APRIL 2004, VOL.27, NO.2 / $3.00 Los Angeles Lawyer EARN MCLE CREDIT David L

Opinion No. 510 Semiannual Guide to Expert Witnesses Ethics page 84

LosAngelesLawyerAPRIL 2004, VOL.27, NO.2 / $3.00 Los Angeles lawyer EARN MCLE CREDIT David L. Brandon Choice of identiﬁes ethical pitfalls Law Analysis in litigation involving page 37 burning limits policies page 30 Mediation Confidentiality page 14

Protective Orders Burning page 21 Madrid Issues Protocol page 26

Trade Secret Defense page 44 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

page 30 Contents Los Angeles Lawyer departments

The Magazine of the 14 Practice Tips Clarifying the conﬁdentiality of Los Angeles County mediation evidence Bar Association By Joel M. Grossman

April 2004 21 Practice Tips Drafting protective orders for Vol. 27, No.2 conﬁdentiality of documents By Michael H. Strub Jr.

cover 26 Practice Tips Protecting trademarks under the Madrid Protocol By Paul D. Supnik

84 Ethics Opinion No. 510 Fee sharing between ﬁnancial planning company and lawyer employee rendering legal services to customers

87 Computer Counselor Is there a Bluetooth in your future? features By Gordon Eng

columns 30 Burning Issues Both defendants and plaintiffs have important tactical and 12 Barristers Tips ethical decisions to make when litigating under burning limits Practical implications of HIPAA By Alexander S. Gareeb insurance policies

92 Closing Argument By David L. Brandon Speed has been deliberate David L. Brandon, senior counsel By Judge Terry J. Hatter Jr. at Morris, Polich & Purdy, LLP in 89 Classiﬁeds 37 Multiple Choice Los Angeles, practices the Successfully navigating California’s choice of law tests requires 90 Index to Advertisers as much art as science litigation of professional liability 91 CLE Preview By Brian Panish and Kevin Boyle and appellate matters. He is also adjunct professor of appellate Plus: Earn MCLE credit. MCLE Test No. 125, sponsored by CourtCall LLC, appears on page 41. law at Loyola Law School. In

“Burning Issues,” he explores 44 Secret Weapon the concerns that practitioners A well-timed motion requesting trade secret specifications may must address in litigation be the best defense against a claim of misappropriation involving burning limits By Brent Caslin insurance policies. His article begins on page 30. 50 Special Section page 44 Cover photo: Tom Keller Semiannual Guide to Expert Witnesses For all your personal and professional real estate needs (including probate sales) CALL: LosAngelesLawyer LILLIAN WYSHAK VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected]

(310) 273-0223 EDITORIAL BOARD Chair RESIDENTIAL AND COMMERCIAL JERROLD ABELES REAL ESTATE Articles Coordinator GARY RASKIN A broker who speaks your language ANN M. AGUILAR DANIEL L. ALEXANDER REALTOR • ATTORNEY • CPA HONEY KESSLER AMADO ETHEL W. BENNETT R. J. COMER CHAD C. COOMBS KEITH E. COOPER ANGELA J. DAVIS Quo Jure Corporation 1-800-843-0660 HEATHER DAVIS www.quojure.com KERRY A. DOLAN GORDON ENG LAWYERS’ WRITING & RESEARCH [email protected] DANIEL A. FIORE JOSEPH S. FOGEL MICHAEL E. FOX STUART R. FRAENKEL When you can’t do it yourself, but you still need a brief or MICHAEL A. GEIBELSON memo done—and done well, by experienced attorneys who TED HANDEL DEAN HANSELL are skilled writers—turn to Quo Jure Corporation. STEVEN HECHT KATHERINE M. HIKIDA JOHN P. LECRONE Quo Jure provides premium legal writing and research services HYACINTH E. LEUS to practicing attorneys. Our work has contributed to million- PAUL MARKS ELIZABETH MUNISOGLU dollar settlements and judgments. Oppositions to motions for RICHARD H. NAKAMURA JR. summary judgment are our specialty. Call for a free analysis KAREN NOBUMOTO The Winning EdgeTM DENNIS PEREZ and estimate. GERALD F. PHILLIPS EDWARD POLL THADDEUS M. POPE JACQUELINE M. REAL-SALAS NINA RIES SUE CAROL ROKAW KURT L. SCHMALZ JACOB STEIN CARMELA TAN BRUCE TEPPER PATRIC VERRONE JOEL B. WEINBERG

STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Associate 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: $3 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 prohibited. 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 / APRIL 2004 Your research. Your way.

The LexisNexis™ Total Research System for California Attorneys. It’s powerful enough to work the way you do.

The LexisNexis Total Research System for California represents an extraordinary advance in legal research. It’s comprehensive, including such essential content for California attorneys as the California Official Reports, the Judicial Council of California Civil Jury Instructions (CACI), the Matthew Bender® Practice Guide, and California Forms of Pleading and Practice. It’s highly integrated and flexible, allowing you to move fluidly among the pertinent legal resources and public records relevant to each stage in the development of a case. And it’s easy to use, thanks to its powerful research tools for locating, analyzing, and using the information you need. Take your practice to the next level. Get the LexisNexis Total Research System for California attorneys.

For more information, call 877.810.5324 and mention code 203030.

LexisNexis and the Knowledge Burst logo are 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. © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL6675 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503 Telephone 213/627-2727 Visit us on the Internet at www.lacba.org

ASSOCIATION OFFICERS: President ROBIN MEADOW President-Elect JOHN J. COLLINS Senior Vice President EDITH R. MATTHAI Vice President/Treasurer CHARLES E. MICHAELS Assistant Vice President BERNARD E. LESAGE Assistant Vice President DANETTE E. MEYERS Assistant Vice President GRETCHEN M. NELSON Executive Director RICHARD WALCH When tomorrow Associate Executive Director/General Counsel W. CLARK BROWN

is not an option. BOARD OF TRUSTEES DAVID B. BABBE Rely on the same-day court filing specialists. LINDA D. BARKER SCOTT W. CARLSON LUCI-ELLEN M. CHUN KATESSA CHARLES DAVIS KERRY J. DOCKSTADER GARY A. FARWELL DEBRA S. FRANK RICHARD B. GOETZ Call 1- 415-491-0606 or visit www.onelegal.com CRISTINA E. PEREZ GONZALEZ RITA GUNASEKARAN STEPHEN T. HOLZER BRUCE G. IWASAKI SAMANTHA PHILLIPS JESSNER HERBERT KATZ JEFF KICHAVEN OVER 25 YEARS OF SUCCESS DENA A. KLEEMAN JOEL W.H. KLEINBERG We PHILIP H. LAM LAWRENCE E. LEONE ELAINE W. MANDEL Understand JAMES C. MARTIN JUDITH SEEDS MILLER JENNIFER F. NOVAK CYNTHIA F. PASTERNAK Bankruptcy AMY M. PELLMAN WINSTON A. PETERS MARGARET P. STEVENS KIYOKO TATSUI The Legal Side and Clients troubled by debts? KATHLEEN J. TUTTLE The Human Side We are experts at: SCOTT E. WHEELER • Debt Restructuring Plans AFFILIATED BAR ASSOCIATIONS • Chapters 7, 11, and 13 Relief BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. • Conservative Asset Protection CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES Refer your clients with CULVER/MARINA BAR ASSOCIATION confidence: EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY • AV Rating GLENDALE BAR ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION • Free Consultations JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES • Reasonable Fees 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 Professional, Compassionate Solutions LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION Laurence D. Merritt PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION Attorney at Law SAN GABRIEL VALLEY BAR ASSOCIATION Phone: 818.710.3823 • email: [email protected] SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA Internet: www.legalknight.com SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION Formerly with Merritt & Hagen WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 LOS ANGELES LAWYER / APRIL 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 Strength. Stability. Longevity. Please Fax back Facing a legal malpractice claim is something every lawyer and firm must consider. You need the right insurance Premium Indication coverage and expert legal defense at hand. Through sheet for a Continental Casualty Company, CNA has been providing competitive price California attorneys professional liability insurance for from CNA. more than thirty years. Law firms throughout California form our network of (only if you are not specialists in legal malpractice and are prepared to currently insured defend you if a claim arises. Your defense costs can be covered in addition to (or outside) your limits of liability by CNA.) and the coverage can be tailored to your specific needs. The financial strength and stability of CNA, one of the country’s largest insurers, stands behind you. Further, competitive rates are now available through Mitchell & Mitchell Insurance Agency, who have been serving the insurance needs of professionals for over forty years.

More than insurance. sm Your best defense. Contact Mitchell & Mitchell Insurance Agency, Inc. Serving professionals for over forty years.

1-800 247-1403 Lic. #0620650 All coverage not available in all states. CNA is a registered service mark and trademark of CNA Financial Corporation.

(800)(800) 2247-140347-1403 FaxFax (800)(800) 247-5624247-5624 Lic.Lic. #0620650#0620650 from the chair

By Jerry Abeles

n every profession, it is natural that the are organized and ready to have their cases skill levels and competence of those heard, I offer the following basic suggestions Iinvolved will vary to some degree. We to practitioners who find themselves in arbi- hope, though, that professions such as law tration, before me or anyone else. and medicine, which have high thresholds Arbitration Brief. A brief does not need to and rigorous education requirements for be lengthy (I prefer five pages or less), but it admission and continued practice, have prac- has to at least mention the pertinent facts of the COMPUTER FORENSICS titioners with nearly universal case, applicable law, and the dam- Certified Data Discovery strengths. Jerry Abeles is a ages sought. Any unusual issues This hope, of course, is rou- litigation partner in also should be briefed. Submis- ¥ Hidden/deleted file recovery tinely dashed. We see it in court, the Los Angeles of- sion of a brief one week before ¥ Docs, Graphics, E-mail as judges impose monetary sanc- fice of Friedemann the arbitration helps the arbitra- ¥ Internet use & Date Codes tions for discovery shortfalls or O’Brien Goldberg & tor prepare and forces the attor- Zarian LLP. He is the ¥ Expert Witness Testimony gamesmanship. We see it in deal- ney to learn about the case. chair of the 2003-04 ¥ Litigation Support ings with opposing counsel, who Exhibits. Is it too much to Los Angeles Lawyer ¥ Full Forensic Computer Lab lose documents or other evi- expect that an attorney knows dence that they hold for their Editorial Board. what exhibits he or she will intro- clients. How often do we ask our- duce at arbitration, that those 909-780-7892 selves, “How did that person exhibits will have been produced DataChasers.com ever pass the bar?” to the opposing side, and that the exhibits can As an arbitrator for the Los Angeles be authenticated? In a word, no. Superior Court, I unfortunately see far too Discovery. Too often attorneys show up many attorneys who do their clients a great at the arbitration without having deposed the Legislative Intent. disservice by simply not preparing their cases. opposing party or key witnesses and with- You probably seldom On the date a case is set for arbitration, the out having conducted basic discovery. Cross- attorneys should be as ready as they would be examination at the arbitration becomes a need it. on the first day of a trial. While preparation deposition, and the process grinds to a halt. should be a given, I routinely experience the Some attorneys do not take the arbitration But when the need does arise, polar opposite in the arbitrations that I han- process seriously since they have the option it can be crucial to winning dle, with some attorneys not having a basic to request de novo review by the trial court. your case. understanding of the issues in their cases or Thus they use the arbitration merely to learn Tracking down sources of information can be even knowing the names of their clients and about the other party’s case, rather than to a frustrating and time consuming process. witnesses. obtain an accurate evaluation by the arbitra- When legislative history is important to your Though I could present myriad examples tor of the probable outcome of the case at trial. case it can be very cost effective to engage our of unprepared attorneys, two will suffice given When one side is unprepared, the arbitra- professional expertise to research the history space limitations. In one case, a party did not tion award often is predetermined. When nei- and intent of the statutes or administrative speak English, to the apparent surprise of ther side is prepared, the result is a waste of enactments at issue in your case. her lawyer. The attorney, of course, had not everyone’s time. When you call, you can explain what made any arrangements to have an inter- There are hundreds of attorneys in Los you need, or tell me your situation and I can make suggestions on possible approaches. preter at the arbitration, and the arbitration Angeles whose service as volunteer arbitra- You can draw on my years of experience, so would have ended before it could even start tors helps ease the enormous burdens on you will know what is likely to be available had a staff member in my office not been the courts. The task, which is difficult enough on your topic. You will get a precise quote able to provide rough translations. In another given the time commitment, becomes nearly for the cost of the project. When you case, I agreed to conduct the arbitration at 8 impossible when the participants are not pre- authorize us to proceed, the report will be in A.M. due to an attorney’s conflict during reg- pared. For those who plan to handle their your office on the date you specify. ular business hours. It was not until after next arbitration by the seat of their pants, both parties’ attorneys and I arrived that the they should instead do their clients and the AN AYMOND J R attorney with the conflict advised that his arbitrator a favor: Pass the case on to some- LEGISLATIVE HISTORY & INTENT client had not cleared the earlier time and one else who can give the matter the attention Toll Free (888) 676-1947 would not attend. The lawyer had no con- it warrants. ■ Fax (530) 750-0190 ■ E-mail: [email protected]. ception of the inconvenience he caused to www.naj.net the others involved in the arbitration. State Bar #88703 At the risk of boring those who routinely

10 LOS ANGELES LAWYER / APRIL 2004 LEGALTECH WEST COAST presents the richest resource for legal professionals looking to run their firms more profitably. It is the definitive legal technology event west of the Mississippi - with expanded CLE education and an extensive technology exhibition presenting hundreds of the latest products and services.

Our faculty of leading legal practitioners present CLE accredited sessions, providing varied perspectives on a variety of the most current The Convergence topics. With over 8 conference tracks, you can customize a program to fit your unique of the brightest legal minds, information needs, and hands-on product demos the latest products enable you to test-drive a variety of vendor offerings. and cutting-edge technology. If there is one show on the West Coast you must attend this year, LegalTech is it. Nowhere else will you gain a better perspective on the impact technology has on your practice - and your bottom line! Discover the latest in: • Electronic Discovery • Knowledge Management • Case Management • Remote Access & Wireless Tech • Data Back-up and Security • Litigation Technology • Advanced CIO • and more!

Use these two days to: • Attend insightful conference tracks • Attain practical guidance • Network with your peers • Explore hundreds of products from diverse companies • Earn CLE Credit • Gain a clear overview of the state of the industry

Don’t Miss THIS COMPLIMENTARY SESSION

Keynote Speakers Day One 9am "Creating an Effective Digital Discovery Strategy"

Chris Paskach LegalTech - the longest-running legal technology National Partner-in-Charge conference and exposition in the world. Forensic Technology Services KPMG

Skip Walter CEO Attenex Corporation Sponsored by

Affiliated Sponsors Brought to you by American Lawyer Media, in association with

www.legaltechshow.com | 800 955 2719 barristers tips

By Alexander S. Gareeb

Practical Implications of HIPAA How the privacy of personal health information concerns lawyers and law ﬁrms

n 1996, the Health Insurance Portability and Accountability Act HIPAA also affects the discovery of medical information. Although (HIPAA) was enacted to establish uniform standards to prohibit most courts in California liberally allow discovery of medical records Idisclosure of protected health information (PHI), which is infor- on the grounds that the plaintiff who places his or her medical con- mation relating to the physical or mental health information of an indi- dition in issue waives the right to privacy, HIPAA may narrow the scope vidual.1 Privacy regulations established under HIPAA include 1) lim- of medical information to that which is consistent with HIPAA’s pol- its on the nonconsensual use and release of PHI, 2) rights of patients icy of “minimum necessary.” That is, disclosure of PHI must be lim- to access their medical records and to know who has accessed them, ited to the minimum that accomplishes the intended purpose. Thus, 3) restrictions on disclosure of PHI to the minimum need and intended only PHI expressly called for by the subpoena or request may be dis- purpose, and 4) criminal and civil sanctions for improper disclosure.2 closed or made available to the requesting party. HIPAA regulations The act mandates that “covered entities,” which are defined as specifically provide for the continued use of subpoenas to obtain healthcare providers, health plans, employers, and healthcare clear- medical records with a court order.3 However, a subpoena does not inghouses, comply with its privacy measures. It is important to note need to be accompanied by a court order if the medical provider that pharmaceutical, biotechnology, and medical device companies are receives appropriate documentation concerning assurances of con- not covered entities under the act. Although law firms are not directly fidentiality from the party seeking the information. That is, the covered entities, they are obliged to implement safeguards for the pro- requesting party must ensure that 1) a good faith effort was made to tection of PHI that pertains to or is received by a client. Law firms provide written notice to the individual, 2) the notice included suffi- should document their privacy protection measures in a Business cient information about the proceeding in which the PHI is requested Associate Agreement with any covered entity. This agreement effec- to permit the individual to raise an objection, and 3) a written state- tively imputes the duties of a covered entity regarding the protection ment that either the patient did not object in a timely manner or that of PHI to the law firm. Lawyers and law firms that are not compliant any objection was resolved in favor of disclosure.4 with the act may be subject to liability for penalties and fines for It should be noted that the HIPAA requirements are consistent with improper disclosure of PHI—not to mention potential loss of clients, California civil practice. Specifically, in California, the requesting detrimental consequences to reputation, and potential litigation. party must serve a “Notice to Consumer” with a subpoena, allowing To gain compliance, law firms must create and execute policies and individuals (or their counsel) 10 days to object to the production of procedures that address 1) access to, and release of, medical records, certain information.5 Therefore, although HIPAA has added a require- 2) a mechanism for privacy complaints, 3) internal sanctions for ment to be met prior to disclosure of medical records, this added improper disclosure, 4) access, restrictions, and security pertaining requirement does not affect California legal practice, since it is to computers, 5) accounting of disclosures and recording unauthorized already embodied in the California code. disclosures, 6) fax precautions, 7) telephone responses, 8) trans- The HIPAA privacy rule is compre- portation of charts and data, and 9) disposal of medical records. hensive, but it is important to remem- Additionally, law firms should train their lawyers and staff about ber that its hundreds of pages of regula- the mandates of HIPAA and the confidentiality of PHI. Administrators, tions may be distilled into a one-sentence professional staff, nonprofessional staff, and senior management will theme: Do not use or disclose personal require different approaches and levels of information. health information without a valid busi- Reasonable precautions include, for example, encryption of elec- ness purpose. ■ tronic mail containing PHI. When faxing PHI, personnel should call ahead to make sure someone will be at the receiving end, and some- 1 The author would like to acknowledge the con- one must remain at the fax machine until the transmission is com- tributions of David M. Humiston and Kenneth pleted. There should be no discussion of healthcare cases by name N. Rashbaum, partners in the Los Angeles and New York offices, respectively, of Sedgwick, outside the office without a valid business purpose. At the conclusion Detert, Moran & Arnold LLP. See 42 U.S.C.A. Alexander S. Gareeb of a case, drafts of reports to clients that include PHI should be §§1320d-2(a)(1). shredded. Access to files must be controlled to ensure that PHI is kept 2 42 U.S.C.A. §§1320d-1(a), 1320d(6), 1320d- is an associate with confidential. For example, access to file room shelves should be 2(a)(2). Sedgwick, Detert, restricted, distribution of files must be limited, and there should be 3 45 C.F.R. §164.502 (b)(1); 45 C.F.R. §164.512. Moran & Arnold LLP. 4 restrictions on keeping multiple files in offices. 45 C.F.R. §164.512(e). 5 CODE CIV. PROC. §1985 (b)-(e).

12 LOS ANGELES LAWYER / APRIL 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 practice tips

By Joel M. Grossman

Clarifying the Confidentiality of Mediation Evidence

Guidance is needed statements they make during the fidentiality is to promote a frank (a) No evidence of any- mediation, or documents that and candid exchange of views, thing said or any admis- on the relationship they prepare for the mediation, both between the parties and sion made for the purpose are strictly confidential and can- between a party and the media- of, in the course of, or pur- between Evidence not be used in future litigation. tor.1 If the parties worry that a suant to, a mediation or a However, a thorough review of statement made or a document mediation consultation is Code Sections 1119 these code sections reveals that introduced at the mediation could admissible or subject to this assurance may be somewhat be discoverable or admissible in discovery, and disclosure and 1120 less than ironclad. Moreover, the a later proceeding, the goal of of the evidence shall not case law in this area has been candor and frankness will be lost.2 be compelled, in any arbi- marked by confusion, with the When a party seeks to invade tration, administrative ediation, virtually nonex- result that the California Supreme mediation confidentiality, a court adjudication, civil action, istent only 25 years ago, Court has decided to grant re- must consider whether its deci- or other noncriminal pro- Mhas become an accepted view in Rojas v. Superior Court. sions in this area will encourage ceeding in which, pur- part of the legal process. Courts This case, which most likely will or thwart the clear policy under- suant to law, testimony can regularly send cases to manda- be decided this year, hopefully lying mediation confidentiality in be compelled to be given. tory mediation, and disputing par- will provide a complete explana- California. Section 1119(b) extends the ties routinely agree to voluntary tion of the Evidence Code provi- Section 1119 states, in rele- same rule to a writing that is “pre- mediation. Compared to litiga- sions on mediation confidentiality, vant part: pared for the purpose of, in the tion, mediation offers many ben- with a specific focus on the inter- efits to parties, the most impor- play between Evidence Code tant of which is the ability to Sections 1119 and 1120, and thus control their own destiny. When give guidance to lawyers and a case is submitted to a judge, a their clients on what can be said jury, or an arbitrator, the parties and produced during mediation cannot control the outcome. In a without risk that the same evi- mediation, however, no deal can dence will reemerge to haunt the be reached unless all parties clients in future litigation. agree. The prospect of deter- Effective January 1998, vari- mining their own fate and limit- ous laws pertaining to mediation ing attorney’s fees and costs has that had been spread across attracted litigants to mediation in seven different California codes droves. Still, medi- were amended and ation is a relatively Joel M. Grossman is brought together new aspect of legal an attorney who is a in one place—Evi- practice, and many full-time mediator dence Code Sec- of the rules of med- and arbitrator tions 1115 to 1128. iation are not yet affiliated with ADR These code sec- certain. This is es- Services, Inc., in Los tions expressly pecially true in the Angeles. address the issue important area of of mediation confi- mediation confidentiality. In 2001, dentiality. the California Supreme Court Parties to a mediation usually made it clear that there is an are asked to sign a confidential- important policy behind these ity agreement. Typically, the Evidence Code provisions. Citing agreement cites sections of the both legislative history and a law California Evidence Code that review article, the court ex-

RICHARD EWING seemingly assure the parties that plained that the purpose of con-

14 LOS ANGELES LAWYER / APRIL 2004

APRIL 2004 MASTER 3/12/04 11:41 AM Page 16

course of, or pursuant to, a mediation or a with great caution, if at all. the case represented the “intersection mediation consultation.” Finally, Section In the first, Rinaker v. Superior Court,4 between court-ordered mediation, the confi- 1119(c) broadly states that “[a]ll communi- the state court of appeal created a limited dentiality of which is mandated by law…and cations, negotiations, or settlement discus- exception to Section 703.5’s ban on mediator the power of a court to control proceedings sions by and between participants in the testimony. The case involved a civil lawsuit before it by imposing sanctions on a party or course of a mediation or a mediation consul- and juvenile delinquency proceedings. At the the party’s attorney for statements or con- tation shall remain confidential.” The last mediation in the civil case, the complaining duct during mediation.”8 The key issue in word of the section is not defined. witness told the mediator that he did not actu- the case was whether the language of Evidence Code Section 703.5 provides ally see the accused commit the alleged acts. Evidence Code Section 1121 prohibiting a that judges, arbitrators, and mediators are The mediator was subpoenaed to testify about court from considering any report or find- not competent to testify in any subsequent this key fact at the juvenile delinquency hearing by the mediator applied to the sanctions civil proceeding as to “any statement, con- ing. The Rinaker court held that even though report. duct, decision, or ruling, occurring at or in a juvenile delinquency hearing is civil and The supreme court provided the clearest conjunction with the prior proceeding.” therefore a “noncriminal proceeding” as that possible answer to this question: Mediation Exceptions are provided only for statements term is used in Section 1119, nevertheless confidentiality is absolute unless the Evidence or conduct related to crimes, civil or criminal constitutional due process rights required Code provides an exception. Thus, the trial contempt, conduct that could give rise to that the accused juvenile be permitted to judge should not have considered the medi- lawyer disciplinary actions, or disqualifica- impeach his accusers. The court noted that ator’s report. The supreme court recognized tion of the neutral. In other words, in most mediation confidentiality is an important that with a court-ordered mediation, public cases, statements made by parties at a medi- value, but it must yield to “the constitutional policy dictates that all parties participate in ation are inadmissible, and mediators them- right to effective impeachment.”5 The Calif- good faith and may support sanctions against selves are not permitted to testify about what ornia Supreme Court in Foxgate Homeowners parties who do not. Nevertheless, the court transpired during the mediation. Association, Inc. v. Bramalea California, Inc. stated that “the Legislature has weighed and Section 1121 prohibits the mediator, or agreed with the court of appeal, noting that balanced the policy that promotes effective anyone else, from submitting to a court or Rinaker “is consistent with our past recogni- mediation by requiring confidentiality against adjudicative body any “report, assessment, tion and that of the United States Supreme a policy that might better encourage good evaluation, recommendation, or finding of Court that due process entitles juveniles to faith participation in the process.”9 any kind by the mediator.” The sole exception some of the basic constitutional rights Two years after Foxgate, the court of is a court-mandated report that states only accorded adults, including the right to con- appeal decided Eisendrath v. Superior Court,10 whether an agreement was reached at the frontation and cross-examination.”6 Thus the in which a party sought the testimony of a mediation. mediator in Rinaker was properly ordered to mediator. In Eisendrath, a couple reached a The Evidence Code gives a broad promise testify. mediated divorce settlement. The parties’ of confidentiality in Sections 1119 and 1121 In the second, Olam v. Congress Mortgage written settlement agreement specified that and underscores that promise with Section Company,7 a mediator’s testimony was com- spousal support would be paid for seven 703.5, but a good portion of that promise pelled in a federal case decided by a magis- years, even if the former wife remarried appears to be taken away in Section 1120. trate judge. The issue in Olam was whether before the seven years elapsed, and that the Subsection (a) of that section provides that: the party who defaulted on a loan had been former wife, in her sole discretion, could Evidence otherwise admissible or sub- competent to enter into a settlement that agree that spousal support should be less- ject to discovery outside of a mediation another party later tried to enforce. The plain- ened or stopped altogether after she remar- or a mediation consultation shall not be tiff had waived confidentiality, and the defen- ried. When the former wife remarried within or become inadmissible or protected dant had agreed to a limited waiver of confi- the seven-year period, the former husband from disclosure solely by reason of its dentiality. The magistrate judge, following contended that the settlement agreement had introduction or use in a mediation or a Rinaker, sought to balance the parties’ inter- been drafted incorrectly. According to the mediation consultation. est in having the mediator testify on the com- former husband, the settlement agreement Thus a party cannot invoke Section 1119 petency issue versus the state’s interest in actually provided that in the event of his for- as a tactic to protect statements or documents maintaining confidentiality, as expressed in mer wife’s remarriage, it was in the former that would otherwise be fully discoverable the Evidence Code. Ultimately the judge husband’s sole discretion to determine in the course of litigation. This is fair and allowed the mediator to testify. The judge whether spousal support should continue at reasonable. But is the language of Section deemed the mediator’s testimony to be cru- the same level as it began. He contended that 1120 so broad that it exposes to future pro- cial to the case’s being decided correctly. this was agreed to in conversations between duction all or even most of what is protected The trial judge in Foxgate faced different the parties outside the presence of the medi- by Section 1119? This question apparently circumstances when deciding whether to ator and that the written agreement incor- will be answered this year by the California accept a mediator’s report, contrary to Evi- rectly reversed the pronoun in the key pro- Supreme Court in Rojas.3 dence Code Section 1121. In this complicated vision regarding sole discretion from his to case, the trial judge had appointed a retired her. Based on this contention, he filed a Case Law before Rojas judge to serve as both special master and motion to correct the spousal support agree- In two cases decided before Rojas, a state mediator. When one of the parties failed to ment to clarify that spousal support would court of appeal and a federal district court attend hearings and bring appropriate par- continue only if he so chose. held that a mediator could be required to tes- ties to the mediation, the other party moved In response, the former wife contended tify. Both cases have been criticized in sub- for sanctions. The mediator then wrote a that the document accurately reflected the sequent decisions and limited to their specific report recommending sanctions, which was parties’ agreement, and to support her posi- and unusual facts. While the decisions have considered by the trial court. tion she sought to depose the mediator. She not been overruled, they should be relied on The supreme court in Foxgate noted that contended that mediation confidentiality

16 LOS ANGELES LAWYER / APRIL 2004 under the Evidence Code is not absolute and instead should be viewed as a privilege, sim- Professional ilar to the attorney-client privilege or other privileges set forth in Evidence Code Sections 910 et seq. The former wife stated that she Arbitrator was willing to “waive” this “privilege” and, as a result of seeking to correct the spousal and Mediator support agreement that had been reached by mediation, the former husband also had impliedly “waived” the mediation “privilege.” Steven Richard Sauer, Esq. Thus the statements made during the mediation, and the testimony of the mediator, were admissible. The former husband responded by requesting a protective order to bar the “He is truly a master mediator’s deposition or any other evidence from the mediation, except for the conversa- in his art.” tions outside the mediator’s presence between himself and his former wife that were the basis of his motion to correct the support Settled over 5,000 Federal order. The trial judge denied the former hus- and State Litigated Cases band’s motion for a protective order and declared that an in camera hearing would be held on the issue of whether or not the medi- 323.933.6833 ator could testify. The court of appeal granted the former Fax 323.933.3184 husband’s petition for writ of mandate and reversed the trial judge’s decision. The court E-mail [email protected] soundly rejected the former wife’s theory that the mediation confidentiality provisions 4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010 are analogous to the lawyer-client privilege and can be impliedly waived. The waiver provisions in Sections 910 et seq. “by their plain language, are limited to the particular privileges enumerated therein.”11 The court also rejected the former husband’s view that conversations between him and his former wife, which took place outside the presence of the mediator, were admissible. Reviewing Sections 1119 and 1121 of the Evidence Code, the court held that these provisions “render confidential any communications between mediation participants before the end of the mediation that occur outside the mediator’s presence, provided that these communications are materially related to the mediation.”12 The court specifically noted the broad language of Section 1119, which refers to statements made not only “in the course of” but also “pursuant to” a mediation. Thus, so long as the mediation has not ended, statements made between the parties that are related to the subject matter of the mediation will be deemed confidential. The court’s final ruling concerned the former wife’s request to depose the mediator. The trial court had relied on both Rinaker and Olam in determining that the mediator might be compelled to testify notwithstanding the provisions of Section 703.5. The court of appeal held that the mediator would, in fact, be incompetent to testify under Section 703.5. The court had little trouble distinguishing Rinaker and Olam because, unlike Rinaker,

LOS ANGELES LAWYER / APRIL 2004 17 the Eisendrath case did not raise any constitutional due process issues, and unlike Olam, there were no executed waivers of the confidentiality rights. The Eisendrath court further noted that “given the forceful rejection of nonstatutory exceptions to mediation confidentiality requirements in Foxgate, we conclude that Rinaker and Olam should be closely limited to their facts.”13 Thus, absent rare circumstances, a mediator will not be deemed competent to testify regarding any aspect of the mediation. These cases all seek to interpret the breadth of the confidentiality provisions of Sections 1119 and 1121. But what about the Evidence Code’s counterweight to these sections, Section 1120, which declares that evi- MAKE WRONGFUL TERMINATION dence that is otherwise admissible or subject to discovery cannot be made inadmissible A PROFIT CENTER! simply by being introduced at a mediation? Does Section 1120 take away the protections Danz & Gerber will handle your referrals. that the legislature provided in Section 1119? National origin, age, sex, race, retaliation, federal false Unlike Section 1119, Section 1120 had not claims on behalf of employees. been judicially interpreted prior to Rojas. This left the trial and appellate courts in Rojas with Please call to discuss your referral with senior partner Steve Danz. tough decisions to make without precedential Statewide, main office in Sherman Oaks. (818) 783-7300. guidance.

All fees paid in accordance with Rules of Professional Responsibility. The Rojas Dilemma A review of the facts of Rojas, especially the procedural context of the case, is crucial for an understanding of what the supreme court’s decision may mean for other mediated cases. Rojas is the second of two related cases involving a dispute over building defects. In Invitation for Public Comment the first action, the owners of an apartment on the Reappointment of Federal Public Defender complex sued the builders of the complex Ms. Maria Stratton regarding construction defects that caused the intrusion of water and led to toxic mold. The case was sent to mediation. At the medi- The United States Court of Appeals for the Ninth Circuit is ation, the plaintiff owners turned over to the conducting an evaluation of the performance of the Federal Public defendant builders a full report of their Defender (FPD) for the Central District of California, Ms. Maria experts’ investigation of the building defects, Stratton The Court conducts this evaluation in order to determine if including test data and hundreds of pho- the incumbent FPD should be appointed to an additional four year tographs. Eventually, the lawsuit between the term without a competitive recruitment. Any persons having owners and builders was settled. In Rojas, the tenants of the apartment knowledge of the performance of Ms. Stratton and/or her respective complex brought suit against the owners and staff are invited to submit comments. Anonymous responses will not the builders. The tenants claimed that the be accepted. However, the identity of all respondents will be kept building defects, including the resultant mold, confidential except to those with a need to know. had caused them health problems. The plain- All comments must be received no later than Friday, May 7, 2004 in tiff tenants propounded discovery requests to order to be considered. Comments may be submitted via mail or fax to obtain the expert reports, the test data, and the following address: the photographs that had been prepared by the owners and their experts for the media- Office of the Circuit Executive tion and that were submitted to the builders ATTN: FPD Evaluation, Central District of California at the mediation in the first case. When the U.S. Courts for the Ninth Circuit defendants refused to produce the materials, P.O. Box 193939 claiming that they were protected from doing San Francisco, CA 94119-3939 so under Evidence Code Section 1119, the plaintiffs moved to compel production. The Fax: (415) 556-6179 trial court denied the motion, holding that Section 1119 did indeed bar production of

18 LOS ANGELES LAWYER / APRIL 2004 the sought-after materials. The plaintiffs next filed a more limited motion seeking production only of “raw evidence,” such as the photographs, and not the reports or impres- sions of the experts. The trial court also denied this motion to compel, although the court expressed concern that Section 1119 could be used by a clever litigant to make otherwise discoverable evidence “disappear” by producing the evidence at a mediation. The plaintiffs filed a petition for a writ of mandate, which was granted by the court of appeal. The court of appeal reversed the trial court decision and issued an opinion order- ing production of the “raw evidence,” such as the test data and photographs. The court emphasized that the confidentiality granted by Section 1119 must be read in tandem with Section 1120, which states in no uncertain terms that evidence that is otherwise admissible or subject to discovery outside the context of a mediation “shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation.” Thus, the court of appeal clearly shared the concern of the trial judge that a litigant could bury discoverable evidence merely by producing it at a mediation—a result that, according to the court, is exactly what the legislature meant to prevent when it balanced Section 1119 with Section 1120. The court explained that the mediation con- 36TH ANNUAL FAMILY LAW SYMPOSIUM fidentiality established by the Evidence Code is meant to protect the negotiations and com- Presented by the Family Law Section and the Los Angeles Superior Court munications that take place during a mediation—not what the court referred to as “pure MAY 15, 2004 AT THE HILTON UNIVERSAL CITY evidence.”14 555 UNIVERSAL HOLLYWOOD DRIVE, UNIVERSAL CITY In reaching its conclusion, the Rojas court drew an analogy to the attorney work product doctrine. It held that to the extent raw evi- PANELISTS WILL DISCUSS: dence can be separated from the analysis of Paternity and Related Actions • Prosecution/Defense of Contempts the attorney or an expert, it is discoverable. Attorney Fees • Reimbursements Just as parties cannot use the attorney-client Recent Developments—Presented by Family Law Judicial Officers privilege to bury potentially damaging documents merely by sending the documents to their attorneys, they also cannot invoke the Registration: 8:15 a.m. - 8:45 a.m. protection of Section 1119 to shield raw evi- Meal/Reception: 8:15 a.m. - continental breakfast dence during litigation simply by providing it Program: 8:45 a.m. - 4:30 p.m. (includes lunch) to the opposing side at a mediation.15 The court was influenced by the fact that the Rojas PRICING: $135 CLE+Plus Members; $75 non-profit attys/court research attys/first year admittees/non-attorney support staff/law students; $235 family law section members/ plaintiffs had no alternative means of obtain- barristers/retired judges; $255 other LACBA members; $260 affiliate bar members; $285 ing evidence of construction defects that was all others; $295 at the door obviously relevant to their case.16 The California Supreme Court has a Admission price includes reference book, CD-Rom, continental breakfast, luncheon, and unique opportunity to clarify the scope of breaks. mediation confidentiality and to let parties REGISTRATION CODE: 008500 (5.75 CLE hrs. including 1 hr. ethics); approved for to mediations know the extent to which Legal Specialization Credit in Family Law. Section 1120 limits Section 1119. Many of those who are regularly involved with alter- Registration by phone with Visa, MasterCard or American Express: Call (213) 896-6560 Monday-Friday 9:00 a.m.-4:00 p.m. For questions about programs or program native dispute resolution are concerned about registration, send e-mail to our Member Service Department at [email protected]. The Los Rojas. Some are worried that if the supreme Angeles County Bar Association is a State Bar of California MCLE approved provider. court affirms the court of appeal’s decision,

LOS ANGELES LAWYER / APRIL 2004 19 APRIL 2004 MASTER 3/12/04 11:42 AM Page 20

the ruling will open a huge hole in the wall of uments and photographs by producing them In sum, while the supreme court’s ruling protection provided by mediation confiden- at a mediation with the Rojas plaintiffs. In in the Rojas case is and should be eagerly tiality and discourage parties from engaging fact, the Rojas court was careful to note that awaited by all who seek clarity regarding the in the kind of candid exchange that helps obtaining evidence from the prior mediation law of mediation confidentiality, the decision, facilitate settlement. Others take the opposite was the plaintiffs’ only way to obtain the evi- whichever way it goes, is not likely to stop the view, warning that unless the decision is dence; in a typical case, such evidence would mediation juggernaut. The benefits of medi- affirmed, the process of mediation will be produced through the normal discovery ation are so significant that it will continue to become a tool for hiding unfavorable evi- process. thrive as the best alternative to costly and dence, and no one will voluntarily participate How should Rojas be decided? Given the uncertain litigation. in mediation. Thus, each side in the debate supreme court’s strongly stated view in views the outcome as potentially destroying Foxgate that there should be no exceptions to 1 Foxgate Homeowners Ass’n, Inc. v. Bramalea Cal., or at least severely limiting the practice of confidentiality other than those in the Evi- Inc., 26 Cal. 4th 1, 9 (2001). mediation as it is now known. dence Code, the court should take the oppor- 2 Id. at 9. 3 Rojas v. Superior Court, 126 Cal. Rptr. 97 (2002), Both sides in this debate, however, over- tunity to clarify that Section 1120 applies only review granted, No. S111585 (Cal. Sup. Ct. Jan. 15, state the potential fallout from the supreme to documents or statements that would have 2003). court’s decision. First, there can be no ques- existed if no mediation had taken place. Thus, 4 Rinaker v. Superior Court, 62 Cal. App. 4th 155 (1998). tion that mediation is here to stay. It has if evidence such as the photographs or test 5 Id. at 167. proven itself as an extremely effective process results at issue in Rojas would have been cre- 6 Foxgate, 26 Cal. 4th at 10. 7 that provides litigants with an excellent alter- ated in the ordinary course of litigation, such Olam v. Congress Mortgage Co., 68 F. Supp. 1110 (N.D. Cal. 1999). native to judicial adjudication, and it will not evidence should be discoverable under Sec- 8 Foxgate, 26 Cal. 4th at 2. be devastated by an affirmance or reversal of tion 1120, and it cannot be immunized merely 9 Id. at 11. this one case. by being produced at a mediation. But if the 10 Eisendrath v. Superior Court, 109 Cal. App. 4th 351 Second, the unusual procedural context of evidence was truly created solely for use in a (2003). 11 Rojas makes the upcoming supreme court mediation and would not have come into Id. at 363. 12 Id. at 364 (emphasis in original). decision probably inapplicable in most cases. existence but for the mediation, Section 1119 13 Id. at 361. The documents at issue were produced at a should control and the evidence should 14 Rojas v. Superior Court, 126 Cal. Rptr. 97, 106 (2002), mediation in the first lawsuit between the remain confidential. The issue of whether review granted, No. S111585 (Cal. Sup. Ct. Jan. 15, builders and the owners. There is no sug- the evidence exists solely because of the 2003). 15 gestion in Rojas that the defendants in the sec- mediation is a question of fact to be deter- Id., 126 Cal. Rptr. at 108. 16 Id. at 110 ond lawsuit could have immunized the doc- mined by the trial court. Computer & Electronic Discovery Experts

• Is discovery of e-mail content critical to your case? • Do you need to know what data was copied or deleted by employees? • Is there missing or deleted data that, upon discovery, will help your case? Transforming Technology into Peace of Mind • Do you need an articulate expert who can deal with computers, systems, and electronic forensic matters?

INSYNC Consulting Group, Inc., for over 20 years, proven experts in rapid Electronic Discovery and Computer Forensics.

Since 1984, we have helped the White House, the U.S. Department of Justice, major national law ﬁrms and corporations, as well as small- and middle-market ﬁrms with their computer, discovery, and electronic forensic matters.

In both Federal and State courts, we have been certiﬁed as Experts, designated as Special Masters, and appointed as Referees.

[email protected] 1.888.698.8999

20 LOS ANGELES LAWYER / APRIL 2004 practice tips

By Michael H. Strub Jr.

Drafting Protective Orders for Confidentiality of Documents

New Rules of Court rules6—before sealing a record, kept out of the public record. ments he or she has, while an in- the trial court must make spe- The Code of Civil Procedure stitutional defendant may have challenge counsel cific findings that there is an over- authorizes courts to enter a pro- voluminous documents in its pos- riding interest in sealing the tective order, providing that “a session and serious privacy con- to properly protect record and that there is a sub- trade secret or other confidential cerns about the information in stantial probability that the dis- research, development, or com- those records. In these situations, confidential closing party will be prejudiced if mercial information not be dis- the party that is receiving most the sealing order is not entered.7 closed, or be disclosed only to of the confidential information will disclosures The newly adopted Rules of specified persons or only in a seek a less comprehensive, less Court set out a procedure that specified way.”9 The statutory burdensome agreement, while the parties must follow before sub- guidelines for determining party that is designating most of istorically, trial courts mitting records under seal.8 The whether a protective order its discovered material as confi- have routinely entered procedure requires that the party should issue in a criminal or civil dential will seek a more compre- Hprotective orders, based seeking to file documents under action are found in Evidence hensive agreement with more on stipulated confidentiality seal also file, simultaneously with Code Sections 1060 and 1061.10 onerous restrictions on disclosure. agreements between the parties, its substantive motion, a noticed In most cases, a court’s pro- The receiving party will, how- that require that documents the motion requesting that the record tective order relating to confi- ever, recognize that acceding to parties designate as confidential be sealed. This procedure as- dential information is based on the designating party’s demand be filed under seal.1 The practice sumes that the party submitting an agreement that has been for a more comprehensive pro- of entering these stipulated pro- the record is the party that des- negotiated and executed by the tective order can be in the receiv- tective orders has served the ignated it as confidential. In many parties.11 Stipulated protective ing party’s interest. In the interests of disclosing parties cases, the party receiving the con- orders set forth the framework absence of a protective order, the (who want to preserve the confi- fidential record may have little within which the parties—and, designating party can invoke the dentiality of their information) incentive to file a sealing motion depending on the terms of the trade secret privilege and refuse and the recipients (who want to or argue forcefully that the record agreement, nonparties—may dis- to produce documents, forcing review and use the information be sealed. close confidential and proprietary the receiving party to file a in discovery but generally have The new rules may surprise information during the litigation. motion to compel their produc- no interest in disseminating it to the unwary litigant who produces The stipulated protective order tion.13 But if a protective order the public). In NBC Subsidiary confidential information with also determines the process by has been entered, the designating (KNBC-TV), Inc. v. Superior an expectation that a stipulated which confidential and propri- party’s leverage in refusing to Court,2 however, the California protective order will ensure its etary information can be filed disclose relevant information may Supreme Court held that this secrecy. The perspectives of with the court. be diminished.14 Moreover, while practice was not consistent with parties and those of courts on In the past, courts encouraged the receiving party will have a California’s open whether informa- these agreements to the extent strong interest in ensuring that it court statute3 or Michael H. Strub Jr. is tion is truly secret that they balanced the compet- is able to disclose relevant infor- the First Amend- of counsel at Irell & are often vastly dif- ing interests of open discovery mation to percipient and expert ment.4 Manella LLP in ferent, and this fact and legitimate privacy. These witnesses, the receiving party’s Following this Century City. should guide par- agreements also increase the effi- interest in the portions of the pro- decision, the Judi- ties in deciding ciency of pretrial discovery.12 tective order governing the filing cial Council adopt- whether to chal- Frequently, however, there is a of documents under seal with the ed Rules of Court— lenge discovery disparity between the discovery court is generally limited to ensur- notably, Rules 12.5, demands for confi- burdens of the parties, and, as a ing that the administrative bur- 243.1, and 243.2—that prohibit dential information. Parties may result, a disparity between their dens imposed on it are minimal. courts from simply endorsing the need to be more aggressive in interests in preserving the parties’ agreement to keep infor- asserting the trade secret privi- secrecy of disclosed information. A New Balance of mation out of the public record.5 lege to avoid production rather An individual plaintiff may have Interests In proceedings other than dis- than rely on the existence of a few if any documents to produce Several appellate decisions covery disputes—which are not stipulated protective order to and little interest in preserving and recently enacted Rules of within the ambit of the new ensure that the information is the confidentiality of the docu- Court, however, have imposed

LOS ANGELES LAWYER / APRIL 2004 21 significant restrictions on the ability of parties and procedures for [trial] courts to use when or proprietary information now face two sig- to agree contractually on whether documents a request is made to seal a record.”16 And for nificant questions. First, should the new Rules submitted to the court will remain under seal. “reviewing courts, the Judicial Council pro- of Court be reflected in the stipulated pro- In NBC Subsidiary (KNBC-TV),15 the mulgated rule 12.5.”17 “As in the case of rules tective order, and, if so, how? Second, how can California Supreme Court established guide- 243.1 and 243.2, rule 12.5 was adopted in a designating party be certain that informa- lines for whether trial court records and pro- response to the NBC Subsidiary decision.”18 tion it produces with an expectation of confi- ceedings can be closed to the public. Following Applying these rules, two recent decisions dentiality will not become part of the public the decision in NBC Subsidiary (KNBC-TV), by the Second District have denied a party’s record if a court should decide later that seal- the Judicial Council adopted California Rules request to seal documents.19 ing of the information is not appropriate? of Court 243.1 and 243.2 to “provide a standard Litigants in cases involving confidential NBC Subsidiary involved a dispute between Sondra Locke and Clint Eastwood.20 After the jury was sworn, the trial court, con- An Order to Protect Confidential Material cerned about the effect of press coverage on the jury’s deliberation, on its own motion The California Rules of Court do not clearly address the problem posed when a party relies issued an order closing all proceedings to on confidential information but is not the party that designated it as confidential. The following the press and public that were held outside language in a protective order may resolve this issue. In this example, the information to be the jury’s presence.21 News organizations covered by the protective order is labeled Confidential Material. The party that produced the petitioned for a writ of mandate, which the information is called the Designating Party, and the party that received the information is the Receiving Party. court granted. Citing Section 124 of the Code 1. Permission is hereby granted by the Court to file under seal documents marked of Civil Procedure, which provides that “the “Confidential” in connection with discovery motions or proceedings (as defined in sittings of every court shall be public,” and California Rule of Court (“CRC”) 243.1(a)(2)). A Party seeking to file such documents relying on First Amendment jurisprudence under such circumstances shall file such documents in sealed envelopes or other appro- from the U.S. Supreme Court, the California priately sealed containers on which shall appear a legend which provides substantially Supreme Court held that “two things” must as follows: occur before a courtroom proceeding in FILED UNDER SEAL—The enclosed materials are subject to a Protective Order of the California is closed: 1) “[A] trial court must Superior Court of the State of California for the County of ______. This envelope provide notice to the public of the contem- may not be opened without court order by any person other than this Court, Court per- plated closure,” and 2) the court must make sonnel, or counsel of record of the party filing these materials. 2. A Party seeking to lodge or file any document that contains Confidential Material specific factual findings that closure is war- with the Court in connection with a motion or other proceeding governed by CRC 243.1 ranted by applying four criteria: and 243.2 shall either: (a) file a motion to seal the record in accordance with CRC 243.2; (i) [T]here exists an overriding inter- or (b) comply with the provisions of Paragraph 3. Any motion filed pursuant to sub- est supporting closure and/or sealing; paragraph (a) hereof must be made in good faith and must present facts and argument (ii) there is a substantial probability in support of the sealing. Otherwise, no Confidential Material may be used in such a that the interest will be prejudiced way (including lodging or filing) that would permit it to become part of the public record absent closure and/or sealing; (iii) the without the Designating Party having the opportunity to move to seal the Confidential proposed closure and/or sealing is Material as provided in Paragraph 3. narrowly tailored to serve the over- 3. Except as otherwise provided in paragraph 2, no Confidential Material shall be riding interest; and (iv) there is no less lodged or filed with the Court except as provided herein. a. To facilitate compliance with this Order by the Clerk’s office, and provided that the restrictive means of achieving the over- Designating Party shall have timely filed a motion as provided in subparagraph (c) below, riding interest.22 Confidential Material filed with the Court shall be contained in a sealed envelope bear- Those four criteria now appear, with dif- ing the confidentiality legend on its front face, shall state thereon that it is filed under ferent wording, in Rule 243.1 of the Rules of the terms of this Order, and shall comply with all other applicable requirements of Court. Trial courts have broad discretion in CRC 243.2. applying the criteria.23 b. The Receiving Party shall provide five (5) court days advance written notice to the Rule 243.2 sets out the procedures to be Designating Party, by hand delivery or facsimile, of its intent to file Confidential Material followed for filing a record under seal. produced by the Designating Party. If the Confidential Material is contained in a doc- Specifically, the “party requesting that a ument, the notice shall include the production number of the document. If the record be filed under seal must file a noticed Confidential Material is contained in a written discovery response, the notice shall identify the response. If the Confidential material is contained in deposition testimony, the motion for an order sealing the record” at notice shall identify the testimony by page and line number. In all other cases, the notice the same time that the record is presented to must identify and describe the Confidential Material to be filed with sufficient partic- the court.24 “If necessary to prevent disclo- ularity such that the Designating Party will be fully able to present a case to the Court sure, the motion, any opposition, and any for the express findings enumerated in CRC 243.1(d). supporting documents must be filed in a pub- c. The Designating Party may, within four (4) court days of such written notice, file a lic redacted version and lodged in a complete noticed motion for an order sealing the Confidential Records. version conditionally under seal.”25 d. The Receiving Party shall cooperate in good faith with the Designating Party in facil- Practitioners should note that Rules 243.1 itating the Designating Party’s attempt to obtain a court order sealing the Confidential and 243.2 “do not apply to discovery motions Records, including lodging the Confidential Material conditionally under seal as described and records filed or lodged in connection in CRC 243.2. The foregoing notwithstanding, nothing contained herein shall prevent 26 the Receiving Party from objecting to the designation of such material as confidential. with discovery motions or proceedings.” 4. In the event that the Court denies a motion for an order sealing the allegedly This is a very important exception, as it means Confidential Material, the Party seeking to file the Confidential Records may replace the that most pretrial disputes will not be cov- “Conditionally Under Seal” copy of the Confidential Records with a copy not under seal, ered by these new obligations. and such material shall no longer be deemed to be Confidential.—M.H.S. Jr. If a party is seeking to rely on its own

22 LOS ANGELES LAWYER / APRIL 2004 APRIL 2004 MASTER 3/12/04 11:42 AM Page 23

confidential information in support of a the party that designated the information as afoul of client expectations. Rule 243.2 places nondiscovery motion, the obligations of Rule confidential and therefore does not have the certain burdens on a party seeking to file 243.2 and the procedures to be followed are option of withdrawing the confidential des- confidential information with the court. The clear. The movant must file the confidential ignation for the material on which it intends “party requesting that a record be filed under information on which it intends to rely con- to rely? seal must file a noticed motion for an order ditionally under seal and file with its papers These questions should be addressed in sealing the record,” accompanied by a “mem- a noticed motion requesting that the records the stipulated protective order itself. Under orandum of points and authorities and a dec- remain under seal.27 If the court denies the NBC Subsidiary and Rule 243.1, the nature of laration containing facts sufficient to justify the motion to place the documents under seal, the the information that has been designated sealing.”36 The party must lodge the record to designating party then can elect either to confidential will drive the court’s decision as be filed under seal “when the motion is include the documents in the public record or to whether the documents are to remain made.”37 “If the court denies the motion to to withdraw them from the public record and under seal. If the information qualifies for seal, the clerk must return the lodged record not to rely on them in connection with its protection under the four criteria of Rule to the submitting party and must not place it motion. 243.1 but is of marginal relevance, the court in the case file.”38 Additional provisions of This was the factual situation of two recent should order the movant to remove the infor- Rule 243.2 set forth the procedure for lodging appellate court cases. In Universal City mation from its papers, just as it would refuse the records and the process followed by the Studios, Inc. v. Superior Court,28 the defendant to order production in the first instance.34 If court if it grants the sealing request. in the underlying case, Universal City Studios, the information does not satisfy the confi- If the designating party is relying on its filed a mandate petition seeking to compel the dentiality test under Rule 243.1, the court own confidential information, it files the seal- trial court to seal various documents pertinent should simply strike the confidentiality des- ing motion with its moving papers. Implicitly, to an arbitration dispute. In support of its ignation and refuse to seal the record. If the the rules place the same burden on the receiv- petition, the defendant lodged two documents information qualifies for protection under ing party. Thus, if the receiving party is filing under seal and filed a motion to seal the appel- 243.1 and is relevant to the motion, the court a motion not involving discovery and intends late records under Rule of Court 12.5(e). The should grant the request to keep the record to rely on confidential information from the court denied the defendant’s motion to file the under seal. designating party, the receiving party is documents under seal and returned them to The recent trend in which courts prevent required to file a noticed motion concurrently the defendant, giving the defendant leave “to documents from being filed under seal, how- with its moving papers that asks that the con- file any supporting documents it wishes; but ever, should guide counsel in making the fidential information be placed under seal. they must not be lodged under seal.”29 decision whether to withhold confidential The receiving party, however, may be ambiva- Similarly, in Huffy Corporation v. Superior information that is within the gray area of lent as to whether the record is sealed and Court,30 the appellate court barred Huffy, a discovery permitted by the Code of Civil therefore may have little incentive to argue bicycle maker, from submitting evidence Procedure.35 Once a document is disclosed to persuasively that the record should be under seal in support of its mandate petition another party in the litigation, the stipulated sealed.39 It may, in fact, undermine the seal- seeking to set aside an order denying its sum- protective order may not be enough to ensure ing request by stating simply that it is filing mary adjudication motion in an insurance that the document will stay out of public view. the motion because it is required to do so by dispute. The trial court had permitted the Once the receiving party relies on the docu- the protective order but then arguing that it documents to be filed under seal based on a ment in a motion, the court may refuse to seal does not believe that the information is con- stipulated confidentiality agreement between the record and strike the confidentiality des- fidential. Thus it is in the interest of the des- the parties and made no specific findings as ignation. It may be in the client’s best inter- ignating party to draft a protective order that to whether the documents designated confi- est, therefore, to assert the trade secret priv- clearly states what obligations the parties are dential were, in fact, confidential.31 As a con- ilege and resist disclosing this information in to assume in connection with sealing the sequence, the order sealed thousands of the first instance—assuming, of course, that record—in discovery disputes and non-dis- pages of nonconfidential material, including the client has a good faith basis for asserting covery disputes. “routine legal argument concerning insur- the trade secret privilege. In addressing the burden of sealing the ance coverage, notices of motion,” and proofs Often, a client’s views about the sensitiv- record, the protective order can reflect one of of service.32 Not surprisingly, the appellate ity of information may be different from those the following three alternatives. One alter- court gave no deference to the trial court’s ini- of the court, as Huffy and Universal City native is simply to draft the protective order tial decision to seal the documents.33 The Studios illustrate. If a client cannot withdraw so that it requires the receiving party to file court of appeal’s ruling sent the confidential a document that is about to lose its confi- the motion to seal the record. If the receiving documents back to Huffy and gave it 10 days dential status, counsel may find themselves party does not sufficiently address the either to appeal without the documents or to in the unenviable position of having to tell grounds for the sealing request, the desig- appeal with the documents lodged in open the client that the information that the client nating party would join the motion and file a court. had expected would be seen only by the lim- supplemental brief explaining why the record A court may face a more difficult issue, ited group of persons identified in the stipu- should be sealed. There are two disadvan- however, when the party seeking to rely on lated protective order will now be part of the tages to this approach. First, it puts the bur- the confidential document is not the party public record. That conversation will be even den on the receiving party to file what, from that produced it and has no interest in keep- more uncomfortable if the client believes that its point of view, is an unnecessary brief. ing the document confidential. No court has he or she did not have to provide the infor- Second, it puts the designating party in the explained how the procedure outlined in Rule mation at all. procedural posture of being an opponent to a 243.2 applies in this situation. Who has the motion it ostensibly supports and offers no burden of filing the motion? How will a court Drafting the Protective Order opportunity for the designating party to address the sealing request when the party Proper drafting of a stipulated protective respond should the receiving party, in its relying on the confidential information is not order, therefore, is important to avoid running reply papers, further challenge the confi-

LOS ANGELES LAWYER / APRIL 2004 23 dentiality designation. A second alternative is to seek the court’s Steve Fisher approval to ﬁle the motion, opposition, and reply briefs simultaneously. This gives the

Deposition Summaries designating party the opportunity to make Providing comprehensive, accurate, and the appropriate sealing motion, which may be easy to read deposition summaries for all filed along with the record that the designat- types of civil cases since 1987. ing party wants sealed. Because the desig- 818/563-4496 nating party will have the full set of papers on sfi[email protected] which to base the sealing motion, it can iden- For rate information, summary samples, tify with precision the portion of the record and client testimonials, please visit that it wants to be kept confidential. www.deposummary.com This alternative imposes the fewest administrative burdens on the parties. However, it alters the filing procedures described in the Code of Civil Procedure. It therefore may not be acceptable to the court. It also might not be acceptable to the court’s clerks, who will have less time to review the moving and opposition papers. A third alternative is to give the receiving JudgmentsEnforcedJudgmentsEnforced party a choice: make a good faith motion to seal the record or give the designating party advance notice of the information on which it Law Office of Donald P. Brigham intends to rely, sufficient to enable the designating party to prepare the motion. In most 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 cases, this alternative is the one that is likely P: 949.206.1661 to be most acceptable to the parties if the F: 949.206.9718 court is not willing to accept the motion [email protected] AV Rated papers as a package. This alternative is con- structive because it balances the interests and burdens of both parties. (See “An Order to Protect Confidential Material” on page 22 for a sample stipulated protective order form that incorporates this third alternative.) If a receiving party does not believe the information was properly designated, it should challenge that designation at the time of production. This process, of course, also should be described in the stipulated protective order. At some point, the Judicial Council may clarify the rules governing the procedure for sealing records. In the meantime, however, these issues must be considered and addressed at the time the stipulated protective order is being negotiated and before decisions are made concerning information to be disclosed. ■

1 See, e.g., Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 105 (2003) (“The respondent court’s order seals the entirety of any law and motion papers which refer to a document deemed confidential by the parties which is disclosed as part of the discovery process.”). 2 NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999). 3 CODE CIV. PROC. §124. 4 U.S. CONST. amend. I. 5 See CAL. R. CT. 12.5, 243.1, 243.2. 6 CAL. R. CT. 243.1(a)(2) (Rules 243.1 and 243.2 “do not apply to discovery motions and records ﬁled or lodged in connection with discovery motions or proceedings.”). 7 Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 105 (2003) (The trial court’s sealing order that did not require the court to make factual ﬁndings beforehand failed to comply with the requirements of the NBC

24 LOS ANGELES LAWYER / APRIL 2004 decision and Rules of Court 243.1 and 243.2.); Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1283 (2003) (setting forth the findings that trial CORPORATE 34 Years Experience in the Boardroom courts must make before sealing records). • Member, Corporations Committee of the 8 See CAL. R. CT. 243.2. LAW 9 CODE CIV. PROC. §§2031(f)(5), 2025(i)(13); see GT, Inc. Business Law Section, State Bar of California v. Superior Court, 151 Cal. App. 3d 748, 755 (1984); EXPERT • Author, Lecturer, Consultant Hofmann Corp. v. Superior Court, 172 Cal. App. 3d • Editor of the Southern 357, 363 (1985); Moscowitz v. Superior Court, 137 Cal. App. 3d 313 (1982). WITNESS California Law Review 10 The Evidence Code provides statutory guidelines R for determining whether a protective order should ogers, Sheffield issue to protect trade secrets during a criminal pro- campbell,llp ceeding. See EVID. CODE §§1060, 1061. In Stadish v. (805) 963-9721 Superior Court, 71 Cal. App. 4th 1130, 1144-45 (1999), B. Keith Martin, Esq. however, the court held that “the procedures called for caltech bsee • usc jd [email protected] in section 1061 have utility in a civil action in protect- www.high-techlawyer.com ing the trade secret privilege provided in section 1060 and should be followed.” See also State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 650 (1997). 11 2 CIVIL DISCOVERY PRACTICE §9.60, at 810 (3d ed. May 2001). 12 See Raymond Handling Concepts Corp. v. Superior Court, 39 Cal. App. 4th 584, 590 (1995). 13 See EVID. CODE §1060; Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal. App. 4th 1384, 1397 (1992). 14 See, e.g., TBG Ins. Svc. Corp. v. Superior Court, 96 Cal. App. 4th 443, 454 (2002). 15 NBC Subsidiary, Inc. v. Superior Court, 20 Cal. 4th 1178 (1999). 16 Cal. R. Ct. 243.1 advisory committee cmt. (brackets added). 17 Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 104 (2003). 18 Id. 19 See Huffy Corp., 112 Cal. App. 4th 97, 104; Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1283 (2003). 20 NBC Subsidiary, Inc., 20 Cal. 4th 1178, 1182. 21 See id. 22 Id. at 1217-18 (footnotes omitted). 23 See In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 299-300 (2002). 24 CAL. R. CT. 243.2(b). 25 CAL. R. CT. 243.2(b)(3). 26 CAL. R. CT. 243.1(a)(2). 27 CAL. R. CT. 243.2(b). 28 Universal City Studios, Inc. v. Superior Court, 110 Cal. App. 4th 1273, 1283 (2003). 29 Id. at 1275. The court noted the axiomatic conclusion that the denial of the defendant’s sealing request would lead, inexorably, to a denial of the mandate petition: “Without the foregoing documents, the denial of defendant’s mandate petition is now foreordained because it will not be supported by the documents it seeks to have sealed.” Id. 30 Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, 105 (2003). 31 Id. at 105. 32 Id. 33 Id. 34 See, e.g., Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal. App. 4th 1384, 1397 (1992). 35 CODE CIV. PROC. §2017(a) (requiring that the information sought be “not privileged,” “relevant to the subject matter of the action,” and either admissible or “reasonably calculated to lead to the discovery of admissible evidence”). 36 CAL. R. CT. 243.2(b)(1). 37 CAL. R. CT. 243.2(b)(2). 38 CAL. R. CT. 243.2(b)(4). 39 If it is in the recipient’s interest to have the material no longer designated confidential, it should file a motion challenging the confidentiality designation at the time of production.

LOS ANGELES LAWYER / APRIL 2004 25 practice tips

By Paul D. Supnik

Protecting Trademarks under the Madrid Protocol

A new tool exists menting legislation and regula- Act,4 which Congress passed in through all the member coun- tions in the United States allow 2002, provides the implementing tries, because the cost of that type for U.S. businesses for the filing of a single interna- legislation, and the USPTO has of extensive filing, even under tional application through the promulgated rules of procedure.5 the Madrid Protocol, is still pro- seeking trademark U.S. Patent and Trademark Most U.S. businesses could hibitive and usually unnecessary. Office (USPTO). This application not take advantage of the older Clients and their counsel should protection in other is then transmitted electronically Madrid Arrangement because pick countries of greatest interest. to the World Intellectual Property companies resident in nonmem- Significant cost savings will most countries Organization (WIPO), an organ- ber countries are required to likely be achieved because, ization of the United Nations have a physical presence or a instead of multiple national fil- located in Geneva, Switzerland, “real and effective industrial ings, the Madrid Protocol offers nternational trademarks pro- that administers various intellec- or commercial establishment” in a single registration, and payment tect companies doing busi- tual property treaties. WIPO in a member country. The United of agents and attorney’s fees Iness abroad from foreign turn forwards the application to States was not a member of the abroad may be reduced if not infringers who may profit from, the countries designated in the Madrid Arrangement,6 and even eliminated. Companies seeking and destroy, a company’s good- application. Each designated if a subsidiary corporation of a trademark protection abroad can will and reputation. While trade- country examines the application U.S. company was located in a be guided by a rule of thumb: If mark protection in the United according to its laws, subject to Madrid Arrangement country, they are considering registering States is often achieved through certain limitations imposed by that was not adequate for the sub- their marks in three or more common law rights and through the Madrid Protocol. The result- sidiary’s parent company to file a countries, it is worthwhile to con- Section 43(a) of the Lanham Act,1 ing trademark protection is a Madrid Arrangement application. sider filing under the Madrid foreign trademark protection is Madrid registration, known as an Nevertheless, the Madrid Ar- Protocol. obtained primarily through actual international registration, that is rangement has been an impor- registration of the marks. Thus, effective in those countries that tant part of the international The Application foreign trademark registration did not raise timely objections. trademark community in Europe Procedure for U.S. companies may be the The Madrid Protocol is part of and elsewhere. While the Madrid To understand the procedure only route to sig- the Madrid Sys- Arrangement does not extend to for prosecuting an international nificant protection Paul D. Supnik tem, which consists every country in the world, it has registration, it is helpful to first in other countries. practices copyright, of two companion been effective in numerous coun- understand the procedure for Foreign registra- trademark, and treaties. One of the tries considered to be major and obtaining protection abroad using tion is expensive, entertainment law in treaties, the Ma- midrange export markets. national filings and not the and the procedures Beverly Hills. He is a drid Arrangement, The more recent Madrid Madrid Protocol. A national trade- may be cumber- former chair of the has been in exis- Protocol in many ways parallels mark application is filed abroad some. With the pri- Intellectual Property tence since 1891 the Madrid Arrangement proce- by initiating a request with a for- mary exception of and Entertainment but without the par- dure, though the membership of eign trademark attorney or agent the Community Law and the ticipation of the the two treaties is somewhat in the nation in which protection Trade Mark estab- International Law United States. The different. The Madrid Protocol is desired. Usually, that request is lished by the Euro- Sections of the Los other treaty, the makes cost-effective registrations sent through trademark counsel pean Union (EU), Angeles County Bar Madrid Protocol, available in more countries while in the United States, who sends a registration must Association. was entered into in taking into account limited busi- letter to the foreign trademark be obtained in each 1989.2 The United ness budgets. A U.S. business is counsel. The foreign trademark country in which States deposited now able to obtain a registration counsel puts the application in a trademark protection is desired. with the director general of WIPO that can have validity currently in form satisfactory to the local gov- Since November 2, 2003, how- its instrument of accession to the more than 62 countries, including ernment office, which registers ever, the Madrid Protocol has Madrid Protocol on August 2, those in Western, Central, and the intellectual property rights. been available to U.S. businesses 2003, making the Madrid Eastern Europe, in Asia, and in The trademark owner pays attor- to simplify the process of regis- Protocol in force for the United other regions as well.7 This does ney’s fees for U.S. counsel and tering trademarks abroad. The States on November 2, 2003.3 The not mean, however, that applica- foreign counsel and government Madrid Protocol and its imple- Madrid Protocol Implementation tions will regularly be processed filing fees and registration fees,

26 LOS ANGELES LAWYER / APRIL 2004 APRIL 2004 MASTER 3/12/04 11:42 AM Page 27

usually on a country-by-country basis (the designated countries, a response by a trade- for the recordation or transfer of an interna- primary exception being the EU’s Community mark attorney abroad will be necessary, and tional registration or application filed under Trade Mark, for which a single fee is paid).8 registration expenses will increase. The pro- the Madrid Protocol will be less than for mul- Companies face additional fees if the appli- tection of what the Madrid Protocol refers tiple national filings. The only real restric- cation is rejected. As the number of coun- to as an international registration will apply if tion on transfers of a registration to a new tries chosen for trademark protection the application is not opposed or rejected by entity is that the assignee must have an estab- increases, so do the number of filings and any of the designated countries within 18 lished place of business or residence in a attendant costs. months of the WIPO notification. country that is a member of the Madrid Under the Madrid Protocol, registration in An applicant can still receive an interna- Protocol.15 many countries is achieved with one appli- tional registration even if one or more of the cation, referred to as the international appli- designated countries object to the registration. Disadvantages cation under Article 3 of the protocol. For Rejection by a particular country will limit The disadvantages of using the Madrid United States applicants, that international the territorial scope of the international reg- Protocol for international trademark protec- application must be based either on an exist- istration but does not affect the registration tion must be considered by companies and ing U.S. registration or a pending U.S. appli- as to other designated countries. their counsel. There is less flexibility in a sin- cation, which may be filed simultaneously. An international registration under the gle international registration than in filing The usual Madrid Protocol application Madrid Protocol lasts 10 years and may be multiple national applications. This is true process will begin with the trademark attor- renewed for additional 10-year periods.11 The particularly and most significantly regarding ney sending the international application to applicant may later apply to extend the terri- the issue of the scope of the registration. the USPTO. At press time, only paper forms torial reach of the international registration to When an application for registration is filed in were acceptable, and the forms must be additional member countries.12 the United States or abroad, the goods and mailed or delivered by hand. Ultimately, these services must be identified in the applica- forms will be available online, and the USPTO Maintaining the Registration tion. The identification cannot be indefinite or will require them to be transmitted via the One of the key features of the Madrid overly broad, or the USPTO will reject it. Internet.9 Protocol’s trademark registration process is Foreign government intellectual property The application designates various coun- that renewal of the registration, and title and offices tend to permit much broader desig- tries for which “territorial extension of pro- name changes, are greatly simplified in com- nations of goods and services than are per- tection” is desired. Protection under the parison to what is required for individual mitted in the United States. However, the Madrid Protocol cannot be extended to the national filings. Indeed, renewing the regis- identification of goods and services in the EU as a whole, because the EU is not cur- tration at 10-year intervals can be accom- Madrid Protocol international application rently a “contracting organization” and, there- plished by a single filing with WIPO. must be the same as or narrower than the fore, designation of each of the EU countries When a trademark is transferred or identification of goods and services of the for which protection is sought must be made assigned, whether in a foreign country or trademark registration in the originating on the application. However, it is anticipated the United States, it is usually beneficial or home country.16 that this year, the EU will become a member necessary to record that transfer. The recor- Broader identifications become more sig- of the Madrid Protocol, thus permitting the dation may be a prerequisite to maintaining nificant abroad because foreign laws often EU to be designated in place of selected and a lawsuit in the name of the transferee or it require similarity of goods and marks in order named EU countries. may establish priority over subsequent bona to find trademark infringement. Broad iden- The cost of filing the international appli- fide purchasers without notice. There are tifications are less important in the United cation is based upon the countries desig- significant benefits under the Madrid Protocol States, which tends to rely more on liberal nated. The cost for designating each country when transferring or assigning a mark. For interpretations of trademark law through the varies but is not more than the cost of filing instance, when companies are acquired, sold, general concepts embodied in Sections 32 individual national applications in the desig- or merged, only a single document need be and 43(a) of the Lanham Act. For example, nated countries, and is usually less. The fact filed to transfer the application or registration Section 32 of the Lanham Act provides for a that a very specific, standardized format is in all member countries of the Madrid civil trademark infringement action when required in connection with Madrid Protocol Protocol.13 Under the method of multiple there is use in commerce of “any reproduc- applications means there will be fewer rejec- national filings, trademark counsel must send tion, counterfeit, copy, or colorable imitation tions of the applications at trademark offices paperwork and instructions to counsel in of a registered mark in connection with the abroad. At least in the initial stages of the each country in which there is an applica- sale…of any goods or services on or in con- process, foreign counsel may not be needed, tion or registration, with attendant costs of nection with which such use is likely to cause though early advice of foreign counsel may local counsel and government filing fees in confusion, or to cause mistake, or to still at times be desirable to reduce the like- each country. Various countries have special deceive….”17 Thus, a showing that the goods lihood of a rejection from a particular coun- requirements regarding the “legalization”14 of at issue are similar is not necessary to sustain try at a later stage.10 documents or other formalities that affect a claim for infringement in the United States Within two months of filing with the the costs of recording transfers. For California if there is a likelihood of confusion. USPTO, the international application is sent companies, legalization—even under the sim- Another drawback is that there are a num- by the USPTO to WIPO in Geneva. WIPO plified Hague Convention Abolishing the ber of important countries that are not cur- then distributes the international application Requirement of Legalization of Foreign Public rently members of the Madrid Protocol, to the previously designated countries, which Documents—generally means having a doc- including Canada, Mexico, Argentina, Brazil, may examine the application with the option ument notarized locally and sending it to the and Chile. However, WIPO has agreed to add to object to registration within a fixed time fol- California secretary of state’s office for an Spanish as a third language acceptable for lowing the WIPO notification. In the event the “apostille” (certification of authenticity) to document filings (French and English are Madrid application is rejected by any of the be affixed to the document. Clearly the costs the other two), and with this act there is antic-

LOS ANGELES LAWYER / APRIL 2004 27 ipation that Spanish-speaking countries may tion granted under U.S. laws to foreign com- TRUST DEED FORECLOSURES ultimately join the Madrid Protocol. At pres- panies that are doing business here in the “Industry Specialists For Over 15 Years” ent, it would seem that the Madrid Protocol United States. The protection granted by the t Witkin & Eisinger we specialize in the Non-Judicial is primarily useful for filing in countries in the international registration under the Madrid A Foreclosure of obligations secured by real property Far East, particularly China, Japan, South Protocol is the same as if the mark were reg- or real and personal property (mixed collateral). Korea, and Singapore. istered in the USPTO.22 When your client needs a foreclosure done profession- The Madrid registration is subject to what ally and at the lowest possible cost, please call us at: Domestic Searches 1-800-950-6522 is known as a central attack. One of the basic We have always offered free advice to all attorneys. facts about a U.S.-originated international Even for those not contemplating regis- registration under the Madrid Protocol is tration abroad, the Madrid Protocol has con- WITKIN that the registration will be based on the sequences for companies that are only inter- underlying U.S. application or registration. ested in using their trademarks in the United EISINGER, LLC If the U.S. registration fails at any time during States. Because of the advantages provided RICHARD& G. WITKIN, ESQ. ✦ CAROLE EISINGER the first five years of the international regis- under the Madrid Protocol, potential users of tration, the entire international registration a mark may be vulnerable to hidden rights also fails. An attack on the underlying U.S. that may not immediately appear in trade- application or registration can occur through mark searches. an opposition or cancellation proceeding in For example, a company that files an appli- the USPTO or a court. If the U.S. trademark cation in a country other than the United registration is not canceled within its first States may file an application to register the five years, then the international registration mark in the United States within six months takes on a life of its own, independent of the of the filing date in the other country. A cur- U.S. registration.18 Thus, the Madrid regis- rent domestic search will not uncover the tration remains vulnerable for only the first use of the mark in the country abroad, yet the five years following registration, after which use may establish a priority over a subse- it becomes independent of the home country quent use in the United States. This so-called registration. blind spot results from the Paris Convention, If a successful action challenging the reg- which preserves the filing date of an appli- istration is begun prior to the expiration of the cant’s home country filing for up to six five-year period, such as an opposition or can- months for the purpose of establishing priority cellation proceeding, the protection from the for a filing in a member country.23 The Madrid international registration can no longer be Protocol may extend the time period of this invoked. Under the Madrid System, central blind spot because an international application attacks have occurred infrequently; anecdo- may be filed that might not appear in a search tally, the number of international registra- for two or more months beyond the six tions subjected to a central attack is less than months provided by the Paris Convention.24 1 percent.19 However, Madrid System filings are now com- If a mark is canceled in the home country, monly shown on comprehensive trademark and the Madrid application fails, trademark search reports. Follow-up searches for protection may not necessarily be lost. The Madrid filings are possible, though not always Madrid Protocol borrowed a concept from practical on a regular basis. the EU’s Community Trade Mark System While a Madrid registration that is applic- that allows the applicant or registrant to “trans- able outside the United States may be form” the underlying home country applica- extended to the United States, the priority of tion by filing national applications with each the registration in the United States is not of the desired countries while preserving the likely to be effective until after the extension priority resulting from the filing date of the is sought. Thus, it is not likely to have a sig- otherwise invalid Madrid application.20 nificant effect on domestic trademark rights. Although renewals are effected simply by The Madrid Protocol is a new tool in the paying a filing fee to WIPO, member countries hands of the U.S. trademark lawyer to evalu- may still require affidavits of use to maintain ate the best route to obtaining trademark pro- registrations. For example, the USPTO tection in countries outside the United States. requires the filing of affidavits between the While not perfect, the Madrid Protocol pro- fifth and sixth year following the issuance of vides a system for a lower-cost method of an extension of protection, and within six obtaining trademark protection in many mar- months of the 10-year anniversary of the date kets around the world, enhancing the ability of the extension of protection.21 of companies in the United States to do busi- While U.S. companies have the opportu- ness abroad in selective territories on a more nity to file trademark applications abroad cost-effective basis. under the Madrid Protocol, foreign countries Not every foreign application may war- may designate the United States as a country rant a Madrid filing. Discussion with trade- in which protection is sought. This may have mark counsel may be helpful in determining a tendency to slightly increase the protec- an optimal approach to foreign filing that will

28 LOS ANGELES LAWYER / APRIL 2004 balance the issues of cost, registration, and protection. ■

1 The Lanham Act, 15 U.S.C. §1123(a). This statute is commonly used to stop infringement of unregistered trademarks or common law marks in the United States as “false designations of origin” affecting interstate commerce. 2 Protocol Relating to the Madrid Agreement Concern- ing the International Registration of Marks, Adopted at Madrid on June 28, 1989 [hereinafter Madrid Protocol], available at http://www.wipo.int/madrid/en/legal _texts/madrid_protocol.htm 3 116 Stat. 1761, Pub. L. No. 107273 (Nov. 2, 2002). 4 The Madrid Protocol Implementation Act, 116 Stat. 1913, Pub. L. No. 107-273 (2002). 5 68 Fed. Reg. 187 (Sept. 26, 2003). 6 See Madrid Protocol, supra note 2, art. 2, §1(i). 7 For a list of contracting parties, see http://www.wipo .int/treaties/index.html. 8 See Frits Mutsaerts, The Community Trademark, LOS ANGELES LAWYER, Sept. 1996, at 17. MOHAJERIAN 9 These filings will take place on the TEAS Web page LAW CORPORATION of the U.S. Patent and Trademark Office. 37 C.F.R. §7.11(a); http://eteas.uspto.gov. 10 A calculator for determining filing fees can be found ◆ COMPLEX BUSINESS CORPORATE & ENTERTAINMENT on the WIPO website at http://www.wipo.int. LITIGATION 11 Madrid Protocol, supra note 2, art. 6(1): “Registration ◆ of a mark at the International Bureau is effected for ten EMPLOYMENT, REAL ESTATE & FRANCHISE LITIGATION years, with the possibility of renewal under the condi- ◆ FRANCHISING & LICENSING; TRADEMARKS & tions specified in Article 7.” COPYRIGHTS; CORPORATIONS, LLC, LLP 12 Madrid Protocol, supra note 2, art. 3ter(2). 13 Id., art. 9, art. 9bis. 14 Legalization is the process of authenticating docu- “Balancing the Scales of Justice, Tel: (310) 289-9625 ments and their execution in international transac- One Day At at a Time” Visit us Online: www.law-up-date.com tions. When the country in which the document needs to be filed is not a member country of the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, the process may be complex: The county clerk authenticates the notary certificate, the California secretary of state authenticates Anita Rae Shapiro the county clerk certificate, the U.S. State Department SUPERIOR COURT COMMISSIONER, RET. attests to the secretary of state authentication, and the embassy of the country in which the document is to be used approves the U.S. secretary of state authentication. PRIVATE DISPUTE RESOLUTION See http://travel.state.gov/authentication.html. PROBATE, CIVIL, FAMILY LAW 15 See Madrid Protocol, supra note 2, art. 9bis, art. 2(1). ROBATE XPERT ITNESS 16 37 C.F.R. §7.11. This regulation specifies as one of the P E W requirements for an international application originating from the United States “(7) A list of the goods TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 and/or service that is identical to or narrower than E-MAIL: [email protected] the list of goods and/or service in each claimed basic http://adr-shapiro.com application or registration and classified according to FEES: $300/hr the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.” 17 15 U.S.C. §1114 (1988). 18 Madrid Protocol, supra note 2, art. 6. 19 WIPO, PROTECTING YOUR TRADEMARK ABROAD: 20 QUESTIONS ABOUT THE MADRID PROTOCOL: “In 2000, nearly 23,000 international registrations were effected; during the same period, only 140 international registrations were canceled (in whole or in part) as a result of central attack.” 20 Madrid Protocol, supra note 2, art. 9 quinquies; 37 C.F.R. §7.31(a). 21 15 U.S.C. §1141k. 22 Madrid Protocol, supra note 2, art. 4(1)(a). 23 21 U.S.T. 1583, 15 U.S.C. §1126(d). 24 Article 3(4) of the Madrid Protocol requires that the International Bureau accord a date when the international application was received in the office of origin if it is received by the International Bureau within two months of that date.

LOS ANGELES LAWYER / APRIL 2004 29 By David L. Brandon Burning ISSUESThe representation of insureds under burning limits policies raises a host of ethical issues

nder standard liability insurance poli- ple: Every dollar spent on defense reduces by costs are not charged against the indemnity cies, the insurer has a duty both to one dollar the amount available to settle or limits until after the exhaustion of the defend the claim being asserted otherwise resolve the claim. insured’s deductible and/or a preset expense against the insured and to indemnify Most professional liability policies now allowance. For example, one lawyer’s pro- the insured from the risk.1 Although include burning limits provisions.5 These fessional liability policy provided that the standard policies limit the amount include lawyers’ professional liability poli- indemnity limits would not erode until defense U 6 that the insurer must provide to indemnify the cies, director and officer (D&O) professional costs exceeded $55,000—the combined total insured (to fund a settlement and/or judg- liability policies,7 and employment practices of the $50,000 expense allowance and the ment), they do not limit the amount that the liability (EPL) policies.8 Although the major- insured’s $5,000 deductible.12 insurer must pay to defend the claim (to pay ity of casualty insurance policies, such as Some insurers have disclosed the fact that for the fees of defense counsel, retained automobile, homeowner’s, and general lia- there are burning limits directly on the dec- experts, and other defense costs).2 bility policies, do not yet contain burning lim- larations page. For example, one professional Increasingly, however, liability policies its provisions,9 they are increasing in fre- liability policy issued in 2001 stated conspic- contain a provision that controls the amount quency in those types of policies as well.10 uously on the declarations page: “THIS POL- that insurers will pay for the defense of a A typical burning limits policy does not dis- claim. These types of “self-liquidating” policies tinguish between the cost of defense and the David L. Brandon is senior counsel at Morris are also known as “wasting,” “cannibalizing,” cost of settlement or judgment when calcu- Polich & Purdy LLP in Los Angeles and adjunct “self-consuming” or “defense within limits” lating the amount charged against the policy professor of appellate law at Loyola Law School. policies because the available indemnity limit limit.11 While some burning limits policies His practice includes the litigation of profes- may be eaten or wasted by the costs of provide that defense costs begin to erode the sional liability and appellate matters. The defense.3 They are also frequently referred to indemnity limits when the ﬁrst dollar is spent author would like to thank Walter J. Lipsman as “burning limits” policies.4 The idea is simon defense, others may provide that defense for his assistance in writing this article. KEN SUSYNSKI

30 LOS ANGELES LAWYER / APRIL 2004

APRIL 2004 MASTER 3/12/04 11:43 AM Page 32

ICY CONTAINS PROVISIONS THAT accompanied by a budget of potential costs the policy limits.24 REDUCE THE LIMITS OF LIABILITY through trial. These initial documents should The plaintiff attorney whose normal STATED IN THE POLICY BY THE COSTS be provided to both the insurer and the approach includes aggressive litigation in the OF LEGAL DEFENSE AND PERMIT insured and should be updated at regular early part of a claim—such as by filing suit LEGAL DEFENSE COSTS TO BE APPLIED intervals and after significant events in the lit- and conducting discovery before opening a AGAINST THE DEDUCTIBLE.” The applic- igation. If defense counsel concludes that the dialogue with the insurer—needs to consider able burning limits language was contained potential costs of the defense may severely that every dollar spent on defense counsel’s within the body of the policy itself, under a impair the ability of the insurer to indemnify response could be decreasing the plaintiff’s section entitled “Defense, Settlement,” and the insured for the potential exposure, the potential recovery.25 The plaintiff attorney stated, “It is further agreed that…the lawyer should bring this to the attention of should therefore evaluate the potential ben- Company shall not be obligated to pay any both the insurer and the insured at the earli- efits that could accrue from any proposed lit- Claim, judgment or Claim Expenses or to est possible opportunity.16 igation activity and weigh them against the defend or continue to defend any Claim after If the attorney determines that a certain potential decrease in available policy limits for the applicable limit of the Company’s liability activity is necessary to defend the action, but the client’s eventual recovery.26 Since an attor- has been exhausted by payment of judgments, the insurer directs the attorney to forego that ney has an ethical duty to keep the client settlements or Claim Expenses.” activity, the attorney should advise the insured fully informed,27 the plaintiff attorney must Other policies provide for burning limits of the recommended activity and determine explain to the client the effect of the pro- by using language that defines the “loss” for if the insured wants the attorney to conduct posed litigation activity on the client’s even- which the insured is covered as including that activity. While it has been held that the tual recovery.28 defense expenses. For example, in one case13 insurer should have absolute control of the In turn, defense counsel should be care- a court of appeal construed as containing a defense in the absence of a conflict of inter- ful about the accuracy of the representations burning limits provision a D&O policy that est,17 it has also been suggested that restric- that are made to the plaintiff regarding the defined a “loss” as “‘any amount which the tions that the insurer places on discovery or indemnity limits available to satisfy a claim. In insureds are legally obligated to pay for a other litigation costs could “violate the insur- a recent case, the court of appeal held that an claim or claims made against them for er’s duty to defend as well as the attorney’s attorney retained by an insurer to provide a Wrongful Acts, and shall include damages, ethical responsibilities to exercise…inde- coverage analysis (“coverage counsel”) could judgments, settlements, costs, charges and pendent professional judgment in rendering be sued by a judgment creditor of the insured expenses (excluding salaries of officers or legal services.”18 This conforms to the rule for misrepresenting the scope of available employees of the Company) incurred in the that when “an attorney represents two clients coverage for the claim.29 After entry of an defense of actions, suits or proceedings and with divergent or conflicting interests in the adverse judgment against the insured, the appeals therefrom….’”14 same subject matter,…the attorney must dis- coverage attorney advised the judgment cred- For defense attorneys who agree to rep- close all facts and circumstances which, in the itor that the available insurance did not pro- resent an insured under a burning limits pol- judgment of a lawyer of ordinary skill and vide indemnity for any willful acts—despite icy, unique ethical issues may emerge in the capacity, are necessary to enable his client to being aware that the insurer had agreed to course of the representation. These issues make free and intelligent decisions regarding cover willful acts. Noting that “cases from can arise when the attorney is first retained, the subject matter of the representation.”19 If twenty-eight states hold that an attorney can during litigation and settlement discussions, the disclosure of this information results in an be liable to a nonclient, even an adversary in and even at the termination of the insurer’s irreconcilable conflict in which the insured no litigation, for fraud or deceit,”30 the court duty to defend. longer consents to the defense attorney’s reversed an order of dismissal and permitted continued representation, the defense coun- the plaintiff to proceed against the insurer’s Ethical Issues at Retention sel may be required to withdraw from fur- coverage counsel.31 The attorney’s representation of a client under ther representation.20 Defense counsel, however, may have the provisions of a declining limits policy may defenses to misrepresentation claims by liti- challenge commonly understood notions of Litigation and Settlement gation opponents that are not available to the attorney’s duties of loyalty and full dis- If the potential value of the claim meets or coverage counsel. For example, the plaintiff closure. The insurer may want certain activ- exceeds the available indemnity limits, both may not be permitted to justifiably rely on rep- ities to be undertaken in order to protect its sides—the plaintiff and the defendant—will be resentations by defense counsel, whose state- potential indemnity liability, while the insured motivated to preserve the indemnity limits for ments may be protected by the litigation priv- may want to refrain from some activities to the eventual satisfaction of the claim.21 The ilege.32 However, the prudent defense preserve the policy limits for a potential set- plaintiff and defense attorney must be aware attorney should take steps to avoid becoming tlement or payment of an eventual judgment. of this possibility at the outset of the claim a test case for the scope of this protection. One commentator believes that the defense process. Therefore, when responding to inquiries attorney, in order to fulfill the duty of loyalty One of the plaintiff attorney’s first objec- regarding available insurance,33 defense coun- and to perform competently, must advise the tives therefore should be to determine not just sel should consider revealing with specificity insured of the benefits of the suggested liti- whether the defendant is insured and, if so, that the stated policy limits may be subject to gation activity and its potential effect both the policy limits, but also whether the limits reduction by defense costs. on the defense of the case and on the available are subject to reduction by defense expendi- indemnity limits.15 tures.22 Instead of merely serving the Judicial Termination of the Insurer’s Duty to Defend One means to satisfy this requirement is Council-approved Form Interrogatory 4.1,23 If the declining limits are exhausted, the to create a liability analysis report and a liti- the plaintiff attorney may also consider pro- insurer will in all probability advise the gation budget. Defense counsel should pounding an interrogatory that inquires in insured and defense counsel that it will cease attempt to prepare a preliminary liability more detail the extent to which any other funding the defense. The insurer’s decision, analysis as soon as possible after assignment, current or existing claims have compromised however, does not relieve defense counsel

32 LOS ANGELES LAWYER / APRIL 2004 of the fiduciary duty to the insured. An attorney’s fees may not be enough to relieve the instead, the attorney must obtain the con- ney may not simply stop representing the attorney of the obligation to continue to rep- sent of the client to the change.36 client in such cases; instead, the attorney resent the insured in litigation. Defense counsel may therefore want to must obtain permission to withdraw from the Nor may the defense attorney simply start attempt to negotiate a fee agreement directly case, either by a voluntary substitution signed billing the insured. The fact that the insured with the insured. Although there is a gen- by the client or by an order from the court.34 is the attorney’s client does not necessarily eral presumption of undue influence when In both cases, the attorney should consider mean that the insured must pay the attor- an attorney negotiates a contract with an the relevant procedural and ethical require- ney’s bills when the insurance company stops existing client, this presumption does not ments for withdrawal, because the mere fact paying them.35 An attorney cannot make a exist when the contract involves fees for legal that the insurer has stopped paying attor- unilateral alteration to a fee arrangement; services.37 So long as the fee agreement is “fair, reasonable and fully explained to the client,” it will be enforceable.38 What Are Burning Limits Policies? If the client declines to enter into a separate fee agreement at the time that the policy lthough attorneys with experience in litigating professional liability claims are usu- limits are exhausted, any attempt by the attor- ally familiar with the mechanics of burning limits policies, those who practice in ney to collect fees directly from the insured may subject the attorney to disciplinary other areas may be unfamiliar with the policy provisions. This may change if burn- A action. The California Supreme Court has ing limits provisions are incorporated into more types of coverage. In order to identify held that “under a fixed fee contract, an attor- the ethical issues that can arise in cases involving such policies, the practitioner should ney may not take compensation over the fixed be familiar with the mechanics of these policies. fee without the client’s consent to a renego- The following examples demonstrate how the potential ramifications of a burning tiated fee agreement. This is true even if the limits policy can depend on several factors, including the limits of the policy, whether work becomes more onerous than originally the single and aggregate limits differ, whether there is an expense allowance, and the anticipated.”39 amount of any deductible. For purposes of these examples, assume that each claim For this reason, the defense attorney asserted is a separate claim under the provisions of the policy. might discuss with the insured the possibil- Some policies may provide for combined single and aggregate limits in the same ity of entering into a fee agreement at the amount. For example, a policy with combined limits of $1 million provides a maximum inception of the representation. It should be noted, however, that this approach is not uni- total indemnity limit of $1 million for all claims made within the policy period. Therefore, versally practiced by defense attorneys and if the insurer pays out $1 million worth of indemnity for one claim, or $500,000 each can raise as many problems as it seeks to on two claims, there is nothing left on the policy to satisfy any other claims made within solve. For example, the insured may refuse to the policy period. sign a retainer agreement with the defense On the other hand, some policies provide for different single and aggregate limits. attorney at the outset, or the insurer may be Suppose an insured buys a policy with limits of $1 million per claim and $3 million aggre- reluctant to assign cases to a firm that rou- gate. This means that the insurer will pay a total of $3 million for all claims made under tinely seeks separate retainer agreements the policy, but the maximum amount to be paid for any one claim will be $1 million. with an insured. The defense attorney, when Under this policy, if there are three separate claims for $500,000 each, the insurer would seeking a separate retainer agreement with pay $500,000 on each claim, for a total of $1.5 million, leaving $1.5 million to satisfy the insured, should also bear in mind that any remaining claims. But if one claim is seeking $2 million and the other two are seek- many parties purchase insurance precisely because they cannot afford the costs of ing $500,000 each, the insurer will only pay out a total of $2 million: $1 million for defending a litigation claim and may be unable the claim seeking $2 million and $500,000 for each remaining claim, leaving $1 mil- to pay defense costs after erosion of the pol- lion for the satisfaction of any future claims. icy limits, even after agreeing to sign a sepa- The existence of a burning limits provision can change this result. Assume that there rate retainer with defense counsel. is a policy with $1 million combined single and aggregate burning limits. If there is an In either event—whether the defense indemnity payment of $500,000 under a nonburning limits policy, there would be attorney proceeds with or without a separate $500,000 left to satisfy future claims. But under a burning limits policy, defense costs retainer—the attorney should consider send- also reduce the indemnity limits. If the insurer pays a $500,000 claim and also pays ing copies of all the statements for services to defense costs of $100,000, this would leave a total of only $400,000 to satisfy future the insured, including a running total of claims. If the policy provided for indemnity limits of $1 million per claim and $3 mil- defense expenditures. This will enable the lion in the aggregate, there would be $2.4 million left for future claims. insured to remain fully informed of the effect of defense costs on the erosion of the indem- If there is a provision in the policy for an expense allowance and a deductible, the nity limits.40 erosion in policy benefits is reduced somewhat. Given a $1 million combined limits policy with a $50,000 expense allowance and a $10,000 deductible, assume that the insurer Terminating Representation satisfies a claim by paying $500,000 in indemnity and $100,000 for defense. The pol- If the attorney seeks to terminate the repre- icy is eroded by the $500,000 indemnity payment, but its erosion by defense costs is sentation of a litigation client, he or she may limited to $40,000—$100,000 incurred less the $50,000 defense allowance and the do so only after taking “reasonable steps to $10,000 deductible paid by the insured. This leaves $460,000 in indemnity for any future avoid reasonably foreseeable prejudice to the claims. If the policy provides for indemnity limits of $1 million per claim and $3 million rights of the client….”41 An attorney repre- in the aggregate, there would be $2,460,000 left for future claims.—D.L.B. senting a client in litigation cannot simply cease working42 and has a duty to continue to

LOS ANGELES LAWYER / APRIL 2004 33 represent the client until there is a formal been held in another context that the funding for the Legal Services Corporation. withdrawal,43 even in the absence of com- “[r]efusal of the client to consent to an The committee had to address whether attor- pensation for services.44 In addition, the attor- increase of the attorney’s fee does not con- neys whose funding was cut off could with- ney may only withdraw from representation stitute a sufficient excuse for the attorney to draw from representation of their clients.56 after complying with the applicable rules of refuse to proceed further in the case”51 and COPRAC concluded that the attorneys could the particular tribunal before which the case since the granting of a motion to withdraw is not cease representing their clients without is pending.45 These ethical obligations apply within the discretion of the trial court,52 the obtaining a substitution or a court order, opin- regardless of who terminates the attorney- court may require the defense counsel to ing that “legal services attorneys and their client relationship.46 The failure to comply perform services after the exhaustion of the programs may not discontinue representa- with these requirements may subject the policy limits. tion of existing clients merely because funding is impaired or cut off entirely.”57 Once an attorney agrees to undertake the representation of a client, even with an agreement to be paid by a third party, the attorney can only withdraw from representation after following the Rules of Professional Conduct and applicable statutes. The opinion argued, “Regardless of whether the attorneys in the legal services organizations are being paid, once having undertaken to represent a given client, they must continue to serve the client unless withdrawal is permitted by the provisions of rule 2-111 of the Rules of Professional Conduct.”58 While COPRAC concluded that the loss of funding was a legitimate basis for the attorneys to seek to withdraw from representation, it noted that the attorneys might not be able to obtain voluntary substitutions or orders permitting withdrawal from the courts. Under these circumstances, the attorneys would be ethically required to continue to represent their clients despite not getting paid. One paragraph of the opinion is particularly germane to attorneys defending insureds under burning limits policies: While the Committee is sympathetic to the extraordinary dilemma faced by attorney to disciplinary proceedings before In certain circumstances, attorneys who the nearly 500 legal services lawyers in the State Bar.47 were being paid by third parties have been California who may be forced to con- An attorney may withdraw from repre- held to have a duty to continue to represent tinue representation of clients if they sentation in litigation only if the client signs the client when the third party failed to pay are not permitted by the rules to with- a voluntary substitution of attorney or if the the attorney’s fees. This rule was the basis for draw from representation, we are not attorney obtains an order from the court per- a 1981 opinion from the California State Bar at liberty to interpret the rules in a mitting the withdrawal.48 If the client is coop- Committee on Professional Responsibility manner contrary to the plain meaning erative, the attorney may be able to obtain and and Conduct (COPRAC) that the failure of a of the words.59 file a substitution of attorney at any time third party to pay an attorney’s fees does not To avoid this problem, some defense before trial.49 If the client is uncooperative, the release the attorney from an obligation to lawyers may be tempted to request that the attorney must seek an order permitting the continue to represent a client in litigation.53 It insured provide at the commencement of lit- withdrawal, which the trial court could deny was also the basis for a federal court’s refusal igation a signed substitution of attorney form, if it finds that the withdrawal will cause prej- to permit an attorney to withdraw from rep- which would be filed only if policy limits are udice to the client—for example, if the motion resenting an insured even though the insurer exhausted. This practice should be discour- is made close to trial or while a dispositive claimed that its payment of the full policy aged because it runs the risk of subjecting the motion is pending.50 limits ended the insurer’s duty to defend54 attorney to disciplinary proceedings. A 1977 It is unclear whether the exhaustion of and a New York court’s holding that the mere opinion from the Los Angeles County Bar policy limits is a justification for defense coun- fact that the insurer was unable to fund the Association Ethics Committee addresses this sel to seek an order of withdrawal. When a defense did not relieve defense counsel from tactic in a related context.60 The committee defense attorney agrees to represent a client an obligation to continue to represent the was asked to determine whether it was pursuant to a burning limits policy, the attor- insured.55 improper for an attorney to include language ney should consider that a court may con- The 1981 COPRAC opinion addressed the in a retainer agreement that provided for the strue this as accepting representation know- ethical obligations of attorneys who were client to sign an undated substitution form and ing that there is a maximum amount available employed by legal services programs to rep- to grant the attorney authority to file it upon for payment of defense costs. Since it has resent indigent parties when Congress cut 30 days’ written notification to the client. The

34 LOS ANGELES LAWYER / APRIL 2004 4 proposed provision would have stated that tioners should be aware of the potential of Wayne Baliga, Insurance Law: Understanding the ABC’s, 652 PLI/LIT 463, 477 (2001). the substitution could only be filed in the being forced to continue representation of a 5 Karen J. Dilibert, Taking the Hell out of LPL, 90 ILL. event that the client failed to pay for services defendant in litigation without a guarantee B.J. 431, 433 (2002); see also Jack Smart, An Attorney’s rendered and costs advanced. of being paid by the insurer and without an Fees Provision May Not Be a Good Idea, 42-OCT ORANGE The committee concluded that the use of agreement as to who is responsible for the fur- COUNTY LAW 34 (2000). a preexecuted substitution form was incon- ther fees and costs. 6 In 2001, the American Bar Association reported that “38 of the 48 insurers providing legal malpractice cov- sistent with the Rule of Professional Conduct Attorneys must recognize that the com- erage include defense costs within the limits of liabil- precluding withdrawal by an attorney without plexities of the tripartite relationship can cre- ity in their policies.” Munro, supra note 1, at 135. first taking reasonable steps to avoid prejudice ate unique ethical issues. The insurance 7 Jeffrey W. Stempel, A Mixed Bag for Chicken Little: to the client. While the committee recognized defense attorney must be aware of the ethi- Analyzing Year 2000 Claims and Insurance Coverage, that an attorney armed with a preexecuted cal rules that govern attorney-client rela- 48 EMORY L.J. 169, 207 (1999). 8 substitution might refrain from filing it if tionships and their application to their own Jeffrey W. Stempel, Judge-Made Insurance That Was Not on the Menu: Schmidt v. Smith and the Confluence there was a risk of prejudicing the client, the area of practice. Defense counsel should ana- of Text, Expectation, and Public Policy in the Realm of mere “existence of the [form] creates a sub- lyze the ethical aspects of each potential rep- Employment Practices Liability, 21 W. NEW ENG. L. stantial risk that it will be utilized without the resentation on a case-by-case basis. It is REV. 283, 318 (1999). balancing of the client’s and attorney’s inter- entirely possible that the issues present in one 9 Munro, supra note 1, at 131. 10 ests which would occur if the client were particular situation, such as in a case of high Jeffrey W. Stempel, Domtar Baby: Misplaced Notions of Equitable Apportionment Create a Thicket of Potential requested to sign the [substitution] at the potential exposure but low policy limits, will Unfairness for Insurance Policyholders, 25 WM. MITCHELL time the attorney’s desire to withdraw be absent in another case, such as one with L. REV. 769, 853 (1999). arose….”61 The committee ruled that when low potential exposure and high policy limits. 11 Baliga, supra note 4, at 477. the attorney decides to withdraw, the attorney The consideration of the application of estab- 12 Lipton v. Superior Court, 48 Cal. App. 4th 1599, 1606 should first discuss the reasons and conse- lished ethical rules to each attorney-client (1996). Under this type of policy, while the insured is charged with a deductible for each claim made within quences with the client before seeking the situation is a necessary aspect of modern the policy period, the preset expense allowance is ■ substitution. practice. affected by the defense expenses on all claims within These guiding principles may motivate that policy period. See also “What Are Burning Limits defense attorneys to discuss and resolve 1 Gregory S. Munro, Defense within Limits: The Conflicts Policies?” pg. 33. issues regarding the representation of the of “Wasting” or “Cannibalizing” Insurance Policies, 62 13 Helfand v. National Union Fire Ins. Co., 10 Cal. App. cert. denied sub nom. insured at the outset of the attorney-client MONT. L. REV. 131, 132 (2001). 4th 869 (1992), National Union Fire 2 Id. at 132-33. Ins. Co. of Pittsburgh, Pa. v. Helfand, 510 U.S. 824 relationship. Although defense counsel may 3 Rus, Miliband & Smith v. Conkle & Olesten, 113 Cal. (1993). be reluctant to deal with these issues, practi- App. 4th 656, 661 n.1 (2003). 14 Id. at 880 n. 3.

IMMIGRATION LAW

CONSULAR PROCESSING TEMPORARY WORK VISAS LABOR CERTIFICATIONS EMPLOYER SANCTIONS (I-9) Intra-Company Transfers FAMILY RELATED PETITIONS DESIGN CORPORATE IMMIGRATION POLICIES Entertainers & Sports Professionals OUTBOUND VISA CAPABILITY EXPERT TESTIMONIAL SERVICES NAFTA (North American Free Trade Agreement) Visas IMMIGRATION RELATED DUE DILIGENCE Professionals & Investors in Mergers & Acquisitions & Corporate Restructuring Blue/White Collar Employee Immigration Assistance

Global Business Requires Global Knowledge

Newport Beach Los Angeles 4685 MacArthur Court, Suite 400 6310 San Vicente Blvd., Suite 415 Newport Beach, CA 92660 Los Angeles, CA 90048 phone 949-251-8844 phone 323-936-0200 fax 949-251-1545 fax 323-936-4488 email [email protected] AV Rated email [email protected]

www.hirson.com • also in San Diego, CA • Phoenix, AZ • Las Vegas, NV • New York, NY • Wilton, CT • Toronto, Canada David Hirson and Mitchell L. Wexler are certiﬁed by the State Bar of California Board of Legal Specialization as specialists in Immigration and Nationality Law. All matters of California state law are provided by active members and/or under the supervision of active members of the California State Bar.

LOS ANGELES LAWYER / APRIL 2004 35 15 Shaun McParland Baldwin, Legal and Ethical 16 Baldwin, supra note 15. be obligated to respond to such an interrogatory has not Considerations for “Defense within Limits” Policies, 61 17 Gafcon, Inc. v. Ponsor & Assoc., 98 Cal. App. 4th 1388, been specified by case authority in California. DEF. COUNS. J. 89, 99 (1994). However, defense coun- 1406 (2002). 25 Munro, supra note 1, at 157. sel should be aware that any discussion of policy pro- 18 Dynamic Concepts, Inc. v. Truck Ins. Exch., 61 Cal. 26 Baldwin, supra note 15, at 97. Counsel may find that visions may be construed by the insured as rendering App. 4th 999, 1009 (1998). discovery battles will become even less desirable than coverage advice, which may cause the insured to expect 19 Lysick v. Walcom, 258 Cal. App. 2d 136, 151 (1968). they have been previously. Id. that the defense attorney has a duty to render legal ser- 20 American Mut. Liab. Ins. Co. v. Superior Court, 38 Cal. 27 “A member shall keep a client reasonably informed vices regarding insurance coverage. The defense coun- App. 3d 579, 593 (1974). about significant developments relating to employment sel may consider sending the insured a letter at the 21 Baldwin, supra note 15, at 98. or representation, including promptly complying with inception of the relationship that specifically states that 22 Id. at 97. reasonable requests for information and copies of sig- the defense attorney will not be rendering any cover- 23 Form Interrogatory 4.1(e) asks the defendant to dis- nificant documents when necessary to keep the client age advice. “Although counsel may perceive a duty close “the limits of coverage for each type of coverage so informed.” RULES OF PROF’L CONDUCT R. 3-500. limited to defense, unless the insured is so informed or contained in the policy” for any policy that may insure 28 Id. circumstances suggest otherwise, the insured may the defendant from the claim asserted. 29 Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon legitimately believe that appointed counsel will advise 24 For example, an interrogatory might ask, “State the & Gladstone, 107 Cal. App. 4th 54, 74 (2003). on all issues, including coverage.” 4 RONALD E. MALLEN total dollar amount by which the aggregate policy lim- 30 Id. at 75 (quotations omitted). & JEFFREY M. SMITH, LEGAL MALPRACTICE §29.13, at 305 its have been eroded during the policy year applicable 31 Id. at 85. (5th ed. 2000). to this claim.” The extent to which the defendant may 32 Id. at 76-78. 33 See, e.g., Judicial Council Form Interrogatory 4.1. 34 CODE CIV. PROC. §284. 35 Church v. Hofer, Inc., 844 P. 2d 887 (Okl. App. 1992). 36 Severson & Werson v. Bolinger, 235 Cal. App. 3d 1569, 1573 (1991). 37 Walton v. Broglio, 52 Cal. App. 3d 400, 404 (1975). 38 Severson, 235 Cal. App. 3d at 1572. In any dispute over fees, the attorney will have the burden of proving that got the fees were fair and reasonable. Ramirez v. Stur- devant, 21 Cal. 4th 904, 917 (1994). 39 Grossman v. State Bar, 34 Cal. 3d 73, 78 (1983). ebriefs? 40 ALLEN MITH M & S , supra note 15, §29.21, at 365. 41 RULES OF PROF’L CONDUCT R. 3-700(A)(2). 15,000+ Los Angeles County Bar Association 42 In Matter of Doran, 3 Cal. State Bar Ct. Rptr. 871, 877 (1998). members receive free online case summaries 43 In re Jackson, 170 Cal. App. 3d 773, 781 (1985); In re Dahlz, 4 Cal. State Bar Ct. Rptr. 269, 280 (2001). each day—Are you one of them? 44 People v. Prince, 268 Cal. App. 2d 398, 406 (1968). 45 RULES OF PROF’L CONDUCT R. 3-700(A)(1). 46 Kallen v. Delug, 157 Cal. App. 3d 940, 950 (1984). 47 Matter of Miller, 1 Cal. State Bar Ct. Rptr. 131, 135 THE DAILY EBRIEFS—the Association’s online summaries of published (1990). appellate court decisions issued over the previous 24 hours—are 48 CODE CIV. PROC. §284. However, in the Central District of California, the district court’s approval is always re- emailed each weekday afternoon exclusively to Association mem- quired before a substitution is effective. CA C.D. RULE bers. What’s more, the Daily EBriefs, which include links to the full text 2.8.2.1. Counsel should also be aware that under certain circumstances, a client may be legally incapable of of each opinion (posted on the Internet as a PDF file), are FREE! acting in pro per. See, e.g., Torres v. Friedman, 169 Cal. App. 3d 880, 887-88 (1985) (guardian ad litem for a minor could not substitute into the action in pro per). Do we have your current email 49 Hock v. Superior Court, 221 Cal. App. 3d 670 (1990) address? To receive the Daily (invalidating local court rule requiring leave of court for EBriefs, Association members substitution and/or withdrawal of counsel occurring after trial setting conference as being irreconcilable can send their name and cur- with CODE CIV. PROC. §284). 50 rent email address to ebriefs Mossanen v. Monfared, 77 Cal. App. 4th 1402 (2000). 51 Cassel v. Gregori, 28 Cal. App. 2d Supp. 769, 771 @lacba.org or call the LACBA (1937). Member Service Department 52 People v. Prince, 268 Cal. App. 2d 398, 406 (1968). 53 California State Bar Committee On Professional at 213/896-6560. Responsibility and Conduct, Formal Op. 1981-64 (1981). 54 Smith v. Anderson-Tulley Co., 608 F. Supp. 1143 (S.D. Miss. 1985), aff’d, 846 F. 2d 751 (5th Cir. 1988). 55 Heller v. Alter, 257 N.Y.S. 391 (N.Y. 1932). 56 California State Bar Committee On Professional Responsibility and Conduct, Formal Op. 1981-64 (1981) at 2. 57 Id. get the competitive edge—get ebriefs 58 Id. at 4. At the time, COPRAC was construing then- Rule of Professional Conduct 2-111, the predecessor to LOS ANGELES COUNTY BAR ASSOCIATION current Rule of Professional Conduct 3-700. Rule 2- 111(A)(2), like the current rule, precluded withdrawal unless the attorney took “reasonable steps to avoid dailyebriefs foreseeable prejudice to the rights of his client.…” 59 Id. at 4. 60 Los Angeles County Bar Ass’n, Ethics Op. 371 (1977). 61 Id.

36 LOS ANGELES LAWYER / APRIL 2004 MCLE ARTICLE AND SELF-ASSESSMENT TEST Sponsored by By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To COURTCALL® LLC apply for credit, please follow the instructions on the test answer sheet on page 41. Telephonic Court Appearances

By Brian Panish and Kevin Boyle

MultipleMultipleMultiple MultipleChoice A separate choice of law analysis is required for each legal issue arising in a case

awyers conducting a choice of law analysis address a that should be explored is the applicable statute of limitations. In basic but extremely important question: “What law California, as in most states, statutes of limitations are considered to applies to my case?” In a world in which it is not uncom- be procedural (as opposed to substantive) law, and the general rule mon for matters in litigation to have their tentacles in is that the forum state’s procedural law applies. Accordingly, for a case multiple jurisdictions, understanding the laws of the var- filed in California state court, the applicable California statute of lim- L 1 Lious forums is just the beginning. Mastering the elements required itations will apply, and choice of law analysis is unnecessary. for an effective choice of law analysis (also referred to as a conflict But attorneys must be cognizant of California’s “borrowing of law analysis) is a true test for litigators. statute,”2 which was designed as a vehicle for courts to apply the statute Unlike most other areas of pretrial litigation, a choice of law analy- of limitations of the jurisdiction in which the cause of action arose.3 sis can be more dependent on art than science. Every case contains Specifically, the borrowing statute provides: a unique set of circumstances that make it difficult to find binding When a cause of action has arisen in another state, or in a for- precedent regarding choice of law. California’s conflict of law rules eign country, and by the laws thereof an action thereon cannot require that attorneys and courts examine these circumstances there be maintained against a person by reason of the lapse of through a complicated analytical framework known as the govern- time, an action thereon shall not be maintained against him in mental interest and comparative impairment tests. The creativity of this state, except in favor of one who has been a citizen of this attorneys in constructing arguments about why one jurisdiction’s law should apply over another is crucial and can carry the day, as Brian Panish and Kevin Boyle are plaintiffs’ trial lawyers with Greene, courts want attorneys to provide reasons that courts can state for the Broillet, Panish & Wheeler in Santa Monica. They specialize in catastrophic record when they rule on which jurisdiction’s law should apply. products liability and punitive damages claims as well as business torts. When a case arrives at a lawyer’s office, one of the first questions The authors thank Stuart Fraenkel for his comments and assistance.

LOS ANGELES LAWYER / APRIL 2004 37 state, and who has held the cause of action from the time it ment of each state’s policies. The law ultimately applied will be that accrued.4 of the state whose policies would suffer most were a different state’s In other words, the statute “borrows” the statute of limitations of law applied.15 another jurisdiction that is pertinent to the case, and if the borrowed It cannot be stressed enough that a separate choice of law inquiry statute of limitations would prevent a suit in that jurisdiction, the suit must be made with respect to each issue in a case.16 The term of art cannot be brought in California—even if California’s statute of limi- for this process is “depecage.”17 Attorneys should be careful to com- tations would allow the suit. pare all the applicable laws of competing jurisdictions to determine The borrowing statute generally applies only in cases brought by if one of the jurisdictions has law that may be advantageous to any non-California plaintiffs.5 Also, the borrowing statute specifically part of the client’s case. Moreover, if a court applies the law of a juris- addresses cases barred by a “lapse of time” but does not use the words diction to one aspect of the case, that does not mean that the court “statute of limitations.” It is unclear whether the borrowing statute bor- will apply that jurisdiction’s law to all aspects of the case. For exam- rows all statutes concerning the lapse of time, such as statutes of ple, a court may conclude that the law of the plaintiff’s domicile repose, in addition to statutes of limitation.6 applies to damages but that the law of the defendant’s domicile Unlike statutes of limitation, statutes of repose are generally con- applies to liability. sidered to be substantive in nature, most likely because the lapse of time at issue in a statute of repose has nothing to do with a potential True Conflict and Governmental Interest plaintiff’s failure to timely file a suit after a cause of action arose. In conducting a California choice of law analysis, the first question for Statutes of repose are concerned with what happened before, not after, counsel to consider–a seemingly obvious one–is whether the law of the emergence of the cause of action. Accordingly, the determination the foreign jurisdiction actually is in conflict with California law.18 Ver y of whether a foreign jurisdiction’s statute of repose is applicable to a little case law explores how different the laws must be from one case should be determined through a choice of law analysis just like another to result in what courts term a true conflict.19 A results-ori- that of any other substantive law. ented analysis seems to be the basis for determining whether laws are However, a survey of California law reveals one published case, in conflict; that is, a court will find that laws conflict if their applica- Geist v. Sequoia Ventures, Inc., in which the borrowing statute was used tions could lead to differing results. In most cases in which a party to borrow a statute of repose.7 This case was most likely decided incor- seeks the application of a law of a particular jurisdiction, the existence rectly. First, every other published California case that mentions the of the conflict is seemingly obvious, because attorneys would not seek borrowing statute does so in the context of a statute of limitations. the application of a law that would not help their case. For example, Second, the issue of whether a borrowing statute can borrow sub- if one jurisdiction has a damages cap and another does not, the laws stantive law was not specifically addressed in Geist.8 Finally, case of the two jurisdictions probably are in conflict, and a defendant law and commentators generally take the position that the intent of would likely urge the court to apply the law of the jurisdiction sup- the borrowing statute was to borrow procedural statutes of limitations, porting caps. not substantive law, because a determination of which substantive law In examining whether laws conflict, foreign law may be pleaded should be applied in a case is governed by a choice of law analysis. and proved, but it need not be. The California Evidence Code provides Indeed, the commentators in the Restatement (Second) of Conflict of that trial courts may take judicial notice of the decisional, statutory, Laws contend that borrowing statutes should be repealed in their and constitutional law of any state or foreign nation.20 The code also entirety and that choice of law analysis should be used to determine provides for compulsory judicial notice on the request of a party, pro- the applicable statute of limitations.9 But for now, the Geist opinion vided that the requesting party gives each adverse party sufficient time remains on the books, and plaintiffs and defense counsel must be to oppose the request and furnishes the court with sufficient infor- aware that a California court potentially could borrow another state’s mation to enable it to understand the foreign law.21 As a practical mat- statute of repose and bar an action. ter, attorneys seeking the application of foreign law should brief that California’s borrowing statute also must be considered when par- law thoroughly when requesting its application and should request ties are in federal court on diversity grounds. A federal court that has judicial notice of that law. Attorneys opposing the application of for- jurisdiction as a result of diversity will apply 1) the statute of limita- eign law should make sure that they are given sufficient time to brief tions of the forum in which the court sits,10 and 2) the choice of law their opposition to the application of the foreign law by using a con- rules of the state in which the court sits.11 Federal courts in California flict of law analysis and to contradict the other side’s characterization hearing diversity cases based on causes of action that arose outside of the foreign law, if necessary. To accomplish these tasks, attorneys of California may apply California’s borrowing statute and, following generally seek expert assistance in the foreign law at issue. Geist, apply another jurisdiction’s statute of repose. If there is a true conflict, the second question that must be In California, a choice of law analysis will determine the substan- answered is whether both jurisdictions have any significant interests tive law applicable to a case (with the exception of substantive “lapse in having their respective law applied. The case law refers to this of time” law that may be covered by California’s borrowing statute). inquiry as the governmental interest test.22 Some California courts This is true whether parties are in state court or in federal court as have merged the first and second questions; in analyzing whether a result of diversity—and the federal court will apply California’s there is a true conflict, the courts look to whether both jurisdictions choice of law rules.12 have a legitimate governmental interest in the application of their law.23 A California state court will apply California law unless a party Accordingly, if the interests of the foreign jurisdiction will not be invokes the law of a foreign jurisdiction.13 Thus, attorneys convinced significantly furthered by the court’s application of that jurisdiction’s that the law of another jurisdiction should apply in their case in a law, the court may conclude that there is a false conflict and apply California court must bring the choice of law issue to the court’s atten- California law.24 tion. Under the choice of law approach in California, California law will Either approach leads to the same result. The basic question is be applied unless the foreign law conflicts with California law and both whether the jurisdictions have a significant governmental interest in California and the foreign jurisdiction have significant interests in hav- having their law applied. If a foreign jurisdiction does not have an inter- ing their respective law applied.14 If there are significant interests and est in having its law apply, then the law of the forum will apply.25 those interests conflict, the court must assess the comparative impair- Lawyers should have a solid understanding of their cases and

38 LOS ANGELES LAWYER / APRIL 2004 COURTCALL® LLC Telephonic Court Appearances Lawyers can stop spending their time and their clients’ money traveling to Court by making a CourtCall Appearance.

TOLL FREE 888/882-6878 TEL 310/342-0888 FAX 310/743-1850

COURTCALL APPEARANCES ARE AVAILABLE IN THESE JURISDICTIONS:

CALIFORNIA Riverside Superior Court Nineteenth Judicial Circuit 286th District Court (Levelland) Court of Appeal Banning Twentieth Judicial Circuit 325th District Court (Ft. Worth) Sixth Appellate District Blythe (Naples) 360th District Court (Ft. Worth) Alpine County Superior Court Hemet (Ft. Myers) 400th District Court Amador County Consolidated Courts Indio County Courts Bakersfield Municipal Court Lake Elsinore GEORGIA Hildalgo-#1 Butte County Consolidated Courts Palm Springs Atlanta Superior Court Midland Calaveras Superior Court Riverside INDIANA San Angelo Colusa Superior Court Southwest Marion County Superior Court Tom Green Contra Costa County Superior Court Temecula (Indianapolis) UTAH Martinez Sacramento Superior Court LOUISIANA 4th District Court (Provo) San Benito Del Norte Superior Court* Fourth Judicial Dist. (Monroe) San Bernardino Superior Court WASHINGTON Eleventh Judicial Dist. (Mansfield) El Dorado County Superior Court Barstow Adams County Superior Court Twenty-Sixth Judicial Dist. (Benton, Cameron Park Big Bear Spokane County Superior Court Minden) South Lake Tahoe Central WEST VIRGINIA Placerville Joshua Tree MARYLAND Fourth Judicial Circuit Fresno Superior Court Needles Glenn County Superior Court Second Circuit Court (Centreville) UNITED STATES DISTRICT Rancho Cucamonga Talbot County Circuit Court Humboldt Superior Court Victorville COURT Imperial County Superior Court San Diego Superior Court MICHIGAN Eastern District of California Kern County Superior Court Central 36th District Court (Detroit)* Fresno Kings County Superior Court East County Washtenaw County Trial Court Sacramento Lassen County Superior Court North County 18th Judicial Circuit Northern District of California Los Angeles Superior Court South County MISSISSIPPI San Jose Beverly Hills Santa Clara San Francisco Superior Court 4th Circuit Court Burbank San Joaquin County Superior Southern District of California Central Court NEW JERSEY San Diego Central Civil West San Luis Obispo County Superior Bergen UNITED STATES Chatsworth Court Bridgeton BANKRUPTCY COURT Compton Burlington Grover Beach CALIFORNIA Culver City Paso Robles Cumberland Glendale Essex Central District of California San Mateo County Superior Court Los Angeles Long Beach Santa Barbara Superior Court Gloucester Norwalk Hudson Riverside Central Santa Ana Palmdale/Lancaster Lompoc Hunterdon Pasadena Mercer Woodland Hills Santa Maria Eastern District of California Pomona Santa Cruz Superior Court Middlesex Redondo Beach Monmouth Fresno/Bakersfield Santa Cruz Modesto Rio Hondo (El Monte) Watsonville Morris/Sussex San Fernando Passaic Sacramento Shasta County Superior Court Northern District of California San Pedro Sierra County Superior Court Salem Santa Anita Oakland Solano Superior Court Somerset San Francisco Santa Monica Sonoma Superior Court Warren Torrance San Jose Stanislaus County Superior Court NEW MEXICO Van Nuys Tehama Superior Court HAWAII West Los Angeles Dona Ana County (Las Cruces) Trinity County Superior Court First Judicial Circuit (Santa Fe) ILLINOIS Madera Superior Court Tulare County Superior Court Northern District of Illinois Bass Lake Tuolumne Superior Court NEW YORK Chicago Marin County Superior Court Yuba County Superior Court New York Supreme Court Mendocino County Coordinated New York City NEW JERSEY FLORIDA USDC-New Jersey Courts TEXAS Merced Superior Court Fifth Judicial Circuit (Ocala) Newark 22nd District Court (San Marcos) Mono County Superior Court First Judicial Circuit (Defuniak Springs, NEW YORK Okaloosa, Santa Rosa Beach) 33rd District Court (Burnet) Napa Superior Court 75th District Court (Liberty) Southern District of New York Twelfth Judicial Circuit North Kern Municipal Court 105th District Court (Corpus Christi) Thirteenth Judicial Circuit (Tampa) OREGON Orange County Superior Court 133rd District Court (Houston) Fifteenth Judicial Circuit (W. Palm District of Oregon Placer Superior Court 219th District Court (McKinney) Beach) Portland Plumas Superior Court 238th District Court (Midland) When a true conflict is found to exist, the comparative impairment test comes into play. This test requires the court to determine which jurisdiction’s policies would suffer most if the other jurisdiction’s laws were applied. The test is not supposed to involve a determination of which law embodies the better social policy with regard to a particular issue.

how the competing laws would affect each aspect of a case. Although dent that seriously injured Bernhard, another California resident. articulating governmental interests is usually possible on both sides Bernhard sued Harrah’s Club in California under the dram shop rule. of an issue, it is not an easy process—but it is generally worthwhile. Harrah’s Club demurred, relying on Nevada case law rejecting the Indeed, a court could rule for a party’s choice of law on the grounds dram shop rule. The California Supreme Court held that both states that the other side did not present a reason why their desired juris- clearly had a governmental interest in having their own law apply: diction had an interest in its law being the applicable law. Attorneys California had an interest in seeing its resident compensated, and need to do all they can to make the court’s job in this area an effort- Nevada had an interest in protecting its resident tavern keeper from less one by fully setting forth the analysis for the court to use in reach- liability.31 ing its decision. Because there was a true conflict, the court proceeded to apply the The case of Hurtado v. Superior Court is an excellent example of comparative impairment test to the case. The court found that applying the true conflict and governmental interest analyses in con- California’s interest in protecting its residents would be significantly cert.26 Hurtado involved a wrongful death action brought in California impaired if state policy regarding the excessive selling of alcoholic bev- by the Mexican heirs of a Mexican national who died in California as erages were not extended to out-of-state taverns that sell alcoholic bev- the result of the negligence of a California driver. Defendant Hurtado erages to California residents who can be reasonably expected to argued that Mexico’s strict damages limitation should apply to the case return to California after consuming those beverages.32 The court also because the decedent and the plaintiffs were Mexican residents. The found that Nevada’s interest in protecting tavern owners from civil lia- court disagreed and ruled that California damages law applied to the bility would not be significantly impaired, because Nevada already had case. The court reasoned that Mexico’s interest in limiting damages a policy of establishing criminal liability for tavern owners who con- is to protect its residents from excessive financial burdens. Since the tinued to serve alcohol to intoxicated guests, and the extension of the defendants were not Mexican residents, Mexico had no interest in California policy to out-of-state taverns only applied to those taverns denying full recovery to its plaintiff residents injured by non-Mexican that actively sought the business of California residents.33 Accordingly, defendants.27 California has a decided interest in furthering its deter- the court ruled that California’s dram shop rule applied. rent policy of full compensation by applying its own laws to California The California Supreme Court further expounded on the compar- defendants.28 Accordingly, there was a false conflict, and the court ative impairment test in Offshore Rental Company v. Continental Oil applied California law. Company.34 In that case, a California corporation brought a negligence action in California against a Louisiana corporation for damages result- Comparative Impairment ing from an injury sustained by the California corporation’s vice pres- When a true conflict is found to exist, the third question, in the form ident while he was on business at the Louisiana premises of the of the comparative impairment test, comes into play. This test requires Louisiana corporation. Louisiana law did not allow a corporate plaintiff the court to determine which jurisdiction’s policies would suffer to state a cause of action for the injury of its employees. An old California most if the other jurisdiction’s laws were applied. The test is not sup- master-servant statute, however, appeared to grant a cause of action posed to involve a determination of which law embodies the better against a third party for loss caused by an injury to a key employee. social policy with regard to a particular issue; instead, it addresses the After determining that both states had an interest in applying relative commitment of the respective states to the laws involved.29 their laws and that, accordingly, a true conflict existed, the court An instructive example of a case involving a true conflict and the turned to the comparative impairment analysis. The court stated the comparative impairment test is Bernhard v. Harrah’s Club,30 a case comparative interest test succinctly: “In sum, the comparative impair- involving California’s dram shop rule that was eventually superceded ment approach to the resolution of true conflicts attempts to determine by statute. Defendant Harrah’s was a Nevada corporation that adver- the relative commitment of the respective states to the laws involved.”35 tised its Nevada casino in California. Mr. and Mrs. M were California The court articulated other, more specific factors to consider, such citizens who drove to the casino and were served copious amounts as 1) the history and current status of the laws at issue, and 2) the func- of alcohol, beyond the point of their obvious intoxication. On their tion and purpose of the laws. drive home from Nevada, Mr. and Mrs. M were involved in a car acci- Regarding the first factor, the court noted that if one of the com-

40 LOS ANGELES LAWYER / APRIL 2004 MCLE Answer Sheet #125 MULTIPLE CHOICE This Los Angeles Lawyer MCLE True. Sponsored by COURTCALL LLC self-study test is sponsored by False. 10. The comparative impairment test is concerned Name with determining which law embodies the better ® Law Firm/Organization COURTCALL LLC social policy, not with the relative commitment of Telephonic Court Appearances the respective states to the laws involved. True. Address False. City 11. Whether one of the competing laws is “archaic and isolated” in comparison to the laws of the rest State/Zip MCLE Test of the states may not be considered when con- E-mail ducting the comparative impairment test. Phone True. No. 125 False. State Bar # 12. In contracts cases involving contractual choice Instructions for Obtaining MCLE Credits The Los Angeles County Bar Association of law provisions, California courts look to the certifies that this activity has been Restatement (Second) of Conflict of Laws. 1. Study the MCLE article in this issue. approved for Minimum Continuing Legal True. 2. Answer the test questions opposite by Education credit by the State Bar of False. California in the amount of 1 hour. marking the appropriate boxes below. Each 13. The Restatement (Second) of Conflict of Laws question has only one answer. Photocopies of strongly favors enforcement of contractual choice this answer sheet may be submitted; however, 1. California’s borrowing statute generally is of law provisions. this form should not be enlarged or reduced. True. applicable only in cases brought by non-California 3. Mail the answer sheet and the $15 testing fee plaintiffs. False. ($20 for non-LACBA members) to: True. 14. In determining the enforceability of a con- Los Angeles Lawyer False. tractual choice of law provision, the court looks to 1) whether the chosen state has a substantial MCLE Test 2. California’s borrowing statute only has been P.O. Box 55020 relationship to the parties or their transaction, or applied to borrow statutes of limitations from Los Angeles, CA 90055 other jurisdictions and has never been applied to 2) whether there is any other reasonable basis for borrow a statute of repose. the parties’ choice of law. Make checks payable to Los Angeles Lawyer. True. True. False. 4. Within six weeks, Los Angeles Lawyer will False. return your test with the correct answers, a 15. If either the substantial relationship or rea- 3. A federal court that has diversity jurisdiction will rationale for the correct answers, and a apply the statute of limitations of the forum in sonable basis analyses are applicable to the con- certificate verifying the MCLE credit you earned which it sits. tractual choice of law provision, the court must through this self-assessment activity. True. determine whether the law of the chosen state is contrary to a fundamental policy of California. 5. For future reference, please retain the MCLE False. test materials returned to you. 4. A federal court with diversity jurisdiction will True. apply the choice of law rules of the state in which False. Answers it sits. 16. If a California court ultimately determines that a foreign jurisdiction’s law will apply, it Mark your answers to the test by checking the True. appropriate boxes below. Each question has becomes the province of the California court to False. only one answer. 5. A federal court in California with federal ques- determine and apply that law. True. tion jurisdiction will apply California choice of 1. ■ True ■ False law rules. False. 2. ■ True ■ False True. 17. When a California court applies the law of False. a foreign jurisdiction, the general rule is that the 3. ■ True ■ False 6. A California state court will apply California law foreign court’s statutory construction will not be 4. ■ True ■ False unless a party invokes the law of a foreign juris- followed. 5. ■ True ■ False diction. True. ■ ■ True. False. 6. True False False. 18. A California court applying a foreign jurisdic- 7. ■ True ■ False tion’s law must respect the decision of a foreign 7. California’s Evidence Code provides that trial 8. ■ True ■ False courts may take judicial notice of the decisional, intermediary appellate court if it is the highest ■ ■ statutory, and constitutional law of any state or court in that jurisdiction to have ruled on the 9. True False foreign nation. issue. 10. ■ True ■ False True. True. 11. ■ True ■ False False. False. 12. ■ True ■ False 8. If the interests of a foreign jurisdiction will not 19. A California court can never construe the be significantly furthered by applying that juris- meaning of a statute of a foreign jurisdiction 13. ■ True ■ False diction’s law, the court in California may con- before the courts in the foreign jurisdiction have 14. ■ True ■ False clude that there is a false conflict and apply done so. 15. ■ True ■ False California law. True. ■ ■ True. False. 16. True False False. 20. It is improper for a California court to deter- 17. ■ True ■ False mine the law of another state based on hearing 9. The question of whether two jurisdictions have 18. ■ True ■ False any significant interests in having their respective expert testimony. ■ ■ law applied has been referred to as the govern- True. 19. True False mental interest test. False. 20. ■ True ■ False

LOS ANGELES LAWYER / APRIL 2004 41 peting laws was “archaic and isolated” in com- absence of the choice of law provision.38 cmt. b (2002). 10 Forsyth v. Cessna Aircraft, 520 F. 2d 608, 613 (9th Cir. parison to the laws of the rest of the states, it The Nedlloyd Lines court further distilled 1975); RESTATEMENT (SECOND) OF CONFLICT OF LAWS may need to yield to a more “prevalent and these principles: A court must determine §142. progressive” law.36 Similarly, the law may be “either (1) whether the chosen state has a sub- 11 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 considered archaic and isolated when com- stantial relationship to the parties or their (1941). 12 pared to the other laws of the state in which transaction, or (2) whether there is any other Id. If a case is in federal court in California as a result of federal question jurisdiction, federal common law it was enacted. Indeed, the decisional law of reasonable basis for the parties’ choice of choice of law rules apply. Chan v. Society Expeditions, 39 the state may indicate that the law is out of law.” If neither of these two tests is met, 123 F. 3d 1287, 1297 (9th Cir. 1997). Federal common favor, even though it is still in force. The that is the end of the inquiry. But if either test law applies the conflict of laws principles that are set court noted that the majority of common law is met, the court must determine whether forth in the Restatement (Second) of Conflict of Laws. states that had addressed the issue in the the chosen state’s law is contrary to a funda- Chan, 123 F. 3d 1287. 13 case do not sanction actions by corporations mental policy of California (or the state whose Hurtado v. Superior Court, 11 Cal. 3d 574, 581 (1974). 14 Sommer v. Graber, 40 Cal. App. 4th 1455 (1995). for harm to business employees, noting the law would have applied absent the provi- 15 Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d 40 radical changes in the master-servant rela- sion). If no fundamental policy is threat- 157 (1978) (en banc). tionship since medieval times. Also, the court ened, the choice of law provision will be 16 See S.A. Empresa v. Boeing Co., 641 F. 2d 746, 749- noted that despite the existence of the Calif- enforced. If, on the other hand, enforcing the 50 (9th Cir. 1981) and Application Group, Inc. v. Hunter ornia master-servant statute, no California provision would be inconsistent with a fun- Group, Inc., 61 Cal. App. 4th 881, 896-97 (1998). These two cases provide a cohesive analysis of California court had squarely held that the cause of damental policy of, say, California, the court choice of law principles and procedures. action stemming from the statute still exists, must determine whether California’s inter- 17 Commentators have used the French word depecage and in recent years no California court had est in its fundamental policy is “materially for the idea that a separate choice of law analysis even considered the issue. greater” than the chosen state’s interest in needs to be applied to each legal issue arising in a As for the second factor, the court noted having its law applied.41 case. See, e.g., R.A. LEFLAR, AMERICAN CONFLICTS OF LAW (3d ed. 1977); Reese, Depecage: A Common that the purpose of Louisiana’s law was to If a California court ultimately decides Phenomenon in Choice of Law, 73 COLUM. L. REV. 58 promote freedom of enterprise within that a foreign jurisdiction’s law will apply, (1973). Depecage can lead to different law being Louisiana’s borders, and not applying the the California court will determine and apply applied to the same aspects of nearly identical cases more modern Louisiana law for an accident that law. The general rule is that the forum arising out of the same incident. See In re Aircrash that occurred in Louisiana would undercut court will follow the foreign court’s statu- Disaster Near Roselawn, Ind. on Oct. 31, 1994, 948 F. Supp. 747 (N.D. Ill. 1996). that purpose. The court also observed that a tory construction.42 Also, courts and parties 18 Sommer v. Graber, 40 Cal. App. 4th 1455 (1995). law may be less comparatively pertinent if must respect the decision of a foreign inter- 19 See Hurtado v. Superior Court, 11 Cal. 3d 574 (1974). the purpose and policy of the law is no longer mediary appellate court if it is the highest 20 EVID. CODE §452(a). of “grave concern” to the state, or if the pol- court in that jurisdiction to have ruled on 21 EVID. CODE §453. icy underlying the law may easily be served the issue.43 If the courts of a foreign juris- 22 Sommer, 40 Cal. App. 4th 1455. 23 by more modern means other than enforce- diction have not construed a statute, the Cal- American Bank of Commerce v. Corondoni, 169 Cal. App. 3d 368 (1985). ment of the law itself. ifornia court will need to determine how the 24 Id. In the end, the court essentially deter- highest court in the foreign jurisdiction would 25 Havlicek v. Coast-to-Coast Analytical Servs., 39 Cal. mined that Louisiana had a stronger com- have interpreted the law if that court had App. 4th 1844 (1995). mitment to its more modern law than Calif- ruled on the law under the same facts.44 It is 26 Hurtado v. Superior Court, 11 Cal. 3d 574 (1974). 27 ornia had demonstrated to its more archaic improper for a California court to determine Id. at 581. 28 Id. at 584. law. Accordingly, the court held that Louisiana the law of another state based on hearing 29 Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d 45 law should apply. expert testimony. 157, 165 (1978) (en banc). Choice of law issues are complex and very 30 Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976) Choice of Law in Contracts important to the outcome of a case. The key (superceded by statute). The legislature significantly Cases is to recognize potential choice of law issues altered California‘s dram shop rule so that tavern owners are no longer strictly liable for injuries caused by California’s choice of law rules apply whether early in the litigation process and to develop their intoxicated customers. Thus the liability aspect of an action lies in contract or in tort. But an a strategy for determining the best time in the the Bernhard case is no longer good law, but Bernhard important exception applies in cases involving process to raise the issues and marshalling remains instructive on the application of California contracts with choice of law provisions. In convincing arguments to win judicial support choice of law analysis. Nedlloyd Lines B.V. v. Superior Court,37 the for the most favorable law to apply. ■ 31 Bernhard, 16 Cal. 3d at 318-19. 32 California Supreme Court officially adopted Id. at 323. 33 Id. at 323-24. 1 the principles set forth in the Restatement Zellmer v. Acme Brewing Co., 184 F. 2d 940, 942 (9th 34 Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d (Second) of Conflict of Laws, which strongly Cir. 1950). 157, 165-67 (1978) (en banc). 2 favors enforcement of choice of law provi- CODE CIV. PROC. §361. 35 Id. 3 Delfosse v. C.A.C.I., Inc.-Federal, 218 Cal. App. 3d 683, 36 sions. Specifically, when a contract contains Id. at 166. 691-92 (1990). 37 Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th a choice of law provision, California courts will 4 CODE CIV. PROC. §361. 459, 465 (1992). apply the substantive law of the state desig- 5 Grant v. McAulliffe, 41 Cal. 2d 859, 865 (1953). 38 RESTATEMENT (SECOND) OF CONFLICT OF LAWS §187(2). 6 nated by the contract unless the state has no An example of a statute of repose is a bar on a prod- 39 Nedlloyd Lines, 3 Cal. 4th at 466. substantial relationship to the parties or the ucts liability suit when the product at issue was pur- 40 Id. transaction at issue, or the application of the chased a specified number of years before the suit was 41 Id. filed. See, e.g., GA. CODE ANN. §51-1-11. 42 McManus v. Red Salmon Canning Co., 37 Cal. App. chosen state’s law would be contrary to a fun- 7 Giest v. Sequoia Ventures, Inc., 83 Cal. App. 4th 300 133 (1918). damental policy of a state 1) that has a mate- (2000). 43 Fritz v. Metropolitan Life Ins. Co., 50 Cal. App. 2d 570 8 rially greater interest than the chosen state in See People v. Banks, 6 Cal. 4th 926, 945 (1993) (“[A]n (1942). the determination of the particular issue and opinion is not authority for a proposition not there con- 44 Id. sidered.”). 45 2) whose law would be applicable in the EVID. CODE §§311, 106. 9 RESTATEMENT (SECOND) OF CONFLICT OF LAWS §142,

42 LOS ANGELES LAWYER / APRIL 2004

Understanding what constitutes “reasonable particularity” can be the decisive element in trade secret litigation SecretWeapon

By Brent Caslin FAIRNESS DEMANDS that those who requests a specification at the right moment, accuse others of theft describe the allegedly presses the request until true particularity is stolen property, especially before being provided, and uses the specification properly allowed to rummage through the belong- will gain some control over the subject of the ings of the accused. This principle applies dispute. The defendant who does not will well to trade secret disputes. While the have little or no control. description of a commercial trade secret is When should a defendant request a trade usually more complicated than that, say, of secret specification? In California state court, a stolen bicycle, written specifications of the Code of Civil Procedure largely answers allegedly misappropriated trade secrets are this question with the requirement that every now required at the outset of most actions plaintiff identify its allegedly misappropriated involving trade secret claims. trade secret “before commencing discovery Obtaining a full and complete trade secret relating to the trade secret.”1 Consequently, specification sometimes entails a great deal at the beginning of most cases, when the dili- of effort at the beginning of a dispute. Quick gent plaintiff follows a complaint with dis- study of the technology at issue is ordinarily covery requests, the defendant should imme- necessary. Experts may be needed immedi- diately request disclosure of the alleged trade ately. And a motion requesting a specifica- secret’s specifics.2 If the plaintiff refuses to tion, or a more detailed specification, may provide the identification required by Code of be the only way to force disclosure of key Civil Procedure Section 2019(d), the defen- details of the information claimed as the trade dant can either move for a protective order secret. Nevertheless, these efforts are worth preventing discovery by the plaintiff until the their cost. The trade secret defendant who disclosure is prepared, or simply object and

Brent Caslin is a senior associate in the Los Angeles office of Kirkland & Ellis LLP, where he focuses on international and domestic commercial disputes. KEN SUSYNSKI

44 LOS ANGELES LAWYER / APRIL 2004 wait to defend a motion to compel. Either covery is requested in connection with an ing the specification compulsory to every motion should be won easily against those application for a temporary restraining order claim.9 In 1999, a Massachusetts court wrote, who altogether refuse to produce a trade or preliminary injunction, Section 2019(d) “A plaintiff has no cognizable trade secret secret specification. In most cases, however, must be raised immediately. Better prepared claim until it has adequately identified the the plaintiff will recognize its obligation to defendants will ask the plaintiff for a reason- specific trade secrets that are at issue.”10 provide a Section 2019(d) disclosure and ably particular trade secret specification Requesting a trade secret specification at agree to prepare one. After the specification before the first court appearance, even if the the beginning of every case, including those is produced, the wrangling can begin over its pressing schedule permits the request just involving provisional remedies, is a trend that particulars. hours before an expedited hearing. If the is gathering steam around the country. In Two circumstances merit special atten- request is made but no specification provided, the past year, several courts in an assortment tion as defendants consider when they should the failure can be placed with the plaintiff. The of states have denied preliminary injunctions, request a trade secret definition: prefiling plaintiff chose the fast pace of the litigation or reversed their entry, when plaintiffs failed settlement discussions and provisional rem- when it requested a provisional remedy. It to adequately define the allegedly misappro- edy situations. As to the first, settlement dis- must know the details of the alleged trade priated trade secret.11 Defendants should thus cussions clearly do not always precede the fil- secret, and it must know that the law requires demand a specification immediately and ing of formal misappropriation claims. But a reasonably particular specification. Indeed, request that all provisional relief and discov- when a plaintiff asks to discuss its claim the absence of a proper specification may be ery be denied until the plaintiff adequately before filing a complaint, the effort should not enough for the court to deny the application specifies its alleged trade secret. be ignored. Not only might settlement dis- for a temporary restraining order or prelim- cussions be a good alternative for the defen- inary injunction.3 On the other hand, if the The Appropriate Trade Secret dant not totally free from guilt, or the per- plaintiff provides a specification before a hear- Definition ception of guilt, but they also may give the ing on a provisional remedy, any inadequacies Detailing the particulars of an allegedly mis- defendant an opportunity to figure out exactly can be brought to the court’s attention at the appropriated trade secret is sometimes sim- what it has been accused of misappropriating. hearing.4 ple. If, for example, a company that sells cook- In fact, much can be gained by requesting a A reasonably particular trade secret spec- ies alleges that another corporation stole its specific identification of the purported trade ification should also be requested if a plaintiff secret recipe for chocolate chip cookies, the secret at the beginning or in advance of a requests a provisional remedy but no imme- company might simply provide the recipe as prefiling settlement talk. It is difficult, and diate discovery. Although the language of its trade secret disclosure—1/2 cup unsalted perhaps impossible, for a defendant to eval- Section 2019(d) does not require a trade butter, 1 cup brown sugar, 1 egg, 2 teaspoons uate a trade secret claim and determine secret specification outside the discovery vanilla, and so forth. Of course, cases as whether settlement discussions are worth- context, courts rule almost uniformly that straightforward as this are few and far while without knowing exactly what the plain- plaintiffs must show the existence of a specific between. In the many cases in which the tiff thinks was misappropriated. trade secret at the outset of litigation. In FSI alleged trade secret is not as easy to define as This is perhaps truer today than at any International v. Shumway,5 for example, the a cookie recipe, defendants should seek to cal- time in the past because the difficulty of ana- plaintiff, FSI, a supplier of equipment used to ibrate the disclosure to the level of specificity lyzing trade secret claims has increased with manufacture microelectronics, sought a tem- that will prevent the plaintiff from later chang- the advance of technology. Thirty years ago, porary restraining order to prevent one of ing the alleged trade secret in order to navi- for example, it may have meant something for its account managers from working for a com- gate through discovery disputes and other a plaintiff to state that its allegedly misap- petitor. FSI alleged the account manager had problems that might harm the plaintiff’s case. propriated trade secret was the process, “numerous trade secrets and other confi- To determine what level of specificity is unknown in every way to all others, by which dential and proprietary information as a nec- required in more complex cases, the natural a hand-held camera could take pictures with- essary component of his sales position,” starting point is the language of California’s out film and store the pictures on an internal including “valuable customer, pricing, mar- statute. Section 2019(d) requires plaintiffs to data chip. Today, however, such a broad state- keting, and product formula and manufac- “identify the trade secret with reasonable par- ment means almost nothing to those in the turing information that is not generally known ticularity.” The “reasonable particularity” stan- electronics industry. Indeed, every manu- to FSI’s competitors.” The district court did dard means different things to different peo- facturer has or could have the technology to not rely on any statute when it concluded ple, and there is not much information create and market digital cameras, and most that the order should be denied because FSI’s regarding its precise meaning for those who of the specifics of the technology have been listing of broad information categories was not drafted Section 2019(d). Dictionary defini- revealed in patent applications across the an appropriate trade secret disclosure: “Given tions can help to illuminate the meaning of the globe. If a trade secret exists in 2004 with FSI’s lack of specificity in identifying what is words chosen by the drafters of the statute. respect to digital camera technology, it prob- a trade secret, it is impossible for the Court Merriam-Webster defines “particularity” as “1 ably relates to a specific manufacturing to fashion a meaningful injunction that would a: a minute detail…b: an individual charac- process or a previously unknown and not overly restrict legitimate competition.”6 teristic…2: the quality or state of being par- unpatented improvement on existing tech- Other courts in California, including state ticular as distinguished from universal…3 a: nology. The details of that process or improve- and federal courts, also have required rea- attentiveness to detail….”12 Similarly, Oxford ment would be at the heart of any trade secret sonably particular trade secret specifications defines “particular” as “relating to or consid- claim. They should also be at the center of any outside the realm of discovery,7 including in ered as one thing or person as distinct from settlement discussion. situations involving provisional remedies.8 others.”13 Both definitions are in line with the When considering whether to request a Some courts in California and elsewhere have primary purpose behind Section 2019(d) and trade secret definition in response to motions gone so far as to find that a specifically iden- the goal of defendants who rely on the for provisional remedies, counsel should tified trade secret is a necessary piece of a statute—to obtain enough detail about the know that in California, when expedited dis- trade secret cause of action, effectively mak- plaintiff’s allegedly secret information that

46 LOS ANGELES LAWYER / APRIL 2004 the trade secret definition can be distin- ification. Not doing so may tie the hands of the have the expertise to evaluate the projector guished from other similar information and testifying expert while giving the plaintiff and and determine which dimensions and toler- not later transformed to match something its experts room to maneuver. ances were secret.20 In a recent case, IDX the plaintiff finds in the defendant’s files. A leading case, Imax Corporation v. Cin- Systems Corporation v. Epic Systems Cor- Drafting the necessary level of specificity ema Technologies, Inc.,16 offers further instruc- poration, the plaintiff’s explanation of an entire is easier said than done. Plaintiffs may not tion regarding the level of detail necessary for software package as a trade secret was also simply allege that a defendant has misap- an appropriate trade secret definition. In the rejected as overinclusive.21 As in Imax, the propriated trade secrets but provide no infor- case, Imax claimed the precise dimensions IDX court communicated that it is not the mation other than the most basic allegation.14 and tolerances of its rolling loop projector court’s responsibility to dig through a prod- Disclosures that identify the class or type of were misappropriated by Cinema Tech- uct specification and determine exactly what information that makes up the trade secret, nologies. But Imax failed, after four attempts, is and what is not part of the alleged trade secret.22 When preparing a trade secret specification, the simple rule to remember is that indicating an entire process or a product itself is ordinarily not enough for the specification to pass muster with a court.23 Using the Specification The obvious and immediate best use of a trade secret disclosure is investigation of the claim. The defendant should examine the files and memories in every relevant business unit with the specification in hand to determine if a mistake actually was made— or if circumstances exist so that a conclusion can be drawn that a mistake may have been made—in the defendant’s handling of the identified trade secret information. If so, it may be more economical to settle before costly discovery. If not, the disclosure should be used to begin framing a complete story about the alleged trade secret. How was the alleged secret information received from the plaintiff? Was it received at all? What duties of confidentiality were attached to the information? A crucial aspect of some cases is determining what uses and disclosures the plaintiff authorized regarding the secret. The defendant must proceed to a determination of what conduct the plaintiff claims was wrong. Did the alleged use or disclosure actually occur, or is the plaintiff mistaken? but not the information itself, are also to provide a trade secret definition identifying The defendant should investigate how the improper.15 It is not enough, for example, to those precise dimensions and tolerances. The plaintiff’s belief about the alleged use or dis- disclose that the allegedly secret information district court eventually granted summary closure of the secret may be addressed at is a method of producing a particular product. judgment because of Imax’s failures, and the trial. The defendant, and an expert witness if The method itself must be described with Ninth Circuit affirmed.17 The Imax case con- appropriate, must also begin investigating its reasonable particularity. firms that plaintiffs cannot simply claim their files and patent applications, as well as indus- Frequently, it will be necessary to con- trade secret comprises certain types of infor- try journals and all other public sources of tact an expert early in the case to determine mation, such as dimensions, measurements, information, to discern if the alleged secret what degree of specificity might be needed in tolerances, and ingredients. They must iden- really was a secret at the time it was given to the trade secret specification to later defend tify those dimensions, measurements, toler- the defendant. Finally, the defendant should the case effectively. When preparing their ances, or ingredients. As another court wrote, begin planning how to discover the plaintiff’s reports, for example, testifying experts will plaintiffs must provide “specific, concrete efforts to protect the alleged trade secret and likely require sufficient detail regarding the secrets.”18 any unprotected disclosures of the allegedly alleged trade secret to compare it with the In their quest for detail, trade secret defen- secret information. defendant’s own confidential information, as dants should be vigilant of plaintiffs who pro- None of these key considerations in the well as prior art and the library of information vide too much information but no real defense of a trade secret case can be properly generally known to the relevant industry. specifics. The plaintiff in Imax attempted this analyzed without first determining exactly Generally, it is best to determine exactly how approach, stating “every dimension and tol- what information is at issue in the case. much detail will be needed by the expert erance” in its projector was a trade secret.19 Consider the difficulty of defending a patent before the court rules on how much detail the The Ninth Circuit disapproved, concluding it case or a trademark case without reference to plaintiff must provide in its trade secret spec- was unlikely a district court or jury would the patent or the ability to review the details

LOS ANGELES LAWYER / APRIL 2004 47 APRIL 2004 MASTER 3/12/04 11:45 AM Page 48

of the trademark. tion.33 In Combined Metals of Chicago Limited nition of the primary reason for the rule The specification required by Section Partnership v. Airtek, for example, a district requiring trade secret specifications: basic 2019(d) not only relates to discovery but also court wary of the potential for a late amend- fairness. These developments almost cer- usually governs its scope. As the U.S. District ment to a trade secret disclosure warned tainly reflect the practical concerns of courts. Court for the Southern District of California early in the case that no change would be Without a trade secret specification, it is dif- wrote, the trade secret specification require- allowed.34 Remarking that the identity of a ficult to control discovery—and it is nearly ment “assists the court in framing the appro- trade secret had caused “confusion” during impossible to compare similar collections of priate scope of discovery and in determin- summary judgment proceedings in a previous sophisticated information at summary judg- ing whether plaintiff’s discovery requests fall case, the court wrote that it “would not enter- ment or trial without first knowing the within that scope.”24 Many courts outside tain such a dispute at such a late stage in the specifics of the alleged secret at issue. Trade California agree, and they regularly halt dis- proceeding again.” With candid language the secret disclosures provide the specifics and covery until an appropriate trade secret def- court ordered the plaintiff to state its trade thus a baseline against which to judge infor- inition is available and appropriate bounds secret and not modify it: mation allegedly used or disclosed by the can be placed on discovery.25 [The plaintiff] will be held to those defendant. They also give defendants some- Because the information requested in trade secrets, i.e., it will not be per- thing against which they can compare infor- almost every trade secret dispute is itself mitted to change or narrow them as mation in the public domain, information valuable,26 defendants should not be reticent the case progresses.…[The plaintiff] developed on their own, and the public dis- about attempting to place tight restrictions on better put [the defendant] on notice closures of plaintiffs. Without a properly discovery. Limits on discovery are often of such technology now…or forfeit the detailed trade secret specification, the defen- approved, even those that are novel in their right to claim such technology as a dant will have a difficult time making these approach. In Microwave Research Corporation trade secret at a later time in this case.35 comparisons. The trade secret, and thus the v. Sanders Association, for example, a court In 1995 the Central District of California case, could be subject to a plaintiff’s changing required a plaintiff to demonstrate a “sub- expressed similar concerns. The court directions, leaving the defendant little op- stantial factual basis” for the trade secret stopped a plaintiff from switching trade portunity to effectively defend its position. claim before it would allow any discovery secrets in the midst of litigation, writing that into the defendant’s confidential informa- the “plaintiff must be judicially estopped from 1 CODE CIV. PROC. §2019(d). tion.27 Finding no such basis, it denied the arguing, in a desperate attempt to avert sum- 2 The parties might negotiate a protective order regard- plaintiff’s request to take discovery of the mary judgment, that these ‘different’ trade ing confidentiality as they discuss a trade secret specification. Code of Civil Procedure §2019(d) specifically defendant’s confidential files.28 Other courts secrets are really the subject of its claims.”36 refers to the provisions of the Uniform Trade Secrets have limited discovery by requiring plaintiffs Summary judgment is not the only pro- Act regarding the maintenance of confidentiality in to show relevance, based on the trade secret cedure that can be used against plaintiffs trade secret disputes (Civil Code §3426.5). See gener- definition, as well as a necessity for the who refuse to properly identify their alleged ally MELVIN F. JAGER, TRADE SECRETS LAW §5:33 (2003) requested confidential information.29 trade secrets or try to change their trade [hereinafter JAGER]; JAMES F. POOLEY, TRADE SECRETS Perhaps the most important use of the secret specifications late in a case. A motion §11.03 (2003); TRADE SECRETS PRACTICE IN CALIFORNIA §11.28 (2d ed. 2002). trade secret definition arrives near the close to dismiss might be successful if the plaintiff 3 FSI Int’l, Inc. v. Shumway, No. CIV02-402RHKSRN, of discovery, as the parties progress through fails to plead facts identifying the trade secret 2002 WL 334409, at *9 (D. Minn. Feb. 26, 2002); Analog summary judgment proceedings and into or if the plaintiff continually fails to define Devices, Inc. v. Michalski, 579 S.E. 2d 449, 452-54 trial. Plaintiffs frequently face enormous the alleged trade secret.37 Sanctions under (N.C. App. 2003); Southwest Research Inst. v. Keraplast incentives at these junctures to modify, if only Rule 37 of the Federal Rules of Civil Pro- Techs., Ltd., 103 S.W. 3d 478, 482-83 (Tex. App. 2003) (noting “every order granting an injunction must be spe- slightly, the identity of the allegedly misap- cedure were granted in at least one case fol- cific in its terms and describe in reasonable detail the propriated trade secret. Some want the lowing a plaintiff’s repeated failure to abide by act or acts to be restrained” and ruling that the plain- alleged trade secret to more closely match the a court’s order to prepare a proper specifi- tiff failed to specify its alleged trade secret); Motorola, misappropriation theory developed during cation.38 Motions in limine are also an obvious Inc. v. DBTEL Inc., No. 02C3336, 2002 WL 1610982, at the course of the case.30 Others need to avoid tool with which to exclude new theories going *16-*17 (N.D. Ill. July 22, 2002); AMP, Inc. v. Fleischhacker, 823 F. 2d 1199, 1203 (7th Cir. 1987). summary judgment because the defendant into trial, and these motions might be useful 4 Counsel should avoid a situation in which an unhelp- discovered a patent or some other form of in excluding undefined aspects of purported ful trade secret specification is drafted and approved by public information identical to the plaintiff’s trade secrets.39 The Ninth Circuit effectively the court in haste and becomes the definition of the alleged secret, making the alleged secret no did just that in Twin Vision Corporation v. trade secret for the entire case. secret at all.31 Plaintiffs may have good inten- BellSouth Communication Systems, Inc., when 5 FSI Int’l, 2002 WL 334409, at *9. 6 Id. tions—they believe their secret was stolen it refused to examine a district court’s sum- 7 Imax Corp. v. Cinema Techs., Inc., 152 F. 3d 1161, and they do not want their claim to fail mary adjudication of several trade secret 1164-67 (9th Cir. 1998) (affirming summary judgment because the specification varies slightly from claims.40 The appellate court simply ignored of trade secret claim after the plaintiff failed to properly the evidence—but defendants should never- the trade secrets that were not properly identify the trade secret); Whyte v. Schlage Lock Co., theless attempt to prevent last-minute changes defined and only analyzed the merits of a sin- 101 Cal. App. 4th 1443, 1452-56 (2002) (examining to the plaintiff’s trade secret specifications. gle properly defined secret. The logic used by whether the plaintiff sufficiently specified its alleged trade secrets in connection with a request for a TRO and Several have had success in stopping plaintiffs the appeals court seems equally applicable to preliminary injunction); Diodes, Inc. v. Franzen, 260 Cal. from asserting trade secret information that motions in limine before trial. App. 2d 244, 250-53 (1968) (affirming dismissal based is a variation from their original claims.32 The recent success of defense tactics— on the plaintiff’s failure to properly plead the identity of Most of these changes occur during sum- chiefly motions for summary judgment—in its trade secret). 8 mary judgment proceedings, and courts are cases involving allegations of trade secret Whyte, 101 Cal. App. 4th at 1452-56; Cinebase Software, Inc. v. Media Guar. Trust, Inc., No. C98- increasingly concerned about allowing the misappropriation, and courts’ increasing focus 1100FMS, 1998 WL 661465, at *10-*13 (N.D. Cal. Sept. plaintiff to deviate from its original trade on trade secret definitions at provisional rem- 22, 1998) (“Defendants are correct that for the pur- secret specifications at this stage of litiga- edy hearings, may reflect a renewed recog- poses of obtaining a preliminary injunction based on

48 LOS ANGELES LAWYER / APRIL 2004 actual use of a trade secret, plaintiff has failed to ade- A. 2d 30 (Del. Ch. 1985) (specification necessary to set Airlines initially claimed as its trade secret a combina- quately identify what portions of its overall software ground rules for relevancy); Struthers Scientific, 51 tion of five elements in an algorithm used to predict cus- architecture are trade secrets.”). F.R.D. at 154 (“Struthers’ discovery will be limited to tomer demand. After it was revealed that the defendant 9 Canter v. West Publ’g Co., Inc., 31 F. Supp. 2d 1193 those specific trade secrets which it claims were dis- received only four of the five elements, and a motion for (N.D. Cal. 1999) (opinion withdrawn) (granting sum- closed to General Foods.”) Of course, federal courts summary judgment was filed on this basis, American mary judgment partially on ground that the plaintiffs’ have discretion to order the sequence for the taking of claimed the four elements as its secret. The court did “failure to adequately designate their trade secret con- discovery. See FED. R. CIV. P. 26 (d). not allow the change, however, and granted summary stitutes a failure to carry their burden on this necessary 26 A court decision resulting in the disclosure of valuable judgment. Id. at 111-12. See also Thermodyne Food element of their claim”); Cambridge Internet Solutions, confidential information may trigger the taking clause Serv. Prods., Inc. v. McDonald’s Corp., 940 F. Supp. Inc. v. The Avicon Group, No. 99-1841, 1999 Mass. of the U.S. Constitution. See generally James R. McKown, 1300, 1305 n.4 (N.D. Ill. 1996); Stutz Motor Car, 909 F. Super. LEXIS 387, at *4 (Mass. Super. Sept. 20, 1999) Taking Property: Constitutional Ramifications of Litigation Supp. at 1360. But see Vacco Indus., Inc. v. Van Den (citing Microwave Research Corp. v. Sanders Assoc., Involving Trade Secrets, 13 REV. LITIG. 253 (1994). Berg, 5 Cal. App. 4th 34, 51 n.16 (1992) (The plaintiff 110 F.R.D. 669, 672 (D. Mass. 1986)). 27 Microwave Research Corp. v. Sanders Assoc., 110 was permitted to amend its trade secret disclosure 10 Cambridge Internet Solutions, 1999 Mass. Super. F.R.D. 669, 672 (D. Mass. 1986). during discovery.). LEXIS 387, at *4. 28 Id.; see also Puritan-Bennett Corp. v. Pruitt, 142 F.R.D. 33 American Airlines, 114 F. 3d at 109-10; Thermodyne, 11 Analog Devices, Inc. v. Michalski, 579 S.E. 2d 449, 452- 306 (S.D. Iowa 1992) (“[T]he court is not yet persuaded 940 F. Supp. at 1305 n.4; Stutz Motor Car, 909 F. Supp. 54 (N.C. App. 2003); Southwest Research Inst. v. that P-B has demonstrated ‘a substantial factual basis at 1360. Keraplast Techs., 103 S.W. 3d 478, 482-83 (Tex. App. for its claim.’”) and MBL Corp. v. Diekman, 445 N.E. 34 Combined Metals of Chicago Ltd. P’ship v. Airtek, 2003); Motorola, Inc. v. DBTEL, No. 02C3336, 2002 WL 2d 418, 426-27 (Ill. App. 1983) (The court refused to Inc., 985 F. Supp. 827, 832 (N.D. Ill. 1997). 1610982, at *16-*17 (N.D. Ill. July 22, 2002); AMP, Inc., allow questioning of the defendant regarding its con- 35 Id. v. Fleischhacker, 823 F. 2d 1199, 1203 (7th Cir. 1987). fidential information until the plaintiff evidenced a pro- 36 Stutz Motor Car, 909 F. Supp. at 1360. 12 Merriam-Webster OnLine Dictionary (2003), avail- tectable trade secret.). 37 Diodes, Inc. v. Franzen, 260 Cal. App. 2d 244, 250-53 able at http://www.m-w.com/home.htm. 29 Duracell, Inc. v. SW Consultants, Inc., 126 F.R.D. 576, (1968). See also Victoria A. Cundiff, How to Identify 13 THE OXFORD DICTIONARY AND THESAURUS 1087 (Am. 579 (N.D. Ga. 1989); A-Mark Auction, Inc. v. American Your Trade Secrets in Litigation, 574 PLI/Pat 557, 572 ed. 1996). Numismatic Assoc., No. 3-99-MC-0014-P, 1999 U.S. (1999) (“[T]o hold off a motion to dismiss, plaintiffs can 14 Universal Analytics, Inc. v. The MacNeal-Schwendler Dist. LEXIS 15192, at *7-*9 (N.D. Tex. Sept. 24, 1999) recite in the complaint that a more detailed specifica- Corp., 707 F. Supp. 1170, 1177-78 (C.D. Cal. 1989); see (Discovery of trade secrets “should be allowed only if tion of the secrets will be provided once the protective generally JAGER, supra note 2, at §5:32. the competitor can demonstrate a true need for the con- order is issued.”). Cundiff’s PLI lesson is an excellent 15 FSI Int’l, Inc. v. Shumway, No CIV02-402RHKSRN, fidential information and can establish the potential resource on trade secret specification requirements. 2002 WL 334409, at *9 (D. Minn. Feb. 26, 2002); Mai Sys. harm is outweighed by the need for discovery.”). 38 Compuware Corp. v. Health Care Serv. Corp., No. Corp. v. Peak Computer, Inc., 991 F. 2d 511, 522-23 30 American Airlines, Inc. v. KLM Royal Dutch Airlines, 01C0873, 2002 WL 485710, at *7-*8 (N.D. Ill. Apr. 1, (9th Cir. 1993) (vacating injunction because the plain- Inc., 114 F. 3d 108, 109-10 (8th Cir. 1997). 2002). tiff stated only that the trade secret was in computer soft- 31 Stutz Motor Car of Am., Inc. v. Reebok Int’l, Ltd., 909 39 See generally JAGER, supra note 2, at §5:32. ware); 3M v. Pribyl, 259 F. 3d 587, 595 n.2 (7th Cir. 2001); F. Supp. 1353, 1360 (C.D. Cal. 1995), aff’d, 113 F. 3d 1258 40 Twin Vision Corp. v. BellSouth Communications Combined Metals of Chicago Ltd. P’ship v. Airtek, Inc., (Fed. Cir. 1997). Sys., Inc., No. 97-55231, 1998 WL 385135, at *2 (9th Cir. 985 F. Supp. 827, 832 (N.D. Ill. 1997) (“[T]he court 32 American Airlines, 114 F. 3d at 109-10. American June 22, 1998). expects an amended counterclaim from Airtek identifying specific, concrete secrets underlying the process of producing the catalytic converters.”); Thermodyne Food Serv. Prods., Inc. v. McDonald’s Corp., 940 F. Supp. 1300, 1305 n.4 (N.D. Ill. 1996) (“The court is mindful that it is not enough for a plaintiff to point to broad areas of technology and assert that something there must have been secret and misappropriated.”) (citing Composite Mariner Propellers, Inc. v. Van Der Woude, 962 F. 2d 1263, 1266 (7th Cir. 1992)). JACK TRIMARCO & ASSOCIATES 16 Imax Corp. v. Cinema Techs., Inc., 152 F. 3d 1161 (9th Cir. 1998). 17 Id. POLYGRAPH/INVESTIGATIONS, INC. 18 Combined Metals of Chicago, 985 F. Supp. at 832. 19 Imax, 152 F. 3d at 1166 (paragraph bb of the trade secret definition). 9454 Wilshire Blvd. 20 Id. at 1167. 21 IDX Systems Corp. v. Epic Sys. Corp., 285 F. 3d 581, Sixth Floor 583 (7th Cir. 2002). Beverly Hills, CA 90212 22 Id. Similarly, courts also do not allow parties to insert catch-all provisions in specifications. Struthers Scientific (310) 247-2637 & Int’l Corp. v. General Foods Corp., 51 F.R.D. 149, 153 (D. Del. 1970). 23 A magistrate recently rejected an attempt to define 1361 Avenida De Aprisa an entire software program as a trade secret. Compuware Corp. v. Health Care Serv. Corp., No. Camarillo, CA 93010 01C0873, 2002 WL 485710, at *2 (N.D. Ill. Apr. 1, 2002). Because of repeated failures by the plaintiff to identify Jack Trimarco - President (805) 383-8004 its trade secret, the magistrate recommended dismissal Former Polygraph Unit Chief of claims relating to 9 of 12 products. Id. at *7-*8. Los Angeles F.B.I. (1990-1998) 24 Computer Econ., Inc. v. Gartner Group, Inc., 50 F. email: [email protected] CA. P.I. #20970 Supp. 2d 980, 985-86 (S.D. Cal. 1999). www.jacktrimarco.com 25 Leucadia, Inc. v. Applied Extrusion Techs., Inc., 755 F. Supp. 635, 637 (D. Del. 1991) (“[D]isclosure of plain- Former Polygraph Inspection Team Leader tiff’s trade secrets prior to discovery of defendant may Member Society of Former Special Agents Office of Counter Intelligence be necessary to enable the defendant and ultimately the Federal Bureau of Investigation U.S. Department of Energy Court to ascertain the relevance of plaintiff’s discovery.”); Xerox Corp. v. IBM Corp., 64 F.R.D. 367, 371-72 (S.D. N.Y. 1974); Engelhard Corp. v. Savin Corp., 505

LOS ANGELES LAWYER / APRIL 2004 49 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

Ten Rules By David Nolte If you want to improve your chances of success in litigation, com- presentations must be accurately scaled to show amounts, measures, mit these rules to stone. Then follow them religiously. times, etc. For example, the y-axis (the vertical line in any numer- Keep it simple. This is the greatest commandment and the one ical chart) should begin with zero, and not skip amounts through most frequently violated. Too much information in a visual aid will the data that is being shown. Doing otherwise presents a biased confuse rather than clarify. To achieve your goal, invoke the following picture of the graphed data. Your charts should also include the guidelines: 1) Each chart should have only one major point, so use source of the information that it conveys. multiple charts that build on one another for more complex ideas; Use word charts rarely, if at all. Not all graphics are created 2) details that are too small to be easily seen should be eliminated equal. Graphics need to show pictures, concepts, and objects—not from the chart; and 3) eliminate extra words, numbers, and details. words and numbers. A typical PowerPoint slide presentation con- Use graphics with every important witness. Studies con- sisting of words and bullet points lacks creativity and interest. sistently show that memory increases several hundred percent Remember the seriousness of the setting. Modern com- when the information is both explained and shown. Armed with puterized graphics packages have a wide range of fancy do-das. this knowledge, you should improve every important witness’s That does not mean you need to use them in a courtroom. Jurors presentation with graphics. Graphics enhance the jury’s attention have a job to do, and most of them take it seriously. Keep to the span, increase witness credibility, and forcefully communicate your basics. Numbers should be presented with simple pie, bar, and line case’s theme between witnesses. Place the emphasis on the evi- charts. Overly flashy elements may even backfire by raising the sus- dence, not the witness. If allowed in the jury room, your graphics picion that you are attempting to hide something by being slick. will also serve as a tool that can be used by sympathetic jurors to Charts improve the entire process. Graphics can be useful convince others. during settlement, witness preparation, and strategy planning, so Improve interest through variety. Blowups of written doc- develop graphics early in the process. They can then be used dur- uments by themselves will cause a jury to lose interest almost as fast ing depositions as a means of having witnesses agree with your pre- as if no graphics were used. Use a combination of illustrations, pho- sentation of the facts. Each time you present your graphics, you will tographs, pie charts, line charts, bar charts, document blowups, and need to consider logistics, so acquaint yourself with the actual phys- video. Display these through a variety of presentation media, such ical layout where your presentation will occur before finalizing as foam boards, models, and on-screen projection. Variety also your plans. means not using graphics for everything. Although every witness Keep up with technology. Recent computer advances have should have some graphic support, the litigator needs to select those revolutionized the preparation and presentation of information. Costs issues that are truly important and direct graphic attention there. are a small fraction of what they used to be, but a budget is nec- Test your charts with those unfamiliar with your case. You essary. Even a low-budget case can afford some graphics. For need to be able to explain the key facts and rationale of each graphic example, document video cameras (sometimes called ELMOs after in a few minutes. If your graphic is not immediately understood by a particular brand) are now cost effective for every trial practice. those unfamiliar with your case, your explanation and/or your Storage of electronic images and graphics is also easier than ever. graphic needs to be reworked. Your jury will not have studied Hard disk and CD/DVD storage have advanced to the point where your case in any way comparable to the agonizing detail that you you can carry the equivalent of whole rooms of paper documents have mastered. The risk is that what is obvious to you will be lost in your briefcase. on the judge or jury. This does not require expensive jury research; Get help. In the end, each of these commandments is easier a small budget case can be reviewed with colleagues who promise said than done. There are a wide range of consultants who are skilled to be candid. in the technology and methods of producing effective presentations. Use only properly scaled and labeled color graphs. All Have them listen to your case and present ideas based on what they have seen be effective in similar circumstances. Judge them according to how they honor the first nine commandments. Vendors who David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 28 years frequently violate these commandments do not have an appreci- of experience performing forensic accounting, auditing, business ation of what it takes to make a convincing courtroom presenta- appraisals, and related financial consulting. He regularly serves as an tion. Keep looking until you find someone with the right skill and expert witness. approach in the courtroom.

50 LOS ANGELES LAWYER / APRIL 2004 ACCIDENT ANALYSIS/ RECONSTRUCTION DISCOVERY DIAGNOSTICS, MEDICAL CORPORATION A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA RADIOLOGY 91316, (818) 344-2700, fax (818) 344-3777. Engineers: B Reader experienced, registered, advanced degrees, and extensive testimony experience. Traffic accidents (all Board Certiﬁed Diagnostic and Nuclear Radiologist motor vehicle types, bicycles, pedestrians), collisions, Providing Statewide Diagnostic Imaging Services and Second Opinions rollovers, skid marks, visibility, signal phasing, time- Deposition, Arbitration and Trial Support motion, and low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, Pre-trial Research and Education and consumer products: brakes, seat belts, forklifts, Liens Accepted on Primary Imaging Studies machinery, tools, protective equipment, lawn mowers, heaters, chairs, ﬁxtures, ladders, scaffolds, fasteners. 6200 Wilshire Blvd, Suite 1008, Los Angeles, CA 90048 Premises liability (code analysis, stairways, ramps, (800) 222-6768 ¥ (323) 933-5100 ¥ Fax (323) 933-4966 doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. Biomechanics. Safety. Human factors. Web addresses: www.themripeople.com ¥ www.msus.com ¥ www.breader.com See display ad on page 52. E-mail address: [email protected]

ACCIDENT RESEARCH & RECONSTRUCTION 4120 Elizabeth Court, Cypress, CA 90630, (714) 995-5928, fax (714) 995-5929, cell (714) 904-5928. Contact David Moses, MSc, PE, president, consulting engineer. Forensic engineering, accident re- — DRIVER ERROR ANALYSIS — search, investigation and reconstruction: trucks, automobiles, motorcycles, bicycles, and pedestrians. Tires and ﬁres, all terrain vehicles (ATVs); fork lifts; dynamic Human Factors Forensic Science collision analysis; powertrain malfunction (engine etc.), Driver error • Inattention • Fatigue • Sensory, perceptual, industrial, and agricultural equipment; machine safety Internationally mental, and physical factors • Car, truck and bus driver and guarding; mechanical stress and vibration; experi- skill and knowledge requirements • Driver and motor mental stress analysis. Slip, trip, and fall. Inspection, Recognized carrier standards of care • Hours of service violations • photographic documentation (including video) testing, Circadian rhythms • Sleep debt • Human factors traffic models. Sound level readings for noise exposure and Expert safety analysis. Product liability for all the above. accident analysis www.drivingfatigue.com CONSULTANTS BUREAU, a division of KASHAR TECHNICAL SERVICES, INC. DENNIS WYLIE ■ D. WYLIE ASSOCIATES 5701 West Slauson Avenue, Suite 115, Culver City, CA P O Box 60836, Santa Barbara, CA 93160 90230, (310) 645-4404, fax (310) 645-9859, e-mail: [email protected]. Web site: www.consultantsbureau VOICE (805) 681•9289 ■ FAX (805) 681•9299 .info. Contact Robert Tarozzi. For almost 40 years, Mr. Tarozzi’s career has revolved around vehicles, as a project engineer for Chrysler, as chief engineer for both Hurst and All-American Racers, and as a consultant on automotive design, including engines, suspension, brakes, and drive trains. He has consulted with both plaintiff and defense attorneys regarding automotive accident litigation, including accident analysis and reconstruction and vehicle and component inspection. He has authored many articles for automotive maga- zines as well as a series of computer programs that analyze vehicle dynamics including both pre-accident and post-accident conditions and developments. See insert in this issue.

D. WYLIE ASSOCIATES P.O. Box 60836, Santa Barbara, CA 93160, (805) 681- 9289, fax (805) 681-9299. Web site: www.drivingfatigue .com. Contact Dennis Wylie. Internationally recognized human factors expert on driver error, inattention, fatigue, car, truck, and bus driver skill and knowledge requirements, driver and motor carrier standards of care, hours of service violations, circadian rhythms, sleep debt, impaired vigilance, alertness, decision making, reaction time, and control responses. See display ad on this page.

FIELD & TEST ENGINEERING, INC. 5175 Paciﬁc Coast Hwy, 1st Floor, Long Beach, CA 90804, (562) 743-7230, fax (562) 494-7667. Contact Robert F. Douglas PE. Automotive/traffic engineering cases. Millions of dollars in litigation (100s of cases) for both plaintiff and defense. Thirty-seven years of practicing experience. If we can’t help you, we will refer you to the best. See display ad on page 52.

GUNZLER & ASSOCIATES P.O. Box 5848, Santa Monica, CA 90409, (310) 396- 3430, e-mail: [email protected]. Contact Thomas Gunzler, PE. Engineering consulting office provides extensive consulting experience, individual case review, in-depth research and advice for both plaintiff and defendant in the following areas: safety engineering, traffic accident reconstruction, pedestrian safety

LOS ANGELES LAWYER / APRIL 2004 51 and premises liability, product failure analysis, work- ACCIDENT/RECONSTRUCTION/ place accidents, fire cause analysis, chemical hazards, VEHICULAR TRAFFIC AA RR TECHTECH mechanical design, patent validity and infringement, FORENSIC EXPERTS INC. laboratory examinations, and field inspections. Princi- BIOMECHANICS INSTITUTE WEST pal consultant has more than 40 years of experience in 3202 Campanil Drive, Santa Barbara, CA 93109, (805) mechanical and safety engineering. 898-0198, fax (805) 898-0178. Contact Dr. Anthony Sances Jr. Services available: Biomechanics, head in- FRED M. JOHNSON, PhD jury, spinal injury, all injuries—head to toe. Crashworthi- Experienced engineers P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, ness. Professor and chair major university, more than fax (714) 526-6662. Contact Fred M. Johnson, PhD. 30 years. Vehicle analysis and product analysis. Advanced degrees For those who seek the most qualified and the highest Funded by NHTSA and CDC, Navy and Army and Na- Extensive trial experience forensic workmanship. Extensive test facility and equip- tional Health studies in impact injury to Navy pilots, ment available. Lighting and illuminations: light intensity dummies, and surrogates in high-speed sleds for measurements, visual perception, times of sunset, twi- human tolerance. Investigated hundreds of frontal, ▼ Accident Reconstruction light, moon rise/set. Product failure analysis: medical rollover, side crash and rear-end accidents. Developed training/research laboratory for investigation of biome- Vehicle Collision Analysis, Speed, Time devices, glass, chairs (all types), ladders. Slip and fall: chanical injuries using high-speed sleds, drop towers, Motion History, Biomechanics Vehicle scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. Fall from electro-hydraulic testing devices and high-speed cam- Components: brakes, seats, seatbelts, etc. height: stairways, balconies, platform, theatre pit, pole. era/video analysis for multidirectional impact analysis. Author of nine books and more than 600 publications. ▼ Biomechanics. Traffic accident reconstruction: cars, Product Liability trucks, pedestrian, bicycle. Professor of physics, fellow Failure Analysis, Machinery, Guarding, Am. Physical Society, consultant to ANSI/BIFMA. Mem- ACCOUNTING Safety, Industrial & Consumer Products ber SAE, SATAI, ASTM + ICC. Author of textbook + 60 ADVISORS/EXPERTS @ MCS ASSOCIATES scientific publications. Over 35 years in research. Ex- 18881 Von Karman, Suite 1175, Irvine, CA 92612, ▼ Construction tensive expert witness experience. See display ad on (949) 263-8700, fax (949) 263-0770, e-mail: info Code Analysis Stairway, Ramps, Doors, page 77. @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. Windows, Guard rails, Roof, Walkways, WILLIAM KUNZMAN, PE Pools Industrial & Residential Nationally recognized banking, finance, and real estate 1111 Town and Country #34, Orange, CA 92868, consulting group (established 1973). Experienced liti- (714) 973-8383, fax (714) 973-8821, e-mail: mail ▼ Slip/Trip & Fall gation consultants/experts include senior bankers, @traffic-engineer.com. Web site: www.traffic-engineer lenders, consultants, economists, accountants, insur- Coefficient or Friction. Trip Hazard, Lighting .com. Contact William Kunzman, PE Traffic expert ance underwriters/brokers. Specialties: lending cus- witness since 1979, both defense and plaintiff. Auto, toms, practices, policies, in all types of lending (real pedestrian, bicycle, and motorcycle accidents. Largest estate, business/commercial, construction, consumer/ settlement: $2,000,000 solo vehicle accident case TELEPHONE: 818-344-2700 credit card), banking operations/administration, trusts against Caltrans. Before becoming expert witnesses, and investments, economic analysis and valuations/ FAX: 818-344-3777 employed by Los Angeles County Road Department, damages assessment, insurance claims, coverages Riverside County Road Department, City of Irvine, and and bad faith, real estate brokerage, appraisal, es- 18075 Ventura Blvd, Suite 209, Encino, CA 91316 Federal Highway Administration. Knowledge of govern- crow, and construction defects/disputes, and title in- mental agency procedures, design, geometrics, signs, surance. traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work— ARNOLD L. STENGEL & COMPANY UCLA; graduate work—Yale University. 2320 Cotner Avenue, Los Angeles, CA 90064, (310) 479-7777, fax (310) 479-0983. Contact Arnold L. MR. TRUCK ACCIDENT INVESTIGATION & Stengel. Expert witness services, litigation support ser- RECONSTRUCTION vices, structure for purchase/sale of professional prac- P.O. Box 398, Brentwood, CA 94513-0398, (800) 337- tices, including law and healthcare, business reorgani- 4994, fax (925) 625-4995, e-mail: william@mrtruckar zations, dairy/farming operations, representation before .com. Contact William M. Jones. Accident analysis taxing agencies, financial advisory and personal finan- and reconstruction. Court-qualified expert witness re- cial planning, estate and gift tax planning, individual garding car vs. car, truck vs. car cases, trucking indus- partnership, fiduciary, and corporation tax planning try safety, and driver training issues, including Power and preparation. Point court presentations. See display ad on page 60. BALLENGER, CLEVELAND & ISSA, LLC RIMKUS CONSULTING GROUP, INC. 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA 333 City Boulevard West, Suite 1805, Orange, CA 90024, (310) 873-1717, fax (310) 873-6600. Contact 92868, (877) 978-2044, fax (714) 978-2088, e-mail: Bruce W. Ballenger, CPA, executive managing di- [email protected]. Web site: www.rimkus.com. rector. Services available: assist counsel in determin- Contact Joe Rowland. Rimkus Consulting Group is a ing overall strategy. Help evaluate depositions and evi- full-service forensic consulting firm. Since 1983, we dence. Provide well-prepared, well-documented, and have provided reliable investigations, reports, and ex- persuasive in-court testimony regarding complicated pert witness testimony around the world. Our engineers accounting, financial, and business valuation matters, and consultants analyze the facts from origin and fairness of interest rates, feasibility of reorganization cause through extent of loss. Services: mold evalua- plans, fraudulent conveyances, bankruptcies, mergers tions, indoor air quality assessments, biomechanical and acquisitions, and management misfeasance/ analysis, product failure analysis, fire cause and origin, malfeasance. More than 100 open-court testimonies, property evaluations, foundation investigations, indus- federal and state, civil and criminal. See display ad on trial accidents and explosions, vehicle accident recon- page 64. struction, water intrusion analysis, geotechnical evaluations, construction accidents, construction defect COHEN, MISKEI & MOWREY LLP analysis, construction disputes, financial analysis and 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, assessments, forensic accounting, HVAC analysis, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: electrical failure analysis, and video/graphics computer [email protected]. Contact Scott Mowrey. animation. See display ad on page 73. Specialties: consultants who provide extensive experience, litigation support and expert testimony regarding JAMES A. SMITH, CONSULTANT forensic accountants, fraud investigations, economic 2562 Treasure Drive, #4102, Santa Barbara, CA 93105- damages, business valuations, family law, bankruptcy, 4104, (805) 687-7911, fax (805) 687-0832, e-mail: and reorganization. Degrees/license: CPAs, CFEs, [email protected]. Electrical accidents, consultant, MBAs. See display ad on page 24. expert witness, electrocution, electric shock, analyzing what happened and why, National Electric Code com- DELOITTE & TOUCHE LLP pliance, National Electric Safety Code compliance, pro- 350 South Grand Avenue, Los Angeles, CA 90071, tective relaying, and equipment and product testing. (213) 688-4135, fax (213) 673-6719, e-mail: mspindler Degree/licenses: BSEE, MSEE. @deloitte.com. Contact Michael Spindler, (213) 688-

52 LOS ANGELES LAWYER / APRIL 2004 APRIL 2004 MASTER 3/12/04 11:45 AM Page 53

WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT

EXPERT WITNESS TESTIMONY for business, real estate, and personal injury litigation and marital dissolution, investigative analysis of liability, damage analysis of lost proﬁts and earnings, business valuation, accounting, and tax. Hundreds of times as expert witnesses. Prior Big Four accounting ﬁrm experience. Specialties include: accounting, antitrust, breach of contract, business interruption, business dissolution, construction delays, defects, and cost overruns, fraud investigations, asset tracing, intellectual property (including patent, trademark and copyright infringement and trade secrets), malpractice, marital dissolution, personal injury, product liability, real estate, spousal support, taxation, unfair advertising, unfair competition, valuation of businesses, and wrongful termination.

Business Litigation Marital Dissolution Barbara Luna, PhD, CPA, CFE, ASA, Paul White, CPA, CVA CVA, ABV, CGREA, CCREA, CREA Jack Zuckerman, JD, CPA, ABV Andrew Hunt, MBA, CPA, ASA Fred Warsavsky, MS, CPA, CVA, ABV Cindy Holdorff, CPA Andrew Hunt, MBA, CPA, ASA David Turner, CPA, ABV Jack White, CPA, ABV Dean Atkinson, CPA, CFE, ABV Pamela Wax-Semus John Canning, MBA Dean Atkinson, CPA, CFE, ABV David Semus, CPA Valuation Emily Reich, CPA Barbara Luna, PhD, CPA, CFE, ASA, CVA, ABV, CGREA, CCREA, CREA Personal Injury/Employment Fred Warsavsky, MS, CPA, CCVA, ABV Litigation Jack Zuckerman, JD, CPA, ABV Barbara Luna, PhD, CPA, CFE, ASA, Andrew Hunt, MBA, CPA, ASA CVA, ABV, CGREA, CCREA, CREA David Turner, CPA, ABV Venita McMorris, MA Dean Atkinson, CPA, CFE, ABV Andrew Hunt, MBA, CPA, ASA

Tax Fraud Investigation William Wolf, MBA, CPA Barbara Luna, PhD, CPA, CFE, ASA, Greg Mogab, MBT, CPA, PFS CVA, ABV, CGREA, CCREA, CREA Ron Thompson, CPA Cindy Holdorff, CPA Emily Reich, CPA

e-mail: [email protected] • website: www.wzwlw.com

14455 Ventura Boulevard Suite 300, Sherman Oaks, California 91423 Phone (818) 981-4226 or (310) 276-7831 Fax (818) 981-4278 333 City Boulevard West 17th Floor, Orange, CA 92868 Phone (714) 939-1781 Fax (714) 938-3874 4135. Mimi Justice, (714) 436-7026, or Tom Hughes, in matters involving business disputes, goodwill, eco- SCHULZE HAYNES & CO. (619) 237-6583. Our highly skilled team is composed of nomic damages, loss of earnings and profits, fraud and 660 South Figueroa Street, Suite 1280, Los Angeles, a diverse group of practitioners—CPAs, certified fraud embezzlement, forensic accounting, business valua- CA 90017, (213) 627-8280, fax (213) 627-8301, examiners, statisticians, economists, computer forensic tion, marital dissolution, legal and accountants’ mal- e-mail: [email protected]. Web site: www experts, business valuation experts, and online re- practice, wrongful termination, intellectual property, .schulzehaynes.com. Contact Karl J. Schulze or search specialists. We also employ former senior law and bankruptcy. Member of Voir Dire Partners, LLC. Dana Haynes, principals. Specialties: forensic busi- enforcement officials and agents from the FBI and Affiliated offices nationwide. ness analysis and accounting, lost profits, economic other government agencies. Services available world- damages, expert testimony, discovery assistance, wide. KRYCLER, ERVIN, TAUBMAN, & WALHEIM business and real estate valuations, construction 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, claims, corporate recovery, real estate transactions, FULCRUM FINANCIAL INQUIRY LLP CA 91403, (818) 995-1040, fax (818) 995-4124. Web financial analysis and modeling, major professional 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA site: [email protected]. Contact Michael J. Krycler. organizations, and have experience across a broad 90017, (213) 787-4000, fax (213) 787-4144, Litigation support, including forensic accounting, busi- spectrum of industries and business issues. Degrees/ e-mail: [email protected]. Web site: www ness appraisals, family law accounting, business and licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; .fulcruminquiry.com. Contact David Nolte. Our analy- professional valuations, damages, fraud investigations, RE broker. sis and research combined with unique presentation and lost earnings. Krycler, Ervin, Taubman and Wal- techniques have resulted in an unequaled track record heim is a full-service accounting firm serving the legal SUGARMAN & COMPANY, LLP in successful court cases and client recoveries. Our community for more than 20 years. See display ad on 44 Montgomery Street, Suite 1310, San Francisco, CA personnel are full-time and focused on the services we page 80. 94104, (415) 395-7512, fax (415) 658-2858, e-mail: provide. We incorporate technology into our work to [email protected]. Web site: www provide great results at a more reasonable cost. Our DIANA G. LESGART, CPA, CFE, AN .sugarman-company.com. Contact Diane LaBelle. expertise encompasses damages analysis, lost profit ACCOUNTANCY CORP. Expert witness testimony in federal, state, and local studies, business and intangible asset valuations, fraud 9520 Topanga Canyon Blvd., Suite 104, Chatsworth, courts, forensic accounting. Case involvement in- investigations, forensic economic analysis, analysis of CA 91311, (818) 886-7140, fax (818) 886-7146, e-mail: cludes: damage calculations, lost profits, business in- computerized data, and computer forensics. See dis- [email protected]. Contact Diana G. Lesgart, CPA, terruption, cash flow analysis, forensic accounting, play ad on page 2. CFE. Specialized accounting and litigation support ser- business and real estate valuations, construction dam- vices in the areas of family law litigation, tracing of as- ages, insurance claims, fraud investigations, lender lia- GLENN M. GELMAN & ASSOCIATES, sets, pension plan tracing, forensic accounting, busi- bility, partnership dissolution, professional malpractice, CERTIFIED PUBLIC ACCOUNTANTS AND ness valuation, goodwill, expert testimony, commercial white collar crime, liquidation and going concern analy- BUSINESS CONSULTANTS litigation, fraud investigations, economic damages, and sis, as well as bankruptcy and reorganization manage- 1940 East 17th Street, Santa Ana, CA 92705, (714) real estate litigation. Over 20 years’ accounting experi- ment and consulting. 667-2600, fax (714) 667-2636. Web site: www.gmgcpa ence with 16 years’ litigation support specialization. Ex- .com. Contact Glenn Gelman. Expert witness testi- pert is fully English/Spanish bilingual. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, mony, strategy development, document discovery, WOLF & HUNT deposition assistance, computation of damages, arbi- MIOD AND COMPANY, LLP CPAs 14455 Ventura Boulevard, Suite 300, Sherman Oaks, tration consulting, forensic accounting, investigative 11600 Indian Hills Road, Building B, Suite 300, Mission CA 91423, (818) 981-4226, fax (818) 981-4278, and auditing, rebuttal testimony, fiduciary accountings, and Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- 333 City Boulevard West, 17th Floor, Orange, CA trial exhibit preparation. 9922, 74-478 Highway 111, Suite 254, Palm Desert, 92868, (714) 939-1781, fax (714) 938-3874, e-mail: CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: [email protected]. Contact Barbara Luna, Drew GURSEY, SCHNEIDER & CO., LLP [email protected]. Visit our Web site at www Hunt, Paul White, Jack Zuckerman, Fred 10351 Santa Monica Boulevard, Suite 300, Los Angeles, .miod-cpa.com. Contact Donald John Miod, CPA, Warsavsky, and Bill Wolf. Expert witness testimony CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: ABV, CVA, CBA. More than 30 years’ experience in liti- for business, real estate, personal injury, and marital [email protected]. Web site: www.gursey.com. gation support, including computation of income avail- dissolution. Investigative analysis of liability, damage Contact Roseanna Purzycki or Rory Burnett. Foren- able for support, tracing, business valuations, fraud in- analysis of lost profits, lost earnings, and unjust enrich- sic accounting and litigation support services in the vestigations, earnings loss calculations, and income ment, fraud investigation, business valuation, tax plan- areas of marital dissolution, business valuation and ap- tax matters. Our firm is very computer-oriented, involv- ning and preparation and mergers and acquisitions. praisal, goodwill, business disputes, malpractice, tax ing the use of computer graphics. We are members of Hundreds of times as expert witnesses. Prior “big four” matters, bankruptcy, damage and cost-profit assess- the Institute of Business Appraisers, the International accounting firm experience. Specialties include ac- ments, insurance claims, court accounting, tracing, Society of CPAs (founding member), the American In- counting, antitrust, breach of contract, business inter- and entertainment industry litigation. See display ad stitute of CPAs, and California Society of CPAs. See ruption, business dissolution, construction, fraud inves- on page 55. display ad on page 79. tigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and HAYNIE & COMPANY, CPAs DAVID OSTROVE, ATTORNEY-CPA trade secrets), product liability, real estate, spousal 4910 Campus Drive, Newport Beach, CA 92660, (949) 5757 Wilshire Boulevard, Suite 535, Los Angeles, CA support, tax, valuation of businesses, unfair advertis- 724-1880, fax (949) 724-1889, e-mail: sgabrielson 90036-3600, (323) 939-3400, fax (323) 939-3500, ing, unfair competition, and wrongful termination. See @hayniecpa.com. Web site: www.hayniecpa.com. e-mail: [email protected]. Web site: www.lawyers display ad on page 53. Contact Steven C. Gabrielson. Alter ego, consulting .com/ok&olaw. Contact David Ostrove. Accounting and expert witness testimony in a variety of practice malpractice (defense/plaintiff). Experts in legal malprac- ZIVETZ, SCHWARTZ & SALTSMAN, CPAs areas: commercial damages, ownership disputes, eco- tice (defense/plaintiff), auditor’s malpractice (defense/ 11900 West Olympic Boulevard, Suite 650, Los Ange- nomic analysis, business valuation, lost profits analysis, plaintiff), business valuations, breach of fiduciary duty, les, CA 90064-1151, (310) 826-1040, fax (310) 826- fraud/forensic investigations, taxation, personal injury, insurance bad faith cases, tax matters, fraudulent con- 1065. Web site: www.zsscpa.com. Contact Lester J. wrongful termination, professional liability, and expert veyances, leveraged buyout, analysis of financial state- Schwartz, CPA, DABFE, DABFA, Michael D. Salts- cross examination. Extensive public speaking back- ments, estate planning, civil litigation, tax litigation, pro- man, CPA, MBA, Ron B. Miller, CPA, ABV, CFE, or ground assists in courtroom presentations. bate litigation, criminal tax litigation, and business and David Dichner, CPA, ABV, CVA. Accounting experts real estate transactions. See display ad on page 55. in forensic accounting, tax issues, business valuations, JONATHAN E. COHEN, AN ACCOUNTANCY and appraisals, marital dissolutions, eminent domain, CORPORATION SANLI PASTORE & HILL, INC. insurance losses, business interruption, goodwill, eco- 5850 Canoga Avenue, Suite 200, Woodland Hills, CA 1990 South Bundy Drive, Suite 800, Los Angeles, CA nomic analysis, investigative auditing, loss of earning, 91367, (818) 340-9272, fax (818) 883-8126, e-mail: 90025, (310) 571-3400, fax (310) 571-3420, Web site commercial damages, and lost profits. Expert witness [email protected]. Contact Jonathan E. Cohen. address: www.sphvalue.com. Contact Nevin Sanli or testimony preparation, and settlement negotiations and Analysis and calculation of damages and lost profits Tom Pastore. Sanli Pastore & Hill, Inc. is a premier consultations. See display ad on page 51. (arising from personal injury, business interruption, dis- provider of business valuation and valuation advisory ability and wrongful death and termination), expert wit- services, specializing in litigation support and expert ADA/DISABILITY DISCRIMINATION ness testimony and reports, assistance with discovery, witness testimony. Services include valuations for depositions and development of case strategy, and ac- goodwill loss, estate and gift tax planning (family lim- HAIGHT CONSULTING counting and financial statement analysis. Jon Cohen ited partnerships), lost profit analysis, mergers and ac- 1726 Palisades Drive, Pacific Palisades, CA 90272, has 32 years in public practice as a CPA, including 23 quisitions, goodwill impairment, fairness and solvency (310) 454-2988, fax (310) 454-4516. Contact Marcia in litigation support, and holds an MBA. opinions, ESOPs, incentive stock options, capital Haight. Human resources expert knowledgeable in raises, corporate, partnership, and marital dissolutions. both federal and California law. Twenty-five years’ cor- KAPLAN ABRAHAM BURKERT & COMPANY Comprehensive economic, industry, and market re- porate human resources management experience plus Forensic valuation consultants. 5950 Canoga Avenue, search. Extensive experience in expert witness testi- over 14 years as a Human Resources Compliance Suite 200, Woodland Hills, CA 91367, (818) 888-0066, mony, pretrial preparation, and settlement negotiations. Consultant in California. Specializations include sexual fax (818) 888-8860. Contact Michael G. Kaplan, CPA, See display ad on page 57. harassment, ADA/disability discrimination, other Title CVA, CFFA. Expert witness services and preparation VII and FEHA discrimination and harassment, retalia-

54 LOS ANGELES LAWYER / APRIL 2004 tion, FMLA/CFRA, and safety. Courtroom testimony and deposition experience. Retained 60% for defense, 40% for plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources policies and practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert testimony.

ALLERGY/ASTHMA/IMMUNOLOGY ROGER M. KATZ MD 1304 15th Street @ Arizona, Suite 102, Santa Monica, CA 90404, (310) 393-1550, fax (310) 576-3601, e-mail: [email protected]. Web site: www.allergyasthmamal .com. Contact Roger M. Katz, MD. IME/expert witness/review. Experienced plaintiff and defense. Expert witness record review, IME.

ANESTHESIOLOGY ROGER F. DONENFELD, MD 10557 Rocca Place, Los Angeles, CA 90077, (310) 471-3777, fax (323) 209-0010. Contact Roger F. Donenfeld, MD. Chart review and depositions. Expert witness, board certiﬁed, 1986. Anesthesiology fellowship- trained. Ivy League, board review textbook author. Certi- ﬁed medical Board of CA expert. Active clinical anesthe- sia practice. Extensive medical legal experience.

APPRAISAL AND VALUATION ADVISORY SERVICES GROUP Coldwell Banker Commercial, 2502 West Artesia Boulevard, Redondo Beach, CA 90278, (310) 937- 7700, fax (310) 798-6836. Specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell Banker Commercial group, over 450 offices nationwide. Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering. Right-of- way eminent domain, structural defect reports, and construction defect reports. In-house CPA, general contractor, and engineers. Approved for IRS, federal, state, and municipal courts. Offices in Orange County, San Diego/Inland Empire and Northern California. See display ad on page 81.

AMERICAN APPRAISAL ASSOCIATES 350 South Grand Avenue, Suite 3070, Los Angeles, CA 90071, (213) 687-1400, fax (213) 687-7440, e-mail: [email protected]. Contact Stephen A. Stewart, vice president/managing principal. American Appraisal Associates is one of the oldest (est.1896) and largest (1000+ employees) appraisal/ valuation ﬁrms in the world, with offices throughout the globe. American appraisal is a full-service appraisal/ valuation ﬁrm offering expertise in real estate, machinery and equipment, and business valuation. Our consultants can assist with solvency and insolvency analyses, litigation support, expert testimony, intangible assets, and discounts associated with minority interests.

DENA HALL AND ASSOCIATES 4554 Poe Avenue, Woodland Hills, CA 91364, (818) 887-4399, fax (818) 887-4479, e-mail: dhartco@aol .com. Contact Dena Hall, ASA, AAA, senior member. Fine art and personal property appraiser, tested and certified. Specialist in antiques, fine arts, and decora- tive arts. Appraiser for insurance, charitable donation, probate, or family division. Specialist in art litigation, art and insurance fraud cases. Qualified expert witness with testimony in over 100 cases in municipal courts, state and federal courts.

LOS ANGELES LAWYER / APRIL 2004 55 in successful court cases and client recoveries. Our .com. Web site: www.kpaa.com. Contact Ron Tov. personnel are full-time and focused on the services we Architectural expert witness and consulting services for provide. We incorporate technology into our work to construction defect and personal injury claims, includ- provide great results at a more reasonable cost. Our ing investigation, mediation, arbitration, and trial testi- expertise encompasses damages analysis, lost profit mony on architecture, building codes, construction, studies, business and intangible asset valuations, fraud standards of care, responsibility allocation, and repair investigations, forensic economic analysis, analysis of solutions. Experience from over 1,000 investigations, computerized data, and computer forensics. See dis- ranging from custom homes to complex 1,500 unit resi- play ad on page 2. dential projects and nonresidential buildings, enables KPA Associates to develop innovative and cost-effec- HAMILTON, RABINOVITZ & ALSCHULER, INC. tive solutions to construction-related disputes. Archi- 6033 West Century Boulevard, Suite 890, Los Angeles, tects licensed in California, Nevada, Arizona, and Col- CA 90045, voice (310) 645-9000, fax (310) 645-8999. orado. See display ad on page 69. E-mail: [email protected]. Contact Francine Rabinovitz, PhD, executive vice president. Public ARCHITECTURE policy, finance, and management consultants providing litigation support, simulation, and modeling to IAN MacKINLAY ARCHITECTURE, INC. (IMA) courts and corporate/public litigants in land use, real 26 O’Farrell Street, Suite 200, San Francisco, CA estate development, environmental protection, mass tort 94108, (415) 243-4191, fax (415) 243-9769, e-mail: (including toxic tort), insurance, finance, housing, minor- ima-arch.com. Web site: www.ima-arch.com. Contact ity rights, education, and employment cases. Degrees/li- Ian Mackinlay, FAIA, president. Specialties: architec- cense: MBAs, PhDs, cert. planners, MPAs, MCPs. ture; expert analysis and testimony regarding architectural design and construction defects: building code HIGGINS, MARCUS & LOVETT, INC. compliance, roofing and waterproofing system, prob- 800 South Figueroa Street, Suite 710, Los Angeles, CA lems related to buildings in snow and cold, problems 90017, e-mail: [email protected]. Web site: www related to mold, litigation strategy and organization, .hmlinc.com. Contact Mark C. Higgins, ASA, presi- product research and documentation, alternative dis- dent. The firm has over 20 years of litigation support pute resolution, remedial design and reconstruction, and expert testimony experience in matters involving design review/quality assurance, and design-related business valuation, economic damages, intellectual accident trial graphics. 450+ cases since 1979. property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent PHILIP KROEZE, AIA, CSI, domain, bankruptcy, and corporate and marital disso- Consulting Architectural Services lution. See display ad on page 59. 19 Summerside, Coto De Caza, CA 92679, (949) 589- 0554, fax (949) 589-4351, e-mail: [email protected]. Web KRYCLER, ERVIN, TAUBMAN, & WALHEIM site: www.jurispro.com Expert search: Kroeze. Contact 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, Philip Kroeze. Licensed Architect, State of California, CA 91403, (818) 995-1040, fax (818) 995-4124. Web member: AIA, CSI, ICBO, NCARB. Expert witness: site: [email protected]. Contact Michael J. Krycler. Architectural/engineering standard of care, construc- Litigation support, including forensic accounting, busi- tion defects, moisture intrusion, construction docu- ness appraisals, family law accounting, business and ments. 30+ years of experience in design and con- professional valuations, damages, fraud investigations, struction, single and multifamily residential, commer- and lost earnings. Krycler, Ervin, Taubman and Wal- cial, industrial, and office. UBC types I-V: wood, steel, Construction Claims heim is a full-service accounting firm serving the legal and concrete structures. Planning, design, working community for more than 20 years. See display ad on drawings, specifications, and construction. Quality as- page 80. surance: drawing/specification, coordination models, photographs, charts, renderings, and other exhibits. When you’re handling a SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA KUDRAVE ARCHITECTS construction dispute, you’ll be 90025, (310) 571-3400, fax (310) 571-3420, Web site: 811 West Seventh Street, Penthouse Suite, Los Ange- glad to know who we are. www.sphvalue.com. Contact Nevin Sanli or Tom les, CA 90017, (213) 955-0005, fax (213) 955-0006, Pastore. Sanli Pastore & Hill, Inc. is a premier provider e-mail: [email protected]. Contact Peter G. Pacific Construction of business valuation and valuation advisory services, Kudrave. Architectural design, engineering, construc- Consultants, Inc. will assist in specializing in litigation support and expert witness tion, standard of care, construction delays, cost overruns, defects, construction accidents and failures. uncovering and analyzing facts testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partner- important to your case. ships), lost profit analysis, mergers and acquisitions, AUTOMOTIVE INDUSTRY goodwill impairment, fairness and solvency opinions, BIOMECHANICS INSTITUTE WEST Our highly experienced staff ESOPs, incentive stock options, capital raises, corpo- 3202 Campanil Drive, Santa Barbara, CA 93109, (805) will provide support from the rate, partnership, and marital dissolutions. Comprehen- 898-0198, fax (805) 898-0178. Contact Dr. Anthony sive economic, industry, and market research. Exten- first analysis to the last day in Sances Jr. Services available: Biomechanics, head sive experience in expert witness testimony, pretrial injury, spinal injury, all injuries—head to toe. Crash- courtÐinvestigating, making the preparation, and settlement negotiations. See display worthiness. Professor and chair major university, more ad on page 57. complex understandable, and than 30 years. Vehicle analysis and product analysis. presenting evidence through Funded by NHTSA and CDC, Navy and Army and APPRAISAL/BUSINESS VALUATION expert testimony and trial National Health studies in impact injury to Navy pilots, DELOITTE & TOUCHE LLP dummies, and surrogates in high-speed sleds for support graphics. 350 South Grand Avenue, Los Angeles, CA 90071, human tolerance. Investigated hundreds of frontal, Pacific Construction (213) 688-4135, fax (213) 673-6719, e-mail: mspindler rollover, side crash and rear-end accidents. Developed @deloitte.com. Contact Michael Spindler, (213) 688- training/research laboratory for investigation of biome- Consultants, Inc. is responsive, 4135. Mimi Justice, (714) 436-7026, or Tom Hughes, chanical injuries using high-speed sleds, drop towers, factual, and results-oriented. (619) 237-6583. Our highly skilled team is composed of electro-hydraulic testing devices and high-speed cam- a diverse group of practitioners—CPAs, certified fraud era/video analysis for multidirectional impact analysis. For more information, call examiners, statisticians, economists, computer forensic Author of nine books and more than 600 publications. 1-800-655-PCCI. experts, business valuation experts, and online research specialists. We also employ former senior law BANKING enforcement officials and agents from the FBI and other ADVISORS/EXPERTS @ MCS ASSOCIATES government agencies. Services available worldwide. 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: info @mcsassociates.com. Web site: www.mcsassociates ARCHITECTURAL FORENSICS PACIFIC CONSTRUCTION .com. Contact Norman Katz, managing partner. KPA ASSOCIATES, INC. Nationally recognized banking, finance, and real estate CONSULTANTS, INC. 3033 Fifth Avenue, Suite 100, San Diego, CA 92103, consulting group (established 1973). Experienced liti- (619) 725-0980, fax (619) 725-0988, e-mail: r.tov@kpaa gation consultants/experts include senior bankers,

56 LOS ANGELES LAWYER / APRIL 2004 lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/ credit card), banking operations/administration, trusts and investments, economic analysis and valuations/ damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.

ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: [email protected]. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lend- ing, forgery, endorsements, letters of credit, guarantees, lender liability, checking accounts, credit cards, and bankruptcy. Expert witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real estate. Over 500 cases nationally. See display ad on page 81.

BANKRUPTCY/TAX ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: [email protected]. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lend- ing, forgery, endorsements, letters of credit, guarantees, lender liability, checking accounts, credit cards, and bankruptcy. Expert witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real estate. Over 500 cases nationally. See display ad on page 81.

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, financial, 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 64. VALUATION AND LITIGATION CONSULTANTS GREENBERG GLUSKER FIELDS CLAMAN Since 1968 MACHTINGER & KINSELLA LLC 1900 Avenue of the Stars, Suite 2100, Los Angeles, ▲ CA 90067, (310) 201-7456, fax (310) 553-0687, e-mail: BUSINESS VALUATION — Appraisal of tangible and intangible assets; kblock@ggfirm.com. Web site: www.ggfirm.com. mergers. acquisitions, divestitures; public and private financings; litigation Contact Karl E. Block. Expert testimony and involving partnership or corporate disputes; estate planning consulting. ▲ LITIGATION CONSULTING — Expert testimony on damage issues; THE SCOTLAND GROUP, INC., AN ALTMA GROUP, LLC COMPANY breach of contract; business interruption; partnership or shareholder disputes; 620 Newport Center Drive, Suite 1100, Newport Beach, fraud investigations; personal injury matters CA 92660, (949) 673-7750, fax (949) 673-7751, e-mail: [email protected]. Web site: www.scotlandgroup.com. ▲ EMINENT DOMAIN — Specialty practice in the appraisal of fixtures and Contact David L. Auchterlonie, CTP. Firm of over 60 professionals (CEOs COOs and CFOs), each with equipment and goodwill loss more than 20 years of hands-on corporate turnaround ▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant database and management consulting experience. Since 1986, the firm has served more than 600 underperforming management and settlement distribution services and financially distressed businesses. Experts in corporate renewal. COMMITMENT, INGENUITY, INTEGRITY Contact: Aaron Amster, Wes Nutten BIOMECHANICS/RECONSTRUCTION/ HUMAN FACTORS 6060 Center Drive, Suite 825 225 Bush Street, 16th Floor INSTITUTE OF RISK & SAFETY ANALYSES Los Angeles, California 90045 San Francisco, California 94104 5324 Canoga Avenue, Woodland Hills, CA 91364, Tel (310) 216-1400 Tel (415) 439-8390 (818) 348-1133, fax (818) 348-4484, e-mail: expert Fax (310) 216-0800 Fax (415) 439-8391 @irsa.us. Web site: www.irsa.us. Contact: Chief Scientist Kenneth A. Solomon, PhD, PE, Post PhD., Toll-free (888) 240-5184 Shelli, or Wes. Specialized staff of 23. Broad range of consulting and expert testimony. Thirty years’ court- www.dmavalue.com room experience. Accident reconstruction, biomechan-

LOS ANGELES LAWYER / APRIL 2004 57 ics, human factors, safety, accident prevention, ade- GURSEY, SCHNEIDER & CO., LLP Society of CPAs (founding member), the American In- quacy of warnings, computer animation, computer sim- 10351 Santa Monica Boulevard, Suite 300, Los Ange- stitute of CPAs, and California Society of CPAs. See ulation, construction defects, criminal defense, criminal les, CA 90025, (310) 552-0960, fax (310) 557-3468, display ad on page 79. prosecution, premises, product integrity, product liabil- e-mail: [email protected]. Web site: www.gursey ity, product testing, product warnings. Auto, bicycle, .com. Contact Vanita M. Spaulding, CFA, ASA. Part- SANLI PASTORE & HILL, INC. bus, chair, elevator, escalator, forklift, gate, ladder, ma- ner qualifications include MBA, CFA, ASA, and ABV. 1990 South Bundy Drive, Suite 800, Los Angeles, CA chinery, motorcycle, press, recreational equipment, GSCO is an accounting firm specializing in forensic 90025, (310) 571-3400, fax (310) 571-3420, Web site: roller coaster, slip, trip & fall, stairs, swimming pool, accounting, litigation support services, business valua- www.sphvalue.com. Contact Nevin Sanli or Tom truck. Litigation & non-litigating, educational seminars, tion and appraisal services, for a variety of purposes Pastore. Sanli Pastore & Hill, Inc. is a premier provider defense & plaintiff, & mediation & arbitration services. including marital dissolution, gift and estate planning, of business valuation and valuation advisory services, eminent domain goodwill loss, business disputes, mal- specializing in litigation support and expert witness tes- BUSINESS APPRAISAL/BUSINESS practice, tax matters, bankruptcy, damage and cost- timony. Services include valuations for goodwill loss, VALUATION profit assessments, insurance claims, court accounting, estate and gift tax planning (family limited partner- tracing, and entertainment industry litigation. GSCO has ships), lost profit analysis, mergers and acquisitions, AMERICAN APPRAISAL ASSOCIATES over 30 years’ experience as expert witnesses in litiga- goodwill impairment, fairness and solvency opinions, 350 South Grand Avenue, Suite 3070, Los Angeles, CA tion support. See display ad on page 55. ESOPs, incentive stock options, capital raises, corpo- 90071, (213) 687-1400, fax (213) 687-7440, e-mail: rate, partnership, and marital dissolutions. Comprehen- [email protected]. Contact Stephen HAYNIE & COMPANY, CPAs sive economic, industry, and market research. Exten- A. Stewart, vice president/managing principal. 4910 Campus Drive, Newport Beach, CA 92660, (949) sive experience in expert witness testimony, pretrial American Appraisal Associates is one of the oldest 724-1880, fax (949) 724-1889, e-mail: sgabrielson preparation, and settlement negotiations. See display (est.1896) and largest (1000+ employees) appraisal/ @hayniecpa.com. Web site: www.hayniecpa.com. ad on page 57. valuation firms in the world, with offices throughout the Contact Steven C. Gabrielson. Alter ego, consulting globe. American appraisal is a full-service appraisal/ and expert witness testimony in a variety of practice SCHULZE HAYNES & CO. valuation firm offering expertise in real estate, machin- areas: commercial damages, ownership disputes, eco- 660 South Figueroa Street, Suite 1280, Los Angeles, ery and equipment, and business valuation. Our con- nomic analysis, business valuation, lost profits analysis, CA 90017, (213) 627-8280, fax (213) 627-8301, sultants can assist with solvency and insolvency analy- fraud/forensic investigations, taxation, personal injury, e-mail: [email protected]. Web site: www ses, litigation support, expert testimony, intangible as- wrongful termination, professional liability, and expert .schulzehaynes.com. Contact Karl J. Schulze or sets, and discounts associated with minority interests. cross examination. Extensive public speaking back- Dana Haynes, principals. Specialties: forensic busi- ground assists in courtroom presentations. ness analysis and accounting, lost profits, economic BUSINESS ENTERPRISE APPRAISAL CO., INC. damages, expert testimony, discovery assistance, 23801 Calabasas Road, Suite 1016, Calabasas, CA HIGGINS, MARCUS & LOVETT, INC. business and real estate valuations, construction 91302, (818) 591-9282, or (800) 928-7463. Contact 800 South Figueroa Street, Suite 710, Los Angeles, CA claims, corporate recovery, real estate transactions, Larry Grant, ASA or Robert Weinstock, JD, CBA. 90017, e-mail: [email protected]. Web site: www.hmlinc financial analysis and modeling, major professional or- Appraisal of businesses and professional practices for .com. Contact Mark C. Higgins, ASA, president. The ganizations, and have experience across a broad all litigation and nonlitigation purposes, including estate firm has over 20 years of litigation support and expert spectrum of industries and business issues. Degrees/li- planning and taxation, for 706 filings, FLP and LLC dis- testimony experience in matters involving business val- censes: CPA; CVA; CFE; CMA; certified appraiser, PE; counts, S corporation elections, corporate dissolutions, uation, economic damages, intellectual property, loss RE broker. damages, loss and earnings and condemnation of of business goodwill, and lost profits. Areas of practice goodwill. Expert witnesses in all jurisdictions. Estab- include business disputes, eminent domain, bank- SINGLER VALUATION CONSULTING lished 1972. ruptcy, and corporate and marital dissolution. See dis- 2127 Lyans Drive, La Cañada, CA 91011, (818) 541- play ad on page 59. 1500, fax (818) 541-1565, e-mail: noasingler@earthlink COHEN, MISKEI & MOWREY LLP .net. Contact Noa Singler. Valuation of closely held 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, KAPLAN ABRAHAM BURKERT & COMPANY businesses, eminent domain, goodwill loss analysis, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: Forensic valuation consultants. 5950 Canoga Avenue, expert witness testimony, litigation consulting, gift and [email protected]. Contact Scott Mowrey. Suite 200, Woodland Hills, CA 91367, (818) 888-0066, estate tax, damage analysis, and acquisitions. Specialties: consultants who provide extensive experi- fax (818) 888-8860. Contact Michael G. Kaplan, CPA, ence, litigation support and expert testimony regarding CVA, CFFA. Expert witness services and preparation VICENTI, LLOYD & STUTZMAN LLP forensic accountants, fraud investigations, economic in matters involving business disputes, goodwill, eco- 2210 East Route 66, Glendora, CA 91740, (626) 857- damages, business valuations, family law, bankruptcy, nomic damages, loss of earnings and profits, fraud and 7300, fax (626) 857-7302, e-mail: rstutzman@vlsllp and reorganization. Degrees/license: CPAs, CFEs, embezzlement, forensic accounting, business valua- .com. Web site: www.vlsllp.com. Contact Royce MBAs. See display ad on page 24. tion, marital dissolution, legal and accountants’ mal- Stutzman, CVA, CPA, Chairman. Our certified profes- practice, wrongful termination, intellectual property, sionals serve as consultants and experts in business DESMOND MARCELLO AND AMSTER and bankruptcy. Member of Voir Dire Partners, LLC. valuations and litigation support. We conduct valua- Southern California Office: 6060 Center Drive, Suite Affiliated offices nationwide. tions related to mergers and acquisitions, buy-sell 825, Los Angeles, CA 90045, (888) 240-5184, (310) agreements, purchase/sale of closely held businesses, 216-1400, fax (310) 216-0800. Northern California NANCY A. KEARSON, CPA, ABV, CVA, DABFA partner disputes, etc. Our forensic accounting experts Office: 1485 Enea Court, Suite 1330, Concord, CA 1801 Century Park East, Suite 2400, Los Angeles, CA assess the amount of an economic loss, whether it be 94520, (925) 674-3668, fax (925) 674-3669. Web site: 90067, (310) 785-9614, fax (310) 277-1278, e-mail: business interruption from casualty, unfair competition, www.dmavalue.com. Contact Wes Nutten, Aaron [email protected]. Contact Nancy Kearson. condemnation, damage caused by others, or loss of Amster or Madeleine Mamaux. Litigation consulting, Specialties: solid, cost-effective, timely expert witness earnings from various events. Our fraud investigation forensic accounting, expert witness testimony, class and consultation services, investigative forensic ac- team reviews documentation, interviews witnesses and action claims administration services, and business counting, asset tracing, loss of earnings calculations, suspects, and assesses evidence to resolve allega- valuation services. Staff qualifications include CPA, partnership and shareholder disputes, business valuations. We provide expert witness testimony and imple- CMA, ABV, CFA and ASA designations. Testimony ex- tion, and professional practice appraisal. Director, ment fraud prevention programs. VLS Celebrates Over perience in numerous court jurisdictions. Established in California Society of CPAs-LA. Immediate past officer, 50 Years of Quality Service! 1968. See display ad on page 57. Family Law Section; former chair, Family Law Confer- ence. Licenses: Certified Public Accountant; Accredited WHITE, ZUCKERMAN, WARSAVSKY, LUNA, FULCRUM FINANCIAL INQUIRY LLP in Business Valuation, Certified Valuation Analyst, diplo- WOLF & HUNT 1000 Wilshire Boulevard, Suite 1650, Los Angeles, mate of the American Board of Forensic Accountants. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 90017, (213) 787-4000, fax (213) 787-4144, CA 91423, (818) 981-4226, fax (818) 981-4278, and e-mail: [email protected]. Web site: www MIOD AND COMPANY, LLP CPAs 333 City Boulevard West, 17th Floor, Orange, CA .fulcruminquiry.com. Contact David Nolte. Our analy- 11600 Indian Hills Road, Building B, Suite 300, Mission 92868, (714) 939-1781, fax (714) 938-3874, e-mail: sis and research combined with unique presentation Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- [email protected]. Contact Barbara Luna, Drew techniques have resulted in an unequaled track record 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA Hunt, Paul White, Jack Zuckerman, Fred in successful court cases and client recoveries. Our 92260, (760) 779-0990, fax (760) 779-0960, e-mail: Warsavsky, and Bill Wolf. Expert witness testimony personnel are full-time and focused on the services we [email protected]. Visit our Web site at www for business, real estate, personal injury, and marital provide. We incorporate technology into our work to .miod-cpa.com. Contact Donald John Miod, CPA, dissolution. Investigative analysis of liability, damage provide great results at a more reasonable cost. Our ABV, CVA, CBA. More than 30 years’ experience in liti- analysis of lost profits, lost earnings, and unjust enrich- expertise encompasses damages analysis, lost profit gation support, including computation of income avail- ment, fraud investigation, business valuation, tax plan- studies, business and intangible asset valuations, fraud able for support, tracing, business valuations, fraud in- ning and preparation and mergers and acquisitions. investigations, forensic economic analysis, analysis of vestigations, earnings loss calculations, and income Hundreds of times as expert witnesses. Prior “big four” computerized data, and computer forensics. See dis- tax matters. Our firm is very computer-oriented, involv- accounting firm experience. Specialties include ac- play ad on page 2. ing the use of computer graphics. We are members of counting, antitrust, breach of contract, business inter- the Institute of Business Appraisers, the International ruption, business dissolution, construction, fraud inves-

58 LOS ANGELES LAWYER / APRIL 2004 tigation, asset tracing analysis, intellectual property, (patent, trademark and copyright infringement and trade secrets), product liability, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 53. G. GOVINE CONSULTING CHEMISTRY CHEMICAL ACCIDENT RECONSTRUCTION Developing the Workforce for the 21st Century SERVICES, INC. 9121 East Tanque Verde Road, Suite 105, Tucson, AZ LITIGATION CONSULTANT 85749, (800) 645-3369, fax (520) 749-0861, e-mail: AND EXPERT WITNESS: [email protected]. Web site: www.chemaxx.com. Contact Dr. Michael Fox. Comprehensive chemical EMPLOYMENT accident investigation—specializing in complex industrial chemical accidents and chemical-related con- PECIALIZES IN sumer product injuries, chemical fires and explosions, S : chemical labeling, chemical packaging, chemical han- ✔ SEXUAL HARASSMENT dling and shipping, chemical burns, hot liquid burns, ✔ MPLOYMENT ISCRIMINATION chemical warnings, chemical disposal, chemical E D : safety, EPA, DOT, OSHA, propane, natural gas, flam- AGE, RACE, SEX mable liquids, hazardous chemicals, aerosols, metal- ✔ lurgy, corrosion, failure analysis, water contamination, HUMAN RESOURCES AND water testing, plastics, acids, alkalis, and MSDSs. EMPLOYMENT PRACTICES State-of-the-art equipment available, including natural ✔ RONGFUL ERMINATION SEM/EDAX, GC/MS, FTIR, etc. PhD physical chemistry, W T certified fire and explosion investigator, NACE accred- ✔ DEPOSITION PREPARATION ited in corrosion, OSHA HAZWOPER certified (haz- ✔ ardous chemicals), DOT certified (shipment of haz- MEDIATION ardous materials), accredited in aerosol technology. DR. GERDA GOVINE COMPUTER FORENSICS 260 N. MAR VISTA, SUITE NO. 2 DATACHASERS, INC. PASADENA, CA 91106 P.O. Box 2861, Riverside, CA 92516-2861, (877) Data Exam, (877) 328-2392, (909) 780-7892, fax (909) 780- TEL: 626/564-0502 9199, e-mail: [email protected]. Web site: www FAX: 626/564-8702 .dataChasers.com. Contact Rick Albee. Hard drive 800-564-0501 imaging, use assessment and auditing, intellectual property and trade secret disputes, restore hidden, www.govineconsults.com deleted, or lost files and images, file dates when created, modified, or deleted, Internet history and e-mail recovery, computer use auditing and evaluations, human resources, employer/employee exams, experienced expert witness and special master and full computer laboratory. Many years public sector experience. Multiple certifications. Prior law enforcement. See display ad on page 10.

INSYNC CONSULTING GROUP, INC. Confidence At The Courthouse. 10866 Wilshire Boulevard, Suite 500, Los Angeles, CA Business litigation is increasingly complex. That is why we believe valuation 90024, (310) 446-8600, fax (310) 446-8601, e-mail: [email protected]. Web site: www.INSYNCusa issues must be addressed with the same meticulous care .com. Contact Scott Cooper, CMC. For over 20 years, as legal issues. Analysis must be clear. Opinions must be INSYNC has provided national electronic discovery defensible. Expert testimony must be thorough and and computer forensics services for clients including articulate. HML has extensive trial experience and can the White House, the US Department of Justice, and provide legal counsel with a powerful resource for expert major national legal and corporate ﬁrms. Our proprietary methodology and tools empower our experts to testimony and litigation support. deliver extensive and winning results to our clients. IN- SYNC has been certiﬁed in federal and state courts as an expert witness, special master and court-appointed For More Information Call 213-617-7775 referee; and its professionals include CPAs, CMCs, Or visit us on the web at www.hmlinc.com MCSEs, CCAs, and CNEs. See display ad on page 20. BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS

LOS ANGELES LAWYER / APRIL 2004 59 COMPUTER SIMULATIONS/GRAPHIC “Mr. Truck” VISUAL FORENSICS (800) 426-6872, 130 Ryan Industrial Court, Suite 105, ACCIDENT San Ramon, CA 94583. Web site: www.visualforensics ACCIDENT .com. 3D computer simulations for all aspects of acci- INVESTIGATION and RECONSTRUCTION dent reconstruction, vision related malpractice, criminal reenactment, and more. Vision perception, site visibil- ✔ Court Qualified Expert Witness Regarding ity, and human factors analysis. Opposing demonstra- Car vs Car, Car vs Bicycle, Truck vs Car Cases tive evidence analysis. In-house scientific and engi- ✔ neering experts. Led by internationally recognized Low Speed Accident Analysis vision scientist, Dr. Arthur P. Ginsburg, who has over ✔ Trucking Industry Safety and Driver Training Issues 12 years of experience as a vision and visibility expert ✔ Power Point Court Presentations consultant for the legal industry and government agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes William M. Jones 800 337 4994 and Court TV. See display ad on page 81. P. O. Box 398 925 625 4994 Brentwood CA 94513-0398 Pager 510 840 4627 COMPUTERS/INFORMATION [email protected] www.mrtruckar.com Fax 925 625 4995 SCIENCES COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove Construction William C. Sterling & Kelley Roberts @computer.org. Web site: www.cosgrovecomputer 66 YEARS EXPERIENCE .com. Contact John Cosgrove. John Cosgrove, PE, has over 40 years’ experience in computer systems Forensics Offices in Orange & San Diego serving Calif. Ariz. & Nevada and has been a self-employed, consulting software engineer since 1970. He is a part-time lecturer in the Waterproofing Trial Preparation Elastomeric Coating Concrete UCLA School of Engineering and LMU graduate school. He recently completed an invited article, “Soft- Coatings Cost Estimating Epoxy & Chemical Grouting Masonry ware Engineering & Litigation,” for the Encyclopedia of Membranes E.I.F.S. Above & Below Grade W.P. Stucco Software Engineering. He holds the CDP, is a member Expert Witness Structural Rehab (Structural & Invasive Tests of ACM, NSPE, a senior member of IEEE Computer So- Soil Stabilization (No Excavation Reinforcing Steel) Bentonite ciety, and a professional engineer in California. Formal education includes a BSEE from Loyola University and Investigation Waterproofing) a master of engineering from UCLA.

TRIAL AND ARBITRATION PROVEN INSYNC CONSULTING GROUP, INC. 10866 Wilshire Boulevard, Suite 500, Los Angeles, CA 800-559-0933 • 858-538-8798 • Fax 858-538-8690 90024, (310) 446-8600, fax (310) 446-8601, e-mail: [email protected]. Web site: www.INSYNCusa .com. Contact Scott Cooper, CMC. For over 20 years, INSYNC has provided national electronic discovery and computer forensics services for clients including the White House, the US Department of Justice, and major national legal and corporate firms. Our proprietary methodology and tools empower our experts to THE BEST LEGAL MINDS deliver extensive and winning results to our clients. IN- SYNC has been certified in federal and state courts as IN THE COUNTRY an expert witness, special master and court-appointed referee; and its professionals include CPAs, CMCs, TALK TO US MCSEs, CCAs, and CNEs. See display ad on page 20. COMPUTERS/INFORMATION SECURITY ONLINE SECURITY 5870 West Jefferson Boulevard, Suite A, Los Angeles, ¥ Metallurgical Failures ¥ Bio-Medical/Orthopedic Implants CA 90016, (310) 815-8855, fax (310) 815-8808, e-mail: ¥ Corrosion & Welding Failures ¥ Plumbing/Piping/ABS Failures [email protected]. Web site: www.onlinesecurity .com. Contact Glen Hastings. At OnlineSecurity our ¥ Glass & Ceramic Failures ¥ Complete In-House Laboratory mission is protecting digital assets worldwide through ¥ Chairs / Ladders / Tires Testing & Analysis Facilities three interlocking service lines: IT forensic, consulting and investigations, and information security. Our IT ¥ Automobile/Aerospace/ ¥ Expert Witnesses/Jury Verdicts forensic practice includes computer and network forensics and forensic evidence harvesting. Our consulting Accidents ¥ Licensed Professional Engineers and investigations practice includes discovery strategy and expert witness testimony. Information security provides computer security and compliance consulting Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE services to our clients. See display ad on page 67. Dr. Ramesh Kar, Fellow ASM, Fellow ACFE CONSTRUCTION ABACUS PROJECT MANAGEMENT, INC. 20201 Southwest Birth Street, Suite 240, Newport Beach, CA 92660, (949) 851-1015, fax (949) 851-0409, ADVANCED MATERIALS, INC. e-mail: jfl[email protected]. Web site: www Testing & Research Labs .abacuspm.com. Contact John Flynn. Expert witness. Cost estimation, construction management analysis, 2528 W. Woodland Drive delay analysis, and professionally trained mediator and Anaheim, CA 92801 arbitrator. Lead expert with over 40+ years’ experience ■ TEL: (714)527-7100 in construction industry. Testified on 20 occasions in superior court. ■ FAX: (714)527-7169 ■ www.karslab.com ■ email: [email protected] ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail:

60 LOS ANGELES LAWYER / APRIL 2004 [email protected]. Contact Thomas A. Tarter, record of dedication to quality construction and pro- enced in all types of construction projects. See display managing director. Former CEO of two banks. Lend- fessional excellence. Our service areas are: architec- ad on page 83. ing, forgery, endorsements, letters of credit, guaran- tural design, civil engineering, electrical engineering, tees, lender liability, checking accounts, credit cards, geotechnical engineering, mechanical engineering, CONSTRUCTION CLAIMS and bankruptcy. Expert witness, litigation consulting. structural engineering, building construction, construc- Expert referral service escrow, corporate governance, tion program management, inspections and code en- ROEL CONSULTING GROUP mortgage banking, and real estate. Over 500 cases na- forcement, construction supervision, cost estimating, A Division of Roel Construction Company tionally. See display ad on page 81. construction quality control programs, critical path 3366 Kurtz Street, San Diego, CA 92110, (619) 297- method (CPM) scheduling, risk management, value 4156, ext. 303, fax (619) 297-5510, e-mail: stevegr@roel CONSTRUCTION FORENSICS engineering, and peer review. We specialize in provid- .com. Web site: www.roel.com. Contact Steve 13823 Kerry Lane, San Diego, CA 92130, (858) 538- ing professional services for attorneys and insurance Grimes. Backed by 87 years of construction experi- 8798, fax (858) 538-8690, e-mail: [email protected]. companies with claims mitigation, forensic expert wit- ence, the Roel Consulting Group offers a single source Contact William C. Sterling or Kelley Roberts. nesses and litigation support, demonstrative evidence, for tightly coordinated high-quality expert services. Our Specialists in above - and below-grade waterproofing, and multimedia trial presentations. See display ad on staff includes experts in virtually every field of construc- structural waterproofing (no excavation required) page 17. tion specialization. We offer a wide variety of services water/moisture intrusion issues. Structural epoxy injec- to assist attorneys and their clients, including testing, tion, pressure and chemical grouting, decks, and coat- PACIFIC CONSTRUCTION CONSULTANTS, INC. intrusive investigations, reports, cost of repair analysis, ings. Claims analysis/litigation, cost estimating, and ex- (800) 655-PCCI. Contact marketing director. Con- mediation and litigation support. Serving California, pert witness testimony. Invasive investigation and test- struction contract disputes (claims) analysis, prep and Nevada, Arizona, Oregon, New Mexico and Utah. See ing. E.I.F.S. wall systems, and concrete and stucco. presentation, delay and monetary impact evaluation, display ad on page 63. Trial and arbitration proven. Sixty-six years’ experience. including CPM schedules. Architectural, civil, struc- California licenses Gen. Contr. (B) Engineering (A) six tural, mechanical, and electrical specialties. Full in- CONSTRUCTION INVESTIGATIONS sub. Contr. lic. See display ad on page 60. house courtroom visual exhibit preparation. Assistance DELOITTE & TOUCHE LLP in negotiations, mediation, arbitration, and litigation. FORENSISGROUP Expert witness testimony. Additional phone (310) 337- 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: 3452 East Foothill Boulevard, Suite 1160, Pasadena, 3131 or (916) 638-4848. See display ad on page 56. [email protected]. Contact Michael Spindler, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) (213) 688-4135. Mimi Justice, (714) 436-7026, or 795-1950, e-mail: [email protected]. Web PCMI The Expert Choice® Tom Hughes, (619) 237-6583. Our highly skilled team site: www.forensisgroup.com. Contact Mercy Steenwyk. 2402 Cross Street, Riverside, CA 92503, (800) 576- is composed of a diverse group of practitioners— Thousands of our clients have gained the technical ad- 7264, fax (888) 307-7264, e-mail: [email protected], CPAs, certified fraud examiners, statisticians, econo- vantage and the competitive edge in their cases from Web site: www.pcmi.biz. Contact Scott Vivian, CEO. mists, computer forensic experts, business valuation our resource group of high-quality experts in construc- PCMI is a construction consulting firm providing litiga- experts, and online research specialists. We also em- tion, engineering, product liability, safety, environmen- tion, mediation, and court testimony since 1982 for ploy former senior law enforcement officials and agents tal, accident reconstruction, automotive, failure analysis, construction defects, delay claims, breach of contract, from the FBI and other government agencies. Services fires, explosions, slip and fall, real estate, economics, and personal injury. Our in-house staff of experts in- available worldwide. appraisal, employment, computers, and other technical clude such specialty fields as architecture, roofing and and scientific disciplines. We provide you with a select waterproofing, mechanical and plumbing, structural KPA ASSOCIATES, INC. group of high-quality experts as expeditiously as possi- engineering, electrical, building safety, and cost esti- 3033 Fifth Avenue, Suite 100, San Diego, CA 92103, ble. Unsurpassed recruitment standards. Excellent mating, general contracting, with a strong emphasis in (619) 725-0980, fax (619) 725-0988, e-mail: r.tov client service. See display ad on page 57. community developments. PCMI has provided expert @kpaa.com. Web site: www.kpaa.com. Contact Ron services since 1982 for both plaintiff and defense. See Tov. Architectural expert witness and consulting ser- KENNETH C. GIBBS display ad on page 69. vices for construction defect and personal injury 2029 Century Park East, 34th Floor, Los Angeles, CA claims, including investigation, mediation, arbitration, 90067, (310) 552-3400, fax (310) 552-0805, e-mail: RIMKUS CONSULTING GROUP, INC. and trial testimony on architecture, building codes, [email protected]. Web site: www.gglt.com. Contact 333 City Boulevard West, Suite 1805, Orange, CA construction, standards of care, responsibility alloca- Kenneth C. Gibbs. Expert regarding construction law, 92868, (877) 978-2044, fax (714) 978-2088, e-mail: tion, and repair solutions. Experience from over 1,000 including delay, disruption and acceleration claims, [email protected]. Web site: www.rimkus.com. investigations, ranging from custom homes to complex mechanic’s liens and licensing, and attorney’s stan- Contact Joe Rowland. Rimkus Consulting Group is a 1,500 unit residential projects and nonresidential build- dard of care issues regarding same. See display ad full-service forensic consulting firm. Since 1983, we ings, enables KPA Associates to develop innovative on page 17. have provided reliable investigations, reports and ex- and cost-effective solutions to construction-related dis- pert witness testimony around the world. Our engineers putes. Architects licensed in California, Nevada, Ari- GLENN M. GELMAN & ASSOCIATES, and consultants analyze the facts from origin and zona, and Colorado. See display ad on page 69. CERTIFIED PUBLIC ACCOUNTANTS AND cause through extent of loss. Services: mold evalua- BUSINESS CONSULTANTS tions, indoor air quality assessments, biomechanical 1940 East 17th Street, Santa Ana, CA 92705, (714) analysis, product failure analysis, fire cause and origin, CORPORATE INVESTIGATIONS 667-2600, fax (714) 667-2636. Web site: www.gmgcpa property evaluations, foundation investigations, indus- DELOITTE & TOUCHE LLP .com. Contact Glenn Gelman. Expert witness testi- trial accidents and explosions, vehicle accident recon- 350 South Grand Avenue, Los Angeles, CA 90071, mony, strategy development, document discovery, struction, water intrusion analysis, geotechnical evalua- (213) 688-4135, fax (213) 673-6719, e-mail: mspindler deposition assistance, computation of damages, arbi- tions, construction accidents, construction defect @deloitte.com. Contact Michael Spindler, (213) 688- tration consulting, forensic accounting, investigative analysis, construction disputes, financial analysis and 4135. Mimi Justice, (714) 436-7026, or Tom Hughes, auditing, rebuttal testimony, fiduciary accountings, assessments, forensic accounting, HVAC analysis, (619) 237-6583. Our highly skilled team is composed of and trial exhibit preparation. electrical failure analysis, and video/graphics computer a diverse group of practitioners—CPAs, certified fraud animation. See display ad on page 73. examiners, statisticians, economists, computer forensic LAWNETINFO.COM/HANK KRASTMAN, PhD, JD experts, business valuation experts, and online re- 20610 Romar Street, Chatsworth, CA 91311, (818) 727- ULTIMO ORGANIZATION, INC. search specialists. We also employ former senior law 1147, fax (818) 727-1723, e-mail: krastman@earthlink 1411 East Borchard Avenue, Santa Ana, CA 92705, enforcement officials and agents from the FBI and other .net. Web site: www.lawnetinfo.com. Contact Hank (714) 560-8999, fax (714) 560-8998, e-mail: yolana government agencies. Services available worldwide. Krastman. Retired LA city building inspector/investiga- @geotechnical.com. Web site: www.geotechnical.com. tion, reports, deposition analysis, inverse condemna- Contact Frank Ultimo. Estimating cost of repair of construction defects. Hands-on construction experi- CORRECTIONS CONSULTING/ tion cases, construction defects, building department PRISON/STREET GANGS issues, zoning issues, injuries on properties, fire, slip ence both commercial and residential for 40+ years’ and fall, landslides, electrocution, discovery, construc- experience involving analysis design and construction CORRECTIONS CONSULTING & tion consulting, permit expediting, drafting services, en- include foundation floor-level surveys, repair plans, and INVESTIGATIVE SERVICES gineering services, design services, and anything else drawing, also waterfront expertise, and environmental P.O. Box 3915, Antioch, CA 94531-3915, (925) 777- related to the construction industry. Attorney’s Guide to remediation, structural engineering, geotechnical in- 9534, fax (925) 777-9534, cell: (925) 550-0787, e-mail: UBC Building Code. See display ad on page 24. vestigation, codes, and accurate documentation and [email protected]. Web: www.expertwitness.com. estimates. See display ad on page 68. Contact Daniel B. Vasquez. With over 36 years of MP GROUP California corrections experience: 30 years, California 1202 Greenacre Avenue, West Hollywood, CA 90046- URS Department of Corrections, 4 years of Santa Clara 5708, (323) 874-8923, fax (323) 874-8948, experts 911 Wilshire Boulevard, Suite 1800, Los Angeles, CA County Jail Director of Correction, private corrections, @mpgroup.com. Web site: www.mpgroup.com. 90017, (213) 996-2549, fax (213) 996-2521, e-mail: consulting, and prison warden operations, past experi- Contact Michael S. Poles, GC, CM, RCI, DABFET, [email protected]. Expert witness for ence in a variety of contemporary correctional issues, ACFE. Established in 1962, MPGroup is a full-service entitlement, causation damages on design, construc- including nationwide consulting experience since construction and consulting firm, with a 40-year track tion, and geotechnical environmental disputes. Experi- 1986. CV with list of references available upon request.

LOS ANGELES LAWYER / APRIL 2004 61 CREDIT DAMAGE GEORG FINDER 2501 East Chapman Avenue, Suite 100, Fullerton, CA 92831, (714) 441-0900, e-mail: gﬁ[email protected]. Web site: www.creditdamageexpert.com. Contact Georg Finder. Defense/plaintiff. Consultant/expert witness testimony plus credit damage report reveals, change of creditworthiness, lost of capacity, loss of expectancy, in cases of fraud, breach of contract, bad faith insurance, negligence, wrongful termination, identity theft, malpractice, PI, divorce, creditor or credit bureau error. Very different than the service of an econo- mist, or CPA. Often increases plaintiff case value by 400% plus. May reduce defense liability by 90%. CV: Director of Curr Financial Education Academy: Author of 3 MCLE seminars; credit reports: misconceptions and realities; credit reports: compliance and opportunity; credit damage: evaluation and compensation. Numerous publications.

CRIMINOLOGY/GANGS DR. LEWIS YABLONSKY 2311 Fourth Street, Suite 312, Santa Monica, CA 90405, phone and fax: (310) 450-3697, e-mail: [email protected]. Web site: www .lewyablonsky.com. Contact Dr. Lewis Yablonsky, PhD -NYU. Emeritus professor criminology, California State University Northridge. Professor at other universities, including UCLA, University of Massachusetts, Harvard, Texas A&M, and Columbia University. Pub- lished 18 books on criminology and social problems, including Criminology (1990); Gangsters: 50 Years of Madness, Drugs, and Death on the Streets of America (1997), and Juvenile Delinquency (2000). Consultant/ expert witness in over 130 legal cases in various areas of criminality, especially gangs. Also homicide, drug addiction, company security liability, and responsibility. See Web site. Appointed as an expert witness in over 80 courts in California and on a national level.

DISPUTE ANALYSIS DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite GARY ORDOG, MD 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Of- (FACEP, FAACT, FABME, FABFE, FABPS) fice: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www .dmavalue.com. Contact Wes Nutten, Aaron Amster 23206 LYONS AVE., SUITE 104, SANTA CLARITA, CA 91321 or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action PHONE: (661) 799-1689 ■ FAX: (661) 799-3453 claims administration services, and business valuation E-MAIL: [email protected] ■ WEBSITE: http://dwp.bigplanet.com/toxic services. Staff qualifications include CPA, CMA, ABV, CFA and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See Board Certified in: display ad on page 57.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA, ■ ■ American Board of Professor of Medicine, UCLAÐ WOLF & HUNT Emergency Medicine 1985-1997 14455 Ventura Boulevard, Suite 300, Sherman Oaks, ■ American College of Emergency ■ Board Examiner, American CA 91423, (818) 981-4226, fax (818) 981-4278, and 333 City Boulevard West, 17th Floor, Orange, CA Physicians Board of Emergency Medicine, 92868, (714) 939-1781, fax (714) 938-3874, e-mail: ■ American Academy of Clinical 1984-2000 [email protected]. Contact Barbara Luna, Drew Toxicology ■ 25 years experience Hunt, Paul White, Jack Zuckerman, Fred ■ ■ Warsavsky, and Bill Wolf. Expert witness testimony American Board of Medical Full-time, front-line physician for business, real estate, personal injury, and marital Toxicology ■ 42 text books dissolution. Investigative analysis of liability, damage ■ American Board of Forensic ■ analysis of lost proﬁts, lost earnings, and unjust enrich- 800+ Articles ment, fraud investigation, business valuation, tax plan- Examiners ■ 2,000+ cases reviewed ning and preparation and mergers and acquisitions. ■ American Board of Medical ■ 300+ depositions Hundreds of times as expert witnesses. Prior “big four” Examiners accounting ﬁrm experience. Specialties include ac- ■ 100+ trials counting, antitrust, breach of contract, business inter- ■ American Board of ■ Stachybotrys, mold ruption, business dissolution, construction, fraud inves- Psychological Specialities tigation, asset tracing analysis, intellectual property (Traumatic Stress and Disability ■ Criminal and civil; defense & (patent, trademark and copyright infringement and Assessment) plaintiff 50/50 trade secrets), product liability, real estate, spousal support, tax, valuation of businesses, unfair advertis- ■ Medical consultation and ■ Residency and Fellowship ing, unfair competition, and wrongful termination. See trained treatment, case review, expert display ad on page 53. witness

62 LOS ANGELES LAWYER / APRIL 2004 ECONOMIC DAMAGES in matters involving business disputes, goodwill, eco- You r nomic damages, loss of earnings and profits, fraud and BALLENGER, CLEVELAND & ISSA, LLC embezzlement, forensic accounting, business valua- 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA tion, marital dissolution, legal and accountants’ mal- 90024, (310) 873-1717, fax (310) 873-6600. Contact Single Source practice, wrongful termination, intellectual property, Bruce W. Ballenger, CPA, executive managing and bankruptcy. Member of Voir Dire Partners, LLC. director. Services available: assist counsel in deter- Affiliated offices nationwide. for construction-related mining overall strategy. Help evaluate depositions and investigations and litigation support. evidence. Provide well-prepared, well-documented, SANLI PASTORE & HILL, INC. and persuasive in-court testimony regarding compli- 1990 South Bundy Drive, Suite 800, Los Angeles, CA cated accounting, financial, and business valuation 90025, (310) 571-3400, fax (310) 571-3420, Web site: matters, fairness of interest rates, feasibility of reorgani- www.sphvalue.com. Contact Nevin Sanli or Tom zation plans, fraudulent conveyances, bankruptcies, Pastore. Sanli Pastore & Hill, Inc. is a premier provider mergers and acquisitions, and management misfea- of business valuation and valuation advisory services, sance/malfeasance. More than 100 open-court testi- specializing in litigation support and expert witness tes- monies, federal and state, civil and criminal. See dis- timony. Services include valuations for goodwill loss, play ad on page 64. estate and gift tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, DELOITTE & TOUCHE LLP goodwill impairment, fairness and solvency opinions, 350 South Grand Avenue, Los Angeles, CA 90071, ESOPs, incentive stock options, capital raises, corpo- (213) 688-4135, fax (213) 673-6719, e-mail: mspindler rate, partnership, and marital dissolutions. Comprehen- @deloitte.com. Contact Michael Spindler, (213) 688- sive economic, industry, and market research. Exten- 4135. Mimi Justice, (714) 436-7026, or Tom Hughes, sive experience in expert witness testimony, pretrial (619) 237-6583. Our highly skilled team is composed of preparation, and settlement negotiations. See display a diverse group of practitioners—CPAs, certified fraud ad on page 57. examiners, statisticians, economists, computer forensic Consulting Services experts, business valuation experts, and online re- SCHULZE HAYNES & CO. Our experienced experts/consultants search specialists. We also employ former senior law 660 South Figueroa Street, Suite 1280, Los Angeles, ensure a coordinated, cost-effective, enforcement officials and agents from the FBI and other CA 90017, (213) 627-8280, fax (213) 627-8301, multi-disciplined approach to visual and government agencies. Services available worldwide. e-mail: [email protected]. Web site: www .schulzehaynes.com. Contact Karl J. Schulze or intrusive site investigations, document ECON ONE RESEARCH, INC. Dana Haynes, principals. Specialties: forensic busi- review, research and analysis of code and 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, ness analysis and accounting, lost profits, economic industry standards issues, cost estimates, (213) 624-9600, fax (213) 624-6994, e-mail: lskylar damages, expert testimony, discovery assistance, @econone.com. Web site: www.econone.com. business and real estate valuations, construction arbitration, mediation, and courtroom Contact Lisa Skylar, general manager. Econ One is claims, corporate recovery, real estate transactions, testimony involving: an economic research and consulting firm of over 40 financial analysis and modeling, major professional professionals with extensive experience with the litiga- organizations, and have experience across a broad Construction Defects tion process. We understand the need for clear, accu- spectrum of industries and business issues. Degrees/ rate, persuasive answers to complex problems. We icenses: CPA; CVA; CFE; CMA; certified appraiser, PE; Delay and Disruption Claims work with our clients to keep our efforts focused on RE broker. necessary tasks, with close attention to costs. We pro- Insurance Investigation vide economic analysis and expert testimony in many VICENTI, LLOYD & STUTZMAN LLP Personal Injury/Safety areas, including: antitrust, contract disputes, damages 2210 East Route 66, Glendora, CA 91740, (626) 857- analysis/calculations, intellectual property and patent 7300, fax (626) 857-7302, e-mail: rstutzman@vlsllp ADA Auditing and Compliance infringement, market analysis, regulation, stock price .com. Web site: www.vlsllp.com. Contact Royce Contractual Disputes analysis and unfair competition. Industry specialties in- Stutzman, CVA, CPA, Chairman. Our certified profes- clude energy, biotechnology, computer hardware and sionals serve as consultants and experts in business Error & Omission Claims software, manufacturing, telecommunications, and fi- valuations and litigation support. We conduct valua- nancial services. tions related to mergers and acquisitions, buy-sell agreements, purchase/sale of closely held businesses, FULCRUM FINANCIAL INQUIRY LLP partner disputes, etc. Our forensic accounting experts Surety Claims Services 1000 Wilshire Boulevard, Suite 1650, Los Angeles, assess the amount of an economic loss, whether it be CA 90017, (213) 787-4000, fax (213) 787-4144, Complete surety support, including initial business interruption from casualty, unfair competition, exposure analysis, project takeover and e-mail: [email protected]. Web site: www condemnation, damage caused by others, or loss of .fulcruminquiry.com. Contact David Nolte. Our analy- earnings from various events. Our fraud investigation completion, claims packaging and sis and research combined with unique presentation team reviews documentation, interviews witnesses and resolution, and subrogation and recovery. techniques have resulted in an unequaled track record suspects, and assesses evidence to resolve allega- in successful court cases and client recoveries. Our tions. We provide expert witness testimony and imple- personnel are full-time and focused on the services we ment fraud prevention programs. VLS Celebrates Over Takeovers and Completions provide. We incorporate technology into our work to 50 Years of Quality Service! provide great results at a more reasonable cost. Our Exposure Analysis expertise encompasses damages analysis, lost profit WHITE, ZUCKERMAN, WARSAVSKY, LUNA, Payment Bond Claim Reconciliations studies, business and intangible asset valuations, fraud WOLF & HUNT Construction Claims/Packaging and investigations, forensic economic analysis, analysis of 14455 Ventura Boulevard, Suite 300, Sherman Oaks, computerized data, and computer forensics. See dis- CA 91423, (818) 981-4226, fax (818) 981-4278, and Resolution play ad on page 2. 333 City Boulevard West, 17th Floor, Orange, CA Dispute Resolution 92868, (714) 939-1781, fax (714) 938-3874, e-mail: HIGGINS, MARCUS & LOVETT, INC. [email protected]. Contact Barbara Luna, Drew Litigation Support 800 South Figueroa Street, Suite 710, Los Angeles, Hunt, Paul White, Jack Zuckerman, Fred CA 90017, e-mail: [email protected]. Web site: www Warsavsky, and Bill Wolf. Expert witness testimony Expert Witness Testimony .hmlinc.com. Contact Mark C. Higgins, ASA, presi- for business, real estate, personal injury, and marital Computerized Document Control dent. The firm has over 20 years of litigation support dissolution. Investigative analysis of liability, damage and expert testimony experience in matters involving analysis of lost profits, lost earnings, and unjust enrich- business valuation, economic damages, intellectual ment, fraud investigation, business valuation, tax plan- property, loss of business goodwill, and lost profits. ning and preparation and mergers and acquisitions. Areas of practice include business disputes, eminent Hundreds of times as expert witnesses. Prior “big four” domain, bankruptcy, and corporate and marital disso- accounting firm experience. Specialties include ac- lution. See display ad on page 59. counting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud inves- KAPLAN ABRAHAM BURKERT & COMPANY tigation, asset tracing analysis, intellectual property, www.roel.com / 800.662.7635 Forensic valuation consultants. 5950 Canoga Avenue, (patent, trademark and copyright infringement and Suite 200, Woodland Hills, CA 91367, (818) 888-0066, California / Arizona / Nevada trade secrets), product liability, real estate, spousal Utah / New Mexico / Oregon fax (818) 888-8860. Contact Michael G. Kaplan, CPA, support, tax, valuation of businesses, unfair advertis- CVA, CFFA. Expert witness services and preparation CA Lic. # 184531-B1

LOS ANGELES LAWYER / APRIL 2004 63 ■ EVALUATION ing, unfair competition, and wrongful termination. See display ad on page 53. ■ TESTING ECONOMICS ■ TREATMENT ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, Neurology and (949) 263-8700, fax (949) 263-0770, e-mail: info @mcsassociates.com. Web site: www.mcsassociates Electromyography .com. Contact Norman Katz, managing partner. Neurotoxicology Nationally recognized banking, ﬁnance, and real estate consulting group (established 1973). Experienced liti- Occupational/Environmental gation consultants/experts include senior bankers, Medicine lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real TEL 415.381.3133 / FAX 415.381.3131 estate, business/commercial, construction, consumer/ credit card), banking operations/administration, trusts E-MAIL [email protected] and investments, economic analysis and valuations/ www.neoma.com damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance. San Francisco COHEN, MISKEI & MOWREY LLP Sacramento 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: Petaluma [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experi- Richmond ence, litigation support and expert testimony regarding Eureka forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 24.

DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler JONATHAN S. RUTCHIK, MD, MPH @deloitte.com. Contact Michael Spindler, (213) 688- 4135. Mimi Justice, (714) 436-7026, or Tom Hughes, 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certiﬁed fraud examiners, statisticians, economists, computer forensic experts, business valuation experts, and online research specialists. We also employ former senior law enforcement officials and agents from the FBI and other government agencies. Services available worldwide.

ECON ONE RESEARCH, INC. 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, (213) 624-9600, fax (213) 624-6994, e-mail: lskylar @econone.com. Web site: www.econone.com. Contact Lisa Skylar, general manager. Econ One is an economic research and consulting ﬁrm of over 40 professionals with extensive experience with the litigation process. We understand the need for clear, accurate, persuasive answers to complex problems. We work with our clients to 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 property and patent infringement, market analysis, regulation, stock price analysis and unfair competition. Industry specialties include energy, biotechnology, computer hardware and software, manufacturing, telecommunications, and ﬁ- nancial services.

HAMILTON, RABINOVITZ & ALSCHULER, INC. 6033 West Century Boulevard, Suite 890, Los Angeles, CA 90045, voice (310) 645-9000, fax (310) 645-8999. E-mail: [email protected]. Contact Francine Rabinovitz, PhD, executive vice president. Public policy, ﬁnance, and management consultants providing litigation support, simulation, and modeling to courts and corporate/public litigants in land use, real estate development, environmental protection, mass tort (including toxic tort), insurance, ﬁnance, housing, minority rights, education, and employment cases. Degrees/license: MBAs, PhDs, cert. planners, MPAs, MCPs.

64 LOS ANGELES LAWYER / APRIL 2004 NATIONAL ECONOMIC RESEARCH ELECTRICAL ENGINEERING ASSOCIATES, INC. CTG FORENSICS, INC. 777 South Figueroa Street, Suite 4200, Los Angeles, CA 90017, (213) 346-3000, fax (213) 346-3030. Web 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) site: www.nera.com. We create strategies, studies, 790-0010, fax (949) 790-0020, e-mail: mlewis reports, expert testimony and often, and policy recom- @CTGforensics.com. Web site: www.CTGforensics mendations that reflect our specialization in industrial .com. Contact Dr. Malcolm Lewis, PE. Construction- and financial economics. NERA economists devise related engineering, plumbing, mechanical (heating, practical solutions to highly complex business and ventilating, A/C) and electrical (power, lighting), energy legal issues arising from competition, regulation, public systems, residential and nonresidential buildings, con- policy, e-commerce, and strategic business decision struction defects, construction claims, and mold. making. We are recognized for our work in antitrust/ competition policy; market strategy and design, includ- ELECTRONIC DISCOVERY ing auction design and strategy, as well as regulation, FULCRUM FINANCIAL INQUIRY LLP valuation, risk assessment and commercial damages 1000 Wilshire Boulevard, Suite 1650, Los Angeles, and liability in areas including antitrust, intellectual CA 90017, (213) 787-4000, fax (213) 787-4144, property, labor, and securities; and product strategy e-mail: [email protected]. Web site: www and design. .fulcruminquiry.com. Contact David Nolte. Our analysis and research combined with unique presentation SANLI PASTORE & HILL, INC. techniques have resulted in an unequaled track record 1990 South Bundy Drive, Suite 800, Los Angeles, CA in successful court cases and client recoveries. Our 90025, (310) 571-3400, fax (310) 571-3420, Web site: personnel are full-time and focused on the services we www.sphvalue.com. Contact Nevin Sanli or Tom provide. We incorporate technology into our work to Pastore. Sanli Pastore & Hill, Inc. is a premier provider provide great results at a more reasonable cost. Our of business valuation and valuation advisory services, expertise encompasses damages analysis, lost profit specializing in litigation support and expert witness studies, business and intangible asset valuations, fraud testimony. Services include valuations for goodwill loss, investigations, forensic economic analysis, analysis of estate and gift tax planning (family limited partner- computerized data, and computer forensics. See dis- ships), lost profit analysis, mergers and acquisitions, play ad on page 2. goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corpo- INSYNC CONSULTING GROUP, INC. rate, partnership, and marital dissolutions. Comprehen- 10866 Wilshire Boulevard, Suite 500, Los Angeles, CA sive economic, industry, and market research. Exten- 90024, (310) 446-8600, fax (310) 446-8601, e-mail: sive experience in expert witness testimony, pretrial [email protected]. Web site: www.INSYNCusa preparation, and settlement negotiations. See display .com. Contact Scott Cooper, CMC. For over 20 years, ad on page 57. INSYNC has provided national electronic discovery and computer forensics services for clients including the EDUCATION / PUBLIC POLICY White House, the U.S. Department of Justice, and SAGE INSTITUTE, INC. major national legal and corporate firms. Our propri- 2801 Townsgate Road, Suite 213, Westlake Village, CA etary methodology and tools empower our experts to 91361, (805) 497-8557, fax (805) 496-4939, e-mail: deliver extensive and winning results to our clients. IN- [email protected]. Web site: www.sageii.com. Contact SYNC has been certified in federal and state courts as Dr. Joel Kirschenstein. Provides consulting and testi- an expert witness, special master and court-appointed mony in public policy planning and finance, supervision referee; and its professionals include CPAs, CMCs, of instruction, administrative policies and procedures, MCSEs, CCAs, and CNEs. See display ad on page 20. developer fee mitigation, school facilities planning, asset management, and employer/employee relations. EMERGENCY MEDICINE SPECIALIST Degrees: BA, MA, doctorate, California teaching and JOHN LEVIN, MD, INC. administrative credentials. President, Sage Institute Inc. 9779 Oak Pass Road, Beverly Hills, CA 90210, (310) 272-1101. Contact John Levin, MD. Emergency ELECTRICAL medicine specialist. Seventeen years of expert medical CONSULTANTS BUREAU, a division of consultations and testimony. Nationally recognized KASHAR TECHNICAL SERVICES, INC. expert in emergency medicine. All aspects of prehospi- tal care, paramedic and emergency department care. 5701 West Slauson Avenue, Suite 115, Culver City, CA Active teaching of paramedics, residents, and nurses. 90230, (310) 645-4404, fax (310) 645-9859, e-mail: Full-time practice of emergency medicine. Evaluation of [email protected]. Web site: www.consultantsbureau trauma and standard of care issues. Board certified. .info. Contact Myron Kayton, PhD, FIEEE. Dr. Kayton Complete expert medical consultations for plaintiff and has over 40 years of experience with industry, aero- defense. Also general and family practice evaluations. space, and consulting in the areas of mechanical, electrical, and instrumentation engineering with AVCO Re- search, C.S. Draper Labs. Litton Guidance and Control, EMPLOYMENT NASA-Johnson (deputy manager, Lunar Module Elec- BIDDLE CONSULTING GROUP, INC. tronics) and TRW Systems. He was president of the 2868 Prospect Park Drive, Suite 110, Rancho Cordova, Aerospace and Electronics Systems Society and is a CA 95670, (916) 266-6722, ext. 113, fax (916) 266- fellow of IEEE. He has had extensive experience con- 4170, e-mail: [email protected]. Web site: www.biddle sulting for both plaintiffs and defendants in patent and .com. Contact Dan Biddle, PhD, president. We spe- product liability litigation, including products such as cialize in test development, EEO/AA reviews, validation 16,000 volt oil-filled switches, advertising sign electron- studies (content, criterion-related), and adverse impact ics, automobile control modules, and avionic navigation analyses. We have a special emphasis in the protective systems. See insert in this issue. service fields. Over 30 staff. Degrees/licenses: MA, PhD, other staff with various degrees. ELECTRICAL ACCIDENTS PATRICK CARLAND G. GOVINE CONSULTING 5825 Fulton Avenue, Van Nuys, CA 91401, (818) 781- 260 North Mar Vista, Suite #2, Pasadena, CA 91106- 1640. Basic electrical theory interpretation, “general 1413, (626) 564-0502, fax (626) 564-8702, e-mail: order #95” (state law electric) electric equipment for [email protected]. Web site: www.info jury viewing. No charge for initial case appraisal. Thirty @govineconsults.com. Contact Dr. Gerda Govine. years with DWP, City of Los Angeles. Specializes in employment discrimination, wrongful termination, deposition preparation, age discrimination, communications, training and analysis, evaluation of human resource policies, practices, procedures, forms, handbooks, systems, and evaluation of sexual harass-

LOS ANGELES LAWYER / APRIL 2004 65 ment matters. Practices of employment discrimination, market/employability, lost wages/benefits, employee POWERPLANT CONSULTANTS, INC. deposition preparation, and mediation. See display ad performance, and evaluation of personnel policies and 15900 Old Valley Boulevard, La Puente, CA 91744, on page 59. practices. Nationally recognized human resource man- (626) 968-3105, fax (626) 968-1706, e-mail: cklane agement and compensation consultant, speaker, au- @gesco.org. Web site: www.powerplantconsultants HAIGHT CONSULTING thor of book and articles, university instructor. Quoted .com. Contact Christopher K. Lane. Mechanical, 1726 Palisades Drive, Pacific Palisades, CA 90272, in Los Angeles Times, Orange County Register, Busi- electrical controls engineering for failure analysis and (310) 454-2988, fax (310) 454-4516. Contact Marcia ness Week, Workforce, and Working Woman. Over 14 forensic investigations for energy facilities, power Haight. Human resources expert knowledgeable in years of testifying in cases involving major national or- plants, microburbines, diesel engines and related sys- both federal and California law. Twenty-five years’ cor- ganizations in a large variety of industries involving tems and equipment. Cogeneration, landfill, digester porate human resources management experience plus multiple plaintiffs. MBA, Certified Compensation gas, safety and performance. over 14 years as a Human Resources Compliance Professional. Consultant in California. Specializations include sexual CARL SHERIFF, PE 1 harassment, ADA/disability discrimination, other Title ENGINEERING 10153 ⁄2 Riverside Drive, Suite 365, Toluca Lake, CA VII and FEHA discrimination and harassment, retalia- 91602, (818) 766-9259, fax (818) 908-9301. Contact tion, FMLA/CFRA, safety, and wrongful termination. ACRON CONSULTING SERVICES, LLC Carl Sheriff, PE, forensic engineer. Degreed in the law Courtroom testimony and deposition experience. Re- 2830 North Swan Road, Tucson, AZ 85712, (520) 322- and engineering. Registered professional engineer in tained 60% for defense, 40% for plaintiff. Audit employ- 6150, fax (520) 327-0062, e-mail: billacorn@earthlink mechanical, controls, and safety. General contractor, er’s actions in preventing and resolving discrimination, .com. Web site: www.acs-eng.com. Contact William real estate broker, and certified building inspector. Li- harassment, and retaliation issues. Assess human re- R. Acorn. PE. Over 30 years’ experience as a consult- censed truck driver. Consulting and expert testimony sources policies and practices for soundness, for com- ing engineer providing value added technical consulta- on premises liability, product defects, and traffic acci- parison to prevailing practices, and for compliance. tion, forensic analysis, and expert testimony. Specializ- dents. Construction and industrial accidents. Building Evaluate employer responsiveness to complaints and ing in HVAC systems, cleanrooms, piping and refriger- and OSHA code compliance. Slip, trip, and falls. effectiveness of employer investigations. Assist coun- ation systems, building and fire codes, design and Human factors. Safety evaluation. Computerized analy- sel via preliminary case analysis, discovery strategy, construction issues, and hazardous occupancies. Suc- sis and exhibits. Free initial file review. examination of documents, and expert testimony. cessfully represent plaintiffs, defendants and insurers in court, arbitration and mediation settings with claims ENGINEERING/AUTOMOTIVE BRIAN H. KLEINER, PhD up to $250 million. ACS provides a unique combination Professor of Human Resource Management, California of practical, theoretical, and teaching experience to AL AXELROD, INC. State University, 800 North State College Boulevard, support your litigation needs. 22661 Crespi Street, Woodland Hills, CA 91364, (818) LH-640, Fullerton, CA 92834, (714) 879-9705, fax (714) 224-2116, fax (818) 224-2116, pager, (310) 939-3968, 879-5600. Contact Brian H. Kleiner, PhD. Specializa- CONSULTANTS BUREAU, a division of e-mail: [email protected]. Contact Al Axelrod. tions include wrongful termination, discrimination, sex- KASHAR TECHNICAL SERVICES, INC. Field: Vehicle component failure, product liability, ual harassment, ADA, evaluation of policies and prac- 5701 West Slauson Avenue, Suite 115, Culver City, CA defect analysis, and defect analysis root cause. Focus: tices, reasonable care, progressive discipline, con- 90230, (310) 645-4404, fax (310) 645-9859, e-mail: safety issues, lemon law, service and repair related ducting third-party workplace investigations, retaliation, [email protected]. Web site: www.consultantsbureau matters, insurance claims, brake systems, unintended RIFs, statistics, negligent hiring, promotion selections, .info. Contact J. W. (Bill) Jones, PhD, PE, FASME. acceleration. Special expertise: road testing, alternative CFRA/FMLA, compensation, wage and hours, ERISA, Dr. Jones’ specialties are mechanical engineering dispute resolution, vehicle-related criminal cases, workplace violence, and OSHA. Consultant to over 100 and stress analysis, including finite element analysis. fraudulent claims, fleet maintenance, fire, seat belts, organizations. Over 500 publications. Five-time winner Although he has worked on a wide variety of projects airbags/SRS. Degrees/licenses: ASE, Certified Master of CSUF Meritorious Performance Award. Extensive ex- and products, pressure vessels, microelectronic Tech, BS Cal. State. CV on request. perience giving testimony effectively. packaging and acrylic structures are particular specialties. Dr. Jones has recently returned to California ENGINEERING/GEOTECHNICAL STEPHEN J. MOREWITZ, PhD & ASSOCIATES from serving in the Office of Science and Technology COTTON, SHIRES AND ASSOCIATES, INC. 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- Policy, the executive office of the president, in Wash- 330 Village Lane, Los Gatos, CA 95030-7218, 1587, fax (818) 345-9981, e-mail: morewitz@earthlink ington, DC. In that assignment, Dr. Jones’ efforts were (408) 354-5542, (408) 354-1852, e-mail: losgatos .net. Web site: http//home.earthlink.net/~morewitz/ primarily in homeland defense, where he organized @cottonshires.com. Web site: www.cottonshires.com. Contact Dr. Steve Morewitz. Disability and sexual and chaired a working group on risk assessment and Contact Patrick O. Shires. Full service geotechnical harassment. Evaluates disability and sexual harass- the prioritizing of assets to be secured. He has been engineering consulting firm specializing in investiga- ment. Provides other experts. Eighteen years of experi- awarded a consulting contract to continue their efforts tion, design, arbitration, and expert witness testimony. ence. Professor and dean, author of three books and while remaining in California. His accomplishments Earth movement (settlement, soil creep, landslides, over 60 abstracts and articles. have been recognized by his election as a Fellow of the American Society of Mechanical Engineers. See tunneling and expansive soil), foundation distress (movement and cracking of structures) drainage and NASH AND COMPANY, INC. insert in this issue. grading (seeping slabs and ponding water in crawl- 6453 Via de Anzar, Rancho Palo Verdes, CA 90275, space), pavement and slabs (cracking and separat- (310) 831-4874, fax (310) 514-1664, e-mail: mnash484 FORENSISGROUP ing), retaining walls (movement, cracking and failures), @aol.com. Contact Michael Mark Nash, PhD. Com- 3452 East Foothill Boulevard, Suite 1160, Pasadena, pipelines, flooding and hydrology, design and con- pensation consulting. Executive comp, stock, bonus, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) struction deficiencies, expert testimony at over 55 trials salary wage, SER PS, and deferred retirement. Dis- 795-1950, e-mail: [email protected]. Web in southern and northern California and Hawaii. parate impact, reasonableness, national reputation, site: www.forensisgroup.com. Contact Mercy Steen- and 30 years experience. University of Chicago, Naval wyk. Thousands of our clients have gained the techni- Academy, and trial experience. Corporate defense cal advantage and the competitive edge in their cases ENVIRONMENTAL from our resource group of high-quality experts in con- side only please. HARGIS + ASSOCIATES, INC. struction, engineering, product liability, safety, environ- 2365 Northside Drive, Suite C-100, San Diego, CA mental, accident reconstruction, automotive, failure EMPLOYMENT/WAGE EARNING 92108, (800) 554-2744, (619) 521-0165, fax (619) 521- analysis, fires, explosions, slip and fall, real estate, eco- CAPACITY 8580, e-mail: [email protected]. Web site: www nomics, appraisal, employment, computers, and other .hargis.com. Contact David R. Hargis, PhD, RG. CALIFORNIA CAREER SERVICES technical and scientific disciplines. We provide you Expert witness testimony, technical consultation, and 6024 Wilshire Boulevard, Los Angeles, CA 90036, (323) with a select group of high-quality experts as expedi- litigation support concerning hydrogeologic assess- 933-2900, fax: (323) 933-9929, [email protected]. tiously as possible. Unsurpassed recruitment stan- ments to evaluate groundwater supply, basin studies, Web site: www.californiacareerservices.com. Contact dards. Excellent client service. See display ad on nature/extent of soil/groundwater contamination, Susan W. Miller, MA. Vocational examinations/labor page 57. source identification, identification of potentially re- market research and testimony on employability and sponsible parties, cost allocation studies, and negotia- earning capacity as well as educational options in di- HICHBORN CONSULTING GROUP tions with USEPA and state regulatory agencies involv- vorce and wrongful termination cases. 1988 North Tustin Avenue, Orange, CA 92865, ing cleanup levels and approval of RI/FS/RD/RA docu- (714) 637-7400, fax (714) 637-7488, e-mail: hichbornsr ments for various state and federal Superfund sites. PERSONNEL SYSTEMS ASSOCIATES, INC. @hichborn.com. Web site: www.hichborn.com. Con- See display ad on page 64. 7551 East Moonridge Lane, Anaheim, CA 92808, tact Geoffrey Hichborn Sr. General civil design with (714) 281-8337, fax (714) 281-2949, e-mail: specialties featuring forensic investigations of concrete PACIFIC HEALTH & SAFETY CONSULTING, INC. [email protected]. Web site: www work and concrete products, concrete, cement and re- 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253- .personnelsystems.com. Contact Mae Lon Ding, lated materials expertise, construction practices and 4065, e-mail: [email protected]. Web site: www MBA, CCP. Expert witness in employment, business materials evaluation, repair recommendations, con- .phsc-web.com. Contact Tim Morrison. Providing dispute, disability, and divorce cases involving issues struction observation, public works/residential/commer- quality consultation and expert witness for mold, bacte- of employee or owner compensation, discrimination, cial/industrial, and specially designed tests of dis- ria, lead, and asbestos. Certified training for all health wrongful termination, exemption from overtime, labor tressed materials.

66 LOS ANGELES LAWYER / APRIL 2004 and safety OSHA, AQMD and FPT regulations. See display ad on page 56. EXPERT WITNESS — Claims Consultant ZYMAX FORENSICS 71 Zaca Lane, San Luis Obispo, CA 93401-7300, OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states (805) 544-4696, fax (805) 544-8226, e-mail: forensics and qualified in state and federal courts. Expert in good faith/bad faith, @zymaxusa.com. Web site: www.zymaxforensics.com. standards and practices and standard in the industry. Specialties in Contact Alan Jeffrey, sr. geochemist. Services: environmental forensics and geochemistry consulting, liti- property/casualty construction defect, fire/water, uninsured/underinsured gation support, and expert witness testimony. Special- motorist, warehouse and cargo claims. Litigation support, case review and EXPERIENCE ties: petroleum hydrocarbon analysis, gas geochem- evaluation claim consultation, coverage review and evaluations. istry, biomarkers, PNAs, PCBs, oxygenates, fuel ID, mixing ratios, age dating, metal analysis by ICP/MS, INTEGRITY inorganic and wet chemistry, stable isotope analysis, Contact Gene Evans at E. L. Evans Associates hydrology, and geothermal analytical. See display ad HONESTY Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] on page 59.

ESCROW 3310 AIRPORT AVENUE, SUITE 2, SANTA MONICA, CALIFORNIA 90405 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 LEGAL MALPRACTICE, ETHICS AND .com. Contact Norman Katz, managing partner. Nationally recognized banking, ﬁnance, and real estate FEE DISPUTE EXPERT WITNESS consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, BOYD S. LEMON, ESQ. lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real 35 YEARS TRIAL EXPERIENCE; RETAINED EXPERT estate, business/commercial, construction, consumer/ credit card), banking operations/administration, trusts IN MORE THAN 500 CASES; FORMER MAJOR LAW and investments, economic analysis and valuations/ FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR damages assessment, insurance claims, coverages DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title in- ARBITRATOR; COURT APPOINTED MEDIATOR. surance.

EXPERT REFERRAL SERVICE 310/827-0840 • www.legalmalexpert.com CONSULTANTS BUREAU, a division of KASHAR TECHNICAL SERVICES, INC. 5701 West Slauson Avenue, Suite 115, Culver City, CA 90230, (310) 645-4404, fax (310) 645-9859, e-mail: [email protected]. Web site: www.consultantsbureau .info. Contact Lawrence Kashar, PhD, FASM. With over 60 highly competent consultants in a wide variety of technical & business related areas, the Consultants Bureau can provide you with assistance in matters involving personal injury, product liability, property damage, patent litigation, failure analysis, contaminant identiﬁcation, accident reconstruction, aviation accidents, technology transfer, launch vehicle, and satellite design, construction and operations, corporate and project management, and mergers and acquisitions. See insert in this issue.

FORENSIC EXPERT WITNESS ASSOCIATION 2402 Vista Nobleza, Newport Beach, CA 92660, (949) 640-9903, fax (949) 640-9911, e-mail: nsfox@forensic .org. Web site: www.forensic.org. Contact Norma S. Fox, executive director. Referral service and nonproﬁt professional association. Locates expert witnesses through monthly meetings, workshops, and annual conference. See display ad on page 69.

PRO/CONSUL TECHNICAL AND MEDICAL EXPERTS 1945 Palo Verde Avenue, Suite 200, Long Beach, CA 90815, (800) 392-1119, fax (562) 799-8821, e-mail: [email protected]. Web site: www.expertinfo.com. Contact Rebecca deButts. Right expert right away! We are listed and recommended by the A.M. Best Company. We welcome your rush cases! 12,000 medical and technical experts in over 1,000 ﬁelds enables Pro/Consul to provide the best experts at a reasonable cost, including: reconstruction, accounting, engineering, biomechanical, business valuation, construction, economics, electrical, human factors, insurance, lighting, marine, metallurgy, mechanical, roof, safety, security, SOC, toxicology, medmal, MDs, RNs, etc. Free resume binder. Please see display ad on page 43.

LOS ANGELES LAWYER / APRIL 2004 67 SILICON VALLEY EXPERT WITNESS 275-8903, (510) 549-1693, fax (510) 486-1255, e-mail: tants Bureau can provide you with assistance in mat- GROUP, INC. [email protected], Web page: www.amfs ters involving personal injury, product liability, property 2570 West El Camino Real, Suite 650, Mountain View, .com. Contact Barry Gustin, MD, MPH, FACEP. damage, patent litigation, failure analysis, contaminant CA 94040, (650) 917-0700, fax (650) 917-0701, e-mail: AMFS is a physician and attorney managed company identification, accident reconstruction, aviation acci- [email protected]. Web site: www.svewg.com. Contact that provides initial in-house case screenings by 72 dents, technology transfer, launch vehicle, and satellite Richard M. McCloskey, president. Silicon Valley Ex- multidisciplinary physician partners. Medical experts design, construction and operations, corporate and pert Witness Group, Inc., provides expert witness and are matched to meet case requirements by AMFS project management, and mergers and acquisitions. consulting services to the legal profession. Our focus is Physician Partners from our panel of over 3,500 care- See insert in this issue. on providing value-added solutions to your high tech- fully prescreened board-certified practicing specialists nology consulting and litigation support requirements in California. All recognized medical specialties. Plain- KARS ADVANCED MATERIALS, INC. that require top-level expertise. Areas of expertise in- tiff and defense. Fast, thorough, objective, and cost-ef- Testing and Research Labs, 2528 West Woodland clude computer sciences and technology, electrical fective. Medical negligence, hospital and managed Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax engineering, electronic systems, Internet hardware and care, personal injury, product liability, and toxic torts. (714) 527-7169, e-mail: [email protected]. Web site: software, microelectronics, semiconductor technology, “A 92 percent win record” –California Lawyer maga- www.karslab.com. Contact Drs. Ramesh J. Kar or software, and telecommunications/telephony. zine. See display ad on page 77. Naresh J. Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics labo- TASA EXPERT WITNESS WEB SITES ratory. Registered professional engineers with 20-plus 1166 DeKalb Pike, Blue Bell, PA 19422 (800) 523-2319, years in metallurgical/forensic/structural failure analy- fax (800) 329-8272. Contact Jim Roberts. NEED AN EXPERT4LAW—THE LEGAL MARKETPLACE sis. Experienced with automotive, bicycles, tires, fire, EXPERT? Reduce search time to minutes. Contact the (213) 896-6561, fax (213) 613-1909, e-mail: forensics paint, plumbing, corrosion, and structural failures. We oldest, most experienced expert and consultant @lacba.org. Web site: www.expert4law.org. Contact work on both plaintiff and defendant cases. Complete source. Fast access to thousands of experienced spe- Melissa Algaze. Still haven’t found who you’re looking in-house capabilities for tests. Extensive deposition and cialists in more than 9,500 categories of expertise, infor? Click here! expert4law—The legal Marketplace is courtroom experience (civil and criminal investigations). cluding more than 875 medical practice specialties. the best online directory for finding expert witnesses, Principals are fellows of American Society for Metals We know the experts, their backgrounds, and their legal consultants, litigation support, lawyer-to-lawyer and board-certified diplomates, American Board of availability. There is NO CHARGE FOR REFERRALS. networking, dispute resolution professionals, and law Forensic Examiners. See display ad on page 60. Categories include Accident Reconstruction, Business, office technology. This comprehensive directory is the Communication, Engineering, Economics, Health Care, one-stop site for your legal support needs. Available SEAL LABORATORIES Intellectual Property, Malpractice, Mold, OSHA, Per- 24/7/365! Brought to you by the Los Angeles County 250 North Nash Street, El Segundo, CA 90245, sonal Injury, Product Liability, Safety, Security, Toxicol- Bar Association. (310) 322-2011, fax (310) 322-2243. E-mail: akumar ogy. Plaintiff/defense; civil/criminal cases. ADR. Old- @seallabs.com. Web site: www.seallabs.com. Contact fashioned personal service since 1961. WE HAVE FAILURE ANALYSIS Arun Kumar, PhD, president. Materials failure analy- YOUR EXPERT®. Please see insert in this issue and sis, product liability, and patent infringement support. CONSULTANTS BUREAU, a division of display ad on page 77. Case evaluation and strategy, analytical support, and KASHAR TECHNICAL SERVICES, INC. expert witness testimony. Metals, composites, plastics, 5701 West Slauson Avenue, Suite 115, Culver City, CA and glass. Airplanes, autos, helicopters, motorcycles, EXPERT WITNESS 90230, (310) 645-4404, fax (310) 645-9859, e-mail: consumer products, medical devices, prostheses and [email protected]. Web site: www.consultantsbureau AMFS, INC. (AMERICAN MEDICAL FORENSIC implants, and electrical components. Analysis of failure .info. Contact Lawrence Kashar, PhD, FASM. With SPECIALIST) due to fatigue, overload, corrosion, wear, or manufac- over 60 highly competent consultants in a wide variety 2640 Telegraph Avenue, Berkeley, CA 94704, (800) turing/material defect. of technical and business related areas, the Consul-

68 LOS ANGELES LAWYER / APRIL 2004 FAMILY LAW Architectural Expert Witness COHEN, MISKEI & MOWREY LLP 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: Construction Defects & [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support and expert testimony regarding Personal Injury Claims forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, ■ Investigation and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 24. ■ Mediation GLENN M. GELMAN & ASSOCIATES, ■ Arbitration CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS ■ Trial Testimony 1940 East 17th Street, Santa Ana, CA 92705, (714) 667-2600, fax (714) 667-2636. Web site: www.gmgcpa on architecture, building .com. Contact Glenn Gelman. Expert witness testi- codes, construction, standards mony, strategy development, document discovery, de- of care, responsibility alloca- position assistance, computation of damages, arbitration consulting, forensic accounting, investigative au- tion and repair solutions. diting, rebuttal testimony, ﬁduciary accountings, and trial exhibit preparation.

GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Ange- les, CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected]. Web site: www.gursey .com. Contact David Cantor, David Swan, or Stephan Wasserman. Forensic accounting and litigation support services in the areas of marital dissolution, KPA Associates, Inc. business valuation and appraisal, goodwill, business Bayless E. Cobb, AIA disputes, malpractice, tax matters, bankruptcy, dam- President age and cost-proﬁt assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 55. (619) 725-0980 KRYCLER, ERVIN, TAUBMAN, & WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, www.kpaa.com CA 91403, (818) 995-1040, fax (818) 995-4124. Web site: [email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional valuations, damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman and Walheim is a full-service accounting ﬁrm serving the legal community for more than 20 years. See display ad on page 80.

MIOD AND COMPANY, LLP CPAs 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: [email protected]. Visit our Web site at www .miod-cpa.com. Contact Donald John Miod, CPA, ABV, CVA, CBA. More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss calculations, and income tax matters. Our ﬁrm is very computer-oriented, involving the use of computer graphics. We are members of the Institute of Business Appraisers, the International Society of CPAs (founding member), the American In- stitute of CPAs, and California Society of CPAs. See display ad on page 79.

SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site: www.sphvalue.com. Contact Nevin Sanli or Tom Pastore. Sanli Pastore & Hill, Inc. is a premier provider of business valuation and valuation advisory services, specializing in litigation support and expert witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partnerships), lost proﬁt analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehen- sive economic, industry, and market research. Exten- sive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 57.

LOS ANGELES LAWYER / APRIL 2004 69 WHITE, ZUCKERMAN, WARSAVSKY, LUNA, ANDELA CONSULTING GROUP, INC. iff’s Office (Arson-Bomb), Los Angeles. County Fire De- WOLF & HUNT 15250 Ventura Boulevard, Suite 610, Sherman Oaks, partment (Arson), Burbank Fire Department (Arson) and 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: Glendale Police Department. Since 1987. Degrees/ CA 91423, (818) 981-4226, fax (818) 981-4278, and [email protected]. Contact Thomas A. Tarter, man- license: (CA) PI license 12007; (NV) PI license 526. 333 City Boulevard West, 17th Floor, Orange, CA aging director. Former CEO of two banks. Lending, 92868, (714) 939-1781, fax (714) 938-3874, e-mail: forgery, endorsements, letters of credit, guarantees, THE McMULLEN COMPANY, INC. [email protected]. Contact Barbara Luna, Drew lender liability, checking accounts, credit cards, and 1260 Lake Boulevard, Suite 250, Davis, CA 95616, Hunt, Paul White, Jack Zuckerman, Fred Warsav- bankruptcy. Expert witness, litigation consulting. Expert (530) 757-1291, fax (530) 757-1293, e-mail: tmc@davis sky, and Bill Wolf. Expert witness testimony for busi- referral service escrow, corporate governance, mort- .com. Web site: www.themcmullencompany.com. ness, real estate, personal injury, and marital dissolu- gage banking, and real estate. Over 500 cases nation- Contact James F. McMullen. Former California state tion. Investigative analysis of liability, damage analysis ally. See display ad on page 81. fire marshal. Fire/building code analysis, code compli- of lost profits, lost earnings, and unjust enrichment, ance inspections, fire cause and origin investigation, fraud investigation, business valuation, tax planning FULCRUM FINANCIAL INQUIRY LLP fire services management review, emergency manage- and preparation and mergers and acquisitions. Hun- 1000 Wilshire Boulevard, Suite 1650, Los Angeles, ment planning and training, hazardous materials pro- dreds of times as expert witnesses. Prior “big four” ac- CA 90017, (213) 787-4000, fax (213) 787-4144, grams, and fire safety-related product analysis. Foren- counting firm experience. Specialties include account- e-mail: [email protected]. Web site: www sic fire expert and litigation consultation. ing, antitrust, breach of contract, business interruption, .fulcruminquiry.com. Contact David Nolte. Our analy- business dissolution, construction, fraud investigation, sis and research combined with unique presentation RIMKUS CONSULTING GROUP, INC. asset tracing analysis, intellectual property (patent, techniques have resulted in an unequaled track record 333 City Boulevard West, Suite 1805, Orange, CA trademark and copyright infringement and trade se- in successful court cases and client recoveries. Our 92868, (877) 978-2044, fax (714) 978-2088, e-mail: crets), product liability, real estate, spousal support, personnel are full-time and focused on the services we [email protected]. Web site: www.rimkus.com. tax, valuation of businesses, unfair advertising, unfair provide. We incorporate technology into our work to Contact Joe Rowland. Rimkus Consulting Group is a competition, and wrongful termination. See display ad provide great results at a more reasonable cost. Our full-service forensic consulting firm. Since 1983, we on page 53. expertise encompasses damages analysis, lost profit have provided reliable investigations, reports and ex- studies, business and intangible asset valuations, fraud pert witness testimony around the world. Our engineers FINANCE investigations, forensic economic analysis, analysis of and consultants analyze the facts from origin and computerized data, and computer forensics. See cause through extent of loss. Services: mold evalua- SANLI PASTORE & HILL, INC. display ad on page 2. tions, indoor air quality assessments, biomechanical 1990 South Bundy Drive, Suite 800, Los Angeles, CA analysis, product failure analysis, fire cause and origin, 90025, (310) 571-3400, fax (310) 571-3420, Web site: HAMILTON, RABINOVITZ & ALSCHULER, INC. property evaluations, foundation investigations, indus- www.sphvalue.com. Contact Nevin Sanli or Tom 6033 West Century Boulevard, Suite 890, Los Angeles, trial accidents and explosions, vehicle accident recon- Pastore. Sanli Pastore & Hill, Inc. is a premier provider CA 90045, voice (310) 645-9000, fax (310) 645-8999. struction, water intrusion analysis, geotechnical evalua- of business valuation and valuation advisory services, E-mail: [email protected]. Contact Francine tions, construction accidents, construction defect specializing in litigation support and expert witness tes- Rabinovitz, PhD, executive vice president. Public analysis, construction disputes, financial analysis and timony. Services include valuations for goodwill loss, policy, finance, and management consultants provid- assessments, forensic accounting, HVAC analysis, estate and gift tax planning (family limited partner- ing litigation support, simulation, and modeling to electrical failure analysis, and video/graphics computer ships), lost profit analysis, mergers and acquisitions, courts and corporate/public litigants in land use, real es- animation. See display ad on page 73. goodwill impairment, fairness and solvency opinions, tate development, environmental protection, mass tort ESOPs, incentive stock options, capital raises, corpo- (including toxic tort), insurance, finance, housing, minor- W. F. SCHULTHEIS, INC. ENGINEERING/ rate, partnership, and marital dissolutions. Comprehen- ity rights, education, and employment cases. Degrees/li- FIRE ANALYSIS sive economic, industry, and market research. Exten- cense: MBAs, PhDs, cert. planners, MPAs, MCPs. 726 West Angus Avenue, Unit B, Orange, CA 92868, sive experience in expert witness testimony, pretrial (714) 283-9284, fax (714) 283-9286, e-mail: schultheis preparation, and settlement negotiations. See display HAYNIE & COMPANY, CPAs @earthlink.net. Contact Rick Schultheis. Forensic ad on page 57. 4910 Campus Drive, Newport Beach, CA 92660, (949) engineering/fire analysis, electrical, natural gas and 724-1880, fax (949) 724-1889, e-mail: sgabrielson propane systems, testing, and product analysis. Thirty FINANCE/SECURITIES @hayniecpa.com. Web site: www.hayniecpa.com. years of consulting and court experience. Postgraduate Contact Steven C. Gabrielson. Alter ego, consulting ROSEN & ASSOCIATES, P.C. studies in fire protection engineering. Area of expertise: and expert witness testimony in a variety of practice 300 South Grand Avenue, Suite 2700, Los Angeles, CA product defense. Degrees/licenses: BSME, CFI. areas: commercial damages, ownership disputes, eco- 90071, (213) 362-1000, fax (213) 362-1001, e-mail: nomic analysis, business valuation, lost profits analysis, [email protected]. Web site: www.rosen-law.com. FOOD SAFETY/HACCP fraud/forensic investigations, taxation, personal injury, Contact Lora Foley. Securities law, federal securities wrongful termination, professional liability, and expert JEFF NELKEN, MA, RD law enforcement, international securities law enforce- cross examination. Extensive public speaking back- 20938 De Mina Street, Woodland Hills, CA 91364, ment, international securities regulation, insider trading, ground assists in courtroom presentations. (818) 703-7147, e-mail: [email protected]. Web site: NYSE, AMEX, NASD disciplinary proceedings, broker- www.foodsafetycoach.com. Contact Jeff Nelken, MA, dealer, investment company and investment adviser MIOD AND COMPANY, LLP CPAs RD. Food safety expert knowledgeable in both food matters, liability under federal and state securities laws, 11600 Indian Hills Road, Building B, Suite 300, Mission safety and hazard analysis critical control point pro- public and private offerings, Internet securities, securi- Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- gram development. Specializes in expert witness testi- ties arbitration, and law firm liability. Former chair, 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA mony and litigation consultant in matters regarding LACBA Business & Corporations Law Section LLM, Har- 92260, (760) 779-0990, fax (760) 779-0960, e-mail: food safety, HACCP, crisis management, food-borne vard Law School. More than 30 years practicing securi- [email protected]. Visit our Web site at www illness, health department representation, and cus- ties law, 12 years with the U.S. Securities and Exchange .miod-cpa.com. Contact Donald John Miod, CPA, tomer complaints. Performs inspections, vendor audits, Commission, Washington D.C. Published author of se- ABV, CVA, CBA. More than 30 years’ experience in and training. Hands-on food safety consultant for curities regulations, including nine-volume treatise. litigation support, including computation of income restaurants, manufacturers, distributors, country clubs, available for support, tracing, business valuations, schools, nursing homes, and casinos. NRA and NSF FINANCIAL fraud investigations, earnings loss calculations, and in- HACCP certified instructor. Thirty years of food and ADVISORS/EXPERTS @ MCS ASSOCIATES come tax matters. Our firm is very computer-oriented, hospitality experience. Registered as a food handler 18881 Von Karman, Suite 1175, Irvine, CA 92612, involving the use of computer graphics. We are mem- instructor with the Los Angeles County Health Depart- (949) 263-8700, fax (949) 263-0770, e-mail: info bers of the Institute of Business Appraisers, the Interna- ment. Provider # 015. @mcsassociates.com. Web site: www.mcsassociates tional Society of CPAs (founding member), the Ameri- .com. Contact Norman Katz, managing partner. Na- can Institute of CPAs, and California Society of CPAs. FORENSIC ACCOUNTING See display ad on page 79. tionally recognized banking, finance, and real estate BALLENGER, CLEVELAND & ISSA, LLC consulting group (established 1973). Experienced liti- 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA gation consultants/experts include senior bankers, FIRE/EXPLOSIONS 90024, (310) 873-1717, fax (310) 873-6600. Contact lenders, consultants, economists, accountants, insur- CAUSE & ORIGIN INVESTIGATION Bruce W. Ballenger, CPA, executive managing ance underwriters/brokers. Specialties: lending cus- 6320 Canoga Avenue, Suite 1500, Woodland Hills, CA director. Services available: assist counsel in deter- toms, practices, policies, in all types of lending (real 91367, (800) 872-8922, fax (800) 872-8908. Contact mining overall strategy. Help evaluate depositions and estate, business/commercial, construction, consumer/ Al Hernandez. Full spectrum of consulting and court- evidence. Provide well-prepared, well-documented, credit card), banking operations/administration, trusts qualified expert witness in fire origin and cause/explo- and persuasive in-court testimony regarding compli- and investments, economic analysis and valuations/ sions/product and third-party liability/subrogation/fraud cated accounting, financial, and business valuation damages assessment, insurance claims, coverages and wrongful death. Fire staff background of 180+ matters, fairness of interest rates, feasibility of reorgani- and bad faith, real estate brokerage, appraisal, es- years, with investigative backgrounds from Los Angeles zation plans, fraudulent conveyances, bankruptcies, crow, and construction defects/disputes, and title in- City Fire Department (Arson), Los Angeles County Sher- mergers and acquisitions, and management misfea- surance.

70 LOS ANGELES LAWYER / APRIL 2004 sance/malfeasance. More than 100 open-court testi- EXPERT WITNESS • PSYCHIATRY monies, federal and state, civil and criminal. See GILBERG, ARNOLD L., M.D., PH.D display ad on page 64. EXPERT WITNESS

DESMOND MARCELLO AND AMSTER • Appointed to Medical Board of California (11th district MORC) by Governors Brown, Jr., Southern California Office: 6060 Center Drive, Suite INDUSTRIAL/COMMERCIAL Dukmejian, and Wilson (1982-1991) 825, Los Angeles, CA 90045, (888) 240-5184, (310) REAL ESTATE 216-1400, fax (310) 216-0800. Northern California Of- • Associate Clinical Professor of Psychiatry, fice: 1485 Enea Court, Suite 1330, Concord, CA 94520, UCLA School of Medicine Care, Duty & Broker Responsibility (925) 674-3668, fax (925) 674-3669. Web site: www • All areas of civil litigation Lease & Purchase Contracts .dmavalue.com. Contact Wes Nutten, Aaron Amster Condition of Premises or Madeleine Mamaux. Litigation consulting, forensic • Board Certified since 1971 accounting, expert witness testimony, class action E-Mail: [email protected] 42 Years of Experience claims administration services, and business valuation services. Staff qualifications include CPA, CMA, ABV, TEL 310/274-2304 CFA and ASA designations. Testimony experience in FAX 310/203-0783 JACK KARP numerous court jurisdictions. Established in 1968. See 9915 Santa Monica Blvd., Suite 101 display ad on page 57. Beverly Hills, CA 90212 (310) 377-6349 FAX: (310) 868-2880

FULCRUM FINANCIAL INQUIRY LLP 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4000, fax (213) 787-4144, e-mail: [email protected]. Web site: www .fulcruminquiry.com. Contact David Nolte. Our analy- Insurance Bad Faith Expert sis and research combined with unique presentation techniques have resulted in an unequaled track record in successful court cases and client recoveries. Our personnel are full-time and focused on the services we provide. We incorporate technology into our work to Clinton E. Miller, J.D., BCFE provide great results at a more reasonable cost. Our Author: How Insurance Companies Settle Cases expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, fraud 39 YEARS EXPERIENCE investigations, forensic economic analysis, analysis of computerized data, and computer forensics. See dis- Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide play ad on page 2. • Coverage Disputes • Customs and Practices in the Claims Industry GUMBINER, SAVETT, FINKEL, FINGLESON & • Good Faith/Bad Faith Issues ROSE, INC. 1723 Cloverfield Boulevard, Santa Monica, CA 90404, (408) 279-1034 ■ FAX (408) 279-3562 (310) 828-9798, fax (310) 829-7853, e-mail: rgreene @gscpa.com. Contact Ronald S. Green, executive 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 care analyses, and royalty and contract audits.

NANCY A. KEARSON, CPA, ABV, CVA, DABFA 1801 Century Park East, Suite 2400, Los Angeles, CA SECURITIES 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Contact Nancy Kearson. Specialties: solid, cost-effective, timely expert witness Securities Law and consultation services, investigative forensic ac- Federal Securities Law Enforcement counting, asset tracing, loss of earnings calculations, International Securities Regulation partnership and shareholder disputes, business valuation, and professional practice appraisal. Director, Cali- Insider Trading fornia Society of CPAs-LA. Immediate past Officer, Fam- NYSE, AMEX, NASD Disciplinary Proceedings ily Law Section, former chair, Family Law Conference. Broker-Dealer, Investment Company & Investment Adviser Matters Licenses: Certified Public Accountant, Accredited in Business Valuation, Certified Valuation Analyst, diplo- Liability Under Federal & State Securities Laws mate of the American Board of Forensic Accountants. Public & Private Offerings Internet Securities VICENTI, LLOYD & STUTZMAN LLP 2210 East Route 66, Glendora, CA 91740, (626) 857- Securities Arbitration 7300, fax (626) 857-7302, e-mail: rstutzman@vlsllp Law Firm Liability .com. Web site: www.vlsllp.com. Contact Royce Stutzman, CVA, CPA, Chairman. Our certified professionals serve as consultants and experts in business valuations and litigation support. We conduct valua- Robert C. Rosen tions related to mergers and acquisitions, buy-sell Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. More than agreements, purchase/sale of closely held businesses, 30 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, partner disputes, etc. Our forensic accounting experts Washington D.C. Published Author of Securities Regulations, including nine volume treatise. assess the amount of an economic loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various events. Our fraud investigation team reviews documentation, interviews witnesses and Rosen & Associates, P.C. suspects, and assesses evidence to resolve allega- LAW OFFICES tions. We provide expert witness testimony and imple- California Plaza • 300 S. Grand Avenue, Suite 2700 • Los Angeles, CA 90071 ment fraud prevention programs. VLS Celebrates Over 50 Years of Quality Service! TEL 213/362-1000 ■ FAX 213/362-1001 Web site: Rosen-law.com E-mail: [email protected]

LOS ANGELES LAWYER / APRIL 2004 71 Allen Jacoby FORENSIC COMPUTER EXAMINER 90024, (310) 826-4935, fax (310) 826-4212, e-mail: [email protected]. Web site: www.sinaikohc.com. Roofing Consultant DATACHASERS, INC. Contact Jeff Sinaiko. Sinaiko is a nationally recog- P.O. Box 2861, Riverside, CA 92516-2861, (877) Data nized healthcare consulting firm. Our professionals are Exam, (877) 328-2392, (909) 780-7892, fax (909) 780- handpicked for their broad understanding of the indus- PRESIDENT, BURTECH ROOFING 9199, e-mail: [email protected]. Web site: www try, detailed expertise and superior communication CONSULTANTS .dataChasers.com. Contact Rick Albee. Hard drive skills. Clients have found this expertise invaluable in liti- imaging, use assessment and auditing, intellectual gation support where there is no substitute for experi- property and trade secret disputes, restore hidden, ence. Sinaiko’s litigation support practice includes, Over 40 Years deleted, or lost files and images, file dates when cre- among others, industry standard practices evaluations: ated, modified, or deleted, Internet history and e-mail Medicare/Medicaid fraud; provider/payor payment dis- Experience, Roofing & recovery, computer use auditing and evaluations, putes; business valuation; transaction disputes; and fa- human resources, employer/employee exams, experi- cility and professional fee billing. Waterproofing enced expert witness and special master and full computer laboratory. Many years public sector experience. Complete litigation support Multiple certifications. Prior law enforcement. See HOTEL services, including evaluations display ad on page 10. MAURICE ROBINSON & ASSOCIATES LLC 880 Apollo Street, Suite 125, El Segundo, CA and pre-trial research, safety FORENSIC PSYCHIARTY 90245, (310) 640-9656, fax (310) 640-9276, e-mail: requirement analysis. [email protected]. Web site: www CAROLE LIEBERMAN, MD, MPH .mauricerobinson.com. Contact R. Maurice Experienced with deposition 247 South Beverly Drive, Suite 202, Beverly Hills, CA Robinson, president. Hotel and real estate industry 90212, (310) 278-5433, fax (310) 456-2458, e-mail: and trial testimony. business issues, including market, economic and fi- [email protected]. Contact Carole Lieberman, nancial feasibility, valuation, and disputes between MD, MPH. Board-certified Forensic Psychiatrist, on owner-operator, borrower-lender, and franchisor-fran- UCLA faculty, with winning record of testimony, deposi- chisee. Fluent in management contracts, license tions, and evaluations in hundreds of civil and criminal ROOFING agreements, ground and building leases, partnership cases, including high-profile, sexual harassment, enter- and JV agreement, concession contracts, development tainment law, terrorism, priest misconduct, malpractice, agreements, and loan docs. Can estimate damages divorce, custody, abuse, personal injury, discrimina- and appraise property values under multiple scenarios. tion, wrongful termination, media copycats, sports, and Expert witness testimony, litigation strategy, consulta- violence. Consultant to Congress and the media. More ALLENCONSULTANT JACOBY tion and support, damage calculations, lost profits than 10 years of experience. Excellent references avail- analysis, real estate appraisals, deal structuring, work- able upon request. Phone: 818-999-1941 outs, new development, strategic planning, market de- Fax: 818-999-1143 mand assessment, acquisition due diligence, and eco- FRANCHISE/LICENSING 20549 Califa Street nomic, financial, and investment analysis. Woodland Hills, CA 91367 LEON GOTTLIEB—US-INT’L RESTAURANT, HOTEL & FRANCHISE CONSULTANT HUMAN FACTORS 4601 Sendero Place, Tarzana, CA 91356-4821, USA, [email protected] D. WYLIE ASSOCIATES (818) 757-1131, fax (818) 757-1816, e-mail: lgottlieb P.O. Box 60836, Santa Barbara, CA 93160, (805) 681- @aol.com. Web site: http://members.aol.com/lgottlieb 9289, fax (805) 681-9299. Web site: www.drivingfatigue /myhomepage/business.html. Specialties: USA/Int’l .com. Contact Dennis Wylie. Internationally recog- restaurant/hotel/franchise experience since 1960. nized human factors expert on driver error, inattention, Hands-on consultant and expert witness all types of fatigue, car truck, and bus driver skill and knowledge Behrooz (Bruce) restaurants, franchises, fast food, training, manuals, requirements, driver and motor carrier standards of safety, security, injury, operating standards, and P&L care, hours of service violations, circadian rhythms, Broukhim, M.D. damages. Former VP/Partner IHOP, director to USA sleep debt, impaired vigilance, alertness, decision chains, author, arbitrator, and expert witness. making, reaction time, and control responses. See Board Certified Orthopedic Surgeon display ad on page 51. FRAUD INVESTIGATIONS ■ Shoulder, knee & hip surgery DESMOND MARCELLO AND AMSTER HAYNIE & COMPANY, CPAs 4910 Campus Drive, Newport Beach, CA 92660, (949) ■ Arthroscopic surgery Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 724-1880, fax (949) 724-1889, e-mail: sgabrielson ■ Neck & back injury eval. & treatment 216-1400, fax (310) 216-0800. Northern California Of- @hayniecpa.com. Web site: www.hayniecpa.com. ■ Personal injury fice: 1485 Enea Court, Suite 1330, Concord, CA 94520, Contact Steven C. Gabrielson. Alter ego, consulting (925) 674-3668, fax (925) 674-3669. Web site: www and expert witness testimony in a variety of practice ■ Workers’ Compensation .dmavalue.com. Contact Wes Nutten, Aaron Amster areas: commercial damages, ownership disputes, eco- ■ QME, IME, AME or Madeleine Mamaux. Litigation consulting, forensic nomic analysis, business valuation, lost profits analysis, accounting, expert witness testimony, class action fraud/forensic investigations, taxation, personal injury, claims administration services, and business valuation wrongful termination, professional liability, and expert MEMBER: services. Staff qualifications include CPA, CMA, ABV, cross examination. Extensive public speaking background assists in courtroom presentations. – Am. Academy of Orthopedic Surgeons CFA and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See – American Board, of Ortho Surgeons display ad on page 57. INFERTILITY – Arthroscopic Assn. of North America GIL N. MILEIKOWSKY, MD – International Society of Arthroscopy, 1 FUTURE EARNING POTENTIAL Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen Knee Surgery & Ortho Sports Medicine ANALYSIS Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) 981-1888, fax (310) 858-1303 or fax (818) 981- LACMA – CMA V.E.S., INC. 2171 Campus Drive, Suite 240, Irvine, CA 92612, 1994. Web site: www.baby4you.net. Contact Gil N. (800) 734-2248, fax (949) 975-1456, e-mail: corporate Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplo- 818-755-6500 TEL @vesinc.net. Web site: www.vesinc.net. Contact Virginia Acosta or Stephanie Simpson. Serving the mate, board certified by the American Board of 310-552-1488 (L.A.) legal community since 1977 providing expert witness OB/GYN. Board eligible, American Board of Reproduc- tive Endocrinology Division. Fellow, American College 818-980-7144 FAX testimony. Specializing in matters of future earning potential, lost wages analysis, and labor market assess- of OB/GYN. Member of the American Society for Re- 10767 Riverside Dr., North Hollywood, CA ments for personal injury cases and marriage dissolu- productive Medicine, Society of Assisted Reproductive 9763 W. Pico Blvd., Los Angeles, CA tion cases. Our services are specific to meet your Technologies, former Medical Director IVF (In Vitro Fer- client’s needs. See display ad on page 75. tilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge Hospital and 20 YEARS EXPERIENCE member of the Los Angeles County Medical Associa- IN ORTHO. MED. LEGAL WORK HEALTHCARE tion. Author, numerous scientific papers and articles AND EXPERT TESTIMONY SINAIKO HEALTHCARE CONSULTING, INC. published in peer review journals. Clinical assistant pro- 1100 Glendon Avenue, Suite 1800, Los Angeles, CA fessor, OB/GYN at UCLA. See display ad on page 73.

72 LOS ANGELES LAWYER / APRIL 2004 INSURANCE ADVISORS/EXPERTS @ MCS ASSOCIATES — EXPERT WITNESS IN — 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: info INFERTILITY, GYNECOLOGY & OBSTETRICS @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. IVF (In Vitro Fertilization) • LASER SURGERY • Nationally recognized banking, ﬁnance, and real estate consulting group (established 1973). Experienced liti- LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY gation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insur- GIL N. MILEIKOWSKY, M.D. ance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real OFFICES: Encino and Beverly Hills estate, business/commercial, construction, consumer/ 2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077 credit card), banking operations/administration, trusts TEL (310) 858-1300 • FAX (310) 858-1303 and investments, economic analysis and valuations/ damages assessment, insurance claims, coverages TEL (818) 981-1888 • FAX (818) 981-1994 and bad faith, real estate brokerage, appraisal, es- Web site: www.baby4you.net crow, and construction defects/disputes, and title insurance. Please see listing under INFERTILITY and OBSTETRICS AND GYNECOLOGY for more information.

BARRY ZALMA, INC.; ZALMA INSURANCE CONSULTANTS 4441 Sepulveda Boulevard, Culver City, CA 90230, (310) 390-4455, fax (310) 391-5614, e-mail: zalma @zalma.com. Web site: www.zalma.com or www.zic.bz. Contact Barry Zalma. Insurance coverage, insurance claims, insurance bad faith consultant, and expert witness. Author of Insurance Claims—A Comprehensive Guide and Mold: A Comprehensive Claims Guide.

E. L. EVANS ASSOCIATES 3310 Airport Avenue, Box 2, Santa Monica, CA 90405, (310) 559-4005, fax (310) 390-9669, e-mail: elevans66 @yahoo.com. Contact Gene Evans. Good faith/bad faith. Over 40 years’ experience—claims adjuster, good faith/bad faith, standards and practices in the industry, claims litigation support, claims consultation, case review and evaluation, property/casualty claims, construction claims, uninsured/underinsured motorist claims, general liability, ﬁre/water claims, and suspected fraud claims. CV on request. See display ad on page 67.

HAMILTON, RABINOVITZ & ALSCHULER, INC. 6033 West Century Boulevard, Suite 890, Los Angeles, CA 90045, voice (310) 645-9000, fax (310) 645-8999. E-mail: [email protected]. Contact Francine Rabinovitz, PhD, executive vice president. Public policy, ﬁnance, and management consultants providing litigation support, simulation, and modeling to courts and corporate/public litigants in land use, real estate development, environmental protection, mass tort (including toxic tort), insurance, ﬁnance, housing, minority rights, education, and employment cases. Degrees/ license: MBAs, PhDs, cert. planners, MPAs, MCPs.

LAUNIE ASSOCIATES, INC. 1165K Tunnel Road, Santa Barbara, CA 93105, (805) 569-9175, fax (805) 687-8597, e-mail: [email protected]. Contact Joseph J. Launie, PhD, CPCU, insurance professor, author and consultant. Over 25 years’ experience as expert witness in state and federal courts. Coauthor of books and articles on underwriting, insurance company operations, and punitive damages. Consulting, expert witness on underwriting, company and agency operations, and bad faith.

CLINTON E. MILLER, JD 502 Park Avenue, San Jose, CA 95110, (408) 279- 1034, fax (408) 279-3562, e-mail: [email protected]. Contact Clint Miller. Insurance expert regarding claims, underwriting, agent and brokers errors and omissions, coverage disputes, customs and practices, and bad faith. See display ad on page 71.

DAVID F. PETERSON 10681 Encino Drive, Oak View, CA 93022, (805) 649- 8557, fax (805) 649-5957, e-mail dfpeterson@earthlink .net. Contact David F. Peterson. Fourteen years of claim experience. Twenty-five years as a bad faith coverage attorney. Qualified and testified in over 40 trials on bad faith (first and third party), underwriting, legal malpractice, coverage and advice of counsel. Testi-

LOS ANGELES LAWYER / APRIL 2004 73 James F. Lineback, M.D., F.C.C.P. mony in federal and state courts in California, Arizona, techniques have resulted in an unequaled track record Nevada, and Virgin Islands for insureds and insurers. in successful court cases and client recoveries. Our EXPERT WITNESS personnel are full-time and focused on the services we THOMAS & ELLIOTT provide. We incorporate technology into our work to 12400 Wilshire Boulevard, Suite 400, Los Angeles, CA provide great results at a more reasonable cost. Our 90025, (310) 571-2727, fax (310) 207-0900, e-mail: expertise encompasses damages analysis, lost profit [email protected]. Web site: www.thomasandelliott.com. studies, business and intangible asset valuations, fraud PLAINTIFF AND DEFENSE Contact Deborah Stone. Coverage analysis of liability, investigations, forensic economic analysis, analysis of property, auto, malpractice, health, disability, life, title, computerized data, and computer forensics. See (20 YEARS) and fidelity insurance. Duty to defend, reservation of display ad on page 2. rights, Cumis, bodily injury, property damage, business MEDICAL MALPRACTICE torts, privacy, bad faith, reasonableness of attorney’s SPECIALIZED INVESTIGATIONS fees, and defense cost reimbursement claims. 14530 Delano Street, Van Nuys, CA 91411, (818) 909- PERSONAL INJURY 9607, fax (818) 782-3012, e-mail: [email protected]. INTELLECTUAL PROPERTY Web site: www.specialpi.com. Contact Richard Harer. Trial preparation, locates, computer forensics, state- WORKERS’ COMPENSATION SANLI PASTORE & HILL, INC. ments, insurance, workers’ compensation, surveillance, 1990 South Bundy Drive, Suite 800, Los Angeles, CA employment/labor, civil, criminal, asset searches, (QME, AME) 90025, (310) 571-3400, fax (310) 571-3420, Web site: background checks, and information services. In busi- www.sphvalue.com. Contact Nevin Sanli or Tom ness since 1982. Spanish- and Korean-speaking inves- Pastore. Sanli Pastore & Hill, Inc. is a premier provider tigators. of business valuation and valuation advisory services, SPECIALTIES specializing in litigation support and expert witness JAIL MEDICINE testimony. Services include valuations for goodwill loss, ■ Internal Medicine estate and gift tax planning (family limited partner- COREY WEINSTEIN, MD, CCHP ships), lost profit analysis, mergers and acquisitions, 1199 Sanchez Street, San Francisco, CA 94114, (415) ■ Pulmonary/Chest Medicine goodwill impairment, fairness and solvency opinions, 333-8228, e-mail: [email protected]. Services avail- ESOPs, incentive stock options, capital raises, corpo- able: jail and prison medicine, correctional medical ■ Occupational Medicine rate, partnership, and marital dissolutions. Comprehen- care delivery, correctional medical standards, correc- sive economic, industry, and market research. Exten- tional medical policies and procedures, medical ne- ■ Wrongful Death Cases sive experience in expert witness testimony, pretrial glect in jail and prison, health effects of control unit preparation, and settlement negotiations. See display prisons, in-custody suicide and death, restraint proce- ■ Patient Care Issues ad on page 57. dures, and pepper spray. Thirty years of experience in general and family medicine. Member of task force that ■ Medical Causation WHITE, ZUCKERMAN, WARSAVSKY, LUNA, wrote the American Public Health Association Stan- WOLF & HUNT dards for Health Services in Correctional Institutions ■ Standard of Care Issues 14455 Ventura Boulevard, Suite 300, Sherman Oaks, (2003). Primary consultant for Improving Access to CA 91423, (818) 981-4226, fax (818) 981-4278, and Health Care for California’s Women Prisoners (UCSC ■ Diagnostic Dilemmas 333 City Boulevard West, 17th Floor, Orange, CA 2001). Expert in federal court on jail medical programs, 92868, (714) 939-1781, fax (714) 938-3874, e-mail: suicide, and delivery of medical services in prison. ■ Toxic Exposure [email protected]. Contact Barbara Luna, Drew Medical consultant to Legal Services for Prisoners with Hunt, Paul White, Jack Zuckerman, Fred Children and Justice Now. Certified correctional health- ■ Medical Records Review Warsavsky, and Bill Wolf. Expert witness testimony care provider. for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage JURY CONSULTANT analysis of lost profits, lost earnings, and unjust enrich- MEDICAL PRACTICE IN ment, fraud investigation, business valuation, tax plan- HENNINGTON AND ASSOCIATES PULMONARY/CHEST MEDICINE ning and preparation and mergers and acquisitions. 9454 Wilshire Boulevard, Penthouse, Beverly Hills, CA Hundreds of times as expert witnesses. Prior “big four” 90212, (310) 205-5510, fax (310) 205-0513, e-mail: AND INTERNAL MEDICINE accounting firm experience. Specialties include ac- [email protected]. Web site: www.juryconsulting SINCE 1983 counting, antitrust, breach of contract, business inter- .com. Contact Dr. Marshall Hennington. Jury selec- ruption, business dissolution, construction, fraud inves- tion, focus groups, mock trials, witness preparation, Degrees: MS, MD, FCCP tigation, asset tracing analysis, intellectual property and more. (patent, trademark and copyright infringement and Board Certified, Internal Medicine trade secrets), product liability, real estate, spousal LAW ENFORCEMENT/SECURITY Board Certified, Pulmonary Medicine support, tax, valuation of businesses, unfair advertis- DANIEL R. SULLIVAN ing, unfair competition, and wrongful termination. See Fellow Am. College of Chest Physicians 150 East Olive Avenue #105, Burbank, CA 91502, display ad on page 53. (818) 567-3188, fax (818) 567-3199, e-mail: invsvcs @aol.com. Web site: www.investigativeservices.com. Associate Clinical Professor Medicine INTELLECTUAL PROPERTY/PATENTS Contact Dan Sullivan. Expert witness—police practices/facility security, security consultant to City of Los USC College of Medicine JOHN R. GRINDON ASSOCIATES Angeles, Beverly Hills, and U.S. Department of Justice. P.O. Box 4067, Hazelwood, MO 63042, (314) 895- Associate Clinical Professor of Medicine Testified over 100 times in superior/federal courts as a 4747, fax (314) 895-0830, e-mail: [email protected]. qualified expert. UC Irvine College of Medicine Web site: www.jrgrindon.com. Contact John R. Lecturer in Physiology Grindon, DSc. Dr. Grindon is a court-qualified expert witness and consultant with experience in patent litiga- LAW OFFICE TECHNOLOGY UC Riverside College of Medicine tion cases. Services offered include expert testimony, LEGAL FRIENDLY TECHNOLOGIES consulting, discovery research and patent analysis in (800) 475-4565, e-mail: [email protected]. the areas of electronics, electronic imaging, machine Web site: www.legalfriendly.com. Preeminent law office vision, signal processing, guidance and control, and technology firm. Legal Friendly integrates 20 law office related systems and software algorithms. He has technologies into supporting the management and JAMES F. LINEBACK, M.D. extensive experience as a practicing engineer in these practice of law. Legal Friendly is a contributing author 2100 N. Main St., Suite 202 fields, and is skilled in communicating technical for the L.A. Bar Association’s Computer Counselor sec- matters in clear language for expert reports and tion of Los Angeles Lawyer magazine and L.A. Parale- Santa Ana, CA 92706 courtroom presentations. gal Association Reporter Technology Corner. ABA compliant Web pages, networks, data discovery and Telephone (714) 565-1012 INVESTIGATIONS data recovery, remote communication, employee training programs, courtroom multimedia animation and Fax: (949) 721-9121 FULCRUM FINANCIAL INQUIRY LLP presentation, document depositories, database pro- 1000 Wilshire Boulevard, Suite 1650, Los Angeles, E-mail: [email protected] gramming and support, expert witness, and inter alia. CA 90017, (213) 787-4000, fax (213) 787-4144, The importance of law firm technology cannot be over- e-mail: [email protected]. Web site: www stated. Proper legal technology can win litigation, at- .fulcruminquiry.com. Contact David Nolte. Our analy- tract clients, reduce costs, and improve reputations. sis and research combined with unique presentation “Engineers that think LAW.”

74 LOS ANGELES LAWYER / APRIL 2004 LEGAL/CORPORATE LAW B. KEITH MARTIN REAL ESTATE, BANKING, MALPRACTICE ROGERS, SHEFFIELD & CAMPBELL, LLP 427 East Carrillo Street, Santa Barbara, CA 93101, EXPERT WITNESS – SAMUEL K. FRESHMAN, B.A., J.D. (805) 963-9721, fax (805) 966-3715, e-mail: kmartin @rshlaw.com. Contact B. Keith Martin. Thirty-five Attorney and Real Estate Broker since 1956 • Banker • Professor • Legal years in the boardroom. Corporate law expert for consulting or testimony. Deadlock, buy/sell enforcement, Malpractice • Arbitration • Brokerage • Malpractice • Leases D and O liability and indemnification, securities law in • Syndication • Construction • Property Management • Finance • Due private corporations, removal of directors, cumulative voting, provisional directors, stock options/purchase Diligence • Conflict of Interest • Title Insurance • Banking • Escrow plans, capital structure, recapitalization, mergers, ac- • Expert Witness • 48 Years Experience - 25 years State & Federal Courts quisitions, dissenter’s rights, involuntary dissolution. • 29 articles • Arbitrator • Mediator • $300,000,000+ Property USC Law Review. Caltech BSEE. Published author. Member, State Bar Corporations Committee (1999- 2003). See display ad on page 25. 6151 W. Century Blvd., Suite 300, Los Angeles, CA 90045 Tel (310) 410-2300 ext. 306 ■ Fax (310) 410-2919 LEGAL MALPRACTICE PHILLIP FELDMAN, BS, MBA, JD 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403-3287, (310) LEG MALP (534-6257), fax (818) 986-1757, e-mail: legalmalpracticeexpert@netzero .com. Web site: www.legalmalpracticeexpt.com. Contact Phillip Feldman, BS, MBA, JD. Thirty-six years of legal malpractice, fee disputes, and ethics on both sides of the bar. Hands-on experience in most transactional and trial lawyering underlying matters (“case within a case”, causation issues) including over 25 years as a judge pro temp and attorney/client fee dispute arbitrator (accounting degree). Former State Bar prosecutor, present attorney discipline and ethics defense counsel. Board certified legal and medical malpractice, California and American bar associations. Never disqualified in 22 years as expert witness. Pro- lific author and lecturer.

BOYD S. LEMON 330 Washington Boulevard, Suite 420, Marina del Rey, CA 90292, (310) 827-0840, fax (310) 827-7890. Con- tact Boyd S. Lemon. Experienced expert witness in legal malpractice and attorney fee dispute cases, 35 years of business trial experience, extensive malpractice litigation experience, retained expert witness in BOARD CERTIFIED ORTHOPEDIC SURGEON over 500 cases, former litigation department chairman major law firm, State Bar disciplinary committee, and court appointed mediator and arbitrator. See display ad on page 67. MARC J. FRIEDMAN, M.D. 6815 Noble Avenue, Van Nuys, California 91405 LITIGATION Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected] ECON ONE RESEARCH, INC. Web Site: www.scoi.com 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, (213) 624-9600, fax (213) 624-6994, e-mail: lskylar @econone.com. Web site: www.econone.com. Con- Education: Princeton University and Cornell Medical School tact Lisa Skylar, general manager. Econ One is an economic research and consulting firm of over 40 pro- Certificate: Board Certified Orthopedic Surgeon fessionals with extensive experience with the litigation process. We understand the need for clear, accurate, Memberships: Fellowship Sports Medicine persuasive answers to complex problems. We work Fellow American Academy of Orthopedic Surgeons with our clients to keep our efforts focused on neces- Fellow in the Arthroscopy Association of North America sary tasks, with close attention to costs. We provide Fellow in the International Arthroscopy Association economic analysis and expert testimony in many areas, including: antitrust, contract disputes, damages analy- Fellow in the International Knee Society sis/calculations, intellectual property and patent in- Fellow in the American Orthopedic Society of Sports Medicine fringement, market analysis, regulation, stock price ACL Study Group analysis and unfair competition. Industry specialties in- Certified QME, IME, AME clude energy, biotechnology, computer hardware and software, manufacturing, telecommunications, and fi- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of nancial services. the Knee and Shoulder, and Knee Replacement

HAMILTON, RABINOVITZ & ALSCHULER, Appointments: Assistant Clinical Professor, Division of Orthopedics, INC. UCLA School of Medicine, Chairman, Education Committee 6033 West Century Boulevard, Suite 890, Los Angeles, Arthroscopy Association of North America 1997-1999 CA 90045, voice (310) 645-9000, fax (310) 645-8999. World Cup Soccer Team Physician, 1985 E-mail: [email protected]. Contact Francine Rabinovitz, PhD, executive vice president. Public Physician Specialist XXIII Olympiad 1984 policy, ﬁnance, and management consultants provid- Orthopedic Consultant–New York Knicks and Jets 1978-1985 ing litigation support, simulation, and modeling to courts and corporate/public litigants in land use, real es- Publications: 60 Publications including handbook for Orthopedic Surgeons tate development, environmental protection, mass tort on Prosthetic Ligament Reconstruction of the Knee (including toxic tort), insurance, ﬁnance, housing, minor- Presentations: ity rights, education, and employment cases. Degrees/ Lectures extensively with over 375 presentations worldwide license: MBAs, PhDs, cert. planners, MPAs, MCPs.

LOS ANGELES LAWYER / APRIL 2004 75 SANLI PASTORE & HILL, INC. Physician Partners from our panel of over 3,500 care- Specialties: LINC is a case management and 1990 South Bundy Drive, Suite 800, Los Angeles, CA fully prescreened board-certified practicing specialists medical/legal consulting firm. Services/products of- 90025, (310) 571-3400, fax (310) 571-3420, Web site: in California. All recognized medical specialties. Plain- fered include 1) Life care planning/future medical www.sphvalue.com. Contact Nevin Sanli or Tom tiff and defense. Fast, thorough, objective, and cost-ef- costs, 2) Expert testimony, 3) Independent medical Pastore. Sanli Pastore & Hill, Inc. is a premier provider fective. Medical negligence, hospital and managed evaluation (IME) specialists identification, merit analy- of business valuation and valuation advisory services, care, personal injury, product liability, and toxic torts. sis. Medical chronologies, attendance at IMEs/media- specializing in litigation support and expert witness “A 92 percent win record” –California Lawyer maga- tion/arbitrations, and settlement conferences. testimony. Services include valuations for goodwill loss, zine. See display ad on page 77. estate and gift tax planning (family limited partner- TASAMED ships), lost profit analysis, mergers and acquisitions, BEHROOZ (BRUCE) BROUKHIM, MD Referrals in all practice areas. 1166 DeKalb Pike, Blue goodwill impairment, fairness and solvency opinions, 10767 Riverside Drive, North Hollywood, CA, 9763 Bell, PA 19422 (800) 523-2319, fax (800) 329-8272. ESOPs, incentive stock options, capital raises, corpo- West Pico Boulevard, Los Angeles, CA, (818) 755- Contact Jim Roberts. FIND JUST THE MEDICAL rate, partnership, and marital dissolutions. Comprehen- 6500, (310) 552-1488 (LA), fax (818) 980-7144. Con- EXPERT YOU NEED, effortlessly, with one call. Access sive economic, industry, and market research. Exten- tact Bruce Broukhim, MD. Board-certified orthopedic experienced specialists you might not find on your own sive experience in expert witness testimony, pretrial surgeon. Shoulder, knee, and hip surgery, arthroscopic for case review, IME’s, litigation support, and testimony preparation, and settlement negotiations. See display surgery, neck and back injury evaluation and treat- in over 875 medical/ health care fields. Save valuable ad on page 57. ment, personal injury, workers’ compensation, QME, search time. Categories include anesthesiology, cardi- IME, and AME. Member: American Academy of Ortho- ology, DNA, emergency care, forensic pathology, hos- MECHANICAL ENGINEERING pedic Surgeons, American Board of Ortho Surgeons, pital administration, managed care, medical equip- Arthroscopic Association of North America, Interna- ment, mold & mildew, nursing, orthopedics, oncology, CTG FORENSICS, INC. tional Society of Arthroscopy, Knee Surgery and Ortho pediatrics, psychiatry, sports medicine, surgery, and 16 Technology Drive, Suite 109, Irvine, CA 92618, Sports Medicine. Twenty years of experience in ortho- toxicology. Plaintiff, defense. Local, regional, and na- (949) 790-0010, fax (949) 790-0020, e-mail: mlewis pedic medical legal work and expert testimony. See tional referrals. Exceptional personal service for over 43 @CTGforensics.com. Web site: www.CTGforensics display ad on page 72. years. NO CHARGE FOR REFERRALS. Please see .com. Contact Dr. Malcolm Lewis, PE. Construction insert in this issue and display ad on page 77. related engineering, plumbing, mechanical (heating, JEFFREY KAUFMAN, MD ventilating, A/C) and electrical (power, lighting), energy 720 North Tustin Avenue, Suite 101, Santa Ana, CA MEDICAL/EMERGENCY MEDICINE systems, residential and nonresidential buildings, con- 92705, (714) 973-4600, fax (714) 547-1259. Web site: struction defects, construction claims, and mold. www.urodocs.net. Contact Jeffrey Kaufman, MD. BRUCE WAPEN, MD Urologic surgery. Extensive experience in urologic Emergency Medicine Expert MEDICAL case review and testimony. Numerous articles pub- 969-G Edgewater Boulevard, Suite 807, Foster City, lished and presentations made. Sterilization and vasec- CA 94404-3760, (650) 577-8635, fax (650) 577-0191, AMFS, INC. (AMERICAN MEDICAL FORENSIC tomy, impotency penile implants, urologic cancer treat- e-mail: [email protected]. Web site: SPECIALIST) ment, urologic trauma, and urinary incontinence. Mem- www.DrWapen.com. Contact Bruce Wapen, MD. 2640 Telegraph Avenue, Berkeley, CA 94704, (800) ber and officer in numerous medical associations. De- Board-certified emergency physician and experienced 275-8903, (510) 549-1693, fax (510) 486-1255, e-mail: tailed CV available. public speaker offers consultation, chart review, and [email protected], Web page: www.amfs testimony as an expert witness for plaintiff or defense .com. Contact Barry Gustin, MD, MPH, FACEP. LINC CASE MANAGEMENT involving litigation arising from the emergency depart- AMFS is a physician and attorney managed company 41 East Foothill Boulevard, Suite 102, Arcadia, CA ment. See display ad on this page. that provides initial in-house case screenings by 72 91006, (626) 462-9675, fax (626) 462-9679, e-mail: multidisciplinary physician partners. Medical experts [email protected]. Contact Jan Roughan. are matched to meet case requirements by AMFS

76 LOS ANGELES LAWYER / APRIL 2004 MEDICAL/NEUROLOGY ROGER V. BERTOLDI, MD 8610 South Sepulveda Boulevard, Suite 200, Los An- geles, CA 90045-4810, (310) 670-5555, fax (310) 670- 9222. Web site: www.bol.ucla.edu/~rbertold. Contact Angelica. Traumatic brain injury (TBI): Neuro behavior- anatomical-functional (PET, brain-mapping, neuropsy- chological) workup and treatment. Diplomate (ABPN) qualiﬁcation in clinical neurophysiology: electrodiag- nostics of electromyography (EMG), electroen- cephalography (EEG), and evoked potentials for carpal tunnel syndrome (CTS), complex regional pain syndrome (CRPS), back pain radiculopathy, peripheral nerve injuries, neurotoxic injuries, and chronic pain, so- matoform disorders, epilepsy, dementia, headache, assistant clinical professor of neurology, UCLA, AME, QME, IME.

MEDICAL/PATHOLOGY LESTHER WINKLER, MD Encino-Tarzana Regional Medicine Center Pathologist. (consulting emeritus status) 10155 Topeka Drive, Northridge, 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, and 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 A consulting group managed by Attorneys & Physicians years. Represented physicians before California Med- ical Board when requested by attorneys. Degrees/licenses: MD.

MEDICAL/TRAVEL DR. ALAN SPIRA 131 North Robertson Road, Beverly Hills, CA 90211, (310) 360-1331, fax (310) 360-1333. Contact Dr. Alan OVER 35 YEARS RESEARCH & EXTENSIVE EXPERT WITNESS EXPERIENCE Spira. Dr. Spira is a specialist in travel medicine and tropical diseases, with expertise in pretravel and post- travel medical care. He is a medical expert on international health, vaccinations and travel medications in- FOR THOSE WHO SEEK THE cluding malaria and other exotic diseases. Dr. Spira has extensive public speaking experience, taught in MOST QUALIFIED and the HIGHEST QUALITY medical schools, and published in the scientific litera- ture. He is also board-certified in medical acupuncture FORENSIC WORKMANSHIP. and emergency medicine. Certified by the Medical Board of California as an Expert Medical Reviewer. Available for consultation, treatment, chart review, and Extensive Test Facility and Equipment Available. as expert witness. Degree/licenses: MD, DTM&H, FRSTM, FAAEM, DABMA. See display ad on page 79.

MEDICAL MALPRACTICE Lighting & Illumination Fall from Height Light Intensity measurements, Stairways, balconies, ELLIOT D. FELMAN, MD. visual perception, times of platform, theatre pit, 2336 Santa Monica Boulevard, Suite 208, Los Angeles, CA 90404, (310) 453-0033, fax (310) 453-2114, e-mail: sunset, twilight, moon rise/set. pole. [email protected]. Contact Elliot D. Felman, MD. Board certified family practice. In practice 32 years. Project Failure Analysis Traffic Accident Experienced in both plaintiff and defense review, depo- Medical devices, Glass, Chairs Reconstruction sition, and testimony for evaluation of medical malprac- (all types), Ladders. Cars, Trucks, Pedestrian, tice. Available for evaluation of standard of care for Bicycle. family practice, general practice, and internal medi- Slip & Fall cine. Clinical faculty—UCLA School of Medicine. Scientific Testing of Slipperiness Biomechanics on tile, ceramic, walkways, JEFFREY KAUFMAN, MD supermarkets and retail industry. 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. Urologic surgery. Extensive experience in urologic Fred M. Johnson, Ph.D case review and testimony. Numerous articles pub- Professor of Physics, Fellow Am. Physical Society, Consultant to ANSI/BIFMA, lished and presentations made. Sterilization and vasec- Member SAE, ASTM, SATAI, & ICC, Author Textbook + 60 scientific publications. tomy, impotency penile implants, urologic cancer treatment, urologic trauma, and urinary incontinence. Mem- FOR A FREE CONSULTATION CALL (714) 526-6661 ber and officer in numerous medical associations. Detailed C.V. available. Fax: (714) 526-6662 PO Box 3011, Fullerton, California 92831

LOS ANGELES LAWYER / APRIL 2004 77 J. CARLOS MAGGI, MD JONATHAN S. RUTCHICK, MD, MPH, QME CA 90230, (310) 645-4404, fax (310) 645-9859, e-mail: Memorial/Miller Children’s Hospital. 2801 Atlantic 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA [email protected]. Web site: www.consultantsbureau Avenue, Long Beach, CA 90815, (562) 933-8743, fax 94941, (415) 381-3133, fax (415) 381-3131, e-mail: .info. Contact Lawrence Kashar, PhD, FASM. Dr. (562) 933-8744, e-mail: [email protected]. [email protected]. Web site: www.neoma.com. Kashar has over 40 years of experience in metallurgy Contact April Johnson. Pediatric pulmonary, pediatric Jonathan S. Rutchik, MD, MPH is a physician who is and materials science, with his specialty being failure critical care, pediatric hospital care, pediatric emer- board certified in both Neurology and Occupational analysis. He has extensive experience in litigation mat- gencies and resuscitation, pediatric trauma and burns, and Environmental Medicine. He provides clinical eval- ters for both plaintiff and defense, including such and intoxications. uations and treatment, including electromyography, of cases as Grimshaw v. Ford and the Pepcon explosion individuals and populations with suspected neurologi- in Henderson, NV. He has developed special copper MEDICAL LEGAL CONSULTING NETWORK, LLC cal illness secondary to workplace injuries or chemical and steel alloys, and has worked extensively with aero- 1624 North Wardman Drive, Brea, CA 92821, (714) exposure. Services include medical record and utiliza- space and microelectronic materials. He has taught 345-6645, e-mail: [email protected]. Contact Bobbi tion review and consulting to industrial, legal, govern- failure analysis techniques both for professional organi- Baguhn, CEO, MA, BSN, RN, CLNC. Medical record ment, pharmaceutical, and academic institutions on zations and in universities on the graduate level. Based review, organization and analysis. Interpret deviations topics such as metals and solvents, mold illness, Bay- on his outstanding professional achievements, he was from the standards of care. Product liability and motor chol issues, Persian Gulf War syndrome, musicians’ in- elected as a fellow of the American Society for Materi- vehicle accident case review. Preparation of time lines. juries, and others. See display ad on this page 64. als. See insert in this issue. Location of expert witnesses. Demonstrative evidence development. See display ad on page 62. MEDICINE COATES ENGINEERING SERVICES 4955 Winnetka Avenue, Woodland Hills, CA 91364, DR. ALAN SPIRA LINEBACK, INC. (818) 883-5886, fax (818) 883-5887, e-mail: djcoates 131 North Robertson Road, Beverly Hills, CA 90211, 2100 North Main Street, Suite 202, Santa Ana, CA @earthlink.net. Contact David J. Coates, PhD, PE. (310) 360-1331, fax (310) 360-1333. Contact Dr. Alan 92706, (714) 565-1012, e-mail: [email protected]. Failure analysis, metallurgical engineering, corrosion, Spira. Dr. Spira is a specialist in travel medicine and Contact James F. Lineback, MD. Internal medicine, products liability, aircraft, automobiles, bicycles, tools, tropical diseases, with expertise in pretravel and post- chest medicine, occupational medicine, toxic expo- chairs, ladders, medical implants, and copper and gal- travel medical care. He is a medical expert on interna- sure, death cases, diagnostic dilemmas, patient man- vanized steel plumbing. Experienced testifier. Call for tional health, vaccinations and travel medications in- agement, causation, and chart review. Twenty years of additional information and CV. cluding malaria and other exotic diseases. Dr. Spira consulting/expert witness experience in medical mal- has extensive public speaking experience, taught in practice, personal injury, workers compensation (QME, KARS ADVANCED MATERIALS, INC. medical schools, and published in the scientific litera- AMA). Degrees/Lic: MD, MS, FCCP, Board Certified In- Testing and Research Labs, 2528 West Woodland ture. He is also board-certified in medical acupuncture ternal Medicine/Pulmonary Medicine. See display ad Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax and emergency medicine. Certified by the Medical on page 74. (714) 527-7169, e-mail: [email protected]. Web site: Board of California as an Expert Medical Reviewer. www.karslab.com. Contact Drs. Ramesh J. Kar or Available for consultation, treatment, chart review, and MEDICINE/RHEUMATOLOGY Naresh J. Kar. Southern California’s premier materi- as expert witness. Degree/licenses: MD, DTM&H, als/mechanical/metallurgical/structural/forensics labo- FRSTM, FAAEM, DABMA. See display ad on page 79. JEFF SARKOZI, MD, FRCPC, FACR ratory. Registered professional engineers with 20-plus The California Institute for Fibromyalgia, Arthritis and years in metallurgical/forensic/structural failure analy- LESTHER WINKLER, MD Rheumatology, 801 North Tustin Avenue, Suite 503, sis. Experienced with automotive, bicycles, tires, fire, Encino-Tarzana Regional Medicine Center Pathologist. Santa Ana, CA 92705, (714) 973-4636, fax (714) 973- paint, plumbing, corrosion, and structural failures. We (consulting emeritus status) 10155 Topeka Drive, 4776. Contact Jeff Sarkozi, MD, FRCPC, FACR. work on both plaintiff and defendant cases. Complete Northridge, CA 91324, (818) 349-8568, fax (818) 993- Fibromyalgia, arthritis, occupational, industrial, and en- in-house capabilities for tests. Extensive deposition 9701. Contact Lesther Winkler, MD. Specialties: vironmental post-traumatic rheumatology/arthritis, syn- and courtroom experience (civil and criminal investiga- surgical and autopsy pathology, clinical pathology. dromes of chronic fatigue and plan, rheumatoid arthri- tions). Principals are fellows of American Society for Forty years of experience in reviewing medical records tis, osteoarthritis, neck pain, back pain, lupus, sclero- Metals and board-certified diplomates, American Board (hospital records, office records) with emphasis on derma, Raynaud’s syndrome, spondylitis, myositis, of Forensic Examiners. See display ad on page 60. pathology aspects, gross and microscopic, and rela- connective tissue and other rheumatologic diseases. tionships to general medical and hospital care. Experi- Consulting/expert experience: Consultation, case re- KARS ADVANCED MATERIALS, INC. ence with hospital bylaws, rules, and regulations, con- view, analysis, IME/AME, deposition, and trial experi- Testing and Research Labs, 2528 West Woodland sent issues, medical staff privileges. Also experienced ence. On behalf of silicone implant manufacturers and Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax in hospital healthcare law, medical, hospital and “out- physicians involved in silicone implant litigation, plaintiff (714) 527-7169, e-mail: [email protected]. Web site: side” ethical medical issues. Helped establish con- for 1-tryptophan EMS, industry/defendant and selected www.karslab.com. Contact Drs. Ramesh J. Kar or cepts and chaired hospital ethics committees for more plaintiffs for industrial/occupational/environmental/post- Naresh J. Kar. Southern California’s premier materi- than 10 years. Represented physicians before Califor- traumatic claims of fibromyalgia and syndromes of als/mechanical/metallurgical/structural/forensics labo- nia Medical Board when requested by attorneys. De- chronic fatigue and pain, arthritis, connective tissue, ratory. Registered professional engineers with 20-plus grees/licenses: MD. and other rheumatologic diseases. years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, BRUCE WAPEN, MD METALLURGICAL AND CORROSION paint, plumbing, corrosion, and structural failures. We EMERGENCY MEDICINE EXPERT ENGINEER work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and 969-G Edgewater Boulevard, Suite 807, Foster City, CONSULTANTS BUREAU, a division of courtroom experience (civil and criminal investigations). CA 94404-3760, (650) 577-8635, fax (650) 577-0191, KASHAR TECHNICAL SERVICES, INC. e-mail: [email protected]. Web site: Principals are fellows of American Society for Metals 5701 West Slauson Avenue, Suite 115, Culver City, CA www.DrWapen.com. Contact Bruce Wapen, MD. and board-certified diplomates, American Board of 90230, (310) 645-4404, fax (310) 645-9859, e-mail: Board-certified emergency physician and experienced Forensic Examiners. See display ad on page 65. [email protected]. Web site: www.consultantsbureau public speaker offers consultation, chart review, and .info. Contact Lawrence Kashar, PhD, FASM. Dr. testimony as an expert witness for plaintiff or defense Kashar has over 40 years of experience in metallurgy NETWORKS involving litigation arising from the emergency depart- and materials science with his specialty being failure ment. See display ad on page 76. LEGAL FRIENDLY TECHNOLOGIES analysis. He has extensive experience in litigation mat- (800) 475-4565, e-mail: [email protected]. ters for both plaintiff and defense, including such Web site: www.legalfriendly.com. Preeminent law office MEDICAL TOXICOLOGY cases as Grimshaw v. Ford and the Pepcon explosion technology firm. Legal Friendly integrates 20 law office GARY J. ORDOG, MD in Henderson, NV. He has developed special copper technologies into supporting the management and P/Professor, UCLA/Drew School, 23206 Lyons Avenue, and steel alloys, has worked extensively with aero- practice of law. Legal Friendly is a contributing author Suite 104, Santa Clarita, CA 91321, (661) 799-1689, space and microelectronic materials, and has been for the L.A. Bar Association’s Computer Counselor sec- fax (661) 799-3453, e-mail: [email protected]. Web heavily involved in corrosion and stress-corrosion prob- tion of Los Angeles Lawyer magazine and L.A. Parale- site: http://dwp.bigplanet.com/toxic. Contact Gary J. lems in plumbing, refineries and aircraft. He has taught gal Association Reporter Technology Corner. ABA Ordog, MD. Board-certified medical toxicologist. failure analysis techniques both for professional organi- compliant Web pages, networks, data discovery and Board-certified emergency medicine specialist. Med- zations and in universities on the graduate level. Based data recovery, remote communication, employee train- ical/legal expert on environment exposures, stachy- on his outstanding professional achievements, he was ing programs, courtroom multimedia animation and botrys and other building-related molds, poisonings, elected as a fellow of the American Society for Materi- presentation, document depositories, database pro- snake/insect/animal bites, and fetal toxicology. Author als. See insert in this issue. gramming and support, expert witness, and inter alia. of major textbook, Ellenhorn’s Medical Toxicology, the The importance of law firm technology cannot be over- most significant reference text on this subject. Avail- METALLURGY stated. Proper legal technology can win litigation, at- able for medical treatment, consultation, chart review, tract clients, reduce costs, and improve reputations. and expert witness. Degrees/license: MD (CA), FACEP, CONSULTANTS BUREAU, a division of “Engineers that think LAW.” FAACT, FABFE, FABME. See professional announce- KASHAR TECHNICAL SERVICES, INC. ment on page 62. 5701 West Slauson Avenue, Suite 115, Culver City,

78 LOS ANGELES LAWYER / APRIL 2004 People Plus Accounting People Plus Accounting People Plus Accounting

NURSING RICHARD C. ROSENBERG, MD ETHICS 18370 Burbank Boulevard, Suite 614, Tarzana, CA MED-LINK 91356, (818) 996-6800, fax (818) 996-2929, e-mail: WITHOUT 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) [email protected]. Web site: www.drrosenberg.com. COMPROMISE 333-5110, fax (626) 968-0064, e-mail: dorothypollock Contact Sheri Roberts. Orthopedic surgery, sports @adelphia.net. Contact Dorothy Pollock, LNCC. medicine, and physical therapy. Experienced in IME, Registered nurse with 35 years’ clinical experience. QME, agreed medical exams, med/legal reports, and Miod and Company has developed a solid Non-testifying services include case analysis/for merit, expert witness testimony. Personal injury and worker’s chronology, translation, written reports, medical record compensation. Additional office in Oxnard, California. reputation for ethical Forensic Accounting organization, billing fraud investigation; DME/IME ac- services. For all legal arguments that relate companiment including tape recording and written re- JERROLD M. SHERMAN, MD port. Expert witness and testifying services including to accounting issues, we deliver informed, 1260 15th Street, Suite 614, Santa Monica, CA 90404, objective, honest opinions. affidavit, arbitration, declaration, deposition, and trial. (310) 393-9829, fax (310) 476-8438. Contact Jan Class action and case management. Client prep for Lindsey. Orthopedic surgeon who is board certified as + Non-partisan/Expert deposition or trial. an independent medical examiner and chief executive Witness Testimony officer of Outpatient Surgery Center. Licensed in Cali- + Objective Business Appraisals MEDICAL LEGAL CONSULTING NETWORK, LLC fornia and Nevada. 1624 North Wardman Drive, Brea, CA 92821, (714) -Marital Dissolutions 345-6645, e-mail: [email protected]. Contact Bobbi PERSONAL INJURY -Estate Valuations Baguhn, CEO, MA, BSN, RN, CLNC. Medical record + Tax Consultation review, organization and analysis. Interpret deviations WHITE, ZUCKERMAN, WARSAVSKY, LUNA, + Thorough Investigative Accounting from the standards of care. Product liability and motor WOLF & HUNT vehicle accident case review. Preparation of time lines. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, -Asset Tracing Location of expert witnesses. Demonstrative evidence CA 91423, (818) 981-4226, fax (818) 981-4278, and -Reimbursement Claims development. See display ad on page 62. 333 City Boulevard West, 17th Floor, Orange, CA + Fraud Investigations 92868, (714) 939-1781, fax (714) 938-3874, e-mail: OBSTETRICS AND GYNECOLOGY [email protected]. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred CALL FOR OUR COMPANY BROCHURE GIL N. MILEIKOWSKY, MD 1 Warsavsky, and Bill Wolf. Expert witness testimony Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen LOS ANGELES OFFICE: for business, real estate, personal injury, and marital 11600 INDIAN HILLS ROAD Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or dissolution. Investigative analysis of liability, damage BULDING B, SUITE 300 (818) 981-1888, fax (310) 858-1303 or fax (818) 981- analysis of lost profits, lost earnings, and unjust enrich- MISSION HILLS, CA 91345-1225 1994. Web site: www.baby4you.net. Contact Gil N. ment, fraud investigation, business valuation, tax plan- TEL: (818) 898-9911 FAX: (818) 898-9922 Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparo- ning and preparation and mergers and acquisitions. www.miod-cpa.com scopy, and reproductive endocrinology. Diplomate, Hundreds of times as expert witnesses. Prior “big four” board certified by the American Board of OB/GYN. accounting firm experience. Specialties include ac- PALM DESERT OFFICE: Board eligible, American Board of Reproductive En- counting, antitrust, breach of contract, business inter- 74-478 HIGHWAY 111 docrinology Division. Fellow, American College of ruption, business dissolution, construction, fraud inves- SUITE 254, PALM DESERT, CA 92260 OB/GYN. Member of the American Society for Repro- tigation, asset tracing analysis, intellectual property TEL: (760) 779-0990 FAX: (760) 779-0960 ductive Medicine, Society of Assisted Reproductive People Plus Accounting (patent, trademark and copyright infringement and People Plus Accounting People Plus Accounting Technologies, former Medical Director IVF (In Vitro Fer- trade secrets), product liability, real estate, spousal tilization) at Northridge Hospital, former Chairman support, tax, valuation of businesses, unfair advertis- Laser and Safety Committee at Northridge Hospital and ing, unfair competition, and wrongful termination. See member of the Los Angeles County Medical Associa- display ad on page 53. tion. Author, numerous scientific papers and articles MEDICAL EXPERT published in peer review journals. Clinical assistant professor, OB/GYN at UCLA. See display ad on page 73. PHYSICAL MEDICINE AND REHAB, PAIN MANAGEMENT PAUL SINKHORN MD, FACOG HOLLYWOOD PAIN CENTER 2642 Marley Drive, Riverside, CA 92506, (909) 241- 1300 North Vermont Avenue, Suite 710, Los Angeles, ● 2745, fax (909) 779-9189, e-mail: [email protected]. Web CA 90027, (323) 953-2637, fax (323) 953-3520, e-mail: TROPICAL site: www.expertdoc.net. Contact C. Paul Sinkhorn [email protected]. Web site: www.jorgeminor.salu DISEASES MD, FACOG. Board-certified OB/GYN, clinical associ- .net. Contact Michelle Trumpler, PA-C. Board certi- ate professor, University of California Riverside, teach- fied in physical medicine and rehabilitation. Board cer- ing faculty, Arrowhead Regional Medical Center, pro- tified in pain management. IME, QME, courtroom and fessional liability committee for San Bernardino Medical deposition experience. Society, peer reviewer for California Medical Associa- ● TRAVEL tion, deposition/trial experience, expert laparoscopist, PLASTIC AND COSMETIC RECON- and high risk OB and GYN surgery. AAGL, AOA. De- MEDICINE STRUCTIVE SURGERY grees/license: MD, FACOG. ALFRED ROVEN, MD OIL & GAS FACILITIES 2811 Wilshire Boulevard, Suite 785, Santa Monica, CA 90403, (310) 315-1422. Contact Alfred Roven, MD. ● ACUPUNCTURE RANDALL CONSULTANTS Expert, both sides. Major trauma, burns, cosmetic 960 Berry Avenue, Los Altos, CA 94024, (650) 960- problems, nasal—facial fractures, scars, deformities, 1078, fax (650) 961-4050. Contact Warren O. Carlson. consultation, treatment, records review, depositions, Expert consultant for pipelines and oil and gas and court testimony. American Board of Plastic facilities. I am a graduate professional engineer with Surgery. American Board of Otolaryngology. more than 40 years’ experience in design, procure- ment, construction, operations, and maintenance of PLUMBING petroleum facilities. This includes pipelines, pumps, storage tanks, meters, regulators, controls, and PLUMBING INSPECTION PIPE EVALUATION instruments. SERVICES (PIPES) BOARD-CERTIFIED PHYSICIAN 43141 Business Center Parkway, Suite 201, Lancaster, ORTHOPEDIC SURGEON CA 93534, (661) 949-8811, fax (661) 940-7318. Con- ALAN SPIRA, MD tact Arnold A. Rodlo. Specialties include evaluation DTM&H, FRSTM, FAAEM, DABMA MARC J. FRIEDMAN, MD of plumbing systems and installation in housing, apart- 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- ment, condominium, and commercial. Expert on uni- 310.360.1331 PHONE 6600, fax (818) 901-6688, e-mail: [email protected]. form plumbing codes and installation standards. Web site: www.scoi.com. Contact Lonna Collier. Or- Twenty-five years’ experience, 8,000+ residential units 310.360.1333 FAX thopedic shoulder and knee, consulting, and expert and assorted commercial projects. Active plumbing witness testimony. IME, AME, QME and workers’ com- contractor. Call for CV. pensation evaluations. See display ad on page 75. 131 N. ROBERTSON BOULEVARD BEVERLY HILLS, CA 90211

LOS ANGELES LAWYER / APRIL 2004 79 POLYGRAPH protective service fields. Over 20 staff. Degrees/licenses: MA, PhD, other staff with various degrees. JACK TRIMARCO & ASSOCIATES POLY- GRAPH INC. JOHN DEIRMENJIAN, MD 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA Board Certified Forensic Psychiatrist. Assistant Clinical 90212, (310) 247-2637, fax (805) 383-9973, e-mail: Professor, UCLA School of Medicine. 249 East Ocean [email protected]. Web site: www.jacktrimarco.com. Boulevard, Suite 325, Long Beach, CA 90802. Also Contact Jack Trimarco. Former manager of the Fed- practices in Glendale at 100 North Brand Boulevard, eral Bureau of Investigation’s Polygraph program in Suite 603, Glendale, CA 91203, (562) 901-0500, fax Los Angeles. Former Inspector General Polygraph Pro- (562) 901-0501, e-mail: [email protected]. Expert ✒ Litigation support gram—Department of Energy. Nationally known and re- witness testimony: civil and criminal, insurance evalua- spected Polygraph Expert. I have the credentials you tions (disability, malpractice, hospital review, workers’ ✒ Expert witness would want when you have a client polygraphed, a compensation, record review, psychiatric damages, fit- case reviewed, a motion made regarding polygraph, or ness for duty, wrongful termination). Criminal expertise ✒ Forensic accountants an in-depth professional investigation. My unique back- includes competency to stand trial, sanity evaluation, ground allows me to bring the highest levels of service restoration of sanity, stalking, Internet crimes, malinger- ✒ Family law matters and expertise to any polygraph situation. Degrees/li- ing, sex offender evaluations, diminished capacity, and censes: BS Psychology; Certified APA, AAPP, CAPE, violence risk assessment. Expert in geriatric conserva- ✒ Business valuations AAFE. See display ad on page 49. torship and testamentary capacity. Expert in divorce and child custody evaluations. ✒ Loss of earnings PRISON MEDICINE COREY WEINSTEIN, MD, CCHP ARNOLD L. GILBERG, MD, PhD ✒ Damages 1199 Sanchez Street, San Francisco, CA 94114, (415) Associate Clinical Professor of Psychiatry, UCLA 333-8228, e-mail: [email protected]. Services avail- School of Medicine, a professional corporation, 9915 able: jail and prison medicine, correctional medical Santa Monica Boulevard, Suite 101, Beverly Hills, CA care delivery, correctional medical standards, correc- 90212, (310) 274-2304, fax (310) 203-0783. Contact When you need more than just tional medical policies and procedures, medical ne- Arnold L. Gilberg. Board certified and appointed by numbers... you can count on us... glect in jail and prison, health effects of control unit three governors to Medical Board of California 11th prisons, in-custody suicide and death, restraint proce- District MQRC 1982-1991. Certified in psychiatry and dures, and pepper spray. Thirty years of experience in psychoanalysis. All civil matters, experienced as expert Contact Michael Krycler general and family medicine. Member of task force that witness. Degrees/licenses: M.D., PhD. Licensed in Cal- PHONE (818) 995-1040 wrote the American Public Health Association Stan- ifornia and Hawaii. See display ad on page 71. dards for Health Services in Correctional Institutions FAX (818) 995-4124 (2003). Primary consultant for Improving Access to BRIAN P. JACKS, MD E-MAIL [email protected] Health Care for California’s Women Prisoners (UCSC Clinical Professor of Psychiatry, USC, 462 North Linden, Suite 441, Beverly Hills, CA 90212, (310) 274- VISIT US @ www.KETW.COM 2001). Expert in federal court on jail medical programs, suicide, and delivery of medical services in prison. 0684, fax (310) 274-5049. Contact Andrea Wilens, Medical consultant to Legal Services for Prisoners with office manager. Specialties: 25+ years’ experience 15303 VENTURA BOULEVARD, SUITE 1040 Children and Justice Now. Certified correctional health- with adults, teenagers, and children. Workers’ compen- SHERMAN OAKS, CALIFORNIA 91403 care provider. sation (QME, AME), personal injury, sexual harassment, posttraumatic stress, child custody, traumatic brain injury, medical malpractice, psychopharmacol- PROBATE LAW ogy, and malingering. Treatment: individual, marital, Expert Witness DARLING, HALL & RAE, LLP and family. Board certified: adults (1974), child-adoles- 520 South Grand Avenue, 7th Floor, Los Angeles, CA cent (1976). Trial experience. Degrees/license: MD, —Real Estate Matters— 90071-2645, (213) 627-8104, fax (213) 627-7795, physician/psychiatrist, FAACP. e-mail: [email protected]. Contact Matthew S. Rae, Jr. Attorney specialists in estate planning, trust, CAROLE LIEBERMAN, MD, MPH SPECIALIST IN: and probate law. Consultant and expert witness, spe- 247 South Beverly Drive, Suite 202, Beverly Hills, CA • Broker duties; Standard of Care cial and associate counsel, guardian ad litem, referee, 90212, (310) 278-5433, fax (310) 456-2458, e-mail: special administrator, and independent trustee. [email protected]. Contact Carole Lieberman, • Disclosure Issues – Buyer/Seller MD, MPH. Board-certified Forensic Psychiatrist, on • Agency Obligations PROSTHETICS/ORTHOTICS UCLA faculty, with winning record of testimony, deposi- • Real Estate Malpractice tions, and evaluations in hundreds of civil and criminal BEVERLY HILLS PROSTHETICS cases, including: high-profile, sexual harassment, en- • Mortgage Brokerage Law ORTHOTICS, INC. tertainment law, terrorism, priest misconduct, malprac- • Residential & Commercial Transactions 6300 Wilshire Boulevard, Suite 150, Los Angeles, CA tice, divorce, custody, abuse, personal injury, discrimi- 90048, (323) 866-2555, fax (323) 866-2560, e-mail: nation, wrongful termination, media copycats, sports, CREDENTIALS: [email protected]. Web site: www.bhpoinc.com. and violence. Consultant to Congress and the media. Supervising Broker Contact Keith Vinnecour, CPO. Expert witness testi- More than 10 years of experience. Excellent reference mony/life’s care plans. available upon request. Responsible for overseeing more than 7,500 RE transactions in major PSYCHIATRY/PSYCHOLOGY PUBLISHING California-based real estate companies. BARRINGTON PSYCHIATRIC CENTER BAY SHERMAN CRAIG & GOLDSTEIN, LLP General Counsel 1990 South Bundy Drive, Suite 320, Los Angeles, CA 11845 West Olympic Boulevard, Suite 845, Los Legal adviser for two of nation’s largest 90025, (310) 826-3235, fax (310) 447-0840. Contact Angeles, CA 90064, (310) 477-1400, fax (310) 479- real estate companies. David Gyepes, JD, PhD. Full range of civil litigation 0720,e-mail: [email protected]. Web site: www evaluation, sexual harassment, wrongful termination, .baysherman.com. Contact Peter Craig or Hal Jaffe. Hotline Attorney personal injury, neuropsychology, posttraumatic stress Many legal disputes involve financial, accounting, and Supervising Senior Counsel at disorders, child psychiatry/psychology, malpractice, income tax considerations. Bay Sherman Craig & Gold- California Association of Realtors (CAR) mold and toxic exposures, and Americans with (men- stein, LLP work together with counsel to resolve these DRE Master Instructor tal) disabilities claims. Litigation consultation regarding conflicts. We specialize in intellectual property publish- case planning, record review, and behind-the-scenes ing. In addition to expert witness testimony, we provide Author, DRE Disclosure Course. case preparation. Expert witness testimony in which the following: services prior to trial, financial, account- the right expert is matched to the case. ing and income tax issues defined, record analysis, Alan D. Wallace, Esq. economic fact-finding and analysis, deposition prepa- 14011 Ventura Blvd., Suite 406 BIDDLE CONSULTING GROUP, INC. ration assistance, and settlement negotiations. 2868 Prospect Park Drive, Suite 110, Rancho Cordova, Sherman Oaks, CA 91423 CA 95670, (916) 266-6722, ext. 113, fax (916) 266- QUESTIONED DOCUMENTS 818/501-0133 ■ FAX 818/905-6091 4170, e-mail: [email protected]. Web site: www.bid- www.expertwitnessre.com dle.com. Contact Dan Biddle, PhD, president. We RILE & HICKS, Forensic Document Examiners specialize in test development, EEO/AA reviews, vali- Howard C. Rile, Jr. and A. Frank Hicks e-mail: [email protected] dation studies (content, criterion-related), and adverse 100 Oceangate, Suite 670, Long Beach, CA 90802- impact analyses. We have a special emphasis in the 4312, (562) 901-3376, fax (562) 901-3378. Web site:

80 LOS ANGELES LAWYER / APRIL 2004 www.asqde.org/rile or /hicks.htm. Diplomates, Ameri- can Board of Forensic Document Examiners. Mem- bers, ASQDE, SWAFDE, SAFDE; Fellow AAFS. Com- bined 55+ years’ experience in examination and evaluation of disputed documents, including handwriting and signatures (wills, deeds, checks, etc.) medical records, business records, typewriting, printing, and/or other business machine processes, alterations, inden- tations, obliterations, and ink and paper questions. Fully equipped darkroom and laboratory, including VSC-4C and ESDA. Testiﬁed more than 500 times.

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, www.breader.com. Contact Daniel Powers, MD. Provider of primary diagnostic imaging services such as MRI/CT scans in adversarial disputes as well as second opinions and expert testimony. Will review malpractice cases. Take both plaintiff and defense referrals on merit. State-of-the-art technology available throughout California. Liens accepted. Licensed physician in 49 states plus District of Columbia. Degrees/li- See listings under censes: Board Certiﬁed Diagnostic and Nuclear Radi- ologist; B reader. See display ad on page 51. Banking, Construction, and Financial. REAL ESTATE 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: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.

ADVISORY SERVICES GROUP Coldwell Banker Commercial, 2502 West Artesia Boule- vard, Redondo Beach, CA 90278, (310) 937-7700, fax (310) 798-6836. Specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell Banker Commercial group, over 450 offices nationwide. Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering. Right-of-way eminent domain, structural defect reports, and construction defect reports. In-house CPA, general contractor, and engineers. Approved for IRS, federal, state, and municipal courts. Offices in Orange County, San Diego/Inland Empire and Northern California. See display ad on page 81.

FINESTONE & RICHTER 11601 Wilshire Boulevard, Suite 1900, Los Angeles, CA 90025, (310) 575-0800, fax (310) 575-0170, e-mail: [email protected]. Contact Howard N. Gould. Attorney malpractice in residential real estate, residential brokerage issues, and broker and ﬁnder issues.

SAMUEL K. FRESHMAN, BA, JD 6151 West Century Boulevard, Suite 300, Los Angeles, CA 90045, (310) 410-2300, fax (310) 410-2919. Con- tact Samuel K. Freshman. Attorney and real estate broker since 1956, banker, professor legal malpractice, arbitration, brokerage malpractice, leases, syndication, construction, property management, ﬁnance, due diligence, conﬂict of interest, title insurance, banking, escrow, and development. Expert witness 20-plus years in state and federal courts. Twenty-one published arti-

LOS ANGELES LAWYER / APRIL 2004 81 cles, arbitrator and mediator, general partner $300,000 ganizations, and have experience across a broad damages. Former VP/Partner IHOP, director to USA plus, shopping centers, apartments, and industrial prop- spectrum of industries and business issues. Degrees/li- chains, author, arbitrator, and expert witness. erty. JD Stanford (1956). See display ad on page 75. censes: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. RETALIATION FULCRUM FINANCIAL INQUIRY LLP 1000 Wilshire Boulevard, Suite 1650, Los Angeles, TEMMY WALKER, INC. HAIGHT CONSULTING CA 90017, (213) 787-4000, fax (213) 787-4144, 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760- 1726 Palisades Drive, Pacific Palisades, CA 90272, e-mail: [email protected]. Web site: www 3355, fax (818) 999-0826, e-mail: [email protected]. (310) 454-2988, fax (310) 454-4516. Contact Marcia .fulcruminquiry.com. Contact David Nolte. Our analy- Contact Temmy Walker. Specializes in expert witness Haight. Human resources expert knowledgeable in sis and research combined with unique presentation testimony and litigation consultant in matters regarding both federal and California law. Twenty-five years’ cor- techniques have resulted in an unequaled track record residential real estate, with emphasis on the customs porate human resources management experience plus in successful court cases and client recoveries. Our and practice, standards of care, disclosure require- over 14 years as a Human Resources Compliance personnel are full-time and focused on the services we ments, agency relationships, and broker supervision. Consultant in California. Specializations include sexual provide. We incorporate technology into our work to Complete assistance. Extensive transaction and court harassment, ADA/disability discrimination, other Title provide great results at a more reasonable cost. Our experience. Director California Association of Realtors, VII and FEHA discrimination and harassment, retalia- expertise encompasses damages analysis, lost profit master faculty instructor for continuing education tion, FMLA/CFRA, safety, and wrongful termination. studies, business and intangible asset valuations, fraud C.A.R. Excellent credentials and references. See Courtroom testimony and deposition experience. Re- investigations, forensic economic analysis, analysis of display ad on page 83. tained 60% for defense, 40% for plaintiff. Audit employ- computerized data, and computer forensics. See dis- er’s actions in preventing and resolving discrimination, play ad on page 2. ALAN D. WALLACE, ESQ. harassment, and retaliation issues. Assess human re- 14011 Ventura Boulevard, Suite 406, Sherman Oaks, sources policies and practices for soundness, for com- HAMILTON, RABINOVITZ & ALSCHULER, INC. CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: parison to prevailing practices, and for compliance. 6033 West Century Boulevard, Suite 890, Los Angeles, [email protected]. Contact Alan D. Wallace, Esq. Evaluate employer responsiveness to complaints and CA 90045, voice (310) 645-9000, fax (310) 645-8999. Expert witness and litigation consulting for general real effectiveness of employer investigations. Assist coun- E-mail: [email protected]. Contact Francine Rabi- estate matters, including law, custom and practice, sel via preliminary case analysis, discovery strategy, novitz, PhD, executive vice president. Public policy, agency, disclosure, broker malpractice, standards of examination of documents, and expert testimony. finance, and management consultants providing litiga- care for brokers, buyers and sellers. Broker and attor- tion support, simulation, and modeling to courts and ney. Involved as broker in more that 7,500 real estate ROOFING AND WATERPROOFING corporate/public litigants in land use, real estate devel- transactions. Department of Real Estate master instruc- ALLEN JACOBY ROOFING CONSULTANT opment, environmental protection, mass tort (including tor and author, former CAR hotline attorney, university 20549 Califa Street, Woodland Hills, CA 91367, (818) toxic tort), insurance, finance, housing, minority rights, law professor in real estate. Successfully testified in 991-1941, fax (818) 999-1143, e-mail: allenjacobyrc education, and employment cases. Degrees/license: dozens of cases. See display ad on page 80. @aol.com. Contact Allen Jacoby. Roofing/waterproof- MBAs, PhDs, cert. planners, MPAs, MCPs. ing evaluations, failure analysis, litigation support, and REAL ESTATE APPRAISAL expert witness testimony. President, Burtech Consul- ARTHUR MAZIROW tants. Member, American Arbitration Association. Com- Freeman, Freeman & Smiley, LLP, 3415 Sepulveda MAURICE ROBINSON & ASSOCIATES LLC mercial panel, Construction Specifications Institute. Boulevard, Suite 1200, Los Angeles, CA 90034, (310) 880 Apollo Street, Suite 125, El Segundo, CA Roof Consultant Institute, CA Contractors State License 255-6114, fax (310) 391-4042, e-mail: [email protected]. 90245, (310) 640-9656, fax (310) 640-9276, e-mail: Board Industry Expert Panel. Associate member, Amer- Web site: www.ffslaw.com. Contact Arthur Mazirow. [email protected]. Web site: www ican Bar Association. See display ad on page 72. Thirty-years of real estate law practice handling pur- .mauricerobinson.com. Contact R. Maurice Robin- chases, sales, leases, ground leases, loan transac- son, president. Hotel and real estate industry business VAN DIJK & ASSOCIATES, INC. tions, brokerage, and title matters. One of the principal issues, including market, economic and financial feasi- 28 Hammond, Suite G, Irvine, CA 92618, (949) 586- authors of the lease forms and purchase forms pub- bility, valuation, and disputes between owner-operator, 3828, fax (949) 586-7429, e-mail: info@vdaconsulting lished by the American Industrial Real Estate Associa- borrower-lender, and franchisor-franchisee. Fluent in .com. Web site: www.vdaconsulting.com. Contact Nils tion. Author, 100+ articles on legal aspects of real es- management contracts, license agreements, ground Van Dijk. Experienced staff of consultants specializing tate. Lecturer 300+ on leases and contracts for UCLA and building leases, partnership and JV agreement, in forensic/expert witness litigation services, plan/docu- Extension, CEB, and realty groups. Arbitrator with AAA. concession contracts, development agreements, and ment review, specification preparation, and quality See display ad on page 18. loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert witness control/management services. JACK KARP/NATIONAL PROPERTIES GROUP testimony, litigation strategy, consultation and support, 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, damage calculations, lost profits analysis, real estate SAFETY appraisals, deal structuring, workouts, new develop- (310) 377-6349, fax (310) 868-2880, e-mail: jlkarp CONSULTANTS BUREAU, a division of ment, strategic planning, market demand assessment, @cox.net. Industrial and commercial broker’s care and KASHAR TECHNICAL SERVICES, INC. acquisition due diligence, and economic, financial, and duties, professional obligations to clients. Mediation 5701 West Slauson Avenue, Suite 115, Culver City, CA investment analysis. and arbitration between brokers and clients regarding 90230, (310) 645-4404, fax (310) 645-9859, e-mail: disputes, ethical questions, and fee division. Deal [email protected]. Web site: www.consultantsbureau structuring and site location analysis. Real estate RECEIVER .info. Contact Morris Farkas, PE. Mr. Farkas has leases and purchase contracts and their interpreta- SALTZBURG, RAY & BERGMAN, LLP extensive experience in litigation matters for both de- tions. Author AIR Net and Gross Leases and AIR Stan- 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA fense and plaintiffs. He has been able to provide useful dard Offer and Agreement and Escrow Instruction for 90025, (310) 481-6700, fax (310) 481-6720. Contact analyses of a wide range of safety issues, primarily be- Purchase of Real Estate. See display ad on page 71. David L. Ray, Esq. Specializes in handling complex cause of his educational degrees in Civil Engineering, receivership matters, such as partnership and corpo- Public Administration and Safety and his professional LAW OFFICES OF RUBIN & JACOBSON, LLP rate dissolutions, including law firm dissolutions, and experience with Cal-Trans, Cal-OSHA, and the Public 1901 Avenue of the Stars, Los Angeles 90067, government enforcement receivership actions, such as Utilities Commission. He has taught courses in Occu- (310) 788-0983, fax: (310) 788-0984, e-mail: law.jac actions brought by the California Department of Corpo- pational Safety and Health, Accident Prevention, and @verizon.net. Web site: www.jurispro.com/mem rations, Department of Real Estate, Commodities Fu- Construction Safety in several universities and col- /lawrencejacobson. Contact Lawrence M. Jacobson. ture Trading Commission, and Federal Trade Commis- leges, and directly to the members of construction Practicing real estate law in California since 1968; For- sion. Nationally recognized in both the lender and liti- trade unions. See insert in this issue. mer VP-Legal Affairs, California Association of Realtors; gation communities as qualified to assist in compli- broker. Witness/consultant expertise in standard of cated and commercially sophisticated liquidations, re- SECURITY care; brokerage; lawyer malpractice, transactions, cus- organizations, and ongoing business operations. CONFIDENTIAL BUSINESS CONSULTANTS, LLC tom and usage. 2275 Huntington Drive, Suite 309, San Marino, CA 91108, (626) 419-0082, fax (626) 799-7960, e-mail: RESTAURANTS SCHULZE HAYNES & CO. [email protected]. Contact James F. Broder, 660 South Figueroa Street, Suite 1280, Los Angeles, LEON GOTTLIEB—US-INT’L RESTAURANT, CFE, CPP, FACFE, Author. “Risk Analysis and Secu- CA 90017, (213) 627-8280, fax (213) 627-8301, HOTEL & FRANCHISE CONSULTANT rity Surveys,” premise liability, adequate vs. inadequate e-mail: [email protected]. Web site: www 4601 Sendero Place, Tarzana, CA 91356-4821, USA, security procedures and practices, expert case analy- .schulzehaynes.com. Contact Karl J. Schulze or (818) 757-1131, fax (818) 757-1816, e-mail: lgottlieb sis and testimony, corporate procedures, training and Dana Haynes, principals. Specialties: forensic busi- @aol.com. Web site: http://members.aol.com/lgottlieb operations, kidnap, ransom, extortion, and workplace ness analysis and accounting, lost profits, economic /myhomepage/business.html. Specialties: USA/Int’l violence issues. Thirty-five years of law enforcement damages, expert testimony, discovery assistance, restaurant/hotel/franchise experience since 1960. and security experience, domestic and international. business and real estate valuations, construction Hands-on consultant and expert witness, all types of Listed in the Encyclopedia of Security Management as claims, corporate recovery, real estate transactions, restaurants, franchises, fast food, training, manuals, “One of the most highly recognized security authorities financial analysis and modeling, major professional or- safety, security, injury, operating standards, and P&L in the US.” CA PI Lic. 0021073.

82 LOS ANGELES LAWYER / APRIL 2004 SEXUAL HARASSMENT/ accountants regarding tax penalties and professional barriers. Hundreds of cases. Undergraduate work— DISCRIMINATION responsibility matters. UCLA; graduate work—Yale University.

HAIGHT CONSULTING TRAFFIC ENGINEER TRIAL CONSULTANTS 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia WILLIAM KUNZMAN, PE MOLLY MURPHY TRIAL CONSULTANT/ Haight. Human resources expert knowledgeable in 1111 Town and Country #34, Orange, CA 92868, MEDIATOR both federal and California law. Twenty-five years’ cor- (714) 973-8383, fax (714) 973-8821, e-mail: mail 1541 Ocean Avenue, 2nd Floor, Santa Monica, porate human resources management experience plus @traffic-engineer.com. Web site: www.traffic-engineer CA 90401, (310) 458-7720, fax (310) 458-7298, over 14 years as a Human Resources Compliance .com. Contact William Kunzman, PE. Traffic expert e-mail: [email protected]. Web site: www Consultant in California. Specializations include sexual witness since 1979, both defense and plaintiff. Auto, .jury-trialconsultant.com. Contact Molly M. Murphy. harassment, ADA/disability discrimination, other Title pedestrian, bicycle, and motorcycle accidents. Largest Theme development, voir dire strategy, jury question- VII and FEHA discrimination and harassment, retalia- settlement: $2,000,000 solo vehicle accident case naires, and jury selection, trial/evidence strategy, strat- tion, FMLA/CFRA, safety, and wrongful termination. against Caltrans. Before becoming expert witnesses, egy and design of case presentation, preparation of Courtroom testimony and deposition experience. Re- employed by Los Angeles County Road Department, expert/lay witnesses, presentation and strategy for tained 60% for defense, 40% for plaintiff. Audit employ- Riverside County Road Department, City of Irvine, and opening statement/closing argument, mock trials, jury er’s actions in preventing and resolving discrimination, Federal Highway Administration. Knowledge of govern- monitoring throughout the trial, and posttrial jury inter- harassment, and retaliation issues. Assess human re- mental agency procedures, design, geometrics, signs, views. ELMO system for trial presentation. sources policies and practices for soundness, for com- traffic controls, maintenance, and pedestrian protection parison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, Matthew Lankenau examination of documents, and expert testimony. 213-996-2549 [email protected] BRIAN H. KLEINER, PhD Professor of Human Resource Management, California State University, 800 North State College Boulevard, URS is the nation’s largest engineering, consulting and construction LH-640, Fullerton, CA 92834, (714) 879-9705, fax (714) services firm. URS specializes in the resolution of construction disputes. 879-5600. Contact Brian H. Kleiner, PhD. Specializa- tions include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and prac- Dispute Resolution & Forensic Analysis Technical Expertise tices, reasonable care, progressive discipline, con- Design/Construction Claims Architecture ducting third-party workplace investigations, retaliation, Environmental Claims Engineering RIFs, statistics, negligent hiring, promotion selections, Bid/Cost/Damage Analysis Scheduling CFRA/FMLA, compensation, wage and hours, ERISA, Construction Defect Analysis Construction Management workplace violence, and OSHA. Consultant to over 100 Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing organizations. Over 500 publications. Five-time winner Expert Witness Testimony Environmental of CSUF Meritorious Performance Award. Extensive ex- Insurance/Bond Claims Geotechnical perience giving testimony effectively.

STEPHEN J. MOREWITZ, PhD & ASSOCIATES 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- 1587, fax (818) 345-9981, e-mail: morewitz@earthlink .net. Web site: http//home.earthlink.net/~morewitz/ REAL ESTATE/REAL PROPERTY MATTERS Contact Dr. Steve Morewitz. Disability and sexual harassment. Evaluates disability and sexual harassment. Provides other experts. Eighteen years of experience. Professor and dean, author of three books and Specializations: over 60 abstracts and articles. Customs & Standards of Practice, Agency Relationships Material Disclosure in Residential Real Estate Sales STATISTICS twobluecats.com 610 Esplanade, Unit four, Redondo Beach, CA 90277, (310) 540-2372, e-mail: [email protected]. Web site: www.twobluecats.com. Contact Dean S. Barron. We do statistics! Specializing in labor law, overtime violations, minimum wage, prevailing wages, commission plans, automotive, construction, toxic mold, financial, and discrimination. Plaintiff, defendant, union, individual, class action, class certification, convincing declarations, depositions, mediations, ® penalty/damage calculations. twobluecats.com presi- TEMMY WALKER, REALTOR dent, Dean S. Barron, has been published and appeared on CNN, basic to elegant statistics, including Real Estate Consulting Expert Witnessing 95% confidence intervals, regression analyses, t-tests, CA, FL, NV, NY, domestic, international. Count on SERVICES RENDERED: twobluecats.com for all your statistics! Litigation Consulting, Expert Testimony, Broker Practice, Liability Audit, Educational Services, Industry Mediator TAXATION KAJAN MATHER & BARISH Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist, 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA California Association of Realtors® Director Since 1981, National Association of 90212, (310) 278-6080, fax (310) 278-4805, e-mail: Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education [email protected]. Web site: www.taxdisputes Association, Past President, San Fernando Valley Board of Realtors .com. Contact Elliott H. Kajan. The firm’s practice is devoted to representation of taxpayers before the Inter- nal Revenue Service, Franchise Tax Board, State 5026 Veloz Avenue, Tarzana, California 91356 Board of Equalization, and California Employment De- Telephone (818) 760-3355 • Pager (818) 318-2594 velopment Department, involving tax audits, administration appeals proceedings, tax collection matters, e-mail: [email protected] complex tax litigation, and criminal tax investigations CALIFORNIA BROKER LICENSE NO. 00469980 and trials. The firm also represents and advises

LOS ANGELES LAWYER / APRIL 2004 83 ethics opinion no. 510

Los Angeles County Bar Association Professional Responsibility and Ethics Committee

Fee Sharing between Financial Planning Company and Lawyer Employee Rendering Legal Services to Customers

SUMMARY: An attorney may not ethically accept employment on a salaried basis with a ﬁnancial planning company where: 1) the attorney forms an attorney-client relationship with any customer of the company; 2) the company bills each customer a set percentage of the customer’s estate as a fee representing both the attorney’s legal services and the nonlegal ﬁnancial planning services provided to the customer by the company; and 3) the company does not account for the amount of legal fees generated by the attorney’s legal services and direct those fees only to the attorney. Such an arrangement would be an improper division of fees with nonlawyers, prohibited by Rule 1-320 of the California Rules of Professional Conduct. It also might constitute forming a partnership with nonlawyers, prohibited under Rule 1-310, and may violate other ethical rules.

AUTHORITIES CITED: Statutes and Rules: California Business and Professions Code Section 6068(e); California Rules of Professional Conduct, Rule 1-310; California Rules of Professional Conduct, Rule 1-320; California Rules of Professional Conduct, Rule 1-400; California Rules of Professional Conduct, Rule 1-600; California Rules of Professional Conduct, Rule 3-310(F); California Rules of Professional Conduct, Rule 4-200; ABA Model Rules of Professional Conduct, Rule 5.4; D.C. Rules of Professional Conduct, Rule 1.7; D.C. Rules of Professional Conduct, Rule 5.4. Cases: Gassman v. State Bar, 18 Cal. 3d 125 (1976); Cain v. Burns, 131 Cal. App. 2d 439 (1955); Gafcon, Inc. v. Ponsor & Associates, 98 Cal. App. 4th 1388 (2002); People v. Volk, 805 P. 2d 1116 (Colo. 1999). Ethics Opinions: California State Bar Formal Opinion No. 1999-154; California State Bar Formal Opinion No. 1997-148; California State Bar Formal Opinion No. 1995-141; Los Angeles County Bar Association, Formal Opinion No. 457 (1990); Los Angeles County Bar Association, Formal Opinion No. 431 (1984); ABA Formal Opinion No. 95-392.

FACTS AND ISSUES PRESENTED: The Attorney, an estate planning attorney (the “Attorney”), often does business with a financial planning company (the “Company”). The Company has invited the Attorney to become an employee. The Attorney would be expected to render legal services to the Company’s customers,1 who would also receive financial planning advice directly from the Company’s nonlawyer employees. The Company would not charge the customers separately for the legal services. Instead, the Company would charge customers based on a percentage of the total value of the customer’s estate, whether the Attorney provides legal services or not. The customers would pay the fees directly to the Company. The Attorney would be paid a set salary as an employee, whether or not the Attorney provides legal services to particular customers of the Company. The Attorney seeks this committee’s opinion on whether this proposed arrangement is prohibited by the California Rules of Professional Conduct and, as specifically noted by Attorney, Rule 1-310 (Forming a Partnership with a Non-Lawyer)2 or Rule 1-320 (Financial Arrangements with Non-Lawyers).3

DISCUSSION provides that “[n]either a member nor a law ﬁrm shall directly or indi- In General, California Rules Prohibit Members from Sharing rectly share legal fees with a person who is not a lawyer….”4 The ratio- Legal Fees with Nonlawyers. nale behind this rule and its intended application are, primarily, to pro- Lawyers can ethically be employed by nonlawyers in a wide vari- tect the integrity of the attorney-client relationship, to prevent control ety of situations, even if the lawyers perform legal services. The over the services rendered by attorneys from being shifted to lay per- application of Rule 1-320 will depend on the particular circumstances sons, and to ensure that the best interests of the client remain para- of each speciﬁc situation. We limit this opinion only to the facts pre- mount. See, e.g., Gassman v. State Bar, 18 Cal. 3d 125, 132 (1976); sented in this inquiry. Gafcon, Inc. v. Ponsor & Associates, 98 Cal. App. 4th 1388, 1418 (2002); With limited exceptions that do not apply here, Rule 1-320(A) California State Bar Formal Opinion No. 1997-148.

84 LOS ANGELES LAWYER / APRIL 2004 APRIL 2004 MASTER 3/12/04 11:47 AM Page 85

Based on the facts presented by the wise apply.” See California State Bar Formal ered a similar issue and reached the same Attorney, we conclude that the Attorney’s Opinion No. 1997-148 (even if marketer estab- conclusion. See Los Angeles County Bar financial arrangement with the Company is lishes relationship with client by giving sem- Association, Formal Opinion No. 431 (1984). prohibited by Rule 1-320(A). See California inar on living trusts, and collects fees directly In Opinion 431, the committee considered a State Bar Formal Opinion No. 1999-154 (“To from client for purpose of having attorney company that provided business manage- the extent that [a lawyer’s] company per- prepare such a trust, if marketer thereafter ment services for entertainment industry forms legal services or offers legal advice, shares fees with attorney for attorney’s work clients, and that proposed to enter into an rule 1-320(A) prohibits [the lawyer] from in preparing the trust, this is impermissible agreement with a law firm to provide ser- sharing with a non-lawyer any fee received as sharing of legal fees); see also Cain v. Burns, vices directly to the company’s clients. The compensation for those services or advice.”). 131 Cal. App. 2d 439, 442 (1955) (attorney paid company would be primarily responsible for The threshold question is whether the investigator for services rendered to clients, collecting the client’s payments for the legal inquiry presents a situation in which there contingent upon legal recovery obtained on fees and, in turn, compensating the law firm are “legal fees” paid by the customers of the behalf of client; the fact that investigator was for its fees and expenses. However, the com- Company. We believe that there would be paid from attorney’s “‘general fund’ instead of pany also proposed to charge to each client under the arrangement presented. The directly from the attorney’s fees upon which a 20 percent fee override, as pure profit for the Attorney would be providing legal services to it was based” does not remove this from the company, based upon the legal service hours the Company’s customers. Because the legal prohibition of splitting legal fees). provided by the law firm to the client. This services provided by the Attorney to those cus- It could be argued that if the portion of the committee determined that the 20 percent tomers would be part of the “package” of ser- fees generated by the Company’s customers fee override is “a clear case of fee splitting” vices rendered by the Company, the fees paid that is attributable directly to the Attorney’s under the rule that preceded Rule 1-320. Id. by those customers would consist in part of legal services does not exceed the Attorney’s In the situation presented in Opinion 431, legal fees. That the payments made by the salary, the Attorney could not be deemed to the fee override determined to be improper Company’s customers would be dictated by a “share” these legal fees. In other words, if all as it related to the law firm was “based solely percentage of the value of the estate, rather of the legal fees generated by the Attorney’s on the number of service hours rendered by than broken down into nonlegal versus legal legal services would cover only the Attorney’s Law Firm to the clients,” whereas in this fees, is not determinative. Whatever the pay- salary, there would be none to be shared with inquiry, the fee collected from customers by ment by the customer, if the customer has the Company (and thus none to be shared the Company is not based on the number of received legal services through an attorney- with the Company’s nonlawyer principals). legal service hours provided by the Attorney. client relationship with the Attorney, the cus- This question was considered by the ABA Nonetheless, the material aspect of the pro- tomer’s payment would be directed at least in Standing Committee on Ethics and hibited fee-splitting arrangement in Opinion part toward legal services. Whether the Professional Responsibility, in relation to 431 was that the company received compen- Company promotes only the financial plan- Model Rule of Professional Conduct 5.4, sation that was directly tied to legal services ning services it provides or also the legal ser- which provides—in language materially sim- provided by the law firm. To an extent that has vices provided by Attorney as justifications for ilar to Rule 1-320—that a “lawyer or law firm not been quantified by the Attorney in this the fee it collects from its customers, or as an shall not share legal fees with a non-lawyer.” inquiry, the Company would receive com- inducement to attract customers, the fees col- The ABA’s Standing Committee determined pensation from its customers that may be in lected would necessarily represent both. that, in providing legal services to others, “a part based on legal services provided by the Having concluded that the payments to the corporation may not reap profits from the Attorney. It is irrelevant to our conclusion Company by the customers include legal fees, work of its in-house attorneys.” ABA Formal that the Company’s compensation is also it is clear under the facts presented that legal Opinion No. 95-392 (emphasis added). If the derived, to some similarly unquantified extent, fees are being shared with nonattorneys. The facts presented in this inquiry showed this to from financial planning services provided by fact that the Attorney is not directly com- be the case—namely, if the legal fees gener- nonlawyers.6 pensated by the Company’s customers does ated by the Attorney’s legal services were not change this conclusion. There is improper paid solely to the Attorney, and the Company The Prohibition of Legal Fee-Splitting fee splitting under Rule 1-320 where income did not profit from these legal fees—then Arrangements with Nonlawyers Is derived in part from the Attorney’s legal ser- there would be no violation of Rule 1-320. Consistent with Various Other California vices for the Company’s customers—i.e., the Whether other rules would be violated by Legal and Ethical Requirements. Attorney’s legal fee—is shared with the such an arrangement would still need to be There are various ethical guidelines for Company itself.5 considered, but those are not the facts pre- members engaging in business relationships Because the Company would derive sented in this inquiry. with nonattorneys found in other California income (and the Company’s nonlawyer prin- On the facts of this inquiry, the Company rules that are consistent with the general fee- cipals would thus be compensated) from a would not charge its customers separate fees splitting prohibition found in Rule 1-320. For fund generated at least in part by the fees for legal services. Because of this, it cannot example, Rule 1-600 expressly addresses the received from the Company’s customers, at readily be determined what is being charged concern arising from a nongovernmental least some of whom will have received legal to the customer for legal services. Therefore, entity that furnishes or pays for legal ser- services from the Attorney, we conclude that the danger remains that the Company “is in vices, prohibiting any licensed attorney from the Attorney would be violating Rule 1-320’s a position to view its legal department as a belonging to any organization that interferes prohibition against sharing legal fees with profit center.” Id. Rule 1-320 was intended to with his or her independent professional judg- nonlawyers “directly or indirectly.” The words prohibit this and the concomitant danger that ment.7 Also, it is impossible to tell, at least on “or indirectly” are significant. It is consistent the Company would exercise control over the facts presented, what fee would actually with the rule’s breadth that “a mere change the matters handled and services rendered by be charged to the Company’s customers in payment arrangements cannot provide a the Attorney for the Company’s customers. specifically for the legal services rendered to subterfuge to avoid ethical rules that other- This committee has previously consid- them by the Attorney. As raised in this com-

LOS ANGELES LAWYER / APRIL 2004 85 APRIL 2004 MASTER 3/12/04 11:47 AM Page 86

mittee’s Formal Opinion No. 431, it is thus dif- arrangement when an attorney has an attorney-client issue raised with respect to the insurance company’s relationship with a financial planning company only. employment of counsel for the insured was whether the ficult, if not impossible, to determine if the This opinion also does not address the possibility that, insurance company was engaged in the unauthorized legal fee charged “disproportionately exceeds even if there were no attorney-client relationship practice of law. In ruling that this arrangement did not the quality or amount of legal services ren- between Attorney and any customer of Company, the constitute the practice of law by the insurer, the court dered so as to shock the conscience of ordi- activities of Company itself would amount to the prac- in Gafcon noted 1) an insurance company has a direct narily prudent attorneys practicing in the tice of law. See, e.g., People v. Volk, 805 P. 2d 1116, 1118 pecuniary interest in the underlying third party action (Colo. 1999) (attorney disciplined for aiding the unau- against its insured, and 2) having such an interest, it is community”—in other words, if the fee is thorized practice of law under a disciplinary rule sub- entitled to have counsel represent its own interests as unconscionable under Rule 4-200. This is yet stantially the same as Rule 1-300 where the attorney well as those of the insured, as long as their interests are another danger with fee-splitting arrange- admitted that the counseling and sale of living trusts by aligned. Gafcon, Inc. v. Ponsor & Assocs., 98 Cal. App. ments between lawyers and nonlawyers, a company that was the attorney’s client, where the com- 4th 1388, 1414 (2002). The court in Gafcon rejected the when there is no breakdown of the fees by pany acted through nonlawyers, constituted the unau- argument that counsel’s status as a salaried employee services rendered. thorized practice of law by the company). in this circumstance inherently creates a temptation 2 Unless otherwise stated, all rule references in this opin- for counsel to violate or disregard ethical rules. Id. An additional consideration is the appli- ion are to the California Rules of Professional Conduct. 6 The inquiry also raised the issue of whether the pro- cation of Rule 3-310(F),8 which requires that 3 The committee notes that the topics of multidiscipli- posed arrangement violates Rule 1-310. Rule 1-310 pro- an attorney not accept compensation from nary practice, and associations between lawyers and hibits an attorney from forming a partnership with a someone other than the client, unless there nonlawyers in combined practices of providing legal and nonlawyer. Considering the application of both of these is no interference with the attorney’s inde- nonlegal services to clients, are in a state of flux. rules in the context of “[a] lawyer providing non-legal Nationally and internationally, jurisdictions and bar services through non-lawyer employees or business pendent judgment and certain other require- organizations are reconsidering the practical realities entities in which non-lawyers also have an interest,” the ments are met. The general purpose of this of modern legal practice. The District of Columbia, for State Bar has determined that “[t]ogether, these rules restriction is to ensure that no one other than example, recently revised its rules to allow lawyers to require that both the structure of the business rela- the client has influence or control that would practice law within entities owned or controlled by tionship and the division of income from non-legal ser- in any way impair the attorney’s loyalty to nonlawyers, under certain circumstances. See D.C. vices be separate and distinct from the lawyer’s law prac- RULES OF PROF’L CONDUCT 1.7, 5.4; 70 U.S.L.W. 2805, tice.” California State Bar Formal Op. No. 1995-141. the client. In the situation at issue, circum- 2806. California does not authorize lawyers to practice 7 Rule 1-600 states: “A member shall not participate in stances could arise that would place the wel- in multidisciplinary associations. a nongovernmental program, activity, or organization fare or interest of the Company, which pays 4 Rule 1-320(A) provides: furnishing, recommending, or paying for legal ser- the Attorney’s salary, at odds with the best Neither a member nor a law firm shall directly vices, which allows any third person or organization to interests of the client, to whom the Attorney or indirectly share legal fees with a person interfere with the member’s independence of profes- who is not a lawyer, except that: sional judgment, or with the client-lawyer relationship, owes undivided loyalty. (1) An agreement between a member and a law or allows unlicensed persons to practice law, or allows An additional complication could occur if firm, partner, or associate may provide for the any third person or organization to receive directly or the Attorney receives confidential information payment of money after the member’s death to indirectly any part of the consideration paid to the from the client that might have some impact the member’s estate or to one or more speci- member except as permitted by these rules, or other- on the Company. This could potentially fied persons over a reasonable period of time; wise violates the State Bar Act or these rules.” 8 threaten the Attorney’s obligation to “maintain or Rule 3-310 (F) states: (2) A member or law firm undertaking to com- (F) A member shall not accept compensation and preserve the confidences and secrets” of plete unfinished legal business of a deceased for representing a client from one other than the client, pursuant to California Business member may pay to the estate of the deceased the client unless: and Professions Code Section 6068(e)9 member or other person legally entitled thereto (1) There is no interference with the In all, these issues also relate to the policy that proportion of the total compensation which member’s independence of profes- underlying the fee-splitting prohibition found fairly represents the services rendered by the sional judgment or with the client- deceased member; lawyer relationship; and in Rule 1-320, and its application to the situa- (3) A member or law firm may include non- (2) Information relating to represen- 10 tion presented in this inquiry. member employees in a compensation, profit- tation of the client is protected as sharing, or retirement plan even though the required by Business and Professions CONCLUSION plan is based in whole or in part on a profit-shar- Code section 6068, subdivision (e); Here, the financial arrangement proposed ing arrangement, if such plan does not cir- and cumvent these rules or Business and (3) The member obtains the client’s between the Attorney and the Company Professions Code section 6000 et seq.; or informed written consent, provided would involve the sharing of legal fees, col- (4) A member may pay a prescribed registra- that no disclosure or consent is lected from the Company’s customers in part tion, referral, or participation fee to a lawyer required if: based on legal services rendered to them by referral service established, sponsored, and (a) such nondisclosure is oth- the Attorney, with the Company’s nonlawyers. operated in accordance with the State Bar of erwise authorized by law; or This is prohibited by Rule 1-320. California’s Minimum Standards for a Lawyer (b) the member is rendering Referral Service in California. legal services on behalf of any This opinion is advisory only. The com- 5 Compensation paid by an attorney to nonattorney public agency which provides mittee acts on specific questions submitted ex employees, even if that compensation is derived from legal services to other public parte, and its opinion is based on the facts set legal fees, is generally not prohibited by Rule 1-320, so agencies or the public. forth in the inquiry submitted. long as the amount of compensation is set in advance 9 California Business and Professions Code Section and not subject to or contingent upon the legal fees col- 6068(e) reads, in part: lected by the attorney. See CAL. RULES OF PROF’L It is the duty of an attorney to do all of the fol- 1 The facts presented by Attorney in his inquiry indicate CONDUCT R. 1-320(A)(3); Los Angeles County Bar lowing:…. that his job at Company would require him to “provide Association, Formal Op. No. 457 (1990) (bonus paid to (e) To maintain inviolate the confidence, and legal services” to Company’s customers. The choice of paralegal by attorney does not constitute sharing of legal at every peril to himself or herself to preserve this language indicates, and we assume for purposes of fees because not based on percentage of attorney’s the secrets, of his or her client. this opinion, that Attorney would be in an attorney- fees or on fee the attorney was to receive on particular 10 Another rule that may be implicated in the described client relationship with Company’s customers directly. case, and not expected by paralegal). facts is Rule 1-400. Assuming the Company solicits This opinion also assumes that Company is owned, at The facts of the inquiry are unlike those of Gafcon. business in a way that includes legal services among its least in part, by nonlawyers or, if owned entirely by Gafcon involved the representation of an insured party offerings to clients, the Attorney would need to be sure lawyers, is not authorized to practice law in California. by the attorney employee of an insurance company. No that such solicitations comply with the rules relating to The committee’s opinion thus does not address any legal fee was paid by the insured, and the primary advertising and solicitations. question regarding the impact of a similar financial

86 LOS ANGELES LAWYER / APRIL 2004 computer counselor

By Gordon Eng

Is There a Bluetooth in Your Future?

A new wireless your cell phone while driving, factor is that with a wireless head- as a smaller ear loop and an over- getting rid of the wire that con- set, security is not likely to match the-head band for holding the technology offers nects the headset to the cell that of a wired connection. The headset in place. Jabra offers dif- phone eliminates one distraction. short range of the signal provides ferent size ear buds (the part of hope of eliminating A growing number of companies an inherent level of protection, the headset that rests in your are making Bluetooth headsets, and Bluetooth is capable of sup- ear). The microphone on the the cords that bind and among the more recent mod- porting 128-bit encryption. I models listed above is attached to els are the Plantronics M3000 tested a Bluetooth headset in a a short boom that does not have electronic gadgets and M1000 (http://plantronics room where several others had to reach to the front of the mouth, .com), the SonyEricsson HBH- Bluetooth headsets, and no one presumably the result of a desire 65 (www.sonyericsson.com), the could receive other conversations to make the headset look less luetooth is a short-range Nokia HDW-2 (www.nokia.com), with their headsets. Never- ungainly. Amazingly, these micro- wireless communication the Jabra Freespeak BT200 theless, Bluetooth is based on phones do pick up the user’s Bprotocol that can be used (www.Jabra.com), the Cardo radio waves that move through speech. While the microphones for data and voice transmission. Allways Bluetooth headset (www the air. Cell phones themselves generally perform reasonably The protocol uses the 2.4 GHz .allways1.com), and the Motorola offer imperfect protection, and well in an environment with some band, and the technical specifi- HS 810 (www.motorola.com). thus users of cell phones and background noise, wind still cre- cations for Bluetooth security are Do not despair if your phone Bluetooth cannot be completely ates significant problems. comparable to other wireless net- does not support Bluetooth. assured that their communica- As with a cell phone signal, working protocols. The range is Some manufacturers, including tions will be secure from a per- the connection between your about 30 feet, and power con- Jabra, make adapters that plug sistent and well-informed hacker. headset and cell phone can be sumption is relatively low, which into the external microphone port Much more simply, security dropped if there is too much makes Bluetooth ideal for cell and allow communication with a based on technology is academic interference. The connection phones and PDAs. Bluetooth headset. Unfortunately, for those who use cell phones in quality will be much better if the Infrared data transfer for an adapter adds another item to public. cell phone is on your dashboard short distances without wires was dangle from your cell phone. Aesthetics and fit are a matter or desk instead of inside your implemented several years ago Since most cell phones are not of personal taste. Most of the briefcase. It is also helpful if you in PDAs, laptops, and printers. ready for Bluetooth, it is surpris- devices hang over or around the keep the headset on the same This technology is still available, ing that more companies are not ear, and they are lightweight. All side of your body as your cell but one of its limitations is that making adapters. When buying the units I tested feel relatively phone. Many headsets advertise the infrared transmitter has to an adapter, it is important to make comfortable, but after a half-hour advanced features, such as auto be aligned in line of sight with sure it is compatible with your most of the units began to cause redial and voice-activated calling. the receiver. With infrared, if you phone’s port. Many Nokia some discomfort. Those who The fine print on these claims is want to print from phones, for exam- wear a headset frequently may that your phone has to have these your laptop you Gordon Eng is a ple, have a propri- sufficiently toughen their ear. The features. Headsets support these have to position it business transaction- etary port configu- Jabra unit appears to be the least functions rather than perform so that its infrared al and real estate ration. noticeable of those I tried them independently. port is pointing at lawyer in Torrance. One factor to because most of the unit goes Retail prices for Bluetooth the receiver on the consider when behind the ear; the others gen- wireless headsets range from printer. In an im- selecting a Blue- erally cover the ear. The Cardo roughly $100 to $150. On the provement over tooth headset is unit can be clipped to eyeglasses, other hand, a wired headset may infrared, Bluetooth that headsets run which I found to be a comfort- cost between $20 to $30, with only does not require line-of-sight on battery power. The average able alternative. Consider trying deluxe models costing more. One alignment. battery life is around 3 hours of each alternative for fit, especially notable newcomer to the wired The technology is suited to talk time, although the Plan- if you intend to use the headset headset market is The Boom cell phone headsets because the tronics M3000 purports to have for prolonged periods of time. (www.theboom.com), which wired connections between them 5.6 hours of talk time, and the Plantronics offers a number of retails for $150 and has a micro- and cell phones frequently Jabra Freespeak 250 purports to accessory options that can cus- phone on a boom that extends to become tangled. If you must use have 8 hours of talk time. Another tomize the fit of the headset, such the mouth. The Bluetooth head-

LOS ANGELES LAWYER / APRIL 2004 87 APRIL 2004 MASTER 3/12/04 11:47 AM Page 88

sets cost roughly the same, but The Boom individually and share a wireless printer. puters to communicate with Bluetooth headset offers hands-free use even in a noisy Hewlett Packard (www.hp.com) recently devices. About the size of your thumb, environment. I found the sound capture qual- introduced a Bluetooth mobile printer, the adapters range in price from $25 to $50, and ity of The Boom unit to be exceptional com- Deskjet 450wbt. Additionally, a number of they are designed to plug into a USB port. To pared to wired and wireless offerings. The companies are making Bluetooth adapters use Bluetooth for multiple devices, users Boom may look more geek than chic, but for their printers. For complicated or lengthy must make sure that the central Bluetooth the reward in sound quality for the longer documents there may be a slight reduction in adapters or hubs in a network support mul- boom is ample. speed compared to a cable connection, but in tiple profiles, which are the settings for dif- general the bottleneck with printing is not ferent Bluetooth devices. To prevent signals Other Bluetooth Applications the transmission speed but the printer speed. from overlapping, a separate profile is needed Bluetooth technology can also be used in Bluetooth can be a good solution for an office for each headset, printer, keyboard, and what are called private networks, in which a that has one printer and multiple users in a mouse in a network. There does not seem to user or users can connect to peripheral single room who are not already connected to be a way to upgrade the number of profiles devices wirelessly. For example, in a small a network. that a given adapter will accept, so it is nec- office, users can employ wireless keyboards An adapter is necessary to enable com- essary to plan ahead and to check the capabilities of an adapter before buying. To remove wires on a desktop, the Logitech DeNovo (www.logitech.com) offers a stylish solution. The device includes a wireless keyboard, a separate wireless numeric keypad that doubles as a remote control for a media center, a wireless mouse, and a recharging base for the mouse that doubles as the hub and Bluetooth adapter. Microsoft (www.microsoft.com) also offers a variety of Bluetooth keyboard and mouse combinations with an offering known as the wireless opti- cal desktop for Bluetooth. Logitech offers another interesting tool that takes advantage of Bluetooth: a digital pen. The traditional digital pen requires a pressure-sensitive writing surface, is wired to the computer, and does not write with ink. The new Logitech pen, however, is wireless and operates as a normal ink pen. Moreover, the pen can be used on special paper (sold with the pen) that is covered with a grid of tiny dots barely visible to the human eye. A minus- cule camera in the pen tracks the dots as the pen moves, thus allowing users to store up to 40 pages of handwriting and drawings in the pen’s memory for subsequent transmittal to a computer. Software that comes with the pen has a handwriting recognition feature to convert writing into text. As may be expected, the handwriting-to-text feature may not work for everyone. The pen is a bit heftier than an ordinary ball-point, but for those accustomed to using larger pens, little adjustment will be necessary. The special paper costs $10 for a refill, and no doubt the users of this special pen will pay top dollar for ink refills as well. In a short time Bluetooth technology is likely to be so widely used that there will be no need to pay much attention to the fact that a product uses Bluetooth. Given its relative novelty in the consumer market, and the relatively small number of products that are using Bluetooth, the price of Bluetooth products is currently relatively high. Prices should decrease, however, as more purchasers accept this new wireless technology.

88 LOS ANGELES LAWYER / APRIL 2004 Classifieds

certified internal medicine, nephrology, (310) 917-5599, ext. 223. ATTORNEYS WANTED geriatrics. Malpractice plaintiff/defense, peer review, regulatory boards. Free initial SOUTHERN CALIFORNIA. FREE. Executive ASSOCIATE ATTORNEY for Portland law consultation. Telephone (760) 446-8204, fax Suite Offices Guide. Eighty-page booklet lists firm—Midsized AV-rated law firm with (760) 446-8236. over 150 buildings in Los Angeles, Orange, San Portland and Seattle offices seeks two Diego Counties and the Inland Empire that associates: (1) 3 to 7 years of experience with LEGAL SERVICES offer executive suites. Guide includes office emphasis on complex litigation and insurance prices, amenities offered, photos, maps, and coverage; and (2) 10 to 15 years of complex PAPER TO CD CONVERSION: PearlMark scans contacts. Mailed the same day ordered. Call 24 insurance coverage or litigation with trial in, stores up to 20,000 pages on one CD, and hours: (800) 722-5622. experience. Excellent academic record and security shreds ﬁles for one low price per page. writing skills required. Positions offer www.pearlmark.com, or call (800) 884-1255 for PSYCHOTHERAPY & COUNSELING competitive salary, excellent growth potential, details. We also scan and convert to Word or and professional development. Please send WordPerfect formats. End document storage resume to Hiring Partner, Gordon and Polscer, COUNSELOR TO LAWYERS. Feeling depressed problems. Free sample. LLC, 9755 SW Barnes Road, Suite 650, Portland, or unappreciated? Having job or family OR 97225. problems? Meet in confidence with a skilled OFFICE SPACE fellow professional and psychotherapist to EXPERTS/CONSULTANTS discuss job and career concerns, low-level LAW OFFICE SPACE: Three offices and two performance, group pressures, anger, anxiety, secretarial spaces available in spacious Santa procrastination, family stress and/or relationship INTERNAL MEDICINE SPECIALIST, over 20 years’ Monica law suite. $1,100-$2,000. 36-month conﬂicts. Call Richard Gottfried, JD, MBA, MFT clinical experience, MD/JD, American board lease. Available immediately. Call Sonja at (Lic. # MFC32871). Telephone: (310) 207-5177.

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 / APRIL 2004 89 IndextoAdvertisers Advisory Service Group, p. 81 Gursey, Schneider & Company, p. 55 Ostrove, Krantz & Ostrove, p. 55 Tel. 310-937-7700 Tel. 310-552-0960 www.gursey.com Tel. 323-939-3400 www.lawyers.com/ok&olaw Allen Jacoby Roofing Consultant, p. 72 Hargis & Associates, Inc., p. 64 Pacific Construction Consultants, Inc. (PCCI), p. 56 Tel. 818-999-1941 e-mail: [email protected] Tel. 800-554-2744 www.hargis.com Tel. 916-638-4848 www.pcciconsultants.com AMFS, Inc. (Am. Medical Forensic Specialists, Inc.), p. 77 Higgins, Marcus & Lovett, Inc., p. 59 Pacific Construction Management, Inc., p. 69 Tel. 800-275-8903 www.amfs.com Tel. 213-617-7775 www.hmlinc.com Tel. 800-576-7264 www.pcmi-experts.com The Andela Consulting Group, Inc., p. 81 Hirson Wexler Perl Stark, p. 35 Pacific Health & Safety Consulting, Inc., p. 56 Tel. 818-380-3102 Tel. 323-936-0200 www.hirson.com Tel. 949-253-4065 www.phsc-web.com Aon Direct Adm./LACBA Prof. Liability, Inside Front Cvr INSYNC Consulting Group, Inc., p. 20 paperlessUSA, Inc., p. 6 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 310-446-8600 www.insyncusa.com Tel. 818-706-2303 www.paperlessUSA.com A R Tech Forensic Experts, Inc., p. 52 Jack Trimarco & Associates Polygraph, Inc., p. 49 Pro/Consul Technical & Medical Experts, Inc., p. 43 Tel. 818-344-2700 www.lawinfo.com Tel. 310-247-2637 www.behaveanalysis.com Tel. 800-392-1119 www.expertinfo.com AT&T Wireless, Inside Back Cover Jeffrey Kichaven, p. 19 Quo Jure Corporation, p. 4 Tel. 213-253-2400 www.attwireless.com Tel. 310-556-1444 www.jeffkichaven.com Tel. 800-843-0660 www.quojure.com Ballenger, Cleveland & Issa LLC, p. 64 Fred M. Johnson, PhD., p. 77 Jan Raymond, p. 10 Tel. 310-873-1717 Tel. 714-526-6661 e-mail: [email protected] Tel. 888-676-1947 e-mail: [email protected] Boserup Mediation, p. 15 KARS Advanced Materials, Inc., p. 60 Rimkus Consulting Group, Inc., p. 73 Tel. 310-552-1020 www.boserup.com Tel. 714- 892-8987 www.karslab.com Tel. 877-978-2044 www.rimkus.com Law Office of Donald P. Brigham, p. 24 KPA Associates, Inc., p. 69 ROEL Construction Company, p. 63 Tel. 949-206-1661 e-mail: [email protected] Tel. 619-725-0980 www.kpaa.com Tel. 619-297-4156 www.roel.com Bruce Broukhim, MD, p. 72 Krycler, Ervin, Taubman & Walheim, p. 80 Rogers, Sheffield & Campbell, p. 25 Tel. 818-556-6500 Tel. 818-995-1040 www.ketw.com Tel. 805-963-9721 www.high-techlawyer.com CLE International, p. 28 LACBA Family Law Section, p. 19 Rosen & Associates, PC, p. 71 Tel. 303-377-6600 www.cle.com Tel. 213-896-6560 www.lacba.org Tel. 213-362-1000 www.rosen-law.com Cohen Miskei & Mowrey, p. 24 lawnetinfo.com, p. 24 Jonathan S. Rutchik, MD, p. 64 Tel. 818-986-5070 e-mail:[email protected] Tel. 818-727-1723 www.lawnetinfo.com Tel. 415-771-3133 www.neoma.com Commerce Escrow Company, p. 88 Lawyers’ Mutual Insurance Co., p. 7 Rutter Hobbs & Davidoff, Incorporated, p. 25 Tel. 213-484-0855 www.comescrow.com Tel. 800-252-2045 www.lawyersmutual.com Tel. 310-286-1700 www.rutterhobbs.com Construction Forensics, p. 60 Legal Tech, p. 11 Sanli Pastore & Hill, Inc., p. 57 Tel. 800-559-0933 e-mail: [email protected] Tel. 800-537-2128 www.legaltechshow.com Tel. 310-571-3400 www.sphvalue.com CourtCall, LLC, p. 39 Law Offices of Boyd S. Lemon, p. 67 Steven R. Sauer APC, p. 17 Tel. 888-882-6878 e-mail: [email protected] Tel. 310-827-0840 www.legalmalexpert.com Tel. 323-933-6833 e-mail: [email protected] D. Wylie Associates, p. 51 Lexis Publishing, p. 5, 13 Stephen Sears, CPA-Attorney at Law, p. 29 Tel. 805-681-9289 www.drivingfatigue.com www.lexis.com www.searsatty.com Daniel Powers, MD, Inc., p. 51 Lineback, Inc., p. 74 Anita Rae Shapiro, p. 29 Tel. 800-222-6768 www.TheMRIPeople.com Tel. 714-565-1012 e-mail: [email protected] Tel. 714-529-0415 www.adr-shapiro.com Danz Gerber Employment Council, p. 18 Arthur Mazirow, p. 18 Alan Spira, MD, p. 79 Tel. 818-783-7300 Tel. 310-255-6114 e-mail: [email protected] Tel. 310-360-1333 DataChasers.com,p. 10 Medical Legal Consulting Network, LLC, p. 62 Steve Fisher Deposition Summaries, p. 24 Tel. 909-780-7892 www.datachasersinc.com Tel. 714-345-5545 e-mail: [email protected] Tel. 818-563-4496 www.deposummary.com Del Richardson & Associates, p. 28 Laurence D. Merritt, p. 6 TASA, Technical Advisory Service for Attorneys, p. 77 Tel. 310-645-3729 www.drainc.com Tel. 818-710-3823 www.legalknight.com Tel. 800-523-2319 www.tasanet.com Greg David Derin, p. 19 Gil Mileikowsky, MD p. 73 ULTIMO Organization, Inc., p. 68 Tel. 310-552-1062 www.derin.com Tel. 310-858-1300 www.baby4you.net Tel. 714-560-8999 www.geotechnical.com Desmond, Marcello & Amster, p. 57 Clinton E. Miller, JD, p. 71 URS, p. 83 Tel. 310-216-1400 www.dmavalue.com Tel. 408-279-1034 www.quikpage.com/m/millerjd Tel. 213-996-2571 www.urscorp.com E. L. Evans & Associates, p. 67 Miod and Company, LLP, p. 79 V.E.S., Inc., p. 75 Tel. 310-559-4005 Tel. 818-905-5822 www.miod-cpa.com Tel. 800-734-2248 www.vesinc.net Federal Forensic Group, p. 10 CNA/ Mitchell & Mitchell Insurance Agency, p. 8, 9 Vision Sciences Research Corporation, p. 81 Tel. 310-318-1073 www.fedforensics.com Tel. 800-247-1403 www.mitchellandmitchell.com Tel. 925-837-2083 www.apgvsrc.com Field & Test Engineering, Inc., p. 52 Mohajerian Law Corporation, p. 29 Temmy Walker, Inc., p. 83 Tel. 562-743-7230 e-mail: [email protected] Tel. 310-289-9625 www.law-up-date.com Tel. 818-760-3355 Forensic Expert Witness Associates, p. 69 MP Group, p. 17 Law Offices of Alan D. Wallace, p. 80 Tel. 949-640-9903 www.forensic.org Tel. 310-390-4936 www.mpgroup.com Tel. 818-501-0133 www.expertwitnessre.com ForensisGroup Inc., p. 57 Mr. Truck, p. 60 Bruce Wapen, MD, p. 76 Tel. 626-795-5000 www.forensisgroup.com Tel. 800-337-4994 e-mail: [email protected] Tel 650-577-8635 www.drwapen.com Samuel K. Freshman, p. 75 MyCorporation.com, p. 1 Washington Mutual/Ted Burkow, p. 29 Tel. 310-410-2300 e-mail: [email protected] Tel. 888-692-6771 www.mycorporation.com Tel. 310-777-2327 www.wamuloans.com/ted.burkow Marc J. Friedman, M.D., p. 75 National Properties Group, p. 71 West Group, Back Cover Tel. 818-901-6600 e-mail: [email protected] Tel. 310-516-0022 Tel. 800-762-5272 www.westgroup.com FULCRUM Financial Inquiry LLP, p. 2 Noriega Clinics, p. 89 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 53 Tel. 213-787-4100 www.fulcruminquiry.com Tel. 323-728-8268 Tel. 818-981-4226 www.wzwlw.com Gibbs, Giden, Locher & Turner, LLP, p. 17 Office of the Circuit Executive, U.S. Courts, p. 18 Witkin & Eisinger, LLC, p. 28 Tel. 310-552-3400 www.GGLT.com Tel. 415-556-2000 www.ce9.uscourts.gov Tel. 310-670-1500 Arnold L. Gilberg, MD, PhD., A Professional Corp., p. 71 One Legal, Inc., p. 6 Lillian Wyshak, p. 4 Tel. 310-274-2304 Tel. 415-491-0606 www.onelegal.com Tel. 310-273-0223 Steven L. Gleitman, Esq., p. 4 Online Security, p. 67 Zivetz, Schwartz & Saltsman, p. 51 Tel. 310-553-5080 Tel. 310-815-8855 x 228, www.onlinesecurity.com Tel. 310-826-1040 www.zsscpa.com G. Govine Consulting, p. 59 Gary Ordog, MD, p. 62 ZymaX Forensics, p. 59 Tel. 526-564-0502 www.govineconsults.com Tel. 661-799-1689 http://dwp.bigplanet.com/toxic Tel. 805-544-4696 www.zymaxforensics.com

90 LOS ANGELES LAWYER / APRIL 2004 CLE Preview

The Nuts and Bolts of Workout Agreements How to Be an SB 800 Survivor ON WEDNESDAY, APRIL 7, the Commercial Law Committee of the Commercial Law and Bankruptcy Section, as well as the Business and Corporations Law Section, will present a ON TUESDAY, APRIL 27, the program on the basics of workout agreements. Speakers John A. Lapinski, Dan S. Schechter, Construction Law and Scott O. Smith will discuss such topics as how to structure an effective workout Subsection of the Real agreement, how to effectively use outside consultants to assist management, and what Property Law Section will remedies are available if the workout fails. This event will be held at the LACBA/LEXIS offer a program on the Publishing Conference Center, 281 South Figueroa Street, Downtown. Parking at the Figueroa new construction defect Courtyard Garage will be available for $7 with LACBA validation. On-site registration will statutes. Speakers Bryan C. begin at 11:45 A.M. and lunch at noon, with the program continuing from 12:30 to 1:30 P.M. Jackson, Teresa Tate, and The registration code number is 810LD07. Preregistered CLE+Plus members may attend for Timothy M. Truax will free ($15 meal not included). The prices below include the meal. acquaint participants with $55—members of the Commercial Law and Bankruptcy, Business and Corporations the substantial recent Law, and Barristers Sections revisions to California's $65—other LACBA members construction defect laws. $75—all others This event will be held at 1 CLE hour the LACBA/LEXIS Publishing Conference Center, 281 South Figueroa Street, Effective Case Settlement Using Environmental Downtown. Parking at the Techniques Insurance to Close a Deal Figueroa Courtyard Garage ON WEDNESDAY, APRIL 7, the Family Law ON WEDNESDAY, APRIL 14, the Land Use will be available for $7 Section will present a seminar featuring Judge Planning-Environmental Law Subsection of the with LACBA validation. On- Aviva K. Bobb and retired commissioner Jill Real Property Section, together with the site registration will begin

Robbins, who will speak on effective case Environmental Law Section, will present a at 11:45 A.M. and lunch at settlement. There will also be a reception to program on how to use environmental noon, with the program honor mediators who have generously donated insurance to close a deal. This event will be continuing from 12:30 to their time to superior court programs. This held at the LACBA/LEXIS Publishing 1:30 P.M. The registration event will take place at the Music Center, Conference Center, 281 South Figueroa Street, code number is 803LD27. Downtown. On-site registration will begin at Dorothy Chandler Pavilion, 135 North Grand Preregistered CLE+Plus Avenue, ﬁfth ﬂoor, Downtown. The 11:45 A.M. and lunch at noon, with the members may attend for registration code number is 008537. On-site program continuing from 12:30 to 1:30 P.M. free ($15 meal not registration and the reception buffet will begin Preregistered CLE+Plus members may attend included). The prices below at 6:30 P.M., with the program continuing from for free ($15 meal not included). The prices include the meal. 7:30 to 8:30 P.M. Preregistered CLE+Plus below include the meal. $45—Real Property Section members may attend for free ($40 meal not $45—Real Property and Environmental members included). The prices below include the meal. Law Section members $55—LACBA members $40—Family Law Section members and $55—LACBA members $65—all at-the-door LACBA members $65—all at-the-door registrants registrants $45—all at-the-door registrants 1 CLE hour 1 CLE hour 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://forums.lacba.org/calendar.cfm. For a full listing of this month’s Association programs, please consult the April County Bar Update.

LOS ANGELES LAWYER / APRIL 2004 91 closing argument

By Judge Terry J. Hatter Jr.

Speed Has Been Deliberate We celebrate the 50th anniversary of despite our disappointment in its results

s we speedily approach the 50th anniversary of Brown v. Board v. Ferguson, which established the separate but equal doctrine. of Education, it is time for us to again take a deliberate look at We also recognize the extraordinary leadership of the Third Aour society, educated or not, and our Supreme Court, unani- Branch with its then new head, Chief Justice Earl Warren. Can you mous or not. Has Brown been the catalyst for change in society? Has visualize any case dealing with issues of race and public policy that it been the seed for positive educational reforms for all our children? could result in an unanimous opinion from our present nine justices, Was Brown a defining moment for the High Court, and did it signal even for the good of the nation? I rather believe there would be, at a a significant change of course in Supreme Court decision making, par- bare minimum, eight concurring opinions defining “good.” Chief ticularly in matters of civil rights? I believe the answer to all these ques- Justice Warren, supported strongly by veteran Justice Felix Frank- tions is yes—qualified, but yes. furter, understood that if this country was ever going to confront and At the time of the Brown decision on May 17, 1954, I was a college start the difficult task of attempting to resolve longstanding issues of senior. Today, I am contemplating senior status on the federal bench inequality, be true to the ideals of the Constitution, and heal itself, the after almost 25 years of service. In 1954, our country was deeply Court would have to speak with a single voice. divided on matters of race in very visible ways: legal segregation, usu- And what an extraordinarily creative feat that was—to craft a ally referred to as separate but equal, in Southern and border states, unanimous opinion that was so far-reaching. Those magic words— and de facto separate but equal customs and policies in other large “with all deliberate speed”—inspired millions of minorities who hun- sections of our nation. Clearly, segregated education did not exist in gered for equal rights and educational opportunities under the law, the South alone. but, at the same time, they also provided cover for those who opposed My own early schooling was segregated in Chicago, the urban the decision and time to develop alternatives to “race mixing” through heart of the Midwest. I attended Forestville, the largest elementary the closure of public schools, establishment of private white acade- school in the country, with more than 4,000 students, all Black, with mies, and endless appeals of specific integration plans. a few white teachers and a white principal. Using a family friend’s Before he became the first African American solicitor general address, I was able to attend Hyde Park High School, which was over- and Supreme Court justice, Thurgood Marshall was (and still is) whelmingly Jewish. Both schools were the products of the de facto associated with Brown. Yet, he did not represent the plaintiffs in that neighborhood segregation policies of the Chicago Board of Education. case; rather, he was counsel for the South Carolina plaintiffs in a My childhood experiences find parallels in our “Golden State,” with case joined with Brown. As momentous as the Court’s decision was its own history of “separate but equal.” For example, retired California in striking down the separate but equal doctrine, Marshall was put off Supreme Court Justice Cruz Reynoso relates his experience as a stu- by “all deliberate speed.” He was heard dent in a segregated school system in La Habra. And right here in Los to mutter, “Free by ’63.” As we now know Angeles, the attempt to rid the system of segregated schooling 50 years later, Marshall’s sarcasm was not remains a work in progress, following Crawford v. Board of Education. prophetic—merely optimistic! I note how my adopted hometown of Pasadena reacted to Brown. Contemporary critics of Brown point When, almost 16 years after Brown, my colleague, U.S. District Judge to the sociological and psychological evi- Manuel L. Real, ordered an end to segregated school policies in dence of the plaintiffs’ experts that the Spangler v. Pasadena Unified School District, the result mirrored the Court considered as just the kind of resistance to judicial decisions in many parts of the deep South—white sophistry that would not get by a gate- flight from the public schools and the overnight establishment of pri- keeping federal trial judge under the vate schools and academies. Today, many years after the decision by Daubert standards. Supporters sharply Judge Real, the majority of white families with school-age children still disagree and suggest that the Court Judge Terry J. Hatter avoid the now-“integrated” public schools of Pasadena. would have reached the same decision Jr. is a U.S. district If these rather meager gains were the major result of Brown, why even without the sociologists’ use of dolls. court judge in the do we celebrate its 50th anniversary? One well established reason is They believe, as I do, that the Warren Central District of the agreement that Brown was the national incubator for the Civil court was determined to set the nation on California and chief Rights Movement. Brown (and Brown II) placed the U.S. Supreme a new course away from Plessy v. judge emeritus. Court in the leadership position in dealing with race relations, a posi- Ferguson, and, of course, it did just that— tion the Court had not held since its tortured 1896 decision in Plessy “with all deliberate speed.” ■

92 LOS ANGELES LAWYER / APRIL 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.