“The court will accept a single expert-witness nominee from each party,” Judge Crouch continued, “and the court reserves the discretion to add one more name and will select one of the nominees to serve. Each of you will be notified by the clerk through a minute order no later than fourteen days from now. Court is adjourned.”
***
After the prescribed time limits expired, Judge Crouch appointed Katrina Borodin, MD, PhD., a well-respected medical researcher on the faculty of the Stanford Medical School. Her record was outstanding, revealing a well-educated, highly trained, and disciplined mind. On the face of it, however, she did not demonstrate much, if any, experience in forensics work.
“Refreshing,” was Fineman’s impression as he reviewed her CV. When the other trial counsel looked over the court order that eventually arrived in the mail and notified them that the judge had appointed Dr. Borodin, impressions varied. Corrigan thought: Here comes trouble, but Malone shouted, “Eureka!” and danced a jig, releasing a surge of renewed optimism about his client’s prospects. “Film at eleven,” he jubilantly announced.
Malone and the rest of the trial attorneys turned their attention to the rigors of preparing for the deposition of Dr. Borodin, which could be scheduled once she finished her review of the case and signaled her readiness to submit to questioning under oath before a court reporter. There was no mandate that her deposition be taken, because the litigants could waive that opportunity and get her testimony at trial should she be called to the stand. Future events would determine what course of action was pursued by trial counsel.
16
Status Conference
August 2007
“Court is in session, the Honorable Samantha Crouch presiding. Please be seated and come to order.” Bailiff Ted McAllister jump-started another day in the life of the Tulare County Superior Court, in and for the County of Tulare, in his department at least.
“Good morning, counsel. Would any one of you care to tell me why we’re here this morning, other than the obvious, naturally,” Judge Crouch barked from her seat on the bench. “I understand someone called the calendar clerk and demanded to schedule a status conference this morning. While it’s unusual for counsel to initiate a status conference, the court has no particular objection to assisting. However, I am very concerned about the manner in which the hearing was requested. Besides demonstrating lack of consideration for court personnel, the caller was downright rude to my clerk. My calendar is already overflowing, and I don’t have much time to work on this case today. Besides the contested law and motion matters at eight thirty this morning, I’m handling three bench trials, each one estimated to last four hours. Further, I understand this matter was scheduled for today in spite of the clerk’s advice that almost any other day would be preferable. Mr. Corrigan, explain to me what is going on, would you please?”
The courtroom was packed with attorneys and their clients who were waiting for calendar calls on their matters. The parties to the Martorano litigation were not present on this occasion, however, and the civilian population inside the courtroom was minimal. Law and motion matters in civil cases, as well as status conferences, were normally handled by counsel alone. The parties were always welcome but seldom attended such hearings, saving themselves for trial and other matters that would likely have direct impact on the final outcome of the case.
“Good morning, Your Honor. I understand the court’s scheduling challenges and apologize on behalf of all trial counsel in this proceeding for any inconvenience to the court we may have generated. We—”
“Mr. Corrigan, put a focus on this for me, please. No moving papers were filed to my knowledge, and I am wholly uninformed and ill-prepared to offer assistance, if that is of any moment to you.”
“Well, Your Honor, counsel believe your assistance is needed to clarify procedural issues facing all of us now that the court’s expert has been appointed. We—”
“Just a moment! You really expect me to provide any assistance today when no one, that’s no one, has filed any memoranda to identify the issues for review today?”
“We were hoping to—” Corrigan once again started to belabor his point, still never verbalized fully.
“Hope, as such, is not a justiciable concept—at least no law professor of mine ever hinted that civil procedure was oiled by hope. Do you grasp my meaning?”
“I believe if we could use five minutes to provide the background to Your Honor, your wisdom would then shine through for us, and we would be on our ways,” and Corrigan struck his most pathetic begging pose thus far.
“Don’t make me laugh, Mr. Corrigan,” growled the judge, really snarling now. “Although, I admit a good howl would likely serve the ends of justice at the moment. Here’s what I’m going to do. All of you are ordered to meet and confer on whatever issues you feel must be addressed today, write them down on a piece of paper so each of us may have a copy and come back to this department later this morning at eleven thirty. If I have any time then, we’ll decide what further activity is required on this so-called status conference. The sooner you get that list to my bailiff, the more time I may have to become informed of the issues. Now, you’re all excused.”
Counsel did not rush from the courtroom as though in retreat, yet their movements were crisp and looked somewhat choreographed. They moved out smartly, as it were. Grateful to be out of range of the judge’s obvious wrath, they regathered in a conference room available for just this type of meeting inside the county law library. Once ensconced inside a room with the door closed tightly, expletives and hee-haws of various colors were voiced.
“PMS?” someone ventured cautiously.
No comments, smart or otherwise.
“Maybe my assistant was a little too insistent on the telephone when she set this status conference,” Corrigan observed. “Anyway, the judge has a point. If I were in her shoes, I’d be plenty pissed. I know we agreed to bring this status conference to hearing as soon as possible, but it does seem a little presumptuous of us not to have filed a memo of points and authorities for the judge’s benefit, I must say.”
“What the hell good is a memo, anyway?” Malone protested. “My client didn’t murder Martorano.”
“Save it for closing argument, Charles,” Corrigan intoned. “We’re working on some issues of civil procedure. I understand that you criminal-defense lawyers have little patience for some of the finer points of civil law.”
“Res ipsa loquitur to you, pal,” Charlie chortled as though he had actually contributed something meaningful to the conversation. “And quare clausum fregit besides, that is, while I’m thinking of it!” Charlie chortled, evidencing his lack-luster talent as a Latin scholar and lining a figurative foul ball into the right-field seats.
“Okay, okay, let’s get busy on our assignment. We’re due back in the courtroom in two and a half hours. I’ve spoken with a couple of you already about my concerns, and your comments reinforce my sense that we need to formulate some rules for what the court’s expert will be doing in this case. If we don’t, the expert could run away with the case, you know!” said Corrigan, starting to bristle.
“So, what’s the problem?” Malone queried, showing genuine interest in assisting in the resolution of issues he was yet to fathom.
“There are many issues, although the overriding one can be labeled the ‘court-appointed expert’s deposition.’ Some of us have discussed the need to take the deposition of the judge’s expert. Frankly, I wouldn’t consider going on to trial without benefit of knowing exactly what the court expert’s testimony will be. And we want a transcript of her opinions and the reasons in support thereof. In spinning this out a bit, it occurred to some of us that the expert may want to develop factual detail that she might think is missing at this point. How far is she allowed to go in pursuing any further investigation and development of additional factual information? And who bears the costs of any additional investigation that she might undertake?” Corrigan breathed a heavy si
gh and stretched his legs outwardly from the chair he occupied.
Attorney Fineman broke his uncharacteristic silence. “Frankly, Guadalupe Figueroa doesn’t give a hoot what the court’s expert might say. She is entitled to her share of the estate and determination of her father’s precise cause of death will not change anything from her point of view. She regrets the position that she finds herself in as a result of her father’s approach to handling the matter of her conception. She would have preferred a chance to know and love him, and her heart was broken through her family’s interference. But she also understands the circumstances and holds no grudges. The point is that my client should not be at financial risk for payment of any costs of the court’s expert, regardless.”
“Ditto, for the Conservancy Fund,” added Lopez, whose presence had nearly been overlooked or forgotten.
Fineman added, “It seems pretty simple to me. The parties interested in the precise cause of death should be the ones responsible for the expert’s costs, winner take all, to be precise. To repeat myself, my client is not concerned with the criminal case or the finer points of causation in the will contest.”
Corrigan spoke up. “The judge wants a memorandum. I say, let’s give her one. I do have a brief list of points I was hoping to cover at the hearing. We could start with my list and add to it.”
Fineman interjected, “Count me out.”
“Ditto,” said Lopez
“Okay, okay, but you might want to listen to what develops. I’d put even money on it,” Corrigan offered, “but I bet the judge will also tell us today which case, civil or criminal, goes to trial first.”
Malone sat up. “Now you’re talking my language. I’ll hang around awhile.”
At 11:25 a.m. all counsel filed into the courtroom. Corrigan had prepared and delivered to the clerk an impressive list of questions, discussion points essentially, for the judge’s consideration before the status conference resumed. He had no idea if the judge had had any time to review it. He was hopeful and was not disappointed by what he heard initially when she reclaimed her place on the bench.
“Please be seated, gentlemen. The court apologizes for its behavior this morning. It’s been very busy today, and the court certainly appreciates your consideration. As it turns out, the rest of the day has cleared up, and we have plenty of time for the status conference. It appears my demeanor this morning convinced everyone to go into the hallway and settle their cases. Nothing like a crabby judge to cause things to move along efficiently. Nonetheless, you have my sincere apology for my behavior earlier in the day.
“And thanks to Mr. Corrigan’s fine efforts, I received his summary of issues with enough time to become a little better informed, at least. Not a very fancy job, I must say, but concise. Admirable.
“Now from the court’s perspective there are three primary points for our discussion today: the particular rules applicable to the work of the court’s expert, which parties bear the costs of this expert, and the order of trials. There is no procedure for a tentative ruling in status conferences and there was no way to give all of you notice of any such ruling had I managed to prepare one. Regardless, I have one in mind and will announce it now.
“Initially, I’ve given some thought to the issue of which parties should rightfully bear the expert’s expenses,” the judge continued. “One way of addressing the issue is to determine who is at risk as a result of the ultimate outcome of the civil trial. In other words, whoever is benefited or burdened by the jury’s decision should undertake to bear the risk of paying such costs. We must start with the notion that the decedent’s estate should absorb these costs in large part. As a practical matter, the estate can afford this approach. But saying this much does not give us the full picture.
“For example,” she said continuing her explanation, “once the final outcome is determined there may be equities in favor of the estate that could be addressed at that time. I am hereby granting the estate the right to seek reimbursement of such costs from any particular party, proportionately, depending on the merits of any such motion so filed. If Ms. Barnes, Mr. Malone’s client, loses her contest, the court would likely grant an order, upon proper showing, that she pay costs to the estate in an amount that is directly related to the defense of her claim, excluding attorney fees, of course, which are not recoverable in this type of matter. Likewise, if she wins the case and succeeds on her claim her recovery cannot be diminished by indirect charge backs the estate might claim for other aspects of this litigation. In the case of Ms. Figueroa, Mr. Fineman’s client, should she prevail at trial, the court would deny a motion on behalf of the estate for reimbursement from her. Ms. Figueroa has a position similar to Ms. Barnes’s except that payments to her would come from the residuary of the estate. Yet, Ms. Figueroa inherits from the estate, if at all, as a pretermitted heir, that is, someone inadvertently omitted by Mr. Martorano when he and his attorneys prepared his will. Consequently, the success of her claim is unrelated to cause of death, and she should not be at risk to pay a share of the forensic experts’ fees in this case. Likewise, as to the claim of the Conservancy Fund, it challenges my imagination to foresee any basis for that fund to become involved in the costs of these experts.”
“Very well,” continued the judge with her characteristic patience and a barely discernible shrug. “The next point on my list of informal tentative rulings is the issue of the order of trials, that is to say, which one, criminal or civil, should be tried first? As you all know, each case deals with allegations of homicide. If the civil case covering the will contest proceeds first, Marti Barnes, a contestant in the civil case and the defendant in the criminal case, will be faced with perplexing self-incrimination issues. Under the Fifth Amendment of the U.S. Constitution, she has the fundamental right not to be called as a witness against herself in the murder trial. To protect that right, she would have to consider not testifying in the civil case if it went first in order of the two trials.
“And that’s just the beginning of the many problems in this case. If the civil jury awarded her a share of the estate, it would carry the presumption that she did not kill Mr. Martorano. Otherwise, she would be disqualified from taking a share of her victim’s estate, if she were indeed his murderess. Thinking out loud, again, I doubt that the district attorney would be bound by the jury’s determination on its face, whatever it happened to be, although some information from the civil trial might be developed that would suggest that the prosecutor review his case before continuing with the criminal prosecution. I am not suggesting for a minute that I have any insight into the final outcome or that I have any bias regarding the outcome of the will contest. Is everyone with me on this?”
Malone could not contain himself. He was on his feet. “That’s double jeopardy,” nearly exploding in launching his objection.
“I don’t follow, Mr. Malone. Please elaborate for me,” coaxed the judge.
“Well, it sounds like you want, excuse me, what the court wants, is for my client to be exposed to two separate trials. There’s no guarantee both juries would reach similar results. I can’t be a party to a procedure that places that kind of emotional burden on her.”
“Perhaps, Mr. Malone, you could let this court and counsel know your secret to avoiding two separate trials. Please inform us all, if you don’t mind.”
Right in the chops; Malone took it pretty hard. He paused awkwardly and glanced toward his notes. Nothing there, as usual. This was a very crucial issue, and frankly, he was surprised he had not thought it through before now or at the very least developed a plausible argument he could present at this time.
Almost begging now, he gazed at Judge Crouch and pleaded, “I have to admit, Your Honor, I have not thought the issue through carefully. But I will, I guarantee that. Uh, we had no notice of this point being raised today.”
“You’re absolutely correct about the lack of notice. However, whether we settle the issue today or at a later hearing, we must deal with it. I see it’s the no
on hour, so court is adjourned until 1:30 p.m.” and without further comment she left the bench. If she heard the pleas from counsel, she made no acknowledgment.
The attorneys went their separate ways over the lunch hour. The local attorneys had the advantage of “home field,” but that made them more susceptible to other pressing matters during the lunch hour. The out-of-town lawyers could have a decent lunch in the basement of the courthouse and do some research in the law library. Malone had no choice. He raced to his office to inveigle Gloria to rearrange the afternoon schedule since he was required to go back to see Judge Crouch after lunch. His assistant was not there, so he had to leave her a lengthy note of instructions. She was up to the task, and fortunately for her boss, she did not take this kind of news as a personal assault on her territory. She fully understood what pressures trial lawyers faced and was pleased to try to lighten the load rather than compound it by personal outbursts and emotional tantrums in response to such a modest crisis.
He was a lucky lawyer and knew it. This time, he would remember to get flowers for her. How many countless times had she bailed him out (one time, not figuratively) and yet he still took her talent and great attitude for granted. Ever since the broken-hand incident, Charlie had been forming up a new philosophy of living, and one thing he now knew for certain: take nothing for granted. When you do, you likely regret it once you realize the chance to say a heartfelt “thank-you” has melted away.
Charlie had an impulse to call Marti Barnes, but it suddenly hit him that she was still in custody. He was usually on good terms with the jailers, but he did not have the spare time to do the drill at the jail and make it back to court by 1:30. He made a mental note to contact her as soon as possible in the next several days. He was perplexed about Judge Crouch’s comments this morning. He would not say so out loud, but he was embarrassed to have been caught short on the legal procedure issue about order of the two trials. Maybe, just maybe, he had stumbled onto his own personal puzzle, which had to be untangled before he would get another good night’s sleep, now that it was exposed for all to examine. At stake were critical issues and the outcome of each would finally determine his client’s future, including her life expectancy.
(2012) The Court's Expert Page 24