![]() ![]() You can use discovery to search for information that may justify new causes of action or the addition of punitive damages. Meanwhile start your own discovery, and make it thorough. ![]() By slimming down your pleading, you will avoid a demurrer and a slug of interrogatories. Just include the simplest claims at your disposal: negligence, malpractice, breach of contract. Unless you have the hard facts at your disposal, don’t ask for punitive damages when you draft a new complaint. If you do, don’t bother reading the rest of this article. Most of you will be familiar with at least some of the following suggestions, but thanks perhaps to the luck of the draw, I rarely see them in court. If nothing else, it may convince the other side that they have an opponent who’s willing to dig deep into the law. It doesn’t have to be a magic bullet that ends a case a move or tactic that changes a lawsuit’s complexion can be equally significant. Surprise me by finding something in the dark corners of the Evidence Code or the unswept crannies of the Code of Civil Procedure (CCP). So the message of this article is a simple one: surprise me. 427…)” Now lawyers rely on both sections when they object to an expert opinion. (See Imwinkelried & Faigman, Evidence Code Section 802: The Neglected Key to Rationalizing the California Law of Expert Testimony (2009) 42 Loyola L.A. We must also consider Evidence Code section 802. University of Southern California (2013) 55 Cal.4th 747, in which our Supreme Court wrote: “Additionally, as a recent law review article explains, Evidence Code section 801 is not the only statute that governs the trial court’s gatekeeping role. The section remained in the shadows until Sargon Enterprises, Inc. The then most significant decision in the field, Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, failed to cite it even once. Until 2013, most opinions about this topic focused on Evidence Code section 801 and ignored its neighbor, Evidence Code section 802. A recent example occurred in connection with the trial court’s gatekeeping role with respect to expert witnesses. A statute can hide in plain sight for years before being discovered. ![]() Our procedural jurisprudence abounds with possibilities that a number of attorneys don’t consider or may not realize exist. While I appreciate counsel who handle their cases efficiently within the parameters of our rules (and most do), at times I would enjoy a little more derring-do. This oddity doesn’t go away upon becoming a judge. We live for the rush of a new tactic and savor the sleeping statute. Something in a lawyer’s genes makes us admire procedure, especially the novel twists. ![]()
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