Small Widget Spot

April 4, 2017

What it Means to be Board Certified in Civil Trial Law

National Board of Trial Advocacy, Guy O. Kornblum, Charlie Cochran, Joe Harbison

KCEH is both unique and fortunate to have three of our principals Certified in Civil Trial Law by the National Board of Trial Advocacy. Guy Kornblum, Charlie Cochran and Joe Harbison each have achieved this level of both recognition and achievement. Certification means that each has fulfilled a rigorous qualification process.

To earn Certification in Civil Trial Law, the attorney must:

  1. Furnish evidence of his or her good standing in the state of his or her bar admission, or if admitted in more than one state, in the state of his or her principal practice.
  2. Show that immediately preceding application, the attorney has five years in the actual practice of Civil law (Guy, Charlie and Joe have combined over 100 years).
  3. Make a satisfactory showing of substantial involvement in civil trial law, with at least thirty percent of his or her time spent practicing civil trial litigation during the three years preceding the filing of the application.
  4. Make a satisfactory showing of substantial involvement relevant to the particular specialty certification by personal participation in at least forty-five days of trial (a day of trial is not less than six hours) during which the applicant examined or cross-examined witnesses, delivered an opening statement or closing argument or conducted a voir dire jury examination.
  5. Show that during the forty-five or more trial days the applicant must personally have:

(a) served as lead counsel in at least five jury cases;

(b) substantially participated in at least five jury cases which have proceeded to verdict;

(c) presented at least four closing arguments;

(d) presented at least eight opening statements;

(e) conducted cross-examination of at least fifteen expert witnesses;

(f) conducted direct examination of at least fifteen expert witnesses;

(g) conducted cross-examination of at least twenty-five lay witnesses;

(h) conducted direct examination of at least twenty-five lay witnesses; and

(i) conducted at least five voir dire jury examinations or (in courts which do not permit counsel to conduct voir dire examination) submitted proposed jury questions for the court at least ten times or a combination of examinations and submissions acceptable to the Standards Committee.

In Addition:

  1. The attorney must have actively participated in one hundred additional contested matters involving the taking of testimony (cases included in your substantial involvement may not be included as part of your contested matters). This may include trials (jury or non-jury); evidentiary hearings or depositions; and motions heard before or after trial, which may include arbitration hearings, welfare hearings, and workers compensation matters not tried to a court.
  2. The attorney must demonstrate substantial participation in continuing legal education and the development of the law with respect to the specialty, in the three-year period immediately preceding application either:

(a) By attendance and/or electronic participation in not less than forty-five hours in programs of continuing legal education in the specialty or ethics, approved by the Standards Committee, or

(b) By equivalent participation through, but not limited to, the following means, approved by the Standards Committee:

(I) Teaching courses or seminars in trial law or ethics;

(II) Participation as panelist, speaker, or workshop leader, at educational or professional conferences;

(III) Authorship of books, or of articles published in professional journals, on trial law;

(IV) A combination of the three subsections above.

References, Examination, and Application:

  1. The attorney must submit the names of ten to twelve references substantially involved in the relevant field of trial law, and familiar with the applicant’s practice in that field including at least three judges before whom the applicant has tried a matter in the relevant field.
  2. That attorney must pass a written examination to test his or her proficiency, knowledge, and experience in civil trial law, so that the applicant may justify his or her representation of specialization to the public.
  3. The attorney must submit a copy of a legal writing document, no more than three years before the date of application which he or she has prepared, but not necessarily published. The quality of the legal document will be evaluated to help determine whether the applicant is qualified for certification. The rules provide that “[t]his will be a substantial document in the area for which the applicant seeks certification, containing concise and accurate writing, stating facts (either actual or hypothetical), stating applicable law, analysis of how the law applies to the facts, written in an appropriately argumentative manner and well constructed (i.e. organized, grammatical, demonstrative of good syntax and usage) . Acceptable documents include, but are not limited to: briefs (trial or appellate), motions for summary judgment, bar journal, law review and legal magazine articles, motions in limine, etc….”

These requirements have changed some over the years, but Guy, Charlie, and Joe fulfilled those that applied when they were certified. And more important they have continued to be re-certified every 5 years in order to maintain this certification.

We are very proud that our firm has 3 principals who have achieved this level of performance in Civil Trial Law, which is unique for a firm of our size.

December 3, 2016

Pursuing Arbitration in UM/UIM Claims

Pursuing Arbitration in UM/UIM Claims

How Much Auto Insurance Coverage Should I Have?

I often state that it is our recommendation that anyone owning an auto have primary liability (protection if you negligently hurt others) policy limits of $300,000 per person and $500,000 per accident. In addition, and an excess policy above that which provides at least $1 million in additional liability coverage and also if you are injured by an uninsured or underinsured motorist protection.

As to the latter, if you are injured by the negligence of a third person with no insurance or insufficient coverage to compensate you or others in the car, then your policy kicks in and provides additional coverage. For example, if you have the total of $1.5 million I have recommended, and you are injured by a negligent driver, you have that additional sum which is available to pay for your injuries. If the negligent driver has $100,000 in coverage you have $1.4 million. Your UM/UIM protection pays if a) the other driver is negligent (i.e. you have added to his or her liability protection on your policy), and b) causes injury, (i.e. medical expenses, pain and suffering).

I also stress that in order to qualify for this coverage you must purchase liability insurance in the same amounts as the UM/UIM insurance that you want. Make sure you cover this with your agent when discussing your auto policy.

Pursuing Arbitration

Let’s discuss how the matter proceeds if the UM/UIM claim is denied or challenged. In the case of UM/UIM claims, California law mandates that these claims be arbitrated, and that the decision of the arbitrator is final and cannot be appealed except in rare cases. See Insurance Code section 11580.02.

If you have gotten this far without a lawyer, I highly recommend your engage one to represent you. What will take place now needs an experienced lawyer to guide you through the process.

Arbitration is a formal proceeding in which the parties submit their dispute to a neutral (lawyer or retired judge usually), who has authority to make a decision, based on the evidence presented. The decision of the arbitrator is binding on the parties.

What is a Mediation?

One thing that might happen before an arbitration is that the parties agree to mediate the UM/UIM claim. A mediation is a meeting of the parties supervised by a “neutral”, usually a retired judge or experienced lawyer, who oversees the negotiation of the claim. By law, what takes place in preparation for, during and after a mediation is confidential. Nothing that takes place during this process can be used by any party against the other, so the parties can candidly discuss their views of the case and settlement. It is a far less expensive and risky way of resolving any dispute, including UM/UIM claims.

Arbitration involves the presentation of the case to an arbitrator much like a trial. There is no jury and the arbitrator performs the same function as a judge, and also the jury as a finder of fact. An arbitration is conducted in a private office, not in a courthouse. While it is informal in the sense that all the formalities of a court trial are not followed, it is a formal proceeding in that it follows the usually format of a trial. The presentation by both sides follows the normal court trial process: briefs are filed, exhibits presented, opening statements are made, witnesses are called (lay and experts such as medical witnesses), and when all parties have rested (i.e. finished their evidentiary presentation), the lawyers argue the case and possibly file post trial briefs.

The arbitrator then decides the case usually taking some time to review the evidence and the briefs. The decision of the arbitrator is usually written and is called an “award.” Once it is served on the parties, it can be converted to a court judgment, which then is enforceable against the defendant insurance company if the award is not promptly paid. If the award is for money in favor if the insured (it can be a zero which means the insurance company owes nothing), it should be paid promptly. Since tje arbitrator’s decision is final, there is no appeal, so to this extent it is an expedited process. If the insurance company does not promptly pay the award, it may be in “bad faith” which means the insured has a second suit for this delay or failure to pay as a separate claim.

In addition to representing our clients, Mr. Kornblum also serves as an expert witness in insurance claims and legal malpractice claims, and as a mediator. For more information contact our San Francisco office at 415-440-7800.