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Hammoudeh v. Jada (CA2 10/09/09)

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This is a case about discovery sanctions. In Seidman, 563 Ariz. Adv. Rep. 17, Division One held that the trial court can’t strike a pleading and enter default as a sanction without holding an evidentiary hearing to determine whether the failure to make discovery was the client’s fault or the lawyer’s. In this case, Division Two finds a way around that.

Jada bought a used car from Hammoudeh; the story seems to be basically that he sold her a clunker and sued her when she wouldn’t pay. She counterclaimed. He tried to stonewall discovery and, although sanctioned once, continued to do so.  At one point he personally attested under oath that his responses were true and correct to the best of his knowledge and belief; the opinion doesn’t say whether this was routine boilerplate on a discovery form or some sort of separate affidavit (in either event, it may mean that his lawyer was beginning to catch on and protect himself). When his lawyer withdrew, Hammoudeh did nothing to supplement earlier discovery. He did not claim, says the opinion, that his lawyer had prevented him from making proper discovery.

Jada moved to strike the Complaint. Hammoudeh didn’t file a response but showed up at oral argument to request an evidentiary hearing. The court denied this and held a default hearing, apparently on Jada’s counterclaim. It lasted a couple of days; Hammoudeh attended the first day but not the second. He made no offer of proof.

On this record the court observed that it was “apparent from the record, and undisputed, that Hammoudeh was personally aware of, and responsible for, the inadequate discovery responses.” Hammoudeh’s personal fault was “readily apparent from the record,” the trial court made a specific finding of it, and so the court could not “say the court abused its discretion in concluding an evidentiary hearing was not necessary to determine fault.”

A commonsense result:  if the fault is already on the record, you don’t need to hold a special hearing to put it there. Properly used, this exception will eat the Seidman rule.

American Family Insurance v. Grant (CA1 10/8/09)

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This special action involves an issue that personal-injury lawyers run into all the time.  The court calls it an issue of first impression, though, and maybe it is. The question is how extensively you can discover into an expert’s life to try to show bias.

Lauren Allo had a UIM claim against AmFam arising out of a motor vehicle accident. It hired a doctor to review her medical records. He decided that many of her problems were pre-existing or unrelated. AmFam apparently denied the UIM claim. Allo sued for bad faith. She subpoenaed the doctor’s reports, correspondence, tax returns, financial statements, etc., for the prior 3-5 years. AmFam objected, though it agreed to produce all files the doctor examined for this case, lists it assumed it kept (as most experts do) of past cases he had worked on, and some other information. The trial court ruled that Allo was entitled the doctors IME reports for five years prior to the accident – which would mean nine year’s worth, the amount of his fees in each of those cases, and the requested financial/tax data.

The Court of Appeals accepted AmFam’s special action, finding that the issue is of statewide importance and is one on which  trial courts have disagreed (which perhaps admits that most judges, unlike this one, craft a ruling that people can just about live with).

The court said that although evidence of an expert’s potential bias is admissible, and although a litigant has a right to develop such evidence, these rights are balanced against the witnesses’ rights to be free from burdensome and intrusive discovery and the court’s right to prevent expensive, time-consuming discovery that serves no useful purpose.

The court first quickly ruled that the nine-year period – which was longer than the subpoena had requested – was too long. There was no support in the record for it. The opinion cites authority from other states approving 3-5 year time frames.

As for the substance of the subpoena, the court said that there is an obligation to try less intrusive forms of discovery first. Some jurisdictions, it says, require that the expert’s deposition be taken first (Allo hadn’t taken it), though the court said that this is not a requirement in Arizona. A subpoena may be used first but it cannot be overbroad. Relevant to this is whether the discovering party is able to obtain bias evidence in some other way; in this case, Allo had information from the Trial Reporter, some of the doctor’s prior depositions, and discovery from another case in which the doctor gave information about his income from IMEs.

The court refused to draw any bright lines regarding what information could and could not be obtained. But it expressly agreed that some courts had gone too far in allowing this sort of discovery when it merely produces more detail about things that simple cross-examination could make plain to a jury.

The court also thought it significant that AmFam and the doctor were basically willing to provide much of this information, though in less-intrusive form. On the other hand, it acknowledged that sometimes your discovery has to be detailed in order to get results.

The bottom line is that this sort of discovery is allowable “only in the most compelling of circumstances, and only after less intrusive means of obtaining bias-related evidence have been explored.”

And now for something completely different. We’ve griped about this before but there’s no reason not to do so again. The first named defendant in this special action, pursuant to the rule, is the judge, “The Honorable Larry Grant.” When the court sends out notice of the case, though, this is reduced to “Hon. Grant.”

What member of the legal profession could possibly believe that that is a graceful or appropriate way to refer to a judge? But the court didn’t, as we recall, used to do that, which means that somewhere, at some point, for some reason, somebody made an actual decision to do it that way. Surely it takes a closeted, clerical bureaucrat to believe that a judge would be offended by seeing only his last name in the caption or that “Hon.” is just a dandy abbreviation. Why is it acceptable to use just last names for everybody except “hons?”

Look, folks, here’s the deal: “the honorable John Doe” is the way to say it, and the only way. It’s not ‘honorable John Doe” or “honorable Doe” or “honorable John.” There is no slightest thing wrong with calling the case “Allo v. Grant.” The only lawyers who don’t know that are the same ones who address a judge on the bench as “judge,” a rude barbarism we used to expect only from pro se parties and criminal defendants. 

Kaufman v. Cruikshank (CA2 9/17/09)

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This special action arises out of a criminal case but says some things about the inherent power of the court to impose sanctions that might be mentioned in other contexts.

Kaufman is a lawyer. When the County Attorney’s office allegedly violated the terms of his clients’ plea agreement, he moved for an OSC against it. The trial court turned it down (as did the Court of Appeals on special action) and ordered Kaufman to pay the County Attorney’s legal fees defending it, finding it frivolous, unsubstantiated, and inappropriate. Kaufman also took special action from that, which the Court of Appeals accepted and reversed.

No criminal statute or rule allows a sanction of attorney’s fees for a frivolous pleading. The County Attorney therefore argued that the court had the inherent power to do it. A court clearly has inherent power to sanction; the question is whether its inherent power includes attorney’s fees.

“In Arizona we follow the general American rule that attorney fees are not recoverable unless they are expressly provided for by either statute or contract.” (The opinion quotes this verbatim, from an Arizona Supreme Court case. Why? The sentence is clumsy and ugly; prose style was not the sort of style Justice Gordon aspired to. Why not say it better?) “We conclude that, generally, an Arizona trial court may not require one party to pay another’s attorney fees in the absence of statutory or contractual authorization to do so” (this a quotation from this opinion). Except that in civil cases there are various situations in which the trial court can do precisely that (the opinion acknowledges this and cites some appropriate cases). But you can’t do it in criminal cases.

The thing to remember is that to get attorney-fee sanctions in a civil case you do need some authority for it, whether statute, rule, or case law allowing it in that situation. That you need authority for taking a legal position should not surprise, though some lawyers spend a career affecting offence at the thought.