Unauthorized Entry Semiannual Guide to Expert Witnesses PLUS
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Unauthorized Entry Semiannual Guide to Expert Witnesses PLUS
Semiannual Guide to Expert Witnesses November 2004 / $4 E A R N MCLE CR E D I T PITFALLS IN SECTION 998 OFFERS page 29 Unauthorized Entry Los Angeles lawyers Deborah A. Kelly and Fernando Gaytan discuss the dangers of UPL page 22 PLUS Private Annuities page 12 Willful Copyright Infringement page 18 Credit Bureau Liability page 36 New! Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California Richard B. Kendall, the Honorable Richard Seeborg, Mary Jo Shartsis, and the Honorable Fern M. Smith Shining a new light on Practice Guides in California. The Matthew Bender® Practice Guide series is growing... FEDERAL PRETRIAL CIVIL PROCEDURE IN CALIFORNIA CALIFORNIA PRETRIAL CIVIL PROCEDURE Paul R. Kiesel, the Honorable Peter D. Lichtman, Edith R. Matthai, and Richard L. Seabolt CALIFORNIA CIVIL DISCOVERY Paul R. Kiesel, the Honorable Peter D. Lichtman, Edith R. Matthai, Richard L. Seabolt, and the Honorable Evelio M. Grillo CALIFORNIA LANDLORDTENANT LITIGATION Andrew Westley, Michael J. Saltz ...with more on the way! Whether you prefer to conduct your research in print, online—or both—you’ll find the thorough and complete analyses you need with the Matthew Bender Practice Guide series. Authored by leading California litigators and judges, Matthew Bender Practice Guides are updated twice a year to keep you current. Each title provides extensive checklists and forms, as well as cross-references to other valuable content such as California Forms of Pleading and Practice, Moore’s Federal Practice®, and the California Official Reports. In addition, you’ll find easy-to-recognize symbols that highlight traps, warnings, strategic points, and timing. Watch for new titles that cover additional practice areas as the series expands. For research results that stand alone, experience the power of a practice guide in both online and print with the Matthew Bender Practice Guide series. For more information about the Matthew Bender Practice Guides for California, call 877.810.5324. A MEMBER BENEFIT OF LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. Moore’s Federal Practice is a registered trademark of Matthew Bender & Company, Inc. © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL7455 RAISE THE BAR. DISCOUNTS FOR FRIENDS OF THE COURT. Nextel has tools to help you get things done faster. In court or on the road. And now, members of the Los Angeles County Bar Association get discounts on all Nextel® phones, rate plans and accessories. BlackBerry 7510 TM International Law Only Nextel® walkie-talkies are international. 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For special discounts, call 866-805-9890 (reference MLSAB) or visit nextel.com/lacba. i830 Nextel is a proud sponsor of the Los Angeles County Bar Association. National Free Incoming Plan: Free Incoming calls are calls received while in the U.S. on Nextel’s Nationwide Network. Free Nationwide Long Distance includes domestic calls only. Unlimited Direct Connect minutes are included in your local calling area only and do not include Group Connect calls, which are $0.15/min. Nationwide Direct Connect calls use the Direct Connect minutes in your plan and incur an additional access charge of either: (i) $0.10/min. multiplied by the number of participants on the call; or, (ii) a monthly flat fee if you sign up for Unlimited Nationwide Direct Connect access. Nationwide Direct Connect calls are charged to the call initiator. Group Connect charges are calculated by multiplying the minutes of use, number of participants and the applicable rate. Group Connect can only work with members of the same network while in their home market. Nationwide service is not available for Group Connect calls. Cellular overage is $0.40/min. Cellular calls round to the next full minute. Unused minutes do not accumulate to the next billing cycle. Nights are 9:00pm to 7:00am. Weekends begin Fri. at 9:00pm and end Mon. at 7:00am. Up to $0.15 per sent or received text message depending on message type. Wireless number portability may not be available in all areas or for all numbers. Because number portability requires the efforts of multiple companies, the amount of time it takes to transfer your number(s) will vary. Nextel’s Nationwide Network serves 296 of the top 300 markets. ©2004 Nextel Communications, Inc. NEXTEL, NEXTEL. DONE., DIRECT CONNECT, GROUP CONNECT, NATIONWIDE DIRECT CONNECT NextMail and the Driver Safety logo are service marks, trademarks, and/or registered trademarks owned by Nextel Communications, Inc. MOTOROLA and the Stylized M Logo are registered in the U.S. Patent & Trademark Office. The BlackBerry and RIM families of related marks, images and symbols are the exclusive properties of and trademarks or registered trademarks of Research In Motion Limited — used by permission. All other product or service names are property of their respective owners. All rights reserved. November 2004 Vol. 27, No. 8 FEATURES 22 Unauthorized Entry BY FERNANDO GAYTAN AND DEBORAH A. KELLY Practitioners need to be wary of their relationships with individuals who are not authorized to practice law in California 29 Bad Compromises BY JUDITH ILENE BLOOM Ambiguity over the right to correct drafting errors and what constitutes a reasonable offer has undermined the effectiveness of Section 998 Plus: Earn MCLE Credit. MCLE Test No. 131 appears on page 31. 36 Faith and Credit BY ROBERT F. BRENNAN A careful reading of the Federal Credit Reporting Act makes clear that it does not preempt California’s credit reporting law LosAngelesLawyer 44 Special Section Semiannual Guide to Expert Witnesses The magazine of The Los Angeles County Bar Association DEPARTMENTS 10 Barristers Tips Compelling arbitrations and confirming an arbitration award 80 Computer Counselor Considering the utility of digital pens BY GORDON K. ENG BY WENDY L. WILCOX AND THOMAS H. SCHELLY 12 Tax Tips The use of private annuities in estate and tax planning BY ROBERT L. BASTIAN JR. BY F. BENTLEY MOONEY JR. 77 Classifieds 18 Practice Tips Proving willfulness in copyright infringement actions 82 Index to Advertisers BY FREDERICK F. MUMM Cover photograph by Tom Keller 84 Closing Argument Judging at the Games 78 LACB Foundation 2003-2004 Fund Drive Results 83 CLE Preview DAVID OSTROVE • • • • • • • • ■ AT T O R N E Y – C PA Expert Witness — 43 years Lawyer/Accountant Malpractice Forensic Accounting Tax Matters Business Valuation Value of Services Computation of Damages Mediator, Arbitrator 323/939-3400 [email protected] A PUBLIC SPEAKING WORKSHOP FOR LAWYERS Mastering the Art of Public Speaking sm Because your abilities as a lawyer are measured by your skills as a speaker! 3-Week Course – 12 Hours of MCLE To Enroll or Get More Information Tuesday & Thursday Evenings Contact the Trial Advocacy Group 6 to 8 p.m. in Downtown Los Angeles (213) 994-7042 [email protected] February 1, 3, 8, 10, 15 & 17, 2005 The Trial Advocacy Group is a State Bar of California approved MCLE provider and certifies that this activity has been approved for MCLE credit by the State Bar of California LosAngelesLawyer VISIT US ON THE INTERNET AT http://www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair GARY RASKIN Articles Coordinator R. J. COMER JERROLD ABELES ELAINE R. ABBOTT DANIEL L. ALEXANDER HONEY KESSLER AMADO ETHEL W. BENNETT CHAD C. COOMBS KEITH E. COOPER ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG DANIEL A. FIORE JOSEPH S. FOGEL STUART R. FRAENKEL MICHAEL A. GEIBELSON TED HANDEL DEAN HANSELL JEFFREY A. HARTWICK STEVEN HECHT KATHERINE M. HIKIDA ROXANNE HUDDLESTON LAWRENCE J. IMEL JOEL T. KORNFELD JOHN P. LECRONE HYACINTH E. LEUS PAUL MARKS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ GERALD F. PHILLIPS THADDEUS M. POPE JACQUELINE M. REAL-SALAS SUE CAROL ROKAW KURT L. SCHMALZ DAVID SCHNIDER GRETCHEN D. STOCKDALE KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER PATRIC VERRONE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO Account Executive MARK NOCKELS Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P.O. 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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 With Lawyers’ Mutual. Investigate Lawyers’ Mutual. Call us directly at (800) 252-2045. Find us at www.lawyersmutual.com Email us at [email protected] LAWYERS’ MUTUAL INSURANCE COMPANY 3110 West Empire Avenue, Burbank, CA 91504 Legislative Intent. You probably seldom need it. From the Chair BY GARY S. 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JAN RAYMOND LEGISLATIVE HISTORY & INTENT Toll Free (888) 676-1947 Fax (530) 750-0190 ■ E-mail: [email protected]. www.naj.net State Bar #88703 Construction Litigation or Mediation More than 40 years of construction expertise provides you and your client with formidable forensic expert witnesses, compelling litigation support...or skillful mediation of complex and highly technical issues. Forensic Expert Witnesses Mediation Michael S. Poles GC, CM, RCI, DABFET, ACFE CONSTRUCTION EXPERT / MEDIATOR PHONE: 323-874-8973 FAX: 323-874-8948 WEB: www.mpgroup.com EMAIL: [email protected] 1202 Greenacre Avenue West Hollywood, California 90046-5708 Mediation Practice Areas Construction - Premises Liability - Real Estate Health Care - Medical Malpractice - Elder Care 8 Los Angeles Lawyer November 2004 alifornia Code of Civil Procedure Section 998 and Rule 68 of the Federal Rules of Civil Procedure are well-intentioned statutes. Offers to compromise under Section 998 and offers of judgment under Rule 68 were enacted to promote settlements. Unfortunately, neither Section 998 nor Rule 68 has satisfied its objective. In this month’s issue, Judith Ilene Bloom examines many of the pitfalls that face practitioners when serving Section 998 offers. As Bloom explains, the consequences of a procedurally defective Section 998 offer may be severe and, as a result, many lawyers do not believe that the risk is worth the potential advantages of a Section 998 offer. The conclusions reached by Bloom apply to Rule 68 offers as well (although Rule 68 is limited to offers by defendants). Section 998 and Rule 68 also do not achieve the goal of promoting settlements because the disincentives for rejecting an offer under Section 998 or Rule 68 and then receiving a less favorable result during trial are insufficient—and they frequently are not imposed by courts. Lawyers and litigants simply do not perceive that potential cost shifting is a sufficient motivator to encourage statutory offers in most cases. Usually, the most expensive aspect of civil litigation is attorney’s fees. It is difficult to imagine litigating a moderately complex case through trial for less than $200,000 in attorney’s fees; indeed, most cases with any degree of complexity are significantly more expensive. If Congress and the California legislature want to ensure that the statutes they enacted promoting the settlement of litigation will actually achieve their goal, the statutes should be amended. Section 998 and Rule 68 should include a penalty that will enable parties to shift their attorney’s fees. (Rule 68 also should be expanded to include offers by plaintiffs.) In addition to the existing disincentives for rejecting an offer that was more favorable than the trial result, a party would be obligated to pay the offeree’s reasonable attorney’s fees accruing from the date the offer was made. This modification to the statutes would turn the American Rule—each party bears its own attorney’s fees—on its head. In some circumstances, however, the shifting of attorney’s fees already applies to offers under Section 998 and Rule 68, such as when attorney’s fees are deemed an item of costs. But in most cases attorney’s fees fall outside the scope of the cost-shifting provisions contained in Section 998 and Rule 68. The inclusion of a provision for shifting attorney’s fees in Section 998 and Rule 68 offers would raise the stakes for rejecting those offers. It would also increase the number of offers made and should increase their reasonableness, because an offer that is in the range of the value of the case would result in significant benefits. Amending Section 998 and Rule 68 to include a penalty that shifts attorney’s fees is not without its drawbacks. Most notably, in cases involving contracts in which there is no provision for attorney’s fees, an amendment would, in essence, supersede the intent of the parties. In addition, in cases in which one party has limited assets, the attorney’s fees penalty effectively would be one-sided (which often is a reason for excluding attorney’s fees provisions from contracts). The attractiveness of shifting attorney’s fees is that the penalty genuinely rewards the party that reasonably evaluated its case and offered to compromise on terms that were consistent with the value of the case. It also helps neutralize the power that one party with superior financial resources may have to flood the other party with a sea of paper, since the fees incurred in response could be recovered. The real question for legislators and everyone in the legal profession is: How badly do we want to promote settlements? ■ C Gary S. Raskin is a principal of Garfield Tepper & Raskin, where his primary area of practice is entertainment litigation. He is the chair of the 2004-05 Los Angeles Lawyer Editorial Board. Barristers Tips BY WENDY L. WILCOX AND THOMAS H. SCHELLY Compelling Arbitrations and Confirming an Arbitration Award MOST COMMERCIAL CONTRACTS executed today contain an arbi- the opposing party may file the motion to compel arbitration and a tration clause. Parties typically opt to include an arbitration clause motion to stay the pending action, and need not file the petition. to avoid the expense of litigation. Arbitration is the less expensive, speedier route for parties to resolve their disputes. Ironically, how- Back to Arbitration ever, keeping a dispute “out” of a courtroom often involves going to Once the parties are on the track to arbitration, they must choose an court to compel and manage the arbitration and confirm the arbitration arbitrator. Despite the vast number of competent arbitrators that are award. A brief step-by-step guide can help new practitioners learn to available, at times parties cannot even agree upon an arbitrator. If the utilize a court solely to effectuate an arbitration rather than defeat parties are unable to agree, a party should file a motion with the court its purpose. for an order appointing a neutral arbitrator. If the contract provides Code of Civil Procedure Sections 1280 et seq. set forth the statu- for a specific method of appointing an arbitrator, this must be tory framework for the enforcement of arbitration clauses. If the parties agree to arbitrate, there is no need for the involvement of The petition includes a prayer for judgment requesting an order any court, because the parties are, in effect, performing duties that are pursuant to a contract. Despite a proper arbitration clause in a requiring that, pursuant to the contract, the parties submit any valid contract, however, a party may attempt to avoid its obligation to arbitrate. This party may either ignore an arbitration demand or file claims or disputes to arbitration. a lawsuit. If a party ignores its opposing party’s arbitration demand, the aggrieved party should file a petition requesting that the court order the parties to arbitrate any included in the motion. If the contract does not describe a method, dispute that is covered by the contract. The petition is, in essence, a the parties must provide the court with a list, made jointly, of five suit in equity to compel the specific performance of a contractual pro- potential arbitrators. vision. Once a party has refused to arbitrate a dispute that is covered Once the dispute has been arbitrated and the arbitrator has renby the contract, the party seeking to compel arbitration faces the four- dered an award, any party may petition the court to confirm, correct, year contract statute of limitations.1 or vacate the award. Specifically, the prevailing party should petition the court to confirm the arbitration award and enter a judgment. Contents of the Petition However, the petitioner must wait 10 days after the date the final The petition sets forth specific allegations (including the existence of award is served on the parties before filing the petition. The petitioner the arbitration clause and contract) and includes a prayer for judg- has up to four years from the date of service of the final award to file ment requesting an order requiring that, pursuant to the contract, the a petition. If the petitioner had previously petitioned the court to comparties submit any claims or disputes to arbitration. If the contract pel arbitration, the petition to confirm the arbitration award must be provides for the manner of service of the petition, the petition should filed in the same court. Otherwise, the petition will be filed as a new comply with the contract. Otherwise, the petition must be served in matter and will be assigned to a courtroom. If the award is confirmed by the court, the prevailing party obtains the same manner as a complaint. In order to ensure a party’s compliance with arbitration, the petitioner should request that the court the same rights of enforcement as it would under any civil judgment, retain jurisdiction over the matter until the court confirms the final including the right to attach property and enforce liens. Otherwise, award. This request, if granted, will enable the petitioner to file a the arbitration award has the same force and effect as the contract ■ motion to confirm the arbitration award with the same court, should between the parties. the petitioner prevail at arbitration. Once the petition is filed with the court and served on the parties, 1 Spear v. California State Auto. Assoc., 2 Cal. 4th 1035, 1041-42 (1992) (uninthe opposing party has 10 days to oppose the petition (30 days if the sured motorist claim); Meyer v. Carnow, 185 Cal. App. 3d 169, 173-74 (1986) (applyparty is outside California). By statute, the hearing must be set at least ing the four-year statute of limitations for contracts and not the three-year medical malpractice limitation). 10 days from the date of service of the petition. The petitioner must also file a motion to compel arbitration, including a memorandum of points and authorities and supporting declarations. This motion, Wendy L. Wilcox is a partner and Thomas H. Schelly is an associate with Jampol, in essence, reiterates the petition. Zimet & Wilcox LLP. Their practice includes professional and products liabilIf, instead of ignoring a demand for arbitration, one party files suit, ity, insurance coverage, and construction defect litigation. 10 Los Angeles Lawyer November 2004 Switch to Verizon Wireless. Upgrade to the color screen BlackBerry 7750™ today. The BlackBerry 7750™ handheld gives you wireless access to e-mail, calendar, contacts and key legal applications – in color – just about anywhere your practice takes you. • Make and receive wireless phone calls • Increase responsiveness with “always-on” technology • Stay sharp with on-the-spot access to legal reference documents • Raise profitability with case management, time entry and billing tools • Switch with ease – the BlackBerry 7750™ works with existing servers Contact our dedicated business team today to learn how Verizon Wireless solutions can take your practice to the next level. Valuable corporate discounts are available. BlackBerry 7750 with color display ™ 1.866.822.9558 verizonwireless.com Or contact your dedicated Verizon Wireless Business Sales Representative. Important Consumer Information: Subject to Customer Agreement, service plans, terms and conditions of BlackBerry® product brochure and credit approval. Coverage & service not available in all areas. Must be within National Enhanced Service Rate & Coverage Area to receive e-mail. Individuals with Desktop Redirector must have desktop PC on and in a condition to receive e-mail. Voice calls cannot be received when an e-mail or other data transmission is occuring. The BlackBerry and RIM families of related marks, images and symbols are the exclusive properties of and trademarks or registered trademarks of Research In Motion Limited—used by permission. ©2004 Verizon Wireless. Tax Tips BY F. BENTLEY MOONEY JR. The Use of Private Annuities in Estate and Tax Planning THE PRIVATE ANNUITY HAS SURFACED PERIODICALLY over the past acquires legal title to the transferred property and may sell or oth75 years as a financial planning tool. Its usefulness fluctuates in con- erwise dispose of it as desired. The annuitant could retain a security cert with income tax and interest rates. Congress imposes the former interest in the transferred property, but doing so leads to recognition on the payor, and the Internal Revenue Code of 1986 is used to cal- of capital gain on the exchange.5 This is not an issue, of course, when culate the annuity benefit set by the latter. Presently, tax and interest the exchange property is cash or a high-basis capital asset. rates are relatively low,1 leading to a healthy reconsideration of this The periodic installments must be in the nature of an annuity— well-established tax and estate planning tool. The principal benefits the systematic liquidation of principal and interest over a specified period of time. For the desired estate tax results, the annuity should of a private annuity include: 1) Removing assets from the annuitant’s gross estate for federal continue for the annuitant’s lifetime, no matter how long, but not one estate tax purposes without the payment of a gift tax while at the same day more. This, of course, has an economic impact on the annuitant time retaining a steady stream of income. 2) Spreading the taxation of capital gains over the life expectancy of the annuitant when exBecause a private annuity involves a bona fide purchase, it reduces changing appreciated property for the annuity. 3) Delivering the appreciated property to the payor with a new basis (its value on the date the annuitant’s estate without characterizing the transaction as a gift. of the exchange) that permits its immediate sale without the payor incurring capital gain taxes. If used artfully, private annuities may thus be the most powerful weapon available today for postponing income and payor quite apart from tax considerations. The annuity installtaxes, avoiding wealth management and investment worries, and ments are ordinarily level for life, but may be inflation-adjusted so preserving a source of income. long as the present value at the date of exchange is the same.6 A private annuity is an agreement between two parties, neither of A private annuity should not be confused with a life estate. The whom (or which) is in the business of issuing annuities. Under the former provides a predetermined income lasting for the lifetime of the agreement, one party (the annuitant) transfers property to the other annuitant, whereas a life estate does not guarantee income and pays (the payor) in exchange for the payor’s promise (usually unsecured) only as much income as the supporting principal earns. With a life to make periodic payments in specific amounts to the annuitant, estate, the transferor transfers the property but retains an interest in typically for the annuitant’s lifetime. For example, a father gives his it. This is not the case with a properly arranged private annuity. The son the family farm in exchange for the son’s promise to pay the father Internal Revenue Service has argued that the purchase of a private $l,000 per month for life. The private annuity differs from grantor- annuity constitutes a transfer with a retained interest that causes the retained interest trusts of one stripe or another in at least one respect: property to be brought back into the gross estate of the annuitant under The tax objectives are substantially satisfied whether or not the IRC Section 2036(a),7 as if it were a life estate. The courts, however, annuitant lives out his or her life expectancy. have firmly rejected that contention, based on the character of the priThe defining characteristics of the private annuity include an vate annuity transaction as a purchase and sale at fair market value.8 agreement that establishes the annuitant as a general creditor of the However, this characterization is not automatic. Whether the payor.2 The parties are usually individuals who are related to each annuitant is treated as having retained an interest in the property other, although other entities are permitted. Private annuities can be exchanged for the annuity is based on the substance and effect of the arranged between a corporation and an individual, a trust and an indi- transaction, not on the subtleties of draftsmanship.9 Several factors vidual, or between an estate and a corporation (with the estate are to be taken into account, no one of which controls the result. The exchanging property or stock for payments by the corporation mea- payor must be personally liable for the annuity payments, the annusured by the life of an estate beneficiary). Annuities are also used ity payments should not be an encumbrance on the property between a corporation and a retiring shareholder under a stock exchanged, and the amount of the annuity installments should have redemption arrangement, with annuity installments serving in lieu of no relationship to the income from the property exchanged. Other the more usual lump-sum payment. factors considered include: The payor must not be a person who is engaged in the business • The transaction must transfer all dominion and control over the of issuing annuity contracts, even occasionally. If this condition is not property from the annuitant to the payor and may not include any met, the difference between the present value of the annuity on the date of exchange (set by treasury regulations)3 and the annuitant’s basis F. Bentley Mooney Jr. is a sole practitioner in North Hollywood. His practice in the property is immediately recognized as a capital gain.4 is limited to domestic and international business, estate planning, trusts, proAs soon as the private annuity agreement is executed, the payor bate, and related taxation matters. 12 Los Angeles Lawyer November 2004 “I missed the deadline? Aaarrggh!” Don’t get caught with your pants down—DOD your dates first Now, you can drastically reduce malpractice exposure while saving countless hours of time. Introducing Deadlines On Demand (“DOD”), the first nationwide legal deadline calculation service. Think about it—no more worries of calendar vs. court days, local vs. federal holidays, or counting backwards and forwards—DOD does it all. Plus you can bill-back your clients for the minimal DOD research charges. DOD is fast, accurate and inexpensive. It’s powered ® by CompuLaw, the leader in court rules-based calendar technology. 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CompuLaw ® is a registered trademark of CompuLaw LLC. security for the promise to pay—including reversion of the property on default, escrow accounts, or other devices. • The documentation must be consistent with the notion that an annuity was intended. • The payor must be free and able to sell, assign, transfer, and convey the property exchanged for the promised payments. • The payments must be based on the Treasury Regulations under IRC Section 7520. • The annuitant should not retain control over the property, its investment, or the investment of its sale proceeds. Benefits of Private Annuities The private annuity may be used as a “last chance retirement fund.” For the annuitant who never prepared for retirement, a private annuity may provide economic security in a variety of ways. The annuity may be used to create a market for an otherwise unmarketable business or assist in the sale of undeveloped land owned by the annuitant. Avoiding gift and estate taxes is a popular use for a private annuity. Taxable gifts will use up part of the donor’s lifetime (unified) applicable exclusion amount10 and increase the tax payable on death if the date-of-death value of the estate exceeds the remaining exclusion. Because a private annuity involves a bona fide purchase, it reduces the annuitant’s estate without characterizing the transaction as a gift and, thus, without using any of the annuitant’s lifetime exclusion. Therefore, the annuitant may remove unlimited amounts from the estate without gift tax. Shifting appreciation to the next generation is another attraction. When a valuable business shows promise of continued growth, the owner approaching retirement may wish to exchange it with his or her children for a life annuity. This removes it from the annuitant’s gross estate and replaces it with an annuity income of equal value. It simultaneously adjusts the business’s basis to what amounts to fair market value in the hands of the children as payors. This, in turn, shifts any future appreciation in the business to the next generation. Congress attempted in 1990 to eliminate this type of appreciation-shifting technique by enacting IRC Chapter 14 and repealing IRC Section 2036(c). The techniques addressed by the new Chapter 14, however, are gift arrangements requiring retention of an interest in the gift property.11 The private annuity is a purchase. So, if made at fair market value, the undesirable effects of Chapter 14 are avoided. Trading capital for income offers another use for private annuities. The prospective annuitant may own property producing little or no income (such as unimproved real property), which as often as not has appreciated substantially. Rather than retain the prop14 Los Angeles Lawyer November 2004 erty and deliver it to the children at the stepped-up basis acquired at death,12 the annuitant may exchange it for a private annuity from the children. The children take ownership with the current fair market value as its basis (so they can sell it without capital gain taxes and redeploy the proceeds into incomeproducing investments). The annuitant thereby converts the potential estate tax burden to a life income.13 Because of a private annuity’s dramatic effect in eliminating gift and estate taxes on property exchanged for the annuity, the IRS is clearly on the lookout for “deathbed” arrangements. Revenue Ruling 80-8014 established that the mortality tables are to be disregarded if death is imminent, thereby depriving the annuitant of the tax benefits of an annuity conforming to all legal requirements. In challenging transactions involving seriously ill annuitants, the IRS contended in one case that the annuity payments were never intended. The U.S. Tax Court, however, was more generous. In Estate of Fabric,15 the annuitant was scheduled for open heart surgery at the time the annuity was established. She survived the surgery by 17 months. In affirming the legitimacy of the transaction, the court stated: At the time of decedent’s execution of the annuity agreement, it was not established that her maximum life expectancy was one year or less. In addition, while the decedent underwent open heart surgery five days later, she survived the operation by one year and five months. Furthermore, the uncontroverted testimony of decedent’s physician was that as of late 1975, decedent should live several more years, possibly even five more years…. The evidence demonstrates that the decedent’s death was not clearly imminent or predictable at the time she entered into the annuity agreement. Only where death is imminent or predictable will departure from the tables be justified.16 Similarly, in Estate of McDowell,17 the transaction was respected because, although the annuitant’s death was imminent, his life could be prolonged by treatment. The regulations now provide more of a bright-line test: If the probability of death within a year is at least 50 percent, the annuitant is considered terminally ill for these purposes. However, if the annuitant survives for 18 months after purchasing the annuity, he or she is rebuttably presumed not to be terminally ill.18 Tax Consequences The income tax treatment to the annuitant under a private annuity transaction varies, depending on the facts and circumstances. The annuitant’s investment in the annuity for purposes of computing the income tax exclusion ratio is the annuitant’s basis in the exchange property. If the exchange property is classified for income tax purposes as a capital asset (e.g., a commercial building), the annuitant realizes a capital gain on the exchange in an amount equal to the difference between its basis and the present value of the annuity received in exchange. But, if the promise to pay is unsecured, the exchange is classified as an open transaction, with capital gain recognized ratably over the life expectancy of the annuitant.19 Therefore, each annuity installment is allocated partly to basis (recovered tax free), capital gain (taxed at the preferred rate if long term) and ordinary income (taxed at ordinary income tax rates). If the annuity is a life annuity and the annuitant survives beyond life expectancy, the capital gain portion of the annuity becomes taxable as ordinary income.20 The portion allocated to recovery of basis, however, continues tax free for life. If the promise to pay the annuity installments is secured (as with a deed of trust), the result is different: Any capital gain must be fully recognized in the year of the exchange. As noted earlier, this is not an issue when the exchange property is cash or a high-basis capital asset. If the annuity becomes worthless (e.g., the payor becomes insolvent), the remaining value (price paid less the value of annuity installments received) may be deducted by the annuitant as a capital loss.21 Basis is affected by the existence of a gift interest in a private annuity. Specifically, a tax may be incurred if the fair market value of the property exchanged exceeds the present value of the annuity or if it exceeds the amount the annuitant would have paid an insurance company for the same benefit. The excess is the amount treated as a gift.22 If this happens, the payor assumes the annuitant’s basis in that part of the property. This affects both depreciation/amortization deductions available to the payor and capital gain on a later sale. If the primary purpose of private annuities is to remove the asset from the annuitant’s gross estate for estate tax purposes, the payments stop at the death of the annuitant, leaving no remaining value to tax. If at death there is a surviving spouse and the annuity is structured to continue for the lifetime of the survivor (joint and survivor annuity), the marital deduction permits deferral of any estate tax on the value of the annuity payments remaining unpaid at the first death.23 On the death of the survivor, the annuity term expires, leaving no remaining value to tax. Private annuity settlement options include Let’s Celebrate the Soul in Solo Other lawyers say you’re a maverick. Maybe they have you figured right: You go your own way, make your own decisions — blaze your own law practice. lexisONE® likes your style. It’s why we offer LexisNexis™ research priced by the day, week or month for solos. With our research packages, you’re free to access the LexisNexis research tools and materials you need, for the times you need them. Access: • LexisNexis™ Enhanced Case Law • Annotated Rules and Statutes • Shepard’s® Citations Service • Public Records • Administrative Materials • Journals and Law Reviews • News • Matthew Bender® Analytic Content • Expert Witness Directories • Verdicts and Settlements The price won’t hold you back. Research packages from lexisONE include free printing and unlimited searching, and access to the LexisNexis™ Total Research System — to help you stay ahead of the pack. LexisNexis research from lexisONE. You can go your own way. lexisONE. Let’s Solo. www.lexisone.com/solo The Resource for Small Law Firms LexisNexis and the Knowledge Burst logo are trademarks, and Shepard’s and lexisONE are registered trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. © 2003 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. AL6271 Statement of Ownership, Management and Circulation UNITED STATES POSTAL SERVICE (Required by 39 USC 3685) 1. 2. 3. 4. Publication Title: Los Angeles Lawyer Publication Number: 01622900 Filing Date: October 1, 2004 Issue Frequency: Monthly (Except combined July/August) 5. Number of Issues Published Annually: 11 6. Annual Subscription Price: $14.00 members; $28.00 nonmembers 7. Complete Mailing Address of Known Office of Publication: Los Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503 8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Los Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503 9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor Publisher: Samuel L. Lipsman, Los Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503. Editor: Samuel L. Lipsman, Los Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503. Managing Editor: Samuel L. Lipsman, Los Angeles Lawyer, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503. Contact Person: Samuel L. Lipsman. Telephone: (213) 896-6503 10. Owner: Los Angeles County Bar Association, 261 S. Figueroa Street, Suite 300, Los Angeles, CA 90012-2503 11. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities. None 12. Tax Status. The purpose, function, and nonprofit status of this organization and the exempt status for federal income tax purposes: Has Not Changed During Preceding 12 Months. N/A 13. PublicationTitle: Los Angeles Lawyer. 14. Issue Date for Circulation Data Below: September 15. Extent and nature of circulation: (Column 1: Average No. Copies Each Issue During Preceding 12 months. Column 2: Number Copies of Single Issue Nearest to Filing Date.) Column 1 Column 2 a. Total Number of Copies (Net Press Run) 24,649 31,030 b. Paid and/or Requested Circulation (1) Paid/Requested Outside-County Mail Subscriptions stated on Form 3541 23,381 29,501 (2) Paid In-County Mail Subscriptions stated on Form 3541 0 0 (3) Sales through Dealers and Carriers, Street Vendors, and Counter Sales) 0 0 (4) Other Classes Mailed Through the USPS 135 135 c. Total Paid and/or Requested Circulation 29,636 23,516 d. Free Distribution by Mail 215 208 e. Free Distribution Outside the Mail 0 91 f. Total Free Distribution 215 299 g. Total Distribution 29,851 23,815 h. Copies Not Distributed 1,179 834 i. Total 31,030 24,649 j. Percent Paid and/or Requested Circulation 99% 99% 16. This Statement of Ownership will be printed in the November 2004 issue of this publication. 17. Signature and Title of Editor, Publisher, Business Manager, or Owner: (Samuel L. Lipsman, Publisher. Date: 9/22/04. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including multiple damages and civil penalties). 16 Los Angeles Lawyer November 2004 annuity payments for the life of the annuitant, for a specific period of time, for the joint lifetimes of joint annuitants and that of the survivor, and for life of the annuitant with the refund of any principal remaining upon premature death paid to a named beneficiary. As noted above, the annuity installments may also be level or inflation-adjusted. To the extent a benefit is payable on the death of the annuitant, that benefit constitutes an asset included in the gross estate of the deceased.24 There are income tax consequences for the payor as well. First, there is no deduction for payments made to the annuitant25 since they are deemed payments on the purchase price of the property. Also, if the property exchanged for the annuity is a wasting asset, the depreciation/amortization deductions are adjusted in accordance with the basis adjustment in the hands of the payor.26 This is particularly important if the property was fully depreciated/amortized by the annuitant prior to the exchange. There may also be gift tax consequences to the payor. Gift tax may be imposed on the private annuity transaction if the value of the annuity exceeds the fair market value of the property exchanged, because the payor is deemed to make a gift to the annuitant with every annuity payment. These sometimes unexpected—and often unfavorable—consequences should be avoided unless part of a larger plan. There may also be consequences for the payor’s estate tax if the payor dies before the annuity obligations have ended. Remember that the obligation to make annuity payments does not attach to the property exchanged; it is personal to the payor. Thus, even if the property is sold after the exchange, the payor’s obligation remains. If the payor dies before the annuitant, the annuity obligation continues as a claim against the payor’s estate, and the estate receives an estate tax deduction in a like amount. The then-present value of the remaining annuity payments sets the amount of the estate tax deduction for that claim.27 Of course, if the payor dies still owning the exchange property—no matter the timing of death of the two parties, except for exchange property classified for income tax purposes as “income in respect of a decedent”—the payor’s estate receives a new basis equal to that used in reporting the federal estate tax.28 The generation-skipping transfer tax (GSTT) applies not only to trusts but to “trust equivalents.”29 Included among the latter are “insurance and annuity contracts.”30 That fact notwithstanding, a GSTT on a private annuity is rare. Practical Considerations Practical considerations in evaluating the use of private annuities in estate planning include the following: • In theory, any type of property can be used for the private annuity transaction. The benefits are greatest, however, when the annuitant either wants to spread the capital gain taxes on appreciated property over several years or wants to avoid estate taxes. • In order to protect against an IRS claim that the transaction was not made “at arm’s length” (that is, was a product of collusion designed to improperly reduce taxes), the annuitant and payor may consider engaging separate attorneys. • The payor may be unimpressed with the idea of buying what he or she expects to inherit. There are at least two reasons to acquire the asset by means of a private annuity: 1) It eliminates all doubt about the transfer of the asset—a will can be changed, but the private annuity agreement cannot be modified without the consent of both parties, and 2) Liabilities that could consume the property in its present form (such as the costs of long-term nursing home care) may be eliminated. • Sometimes, the payor develops a startling and abiding interest in the longevity (or lack thereof) of the annuitant, an interest that could disrupt an otherwise healthy family relationship. If the annuitant lives beyond life expectancy, the payor pays more than expected—perhaps much more. • If the annuitant outlives life expectancy, the capital gain portion of the annuity installments becomes ordinary income. • The payor receives no income tax deduction for the annuity payments. The need to earn a large enough pretax return to permit the payment of annuity installments without invading the principal may place investment pressure on the payor that leads to unreasonable risks. • If the annuitant lives a long time, inflation will reduce the purchasing power of the annuity payments, but that will also make it easier for the payor to make the payments. • The annuitant must rely on the payor’s unsecured promise to pay. • The annuitant is at risk that the payor’s creditors will take the property and leave the payor without the resources from which to make the annuity payments. • The payor’s estate remains liable for the private annuity obligation, even if the payor predeceases the annuitant. • Incorrect valuation can lead to an unexpected gift or estate tax liability. • If the annuitant is older, the required annuity payments may be unaffordably high. • If the annuity payments are not needed for living expenses of the annuitant, the accumulation of excess income will increase the value of the annuitant’s estate, offsetting all or part of an important advantage of the private annuity, effectively converting the transaction into an installment sale. The most effective way to eliminate these core risks is to combine a private annuity with a foreign, nongrantor trust. This avoids the risk that creditors of the annuitant will take the annuity income or that creditors of the payor will take the exchange property or its proceeds. It eliminates—or substantially eliminates—income taxes of the payor (by selecting a no-tax jurisdiction), thereby reducing any pressure to take unwarranted investment risks in satisfying the annuity obligation. It also avoids the problems that can arise if the payor dies before the annuitant by reducing basis in the hands of the payor. The absence of a gift or estate tax eliminates the generation-skipping transfer tax. By selecting a jurisdiction that has repealed or lengthened the perpetuities period, an enormous multigenerational family capital resource becomes possible for even modest estates. ■ 15 Estate of Fabric v. Commissioner, 83 T.C. 932 (1984). 16 Id. at 938. 17 Estate of McDowell v. Commissioner, T.C.M. 198627 (1986). 18 Treas. Reg. §25.7520-3(b)3. 19 Burnet v. Logan, 283 U.S. 404 (1931); Lloyd v. Commissioner, 33 B.T.A. 903 (1936); Estate of Bell v. Commissioner, 60 TC 469 (1973). 20 Rev. Rul. 69-74, 1969-1 C.B. 43. 21 McInvale v. Commissioner, 936 F. 2d 833, 939 (5th Cir. 1991). 22 For example, assume the annuitant (a female) is 65 years old and transfers $100,000 to her child in exchange for a private annuity. The annuity factor is found in IRS Publication 1457, Actuarial Values-Alpha Volume. It is 7.1213, assuming an interest rate of 10% under I.R.C. §7520 (Table S 10.10)). The annual annuity payments should be $14,042. Therefore, if the annuity payments are less, the excess value is a gift. For example, if the annual annuity payments are set at $12,000 instead of $14,042, the gift is $14,542, calculated as ($14,042-$12,000) x 7.1213. The best way to deal with this excess value is to switch the transaction from a a one-time gift of excess value to a full-value annuity payment level, a portion of which would include annual gifts that may fall within the annual gift tax exclusion. 23 I.R.C. §2056. 24 I.R.C. §2039(b). 25 Rev. Rul. 72-81, 1972-1 C.B. 98. 26 I.R.C. §167(a)(2). 27 I.R.C. §2053(a)(3). 28 I.R.C. §1014. 29 I.R.C. §2611(a). 30 I.R.C. §2652(b). 1 In 1991, the rate was 11%. In September 2004, it was 4.6%. 2 In Re Baker’s Estate, 345 Pa 308, 26 A. 2d 202 (1942) (private annuity agreement held enforceable even though the transferor-annuitant died prematurely). 3 The present value of a private annuity is determined under the IRS tables for valuing limited interests. See Rev. Rul. 62-137, 1962-2 C.B. 28. These tables appear in Treas. Reg. §§20.2031-10(f) and 25.2512-9(f). 4 Rev. Rul. 62-136, 1962-2 C.B. 12. 5 Estate of Bell, 60 T.C. 469 (1973). 6 Priv. Ltr. Rul. 9009064 (Dec. 8, 1969). 7 All references to the Internal Revenue Code (I.R.C.) are to the Internal Revenue Code of 1986, as amended. 8 Stern v. Commissioner, 650 F. Supp 16 (D. Nev. 1986); see also Estate of Fabric v. Commissioner, 83 T.C. 932, 935 (1984). 9 Lazarus v. Commissioner, 58 TC 854 (1972), aff’d, 513 F. 2d 824, 829 (9th Cir 1975). 10 I.R.C. §2505(a). 11 I.R.C. §§2701 and 2702 are predicated on a gift with a retained interest by the donor. 12 I.R.C. §1014. 13 Basis in the hands of the children (as payor) is the total payments paid to the parent (the annuitant) to the date of sale, plus the then-present value of the remaining payments. Thus, if: 1) the annuitant’s life expectancy on the date of exchange is 12.5 years (a father’s life expectancy at age 75 under Treas. Reg. §1.72-9, Table V), 2) the annual installments are set at $14,042, and 3) the children immediately sell the property, the basis for computing gain is $175,525. To further illustrate this example, if the property is depreciable, such as an apartment building, and if payments were made to the annuitant for 10 years before the the children sell the property, the calculation of the children’s new basis would be: 1) Payments made to date of sale ($14,042 x 10): $140,420 2) Present value of remaining payments (12.5 x $14,042): $175,525 3) Total (1+2): $315,945 4) Less depreciation: ($40,000) 5) Children’s basis for computing gain on sale: $275,945 14 Rev. Rul. 80-80, 1980-1 C.B. 194. Los Angeles Lawyer November 2004 17 Practice Tips BY FREDERICK F. MUMM Proving Willfulness in Copyright Infringement Actions WHEN A COPYRIGHT HOLDER IS ABLE TO PROVE that a properly registered work has been infringed, the Copyright Act provides for the recovery of either statutory damages or actual damages, which are frequently minimal, hard to prove, or both.1 The Copyright Act also gives the court discretion to award attorney’s fees to the prevailing party in an action based on copyright infringement.2 This combination of statutory damages and the potential for recovery of attorney’s fees provides a potent weapon for plaintiffs in copyright actions. Indeed, copyright holders need not suffer any actual damages nor prove that the infringer made any money from the infringement to be entitled to a statutory recovery.3 If the copyrighted work is published, all that copyright holders need show is that they registered their works with the U.S. Copyright Office either before the infringement or within three months of first publication.4 An eligible copyright holder can elect between statutory and actual damages at any time before final judgment is rendered.5 Pursuant to amendments adopted in 1999 for actions filed on or after December 9, 1999, the recovery for statutory damages ranges from $750 to $30,000.6 However, if the plaintiff can prove that the infringement was willful, the upper limit rises to $150,000 per infringement.7 The plaintiff in a copyright infringement action, therefore, can gain a tremendous amount of leverage if it can credibly argue that an infringement was willful. The statute itself does not define “willfulness.” The Ninth Circuit has explained that to prove willfulness a plaintiff must demonstrate that the defendant knew that its conduct infringed the plaintiff’s copyright.8 Thus the plaintiff must be able to prove that the defendant knew two things: 1) that the work was copyrighted, and 2) that the defendant’s activities constituted infringement.9 These elements are most easily satisfied when the infringer continues to infringe after receiving written notice (such as a cease and desist letter) from the copyright owner.10 However, such written notice is not necessary. Lacking evidence of actual notice, the courts can look to a variety of factors to help determine whether the two elements of the test have been met. One frequently invoked factor is the extent of a defendant’s familiarity with the copyright laws. There are numerous cases holding that the fact that the defendant has been sued in the past for copyright infringement suggests that the defendant should have known better this time around. For example, in Hideout Records and Distributors v. El Jay Dee, Inc.,11 the defendant nightclub performed music without a license from ASCAP.12 Previously, ASCAP had successfully sued the nightclub and its owners on a similar claim. In this case, the nightclub and its owners contended that they refused to enter into a license agreement with ASCAP based on the advice of their counsel, who maintained that the ASCAP license violated antitrust laws. The defendants argued that their reliance on counsel was reasonable and that they acted in good faith. The district court flatly rejected the defendants’ contention. First, it held that an infringer is liable under the copyright law whether or not it acted innocently and in good faith.13 18 Los Angeles Lawyer November 2004 Moreover, the fact that the defendants previously had been sued by ASCAP demonstrated to the court that the defendants had “deliberately violated the copyright laws.”14 The holding that prior copyright lawsuits against the defendant support a finding of willfulness occurs time and again. In Flyte Tyme Tunes v. Miszkiewicz,15 the plaintiffs’ musical compositions were publicly performed in the defendants’ establishment, the Bamboo Room. The defendants had refused to enter into a license agreement with ASCAP, despite previous suits brought against them by ASCAP. Noting that the defendants’ actions constituted “sneer[ing] in the face of copyright owners and laws,” the court found that the previous lawsuit and warnings by ASCAP were sufficient to establish that the infringements were willful.16 The foregoing cases underscore another, equally important point: Evidence of the defendant’s prior copyright violations may be admissible. A plaintiff should argue that this evidence is relevant to show that the defendant was aware of the copyright laws at the time of the alleged infringement. The admissibility of prior infringement actions is not guaranteed, however. The defendant will maintain that the evidence is unduly prejudicial and should be excluded17—and the evidence presumably would be excluded unless the defendant argued that it lacked familiarity with the copyright laws. The plaintiff’s counsel, therefore, would be well advised to file a motion in limine prior to trial. An advance ruling will avoid the possible disruption to the flow of the plaintiff’s case that might result from a fight over admissibility in the middle of the trial. A variation on the argument that the defendant has been previously sued appeared in A & M Records, Inc. v. Abdallah.18 In that case the defendant provided blank cassettes to counterfeiters that had been “timed” to the length of a target recording.19 Under the arrangement, the counterfeiter would submit a legitimate cassette of the recording to the defendant, who would time the cassette, create blank cassettes of the appropriate length, and ship the legitimate cassette along with the requested number—typically thousands—of timed, blank cassettes back to the counterfeiter. The counterfeiter would then complete the process by making illegal copies of the original cassette on the timed cassettes. The evidence established that the defendant was aware that his largest customer had been raided by the police for counterfeiting activities.20 Moreover the defendant’s business was raided on at least three occasions by police. Nonetheless, the defendant continued to make and sell timed cassettes. The court found that the defendant was liable for contributory infringement and that the infringement was willful.21 The police raids played a role analogous to prior copyright litigation in providing evidence that the defendant knew that its activities violated the copyright laws. Clearly, submitting evidence of police raids on the defendant’s busiFrederick F. Mumm is a partner with Davis Wright Tremaine LLP in Los Angeles, where he specializes in intellectual property and media law litigation. ness can be an extremely effective method of convincing the jury that the infringement was willful. Opinions such as those in Hideout Records, Flyte Tyme Tunes, and A & M Records can be used to support the admissibility of such evidence in an appropriate case. Sometimes the nature of the defendant’s business itself supports an inference that it is aware that its actions constitute copyright infringement. In Fallaci v. New Gazette Literary Corporation,22 for instance, the defendant newspaper published a Russian language translation of an article appearing in the Washington Post. The court held that “as a publisher of a copyrighted newspaper, the defendant was or should have been aware that its unauthorized republication of a Washington Post article constituted copyright infringement.”23 Partly on this basis, the court found the infringement to be willful for purposes of enhanced statutory damages. The court used similar reasoning in Fitzgerald Publishing Company, Inc. v. Baylor Publishing Company, Inc.24 Fitzgerald owned the copyright to a 16-volume series titled Golden Legacy and entered into a written agreement with Baylor authorizing it to reprint the series. The contract did not give Baylor a right to change the copyright notice, which named Fitzgerald as the owner. After Fitzgerald terminated the agreement when Baylor failed to make certain required payments, Baylor presented the written agreement to arrange for a printer, which became a codefendant in the suit, to reprint the series. Baylor also instructed the printer to delete Fitzgerald from the copyright notice and insert Baylor in the notice as the owner of the copyright. The court rejected the printer’s defense that it innocently relied on the written contract between Fitzgerald and Baylor, noting that the contract was silent as to changing the copyright notice. In finding the printer liable for willful infringement, the court stated: “[The printer] had a copy of the BaylorFitzgerald contract on March 22, which we may assume it read, and—as an experienced publisher must have realized—that it contained no authorization to change the copyright notice.”25 A plaintiff in a copyright action should consider carefully the defendant’s involvement with copyrighted works as part of its normal business activities. As the foregoing cases suggest, a finding of willfulness may be obtained as a result of the nature of the defendant’s business. Piracy Cases Not unexpectedly, piracy cases frequently result in findings of willful infringement. These cases often include evidence of prior involvement in copyright litigation and/or express notice of infringement. In N.A.S. Import Corporation v. Chenson Enterprises, Inc.,26 for example, the defendant infringed a handbag buckle design. The court concluded that the striking similarity of the plaintiff’s and the defendant’s design, along with the defendant’s access to the plaintiff’s design, provided strong evidence of willfulness. The deciding factor, however, was that the defendant continued to sell handbags incorporat- ing the buckle after receiving notice of infringement and even after the defendant hired an attorney who advised the plaintiff that the defendant would stop selling the infringing handbags. Under these circumstances, the Second Circuit took the unusual step of reversing a finding that the infringement was not willful. In Sega Enterprises v. MAPHIA,27 the court found willful contributory copyright The Peer-to-Peer Conundrum Recently, the Recording Industry Association of America (RIAA) initiated lawsuits against individuals who have downloaded copyrighted musical works through peer-to-peer services such as Morpheus, E-Donkey, Grokster, Kazaa, and Imesh. The media have reported that the number of individuals sued by the RIAA for copyright infringement is now approaching 5,000.1 None of these cases has resulted in a published decision indicating whether these defendants will be held liable for willful infringement. Nonetheless, a consideration of the factors invoked in more traditional willful infringement analysis—along with a review of the decision in UMG Recordings, Inc. v. MP3.Com, Inc.,2 an early action by several recording companies against a peer-to-peer service—may provide a clue as to how the courts will treat the RIAA claims. MP3.Com created a service that ostensibly allowed individuals who had purchased CDs to store, listen, and customize the recordings contained on their CDs via any Internet connection.3 MP3.Com provided this service by purchasing tens of thousands of CDs, converting the CDs into MP3 format, and storing the MP3-formatted recordings on its computer servers. A subscriber, before being allowed access to the service, had to prove that he or she had actually purchased a copy of the CD. This could be accomplished by inserting a copy of the purchased CD into a computer CD-drive for a few seconds (“Beam-it Service”) or by purchasing a copy of the CD from a cooperating online retailer (“Instant Listening Service”). Once having demonstrated ownership of the CD, the subscriber could then listen to the recording via MP3.Com from anywhere in the world. A number of recording companies sued for copyright infringement. MP3.Com contended that its service was a fair use in that its service merely provided subscribers with the ability to effectively store and “space shift” their recordings without carrying around the physical discs they had purchased. The court rejected the fair use defense and granted the plaintiffs’ summary judgment motion on liability.4 After a bench trial, the court issued findings on whether the infringement had been willful.5 The court found that defendant was aware of the copyright laws, referring to a book put out by the defendant that warned MP3 users not to post copyrighted songs on the Internet. The court also noted concerns raised by some of defendant’s engineers over potential liability for copyright infringement for the unauthorized copying for commercial purposes of hundreds of thousands of songs. Finally, the court found the fair use justification to be little more than a sham: “Under either the ‘Beam It’ service or the ‘Instant Listening’ service users of My.MP3.Com did not, in fact, store their own CDs or the sounds transmitted from their own CDs with My.MP3.Com.”6 Based on those findings, the court concluded that the defendant had actual knowledge that it was infringing the plaintiffs’ copyright. Despite the finding of willfulness, the court awarded statutory damages of only $25,000 per CD.7 The plaintiff always has the burden of proving willfulness. Thus, in the RIAA actions the question of willfulness will have to be determined case by case and will depend on the knowledge of the individual defendant. Presumably, individuals sued by the RIAA will not previously have been subjected to an action for copyright infringement. Similarly, in most cases, one would not expect these individuals to be involved in a business whose nature would support an inference that they were aware of their infringement. Nonetheless, the publicity given to the issue in general and the RIAA lawsuits in particular makes it fairly likely that most individuals are aware that the unauthorized downloading of copyrighted songs constitutes copyright infringement. In MP3.Com, evidence that company engineers had expressed concern about infringement supported a finding of willfulness. Similarly, in the RIAA cases evidence that individual defendants had discussed the issue with friends or associates could be decisive. Individuals who download copyrighted works through the peer-to-peer services, therefore, face a fairly substantial risk of liability for willful infringement.—F.F.M. 1 RIAA Sues 744 Music Pirates, N.Y. POST, Aug. 26, 2004. The Ninth Circuit recently held that peer-to-peer providers are not liable for vicarious copyright infringement. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., No 03-55901 (Aug. 19, 2004), available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf /E9CE41F2E90CC8D788256EF400822372/$file /0355894.pdf?openelement 2 UMG Recordings, Inc. v. MP3.Com, Inc., 2000 WL 1262568 (S.D. N.Y 2000) (ruling on statutory damages after trial). 3 See UMG Recordings, Inc. v. MP3.Com, Inc., 92 F. Supp. 2d 349 (S.D. N.Y. 2000) (ruling on summary judgment as to liability). 4 The court found that none of the fair use factors favored a finding of fair use. UMG Recordings, 92 F. Supp. 2d at 351-52 (“In sum, on any view, defendant’s ‘fair use’ defense is indefensible and must be denied as a matter of law.”). 5 UMG Recordings, Inc., 2000 WL 1262568. 6 Id. at *3, *5. 7 The court noted that given the large number of works infringed, even under the defendant’s calculation, the total award approximated $118 million. Los Angeles Lawyer November 2004 19 infringement as a matter of law in ruling on a motion for summary judgment. In that case, the defendant operated an electronic bulletin board containing downloadable versions of SEGA copyrighted video games. The evidence showed that the defendant sold “copiers” that allowed users to play games on SEGA consoles that had been downloaded from the bulletin board. The copiers also allowed users to copy SEGA game cartridges onto floppy discs. The bulletin board encouraged visitors to upload SEGA games and charged a “donation” fee for downloads. The knowledge that users were uploading and downloading SEGA games, the solicitation of uploads, and the sale of the copiers was sufficient for the court to find that the contributory infringement was willful as a matter of law. Many of the factors that lead to a finding of willfulness in ordinary copyright infringement cases support a similar finding in piracy cases. For example, the nature of the defendant’s business was invoked by the Second Circuit to support an inference of knowledge in a piracy action. In Yurman Design, Inc. v. PAJ, Inc.,28 the court affirmed a jury finding of willfulness based, in part, on the defendant’s experience in the relevant business—in this case, jewelry manufacturing. A buyer from Zales had asked the defendant if it could manufacture jewelry similar to some samples that the buyer said had been made by an Italian manufacturer. The buyer did not disclose to the defendant, however, that the Italian manufacturer had made the samples based on Yurman’s designs at the request of the Zales buyer. After the defendant manufactured and sent to Zales pieces similar to the samples, Zales returned the pieces, saying they were similar to the plaintiff’s design. The defendant thereupon engaged in a massive advertising campaign and sold the pieces under its own label. In its defense, the defendant claimed that, although it admittedly copied the samples, it did not know that they were copyrighted or owned by Yurman. The court sustained the jury’s finding of willfulness after considering evidence that the defendant had been in the jewelry business for 23 years, had attended major jewelry industry trade shows, knew of the plaintiff’s designs, and had failed to investigate any copyright violations after Zales had rejected the pieces.29 Artificial Entities If the defendant is not a natural person, a finding of willfulness requires that the appropriate person in the organization have knowledge of the infringement. One of the few cases to discuss this issue is Los Angeles News Service v. Reuters Television International, Ltd.30 In Reuters, the plaintiff testified that he had 20 Los Angeles Lawyer November 2004 spoken with the defendant’s “top dog” in Los Angeles and had offered to license the copyrighted material for several thousand dollars. The top dog had refused the offer, and acknowledged that it “would be wrong” to use the plaintiff’s tapes without permission. Subsequently, the corporate defendant distributed the plaintiff’s works to its subscribers. The court found these facts to be insufficient to conclude that the infringement was willful “in the absence of any evidence that [the top dog himself] copied the [plaintiff’s works] or knew of or contributed in any way to their unlawful copying” by the defendant.31 Nimmer cites legislative history to support the same conclusion: Language in some of the legislative history supports the interpretation that the knowledge underlying willfulness must in fact be possessed by the person responsible for the infringing conduct. Under that interpretation, it would not suffice to impute knowledge by an agency relationship with another employee, who in fact was notified of, or was otherwise aware of, the possible infringement.32 The legislative history cited by Nimmer is contained in the 1965 Supplementary Register’s Report on the General Revision of the U.S. Copyright Law. This report summarized proposals for an overhaul of the 1909 Copyright Act and commented on the suggested changes. An earlier Register’s Report on the General Revision of the U.S. Copyright Law, published in 1961, had noted that the 1909 Act contained a provision that allowed enhanced statutory damages when a defendant continued to infringe the plaintiff’s work after either written notice of infringement or service of a complaint for infringement. The 1961 report pointed out that the obvious assumption underlying this provision—that receipt of actual notice was proof of willfulness—was not always true. The report suggested that notice sent to, for instance, a television station may arrive too late for the broadcaster to prevent the broadcast. In such a situation, the infringement would not be willful despite the notice. The 1965 report referenced with approval this conclusion and provided a further example of when actual notice would not conclusively prove willfulness: “where notice is sent to a large retail store but fails to reach the individual employees responsible for the infringement for some time.”33 Although this discussion reflects a flaw in the 1909 Act, its clear import is that, in order to find willfulnes in cases involving an artificial entity, the person who is aware of the owner’s copyright must also be involved in the infringement. The holding in the Reuter’s case is consistent with this interpretation. Nonetheless, other submitted evidence may provide inferences sufficient to fill in the gap. For instance, in Spencer Promotions Inc. v. 5th Quarter Enterprises Inc.,34 the defendant owner of a bar testified at a bench trial that he knew that he needed a license to show a televised pay-per-view fight in the bar, having previously purchased similar licenses. He also testified that he did not know his bar was televising the fight and that he had instructed his employees to notify callers that the fight would not be shown. The court found this testimony not credible in light of evidence that an illegal or unauthorized descrambling, decoding, and/or recording device had to be used to intercept and decode the signal and the defendant’s admission that he knew he needed a license to show the broadcast.35 This additional evidence was deemed sufficient to support a finding of willfulness. The significance of actual notice in proving willfulness may be questioned if the defendant submits convincing evidence of a good faith belief in the innocence of its conduct. In this situation, even if the notice reaches the appropriate person, the defendant can avoid a finding of willfulness.36 For instance, in Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc.,37 the defendant believed that its use of the infringing work was permitted pursuant to an ASCAP license, despite having received notice of infringement from the plaintiff. Under these circumstances the court considered whether the defendant could deduct a portion of its overhead from its revenues in determining its profits from the infringement under the 1909 Act. The plaintiff maintained that the defendant had infringed its work consciously and deliberately and should not have been allowed to deduct overhead. In rejecting this argument on appeal, the Ninth Circuit affirmed the trial court’s determination that the defendant’s good faith belief supported a finding that the infringement was not willful.38 A credible claim that an infringement was willful can greatly increase the value of a copyright case. Not only may the plaintiff seek an enhanced statutory damage award but a finding of willfulness can also be a factor in the court’s determination of whether to award attorney’s fees.39 Although providing notice of infringement may be the easiest way to demonstrate willfulness, the lack of notice is not fatal to a plaintiff’s claim. In building a case for willful infringement, the plaintiff should explore the defendant’s prior history with copyright actions and any other experience it has had with copyright issues. Knowledge of infringement by the defendant may be inferred from such factors as the nature of the defendant’s business or the frequency of the defendant’s appearance at trade shows where it would have been exposed to the plaintiff’s work. ■ 1 Copyright Act of 1976 (as amended), 17 U.S.C. §504(c). 2 17 U.S.C. §505. 17 U.S.C. §412 has certain registration requirements that must be met for the court to be authorized to award statutory damages or attorney’s fees. See note 4, infra, and accompanying text. 3 Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F. 3d 1186, 1194 (9th Cir. 2001). 4 17 U.S.C. §412(2). If the infringement occurs before the work is published, 17 U.S.C. §412(1) applies, under which the registration must precede the infringement to entitle the holder to statutory damages and the potential to recover attorney’s fee. 5 17 U.S.C. §504(c)(1). 6 Id. (Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub. L. 106-160, §4, 113 Stat. 1774.) 7 17 U.S.C. §504(c)(2). If the defendant proves that the infringement was innocent, the lower end of the statutory range is reduced to $200. Id. 8 Peer Int’l Corp. v. Pausa Records, Inc., 909 F. 2d 1332, 1335 and n.3 (9th Cir. 1990). 9 Contrast this formulation with the statutory requisites for the defendant to prove an infringement was innocent: “[W]here the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement….” 17 U.S.C. 504(c)(2). 10 See, e.g., Pausa Records, 909 F. 2d at 1336; Jobete Music Co. v. Media Broadcasting Corp., 713 F. Supp. 174, 179 (M.D. N.C. 1988). 11 Hideout Records and Distribs. v. El Jay Dee, Inc., 601 F. Supp. 1048 (D. Del. 1984). 12 ASCAP is a performing rights organization that licenses third parties such as bars, nightclubs, and radio stations, to perform nondramatic musical works, the rights to which are owned by the members of ASCAP. See 17 U.S.C. §101. 13 Hideout Records, 601 F. Supp. at 1052. 14 Id. at 1054. 15 Flyte Tyme Tunes v. Miszkiewicz, 715 F. Supp. 919 (E.D. Wis. 1989). 16 Id. at 922. See also Coleman v. Payne, 698 F. Supp. 704, 706 (W.D. Mich. 1988) (two prior infringement actions against the defendant); Delman Fabrics Inc. v. Holland Fabrics Inc., 228 U.S.P.Q. 596 (S.D. N.Y. 1985) (13 prior copyright actions filed against the defendants); Lauratex Textile Corp. v. Allton Knitting Mills Inc., 519 F. Supp. 730, 733 (S.D. N.Y. 1981) (finding that docket sheets showing that the defendant had been sued in six other copyright cases supported finding of willfulness). 17 See FED. R. EVID. R. 403. 18 A & M Records, Inc. v. Abdallah, 948 F. Supp. 1449 (C.D. Cal. 1996). 19 In order to be marketable, a counterfeit tape must be the same length as the legitimate tape. Otherwise, periods of silence would appear at the ends of both sides of the tape. 20 A & M Records, 948 F. Supp. at 1455. 21 Id. at 1457. 22 Fallaci v. New Gazette Literary Corp., 568 F. Supp. 1172 (S.D. N.Y. 1983). 23 Id. at 1173. 24 Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co., Inc., 807 F. 2d 1110 (2d Cir. 1986). 25 Id. at 1115. 26 N.A.S. Import Corp. v. Chenson Enters., Inc., 968 F. 2d 250 (2d Cir. 1992). 27 Sega Enters. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996). 28 Yurman Design, Inc. v. PAJ, Inc., 262 F. 3d 101 (2d Cir. 2001). 29 Id. at 113. 30 Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 924 F. Supp. 1275 (C.D. Cal. 1996), aff’d in part and rev’d in part on other grounds, 149 F. 3d 987 (9th Cir. 1998). 31 Los Angeles News Serv., 924 F. Supp. at 1280. 32 4 MELVILLE B. & DAVID NIMMER, NIMMER ON COPYRIGHT, Infringement—Remedies §14.04[B][3] at 14-57. 33 SUPPLEMENTARY REGISTER’S REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW (1965), reprinted in 9 MELVILLE B. & DAVID NIMMER, NIMMER ON COPYRIGHT, App. 15, 165. 34 Spencer Promotions Inc. v. 5th Quarter Enters. Inc., 38 U.S.P.Q. 2d 1893 (N.D. Cal. 1996). 35 Id. at 1896. 36 Danjaq LLC v. Sony Corp., 263 F. 3d 942 (9th Cir. 2001); see also Frank Music Corp. v. Metro-GoldwynMayer, Inc., 772 F. 2d 505, 515 (9th Cir. 1985) (interpreting 1909 Act provision regarding recovery of infringer’s profits and holding that evidence of a reasonable belief that use was licensed supported finding that infringement was not willful); Peer Int’l Corp. v. Pausa Records, Inc., 909 F. 2d 1332, 1336 (9th Cir. 1990) (“To refute evidence of willful infringement, [the defendant] must…establish its good faith belief in the innocence of its conduct…[and] that it was reasonable in holding such a belief.”). 37 Frank Music Corp., 772 F. 2d 505. 38 Id. at 515. 39 Historical Research v. Cabral, 80 F. 3d 377, 379 (9th Cir. 1996); Cable/Home Communication Corp. v. Network Prods., Inc., 902 F. 2d 829, 854 (11th Cir. 1990). Los Angeles Lawyer November 2004 21 by Fernando Gaytan and Deborah A. Kelly UNAUTHORIZED ENTRY The proliferation of the unauthorized practice of law poses a risk to the legal profession as well as the public W HADI FARAHANI ith the passage of the State Bar Act in 1927, codified at Business and Professions Code Sections 6000 et seq., efforts to define the practice of law and, by derivation, proscribe the unauthorized practice of law (UPL) began to gather steam. The act mandated membership in, and the payment of dues to, the State Bar of California for the privilege of practicing law in this state. A flurry of cases followed in the early 1930s in which the State Bar held attorneys accountable under the act for their actions involving nonattorneys. In 1931, for example, the State Bar imposed a one-year suspension on an attorney for violating the prohibition against fee sharing with nonattorneys. The attorney’s fees were derived from the fees collected by personal injury adjusters.1 Also in 1931, an attorney was suspended for having knowingly and intentionally aided and abetted UPL when he authorized a nonattorney to control case settlement negotiations and litigation.2 A few years later, in 1937, two attorneys were disbarred based on evidence that each had misled the court into believing a nonattorney was a licensed attorney.3 Business and Professions Code Section 6125 states a seemingly clear prohibition: “No person shall practice law in California unless the person is an active member of the State Bar.”4 But questions persist about what constitutes the practice of law. One court noted: As the term is generally understood, the practice of law is the doing and performing services in a court of justice in any manner depending therein throughout its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be pending in court.5 Other courts concur. Logic suggests that an understanding of what constitutes the practice of law should lead to a corollary Fernando Gaytan is an associate with Hadsell & Stormer. He wrote this article as a Skadden Fellow with the Los Angeles Center for Law & Justice. Deborah A. Kelly is a Los Angeles County deputy public defender. She wrote this article as staff attorney with the Los Angeles County Bar Association’s Domestic Violence Project. Gaytan and Kelly were members of Judge Aviva Bobb’s Unauthorized Practice of Law Task Force. 22 Los Angeles Lawyer November 2004 understanding of what constitutes UPL. However, the advent of real-time communications, the ease of interstate travel, increased use of nonattorney office employees and services, and other business pressures complicate the issue. The activities of the legal profession continue to provide fertile ground for UPL by those who are suspended, disbarred, or never licensed in the first place, and well-intentioned but unwary licensed practitioners may inadvertently become ensnared in violations and exposed to criminal charges, civil liability, and State Bar discipline. Therefore, basic knowledge about what constitutes UPL in California is crucial for every licensed attorney in the state. The most common occurrences in which duly licensed attorneys run afoul of the rules against aiding and abetting UPL by nonattorneys include: forming unauthorized partnerships between attorneys and nonattorneys, misrepresenting that an unlicensed person is entitled to practice law, permitting legal advice and counsel to be given by unlicensed staff persons, and allowing unsupervised preparation of legal instruments that require legal expertise. Aiding and Abetting UPL Law offices traditionally rely on the services of paralegals and other nonattorney support staff to achieve efficient operations. Undue reliance on nonattorneys, however, can exact a high price when an attorney fails to exercise adequate oversight. Although some attorneys have been found guilty of aiding and abetting UPL for failing to control or limit the activities of disbarred, suspended, or out-ofstate attorneys rendering advice in California, liability arises far more frequently from inadequate control or supervision of nonattorneys such as student law clerks, employees, and business collaborators.6 Attorneys who aid and abet UPL committed by their nonattorney employees face stiff penalties and disciplinary actions.7 Aiding and abetting occur when an attorney delegates too much authority to nonattorneys or fails to supervise legal services performed by nonattorneys. Attorneys frequently take these measures as a means to expand their practices. A typical situation involving the aiding and abetting of UPL occurs when a nonattorney performs the bulk of the work on a client’s case, with the attorney making all the necessary court appearances. In Matter of Steele, for example, an attorney delegated substantial control of his legal practice to a paralegal, including all initial investigations and even control of his client trust accounts.8 The attorney also created an arrangement in which the paralegal and attorney each received a portion of the firm’s profits, effec24 Los Angeles Lawyer November 2004 tively creating an unauthorized partnership with a nonattorney. The attorney was disbarred for aiding and abetting the paralegal’s UPL and for fee splitting.9 In immigration cases, the practice of relying on immigration consultants is particularly rampant.10 Collaborations between attorneys and nonattorneys in this context are characterized by flagrant violations of the Rules of Professional Conduct. Typical rules violations arise from an attorney failing to perform due diligence, relying completely on the nonattorney consultant’s work, and forming fee-splitting partnerships with nonattorney consultants. In Matter of Valinoti, an immigration attorney was suspended for 28 instances of professional misconduct in nine separate client matters. The attorney had handled over 2,720 immigration matters over the course of a year and a half. However, in achieving this high volume he failed to adequately evaluate each individual case, relying solely on the documents and forms prepared by nonattorney immigration consultants. The result was irreparable harm to his clients, who faced deportation due to fraudulent asylum claims.11 Indeed, UPL performed by nonattorney immigration consultants frequently causes the irreversible loss of crucial legal rights.12 The role of nonattorney consultants is not readily evident to the immigration court because licensed attorneys make all appearances, giving the impression that the applicant is adequately represented. And, all too commonly, the clients rarely learn of irregularities in their immigration documents until after their cases are already in jeopardy. Attorneys operating these schemes are actively aiding and abetting the UPL committed by unscrupulous immigration consultants and are exposing themselves to the full panoply of criminal and civil sanctions. The potential for UPL frequently presents itself when attorneys and nonattorneys work together on matters embedded with legal questions and legal consequences. The problem posed by the intersection of legal and nonlegal work is especially perilous when attorneys collaborate with other professionals to deliver services in related fields. The danger is underscored by the general prohibition against the formation of partnerships between attorneys and nonattorneys. For example, a young attorney was disciplined by the State Bar for forming a partnership with his father, a disbarred attorney.13 At issue in the case was whether the association between the attorney and his father was a partnership, in violation of Rule 3 of the Rules of Professional Ethics (the precursor to the California Rules of Professional Conduct).14 Such an arrangement raises two concerns: It may lead the public to believe that the nonattorney is authorized to practice law, causing detrimental reliance, and the union between an attorney and a nonattorney may inhibit the attorney’s autonomy in a way that causes harm to the client. Loss of autonomy is of particular concern to the courts because partnerships between attorneys and nonattorneys in related fields can evolve into “feeder” businesses, with each business dependent on the referral of clients from the other.15 Under these circumstances, if a law practice depends upon a feeder business to sustain itself, the duties of loyalty and confidentiality owed to clients may be compromised by economic pressures and other business circumstances. 16 Throughout the statutory scheme for the practice of law, the protection of clients’ rights is of paramount importance and provides the underpinnings for both the prohibition against partnerships between nonattorneys and attorneys and the sanctions imposed on attorneys who aid and abet UPL. For an attorney who has worked years to develop an expertise and build a career, relinquishing that unique professional identity is difficult. Nevertheless, under Business and Professions Code Section 6126(a), “[A]ny person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor.”17 Furthermore, attorneys who are involuntarily enrolled as inactive or are suspended or disbarred and who continue to identify themselves as authorized to practice law are committing a felony and may be sentenced to state prison.18 There are certain narrow exceptions to the requirement that attorneys practicing in California must be active members of the State Bar. These allow some flexibility for out-of-state attorneys to lend legal assistance in limited circumstances. Out-of-state attorneys may even represent California clients and serve as cocounsel with California attorneys in some situations.19 Nonetheless, while the multijurisdictional reality of modern legal practice often requires attorneys in different states to collaborate, individual states have a right and obligation to regulate the practice of law within their jurisdictions and protect members of the public from UPL.20 Thus, the exceptions for otherwise nonauthorized attorneys are limited. For example, an attorney was found to have aided and abetted the UPL of an unlicensed person because he introduced his California clients to a New York lawyer for advice regarding the laws of a foreign jurisdiction in which the New York lawyer was not admitted.21 (The New York lawyer could advise the California clients on New York law or on the law of any other jurisdiction in which the lawyer was admitted.) The California attorney was disciplined because he caused his clients to rely inappropriately on the advice of an attorney not licensed in California, and the California lawyer did so by drawing on the clients’ trust in the attorney-client relationship he had established with them.22 This illustrates how even the informal assistance of an attorney licensed in another state can evolve into UPL. Courts have taken a further step by finding that the mere promise by a suspended attorney to perform the duties of an attorney was a violation of the UPL statutes.23 The suspended attorney promised a client that he would file a complaint on her behalf. Although he received no compensation and submitted no documents to the court, by promising to perform duties normally relegated to an attorney he effectively held himself out as entitled to practice law, thus violating the prohibition against UPL.24 These cases are warnings to California attorneys working with out-of-state attorneys or forming working relationships with nonattorneys. Similar fact patterns are increasingly common. Also, attorneys find themselves under pressure to acquire specializations that often require collaborations with nonattorney professionals. Nevertheless, while working with nonattorneys may be a reality of modern legal practice, attorneys continue to have a duty to remain alert to representations that may induce a client’s trust in someone who does not have the requisite authority or skills to properly represent the client’s interests. Advice and Counsel While there is no bright-line definition in the UPL statutes of the practice of law, courts have stepped in to establish a definition with broad parameters.25 Within those parameters is the rendering of advice and counsel on matters requiring legal expertise in which a client’s rights may be affected significantly.26 This expansive view creates problems for nonattorney professionals who find their work enmeshed in complex transactions that require at least a cursory understanding of basic legal concepts.27 Nonattorney professionals and lay persons may find themselves in trouble regarding UPL when they venture beyond the basic knowledge required to perform their tasks and attempt to include legal advice within the scope of their services. Courts have addressed some of the issues presented by the intersection between the legal profession and other professions. An accountant was found guilty of UPL for advising a client on a complicated tax issue.28 The advice required a very close analysis of the federal tax code to determine whether the corporate client qualified for an unusual method of calculating tax. By the accountant’s own admission, the complex legal question required several days of research in a law library. This led the court to observe: “Generally speaking, whenever, as incidental to another transaction or calling, a layman, as part of his regular course of conduct, resolves legal questions for another at the latter’s request and for consideration, by giving him advice or by taking action for and on his behalf, he is practicing law if difficult or doubtful legal questions are involved which, to safeguard the public, reasonably demand the application of a trained legal mind.”29 Thus, while the services of a nonattorney may require basic knowledge of certain laws, advice given to clients in delivering these services cannot extend to matters involving complex legal issues.30 Conversely, advice on matters of slight importance to a case is not regarded as an attempt to practice law.31 In determining whether UPL has occurred, the extent to which advice given by an unlicensed person has crossed the boundary into the practice of law is analyzed within the framework of the entire pattern of conduct.32 Thus, activities that independently might not constitute UPL may, in the aggregate, lead to advice that is more than merely incidental. Of obvious concern are the consequences stem- ming from a client’s potentially detrimental reliance on advice that goes beyond matters of minor importance. In circumstances involving advice on foreign matters, UPL occurs when that advice is provided to a California client from an attorney not licensed in California,33 with some exceptions. This general rule does not, for example, preclude a foreign attorney from advising a client on the law of any foreign jurisdiction in which he or she is admitted. California Rules of Court permit foreign legal consultants to register with the State Bar and advise on foreign law so long as they do not advise on California law, make appearances, or prepare pleadings and instruments in California.34 Preparation of Legal Instruments The general dearth of free and low-cost legal services in California has compelled many low-income and working class residents to turn to self-help services or nonattorney legal document preparers to address their legal needs.35 Typically these services purport to assist persons representing themselves in a variety of legal matters, including bankruptcy, family law, landlord-tenant disputes, and immigration.36 These services are often touted as a low-cost alternative to expensive representation by an attorney, and the market for them continues to grow.37 Some of the activities taken to assist pro Los Angeles Lawyer November 2004 25 per litigants do not involve UPL. These include providing access to written materials on legal procedures such as evictions or acting as scriveners in the preparation of legal documents at the direction of a client.38 Courts also have found that work performed by nonattorneys that is merely preparatory and under the direct supervision of an attorney generally does not violate the UPL statutes.39 The very limited scope of tasks nonattorneys can perform in connection with legal documents includes filling out forms at the behest of the client. By contrast, the preparation of instruments that will affect the client’s legal rights, in accord with decisions made by the document preparer on behalf of the client, has long been held to fall within the ambit of the practice of law.40 As the demand for low-cost document preparation services continues to grow, there is an increased tendency for these service providers to make decisions that have legal consequences. The average consumers of self-help or scrivener’s services are often unaware that the legal document assistant or paralegal they have hired to fill out their forms has committed UPL in the course of helping them with their case.41 Frequently, the unfortunate consequence is the consumer’s loss of important rights or remedies. In numerous cases—ranging from landlord-tenant matters to bankruptcy assistance—courts have found that the mere selection of the types of forms a client should prepare to address a particular legal issue constitutes UPL.42 The California legislature has enacted regulatory schemes to govern a broad spectrum of nonattorney legal services. Business and Professions Code Sections 6400 et seq. regulate the role of legal document assistants, Sections 6450 et seq. regulate paralegals, and Sections 22440 et seq. regulate immigration consultants. Federal law regulates the activities of bankruptcy petition preparers.43 These various statutory provisions restrict nonattorney legal service providers from practicing law in the course of performing their services. These statutes also require that nonattorneys perform their duties under the direct supervision of an attorney or register with the appropriate state agency and post a bond in order to operate as scriveners at the client’s specific direction. Sanctions for Engaging in UPL Persons engaging in UPL, whether by intention or inadvertence, violate California statutes and State Bar ethics rules and may face criminal sanctions, civil consequences, and State Bar discipline. Though some complain that the term “practice of law” remains imprecise and unworkable, courts have found it to be suf26 Los Angeles Lawyer November 2004 ficiently certain to form the basis for a criminal prosecution.44 For persons who have never been licensed in California and are convicted of UPL, the statutes prescribe misdemeanor punishment of up to one year in a county jail, or a fine of up to $1,000, or both.45 A stiffer penalty may be applied for subsequent convictions. For licensed attorneys and formerly licensed attorneys (such as suspended or disbarred attorneys) the UPL statutes provide for felony punishment with the possibility of a state prison sentence.46 UPL-related offenses also carry the risk of sanctions for contempt of court. Each criminal penalty is cumulative with other criminal penalties and any other remedy provided by law.47 Nonattorney UPL offenders also have been charged with violations of Penal Code Sections 484 and 487, under a theory of theft by false pretenses. The Los Angeles County District Attorney’s Office aggressively prosecutes UPL cases, with District Attorney Steve Cooley stating that his office is “committed to combating this form of fraud.” While noting that “UPL occurs in all legal fields,” Cooley states that it is especially rampant in immigration matters, with unsuspecting immigrants falling prey to fraud by unscrupulous consultants.48 In the civil arena, attorneys who facilitate or assist nonattorneys in UPL can be sued for a variety of remedies, including a permanent injunction, damages, and sanctions for contempt. Through civil actions, violators of the UPL statutes can face penalties and damages outlined in the regulatory schemes governing paralegals, legal document assistants, bankruptcy petition preparers, and immigration consultants. In addition, defending against a civil suit for UPL can have profound implications for an attorney’s future practice. Violators of the Immigrant Consultant Act,49 including any attorney complicit in a violation, may be liable for civil penalties of up to $100,000 per violation in addition to actual damages, treble damages, and reasonable attorney’s fees and costs. Victims may also seek broad injunctive relief against the violators.50 Those who violate statutes regulating nonattorney legal document assistants, including complicit attorneys, may be liable for damages, restitution, injunctive relief, and attorney’s fees.51 The same relief is available for violations of statutes regulating paralegals.52 In addition, an attorney who uses a paralegal’s services may be liable for the paralegal’s negligence, misconduct, or other violation of the statutes governing the practice of law. UPL also may expose nonattorneys and attorneys to common law tort actions, such as fraud, intentional misrepresentation, neg- ligent misrepresentation, and the intentional infliction of emotional distress. Depending on the severity of the fraud charges, defendants may be liable for punitive and exemplary damages. An attorney working with a nonattorney assistant or partner also may face a separate malpractice claim for failure to properly handle a client’s case. An attorney who aids and abets a nonattorney in committing UPL may face claims based on unfair competition and false advertising laws. Anyone not properly authorized to practice law who promulgates or distributes information that has the “capacity to deceive” consumers into believing he or she is qualified to practice law is violating California’s false advertising law.53 The ban on false advertising applies to supervising attorneys who knowingly deceive the public into thinking that a nonattorney employee is properly authorized to handle a legal matter or that a case is being handled entirely by the attorney. Relief to clients harmed by the deception may include permanent injunctive relief, with both prohibitory and mandatory terms, and restitution for money or property taken as a result of false advertising.54 Similarly, injunctive relief and restitution can be awarded to a prevailing party bringing suit against a nonattorney or attorney guilty of UPL under California’s unfair competition law. Business and Professions Code Section 17200 was designed to prevent unfair competition through deceptive business practices, including false advertising. Absent a charge of false advertising, however, the broad forms of relief enumerated in Section 17200 can be sought if a business is found to have violated any statutory scheme designed to protect the public. Criminal violations of the UPL statutes55 also may result in liability under Section 17200, because UPL can be characterized as an intentionally deceptive business activity. When civil actions are brought by public enforcement agencies, such as county prosecutors or the State Attorney General’s Office, violators may be assessed civil penalties of up to $2,500 per violation. The civil penalties are cumulative and mandatory in an amount determined by the court once a violation is established. In all other civil actions, permanent injunctive relief is available as well as restitution for any money or property taken by means of the false and deceptive business practice. The State Bar lacks jurisdiction over persons never licensed to practice law or attorneys who have resigned or been disbarred. Nonetheless, in 2003 the State Bar received 262 UPL complaints regarding nonattorneys. Most of those cases were referred to the local district attorney’s office for prosecution. During this same period, 41 complaints were received regarding disbarred or resigned attorneys. Many of these also were referred to the local district attorney’s office. Violators who come within the purview of the State Bar discipline system are licensed attorneys and attorneys suspended from the practice of law. In 2003, the State Bar received 246 UPL complaints regarding suspended attorneys. These complaints constituted 20 percent of all complaints received via the State Bar intake line in 2003.56 The State Bar adheres to a comprehensive set of standards for disciplining attorneys that are published in the State Bar’s Rules of Procedure and Rules of Practice. Standard 2.6 provides for disbarment or suspension of an attorney for specified violations of the Business and Professions Code, with the punishment depending on the gravity of the harm. Standard 2.3 mandates suspension or disbarment if the offenses involve moral turpitude, fraud, dishonesty, or concealment, with the sanction depending upon the harm to the victim, the degree to which the victim was misled, the magnitude of the act of misconduct, and the degree to which it relates to the attorney’s practice of law. It is worth noting that when the State Bar’s disciplinary actions have been challenged in court, judges have not been reluctant to increase the severity of the administrative sanctions imposed by the State Bar.57 The credibility and effectiveness of our justice system depends on effective enforcement of UPL statutes, but there are mounting pressures to modify existing restrictions on the practice of law. For example, in a nod to the interstate realities of modern law practice, the California Supreme Court has approved new rules, effective this month, regarding out-ofstate lawyers practicing in California under limited circumstances. Also, recognizing the economic constraints that reduce accessibility to legal services for those with limited resources, attorneys are now able to unbundle legal services in an effort to compete with do-it-yourself clinics. Efforts to regulate a profession that requires consistency and flexibility reflect the evolving demands on lawyers. All licensed practitioners should be aware of what constitutes UPL to avoid inadvertent violations and to preserve the rigorous standards of the legal profession. Awareness protects the attorney, the consumer, and—perhaps most important of all—the integrity of a system that provides access to justice. One court noted that “[t]he right to practice law not only presupposes in its possessor integrity, legal standing and attainment, but also the exercise of a special privilege, highly personal and partaking of the nature of a public trust.”58 It behooves every licensed prac- “Mr. Truck” ACCIDENT INVESTIGATION and RECONSTRUCTION ✔ Court Qualified Expert Witness Regarding Car vs Car, Car vs Bicycle, Truck vs Car Cases ✔ Low Speed Accident Analysis ✔ Trucking Industry Safety and Driver Training Issues ✔ Power Point Court Presentations William M. Jones 800 337 4994 P. O. Box 398 925 625 4994 Brentwood CA 94513-0398 Pager 510 840 4627 [email protected] www.mrtruckar.com Fax 925 625 4995 Quo Jure Corporation 1-800-843-0660 www.quojure.com [email protected] LAWYERS’ WRITING & RESEARCH When you can’t do it yourself, but you still need a brief or memo done—and done well, by experienced attorneys who are skilled writers—turn to Quo Jure Corporation. Quo Jure provides premium legal writing and research services to practicing attorneys. Our work has contributed to milliondollar settlements and judgments. Oppositions to motions for summary judgment are our specialty. Call for a free analysis and estimate. The Winning EdgeTM Structured Settlements Bridging the gap between “demand” and “offer” to reach a resolution. • Product/General/Auto Liability • Workers’ Compensation Angel N. Viera, CSSC • Wrongful death (Bilingual) • Medical Malpractice CA Lic. 0D20706 • Minors’ Compromise • Employment/Discrimination, Other BRIDGE SETTLEMENT INSURANCE AGENCY Call Toll Free 1-877-5-SETTLE • www.StructuredSettlements.com Los Angeles Lawyer November 2004 27 titioner to adhere to these ideals and guard against UPL in all its forms. ■ 1 Shaw v. State Bar of Cal., 212 Cal. 5 (1931). Smallberg v. State Bar of Cal., 212 Cal. 113 (1931). 3 Dudney v. State Bar of Cal., 8 Cal. 2d 555 (1937). 4 BUS. & PROF. CODE §6125. 5 People v. Merchants Protective Corp, 189 Cal. 531, 535 (1922); see also Baron v. City of Los Angeles, 2 Cal. 3d 535, 542 (1970); Bluestein v. City of Los Angeles, 13 Cal. 3d 162, 173-74 (1970); People v. Landlords Prof’l Servs., 215 Cal. App. 3d 1599, 160408 (1989). 6 Russell Donaldson, Disciplinary Action against Attorney for Aiding or Assisting Another Person in Unauthorized Practice of Law, 41 A.L.R. 4th 361 (1985). 2 7 Ridley v. State Bar of Cal., 6 Cal. 3d 551 (1972) (attorney disbarred for misconduct, including UPL by employee left in charge of attorney’s office during attorney’s absence); In the Matter of Steele, 3 Cal. State Bar Ct. Rptr. 708 (1997) (State Bar opinion; disbarment for failure to supervise and for fee splitting). 8 Steele, 3 Cal. State Bar Ct. Rptr. 708. 9 Id. 10 Juliet Kaz, Legal Document Services: Dangerous Alternatives to Attorneys?, 2 J. LEGAL ADVOC. & PRAC. 122 (2000); In the Matter of Valinoti, 4 Cal. State Bar Ct. Rptr. 498 (2002). 11 Valinoti, 4 Cal. State Bar Ct. Rptr. 498. 12 Id. 13 Crawford v. State Bar, 54 Cal. 2d 659 (1960). 14 Id. at 665. 15 Id. at 665-66. 16 Id. at 666. Business Resolution’s Best RICHARD M. COLEMAN, ESQ. HON. ARNOLD H. GOLD HON. EDWARD Y. KAKITA HON. DION G. MORROW HON. HARVEY A. SCHNEIDER HON. ERIC E. YOUNGER ARC's Complex Business Litigation Panel Also Includes: Hon. Herbert L. Ashby Hon. Michael Berg Hon. William E. Burby Hon. Eli Chernow Hon. Robert Feinerman Mark Fleischer, Esq. Hon. Marilyn L. Hoffman Hon. Bruce J. Sottile Hon. Burton S. Katz Hon. Leonard S. Wolf Hon. Campbell Lucas Hon. Arleigh Maddox Woods Hon. Irwin J. Nebron Hon. Jack Newman Hon. Robert W. Parkin Hon. Robert Roberson, Jr. Hon. Irving Shimer 310-312-6002 800-347-4512 www.arc4adr.com Amy Newman, President 28 Los Angeles Lawyer November 2004 17 BUS. & PROF. CODE §6126(a). BUS. & PROF. CODE §6126(b). 19 Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119, 129 (1998). 20 State Bar of Cal. v. Superior Court, 202 Cal. 323, 331 (1929); In re McKenna, 16 Cal. 2d 610, 611 (1940), cited in Baron v. City of Los Angeles, 2 Cal. 3d 535, 540 (1970) (State Bar Act preempts the regulation of attorneys only insofar as the regulation involves the practice of law within the meaning of the act.). 21 Bluestein v. City of Los Angeles, 13 Cal. 3d 162 (1970). 22 Id. at 171. 23 Farnham v. State Bar of Cal., 17 Cal. 3d 605 (1976). 24 Id. at 612. 25 Agran v. Shapiro, 127 Cal. App. 2d Supp. 807 (1954); People v. Merchants Protective Corp, 189 Cal. 531 (1922); Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). 26 Merchants Protective Corp, 189 Cal. 531; Birbower, 17 Cal. 4th 119 (New York firm committed UPL by giving advice pertaining to California law and performing other legal services for a California company.). 27 Agran, 127 Cal. App. 2d Supp. 807. 28 Id. at 809. 29 Id. at 818 (emphasis added). 30 Id. at 818. 31 In re McKelvey, 82 Cal App. 426, 429 (1927). 32 Crawford v. State Bar, 54 Cal. 2d 659, 669 (1960). 33 Bluestein v. City of Los Angeles, 13 Cal. 3d 162, 17374 (1970). 34 Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119, 130 (1998). 35 CALIFORNIA COMMISSION ON ACCESS TO JUSTICE, THE PATH TO EQUAL JUSTICE 3-6 (Oct. 2002). 36 People v. Landlords Prof’l Servs., 215 Cal. App. 3d 1599 (1989). 37 P.J. Huffstutter, Automat of Legal Services on the Defensive, L.A. TIMES, Feb. 15, 2004. 38 Landlords Prof’l Servs., 215 Cal. App. 3d 1599. 39 In re Carlos, 227 B.R. 535 (Bankr. C.D. Cal. 1998). 40 People v. Merchants Protective Corp, 189 Cal. 531 (1922); Birbower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998). 41 Kaz, supra note 10, at 125. 42 In re Anderson, 79 B.R. 482 (1987) (Client assistance by a paralegal required legal judgment generally beyond the capacity of a nonattorney.). See also Landlords Prof’l Servs., 215 Cal. App. 3d 1599 (Self-help service committed UPL by generating individualized forms and advising some clients on which forms to prepare.); People v. Fremont Life Ins. Co., 104 Cal. App. 4th 508 (Preparation of wills, trusts, and other legal instruments by annuity sales representatives constituted UPL.). 43 11 U.S.C. §110. 44 People v. Ring, 26 Cal. App. 2d Supp. 768 (1937). 45 BUS. & PROF. CODE §6126(a). 46 BUS. & PROF. CODE §6126(b). 47 BUS. & PROF. CODE §6126. 48 LOS ANGELES COUNTY OFFICE OF DISTRICT ATTORNEY, U NAUTHORIZED P RACTICE OF L AW M ANUAL FOR PROSECUTORS 2 (Feb. 2004). 49 BUS. & PROF. CODE §§22440-22448. 50 BUS. & PROF. CODE §22445. 51 BUS. & PROF. CODE §§6400 et seq. 52 BUS. & PROF. CODE §6452(b). 53 BUS. & PROF. CODE §17500. 54 Id. 55 BUS. & PROF. CODE §§6125, 6126. 56 Telephone interview with Djinna Gochis, General Counsel, State Bar of California (June 15, 2004). 57 In re Morse, 11 Cal. 4th 184 (1995). 58 McGregor v. State Bar, 24 Cal. 2d 283, 288 (1944) (citing Townsend v. State Bar, 210 Cal. 362, 364 (1930)). 18 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 31. by JUDITH ILENE BLOOM COMPROMISES Although Section 998 is designed to encourage settlements, certain court decisions have actually served to discourage them CASES SETTLE IN A VARIETY OF WAYS. Some cases settle after a few telephone calls between opposing counsel. Others need a settlement officer to pound the table and drag a settlement out of the parties. It is not uncommon for cases to settle when a courtroom suddenly becomes available for trial. And in some cases, parties rely on the carrot or the stick (or both) contained in Code of Civil Procedure Section 998 to develop a settlement. Under Section 998, a party can offer to have judgment entered under specific terms and conditions. If the adverse party accepts, then the case is settled, and judgment is entered with no requirement for court approval. If the adverse party does not accept, goes to trial, and is victorious but wins less than the proposed settlement, the party is not awarded postoffer costs even though the party is the prevailing party—and the party making the offer may recover postoffer costs. The benefits and drawbacks of the Section 998 process are seemingly straightforward, but the risks for both parties are more dangerous than they may appear at first glance. Indeed, Section 998 is not just a way to settle a case. It is a trap for the merely careful.1 Section 998 contains gaps and ambiguities. Courts have exercised considerable discretion regarding some aspects of Section 998 and in doing so have rewritten the statute. They also have declined to act in other areas implicated by the statute. The effect of the judicial interpretations is to discourage settlements, even though Section 998 is designed to encourage them. The conventional wisdom is that either party has a motive to make a Section 998 offer or demand because of the possibility of shifting postoffer costs. That seems a weak reason Judith Ilene Bloom is a member of Clark & Trevithick in Los Angeles, where she specializes in commercial and bankruptcy litigation. She represented National Bank of California in Premium Commercial Services Corporation v. National Bank of California but was not involved with drafting, reviewing, or signing the Section 998 offer in that case. Los Angeles Lawyer November 2004 29 in most cases, however, because recoverable costs usually are not economically significant. Unless there are numerous postoffer depositions or extensive use of high-tech computer presentations at trial, it is difficult to incur a big bill for costs. A plaintiff whose offer is rejected and who does better at trial may also, in the court’s discretion, recover expert witness fees, which are ordinarily not a recoverable cost.2 But since expert witness fees are not automatically awarded, it is hard to rely on the possibility of recovering those fees when analyzing whether or not to make or accept a settlement offer. Of course, a settlement by definition leads to savings because it renders unnecessary the expenditure of considerable costs, including attorney’s fees. However, this savings is included in the calculation of a reasonable settlement offer and is not unique to the use of a Section 998 procedure. Although Section 998 does not offer a big tasty carrot or a big sharp stick, most attorneys ascribe an unwarranted importance to making or receiving a Section 998 offer, even though the often insignificant benefits of a Section 998 offer can be outweighed by its serious risks. Unlike most other pleadings or discovery, for example, there is little opportunity to correct an error in a Section 998 offer or acceptance. Code of Civil Procedure Section 473 can be used to ameliorate the devastating effect of a default judgment, and provisions exist to correct erroneous discovery responses,3 but there is no established way to correct an error in a Section 998 offer or acceptance. An offer that is made too early or that is too low may, even if it is an accurate forecast of the result at trial, not give the party making the offer the benefits of Section 998. It may even cause the parties to incur additional costs to litigate the underlying good faith of the offer. Clearly, numerous opportunities abound for parties using Section 998 to err and lose money. Moreover, courts have increased the risks of making Section 998 offers. The offering party must calculate an offer that will create an incentive to settle. For a defendant, the offer must be high enough to include all the elements of a plaintiff’s expected recovery so that the cost-shifting mechanism will actually work.4 This means that, unlike calculating a settlement offer for a settlement conference or mediation, the calculation must include estimated preoffer costs (including attorney’s fees if applicable) and interest. Section 998 does not refer to its procedures as an offer of settlement but instead as an “offer…to allow judgment to be taken….” The statute does not recognize that a Section 998 settlement is unlike any other settlement, which is a product of compromise and good 30 Los Angeles Lawyer November 2004 faith bargaining. A settlement pursuant to Section 998 is instead an offer (if made by the defendant) to be the losing party.5 Thus the courts are not encouraged to use their discretion to enforce the actual bargain the parties intended but may have misstated. The most dangerous risk to a defendant who wants to settle using Section 998 is failing to prepare an offer that addresses liability for additional costs. Defendants who use the standard form and offer to allow judgment to be entered for a stated sum accept that they are the losing party and liable not only for costs but also for attorney’s fees if the complaint is based on a statute or contract with an attorney’s fees clause.6 A defendant trying to settle a case arising from a contract with an attorney’s fees clause must make sure the offered sum includes all damages, claims, costs, expenses, fees, and interest. Further, the offer should state that “each party shall bear its own costs and attorney fees and expenses,” or it should specifically limit attorney’s fees or costs.7 Limited Relief for Mistakes The risk that a defendant offering to settle will find itself liable for the amount of the offer plus costs and attorney’s fees is by now so well documented that no one can be ignorant of it. Rappenecker v. Sea-Land Services Inc.8 established the liability of a settling defendant for court costs when the terms of the Section 998 offer were silent as to those costs. Lanyi v. Goldblum9 alerted defendants offering to settle for a stated sum that they will be liable for costs and attorney’s fees as well. Ever since Lanyi, which was decided 18 years ago, courts have held, more often than not, that trial courts lacked authority even to consider a motion for relief under Code of Civil Procedure Section 473 from a poorly drafted Section 998 offer that contained inadvertent flaws. Pazderka v. Caballeros Dimas Alang, Inc.10 held that a motion for reconsideration11 as well as a motion for relief12 are beyond the trial court’s discretion. The plainly stated rationale of the court was the protection of 998-type settlements13 and the avoidance of “spawn[ing] separate, time-consuming litigation.”14 Similarly, in Premium Commercial Services Corporation v. National Bank of California,15 an appellate court reversed the trial court’s granting of relief when the Section 998 offer inadvertently omitted the “each party to bear its own costs and attorney fees” limitation customarily used by defense counsel. This was not deemed the type of mistake for which Section 473 provides relief from a Section 998 offer.16 The California Supreme Court, however, has acknowledged that a motion for relief under Section 473 is appropriate when the error in a Section 998 offer or acceptance is a clerical one—the type of error for which Section 473 does provide a remedy. In Zamora v. Clayborn Contracting Group, Inc.,17 the plaintiff sent a Section 998 offer dictated by counsel and then mistyped by an assistant to provide for a judgment “taken against himself and for defendant Clayborn” rather than for a judgment in the plaintiff’s favor. (Counsel in Premium had not reviewed the erroneous written offer before serving it and did not realize the error until after the defendant had filed its notice of acceptance.) Plaintiff Zamora then moved to set aside the judgment. The court first dispelled the theory that a 998-based judgment is never reviewable under Section 473, citing Palace Hardware Company v. Smith18 and other cases.19 The court then proceeded to determine if the trial court had properly exercised its discretion by granting relief under Section 473. The standard was whether “‘a reasonably prudent person under the same or similar circumstances’ might have made the same error.’”20 The typographical error, substituting “against” for “in favor of,” was the kind of error anyone could make, the court reasoned, which was distinguishable from the errors in Pazderka and Premium. The supreme court, however, carefully avoided stating that Pazderka or Premium had been properly decided.21 Further, the court emphasized that the policy favoring settlements is not impaired by a rule that a settlement on terms not authorized by the parties is not a settlement that public policy requires to be enforced.22 Of course, these cases do not completely answer the question of how to resolve errors in a Section 998 offer or acceptance. An error that easily meets anyone’s definition of a typo can probably be relieved under Section 473. This might include mistakenly adding a digit to the actual amount to be paid in settlement of a case—for example, changing $67,150 to an unintended $671,150. What if the address of the recipient of the offer or the acceptance is mistyped, and thus the offer or acceptance is not timely received? What if the offer or acceptance is miscalendared or misfiled? What if a word is left out of an offer so that it reads “$300,000 against defendant and attorney fees and costs,” with the word “no” inadvertently omitted before the words “attorney fees and costs”? What if the entire phrase “no attorney fees and costs” is omitted? What is the distinction between a clerical typo and an attorney’s failure to review documents before they are served? The Zamora court hinted at this issue but did not resolve it, and the similar circumstances of Premium and Zamora led to dramatically different results. The effect of ordinary contract law also is still unclear. The cases dutifully recite the MCLE Test No. 131 The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. 1. For a settlement to be enforceable under Code of Civil Procedure Section 998, it must be approved by the court. True. False. 2. If a defendant serves a proper Section 998 offer that the plaintiff rejects and at trial the plaintiff is awarded less than the amount of the offer, the plaintiff does not recover the costs that it otherwise would have recovered as the prevailing party, and the defendant instead is awarded all its costs. True. False. 3. A defendant in a civil case whose Section 998 offer was rejected may be awarded its expert witness fees, which are ordinarily not recoverable, if the plaintiff recovers less than the amount offered. True. False. 4. Pursuant to the language of Section 998, a party making an offer is offering to allow judgment to be entered and is not offering to compromise. True. False. 5. A defendant making a Section 998 offer must offer to allow judgment to be entered against it and is not permitted to offer to accept a dismissal. True. False. 6. A defendant making an offer for a judgment in a stated amount to be entered against it under Section 998 is offering to be the losing party. True. False. 7. If counsel makes an error in a Section 998 offer that omits any limitation on a settling party’s liability for costs or attorney’s fees, and the error was due to counsel’s lack of awareness of the case law addressing this issue, courts generally will not grant relief under Code of Civil Procedure Section 473. True. False. 8. Section 473 ordinarily does not provide relief for clerical errors made by attorneys or their staffs in preparing Section 998 offers. True. False. 9. The standard applied by a court hearing a motion for relief under Section 473 for a drafting error in a Section 998 offer is whether an attorney skilled in litigation would have made that same error. True. False. 10. In making a motion for relief under Section 473 for an error in a Section 998 offer, attorneys can and should check published case law for well-established and welldefined standards to determine if the error for which they are seeking relief is the type of error for which relief may be granted. True. False. 11. The California Supreme Court in Zamora v. Clayborn Contracting Group, Inc. stated that two court of appeal decisions—Premium Commercial Services Corporation v. National Bank of California and Pazderka v. Caballeros Dimas Alang, Inc.—were wrongfully decided. True. False. 12. Under Zamora, the supreme court established that an attorney can never obtain relief under Section 473 if the attorney delegates the drafting of a Section 998 offer to a nonattorney staff member and does not review the work before it is served. True. False. 13. In Zamora, evidence was admitted to show that the offeree knew that the Section 998 offer was a mistake. True. False. 14. One way for a defendant to avoid making an error in a Section 998 offer that renders the defendant liable for costs or attorney’s fees is to frame the Section 998 offer as an offer to accept a dismissal. True. False. 15. If a case is dismissed, no attorney’s fees may be awarded under Civil Code Section 1717. True. False. 16. Courts have discretion to determine if a Section 998 offer was made in good faith when awarding any costs under Code of Civil Procedure Section 1033.5 to a party whose Section 998 offer was rejected. True. False. 17. The court of appeal in Elrod v. Oregon Cummins Diesel, Inc. established a two-part test to determine the good faith of a Section 998 settlement offer. True. False. 18. It is well-established that a defendant who makes a very low Section 998 offer early in the case has made the offer in bad faith and is not entitled to the benefits of Section 998. True. False. 19. A defendant who seeks to make an early and low Section 998 offer can show good faith by providing a letter to plaintiff’s counsel explaining how the facts of the case—including facts previously unknown to the plaintiff—and applicable law support a conclusion that the case against the defendant has no merit. True. False. 20. The two-part test for determining the good faith of a Section 998 offer is 1) whether the offer is a reasonable prediction of the results at trial (reduced to the present value) and 2) whether the party receiving the offer reasonably knew or should have known the underlying facts. True. False. MCLE Answer Sheet #131 BAD COMPROMISES Name Law Firm/Organization Address City State/Zip E-mail Phone State Bar # INSTRUCTIONS FOR OBTAINING MCLE CREDITS 1. Study the MCLE article in this issue. 2. Answer the test questions opposite by marking the appropriate boxes below. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced. 3. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to: Los Angeles Lawyer MCLE Test P.O. Box 55020 Los Angeles, CA 90055 Make checks payable to Los Angeles Lawyer. 4. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the MCLE credit you earned through this self-assessment activity. 5. For future reference, please retain the MCLE test materials returned to you. ANSWERS Mark your answers to the test by checking the appropriate boxes below. Each question has only one answer. 1. ■ True ■ False 2. ■ True ■ False 3. ■ True ■ False 4. ■ True ■ False 5. ■ True ■ False 6. ■ True ■ False 7. ■ True ■ False 8. ■ True ■ False 9. ■ True ■ False 10. ■ True ■ False 11. ■ True ■ False 12. ■ True ■ False 13. ■ True ■ False 14. ■ True ■ False 15. ■ True ■ False 16. ■ True ■ False 17. ■ True ■ False 18. ■ True ■ False 19. ■ True ■ False 20. ■ True ■ False Los Angeles Lawyer November 2004 31 principle that the rules of contract interpretation apply to a Section 998 offer.23 However, there is no opportunity for the court to use such rules.24 The rules of contract interpretation will be applied only if they “neither conflict with the statute nor defeat its purpose.”25 In Zamora, the court gave a clear signal that evidence regarding the intent of the parties, as known to each other, remains relevant. The court described the evidence that showed that Clayborn knew the Section 998 offer was a mistake but tried to take unfair in good faith, although that language appears nowhere in the statute. This is an area in which the courts have rewritten the statute in a way that can only discourage settlements, especially early settlements.32 The good faith requirement was first discussed in 1980 in Pineda v. Los Angeles Turf Club, Inc.,33 in which the family of a jockey killed in a race sued the race track and the manufacturer of the helmet he wore. A month before trial the manufacturer offered to settle for $2,500 pursuant to Section 998. The award. The court stated: [A] good faith requirement must be read into section 998. In other words, the pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. Normally, therefore, a token or nominal offer will not satisfy this good faith requirement, particularly where, as here, there is no cross-complaint.38 After making its pronouncement, the court A defendant should try to frame a Section 998 offer as an offer to accept a dismissal. This prevents the imposition of costs and attorney’s fees since the plaintiff will not be the prevailing party. advantage of it.26 Thus there was sufficient evidence of mistake.27 Even with the consolation provided by this opinion, there remains a risk that the error at issue will turn out to be the type of error for which Section 473 relief is unavailable. That will only be determined after a timely motion is made and decided. In determining how it will rule on a motion for Section 473 relief, a court necessarily will have to consider the subjective intent of the parties—including, perhaps, their subjective analysis of the settlement value of the case— and other inadmissible settlement communications.28 Since there is no reason to be confident that Section 473 will be available to grant relief for ministerial errors, the best course is to take every possible precaution to prevent them. Counsel should read a Section 998 offer or acceptance before it is served, and then read it again. Next, counsel should have someone else in the office read it—and then have another someone else read it! Finally, a defendant should try to frame a Section 998 settlement offer as an offer to accept a dismissal.29 This prevents the imposition of costs and attorney’s fees since the plaintiff will not be the prevailing party.30 The Good Faith Requirement Before awarding discretionary costs31 to a party entitled to request them under Section 998, the court has authority to determine whether or not a Section 998 offer was made 32 Los Angeles Lawyer November 2004 offer was rejected, and at trial judgment was entered in favor of the manufacturer. The victorious defendant filed a motion for expert witness fees, but the motion was denied. On appeal the court held that the trial court “had ample reason” to conclude that the offer was not reasonable, because the defendant “had no expectation that its offer would be accepted.”34 Based on that ground and nothing else, the appellate court reasoned “that the sole purpose of the offer was to make Defendant eligible for the recovery of large expert witness fees at no real risk.”35 The court declined to find that the offer was not in good faith but did conclude it was not “realistic” and affirmed the denial of expert witness fees. 36 The court did not explain its basis for determining that an offer must meet a test of good faith or “realism” or that the party offering to settle had to take a demonstrable risk by doing so. The following year, however, in Wear v. Calderon,37 the court of appeal formally and specifically imposed a good faith requirement for Section 998 offers—a requirement that the legislature had not included in the statute. In Wear, which arose from a car accident, one defendant offered to settle for $1 pursuant to Section 998, but the plaintiff rejected the offer. The plaintiff recovered from the other defendants but was awarded nothing against the defendant who had made the Section 998 offer. The defendant sought and received an award of her expert witness fees, and the appellate court reversed the substituted its judgment for the trial court’s and concluded that there was no good faith accompanying the settlement offer. The language and holding in Wear are what later cases have cited and recited to discuss the good faith requirement.39 Post-Wear appellate courts, however, have not shown as much willingness to interfere with a good faith determination by a lower court. In Culbertson v. R. D. Werner Co., Inc.,40 the court made obeisance to Wear and Pineda but explained why a plaintiff who rejected a low settlement offer and lost at trial should not be able to complain about paying costs, including expert witness fees: Reduced to its simplest terms, the essence of plaintiff’s argument is that the filing of a complaint for damages, no matter how unmeritorious the claim might be, imposes upon a defendant, no matter how meritorious its defense may be, an obligation to reward the plaintiff by making an offer of settlement which would liquidate any outstanding liens, pay plaintiff’s attorney’s fees and costs and yield some significant sum to the plaintiff, or lose the benefits of section 998. That, of course, is diametrically opposed to the clear language and intent of section 998. Such a strained interpretation of the statute and the cases would result in an increase of spurious lawsuits and a reduction in the number of settlements.41 How true. The only effect of this grafted good faith element is to burden the trial court with a challenge to an award of expert witness fees (and attorney’s fees for cases filed in Riverside County) or interest in a personal injury case, when the whole objective of the Section 998 procedure is to settle cases and avoid litigation. The court explained that, for defendants faced with what they perceive to be a meritless action, making a low offer is consistent with the goals of Section 998. When the offer is rejected, hiring experts to help with the defense of the case also is consistent with the statute.42 In Elrod v. Oregon Cummins Diesel, Inc.,43 a case brought by the driver of a logging truck who became a paraplegic after an accident, the court disallowed requested expert witness fees for one defendant. This defendant had made an offer of $15,001 before the other two defendants settled. The two defendants paid $500,000 that would be offset from any jury verdict against the remaining defendant. Workers’ compensation awards were also to be deducted from any verdict. The damages awarded were less than the $500,000 offset, and the plaintiff was awarded nothing against the defendant who had offered $15,001 to settle. The court established a two-part test to determine the good faith of a Section 998 offer. First, the reasonableness of the offer “is measured…by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant.”44 The court noted that the test does not require an accurate prediction; instead, the prediction of an experienced attorney or judge will be sufficient evidence to determine reasonableness.45 Once the offer is deemed to be reasonable under the first part of the test, then the second part of the test is implicated. This part questions whether the information the defendant had was known, or reasonably should have been known, by the plaintiff. The answer shows whether the offeree had the information necessary to gauge the reasonableness of the offer.46 This two-part test suggests that a defendant intending to make an early or low offer should include with the offer a written explanation of the basis for the offer. This may require the defendant to disclose explosive evidence not yet known to the plaintiff.47 Of course, if this evidence is disclosed but the plaintiff does not appreciate its impact, the objective standard enunciated in Elrod has still been met. In Colbaugh v. Hartline,48 the series of demand letters written by the successful defendant were admitted to show that the plaintiff knew why the defendant believed there was no liability, and thus the plaintiff should not have been surprised by the nonsuit. The trial court however, failed to follow the two-part test and did not decide to award attorney’s fees under Code of Civil Procedure Section 1021.1.49 The case was remanded for the trial court to exercise its discretion— presumably to award the attorney’s fees— under the two-part test. In Nelson v. Anderson,50 a principal of a corporation formed to market products through an infomercial sued the other principal and the attorneys for the enterprise. The law firm made a Section 998 offer of $5,000, with each party to bear its own costs and attorney’s fees. The plaintiff rejected the offer and, at trial, the law firm was awarded a nonsuit. The trial court taxed all costs claimed by the law firm, reasoning that the offer was a “token” and thus not reasonable or propounded in good faith. This case applied the good faith test not just to expert witness fees or attorney’s fees—with both available only in the court’s discretion—but to all costs as well. Without explaining how or under what theory the court had discretion to refuse to award the postoffer costs specified in Section 998, the court simply applied the two-part test of Elrod. The court found that the law firm had met the first part of the test because $5,000 was within the range of expected recovery due to defects in the pleading, but the court also found that there was no evidence regarding the second part of the test, and thus the law firm had failed to meet its burden. Incorrect Analysis The reason this good faith analysis is a mistake is that it forces the court to examine the subjective motives, knowledge, and intent of parties who make or reject settlement offers. Courts ordinarily eschew such examinations, for good reason. In examining the good faith or realism of a low and unsuccessful settlement offer, the court permits the parties to introduce statements made by settlement judges,51 notwithstanding the lack of competence of the judges to so testify.52 Apparently it is now permissible to introduce these otherwise inadmissible statements through the hearsay declarations of counsel. Of course, in settlement conferences, judges often give their opinions to one side or the other and out of the hearing of the adverse party. Permitting reference to seemingly inadmissible statements is a bad idea. The statements by a settlement officer may be an exaggeration designed to encourage a settlement Los Angeles Lawyer November 2004 33 TRUST DEED FORECLOSURES “Industry Specialists For Over 15 Years” Professional Arbitrator and Mediator Witkin & Eisinger we specialize in the Non-Judicial of obligations secured by real property Aor trealForeclosure and personal property (mixed collateral). When your client needs a foreclosure done professionally and at the lowest possible cost, please call us at: 1-800-950-6522 We have always offered free advice to all attorneys. & WITKIN EISINGER, LLC Steven Richard Sauer, Esq. RICHARD G. WITKIN, ESQ. ✦ CAROLE EISINGER “He is truly a master in his art.” Marshall W. Taylor (Harvard University, BA 1965, JD 1974) MEDIATION OF CIVIL DISPUTES Offices convenient to San Gabriel Valley and Inland Empire 909.625.4785 Hourly fee: $350 Settled over 5,000 Federal and State Litigated Cases 323.933.6833 Fax 323.933.3184 E-mail [email protected] 4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010 and not the actual analysis of the value of the case. The assumption that an early53 or low offer is unrealistic or unfair and that the adverse party should not be obligated to consider it and provide a thoughtful response makes no sense. A defendant who believes that the case against it is without merit, behaves in a manner consistent with that belief, and makes an immediate low offer to the plaintiff should, if proven right at the end of trial, be accorded the same benefits as if the offer had been made at a later point in the process. The purpose of the statute is to encourage settlements, not just to encourage predictable settlements. A party who receives an early and low offer should not be excused from giving it every consideration.54 A law designed to encourage settlements should recognize this and not give parties a loophole through which to reject an early or low offer. No public policy is served by forcing the court to inquire into the reasons for the offer or the rejection. The legislature states that it wants to encourage settlements, and the courts proclaim the same goal. Section 998 should be interpreted and applied to promote settlements and not, by increasing risks and costs, to discourage them. To accomplish this, the legislature should: 1) Disapprove Pazderka and Premium. 2) Eliminate the good faith requirement. 3) Endorse Zamora and ease access to Section 473 motions for relief for clerical or ministerial errors in offers or acceptances. Until the legislature takes these actions, attorneys making or responding to Section 998 offers should remember that even clerical errors may not be relieved by a timely motion and that a low-ball offer may be construed as a bad faith effort rather than a true attempt to settle the case. Section 998 remains a trap that belies its purpose. ■ 1 "5),$).'42)!,3+),,302/'2!*ANUARYns,OYOLA,AW3CHOOLs,OS!NGELES#ALIFORNIA .)4!TRIALSKILLSPROGRAMSPROVIDEAHANDSONLEARNINGEXPERIENCEINAREALISTICSETTING ¾,EARNFROMTHEBESTTRIALLAWYERSJUDGESANDLAWPROFESSORS ¾'AINCONlDENCEANDSKILLSINALLAREASOFTRIALADVOCACY ¾!CTIVEPARTICIPATIONVIDEOTAPEDPERFORMANCESANDEMPOWERINGCRITIQUES ¾!NUNFORGETTABLEEXPERIENCE .)4!ESTIMATESTHISPROGRAMTOPROVIDE#,%CREDITHOURSOFWHICHHOURSWILL APPLYTOLEGALETHICS.)4!ISA3TATE"AROF#ALIFORNIA-#,%APPROVEDPROVIDER .ATIONAL)NSTITUTEFOR4RIAL!DVOCACYsWWWNITAORGs 34 Los Angeles Lawyer November 2004 This article is not a blueprint of all the requirements for a §998 offer. For a thorough discussion of how to make a successful offer or demand, see Frank E. Marchetti & Eric A. Schneider, Making Effective Use of Section 998 Offers to Compromise, LOS ANGELES LAWYER, Oct. 2002, at 22. 2 CODE CIV. PROC. §998(c)(1). See CODE CIV. PROC. §1033.5(b)(1) (barring recovery of expert witness fees in other circumstances). 3 See, e.g., CODE CIV. PROC. §§2031(m)(amending interrogatory answers), 2033(m) (amending answers to requests for admissions). 4 See text, infra. The party formulating an offer should try to anticipate what will be added to a basic recovery in order to determine what will truly induce a party to settle. 5 This is not unlike the provisions of Code of Civil Procedure §1025 permitting a defendant to deposit with the court the amount claimed by the plaintiff in order to avoid liability for costs. Taking this step is an admission of liability. 6 Lanyi v. Goldblum, 177 Cal. App. 3d 256 (1979). 7 See Elite Show Servs., Inc. v. Staffpro, Inc., 119 Cal. App. 4th 263 (2004). 8 Rappenecker v. Sea-Land Servs. Inc., 93 Cal. App. 3d 256 (1979). 9 Lanyi, 177 Cal. App. 3d 181. In this case, the litigation arose from a written agreement for the purchase of real property, and the agreement contained a broad attorney’s fees clause. The court distinguished a §998 judgment from a dismissal—and attorney’s fees are not available in the event of a dismissal. See International Indus., Inc. v. Olen, 21 Cal. 3d 218 (1978). 10 Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal. App. 4th 658 (1998). 11 CODE CIV. PROC. §1008. 12 CODE CIV. PROC. §437. 13 Pazderka, 62 Cal. App. 4th at 672. 14 Id. 15 Premium Commercial Servs. Corp. v. National Bank of Cal., 72 Cal. App. 4th 1493 (1999). 16 Id. at 1496. The defendant who made the settlement offer later lost the jury verdict but won its motion for judgment notwithstanding the verdict and its motion for a new trial. 17 Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249 (2002). 18 Palace Hardware Co. v. Smith, 134 Cal. 381 (1901). 19 See, e.g., Basinger v. Rogers & Wells, 220 Cal. App. 3d 16 (1990). 20 Zamora, 28 Cal. 4th at 258 (quoting Bettencourt v. Los Rios Community Coll. Dist., 42 Cal. 3d 270, 276 (1986) (italics added by Zamora court)). 21 Id. at 260 n.5. 22 Id. at 260. 23 Roden v. Bergen Brunswig Corp., 107 Cal. App. 4th 620, 624 (2003); Lanyi v. Goldblum, 177 Cal. App. 3d 181, 184 (1986). 24 Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal. App. 4th 658, 667 (1998). 25 T. M. Cobb Co. v. Superior Court, 36 Cal. 3d 273, 280 (1984), quoted in Pazderka, 62 Cal. App. 4th at 671. 26 This evidence showed that 1) Zamora’s complaint sought damages of over $140,000, 2) Zamora never offered to settle for less than $150,000, and the §998 offer was for almost the same amount, and 3) Clayborn knew Zamora was facing financial pressure. 27 Zamora, 28 Cal. 4th at 260. 28 EVID. CODE §1152. 29 Goodstein v. Bank of San Pedro, 27 Cal. App. 4th 899, 908 (1994). 30 CIV. CODE §1717(b)(2). See Santisas v. Goodin, 17 Cal. 4th 599 (1998) (no attorney’s fees awarded upon dismissal); Jue v. Palton, 35 Cal. App. 4th 456 (1995) (same). 31 These costs include expert witness fees under Code of Civil Procedure §998(c)(1) and (d), interest awarded under Civil Code §3291, and costs ordinarily in the court’s discretion, pursuant to Code of Civil Procedure §1033.5(a)(11), (c)(4). While §1033.5(c)(2) and (3) gives the court discretion regarding the amount of certain costs and their reasonable necessity, these elements appear to have nothing to do with the good faith requirement of the settlement offer—and the discretion provided at (c)(2) and (3) should not give the unsuccessful party that rejected a settlement another argument about the allocation of costs awarded under §1033.5(a). 32 When the legislature reenacted §998, courts presumed that it adopted and accepted the good faith requirement imposed by the court of appeal in Wear v. Calderon, 121 Cal. App. 3d 818 (1981). Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692, 696 (1987). 33 Pineda v. Los Angeles Turf Club, Inc., 112 Cal. App. 3d 53 (1980). 34 Id. at 63. 35 Id. It does not appear from the language of the appellate court opinion that the trial court believed that the sole reason for the manufacturer’s offer was to shift expert witness fees. Only the appellate court reached that conclusion regarding the offer. 37 Wear v. Calderon, 121 Cal. App. 3d 818 (1981). 38 Id. at 821. 39 Jones v. Dumrichob, 63 Cal. App. 4th 1258, 1262 (1998); Culbertson v. R.D. Werner Co., Inc., 190 Cal. App. 3d 704, 708-10 (1987). 40 Culbertson, 190 Cal. App. 3d 704. 41 Id. at 709-10. 42 Id. at 710-11. See Jones, 63 Cal. App. 4th 1258 (citing Wear and Pineda but distinguishing them to find that an offer by defendant to waive costs was made in good faith and had economic value). 43 Elrod v. Oregon Cummins Diesel, Inc., 195 Cal. App. 3d 692 (1987). 36 44 Id. at 699 (footnote omitted) (emphasis in original). Id. (citing Abbott Ford, Inc. v. Superior Court, 43 Cal. 3d 858, 874 (1987)). 46 Id. at 699. 47 Id. at 699-700. 48 Colbaugh v. Hartline, 29 Cal. App. 4th 1516 (1994). 49 The attorney’s fees provision was previously available in San Bernardino County as well as in Riverside County. 50 Nelson v. Anderson, 72 Cal. App. 4th 111 (1999). 51 Goodstein v. Bank of San Pedro, 27 Cal. App. 4th 899, 908 (1994) (statements of settlement judge introduced by declarations of counsel). 52 EVID. CODE §703.5. 53 This is a tactic used by those filing frivolous lawsuits under BUS. & PROF. CODE §17200. 54 See BUS. & PROF. CODE §6103.5 (permitting discovery of counsel’s transmittal of a written settlement offer to his or her client). 45 Los Angeles Lawyer November 2004 35 Erroneous federal district court decisions on California’s Consumer Credit Reporting Agencies Act need to be overruled faith and credit by Robert F. Brennan Among the states, California has a long tradition of being in the vanguard in passing laws that address new problems. In 1975, for example, the California Legislature passed the Consumer Credit Reporting Agencies Act (CCRAA),1 providing consumers with effective remedies for damage to credit reports caused by incorrect derogatory information. 36 Los Angeles Lawyer November 2004 In 1996, Congress addressed federal preemption in passing a series of amendments to the FCRA. These 1996 amendments were left intact when Congress again amended the FCRA in 2003. The 2003 amendments, known as the Fair and Accurate Credit Transactions Act (FACTA),4 resulted from lobbying by the credit and banking industries. They feared the prospect of state laws that imposed diverse regulations on the credit reporting industry and that were tougher than the federal law. FACTA was intended to overcome the sunset provisions of the FCRA that would have ended its federal preemption.5 It is important to note, however, that the FCRA as amended in 1996 contained a specific provision precluding federal preRobert F. Brennan is a principal of Brennan, Wiener & Simons in La Crescenta. He serves as the regional director for Southern California for the National Association of Consumer Advocates. KEN CORRAL Then, in 2001, California passed one of the nation’s first identity theft laws, the Identity Theft Victim’s Rights against Claimants Act, to address the growing menace of identity theft.2 Unquestionably among the best consumer protection statutes in the nation, these California laws are threatened by opinions holding that the federal Fair Credit Reporting Act (FCRA) preempts state law.3 A finding of preemption is an incorrect conclusion of law that is bad for California consumers. emption of the part of the CCRAA that governed the liability of those who furnish information to credit reporting bureaus.6 (Those who furnish information are called furnishers.) FACTA did not change this provision.7 Moreover, FACTA does not appear to restrict or preempt California’s identity theft law, although practitioners should prepare rebuttals for the inevitable argument that it does. In short, a careful reading of the applicable statutes clearly reveals that—certain court decisions notwithstanding—federal law should not preempt California’s identity theft laws or the furnisher liability provisions found in the CCRAA.8 The furnisher liability provisions of the California law are vital. Consumers face rampant inaccuracies in credit reports. According to one study of consumer credit reports: • 25 percent of credit reports surveyed contained serious errors, such as false delinquencies or accounts that did not belong to the consumer, that could result in the denial of credit. • 54 percent of the surveyed reports contained personal demographic information that was misspelled, outdated, belonged to a stranger, or was otherwise incorrect. • 22 percent of the surveyed reports listed the same mortgage or loan twice. • Almost 8 percent of the surveyed reports were missing major credit, loan, mortgage, or other consumer accounts that demonstrate the creditworthiness of the consumer. • 30 percent of the surveyed reports contained credit accounts that had been closed by the consumer but remained listed as open. • Altogether, 79 percent of the surveyed reports contained either serious errors or other mistakes of some kind.9 These statistics follow more than a decade of enforcement of the FCRA by the Federal Trade Commission and private attorneys. In other words, existing enforcement and private remedies under the FCRA have been shown to be insufficient to alleviate the problem of inaccuracies in credit reports. Remedies for Consumers California has two statutes to protect Californians from identity theft, false credit reporting, wrongful credit reporting, and improper access to credit information. The CCRAA10 addresses identity theft, credit report damage and abuse, and improper access to private credit report information. The more recent Identity Theft Victim’s Rights against Claimants law11 addresses identity theft. This California law offers remedies against furnishers but not against credit bureaus. At the federal level stand the FCRA12 and FACTA. The FCRA and the CCRAA contain an identical requirement that creditors and credit reporting agencies are obli38 Los Angeles Lawyer November 2004 gated to pursue maximum possible accuracy in credit reporting. There is a recent California case, Schoendorf v. U. D. Registry,13 that addresses this requirement. The plaintiff, Schoendorf, used the CCRAA to challenge information on one of her credit reports concerning a dispute she had successfully resolved with a landlord. The credit reporting agency, U. D. Registry,14 refused to correct its credit report, claiming in its defense that what it had reported about Schoendorf was consistent with existing public records (although Schoendorf provided U. D. Registry with ample evidence that its derogatory marks were inaccurate). U. D. Registry filed an antiSLAPP motion against the plaintiff, who appealed the adverse decision in trial court. The Second District sided decisively with Schoendorf and, quoting from an earlier decision, held that U. D. Registry “‘overlooks its broader obligations under the statutes as a credit reporting agency. Both [the] CCRAA and FCRA require “maximum possible” accuracy.…Certainly reports containing factually correct information that nonetheless mislead their readers are neither maximally accurate nor fair to the consumer.’”15 Schoendorf illustrates the difficulties that consumers face when they attempt to correct a derogatory item on their credit reports. Unfortunately, this is not the only problem confronting consumers. For example, consumers today are collectively carrying more debt on their credit cards than they ever have before. This development is made more worrisome by the result of a 1978 U.S. Supreme Court case, Marquette National Bank v. First Omaha Service Corporation.16 This decision allowed credit card companies to charge the highest interest rate permissible in the state in which the issuing bank is located—not the state where the cardholder lives. Many banks responded to this decision by moving their home offices to states such as South Dakota and Delaware, where there are no caps on the interest rates that banks may charge on credit card accounts. It may be argued, therefore, that if banks can exploit the differences among state laws, consumers should likewise be able to avail themselves of state laws that enhance their credit rights. Against Federal Preemption Additionally, there is a strong legal argument against the federal preemption of California’s CCRAA and Identity Theft Victim’s Rights against Claimants Act. Federal preemption occurs in two instances. First, it occurs when Congress expresses a clear intent to exert exclusive authority over a particular area of interstate commerce.17 Second, preemption occurs when state law interferes with or frustrates the operations of federal congressional enactments.18 In cases in which Congress has not expressed a clear intent to have exclusive authority over a particular area of interstate commerce, federal courts are obligated to weigh against preemption and may only find it in two instances: one, when compliance with both state and federal law is a “physical impossibility”;19 or two, when the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”20 Nowhere does the FCRA state a congressional intention to exert exclusive authority over credit reporting. On the contrary, the FCRA expressly leaves room for state law that is not inconsistent with the federal law.21 Thus, the FCRA contemplates that state laws affecting credit reporting will be enforced. The FCRA even includes two express exceptions to any presumed preemption of state law. Specifically, the federal law mentions Chapter 93 of the Massachusetts Annotated Laws and Section 1785.25(a) of the California Civil Code as not being preempted by that part of the federal law that addresses the responsibilities of those entities or persons who furnish credit information to consumer credit reporting agencies.22 The federal and California laws have consistently provided consumers with a right to sue credit bureaus (such as Experian or Transunion) for credit reporting abuse and government agencies with enforcement authority. Until 1993, however, there was no clear private right of action against furnishers. That year, the California Legislature amended Civil Code Section 1785.25 to impose specific requirements upon furnishers of “incomplete or inaccurate” derogatory credit information.23 The remedies for any violation of the CCRAA include actual damages, attorney’s fees, and punitive damages.24 This 1993 amendment left no question that the legislature intended to provide a private right of action to consumers against furnishers.25 Creditors and debt collectors quickly challenged the 1993 amendment, claiming that the federal law preempted the CCRAA. The issue came to the Second District in 1995 in Cisneros v. U. D. Registry, Inc.26 The court relied upon applicable commentary from the FTC on the federal law and firmly decided against preemption. Cisneros is still good law and has not been overturned or distinguished on the preemption issue by any other California court. However, it did not stop the efforts of credit companies and furnishers to obtain preemption of the CCRAA. In 1996 Congress struck a blow on behalf of consumers by amending the FCRA to provide a private remedy against furnishers for providing false or inaccurate credit information.27 Previously, a consumer could only seek recourse with the FTC. Even after this amendment, furnishers still argued that the FCRA provided only for FTC enforcement. In 2002, the Ninth Circuit firmly disagreed in Nelson v. Chase Manhattan Corporation.28 In Nelson, the plaintiff appealed the judgment of the district court dismissing his suit under the FCRA against the creditor-defendant, Chase. The corporation had furnished allegedly false or inaccurate credit information to the three major credit bureaus. The parties in Nelson did not dispute that the FCRA creates a private right of action against the credit bureaus; rather, the controversy concerned whether the FCRA created a private right of action against a furnisher. The Ninth Circuit reversed the decision of the district court and unequivocally held that the primary purpose of the FCRA is to provide a private remedy to injured consumers and to protect consumers against inaccurate and incomplete credit reporting. Furthermore, the court held that the federal law conferred a private right of action against furnishers and credit bureaus. The Ninth Circuit made clear that although Section 1681s-2(a) limits enforcement to governmental bodies, Section 1681s-2(b) was specifically enacted to confer a private right of action to consumers against furnishers.29 The court also held that it is not for a court to remake the balance Congress struck between the two subsections or to introduce limitations on an express right of action.30 create a private right of action.34 In essence, Lin holds that if Section 1785.25(a) offered a private remedy it would conflict with federal law. The Lin court, however, reaches this conclusion by ignoring 15 U.S.C. Section 1681s-2(b), which, under Nelson, expressly gives a private right of action to consumers wishing to bring an action against furnishers. Lin also neglects Cisneros, which found against preemption in 1995. Later amendments to the FCRA do not negate the reasoning of Cisneros, which is that no real conflict between state and federal law exists on this issue. While the FCRA and the CCRAA have been amended since Cisneros, the key decisional language of Cisneros—that state laws are preempted if inconsistent with the FCRA “and then only to the extent of the inconsistency”— remains the same. Moreover, with the passage of Section 1681s-2(b), which provides a private right of action against furnishers under the FCRA, the state and federal statutes have grown more, rather than less, consistent. Lin also ignores key language of 15 U.S.C. Section 1681t(b) exempting Section 1785.25(a) of the California Civil Code “as in effect on the date of enactment” of the CCRAA. The section was in effect on that date with reference to the remedies found at Section 1785.31. Particularly, it was never in effect as creating a law enforcement remedy only, as argued in Lin. Trying to pull Section 1785.25(a) away from Section 1785.31, which provides the remedies for violations, makes no sense whatsoever. The Lin court left Section 1785.25(a) floating in limbo, out of the reach of consumers, who are its intended beneficiaries. Lin and other cases, however, have contended that Section 1785.25(a) is not a statute without a remedy, because California law enforcement agencies could enforce it, and such enforcement is what Congress intended in exempting Section 1785.25(a) from preemption. But this whole-cloth creation of legislative intent is not found in the language of the federal law or congressional records. Furthermore, the CCRAA contains no mention of law enforcement use of Section 1785.25(a). To argue that Section 1785.25(a) gives a remedy only to law enforcement agencies renders other express provisions of the FCRA superfluous. In 1996, Congress specifically granted state attorneys general the power to enforce the FCRA. This enforcement power includes USC Section 1681s-2(a), which is essentially identical to Section 1785.25(a). In amending the FCRA, Congress did not intend to pass superfluous legislation.35 The argument that Congress intended Section Well-Settled Error The 1996 amendment to the FCRA that specifically exempts California Civil Code Section 1785.25(a) should have rendered preemption arguments nonexistent. After the amendment, however, federal district courts in California began citing a case decided in 1986, Pulver v. Avco Financial Services. It holds, in essence, that the CCRAA, as it existed in 1986, did not provide for a private right of action against furnishers.31 Simply put, to the extent that the 1993 amendments to the CCRAA expressly create a private right of action against furnishers, Pulver is no longer applicable law. Nevertheless, erroneous decisions granting federal preemption of the CCRAA remain well-settled error. For example, the U.S. District Court for the Northern District of California relied on Pulver in finding preemption of the CCRAA in Quigley v. Pennsylvania Higher Education Assistance Agency,32 an unpublished case involving a pro per plaintiff and a short opinion, among other things. The same court nevertheless heeded Quigley in Lin v. Universal Card Services Corporation. 33 Relying on Quigley, the court in Lin erroneously found preemption of the CCRAA on the basis that Section 1785.25 does not JACK TRIMARCO & ASSOCIATES POLYGRAPH/INVESTIGATIONS, INC. 9454 Wilshire Blvd. Sixth Floor Beverly Hills, CA 90212 (310) 247-2637 Jack Trimarco - President Former Polygraph Unit Chief Los Angeles F.B.I. (1990-1998) email: [email protected] www.jacktrimarco.com CA. P.I. # 20970 Member Society of Former Special Agents Federal Bureau of Investigation Former Polygraph Inspection Team Leader Office of Counter Intelligence U.S. Department of Energy Los Angeles Lawyer November 2004 39 CORPORATE LAW EXPERT WITNESS 34 Years Experience in the Boardroom • Member, Corporations Committee of the Business Law Section, State Bar of California • Author, Lecturer, Consultant • Editor of the Southern California Law Review Rogers, Sheffield campbell, llp B. Keith Martin, Esq. caltech bsee • usc jd 40 Los Angeles Lawyer November 2004 (805) 963-9721 [email protected] www.high-techlawyer.com 1785.25(a) for law enforcement use only compels this conclusion, however. Congress already gave the law enforcement powers of Section 1681s-2(a) to state attorneys general; there is no need for Congress to do so again by exempting California Civil Code Section 1785.25(a) from federal preemption only for law enforcement agencies and not for consumers. Another argument for private enforcement of the California law is that the federal remedies do not provide California consumers with adequate redress against false and inaccurate credit reporting. As noted previously, after more than a decade of enforcement of the federal law by the FTC and private attorneys, 79 percent of the credit reports checked in a recent survey contained errors. One reason that the federal law has not led to better credit report accuracy may be the circuitous route that a consumer must take for redress. The federal law provides for a private right of action only after the furnisher receives “notice…of a dispute with regard to the completeness or accuracy of any information provided by a person to a consumer reporting agency.…” In other words, under the FCRA, a consumer must first bring a dispute about false or inaccurate credit report information to the credit bureau. When the consumer disputes something on the report, the credit reporting agency then sends an automated dispute verification form to the furnisher. The furnisher then—supposedly—investigates the debt and reports to the agency with instructions to correct, delete, or keep the derogatory. If the credit derogatory is not corrected after the reinvestigation, then the consumer has a private right of action against the furnisher and the agency. False derogatory information may exist on a consumer’s credit report for months or years without being discovered. The consumer may suffer severe financial damage as a result, yet the furnisher and agency may escape liability merely by removing or correcting the derogatory information after the consumer notifies the agency. However, by then, the damage is often already done. Another problem with federal enforcement is that a consumer’s dispute does not trigger a duty to reinvestigate, and thus the potential for liability, unless it is directed at the credit reporting agency. If a consumer sends a letter to the furnisher only, no legal obligation to reinvestigate is triggered. It is logical, however, to dispute a false derogatory from Wells Fargo with Wells Fargo, not necessarily with Experian. Thus, consumers have disputed false derogatories sometimes for months or even years with the furnishers without triggering any legal duty to reinvestigate. The CCRAA does not require that con- sumers complain via a credit bureau to trigger their rights. Under the California law, if a furnisher furnishes false or derogatory credit information that damages the consumer, the furnisher faces liability. The CCRAA is not, however, a strict liability statute. Civil Code Section 1785.25(g) states that a person who “furnishes information to a consumer credit reporting agency is liable for failure to comply with this section, unless the furnisher establishes by a preponderance of the evidence that, at the time of the failure to comply with this section, the furnisher maintained reasonable procedures to comply with those provisions.” This provision provides a safe harbor for furnishers while requiring them to maintain reasonable procedures to avoid liability. Congress specifically excepted California from preemption in credit reporting law, so California clearly has the right to enact consumer protection laws that are more effective than their federal counterparts. The well-settled error of Lin and its predecessors needs to be brought to light, because it is depriving consumers of remedies that the state and federal governments intended to belong to California consumers. ■ INC. YOUR SOURCE FOR TRANSCRIPTION AND DEPOSITION SUMMARIES Areas of Specialty Include: • Legal Malpractice • Medical Malpractice • Trial and Hearing Transcripts • Workers’ Compensation • Personal Injury • Immigration Contact us at: ★ ONE CENT PER WORD FOR MOST TRANSCRIPTIONS [email protected] or 818.448.5592 www.law-scribe.com ATTN: Personal Injury & Workers’ Comp Attorneys • Auto Accident & Worker’s Comp Cases • On Site X-ray & Radiology Reports • Timely Quality Reports • Patient Status & Billing Updates • Convenient Location & Ample • Liens accepted • Acupuncture & Chiropractic Care Parking • Massage & Physical Therapy • M.D. & Orthopedic Surgeon available • Large Modern Health Center • On Site Neuro-diagnostic Tests • Open Evenings & Weekends Uptown Wellness Center (562) 789-1999 7354 Painter Avenue, Whittier, CA 90602 [At Mar Vista St.] Across from Courthouse in Uptown Whittier 1 The Consumer Credit Reporting Agencies Act, CIV. CODE §§1785.1 et seq. 2 The Identity Theft Victim’s Rights against Claimants Act, CIV. CODE §§1798.92 et seq. 3 The Federal Fair Credit Reporting Act, 15 U.S.C. §§1681 et seq. 4 The Fair and Accurate Credit Transactions Act, 15 U.S.C. §§1681 et seq. 5 See former 15 U.S.C. §1681t(d)(2). 6 15 U.S.C. §1681t(a)(1)(F)(ii). 7 Id. 8 CIV. CODE §1785.25(a). 9 NAT’L ASS’N OF STATE PIRGS, MISTAKES DO HAPPEN: A LOOK AT ERRORS IN CONSUMER CREDIT REPORTS (2004). 10 CIV. CODE §§1785.1 et seq. 11 CIV. CODE §§1798.92 et seq. 12 15 U.S.C. §§1681 et seq. 13 Schoendorf v. U.D. Registry, 97 Cal. App. 4th 227 (2002). 14 In addition to the familiar Big Three credit bureaus— Equifax, Experian, and Transunion—several smaller credit bureaus often cater to specific clients, such as landlords. 15 See Schoendorf, 97 Cal. App. 4th at 239 (quoting Cisneros v. U.D. Registry, Inc., 39 Cal. App. 4th 548, 579-80 (1995)). 16 Marquette Nat’l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540, 58 L. Ed. 2d 534 (1978). 17 See Goldstein v. Columbia Diamond Ring Co., 366 Mass. 835, 323 N.E. 2d 344 (1975). 18 See McDermott v. Wisconsin, 228 U.S. 115, 33 S. Ct. 431, 57 L. Ed. 754 (1913). 19 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143 (1963). 20 Hines v. Davidowitz, 312 U.S. 52, 67 (1941). 21 Except as provided in 15 U.S.C. §1681t(b) and (c), the “FCRA does not annul, alter, affect or exempt any person subject to the Act from complying with any state law with respect to the collection, distribution or use of any information on consumers, and then only www.uptown.topchiro.com Los Angeles Lawyer November 2004 41 TAX CONTROVERSIES IRS, FTB, SBOE, EDD ■ Return Preparation/Late Returns–Non-Filers ■ G. L. HOWARD, CPA 562 431-9844 x11 • [email protected] 10417 LOS ALAMITOS BOULEVARD, LOS ALAMITOS CALIFORNIA 90720 Conferences and Legal Programs uclaextension.edu/legalcourses Earn MCLE Credit Online Before the February 1st Compliance Deadline The February 1st MCLE Compliance deadline is rapidly approaching. UCLA Extension offers many short self-study online courses for MCLE credit. You read timely articles on cutting-edge legal issues and complete self-assessments at your own pace. Ethics, Elimination of Bias, and Substance Abuse for the Legal Professional (6 hours— the entire MCLE Special Requirement—$150) Selected Topics in Intellectual Property (4 hours—$100) Deposition Questioning Techniques and Strategies (4 hours—$100) Hate Crimes: An Empirical Analysis (4 hours, including 1for Elimination of Bias—$100) Contemporary Issues in Tax Practice and Procedure (3 hours—$75) Reel Lawyers: The Negative Portrayal of Attorneys in Film (6 hours, including 1for Ethics—$150) Reel Law Firms: The Unfavorable Treatment of Law Firms in the Movies (6 hours, including 1for Ethics—$150) Reel Lawyers: The Movie Lawyers’ Guide to Redemptive Legal Practice (2 hours, including 1for Ethics—$50) Sexual Orientation and the Law (6 hours, including 1for Elimination of Bias—$150) For more information and to enroll, visit uclaextension.edu /legalcourses, or call (310) 206-1409. 42 Los Angeles Lawyer November 2004 to the extent of the inconsistency.” 15 U.S.C. §1681t(a). 22 15 U.S.C. §1681t(b) states: [N]o requirement or prohibition may be imposed under the laws of any state…with respect to any subject matter regulated under…15 U.S.C. Section 1681s-2…relating to the responsibilities of persons who furnish information to consumer reporting agencies, except…with respect to section 54A(a) of Chapter 93 of the Massachusetts Annotated Laws…or…with respect to section 1785.25(a) of the California Civil Code (as in effect on September 30, 1996). 23 CIV. CODE §1785.25(a). 24 CIV. CODE §1785.31. 25 Civil Code §1785.25(a) has always provided for a private right of action and was never passed with any restriction preventing a private right of action. 26 Cisneros v. U.D. Registry, Inc., 39 Cal. App. 4th 548, 577-78 (1995): In enacting FCRA, Congress did not attempt to reserve to itself all efforts to regulate the consumer reporting business.…California is not foreclosed from enacting greater protections for consumers injured by the activities of reporting agencies.…The remedies afforded to injured consumers by CCRAA are not inconsistent with, but are in addition to, remedies provided by FCRA.…We find further support for this view in the FTC’s official commentary on the FCRA’s preemption provision. According to the FTC, “State law is pre-empted by the FCRA only when compliance with inconsistent State law would result in violation of the FCRA.” (citations omitted) See FTC Commentary, 55 Fed. Reg. 18804, 18808 (May 4, 1990); S. REP. NO. 91-517, 91st Cong., 1st Sess. 8 (Nov. 5, 1969); 15 U.S.C. §1681t; and 16 C.F.R. pt. 600, app., §622, ¶1 (1995). 27 See 15 U.S.C. §1681s-2(b). 28 Nelson v. Chase Manhattan Corp., 282 F. 3d 1057 (9th Cir. 2002). 29 Id. at 1060: It can be inferred…that Congress did not want furnishers of credit information exposed to suit by any and every consumer dissatisfied with the credit information furnished. Hence, Congress limited the enforcement of the duties imposed by §1681s-2(a) to governmental bodies. But Congress did provide a filtering mechanism in §1681s-2(b) by making the disputatious consumer notify a CRA and setting up the CRA to receive notice of the investigation by the furnisher.…With this filter in place…Congress put no limit on private enforcement.… 30 Id. 31 Pulver v. Avco Fin. Servs., 182 Cal. App. 3d 622 (1986). 32 Quigley v. Pennsylvania Higher Educ. Assistance Agency, 2000 U.S. Dist. LEXIS 19847 (2000) (unpublished). 33 Lin v. Universal Card Servs. Corp., 238 F. Supp. 2d 1147 (N.D. Cal. 2002). 34 See Quigley, 2000 WL 1196161, 2000 U.S. Dist. LEXIS 19847, at *8; Lin, 238 F. Supp. 2d at 1152-53. 35 See Nelson v. Chase Manhattan Mortgage Co., 282 F. 3d 1057, 1060 (2002) (“We cannot suppose that Congress made an amendment without a purpose.”). See also TRW v. Andrews, 534 U.S. 19, 31 (2001): “[It is] a cardinal principle of statutory construction [that] a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.…[We are] reluctant to treat statutory terms as surplusage in any setting.” (citations omitted). The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses Improving Your Expert Deposition Results Is Easy By David Nolte n the vast majority of circumstances, your deposition results can be improved by adding a few questions that usually challenge expert witnesses. Consider the following practical advice gleaned from hundreds of actual depositions. The questions should be modified slightly depending upon your deposition strategy. Before the deposition begins, determine whether you plan to use the deposition for persuading your opponent to settle or to prepare for trial. Whatever strategy you adopt will involve trade-offs. For example: • If you aggressively cross-examine during the deposition, you may get exact admissions and a better chance of settlement. However, you will also reveal your attacks, which will allow your opponent to create responses between the deposition and trial. This is particularly troubling with experts, who presumably are required to modify their opinions as new information is learned. • If you just ask for the expert’s opinion and the basis for the opinion, your opponents are more likely to remain unaware of their vulnerabilities. However, you will also lose opportunities to obtain valuable concessions. Since the deposition is your time to learn, ask plenty of questions that you would never use at trial. Most examiners make insufficient use of open-ended questions that force the witness to explain what work was done and the rationale for the conclusions. I David Nolte is a principal at Fulcrum Financial Inquiry LLP with 28 years of experience performing forensic accounting, auditing, business appraisals, and related financial consulting. He regularly serves as an expert witness. 44 Los Angeles Lawyer November 2004 Questions that demand a yes or no response should be limited to areas in which you already know, or specifically wish to clarify, the expert’s conclusion and rationale. Questions that start with who, what, where, when, why, and how will generate information that you would never get with questions that demand a yes or no response. Simple follow-up questions that will almost always work include “How do you know that?”, or “Why is that true?” Ask questions that elicit limitations in, or concerns with, your opposing expert’s work. Examples include: • What assumptions did you make? • What is the factual basis for this opinion, and how do these facts lead to your conclusion? • What information have you relied on that was provided by counsel or your client? • What concerns do you have regarding your conclusions? • Under what circumstances would you use a different methodology? • What alternative hypotheses could explain what you observed? • What other work would you have liked to have performed? Use your expert to assist with the deposition. If you’ve hired the right expert, he or she will be able to provide years’ worth of insights and understanding. However, do not let your expert complicate the deposition with details that the jury will not understand. Instead, look for key points of underlying disagreement that alter your opponent’s entire conclusion. Use hypothetical questions to move an expert witness off the established script that your opposing counsel is presenting. Hypothetical questions can turn an opposing expert into your witness when a different set of facts are presented. Hypothetical questions can also be used to support the positions of your other witnesses or positions. Similarly, reverse psychology is sometimes the best way of isolating a witness. Test the limits of how far the opposing expert will go to support the untenable. Isolate and discredit a witness who takes an extreme position by taunting him or her into taking positions that most will see as being silly. Most depositions take proportionately too much time on the expert’s background. Unless the expert is truly inexperienced in the relevant field(s), many background questions can be covered by simply having the expert agree that his or her resume or CV is accurate. However, you should spend time looking for areas in which the current testimony contradicts or is impeached by: • Authoritative works in the field. Get the expert to acknowledge which works are authoritative. • Texts that the witness uses as references, or in classes the witness teaches. • The witness’s testimony in other matters. Some of this can be obtained through databases that provide such information for a fee. • The witness’s writings. The Internet is useful for obtaining this and other background information. These same questions can also help your expert to prepare. Review the above areas with your expert well in advance of his or her deposition. Allow sufficient time for your expert to perform whatever additional work is cost-justifiable to remedy the problems that you uncover. ■ ACCIDENT ANALYSIS/RECONSTRUCTION A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, (818) 344-2700, fax (818) 344-3777. Engineers: experienced, registered, advanced degrees, and extensive testimony experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing, time-motion, and lowspeed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, and consumer products: brakes, seat belts, forklifts, machinery, tools, protective equipment, lawn mowers, heaters, chairs, fixtures, ladders, scaffolds, fasteners. Premises liability (code analysis, stairways, ramps, doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. Biomechanics. Safety. Human factors. See display ad on this page. ACCIDENT RESEARCH & RECONSTRUCTION 4120 Elizabeth Court, Cypress, CA 90630, (714) 9955928, fax: (714) 995-5929, cell (714) 904-5928. Contact David Moses, MSc, PE, president, consulting engineer. Forensic engineering, accident research, investigation and reconstruction: trucks, automobiles, motorcycles, bicycles, and pedestrians. All terrain vehicles (ATVs); forklifts; dynamic collision analysis; powertrain malfunction (engine etc.), industrial, and agricultural equipment; machine safety and guarding; mechanical stress and vibration; experimental stress analysis. Slip, trip, and fall. Inspection, photographic documentation (including video) testing, models. Sound level readings for noise exposure and safety analysis. Product liability for all the above. D. WYLIE ASSOCIATES P.O. Box 60836, Santa Barbara, CA 93160, (805) 6819289, 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 page 50. DILL ENGINEERING 2945 Bell Road, Suite 261, Auburn, CA 95603, 30100 Town Center Drive, Suite 0-151, Laguna Niguel, CA 92677, (949) 249-9057, (530) 888-7729, fax (530) 8887729, e-mail: [email protected]. Contact Peter M.W. Dill. Areas of expertise include automobile and motorcycle accident reconstruction, biomechanical injury analysis, human factors, automobile and motorcycle design, mechanical/electronic failure analysis of airbags, seats, seatbelts, fuel systems, rollover, brakes, park-to-reverse, crashworthiness, and roofcrush. 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. Vehicle/pedestrian/traffic engineering cases for both plaintiff and defense. Over 35 years of practicing experience. If your needs fall outside our expertise, we will refer you to the BEST. See display ad on page 60. FRED M. JOHNSON, PHD P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax (714) 526-6662. Contact Fred M. Johnson, PhD. For those who seek the most qualified and the highest forensic workmanship. Extensive test facility and equipment available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight, moon rise/set. Product failure analysis: medical devices, glass, chairs (all types), ladders. Slip and fall: scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traf- fic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of physics, fellow Am. Physical Society, consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author of textbook + 60 scientific publications. Over 35 years in research. Extensive expert witness experience. See display ad on page 66. WILLIAM KUNZMAN, PE 1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: [email protected]. Web site: www.traffic-engineer.com. Contact William Kunzman, PE. Traffic expert witness since 1979, both defense and plaintiff. Auto, pedestrian, bicycle, and motorcycle accidents. Largest settlement: $2,000,000 solo vehicle accident case against Caltrans. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County Road Department, City of Irvine, and Federal Highway Administration. Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work—UCLA; graduate work— Yale University. MR. TRUCK ACCIDENT INVESTIGATION & RECONSTRUCTION P.O. Box 398, Brentwood, CA 94513-0398, (800) 3374994, fax (925) 625-4995, e-mail: [email protected]. Contact William M. Jones. Accident analysis and reconstruction. Court-qualified expert witness regarding car vs. car, truck vs. car cases, trucking industry safety, and driver training issues, including Power Point court presentations. See display ad on page 27. RIMKUS CONSULTING GROUP, INC. 333 City Boulevard West, Suite 1805, Orange, CA 92868, (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski @rimkus.com. Web site: www.rimkus.com. Contact Curt Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable investigations, reports and expert witness testimony around the world. Our engineers and consultants analyze the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure analysis, foundation investigations, industrial accidents and explosions, water intrusion analysis, geotechnical evaluations, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical failure analysis, and video/graphics computer animation. See display ad on page 69. CARL SHERIFF, PE 101531⁄2 Riverside Drive, Suite 365, Toluca Lake, CA 91602, (818) 766-9259, fax (818) 908-9301. Contact Carl Sheriff, PE, forensic engineer. Degreed in the law and engineering. Registered professional engineer in mechanical, controls, and safety. General contractor, real estate broker, and certified building inspector. Licensed truck driver. Consulting and expert testimony on premises liability, product defects, and traffic accidents. Construction and industrial accidents. Building and OSHA code compliance. Slip, trip, and falls. Human factors. Safety evaluation. Computerized analysis and exhibits. Free initial file review. JAMES A. SMITH, CONSULTANT 2562 Treasure Drive, #4102, Santa Barbara, CA 931054104, (805) 687-7911, fax (805) 687-0832, e-mail: [email protected]. Electrical accidents, consultant, expert witness, electrocution, electric shock, analyzing what happened and why, National Electric Code compliance, National Electric Safety Code compliance, protective relaying, and equipment and product testing. Degree/licenses: BSEE, MSEE. A R TECH FORENSIC EXPERTS INC. Experienced engineers Advanced degrees Extensive trial experience ▼ Accident Reconstruction Vehicle Collision Analysis, Speed, Time Motion History, Biomechanics Vehicle Components: brakes, seats, seatbelts, etc. ▼ Product Liability Failure Analysis, Machinery, Guarding, Safety, Industrial & Consumer Products ▼ Construction Code Analysis Stairway, Ramps, Doors, Windows, Guard rails, Roof, Walkways, Pools Industrial & Residential ▼ Slip/Trip & Fall Coefficient or Friction. Trip Hazard, Lighting TELEPHONE: FAX: 818-344-2700 818-344-3777 18075 Ventura Blvd, Suite 209, Encino, CA 91316 One Source. Expert Witness Directory Over 200 qualified expert witnesses, in one reliable source. Contact Forensic Expert Witness Association today for your free desktop copy: 949.640.9903 [email protected] www.forensic.org Chapters in Orange County, Los Angeles, NorCal and San Diego Los Angeles Lawyer November 2004 45 ACCOUNTING 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. 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 47. THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. COHEN, MISKEI & MOWREY LLP 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 41. DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud 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. 46 Los Angeles Lawyer November 2004 FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. GLENN M. GELMAN & ASSOCIATES, CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS 1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com. Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected].. Web site: www.gursey.com. Contact Roseanna Purzycki or Rory Burnett. Forensic accounting and litigation support services in the areas of marital dissolution, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 55. HARGRAVE & HARGRAVE 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard .com. Web site: www.taxwizard.com. Contact Terry M. Hargrave, CPA/ABV, CFE. Litigation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law Section, business valuation instructor for California CPA Foundation and AICPA. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic accounting work. HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations. KAPLAN ABRAHAM BURKERT & COMPANY Forensic valuation consultants. 5950 Canoga Avenue, Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, CFFA. Expert witness services and preparation in matters involving business disputes, goodwill, economic damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital dissolution, legal and accountants’ malpractice, wrongful termination, intellectual property, and bankruptcy. Member of Voir Dire Partners, LLC. Affiliated offices nationwide. ARA KASSABIAN, CPA 136 North Glendale, Glendale, CA 91206, (818) 5437200, fax (818) 543-7272, e-mail: adkassabian@earthlink .net. Contact Ara Kassabian. Forensic analysis of opera- tions, financial records, and construction contract billings, investigative accounting, accounting and financial statements analysis, fraud analyses and audits, business valuation and disputes on damages. Ara Kassabian has more than 15 years of corporate and public accounting and auditing experience and holds the following degrees/licenses: CPA, CMA, CFP, MBA. KRYCLER, ERVIN, TAUBMAN, & WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, 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 72. DIANA G. LESGART, CPA, CFE, AN ACCOUNTANCY CORP. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 @msn.com. Contact Diana G. Lesgart, CPA, CFE. Specialized accounting and litigation support services in the areas of family law litigation, tracing of assets, pension plan tracing, forensic accounting, business valuation, goodwill, expert testimony, commercial litigation, fraud investigations, economic damages, and real estate litigation. Over 20 years’ accounting experience with 16 years’ litigation support specialization. Expert is fully English/Spanish bilingual. LEWIS, JOFFE & CO, LLP 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, and trust and income tax services. MIOD AND COMPANY, LLP CPAS 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @miod-cpa.com. 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 Institute of CPAs, and California Society of CPAs. See display ad on page 72. DAVID OSTROVE, ATTORNEY-CPA 5757 Wilshire Boulevard, Suite 535, Los Angeles, CA 90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail: [email protected]. Web site: www.lawyers.com /ok&olaw. Contact David Ostrove. Accounting malpractice (defense/plaintiff). Experts in legal malpractice (defense/plaintiff), auditor’s malpractice (defense/plaintiff), business valuations, breach of fiduciary duty, insurance bad faith cases, tax matters, fraudulent conveyances, leveraged buyout, analysis of financial statements, estate planning, civil litigation, tax litigation, probate litigation, criminal tax litigation, and business and real estate transactions. See display ad on page 4. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert @schulzehaynes.com. Web site: www.schulzehaynes .com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: [email protected]. Web site: www.sjaccounting .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a California-based certified public accounting and business advisory firm founded in 1975. Our services include assurance /accounting, business consulting (profit enhancement, finance sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 9. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1151, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J. Schwartz, CPA, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, Ron B. Miller, CPA, ABV, CFE, or David Dichner, CPA, ABV, CVA. Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, and settlement negotiations and consultations. See display ad on page 53. EXPERT WITNESS INDUSTRIAL/COMMERCIAL REAL ESTATE Care, Duty & Broker Responsibility Lease & Purchase Contracts Condition of Premises 42 Years of Experience JACK KARP (310) 377-6349 FAX: (310) 868-2880 EXPERT WITNESS • PSYCHIATRY GILBERG, ARNOLD L., M.D., PH.D • Appointed to Medical Board of California (11th district MORC) by Governors Brown, Jr., Dukmejian, and Wilson (1982-1991) • Associate Clinical Professor of Psychiatry, UCLA School of Medicine • All areas of civil litigation • Board Certified since 1971 E-Mail: [email protected] TEL 310/274-2304 FAX 310/203-0783 9915 Santa Monica Blvd., Suite 101 Beverly Hills, CA 90212 ConfidenceAtThe Courthouse. Business litigation is increasingly complex. That is why we believe valuation issues must be addressed with the same meticulous care as legal issues. Analysis must be clear. Opinions must be defensible. Expert testimony must be thorough and articulate. HML has extensive trial experience and can provide legal counsel with a powerful resource for expert testimony and litigation support. For More Information Call 213-617-7775 Or visit us on the web at www.hmlinc.com BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS Los Angeles Lawyer November 2004 47 ADA/DISABILITY DISCRIMINATION HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retaliation, 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 & IMMUNOLOGY ALLERGY ASTHMA RESPIRATORY CARE MEDICAL CENTER, INC. 2600 Redondo Avenue, Suite 400, Long Beach, CA 90806, (562) 997-7888, fax (562) 997-8884, e-mail: [email protected]. Web site: www.allergy-asthma .info. Contact Andrea Newsom. Specialties include latex allergy, asthma, food allergy, drug allergy, anaphylaxis, sinusitis, hives, sick building syndrome, mold, and environmental disease. Experience, civil: retained or reviewed more than 70 latex products liability cases, retained for allergy and internal medicine cases in the areas of occupational asthma, mold exposure, civil litigation, sick building syndrome. Multiple chemical sensitivity, smoke inhalation, and toxic exposure. ANESTHESIOLOGY ROGER F. DONENFELD, MD 10557 Rocca Place, Los Angeles, CA 90077, (310) 4713777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail .com. Contact Roger F. Donenfeld, MD. Chart review and depositions. Expert witness, board certified, 1986. Anesthesiology fellowship-trained. Ivy League, board review textbook author. Certified medical board of CA expert. Active clinical anesthesia 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 75. DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud examiners, statisticians, economists, computer forensic experts, business valuation experts, and online research specialists. We also employ former senior law enforce- 48 Los Angeles Lawyer November 2004 ment officials and agents from the FBI and other government agencies. Services available worldwide. DENA HALL AND ASSOCIATES 4554 Poe Avenue, Woodland Hills, CA 91364, (818) 8874399, fax (818) 887-4479, e-mail: [email protected]. Contact Dena Hall, ASA, AAA, senior member. Fine art and personal property appraiser, tested and certified. Specialist in antiques, fine arts, and decorative 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, state, and federal courts. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry .com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. HAMILTON, RABINOVITZ & ALSCHULER, INC. 2800 28th Street, Suite 325, Santa Monica, CA 90405, (310) 581-0900, fax (310) 581-0910. Contact Paul J. Silvern, partner. 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. HARGRAVE & HARGRAVE 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard .com. Web site: www.taxwizard.com. Contact Terry M. Hargrave, CPA/ABV, CFE. Litigation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law Section, business valuation instructor for California CPA Foundation and AICPA. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic accounting work. HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 47. HOULIHAN LOKEY HOWARD & ZUKIN 1930 Century Park West, Los Angeles, CA 90067, (310) 553-8871, fax (310) 553-2173. Contact O. Kit Lokey. Houlihan Lokey Howard and Zukin is a leading independent financial adviser, with nine offices across the U.S. and U.K. The firm provides business and securities valuations, fairness, solvency and ESOP opinions, estate and gift tax valuations, and dispute analysis and litigation support services. KAPLAN ABRAHAM BURKERT & COMPANYForensic valuation consultants. 5950 Canoga Avenue, Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, CFFA. Expert witness services and preparation in matters involving business disputes, goodwill, economic damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital dissolution, legal and accountants’ malpractice, wrongful termination, intellectual property, and bankruptcy. Member of Voir Dire Partners, LLC. Affiliated offices nationwide. KRYCLER, ERVIN, TAUBMAN, & WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, 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 72. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. APPRAISER-RESIDENTIAL REAL ESTATE ADELMAN APPRAISALS, INC. 14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA 91423, (818) 995-0648, fax (818) 990-0326, e-mail: [email protected]. Web site: www.adelmanappraisals.com. Contact Chris Adelman. Specialties: 10+ years’ experience in residential real estate appraisals, high-end residential appraisals, divorces, separation, trust, and retroactive appraisals, expert witness, depositions for residential evaluations and litigation, vacant land evaluations, extensive experience in dealing with law offices, business managers, and accounting firms for various appraisal related business. ARCHITECTURAL FORENSICS PHILIP KROEZE, AIA, CONSULTING ARCHITECTURAL SERVICES 19 Summerside, Coto De Caza, CA 92679, (949) 5890554, fax (949) 589-4351, e-mail: [email protected]. Contact Philip Kroeze, AIA. Expert witness: architectural and engineering standard of care, construction defects, moisture intrusion, and construction documents. Thirtyfive years of experience in design and construction, residential, commercial, and office buildings. Exhibits (photos, models, charts, renderings). Service area: Southern California. SPIEGEL PROPERTY DAMAGE CONSULTING & FORENSICS (800) 266-8988, fax (909) 591-7274, e-mail: brispi711@aol .com. Web site: www.propertydamageinspections.com. Contact Brian Spiegel/David Spiegel. Consultants and expert witnesses (plaintiff and defense), mold contamination structure and contents, mold remediation standards of care, water damage/water intrusion detection/concrete moisture testing, sewage backflows, and fire and smoke damage. Trouble shooting/cause and origin. Invasive and noninvasive testing. Industry standards for construction and restoration. Insurance claims experts, determine if damage is related to claim, flooring forensics, construction defect, and detailed construction cost estimates. In- White Zuckerman Warsavsky Luna Wolf Hunt LLP • Expert Witnesses • Forensic Accountants & Economists • Business Appraisers • Lost Profits and Earnings In Commercial and Personal Litigation • Fraud Investigation • Marital Dissolution • Client Service Oriented • Excellent Communication Skills Certified Public Accountants Profits Lost Profits Analysis Lost Profits Years 14455 Ventura Boulevard, Suite 300, Sherman Oaks, California, 91423 Phone (818) 981-4226, Fax (818) 981-4278 363 San Miguel Drive, Suite 130, Newport Beach, California, 92660 Phone (949) 219-9316, Fax (949) 219-9095 www.wzwlw.com Email: [email protected] — DRIVER ERROR ANALYSIS — Human Factors Forensic Science Internationally Recognized Expert Driver error • Inattention • Fatigue • Sensory, perceptual, mental, and physical factors • Car, truck and bus driver skill and knowledge requirements • Driver and motor carrier standards of care • Hours of service violations • Circadian rhythms • Sleep debt • Human factors traffic accident analysis www.drivingfatigue.com DENNIS WYLIE ■ D. WYLIE ASSOCIATES P O Box 60836, Santa Barbara, CA 93160 VOICE (805) 681•9289 ■ FAX (805) 681•9299 EXPERT WITNESS — Claims Consultant EXPERIENCE OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states and qualified in state and federal courts. Expert in good faith/bad faith, standards and practices and standard in the industry. Specialties in property/casualty construction defect, fire/water, uninsured/underinsured motorist, warehouse and cargo claims. Litigation support, case review and evaluation claim consultation, coverage review and evaluations. INTEGRITY HONESTY Contact Gene Evans at E. L. Evans Associates Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] spections, formal reports and litigation support. Lic. Gen. Constractors B C15 C33 C61/D-52. Lic. Gen Contractor #299472. Degrees/licenses: CRs, CIEs, CMRs, IICRC Masters. See display ad on page 73. SCHWARTZ / ROBERT & ASSOCIATES, INC. 42 Faculty Street, Thousand Oaks, CA 91360, (805) 7771115, cell (818) 825-3247, fax (805) 777-1172, e-mail: [email protected]. Web site: www.schwartzrobert .com. Contact Robert I. Schwartz, AIA. Real Property Development procedures & practices, all building types, sizes & phases. Professional evaluation of building design errors & omissions, building code compliance & professional standards of practice. Forensic investigation of construction defects. Repair cost estimates. Construction contract/subcontract performance—project management administration & cost accounting, CPM scheduling, cost estimating, change order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness testimony. Experienced AAA arbitrator & mediator. Large & complex cases. Member, Dispute Resolution Boards. BAD FAITH EXPERT DAVID F. PETERSON 10681 Encino Drive, Oak View, CA 93022, (805) 6498557, fax (805) 649-5957, e-mail [email protected]. Contact David F. Peterson. Fourteen years of claim experience. Twenty-five years as a bad faith coverage attorney. Qualified and testified in over 50 trials on bad faith (first and third party), underwriting, legal malpractice, coverage and advice of counsel. Testimony in federal and state courts in California, Arizona, Nevada, Virgin Islands, and Saint Lucia, West Indies, for insureds and insurers. 3 3 1 0 A I R P O R T AVENUE, S U I T E 2 , S A N T A M O N I C A , C A L I F O R N I A 9 0 4 0 5 BANKING VALUATION AND LITIGATION CONSULTANTS Since 1968 ▲ BUSINESS VALUATION — Appraisal of tangible and intangible assets; mergers. acquisitions, divestitures; public and private financings; litigation involving partnership or corporate disputes; estate planning ▲ LITIGATION CONSULTING — Expert testimony on damage issues; breach of contract; business interruption; partnership or shareholder disputes; fraud investigations; personal injury matters ▲ EMINENT DOMAIN — Specialty practice in the appraisal of fixtures and equipment and goodwill loss ▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant database management and settlement distribution services COMMITMENT, INGENUITY, INTEGRITY Contact: Aaron Amster, Wes Nutten 6060 Center Drive, Suite 825 225 Bush Street, 16th Floor Los Angeles, California 90045 San Francisco, California 94104 Tel (310) 216-1400 Tel (415) 439-8390 Fax (310) 216-0800 Fax (415) 439-8391 Toll-free (888) 240-5184 www.dmavalue.com 50 Los Angeles Lawyer November 2004 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. ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter @earthlink.net. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lending, 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 73. BANKRUPTCY/TAX ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter @earthlink.net. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lending, 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 73. 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 47. GREENBERG GLUSKER FIELDS CLAMAN MACHTINGER & KINSELLA LLC 1900 Avenue of the Stars, Suite 2100, Los Angeles, CA 90067, (310) 201-7456, fax (310) 553-0687, e-mail: [email protected]. Web site: www.ggfirm.com. Contact Karl E. Block. Expert testimony and consulting. THE SCOTLAND GROUP, INC., AN ALTMA GROUP, LLC COMPANY 620 Newport Center Drive, Suite 1100, Newport Beach, CA 92660, (949) 673-7750, fax (949) 673-7751, e-mail: [email protected]. Web site: www.scotlandgroup.com. Contact David L. Auchterlonie, CTP. Firm of over 60 professionals (CEOs, COOs, and CFOs), each with more than 20 years of hands-on corporate turnaround and management consulting experience. Since 1986, the firm has served more than 600 underperforming and financially distressed businesses. Experts in corporate renewal. STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: [email protected]. Web site: www.sjaccounting .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a California-based certified public accounting and business advisory firm founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 9. BIOMECHANICS FRED M. JOHNSON, PHD P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax (714) 526-6662. Contact Fred M. Johnson, PhD. For those who seek the most qualified and the highest forensic workmanship. Extensive test facility and equipment available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight, moon rise/set. Product failure analysis: medical devices, glass, chairs (all types), ladders. Slip and fall: scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traffic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of physics, fellow Am. Physical Society, consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author of textbook + 60 scientific publications. Over 35 years in research. Extensive expert witness experience. See display ad on page 66. @pfscorporation.com. Web site: www.pfscorporation.com. Contact J. Robert Nelson, PE. Building and fire code expert. Thirty years in code enforcement and construction (10 years with ICBO/Uniform Building Code and Uniform Fire Code, 5 years with Los Angeles County Building Department). Civil, structural, and fire protection engineering. BUSINESS ROBERT C. ROSEN 300 South Grand Avenue, Suite 2700, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site: www.rosen-law.com. Specializing in securities law, federal securities law enforcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, internet securities, and law firm liability. Former chair, LACBA Business & Corporations Law Section; LLM, Harvard Law School. More than 30 years practicing securities law, 12 years with the U.S. Securities & Exchange Commission, Washington, DC. Published author of securities regulations, including 8 volume treaties. See display ad on page 57. BUSINESS APPRAISAL/BUSINESS VALUATION THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. COHEN, MISKEI & MOWREY LLP 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 41. BUILDING & FIRE CODES DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www.dmavalue.com. Contact Wes Nutten, Aaron Amster, or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 50. PFS CORPORATION 3637 Motor Avenue, Suite 380, Los Angeles, CA 90034, (310) 559-7287, fax (310) 559-1368, e-mail: rnelson FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte Your Single Source for construction-related investigations and litigation support. Consulting Services Our experienced experts/consultants ensure a coordinated, cost-effective, multi-disciplined approach to visual and intrusive site investigations, document review, research and analysis of code and industry standards issues, cost estimates, arbitration, mediation, and courtroom testimony involving: Construction Defects Delay and Disruption Claims Insurance Investigation Personal Injury/Safety ADA Auditing and Compliance Contractual Disputes Error & Omission Claims Surety Claims Services Complete surety support, including initial exposure analysis, project takeover and completion, claims packaging and resolution, and subrogation and recovery. Takeovers and Completions Exposure Analysis Payment Bond Claim Reconciliations Construction Claims/Packaging and Resolution Dispute Resolution Litigation Support Expert Witness Testimony Computerized Document Control www.roel.com / 800.662.7635 California / Arizona / Nevada Utah / New Mexico / Oregon CA Lic. # 184531-B1 Los Angeles Lawyer November 2004 51 @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected] site: www.gursey.com. Contact Vanita M. Spaulding, CFA, ASA. Partner qualifications include MBA, CFA, ASA, and ABV. GSCO is an accounting firm specializing in forensic accounting, litigation support services, business valuation and appraisal services, for a variety of purposes including marital dissolution, gift and estate planning, eminent domain goodwill loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. GSCO has over 30 years’ experience as expert witnesses in litigation support. See display ad on page 55. HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail:sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations. HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 47. KAPLAN ABRAHAM BURKERT & COMPANY Forensic valuation consultants. 5950 Canoga Avenue, Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, CFFA. Expert witness services and preparation in matters involving business disputes, goodwill, economic damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital dissolution, legal and accountants’ malpractice, wrongful termination, intellectual property, and bankruptcy. Member of Voir Dire Partners, LLC. Affiliated offices nationwide. NANCY A. KEARSON, CPA, ABV, CVA, DABFA 1801 Century Park East, Suite 2400, Los Angeles, CA 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Contact Nancy Kearson. Specialties: solid, cost-effective, timely expert witness and consultation services, investigative forensic accounting, asset tracing, loss of earnings calculations, partnership and shareholder disputes, business valuation, and professional practice appraisal. Director, California Society of CPAs-LA. Immediate past officer, Family Law Section. Licenses and accreditations: Certified Public Accountant; Accredited in Business Valuation, Certified Valuation Analyst, Diplomate of the American Board of Forensic Accountants. 52 Los Angeles Lawyer November 2004 LEWIS, JOFFE & CO, LLP 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, and trust and income tax services. MIOD AND COMPANY, LLP CPAS 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @miod-cpa.com. 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 Institute of CPAs, and California Society of CPAs. See display ad on page 72. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert @schulzehaynes.com. Web site: www.schulzehaynes .com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. SINGLER VALUATION CONSULTING 2127 Lyans Drive, La Cañada, CA 91011, (818) 541-1500, fax (818) 541-1565, e-mail: [email protected]. Contact Noa Singler. Valuation of closely held businesses, eminent domain, goodwill loss analysis, expert witness testimony, litigation consulting, gift and estate tax, damage analysis, and acquisitions. STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: [email protected]. Web site: www.sjaccounting .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a Californiabased certified public accounting and business advisory firm founded in 1975. Our services include assurance/ accounting, business consulting (profit enhancement, finance sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 9. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. CHEMISTRY CHEMICAL ACCIDENT RECONSTRUCTION SERVICES, INC. 9121 East Tanque Verde Road, Suite 105, Tucson, AZ 85749, (800) 645-3369, fax (520) 749-0861, e-mail: [email protected]. Web site: www.chemaxx.com. Contact Dr. Michael Fox. Comprehensive chemical accident investigation—specializing in complex industrial chemical accidents and chemical-related consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, chemical handling and shipping, chemical burns, hot liquid burns, chemical warnings, chemical disposal, chemical safety, EPA, DOT, OSHA, propane, natural gas, flammable liquids, hazardous chemicals, aerosols, metallurgy, corrosion, failure analysis, water contamination, water testing, plastics, acids, alkalis, and MSDSs. State-of-the-art equipment available, including natural SEM/EDAX, GC/MS, FTIR, etc. PhD physical chemistry, certified fire and explosion investigator, NACE accredited in corrosion, OSHA HAZWOPER certified (hazardous chemicals), DOT certified (shipment of hazardous materials), accredited in aerosol technology. COMPUTER FORENSICS DATACHASERS, INC. P.O. Box 2861, Riverside, CA 92516-2861, (877) Data Exam, (877) 328-2392, (909) 780-7892, fax (909) 7809199, e-mail: [email protected]. Web site: www .dataChasers.com. Contact Rick Albee. Hard drive imaging, use assessment and auditing, intellectual property and trade secret disputes, restore hidden, 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 of public sector experience. Multiple certifications. Prior law enforcement. See display ad on page 54. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. COMPUTER SIMULATIONS/GRAPHIC VISUAL FORENSICS (800) 426-6872, 130 Ryan Industrial Court, Suite 105, San Ramon, CA 94583. Web site: www.visualforensics.com. 3D computer simulations for all aspects of accident reconstruction, vision related malpractice, criminal reenactment, and more. Vision perception, site visibility, and human factors analysis. Opposing demonstrative evidence analysis. In-house scientific and engineering experts. Led by internationally recognized vision scientist, Dr. Arthur P. Ginsburg, who has over 16 years of experience as a vision and visibility expert consultant for the legal industry and government agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes and Court TV. See display ad on page 75. COMPUTERS/INFORMATION SCIENCES COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove @computer.org. Web site: www.cosgrovecomputer.com. Contact John Cosgrove. John Cosgrove, PE, has over 40 years’ experience in computer systems and has been a self-employed, consulting software engineer since 1970. He is a part-time lecturer in the UCLA School of Engineering and LMU graduate school. He recently completed an invited article, “Software Engineering & Litigation,” for the Encyclopedia of Software Engineering. He holds the CDP, is a member of ACM, NSPE, a senior member of IEEE Computer Society, and a professional engineer in California. Formal education includes a BSEE from Loyola University and a master of engineering from UCLA. GREAT SCOTT ENTERPRISES P.O. Box 42047, Tucson, AZ 85733, (866) 795-7166, (520) 722-6796, e-mail: [email protected]. Web site: www.great-scott.com. Contact Scott Greene, CEO/CIO. The professional computer consulting and computer forensics firm with 20+ years’ experience, computer forensics consulting specializing in recovery, acquisition, preservation, and analysis of data as evidence, including data purposefully destroyed. Proper handling techniques can save data from Web sites, files, fax machines and emails. Expert witness testimony for both plaintiffs and defendants in court and arbitration cases. Skilled at databases, source code copyright, documents, e-mails, images, accounting systems, hacking events, and password cracking. DISCOVERY DIAGNOSTICS, MEDICAL CORPORATION R A D I O L O G Y B Reader Board Certified Diagnostic and Nuclear Radiologist Providing Statewide Diagnostic Imaging Services and Second Opinions Deposition, Arbitration and Trial Support Pre-trial Research and Education Liens Accepted on Primary Imaging Studies 6200 Wilshire Blvd, Suite 1008, Los Angeles, CA 90048 (800) 222-6768 • (323) 933-5100 • Fax (323) 933-4966 Web addresses: www.themripeople.com • www.msus.com • www.breader.com E-mail address: [email protected] COMPUTERS/INFORMATION SECURITY ONLINE SECURITY 5870 West Jefferson Boulevard, Suite A, Los Angeles, CA 90016, (310) 815-8855, fax (310) 815-8808, e-mail: glen @onlinesecurity.com. Web site: www.onlinesecurity.com. Contact Glen Hastings. At OnlineSecurity our mission is protecting digital assets worldwide through three interlocking service lines: IT forensic, consulting and investigations, and information security. Our IT forensic practice includes computer and network forensics and forensic evidence harvesting. Our consulting and investigations practice includes discovery strategy and expert witness testimony. Information security provides computer security and compliance consulting services to our clients. See display ad on page 76. CONSTRUCTION ABACUS PROJECT MANAGEMENT, INC. 20201 Southwest Birth Street, Suite 240, Newport Beach, CA 92660, (949) 851-1015, fax (949) 851-0409, e-mail: [email protected]. Web site: www.abacuspm .com. Contact John Flynn. Expert witness. Cost estimation, construction management analysis, delay analysis, and professionally trained mediator and arbitrator. Lead expert with over 40+ years’ experience in construction industry. Testified on 20 occasions in superior court. Los Angeles Lawyer November 2004 53 FORENSISGROUP 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site: www.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality experts in construction, engineering, product liability, safety, environmental, accident reconstruction, automotive, failure analysis, fires, explosions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scientific disciplines. We provide you with a select group of high-quality experts as expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 53. GLENN M. GELMAN & ASSOCIATES, CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS 1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com. Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. Construction Claims When you’re handling a construction dispute, you’ll be glad to know who we are. Pacific Construction Consultants, Inc. will assist in uncovering and analyzing facts important to your case. Our highly experienced staff will provide support from the first analysis to the last day in court–investigating, making the complex understandable, and presenting evidence through expert testimony and trial support graphics. Pacific Construction Consultants, Inc. is responsive, factual, and results-oriented. For more information, call 1-800-655-PCCI. PACIFIC CONSTRUCTION CONSULTANTS, INC. 54 Los Angeles Lawyer November 2004 MPGROUP CONSTRUCTION CONSULTANTS • FORENSIC EXPERT WITNESSES • MEDIATION 1202 Greenacre Avenue, West Hollywood, CA 900465708, (323) 874-8973, toll free (800) 684-9100, fax (323) 874-8948, email: [email protected]. Web site: www.mpgroup.com. Contact Michael S. Poles, GC, CM, RCI, DABFET, ACFE. MPGroup is a collaboration of architects, engineers, contractors and other technical experts specializing in consulting, forensic expert witness, and litigation support services since 1962. Specialty areas: Accident reconstruction; Americans with Disabilities Act; building code compliance; building code standards; claims analysis and mitigation; construction administration; construction defects; contract compliance; cost estimating; customs and practices; design and implementation; earthquake hazard; flooring and floor covering; framing (wood and steel); geotechnical and hydrological; personal injury; quality of workmanship; reinforced concrete; reinforced masonry; roofing and waterproofing; safety and OSHA standards; scaffolding; scheduling and delays; slips, trips and falls; steps, stairs and railings; Standards of Care; Standards of Practice; structural failure; structural steel and welding; water intrusion and mold. See display ad on page 8. PACIFIC CONSTRUCTION CONSULTANTS, INC. (800) 655-PCCI. Contact marketing director. Construction contract disputes (claims) analysis, prep and presentation, delay and monetary impact evaluation, including CPM schedules. Architectural, civil, structural, mechanical, and electrical specialties. Full in-house courtroom visual exhibit preparation. Assistance in negotiations, mediation, arbitration, and litigation. Expert witness testimony. Additional phone (310) 337-3131 or (916) 638-4848. See display ad on this page. PCMI THE EXPERT CHOICE® 2402 Cross Street, Riverside, CA 92503, (800) 576-7264, fax (888) 307-7264, e-mail: [email protected], Web site: www.pcmi.biz. Contact Scott Vivian. PCMI is a construction consulting firm providing litigation, mediation, and court testimony since 1982 for construction defects, delay claims, breach of contract, and personal injury. PCMI has provided expert services for both plaintiff and defense. See display ad on page 60. R N RICE AIA ARCHITECT & ASSOCIATES, INC. ARCHITECT AND GENERAL CONTRACTOR 4973 Leeds Street, Simi Valley, CA 93063, (805) 5779455, fax (805) 577-9457, e-mail: [email protected]. Web site: www.jurispro.com/mem/richardrice. Forensic Architectural and Construction Technical Services (“F.A.C.T.S.”) 40-plus years’ diverse experience. Commercial/residential $100k-$30m, expert witness, construction defects, codes, site inspection, coordination of experts, destructive testing, repair solutions, bidding and costs, and allocation of responsibility and detailed reports. Certified mediator and arbitrator, dispute review board panelist. Trial support. Degrees/license: BA Arch; Cert Arch/NCARB/Gen Contr. Insurance appraiser, and mediator/arbitrator/DRB. RIMKUS CONSULTING GROUP, INC. 333 City Boulevard West, Suite 1805, Orange, CA 92868, (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski @rimkus.com. Web site: www.rimkus.com. Contact Curt Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable investigations, reports and expert witness testimony around the world. Our engineers and consultants analyze the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure analysis, foundation investigations, industrial accidents and explosions, water intrusion analysis, geotechnical evaluations, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical failure analysis, and video/graphics computer animation. See display ad on page 69. SCHWARTZ / ROBERT & ASSOCIATES, INC. 42 Faculty Street, Thousand Oaks, CA 91360, (805) 7771115, cell (818) 825-3247, fax (805) 777-1172, e-mail: [email protected]. Web site: www.schwartzrobert .com. Contact Robert I. Schwartz, AIA. Real Property Development procedures & practices, all building types, sizes & phases. Professional evaluation of building design errors & omissions, building code compliance & professional standards of practice. Forensic investigation of construction defects. Repair cost estimates. Construction contract/subcontract performance—project management administration & cost accounting, CPM scheduling, cost estimating, change order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness testimony. Experienced AAA arbitrator & mediator. Large & complex cases. Member, Dispute Resolution Boards. SPECTRUM DEVELOPERS 1241 Flemington Road, Riverside, CA 92506, (909) 776-1194, fax (909) 776-1196, e-mail: steve@spectrumdevelopers .com. Web site: www.spectrumdevelopers.com. Contact Steve Koppes. Inspections, expert testimony, and consulting for construction defects related to swimming pools, fountains, and spas. ULTIMO ORGANIZATION, INC. 1411 East Borchard Avenue, Santa Ana, CA 92705, (714) 560-8999, fax (714) 560-8998, e-mail: yolana @geotechnical.com. Web site: www.geotechnical.com. Contact Frank Ultimo. Estimating cost of repair of construction defects. Hands-on construction experience both commercial and residential for 40+ years’ experience involving analysis design and construction include foundation floor-level surveys, repair plans, and drawing, also waterfront expertise, and environmental remediation, structural engineering, geotechnical investigation, codes, and accurate documentation and estimates. See display ad on page 58. URS 915 Wilshire Boulevard, Suite 1800, Los Angeles, CA 90017, (213) 996-2549, fax (213) 996-2521, e-mail: [email protected]. Expert witness for entitlement, causation damages on design, construction, and geotechnical environmental disputes. Experienced in all types of construction projects. See display ad on page 59. CONSTRUCTION CLAIMS KGA, INC. 1205 North Coast Highway, Suite D, Laguna Beach, CA 92651, (949) 497-600, fax (949) 494-4893, e-mail: socal @kgainc.com. Web site: www.kgainc.com. Contact Kurt Grosz. Expert witness testimony for construction and environmental disputes. Past cases include: toxic mold, property loss, delay and contract claims, code compliance, cost and method of repair, defect cause, surety, bad faith, standards-of-care for contractors and designers, and safety. Mr. Grosz is also a respected and wellknown arbitrator. KGA experts have served as witnesses, mediators, insurance appraisers, court appointed experts, and negotiators. ROEL CONSULTING GROUP A Division of Roel Construction Company 3366 Kurtz Street, San Diego, CA 92110, (619) 297-4156, ext. 303, fax (619) 297-5510, e-mail: [email protected]. Web site: www.roel.com. Contact Steve Grimes. Backed by 87 years of construction experience, the Roel Consulting Group offers a single source for tightly coordinated high-quality expert services. Our staff includes experts in virtually every field of construction specialization. We offer a wide variety of services to assist attorneys and their clients, including testing, intrusive investigations, reports, cost of repair analysis, mediation and litigation support. Serving California, Nevada, Arizona, Oregon, New Mexico and Utah. See display ad on page 51. 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. CRIMINOLOGY/GANGS DR. LEWIS YABLONSKY 2311 Fourth Street, Suite 312, Santa Monica, CA 90405, phone and fax: (310) 450-3697, e-mail: expertwitness @lewyablonsky.com. 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. Published 18 books on criminology and social problems, including Criminology (1990); Gangsters; (1997) and Gangs in Court (Lawyers & Judges Publishers, January 2005). Consultant/expert witness in over 150+ legal cases in various areas of criminality, especially gangs (135+ gang cases). Also homicide, drug addiction, company security liability, and responsibility. See Web site. Appointed to the “Panel of Experts” approved by the LA County Superior Court Judge’s Committee. See display ad on page 57. DISPUTE ANALYSIS THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys CONSTRUCTION INVESTIGATIONS DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud 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. CORPORATE INVESTIGATIONS THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a Los Angeles Lawyer November 2004 55 with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www.dmavalue.com. Contact Wes Nutten, Aaron Amster, or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 50. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. ECONOMIC DAMAGES 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 47. THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique 56 Los Angeles Lawyer November 2004 of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud 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 financial services. ECONOMIC CONSULTANTS & ASSOCIATES 2030 Main Street, Suite 1300, Irvine, CA 92614, (714) 547-6588, (310) 246-9993, fax (714) 547-9916, e-mail: [email protected]. Contact Stephen T. Riley, PhD. Quantifying losses in the following areas: P/I, wrongful death, loss of household services, loss of earning capacity, medical/legal malpractice, business losses (lost profits), wrongful termination, and expert testimony. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry .com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 47. HOLLIS & ASSOCIATES 238 Pasadena Avenue, Suite 200, South Pasadena, CA 91030-2920, e-mail: [email protected]. Contact Michael R. Hollis, MBA, MA (Econ). Economic damages analysis and expert witness testimony regarding personal injury, wrongful death, earning capacity, household services, wrongful termination, employment discrimination, sexual harassment, medical malpractice, business damages (lost profits), products liability, and pediatrics. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert @schulzehaynes.com. Web site: www.schulzehaynes .com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. ECONOMICS 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/ad- ministration, 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. THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. COHEN, MISKEI & MOWREY LLP 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 41. DELOITTE & TOUCHE LLP 350 South Grand Avenue, Los Angeles, CA 90071, (213) 688-4135, fax (213) 673-6719, e-mail: mspindler @deloitte.com. Contact Michael Spindler, (213) 6884135, Mimi Justice, (714) 436-7026, or Tom Hughes, (619) 237-6583. Our highly skilled team is composed of a diverse group of practitioners—CPAs, certified fraud 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 financial services. HAMILTON, RABINOVITZ & ALSCHULER, INC. 2800 28th Street, Suite 325, Santa Monica, CA 90405, (310) 581-0900, fax (310) 581-0910. Contact Paul J. Silvern, partner. 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, hous- LEGAL MALPRACTICE, ETHICS AND FEE DISPUTE EXPERT WITNESS BOYD S. LEMON, ESQ. 38 YEARS TRIAL EXPERIENCE; RETAINED EXPERT IN MORE THAN 600 CASES; FORMER MAJOR LAW FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE ARBITRATOR; COURT APPOINTED MEDIATOR. 310/827-0840 • www.legalmalexpert.com DR. LEWIS YABLONSKY – CRIMINOLOGY/GANGS ✔ Consultant/Expert Witness in over 150+ legal cases in various areas of criminality, especially gangs (135+ cases). 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. Appointed to the Los Angeles County Superior Court “Panel of Experts.” ✔ Published 19 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) and Gangs In Court (to be published in January, 2005). ✔ 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. PHONE/FAX 310.450.-3697 • E-MAIL [email protected] WEB SITE www.lewyablonsky.com 2311 FOURTH STREET, SUITE 312, SANTA MONICA, CA 90405 SECURITIES Securities Law Federal Securities Law Enforcement International Securities Regulation Insider Trading NYSE, AMEX, NASD Disciplinary Proceedings Broker-Dealer, Investment Company & Investment Adviser Matters Liability Under Federal & State Securities Laws Public & Private Offerings Internet Securities Securities Arbitration Law Firm Liability Robert C. Rosen Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. Over 30 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, Washington D.C. Published Author of Securities Regulations, including nine volume treatise. Rosen & Associates, P.C. LAW OFFICES California Plaza • 300 S. Grand Avenue, Suite 2700 • Los Angeles, CA 90071 TEL 213/362-1000 ■ FAX 213/362-1001 Web site: Rosen-law.com E-mail: [email protected] Los Angeles Lawyer November 2004 57 ing, minority rights, education, and employment cases. Degrees/license: MBAs, PhDs, cert. planners, MPAs, MCPs. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. ELECTRICAL JAMES A. SMITH, CONSULTANT 2562 Treasure Drive, #4102, Santa Barbara, CA 931054104, (805) 687-7911, fax (805) 687-0832, e-mail: [email protected]. Electrical accidents, consultant, expert witness, electrocution, electric shock, analyzing what happened and why, National Electric Code compliance, National Electric Safety Code compliance, protective relaying, and equipment and product testing. Degree/licenses: BSEE, MSEE. ELECTRICAL ENGINEERING CTG FORENSICS, INC. 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) 790-0010, fax (949) 790-0020, e-mail: mlewis @CTGforensics.com. Web site: www.CTGforensics.com. 58 Los Angeles Lawyer November 2004 Contact Dr. Malcolm Lewis, PE. Construction-related engineering, plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, construction claims, and mold. ELECTRONIC DISCOVERY FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. EMPLOYMENT G. GOVINE CONSULTING 260 North Mar Vista, Suite #2, Pasadena, CA 911061413, (626) 564-0502, fax (626) 564-8702, e-mail: info @govineconsults.com. Web site: www.info@govineconsults .com. Contact Dr. Gerda Govine. 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 harassment matters. Practices of employment discrimination, deposition preparation, and mediation. See display ad on page 61. HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful termination. 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. BRIAN H. KLEINER, PHD Professor of Human Resource Management, California State University, 800 North State College Boulevard, LH640, Fullerton, CA 92834, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specializations include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and practices, reasonable care, progressive discipline, conducting third-party workplace investigations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/FMLA, compensation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over 500 publications. Five-time winner of CSUF Meritorious Performance Award. Have given trial testimony in over 35 cases. STEPHEN J. MOREWITZ, PHD & ASSOCIATES 5300 Bothwell Road, Tarzana, CA 91356, (818) 594-1587, fax (818) 345-9981, e-mail: [email protected]. Web site: http//home.earthlink.net/~morewitz/ Contact Dr. Steve Morewitz. Sexual harassment and disability. Evaluates sexual harassment policies and procedures, sexual harassment impact, disability, rehabilitation, and quality of life losses. Provides other experts. Eighteen years of experience. Professor and former dean. Author of four books and 70 other publications. Outstanding Scholar Book Award and other honors. PERSONNEL SYSTEMS ASSOCIATES, INC. 7551 East Moonridge Lane, Anaheim, CA 92808, (714) 281-8337, fax (714) 281-2949, e-mail: mding @personnelsystems.com. Web site: www.personnelsystems .com. Contact Mae Lon Ding, MBA, CCP. Expert witness in employment, business dispute, disability, and divorce cases involving issues of employee or owner compensation, discrimination, wrongful termination, exemption from overtime, labor market/employability, lost wages/benefits, employee performance, and evaluation of personnel policies and practices. Nationally recognized human resource management and compensation consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, Business Week, Workforce, and Working Woman. Over 14 years of testifying in cases involving major national organizations in a large variety of industries involving multiple plaintiffs. MBA, Certified Compensation Professional. EMPLOYMENT/WAGE EARNING CAPACITY CALIFORNIA CAREER SERVICES 6024 Wilshire Boulevard, Los Angeles, CA 90036, (323) 933-2900, fax: (323) 933-9929, [email protected]. Web site: www.californiacareerservices.com. Contact Susan W. Miller, MA. Vocational examinations/labor market research and testimony on employability and earning capacity as well as educational options in divorce and wrongful termination cases. PERSONNEL SYSTEMS ASSOCIATES, INC. 7551 East Moonridge Lane, Anaheim, CA 92808, (714) 281-8337, fax (714) 281-2949, e-mail: mding @personnelsystems.com. Web site: www.personnelsystems .com. Contact Mae Lon Ding, MBA, CCP. Expert witness in employment, business dispute, disability, and divorce cases involving issues of employee or owner compensation, discrimination, wrongful termination, exemption from overtime, labor market/employability, lost wages/benefits, employee performance, and evaluation of personnel policies and practices. Nationally recognized human resource management and compensation consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, Business Week, Workforce, and Working Woman. Over 14 years of testifying in cases involving major national organizations in a large variety of industries involving multiple plaintiffs. MBA, Certified Compensation Professional. ENGINEERING ACORN CONSULTING SERVICES, LLC 2830 North Swan Road, Tucson, AZ 85712, (520) 3226150, fax (520) 327-0062, e-mail: billacorn@earthlink .com. Web site: www.acs-eng.com. Contact William R. Acorn. PE. Over 30 years’ experience as a consulting engineer providing value added technical consultation, forensic analysis, and expert testimony. Specializing in HVAC systems, cleanrooms, piping and refrigeration systems, building and fire codes, design and construction issues, and hazardous occupancies. Successfully represent plaintiffs, defendants and insurers in court, arbitration and mediation settings with claims up to $250 million. ACS provides a unique combination of practical, theoretical, and teaching experience to support your litigation needs. Insurance Bad Faith Expert Clinton E. Miller, J.D., BCFE Author: How Insurance Companies Settle Cases 39 YEARS EXPERIENCE Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide • Coverage Disputes • Customs and Practices in the Claims Industry • Good Faith/Bad Faith Issues (408) 279-1034 ■ FAX (408) 279-3562 Matthew Lankenau 213-996-2549 [email protected] URS is the nation’s largest engineering, consulting and construction services firm. URS specializes in the resolution of construction disputes. Dispute Resolution & Forensic Analysis Design/Construction Claims Environmental Claims Bid/Cost/Damage Analysis Construction Defect Analysis Delay/Acceleration/Disruption Analysis Expert Witness Testimony Insurance/Bond Claims Technical Expertise Architecture Engineering Scheduling Construction Management Cost Estimating & Auditing Environmental Geotechnical BOARD CERTIFIED ORTHOPEDIC SURGEON MARC J. FRIEDMAN, M.D. 6815 Noble Avenue, Van Nuys, California 91405 Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected] Web Site: www.scoi.com Education: Princeton University and Cornell Medical School Certificate: Board Certified Orthopedic Surgeon Memberships: Fellowship Sports Medicine Fellow American Academy of Orthopedic Surgeons Fellow in the Arthroscopy Association of North America Fellow in the International Arthroscopy Association Fellow in the International Knee Society Fellow in the American Orthopedic Society of Sports Medicine ACL Study Group Certified QME, IME, AME Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of the Knee and Shoulder, and Knee Replacement Appointments: Assistant Clinical Professor, Division of Orthopedics, UCLA School of Medicine, Chairman, Education Committee Arthroscopy Association of North America 1997-1999 World Cup Soccer Team Physician, 1985 Physician Specialist XXIII Olympiad 1984 Orthopedic Consultant–New York Knicks and Jets 1978-1985 Publications: 60 Publications including handbook for Orthopedic Surgeons on Prosthetic Ligament Reconstruction of the Knee Presentations: Lectures extensively with over 375 presentations worldwide Los Angeles Lawyer November 2004 59 FORENSISGROUP 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA 91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site: www.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality experts in construction, engineering, product liability, safety, environmental, accident reconstruction, automotive, failure analysis, fires, explosions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scientific disciplines. We provide you with a select group of high-quality experts as expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 53. HICHBORN CONSULTING GROUP 1988 North Tustin Avenue, Orange, CA 92865, (714) 6377400, fax (714) 637-7488, e-mail: hichbornsr@hichborn. com. Web site: www.hichborn.com. Contact Geoffrey Hichborn Sr. General civil design with specialties featuring forensic investigations of concrete work and concrete products, concrete, cement and related materials expertise, construction practices and materials evaluation, repair recommendations, construction observation, public works/residential/commercial/industrial, and specially designed tests of distressed materials. ENGINEERING/GEOTECHNICAL COTTON, SHIRES AND ASSOCIATES, INC. 330 Village Lane, Los Gatos, CA 95030-7218, (408) 3545542, (408) 354-1852, e-mail: [email protected]. Web site: www.cottonshires.com. Contact Patrick O. Shires. Full service geotechnical engineering consulting firm specializing in investigation, design, arbitration, and expert witness testimony. Earth movement (settlement, soil creep, landslides, tunneling and expansive soil), foundation distress (movement and cracking of structures) drainage and grading (seeping slabs and ponding water in crawlspace), pavement and slabs (cracking and separating), retaining walls (movement, cracking and failures), pipelines, flooding and hydrology, design and construction deficiencies, expert testimony at over 64 trials in southern and northern California and Hawaii. ENVIRONMENTAL THE CAPANALYSIS GROUP, LLC 550 South Hope Street Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, Ph.D. Specialties: 1. Valuation of environmental liabilities and other legal claims using a decision tree approach that produces an accurate representation of liability cost versus the probability of those costs being incurred. 2. Provision of crucial information to help ensure that products or services meet the environmental, health, and safety requirements of the jurisdictions in which they do business. 3. Staff of Washingtonbased regulatory analysts monitor federal and state regulatory developments and interact with government officials to explain the interests of their clients. Degrees/license: hydrogeology, geology, environmental scientists. HARGIS + ASSOCIATES, INC. 2365 Northside Drive, Suite C-100, San Diego, CA 92108, (800) 554-2744, (619) 521-0165, fax (619) 521-8580, e-mail: [email protected]. Web site: www.hargis.com. Contact David R. Hargis, PhD, RG. Expert witness testimony, technical consultation, and litigation support concerning hydrogeologic assessments to evaluate groundwater supply, basin studies, nature/extent of soil/groundwater contamination, source identification, identification of potentially responsible parties, cost allocation studies, and negotiations with USEPA and state regulatory agencies involving cleanup levels and approval of RI/FS/RD/RA documents for various state and federal Superfund sites. See display ad on page 63. 60 Los Angeles Lawyer November 2004 PACIFIC HEALTH & SAFETY CONSULTING, INC. 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065, e-mail: [email protected]. Web site: www.phsc-web .com. Contact Tim Morrison. Providing quality consultation and expert witness for mold, bacteria, lead, and asbestos. Certified training for all health and safety OSHA, AQMD and FPT regulations. See display ad on page 64. ZYMAX FORENSICS 71 Zaca Lane, San Luis Obispo, CA 93401-7300, (800) 644-4696, ext. 308, fax (805) 544-8226, e-mail: forensics @zymaxusa.com. Web site: www.zymax.net/308. Contact Alan Jeffrey, sr. geochemist. Services: environmental forensics and geochemistry consulting, litigation support, and expert witness testimony. Specialties: petroleum hydrocarbon analysis, gas geochemistry, biomarkers, PNAs, PCBs, oxygenates, fuel ID, mixing ratios, age dating, metal analysis by ICP/MS, inorganic and wet chemistry, stable isotope analysis, hydrology, and geothermal analytical. See display ad on this page. ESCROW 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. EXPERT REFERRAL SERVICE 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 45. TASA 1166 DeKalb Pike, Blue Bell, PA 19422 (800) 523-2319, fax (800) 329-8272. Customized referrals to local, national, and global experts. Reduce search time to minutes. Thousands of experienced specialists in more than 9,500 categories of expertise, including more than 875 medical fields. Faxed resumes; risk-free screening phone calls. There is NO CHARGE FOR REFERRALS until you designate or engage an expert. Categories include accident reconstruction, business, construction, communication, engineering, economics, health care, intellectual property, malpractice, mold, OSHA, personal injury, product liability, safety, security, and toxicology. Plaintiff/defense; civil/criminal cases. ADR. Exceptional personal service since 1961. Contact the most experienced expert and consultant source. WE HAVE YOUR EXPERT ®. Please see insert in this issue and display ad on page 68. EXPERT WITNESS AMFS, INC. (AMERICAN MEDICAL FORENSIC SPECIALIST) 2640 Telegraph Avenue, Berkeley, CA 94704, (800) 275-8903, (510) 549-1693, fax (510) 486-1255, e-mail: [email protected], Web page: www.amfs.com. Contact Barry Gustin, MD, MPH, FACEP. AMFS is a physician and attorney managed company that provides initial in-house case screenings by 72 multidisciplinary physician partners. Medical experts are matched to meet case requirements by AMFS Physician Partners from our panel of over 3,500 carefully prescreened board-certified practicing specialists in California. All recognized medical specialties. Plaintiff and defense. Fast, thorough, objective, and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts. “A 92 percent win record” –California Lawyer magazine. See display ad on page 66. EXPERT WITNESS WEB SITES EXPERT4LAW—THE LEGAL MARKETPLACE (213) 896-6561, fax (213) 613-1909, e-mail: forensics @lacba.org. Web site: www.expert4law.org. Contact Melissa Algaze. Still haven’t found who you’re looking for? Click here! expert4law—The legal Marketplace is the best online directory for finding expert witnesses, legal consultants, litigation support, lawyer-to-lawyer networking, dispute resolution professionals, and law office technology. This comprehensive directory is the one-stop site for your legal support needs. Available 24/7/365! Brought to you by the Los Angeles County Bar Association. FAILURE ANALYSIS KARS ADVANCED MATERIALS, INC. Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for Metals and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 63. G. GOVINE CONSULTING Developing the Workforce for the 21st Century LITIGATION CONSULTANT AND EXPERT WITNESS: EMPLOYMENT SPECIALIZES IN: ✔ SEXUAL HARASSMENT ✔ EMPLOYMENT DISCRIMINATION: AGE, RACE, SEX ✔ HUMAN RESOURCES AND EMPLOYMENT PRACTICES ✔ WRONGFUL TERMINATION ✔ DEPOSITION PREPARATION ✔ MEDIATION DR. GERDA GOVINE 260 N. MAR VISTA, SUITE NO. 2 PASADENA, CA 91106 TEL: 626/564-0502 FAX: 626/564-8702 800-564-0501 www.govineconsults.com FAMILY LAW COHEN, MISKEI & MOWREY LLP 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 41. GLENN M. GELMAN & ASSOCIATES, CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS 1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com. Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. GURSEY, SCHNEIDER & CO., LLP 10351 Santa Monica Boulevard, Suite 300, Los Angeles, CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected]. Web site: www.gursey.com. Contact David Swan, or Stephan Wasserman. Forensic accounting and litigation support services in the areas of marital dissolution, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurLos Angeles Lawyer November 2004 61 ance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 55. testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. an unequalled record of successful court cases and client recoveries. See display ad on page 2. HARGRAVE & HARGRAVE 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard .com. Web site: www.taxwizard.com. Contact Terry M. Hargrave, CPA/ABV, CFE. Litigation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law Section, business valuation instructor for California CPA Foundation and AICPA. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic accounting work. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. HAMILTON, RABINOVITZ & ALSCHULER, INC. 2800 28th Street, Suite 325, Santa Monica, CA 90405, (310) 581-0900, fax (310) 581-0910. Contact Paul J. Silvern, partner. 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. KRYCLER, ERVIN, TAUBMAN, & WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, 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 72. DIANA G. LESGART, CPA, CFE, AN ACCOUNTANCY CORP. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 @msn.com. Contact Diana G. Lesgart, CPA, CFE. Specialized accounting and litigation support services in the areas of family law litigation, tracing of assets, pension plan tracing, forensic accounting, business valuation, goodwill, expert testimony, commercial litigation, fraud investigations, economic damages, and real estate litigation. Over 20 years’ accounting experience with 16 years’ litigation support specialization. Expert is fully English/Spanish bilingual. LEWIS, JOFFE & CO, LLP 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, and trust and income tax services. MIOD AND COMPANY, LLP CPAS 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @miod-cpa.com. 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 Institute of CPAs, and California Society of CPAs. See display ad on page 72. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness 62 Los Angeles Lawyer November 2004 FINANCE SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. FINANCIAL 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. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations. MIOD AND COMPANY, LLP CPAS 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @miod-cpa.com. 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 Institute of CPAs, and California Society of CPAs. See display ad on page 72. FIRE/EXPLOSIONS THE MCMULLEN COMPANY, INC. 1260 Lake Boulevard, Suite 250, Davis, CA 95616, (530) 757-1291, fax (530) 757-1293, e-mail: [email protected]. Web site: www.themcmullencompany.com. Contact James F. McMullen. Former California state fire marshal. Fire/building code analysis, code compliance inspections, fire cause and origin investigation, fire services management review, emergency management planning and training, hazardous materials programs, and fire safety-related product analysis. Forensic fire expert and litigation consultation. RIMKUS CONSULTING GROUP, INC. 333 City Boulevard West, Suite 1805, Orange, CA 92868, (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski @rimkus.com. Web site: www.rimkus.com. Contact Curt Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable investigations, reports and expert witness testimony around the world. Our engineers and consultants analyze the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure analysis, foundation investigations, industrial accidents and explosions, water intrusion analysis, geotechnical evaluations, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical failure analysis, and video/graphics computer animation. See display ad on page 69. FORENSIC ACCOUNTING BALLENGER, CLEVELAND & ISSA, LLC 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA 90024, (310) 873-1717, fax (310) 873-6600. Contact Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive in-court testimony regarding complicated accounting, 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 47. DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www.dmavalue.com. Contact Wes Nutten, Aaron Amster, or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 50. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. GUMBINER, SAVETT INC. 1723 Cloverfield Boulevard, Santa Monica, CA 90404, (310) 828-9798, fax (310) 829-7853, e-mail: rgreene @gscpa.com. Contact Ronald S. Greene, 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 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Contact Nancy Kearson. Specialties: solid, cost-effective, timely expert witness and consultation services, investigative forensic accounting, asset tracing, loss of earnings calculations, partnership and shareholder disputes, business valuation, and professional practice appraisal. Director, California Society of CPAs-LA. Immediate past Officer, Family Law Section. Licenses and accreditations: Certified Public Accountant, Accredited in Business Valuation, Certified Valuation Analyst, Diplomate of the American Board of Forensic Accountants. FRAUD INVESTIGATIONS DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 1485 Enea Court, Suite 1330, Concord, CA 94520, (925) 674-3668, fax (925) 674-3669. Web site: www.dmavalue.com. Contact Wes Nutten, Aaron Amster, or Madeleine Mamaux. THE BEST LEGAL MINDS IN THE COUNTRY TALK TO US • Metallurgical Failures • Corrosion & Welding Failures • Glass & Ceramic Failures • Chairs / Ladders / Tires • Automobile/Aerospace/ Accidents Contact: • Bio-Medical/Orthopedic Implants • Plumbing/Piping/ABS Failures • Complete In-House Laboratory Testing & Analysis Facilities • Expert Witnesses/Jury Verdicts • Licensed Professional Engineers Dr. Naresh Kar, Fellow ASM, Fellow ACFE Dr. Ramesh Kar, Fellow ASM, Fellow ACFE ADVANCED MATERIALS, INC. Testing & Research Labs 2528 W. Woodland Drive Anaheim, CA 92801 ■ TEL: (714)527-7100 ■ FAX: (714)527-7169 ■ www.karslab.com ■ email: [email protected] Los Angeles Lawyer November 2004 63 EXPERT – PSYCHIATRY JEFF SUGAR, MD Child, Adolescent & Adult Psychiatrist Associate Clinical Professor, UCLA A practicing psychiatrist for 15 years, he is board certified in child and general psychiatry. He is Past President of the Southern California Society of Child and Adolescent Psychiatry and Associate Clinical Professor at UCLA. As founding director of research at Hathaway Children and Family Services he led a study of the long-term effects of trauma. Currently Chief of Child Inpatient at Kedren Community Health Center and in private practice-general and child psychiatry. Dr. Sugar’s reports and/or testimony have had an impact in cases (both child and adult) involving: • Trauma: Sexual and Physical Abuse (with or without PTSD) • Personal Injury and Workers’ Compensation • Psychiatric Medication Issues • Diagnosis and Appropriate Treatment • Ethical issues and Stress in Legal Practice • Battered Woman’s Syndrome • Child Custody –FREE Initial Telephone Consultation with Attorney– ATTORNEY REFERENCES AND/OR REDACTED PAST REPORTS AVAILABLE ON REQUEST. TEL: (310) 322-6933 | E-MAIL: [email protected] 312 E SYCAMORE AVE, EL SEGUNDO, CA 90245 GARY ORDOG, MD (FACEP, FAACT, FABME, FABFE, FABPS) 23206 LYONS AVE., SUITE 104, SANTA CLARITA, CA 91321 PHONE: (661) 799-1689 ■ FAX: (661) 799-3453 E-MAIL: [email protected] ■ WEBSITE: http://dwp.bigplanet.com/toxic Board Certified in: ■ ■ ■ ■ ■ ■ ■ ■ American Board of Emergency Medicine American College of Emergency Physicians American Board of Medical Toxicology American Board of Forensic Examiners American Board of Medical Examiners American Board of Psychological Specialities (Traumatic Stress and Disability Assessment) Residency and Fellowship trained Wound ballistics, gunshot wounds, taser injuries. 64 Los Angeles Lawyer November 2004 ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Professor of Medicine, UCLA– 1985-1997 Board Examiner, American Board of Emergency Medicine, 1984-2000 25 years experience Full-time, front-line physician 42 text books 800+ Articles 2,000+ cases reviewed 300+ depositions 100+ trials Stachybotrys, mold Criminal and civil; defense & plaintiff 50/50 Medical consultation and treatment, case review, expert witness Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 50. STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: [email protected]. Web site: www.sjaccounting .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a California-based certified public accounting and business advisory firm founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 9. HEALTHCARE SINAIKO HEALTHCARE CONSULTING, INC. 1100 Glendon Avenue, Suite 1800, Los Angeles, CA 90024, (310) 826-4935, fax (310) 826-4212, e-mail: jeff @sinaikohc.com. Web site: www.sinaikohc.com. Contact Jeff Sinaiko. Sinaiko is a nationally recognized healthcare consulting firm. Our professionals are handpicked for their broad understanding of the industry, detailed expertise and superior communication skills. Clients have found this expertise invaluable in litigation support where there is no substitute for experience. Sinaiko’s litigation support practice includes, among others, industry standard practices evaluations: Medicare/ Medicaid fraud; provider/payor payment disputes; business valuation; transaction disputes; and facility and professional fee billing. HEIR SEARCH SERVICE AMERICAN RESEARCH BUREAU Offices in Los Angeles, Salt Lake City, Fort Lauderdale, and New York. (800) 628-7221, fax (800) 446-2626, e-mail: [email protected]. Web site: www.arb.com. Contact Thomas Nelson. International probate research since 1935. American Research Bureau (ARB) identifies and locates missing and unknown heirs. ARB performs a complimentary initial evaluation, provides a written quote with deadline and prepares all needed documentation, including certified records, a genealogical chart, and declarations. Fees can be structured in various ways to best meet the needs of your situation. CA State licensed PI # 11726. Service area: United States and most foreign countries. HOTEL MAURICE ROBINSON & ASSOCIATES LLC 880 Apollo Street, Suite 125, El Segundo, CA 90245, (310) 640-9656, fax (310) 640-9276, e-mail: maurice @mauricerobinson.com. Web site: www.mauricerobinson .com. Contact R. Maurice Robinson, president. Hotel and real estate industry business issues, including market, economic and financial feasibility, valuation, and disputes between owner-operator, borrower-lender, and franchisor-franchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment analysis. HUMAN FACTORS D. WYLIE ASSOCIATES P.O. Box 60836, Santa Barbara, CA 93160, (805) 6819289, 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 page 50. HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations. INFERTILITY GIL N. MILEIKOWSKY, MD Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) 981-1888, fax (310) 858-1303 or fax (818) 981-1994. Web site: www.baby4you.net. Contact Gil N. Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate, board certified by the American Board of OB/GYN. Board eligible, American Board of Reproductive Endocrinology Division. Fellow, American College of OB/GYN. Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge Hospital and member of the Los Angeles County Medical Association. Author, numerous scientific papers and articles published in peer review journals. Clinical instructor at USC. Clinical assistant professor, OB/GYN at UCLA. See display ad on page 76. INSURANCE ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. 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. BARRY ZALMA, INC.; ZALMA INSURANCE CONSULTANTS 4441 Sepulveda Boulevard, Culver City, CA 90230, (310) 390-4455, fax (310) 391-5614, e-mail: [email protected]. 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. THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. 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 50. 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. LIBRX 2050 Pioneer Court, Suite 200E, San Mateo, CA 94403, (650) 356-0440, fax (650) 356-0550, e-mail: beg@librx .com. Web site: www.librx.com. Contact Brian E. Gagan, CPCU, senior consultant. Expert witness, litigation consultant on property and casualty coverages, broker services/duties. Experience: underwriting, 7 years; brokerage, 25 years; currently active as a risk management consultant for corporations and public entities. Past president Society of Insurance Brokers, CA Insurance Broker’s License. CLINTON E. MILLER, JD, BCFE 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 59. THOMAS & ELLIOTT 12400 Wilshire Boulevard, Suite 400, Los Angeles, CA 90025, (310) 571-2727, fax (310) 207-0900, e-mail: [email protected]. Web site: www.thomasandelliott.com. Contact Deborah Stone. Coverage analysis of liability, property, auto, malpractice, health, disability, life, title, and fidelity insurance. Duty to defend, reservation of rights, Cumis, bodily injury, property damage, business torts, privacy, bad faith, reasonableness of attorney’s fees, and defense cost reimbursement claims. INSURANCE BAD FAITH M & Z CLAIMS SERVICE INC. 18032-C Lemon Drive, PMB 164, Yorba Linda, CA 92886, (714) 777-4462, fax (714) 777-4507, e-mail: manoz @pacbell.com. Web site: www.insuranceclaimsepert.com. Contact Frank T. Zeigon. Specializing in claim handling custom and practice, claim adjusting, coverage interpretation, SIU practices, and auditing procedures. This includes complex claim handling issues, and claim community standards. Mr. Zeigon has served as an expert witness, appraiser/umpire, and mediator. Mr. Zeigon is experienced in auto, general liability, and property claims. INTELLECTUAL PROPERTY SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. INTERNAL MEDICINE/PULMONARY STEVEN M. SIMONS, M.D. 435 North Roxbury Drive, Suite 311, Beverly Hills, CA 90210, (310) 274-7303, fax (775) 249-8082, e-mail: [email protected]. Web site: www.simonsmd.com. Pulmonary diseases, critical care, internal medicine. Twenty years’ experience—defense and plaintiff. Particular interests include asthma, pulmonary embolism, and deep venous thrombosis pneumonia. Clinical professor, UCLA, former chief of staff, chief of pulmonary, chief of medicine—Cedars-Sinai. INVESTIGATIONS BENCHMARK INVESTIGATIONS 32158 Camino Capistrano, # A-415, San Juan Capistrano, CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: [email protected]. Web site: www .BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency. Professional investigations with em- Los Angeles Lawyer November 2004 65 Serving Attorneys Since 1990 AMFS provides the most experienced MEDICAL EXPERTS for your case. EVALUATION ■ TESTING ■ TREATMENT phasis upon accuracy, detail, and expedience. Asset/financial searches, background investigation, DMV searches, domestic/marital cases, due diligence, process service, surveillance/photograph, witness location, and statements. LA branch plus correspondents nationwide. Multilingual agents. Fully insured. Neurology and Electromyography FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. Neurotoxicology Occupational/Environmental Medicine Tried and True Approach… IDENTIFY: AMFS staff physicians provide free phone consultations and collaborate to screen your case for a reasonable flat fee. SELECT: ■ 415.381.3133 / FAX 415.381.3131 [email protected] www.neoma.com TEL E-MAIL AMFS staff physicians & attorneys provide Experts matched specifically to your case from our pre-screened panel of Board-Certified specialists, nationwide. ANALYZE: AMFS Experts "call it as they see it" assuring "beyond a doubt" objectivity... and cases are reviewed quickly! TESTIFY: AMFS Experts will testify in support of their unbiased opinions. San Francisco "AMFS bridges law and medicine… more than 7,500 specialists in more than 80,000 cases since 1990 in medical negligence, hospital and managed care liability, personal injur y, product liability, and toxic tor ts for plaintiff and defendant" Sacramento Petaluma Richmond NCE EXPERIE ENCE FER THE DIF Speak to one of our staff physicians with Eureka just one phone call — at no charge to you. 1-800-275-8903 [email protected] www.amfs.com www.medicalexperts.com JONATHAN S. RUTCHIK, MD, MPH 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 A Consulting Group Managed by Attorneys and Physicians ROBERT D. JONES INVESTIGATIONS 263 West Olive, Suite 330, Burbank, CA 91502, (818) 2095455, fax (818) 558-5900, e-mail: bjonespi2002@yahoo .com. Contact Bob Jones. Investigative services for attorneys, insurance companies, corporations, and individuals. Services include subrosa, AOE/COE, background checks, asset search, and fraud. Other services include domestic/spousal investigations, interviews and witness statements. SPECIALIZED INVESTIGATIONS 14530 Delano Street, Van Nuys, CA 91411, (818) 9099607, fax (818) 782-3012, e-mail: [email protected]. Web site: www.specialpi.com. Contact Richard Harer. Trial preparation, locates, computer forensics, statements, insurance, workers’ compensation, surveillance, employment/labor, civil, criminal, asset searches, background checks, and information services. In business since 1982. Spanish- and Korean-speaking investigators. LANDSCAPE ARCHITECTURE Over 35 years research and diverse expert witness experience. Accident Reconstruction For those who seek the highest quality ● LIGHTING & ILLUMINATION Light Intensity measurements, visual perception, times of sunset, twilight, moonrise/set. ● PRODUCT FAILURE ANALYSIS Medical devices, glass, chairs (all types), ladders. workmanship from a qualified expert. ● BIOMECHANICS Head, neck, spine, and rotator cuff injuries ● TRAFFIC ACCIDENT RECONSTRUCTION Cars, trucks, pedestrian, bicycle. ● FALL FROM HEIGHT Stairways, balconies, platform, theatre pit, pole, ladders, chairs. ● SLIP & FALL Scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. For a State of the art equipment and test facility. FREE consultation call (714) 526-6661 Fred M. Johnson, Ph.D Professor of Physics, Fellow Am. Physical Society, Consultant to ANSI/BIFMA, Member SAE, ASTM, SATAI, & ICC, Author Textbook + 60 scientific publications. TELEPHONE (714) 526-6661/FAX (714) 526-6662 POST OFFICE BOX 3011, FULLERTON, CALIFORNIA 92831 66 Los Angeles Lawyer November 2004 RON KAMMEYER & ASSOCIATES, INC. 2837 Kellogg Avenue, Corona, CA 92881, (951) 3712444, fax (951) 371-4719, e-mail: [email protected]. Web site: www.kammeyer.com. Contact Ken Kammeyer, CLARB. Forensic landscape architects. Landscape construction, water use, irrigation CIMIS studies, ground maintenance, agriculture, turf grass management, site drainage, erosion control, and playground safety. Past president California State Board of Landscape Architects, faculty at council UCLA extension, 32 years. LAW ENFORCEMENT/SECURITY DANIEL R. SULLIVAN, DEPUTY CHIEF, LAPD, RET. 76766 Daffodil Drive, Palm Desert, CA 92211, (818) 590-2486, e-mail: [email protected]. Web site: www.investigativeservices.com. Contact Dan Sullivan. Expert witness—use of force/police practices, event/facility security—consultant to cities of Los Angeles, Beverly Hills, U.S. Department of Justice. Qualified as expert over 150 times in superior/federal courts. LEGAL/CORPORATE LAW B. KEITH MARTIN ROGERS, SHEFFIELD & CAMPBELL, LLP 427 East Carrillo Street, Santa Barbara, CA 93101, (805) 963-9721, fax (805) 966-3715, e-mail: kmartin@rshlaw .com. Contact B. Keith Martin. Thirty-five years in the boardroom. Corporate law expert for consulting or testimony. Deadlock, buy/sell enforcement, D and O liability and indemnification, securities law in private corporations, removal of directors, cumulative voting, provisional directors, stock options/purchase plans, capital structure, recapitalization, mergers, acquisitions, dissenter’s rights, in- voluntary dissolution. USC Law Review. Caltech BSEE. Published author. Member, State Bar Corporations Committee. See display ad on page 40. LEGAL MALPRACTICE PHILLIP FELDMAN, BS, MBA, JD 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 91403-3287, (310) LEG MALP (534-6257), fax (818) 9861757, e-mail: [email protected]. Web site: www .legalmalpracticeexperts.com. Contact Phillip Feldman, BS, MBA, JD. Board certified in professional negligencelegal et al by CA, ABA, ABPLA. Former Judge Pro Tem, State Bar Prosecutor, Fee Dispute Arbitrator. Thirty-seven years as litigator/transactional attorney, supervising partner. Never failed to qualify or disqualified, and 23 years as expert. Any standard of care, conduct, causation, fiduciary duty or fee dispute issues. Any transaction. Any litigation. Any underlying case. (Also defends lawyers before the State Bar). BOYD S. LEMON 330 Washington Boulevard, Suite 420, Marina del Rey, CA 90292, (310) 827-0840, fax (310) 827-7890. Contact Boyd S. Lemon. Experienced expert witness in legal malpractice and attorney fee dispute cases, 38 years of business trial experience, extensive malpractice litigation experience, retained expert witness in over 600 cases, former litigation department chairman major law firm, State Bar disciplinary committee, and court appointed mediator and arbitrator. See display ad on page 57. LITIGATION THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax: (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. 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 financial services. NEUROLEGAL SCIENCES, INC. 4222 East Thomas Road, Phoenix, AZ 85018, (480) 659-7771, fax (602) 667-9101, 1855 San Miguel Drive, Suite 23, Walnut Creek, CA 94596 (925) 933-5594, e-mail: [email protected]. Web site: www .neurolegalsciences.com. Contact Dr. Catherine Klee. Medical and legal records review; neuropsychological evaluations; consistency analysis (determination of weak vs. strong points of case); case analysis supported by scientific literature; assistance with requests for production and interrogatories; accompany your client to independent medical evaluations; selection of experts; preparation of case specific deposition inquiry for use with opposing experts; attendance; at opposing expert(s) deposition(s); arrange, conduct and attend focus group(s); assistance with preparation of settlement video, preparation of Daubert challenge(s) and motion in limine; preparation of case-specific direct and cross examination inquiry; medical and lay witness preparation; trial theme preparation; and voir dire/jury selection. Service area is nationwide. See display ad on this page. SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: 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. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 6. Los Angeles Lawyer November 2004 67 TASA Has Your Medical Expert. MECHANICAL ENGINEERING CTG FORENSICS, INC. 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) 790-0010, fax (949) 790-0020, e-mail: mlewis @CTGforensics.com. Web site: www.CTGforensics.com. Contact Dr. Malcolm Lewis, PE. Construction related engineering, plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, construction claims, and mold. MEDICAL/ • Thousands of Local and National Experts • More than 875 health care specialties from Acupuncture to X-Ray • NO CHARGE for referrals until you designate or engage an expert • Exceptional service Behrooz (Bruce) Broukhim, M.D. AMFS, INC. (AMERICAN MEDICAL FORENSIC SPECIALIST) 2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255, e-mail: [email protected], Web page: www.amfs.com. Contact Barry Gustin, MD, MPH, FACEP. AMFS is a physician and attorney managed company that provides initial in-house case screenings by 72 multidisciplinary physician partners. Medical experts are matched to meet case requirements by AMFS Physician Partners from our panel of over 3,500 carefully prescreened board-certified practicing specialists in California. All recognized medical specialties. Plaintiff and defense. Fast, thorough, objective, and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts. “A 92 percent win record” –California Lawyer magazine. See display ad on page 66. BEHROOZ (BRUCE) BROUKHIM, MD 10640 Riverside Drive, North Hollywood, CA, 9763 West Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310) 552-1488 (LA), fax (818) 980-7144. Contact Bruce Broukhim, MD. Board-certified orthopedic surgeon. Shoulder, knee, and hip surgery, arthroscopic surgery, neck and back injury evaluation and treatment, personal injury, workers’ compensation, QME, IME, and AME. Member: American Academy of Orthopedic Surgeons, American Board of Ortho Surgeons, Arthroscopic Association of North America, International Society of Arthroscopy, Knee Surgery and Ortho Sports Medicine. Twenty years of experience in orthopedic medical legal work and expert testimony. See display ad on page 68 Board Certified Orthopedic Surgeon ■ Shoulder, knee & hip surgery ■ Arthroscopic surgery ■ Neck & back injury eval. & treatment ■ Personal injury ■ Workers’ Compensation ■ QME, IME, AME MEMBER: – – – – Am. Academy of Orthopedic Surgeons American Board, of Ortho Surgeons Arthroscopic Assn. of North America International Society of Arthroscopy, Knee Surgery & Ortho Sports Medicine LACMA – CMA 818-755-6500 TEL 310-552-1488 (L.A.) 818-980-7144 FAX 10640 Riverside Dr., North Hollywood, CA 9763 W. Pico Blvd., Los Angeles, CA 20 YEARS EXPERIENCE IN ORTHO. MED. LEGAL WORK AND EXPERT TESTIMONY 68 Los Angeles Lawyer November 2004 MELVIN BRODY, MD 9400 Brighton Way, Suite 201, Beverly Hills, CA 90210, (310) 271-6229, fax (310) 271-9139. Contact Melvin Brody, MD. General internal medicine, experience with state board of medical examiners. Criminal and civil. Clinical professor medicine, UCLA School of Medicine. Private practice. TASAMED Customized referrals in all practice areas. 1166 DeKalb Pike, Blue Bell, PA 19422 (800) 523-2319; fax (800) 3298272. FIND JUST THE MEDICAL EXPERT YOU NEED. Access local, national, and global specialists for case review IME’s, litigation support, and testimony in over 875 medical/health care fields. Save valuable search time. Categories include anesthesiology, cardiology, DNA, emergency care, forensic pathology, hospital administration, managed care, medical equipment, mold, nursing, oncology, orthopedics, pediatrics, psychiatry, sports medicine, surgery, toxicology, many more. Plaintiff, defense. Exceptional personal service for over 43 years. NO CHARGE FOR REFERRALS until you designate or engage an expert. Please see our insert in this issue and display ad on this page. MEDICAL/DERMATOLOGY STANLEY M. BIERMAN, MD, FACP 2080 Century Park East, #1008, Los Angeles, CA 90067, (310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd @aol.com. Contact Stanley Bierman, MD. Dr. Bierman is an expert witness in matters relating to diagnosis and treatment of skin cancers as well as matters relating to sexually transmitted diseases. Dr. Bierman is Honorary Associate professor of medicine and past President of Los Angeles Dermatologic Society. MEDICAL/EMERGENCY MEDICINE BRUCE WAPEN, MD EMERGENCY MEDICINE EXPERT 969-G Edgewater Boulevard, Suite 807, Foster City, CA 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: [email protected]. Web site: www.DrWapen .com. Contact Bruce Wapen, MD. Board-certified emergency physician and experienced public speaker offers consultation, chart review, and testimony as an expert witness for plaintiff or defense involving litigation arising from the emergency department. See display ad on page 70. MEDICAL/NEUROLOGY ROGER V. BERTOLDI, MD 8610 South Sepulveda Boulevard, Suite 200, Los Angeles, 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-anatomicalfunctional (PET, brain-mapping, neuropsychological) workup and treatment. Diplomate (ABPN) qualification in clinical neurophysiology: electrodiagnostics of electromyography (EMG), electroencephalography (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, somatoform disorders, epilepsy, dementia, headache, assistant clinical professor of neurology, UCLA, AME, QME, IME. MEDICAL/NEUROLOGY/PERSONAL INJURY ANDREW WOO, MD, PHD 2021 Santa Monica Boulevard, Suite 525-E, Santa Monica, CA 90404, (310) 829-2126, fax (310) 998-8887, e-mail: [email protected]. Contact Gail. Board-certified neurology, clinical assistant professor UCLA, personal injury, pain, carpal tunnel, spine, memory, seizure, sleep, and clinical protocols. Multiple sclerosis, migraine, and stroke. Education: AB Cornell University, MD and PhD Brown University; residency + EMG/EEG fellowship UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s Sleep Lab; honors: Who’s Who in Medicine (2001) and science/engineering (1993), international electrophysiology Young Investigator (1997), UCLA Neurology Teaching Awards (1994, 1996), American Academy Neurology Research (1991), Brown University Sigma XI (1989), and research/publications (14), lectures (171). 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 years. Represented physicians before California Medical Board when requested by attorneys. Degrees/licenses: MD. MEDICAL/PLASTIC AND COSMETIC RECONSTRUCTIVE SURGERY JOHN M. SHAMOUN, MD, FACS, INC. 360 San Miguel, Suite 406, Newport Beach, CA 92660, (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun @aol.com. Web site: www.ideallook.com. Contact Yvonne. Specialties: only plastic surgeon in the United States board certified by the 1) American Board of Surgery, 2) American Board of Plastic Surgery, 3) American Board of Facial Plastic and Reconstructive Surgery, and 4) American Board of Forensic Medicine. Extensive experience in all aspects of cosmetic, plastic, and reconstructive surgery of the breast, nose, face, eye, and body. Well-published author of several textbook chapters and journal articles related to above topics. Extensive experience in medical malpractice case review, consultation, written evaluation and testimony in depositions and trial for plaintiff and defense. Articulate subspecialty consultant with up-to-date knowledge and expertise of plastic surgery literature and standards of care. Opinions supported by extensive subspecialty education, training, and experience. JONATHAN S. RUTCHICK, MD, MPH, QME 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch @neoma.com. Web site: www.neoma.com. Jonathan S. Rutchik, MD, MPH is a physician who is board certified in both Neurology and Occupational and Environmental Medicine. He provides clinical evaluations and treatment, including electromyography, of individuals and populations with suspected neurological illness secondary to workplace injuries or chemical exposure. Services include medical record and utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics such as metals and solvents, mold illness, Baychol issues, Persian Gulf War syndrome, musicians’ injuries, and others. See display ad on page 66. MEDICAL MALPRACTICE LINEBACK, INC. 2100 North Main Street, Suite 202, Santa Ana, CA MEDICINE 92706, (714) 565-1012, e-mail: [email protected]. Contact James F. Lineback, MD. Internal medicine, chest medicine, occupational medicine, toxic exposure, death cases, diagnostic dilemmas, patient management, causation, and chart review. Twenty years of consulting/ expert witness experience in medical malpractice, personal injury, workers compensation (QME, AMA). Degrees/ license: MD, MS, FCCP, Board Certified Internal Medicine/Pulmonary Medicine. See display ad on page 71. METALLURGICAL AND CORROSION ENGINEER KARS ADVANCED MATERIALS, INC. Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered profes- JEFFREY KAUFMAN, MD 720 North Tustin Avenue, Suite 101, Santa Ana, CA 92705, (714) 973-4600, fax (714) 547-1259. Web site: www.urodocs.net. Contact Jeffrey Kaufman, MD. Urologic surgery. Extensive experience in urologic case review and testimony. Numerous articles published and presentations made. Sterilization and vasectomy, impotency, penile implants, urologic cancer treatment, urologic trauma, and urinary incontinence. Member and officer in numerous medical associations. Detailed C.V. available. BRUCE WAPEN, MD EMERGENCY MEDICINE EXPERT 969-G Edgewater Boulevard, Suite 807, Foster City, CA 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: [email protected]. Web site: www.DrWapen .com. Contact Bruce Wapen, MD. Board-certified emergency physician and experienced public speaker offers consultation, chart review, and testimony as an expert witness for plaintiff or defense involving litigation arising from the emergency department. See display ad on page 70. LESTHER WINKLER, MD Encino-Tarzana Regional Medicine Center Pathologist. (consulting emeritus status) 10155 Topeka Drive, 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, medical staff privileges. Also experienced in hospital healthcare law, medical, hospital and “outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more than 10 years. Represented physicians before California Medical Board when requested by attorneys. Degrees/licenses: MD. MEDICAL TOXICOLOGY GARY J. ORDOG, MD P/Professor, UCLA/Drew School, 23206 Lyons Avenue, Suite 104, Santa Clarita, CA 91321, (661) 799-1689, fax (661) 799-3453, e-mail: [email protected]. Web site: http://dwp.bigplanet.com/toxic. Contact Gary J. Ordog, MD. Board-certified medical toxicologist. Boardcertified emergency medicine specialist. Medical/legal expert on environment exposures, stachybotrys and other building-related molds, poisonings, snake/insect/ animal bites, and fetal toxicology. Wound ballistics, gunshot wound and taser expert. Author of major textbook, Ellenhorn’s Medical Toxicology, the most significant reference text on this subject. Available for medical treatment, consultation, chart review, and expert witness. Degrees/license: MD (CA), FACEP, DABMT, FABFE, FABME. See professional announcement on page 64. Los Angeles Lawyer November 2004 69 sional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for Metals and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 63. METALLURGY KARS ADVANCED MATERIALS, INC. Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for Metals and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 63. ing services include case analysis/for merit, chronology, translation, written reports, medical record organization. DME/IME accompaniment including tape recording and written report. Expert witness and testifying services, including affidavit, arbitration, declaration, deposition, and trial. Class action and case management. Witness preparation for deposition or trial testimony. OBSTETRICS AND GYNECOLOGY GIL N. MILEIKOWSKY, MD Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) 981-1888, fax (310) 858-1303 or fax (818) 9811994. Web site: www.baby4you.net. Contact Gil N. Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate, board certified by the American Board of OB/GYN. Board eligible, American Board of Reproductive Endocrinology Division. Fellow, American College of OB/GYN. Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge Hospital and member of the Los Angeles County Medical Association. Author, numerous scientific papers and articles published in peer review journals. Clinical instructor at USC. Clinical assistant professor, OB/GYN at UCLA. See display ad on page 76. OIL & GAS FACILITIES NURSING MED-LINK 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) 333-5110, fax (626) 968-0064, e-mail: dorothypollock @adelphia.net. Contact Dorothy Pollock, LNCC. Registered nurse with 36 years’ clinical experience. Non-testify- RANDALL CONSULTANTS 960 Berry Avenue, Los Altos, CA 94024, (650) 960-1078, fax (650) 961-4050, e-mail: [email protected]. Contact Warren O. Carlson. Expert consultant for pipelines and oil and gas facilities. I am a graduate professional engineer with more than 40 years’ experience in — EMERGENCY design, procurement, construction, operations, and maintenance of petroleum facilities. This includes pipelines, pumps, storage tanks, meters, regulators, controls, and instruments. OPHTHALMOLOGY GLAUCOMA INSTITUTE BEVERLY HILLS 8733 Beverly Boulevard, Suite 301, Los Angeles, CA 90048, (310) 855-1112, fax (310) 855-1211, e-mail: berlin @ucla.edu. Web site: www.glaucoma-institute.com. Contact Michael S. Berlin, MD. Specializes in glaucoma, laser, and glaucoma clinical practice and research. Extensive experience as expert witness in medical malpractice, laser safety, products liability and workers’ compensation. Consultant for medical case development, case review, deposition, and malpractice analysis. Plaintiff and defense (medical malpractice and personal injury), medical-legal technical support. Director, Glaucoma Institute Beverly Hills. Clinical professor, UCLA Jules Stein Eye Institute, member of the American Academy of Ophthalmology, American Glaucoma Society, American National Standards Institute. Diplomate, American Board of Ophthalmology, American Society of Cataract and Refractive Surgery, American Society for Laser Medicine and Surgery. Widely published. Degrees/licenses: MD, MS Ophthalmology. ORTHOPEDIC SURGEON MARC J. FRIEDMAN, MD 6815 Noble Avenue, Van Nuys, CA 91405, (818) 9016600, fax (818) 901-6688, e-mail: [email protected]. Web site: www.scoi.com. Contact Lonna Collier. Orthopedic shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evaluations. See display ad on page 59. MEDICINE EXPERT — BRUCE WAPEN, MD, FACEP YOUR EXPERT FOR MALPRACTICE LITIGATION ARISING FROM THE EMERGENCY DEPARTMENT • 29 years in Emergency Medicine • Experience with cases for both plaintiff and defense • Accomplished at deposition and trial testimony • Teaching experience with Stanford, U.C. Davis, and Letterman Army Medical Center www.drwapen.com TEL (650) 577-8635 • FAX (650) 577-0191 9 6 9 - G E D G E WAT E R B O U L E VA R D # 8 0 7 , F O S T E R C I T Y, C A 9 4 4 0 4 - 3 7 6 0 70 Los Angeles Lawyer November 2004 GRAHAM A. PURCELL, MD, INC. Assistant Clinical Professor Orthopaedic Surgery, UCLA, 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985-3051, fax (818) 985-3049, e-mail: expert @gpurcellmd.com. Web site: gpurcellmd.com. Contact Graham A. Purcell, MD. Dr. Purcell is a board certified orthopedic surgeon, sub-specialty in spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell including disc diseases, stenosis, infections, tumors, injuries, and deformities including scoliosis. He possesses 24 years of orthopedic and 15 years of med-legal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public Defender’s office. Expert testimony pertains to med-mal, personal injury, and workers’ compensation cases. As qualified medical evaluator, Dr. Purcell has extensive experience in performing QMEs, AMEs, IMEs, WC evals. See display ad on page 72. RICHARD C. ROSENBERG, MD 18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356, (818) 996-6800, fax (818) 996-2929, e-mail:rcrnsx@aol .com. Web site: www.drrosenberg.com. Contact Sheri Roberts. Orthopedic surgery, sports medicine, and physical therapy. Experienced in IME, QME, agreed medical exams, med/legal reports, and expert witness testimony. Personal injury and workers’ compensation. Additional office in Oxnard, California. PEDIATRIC EXPERT WITNESS MICHAEL WEINRAUB, MD 201 Santa Fe Avenue, Suite 307, Los Angeles, CA 90012, (213) 742-0421, fax (213) 617-1187, e-mail: virtualmd @sbcglobal.net. Contact Michael Weinraub, MD. Consultation, litigation support ,and trial testimony for pediatric cases; malpractice, product liability, personal injury, child abuse, fostercare, developmental disabilities, and ADHD. PERSONAL INJURY NEUROLEGAL SCIENCES, INC. 4222 East Thomas Road, Phoenix, AZ 85018, (480) 659-7771, fax (602) 667-9101, 1855 San Miguel Drive, Suite 23, Walnut Creek, CA 94596 (925) 933-5594, e-mail: [email protected]. Web site: www .neurolegalsciences.com. Contact Dr. Catherine Klee. Medical and legal records review; neuropsychological evaluations; consistency analysis (determination of weak vs. strong points of case); case analysis supported by scientific literature; assistance with requests for production and interrogatories; accompany your client to independent medical evaluations; selection of experts; preparation of case specific deposition inquiry for use with opposing experts; attendance; at opposing expert(s) deposition(s); arrange, conduct and attend focus group(s); assistance with preparation of settlement video, preparation of Daubert challenge(s) and motion in limine; preparation of case-specific direct and cross examination inquiry; medical and lay witness preparation; trial theme preparation; and voir dire/jury selection. Service area is nationwide. See display ad on page 67. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties in- clude accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 49. PHYSICAL MEDICINE AND REHAB, PAIN MANAGEMENT HOLLYWOOD PAIN CENTER 1300 North Vermont Avenue, Suite 710, Los Angeles, CA 90027, (323) 953-2637, fax (323) 953-3520. Board certified in Physical Medicine and Rehabilitation. Board certified in Pain management. IME, QME, courtroom, and deposition experience. James F. Lineback, M.D., F.C.C.P. EXPERT WITNESS PLAINTIFF AND DEFENSE (20 YEARS) MEDICAL MALPRACTICE PERSONAL INJURY WORKERS’ COMPENSATION (QME, AME) PLASTIC AND COSMETIC RECONSTRUCTIVE SURGERY JEFFREY L. ROSENBERG, MD 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA 90017, (213) 977-0257, fax (213) 977-0501. Contact Martha. Plastic and reconstructive surgery, burn specialist. Diplomate, American Board of Plastic Surgery. Member, American Burn Association and American Society of Plastic Surgeons. ALFRED ROVEN, MD 5757 Wilshire Boulevard, Suite #6, Los Angeles, CA 90036, (323) 937-7733. Contact Alfred Roven, MD. Expert, both sides. Major trauma, burns, cosmetic problems, nasal—facial fractures, scars, deformities, consultation, treatment, records review, depositions, and court testimony. American Board of Plastic Surgery. American Board of Otolaryngology. POLYGRAPH JACK TRIMARCO & ASSOCIATES POLYGRAPH INC. 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA 90212, (310) 247-2637, fax (805) 383-9973, e-mail: [email protected]. Web site: www.jacktrimarco.com. Contact Jack Trimarco. Former manager of the Federal Bureau of Investigation’s polygraph program in Los Angeles. Former Inspector General Polygraph Program—Department of Energy. Nationally known and respected Polygraph Expert. I have the credentials you would want when you have a client polygraphed, a case reviewed, a motion made regarding polygraph, or an in-depth professional investigation. My unique background allows me to bring the highest levels of service and expertise to any polygraph situation. Degrees/licenses: BS Psychology; Certified APA, AAPP, CAPE, AAFE. See display ad on page 39. PROBATE LAW DARLING, HALL & RAE, LLP 520 South Grand Avenue, 7th Floor, Los Angeles, CA 90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail: [email protected]. Contact Matthew S. Rae Jr. Attorney specialists in estate planning, trust, and probate law. Consultant and expert witness, special and associate counsel, guardian ad litem, referee, special administrator, and independent trustee. PROCESS SERVER BENCHMARK INVESTIGATIONS 32158 Camino Capistrano, # A-415, San Juan Capistrano, CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: [email protected]. Web site: www .BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/ financial searches, background investigation, DMV searches, domestic/marital cases, due diligence, process SPECIALTIES ■ Internal Medicine ■ Pulmonary/Chest Medicine ■ Occupational Medicine ■ Wrongful Death Cases ■ Patient Care Issues ■ Medical Causation ■ Standard of Care Issues ■ Diagnostic Dilemmas ■ Toxic Exposure ■ Medical Records Review MEDICAL PRACTICE IN PULMONARY/CHEST MEDICINE AND INTERNAL MEDICINE SINCE 1983 Degrees: MS, MD, FCCP Board Certified, Internal Medicine Board Certified, Pulmonary Medicine Fellow Am. College of Chest Physicians Associate Clinical Professor Medicine USC College of Medicine Associate Clinical Professor of Medicine UC Irvine College of Medicine Lecturer in Physiology UC Riverside College of Medicine JAMES F. LINEBACK, M.D. 2100 N. Main St., Suite 202 Santa Ana, CA 92706 Telephone (714) 565-1012 Fax: (949) 721-9121 E-mail: [email protected] Los Angeles Lawyer November 2004 71 ✒ Expert witness ✒ Forensic accountants ✒ Family law matters ✒ Business valuations ✒ Loss of earnings ✒ Damages When you need more than just numbers... you can count on us... Contact Michael Krycler PHONE (818) 995-1040 FAX (818) 995-4124 E-MAIL [email protected] VISIT US @ www.KETW.COM 15303 VENTURA BOULEVARD, SUITE 1040 SHERMAN OAKS, CALIFORNIA 91403 ETHICS WITHOUT COMPROMISE Miod and Company has developed a solid reputation for ethical Forensic Accounting services. For all legal arguments that relate to accounting issues, we deliver informed, objective, honest opinions. + Non-partisan/Expert Witness Testimony + Objective Business Appraisals -Marital Dissolutions -Estate Valuations + Tax Consultation + Thorough Investigative Accounting -Asset Tracing -Reimbursement Claims + Fraud Investigations CALL FOR OUR COMPANY BROCHURE LOS ANGELES OFFICE: 11600 INDIAN HILLS ROAD BULDING B, SUITE 300 MISSION HILLS, CA 91345-1225 TEL: (818) 898-9911 FAX: (818) 898-9922 www.miod-cpa.com PALM DESERT OFFICE: 74-478 HIGHWAY 111 SUITE 254, PALM DESERT, CA 92260 TEL: (760) 779-0990 FAX: (760) 779-0960 People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting ✒ Litigation support People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting service, surveillance/photograph, witness location, and statements. LA branch plus correspondents nationwide. Multilingual agents. Fully insured. PRODUCT FAILURES FRED M. JOHNSON, PHD P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax (714) 526-6662. Contact Fred M. Johnson, PhD. For those who seek the most qualified and the highest forensic workmanship. Extensive test facility and equipment available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight, moon rise/set. Product failure analysis: medical devices, glass, chairs (all types), ladders. Slip and fall: scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traffic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of physics, fellow Am. Physical Society, consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author of textbook + 60 scientific publications. Over 35 years in research. Extensive expert witness experience. See display ad on page 66. PRODUCTS LIABILITY A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, (818) 344-2700, fax (818) 344-3777. Engineers: experienced, registered, advanced degrees, and extensive testimony experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing, time-motion, and lowspeed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, and consumer products: brakes, seat belts, forklifts, machinery, tools, protective equipment, lawn mowers, heaters, chairs, fixtures, ladders, scaffolds, fasteners. Premises liability (code analysis, stairways, ramps, doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. Biomechanics. Safety. Human factors. See display ad on page 45. PROSTHETICS/ORTHOTICS BEVERLY HILLS PROSTHETICS ORTHOTICS, INC. 6300 Wilshire Boulevard, Suite 150, Los Angeles, CA 90048, (323) 866-2555, fax (323) 866-2560, e-mail: keith @bhpoinc.com. Web site: www.bhpoinc.com. Contact Keith Vinnecour, CPO. Expert witness testimony/life care plans. PSYCHIATRY/PSYCHOLOGY BARRINGTON PSYCHIATRIC CENTER 1990 South Bundy Drive, Suite 320, Los Angeles, CA 90025, (310) 826-3235, fax (310) 447-0840. Contact David Gyepes, JD, PhD. Full range of civil litigation evaluation, sexual harassment, wrongful termination, personal injury, neuropsychology, posttraumatic stress disorders, child psychiatry/psychology, malpractice, mold and toxic exposures, and Americans with (mental) disabilities claims. Litigation consultation regarding case planning, record review, and behind-the-scenes case preparation. Expert witness testimony in which the right expert is matched to the case. ARNOLD L. GILBERG, MD, PHD Associate Clinical Professor of Psychiatry, UCLA School of Medicine, a professional corporation, 9915 Santa Monica Boulevard, Suite 101, Beverly Hills, CA 90212, (310) 274-2304, fax (310) 203-0783. Contact Arnold L. Gilberg. Board certified and appointed by three governors to Medical Board of California 11th District MQRC 1982-1991. Certified in psychiatry and psychoanalysis. All civil matters, experienced as expert witness. Degrees/licenses: M.D., PhD. Licensed in California and Hawaii. 72 Los Angeles Lawyer November 2004 See display ad on page 47. BRIAN P. JACKS, MD Clinical Professor of Psychiatry, USC, 462 North Linden, Suite 441, Beverly Hills, CA 90212, (310) 274-0684, fax (310) 274-5049. Contact Andrea Wilens, office manager. Specialties: 25+ years’ experience with adults, teenagers, and children. Workers’ compensation (QME, AME), personal injury, sexual harassment, posttraumatic stress, child custody, traumatic brain injury, medical malpractice, psychopharmacology, and malingering. Treatment: individual, marital, and family. Board certified: adults (1974), child-adolescent (1976). Trial experience. Degrees/license: MD, physician/psychiatrist, FAACP. JEFF SUGAR, MD 312 East Sycamore Avenue, El Segundo, CA 90245, (310) 322-6933, e-mail: [email protected]. Jeff Sugar, MD, child, adolescent, and adult psychiatrist. Associate clinical professor, UCLA. A practicing psychiatrist for 15 years, he is board certified in child and general psychiatry. He is past president of the Southern California Society of Child and Adolescent Psychiatry. As founding director of research at Hathaway Children and Family Services, he led a study of the long-term effects of trauma. Currently chief of Child Inpatient at Kedren Community Health Center and in private practice-general and child psychiatry. Dr. Sugar’s reports and/or testimony have had an impact in cases (both child and adult) involving: trauma: sexual and physical abuse (with or without PTSD), personal injury and workers compensation, psychiatric medication issue, diagnosis and appropriate treatment, ethical issues and stress in legal practice, battered woman’s syndrome, child custody. Free initial telephone consultation with attorney. Attorney references and/or redacted past reports available on request. See display ad on page 64. PUBLISHING BAY SHERMAN CRAIG & GOLDSTEIN, LLP 11845 West Olympic Boulevard, Suite 845, Los Angeles, CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail: [email protected]. Web site: www.baysherman.com. Contact Peter Craig or Hal Jaffe. Many legal disputes involve financial, accounting, and income tax considerations. Bay Sherman Craig & Goldstein, LLP, work together with counsel to resolve these conflicts. We specialize in intellectual property publishing. In addition to expert witness testimony, we provide the following: services prior to trial, financial, accounting and income tax issues defined, record analysis, economic fact-finding and analysis, deposition preparation assistance, and settlement negotiations. SPIEGEL PROPERTY DAMAGE CONSULTING & FORENSICS ✔ MOLD REMEDIATION ✔ WATER DAMAGE ✔ SEWAGE BACKFLOW ✔ FIRE & SMOKE DAMAGE ✔ FLOORING FORENSIC ✔ INDUSTRY STANDARDS OF CARE INSURANCE CLAIMS EXPERTS CONSTRUCTION DAMAGE • DEFECTS DETAILED CONSTRUCTION COST ESTIMATES BRIAN SPIEGEL, CR, CIE, CMR DAVID SPIEGEL, CR, CIE, CMR CERTIFIED RESTORERS CERTIFIED INDOOR ENVIRONMENTALISTS CERTIFIED MOLD REMEDIATORS IICRC CERTIFIED MASTERS LIC. GEN. CONTRACTOR #299472 See listings under Banking, Construction, and Financial. 800-266-8988 FAX 909-591-7274 [email protected] www.propertydamageinspections.com CONSULTANTS/EXPERT WITNESS R E A L E S TAT E / R E A L P R O P E R T Y M AT T E R S Specializations: Customs & Standards of Practice, Agency Relationships Material Disclosure in Residential Real Estate Sales 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/licenses: Board Certified Diagnostic and Nuclear Radiologist; B reader. See display ad on page 53. 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. Nation- TEMMY WALKER, REALTOR® Real Estate Consulting Expert Witnessing SERVICES RENDERED: Litigation Consulting, Expert Testimony, Broker Practice, Liability Audit, Educational Services, Industry Mediator Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist, California Association of Realtors® Director Since 1981, National Association of Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education Association, Past President, San Fernando Valley Board of Realtors 5026 Veloz Avenue, Tarzana, California 91356 Telephone (818) 760-3355 • Pager (818) 318-2594 e-mail: [email protected] CALIFORNIA BROKER LICENSE NO. 00469980 Los Angeles Lawyer November 2004 73 ally 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 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 75. STEPHEN B. FAINSBERT, ESQ., FAINSBERT MASE & SNYDER, LLP 11835 West Olympic Boulevard, Suite 1100, Los Angeles, CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: [email protected]. Contact Stephen B. Fainsbert. Expert testimony in real property exchanges (coauthor CEB publication Real Property Exchanges, 2nd ed.), real estate transactions, standard of care and practice for real estate brokers, escrow, and real estate attorneys, disclosures in purchase and sale agreements, real estate financing, and secured real property transactions. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry .com. Contact David Nolte. Services include computer forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on page 2. LAW OFFICE OF LORE HILBURG 1651 Virginia Road, Los Angeles, CA 90019, (323) 7374444, fax (323) 737-4411, e-mail: [email protected]. Contact Lore Hilburg. Recognized expert witness on title, escrow and foreclosure issues as well as legal malpractice regarding title and title insurance matters. Testified in Superior and Federal courts and arbitrations. LAWRENCE H. JACOBSON, ESQ. 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 90212, (310) 271-0747, fax (310) 271-0757, e-mail: [email protected]. Web site: www.jurispro.com/mem /lawrencejacobson. Practicing real estate law in California since 1968; Real estate broker since 1978; Former VPLegal Affairs, California Association of Realtors; broker. Witness/consultant expertise in standard of care; brokerage; lawyer malpractice, transactions, custom, and usage. JACK KARP/NATIONAL PROPERTIES GROUP 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, (310) 377-6349, fax (310) 868-2880, e-mail: jlkarp@cox .net. Industrial and commercial broker’s care and duties, professional obligations to clients. Mediation and arbitra- 74 Los Angeles Lawyer November 2004 tion between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site location analysis. Real estate leases and purchase contracts and their interpretations. Author AIR Net and Gross Leases and AIR Standard Offer and Agreement and Escrow Instruction for Purchase of Real Estate. See display ad on page 47. SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert @schulzehaynes.com. Web site: www.schulzehaynes .com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; CMA; certified appraiser, PE; RE broker. TEMMY WALKER, INC. 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355, fax (818) 999-0826, e-mail: [email protected]. Contact Temmy Walker. Specializes in expert witness testimony and litigation consultant in matters regarding residential real estate, with emphasis on the customs and practice, standards of care, disclosure requirements, agency relationships, and broker supervision. Complete assistance. Extensive transaction and court experience. Director California Association of Realtors, master faculty instructor for continuing education C.A.R. Excellent credentials and references. See display ad on page 73. ALAN D. WALLACE, ESQ. 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: [email protected]. Contact Alan D. Wallace, Esq. Expert witness and litigation consulting for general real estate matters, including law, custom and practice, agency, disclosure, broker malpractice, standards of care for brokers, buyers and sellers. Broker and attorney. Involved as broker in more that 7,500 real estate transactions. Department of Real Estate master instructor and author, former CAR hotline attorney, university law professor in real estate. Successfully testified in dozens of cases. See display ad on page 75. REAL ESTATE APPRAISAL 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 75. CURTIS-ROSENTHAL, LLC 5959 West Century Boulevard, Suite 1010, Los Angeles, CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: [email protected]. Web site: www .curtisrosenthal.com. Contact David Rosenthal, MAI. Appraisal of commercial and residential real estate for eminent domain, bankruptcy, estate planning, divorce, and general litigation. Accepted in local, state, and federal courts. MAURICE ROBINSON & ASSOCIATES LLC 880 Apollo Street, Suite 125, El Segundo, CA 90245, (310) 640-9656, fax (310) 640-9276, e-mail: maurice @mauricerobinson.com. Web site: www.mauricerobinson .com. Contact R. Maurice Robinson, president. Hotel and real estate industry business issues, including market, economic and financial feasibility, valuation, and disputes between owner-operator, borrower-lender, and franchisor-franchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment analysis. RECEIVER SALTZBURG, RAY & BERGMAN, LLP 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA 90025, (310) 481-6700, fax (310) 481-6720. Contact David L. Ray, Esq. Specializes in handling complex receivership matters, such as partnership and corporate dissolutions, including law firm dissolutions, and government enforcement receivership actions, including actions brought by the California Department of Corporations, Department of Real Estate, Commodities Future Trading Commission, and Federal Trade Commission. Nationally recognized in both the lender and litigation communities as qualified to assist in complicated and commercially sophisticated liquidations, reorganizations, and ongoing business operations. RELOCATION ASSISTANCE OVERLAND, PACIFIC & CUTLER, INC. 100 West Broadway, Suite 500, Long Beach, CA 90802, (800) 400-7356, fax (562) 304-2020, e-mail: dstadler @opcservices.com. Web site: www.opcservices.com. Contact David Stadler. Overland, Pacific & Cutler, Inc. is recognized as one of the nation’s leading real estate services organizations. We are known for our expertise in delivering acquisition and relocation projects to public agencies. We have been called upon to provide eminent domain litigation support and expert witness testimony relating to relocation assistance and goodwill valuation on behalf of both public agencies and businesses displaced by public projects. RESTAURANTS LEON GOTTLIEB US-INT’L RESTAURANT, HOTEL & FRANCHISE CONSULTANT 4601 Sendero Place, Tarzana, CA 91356-4821, (818) 757-1131, fax (818) 757-1816, e-mail: [email protected]. Web site: http://members.aol.com/lgottlieb/myhomepage /business.html. Specialties: USA/Int’l restaurant/hotel/franchise experience since 1960. Hands-on consultant and expert witness, all types of restaurants, franchises, fast food, training, manuals, safety, security, injury, operating standards, and P&L damages. Former VP/Partner IHOP, director to USA chains, author, arbitrator, and expert witness. RETALIATION HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful termination. 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. ROOFING AND WATERPROOFING SCHWARTZ / ROBERT & ASSOCIATES, INC. 42 Faculty Street, Thousand Oaks, CA 91360, (805) 7771115, cell (818) 825-3247, fax (805) 777-1172, e-mail: [email protected]. Web site: www.schwartzrobert .com. Contact Robert I. Schwartz, AIA. Real Property Development procedures & practices, all building types, sizes & phases. Professional evaluation of building design errors & omissions, building code compliance & professional standards of practice. Forensic investigation of construction defects. Repair cost estimates. Construction contract/subcontract performance—project management administration & cost accounting, CPM scheduling, cost estimating, change order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major property/ casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness testimony. Experienced AAA arbitrator & mediator. Large & complex cases. Member, Dispute Resolution Boards. VAN DIJK & ASSOCIATES, INC. 28 Hammond, Suite G, Irvine, CA 92618, (949) 5863828, fax (949) 586-7429, e-mail: info@vdaconsulting .com. Web site: www.vdaconsulting.com. Contact Nils Van Dijk. Experienced staff of consultants specializing in forensic/expert witness litigation services, plan/document review, specification preparation, and quality control/management services. Expert Witness —Real Estate Matters— SPECIALIST IN: • Broker duties; Standard of Care • Disclosure Issues – Buyer/Seller • Agency Obligations • Real Estate Malpractice • Mortgage Brokerage Law • Residential & Commercial Transactions CREDENTIALS: Supervising Broker Responsible for overseeing more than 7,500 RE transactions in major California-based real estate companies. General Counsel Legal adviser for two of nation’s largest real estate companies. Hotline Attorney Supervising Senior Counsel at California Association of Realtors (CAR) DRE Master Instructor Author, DRE Disclosure Course. Alan D. Wallace, Esq. 14011 Ventura Blvd., Suite 406 Sherman Oaks, CA 91423 818/501-0133 ■ FAX 818/905-6091 www.expertwitnessre.com e-mail: [email protected] SECURITY CONFIDENTIAL BUSINESS CONSULTANTS, LLC 2275 Huntington Drive, Suite 309, San Marino, CA 91108, (626) 419-0082, fax (626) 799-7960, e-mail: [email protected]. Contact James F. Broder, CFE, CPP, FACFE. Author of “Risk Analysis and Security Surveys,” premise liability, adequate vs. inadequate security procedures and practices, expert case analysis and testimony, corporate procedures, training and operations, kidnap, ransom, extortion, and workplace violence issues. Thirty-five years of law enforcement and security experience, domestic and international. Listed in the Encyclopedia of Security Management as “One of the most highly recognized security authorities in the US.” CA PI Lic. 0021073. ROBERT C. ROSEN 300 South Grand Avenue, Suite 2700, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site: www.rosen-law.com. Specializing in securities law, federal securities law enforcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, internet securities, and law firm liability. Former chair, LACBA Business and Corporations Law Section; LLM, Harvard Law School. More than 30 years practicing securities law, 12 years with the U.S. Securities and Exchange Commission, Washington, DC. Published author of securities regulations, including eight volume treaties. See display ad on page 57. Los Angeles Lawyer November 2004 75 SEXUAL HARASSMENT/DISCRIMINATION HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful termination. 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 prac- tices 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. BRIAN H. KLEINER, PHD Professor of Human Resource Management, California State University, 800 North State College Boulevard, LH640, Fullerton, CA 92834, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specializations include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and practices, reasonable care, progressive discipline, conducting third-party workplace investigations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/ FMLA, compensation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over 500 publications. Five-time winner of CSUF Meritorious Performance Award. Have given trial testimony in over 35 cases. STEPHEN J. MOREWITZ, PHD & ASSOCIATES 5300 Bothwell Road, Tarzana, CA 91356, (818) 5941587, fax (818) 345-9981, e-mail: morewitz@earthlink .net. Web site: http//home.earthlink.net/~morewitz/ Contact Dr. Steve Morewitz. Sexual harassment and disability. Evaluates sexual harassment policies and procedures, sexual harassment impact, disability, rehabilitation, and quality of life losses. Provides other experts. Eighteen years of experience. Professor and former dean. Author of four books and 70 other publications. Outstanding Scholar Book Award and other honors. SLIP, TRIP, AND FALL — EXPERT WITNESS IN — INFERTILITY, GYNECOLOGY & OBSTETRICS IVF (In Vitro Fertilization) • LASER SURGERY • LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY GIL N. MILEIKOWSKY, M.D. OFFICES: Encino and Beverly Hills 2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077 TEL (310) 858-1300 • FAX (310) 858-1303 TEL (818) 981-1888 • FAX (818) 981-1994 Web site: www.baby4you.net A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, (818) 344-2700, fax (818) 344-3777. Engineers: experienced, registered, advanced degrees, and extensive testimony experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing, time-motion, and low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, and consumer products: brakes, seat belts, forklifts, machinery, tools, protective equipment, lawn mowers, heaters, chairs, fixtures, ladders, scaffolds, fasteners. Premises liability (code analysis, stairways, ramps, doors, gates, windows, guardrails, pools, lighting). Slip, trip, and falls. Biomechanics. Safety. Human factors. See display ad on page 45. Please see listing under INFERTILITY and OBSTETRICS AND GYNECOLOGY for more information. TAXATION KAJAN MATHER & BARISH 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA 90212, (310) 278-6080, fax (310) 278-4805, e-mail: ehk @taxdisputes.com. Web site: www.taxdisputes.com. Contact Elliott H. Kajan. The firm’s practice is devoted to representation of taxpayers before the Internal Revenue Service, Franchise Tax Board, State Board of Equalization, and California Employment Development Department, involving tax audits, administration appeals proceedings, tax collection matters, complex tax litigation, and criminal tax investigations and trials. The firm also represents and advises accountants regarding tax penalties and professional responsibility matters. TRAFFIC ENGINEER WILLIAM KUNZMAN, PE 1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: mail @traffic-engineer.com. Web site: www.traffic-engineer .com. Contact William Kunzman, PE. Traffic expert witness since 1979, both defense and plaintiff. Auto, pedestrian, bicycle, and motorcycle accidents. Largest settlement: $2,000,000 solo vehicle accident case against Caltrans. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County Road Department, City of Irvine, and Federal Highway Administration. Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work— UCLA; graduate work—Yale University. 76 Los Angeles Lawyer November 2004 Classifieds Attorney Wanted ESTABLISHED LAS VEGAS FIRM SEEKING EXPERIENCED, licensed commercial litigator with minimum 3 years’ litigation experience. Excellent academic, writing, and computer skills required. Send resume, qualifications, and writing samples to Administrative Director, O’Reilly & Ferrario LLC, 325 S. Maryland Pkwy., Las Vegas, NV 89101, fax (702) 384-6266 or e-mail [email protected]. Consultants/Experts CONSTRUCTION EXPERTS: More than 40 years of construction expertise provides you and your client with formidable forensic expert witnesses and compelling litigation support of complex and highly technical issues. Contact MPGroup/Michael S. Poles, GC, CM, RCI, DABFET, ACFE, Construction Expert/Mediator. Telephone: (323) 874-8973. Web: www.mpgroup.com. NEED AN EXPERT WITNESS, legal consultant, arbitrator, mediator, private judge, attorney who outsources, investigator, or evidence specialist? Make your job easier by visiting www.expert4law.org. Sponsored by the Los Angeles County Bar Association, expert4law—the Legal Marketplace is a comprehensive online service for you to find exactly the experts you need. Counseling and Psychotherapy A LAWYER’S COUNSELOR. Obtain expert help and understanding in gaining relief from job and career concerns, stress, self-defeating patterns, anger, procrastination, and relationship conflict. Richard Gottfried, JD, MBA, MFT (Lic.# MFC32871). Confidential. (310) 207-5177. Office Space ATTORNEYS WANTED. Law office building space available. Near the Torrance Courthouse at 2276 Torrance Blvd. Rent includes a two (2) office suite, phone system, with voicemail, full-time receptionist, conference room, and small law library. $750.00 per month. Must see. Call Kere at (310) 320-9742. NEW DELUXE VALLEY EXECUTIVE SUITES. Recently built Sherman Oaks deluxe fully furnished, executive suites available with full amenities on a month-to-month basis or long terms. Rates vary based on square footage and services. Must see! Please call (818) 528-1455. SOUTHERN CALIFORNIA. FREE. Executive Suite Offices Guide. Eighty-page booklet lists over 150 buildings in Los Angeles, Orange, San Diego Counties and the Inland Empire that offer executive suites. Guide includes office prices, amenities offered, photos, maps, and contacts. Mailed the same day ordered. Call 24 hours: (800) 722-5622. 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 SERVICES 901 W. Whittier Blvd. Montebello, CA 90640 (323) 728-8268 EL MONTE HEALTH CENTER 2163 Durfee Rd. El Monte, CA 91733 (626) 401-1515 HUNTINGTON PARK HEALTH CENTER 3033 E. Florence Ave. Huntington Park, CA 90255 (323) 582-8401 POMONA HEALTH CENTER 1180 N. White Ave. Pomona, CA 91768 (909) 623-0649 VICTORY HEALTH CENTER 6420 Van Nuys Boulevard Van Nuys, CA 91401 (818) 988-8480 CRENSHAW HEALTH CENTER 4243 S. Crenshaw Blvd. Los Angeles, CA 90008 (323) 291-5733 *ONTARIO HEALTH SERVICES 334 N. Euclid Ave. Ontario, CA 91764 (909) 395-5598 HIGHLAND PARK HEALTH CENTER 5421 N. Figueroa St. (Highland Park Plaza) Highland Park, CA 90042 (323) 478-9771 SO. CENTRAL HEALTH CENTER 4721 S. Broadway Los Angeles, CA 90037 (323) 234-3100 WHITTIER HEALTH SERVICES 13019 Bailey Ave. Suite F Whittier CA 90601 (562) 698-2411 1-800-624-2866 *Medical facilities in Montebello and Ontario only Los Angeles Lawyer November 2004 77 T HE LOS ANGELES COUNTY BAR FOUNDATION’S 2003-2004 direct mail fundraising campaign raised approximately $200,000 from corporations, foundations, individuals, law firms, and others. Contributions from law firms totaled $101,700; individuals contributed $70,566; and corporations, foundations, and others contributed $27,700. In addition to these direct contributions, approximately $81,000 was contributed to the Foundation by individuals, corporations, and law firms by means of the Association’s annual dues statement voluntary contribution. The Foundation wishes to express sincere thanks to all who contributed during the 2003-2004 campaign. As part of the procedures required in connection with its annual INDIVIDUAL CONTRIBUTIONS Rhonda R. Trotter Robert S. Warren $10,000 or more Ruth J. Lavine $200-$499 Mollie F. Benedict William J. Bogaard Lester O. Brown Patricia Egan Daehnke Richard C. & Susan K. Davidoff Feris M. Greenberger Alan N. Halkett Jacqueline J. Harding Dena A. Kleeman Philip H. Lam Bernard E. & Joan M. LeSage LeAnne E. Maillian James G. Phillipp Barbara W. Ravitz Susan Steinhauser & Daniel Greenberg Patricia A. Van Dyke Caroline C. Vincent $2,000-$9,999 Jennifer A. Bensch John J. Collins Daniel J. Woods $1,000-$1,999 Don Mike Anthony David B. Babbe Charles G. Bakaly, Jr. Jamie Broder Robert E. Carlson Walter Cochran-Bond Glen B. Collyer Knox M. Cologne III Albert F. Davis Stanley F. Farrar Richard E. Hodge Robert K. Johnson Martha B. Jordan James H. Kindel, Jr. Margaret Levy James C. Martin Robin Meadow Hon. Margaret A. Nagle Covert E. Parnell III John J. Quinn Wayne Simon Donna J. Zenor $500-$999 Linda Auerbach Allderdice Donald P. Baker Teresa A. Beaudet Michael I. Blaylock Thomas M. Brown Carolyn C. Burger Jordan S. Cohen Brian K. Condon Andrew J. Demetriou Laura V. Farber Gregg A. Farley Richard E. Garcia Mark Garscia Richard B. Goetz Jo-Ann W. Grace Rex S. Heinke Jeffrey M. Jacobberger Larry & Bobbie Liebenbaum Charles E. Michaels Theodore N. Miller Audra M. Mori Richard H. Nakamura, Jr. Thomas D. Phelps Patricia D. Phillips Marc L. Sallus Laura A. Seigle Sheryl E. Stein LAW FIRM CONTRIBUTIONS $15,000 and above Morrison & Foerster Foundation $9,000-$14,999 Latham & Watkins LLP $6,000-$8,999 Bingham McCutchen LLP $5,000-$5,999 Akin, Gump, Strauss, Hauer & Feld LLP O’Melveny & Myers LLP Paul, Hastings, Janofsky & Walker LLP Sheppard, Mullin, Richter & Hampton LLP $3,500-$4,999 Munger, Tolles & Olson Skadden, Arps, Slate, Meagher & Flom LLP $2,000-$3,499 Alschuler Grossman Stein & Kahan LLP Arnold & Porter Foley & Lardner Fulbright & Jaworski LLP Greenberg Glusker Howrey Simon Arnold & White LLP Irell & Manella LLP Jaffe & Clemens Jones Day Kirkland & Ellis LLP McKenna, Long & Aldridge LLP Milbank, Tweed, Hadley & McCloy LLP 78 Los Angeles Lawyer November 2004 2003-2004 Fund Drive Results audit, the Foundation hereby lists all individuals who made contributions of $200 or more, and all law firms, corporations, foundations, and other organizations that contributed $1,000 or more during the period beginning July 1, 2003, and ending June 30, 2004. If you are not listed below, and you made a contribution to the Foundation fitting any of the above criteria, please contact the Foundation’s independent certified public accountants, Green, Hasson & Janks LLP, by calling Gayle Whittemore directly at (310) 873-1605. The Foundation regrets that space limitations prevent the listing of the names of all contributors. Reed Smith LLP Sidley Austin Brown & Wood LLP Courthouse News Service $1,000-$1,999 Allen, Matkins, Leck, Gamble & Mallory LLP Baker & Hostetler LLP Bergman & Dacey, Inc. Bonne Bridges, Mueller, O’Keefe & Nichols APC Cotkin, Collins & Ginsburg APC Cox Castle & Nicholson LLP Dewey Ballantine Epstein, Becker & Green Ervin, Cohen & Jessup LLP Fried, Frank, Harris, Shriver & Jacobson LLP Girardi & Keese Greines, Martin, Stein & Richland LLP Hahn & Hahn LLP Haight, Brown & Bonesteel LLP Heller, Ehrman, White & McAuliffe LLP Hochman, Salkin, Rettig, Toscher & Perez P.C. Horvitz & Levy LLP Hughes, Hubbard & Reed LLP Manatt, Phelps & Phillips LLP Mayer, Brown, Rowe & Maw LLP Parker, Milliken, Clark, O’Hara & Samuelian Pillsbury Winthrop LLP Piper Rudnick LLP Reish Luftman Reicher & Cohen APC Robie & Matthai Rutter, Hobbs & Davidoff Inc. Sedgwick, Detert, Moran & Arnold LLP Stroock & Stroock & Lavan LLP Sullivan & Cromwell White & Case MERAV BARANY, by Marc L. Sallus OTHER CONTRIBUTIONS $8,000 and above American Corporate Counsel Association – Southern California Chapter $3,500-$7,999 Los Angeles County Bar Association – Labor & Employment Law Section $2,500-$3,499 Los Angeles County Bar Association – Litigation Section $1,000-$2,499 Bank of The West IN MEMORY OF... DAVID A CATHCART, by LACBA Labor & Employment Law Section CHARLES R. ENGLISH, by Teresa A. Beaudet William J. Bogaard LeAnne E. Maillian Patrick F. Milne Judge & Mrs. Harvey A. Schneider John D. Taylor PAUL GILLETTE, by Larry & Bobbie Liebenbaum NATHAN HERZBERG, by Robin E. Harvey & Mitchell B. Cohen TIM LIMERT, by Larry & Bobbie Liebenbaum HENRY STEIN, by Sheryl E. Stein LLOYD STOCKEL, by Larry & Bobbie Liebenbaum VINCENT M. TOWNSEND, JR., by David S. Ettinger IN HONOR OF... ROY H. AARON, by Richard C. & Susan K. Davidoff Kenji Machida DONALD P. BAKER, by Martha B. Jordan David K. Robinson SIDNEY MACHTINGER, by Barbara Kort ROBIN MEADOW, by Susan Steinhauser & Daniel Greenberg NEAL S. MILLARD, by Bernard & Katherine Millard DONNA J. ZENOR, by Morrison & Foerster Foundation The Foundation would also like to give special recognition to the following individuals whose participation in various pledge programs (as of 6/30/04) reflects a firm commitment to the Foundation’s goals: HONOR ROLL Participants have contributed, or pledged to contribute, the amounts shown for each category in annual minimum installments of at least $1,000. (List includes participants as of 6/30/04.) Founder ($50,000 or more) Hyman J. Bradofsky Hutto Patterson Charitable Foundation J.W. & Ida M. Jameson Foundation Hon. Richard A. & Ruth J. Lavine Donald C. Mitchell Ralph J. Shapiro Benefactor ($25,000 $49,999) Roy H. Aaron Jules & Doris Stein Foundation Lloyd & Susan Stockel Patron ($15,000 - $24,999) Joseph R. Austin William J. Bogaard Robert E. Carlson Richard Chernick Knox M. Cologne III Stephen R. English & Molly Munger Stanley F. Farrar Robert K. Johnson Robin Meadow Gavin Miller In Honor of David Pascale John J. Quinn In Honor of Richard Walch Sponsor ($10,000 - $14,999) Don Mike Anthony John Carson Gerald L. Chaleff John J. Collins Charles R. English Richard E. Garcia Harry L. Hathaway Richard E. Hodge Patrick M. Kelly Joel W. H. Kleinberg Neal S. Millard Covert E. Parnell III Joseph Taback David H. Vena Hon. Charles S. Vogel Robert S. Warren Daniel J. Woods Friend ($5,000 - $9,999) Joseph W. Aidlin Steven W. Bacon Donald P. Baker Patricia H. Benson Walter Cochran-Bond Paul F. & Isabel R. Cohen Glen B. Collyer Joe D. Crider Donald A. Daucher Lee Edmon & Dick Burdge Larry R. Feldman Mark Garscia Albert S. Golbert David E. Gordon & Mary D. Lane Hon. William P. Gray Sarah Heck Griffin Rex S. Heinke Hon. William P. Hogoboom Maria D. Hummer John D. Hussey Joan R. Isaacs Leonard S. Janofsky Vincent W. Jones Martha B. Jordan James H. Kindel, Jr. Sandra R. King Richard G. LaPorte Bernard E. & Joan M. LeSage Margaret Levy Larry & Bobbie Liebenbaum James C. Martin Malissa Hathaway McKeith Theodore N. Miller Hon. Anthony J. Mohr Hon. Margaret M. Morrow Hon. Margaret A. Nagle John F. O’Hara Ronald L. Olson Andrea Sheridan Ordin David J. & Cynthia F. Pasternak Aulana L. Peters Thomas D. Phelps Patricia Phillips Douglas Ring Reade H. Ryan, Jr. Harvey L. Silbert Wayne Simon Sheldon H. Sloan Linda J. Smith John D. Taylor William W. Vaughn Martin H. Webster Hon. Robert Weil John S. Welch Francis M. Wheat In Memory of Arnold V. Winthrop Donna J. Zenor PRESIDENTS CLUB Former Bar Association or Bar Foundation presidents who have contributed or pledged to contribute a minimum of $5,000 to the Foundation. (List includes participants as of 6/30/04.) Roy H. Aaron Don Mike Anthony Joseph R. Austin Donald P. Baker Robert E. Carlson John Carson Gerald Chaleff Richard Chernick Knox M. Cologne III Donald A. Daucher Hon. Lee Smalley Edmon Charles R. English Stephen R. English Larry R. Feldman David E. Gordon Hon. William P. Gray Sarah Heck Griffin Harry L. Hathaway Rex S. Heinke John D. Hussey Joan R. Isaacs Leonard S. Janofsky Vincent W. Jones Patrick M. Kelly Ruth J. Lavine Fred L. Leydorf Robin Meadow Neal S. Millard Gavin Miller Hon. Margaret M. Morrow John F. O’Hara Andrea Sheridan Ordin David J. Pasternak Patricia Phillips John J. Quinn Sheldon H. Sloan Susan R. Stockel John D. Taylor Hon. Charles S. Vogel Robert S. Warren Martin H. Webster John S. Welch Francis M. Wheat Donna J. Zenor LIFE FELLOWS A Life Fellow has contributed, or pledged to contribute, $2,500 to the Foundation. Annual installments must be at least $500. (List includes participants as of 6/30/04.) James N. Adler Linda Auerbach Allderdice Dean V. Ambrose Hon. Orville A. Armstrong Richards D. Barger Jane H. Barrett Teresa A. Beaudet Lori R. Behar Mollie F. Benedict Jennifer A. Bensch Blanche C. Bersch William M. Bitting Michael I. Blaylock Stephen M. Blitz Merrick J. Bobb Robert C. Boffa Phillip L. Bosl Joel E. Boxer Thomas M. Brown Geoffrey L. Bryan Carolyn C. Burger Lauren Burton Claudia Carver Paul A. Catalano Edward C. Cazier, Jr. Arlene Colman-Schwimmer Brian K. Condon Douglas C. Conroy Hon. H. Walter Croskey Patricia Egan Daehnke Grace M. Danziger Albert F. Davis Katessa Charles Davis Andrew J. Demetriou Pamela Dunn & Maria Louise Cousineau Gregory L. Evans Jonathan W. Evans Laura V. Farber Gregg A. Farley Hon. Lisa Hill Fenning Hon. Macklin Fleming Georgia Franklin-Shutan Jeffrey C. Freedman Alan H. Friedenthal James J. Gallagher Patricia A. Gartner Robert T. Gelber Russell T. Ginise Richard B. Goetz Hon. Arnold H. Gold Prof. Max A. Goodman Jo-Ann W. Grace Jan Charles Gray Hon. Paul Gutman Alan N. Halkett Rex Heeseman Robert Henigson Grover R. Heyler Edward W. Hieronymus Bernard S. Kamine Kelly W. Kay Russel I. Kully Frederick W. Lambert John A. Lapinski Bruce H. Leiserowitz Roderick W. Leonard Fred L. Leydorf Michael S. Lurey LeAnne E. Maillian Vicki E. Marmorstein & Seth A. Ribner Michael E. Meyer Charles E. Michaels Audra Mori Richard T. Morrow Richard H. Nakamura, Jr. Mark A. Neubauer Robert H. Nida Andrew J. Nocas Stacey Olliff & Tracy Rich Gregg Oppenheimer Lee R. Petillon Karen Randall Barbara A. Reeves Kenneth O. Rhodes Hon. Andria K. Richey David K. Robinson Irving Rosenfeld Alan I. Rothenberg Deborah J. Ruosch Harvey I. Saferstein Nicholas P. Saggese Marc L. Sallus Laura A. Seigle Patricia L. Shanks Fran & Leonard Smith John R. Stahr Sheryl E. Stein David W. Steuber Clinton R. Stevenson Richard J. Stone Linda M. Stude Hon. Robert M. Talcott Stuart P. Tobisman Franklin Tom Clyde E. Tritt Eugene L. Trope Rhonda R. Trotter Susan J. Troy David C. Tseng Robert C. Vanderet Patric M. Verrone Caroline C. Vincent Richard S. Volpert Richard Walch John F. Walker, Jr. Stuart B. Walzer Michael R. Whalen Karen B. Wong & Scott W. Lee Kenneth B. Wright Hon. Paul Wyler Rosalyn S. Zakheim Susan Koehler Sullivan Paul D. Tripodi II Kim Tung Justin Walcott SUPPORTING MEMBERS Individuals who have pledged to contribute a minimum of $100 annually to the Foundation. (List includes participants as of 6/30/04.) 2003-04 FELLOWS Individuals who contributed a minimum of $500 between 7/1/03-6/30/04 and are not Life Fellows or Honor Roll participants. David B. Babbe Jamie Broder Jordan S. Cohen Jeffrey M. Jacobberger BARRISTERS FELLOWS A Barristers Fellow has contributed, or pledged to contribute over a five-year period, $500 to the Foundation. Barristers are individuals who are 36 years of age or less or who have been in practice 10 years or less. (List includes participants as of 6/30/04.) Barbara J. Bacon Randee Barak Sandeep Baweja James W. Bilderback II Gabrielle Harner Brumbach Elizabeth M. Calciano Luci-Ellen M. Chun Susan Skelding Couig Rebecca A. Delfino Stuart R. Fraenkel Joseph T. Hahn Jacqueline J. Harding Andres C. Hurwitz Nancy A. Kaiser Seth D. Levy Cindy J. Macho Cori McGraw Todd F. Nevell Jennifer F. Novak Angela J. Reddock Andrea Schoor Lara Drino Schwartz Lorin D. Snyder Margaret P. Stevens John W. Alden, Jr. Don Mike Anthony Hon. Helen I. Bendix Michael H. Bierman Maxwell M. Blecher Jonathan M. Brandler Brad D. Brian Lester O. Brown William Clark Brown Elizabeth M. Calciano Prof. Christopher D. Cameron Hon. H. Walter Croskey Melissa A. Dalziel Brian L. Davidoff Katessa Charles Davis David S. Eisen Jack I. Esensten Michele E. Flurer Thomas A. Freiberg, Jr. Robert S. Gerstein Mark T. Gillett Philip G. Grant Janice R. Hugener Joan R. Isaacs Lois M. Jacobs Henry J. Josefsberg Ruth D. Kahn Terri D. Keville Judy A. Kim Sandra R. King Marcia L. Kraft Miriam A. Krinsky Robert N. Kwan Edward A. Landry Andrea B. Liebenbaum Tomas R. Lopez LeAnne E. Maillian Victor I. Marmon Linda Wight Mazur Frederick L. McKnight Pansky & Markle John J. Quinn Barbara W. Ravitz Jerrold B. Reilly Pauline Y. Robins Toby J. Rothschild Peter Schnaitman Michael & Lara Schwartz Barry E. Shanley Arthur F. Silbergeld Ross E. Stromberg Linda M. Stude Paul D. Supnik Michael A. Tomasulo Wendy A. Tucker Patricia A. Van Dyke Caroline C. Vincent Richard Walch Earl P. Willens Roxanne M. Wilson Michael C. Zellers Fundraising for the current fiscal year (7/1/2004-6/30/2005) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF Web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2004 grant recipients. You may also contact the Foundation’s administrator, Linda Stude, at (213) 896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, P.O. Box 55020, Los Angeles, CA 90055 Los Angeles Lawyer November 2004 79 Computer Counselor BY GORDON K. ENG Considering the Utility of Digital Pens PEOPLE STILL RELY ON PEN AND PAPER to record important ideas and events. Pens remain unbeatable in terms of portability and ease of use, and their digital manifestation is now available to preserve and transcribe handwritten notes to a computer. I reviewed three digital pens, all having the properties of a normal ink pen and not requiring a wire connection while they are used to write. These pens also have the ability to digitally record their strokes, whether lettering or illustration. The motion is recorded into an image file that can be saved or exported in a common image file format. Two pens use technology developed by Anoto. They are offered by Logitech (www.logitech.com) and Nokia (www.nokia.com). A different digital pen technology is offered by Seiko Instruments (www.seikosmart.com). The Logitech is the largest pen of the group. Its girth is about three times that of a normal stick pen. This heft is required to hold the memory, image capture technology, and a rechargeable battery. Surprisingly, the pen is still light in weight. The Logitech pen holds about 40 pages of notes at a time, but users should expect to be able to capture no more than 20 to 25 pages on one battery charge. The information captured by the pen is downloaded to a computer through a USB docking station, which can also recharge the pen’s batteries. For the Logitech pen to capture your handwriting, you must use special Anoto paper. This paper can be purchased in various standard sizes and has a slightly gray color because it is imprinted with very small dots, which the pen uses as a frame of reference for capturing handwriting and drawings. To facilitate downloading, the dot patterns vary on different pages and parts of pages. For example, notebooks have pages that are formatted for email messages, appointments, and to-do items. Formatted pages have sections for identifying information such as subject, date, and whether the user is finished writing on the page. The different sections have distinct dot patterns that the pen recognizes; information in the different areas automatically flows into corresponding fields on a computer. Thus, when the pen’s information is downloaded, the data is transferred into e-mail, text, or a calendar. Anoto paper is available through different vendors, including Mead Westvaco (www .ataglance.com), Esselte Worldwide (www.esselte.com), or Oxford Easybook (www.oxfordeasybook.com). RICHARD EWING A Software Requirement The Logitech comes with handwriting recognition software called My Script, but it is a 30-day trial version. Users are required to train the software by writing the alphabet and various symbols. In order to obtain reasonable results, users must print rather than use cursive, and very consistent handwriting is a must. In my testing the results were uneven. Someone who consistently writes in print would be better able to make full use of the Logitech pen. The Logitech software can only be installed on a computer that has Microsoft Net Framework. As hard as I tried, I could not install Net Framework on a Windows 98 computer, but it is preinstalled on XP. 80 Los Angeles Lawyer November 2004 The Nokia pen is somewhat sleeker that the Logitech and looks more like a normal pen but is still a bit heftier than a fountain pen. Although the Nokia uses the same technology as the Logitech, it operates in a different manner. The Nokia is designed to be used with a Bluetooth-enabled phone. The pen captures handwriting and then sends it to a cell phone over a Bluetooth connection. The cell phone can then send the originally handwritten note via e-mail. With a PC, however, the Nokia requires users to dock the pen to a USB connection. Nokia claims the pen holds up to 100 pages in its memory. Like the Logitech pen, however, users can expect the battery to need recharging after about 20 to 25 pages or about 2 hours of steady use. As with the Logitech, users need to use Anoto paper for the Nokia to capture handwriting, and to connect the Nokia to a PC, the user must have Microsoft Net Framework installed. The Nokia pen does not come with the trial version of the My Script application and does not have the MS Word and Outlook integration that is found with the Logitech pen. The Seiko In size, the Seiko pen is the most similar to a traditional pen. The Seiko emits an ultrasonic sound that is received by a clip that can be attached to the top of a pad. No special paper is required. The clip, in turn, must be attached by a USB cable to a computer or by an infrared device connected to a PDA. The pen, receiver clip, and infrared transmitter all fit in the pen’s carrying case. The pen works with Palm and Microsoft Pocket PC devices, and the Seiko’s software installation is simple. Another potential bonus: Microsoft Net Framework is not required. Gordon K. Eng is a business transactional and real estate lawyer in Torrance and a member of the Los Angeles Lawyer Editorial Board. The Seiko is configured to work with a PDA. To use the Seiko this way, load its application onto the PDA via a hotsync with a desktop computer. Once that is accomplished, the user is ready to capture handwritten notes via the PDA. The pen is smaller than the other two because it does not have on-board memory. The PDA captures the handwriting as it is transmitted from the pen. The software also allows a direct transfer of images generated by the pen and stored on the PDA to the user’s desktop computer. If the PDA has e-mail capability, the user may send handwritten notes as an e-mail attachment. The Seiko pen does not come with handwriting recognition software. However, a handwriting recognition program called Rite Script (visit http://pi.parascript.com/piweb /products/ritescript) is available. In order for the software to recognize a section of text, the user must cut and paste the text into a MS Word document. I found the accuracy of Rite Script to be better than that of My Script. Rite Script also works wonders with hand-drawn charts. It will straighten lines and make your circles and rectangles look like you used a stencil to sketch them. The Seiko pen must be in line of sight with the clip sensor. This may present difficulty for users who have a tendency to curve their hand around their pen. If your hand rests between the pen and the top of the page, where you would ordinarily put the sensor clip, you will block the signal from the pen. One solution is to put the sensor clip at the bottom of the page, although the images generated by this technique must be turned rightside-up after they have been captured. The Seiko uses AAA batteries for the clip and watch batteries for the pen. The watch batteries for the pen last longer than the rechargeable batteries for the Logitech and Nokia pens but must be replaced rather than recharged. The prices of all three pens are in Mount Blanc territory. The Logitech sells for $129 to $199, the Nokia for $249, and the Seiko for $97 to $110. The Nokia and Seiko pens succeed in the task of capturing and saving what the user writes. This feature alone may be reason enough for some users to begin using a digital pen. The Logitech has promise as a more complete solution, but its handwriting recognition software must improve—or the user must have or learn to have highly legible handwriting—before the Logitech’s added capabilities can be used to advantage. None of the solutions allow the user simply to pick up the pen and go. The user either needs Anoto paper, a compatible cell phone, or a PDA and receiver clip. Even with these inconveniences, however, the pens are portable, potentially valuable tools to capture information and preserve it digitally. ■ Anita Rae Shapiro SUPERIOR COURT COMMISSIONER, RET. PRIVATE DISPUTE RESOLUTION PROBATE, CIVIL, FAMILY LAW PROBATE EXPERT WITNESS TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 E-MAIL: [email protected] http://adr-shapiro.com FEES: $300/hr Judgments Enforced Law Office of Donald P. Brigham 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 P: 949.206.1661 F: 949.206.9718 [email protected] AV Rated Los Angeles Lawyer November 2004 81 Index to Advertisers Advisory Service Group, p. 75 Tel. 310-937-7700 Jeffrey Kichaven, p. 6 Tel. 310-556-1444 www.jeffkichaven.com ROEL Construction Company, p. 51 Tel. 619-297-4156 www.roel.com Alternative Resolution Centers, p. 28 Tel. 310-312-6002 Fred M. Johnson, PhD., p. 66 Tel. 714-526-6661 e-mail: [email protected] Rogers, Sheffield & Campbell, p. 40 Tel. 805-963-9721 www.high-techlawyer.com AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 66 Tel. 800-275-8903 www.amfs.com KARS Advanced Materials, Inc., p. 63 Tel. 714- 892-8987 www.karslab.com Ronsin Legal, p. 81 Tel. 323-526-7300 www.ronsinlegal.com The Andela Consulting Group, Inc., p. 73 Tel. 818-380-3102 Krycler, Ervin, Taubman & Walheim, p. 72 Tel. 818-995-1040 www.ketw.com Rosen & Associates, PC, p. 57 Tel. 213-362-1000 www.rosen-law.com Aon Direct Administrators/LACBA Professional Liability, p. 5 Tel. 800-634-9177 www.attorneys-advantage.com Lawscribe, p. 41 Tel. 818-448-5592 Jonathan S. Rutchik, MD, p. 66 Tel. 415-771-3133 www.neoma.com A R Tech Forensic Experts, Inc., p. 45 Tel. 818-344-2700 www.lawinfo.com Lawyers’ Mutual Insurance Co., p. 7 Tel. 800-252-2045 www.lawyersmutual.com Rutter Hobbs & Davidoff, Incorporated, p. 17 Tel. 310-286-1700 www.rutterhobbs.com AT&T Wireless, Inside Back Cover Tel. 213-253-2400 www.attwireless.com Lexis Publishing, Inside Front Cover, p. 15 www.lexis.com Sales Tax Resource Group, p. 33 Tel. 714-377-2600 www.salestaxresource.com Ballenger, Cleveland & Issa LLC, p. 47 Tel. 310-873-1717 Lineback, Inc., p. 71 Tel. 714-565-1012 e-mail: [email protected] Sanli Pastore & Hill, Inc., p. 6 Tel. 310-571-3400 www.sphvalue.com Bridge Settlement Corporation, p. 27 Tel. 877-5-SETTLE www.structuredsettlements.com Law Offices of Boyd S. Lemon, p. 57 Tel. 310-827-0840 www.legalmalexpert.com Spiegel Property Damage Consulting and Forensics, p. 73 Tel. 800-266-8988 www.propertydamageinspections.com Law Office of Donald P. Brigham, p. 81 Tel. 949-206-1661 e-mail: [email protected] Arthur Mazirow, p. 42 Tel. 310-255-6114 e-mail: [email protected] Steven R. Sauer APC, p. 34 Tel. 323-933-6833 e-mail: [email protected] Bruce Broukhim, MD, p. 68 Tel. 818-556-6500 MCLEforLawyers.com, p. 34 Tel. 310-552-5382 www.MCLEforlawyers.com Stephen Sears, CPA-Attorney at Law, p. 81 www.searsatty.com Cohen Miskei & Mowrey, p. 41 Tel. 818-986-5070 e-mail: [email protected] Gil Mileikowsky, MD, p. 76 Tel. 310-858-1300 www.baby4you.net Anita Rae Shapiro, p. 81 Tel. 714-529-0415 www.adr-shapiro.com Commerce Escrow Company, p. 35 Tel. 213-484-0855 www.comescrow.com Clinton E. Miller, JD, p. 59 Tel. 408-279-1034 www.quikpage.com/m/millerjd Law Offices of James A. Stearman, p. 40 el. 714-870-8501 e-mail: [email protected] D. Wylie Associates, p. 50 Tel. 805-681-9289 www.drivingfatigue.com Miod and Company, LLP, p. 72 Tel. 818-905-5822 www.miod-cpa.com Stonefield Josephson, Inc., p. 9 Tel. 866-225-4511 www.sjaccounting.com Daniel Powers, MD, Inc., p. 53 Tel. 800-222-6768 www.TheMRIPeople.com MP Group, p. 8 Tel. 310-390-4936 www.mpgroup.com Jeff Sugar, M.D., p. 64 Tel. 310-322-6933 e-mail: [email protected] DataChasers.com, p. 54 Tel. 909-780-7892 www.datachasersinc.com Mr. Truck, p. 27 Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected] Taylor, Simonson & Winter LLP, p. 34 Tel. 909-625-4785 www.tsw-lawyers.com Narver Associates, Inc., Insurance Agency, p. 43 Tel. 626-943-2200 www.narver.com TASA, Technical Advisory Service for Attorneys, p. 68 Tel. 800-523-2319 www.tasanet.com National Institute for Trial Advocacy, p. 34 Tel. 800-225-6482 www.nita.org UCLA Extension, p. 42 Tel. 310-206-1409 www.uclaextension.edu National Properties Group, p. 47 Tel. 310-516-0022 UTIMO Organization, Inc., p. 58 Tel. 714-560-8999 www.geotechnical.com NeuroLegal Sciences, p. 67 Tel. 602-667-9100 www.neurolegalsciences.com Uptown Wellness Center, p. 41 Tel. 562-789-1999 www.uptown.topchiro.com Nextel Communications, p. 1 Tel. 866-805-9890 reference MLSAB www.nextel.com/lacba URS, p. 59 Tel. 213-996-2571 www.urscorp.com Noriega Clinics, p. 77 Tel. 323-728-8268 Verizon Wireless, p. 11 Tel. 866-899-2862 www.verizonwireless.com Online Security, p. 76 Tel. 310-815-8855 x 228, www.onlinesecurity.com Vision Sciences Research Corporation, p. 75 Tel. 925-837-2083 www.apgvsrc.com Gary Ordog, MD, p. 64 Tel. 661-799-1689 http://dwp.bigplanet.com/toxic Temmy Walker, Inc., p. 73 Tel. 818-760-3355 Ostrove, Krantz & Associates, p. 4 Tel. 323-939-3400 www.lawyers.com/ok&alaw Law Offices of Alan D. Wallace, p. 75 Tel. 818-501-0133 www.expertwitnessre.com Pacific Construction Consultants, Inc. (PCCI), p. 54 Tel. 916-638-4848 www.pcciconsultants.com Bruce Wapen, MD, p. 70 Tel 650-577-8635 www.drwapen.com Pacific Construction Management, Inc., p. 60 Tel. 800-576-7264 www.pcmi-experts.com Washington Mutual/Ted Burkow, p. 40 Tel. 310-777-2327 www.wamuloans.com/ted.burkow Pacific Health & Safety Consulting, Inc., p. 64 Tel. 949-253-4065 www.phsc-web.com West Group, Back Cover Tel. 800-762-5272 www.west.thomson.com Graham A. Purcell, MD, p. 72 Tel. 818-985-3051 www.gpurcellmd.com White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 49 Tel. 818-981-4226 www.wzwlw.com QLTT International, p. 6 Tel. 800-430-3588 www.qltt.com Witkin & Eisinger, LLC, p. 34 Tel. 310-670-1500 Quo Jure Corporation, p. 27 Tel. 800-843-0660 www.quojure.com Dr. Lewis Yablonsky, PhD., p. 57 Tel. 310-450-3697 e-mail: [email protected] Jan Raymond, p. 8 Tel. 888-676-1947 e-mail: [email protected] Zivetz, Schwartz & Saltsman, p. 53 Tel. 310-826-1040 www.zsscpa.com Rimkus Consulting Group, Inc., p. 69 Tel. 877-978-2044 www.rimkus.com ZymaX Forensics, p. 61 Tel. 805-544-4696 www.zymaxforensics.com Deadlines On Demand, p. 13 Tel. 888-363-5522 www.deadlines.com Desmond, Marcello & Amster, p. 50 Tel. 310-216-1400 www.dmavalue.com Diversified Risk Management, Inc., p. 27 Tel. 800-810-9508 www.diversifiedriskmanagement.com E. L. Evans Associates, p. 50 Tel. 310-559-4005 e-mail: [email protected] Field & Test Engineering, Inc., p. 60 Tel. 562-743-7230 e-mail: [email protected] Forensic Expert Witness Associates, p. 45 Tel. 949-640-9903 www.forensic.org ForensisGroup Inc., p. 53 Tel. 626-795-5000 www.forensisgroup.com Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 21 Tel. 310-820-3322 www.fragomen.com Marc J. Friedman, M.D., p. 59 Tel. 818-901-6600 e-mail: [email protected] Fulcrum Financial Inquiry LLP, p. 2 Tel. 213-787-4100 www.fulcruminquiry.com G. L. Howard CPA, p. 42 Tel. 562-431-9844 e-mail: [email protected] Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 47 Tel. 310-274-2304 Steven L. Gleitman, Esq., p. 4 Tel. 310-553-5080 G. Govine Consulting, p. 61 Tel. 526-564-0502 www.govineconsults.com Gursey, Schneider & Company, p. 55 Tel. 310-552-0960 www.gursey.com Hargis & Associates, Inc., p. 63 Tel. 800-554-2744 www.hargis.com Higgins, Marcus & Lovett, Inc., p. 47 Tel. 213-617-7775 www.hmlinc.com Jack Trimarco & Associates Polygraph, Inc., p. 39 Tel. 310-247-2637 e-mail: [email protected] 82 Los Angeles Lawyer November 2004 CLE Preview 28th Annual IPEL Symposium ON SATURDAY, NOVEMBER 13, the Intellectual Property and Entertainment Law Section (IPEL) will present its 28th annual symposium, titled “The Art of the Deal, Hollywood Style.” Speakers including Robert J. Dowling (who will deliver the keynote address), Jay L. Cooper, Eric Weissmann, Beth Roberts, Lawrence J. Ulman, Louis M. Meisinger, and Jeanne Newman will lead programs on production and financing deals, talent deals, and distribution deals. The symposium will take place at the Bel Air Hotel, 701 Stone Canyon Road in Los Angeles. On-site registration will begin at 7:45 A.M., with the program continuing from 8:30 A.M. to 2:00 P.M. The registration code number is 008645. The prices below include the meal. $75—CLE+PLUS members $170—IPEL Section members $200—LACBA members $235—all at-the-door registrants 4.75 CLE hours Ethics 2004 ON SATURDAY, NOVEMBER 20, the Los Angeles County Bar Association will present an ethics program titled, “Keeping Current in a World of Change.” Speakers John W. Amberg, Richard J. Burdge, Stanley E. Goldich, Diane L. Karpman, and Judge Michael D. Marcus will discuss four ethics issues: 1) mediation and arbitration, including disclosure obligations, conflicts of interest, and the confidentiality of mediation discussions, 2) ethics as affecting pocketbook issues—including fee agreements, referral arrangements, conflicts of interest, advertising, and multijurisdictional practice, 3) confidentiality of privileged communications, including inadvertent disclosures, waiver situations, and confidentiality agreements in settlements, and 4) responding ethically and effectively to hardball tactics, including how to counter groundless litigation, discovery abuses, and scheduling by ambush. The program will take place at the LACBA/Lexis Publishing Conference Center, 281 South Figueroa Street, Downtown. On-site registration and the meal will begin at 8:30 A.M., with the program continuing from 9 A.M. to 12:15 P.M. The registration code number is 008766. The prices below include the meal. $55—CLE+PLUS members $80—LACBA members $100—all others 3.25 CLE ethics hours THE SEARCHABLE CIVIL REGISTER ON THURSDAY, DECEMBER 2, the Los Angeles County Bar Association will present a demonstration of its searchable civil register database. LACBA has a searchable database replete with information about judges, commissioners, and parties. In addition, LACBA regularly downloads the superior court civil register (docket sheets) and has created a search engine allowing for searches by almost any criteria. After learning to use the database, attorneys can research a judge’s history of: peremptory challenges filed against the judge in any given year, motions for summary judgment granted and denied, days spent in trial, demurrers granted and denied, SLAPP motions granted and denied, motions to compel granted and denied, continuances granted and denied, and much more. Researchers can also find out about the number and types of cases in which various parties and law firms are or have been involved. For example, is your opposing party a vexatious litigant? Which other firms has your client retained? This powerful system will be demonstrated by two masters: John Collins, veteran trial lawyer and current president of LACBA; and Rich Walch, the departing executive director of LACBA for the last 20 years. The program will take place at the LACBA/Lexis Publishing Conference Center, 281 South Figueroa Street, Downtown. On-site registration and a meal will begin at 6 P.M., with the program continuing from 6:30 to 7:30 P.M. The registration code number is 008828. CLE+PLUS members may attend for free. $15—LACBA members $30—all others 1 CLE hour The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/. For a full listing of this month’s Association programs, please consult the County Bar Update. Los Angeles Lawyer November 2004 83 Closing Argument BY ROBERT L. BASTIAN JR. Judging at the Games IN ADDITION TO INSPIRING MILLIONS around the world, the 2004 that a U.S.-led, three-judge panel incorrectly devalued the start value Summer Olympics offered interesting lessons on the difficulty of of the parallel bars routine of South Korean all-around bronze medaluniformly judging human performance and technical skill while, at ist, Yang Tae-Young. But for this 0.1 error, Yang would have placed the same time, rewarding the athletic expression of originality and vir- ahead of American gold medalist Paul Hamm. But video review also tuosity. In sport as in law, the more subjective judging becomes, the suggested that judges missed a critical error in Yang’s routine—a 0.2 more a corrosive dilemma intrudes in choosing between ideal process deduction that would have canceled the original mistake. In the team preliminary, a Japanese judge controversially informed and ideal outcome. The opening ceremonies in Athens lent a spectacularly beautiful two U.S. gymnasts that their horizontal bar start value would be 9.8, and meaningful beginning to the Games, reminding us with spectacular notwithstanding that the same routines were consistently scored at imagery of the peculiarly Greek origin of our notions of justice, per- 10.0 in prior international competition. Ironically, the judge involved fectibility, and grace through competition. Implied, however, in our concept of justice is the possibility of corruption; in perIf a judge knows that a judge scoring another event is distorting team fectibility, flaw; and in glory, cowardice. One hitch in the otherwise flawless first night was the dashed expectation that lionscores, is it ethical for the neutral judge to correct the balance? ized Greek sprinter Kostas Kenteris would light the torch. Instead, he had missed a mandatory drug test the day before, under circumstances heightening suspicions of doping that have dogged his in the controversy had been a competitor on the horizontal bar for career. His suspension underscored how the relative simplicity of offi- Japan in 1976 in Montreal during the men’s team final, which ciating track and field—determining who runs fastest, jumps highest, involved perhaps the most overt attempt to improperly influence or throws farthest—has been replaced by sophisticated laboratory sci- gymnastic judging. Sensing that a Soviet effort to defeat dominant ence, investigation, and legal process. Still, technological innova- Japan was unraveling, a Soviet judge left his station at rings, as the Japanese team competed on the last event, to join a caucus among tions add objectivity, incrementally improving the measure of man. More problematic is fairly rewarding athletic achievement in the horizontal bar judges. His only possible reason for entering the sports that are judged, such as gymnastics, diving, and figure skat- huddle, it would seem, was to exert improper influence. When cheating appears this blatant, it raises an ethical dilemma ing, or refereed, such as basketball, soccer, and water polo. Sometimes judging bias is as prosaic as the sentimentalism of home field advan- for a would-be neutral judge. If the judge knows to a reasonable certage. Although the 2004 Greek gold medalist on rings, Dimosthenis tainty that a judge scoring another event is distorting team scores, is Tampakos, was outstanding, Bulgarian silver medalist Jordon it ethical for the neutral judge to correct the balance by inflating competitors’ scores on the event he or she is judging? If the neutral judge Jovtchev’s execution and degree of difficulty were plainly superior. A more corrosive bias is judging influenced by national origin. In gauges the bias and alters scores, the deserving team wins, but the judge men’s gymnastics, for example, controversies with nationalistic over- has corrupted the sport. No amount of chalk will create friction on tones arose over the start values of various routines. The use of a start that slippery slope. It is no sweeping endorsement of situational value is a judging reform introduced to improve scoring objectivity. ethics to suggest that in the case of blatantly corrupt judging, the best Elements of a gymnast’s routine are prescored for difficulty. To com- ethical choice may vary depending upon the situation. Our daily practice of law can be quite similar, dependent as it is pete for a perfect 10, the participant first must complete a certain number of sufficiently difficult skill-routines in combination. From the start on the skill and discretion of judges. Every time a court selects a path value, judges deduct for flaws, such as breaks in form or continuity. that expands or contracts judicial discretion, it potentially alters the Prior to the introduction of start values, men’s routines typically balance between objective and subjective determination and, thereby, began at 9.4 points, with judges permitted to add up to .6 for risk, between process and outcome. The natural imperative, then, difficult originality, and virtuosity—amorphous Olympic values. Predictably, though it may be, is to make judging decisions as objective as possithe reform has diminished creativity, and risk is now less rewarded. ble, but without sacrificing the freedom—that is, the risk, originalRussian Alexi Nemov, for example, might have taken gold instead of ity, and virtuosity—which is the end goal or, as Aristotle might say, telos, of individual athletic participation in the Games as well as our fifth on horizontal bar for his dynamic, crowd-pleasing routine. ■ Still, the reform provides competitors, judges, and educated spec- individual participation in civic life. tators with better “notice”—that is, a commonly shared objective frame of reference for how a routine will be judged. But reform has Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini, in Los not resolved all problems. Video review, for example, demonstrated Angeles. He competed in gymnastics for the University of Wisconsin, Madison. 84 Los Angeles Lawyer November 2004 When your association membership saves you money on wireless service, it’s an easy call to make. Members of the Los Angeles County Bar Association can save with AT&T Wireless. Choose from a range of already affordable calling plans and get a 5% discount on qualified wireless service charges each month. TO SIGN UP AND SAVE CALL: 1 800 459-6524 © 2003 AT&T Wireless. All Rights Reserved. General requirements: Requires credit approval, $36 Activation Fee, annual contract, $175 cancellation fee and a compatible phone. Subject to service terms and conditions and the calling plan brochure for the specific plan you choose. Service not available for purchase or use in all areas. May not be available with other offers. 5% Discount: Available only to active members of associations participating in the AT&T Wireless Association Program or its predecessor. 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