Recent Articles
San Diego Asian Journal
July 10, 2015
Like a game of chess, preparing a case for trial involves strategy, since it is the end of the road for a dispute that cannot be resolved through settlement or other out-of-court negotiation. Trial litigation can be costly, time-consuming, and unpredictable in the hands of a jury. One of the most powerful strategic tools for trial is the use of expert witnesses. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Expert witnesses are used primarily in jury trials to prove the amount of damages a plaintiff can recover for his injuries. Securing the aid of a qualified expert in negotiations for settlement can also avoid costly litigation. Therefore, choosing qualified witnesses is crucial to a favorable outcome for your case.
In a civil trial in Superior Court, a jury randomly selected from the public usually determines the amount of damages to award a plaintiff. In a personal injury case, for example, general damages stem from physical injuries and mental anguish. Special damages are out-of-pocket expenses that can be determined by adding together all the plaintiff's quantifiable financial losses, such as past and future medical expenses. The difficulty for the jury lies in assigning an exact dollar amount to a subjective injury. The damage award can range from minimal to substantial depending on the severity of an injury, the skill of the attorneys, and the sensitivities of the jury. Given this subjectivity, it is crucial to choose qualified expert witnesses. Some important considerations when choosing an expert include the expert’s capacity to organize ideas, express them readily, and interpret them are significant stepping-stones to success. The value and strength or weakness of an expert opinion is in proportion to the character of the expert, his learning, his experience with and study of the matter involved, and his freedom from bias against plaintiff or defendant (e.g., watch “The Verdict” starring Paul Newman relating to the importance of expert witnesses at trial). Moreover, there are other variables to be considered in determining whether or not to use a particular expert as a witness. Among these are availability, cost of services, experience, and reputation. Since his testimony may be central to the establishment of facts, his integrity and actual ability (as distinguished from his technical knowledge) may be of great consequence. The most commonly sought-after expert today is the medical expert. A great percentage of judgments obtained in personal injury litigation depend purely on medical testimony rather than on legal arguments. One must assess the type of doctor necessary, success rates in previous cases as a witness, and hourly fees. The key is to help a jury understand and explain how these injuries specifically relate to the plaintiff’s general damages of pain and suffering and special damages of past and future medical expenses. For example, the expert witness, “Dr. Neurologist,” would explain the MRI, CT and various scans and medical reports to the court and members of the jury to prove the existence of a skull fracture, brain injury and its severity. In cases involving traumatic injury, a psychologist or neuropsychologist would be an ideal expert witness to assess damages. The expert could explain risk factors associated with brain injury, including memory loss, mood, behavior and deterioration in performance in school and work. Moreover, a psychologist could explain the effects the traumatic injury causing significant discomfort psychologically and emotionally. Psychologist expert witnesses analyze how their patients became extremely nervous, agitated and emotionally upset due to the physical pain, physical disfigurement, and psychological trauma as a result of their injuries. This testimony would aid the jury in determining general damages for pain and suffering and mental anguish. A psychologist would also help the jury and court in their determination of special damages for future medical expenses should the plaintiff require physical therapy or psychological counseling in the future. Special damages are derived from the personality disorders and deteriorated academic performance that necessitates ongoing psychological counseling caused by the injury. The weight given to the expert's opinion may depend on how impressive his background and experience. The good expert witness must understand the natural laws relating to his field and be capable of applying common sense to their interpretation and application. Generally, the more formal education and practical experience a person has had, the better he will be as an expert witness. A person of extensive education and experience may greatly impress a juror and will eradicate any idea that the opinion of the expert will be biased. The fact that an expert has written books or has had articles published may be an important factor in his selection. The reputation of the school from which the expert received his academic degrees may also be significant. In addition to education and experience, a person's reputation among other experts in the same field is important. Even more significant may be his reputation among lay people— a person not well thought of by his peers may be very highly esteemed by the general public. In addition to background and experience, there are many personal factors that should be considered. Thus, an expert’s appearance and general demeanor, age, personality, honesty, intelligence, and speaking ability should be weighed. Often, it is the personality rather than the testimony of the expert that the jury remembers. If a jury has the impression that an expert is being patronizing or snide, they may completely disregard his opinion. Similarly, the selection of an overly shy person as an expert witness should be avoided, as the jury may not credit his authority. Furthermore, the value of an expert depends upon how thoroughly he can demonstrate what he knows to the jury. He or she should be chosen with a view to how he may impress the jury in matters of speech and tone of voice. He should be able to command the attention of the court and the jury, and he should express himself in language that the average juror can easily comprehend. Generally, he should have the ability to answer briefly and to the point without volunteering excessive information. If the case is to be tried before a judge alone, the expert need not be required to express himself in such simple language as would be required before a jury; most judges have considerable experience in hearing technical aspects of cases. Ultimately, the final determination of experts will depend on your budget and the expectations of the settlement or jury award. But the addition of credible experts could make a difference in not only winning your case, but also receiving the maximum amount of damages. About Gerard Pizarro: Gerard serves as a Senior Attorney at California Law Partners, APC, and specializes in head trauma personal injuries, employment/corporate litigation, and government contracting. To contact Gerard for questions or comments, info@californialawpartners.com or call (619) 320-6065. June 26, 2015
BY: WENDY PIZARRO CAMPBELL
SENIOR ATTORNEY, CALIFORNIA LAW PARTNERS, APC Homeownership remains an important symbol of achieving the American dream. Hardworking folks celebrate the fruits of their labor by saving for a down payment and investing in real estate for themselves and their family. The family home becomes a safe haven for shelter, security and special memories. As we grow older and our children progress into adulthood, we are faced with the issue of passing down our assets. One of the most common questions that we receive are: 1) How do I pass down my primary home to my children or grand-children, and 2) What is the best way to do this legally with minimal tax consequences and costs? This article discusses four common ways of passing down a home to your heirs: 1) Re-titling property to an adult child’s name; 2) Joint Tenancy with a Right of Survivorship; 3) Tenancy in Common (interest in property only) and 4) Revocable Living trust (our recommended solution). One method for a homeowner is to re-title the property outright in the name of his adult child by way of a deed. Often times, real property is reassessed at market value, and if it is sold or transferred, then the property taxes can increase dramatically. Fortunately, in California, it is tax-free to transfer title of a primary residence from a parent to a child, or from grandparents to their grandchildren. Pursuant to Proposition 58, a property transfer between a parent and child is excluded from tax reassessments. Proposition 193 applies the same exemption for property transfers between grandparents to a grandchild. Such transfers subject to the exception are: 1) a homeowner’s primary residence and/or 2) transfers of up to $1 million of real property other than the primary residence. For example, Father re-titled his primary home by deed to Adult Son. As the new owner, Adult’s Son’s taxes are calculated based on the original base year value, instead of the current market value when he received title to the home. One disadvantage to this parent-to-child transfer method, is that you forfeit control of the property. Should you want to remain in the driver’s seat, it is recommended that you re-title the property via Revocable Living Trust. The same tax-free exemption is also applied to transfers into a trust for estate planning purposes as discussed below. Secondly, another solution for passing down property is through a Joint Tenancy with Rights of Survivorship. This transfer method, commonly used by married couples, provides an equal undivided ownership interest to each joint tenant. In a Joint Tenancy, when one of the joint tenant dies, the remainder is transferred to the surviving joint tenant(s). For example, Harry and Wilma acquire their home by deed in National City as Joint Tenants with language that clearly states “a Right of Survivorship”. Upon Harry’s death, Harry’s interest in their home will transfer automatically to Wilma. Accordingly, Wilma will acquire Harry’s interest and own their home outright. Moreover, another solution for passing down property is through a Tenancy in Common. Each Tenant in Common has an undivided ownership interest in the property with equal right to possess the property, even though the tenants may have unequal ownership interests. Each co-tenant has the right to transfer his or her ownership interest by deed, will, or other conveyance. Unlike a Joint Tenancy, a Tenancy in Common does not have a Right of Survivorship. When one co-tenant dies, his or her interest does not automatically pass to the other co-tenants. For example, three Cousins, Ana, Ben and Cate, own equal interests (1/3 each) in a vacation home as Tenants in Common. If Cate dies, then her 1/3 interest passes to her child, Dave, and consequently, Ana, Ben and their nephew, Dave, will then each own 1/3 interest in the vacation home as Tenants in Common. As a fourth and we believe the best solution for a homeowner, is the re-titling of the home in the name of a Revocable Living Trust. This can be done by executing and notarizing a trust agreement, preparing a quit claim deed, and recording the deed with the County Recorder’s office. For example, Mark and Myra Santos, a married couple, prepare an estate plan with a Revocable Living Trust called “Santos Family Trust”. In order to ensure that their Chula Vista residence would be distributed to their children as beneficiaries, they prepared and recorded a quit claim deed in the downtown San Diego County Recorder’s office to properly re-title the home in the name of “Santos Family Trust”. This will be a tax-free transfer, and property taxes will be calculated based on the Prop.13 base value instead of the current market value and with annual increases capped at 2%. Furthermore, in addition to the advantageous tax benefits, the main benefit of a Living Trust transfer, is your ability to exercise control over the property and dispose of it during your lifetime. A living trust allows you to remain in the driver’s seat while you are alive, and allows you to make changes only to your Living Trust so that you can just re-title the property once into the name of the Trust. Ultimately, there are various transfer methods available for transferring real property to your heirs. However, re-titling property via a Revocable Living Trust, provides the best solution for estate planning purposes to ensure your next generation is left with security, shelter, and loving sentiments. About Wendy Pizarro Campbell: Wendy serves as a Senior Attorney at California Law Partners, APC and specializes in estate planning and asset protection. For any questions or comments, please contact info@californialawpartners.com or (619) 320-6065. This article is for general, informational purposes only and does not establish an attorney-client relationship. June 15, 2015Managing Your trust property 101
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