Articles

Ajaxo v. E*Trade: "May" Does Not = "Must"

Jun 07, 2020
 
This year's Ajaxo, Inc. v. E*Trade, 48 Cal. App. 5th 129, 261 Cal. Rptr. 3d 583 (2020) opinion is the third time the Court of Appeal has reviewed litigation between Ajaxo and E*Trade. These parties have been fighting for a longtime.
 
How long?
 
When Ajaxo initiated litigation, Brad Pitt and Jennifer Anniston were newlyweds, Minnesota Governor (and former wrestler) Jesse Ventura had just persuaded Donald Trump to seek the presidential nomination of the...
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Evidence Code Section 721: The Sword and Shield (Mostly Sword) for Expert Witness Cross-Examination

Apr 09, 2020

"I know lots of people who say you're wrong!" 

"Really? Like who?" 

"Well, you know ... like ... lots of people."

The proverbial "they" as in, "You know what they say ..." Is among the laziest rejoinders in an argument. Instead of identifying problems of fact or logic, the person invents an imaginary consensus to suggest his or her opponent's position is nothing but a fringe outlier.

Certainly such a tactic has no place in the courtroom, right? After all, one of the main...

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Sargon: The Beyoncé of Expert Opinion Common Law

Mar 18, 2020

Beyoncé. Lebron. Magic. With some celebrities and athletes, just their first name or nickname will do.

You never hear people say, "Cher? Cher who? What's her last name?"

The same goes for some appellate opinions. Take Miranda. Any cop movie invariably includes a scene where the cranky veteran chews out a younger officer for violating a suspect's Miranda rights. From Dirty Harry to 21 Jump Street, Miranda is as common in police movies as a car chase.

...

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This Land is Your Land ... Actually, this Land is My Land (Because My Dad Told Me)

Feb 27, 2020

When it comes to hearsay, one method of spotting objectionable hearsay is to consider whether the probability of the evidence being true (or not true) turns on the credibility of someone who cannot be cross-examined. As Justice John Marshall wrote in Queen v. Hepburn, 7 Cranch 290, 296 (1813), "[i]ts intrinsic weakness, its incompetency to satisfy the mind of the existence of fact, and the frauds which might be practiced under its cover, combine to support the rule that...

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Waiving Privileges: Existence, Purpose, or Significant Part?

Feb 24, 2020

When it comes to privileges and evidence, determining when a waiver has occurred can be tricky. It's a little like knowing when an egg is boiled. While some like runny yokes, others want a virtual powdering to soothe any fears of Salmonella. Judges of eggs are just like judges of law: they're human. What may be a waiver to one may not be a waiver to another.  

Fortunately, case law provides some guidelines for attorneys to at least understand how waivers should be...

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Expert Witness Declarations: Admissible Opinion or Jargon Word Salad?

Feb 05, 2020

"I'll see you in court!" It's one of those lines that seems to make its way into any courtroom drama. But like a judge banging a gavel, some things make for good television but never actually happen in real life. 

This is not to say lawyers are immune from having their share of meaningless colloquialisms. Take "battle of the experts." Attorneys toss around this phrase to describe certain cases or trials as basic coin flips. That upcoming trial about an allegedly defective...

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To Examine Or Not To Examine Your Client At Deposition? That is a Question?

Nov 29, 2019

When it comes to party depositions, they are typically one-sided affairs. The adverse party notices the deposition, asks a slew of questions, and that, almost always, is that. Asking questions as the defending attorney feels like an unnecessary risk. Especially if the deposition has gone reasonably well, prolonging the affair by asking your own client questions seems foolhardy. It feels a little like "just stopping by" the roulette table after a reasonably good night of Blackjack. Sure you...

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Lay Witnesses and Opinion Testimony: Admissible?

Sep 30, 2019

When it comes to expert witnesses, there can be a tendency to limit consideration to paid, third-party experts. And while these professional expert witnesses are the most common types of expert witnesses in civil litigation, they are certainly not the only types of witnesses who can provide expert testimony.

A simpler way to think about expert witness testimony is to first understand what makes expert witness testimony unique. It is not that the witness is compensated. It is not...

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The Supplemental Witness Exchange: The Father's Day Of California Litigation

Jul 17, 2019

When it comes to Father's Day, mothers have a distinct advantage. Why? Because Mother's Day is in May and Father's Day is in June. (To be clear, I have repeatedly told my daughters that Mother's Day is not Wife Day--it is their responsibility to make cards, get a gift, fix breakfast, etc., but I'm still needing to ... facilitate the day.) So whatever occurs on Mother's Day implicitly sets the tone for Father's Day. If Mother's Day is celebrated with a heartfelt text and Wendy's take-out, Dad...

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Riffing on Rifkind: Handling The Improper "Instruction Not To Answer" At Depositions

May 27, 2019

There is no referee in pickup basketball. The result? There is invariably more traveling. No one gets called for three seconds in the key. And if the teams cannot self-regulate themselves, "aggressive" defense soon means broken noses and bruised elbows.

Depositions are like the nerd version of pickup basketball. Without a judge regulating the proceedings, quarrels about what questions are or are not objectionable can spiral downward with maturity and poise being among the dispute's...

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D.Z. v. LAUSD: "There is Zero Evidence!" (Because I Moved To Exclude All Of It)

May 19, 2019

"Absence of evidence is not evidence of absence." The late astronomer Carl Sagan popularized this quote when contemplating our existential role in the cosmos. Donald Rumsfeld revived it—along with his less catchy line about "unknown unknowns"—to rationalize the Iraq invasion because of suspected weapons of mass destruction.

What does any of this have to do with last week's D.Z. v. Los Angeles Unified School Dist., No. BC484110, 2019 WL 2098674 (Cal. App., 2nd Dist. May 14, 2019)...

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Personal Business on a Business Device: Is Anything Private?

May 01, 2019

Email. Where office workers are routinely carpet-bombed with everything from complaints about over-cooked popcorn in the office microwave to requests for "an important project before you head out for the long weekend." And in the case of business lawsuits, it is where the smoking guns are often found. Along with flying bullets. And a confession. It was not that long ago that Apple and Google were accused of having a no-hire agreement with each other. Proving the...

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Impeachment Basics: The ABCs of Challenging Witness Credibility

Apr 15, 2019

When questioning witnesses, the principle of impeachment simply means the introduction of evidence that may cast doubt on the credibility of the witness or the validity of the testimony. There are countless ways to impeach a witness. California Evidence Code section 780 identifies the most common methods, but they are expressly non-exhaustive: “[T]he … jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the...

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Policy or Habit Evidence: Statewide Class Action or Single-Plaintiff Arbitration

Mar 10, 2019

When it comes the rules of evidence, there can be a big difference between a "policy" and a "habit" (or "custom," when it comes to a business entity). A decent (albeit nonlegal) illustration of the difference is the late Howie Sugden.* Howie had a policy of fighting anyone during pickup hockey games who, in his opinion, "played cheap." So while there was a decent chance his gloves might come off whenever he took the ice, it wasn't necessarily guaranteed. But when it came...

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People v. Mooring: Remembering Step-Three From Sanchez's Step One

Mar 04, 2019

With it being almost three years since People v. Sanchez, 63 Cal. 4th 665 (2016), most lawyers are at least familiar with its holding. Indeed, prior articles on this blog have summarized the case and explained how to question expert witnesses post-Sanchez. But with familiarity, certain details can be overlooked. Take Michael Jordan. The most casual fan has an instant memory of his storybook career with the Bulls, the multiple championships, even his...

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Impeachment Evidence: Attacking Credibility And Proving Its Truth?  

Feb 24, 2019

When it comes to impeachment—attacking the credibility of a witness—lawyers sometimes fail to consider whether the evidence is substantive or pure impeachment. It can lead to an exchange like the following:

Judge: Are you offering this evidence as pure impeachment or to establish its truth?

Lawyer: Yes.

Knowing whether impeachment evidence may also be substantive is important. Substantive evidence “is offered to establish the truth of a matter to be determined by...

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Is it Too Late to Say I'm Sorry? Usher, Justin Bieber, and Judicial Notice

Nov 20, 2018

We recently filed a motion to dismiss a spurious sexual harassment complaint. In opposition, the plaintiff included a request that the court take judicial notice of various articles chronicling the #metoo movement. In response to our argument, which focused on the facts and law, the plaintiff asked the court to "judicially notice" that "[m]illennials were sheltered from abusive treatment as kids ... [but find themselves] put in place by Boomer and [Generation] Xer managers ...." Why leave the...

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Meeks v. AutoZone: Let Me Just Tell You About That Smoking Gun (Which I Deleted)

Jun 27, 2018

Referring to the "best evidence rule" in California litigation is a little like calling The Cosby Show the most family-friendly option on television. While there was a time that such assertions were valid, saying so today just sounds uninformed and out of touch. The best evidence rule ended up having so many exceptions that it was abrogated and replaced by the "secondary evidence rule," codified in California Evidence Code section 1521, et seq. The vast majority of...

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Vague and Ambiguous, Compound and Confusing, Calls for Speculation ... And a Partridge in a Pear Tree!

Jun 01, 2018

We have all been there. You're taking a deposition and your opposing counsel channels a $10,000 Pyramid contestant coaxing his teammate to say, "Every conceivable objection under the sun?" These attorneys act like their year-end bonus is based on the number of objections lodged after each question. While it can be annoying, deposition objections are mostly white noise for the examining lawyer. However, there is value in discerning which objections matter, and which objections...

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The Expert Impeachment Witness: Fight the Facts, Not the Opinion

Apr 29, 2018

"Like a house built on sand, the expert's opinion is no better than the facts upon which it is based." This famous line from Kennemur v. State of California, 133 Cal. App. 3d 907, 924 (1982), can be found in virtually every California motion to exclude an opponent's expert witness. And it is typically cited for one of two arguments:

There is the junk science argument. This argument seeks to show the expert's reasoning or methodology is unreliable. It is used against the expert...

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The Admissibility of Character Evidence: Demystifying the Rules and their Application

Apr 01, 2018

Character evidence is similar to hearsay in that there is a general rule of inadmissibility followed by so many exceptions that they often gobble up the general rule. But what can make character evidence trickier is that even when it is admissible, there are specific rules about the type of character evidence that is allowed. This article provides a road map so that trial lawyers can know the what, when, and how of character evidence.  

What is...

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When It Gets Awkward: "Your Honor, I Respectfully Object ... To Your Question."

Mar 15, 2018

"Nobody ever went to a ballgame to see the umpire," Chief Justice John Roberts declared in the opening remarks to his own confirmation hearings. He is right. It would be a head-scratching moment to go to Dodger Stadium and at the end of a complete game shutout, see Clayton Kershaw high-five his teammates ... and the home plate umpire?

The same goes with jury trials. Advocacy comes from the lawyers. While judges can examine witnesses, they are not to put their thumb on...

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Foundation and the Lay Witness: A Road Map to Admissibility

Mar 01, 2018

"Objection. Lacks foundation." It is among the more mundane objections heard during witness examinations. With lay witnesses, there can be a temptation for practitioners to give it little attention. Especially during depositions, where objections are supposed to be to the form of a question, there can be a tendency to ignore foundation issues altogether. But neglecting foundation with lay witnesses is dangerous. Testimony a jury should hear can be excluded...

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Documents Reviewed Before Testimony: Protected Work-Product Or Discoverable Refreshed-Recollection?

Feb 15, 2018

"What documents did you review to prepare for your deposition?" It is among the most commonly asked questions at the outset of depositions. And yet, whether the answer is permissible or privileged turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory.

On the one hand, a lawyer's selection of documents for a client to review reflects that lawyer's opinion about what is or is not...

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Uber's Not So Good (and Nonprivileged) Investigation Report

Feb 01, 2018

As Uber and Waymo start trial over Uber's alleged theft of Waymo's self-driving technology, Uber will have to deal with an exhibit it never wanted Waymo to see—a third party report investigating various wrongdoing by the very employees Waymo accuses of various wrongdoing. Uber contended the report could be withheld from discovery. The Court decided otherwise and ordered its production. 

Waymo—once a Google project and now an Alphabet subsidiary—sued...

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#MeToo and the Evidentiary Rules of Third Party Witness Accusations

Jan 16, 2018

2017 revealed that countless people (men, mostly) in powerful positions used their authority to sexually harass or assault subordinates (women, mostly). Time Magazine's "person of the year" were the "Silence Breakers." Oprah Winfrey gave an impassioned speech at 2018's Golden Globe awards on the topic, which led to talk of a potential presidential run. And while #MeToo became a movement thanks to an Alyssa Milano tweet, the "me too" legal doctrine has been litigated...

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The Michael Jackson Trial: The Art Of Proving A Defense

Jan 03, 2018

Great trial lawyers have not simply mastered the rules of evidence. Great trial lawyers understand human nature. While expertise in evidence is necessary to execute the mechanics of a trial, understanding people is necessary to persuade. Failing to appreciate the human element of trials results in bad advice and bad advocacy. 

Take, for example, the burden of proof. In a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Plaintiffs in civil...

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Martha Stewart, the Merrill Lynch Assistant, and the Allowable Inferences of Implausible Testimony

Dec 15, 2017

When viewers tune into VH1's Martha & Snoop's Potluck Dinner Party these days, most may not know (or have forgotten) that Martha Stewart served five months in prison for lying to federal investigators. The case involved Stewart's sale of 3,928 ImClone shares on December 27, 2001. That day Stewart's broker, Peter Bacanovic of Merrill Lynch, was on vacation when he received a call from his assistant, Douglas Faneuil. Faneuil told him that Sam Waksal, the chairman of...

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O.J. Simpson and the Hearsay Rule

Nov 30, 2017

Many of us have vivid memories of the O.J. Simpson criminal trial. Judge Ito became a household name. Millions watched Simpson struggle to try on the famous gloves, and many of us remember where we were the moment the verdict was read. What is slightly less well known is the civil trial against Simpson—following his acquittal—for the wrongful deaths of Nicole Brown Simpson ("Nicole") and Ronald Goldman. The jury found Simpson liable, and...

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Applying Evidence Code Section 1271 to Certain Documents

Nov 17, 2017

A prior article examined the business records exception to the hearsay rule, and it specifically looked at the language and case treatment of Evidence Code section 1271. This post explores the application of Section 1271 to business records that are common in litigation: third party records, medical records, and investigation reports.    

Third Party Records (e.g., Third Party Invoices): The elements of Section 1271 suggest that third party...

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