Why does a lawsuit need to be filed in my San Diego car accident case?

July 29th, 2020

By Omid Rejali, Esq.

There are many reasons why a lawsuit may need to be filed in your San Diego accident case. Here are some of the most common reasons.

1) The insurance company is refusing to accept responsibility

One of the most common reasons why you may need to file a lawsuit is because the insurance company is denying to accept responsibility. This is the most frustrating thing we see in our client's cases. Insurance companies are in the business in denying claims. The longer they drag a case out, the more money they make on the money that they have already had to set aside. Unfortunately, this is a tactic they use to force you to file a lawsuit.

2) The insurance company is not offering what you or your attorney think is fair

Many times insurance companies come up with excuses for not wanting to pay full value for your injuries. For example, they will try to pay for some of the medical bills necessitated our of the car accident, but not want to pay for some of the other ones. When this happens they usually argue that the medical treatment that you received was not "reasonable or necessary." On top of that even if they do accept the medical bills they want to get a discount on the amount of the bills that you owe to your doctors and they caused. Issues such as this lead to a standstill in the negotiation process and can lead to your attorney recommending filing a lawsuit.

3) You believe that the value of your case is worth more than the insurance company is offering you

We see this a lot. Clients coming to us from other firms wanting us to review their case to see if they are getting full value for their injuries. If you suspect that this is happening it is always a good idea to consult with other San Diego personal injury lawyers to see if you are getting the full value for you car accident case.

There they are. These are some of the reasons why a lawsuit needs to be filed.

Thank you for reading my blog. Remember if you have any questions, feel free to call me at 619-887-4148 or text at 619-485-6313. I am happy to answer any of your questions.

What is a medical lien?

July 23rd, 2020

By Omid Rejali Esq.

A medical lien is a contract.

Many times we have clients who either do not have health insurance; don't have the best health insurance or for a variety of other reasons do not want to use their own health insurance when they are involved in a San Diego car accident.

When faced with situations such as the ones mentioned we can provide our clients with options to treat with the best health care providers without having to pay any money upfront. These doctors are willing to treat the client, but will have a lien on the case.

What that means is that, once the case is settled either through mediation (I will discuss this in a different blog) or trial, the doctors will then collect their fee for the services they have provided.

So, there it is. A lien put simply is nothing more than a contract between you and the health care provider who has cared for you to be able to get paid for the services rendered at some time in the future.

Hope this information helps you.

We are always here to help or answer any questions you may have.

Thank you for reading my blog.

What to do following your san diego car accident case if there is no police report?

July 23rd, 2020

By Omid Rejali, Esq.

Many times when you are involved in a minor san diego car accident the police are not called or you may feel that a police report is not required because you were rear ended.

Unfortunately, I have seen time and time again when even when you have been rear-ended the insurance company for the at-fault party will come up with the wildest theories to put you at fault. For example, they may say that you backed into their insured.

Here are my suggestions when a police report has not been obtained.

1) Document everything immediately:

As soon as you get to a safe place, perhaps that night or the next day, document everything that happened on a piece of paper, on your phone, or on your computer. This information is critical because the closer to the time of the accident that you documents the events, the more fresh it is in your mind.

2) Contact your local police agency and make a police report

Based on the information that you have documented, you can then contact your nearest police agency and make a traffic collision report. They will take your information down and based on what you have provided to them will create a traffic collision police report.

3) If possible, have the driver of the other vehicle draw on a piece of paper how the accident took place

To record how the accident happened from the at-fault parties view point have them draw on a piece of paper and explain how they believe the incident took place.

4) If there are any witnesses make sure you get their information

If any witnesses witnessed the san diego car accident take place, make sure you get their name, phone number, and email address. The witnesses can be critical to proving how the events took place.

Insurance companies will go to great lengths to not pay money for the harm they have caused, including placing their own insured in harms way by exposing them to an excess verdict (more on this in a different blog). In a recent case, the insurance company for the at-fault party took 100% responsibility for the San Diego car accident initially, and once they found out that our client has life-long injuries chose to change their story.

Keep these points in mind and if you have any questions, feel free to call us. We are happy to help.

Thank you for reading my blog.


November 8th, 2019

By Omid Rejali, Esq.

On October 23, 2019, a San Diego Jury awarded my client $145,000 for injuries she suffered when a McDonald's employee failed to securely fasten the lid on a cup of coffee at the drive through window.

This is one of the more enjoyable trials that I've had so far because McDonald's was refusing to accept any responsibility for their conduct and was blaming my client. The truth is, they thought because of all of the propaganda that they had created surrounding the infamous McDonald's hot coffee spill case back in the 90's, that they were going to be able to play into people's bias. As we know now, that did not work. Here's my interpretation of why it did not work.

Our jury system is the BEST system that we have in the world. No other countries system of justice comes even close to the jury system we have developed. The jury collectively has a lot of power when making a decision on behalf of other members of our community, and when our jury members come together and serve on a jury they are there to do what is RIGHT and JUST.

On October 23, 2019, they did exactly that. The essence of each verdict comes from our fundamental need to feel connected to something bigger and to help one another. As human beings, we all want to feel connected with one another and help each other. When someone has done something wrong, as McDonald's had done in this case, when the truth is revealed, our jury members ALWAYS do the right thing.

The unfortunate thing is, wrongdoers, many times don't want to accept responsibility. And that is why, I do what I do. When someone has committed a wrong, they should accept FULL responsibility for their conduct, or they should face a jury of their peers and explain themselves. Reality is, most the times, it's not the wrongdoer that is refusing to accept responsibility, it is the insurance company and their attorneys who are trying to protect their MONEY coffins.

Justice was served on October 23, 2019 and I am happy to have been part of it.

Thank you for reading my blog.


June 16th, 2019

Omid Rejali, Esq.


Why not?

Insurance companies are in the business of making money and increasing the profits of their shareholders. To that end, they are only looking at their own interests and not of that of an injured party.

If the insurance company is offering to settle your claim for $10,000 you need to be asking yourself several questions.

1) What stage of the process is the claim at? meaning has a lawsuit been filed, or is the offer given before a lawsuit has been filed?

2) What is my attorneys reputation in the community?

3) What are my injuries?

4) What is the property damages amount?

Let's look at this questions from two angles. First, let's assume that you have received this offer prior to filing of a lawsuit.

If this is the case, your claim is at a minimum worth $30,000 to $40,000. Why? Because one of the factors among many others the insurance company looks at when making its offer is its insureds exposure, and the farther away they are from a trial the smaller their exposure is. By the same token, the closer they get to trial the larger their exposure becomes.

Now let's assume a lawsuit has been filed. Once a lawsuit has been filed the time starts ticking. Generally, once a lawsuit has been filed the courts require that a case be tried between 18 to 24 months after filing. So, following that same logic, as the case gets closer to trial, absent any bad facts, meaning you had hid something from your attorney, the offer will increase as the case gets closer to trial.

Ultimately, the decision to settle a case is always the claimant's. However, you want to make sure that you have someone that has your best interest in mind when settling your claim. Make sure that you actually feel comfortable with your attorney.

Thank you for reading my blog. I hope I have been able to give you useful information.

In my following blogs, I will discuss some of the other factors insurance companies consider in making their offers.


May 29th, 2019

By Omid Rejali, Esq.

You've been injured, you hire an attorney, you seek treatment, and now its time to settle your claim with the insurance company. Are you getting the full value of your claim? Here are three reasons why you should speak with a trial lawyer prior to accepting a settlement.

1) Trial lawyers have a better understanding of the value of your claim

Trial lawyers are story tellers. To be able to tell your story, trial lawyers have to get to know you inside and out. What trial lawyers understand and the law also recognizes is that we are all unique humans, and for that reason no one has a right to take away from us our health, and cause us pain, suffering, disfigurement and loss of enjoyment of life. And if they do, they will have to pay for it. Remember, no amount of money will replace that, however, a jurors job is to put a valuation on that. A trial lawyer knows that, and by getting to know you, will be able to better assess the value of your personal injury claim.

2) A fresh set of eyes always adds a different perspective

As trial lawyers, we usually come into the case when the case is ready to go to trial. Having come in later, it allows the trial lawyer to take a look at all of the facts from an outsiders view, and based on his experience, and training and prior trial results give a better prediction on how much the value of your claim may be.

3) Trial lawyers care

Trial lawyers care. This is not to say your own attorney does not care. Trial lawyers however have a burning desire to make sure the insurance company pays what has been rightfully taken from you. This also is not to say that every case should go to trial. What trial lawyers care about however is to make sure that the insurance company pays for all the harms and losses you have suffered.

In conclusion, prior to accepting a settlement offer it would not hurt to speak to a trial lawyer to make sure you are receiving the full value of your claim. Thank you for reading my blog.


3 Questions You Should Ask Before Hiring Your San Diego Car Accident Lawyer

3 Reasons Why You Should Delay Settling Your San Diego Car Accident Claim

How Will the Insurance Company Evaluate my San Diego Car Accident Claim


September 25th, 2018

By S.J. Walker

Sell your damages to the jury, and sell them well. It is easy enough to grab different witnesses who have some relation to the case and ask them to testify. However, if not done properly this will likely become a one-way ticket to an objection based on cumulative evidence. Many times, it is easiest to put the plaintiff on the stand because the plaintiff is the person who is best qualified to testify about their damages or their loss of enjoyment in their life. This easily can lead to a pitfall, a Catch-22 if you will. If the plaintiff testifies truthfully of their injuries, they are likely to come off as whiners to the jury. It is not likely that a jury takes well to whiners. Secondly, jury’s likely expect plaintiff’s to exaggerate their suffering. Thus putting your plaintiff on the stand may not be your best choice, right away.

Avoiding the “Whiner” Dilemma:

There is no doubt that the injured person has the most information on their pain and suffering. In most cases, it would be a great idea to put them on the stand, but maybe not right away. Instead, ask the injured party about people they may know who could testify to their damages. Make a list of these witness including names, phone numbers, emails, and possibly what they will testify. Then contact the potential witness.

An article by John F. Denove provides some questions to ask yourself when you are contacting a potential witness:

“1.) Do I believe this witness?”

If you do not believe the witness, it is almost a sure thing that the jury will not believe the witness either. If they aren’t credible, get rid of them.

“2.) How often did the witness interact with the plaintiff before the injury?"

"3.) How often has the witness interacted with the plaintiff after the injury?”

These two questions go hand in hand. This is establishing a foundation for the evidence. If the witness can testify to the plaintiff enjoying life to the fullest, then it will become a compare and contrast situation; people who knew the plaintiff before the accident vs. people who knew the plaintiff after the accident. These two different witnesses (or possibly the same witness) will likely tell a shockingly different before and after story that will stick with the jury.

“4.) Does the witness have personal knowledge of the substance to support the testimony? “

Under the Federal Rules of Evidence 602 and 603, personal knowledge and an oath or affirmation to tell the truth determine the competency of a witness. If the witness fails to have personal knowledge or fails to affirm or take an oath to tell the truth, they will be deemed incompetent to testify. If your jurisdiction does not follow the Federal Rules of Evidence, it is likely that the same if not similar rules that apply. Make sure the witness has personal knowledge of the substance to support the testimony.

“5.) Does the witness have any “story” to tell about the plaintiff, either before or after the injury?”

Stories help jurors remember things. The more detail in a story, the more enthralled a juror will be; an enthralled juror will remember facts and details of the story. The side that tells the best story wins the case.

“6.) On Cross-Examination, will the witness be easily led or confused?”

If a witness is going to be easily led or confused, their credibility will be shot with the jury. This makes the testimony a waste of your time, their time, and the courts time. You can minimize this result by prepping the witness thoroughly before calling them to the stand.

“7.) Does the witness come across as an advocate?”

You want the witness on your client’s side. You want them fighting for your client. If they seem to dislike your client, a jury will know. They may wonder why that witness dislikes your client. What did your client do?

John F. Denvoe, The Advocate Magazine 85, (January 2017).

After you have found these witnesses, and they have passed the questions above to your satisfaction, call them to the stand before the plaintiff. If the jury hears testimony from a number of witnesses before the plaintiff, they are likely to view them as less of a whiner, and feel more sympathetic to their story. Have the plaintiff go last or close to last.

Avoiding an Objection Based on Cumulative Testimony:

Expect the defense will object that the testimony is cumulative if you plan on using multiple lay witnesses to testify on the issues of general damages. Be ready to provide a concise statement as to how the testimony will not be duplicative.

It is an easy enough explanation. CACI 3905A provides: “[Past] [and] [future] [physical pain / mental suffering / loss of enjoyment of life / disfigurement / physical impairment / inconvenience / grief / anxiety / humiliation / emotional distress / [insert other damages].” Use this as your guide. For example, advise the judge that witness 1 will testify about plaintiff’s physical impairment; witness 2 will testify about plaintiffs loss of enjoyment of life; Witness 3 will testify to plaintiff’s physical pain; witness 4 will testify about plaintiff’s family life; and another will testify about plaintiff’s social life. Although a judge will likely delay a pre-trial motion based on evidence being cumulative, they will caution you. As a San Diego, California personal injury attorney or elsewhere, put your best lay witnesses on first, rather than at the end when the judge may rule the testimony cumulative.

Avoiding an Objection Based on Cumulative Demonstrative Evidence:

Another useful way to sell your general damages to a jury is through the use of exhibits. There are a variety of demonstrative exhibits that can be used to show damages. Photos, videos, letters, anniversary cards, time-lines, animations, medical illustrations and medical records assist a jury in determining the extent or value of a plaintiff’s general damages. However, again, it is likely that the defense will object based on the cumulative evidence.

When you use photographs, some photographs of the plaintiff’s injuries will be useful to show, especially if the photo is helpful in forming an expert’s opinion about the nature and extent of the plaintiff’s injuries. Also, pre-injury photographs effectively compare life of the plaintiff before and after the accident. A defendant will object that the photographs are cumulative, but a quick response to this objection is that it would take the witness much longer to describe the testimony in detail than to make a brief statement describing a photograph. This is a policy argument that saves the courts time and money. Another tactic is similar to having different witnesses talk about different subjects as discussed above. With pictures, have 3 different witnesses discuss 3 pictures rather than one witness discussing 9 pictures.

For example, have one witness discuss the plaintiff’s love of skiing and only use skiing photographs with that witness. Use another witness to speak about the plaintiff’s activities with their family by showing photographs of these activities. Use another witness to speak about the plaintiff’s hobby of building furniture and only use photographs authenticating the furniture the plaintiff has built.

Pictures are powerful. Find them at the beginning of the case.

Get More from Medical Records

As a personal injury attorney in San Diego, California, or a small town in Pennsylvania, medical records become an essential tool to proving your damages to the jury. Many attorneys read only the physical records and only the records that are typed. Why? Well, attorneys are busy people and finding the gems that lie in the minute takes time.

Look for nursing notes and therapy notes that contain comments about how the plaintiff felt or what the plaintiff’s concerns were about the future. Look for pain drawings that the plaintiff filled out, such as a circle where the plaintiff’s pain was located. A referral from a physician for an MRI or EMG will likely contain a reason for the exam; “chronic back pain,” “burning in the back of the neck.” Bringing these notes to the attention of a jury is more effective than having your client verbally describe the pain when the records were prepared years earlier.

General damages require evidence. What evidence you decide to use is determined by the evidence you have obtained. Find as much evidence as possible because selling your damages to the jury will become much easier when you can choose only the best evidence to prove your point.

For more examples on Exhibits and Testimony see: John F. Denvoe, The Advocate Magazine 85, (January 2017).


August 29th, 2018

By S.J. Walker

Preliminary written discovery is a constant in all of litigation. The goal: to permit parties to evaluate the case, identify issues, and prepare for depositions and trial. Much of written discovery begins with form interrogatories and special interrogatories. Unfortunately, novice lawyers, and possibly some seasoned lawyers, forget that the defense counsel will use the information in your client’s interrogatories at deposition and throughout the case. As such, making sure a proper analysis is done on each question will ensure your client provides the proper and accurate responses. It is the professional responsibility of the lawyer to represent their client competently and diligently, and without a proper analysis of each question, an attorney may be falling short of one, if not both, of these professional duties.

Analysis Step 1: Must / Should I object?

Begin by asking yourself “Must/should I object.” There are certain and pertinent moments when an attorney must object in order to protect attorney-client privilege, the client’s privacy, or to preserve an objection. Answering interrogatories without regard to the privacy or confidentiality of your client will lead the attorney on a quick road to sanctions, malpractice, or disbarment. This seems simple enough, but many times attorney’s do not take the time to analyze and ensure that the answer they provide to a special interrogatory is not confined to attorney-client privilege, client’s right to privacy, or if the interrogatory is objectionable. As far as I can see, there are multiple reasons an attorney will “mess up” on responding to the interrogatory: (1) an attorney is busy, and they forget or utterly disregard the power of the interrogatory; (2) the lawyer is not quite at the level of competency he/she needs to be at (such as a novice attorney); and/or (3) they simply missed an objection or did not know that objection was proper (again, lack of competency).

“Must / Should I object” step is arguably the most important step in analyzing a response to an interrogatory. If responses to interrogatories are not timely, all objections are waived. Thus, if you miss your objection then it is not preserved, which can lead to multiple consequences. A practitioner who errors on the side of over-objecting will fair better than the attorney who missed a significant objection. Slow down, analyze, and object.

Analysis Step 2: Should Information Be Provided Even If An Objection Is Stated?

The second question to ask is: “Should information be provided even if an objection is stated?” Pick your battles wisely. Getting into a discovery battle is an excessive depletion of a Plaintiff’s time, and a serious billing nightmare for a defense attorney. Thus, it is important to avoid the fight if you can.

Most requests should be answered, even if an objection is stated. But objecting to every request without providing an answer will surely lead to a motion to compel evidence. Nothing will create a response from defense more than a response that insinuates that you are hiding something. Some requests are improper in their form, yet the other side is entitled to the information. Other requests seek information that may damage your case. Some require a showing of relevance that a judge will eventually grant. In these situations, state your objection, but comply with the request. Specify that you are not waiving your objection by stating, “Subject to and without waiving the objections, plaintiff responds as follows. . .”

Analysis Step 3: What Objection Should I Make?

Having an arsenal of objections will help an attorney to know what to object and how to do it. Many objections have case law attached to them, and an attorney should cite to that case law. Using legal authority will assist in future battles if a motion to compel arises and the lawyer must write an opposition to the motion to compel. It creates consistency within the documents that make an attorney’s opposition stronger. Make the objection simple and clear, it does not need to be an elaborate, scholarly work of art. Don’t reinvent the wheel. Find tools and articles of cases that have been used in the past. Below are some objections to be made.

*Argumentative: Objection. This discovery request as phrased is argumentative. It requires the adoption of an assumption which is improper.

-Example: “When did you stop taking the drug?” This question assumes facts that might not be true, but requires the answer to adopt the assumption. The client may never have been taking the drug in the first place.

*Already Asked/Repetitive: Objection. This discovery request has already been asked (see Interrogatory/Request No. ___) Continuous discovery into the same matter constitutes oppression and Plaintiff further objects on this ground.

Find a case, and cite to it that seems relevant. Although this is not an assertive objection, if the defendant continuously seeks the same information it can be grounds for a protective order based on oppression. Thus, bring attention to it by objecting.

*Attorney Work-Product Protection: Objection. This discovery request seeks attorney work product.

Code of Civil Procedure section 2018.030 subdivision (a) states, “[a] writing that reflects an attorney’s impressions, conclusions, opinion, or legal research or theories is not discoverable under any circumstances.” In analyzing the work-product privilege, courts have determined that only derivative materials are protected. “Derivative work-product is that information created by or resulting from an attorney’s work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or facts involved. Non-derivative material includes those that are only evidentiary in nature.

There is plenty of case law to help determine if material is derivative or non-derivative in its nature. As such, use cases that are on point to tailor this objection.

*Collateral Source Rule: Objection. This discovery request seeks information not relevant to the subject matter of this lawsuit and is not calculated to lead to the discovery of admissible evidence.

This specific rule is usually applied to insurance. Code of Civil Procedure section 2017.210 permits discovery only of “Insurance. . . [that] may be liable to satisfy in whole or in part a judgement that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.” Health insurance is not insurance available to satisfy a judgement or reimburse of payments made to satisfy the judgment.

Another example that could satisfy this objection, would be the violation of your clients right to privacy. For example, personal financial information is within this protection under the California Constitution, article I, section 1, and thus would suffice to fit under a collateral rule objection.

As there are numerous other objections that could be had, I will stop here. But it is imperative to know your objections, how to use them, and to argue your objection with quick concise sentences and cited authority. Authority will assist in getting your objections through a motion to compel. It is an obvious fact that attorney’s are busy and cannot spend a considerable amount of time on interrogatories. Because of this lack of time, spend a few hours compiling a list of objections, case law that corroborates those objections, and use that list to assist you in saving time on interrogatories. Knowing your objections will surely save time on your interrogatories. Thus, take the three steps above and prepare your interrogatory to avoid inadvertently damaging your case by failing to object, or providing too much information.

If you or a loved one has been seriously injured contact your San Diego Personal Injury today.


August 16th, 2018

- By S.J. Walker

- J.D. Candidate

Direct examination is a talent that draws on knowledge, practice, and skill. The rules governing direct examination assist the judge or jury in discovering the facts and basis behind the case, and should be used to go beyond simply reiterating the evidence that is already admitted. To ensure that an attorney makes the most out of their time with their witness, there are important tactics that can be used such as the importance of certain moments when leading a witness may be appropriate and permissible; how to use documents; and how not to waste your time redirecting unless it truly adds something to the prior testimony.

Know What’s Permissible with Regards to Leading Questions:

In a jury trial or bench trial, the lawyers in a court room know the rule not to ask leading questions on direct examination. But it is likely that many of these attorneys adhere to this rule a little more strictly than what is necessary. Take, for example, an instance where a witness seems to ramble. As the witness ponders her answer with a couple minutes, two different consequences may occur: (1) A jury’s attention to detail may be averted, or (2) the witness may look unknowledgeable. This can happen even as the witness goes through the normal cognitive process of trying to recall something from memory. In an instance such as this, an obvious choice to avoid these consequences would be to spend more time preparing the witness. However, what happens in the moment of the direct examination? How can an attorney who is caught off guard best advocate to ensure the witness is providing everything that is relevant? Shouldn’t an attorney be allowed to ask a leading question to avoid the consequences to the jury or judge?

The answer is a common one in the law, it depends. There is authority to allow a leading question. Evidence Code Section 767 provides an introduction that creates an exception to prohibiting leading questions, stating that such questions are allowed in “special circumstances” or “where the interests of justice require.” The comment to the rule allows leading questions on direct examination where there is little danger of improper suggestion or where such questions are necessary to obtain relevant evidence. Take for example, asking a witness when she started her work. This would be an example of a time that a leading question may be permissible because there is little danger of improper suggestion; the attorney is establishing a background fact that is uncontested. Indeed, preliminary matters are exempt from the bar on leading questions, this was simply to be used as an example.

When things move forward to contested matters, it is important to be wary of leading questions, as they may lead the attorney to receiving objections; however, it is important not to be too wary, there could be an argument to be made as to why the leading question may not be improper because there would be little danger of improper suggestion.

In addition, there is also authority under a comment to Section 767(a) that allows leading questions of direct examination for “refreshing recollection, and examining handicapped witnesses, expert witnesses, and hostile witness.” As an attorney, find the balance in leading questions. A lawyer may have tactical reasons for not asking leading questions. This is supposed to be the witness testifying not the lawyer, so let the witness answer, but avoid halting the testimony as much as possible by providing leading questions where permissible.

Use Documents to Ensure Your Witness Tells the Story

It is easy for an attorney to use documents in a direct examination that fail to tell a story, and thus seem to waste the examination. Documents speak for themselves, and it is simple to have a witness read a document or a segment of the document, and make the testimony inadmissible because the document speaks for itself. Thus, it is important as a substantive matter, that the lawyer gets testimony that is actually meaningful. Don’t leave the judge or the jury with nothing but the exhibits themselves.

Of course, the documents themselves are important to a lawyer’s case. They are the tangible items the jury takes into deliberation. But once they are admitted into evidence, it is more important to have the witness drive the testimony rather than the documents themselves. Have the witness explain what the document is, and try to get the witness to offer testimony that could stand on its own without the documents.

For example, a lawyer could ask “What dispute did you have with X company last year?” The client then responds. Then the lawyer asks, “How did you first learn of X company’s mistake.” The client states that they sent him a letter. Next, the attorney places the Exhibit (the letter) on the screen and solicits testimony of the letter. This shows that the witness is driving the testimony. The document is now being used to supplement, corroborate, or emphasize the direct examination.

This type of questioning has many different effects: (1) it is obviously more interesting that simply reading a document and thus will likely help to keep a judge or jury more engaged than going through the documents one by one; (2) The witness is now providing testimony of what happened, when, and why; (3) Understanding what happened, when, and why then has a better chance of making the documents more understandable, which has the potential of making the trier-of-fact more convinced of the party’s case; and (4) the testimony does more that reaffirm what is in the documents and is independent evidence to support a trial court’s ruling which can help defend a judgement on appeal. As such, let the witness direct the testimony (with the attorney’s assistance, of course) not the documents.

Achieve Something in a Redirect Examination

Too many times lawyers tend to fall short of achieving anything in their redirect examinations, even after having a great direct examination. Why? Well, it likely has something to do with the fact that the attorney is much more prepared for the direct examination than the redirect. This results in rambling at times, and sometimes no more than re-emphasizing areas that the opposing party covered in the cross-examination. It is easy to see how this can happen. In a direct examination, the attorney has already presented the things the attorney believes the judge or jury need to know from the witness.

Because the direct examination has already offered the testimony that the lawyer thought to be material, it may help to achieve something in a redirect examination if attorney prompts the witness to answer a question that has been left unaddressed on cross-examination – such as a “why” question that the opposing counsel has purposely avoided. This can provide the judge or jury with what facts each side will rely on to argue alternative reasons for certain facts.

Hon. Michael J. Raphael provides a great final though on redirects when he writes: “[E]licit any helpful testimony that directly answers the other side’s contentions on cross-examination, and when that is done, sit down.”

Many of these suggestions are clearly easier said than done, especially as I sit here behind a computer writing about them. They are all tactics that are potentially very useful in getting the most out of a witness. It is important to make the direct examination of a witness as useful to the client’s case as is possible. Remember to let the witness tell the story not the attorney; let the documents supplement, corroborate, or emphasize the witness’ testimony; and if the attorney is going to redirect, achieve something. Get the witnesses testimony and make it worth it!


July 25th, 2018

Company car accident reports can be essential to changing the way a case turns out. An accident report has the power to change what may have been heading straight to litigation, to a settlement agreement in just a matter of days. Why? Well the answer is simple, the information provided in accident reports is a potential gold mind: i.e. party admissions from the defendant. However, getting the accident report is not so simple.

It is clear as to why a company would want to keep their accident report secret, and if they are keeping it a secret, usually there is something YOU should know in the report. So, in order to elevate yourself from simply being a good attorney to being a great attorney, get that accident report.

Step 1: Figure out if an accident report exists:

To figure out if an accident report exists, the easiest way to do this is to ask for it in the very first request for production. Be aware, the language used in this request must be specific in order to avoid the boilerplate objections of “overbroad, vague and ambiguous.” For example, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT,” is likely a sufficient request. However, knowing company attorney’s, the accident report is still likely to remain in their possession because the company will claim that the document flows from the work product doctrine or is privileged. Being a great attorney is foreseeing such a consequence as this. As such, your last request for production should demand a privilege log in the event that the opposing counsel withholds any documents or other information based on a claim of privilege, work-product, or otherwise.

In the alternative, you can ask for a request for production of documents with a notice of a deposition of the defendant employee and the defendant’s person most qualified. If you do this, it is important to ask, “Any and all accident investigation or incident reports for the SUBJECT INCIDENT and the purpose(s) of those reports.” Remember to meet and confer and subsequently file a motion to compel if opposing counsel persists on not providing the documents. The request for the purpose of those reports will be useful in creating an argument against work product and privilege in order to get the documents you need released.

Step 2: If an accident report does exist, must the defendant produce it?

As with most things in the law, the answer is that it depends. If it is under the work-product doctrine, the document itself must “reflect” an attorney’s impressions, conclusions, research, etc. Usually, an accident report is reported by a supervisor or an employee. These people are non-lawyers and thus necessarily do not fall under the work product doctrine. This is something that is essential to discover to assist in a motion to compel.

Secondly, California follows the “Dominate Purpose” test to determine if a document is privileged. This is specifically discussed in D.I. Chadbourne, Inc. v. Superior Ct., (1964) 60 Cal.2d 723. If the dominate purpose of the document is not necessarily for litigation, then it does not likely fall under privilege. For example, it the main purpose of the document is to prevent an accident from happening again, its dominate purpose is not likely for litigation but for safety. Furthermore, if a company uses an accident report every single time there is an accident, it is likely as a safety precaution rather than litigation purpose. However, a document may have multiple purposes. If that is the case, your job is to get testimony and argue that the dominate purpose of these documents is not for litigation, but rather for some other purpose. Find that purpose!

Step 3: Get the Testimony to Help You in Your Motion to Compel.

This can be trying, but with skill and technique you will likely get what you are looking for out of the defendant employee of the person most qualified. There are a number of different ways to do this. I suggest always starting with the first route I will provide here, and the second and third steps can differ depending on your case.

First, confirm with the witness you are deposing that an accident report actually exists. Then, ask whether they reviewed the report to prepare for their deposition. Next, ask if reviewing the report refreshed their memory. If they answer yes to these three questions, Evidence Code section 771(a) is enacted which provides in part, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party.” After this testimony, meet and confer and ask if the document will be produced in light of the testimony. Make sure to specifically cite to this Evidence Code. Likely the answer will be no, but they will have no legal basis for their argument.

If a document exists, but the answer to the latter two questions aforementioned is no, then it is important that you get testimony that debunks the argument that the accident report falls under the work product doctrine or is privileged. To do this, it is important to first lead the witness into the questioning to ensure that their mind is in the right place to get the answers you are looking for. For example, beginning a conversation on the importance and practice of safety in the workplace will likely get the witness on the track to thinking that the dominate purpose of the document is to protect safety. Thus, when you later ask what they believe the “dominate purpose” of the accident report is, they will likely provide you with the answers you desire.

Once you have lead the witness into your questioning, start with who prepared the document. It is easy to discern and debunk the work-product doctrine, especially if no attorney prepared it. Next, move into the dominate purpose. Ask questions such as: “does your company always fill out accident reports?; do they look after safety?; how do they train you on safety?” The more you can find a main purpose for the report rather than litigation; the easier your job will be when filing a motion to compel.

After you get the information you need, meet and confer in light of new evidence, then write your motion to compel.

When your motion to compel is granted, your whole case can change. The accident report can change what would have been a trial to a settlement much higher than expected. It is your job to be zealous, competent, and diligent for your client. As such, staying up to date on tricks like the one discussed in this blog will provide you with an advantage and a means to fulfill your duties.

For a more detailed analysis on this issue See:

Andrew Owen, The advocate Magazine 24-31, (April 2018).

Rejali Law Firm

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