrielson 91403, (818) 995-1040, fax (818) 995-4124. Web site: clude accounting, antitrust, breach of contract, business @hayniecpa.com. Web site: www.hayniecpa.com. [email protected]. Contact Michael J. Krycler. Litiga- interruption, business dissolution, construction, fraud in- Contact Steven C. Gabrielson. Alter ego, consulting and tion support, including forensic accounting, business ap- vestigation, asset tracing analysis, intellectual property expert witness testimony in a variety of practice areas: praisals, family law accounting, business and professional (patent, trademark and copyright infringement and trade commercial damages, ownership disputes, economic valuations, damages, fraud investigations, and lost earn- secrets), personal injury, product liability, professional analysis, business valuation, lost profits analysis, ings. Krycler, Ervin, Taubman and Walheim is a full-ser- malpractice, real estate, spousal support, tax, valuation of fraud/forensic investigations, taxation, personal injury, vice accounting firm serving the legal community for more businesses, unfair advertising, unfair competition, and wrongful termination, professional liability, and expert than 20 years. See display ad on page 72. wrongful termination. See display ad on page 49. cross examination. Extensive public speaking background assists in courtroom presentations. DIANA G. LESGART, CPA, CFE, AN ACCOUNTANCY CORP. FINANCE MIOD AND COMPANY, LLP CPAS 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, SANLI PASTORE & HILL, INC. 11600 Indian Hills Road, Building B, Suite 300, Mission (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 1990 South Bundy Drive, Suite 800, Los Angeles, CA Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- @msn.com. Contact Diana G. Lesgart, CPA, CFE. Spe- 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA cialized accounting and litigation support services in the dress: www.sphvalue.com. Contact Nevin Sanli or Tom 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod areas of family law litigation, tracing of assets, pension Pastore. Sanli Pastore & Hill, Inc. is a premier provider of @miod-cpa.com. Visit our Web site at www.miod-cpa.com. plan tracing, forensic accounting, business valuation, business valuation and valuation advisory services, spe- Contact Donald John Miod, CPA, ABV, CVA, CBA. goodwill, expert testimony, commercial litigation, fraud in- cializing in litigation support and expert witness testimony. More than 30 years’ experience in litigation support, investigations, economic damages, and real estate litiga- Services include valuations for goodwill loss, estate and cluding computation of income available for support, trac- tion. Over 20 years’ accounting experience with 16 years’ gift tax planning (family limited partnerships), lost profit ing, business valuations, fraud investigations, earnings litigation support specialization. Expert is fully analysis, mergers and acquisitions, goodwill impairment, loss calculations, and income tax matters. Our firm is very English/Spanish bilingual. fairness and solvency opinions, ESOPs, incentive stock computer-oriented, involving the use of computer graph- options, capital raises, corporate, partnership, and marital ics. We are members of the Institute of Business Apprais- LEWIS, JOFFE & CO, LLP ers, the International Society of CPAs (founding member), 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness the American Institute of CPAs, and California Society of 90024, (310) 475-5676, fax (310) 475-5268. Contact CPAs. See display ad on page 72. Brian Lewis, CPA, CVA. Forensic accounting, business testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. valuations, cash spendable reports, estate, and trust and FIRE/EXPLOSIONS income tax services. FINANCIAL THE MCMULLEN COMPANY, INC. MIOD AND COMPANY, LLP CPAS ADVISORS/EXPERTS @ MCS ASSOCIATES 1260 Lake Boulevard, Suite 250, Davis, CA 95616, (530) 11600 Indian Hills Road, Building B, Suite 300, Mission 757-1291, fax (530) 757-1293, e-mail: [email protected]. Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: info Web site: www.themcmullencompany.com. Contact 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA James F. McMullen. Former California state fire marshal. 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. Fire/building code analysis, code compliance inspections, @miod-cpa.com. Visit our Web site at www.miod-cpa.com. fire cause and origin investigation, fire services manage- Contact Donald John Miod, CPA, ABV, CVA, CBA. Nationally recognized banking, finance, and real estate consulting group (established 1973). Experienced litiga- ment review, emergency management planning and train- More than 30 years’ experience in litigation support, in- ing, hazardous materials programs, and fire safety-related cluding computation of income available for support, trac- tion consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance under- product analysis. Forensic fire expert and litigation con- ing, business valuations, fraud investigations, earnings sultation. loss calculations, and income tax matters. Our firm is very writers/brokers. Specialties: lending customs, practices, computer-oriented, involving the use of computer graph- policies, in all types of lending (real estate, business/ RIMKUS CONSULTING GROUP, INC. ics. We are members of the Institute of Business Apprais- commercial, construction, consumer/credit card), banking 333 City Boulevard West, Suite 1805, Orange, CA 92868, ers, the International Society of CPAs (founding member), operations/administration, trusts and investments, eco- (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski the American Institute of CPAs, and California Society of nomic analysis and valuations/damages assessment, in- @rimkus.com. Web site: www.rimkus.com. Contact Curt CPAs. See display ad on page 72. surance claims, coverages and bad faith, real estate bro- Yaworski. Rimkus Consulting Group is a full-service kerage, appraisal, escrow, and construction defects/dis- forensic consulting firm. Since 1983, we have provided re- SANLI PASTORE & HILL, INC. putes, and title insurance. liable investigations, reports and expert witness testimony 1990 South Bundy Drive, Suite 800, Los Angeles, CA around the world. Our engineers and consultants analyze 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA the facts from origin and cause through extent of loss. dress: www.sphvalue.com. Contact Nevin Sanli or Tom Services: construction defect and dispute analysis, vehi- Pastore. Sanli Pastore & Hill, Inc. is a premier provider of 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. cle accident reconstruction, fire cause and origin, prop- business valuation and valuation advisory services, spe- erty evaluation, mold evaluations, indoor air quality as- cializing in litigation support and expert witness testimony. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employ- sessments, biomechanical analysis, product failure analy- Services include valuations for goodwill loss, estate and sis, foundation investigations, industrial accidents and ex- gift tax planning (family limited partnerships), lost profit ment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages plosions, water intrusion analysis, geotechnical evalua- analysis, mergers and acquisitions, goodwill impairment, tions, construction accidents, construction disputes, fi- fairness and solvency opinions, ESOPs, incentive stock analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert nancial analysis and assessments, forensic accounting, options, capital raises, corporate, partnership, and marital HVAC analysis, electrical failure analysis, and dissolutions. Comprehensive economic, industry, and testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in video/graphics computer animation. See display ad on market research. Extensive experience in expert witness page 69.

62 Los Angeles Lawyer November 2004 FORENSIC ACCOUNTING

BALLENGER, CLEVELAND & ISSA, LLC 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA 90024, (310) 873-1717, fax (310) 873-6600. Contact Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive in-court testimony regarding complicated accounting, ﬁ- nancial, and business valuation matters, fairness of interest rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and management misfeasance/malfeasance. More than 100 open-court testimonies, federal and state, civil and criminal. See display ad on page 47.

DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www.dmavalue.com. Con- tact Wes Nutten, Aaron Amster, or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualiﬁcations include CPA, CMA, ABV, CFA, and ASA designations. Tes- timony experience in numerous court jurisdictions. Estab- lished in 1968. See display ad on page 50.

FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. THE BEST LEGAL MINDS

GUMBINER, SAVETT INC. 1723 Cloverfield Boulevard, Santa Monica, CA 90404, IN THE COUNTRY (310) 828-9798, fax (310) 829-7853, e-mail: rgreene @gscpa.com. Contact Ronald S. Greene, Executive TALK TO US Vice President. Expert witness testimony, lost profits and damages calculations, assets and income tracing, fraud analyses and audits, family law accounting, business valuations, income tax and estate tax support, standard of ¥ Metallurgical Failures ¥ Bio-Medical/Orthopedic Implants care analyses, and royalty and contract audits. ¥ Corrosion & Welding Failures ¥ Plumbing/Piping/ABS Failures NANCY A. KEARSON, CPA, ABV, CVA, DABFA ¥ Glass & Ceramic Failures ¥ Complete In-House Laboratory 1801 Century Park East, Suite 2400, Los Angeles, CA 90067, (310) 785-9614, fax (310) 277-1278, e-mail: ¥ Chairs / Ladders / Tires Testing & Analysis Facilities [email protected]. Contact Nancy Kearson. Spe- ¥ Automobile/Aerospace/ ¥ Expert Witnesses/Jury Verdicts cialties: solid, cost-effective, timely expert witness and consultation services, investigative forensic accounting, Accidents ¥ Licensed Professional Engineers asset tracing, loss of earnings calculations, partnership and shareholder disputes, business valuation, and profes- Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE sional practice appraisal. Director, California Society of CPAs-LA. Immediate past Officer, Family Law Section. Li- Dr. Ramesh Kar, Fellow ASM, Fellow ACFE censes and accreditations: Certified Public Accountant, Accredited in Business Valuation, Certified Valuation Ana- lyst, Diplomate of the American Board of Forensic Ac- countants. ADVANCED MATERIALS, INC. FRAUD INVESTIGATIONS Testing & Research Labs DESMOND MARCELLO AND AMSTER 2528 W. Woodland Drive Southern California Office: 6060 Center Drive, Suite 825, Anaheim, CA 92801 Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, ■ TEL: (714)527-7100 fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, ■ FAX: (714)527-7169 fax (925) 674-3669. Web site: www.dmavalue.com. Con- ■ www.karslab.com ■ email: [email protected] tact Wes Nutten, Aaron Amster, or Madeleine Mamaux.

Los Angeles Lawyer November 2004 63 EXPERT – PSYCHIATRY Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, JEFF SUGAR, MD and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. Tes- Child, Adolescent & timony experience in numerous court jurisdictions. Estab- Adult Psychiatrist lished in 1968. See display ad on page 50. Associate Clinical Professor, UCLA STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA A practicing psychiatrist 90404, (310) 453-9400, fax (310) 453-1187, e-mail: for 15 years, he is board [email protected]. Web site: www.sjaccounting certified in child and .com. Contact Jeffrey Sumpter, director of financial re- general psychiatry. He is covery. Stonefield Josephson, Inc. is a California-based Past President of the Southern California Society certified public accounting and business advisory firm of Child and Adolescent Psychiatry and Associate founded in 1975. Our services include assurance/account- Clinical Professor at UCLA. As founding director of ing, business consulting (profit enhancement, finance research at Hathaway Children and Family Services sourcing, mergers and acquisitions, family-owned busi- he led a study of the long-term effects of trauma. ness, succession planning, executive incentive compen- Currently Chief of Child Inpatient at Kedren Com- sation, business plans and budgeting); business valua- munity Health Center and in private practice-general tion, financial recovery, forensic services, litigation sup- and child psychiatry. port, public companies services, and tax consulting and Dr. Sugar’s reports and/or testimony have had compliance. Service area: throughout the United States an impact in cases (both child and adult) involving: and internationally. See display ad on page 9. •Trauma: Sexual and Physical Abuse (with or without PTSD) HEALTHCARE •Personal Injury and Workers’ Compensation •Psychiatric Medication Issues SINAIKO HEALTHCARE CONSULTING, INC. •Diagnosis and Appropriate Treatment 1100 Glendon Avenue, Suite 1800, Los Angeles, CA •Ethical issues and Stress in Legal Practice 90024, (310) 826-4935, fax (310) 826-4212, e-mail: jeff •Battered Woman’s Syndrome @sinaikohc.com. Web site: www.sinaikohc.com. •Child Custody Contact Jeff Sinaiko. Sinaiko is a nationally recognized healthcare consulting firm. Our professionals are hand- –FREE Initial Telephone Consultation with Attorney– picked for their broad understanding of the industry, de- ATTORNEY REFERENCES AND/OR REDACTED PAST tailed expertise and superior communication skills. REPORTS AVAILABLE ON REQUEST. Clients have found this expertise invaluable in litigation TEL: (310) 322-6933 | E-MAIL: [email protected] support where there is no substitute for experience. Sinaiko’s litigation support practice includes, among oth- 312 E SYCAMORE AVE, EL SEGUNDO, CA 90245 ers, industry standard practices evaluations: Medicare/ Medicaid fraud; provider/payor payment disputes; business valuation; transaction disputes; and facility and professional fee billing. GARY ORDOG, MD HEIR SEARCH SERVICE AMERICAN RESEARCH BUREAU (FACEP, FAACT, FABME, FABFE, FABPS) Offices in Los Angeles, Salt Lake City, Fort Lauderdale, and New York. (800) 628-7221, fax (800) 446-2626, e-mail: [email protected]. Web site: www.arb.com. Contact 23206 LYONS AVE., SUITE 104, SANTA CLARITA, CA 91321 Thomas Nelson. International probate research since PHONE: (661) 799-1689 ■ FAX: (661) 799-3453 1935. American Research Bureau (ARB) identifies and locates missing and unknown heirs. ARB performs a com- E-MAIL: [email protected] ■ WEBSITE: http://dwp.bigplanet.com/toxic plimentary initial evaluation, provides a written quote with deadline and prepares all needed documentation, includ- Board Certified in: ing certified records, a genealogical chart, and declarations. Fees can be structured in various ways to best meet ■ ■ the needs of your situation. CA State licensed PI # 11726. American Board of Professor of Medicine, UCLA– Service area: United States and most foreign countries. Emergency Medicine 1985-1997 ■ American College of Emergency ■ Board Examiner, American HOTEL Physicians Board of Emergency Medicine, MAURICE ROBINSON & ASSOCIATES LLC ■ American Board of Medical 1984-2000 880 Apollo Street, Suite 125, El Segundo, CA 90245, Toxicology ■ 25 years experience (310) 640-9656, fax (310) 640-9276, e-mail: maurice ■ American Board of Forensic ■ Full-time, front-line physician @mauricerobinson.com. Web site: www.mauricerobinson Examiners ■ .com. Contact R. Maurice Robinson, president. Hotel 42 text books and real estate industry business issues, including mar- ■ American Board of Medical ■ 800+ Articles ket, economic and financial feasibility, valuation, and dis- Examiners ■ 2,000+ cases reviewed putes between owner-operator, borrower-lender, and ■ franchisor-franchisee. Fluent in management contracts, li- American Board of ■ 300+ depositions Psychological Specialities cense agreements, ground and building leases, partner- ■ (Traumatic Stress and Disability 100+ trials ship and JV agreement, concession contracts, development agreements, and loan docs. Can estimate damages Assessment) ■ Stachybotrys, mold ■ and appraise property values under multiple scenarios. ■ Residency and Fellowship Criminal and civil; defense & Expert witness testimony, litigation strategy, consultation trained plaintiff 50/50 and support, damage calculations, lost profits analysis, ■ Wound ballistics, gunshot ■ Medical consultation and real estate appraisals, deal structuring, workouts, new wounds, taser injuries. treatment, case review, expert development, strategic planning, market demand assess- witness ment, acquisition due diligence, and economic, financial, and investment analysis.

64 Los Angeles Lawyer November 2004 HUMAN FACTORS THE CAPANALYSIS GROUP, LLC INSURANCE BAD FAITH 550 South Hope Street, Suite 1050, Los Angeles, CA D. WYLIE ASSOCIATES 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: M & Z CLAIMS SERVICE INC. P.O. Box 60836, Santa Barbara, CA 93160, (805) 681- [email protected]. Web site: www.capanalysis 18032-C Lemon Drive, PMB 164, Yorba Linda, CA 92886, 9289, fax (805) 681-9299. Web site: www.drivingfatigue .com. Contact Laura Robinson, PhD. Specialties: eco- (714) 777-4462, fax (714) 777-4507, e-mail: manoz .com. Contact Dennis Wylie. Internationally recognized nomic, financial, accounting, and statistical analysis for @pacbell.com. Web site: www.insuranceclaimsepert.com. human factors expert on driver error, inattention, fatigue, complex litigation, arbitration, regulatory proceedings, Contact Frank T. Zeigon. Specializing in claim handling car, truck, and bus driver skill and knowledge require- and strategic corporate decision making. Assist attorneys custom and practice, claim adjusting, coverage interpre- ments, driver and motor carrier standards of care, hours with discovery, identification of relevant economic and fi- tation, SIU practices, and auditing procedures. This in- of service violations, circadian rhythms, sleep debt, im- nancial issues, preparation of analytical models, critique cludes complex claim handling issues, and claim commu- paired vigilance, alertness, decision making, reaction of opposing experts, and expert testimony in federal and nity standards. Mr. Zeigon has served as an expert wit- time, and control responses. See display ad on state courts, and before the FTC and DOJ. Areas of ex- ness, appraiser/umpire, and mediator. Mr. Zeigon is ex- page 50. pertise include antitrust (including cutting-edge analyses perienced in auto, general liability, and property claims. of market definition, market power, coordinated interac- HAYNIE & COMPANY, CPAS tions, and unilateral effects), economic damages, busi- INTELLECTUAL PROPERTY 4910 Campus Drive, Newport Beach, CA 92660, (949) ness valuation, investigative and forensic accounting and 724-1880, fax (949) 724-1889, e-mail: sgabrielson SANLI PASTORE & HILL, INC. auditing, intellectual property (including patent, trade- @hayniecpa.com. Web site: www.hayniecpa.com. 1990 South Bundy Drive, Suite 800, Los Angeles, CA mark, and copyright infringement, and valuation of intel- Contact Steven C. Gabrielson. Alter ego, consulting and 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- lectual property), insurance coverage, contract disputes expert witness testimony in a variety of practice areas: dress: www.sphvalue.com. Contact Nevin Sanli or Tom and tort claims, mergers and acquisitions, and securities commercial damages, ownership disputes, economic Pastore. Sanli Pastore & Hill, Inc. is a premier provider of fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs analysis, business valuation, lost profits analysis, business valuation and valuation advisory services, spe- economics. fraud/forensic investigations, taxation, personal injury, cializing in litigation support and expert witness testimony. wrongful termination, professional liability, and expert E.L. EVANS ASSOCIATES Services include valuations for goodwill loss, estate and cross examination. Extensive public speaking back- 3310 Airport Avenue, Box 2, Santa Monica, CA 90405, gift tax planning (family limited partnerships), lost profit ground assists in courtroom presentations. (310) 559-4005, fax (310) 390-9669, e-mail: elevans66 analysis, mergers and acquisitions, goodwill impairment, @yahoo.com. Contact Gene Evans. Good faith/bad faith. fairness and solvency opinions, ESOPs, incentive stock INFERTILITY Over 40 years’ experience—claims adjuster, good options, capital raises, corporate, partnership, and marital faith/bad faith, standards and practices in the industry, dissolutions. Comprehensive economic, industry, and GIL N. MILEIKOWSKY, MD market research. Extensive experience in expert witness 1 claims litigation support, claims consultation, case review Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen and evaluation, property/casualty claims, construction testimony, pretrial preparation, and settlement negotia- Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or claims, uninsured/underinsured motorist claims, general tions. See display ad on page 6. (818) 981-1888, fax (310) 858-1303 or fax (818) 981-1994. liability, fire/water claims, and suspected fraud claims. CV Web site: www.baby4you.net. Contact Gil N. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, on request. See display ad on page 50. Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparo- WOLF & HUNT scopy, and reproductive endocrinology. Diplomate, board LAUNIE ASSOCIATES, INC. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA certified by the American Board of OB/GYN. Board eligi- 1165K Tunnel Road, Santa Barbara, CA 93105, (805) 91423, (818) 981-4226, fax (818) 981-4278, and 363 San ble, American Board of Reproductive Endocrinology Divi- 569-9175, fax (805) 687-8597, e-mail: [email protected]. Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) sion. Fellow, American College of OB/GYN. Member of Contact Joseph J. Launie, PhD, CPCU, insurance pro- 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw the American Society for Reproductive Medicine, Society fessor, author and consultant. Over 25 years’ experi- .com. Contact Barbara Luna, Drew Hunt, Paul White, of Assisted Reproductive Technologies, former Medical ence as expert witness in state and federal courts. Coau- Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Director IVF (In Vitro Fertilization) at Northridge Hospital, thor of books and articles on underwriting, insurance Expert witness testimony for business, real estate, per- former Chairman Laser and Safety Committee at North- company operations, and punitive damages. Consulting, sonal injury, and marital dissolution. Investigative analysis ridge Hospital and member of the Los Angeles County expert witness on underwriting, company and agency op- of liability, damage analysis of lost profits, lost earnings, Medical Association. Author, numerous scientific papers erations, and bad faith. and unjust enrichment, fraud investigation, business valu- and articles published in peer review journals. Clinical in- ation, tax planning and preparation and mergers and ac- structor at USC. Clinical assistant professor, OB/GYN at LIBRX quisitions. Testified hundreds of times as expert wit- UCLA. See display ad on page 76. 2050 Pioneer Court, Suite 200E, San Mateo, CA 94403, nesses. Prior Big Four accounting firm experience. Spe- (650) 356-0440, fax (650) 356-0550, e-mail: beg@librx cialties include accounting, antitrust, breach of contract, INSURANCE .com. Web site: www.librx.com. Contact Brian E. Gagan, business interruption, business dissolution, construction, CPCU, senior consultant. Expert witness, litigation con- fraud investigation, asset tracing analysis, intellectual ADVISORS/EXPERTS @ MCS ASSOCIATES sultant on property and casualty coverages, broker ser- property (patent, trademark and copyright infringement 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) vices/duties. Experience: underwriting, 7 years; broker- and trade secrets), personal injury, product liability, pro- 263-8700, fax (949) 263-0770, e-mail: info@mcsassoci- age, 25 years; currently active as a risk management con- fessional malpractice, real estate, spousal support, tax, ates.com. Web site: www.mcsassociates.com. Contact sultant for corporations and public entities. Past president valuation of businesses, unfair advertising, unfair competi- Norman Katz, managing partner. Nationally recognized Society of Insurance Brokers, CA Insurance Broker’s Li- tion, and wrongful termination. See display ad on banking, finance, and real estate consulting group (estab- cense. page 49. lished 1973). Experienced litigation consultants/ experts include senior bankers, lenders, consultants, CLINTON E. MILLER, JD, BCFE INTERNAL MEDICINE/PULMONARY economists, accountants, insurance underwriters/brokers. 502 Park Avenue, San Jose, CA 95110, (408) 279-1034, Specialties: lending customs, practices, policies, in all fax (408) 279-3562, e-mail: [email protected]. Contact STEVEN M. SIMONS, M.D. types of lending (real estate, business/commercial, con- Clint Miller. Insurance expert regarding claims, under- 435 North Roxbury Drive, Suite 311, Beverly Hills, CA struction, consumer/credit card), banking operations/ad- writing, agent and brokers errors and omissions, cover- 90210, (310) 274-7303, fax (775) 249-8082, e-mail: ministration, trusts and investments, economic analysis age disputes, customs and practices, and bad faith. See [email protected]. Web site: www.simonsmd.com. and valuations/damages assessment, insurance claims, display ad on page 59. Pulmonary diseases, critical care, internal medicine. coverages and bad faith, real estate brokerage, ap- Twenty years’ experience—defense and plaintiff. Particu- THOMAS & ELLIOTT praisal, escrow, and construction defects/disputes, and lar interests include asthma, pulmonary embolism, and 12400 Wilshire Boulevard, Suite 400, Los Angeles, CA title insurance. deep venous thrombosis pneumonia. Clinical professor, 90025, (310) 571-2727, fax (310) 207-0900, e-mail: UCLA, former chief of staff, chief of pulmonary, chief of [email protected]. Web site: www.thomasandelliott.com. BARRY ZALMA, INC.; ZALMA INSURANCE medicine—Cedars-Sinai. CONSULTANTS Contact Deborah Stone. Coverage analysis of liability, 4441 Sepulveda Boulevard, Culver City, CA 90230, (310) property, auto, malpractice, health, disability, life, title, INVESTIGATIONS 390-4455, fax (310) 391-5614, e-mail: [email protected]. and fidelity insurance. Duty to defend, reservation of Web site: www.zalma.com or www.zic.bz. Contact Barry rights, Cumis, bodily injury, property damage, business BENCHMARK INVESTIGATIONS Zalma. Insurance coverage, insurance claims, insurance torts, privacy, bad faith, reasonableness of attorney’s 32158 Camino Capistrano, # A-415, San Juan Capistrano, bad faith consultant, and expert witness. Author of Insur- fees, and defense cost reimbursement claims. CA 92675, (800) 248-7721, fax (949) 248-0208, ance Claims—A Comprehensive Guide and Mold: A e-mail: [email protected]. Web site: www Comprehensive Claims Guide. .BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency. Professional investigations with em-

Los Angeles Lawyer November 2004 65 Serving Attorneys Since 1990 ■ phasis upon accuracy, detail, and expedience. Asset/ﬁ- EVALUATION nancial searches, background investigation, DMV AMFS ■ searches, domestic/marital cases, due diligence, process provides the most TESTING service, surveillance/photograph, witness location, and statements. LA branch plus correspondents nationwide. experienced ■ MEDICAL TREATMENT Multilingual agents. Fully insured. EXPERTS Neurology and Electromyography FULCRUM FINANCIAL INQUIRY for your case. 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA Neurotoxicology 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte Occupational/Environmental @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Medicine Contact David Nolte. Services include computer foren- Tried and True Approach… sics and electronic discovery involving litigation, employ- IDENTIFY: AMFS staff physicians provide free phone ment matters, and fraud investigations. Our expertise in- consultations and collaborate to screen your case for cludes accounting inspections and audits, damages a reasonable flat fee. TEL 415.381.3133 / FAX 415.381.3131 analysis for litigation, business and intangible asset valua- SELECT: AMFS staff physicians & attorneys provide Experts E-MAIL [email protected] matched specifically to your case from our pre-screened tions, economic and market studies, and related expert panel of Board-Certified specialists, nationwide. www.neoma.com testimony. Fulcrum’s analysis and research, combined ANALYZE: AMFS Experts "call it as they see it" assuring "beyond with persuasive presentation techniques, have resulted in a doubt" objectivity... and cases are reviewed quickly! an unequalled record of successful court cases and client TESTIFY: AMFS Experts will testify in support of their unbiased recoveries. See display ad on page 2. opinions. San Francisco "AMFS bridges law and medicine… ROBERT D. JONES INVESTIGATIONS more than 7,500 specialists in more Sacramento 263 West Olive, Suite 330, Burbank, CA 91502, (818) 209- than 80,000 cases since 1990 in medical negligence, hospital and Petaluma 5455, fax (818) 558-5900, e-mail: bjonespi2002@yahoo managed care liability, personal .com. Contact Bob Jones. Investigative services for at- injury, product liability, and toxic Richmond torneys, insurance companies, corporations, and individu- torts for plaintiff and defendant" IENCE als. Services include subrosa, AOE/COE, background EXPER Eureka RENCE checks, asset search, and fraud. Other services include E DIFFE TH Speak to one of our staff physicians with domestic/spousal investigations, interviews and witness just one phone call — at no charge to you. statements.

1-800-275-8903 SPECIALIZED INVESTIGATIONS www.amfs.com [email protected] www.medicalexperts.com 14530 Delano Street, Van Nuys, CA 91411, (818) 909- 9607, fax (818) 782-3012, e-mail: [email protected]. Web site: www.specialpi.com. Contact Richard Harer. Trial JONATHAN S. RUTCHIK, MD, MPH preparation, locates, computer forensics, statements, insurance, workers’ compensation, surveillance, employ- A Consulting Group Managed by Attorneys and Physicians 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 ment/labor, civil, criminal, asset searches, background checks, and information services. In business since 1982. Spanish- and Korean-speaking investigators.

LANDSCAPE ARCHITECTURE Over 35 years research and diverse RON KAMMEYER & ASSOCIATES, INC. expert witness experience. 2837 Kellogg Avenue, Corona, CA 92881, (951) 371- 2444, fax (951) 371-4719, e-mail: [email protected]. Accident Web site: www.kammeyer.com. Contact Ken Kammeyer, CLARB. Forensic landscape architects. Landscape construction, water use, irrigation CIMIS studies, ground Reconstruction maintenance, agriculture, turf grass management, site drainage, erosion control, and playground safety. Past For those ● LIGHTING & ILLUMINATION Light Intensity measurements, visual perception, times of president California State Board of Landscape Architects, who seek the sunset, twilight, moonrise/set. faculty at council UCLA extension, 32 years.

highest quality ● PRODUCT FAILURE ANALYSIS LAW ENFORCEMENT/SECURITY Medical devices, glass, chairs (all types), ladders. workmanship DANIEL R. SULLIVAN, DEPUTY CHIEF, ● BIOMECHANICS LAPD, RET. from a qualified Head, neck, spine, and rotator cuff injuries 76766 Daffodil Drive, Palm Desert, CA 92211, (818) expert. ● TRAFFIC ACCIDENT RECONSTRUCTION 590-2486, e-mail: [email protected]. Web site: Cars, trucks, pedestrian, bicycle. www.investigativeservices.com. Contact Dan Sullivan. ● FALL FROM HEIGHT Expert witness—use of force/police practices, event/facil- Stairways, balconies, platform, theatre pit, pole, ladders, chairs. ity security—consultant to cities of Los Angeles, Beverly Hills, U.S. Department of Justice. Qualified as expert over ● SLIP & FALL 150 times in superior/federal courts. Scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. LEGAL/CORPORATE LAW For a State of the art equipment and test facility. B. KEITH MARTIN FREE ROGERS, SHEFFIELD & CAMPBELL, LLP consultation 427 East Carrillo Street, Santa Barbara, CA 93101, (805) call (714) Fred M. Johnson, Ph.D 963-9721, fax (805) 966-3715, e-mail: kmartin@rshlaw Professor of Physics, Fellow Am. Physical Society, Consultant to ANSI/BIFMA, 526-6661 .com. Contact B. Keith Martin. Thirty-five years in the Member SAE, ASTM, SATAI, & ICC, Author Textbook + 60 scientific publications. boardroom. Corporate law expert for consulting or testimony. Deadlock, buy/sell enforcement, D and O liability TELEPHONE (714) 526-6661/FAX (714) 526-6662 and indemnification, securities law in private corporations, removal of directors, cumulative voting, provisional direc- POST OFFICE BOX 3011, FULLERTON, CALIFORNIA 92831 tors, stock options/purchase plans, capital structure, re- capitalization, mergers, acquisitions, dissenter’s rights, in-

66 Los Angeles Lawyer November 2004 voluntary dissolution. USC Law Review. Caltech BSEE. .com. Contact Laura Robinson, PhD. Specialties: eco- NEUROLEGAL SCIENCES, INC. Published author. Member, State Bar Corporations Com- nomic, financial, accounting, and statistical analysis for 4222 East Thomas Road, Phoenix, AZ 85018, (480) mittee. See display ad on page 40. complex litigation, arbitration, regulatory proceedings, 659-7771, fax (602) 667-9101, 1855 San Miguel Drive, and strategic corporate decision making. Assist attorneys Suite 23, Walnut Creek, CA 94596 (925) 933-5594, LEGAL MALPRACTICE with discovery, identification of relevant economic and fi- e-mail: [email protected]. Web site: www nancial issues, preparation of analytical models, critique .neurolegalsciences.com. Contact Dr. Catherine Klee. PHILLIP FELDMAN, BS, MBA, JD of opposing experts, and expert testimony in federal and Medical and legal records review; neuropsychological 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA state courts, and before the FTC and DOJ. Areas of ex- evaluations; consistency analysis (determination of weak 91403-3287, (310) LEG MALP (534-6257), fax (818) 986- pertise include antitrust (including cutting-edge analyses vs. strong points of case); case analysis supported by 1757, e-mail: [email protected]. Web site: www of market definition, market power, coordinated interac- scientific literature; assistance with requests for produc- .legalmalpracticeexperts.com. Contact Phillip Feldman, tions, and unilateral effects), economic damages, busi- tion and interrogatories; accompany your client to inde- BS, MBA, JD. Board certified in professional negligence- ness valuation, investigative and forensic accounting and pendent medical evaluations; selection of experts; prepa- legal et al by CA, ABA, ABPLA. Former Judge Pro Tem, auditing, intellectual property (including patent, trade- ration of case specific deposition inquiry for use with op- State Bar Prosecutor, Fee Dispute Arbitrator. Thirty-seven mark, and copyright infringement, and valuation of intel- posing experts; attendance; at opposing expert(s) depo- years as litigator/transactional attorney, supervising part- lectual property), insurance coverage, contract disputes sition(s); arrange, conduct and attend focus group(s); as- ner. Never failed to qualify or disqualified, and 23 years and tort claims, mergers and acquisitions, and securities sistance with preparation of settlement video, preparation as expert. Any standard of care, conduct, causation, fidu- fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs of Daubert challenge(s) and motion in limine; preparation ciary duty or fee dispute issues. Any transaction. Any liti- economics. of case-specific direct and cross examination inquiry; gation. Any underlying case. (Also defends lawyers be- medical and lay witness preparation; trial theme prepara- fore the State Bar). ECON ONE RESEARCH, INC. tion; and voir dire/jury selection. Service area is nation- 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, wide. See display ad on this page. BOYD S. LEMON (213) 624-9600, fax (213) 624-6994, e-mail: lskylar 330 Washington Boulevard, Suite 420, Marina del Rey, @econone.com. Web site: www.econone.com. Contact SANLI PASTORE & HILL, INC. CA 90292, (310) 827-0840, fax (310) 827-7890. Contact Lisa Skylar, general manager. Econ One is an economic 1990 South Bundy Drive, Suite 800, Los Angeles, CA Boyd S. Lemon. Experienced expert witness in legal mal- research and consulting firm of over 40 professionals with 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- practice and attorney fee dispute cases, 38 years of busi- extensive experience with the litigation process. We un- dress: www.sphvalue.com. Contact Nevin Sanli or Tom ness trial experience, extensive malpractice litigation ex- derstand the need for clear, accurate, persuasive an- Pastore. Sanli Pastore & Hill, Inc. is a premier provider of perience, retained expert witness in over 600 cases, for- swers to complex problems. We work with our clients to business valuation and valuation advisory services, spe- mer litigation department chairman major law firm, State keep our efforts focused on necessary tasks, with close cializing in litigation support and expert witness testimony. Bar disciplinary committee, and court appointed mediator attention to costs. We provide economic analysis and ex- Services include valuations for goodwill loss, estate and and arbitrator. See display ad on page 57. pert testimony in many areas, including: antitrust, contract gift tax planning (family limited partnerships), lost profit disputes, damages analysis/calculations, intellectual analysis, mergers and acquisitions, goodwill impairment, LITIGATION property and patent infringement, market analysis, regula- fairness and solvency opinions, ESOPs, incentive stock THE CAPANALYSIS GROUP, LLC tion, stock price analysis and unfair competition. Industry options, capital raises, corporate, partnership, and marital 550 South Hope Street, Suite 1050, Los Angeles, CA specialties include energy, biotechnology, computer dissolutions. Comprehensive economic, industry, and 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: hardware and software, manufacturing, telecommunica- market research. Extensive experience in expert witness [email protected]. Web site: www.capanalysis tions, and financial services. testimony, pretrial preparation, and settlement negotiations. See display ad on page 6.

Los Angeles Lawyer November 2004 67 MECHANICAL ENGINEERING sexually transmitted diseases. Dr. Bierman is Honorary TASA Has Associate professor of medicine and past President of CTG FORENSICS, INC. Los Angeles Dermatologic Society. Your Medical Expert. 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) 790-0010, fax (949) 790-0020, e-mail: mlewis MEDICAL/EMERGENCY MEDICINE @CTGforensics.com. Web site: www.CTGforensics.com. Contact Dr. Malcolm Lewis, PE. Construction related en- BRUCE WAPEN, MD gineering, plumbing, mechanical (heating, ventilating, EMERGENCY MEDICINE EXPERT A/C) and electrical (power, lighting), energy systems, resi- 969-G Edgewater Boulevard, Suite 807, Foster City, CA dential and nonresidential buildings, construction defects, 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: construction claims, and mold. [email protected]. Web site: www.DrWapen .com. Contact Bruce Wapen, MD. Board-certified emer- MEDICAL/ gency physician and experienced public speaker offers consultation, chart review, and testimony as an expert wit- AMFS, INC. (AMERICAN MEDICAL FORENSIC ness for plaintiff or defense involving litigation arising from SPECIALIST) the emergency department. See display ad on page 70. • Thousands of Local and National Experts 2640 Telegraph Avenue, Berkeley, CA 94704, (800) 275- 8903, (510) 549-1693, fax (510) 486-1255, e-mail: MEDICAL/NEUROLOGY • More than 875 health care specialties [email protected], Web page: www.amfs.com. from Acupuncture to X-Ray Contact Barry Gustin, MD, MPH, FACEP. AMFS is a ROGER V. BERTOLDI, MD physician and attorney managed company that provides 8610 South Sepulveda Boulevard, Suite 200, Los Ange- • NO CHARGE for referrals until you initial in-house case screenings by 72 multidisciplinary les, CA 90045-4810, (310) 670-5555, fax (310) 670-9222. designate or engage an expert physician partners. Medical experts are matched to meet Web site: www.bol.ucla.edu/~rbertold. Contact Angelica. • Exceptional service case requirements by AMFS Physician Partners from our Traumatic brain injury (TBI): Neuro behavior-anatomical- panel of over 3,500 carefully prescreened board-certified functional (PET, brain-mapping, neuropsychological) practicing specialists in California. All recognized medical workup and treatment. Diplomate (ABPN) qualification in specialties. Plaintiff and defense. Fast, thorough, objec- clinical neurophysiology: electrodiagnostics of elec- tive, and cost-effective. Medical negligence, hospital and tromyography (EMG), electroencephalography (EEG), managed care, personal injury, product liability, and toxic and evoked potentials for carpal tunnel syndrome (CTS), torts. “A 92 percent win record” –California Lawyer maga- complex regional pain syndrome (CRPS), back pain zine. See display ad on page 66. radiculopathy, peripheral nerve injuries, neurotoxic injuries, and chronic pain, somatoform disorders, epilepsy, BEHROOZ (BRUCE) BROUKHIM, MD dementia, headache, assistant clinical professor of neu- 10640 Riverside Drive, North Hollywood, CA, 9763 West rology, UCLA, AME, QME, IME. Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310) 552-1488 (LA), fax (818) 980-7144. Contact Bruce MEDICAL/NEUROLOGY/PERSONAL INJURY Broukhim, MD. Board-certified orthopedic surgeon. Shoulder, knee, and hip surgery, arthroscopic surgery, ANDREW WOO, MD, PHD neck and back injury evaluation and treatment, personal 2021 Santa Monica Boulevard, Suite 525-E, Santa injury, workers’ compensation, QME, IME, and AME. Monica, CA 90404, (310) 829-2126, fax (310) 998-8887, Member: American Academy of Orthopedic Surgeons, e-mail: [email protected]. Contact Gail. Board-certified American Board of Ortho Surgeons, Arthroscopic Associ- neurology, clinical assistant professor UCLA, personal in- Behrooz (Bruce) ation of North America, International Society of jury, pain, carpal tunnel, spine, memory, seizure, sleep, Arthroscopy, Knee Surgery and Ortho Sports Medicine. and clinical protocols. Multiple sclerosis, migraine, and Broukhim, M.D. Twenty years of experience in orthopedic medical legal stroke. Education: AB Cornell University, MD and PhD work and expert testimony. See display ad on page 68 Brown University; residency + EMG/EEG fellowship Board Certified Orthopedic Surgeon UCLA; Advisory Boards: L.A. Neurologic Society, St. MELVIN BRODY, MD John’s Sleep Lab; honors: Who’s Who in Medicine (2001) ■ Shoulder, knee & hip surgery 9400 Brighton Way, Suite 201, Beverly Hills, CA 90210, and science/engineering (1993), international electro- (310) 271-6229, fax (310) 271-9139. Contact Melvin physiology Young Investigator (1997), UCLA Neurology ■ Arthroscopic surgery Brody, MD. General internal medicine, experience with Teaching Awards (1994, 1996), American Academy Neu- ■ Neck & back injury eval. & treatment state board of medical examiners. Criminal and civil. Clini- rology Research (1991), Brown University Sigma XI ■ Personal injury cal professor medicine, UCLA School of Medicine. Private (1989), and research/publications (14), lectures (171). practice. ■ Workers’ Compensation MEDICAL/PATHOLOGY ■ QME, IME, AME TASAMED Customized referrals in all practice areas. 1166 DeKalb LESTHER WINKLER, MD Pike, Blue Bell, PA 19422 (800) 523-2319; fax (800) 329- Encino-Tarzana Regional Medicine Center Pathologist. MEMBER: 8272. FIND JUST THE MEDICAL EXPERT YOU NEED. (consulting emeritus status) 10155 Topeka Drive, North- – Am. Academy of Orthopedic Surgeons Access local, national, and global specialists for case re- ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. view IME’s, litigation support, and testimony in over 875 – American Board, of Ortho Surgeons Contact Lesther Winkler, MD. Specialties: surgical and medical/health care fields. Save valuable search time. autopsy pathology, clinical pathology. Forty years of ex- – Arthroscopic Assn. of North America Categories include anesthesiology, cardiology, DNA, perience in reviewing medical records (hospital records, – International Society of Arthroscopy, emergency care, forensic pathology, hospital administra- office records) with emphasis on pathology aspects, Knee Surgery & Ortho Sports Medicine tion, managed care, medical equipment, mold, nursing, gross and microscopic, and relationships to general med- oncology, orthopedics, pediatrics, psychiatry, sports LACMA – CMA ical and hospital care. Experience with hospital bylaws, medicine, surgery, toxicology, many more. Plaintiff, de- rules, and regulations, consent issues, and medical staff fense. Exceptional personal service for over 43 years. NO privileges. Also experienced in hospital healthcare law, 818-755-6500 TEL CHARGE FOR REFERRALS until you designate or en- medical, hospital, and “outside” ethical medical issues. gage an expert. Please see our insert in this issue and 310-552-1488 (L.A.) Helped establish concepts and chaired hospital ethics display ad on this page. committees for more than 10 years. Represented physi- 818-980-7144 FAX cians before California Medical Board when requested by MEDICAL/DERMATOLOGY 10640 Riverside Dr., North Hollywood, CA attorneys. Degrees/licenses: MD. 9763 W. Pico Blvd., Los Angeles, CA STANLEY M. BIERMAN, MD, FACP MEDICAL/PLASTIC AND COSMETIC 2080 Century Park East, #1008, Los Angeles, CA 90067, RECONSTRUCTIVE SURGERY 20 YEARS EXPERIENCE (310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd IN ORTHO. MED. LEGAL WORK @aol.com. Contact Stanley Bierman, MD. Dr. Bierman is JOHN M. SHAMOUN, MD, FACS, INC. AND EXPERT TESTIMONY an expert witness in matters relating to diagnosis and 360 San Miguel, Suite 406, Newport Beach, CA 92660, treatment of skin cancers as well as matters relating to (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun

68 Los Angeles Lawyer November 2004 @aol.com. Web site: www.ideallook.com. Contact JONATHAN S. RUTCHICK, MD, MPH, QME 92706, (714) 565-1012, e-mail: [email protected]. Yvonne. Specialties: only plastic surgeon in the United 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, Contact James F. Lineback, MD. Internal medicine, States board certified by the 1) American Board of (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch chest medicine, occupational medicine, toxic exposure, Surgery, 2) American Board of Plastic Surgery, 3) Ameri- @neoma.com. Web site: www.neoma.com. Jonathan S. death cases, diagnostic dilemmas, patient management, can Board of Facial Plastic and Reconstructive Surgery, Rutchik, MD, MPH is a physician who is board certified in causation, and chart review. Twenty years of consulting/ and 4) American Board of Forensic Medicine. Extensive both Neurology and Occupational and Environmental expert witness experience in medical malpractice, per- experience in all aspects of cosmetic, plastic, and recon- Medicine. He provides clinical evaluations and treatment, sonal injury, workers compensation (QME, AMA). Degrees/ structive surgery of the breast, nose, face, eye, and body. including electromyography, of individuals and popula- license: MD, MS, FCCP, Board Certified Internal Medi- Well-published author of several textbook chapters and tions with suspected neurological illness secondary to cine/Pulmonary Medicine. See display ad on page 71. journal articles related to above topics. Extensive experi- workplace injuries or chemical exposure. Services include ence in medical malpractice case review, consultation, medical record and utilization review and consulting to in- METALLURGICAL AND CORROSION written evaluation and testimony in depositions and trial dustrial, legal, government, pharmaceutical, and academic ENGINEER for plaintiff and defense. Articulate subspecialty consul- institutions on topics such as metals and solvents, mold ill- tant with up-to-date knowledge and expertise of plastic ness, Baychol issues, Persian Gulf War syndrome, musi- KARS ADVANCED MATERIALS, INC. surgery literature and standards of care. Opinions sup- cians’ injuries, and others. See display ad on page 66. Testing and Research Labs, 2528 West Woodland Drive, ported by extensive subspecialty education, training, and Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- experience. MEDICINE 7169, e-mail: [email protected]. Web site: www.karslab .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. MEDICAL MALPRACTICE LINEBACK, INC. Southern California’s premier materials/mechanical/metal- 2100 North Main Street, Suite 202, Santa Ana, CA lurgical/structural/forensics laboratory. Registered profes- JEFFREY KAUFMAN, MD 720 North Tustin Avenue, Suite 101, Santa Ana, CA 92705, (714) 973-4600, fax (714) 547-1259. Web site: www.urodocs.net. Contact Jeffrey Kaufman, MD. Uro- logic surgery. Extensive experience in urologic case review and testimony. Numerous articles published and presentations made. Sterilization and vasectomy, impo- tency, penile implants, urologic cancer treatment, urologic trauma, and urinary incontinence. Member and officer in numerous medical associations. Detailed C.V. available.

BRUCE WAPEN, MD EMERGENCY MEDICINE EXPERT 969-G Edgewater Boulevard, Suite 807, Foster City, CA 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: [email protected]. Web site: www.DrWapen .com. Contact Bruce Wapen, MD. Board-certiﬁed emergency physician and experienced public speaker offers consultation, chart review, and testimony as an expert witness for plaintiff or defense involving litigation arising from the emergency department. See display ad on page 70.

LESTHER WINKLER, MD Encino-Tarzana Regional Medicine Center Pathologist. (consulting emeritus status) 10155 Topeka Drive, North- ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. Contact Lesther Winkler, MD. Specialties: surgical and autopsy pathology, clinical pathology. Forty years of experience in reviewing medical records (hospital records, office records) with emphasis on pathology aspects, gross and microscopic, and relationships to general medical and hospital care. Experience with hospital bylaws, rules, and regulations, consent issues, medical staff privileges. Also experienced in hospital healthcare law, medical, hospital and “outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more than 10 years. Represented physicians before California Medical Board when requested by attorneys. Degrees/licenses: MD.

MEDICAL TOXICOLOGY

GARY J. ORDOG, MD P/Professor, UCLA/Drew School, 23206 Lyons Avenue, Suite 104, Santa Clarita, CA 91321, (661) 799-1689, fax (661) 799-3453, e-mail: [email protected]. Web site: http://dwp.bigplanet.com/toxic. Contact Gary J. Ordog, MD. Board-certified medical toxicologist. Board- certified emergency medicine specialist. Medical/legal expert on environment exposures, stachybotrys and other building-related molds, poisonings, snake/insect/ animal bites, and fetal toxicology. Wound ballistics, gunshot wound and taser expert. Author of major textbook, El- lenhorn’s Medical Toxicology, the most significant reference text on this subject. Available for medical treatment, consultation, chart review, and expert witness. Degrees/license: MD (CA), FACEP, DABMT, FABFE, FABME. See professional announcement on page 64.

Los Angeles Lawyer November 2004 69 sional engineers with 20-plus years in metallurgical/foren- ing services include case analysis/for merit, chronology, design, procurement, construction, operations, and main- sic/structural failure analysis. Experienced with automo- translation, written reports, medical record organization. tenance of petroleum facilities. This includes pipelines, tive, bicycles, tires, fire, paint, plumbing, corrosion, and DME/IME accompaniment including tape recording and pumps, storage tanks, meters, regulators, controls, and structural failures. We work on both plaintiff and defen- written report. Expert witness and testifying services, in- instruments. dant cases. Complete in-house capabilities for tests. Ex- cluding affidavit, arbitration, declaration, deposition, and tensive deposition and courtroom experience (civil and trial. Class action and case management. Witness prepa- OPHTHALMOLOGY criminal investigations). Principals are fellows of American ration for deposition or trial testimony. Society for Metals and board-certified diplomates, Ameri- GLAUCOMA INSTITUTE BEVERLY HILLS can Board of Forensic Examiners. See display ad on OBSTETRICS AND GYNECOLOGY 8733 Beverly Boulevard, Suite 301, Los Angeles, CA page 63. 90048, (310) 855-1112, fax (310) 855-1211, e-mail: berlin GIL N. MILEIKOWSKY, MD @ucla.edu. Web site: www.glaucoma-institute.com. 1 METALLURGY Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen Contact Michael S. Berlin, MD. Specializes in glaucoma, Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or laser, and glaucoma clinical practice and research. Ex- KARS ADVANCED MATERIALS, INC. (818) 981-1888, fax (310) 858-1303 or fax (818) 981- tensive experience as expert witness in medical malprac- Testing and Research Labs, 2528 West Woodland Drive, 1994. Web site: www.baby4you.net. Contact Gil N. tice, laser safety, products liability and workers’ compen- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparo- sation. Consultant for medical case development, case 7169, e-mail: [email protected]. Web site: www.karslab scopy, and reproductive endocrinology. Diplomate, board review, deposition, and malpractice analysis. Plaintiff and .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. certified by the American Board of OB/GYN. Board eligi- defense (medical malpractice and personal injury), med- Southern California’s premier materials/mechanical/metal- ble, American Board of Reproductive Endocrinology Divi- ical-legal technical support. Director, Glaucoma Institute lurgical/structural/forensics laboratory. Registered profession. Fellow, American College of OB/GYN. Member of Beverly Hills. Clinical professor, UCLA Jules Stein Eye In- sional engineers with 20-plus years in metallurgical/foren- the American Society for Reproductive Medicine, Society stitute, member of the American Academy of Ophthalmol- sic/structural failure analysis. Experienced with automo- of Assisted Reproductive Technologies, former Medical ogy, American Glaucoma Society, American National tive, bicycles, tires, fire, paint, plumbing, corrosion, and Director IVF (In Vitro Fertilization) at Northridge Hospital, Standards Institute. Diplomate, American Board of Oph- structural failures. We work on both plaintiff and defen- former Chairman Laser and Safety Committee at North- thalmology, American Society of Cataract and Refractive dant cases. Complete in-house capabilities for tests. Ex- ridge Hospital and member of the Los Angeles County Surgery, American Society for Laser Medicine and tensive deposition and courtroom experience (civil and Medical Association. Author, numerous scientific papers Surgery. Widely published. Degrees/licenses: MD, MS criminal investigations). Principals are fellows of American and articles published in peer review journals. Clinical in- Ophthalmology. Society for Metals and board-certified diplomates, Ameri- structor at USC. Clinical assistant professor, OB/GYN at can Board of Forensic Examiners. See display ad on UCLA. See display ad on page 76. ORTHOPEDIC SURGEON page 63. OIL & GAS FACILITIES MARC J. FRIEDMAN, MD NURSING 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- RANDALL CONSULTANTS 6600, fax (818) 901-6688, e-mail: [email protected]. Web MED-LINK 960 Berry Avenue, Los Altos, CA 94024, (650) 960-1078, site: www.scoi.com. Contact Lonna Collier. Orthopedic 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) fax (650) 961-4050, e-mail: [email protected]. shoulder and knee, consulting, and expert witness testi- 333-5110, fax (626) 968-0064, e-mail: dorothypollock Contact Warren O. Carlson. Expert consultant for mony. IME, AME, QME and workers’ compensation evalu- @adelphia.net. Contact Dorothy Pollock, LNCC. Regis- pipelines and oil and gas facilities. I am a graduate pro- ations. See display ad on page 59. tered nurse with 36 years’ clinical experience. Non-testify- fessional engineer with more than 40 years’ experience in

— EMERGENCY MEDICINE EXPERT —

BRUCE WAPEN, MD, FACEP YOUR EXPERT FOR MALPRACTICE LITIGATION ARISING FROM THE EMERGENCY DEPARTMENT

• 29 years in Emergency Medicine • Experience with cases for both plaintiff and defense • Accomplished at deposition and trial testimony • Teaching experience with Stanford, U.C. Davis, and Letterman Army Medical Center

www.drwapen.com TEL (650) 577-8635 • FAX (650) 577-0191

969-G EDGEWATER BOULEVARD #807, FOSTER CITY, CA 94404-3760

70 Los Angeles Lawyer November 2004 GRAHAM A. PURCELL, MD, INC. clude accounting, antitrust, breach of contract, business James F. Lineback, M.D., F.C.C.P. Assistant Clinical Professor Orthopaedic Surgery, interruption, business dissolution, construction, fraud in- UCLA, 3600 Wrightwood Drive, Studio City, CA 91604, vestigation, asset tracing analysis, intellectual property (818) 985-3051, fax (818) 985-3049, e-mail: expert (patent, trademark and copyright infringement and trade EXPERT WITNESS @gpurcellmd.com. Web site: gpurcellmd.com. Contact secrets), personal injury, product liability, professional Graham A. Purcell, MD. Dr. Purcell is a board certified malpractice, real estate, spousal support, tax, valuation of orthopedic surgeon, sub-specialty in spinal disorders businesses, unfair advertising, unfair competition, and affecting adults and children. Examples of spinal disor- wrongful termination. See display ad on page 49. PLAINTIFF AND DEFENSE ders treated by Dr. Purcell including disc diseases, steno- sis, infections, tumors, injuries, and deformities including PHYSICAL MEDICINE AND REHAB, PAIN (20 YEARS) scoliosis. He possesses 24 years of orthopedic and 15 MANAGEMENT years of med-legal experience, including defense, plain- MEDICAL MALPRACTICE tiff, insurance carriers, CA Attorney General’s office and HOLLYWOOD PAIN CENTER Public Defender’s office. Expert testimony pertains to 1300 North Vermont Avenue, Suite 710, Los Angeles, CA PERSONAL INJURY med-mal, personal injury, and workers’ compensation 90027, (323) 953-2637, fax (323) 953-3520. Board certi- cases. As qualified medical evaluator, Dr. Purcell has ex- fied in Physical Medicine and Rehabilitation. Board certi- WORKERS’ COMPENSATION tensive experience in performing QMEs, AMEs, IMEs, WC fied in Pain management. IME, QME, courtroom, and de- evals. See display ad on page 72. position experience. (QME, AME)

RICHARD C. ROSENBERG, MD PLASTIC AND COSMETIC 18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356, RECONSTRUCTIVE SURGERY (818) 996-6800, fax (818) 996-2929, e-mail:rcrnsx@aol SPECIALTIES JEFFREY L. ROSENBERG, MD .com. Web site: www.drrosenberg.com. Contact Sheri ■ Roberts. Orthopedic surgery, sports medicine, and phys- 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA Internal Medicine 90017, (213) 977-0257, fax (213) 977-0501. Contact ical therapy. Experienced in IME, QME, agreed medical ■ exams, med/legal reports, and expert witness testimony. Martha. Plastic and reconstructive surgery, burn special- Pulmonary/Chest Medicine ist. Diplomate, American Board of Plastic Surgery. Mem- Personal injury and workers’ compensation. Additional of- ■ Occupational Medicine fice in Oxnard, California. ber, American Burn Association and American Society of Plastic Surgeons. ■ Wrongful Death Cases PEDIATRIC EXPERT WITNESS ALFRED ROVEN, MD ■ MICHAEL WEINRAUB, MD 5757 Wilshire Boulevard, Suite #6, Los Angeles, CA Patient Care Issues 90036, (323) 937-7733. Contact Alfred Roven, MD. 201 Santa Fe Avenue, Suite 307, Los Angeles, CA 90012, ■ Medical Causation (213) 742-0421, fax (213) 617-1187, e-mail: virtualmd Expert, both sides. Major trauma, burns, cosmetic prob- @sbcglobal.net. Contact Michael Weinraub, MD. Con- lems, nasal—facial fractures, scars, deformities, consulta- ■ Standard of Care Issues sultation, litigation support ,and trial testimony for pedi- tion, treatment, records review, depositions, and court atric cases; malpractice, product liability, personal injury, testimony. American Board of Plastic Surgery. American ■ Diagnostic Dilemmas child abuse, fostercare, developmental disabilities, and Board of Otolaryngology. ADHD. ■ Toxic Exposure POLYGRAPH ■ PERSONAL INJURY JACK TRIMARCO & ASSOCIATES Medical Records Review NEUROLEGAL SCIENCES, INC. POLYGRAPH INC. 4222 East Thomas Road, Phoenix, AZ 85018, (480) 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA 659-7771, fax (602) 667-9101, 1855 San Miguel Drive, 90212, (310) 247-2637, fax (805) 383-9973, e-mail: MEDICAL PRACTICE IN Suite 23, Walnut Creek, CA 94596 (925) 933-5594, [email protected]. Web site: www.jacktrimarco.com. PULMONARY/CHEST MEDICINE e-mail: [email protected]. Web site: www Contact Jack Trimarco. Former manager of the Federal AND INTERNAL MEDICINE .neurolegalsciences.com. Contact Dr. Catherine Klee. Bureau of Investigation’s polygraph program in Los Ange- Medical and legal records review; neuropsychological les. Former Inspector General Polygraph Program—De- SINCE 1983 partment of Energy. Nationally known and respected Poly- evaluations; consistency analysis (determination of weak Degrees: MS, MD, FCCP vs. strong points of case); case analysis supported by graph Expert. I have the credentials you would want when scientific literature; assistance with requests for produc- you have a client polygraphed, a case reviewed, a motion Board Certified, Internal Medicine tion and interrogatories; accompany your client to inde- made regarding polygraph, or an in-depth professional in- Board Certified, Pulmonary Medicine vestigation. My unique background allows me to bring the pendent medical evaluations; selection of experts; prepa- Fellow Am. College of Chest Physicians ration of case specific deposition inquiry for use with op- highest levels of service and expertise to any polygraph posing experts; attendance; at opposing expert(s) depo- situation. Degrees/licenses: BS Psychology; Certified sition(s); arrange, conduct and attend focus group(s); as- APA, AAPP, CAPE, AAFE. See display ad on page 39. Associate Clinical Professor Medicine sistance with preparation of settlement video, preparation USC College of Medicine of Daubert challenge(s) and motion in limine; preparation PROBATE LAW Associate Clinical Professor of Medicine of case-specific direct and cross examination inquiry; DARLING, HALL & RAE, LLP medical and lay witness preparation; trial theme prepara- 520 South Grand Avenue, 7th Floor, Los Angeles, CA UC Irvine College of Medicine tion; and voir dire/jury selection. Service area is nation- 90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail: Lecturer in Physiology wide. See display ad on page 67. [email protected]. Contact Matthew S. Rae Jr. UC Riverside College of Medicine WHITE, ZUCKERMAN, WARSAVSKY, LUNA, Attorney specialists in estate planning, trust, and probate WOLF & HUNT law. Consultant and expert witness, special and associate 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA counsel, guardian ad litem, referee, special administrator, 91423, (818) 981-4226, fax (818) 981-4278, and 363 San and independent trustee. Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) JAMES F. LINEBACK, M.D. 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw PROCESS SERVER 2100 N. Main St., Suite 202 .com. Contact Barbara Luna, Drew Hunt, Paul White, BENCHMARK INVESTIGATIONS Santa Ana, CA 92706 Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- 32158 Camino Capistrano, # A-415, San Juan Capistrano, pert witness testimony for business, real estate, personal CA 92675, (800) 248-7721, fax (949) 248-0208, Telephone (714) 565-1012 injury, and marital dissolution. Investigative analysis of lia- e-mail: [email protected]. Web site: www bility, damage analysis of lost profits, lost earnings, and .BenchmarkInvestigations.com. Contact Jim Zimmer, Fax: (949) 721-9121 unjust enrichment, fraud investigation, business valuation, CPI. National agency. Professional investigations with E-mail: [email protected] tax planning and preparation and mergers and acquisi- emphasis upon accuracy, detail, and expedience. Asset/ tions. Testified hundreds of times as expert witnesses. financial searches, background investigation, DMV Prior Big Four accounting firm experience. Specialties in- searches, domestic/marital cases, due diligence, process

Los Angeles Lawyer November 2004 71 People Plus Accounting People Plus Accounting People Plus Accounting service, surveillance/photograph, witness location, and ETHICS statements. LA branch plus correspondents nationwide. WITHOUT Multilingual agents. Fully insured. COMPROMISE PRODUCT FAILURES

FRED M. JOHNSON, PHD Miod and Company has developed a solid P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax reputation for ethical Forensic Accounting (714) 526-6662. Contact Fred M. Johnson, PhD. For services. For all legal arguments that relate those who seek the most qualified and the highest foren- ✒ sic workmanship. Extensive test facility and equipment Litigation support to accounting issues, we deliver informed, available. Lighting and illuminations: light intensity mea- ✒ Expert witness objective, honest opinions. surements, visual perception, times of sunset, twilight, + Non-partisan/Expert moon rise/set. Product failure analysis: medical devices, ✒ Forensic accountants Witness Testimony glass, chairs (all types), ladders. Slip and fall: scientific testing of slipperiness on tile, ceramic, walkways, super- ✒ Family law matters + Objective Business Appraisals -Marital Dissolutions markets and retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traf- ✒ -Estate Valuations Business valuations fic accident reconstruction: cars, trucks, pedestrian, bicy- + ✒ Tax Consultation cle. Professor of physics, fellow Am. Physical Society, Loss of earnings + Thorough Investigative Accounting consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + ✒ Damages -Asset Tracing ICC. Author of textbook + 60 scientific publications. Over -Reimbursement Claims 35 years in research. Extensive expert witness experi- + Fraud Investigations ence. See display ad on page 66. When you need more than just PRODUCTS LIABILITY numbers... you can count on us... CALL FOR OUR COMPANY BROCHURE LOS ANGELES OFFICE: A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, 11600 INDIAN HILLS ROAD Contact Michael Krycler (818) 344-2700, fax (818) 344-3777. Engineers: experi- (818) 995-1040 BULDING B, SUITE 300 PHONE MISSION HILLS, CA 91345-1225 enced, registered, advanced degrees, and extensive tes- FAX (818) 995-4124 TEL: (818) 898-9911 FAX: (818) 898-9922 timony experience. Traffic accidents (all motor vehicle www.miod-cpa.com types, bicycles, pedestrians), collisions, rollovers, skid MAIL [email protected] E- marks, visibility, signal phasing, time-motion, and low- PALM DESERT OFFICE: VISIT US @ www.KETW.COM speed impact. Industrial and construction accidents: 74-478 HIGHWAY 111 SUITE 254, PALM DESERT, CA 92260 OSHA issues. Automotive, industrial, and consumer prod- 15303 VENTURA BOULEVARD, SUITE 1040 TEL: (760) 779-0990 FAX: (760) 779-0960 ucts: brakes, seat belts, forklifts, machinery, tools, protec- SHERMAN OAKS, CALIFORNIA 91403 People Plus Accounting People Plus Accounting People Plus Accounting tive equipment, lawn mowers, heaters, chairs, fixtures, ladders, scaffolds, fasteners. Premises liability (code analysis, stairways, ramps, doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. Biome- chanics. Safety. Human factors. See display ad on page 45.

PROSTHETICS/ORTHOTICS

BEVERLY HILLS PROSTHETICS ORTHOTICS, INC. 6300 Wilshire Boulevard, Suite 150, Los Angeles, CA 90048, (323) 866-2555, fax (323) 866-2560, e-mail: keith @bhpoinc.com. Web site: www.bhpoinc.com. Contact Keith Vinnecour, CPO. Expert witness testimony/life care plans.

PSYCHIATRY/PSYCHOLOGY

BARRINGTON PSYCHIATRIC CENTER 1990 South Bundy Drive, Suite 320, Los Angeles, CA 90025, (310) 826-3235, fax (310) 447-0840. Contact David Gyepes, JD, PhD. Full range of civil litigation evaluation, sexual harassment, wrongful termination, personal injury, neuropsychology, posttraumatic stress disorders, child psychiatry/psychology, malpractice, mold and toxic exposures, and Americans with (mental) disabilities claims. Litigation consultation regarding case planning, record review, and behind-the-scenes case preparation. Expert witness testimony in which the right expert is matched to the case.

ARNOLD L. GILBERG, MD, PHD Associate Clinical Professor of Psychiatry, UCLA School of Medicine, a professional corporation, 9915 Santa Monica Boulevard, Suite 101, Beverly Hills, CA 90212, (310) 274-2304, fax (310) 203-0783. Contact Arnold L. Gilberg. Board certiﬁed and appointed by three governors to Medical Board of California 11th District MQRC 1982-1991. Certiﬁed in psychiatry and psychoanalysis. All civil matters, experienced as expert witness. Degrees/licenses: M.D., PhD. Licensed in California and Hawaii.

72 Los Angeles Lawyer November 2004 See display ad on page 47. BRIAN P. JACKS, MD SPIEGEL Clinical Professor of Psychiatry, USC, 462 North Linden, Suite 441, Beverly Hills, CA 90212, (310) 274-0684, fax PROPERTY DAMAGE (310) 274-5049. Contact Andrea Wilens, office man- CONSULTING & FORENSICS ager. Specialties: 25+ years’ experience with adults, teenagers, and children. Workers’ compensation (QME, ✔ MOLD REMEDIATION AME), personal injury, sexual harassment, posttraumatic ✔ WATER DAMAGE stress, child custody, traumatic brain injury, medical mal- ✔ practice, psychopharmacology, and malingering. Treat- SEWAGE BACKFLOW ment: individual, marital, and family. Board certified: ✔ FIRE & SMOKE DAMAGE adults (1974), child-adolescent (1976). Trial experience. ✔ FLOORING FORENSIC Degrees/license: MD, physician/psychiatrist, FAACP. ✔ INDUSTRY STANDARDS OF CARE JEFF SUGAR, MD INSURANCE CLAIMS EXPERTS 312 East Sycamore Avenue, El Segundo, CA 90245, (310) 322-6933, e-mail: [email protected]. Jeff Sugar, MD, child, adolescent, and adult psychiatrist. Associate clinical pro- CONSTRUCTION fessor, UCLA. A practicing psychiatrist for 15 years, he is board certified in child and general psychiatry. He is past DAMAGE • DEFECTS president of the Southern California Society of Child and DETAILED CONSTRUCTION COST Adolescent Psychiatry. As founding director of research ESTIMATES at Hathaway Children and Family Services, he led a study of the long-term effects of trauma. Currently chief of Child BRIAN SPIEGEL, CR, CIE, CMR Inpatient at Kedren Community Health Center and in pri- DAVID SPIEGEL, CR, CIE, CMR vate practice-general and child psychiatry. Dr. Sugar’s re- See listings under CERTIFIED RESTORERS ports and/or testimony have had an impact in cases (both CERTIFIED INDOOR Banking, Construction, child and adult) involving: trauma: sexual and physical ENVIRONMENTALISTS and Financial. abuse (with or without PTSD), personal injury and workers CERTIFIED MOLD REMEDIATORS compensation, psychiatric medication issue, diagnosis IICRC CERTIFIED MASTERS and appropriate treatment, ethical issues and stress in LIC. GEN. CONTRACTOR #299472 legal practice, battered woman’s syndrome, child custody. Free initial telephone consultation with attorney. At- 800-266-8988 torney references and/or redacted past reports available FAX 909-591-7274 on request. See display ad on page 64. [email protected] www.propertydamageinspections.com PUBLISHING CONSULTANTS/EXPERT WITNESS BAY SHERMAN CRAIG & GOLDSTEIN, LLP 11845 West Olympic Boulevard, Suite 845, Los Angeles, CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail: [email protected]. Web site: www.baysherman.com. REAL ESTATE/REAL PROPERTY MATTERS Contact Peter Craig or Hal Jaffe. Many legal disputes involve financial, accounting, and income tax considerations. Bay Sherman Craig & Goldstein, LLP, work together Specializations: with counsel to resolve these conflicts. We specialize in intellectual property publishing. In addition to expert wit- Customs & Standards of Practice, Agency Relationships ness testimony, we provide the following: services prior to Material Disclosure in Residential Real Estate Sales trial, financial, accounting and income tax issues defined, record analysis, economic fact-finding and analysis, deposition preparation assistance, and settlement negotiations.

RADIOLOGY

DISCOVERY DIAGNOSTICS, MEDICAL CORPORATION 6200 Wilshire Boulevard, Suite 1008, Los Angeles, CA 90048, (800) 222-6768, (323) 933-5100, fax (323) 933-4966, e-mail: [email protected]. Web ® addresses: www.themripeople.com, www.msus.com, TEMMY WALKER, REALTOR www.breader.com. Contact Daniel Powers, MD. Real Estate Consulting Expert Witnessing Provider of primary diagnostic imaging services such as MRI/CT scans in adversarial disputes as well as second SERVICES RENDERED: opinions and expert testimony. Will review malpractice Litigation Consulting, Expert Testimony, Broker Practice, cases. Take both plaintiff and defense referrals on merit. State-of-the-art technology available throughout Califor- Liability Audit, Educational Services, Industry Mediator nia. Liens accepted. Licensed physician in 49 states plus Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist, District of Columbia. Degrees/licenses: Board Certified Di- ® agnostic and Nuclear Radiologist; B reader. See display California Association of Realtors Director Since 1981, National Association of ® ad on page 53. Realtors Director, State Faculty Master Instructor, Member, Real Estate Education Association, Past President, San Fernando Valley Board of Realtors REAL ESTATE 5026 Veloz Avenue, Tarzana, California 91356 ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, Telephone (818) 760-3355 • Pager (818) 318-2594 (949) 263-8700, fax (949) 263-0770, e-mail: info e-mail: [email protected] @mcsassociates.com. Web site: www.mcsassociates CALIFORNIA BROKER LICENSE NO. 00469980 .com. Contact Norman Katz, managing partner. Nation-

Los Angeles Lawyer November 2004 73 ally recognized banking, finance, and real estate consult- tion between brokers and clients regarding disputes, ethi- (310) 640-9656, fax (310) 640-9276, e-mail: maurice ing group (established 1973). Experienced litigation con- cal questions, and fee division. Deal structuring and site @mauricerobinson.com. Web site: www.mauricerobinson sultants/experts include senior bankers, lenders, consul- location analysis. Real estate leases and purchase con- .com. Contact R. Maurice Robinson, president. Hotel tants, economists, accountants, insurance underwriters/ tracts and their interpretations. Author AIR Net and Gross and real estate industry business issues, including mar- brokers. Specialties: lending customs, practices, policies, Leases and AIR Standard Offer and Agreement and Es- ket, economic and financial feasibility, valuation, and dis- in all types of lending (real estate, business/ commercial, crow Instruction for Purchase of Real Estate. See display putes between owner-operator, borrower-lender, and construction, consumer/credit card), banking operations/ ad on page 47. franchisor-franchisee. Fluent in management contracts, li- administration, trusts and investments, economic analysis cense agreements, ground and building leases, partner- and valuations/damages assessment, insurance claims, SCHULZE HAYNES & CO. ship and JV agreement, concession contracts, develop- coverages and bad faith, real estate brokerage, ap- 660 South Figueroa Street, Suite 1280, Los Angeles, CA ment agreements, and loan docs. Can estimate damages praisal, escrow, and construction defects/disputes, and 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert and appraise property values under multiple scenarios. title insurance. @schulzehaynes.com. Web site: www.schulzehaynes Expert witness testimony, litigation strategy, consultation .com. Contact Karl J. Schulze or Dana Haynes, princi- and support, damage calculations, lost profits analysis, ADVISORY SERVICES GROUP pals. Specialties: forensic business analysis and account- real estate appraisals, deal structuring, workouts, new de- Coldwell Banker Commercial, 2502 West Artesia Boule- ing, lost profits, economic damages, expert testimony, velopment, strategic planning, market demand assess- vard, Redondo Beach, CA 90278, (310) 937-7700, fax discovery assistance, business and real estate valuations, ment, acquisition due diligence, and economic, financial, (310) 798-6836. Specialties: Real estate, valuations, busi- construction claims, corporate recovery, real estate trans- and investment analysis. ness valuations, condemnations, and FF & E. As part of actions, financial analysis and modeling, major profes- the Coldwell Banker Commercial group, over 450 offices sional organizations, and have experience across a broad RECEIVER nationwide. Additional services for special purpose mixed spectrum of industries and business issues. Degrees/li- use and contaminated/toxic properties, environmental/ censes: CPA; CVA; CFE; CMA; certified appraiser, PE; RE SALTZBURG, RAY & BERGMAN, LLP civil engineering. Right-of-way eminent domain, structural broker. 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA defect reports, and construction defect reports. In-house 90025, (310) 481-6700, fax (310) 481-6720. Contact CPA, general contractor, and engineers. Approved for TEMMY WALKER, INC. David L. Ray, Esq. Specializes in handling complex IRS, federal, state, and municipal courts. Offices in 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355, receivership matters, such as partnership and corporate Orange County, San Diego/Inland Empire and Northern fax (818) 999-0826, e-mail: [email protected]. Contact dissolutions, including law firm dissolutions, and govern- California. See display ad on page 75. Temmy Walker. Specializes in expert witness testimony ment enforcement receivership actions, including actions and litigation consultant in matters regarding residential brought by the California Department of Corporations, De- STEPHEN B. FAINSBERT, ESQ., FAINSBERT real estate, with emphasis on the customs and practice, partment of Real Estate, Commodities Future Trading MASE & SNYDER, LLP standards of care, disclosure requirements, agency rela- Commission, and Federal Trade Commission. Nationally 11835 West Olympic Boulevard, Suite 1100, Los Angeles, tionships, and broker supervision. Complete assistance. recognized in both the lender and litigation communities CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: Extensive transaction and court experience. Director Cali- as qualified to assist in complicated and commercially so- [email protected]. Contact Stephen B. Fainsbert. fornia Association of Realtors, master faculty instructor for phisticated liquidations, reorganizations, and ongoing Expert testimony in real property exchanges (coauthor continuing education C.A.R. Excellent credentials and ref- business operations. CEB publication Real Property Exchanges, 2nd ed.), real erences. See display ad on page 73. estate transactions, standard of care and practice for real RELOCATION ASSISTANCE estate brokers, escrow, and real estate attorneys, disclo- ALAN D. WALLACE, ESQ. sures in purchase and sale agreements, real estate fi- 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA OVERLAND, PACIFIC & CUTLER, INC. nancing, and secured real property transactions. 91423, (818) 501-0133, fax (818) 905-6091, e-mail: 100 West Broadway, Suite 500, Long Beach, CA 90802, [email protected]. Contact Alan D. Wallace, Esq. (800) 400-7356, fax (562) 304-2020, e-mail: dstadler FULCRUM FINANCIAL INQUIRY Expert witness and litigation consulting for general real @opcservices.com. Web site: www.opcservices.com. 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA estate matters, including law, custom and practice, Contact David Stadler. Overland, Pacific & Cutler, Inc. is 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte agency, disclosure, broker malpractice, standards of care recognized as one of the nation’s leading real estate ser- @fulcruminquiry.com. Web site: www.fulcruminquiry for brokers, buyers and sellers. Broker and attorney. In- vices organizations. We are known for our expertise in de- .com. Contact David Nolte. Services include computer volved as broker in more that 7,500 real estate transac- livering acquisition and relocation projects to public agen- forensics and electronic discovery involving litigation, em- tions. Department of Real Estate master instructor and au- cies. We have been called upon to provide eminent do- ployment matters, and fraud investigations. Our expertise thor, former CAR hotline attorney, university law professor main litigation support and expert witness testimony relat- includes accounting inspections and audits, damages in real estate. Successfully testified in dozens of cases. ing to relocation assistance and goodwill valuation on be- analysis for litigation, business and intangible asset valua- See display ad on page 75. half of both public agencies and businesses displaced by tions, economic and market studies, and related expert public projects. testimony. Fulcrum’s analysis and research, combined REAL ESTATE APPRAISAL with persuasive presentation techniques, have resulted in RESTAURANTS an unequalled record of successful court cases and client ADVISORY SERVICES GROUP recoveries. See display ad on page 2. Coldwell Banker Commercial, 2502 West Artesia Boule- LEON GOTTLIEB vard, Redondo Beach, CA 90278, (310) 937-7700, fax US-INT’L RESTAURANT, HOTEL & FRANCHISE LAW OFFICE OF LORE HILBURG (310) 798-6836. Specialties: Real estate, valuations, busi- CONSULTANT 1651 Virginia Road, Los Angeles, CA 90019, (323) 737- ness valuations, condemnations, and FF & E. As part of 4601 Sendero Place, Tarzana, CA 91356-4821, (818) 4444, fax (323) 737-4411, e-mail: [email protected]. the Coldwell Banker Commercial group, over 450 offices 757-1131, fax (818) 757-1816, e-mail: [email protected]. Contact Lore Hilburg. Recognized expert witness on nationwide. Additional services for special purpose mixed Web site: http://members.aol.com/lgottlieb/myhomepage title, escrow and foreclosure issues as well as legal mal- use and contaminated/toxic properties, environmental/ /business.html. Specialties: USA/Int’l restaurant/hotel/fran- practice regarding title and title insurance matters. Testi- civil engineering. Right-of-way eminent domain, structural chise experience since 1960. Hands-on consultant and fied in Superior and Federal courts and arbitrations. defect reports, and construction defect reports. In-house expert witness, all types of restaurants, franchises, fast CPA, general contractor, and engineers. Approved for food, training, manuals, safety, security, injury, operating LAWRENCE H. JACOBSON, ESQ. IRS, federal, state, and municipal courts. Offices in Or- 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA standards, and P&L damages. Former VP/Partner IHOP, ange County, San Diego/Inland Empire and Northern Cali- director to USA chains, author, arbitrator, and expert wit- 90212, (310) 271-0747, fax (310) 271-0757, e-mail: fornia. See display ad on page 75. [email protected]. Web site: www.jurispro.com/mem ness. /lawrencejacobson. Practicing real estate law in California CURTIS-ROSENTHAL, LLC since 1968; Real estate broker since 1978; Former VP- 5959 West Century Boulevard, Suite 1010, Los Angeles, RETALIATION Legal Affairs, California Association of Realtors; broker. CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: HAIGHT CONSULTING Witness/consultant expertise in standard of care; broker- [email protected]. Web site: www 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) age; lawyer malpractice, transactions, custom, and .curtisrosenthal.com. Contact David Rosenthal, MAI. 454-2988, fax (310) 454-4516. Contact Marcia Haight. usage. Appraisal of commercial and residential real estate for Human resources expert knowledgeable in both federal eminent domain, bankruptcy, estate planning, divorce, JACK KARP/NATIONAL PROPERTIES GROUP and California law. Twenty-five years’ corporate human re- and general litigation. Accepted in local, state, and fed- sources management experience plus over 15 years as a 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, eral courts. (310) 377-6349, fax (310) 868-2880, e-mail: jlkarp@cox Human Resources Compliance Consultant in California. .net. Industrial and commercial broker’s care and duties, MAURICE ROBINSON & ASSOCIATES LLC Specializations include sexual harassment, ADA/disability professional obligations to clients. Mediation and arbitra- 880 Apollo Street, Suite 125, El Segundo, CA 90245, discrimination, other Title VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful

74 Los Angeles Lawyer November 2004 termination. Courtroom testimony and deposition experience. Retained 60% for defense, 40% for plaintiff. Audit Expert Witness employer’s actions in preventing and resolving discrimi- —Real Estate Matters— nation, harassment, and retaliation issues. Assess human resources policies and practices for soundness, for comparison to prevailing practices, and for compliance. Eval- SPECIALIST IN: uate employer responsiveness to complaints and effec- • Broker duties; Standard of Care tiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination • Disclosure Issues – Buyer/Seller of documents, and expert testimony. • Agency Obligations • Real Estate Malpractice ROOFING AND WATERPROOFING • Mortgage Brokerage Law SCHWARTZ / ROBERT & ASSOCIATES, INC. • Residential & Commercial Transactions 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- 1115, cell (818) 825-3247, fax (805) 777-1172, e-mail: CREDENTIALS: [email protected]. Web site: www.schwartzrobert Supervising Broker .com. Contact Robert I. Schwartz, AIA. Real Property Responsible for overseeing more than Development procedures & practices, all building types, 7,500 RE transactions in major sizes & phases. Professional evaluation of building de- California-based real estate companies. sign errors & omissions, building code compliance & professional standards of practice. Forensic investiga- General Counsel tion of construction defects. Repair cost estimates. Con- Legal adviser for two of nation’s largest struction contract/subcontract performance—project real estate companies. management administration & cost accounting, CPM Hotline Attorney scheduling, cost estimating, change order administra- Supervising Senior Counsel at tion, quality assurance & building performance. Evalua- California Association of Realtors (CAR) tion of delay claims. Documentation of major property/ casualty insurance losses. Excellent litigation support & DRE Master Instructor trial exhibit preparation. Expert witness testimony. Expe- Author, DRE Disclosure Course. rienced AAA arbitrator & mediator. Large & complex cases. Member, Dispute Resolution Boards. Alan D. Wallace, Esq. VAN DIJK & ASSOCIATES, INC. 14011 Ventura Blvd., Suite 406 28 Hammond, Suite G, Irvine, CA 92618, (949) 586- Sherman Oaks, CA 91423 3828, fax (949) 586-7429, e-mail: info@vdaconsulting 818/501-0133 ■ FAX 818/905-6091 .com. Web site: www.vdaconsulting.com. Contact Nils www.expertwitnessre.com Van Dijk. Experienced staff of consultants specializing e-mail: [email protected] in forensic/expert witness litigation services, plan/document review, speciﬁcation preparation, and quality control/management services.

SECURITY

CONFIDENTIAL BUSINESS CONSULTANTS, LLC 2275 Huntington Drive, Suite 309, San Marino, CA 91108, (626) 419-0082, fax (626) 799-7960, e-mail: [email protected]. Contact James F. Broder, CFE, CPP, FACFE. Author of “Risk Analysis and Security Sur- veys,” premise liability, adequate vs. inadequate security procedures and practices, expert case analysis and testimony, corporate procedures, training and operations, kidnap, ransom, extortion, and workplace violence issues. Thirty-ﬁve years of law enforcement and security experience, domestic and international. Listed in the En- cyclopedia of Security Management as “One of the most highly recognized security authorities in the US.” CA PI Lic. 0021073.

ROBERT C. ROSEN 300 South Grand Avenue, Suite 2700, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site: www.rosen-law.com. Specializing in securities law, federal securities law enforcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, internet securities, and law ﬁrm liability. Former chair, LACBA Business and Corporations Law Section; LLM, Harvard Law School. More than 30 years practicing securities law, 12 years with the U.S. Securities and Exchange Commission, Washington, DC. Published author of securities regulations, including eight volume treaties. See display ad on page 57.

Los Angeles Lawyer November 2004 75 SEXUAL HARASSMENT/DISCRIMINATION tices for soundness, for comparison to prevailing prac- FMLA, compensation, wage and hours, ERISA, work- tices, and for compliance. Evaluate employer respon- place violence, and OSHA. Consultant to over 100 orga- HAIGHT CONSULTING siveness to complaints and effectiveness of employer nizations. Over 500 publications. Five-time winner of 1726 Palisades Drive, Paciﬁc Palisades, CA 90272, investigations. Assist counsel via preliminary case CSUF Meritorious Performance Award. Have given trial (310) 454-2988, fax (310) 454-4516. Contact Marcia analysis, discovery strategy, examination of documents, testimony in over 35 cases. Haight. Human resources expert knowledgeable in both and expert testimony. federal and California law. Twenty-ﬁve years’ corporate STEPHEN J. MOREWITZ, PHD & ASSOCIATES human resources management experience plus over 15 BRIAN H. KLEINER, PHD 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- years as a Human Resources Compliance Consultant in Professor of Human Resource Management, California 1587, fax (818) 345-9981, e-mail: morewitz@earthlink California. Specializations include sexual harassment, State University, 800 North State College Boulevard, LH- .net. Web site: http//home.earthlink.net/~morewitz/ ADA/disability discrimination, other Title VII and FEHA 640, Fullerton, CA 92834, (714) 879-9705, fax (714) 879- Contact Dr. Steve Morewitz. Sexual harassment and discrimination and harassment, retaliation, FMLA/CFRA, 5600. Contact Brian H. Kleiner, PhD. Specializations disability. Evaluates sexual harassment policies and pro- safety, and wrongful termination. Courtroom testimony include wrongful termination, discrimination, sexual ha- cedures, sexual harassment impact, disability, rehabili- and deposition experience. Retained 60% for defense, rassment, ADA, evaluation of policies and practices, tation, and quality of life losses. Provides other experts. 40% for plaintiff. Audit employer’s actions in preventing reasonable care, progressive discipline, conducting Eighteen years of experience. Professor and former and resolving discrimination, harassment, and retalia- third-party workplace investigations, retaliation, RIFs, dean. Author of four books and 70 other publications. tion issues. Assess human resources policies and prac- statistics, negligent hiring, promotion selections, CFRA/ Outstanding Scholar Book Award and other honors.

SLIP, TRIP, AND FALL

A R TECH FORENSIC EXPERTS, INC. — EXPERT WITNESS IN — 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, (818) 344-2700, fax (818) 344-3777. Engineers: experi- INFERTILITY, GYNECOLOGY & OBSTETRICS enced, registered, advanced degrees, and extensive IVF (In Vitro Fertilization) • LASER SURGERY • testimony experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY skid marks, visibility, signal phasing, time-motion, and low-speed impact. Industrial and construction accidents: IL ILEIKOWSKY OSHA issues. Automotive, industrial, and consumer G N. M , M.D. products: brakes, seat belts, forklifts, machinery, tools, OFFICES: Encino and Beverly Hills protective equipment, lawn mowers, heaters, chairs, ﬁx- 2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077 tures, ladders, scaffolds, fasteners. Premises liability TEL (310) 858-1300 • FAX (310) 858-1303 (code analysis, stairways, ramps, doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. TEL (818) 981-1888 • FAX (818) 981-1994 Biomechanics. Safety. Human factors. See display ad Web site: www.baby4you.net on page 45. Please see listing under INFERTILITY and OBSTETRICS AND GYNECOLOGY for more information. TAXATION

KAJAN MATHER & BARISH 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA 90212, (310) 278-6080, fax (310) 278-4805, e-mail: ehk @taxdisputes.com. Web site: www.taxdisputes.com. Contact Elliott H. Kajan. The ﬁrm’s practice is devoted to representation of taxpayers before the Internal Rev- enue Service, Franchise Tax Board, State Board of Equalization, and California Employment Development Department, involving tax audits, administration appeals proceedings, tax collection matters, complex tax litigation, and criminal tax investigations and trials. The ﬁrm also represents and advises accountants regarding tax penalties and professional responsibility matters.

TRAFFIC ENGINEER

WILLIAM KUNZMAN, PE 1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: mail @traffic-engineer.com. Web site: www.traffic-engineer .com. Contact William Kunzman, PE. Traffic expert witness since 1979, both defense and plaintiff. Auto, pedestrian, bicycle, and motorcycle accidents. Largest settlement: $2,000,000 solo vehicle accident case against Caltrans. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County Road Department, City of Irvine, and Federal Highway Administration. Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work— UCLA; graduate work—Yale University.

76 Los Angeles Lawyer November 2004 Classiﬁeds

NEED AN EXPERT WITNESS, legal consultant, arbi- available. Near the Torrance Courthouse at 2276 Attorney Wanted trator, mediator, private judge, attorney who out- Torrance Blvd. Rent includes a two (2) office suite, sources, investigator, or evidence specialist? Make phone system, with voicemail, full-time reception- ESTABLISHED LAS VEGAS FIRM SEEKING EXPERI- your job easier by visiting www.expert4law.org. ist, conference room, and small law library. ENCED, licensed commercial litigator with mini- Sponsored by the Los Angeles County Bar Associa- $750.00 per month. Must see. Call Kere at (310) mum 3 years’ litigation experience. Excellent acad- tion, expert4law—the Legal Marketplace is a com- 320-9742. emic, writing, and computer skills required. Send prehensive online service for you to find exactly resume, qualifications, and writing samples to the experts you need. NEW DELUXE VALLEY EXECUTIVE SUITES. Recently Administrative Director, O’Reilly & Ferrario LLC, 325 built Sherman Oaks deluxe fully furnished, execu- S. Maryland Pkwy., Las Vegas, NV 89101, fax (702) tive suites available with full amenities on a 384-6266 or e-mail [email protected]. Counseling and Psychotherapy month-to-month basis or long terms. Rates vary A LAWYER’S COUNSELOR. Obtain expert help and based on square footage and services. Must see! Consultants/Experts understanding in gaining relief from job and career Please call (818) 528-1455. concerns, stress, self-defeating patterns, anger, CONSTRUCTION EXPERTS: More than 40 years of procrastination, and relationship conﬂict. Richard SOUTHERN CALIFORNIA. FREE. Executive Suite construction expertise provides you and your client Gottfried, JD, MBA, MFT (Lic.# MFC32871). Confi- Offices Guide. Eighty-page booklet lists over 150 with formidable forensic expert witnesses and dential. (310) 207-5177. buildings in Los Angeles, Orange, San Diego Coun- compelling litigation support of complex and high- ties and the Inland Empire that offer executive ly technical issues. Contact MPGroup/Michael S. suites. Guide includes office prices, amenities Poles, GC, CM, RCI, DABFET, ACFE, Construction Office Space offered, photos, maps, and contacts. Mailed the Expert/Mediator. Telephone: (323) 874-8973. Web: same day ordered. Call 24 hours: (800) 722-5622. www.mpgroup.com. ATTORNEYS WANTED. Law office building space

PLEASE SUPPORT THOSE THAT SUPPORT THE LOS ANGELES COUNTY BAR ASSOCIATION!

CLINICA PARA LOS LATINOS • SERVING THE LATIN COMMUNITY NORIEGA CHIROPRACTIC CLINICS, INC. Is proud to announce the Grand Opening of SAN FERNANDO HEALTH CENTER 500 S. BRAND BOULEVARD SAN FERNANDO, CA 91340-4002 (818) 838-1158 Personal Injury and Worker’s Comp cases accepted on lien basis.

*MONTEBELLO HEALTH EL MONTE HEALTH HUNTINGTON PARK POMONA HEALTH VICTORY HEALTH SERVICES CENTER HEALTH CENTER CENTER CENTER 901 W. Whittier Blvd. 2163 Durfee Rd. 3033 E. Florence Ave. 1180 N. White Ave. 6420 Van Nuys Boulevard Montebello, CA 90640 El Monte, CA 91733 Huntington Park, CA 90255 Pomona, CA 91768 Van Nuys, CA 91401 (323) 728-8268 (626) 401-1515 (323) 582-8401 (909) 623-0649 (818) 988-8480

CRENSHAW HEALTH *ONTARIO HEALTH HIGHLAND PARK HEALTH SO. CENTRAL HEALTH WHITTIER HEALTH CENTER SERVICES CENTER CENTER SERVICES 4243 S. Crenshaw Blvd. 334 N. Euclid Ave. 5421 N. Figueroa St. 4721 S. Broadway 13019 Bailey Ave. Suite F Los Angeles, CA 90008 Ontario, CA 91764 (Highland Park Plaza) Los Angeles, CA 90037 Whittier CA 90601 (323) 291-5733 (909) 395-5598 Highland Park, CA 90042 (323) 234-3100 (562) 698-2411 (323) 478-9771 1-800-624-2866 *Medical facilities in Montebello and Ontario only

Los Angeles Lawyer November 2004 77 HE LOS ANGELES COUNTY BAR FOUNDATION’S audit, the Foundation hereby lists all individuals who made 2003-2004 direct mail fundraising campaign raised contributions of $200 or more, and all law firms, T approximately $200,000 from corporations, founda- corporations, foundations, and other organizations that tions, individuals, law ﬁrms, and others. Contributions from law contributed $1,000 or more during the period beginning ﬁrms totaled $101,700; individuals contributed $70,566; and July 1, 2003, and ending June 30, 2004. If you are not listed corporations, foundations, and others contributed $27,700. In below, and you made a contribution to the Foundation addition to these direct contributions, approximately $81,000 fitting any of the above criteria, please contact the was contributed to the Foundation by individuals, corporations, Foundation’s independent certified public accountants, and law firms by means of the Association’s annual dues Green, Hasson & Janks LLP, by calling Gayle Whittemore statement voluntary contribution. 2003-2004 directly at (310) 873-1605. The Foundation wishes to express sincere thanks to all Fund Drive The Foundation regrets that space limitations prevent who contributed during the 2003-2004 campaign. As part Results the listing of the names of all contributors. of the procedures required in connection with its annual

INDIVIDUAL Rhonda R. Trotter Reed Smith LLP Courthouse News Service HONOR ROLL CONTRIBUTIONS Robert S. Warren Sidley Austin Brown & Participants have contributed, Wood LLP IN MEMORY OF... $10,000 or more $200-$499 or pledged to contribute, the MERAV BARANY, by amounts shown for each Ruth J. Lavine Mollie F. Benedict $1,000-$1,999 William J. Bogaard Allen, Matkins, Leck, Gamble & Marc L. Sallus category in annual minimum $2,000-$9,999 installments of at least $1,000. Lester O. Brown Mallory LLP DAVID A CATHCART, by Jennifer A. Bensch (List includes participants as of Patricia Egan Daehnke Baker & Hostetler LLP LACBA Labor & Employment John J. Collins 6/30/04.) Richard C. & Susan K. Davidoff Bergman & Dacey, Inc. Law Section Daniel J. Woods Feris M. Greenberger Bonne Bridges, Mueller, CHARLES R. ENGLISH, by Founder ($50,000 or more) $1,000-$1,999 Alan N. Halkett O’Keefe & Nichols APC Teresa A. Beaudet Hyman J. Bradofsky Don Mike Anthony Jacqueline J. Harding Cotkin, Collins & Ginsburg APC William J. Bogaard Hutto Patterson Charitable David B. Babbe Dena A. Kleeman Cox Castle & Nicholson LLP LeAnne E. Maillian Foundation Charles G. Bakaly, Jr. Philip H. Lam Dewey Ballantine Patrick F. Milne J.W. & Ida M. Jameson Jamie Broder Bernard E. & Joan M. LeSage Epstein, Becker & Green Judge & Mrs. Harvey A. Foundation Robert E. Carlson LeAnne E. Maillian Ervin, Cohen & Jessup LLP Schneider Hon. Richard A. & Ruth J. Walter Cochran-Bond James G. Phillipp Fried, Frank, Harris, Shriver & John D. Taylor Lavine Glen B. Collyer Barbara W. Ravitz Jacobson LLP Donald C. Mitchell Knox M. Cologne III Susan Steinhauser & Daniel Girardi & Keese PAUL GILLETTE, by Ralph J. Shapiro Albert F. Davis Greenberg Greines, Martin, Stein & Larry & Bobbie Liebenbaum Benefactor ($25,000 - Stanley F. Farrar Patricia A. Van Dyke Richland LLP NATHAN HERZBERG, by $49,999) Richard E. Hodge Caroline C. Vincent Hahn & Hahn LLP Robin E. Harvey & Mitchell B. Robert K. Johnson Haight, Brown & Bonesteel LLP Cohen Roy H. Aaron Martha B. Jordan LAW FIRM CONTRIBUTIONS Heller, Ehrman, White & Jules & Doris Stein Foundation TIM LIMERT, by James H. Kindel, Jr. $15,000 and above McAuliffe LLP Lloyd & Susan Stockel Larry & Bobbie Liebenbaum Margaret Levy Morrison & Foerster Hochman, Salkin, Rettig, Patron ($15,000 - $24,999) James C. Martin Foundation Toscher & Perez P.C. HENRY STEIN, by Joseph R. Austin Robin Meadow Horvitz & Levy LLP Sheryl E. Stein $9,000-$14,999 William J. Bogaard Hon. Margaret A. Nagle Hughes, Hubbard & Reed LLP LLOYD STOCKEL, by Robert E. Carlson Covert E. Parnell III Latham & Watkins LLP Manatt, Phelps & Phillips LLP Larry & Bobbie Liebenbaum Richard Chernick John J. Quinn $6,000-$8,999 Mayer, Brown, Rowe & Maw LLP Knox M. Cologne III VINCENT M. TOWNSEND, JR., by Wayne Simon Bingham McCutchen LLP Parker, Milliken, Clark, O’Hara Stephen R. English & Molly Donna J. Zenor & Samuelian David S. Ettinger $5,000-$5,999 Munger Pillsbury Winthrop LLP $500-$999 Akin, Gump, Strauss, Hauer & IN HONOR OF... Stanley F. Farrar Piper Rudnick LLP Linda Auerbach Allderdice Feld LLP Robert K. Johnson Reish Luftman Reicher & ROY H. AARON, by Donald P. Baker O’Melveny & Myers LLP Robin Meadow Cohen APC Richard C. & Susan K. Davidoff Teresa A. Beaudet Paul, Hastings, Janofsky & Gavin Miller Robie & Matthai Kenji Machida Michael I. Blaylock Walker LLP In Honor of David Pascale Rutter, Hobbs & Davidoff Inc. Thomas M. Brown Sheppard, Mullin, Richter & DONALD P. BAKER, by John J. Quinn Sedgwick, Detert, Moran & Carolyn C. Burger Hampton LLP Martha B. Jordan In Honor of Richard Walch Arnold LLP Jordan S. Cohen David K. Robinson $3,500-$4,999 Stroock & Stroock & Lavan LLP Sponsor ($10,000 - $14,999) Brian K. Condon Munger, Tolles & Olson Sullivan & Cromwell SIDNEY MACHTINGER, by Don Mike Anthony Andrew J. Demetriou Skadden, Arps, Slate, Meagher White & Case Barbara Kort John Carson Laura V. Farber & Flom LLP ROBIN MEADOW, by Gerald L. Chaleff Gregg A. Farley OTHER CONTRIBUTIONS John J. Collins Richard E. Garcia $2,000-$3,499 Susan Steinhauser & Daniel $8,000 and above Greenberg Charles R. English Mark Garscia Alschuler Grossman Stein & Richard E. Garcia American Corporate Counsel Richard B. Goetz Kahan LLP NEAL S. MILLARD, by Harry L. Hathaway Association – Southern Jo-Ann W. Grace Arnold & Porter Bernard & Katherine Millard Richard E. Hodge Rex S. Heinke Foley & Lardner California Chapter DONNA J. ZENOR, by Patrick M. Kelly Jeffrey M. Jacobberger Fulbright & Jaworski LLP $3,500-$7,999 Morrison & Foerster Joel W. H. Kleinberg Larry & Bobbie Liebenbaum Greenberg Glusker Los Angeles County Bar Foundation Neal S. Millard Charles E. Michaels Howrey Simon Arnold & Association – Labor Covert E. Parnell III Theodore N. Miller White LLP & Employment Law Section The Foundation would also like Joseph Taback Audra M. Mori Irell & Manella LLP $2,500-$3,499 to give special recognition to David H. Vena Richard H. Nakamura, Jr. Jaffe & Clemens the following individuals Hon. Charles S. Vogel Thomas D. Phelps Jones Day Los Angeles County Bar whose participation in various Robert S. Warren Patricia D. Phillips Kirkland & Ellis LLP Association – Litigation pledge programs (as of 6/30/04) Daniel J. Woods Marc L. Sallus McKenna, Long & Aldridge LLP Section reﬂects a ﬁrm commitment to Laura A. Seigle Milbank, Tweed, Hadley & $1,000-$2,499 Friend ($5,000 - $9,999) the Foundation’s goals: Sheryl E. Stein McCloy LLP Bank of The West Joseph W. Aidlin

78 Los Angeles Lawyer November 2004 Steven W. Bacon John Carson Arlene Colman-Schwimmer John R. Stahr Susan Koehler Sullivan Donald P. Baker Gerald Chaleff Brian K. Condon Sheryl E. Stein Paul D. Tripodi II Patricia H. Benson Richard Chernick Douglas C. Conroy David W. Steuber Kim Tung Walter Cochran-Bond Knox M. Cologne III Hon. H. Walter Croskey Clinton R. Stevenson Justin Walcott Paul F. & Isabel R. Cohen Donald A. Daucher Patricia Egan Daehnke Richard J. Stone Glen B. Collyer Hon. Lee Smalley Edmon Grace M. Danziger Linda M. Stude SUPPORTING MEMBERS Joe D. Crider Charles R. English Albert F. Davis Hon. Robert M. Talcott Individuals who have pledged Donald A. Daucher Stephen R. English Katessa Charles Davis Stuart P. Tobisman to contribute a minimum of Lee Edmon & Dick Burdge Larry R. Feldman Andrew J. Demetriou Franklin Tom $100 annually to the Larry R. Feldman David E. Gordon Pamela Dunn & Maria Louise Clyde E. Tritt Foundation. (List includes Mark Garscia Hon. William P. Gray Cousineau Eugene L. Trope participants as of 6/30/04.) Albert S. Golbert Sarah Heck Griffin Gregory L. Evans Rhonda R. Trotter John W. Alden, Jr. David E. Gordon & Mary D. Harry L. Hathaway Jonathan W. Evans Susan J. Troy Don Mike Anthony Lane Rex S. Heinke Laura V. Farber David C. Tseng Hon. Helen I. Bendix Hon. William P. Gray John D. Hussey Gregg A. Farley Robert C. Vanderet Michael H. Bierman Sarah Heck Griffin Joan R. Isaacs Hon. Lisa Hill Fenning Patric M. Verrone Maxwell M. Blecher Rex S. Heinke Leonard S. Janofsky Hon. Macklin Fleming Caroline C. Vincent Jonathan M. Brandler Hon. William P. Hogoboom Vincent W. Jones Georgia Franklin-Shutan Richard S. Volpert Brad D. Brian Maria D. Hummer Patrick M. Kelly Jeffrey C. Freedman Richard Walch Lester O. Brown John D. Hussey Ruth J. Lavine Alan H. Friedenthal John F. Walker, Jr. William Clark Brown Joan R. Isaacs Fred L. Leydorf James J. Gallagher Stuart B. Walzer Elizabeth M. Calciano Leonard S. Janofsky Robin Meadow Patricia A. Gartner Michael R. Whalen Prof. Christopher D. Cameron Vincent W. Jones Neal S. Millard Robert T. Gelber Karen B. Wong & Scott W. Lee Hon. H. Walter Croskey Martha B. Jordan Gavin Miller Russell T. Ginise Kenneth B. Wright Melissa A. Dalziel James H. Kindel, Jr. Hon. Margaret M. Morrow Richard B. Goetz Hon. Paul Wyler Brian L. Davidoff Sandra R. King John F. O’Hara Hon. Arnold H. Gold Rosalyn S. Zakheim Katessa Charles Davis Richard G. LaPorte Andrea Sheridan Ordin Prof. Max A. Goodman David S. Eisen 2003-04 FELLOWS Bernard E. & Joan M. LeSage David J. Pasternak Jo-Ann W. Grace Jack I. Esensten Margaret Levy Patricia Phillips Jan Charles Gray Individuals who contributed a Michele E. Flurer Larry & Bobbie Liebenbaum John J. Quinn Hon. Paul Gutman minimum of $500 between Thomas A. Freiberg, Jr. James C. Martin Sheldon H. Sloan Alan N. Halkett 7/1/03-6/30/04 and are not Robert S. Gerstein Malissa Hathaway McKeith Susan R. Stockel Rex Heeseman Life Fellows or Honor Roll Mark T. Gillett Theodore N. Miller John D. Taylor Robert Henigson participants. Philip G. Grant Hon. Anthony J. Mohr Hon. Charles S. Vogel Grover R. Heyler David B. Babbe Janice R. Hugener Hon. Margaret M. Morrow Robert S. Warren Edward W. Hieronymus Jamie Broder Joan R. Isaacs Hon. Margaret A. Nagle Martin H. Webster Bernard S. Kamine Jordan S. Cohen Lois M. Jacobs John F. O’Hara John S. Welch Kelly W. Kay Jeffrey M. Jacobberger Henry J. Josefsberg Ronald L. Olson Francis M. Wheat Russel I. Kully Ruth D. Kahn Andrea Sheridan Ordin Donna J. Zenor Frederick W. Lambert BARRISTERS FELLOWS Terri D. Keville David J. & Cynthia F. Pasternak John A. Lapinski A Barristers Fellow has Judy A. Kim LIFE FELLOWS Aulana L. Peters Bruce H. Leiserowitz contributed, or pledged to Sandra R. King Thomas D. Phelps A Life Fellow has contributed, Roderick W. Leonard contribute over a ﬁve-year Marcia L. Kraft Patricia Phillips or pledged to contribute, Fred L. Leydorf period, $500 to the Foundation. Miriam A. Krinsky Douglas Ring $2,500 to the Foundation. Michael S. Lurey Barristers are individuals who Robert N. Kwan Reade H. Ryan, Jr. Annual installments must be LeAnne E. Maillian are 36 years of age or less or Edward A. Landry Harvey L. Silbert at least $500. (List includes Vicki E. Marmorstein & Seth A. who have been in practice 10 Andrea B. Liebenbaum Wayne Simon participants as of 6/30/04.) Ribner years or less. (List includes Tomas R. Lopez Sheldon H. Sloan James N. Adler Michael E. Meyer participants as of 6/30/04.) LeAnne E. Maillian Linda J. Smith Linda Auerbach Allderdice Charles E. Michaels Barbara J. Bacon Victor I. Marmon John D. Taylor Dean V. Ambrose Audra Mori Randee Barak Linda Wight Mazur William W. Vaughn Hon. Orville A. Armstrong Richard T. Morrow Sandeep Baweja Frederick L. McKnight Martin H. Webster Richards D. Barger Richard H. Nakamura, Jr. James W. Bilderback II Pansky & Markle Hon. Robert Weil Jane H. Barrett Mark A. Neubauer Gabrielle Harner Brumbach John J. Quinn John S. Welch Teresa A. Beaudet Robert H. Nida Elizabeth M. Calciano Barbara W. Ravitz Francis M. Wheat Lori R. Behar Andrew J. Nocas Luci-Ellen M. Chun Jerrold B. Reilly In Memory of Arnold V. Mollie F. Benedict Stacey Olliff & Tracy Rich Susan Skelding Couig Pauline Y. Robins Winthrop Jennifer A. Bensch Gregg Oppenheimer Rebecca A. Delﬁno Toby J. Rothschild Donna J. Zenor Blanche C. Bersch Lee R. Petillon Stuart R. Fraenkel Peter Schnaitman William M. Bitting Karen Randall Joseph T. Hahn Michael & Lara Schwartz PRESIDENTS CLUB Michael I. Blaylock Barbara A. Reeves Jacqueline J. Harding Barry E. Shanley Former Bar Association or Bar Stephen M. Blitz Kenneth O. Rhodes Andres C. Hurwitz Arthur F. Silbergeld Foundation presidents who Merrick J. Bobb Hon. Andria K. Richey Nancy A. Kaiser Ross E. Stromberg have contributed or pledged Robert C. Boffa David K. Robinson Seth D. Levy Linda M. Stude to contribute a minimum of Phillip L. Bosl Irving Rosenfeld Cindy J. Macho Paul D. Supnik $5,000 to the Foundation. (List Joel E. Boxer Alan I. Rothenberg Cori McGraw Michael A. Tomasulo includes participants as of Thomas M. Brown Deborah J. Ruosch Todd F. Nevell Wendy A. Tucker 6/30/04.) Geoffrey L. Bryan Harvey I. Saferstein Jennifer F. Novak Patricia A. Van Dyke Roy H. Aaron Carolyn C. Burger Nicholas P. Saggese Angela J. Reddock Caroline C. Vincent Don Mike Anthony Lauren Burton Marc L. Sallus Andrea Schoor Richard Walch Joseph R. Austin Claudia Carver Laura A. Seigle Lara Drino Schwartz Earl P. Willens Donald P. Baker Paul A. Catalano Patricia L. Shanks Lorin D. Snyder Roxanne M. Wilson Robert E. Carlson Edward C. Cazier, Jr. Fran & Leonard Smith Margaret P. Stevens Michael C. Zellers

Fundraising for the current ﬁscal year (7/1/2004-6/30/2005) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF Web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2004 grant recipients. You may also contact the Foundation’s administrator, Linda Stude, at (213) 896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, P.O. Box 55020, Los Angeles, CA 90055

Los Angeles Lawyer November 2004 79 Computer Counselor BY GORDON K. ENG

Considering the Utility of Digital Pens

PEOPLE STILL RELY ON PEN AND PAPER to record important ideas and events. Pens remain unbeatable in terms of portability and ease of use, and their digital manifestation is now available to preserve and tran- scribe handwritten notes to a computer. I reviewed three digital pens, all having the properties of a normal ink pen and not requiring a wire connection while they are used to write. These pens also have the ability to digitally record their strokes, whether lettering or illustration. The motion is recorded into an image file that can be saved or exported in a common image file format. Two pens use technology developed by Anoto. They are offered by Logitech (www.logitech.com) and Nokia (www.nokia.com). A different digital pen technology is offered by Seiko Instruments (www.seikosmart.com). The Logitech is the largest pen of the group. Its girth is about three times that of a normal stick pen. This heft is required to hold the memory, image capture technology, and a rechargeable battery. Surprisingly, the pen is still light in weight. The Logitech pen holds about 40 pages of notes at a time, but users should expect to be able to capture no more than 20 to 25 pages on one battery charge. The information captured by the pen is downloaded to a computer through a USB dock- The Nokia pen is somewhat sleeker that the Logitech and looks ing station, which can also recharge the pen’s batteries. more like a normal pen but is still a bit heftier than a fountain pen. For the Logitech pen to capture your handwriting, you must use Although the Nokia uses the same technology as the Logitech, it oper- special Anoto paper. This paper can be purchased in various standard ates in a different manner. The Nokia is designed to be used with a sizes and has a slightly gray color because it is imprinted with very Bluetooth-enabled phone. The pen captures handwriting and then small dots, which the pen uses as a frame of reference for capturing sends it to a cell phone over a Bluetooth connection. The cell phone handwriting and drawings. To facilitate downloading, the dot pat- can then send the originally handwritten note via e-mail. With a PC, terns vary on different pages and parts of pages. however, the Nokia requires users to dock the pen to a USB connection. For example, notebooks have pages that are formatted for e- Nokia claims the pen holds up to 100 pages in its memory. Like mail messages, appointments, and to-do items. Formatted pages the Logitech pen, however, users can expect the battery to need have sections for identifying information such as subject, date, and recharging after about 20 to 25 pages or about 2 hours of steady use. whether the user is finished writing on the page. The different sections As with the Logitech, users need to use Anoto paper for the Nokia have distinct dot patterns that the pen recognizes; information in the to capture handwriting, and to connect the Nokia to a PC, the user different areas automatically flows into corresponding fields on a com- must have Microsoft Net Framework installed. The Nokia pen does puter. Thus, when the pen’s information is downloaded, the data is not come with the trial version of the My Script application and does transferred into e-mail, text, or a calendar. Anoto paper is available not have the MS Word and Outlook integration that is found with through different vendors, including Mead Westvaco (www the Logitech pen. .ataglance.com), Esselte Worldwide (www.esselte.com), or Oxford Easybook (www.oxfordeasybook.com). The Seiko In size, the Seiko pen is the most similar to a traditional pen. The Seiko A Software Requirement emits an ultrasonic sound that is received by a clip that can be The Logitech comes with handwriting recognition software called My attached to the top of a pad. No special paper is required. The clip, Script, but it is a 30-day trial version. Users are required to train the in turn, must be attached by a USB cable to a computer or by an software by writing the alphabet and various symbols. In order to infrared device connected to a PDA. The pen, receiver clip, and obtain reasonable results, users must print rather than use cursive, and infrared transmitter all fit in the pen’s carrying case. The pen works very consistent handwriting is a must. In my testing the results were with Palm and Microsoft Pocket PC devices, and the Seiko’s software uneven. Someone who consistently writes in print would be better able installation is simple. Another potential bonus: Microsoft Net to make full use of the Logitech pen. The Logitech software can only Framework is not required. be installed on a computer that has Microsoft Net Framework. As hard as I tried, I could not install Net Framework on a Windows 98 Gordon K. Eng is a business transactional and real estate lawyer in Torrance

RICHARD EWING computer, but it is preinstalled on XP. and a member of the Los Angeles Lawyer Editorial Board.

80 Los Angeles Lawyer November 2004 The Seiko is conﬁgured to work with a PDA. To use the Seiko this way, load its application onto the PDA via a hotsync with a desktop computer. Once that is accomplished, the user is ready to capture handwritten notes via the PDA. The pen is smaller than the other two because it does not have on-board memory. The PDA captures the handwriting as it is transmitted from the pen. The software also allows a direct transfer of images generated by the pen and stored on the PDA to the user’s desktop computer. If the PDA has e-mail capability, the user may send handwritten notes as an e-mail attachment. The Seiko pen does not come with handwriting recognition software. However, a handwriting recognition program called Rite Script (visit http://pi.parascript.com/piweb /products/ritescript) is available. In order for the software to recognize a section of text, the Anita Rae Shapiro user must cut and paste the text into a MS SUPERIOR COURT COMMISSIONER, RET. Word document. I found the accuracy of Rite Script to be better than that of My Script. Rite PRIVATE DISPUTE RESOLUTION Script also works wonders with hand-drawn PROBATE, CIVIL, FAMILY LAW charts. It will straighten lines and make your PROBATE EXPERT WITNESS circles and rectangles look like you used a stencil to sketch them. TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 The Seiko pen must be in line of sight E-MAIL: [email protected] with the clip sensor. This may present diffi- http://adr-shapiro.com culty for users who have a tendency to curve FEES: $300/hr their hand around their pen. If your hand rests between the pen and the top of the page, where you would ordinarily put the sensor clip, you will block the signal from the pen. One solution is to put the sensor clip at the bottom of the page, although the images generated by this technique must be turned right- side-up after they have been captured. The Seiko uses AAA batteries for the clip and watch batteries for the pen. The watch batteries for the pen last longer than the rechargeable batteries for the Logitech and Nokia pens but must be replaced rather than recharged. The prices of all three pens are in Mount Blanc territory. The Logitech sells for $129 to $199, the Nokia for $249, and the Seiko for $97 to $110. The Nokia and Seiko pens suc- ceed in the task of capturing and saving what the user writes. This feature alone may be reason enough for some users to begin using a digital pen. The Logitech has promise as a more complete solution, but its handwriting recognition software must improve—or the user must have or learn to have highly legi- ble handwriting—before the Logitech’s added JudgmentsEnforcedJudgmentsEnforced capabilities can be used to advantage. None of the solutions allow the user simply to pick up the pen and go. The user either needs Law Office of Donald P. Brigham Anoto paper, a compatible cell phone, or a PDA and receiver clip. Even with these incon- 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 veniences, however, the pens are portable, P: 949.206.1661 potentially valuable tools to capture infor- F: 949.206.9718 mation and preserve it digitally. ■ [email protected] AV Rated

Los Angeles Lawyer November 2004 81 Index to Advertisers

Advisory Service Group, p. 75 Jeffrey Kichaven, p. 6 ROEL Construction Company, p. 51 Tel. 310-937-7700 Tel. 310-556-1444 www.jeffkichaven.com Tel. 619-297-4156 www.roel.com Alternative Resolution Centers, p. 28 Fred M. Johnson, PhD., p. 66 Rogers, Sheffield & Campbell, p. 40 Tel. 310-312-6002 Tel. 714-526-6661 e-mail: [email protected] Tel. 805-963-9721 www.high-techlawyer.com AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 66 KARS Advanced Materials, Inc., p. 63 Ronsin Legal, p. 81 Tel. 800-275-8903 www.amfs.com Tel. 714- 892-8987 www.karslab.com Tel. 323-526-7300 www.ronsinlegal.com The Andela Consulting Group, Inc., p. 73 Krycler, Ervin, Taubman & Walheim, p. 72 Rosen & Associates, PC, p. 57 Tel. 818-380-3102 Tel. 818-995-1040 www.ketw.com Tel. 213-362-1000 www.rosen-law.com Aon Direct Administrators/LACBA Professional Liability, p. 5 Lawscribe, p. 41 Jonathan S. Rutchik, MD, p. 66 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 818-448-5592 Tel. 415-771-3133 www.neoma.com A R Tech Forensic Experts, Inc., p. 45 Lawyers’ Mutual Insurance Co., p. 7 Rutter Hobbs & Davidoff, Incorporated, p. 17 Tel. 818-344-2700 www.lawinfo.com Tel. 800-252-2045 www.lawyersmutual.com Tel. 310-286-1700 www.rutterhobbs.com AT&T Wireless, Inside Back Cover Lexis Publishing, Inside Front Cover, p. 15 Sales Tax Resource Group, p. 33 Tel. 213-253-2400 www.attwireless.com www.lexis.com Tel. 714-377-2600 www.salestaxresource.com Ballenger, Cleveland & Issa LLC, p. 47 Lineback, Inc., p. 71 Sanli Pastore & Hill, Inc., p. 6 Tel. 310-873-1717 Tel. 714-565-1012 e-mail: [email protected] Tel. 310-571-3400 www.sphvalue.com Bridge Settlement Corporation, p. 27 Law Offices of Boyd S. Lemon, p. 57 Spiegel Property Damage Consulting and Forensics, p. 73 Tel. 877-5-SETTLE www.structuredsettlements.com Tel. 310-827-0840 www.legalmalexpert.com Tel. 800-266-8988 www.propertydamageinspections.com Law Office of Donald P. Brigham, p. 81 Arthur Mazirow, p. 42 Steven R. Sauer APC, p. 34 Tel. 949-206-1661 e-mail: [email protected] Tel. 310-255-6114 e-mail: [email protected] Tel. 323-933-6833 e-mail: [email protected] Bruce Broukhim, MD, p. 68 MCLEforLawyers.com, p. 34 Stephen Sears, CPA-Attorney at Law, p. 81 Tel. 818-556-6500 Tel. 310-552-5382 www.MCLEforlawyers.com www.searsatty.com Cohen Miskei & Mowrey, p. 41 Gil Mileikowsky, MD, p. 76 Anita Rae Shapiro, p. 81 Tel. 818-986-5070 e-mail: [email protected] Tel. 310-858-1300 www.baby4you.net Tel. 714-529-0415 www.adr-shapiro.com Commerce Escrow Company, p. 35 Clinton E. Miller, JD, p. 59 Law Offices of James A. Stearman, p. 40 Tel. 213-484-0855 www.comescrow.com Tel. 408-279-1034 www.quikpage.com/m/millerjd el. 714-870-8501 e-mail: [email protected] D. Wylie Associates, p. 50 Miod and Company, LLP, p. 72 Stonefield Josephson, Inc., p. 9 Tel. 805-681-9289 www.drivingfatigue.com Tel. 818-905-5822 www.miod-cpa.com Tel. 866-225-4511 www.sjaccounting.com Daniel Powers, MD, Inc., p. 53 MP Group, p. 8 Jeff Sugar, M.D., p. 64 Tel. 800-222-6768 www.TheMRIPeople.com Tel. 310-390-4936 www.mpgroup.com Tel. 310-322-6933 e-mail: [email protected] DataChasers.com, p. 54 Mr. Truck, p. 27 Taylor, Simonson & Winter LLP, p. 34 Tel. 909-780-7892 www.datachasersinc.com Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected] Tel. 909-625-4785 www.tsw-lawyers.com Deadlines On Demand, p. 13 Narver Associates, Inc., Insurance Agency, p. 43 TASA, Technical Advisory Service for Attorneys, p. 68 Tel. 888-363-5522 www.deadlines.com Tel. 626-943-2200 www.narver.com Tel. 800-523-2319 www.tasanet.com Desmond, Marcello & Amster, p. 50 National Institute for Trial Advocacy, p. 34 UCLA Extension, p. 42 Tel. 310-216-1400 www.dmavalue.com Tel. 800-225-6482 www.nita.org Tel. 310-206-1409 www.uclaextension.edu Diversified Risk Management, Inc., p. 27 National Properties Group, p. 47 UTIMO Organization, Inc., p. 58 Tel. 800-810-9508 www.diversifiedriskmanagement.com Tel. 310-516-0022 Tel. 714-560-8999 www.geotechnical.com E. L. Evans Associates, p. 50 NeuroLegal Sciences, p. 67 Uptown Wellness Center, p. 41 Tel. 310-559-4005 e-mail: [email protected] Tel. 602-667-9100 www.neurolegalsciences.com Tel. 562-789-1999 www.uptown.topchiro.com Field & Test Engineering, Inc., p. 60 Nextel Communications, p. 1 URS, p. 59 Tel. 562-743-7230 e-mail: [email protected] Tel. 866-805-9890 reference MLSAB www.nextel.com/lacba Tel. 213-996-2571 www.urscorp.com Forensic Expert Witness Associates, p. 45 Noriega Clinics, p. 77 Verizon Wireless, p. 11 Tel. 949-640-9903 www.forensic.org Tel. 323-728-8268 Tel. 866-899-2862 www.verizonwireless.com ForensisGroup Inc., p. 53 Online Security, p. 76 Vision Sciences Research Corporation, p. 75 Tel. 626-795-5000 www.forensisgroup.com Tel. 310-815-8855 x 228, www.onlinesecurity.com Tel. 925-837-2083 www.apgvsrc.com Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 21 Gary Ordog, MD, p. 64 Temmy Walker, Inc., p. 73 Tel. 310-820-3322 www.fragomen.com Tel. 661-799-1689 http://dwp.bigplanet.com/toxic Tel. 818-760-3355 Marc J. Friedman, M.D., p. 59 Tel. 818-901-6600 e-mail: [email protected] Ostrove, Krantz & Associates, p. 4 Law Offices of Alan D. Wallace, p. 75 Tel. 323-939-3400 www.lawyers.com/ok&alaw Tel. 818-501-0133 www.expertwitnessre.com Fulcrum Financial Inquiry LLP, p. 2 Tel. 213-787-4100 www.fulcruminquiry.com Pacific Construction Consultants, Inc. (PCCI), p. 54 Bruce Wapen, MD, p. 70 Tel. 916-638-4848 www.pcciconsultants.com Tel 650-577-8635 www.drwapen.com G. L. Howard CPA, p. 42 Tel. 562-431-9844 e-mail: [email protected] Pacific Construction Management, Inc., p. 60 Washington Mutual/Ted Burkow, p. 40 Tel. 800-576-7264 www.pcmi-experts.com Tel. 310-777-2327 www.wamuloans.com/ted.burkow Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 47 Tel. 310-274-2304 Pacific Health & Safety Consulting, Inc., p. 64 West Group, Back Cover Tel. 949-253-4065 www.phsc-web.com Tel. 800-762-5272 www.west.thomson.com Steven L. Gleitman, Esq., p. 4 Tel. 310-553-5080 Graham A. Purcell, MD, p. 72 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 49 Tel. 818-985-3051 www.gpurcellmd.com Tel. 818-981-4226 www.wzwlw.com G. Govine Consulting, p. 61 Tel. 526-564-0502 www.govineconsults.com QLTT International, p. 6 Witkin & Eisinger, LLC, p. 34 Tel. 800-430-3588 www.qltt.com Tel. 310-670-1500 Gursey, Schneider & Company, p. 55 Tel. 310-552-0960 www.gursey.com Quo Jure Corporation, p. 27 Dr. Lewis Yablonsky, PhD., p. 57 Tel. 800-843-0660 www.quojure.com Tel. 310-450-3697 e-mail: [email protected] Hargis & Associates, Inc., p. 63 Tel. 800-554-2744 www.hargis.com Jan Raymond, p. 8 Zivetz, Schwartz & Saltsman, p. 53 Tel. 888-676-1947 e-mail: [email protected] Tel. 310-826-1040 www.zsscpa.com Higgins, Marcus & Lovett, Inc., p. 47 Tel. 213-617-7775 www.hmlinc.com Rimkus Consulting Group, Inc., p. 69 ZymaX Forensics, p. 61 Tel. 877-978-2044 www.rimkus.com Tel. 805-544-4696 www.zymaxforensics.com Jack Trimarco & Associates Polygraph, Inc., p. 39 Tel. 310-247-2637 e-mail: [email protected]

82 Los Angeles Lawyer November 2004 CLE Preview

28th Annual IPEL Symposium THE SEARCHABLE CIVIL REGISTER ON SATURDAY, NOVEMBER 13, the Intellectual Property and Entertainment Law ON THURSDAY, DECEMBER 2, the Los Section (IPEL) will present its 28th annual symposium, titled “The Art of the Angeles County Bar Association will present Deal, Hollywood Style.” Speakers including Robert J. Dowling (who will deliver a demonstration of its searchable civil the keynote address), Jay L. Cooper, Eric Weissmann, Beth Roberts, Lawrence J. register database. LACBA has a searchable Ulman, Louis M. Meisinger, and Jeanne Newman will lead programs on database replete with information about production and financing deals, talent deals, and distribution deals. The judges, commissioners, and parties. In symposium will take place at the Bel Air Hotel, 701 Stone Canyon Road in Los addition, LACBA regularly downloads the Angeles. On-site registration will begin at 7:45 A.M., with the program continuing superior court civil register (docket sheets) from 8:30 A.M. to 2:00 P.M. The registration code number is 008645. The prices and has created a search engine allowing below include the meal. for searches by almost any criteria. After learning to use the database, attorneys can $75—CLE+PLUS members research a judge’s history of: peremptory $170—IPEL Section members challenges filed against the judge in any $200—LACBA members given year, motions for summary judgment $235—all at-the-door registrants granted and denied, days spent in trial, 4.75 CLE hours demurrers granted and denied, SLAPP motions granted and denied, motions to Ethics 2004 compel granted and denied, continuances granted and denied, and much more. ON SATURDAY, NOVEMBER 20, the Los Angeles County Bar Association will Researchers can also find out about the present an ethics program titled, “Keeping Current in a World of Change.” number and types of cases in which various parties and law firms are or have been Speakers John W. Amberg, Richard J. Burdge, Stanley E. Goldich, Diane L. involved. For example, is your opposing Karpman, and Judge Michael D. Marcus will discuss four ethics issues: 1) party a vexatious litigant? Which other mediation and arbitration, including disclosure obligations, conflicts of interest, firms has your client retained? This and the confidentiality of mediation discussions, 2) ethics as affecting powerful system will be demonstrated by pocketbook issues—including fee agreements, referral arrangements, conflicts two masters: John Collins, veteran trial of interest, advertising, and multijurisdictional practice, 3) confidentiality of lawyer and current president of LACBA; and privileged communications, including inadvertent disclosures, waiver Rich Walch, the departing executive director situations, and confidentiality agreements in settlements, and 4) responding of LACBA for the last 20 years. The program ethically and effectively to hardball tactics, including how to counter groundless will take place at the LACBA/Lexis litigation, discovery abuses, and scheduling by ambush. The program will take Publishing Conference Center, 281 South place at the LACBA/Lexis Publishing Conference Center, 281 South Figueroa Figueroa Street, Downtown. On-site registration and a meal will begin at 6 P.M., Street, Downtown. On-site registration and the meal will begin at 8:30 A.M., with with the program continuing from 6:30 to the program continuing from 9 A.M. to 12:15 P.M. The registration code number is 7:30 P.M. The registration code number is 008766. The prices below include the meal. 008828. CLE+PLUS members may attend $55—CLE+PLUS members for free. $80—LACBA members $15—LACBA members $100—all others $30—all others 3.25 CLE ethics hours 1 CLE hour

The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update.

Los Angeles Lawyer November 2004 83 Closing Argument BY ROBERT L. BASTIAN JR.

Judging at the Games

IN ADDITION TO INSPIRING MILLIONS around the world, the 2004 that a U.S.-led, three-judge panel incorrectly devalued the start value Summer Olympics offered interesting lessons on the difficulty of of the parallel bars routine of South Korean all-around bronze medal- uniformly judging human performance and technical skill while, at ist, Yang Tae-Young. But for this 0.1 error, Yang would have placed the same time, rewarding the athletic expression of originality and vir- ahead of American gold medalist Paul Hamm. But video review also tuosity. In sport as in law, the more subjective judging becomes, the suggested that judges missed a critical error in Yang’s routine—a 0.2 more a corrosive dilemma intrudes in choosing between ideal process deduction that would have canceled the original mistake. and ideal outcome. In the team preliminary, a Japanese judge controversially informed The opening ceremonies in Athens lent a spectacularly beautiful two U.S. gymnasts that their horizontal bar start value would be 9.8, and meaningful beginning to the Games, reminding us with spectacular notwithstanding that the same routines were consistently scored at imagery of the peculiarly Greek origin of our notions of justice, per- 10.0 in prior international competition. Ironically, the judge involved fectibility, and grace through competition. Implied, however, in our concept of justice is the possibility of corruption; in per- If a judge knows that a judge scoring another event is distorting team fectibility, flaw; and in glory, cowardice. One hitch in the otherwise flawless first night was the dashed expectation that lion- scores, is it ethical for the neutral judge to correct the balance? ized Greek sprinter Kostas Kenteris would light the torch. Instead, he had missed a mandatory drug test the day before, under circumstances heightening suspicions of doping that have dogged his in the controversy had been a competitor on the horizontal bar for career. His suspension underscored how the relative simplicity of offi- Japan in 1976 in Montreal during the men’s team final, which ciating track and field—determining who runs fastest, jumps highest, involved perhaps the most overt attempt to improperly influence or throws farthest—has been replaced by sophisticated laboratory sci- gymnastic judging. Sensing that a Soviet effort to defeat dominant ence, investigation, and legal process. Still, technological innova- Japan was unraveling, a Soviet judge left his station at rings, as the tions add objectivity, incrementally improving the measure of man. Japanese team competed on the last event, to join a caucus among More problematic is fairly rewarding athletic achievement in the horizontal bar judges. His only possible reason for entering the sports that are judged, such as gymnastics, diving, and figure skat- huddle, it would seem, was to exert improper influence. ing, or refereed, such as basketball, soccer, and water polo. Sometimes When cheating appears this blatant, it raises an ethical dilemma judging bias is as prosaic as the sentimentalism of home field advan- for a would-be neutral judge. If the judge knows to a reasonable cer- tage. Although the 2004 Greek gold medalist on rings, Dimosthenis tainty that a judge scoring another event is distorting team scores, is Tampakos, was outstanding, Bulgarian silver medalist Jordon it ethical for the neutral judge to correct the balance by inflating com- Jovtchev’s execution and degree of difficulty were plainly superior. petitors’ scores on the event he or she is judging? If the neutral judge A more corrosive bias is judging influenced by national origin. In gauges the bias and alters scores, the deserving team wins, but the judge men’s gymnastics, for example, controversies with nationalistic over- has corrupted the sport. No amount of chalk will create friction on tones arose over the start values of various routines. The use of a start that slippery slope. It is no sweeping endorsement of situational value is a judging reform introduced to improve scoring objectivity. ethics to suggest that in the case of blatantly corrupt judging, the best Elements of a gymnast’s routine are prescored for difficulty. To com- ethical choice may vary depending upon the situation. pete for a perfect 10, the participant first must complete a certain num- Our daily practice of law can be quite similar, dependent as it is ber of sufficiently difficult skill-routines in combination. From the start on the skill and discretion of judges. Every time a court selects a path value, judges deduct for flaws, such as breaks in form or continuity. that expands or contracts judicial discretion, it potentially alters the Prior to the introduction of start values, men’s routines typically balance between objective and subjective determination and, thereby, began at 9.4 points, with judges permitted to add up to .6 for risk, between process and outcome. The natural imperative, then, difficult originality, and virtuosity—amorphous Olympic values. Predictably, though it may be, is to make judging decisions as objective as possi- the reform has diminished creativity, and risk is now less rewarded. ble, but without sacrificing the freedom—that is, the risk, original- Russian Alexi Nemov, for example, might have taken gold instead of ity, and virtuosity—which is the end goal or, as Aristotle might say, fifth on horizontal bar for his dynamic, crowd-pleasing routine. telos, of individual athletic participation in the Games as well as our Still, the reform provides competitors, judges, and educated spec- individual participation in civic life. ■ tators with better “notice”—that is, a commonly shared objective frame of reference for how a routine will be judged. But reform has Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini, in Los not resolved all problems. Video review, for example, demonstrated Angeles. He competed in gymnastics for the University of Wisconsin, Madison.

84 Los Angeles Lawyer November 2004 When your association membership saves you money on wireless service, it’s an easy call to make.

Members of the Los Angeles County Bar Association can save with AT&T Wireless. Choose from a range of already affordable calling plans and get a 5% discount on qualified wireless service charges each month.

TO SIGN UP AND SAVE CALL: 1 800 459-6524

© 2003 AT&T Wireless. All Rights Reserved. General requirements: Requires credit approval, $36 Activation Fee, annual contract, $175 cancellation fee and a compatible phone. Subject to service terms and conditions and the calling plan brochure for the specific plan you choose. Service not available for purchase or use in all areas. May not be available with other offers. 5% Discount: Available only to active members of associations participating in the AT&T Wireless Association Program or its predecessor. Discount is activated only when you call the toll-free membership verification number listed above. Discount is only available on select AT&T Wireless digital calling plans and only applies to qualified charges as defined in your association’s AT&T Wireless Services Wireless Association Agreement. It may take up to 90 days for the discount to appear on your account. Other terms, conditions and restrictions apply—contact your association or your local AT&T Wireless Account Representative. Better from the ground up. Use West’s® California Reporter ®, Third Series.

Better because its headnotes are written by attorneys who have more experience

writing headnotes for California cases than anyone else. Better because it’s the only

California reporter with Key Numbers. And better because it refers you to some of

the giants of California analysis – Witkin, Rutter, and Miller & Starr – right in its head-

notes. It’s the right environment for your practice. Differences that matter.

For more information, call 1-800-762-5272.