Category Archives: Trial Strategy

Trimming Pretrial Depositions

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In civil business trials, the parties, and witnesses with information within the broad scope of discovery, may be subjected to pretrial “depositions” – oral examinations under oath taken prior to trial.  The “person” deposed may be a natural person or an organization.  Cal. Civ. Proc. Code § 2025.010; FRCP R.30.  While courts impose a presumptive time limitation on depositions, often seven hours – FRCP R.30(d)(1), Cal. Civ. Proc. Code § 2025.290(a) – those limits have exceptions, the parties may be reluctant to go to court to enforce the limitations, and the judge can grant relief under the circumstances.

Where a witness’s testimony is needed and they cannot be compelled to attend the trial, it will be necessary to conduct a full direct and cross-examination, as the deposition testimony is the only means by which that witness’s testimony will be received at trial.  read more

Admitting Records in Business Trials

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A business trial lawyer’s case lives and dies on getting communications and records into evidence. While injury cases may focus on accident or surgical reconstruction, photos and videos, medical records and lost wages, business evidence weighs toward communications, contracts, financial statements and expert damage calculations. The challenge is getting those records into evidence over objections that they constitute inadmissible hearsay.

Let’s start with hearsay basics: Hearsay evidence is a statement made other than by a witness testifying at the trial offered to prove the truth of the matter stated. Cal. Ev. Code § 1200(a).

Statement of independent or operative significance

Certain statements may have independent legal significance and are therefore not offered for the truth of the matter stated. read more

Making Business Cases Relatable: Lessons from High School

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“Consumer” trial lawyers handle situations that an average juror may have personally experienced or at least can relate to – for example accidents resulting in injuries, negligent medical treatment, sexual assault or harassment or employment discrimination. The human element is immediately apparent, and the stakes feel personal.
“Business” trial lawyers, by contrast, often handle situations that a judge or average juror may never have personally experienced and could have trouble understanding – investment fraud, director or officer liability, breach of fiduciary duties, contract or licensing, infringement of intellectual property or non-medical professional negligence. These cases can feel abstract, removed from everyday experience, and frankly, less sympathetic. read more

Cross-Examination Revisited

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Some years ago, I blogged about “Effective Cross-Examination at Trial.”  I stand by those comments, but my technique has evolved. 

Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic.  I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right.  Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more

Direct Examination – Fact Witnesses

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Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words. 

Advance Planning

Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury.  This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.

I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.”  The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture.  read more

Jury De-Selection

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The trial phase that takes place before opening statements and presentation of evidence is popularly referred to as jury “selection.”  This is a misnomer.  The parties do not “select” jurors who will hear their case.  Rather, after several rounds of vetting by courthouse staff and the judge, potential jurors are seated in the jury box and become jurors by default—except to the extent they are “excused,” or “de-selected,” before trial begins.  Jury “selection” is therefore about removing bad jurors, not selecting good ones.

Potential jurors are first contacted by courthouse jury commissioners through mail solicitations based upon a “master list.”  read more

SPILLANE TRIAL GROUP OBTAINS DEFENSE VERDICT IN MEDICAL FIDUCIARY DUTY TRIAL

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Spillane Trial Group has obtained a defense jury verdict for Dr. Li Sheng Kong and his medical corporation, LSK Enterprises, Inc., against cross-complaints for breach of fiduciary duty in connection with West Coast Vascular, a vascular surgery practice in the Ventura-Santa Barbara community.

Two of the WCV partners accused the senior partner of performing surgeries not indicated by the patient’s condition, a violation of the False Claims Act.  Dr. Kong initially voted to expel the accused partner from the practice.  Then, feeling he had been unduly pressured, and suspicious of partisan motivations for, and the medical methodology underlying, the accusation, he rescinded his vote to expel the partner.  read more

Spillane Trial Group Wins $12 Million Jury Verdict

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Spillane Trial Group was asked to substitute into a case in Ventura County Superior Court for Plan B Management, Inc. against Diversified Panel Systems (“DPS”), six weeks before trial.  Plan B claimed breach of contract and fiduciary duties arising from an oral joint venture to sell cold storage panels to customers for use in indoor grow rooms.  DPS was represented by Quinn Emanuel.

We defeated two motions for issue and evidence sanctions and every motion in limine but one.  On Friday July 28, 2023 the jury rendered a verdict in favor of Plan B for $12 million.

The jury found that Plan B and DPS had entered into an oral agreement to become 50/50 partners in Canna Panels, LLC. read more

Spillane Trial Group Wins and Collects Seven Figure Judgment

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In addition to appearing for clients at the outset of a case, we appear at the eleventh hour, when summary judgment is denied, the settlement conference blows up, and the case hurtles toward trial.

This was the case for American Computers & Engineers (“ACE”), a company that rents high end custom computer equipment for vendors of major multi-media productions.  ACE rented numerous computer units to Martin Brinkerhoff Associates, Inc. (“MBA”), which produces multi-media extravaganzas for the likes of Disney and Hyundai.

MBA’s former IT Manager stole, and sold, numerous units rented by ACE.  MBA ceased making rental payments, eventually concluded their IT Manager had indeed stolen the equipment, informed ACE of the loss and applied for insurance coverage.  read more

Evidence Outside the Box

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A trial is conducted in a box. 

Literally and figuratively. 

The literal box is the windowless room in a government building in which the trial is conducted. 

The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.

Yeah, right.

Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial.  read more