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PAPER PUSHERS, TAKE HEED OF APPELLATE COURT RULING The Third District Court of Appeal used the occasion of a recent ruling to tell lawyers exactly how the bench feels about excessive papering. “Many attorneys apparently believe that every scrap of paper that is generated in the legislative process constitutes the proper subject of judicial notice,” Justice Richard Sims wrote in an Aug. 30 opinion signed by colleagues Arthur Scotland and Rod Davis. “Consequently, it is not uncommon for this court to receive motions for judicial notice of documents that are tendered to the court in a form resembling a telephone book.” Sims was quick to point out in a footnote that the appellant in the case, Performance Plastering Inc., was not among the culprits deluging the court with myriad pieces of paper. In fact, Sims and his colleagues granted two of the four requests for judicial notice of legislative documents included in Kaufman & Broad Communities v. Performance Plastering, 05 C.D.O.S. 7852. But not before Sims and his colleagues laid out a little lesson for attorneys. “Preliminarily, it is crucial to note that resort to legislative history is appropriate only where statutory language is ambiguous,” wrote Sims. But, he added, “Even where statutory language is ambiguous, and resort to legislative history is appropriate, as a general rule, in order to be cognizable, legislative history must shed light on the collegial view of the Legislature as a whole.” The justices went on to include a brief how-to on preparing “properly cognizable” requests, and included a list of “legislative history documents that have been recognized by the California Supreme Court or this court” as appropriate for judicial notice. � Jill Duman ADMITTING WHEN YOU’RE WRONG California Supreme Court Justice Marvin Baxter did something recently that jurists don’t often do: He agreed that one of his own rulings might be wrong. In an Aug. 25 decision upholding the death sentence of Mario Gray, Baxter signed onto Justice Ming Chin’s concurring opinion that said the court “should consider disproving” its 2000 ruling in People v. Coddington, 23 Cal.4th 529. In that case, which also affirmed a death sentence, Baxter said prosecutors shouldn’t comment during closing arguments on defense attorneys’ tactical decisions not to call experts who had examined forensic evidence. He said that would violate the work-product privilege of defense attorneys who might think the experts’ testimony is less favorable than others called as witnesses. “If a party were permitted to use information about pretrial investigation that reveals opposing counsel’s thought processes and reasons for tactical decisions,” Baxter wrote in Coddington, “thorough investigation would be discouraged.” The justices referred to the five-year-old ruling when they affirmed the death sentence in People v. Gray, 05 C.D.O.S. 7651, in which the prosecutor had pointed out that the defense presented no forensic experts for rebuttal purposes. As in Coddington, they ruled the error harmless. Chin, who concurred in Coddington, wrote in his concurrence in Gray that the justices should have gone further. He called Coddington a “flawed” ruling that’s inconsistent with the general rule that prosecutors may comment on the defense’s failure to call a particular expert or witness. “I see nothing in the prosecutor’s argument in either Coddington or the present case that in any way invaded or infringed the work product or privacy of the defense team,” Chin wrote. “Indeed, it seems quite reasonable and legitimate for the prosecutor to observe that although all the forensic evidence linking defendant to the crimes was passed on to defense experts, none of them was called to contradict the prosecution experts.” Justice Baxter not only signed Chin’s concurrence, but wrote a separate concurrence in which he agreed that Coddington, “merits re-examination.” It goes to show that even Supreme Court justices can second-guess themselves. � Mike McKee CASTING A WIDER NET A local plaintiff lawyer saw a judgment worth about $20 million dashed last week because jurors weren’t given enough choices for who to blame. San Francisco trial lawyer Robert Arns represented Jason England, an iron worker whose spine was severed in a construction accident, and England’s wife. Though a 2003 jury found England 10 percent responsible for the accident that left him a paraplegic, it placed the rest of the blame squarely on the shoulders of general contractor Swinerton Builders and subcontractor SME Steel Contractors. But last week, the First District Court of Appeal said that England’s employer, Pacific Erectors, which was not involved in the lawsuit, should have been included in the list of possible parties to which jury members could’ve assigned responsibility. That didn’t happen. According to the unpublished Aug. 29 opinion, when the lawyers and trial judge were hammering out jury instructions, the plaintiff asked that Pacific Erectors be left off the verdict form, saying “there was no reasonable basis” to place any blame there. But to the contrary, the First District found “there is substantial evidence from which a jury could conclude that PE was independently negligent.” “Although this evidence was not overwhelming,” it was enough, Justice Laurence Kay wrote. Justices Patricia Sepulveda and Maria Rivera concurred, reversing the trial judgment. San Francisco civil appellate lawyer William Hancock, who worked on the appeal for Swinerton Builders along with Horvitz & Levy partner Lisa Perrochet, said that if the jury had concluded PE should share in the fault, it might have reduced the amount the other two companies had to pay. “When you’re talking about big numbers like this, small percentages make a big difference,” he said. “It was definitely the right decision,” agreed Duane Grummer of Lynch, Gilardi & Grummer, who represented SME Steel Contractors at trial and on appeal. He said he’s looking forward to retrying the case. But Arns said his first move will be to ask for a rehearing. “I have nothing but respect for these justices. They are scholars,” Arns said. “But I could not more vehemently disagree with their taking away [the Englands'] verdict under the grounds that were given.” � Pam Smith

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