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April 24th, 2012

Transparent Tactics by L.A.’s Top Trial Lawyer May Warrant Contempt Charges, Bar Discipline

The leader of Los Angeles’s trial lawyers association appears to have reneged on a last-minute personal-injury settlement that he came to regret, and in doing so he has put a Superior Court judge in a difficult and unprecedented situation.

As reported by The Recorder, California’s leading legal journal, the facts of the case are these: Pablo Hernandez III was to be transported from a Los Angeles-area hospital to a psychiatric facility in San Diego.  Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative.  After a few minutes of traveling on a California interstate, one of the EMTs heard the sound of the buckle dropping to the ambulance floor.  As the EMT reached back toward the patient, Hernandez jumped out of the moving vehicle onto the freeway.  His lawsuit blaming the ambulance company’s failure to sufficiently restrain him alleged that his subsequent leap on to the freeway resulted in “severe, permanent brain injury” (see Hernandez v. Schaefer Ambulance Service).    

After a weeklong trial in which Hernandez’s lawyers sought $21 million in damages, jurors deliberated just four hours before announcing they’d reached a verdict.  Since the deliberation was so quick, lawyers for both sides reasonably presumed — based on their experience — that the jury would return a verdict for the defense.  (After all, why would any reasonable person conclude that someone who jumps out of a moving vehicle has a right to get rich beyond his lawyer’s wildest dreams?)  But the plaintiff’s lead lawyer, C. Michael Alder of Beverly Hills, hoped to salvage at least something from the case and quickly requested a recess to facilitate last-minute settlement negotiations with defense counsel.  The parties conferred in the hallway, with their clients present, for nearly a half-hour and eventually agreed to a settlement worth $350,000. 

When the parties returned to the courtroom to announce they’d reached a settlement, the specific dollar amount was not spoken and the defense attorney was unable enter it into the record before the plaintiff’s team of attorneys headed to the hallway to debrief dismissed jurors.  As both sides then mingled with jurors they learned, in fact, that the jury’s verdict would have favored the plaintiff with a damages award of $9 million.

That’s when chaos ensued.  Plaintiff’s attorney Alder realized that his error in judgment had just cost him and his client more than $8 million.  He rushed back into the courtroom and began arguing to the judge that he had made a mistake and that when the settlement was reached, he did not have specific authority from his brain-damaged client to accept $350,000 of free money, even though his client was present and conferred with him throughout the earlier hallway negotiations.   

As quoted by The Recorder, a member of the defense team said it is impossible to imagine a trial lawyer of Alder’s experience, having initially asked the jury for $21 million, would settle for $350,000 without the consent of his client.  In any case, “If plaintiff is allowed to get away with such gamesmanship in this case, there is nothing to prevent any plaintiff’s counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial.”

All of which leaves presiding Judge Michael Johnson in an unprecedented predicament.  He’ll hear final arguments soon and must either enforce the settlement that, technically, was not entered into the record, order a new trial and/or even consider some sanction against Alder.

That Alder was elected by his peers and serves as president of the Consumer Attorneys Association of Los Angeles poorly reflects on attorneys in Southern California, and again shows why California more broadly has consistently drawn Judicial Hellholes criticism.  Alder’s conduct in this instance raises profound and troubling questions.  If it can be demonstrated that he falsely told the court that his client agreed to the settlement, he should be held in contempt and referred to the bar for disciplinary action.  If his client did not agree to the settlement, as Alder now contends, then the right response by Judge Johnson would be to dismiss the claim based on Alder’s initial representation that an agreement had been reached.  But in no way should the court consider giving Alder a “do over,” although Alder’s client may wish to consider a malpractice claim against Alder.

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