Defense Litigation

          Consider the following situation.  A painting subcontractor falls off scaffolding at a large construction project and alleges your client, the scaffolding contractor, caused the accident due to improper installation of the scaffolding. The injured subcontractor has not yet filed suit against your client but has indicated he will within six months.  Your client informs you that a tourist walking by witnessed the subcontractor purposefully jump from a scaffolding platform to a nearby platform, and this is what caused him to fall to the ground.  The witness is willing to submit to a deposition but is returning to Europe in a month.  Since the subcontractor has not filed suit, what can you do to preserve this eye witness testimony and use such testimony as evidence should the matter be litigated in state court.

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          The most useful method to perpetuate such testimony is to seek a court order pursuant to California Code of Civil Procedure § 2035.  In pertinent part, § 2035.101 permits pre-lawsuit discovery of one who expects to be a party to any action, whether as a plaintiff, or as a defendant, for the “purpose of perpetuating that party’s own testimony or that of another natural person or organization, or of preserving evidence for use in the event an action is subsequently filed.”  § 2035.101(a).   However, §2035.101(b) specifically states that one shall not employ the above-mentioned procedure, “for the purpose of ascertaining the possible existence of a cause of action or a defense to it, or of identifying those who might be made parties to an action not yet filed.”  Rather, courts have been more willing to utilize this procedure in situations where persons may wish to perpetuate testimony of a favorable or unfavorable witness who is aged, ill, or about to move oversees, as is the case in the above-mentioned example.  Block v. Superior Court (1963) 219 Cal. App. 2d 469, 478.  

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          The person expecting to sue or be sued must file a verified petition in the superior court of the county in which the expected adverse party resides.  The petition must set forth the following:

(a) Petitioner expects to be a party to a lawsuit in California;

(b) Petitioner is presently unable to bring that action or cause it to be brought;

(c) Petitioner involvement in the subject matter of the expected action;

(d) The names or description of those whom petitioner expects to be adverse parties;

(e) The discovery method which petitioner seeks to employ;

(f) The names and addresses of those from whom discovery is sought, and the substance of the informed expected to be elicited from each;

(g) The facts to be established by the proposed testimony (note that this precludes discovery for the purpose of ascertaining what the facts are); and

(h) The reasons why it is necessary to perpetuate testimony or preserve evidence before the lawsuit it filed.

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          Any deposition authorized by the court must be conducted in accordance with the ordinary discovery procedures pertaining to depositions. Fortunately, any deposition taken under CCP § 2035 to preserve testimony may be used as evidence in actions brought in a California court, subject to the limitations under the ordinary discovery rules relating to depositions.

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          As set forth in the example above, utilizing the pre-lawsuit deposition to preserve key evidence and perpetuate testimony is especially helpful in the defense of construction workplace accident cases.   Large construction projects often involve hundreds of workers and multiple trades, and it is not uncommon for an individual to work only one or two days on a project.  Therefore, if there is an accident on a jobsite and the injured person is alleging it is your client’s fault, it is imperative that you take immediate steps to speak with any individuals that may have witnessed the accident.  If you find an individual did witness the accident but may not be available to provide deposition or trial testimony once suit is filed, pre-lawsuit discovery, particularly the pre-lawsuit deposition, as set forth in California Code of Civil Procedure § 2025 is key to preserving this testimony. 

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          Food for thought: if you take the deposition of a friendly witness, you should consider videotaping the deposition as it may be more effective at trial when the witness cannot be there in person.

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(We will return to our series on subrogation next time.)

[This entry will kick off a short series relating to construction defect cases.]

A detailed job-file is an invaluable asset in the successful defense of a construction defect case.  Construction defect cases often arise many years after the completion of the subject construction project.  As a result, many of the workers involved in the project no longer work for the construction company and/or their memories have faded over the years regarding the facts and circumstances surrounding the project.  This is why a job-file will become the best source of information about what occurred on the project at the time it occurred. Consider the following example: plaintiff building owner alleges a plumbing company negligently installed copper piping within her property, which caused a water leak several years after the installation.  If the particular plumber involved in the installation no longer works for the plumbing company or does not have a clear recollection of the installation, absent detailed record keeping, it will be hard to refute plaintiff’s allegation and/or defend on the grounds that the piping has since been modified or altered since the original installation. However, if the plumbing company maintained its job-file and within the job-file are material sheets, specifications and/or correspondences that reflect that the plumbing company only installed PEX piping, as opposed to copper piping, plaintiff’s allegation fails and the defense prevails.  Further, a detailed job-file will assist tremendously in refreshing the recollection of the construction company’s employees involved in the project.  As a result, these employees will likely come across as more confident and credible during their depositions and trial testimony, which in turn, will strengthen the defense of the case.  Last, it is almost certain that the opposing party will request documentation relating to the construction of the project and if no documentation is produced, the construction company will appear to be careless in its recordkeeping or may even appear to be hiding something. Examples of documentation that should be maintained in a job-file include the following (this is not an exhaustive list as every project and trade may involve different or additional documentation):   

 In California, developers, designers and contractors may be sued for latent construction defects (those not apparent by reasonable inspection) up to 10 years after substantial completion of a project.  As a result, construction companies are best advised to maintain a detailed job-file for at least ten years after the completion of each project. 

Attire Before a Jury

Judges have more discretion to control an attorney’s appearance in the context of a jury trial. A California court upheld a trial judge’s authority to request that a female attorney remove an inappropriate hat. In that case, the trial judge merely requested, in front of the jury, that the attorney remove the hat because it was a distraction to the jurors. The attorney moved for a mistrial based on the judge’s suggestion. The reviewing court noted: “Parading a freakish hat before a jury could only be characterized as pure exhibitionism and courtroom exhibitionism indulged in by either men or women lawyers is a type of aberration which merits only disapproval.” People v. Rainey 224 Cal. App. 2d 93, 97 (1964). Similarly, a New York case upheld a trial judge’s order that an attorney, who was also a Catholic priest, remove his clerical garb before appearing before the jury in a criminal trial. The attorney, who represented the defendant, contended that the trial judge’s order violated his First Amendment right to free exercise of religion. The appellate court noted that the guarantee of a fair trial is so fundamental, that the court’s order must be upheld and to do otherwise would potentially subject the defendant to religious prejudice. LaRocca v. Lane 37, NY 2d 575 (1974).

Attire at Bench Trials and Hearings

Attorneys do not surrender all Constitutional rights upon entering the courtroom and an attorney arguably has more freedom to dress as he or she pleases outside of the jury’s presence. For example, a San Diego Superior Court judge informed a plaintiff’s attorney that he could not appear before the court wearing a turban unless he demonstrated a legitimate reason for wearing it. Absent a showing that the turban interfered with justice in the courtroom, the appellate court granted the attorney’s writ of mandamus permitting him to appear before the judge in the turban, without explaining its purpose. The court commented: “We hold to the belief no person need declare his or her faith, or lack of it, to engage in the practice of law. Courtroom inquisition concerning physical condition or cosmetic appearance is an invasion of privacy.” Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984).

Conclusion

Judges are entitled to require attorneys to dress formally for court appearances and may require that attorneys avoid wearing articles of clothing that distract or interfere with the administration of justice in the court room. Courtroom rules that fall reasonably under these principles appear to commonly be upheld by higher courts. Because courts are governmental bodies, however, that line may be crossed when any courtroom rule restricts an attorney’s ability to wear religious garb, as such a rule may violate an attorney’s Constitutional rights.

Of course, an attorney’s personal taste may be outweighed by the interest of his or her client if the attorney’s appearance may prejudice the client. As most judges require that attorneys dress in business attire in their courtrooms, conservative dress, which may or may not include pantsuits for women, is generally the best way to avoid the wrath of a fashion conscious judge.

During my first year of law school, the career counselor advised female law students to avoid wearing pantsuits to interviews, because senior attorneys were accustomed to courtroom rules often prohibiting pantsuits. As old-fashioned as that sounded, judges have prohibited female attorneys from wearing pantsuits in court as recently as 1999, when a female Seattle Superior Court judge stated that pantsuits were not sufficiently formal for her courtroom and threatened possible sanctions against two female attorneys in violation of her rule. She later recanted her statements after she consulted with other local judges and nearly all of them disagreed with her position.

The Basics

California judges may impose minimum dress codes for attorneys where an attorney’s attire tends to cause disorder or interferes with the functioning of the court. Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984). Other jurisdictions provide similar rules. For example, Alaska permits judges to enunciate a dress code as long as the dress code is not unreasonable and is not based on matters of personal esthetic taste. Friedman v. District Court, 611 P.2d 77 (Alaska 1980). Courtroom dress codes are rarely challenged and what constitutes a reasonable dress code varies depending upon the circumstances. In California, attorneys have a duty to “maintain the respect due to the courts of justice and judicial officers” under California Business & Professions Code Sections 6068(b) and (f). Failure to properly conduct oneself before the court is punishable by contempt and disciplinary procedures in the form of sanctions or, in extreme cases, suspension. California Code of Civil Procedure, Section 1209.

Many courts follow the dress code set forth in the United States Supreme Court Notice to Counsel, which requires attorneys to appear in “conservative business attire, preferably in a dark color keeping with the dignity of the court.” San Bernardino County Superior Court Rule 1900 uses similar language, applying the standard to attorneys, litigants, witnesses and spectators. Los Angeles County Superior Court Rule 8.2 states: “Persons in the courtroom should not dress in an inappropriate manner such as to be distracting to other or usual sensibilities . . . Attorneys and court personnel should be dressed in accordance with current customs as to their business or work attire.”

In the United Kingdom, barristers (the equivalent of litigators in the U.S.) are required to wear robes and wigs in court, eliminating the need to address fashion faux pas during trial. The British House of Lords addressed the matter of traditional courtroom garb in a series of Consultation Papers which noted that the robes and wigs maintain a “sense of solemnity and dignity of the law” and tended to create a sense of “sameness” amidst barristers, so that jurors may focus on the matters at hand rather than the barristers themselves. In the United States, however, courtroom attire can be a strategic tactic in a jury trial. Attorneys sometimes hire jury and image consultants for advice on how to dress and present themselves in court. In one memorable example, Los Angeles County prosecutor Marcia Clark made headlines with her “makeover” during the infamous O.J. Simpson trial to soften her image before the jury and public.

Courtroom attire is an important consideration for attorneys, who must balance self-expression with the need to “maintain the respect due to the courts of justice and judicial officers.” The next entry will address the legal and Constitutional implications of dress code restrictions in the context of jury trials, bench trials and hearings.