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HANIF REDUCTION OF MEDICAL BILLS AT
TRIAL-AVOIDING THE PITFALLS
By Mark G. Cunningham
In almost all
personal injury cases, a plaintiff will seek
compensation for past medical expenses. Of
course, as to that item of damage a
plaintiff has the burden of proving the
reasonable cost of reasonably necessary
medical care that plaintiff received. See,
CACI 3903(a) Often, the medical bills
incurred by a plaintiff will be paid by a
collateral source, such as Medi-Cal, Medi-Care
or private health insurance.
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DON’T GET TOO EXCITED ABOUT YOUR 998
OFFER
By Mark G. Cunningham
The other day
I was talking with a defense lawyer who had
just finished a jury trial. He was proud to
say that the verdict was considerably less
than the statutory offer he had served on
plaintiff about a year ago. When he added up
his ordinary and expert costs he was excited
at the prospect of wiping out the verdict
and maybe even getting a judgment against
the plaintiff. I hated to burst his bubble,
but I told him not to get too excited. Just
because a 998 offer is served does not mean
a judge will automatically enforce it.
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THEY DIDN'T GIVE ME ENOUGH MONEY
By Mark G. Cunningham
After a
successful verdict, it is not uncommon for
plaintiff to make a motion for new trial.
Often, the basis for the motion is
inadequate damages. In defeating such a
motion, you may want to point out to the
trial court that Code of Civil Procedure
specifically addresses the standard of
review for motions for a new trial. “A new
trial shall not be granted upon the ground
of insufficiency of the evidence to justify
the verdict or other decision, nor upon the
ground of excessive or inadequate damages,
unless after weighing the evidence the court
is convinced from the entire record,
including reasonable inferences therefrom,
that the court or jury clearly should have
reached a different verdict or decision.
C.C.P. § 657.
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YOU DIDN'T TELL ME THAT!
By Mark G. Cunningham
I have tried a number cases.
Trial is stressful enough when you are fully prepared, let alone when the other side tries to ambush you.
In a recent trial, I received a witness list from the other side.
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FIGHT THAT FELONY CONVICTION
By Mark G. Cunningham
Regrettably,
not all my clients are stellar and
upstanding citizens. Sometimes, even the
best of clients have made some bad decisions
resulting in some very bad consequences,
including a felony conviction. I have found
that you don’t have to roll over if a client
has a conviction. It doesn’t automatically
come into evidence.
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LET’S GET PHYSICAL-CONTACT
By Mark G. Cunningham
I am often
asked to defend uninsured or underinsured
motorist cases. In many of these cases the
issue of physical contact comes into play.
Insurance Code, §11580.2(b)(1)sets forth a
physical contact requirement, as does most
insurance policies. The purpose of the
“physical contact requirement” is to curb
fraud, collusion and other abuses arising
from claims that phantom cars had caused
accidents that, in fat, had resulted solely
from the carelessness of the insured. For
example, a driver who fell asleep and hit a
telephone pole might claim he had swerved
off the road to avoid being hit by an
unidentified vehicle. The provision
requiring physical contact with the unknown
vehicle was added to the statute in order to
eliminate such fictitious claims. See,
Inter-Insurance Exchange of the Automobile
Club of Southern California v. Lopez,
(1965) 238 C.A. 2d 441,444.
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YOUR HONOR, WE SHOULD SPLIT THIS
TRIAL
By Mark G. Cunningham
In any case
in which liability is tenuous and damages
are great, consideration should be given to
making a motion to bifurcate.
Code of Civil Procedure section
1048(b) states:
"The court, in furtherance of convenience or
to avoid prejudice, or when separate trials
will be conducive to expedition and economy,
may order a separate trial of any cause of
action, including a cause of action asserted
in a cross-complaint, or any separate issue
or of any number of causes of action or
issues, preserving the right of trial by
jury required by the Constitution or a
Statute of this state or of the United
States."
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IT’S NOT IMPOSSIBLE TO INTRODUCE
EVIDENCE THAT MEDICAL BILLS HAVE BEEN PAID
By Mark G. Cunningham
In a recent personal injury trial, plaintiff
had significant past medical specials, most of which had been paid at about ten cents on the dollar.
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